A constitutional challenge against the February Settlement Regularization Law is pending before the Supreme Court of Israel. The law aims to “legalize” illegal settlements in the West Bank by, among other means, expropriating land privately owned by Palestinians. On Dec. 4, Chief Justice Esther Hayut issued an order nisi which shifts the burden to the government to satisfy the Court that the law is constitutional. She also determined that an extended panel of nine justices would hear the case.
Unsurprisingly, the Regularization Law has been extremely controversial. It has provoked extensive international criticism and it was one of the reasons cited by the Obama administration for allowing Security Council Resolution 2334—condemning Israel’s settlement activities—to pass. But perhaps the most consequential opposition to the Regularization Law comes from an unusual source: Israel’s own Attorney General Avichai Mandelblit, who recently filed a brief to the Supreme Court outlining his position.
Considering the weight that the office of the attorney general traditionally carries with the Israeli Supreme Court, the attorney general’s arguments are likely to have a significant impact on the outcome of the case. Yet, alongside his objection to the Regularization Law’s attempt at wholesale expropriation of land in favor of illegal settlements, the brief contemplates alternative legal fixes that could prevent the demolition of settlements built illegally on private land under certain conditions, on a case-by-case basis. This suggests that even if the Regularization Law does not survive judicial review, it has already put pressure on the Israeli legal establishment to come up with other, less heavy-handed (but equally controversial) ways to preserve illegal construction in settlements.
Mandelblit declined to defend the Regularization Law in Court; He informed the government well before the law was passed that the law is unconstitutional and that it violates Israel’s obligations under international law. Mandelblit’s decision created a peculiar situation: the Attorney General’s office, which normally defends the government’s position in the courts, filed a brief opposing the law and urging the court to strike it down. The government had to retain private counsel for these proceedings, who submitted their own brief. The Knesset’s legal advisor filed yet another brief, arguing (very briefly) that the law should be upheld primarily on the ground that it raises non-justiciable political questions. 28 legal scholars filed an amicus brief in which they conclude that “The Regularization Law is unprecedented in Israeli law… It constitutes a grave violation of a long line of fundamental principles of Israeli constitutional law and international law that cannot be justified” (my translation).
The attorney general didn’t just urge the court to strike the law down. In March he proposed an arrangement to the court, according to which the government would maintain the status quo until the court decides whether to issue an injunction against the implementation of the law for the duration of the proceedings. That meant that the law’s provisions that provide for the expropriation or reclassification of land would not be implemented, while administrative enforcement proceedings against illegal construction in settlements that the law covers would be frozen. The court blessed this arrangement in the absence of any objections from the other parties to the case. In August, at the request of the attorney general, the court gave this arrangement the effect of a temporary injunction, essentially enjoining the government from implementing the most contentious provisions of the law. I should emphasize how extraordinary the situation is: The government’s own lawyer asked the Supreme Court to formally enjoin the government from implementing what he views as unconstitutional legislation.
The Attorney General’s Argument
In a nutshell, the Regularization Law presents the Supreme Court with novel legal questions. It is a unique case of Knesset legislation that aims to directly regulate property rights over land outside of Israel’s jurisdiction. Questions arise as to the application of both Israeli constitutional doctrine and customary international law in these circumstances. That being said, it is likely that the court would find that the law violates the property rights of Palestinians in a manner that is inconsistent with Israeli constitutional doctrine. Moreover, the law flies in the face of the Supreme Court’s longstanding interpretation of international law, which prohibits construction of civilian Israeli settlements on privately-owned Palestinian land absent a military purpose.
The attorney general’s brief touches on all of these issues. The bottom line is that the Regularization Law does not meet the constitutional requirements under Israeli law. As for international law, the attorney general seems to suggest that international law does not provide an independent basis for Israeli courts to strike the Regularization Law down. But he did assign substantial weight to international law in interpreting and applying Israeli constitutional doctrine. What follows explores the attorney general’s positions on the key legal issues.
Can the Israeli Knesset Legislate for the West Bank?
The petitioners argued that the Regularization Law had been enacted ultra vires because the Israeli parliament does not have jurisdiction to directly apply its laws to the West Bank. (Israel has not extended its jurisdiction to the West Bank, which is governed by a combination of the international law of belligerent occupation, old local law, and military law.) The amicus brief further emphasized that applying deeply harmful legislation to Palestinian protected persons under belligerent occupation, who did not have the opportunity to participate in the legislative process, is undemocratic.
The attorney general concluded that the law is directed at the Israeli authorities that govern the West Bank, led by the military commander in that area. As Israeli authorities, they are compelled to follow Knesset legislation, including the Regularization Law, unless the court strikes it down. At the same time, the attorney general maintained that the military commander in the West Bank is legally required to implement the law’s provisions through military legislation. He based this conclusion on the difference between the legal regime that applies within Israel’s jurisdiction and the one that applies in the West Bank, where legislative authority is vested with the military commander (subject to the requirements of international law). The conclusion that the the Regularization Law would not be operational unless the military commander implements it through military measures allowed the attorney general to largely avoid the thorny fundamental issue of whether and under what circumstances the Knesset can directly apply its legislation extraterritorially to the West Bank (as opposed to Israeli nationals residing there).
Is the Regularization Law Subject to the Customary Law of Belligerent Occupation?
From an international law perspective, the answer to this question is, of course, yes. But the attorney general declined to directly consider in his brief whether the Regularization Law violates international law. (As previously mentioned, he did opine that the law violates international law during the legislative process.) Instead, the attorney general maintained that there is no need to reach this issue in light of his conclusion that the law is unconstitutional under Israeli domestic law. The attorney general implied that determining whether the law violates international law wouldn’t matter for the outcome of the case anyway, because under Israeli law, primary legislation can contradict customary international law. Still, the attorney general relied heavily on international law in applying and interpreting Israeli constitutional doctrine.
The Law’s Validity under Israeli Constitutional Law
In previous posts I addressed the preliminary issues concerning the extraterritorial application of Israel’s Basic Law: Human Dignity and Liberty in the West Bank:
From the domestic perspective, can Palestinian residents of the West Bank rely on Basic Law: Human Dignity and Liberty, Israel’s main constitutional human rights norm, to challenge the law? This is an open question. The Supreme Court has stopped short of declaring that the Basic Law covers residents of the West Bank who are not Israeli citizens (see here, concerning Gaza settlers׳ petition against their eviction in the framework of the 2005 disengagement plan; and here, Hebrew). But the Regularization Law presents the Court with a unique case of Knesset legislation whose primary aim is to regulate land outside Israeli jurisdiction. There is reason to expect that the Court would determine that residents of the West Bank could rely on the Basic Law to challenge the law under these unusual circumstances. A different conclusion would mean that the Knesset would be allowed to essentially do as it pleases in the West Bank.
This is basically what the attorney general argued, noting that the other parties did not contest the applicability of the Basic Law in this case. According to the brief, if the Knesset can compel the military commander in the West Bank to implement the law as the attorney general concluded, “it is obvious that the protections the Basic Law affords against harmful legislation should apply….” The fact that the Regularization Law, as primary legislation, can trump conflicting international law in Israeli courts, the attorney general continued, further supports the application of the Basic Law. “Any other decision,” he emphasized, “would lead to the conclusion that such Knesset legislation would not be subject to judicial review – a conclusion that would contradict basic principles of the Israeli control over [the West Bank], and the Israeli legal system in general” (my translation).
Importantly, according to the attorney general, the application of the Basic Law in this case should take into account the unique status of West Bank as well as the international law principles that have guided the administration of that territory for decades. This could mean that in this case certain rights, such as the property rights of protected persons under the international law of belligerent occupation, would enjoy greater constitutional protection than they would if the law in question were an ordinary domestic law.
After establishing that the Basic Law applies, the attorney general moved on to consider whether its requirements have been fulfilled. As I explained before:
Primary legislation that infringes upon constitutional rights must meet two requirements under the Basic Law: it must serve a proper purpose that befits Israel’s values as a Jewish and democratic State, and it must be proportional. Proportionality requires that there be a rational connection between the means chosen by the legislature and the law’s purpose; that those means be the least harmful way to achieve the law’s purpose; and that the benefits arising from the law outweigh the harm to constitutional rights.
Article 3 of the Regularization Law provides for the expropriation of privately owned land on which a settlement is built, as well as the reclassification of land where private ownership has not been established as government land within one year of the law’s enactment. The attorney general found that those provisions constitute a grave violation of the right to property, enshrined in article 3 of the Basic Law. He relied on both the case law of the Israeli Supreme Court and customary international law in reaching this conclusion. The attorney general traced the obligation of the military commander to respect the property of protected persons under belligerent occupation, primarily enshrined in Regulation 46 of the Hague Regulations, all the way back to the 1863 Lieber Code. He also relied on the Supreme Court’s case law prohibiting the construction of civilian settlements on land privately owned by Palestinians, and the government’s own longstanding policy of prioritizing the enforcement of demolition orders issued for such settlements.
Furthermore, the attorney general concluded that the law violates the right to equality, which is derived from the right to dignity enshrined in article 2 of the Basic Law as well as article 27 of the fourth Geneva Convention. The attorney general argued that the law discriminates between Palestinians and Israelis residing in the West Bank by overwhelmingly prioritizing Israelis over Palestinians in property disputes.
Do those violations serve a proper purpose? The attorney general identified the purpose of the law as preventing the evacuation and demolition of settlements that are not located on public land, allowing for their retroactive “legalization” under local planning and construction law, and addressing the plight of settlers who relied in good faith on the support of the state and its organs, only to discover that due to measuring mistakes the land on which their settlements were built was not in fact public land (according to the attorney general, this is about a third of the illegal construction the law is designed to address).
Of these elements, the attorney general argued that only the third could be deemed a proper purpose under certain conditions. He explained that the law’s sweeping provisions would allow for the “legalization” of virtually any illegal Israeli construction in the West Bank, even when it was carried out in bad faith and willfully violated Palestinian property rights. According to the attorney general, the law therefore expresses flagrant indifference to the property rights of Palestinians and to the rule of law.
Are those violations proportional? The attorney general concluded that there are more proportional legal means to achieve what he identified as the proper purpose of the law in the previous step of his analysis. For instance, Article 5 of The Order on Government Property in the West Bank, issued in 1967, protects the property rights of those who acquired land in good faith from the officer in charge of government property, even if it turns out that the land was not in fact government property at the time of the transaction. This solution, the attorney general explained, is far more proportional than the Regularization Law, because it requires good faith on the part of the settlers and a case-by-case assessment, as opposed to the Regularization Law’s wholesale expropriation even in the absence of good faith (article 3 of the law requires either state consent, defined extremely broadly, or good faith). The government had not resorted to this “fix” until recently, presumably because it arguably still results in the expropriation of private Palestinian property in contravention of international law. The attorney general mentioned other options: blocking claims against illegal settlements on grounds of laches or statutes of limitations, and offering alternative housing in the West Bank to those who are forced to evacuate (similar to what the government did for the Amona evacuees).
Finally, the attorney general concluded that the benefits arising from the law do not outweigh the harm to constitutional rights. He stressed that the law is sweeping and completely one-sided in its preferential treatment of Israeli settlements and that it does not demonstrate any concern for Palestinian rights.
In light of the foregoing, the attorney general called on the court to strike the law down in its entirety. He argued that there is no saving the law through interpretation or partial annulment because it is fundamentally flawed.
The Attorney General’s Brief Marks a Shift in Policy
Despite the lofty rhetoric in support of Palestinian rights and the heavy criticism the attorney general levied against the Regularization Law, his brief represents a shift in the attorney general office’s position on illegal settlements. Until recently the government has declined to attempt to “legalize” illegal settlements built on private Palestinian land. (As I noted in previous posts on the subject, the term ‘legalize’ is misleading, because the Regularization Law would have no bearing on the legality of settlements under international law.) The attorney general’s willingness to entertain legal solutions that would facilitate such “legalization” under certain conditions and on a case-by-case basis is highly significant. This emerging approach could apply to up to a third of the illegal construction the Regularization Law covers. The Regularization Law may not survive judicial review, but the massive political pressure it has placed on the Israeli legal establishment is already changing its approach to illegal settlements in profound ways.