The settlements bill and judicial overreach

The destruction of Amona was the price that the Israeli settlement enterprise agreed to pay in order to legalise and regulate the status of all the other settlements and outposts. The deal was a kind of plea bargain for want of another term. As we know, one of the conditions of the deal – the transfer of Amona’s houses to another plot up the road – was rejected by the Supreme Court.

However, the other part of the “plea bargain”, the “Settlement Regulation Bill”, (or the Settlement Bill for short) was pushed through the Knesset and passed its three readings to become law. (My apologies for the horrible leftist terms like “settler homes” and “West Bank”):

Following months of coalition wrangling, damning criticism from internal and international opposition and bleak warnings from legal experts, Israel on Monday legalized all West Bank outposts with sweeping legislation that will prevent future demolitions of settler homes built on private Palestinian land.

In a late-night session, the Knesset passed the final readings of the controversial so-called Regulation Bill, which paves the way for Israel to recognize some 4,000 illegally built settler homes.

New pre-fab homes in Ofra

New pre-fab homes in Ofra

After a day of back-and-forth on whether the vote would take place at all, the bill went before lawmakers at 10.30 p.m., receiving 60 votes in favor to just 52 against. All opposition MKs present voted against the bill — with veteran Likud lawmaker Benny Begin standing out as the only coalition member to oppose the measure. Eight MKs were not present in the plenary for the vote.

The Knesset plenum during the vote on the Settlements Bill

The Knesset plenum during the vote on the Settlements Bill

Speaking for the government in defense of the measure before the vote, Science Minister Ofir Akunis (Likud) said the vote was not just over this specific law, but rather about the right of the Jewish people to live in Israel. “This whole debate is based on one question: Who does this land belong to?” he told the plenary.

As expected the usual nay-sayers issued their condemnations:

Condemned by the Barack Obama administration, the European Union, the United Nations and Israel’s attorney general, the law was hailed by the settler movement as a turning point in the 50-year settlement project. Now, supporters say, the era of evacuating Jewish settlements such as the one carried out against the illegal Amona outpost last week, is over.

The law freezes demolition proceedings against the homes.

For any structures found to have been built in good faith — that is, if the homeowners did not know the house was being built on privately owned land — the state would seize the property from its Palestinian owners in exchange for compensation valued at slightly more than the land’s market value, as determined by an Israeli government committee established for that purpose.

The following explains the connection to the Amona imbroglio:

First put forward by the Jewish Home party, the original proposal was intended to overturn a High Court of Justice verdict forbidding the expropriation of the privately owned Palestinian land on which Amona once stood. The clause that would have circumvented that court ruling, however, was removed from the bill following coalition infighting.

Speaking before the vote, Jewish Home MK Shuli Muallem-Refaeli, one of the MKs who proposed the legislation, said the law was “dedicated to the brave people of Amona who were forced to go through what no Jewish family will have to again.” She used her speech to read out the names of every one of the 42 Amona families evicted last Wednesday.

On Sunday, the pro-settlement Jewish Home party doubled down on its insistence that the bill be brought Monday for its final votes. “Half a million residents of Samaria, Judea and the Jordan Valley deserve normal lives just like residents of Kfar Saba and Tel Aviv. Fifty years late, the Regulation Bill will come up tomorrow and pass in the Knesset in order to give them this normalcy,” said a statement from the Jewish Home party.

Binyamin Netanyahu himself missed the vote, visiting British PM Theresa May at the time.

Speaking to reporters from London, Netanyahu said he had informed the US administration of the vote, but had never intended to delay it.“I never said I want to push it off,” he said from the Foreign Office, where he later met with UK Foreign Minister Boris Johnson. “I act according to the national interests. In my view, you don’t surprise friends. Friends don’t surprise each other. Friends update each other. That’s what I did.”

Binyamin Netanyahu meets British PM Theresa May

Binyamin Netanyahu meets British PM Theresa May

Netanyahu stressed that he did not ask the Americans for permission to pass the legislation, but merely informed them of his intention to pass the bill through a second and third reading.

And how could we manage without some negative commentary from the UN?

The United Nations envoy on Middle East peace warned Monday that the law could have significant legal implications for Israel and would push away the hope of a peace agreement with the Arab world. “All core issues should be resolved between the parties through direct negotiations on the basis of relevant Security Council resolutions and mutual agreements,” said Special Coordinator for the Middle East Peace Process Nickolay Mladenov in a statement.

The Israeli opposition behaved irresponsibly, and counter to their own interests, by refusing to participate in the debate:

After a week of debates on the bill ahead of the final vote, the opposition opted Monday to remove all of its reservations to the bill, saying it would not participate in the “coalition circus.”

Opposition chairman Isaac Herzog in the Knesset

Opposition chairman Isaac Herzog in the Knesset

Speaking before the vote, opposition leader Isaac Herzog slammed the bill and urged coalition MKs to “stop tonight’s vote, which would be a disaster for the state.

“This vote is not a vote for or against the settlers, but a vote for or against Israel’s interests,” Herzog said, warning that the law will cause indictments against IDF soldiers in the International Criminal Court in The Hague.

In a refreshing turn of events the White House refused to comment on the bill, preferring to discuss it directly when Netanyahu visits President Trump next week. Of course Germany and France and others objected to the legislation, but then did anyone expect anything different?

One of the most upsetting reactions was from the Attorney General himself, who fiercely opposed the Settlements bill and has informed the government that he won’t defend it in the Supreme Court.

Regarding the Regulation Bill, Mandelblit is of the opinion that it is not constitutional, even after the amendments to it during its revising in the Knesset. He expressed concern that the law will expedite the preliminary check against Israel in The Hague’s International Court of Justice, saying that it could turn their investigation into Israeli settlements into a lawsuit.

The ToI expands on the implications of the Attorney General’s stance:

In a sign of the depth of his opposition, the attorney general is now weighing taking it a step further by appearing in court to argue against the law, Channel 2 news reported Tuesday.

If Mandelblit were to take such a drastic step, it would be unprecedented. The TV report said past attorney generals have threatened to appear in the court against the state, but none has made good on such a pledge.

Several anti-settlement groups have announced their intention to petition the High Court against the new law.

The question arises, as it always does in Israel, whether the High Court is not overreaching itself as it judges the new legislation:

Earlier on Tuesday, a government minister attacked the legitimacy of Israel’s High Court to decide on the constitutionality of laws, ahead of an expected challenge.

Tourism Minister Yariv Lavin from the ruling Likud party said judges should not have the authority to overturn laws made by democratically elected parliamentarians.

“The situation in which everyone waits until a handful of judges who are self-selected behind closed doors decide whether they like the law or not is not democratic and not correct,” he told Israel Radio, calling for “soul-searching” by the bench.

Yariv Levin is correct in his assertion. The Israeli High Court and Supreme Court’s judicial hyper-activism has been the subject of many furious discussions in the political sphere and in the media.

International Law expert Prof. Eugene Kontorovich sought to put AG Mandelblit’s mind at rest with the following series of tweets:

Prof. Kontorovich expands on this issue in his article in Just Security entitled Israel’s Settlement Regulation Bill and International Law. It is long and detailed but worthwhile reading to gain an understanding of the intricacies of the law, and clarifies how “international law” is applied very unevenly, with an unjust focus on Israel.  (No surprise there).

If in the final event the Supreme Court gets its way and refuses to allow the Knesset to go ahead with the new legislation – even though the legislation went through all the proper bureaucratic and legal hurdles – Jewish Home party chair MK Shul Mualem suggests that Israel should just go ahead and apply sovereignty, alongside a much more controversial but sadly necessary bill to limit the power of the courts:

“If the Supreme Court rejects the law we would have two options: Proceeding to apply Israeli sovereignty over Judea and Samaria starting in Area C, and in parallel to proceed with the court limitation bill. We have now begun to recruit coalition cosponsors of the proposed law.”

The blogger Abu Yehuda comes to a similar conclusion when he says “sovereignty is the only solution”:

The Knesset may well pass the “regularization law” that will allow other communities with claims against them to pay a ransom that will keep them from being erased as well, but do you think the Supreme Court – the same Supreme Court that decided that the whole community had to be razed because about one-half acre out of 125 “belonged” to Arabs, who were given it as stolen property by King Hussein, the same court that at the last minute scuttled the compromise that would have allowed at least some Amona residents to move to a nearby location, because Arabs had claims on that land too – will allow the law to stand?

I have heard many versions of who is at fault here. The leftist Supreme Court, which has endless compassion for Arabs but not for Jews? The Netanyahu government which “didn’t stand up for” the people of Amona? The European-financed NGOs with multi-million shekel budgets, working day and night to impeach, weaken and delegitimize our country? The Knesset which didn’t pass a law with teeth to stop the flow of money to these treasonous organizations?

There is plenty of fault to go around, but it comes down to a lack of Zionist will. It is the result of not exercising the sovereignty over Judea and Samaria that was given to us both by God and international law (real international law, not the phony arguments of the Europeans who want to grant Hitler the victory over the Jews that he failed to win in the 1940s).

It’s our land, it belongs to us, the Jewish people, the original indigenous inhabitants of the land of Israel, and not to the descendents of Arab migrants of the 19th and 20th centuries, who don’t even have their own language, religion or culture (except for the culture of murder and hate that has grown up since they failed to kill or expel us in 1948).

If we don’t recognize this truth, if we keep on internalizing the Arab narrative of upside-down history in which we are colonialists that are occupying their land, in which there was no Jewish Temple in Jerusalem and in which the solution is for us to “go back to Europe,” as the mayor of an Arab village near Amona suggested, then there is no hope for the continued existence of a Jewish state.

That really is the whole problem in a nutshell.

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4 Responses to The settlements bill and judicial overreach

  1. Pingback: The settlements bill and judicial overreach – 24/6 Magazine

  2. Reality says:

    Tzippy Hotoveley also explains very clearly,why it is not theft or illegal.As she explains that by recompensating any landowners 125%or offering them a different parcel of land ,cannot be considered theft,especially as many Palestinians would’ve been delighted to sell their land to Jews ,but its a crime for which they can be killed.I ask what is the difference between this, and land that was expropriated in our town,when a huge highway was built?The owners were”kicked out”but compensated very very nicely and bought gorgeous apartments with their money.My in laws had part of their garden taken by the local council in order to build pavements and a road,and they weren’t compensated!They and all their neighbours had to pay for the pavement apart from losing half their garden.
    This happens the whole world over.Personally I think our past govt.were stupid not to annex the Judea and Samaria.Just like the Golan.

  3. YJ Draiman says:

    The Arab-Palestinian Violence must be stopped at all costs, no holds barred, zero tolerance r4
    Israel and the Jewish people must stand United against evil terror and violence. This is no time to be selfish and score political points on the dead bodies of Jewish souls.
    The situation today with terror attacks on a daily basis is no different than July 2014 when Hamas – a recognized terrorist organization firing thousands of missiles against Israel’s population centers.
    These are very difficult days. The escalating Arab violence and attack after attack carried out by Arab savage knife wielders and inhuman vehicular use and knifing as a weapon of terror are again putting to a test the spiritual strength and resolve of the Israeli people. Our enemies, both foreign and domestic, should know that we will never lose our will to live as a free people in our homeland; NEVER AGAIN is not just words, because we have no other home in the world. Israel is the only Jewish country for over 4000 years. We must defend it no matter what, damn the torpedoes. Jews who are not willing to grasp a sword will not be able to hold onto life, we will not let a Holocaust decimate us. We will not give up and we will not capitulate or cower to terror, threats and intimidation, because this is our mission in life. Weakness is not leadership and endless fruitless concessions do not constitute a vision.
    While we preach and pursue peace and coexistence, the Arabs are pursuing terror, death and violence. They, the Arabs clearly state in no ambiguous terms that they want to kill the Jews and destroy Israel.
    The Israeli government must send a clear and determined message and act with all the force necessary to put the murderous violence to a halt. This is war, and we have no choice but to win at all costs, if we want to live and prosper. “Let us all as a unified nation go up at once, and possess it; for we are well able to overcome it.” We have turned a desert into a flourishing country; we can and will defend our homeland at all costs.
    Jewish celebrating the Liberation of Jerusalem has been the hope and aspirations of the Jewish people for close to 2000 years. The Romans significantly outnumbered, the Maccabee’s succeeded against great odds by combining strategy, devotion to God and a willingness to sacrifice themselves in their unified battle against both assimilation and religious persecution. They returned to rededicate the ransacked and desecrated temple in Jerusalem with renewed faith and hope for the future. Today is no different, The Jewish nation is fighting for its survival, let us follow in the footsteps of our ancestors.
    The increased Arab terrorism and violence in Greater Israel is promoting Arab-Palestinian population transfer out of the land of Israel.
    The Arab attacks on Jews and continued violence explicitly raising the option of population transfer by recommending that Israel “find an outlet for this [Arab-Palestinian] population east of the Jordan River and elsewhere. It is also promoting the venue of relocating the Arab-Palestinians in Israel to the Million homes and over 120,000 sq. km. of land of the Jewish people that was confiscated by the Arabs who terrorized the Jews and expelled them from the Arab countries.
    YJ Draiman

    P.S.
    Mahmmoud Abbas has no right to demand anything, he belongs in jail.
    The Arabs cannot be trusted – Mahmmoud Abbas aka Abu Mazen the financier of the Munich Olympics massacre and mastermind of the Achille Lauro, a multiple Murderer and convicted murderer on the run. (Where-ever the Muslims are in the world there is upheaval, killing and destruction).
    It is time to put Mahmmoud Abbas in jail where he belongs and charge him with crimes against humanity and murder charges for being complicit in terror attacks and the death of many people and inciting terror and violence.

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