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Israel: Supreme Court Voids Law Legalizing Settlements Built on Unauthorized and Privately Owned Land in West Bank

(July 14, 2020) On June 9, 2020, the Supreme Court of Israel, sitting as a High Court of Justice, ruled 8–1 to accept a petition against the constitutionality of the Law on the Regulation of Settlement in Judea and Samaria, 5777-2017 (Feb. 13, 2017).

The majority opinion was rendered by Court President Justice Esther Hayut, with seven justices concurring and Justice Noam Sohlberg dissenting. (HCJ 1308/17 Seluad v. the Knesset (June 9, 2020).)

Background

The Israel Defense Forces (IDF) captured the West Bank (Judea and Samaria) from Jordanian control during the 1967 Six-Day War. Since then extensive Israeli settlement has taken place in the area, with some settlements “unlawfully built on land that had not been intended for that [use], and in some cases on private land owned by Palestinians.” (Hayut opinion, para. 1.) The Law on the Regulation and Settlement in Judea and Samaria was adopted by the Knesset (Israel’s parliament) on February 6, 2017, to provide rights of use and possession of land for settlements built “in good faith or with the ‘consent of the state’.” (Hayut opinion, para. 1.)

The petitioners alleged that the Knesset was not authorized to adopt the law because it contained “arrangements” that were unconstitutional and inconsistent with international law. (Para. 22.)

Decision

The Law Applying to the West Bank

Hayut determined that the law that applied in the West Bank consisted of layers of legal sources, including the rules of public international law, and especially the laws of belligerent occupation; the local law that existed in the area on the eve of the IDF’s entry into the area; security regulations imposed by the military commander; and basic principles of Israeli administrative law that require public servants to apply “substantive and procedural decency” and comply with rules of proportionality in exercising their duties.” (Para. 5.) Hayut reiterated the principle that had been previously recognized by the Supreme Court that the activities of the military commander as an arm of the Israeli executive branch were subject to judicial review. (Para. 6.)

Territorial Application

Concluding that that the law did not meet the constitutional standards of Israeli law, Hayut determined that it was unnecessary to decide whether the Knesset had the authority to enact a law that applied outside of the territory of the State of Israel, or whether Basic Law: Human Dignity and Liberty applied to the Palestinian population in the West Bank. Hayut noted that the parties had generally agreed for the petitions to be reviewed under the assumption that the law was subject to the constitutional principles recognized under Basic Law: Human Dignity and Liberty. (Hayut opinion, paras. 31–32.)

Constitutional Requirements

Hayut ruled that section 3 of the law, which enables recognition of rights of use and possession of land for settlements built “in good faith or with the ‘consent of the state’” violated the property rights of Palestinian residents in the West Bank, as well as their rights to dignity and equality. The violation was based on the provision of clear priority given to Israeli residents over Palestinian residents, both in the enforcement of procedures and administrative orders regarding settlement construction, and in the allocation of land and retroactive legitimation of the illegal construction there. The priority allotted under the law to the Israeli residents over the Palestinians, Hayut held, was “without any individual examination and without giving sufficient weight to the special status of the Palestinian inhabitants of the area as ‘protected residents’” (para. 110), a status previously recognized by the Israeli Supreme Court with regard to the latter inhabitants (para. 33).

Violation of rights under Basic Law: Human Dignity and Liberty may be upheld if based on “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” (Basic Law § 8 (the “limitation clause”).) Hayut determined that the law’s express objective of “regulating settlement in Judea and Samaria and enabling its grounding and development” (Law on Regulation and Settlement § 1) constituted “a retroactive legalization of unlawful construction on ‘non-governmental land’” (Hayut opinion, para. 61). Eminent domain may in principle be justified if it is based on public need. According to Hayut, however,

[e]ven the most expansive interpretation of the term “public need” does not allow a de facto expropriation of real estate intended to benefit a particular and known population group – Israeli settlers in the area – by way of the government forcibly taking from another population group – the Palestinian residents – without the expectation that this group might also enjoy the consequences of such taking in the future. This is especially true given the fact that the taking is from the areas’ Palestinians, who are, as mentioned, “protected residents.” (Para. 79.)

The other objective of the law, according to the respondents, was to avoid causing distress to settlers that may result from the demolition and evacuation of residential buildings and settlements built by individuals in the area in good faith or with the encouragement of Israeli authorities. Even if this objective is considered a proper purpose, Hayut determined,

[t]he desire to find a simple and comprehensive solution to the problem of the construction of Israeli settlements in the area after various authorities have contributed for many years to the creation of this reality is understandable, and preventing the evacuation and demolition of homes built in good faith and with the approval of the competent authorities is a worthy and important purpose, but these cannot justify such a significant violation of the right to property and the right to dignity and equality of the Palestinian population. (Para. 108.)

Verdict

The court held that the Law on the Regulation and Settlement in Judea and Samaria was unconstitutional because it did not comply with the requirement of proportionality under Basic Law: Human Dignity and Liberty. The court awarded the petitioners court and attorneys’ fees. (Para. 110.)