by Hagai El-Ad
Esther Hayut, the Chief Justice of Israel’s Supreme Court, paints an idyllic picture in the opening of her recent ruling on the Law for the Regularisation of Settlement in Judea and Samaria [the occupied West Bank]. Her description of the last 53 years could almost make one forget that it is a history of organised dispossession on a grand scale:
In June 1967, during the Six-Day War, IDF forces entered the area of Judea and Samaria (hereinafter: the area). In the decades since, the area has been extensively settled by Israelis…Over the years, the Israeli authorities have been involved, to varying degrees, in establishing Israeli settlements in the area…Some of the settlement in the area – the subject of the petitions before us – was established unlawfully on land not intended for that purpose.
The last sentence should earn the Chief Justice of the Supreme Court the Booker Prize for Fiction. It takes real talent to tell so many lies in so few words. It is not ‘settlement’, it is a war crime. It is not ‘the area’, but occupied territory. And it’s not ‘some’ of it, it is all of it.
The ruling epitomises the Supreme Court’s position that finds no fault with Israel taking over almost every inch of Palestinian land in the West Bank and allocating it to settlements. This landgrab has been achieved chiefly through the sleight of hand known as ‘state land’ – land declared as belonging to the occupation authorities and then handed over almost exclusively to settlers, relying on absurd procedures that the government, attorney general and Supreme Court find entirely acceptable. How exclusionary is the allocation? Hayut cites the figures: ‘Since 1967, only some 1,625 dunams of state land [in the West Bank] have been allocated to the Palestinian population. By comparison, from the 1970s to the mid-2000s, the Commissioner [of Government Property] allocated the Settlement Division some 450,000 dunams for settlement by Israelis’. These numbers mean one simple thing: their land, privately owned or not, is all ours. Yet even a ratio of 1:277 in favour of Jews is not enough to satisfy our greed. That is how the state came up with ‘the possibility of regularising illegal Israeli construction in the area, including structures erected on privately-owned Palestinian land, with the involvement of the Israeli authorities’ – aka the Law for the Regularisation of Settlement in Judea and Samaria.
How does Supreme Court Chief Justice Hayut set about deliberating the constitutionality of a law designed and adopted by the Knesset to apply ex-territorially? Does she find that the parliament cannot pass such laws? Of course not. Justice Hayut starts out by explaining that there is no need to resolve ‘the question of the Knesset’s authority to pass a law that directly applies to the area’. She then states that anyway, this is a routine matter, as ‘this is not the first time the Knesset has passed legislation with direct application in the area’ aimed at ‘unifying the law applying to Israelis in the area and in Israeli territory and enabling the state to enforce its rule and laws on its citizens who reside in the area.’
Chief Justice Hayut does not just avoid considering whether the Knesset has the power to enact such laws, she also sidesteps the issue of jurisdiction to constitutionally review them (‘there is no need to make a ruling…on the question of the applicability of Basic Law: Human Dignity and Liberty to the Palestinian population in the area’), and then proceeds to apply that very jurisdiction. After all, courtesy of the Supreme Court, Israeli legislation in ‘the area’ comes as part and parcel of a wealth of constitutional values. This is a stunningly condescending argument: not only do we legislate over the heads of the subjects, but we debate the constitutionality of these laws in some transcendent realm. That’s how enlightened we are!
There was a further twist. Basic Law: Human Dignity and Liberty includes a ‘limitations clause’, which is how the Israeli court evaluates a law that violates constitutional rights, in order to determine if the violation is constitutional: namely, whether the law befits ‘the values of the State of Israel as a Jewish and democratic state’. Hayut neatly circumvents this absurdity (on the grounds that ‘the parties did not provide extensive arguments concerning the first two conditions of the limitations clause’), but it remains lying there, in a manner so glaringly obvious one cannot take your eyes off it. The Court’s ruling essentially finds that it is acceptable – nay, necessary – to examine Israeli legislation regarding the Occupied Territories through the lens of a ‘Jewish and democratic state’. That’s right, a democratic state in the very place where millions have no political rights nor a vote. And what else do we bestow upon these millions of Palestinian subjects? The Jewish state.
Justice Hayut ultimately repeals the law, not because substantively a law like this cannot be made (the Knesset has done it before and will do it again) or because its purpose is improper (she finds that both sides presented valid arguments). Rather, the Chief Justice of the Supreme Court disqualifies the law because it is disproportionate. And why is that? For one thing, a Justice Department team has already come up with a plethora of administrative possibilities (from the ‘market regulation’ rule to the statute of limitations under Article 78 of the 1858 Ottoman Land Code), for effecting the original dispossession (‘regularising the construction at the heart of the Regularisation Law’) even without the law. The attorney general, who supposedly declined to defend the original law, was the one who served up these goods to the court, and the Chief Justice lapped them up:
[The law fails the test of proportionality in the narrow sense]…particularly given the availability of alternative means that may enable at least partial fulfilment of the aforesaid purpose and the public interest it serves. Without examining the nature of every solution presented by the attorney general or other possible solutions, and without making conclusive findings on the applicability of these arrangements and the manner in which they are implemented, it can be said that the existing tools within the law of the area may, to a significant extent, provide a solution to the proper purpose at the heart of the Regularisation Law, while causing lesser injury to the right to property and the right to equality.
In other words: landgrab serves ‘a proper purpose’ but the state should avoid doing it too openly or sweepingly and find a more incremental, less blatant way.
Justice Hayut unabashedly waxes poetic over the right of the Palestinian subjects to equality. Pausing over the matter, she finds, for example, that ‘regarding the policy of distinction between illegal construction in Palestinian communities in the area and illegal construction in Israeli communities in the area, I do not believe there is a relevant difference between the two populations.’ In reality, automatically backed by the Supreme Court, Israel openly pursues an aggressive ‘policy of distinction’ designed to promote demolition for Palestinians and settlement for Jews. The absurdity of Justice Hayut’s claim that there is no ‘relevant difference’ is matched only by the glaring absence of the term occupation from her ruling, other than a mention of ‘the Turkish occupation of Northern Cyprus in 1974’.
Only one member of the panel spoke the truth, dissenting Justice Noam Sohlberg, who is also a settler. Unlike the others, he makes no pretence to avoid ruling on whether the Knesset has power to pass laws that apply in the Occupied Territories. Instead, he explicitly states: ‘If the Knesset wishes to apply its laws in the area, so be it.’
Sohlberg’s truth runs deep, as it touches directly on the normative framework which forms the basis for the entire judicial review – and for everything that happens on the ground. It is not ‘the rule of law’ or other such lies, but a perpetual state of emergency that enables the Israeli government to do as it pleases with its subjects. Justice Sohlberg may not quote Giorgio Agamben, but he does deserve credit for steering clear of the smoke and mirrors of the rest of the panel, led by Hayut. Instead, he chooses to open his opinion with the observation that ‘the Regularisation Law is an exceptional law’. The law is exceptional, the situation is exceptional, and this ‘exceptionality’ is the normative framework for discussing the regime of Jewish supremacy over Palestinians.
You can go through the motions like Hayut or simply not give a shit like Sohlberg, either way, the whole thing stinks to high heaven.
This piece was originally published in Hebrew by Local Call on 11 June 2020.