—Tamar Hostovsky-Brandes, Ono Academic College Faculty of Law
On June 9, 2020, the Israeli Supreme Court delivered its decision in the case of Silwad Municipality v. The Knesset, regarding the Settlement Regularization Law (the “Law”), enacted by the Knesset in 2017. The Court invalidated the Law by an 8 to 1 majority, determining that it violated the constitutional rights to property, dignity and equality, protected by Basic Law: Human Dignity and Liberty, and did not meet the requirements of the Basic Law’s limitation clause.
The Enactment and Content of the Law
The Law was enacted in 2017, following a political crisis that emerged after the Supreme Court ordered the evacuation of Amona, a Jewish settlement built on private Palestinian land. The ruling in Amona was consistent with the Court’s previous case law, in which it declared that while the general question of the legality of the settlements was non-justiciable, establishment of settlements that involved violation of private property rights is subject to judicial review.
The Law establishes a mechanism for expropriation of private Palestinian land on which settlements were built, in exchange for compensation. It determines that the state will take hold of such land and allocate the rights to hold and use it to the Israeli settlers that reside on it. The mechanism is applied to settlements established in “good faith,” that is, without the settlers knowing that the land was privately owned, or with government assistance, defined broadly.
With the exception of the Golan Heights and East Jerusalem, which Israeli annexed, Israel does not officially apply its own law to the territories occupied in 1967. Thus, Israel generally operates in the Occupied Territories under an international law of occupation framework that is centered around Article 43 of the Hague Regulations. Under this article, the law that existed in the territory at the time of occupation continues to apply during occupation. In addition to the preexisting law, the Military Commander is authorized to issue orders for the purposes permitted by the law of occupation. The legal framework applied by Israel in the Occupied Territories is thus comprised of main two layers: Jordanian law, which is the basic layer, and military orders, which function as legislation.
Despite the fact that Israeli law does not officially apply in the Occupied Territories, some parts and principles of it are applied in practice. First, the content of the orders issued by the Military Commander is often based on Israeli law. In addition, the Court has long determined that Israeli soldiers operating in the Occupied Territories are bound by that basic principles of Israeli administrative law, and has applied fragments of Israeli constitutional law, albeit in a non-consistent manner.
Israel thus usually operates in the Territories through military orders. The Law deviates from this mode of operation, as it is a direct act of Knesset legislation that purports to apply, extraterritorially, in the Occupied Territories. The petitions against it were, accordingly, exceptional: most of the petitions regarding the Occupied Territories that are filed in the Court do not challenge legislation. While military orders are considered, under the law of occupation, as legislation in occupied territories, from the perspective of an Israeli court performing judicial review, their status is that of an act of the executive branch.
The Petitions and the Court’s Ruling
The petitioners argued that the Law was invalid on several grounds: first, they argued that the Law was void since the Knesset has no authority to legislate in the Occupied Territories. In addition, they argued that the Law violated the law of occupation’s prohibition on the expropriation of private property. Finally, they argued that the Law violated the constitutional rights to property, livelihood, dignity and equality, encompassed in Basic Law: Human Dignity and Liberty.
The state, represented by a private lawyer after the Attorney General refused to defend the Law in Court, argued that there was no impediment preventing the Knesset from enacting extraterritorial legislation, and that under the Israeli rules regarding the domestic status of international law, Knesset legislation superseded international law. They further argued that in any case, the Law did not violate international law. In addition, they argued that the Law was compatible with Basic Law: Human Dignity and Liberty (the “Basic Law”), since to the extent that it violated constitutional rights, such violations fulfilled the conditions of Article 8, which determined that “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required”.
The Court refrained from ruling on the first ground, stating that there was no need to decide on the issue of the authority of the Knesset. Instead, it focused on the third ground, examining the constitutionality of the Law. The Court determined that the Law violates the constitutional guarantees of Israeli law. Chief Justice Hayut, who wrote the minority opinion, concludes that the Law violates both the right to property and the rights to dignity and equality protected by Basic Law: Human Dignity and Liberty.
Hayut then moves to examine whether the violations fulfill the requirements of article 8 of the Basic Law, focusing on the questions of whether the Law was enacted for a “proper purpose”, and, if a proper purpose could be located, whether it was proportional. She examines two possible purposes: the first is the “systemic” purpose, to retroactively validate illegal building in the Occupied Territories through the taking of private property. The second is the “humane” purpose, which is to alleviate the harm that would be caused to settlers who have established their homes in good faith, relying on representations made by the state, should they be required to evacuate. While the first was not a legitimate purpose, Hayut determined that the second was, arguably, proper, and thus justified moving to the last phase of constitutional review, the question of proportionality. With respect to this question, she concluded that the proportionality test was not met, and that the Law was thus void.
The dissenting opinion, written by justice Sohlberg, differs from the majority with respect to the “proper purpose” of the law. While Sohlberg agrees that the Law violates the rights to property and equality, he determines that the purpose of “establishing and regularizing the settlement in Judea and Samaria” is a proper purpose, and that the Law withstands the limitations clause. Notably, Justice Hendel, in a concurring opinion, also perceives this purpose to be legitimate, although he reaches the opposite conclusion with regard to proportionality.
The Relationship between International Law and Constitutional Law in the Case of Silwad
The decision in Silwad is, thus, a constitutional law decision. Does this imply that Israel’s Basic Laws apply in the Occupied Territories? The answer is not straightforward. The Court stated that this question need not be determined, since the parties agree that the Basic Law applies in this case, and in any case, the Knesset itself is bound by the Basic Laws when legislating. It thus avoided ruling on the question of the territorial application of constitutional framework in the Occupied Territories.
Instead, the Court proposed what may be characterized as an even more overreaching approach, suggesting that all Knesset legislation is limited by the Basic Law and subject to constitutional review, whether it applies within Israel or extraterritorially. In addition, the justification for this suggestion, which is that the Knesset, as a state organ, is inherently bound by the Basic Laws, can, arguably, be extended to all other state organs and institutions.
While the general normative framework in Silwad was a constitutional law framework, international law did play a role in the interpretation of constitutional norms. Hayut states, in the decision, that “there are, in this case, normative sources in international law, which must be addressed in the course of constitutional review”, and which affect the rights of Palestinian residents of the Occupied Territories to property and equality. She explains that the status of Palestinian residents of the Occupied Territories as “protected persons” under international law, and the protections accorded to them under the law of occupation, should be taken into consideration when evaluating whether the requirements of the limitation clause are met. These protections lead, for example, to the conclusion that the “systemic” purpose of taking of private land in order to establish the settlements cannot, in these circumstances, be considered a “proper purpose”.
Aftermath – the Case of Mitzpe Kramim – Back to a Law of Occupation Framework
The Silwad decision and the prospect of evacuation of settlements caused a political stir in Israel. Following the decision, the Court turned to examine the legality of an alternative route presented by the state for preventing the evacuation of some of the settlements built on private Palestinian land, which were to be evacuated after the invalidation of the Law.
On August 27, 2020, the Court delivered its decision in a petition regrading the settlement of Mitzpe Kramim, a settlement built on privately-owned Palestinian land, which was set for evacuation following the invalidation of the Law. The argument presented by the respondents in this case, which included both the state and the settlers, was that the settlement need not be evacuated, under the legal principle of Market Ouvert. This principle, they argued, is stipulated in a military order that was issued by the military commander in 1967 and applied to the case.
Contrary to the Silawd case, which focused on the constitutionality of the Law, the adjudication of the dispute in the case of Mitzpe Kramim took place under a framework of international law, which determines that military orders enacted in Occupied Territories amount to law. The Court analyzed the military order and determined that that it indeed included a Market Overt clause. According to the Market Overt principle, rights in lands seized in good faith, without awareness of the fact that they are privately owned, can overcome the property rights of the original owners. However, the Court also determined that the conditions of the clause were not met. The Court thus ordered the evacuation of Mitzpe Kramim within a timeframe of three years.
According to Israeli news outlets, PM Netanyahu announced that “all avenues” will be taken to avoid the evacuation. Some news outlets suggested that a law pertaining specifically to Mitzpe Kramim was in the works. Should such a law be enacted, it will likely be contested in Court, and the legal discussion will move, again, to the constitutional plane.
Suggested citation: Tamar Hostovsky-Brandes, Silwad Municipality v. The Knesset: The Invalidation of the Settlement Regularization Law and its Aftermath, Int’l J. Const. L. Blog, Sept. 15, 2020, at: http://www.iconnectblog.com/2020/09/silwad-municipality-v-the-knesset-the-invalidation-of-the-settlement-regularization-law-and-its-aftermath/