Israel’s coalition crisis over the settlement’s regulation bill is not a normal power struggle between overweening politicians. It is not popularity contest between Finance Minister Moshe Kahlon and his Kulanu Party and Education Minister Naftali Bennett and his Bayit Yehudi Party.
It is also not about contenders to the helm challenging
Prime Minister Binyamin Netanyahu’s political primacy.
The settlement regulations bill proposes to extend the
authority of the Military Government in Judea and Samaria to seize privately
owned lands. That authority is now limited to seizure for military purposes.
The bill would allow the Military Government to seize lands for the purpose of
private construction as well.
The political fight over the bill is not merely a fight
over the community of Amona, which will be destroyed by order of the High Court
if the law isn’t passed before December 25.
The fight over the law is a fight about the character of
Israel.
Opponents of the bill argue that the law undermines the
power of the Supreme Court and endangers Israel’s international standing.
Proponents of the bill argue that Israel needs to ensure the primacy of the
Knesset. They further argue that there is no point in bowing to the will of an
international community that is constitutionally incapable of ever standing
with Israel.
In case you were wondering, proponents of the bill have
it right.
The settlement regulation bill is not a radical bill. It
is a liberal reform of a legal regime that harms the civil rights of both
Palestinians and Israelis.
Palestinians today are denied their full property rights.
Shortly after its establishment in 2004, the Palestinian Authority made selling
land to Jews and Christians a capital offense. Dozens of Palestinians have been
murdered over the past two decades in extrajudicial executions by both
Palestinian security forces and by terrorist militias working hand in glove
with Palestinian security forces for the “crime” of selling their land to Jews.
Earlier this year, the Israeli group Ad Kan documented
employees of the European financed far left groups Ta’ayush and B’tselem
conspiring to hand over to Palestinian forces a Palestinian land owner who
expressed interest in selling his lands to Jews. During surreptitiously
recorded exchanges, they acknowledged that PA would likely execute him.
The settlement regulation bill empowers the military
commander to seize privately owned lands and compensate the owners. In other
words, it provides a means for willing Palestinian sellers to sell their
property to willing Jewish purchasers without risking the lives of the owners.
As I noted in a column on the subject of the bill last
week, the legal opinion published by Attorney General Avichai Mandelblit
opposing the settlement regulation bill included four arguments. Prof. Avi Bell
from Bar Ilan University School of Law rebutted all of Mandelblit’s claims in
an article published two weeks ago in Yisrael Hayom.
As Bell showed, Mandelblit’s claim that the proposed law
breaches international law is both irrelevant – since Knesset laws supersede
international law, and at best arguable.
Mandelblit further argued that the Knesset has no right
to pass laws that supersede international laws pertaining to the belligerent
occupation of lands seized in war. But Bell demonstrated that the opposite is
true. For instance, Israel’s Golan Heights law from 1981 cancelled the military
government in the Golan Heights and applied Israeli law to the area.
Mandelblit claimed that eminent domain cannot be used to
seize land for private construction projects. But as Bell showed, there are
dozens of decisions by US courts permitting eminent domain to be used in just
such cases.
Finally, Mandelblit argued that the Knesset doesn’t have
the authority to pass laws that contradict High Court decisions. Here too, Bell
showed that the opposite is the case.
Israel’s constitutional order is based on its Basic Laws.
Basic Law: Knesset, defines the Knesset as the highest legislative authority.
In line with this, the Knesset has passed numerous laws over the years that
have overturned High Court decisions.
On the basis of Mandelblit’s last argument, on Monday,
Kahlon announced that Kulanu would not support the settlement regulations law.
Kahlon insisted that his party would not support any law that undermines the
Court’s authority and since the Court ruled that Amona must be destroyed and
its residents rendered homeless by December 25, Kahlon will take no action to
save the community.
Kahlon insists that he is motivated by a desire to
protect the Court’s prerogatives. But when assessed in the context of actual
laws, it is clear that his position doesn’t primarily defend the Court. Rather
it undermines the Knesset, and through it, Israeli democracy.
If the Knesset doesn’t have the right to pass laws that
run counter to Supreme Court decisions, then the public that elected the
Knesset is effectively disenfranchised. Far from securing Israel’s democracy
and constitutional order, opposition to the settlement regulation bill
undermines both.
Then there is the issue of Israel’s international
standing.
Monday the security cabinet convened to discuss the
settlement regulation bill. According to leaked accounts of the six-hour
meeting, Prime Minister Binyamin Netanyahu warned Bennett that passage of the
bill is liable to cause the International Criminal Court’s (ICC) Prosecutor
Fatou Bensouda to indict Netanyahu as a war criminal. He also warned that
passage of the bill is liable to induce US President Barack Obama to enable an
anti-Israel resolution to be adopted by the UN Security Council.
Netanyahu’s claims are deeply problematic.
Insofar as the ICC is concerned, three points counter
Netanyahu’s argument. First, Bensouda is already conducting an investigation of
Israel. She opened her investigation shortly after she wrongly admitted
“Palestine” as a state member of the ICC.
The ICC will continue to investigate Israel whether or
not the Knesset passes the settlement regulation law. And the merits of the
bill will have no impact on the ICC’s decision to prosecute or close the
investigation.
The second problem with Netanyahu’s claim is that just by
making it – and leaking it to the media — he empowered the ICC.
The ICC is becoming weaker by the day. Angry over the
political nature of its prosecutions, African states are abandoning it. Russia
also has announced it is walking away.
Israel should welcome this development.
The Treaty of Rome which established the ICC made clear
that one of the court’s purposes is to criminalize Israel.
By arguing that the ICC will respond to the passage of
the regulations bill by indicting Israel, Netanyahu is lending credence to the
false claims that there is something unlawful about the bill on the one hand,
and that the ICC’s politically-motivated investigation of Israel is legally
defensible on the other hand. Indeed, by claiming wrongly that passing the bill
will expose Israel to ICC investigation, Netanyahu is effectively inviting the
ICC to persecute him.
The ICC, like its comrades in the lawfare campaigns
worldwide always target those perceived as vulnerable to pressure. This is why
leftists like former justice minister Tzipi Livni are targeted for war crimes
complaints while current Justice Minister Ayelet Shaked are left alone.
The most extraordinary example of this sort of political
targeting came Monday. The same day Netanyahu was making the case for the ICC
and Obama in the cabinet, word came that Palestinian immigrants in Chile have
filed a war crimes claim against three High Court justices. Former Palestinians
from Beit Jala, south of Jerusalem filed war crimes charges against retired
Supreme Court president, Asher Grunis and sitting justices Uzi Fogelman and
Neal Hendel are all being accused of committed war crimes for their decision
last year regarding the route of the security barrier around Jerusalem.
There is no governing institution in Israel more
sensitive to war crimes accusations that the Supreme Court. To avoid just such
charges, justices routinely second military commanders and the government and
deny them the right to use their best professional judgment to defend the
country.
In the decision for which they are accused of war crimes,
the three justices gave qualified approval to the IDF to complete the security
barrier around Jerusalem on lands owned by the petitioners in Beit Jala. In
their ruling, the justices actually sided with the petitioners claim that the
proposed routes harmed their rights and insisted that the IDF prove that it had
no means of defending the capital without building the barrier along the
proposed routes.
And for their efforts, the justices are now being accused
of war crimes.
The same flawed premise at the heart of Netanyahu’s claim
that approving the bill will cause Israel to be prosecuted for war crimes
stands at the heart of his claim that passing the law will increase the
possibility that Obama will allow an anti-Israel resolution to pass in the UN
Security Council.
The problem with this argument is that it ignores the
basic fact that Obama’s desire to stick it to Israel at the UN Security Council
has been a consistent feature of his presidency for eight years. Obama has
wielded this threat against Israel without regard for its actual policies.
He has threatened us when the government froze
Jewish building rights. He has threatened us when the government respected
Jewish building rights. If Obama decides to enable an anti-Israel resolution to
pass through the UN Security Council during his remaining seven weeks in
office, he will do so regardless of whether the Knesset passes or scuppers the
settlement regulations bill.
The only thing likely to prevent Obama from harming
Israel at the Security Council at this point is a clear message to the UN from
the incoming Trump administration.
For instance, if President-elect Donald Trump announces
directly or through an intermediary that Security Council action against Israel
over the next seven weeks will induce the Trump administration to withhold US
funding from the UN, UN officials will likely stuff draft resolutions to this
effect into a drawer.
Netanyahu’s actions do more to harm his future relations
with Trump than advance his current relations with Obama. If Netanyahu blocks
passage of the settlement regulations bill, he is likely to enter the Trump era
as the head of a government on the verge of collapse.
Rather than be in a position to reshape and rebuild
Israel’s alliance with the US after eight years of Obama’s hostility, Netanyahu
may limp to his first meeting with the new president, the head of dysfunctional
government beyond his control, and at the mercy of a legal fraternity and
international judicial lynch mob that he will have just empowered.
**Originally published in The Jerusalem Post.
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