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Israel Passes a Law It Knows Is Unconstitutional

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A law passed Monday by Israel’s Knesset potentially puts the country in violation of international law by retroactively legalizing 4,000 homes built by Jewish settlers on private Palestinian land. But remarkably, the possibility of war-crimes charges isn’t the most worrisome thing about the law. What’s more upsetting is that the Knesset passed a law that the country’s own attorney general had already determined was unconstitutional and in violation of 40 years of Israeli judicial rulings. That the law passed -- with the support of Prime Minister Benjamin Netanyahu’s Likud government -- raises serious concerns about Israel’s direction as a rule of law society.

The law, passed by a vote of 60-52, relates to settlements previously considered “illegal,” which has a specific meaning here. International law, as interpreted by most experts outside Israel (and many inside) prohibits all permanent settlements on occupied territory. In this case, the homes in question were illegal under Israeli law: They were built without obtaining the necessary permissions from the military authorities who govern the administrative territories of Judea and Samaria.

QuickTake Israeli Settlements

Under the new law, the Israeli military commander can seize private Palestinian land on which an Israeli settlement is already built. Technically, the law says this can only be done when Israel has consented to the construction. But that’s misleading because the law also allows consent to be granted after the fact or inferred from the provision of services like electricity to the settlement. In practice, the great majority of illegal settlements could now be legalized.

Past settlements considered legal under Israeli law were on land that at least in principle wasn’t being expropriated from private Palestinians. Under the law of occupation, as interpreted by the Israeli military authorities and the courts, land was taken by the government only if it was public land or deemed abandoned by its owners.

To be sure, those appropriations were not uncontroversial, especially when it came to what counted as abandonment. International organizations and other countries, including the U.S., didn’t recognize the validity of the seizures.

Nevertheless, it was crucially important to Israel’s self-conception as a rule of law state that the building of settlements was validated by Israel’s legal institutions. Critics might deride the internal process as biased or even as a masquerade. But for Israelis themselves, the legality of the construction was what differentiated the country from a colonizer or an actor who flouted legal norms.

The law passed Monday changes the game. Attorney General Avichai Mandelblit stated publicly that the law violated Israel’s constitutional law. And the country’s Supreme Court could well strike it down. But the Knesset passed it anyway, in full knowledge of its contravention of Israeli legal norms.

What makes the law problematic has to do with its explicit assertion of legal authority over occupied territory. The basic theory of occupation law is that the law of the previous sovereign remains in place. The occupier governs as a kind of trustee, applying existing law until the territory is returned to its original possessor.

Under Jordanian law, which Israel has applied in the West Bank, the state of Israel can’t permanently take private land. For the Knesset to approve the expropriation is to assert its laws over the laws of Jordan.

The politics of the bill have everything to do with that assertion of legal control. Many supporters would like Israel to officially annex some or all of the West Bank. That would by definition make Israeli law into the law of the West Bank. For those supporters, the new law is a promising first step to annexation -- an acknowledgment by the Knesset that it can make laws to govern Judea and Samaria.

Needless to say, international reaction is sure to be swift and sharp. The European Union had previously condemned the bill. And the law will certainly be used as evidence by those who are advocating for the International Criminal Court to bring a case against Israel for the war crime of unlawfully settling civilians in occupied territory.

Netanyahu had told Knesset that he wanted to discuss the pending bill with Donald Trump on his visit to Washington in mid-February so as not to “surprise” the U.S. president. But the Knesset passed the bill anyway, with some observers suggesting that Netanyahu was already weakened by corruption investigations surrounding him.

Those who passed the law don’t care about the international reaction, and it’s their prerogative to follow their own political judgment and take the consequences.

But the consequences for Israel’s democratic status are another matter. There is no credible argument that the law passes muster under Israel’s constitutional system as interpreted by its own courts. If the government tries to implement it anyway, and the stage will be set for a constitutional crisis.

That’s bad for a country that aspires to follow the rule of law. The legislature shouldn’t be passing laws that it knows are unlawful. In the long run, the consequences may be much more significant for Israelis’ self-conception than even for the Palestinians whose land was taken.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net