Judicial revolution endangers settlement enterprise

The voices in the world calling on Israel to halt the proposed judicial reform are not asking Israel to refrain from rectifying or adjusting the current balance of power

One of the declared motives of those spearheading the judicial revolution is the leftist Supreme Court’s policy toward Israeli control over the West Bank (Judea and Samaria) and the Jewish settlements there. In this context, too, the proposed legal overhaul could backfire and cause serious harm to the settlement enterprise and to IDF counterterrorism efforts, while also exposing settlers and IDF soldiers to greater legal jeopardy.

I write about these possibilities, which are unpleasant to contemplate, not necessarily to express my personal opinion but as an expert in international law conveying the legal reality as it is seen by the vast majority of those engaged with international law in Israel and around the world.

Over the years, the Supreme Court has issued a long series of rulings concerning Israeli control of Judea and Samaria, the settlement enterprise and efforts by the IDF and the Israeli security forces to combat terrorism against the settlers and Israel from within the West Bank territories. Some of these rulings have outraged many on the Israeli Right.

These include High Court decisions that led to the evacuation of homes and communities, as in Netiv HaAvot, Amona and others; the invalidation of a law intended to protect against such evacuations (the Regulation Law); rulings that changed the route of the separation barrier; rulings that limited the use of counterterrorism tools such as home demolitions (in several cases), the “neighbor procedure,” and the like.

These and other rulings have caused many to regard the High Court as an enemy of the settlement enterprise. Trust in the Court among those who define themselves as right-wing has reached an all-time low of 26% (Israeli Democracy Index 2022). But this is just a partial picture.

From the perspective of all countries of the world, international institutions, and those involved in international law, Israel’s presence in Judea and Samaria is defined as an occupation. Therefore, the laws of occupation enshrined in the Geneva Convention of 1949, to which Israel is a signatory, and in a number of other protocols and treaties that govern various aspects of what is permitted and what is prohibited in such situations.

The Supreme Court. Photo: Israeltourism

Some of the prohibitions included in these treaties became criminal offenses in international law under the 1998 Rome Statute that established the International Criminal Court (ICC) – a treaty to which Israel is not a party but the Palestinians are. Among other prohibitions delineated, some of which have become criminal offenses, are the crime of settling in occupied territories, as well as various actions involving the use of military force that may be considered war crimes.

As a law-abiding Western country, Israel considers itself fully committed to international law. This is the legal framework that binds the state in its actions and that binds the High Court in its rulings. In this light and as a kind of mirror image of the criticism leveled by the right, the Court is also the target of sharp criticism from the Left in Israel and abroad. Critics of Jewish settlement activity in Judea and Samaria view the High Court as a full partner in Israeli governmental efforts over the years to reinforce Israeli control over those territories and to promote settlement activity there.

It is true, say the critics, that here and there the Court intervenes to rescue subjugated Palestinians from their oppressors – the state or the settlers or the IDF in its security activities. But these are the exceptions. Usually and as reflected in the number of Palestinian petitions that are accepted versus those that are rejected, the Court sides with the settlers and with the state.

Furthermore, the Court’s critics on the left charge, in the big picture, the Court is a central instrument in legitimizing the occupation. Instead of clearly stating that this is a war crime or at least a violation of international law, the High Court intervenes in specific cases but refrains from criticizing the occupation as a whole.

The Court’s critics on the left are correct. Over the years, the High Court has indeed made significant legal exertions and employed considerable creativity to criticize specific actions it regarded as illegitimate but it has not invalidated all settlement activity in Judea and Samaria.

Press conference with council heads from Judea, Samaria and The Jordan Valley. Photo by TPS

Due to the exceedingly high international standing of the Court and of some of its most noted justices, first and foremost former Chief Justice Aharon Barak, Israeli critics have toned down their overall criticism of the settlement enterprise and of Israeli control over the territories, maintaining that despite their illegality and the violation of Palestinian rights that they embody, they are at least in some degree protected by the Israeli legal system.

The Status of the High Court and of Israel’s justice system has also proven helpful in the sphere of international criminal law. There, one of the main arguments used by Israel when ICC complaints are filed against its military commanders and political leaders is that of “complementarity,” i.e., the fact that the Israeli legal system is sufficiently reliable and serious to investigate IDF and state actions without the need for international intervention.

If the judicial reform is enacted as currently proposed, there is no doubt that the confidence Western nations and the international institutions place in Israel’s legal system will diminish. If the politicians appoint “their people,” i.e., distinctly right-wing and conservative judges to the High Court or if they gain the ability to override its rulings, they may be able to protect some illegal settlement outposts but the risk to the entire settlement enterprise will increase immeasurably. IDF soldiers and commanders will also face the risk of being in the dock before international tribunals.

At the bottom of this perilous slope, international distrust of the Israeli justice system and the loss of a sense of Israel’s alignment with democratic values could deter the United States from exercising its UN Security Council veto power as it had done over the years to protect Israel from possible sanctions.

The voices in the world calling on Israel to halt the proposed judicial reform are not asking Israel to refrain from rectifying or adjusting the current balance of power. They are, in the main, calling upon Israel to suspend the dangerous government-led race to drastically alter the country’s constitutional framework and to reach a broad consensus that will reflect, in a more balanced fashion, Israel’s values as a Jewish and liberal-democratic state. If these appeals go unheeded and the reform is enacted as is, this could potentially endanger the prosperity or even the existence of Jewish settlements in Judea and Samaria.

First published by The Jerusalem Post.