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Harm to Palestinians must be proportional

This posting has these items:
1) ToI: Attorney general okays seizure of private Palestinian land for outpost road, reactions of public to AG’s ruling;
2) JPost: Attorney General’s move on settlements: shifting but no game-changer, paves the way for the regulation (property theft) bill to become enforceable law;
3) Ynet: The AG’s war to protect Israeli democracy, published last February when the AG saw himself as leading the battle against the attempt to change basic principles in the state’s democracy;

Attorney General [AG] Avichai Mandelblit, photo by Mark Israel Salem

Attorney general okays seizure of private Palestinian land for outpost road

Using precedent set in recent High Court decision, Avichai Mandelblit views residents of Horesha as a protected population deserving of public benefits

By Jacob Magid, Times of Israel
November 15, 2017

Attorney General Avichai Mandelblit approved the expropriation of private Palestinian land for the building of an access road to an illegal West Bank outpost, in an unprecedented legal opinion on Wednesday [Nov. 15].

Established without government approval in 1995, the Haresha outpost, in the Binyamin region near the settlement of Talmon, had been ordered to cease construction in 2005 following a High Court of Justice petition by the Peace Now settlement watchdog.

But following a legal decision last month made by now-retired Supreme Court justice Salim Joubran, Justice Minister Ayelet Shaked asked that the state’s opinion on Haresha be updated.

Supreme Court judge described settlers as a protected population that the army is expected to care for

Responding to a petition regarding the legality of establishing a temporary living area for the evacuees of the Amona outpost while they wait for the new Amichai settlement to be built for them, Joubran ruled that abandoned private Palestinian land could be seized for the grounds as long as the original owners are compensated.

Under the military’s jurisdiction, Joubran described settlers as a protected population that the army is expected to care for through the paving of roads, for example. The unique status of the Amona evacuees superseded the legal problems that arise from the seizure of private Palestinian land, Joubran ruled.

Beyond objecting to the broader illegality of the land seizure, the Palestinians have argued that the only reason that the land is considered “abandoned” is that they are prevented from accessing it.

In his Wednesday legal opinion, Mandelblit wrote that given Jabroun’s ruling, “there is no longer a legal impediment in advancing the recommendation regarding the construction of the access road to Haresha through expropriation for the [sake of the] needs of the public.”

Speaking with The Times of Israel, Mandelblit’s adviser Gil Limon said that very specific circumstances allowed for the seizure, suggesting that the implications of Wednesday’s decision might not be as broad as the settlers are hoping.

However, the Peace Now settlement watchdog said that the state is permitting

“the seizure of territories it does not have sovereignty over — those which belong to a Palestinian population that does not have civil rights and the right to vote — all for the exclusive purpose of an Israeli population that has rights.

“There is no other word for this than apartheid. The Netanyahu-Shaked government continues to lead the annexation of the territories, hastening the reality of a single, bi-national state based on a regime of discrimination and oppression” .

Peace Now is expected to petition the High Court against the state’s new policy.

Justice Minister Ayelet Shaked welcomed Mandelblit’s recommendation in a Wednesday statement. “The decision is another step toward the realization of the rights of hundreds of thousands of residents in Judea and Samaria,” she said, referring to the West Bank by its biblical names.

“The removal of judicial barriers and the construction of legal ways to create a normal life for the hundreds of thousands of residents in Judea and Samaria is the direction we should aspire toward,” said Binyamin Regional Council chairman Avi Roeh. He thanked Shaked for her efforts.

The decision to authorize the seizure of land for the access road to the community of 50 families will allow the Haresha residents to move forward with legalizing the entire outpost, thus adding the community to the roughly 130 settlements already recognized by the government.

Benjamin [Binyamin] Region and Jerusalem Approaches, Satellite Bible Atlas Maps. The local authority looks after over 40 settlements.

The ruling also calls into question the necessity of the so-called Regulation Law. The legislation allows the Israeli government to expropriate private Palestinian land where illegal outpost homes have been built ex post facto, provided that the outposts were built in good faith or had government support.

While passed in February, the law has been frozen by the High Court pending a ruling on the petitions that have been filed against it by Palestinian landowners and Israeli rights groups.

Haresha /Harsha/Horesha outpost. Photo by Nir Kafri

Attorney General’s move on settlements: shifting but no game-changer

Will Attorney-General Avichai Mandelblit’s legal opinion permitting the use of private Palestinian land lead to the approval of the Settlements Regulation Law?

By Yonah Jeremy Bob, JPost
November 16, 2017

Unquestionably, Attorney-General Avichai Mandelblit’s legal opinion publicized on Wednesday permitting the use of private Palestinian land to pave a road for the Jewish West Bank outpost of Harsha shifted the ground for legal debate. The question now is whether it was enough of a game-changer to lead the High Court of Justice to approve the Settlements Regulation Law.

Passed in February, the law would potentially allow wide-scale retroactive legalization of Jewish settlers residences built on private Palestinian land, but was frozen by the High Court and most commentators have predicted that it will be ruled unconstitutional.

Did Mandelblit’s opinion change that?

First, it must be understood that this move was not only Mandelblit’s opinion but stemmed from an ignored part of retired Supreme Court Justice Salim Joubran’s decision a few weeks ago with regards to Amona.

Joubran and his panel of three justices ruled that Amona settlers could not build on private Palestinian land – and this was almost all that was reported.

But Joubran’s publicly-ignored reasoning for evicting Amona was just as important.

While he said that Amona settlers could not build on private Palestinian land, he explained that it was because it would be disproportionately unfair to the Palestinians, not because there was a constitutional bar against doing so.

The bottom-line of his reasoning may have laid the groundwork for Mandelblit and others to say that Jews could build on private Palestinian land in other cases, even if there was no security necessity, as long as the situation met proportionality principles.

Salim Joubran, first Arab Supreme Court judge, said settlers could not build on private Palestinian land because it would be disproportionately unfair to the Palestinians, not because there was a constitutional bar against doing so. Photo taken May 2017 by Emil Salman

Those on the Right, like Justice Minister Ayelet Shaked, are applauding Mandelblit’s move, and saying that it could even lead the High Court to endorse the Settlements Regulation Law.

After all, they say, aren’t both situations cases of just finding a proportional way to give private Palestinian land over to Jewish use?

Many on the Left are slamming Mandelblit and saying he has endorsed a criminal reading of international law where Israelis can steal private Palestinian land, even as the rest of the world views this as a violation of international law.

The Jerusalem Post has learned that Mandelblit’s intentions may be somewhere in the middle.

Out of the thousands of units that would potentially be impacted by the Settlements Regulation Law, only 10% of them – or another similarly small number – may fit into the specific formula, as with Harsha, where it can be argued that the inconvenience to the Palestinians is proportional.

However, Mandelblit is still expected to oppose the blanket nature of the Settlements Regulation Law as inherently disproportionate and his opposition, armed with other legal issues with the bill, are still expected to lead the High Court to strike the law.

The kicker then will come afterward. Shaked has hinted that there may be other tools besides this law to achieve her aims of legalizing more settlements.

Even if it is only 10% of the units that would potentially be impacted by the Settlements Regulation Law, Joubran, and now Mandelblit, have shifted the ground to make it all the more possible.

The AG’s war to protect Israeli democracy

 The Regulation Law has created one of the most serious constitutional crises the State of Israel has ever experienced. Attorney General Mandelblit, who strongly opposed the law, sees himself as being at the forefront of the battle against the attempt to change basic principles in the state’s democracy and in the independence of its elected institutions.

By Tova Tzimuki, Ynet Analysis
February 13, 2017

The Right’s joy on Monday night following the Knesset’s approval of the Regulation Law was immediately accompanied by a call made by Knesset Member Moti Yogev and Minister Yariv Levin to storm the next target: Occupying the Supreme Court by appointing conservative judges who support the settlers’ values.

It was no coincidence. The Judicial Selection Committee will convene at the end of the month in a bid to reach understandings on the four candidates who will join the Supreme Court panel. The selection of the four judges, the adoption of a controversial key law—against the attorney general’s stance – and challenging the law at the High Court, announce a flare-up concerning the existing order and the roots of democracy.

Ayelet Shaked, the engine behind all the regulations (here discussing budgets for Israeli settlements) Photo by Hadas Parush/ Flash90

The Regulation Law and the petitions filed against it to the High Court, which will have to discuss its constitutionality, will keep the legal and political system busy in the coming year. If no interim order is issued to freeze the law, the settler and legal systems will find themselves at a frontal collision regarding the interpretation of its implementation. The petitions will turn the focus once again to the Supreme Court’s position in Israeli democracy. “The heat is already being felt in the Supreme Court corridors in Jerusalem,” says a high-ranking legal source.

Since the establishment of the current Netanyahu government, which has raised the banner of “regulating” the illegal settlements at all costs, petitions to bleach or to evacuate the settlements are being discussed every now and then.

Meanwhile, calls are always being made to impact the Supreme Court’s authority by changing the panel of judges, changing the way the selection committee works and reducing the ability to file a legal claim (“standing”).

After the attacks on the legal system throughout the Amona affair, “now comes one of the key petitions, which no longer deals with one land or another but with the father of all laws—the Regulation Law of the settlement enterprise,” says a senior legal source. Two weeks ago, for example, in the middle of the Amona evacuation operation, a High Court ruling by a two-to-one majority slipped beneath the radar. The ruling cancelled a legal construction invented by Attorney General Avichai Mandelblit for the purpose of a temporary and alternative community for the Amona evictees. Justice Minister Ayelet Shaked, the engine behind all the regulations, remained undaunted. The legal echelon, she said, was armed with alternative formulas from the area of administrative law. The “market ouvert” and the “presumption of community property” are examples of the legal pyrotechnics used for legitimizations which only knowledgeable people understand.

Disregard of basic principles

Attorney General Mandelblit immediately detected the seeds of evil. At the very beginning, he already announced his objection to the Regulation Bill and pleaded with members of the Ministerial Committee for Legislation not to take part in it. “They looked him in the eye and failed to adopt his recommendation,” says a source who was present at the meeting.

In order to smooth down the pill, and for fear of bloodshed during the Amona evacuation, he tried to come up with alternative solutions. His critics argue that he is trying too hard. His defenders say he is attempting to lower the flames.

Mandelblit sees himself today, together with the Supreme Court, as being at the forefront of the battle against the attempt to change basic principles in the state’s democracy and in the independence of its elected institutions, including the institution headed by him. And there is also a legal-international system which he will have to answer to. Sources in the State Attorney’s Office say that during meetings on the Regulation Law, Mandelblit said he was working not only to help implement the policy within the boundaries of the law, but also to represent the rule of law in the State of Israel.

Former Supreme Court president Dorit Beinisch said last Monday, on the eve of the Regulation Law’s approval:

“It’s hard to imagine that a state would consider expropriating residents’ private land in a seized territory. Legislation against private property contradicts the principles of Israeli and international law. There has never been any legislation regarding land that is not included in the State of Israel’s jurisdiction. The Knesset and the government are adopting a move that disregards our constitutional basic principles.”

A retired Supreme Court judge adds,

“This time, it’s not just a battle over another law. We are talking about a symbol here—will the Supreme Court remain independent, or will it be defeated by the threat of the majority in the Knesset which enacted a law concerning a substantial change in the 50-year control of the territories. We are talking about the Supreme Court, which has rescued the state from itself in the internal and international arena more than once, with the help of its enlightened rulings, while the storm raged around it, and in return always suffered from de-legitimization.”

According to the former justice,

“The absurdity is even greater. The Supreme Court’s ruling on the law’s constitutionality will largely define the extent of the defence Israel will have in the international legal arena. Mandelblit warned in the cabinet meetings discussion the law’s ramifications, and Prime Minister Netanyahu agreed, that this law brings Israel closer to being charged with war crimes at the International Criminal Court in The Hague.”

In this context, quite a few legal experts were surprised by Mandelblit’s announcement, through Minister Shaked, that he would allow the government to seek private representation at the High Court. It has always been agreed that the attorney general is the law’s exclusive interpreter until it reaches the High Court. Mandelblit himself said so very well at a recent conference in Zichron Yaakov:

“In the Israeli legal system, the authority to determine what is the right interpretation of the law for the government officials, and what are the legal boundaries they are authorized to operate within, is in the hands of one person only, as long as the court has not ruled otherwise—the attorney general in the State of Israel.”

Sources in the Justice Ministry, however, say that although Mandelblit will not defend the law, “it’s important for him to continue his full co-operation with the government in a businesslike manner. After all, the Knesset which adopted the law is the sovereign and it is entitled to representation, as is the government’s stance, despite its being wrong.”

Threatening the selection process

In the pages of history there are impressive refusals to defend illegal or unconstitutional government stances. Yitzhak Zamir was removed from his position as attorney general in 1986 for refusing to defend the pardoning in the Bus 300 affair.

Legendary State Attorney Dorit Beinisch refused to defend late Prime Minister Yitzhak Rabin when he refused to fire ministers Deri and Pinhasi from the government following indictments filed against them. The High Court, by the way, in all petitions of this kind, backed the independence of the attorney general’s discretion and the exclusivity of the AG’s representation.

In any event, it is already clear that an expanded panel of Supreme Court judges which is expected to discuss the case will summon the attorney general, or will at least ask for his written opinion.

And if that were not enough, the Judicial Selection Committee is expected to convene in two weeks for the appointment of four Supreme Court judges—about one-quarter of the panel. Despite the talks being held between Chief Justice Miriam Naor, Justice Minister Shaked and President of the Israel Bar Association Adv. Efi Nave, agreements have yet to be reached, although some of the gaps have been bridged and the list now includes eight candidates.

The selection process is already being threatened. In the past few months, in order to hush her critics in the Right over the High Court’s rulings, Minister Shaked has reiterated her promise that the selection of Supreme Court judges would be dominated by conservative judges—a code name for judges who “won’t intervene in the Knesset and government decisions.” Political sources in the committee are already warned that if no agreements are reached, Shaked will pull her objection to MK Robert Ilatov’s bill to cancel the law requiring a majority of seven out of nine committee members. In such a case, Shaked and her political partners will easily select four conservative judges and change the High Court’s future rulings unrecognizably.

See also :

All legal opinion condemns land-grab bill

Settlement bill allows seizure of Palestinian land

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