The Regulation Law, if passed by Israel's government will effectively nullify all previous rulings on the issue, substantially weakening Israel's Supreme Court; the government's decision would be in blatant contradiction of international law as well as Israel's commitments; will provide a boost for BDS activists around the world and confirm international community's belief that Israel is annexing the territories.
Following the Ministerial Committee for Legislation's unanimous approval of the Regulation Law that seeks to regulate the status of construction on lands belonging to Palestinians, and Attorney General Avichai Mandelblit's harsh criticism of the proposal, Israel Democracy Institute scholars submitted an opinion to Prime Minister Benjamin Netanyahu and to the leaders of the coalition parties.
In the opinion, IDI details the reasons that the Regulation Law is unacceptable:
First, the bill casts a dark shadow on the legitimacy of the entire settlement enterprise in Judea and Samaria, and sends a chilling message to the international community: Israel flouts international law which may result in a strong backlash from the international community.
Second, the current wording of the proposal severely damages the standing Israel's courts. As far as we can surmise, the Regulation Law is unprecedented in that it retroactively nullifies precedent and specifics decisions made by the courts, explicitly related to property disputes.
It is worth noting that the Regulation Law doesn’t simply 'circumvent the Supreme Court,' an accepted practice by which the Knesset expresses a legal opinion outlining why and how Israel's high court must modify its interpretation of a specific piece of legislation. Indeed, the Regulation Law goes much further, transforming the Knesset into an all-powerful appellate court. As such, the bill eviscerates the separation of powers that vests the legislative, executive, and judicial powers of government in separate bodies. As a result, the legislation touches upon a cornerstone of Israel's democratic regime.
Third, the bill constitutes a disproportionate assault on the property rights of Palestinians residing in the territories.
Yohanan Plesner, President of the Israel Democracy Institute, said: "The proposal is liable to undermine the legal foundation of the entire settlement enterprise." Plesner added that "the passage of this law, which flagrantly discriminates between Israelis and Palestinians, will serve as a propaganda tool for BDS activists around the world, who are engaged in the vilification of Israel and misrepresenting the country's policies as unequal, illegal and in violation of internationally accepted norms."
Professor Amichai Cohen, head of IDI's Amnon Lipkin-Shahak Program on National Security and Democracy, and an expert on international law, composed the Institute's opinion. He states that "the timing of this bill is especially unfortunate. At the beginning of the year, 'Palestine' was allowed to join the International Criminal Court in the Hague. Going forward, ICC prosecutors will have jurisdiction to launch investigations related to Israel's activities in Judea and Samaria. There's no need to elaborate on the damage that Israel's image, as well as its relationships with other countries, will sustain if the ICC decides to open a criminal investigation and perhaps even prosecute Israelis involved in the settlement enterprise. The Regulation Law's explicit support for settlements may be perceived as an intentional provocation of the international community and the International Criminal Court. As such, passage of the bill at this particular time would constitute a particularly irresponsible act."
In the IDI opinion, Cohen states that resolving issues of property ownership must be conducted in a serious process that is notsubject to political pressures or unrealistic timetables, which cannot lead to just results.
Another problematic aspect of the bill is that it explicitly discriminates between the interests of the Israeli settlers, most of them Jews, and Palestinian residents of the territories.
Furthermore, the proposed Regulation Law states that any construction, even if constructed illegally, on land that can be declared to be state land, will be approved immediately provided it has been built for Israeli settlers. Its is clear that a building illegally built by a Palestinian on the exact same plot of land, which happens to be right next to an Israeli settlement, will be demolished immediately. Thus, paradoxically, the law, which seeks to 'protect' structures built without prior approval, is likely to erode the legitimacy of the entire settlement enterprise in Judea and Samaria.
In summary, Professor Cohen states that "Internationally, Israel's position, which has relied heavily on the Supreme Court's judicial oversight as a source of legitimacy, will be perceived as a deception, if not a complete fraud. Domestically, the Regulation Law will undermine the rule of law in Israel, a development that could have dangerous consequences for the country's courts and the status of their verdicts."