Tel Aviv Diary: New Settlement Law Tests Israeli Constitution

Henry Kissinger once said that Israel has no foreign policy, only a domestic political policy.

That fact became clearer than usual these past few days as the Knesset passed the first reading of a bill that (1) was initially opposed by Prime Minister Benjamin Netanyahu, (2) will do diplomatic harm to Israel and (3) will without a doubt be found (the Israeli equivalent of) unconstitutional by Israel's High Court when it gets challenged.

This newly proposed law retroactively legalizes buildings built on private Palestinian lands in the West Bank. It states that as long as residents did not know the land was privately owned and the state, either directly or indirectly (such as by providing electricity), recognized the building, then this law would apply.

This proposed law is so problematic that the Israeli attorney general called on the government and the Knesset not to pass it. The attorney general further stated he would not be able to defend the law before the High Court.

Related: Why the Ignorant Assault Upon Israeli Settlements?

Why will Israel's state attorney general be unable to defend the new proposed law? First, because this law is what is known as ex post facto, i.e., it is a law that legalizes an action that was not legal when that original action took place. In the U.S., such a law would be patently unconstitutional, since the Constitution explicitly bars ex post facto laws. Israel, however, does not have a constitution. It is governed both by common law and Israeli Basic Laws.

This newly proposed law violates the ex post facto aspect of common law and voids the legal rights of the Palestinians on whose land a house in question might have been built.

Second, this newly proposed law is illegal under international law. Israel has not formally annexed any of the areas in question. Thus, the property laws that apply are a combination of Turkish and Jordanian, with the military administration responsible for their implementation.

Until now, all the settlement construction was undertaken on public land, thereby allowing Israel the legal argument that it was not contravening international law. However, the moment you legally expropriate land from its rightful owners, you undermine the very legal argument you have been making.

That is why the one member of the Likud Party who voted against this proposed law was Benny Begin (son of former Prime Minister Menachem Begin), who said he would not vote for a law that could not stand up to a legal challenge and would do more harm than good.

So why did this vote come up at all? And why is another harmful bill—one that would limit the muezzin call to prayer—scheduled to be discussed next week?

Simply put, it is the rightward dynamic of Israeli politics, combined with a political system that clearly rewards the most determined players in the game. Over the past decade, Likud, which has been in power for most of the last 40 years, has become the home of more and more settlers from the territories. The settlers have made sure that their members vote in the Likud primaries.

Consequently, Likud Knesset members are often as right-wing and as religious as their colleagues from the Bayit Hayehudi, the official National Religious Party.

Furthermore, a major reason that Netanyahu is prime minister today is that at the end of the last electoral campaign he convinced many of those who would normally have voted for the Bayit Hayehudi party to vote for him, lest the "left wing" come to power.

With the exception of Benny Begin, whose place in the Likud list was secured only by Netanyahu's insistence, Netanyahu finds himself the most moderate Knesset member in his own party. As a result, the prime minister has come to the conclusion that despite whatever concerns he might have, if he wants to stay in power he must not allow himself to be outflanked from the right.

Which brings us to the current bill. The bill originated because of a settlement named Amona. Four years ago, the Supreme Court ruled that Amona had been built on private Palestinian land and must be removed. The government repeatedly requested delays to implement the evacuation.

Finally, the Supreme Court unanimously ruled that the evacuation order was final, the settlement had to be removed by December 25 and absolutely no new delays would be allowed.

At this point, the leadership of Bayit Hayehudi, which includes the education and justice ministers, privately said that there was no choice but to evacuate the settlement. However, some of the more radical members of the party refused to accept that as fact and, together with members of Likud, introduced legislation that would retroactively legalize the Amona settlement—despite the Supreme Court ruling.

While Netanyahu initially warned that passing such a law would be bad for Israel—that it would open Israel up to legal action in the International Court of Justice in The Hague, and that it was bad for our public relations—he ultimately went along for fear of being outflanked.

When the bill was finally submitted to the Knesset, the provision that retroactively recognized Amona had been stripped out of the bill, since Minister of Finance Moshe Kachlon had made it clear he would not support a bill that undermined the Supreme Court. On Thursday night, after a contentious debate, the bill passed in its first reading, with MK Benny Begin being the only member of the coalition opposing the bill.

Initial plans called for getting final approval for the bill next week (i.e., before the planned evacuation of Amona). Now, since the bill will no longer impact the Amona settlement, Defense Minister Avigdor Lieberman has publicly suggested holding off until the Trump administration takes office. It seems likely that will be the case.

In the meantime, settler leaders in the Knesset are rejoicing over the victory and have warned the Supreme Court not to interfere in what they call "a political decision." To many of them, convinced by their religious beliefs that their views are just, an international law, or even Israeli law, should not be a barrier to a decision made by a majority of Knesset members.

Ultimately, the test of Israeli democracy will rest on its vigorous Supreme Court, which will have the final say on the matter.

Marc Schulman is the editor of HistoryCentral.com.

Read more from Newsweek.com:

• Tel Aviv Diary: Will Trump Allow More Settlements?

• Elliott Abrams: Israel and the U.N.'s Theater of the Absurd

• Tel Aviv Diary: Bannon and an Anti-Semitic America