An indefensible law that weakens Israel

If the Israeli Settlements Law seeking to retroactively validate unauthorized outpost settlements on private Palestinian property was not prejudicial enough, there is now a follow-up proposal by some Israeli Ministers to curb the authority of the Supreme Court itself, long-regarded as a centerpiece for the protection of the rule of law in Israel. As former Prime Minister Menachem Begin put it in an oft-quoted but compelling statement – “Yesh shoftim b’Yerushalayim — there are judges in Jerusalem,” reflecting not only respect for the Supreme Court, but for the Court’s decision in 1979 to declare the Elon Moreh settlement illegal. As the Prime Minister added and which is less well-known, “naturally we shall not make any announcements, which are completely unnecessary, saying that the Supreme Court’s decision should be respected. They are unnecessary, because this goes without saying.”

Let me make full disclosure at the outset: I was a strong proponent of the adoption in 1992 of the Israeli Basic Law on “Human Dignity and Freedom,” which ushered in what has been characterized as Israel’s “Constitutional Revolution,” not unlike Canada’s Constitutional Revolution and its Charter of Rights and Freedoms of ten years earlier, and on which the Israeli initiative itself drew. Simply put, these Basic Laws in both countries transformed each from Parliamentary democracies to Constitutional democracies. The Supreme Court in each country was vested with the power to declare parliamentary legislation unconstitutional not because the Court sought that power – let alone usurped it – but because parliamentary enactments in each case vested the Courts with that power.

Indeed, as a longtime Canadian Parliamentarian – let alone former Minister of Justice and Attorney General – I am not unmindful of concerns expressed by parliamentarians also in Canada about this constitutional transition which has not always been accepted or understood. In a word, we moved in both countries from the sovereignty of Parliament to the sovereignty of the Constitution, with the Supreme Court having the central role in the interpretation and application of parliamentary legislation for the purpose – as authorized by Parliament itself – of protecting the constitution and upholding the rule of law.

Moreover, as someone who has appeared many times before the Israeli Supreme Court, I have respected its role as a guardian of the Israeli constitution, of the rule of law, and of civil liberties in Israel; and as someone who has worked in the international parliamentary and diplomatic arena, I know also of the respect that the international community has had for Israeli constitutionalism, democracy, and the protection of the rule of law, and the importance of the judiciary in underpinning all these values.

Regrettably, the tabling and timing of the Israeli Settlements Law has undercut and diminished the understanding – let alone respect – for the Israeli case and cause, prejudiced Israeli international diplomacy, and perhaps most important, undermined respect for the rule of law, civil liberties, and the protection of minority rights in Israel.

First, as to the appreciation of the justice of the Israeli case and cause, the Settlements Law has emboldened the perception of those who view the “illegality of Israeli Settlements” as the core of the conflict, if not also the primary obstacle to peace. It has thereby deflected, if not obscured, the mainstream Israeli position – even of those who are critical of settlement policy – that Palestinian rejectionism of Israeli statehood is the core of the conflict. Regrettably, the Knesset Law – and its settler support – is a classic example of one’s “being hoisted by their own petard”.

Second, and again as much a matter of timing as tabling, the legislation has undercut Israeli diplomacy at the very moment that Israel is intensely engaged in it. For example, the legislation was tabled on the very day Prime Minister Netanyahu was meeting with UK Prime Minister Theresa May, which overshadowed the content and core of the meeting, transforming it from one of support for Israel – with Prime Minister Theresa May invoking the 100th anniversary of the Balfour Declaration in referencing the UK’s longstanding support for a Jewish homeland – to one of focus on the settlements as an obstacle to peace.

This has been paralleled by similar statements from other governments and political leaders including, in particular, German leaders, who in an almost unprecedented rebuke said that Germany’s trust in Israel was “deeply shaken,” while Chancellor Angela Merkel has now canceled the traditional high-level bilateral cabinet government meetings that were scheduled to take place between German and Israeli government leaders. Indeed, the European Union, which was about to hold a summit on deepening relations with Israel and creating a work plan for this purpose – after an almost five year hiatus in this regard – has decided to postpone this high-level meeting, which was much more prejudicial to Israel than the putative advantage this settlement legislation might otherwise bring to its supporters.

Indeed, and as a corollary, in the matter of public diplomacy, one can cite chapter and verse as to how the discourse respecting Israel has now focused on the “illegality” of settlements as the obstacle to peace, thereby, ironically, giving retroactive validation to the otherwise discriminatory UN Security Council Resolution 2334. Clearly, the UN Security Council Resolution was more than just about the illegality of the settlements and often read as a prosecutorial indictment that invited further internationalization of the conflict if not criminalization of Israel in the international arena. But the Settlements Law has now been incorporated by reference in the ripostes by disparate political actors, from the UN Secretary-General to the European Union, to governments themselves, while providing fodder for the NGO community as well.

Third, and perhaps most importantly, the Settlements Law has invited critiques – if not outright condemnation, often by those who admittedly held these positions anyway – of Israel’s core values of democracy, the promotion of the rule of law, the protection of civil liberties, and the securing of minority rights. Indeed, the critique has drawn sustenance from the refusal of the Israeli Attorney-General Avichai Mandelblit to defend the law before the Israeli Supreme Court – with suggestion that he may appear before the Court in opposition to the Law – and where he has otherwise characterized the Settlements Law as both a violation of Israeli domestic law as well as international law including the Geneva Convention.

This refusal by the Attorney General – in whom is vested the authority to both counsel the Government on the constitutionality of its actions and to represent the Government before the Supreme Court – constitutes a damning indictment of the illegality of the Israeli action and its defiance of Supreme Court principle and precedent in these matters, a view otherwise shared by the Government’s own lawyers.

Regrettably, the illegality of the government action and its persistence in pursuing it before the courts (admittedly, with some who voted for it for domestic political reasons, hoping that the court would rescue them from their political actions) have invited allegations of Israel as an “apartheid state” – even from supporters of Israel. Such a characterization unfortunately lends credence to Israel’s adversaries’ invoking of the same epithet.

In arguing against the Settlements Law, Israeli critics have also raised the specter of Israel being hauled before the International Criminal Court, ignoring that the ICC might otherwise not have jurisdiction to hear any case involving Israel (given that the Palestinian Authority is not yet a state and that the illegality of the settlements does not rise to the “gravity” of the offense required for purposes of ICC jurisdiction). But their very allegations, while designed to deter the Settlements Law, inadvertently risk becoming a self-fulfilling prophecy by inviting ICC jurisdiction, unjustified as such a step would be.

As I write these words, Government Minister Yariv Levin – speaking at a special Knesset plenum discussion marking the 68th anniversary of the Knesset and in the presence of Supreme Court President Miriam Naor – warned the Supreme Court against pronouncing on the legislation. Said Levin, there’s no other example in the world of this situation in which the Court is granting itself — without any proper legal regulation — the authority to strike down laws that passed the Parliament.”

Minister Levin is wrong both as a matter of fact and law. Indeed, it was an Israeli Parliamentary law – the Basic Law on Human Dignity and Freedom – that, inter alia, invests the Supreme Court with the authority to do this – and where the Government and Parliament had previously acknowledged and respected this authority in general and with regard to such cases in particular. Ironically enough, however – or perhaps not so ironically, but revealingly – it may yet be the Supreme Court of Israel that will relieve and rescue Israel from the political, diplomatic, and legal morass that this Settlement legislation has created.

Simply put, in striking down the law, the Supreme Court can both vindicate the importance of the rule of law and Israeli Constitutionalism, as well as validate the independence of the Supreme Court from the assaults upon it. And more: the Supreme Court will be the very instrument that would pre-empt and preclude any recourse to the International Criminal Court – even if one were to claim that it has jurisdiction – as if the Palestinian Authority were a state – for ICC jurisdiction presupposes that a country does not have an independent legal process that can protect the rule of law – otherwise known as the complementarity principle under international law. One may be able to say yet again, as Prime Minister Begin put it, “Yesh shoftim b’yerushalayim.”

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Irwin Cotler is Former Minister of Justice and Attorney General of Canada, longtime Parliamentarian, and Emeritus Professor of Law at McGill University.