Last Thursday the Israeli High Court reiterated its position
that Israel does not have an inherent right to ownership of
the West Bank and Gaza Strip nor has it annexed the land.
Rather it is temporarily holding it in belligerent occupation
by right of international law. Therefore, the full extent of
Israeli law and rights does not apply in those areas.
The court thereby rejected 11 petitions asking it to overturn
the Disengagement Implementation Law or some of its
provisions on the grounds that all or parts of the law
violated the settlers' human rights. It also rejected a 12th
petition, filed by residents of Elei Sinai and Nisanit in
northern Gaza, who maintained that the disengagement law
should not apply to them.
In a possible attempt to strike some balance, the Court also
nullified four provisions of the law limiting some of the
compensation, thereby asking the government to pay at least
NIS 40 million more to settlers. The final sum could be much
higher.
It marked the fourth time since passage of the Basic Law:
Human Dignity and Freedom, and the Basic Law: Freedom of
Occupation in 1992, that the court has overruled Knesset
legislation based on those laws.
An extended panel of 11 justices heard the petitions. Ten
ruled that the Disengagement Implementation Law did not
violate the constitution after the four provisions mentioned
above were nullified. The majority opinion was supported by
High Court President Aharon Barak, Deputy President Mishael
Cheshin and Justices Dorit Beinisch, Eliezer Rivlin, Ayala
Procaccia, Asher Grunis, Miriam Naor, Edna Arbel and Esther
Hayut and Acting Justice Yonatan Adiel.
Justice Edmond Levy provided the lone dissenting voice,
voting to nullify the law on the grounds that it violated the
constitution, including the Declaration of Independence. He
wrote that the Declaration stressed the bond between the
Jewish people and the Land of Israel and added that the
Balfour Declaration and the UN had recognized this bond.
The opponents of disengagement were not surprised by the
ruling and hardly expressed disappointment.
The head of the High Court section of the State Attorney's
Office, welcomed the decision. "The process of approving the
law was absolutely proper," she said. "The discussions in the
Knesset committees were very long. . . . The work of
preparing the law in the Justice Ministry was very, very
comprehensive. . . . The disengagement law was based on the
understanding that according to general law the settlers
would not have received enough money."
The court emphasized that unlike the Golan Heights and
Jerusalem, regarding which the Knesset had formally applied
Israeli law, jurisdiction and administration, the regime in
the West Bank and Gaza "is determined by the rules of
international public law, particularly the rules dealing with
belligerent occupation."
It added that the 1907 Fourth Hague Convention on the Laws
and Customs of War applies to the situation in the West Bank
and Gaza. The fact that the belligerent occupation of the
West Bank and Gaza has lasted so long has not changed this
legal situation, the court stressed.
The state had argued that the High Court ought to reject the
petitions out of hand because it was not its job to intervene
in matters of national security and diplomatic policy. The
court rejected this argument on the grounds that the human
rights of thousands of people were going to be harmed by the
disengagement plan.
The court wrote that the evacuation of the settlers violated
their rights according to the Basic Law: Human Dignity and
Freedom, and Basic Law: Freedom of Occupation. "Expelling a
person from his home and forcibly transferring him elsewhere
delivers a severe blow to his dignity, freedom and property,"
the court wrote.
Nevertheless, the fact that the disengagement law violated
the human rights of the settlers did not automatically mean
that it was illegal. According to the "exception clause" of
the basic laws, a regular law which violates the rights
protected in the basic laws is regarded as legal if it is in
keeping with the values of the State of Israel.
The court rejected the petitioners' argument that the law
violated the values of the State of Israel as a Jewish state
because it undermined the fulfillment of the Zionist
dream.
The court also ruled that it "must assume the Knesset and
government considered all of the probability factors with the
help of experts in the various fields who were at their
disposal. They have the national responsibility for these
tough decisions." The court added that they would only
interfere in matters requiring such complex expertise in
extremely exceptional circumstances.
In the minority opinion, Justice Levy warned that the
disengagement law called into question the right of Israelis
to settle anywhere in the Land of Israel. "The right of Jews
to settle in Judea, Samaria and Gaza comes from the same
source that gave Jews the right to settle in Nahariya,
Ashdod, Ashkelon, Ramle and Lod."
The court majority nullified four provisions in the
disengagement law. The first had forced the settlers to
decide immediately whether to accept the compensation offered
by the Disengagement Authority or to sue for damages in a
regular court. According to the ruling, one does not exclude
the other.
It nullified another section which had declared that if a
settler asked for an assessor to assess the value of his
home, he forfeited his chance of receiving the compensation
granted by the Disengagement Authority even if it was higher.
The court also canceled a section whereby only those older
than 21 were eligible for a personal grant in accordance with
the number of years they lived in the settlement. The grant
will now be given to all ages.
This means that each of the 4,000 Gaza settlers under 21
would receive NIS 4,800 a year for every year they have lived
in Gaza. Counting just one year for each of them, for
example, that means the government has to pay, NIS 19.2
million. Many of them have been in Gaza more than that, and
in some cases, for as many as 21 years. The ruling also gives
an additional NIS 4,800 to every evacuee over the age of
21.
The court also ruled that date for determining the length of
residency of settlers would be changed from June 6, 2004, to
the date of the settler's actual evacuation (around August
15, 2005). This means that more settlers will be eligible for
benefits based on seniority.
The Disengagement Administration (known by its Hebrew acronym
Sela) is preparing for an increase in applications for
compensation following the court ruling. "We are happy to
apply any decision that is better for the settlers," it
said.
