13 July 2022

Hanging by a Thread

The Settlements and Israel’s Constitutional Framework (Or: Why Israel is Headed Towards its Fifth Elections)

On June 20, 2022, Israel’s PM Naftali Bennet announced that he has decided, together with Yair Lapid, Israel’s foreign minister and Alternate Prime Minister, to disperse the Knesset.  After ten days of deliberations on the terms, on June 30, 2022, the Knesset voted to disperse itself, and to hold elections on November 1, 2022. According to the agreement between Bennet and Lapid, Lapid will effectively take the role of PM, and will serve as PM of the interim government until the elections. Thus, Israel is currently headed towards its fifth elections within the span of less than four years.

The current government was unstable to begin with and suffered no shortage of political crises throughout its term. Many have argued that even Bennet’s one-year term as prime minister has exceeded expectations.  However, it appears that the ongoing crises and prospects of elections have diverted public attention from the immediate reason for the government’s dissolvement. This is regrettable, as this reason reveals much not only about the political situation in Israel, but also about its legal and constitutional structure, and internal political priorities.

Bennet explained that the dissolvement was necessary to avoid “constitutional chaos”. But what was this pending “chaos”? What Bennet was referring to in such dramatic terms is the prospect of the expiration of the Emergency Regulations (Judea and Samaria—Adjudication of Offenses and Legal Assistance), which were set to expire as a result of the Knesset failing to pass a law extending them. But what are these regulations? And how can the expiration of regulations, let alone emergency regulations, amount to a constitutional crisis?

Law in the Israeli Settlements

Answering these questions requires understanding of the legal framework that Israel applies in the Occupied Palestinian Territories (OPTs) in general, and in the Israeli settlements in particular. Following the six-day war in 1967, Israel annexed East Jerusalem and the Golan heights. Accordingly, Israel applies its own law in these territories.  The West Bank, however, has not been formally annexed to date.

Thus, even from an internal Israeli perspective, the legal framework that applies in the West Bank is international law of occupation (although Israel recognizes the applicability of only parts of the law of occupation, notably, excluding the application of the Fourth Geneva Convention).  Practically, this implies that the legal framework that applies in the parts of the West Bank held by Israel is a two- tiered framework.  In accordance with Article 43 of the Hague Regulations, the first tier includes the Jordanian law that applied in the territory at the time of occupation. The second tier includes the subsequent orders of the Military Commander.

According to International Humanitarian Law (IHL), this legal framework applies to the occupied area territorially. Theoretically, then, all inhabitants of occupied territories should be subject to the same law, and it should also apply to Israeli settlers who reside in the West Bank, regardless of whether the settlements themselves violate international law.

In order to circumvent this result, an array of legal measures has been applied to ensure that the settlements themselves and the daily lives of settlers are governed by Israeli law, rather than by IHL. Some laws are applied to settlers personally. Other laws are applied through military orders, which ensure that the substantive norms that apply in settlements are in line with those that apply within Israel. The result is that in many respects, the content of the law that applies within Israel is identical to the content of the law that applies to settlements.  The normative source of the law, however, is different. In Israel, it stems from Knesset legislation.  In the settlements, it is grounded in military orders.  The result is that while Palestinian residents of the OPTs are governed by a certain set of norms, Israeli settlers are governed by a different set of norms, that applies to them specifically. This body of law can be titled “Settlements Law”, and it ensures that the law in the settlement is equivalent to the law within Israel.

The Emergency Regulations (Judea and Samaria—Adjudication of Offenses and Legal Assistance) (“the Regulations”) are an additional important layer of the Settlements Law. They determine, among other things, that Israeli courts will have jurisdiction over Israelis residing in the OPTs in various matters, and that Israeli law will apply in such matters. According to the Regulations, for example, criminal trials of Israeli citizens take place in Israel and under Israeli law, rather than in military courts, as the criminal trials of Palestinians in the OPTs take place. The Regulations also address issues such as the status of entities formed in the OPTs, the collection of taxes, the execution of court orders and more.

The Regulations were enacted in 1967, under Article 9 of the Law and Administration Ordinance,  which was later replaced by Article 39 of Basic Law: The Government,  allowing the government to issue emergency regulations. Emergency regulations depend on the existence of an emergency situation, and they remain in force for the period of three months, unless extended by law. The former requirement is satisfied through the fact that Israel has been in a formal state of emergency since its establishment. The latter requirement was fulfilled through extension of the Regulations. Indeed, since their enactment, the Regulations have been extended on an ongoing basis for consecutive periods of five years, maintaining the legal framework that allows Israeli courts to apply jurisdiction in the West Bank, without formally annexing it.

This ongoing practice, which has been going on for five and a half decades, encountered unexpected hurdles due to the composition of the current government. The combination of left-wing members of the coalition refusing to extend the regulations on ideological grounds, and right-wing members of the opposition refusing to vote for the extension as part of their general refusal to support the government, led to a situation in which there was, for the first time, a real prospect of expiration of the regulations. The decision to disperse the government was thus a “way out”: under Israeli law, the extension will be automatic during the transitional period, until after the election of a new Knesset.

The gap between social and legal reality

In analyzing Israel’s ongoing political turmoil, public attention is likely going to focus on the prospects of the different candidates and the results of elections. The immediate reason for dispersion of the government may seem unimportant, even technical, in the frenzy of political events. However, overlooking this reason is a mistake. The fact that expiration of the Regulations is perceived by the Israeli public as an inconceivable situation, and that this consensus encompasses members of center and even left-wing political parties, demonstrates the extent to which the perception of the settlements as part of Israel is entrenched in Israeli society.

What often flies under the radar, certainly from an international perspective, is how wide the gap is between the social and the legal reality in Israel with respect to the status of the Settlements. Israel did not annex the OPTs, with the exception of East Jerusalem, and thus the Settlements are legally not in Israel, even from an internal Israeli perspective. While much has been written about Israel’s  “creeping annexation”, the process does not subject Israel to the repercussions that would be associated with a formal one, and Israel has avoided the latter.  However, from a social and political Israeli perspective, the Settlements are perceived as effectively part of Israel, even if the legal framework supporting this premise hangs on a thread. Legal scholars, and comparative legal scholars in particular, naturally tend to focus on formal, legal status. However, the consensus regarding the necessity of the Regulations, and the portrayal of their expiration as “constitutional chaos”, attests to the actual status of the Settlements within Israel more than their formal, legal status.

SUGGESTED CITATION  Hostovsky Brandes, Tamar: Hanging by a Thread: The Settlements and Israel’s Constitutional Framework (Or: Why Israel is Headed Towards its Fifth Elections), VerfBlog, 2022/7/13, https://verfassungsblog.de/hanging-by-a-thread/, DOI: 10.17176/20220713-233558-0.

One Comment

  1. Ruti Teitel Fri 22 Jul 2022 at 15:59 - Reply

    Thanks for this really insightful post- tweet it out- as I dont think most understood the underlying reasons for the collapse of the government,,,

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