State Undecided On Whether Basic Law Applies To Settlers

2005-05-16

By Yuval Yoaz, Haaretz Correspondent

www.haaretz.com/hasen/ spages/576323.html

The attorney general has not yet decided whether Israelis living in the West Bank and Gaza enjoy constitutional protection of their civil rights under the Basic Law of Human Dignity and Liberty, due to the legal ambiguity of the territories' status and doubts that the Basic Law applies to the territories.

In the coming weeks, the Justice Ministry will hold discussions at the highest levels to come up with the state's position on this issue.

The question has emerged as a result of recent hearings by the High Court of Justice on two current, controversial issues that have been the subject of petitions to the court - the Evacuation Compensation Law and the separation fence. The state explained that the fence was not only meant to protect the citizens of the state, but also the settlers in the territories, which raised the question of which of the settlers' civil rights the fence is meant to protect. Until now, the assumption had been that the Basic Laws cover all citizens of the state, including those living in the territories.

Last Monday, a nine-justice panel heard four petitions regarding the separation fence, filed by residents of the villages of Budrus and Shukaba in the West Bank and residents of A-Ram in northern Jerusalem. The court asked the state to detail its position on the ruling made by the International Court of Justice in The Hague on the fence.

Attorney Osnat Mandel, who heads the department for High Court petitions in the State Prosecutor's Office, explained that the right of the military commander in the territories to put up the fence was anchored in international law as part of the rules of war. These rules, said Mandel, make it possible to regard the fence as a form of "fortification" put up during wartime to protect military forces and Israeli citizens in the area.

Court President Aharon Barak, who is chairing the panel, asked whether the Basic Law on Human Dignity and Liberty does not provide an additional source of legal authority for construction of the fence. "The Jewish settlements in the territories may not enjoy the humanitarian part of the Hague and Geneva conventions," said Barak, "but the settlements do enjoy the civil rights guaranteed in international law and the civil rights of the State of Israel; the Basic Law provides rights to the settlers of the West Bank and Gaza, and the first right is the right to life."

But Mandel refused to confirm that this is the state's position, saying that a final decision on the state's position on this issue has not been reached. Barak told her that the state's official position on the matter is important to him.

Barak also pointed out the lack of consistency in the state's position on the validity of the Basic Law on Human Dignity and Liberty with regard to the fence as compared to the Evacuation Compensation Law. The petitions against the Evacuation Compensation Law attack it on the grounds that it violates civil rights as guaranteed by the Basic Law on Human Dignity and Liberty. Mandel responded that on the petitions about the disengagement, "the state agreed to assume that the Basic Law applies, but we have not locked ourselves into that legal position."

"We can't say that the Basic Law applies in the Gaza Strip regarding the disengagement, but does not apply in the West Bank regarding the fence," said Barak. He noted that the evacuation of the Sinai settlements was by order of the military commander, while this time a law was passed to evacuate the settlements - and the reason is that since the Sinai withdrawal, the Basic Law on Human Dignity and Liberty had been promulgated and civil rights were given a constitutional status.

However, even if the Basic Law on Human Dignity and Liberty does apply to the settlers, that does not mean the disengagement is unconstitutional. It merely means that the court would have to decide whether the Evacuation Compensation Law is proportional and its goals worthy.

The state told the court that in the coming weeks, the Justice Ministry will hold discussions meant to determine the state's legal position on whether the Basic Laws apply to Israeli residents of the territories (there is a consensus that the Basic Laws do not apply to Palestinian residents of the territories). Taking part will be Attorney General Menachem Mazuz, State Prosecutor Eran Shendar and Deputy Attorney General for International Affairs Shavit Matias. The state will present its position in both petitions.

Source: IMRA – Independent Media Review and Analysis