State undecided on whether Basic Law applies to settlers
By Yuval Yoaz, Haaretz Correspondent 16 May 2005
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
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
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