Israel’s legislature passed a law on February 6, 2017 retroactively legalizing Jewish settlements on privately owned Palestinian land. Incredibly, the state’s own attorney general said he would not defend the new law in court because he had determined the law to unconstitutional and in violation of international law. Anat Ben Nun of an anti-settlement group said the law was “deteriorating Israel’s democracy, making stealing an official policy.” Specifically, the Palestinians in the occupied West Bank, including those offered financial compensation for the “long term use of their land” but without being able to reclaim their property under the new law, “are not Israeli citizens and cannot vote for candidates for Israel’s Parliament, or Kenesset.” I submit nevertheless that the underlying casualty in this case is the rule of law itself.
Every government enjoys the power of eminent domain, which effectively means that the right of private property is limited in nature rather than absolute. This fact goes to the amount of power that a government potentially has. In the case of the Israeli pro-settlement law on the private property of Palestinians, the rule of law was undercut by the law’s retroactive aspect. To retroactively legalize something illegal weakens law itself in its capacity as prohibition because confidence in the illegality is lessened and thus weakened.
Such a weakening can be invisible when the retroactivity is in popular demand. In the early 1960s, Israel’s highest court declared a 1950 Israeli law to retroactively apply not only temporally, when the state of Israel did not even yet exist, but also as applicable in another sovereign country! Lest this decision seem sordid and utterly devoid of justifiable jurisprudence, even such a dark underbelly can be easily whitewashed or at least overlooked on learning that the decision was against Adolf Eichmann, whom Israel had illegally kidnapped and tried for his significant role in transporting gays, communists, and Jews to the concentration camps in the horrendous systemic atrocity known as the Holocaust. The desire for justice against him easily hid from view the toll on law itself from what probably boiled down to garden-variety vengeance—the notion of law being distorted in the process. Vengeance is mine, saith the Lord, but not when the sweet scent of revenge at the expense of law itself is too alluring. Perhaps the retroactive law in 2017 may also have been fueled by vengeance, given all the hatred between the Palestinians and the Israelis, though in this case the retroactive vengeance was against the oppressed rather than a former oppressor. In both cases, however, the same basic pattern can be observed with respect to the subtle and gradual corruption of the rule of law itself. The power within the reach of a government—any government—is indeed something to beware.