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.”[1]
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.”[2]
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.
