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The Constitutional Overhaul and the West Bank: Is Israel's Constitutional Moment Occupied?

Published online by Cambridge University Press:  15 November 2023

Tamar Hostovsky Brandes
Tamar Hostovsky Brandes*
Affiliation:
Ono Academic College (Israel)
*
Email: Tamar_brandes@ono.ac.il
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Abstract

The protests against the Israeli government's proposed constitutional changes, which started in January 2023, have escalated into overall social upheaval. Protestors, politicians and academics have claimed that the existing ‘social contract’ has been violated, that Israel needs a ‘new contract’, and that such ‘new contract’ should be enacted through a constitution. This article argues that while the calls for the enactment of a constitution are understandable, Israel's current form of control of the West Bank and its commitment to the settlement project hinders the political feasibility of the enactment of a constitution. Those calling for a constitution for Israel perceive it as a solution to the indeterminacy and ambiguity that plague the Israeli constitutional framework. However, Israel's current form of control of the West Bank depends on ambiguity, on the existence of legal grey areas, and on fragmentation of the normative framework. The resolution of these is thus inconsistent with the maintenance of this form of control.

Keywords

constitutional overhauloccupationIsrael
Type
Symposium Articles
Information
Israel Law Review , Volume 56 , Special Issue 3: The Constitutional Crisis in Israel , November 2023 , pp. 415 - 425
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem

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References

1 See, eg, Navot, Suzie and Roznai, Yaniv, ‘From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel’ (2019) 21 European Journal of Law Reform 403CrossRefGoogle Scholar; Ahronson, Ori, ‘Why Hasn't the Knesset Repealed Basic Law: Human Dignity and Liberty – On the Status Quo as Counter-Majoritarian Difficulty’ (2014) 37 Tel Aviv University Law Review 509Google Scholar (in Hebrew); Sommer, Hillel, ‘From Childhood to Maturity: Outstanding Issues in Implementation of the Constitutional Revolution’ (2004) 1 Law and Business 59Google Scholar.

2 Michael Starr, ‘Lapid Calls to Write Israeli Constitution in Response to Judicial Reform’, The Jerusalem Post, 10 March 2023, https://www.jpost.com/breaking-news/article-733948.

3 A Constitutional Assembly for Israel, 2023, https://www.asefam.org/team (in Hebrew).

4 Lazer Berman, ‘Why the Deepening Judicial Crisis Could Be Israel's Constitutional Moment’, The Times of Israel, 10 July 2023, https://www.timesofisrael.com/why-the-deepening-judicial-crisis-could-be-israels-constitutional-moment.

5 Oren Ziv, ‘Israel's Protest Leaders Give the Anti-Occupation Bloc the Cold Shoulder’, +972 Magazine, 6 June 2023, https://www.972mag.com/anti-occupation-bloc-protests-kaplan.

6 Tamar Hostovsky Brandes, ‘Annexation Is in the Details: Why There Will be no Formal Annexation of the Occupied Territories’, VerfBlog, 1 March 2023, https://verfassungsblog.de/annexation-is-in-the-details.

7 The Declaration of Independence, 15 May 1948, https://main.knesset.gov.il/en/about/pages/declaration.aspx.

8 Navot, Suzie, The Constitution of Israel: A Contextual Analysis (Hart 2014) 5–11CrossRefGoogle Scholar.

9 Ibid. See also Keidar, Nir, Ben Gurion and the Constitution: On Constitutional Democracy and Law in David Ben-Gurion's Policy (Bar-Ilan University Press 2015)Google Scholar (in Hebrew); Mautner, Menachem, Liberalism in Israel: Its History, Problems and Future (Tel Aviv University Press 2019) 30Google Scholar (in Hebrew).

10 Navot (n 8) 10.

11 Amir Fuchs, ‘The Frequent Changes to Israel's Basic Laws’, Israel Democracy Institute, 10 August 2023, https://en.idi.org.il/articles/39441.

12 CA 6821/93 United Mizrahi Bank v Migdal Cooperative Village (1995) 408–09.

13 With the exception of east Jerusalem, which Israel annexed and to which it applies Israeli law. The recognition of international law as the governing framework is not complete: Israel has consistently objected to the application of the Fourth Geneva Convention to the territories, although it has declared that it will respect its ‘humanitarian clauses’: Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287.

14 Kretzmer, David and Ronen, Yaël, The Occupation of Justice (Oxford University Press 2021) 41–50CrossRefGoogle Scholar.

15 ibid 4–52.

16 ibid 45. See also Gross, Aeyal, The Writing on the Wall: Rethinking the International Law of Occupation (Cambridge University Press 2017) 353CrossRefGoogle Scholar.

17 Kretzmer and Ronen (n 14) 102.

18 Brandes, Tamar Hostovsky, ‘The Diminishing Status of International Law in the Decisions of the Israeli Supreme Court concerning the Occupied Territories’ (2020) 18 International Journal of Constitutional Law 767Google Scholar.

19 Kretzmer and Ronen (n 14) 104.

20 HCJ 1308/17 Silwad v The Knesset (9 June 2020), unofficial translation at: https://www.adalah.org/uploads/uploads/PDF_Final_English_translation_Settlements_Regularization_Petition_May_2017.pdf.

21 See generally Gross (n 16); Kretzmer and Ronen (n 14).

22 Kretzmer and Ronen (n 14) 25.

23 For analysis of the agreement see The Israeli Law Professors’ Forum for Democracy, ‘Position Paper No 24: Implications of the Agreement Subordinating the Civil Administration to the Additional Minister in the Ministry of Defense’, 5 March 2023, https://www.lawprofsforum.org/post/pp24-e.

24 ‘Memo of Understanding and Division of Responsibility and Authorities between the Minister of Defence and the Additional Minister in the Ministry of Defence’ (in Hebrew), https://ynet-pic1.yit.co.il/picserver5/wcm_upload_files/2023/02/23/SkylTh4As/______________________.pdf.

25 Bruce Ackerman, We the People: Transformation (Harvard University Press 1998) 409.

26 See Manal Totry-Jubran, ‘Constitutionalising Israel's Constitutional System’ (2023) Israel Law Review 355.

27 See Iddo Porat, ‘Political Polarisation and the Constitutional Crisis in Israel’ (2023) Israel Law Review 369.

28 The regulations were extended by the Knesset upon the establishment of the new government: ‘Knesset Extends Judea and Samaria Emergency Regulations by Five Years’, Knesset News, 25 January 2023, https://main.knesset.gov.il/EN/News/PressReleases/Pages/press25123r.aspx.

29 Basic Law: The Knesset, s 38.

30 Colm Quinn, ‘Israel’s Government Collapse Complicates Biden's Visit’, Foreign Policy, 21 June 2022, https://foreignpolicy.com/2022/06/21/israel-lapid-bennett-biden/?tpcc=recirc_latest062921; Carrie Keller-Lynn, ‘Bennett Announces Coalition's Demise, New Elections: “We Did Our Utmost to Continue”’, The Times of Israel, 20 June 2022, https://www.timesofisrael.com/bennett-we-made-a-tough-decision-but-it-was-the-best-for-the-country.

31 Rosenfeld, Michel, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture and Community (Routledge 2010) 147Google Scholar.

32 I discussed this power in another context in Brandes, Tamar Hostovsky, ‘Basic Law: Israel as the Nation State of the Jewish People – Implications for Equality, Self Determination and Social Solidarity’ (2020) 29 Minnesota Journal of International Law 65Google Scholar.

33 On the expressive functions of law see generally Sunstein, Cass R, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania Law Review 2021CrossRefGoogle Scholar.