Panel on legalizing outposts includes settler with clear bias

One of the members of a new government committee, which will look into the legalization of West Bank outposts, is a settler attorney who has already worked in the service of illegal settlements. The blatant conflict of interest is further proof of the clear desired outcome of the committee’s work.

By Fady Khoury

Prime Minister Benjamin Netanyahu announced earlier this week the establishment of a committee that will examine options for legalizing illegal Israeli settlements and outposts in the West Bank. The selected members of the committee  are former Supreme Court Justice Edmund Levy, who will serve as the chairman of the committee, retired Judge Tchia Shapira and Alan Baker, an attorney.

A lot can be said about this move on Netanyahu’s part. Establishing a government committee to search for ways to legalize illegal outposts in the Occupied Palestinian Territories is nothing if not corroborating Palestinian President Mahmoud Abbas’ accusations that Israel is continuing its attempts to change the reality on the ground in order to undermine the potential for a Palestinian state. Moreover, legalizing illegal outposts would award Jewish right-wing fundamentalists a prize for breaking the law, stealing Palestinian lands and behaving violently to assert their presence in them.

Setting aside for now the major problems with the committee’s mandate, I would like to focus on the appointment of Alan Baker:

Baker is an international law expert, having served as the legal advisor to the Foreign Ministry. In 2004, he began a four-year term as Israel’s ambassador to Canada. Baker’s law firm, MBKB & Co., was recently hired by an organization promoting legalizing illegal settlements in the West Bank. This organization that hired Baker was established by MK Uri Ariel from the National Union party, an alliance of religious-nationalist right-wing parties in Israel, and Nachi Eyal, secretary general of Tekuma – one of the parties in that alliance.

According to reports, in his position, Alan Baker co-wrote a legal opinion arguing that it is legal for Israel to build settlements on Palestinian absentee lands in the West Bank. According to claims by settlers from Migron, an illegal outpost located in the northern West Bank, their outpost is built on such land, which they claim is therefore not privately owned by Palestinians. The opinion also holds that the existing law in the West Bank allows legalizing settlements that were built on private lands in good faith, meaning, if they were built with no knowledge that it was privately owned, or if the owners are compensated.

Israeli legislation from 1950 defines absentee properties as those left behind by Palestinian refugees, and the law grants the state possession of those properties. I don’t intend to go into the problems with this legislation and its immoral application in recent years. But I will state that this law does not legally apply to the West Bank, which is not subject to Knesset legislation, and that the Justice Ministry determined in a legal opinion issued 20 years ago that the state cannot build settlements on West Bank absentee properties. It is also worth mentioning that Migron was deemed illegal in a Supreme Court ruling in August 2011, and the state was ordered to dismantle the outpost by April 2012.

But Baker’s appointment to the committee also raises an issue from the standpoint of administrative law, due to the existence of a potential conflict of interest. As a committee member, he will be expected to objectively examine and assess the legalization of illegal Israeli settlements and outposts in the West Bank – the same question to which he was hired to provide this exact answer in exchange for payment.

Although it is considered acceptable to appoint to public committees experts who have opinions on the matter to be examined, it is not acceptable to appoint as members individuals who have an interest in the outcome. A committee member’s task is to judge the question at hand, and this should be performed with the objectivity expected from judges examining a legal issue with which they have been presented. Any potential bias on their part should be enough reason to disqualify them from deciding on the question brought before them.

Baker was paid to issue a legal opinion in the matter of legalizing illegal settlements. It is highly doubtful that he would renege on his initial analysis, since this would likely make him appear inconsistent, which would have negative implications on his professional image. Therefore, as someone who has been directly involved in the issue with which this committee is entrusted, and about which he has already formulated a position, the presence of bias is likely. Alongside his professional investment in the issue, he would also be personally invested in the outcome of the committee’s deliberations, since Baker is a settler himself who resides in Har Adar – a settlement established in 1986.

The establishment of this committee is fraught with legal and moral problems, starting with its mandate to examine legalizing land theft by fanatic fundamentalist settler groups. Moreover, it hinders any possibility for the renewal of negotiations with the Palestinians. And finally, appointing Alan Baker, who is likely to be bias in favor of legalizing illegal outposts and settlements, as a committee member is a telltale sign of the desired outcome of committee’s examination – to brush land theft with colors of legality.