Published by The Lawfare Institute
in Cooperation With
The Israeli government’s deadline to comply with a court-imposed order to demolish Amona, an illegal Israeli outpost in the West Bank, has spurred proposed legislation that aims to “legalize” many other settlements in the area. Israeli Attorney General Avichai Mandelblit opposes the proposed legislation on the ground that it is unconstitutional and inconsistent with Israel’s obligations under international law. Nonetheless, the Netanyahu coalition—under significant pressure from the right-wing Jewish Home party—decided to press ahead with the legislative effort. If the Israeli Parliament (Knesset) eventually passes the law, it is difficult to see how it could survive a constitutional challenge in court. It is also unclear who will defend it.
The Amona Case
The Supreme Court of Israel (sitting as the High Court of Justice) has considered the Amona issue in several cases, beginning in 2005. The petition that led to the current crisis was filed in 2008 by the registered Palestinian owners of land in Amona. The petitioners sought to compel the government to enforce demolition orders it had issued for Amona, which was built on private Palestinian lands in contravention of the planning and building laws that apply in the West Bank. (Israeli law generally does not apply in the West Bank, which is governed by a combination of military law, old local law and the customary international law of belligerent occupation).
The respondents for the government, represented by the Attorney General’s office, did not contest the fact that Amona was built illegally on private Palestinian lands. They made a commitment to the Court to enforce the pending demolition orders, but failed to live up to that commitment despite receiving a number of continuances. Finally, in December 2014 the Court ordered the government to demolish the outpost in its entirety within two years, based mostly on the government’s own commitment to do so. The Court emphasized that illegal construction on private Palestinian land in the West Bank should receive high priority in law enforcement, as the government itself has recognized (HCJ 9949/08, Hebrew). The government filed a last-minute motion in an attempt to delay the execution of the judicial order, arguing, among other things, that execution would lead to violence. The Supreme Court denied the motion. Undeterred, the government apparently filed yet another request for a brief one-month continuance over the weekend, arguing that it needs the time to find an alternative location for the residents of Amona.
The Court hardly mentioned international law in the Amona decision. It instead framed the legal issue as a narrow administrative law question—whether the government should be compelled to execute its own demolition orders. The Court only briefly noted that the military commander in the West Bank is under an obligation to actively protect the property of the protected population in the area, including through preventing unlawful takeover of privately owned lands. This has been the typical framework of analysis the Court has deployed in settlements cases in recent years.
While this administrative framing of a case that quite obviously implicates international law might seem odd to international lawyers, it needs to be understood in light of the Court’s precedents concerning settlements. The Court has never ruled on the legality under international law of settlements built on public lands in the West Bank, for justiciability reasons. The Court did, however, rule in the 1979 Elon Moreh case that civilian settlements built on privately owned Palestinian land absent a specific military justification are illegal under the customary international law of belligerent occupation. Following that decision, the Begin government issued decision 145 on settlement policy, stating that future settlements will be built on public lands (see here, pp. 60-61).
The more recent settlements cases have followed the same distinction between private and public lands (see, for example, HCJ 7292/14, Hebrew). The Court has held the government to its own commitment to prioritize demolition orders issued for settlements built without permits on privately owned land, while giving it leeway to retroactively issue permits for construction on public land that does not comply with local planning and building laws.
The Regularization Law
The right-wing Jewish Home Party, a member of the Netanyahu coalition, seized on the opportunity created by the Amona crisis to introduce sweeping legislation that sets out to “legalize” illegal Israeli settlements in the West Bank—that is, settlements built without the necessary permits. The proposed Regularization Law covers settlements built on private lands, sharply deviating from longstanding government policy as well as judicial precedents deeming such settlements illegal under international law. The law has already passed a first reading (out of three) in the Knesset last Wednesday.
Of course, the term “legalize” is misleading, because the law would have no bearing on the legality of settlements under international law. It would actually strengthen the legal case against them.
The proposed law empowers the military commander in the West Bank to appropriate privately owned land on which an Israeli settlement is located, provided that the settlement had been constructed with the State’s consent or without the settlers knowing that the land is privately owned. Consent is defined broadly: it can be given ex-ante or ex-post, explicitly or implicitly. Merely providing a settlement with services or funding qualifies as consent under the law. “The State” is also broadly defined not only as the Israeli government, but also local authorities, the military commander in the West Bank, and organizations like the Jewish Agency for Israel.
The appropriation of privately owned land will take place within six months of the law’s publication, and will remain in force pending a “political determination regarding the status of the territories and the Israeli settlements therein” (article 3(2), my translation). The registered owners of the appropriated land and other right-holders would either receive compensation (125% of the value of land usage rights) or an equivalent lot in a different location. The usage rights in the appropriated land will then be allocated to the Israeli settlements.
The proposed law further provides that if the ownership status of a parcel of land on which a settlement that satisfies the abovementioned conditions is located is unknown, it would be registered as public land within a year of the law’s publication unless someone proves that they own that land. The burden, therefore, is on the owners to establish their claim in a relatively short period of time.
Finally, the Regularization Law would suspend all the pending planning and construction enforcement proceedings pertaining to the settlements it covers. In addition, it requires the government to complete the necessary procedures under the applicable planning and construction laws, and issue permits (retroactively) as soon as possible.
The original version of the draft legislation also included a provision that would reverse the Supreme Court’s orders to demolish Amona and other illegal outposts. That provision has been dropped from the draft due to strong objections from the Attorney General and coalition members.
Attorney General Mandelblit has concluded that the proposed Regularization Law is inconsistent with Israeli constitutional law and Israel’s obligations under international law. It appears that he will not defend it in court, but might allow the government to retain private counsel (see here). According to press reports, his main concern appears to be the law’s provisions regarding settlements located on private land. The specifics of his reasoning, however, are unclear, because no detailed legal opinion has been made public so far (as far as I am aware).
In Israel, the Attorney General is an independent figure. He is not subordinate to the government. His role is to protect the public interest and the rule of law, rather than merely serving the interests of the government. His legal interpretations are binding on the government, unless and until they are reversed in court. He has a monopoly over representing the government in court, and he is entitled to refuse to defend positions that he finds to be unlawful—this rarely happens, but has happened before. The Attorney General’s legal positions therefore carry substantial weight.
Considering Mandelblit’s bottom-line conclusion concerning the Regularization Law, the law is highly unlikely to survive a constitutional challenge in the Supreme Court if it makes it through the Knesset. It is hard to imagine that the Court will be more permissive than the Attorney General on settlements. At the moment, there is little reason to believe that Mandelblit will reverse course when the time comes and agree to defend the law.
Turning to the substance of the law’s provisions, and without attempting to provide an exhaustive analysis of the complex legal issues it raises, here are some of the difficult questions the Supreme Court would likely have to address in the event of a constitutional challenge:
From the domestic perspective, can Palestinian residents of the West Bank rely on Basic Law: Human Dignity and Liberty, Israel’s main constitutional human rights norm, to challenge the law? This is an open question. The Supreme Court has stopped short of declaring that the Basic Law covers residents of the West Bank who are not Israeli citizens (see here, concerning Gaza settlers׳ petition against their eviction in the framework of the 2005 disengagement plan; and here, Hebrew). But the Regularization Law presents the Court with a unique case of Knesset legislation whose primary aim is to regulate land outside Israeli jurisdiction. There is reason to expect that the Court would determine that residents of the West Bank could rely on the Basic Law to challenge the law under these unusual circumstances. A different conclusion would mean that the Knesset would be allowed to essentially do as it pleases in the West Bank.
Assuming that the Basic Law applies, does the Regularization Law comply with its requirements? Primary legislation that infringes upon constitutional rights must fulfill two main requirements under the Basic Law: it must serve a proper purpose that befits Israel’s values as a Jewish and democratic State, and it must be proportional. Proportionality requires that there be a rational connection between the means chosen by the legislature and the law’s purpose; that those means be the least harmful way to achieve the law’s purpose; and that the benefits arising from the law outweigh the harm to constitutional rights. This framework of analysis allows for substantial judicial discretion, and it is not easy to predict its outcome. Even so, it seems to me that the justices would find it difficult to uphold the Regularization Law.
There is little doubt that the Regularization Law infringes upon the right to property, enshrined in article 3 of the Basic Law. Furthermore, it infringes upon the right to equality, which the Supreme Court has recognized as a constitutional right emanating from the Basic Law, by facially discriminating between Israeli and other residents of the West Bank on the basis of nationality. If Israelis illegally build on privately owned land, they get to have that land appropriated and allocated to them by the military authorities. If they illegally build on public land, they get retroactive permits. Those benefits are not available to Palestinians who do the same.
Are those constitutional rights violations consistent with the requirements of the Basic Law? Consider the following questions: is reallocating land from Palestinian owners to Israeli settlers a “proper purpose” befitting Israel’s values as a Jewish and democratic state? How about legalizing illegal construction? Aren’t there less harmful means by which to address the problem of unauthorized Israeli settlements located on privately owned lands? How should the absence of basic procedural safeguards for Palestinians in the face of sweeping appropriation of land in a very short period of time affect that analysis? Is the harm to the property rights of Palestinians outweighed by the benefits to Israeli settlers? Is it reasonable to consider that the plight of the settlers carries more weight than that of the Palestinian residents of the West Bank whose land is to be appropriated? This is just a fraction of the questions the Court would need to answer.
Does the law comply with Israel’s obligations under international law? Even setting aside the controversy over the legality of Israeli West Bank settlements in principle, the proposed law violates the Supreme Court’s interpretation of applicable customary international law norms. Specifically, the law violates the norms that prohibit appropriation of private property in territory under belligerent occupation, unless such appropriation is necessary for military purposes (see Hague Regulations 46 [prohibiting confiscation], 52). The Regularization Law clearly states that its purpose is to “Regularize Israeli settlements in Judea and Samaria and to facilitate their continued development” (article 1, my translation). There is not even a hint of a military purpose.
Does this matter, from the Court’s point of view, in considering whether to strike down primary legislation? The fact that we are talking about primary legislation could make it difficult for the Supreme Court to rely on customary international law to strike down the law. Customary international law is directly applicable in Israeli domestic law only insofar as it does not contradict primary legislation. It would be hard to interpret away the clear contradiction between the proposed law and the relevant customary norms.
That said, it is unclear whether the ”ordinary” rules would govern legislation that primarily applies in the West Bank, rather than within Israeli jurisdiction. We are essentially in uncharted waters here. Difficult questions arise as to the Knesset’s very authority to legislate for the West Bank. The Regularization Law undermines the longstanding Israeli practice of avoiding direct application of Israeli law in the West Bank, with the exception of exercising personal jurisdiction over Israeli citizens residing in the area.
All things considered, the Regularization Law will likely be dead on arrival if eventually passed. (Recent reports indicate that Prime Minister Netanyahu does not want the law to pass, and that in any event, the law will not be passed before President Obama leaves office in order to mitigate political backlash). But the politically explosive task of doing away with the law will be left to the Supreme Court, further hurting an institution that is already under attack over its settlements case law. Immediately after the law passed the first reading in the Knesset, the leader of the Jewish Home party, Naftali Bennett, sent a less-than-subtle message to the Court: “I want to thank Peace Now [a left-wing NGO] that kept sending us little mosquitos, one HCJ petition after another. Thanks to them we are no longer fighting little mosquitos[.] We are draining the swamp."