Three years after it was passed, Israel’s High Court of Justice ruled on Tuesday that a law that would legalize the status of West Bank settlements built on privately-owned Palestinian land was unconstitutional. Why did the court do so, and what would the government do now?
What was the purpose of the law?
The “Law for the Regularization of Settlement in Judea and Samaria” was passed in February 2017. It was meant to retroactively allow the use of privately-owned Palestinian land to build Israeli settlements and to legalize outposts and structures erected on such land. The law, sponsored by former Habayit Hayehudi lawmaker Zevulun Orlev states its purpose is to “regulate the settlement in Judea and Samaria and to enable its continued establishment and development.”
In practice, the law enables expropriating land from Palestinians on which settlements and outposts have been built “in good faith,” according to the law, or with the encouragement of the government – and to transfer these lands to the state. In return, the Palestinians whose land was expropriated would receive alternative land or financial compensation worth 125 percent of the value of the property, which will be determined by an assessor. In cases of construction without a permit in settlements, the expropriation of the land may set in motion a planning process that could include issuing building permits retroactively.
The logic behind the law is that over the years the state has encouraged the construction of settlements and outposts – even if they were illegal under Israeli law. This encouragement was demonstrated in providing infrastructure, providing incentives and financing, or preparing plans. The law refers to the bodies that provided such encouragement broadly, so this could have been a government ministry, local government, or another body. This is why the decision by a local government to construct an electricity line from a settlement to an outpost located on privately-owned land could be considered as encouragement by the state according to the law – thereby serving as a basis for legalization.
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Why is the law problematic?
The High Court overruled the law because it harmed the equality and property rights of Palestinians. The justices said the law was grossly biased in favor of the settlers and allows the legalization of illegal construction only for them. This is because only the communities founded "in good faith" or with the agreement of the Israeli government, local governments and settlement institutions, such as the Jewish Agency or the World Zionist Organization’s Settlement Division, can be legalized under the auspices of the law. This is how a priori the law does not include illegal Palestinian construction.
Another aspect noted by the justices is the fact that the law applies directly to Palestinians and land in the West Bank. This is in spite of the Knesset being unable to directly legislate laws that apply in the West Bank, where the international law applies and the legislative power is in the hands of the military commander.
The law’s path was problematic from the very beginning: A short time after it was approved, a petition was filed against it by a long list of human rights organizations and Palestinian mayors. In addition, Attorney General Avichai Mendelblit refused to defend the law in the High Court. In a legal opinion issued in 2017, Mendelblit wrote that the law was unconstitutional and critically harmed the rights of Palestinians. In another legal opinion issued that same year, in the wake of the petitions to the High court, Mendelblit wrote that the law was a “sweeping and harmful arrangement.”
What has happened since the law was passed?
The regularization law has not been used since it was passed. In August 2018, the High Court issued an interim order to freeze the law, as a result of a request from Mendelblit. According to the ruling, as long as the petition on the matter was being heard, the state was not authorized to demolish houses built illegally in the settlements in question – and also not to expropriate lands from Palestinians. During the hearings, several petitions concerning illegal construction of privately-owned land were frozen, until a ruling was given.
What areas are affected?
According to data from the Civil Administration, as of 2016 there were 3,455 structures in the West Bank that were built illegally on privately-owned Palestinian land, including 1,265 residential structures or public institutions. A total of 1,048 structures were described as illegal a few years after they were built – when maps of the region were corrected and it was discovered that the land belonged to Palestinians or their owners were not known.
According to data from Peace Now from 2016, the implementation of the law would have allowed expropriation of about 8,183 dunams (2,046 acres) of private Palestinian land and the legalization of 55 outposts. For example, according to the data from the organization, the Givat Harel outpost was built on 102 dunams of private Palestinian land, and the Bat Ayin Ma’arav outpost was built on 211 dunams. Even the more established settlements were built on many dunams of private land. For example, according to the figures from the organization, 124 housing units in the Alon Moreh settlement was built on about 269 dunams of private Palestinian land, and in Ofra 392 housing units were located on some 537 dunams of private land.
What are the possible implications of the ruling?
Most of the illegal structures in the settlements and outposts, which the law was intended to legalize, are not in danger of evacuation. “In this sense the ruling is not dramatic because the majority of structures involved are old constructions on land that does not have owners who are making claims – but that leaves the residents in limbo,” explains Dr. Harel Arnon, who was hired to represent the state in the petition to the High Court after Mendelblit refused to do so.
“It won’t lead to evacuation, but also not to regularization – and for now it is not possible to issue construction arrangements for these lands,” said Arnon. The ruling recognizes the problem of a lack of legalization for the structures, and leaves the authorities to solve the problem in other ways – even if they will not necessarily provide solutions for all the structures, he added.
Attorney Michael Sfard, one of the lawyers who represented the petitioners against the law, said that in addition to its nullification, the ruling has a number of legal implications that could be significant. First and foremost, the statement by the justices says that the norm is that the legislator in the West Bank is the military commander, said Sfard. This is in opposition to the position of the attorney general, according to which the Knesset can legislate laws that would apply for the West Bank too. In addition, Sfard says that the justices’ ruling that the expropriation of land must be for public purposes.
Can annexation replace the law?
Broadly speaking, yes. “What is impossible to do in occupied territory – such as expropriation for the needs of the settlers – is possible to do in sovereign territory,” explains Sfard. “This is what happened in East Jerusalem, where areas of Palestinians were expropriated after the annexation to establish the Jewish neighborhoods.” But right-wing groups said the matter depends to a great extent on the scope of the annexation. At this stage, it is still not known if the territories where the law was intended to legalize the construction will be included in the annexation, if it even takes place.
What can the government do now in addition to annexation?
Justice Noam Sohlberg, who was the only justice out of the nine who was against nullifying the law, proposed limiting the definitions in the law so the term “state” would apply only to government ministries – and not to municipal authorities or other institutions that support construction in the settlements. Sohlberg also proposed that the term “settlement” not apply to agricultural areas, and proposed to limit the definition to homes, infrastructure and public buildings in the settlements.
Based on Sohlberg’s observations, on Wednesday Likud lawmaker Michal Shir Segman submitted a bill that would limit the definition of the “state” so that it only involves the government of Israel and the central government, and leaves out local governments.
Another way to legalize the construction in the settlements said the justices is through the use of the "market overt," or marché ouvert legal concept of property ownership, in which as long as transactions are conducted in good faith, under certain conditions they are considered valid – even if they have certain legal faults, such as in the case of the sale of stolen goods. A ruling on the matter is expected to be handed down concerning the Mitzpeh Kramim outpost near Kochav Hashahar in the central West Bank.
In 2011, Palestinian residents of the West Bank petitioned the High Court of justice claiming they were the owners of two plots of land on which the houses of Mitzpeh Kramim had been built. The Civil Administration confirmed that the new area on which the outpost had been built did not belong to the state – and it should not have been allocated to the Settlement Division. At the same time, residents of the outpost filed a law suit in the Jerusalem District Court, saying that the land on which it was built was allocated to the Settlement Division legally, and it had allocated it to the settlers.
They based their suit on the section of the order on government property in the territories, according to which “every transaction made in good faith between the authority in charge and another person in every property that the authority in charge thought at the time of the transaction was government property, will not be disqualified and will remain valid even if it is proved that the property was not government property at that same time.”
Now the residents are waiting for the High Court’s ruling. This is the first time in which they are trying to apply the market overt principle, so this ruling is expected to be key as far as the settlements and outposts are concerned.