Israeli Attorney General Asks High Court to Strike Down Land Expropriation Law

Avichai Mendelblit argues that bill gives full preference to settlers' interests over property rights of Palestinian land owners

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FILE PHOTO: Palestinians walk on a dirt road near the West Bank Jewish settlement of Maon, south of Hebron May 19, 2014.
FILE PHOTO: Palestinians walk on a dirt road near the West Bank Jewish settlement of Maon, south of Hebron May 19, 2014.Credit: REUTERS
Yotam Berger
Yotam Berger

Attorney General Avichai Mendelblit asked the High Court of Justice on Wednesday to strike down a law passed by the Knesset in February, permitting the state to expropriate privately owned Palestinian land in West Bank settlements under certain conditions.

Mendelblit, who refused to defend the law in court on the state’s behalf, called the legislation unconstitutional in his brief to the court Wednesday and said it served an improper purpose.

Commonly called the Land Regularization Law, it allows the state to take over privately owned Palestinian land on which settlements or outposts were built “in good faith or at the state’s instruction” as government property, and denies its owners the right to use or possess such land until there is a diplomatic resolution of the status of the territories.

The law gives Palestinian landowners the right to choose compensation consisting of annual use payments for the equivalent of 125 percent of the land’s value for renewable periods of 20 years, or an alternate plot of land if this is possible.

At the time of its passage, Shuli Moalem-Refaeli (Habayit Hayehudi) praised the law. Referring to the West Bank by its biblical name, she said: “This is a historic day, with the passage of a historic law. The homes of citizens who made their home in Judea and Samaria, with the encouragement of Israeli governments, will no longer be a target for extremist left-wing organizations that seek to destroy and to damage settlement.” 

The High Court has suspended implementation of the law until a final ruling is made on legal challenges to it filed by Palestinians and left-wing Israeli organizations. The Knesset passed the legislation over the strong objection of Mendelblit, who warned at the time that it was unconstitutional.

Earlier this month, Mendelblit issued a legal opinion on a related issue, whether privately owned Palestinian land could be expropriated for an access road to an unauthorized West Bank settlement outpost. The opinion signaled a softening of Mendelblit’s position in light of a ruling by Supreme Court Justice Salim Joubran, which recognized settlers as local residents whose needs must be addressed. But Mendelblit’s stance in his brief to the court on Wednesday made it clear he had not softened his stance on the expropriation law.

“There is no alternative to a judicial ruling declaring the Land Regularization Law unconstitutional,” he wrote, saying it applied to situations in which there is no justification for it, such as construction carried out even though the person commissioned to do it “is demonstrably aware of the ownership status of the land and is acting without a legal permit.”

Calling the law’s approach “sweeping and harmful,” he said it gives full preference to the rights and interests of settlers over “the property rights of the owners of the land in the area.” The legislation, Mendelblit claimed, does not pass the legal requirement of proportionality, either.

The attorney general also called the law unusual in Israel in its direct applyication of Israeli law to the West Bank. “The legislation was not designed to apply personally only to Israeli citizens and residents,” he wrote, and would have a substantial impact on the rights of Palestinians in the area. “It is not appropriate for such a significant change in the approach to legislation in the area [the West Bank] to be carried out [simply] incidentally by applying individual Knesset legislation in [the West Bank],” he wrote.

Due to Mendelblit’s refusal to represent the state in defending the law, a private lawyer, Harel Arnon, was retained to do so. Arnon has already filed his response to the petitions challenging the law and has asked the court to deny them, insisting that the law is constitutional.

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