Netanyahu Warns Cabinet: Outpost Legalization Bill Could Lead to International Probe Against Israeli Officials

Attorney general tells ministers bill strengthens Palestinian lawsuit against Israel. Lieberman to Bennett: 'You'll be happy seeing us in The Hague?' Netanyahu: Passing the bill would push Obama to Security Council.

Prime Minister Benjamin Netanyahu at a cabinet meeting, November 20, 2016.
Emil Salman

Members of the security cabinet were warned in a meeting on Sunday, which concerned the evacuation of the unauthorized outpost of Amona, that the proposed law to legalize such settlements could lead to the opening of a criminal investigation in the International Criminal Court in the Hague against Israeli leaders.

Prime Minister Benjamin Netanyahu, Defense Minister Avigdor Lieberman and Attorney General Avichai Mendelblit all warned members of the security cabinet against the passage of the so-called "Regularization Law," said two sources who were present.

The sources asked to remain anonymous due to the ban on providing the press with information on meetings of the security cabinet.

The security cabinet meeting lasted over six hours, an exceptionally long time. It opened with a presentation by Mendelblit and his deputy for international law, Roi Sheindorf, on the legal issues connected to the bill. Acting National Security Adviser Jacob Nagel and Netanyahu's foreign policy advisor Jonathan Schachter also briefed the ministers on diplomatic and security issues. The ministers then conducted a discussion on the matter, in which almost all of those present spoke at length.

The two sources said representatives of the Justice Ministry and National Security Council, along with Netanyahu and Lieberman, informed the cabinet members – and first and foremost, Education Minister Naftali Bennett, who was on the receiving end of most of the pressure – of a long list of international considerations, both legal and diplomatic, against advancing the law to legalize illegal outposts.

Mendelblit and Sheindorf told the cabinet that the bill was in violation of international law and that passing it in the Knesset could strengthen the complaint the Palestinians filed with the International Criminal Court. The ICC prosecutor, Fatou Bensouda, is currently working on a preliminary inquiry, at the end of which she will decide whether to launch a probe.

A week and a half ago, Bensouda published an interim report on her process which detailed the types of alleged crimes that she is examining. She noted these include settlement construction. Under the rubric of the settlements Bensouda included the Israeli government's after-the-fact "regularization" of construction carried out without the necessary permits in unauthorized outposts, as well as the expropriation and confiscation of private land owned by Palestinians. These two matters are directly affected by the bill being advanced in the Knesset.

Netanyahu and Lieberman agreed with Mendelblit and Sheindorf, and said if the "Regularization Bill" passes then the ICC prosecutor could decide to accept the Palestinian complaint at the end of her preliminary inquiry, and open a full investigation against Israeli leaders for their involvement in decisions concerning settlement construction.

At one stage, Lieberman made a cynical comment to Bennett on the matter of his continued refusal to stop promoting the "Regularization Bill". "So what are you telling us? That you would be happy to see us in the Hague?" said Lieberman, and the rest of the ministers in the meeting laughed, said one of the sources.

Netanyahu and his foreign policy advisers, Nagel and Schachter, raised another reason they thought the law to legalize illegal settlements must be halted: The final days of the Obama administration in America.  In order to prevent the evacuation of Amona, the law must pass before the final date for the evacuation set by the High Court of Justice, December 25. This is less than a month before U.S. President Barack Obama will leave office on January 20, 2017.

Israel fears that Obama may advance a proposal on the Israeli-Palestinian issue in the United Nations Security Council before he leaves office, with the settlements as the focus of the move. In addition, the Palestinians themselves are interested in holding a vote in the Security Council against the settlements in the next few weeks. If this takes place, Israel will need a U.S. veto to prevent the resolution's passage.

Netanyahu, Nagel and Schachter told Bennett and the other ministers that it is possible that Obama will proceed in the Security Council even if Amona is evacuated on time and the Formalization Law on illegal settlements does not advance. Yet the passage of the regularization law in the next few weeks could also be what tips Obama into deciding to use the Security Council option, or at the least not to veto the Palestinian backed proposal in the UN.  

On Monday, at the official memorial ceremony in the Mount Herzl military cemetery in Jerusalem for the IDF soldiers killed during the Sinai Campaign in 1956, Netanyahu said he expects President Obama not to deviate from the policy he has conducted of the last eight years and not to promote a move in the Security Council on Israeli-Palestinian issues.

Bennett, who bore the brunt of most of the pressure applied by Netanyahu during the meeting, said he was willing to examine alternatives that would provide Amona residents with a solution instead of the regularization law, but he demanded to see they are instituted in practice and do not just remain theoretical, said one of the sources who participated in the cabinet meeting.   

Among the solutions for Amona residents the ministers discussed were moving the houses to nearby land that seemingly was abandoned by its Palestinian owners and today are defined by Israeli law as the property of "absentee owners;" building new settlements near the outpost of Shvut Rahel near Shilo as an alternative for the residents of Amona; and establishing an international mechanism for arbitration of property issues, as in the model operating in northern Cyprus.  

Despite the long and detailed debate, security cabinet members dispersed without reaching a decision on the matter, except to conduct further examinations of possible solutions for the resident of Amona. 

On Wednesday morning, only a few hours before the law is scheduled to be presented for its first reading in the Knesset, the security cabinet will meet again. This meeting is the most important and its goal is to reach a decision, or at the very least to achieve significant progress on finding a solution to the evacuation of Amona and the proposed law, said a source involved in the cabinet meetings. "Tomorrow they will try to reach agreements among the ministers on the tracks the government will choose," said the source.

On Monday, Likud MKs and coalition whip MK David Bitan presented the proposed regularization law. Bitan said the purpose of the planned vote for the bill in its first reading on Wednesday is to win two weeks of time, during which they can find an alternative solution that would make the proposed law superfluous.  

Bitan said there is still a disagreement with Kulanu over the section of the bill that would allow the retroactive overruling by the Knesset of a decision of the High Court of Justice on the evacuation of Amona. Bitan proposed that the issue be decided only after the bill passes its first reading, and the bill should include two versions: One with the problematic section and one without. This has yet to be agreed on with Kulanu, so it is still unclear whether the bill will even be brought up for a vote at all on Wednesday, he said.

Netanyahu told his MKs that while he is not pleased with the regularization law, it is already moving on its way, and could wake someone at the UN up, and they would pass a decision that could harm Israel.

At the meeting of Yisrael Beiteinu MKs on Monday, Lieberman said he believes that by Tuesday Mendelblit will provide an answer on where the proposed framework for using absentee lands near Amona stands.