Israel Defends Law Allowing Expropriation of Palestinian Lands, Even 'If Someone Is Hurt'

The law was passed by the Knesset in February 2017 to retroactively legalize thousands of structures built illegally on private Palestinian land across the West Bank, in settlements and in outposts, but was then frozen

Houses in Shvut Rachel, a West Bank settlement located close to Shilo, near Ramallah October 6, 2016
\ Baz Ratner/ REUTERS

A representative of the state told the High Court of Justice Sunday that the law allowing the expropriation of private Palestinian land for Jewish settlements “reflects the taking of governmental responsibility,” even as he admitted that it was “imperfect, someone is hurt” by it.

The law was passed by the Knesset in February 2017 to retroactively legalize thousands of structures built illegally on private Palestinian land across the West Bank, in settlements and in outposts. Implementation was frozen as part of an agreement between the government and the petitioners until the High Court rules on the law’s constitutionality.

An expanded High Court panel heard petitions Sunday from several left-wing organizations and over 20 Palestinian municipalities in the West Bank against the law, whose official name is the Regularization of Settlement in Judea and Samaria Law.

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Due to Attorney General Avichai Mendelblit’s refusal to represent the state in defending the law, a private lawyer, Harel Arnon, was retained to do so. Arnon has asked the court to deny the petition, insisting that the law is indeed constitutional.

Legal experts, as well as many politicians, expect the High Court to overturn the law — especially as Mendelblit has asked it to strike down the law.

In a brief to the court that he filed in November, Mendelblit called the legislation unconstitutional and said it served an improper purpose.

The Knesset passed the legislation over the strong objection of Mendelblit, who warned at the time that it was unconstitutional.

Arnon contested Mendelblit’s analysis, explaining that the state “has spoken with two voices until now — helping to prepare the ground by providing infrastructure, funding and the expansion of communities even though actions were tinged with illegality to various degrees.”

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This, Arnon said, “led to a situation in which thousands of families are in limbo that doesn’t allow them to carry on with their lives.”

Arnon explained that through the law “the state has resolved, through the Knesset, to solve the problem. The state recognizes that this is not a problem of 4,000 families or more who are in a state of personal distress. The state realizes that without making new arrangements, an increasing number of separate petitions to the courts will lead to mass evacuation of hundreds and thousands of families, which will lead to a major societal crisis.”

Continuing, he said: “The state intends to grab the bull by the horns and solve the problem. This law is not intended to enable expropriation for the benefit of establishing new communities; it doesn’t mean to legitimize actions taken after the bill was enacted. It is meant to solve a unique reality that was created over the years in the context of circumstances prevailing in Judea and Samaria.”

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The justices asked Arnon about a provision in the law permitting land to be declared state land in the event that its presumed Palestinian owners cannot provide proof of ownership within a year.

The plaintiffs argued that this was insufficient time.

“What we are hearing is that the significance of this clause is wholesale expropriation without an opportunity for a thorough examination” said Justice Uzi Fogelman. “It’s difficult for us not to accept the assessment of the attorney general in this matter.” Justice Anat Baron added; “In some respect, this is expropriation without compensation.”

The law permits the state to expropriate Palestinian-owned land on which settlements or settlement outposts were built “in good faith or at the state’s instruction,” and deny the landowners the right to use that land until there is a political resolution of the status of the territories.