Israel to High Court: Law Seizing Palestinian Land Is Humane Response to 'Distress' of Thousands of Settlers

Private lawyer representing the state says expropriation of Palestinian lands in West Bank is constitutional under both Israeli and international law

Yotam Berger
Yotam Berger
The unauthorized outpost of Mitzpeh Kramim. Israel says the expropriation law would help residents there with construction.
The unauthorized outpost of Mitzpeh Kramim. Israel says the expropriation law would help residents there with construction.Credit: Michal Fattal
Yotam Berger
Yotam Berger

The state on Monday asked the High Court of Justice to reject legal challenges to a controversial law that would allow for the retroactive expropriation of land owned by Palestinians in West Bank settlements. It called the law “a humane, proportional and reasonable response to the genuine distress of Israeli residents.”

In seeking to persuade the court to reject the legal challenges – filed by Palestinian and Israeli human rights organizations – the state argued that the “practical alternative” to the law is the maintenance of the existing situation, which the state said is disruptive to the lives of “hundreds of families” in settlements, including families who built homes based on representations by government authorities that it was permissible.

The state added that the law is constitutional under Israeli law and also meets the requirements of international law.

Subject to specific provisions, the law allows Jewish settlers to remain in homes built on privately owned Palestinian land, even though it does not grant them ownership of the land. It also denies the Palestinian owners the right to claim the land or take possession of it “until there is a diplomatic resolution of the status of the territories.”

The state’s response was prepared by Harel Arnon, a private lawyer retained by the government after Attorney General Avichai Mendelblit refused to represent it, saying the legislation was not constitutional. Prior to its passage, he also tried to halt the legislative process.

Implementation of the law had been informally suspended following the legal challenge. However, at Mendelblit’s request, the court made the suspension official on Monday through a court order. This will remain in effect until the court makes its ruling.

The law also provides a mechanism for compensating Palestinians whose lands are seized: A landowner can receive an annual usage payment of 125 percent of the land’s value as determined by an assessment committee, or an alternate plot of land if this is possible – whichever the Palestinian landowner chooses.

The state said the law addressed “a reality in which the owners of the land are not benefiting from their rights, particularly a reality that time after time has been polarizing and tearing Israeli society apart, and severely harming public trust and institutions of government.”

The state called the current situation “a national problem.”

It also noted a number of cases in which it said residents would benefit from the law if it is found constitutional, including construction at the unauthorized outpost of Mitzpeh Kramim and a number of buildings in the settlement of Ofra.

The state’s response included data from the Israeli Civil Administration in the West Bank, detailing the numbers of orders issued against illegal settlement construction on privately owned Palestinian land.

It said that between 2012 and 2016, orders were issued against 285 illegally built structures; between 2007 and 2011, orders were issued in connection with 251 structures; and between 2002 and 2006, more than 450 orders were issued. Between 1992 and 1996, however, the figure was only 20.

In conclusion, the state said that although there are many issues that prompted the legal challenges to the law requiring thorough consideration, ultimately the petitioners are making “much ado about nothing.”

The law, the state said, does not run counter to any precedent or legal principle, and instead is meant to deal with a unique and complex situation that at times has led to demolitions that benefited no one – a situation that places hundreds of families under “a cloud of uncertainty.”

In response, the organizations Yesh Din, Peace Now and the Association for Civil Rights in Israel – which are some of the petitioners in the case – responded: “The State of Israel, in its response today, is trying to present the land expropriation law as addressing a national problem, when in practice it involves continued government support for a criminal enterprise that has continued for decades.

“The government is minimizing the continuing harm to the rights of the Palestinian landowners, and at the same time is trying to present the Israeli citizens who are taking part in the looting of West Bank Palestinians as people who have been harmed and who require ‘compensation’ for their part in the looting,” they added. “We hope the court rejects the state’s arguments out of hand, strikes down this unconstitutional and immoral law, and sends a loud and clear message: No more.”

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