A child places a Palestinian flag on a protest tent against the demolition of the village of Susiya.
(photo credit: Courtesy)
Seventeen Palestinian municipalities impacted by the recently passed Settlements Law petitioned to the High Court of Justice on Wednesday to strike the law as unconstitutional and to immediately freeze its implementation pending a final ruling on its constitutionality.
“The law eliminates the basic rights of the Palestinian residents of the West Bank and leaves them with no legal protections by permitting the pilfering of their private property for the benefit of Israeli settlers in the West Bank on the basis of an ethnically-inspired ideological worldview,” said the petition, filed by Adalah, the Al-Mezan Center for Human Rights and the Jerusalem Center for Human Rights.
The NGOs wrote that the law violates both the international law of belligerent occupation, including the obligations that Israel has to protect Palestinian rights as long as it manages the West Bank, as well as Israel’s own Basic Law of Human Dignity and Freedom.
They argued that the new law not only violates the Palestinians’ constitutional rights to property, but also their basic right to dignity by actualizing the principle that their rights are secondary to the rights of Jewish settlers.
Knesset passes settlement bill on February 6, 2017 (credit: REUTERS)
In that spirit, the petition claims that the law violates the international convention on apartheid, Israeli court decisions obligating Israel to abide by the Hague regulations and the humanitarian provisions of the Fourth Geneva Conventions and the 2004 International Court of Justice opinion about international law in the West Bank.
Possibly the strongest allegation is that implementing the law falls under the International Criminal Court war crime of Article 8(2)(b)VIII of the Rome Statute of population transfer.
More specifically, the petition quotes Article 46 of the Hague regulations which states that “private property cannot be confiscated” from a land being managed by the rules of belligerent occupation.
The petition even quotes a case from the Nuremberg trials against confiscating land being legal if compensation is paid – which the law’s defenders have cited as a basis for its legality.
Adalah and the other NGOs said the law’s purpose was also so clearly unconstitutional under domestic Israeli law that it did not even need to address whether its means of implementation were proportional – another aspect of the test for a law’s constitutionality.
The petition quoted several statements by the office of the attorney-general that said that the only legal basis for Israel to appropriate private Palestinian land was for military necessity and that the law goes directly against this principle, making it an illegal law.
Quoting the attorney-general’s office further, the petition says the law is trying to legalize “after-the-fact illegal Israeli buildings on private Palestinian land. According to international law, a state is prohibited from imposing its laws on land which is beyond its territory… the law contradicts the obligation of the IDF Commander to protect the property rights” of Palestinians in the West Bank.
More specifically the attorney-general’s office had objected to having the Civil Administration “seize Palestinian property without proper seizure proceedings which are consistent with law…The seizure is for the purpose of legalizing actions which themselves were illegal from the start.”
Also, the petition presents the attorney-general’s argument that the IDF Commander, not the Knesset, decides land issues in the West Bank, noting that he is bound by international law.
Taking aim at land law issues, the petition argues that the new law pays lip service to standard land law, but does so by creating a fictional legal framework of changing certain lands’ legal status over 6-12 months - which in practice can only lead to illegal seizure of Palestinian lands.
It says that while the law claims it is only giving possession and use of the private Palestinian land in question to Jewish settlers pending a final resolution of the status of the West Bank, since there is no deadline or horizon for such a resolution, it is essentially permanent seizure of the land. The law allows Jewish settlers to remain on privately owned Palestinian land if the settlers on good faith built on that land, not knowing it was private, or if the state indirectly agreed to them building on that land.
The NGOs say that the petition fails to define “good faith," and they highlight that this lack of definition betrays the backstory to the new law, in which they say most settlers were intentionally illegally building on Palestinian lands in order to expand the Jewish footprint in the West Bank.
Further, the petition says that the law gives an overly broad definition of what qualifies as “agreement of the state” – as in that the state indirectly consented to certain Jewish settlements, even if it did not formally endorse them.
According to the law, any signs of agreement from the state can function as an endorsement leading to Jewish settlements being legalized – a formulation opposed by the attorney-general.
A range of international condemnations of the new law by UN Secretary General Antonio Guterres, the EU and the US are also included in the petition as a sign that it is against international law.
The petition includes a list of 16 settlements and the corresponding Palestinian villages which it said are being harmed by those settlements' buildings as well as aerial photographs of some of the areas in dispute.
Other similar petitions are expected to be filed next week or in the near future by a range of NGOs.