AG: Knesset can't seize Palestinian land for settler homes

According to the Attorney General, the provisions of the law infringe on the right to private property that is protected by Israel’s basic law of human dignity and liberty.

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November 23, 2017 05:14
4 minute read.
Israeli pedestrians stand on a roadside near the West Bank Jewish settlement of Efrat

Israeli pedestrians stand on a roadside near the West Bank Jewish settlement of Efrat. (photo credit: AMIR COHEN - REUTERS)

 
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The Knesset’s Settlements Regulation Law is 'harmful to' and 'seriously discriminatory' against Palestinians, Attorney-General Avichai Mandelblit told the High Court of Justice on Wednesday.

He issued a harsh attack against legislation the Knesset passed in February that authorized illegal settler homes built on private Palestinian property in exchange for monetary compensation for the landowners.

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“There is no escape from a judicial declaration that the [Settlement Regulation] Law is an unconstitutional regulation and should be made null and void,” Mandelblit said in a 62-page brief he submitted to the court.

“It’s a sweeping harmful order” that is disproportional and gives absolute preference to the rights and interests of the settlers over the property rights of the landowners, he said. Its execution would lead to “total discrimination against the Palestinian population.”

The provisions of the law infringe on the right to private property that is protected by Basic Law: Human Dignity and Liberty, Mandelblit said.

The Settlements Regulation Law was designed to save close to 4,000 illegal settler homes built on private property, many of them in established settlements, by providing an avenue to legalize them.

Mandelblit said he sympathized with the desire to save the homes of people who had innocently not understood the structures were illegal.



The law as it is currently designed is too broad and includes cases where it was clear to the homeowners that the construction was illegal, including recent instances.

Since 1967 successive Israeli government have determined that the West Bank is under Israeli military rule and international laws of belligerent occupation. As a result the Knesset does not legislate for the West Bank, save for personal laws that apply to citizens. The application of the Settlement Law to the Area C of the West Bank is problematic because it applies not just to Israelis, but also to Palestinians who do have voting rights, Mandelblit explained.

But he did not totally dismiss the possibility that private Palestinian property could be expropriated with compensation for the use of Israelis, because setters living there could also be considered the local population. Nor did he rule out the possibility that Knesset laws that deal with property could apply to the West Bank. In so doing he lent his legal voice to two central principles necessary for the court's acceptance of the law. Mandelblit based his argument against the law largely on flaws within the legislation with respect to private property rights and Israel's basic laws. The Attorney General’s sudden shift from a principled point of a law to a technical one, did not go unnoticed by those involved in the case.

Private attorney Harel Arnon, who represents the government before the court instead of Mandelblit, said, "I am happy to learn that the Attorney General rejected almost all the petitioners claims and confirmed that the Knesset can legislate in Judea and Samaria." His reading of the Attorney General's brief is that the Israeli population is considered local and the statute does not violate international law.

Mandelblit's only substantial argument, he said, is the lack of proportionality, Arnon said. The consortium of 13 nongovernmental left-wing groups, including Peace Now, Yesh Din and the Association of Civil Rights in Israel, who had petitioned the court against the law also weighed in.

They thanked Mandelblit for backing their position that the legislation tramples on the rights of Palestinians. But they said they are concerned by other steps Mandelblit is taking.

“Despite his clear opposition to the Expropriation Law, the attorney-general has been working to legalize expropriations through other means.

“During the past two weeks, the attorney-general published two legal opinions that retroactively legalize the expropriation of private Palestinian land for the benefit of settlements only – in clear violation of international humanitarian law, which applies in the West Bank,” the NGOs said.

“While the Expropriation Law is meant to sweepingly legalize all settlement structures built on private Palestinian land, the attorney-general proposes more specific alternatives,” the NGOs said.

“However, there is no legal way to permit expropriation of private lands of a population living under occupation,” the NGOs said.

Meretz Party head Zehava Gal-On immediately lauded Mandelblit, not just for his legal interpretation but for his courage in taking a stand against the Knesset, the government and Prime Minister Benjamin Netanyahu, all of whom backed the legislation.

“This is a law that sanctions land theft,” Gal-On said. “It is designed to award a prize for political delinquency and to lawbreakers. It is good and important to see that the state’s legal adviser has decided to stand up against this dangerous law.”

Fifteen families from the Netiv Ha’avot outpost, whose homes will be demolished in March on orders of the high court, also issued a response.

They want to know what other options are out there to legalize their homes and why those options are not being pursued.

MK Shuli Moalem-Refaeli (Bayit Yehudi) said that the legislation is designed to resolve one of the core issues facing the settlement movement in Judea and Samaria.

She said she regrets that Mandelblit did not respect the work done by the legislature, which had invested many hours in drafting and passing the law.

Should the High Court of Justice repeal the law, legislators would have no choice but to amend the country’s basic laws, to protect the legislative process against the courts.

“The absurdity in which the High Court of Justice has become a tool for the Palestinians and their accomplices in extreme leftist organizations must be stopped,” she said.

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