YOUNG PROTESTERS sit in a caravan singing and resting as they wait to be evacuated by police officers from the illegal outpost in Amona..
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
The Knesset passing the settlement regulation law is the first attempt by the legislative branch to provide a new legal framework for deciding questions of land ownership and land use in Area C of Judea and Samaria. Since this area is under IDF military occupation, the judicial authority is the Office of the Military Advocate-General (Praklitut Hatzva’it) and the Civil Administration (Minhal Ezrachi).
The settlement regulation law adds a dimension to the decision-making process that represents the democratic institution of the state. Rather than rely only what the military administration decides, the Knesset now has a voice. Moreover, the High Court of Justice, which has relied only on IDF legal advisers, will now have to include the will of the people, via its elected representatives.
The settlement regulation law asserts that the same law which allows the government to confiscate private property for the benefit of the public and the interests of the state in areas in Israel will be applied to areas under Israeli control in Judea and Samaria. Those who claim land and can prove ownership will be fully compensated.
Appeals against the law will be brought before the High Court, and the parliamentary discourse will have to give its place to the legal one. We still don’t know who will represent the government in court, but the justifications and the arguments for the necessity of the settlement regulation law are clear: Israeli citizens living in Judea and Samaria have the same rights as those living in Tel Aviv and Haifa.
This was the conclusion of a commission appointed by Prime Minister Netanyahu several years ago headed by retired High Court justice Edmund Levy and legal experts. The 2012 Levy Report validated Israel’s legal claims to the area and recommended specific judicial remedies to decide questions of land ownership.
The settlement regulation law counteracts the accusation – often promoted by the BDS campaign against Israel – that “Jews are stealing Palestinian land.” The law regulates land ownership and allows for expropriating land for public needs and to establish communities where necessary – an accepted practice in Israel and all over the world.
In Judea and Samaria, the settlement regulation law is forced to address yet another problem, perhaps the main one: According to Palestinian Authority law (which follows Jordanian law), selling land to a Jew is a capital crime. This prevents a free land market from operating. Decriminalizing selling land will benefit both Jews and Arabs. It is the duty of the State of Israel to protect both landowners and buyers.
Although the international community asserts that settlements violate international law, the official position of the State of Israel has been to consistently reject this notion and has not prevented the Knesset from enacting laws or expropriating land in the territories captured in 1967, or applying Israeli law in Jerusalem and the Golan Heights. The settlement regulation law simply extends the same jurisdiction to Area C of Judea and Samaria.
The struggle for Israel’s rights as a sovereign state is the battleground that the settlement regulation law has entered. The IDF judicial administration and the High Court of Justice will likely oppose any changes in the current system and this will, no doubt, create a confrontation over basic issues of who should govern, and by what rules; it also raises fundamental issues about the nature of Israeli democracy.
Although difficult, this process should be welcomed; it is what democracy is all about.
Simcha D. Rothman is a lawyer practicing private and public law and is the legal adviser for The Israeli Movement for Governability and Democracy (Meshilut). Meshilut aims to restore the position of the judicial system and civil servants so they befit a democracy, through research, advocacy, public awareness and litigation.