Knesset legal team to court: Israel can selectively legislate for West Bank

The court is adjudicating the constitutionality of legislation that could authorize up to 4,000 illegal settler homes on private Palestinian property in exchange for compensation to the landowners.

Settlements  (photo credit: BAZ RATNER)
(photo credit: BAZ RATNER)
The Knesset can legislate for the West Bank in certain cases, even though it is standard practice not to do so, its legal advisers told the High Court of Justice on Tuesday, as they threw their support behind the Settlements Regulation Law.
The court is adjudicating the constitutionality of the legislation, which could likely authorize up to 4,000 illegal settler homes on private Palestinian property in exchange for compensation to the landowners.
“There would be no need for such a law if there was a normal property dispute,” the Knesset’s chief legal adviser Eyal Yinon and legal assistant Avital Sompolinsky told the court in a 20-page brief.
The law touches on the issue of the status of Judea and Samaria and the state’s conduct within that region, which “concerns the most sensitive aspects of the diplomatic and political dispute regarding territory in Judea and Samaria,” they wrote.
“The topic of sovereignty and land ownership in Judea and Samaria is a charged issue which lies at the heart of the Israeli-Palestinian conflict and has been at the core of the Israeli public debate for past 50 years.”
Opponents of the legislation include a consortium of 13 nongovernmental organizations that petitioned the court, arguing that the Knesset has no legislative purview over the territory of Area C of the West Bank.
The application of Israeli law in a region under IDF military and civil control is tantamount to de facto annexation, the NGOs argued.
Yinon and Sompolinsky noted in their briefs that until now, the Knesset and the government have held that Israel’s parliament does not legislate for Area C, where all the Israeli settlements are located.
The Settlements Regulation Law “is unique within the landscape of Israeli legislation,” the brief said. “It’s unconventional because the Knesset has issued territorial legislation for Judea and Samaria.”
But such a law is necessary in this case because no other legal tools exist by which to authorize the homes.
The scope of the law is extremely limited and only applies to homes that are already built. It cannot be applied to illegal homes that would be built in the future, the legal advisers wrote. Further, it only authorizes homes built with government support and in good faith.
At present, the Palestinians have no option for compensation.
Neither can they access their property, even in situations where the Civil Administration has razed the illegal settler homes. Moreover, the land expropriation is not permanent and is only until such a time as there is a resolution of the Israeli-Palestinian conflict, the brief stated.
The law is also applicable to illegal Palestinian building on private priority in Area C, the legal advisers wrote. It “applies to all settlement [building in Area C] and does not distinguish between Israeli settlement and Palestinian settlement.
The brief asked the High Court of Justice to reject the NGO petition and uphold the law. It also voiced support of the government’s legal brief, which defended the legislation’s legality as well, including the right of the Knesset to pass laws for Judea and Samara.
In an unusual move, the government brief submitted in August was authored by a private attorney, legal expert Harel Arnon.
Attorney-General Avichai Mandelblit would might typically have defended the legislation, has refused to do so, arguing that it is illegal. He is expected to submit an opinion to the court next month.