All You Wanted to Know About the Legalization Bill


All You Wanted to Know About the Legalization Bill

Written by Ilana Messika/TPS on February 07, 2017

 What is the bill all about?

The bill intends to retroactively legalize housing units built by Israelis on privately-owned land in Judea and Samaria, by empowering the government to retroactively expropriate the land, so as to avoid having to evict the residents and demolish their homes. Due to the lack of clarity of land registration in Judea and Samaria, there are a large number of cases where land that was assumed to be public land, and therefore approved for settlement construction, was subsequently proven to be privately owned land.

The law will apply only in cases where the construction was carried out without prior knowledge that the land was privately owned. In addition, the construction had to have enjoyed implicit (statements or policies encouraging Israelis to build communities there) or explicit (electricity and water infrastructure, Egged bus service, municipal services such as garbage collection, government-funded buildings like ritual baths, etc.) government support. If those conditions are met, and an individual or family establishes ownership of the land, that subsequently turns out not to have been public land, but privately owned land, the law would empower the government to retroactively legalize the settlement, or those parts of it built on such land, by retroactive mandatory expropriation. The landowners would receive compensation 125 percent of the value of the land.

According to Peace Now, the bill would effectively legalize 55 outposts that are currently considered to be in violation of Israeli law, including 797 housing units, built over 3,067 dunams of Palestinian privately-owned land.

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Additionally, the legislation would allow for the legalization of another 3,125 housing units in established settlements (those established with explicit government backing) and the expropriation of 5,014 dunams of privately owned land. Since the bill’s main purpose is to retroactively legalize illegal (under Israeli law) settlements via retroactive mandatory expropriation without due process, it has sometimes been referred to as the Expropriation Bill.

Would the bill violate constitutional law?

Attorney-General Mandelblit  has stated that in his opinion it would, which is why he has refuses to defend the law before the Supreme Court. Most legal experts and jurists agree with his position, although some believe it would not. Although Israel does not have a constitution, it is still subject to the unfulfilled commitment of the National Council to have one. When the State was established, the National Council (Moetzet Ha’am) of the Jewish Community in Palestine was declared to be an interim parliament until elections for the first Knesset could be organized. The Council was mandated to be the country’s Aseifa Mekonenet” (Establishing Assembly) and to prepare a constitution for ratification. This has never happened, but the commitment has never been abrogated, and every Knesset is technically also a continuation of that Aseifa Mekonenet, and will remain so until either this obligation has been met, or the Knesset decides this obligation no longer exists. Such a decision would have major ramifications.  The Declaration of Independence (Megilat Ha’atzmaut) is still technically the basis for the still non-existent constitution, and as such has the legal standing of a constitutional document.

In the absence of a constitution, Israel has a series of  basic laws that are considered to be constitutional legislation based on the Declaration of Independence. It was this legal situation that created the basis for the Supreme Court’s judicial activism.

In addition, the law also violates the basic principle that provides for protection of property rights, and that requires any government expropriation to be subject to due process.

What about international law?

It depends on one’s view of the relevant politics. Since 1967 Israel’s view has been that Judea and Samaria are disputed territories, not occupied, since the 1948 War of Independence ended with an ceasefire agreement rather than a peace treaty. That position was strengthened in 1988 when Jordan’s King Hussein, the occupying power in Judea and Samaria from 1948-67,  formally relinquished claim to the area.

In this view, Israeli communities in the area are justified both because they are legal under the terms of international law and because the lands in question have historic significance for the Jewish people. This view would not undo the normal legal treatment of privately-owned land, so the Legalization Bill stands grant retroactive legitimacy to communities that were unwittingly built on private land and compensating the original owners.

On the other hand, individuals who view Israel’s presence in Judea and Samaria (or as they refer to it, the West Bank ) as an occupation argue that any presence of Israeli civilians is a violation of the Fourth Geneva Convention (Article 49) which stipulates both that “the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand, and also that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

In the latter view, then, the Legalization Bill stands only to formalize Israel’s seizure of property for civilian, rather than military benefit. Detractors say simply that the bill is nothing more than a stamp of approval for theft.

Opponents also argue that the move would constitute both a war crime and a crime against humanity under the terms of several international treaties, including the 2002 Rome Statute of the International Criminal Court, which defines “Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” as a war crime. Apartheid is defined as a crime against humanity,and one of the definitions of apartheid is government sanctioned land seizure without due process based on racial, religious or ethnic criteria. Since the law is a one way street, providing solely for Jewish seizure of Arab owned land, it could be seen as meeting the definition of apartheid.

Notably, Israel is not a signatory to the International Criminal Court, and would likely refuse to recognize the court’s jurisdiction of domestic Israeli policies. But many of Israel’s allies and trading partners are members of the court and see it as an important arm of implementing international justice. Moreover, as we are talking about crimes against humanity, any Israeli connected to the legislating or implementation of apartheid measures would be subject to arrest in any country that is an ICC signatory.

So who supports the bill? What are the arguments in favor? How do they answer the concerns of Mandelblit and others?

Members of the Israeli right and the settlement movement, who ultimately say the issues regarding the legislation are political rather than legal – that opposition to the bill stems from fears that the international community could react to the bill by sanctioning Israel, perhaps strongly, rather than from solid legal analysis.

“Opposition to this law is based on a worldview that views [Judea and Samaria] as occupied territory,” MK Bezalel Smotrich told Army Radio in December. “This bill stands to change long-standing assumptions – namely, that there is no ‘occupation.’  For 30 years, right-wing governments have been elected, taken office and adopted left-wing agendas. This bill is going to change that.”

“First of all , there is a lot of confusion about land ownership issues in Judea and Samaria,” added Eugene Kontorovich, a professor at Northwestern University School of Law, an expert on constitutional and international law and a member of the Kohelet Policy Forum in Jerusalem. Kontorovich said that in nearly all cases, demolishing settlement outposts in favor of Palestinian land owners would have little impact other than displacing Jewish residents because the outposts are largely located inside the municipal boundaries of existing Jewish communities, meaning the original landowners would not be able to move onto the land or build houses there.

“In that case, the government has the right to exert its eminent domain to expropriate the land retroactively and to offer financial compensation to the previous landowners,” Kontorovich told TPS.

Israel already has an Absentee Property Law (Hok Nechsei Nifkadim) on the books. What is the difference between the Legalization Bill and existing legislation? Why not deal with legal issues facing the settlement community with existing legal tools?

There are two answers to this question: One, the 1950 Absentee Property Law stipulates that property belonging to any person who was expelled, fled, or who left the country after 29 November 1947 (the beginning of Israel’s War of Independence), is to be designated as “absentee” and transferred to control of the state. Particularly in the early years of Israel’s independence, the law provided for the wholesale seizure of large areas of what had been privately owned Arab lands and homes by the government, and their subsequent reallocation to Holocaust survivors and Jewish refugees expelled from Arab countries after the establishment of Israel, who immigrated to Israel. Dozens of rural settlements (Kibbutzim and Moshavim) were built on land expropriated under this law, as were some of the country’s development towns.

In contrast, the Legalization Bill proposes confiscating land from owners who are present and accounted for, and in some cases claim to have farmed the land in question up until Israeli caravans arrived on site.  In these cases the bill proposes expropriating the land retroactive to the date of Israeli settlement there, with relevant compensation (mentioned above).

The second reason has to do with the application of Israeli law to areas occupied/liberated (depending on your point of view) during the 1967 Six Day War. While Israel has formally annexed eastern Jerusalem and the Golan Heights, Judea and Samaria is still under military law, as an area under a supposedly temporary military occupation. Since the Legalization Law, (if passed) would mean applying  Israeli law to Judea and Samaria, it would be tantamount to annexation the area without granting the annexed population political rights (residents of east Jerusalem and the Golan have Israeli citizenship, and full political rights).

With additional reporting by Yoni Ariel and Andrew Friedman 


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