Despite what seemed like a change of direction from the Trump administration on settlements, the Israeli Knesset just passed the Settlement Regularization Law, which aims to “legalize” illegal settlements in the West Bank. 60 MKs voted in favor of the law and 52 voted against. Prime Minister Benjamin Netanyahu did not make it back from his visit to London in time for the vote. In deciding to move forward with the vote, the government defied Israeli Attorney General Avichai Mandelblit, who has concluded that the law is unconstitutional and inconsistent with Israel’s obligations under international law. Mandelblit had already notified the government that he will not defend the law in court.
Several developments appear to have motivated the legislation at the present time.
First, late last week the Israeli government executed a Supreme Court order to demolish the Amona outpost, which was built illegally on privately-owned Palestinian land. Efforts by the government to avoid forceful evacuation had collapsed. In the months prior to the evacuation, the government worked out an agreement with the residents of Amona to find an alternative site for the outpost, close to its original location. Based on that agreement, the Supreme Court granted the government a last-minute 45-day continuance to peacefully evacuate the outpost, after demanding—and receiving—a written unconditional commitment from the residents to evacuate by February 8, 2017. Since then, the residents of Amona backtracked on their commitment to evacuate peacefully, forcing the hand of the government to proceed with the evacuation. The Supreme Court struck down major components of the agreement, as it turned out that parcels of land in the designated new location for Amona might also be privately owned by Palestinians. Adding to the crisis, February 8 was the court-ordered deadline for the evacuation of nine structures in another settlement, Ofra. The Supreme Court granted the residents a brief one-month continuance on Sunday to allow them to find alternative housing.
The Regularization Law does not overturn the Ofra court order, nor can it re-build Amona. Nevertheless, the law is widely viewed as compensation offered by the government to the settlers to offset the politically damaging evacuations.
Second, Prime Minister Netanyahu green-lighted the Regularization Law last week after stalling for months. The law drew heavy international criticism after it passed the first reading in the Knesset plenum in early December. The Obama administration cited the law as one of the reasons for its decision to abstain in the Security Council vote on resolution 2334, condemning Israeli settlements (analysis here). Prime Minister Netanyahu, who excoriated the Obama administration for allowing the resolution, nevertheless feared that provocations over settlements would lead to further diplomatic retribution. He did not advance the law while President Obama was in office.
We are in a different world now. The weeks since the inauguration of President Trump have seen a flurry of activity concerning settlements, including the lifting of restrictions on construction in East Jerusalem and the West Bank, discussion about legislation that would extend Israel’s jurisdiction to Ma’ale Adumim, a city close to Jerusalem located outside the 67’ lines, and plans to authorize a new West Bank settlement.
All these moves were seemingly based on an assumption of the Israeli right that the Trump administration, and its designated ambassador to Israel, will take a different approach on the two-state solution and on settlements than previous administrations (see also here, in Hebrew). This put pressure on Prime Minister Netanyahu to be more aggressive on settlements. Then came the White House statement on settlements, which coincided with King Abdullah II of Jordan’s visit to Washington. The statement sounded a lot closer to the traditional U.S. position:
The American desire for peace between the Israelis and the Palestinians has remained unchanged for 50 years. While we don’t believe the existence of settlements is an impediment to peace, the construction of new settlements or the expansion of existing settlements beyond their current borders may not be helpful in achieving that goal. As the President has expressed many times, he hopes to achieve peace throughout the Middle East region. The Trump administration has not taken an official position on settlement activity and looks forward to continuing discussions, including with Prime Minister Netanyahu when he visits with President Trump later this month.
That apparently was not enough to halt the progress of the Regularization Law.
Next Stop—The Supreme Court?
The key provisions of the final version* of the Regularization Law are as follows:
- Article 3 of the law empowers the military commander in the West Bank to expropriate privately owned land on which a settlement is located, provided that the settlement had been constructed with the State’s consent or in good faith. If a settlement that satisfies these conditions is located on land that does not have a private owner, that land will be registered as public land. The law only applies to existing construction.
- State consent is defined broadly: it can be given ex-ante or ex-post, explicitly or implicitly. Merely providing a settlement with services or funding qualifies as consent under the law. “The State” is also broadly defined not only as the Israeli government, but also local authorities, the military commander in the West Bank, and organizations like the Jewish Agency for Israel.
- Article 4 of the law provides that the expropriation of privately owned land according to article 3 will take place within six months of the law’s publication. It will remain in force pending a “political determination regarding the status of the territories and the settlements therein” (article 3(2)(b), my translation). Land covered by article 3 that does not have an owner will be listed as public land within one year of the law’s publication. In both cases, the usage rights in the land will then be allocated to the settlements.
- The registered owners of the expropriated land and other right-holders would either receive compensation (125% of the value of land usage rights per annum) or an equivalent lot in a different location.
- The Regularization Law suspends all pending planning and construction enforcement proceedings pertaining to the settlements it covers. In addition, it requires the government to complete the necessary procedures under the applicable planning and construction laws, and (retroactively) issue permits for the settlements in question as soon as possible. It does not, however, apply to structures the Supreme Court has already ordered to demolish.
- The addendum to the law specifically lists 16 settlements that will enjoy a year long “enforcement freeze” pending a determination as to whether they satisfy the conditions set out in article 3 (the first-reading version only listed three settlements). The Minister of Justice can expand that list with the consent of a parliamentary committee.
While the core of the final version of the law has largely remained unchanged compared to the first-reading version, they are not identical. It appears that the law was tweaked during parliamentary deliberations to make it more presentable. For instance, in contrast to the first-reading version, the final version of the law omits all references to “Israeli” settlements that appeared in the earlier versions, instead simply referring to “settlements.” This omission was probably designed to make the law seem facially neutral, although the fact that all 16 settlements enumerated in the addendum are Israeli settlements, together with the legislative background, would undermine any claims of facial neutrality. Interestingly, the law also avoids the legal term for “expropriation” in Hebrew, perhaps to create the impression that the reallocation of land usage rights under the law would only be temporary.
In addition, the final version circumscribes the military commander’s expropriation authority. It requires that the value of the investment in the construction of the settlement for which the expropriation is made be higher than the value of the land at the time of construction. Moreover, article 3(2)(b) provides that to the extent possible, expropriations should be made in accordance with local law, insofar as it does not contradict the Regularization Law.
The final version of the law also adds some procedural safeguards that did not appear in the earlier version. It provides that right holders whose land will be expropriated according to the law will be able to contest decisions regarding compensation before a special committee. Importantly, however, it seems that right holders will not be able to challenge the act of expropriation itself before the committee.
Those changes notwithstanding, there are many reasons to expect that the law will not survive a constitutional challenge in the Supreme Court of Israel. In a previous post, I previewed the legal issues that the Supreme Court would likely have to address when the law is challenged in Court, and explained the legal significance of the Attorney General’s position. Over at Just Security, Yael Ronen and Yuval Shany weighed in on the international law aspects (responding to Eugene Kontorovich). I will not repeat the analysis here. In a nutshell, the Regularization Law presents the Supreme Court with novel legal questions. It is a unique case of Knesset legislation that aims to directly regulate property rights over land outside of Israel’s jurisdiction. Questions arise as to the application of both Israeli constitutional doctrine and customary international law in these circumstances. That being said, it is likely that the court would find that the law violates the property rights of Palestinians in a manner that is inconsistent with Israeli constitutional doctrine. Moreover, the law flies in the face of the Supreme Court’s longstanding interpretation of international law, which prohibits construction of civilian Israeli settlements on privately-owned Palestinian land absent a military purpose.
There is virtually a consensus within the Israeli legal establishment, led by the Attorney General, that the Regularization Law is indefensible from a constitutional standpoint, that it violates Israel’s obligations under international law, and that it increases the likelihood of a full fledged ICC investigation into Israel’s settlement activity. A leaked classified meeting protocol of the special Knesset committee established to work on the law documents some of the powerful legal objections voiced by senior legal advisers from the Justice and Defense ministries. Although it appears that the legal adviser to the Knesset will argue the case, and that the government might retain private counsel to represent its position, the weight of those legal objections would make it easier for the Court to strike the law down—and face the political backlash.
*An official version of the Law was not yet available at the time of writing. The analysis is based on the version presented to the Knesset for the second and third reading. The post will be updated if necessary.