Could the Settlement Regulation Bill lead to an international legal battle for Israel?

T. Belman. This article ignores the fact that in many if not most jurisdictions in the West, where a person, in good faith builds on someone else’s land, the owners, once determined, would be forced to receive generous compensation for that part of their lands, affected. That is what the Regulation Law seeks to accomplish. And remember that applies only to privately owned Palestinian lands. Israel also has the right to build on public land.

By: Prof. Amichai Cohen, IDI

The Israeli-Palestinian conflict might be facing a legal escalation. Recent events surrounding the evacuation of the Israeli settlement of Amona have ignited a long-simmering debate within Israeli society regarding the construction of a small portion of settlements on privately-owned Palestinian land in Judea and Samaria.

The Settlement Regulation Bill, which has caused a firestorm of controversy in Israel, is aimed at addressing this issue. It stipulates that no demolition orders will be carried out for a period of one year, during which time efforts shall be made to ascertain the ownership of disputed plots of land. At the end of the period, land found to be privately owned will be expropriated from its owners in exchange for an appropriate financial compensation. Due to strong opposition by legal experts, the version of the bill currently under consideration will not apply to Amona and a small number of similar cases, regarding which a Supreme Court ruling to evacuate already exists.

The Regulation Bill faces some serious legal hurdles. Although the state of Israel asserts a claim of sovereignty over Judea and Samaria, it has never annexed the territories. Successive Israeli governments have sought to avoid conflict with the international community, and sidestep the necessity of giving millions of Palestinian residents of Judea and Samaria full citizenship rights.

As a result of this decision, Israel’s control of Judea and Samaria is not grounded in the Knesset’s civil authority, but rather in the IDF’s military authority. According to international law, as long as the Israeli military controls the area, laws relating to belligerent occupation apply. Since 1967, the Supreme Court has used these laws of belligerent occupation in thousands of rulings to oversee Israel’s actions in Judea and Samaria.

Over the years, most of these rulings did not limit Israel’s policies. The Supreme Court has not forbidden the establishment of Israeli settlements on land that is publicly owned. The high court has allowed the expropriation of privately-owned Palestinian land for security purposes (such as building the separation barrier) and even for public purposes (such as building roads). However, the Supreme Court has never allowed the state to expropriate privately-owned Palestinian land for the sole purpose of establishing an Israeli settlement.
As such, the Regulation Bill creates a slew of legal and political problems for Israel.

First, the international community may interpret legislation by the Israeli Knesset concerning Judea and Samaria as a first step toward annexing those areas, without even considering the grant of full citizenship rights to Palestinian residents of those lands.

Second, by expropriating privately-owned Palestinian land for the purpose of establishing an Israeli settlement, the act undercuts Israel’s claim that the settlements do not deny Palestinians their rights. It also highlights the questionable legality of the Israeli settlement policy itself.

Finally, the expropriation of private land for the purpose of building settlements stands in stark contrast to the interpretation of international law adopted by the Israeli Supreme Court.

In this context, it is worth noting that the prosecutor of the International Criminal Court (ICC) has opened a preliminary examination regarding allegations filed by “Palestine” (which the prosecutor of the ICC has recognized as a state) against Israel. Among other claims, the complaints are directed against the expropriation of privately-owned land for the purpose of establishing settlements. The Regulation Law would increase the chances that the ICC’s prosecutor will view the issue as a serious violation of international law, and opt for opening a full-fledged investigation. Even if at the end of the day no Israeli would be convicted, the mere fact that the ICC has initiated legal action could seriously damage Israel’s legitimacy.

The eviction of people from their homes is certainly a serious, perhaps even cruel, act. However, we expect our decision-makers to take a broad view and consider the far-reaching ramifications of passing this bill. The Regulation Bill, which is opposed by Israel’s Attorney General, reverses decades of Israeli policy making designed to preserve Israel’s legitimacy and the rule of law. The bill undermines the legality of the entire settlement project, and might negatively affect Israeli interests in other areas. Even at this late stage in the legislative process, every effort should be made to find solutions that would not put Israel’s interests and Israelis at such risks.

The writer is the director of the Amnon Lipkin-Shahak Program on National Security and Democracy at the Israel Democracy Institute and a professor of international law at Ono Academic College.

January 20, 2017 | 19 Comments » | 64 views

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19 Comments / 19 Comments

  1. Makes no sense to me. First of all, the pals are mostly descended from illegal immigrants who snuck in during the Mandate period from surrounding countries, particularly Egypt, Jordan and Syria. This is well-documented.


    P. 16 deals with illegal Arab Immigration, specifically

    and Joan Peters, “From Time Immemorial”

    Second of all, many countries do not allow legal immigrants to pass citizenship on to their offspring, forget about illegal immigrants.

    There are only 30 countries that grant citizenship upon birth:

    Jus soli – Wikipedia
    Jus soli (English pronunciation: /d??s ?so?la?/; Latin pronunciation: [ju?s ?s?.li?]), meaning ‘right of the soil’, commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship.

    Jus sanguinis – Wikipedia
    Jus sanguinis (Latin: right of blood) is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state.

    It varies from country to country. These are not assumed rights.

    So, there can’t possible be an international law about it. Can there? The International Community irrevocably designated all of Israel then Palestine, including all of Judea and Samaria, for close Jewish Settlement and ultimately statehood. Non-Jews, those resident at that time (the early 1920’s) — in other words, not including the subsequent wave of illegals — were only granted individual civil and religious rights, but explicitly not national rights. I see no reason to give them citizenship or voting rights. I see no reason not to extend Israeli sovereignty throughout, while only giving citizenship and voting rights to Jews. See Stephen Plaut’s proposal:

    I think it is legal and workable and will solve all these problems:

    Or, in principle, if Israel affirms its sovereignty as of 1920, any Pal not there since that time, is therefore an illegal immigrant and it should be legal to deport them back to Syria, Egypt, Saudi Arabia, or wherever they came from. They acknowledge this themselves. They don’t lie to each other.

    If they claim refugee status going generations back based on the illegal and unique UN resolution designating a Palestinian refugee the descendant of any arab who lived in “Palestine” for at least two years before 1948, then legally this should be a two-edged sword. If their ancestors are designated illegal immigrants who it would therefore be legal to deport then it should be equally legal under the same principle to deport all of their descendants back to their countries of most recent ancestral origin (which is what they want to do to us, that or kill us.)

  2. @ Sebastien Zorn:

    The Arab countries do not grant citizenship to the generations of pals living there. No reason they couldn’t grant citizenship to otherwise stateless arabs allowed to reside in post-annexation Yesha. No legal basis for them to demand Israel does what they won’t or for the international community to enforce such an outrageously racist, anti-semitic double standard, or for Israel to pay them any mind if they do.


  3. @ Sebastien Zorn:
    I tend to agree with you, they had civil and religious rights. Now it remains to see what “civil rights” includes. It specifically excluded sovereign rights and from that surely flows the denial of voting rights and citizenship rights.

    Still when you’re dealing with a bunch of Jewish/Israeli bean-heads, you never know what silly benevolence they will arrive at. They do this even in the shadow of defeat. The legal system in Israel is only praised by the International Community, because it’s harder on the Jewish citizens than their own laws would be. But it’s a morass of “whereases”… Only the Jews would be content with a goulash of Ottoman, British, Emergency, and Israeli Law all put to boil in the same pot…..

    Remember how Ben Gurion, Rabin, Dayan, and others justified the murder of the 17 Jews on the Altalena….. and how they previously had set the British on against the Irgun, even catching them to hand over for internment camps in foreign lands….) I mentioned once before here, that an old girl friend came back from a long stay in Israel in the 1950s and said that there was nothing too dirty for the Jews in Israel to do….

    {{ Yet, I went on Aliya myself, my fiance also, we married and had our children in Israel, (how I got back the original documents from the Rabonim needed violent threats) and stuck it put for near 14 years, not needing work yet….. ending in breaking into our apartment when we were away, and destroying all our possessions, indeed everything except the walls. The whole apartment block (25 units) heard the noise (300 12″vinyl records being broken in half etc) but neither reported nor said anything……. My lovely car and travel trailer were smashed beyond repair…… THAT was when we decided to leave with our 4 Israeli children….}}

  4. Appropriating so-called Palestinian land for the sake of settling the land should have the same din as building the security barrier did. We know we have legal rights. I’m not a lawyer but the concept of eminent domain comes to mind when it comes to creating and supporting settlement construction to promote Jewish presence in J & S. It is a long term security imperative besides being our right. To give in to that out of some fear of international repercussions is to set a bad precedent. Our policy should just be driven by our own rights, imperatives and interests. The Palestinians have been using a phased, foot-in-the-door approach to appropriating land for years. We should do the same. This, especially with an new American administration coming into power, should be our strategy- create facts on the ground and use money to incentivize the Arabs to leave.

  5. @ Edgar G.:
    Good point. I googled: civil rights oxford english definition 1920 and got: “The rights of citizens to political and social freedom and equality.” So, the burden of proof could be placed on those arabs who could prove that they were already there in 1920. Not their descendants. Here’s hoping all these 97+ – year-old arabs have their papers in order.

  6. @ David:
    Yes, in fact this is the most current interpretation of eminent domain in the U.S.:

    “Kelo v. City of New London, 545 U.S. 469 (2005)[1] was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment.
    The case arose in the context of condemnation by the city of New London, Connecticut, of privately owned real property, so that it could be used as part of a “comprehensive redevelopment plan.” However, the private developer was unable to obtain financing and abandoned the redevelopment project, leaving the land as an undeveloped empty lot.[2]”

    Though that’s not how it was done up until now, anti-semitic canards, notwithstanding.

  7. It’s time Israel grew up and defined it’s own laws. Hiding behind Turkish, British mandate and Jordanian laws not to speak of martial law for the last 50 years is simply too much. Write your own laws and stick to them. Yes they should be just, no, they should not be weighted towards the Arab population.

    As many people have already stated on this website, they are just as free as Jews to pack up and leave.

    And while we’re on the subject, the land laws within Israel could use some cleaning too…

  8. Sebastien Zorn Said:

    arabs who could prove that they were already there in 1920.

    I would be sure that none is still alive…in fact there have been several mentions in this venue that even of the hundreds of thousands of illegal Arab parasites who poured into Israel after 1947, “claiming” to UNWRA that they were there between 1946 and 1948, it has been reliably asserted that no more than 25-30,000 people were yet living about 2-3 years ago). So today it would be a maximum of about 25,000.

  9. Sebastien Zorn Said:

    arabs who could prove that they were already there in 1920

    And an addition, any documents that they have, are almost certainly fake. I myself have has personal experience when living in Israel, asked to help a local Arab who’d been called to the Land Registry to show his documents. This man had regaled me with stories of his family having settled shortly after the Crusades etc.etc. To shorten the story. His document was proven fake at the meeting right under my eyes, and on the way home he confessed that they had just walked across the Jordan 5 years before with a tent and goats, and moved into an abandoned Turkish large 2-3 roomed building in their little valley.

    They had so much stuff scattered around, and so much work done in crop-planting hillside ledges, and a multi-stream diverted water trickle etc, with tiny earth dams etc, that his story was believable…until the visit to Akko… I recall they had a huge photo of Arafat on the wall……..

  10. @ dreuveni:
    I don’t know how much of it is just adhering to international law and how much is our own cultural idiosyncracy of turning practical expedients into precedents for all time carved into stone. I am a pescaterian from a secular Jewish background, so I eat fish but not meat (like a lot of “vegetarians,” it’s easier to say vegetarian than explain) I was playing an ultra-orthodox event with lots of food, all meat, except for coleslaw which I filled up on. I said to the leader of the group, who was quite scholarly, why can’t don’t they have any fish? I mean you’re just not supposed to mix meat and dairy, right? He explained that there was a particular situation centuries ago, where something happened where it became treif to eat the fish with the meat — I forget the details — and ever since then, it’s just not done.

  11. Prof. Cohn’s article is another lecture is self-defeat for Israel. Advising that action should NOT be taken because some elements of the international community might object is stupid – – – they will always object.

    Israel should abandon its current very centralized, controlled building process and adopt the methods and procedures now used throughout the United States..

    What t Israel does now is have multiple approval announcements and no actual building action. However, each announcement serves as a lightning rod which then triggers major condemnations.

    Israel should make all public West Bank lands available for sale and/or long-term lease.

    Then it would be appropriate for Israel to establish building standards such as for electrical work, plumbing, etc.

    However, local entities [communities] would be responsible for zoning. Then, if an applicant met both the building standards and the zoning requirements the permit can and should be issued immediately by the local authority.

    For privately owned land on the West Bank there should be an annual tax. If it is not paid for three years then a foreclosure lien should be filed against the property and the property, after adequate notice, should be sold to pay the tax. That way shadow Palestinian owners would either have to come forward or have their Jordanian granted ownership superseded.

    Israel needs a housing boom to lower the cost of living for the middle class. Private building in settlements [townships] adjacent to Israel should be encouraged at the maximum rate.

    As long as Israel, or elements in Israel ,attempt to placate the international community there will always be an outcry. It is a loser’s game

    If Israel decentralizes its construction decisions and frees-up land for building it will encourage an economic boom, lower housing costs and promote social cohesiveness.

  12. @ Sebastien Zorn:

    Yes, I recall reading that myself years ago, and also 2 books of Begin’s… that Rabin was in command of the troops who fired on the struggling Jews in the water. I have a book describing the whole matter and also the 2 books that Begin authored….and don’t forget the fighting and casualties at Kfar Vitkin…Long forgotten ablut today it was a disgusting action. Kfar Vitkin, the Altalena and the “Saison” have burnt themselves into my mind forever, and I excoriated Ben Gurion and his cronies ever afterwards. He reminded me exactly of the tough hard, pitiless, relentless secular Jews who came from Russia made great gangsters and skinflint evicting moneylender types.

    I was a follower of Menachem Begin already, but much more from that time on, and admired his restraint about firing on fellow Jews so much. No Jew should ever do such a thing, in fact I’ve always been totally against Jews fighting each other in the Courts of the Goyim, that they should ALWAYS go to a Bet Din…… Jews are, or should be, like a large family, we have only ourselves ULTIMATELY, to rely on.

  13. @ Sebastien Zorn:

    Yes it could and would. The Arabs can put uip a house in a matter of weeks, by using all their families and friends. The very same house, when they are working for Israeli companies can take a couple of year. I’ve actually seen this with my own eyes over the years, and had it explained to me by Arabs.

  14. xxx

    Why cannot The High Court reverse its decisions pending the imminent passing of the Bill. Why should there be such an irreversible rush to demolish the Amona and other homes, as if the decisions were sliding down like an avelanche.

    From what we see over the years, there is a lot of slipperiness in Israeli Law and the carrying out of it’s decisions……….. The court could easily reverse itself because of new evidence and the Bill. ….if it wanted to…..

    Maybe they don’t want to send back their advance payments for the job……

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