True Significance of Israel’s Settlement Legalization law
By Haviv Rettig Gur
Times of Israel
February 7, 2017
Criticism of the Regulation Law that passed
Monday in the Knesset has been visceral and widespread. It comes from
Israeli politicians on the right, as well as on the deepest left; from
pro-Israel advocates, and from Palestinian officials; from Israel’s own
attorney general, as well as European and Muslim-world governments; and even
from some Knesset members who actually voted for it.
All seem to believe the law, which authorizes retroactively
Israeli settlement homes built illegally on privately owned Palestinian land, is
a watershed moment in the Israeli-Palestinian conflict. But with so many voices
vying to explain precisely why it is so bad, it can be easy to miss, or to
misunderstand, the indigenous Israeli political impulses that forged it, and
thus to misrepresent what it means for Israel’s presence in the West Bank.
In an important sense, the Regulation Law changes very
little. Under Jordanian land law that still applies in the West Bank – Israel
never applied its own civil law, and so the territory is run under a combination
of various legal systems imposed by past rulers and IDF orders issued since 1967
– the governing authority in the territory is already permitted to seize
privately owned land for public benefit. The Jordanian law is far more expansive
and permissive as to what constitutes “public benefit” than is Israeli civil
law within Israel’s borders, and more even than what Israel’s military
administration has actually done in the West Bank.
And so the new Regulation Law does not, as often claimed,
suddenly allow the Civil Administration, the Israeli agency
administering the West Bank under the army’s auspices, to seize private
property for Israeli settlements. The Civil Administration is already allowed
to do so, at least on paper (and leaving out for the moment the rather
significant question of international law and its obligations). Rather, the
Regulation Law requires that it do so.
In places where Israelis built settlements on privately
held Palestinian property in good faith – i.e., without knowing it was
privately owned – or received the government’s de facto consent for
squatting there, the Civil Administration is now forced to carry out
the seizure in the squatters’ name in exchange for state compensation to the
owners equal to 20 years’ rent or 125 percent of the assessed value of the
Here lies the most important fact of the law from the
perspective of the internal Israeli debate: that it is not actually directed
against the Palestinian owners (though, of course, it affects them most of all),
but against the Israeli state.
For decades, the Israeli left accused state agencies of
coddling and abetting the settlement movement. In 2005, the government of Ariel
Sharon published the Sasson Report, written by a former senior state prosecutor,
Talia Sasson, that detailed these agencies’ collusion in illegal building in
the West Bank.
As one right-wing supporter of the Regulation Law noted to
The Times of Israel this week, the first few hundred homes built in the Ofra
settlement in the northern West Bank during the 1980s and 1990s were constructed
without appropriate zoning or approval of any kind.
But in the wake of the report, and in keeping with the
policies of various governments since the late 1990s, enforcement of zoning and
planning requirements has grown much more stringent. It is no longer easy to
build without permission in places like Ofra or Beit El. Critics of the
settlements talk constantly about their unrelenting growth, but actual residents
of the more ideologically rooted settlements nestled deep within the West Bank
feel the opposite, that their growth is being choked by a state that even under
right-wing rule views them as an enemy.
Ironically, nowhere is this tension between the settlement
movement and the state clearer than in the way the law justifies the seizure of
land. To authorize the seizure, article 3 of the law requires that either of two
conditions be met: the aforementioned “good faith” requirement, “or that
the state gave its agreement to the [settlement’s] establishment.”
This is an important “or,” as it means seizure is
possible even in bad faith, where the land was explicitly settled in the full
knowledge that it was privately owned by Palestinians, as long as state support
can be demonstrated.
And article 2 of the law ensures that it won’t be hard to
demonstrate such support. It defines “agreement of the state” thus:
“Explicitly or implicitly, beforehand or after the fact, including assistance
in laying infrastructures, granting incentives, planning, publicity intended to
encourage building or development, or financial or in-kind participation” in
the settlement’s establishment.
If any state agency paved a road, provided electricity or,
arguably, merely sent security or law enforcement forces to protect a
settlement, the squatters may be able to claim “agreement of the state.”
The Sasson Report put the question of unacknowledged
government assistance to illegal settlement construction on the national agenda
as an explicit first step to stopping that assistance. The Regulation Law flips
that intention on its head, turning that governmental support into the legal
reasoning for retroactively authorizing the very construction the report was
intended to help freeze.
It is hard to imagine that this perfect inversion of the
Sasson Report is accidental. The Regulation Law’s earliest drafts were written
by advisers to Jewish Home MK Betzalel Smotrich, the former head of Regavim, an
Israeli right-wing advocacy group that works on issues of land rights and
settlements. That is, it was formulated by lawyers deeply familiar with the
issues and questions raised by the Sasson Report, and with Israeli settlement
policy since its publication.
For Attorney General Avichai Mandelblit, however, the
problems posed by the law go deeper than this cantankerous shot across the bow
of the left-right culture war.
In its very first sentence, the law proclaims: “The
purpose of this law is to bring order to the settlement in Judea and Samaria and
to allow its continued establishment and development.”
For 50 years, Israel has officially argued that the West
Bank is not “occupied” as the term is understood in the Fourth Geneva
Convention, but merely “disputed.” The legal reason – that the Convention
defines as “occupied” only tracts of land taken by a state in wartime from
another state that had sovereignty there; the West Bank was not sovereign
Jordanian territory when Israel captured it from Jordan in 1967 – may be
convincing to many Israelis, but sways almost no one else on Earth.
This argument also has the thorny disadvantage of leaving
unanswered the rather fundamental question of what, exactly, is the status of
millions of Palestinians living in this non-occupied territory who are not, and
don’t want to be – and Israelis don’t want them to be – citizens of
Since 1967, Israel’s response, both in international
forums and to its own High Court, has been to distinguish between the people and
the land, applying to the Palestinian population, but not to the land, the
protections of “occupation” granted by the Fourth Geneva Convention. (This
distinction is not wholly innovative. The Convention’s own broad
definition of “protected persons” is, simply, “those who, at a
given moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.”)
Mandelblit’s complaint is a simple one. The Regulation
Law charges into this delicate and, for Israel, indispensable legal construct
like a bull in a china shop. It marks the first direct Knesset legislation of a
civil law that applies directly to Palestinians in the West Bank, and it does so
without even conferring on them, as Israel did in the past in East Jerusalem or
the Golan Heights, the broader edifice and legal protections of Israeli civil
law more generally.
“A state can only legislate where it is sovereign,”
Talia Sasson told The Times of Israel in an interview Tuesday. “The basic
theory is that the people are sovereign, we choose representatives and they
decide the way we behave within this [sovereign] territory.”
So, for example, the Israeli Knesset does not have the
authority to legislate traffic laws in Paris or zoning rules in London. Law
“So this law that claims to apply outside Israeli
[sovereign] territory cannot be a constitutional law,” said Sasson, who now
chairs the board of the left-wing New Israel Fund.
And it is why the law is sure to be struck down by the High
Court of Justice, she predicted. “If I’m a High Court justice, my first
question to the state’s attorney [defending the law] would be, ‘Explain to
me not what claims we have to the territory – that’s not the question here
– but by what authority'” Israel is legislating a civil law there without
first defining the territory as subject to Israeli civil law, with all the
ramifications such a designation would carry.
The Regulation Law is a potential watershed moment not
because of the powers it confers or the requirements it demands of state bodies,
but for the simple fact that it appears to penetrate this carefully constructed
legal membrane between democratic, sovereign Israel on the one hand, and the
occupied – or at least, under the Fourth Geneva Convention to which Israel is
a signatory, specially protected as though occupied – Palestinian population
on the other.
Tear down this barrier, this legal balancing act that has
endured for five decades, and Israel faces a stark question: Why are some of the
people living under the civil control of the Israeli state enfranchised as full
citizens, but others are not?
Critics of Israel scoff at such legalisms. Fifty years
after the Six Day War in 1967, they ask, isn’t that the de facto situation of
the Palestinians in any case?
Yet within the Israeli discourse, in Israeli law and
judicial precedent, the West Bank’s liminalism is seen as a fundamental
protection for Israeli democracy. The Palestinians have not been naturalized,
Israeli governments and courts have been insisting for decades, only because we
are holding out for peace and separation. Their condition is provisional,
temporary, even if its resolution has been long in coming.
If you rob me of that argument, if there is no longer a
clear distinction between the legal status of sovereign Israeli territory and
that of the West Bank, Mandelblit has told lawmakers in recent months during
debates about the law, how will I continue to defend Israel’s current policy
in the West Bank? If the Palestinians can now be subjected directly to Israeli
civil law, how much longer will we be able to continue justifying the fact that
they cannot vote for the body that creates that law?
None of this is lost on the bill’s supporters. Nor are
they unaware that the law is all but certain to be struck down by the High Court
Yet the campaign by the Jewish Home party and Likud’s
rightist flank to advance the law, which was resisted even by Prime Minister
Benjamin Netanyahu, was worth the trouble and potential fallout, they feel,
because of the vital message it is meant to convey.
International law requires that an “occupying power”
care for the needs of the inhabitants of a captured or occupied area. Over the
past 20 years, Israeli governments have assiduously avoided carrying out
significant seizures of privately owned Palestinian land solely for the benefit
of Israeli settlements, such as the construction of access roads to such
As Mandelblit himself has argued to any lawmaker who would
listen, Israeli authorities in the West Bank have clung to a consistent policy
of only seizing privately owned Palestinian land in cases where the land’s
public use will also, or even primarily, benefit the local Palestinian
One supporter of the Regulation Law familiar with its
development told The Times of Israel this week that “the net result of this
Israeli policy is that we accept a legal interpretation that sees the Israeli
population [in the West Bank] as not part of its ‘inhabitants.’ That
includes Israelis who have lived there for 40 years.”
Here lies the deeper message, the statement of principle
that makes palatable the legal risks and diplomatic fallout, even if the law is
ultimately overturned by the High Court: that the Israeli population in the West
Bank belongs there, that its presence is legitimate and just, that they are as
much the “inhabitants” of Judea and Samaria as the Palestinians.
This is not a message intended for foreign audiences, but
for Israelis, and especially for government officials who, in practice, and
despite often extravagant proclamations otherwise, seem to doubt the point.
This is the strange irony at the heart of the Regulation
Law: that it is less a reliable signal of what the future holds for Israel’s
policy in the West Bank – no one who voted for it expects it to survive the
High Court challenge – and more a reflection of the deep sense of alienation
and vulnerability that permeates the very settlements that, superficially at
least, appear so empowered by its passage.