Analysis: Settlement bill marks a revolutionary moment in Israeli history

If passed into law, the legislation would be the most significant event in the settlements movement since the 2005 withdrawal from Gaza and northern Samaria.

By TOVAH LAZAROFF
Updated: DECEMBER 8, 2016 00:44
A CONSTRUCTION site in the West Bank settlement of Givat Ze’ev, near Jerusalem [File] (photo credit: REUTERS)
A CONSTRUCTION site in the West Bank settlement of Givat Ze’ev, near Jerusalem [File]
(photo credit: REUTERS)
A bill that could be the first step toward annexation of Area C of the West Bank, and which would overturn almost 40 years of judicial rulings on private Palestinian property rights, was approved by a Knesset vote of 58:51 on its first reading Wednesday night.
If it passes into law, the legislation will be the most significant event in the settlement movement since the 2005 withdrawal, in which 25 settlements in Gaza and northern Samaria were evacuated.
That seminal event was about territorial withdrawal. This legislation, in contrast, shores up the Israeli presence in Area C, by legalizing settler homes built on private Palestinian property and allowing for further settlement expansion.
It would also mark one of the few times that the Knesset has legislated a law that applies to Area C. The application of Israeli law to the disputed territories is typically understood to be a sign of annexation.
It is for these reasons that regulations in Judea and Samaria are set by the Coordinator of Government Activities in the Territories (CO GAT) through a series through military orders and are not legislated by the Knesset.
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Known as the settlement bill, or the regulations bill, the legislation being voted on is designed to resolve the issue of 4,000 illegal homes built on private Palestinian property.
The bulk of the homes, 3,200 of them, are located within already existing settlements and their land cannot be returned to the Palestinian owners.
Almost two years after taking office, Prime Minister Benjamin Netanyahu in February 2011 held a critical policy meeting in which he determined, in keeping with Israeli law, that homes on private Palestinian property would be removed.
But in practice, unless forced to do so by the High Court of Justice, his government has had no desire to remove these homes, many of which were built decades ago.
The settlement bill would retroactively legalize these homes, thereby solving a problem for Jewish residents of Judea and Samaria. But in providing Israeli homeowners with increased rights, the Knesset would be simultaneously stripping Palestinians of their property rights.
The bill divides the lots on which the 4,000 homes are located into two categories: those with registered deeds and those without.
The state would seize the lots without registered deeds, immediately changing their status to state land.
The lots for which there already are registered title deeds, or which can be registered to owners, would be transferred to the Custodian of Abandoned Property until such time as a resolution to the conflict with the Palestinians is found.
Until then, the owners could receive either financial compensation amounting to 125% of their property’s value, or an alternative lot.
In sanctioning the construction of these 4,000 homes, the legislation would overturn a principal point of the 1979 High Court of Justice ruling on Elon Moreh that prohibited the construction of settlements on private Palestinian property.
In addition, it prohibited the seizure of such property by the IDF ostensibly for military purposes, when in fact it is intended for civilian use.
Even the most right-wing of legal experts, the late Plia Albeck – known as the mother of the settlement movement – respected that ruling.
Although the Elon Moreh ruling would remain in place for future construction, the legislation retroactively sanctioning such building would wipe out dozens of High Court of Justice rulings on petitions filed by left-wing groups on behalf of Palestinian landowners hoping to reclaim their land.
It would also allow for the possible legalization of 55 West Bank outposts, either as new settlements or as new neighborhoods of existing ones. While the homes in those outposts would be legal, additional bureaucratic steps would be necessary to determine the status of the community itself.
The bill must pass another two readings before it can become law.
It must then withstand an inevitable challenge by the High Court of Justice.
Attorney-General Avichai Mandelblit has already ruled that the law is unconstitutional and violates both Israeli and international law. In particular, his office has explained that Israel has a responsibility to protect the private property rights of Palestinians, and that land can be seized only for the public good. His office has said that the bill does not meet the public good criterion.
The High Court is expected to strike down the legislation, but its proponents are expected to argue that it is based on an understanding of the law that holds that Area C is occupied territory.
That understanding, proponents argue, does not reflect the government’s belief that – technically speaking – the laws of occupation do not apply to Area C of the West Bank. Under a changed legal understanding of the territories, the law would be considered legal.
More to the point, they argue, the Jewish state has an historic right to the territories comprising Judea and Samaria, which is also strategically necessary for defense.
When most Israelis speak of a two-state solution, they imagine giving up some, but not all, portions of Area C of the West Bank.
MK Bezalel Smotrich (Bayit Yehudi) told a Knesset committee on Tuesday that this is a matter of diplomacy and politics, not law.
Proponents also say that this system actually addresses an injustice by providing compensation to Palestinians for losing their property.
In addition, they note that the payment of financial compensation to address an injustice with regard to building issues is a well-accepted principle of property law.
Outside of the Israeli legal system, however, the move is likely to be immediately condemned by the international community. It would be frowned on by the International Criminal Court, which is already examining Israeli settlement activity, and would consider seizure of private Palestinian property to be illegal.
Netanyahu, who has only reluctantly supported the legislation, has warned that it would place Israel in trouble with the ICC.
MK Yousef Jabareen (Joint List) warned Knesset members on Wednesday that all those who signed the law were heading to the ICC.
The Palestinian Authority has already submitted material on the legislation to the ICC and turned to the UN Security Council, where it is hoping to secure a resolution from its 15 member states condemning Israeli settlement activity.
Israel has long been concerned that US President Barack Obama would support a resolution against Israel at the council in the last weeks before he leaves office on January 20.
While the Obama administration has shown no signs of doing so, given his strong opposition to Israeli settlement activity, it is presumed that if this bill becomes law, it could sway him to change his mind.