By Natalie Sedacca, blog, LPHR
March 03, 2017
On 6 February 2017, the Israeli Knesset (legislature) passed a law permitting the expropriation of housing built on private Palestinian land in the Occupied Territories. Under the legislation, referred to herein as the ‘Expropriation Law’ (but also described as the ‘Regularisation Law’ or simply the ‘Theft Law’) Palestinians from whom land was taken would have no right to claim it back ‘until there is a diplomatic resolution of the status of the territories.’ The legislation was described by Miri Regev, a Minister in the ruling Likud party, as ‘a historic move’ towards the West Bank’s annexation.
The law relates primarily to ‘outposts,’ namely communities built by Israelis on an ad hoc basis over the last 20 years without official prior authorisation from the Israeli state, which are separate from settlements although often located in their vicinity. Both settlements and settlement outposts are illegal under international criminal, humanitarian and human rights law, as further discussed below.
UN Security Council Resolution 2334, passed on 23 December 2016, reaffirmed the illegality of Israeli settlements and their status as a ‘flagrant violation under international law,’ demanding an immediate cessation of all settlement activities. The subsequent action by the Israeli Knesset, contrary to this resolution, to pass legislation entrenching settlements, demonstrates an open disregard for both the resolution and international law. This is compounded by the authorisation of 6,000 further housing units within existing settlements in the aftermath of Resolution 2334.
According to the Israeli organisation Peace Now, the Expropriation Law (as coined by the Association for Civil Rights Israel) will be used to initially formalise 55 illegal outposts containing 397 housing units as well as 3,125 housing units in existing settlements, amounting in total to around 8 square kilometres of Palestinian land, with further expropriations to follow on land seized by the military in the 1970s. In addition, the Israeli justice minister would have the power to authorise the expropriation of yet further outposts and settlements.
Justice minister Ayelet Shaked and education minister Naftali Bennett used their Jewish Home forces in the Knesset to push through a bill against all legal advice. Photo by Yonatan Sindel/Flash90
This takes place in the context of a broader policy of the state to encourage settlement activity as recently noted by the UN Secretary General, while Palestinian structures are destroyed at an alarming and increasing rate, with an estimated 1,089 structures in the West Bank demolished or seized in 2016, displacing 1,593 Palestinians and affecting another 7,101’s livelihoods.
International humanitarian law / international criminal law
The process of settlement expansion involves a transfer of Israeli citizens to occupied Palestinian territory, with the government actively encouraging relocation by providing incentives and subsidies. Article 8(2)(b)(vii) of the Rome Statute of the International Criminal Court (ICC statute) provides it is a war crime for an occupying power to directly or indirectly transfer parts of its own civilian population into the territory it occupies. Such action also violates Article 49 of the Fourth Geneva Convention on the protection of civilians, which provides that an Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
Young settlers try to prevent the court-ordered evacuation of the Amona outpost. It was this that triggered the re-presentation of the ‘Regulation Bill’. Photo by Jack Guez, AFP.
Furthermore, the formal expropriation permitted by the legislation may entail destruction and / or confiscation of property. Article 46 of the Hague Convention 1907 provides that an occupying power must respect private property, which cannot be confiscated. Article 53 of the Fourth Geneva Convention prohibits any destruction of real or private property whether belonging to private individual(s), the state or another organisation, except where rendered absolutely necessary by military operations.
There is negligible credible basis for asserting that the seizures are justified by military necessity, particularly bearing in mind that current ruling politicians have made a different purpose clear – that is, the illegal annexation of an occupied territory. Accordingly, seizures may also amount to the war crime of ‘Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’, contained in Article 8(2)(a)(iv) of the ICC Statute.
International human rights obligations apply in the occupied territories in addition to international humanitarian law. The expropriation law stands to exacerbate severe adverse human rights impacts of the existing settlements.
As explained in an earlier LPHR blog, settlements inherently violate one of the most basic provisions of international human rights law, the right to self-determination, which provides that all people are entitled to ‘freely determine their political status and freely pursue their economic, social and cultural development.’
The formalisation of the settlements via the new law serves to entrench and intensify this position, as, startlingly, legislation passed by a parliament elected only by Israeli citizens comes to determine property rights for Palestinians living under occupation who have no vote in those elections. The position is so extreme that the law it has even been condemned by former Israeli justice minister and a supporter of settlements, Dan Meridor, as a breach of fundamental democratic principles.
The human rights implications of the settlements also extend far beyond this. As noted by a 2013 report of an independent UN fact-finding mission, they lead to violations of a number of civil and political rights such as rights to equality and non-discrimination, due process and freedom from arbitrary detention, liberty and security of person, freedom of expression, as well as social and economic rights including access to natural resources and rights to education, water, housing and property. For example, Palestinians frequently suffer from a serious scarcity of water while nearby settlements are, in some cases, able to sustain swimming pools and spas as well as meeting the settlers’ agricultural needs.
As noted in a recent LPHR Briefing, settlements are dependent on an infrastructure constructed on land expropriated from Palestinians, including roads which are only open to settlers, military checkpoints, and a ‘separation wall’ which is located mainly on occupied Palestinian territory, found by the International Court of Justice to be illegal and to risk creating de facto annexation. Furthermore, Palestinians are subjected to high levels of violence from settlers, with 175 such incidents recorded by the Office for Coordination of Humanitarian Affairs between 1 June 2015 and 31 May 2016. The virtual impunity with which these attacks are met has led to multiple criticisms by the UN Secretary General, and arguably amounts to a breach of the state’s ‘positive obligation’ under international human rights law to investigate and punish human rights violations by non-state actors.
Summary and Legal Challenges
Within days of the legislation’s passing, 17 Palestinian municipalities petitioned the High Court to strike it down. Organisations including the Association for Civil Rights in Israel have also commenced work on another such petition.
Reflecting the severity of the legislation’s incompatibility with international humanitarian law and its unprecedented nature, the Attorney General Avichai Mandelblit has indicated that he will refuse to defend it in court against allegations that it breaches the Fourth Geneva Convention and might even go so far as to give evidence against it.
If the Israeli courts decide to uphold the law in the face of these challenges – or indeed if success in the courts does not lead legislators to back down – Palestinians may have to look to international criminal justice for a remedy. MK Haneen Zoabi, a Knesset legislator and Palestinian citizen of Israel, has offered to help secure an indictment of Netanyahu in the International Criminal Court, of which Palestine has been a State Party since 1 April 2015. This would add to the ongoing preliminary investigation for alleged war crimes committed, in particular during the 2014 offensive on Gaza.
By formalising the legal status of the settlements outposts in domestic law and accordingly encouraging further such activity, the Expropriation Law will inevitably exacerbate the fundamental concerns outlined above, with severe and detrimental impacts on the human rights of Palestinians living under occupation, as well as potentially enabling international crimes. It is therefore to be hoped that the challenges outlined above will succeed in preventing the operation of this egregious and discriminatory law before it is able to take effect.
 Palestinians whose land is expropriated in this way will be given a different area of land where possible, failing which an assessment committee will determine a payment to be made to them annually – Allison Kaplan Sommer, ‘Explained: Israel’s New Palestinian Land-Grab Law and Why It Matters’ Haaretz (7 February 2017) <http://www.haaretz.com/israel-news/1.770102> accessed 22 February 2017.
 Allison Kaplan Sommer, ‘Explained: Israel’s New Palestinian Land-Grab Law and Why It Matters’ Haaretz (7 February 2017), accessed 22 February 2017.
 Andrew Carey and Emanuella Grinberg, ‘Israel’s Parliament Passes West Bank Outposts Bill’ (CNN, 7 February 2017), accessed 22 February 2017.
 Peace Now, ‘The Grand Land Robbery: Another Step toward Annexation’ (2016) <http://peacenow.org.il/wp-content/uploads/2016/11/regulation-law-report.pdf> accessed 22 February 2017.
 Sommer (n 1).
 United Nations, ‘Israeli Settlements in the Occupied Palestinian Territory, Including East Jerusalem and the Occupied Syrian Golan – Report of the Secretary General’ (2016) 3 <http://www.ohchr.org/Documents/Countries/PS/SG_Report_on_Israeli_A.71.355.pdf> accessed 22 February 2017.
 United Nations News Service, ‘UN Study Reveals Record Number of Demolitions in Occupied Palestinian Territory in 2016’ (UN News Service Section, 29 December 2016) <http://www.un.org/apps/news/story.asp?NewsID=55889#.WLM4-RicZ8c> accessed 26 February 2017.
 United Nations, ‘Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People throughout the Occupied Palestinian Territory, Including East Jerusalem’ (2013) <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-63_en.pdf> accessed 22 February 2017 ¶ 22.
 e.g. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory – Advisory Opinion of the International Court of Justice (International Court of Justice) ¶ 108.
 Article 1 International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN Doc A/RES/21/2200 (16/12/1966).
 Dan Meridor, ‘Opinion – 5 Reasons Why Israeli Lawmakers Must Vote Against the Outpost Legalization Bill’ Haaretz (3 February 2017) <http://www.haaretz.com/opinion/.premium-1.769360 – reprinted at JfJfP, accessed 22 February 2017.
 United Nations, ‘Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People throughout the Occupied Palestinian Territory, Including East Jerusalem’ (2013) 21–22 <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-63_en.pdf> accessed 22 February 2017.
 United Nations (n 11) ¶ 85.
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory – Advisory Opinion of the International Court of Justice (International Court of Justice).
 United Nations, ‘Israeli Settlements in the Occupied Palestinian Territory, Including East Jerusalem and the Occupied Syrian Golan – Report of the Secretary General’ (2016) 5 <http://www.ohchr.org/Documents/Countries/PS/SG_Report_on_Israeli_A.71.355.pdf> accessed 22 February 2017.
 ibid 6.
 E.g. Velásquez Rodríguez v Honduras (Inter-American Court of Human Rights); UN Committee for the Eliminination of Violence against Women, ‘General Recommendation No. 19: Violence against Women’ (2013) <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_CEDAW_GEC_3731_E.pdf> accessed 26 February 2017 ¶ 9.
 Jonathan Cook, ‘Palestinians Ask Israeli Court to Reject Land Grab Law’ <http://www.aljazeera.com/indepth/features/2017/02/palestinians-israeli-court-reject-land-grab-law-170209081244613.html> accessed 26 February 2017.
 ACRI, ‘Join ACRI as We Petition the High Court against the Expropriation Law’ <http://www.acri.org.il/en/2017/02/09/join-acri-as-we-petition-the-high-court-against-the-expropriation-law/> accessed 22 February 2017.
 Cook (n 19).
 Ben Lynfield, ‘MK Zoabi Offers to Help ICC Indict Netanyahu over Settlements Law’  The Jerusalem Post <http://m.jpost.com/Arab-Israeli-Conflict/Zoabi-offers-to-help-ICC-indict-Netanyahu-over-settlement-law-481020#article=6017OUQ2RUFBOUYyRTVEM0Y5RjNCNUQ2RTg2NjI3QjlGMDY=> accessed 22 February 2017.
 Office of the Prosecutor International Criminal Court, ‘Report on Preliminary Examination Activities 2016’ (2016) <https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf> accessed 26 February 2017.