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No defence for this robbery


February 5, 2017
Sarah Benton

The article by Dan Meridor is followed by another by two Israeli lawyers.


Many outposts are (still) illegal in Israeli law. This settler outpost of Maale Rehavam, near Bethlehem was therefore demolished by Israeli border police and IDF. Photo on  May 14, 2014 by  Ronen Zvulun /Reuters

Five reasons Why Israeli Lawmakers Must Vote Against the Outpost Legalization Bill

The State of Israel has never applied its sovereignty to the West Bank – and for very good reason. Passing a law regulating Arab property ownership would be a disastrous move and spell the end of the settlement enterprise.

By Dan Meridor , Haaretz premium
February 03, 2017

1. Don’t cross a line we’ve never crossed before. The Knesset has never enacted legislation regulating Arabs’ property ownership in Judea and Samaria. The Knesset was elected by Israelis and legislates for them. The Arabs of Judea and Samaria did not vote for the Knesset, and it has no authority to legislate for them. These are basic principles of democracy and Israeli law. As a rule, elected officials legislate for their constituents and those within the area of their jurisdiction, not others.

No government in Israel has applied its sovereignty to the West Bank – not former Likud prime ministers Menachem Begin or Yitzhak Shamir. They understood the obvious: If you want to pass legislation for the West Bank, you have to extend your sovereignty and allow the residents of Judea and Samaria the right to become citizens and vote in Knesset elections. And the meaning is clear.

We are allowed to control the land we hold with a “belligerent occupation,” and are permitted to act there for our security purposes but not for other purposes. This is set not only by international law but also Israeli law.

2. The proposed law is an unfair one and will bring disgrace upon our law book. It was not without reason that MK Benny Begin – a “Greater Israel” supporter – dubbed it “the robbery law.” Don’t legislate evil laws and don’t authorize theft.

3. Prime Minister Benjamin Netanyahu said that this law is liable to bring us to the International Criminal Court. If he’s right, how can we avoid a discussion on the legality of the settlements in this court? And don’t say international law has no teeth. That’s exactly what all those tried before it thought. At the Palestinians’ request, ICC Prosecutor Fatou Bensouda is soon to decide whether Palestine is a country and whether the court will discuss crimes committed in its territory. The UN General Assembly has already decided by a huge majority that Palestine is a country. And in the Rome Statute documents that established the court, it is clearly stated that settlement is illegal. Do we really want to go there?

Such a decision by the court would endanger the entire settlement enterprise, including Jerusalem and the “settlement blocs,” and the chance to include them in Israeli territory. Why did you involve us in such a risk? It’s extremely serious and dangerous. Be careful with your actions.

4. The struggle for our right to settle in Judea and Samaria has been going on for 50 years, without success in the international arena. Despite that, no international instruments of coercion have been used against us, partly because we were always careful to say that we were not taking private land from Arab residents in order to build settlements. We have obligated ourselves to this in the High Court of Justice, and have also committed ourselves to the world. Don’t break this just, legal and diplomatic principle.

Apart from that, what image of settlement are we creating around the world? By legislating this law, you will be playing into the hands of the Palestine Liberation Organization and all our enemies and opponents: Look, they’ll say, here’s proof that the settlements are an act of theft.

5. And don’t say: We’ll pass the law and then the High Court will overturn it; our hands won’t be spilling this blood. This is not a statement of leaders but of cowards. It will certainly allow the demagogues among us to breathe a sigh of relief that the High Court saved Israel from its actions, and to immediately accuse the court of going beyond its political authority, etc. It’s shameful.

This proposed law is unjust and unconstitutional. It goes against the fundamental principles of Israeli law. It is harmful to Israel and endangers all settlement in Judea and Samaria. Vote against it. Do not go down in the annals of Knesset history as someone who supported this evil and dangerous proposal.

The writer is a former justice minister and Likud MK.


Israel’s Settlement Regulation Bill Violates International Law

The proposed (and euphemistically titled) “Regulation Bill” is a bill pending before the Israeli Knesset which seeks to authorize the expropriation of private Palestinian property in order to render legal hundreds, if not thousands, of houses constructed unlawfully by Israeli West Bank settlers. It raises significant legal problems under Israeli law and under international law, as the latter is interpreted and applied by Israeli courts. Among many other problems, the Bill interferes with private property rights of Palestinian land owners in order to benefit Israeli settlers, and runs contrary to long-standing jurisprudence of the Israeli Supreme Court, according to which the construction of settlements in the West Bank can be permitted only on non-private land. It also raises serious issues concerning the power of the Israeli Knesset to regulate land rights in an area not subject to Israeli law (unlike East Jerusalem and the Golan Heights, Israel has never extended its domestic law to the West Bank).

It is for these reasons that the Attorney-General of the State of Israel has objected to the Bill and has taken the extraordinary step of declaring that he would not defend the State in litigation concerning the constitutionality of the Bill. Yet a group of lawyers, most of whom belong to a right-wing think tank, the Kohelet Policy Forum (where Eugene Kontorovich heads the international law department) have testified before a Knesset Committee and have published several op-eds maintaining that the Bill is valid under Israeli law, arguing inter alia that the Knesset may pass legislation which violates international law. They have also alleged as an alternative claim that the Bill does not violate international law, for reasons which are cited by Kontorovich in his Just Security post. In the following lines we address only this alternative claim, namely, that the draft Bill does not violate international law. We also disagree with the main claim made by the Kohelet lawyers, and believe that if the Bill is passed, it should be struck down by Israeli courts as unconstitutional.

Kontorovich’s claim is built on a number of legal and rhetorical moves: he begins by “[a]ssuming, for the sake of argument, that the law of belligerent occupation applies…”, implying that the applicability of the law of occupation is at least doubtful if not to be altogether rejected. In doing so he tries to cast doubt not only on the position of the International Court of Justice and on the legal effect of countless UN resolutions, including several Security Council resolutions, but also on the consistent jurisprudence of the Israeli Supreme Court, which has held that the West Bank is subject to belligerent occupation (including in cases dealing with the impermissibility of taking private land for settlements), and on the legal basis invoked by Israeli military authorities in the West Bank themselves for countless security measures they have taken (including seizure of property for military needs and administrative detention).

Second, Kontorovich’s “concession” toward the applicability of the law of occupation suggests that the dispute “has focused on Art. 46 of the Hague Convention.” Actually, the argument against the Bill extends not only to the 1907 Hague Regulations, but also to the Fourth Geneva Convention (Geneva IV). Kontorovich’s failure to even mention this key legal instrument is particularly objectionable given that even the Israeli government itself, which claims that Geneva IV does not apply de jure to the West Bank, has undertaken to comply with the Convention’s humanitarian provisions, and has thereby rendered itself bound by them. It is also noteworthy that since 2002 the Israeli Supreme Court has routinely applied Geneva IV to cases relating to the West Bank.

By disregarding Geneva IV. Kontorovich conveniently evades contending with the special legal protections to which Palestinians are entitled as “protected persons,” and implies that Israelis and Palestinians alike are the population of the occupied territory, subject to the same international legal standards with respect to property rights. He also evades addressing the effect of article 49(6) of Geneva IV on the legality under international law of the Regulation Bill, despite that provision prohibiting the transfer of the occupant’s civilian population into occupied territory. (Another body of law ignored by Kontorovich is international human rights law, both treaty-based and customary, which applies to all individuals in Israeli territory and subject to its jurisdiction, and which contains highly relevant provisions on non-discrimination, access to justice, right to property and self-determination).

Even were we to restrict the discussion to the Hague Regulations, the absence of an explicit prohibition on expropriation of private property in Article 46 does not exhaust the protection of private land rights. Kontorovich argues that expropriation is lawful if carried out in accordance with the local law of the occupied territory (i.e., Jordanian Law). However, use of local law remains subject to the letter and the spirit of the law of occupation, and the Regulation Bill runs contrary to both.

First, Article 46 of the Hague Regulations not only expressly prohibits confiscation, but also obligates the occupant to respect private property. While this does not preclude the imposition of limitations on the right, such limitations must meet, according to the jurisprudence of the Israeli Supreme Court, tests of necessity and proportionality. Discriminatory legislation which, in effect, authorizes the taking of land only from residents of the occupied territory for the benefit of nationals of the occupant (Article 1 of the Regulation Bill states that its purpose is “to regulate settlement in Judea and Samaria and enable the continuation of its establishment and development”) does not plausibly meet such requirements. In fact, it is precisely on that basis, of the strength of the legal right to property of Palestinian landowners and the impermissibility of infringing upon it by way of unlawful trespass, that the Supreme Court has ordered the dismantling of Amona, the settlement whose pending eviction has triggered the drafting of the Regulation Bill. Furthermore, the Bill, and the significant land reform it envisions, run contrary to the requirement of maintaining the status quo in occupied territories, which is reflected in the prohibition found in Article 43 of the Hague Regulation on changing local law, except when absolutely necessary. It is difficult to see how legalizing trespass by nationals of the occupant can be regarded as “absolutely necessary” under the laws of occupation.  In the same vein, it is difficult to accept that the underlying goal of the Regulation Bill – the promotion of Israeli West Bank settlements – is consistent with the pro-status quo letter and spirit of the laws of belligerent occupation (not to mention the letter and spirit of article 49(6) Geneva IV).

This is not the place to repeat the full debate over the legality of settlements under international law, but it is important to note that the Regulation Bill undermines two of Israel’s main contentions in this regard. Israel has traditionally maintained that its settlement campaign does not violate the prohibition on the transfer of civilian population of the occupant into the occupied territory, inter alia because the settlers are not “transferred,” but move into the West Bank voluntarily. By openly declaring Israel’s national policy of “enabl[ing] the continuation of [the] establishment and development” of settlement in the West Bank, and engaging Israeli officials and state authority in land expropriations for that very purpose, the Regulation Bill puts the lid on explanations regarding the private nature of the settlements. The Bill also runs counter to Israel’s claim that the settlement campaign is compatible with the State’s undertaking to comply with Geneva IV’s humanitarian provisions because constructing settlements does not infringe on the rights of individual Palestinians.

Space constraints do not allow us to also discuss the international criminal law implications of this development. Suffice it to say that Kontorovich’s claim that the situation in the West Bank is not related to an international armed conflict is totally groundless. The application of the laws of belligerent occupation to the West Bank necessarily implies the categorization of the situation as an international armed conflict (note however that specific hostilities in occupied territory may be categorized differently, according to their distinct features)..

Kontorovich concludes his post by noting that legislation for expropriation for the benefit of settlers has been adopted in other instances in the world. He argues that such legislation in Northern Cyprus has been “approved” by the ECtHR, while “[t]he fact that many aspects of Russia’s Crimean occupation have been explicitly criticized on international law grounds, but this one [expropriation of land] ignored, suggests that it is not seen as illegal.” However, neither of these instances has been explicitly addressed by the occupants themselves or by the international community in terms of the law of occupation, rendering them irrelevant as “precedents” under this body of law. In any event, the absence of comparable state practice does not vitiate the applicability of the law of occupation to the West Bank, and the paucity of international condemnations of violations by other occupants, cannot lead us to treat basic norms of the law of occupation, such as respect of property rights, maintenance of the status quo, and prohibition on transfer of population as having fallen into desuetude.

Finally, the framing of the debate by Kontorovich merits attention. Lawyers supporting the Regulation Bill present it as a bureaucratic mechanism to resolve civil law disputes between land owners and possessors, to be regulated under local land law. They play down – to oblivion – the ethnic/national bias underlying the law, which is directly related to the political context of its adoption. Neither of these elements can be dismissed; in fact, it is precisely this bias which the political proponents of the law openly pursue. The bill is explicitly aimed at enabling the continuation of the establishment and development of Israeli settlements in the West Bank in ways designed to undermine the exercise of Palestinian self-determination in the context of a two-state solution. Effectively it entrenches Israeli presence in the territory, and it gives legal preference to the interests of nationals of the occupant over the rights of disenfranchised Palestinian residents of occupied territory. Both are violations of international law.

is Professor of Law at Sha’arei Mishpat Academic Center for Science and Law, and a research fellow at the Minerva Center for Human Rights at the Hebrew University in Jerusalem.

is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He also serves currently as a member of the UN Human Rights Committee and is a senior research fellow at the Israel Democracy Institute.

 

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