'A sweeping and injurious arrangement'

AG: Outpost law discriminates against Palestinians, should be repealed

Forced to respond to a High Court petition, Avichai Mandelblit reiterates his opposition to the controversial legislation and calls it unconstitutional

Jacob Magid is The Times of Israel's US correspondent based in New York

Attorney General Avichai Mandelblit speaks during a ceremony in Jerusalem, October 26, 2017. (Yonatan Sindel/Flash90)
Attorney General Avichai Mandelblit speaks during a ceremony in Jerusalem, October 26, 2017. (Yonatan Sindel/Flash90)

Attorney General Avichai Mandelblit slammed a new law to legalize wildcat West Bank outposts as “unconstitutional” and called for its annulment in a Thursday legal response to a High Court petition.

Shortly after the law was passed in February, Mandelblit announced that he would not defend  the legislation, which allows the Israeli government to expropriate private Palestinian land where illegal outpost homes have been built ex post facto provided that the outposts were “built in good faith” or had government support and that the Palestinian owners receive financial compensation for the land.

The state instead was forced to hire a private attorney to defend the controversial legislation in court.

However, a petition to the High Court of Justice from a group of left-wing NGOs and Palestinian local council leaders named the attorney general, among others, requiring him to respond.

Wednesday’s 72-page letter from the attorney general made clear that his opinion on the so-called Regulation Law had not changed in the past nine months.

“There is no escaping a judicial declaration maintaining that the Regulation Law is unconstitutional,” Mandelblit wrote. While he acknowledged the Knesset’s goal of addressing the plight of settlers whose homes are facing demolition orders due to illegal building was well-intentioned, the attorney general said that the resulting legislation was “a sweeping and injurious arrangement that does not meet the test of proportionality.”

New prefabricated homes are seen under construction in the West Bank between the Israeli outpost of Amona and the settlement of Ofra (background), north of Ramallah, on January 31, 2017. (AFP/Thomas Coex)

Mandelblit added that “the law will also cause severe discrimination against the Palestinian population in the region.”

As he has said publicly in the past, the attorney general reiterated his belief that “the arrangement that was legislated raises considerable questions in the field of international law.”

Analysts say the Regulation Law will pave the way for the government to recognize some 4,000 illegally built Israeli homes.

The passage of the bill, originally meant to save the since-razed outpost of Amona, was roundly condemned by activists and political figures in Israel and abroad.

But while Mandelblit was vocal in his opposition to the outpost legalization law, the attorney general provided a legal opinion in a separate case last week that rights groups argue may have set an identical precedent to the one that the February legislation had aimed to establish.

The legal opinion saw Mandelblit approve the expropriation of private Palestinian land for the building of an access road to an illegal West Bank outpost, Haresha.

To green-light the land confiscation, the attorney general used a recent legal opinion given by Supreme Court Justice Salim Joubran who ruled separately that abandoned private Palestinian land could be seized for the grounds as long as the original owners are compensated.

Under the military’s jurisdiction, Joubran described settlers as a protected population that the army is expected to care for through the paving of roads, for example.

Beyond objecting to the broader illegality of the land seizure, the Palestinians have argued that the only reason that the land is considered “abandoned” is that they are prevented from accessing it.

In his own legal opinion several days later, Mandelblit wrote that given Jabroun’s ruling, “there is no longer a legal impediment in advancing the recommendation regarding the construction of the access road to the Haresha outpost through expropriation for the [sake of the] needs of the public.”

Speaking with The Times of Israel, Mandelblit’s adviser Gil Limon said that very specific circumstances allowed for the seizure, suggesting that the implications of Wednesday’s decision might not be as broad as the settlers are hoping.

However, the Peace Now settlement watchdog said that the state is permitting “the seizure of territories it does not have sovereignty over — those which belong to a Palestinian population that does not have civil rights and the right to vote — all for the exclusive purpose of an Israeli population that has rights.”

read more:
Never miss breaking news on Israel
Get notifications to stay updated
You're subscribed