AG urges court to strike Regulation Law, points to new ways to legalize outposts
Mandelblit argues that with new legal mechanism allowing for authorization of 2,000 Israeli homes built on Palestinian land, there’s no need for ‘unconstitutional’ legislation
Jacob Magid is The Times of Israel's US bureau chief
Attorney General Avichai Mandelblit urged the High Court of Justice on Tuesday to strike the so-called Regulation Law that was passed by the Knesset in March 2017 and has since been frozen by the top legal body.
In a letter to High Court justices, Mandelblit wrote that “there is no escape from the judicial declaration that the Regulation Law is an unconstitutional law, which is null and void.”
The legislation — which Mandelblit has long opposed — would allow the state to expropriate private Palestinian land where some 4,000 illegal settler homes have been built, provided that they were established “in good faith” or had government support, and that the Palestinian owners receive 125 percent financial compensation for the land.
Even before it was passed, Mandelblit said that he would not defend the legislation on the state’s behalf, saying it violated Palestinian rights and would compromise Israel’s international standing. The government was forced to hire a private attorney, Harel Arnon, to defend the law on its behalf.
A group of left-wing NGOs and Palestinian local councils petitioned the High Court against the law immediately after it was passed, arguing that the Knesset does not have the authority to pass laws regarding property in the West Bank which is under the jurisdiction of the military. The top legal body subsequently stalled the implementation of the legislation pending hearings that have since been ongoing. Most analysts predict that the court will strike the legislation, or limit its scope, at the very least.
The purpose of Mandelblit’s letter on Tuesday was to update the High Court on a decision he issued last Thursday that officially approved the use of a legal tactic that will allow for the de-facto legalization of roughly 2,000 illegally built Israeli homes throughout the West Bank.
The legal mechanism is known as “market regulation” and relies on the notion that wildcat Israeli homes built on private Palestinian land were done so in good faith.
“A transaction made in good faith between the Custodian of Government Property in the Territories and any other person regarding property that the Custodian thought at the time of the transaction was government property shall be valid, even if the land in question [is later found to] not belong to the State,” reads Article 5 of the 1967 Order Concerning Government Property in Judea and Samaria.
The tactic served as the basis of the Jerusalem District Court’s August ruling on the legalization of the central West Bank outpost of Mitzpe Kramim. It that case, however, it was used as a defense against a Palestinian petition to the High Court seeking to demolish the outpost. Now it is being used in an “active” manner to legalize homes where no High Court petitions are pending against them.
Mandelblit argued that the government’s issuing to settlers of (what it believes to be) state land is a “transaction” it of itself, even though the Israelis were often not paying for the land that they received.
A large number of the illegal homes that are at the center of the Regulation Law debate, or roughly 2,000 structures, would be retroactively legalized with the application of this new standard, officials estimate. A significant amount, but still less than the more far-reaching Regulation Law.
For Mandelblit, Article 5 offers key advantages over the Regulation Law. It dramatically reduces the political pressure that led to the law by legalizing most of the Israeli homes currently in danger of future demolition, but without requiring the “government support” clause that could produce a new wave of outposts demanding legalization. It also places the “good faith” requirement on the government, and not on the settlers themselves, and so could help limit future attempts to use “good faith” arguments to retroactively justify illegal squatting.
Employing market regulation, Mandelblit argued in his letter submitted Tuesday to the High Court, would represent “a more proportionate and balanced measure than the arrangement prescribed in the Regulation Law.”
Separately this week, the Ministerial Committee for Legislation voted to advance legislation known as Regulation Law 2. The proposal was submitted by Jewish Home MK Bezalel Smotrich, who expressed impatience in waiting for the court to unfreeze the February 2017 legislation, which he had also sponsored.
Regulation Law 2 directs the Knesset-appointed outpost legalization committee to regulate 66 illegal hilltop communities in the next two years. In the meantime, the bill prevents those outposts from being demolished and ensures that they receive full government services.
While the international community considers all settlement activity illegal, Israel differentiates between legal settlement homes built and permitted by the Defense Ministry on land owned by the state, and illegal outposts built without necessary permits, often on private Palestinian land.
Although certain government ministries may currently not fund outposts to the same degree that they do settlements, local Israeli authorities throughout the West Bank have long taken financial responsibility for the illegal communities, ensuring that they are hooked up to water and electricity and receive the necessary public services. In addition, the IDF uses extensive resources to ensure that they are protected.
