Attorney general announces new settlement legalization process

Attorney General Avichai Mandelblit is expected to tell the High Court of Justice on Sunday that most of the lands held by illegally built West Bank settlements could be authorized by the state, thereby removing the need for the contentious “regulation law.”

Mandelblit’s move would lend state recognition to some 2,000 homes and other structures built by Israelis throughout the West Bank, mostly on land owned by Palestinians.

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.

In February 2017, the Knesset passed a law proposed by right-wing parties to legalize some 4,000 Israeli homes built illegally on Palestinian-owned land by expropriating the use of the land where settlers had built, and compensating the Palestinian owner according to a formula to be drawn up by an Israeli state committee.

The law stipulated that the expropriation could take place only where the settlers were determined to have built in “good faith” or with “government support.”

Attorney General Avichai Mandelblit attends a Knesset State Control Committee meeting on December 3, 2018. (Miriam Alster/Flash90)

The “good faith” stipulation reflects the reality that some of the Israeli outposts were built unwittingly on privately owned land, as the West Bank’s land registry is a complex network of overlapping historical systems, including the registries from the periods of Ottoman and Jordanian occupation, as well as the present-day Israeli military registrar. It is often difficult to determine the precise ownership of a tract of land, a problem sometimes exacerbated by Palestinians and Israelis engaged in fraudulent sales to lavishly paying settler groups.

But critics of the Regulation Law have noted that allowing expropriation of Palestinian land based on the “government support” clause means, in practice, that any Palestinian land can be grabbed, developed and then expropriated even without a “good faith” claim that the squatters did not know about the Palestinian ownership. The law does not clarify which branch of “government” must render “support,” and so does not necessarily require the support of national ministries for the outpost. Local Israeli authorities throughout the West Bank — that is, the settlement councils that often initiated the squatting on the land in the first place — have long taken financial responsibility for the illegal outposts, ensuring that they are hooked up to water and electricity and receive the necessary public services. The IDF also devotes extensive resources to ensure that these communities are protected.

There are thus no outposts in the West Bank that lack some measure of “government support,” at least from local government agencies in neighboring settlements.

That reality led Mandelblit to refuse to defend the law in the High Court of Justice on the state’s behalf, arguing that it directly and systematically violated the property rights of Palestinians.

A group of left-wing NGOs and Palestinian local councils petitioned the High Court against the law, 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 court then stalled the implementation of the legislation pending hearings that have been ongoing.

Most analysts predict that the court will strike down the legislation, or at least limit its articles that allow for unlimited de facto squatting and expropriation.

Illustrative photo of the former West Bank outpost of Amona. (Noam Moskowitz/Flash90)

In a bid to head off lawmakers’ continued efforts to legalize illegal outposts without limit — including a new bill, dubbed “Regulation Law 2,” being considered by cabinet ministers on Sunday — Mandelblit announced on Thursday a new mechanism for legalizing the outposts that nevertheless places limits on the ability of settlement councils to force the state to expropriate more private Palestinian land in the future.

The idea is the result of three years of research, Mandelblit’s office said.

The solution rests on the English legal concept of marché ouvert, or “open market” in French, a medieval rule governing the purchase of stolen goods that was only abolished in England in 1995 but which is still in force in places that borrowed heavily from English common law, including Israel and Hong Kong. According to this principle, someone who purchased stolen goods under conditions in which it was not reasonable to assume they were stolen can in some cases retain ownership of the goods even after discovering that they were not owned by the seller.

In Israel, this principle is known as takanat hashuk, or “market regulation,” and applies to laws dealing with real estate, loan collaterals, and other areas of property law.

Mandelblit announced he intends to use the version of this principle as articulated in the law governing Israeli land registration in the West Bank.

Illustrative: IDF soldiers patrol the Gilad Farm illegal West Bank settlement outpost on December 2, 2009. (Kobi Gideon/Flash90)

It is, in effect, a policy based on the expansion of Article 5 of the law regulating the Israeli Defense Ministry’s Custodian of Government Property in the Territories. It reads: “A transaction conducted in good faith between the Custodian of Government Property in the Territories and another person, regarding any property that the custodian believed at the time of the transaction was government property, is valid, even if the land in question did not belong to the state.”

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.

For Mandelblit, the new legal regime may offer 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 squatting.

“The implementation of ‘Article 5’ constitutes a significant part of the policy of the Government of Israel to legalize illegal construction in Judea and Samaria, which was carried out in good faith and with the support of state bodies,” Mandelblit’s Thursday legal opinion announcing the new policy reads. “Therefore, relevant government ministries will take the initiative in advancing steps required for the implementation of this article.”

The announcement was welcomed by Justice Minister Ayelet Shaked, of the pro-settlement Jewish Home party, who praised the attorney general’s announcement as “a boon to the settlement [movement]. Years of freezes, uncertainty and the threat of demolition are ending. We’ve changed the conversation from a conversation about evacuation to one of legalization and [new] building.”