Right-wingers fume; AG had refused to defend law

High Court nixes law aimed at legalizing settler homes built on Palestinian land

In 8-1 ruling that affects some 4,000 homes, judges says 2017 Regulation Law violates property rights of Palestinians, provides preferential treatment to settlers at their expense

Jacob Magid is The Times of Israel's US bureau chief

Mariam Hammad, of nearby Silwad, points to a piece of land in the West Bank she says belongs to her but was taken by Israelis to build the outpost of Amona, November 2016 (Raphael Ahren/Times of Israel)
Mariam Hammad, of nearby Silwad, points to a piece of land in the West Bank she says belongs to her but was taken by Israelis to build the outpost of Amona, November 2016 (Raphael Ahren/Times of Israel)

The High Court of Justice on Tuesday struck down on constitutional grounds divisive legislation passed by the Knesset in 2017 that would have allowed the state to expropriate private Palestinian land where thousands of illegal settler homes have been built.

In an 8-1 decision, the top legal body ruled that the Regulation Law “was unconstitutional and ordered it nullified,” saying it “violates the property rights and equality of Palestinians, and gives clear priority to the interests of Israeli settlers over Palestinian residents [of the West Bank],” a statement from the court said.

The judges ruled that the law also did not “provide sufficient weight” to the status of “Palestinians as protected residents in an area under military occupation.”

The legislation has been frozen since it was passed and even Attorney General Avichai Mandelblit refused to defend it before the High Court. It would have allowed the state to expropriate private Palestinian land where experts say 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.

Writing on behalf of the majority, Chief Justice Esther Hayut argued that while the state’s desire to legalize wildcat construction its own authorities had contributed to is “understandable,” and while preventing the demolition of those homes is an important goal, this “does not justify such significant violation of property rights and the rights to dignity and equality that the Palestinian population [deserves].”

View of the Givat Assaf outpost, located near the Jewish settlement of Beit El in the West Bank, on June 5, 2012. (Noam Moskowitz/FLASH90)

In the minority opinion, Justice Noam Solberg argued that while the legislation did indeed violate the property rights of Palestinians, it did not have to be struck down entirely, and claimed that the court instead could have asked the Knesset to limit its scope.

Reactions to Tuesday’s ruling fell along party lines, with right-wingers lambasting the court, while others to their left agreed with the judges’ decision and called for the court to be respected.

The Likud party characterized as “unfortunate” the High Court’s intervention in a law “that’s important to the settlement enterprise and its future.”

But fellow coalition partner Blue and White said in a statement that the formulation of the Regulation Law “contravened Israel’s constitutional situation and the legal difficulties it posed were known back when it was passed in the Knesset.

“We respect the court’s decision and will work to ensure that it will be respected,” the centrist party added.

Nitzan Horowitz, who heads the left-wing Meretz party, similarly praised the ruling, calling the Regulation Law “racist” and “contravening of the most basic moral standards.”

However, he argued that Prime Minister Benjamin Netanyahu’s looming plan to annex large parts of the West Bank “will create a much greater injustice.”

A house in the outpost of Esh Kodesh in the West Bank, on July 20, 2015. (Garrett Mills/Flash 90)

The latter point was not lost on right-wing lawmakers who similarly noted that the quickest fix to their failed attempt at passing outpost legalization legislation will be for Netanyahu to push ahead with annexation in just a few short weeks.

Tuesday’s ruling came as no surprise to most analysts, who have long predicted that the court would nullify the Regulation Law. Indeed, almost immediately after a group of left-wing NGOs and Palestinian local councils petitioned the High Court against the legislation in 2017, the government, led by Mandelblit, began working on alternative legal mechanisms for the legalization of wildcat homes and outposts that don’t require the Knesset or are more narrow in scope.

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 2018, the attorney general approved the use of a legal tactic that could 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 similarly relies on the notion that wildcat Israeli homes on private Palestinian land were built in good faith.

As opposed to the Regulation Law, however, market regulation places the onus of “good faith” on the government. This means that if a private individual built his home on his own, without support from the state, and did not know that it was on Palestinian land, he does not have a right to keep the house.

In addition to market regulation, the Knesset in 2018 began advancing legislation known as Regulation Law 2, which would have formed a Knesset-appointed outpost legalization committee to regulate 66 illegal hilltop communities in the next two years. In the meantime, the bill would prevent those outposts from being demolished and ensure that they receive full government services.

However, elections were called before that legislation could be approved, and it has been frozen since.

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