High Court set to hear petitions against outpost legalization law

Supporters of controversial Regulation Law, which has been frozen since being passed by Knesset, argue that system ‘stacked against’ legislation

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

View of caravan houses in the illegal West Bank outpost of Amona on January 16, 2017. (Lior Mizrahi/Flash90)
View of caravan houses in the illegal West Bank outpost of Amona on January 16, 2017. (Lior Mizrahi/Flash90)

The High Court of Justice will meet Sunday for a hearing on a pair of petitions filed against the so-called “Regulation Law,” which seeks to legalize wildcat West Bank outposts.

Passed by the Knesset in February 2017, the legislation allows the Israeli government to expropriate private Palestinian land ex post facto where illegal outpost homes have been built, provided that the hilltop communities were established “in good faith” or had government support and that the Palestinian owners receive financial compensation for the land.

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

The local council heads of 23 Palestinian villages along with 13 rights groups led by Yesh Din, Peace Now and the Association for Civil Rights in Israel submitted two High Court petitions against the law, arguing that it violates the 1992 Basic Law: Human Dignity and Liberty.

Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)

The petitioners argue that the legislation does not offer those Palestinians uninterested in compensation the legal means to oppose the expropriation.

Yesh Din spokesman Gilad Grossman argued that while the Knesset has the authority to pass laws regarding the Israeli population, the same is not the case for property in the West Bank which is under the authority of the military.

The controversial legislation has hit several snags to date.

Even before it was passed, Attorney General Avichai Mandelblit announced that he would not defend the legislation, saying it ignored the rights of Palestinian residents of the West Bank granted to occupied populations under the Fourth Geneva Convention.

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

Last May, Haaretz revealed that Arnon’s own home in the Elazar settlement is being built illegally on land that had been designated strictly for military purposes.

Attorney Harel Arnon discusses the legal issues of Israeli presence in the West Bank at a conference in New York on August 12, 2014. (Screen capture/YouTube)

The Regulation Law has yet to be employed to legalize wildcat settlement homes as the High Court has frozen the legislation pending a ruling on the two petitions filed against it.

Preliminary proceedings regarding the petitions have suggested that the legislation still faces an uphill battle.

In his August 2017 legal response to the petitions, Arnon argued that the legislation, if implemented, would actually benefit Palestinians.

He stated that the law would ensure just compensation for Palestinian landowners who would otherwise receive the death penalty from the Palestinian Authority for selling their land to Jews.

“The Regulation Law balances the obligation of the government towards thousands of citizens who have relied in good faith on government action and a minor infringement of property rights, with increased compensation to the landowners,” Arnon wrote on behalf of the state.

But the High Court appeared unsatisfied with Arnon’s arguments, ordering the state in December to put together a new response justifying the legality of the law before a hearing could be convened.

Attorney General Avichai Mandelblit speaks during a farewell ceremony for outgoing Supreme Court chief justice Miriam Naor in Jerusalem on November 6, 2017. (Flash90)

In a joint statement from the Palestinian local council heads and left-wing NGOs ahead of Sunday’s High Court hearing in front of an expanded nine-judge panel, the petitioners stated that “it seems that the government is investing more efforts in trying to legitimize the occupation and the theft of land from Palestinians in favor of Israeli construction offenders than in any field for the benefit of all Israeli citizens.”

A Wednesday ruling from Supreme Court President Esther Hayut appeared to throw an additional wrench in the state’s hopes to save the legislation.

Hayut ruled that the state cannot rely on a precedent set by one of her colleagues last year that appeared to have green-lighted the seizure of private Palestinian land solely for use by Israeli settlers.

Hayut was responding to a petition from the Yesh Din rights group, which called for an additional hearing on the 2017 ruling by Justice Salim Joubran in which he wrote that “the Israeli residents of the area (West Bank)… are also among the civilian population in the area,” and that therefore the state “is obligated to act for their welfare… even by violating the property rights” of the original Palestinian land owners.

While the chief justice rejected the Yesh Din petition, she made a point in commenting on Joubran’s controversial, unprecedented ruling. “It appears that the ruling contradicts previous laws in this context, and it contains both novelty and difficulty,” she wrote.

Moreover, Hayut stated that the section of Joubran’s ruling now in question did not constitute “a binding law,” but was rather a “mere passing statement,” and future petitions regarding the seizure of vacant private Palestinian land for the exclusive use of settlers would have to take that into account.

Legal advisers in various government ministries were said to have been planning on utilizing Joubran’s ruling to argue the legality of the Regulation Law as well as other government measures aimed at salvaging the thousands of settlement homes found to have been built on private Palestinian land.

View of the West Bank outpost of Havat Gilad, January 10, 2018 (Miriam Alster/Flash90)

While Hayut’s Wednesday ruling does not disqualify the utilization of the precedent set by Joubran, Arnon and other government legal experts will be forced to argue why it does not, in fact, contradict previous property laws on the matter, as the chief justice argued.

For his part, Arnon told The Times of Israel that Hayut’s ruling will not directly impact his argument in favor of the Regulation Law. “Joubran had ruled on cases in which the military commander sanctioned expropriation, not in cases in which the Knesset is the one authorizing the expropriation,” he said.

Moreover, he argued that international law comes secondary to the local law of the land and that therefore, assertions that the legislation violates international law are “irrelevant.”

Ahead of Sunday’s hearing a group of right-wing activists have launched a “stacked deck” campaign against the High Court, arguing that the court is “180 degrees different from that of the elected officials and the majority of the public.”

“Unfortunately, the High Court of Justice has proven again and again that petitions filed by Palestinians and left-wing NGOs are determined in advance and the game is rigged. We hope that in the upcoming hearing on the Regulation Law, the judges will prove this not to be the case,” the activists, identified as the Forum of communities in support of the Regulation Law, wrote in ads placed in various Israeli newspapers.

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