State: There’s no alternative to outpost legalization law, warts and all
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State: There’s no alternative to outpost legalization law, warts and all

But representative of the attorney general, who opposes the law, says other legal measures should be found to retroactively approve thousands of illegal homes

Jacob Magid is the settlements correspondent for The Times of Israel.

The High Court of Justice judges arrive for a hearing regarding the Regulation Law at the Supreme Court in Jerusalem on June 3, 2018. (Yonatan Sindel/Flash90)
The High Court of Justice judges arrive for a hearing regarding the Regulation Law at the Supreme Court in Jerusalem on June 3, 2018. (Yonatan Sindel/Flash90)

Defending legislation that seeks to legalize wildcat West Bank outposts, the state’s legal representative told the High Court of Justice on  Sunday that he acknowledges that the law is imperfect, but there are no viable alternatives.

“It’s possible to find a flaw here and there; but in the end, there is no other solution” that can legalize thousands of homes in the West Bank where the lives of thousands Israeli families are “paralyzed” due to their current legal limbo, Harel Arnon argued.

Arnon is a private attorney hired to represent the state at the High Court hearing on the so-called Regulation Law after Attorney General Avichai Mandelblit announced that he would not defend the legislation because it ignores the rights of Palestinians.

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 125 percent financial compensation for the land.

Harel Arnon arrives to defend the Regulation Law on behalf of the state at the High Court of Justice on June 3, 2018. (Yonatan Sindel/Flash90)

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.

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

Moreover, opponents point out that while the Knesset has the authority to pass laws that relate to the Israeli population, the same is not the case for property in the West Bank which is under the authority of the military.

However, the state has argued that Israeli residents of the West Bank are also considered to be the “local population,” whose rights deserve protecting as well, even at the expense of the Palestinian population.

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.

Meanwhile, the Attorney General Office’s representative at the Sunday hearing echoed the arguments made by Mandelblit over the past year. Avner Helman argued that the legislation violates the property rights of Palestinians and the 1992 Basic Law: Human Dignity and Liberty.

Supreme Court President Esther Hayut at a hearing regarding the Regulation Law at the Supreme Court in Jerusalem on June 3, 2018. (Yonatan Sindel/Flash90)

“Our position is that the damage of the Regulation Law is disproportionate and unconstitutional, and therefore there is no escaping from canceling it,” Helman said.

While the state representative acknowledged that the legislation may go against international law by stripping Palestinians of their property rights, he argued that domestic law takes precedence over international law.

Arnon also argued that the legislation represented an economic win for Palestinians, who until now have not been compensated for land that has been expropriated for the construction of outpost homes.

However, he contended that all of the houses in question were built in good faith by settlers.

“I do not know of a case in which they took control of private land and expelled its owners. These are lands that were uncultivated and unregulated, and there was a basis for assuming that they would become state land in the future,” the attorney argued.

Justice Uzi Fogelman did not accept the argument, responding that “if the reality were that simple there would be no need for such (complex) arrangements” to legalize the wildcat homes.

Arnon offered the expanded panel of nine judges three options to chose from in the event that they reject the state’s position: to authorize the Regulation Law regardless under the recognition that a very difficult problem can only be solved by a flawed solution; to reduce the scope of the law rather than disqualify it completely; or to delay the rejection and give guidelines to the Knesset for how to pass a proposal that could withstand the test of the court.

A picture taken from the outskirts of the West Bank city of Nablus shows a view of the illegal settlement outpost of Havat Gilad on February 2, 2018. (AFP Photo/Jaafar Ashtiyeh)

Arnon argued that the state “has spoken in two voices”  on the issue, by financing the infrastructure and expansion of these wildcat Israeli communities only to recognize the illicit behavior after the fact.

The Knesset’s legal adviser Eyal Yinon adopted a similar position to that of Arnon, telling the High Court that “extraordinary measures must be taken to address the real distress” being endured by settlers. “If the law is disqualified the problem will come back again and again,” he argued.

Helman from the Attorney General’s Office said that the thousands of homes built illegally on Palestinian land are not in danger of demolition, but asserted that that reality did not make the Regulation Law any more legal.

The attorney general has argued that other legal measures are available to regulate hundreds, if not thousands, of wildcat homes rather than involving the Knesset, which complicates Israel’s standing from an international law standpoint.

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