Since I wrote about the possible evacuation of Amona a couple of weeks ago, the “Arrangements Law” or Regulation Bill or Settlements Bill (take your pick), intended to regulate once and for all the legal status of the settlements and outposts, has run full steam ahead through the Knesset and its committees, and looks like it will pass into law.
This of course is an extremely positive event, but – this being Israel – its passage into law is still doubtful.
Let’s start with some background. This JPost analysis says that the settlement bill is a revolutionary moment in Israeli history:
A bill which could be tantamount to annexation of Area C of the West Bank and which overturns almost 40 years of Israeli judicial rulings on private Palestinian property rights, is set to head to the Knesset for a first reading on Wednesday.
If it passes into law, the legislation would be the most significant event in the settlements movement since the 2005 withdrawal in which 25 settlements in Gaza and northern Samaria were destroyed.
That seminal event was about territorial withdrawal. This legislation in contrast, shores up the Israeli presence in Area C, by legalizing settler homes and allowing for further development on many of those property lots.
It would also mark one of the few time that the Knesset has legislated a non-personal law, that applies to Area C. The application of Israeli law to territory, is typically understood to be a sign of annexation.
It is for this reasons, that non-personal laws in Judea and Samaria are regulations put in place through military orders and not the Knesset.
Known as the settlement bill, or the regulations bill, the legislation is designed to resolve the issue of 4,000 illegal homes built on private Palestinian property.
The bulk of the homes, 3,200 of them, are located within already existing settlements and cannot be returned to the Palestinian owners.
Almost a year after taking office, Prime Minister Benjamin Netanyahu held a critical policy meeting in which he determined, in keeping with Israeli law, that homes on private Palestinian property would be removed.
But in practice, unless forced to do so by the High Court of Justice, his government has had no desire to remove those homes, many of which were built decades ago.
At the same time, the homes cannot be legalized because they are built on private Palestinian property.
The settlement bill would retroactively legalize those homes thereby solving a problem for the Israeli residents of Judea and Samaria.
But in so doing, the Knesset would be simultaneously stripping Palestinians of their full property rights.
The bill divides the lots on which the 4,000 homes are located into two categories; those with registered deeds and those without.
Those lots for which there already are registered title deeds, or which can be registered to owners, would be transferred to the Custodian of Abandoned properties until such time as a resolution to the conflict with the Palestinians is found.
Until then, the owners can receive financial compensation that amounts to 125% of their property’s value or an alternative property lot.
In sanctioning the construction of these 4,000 home, the legislation overturns the 1979 High Court of Justice ruling on Elon Moreh, which prohibited the construction of settlements on private Palestinian property.
In addition, it prohibited the seizure of such property for civilian use.
Even the most right-wing of legal experts, Plia Albeck, known as the mother of the settlement movement, respected that ruling.
The bill would wipe out dozens of High Court of Justice petitions filed by left-wing groups on behalf of Palestinian landowners hoping to reclaim their land.
It would also allow for the possible legalization of 55 West Bank outposts, either as new settlements or new neighborhood of existing ones. While the homes in those outposts would be legal, additional bureaucratic steps would be necessary to determine the status of the community itself.
The legislation needs three readings before it becomes law and then it must withstand a challenge to the High Court of Justice.
Given this complicated background it’s no wonder the High Court is objecting, but there are counter-arguments too:
Attorney General Avichai Mandelblit has already ruled that the law is unconstitutional, violating both Israeli law and international law. In particular, his office has explained that Israel has a responsibility to protect the private property rights of Palestinians and that land can only be seized for “public good.” His office has explained that this situation does not meet the criteria for public good.
The High Court of Justice is expected to strike it down. But its proponents have argued that the illegality of the issue is not a fact, but rather based on an understanding of law that holds that Area C is occupied territory. This understanding, the proponents have argued does not reflect the government’s belief which holds that technically speaking the laws of occupation to not apply to Area C of the West Bank.
Change the legal understanding of the area, and this legislation would be considered legal, they have argued.
More to the point, they argue, the Jewish State has a historic right to that territory, which is also strategically necessary for defense.
All of this is without mentioning the added negative factors of the international community for whom Israel can do no right, and possibly the ICC.
The Times of Israel adds other details:
The legislation explicitly refers to structures in three settlements that have been subject to legal efforts to demolish buildings constructed on private land — Eli, Netiv HaAvot, and Ofra. It says that all administrative proceedings in these three settlements will be frozen with the enactment of the law, and within the first 12 months, the government must determine whether these structures were built in good faith and with government assistance. If they are — the Regulation Bill will apply to these areas, it stipulates.“In many cases, settlements were built in agreed-upon areas, and were even encouraged or built in coordination with the state, or were built in good faith by the Israeli residents, who were unaware that this was privately-owned land,” the proposal says. “Leaving the situation as is in these settlements or their destruction is liable to seriously, unjustifiably harm those who have lived there for many years. Therefore, the regulation of these settlements is necessary.”
And now to the practicalities. The settlements bill was set to pass its first reading in the Knesset after passing preliminary readings in the cabinet, despite the controversy surrounding it from both Left and Right. The Left consider it a cover for a land-grab, while the Right consider it a “prize for criminals” since Amona itself has been removed from the legislation and therefore will be evacuated no matter the outcome of the legislation.
From the JPost link above:
The meeting of the special committee, led by MK Nissan Slomiansky (Bayit Yehudi), took place on Tuesday evening, a day after the settlement bill passed a preliminary reading for the second time.
The legislative procedure was restarted after provisions that made the bill applicable to Amona were removed.
Just as the MKs retraced their steps in the legislative process in order to bring the latest version of the bill to a first reading, they repeated their same arguments about it.
“This whole bill was born in sin,” MK Yael German (Yesh Atid) said. “You’re betraying the values of justice, of human dignity – everything Israel was built on. The residents of Amona touched my heart. Why didn’t Netanyahu find a solution for them in the last two years?” MK Revital Swid (Zionist Union) called the bill a “fraud” and accused the Right of tricking its voters.
Arguing in favor of the bill, MK Bezalel Smotrich (Bayit Yehudi), one of the bill’s sponsors, took issue with opposition lawmakers and called the legislation “a prize for criminals.”
“The bill is meant to prevent an injustice. People were sent by the state to live on land that is not state land, and the state is taking responsibility for mistakes it made towards its residents,” he explained.
“Yes, the purpose is to develop the settlements. That is a political goal of this rightwing government.”
The settlement bill is meant to legalize homes that were built on private Palestinian land with some kind of government support, such as building roads or hooking them up to utilities. The legislation would allow the government to pay the landowners for use of the land, rather than forcing those currently living on it illegally to move.
With regard to the possible repercussions from the ICC, a lawyer-activist explains, in a very interesting analysis, why there is nothing to fear from the Hague:
The latest spin from Prime Minister Binyamin Netanyahu’s circles – that the Regulation Law will lead the State of Israel to the International Court of Justice in The Hague – is groundless, writes attorney-activist Aviad Visoly, a former head of the Haifa area Likud chapter.
Visoly writes that the entire idea of The Hague taking up the case of the Regulation Law is far removed from reality. In an article released Saturday night, Visoly explains that two international courts function in The Hague: “One is the International Court of Justice, which has already dealt with the Jewish settlement enterprise in Judea and Samaria in the past regarding the confiscation of lands for the construction of the anti-terrorism fence/wall. The President of this Court, Prof. Stephen Schwebel, a past judge on the Hague’s International Court of Justice, has written that because ‘Jordan’s seizure and subsequent annexation of the West Bank and the old city of Jerusalem were unlawful,’ Israel therefore did not illegally “conquer” these areas.
On the other hand, Israel’s liberation of the areas was quite acceptable, because “a state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense.”
In addition, Jordan has already ceded its claims on Judea and Samaria, voluntarily in 1988 and in a peace agreement with Israel in 1994.
The ICJ did rule once against Israel’s ‘occupation’ in the past, but it relied chiefly on rulings by Israel’s own Supreme Court describing Israel’s presence in Judea and Samaria as a “belligerent occupation.” Netanyahu should “first fix up his own Supreme Court if he is worried about The Hague,” Visoly writes.
Visoly notes that when the ICC ruled on the wall/fence, Israel’s response was to ignore it and continue to construct the barrier. Other nations also ignored the ruling, as did the UN Security Council. All the more so, then, regarding the Regulation Law, which does not involve confiscating lands and is therefore “pareve, balanced and totally kosher.”
The second court in The Hague is the ICC, the International Criminal Court established by the Rome Charter – to which neither Israel nor the U.S. is a party. Several African nations have also opted out of the Rome Charter of late, charging that the court is “racist.” With its prestige already at a low, “it is quite doubtful,” Visoly writes, “that the ICC will now wish to get involve in cases that will risk it being charged with anti-Semitism to boot.”
Visoly has more. He notes that the topic of the Regulation Law – legislation regulating private property – has nothing to do with international law. In addition, if the ICC decides that territory can be conquered not only from a “state” but also from a “people,” most other states in the world will face similar charges.
In the past, Israel legally and officially annexed the Golan Heights, which was liberated from a sovereign country – “and the world continued to revolve on its axis as usual.”
Justice Minister Ayelet Shaked explains why Israel got into this mess in the first place: It is because previous governments gave idiotic answers to the courts:
Justice Minister Ayelet Shaked said that the struggle over Amona was allowed to reach the point where a solution was found only weeks before the town was scheduled to be destroyed because previous governments gave “idiotic answers” to High Court whenever the issue was raised.
“We inherited a ruling [which came from] the idiotic answers previous governments gave the High Court.” Shaked told journalist Ariel Sigal of Army Radio. “The answers previously given about Amona were ‘we know there is a demolition order so we agree that it should be demolished.'” Of course the courts would rule in favor of demolition if the government said it was willing to accept it, she said.
And what of the residents of Amona itself? Though they are promising not to go willingly, a solution has been found for them, which is to move a few hundred yards up the road, nearer to the community of Ofra:
According to a Ynet report published Wednesday, the 40 families living in Amona, which the High Court of Justice ordered demolished because it was built on private Palestinian land, will be accommodated in temporary housing in Ofra. A permanent settlement will be established seven miles to the north, next to the existing Israeli settlement of Shvut Rachel.
The details of the plan were being finalized by the Defense Ministry’s Civil Administration, the military organ responsible for governing the West Bank.
According to Ynet, the plan entails putting up 20 families in temporary houses on open plots in Ofra, while another 20 families will reside in a school. The attorney general’s office told the website that the plan was still being assessed, and that the Defense Ministry was still planning alternatives. A defense official said that the above-mentioned plan was the most realistic option.
An earlier plan to relocate Amona residents hit a legal snag Tuesday, less than three weeks before a court-ordered evacuation.
But that plan, conceived by Attorney General Avichai Mandelblit, was reportedly off the table after the anti-settlement group Yesh Din lodged legal appeals against two of the three prospective future sites, Channel 2 news reported.
The plots in question belong to “absentee” landlords, a term usually referring to Palestinians who left the country before or during Israel’s capture of the area in 1967 and whose identities are unknown. They are administered by the state’s Custodian of Absentee Properties, a legal status that Mandelblit suggested would make the temporary use of the lands less problematic under law.
Channel 2 cited a “senior legal source” as saying it was almost certainly not possible to overcome the appeals by the late-December deadline.
One could almost think that the Left do not want the Amona residents to be rehoused at all! Nah… surely not!
And as I noted earlier, Israel’s self-proclaimed and soon-to-be-gone saviour, John Kerry, slammed the settlement enterprise as he accused Israel of subverting (yes! he actually used that word!) peace. As I have repeatedly said, “peace” does not mean what he thinks it means.
We just have to pray that this settlements bill, or Arrangements Bill as it is officially called, will indeed make its way safely through the labyrinth of Knesset legislation and overcome the hurdle of the High Court. It would be almost criminial, not to mention a crying shame for the generations, if it is thwarted at the last minute.
Former Bayit Yehudi MK and Hevron resident Orit Struk called the Bill almost a miracle:
“The way the world works is those who have experienced a miracle very rarely even realize a miracle happened.
“And so, for the glory of Amona’s heroic residents, and in deep gratitude to the Knesset members and ministers who invested their time, energy, and talent into making this historical moment happen, “I will mention the Regulation Law’s outstanding accomplishments (and until recently, I did not believe the Regulation Law would ever pass):
“It’s not just removing the threat and legalizing thousands of Jewish homes, and it’s not just about quitting the ugly game we’ve been forced to play with the Israeli Supreme Court. The law also brings good news.
For the first time:
1) The Knesset is the one deciding Judea and Samaria’s future,
2) Israeli law recognizes Israelis in Judea and Samaria as “residents of the region,”
3) Israeli law recognizes Jewish towns in Judea and Samaria as a “public need,”
4) The Knesset recognizes Israel’s responsibility for the many towns in Judea and Samaria which have not yet been legalized. Their residents are not “criminals” but citizens whose towns the State must legalize.
“None of this was even available to Amona’s residents. There’s no doubt that this law and its accomplishments have made history.
“It hurts to know that Amona’s residents will not merit to reap the fruits of their own labors, and will have to make do with an upgraded version of the absentee property solution. (The upgraded version, at least, is much better than the previous versions. But still, we all hoped Amona’s residents would be able to remain in their homes.)
“This is a crossroads which reminds us of the founding of the State of Israel, within its tiny 1948 borders. It was a huge historical milestone on the one hand, but it hurt that not everything we set out to do was accomplished.
“In my opinion, we must not allow the hurt (which definitely exists and deserves to be recognized) to prevent us from being happy and grateful for the historical milestone we have merited achieving.”
Halevai (if only!) the Law will go through and we will enter a new phase in Jewish history, one where Jewish indigenous rights are finally recognized by our own government if not by the rest of the world.