Israel’s settlement “Legalization Bill”: What it is and what it means

 The concept

Israel’s so-called “Legalization Bill” (aka “Regulation Bill” or “Regularization Bill”) is designed to retroactively legalize Israeli civilian construction in the West Bank (outposts and parts of recognized settlements) built on privately-owned Palestinian land, in violation of Israeli law.

The bill comes in reaction to years of legal efforts, led by Shalom Achshav (the Israeli Peace Now movement) to compel the Government of Israel to meet its obligation to respect and impose the rule of law by removing construction by settlers that violates Israel’s own laws. For years, the government of Israel has resisted these efforts, dragging out cases in courts with repeated requests for delays, allowing illegal construction to grow further.

In recent years, and especially as the clock ticks down toward the removal of the outpost of Amona, it has become clear that the Israeli High Court has no choice but to rule against this illegal construction – and, ultimately, the Government of Israel has no option but to carry out those rulings. This has led settler supporters inside and outside the government and Knesset to scramble to find a “legal” mechanism to protect illegal settler construction and prevent future legal action against it. 

The bill they have settled on permits the State of Israel to expropriate – for all intents and purposes – private Palestinian land in order to “legalize” illegal settler construction on it.

It seeks to do so by tweaking a legal mechanism that exists in Israeli law and is used inside Israel proper (and by governments around the world), allowing the State to take over privately-owned land for public use to serve the public good).

The Legalization Bill would tweak this legal mechanism to allow the State to take over the usage rights, but not the formal ownership, of privately-owned land in the West Bank. It would then mandate that those usage rights be assigned to the settlers, in effect “legalizing” the illegal construction they have already undertaken on the land in question.

The bill in its current form

Presumption of settler innocence: The law is predicated on the presumption that settlers actions in building on private Palestinian land were innocent- i.e., that the settlers believed and had reason to believe that their actions were approved by the government. This, despite the fact that the issue of illegal settlement construction has been highlighted by activists (most notably Shalom Achshav) and by government officials for nearly two decades, and despite the fact that much of the illegal construction has been challenged, publicly, for being illegal from its inception (meaning there is no possible way settlers could believe their actions were legal).

Presumption of government responsibility to the settlers: Based on this presumption of innocence, the bill mandates that the government has a responsibility NOT to impose the rule of law and remove the settlers from Palestinian private land, but rather to resolve the settlers’ predicament by finding a way to allow them to legally stay where they are. Hence, the law would establish that the settlers, as individuals, would be legally exempt from any and all legal repercussions of illegal construction.

Far-reaching application: The bill would apply to land on which settlements and outposts were built, where the bill finds that the settlers enjoyed Israeli government “participation or encouragement.” In effect, this means it would apply to virtually all illegal settler construction across the entirety of the West Bank, since such construction cannot take place without Israeli government support.

Expropriation in all but name: The bill stipulates the following:

• With respect to lands previously recognized by the Government of Israel as belonging to Palestinian residents of the West Bank, but which have been taken without authorization by settlers for settlement construction, the formal ownership of those lands will remain unchanged (they will remain formally owned by their Palestinian owners).
• The Palestinian owner will summarily lose all rights to use his/her land – without recourse.
• Those usage rights will be reassigned to the settlers already using the property.
• The Palestinian owners who lose those usage rights will be entitled to choose between acquiring the rights to use (but not the ownership of) an alternative plot of land, or accepting financial compensation worth 125% of the value of the land, as determined by Israel.
• According to the bill, the expropriation of the right to use the land for settlement construction would be valid “until a political decision is made regarding the status of the area and the Israeli settlement in it.”

Limitation: As currently drafted, the bill would not apply to cases in which the High Court of Justice has issued a final order requiring the government to act against illegal settler construction. It would therefore not apply to the outpost of Amona and a couple of other cases on which the Court has already issued final rulings.   

Current status

The bill was approved by the Israeli cabinet in mid-November 2016, despite the opposition of Prime Minister Benjamin Netanyahu and Attorney General Avichai Mandelblit. After clearing the cabinet, the bill went to the Knesset, where on December 6 it passed preliminary reading – the first out of four Knesset votes on a bill – by a majority of 60 in favor vs. 49 opposing. On December 7 it passed First Reading – the second out of four – by a majority of 58 vs. 51.

At that point, Prime Minister Netanyahu froze the legislative process, pending President Trump's inauguration (so as not to further draw criticism from the outgoing Obama administration). After Trump's inauguration, Netanyahu gave the green light to proceed, and the bill is slated for a vote in the first few days of February, 2017.

The bill is almost guaranteed a majority in the Knesset. It is almost guaranteed to face a Supreme Court appeal, and -- as Defense Minister Avigdor Lieberman pointed out on January 30th, it is also almost guaranteed to be ruled unconstitutional (notwithstanding the fact that Israel does not have a constitution) by the High Court of Justice , meaning that the High Court of Justice will almost certainly annul it.

Problems and possible repercussions

Efforts to pass a law that would retroactively legalize Israeli West Bank settlements built on privately owned Palestinian land is not new. The first initiative emerged in 2012 in the context of the evacuation of five houses illegally built on privately-owned Palestinian land in the settlement of Beit El, near Ramallah. At the time, the legislative initiative did not come to fruition, for a variety of reasons.

The current bill, if passed and not ruled unconstitutional by the High Court of Justice (which, as previously pointed out, is a big “if”), will have far-reaching repercussions, turning thousands of structures built illegally in West Bank settlements and outposts into legal structures, and all the demolition orders issued against them by the military authorities in the West Bank would be null and void.

On the ground, it would be a massive blow to the viability of the two-state solution.

• The bill will almost automatically turn dozens of illegal outposts into full-fledged official settlements, and could add almost 2,000 acres to the State-authorized footprint of West Bank settlements.
• According to Peace Now data, the bill could legalize as many as 3,921 structures built illegally on privately-owned Palestinian land in 72 settlements and 50 outposts. Of them, 2,744 are permanent structures, and 1,177 are prefabricated structures. The bill would legalize many outposts in distant locations, altering their illegal and therefore temporary nature, and thus completely transforming the distribution pattern of West Bank settlements.
• The legalization is likely to attract many more settlers to these outposts-turned-settlements and therefore further accelerate the growth of the settler population in the West Bank.

Politically, the bill is also fraught with problems that could have immense repercussions on Palestinian human rights, on Israeli democracy, on the Israeli Right’s push to annex the West Bank, and on Israel’s international standing. Most notably:

• The bill strives to permit what is clearly prohibited by international law: the confiscation of privately-owned land by an occupying military power for a purpose that is not military. The international law of belligerent occupation explicitly prohibits such an act by the occupying power, and Israel’s High Court of Justice has upheld this principle and has applied it to Israel’s rule of the West Bank.
• The bill severely violates Palestinians’ rights to property, a basic human and civil right. The authors of the bill concede that it does, but argue that the violation is reasonable and proportional. The international community is certain to argue otherwise.
• The bill is discriminatory. It explicitly discriminates against Palestinian residents and in favor of Israelis residing in the West Bank. It only legalizes Israeli illegal construction but not Palestinian illegal construction (indeed, the fact that the bill is based on a legal mechanism designed to expropriate land for “public use” is telling, since, like with State Land in the West Bank, the only “public” that benefits from Israeli policies is the settlers). Furthermore, it sets unreasonably high demands from the Palestinian land owner in terms of proving his or her ownership.
• The bill reaches far beyond past Israeli legislation in regards to the West Bank. In the past, Israeli legislators were very careful to only extend Israeli laws to the settlers themselves, individually, so as to avoid the appearance of direct Israeli legislation in an area that is not subject to Israeli sovereignty. Direct and separate Knesset legislation regarding the West Bank, particularly when it applies to the Palestinians residing there, is de facto annexation of the West Bank. Israel thus exposes itself not only to international criticism but to international sanctions for violating international law by annexing an area that was acquired in an armed conflict.
• Even short of international accusations of annexation, the bill exposes Israel to world criticism and possible sanctions by being perceived as violating another tenet of international law: the prohibition on the occupying power’s transferring – directly or indirectly – its own civilians into the territory it occupies. By passing a law that explicitly discriminates in favor of Israeli civilians in the West Bank, Israel will likely be perceived as incentivizing its citizens to transfer to the West Bank. The bill itself explicitly states that its objective is to “regulate and enable the continued establishment and development of the Israeli settlement in Judea and Samaria.”

Proponents and opponents of the bill

The bill enjoys broad support among Israeli right-wing politicians, particularly among political parties that seek the support of the settlers’ lobby. In fact, Israeli political pundits argue that these politicians enthusiastically support the bill because they know that they would face almost no repercussions. While the bill is popular with the settlers, it is almost certain to be shot down by the Supreme Court.  The Israeli public is split on this bill. A poll published on December 5 2016 shows that 46% of Israeli Jews support the bill and 43% oppose it.

Prime Minister Netanyahu has indicated that he does not support the bill, as has his chief legal adviser, Attorney General Mandelblit. Mandelblit was quoted as saying that the proposed legislation is “unreasonable,” that it violates the rule of law, that it is a severe violation of the right to property, and that it is undemocratic. Mandelblit has officially informed Netaynahu that he will not defend the bill in the Supreme Court. The Cabinet discussed the option of hiring private attorneys to do that. 

Other opponents of the bill – both Israeli politicians and legal experts – have focused not only on the bill’s violation of Israeli law and the rule of law, but also on its violation of international law, pointing out the high likelihood that it would expose Israel to international criticism and sanctions.

The Obama administration strongly opposed the bill. State Department Deputy Spokesman Mark Toner on December 6 said: “This legislation, if it is enacted, would be a dramatic advancement of the settlement enterprise, which is already greatly endangering the prospects for a two-state solution.” He added, “We have also been troubled by comments from some political figures in Israel that this would be a first step toward annexation” of the West Bank to Israel." Other world governments, particularly European, also publicly oppose the bill.

As of January 31, 2017,  the Trump administration has not commented on the bill.