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Legal scholars debate Israel’s new land law

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Settlers in a West Bank outpost. FILE PHOTO

Israel’s Regulation Law, passed by the Knesset on Feb. 6, has divided the Israeli public, prompted heated rhetoric on all sides and is now facing a challenge in the Supreme Court.

On Feb. 14, two legal experts debated the merits of the law in a conference call organized by the Centre for Israel and Jewish Affairs (CIJA).

Former Labor MK Einat Wilf and Prof. Avi Bell took opposing positions on the law, which legalizes existing settlements built on privately held Palestinian land.

Bell, a member of the law faculty at Bar-Ilan University, argued there’s precedent in countries that have adopted British law concerning “adverse possession,” in which residents are given legal title to land on which they had trespassed.

The issue has been litigated in the United Kingdom and the case was appealed to the European Court of Human Rights. Both the top British and European courts upheld the rights of the trespassers, Bell said.

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The Israeli law, unlike laws elsewhere, provides for compensation for the original owners, he added.

Wilf argued the Knesset could not apply Israeli domestic law to the disputed territories. (A similar argument has been advanced by the country’s president, Reuven Rivlin.)

“This is the first time that the parliament of Israel is legislating for people who are not voting for the parliament,” she said. “This is the undoing of Israeli democracy.”

What’s more, Wilf continued, MKs who voted for the measure are “cowards,” since they didn’t really support it and were hoping to score political points by doing so. They expect the Israeli Supreme Court will overturn the law, saving them the effort to oppose it in the Knesset, she suggested.

Wilf said even if the Supreme Court strikes down the law, it will give Israel a black eye. She traced the history of land use in the territories, noting that Israel’s claim settlements are legal can be backed up by citing a League of Nations decision giving the land to the Jews. But she distinguished from building on public, government-owned land and privately held property.

She also argued that in the past, when privately held land was expropriated, it was done to further security measures or for a public purpose, not to benefit individual Israelis.

Wilf argued the West Bank territories were never annexed by Israel and are under the jurisdiction of the military commander. As a result, the Knesset is not sovereign there.

Bell rejected Wilf’s argument that Israel cannot legislate for Palestinians in the West Bank, saying it has done so for more than 50 years and discounted Wilf’s distinction between military government and parliamentary government there.

“It’s bizarre to say that the only way to defend democracy is that all sovereign power is held by the army,” he said.

As the one-hour debate and question period came to a close, both speakers focused on policy considerations.

The “rest of the world won’t cut Israel any slack” over the distinction between army control and that of the Knesset, Bell said. No matter what Israel does in the territories, it will always be seen as wrong.

Bell said opponents of the law are trying to “frighten” the Israeli public by claiming the military commander must retain jurisdiction in the territories, otherwise Israel must accept West Bank Palestinians as citizens for Israeli law to apply there.

Wilf said the idea that the 1967 Green Line marks the limit of Israeli sovereignty is not about scaring anyone. She said by applying the law and seizing Palestinian-owned property, Israel will present an image of pursuing a “greedy settlement policy.”

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Settler advocates who support the law see it as preventing eventual partition of the land, but the Jews are a small people who have never adopted an all-or-nothing approach, she said, adding that Zionism’s success stems from compromise, while the Palestinians held out for everything and got nothing.

The Regulation Law was passed by the Knesset by a 60-52 vote. It affects the status of 2,000 to 4,000 residences in 16 settlements that were built years ago with government approval on Palestinian-owned lands, but which were not subject at the time to claims from absentee owners.

Several Palestinian municipalities and human rights groups are challenging the legislation before the Israeli Supreme Court. The law is so controversial that  Attorney General Avichai Mandelblit stated he will not defend it on behalf of the government because he deems it unconstitutional and a breach of international law that may lead to a suit against Israel at the International Criminal Court.