The true significance of Israel’s settlement legalization law
The flurry of hand-wringing over the Regulation Law has largely missed what may be its most dramatic consequence — that it makes it harder for Israel to stick to its longstanding policy of permanent indecision in the West Bank 
Haviv Rettig Gur - The Times of Israel

Education Minister Naftali Bennett at the weekly cabinet meeting at the Prime Minister's Office in Jerusalem, on January 22, 2017. (Alex Kolomoisky/Pool) 

Criticism of the Regulation Law that passed Monday in the Knesset has been visceral and widespread. It comes from Israeli politicians on the right, as well as on the deepest left; from pro-Israel advocates, and from Palestinian officials; from Israel’s own attorney general, as well as European and Muslim-world governments; and even from some Knesset members who actually voted for it.

All seem to believe the law, which authorizes retroactively Israeli settlement homes built illegally on privately owned Palestinian land, is a watershed moment in the Israeli-Palestinian conflict. But with so many voices vying to explain precisely why it is so bad, it can be easy to miss, or to misunderstand, the indigenous Israeli political impulses that forged it, and thus to misrepresent what it means for Israel’s presence in the West Bank.

In an important sense, the Regulation Law changes very little. Under Jordanian land law that still applies in the West Bank – Israel never applied its own civil law, and so the territory is run under a combination of various legal systems imposed by past rulers and IDF orders issued since 1967 – the governing authority in the territory is already permitted to seize privately owned land for public benefit. The Jordanian law is far more expansive and permissive as to what constitutes “public benefit” than is Israeli civil law within Israel’s borders, and more even than what Israel’s military administration has actually done in the West Bank.

And so the new Regulation Law does not, as often claimed, suddenly allow the Civil Administration, the Israeli agency administering the West Bank under the army’s auspices, to seize private property for Israeli settlements. The Civil Administration is already allowed to do so, at least on paper (and leaving out for the moment the rather significant question of international law and its obligations). Rather, the Regulation Law requires that it do so.

In places where Israelis built settlements on privately held Palestinian property in good faith – i.e., without knowing it was privately owned – or received the government’s de facto consent for squatting there, the Civil Administration is now forced to carry out the seizure in the squatters’ name in exchange for state compensation to the owners equal to 20 years’ rent or 125 percent of the assessed value of the land.

Jewish Home party leader and Education Minister Naftali Bennett, right, party colleague and Justice Minister Ayelet Shaked, left, and opposition leader MK Isaac Herzog (Zionist Union) in the Knesset just prior to the passage of the Regulation Law that retroactively legalizes West Bank settlement homes built on private Palestinian property. (Yonatan Sindel/Flash90)

Here lies the most important fact of the law from the perspective of the internal Israeli debate: that it is not actually directed against the Palestinian owners (though, of course, it affects them most of all), but against the Israeli state.

For decades, the Israeli left accused state agencies of coddling and abetting the settlement movement. In 2005, the government of Ariel Sharon published the Sasson Report, written by a former senior state prosecutor, Talia Sasson, that detailed these agencies’ collusion in illegal building in the West Bank.

As one right-wing supporter of the Regulation Law noted to The Times of Israel this week, the first few hundred homes built in the Ofra settlement in the northern West Bank during the 1980s and 1990s were constructed without appropriate zoning or approval of any kind.

But in the wake of the report, and in keeping with the policies of various governments since the late 1990s, enforcement of zoning and planning requirements has grown much more stringent. It is no longer easy to build without permission in places like Ofra or Beit El. Critics of the settlements talk constantly about their unrelenting growth, but actual residents of the more ideologically rooted settlements nestled deep within the West Bank feel the opposite, that their growth is being choked by a state that even under right-wing rule views them as an enemy.

Ironically, nowhere is this tension between the settlement movement and the state clearer than in the way the law justifies the seizure of land. To authorize the seizure, article 3 of the law requires that either of two conditions be met: the aforementioned “good faith” requirement, “or that the state gave its agreement to the [settlement’s] establishment.”

This is an important “or,” as it means seizure is possible even in bad faith, where the land was explicitly settled in the full knowledge that it was privately owned by Palestinians, as long as state support can be demonstrated.

A view of houses in the Israeli settlement of Ofra in the central West Bank on November 17, 2016. (Lior Mizrahi/Flash90)

And article 2 of the law ensures that it won’t be hard to demonstrate such support. It defines “agreement of the state” thus: “Explicitly or implicitly, beforehand or after the fact, including assistance in laying infrastructures, granting incentives, planning, publicity intended to encourage building or development, or financial or in-kind participation” in the settlement’s establishment.

If any state agency paved a road, provided electricity or, arguably, merely sent security or law enforcement forces to protect a settlement, the squatters may be able to claim “agreement of the state.”

The Sasson Report put the question of unacknowledged government assistance to illegal settlement construction on the national agenda as an explicit first step to stopping that assistance. The Regulation Law flips that intention on its head, turning that governmental support into the legal reasoning for retroactively authorizing the very construction the report was intended to help freeze.

It is hard to imagine that this perfect inversion of the Sasson Report is accidental. The Regulation Law’s earliest drafts were written by advisers to Jewish Home MK Betzalel Smotrich, the former head of Regavim, an Israeli right-wing advocacy group that works on issues of land rights and settlements. That is, it was formulated by lawyers deeply familiar with the issues and questions raised by the Sasson Report, and with Israeli settlement policy since its publication.

‘Occupied’

For Attorney General Avichai Mandelblit, however, the problems posed by the law go deeper than this cantankerous shot across the bow of the left-right culture war.

In its very first sentence, the law proclaims: “The purpose of this law is to bring order to the settlement in Judea and Samaria and to allow its continued establishment and development.”

Attorney General Avichai Mandelblit attends a Constitution, Law and Justice Committee meeting in the Knesset, July 18, 2016. (Miriam Alster/Flash90)

For 50 years, Israel has officially argued that the West Bank is not “occupied” as the term is understood in the Fourth Geneva Convention, but merely “disputed.” The legal reason – that the Convention defines as “occupied” only tracts of land taken by a state in wartime from another state that had sovereignty there; the West Bank was not sovereign Jordanian territory when Israel captured it from Jordan in 1967 – may be convincing to many Israelis, but sways almost no one else on Earth.

This argument also has the thorny disadvantage of leaving unanswered the rather fundamental question of what, exactly, is the status of millions of Palestinians living in this non-occupied territory who are not, and don’t want to be – and Israelis don’t want them to be – citizens of Israel.

Since 1967, Israel’s response, both in international forums and to its own High Court, has been to distinguish between the people and the land, applying to the Palestinian population, but not to the land, the protections of “occupation” granted by the Fourth Geneva Convention. (This distinction is not wholly innovative. The Convention’s own broad definition of “protected persons” is, simply, “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”)

New Israel Fund president Talia Sasson. (CC-BY-ND Ralph Alswang/Flickr)

Mandelblit’s complaint is a simple one. The Regulation Law charges into this delicate and, for Israel, indispensable legal construct like a bull in a china shop. It marks the first direct Knesset legislation of a civil law that applies directly to Palestinians in the West Bank, and it does so without even conferring on them, as Israel did in the past in East Jerusalem or the Golan Heights, the broader edifice and legal protections of Israeli civil law more generally.

“A state can only legislate where it is sovereign,” Talia Sasson told The Times of Israel in an interview Tuesday. “The basic theory is that the people are sovereign, we choose representatives and they decide the way we behave within this [sovereign] territory.”

So, for example, the Israeli Knesset does not have the authority to legislate traffic laws in Paris or zoning rules in London. Law follows sovereignty.

“So this law that claims to apply outside Israeli [sovereign] territory cannot be a constitutional law,” said Sasson, who now chairs the board of the left-wing New Israel Fund.

And it is why the law is sure to be struck down by the High Court of Justice, she predicted. “If I’m a High Court justice, my first question to the state’s attorney [defending the law] would be, ‘Explain to me not what claims we have to the territory – that’s not the question here – but by what authority'” Israel is legislating a civil law there without first defining the territory as subject to Israeli civil law, with all the ramifications such a designation would carry.

The Regulation Law is a potential watershed moment not because of the powers it confers or the requirements it demands of state bodies, but for the simple fact that it appears to penetrate this carefully constructed legal membrane between democratic, sovereign Israel on the one hand, and the occupied – or at least, under the Fourth Geneva Convention to which Israel is a signatory, specially protected as though occupied – Palestinian population on the other.

Tear down this barrier, this legal balancing act that has endured for five decades, and Israel faces a stark question: Why are some of the people living under the civil control of the Israeli state enfranchised as full citizens, but others are not?

Critics of Israel scoff at such legalisms. Fifty years after the Six Day War in 1967, they ask, isn’t that the de facto situation of the Palestinians in any case?

Yet within the Israeli discourse, in Israeli law and judicial precedent, the West Bank’s liminalism is seen as a fundamental protection for Israeli democracy. The Palestinians have not been naturalized, Israeli governments and courts have been insisting for decades, only because we are holding out for peace and separation. Their condition is provisional, temporary, even if its resolution has been long in coming.

If you rob me of that argument, if there is no longer a clear distinction between the legal status of sovereign Israeli territory and that of the West Bank, Mandelblit has told lawmakers in recent months during debates about the law, how will I continue to defend Israel’s current policy in the West Bank? If the Palestinians can now be subjected directly to Israeli civil law, how much longer will we be able to continue justifying the fact that they cannot vote for the body that creates that law?

‘Inhabitants’

None of this is lost on the bill’s supporters. Nor are they unaware that the law is all but certain to be struck down by the High Court of Justice.

Yet the campaign by the Jewish Home party and Likud’s rightist flank to advance the law, which was resisted even by Prime Minister Benjamin Netanyahu, was worth the trouble and potential fallout, they feel, because of the vital message it is meant to convey.

International law requires that an “occupying power” care for the needs of the inhabitants of a captured or occupied area. Over the past 20 years, Israeli governments have assiduously avoided carrying out significant seizures of privately owned Palestinian land solely for the benefit of Israeli settlements, such as the construction of access roads to such settlements.

A general view of the settlement Avnei Hefetz, east of Tulkarem, July 31, 2009 (Gili Yaari/Flash90)

As Mandelblit himself has argued to any lawmaker who would listen, Israeli authorities in the West Bank have clung to a consistent policy of only seizing privately owned Palestinian land in cases where the land’s public use will also, or even primarily, benefit the local Palestinian population.

One supporter of the Regulation Law familiar with its development told The Times of Israel this week that “the net result of this Israeli policy is that we accept a legal interpretation that sees the Israeli population [in the West Bank] as not part of its ‘inhabitants.’ That includes Israelis who have lived there for 40 years.”

Here lies the deeper message, the statement of principle that makes palatable the legal risks and diplomatic fallout, even if the law is ultimately overturned by the High Court: that the Israeli population in the West Bank belongs there, that its presence is legitimate and just, that they are as much the “inhabitants” of Judea and Samaria as the Palestinians.

This is not a message intended for foreign audiences, but for Israelis, and especially for government officials who, in practice, and despite often extravagant proclamations otherwise, seem to doubt the point.

This is the strange irony at the heart of the Regulation Law: that it is less a reliable signal of what the future holds for Israel’s policy in the West Bank – no one who voted for it expects it to survive the High Court challenge – and more a reflection of the deep sense of alienation and vulnerability that permeates the very settlements that, superficially at least, appear so empowered by its passage.