NGOs petition High Court to strike settlement law as unconstitutional

Groups claim law tries to legalize ‘after-the-fact illegal Israeli buildings on private Palestinian land’

Seventeen Palestinian municipalities petitioned the High Court of Justice on Wednesday to strike the settlement regulation law as unconstitutional and to immediately freeze its implementation pending a final ruling on its constitutionality.

“The law eliminates the basic rights of the Palestinian residents of the West Bank and leaves them with no legal protections by permitting the pilfering of their private property for the benefit of Israeli settlers in the West Bank on the basis of an ethnically inspired ideological worldview,” reads the petition filed by Adalah – The Legal Center for Arab Minority Rights in Israel, the Al-Mezan Center for Human Rights and the Jerusalem Center for Human Rights.

The NGOs turned to the court on behalf of the municipalities, all of whom were affected by the legislation the Knesset approved on Sunday that retroactively legalizes close to 4,000 setter homes built on what was subsequently ruled to be private Palestinian property, offering to compensate the landowners.

The NGOs wrote that the law violates both the international law of belligerent occupation, including the obligations that Israel has to protect Palestinian rights as long as it manages the West Bank, and Israel’s foundational constitutional Basic Law: Human Dignity and Liberty.

They argued that the new law not only violates the Palestinians’ constitutional rights to property, but also their basic right to dignity by actualizing the principle that their rights are secondary to the rights of Jewish settlers.

In that spirit, the petition claims that the law violates the international convention on apartheid, which is considered a crime against humanity for dominating another population.

It also says that the law violates Israeli court decisions obligating Israel to abide by The Hague regulations, the humanitarian provisions of the Fourth Geneva Conventions and the 2004 International Court of Justice opinion about international law in the West Bank.

Possibly the most problematic allegation for Israel globally, is that the petition says that implementing the law falls under the International Criminal Court war crime of Article 8(2)(b)VIII of the Rome Statute of population transfer.

This argument is a serious warning bell since the ICC prosecutor is already examining the possibility of criminally investigating the settlement enterprise as war crimes.

It also specifically quotes Article 46 of The Hague regulations which states that “private property cannot be

confiscated” from an area being managed by the rules of belligerent occupation.

The petition even quotes a case from the Nuremberg trials against confiscating land being able to be legal by paying compensation – which the law’s defenders have cited as a basis for its legality.

Adalah and the other NGOs said the law’s purpose was so clearly unconstitutional under domestic Israeli law that it did not need to address whether its means of implementation were proportional – another aspect of the test for a law’s constitutionality.

The petition quoted several statements by the Attorney-General’s Office stating that the only legal basis for Israel to appropriate private Palestinian land was for military necessity and that the law goes directly against this principle, making it an illegal law.

Quoting the Attorney-General’s Office further, the petition says the law is trying to legalize “after-the-fact illegal Israeli buildings on private Palestinian land. According to international law, a state is prohibited from imposing its laws on land which is beyond its territory... the law contradicts the obligation of the IDF commander to protect the property rights” of Palestinians in the West Bank.

More specifically, the Attorney-General’s Office had objected to having the Civil Administration of Judea and Samaria “seize Palestinian property without proper seizure proceedings which are consistent with law... The seizure is for the purpose of legalizing actions which themselves were illegal from the start.”

Also, the petition presents the attorney-general’s argument that the IDF commander, not the Knesset, decides land issues in the West Bank, adding that he is bound by international law.

Taking aim at land-law issues, the petition argues that the new law pays lip service to standard land law, but does so by creating a fictional legal framework of changing certain lands’ legal status over a six- to 12-month period – which in practice can only lead to illegal seizure of Palestinian land.

It says that while the law claims it is only giving possession and use of the private Palestinian land in question to Jewish settlers pending a final resolution of the status of the West Bank, that since there is no deadline or horizon for such a resolution, it is essentially permanent seizure of the land.

The law allows Jewish settlers to take official possession of privately owned Palestinian land if the settlers in good faith built on the land, not knowing it was private, or if the state indirectly agreed to them building on the land. The NGOs say that the petition fails to define “good faith” and they highlight that this lack of definition betrays the back story to the new law in which they say most settlers were intentionally illegally building on Palestinian lands in order to expand the Jewish footprint in the West Bank.

Further, the petition says that the law gives an overly broad definition of what qualifies as “agreement of the state” – as in that the state indirectly consented to certain Jewish settlements, even if it did not formally endorse them.

According to the law, any signs of agreement from the state can function as an endorsement leading to Jewish settlements being legalized – a formulation opposed by the attorney-general.

A range of international condemnations of the law by UN Secretary-General Antonio Guterres, the EU and the US are also included in the petition in support of the argument that it is against international law.

The petition includes a list of 16 settlements and the corresponding Palestinian villages that it said are being harmed by those settlements buildings’, as well as aerial photographs of some of the areas in dispute.

Similar petitions are expected to be filed next week or in the near future by a range of NGOs. •