A look at the government’s push to change 50 years of its judicial treatment of Area C of the West Bank
The government submitted one of its more forceful documents to date to the High Court of Justice this week, pushing to change the legal interpretation underpinning 50 years of its judicial treatment of Area C of the West Bank.
After the Six Day War in 1967, the government voluntarily applied to the West Bank the humanitarian provisions of the laws for belligerent occupation as promulgated by the 1907 Hague Convention and the 1949 Geneva Convention.
The High Court of Justice has adjudicated based on those international norms. At the state’s request, it has persistently ruled that settler homes illegally built on private Palestinian property must be evacuated.
Harel Arnon’s 159-page legal brief on behalf of the government changed the state’s position and argued that the principle of eminent domain could be applied to these cases and that the court should do so.
The court now has to decide if that argument meets the dictates of Israeli and international law.
If the court accepts his argument, it will have taken a significant step in the normalization of Israeli life for the 400,000 citizens who live in Area C, which is outside the country’s sovereign borders, instead of viewing it as belligerent occupation.
The brief comes in the midst of a seemingly unbridgeable schism between a legal system operating according to the laws of belligerent occupation and the territorial ambitions of a right-wing government whose members want sovereignty over the region.
Under Prime Minister Benjamin Netanyahu’s government, this legal tension has become particularly acute with regard to property rights and the application of Israeli law in Area C, which is believed to be outside the Knesset’s purview.
In February, the Knesset challenged the state and the court’s legal presumptions on this issue by approving the Settlements Regulation Law, which retroactively legalizes 4,000 settler homes on private Palestinian property in exchange for monetary compensation for the landowners.
A consortium of 13 leftwing, nongovernmental groups petitioned the High Court against the law, which it argued is unconstitutional and goes against the IDF’s obligation under international law to prioritize the rights of the Palestinian civilian population under its protection – with the exception of cases involving security issues.
The law runs so counter to five decades of normative Israeli and international legal interpretation that Attorney-General Avichai Mandelblit refused to argue the state’s position to the court.
The government therefore hired private attorney Arnon, a graduate of Harvard University, as an outside legal consultant to represent it in court. He argued for the law on two central points. First, that the Knesset could legislate for Area C as an extraterritorial region, without formally annexing it.
“The Knesset can legislate whatever it wants,” Arnon told The Jerusalem Post, explaining that it did so when it annexed east Jerusalem in 1980 and applied Israeli law to the Golan Heights in 1981.
If the Settlements Regulation Law is illegal, then those actions are illegal as well, he said.
The Knesset has already passed legislation following common law principles for Judea and Samaria and for that matter for places around the world, and “no one said it was illegal,” Arnon said. “The Knesset can legislate on the moon,” he said.
He disputed one of the main contentions of the plaintiffs – namely, that the courts are required to abide by international law over Israeli law.
The IDF can’t be an independent body from the state, he said, adding that this is what happens when there is a coup.
“The idea that the military commander’s source of authority is international law – not Israeli law,” he wrote, “is no less than the dissolution of the state from its sovereignty.”
But one doesn’t need to go that far, because even under the laws of belligerent occupation, he argued, there is a strong argument in support of the Settlements Law.
Respect for the property of the local population – in this case, the Palestinians – does not exclude expropriation. This law ensures that Israel meets that component of the international code by offering to compensate the Palestinians, he said.
Second, the interpretation of “local population” can also include Israelis living in the area. This law addresses the rights of both groups. The settlers’ right to not be uprooted from their homes is as significant as that of the Palestinians on whose property those homes were built.
In other instances of occupation, such as Cyprus, international law has recognized the concept of compensation, Arnon wrote.
Arnon’s arguments mark a dramatic turn for Israel, whose government until recently supported a sacrosanct principle that private Palestinian property cannot be used for settlement. In 2005 it published a report, authored by private attorney Talia Sasson, on West Bank outposts, and it appears on the Foreign Ministry’s website to this day.
Sasson addressed the issue of settler construction on private Palestinian property, which she said is criminal and could even be viewed as a felony.
She even suggested changing Israeli law to allow for the prosecution of such offenses. The IDF has a constitutional obligation to protect the Palestinians’ right to their properties, Sasson wrote.
Her report, she said, was an extension of the 1979 Elon Moreh High Court of Justice ruling, which also forbade settler use of private Palestinian property and insisted that settlements could be built only on state land.
When Netanyahu came into office, he initially also held that position. But his government has changed its stance, partially in response to the scores of NGO petitions to the High Court of Justice to force the state to protect private Palestinian property against settlement building.
Netanyahu has stated publicly that he would never uproot settlers, only to watch his security forces carry out court rulings to evacuate settlers.
The long list of settler court losses underscored for rightwing politicians the idea that they would never win in court, under what they termed as a “left-wing” legal paradigm.
They pushed to change not only the understanding of how such illegal construction had occurred but, even more significantly, the legislative and legal fabric of decision-making from one that opposed their actions to one that supports it.
The settlement building that occurred without permits, they argued, was not illegal but unauthorized. Government officials were not breaking the law, but offering nods of approvals which were never actualized. Building on private Palestinian property was accidental, not theft, and compensation was the best form of restitution.
Right-wing politicians attempted to pass the outpost bill to legalize construction in those unauthorized communities.
When that failed, they supported the publication of a government-commissioned legal report by former Supreme Court justice Edmond Levy, which provided a legal defense for the settlement enterprise and provided an option to legalize the outposts.
The right wing finally had success with the Settlements Law. This subsequent court case has now become a testing ground for what right-wing politicians hope will be a 180-degree shift in the country’s legal paradigm with respect to Area C.
Attorney Michael Sfard, who is among the attorneys representing the NGO consortium before the High Court, dismissed Arnon’s arguments as a form of legal fantasy.
The Knesset, he said, cannot legislate for Area C.
“Situations of extraterritorial legislation are narrowly tailored to exclusively apply in certain conditions to citizens abroad, including when they commit, or are victims of, criminal activity,” Sfard said.
Theoretically, he said, the Knesset could pass a law nationalizing Oxford Street in London, but that would not make it legal or enforceable.
“The only difference is that because Israel controls the West Bank, it can implement [the Settlements Law],” he said.
“It now appears that the government has retained a private lawyer to reinvent international law for it,” Sfard said.
“The state’s reply is a 100page legal fantasy in which confiscation of land from Palestinians to benefit Israeli settlements and settlers is legal, and in which the setters are considered protected persons of the territory,” he said.
“International law provides a limited power of legislation to the occupying army and only for two objectives. It can legislate either to enhance security or benefit the occupied people and help them restore their civil life,” he said.
This law would strip Palestinians of what they do have – title to their property. In the future, should justice be established in the area, they could get back possession over their property, Sfard said.
Imposing legislation on people who are ineligible to vote or run for office signals autocracy, he said.
This law would help cement a two-tiered system of people in Area C: one group, the settlers, who have rights; and the other group, the Palestinians, who do not, he argued.
“If they do not have rights, we are officially declaring that we are an apartheid state; and if we give them rights, then it is annexation,” Sfard said.