Israel’s move to retroactively legalise settler homes in the occupied West Bank has triggered a storm of criticism
Al-Jazeera – 10 February 2017
Some 17 Palestinian municipalities in the occupied West Bank have petitioned the Israeli Supreme Court to strike down a new law that retroactively sanctions the theft of their lands by settlers.
Lawyers representing the villages, who filed their petition on Wednesday, have in the meantime asked the court to impose an immediate freeze on the so-called Regulation Law, passed by the Israeli parliament on Monday night.
It is the first time that an Israeli law, rather than temporary military orders, has been directly applied to Palestinians in the West Bank.
Supporters of the settlements have hailed the law as a turning point that paves the way to Israel annexing significant parts of the occupied territory.
But the measure has already provoked a major diplomatic backlash. Leaders from Germany, Britain, France, the European Union, the United Nations and the Arab League have condemned the law, warning that it severely undermines prospects for a two-state solution.
Suhad Bishara, one of the lawyers who drafted the petition, told Al Jazeera that the law would “legalise” thousands of settler homes built on lands privately owned by Palestinians, denying them the right to claim back their property.
The petition – submitted jointly by Adalah in Israel, the al-Mezan Centre for Human Rights and the Jerusalem Legal Aid Centre – notes that the Hague Convention states “private property cannot be confiscated” by an occupying power.
In a sign of the diplomatic damage the law has already caused Israel, Haaretz reported that the Israeli foreign ministry told staff at its embassies overseas to avoid discussing the law wherever possible.
The EU responded by postponing a summit with Israel, due later this month, which had been intended to mark a thaw in relations between the two.
On Wednesday, during a visit to Paris, Palestinian President Mahmoud Abbas threatened to end security cooperation with Israel if the settlement drive continued. “I would have no other choice,” he said.
The US has kept silent so far, saying it will wait to see what the Israeli Supreme Court decides. The issue is expected to be raised when Israeli Prime Minister Benjamin Netanyahu meets US President Donald Trump in Washington next week, the Times of Israel website reported.
The petition warns that “legalising” the settlements risks dragging Israel deeper into conflict with the International Criminal Court at The Hague. Under international law, an occupying power can take occupied land only out of military necessity.
ICC prosecutors are already investigating Israel over possible war crimes for transferring more than 600,000 Jewish civilians into the West Bank and East Jerusalem.
If the Supreme Court rejects the petition, it would raise pressure on the ICC to act, said Issam Aruri, head of the Jerusalem Legal Aid Centre, which represents many of the villages petitioning the court.
“This looks like a massive own goal by the right wing in Israel,” he told Al Jazeera. “It should open the world’s eyes to the fact that what has been created here is a copy of apartheid.”
Spread of ‘outposts’
All of Israel’s settlements are built in violation of international law. But Aruri said the Regulation Law, also known as the Legalisation or Validation Law, reversed a significant limitation on settlement construction.
In the late 1970s, in accordance with the Hague Convention, the Israeli courts prohibited the government from locating settlements on land for which Palestinians had ownership papers.
Israel declared much of the rest of the West Bank, including public and refugee lands, as “state land”. Officials treated such territory as effectively part of Israel and reserved for Jewish settlements.
However, in many cases Israeli officials either ignored the court restrictions or allowed settlements established on confiscated public lands to expand on to privately owned Palestinian land, said Aruri.
“The settler population has grown five or sixfold since the early 1990s,” he said. “That was done by allowing the settlers to carry out a massive land grab, even while the Oslo accords were supposed be creating the framework for a peace deal.”
Aruri added that Israel had also reneged on a promise, made as part of the Oslo arrangement, not to establish any new settlements. Instead, he said, officials had secretly supported the settlers in setting up some 100 “outposts”, many of them on private Palestinian land.
“Although Israel says it didn’t authorise the outposts, they were immediately provided with public services, including roads, water and electricity,” he said. “Now with this new law, the collusion has come out of the shadows.”
Village lands seized
Naqura, close to the Palestinian city of Nablus in the northern West Bank, is one of the villages petitioning the Israeli Supreme Court.
The head of the local council, Ahmed Abu Hashish, said Israeli officials had seized more than two square kilometres of his community’s lands to build the settlement of Shavei Shomron in 1978. Neighbouring Palestinian villages lost additional land.
“Six families, including my father’s, have the papers to show we own these lands,” he told Al Jazeera. “We grew olives, apricots and plums there before the settlers stole it.”
A concrete wall surrounding the settlement means the villagers can no longer see their lands.
Abu Hashish said that no one had listened when the villagers originally protested against the confiscations.
“We are a small village and could not take on the might of the Israeli government by ourselves,” he said. “Now we hope that together with the other villages, we can persuade the Israeli court to reverse this law and win back our lands.”
More court petitions
Bishara, who works with the Adalah legal centre, said she was “hopeful” the court would intervene, as the new law flagrantly violated both international law and Israeli law.
“It suspends international humanitarian law in the West Bank and replaces it with Israeli law,” she said. “That will be a hard pill for the Supreme Court to swallow.”
Dan Meridor, a former government minister from Netanyahu’s Likud party, has observed that West Bank Palestinians “did not vote for the Knesset [Israeli parliament], and it has no authority to legislate for them. These are basic principles of democracy and Israeli law”.
Unusually, Israel’s chief law officer, attorney-general Avichai Mendelblit, has said he will refuse to defend the new law before the court. On Tuesday, The Times of Israel reported that he might make the unprecedented move of testifying against the law.
There are expected to be other petitions against the new law. Three Israeli human rights organisations – Peace Now, Yesh Din and the Association for Civil Rights in Israel – said they would petition the court later this month.
Anat Ben Nun, of Peace Now, said the law would initially legalise 3,900 settler homes. But a provision allows the justice minister to add more settlement homes to the list in the future.
“It is important to stop this law before it inflicts devastating damage on the two-state solution,” she told Al Jazeera.
Worse law in wings?
It is unclear how the Israeli parliament will respond if the court overturns the law. Zvi Barel, a columnist for the Haaretz newspaper, warned that right-wing legislators may try to pass “an even worse law”.
Bishara agreed that this was a danger. “The parliament could enact another law that simply bypasses the Supreme Court decision,” she said. “We have seen this happen before with court rulings the parliament did not like.”
She noted that the judges would also be under strong political pressure not to intervene. “This is considered a highly sensitive issue in Israel and it will be difficult for the court to be seen reversing the will of parliament,” she said.
Yariv Levin, the tourism minister, told the Army Radio on Tuesday that it would be undemocratic for “a handful of judges who are self-selected behind closed doors [to] decide whether they like the law or not”.
Pressure to pass the Regulation Law mounted after the court-ordered eviction last week of settlers from an outpost called Amona.
Abdel Rahman Saleh, mayor of the Palestinian village of Silwad in the central West Bank, told Al Jazeera that more than 100 families had lost their lands to Amona, as well as to the neighbouring settlement of Ofra. Additional lands were seized by the two settlements from the villages of Dayr Jarir and Taybeh.
The outpost has been at the centre of a legal battle with the villages ever since its establishment in 1995.
Thousands of police were sent to dismantle the outpost in 2006, shortly after the withdrawal of settlers from Gaza, provoking major clashes with the settler movement. A short time later, the settlers returned and re-established their homes.
The Supreme Court insisted again on evicting Amona’s 40 families in 2014, after an investigation by police confirmed that papers purporting to show the settlers had bought the land were forged.
The Israeli authorities then dragged their feet for three years before finally implementing the eviction order last week.
“We didn’t just lose the lands the settlers stole from us,” Saleh said. “The Israeli army created a ‘security area’ all around the settlement, a kilometre wide and monitored with cameras, that takes even more land from us.”
The law passed this week allows for the return of Palestinian property to its owners, but only at the completion of a peace agreement with the Palestinians.
Bishara said: “Given the apparent lack of interest among the Israeli leadership in resolving the conflict, that means in practice these lands will be kept indefinitely.”