On 22 November 2017, the Israeli Attorney General, Avichai Mandelblit, submitted a written response to an Israeli Supreme Court petition against the Land Regularisation Law, in which he maintained his opposition to the law. This blog, which is published one year on from UN Security Council Resolution 2334 that reaffirmed the illegality of settlements, focuses attention on the significance and limitations of Mandelblit’s response.
The Land Regularisation Law
For a full discussion of the ‘Land Regularisation Law’ and its implications, see our blog from March 2017. In brief, the law was passed by the Israeli Knesset (parliament) on 6 February 2017, and very problematically provides retroactive legal approval to unauthorised housing built by Israeli settlers on expropriated private Palestinian land in occupied territory. The law subsequently provides that Palestinians from whom land is taken have no right to claim it back ‘until there is a diplomatic resolution of the status of the territories.’
The law is mainly applicable to ‘outposts’ which have been built on an ad hoc basis without official authorisation. Although outposts are separate from settlements they are often located close to them. Both settlements and outposts are illegal under international criminal, humanitarian and human rights law. UN Security Council Resolution 2334, passed on 23 December 2016, described their status as a ‘flagrant violation under international law’. By entrenching its settlements policy through passing the ‘Land Regularisation Law’, the Israel Knesset demonstrated an immediate and open disregard for Security Council Resolution 2334 and for international law.
Mandelblit’s opposition to the Land Regularisation Law– significance and limitations
Refusing to defend the legislation in his response to the Israeli Supreme Court petition, Mandelblit – in his capacity as the senior legal officer for the Israeli Government – calls it “unconstitutional” and that it should be repealed. He describes the legislation as “sweeping and harmful” since it prioritises settlers’ needs over “the property rights of the owners of the land in the area.” He further notes its lack of proportionality in his response, and argues that it was not applied in “good faith”, instead creating a land expropriation process “that is inherently flawed.”
Mandelblit had also raised the unconstitutionality of the law during the legislative process. His ongoing refusal to defend the legislation has meant that a separate lawyer, Harel Arnon – who is himself accused of illegally building a settlement home, has been instructed to represent the Israeli state in petitions filed against it.
However, based on analysis from Israeli and Palestinian human rights organisations, Mandelblit’s opposition is fundamentally flawed from an international law perspective. As reported in a joint statement by Adalah – The Legal Center for Arab Minority Rights in Israel, the Jerusalem Legal Aid and Human Rights Centre, and the Al Mezan Centre for Human Rights, despite maintaining his position that the Land Regularisation Law should be repealed, his 22 November response asserts that it is worthy to “validate” constructions by Israel on private Palestinian land where it can be transferred to a settlement “in good faith.” His response further asserts that Israel now has a number of other tools at its disposal to legally achieve this aim, and gives his approval to use of these means, including through expropriating Palestinian land for “public needs,” for example relating to “regulating” the construction of roads used to access an illegal settlement outpost.
In this context, it is important to note that eight days earlier, Mandelblit made an unprecedented ruling about the expropriation of privately owned Palestinian land for a road accessing an outpost in the West Bank, which depicted settlers as local residents with the right to have their needs taken into account. This reversed a previous position that private Palestinian property could not be expropriated in the interests of settlers’ needs.
Based on the above, it is very troubling that Israel’s most senior legal officer does not accept that all settlements are illegal under international law, which would entail a wholesale rejection of any attempts to regularise outposts and / or expropriate land on occupied territory, and moreover is authorising alternative means to implement these actions.
Breaches of international human rights, humanitarian and criminal law
Finally, it is reported that Mandelblit states in his response that it was unusual and inappropriate for such a law made by Israel’s parliament to apply directly to the West Bank. The fact that the Land Regularisation Law entails a direct application of Israeli law to the West Bank – whose residents, living under occupation, are not entitled to vote for representatives in the Israeli parliament – is indeed an unprecedented breach of the right to self-determination. The extremity of the position was underscored by the fact that Dan Meridor, a former Israel justice minister who supports settlements, called it a breach of fundamental democratic principles. Yet it is not only the mechanism of the Land Regularisation Law that give rise to human rights breaches. Rather, violations also stem from the existence and expansion of the settlements themselves.
The existence of the settlements violates civil and political rights such as rights to equality and non-discrimination, due process and freedom from arbitrary detention, liberty and security of person, freedom of expression, as well as social and economic rights including access to natural resources and rights to education, water, housing and property. Settlements depend on an infrastructure constructed on land which is only open to settlers, military checkpoints which severely restrict the movement of Palestinians, and a ‘separation wall’ located mainly on occupied Palestinian territory and found to be unlawful by the International Court of Justice. Palestinians are also subject to high levels of violence from settlers, which Israel has been criticised by the UN Secretary General for failing to properly investigate or punish.
In addition, the settlement expansion process gives rise to breaches of international humanitarian and criminal law, since Israel citizens are transferred to occupied Palestinian territory. Under Article 8(2)(b)(vii) of the Rome Statute of the International Criminal Court, it is a war crime for an occupying power to directly or indirectly transfer parts of its own civilian population into the territory it occupies. Article 49 of the Fourth Geneva Convention also prohibits an Occupying Power from deporting or transferring parts of its own civilian population into the territory it occupies. These breaches occur whatever the process by which settlement expansion takes place.
Therefore, while the Israeli Attorney General’s continued stand against the Land Regularisation Law is helpful in relation to the particularly serious breaches of democratic and self-determination rights implied by the legislation, it falls fundamentally short of the much more comprehensive opposition to settlements and their expansion that is needed in order for Israel to comply with clear obligations of international humanitarian, criminal and human rights law.