The Settlement Law — a Defense

Why is the Settlement Law necessary? Is it legal to expropriate private property? What will The Hague say? The answers to these questions and more are presented below

It can be solved. The settelment Aish Kodesh, Photo: Gert Mills, Flash90

The proposal known as the Settlement Law — or according its official title “The Law Proposal to Arrange Settlement in Judea and Samaria” — is back on the Knesset agenda. This article reviews the factual and legal basis, as well as many of the basic arguments for and against the proposed law, in question and answer form.

Why do we need an Arrangements Law?

Dozens of settlements in Judea in Samaria were established openly, officially, and in the name of the State. But over the years, primarily due to political considerations, the situation evolved. Eventually, it reached the point where the State established settlements using one hand to build them and the other to slap a demolition order. One eye winks and the other eye is bloodshot with rage. While the reasons for this situation are varied, no-one disputes it. It is sufficient to quote the report submitted by Adv. Talia Sasson to then-Prime Minister Ariel Sharon:

In fact, the phenomenon of the unauthorized outposts is the continuation of the settlement project in the territories. But while the more distant past saw the settlement project receiving recognition and encouragement from the Israeli government, in the middle of the nineties, the situation changed. Israeli governments were no longer formally involved in establishing outposts, apparently due to Israel’s international situation and the negative position of most of the world’s countries against the settlement project. This is not the case regarding public authorities and bodies representing the State, which played a major part in founding them…some by closing their eyes, and some with encouragement and support but without a decision by the duly State-authorized political leadership.

Regarding this situation, there is no difference between the Sasson Report and the report of the committee headed by late Supreme Court Justice Edmund Levi, which stated that citizens who built their homes in settlements founded under a dualistic State policy, effectively became “unwilling criminals,” “on land the rights to which they funded from their pocket, and via loans they took from banks after the State gave its approval.”

How did it happen that so many settlements and homes got built on “private property,” and why didn’t the founders follow the law?

The phenomenon of settlements and houses built on private land, or whose planning legal arrangement is problematic, encompasses some 4,000 structures and derives from the complex situation in Judea and Samaria.

Every founding of a settlement, whether in little Israel or in Judea and Samaria, requires addressing land ownership, as well as meeting construction and planning laws. Within the Green Line, these issues are fairly simple. Most of the lands are registered in the name of the State, and in case they are not, they can be expropriated or fairly easily bought. The registry that contains ownership details is maintained and can be freely examined. The planning processes are controlled by the Planning and Construction Law, and are fairly straight-forward.

In Judea and Samaria, the regulations that apply to the purchase of land rights are a mixture of Ottoman, British, Jordanian, and Israeli military law. Many areas are not arranged at all — that is, lots and blocs are not marked like in Israel. Even places where land underwent arrangement, very often the registry is only partially complete or deficient; and the rightful owners are not clearly identified.

To add to the confusion, the registry in Judea and Samaria is confidential and cannot be perused. Even in cases where there is clear ownership, any Arab who sells land to a Jew risks the death penalty according to Palestinian Authority law.

If matters weren’t complicated enough, a series of government decisions beginning in the nineties effectively paralyzed all the planning stages, making each and every stage contingent on political approval. This has reached the point that the Defense Minister’s agreement is required to close every porch or add a safe room.

Furthermore, the Civil Administration [of Judea and Samaria] decided about ten years ago to redraw the “blue line” that determined the border of State-owned lands in which Israeli settlements can be built. The redrawing effort has led to the exclusion of hundreds, and perhaps thousands, of homes and neighborhoods that have already been built, outside of State lands.

The Arrangements Law is meant to address this situation using mechanisms accepted both in Israel and the world, such as posting demolition notices, establishing clear processes for the expropriation of land (or really the use thereof), providing owners proper compensation in land or money, and allocating land to Israeli settlements with the needed planning and construction approvals.

The proposed law has been attacked on many fronts, but there’s nothing in it that doesn’t already exist in other laws or in other places around the world.

When and why can land be expropriated in such cases? What about property rights?

Land expropriation for the sake of establishing settlements and neighborhoods is a normative, common procedure. Between 1968 and 1991, some 23.3 thousand dunams were expropriated in the eastern part of Jerusalem — some of which were owned by Jews and some by Arabs — to establish the neighborhoods of French Hill, Ramat Eshkol, Neve Yaakov, Armon Hanatziv, Gilo, and others. These expropriations passed the Supreme Court test time and again, with the court stating that the establishment of settlements and neighborhoods is a public necessity justifying any harm to individual property rights.

The same rule was supposed to apply to Judea and Samaria as well, since legally, the Jordanian expropriation law in force allows the expropriation of land for any public purpose defined by the government. The Israeli Expropriation Order, which is similar to it (both are products of the British Mandatory Expropriation Order), explicitly states that a public need is the “establishment, expansion, or development of a settlement.”

PM Netanyahu recives the Levi report from Justice Edmond Levi. Photo: Flas90

Is the land expropriation proposed in the law constitutional and proportional?

Opponents of the law argue that it harms the individual rights of the owners, and that this harm contradicts Israel’s basic laws, especially Basic Law: Human Dignity and Freedom and the right to property listed therein.

Such statements ignore many laws and arrangements which exist in Israeli law as well as past expropriations that have occurred both within little Israel and in Judea and Samaria.

The opponents of the law deal with past expropriations by claiming:

  1. Expropriation for public purposes is not the same as expropriation for another individual.
  2. Expropriation in advance is not the same as expropriation post facto, after the settlement has been built contrary to the law.

These counterarguments ignore Article 23 of the Israeli Land Law. It states that even in a case in which a private individual built in good faith on land which belongs to another individual, if his investment is greater than the value of the land, he can force the land owner to sell it to him, and thus effectively expropriate land from one individual to another.[1]

In the case of the Arrangements Law, matters of settlement can easily be considered a public need which can justify expropriation, especially when:

  • The settlements and neighborhoods were established in partnership and with the encouragement of the State.
  • The partnership and encouragement of the State created the settlements’ dependence on them.
  • These are financial investments — private and public — whose costs are enormous.
  • Even if Arab owners want to sell, they can’t do so, since the laws of the Palestinian Authority would sentence them to death (market failure).
  • If the land is not arranged and Israeli construction is demolished, the owner will derive no benefit.
  • There is a public and political interest in preventing the destruction of settlements and neighborhoods.

Most importantly: When we speak of harm to the property rights of the land owners, we need to examine the status of their rights before and after the law.

If the Arrangement Law does not pass, the owners of private land on which a settlement was built:

  • Are left with desolate land which they usually cannot use because of security reasons.
  • Cannot sell it to Jews or allow Jews to use it, since they would face death by the Palestinian Authority
  • Will not receive alternative land or payment for use of the land they own.

By contrast, if the Arrangement Law does pass:

  • Land owners will receive enlarged compensation or alternative land.

Additionally, when people claim harm to property rights, we need to balance between the property right of the land owner and the property right of those who invested in construction in good faith or based on the conduct of the government. A solution which provides maximal protection for the property rights of one side and entirely ignores the property rights of others is not a proportional solution which aligns with the Basic Laws.

Does the law discriminate between Jews and Arabs, when it only allows expropriation in favor of Jewish settlement?

Over four decades ago, the State established Jewish settlement in Judea and Samaria, and the proposed law continues that policy. (It should be noted that the State of Israel has allowed the Palestinian Authority to establish Arab settlements, such as the city of Rawabi. Today, such State-approved expropriations are carried out in favor of Arab settlement, and it is a purely routine affair.)

In any event, the principle appearing in the law—construction in good faith and based on the needs of the State— applies and will apply also to Arab construction.

Doesn’t international law prohibit an occupier from expropriating the property of the occupied population?

First, the State of Israel never defined Judea and Samaria as “occupied” territory, but as “disputed” territory.

Israel’s government did tell the Supreme Court after the Six Day War that it was operating within the territory as though the Hague Conventions applied to it, and that it was willing to voluntarily apply the humanitarian orders of the Fourth Geneva Convention regarding the residents of the territory. But even according to these rules, international law allows the expropriation of land for the local population.[2]

After fifty years of Jewish settlement in Judea, the argument that the Israelis living there are not a “local population” is simply inconceivable. It is clear, therefore, that one can, in principle, expropriate lands for public purposes for the local Israeli settlement, the same as one can do so for Palestinian residents.

The Hague. Photo: Hypergio CC BY-SA 4.0, via Wikimedia Commons

Where does the Knesset derive its authority to legislate in Judea and Samaria, instead of the military commander?

The question assumes that the commander of IDF forces in Judea and Samaria is not subject to the laws of the democratic State of Israel which is governed by the Knesset. In truth, the IDF commander in Judea and Samaria is subordinate to the Defense Minister, who acts in accordance with government decisions.

As an aside, if Knesset laws do not obligate the military authorities in Judea and Samaria, why should a Basic Law: The Judiciary which grants power to the Supreme Court, obligate them? Furthermore, if we assume that the Knesset cannot legislate for an occupied territory because of international law, then the laws that apply to Jerusalem or in the Golan, which are occupied by the same definition, lack any validity.

In short, the military commander is subject to the laws of the Knesset just as Israeli authorities on the Golan Heights or in East Jerusalem.

How can the Knesset legislate in Judea and Samaria without annexing the territory?

This can serve as a public or political argument, but it is not a legal one. There is no obligation to annex a territory for law to apply to it, not even when the law applies to land. Absurdly, the Disengagement law is the example for this, as article 28 establishes that all land rights in the Gaza Strip and north Samaria are expropriated. The law was passed by the Knesset and directly applied. Of course, the land in question was not annexed to Israel.

There are many precedents in the world for legislation by an occupying power regarding the territory it occupies. This would also not be the first time in which the Knesset passed laws which apply in Judea and Samaria. Even according to the Supreme Court (Criminal Appeal 83/123), the Knesset has the authority to pass laws which apply outside the borders of the State of Israel, so long as they do not harm any other sovereignty, and that the law is effective. These two rules apply in our case. Of course, if we take the position of all Israeli governments since 1967 — that Israel is not an occupier and that the territories are disputed — this problem becomes far more marginal.

From where does Israel, the occupier, derive the authority to change the legal status in the occupied territory?

The proposed Arrangements Law will not change the legal situation, nor, will it determine how settlements will be established in the future. The law merely addresses problems which exist today on the ground. It relies on the expropriation powers which the State of Israel already possesses by force of local Jordanian law. In essence, the law effectively (and accurately) reflects the approach that Israeli settlers also count as the “local population,” and that the need to arrange it is a public need.

Doesn’t the law violate the prohibition against transferring the population of the occupier to the territory of the occupied?

This question can be made against the entire settlement project in Judea and Samaria and in Jerusalem. Israel’s position is that that the area is not occupied territory and the Fourth Geneva Convention does not apply, and most certainly not article (49(6)). This article was meant to prevent mass population transfers such as the world witnessed during WWII for the purpose of forced labor, concentration, and extermination, or “getting rid of” undesired populations. There is no justification for using this argument against a population which returned to territory that it had settled previously.

Will the Arrangements Law lead to The Hague?

Consequences in the international arena are a matter of politics and diplomacy, and very little is really dependent on the strictly legal aspect. To that end, Israel’s ability to defend itself in the international arena in the legal sense is on solid ground.

Furthermore, the international community tends to treat every declaration of approval of settlement plans — even in Jerusalem — as “annexation” in the best scenario, and as “theft of private Palestinian land” in the worst case.

Other points when it comes to the International Criminal Court in The Hague are:

  • Israel is not a member of the International Criminal Court.
  • Like Israel, many other countries are also not members, especially the United States.
  • Quite a number of states have left the ICC recently on the grounds of bias and unequal treatment.
  • The ICC is authorized to deal with serious violations of the laws of war. The claim that expropriation for compensation is a serious violation is quite weak.
  • Prosecutions for war crimes require the existence of an armed international conflict, which does not exist in this case.
  • The United States passed a law in 2002 popularly titled the “Hague Invasion Act,” which forbad cooperation with the ICC. The law stated that the President may use all means necessary to free citizens of the United States or its allies extradited to the ICC, as well as end any aid to a state which cooperates or hands in citizens of the United States or its allies to the ICC.

While the ICC is expected to open an investigation into the settlements, it is to be regarded as a political move which in no way addresses the legal questions involved with arrangement.

Bottom line:

The fact that the status of Judea and Samaria are currently undecided should not influence questions regarding property or constitutional law. Questions of international law are important, but they are primarily political, not legal. We are supposed to require political decisions from our representatives, with legal and technical questions being handled by jurists, people in the Attorney General’s office, and ministry legal advisers. An unhealthy mixture of law, politics, personal opinion, or prejudice, harms the ability to have a calm, fundamental discussion of the law.

Adv. Simcha Rothman is the legal advisor for the Israeli Movement for Governability and Democracy (Meshilut).

[1] This principle exists in parallel laws that permit the expropriation of land for public purposes and the transfer of land from one individual to another, in cases of good faith and/or the improvement of the land by the “invader.”

[2] It’s important to distinguish between the terms “local population” and “protected population.” The phrase “Protected population” is found in the Fourth Geneva Convention; however, it does not deal with the protection of property.

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2 comments on the article

  1. does this: Article 23 of the Israeli Land Law. It states that even in a case in which a private individual built in good faith on land which belongs to another individual, if his investment is greater than the value of the land, he can force the land owner to sell it to him, and thus effectively expropriate land from one individual to another.[1]
    apply to non-Israeli citizens? does it apply in Area C (yes for sure Judea/Samaria- but it is also land designated and determinate to the future (some day/some how) negotiations between Israel and the PA, no? What right do we have to make law about property there-in- especially if it’s outside the settlement blocks expected as part of land swaps? Sure- those days of peace negotiations seem far away- but to pass law like this against arbiters who are non-citizens (it sure sounds beneficient of great friend Israel to help those poor disregarded arab land owners the way you present it) seems a bit paternal/ pretentious/ not exactly yashar?
    drawing examples from Jerusalem- which Israel officially annexed seems rather irrelevant.

    Also- you mention the great “Today, such State-approved expropriations are carried out in favor of Arab settlement, and it is a purely routine affair.)” This is total bs-unless by routine you mean the .7% of arab requests to build in area C that are granted? come-on… Rawabi is the HUGE exception to the sop.
    In general- i think Israelis- since we’ve been disconnected from land for so long- don’t really understand what connection to land on a family level means. We understand it on a national level– but the Arabs around us- who’s families work the land, and have been holding it in their families for multi-generations- think about it differently. It’s not just “we’ll give you land somewhere else.” For them- that land is part of their family, not a real-estate deal. I think without understanding this- laws like these and much of our thinking is detached from what could actually make a difference here- and smacks of galusdik’e legal procedurism instead of… ???

  2. The article is well explained, but it seems to me that a lot of the justifications are like “we found a loophole here and there, which we can use”. And that doesn’t sound much to me as fair ethical Law, but just witty greedy lawyer talk.