Is the Justice Minister promoting a legal revolution in the West Bank?

Ayelet Shaked speaks to the 'Post' about a law that could alter how Israel's legislation applies to Judea and Samaria, but its critics say it's unconstitutional and tantamount to annexation.

SEPTEMBER 10, 2017 06:47

Updated: SEPTEMBER 10, 2017 13:10

Ayelet Shaked (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST) — Ayelet Shaked

(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

The Settlements Regulations Law revolutionizes Israel’s perception of how the country’s laws relate to Judea and Samaria, Justice Minister Ayelet Shaked (Bayit Yehudi) told The Jerusalem Post in an interview late last week.

“We want to revolutionize our [legal] perception,” she said. “Foremost is that it is possible for [the Knesset] to legislate [for Judea and Samaria] and in addition that we don’t solve one injustice with another.”

Shaked spoke in advance of the expected submission to the High Court of Justice, possibly as early as Sunday, of a Knesset legal opinion with regard to the legality of the Settlements Regulation Law.

Shaked has been a vocal advocate for the law that retroactively legalizes close to 4,000 settler homes illegally built on private Palestinian property in exchange for monetary compensation.

Its opponents have argued that it undermines four decades of legal principles that have guided the High Court’s decisions regarding the West Bank.

A consortium of 13 left-wing NGOs that petitioned the court against the law has argued that it is unconstitutional, tantamount to annexation, runs contrary to international law and sanctions land theft of private Palestinian property.

The NGOs have further asserted that such a law would only encourage illegal building in the future.

The law’s supporters have said it was a necessary step to halt the High Court’s rulings that such illegal building must be demolished, even though the Palestinians were not given access to the property.

Ayelet Shaked speaks at the Cave of the Patriarchs‏

Shaked said the current situation in which the setters lose their homes, but due to the location of the plots the Palestinians cannot access their property, was “illogical.”

“If a mistake was made, an ancient one, and in any event neither the Palestinians nor the Israelis benefit from destruction, then the law provides a solution that both sides benefit from,” Shaked said.

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With this law they at least receive compensation, she added. “The [the Palestinian Authority] has this antisemitic law that those who sell land to Jews face the death penalty,” Shaked explained.

Private attorney Harel Arnon who wrote the 159-page legal brief the government submitted to the court in support of the law, downplayed the idea that his arguments represented any kind of legal shift.

Arnon authored the government’s argument after Attorney-General Avichai Mandelblit refused to support the legislation before the court. He is expected to issue his opinion on the matter in October.

Arnon said the only thing that is unusual in this situation, is that he wrote the government’s opinion and not Mandelblit. He added that the issue is not based on any new legal principle but rather common perception, both with respect to the Knesset’s purview and the rules of private property.

The Knesset can legislate for Area C; it has in fact done so in the past, he said.

“The prima facia assumption is that [Israeli] law doesn’t apply outside Israel unless the Knesset explicitly says so. If the Knesset decides on specific laws, to apply a specific law to Judea and Samaria, it can definitely do so,” Arnon said.

He took issue with the idea that such Knesset legislation for Area C of the West Bank was tantamount to annexation.

“There are plenty of Israeli legal cases that say that application of specific norms of the Knesset and maybe even a lot of norms, do not amount to annexation,” Arnon said.

But he noted that the Knesset did not necessarily need to legislate this issue, because Israeli law and international law allows for the concept of eminent domain to be applied to the issue of settler homes on private Palestinian property.

It has not been applied in the past but there is no legal barrier against its application, with or without the Knesset legislation, Arnon said.

In any modern legal system – including Israeli and Jordanian law – there is an option to address the issue of illegal building that does not involve demolition.

This occurs in instances when the real estate investment is worth more than the property and the actions on the property were done in “good faith.”

“The government faces a dilemma: Does it want to demolish the [settler] housing, in order to give absolute defense of the right to property of the [Palestinian land] owners? Or does it want to use a legal tool that is already in place under Israeli and Jordanian law – that applies to Judea and Samaria, which is called eminent domain?” Arnon asked.

“Whatever [the government] does, whether it chooses to legalize or to remove [the homes] it will inevitably infringe someone’s rights,” he said.

“The question is, which infringement is more severe and more justifiable” and “which harm is less than the other and what is reasonable?” “Private rights are not absolute, private rights are always relative,” Arnon said.

The government has decided that “it is more just and reasonable to offer generous compensation.”

In many ways the Settlement Regulations Law improves the law of eminent domain by offering the Palestinians over 125% of the value of the property or the option of alternate plots elsewhere, he said, adding that even Palestinians who lost access to their property 20 or 30 years ago can receive compensation.

Both Arnon and Shaked explained that they did not believe the law encouraged continued illegal building on private Palestinian property.

Nor does the law attempt to evaluate or judge the situation that allowed the illegal building to happen, Arnon explained. “There is no doubt that there has been an error here otherwise we would not be facing this issue.

The law focuses on what is the most appropriate path to move forward. It is an imperfect solution for an imperfect situation.

“The law draws the line and makes a clear distinction between past and future,” he said.

It will not authorize all illegal building where the building is worth more than the land, he explained. The construction must also have been done in good faith and with government support.

Right now, he said, “We have a situation where the [Palestinian] owners do not get compensation and the people live there and do not get permits.

“There is a gap between the reality and the legal situation and the law tries to bridge that gap.”