(First appeared on Just Security on the 20.12.2016 as a response to a post by Eugene Kontorovich)
The proposed (and euphemistically titled) “Regulation Bill” is a bill pending
before the Israeli Knesset which seeks to authorize the expropriation of private Palestinian property in order to render legal hundreds, if not thousands, of houses constructed unlawfully by Israeli West Bank settlers. It raises significant legal problems under Israeli law and under international law, as the latter is interpreted and applied by Israeli courts. Among many other problems, the Bill interferes with private property rights of Palestinian land owners in order to benefit Israeli settlers, and runs contrary to long-standing jurisprudence of the Israeli Supreme Court, according to which the construction of settlements in the West Bank can be permitted only on non-private land. It also raises serious issues concerning the power of the Israeli Knesset to regulate land rights in an area not subject to Israeli law (unlike East Jerusalem and the Golan Heights, Israel has never extended its domestic law to the West Bank). It is for these reasons that the Attorney-General of the State of Israel has objected to the Bill and has taken the extraordinary step of declaring that he would not defend the State in litigation concerning the constitutionality of the Bill. Yet a group of lawyers, most of whom belong to a right-wing think tank, the Kohelet Policy Forum (where Eugene Kontorovich heads the international law department) have testified before a Knesset Committee and have published several op-eds maintaining that the Bill is valid under Israeli law, arguing inter alia that the Knesset may pass legislation which violates international law. They have also alleged as an alternative claim that the Bill does not violate international law, for reasons which are cited by Kontorovich in his Just Security post. In the following lines we address only this alternative claim, namely, that the draft Bill does not violate international law. We also disagree with the main claim made by the Kohelet lawyers, and believe that if the Bill is passed, it should be struck down by Israeli courts as unconstitutional.
Kontorovich’s claim is built on a number of legal and rhetorical moves: he begins by “[a]ssuming, for the sake of argument, that the law of belligerent occupation applies…”, implying that the applicability of the law of occupation is at least doubtful if not to be altogether rejected. In doing so he tries to cast doubt not only on the position of the International Court of Justice and on the legal effect of countless UN resolutions, including several Security Council resolutions, but also on the consistent jurisprudence of the Israeli Supreme Court, which has held that the West Bank is subject to belligerent occupation (including in cases dealing with the impermissibility of taking private land for settlements), and on the legal basis invoked by Israeli military authorities in the West Bank themselves for countless security measures they have taken (including seizure of property for military needs and administrative detention).
Second, Kontorovich’s “concession” toward the applicability of the law of occupation suggests that the dispute “has focused on Art. 46 of the Hague Convention.” Actually, the argument against the Bill extends not only to the 1907 Hague Regulations, but also to the Fourth Geneva Convention (Geneva IV). Kontorovich’s failure to even mention this key legal instrument is particularly objectionable given that even the Israeli government itself, which claims that Geneva IV does not apply de jure to the West Bank, has undertaken to comply with the Convention’s humanitarian provisions, and has thereby rendered itself bound by them. It is also noteworthy that since 2002 the Israeli Supreme Court has routinely applied Geneva IV to cases relating to the West Bank.
By disregarding Geneva IV. Kontorovich conveniently evades contending with the special legal protections to which Palestinians are entitled as “protected persons,” and implies that Israelis and Palestinians alike are the population of the occupied territory, subject to the same international legal standards with respect to property rights. He also evades addressing the effect of article 49(6) of Geneva IV on the legality under international law of the Regulation Bill, despite that provision prohibiting the transfer of the occupant’s civilian population into occupied territory. (Another body of law ignored by Kontorovich is international human rights law, both treaty-based and customary, which applies to all individuals in Israeli territory and subject to its jurisdiction, and which contains highly relevant provisions on non-discrimination, access to justice, right to property and self-determination).
Even were we to restrict the discussion to the Hague Regulations, the absence of an explicit prohibition on expropriation of private property in Article 46 does not exhaust the protection of private land rights. Kontorovich argues that expropriation is lawful if carried out in accordance with the local law of the occupied territory (i.e., Jordanian Law). However, use of local law remains subject to the letter and the spirit of the law of occupation, and the Regulation Bill runs contrary to both.
First, Article 46 of the Hague Regulations not only expressly prohibits confiscation, but also obligates the occupant to respect private property. While this does not preclude the imposition of limitations on the right, such limitations must meet, according to the jurisprudence of the Israeli Supreme Court, tests of necessity and proportionality. Discriminatory legislation which, in effect, authorizes the taking of land only from residents of the occupied territory for the benefit of nationals of the occupant (Article 1 of the Regulation Bill states that its purpose is “to regulate settlement in Judea and Samaria and enable the continuation of its establishment and development”) does not plausibly meet such requirements. In fact, it is precisely on that basis, of the strength of the legal right to property of Palestinian landowners and the impermissibility of infringing upon it by way of unlawful trespass, that the Supreme Court has ordered the dismantling of Amona, the settlement whose pending eviction has triggered the drafting of the Regulation Bill. Furthermore, the Bill, and the significant land reform it envisions, run contrary to the requirement of maintaining the status quo in occupied territories, which is reflected in the prohibition found in Article 43 of the Hague Regulation on changing local law, except when absolutely necessary. It is difficult to see how legalizing trespass by nationals of the occupant can be regarded as “absolutely necessary” under the laws of occupation. In the same vein, it is difficult to accept that the underlying goal of the Regulation Bill – the promotion of Israeli West Bank settlements – is consistent with the pro-status quo letter and spirit of the laws of belligerent occupation (not to mention the letter and spirit of article 49(6) Geneva IV).
This is not the place to repeat the full debate over the legality of settlements under international law, but it is important to note that the Regulation Bill undermines two of Israel’s main contentions in this regard. Israel has traditionally maintained that its settlement campaign does not violate the prohibition on the transfer of civilian population of the occupant into the occupied territory, inter alia because the settlers are not “transferred,” but move into the West Bank voluntarily. By openly declaring Israel’s national policy of “enabl[ing] the continuation of [the] establishment and development” of settlement in the West Bank, and engaging Israeli officials and state authority in land expropriations for that very purpose, the Regulation Bill puts the lid on explanations regarding the private nature of the settlements. The Bill also runs counter to Israel’s claim that the settlement campaign is compatible with the State’s undertaking to comply with Geneva IV’s humanitarian provisions because constructing settlements does not infringe on the rights of individual Palestinians. Space constraints do not allow us to also discuss the international criminal law implications of this development. Suffice it to say that Kontorovich’s claim that the situation in the West Bank is not related to an international armed conflict is totally groundless. The application of the laws of belligerent occupation to the West Bank necessarily implies the categorization of the situation as an international armed conflict (note however that specific hostilities in occupied territory may be categorized differently, according to their distinct features)..
Kontorovich concludes his post by noting that legislation for expropriation for the benefit of settlers has been adopted in other instances in the world. He argues that such legislation in Northern Cyprus has been “approved” by the ECtHR, while “[t]he fact that many aspects of Russia’s Crimean occupation have been explicitly criticized on international law grounds, but this one [expropriation of land] ignored, suggests that it is not seen as illegal.” However, neither of these instances has been explicitly addressed by the occupants themselves or by the international community in terms of the law of occupation, rendering them irrelevant as “precedents” under this body of law. In any event, the absence of comparable state practice does not vitiate the applicability of the law of occupation to the West Bank, and the paucity of international condemnations of violations by other occupants, cannot lead us to treat basic norms of the law of occupation, such as respect of property rights, maintenance of the status quo, and prohibition on transfer of population as having fallen into desuetude.
Finally, the framing of the debate by Kontorovich merits attention. Lawyers supporting the Regulation Bill present it as a bureaucratic mechanism to resolve civil law disputes between land owners and possessors, to be regulated under local land law. They play down – to oblivion – the ethnic/national bias underlying the law, which is directly related to the political context of its adoption. Neither of these elements can be dismissed; in fact, it is precisely this bias which the political proponents of the law openly pursue. The bill is explicitly aimed at enabling the continuation of the establishment and development of Israeli settlements in the West Bank in ways designed to undermine the exercise of Palestinian self-determination in the context of a two-state solution. Effectively it entrenches Israeli presence in the territory, and it gives legal preference to the interests of nationals of the occupant over the rights of disenfranchised Palestinian residents of occupied territory. Both are violations of international law.