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Irreversible implications of Israel’s Regularization Law
On February 6th of this year, the Israeli parliament, the Knesset, passed the Regularization law. Known by opponents as the ‘land-grab’ law, it was passed with 60 in favour and 52 against it.
But what is it exactly?
According to Elena Chachko - a doctorate candidate at Harvard law school, who clerked for Chief Justice Asher D. Grunis on the Supreme Court of Israel, and worked on national security issues at the Israeli Ministry of Foreign Affairs- “this law essentially aims to ‘legalize’ illegal settlements in the West Bank.”
Noura Erakat, a human rights attorney and assistant professor at George Mason University further explains: “The land grab law is appropriately named because it describes the sanction of the Israeli judicial system and the government has given to Israeli civilians to squat and take private Palestinian land and then to retroactively legalise those takings by providing some sort of compensation even if the Palestinian landowners are refusing to sell. So it’s forcible taking with some sort of compensation which most Palestinians will refuse to take because they don’t want to sell at all.”
Since the 1967 Arab-Israeli war, the Israelis have made it apparent that they too want the Gaza strip and the West Bank.
In 2005, Israel withdrew from Gaza strip; but the West Bank remains occupied territory. The right-wing groups in Israel will often refer to this territory as Judea and Samaria.
Erakat explains that while Israel may have coveted those areas, it cannot simply annex them because under international law, territorial conquest is illegal.
So in 1977, Israel had already indicated a willingness to give up the Gaza strip, to be able to continue to settle the West Bank, and that was “the specific arrangement articulated at the start of the peace process in 1993. Palestinians have never accepted this, and yet what we are seeing by a fait accompli this is actually what Israel has achieved,” adds Erakat.
Legal words aside, what does all of this mean?
It means Israeli citizens who are in the occupied territories, can go to land privately owned by a Palestinian and offer to buy it. But even if the Palestinian refuses, the police and military can force that person off the land, and financially compensate the person for it anyway.
In the lead up to the law being passed, there was the forced evacuation of the Jewish settlements Amona and Ofra in the West Bank. Chachko writes that this new law is “widely viewed as compensation offered by the Israeli government to the settlers to offset the politically damaging evacuations.”
But not everyone agrees with this policy.
In fact, “Israel's Supreme Court has a long precedent since 1979 that said you cannot take private Palestinian land” underlines Erakat.
She adds that even Prime Minister Netanyahu finds himself to the left of Israel's liberal establishment movement on this issue, and “disapproved of this [law]” along with Israel’s former Foreign Minister Tzipi Livni.
She adds “there isn't a consensus; this is a right-wing settler initiative that the Knesset has passed but that Israel's own judicial branch will likely overcome.”
Ministers from the right-wing Jewish Home party, including members from the Yesha Council - an umbrella organization of municipal councils of Jewish settlements in the West Bank - were asked to comment on this law, but they all declined to speak.
As Erakat mentioned, the Supreme Court does have a history of upholding precedents, which is why the law is being appealed before the Supreme Court.
Suhad Bishara is a senior lawyer specializing in land and planning rights at Adala: an independent human rights organization and legal centre that promotes and defends the rights of Palestinian Arabs in Israel, as well as those in the territories. She has been working to appeal this case to the Supreme Court.
The petition to appeal is based on two main arguments: firstly, that the law cannot “be valid in the occupied territories, in the West Bank because it clearly violates international humanitarian law, which should be their legal framework by the occupying power Israel” explains Bishara.
Secondly, this law “violates the basic rights of the Palestinians in the West Bank” she adds, therefore it violates Israel’s Basic law that aims to protect human dignity and liberty. Bishara goes on to explain if a law violates the rights listed under the Basic law in more than one way, then it can be declared by the Supreme Court as “ unconstitutional and cancelled”.
When the Regularization law was passed in February, the attorney general, Avichai Mandelblit, refused to defend it and said he would not represent the government in relation to this law.
At present, no court date has yet been set for the appeal, but both Erakat and Bishara expect it to be some time soon.
But when that time comes, Bishara remains hopeful that that law itself will be appealed given the attorney general has already decided not to defend it.
That means the government will not be represented by Mandeblit, but rather by a private law firm.
In addition to that, Bishara says other groups have been petitioning against the law, along with regular Israeli citizens.
In fact one criticism went viral at the start of March.
In the final moments of the popular Israeli comedy show ‘Good night with Asaf Harel’, Harel himself used the air-time to criticize the state of affairs in the country (https://www.youtube.com/watch?v=HPsLQI3hWvU) saying: …Ever since the right wing took power, more and more voices are warning of apartheid. Are you kidding?
Apartheid has been here for ages. Ages! It’s just that we’re on its good side, so it doesn’t really bother us. We’ve been abusing the Palestinians on a daily basis for years, denying them their basic rights. In Judea and Samaria——we’re taking their lands from them. Once, we used the Jewish National Fund to raise money to buy the lands. Today? We just passed a law saying we can just take their lands and that’s it…
But how has the Israeli government been able to push for this law?
Erakat explains this comes from the territory Israel has occupied since the 1967 war that is considered stateless.
The Israeli government “has insisted that Jordan and Egypt were just trustees and had no legal title, that Palestinians have no sovereignty”, so one cannot occupy a non-sovereign”.
But, as Erakat highlights, this assumption goes against the response given by the “International Court of Justice, Red Cross, the ICC [International Criminal Court], the United States, the General Assembly, the Security Council.”
Regardless of the international standard, following the passing of this law, one of the initiators of it, Yoav Kish, from the ruling Likud party, was quoted by Israeli media (http://www.israelnationalnews.com/News/News.aspx/221406 ) as saying:
“The change of political strategy in Judea and Samaria has started with the [Regularization] Law. We were chosen to lead a nationalist government and strengthening the Judean and Samarian communities is an essential aspect of that.”
Kisch did not respond to repeated requests to be interviewed for this report.
Naftali Bennet, the education minister and head of the Jewish Home party, was also quoted as saying after the passing of the law: "This is a day of great pride. It is the day when half a million residents of Judea and Samaria and all the citizens of Israel can pick up their heads and know that not only are we the residents of this country but we are even in the law books of the State of Israel.
The next step is to implement sovereignty of Israel in Maale Adumim, and then to implement the law in all of Judea and Samaria. I will do that when we have 30 seats. People said it wouldn't happen and here, it has happened.”
Naftali Bennet was unavailable for comment for this report.
Until the appeal date before the Supreme Court, Bishara says a motion has been requested to “freeze the implementation of the law until a final decision is given”. In doing so, it will avoid any possible complications if the law is immediately implemented; complications she stresses that “might be irreversible steps”.
Despite the fact that this law is a major shift in Israel policy towards the West Bank, it has attracted little international attention.
Erakat says much of this stems from the fact that there is simply extensive “fatigue around this issue, especially in the current context of on-going war in the middle east in Syria”, in Yemen and the instability across the region following the Arab spring uprisings.
Added to that is the fact that after 50 years of occupation by Israel, the international community remains unable to resolve this issue, making it the “last thing that most leaders want to deal with” asserts Erakat.
In addition to this law, Israel’s security cabinet approved on March 30 the building of the first new settlements in the West Bank…the first time in two decades.
It remains to be seen what the future holds for the West Bank.