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Monday, 13 February 2017

Intersting new slant on Israel's Settlement Legislation



An international furor arose following the Knesset adoption of the "Regulations Bill," which grants property rights to Jewish homeowners in West Bank settlements built on "Palestinian land." Media headlines emphasized this point and world leaders subsequently assailed Israel for a "land grab" that threatens a two-state solution.


The wisdom of adopting such a law is a matter of controversy separate from the question of its legality. Most commentary about the legislation failed to explain that the law applies to a small number of homes - approximately 4,000. Moreover, Palestinians did not claim title to these lands until years after the homes were built. As international law expert Professor Eugene Kontorovich noted, these lands were typically state land given to Palestinians by King Hussein during the Jordanian occupation of the West Bank (Eugene Kontorovich, "Israel's Settlement Regulations Bill and International Law," Just Security, December 20, 2016). As the occupier, Hussein had no right to give away the land.


Israelis who built houses in the West Bank several decades ago were unaware that the land did not belong to the state; they did not intentionally purchase plots belonging to Palestinians. The law offers Palestinians who can prove ownership 125% of the value of the land as compensation, or alternative nearby plots, in exchange for allowing the homeowners to remain.


Kontorovich added that it is misleading to refer to the areas in question as "private Palestinian lands" because no individual Palestinians have come forward to claim much of the land. Thus, he says, "common law would certainly warrant the application of adverse possession doctrines, under which long-term possession of property unprotested by owners can change legal title."


A solution might be possible to avoid controversy and litigation if the Jewish homeowners could negotiate deals with the Palestinians claiming property rights. Unfortunately, the Palestinian Authority has mandated the death penalty for any Palestinian selling land to Jews (the penalty supposedly has been reduced to life at hard labor).


Kontorovich explained that critics of the law have incorrectly interpreted Article 46 of the Hague Convention as an absolute prohibition against the confiscation of private property absent military necessity. He notes that the article's meaning is subject to debate and not established law. Moreover, an important distinction exists between confiscation and expropriation. The latter provides for just compensation while the former does not. Thus, the Hague Convention would not apply to the expropriation called for in the Regulations Bill.


Finally, Kontorovich explains that property owners need to prove they have suffered some injury to seek legal recourse. "This may be the first case where it is the payment of above-market compensation [that] is claimed as an international law violation."


The law is being challenged and Israel's High Court will make a final determination as to whether it is consistent with Israeli law.  Meanwhile, the political argument that the law will prevent a two-state solution relies on the specious argument that any settlement construction is an impediment to peace. The Palestinians' unwillingness to recognize a Jewish state alongside a Palestinian state, however, is the true obstacle to peace.




    Click Here to Read More Myths & Facts from the 2017 Edition 


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