What’s in the Israeli legislation that aims to legalize West Bank outposts?

Does the Regulation Bill presage Israeli annexation of parts of the West Bank? Will the Supreme Court strike it down? How will the world react?

By Raphael Ahren, TOI

It is not yet law, it has gone through multiple changes, but the so-called Regulation Bill, which the Knesset approved in a preliminary reading late Monday, is understandably drawing immense attention both within and far beyond the borders of Israel.

On Monday evening, opposition leader Isaac Herzog warned it sets the stage for nothing less than “national suicide,” while Jewish Home head Naftali Bennett championed it as paving the path to expanding Israeli sovereignty into the West Bank.

“If ratified, it would constitute a breach of international law and, according to Israel’s Attorney General, it would also be unconstitutional,” Nickolay Mladenov, the United Nations’ special envoy to the peace process, told the Security Council last month.

The US State Department said its passing would represent an “unprecedented and troubling step that’s inconsistent with prior Israeli legal opinion and also break longstanding Israeli policy of not building on private Palestinian land.”

And EU foreign policy czar Federica Mogherini said the bill would be “crossing a new threshold, even under Israeli law, for the settlement enterprise in the West Bank.”

Amid the cacophony of claims and counterclaims, here’s an overview of what it will mean, who it will affect, and whether it will stand.

1. What does the new legislation bill say?

The bill — if it passes three more readings in the Knesset and is not subsequently struck down by the Supreme Court — would legalize housing units built by settlers on private Palestinian land, if the construction was carried out in good faith: If the settlers did not know that the land they were building on was privately owned by Palestinians, and received some kind of assistance from the state, they would be allowed to remain there.

The proposed legislation notes that government support may be explicit or implicit, from the start or post-facto, and that the backing of local municipalities is considered state support.

The bill, sponsored by Jewish Home MKs Betzalel Smotrich and Shuli Moalem-Refaeli and Likud MKs David Bitan and Yoav Kisch, allows the government to appropriate land for its own use if the owners are unknown. If the owners are known, they will be eligible for yearly damages amounting to 125 percent of the value of leasing the land or a larger financial package valued at 20 years’ worth of leasing the plots, or alternate plots.

MKs vote during a Knesset Constitution, Law, and Justice, Committee meeting regarding the so-called Regulation Bill, November 30, 2016. (Issac Harari/Flash90)

The legislation explicitly refers to structures in three settlements that have been subject to legal efforts to demolish buildings constructed on private land — Eli, Netiv HaAvot and Ofra. It says that all administrative proceedings in these three settlements will be frozen with the enactment of the law, and within the first 12 months, the government must determine whether these structures were built in good faith and with government assistance. If they were, the Regulation Law will apply to these areas as well.

“In many cases, settlements were built in agreed-upon areas, and were even encouraged or built in coordination with the state, or were built in good faith by the Israeli residents, who were unaware that this was privately-owned land,” the bill states. “Leaving the situation as is in these settlements or their destruction is liable to seriously, unjustifiably harm those who have lived there for many years. Therefore, the regulation of these settlements is necessary.”

2. The bill passed a preliminary reading on Monday. What are the chances that it will eventually make it into law?

Even if the bill makes it through the first, second and third readings, many analysts believe that the Supreme Court will eventually rule that the law is unconstitutional.

Israel’s attorney-general, Avichai Mandelblit, has warned that the bill breaches local and international law, and indicated that he would not be able to defend it before the Supreme Court.

3. If it clears all obstacles, including the Supreme Court, would it mean that the 40 families currently living in the Amona outpost will be allowed to stay put?

No, according to a Supreme Court ruling, the 20-year-old settlement must be evacuated by December 25, as it was established on privately owned Palestinian land. The Regulation Law would not retroactively apply to Amona.

Rather, a compromise reached Monday would have the residents relocated temporarily to three plots of absentee property on the same hill. These lands are currently administered by Israel’s Custodian for Absentees’ Property.

The settlers will be allowed to “remain a community,” Prime Minister Benjamin Netanyahu said Monday during the weekly faction meeting of his Likud party. “They will be required to move a few tens of meters, maybe 100 or 180 meters, but they will be able to stay in the same place.”

4. What about other “illegal outposts”? US Secretary of State John Kerry saidSunday that the Regulation Law would legalize more than 50 outposts, in addition to 31 that either have already been either legalized or are in the process of being legalized. How are they affected?

According to Peace Now, the Regulation Bill would not only retroactively legalize 55 illegal outposts by turning them into state-sanctioned settlements, but also open the door for the legalization of 3,125 housing units inside existing settlements by expropriating 5,014 dunams of private Palestinian land.

5. Why does Attorney General Mandelblit warn it breaches international law?

To answer this question it is instructive to recall how Likud MK Benny Begin — a strong supporter of the settlement enterprise — dubbed the bill, “the stealing law.” Expropriating private Palestinian land for the benefit of Jewish settlers can only be considered a “land-grab,” Begin said, vowing to vote against the bill.

The EU’s Mogherini phrased it more diplomatically: If passed, the law would “allow for the ex-post legalization of Israeli outposts in the occupied West Bank” and would enable the “confiscation of the private property rights of Palestinian land owners in the West Bank for the benefit of settlers.” Either way you put it, the opposition is to the idea of taking away a person’s land because someone else lives on it.

The bill’s current version no longer includes a controversial clause that would have allowed the overriding of a High Court ruling requiring Amona’s demolition. This makes the bill more palatable for the center-right Kulanu party, which had said it would not back a law that could be seen as undermining the High Court of Justice. But Mandelblit opposes the most recent version as well, which suggests that, if passed, it may not survive a challenge in the High Court.

From the point of view of international law, too, the current version of the Regulation Bill remains highly problematic. The specter of charges against Israeli leaders at the International Criminal Court, invoked recently by none other than Netanyahu himself, will continue to accompany the debate over the law.

Jerusalem argues that The Hague has no jurisdiction over the area, but the “State of Palestine” has been admitted as a full member of the court and asked the prosecutor to investigate Israel crimes committed on its territory, among them the “transfer” of settlers to the West Bank. A preliminary examination into the “situation in Palestine” is ongoing and the passing of a bill sanctioning the expropriation of privately owned Palestinian land in the West Bank will not play in Israel’s favor.

“Seizing private Palestinian land, which hasn’t been done before, certainly aggravates these claims,” said Robbie Sabel, a former legal adviser to Israel’s Foreign Ministry. On the other hand, if Jerusalem can prove that it was willing to compensate the Palestinian landowners rather than evict the Jewish settlers, this could ameliorate the decision, Sabel added. This is known as the Cyprus model.

Legal scholars argue over whether Israeli settlements in the West Bank fall under the category of war crimes as defined by the Geneva Convention, and can be considered a “mass atrocity” justifying the ICC’s involvement. But either way, the Regulation Law does not improve Israel’s case.

6. Education Minister Bennett, the head of the far-right Jewish Home party, is hailing the Regulation Bill as a revolution that paves the way for Israel’s annexation of the West Bank. Is this true?

Even some opponents of the legislation would agree with Bennett. The Knesset is not the sovereign legislature in the West Bank, which Israel has never formally annexed (except for the land captured in 1967 that falls within the municipal boundaries of Jerusalem). Therefore, they argue, passing laws regulating property issues in the territories is a step toward applying Israeli law there, in other words: a step toward annexation.

On the other hand, the current government remains committed to the two-state solution, at least on paper. Two weeks ago, the government issued a joint statement with visiting Polish ministers, in which it pledged allegiance to “the belief that a just and lasting solution to the Israeli–Palestinian conflict must and can be reached only based on the principle of two States for two peoples.”

Netanyahu has reiterated on several occasions that he opposes a one-state solution and remains committed to the creation of a demilitarized Palestinian state that recognizes the Jewish state. A peace agreement seems remote, but so, for now, does an Israeli annexation of the West Bank or parts of it.

7. But is this a victory for Bennett and the settlement movement over the more wary Netanyahu?

A law that could retroactively legalize dozens of illegal outposts across the West Bank and turn them into legitimate localities under Israeli law cannot be seen as anything but a major achievement for the settlement movement. The 40 families living in Amona object to the compromise that calls for them to be relocated, but given the kosher stamp the new law would give to so many other outposts, the vast majority of settlers are in favor of the law.

Netanyahu has to brace for international criticism, but he, too, has reason to consider himself a winner: He will finally have something to show his right-wing base, which often accuses him of not building enough in the territories. If the Regulation Bill passes, he could claim to have helped further entrench Jewish communities across the West Bank. Not incidentally, Netanyahu and Bennett also avoided a coalition crisis and can now continue to govern — at least until the next crisis, which may come sooner rather than later as the Knesset starts voting on the 2017-18 state budget later this month.

If the Supreme Court then strikes it down, as some suggest it is likely to do, the domestic critics will be relieved, the law’s supporters will fume, the coalition will have bought some time, and further confrontation over the vexed issue is likely to continue to dominate the agenda.

8. What happens on the ground now? Are there other efforts still in play to save Amona?

The residents of Amona reject the compromise solution the coalition has found, calling the temporary plots of absentee property designated for them a “ghetto” that does not fulfill their community’s needs. In a letter published Monday evening, representatives of the 40 families insist that they are not resigned to their fate and are calling on all supporters of the settlement enterprise to come to Amona and “stand by our site.”

“We are sure that as soon as [Israel’s political] leaders see the public’s mobilization they will come to their senses,” the letter states. “Amona won’t fall a second time,” the missive concludes, alluding to the 2006 demolition of nine houses built illegally on private Palestinian land, which turned violent. Settler leaders says they oppose violence, but encourage civil obedience; whether the looming evacuation of Amona will produce equally ugly scenes or go over relatively calmly is anyone’s guess at this point.

9. How is the international community going to react?

Even if the High Court ends up striking down the law, its mere passing in the Knesset will most likely trigger a hailstorm of condemnation. It is unclear, however, if Israel will have to fear tangible repercussions. The EU might consider limited sanctions — such as restricting trade with companies based in the settlements — but Europe currently has many other pressing issues and might decide that a sharply worded statement will suffice.

The US administration could use the passing of the Regulation Law as a pretext to back a Palestine-related move at the UN Security Council, though Secretary of State John Kerry said Sunday that Washington will continue to oppose “any resolution that is unfair and biased against Israel.” Outgoing President Barack Obama is said to have been mulling various steps to cement his legacy on the peace process, but “there’s been no decision made about any kind of step that may or may not be taken in that regard,” Kerry said.

Marissa Newman contributed to this report.