What is the difference between a “legal” and “illegal” settlement?
Under Israeli law, a West Bank settlement is considered legal if it has been built with official government approval. Existing Israeli law only provides for building on so-called “state lands”, which have been determined by the Defence Ministry to not be privately owned. An “illegal settlement” or “outpost” has been constructed without government approval, although they normally quickly receive state infrastructure like electricity, water, roads and security protection. Palestinian landowners can petition Israel’s Supreme Court for the removal of settlers and illegal buildings on their property, although the process is long and often expensive.
According to the vast majority of international legal opinion, all Israeli settlements over the Green Line break international law. The Fourth Geneva Convention explicitly forbids an occupying power from moving its own civilians into occupied territory. Israel disputes this interpretation in relation to the West Bank, but it does – as a matter of policy – adhere to the Geneva Conventions in the West Bank with regard to, for instance, the application of military law to the civilian population.
What is the “legalisation” law?
The “legalisation” or “regulation” law is a piece of Knesset legislation designed to approve construction by Israelis on private Palestinian land in the West Bank. According to the bill, which passed its first reading in the Knesset on 7 December 2016, this would only apply to housing units and structures which have received some form of state assistance. In practice, as all outposts have received national or local government assistance, this distinction exists only on paper. “Assistance”, given a broad definition by the crafters of the bill, can mean everything from tacit approval by the Defence Ministry to local services provided by a regional council. Proven owners of retroactively appropriated land would be eligible for yearly payments worth 125% of the rental value of the land.
The law passed its final vote in the Knesset on Monday, 6 February 2017, 60 votes to 52. Back to top
What kind of impact will the law have?
There are currently around 100 settlement outposts, although – according to some reports – up to 31 of them have either recently been or in the process of being formally legalised. This new law would retroactively legalise 55 outposts, according to a report by Peace Now. These account for 797 housing units built on 3,067 dunams of private Palestinian-owned land. In addition, the bill would retroactively approve 3,125 housing units in existing settlements. These are buildings built on private Palestinian-owned land inside settlements which have received government approval. This would entail the expropriation of over 5000 dunams of private land. Although the law is explicitly retroactive – in other words, it applies only to construction from before it became law – it does also give the Justice Minister the power, with approval from the relevant Knesset committee, to add additional settlements to the list of areas where land can be appropriated. According to some analysts, this could potentially provide the basis for future settlement on private Palestinian-owned land.
According to Naftali Bennett, the Education Minister and leader of the national-religious Bayit Yehudi party, this represents a shift “from a path to establish a Palestinian state, to a path of extending sovereignty to Judea and Samaria”. For Bennett, and his allies, the outpost bill is the first step on the way to abandoning the two-state solution and promoting Israeli annexation of the West Bank.
It seems likely that Israel’s Supreme Court will rule the bill unconstitutional. There have also been suggestions that the bill could lead to charges against Israeli leaders at the International Criminal Court in The Hague. Prime Minister Binyamin Netanyahu and Defence Minister Avigdor Lieberman even raised this spectre themselves at a Security Cabinet meeting. Back to top
Who pushed the bill?
The bill was introduced to the Knesset by Bayit Yehudi MKs Shuli Moalem-Refaeli and Betzalel Smotrich, and Likud MKs David Bitan and Yoav Kisch. It was then adopted by the governing coalition, and promoted vociferously by Naftali Bennett. Prime Minister Netanyahu backed the bill, after initially opposing it, as did Defence Minister Lieberman. Finance Minister Moshe Kahlon, whose centre-right Kulanu party has 10 seats and could have swung the vote for or against, had opposed the bill and considered abstaining until a clause nullifying past Supreme Court rulings was removed, but he ended up supporting the bill. Back to top
Why is this happening now?
The legalisation bill is not new. Variations of the law have been proposed at the Knesset for years, particularly by Bayit Yehudi and Likud MKs. The new drive to pass the legislation was precipitated by the impending evacuation of Amona, a relatively large outpost in the central West Bank and home to 40 families. Amona became a symbol of the settlement movement in 2006, when the scheduled demolition of a handful of buildings in the outpost became the setting for a violent struggle between Israeli security forces and settlers. In 2014, the Supreme Court ruled that the entire outpost is built on land owned by local Palestinians, and a deadline for its evacuation and demolition was set for December 25, 2016. Amona was eventually evacuated over 2 days on February 1st-2nd.
With the evacuation date looming in late 2015, the legalisation bill had been latched upon by politicians associated with the settler movement as a way to prevent the demolition of the outpost. Similarly, the government had been keen to find a “solution” for the Amona settlers, and to avoid images of police clashing with Israeli civilians in the West Bank. However, the section of the legislation that would have applied to Amona was removed from the current version to gain Moshe Kahlon’s support in November 2016. Kahlon had seen it as “an attack on the Supreme Court” and refused to back the bill.
Even though the legalisation bill could not “save” Amona, it became a key legislative priority of Israel’s right-wing governing coalition. Settlers and their supporters represent a key constituency in the internal elections of Benjamin Netanyahu’s Likud and Naftali Bennett’s Bayit Yehudi, meaning delivering the legalisation bill is in the interests of politicians in both parties. Back to top
What has Israel’s attorney general said?
Avichai Mandelblit, Israel’s Attorney General and previously Cabinet Secretary, opposed the bill, arguing that it contravenes both Israeli and international law. He has said he will not defend it in front of the Supreme Court. Back to top
What have Israeli politicians who oppose the law said?
Benny Begin MK, the only member of the governing coalition to vote against the bill, said:
“This bill is so bad, this law is so wrong, it’s so extreme in its deviation from social values. It’s a moral question – a group of people decides to build huts or even houses on land that isn’t theirs, knowing it isn’t theirs.”
Opposition leader & Zionist Union head Yitzhak Herzog said:
“It is a very serious stain in the book of Israeli law because it is a law that approves theft and robbery. There is no precedent, nothing like it, in which the Israeli government authorised a law that allows taking land from private people.” Back to top
How has the international community responded?
UN Special Coordinator for the Middle East Peace Process Nickolay Mladenov said:
“This is the first time the Israeli Knesset legislates in the occupied Palestinian lands and particularly on property issues, that crosses a very thick red line. [The law] opens the potential for the full annexation of the West Bank and therefore undermines substantially the two-state solution.”
Minister for the Middle East Tobias Ellwood MP said:
“It is of great concern that the bill paves the way for significant growth in settlements deep in the West Bank, threatening the viability of the two-state solution. As a longstanding friend of Israel, I condemn the passing of the Land Regularisation Bill by the Knesset, which damages Israel’s standing with its international partners. We reiterate our support for a two-state solution, leading to a secure Israel that is safe from terrorism, and a contiguous, viable and sovereign Palestinian state.”
Federica Mogherini, the European Union High Representative, said:
“The European Union condemns the recent adoption of the “Regularisation Law” by the Israeli Knesset on 6 February. This law crosses a new and dangerous threshold by legalising under Israeli law the seizure of Palestinian property rights and effectively authorising the confiscation of privately owned Palestinian land in occupied territory. The law may provide for “legalising” numerous settlements and outposts previously considered as illegal even under Israeli law, which would be contrary to previous commitments by Israeli governments and illegal under international law.
In passing this new law, the Israeli parliament has legislated on the legal status of land within occupied territory, which is an issue that remains beyond its jurisdiction.
Should it be implemented, the law would further entrench a one-state reality of unequal rights, perpetual occupation and conflict.
The EU, also in line with recently adopted UN Security Council resolution 2334, considers Israeli settlements in the occupied Palestinian territory to be illegal under international law and condemns the recent settlement announcements. As identified in the recommendations of the report by the Middle East Quartet, such settlements constitute an obstacle to peace and threaten the viability of a two-state solution.
The EU urges the Israeli leadership to refrain from implementing the law and to avoid measures that further raise tensions and endanger the prospects for a peaceful solution to the conflict, so as to reaffirm unequivocally through actions and policy its continued commitment to a two-state solution in order to rebuild mutual trust and create conditions for direct and meaningful negotiations.”
Mark Toner, US State Department Spokesperson in the Barack Obama administration, said (when the bill passed its first reading):
“We’re very concerned … about the advancement of this legislation that would allow for the legalization of Israeli outposts located in private Palestinian land. Enacting this law would be profoundly damaging to the prospects for a two-state solution. And we’ve also been troubled by comments that we’ve heard by some political figures in Israel that this would be the first step in annexing parts of the West Bank.”
The current US administration has so far refused to comment on the law.
How has Yachad responded?
Yachad has launched an open statement, which you can add your name to by clicking here:
“The passing of the so-called ‘legalisation’ bill is a dark moment in the Knesset’s history. The law retroactively legalises at least 55 settlement outposts and nearly 4000 housing units that were built without permission on land owned by private Palestinian landowners in the West Bank. These outposts have always been considered illegal under Israeli law.
The governing coalition has acted with disregard towards the rule of law, the rights of private Palestinian landowners and the basic security of ordinary Israelis. As supporters of Israel in the UK, we cannot sit by while its government legitimises common theft. We share the feelings of opposition leader Isaac Herzog that this law represents “a very serious danger” to Israel.
For years, the Israeli government has argued that Palestinian intransigence is the main stumbling block to a two-state solution. This law renders that position untenable. According to a 2015 City University study, 75% of British Jews view settlement building as a “major” obstacle to peace and 61% think “pursuing peace negotiations with the Palestinians” should be the number 1 priority of Israel’s government. We, like the majority of British Jews and the leaders of Israel’s opposition, want an Israeli government that supports peacebuilding, not settlement building.
We call on the Israeli government and Knesset to reverse this disastrous legislation.”
You can see the list of signatories to the statement here.
Yachad director Hannah Weisfeld made the following comment on the passing of the bill:
“This is a disastrous step, taken in blatant disregard for both Israeli and international law. It will do significant damage, both to the possibility of a political resolution to the Israeli-Palestinian conflict and to the rule of law in Israel. The Knesset has now legalised the theft of land owned by non-citizens in territory outside its legal jurisdiction. This demonstrates that the commitment to peace Benjamin Netanyahu made in his meeting this morning with Theresa May was nothing more than lip service.
We have heard from successive Israeli governments and their representatives that the main stumbling block to a two-state solution is the Palestinian leadership’s failure to compromise. This law makes a mockery of that argument, demonstrating that both sides share the blame for the continued failure to resolve the conflict. Israel’s supporters around the world should push this government to change its policy to support peacebuilding, not settlement building.”