Following are two updates:
1. The New AG Legal Opinion
On 13 December 2018, on the day two IDF soldiers were killed in an attack near Ramallah, and following a series of terrorist attacks on the same day and a few days earlier, the Attorney General held a discussion on the question of the implementation of the “market regulation” doctrine on private land stolen from Palestinians under various circumstances by the settlements.
The doctrine of “market regulation” is in fact the logic behind the Regulation Law, according to which it is permissible to expropriate land from its owners in those cases where the land was taken from them in good faith (the law is pending supreme court approval following petitions filed by several organizations). At the summary of the discussion, the Attorney General begins to outline the mechanism that will allow the government to initiate the process of legalizing construction on private Palestinian land (and not only in cases where a petition is submitted to the High Court of Justice) in a way that allows it to begin immediately.
Peace Now: The attorney general is crossing yet another red line by laying the foundations for an institutionalized theft mechanism that will expropriate land from Palestinians and allocate it to settlers who stole it.This is part of a larger move led by AG Mandelblit to reduce the rights of Palestinians in the occupied territories and to expand the privileges of the settlers, thereby bringing us closer to an apartheid reality.
The doctrine of “market regulation” is a legal arrangement which in certain cases allows a purchaser who acquired property without the consent of the owner by mistake to retain that property (e.g. property sold by a thief and there was no reason for the buyer to suspect that the seller does not own it). The idea is to prevent a situation in which every chain of transfers of an asset can collapse at any moment if it turns out that someone along the way did not agree to the transfer, which would greatly harm the market activity and trade in property.
In mid-November 2017, the state notified the High Court of Justice of its intention to expropriate 45 dunams of Palestinian land in the Ofra area in order to approve a building plan that would regulate parts of the settlement. The legal justification given in the State’s response to the High Court of Justice was the use of the “market regulation” doctrine set out in Section 5 of the Order Concerning Government Property. In other words, there is no obligation to evacuate those who invaded the private land and return the land to its owners.
The State’s response is based on a discussion summary held by the Attorney General in December 2016, in which the Attorney General approved the application of Section 5 on certain cases in which the Civil Administration had, in good faith, allocated land that it did not own and transferred it to settlers. In fact, the legal advisor’s order allows for the expropriation of Palestinian land for the benefit of settlements, which is forbidden by the international law and is considered by the Israeli legal system to be a red line that cannot be crossed.
It should be noted that the Regulation Law legislated by the Knesset does in effect determine that private land that settlers invaded will not be returned, but will be expropriated from the owners in return for compensation. In the response of the Attorney General to the High Court of Justice against the law, Mandelblit stated that the law is unconstitutional and should be disqualified. Yet in the opinion on “market regulation” it turns out that the principle underlying this expropriation law is acceptable to him, and the question is only under what conditions it is permissible to apply it.
On December 13, 2018, the attorney general held a discussion on the implementation of the principle of “market regulation” in cases where the authorities wishes to initiate the process and not only as a response to petitions relating to construction on private land by settlers. This summary is a blueprint for actual implementation of the Regulation Law.
In a summary of the discussion, the attorney general stated that “governmental action is now required for rapid examination and approval of the places in which administrative evidence exists for the applicability of section 5 and its various components.” In other words, the government can examine and find those cases in which the land can be expropriated on the basis of “market regulation,” and then can implement the expropriation.
In addition, the Attorney General presented some of the questions in which a legal and political decision is required and pointed out directions for their solution:
A. What are the conditions to determine whether a certain area can be expropriated? The legal advisor did not enumerate the conditions and did not set detailed criteria, but mentioned that in order to determine that the construction was done in good faith it should be “… [an area] in which investments were made in the past by way of construction, development or the existence of an approved detailed plan.” At the same time, he states that “a decision is required regarding … areas where investments have not been made as aforesaid.” (It should be noted that the legal advisor did not write who made the investments, and the question arises whether investments made by municipal or even private entities such as Amana may be evidence of the required good faith).
B. Is it possible to promote new construction and not only to regulate old buildings? The legal advisor added that it was necessary to decide whether it is possible to promote new construction on private land in a situation where the land has not yet been allocated to private purchasers, or if there is a valid plan, but no building permit has yet been issued. Such may be cases in which when the construction plan was approved, the Civil Administration believed that the land was public (according to the declaration of state land), but following an examination by the Blue Line Team it turned out that the land was cultivated and was mistakenly included in the declaration of state land. In such a case, the question arises as to whether, as long as no one has yet built or was granted any rights to the land, the expropriation should be avoided, or if a plan has already been approved and investments made, new construction may be carried out.
C. How will the land be allocated to the settlers? The question concerns whether the settler who invaded the land will automatically take over the land or whether it should be done by or with the approval of the Custodian of Government Property.
D. Who will decide whether it is possible to apply the “market regulation” and expropriate the land? The attorney general presented two options for action: one is the “legal track” whereby the state will have to appeal to the court to approve the expropriation. In this case, it is necessary to determine which court would rule on this. The AG suggests three options: 1. The Appeals Committee at the Military Court; 2. A new tribunal in the Military Court; or 3. the Jerusalem District Court. The legal advisor left the choice to the political echelon.
The second option was the “administrative track,” whereby there will be no need to appeal to the court, but the internal mechanisms of the authorities may determine, in accordance with the legal advisor’s instructions, whether the land is suitable for expropriation under Section 5 or not. At the same time, the attorney general determined that in the case of an “administrative track”, there are still a few decisions required on several legal issues and that he intends to prepare a supplementary summary for this purpose.
According to the legal advisor, the legal track is open to the government right now, and there is no need to wait for decisions on all the issues that are supposed to be decided in the supplementary summary prepared by the advisor.
In conclusion, Attorney General Mandelblit is paving the way for the actual implementation of the Regulation Law. In fact, all that is required to begin legalizing illegal construction on private Palestinian land is a decision by the political echelon (perhaps the defense minister, perhaps of the entire government) regarding the judicial instance that will deal with “expropriation requests” submitted by the state. Subsequently, the legal advisor will prepare a supplementary opinion that is intended to enable the State to make the decision independently without having to turn to the judicial court.
To read the discussion summary from 13/12/18 that enables the initiated action of the implementation of the market regulation – click here.
To read the summary of the discussion that constitutes the guiding legal opinion regarding the market regulation – click here.
To read the state’s response to the plan in Ofra – to implement the expropriation according to the market regulation – click here.
2. The Government Endorses a Bill to Expedite the Legalization of Outposts
The Ministerial Committee for Legislation approved the government support of the so-called “Young Settlement Bill“, which would charge the state to legalize 66 illegal outposts in the West Bank within two years. The bill would also make these outposts eligible to receive municipal services, budgets, various types of infrastructure and even governmental guarantees for mortgages for illegal structures.
While some of those services are already being granted to outposts by some authorities unofficially and illegally, the bill seeks to make it official and legal. It is also worth noting that Deputy Attorney General Razi Nizri who attended the meeting of the Ministerial Committee for Legislation, who approved the government’s support to the bill, warned the ministers of problematic and illegal consequences of the bill. First of all it would allow in a wholesale manner many violations of laws, and second of all the bill implies that those who violated the law and intruded into private or state lands, will automatically receive rights to the property.
Peace Now in response to the approval of the Young Settlement Law in the Ministerial Committee on Legislation: “Another populist and unconstitutional initiative is approved by the settler government, and only in such a state can an ‘illegal settlement’ be classified as a ‘young settlement.’ The settlers’ violence against Palestinian passerby that we witnessed during the weekend is a direct result of the governments policy and of such bills that actually telling the settlers that they are above the law and whatever violation of the law the make, the government will legalize it.”