High Court Rejects Expropriation Law – Here’s Why

On 9 June 2020, the Expropriation Law (officially the “Law for the Regularization of Settlement in Judea and Samaria”) was struck down by the High Court, following a 2017 petition of Peace Now, Association for Civil Rights in Israel (ACRI), and Yesh Din, as well as other petitions by a host of NGOs and local Palestinian authorities. The law had been passed in the Knesset in February 2017, before being tied up in these court petitions. 
The Expropriation Law was designed to pave the way for legalizing dozens of illegal settlement outposts and other structures under the argument that if settlers had built in good faith on private Palestinian land, the authorities could expropriate the land from the Palestinian owners and allocate it to the settlers, while the owners would be entitled for compensation.
On the day of the High Court’s ruling, Peace Now issued a joint statement with ACRI and Yesh Din: 
“The Regulation Law was a black mark on the Israeli Knesset and on Israeli democracy, and the High Court of Justice has ruled the obvious: thou shalt not steal. We are proud that we served as the responsible adult that fought tirelessly to stop it. It was our duty to prevent the harm it threatened to Palestinians living under occupation, as well as to the prospects of peace. The law was of a criminal nature, designed to retroactively legalize thievery and allow systematic plundering of land. We have curbed this unsuccessful attempt to expropriate private land of a people, living under occupation by a government they did not choose, for the benefit of new settlements aimed at fragmenting the West Bank. Although the Court avoided ruling on whether the Knesset has jurisdiction to legislate over the Occupied Territories, it deemed that such legislation is problematic (to say the least). This raises a red flag to the peddlers of annexation. Let it be clear: If the Government of Israel goes ahead with its plan to annex, it will authorize the harsh damages the High Court sought to prevent by revoking this law.”
Main reasons why the High Court struck down the Expropriation Law
  • Violates right to equality – The Court found it unjust that the law would only apply to Israelis expropriating Palestinian land, and not vice versa or even Palestinians expropriating Palestinian land. The Attorney General, who ultimately opposed the law, claimed the Knesset is sovereign in the West Bank and therefore must adhere to the Israeli Basic Law on Human Dignity and Liberty. Peace Now and the other petitioners argued the Knesset was not sovereign in the West Bank but rather the military commander (Civil Administration), and that international law and its rights to equality and non-discrimination applied. Rather than adjudicating on their claim, the court determined that both arguments lead to the same conclusion, that Palestinians are entitled to equality. The Israeli state position had been that Israelis have a different relationship with the authorities than Palestinians, and so should be treated differently. This argument was rejected. In not accepting the Attorney General’s argument that Israeli Basic Law is what applies in the West Bank, the Court pointed out that (for 53 years) the military commander has been the legislator, and that if Israel wishes to change this norm it needs to be done officially and clearly (implying annexation).
  • Violates right to property – Same issue with right to equality.
  • Does not serve a legitimate purpose – Most purposes presented by the state for why expropriating Palestinian private land was allowed were deemed illegitimate. Only one was not categorically rejected: preventing harm to the settlers, who would have to leave their houses. In this case, the Court pointed out that there are other ways to mitigate this unfairness (compensation with money and housing), and that it is not proportional to just continue using someone else’s land. 
Three Precedents
  1. The military commander’s responsibility to legislate in the West Bank was upheld (more strengthening a norm than a precedent)
  2. Right to equality of Palestinians and settlers – Both are under the military commander; both need to be treated the same when it comes to its legislation (of course Israelis still have all their other rights as citizens, beholden to Knesset laws.
    (This precedent might help in many other cases. For instance, in Peace Now’s recent petition on E2 it argues that since 99.76% of all Israeli state land allocations have gone to Israeli purposes, this constitutes discrimination against the Palestinians, who make up 86% of the West Bank. Now this discrimination claim has more validity). 
  3. Disqualifying the Salim Joubran opinion in the Amona court case that settlers should be considered a local population – Joubran’s opinion from the 2017 Amona evacuation ruling had created a non-binding precedent that settlement proponents and the Attorney General have used to claim that privately-owned Palestinian land may in cases be expropriated (e.g. to build a road) on behalf of the settlers in the West Bank. The Court’s dismissal of this position brings the norm back to where it was before this 2017 case, when settlers were not considered part of the local, protected population. 

Background Reading