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High-risk Regularization

Viewpoints, December 2016
Dr. Leslie Susser

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In trying to save the tiny West Bank hilltop settlement of Amona, Prime Minister Benjamin Netanyahu has been pushed into far-reaching legislation that could have major repercussions for Israel’s relations with the international community and the viability of the two-state solution.

The so-called “regularization bill,” which ironically in its modified form does not apply to Amona, seeks to legalize dozens of other unauthorized settlements similarly built on privately-owned Palestinian land.

Right-wingers are hailing the early December preliminary passage of the bill as a historic step on the road to annexing most if not all of the West Bank, while the center left sees it as a blow to the rule of law and a dangerous move towards international isolation.

The legislation could still be struck down by the High Court of Justice as unconstitutional. Attorney General Avichai Mandelblit, who is also the government’s most senior legal adviser, has already said he won’t defend it in court.

If the legislation is indeed annulled by the High Court, a major constitutional crisis is certain to ensue, with right-wingers demanding that the Knesset be empowered to override court rulings on issues of constitutionality.

The evacuation of the unauthorized West Bank outpost of Amona in February 1, 2006; Credit: Avi Ohayon / GPO

The evacuation of the unauthorized West Bank outpost of Amona in February 1, 2006; Credit: Avi Ohayon / GPO.

The regularization bill was always going to be a hard sell for jurisprudence in a democracy, let alone an occupying power.

In both its original and modified form it entails violation of basic property rights – the state arbitrarily expropriating land belonging to one set of individuals (Palestinian) and handing it over to another (Israeli). True, in Israel and other democracies the state can and does expropriate privately-owned land – but only for public purposes.

In the case of Amona, the bill in its original form would also have meant retroactively flying in the face of a hard and fast High Court ruling that the illegal settlement must be demolished and its inhabitants relocated by December 25.

To meet the charge of retroactive legislation, the paragraphs relating to Amona and other settlements on which the High Court has ruled have been removed. Also in the modified version, the expropriated land goes to a public body and the settlers are afforded only “usage” not ownership rights. These moves, however, failed to convince the attorney general, who still regards the proposed bill as unconstitutional, in violation of international law and unlikely to pass High Court review.

“Netanyahu has managed to avoid a major coalition crisis with the right-wing Bayit Yehudi. The question is at what cost”

The amendments also leave the government still facing the Amona issue. It wants to move the settlement and the settlers to an adjacent parcel of land belonging to absentee owners. This would initially be for eight months, and then renewable for three year periods on the assumption that the absentee owners remain absent.

The settlers, however, are not interested. They say they intend to resist their evacuation. That could turn ugly.

Worse: If the legislation does go through Israel could find itself at odds with most of the international community. Not only could the controversial legislation play into the hands of the BDS (Boycott, Divestment and Sanctions) movement, there could be serious repercussions among countries friendly to Israel, including the US – both because of the undemocratic substance of the legislation and because of its detrimental impact on the internationally preferred two-state solution.

Moreover, Mandelblit points out that the International Criminal Court at The Hague is already conducting a preliminary enquiry into a litany of Palestinian grievances, including complaints over illegal settlements like Amona. And he warned Netanyahu and the cabinet that passing the regularization bill could pave the way for a full-fledged investigation of Israeli leaders involved in the decision-making.

By going along with the proposed legislation Netanyahu has managed to avoid a major coalition crisis with the right-wing Bayit Yehudi. The question is at what cost.

The right wingers are placing their hopes on US President-elect Donald Trump. They see in the election of the putatively settlement friendly Trump a unique historic opportunity to annex most of the West Bank with the regularization legislation a significant first step in that direction.

But will Trump once in office abandon traditional American policy which has consistently excoriated the entire settlement enterprise as illegal?

The right wingers could be in for a surprise. And by pressing for all the settlements they could jeopardize the American-led international consensus over the large settlement blocs remaining in Israel as part of a two-state solution.

Dr. Leslie Susser has covered Middle East peacemaking from the Begin-Sadat breakthrough in the late 1970s to the present day.