February 14, 2017
Israel’s New Settlement Law Draws Heavy Media Fire—But It May Be a Tempest in a Teapot
Dear Friend of FLAME:
Even the most stalwart Israel supporters may have been rendered sheepish—or even outright embarrassed—by a new law passed by Israel’s Knesset last week. The law legalized some 3,900 homes ostensibly built on private Palestinian land in a section of Judea-Samaria (the West Bank).
Most, if not all these homes, were built on unoccupied and unused land by settlers who apparently did not know of Palestinian claims to the land, and whose supporting deeds may be decades or more old.
Despite the harsh condemnation leveled by many media, the Knesset action can actually be seen as exercising a form of eminent domain, the principle used by any government to appropriate—with compensation—land from its rightful owners for use for highways or other civic developments.
The rub is that this land is not in Israel. Even the most full-throated Zionist must admit that Israel doesn’t “own” this territory—has not annexed it generally—let alone the individual plots of land in question. In short, this land is at best disputed and will likely remain so until Israel reaches some type of long-term accommodation with the Palestinians.
No wonder the so-called international community—to say nothing of many even in the center and right of the Israeli political spectrum—have raised a hue and cry denouncing the Knesset action. Even PM Benjamin Netanyahu is said to have opposed the measure.
Ironically, the new law comes in the wake of another ruling on Israeli settlements—this one a court-ordered dismantling of the Amona settler community, most of which was built on West Bank land that was proven unequivocally to be Palestinian owned.
Suffice it to say that few media or Israel critics at the United Nations could be found praising the Jewish state for its adherence to the rule of law in the Amona case.
Perhaps most importantly, it appears the new Knesset law that has drawn so much fire in Israel and abroad is likely to be overturned by Israel’s Supreme Court.
This week’s incisive FLAME Hotline article (below), by journalist Barney Breen-Portnoy, breaks down the analysis of renowned international legal scholar Dr. Eugene Kontorovich on the key issues surrounding this case—especially why it is nowhere near as momentous or damning to Israel’s long-term reputation as many enemies and alarmists are threatening.
In case you encounter friends or colleagues (or your own children) railing against Israel about the new law, this week’s article will give you inside background on why the Knesset legislation was passed, why it is 100% legal, and why it’s also almost certain to be stricken in the coming months.
Finally, I hope you’ll also quickly review the P.S. immediately below, which describes FLAME’s current hasbarah campaign to expose the Palestinians’ funding of Islamic terrorists using U.S. taxpayer dollars.
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International Legal Expert: Widespread Global Criticism of Settlement ‘Regulation Law’ Passed by Knesset Is Unwarranted
By Barney Breen-Portnoy, Algemeiner, February 9, 2017
The widespread global criticism of the settlement “Regulation Law” passed by the Israeli parliament earlier this week is unwarranted, an international legal expert told The Algemeiner on Wednesday.
Referring to the law, which was approved by the Knesset on Monday by a 60-52 margin, Dr. Eugene Kontorovich—a professor at Northwestern University’s Pritzker School of Law and head of the international law department at the Kohelet Policy Forum—asserted, “Every single thing being said about it is a misnomer.”
“For example,” he stated, “it does not violate international law. There has never been a principle of international law that one cannot take property with compensation. And all of the discussions that are cited to prove that it’s illegal are cases in which there was no compensation offered, which is an entirely different thing.”
“It’s very unusual that an occupying power offers compensation,” Kontorovich went on to say. “But in the cases where they have—and one can point to Turkey and Northern Cyprus, and Russia and Crimea—the international community never criticized this even a little bit. Basically, this is a rule that has never been mentioned before, that has never been thought of before, and that is, like many things, being made up just because of the parties involved. It was invented for this case and will never be used again.”
On Tuesday, it was reported that Israeli Attorney General Avichai Mandelblit—who has expressed his opposition to the law — might argue against it in court, a possibility that Kontorovich called “unusual, but far from unprecedented.”
Kontorovich predicted there was a “100% chance” the law would be struck down by the Israeli Supreme Court.
“That’s not because of its legality, that’s because the court is taking its instructions from the attorney general and the European Union, and they [Israeli Supreme Court judges] are very scared of being perceived as doing something that people whose opinions they value don’t like,” he claimed.
In a Just Security article published in December, Kontorovich went into further detail explaining the rationale behind the controversial legislation, saying it sought “to solve a situation in which, over several decades, over one thousand Israeli homes in West Bank settlements have been built in open areas to which Palestinians subsequently asserted property claims, typically based on broad give-aways of state land by the King of Jordan during the Hashemite occupation (1949-67).”
He continued: “The plots are generally open, uncultivated fields. The frequently used characterization of ‘private Palestinian lands’ is misleading. In the overwhelming majority of cases, no individual Palestinians have come forward to claim the lands. Indeed, in most cases, no property claimants asserted their interests for decades after houses were built, a situation that in common law would certainly warrant the application of adverse possession doctrines, under which long-term possession of property unprotested by owners can change legal title, exactly to prevent these kinds of conflict between long-term users and owners who slept on their rights.”
On Tuesday, Israeli Prime Minister Benjamin Netanyahu defended the law, with his office releasing a statement—quoted by Ynet News—saying, “This is a very balanced solution for land owners as well as for families facing the risk of evacuation and losing the home they have been living in for decades,” the PMO explained. “The aim of this law is to minimize the need to destroy houses built many years ago. It is important to stress that the law will only apply to a limited number of existing cases and is in no way a license to expropriate land.”
“Israel is a law abiding country,” the statement went on to say. “The State of Israel ascribes a great deal of importance to respecting the court’s decisions, and it will enforce the law among all sectors of the population, as has been proven by the painful evacuation of Amona.”
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