Welcome to FMEP’s Weekly Settlement Report, covering everything you need to know about Israeli settlement activity this week.
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June 8, 2018
- Government to High Court: The “Regulation Law” Has Flaws, But Striking it Down Would ‘Undermine the Knesset’s Sovereignty’
- Attorney General to High Court: “Regulation Law” Should Be Overturned, But Not Because of International Law
- Petitioners to High Court: Settlement “Regulation Law” Violates International Law, Must Be Struck Down
- Knesset Pushes De Facto Annexation with New Tax Legislation
- Settlers Plan Protest Against Netiv Ha’avot Outpost Demolitions
- Defense Ministry Reassures Knesset About Plan Stop “Palestinian Takeover” of Area C
- Wild Wild West: Government Funded Horse Farms Built Illegally on Palestinian Land
- Bonus Reads
Comments, questions, or suggestions? Email Kristin McCarthy at email@example.com.
Government to High Court: The “Regulation Law” Has Flaws, But Striking it Down Would ‘Undermine the Knesset’s Sovereignty’
The Israeli High Court of Justice heard oral arguments on the settlement “Regulation Law” on Sunday, June 3rd. The law was passed by the Knesset in February 2017 to provide an avenue for the Israeli government to seize privately owned Palestinian land for settlements and outposts. For a more detailed explanation and chronological documentation of the “Regulation Law” and the events related to it, see FMEP’s tables tracking annexation policies here.
The Israeli government was represented by private attorney Harel Arnon, and the Israeli Knesset was represented by attorney Eyal Yinon. Though arguing separately, Arnon and Yinon made some of the same flabbergasting arguments in defense of the extraordinary concept that Israel can and must legislate laws for the occupied territories, outside of Israel’s sovereign borders, and that in doing so it has the right, and even the necessity, to trample the basic concept of the sanctity of private property ownership. Their defense, which reads like a laundry list of the classic logic fallacies, argued (and threatened):
- False Dilemma/False Choice fallacy: Arnon admitted, “It’s possible to find a flaw here and there; but in the end, there is no other solution.” Yinon argued that the Court should try to fix the law instead of striking it down.
- Slippery Slope fallacy: Arnon argued, “The Knesset has the right to dictate the rules of the games of the legal system” threatening, “If the High Court lets international law trump Israeli Knesset laws, then soon it will need to worry about petitions against Israeli control of the West Bank and Golan areas which until now were not in play.”
- Two Wrongs Make a Right, Tu Quoque (“you too”), and False Dilemma/False Choice fallacies: Since the government helped finance and plan settlements and outposts built on private Palestinian land, it cannot punish the settlers now. Arnon said that the government has “spoken in two voices,” on the one hand financing the settlements, and then calling them illegal in retrospect.
- Appeal to Pity fallacy: The lawyers doubled down on the “distress of the settlers” argument made in written defenses submitted to the Court last year. They argue that the law is a response to the plight of Israeli settlers whom government has thus far left hanging out to dry. Yinon argued, “extraordinary measures must be taken to address the real distress” of the settlers.
- Appeal to Ignorance and Equivocation fallacies: Arnon argued, “I do not know of a case in which they [the government and/or the settlers] took control of private land and expelled its owners. These are lands that were uncultivated and unregulated, and there was a basis for assuming that they would become state land in the future.” The argument suggests that legal ownership of the land is a technical and irrelevant matter. It also suggests that the Palestinians did not use or want their own land — until Israelis took it — and they are just trying to cause problems.
- Ad Hominem fallacy: Arnon told Israel Radio that the petitioners have “a political motive, and not concerns for the landowners’ interests…” He also noted that “the law allows for generous compensation or alternative land, while leaving the settlers in their homes.”
- Straw Man fallacy: Arnon asserted that the effort to strike down the law “has only one purpose – to destroy the settlement enterprise.”
Arnon ventured to give the High Court three government-approved ways to move forward: allow the Regulation Law to stand, warts and all; amend the law by somehow shrinking its scope; or withhold judgement on the law and instead instruct the Knesset on how to amend the law so that it does not run afoul of the Court. The High Court does not have to choose any of Arnon’s options.
Attorney General to High Court: “Regulation Law” Should Be Overturned, But Not Because of International Law
Attorney General Avichai Mandleblit – who has made his opposition to the legal framework in the “Regulation Law” abundantly clear by refusing to represent the government in the case – was not present for the oral arguments at the High Court this week, but his office was represented by attorney Anar Helman. Helman told the court:
“In the attorney general’s opinion the Regulation Law is null and void…In the attorney general’s view, the dominant feature of this law is insensitive to human rights of those whose rights were violated—the Palestinian resident who have rights over the lands. There is no balance…Neither the Palestinians’ nor the Israeli citizens’ right to property is absolute, but the Regulation Law’s purpose is not to strike a balance (between the two) but to mainly promote the regulation for the betterment of Israeli settlements.”
Helman called for the law to be struck down based on Israeli domestic law, but lended the Attorney General’s support to the utter disregard for international law which formed the basis of the Knesset and State’s defense of the law (see the section above). Helman told the Court to put aside issues of international law, to be decided on another day.
Helman’s hedging on international law is consistent with the Attorney General’s prescription of an alternative legal basis by which Israel can (and should) regulate land disputes in the West Bank. In his written opposition to the Regulation Law, AG Mandelblit endorsed the concept of expropriating privately owned Palestinian land for settlements based on the “Market Regulation” principle. That principle – which is being swiftly adopted by the Israel government as a new and powerful tool to – justifies the Israeli government expropriating privately owned Palestinian land in order to retroactively legalize settlement structures and outposts, based on the fact that the illegal settler construction was undertaken “in good faith.”
Notably, Chief Justice Hayut criticized all three attorneys who argued on behalf of government bodies for having “openly avoided those issues” of international law.
Petitioners to High Court: Settlement “Regulation Law” Violates International Law, Must Be Struck Down
The groups challenging the Regular Law – including Yesh Din, Peace Now, Adalah, and ACRI on behalf of 40 Palestinian local councils – presented the Court one straightforward, clear-cut, legally decisive argument: The “Regulation Law” violates international law. This is the very same argument that the lawyers representing the State, the Knesset, and the Attorney General attempted to persuade the Court to completely reject or ignore.
Attorney Michael Sfard, representing Yesh Din, argued that international law only allows an occupying power to temporarily seize land for security needs, not to “take land from Mousa [in order] to give it to Moshe.”
Representing Adalah, attorney Hassan Jabareen argued that the basic premise of the government’s defense – that the Knesset has authority to legislate Palestinian affairs in the occupied West Bank – is illegitimate. Jabareen explained that the Knesset’s assertion of power over West Bank affairs (and the government’s defense of it) constitutes a “legal revolution” which seeks to change the norm that has maintained a separation between Israel’s domestically elected government and the Israeli military’s administration of the occupied territories.
Attorney Suhad Bishara, representing Adalah, told the High Court, powerfully:
“This law, intended to authorize theft of land, is illegitimate and violates international humanitarian law. This law makes the Palestinian invisible. They take from me because I am Palestinian. Legally, I do not exist. My rights do not exist. They take from me by force because I am under occupation.”
The Knesset’s Interior Committee sent a bill to the Knesset plenum which seeks to extend Israeli law into the West Bank (an act of de facto annexation) in order to send certain Israeli tax revenues to settlements. Current Israeli law allows tax funds to be transferred between communities inside of sovereign Israel, a tax sharing arrangement that stops at the Green Line; the bill advanced this week will allow a one-directional transfer from Israel into West Bank settlements, with the Interior Committee discussion making it clear that the law will not allow tax revenue from wealthy West Bank settlements to be brought into sovereign Israel.
The Haaretz Editorial Board eviscerated the bill in a piece titled “The Knesset Wants Apartheid.” In it, the Editors write:
“The current Knesset is persistently carrying out a creeping legal annexation of the occupied territories, applying more and more Knesset laws to the West Bank while erasing the Green Line…This government is acting for the settlers’ interests on two levels: It is advancing bills intended to blur the distinction between the sovereign state of Israel and the settlements. At the same time, it continues to conduct clear financial discrimination in favor of the settlements, which receive much more generous government funding and have the status of a national priority region.”
Joint List MK Yousef Jabareen criticized the bill, saying
“its goal is to legitimize funneling municipal taxes and other taxes collected in Israel to settlements in the occupied territories…In practice this is another in a series of annexation bills the rightist government is advancing to apply Israeli law beyond the Green Line.”
Peace Now slammed the bill, tweeting:
“Are you an Israeli within the Green Line? The @netanyahu govt is advancing a bill to send your property taxes from localities within Israel to those in the settlements. As for Israeli communities affected by Gaza rocket fire, for this govt they take a back seat.”
The flow of tax revenue from sovereign Israel into the settlements is a complex and multifaceted issue. According to Adva, an Israeli NGO which produces an annual report documenting the price of the occupation, approximately 25% of Israel’s annual budget goes to the Defense Ministry, which administers all affairs in the Occupied Territories. However, the Defense Ministry is a black hole when it comes to its books, and it is unclear how much of the government’s tax-payer funded budget goes towards settlements or the occupation more generally. If passed into law, this new bill will only add to the extraordinarily high cost of the occupation that is levied on Israeli taxpayers.
Settlers from the Netiv Ha’avot outpost are planning a final protest against the demolition of 15 structures in the outpost which are slated to be demolished on June 12th. According to a report from Arutz Sheva, a settler-aligned media outlet, the settlers and their allies are planning to rally against the demolitions as they take place. Just this week a group of settlement-based rabbis penned a letter calling for the Israeli public to join the demonstration.
According to a seperate report by the Arutz Sheva, the head of the IDF Central Command has been negotiating with the settlers regarding the protests. Under a reported agreement, “violence is not expected, and there will be passive resistance in 2 of the 15 houses” (whatever that means). Last year, when the IDF moved in to demolish another structure in the Netiv Ha’avot outpost protests against the demolition turn (mildly) violent. Israeli soldiers had to drag settlers out of a building one-by-one, and settler set tires on fire in an attempt to prevent the IDF from reaching the unauthorized structure.
The planned demolitions are just the latest development in the saga of Netiv Ha’avot. After a protracted legal battle the High Court refused to compromise on the demolition plan, so the state and the Knesset has been advancing legislation that will retroactively legalize the entire outpost, creating in effect an entirely new, official settlement to house the settlers who will be displaced by the demolitions next week, and – to top it all off – to create a slush fund to pay-off the settlers impacted by the demolitions.
A report from the settler-aligned (and Sheldon Adelson-backed) media outlet Israel Hayom detailed the proceedings of an emergency hearing – held by the Knesset’s Foreign Affairs & Defense Subcommittee on Judea and Samaria – entitled, “the Palestinian Authority’s strategic takeover of Area C.”
During the hearing the Defense Ministry’s settlement affairs secretary, Kobu Eliraz, told Knesset members that the Defense Ministry is “familiar” with the Palestinian Authority’s alleged efforts to take over Area C and is “pursuing operative, legal and administrative measures to stop it. We have an orderly work plan in place that includes clear objectives.” Eliraz also noted that the Defense Ministry has stopped nearly all “illegal” funding from the European Union for Palestinian communities in Area C.
Colonel Uri Mendes, deputy head of the Civil Administration, was also in attendance and noted that the Civil Administration (which is the body of the Israeli Defense Ministry which, under current Israeli law, acts as the sovereign power administering Palestinian affairs in the West Bank) meets once a month to discuss illegal Palestinian construction in Area C.
The Knesset committee hearing and the comments of the Defense Ministry officials represent an extraordinary manipulation of the facts regarding Area C — a term which refers to the 60% of the occupied West Bank which the Oslo Accords temporarily assigned to complete Israeli control (civil and security) as part of an interim agreement designed to remain in place for a short period pending conclusion of final status negotiations. Since then, Israel has implemented a discriminatory planning policy in Area C, which B’Tselem says is aimed at “preventing Palestinian development and dispossessing Palestinians of their land.” While implementing a planning system under which it is nearly impossible for Palestinians to obtain building permits, Israel routinely enforces demolition orders against Palestinian structures built without the permissions.
The facts well-documented facts regarding construction, demolition, displacement, and settlement growth show clearly that it is, in fact, Israel who is implementing an unapologetic and undisguised takeover of Area C. Members of the Knesset and the Defense Ministry do not try to hide that fact, evidenced not only in the subcommittee hearing but also in the growing call for Israel to unilaterally annex Area C. Just this week, punctuating the effort to normalize Israeli de facto annexation of Area C, Israeli Foreign Minister Tzipi Hotovely asked the travel site TripAdvisor to designate “Israel” as the location of hotels that are located in Area C settlements (the site currently lists the location, accurately, as “Palestinian Territories”). In a letter to the CEO, Hotovely argued that “There must be no politicization of sites in Judea and Samaria that fall under Israeli control.” TripAdvisor declined the suggestion, replying that the site “complies with international tourism industry standards.”
A new report by Kerem Navot, titled “Blazing Saddles,” reveals that government-funded horse farms in the West Bank are an increasingly popular and effective way in which settlers are illegally seizing Palestinian land.
The report maps the locations and examines the legal status of 65 such horse farms: 28 are professionally operated as business ventures, while the remaining 37 are private, hobby stables. In total, 31 horse farms (11 professional and 20 private) are built partially or entirely on privately owned Palestinian land.
The report also explains how government money is flowing to many of the professional horse stables through healthcare organization which fund therapeutic riding lessons as a treatment for patients (many of whom are living in sovereign Israel and traveling to the West Bank settlements for riding lessons).
Kerem Navot also reports:
“Illegal construction of stables and horse farms in settlements and outposts is also well known to the civilian body responsible for enforcing planning and construction laws in the West Bank, namely the Civil Administration. Over the years, the Civil Administration’s supervision unit has issued no fewer than 44 demolition orders for illegally constructed Israeli structures that are used as stables and horse farms. Needless to mention, as with the vast majority of demolition orders issued by the Civil Administration over the years for thousands of structures in settlements and outposts, in most of these cases nothing was done to implement the orders, evacuate the structures, demolish them, or punish the perpetrators.”