The newly passed Settlement Arrangements Law has already faced its first test. On Tuesday, the High Court ordered the demolition of 17 homes in the Tapuach West outpost, a part of the central Shomron town of Kfar Tapuach, after far-left group Yesh Din filed a petition on behalf of absentee Palestinian claimants who said they had owned the land in the past. The government has until April 2018 to remove the homes.
The reason for the delay is to allow the government time to complete its efforts, already underway, to legalize the site. The court added that in the absence of definitive evidence regarding ownership, and the fact that the petitioners were unable to gain access to the land anyway, there was no reason not to give the state a chance to legalize the homes.
The Tapuach West ruling comes a day after the Knesset passed, on its second and third reading, the Settlement Arrangements Law. It will now technically come under the aegis of that law, under which the government has a right to arrogate the land and offer equitable compensation to the alleged owners, similar to the process of eminent domain. It should be noted that under Israeli military law, a claim of ownership based largely on the say-so of alleged former owners of land is sufficient for the High Court to rule that homes built on that land should be demolished. Under the new law, such rulings will no longer apply in these cases.
By April 2018, indeed, it will be clear if the Settlement Arrangements Law is the law of the land, as the High Court is expected to rule on its legality long before that. Leftist groups have vowed to petition the court to declare the law unconstitutional, despite the fact that Israel does not have a constitution. Speaking on Israel Radio Tuesday, Tourism Minister Yariv Levin said that after many years as an attorney, “I am still searching high and low for this document that everyone refers to. The bottom line is that Israel has no constitution, and the attempts to force a constitution on Israelis by a small group of judges who elect themselves in backroom decisions and impose their will on the rest of us is as undemocratic a process as I can imagine.”
Legal opinions on whether or not the court will declare the law illegal are varied, with some experts, like former Justice Minister Daniel Friedman, saying he expected the court to strike it down, as he told Army Radio Tuesday. On the other hand, Justice Minister Ayelet Shaked, one of the sponsors of the bill, said that legal experts from Israel and abroad had examined the law in depth and believe it could be defended legally.
However, the man who is supposed to do that defending — State Attorney Avichai Mandelblit — has said that he is not prepared to defend the law before the High Court. Although backers of the bill have condemned that stance, it is likely to have an impact on how the court sees the bill.
A report on Channel Ten said that Mandelblit’s position did not mean the government was conceding the outpost issue to the mercies of the High Court. If the court does strike down the law, according to the report, Mandelblit is prepared to defend residents with a “Plan B” — specific legal defenses for each of the areas where legal challenges are likely. If a petition is filed demanding that residents of homes on a parcel of land be removed because the homes are built on Palestinian land, the state will tell the court that it is prepared to “actively defend” the residents and is investing assets and efforts into arranging a deal with the claimants, including giving them compensation in land or money. According to the report, Mandelblit believes this will be sufficient to enable residents of many of these disputed homes to remain.