HCJ 2055/17 Head of Ein Yabrud Council et al v. the Knesset

At the beginning of March 2017, 23 Palestinian village council heads and 13 human rights andCivil Society organizations – among them Yesh Din – petitioned the High Court of Justice to demand the court order the repeal of the law to expropriate private Palestinian land in the West Bank (The “Regularization Bill”). The petitioners also asked the court to issue a temporary injunction to prevent the State from advancing land expropriation proceedings.

The petition argues that the law – which passed despite opposition expressed by attorney generals of the government, Knesset and Ministry of Defense – is unconstitutional since it constitutes an explicit violation of the Basic Law: Human Dignity and Liberty; The Regularization Bill restricts the authorities’ discretion and compels them to prevent Palestinians from realizing their rights to use and administer their private land for an unlimited period of time. In addition, the law does not give Palestinians any channel for opposing the expropriation proceedings.

According to data collected by Peace Now, the law will lead to the expropriation of over 8,000 dunam (nearly 2,000 acres) of private land upon which structures have been built illegally – and tens of thousands of dunams of land on which agricultural crops have been planted. The land designated for expropriation is owned by thousands of Palestinians, among them many of the residents of the villages represented in the petition.

Furthermore, the law violates explicit prohibitions of International Humanitarian Law and the laws of occupation as well as international treaties Israel is a signatory of. Israel is obligated to uphold the human rights of the residents of the occupied territories and must not engage in the expropriation of property – unless absolutely necessary for urgent security purposes. The petition emphasized that the implementation of the directives of the law may put civilians and security forces who are asked to carry out war crimes at risk, as well as members of Knesset who voted in favor of the bill. In addition, the very legislation of the law constitutes a deviation from the Knesset’s authority, as it is not authorized to regulate property laws in a territory that is not under Israeli sovereignty.

“This is a law that blatantly torments its victims and awards criminals,” the petition states. “By legislating the law, the Knesset is trying to expropriate the rights to lands that are outside the sovereign territory of the state from people who are not civilians or residents of Israel, and as such, have no say and are not represented in a legislative proceedings that they are the victims of. This is literally the definition of a tyrannical regime.”

The government, in its response, which was submitted by a private attorney after the Attorney General refused to represent the government in the High Court of Justice, claimed that the law is a solution to a national necessity: “A humane, proportional and reasonable response to the genuine crisis of Israeli residents.”

The government added that in effect, the law benefits the Palestinian landowners, who are interested in selling their land but are unable to do so because of legal restrictions by the Palestinian Authority. It also claimed that the law stands the constitutional test of both Israeli and international law.

Nevertheless, the government did admit in its response that the chief purpose of the law is political – in other words, preventing the demolition of homes in settlements and outposts, even when they were built in violation of the law on private Palestinian land, and despite the fact that this is an infringement of the Palestinian landowners’ right to property.

Attorney General Avihai Mandelblit, on the other hand, has asked the High Court to strike down the law, arguing that it is unlawful and intended for a wrongful purpose. Mandelblit argued that law disproportionately impinges on Palestinian landowners’ right to property, indiscriminately allows for retroactive approval of illegal construction and discriminates against the Palestinian population. Mandelblit referred to the arrangement proposed in the law as a “sweeping and injurious arrangement” that prioritizes settlers’ rights over “the right to property of those holding rights to land in the area, no matter the situation”.

An additional petition against the law was submitted by seventeen Palestinian local authorities with Adalah, the Jerusalem Legal Aid and Human Rights Center (JLAC) and Al Mezan Center for Human Rights (HCJ 1308/17). The court heard both petitions together.

Twenty-eight lecturers and researchers at academic faculties and law schools in Israel who specialize in public law, international law and property law requested to join the petitions as amici curiae. In the opinion submitted to the court, these experts claimed that the Regularization Law is unusual in terms of the arrangement it proposes and the population it harms.

On August 17, 2017, the court issued an interim temporary order, freezing the law until it ruled in the petitions. On December 4, 2017, the court issued an order nisi in the petitions and decided on a hearing with an extended panel of nine justices. The hearing was held on June 3, 2018.

On June 9, 2020 the Israeli High Court accepted the petition and struck down the law with a majority of eight versus one. In their reasoning, the justices established that the law is unconstitutional because it harms the right to property and the right to equality of Palestinians in the West Bank. In their decision, the justices acknowledged the special status of the millions of Palestinians who live under Israeli military occupation and rule, and their right to protection of their fundamental liberties.

Use of a means that sweepingly seizes the right to use or possess land, or declare it “government property” presents a challenge because it collectively benefits those who built their houses unlawfully in a settlement – among other things – on privately owned [Palestinian] land. It includes “all land on which said settlement was built” without a case-by-case consideration of the issue of good faith, and imposes the arrangement on all land within the boundaries of a settlement, including land where there are no houses. It prioritizes their interests over the legitimate ownership interests of another population in this same area, and this is further challenged because this is a protected population and they have rights over much of the land in question. (paragraph 89 of the ruling)

Although the court refrained from deciding on the issue of the Knesset’s authority to legislate upon the occupied Palestinian territory, which is not subject to Israeli jurisdiction, it established that this creates significant challenges and it not cleared of doubt. The court instructed the government and the Binyamin Regional Council to pay legal expenses and fees of NIS 30,000 in each of the petitions.

Petition status: the petition was accepted, and the law was repealed.