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Sandro Rosell
FC Barcelona President
Monday, September 25, 2017

While the United States has refused to condemn passage of the Regulation Law Monday night, Britain and the European Union slammed the legislation on Tuesday, saying that it threatened the pursuit of a two-state solution. Neither referred to the previous situation on Cyprus, when Greeks were allowed to recompense Turks for building on their land when the island was divided rather than abandon their home, this with the consent of the Hague Court.

The British government warned Israel in a statement Tuesday that the law would diminish the Jewish state’s position around the world.

The statement, issued by Minister for the Middle East Tobias Ellwood, comes on the heels of a meeting between UK Prime Minister Theresa May and Israeli Premier Binyamin Netanyahu.

"As a longstanding friend of Israel, I condemn the passing of the Land Regularization Bill by the Knesset, which damages Israel’s standing with its international partners," said Ellwood.

"It is of great concern," he continued, "that the bill paves the way for significant growth in settlements deep in the West Bank, threatening the viability of the two-state solution. We reiterate our support for a two-state solution leading to a secure Israel that is safe from terrorism, and a contiguous, viable, and sovereign Palestinian state."

The European Union also chastised Israel over the law’s passage, delaying a meeting between EU and Israeli officials long seen as a step towards mending strained relations.

The summit, slated for the end of February, has now been postponed indefinitely.

The Tazpit News Service reports that the bill intends to retroactively legalize housing units built by Israelis on privately-owned land in Judea and Samaria, by empowering the government to retroactively expropriate the land, so as to avoid having to evict the residents and demolish their homes. Due to the lack of clarity of land registration in Judea and Samaria, there are a large number of cases where land that was assumed to be public land, and therefore approved for settlement construction, was subsequently proven to be privately owned land.

The law will apply only in cases where the construction was carried out without prior knowledge that the land was privately owned. In addition, the construction had to have enjoyed implicit (statements or policies encouraging Israelis to build communities there) or explicit (electricity and water infrastructure, Egged bus service, municipal services such as garbage collection, government-funded buildings like ritual baths, etc.) government support. If those conditions are met, and an individual or family establishes ownership of the land, that subsequently turns out not to have been public land, but privately owned land, the law would empower the government to retroactively legalize the settlement, or those parts of it built on such land, by retroactive mandatory expropriation. The landowners would receive compensation in the range of 125 percent of the value of the land.

According to Peace Now, the bill would effectively legalize 55 outposts that are currently considered to be in violation of Israeli law, including 797 housing units, built over 3,067 dunams of Palestinian privately-owned land.

Additionally, the legislation would allow for the legalization of another 3,125 housing units in established settlements (those established with explicit government backing) and the expropriation of 5,014 dunams of privately owned land. Since the bill’s main purpose is to retroactively legalize illegal (under Israeli law) settlements via retroactive mandatory expropriation without due process, it has sometimes been referred to as the Expropriation Bill.

Joining in the growing international chorus of condemnation of Israel is the United Nations. On Tuesday, UN Secretary General Antonio Guterres slammed the passage of the Regulation Law, calling the move illegal under international law.

The Regulation Law was passed by a margin of 60-52 Monday night.

"This bill is in contravention of international law and will have far reaching legal consequences for Israel," Guterres said in a statement.

Ripple effects concerning the passage of the Regulation Law could be felt throughout Europe on Tuesday as the standard vilification of Israel’s inherent right of territorial sovereignty could be heard from world leaders.

French President Francois Hollande met on Tuesday afternoon with Palestinian Authority Chairman Mahmoud Abbas at the Elysee Palace in Paris.

The two attacked the Regulation Law approved in the Knesset on Monday at a joint press conference.

Hollande speculated that Jewish expansion paves the way for annexation, and even went so far as demanding that the Israeli government repeal the legislation.

Abbas asserted that "the controversial law is an attack against our people and defies the international community.”

"We will continue working with international tribunals to maintain our existence and perpetuity on our land," he cautioned. "The international community must not allow the establishment of an apartheid regime in the West Bank".

UN envoy to the Middle East Nikolay Mladenov disclosed earlier on Tuesday that the Regulation Law's passage "crossed a red line" for the organization.

A US State Department official told the AFP that the Trump Administration was "withholding comment" on the passage of the Regulation Law.

"The administration needs to have the chance to fully consult with all parties on the way forward," the official said.

Following the passage on Monday night in the Knesset of the “Regulation Law,” the US State Department seemed to take a “wait-and-see” approach - while, at the same time, calling on Israel’s enemies to withhold hostile action against Israel.

In response to the passage of the Law, a State Department official told AFP that the US administration was “withholding comment” in the meantime.

"The administration needs to have the chance to fully consult with all parties on the way forward," the official said, on condition of anonymity.

"At this point, indications are that this legislation is likely to be reviewed by the relevant Israeli courts, and the Trump administration will withhold comment on the legislation until the relevant court ruling."

At the same time, the official called on the Palestinians and their supporters not to challenge the law before the international community, claiming such action would be “counterproductive to peace.”

"We are concerned that other actors have said they may seek to challenge this measure in multilateral fora, including at the International Criminal Court," he said.

Jewish Home party Chair MK Shuli Mualem-Refaeli, one of the Regulation Law cosponsors, told Arutz Sheva about the efforts that preceded the bill's ratification on Monday night in the Knesset, and expressed hope that the law will prevent uprooting Jews from Judea and Samaria.

When asked if she believed the regulation law would have passed in the Knesset, she said: "To be honest, when Amona residents brought me the regulation bill, there were only two people in the Knesset who believed in it - MK Smotrich and myself. Even Minister Levin who introduced the law in the previous Knesset came to me yesterday after the vote and said, 'I didn't believe it, you were right.'"

MK Mualem stressed that no one in the coalition contacted her requesting to delay the vote until after the Netanyahu-Trump meeting. "The drama took place mainly in the media and in statements made by the Prime Minister before his departure for London. At no point was I contacted, in my capacity of chairman of the Jewish Home faction, with a request to shelve the legislation and not proceed according to the schedule established by the Knesset committee. I spoke with the coalition chairman yesterday morning and asked if there was a question, and the statement I received was that we work according to schedule."

When asked if she thought the regulation law would pass in the Israeli Supreme Court, she said: "Every issue central to the political field belongs in the Knesset which was elected by the people to lead the State of Israel. The entire question of Jewish settlement in Judea and Samaria should not be a legal matter. I refer the Supreme Court Justices and court President Naor to their own rulings, where again and again Knesset members are called upon to act, and yesterday we acted to normalize settlement in Judea and Samaria".

Tazpit News Service has also reported that Israeli Attorney-General Mandelblit has stated that in his opinion the regulation law would violate the constitution which is why he has refused to defend the law before the Supreme Court. Most legal experts and jurists agree with his position, although some believe it would not. Although Israel does not have a constitution, it is still subject to the unfulfilled commitment of the National Council to have one.

When the State was established, the National Council (Moetzet Ha’am) of the Jewish Community in Palestine was declared to be an interim parliament until elections for the first Knesset could be organized. The Council was mandated to be the country’s Aseifa Mekonenet” (Establishing Assembly) and to prepare a constitution for ratification.

This has never happened, but the commitment has never been abrogated, and every Knesset is technically also a continuation of that Aseifa Mekonenet, and will remain so until either this obligation has been met, or the Knesset decides this obligation no longer exists. Such a decision would have major ramifications. The Declaration of Independence (Megilat Ha’atzmaut) is still technically the basis for the still non-existent constitution, and as such has the legal standing of a constitutional document.

In the absence of a constitution, Israel has a series of basic laws that are considered to be constitutional legislation based on the Declaration of Independence. It was this legal situation that created the basis for the Supreme Court’s judicial activism. 

By: Andrew Friedman