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Israel's top court says state must prove frozen outpost law constitutional

A new Israeli law legalises dozens of wildcat settlement outposts such as Kfar Tapuah West
Jaafar Ashtiyeh (AFP/File)
There are suggestions to enact legislation that would stop the High Court's from striking down law

In another blow to supporters of controversial legislation aimed at retroactively legalizing West Bank outposts -- settlement properties built on Palestinian land, unsanctioned by Israel -- the country's High Court of Justice on Monday required the state to explain why the new law should not be struck down on constitutional grounds.

Chief Justice Esther Hayut wrote that the government has until February 25 to put together a response justifying the legality of the law while it remains on hold due to the interim injunction issued by the court back in August.

The law passed last February allows the Israeli government to expropriate private Palestinian land ex post facto where illegal outpost homes have been built, given two conditions: First, that the outposts were either established “in good faith” or with government support; and second, that Palestinian owners receive financial compensation for the land.

The order further shifts the burden of proof to the state and makes it unlikely the law will survive, as the state had already submitted its initial response in defense of the legislation.

The final decision on the matter will be decided by an expanded panel of the court’s nine justices.


The Times of Israel reported that left-wing Yesh Din human rights group lauded the High Court’s decision, while the pro-settlement Regavim group said Hayut’s decision “set a dangerous precedent that undermines the authority of the Knesset.”

A tendentious workaround has been suggested to enact broader legislation that would prevent the High Court from interfering with such laws passed by Israel’s parliament.

The legislation was enacted after Israeli security forces demolished a carpentry workshop in an illegally built Jewish settlement outpost in the West Bank last month where some 17 structures were slated for demolition.

The woodshop, a memorial to fallen IDF soldiers, and 15 homes in the outpost were ordered razed by the High Court of Justice, which sided with a petition filed by Peace Now and several other Palestinian organizations that said the structures were built on privately owned Palestinian lands.

- Attorney General Mandebilt’s qualified opposition -

While the Attorney General Avichai Mandelblit does not support the legislation, his opposition seems more to do with nuance: in his official response that he was required to submit to the court, he qualified he explained that the legislation’s intention of regulating illegally built West Bank homes could be realized through other means already in place.

He wrote that roughly one-third of homes built on private Palestinian land, which experts estimate around 4,000, could be legalized through “market regulation” and other legal or bureaucratic means.

Abir Sultan (Pool/AFP/File)

The international community considers all Jewish settlements to be illegal, but Israel distinguishes between those it sanctions and those it does not, dubbed outposts.

Clashes between security forces and settlers have erupted during previous settlement evictions. In late January, a lengthy saga over the fate of the wildcat Amona outpost came to a head when hundreds of residents and thousands of their supporters were dramatically dragged out of the outpost which was later demolished.

The Amona eviction prompted Israel to push through the controversial legislation retroactively legalizing several thousand settler homes built on private Palestinian land in the West Bank on which Israelis built without knowing it was private property or because the state allowed them to do so.

The bill has been frozen by the country's High Court since August.


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