The Knesset’s “Legalization” Bill vs. International Law

In response to the current crisis over the West Bank village of Amona—built on land to which Palestinian individuals have legal claim—the Knesset is currently considering a so-called legalization bill that would permit its residents to remain (their evacuation has been ordered by Israel’s supreme court) and would compensate the original owners. The bill has been condemned for various reasons, including for being in violation of international law. Eugene Kontorovich argues that the situation is not nearly so clear-cut:

The bill seeks to solve a situation in which, over several decades, more than 1,000 Israeli homes in West Bank settlements have been built in open areas to which Palestinians subsequently asserted property claims, typically based on broad giveaways of state land by the king of Jordan during the Hashemite occupation (1949-67). The homes are in communities built with some level of [Israeli] government involvement. Thus the bill provides that the government would compensate the landowners 125 percent of the value of the land, in order to allow the communities there to remain.

The plots are generally open, uncultivated fields. The frequently used characterization of “private Palestinian lands” is misleading. In the overwhelming majority of cases, no individual Palestinians have come forward to claim the lands. Indeed, in most cases, no property claimants asserted their interests for decades after houses were built, a situation that in common law would certainly warrant the application of adverse-possession doctrines, under which long-term possession of property unprotested by owners can change legal title, exactly to prevent these kinds of conflict between long-term users and owners who slept on their rights. Under Jordanian law, rules of prescription, which would turn the land over to its existing inhabitants, would apply. . . .

The central international-law argument against the bill is that it exceeds the powers of an occupying power over private property. Assuming, for the sake of argument, that the law of belligerent occupation applies to Israel’s settlements in the West Bank, the central question becomes whether that body of law prohibits eminent domain and similar land-use regulation by the occupying power. This argument has focused on Article 46 of the Hague Convention, which states that “private property cannot be confiscated.” Critics of the Israeli bill have broadly declared that Article 46 of the Hague Conventions absolutely prohibits any action involving private real property absent military necessity. This is not the established law, however, but rather one view of a longstanding debate.

Put simply, the ban on “confiscation” of real property does not mean a ban on expropriation, that is, a taking subject to just compensation. “Confiscation” in the Hague Regulations is a narrow term that refers only to certain uncompensated taking, which of course is the kind occupying powers may be particularly wont to make. To put it differently, “confiscation” does not cover all kinds of property taking or regulation, as is made clear in numerous military manuals that refer to an entire taxonomy of regulation, from confiscation to expropriation to requisition. The U.S. Defense Department’s Law of War Manual provides for compensation for takings of private real property, and refers to this as “appropriation” not “confiscation.”

Read more at Just Security

More about: International Law, Israel & Zionism, Knesset, Settlements

What a Strategic Victory in Gaza Can and Can’t Achieve

On Tuesday, the Israeli defense minister Yoav Gallant met in Washington with Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin. Gallant says that he told the former that only “a decisive victory will bring this war to an end.” Shay Shabtai tries to outline what exactly this would entail, arguing that the IDF can and must attain a “strategic” victory, as opposed to merely a tactical or operational one. Yet even after a such a victory Israelis can’t expect to start beating their rifles into plowshares:

Strategic victory is the removal of the enemy’s ability to pose a military threat in the operational arena for many years to come. . . . This means the Israeli military will continue to fight guerrilla and terrorist operatives in the Strip alongside extensive activity by a local civilian government with an effective police force and international and regional economic and civil backing. This should lead in the coming years to the stabilization of the Gaza Strip without Hamas control over it.

In such a scenario, it will be possible to ensure relative quiet for a decade or more. However, it will not be possible to ensure quiet beyond that, since the absence of a fundamental change in the situation on the ground is likely to lead to a long-term erosion of security quiet and the re-creation of challenges to Israel. This is what happened in the West Bank after a decade of relative quiet, and in relatively stable Iraq after the withdrawal of the United States at the end of 2011.

Read more at BESA Center

More about: Gaza War 2023, Hamas, IDF