By Eugene Kontorovich
Tuesday, December 20, 2016 at 8:04 AM
Editor’s Note: After reading Eugene Kontorovich’s post, be sure to read a response to his post by Yaël Ronen and Yuval Shany, “Israel’s Settlement Regulation Bill Violates International Law,” which is being published simultaneously at Just Security.]
Israel’s proposed “Regulations Bill” has attracted broad international criticism, including from the U.S. State Department and the European Union, as well as from opposition Israeli politicians and some government lawyers. The bill seeks to solve a situation in which, over several decades, over one thousand Israeli homes in West Bank settlements have been built in open areas to which Palestinians subsequently asserted property claims, typically based on broad give-aways of state land by the King of Jordan during the Hashemite occupation (1949-67). The homes are in communities built with some level of government involvement. Thus the bill provides the government would compensate the landowners 125% of the value of the land, in order to allow the communities that have been built 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. In cases like the community of Amona, which inspired but are not covered by the law, the Court made its determination without any fact-finding, and the lands claimed by the Palestinian petitioners only slightly overlap with those on which the Israeli homes stand.
Thus the law regulates situations where property claims, often difficult to verify, are being belatedly brought against areas that have seen significant improvement and home-building. Moreover, in the background are two legal doctrines that make the property impasse particularly costly. On one hand, the Israeli Supreme Court exercises broad remedial powers. Instead of merely awarding title to Palestinian claimants, it affirmatively requires the government to destroy all structures whose plots may overlap even in part with the claimed lands. On the other hand, bargaining in the shadow of obscure Jordanian land allotments is made close to impossible by a Palestinian Authority law criminalizing the sale of land to Jews. While Palestinian President Mahmoud Abbas has recently issued an executive order reducing the traditional death penalty to life at hard labor, there are reports that the old punishment may still be enforced de facto.
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 Art. 46 of the Hague Convention, which states that “private property cannot be confiscated.” Critics of the Israeli bill have broadly declared that Art. 46 of The Hague Conventions absolutely prohibits any action involving private real property absent military necessity. This is not the established law, 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 are 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.”
For example, Prof. Yutaka Arai’s recent treatise on the law of occupation specifically distinguishes the question of “expropriation” with compensation from Art. 46’s ban on “confiscation.” Arai writes that “many experts argue that expropriation … is not forbidden.” He goes on to cite the leading post-war authority George Schwarzenberger as maintaining that ordinary eminent domain for development purposes is not governed at all by the law of occupation. That is, the articles of The Hague Regulations simply do not address this issue.
Some specific examples of permissible purposes for which such eminent domain by occupying powers might be used include “land reform” addressing feudally based land-ownership. Certainly the current property situation in Samaria, created by broad grants to clans by an occupying Jordanian monarch, would qualify. To be sure, there are also authorities that say expropriation is forbidden, but currently there is no resolution of this dispute in theory or practice. That means there is no prohibition, as the basic rule of international law is that action is permitted unless a clear prohibitory norm has emerged.
It is probably unnecessary to discuss the Rome Statute of the International Criminal Court, as Israel is not a member (though the Office of the Prosecutor has controversially purported to accept jurisdiction over “the State of Palestine”). But for thoroughness, it is worth noting the Rome Statute criminalizes the “seizing” of property absent military necessity (Art. 8(2)(b)(xiii)). To be sure, such acts are only criminal for ICC purposes when committed “in the context of … and associated with international armed conflict,” an element that appears missing in the Israeli-Palestinian situation. In any case, commentaries treat “seizure” as referring to uncompensated takings, analogizing it very closely to crime of “pillage,” which of course requires much more than a switch from property to liability rule protection.
Not surprisingly, those who argue international law forbids such action fail to cite any state practice outside of Israel for this proposition. To be sure, the payment of compensation by belligerent occupiers is probably quite rare, as typically long-term occupiers seem to simply take what they want without bothering about compensation. The entire question of eminent domain – which involves a transfer of title – will only arise in prolonged occupations. In the typical short-term occupation envisioned by the Hague and Geneva treaties, the occupier has no need or interest to change the title to land, which is always about long-term policies.
Yet in several prominent cases, long-term occupiers have used compensated takings, and the international community appears to have acquiesced, and certainly did not declare it illegal. Examples include the Turkish occupation of Northern Cyprus, where a compensation scheme aimed at permitting Turkish settlers to remain in Greek properties was approved in 2005 by the European Court of Human Rights. Similarly, the Russian occupation of Crimea takes private property with compensation (often in the form of other land), even for highly controversial projects like the Kerch Bridge, which will serve to deeply entrench the occupation and facilitate the transfer of settlers. Yet while many aspects of Russia’s occupation of Crimea have been denounced as illegal by the international community, the use of eminent domain has not. In particular, the ICC Prosecutor’s report on possible Russian crimes in Crimea makes no mention of it. The fact that many aspects of Russia’s Crimean occupation have been explicitly criticized on international law grounds, but this one ignored, suggests that it is not seen as illegal.
Indeed, property owners who have been compensated have no injury to complain of. As the French Government wrote in its submission to the International Court of Justice in the Wall Case, “international law… requires compensation which effectively makes good the entire injury suffered by the owners of the property in question. Indeed, claims of violations of international law are often accompanied by demands for compensation. This may be the first case where it is the payment of above-market compensation is claimed as an international law violation.
In short, prior to the introduction of the Israeli “Regulations” bill, neither the consensus of commentators nor any state practice supported the view that the prohibition on confiscation or seizure of private property in occupied territories applies to land-use regulations accompanied by the payment of complete compensation.