Knesset’s “Legalization” Bill vs. International Law: Mosaic Magazine

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 Manualprovides for compensation for takings of private real property, and refers to this as “appropriation” not “confiscation.”