As you all know, we usually blog about eminent domain cases in New York. Sometimes we even take a virtual trip to another State to hear what’s going on “in their eminent domain neck of the woods”. But we have to say that this is the first time that we’ve taken a look over international waters. So here goes.
This past week, in mid-June of 2020, the Israeli Supreme Court of Israel issued a major ruling barring expropriation of privately-owned Palestinian land on the West Bank for transfer to Jewish settlers. The Israeli law from 2017 allowed for the retroactive legalization of thousands of Jewish homes built on occupied West Bank land privately owned by Palestinian.
The law is considered so provocative that few in Israel (and probably other places), believed that it would survive judicial review when it was passed. The law paved the way for the appropriation of Palestinian-owned land in the West Bank on which nearly 4,000 homes had been built, both in authorized settlements and in illegal Jewish outposts. Sounds like the eminent domain process we all know and love.
The news of Israeli settlements is hardly new (and is already controversial as to its legality under international law), since the settlements were built in occupied territory. Pursuant to the recent ruling of the Israeli Supreme Court, the homes built in those settlements will still remain illegal under Israeli law. Accordingly, Palestinian landowners will be able to proceed with lawsuits seeking to evict the people living in them and to recover their property.
Are there similarities to US eminent domain laws? We can argue that, yes, there are. But there are differences to be noted. In the USA, the government must show that the taking of the property in question has a public use. Allowable public uses range from the construction of highways and schools to the elimination of urban blight, in order to promote economic development.
In the Israeli case, the Court concluded that the Israeli appropriations were much more clearly intended to simply benefit one social "group" (Jewish settlers) by taking land from another (Palestinian Arab property owners).
Did the Israeli Supreme Court need to be guided by US rulings with its own decisions? It’s an interesting point. Actually, this is not unusual. The Israeli Supreme Court (and high courts in Canada and many European countries) often cite and rely on US and other foreign constitutional law decisions as the Israeli court did in this case.
It will be extremely interesting to see how this case proceeds. After all, this strengthens the case of private property law with Palestinians which can be seen as somewhat unusual. Many argue that property protection is important for enhancing individual liberty, protecting the rights of vulnerable minority groups, and promoting economic development. Interestingly, Jews have a long history of being victimized by unjust property appropriations at the hands of both European and Arab Muslim governments.
With the topic of settlements in Israel being in the news year after year, it will certainly be interesting to see how it all develops, and how closely the Israeli Court relies on eminent domain rulings in the USA.