The Jerusalem District Court (Judge Arnon Darel) ruled today, August 28, 2018, that the settlers of the Mitzpe Karmim outpost, east of Ramallah, have rights to the private land of the Palestinians on which the outpost was built. This means that according to the ruling (which is expected to be appealed to the Supreme Court), the Palestinian landowners have no right to demand the eviction of the settlers from their land, but rather to demand compensation.
Peace Now: “In the beginning, the state’s position was that the settlers had no right to the land, and that they should be evacuated. After the establishment of the current government and the appointment of Mendelblit as Attorney General, the state’s position changed completely and presented the court with the opposite view. The court today chose to “align” with the project of annexation and dispossession of the Israeli government led by the Netanyahu and the Jewish Home.
It is absurd to attribute “good faith” to the settlers of an illegal outpost whose homes were built illegally and without permits on private Palestinians land, because of a “mistake” made by the authorities in allocating the land. The Israeli Authorities should protect the properties of the people under their control, and failing to do so cannot be used as an excuse to take the land from the Palestinian owners. Let us hope that the Supreme Court will erase this shame.”
Background: “Mitzpe Karmim” Outpost
The Mitzpe Karmim outpost was established in 1999 on lands of the village of Deir Jarir, east of Ramallah, without government approval, without a building plan and without permits. The land on which the outpost was built is privately-owned land, registered in the Land Registry in the name of the Palestinian owners, and near the settlement of Kochav HaShachar, which was established in the 1970s.
2011 – Petition of the landowners for the evacuation of the outpost – In 2011, some of the landowners petitioned the High Court of Justice by means of attorney Husam Yunas, demanding the evacuation of the outpost and the return of their land (HCJ 953/11). In response, the settlers claimed that they had invaded the land with the assistance of the authorities, based on the government’s promise that the place would be retroactively authorized, and that they had even received an “authorization certificate” granting them land rights from the Settlement Division of the World Zionist Organization. They claimed that they settled on the land in good faith, and therefore Section 5 of the Order Concerning Government Property (the “Market Regulations”) must be applied and the land should be given to them. The state, on the other hand, claimed that this was private land and an invasion without permits that could not be authorized in arrears. According to the state, inasmuch as there were government promises and valid contracts for the settlers, this was done in error, with the mistaken assumption that the land of the outpost was included in a military seizure order of the 1970s.
2013 – The settlers’ claim in the District Court to register the land in their names – In an attempt to delay the proceedings in the High Court of Justice, the settlers filed a claim in the Jerusalem District Court in which they demanded that the land be registered in their name. In the State’s defense statement submitted in early 2014 regarding the settlers’ claim, it in turn claimed that the land should remain Palestinian-owned, and that the settlers’ invasion, without building permits and without official approval, could not be considered an act in “good faith”.
July 2018 – State summaries: The land can be expropriated – the settlers’ claim was dragged out for years, during which time various witnesses testified about the circumstances of the outpost’s establishment and the state of affairs in terms of land rights. Among other things, one of the individuals who testified had been in charge of government property in the 1980s and signed the land allocation contract with the Settlement Division in 1981. He claimed that the contract signed with the Settlement Division did include the land on which the outpost was built and that he truly believed that it was part of the military’s seizure order.
In the state’s summaries, contrary to its position in the High Court of Justice and at the beginning of the proceeding, contended that, in view of the testimonies in the trial, it could indeed be argued that there had been “good faith” in the authorities’ handling of the outpost.
This is a 180-degree change from the state’s position at the beginning of the process, and is part of a change, which has been evident since Avihai Mandelblit was appointed Attorney General two years ago, regarding the legal interpretation of what is permitted in the Occupied Territories and in the settlements.
The meaning of the judgment – actual implementation of the principles of the “Regulation Law”
This is the first ruling that applies the “market regulation” doctrine to settlers who built their homes on private Palestinian land. According to Section 5 of the Order Concerning Government Property, known as the “Market Regulations”, in certain cases, if a person invades the land in good faith, the landowner receives compensation and the squatter takes possession of the land (see below for an extension of the “market regulation”).
In addition, Judge Darel is willing to attribute good faith even to the case where the construction was done illegally, without valid permits and plans.
The ruling does not give carte blanche to legalize all the thousands of settlement structures built on private Palestinian land. It is a special case in which the settlers received documents from the authorities that grant them rights in the land, and in which the state claims that this mistake was done in good faith.
It is important to mention that the judgment is still expected to be decided by the Supreme Court in the framework of an appeal to be submitted.
A mistake in the allocation of land – Judge Darel asserts that the mistake made in the allocation of land can be ascribed to good faith, and that the allocation contract granted by the Civil Administration to the Settlement Division in 1981 also included the area of the outpost (although this was private Palestinian land that was not seized for military purposes). As such, the Settlement Division was able in good faith to allocate the land to settlers who had built their home in good faith (illegally). During the trail in almost all the testimonies of the military and civil administration personnel who dealt with the subject in the relevant years, the gloomy picture emerged of how Israel manages the lands in the territories, and the disregard for the Palestinians’ private ownership (the transfer of rights by inaccurate maps, unclear seizure orders and closure orders Etc.) One of the many examples of how Palestinians’ assets were managed is given in the testimony of Shlomo Moskowitz, who was the head of the Planning Bureau of the Civil Administration for decades:
“It was customary at the time until the mid-1980s or so, all the orders I know … were carried out in such a way that there was no connection between the order and the actual location.
Q: Ok, that means that in 1981 or 82, when the commissioner assigned the WZO territory, he had no idea what space he was allocating, right?
A. He knew about the area, but not the exact location and not the exact boundaries. “
The result is absurd: As the occupying power that has assumed responsibility for the Occupied Territories for the last 51 years, the state should have protected the property rights of Palestinians who have no civil rights nor the ability to defend their own land. In effect, the ruling means that because the state has failed to protect their land, it is now possible to take the land from the Palestinians and give it to the settlers.
Use of the “market regulation” doctrine to expropriate Palestinian land – actual implementation of the principles of the “Regulation Law”
The doctrine of “market regulation” is a legal arrangement that, in certain cases, allows the person who purchased property without the owner’s consent due to an honest error (e.g., a property sold by a thief so that the buyer had no reason to suspect that the seller is not the owner) to prevent the return of the property to its owner and to pay him monetary compensation. The idea is to prevent a situation in which the chain of transfers of an asset could collapse at any moment, if it so happens that someone disagreed with the transfer along the way, possibly causing great harm to the market activity and trade in property.
In mid-November 2017, the state notified the High Court of Justice of its intention to expropriate 45 dunams of land from Palestinians in the Ofra area in order to approve a building plan that would legalize parts of the settlement. The legal justification given in the state’s response to the High Court of Justice is the use of the “market regulation” doctrine set out in section 5 of the Order Concerning Government Property. It states that in certain cases, when a transaction is made between the Custodian of Government and Abandoned Property in the Civil Administration and any other party that sides thought in good faith it was “state land”, the transaction will not be disqualified and will remain valid (i.e. the land is expropriated with the obligation to compensate the owner). In other words, there is no obligation to evacuate the invaders and return the land to its owners.
The state’s response is based on a summary of a discussion held by the Attorney General in December 2017, in which he actually approved the application of the section to certain cases in which the Civil Administration had, in good faith, appropriated land that it did not own and transferred it to the use of the settlers. In fact, the Attorney General order allows for the expropriation of Palestinian land for the benefit of the settlements, which is forbidden by international law and is considered by the Israeli legal system to be a red line that cannot be crossed. Although the Attorney General limits the expropriation to cases in which there was an allocation by the Civil Administration (CA), it also includes, for instance, cases of illegally built houses, i.e. without building permits and contrary to the master plans that are in force. The issue of the CA acting in good faith is questionable, as it is clear that the CA has been negligent in its task of finding out the status of the private lands it has allocated. Therefore, according to the position of the Attorney General, negligence and good faith can coexist.
It should be noted that the Regulation Law enacted by the Knesset does, in effect, stipulate that private land that settlers invaded will not be returned, but will be expropriated from the owners in return for compensation. In the Attorney General’s response to the High Court of Justice that was filed in objection to the law, he states that the law is unconstitutional and should be disqualified. In the present opinion on “market regulation” it turns out that the principle underlying the expropriation law is acceptable to him, the only question being under what conditions it is permissible to apply it.