The State to the Court: It is permissible to expropriate Palestinian land in favor of the Mitzpeh Kramim outpost. Peace Now to the Court: Such a decision would allow expropriation of thousands of dunams of Palestinian land.
On 10 March, the State submitted its summations before the hearing on the appeal against the decision of the District Court in favor of the claims by settlers in the Mitzpe Kramim outpost. At the same time, Peace Now submitted to the court an application to join as a friend of the court (amicus curiae) to discuss the broad implications of the ruling and the “good faith” argument of the Custodian of Government Property in the Territories and of the Settlement Division.
In August 2018, the Jerusalem District Court (Justice Arnon Darel) ruled that settlers who built houses on private Palestinian land in the Mitzpe Kramim outpost have “inalienable” rights in the land, and that Palestinian landowners have no right to demand their eviction, but rather compensation.
For further information on the ruling of the District Court, see here.
The precedent-setting ruling accepts, in effect, the argument that the “market regulation” doctrine can be applied to cases in which settlements were built on private Palestinian land and that “good faith” can be attributed to those responsible for taking over the land.
This claim was first raised by the state in its summations submitted to the District Court in July 2018. Contrary to the State’s firm position at the beginning of the proceedings — that the settlers unlawfully invaded the Palestinian lands and that they must evacuate them — the state presented the opposite position in the summations. The change in the state’s position took place in the wake of far-reaching legal changes led by Justice Minister Ayelet Shaked and Attorney General Avichai Mandelblit, which limit the protection of Palestinian rights and retroactively legalize illegal activity in the settlements.
In the summaries submitted by the state yesterday to the court prior to the hearing on the appeal set for 19 March 2019, the state reiterated Mandelblit’s position that the market regulation doctrine should be applied and that the Custodian of Government Property and the Settlement Division be treated as if they allocated the land to the settlers and that they did so good faith. To read the state’s summaries prior to the hearing on the appeal against Mitzpe Kramim, see here (Hebrew).
Peace Now request to join as a friend of the court
On 10 March, Peace Now filed an application to join as a friend of the court in the appeal hearing. To the request, Peace Now added a professional opinion detailing the ramifications of the ruling and the authorities’ involvement in the land theft that undermines the claim of “good faith:”
A. The broad implications of the ruling – Peace Now has submitted to the court a list of 132 settlements and outposts where nearly 7,000 housing units have been built on private Palestinian land, stretching over 10,000 dunams. This is in addition to thousands of dunams or even tens of thousands of dunams taken from their owners by settlements for infrastructure, agriculture, and so on. The ruling is likely to serve as a precedent for the massive land grabs that the state has carried out over the years in the settlements.
B. Land Management by the Custodian of Government and Abandoned Property in Judea and Samaria – A description of a series of failures in the General Director’s actions led to the many “errors” in the allocation of land that is not owned by the state. Some of the failures were presented in official government reports and by the state comptroller, which attest to historic failures and oversights that have not been corrected to this day.
C. Land management by the Settlement Division, not done in “good faith” – Extensive information on the activities of the Settlement Division on land allocated to it (and land not allocated to it) and in many cases of allocations granted without authorization.
D. The nature of the “market” for which the “market regulation” is applied – In fact, there is no “market” or “normal trading life” in transactions of the kind that the state manages in the territories. There is no ongoing trade, certainly not in “state lands” allocated by the state to settlers and transactions between the state and the World Zionist Organization (the umbrella organization that includes the Settlement Division). Moreover, there is no possibility – even theoretically – of the opposite situation: seizing privately owned land for Jews and transferring it “by mistake” to Palestinians. Nor is there a governmental body in the area that expropriates private land from Jews. Only one side is consistently discriminated against, as evidenced in the data according to which 99.76% of the allocated state land in the West Bank was given to the Israeli population, and while less than a quarter of a percent was allocated to Palestinians since 1967.
The meaning of Peace Now’s application to join as a friend of the court – A friend of the court (amicus curiae) is a status that is sometimes given in certain cases to bodies or persons who are experts in a field relevant to the decision. If the court accepts the request to join as a friend, the party is given the opportunity to present the judges with relevant information regarding their decision on the legal proceedings.
Peace Now sought to join the court discussion because of the case’s potential as a precedent and because of the extensive information accumulated over the years from its Settlement Watch project, which monitors and documents the context in which the lands in the West Bank have been transferred to Israeli civilian use.