On Tuesday, 3 July 2018, the State submitted its summaries to the Jerusalem District Court in a lawsuit filed by the settlers of the outpost of Mitzpe Kramim. The state informed the court that it agreed that the land, which is privately owned by Palestinians, would be transferred to the settlers who invaded it, to the extent that a number of technical matters were fulfilled. The State’s argument is based on an interpretation of Section 5 of the Order Concerning Government Property, known as the “Market Regulations”, according to which in certain cases, if a person invades the land in good faith, the landowner receives compensation and the squatter receives the land.
Changing the rules of the game: Permission to expropriate land for the benefit of the settlements
This is the second case in which the state seeks to refrain from returning private land to its owners by applying the “market regulation” doctrine. In November 2017, the state notified the High Court of Justice of its intention to expropriate 45 dunams of Silwad land in favor of the Ofra settlement on the basis of “good faith” that it claimed to have taken over the land. In actuality, this is a permit to expropriate Palestinian land for the benefit of settlements, which is forbidden by international law and is still considered by the Israeli legal system to be a red line that cannot be crossed. Attorney General Avichai Mandelblit is the first legal advisor to allow this, and this is an attempt to implement the Expropriation Law (the “Regulation Law”) that the Knesset passed in 2017 and which is currently being examined by the High Court of Justice following a petition by several organization including Peace Now.
Peace Now: “The state’s announcement to the District Court is a new low in the moral and political deterioration led by the Netanyahu government. As the body 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. The fact that the state failed to protect their land cannot be an excuse to steal the land and grant it to the settlers.”
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 Divisioyn 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. 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 plan.
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.
It should be noted that the State emphasizes that in order to realize the expropriation by way of market regulation, all the landowners must be invited to take part in the court case. However the settlers refrained from including all of the landowners in their lawsuit and the discussion took place without their voice being heard. Thus, even if the court accepts the state’s position, there will still be a need for another proceeding in which all of the landowners will also participate.
This effectively ended the hearing of the settlers’ suit in the District Court. Now this is on the judge’s table, who is supposed to give a verdict. After the ruling, each party will be able to appeal to the Supreme Court, and only then, after the final ruling on ownership, the Palestinian petition demanding the eviction of the outpost will return to the High Court of Justice.
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, 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 hearing 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.
Click here to read Mendelblit’s summary of the discussion expressing the guiding legal opinion on the market regulation [Hebrew].
Click hereto read the state’s response to the plan in Ofra – to implement the expropriation according to the market regulation [Hebrew].
Click here to read the state’s summaries in the settlers’ case on Mitzpe Kramim.