Israel's Attorney General Paves Way for Legalization of at Least 13 West Bank Outposts

Mendelblit's precedent-setting opinion states that land owned by individual Palestinians can be expropriated to create an access road to an outpost even if the road is to be used only by Jewish settlers

Yotam Berger
Yotam Berger
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The West Bank outpost of Tapuah.
The West Bank outpost of Tapuah.
Yotam Berger
Yotam Berger

Attorney General Avichai Mendelblit’s legal opinion on the expropriation of private Palestinian land may have discussed the outpost of Harsha, but the Civil Administration’s maps in the West Bank show that even the narrowest interpretation of Mendelblit’s opinion could lead to the legalization of at least 13 West Bank outposts.

On Wednesday, Mendelblit only addressed the road leading to Harsha. The homes at the outpost are on state-owned land, but they were built without permission.

At the core of Mendelblit’s opinion issued Wednesday is the finding that land owned by individual Palestinians can be expropriated to create an access road to an outpost even if the road is to be used only by Jewish settlers. It’s a precedent-setting decision at variance with how Israel has treated private Palestinian land in the West Bank.

When Mendelblit considered the issue of the Harsha road in February, he said private Palestinian land could not be expropriated for a road that would not serve Palestinians as well. He changed his position, however, following a ruling by Supreme Court Justice Salim Joubran on abandoned land in the outpost of Amona.

Joubran wrote that settlers had to be considered part of the West Bank’s civilian population; their needs also needed to be looked after, even if private Palestinian land were expropriated.

The outposts potentially affected by the Israeli government's new legal opinion

In his legal opinion, Mendelblit did caution that the wider implications – such as planning regulations – beyond the matter he addressed had to be considered before one could decide that private land could be expropriated at Harsha. But in practice he gave the go-ahead to legalize a number of other unauthorized West Bank outposts.

About half of them are on state land, but a considerable stretch of the access road was built on privately owned Palestinian land. If that land can now be expropriated, it could also lead to the legalization of the buildings – at least – in the outposts that sit on state land.

The government seeks to legalize them, but the land there is an enclave of state-owned land in a sea of private Palestinian land, without an access road entirely on state land. Now that the attorney general has found that private Palestinian land can be expropriated for an access road, he has opened the door to legalization of the outpost itself.

Figures from Israel’s Civil Administration in the West Bank show that there are at least 13 such outposts in a similar situation as Harsha. Such is the case, for example, at Mitzpeh Danny near Ma’aleh Michmash in the northern West Bank. The outpost consists of several dozen buildings all of which are subject to demolition orders.

The maps were obtained through a Freedom of Information Act request by Kerem Navot, an Israeli group that opposes the expropriation of Palestinian land.

The outpost of Magen Dan, next to the West Bank settlement of Elkana northeast of Tel Aviv, is in a similar situation. With the exception of five buildings, all the outpost’s structures are on state land but the access road is on privately owned Palestinian fields.

The outpost of Hagit, east of Jerusalem in the area of Mishor Adumim, sits in three enclaves of state land while the roads connecting them and a small portion of the buildings are on land that has not been declared state land. Mendelblit’s ruling could lead – at the least – to the roads being legalized retroactively.

The Ma'aleh Shlomo outpost, which settlers consider a neighborhood of the Kochav Hashachar settlement, is in a similar situation. The outpost sits on state lands, but the access road is paved on land not officially recognized as state land, but according to Menelblit's ruling, it can now be expropriated.

The "Itamar outposts" too, are located on hills adjacent to a settlement in the northern West Bank, primarily on state land. However, the access road that connects the outposts passes through lands that are not technically state land. The nearby outposts of Ahiya and Esh Kodesh, as well as Avigayil, Bat Ayin Bet, Givat Harel, and Western Tapuah—parts of which have already been considered. The Sde Bar and Sneh Yaakov outposts are in similar situations.

Similar situations exist at a number of other outposts, even according to a narrow interpretation of Mendelblit’s opinion, whose implications might extend to other sites. Lawyers who deal with these issues are concerned about these implications, as reported in Haaretz on Wednesday.

Dror Etkes of Kerem Navot said that if expropriation of land for roads is legalized, the state will claim that illegal buildings on Palestinian land can also be legalized. "It's important to remember that the what's being revealed is only part of the picture, as the situation in a number of official settlements is the same," said Etkes. "These cumbersome efforts by Mendelblit to legitimize the extensive expropriation reveals, just like the land-grab law does, the magnitude of Israel's 50-year-long practice of stealing land. Official Israel has stopped being embarrassed by this and is gradually adopting it as official policy.”

The opinion published by Mendelblit's office stated that, "the full implications of legal decisions will be considered by the attorney general in the near future, in cooperation with the relevant actors."

On Thursday, the attorney general is to present his position regarding the land-grab law, which would allow Israel to expropriate private Palestinian land in the West Bank where Israeli settlements or outposts have been built, allowing settlers to remain in their homes without owning the land. Until now, the attorney general has been against the law in question, and even refused to represent the state in the proceedings. The assumption was that his legal opinion presented to courts would criticize the law; as such, this legal opinion represents a softening of sorts in his Mendelblit's stance regarding expropriation of Palestinian land.

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