Private Palestinian Land Can Be Taken for Public Use in Settlements, Israeli Attorney General Says

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The illegal Jewish outpost of Harsha in the West Bank, 2006.
The illegal Jewish outpost of Harsha in the West Bank, 2006.Credit: Nir Kafri

Privately owned Palestinian land may be expropriated for public purposes in West Bank Jewish settlements, Attorney General Avichai Mendelblit asserted in a legal opinion released Wednesday.

The opinion came in light of a court decision several weeks ago by Supreme Court Justice Salim Joubran, who ruled that land could be seized for the benefit of Israeli settlers because they, too, were part of West Bank’s “local population.” According to Mendelblit, privately owned Palestinian land can now be expropriated for public purposes in settlements, although such steps still must comply with standards of reasonableness and proportionality as well as other laws, including planning laws.

The attorney general’s legal opinion was issued at the request of Justice Minister Ayelet Shaked and is connected to a request to legalize an access path to the illegal Jewish outpost of Harsha, located near Ramallah in the West Bank. A portion of the path sits on privately owned Palestinian land, and the absence of legal access to Harsha is the main reason that the outpost had not yet been authorized.

In the wake of Joubran’s ruling, Shaked asked the attorney general to reconsider his position on the expropriation of land at the outpost. In the past, Mendelblit opposed the expropriation of private Palestinian land at Harsha. In Wednesday’s legal opinion, Mendelblit shifted his position to be in line with Joubran’s ruling.

In February, the attorney general had said that recommending to authorize the road would present legal difficulties because it would only in use by the West Bank’s Jewish population. On Wednesday, he wrote in his opinion that although the full implications of Joubran’s ruling would require further study, it would now be possible to legalize the access road leading to the outpost.

“The full significance of [Joubran’s] ruling will be examined by the attorney general in the near future in a [formal] legal opinion,” Mendelblit wrote. At the same time, he wrote, there are no longer legal grounds that prevent, in principle, the legalization of the access road for public purposes through expropriation.

That being said, Mendelblit cautioned, his legal opinion only meant that there was general legal authority to expropriate land for purposes such as an access road to Harsha. Any actual expropriation must still be considered based on the principles of proportionality and reasonableness, he wrote, and these issues that must still be examined. In addition, any decision to legalize such an access path is not exempt from planning requirements based on local law and “the rules of public law.”

Joubran’s ruling several weeks ago related to an effort to head off the evacuation of the West Bank Amona outpost at the beginning of the year. At the time, the court ruled against the plan, which involved abandoned Palestinian land, and the evacuation took place in February 2017. However, in the recent ruling, Joubran expanded on his broad decision to recognize the authority of the West Bank military commander “to act for the benefit of the civilian interests of the Israeli residents” of the West Bank.

“Israelis are included among the civilian population of the area and therefore the military commander’s duty also extends to them,” Joubran wrote, citing a prior ruling by former Justice Aharon Barak, who noted: “Israelis in the area have the right to life, dignity, property and all the rights enjoyed by anyone in Israel.”

In response to Mendelblit’s legal opinion released on Wednesday, Justice Minister Shaked, who is part of the right-wing Habayit Hayehudi party, said: “The attorney general has issued a legal opinion permitting the expropriation of privately owned Palestinian land to permit an access road to [Harsha] that permits the regulation [legalization] of the entire [settlement]. The justice minister welcomes the decision, which is another step in exercising the rights of the hundreds of thousands of [Israeli] residents of Judea and Samaria [the West Bank], and she will continue to advance a reexamination of prior legal positions relating to the regulation of construction in Judea and Samaria.”

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