Israel's Attorney General Authorized Legalizing Settler Buildings on Private Palestinian Land

Aiming for an alternative to the 'land grab' law he deems unconstitutional, Mendelblit approved the use of a rare 1967 order

The Jewish settlement of Halamish, west of Ramallah, in the West Bank, June 27, 2017 (illustrative).
ABBAS MOMANI/AFP

Attorney General Avichai Mendelblit approved the use of a special 1967 order to legalize settlement buildings built on private Palestinian land in certain cases, according to the minutes of a meeting held in his office late last year and obtained by Haaretz.

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The meeting was held at the time of the stormy public debate over the so-called land expropriation law, which Mendelblit deemed unconstitutional.

The meeting was also attended by four deputy attorney generals, the state prosecutor, the head of the High Court of Justice petitions department and the legal adviser on the West Bank settlements.

It concerned discussion of possible alternatives that would legalize buildings constructed on what was then thought to be state land in the West Bank but which, after examination over the years by the Civil Administration, turned out to have been cultivated, not abandoned, and therefore could not be declared state land.

Attorney General Avichai Mendelblit, January 16, 2017.
Ilan Assayag

It is believed there are hundreds, perhaps thousands, of homes like this in West Bank settlements on private Palestinian land.

Mendelblit decided that in such cases, a special order issued in July 1967 – called “Order Concerning Government Property” – could be invoked to expropriate the land.

According to Clause 5 of that order, “Any transaction concluded in good faith between the authorities and another person with regard to an asset the authorized person considered at the time to be government property will not be struck down and is valid, even if it is proven that the asset was not government property at the time of its purchase.”

A document issued by Mendelblit’s office stated that although the clause had rarely been used in nearly five decades, “The need to make use of it has arisen now, primarily in light of the work of the team delimiting the boundaries of state land.”

The document stated that invoking the clause now was meant to “protect those who contracted in good faith with the authorities for the purchase of abandoned government land, based on the understandings of both sides that this was government property.”

Mendelblit issued a number of instructions on how Clause 5 was to be implemented.

For example: “The use of Clause 5 should be limited as a rule to the built residential boundaries of the community, and to actual construction done before the parties to the transaction became aware that this was in fact not government property.”

The attorney general also set several conditions for invoking Clause 5, such as purchase in good faith, the existence of a contract and payment having been made for the land.

As mentioned, the meeting was held in the context of discussions over legislation of a bill concerning land expropriation in the West Bank – which Mendelblit had opposed.

Despite his warnings, the government passed the law in February. It is now the subject of various High Court petitions.

As long as the land grab law is in effect, Mendelblit’s opinion on the use of Clause 5 is not in force.

But since Mendelblit believes the law legalizing construction on what was once mistakenly believed to be state land – as well as construction on actual private Palestinian land – is unconstitutional, the High Court justices will probably strike it down. In that case, his proposed use of Clause 5 would take effect.

The document in question was obtained through the Freedom of Information Law by left-wing activist Dror Etkes (through attorney Eitay Mack), of the Kerem Navot organization that monitors Israeli land policy in the West Bank.

“Reading the document, it appears this is a parallel path being prepared for the justice minister for the day after the High Court tosses the [expropriation] law into the garbage,” said Etkes.

“The purpose of this legal construction, rotten from the foundation, is to raise the claim of ‘good faith’ wherever Israel has stolen private Palestinian land and given it to settlers,” he added. “This is a situation in which lies, denial, violence and manipulation prevail – that is, everything except good faith.”