Israel Says a West Bank Outpost Can Be Legalized if Land Was Seized in Good Faith

In precedent-setting legal interpretation: Mitzpeh Kramim outpost built on privately-owned Palestinian land can be legalized under certain conditions, government tells court

The Mitzpe Kramim outpost in the West Bank.
Michal Fattal

It is possible to legalize the unauthorized outpost of Mitzpeh Kramim, which was built on privately-owned Palestinian land in the West Bank, if it can be proved that the settlers were given the land in good faith, the state told the Jerusalem District Court Tuesday.

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The State Prosecutor’s Office based its position in the case on a precedent-setting interpretation of a legal opinion by Attorney General Avichai Mendelblit. The legal basis for this is the market overt or Marché ouvert concept of property ownership, in which transactions conducted in good faith under certain conditions are considered valid — even if they have certain legal faults, such as in the case of the sale of stolen goods.

Mitzpe Kramim outpost

Such a rule could lead to the legalization of thousands of unauthorized housing units in both large and small settlements all over the West Bank if, for example, the land was mistakenly thought to be state-owned land. Until now, the state had claimed the opposite, that it was impossible to use this legal tactic to authorize such construction — but Mendelblit’s opinion has changed this view.

Nonetheless, the State Prosecutor’s Office admits this position still has legal “difficulties.” In order to use this process it will be necessary to include the Palestinian owners of the land in the legal process and also to prove the transactions were actually made in good faith by all the parties involved.

A few dozen families live in the outpost of Mitzpeh Kramim, located next to the settlement of Kokhav Hashahar in the West Bank, northeast of Jerusalem. It was built on six plots of land: Five are privately owned and one is state land. The government allocated the land in the 1980s to the World Zionist Organization. According to Israel’s Civil Administration in the West Bank, the government did not know at the time that the land was privately owned because of confusion in the mapping of the area.

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What complicates land ownership matters in the West Bank is that Israeli law does not apply to property ownership there. Instead, the property laws are broadly based on Ottoman Turkish law, even though both the British and Jordanians ruled the territory before Israel took possession in 1967.

Generally, under Ottoman land laws, land is acquired by farming and working it. Therefore, when the Civil Administration examines old aerial photographs and finds land that was once farmed, even if it is now inside a settlement, that land is retroactively categorized as privately-owned Palestinian land — even if it is not known to whom it belongs, if anyone. At the same time, unworked land may be declared to be state-owned — if the land registry has no other registration or status for it.

In 1999, 10 buildings were constructed in what is now Mitzpeh Kramim with permits and help from the government. Since then, more structures have gone up — but without permits. In 2011, Palestinians petitioned the High Court of Justice asking to revoke the master plan for Mitzpeh Kramim and prevent any further building. This case has been frozen for now, partly because of the proceedings underway concerning the new law on expropriation of privately-owned land in the West bank in return for above market compensation, known as the “Regularization Law.”

The law was passed by the Knesset in February 2017 to retroactively legalize thousands of structures built on private Palestinian land across the West Bank, in settlements and in outposts. Implementation was frozen as part of an agreement between the government and the petitioners until the High Court rules on the law’s constitutionality.

In 2013, the residents of Mitzpeh Kramim filed suit in the Jerusalem District Court asking to recognize their rights to the land – and this is the case in which the state presented its new legal position Tuesday.

In November 2017, Mendelblit issued the legal opinion in which he said it was possible under certain circumstances to expropriate privately-owned Palestinian land for settlement purposes in return for compensation. Mendelblit is also examining other methods to legalize outposts in the West Bank without using the new law, which the High Court is expected to rule unconstitutional.