Top Court Green Lights Israel Land Claim in Ruling That Could Pave Way for Legalizing West Bank Outposts

The ruling clears path for legalization of unauthorized settlement outposts of Netiv Avot and Sde Boaz, south of Jerusalem

Hagar Shezaf
Hagar Shezaf
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Jewish settlement of Kokhav Yaakov in the West Bank, 2016.
Jewish settlement of Kokhav Yaakov in the West Bank, 2016.Credit: Emil Salman
Hagar Shezaf
Hagar Shezaf

The High Court of Justice struck down Sunday an obstacle to declaring a tract of land in the West Bank as the property of the State of Israel.

Justices Yael Willner, Noam Sohlberg and Alex Stein rejected a petition filed by Palestinians who claimed they had acquired ownership of the 224 dunams (55 acres) in the settlement of Kokhav Ya'akov and the area of the Palestinian village of Kafr Aqab, near Ramallah, through their cultivation of the land.

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According to Ottoman law, which applies in the West Bank to this day, a person acquires ownership of land if he cultivated it regularly for a decade. The Palestinians claimed that since they submitted a claim of land ownership in a procedure that was frozen, they didn’t have to continue to cultivate it over the years in order for their right to it to be preserved.

The ruling could pave the way for the legalization of the unauthorized settlement outposts of Netiv Avot and Sde Boaz, south of Jerusalem, which are in a situation similar to that of Kokhav Ya'akov, as well as structures in more than 20 settlements. The state had been waiting for the court to rule in the case before declaring these areas state land.

The land on which Kokhav Ya'akov was built was declared state land in 2013. In 2016, an appeals committee of Israel’s Civil Administration overturned the move, deeming it illegal. It was ruling on two separate appeals; one was from a group of Palestinians, represented by attorney Shlomi Zacharia of Yesh Din (Volunteers for Human Rights, that help with claims of ownership of the land). The other was filed by Likud activist Moti Kugel, who claims to have bought the land from its Palestinian owners.

Sources told Haaretz at the time that this was a rare decision, particularly in light of the fact that dozens of structures had already been built on part of the area, including stone houses and trailer homes. In an unusual step, the head of the Civil Administration rejected the recommendation of the appeals committee and the declaration remained in place. As a result, a petition to the High Court was filed in 2017.

The Palestinian petitioners claim that during the period of Jordanian rule they cultivated the land, and in the context of Jordanian land regularization they filed a lawsuit that was published in the schedule of claims for recognition of their rights to the land.

A 200-dunam tract of land between the settlement of Kochav Yaakov and the Palestinian village of Kafr Aqab, 2016.Credit: Emil Salman

The “schedule of claims” is a stage in the process of Jordanian land regularization, which was frozen by Israel in 1968.

The parties argued over the significance of the stage in which the real estate procedure of this land was frozen. While the state maintained that the schedule of claims is only an administrative matter, the petitioners claimed that this is the stage when there had already been an investigation regarding the truth of the claims.

The court accepted the state’s position and ruled that only in the event that the land has reached the stage of “nonfinal schedule of rights” is there no need to prove that its cultivation continued.

The government, for its part, claimed that the fact that the Palestinians had submitted a request to claim ownership does not grant them a right to the land, and in order to keep it they should have continued to cultivate it. They also claimed that aerial photographs from 1969-80 proved the land wasn’t cultivated during those years.

In the ruling Stein asserted that if a person has stopped cultivating land for three years, after 10 years when he cultivated it and therefore received a right to it, his right expires, even if he began the process of regularization – as long as it has not reached the stage of the final schedule of rights.

“The ruling offers a wide opening for a huge takeover of Palestinian land, and in effect this is a cancellation of Jordanian regularization procedures, just at a time when Israel is interested in renewing regularization procedures. The ruling contradicts itself on numerous points, and fails to address the huge complexity of the issue, certainly in light of the fact that the area is occupied territory," Zacharia, representing the Palestinian petitioners, said. 

Trailers near Sde Boaz, West Bank, July 2017Credit: Emil Salman

"The undermining of Palestinian rights, with an emphasis on absentees, but not exclusively, is major, and it is evident that the court is aware of that but chooses nevertheless to approve a practice that already four decades ago was ruled illegal,” Zacharia added. 

Attorney Harel Arnon, who represented the Binyamin Regional Council, which joined the petition as a respondent, said that what was up for discussion is the question of whether every hearing concerning the present status of land will continue from the point when land regularization was frozen in 1967, while ignoring what has happened since.

“The question is whether to take into account the fact that someone filed a claim of ownership and in effect to freeze the situation even if he has stopped cultivating it,” he said.

Arnon claims that in effect Israel has declared land like that discussed in the petition state land, and therefore the ruling is in effect a ratification of the practice that is followed in any case.

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