Israel's Top Court Ruling May Enable Mass Legalization of Settlement Homes in West Bank

Jurists believe courts can interpret the ruling on the Mitzpeh Kramim outpost to enable legalizing hundreds of housing units in the settlements

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A boy walks near houses in the Israeli settlement of Mitzpe Kramim , near Ramallah in the occupied West Bank, on August 29, 2018
A boy walks near houses in the Israeli settlement of Mitzpe Kramim , near Ramallah in the occupied West Bank, on August 29, 2018Credit: AFP
Yotam Berger
Yotam Berger

The main question raised by the Jerusalem District Court’s verdict, that the Mitzpeh Kramim outpost in the West Bank can be legalized despite being built on private Palestinian land, pertains to its future implications.

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Although this is a singular case, jurists specializing in property law in Israel and the West Bank believe that courts can interpret the ruling to enable legalizing hundreds of housing units in the settlements.

Justice Minister Ayelet Shaked referred to this possibility when she said on Tuesday: “This is a precedent-setting, extremely significant verdict.”

“It means the state isn’t saying anymore that settlements must be evacuated, but that we’ll find a way to legitimize them, to enable the settlements’ development and growth. This is very big news,” she said.

The Mitzpeh Kramim settlement, 2012Credit: Michal Fattal

Since the High Court of Justice ruling on the Elon Moreh case in 1979, the state has refrained from building settlements on private Palestinian lands it had seized for security purposes.

Mitzpeh Kramim is an unusual case in that the outpost was built on private Palestinian land that had been apparently seized by military order, but was in fact situated outside the seized area, so the land it was built on was never under the state’s control.

The court ruled on Tuesday that the settlers’ right to the land must be recognized, although the land wasn’t in the state’s hands when it gave the rights to it to the World Zionist Organization’s settlement division, which in turn, gave it to the settlers.

The decision was in line with a recent amendment regarding government property in the West Bank according to which a deal between the official in charge of such property and another person may remain valid, even if it turns out the land had never belonged to the state - as long as the deal was carried out in good faith.

Mitzpeh Kramim is the only outpost built entirely on land the state thought it had seized by means of a military order, and which in retrospect turned out to be privately owned and never confiscated.

Throughout the West Bank there are similar examples, of many houses built on land thought mistakenly to be state lands but which later on transpired not to be.

The Mitzpeh Kramim settlement, 2012Credit: Michal Fattal

Under Ottoman and Jordanian law, which currently applies to the West Bank, land ownership was acquired by cultivating it.

Areas that look uncultivated in aerial photos are regarded as state land.

After the West Bank was occupied in 1967, Israel started to declare certain areas as state land, but these plots were not always marked accurately on maps. A Civil Administration team corrected and is correcting the line, known as the “blue line,” retroactively, and at times there are areas thought to have been state land which have actually never been seized by the state.

On some of these areas settlers have built houses.

Often these plots are located inside large settlements, which are themselves legal according to Israeli law, if not according to international law.

According to a Civil Administration document submitted in the past to the High Court, there are at least 1,048 structures built on West Bank land mistakenly thought to be state lands. If the Mitzpeh Kramim verdict is interpreted as applying to them, too, they will be able to be legalized retroactively.

According to the same document, 1,122 additional structures in the West Bank were built in breach of planning laws more than 20 years ago, and a broader interpretation of the verdict could legitimize them as well.

After the Palestinians petitioned the High Court against Mitzpeh Kramim, settlers filed a civil suit to the District Court, asking they be declared as the area’s owners. The Palestinians’ petition, which was rejected for this reason, is now expected to be returned to the High Court. The justices may want to limit the District Court’s ruling.

Lawyer Shlomy Zachary, of Yesh Din, who represents Palestinians in land cases, told Haaretz the verdict could indeed legitimize in retrospect “numerous houses built illegally on Palestinian land not held by the state.”Zachary believes the so-called “market amendment” should not be applied in these cases, because the houses were constructed without building permits, so there is no room to say they were built in good faith. Also, the case of Mitzpeh Kramim is not a purchase deal, because the land was handed over to the settlers’ division for nothing in return, he says.

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