Israeli Court: A West Bank Outpost Can Be Legalized if Land Was Seized in Good Faith

Precedent-setting ruling was made based on the 'market overt concept' of property ownership, in which transactions conducted in good faith under certain conditions are considered valid – even if they have certain legal faults

Yotam Berger
Yotam Berger
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The Mitzpeh Kramim settlement, 2012
The Mitzpeh Kramim settlement, 2012Credit: Michal Fattal
Yotam Berger
Yotam Berger

The Jerusalem District Court ruled on Tuesday that the illegal outpost of Mitzpeh Kramim in the West Bank can be legalized, even though part of the land on which it is built is not state-owned land and Palestinians have claimed ownership.

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In a precedent-setting ruling, Judge Arnon Darel accepted the legal claim of the residents, based on the 'market overt 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.

The Mitzpeh Kramim settlement, 2012Credit: Michal Fattal

The declatory judgment states that the residents of Mitzpeh Kramim are the legal owners of the land and that the Israei military’s Civil Administration in the West Bank cannot revoke the agreement granting the residents rights to the land, and the Palestinians are not entitled to remove them from their homes.

The judge said the legal principle involved grants preference to a purchaser in good faith who took reasonable actions “based on a factual presentation that has the effect of testifying to the legality of the agreement,” and in this case the land allocation is a valid legal agreement in every way.

Mitzpeh Kramim was built in 1999, near the settlement of Kochav Hashahar northeast of Jerusalem, 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, the government did not know at the time that the land was privately owned because of confusion in the mapping of the area, and now admits that the land should not have been allocated to the settlement.

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 new law legalizes previously illegally seized land used for Jewish settlement.

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 judge ruled on Tuesday. The residents said the land had been allocated to the World Zionist Organization legally, which then allocated the land to the residents.

A number of officials testified during the case that the allocation of land was made in good faith, including former Defense Minister and IDF chief of staff Moshe Ya’alon.

The next stage is for the High Court of Justice to continue hearing the petitions from the Palestinians, which were frozen while the District Court heard its case. If the High Court approves the lower court’s ruling, then Mitzpeh Kramim will be legalized.

MK Bezalel Smotrich (Habayit Hayehudi) said in response to the ruling that "this is a small step, but a big hope. This decision is a knockout. An important step in the right direction."

MK MIchal Rozin (Meretz) responded as well, calling the court's ruling "a mouthpiece for the destructive ideology the justice minister is promoting." She said the ruling "undermines the basic principles of the constitutional laws and of the democratic character of this country."

On behalf of the Palestine Liberation Organization, Palestinian legislator Dr. Hanan Ashrawi said in response: "The Jerusalem ‘District Court’ ruling to legalize the settler outpost of Mitzpeh Kramim is an outrageous travesty." She added that "the Israeli annexation of Palestinian territory, whether on public or private land, and its illegal settlement enterprise are an egregious violation of international law and conventions." Ashrawi said that "this ruling makes a dangerous precedent of retroactively whitewashing illegal outposts."

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