The Jerusalem District Court’s ruling that legalized the West Bank outpost of Mitzpeh Kramim is a reminder of the history of deceitful tactics Israel has used to take over land for settlement in the territories under its military's control.
More importantly, it’s an example of how the courts are used to turn land never explicitly confiscated by the Israel Defense Forces into land that can be given to settlers for residential purposes, despite Palestinian ownership claims.
The government has learned, based on legal advice that it received, that the way to take over land for Jewish settlement is by simulating a military need as a justification. The process in this particular instance began back in 1967 by declaring an area – apparently a larger plot than what was necessary for military training – as a closed military zone.
Then the area is transferred to a military unit – in this case, the land was given in 1976 to the Nahal Brigade (whose soldiers combine active duty with work on outlying settlements or outposts). Finally, it is given to Jewish communities for civilian settlements, as it transpired in 1979. In order to implement this last stage, the IDF produces a seizure order for “military needs,” a well-known Israeli sham tactic.
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So far, the routine runs its course – this is how the trickster state-settlement project goes. The Mitzpeh Kramim case, however, is unique. It was established as part of a government decision to regulate the illegal outposts by transferring them from their original location. Mitzpeh Kramim was established in a territory not included in the military’s seizure order and, according to the claim, built partially on private Palestinian land.
Moreover, the territory in question was not used residentially, and the attempt to change its zoning status failed. Needless to say, no building permits were granted for the area, rendering the structures there illegal. Given that there was not even the remotest legal basis for the construction of the outpost, a state that was not a settler state would have made sure it evacuated the settlers from land they had no legal rights to be on.
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 2011, Palestinians petitioned the High Court of Justice 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 under way 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.
Since the settlement enterprise is a top-priority state project – a flagrant violation of international law that prohibits an occupying force to settle its citizens in occupied territory – the state is insisting on “straightening out” that which is crooked.
The court’s ‘shticks and tricks’
In a move that disguises itself as a resident's claim for declaratory judgement but is apparently a step taken by the state, the court was asked to authorize the settlement.
And the court did so, in two steps. In the first move, the court determined that the official responsible for the abandoned government property transferred it to the World Zionist Organization as well as the land on which the neighborhood was built, despite the fact that this property was not the official’s land to transfer because it was not seized militarily.
This legal process is based on the possibility that the official saw a map, which was not presented to the court, in which this land was marked as part of that which was allocated to the World Zionist Organization; therefore, even if the official had erred (and he clearly did) his actions are binding.
To adhere to the innovative conclusion, according to which a government authority can transfer property that it owns only in its imagination, the court relied on the testimony of a man of 93 who was the official responsible for the abandoned property.
This witness struggled so much to provide answers that the court recommended that the defendants stop quizzing him. It’s hard to forgo the impression that had this witness testified the opposite of what he did, the court would have rejected his testimony as unreliable. The court also showed a double standard in its handling of the following question: How much can be learned about the stage in which the felony took place from events that transpired after it happened?
In that sense, whatever strengthened the authenticity of the version embraced by the court becomes hard evidence, whereas information that contradicts the court’s version lacked any value.
The court also handled the claims of each side in the same manner—it allowed the prosecutors to explain their claims extensively, while it opted to block the defendants from explaining their position.
The second move the court took to disguise the step taken by the state (to claim and transfer the land) was to apply a ‘’market overt’’ concept to the WZO.
According to this property-ownership concept, transactions conducted in good faith under certain conditions are considered valid — even if their legally faulty, such as in the case of stolen goods. Thus, the WZO was treated by the court as an entity which received land rights in good faith. The court treats the WZO as a private buyer, thereby absolves them of any semblance of responsibility. Subsequently, the court’s reliance on the testimony of the official in charge of the property, which was weak in substance, became all-conclusive, assuming that the WZO should be treated like any buyer on the market.
Confounding logic, two mistakes—one made by the entity that transferred the land (the government) and another made by the entity that received it—create a valid right to the property, ex nihilo. Let’s imagine for a moment that the people claiming ownership to the land were not Palestinian but Jewish. Would such legal inventions have been created then?
Nonetheless, there is still a ray of light in this dark tale; the manner in which the Civil Administration behaved initially was respectful and fair; the administration refused at first to join the “shticks and tricks” method to legalize the neighborhood.
But during the hearing at district court, the Civil Administration changed its stance, in light of the testimony provided by the official in charge of the property. One can only hope that the Civil Administration changed its stance as a result of deep inner conviction and not due to any pressure. The court criticized the conduct of the administration, though it ought to have been extolled for the extent of independent thinking it did show.
Even those who arrived late to the party know that Israel’s masquerade ball when it comes to the settlements is over. It’s clear that a settlement is not created by individuals but is rather an act of the state.
The old claim that the land is being used temporarily is nothing but a false pretense made for the sake of appearing to be abiding by international law. The ancient claim that Israel is careful not to hurt Palestinians' property rights has been revealed to be baseless.
Israel’s land-grab law – which allows the state to expropriate Palestinian land on which settlements or outposts were built “in good faith” – basically spells out that the claim is false. The verdict on Mitzpeh Kramim is another step in this direction.
The idea of Israel creating a land bank of government-owned Palestinian properties in order to promote the interests of Jewish settlement over the interests of Palestinians as individuals and as a collective is highly questionable from a legal standpoint.
The legal system faces a challenge of the first order: How can it avoid collaboration with the violation of international law? How can it preserve its integrity and its commitment to equality? How can it avoid an abuse of the law?