An investigation by Haaretz has found that the Settlement Division assigned the rights to land in the settlement outpost of Mitzpe Kramim, two months after the government was informed that the plots were in fact Palestinian-owned and had been transferred to the World Zionist Organization department in error, despite claims to the contrary.
The Settlement Division also submitted to banks documents testifying that the outpost residents were the legal owners so they could obtain mortgages, months after discovering that the land belonged to Palestinians. The Settlement Division thus enabled settlers to get mortgages before ownership status of the land had been finalized.
The Settlement Division commented that it was not a party to the legal proceedings in the High Court of Justice, in which the state said the land was Palestinian-owned, and therefore was not aware of that fact when the agency transferred ownership to settlers. However, the High Court injunction halting construction in Mitzpeh Kramim, issued in the wake of the state’s admission, was public knowledge and was even reported in the media. Additionaly, the Mitzpeh Kramim residents council and the company that built the outpost homes, in coordination with WZO, were parties to the High Court proceedings, and they were named in the injunction.
Mitzpeh Kramim became a symbol for the Israeli right in late August, when the Jerusalem District Court awarded ownership of the private Palestinian land on which it was built to settlers because the state and the World Zionist Organization's the Settlement Division had given the land to the settlers in good faith, unaware it had Palestinian owners. The court issued the precedent-setting ruling regarding the outpost, which is located near Kochav Hashahar in the central West Bank, based on the market overt or Marché ouvert principle of property ownership. According to that legal principle, transactions conducted in good faith under certain conditions are considered valid, even in the case of the sale of stolen goods. The court ruled that the state genuinely believed that it controlled the land when it transferred it to the Settlement Division, which in turn assigned it to the settlers. Since both parties were acting in good faith, the settlers are now the rightful owners, even though the state never owned the rights to the land.
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Legal experts told Haaretz that the ruling is controversial, even if the land was allocated in good faith be it because the land in questinon was not deemed state land but rather land seized by the army, or because the land was given away without compensation. Yet documents and other testimony obtained by Haaretz raise significant doubts as to whether the allocation of the land was really carried out in good faith – if the Settlement Division already knew of the Palestinian claims to the land.
On February 16, 2011, shortly after two Palestinian men petitioned the High Court against the construction work in Mitzpeh Kramim, then-Justice Elyakim Rubinstein issued a temporary injunction against the community’s residents council and Amana, the settlement movement that built the outpost homes, headed by Ze’ev Hever. The injunction was issued in the wake of the statement submitted by the respondents named in the petition, including the defense minister, the head of the Civil Administration and the military and police commanders in the West Bank. The state claimed it transferred the land to the Settlement Division because it didn’t know the property was not under its control — in contrast to adjacent plots in Mitzpeh Kramim that were under army, and thus state, control. Rubinstein ordered a stop to construction until the court’s next ruling.
Even though construction had already begun on the homes, the Settlement Division had not yet transferred to the property rights to the residents at that stage. The various documents authorizing the transfer were signed between May and July 2011, some four months after the High Court of Justice issued the injunction and after it was already known that private Palestinians owned the land.
Besides granting the settlers land rights, the Settlement Division provided them with the documents needed to receive mortagages, which Bank Leumi and Bank Mizrahi Tefahot agreed to provide between March and August 2011, after the temporary injunction was issued and after they already knew of the Palestinian claims.
Banks are obligated to examine the ownership of a property to be mortgaged before granting the loan. In this case, the two banks checked with the Settlement Division to ascertain the ownership of the land involved. In such cases, the banks see "the Settlement Division like the Israel Lands Authority inside the Green Line,” a senior financial executive told Haaretz. He said the Settlement Division informs anyone making such requests regarding ownership claims. The source said the division in this case confirmed that the settlers owned the land in question, even though it may have known already of the Palestinian claims to the land. An employee of a second financial institution confirmed the nature of the relationship between the banks and the Settlement Division regarding this affair.
Hussam Younis, a lawyer representing the Palestinian landowners before the High Court and the Jerusalem District Court, told Haaretz that the Settlement Division’s actions violated the injunction, adding this proved that “the state is behind the settlers' bullying and lawlessness.” He said additional legal measures against the state as well as the mortgage banks were being considered. The injunction prohibits building in Mitzpeh Kramim, but not the granting of mortgages.
Dror Etkes, the founder and director of the civil society organization Kerem Navot, which advised the Palestinian petitioners in the case, said the documents proved that in this case, “as in all the other cases of appropriation of private land in the West Bank that we know about, there is zero good faith on the part of the settlers.”
The Amana movement declined to comment.
In a statement, the Settlement Division said the Jerusalem District Court accepted its argument that it acted lawfully in granting the residents of Mitzpeh Kramim land rights, by dint of a permit issued to the devision by the Office of the Custodian of Absentee Property. “The division was not a party to the legal proceedings in the High Court of Justice and was not named in the injunction," the Settlement Division stated. "The claim that it knew the land involved was privately-owned by Palestinians is untrue.”
The judge's ruling in August was on a case dating back to 2013, when the residents of Mitzpeh Kramim filed suit in the Jerusalem District Court asking to recognize their rights to the land. The residents said the land had been allocated legally to WZO, which then allocated the land to the residents.
Mitzpeh Kramim 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, and now admits that the land should not have been allocated to the settlement.
According to the ruling, the residents of Mitzpeh Kramim are the legal owners of the land based on the legal principle of good faith. Moreover, Israel’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.