Israeli Court Ruling Could End Up Legalizing 2,000 Settlement Homes

Court accepts that construction on private Palestinian land can be legalized retroactively if the land had mistakenly been thought to belong to the state ■ Ruling to be ultimately considered by the High Court

Yotam Berger
Yotam Berger
The street in the Alei Zahav settlement that has some houses constructed on private Palestinian land, February 9, 2019.
The street in the Alei Zahav settlement that has some houses constructed on private Palestinian land, February 9, 2019.Credit: Moti Milrod
Yotam Berger
Yotam Berger

A Jerusalem district court judge has accepted a legal theory put forward by the government, which may set a precedent allowing for the legalization of settlement homes built on privately owned Palestinian land.

A final ruling in the case, involving the northern West Bank settlement of Alei Zahav, could provide judicial grounds for the legalization of up to 2,000 homes in West Bank settlements whose legal status has been in dispute.

In his ruling last month regarding Alei Zahav, District Court Judge Carmi Mossek accepted the state’s position that settlement construction on private Palestinian land can be legalized retroactively if the land had mistakenly been thought to belong to the state.

The state has been relying on this legal argument for a number of months, basing its position on market overt – that transactions conducted in good faith under certain circumstances are considered valid even when there are problems with legal title. The same legal concept, however, is also to be taken up by the High Court of Justice in another case involving the West Bank outpost of Mitzpeh Kramim.

Judge Mossek’s ruling is the first accepting the state’s position. As a result, four homes that had been built on what had believed to be state land will be legalized despite the fact that the land involved was owned by Palestinians.

In the Alei Zahav case, the state relied on a military order applying the market overt concept in the West Bank. The order provides that if the Israeli Civil Administration in the West Bank has allocated land to a West Bank settlement in the genuine belief that it was state land, settlement construction on it will be deemed legal even if it is later discovered that the Civil Administration was mistaken.

As with other land in settlements in the West Bank, the site of the homes in question in Alei Zahav was thought to be state land based on old maps which crudely designated land boundaries based on what is now antiquated technology. A team from the Civil Administration has been reexamining the land boundaries in the West Bank and has found that some plots in West Bank settlements, including the homes in question at Alei Zahav, were built on land owned by Palestinians.

On May 14 Judge Carmi Mossek ruled that the military order containing the market overt concept applies to Alei Zahav and the residents of the land in question are fully entitled to exercise their ownership interests to the land. The judge gave the state until September to complete the technical requirements for legalizing the buildings on the plots.

Among the other recent cases in which the state has relied on the military order was one involving a dispute over the ownership of land in the northern West Bank settlement of Nili. In that case, the state’s legal counsel said that position was in accordance with a legal opinion issued by Attorney General Avichai Mendelblit.

The state invoked a similar argument last year before the Jerusalem District Court involving efforts to legalize the unauthorized outpost of Mitzpeh Kramim near Ramallah. The court in that case also agreed that the market overt principle applied but the facts of the case were somewhat different in that the state had been deeply involved in selecting the location of the outpost, despite the fact that the outpost was unauthorized. The dispute is now before the High Court of Justice.

The High Court also has a case pending before it challenging a law passed by the Knesset in 2017 that would retroactively legalize the seizure of some privately owned Palestinian land on which settlement construction has been built in good faith or with government encouragement. It is assumed that the High Court will strike down that law, and therefore the attorney general’s staff has looked to other legal principles that would accomplish a similar result, including the market overt principle.

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