Israel's Top Court Reverses Ruling on West Bank Outpost, Allowing Settlers to Stay

Two years ago the court ruled that the Mitzpeh Kramim outpost could not be recognized because the sale of its lands to settlers was not made in 'good faith,' but an expanded panel now reversed that ruling

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The Mitzpe Kramim settlement.
The Mitzpeh Kramim settlement outpost in the West Bank.Credit: Michal Fattal

Israel’s Supreme Court ruled against the evacuation of settlers living in the Mitzpeh Kramim outpost near Ramallah on Wednesday, reversing a previous ruling that ordered their removal.

Two years ago, the court ruled that deals pertaining to abandoned property in the West Bank could be recognized if proven that they were made in "good faith," which they said did not apply to Mitzpeh Kramim.

But on Wednesday, an expanded panel of justices reversed that decision and accepted the government’s argument that the expropriation met the test of “good faith” and that so-called “market regulations” apply to outposts.

These market regulations state that land purchased from Israel’s Commissioner of Government Property and Abandoned Lands in Judea and Samaria, meaning the West Bank, can be recognized legally if at the time of the transaction the commissioner believed the land to be government owned.

The ruling was supported by four justices: Neal Hendel, Isaac Amit, Noam Sohlberg and Daphne Barak-Erez. The court's President Esther Hayut, and two other justices, Uzi Vogelman and Anat Baron, dissented.

Both the Palestinian plaintiffs and former Attorney General Avichai Mendelblit had sought a new hearing in 2020. Mendelblit appealed at the behest of Defense Minister Benny Gantz and former Justice Minister Avi Nissenkorn, fearing that the conditions set for the "good faith" test would prevent the use of the market regulation to qualify thousands of houses in the West Bank.

Those involved in the discussions considered warning the court that without a further hearing to clarify the ruling, the court might create a situation of mass evacuations of settler homes, something the attorney general sought to avoid.

Palestinian landowners, who were represented in court by attorney Hussam Younis, also opposed the ruling allowing “market regulations” to apply in the West Bank, citing its wide implications. But, in a hearing on the petition last October, the justices refused to take up the matter on those grounds.

The petitioners argue that the local law in the West Bank does not recognize the “market regulation” arrangement but gives weight to the landowners’ rights. It also notes that since the West Bank is occupied territory, the local law cannot legally be changed.

Mitzpeh Kramim was established in 1999 near the Kochav Hashahar settlement, when it was relocated from another area in a move the government was aware of. The government also promised the outpost residents that it would be formally legalized in its new location.

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.

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