The Palestinian petitioners who sought to have the Mitzpe Kramim outpost evacuated requested another hearing before Israel’s High Court of Justice on the August ruling, which said the outpost must be evacuated within three years.
The justices ruled that deals pertaining to abandoned property in the West Bank could be recognized if proven that they were made in good faith. Attorney Hussam Younis, representing the petitioners, joined Attorney General Avichai Mendelblit’s request for another hearing, which he filed last month, but for very different reasons.
Younis opposes the interpretation given in the “market regulation” ruling in the West Bank that says deals done with the Custodian of Government and Absentee Property may be recognized if at the time of the deal he believed the property to be government property. The Palestinian petitioners in the case oppose this ruling because of its wider implications.
Attorney Harel Arnon, representing the residents of the outpost, commented on the unusual request saying: “Never before have we seen a litigator who won a case but seeks to appeal it solely due to broader implications that have nothing to do with the actual dispute.” Dr. Ronit Levine-Schnur, a senior lecturer at the Interdisciplinary Center Herzliya, who was involved in preparing the Palestinian petitioners’ position, explains that “market regulation” is a “very exceptional” step and so “there is no reason to adopt it if it is possible to compensate the buyer in another way.”
The High Court ruling stipulated that the conditions for the regulation do not obtain in the case of Mitzpe Kramim, since the state did not pass the good faith test. According to the justices, the Custodian of Government Property “closed his eyes for many years to the numerous warning signs that were before him.”
The August ruling overturned an earlier one by the Jerusalem District Court that said that the “market regulation” could be applied in the case of the outpost. Mitzpe 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.
The justices, led by Supreme Court President Esther Hayut, ruled that while it was not possible to transfer ownership rights to the property through “market regulation,” custody rights and use of the site until the army ceases to control the area could be transferred, even if the duration of this control is unlimited. 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.
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The petitioners also argue that since only 0.25 percent of the lands in the West Bank have been allocated to Palestinians, stipulating such an arrangement exclusively benefits the settlers. Instead, the petitioners propose a different interpretation to the section of the law, whereby whoever allocated the property will compensate whoever had custody of it without harming the owner’s property rights.
After the High Court issued its ruling, the attorney general field a request for another hearing at the behest of Defense Minister Benny Gantz and Justice Minister Avi Nissenkorn, on the basis of two principles stipulated by Justice Hayut – the first being that the “market regulation” may not be applied to an area that is under the army’s control and managed by the Custodian of Government Property. The second has to do with the conditions of the “good faith” test.
In discussions at the ministry, Hayut was criticized for having basically approved the usage of the “market regulation” arrangement while posing conditions for the good faith test that would prevent it from being used to retroactively legalize thousands of homes in the West Bank. One thing that was discussed was the possibility of arguing in the request for a new hearing that the ruling would lead to the evacuation of many communities, something the attorney general wishes to avoid.