Settlers gather for prayer in Ramat Gilad_311.
(photo credit: REUTERS/Ronen Zvulun)
Peace Now on Tuesday asked Attorney-General Yehuda Weinstein to bar former
Foreign Ministry legal adviser Alan Baker from the West Bank “outpost
The group took issue with his connection with a pro-settler
group, the “campaign for the outposts,” for whom he published a legal opinion in
support of continued settler use of private Palestinian property in some
On Monday, Prime Minister Binyamin Netanyahu named a
three-person panel to examine issues relating to land status in the West
But it is widely believed that this panel, nicknamed the “outpost
committee,” will specifically examine issues relating to West Bank outposts
constructed on private Palestinian property.
Right-wing politicians hope
that it will supplant the 2005 work done for the government by private attorney
Talia Sasson, who penned a report on the West Bank outposts. An Israeli official
noted that the committee’s mandate had not yet been published.
Netanyahu has already named three panel members: Baker, former Supreme Court
justice Edmund Levy and former deputy president of the Tel Aviv District Court
In a letter written by its lawyers Michael Sfard and
Shlomy Zachary, Peace Now said it believed that conflict of interest issues made
it impossible for Baker to serve on the committee.
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Peace Now specifically
noted that after the committee’s work was completed in three months, Baker would
likely work as an attorney specializing in outpost and settlement
His future work will rely, in part, on the government’s legal
opinion, which as a committee member, he will now be involved in constructing,
Peace Now said. The organization noted that it was important in this kind of
situation to avoid even the appearance of a conflict of interest issue. Baker
could not be reached for comment.
The Prime Minister’s Office also
refused to respond.
An Israeli official noted that the committee had not
yet been finalized. The official added that the panel members had been chosen
for their legal expertise.
Last week Baker, along with lawyer Harel
Arnon, published a legal opinion that examined the powers vested under military
legislation and international law in the Custodian of Absentee Property in the
In their opinion, they said that leasing absentee property,
including for residential purposes, is permitted.
Settlers and right-wing
activists who support authorizing the outposts have argued that some of the land
now classified as belonging to private Palestinians is abandoned property and
thus can be legally used by the settlers.
Arnon and Baker note that the
Custodian is granted authority under the 1967 Order regarding Abandoned Property
in Judea and Samaria, according to which ownership rights to absentee property
are vested in him; however the Custodian must care for the land on behalf of its
owner and cannot sell the property.
Baker and Arnon argued that under certain circumstances the Custodian may lease absentee property or grant land rights to third parties, if the leasing improves the property value and does not affect the absentee landlord. They explain that their argument follows a 1997 opinion from the Civil
Administration’s legal adviser, which said that “since absentee property is
private property, the Custodian’s affinity to it is temporary and is only for
maintaining the property...the Custodian must not make any transaction
regarding the property that would be contrary to his duty and especially to
return the property to its owner, should he return to the area.
Baker’s legal opinion further states that according international law, as
understood by the Supreme Court, Israel’s control of the West Bank is a military
occupation and as such the Hague Conventions of 1907 apply. They argue that
there is no impediment to the Custodian’s leasing abandoned land under certain
Their opinion also raises the issue of whether certain
articles of the 1907 Hague Conventions, entitled “Military Authority over the
territory of the hostile State,” can be considered to apply in the West Bank,
“in circumstances where there is no dispute that this is enemy territory, but
territory that is at worst controversial and perhaps even ‘no man’s land’ with
respect to international law.” Arnon and Baker also argue that there is no legal
impediment under either military or international law to leasing property under
If and when the absentee landowner returns and
proves ownership he can benefit from the land improvements, the two attorneys
“Even if there are claims that the current legal situation in the
West Bank does not allow for the Custodian to lease abandoned land, either
because of the Order on Abandoned Properties or because of the Hague
Conventions, there is no obstacle in terms of internal Israeli law to making a
regulatory amendment that would allow it explicitly,” the opinion argued.
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