Analysis: The state, not the court, ordered the settlers to leave

Ownership and possession are not identical legally.

By DAN IZENBERG
disputed hebron home building 248.88 (photo credit: Tovah Lazaroff)
disputed hebron home building 248.88
(photo credit: Tovah Lazaroff)
There is a misconception about what actually happened last week when the High Court of Justice handed down its ruling on the disputed building in Hebron. The common description of the event in the press and among public figures on both sides of the ideological divide was that the court ordered the settlers to leave the building. Even Deputy Defense Minister Matan Vilna'i, who should have known better, was quoted in Sunday's newspapers as saying that the "High Court's instruction to evacuate the building will be implemented." But the court didn't instruct the state to evict the settlers. It didn't have to, because it was the state that ordered the settlers to leave the building in the first place, after examining the claims and counter-claims of the settlers on the one hand, and Palestinian Faez Rajabi on the other. What the court did was to uphold the state's decision after that decision was challenged by the settlers who petitioned the court on December 3, 2007. Furthermore, the court did not even try, nor was it authorized, to settle the dispute over who owned the building, the settlers or Rajabi. In upholding the state's decision against the challenge by the settlers, "all" the court did was accept the state's claim that Rajabi was in possession of the building on March 19, 2007, the evening the settlers moved into it. According to the law, from the day a trespasser takes possession of (occupies) a property that does not belong to him, the state has 30 days to evict him without having to go through a prolonged judicial procedure. This is known as the "fresh trespass" procedure. Ownership and possession are not identical legally. Ownership is a legal status, while possession is essentially a physical status. In other words, once 30 days have gone by, someone who clearly does not own the property but has occupied it for more than 30 days has certain legal rights. He can no longer be evicted according to the "fresh trespass" procedure. It was the state, not the High Court, which determined that Rajabi was in possession of the building on March 19, when the settlers took it over. The decision wasn't a straightforward one because while the civil administration was conducting an investigation to determine who actually owned the building and, consequently, whether the March 19 takeover was legal or not, it found that both sides had lied to it. Rajabi had lied when he told the authorities he hadn't signed a sales contract with the settlers' front-man. The settlers allegedly lied by presenting forged documents to prove that the sale had been completed. For various reasons, including the fact that the sale was not officially registered, the fact that the settlers could not prove they had paid the full amount to Rajabi and the fact that Rajabi was carrying out repairs to the building at the time the settlers took it over, the state concluded that there was enough "administrative evidence" to declare that Rajabi was in possession of the building. It did not deny the sales contract or the fact that a large sum of money had been given to Rajabi by the settlers' representative. However, it concluded that these actions were not enough to prove the sale had been completed and that there was a greater weight of evidence indicating that Rajabi was still in possession of the building. The court not only found that the state's decision was within the realm of reasonability and therefore it should not intervene, the justices made it clear they agreed with the state. The settlers, represented by Attorney Nadav Ha'etzni, kept trying to prove in court they had purchased the building. Indeed, the question of ownership is at the heart of the matter. If the settlers did own the building prior to their physical occupation of it, then they were in possession of it. If you own a property, you possess it. If you possess it, you don't necessarily own it. But the court kept insisting that property disputes must be resolved in the district court where evidence can be presented and witnesses can testify on behalf of both disputants. To be absolutely accurate, what the court did was to uphold the state's position and then order the state to suspend the order for three days. This in order to give the settlers time to leave the building voluntarily and avoid a confrontation. If the settlers didn't make use of this window, the court cleared the way for the state to carry out the order it, not the court, had issued. This isn't a semantic distinction. Often the court is blamed for being overly "activist," in the sense that intervenes with state decisions and policies. And there is no question that it often does intervene. For example, when it ordered the state to make changes in the separation fence, it ordered the state to do something the state didn't want to do. That isn't the case here. In the case of the disputed Hebron building, the court ruled that there was no legal reason to prevent the state from doing what it, not the court, wanted to do.