outpost flag 248 88.
(photo credit: AP [file])
Palestinian landowners whose land was allegedly seized by a Kedumim resident at the instigation of the Kedumim Local Council, on Tuesday petitioned the High Court of Justice against a military appeals court, which had ruled that the civil administration could not expel the settler from the land.
The case marks the first time the High Court will have to interpret a military order allowing the head of the civil administration to expel a settler who trespasses on Palestinian land within three years of the trespass, without having to obtain a court order, a procedure which can take many years.
The military order, known as the Order Against Improper Use of Property, was drafted by the civil administration in the wake of attorney Talia Sasson's report on illegal outposts, which was published in 2005 and adopted by the government.
The petitioners, Ahmed Abdelkader, Abdelrahim Ali and Abdelatif Barham, all from the village of Kaddum, are represented by attorneys Michael Sfard and Shlomi Zecharya. They are calling on the court to reject the military appeals committee ruling that nullified the Order Against Improper Use of Property in this case and determined that the trespasser, Michael Lesens, could not be removed from the property without a court order.
According to Sfard, "the appeals committee decision is a ringing slap in the face to the attempts to strengthen law enforcement procedures in the West Bank. The decision empties of all meaning the military order, which is an important tool in the efforts of the security forces against institutionalized, systematic and widespread criminal activities in the West Bank."
According to the petition, the petitioners and their families cultivated a large area just outside the boundaries of Kedumim for many years. In May 2007, they said Lesens and others allegedly began threatening them when they came to work on the land, and later fenced off part of the area and planted hundreds of saplings.
Lesens claimed he worked the disputed land for more than 10 years, albeit sporadically and not intensively.
The petitioners complained to Brig.-Gen. Yoav Mordechai, the head of the civil administration. After examining the complaint, Mordechai, on August 13, 2007, issued a military order regarding improper use of property and instructed Lesens to get off the land.
Lesens appealed Mordechai's decision. The case was heard before a three-man tribunal of army reserve officers, Col. Eyal Nun, Capt. Uri Keidar and Capt. Moshe Ben-David.
During the hearing, Lesens argued he worked the land for more than 10 years and therefore the military order did not apply. He added that he had been asked to take over the land by the Kedumim Local Council as a way of expanding the settlement by creating facts on the ground. Lesens confirmed he knew the land did not belong to him.
The legal argument in the case revolves around the meaning of the word "use". Lesens only began to intensively cultivate the land in 2007. He said that before that, he would bring students to the area to teach them about nature and raised alfalfa to feed cows.
The petitioners and Mordechai maintained that after 2007, Lesens made a new use of the land and therefore the countdown should begin from the time of the new use.
The appeals court voted two-to-one (Nun and Ben-David vs. Keidar) in favor of Lesens.
In an interview with The Jerusalem Post, Sasson, who recommended promulgating the Order Against Improper Use of Property, said the military appeals court decision was wrong.
She maintained that trespassing by Jewish settlers on Palestinian land is commonplace. In fact, many of the illegal outposts have been built entirely or partly on private Palestinian land.
These land seizures create tensions between Jews and Palestinians. The first responsibility of the military commander in occupied territory is to maintain peace and order, she said. Since these land seizures threaten peace and order, it is up to the military commander to stop them.
Furthermore, she said, the Palestinians are at a great disadvantage vis-Ã -vis the settlers. Before the military order was passed, the authorities could only administratively expel a trespasser within 30 days of the trespass. After that, the matter had to go to court. But Palestinians whose land had been seized have had no success in retrieving their lands through regular courts. That is why she recommended the Order Against Improper Use of Property.
Sasson also maintained that a use becomes "improper" the moment the civil administration determines that it is improper. In this case, the administration determined the use of the land was improper from the moment Lesens began to cultivate it intensively, and not before.