Settlers can’t use Ottoman law to claim land

High Court gives civil administration month to evict settler; ruling could open door to more evictions.

Migron 521 (photo credit: Marc Israel Sellem)
Migron 521
(photo credit: Marc Israel Sellem)
The High Court of Justice ruled late Tuesday night that a settler must evacuate private Palestinian land near Kedumim within a month.
Rights groups said the precedent- setting judgement could have far-reaching effects on Israeli land claims in the West Bank.
In the ruling, the panel of justices – Supreme Court President (Emeritus) Dorit Beinisch, Edna Arbel and Miriam Naor – found that settlers could not use Ottoman land laws to gain ownership rights to private Palestinian land. (Although Beinisch turned 70 on February 28, she still sits on cases that the court began to hear before she passed the mandatory retirement age for judges.)
Yesh Din – Volunteers for Human Rights, which filed the petition on behalf of Palestinians land claimants, said on Wednesday that the ruling was significant, not only because settler Michael Lesens would now have to evacuate the land, but since it also has widereaching implications for tens of thousands of hectares of West Bank land held and cultivated by settlers – who use the same Ottoman land law as the basis for ownership claims.
In the ruling, the court accepted a petition brought by three Palestinian landowners, and ordered the Civil Administration of Judea and Samaria to enforce Lesens’s evacuation from the land by April 20.
Lesens must also pay the Palestinians NIS 20,000 and an additional NIS 10,000 to the civil administration.
Yesh Din filed the petition in 2009, two years after the Palestinians said they saw Lesens had fenced off the plot of land, and planted crops and installed an irrigation system on it.
The Palestinians first complained to the civil administration, which issued an evacuation order against Lesens.
But that order was never fulfilled, as Lesens appealed to the military committee of appeals asking for it to be revoked. The committee did so.
Lesens argued that because Kedumim settlers had cultivated the West Bank land for more than 10 years, he was entitled under Section 20 of the Ottoman Land Law to be considered its owner. (Land law in the West Bank is based on Ottoman land codes, to which various amendments have been made.) The High Court, however, dismissed Lesens’s claims regarding the land law, which deals with disputes and states that no claims can be made against against someone who has cultivated a plot of land peaceably for more than 10 years.
In the ruling, Beinisch said Lesens had not provided proof to the court that he had cultivated the land for over a decade, and that he still would have needed to show that he had not taken possession of the land by illegal means.
To prove ownership, the court ruled, settlers must provide proof that they acquired control of the land using honest and legal means.
Beinisch also criticized Lesens for using legal proceedings to delay his evacuation from the land.
The justices said that a central question before the court was whether the civil administration had acted lawfully in issuing its first order to evacuate Lesens from the land, and if that order should be enforced.
The court noted that according to military order 1586 regarding disruptive land use, the civil administration is authorized to order the cessation of disruptive use of privately owned West Bank land, and to take steps to enforce such an order when it is not complied with voluntarily.
The civil administration is empowered to issue such orders – whose source is in international law – to maintain public order in the area and to protect private property, Beinisch said.
Yesh Din attorney Michael Sfard said the ruling “imposes order on the jungle that is taking control of Palestinian lands in the West Bank.”
“We only hope the ruling will be implemented,” he added.
The Samaria Citizens Committee accused Beinisch of taking additional measures at the end of her tenure to enshrine herself as the representative of the Left, by continuing to erode Israeli land ownership in Judea and Samaria in favor of the Palestinians.
The committee called on the government to take legislative measures to undo the judicial harm which had been caused to the Israeli residents of Judea and Samaria.