IDF against Jewish possession of Palestinian land through cultivation

In unusual development, Judea and Samaria commander petitions High Court to reject previous decision.

By DAN IZENBERG
olive harvest 88 248 (photo credit: )
olive harvest 88 248
(photo credit: )
In an unusual development, the military commander of Judea and Samaria has petitioned the High Court of Justice, asking it to reject a decision by a military appeals court that Jews who had spent 10 years cultivating land owned by Palestinians were legally entitled to possess it. The petition was filed November 5, but came to the attention of The Jerusalem Post on Sunday. The petition and the military appeals court ruling concern three plots of land that had been registered with Palestinians but that have been occupied and cultivated by the Foundation for the Land of Israel Seminary for more than 10 years. The foundation applied to a civil administration committee to register the land as being in its possession, in what is called "first registration." The committee rejected the application on the grounds that the occupiers could not prove they had come into possession of the land legally. The foundation then turned to the military appeals court, which ruled that according to the Ottoman land law, as long as it was clear that a person had cultivated the land for 10 years, he did not have to prove how he had come to gain control of it in the first place. The state's representative, attorney Avi Licht, petitioned against the decision on behalf of the army and the civil administration. "We are concerned here with an extremely acute problem," he wrote. "This is because the appeals committee's interpretation [of the Ottoman land law] could open a channel for misusing the 'first registration' procedure to take control of land and steal it from those with rights to it, even though that was not what the appeals committee intended to do." According to Licht, "first registration" is a procedure whereby a Palestinian landowner could formally register "Miri," or abandoned state land that he had cultivated for at least 10 years, even if the land was not included under his name in the official land registry. Only one-third of the land in the West Bank was officially registered by the British mandate or the Jordanian government before Israel took control in 1967. However, there was a formal procedure for establishing a "first" or preliminary registration on land that had not yet been registered in the land registry book. This "first registration" was also binding, and no one could contest it after a committee had approved it. Although anyone registered as being in possession of Miri could not own the land outright, that person's rights of possession were similar to ownership. The Palestinians included in the petition all claimed to have inherited the land in question and to have cultivated it themselves. According to Licht, Palestinians had difficulty continuing to cultivate land they had looked after in the past, either because they had left the West Bank and could not return or because of the travel restrictions imposed upon them by the army for security reasons. "These restrictions make it difficult for Palestinians to cultivate their land or have access to it, especially lands located near Jewish settlements," he wrote. "Under these circumstances, unfortunately, an unacceptable practice has developed whereby lands in Judea and Samaria are occupied. If we accept the military appeals committee interpretation [of the Ottoman law], it will, unintentionally, encourage lawbreakers. All anyone who wants to take over land that does not belong to him has to do is to cultivate it for 10 years. That way, he will obtain the rights to it." Such an interpretation, Licht continued, "puts the law at the service of the violent trespasser. It causes harm to public order because it creates an incentive for trespassers to occupy land that does not belong to them under the cover of the security situation." He warned that the interpretation given by the appeals committee "could cause serious harm to protected residents." In response to the petitioners' request, the High Court issued an interim injunction, prohibiting the registration of the land in the name of the foundation until it ruled on the core of the petition.