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The Mitzpe Kramim outpost. Picture taken March 25, 2015.(Photo by: RONEN ZVULUN / REUTERS)
State to court: Settler 'good faith' Palestinian land seizure can be legal
By TOVAH LAZAROFF
03/12/2019
A short time after the creation of Mitzpe Kramim in 1999, the IDF relocated the outpost to an agricultural area within the master plan.
The state is pushing the High Court of Justice to overturn its long-standing legal understanding that illegal settler homes on private Palestinian property cannot be retroactively authorized.

On Sunday night, it asked the court to apply the Israeli Market Regulation Law to the West Bank. Such a step would allow illegal settler homes to be authorized if they were built in a “good faith” situation where it was not known that the structures were on private Palestinian property.

The state made its request in response to a 2011 petition by three Palestinian land owners against the Mitzpe Kramim outpost, which is located just outside of the Kochav Hashahar settlement in the Binyamin region of the West Bank.

In 2013, while the High Court case was ongoing, the Mitzpe Kramim families turned to the Jerusalem Magistrates Court on the matter. In a historic ruling last August, the Magistrates Court sided with the settlers.

The Magistrates Court ruled that the market regulation applied. It said the outpost could be retroactively legalized even though most of its more than 20 structures are built on private Palestinian property registered to individual Palestinian land owners. In the last several decades, the High Court has ruled in favor of Palestinians in such cases and ordered the removal of the outposts.

In the aftermath of the Jerusalem Magistrates ruling, the High Court has moved forward with the initial 2011 case.
The state explained to the court that Kochav HaShahar had been created on land for which the IDF had issued a number of seizure orders and had previously declared to be a closed firing zone. In 1982, the Civil Administration issued a master plan for Kochav Hashahar that was expanded in 1995.

A short time after the creation of Mitzpe Kramim in 1999, the IDF relocated the outpost to an agricultural area within the master plan. But it did not authorize the community, which was developed with the help of the World Zionist Organization’s settlement division.

In its statement to the High Court, the state explained that the community had every reason to believe that they were on state land and not private Palestinian property. It argued that the 1979 Elon Moreh ruling which forbade the construction of a new settlement on land that had been seized from Palestinians was not absolute principle and did not necessarily need to be applied here.

It is still possible, the state argued, to apply the Market Regulation law to such instances. The relevant issue here, the state said, is not whether Palestinians originally owned the property but whether the settlers believe that the property in question was state land and thus could be authorized for their use.

The state’s response is part of a push by the Justice Ministry to revolutionize the country’s legal understanding of how to handle illegal Jewish building on private Palestinian property.

Two years ago, the Knesset passed the Settlement Regulation Law, which calls for the retroactive legalization of some 4,000 settler housing units, mostly in existing settlements.

The High Court is adducting the legality of the law. But in the interim, the state has pushed forward with new targeted legal understandings, such as the Market Regulation, which it hopes will address the boarder issue of unauthorized settler homes in a way that is more legally palatable to the court.

On Sunday, the left-wing group Peace Now petitioned the High Court of Justice to be a party to the proceedings, in which it would be viewed as a “friend of the court” so that it could provide expert background testimony on the issue.

As part of the petition it provided the court, Peace Now provided a list of all the outpost and settlements with illegal construction on private Palestinian land as well as data on another 3,000 units legally built on private Palestinian land in the early part of the settlement movement with the help of military land seizures orders.

In a statement to the media, it said that the court ruling would “likely serve as a precedent for the massive land grabs that the state has carried out over the years in the settlements.”

It argued that the Market Regulation was not applicable in Mitzpe Kramim or in other situations because it was a one-sided discriminatory remedy in support of Jews and against Palestinians. “Only one side is consistently discriminated against, as evidenced in the data according to which 99.76% of the allocated state land in the West Bank was given to the Israeli population, while less than a quarter of a percent was allocated to Palestinians since 1967,” Peace Now said.

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