State tells court it will retroactively legalize structures in Alei Zahav, invoking new legal mechanism for the first time
The state informed the Jerusalem District Court that it will retroactively legalize structures built in part on private Palestinian land in the West Bank settlement of Alei Zahav.
In doing so, the state will for the first time invoke a legal mechanism the attorney general approved in December, senior sources say. Alei Zahav is a secular settlement located close to Route 5, which links Ariel and the Greater Tel Aviv area.
According to the legal mechanism approved in December, it is permissible to retroactively authorize illegal construction on private Palestinian land if the land was allotted “in good faith,” meaning if the state erroneously believed that it was state lands when it allotted it.
After the West Bank was occupied in 1967, Israel used now-obsolete surveying technology to declare certain areas as state land, but these plots were not always marked accurately on maps. A Civil Administration team is now using new technology to correct the line, known as the “blue line,” retroactively, finding that some areas that were thought to have been state lands were actually never seized by the state.
The land on which construction took place in Alei Zahav was considered state land, according to the old maps. The Civil Administration team discovered in 2016 that land on which some buildings were built was actually private Palestinian land.
Attorney General Avichai Mendelblit gave a legal opinion in December, following several attacks on Israeli forces and civilians in the West Bank, that led Prime Minister Benjamin Netanyahu to announce that he would legalize thousands of Jewish homes in the area. In his opinion, Mendelblit said he believes a rarely used clause from 1967 can be used to legalize construction on land that was believed to belong to the state when it was allocated to the settlers, even if in fact it didn’t. The clause refers to a “transaction,” although in most cases nobody paid for the land.
The legal mechanism allowing the retroactive authorization of these lands is based on Clause 5 of a military order from 1967 dealing with state property in the West Bank, which says that “a transaction made in good faith between the custodian of government property in the territories and another person, regarding a property the custodian believed at the time to be government property,” is valid, even if the land did not belong to the state.
This means that if the Civil Administration, the custodian of government property, conducted the “transaction” in good faith under certain conditions then it is considered valid – even if it is legally faulty.
According to estimates made by the Justice Ministry and the Civil Administration, a complete implementation of the new interpretation of the military order could be used to regulate the status of 2,000 structures in areas currently deemed to contain illegal structures.
When the Civil Administration team made its discovery in 2016, settlers from Alei Zahav filed a lawsuit against the Harei Zahav contractors, the Defense Ministry and the World Zionist Organization for acquiring land on which construction was illegal. However, in December the state announced that it would try to retroactively legitimize these plots, using the legal interpretation of the clause. The court allowed the state to begin the process, in the meantime freezing discussions of the settlers’ lawsuit.
Before the state can take possession of the Alei Zahav plot, it has to publish its plans for the area, opening it to the filing of objections by Palestinians claiming ownership over it. A legal source involved in this case confirmed these details.
Referring to the so-called “land expropriation law,” which passed in 2017 and allows the state to expropriate Palestinian land on which settlements or outposts were built “in good faith or at the state’s instruction,” Attorney Alaa Mahajna, who represents Palestinians claiming ownership over the disputed area, said: “Even without making use of the vilified expropriation law, the state still finds ways and uses other routes to attain the same goal, giving its legal imprimatur to robbery of land, with residents who are protected under international law.”
The implementation of the “expropriation law” was frozen until the High Court of Justice rules on petitions against it.
This is the second time the state has used Clause 5 to achieve similar goals. In August, the Jerusalem District Court allowed the legalization of the illegal outpost of Mitzpe Kramim. However, Mitzpe Kramim was a singular case and different than Alei Zahav, since in Mitzpe Kramim the authorities were much more deeply involved in its establishment. The Mitzpe Kramim case is currently under review by the Supreme Court, the results of which could also affect the Alei Zahav case.
Although Mitzpe Kramim was an exceptional case, experts in property law in Israel and the West Bank said after the ruling on it that courts can interpret the ruling to allow a mass legalization of homes in the settlements. The use of Clause 5 for Alei Zahav would be the first time the clause is used in its December interpretation, and could set an even stronger precedent for mass legalization.
Throughout the West Bank there are similar examples, of many houses built on land thought mistakenly to be state lands but which later on transpired not to be.
According to a Civil Administration document submitted in the past to the High Court, there are at least 1,048 structures built on West Bank land mistakenly thought to be state lands. According to the same document, 1,122 additional structures in the West Bank were built in breach of planning laws more than 20 years ago.
Maybe the squatters can be financially enticed to leave and return to Jordan, the true Palestine…
@ Cathy: Cathy,No Arab has ever produced such a true and legal deed in an Israeli court. I doubt if any could. It is dubious whether even one durum of land in Judea-Samaria is owned by any Arabs. On the other hand, there is documentary proof that thousand of dumams there are owned by Jews. Something like 100,000 Arabs are illegally squatting on Jewish-owned land in these “territories.”
Edgar is correct in his view of the law. I made a study of this matter some years back, using material from an excellent Israeli site run by a left-leaning but honest Israeli scholar (I think it was Ami Isacharoff. I think the site’s name was zionation or something like that.) I will try to locate the documents somewhere in my files and provide more details about this when I have a little free time.
The Ottoman government only recognized a tiny amount of Palestine as privately owned Arab land. Under the Ottoman code, it was extremely difficult for private individuals to acquire land, unless they paid an extortionate amount for it to the state. I think something like 3 per cent of the land all told was privately owned . And since Jewish philanthropists and organizations were usually more willing to pay extortionate prices for the land than Arabs, it is possible that more than half of the privately owned land was owned by Jews.
The Sultan’s land was all considered “state or waste” land by the British authorities when they seized Palestine from the Turks. They continued to recogize Ottoman law concerning land ownership and most other matters. Over the years, they did recognize more land as Arab owned, either through purchase from the British government, or through documented evidence that the Arab claimant had farmed the land for something like ten years continuously. This loophole existed under Ottoman law, but land grants to Arabs under this clause were more frequent under the British administration than they had been under the Ottoman administration . This was probably because the British administration was more pro-Arab than the Ottoman had been. But it also reflected the increased prosperity of the Arab population due to Jewiish settlement, the draining of malarial swamps by the Jews, etc., which opened up more land for Arab settlement, and enabled more impoverished fellahin to acquire the money needed to buy the tools and seed needed to cultivate land. But despite the British government’s helpfulness to Arabs seeking to acqure land, Arabs still only owned 9 per cent of the country as privately owned land when the mandate ended in 1948.
Israel’s “Supremes” have gone far beyond the British in declaring all land in Judea-Samaria to be privately owned land, unless the state can provide absolute proof that it was state owned. This is impossible, since the British and Ottoman regimes did not keep records on land that was not privately owned and hence not on the tax rolls. And of course the attorney generals, citing their so-called “conscience,” have never been willing to support the state’s claim to any land in Judea-Samaria before the Supreme Court. Jews in Judea-Samaria have been barred by the court from bringing their own land claims before the court. They are not even allowed by the “civil administration” (actually the leftist-controlled military administration) to see the land registers, which they would need to do to contest the phoney Arab land claims. And the “civil administration” has stubbornly refused to recognize Jewish claims to land in the “territories,” even when they are thoroughly documented. They have refused to recognize the Jewish purchase of land from Arab claimants, even when the transactions were videotaped by the Jewish purchasers. And they will not permit Jews to settle on land privately owned by Jews, even when it is their own land, or they have been granted permission by the Jewish owners to live there.
The court recognizes land claims based on Jordanian land registers, as well as undocumented claims that the owners were granted legal title to the land by the Jordanian government. THey have chosen to treat the Jordanians as having been sovereign in Judea-Samaria between 1948 and 1967, and enforce Jordanian law in the territories, even though the Jordanians were only militaty occupiers, and had no legal claim whatsoever to the territories. Even the Arab League, at the time, refused to recognize Jordanian claims to sovereignty.
However, it is interesting that no Arabs have ever produced a single title deed to any parcel of land issued to them or their ancestors, either in an Israeli court, or even on the militantly anti-Zionist “Bt’selem and Peace Now web sites, which argue stridently that all land in Judea-Samaria is “privately owned” by Arabs. But amazingly, their sites have failed to reproduce on their site a single title deed to a single dunam of land issued to an Arab by the Jordanian government. I doubt if even the Jordanian government ever issed such title deeds, although they would have no legal basis even if they had given them to Arabs.
The Israeli Supreme Court, Attorney General’s Office, and “civil administration” are far more virulently antisemitic than even the British and Ottoman authorities were. Their rule over Judea and Samaria has been completely illegal and lawless. Yet it has been absolute.
@ Cathy:
There’s NO WAY they can show a “true legal deed” because of the following. Until the end of WW1 the whole Land was personally owned by the Ottoman Sultan.
It then came under the TRUSTEESHIP of Britain, mandated with the creating of a Jewish State .. (although they said “National Home.. all those involved have averred that they meant an eventual Jewish State) who would oversee and help to the return of the Jewish People etc. you know all that.
After the Mandate expired it was aggressively invaded by Arab States and Jordan kept YESHA.
What I’m getting at is that the only land in Israel that was “private land” were about 5 parcels sold to prominent Arab families who never lived there, but in Damascus and Beirut -even further afield. From them the returning Jews BOUGHT land. Several Jewish philanthropists earlier had also bought tracts from the Ottomans. BUT the Arabs in Palestine then, were a thin smattering of tiny shopkeepers, labourers and the vast majority being Fellahin, living in mud huts and dying like flies.
The Mandatory had no legal power to sell land to anyone. Jordan had no legal power to do so ether. Even before the War of Independence there was a thriving business in Palestine-later in YESHA- of forging Title Deeds, artificially aging them and so on. None of them was legal of course.. And…to this day, if it were not for the cursed Supreme Court, accepting, -proof unseen- their “ownership” claims, there would be NO Arabs with any title to what really is Jewish State land.
I’m speaking rather broadly and very briefly on what is an immense quagmire of about 3-4-5 different legal systems, with contradicting sections. Others on the site would have a more detailed idea of the situation. Even Jews in Israel only lease the land from the State. All the land automatically became State Land after 1948
I myself had the experience of having brought an Arab acquaintance to Akko Land Office, and witnessing the Israeli official showing that his “ancient” title deeds were a pure fake. He admitted it on the way home, in my car.
{{This was around the time when the Govt. was encouraging groups to form hilltop settlements, because they’d just discovered that Arabs had been infiltrating onto them at an alarming rate.}}
@ Cathy:
kathy ownership for the sodomites would have to be on record prior to 1922. any purchase recorded by brits or hasimits is illigall
@ Cathy:
There is a whole methodology in the legislation that was passed last year. It is an eminent domain type of situation. If they can prove ownership they would be compensated.
So what happens when Palestinians say they are the owner? What if they show the court a true and legal deed to the property? Will it be tied up in court for years? How will Arabs be compensated, so they don’t go to the media with proof that Jews stole their land?
Another empty promise for the elections. Don’t trust the government on this!