Yotam Berger writes in Haaretz, Feb 10, 2019
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.
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