AG green-lights legalization of 2,000 settler homes built on Palestinian land

After PM says he’ll regulate thousands of illegal Israeli homes built in ‘good faith,’ Avichai Mandeliblit signs off on legal tactic that allows approval

Jacob Magid is The Times of Israel's US bureau chief

View of the Givat Assaf outpost, located near the Jewish settlement of Beit El in the West Bank, June 05, 2012. (photo credit: Noam Moskowitz/FLASH90)
View of the Givat Assaf outpost, located near the Jewish settlement of Beit El in the West Bank, June 05, 2012. (photo credit: Noam Moskowitz/FLASH90)

Attorney General Avichai Mandelblit on Thursday officially approved the use of a legal tactic that will allow for the de-facto legalization of roughly 2,000 illegally built Israeli homes throughout the West Bank.

The authorization followed an earlier announcement by Prime Minister Benjamin Netanyahu’s office outlining a series of measures he would take in response to a wave of terror attacks, which included the regulation of thousands of settlement homes.

“The prime minister decided this evening to legalize the status of thousands of homes in communities throughout Judea and Samaria (West Bank), which were built in good faith and whose legal status has not been regulated until now,” the Prime Minister Office’s statement said.

Manelblit’s approval — which came at the behest of Justice Minister Ayelet Shaked — provides the legal grounds for such a far-reaching move.

Attorney General Avichai Mandelblit attends a State Control Committee meeting in the Knesset on December 3, 2018. (Miriam Alster/Flash90)

The legal mechanism the attorney general green-lighted is known as “market regulation” and relies on the notion that wildcat Israeli homes built on private Palestinian land were done so in good faith.

“A transaction made in good faith between the Custodian of Government Property in the Territories and any other person regarding property that the Custodian thought at the time of the transaction was government property shall be valid, even if the land in question (is later found to) not belong to the State,” reads the 1967 Order Concerning Government Property in Judea and Samaria.

The tactic served as the basis of the Jerusalem District Court’s August ruling on the legalization of the central West Bank outpost of Mitzpe Kramim. It that case, however, it was used as a defense against a Palestinian petition to the High Court seeking to demolish the outpost. Now it is being used in an “active” manner to legalize homes where no High Court petitions are pending against them.

In his legal opinion on Thursday, Mandelblit argued that the government’s issuing to settlers of (what it believes to be) state land is a “transaction” it of itself, even though the Israelis were often not paying for the land that they received.

Extending that logic, the attorney general concluded that roughly 2,000 homes that were initially believed to have been built on state land, but were later determined to have been constructed on private Palestinian property and subsequently deemed illegal, can now be regulated.

Mandelblit wrote that the legalization of the 2,000 homes will now only require a cabinet decision in order to move forward.

A general view shows the Israeli settlement of Mitzpe Kramim in the West Bank, on August 29, 2018. (AFP / THOMAS COEX)

“Government action is now required for the examination and approval of the field cells in which administrative evidence exists for the application of Section 5 (Market Regulation),” he wrote.

According to an official in the Justice Ministry, the legal opinion was prepared long ago, but Netanyahu had told the ministry to sit on it due to fears of international outcry.

However, following this week’s spate of terror attacks in the West Bank, the prime minister “suddenly decided to move forward with the idea and take credit for it in the process,” the official said.

In addition to the legalization of thousands of homes built in “good faith,” Netanyahu’s office said he would promote the construction of 82 new homes in the Ofra settlement, near the site of a terror attack on Sunday. The shooting attack left seven injured, one of them a 21-year-old woman who was forced to deliver her baby boy in an emergency C-section. The infant died four days later at the Shaare Zedek Medical Center.

Prime Minister Benjamin Netanyahu speaks with Israeli soldiers during his visit at the Northern Command base in Tzfat, December 11, 2018. (Basel Awidat/Flash90)

Netanyahu had also said he would promote the establishment of industrial zones in the Beitar Illit and Avnei Hefetz settlements.

“They are thinking of uprooting us from our land, but they will not succeed,” he said in a PMO statement, following a Thursday shooting terror attack that left two IDF soldiers — Yovel Mor Yosef and Yosef Cohen — dead near the Givat Assaf outpost. Another soldier was critically injured in the attack and a civilian woman was seriously hurt.

Though the outcome is the same, the so-called “market regulation” defense differs from the recently passed outpost legalization law as it allows the court to retroactively regulate an outpost, even if there is no determined owner.

Under the so-called Regulation Law, which has been stuck in High Court proceedings since being passed in February 2017, the state may expropriate land with a determined owner retroactively where settlers built in good faith or with government support. The Palestinian owner is then compensated for the land.

While similar to “market regulation,” the implications of the Regulation Law are far more sweeping and would allow for the legalization of what some experts predict would be 4,000 homes. The legislation also details that any state support creates “good faith,” while in market regulation, good faith can only be established in the real estate transaction itself. In the Mitzpe Kramim ruling, the court deemed the Settlement Division’s granting of the land to the residents to be equivalent to a real estate transaction.

Responding to the series of moves made by Netanyahu for the benefit of the settlement movement, the Peace Now settlement watchdog blasted the prime minister in a fiery statement.

“After a painful day that consisted of a number of attacks, instead of showing responsibility and trying to calm the situation, the prime minister, as usual, is working to fan the flames. The series of steps he has proposed are dangerous. Not only will they not prevent the next murder, but they will only distance us from the solution that could one day stop the cycle of bloodshed,” the left-wing NGO said.

The Yesha settlement umbrella council responded to Netanyahu’s measures with cautious optimism.

“After the positive statements in the prime minister’s announcement, we also expect a quick and decisive execution of those measures. Things have to be carried out on the ground, not just in statements,” the right-wing group said.

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