Attorney general okays seizure of private Palestinian land for outpost road

Using precedent set in recent High Court decision, Avichai Mandelblit views residents of Horesha as protected population deserving of public benefits

Jacob Magid is The Times of Israel's US correspondent based in New York

Illustrative: A road passing through the South Hebron Hills in the West Bank. (Hadas Parush/Flash90)
Illustrative: A road passing through the South Hebron Hills in the West Bank. (Hadas Parush/Flash90)

Attorney General Avichai Mandelblit approved the expropriation of private Palestinian land for the building of an access road to an illegal West Bank outpost, in an unprecedented legal opinion on Wednesday.

Established without government approval in 1995, the Haresha outpost, in the Binyamin region near the settlement of Talmon, had been ordered to cease construction in 2005 following a High Court of Justice petition by the Peace Now settlement watchdog.

But following a legal decision last month made by now-retired Supreme Court justice Salim Joubran, Justice Minister Ayelet Shaked asked that the state’s opinion on Haresha be updated.

Responding to a petition regarding the legality of establishing a temporary living area for the evacuees of the Amona outpost while they wait for the new Amichai settlement to be built for them, Joubran ruled that abandoned private Palestinian land could be seized for the grounds as long as the original owners are compensated.

Attorney General Avichai Mandelblit speaks during the farewell ceremony for Supreme Court President Miriam Naor in Jerusalem on October 26, 2017. (Yonatan Sindel/Flash90)

Under the military’s jurisdiction, Joubran described settlers as a protected population that the army is expected to care for through the paving of roads, for example. The unique status of the Amona evacuees superseded the legal problems that arise from the seizure of private Palestinian land, Joubran ruled.

Beyond objecting to the broader illegality of the land seizure, the Palestinians have argued that the only reason that the land is considered “abandoned” is that they are prevented from accessing it.

In his Wednesday legal opinion, Mandelblit wrote that given Jabroun’s ruling, “there is no longer a legal impediment in advancing the recommendation regarding the construction of the access road to Haresha through expropriation for the [sake of the] needs of the public.”

Speaking with The Times of Israel, Mandelblit’s adviser Gil Limon said that very specific circumstances allowed for the seizure, suggesting that the implications of Wednesday’s decision might not be as broad as the settlers are hoping.

However, the Peace Now settlement watchdog said that the state is permitting “the seizure of territories it does not have sovereignty over — those which belong to a Palestinian population that does not have civil rights and the right to vote — all for the exclusive purpose of an Israeli population that has rights.”

Supreme Court Justice Salim Joubran, December 16, 2014. (Isaac Harari/Flash90)

“There is no other word for this than apartheid. The Netanyahu-Shaked government continues to lead the annexation of the territories, hastening the reality of a single, bi-national state based on a regime of discrimination and oppression,” the NGO concluded. Peace Now is expected to petition the High Court against the state’s new policy.

Justice Minister Ayelet Shaked welcomed Mandelblit’s recommendation in a Wednesday statement. “The decision is another step toward the realization of the rights of hundreds of thousands of residents in Judea and Samaria,” she said, referring to the West Bank by its biblical names.

“The removal of judicial barriers and the construction of legal ways to create a normal life for the hundreds of thousands of residents in Judea and Samaria is the direction we should aspire toward,” said Binyamin Regional Council chairman Avi Roeh. He thanked Shaked for her efforts.

The decision to authorize the seizure of land for the access road to the community of 50 families will allow the Haresha residents to move forward with legalizing the entire outpost, thus adding the community to the roughly 130 settlements already recognized by the government.

The ruling also calls into question the necessity of the so-called Regulation Law. The legislation allows the Israeli government to expropriate private Palestinian land where illegal outpost homes have been built ex post facto, provided that the outposts were built in good faith or had government support.

While passed in February, the law has been frozen by the High Court pending a ruling on the petitions that have been filed against it by Palestinian landowners and Israeli rights groups.

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