Court okays legalization of West Bank outpost, possibly paving way for more

In precedent setting decision, judges apply ‘market regulation’ tactic to regulate Mitzpe Kramim, where residents were deemed to have built illegally, but in good faith

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

View of the Jewish outpost of Mitzpe Kramim, June 5, 2012. (photo credit: Noam Moskowitz/FLASH90)
View of the Jewish outpost of Mitzpe Kramim, June 5, 2012. (photo credit: Noam Moskowitz/FLASH90)

The Jerusalem District Court green-lighted the legalization of the central West Bank outpost of Mitzpe Kramim in a ruling published Tuesday, using an unprecedented legal tactic that could pave the way for regulating dozens of other illegal hilltop communities beyond the Green Line.

Using a policy known as “market regulation,” Judge Arnon Darel ruled that the outpost built without the necessary permits need not be razed because the settlers erected the community “in good faith” and have rights to the property.

Mitzpe Kramim was established in 1999 adjacent to the Kochav Hashachar settlement on land granted to the settlers by the semi-state Settlement Division of the World Zionist organization. Shortly after, the Civil Administration — the Defense Ministry body that authorizes West Bank construction — determined that the state did not have rights to the land that the Settlement Division dished out.

In 2011, a group of Palestinians from the village of Deir Jarir claiming ownership over the land on which the outpost sits submitted a petition to the High Court of Justice to have the community of some 40 families removed.

In order to delay the process, the residents — represented by Harel Arnon, the same attorney defending legislation seeking to legalize West Bank outposts in the High Court on behalf of the government — issued their own petition to the Jerusalem District Court, claiming the Defense Ministry had been responsible for settling them on that particular central West Bank hilltop after they their original site had been deemed similarly illegal.

Darel accepted the residents’ claims Tuesday, arguing the state’s tacit support in establishing the outpost — despite being on land not belonging to the state — represented good faith on the settlers part.

Though the outcome is the same, the so-called market regulation defense differs from the recently passed outpost legalization law, because it allows the court to green light an outpost to be retroactively permitted 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 the real estate transaction itself. In the Mitzpe Kramim ruling, the court deemed the Settlement Division’s granting of the land to the residents as an equivalent of a real estate transaction.

To be clear, the market regulation ruling did not relate to issues of ownership of the property. With the Jerusalem District Court decision now final, the High Court will now be able to move forward with its ruling on the Deir Jarir residents claims to the land. If their petition is rejected, the state will be able to move forward with legalizing Mitzpe Kramim.

View of the Givat Asaf outpost, near the Beit El settlement in the West Bank. (Miriam Alster/ Flash 90)

The ruling marked the first time the so-called “market regulation” tactic is being recommended for use to legalize outposts in a court ruling. While the measure was recommended in a legal opinion by Attorney General Avichai Mandelblit earlier this year, it has yet to be implemented.

With Tuesday’s ruling, dozens of other outposts will have the opportunity to be legalized so long as the owners prove they did not knowingly build illicitly.

The Yesha settlement umbrella council welcomed the court’s “important and joyous” decision “after years of torture.”

“This is good news for the settlement movement… and also allows us to begin the legalization process at other sites as well.”

The Peace Now settlement watchdog blasted the ruling, saying “the court chose to align itself with the values of the annexation and dispossession project of the Israeli government.”

Asserting that the land on which Mitzpe Kramim sits belongs to Palestinians registered in the Civil Administration’s land registry, the left-wing NGO said the establishment of the outpost was done “with anything but good faith.”

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