High Court walks back position allowing seizing Palestinian land for settler use

Chief justice says 2017 ruling by colleague Salim Joubran contradicts previous legal precedents on matters of West Bank land disputes

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

Supreme Court Chief Justice Esther Hayut at a hearing at the Supreme Court in Jerusalem on January 14, 2018. (Yonatan Sindel/Flash90)
Supreme Court Chief Justice Esther Hayut at a hearing at the Supreme Court in Jerusalem on January 14, 2018. (Yonatan Sindel/Flash90)

Chief Justice Esther Hayut ruled Wednesday that the state cannot rely on a precedent set by one of her colleagues last year green-lighting the seizure of private Palestinian land solely for use by Israeli settlers.

Hayut was responding to a petition from the Yesh Din rights group, which called for an additional hearing on the 2017 ruling by Justice Salim Joubran in which he wrote that “the Israeli residents of the area (West Bank)… are also among the civilian population in the area,” and that therefore the state “is obligated to act for their welfare… even by violating the property rights” of the original Palestinian land owners.

The remarks from Joubran came in a ruling he gave on a petition by residents of the illegal Amona outpost who sought to move their community to an adjacent hilltop. While he ultimately rejected their petition, he did recognize the state’s authority “to act in the civilian interests of the Israeli residents of Judea and Samaria.”

Hayut on Wednesday rejected Yesh Din’s request to hold an additional hearing on the apparent precedent set by Joubran, arguing that the specific case was no longer relevant. The residents of the razed outpost ended up moving into a new settlement — Amichai — far from the one originally proposed.

However, in denying Yesh Din’s petition, Hayut still commented on Joubran’s controversial, unprecedented ruling. “It appears that the ruling contradicts previous laws in this context, and it contains both novelty and difficulty,” she wrote.

Moreover, Hayut stated that the section of Joubran’s ruling now in question did not constitute “a binding law,” but was rather a “mere passing statement,” and future petitions regarding the seizure of vacant private Palestinian land for the exclusive use of settlers would have to take that into account.

Supreme Court justice Salim Joubran, head of the Central election Committee, reacts at a committee discussion on disqualifying MK Hanin Zoabi, on February 12, 2015 (photo credit: Hadas Parush/FLASH90)

Wednesday’s ruling appears to throw a wrench in the works of several ministry bodies that have begun efforts to utilize Joubran’s remarks to legalize dozens of settler outposts throughout the West Bank.

Attorney General Avichai Mandelblit used the decision in a legal opinion of his own in November 2017, in which he authorized the expropriation of private Palestinian land for the paving of an access road to the Haresha outpost.

The employment of Mandelblit’s decision would allow the community of 50 families residents to move forward with legalizing the entire outpost, thus adding the community to the roughly 130 settlements already recognized by the government.

However, the attorney general will now be forced to reconcile Hayut’s ruling if Haresha moves forward with plans to pave the access road.

Joubran’s ruling was also heavily relied upon in the government-issued Zandberg Report.

Prime Minister Benjamin Netanyahu (L) and then-cabinet secretary Avichai Mandelblit at the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem on July 5, 2015. (Emil Salman/Pool/Flash90)

Published earlier this month by a committee of legal experts from the ministries of defense, justice and agriculture along with representatives from the Prime Minister’s Office, the report provides tools that could be used to legalize thousands of wildcat settlement homes.

Moreover, the Joubran ruling was expected to be utilized by the state in its defense of the so-called Regulation Law, which is slated to be heard before the High Court next week following petitions against its legality.

The legislation would allow the Israeli government to expropriate private Palestinian land where illegal outpost homes were built ex post facto, provided that the outposts were built in good faith or had government support.

But even before it was passed in February 2017, Mandelblit announced that he would not support the legislation, saying it ignored the rights of Palestinian residents of the West Bank. It has since been frozen by the High Court pending a final ruling on the matter.

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