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In reversal, High Court rules Mitzpe Kramim outpost can remain on Palestinian land

Court finds land was allocated in ‘good faith’ to settlers, who did not know that it belonged to residents of nearby village; legal tactic could be applied to thousands more homes

View of the Jewish outpost of Mitzpe Kramim, June 5, 2012. (Noam Moskowitz/Flash90)
View of the Jewish outpost of Mitzpe Kramim, June 5, 2012. (Noam Moskowitz/Flash90)

The High Court of Justice ruled Wednesday that the Mitzpe Kramim settlement outpost built on private Palestinian land can remain in place, backtracking two years after ordering the state to remove settlers living on the hilltop.

The court said that the wildcat outpost did not need to be evacuated because the land was allocated by the government to the settlers in good faith.

The decision stipulates that compensation be provided to the registered land owners or those who can prove their ownership of the land.

The precedent-setting ruling, which overturns a High Court decision from 2020 made with a smaller panel of justices, could theoretically pave the way for the legalization of thousands more homes facing legal challenges due to Palestinian claims on the land.

Right-wing politicians and organizations welcomed the ruling, including opposition leader and Likud leader MK Benjamin Netanyahu, although some argued that the ruling did not go far enough in legalizing settlements built on private Palestinian property.

Netanyahu warmly praised the ruling and the settlers of Mitzpe Kramim, adding that he would formally legalize the settlement and work towards the legalization and success of “settlement outposts and settlements all over the country” if he is able to establish a new right-wing government after the coming elections.

Head of opposition Benjamin Netanyahu seen during an inauguration ceremony of a new neighborhood in Beit El, in the West Bank, July 12, 2022. (Sraya Diamant/Flash90)

Peace Now decried the ruling, saying it “tramples on the little protection that remained for Palestinian property” in the West Bank and said it would allow for the retroactive legalization of “settler land seizures.”

In its 2020 ruling on Mitzpe Kramim, the High Court ruled that a legal tool endorsed by then-attorney general Avichai Mandelblit known as “market regulation” could in theory be used to protect settlement and outpost homes from being demolished.

The “market regulation” principle grants retroactive legalization to settlement homes built on Palestinian land so long as they were constructed in “good faith.”

But the two-to-one decision established a relatively high bar for “good faith” and ruled that Mitzpe Kramim did not reach that bar, and should therefore be demolished.

In an appeal to an expanded seven-justice panel of the High Court, legal representatives for Mitzpe Kramim argued that they had indeed received the land in 1999 in good faith from the Settlement Division of the World Zionist Organization, a quasi-governmental group that administers Israeli land in the West Bank.

At the time, the government of former prime minister Ehud Barak came to an arrangement with the Yesha Settlement Council for the evacuation and demolition of some illegal settlement outposts, including the original site of Mitzpe Kramim.

Ehud Barak, Head of the Israel Democratic Party seen during a visit in Ariel, in the West Bank, July 16, 2019. (Roy Alima/Flash90)

The government, through the Defense Ministry’s Custodian of Government Property in the Territories, allocated a new plot of land for the outpost northeast of Ramallah, apparently unaware that there was a claim to the land by the nearby Palestinian village of Deir Jarir.

In 2011, a group of Palestinians from 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.

Mitzpe Kramim residents then 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 their original site had been deemed illegal.

In August 2018, the district court accepted the petition but did not rule on the issue of property ownership. Two years later, the court ruled against Mitzpe Kramim, but three months later agreed to re-hear the case with an expanded bench.

In a four-to-three decision, the High Court on Wednesday ruled in favor of Mitzpe Kramim and allowed the “market regulation” principle to be applied.

Justice Noam Sohlberg wrote in his opinion in favor of applying the “market regulation” to the outpost that he did not believe “the interpretative standard that we must adopt, is required to be narrow and tight.”

He added that “both parties to these agreements believed in an honest and true belief — and most importantly, in good faith — that this area is part of the area seized by military seizure,” which was allocated for the settlement by the WZO.

This being the case, the principle of market regulation should be applied, wrote Sohlberg.

View of the Jewish of Mitzpe Kramim outpost in the West Bank on August 29, 2018. (Yonatan Sindel/Flash90)

Since the ruling lowers the bar of “good faith” both settlement organizations and groups opposed to the settlements now believe that the market regulation principle could be more broadly applied in the future to similar cases in the West Bank.

The Yesha Council umbrella organization, representing local authorities in the West Bank settlements, welcomed the ruling saying the court’s decision upheld what it had argued since 2011 and strongly criticized what it said was “years of judicial torture, years of left-wing organizations wasting the state’s resources.”

MK Simcha Rothman of the far-right Religious Zionism party slammed the ruling, however, saying that although it provided a solution for Mitzpe Kramim it left “thousands of homes across Judea and Samaria [the West Bank] without a solution.”

He added that “only root treatment of the justice system” could change this situation.

Peace Now condemned the decision for removing legal protections from Palestinians with valid property rights claims.

“The decision will enable retrospective legalization of many cases in which settlers seized control of private Palestinian lands. It’s unfortunate that the criminality and thievery received a tailwind today from none other than the High Court of Justice,” the organization said.

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