High Court of Justice orders eviction of settler from Kedumim who invaded private Palestinian land belonging to residents of the village of Qadum

Bench headed by outgoing Supreme Court President Beinisch issues landmark ruling that ten years of "cultivation and possession" of land do not bestow land ownership if entrance to the land was illegal. This ruling has tremendous implications for hundreds of thousands of dunams of West Bank land occupied by Israelis claiming ownership due to ten years of active cultivation.

Tuesday, March 20, 2012
The HCJ published today (Tuesday, March 20) a decision in which it issued an absolute order for the Civil Administration to execute an eviction order issued against a settler who invaded private Palestinian land near the settlement of Kedumim. In the decision, Justices Beinisch, Naor and Arbel ruled that the trespasser, Michael Lesens, must evacuate the land by April 20 and pay NIS 20,000 in expenses to the Palestinian land owners and another NIS 10,000 to the Civil Administration.

The decision was made after the Palestinian land owners petitioned the HCJ, with the help of lawyers Michael Sfard and Shlomy Zacharia from the legal team of the human rights organization Yesh Din, demanding that the army restore their access to their land, on which Michael Lesens had trespassed and performed agricultural work (HCJ 5439/09). The Civil Administration had issued a disruptive use order against Lesens, which is the equivalent of an eviction order, but that order had not been realized since Lesens appealed to the Civil Administration's Appeals Committee claiming that he was entitled to be considered the land owner by virtue of having cultivated the land for over ten years.

In her ruling, retired President Beinisch found that Lesens had not proved that he had cultivated the land for more than a decade, and, in any case, that it was also necessary to prove that possession of the land had not been done illegally: "Lesens's testimony indicates that he was cultivating the land on the instructions of the Kedumim Local Council, even though he knew it did not own the land… This indicates that he knew that neither he nor the council had rights to the land at the time he entered it and began to cultivate it. Therefore, it was he who revealed that his possession of the land was not equitable."

This ruling has very broad implications and bears on the status of hundreds of thousands of dunams of land possessed and cultivated by settlers in the West Bank. The Court established, for the first time, that it is necessary to prove that the possession of the land did not violate the rules of equity, such as illegal trespassing, for instance.

President Beinisch accepted the petitioners' arguments that Lesens had used legal proceedings in order to postpone his eviction from the land and strongly criticized his behavior: "This behavior… caused severe damage to law enforcement efforts in the area… The picture that emerges from his behavior…to the authorities and the courts, raises the suspicion that the various motions for extension, the petition to this Court and even the claim to the Magistrate's Court did not serve Respondent No. 3 as a tool to clarify the truth and decide in the dispute between him and the head of the Civil Administration or the Petitioners, but as a tool to undermine the administrative enforcement action and put a spoke in the wheels of the authority."

Attorney Michael Sfard, Yesh Din's legal advisor, said: "This decision puts the jungle of the seizure of Palestinian land in the West Bank in order. We only hope the decision is carried out because these days, shamefully, that is not at all clear."

* The full decision - at the HCJ website (link to PDF - Hebrew)

Background

In May 2007, Palestinian land owners from the village of Qadum noticed for the first time that Michael Lesens, a resident of the settlement of Kedumim, had invaded their land. The trespassing included erecting a fence, planting hundreds of saplings, laying drip irrigation pipes and installing irrigation installations. From that moment the Palestinian landowners were almost completely prevented from accessing their land.

In August 2007 the Civil Administration issued an order for Lesens and the Kedumim Local Council to stop using the land and evacuate it. But Lesens went to the military committee of appeals and asked it to cancel the order. On March 10 2009 two of the three judges on the committee recommended the Civil Administration cancel the order.

A worrisome picture emerged during the hearing on Lesens's appeal: It emerged that Lesens had invaded the land on behalf of the Kedumim Local Council, with its backing, encouragement and planning, as part of a complete, orchestrated strategy of land theft, whose purpose was to increase the settlement's municipal area.

Subsequently, on June 23, 2009, the land owners, with the help of Yesh Din, petitioned the HCJ, asking it to order the cancellation of the military appeals committee's decision and return to them the land onto which Lesens had trespassed with the encouragement and support of the Kedumim Local Council. In its response to the petition, the State agreed with the Petitioners' interpretation of the military order, contrary to the decision of the appeals committee.

On January 19, 2011, the HCJ issued an interim order to enforce the eviction order issued by the Civil Administration. But shortly thereafter, Lesens submitted a counter-petition to the HCJ, as well as a counter-claim to the Jerusalem Magistrate's Court, which caused a delay in the realization of the eviction order. Today, March 20, 2012, the HCJ ruled in favor of the Petitioners and the State, and issued an absolute order to evacuate the land by April 20, 2012 and return it to its Palestinian owners. If Lesens does not evacuate the land, the court order instructs the Civil Administration to evict him by force no later than May 10, 2012.
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