Filed March 2019
Yesh Din and the Association for Civil Rights in Israel (ACRI) have filed a motion with the Supreme Court sitting as the Court of Appeals to join proceedings in an appeal filed against the decision of the Tel Aviv District Court with respect to the unauthorized outpost of Mitzpe Kramim. (The appeal was filed by three landowners represented by Adv. Husam Yunes. Yesh Din and ACRI are not party to the appeal or previous proceedings in the case).
The outpost of Mitzpe Kramim was built on privately owned Palestinian land alleged to have been seized by military order. In reality, however, the outpost is located outside the area covered in the seizure order. In a judgment delivered in August 2018, the District Court ruled that while the outpost was, in fact, located outside the area indicated in the seizure order issued in the 1970s, where the settlement of Kochav Hashachar was ultimately built, the transaction in which the Civil Administration (the Supervisor of Governmental and Abandoned Property) allocated the land on which the outpost was built to the Settlement Division could be retroactively approved via the principles of market ouvert.
Market ouvert (or marché ouvert) is a legal arrangement (used in Israel as well) that provides protection to parties who had purchased land based on erroneous records, or in cases land was sold by a party other than the owners. The Order regarding Governmental Property stipulates that market ouvert applies in the case of parties who had entered into transactions with the Supervisor of Governmental and Abandoned Property in good faith. In this case, the application of market ouvert means the right to the land would be expropriated from its Palestinian owners and handed over to the settlers of the unauthorized outpost of Mitzpe Kramim.
According to the judgment, though the land on which the outpost was built had never been state land, (government property) but rather privately owned land erroneously believed to have been temporarily seized for imperative, urgent military needs, Israeli state authorities treated it as state land, allocating it to the settlers of Mitzpe Kramim. The court ruled the Palestinian landowners had no right to take legal action to have the invaders removed from their land.
While this judgment addresses the status of land inside the West Bank, which is under military occupation, the court refrained from addressing the unique status of the area and the rights of the landowners juxtaposed against the obligations of the Israeli authorities. As a matter of fact, the judgment says absolutely nothing (!) about the provisions of international law applicable in the territory and ignores the prolific jurisprudence of the Supreme Court which has laid down the law on what can and cannot be done with respect to privately owned land in the occupied territory.
The motion to join proceedings as amicus curiae in the appeal arises from the importance of the District Court’s judgment, which held that impingements on the private property of Palestinians, protected persons in the occupied territory, are permissible even when not undertaken for distinct, imperative military needs. This ruling defies the provisions of both international and domestic law, as well as previous rulings by the Supreme Court. The judgment has far-reaching ramifications for the application of the market ouvert principle, as it paves the way for active, deliberate use of this principle in thousands of other cases.
Given Yesh Din and ACRI’s experience, the organizations asked the Supreme Court to join the appeal as amicus curiae representing the public interest of protecting private property under occupation. In the brief submitted to the court, the organizations noted the judgment delivered by the District Court has, without legal basis, produced an entirely new exception to the prohibition on interference with the property of the protected population of the occupied territory, allowing such interference for reasons unrelated to imperative security needs.
The organizations further noted that an approach whereby the quasi-proprietary rights of Israelis in respect of certain land are protected by basic laws, while the rights of the Palestinian landowners in the same land are unprotected could not be accepted. Such an approach creates a regime of constitutional apartheid.
After a decade of legal proceedings, on August 27, 2020 the HCJ handed down its ruling regarding the unauthorized outpost of Mitzpe Kramim, built on Deir Jarir and Kafr Malik land. The judgment, delivered by Chief Justice Esther Hayut and her deputy, Justice Hanan Melcer (Justice Neil Hendel held the minority opinion) accepted the petition and the appeal submitted by the Palestinian landowners, which Yesh Din and ACRI joined as an amicus curiae.
The HCJ’s judgement overturned the Tel Aviv District Court’s ruling and orders the entire outpost to be evacuated from private Palestinian land within three years. However, according to the judgement, evacuating the outpost requires “a worthy and appropriate alternative, by way of allocating alternative property on state land and establishing buildings or transferring the existing structures to the alternative site”. In other words, evacuating the outpost from the private Palestinian land it is currently on is contingent upon establishing it elsewhere. Based on previous experience, this could lead to the State working to establish a new settlement for residents of Mitzpe Kramim.
However, the judgement’s importance is its emphasis on applying international law to territories subject to belligerent occupation, meaning occupied territory. The judgement establishes that “the principle of market ouvert must be limited and not expanded” because applying it to the case of Mitzpeh Kramim contradicts the military commander’s duty as stipulated by international humanitarian law to “protect the property of the occupied population”. This is due to the nature of the relationship between Israelis and Palestinians in the occupied territory, in which Israelis benefit exclusively from the principle of market ouvert at the expense of local Palestinian residents’ right to property. State land is almost exclusively allocated to Israelis, and the owners of private land are mostly Palestinians. Therefore, only Israelis can benefit from applying the principle of market overt, while this principle infringes on the rights of the Palestinians.
The Court ostensibly accepted Yesh Din and ACRI’s position regarding the duties incumbent upon Israeli authorities, specifically the duty to protect the occupied population. The State has attempted to deploy the principle of market ouvert in order to retroactively authorize outposts, circumventing the “Land Regulation Law, which was repealed following the HCJ’s ruling. Yet the High Court established that contrary to the underlying premise of market ouvert, the Supervisor of Governmental and Abandoned Property…failed the test of bona fide because he blatantly ignored the numerous warning signs he encountered during many years”. The judgement also established that land seized for military needs is not public land (state land), and therefore the Supervisor is not authorized to allocate such land for building Israeli settlements.
This rare judgement establishes that land theft throughout the West Bank is not akin to a neighbor dispute between two parties who have equal rights. Therefore, applying a flexible and dynamic interpretation of the law and of the facts is unacceptable.
Two weeks after the Supreme Court ruled that Mizpe Kramim must be evacuated, the ministry of defense filed a motion for a further hearing on principled matters referred to by the ruling. The motion was filed with the approval of Attorney General Avichai Mandelblit and asks the Court to address the requisite measure of good faith in said circumstances, and whether land seized by the Israeli military may be considered government property. On November 24, 2020, Justice Yitzhak Amit approved a further hearing before an expanded panel of justices to debate the legal criteria for examining the principle of good faith in accordance with section 5 of the Order regarding Governmental Property (which constitutes a market ouvert of sorts) and practical application of this section and the other conditions it stipulates in the case of Mitzpe Kramim.
On June 22, 2021, Yesh Din and ACRI filed a motion to again join proceedings as amicus curiae in the further hearing. The motion argued that Israeli authorities consistently refrain from addressing the occupied territory’s unique status and the rights of Palestinian landowners pursuant to the law in force there. This is reflected by Israeli authorities’ disregard for international law, evident both in the State’s position during proceedings and its actions.
Yesh Din and ACRI argued that applying the principle of market ouvert and introducing legal doctrines absent from the legal framework that applies to the West Bank is possible only if they are compatible with the tenets of international law, and that in the case of Mitzpe Kramim, they were applied incongruently. Therefore, if the Court authorizes use of section 5 as a market ouvert of sorts, the Supervisor’s actions must be examined as objectively and rigorously as possible.
The State’s position seeks to create ex nihilo an exception to the rule prohibiting the occupying force from harming private property in the occupied territory (international law notes the exceptions to this rule). It is designed to relax several restrictions stipulated by section 5 of the Order regarding Governmental Property and provide de facto immunity for Israeli authorities’ actions. This position could lead to severe harm to the protected population’s property and violation of the duties to protect these rights. Yesh Din and ACRI’s motion argues that “Israeli authorities seek to establish negligence as the administrative standard in a manner that is designed to systematically and extensively harm the property of the protected population for the exclusive benefit of the Israeli population in the occupied territory.”
On July 27, 2022 the Supreme Court Justices in an expanded panel overturned the decision to evacuate the outpost Mitzpe Kramim and held that the outpost could be retroactively authorized by applying Section 5 of the Order regarding Government Property (market ouvert, or marché ouvert). This judgement paves the way to sweeping retroactive authorization of thousands of structures built illegally by Israelis throughout the West Bank by creating a mechanism for disenfranchising Palestinians of rights to their land and transferring rights to Israeli settlers who invaded these lands illegally. In this sense, the principle of market ouvert is a means for circumventing the Expropriation Law (known also as the Regularization Law), which was struck down by the High Court of Justice, and poses a significant threat to the fate of much land throughout the West Bank where structures and outposts were built in violation of Israeli law.
The judgement ignored the provisions of international law that apply to the occupied territory, and in particular the occupying force’s duty to protect the private property of Palestinian residents, who are considered protected persons. The Supreme Court Justices’ majority opinion clearly favored the interests of the Mitzpe Kramim settlers who, as Israeli settlers in the West Bank, are overprivileged. The Court did so instead of protecting the rights of Palestinian landowners who, as Palestinians under Israeli occupation, suffer from systemic and systematic discrimination and whose political rights have been suspended.