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.