High Court: Obeying the Law Not Enough to Establish Jewish Ownership in Judea and Samaria

By: Solomon Burke

Published: March 22nd, 2012
Latest update: March 26th, 2012

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Retired Chief Justice Dorit Beinisch continues to preside over her unfisnished cases
Photo Credit: Miriam Alster/Flash90

The Israeli High Court of Justice ruled late Tuesday night that a Jewish inhabitant of a tract of land near the community of Kedumim in Samaria can no longer use the existing legal framework as the basis for his ownership of the land.

The High Court accepted the petition brought by three Palestinians – which was filed by Yesh Din (an anti-settlement non-profit organization) and later joined by the State Prosecutor’s Office, stating that Michael Lesens must evacuate the tract within a month, and ordering the Civil Administration of Judea and Samaria to oversee and enforce his eviction. Lesens was also ordered to pay the Palestinians NIS 20,000 in compensation.

The petitioners claimed that Lesens planted crops, installed an irrigation system, and fenced in the tract against the orders of the Civil Administration. Lesens, for his part, cited Section 20 of the Ottoman Land Law to argue that because he and others had cultivated the land for more than 10 years, the statute of limitations had expired, and claims against his assumption of ownership could no longer be asserted.

But the bench – comprised of Supreme Court President Dorit Beinisch (who, though retired, continues to preside over cases that were initiated prior to her retirement), Edna Arbel, and Miriam Naor – stated that Lesens had not proven to the court that he had cultivated the land for over 10 years, and even if he had, he would still be required to demonstrate that he had “honestly taken” possession of the land in question.

It is precisely this part of the decision that has left-wing organizations cheering and nationalists fuming – as the court appeared to set a new precedent by creating an additional evidentiary hurdle to asserting ownership, and -in effect- mandating that one could no longer obtain ownership of land in Judea and Samaria under the prevailing law.

Aside from its demonstrable departure from the current law on the books, the new court-ordered requirement is somewhat dubious, as it will likely be difficult for Jews claiming ownership to provide proof that they acquired the land using honest means; especially considering the subjective nature of the requirement and the often-hostile relations between Jews and Palestinians in Judea and Samaria.

The practical ramification of the ruling is that it will allow the Civil Administration to order the eviction and evacuation of Jewish inhabitants from hundreds of thousands of dunams in Judea and Samaria.

Parliamentary Adviser to National Union MK Jacob Katz “Katzele” Jeremy Man Saltan told the Jewish Press that many nationalist MKs are concerned that “the Supreme Court is trying to change the meaning of the Ottoman Law itself (the old Ottoman Empire law from which the Israeli legal system has evolved), instead of asking the Israeli legislator to pass its own version.”

“The law is very clear,” Saltan added, “and people are really shocked that the Supreme Court has gone from changing Israeli laws that don’t meet their standards as they relate to Basic Laws, to changing the Ottoman laws outright.”