There is no Palestinian Private Property That Stands Before the Will

[Ronit Levine-Schnur is a Senior Lecturer at the Harry Radzyner Law School, Reichman University. She prepared an expert opinion on behalf of the appellants in Saliha v. Minister of Defense (Israel Supreme Court, 27 August 2020).]

This post was first published in Hebrew by the Human Rights Blog of the Minerva Center for Human Rights at the Hebrew University of Jerusalem. The author thanks Yaël Ronen and Oren Tamir for their comments.

Israel’s Long-dated Practice Regarding Private Palestinian Property is put to Test

For many years, Israel was unclear regarding whether it respected Palestinian private property in the Occupied West Bank or not. While ostensibly the practice of seizing private land for the purposes of establishing Jewish settlements, which was prevalent in the 1970s, was not legally ruled out, the Israeli government deviated from it in 1979. At the time, Israel solemnly announced that from then on, the establishment and expansion of settlements in the West Bank would be done on “state-owned lands”. In fact, from that moment on Israel began to close in on Palestinian property and bring about its destruction.

The creation of the land-pool known as “state-owned lands” was based on a complex set of substantive and procedural legal rules that were designed and implemented to allow a maximum of “state” and a minimum of “private” (for example, here and here). Israel’s success in obtaining “state-owned lands” for Jewish settlements was made possible by erasing local law, evading Israeli constitutional law, and negating international law. A recent decision delivered by Israel’s Supreme Court, in an extended panel of justices in rehearing of the Saliha case, is an extreme expression of this practice, and it is not without reason that it is seen as a real victory in the eyes of those who praise it.

The Original Supreme Court Decision in the Saliha Case

The Saliha case dealt for the first time with the validity, interpretation and meaning of Section 5 of the Military Decree Regarding Government Property (synonymous with “state-owned lands”), enacted in 1967. Section 5 has been part of the military legislation in the region for about fifty years. However, until recently it was used only in rare and exceptional cases, making the Saliha case an important ruling.

The case related to the outpost known as “Mitzpe Karmim”, which was built on private Palestinian property. Section 5 states that a transaction made by the Commissioner of Government Property in error and in good faith regarding land that he thought was government property “shall not be invalidated and shall remain valid”. The Supreme Court’s original decision examined two main questions. First, does section 5 have a proprietary meaning, as an arrangement that establishes a type of “bona fide protection” (known as “market overt”), as the Minister of Defense argued? In other words, can a person who entered into a contract with the Commissioner regarding government land that later turned out not to be such (that is, it is actually private property), continue holding the land by the terms of the transaction despite the private right of another? Second, what are the terms of the legal arrangement, and were they met in the case before the Court?

According to the Supreme Court’s original decision, section 5 models a proprietary or quasi-proprietary “market overt”. The Court established the terms of the legal arrangement and decided that they were not met in the case before it. Therefore, the Court accepted the Palestinians’ appeal and required the outpost to be vacated, while establishing a precedent according to which “an appropriate and adequate alternative response in the form of the allocation of alternative land and alternative buildings or the transfer of the existing buildings to it” must be guaranteed to the settlers in actual possession of the land (para. 70).

In its ruling, the Court considered and accepted the appellants’ position, which I presented in my expert opinion (and in my article [in Hebrew]): the local law of the occupied territories does not recognize a market overt protection in real estate transactions (para. 33). The Court also considered the claim that interpreting section 5 consistently with “market overt” contradicts Israeli constitutional norms of protecting property and maintaining equality and human dignity. The Court accepted the evident data regarding patterns of allocation of government property, showing that “the vast majority of residents who will be able to benefit from the existence of the [section 5] mechanism… are the Israeli residents of the area while undermining the right to property of the Palestinian residents” (para. 35). In her Majority opinion, Chief Justice Hayut stated that, as claimed by the appellants, the reference to section 5 of the Decree as an arrangement related to market overt “raises complex questions regarding the compatibility between the law applicable in the region and the rules of international law” (para. 36). Nonetheless, the Court did not give these concerns significant weight when it decided that section 5 offers, when its conditions apply, a legal power to take on another’s land just because of the fact that without the owner’s will and without any legal justification, a public authority contracted the land out to a private lessee.

The Court noted that the appellants presented a different interpretation to section 5 – an interpretation that is not a proprietary one – but refused to deal with it on the grounds that it was “not clear” to it. The interpretation I offered distinguished between the Commissioner’s commitment to maintain a transaction and the power to interfere with the private property of legal owners. I argued that the Commissioner’s inability to fulfil his contractual obligations is not a reason to infringe on another individual’s rights. If the Commissioner’s cannot fulfil his obligations, so I argued, under section 5, he ought to award damages to his lessee.

But it turns out that the local law, Israeli constitutional norms, and international law have no real role when the question of Palestinian private property is on the agenda, and therefore the “proprietary” mechanism that allows the taking (without compensation) of private Palestinian land for Israeli settlements was recognized, as requested by the Minister of Defense and Israel’s Attorney General (AG).

The Rehearing of the Saliha Case

Following the original decision, the Minister of Defense and the AG requested special permission for a rehearing before an extended panel of justices of the Supreme Court. They were troubled with the bottom line of the judgment – the need to vacate the outpost. The AG believed that the Court’s interpretation of the Commissioner’s good faith standard, one of the elements of section 5, was too harsh. The request for a rehearing was granted.

The position of the AG in his petition for a rehearing was strange, since the good faith standard established in the judgment was strict but not objective, and not unusual in a comparative perspective. As recently noted in a comprehensive comparative study on similar proprietary arrangements

“bad faith should mean ‘know or should have known’, rather than being coterminous with ‘know’. A registrant who is simply ignorant of the title defect but could have easily figured it out should be classified as bad-faith”.

In particular, it cannot be accepted that a public authority is allowed to take on another’s private property just because it claims, in retrospect, that it did not suspect the existence of an error in its actions, in circumstances where a reasonable investigation of the facts could have led to the clarification of the truth.

Indeed, the majority of the justices at the rehearing rejected the AG’s claim with respect to establishing the legal standard of good faith, and determined that the required good faith standard is subjective “at the high bar”, which means a strict standard. Many factual questions also arose regarding whether there was indeed subjective good faith as claimed in the case, since there was no clear transaction concerning the land in question and there was no action taken on the part of the Commissioner or his office regarding the establishment of Mitzpe Karamim (although there were actions undertaken by other officials). But above all, the AG’s decision to revert to a rehearing was very upsetting: the AG, knowing of the substantial and severe damage to private Palestinian property if his petition accepted, nonetheless continued looking for further ways to interfere with private property in a case where the application of the Court’s judgment leads to eviction-compensation to the settlers rather than preservation of the settlers and compensation to the Palestinians.

Unfortunately, the Supreme Court chose to take advantage of the rehearing to discuss only concrete factual questions, as if it were a lower court, and not as it is: a Supreme Court that deliberates in an extended panel on questions concerning the protection of the private property of residents of occupied territory, who lack civil status, and have protected status under international law. Instead of taking the opportunity to discuss the fundamental issue – the characterization of section 5 as a mechanism for taking property from the Palestinians, which the Palestinian respondents had presented to the Court in a great detail – the Court reduced itself to a factual examination, despite that as an appeals institution it is not best placed to carry it out.

In the rehearing of the case, the Supreme Court refused to take on the opportunity to examine the weighty question that the Palestinians put before it in their response to the rehearing petition: how can the Court’s interpretation be reconciled with its change of the local law, the violation of constitutional norms, the lack of representation for the affected population, and the deviation from the obligation in international law to protect private property. Although in the original ruling the Supreme Court admitted, in the Majority opinion, that there is complexity in questions of compatibility with international law, the substantive levels of examination were completely abandoned in the rehearing when the justices refused to discuss them. And not for nothing. A review of these complexities would have pulled back the curtains to reveal that there is no, and never has been, market overt regulation applicable to private Palestinian land due to the actions of the occupying government in allocating land for the establishment of settlements for the occupier’s people which can be reconciled with local law, Israeli constitutional law, or international law. Indeed, it is compatible with the desire to encourage Jewish settlements in the Occupied Territories, and with Israel’s desire to guarantee more to settlers in these territories than to settlers in Israel itself: proprietary protection even in the event of a mistake in land allocation.

The Majority of the Court decided in the rehearing that the settlers of Mitzpe Karmim, which was built on private Palestinian land, would not be evicted, while the Palestinian landowners would be entitled to compensation. Note that section 5 does not require such compensation, and this entitlement granted by the Majority of the Court represents an attempt to minimize the damage to the landowners. Conversely, when land rights entangle with politics, monetary compensation are not parallel to land possession.

Despite the clear and severe damage to the Palestinian landowners, one can find two reasons why the second decision of the Court is actually more appropriate than the original one. First, the original ruling included an innovative and problematic determination that the settlers must be allocated alternative land and alternative buildings, even though they (or the Zionist Organization who supported them) did not have any permission to possess the land and even though all the existing buildings were built illegally. Although the government has offered a similar “solution” to vacated outposts in the past, I cannot recall a Supreme Court judgment requiring this. In any case, this outcome was overturned in the second decision.

Second, the original ruling fortified the erroneous belief that the Supreme Court protects Palestinian property rights, while establishing a mechanism that denies this very right. Now that the legal rule and its result have been combined, it has become clear that the Israeli Supreme Court refuses to examine the important claims regarding the conformity of the rule it designed with the applicable norms (local, constitutional, international). Now, we must submit to the truth: there is no Palestinian private property that is stands before the will of the occupying power.