Settlers can’t use Ottoman law to claim land (JERUSALEM POST) By JOANNA PARASZCZUK, TOVAH LAZAROFF 03/22/12)
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The High Court of Justice ruled late Tuesday night that a settler
must evacuate private Palestinian land near Kedumim within a month.
Rights groups said the precedent- setting judgement could have far-
reaching effects on Israeli land claims in the West Bank.
In the ruling, the panel of justices – Supreme Court President
(Emeritus) Dorit Beinisch, Edna Arbel and Miriam Naor – found that
settlers could not use Ottoman land laws to gain ownership rights to
private Palestinian land. (Although Beinisch turned 70 on February
28, she still sits on cases that the court began to hear before she
passed the mandatory retirement age for judges.) Yesh Din –
Volunteers for Human Rights, which filed the petition on behalf of
Palestinians land claimants, said on Wednesday that the ruling was
significant, not only because settler Michael Lesens would now have
to evacuate the land, but since it also has widereaching implications
for tens of thousands of hectares of West Bank land held and
cultivated by settlers – who use the same Ottoman land law as the
basis for ownership claims.
In the ruling, the court accepted a petition brought by three
Palestinian landowners, and ordered the Civil Administration of Judea
and Samaria to enforce Lesens’s evacuation from the land by April 20.
Lesens must also pay the Palestinians NIS 20,000 and an additional
NIS 10,000 to the civil administration.
Yesh Din filed the petition in 2009, two years after the Palestinians
said they saw Lesens had fenced off the plot of land, and planted
crops and installed an irrigation system on it.
The Palestinians first complained to the civil administration, which
issued an evacuation order against Lesens.
But that order was never fulfilled, as Lesens appealed to the
military committee of appeals asking for it to be revoked. The
committee did so.
Lesens argued that because Kedumim settlers had cultivated the West
Bank land for more than 10 years, he was entitled under Section 20 of
the Ottoman Land Law to be considered its owner. (Land law in the
West Bank is based on Ottoman land codes, to which various amendments
have been made.) The High Court, however, dismissed Lesens’s claims
regarding the land law, which deals with disputes and states that no
claims can be made against against someone who has cultivated a plot
of land peaceably for more than 10 years.
In the ruling, Beinisch said Lesens had not provided proof to the
court that he had cultivated the land for over a decade, and that he
still would have needed to show that he had not taken possession of
the land by illegal means.
To prove ownership, the court ruled, settlers must provide proof that
they acquired control of the land using honest and legal means.
Beinisch also criticized Lesens for using legal proceedings to delay
his evacuation from the land.
The justices said that a central question before the court was
whether the civil administration had acted lawfully in issuing its
first order to evacuate Lesens from the land, and if that order
should be enforced.
The court noted that according to military order 1586 regarding
disruptive land use, the civil administration is authorized to order
the cessation of disruptive use of privately owned West Bank land,
and to take steps to enforce such an order when it is not complied
The civil administration is empowered to issue such orders – whose
source is in international law – to maintain public order in the area
and to protect private property, Beinisch said.
Yesh Din attorney Michael Sfard said the ruling “imposes order on the
jungle that is taking control of Palestinian lands in the West Bank.”
“We only hope the ruling will be implemented,” he added.
The Samaria Citizens Committee accused Beinisch of taking additional
measures at the end of her tenure to enshrine herself as the
representative of the Left, by continuing to erode Israeli land
ownership in Judea and Samaria in favor of the Palestinians.
The committee called on the government to take legislative measures
to undo the judicial harm which had been caused to the Israeli
residents of Judea and Samaria. (© 1995-2011, The Jerusalem Post
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