A court district court judge in Jerusalem has accepted the legal theory put forward by the government, which could create a precedent that would allow the legalization of homes built on a private Palestinian land.
The final verdict in this case, involving Aleja Zahava settlement in the North West Coast, could provide a legal basis for legalizing up to 2,000 homes in settlements on the West Coast whose legal status is in dispute.
In his ruling last month in connection with Alei Achaham, District Court Judge Carmi Mossek accepted the state's view that the construction of a residential settlement in a private Palestinian country can be retroactively legalized if the land is considered wrongly considered state-owned.
The state has been relying on this legal argument for a few months, basing its outlook on the open market – that transactions conducted in good faith are considered valid under certain circumstances even when there are legal issues. However, the same legal consortium will also be taken over by the High Court of Justice in another case related to the establishment of Mitzpeha Krami on the West Bank.
Judgment of Judge Mosseka is the first to accept the position of the state. As a result, four houses built on a land believed to be state-owned land will be legalized, despite the fact that the plot owned by the Palestinians.
In the case of Alei Zahava, the state relied on a military warrant that applied the open market concept to the West Bank. The Order stipulates that if the Israeli civilian administration on the West Coast allocated land to the West Bank settlement in the true belief that it is a state land, the construction of a settlement on it will be considered legally even if later it is discovered that the civilian administration was mistaken.
As with the rest of the country in settlements on the West Bank, the place of homes in Alei Zahava was considered to be state land based on old maps that roughly labeled the land borders on the basis of nowadays obsolete technology. The Civil Administration team reviews the land borders of the West Bank and found that some of the parcels in the West Bank resorts, including the Alei Zahava houses in question, were built on Palestinian land.
On May 14, Judge Carmi Mossek ruled that the military command that contains the open market concept is valid for Alei Zahava, and the residents of the land in question have the right to realize their shareholdings on the land. The judge has given the states by September to supplement the technical conditions for the legalization of buildings on parcels.
Among other recent cases in which the state relied on the military order was a dispute over land ownership in Nile in the North West Coast. In that case, the State Legal Advisor said that this position was in accordance with the legal opinion issued by State Attorney Avichai Mendelblit.
The state called for a similar argument last year before the District Court in Jerusalem, which included efforts to legalize an unauthorized establishment at Mitzpeh Krami near Ramallah. In that case, the Court also agreed that the open market principle was applied, but the facts in the case were somewhat different in that the State was deeply involved in the choice of the location of the post, despite the fact that the establishment was unauthorized. The dispute is now in front of the High Court of Justice.
The High Court also has a case before it challenging the law passed by Knesset in 2017, which would retroactively legalize the seizure of a privately owned Palestinian land on which the construction of a settlement was built in good faith or with the government's encouragement. It is presumed that the High Court will dismiss this law, and therefore the public prosecutor's staff has observed other legal principles that would achieve a similar result, including the principle of an open market.