Mark B. Kaplan
Read this legal opinion from Attorney Howard Grief about the legal status of Migron. It was requested by the former Director General of the YESHA Council, Naftali Bennett.
Howard used good legal foundation for “reversing the charges” on the Arab accusation that Jewish settlements are illegal because Judea and Samaria are occupied territories.
So, if an occupying power is limited on what it may do with occupied territory, what does this say about Jordan’s selling or allowing construction in Judea and Samarian the while it illegally occupied the territories?
If there is too much legaleze in the document, read on…
Attorney and Notary
Author of The Legal Foundation and Borders of Israel under International Law
29 Adar 5772
March 30, 2012
To: Mr. Naftali Bennett
LEGAL OPINION ON THE LEGAL STATUS OF MIGRON
In a Petition filed before the Supreme Court by the foreign-funded organization “Peace Now” on behalf of alleged Arab owners of land where the hilltop settlement of Migron is located in the Binyamin region just outside Jerusalem, the Court ordered the dismantlement of this settlement and the land restored to its presumed Arab owners. In its 2006 judgment, the Supreme Court never questioned the principal fact in dispute, that the land truly belonged to the Arab Petitioners who live in the nearby village of Deir Dibwan, but merely accepted the admission by the Government of Israel that Migron was illegally built on private Arab property, apparently based on the findings of Talia Sasson to that effect, who, in preparing her 2005 report for the Government of Israel on unauthorized settlement construction in Judea and Samaria or what were called “illegal outposts”, accepted without any reservation on her part the Arab claim of land ownership. Since the Government’s policy is not to build new settlements on privately-owned land ever since the rendering of the 1979 Elon Moreh judgment where this question was first raised, the Court ruled that the Migron settlement was illegal principally for that reason and had to be evacuated. It appears, though, that both the Government and the Court acted too precipitously in the case of Migron, without examining the validity of the Arab claim of ownership.
In January of this year I was consulted by several concerned individuals, among whom were Attorney Orly Medina, Engineer Gedalia Glazer, Educator Yoel Lerner and Businessman Israel Ostreicher. I was informed that the land in question was parceled out in lots to a number of Arabs under a land grant made in 1960 or thereabouts by King Hussein of Jordan.
Now it is a well-known fact that Judea and Samaria were, during the 19-year period from 1948 to 1967, territories under illegal Jordanian occupation and that the Jordanian annexation of this entire territory in April 1950 was neither accepted by the international community nor even by the Arab League states, except by Great Britain (that did not recognize the Jordan annexation of eastern Jerusalem) and presumably Pakistan, which the research of Professor Sanford R. Silverburg of Catawba College, Salisbury, North Carolina has shown has never actually been corroborated by any official Pakistani document (See: Silverburg, S.R., “Pakistan and the West Bank: A Research Note”, Middle East Studies, Vol. 19, No. 2, April 1983, pp. 261-263). Under the prevailing rules of international law, as embodied in Articles 42, 52 and 55 of the 1907 Hague Regulations, Jordan, as the Occupying Power of Judea and Samaria, being lands that were earmarked for the Jewish National Home and State under the Balfour Declaration, San Remo Resolution, the Franco-British Boundary Convention of December 23, 1920 and the Mandate for Palestine, which Jordan had re-named the “West Bank”, had no legal authority to grant to its citizens or subjects parcels of land that did not legally belong to it under the established rules of international law. This prohibition is found in Article 55 of those Regulations, which states that
“the Occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile state, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct”.
Since Jordan was only the administrator or usufructuary of Judea and Samaria, it was never the legal owner or sovereign of this land. Hence, King Hussein’s land grant to various of his subjects has no legal validity or basis in international law, in the law of Palestine during the Mandate period, nor in Israeli law today, regardless of whether this land was registered in the names of those who benefited from the grant of land. The only exception to Article 55 of the Hague Regulations is set out earlier, in Article 52, which allowed the requisition or confiscation of land for military purposes only. Under these circumstances, it was incumbent on the Government and the Supreme Court to carry out a thorough inquiry to determine whether the deeds of ownership held by the Arab Petitioners, which they had received from Jordan, were indeed valid, a duty neither discharged or even considered. Moreover, it was wrong for the Government to rely only on the questionable and unproven findings of the Sasson Report for proof of ownership. The Petitioners themselves were obliged to prove their ownership to the satisfaction of the Government and the Court.
Prior to King Hussein’s land grant in Judea and Samaria, the land where Migron is located was not privately owned but was either land belonging to the Sultan called miri land or, much more likely, ownerless waste land known as mewat land under the Turkish legal system in force in Mandatory Palestine. All such land is today classified in Israel as state land. Jordan, which took control of this land through an illegal war of aggression it launched in 1948 against the nascent Jewish State of Israel was never the recognized sovereign of it, with a valid legal title. It could therefore not legally distribute the land to its own civilians. To repeat: Migron was therefore never “private Arab property”, a fact of immense importance in determining the legality of the settlement. Its establishment, it is true, may not have been approved by an advance Government decision, but the Government subsequently created its infrastructure, such as the paving of roads. However, the lack of government authorization at the outset of Migron’s establishment is not the chief reason for saying it was “illegal”. The chief reason was that it was built on privately-owned land, a claim which upon examination and analysis is found to be absolutely false and without merit.
It is true that ownership of land may eventually be acquired by prescription, unless interrupted by protest by the actual owner, through continuous possession of the land by squatters who originally had no right or title to the land. However, in the Migron case the alleged Arab owners never truly possessed the land in the sense required for prescription, since the land was never cultivated or farmed by them, but rather lay fallow or unploughed and was no more than unused vacant land until the Migron community was established in 1999. In light of the fact that the alleged Arab owners of the land constituting Migron never had a valid legal title to begin with, nor did they settle or vivify the land they claimed to have owned, their claim that the land was their “private property” is without any basis in law and should have been rejected outright by the Government and the Supreme Court. The intervention of Peace Now on behalf of the alleged Arab owners was a deceitful provocation that lacked any legal standing and would never have been permitted by a court in any other country except in Israel.
I understand that other legal arguments for rejecting the Arab claim of ownership were also made by the residents of Migron and their attorneys, but the principal argument as set out in this Opinion was unfortunately never made. To repair a bad situation, the Government ought to re-classify the land comprising Migron as “state land”, rather than “private land” and give the settlement retroactive authorization, which can be done by the simple issuance of an order.
It is ironic that Peace Now and the Court itself both cite the Rule of Law for dismantling an illegal settlement on private Arab land. Indeed, the application of the Rule of Law in this case requires the very opposite of what they say needs to be done, namely, that false claims should never be sanctioned by the Court and that the Government allow Migron to stand and flourish.