The state is seeking to retroactively legalize the expropriation of privately owned Palestinian land in a West Bank settlement, even though it admits the land was expropriated by mistake.

In a brief submitted to the High Court of Justice on Monday in response to a petition against a proposed master plan for the settlement of Ofra, the state asked the court to allow it to include the 45 dunams of land in question in the master plan and legalize construction on them.

Hundreds of dunams in the area where Ofra now stands were originally expropriated in 1966 by Jordan. Israel, which captured the West Bank in 1967, expropriated the land a second time in the 1970s to legalize settlement there.

In a brief submitted to the court in August 2016, the state admitted it had mistakenly expropriated some areas because at the time it had not realized that Jordan had expropriated only portions of certain plots, and so Israel seized the entire plots. As a result, it wound up taking 45 dunams that shouldn’t have been taken, and parts of Ofra were later built on this land.

Last year’s brief also said the state had decided to submit an amended master plan for Ofra that didn’t include the land in question, and to freeze the registration process for all the affected plots until the amended master plan would be approved. Finally, the brief acknowledged that at least two of the Palestinian petitioners had a “prima facie connection” to the mistakenly expropriated land.

Open gallery view Map of plots in Ofra that Israel is attempting to retroactively expropriate in the West Bank Credit: Google Maps

Nevertheless, in Monday’s brief, the state said it had instead decided to try to legalize the expropriation of those 45 dunams.

“There is no justification for removing the plots which were only partially expropriated by the Jordanians from the plans which are the subject of the petition,” the brief said, adding that Attorney General Avichai Mendelblit approved this position.

The brief argued that Article 5 of the Government Property Order applies to these partially expropriated plots. This article in question states that a transaction between the custodian of government property and any other person shall not be nullified, even if it later turns out that the property in question didn’t belong to the government, as long as the transaction was made in good faith and the custodian genuinely believed at the time that the property did belong to the government.

Open gallery view Nine homes in the West Bank settlement of Ofra were evacuated and demolished by the Israeli government as they had been built on private Palestinian land, May 20, 2017. Credit: Olivier Fitoussi

“What this means in our case is that all the land in the partially expropriated plots is an inseparable part of the territory covered by the 2011 allocation deal between the custodian and the settling party,” the brief said. Moreover, it argued, the fact that the petitioners waited decades after Ofra’s founding to file their petition is grounds in and of itself for rejecting it, the brief said.

Finally, the brief stated the new law allowing the state, under certain conditions, to legalize settlements or outposts built on privately owned Palestinian land in exchange for compensation, is relevant. However, it did concede this law, called the Resolution Law, is being challenged in the High Court.

Attorney Tawfique Jabareen, who represents the petitioners, said he was “shocked” by the brief.

“Attorney General Mendelblit is continuing to destroy the status of the rule of law and severely undermine Palestinian property rights in the occupied territories,” he said. “The prosecution claims the state allocated the land to the settlers in good faith, and therefore, it’s not possible to remove this private Palestinian land from the boundaries of the plan for Ofra. But I can’t understand how good faith exists when you allocate land for the purpose of illegal construction without an approved plan, or how it’s possible to attribute good faith to an occupying state when it dispossesses protected Palestinian residents of their private land.”

The state’s brief appears to be the first application of a legal opinion Mendelblit wrote in late 2016, in which he supported using Article 5 of the Government Property Order. The opinion stated that land like that in Ofra, which the state transferred to a third party out of a mistaken belief that it was state land, would be reregistered in the names of the Palestinian owners’ names, who would receive financial compensation for its use but not regain acces to their land. The land would thus be de facto expropriated yet belong to its Palestinian owners de jure.