According to international law, an occupier must not confiscate land for the needs of the occupying people. Therefore, Israel cannot confiscate privately owned Palestinian land in order to build settlements. As a result, Israel came up with the legal acrobatics of “declaring” instead of “confiscating” land. The declaration is based on a draconian interpretation of the Othman land law from 1858, stating that if land isn’t cultivated for several years in a row it becomes the property of the empire. This law was created in the aim of encouraging maximal land usage, and enlarging empire income from tax.
Through this interpretation of the Othman law, Israel has succeeded in taking over 900,000 dunams, 16% of the West Bank.
Declaration of state land is only possible if the land is not officially registered in the land registry as property of a specific individual. This may seem logical, but the process of land registration is prohibitively long and expensive (including taking measurements, parcelization ect.). Most privately owned land in the West Bank is not officially registered. British and Jordanian authorities succeeded in registering only one third of West Bank land during their rule. When Israel occupied the West Bank in 1967 it issued a military order stopping the process of land registration (the pretext given for this was protecting ownership rights of Palestinians who were forced to flee).
An alternative record of ownership exists in local taxation books. Since Othman times the authorities collected property tax in accordance with listed ownerships not necessarily recorded in the land registry. This listing is much less thorough and exact. According to Israeli military law, the tax book is not a sufficient proof of ownership. In order to buy or sell land, for instance, the land must be officially registered or be in the process of being registered (“initial registration”).
On the one hand, Israel has stopped the process of land registration. On the other hand, it treated all unregistered lands as not privately owned, even if it was recorded as private in the tax books, unless it was cultivated.
The result is that land which Palestinians see as privately owned and is recorded in the village tax books, is seen by Israel as public land or state land, as long as it is not cultivated. This is why Israel claims that the declaration of state land does notchange the status of the land but only affirms it, and therefore should not be considered as confiscation.
The term “state land” is confusing. Which “state” are we referring to? The West Bank is not part of the state of Israel, even according to Israeli law. We prefer to refer to it as “public land” which the occupier is responsible for managing to the benefit of the public. In practice, the state of Israel has used these lands virtually exclusively for the benefit of one public – the Israeli public.
For further details on the issue, see a thorough report by Btselem.
Other methods of land confiscation see here.