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Methods of Confiscation - How does Israel justify and legalize confiscation of lands?

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Over the years, Israel has used a number of legal and bureaucratic procedures in order to appropriate West Bank lands, with the primary objective of establishing settlements and providing land reserves for them. Using primarily these five methods: seizure for military purposes; declaration of state lands; seizure of absentee property; confiscation for public needs; and initial registration, Israel has managed to take over about 50% of the lands in the West Bank, barring the local Palestinian public from using them.

 

Seizure for Military Purposes

The first and primary means used by the State in order to take hold of private lands was “seizure for military purposes”. Between 1968-1979, Israeli military commanders issued dozens of such seizure orders, confiscating almost 47,000 dunams of private land.

In contrast to an “expropriation,” in which ownership of the land is transferred to the State, “military seizure” leaves the official ownership of the land under the name of its original owners, but transfers total control of the land, for a designated period of time, to the military. At the end of that period, the military must either relinquish control of the land to the owners – something which has rarely happened in the West Bank – or renew the seizure order. Furthermore, the owners of the land are entitled to compensation from the military.

Many of the settlements established during the first decade of the Israeli occupation of the West Bank were built on land that had been “seized for military purposes.” However, a landmark High Court of Justice decision in 1979, known as the Elon More case, brought this abusive practice to an official end.

Elon More was initially constructed in June 1979 on lands seized for military purposes from the private lands belonging to the Palestinian village of Rujib. The owners of the land petitioned the High Court of Justice, arguing that the seizure was illegal, since the IDF based it on security needs, while the seized land was actually being used for a new settlement. In its response, the State Attorney’s office stated, as in many similar cases before, that the establishment of the settlement was indeed required for military purposes.

In response, settlers from the Elon More group submitted a memorandum rejecting the interpretation that the seizure was temporary and for military purposes. The settlers made clear that their intention was to establish a permanent civilian settlement, founded for ideological and political purposes. This, of course, contradicted the State’s claim.

In view of the settlers’ argument, the High Court ruled that the establishment of the settlement on this land was not consistent with the uses of land “seized for military purposes,” and instructed that the seizure be cancelled. Based on the Elon More legal precedent, after 1979 the State refrained from using “seizure for military purposes” as a means of taking over privately-owned Palestinian land for the construction of settlements. However, 33% of the settlements established before the Elon More case were built on private lands, and the percents are similar for settlements built after this precedents (read Peace Now’s report "One offense begets another” for more information).

Furthermore, during the decade following the signing of the Oslo Accords, Israel began once again to make regular use of seizure injunctions for military purposes, particularly in order to establish the bypass road system on the West Bank, intended to make it possible for troops and settlers to travel without having to cross Palestinian population centers. Over the years, many additional seizure orders have been issued in order to create “secure zones” around the settlements, as well as to build the separation fence.

 

Declaration of State Lands

Once the procedure of military seizure was no longer valid for the purpose of acquiring lands for settlement, a new legal procedure, based on a local interpretation of Ottoman law, was implemented to declare extensive areas in the West Bank as “State Lands.” Over the years, Israel confiscated more than 900,000 dunams in the West Bank in this manner, and at least 90 settlements are built on lands declared as “state lands.”

In order to understand this mechanism, we must understand the situation of land ownership in the West Bank in 1967. According to the Ottoman law code, which Israel makes use of in the West Bank, all lands are considered "State Land" unless proven otherwise. To formally register land as private property, one must cultivate it for at least ten years. If the land is not registered, one would be considered the owner as long as he cultivates it and pays taxes on it. If the land is not cultivated for three successive years, it may become the property of the Ottoman State, i.e. "State Land".

Israel has also exploited the fact that during the Ottoman period only small parts of the land of the West Bank were formally registered to a specific owner. During the 1920’s, the British began a process of registering the land to the farmers who cultivated it or residents who owned houses that were built on it. This process continued throughout the Jordanian period. In 1968, the State of Israel stopped the land registration process by virtue of an injunction issued by the military governor in the occupied territories. It was claimed that the injunction was intended to protect the owners of land that had been abandoned (from other Palestinians who might try to register ownership of it in their absence), and to prevent the rights of these owners from being discriminated against. However, in reality, this injunction left thousands of square kilometers of agricultural land unregistered, where it eventually was declared "State Land" and used for the sole benefit of Israel.

As it becomes more difficult for Palestinian farmers to reach and cultivate their private lands that are located in proximity to settlements, these lands too face the danger of being declared “State Lands” and turned over to the use of the settlements. It should be marked that Israel may be following the Ottoman law code to the letter, but it is doing it in an improper and discriminatory manner. State Lands are public property and should benefit the entire local population, yet since 1967, the State has completely denied the Palestinians their right to use these lands, and has allocated them only for the establishment and expansion of settlements.

For further details and analysis read the report by Btselem about Declaration of State Lands

 

AbsenteeLand

Among the registered private lands in the West Bank, there is a special category of Absentee Land, belonging to people who fled the West Bank in 1967. A special order gives the State the power to manage these properties and actually to occupy them until the owners’ return (which, since Israeli stopped the policy of family reunification, can happen only in extremely rare cases). The total area of such land is estimated at 43,000 hectares. As many of these lands were uncultivated for years, they were later declared State Lands. The order allows the Commissioner of Governmental and Abandoned property to lease and even sell the land. As far as we know such properties were used for settlements mainly in the Jordan Valley area, but we do not know on what scale and where.

 

Confiscation for Public Needs

According to the applicable law in the West Bank, the government is entitled to confiscate private land for public needs (roads, public gardens, etc.). However, unlike in the case of confiscation for military purposes, these confiscations should benefit the entire population, Palestinians as well, and not only the occupying powers. Therefore these lands cannot be used for the establishment of settlements. Nevertheless, in at least one case – that of Ma’ale Adummim – 1,000 hectares of Palestinian land were confiscated for the settlement. Extensive additional Palestinian land has been confiscated for the construction of roads to the settlements, on the grounds that these also serve Palestinians, and for the construction of bypass roads established after the signing of the interim agreement (1995).

 

Initial Registration

The last procedure available to the State is to begin a process of registering the land under its name in the land registry. The process of land registration can take a long time since it allows other parties to claim their ownership, which they have to provide proof for - a long and drawn out process. The only case Peace Now knows of in which the procedure of initial registration of land was used as a means to turn land into state land is the case of the three orders issued in July 2008 for the purpose of expanding the settlement of Efrat. It is possible that the authorities chose the registration procedure instead of the declaration procedure to try to avoid what could be perceived as a "confiscation," and to claim that it was "merely" a standard administrative procedure to register the land.

Private Jewish parties who purchase land in the West Bank also have to undergo a process of Initial Registration in the land registry, before initiating construction of settlements. A practice known as “Circular Deals”, involving government bodies and private entrepreneurs, came into shape in the early 1980s, probably in order to avoid the difficulties of the registration process, which requires revealing the name of the seller and involves an extensive inspection for forgery and frauds. Circular Deals involve the declaration of a given area as State Land, while concealing the fact that an Israeli developer claims that he has already purchased the land from its Palestinian owner on the private market. After the declaration procedures are completed, the Custodian of Government Property allocates the land to the developer in return for reduced lease fees. This is apparently how a private settler organization got hold of the lands of Matityahu East in Modi’in Illit.