Land, Law, and Jewish Settlement in the West Bank

The Territories Conquered by Israel in 1967

The Golan Heights (from Syria) The Sinai Peninsula (from Egypt) The West Bank (from Jordan) The Gaza Strip (from Egypt)

The Hague Regulations, 1907:

Convention Respecting the Laws and Customs of War on Land
Section III: Military Authority over the Territory of the Hostile State. Outcome of extended work of legal experts and courts during the 19th century (an era of short periods of occupation and limited involvement of the state in peoples daily lives). 3 Guiding Principles 1) No sovereignty through conquest. 2) Conquering power obligated to ensure public order and safety [civil life]. 3) Limited authority of the occupying power. The Regulations emphasize the safeguarding the rights of the ousted sovereign (not the rights of the local population).

The Fourth Geneva Convention, 1949:

Convention Relative to the Protection of Civilian Persons in Time of War
The Hague Regulations remain in force. Continuity in terms of the guiding principles: 1) No sovereignty through conquest. 2) Conquering power obligated to ensure public order and safety [civil life]. 3) Limited authority of the occupying power. On the one hand, allows greater flexibility in determining the needs for which it is permissible to change local law. On the other hand, contains a bill of rights of sorts for the inhabitants of occupied territories (protected persons) e.g. Humane treatment, honor of women, equal treatment, no collective punishment, etc.

Occupied Territory in 1948-49?

In 1948, the former sovereign in the territory conquered by Israel was Britain, who transferred the issue to the U.N. in 1947 and withdrew from Palestine. U.N. General Assembly Resolution 181 (29 November 1947) endowed the State of Israel with international legitimacy. More than 40 countries recognized Israel between 1948 and 1949, and Israel became a member of the U.N. in May 1949. No major challenge was mounted to Israels incorporation of the central Galilee and other areas of Israel not allocated to the Jewish state by Resolution 181.

The International Communitys Approach to the Outcome of the 1967 War

Israel did not annex the territories and did not declare them to be under Israeli sovereignty. Formally, the occupation was not accepted by the international community. U.N. Security Council Resolution 242 (November 1967): Emphasizing the inadmissibility of the acquisition of territory by war

- Respecting Local Law Art. 43 of the Hague Regulations (1907)

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and [civil life], while respecting, unless absolutely prevented, the laws in force in the country.

Art. 64 of the 4th Geneva Convention

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

Israels Position Regarding Application of the Law of Belligerent Occupation

Israel has never accepted that it is legally obligated (De jure) to apply international occupation law in the West Bank. Israeli officials did not recognize Egypt and Jordan as sovereigns in the Gaza Strip and the West Bank respectively. In their eyes, recognizing a de jure obligation implied recognition of previous Egyptian and Jordanian sovereignty. Nonetheless, Israel has repeatedly expressed its commitment to apply international law in the territories on its own volition (De facto).

The Supreme Courts Position on Application of the Law of Belligerent Occupation

According to pre-1967 Israeli case law, there is a substantial difference between customary international law and treaty-based international law. The former is enforceable in Israeli courts, while the latter is enforceable only if explicitly specified by statute. HCJ rulings regard the Hague Regulations (1907) as customary international law and the Geneva Convention (1949) as treaty-based international law.

Military Manifest 2 Regarding Law and Administration

In order to ensure proper governance, security, and public order, I hereby declare the following: the law that was in force in the region on 7 June 1967 will remain in force, to the degree that it does not contradict this or any other manifest or order of my issue, or changes stemming from the establishment of I.D.F. rule in the region.

Jerusalem, 7 June 1967 General Haim Herzog Commander of I.D.F. Forces in the West Bank

Occupation Law in the West Bank

Diffusion of law.
Under Israeli control and shaped to achieve Israeli goals. The Israeli Supreme Court provides supervision and legitimation. Israeli goals: security, control, political interests, economic interests, Jewish settlement, and future annexation.

Occupation Law in Theory

Local Law Security Legislation International Law

Israeli Admin. Law

Israeli Law

Penetration of Israeli Law in Various Ways, Primarily after 1977

The Allon Plan (1967-1977)

Land for Jewish Settlement
Pre-`48 Jewish-Owned Land. Abandoned Land (MO 58). Land Registered in the Name of the Jordanian Government (MO 59). Hilly Desert Land belonging to no one. Land Seized for Military Purposes.

Israeli Policy on the Future of the West Bank after 1977 and the Rise of the Likud
-- Full incorporation into the State of Israel through extensive Jewish settlement throughout the West Bank. --

The Elon Moreh Decision Oct 1979 Duweikat v. Govt. of Israel, HCJ 390/79
Previous Israeli case law authorized civilian Jewish settlement as a component of security, and therefore authorized land seizures for military purposes in order to acquire land for settlement. Petition against military seizure of 700 dunams of private land in Rujayb village near Nablus. The Court ruled that the dominant consideration for the settlement was political/ideological - not military - and annulled the seizure order, indicating that it would no longer allow the state to seize private land for civilian settlement without judicial review.

Israeli Land Policy in the West Bank after 1977

Immense pressure on the government to provide more land for Jewish settlement. With the peace process, some MKs and ministers publicly oppose expropriations in the West Bank. Early 1978 - Officials begin applying the principle that all uncultivated unregistered land is state land. At the same time, Palestinians begin submitting petitions to the HCJ against seizures/expropriations. 1979: HCJ Elon Moreh decision. 1980: En masse declarations of state lands Appeals adjudicated by IDF Appeal Boards, according to occupation statutes and Israeli Case Law. 1982: In Al-Nazir decision, HCJ rules that state land declarations are legal under international law.

Declarations of State Land

Application of the familiar principle that all unregistered, uncultivated land is state land.
Statutory basis: MO 59 (regarding Govt. Property, 1967) MO 172 (regarding Appeal Boards). Detailed survey based on land records and aerial photos in regions where British and Jordanian land settlement had not been completed, and declaration of large areas as government property. Maps issued to local makhatir, who were obligated to relay the authorities intentions to anyone who might object. Declarations could be appealed to I.D.F. Appeal Boards in the West Bank. Palestinian appellants faced significant difficulties.

HCJ 285/81
Al-Nazir v. Commander of Judea and Samaria
Attack on the legality of state land declarations. Main argument: MO 59 and MO 172 constitute a significant change in local law and therefore a contravention of international law. Decision authored by Justice Meir Shamgar (MAG, 1961-68; AG, 1968-75; SC Pres., 1983-95). Ruled that state land declarations did not change local land law and in fact provided local inhabitants with an opportunity to challenge the states taking possession of government property. Short-term significance: land for Jewish settlement. Long-term significance: progress towards de-facto annexation.

State Land Declaration Disputes

Land Settlement Disputes

Supreme Court as HCJ

Task: Limited judicial review (legality of the decision).

Supreme Court as Task: Broad Court of Appeals judicial review.

Attack
Task: Assessment of whether declared land is govt. property.

Appeal District Court

Appeal Board Appeal

Task: Public investigation of a parcels ownership.

Dispute Declaration Private Claim Admin. Sett. Officer State Claim

Mukhtar

Region-Based Internal Diffusion of Law

Executive Branch Parliament Supreme Court

Policy / Secondary Legislation Primary Legislation Judicial Doctrine

Sociopolitical Space

Region C
West Bank

Region B
Negev

Region A
The Galilee as a A law generating region.

Land in the West Bank under International Law

Art. 43 (Hague) Art. 52 (Hague) Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. Art. 55 (Hague) 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.

Jewish Settlement in the West Bank Under International Law

The Hague Regulations stress the temporary nature of belligerent occupation, and the establishment of permanent settlements contradicts this principle. Art. 49 (Geneva) Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motiveThe Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Legal Geopolitical Activity And the Struggle over the Land

Use of law according to prevalent interpretation and implementation to secure rights. Modification of interpretation and implementation to expand rights (supported or rejected by case law). Modification of statute to create rights (proactively or retroactively). Manipulative use of legal argument to justify illegal action.