The issue of land ownership in the West Bank has recently been on the Israeli public agenda following a High Court ruling that the settlement outpost of Migron must be dismantled, as it is located on privately-owned Palestinian land. In response the government decided to move the residents of Migron to a new site located on what is referred to as “state land.” However, a new report by the Israeli human rights group B’Tselem calls into question this distinction between private land and state land in the West Bank. Under the Guise of Legality examines Israel’s policy of declaring state land in the West Bank. B'Tselem's research reveals that large swaths of land have been classified state land and designated for use by settlements, despite the fact that they belong to Palestinian individuals or communities.

After the High Court ruling in Elon Moreh (1979) which prohibited the seizure of private Palestinian land for the purpose of building Israeli civilian settlements, the Israeli government declared that it would build settlements only on state land. However, in 1967, the amount of land registered as state land was limited (some 527,000 dunums[1]) mostly in the Jordan Valley and the Judean Desert. The state, however, planned to build settlements in the central Mountain Ridge of the West Bank.

The solution Israel adopted was to rewrite the rules and apply an entirely different interpretation of the relevant land law (the Ottoman Land Code which remains in force). By employing these tactics, between 1979 and 2002, Israel declared more than 900,000 dunums as state land. This figure represents a 170% increase in the amount of state land in the West Bank prior to the Israeli occupation.

In the past, B’Tselem has criticized the fundamental illegality of settlements under international law, as well as the administrative flaws in the land declarations policy. However, the current report is the first instance in which this policy is examined in light of the local law itself. This analysis leads to the conclusion that the declarations policy carried out by Israel under the leadership of Adv. Pliya Albeck (now deceased) of the state attorney’s office was unlawful as it often classified land that was privately or collectively owned by Palestinians as state land.

The report demonstrates how the new interpretation employed by Israel facilitated the declaration of state land, even in cases of land that was considered collective or private Palestinian property under the Land Code, as it was interpreted first by the Turks, then the British and the Jordanians when they controlled the West Bank. Israel did so by setting onerous requirements of prolonged cultivation as a condition for acquiring ownership rights to the land. Additionally, Israeli interpretation disregarded the provisions of local law, which grant Palestinian communities collective usage rights to grazing lands and other public lands [for a detailed description of the mechanism used by the state attorney’s office].

The report contains a comparative survey undertaken in the Ramallah region, that reveals dramatic differences between the percentage of land Jordan registered as government property and the amount Israel declared as state land in areas the Jordanians did not manage to survey prior to 1967. The results of the survey support the conclusion that a significant percentage of the land that Israel declared as state land is actually privately owned Palestinian property, which was taken from its lawful owners by manipulation of the law and in breach of local and international law alike. [see examples]

In any case, given that the West Bank is under military occupation, state land in the West Bank, including that declared prior to 1967, does not belong to the State of Israel. It is not meant to be used to benefit Israelis, but rather to benefit the Palestinian population, defined as protected persons under international humanitarian law. Despite this obligation, the percentage of state land that Israel has designated for Palestinians is negligible. Virtually all state land has been designated for exclusive use by the settlements.

In light of these conclusions, B’Tselem states that the government must revoke the compromise agreement with the Migron settlers, as relocating the outpost to an area which is allegedly on “state land” is illegal.