Summary, March 2012

Since the 1979 judgment of the High Court of Justice in the Elon Moreh case, which prohibited the requisition of private Palestinian land to build civilian settlements, the settlement enterprise has been based on the use of state land. However, the amount of land recorded in the land registry as government property prior to Israel’s occupation of the West Bank in 1967 was limited (527,000 dunams, 9 percent of the West Bank, excluding East Jerusalem), and was concentrated in the Jordan Valley. The Central Mountain Ridge region contained almost no state land.

Following the court’s ruling in the Elon Moreh case, and in line with policies of building settlements throughout the West Bank, including on the Central Mountain Ridge, the State of Israel declared more than 900,000 dunams as state land. Over the years, B'Tselem and other human rights organizations criticized Israel’s declarations policy, both on procedural grounds – Palestinians were often denied the right to effectively object to the declaration – and on the substantive claim that the declarations were intended to promote an unlawful objective: the establishment of settlements, which, because it creates permanent change in occupied territory, is forbidden under international law.

B'Tselem’s new report considers the subject from a novel perspective: it examines the declarations policy from the aspect of the local land laws, the most important being the Ottoman Land Code of 1858. The report provides a detailed analysis of the 1858 Code and the Ottoman, British Mandatory, and Jordanian land laws that amended and revised it. The report also discusses relevant court rulings from the Mandatory period. The analysis shows that Israel’s application of its declarations policy was unlawful, since it classified some land as government property even though, under the local Law, it was private Palestinian property.

Most of the declarations were made on miri land, which is defined as all land that lies within a radius of 2.5 kilometers from the built-up area of the village, as it was in 1858, regardless of whether the land was under cultivation or not. Declarations were made also on metouae grazing land. Under the Guise of Legality shows that the declarations policy breaches the local land laws in three principal manners:

Nature of the type and scope of cultivation that grants ownership rights

Under article 78 of the Ottoman Land Code , a farmer who cultivated miri land for 10 years without objection by the state acquires ownership rights in it. The statute does not define the nature of the cultivation needed to acquire the ownership. This has important implications as the Central Mountain Range in the West Bank is characterized by rocky land, only a small portion of which is arable. The Mandatory Supreme Court ruled that in a rocky parcel of miri land, cultivation of pockets of fertile land scattered here and there grants the farmer ownership rights in the entire parcel. This doctrine was applied in the West Bank also during the period of Jordanian rule. In its declarations policy, Israel applied a different and more stringent interpretation: a person who claimed rights in rocky land must prove that he cultivated at least 50 percent of the entire parcel. If the pockets of land under cultivation amounted to less than 50 percent, the entire parcel was deemed state land, leaving the farmer with no rights whatsoever. By doing so, Israel classified as government property land that, under the local Law, was private Palestinian property.

Demand of continuous cultivation of the land

The Mandatory Supreme Court ruled that a farmer who cultivated miri land for 10 years and then ceased cultivating it did not lose the ownership rights he had acquired in the parcel, even if he did not register it on his name in the land registry. This interpretation was applied in the West Bank also during the period of Jordanian rule. In its declarations policy, Israel adopted the opposite interpretation, whereby unregistered miri land which had been cultivated for 10 years or more, after which cultivation stopped at some point, was government property and could be declared as state land. In this way, Israel declared large swaths of land in the West Bank as state land, though under the local Law they were private Palestinian property.

Disregard for community rights in grazing land

Under the 1858 Code, metruka land is defined as public land of two kinds: one, land that serves the entire public (for example: roads), and two, land designated for a specific group, such as grazing land that a certain village has used for many years. The Mandatory Supreme Court ruled that in order to establish their collective rights in the land, it is sufficient for residents of the relevant village to prove that they used the land for many years for grazing. In its declarations on state land, Israel disregarded the collective rights of Palestinian communities in grazing land. Quite to the contrary, in many cases, Israel's declarations were based on the claim that the land was not cultivated, but only used for grazing. A government survey conducted in 1976 showed that the West Bank had 3.6 million dunams of grazing land, two million of which (about 35 percent of the entire West Bank) were not arable. Undoubtedly, a substantial portion of these lands are designated metruka land and belong to local Palestinian communities. Declaring these lands state land and allocating them to settlements breach local Law.

In addition to the theoretical discussion on the local land laws, the report contains a survey of the Ramallah area that compares the amount of state land that was recorded in the land registry during the period of Jordanian rule with the amount of unregistered land in this area which Israel declared government property. The survey revealed dramatic differences between the percentage of land that had been defined as government property by Jordan and the amount that was defined as state land by Israel.

For example, the Jordanians completed land settlement (recording in the land registry) for half of the village land of ‘Ein Qinya, in which not one dunam was registered as government property. In comparison, in the case of the lands of the adjacent village Al Janya, which did not undergo land settlement, Israel declared 34 percent of the land as government property and built the Dolev and Talmon settlements on it. In Kafr ‘Aqab, which lies south of Ramallah, in the course of the Jordanian land settlement, 3,240 dunams of land were registered, with only 2.4 dunams (0.1 percent of the area that underwent land settlement) being classified as state land. In comparison, of the land of Kafr ‘Aqab that had not undergone land settlement (2,250 dunams), 1,415 dunams (63 percent of the land that had not undergone land settlement) were classified as government property by Israel and used to build the Kochav Ya'akov settlement.

These data and other facts and figures included in the report show that the declarations of state land by Israel were substantively different from the results of the land settlements that were carried out in the West Bank during the Mandatory and Jordanian periods. This fact supports the conclusion that a significant percentage of the land that Israel declared as state land is privately owned Palestinian property, which was taken from their lawful owners by legal manipulation and in breach of local Law and international law alike.