In Israel and the Palestinian territories, March 30 is known as Land Day, the day in 1976 when six unarmed Palestinian citizens of Israel were shot and killed by the Israel Defense Forces while protesting the Israeli government’s seizure of Arab land in the Galilee region. Since then, Land Day has become a symbol of Arab resistance against the most serious and growing threat to the prospect of a future Palestinian state — Israeli seizure of Palestinian territory in East Jerusalem, the West Bank, and Gaza.
Israeli land expropriations peaked in the immediate aftermath of the 1948 war, but slowed down as the focus shifted to validating state control over Arab property through the legal system. However, the military conflict of 1967 initiated the next phase of Israeli territorial expansion into East Jerusalem, the West Bank, and the Gaza Strip (the occupied territories). The Palestinian residents of the occupied territories, for the most part, did not abandon or flee their homes during the Six Day War. As a result, Israel acquired not just the remaining 22 percent of Mandatory Palestine, but approximately one million Palestinians who held the legal title to it. This demographic reality necessitated the crystallization of the third phase of the Zionist land blueprint — a land law regime that separated Palestinians from their land even as they lived on it, by selectively denying property rights to Arab residents of the occupied territories.
While Israel refused to recognize the 1967 areas as “occupied territories,” the United Nations and other international bodies adopted the position that East Jerusalem, the West Bank, and the Gaza Strip were militarily occupied lands to which the international law provisions of The Hague Conventions and the Fourth Geneva Convention would apply.
In other words, international law required Israel to enforce the governing land laws in the occupied territories, with a narrow exception for amending such laws where security exigency demanded, and refrain from both settling Jews in, or deporting Palestinians from, the territories.
The Israeli government’s dismissal of such principles was most blatant with regard to its activities in East Jerusalem. In the West Bank and Gaza, Israel defined its control over these areas as “territories under custody” under military governance.
Everywhere Israel manipulated existing regulations for purposes of land acquisition. Although required by international law to enforce the prior existing land law regime, the Israeli government turned to a variety of creative tactics that permitted its land acquisition program to continue.
In 1968, the occupation authority issued Military Order 291, which put a stop to the British-Jordanian process of private land registration in the territories. This order operated in conjunction with Military Order 59, issued in July 1967, which transferred to the Israeli government any property that belonged to a “hostile state” prior to June 7, 1967. The definition of “hostile state,” however, covered not only property that was officially registered to the Jordanian (or other Arab) government, but any land that was either unregistered or still in the process of being registered as of the Six Day War. This definition also covered vast tracts of miri or mawat land, which had since Ottoman rule been generally available for the public agricultural and grazing possession and use.
To those lands, Israel applied the Prescription Law of 1958 and required Palestinian villagers and farmers to prove with documentary evidence that they had uninterruptedly cultivated such property for the 15-year prescription period. The vast majority of Palestinians were unable to meet these requirements, and as a result, almost all the land that fell into the Ottoman common usage category (miri, matruka, and mawat) was determined to be property of the Israeli state.
Another significant regulatory modification that aided Israeli land expropriation was the Absentee Property Act, which was amended and applied in both Gaza and the West Bank through Military Order 58. This order broadened the definition of “absentee” to include any person who “left the area of the West Bank before, during or after the time of the 1967 war.” Notably, unlike the original 1948 law, the amended regulation did not restrict the definition to apply only to Palestinians in countries at war with Israel. Additionally, Order 58 incorporated the “good faith” provisions of the 1948 Act, thereby ensuring that even where a Palestinian was able to prove that he was not an absentee, the Israeli authorities’ actions with regard to the disposal of property would still stand.
The Absentee Property Act was also amended to allow for the assignation of wakf land, owned by Muslim or Christian organizations in the occupied territories. Amendment No. 3 (Release and Use of Endowment Property) granted the government authority to requisition religious properties, such as cemeteries and mosques, ostensibly for protection purposes.
Even where property did not fall into either state-owned or absentee land, the Israeli military authority used Jordanian eminent domain law, with some modifications, to justify land taking. Jordanian Law No. 2, Expropriation of Land for Public Purposes, permitted government acquisition of land for public use, provided that the expropriation had to be published in advance, individuals were given opportunity to object, fair compensation was required, and decisions were appealable in civil court. As modified by the Israeli government after 1967, the Expropriation Law eliminated the need for advance publication when authorized by the military command, transferred decision-making authority on compensation and appeals to an internal Israeli Objections Committee (an office of the Custodian of Absentee Property), and added a provision permitting forcible removal of the landowner if he refused to leave. This law was used by the occupation administration to expropriate privately-owned Palestinian land for construction of settlements and access roads for those settlements.
Israel’s land law regime in the occupied territories differs substantially from that employed after 1948 in one key respect. In 1950, the Transfer of Property Act officially transferred the title of abandoned Palestinian land to the State of Israel, but no similar piece of legislation has been enacted or applied to Israeli-controlled land in the occupied territories. In facial conformance with international law, Israel has used the “temporarily” requisitioned land of Palestinians to build hundreds of Jewish settlements in the occupied territories.
Nonetheless, Israel’s Supreme Court has validated Israeli expropriation of Palestinian land for settlement purposes and simultaneously held that Israel is bound by international law but free to pursue its expansionist goals. In the Beit El Toubas case, Palestinian landowners from a West Bank village brought suit in Israeli court after the military administration seized their property ostensibly for “essential and urgent military needs” but then proceeded to construct a Jewish civilian settlement there.
In its ruling, the Supreme Court acknowledged that Israel’s role in the West Bank was that of an occupier, and thus was subject to restrictions of The Hague and Geneva Conventions. However, the court upheld the land expropriation, on grounds that the “settlers served a military purpose by deterring and supervising terrorist Palestinian operations.” Under this legal guise, Israel has established a network of “security” settlements in the occupied territories. The land requisitioned for settlements and their future development remains indefinitely off limits for future Palestinian possession or use, as Israeli law prohibits “alien persons” from building on or leasing state land.
— Sherene Walid Awad is a JD candidate at Notre Dame Law School, US.
