Land, Law, And the Jewish Settlement in the WB

8/3/2019 Land, Law, And the Jewish Settlement in the WB

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Land, Law, and Jewish Settlement in theWest Bank


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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)


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The Hague Regulations, 1907:Convention Respecting the Laws and Customs of

War on Land

Section III: Military Authority over the Territory of the HostileState.

Outcome of extended work of legal experts and courts duringthe 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 ofthe ousted sovereign (not the rights of the local population).


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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 orderand 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 (protectedpersons) e.g. Humane treatment, honor of women,

equal treatment, no collective punishment, etc.


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Occupied Territory in 1948-49?

In 1948, the former sovereign in the territoryconquered by Israel was Britain, who transferred theissue to the U.N. in 1947 and withdrew fromPalestine.

U.N. General Assembly Resolution 181 (29November 1947) endowed the State of Israel withinternational legitimacy.

More than 40 countries recognized Israel between1948 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 areasof Israel not allocated to the Jewish state by

Resolution 181.


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The International Communitys Approach

to the Outcome of the 1967 War

Israel did not annex the territories and didnot declare them to be under Israelisovereignty.

Formally, the occupation was not acceptedby the international community.

U.N. Security Council Resolution 242(November 1967): Emphasizing theinadmissibility of the acquisition of territory by

war


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

The authority of the legitimate power

having in fact passed into the hands ofthe occupant, the latter shall take all themeasures in his power to restore andensure, as far as possible, public orderand [civil life], while respecting, unlessabsolutely prevented, the laws in force inthe country.


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Art. 64 of the 4th Geneva Convention

The penal laws of the occupied territory shall remain inforce, with the exception that they may be repealed orsuspended by the Occupying Power in cases where theyconstitute a threat to its security or an obstacle to theapplication of the present Convention.

Subject to the latter consideration and to the necessity

for ensuring the effective administration of justice, thetribunals of the occupied territory shall continue to functionin respect of all offences covered by the said laws.

The Occupying Power may, however, subject thepopulation of the occupied territory to provisions which are

essential to enable the Occupying Power to fulfill itsobligations under the present Convention, to maintain theorderly government of the territory, and to ensure thesecurity of the Occupying Power, of the members andproperty of the occupying forces or administration, and

likewise of the establishments and lines of communicationused by them.


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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 inthe West Bank.

Israeli officials did not recognize Egypt and Jordanas sovereigns in the Gaza Strip and the West Bankrespectively. In their eyes, recognizing a de jureobligation implied recognition of previous Egyptianand Jordanian sovereignty.

Nonetheless, Israel has repeatedly expressed itscommitment to apply international law in the

territories on its own volition (De facto).


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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 customaryinternational law and treaty-basedinternational law. The former is enforceable inIsraeli courts, while the latter is enforceableonly if explicitly specified by statute.

HCJ rulings regard the Hague Regulations(1907) as customary international law and theGeneva Convention (1949) as treaty-basedinternational law.


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Military Manifest 2Regarding 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 7June 1967 will remain in force, to the degreethat it does not contradict this or any othermanifest or order of my issue, or changesstemming from the establishment of I.D.F. rulein the region.

Jerusalem, 7 June 1967General Haim Herzog

Commander of I.D.F. Forces in the West Bank


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Occupation Law

in Theory Local Law

Security Legislation

International Law

Israeli Admin. Law

IsraeliLaw

Penetration ofIsraeli Law inVarious Ways,

Primarily after 1977

Occupation Law inthe West Bank

Diffusion of law.

Under Israeli control andshaped to achieve Israeli goals.

The Israeli Supreme Courtprovides supervision andlegitimation.

Israeli goals: security, control,political interests, economicinterests, Jewish settlement,and future annexation.


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The Allon Plan (1967-1977)

Land for Jewish

SettlementPre-`48 Jewish-OwnedLand.

Abandoned Land (MO 58).Land Registered in the

Name of the JordanianGovernment (MO 59).

Hilly Desert Land belonging

to no one.

Land Seized for Military

Purposes.


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Israeli Policy on the Future of the WestBank after 1977 and the Rise of the Likud

-- Full incorporation into the State of Israel through

extensive Jewish settlement throughout the West Bank. --

Th El M h D i i O t 1979


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The Elon Moreh Decision Oct 1979Duweikat v. Govt. of Israel, HCJ 390/79

Previous Israeli case law authorized civilianJewish 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 ofprivate land in Rujayb village near Nablus.

The Court ruled that the dominant consideration

for the settlement was political/ideological - notmilitary - and annulled the seizure order, indicatingthat it would no longer allow the state to seizeprivate land for civilian settlement without judicialreview.


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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 ministerspublicly 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 Appealsadjudicated by IDF Appeal Boards, according tooccupation statutes and IsraeliCaseLaw.

1982: In Al-Nazir decision, HCJ rules that state land

declarations are legal under international law.


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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 settlementhad not been completed, and declaration of large areasas government property.

Maps issued to local makhatir, who were obligated to

relay the authorities intentions to anyone who mightobject.

Declarations could be appealed to I.D.F. Appeal Boardsin the West Bank.

Palestinian appellants faced significant difficulties.


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HCJ 285/81


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HCJ 285/81Al-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 inlocal law and therefore a contravention of internationallaw.

Decision authored by Justice Meir Shamgar (MAG,1961-68; AG, 1968-75; SC Pres., 1983-95).

Ruled that state land declarations did not change localland law and in fact provided local inhabitants with anopportunity to challenge the states taking possessionof government property.

Short-term significance: land for Jewish settlement.

Long-term significance: progress towards de-factoannexation.


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Admin. Sett.Officer

State ClaimPrivate Claim

DistrictCourt

Dispute

Appeal

Supreme Court asCourt of Appeals

Mukhtar

AppealBoard

Appeal

Attack

Supreme Courtas HCJ

Task: Limited judicialreview (legality of thedecision).

Declaration

Land Settlement DisputesState Land Declaration Disputes

Task: Broadjudicial review.

Task: Publicinvestigation of aparcels

ownership.

Task: Assessment ofwhether declared

land is govt. property.

Region Based Internal Diffusion of Law


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Region-Based Internal Diffusion of Law

Region A

Primary Legislation Judicial DoctrinePolicy / Secondary LegislationParliament Supreme CourtExecutive Branch

Sociopolitical Space

Region BRegion CThe Galilee as a

A law generating region.NegevWest Bank


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Land in the West Bank underInternational Law

Art. 43 (Hague) Art. 52 (Hague)Requisitions in kind and

services shall not be demanded from municipalitiesor inhabitants except for the needs of the army of

occupation. Art. 55 (Hague)The occupying State shall be

regarded only as administrator and usufructuary ofpublic buildings, real estate, forests, and

agricultural estates belonging to the hostile State,and situated in the occupied country. It mustsafeguard the capital of these properties, andadminister them in accordance with the rules of

usufruct.

S


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Jewish Settlement in the West BankUnder International Law

The Hague Regulations stress the temporarynature of belligerent occupation, and theestablishment of permanent settlements contradictsthis principle.

Art. 49 (Geneva)Individual or mass forcibletransfers, as well as deportations of protectedpersons from occupied territory to the territory ofthe Occupying Power or to that of any othercountry, occupied or not, are prohibited, regardlessof their motiveThe Occupying Power shall notdeport or transfer parts of its own civilian populationinto the territory it occupies.


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Legal Geopolitical ActivityAnd the Struggle over the Land

Use of law according to prevalentinterpretation and implementation to securerights.

Modification of interpretation andimplementation to expand rights (supportedor rejected by case law).

Modification of statute to create rights(proactively or retroactively).

Manipulative use of legal argument to justify

illegal action

Documents

Land, Law, And the Jewish Settlement in the WB