Israel Should Let Individual Jews Buy Private West Bank Land, Army Lawyers Say

Currently, Israeli Jews are only allowed to do real estate deals there via a company and with the approval of the head of the Civil Administration

Palestinian children play outside their dwelling in al-Eizariya with the Jewish settlement of Maale Adumim in the background, in the West Bank, July 2019.
REUTERS/Raneen Sawafta

Legal opinions by the Defense Ministry and army state that individual Jews should be allowed to buy private land in the West Bank, a development that a source involved in real estate deals in the area called revolutionary.

He said residents of the settlements have been waiting for such a legal opinion for years.

>> How the Israeli army takes Palestinian land and hands it to settlers | Analysis

The opinions are now with Deputy Attorney General Erez Kaminitz, who is expected to confirm them with the backing of Attorney General Avichai Mendelblit.

According to the law still applied in the West Bank from the time it was under Jordanian rule, only Jordanians, Palestinians or “foreigners of Arab origin” are allowed to buy land in the West Bank. Israeli Jews are only allowed to do real estate deals there via a company and with the approval of the head of the defense establishment’s Civil Administration.

This law has led to the establishment of companies like Ze’ev Hever’s Amana, a big player in the real estate industry in the West Bank.

Military and Defense Ministry legal advisers issued the opinion in response to a query about whether the restriction on land purchases by Jews in the West Bank could be abolished. They said it could, though they disagree on the implications of such a decision and on the need for the approval of the Civil Administration chief.

“We believe that it is possible to work toward abolishing the distinction in Jordanian law between a person of Arab origin and a person not of Arab origin,” Maj. Tzvi Mintz wrote in the name of the army’s regional legal adviser.

“A ban on making real estate deals based on national origin raises a certain discomfort,” Mintz added, quoting from a report on a committee on the matter headed by former Supreme Court Justice Edmond Levy. The committee said such a ban infringes on a basic right in the Israeli legal system and constitutes discrimination.

Mintz noted that according to the concept of belligerent occupation applied in the West Bank, the army may only issue orders that benefit the local population, and “over the years it has been customary to treat only the Palestinian population as the local population.”

Defining the settlers as part of the local population would require the approval of the attorney general. Otherwise “the proposed change would have to be justified as benefiting the Palestinian population, which would certainly raise difficulties.”

As Mintz wrote, if the good of the local population is meant to refer only to the Palestinians, should the desire of the Palestinian population not to sell land to Israelis be taken into account, or should “some objective good” be taken into consideration?”

He gave as an example of an objective good “the economic benefit that would result from the liberalization of the land market that might assist in realizing a profit from the sale of land in the region.”

If so, he said, the latter concept, which the United States used in Iraq, could be used by the state to justify the change. Mintz wrote that another justification could be “the annulment of legislation with racist and discriminatory characteristics.”

Mintz said there was no legal impediment to changing the rule; the head of the Civil Administration “can permit land purchases in the area by any private individual without reference to origin.” But he warned that such an interpretation could be “perceived as an infraction of the laws of belligerent occupation. This could lead to significant international criticism, thus the government should weigh in on this aspect.”

Legal advisers to the Defense Ministry including Hanan Arbel also supported the change based on the idea that permission to buy land in the West Bank should not be based on national origin.

The advisers rejected Mintz’s warning about international criticism. “The possibility of land purchases in the area has existed since the 1970s via companies. An amendment to the legislation in a matter that provides a response to existing discrimination does not change the reality,” they wrote. “The proposed amendment will survive international criticism.”

The need to obtain permission for a real estate deal was meant to prevent the purchase of land by “hostile elements” when the West Bank was under Jordanian rule.

But now “this raises the question of the status of the applicant for a land purchase permit, including by an Israeli,” along with the perception of an Israeli “as a hostile element in circumstances in which the Israeli military government is the sovereign in the region,” the Defense Ministry advisers wrote.