In Unusual Decision, Panel Rules That Disputed West Bank Tract Doesn't Belong to Israel

The military panel’s ruling could have far-reaching implications for the entire practice of declaring areas in the West Bank as state lands, says lawyer for Palestinians who claimed ownership.

A 200-dunam tract of land between the settlement of Kochav Yaakov and the Palestinian village of Kafr Aqab.
Emil Salman

In a highly unusual move, an appeals committee of the Civil Administration in the West Bank has overturned a decision to declare an area near Ramallah as state land.

The panel, comprised of military judges, ruled that the procedure by which the 224-dunam tract was declared state land in 2013 was flawed. It also said the state hadn’t sufficiently publicized its intent to issue the declaration.

Sources familiar with such land cases said the decision was highly unusual, especially since dozens of Israeli-owned buildings, including permanent houses, have already been built on this land.

The panel’s decisions aren’t legally binding; they are merely recommendations to the West Bank’s military commander. But experts say the commander rarely disregards the committee’s recommendations, and if he did so, the state would have trouble defending the decision should it be challenged in the High Court of Justice.

The land in question lies between the settlement of Kochav Yaakov, north of Jerusalem, and the Palestinian village of Kafr Aqab, which straddles Jerusalem’s municipal border. It was declared state land based on aerial photographs which ostensibly showed it wasn’t under cultivation. But the appeals committee found that earlier aerial photographs did show the land being cultivated.

Map showing the location of the disputed West Bank territory.

Under Ottoman law, which applies in the West Bank to this day, a person acquires ownership of land if he cultivates it regularly for 10 years. The photos used to show that the land wasn’t cultivated dated from 1969, two years after Israel captured the West Bank in the Six-Day War.

But the appeals committee ruled that since Jordan, which controlled the territory from 1948-67, had begun regularizing land ownership procedures in 1961, the photos relevant to any decision would be from before 1961.

The state said it couldn’t find a photograph apparently taken in 1956. But the panel criticized this decision, saying the state hadn’t done enough to locate this photo given that it was critical to determining the land’s ownership. It also said that if the 1956 photo couldn’t be found, the decision would have to be based on a 1944 photo – which did seem to show the land under cultivation.

Emil Salman

The panel was ruling on two separate appeals. One was by a group of Palestinians, represented by the Yesh Din organization, who claim ownership of the land. Another was by Likud activist Moti Kugel, who claims to have bought the land from its Palestinian owners.

If the state isn’t able to find proof to support its declaration of the area as state land, then the competing claims of Kugel and the Palestinians will have to be adjudicated. Should the Palestinians succeed in proving ownership, settlers will likely have to evacuate the houses built there.

The Palestinian appellants also complained that they weren’t informed before the area was declared state land, and here, too, the appeals committee decided they had a point. It therefore urged the Civil Administration to change its procedure for publicizing such decisions, so as to ensure that people who might want to challenge a declaration receive enough advance notice to do so.

The state argued that it did post signs warning of the impending declaration on the land in question. But attorney Shlomy Zachary, who represents the Palestinian appellants, countered that Palestinians had no way of seeing these signs, as they haven’t been able to access the land since the settlers’ houses were built there.

Zachary said the panel’s ruling could have far-reaching implications for the entire practice of declaring areas in the West Bank as state lands. He voiced hope that it signaled an end to the “corrupt relationship between criminals and the law enforcement agencies, which are willing to ride roughshod over the law to satisfy the appetite for illegal building.”

Kugel’s attorney, Daniel Kramer, said the fact that only three Palestinian appellants could be found bolsters his client’s claim that he purchased the land from its owners.