Israel Presents: How to Legalize West Bank Settlements Built on Private Palestinian Land

Committee presents unprecedented recommendations to legalize thousands of homes built on privately-owned Palestinian land in West Bank settlements

Yotam Berger
Yotam Berger
FILE PHOTO: Orthodox Jews sit looking at the view while right wing Israeli settlers attempt to establish an unauthorised outpost in Givat Eitam a hilltop above the Palestinian town of Bethlehem in the West Bank.
FILE PHOTO: Orthodox Jews sit looking at the view while right wing Israeli settlers attempt to establish an unauthorised outpost in Givat Eitam a hilltop above the Palestinian town of Bethlehem Credit: MARCO LONGARI / AFP/ מרקו ל
Yotam Berger
Yotam Berger

The committee on legalizing the issues of land ownership for the Jewish settlements in Judea and Samaria has finished its work and presented its final report. The 200-page report includes detailed – and unprecedented –recommendations intended to legalize thousands of homes built without proper permits throughout the West Bank, sometimes on what is privately-owned Palestinian land.

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The report examined all forms of unauthorized construction in the settlements and proposed a number of solutions to allow the legalization of thousands of housing units.

The committee presented its report two months ago to Justice Minister Ayelet Shaked, Defense Minister Avigdor Lieberman, Agriculture and Rural Development Minister Uri Ariel and Attorney General Avichai Mendelblit.

The defense, justice and agriculture ministers are responsible for implementing the committee’s recommendations. Shaked said that she hopes the team established in the Prime Minister’s Office to implement the recommendations will act quickly due to the urgency of the need to legalize the settlements.

“We are acting responsibly and creatively and within a number of weeks we will present a comprehensive and systematic operational plan to legalize the outposts,” added Lieberman.

The committee was established as part of the government coalition agreements between Likud and Habayit Hayehudi, and after a security cabinet decision on the matter. The members of the committee, headed by now Jerusalem District Court judge Haya Zandberg and the former head of the Civil Law Division in the State Prosecutor’s office, includes Dr. Chagai Vinizky of the Hebrew University in Jerusalem and the Defense Ministry’s former legal adviser Ahaz Ben Ari. Zandberg was appointed to the bench earlier this year with the Shaked’s active support.

The 'blue line'

The first of the recommendations concerns a shift in policy on how the official boundaries of settlement communities are treated.

Israeli settlers start to build a new illegal outpost north of the West Bank Palestinian village of Ain al-Baida on October 25, 2016Credit: JAAFAR ASHTIYEH / AFP

In the past, the IDF’s Civil Administration in the West Bank had a staff that examines these borders, known as the community’s “blue line.” This team was tasked with marking them precisely and checking that they include only lands owned by the state. However, as mistakes were made in the past in drawing these boundaries, many now include privately-owned Palestinian land. In the past, these plots were removed from the community's jurisdiction and retroactively disowned by the state.

Now the Zandberg Committee has recommended stopping the work of the “blue line” team. As for the structures built on such land, which were retroactively declared to be private land after the homes were completed on what was initially considered state land, the committee recommends legalizing such construction. The legal basis for this is what is known as the Market Overt (Open Market) principle concerning property ownership, in which transactions conducted in good faith under certain conditions are considered valid – even if they have certain legal faults, such as in the sale of stolen goods.

Such a rule could lead to the legalization of thousands of unauthorized housing units in both large and small settlements all over the West Bank.

What complicates land ownership matters in the West Bank is that Israeli law does not apply to property ownership there. Instead, the property laws are broadly based on Ottoman Turkish law, even though both the British and Jordanians ruled the territory before Israel took possession in 1967.

Generally, under Ottoman land laws, land is acquired by farming and working it. Therefore, when the IDF Civil Administration examines old aerial photographs and finds land that was once farmed, even if it is now inside a settlement, that land is retroactively categorized as privately-owned Palestinian land – even if it is not known to who it belongs, if anyone.

At the same time, unworked land may be declared to be state-owned – if the land registry has no other registration or status for it.

For example, ownership of some of the land was registered and legalized under the Jordanians from 1948 to 1967. They began conducting a process of examining the land ownership and determining precisely who the owners were, recording it in the official land registry. These are the privately-owned Palestinian lands with registered owners.

Other parcels were in various stages of this process in June 1967, when Israel took control of the West Bank; others had not yet been examined at all. This is how some lands, though they were farmed at the time, are not considered to be state lands today, but at the same time their owners are unknown and unregistered.

Bridging West Bank 'islands'

The committee’s second recommendation concerns cases in which the settlement is built on state-owned land, but is considered an “island” in the middle of land that is not state-owned. For example, this is rather common when the community is built on the top of a mountain or hill, but the land below it in the valleys is private agricultural land. In planning terms, the committee is recommending using “the principle of flexibility for adjacent areas,” in which land can be zoned for building more easily if it is adjacent to already constructed areas.

The purpose of this recommendation is to allow the construction of access roads or other development for “isolated” settlements surrounded by land that is not state-owned. The committee also made other recommendations in such cases, such as building bridges or tunnels to access these settlements. This is because “the ownership underground and [in the air] above the ground belongs to the state.” This would allow the construction of tunnels under privately-owned Palestinian land or bridges over it.

In addition, the committee recommends allowing the use of “roads intended for public purposes” or “the expropriation of land for the purpose of an access road to a community,” all to be built on the privately-owned land.

The committee also proposed another way to legalize “existing communities that were expanded” while “exceeding the boundaries of the lands held legally.” This is meant to apply to neighborhoods and unauthorized outposts on land that is not state land, but which were built as extensions of legal communities that were built on state-owned land. The committee recommended avoiding demolishing these homes because of the “delay” between the two types of legal statuses. The committee said that in general, “these structures were built over a decade ago, without any protest and with the support of the state.”

One of the regular participants in the committee’s meetings was attorney Amir Fisher, the “adviser on settlement affairs” to Shaked; as well as Kobi Eliraz, the Defense Minister’s adviser on settlement affairs. Mendelblit headed the committee before he was appointed attorney general. Shaked chose Zandberg to replace him, even though she had no previous experience with the issue.

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