How Israeli Laws Enable the Take Over of Palestinian Land
In February 2017, Israel’s parliament, the Knesset, passed the Regularization Law, a new law that “legalizes” outposts—Jewish settlements in the West Bank that were previously considered illegal under Israeli law because they were built without permits from or the official authorization of the Israeli government. The law had been in the works—and highly criticized—for months, before being passed shortly after the inauguration of US President Donald Trump, amidst a flurry of announcements about settlement expansion.
The significance of this law cannot be understated.
First, it is retroactive, which means that already existing outposts—many of which were slated for demolition—are now allowed to flourish. At the same time, the law denies Palestinian land owners the right to pursue legal claims over their land “until there is a diplomatic resolution of the status of the territories.”
Second, regardless of their varying legal statuses under Israeli law, both settlements and outposts are illegal under international law. Article 49 of the Fourth Geneva Convention states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” United Nations Human Rights High Commissioner Zeid Ra’ad Al Hussein commented in December 2016, “All Israeli settlements—whether outposts built without formal approval but often with the support of the Israeli authorities … or settlements approved by Israel—are clearly and unequivocally illegal under international law and constitute one of the main obstacles to peace.”
Reactions to this new law have been strong. Numerous nations—including the UK, France, Jordan, and Turkey—were quick to come out against the law. UN officials condemned the law, with UN Secretary General Antonio Guterres stating that the bill contravenes international law and UN envoy to the Middle East Nickolay Mladenov saying that it “crosses a very thick red line.” Israel’s own Attorney General, Avichai Mandelblit, likewise called the law unconstitutional and declared that he would not defend it in Israel’s high court.
The Regularization Law is the latest in decades of laws that have “legalized” the systematic dispossession and expropriation of Palestinian land by Israeli forces. To fully appreciate the weight of this law, it is important to understand the historical origins of the conflict over land between Israel and Palestine, as well as the decades-long history of the use of state laws to expropriate land in the region.
At the end of the 19th century, the roughly 26,000km2 (nearly 2.6 million ha) at the heart of the Israeli-Palestinian conflict were part of the Ottoman Empire. Around this same time, the modern Zionist movement emerged in Europe, and early waves of European Jewish immigration to Palestine began.
By 1916, the Ottoman Empire was faltering. The Ottomans had aligned with the Central Powers during the First World War and were facing off internationally against the Allied forces. They were also facing conflict internally. June 1916 saw the start of the Arab Revolt, which aimed to create a single Arab nation within the Ottoman Empire. The revolt had the support of the British, including the promise from the British High Commissioner for Egypt, Sir Henry McMahon, that if the Arabs helped Britain win the war, the British government would recognize and support Arab independence in the Ottoman Empire.
The following year, another promise was made by the British, this time between British Foreign Secretary Lord Arthur Balfour and the British Zionist Organization. The Balfour Declaration reads, in part:
“His Majesty’s Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country.”
In addition, in 1916, anticipating the demise of the Ottoman Empire, Britain, France, and Russia secretly signed the Sykes-Picot Agreement, effectively carving up control of the Middle East. According to the agreement, control of Palestine was not given to any of the signatories, but was meant to be housed under an international regime. This never transpired. Instead, in the early 1920s, the League of Nations, the precursor to the United Nations, passed the “Palestine Mandate” giving temporary administrative authority of Palestine to Great Britain. The League’s Mandate system was supposed to help territories establish their own sovereignty. However, in keeping with the promises made in the Balfour Declaration, the British ensured that the text of the Palestine Mandate also contained numerous provisions outlining the establishment of a Jewish national home in the region.
“The British Mandate of Palestine was thus based on an inherent contradiction: the simultaneous establishment of an independent state of Palestine for all its citizens on the territory of Mandate Palestine, and a Jewish national home within or on that same territory.”
Under the British Mandate and in the face of rising anti-Semitism in Europe, Jewish immigration to Palestine in the 1920s increased. This was aided in part by British laws that allowed Jewish people living abroad to gain Palestinian citizenship in the region. To help new Jewish immigrants establish themselves in Palestine, groups such as the Jewish National Fund bought up large tracts of land, often from absentee Arab landlords—a practice that it had begun earlier in the century—for Jewish settlement, evicting existing Arab tenant farmers from the land.
By the 1930s, Arab resistance to the British occupation was increasing, due to frustration over its failure to grant Palestine independence. This culminated in a second Arab Revolt from 1936-1939. The revolt did not succeed, but it did lead to the issuance of a British White Paper in 1939 that put limits on Jewish immigration and land purchases. The White Paper also promised the British withdrawal and full independence of the region within 10 years. The paper was never enacted.
By the mid-1930s, Hitler was gaining power in Germany, leading to the start of WWII and the horrors of the Holocaust that ravaged Jewish communities and culminated in one of the worst atrocities of the 20th century. Jewish immigration to Palestine accelerated during the period, and involved new land purchases and Jewish settlements, resulting in additional Palestinian displacement. Between 1922 and 1947, “an estimated 100,000-150,000 Palestinians—nearly one-tenth of the Palestinian Arab population—were expelled, denationalized or forced to leave their homes.”
In 1947, in the aftermath of the Second World War and amid growing conflict in the region, Britain notified the newly formed United Nations that it intended to end its Mandate over Palestine. A Special Committee on Palestine (UNSCOP) was established to determine the fate of the region. The committee was not able to reach consensus, but the majority of its members supported the creation of two states—one Arab and one Jewish. On November 29, 1947, the United Nations General Assembly passed Resolution 181 (II) proposing that Mandate Palestine be divided into two regions (see map).
According to Resolution 181, the Jewish state would be comprised of 56 percent of Mandate Palestine, the Arab state 44 percent, and the land around Jerusalem, including Bethlehem, would become an international area. Awarding the Jewish state a larger portion of land was reportedly based on an assumption that Jewish immigration to the region would increase. However, “nearly half the population of the proposed Jewish state consisted of Palestinian Arabs, who owned nearly 90 percent of the land.”
Within days, fighting began, marking the beginning of what is now known by the Palestinians as the Nakba, or “catastrophe” and by the Israelis as the War of Independence.
Over the next year, Britain formally withdrew from Mandate Palestine, the State of Israel was declared, and the 1948 Arab-Israeli war erupted. Throughout the fighting, a mass exodus of Palestinians took place.
The war ended in 1949 with the signing of armistice agreements, which divided Mandate Palestine into three regions: Israel controlled 78 percent of the former Mandate Palestine; Jordan controlled East Jerusalem and the West Bank; and Egypt controlled the Gaza Strip. The boundaries between the three regions are known as the “Green Line.” The Arab state, first promised by the British and then detailed in the UN Partition Plan, was never created. During the Nakba, between 700,000 and 900,000 Palestinians were forcibly displaced.
Legalizing Dispossession in the State of Israel
Over the next 16 years, conflict and fighting persisted in the region. At the same time, the newly created State of Israel began constructing a system of laws to expand and consolidate its claims over vast tracts of land as well as its general control of the territory.
Laws, such as the Area of Jurisdiction and Powers Ordinance 5708-1948, were passed to expand Israel’s sphere of influence beyond the borders established in the UN Partition Plan. Other laws allowed Israel to take control of and expropriate Palestinian lands for a variety of state purposes. For example, an Emergency Regulation passed in 1949 gave the Ministry of Agriculture the authority to declare land formerly owned by refugees as “waste” or “uncultivated” lands and seize them for state use. Land could also be confiscated for “public purposes” including the building of government offices, or for national parks or reserves. Finally, laws were passed with the aim of preventing refugees from returning to their villages and land after the war.
One particularly powerful law was the Absentees’ Property Law. Enacted in 1950, the law shifted ownership and land rights for property owned by anyone deemed an “absentee” by Israel to the head of the newly created Office of the Custodian of Absentees’ Property (also known simply as “the Custodian”). An “absentee” was any owner of land within the “area of Israel” who left that property between November 29, 1947 and September 1, 1948, and: was a citizen or national of one of seven Arab nations; left to go to any part of Palestine outside of Israel; or left to go to any area occupied by the Arab forces fighting Israel. This effectively legalized under Israeli law the dispossession of Palestinian land that had taken place during the Nakba, thus denying Palestinians the right to reclaim the land they fled from during the war.
The law affected more than just land. It also transferred businesses to the Custodian, allowed evictions and the demolition of property on absentee land, and ultimately, paved the way for the mass settlement of Jewish people on Palestinian land. The law also created a new class of people—present absentees—consisting of people who, at the time of eviction, were currently present on their land, but were considered absent during the time period stated in the law.
A comprehensive report on land laws by COHRE and BADIL estimates that between 4,200—5,800 km2 [420,000—580,000 ha] of land was appropriated under the Absentees’ law. In addition, between 1948 and 1953, 350 of the 370 newly created Jewish settlements were established on lands seized using the law.
Legalizing Dispossession in the Occupied Territory
In June 1967, war broke out again. Over the course of six days, Israeli armed forces captured the Gaza Strip, West Bank, Sinai Peninsula, and Syrian Golan Heights. This period is known by the Palestinians as the Naksa, or “smaller catastrophe.”
“More than one-third (400,000 to 450,000) of the Palestinian population of that area were displaced during the war. Half of them (193,500) were refugees of 1948 and displaced for a second time, while 240,000 were displaced from the West Bank and Gaza Strip for the first time. Up to 95 percent of these displaced went to Jordan, while some found refuge in Syria and Egypt. Israel expropriated 849 km2 [84,900 ha] of Palestinian land, including more than 400 km2 [40,000 ha] owned by Palestinians who had been displaced from the West Bank and Gaza Strip during the war.”
After the war, Israel essentially controlled all of Mandate Palestine and placed the Occupied Palestinian Territory under military rule. It is estimated that between 1967 and 2014, over 1,200 military orders were issued, including orders that imposed curfews, denied Palestinians the freedom of movement, seized property, increased taxes on daily goods, and more.
In a similar fashion to the aftermath of the 1948 Arab-Israeli war, the post-1967 military orders created an intricate framework for the control and expropriation of land. For instance, several military orders issued in 1967 imposed variations of Israel’s 1950 Absentees’ Property Law. However, the military orders took the concept of “absentee land” even further.
Military Order 58, passed in July 1967, dictated that land owned by anyone who left the occupied territory before, during, or after the 1967 war would now be given to the Custodian. However, the law also contained a critical clause: “any transaction carried out in good faith between the Custodian of Absentee Property and any other person, concerning property which the Custodian believed when he entered into the transaction to be Absentee Property, will not be void and will continue to be valid even if it is subsequently proved that the property was not at the time Absentee property.” This “good faith” clause effectively made it impossible for courts to side with Palestinian landowners.
Three months later, Military Order 150 was passed, increasing the definition of “absentee property” to include any property that is owned or controlled by a resident of a “hostile” state.
Another associated and far-reaching order was Military Order 59, “Order Concerning State Property,” which passed in July 1967. This order defined “state property” as any property belonging to a “hostile state” or arbitration body associated with a “hostile state.” It also contained the same “good faith” clause as Military Order 58, making it extremely difficult to argue in a court of law.
“By 1979, Israel had used MO [Military Order] 59 to take over some 527,000 dunum (527 km2 [527,000ha]) of lands in the West Bank formerly held by the Jordanian Government… that same year, Israel intensified its process of surveying, identifying and confiscating lands under MO 59. It identified an additional 1.5 million dunum (1,500 km2 [1,500,000 ha]) of land in various categories—about 26 percent of the West Bank—that could still be confiscated in this manner.”
A second hallmark of the post-1967 occupation was the emergence of Israeli government-sanctioned Jewish-only settlements in the Occupied Palestinian Territory. This was guided by a series of government plans that entrenched settlement building into the fabric of Israeli rule. The Alon Plan, for example, “advocated the establishment of a string of Israeli settlements ensuring a ‘Jewish presence’ and constituting a preliminary step leading to formal annexation.” The plan was re-written several times in the aftermath of the 1967 war, and while it was never formally adopted by the government, it provided the basis for the establishment of settlements in the West Bank.
The Drobless Plan, written by the head of the World Zionist Organization’s settlement division in 1978, took government-sanctioned settlement building one step further. “Drobless proposed encircling, then fragmenting, Palestinian communities. Settlements could be concentrated along the mountain ridge and in the heart of Palestinian communities in the West Bank… Other proposals included constructing a road network to bypass Arab towns and villages, surround Jerusalem, and link Jewish settlements to each other and to Israel.”
In Drobless’ own words:
“The civilian presence of Jewish communities is vital for the security of the state… There must not be the slightest doubt regarding our intention to hold the areas of Judea and Samaria forever… The best and most effective way to remove any shred of doubt regarding our intention to hold Judea and Samaria forever is a rapid settlement drive in these areas.”
By the end of 1993, there were 247,000 Israeli-Jewish settlers living in the West Bank and East Jerusalem alone.
Continued Occupation, Continued Dispossession
Much has transpired since 1967, including the return of the Sinai Peninsula to Egypt, two Intifadas, and the building of the separation wall in the West Bank, amongst other events. Importantly, the occupation of Mandate Palestine remains today.
One noteworthy change to the control of land, however, came about as part of the Oslo Accords, which divided the West Bank into three distinct areas, with different administrative and military control.
“In these accords the West Bank was divided into three areas, A, B and C. This division does not reflect a geographic reality, but rather an administrative division of the region. The newly created Palestinian Authority was to have exclusive control of Area A, and civilian control of Area B, whereas Israel was given the control over security in Area B and the full control over the remaining Area C. This area covers more than 60 percent of the territory of the West Bank, Area B 22 percent and Area A 18 percent. Most of the Palestinian residents of the West Bank live in Areas A and B, which are subdivided into 165 separate units of land that have no territorial contiguity. This division was meant to be temporary and its purpose was to enable an incremental transfer of authority to the Palestinian Authority. This administrative partition was not designed to deal with the needs of long-term demographic growth and development. However, this ‘temporary’ arrangement has remained in force for nearly twenty years.”
The Oslo Accords also contained provisions regarding settlement building. Chapter 5, Article 31(7) of the second Oslo Accord reads: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
However, as explained by B’Tselem in a 2002 publication, settlement building continued:
“The government made a promise to the United States that it would not establish new settlements and would halt the expansion of the existing settlements, with the exception of construction to meet the ‘natural growth’ of the local population … the term ‘natural growth’ was never precisely defined, and the vague nature of the term has allowed Israel to continue to expand the settlements while avoiding direct confrontation with the United States Administration. Since the signing of the Declaration of Principles [Oslo Accord I], in 1993, all Israeli governments have interpreted this phrase as including not only the natural growth of the existing population (i.e. birth rates), but also the growth of the population by migration. At the same time, the governments themselves have strongly encouraged migration from Israel to the settlements by offering generous financial benefit and incentives.”
“The peace process between Israel and the Palestinians did not lead to the dismantling of even one settlement, and the settlements even grew substantially in area and population during this period. While at the end of 1993 (at the time of the signing of the Declaration of Principles) the population of the settlements in the West Bank (including settlements in East Jerusalem) totaled some 247,000, but the end of 2001 this figure had risen to 375,000.”
By the end of 2015, there were 127 government-sanctioned settlements and approximately 100 settlement outposts, housing an estimated 588,000 Israeli-Jewish settlers in the West Bank alone.
Today, laws continue to be enacted that facilitate settlement building and displacement, the expropriation of land, and the demolition of Palestinian homes and property in both the State of Israel and the occupied territory. For example, the Memorandum of Law on the Regulation of Bedouin Settlement in the Negev (Naqab) is being promoted by Israeli government ministries. According to the Adalah Legal Center, “the fundamental aim of the plan is … to dispossess and forcibly displace c. 80,000-90,000 Palestinian Arab Bedouin citizens of Israel from around 36 villages, which are unrecognized by the state, to a segregated, concentrated area in the northern Naqab.” Similarly, the Kaminitz Bill—a proposed amendment to the 1965 Planning and Building Law, put forward by Deputy Attorney General Erez Kaminitz—is currently under consideration. If passed, the bill would expand Israeli administrative powers to issue, and limit the ability of the courts to review and contest eviction orders. This could expedite the eviction process, giving additional power to a government that has, for decades, used laws to evict Palestinians and expropriate their land.
These new laws are but the latest additions to an intricate and discriminatory legal system that has fanned the flames of a century-long conflict. In the words of Attorney Suhad Bishara, “law [has become] a tool of war, a tool of discrimination, a tool of annexation.” This echoes the conclusions of a 2017 UN report that concluded that, in part through the laws outlined in this brief, Israel has established an apartheid regime over the Palestinian people.
While these laws continue to pass, Palestinian refugees and Internally Displaced Persons (IDPs) constitute the largest and longest-standing case of displaced persons in the world. It is only when the situation of Palestinian refugees and IDPs is understood widely within the context of systematic displacement and expropriation that this situation might change.