December 2008, Summary
In March 2005, the government of Israel adopted the opinion it had commissioned from Attorney Talia Sasson, former head of the Special Tasks Department in the State Attorney's Office, regarding unauthorized outposts. In doing so, it set, for the first time, detailed criteria for examining the legality of Israeli communities in the West Bank according to local law.
All the settlements in the West Bank are illegal under international humanitarian law, whether or not they are officially recognized by the Israeli government. The various governments of Israel ignored this prohibition and established more than 130 recognized settlements throughout the West Bank and on the territory it annexed to Jerusalem. The population of these settlements is now almost one-half million persons. Unlike previous reports, in this report B'Tselem examines whether Israel has, at the very least, met its declared commitment to respect the local law.
According to the Sasson report, to be legal under local law, an Israeli settlement must meet each of the following four criteria:
- the Israeli government issued a decision to establish the settlement;
- the settlement has a defined jurisdictional area;
- the settlement has a detailed, approved outline plan;
- the settlement lies on state land or on land that was purchased by Israelis and registered under their name in the Land Registry.
According to B'Tselem's research, Ofra meets only the first of these conditions: in 1979, four years after its establishment, the government declared it an official community. However, no jurisdictional area has ever been defined for Ofra, no detailed outline plan has been approved for the settlement, and no lawful building permits were ever issued for it. Thus, the entire community of Ofra, with its hundreds of residential units, was built unlawfully.
Segment of a map indicating the status of land in Ofra. All the colored areas are recorded in the Land Register on the name of Palestinians. To download the map, click here.
The reason that a jurisdictional area and an outline plan were never approved for Ofra is not governmental objection to the establishment of the settlement; rather, it is the failure to meet the fourth condition. Large sections of the settlement's built-up area are registered under Palestinian names in the Land Registry, and Israeli settlements may not be built on land of this kind, according to government decisions and Israeli High Court rulings.
The built-up area of Ofra spans some 670 dunams [4 dunams = approx. 1 acre]. According to information given to B'Tselem by the Civil Administration, none of this area is state land. Of these 670 dunams, about 180 are included in an expropriation order issued by the Israeli military commander in 1977. According to the Civil Administration, this order merely “executes” an expropriation order issued by the Jordanian government in 1966. B'Tselem's research reveals several problems that render this claim doubtful:
- In 1966, the Jordanian government announced its intention to expropriate the land and build an army camp on it, but the expropriation process was not completed while the land was under Jordanian rule. The land was not registered in the Land Registry under the name of the Jordanian government, despite the legal requirement in the case of land expropriation.
- While the Jordanian government intended to expropriate 208 dunams of land, the Israeli expropriation order covers 265 dunams, such that in “executing” the Jordanian expropriation, Israel added 57 dunams to the original order.
- The 1977 expropriation order was issued for the establishment of Ofra, as opposed to the original purpose of the Jordanian government, even though the law pursuant to which the expropriation was made does not enable expropriation of land for the establishment of Israeli settlements.
The built-up area of Ofra lies on land that is registered in the Land Registry under the names of Palestinians from the villages of ‘Ein Yabrud and Silwad. B'Tselem obtained current (2008) land abstracts of 43 lots, out of which 210 dunams lie within Ofra's built-up area, outside the area expropriated by the military commander's order.
The land included in the military commander's expropriation order, together with the lots for which B'Tselem obtained land abstracts, amount to some 390 dunams. Thus, in total, at least 58 percent of Ofra's built-up area lies on land registered under the names of Palestinians in the Land Registry.
The Ofra Cooperative Society, the association of the settlement's residents, contends that it purchased land in the area from its Palestinian owners. However, although the law requires it, the Society did not register these lots in the Land Registry, and at a hearing before the Israeli High Court, it did not present any purchase documents. The State Attorney's Office announced to the court that the lots under discussion were registered under the names of Palestinians and that the claim of purchase by the Society was a “mere claim” that had never been proved.
The existence of Ofra is responsible for extensive violations of the human rights of Palestinians living in the area. The immediate violation is of the right of property of Palestinian landowners, on whose lands Ofra was built. The establishment of Ofra has also resulted in infringement of the right of property of ‘Ein Yabrud residents, who own farmland adjacent to the settlement's built-up area. Their access to this land has been severely restricted in recent years, impairing their ability to gain a livelihood from farming the land. The geographical location of Ofra in the heart of a densely-populated Palestinian area creates a partition between Palestinian villages in the area and impedes the villagers' freedom of movement.
Recently, Israeli officials have repeatedly emphasized the state's commitment to dismantle the unauthorized outposts in the West Bank. Given that, under the criteria adopted by the government, Ofra is an unauthorized outpost, Israel must dismantle the settlement, return to the Palestinian landowners the land that was unlawfully taken from them, and remunerate them for the use of their land.