Using a complex legal-bureaucratic mechanism, Israel took control of some 50 percent of the land of the West Bank, primarily for establishment of the settlements and preparation of land reserves for their expansion. The main means used for this purpose is declaring and recording the land as “state land.” This procedure, which began in 1979, is based on the manipulative application of the Ottoman Land Law of 1858, which was in force on the eve of the occupation. The mechanism resulted in the declaration, mostly between 1979-1992, of 913,000 dunams as state land, which comprise 16 percent of the West Bank. The other methods used, each based on a different legal basis, were requisition for “military needs,” declaration of land as “abandoned property,” and expropriation of land for “public needs.” In addition, Israel has aided citizens in purchasing land on the “open market.” Simultaneously, in many cases, settlers independently seized control of private Palestinian land, while Israeli officials failed in almost all cases to enforce the law and return the land to its lawful owners.
During the course of the second intifada, Israel also surrounded settlements with rings of land closed to Palestinians, did nothing to eliminate the phenomenon of piratical closing of land, and even retroactively approved such piratical closing with a variety of means, among them the “special security area” plan.
Since its inception, the settlement enterprise has been characterized by the instrumental, cynical, and even criminal use of international law, local legislation, Israeli military orders, and Israeli law. This use has enabled the continuous theft of land from Palestinians in the West Bank. Among its failures, Israel has ignored international humanitarian law’s explicit prohibition on establishing settlements, which it has interpreted in its own way. Israel’s interpretation has been accepted by very few jurists and has been refuted by the international community.
The process employed in taking control of land breaches the basic principles of due procedure and natural justice. In many cases, Palestinian residents were unaware that their land was registered in the name of the state, and by the time they discovered this fact, it was too late to appeal. The burden of proof always rests with the Palestinian claiming ownership of the land. Even if he meets this burden, the land may still be registered in the name of the state on the grounds that it was transferred to the settlement "in good faith."
The legal cloak that Israel has used as a cover for the settlement enterprise is aimed at concealing the continuing theft of land in the West Bank. Its actions have created a legal system in the West Bank that lacks the basic values of compliance with the law and of justice; rather, the system is to intended to serve political purposes and allow the systematic infringement of Palestinians’ human rights.
Israel uses the seized lands to benefit the settlements while prohibiting the Palestinian public from using them in any way. This use is forbidden and illegal in itself, even if the process by which the lands were taken was fair and in accordance with international and Jordanian law. As the occupier in the Occupied Territories, Israel is not permitted to ignore the needs of an entire population and to use land intended for public needs solely to benefit the settlers.
The High Court of Justice has generally sanctioned the mechanism used to take control of land. In so doing, the Court has contributed to imbuing these procedures with a mask of legality. The Court initially accepted the state's argument that the settlements met urgent military needs and allowed the state to seize private land for this purpose. When the state began to declare land "state land," the Court refused to intervene to prevent this process.