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Seizure for Military Needs and the Elon Moreh Ruling

Humanitarian customary law obliges the occupying power to protect the property of residents of the occupied area and prohibits it from expropriating it. However, an occupying power may take temporary possession of privately owned land and buildings belonging to the residents of the occupied area in order to house its military forces and administrative units. Such seizure is by definition temporary; accordingly, the occupying power does not acquire property rights in the requisitioned land and buildings, and is not entitled to sell them to others. Moreover, the occupying power is obliged to pay compensation to the owners for the use of their property.

On the basis of this exception, Israeli military commanders issued dozens of orders between 1968-1979 for the requisition of private land in the West Bank, claiming that it “is required for essential and urgent military needs.” During the above-mentioned period, almost 47,000 dunam of private land were requisitioned, most of which were intended for the establishment of settlements. The following settlements were among those established on this land: Matitiyahu, Neve Zuf, Rimonim, Bet El, Kokhav Hashahar, Alon Shvut, El’azar, Efrat, Har Gilo, Migdal Oz, Gittit, Yitav and Qiryat Arba.

In several cases, Palestinian residents petitioned the High Court of Justice against the seizure of their land, claiming that the use of this land for the purpose of establishing settlements is contrary to the requirements of international humanitarian law. Until the judgment regarding Elon Moreh (see below), the High Court rejected all these petitions and accepted the state’s argument that the land seizure was legal because the settlements performed key defense and military functions. According to Justice Vitkon:

In terms of the purely security-based consideration, there can be no questioning that the presence in the administered territory of settlements − even “civilian” − of the citizens of the administering power makes a significant contribution to the security situation in that territory, and facilitates the army’s performance of its function. One need not be an expert in military and defense matters to appreciate that terrorist elements operate more easily in territory occupied exclusively by a population that is indifferent or sympathetic to the enemy than in a territory in which there are also persons liable to monitor them and inform the authorities of any suspicious movement. With such people the terrorists will find no shelter, assistance and equipment. These are simple matters and there is no need to elaborate.

The justices in this case also found no contradiction between the requirement embodied in humanitarian law that the seizure of private land be temporary and not injure the property rights of its owner, and the fact that permanent settlements, including extensive and diverse physical infrastructure, were established on the seized land.

The argument that the settlements serve military needs could be comfortably adopted under the Ma’arach governments, which acted in accordance with the Alon Plan. Among right-wing circles such as Gush Emunim, however, this argument was perceived as unacceptable. They viewed the settlements in the context of a religious vision; thus, they were not to be justified on security grounds or defined – even for declarative purposes only – as temporary communities. After the rise to power of the Likud in 1977, this approach gained a more central status. Neither Gush Emunim nor certain sections of the Likud-led government were willing to excuse the establishment of the settlements on security grounds, with the concomitant − albeit declarative − definition of these settlements as temporary. This approach, which was supported by some of the ministers in the Likud government that was formed in 1977, eventually led to the ruling in Elon Moreh. Following the Court’s decision in Elon Moreh, the policy of seizing privately owned land to establish settlements stopped.

The petition in Elon Moreh was submitted to the High Court in June 1979 by several residents of the village of Rujeib, southeast of Nablus. The petition asked the court to nullify an order issued by the IDF commander in the region for the requisition of some 5,000 dunam. The land affected by the seizure order was slated for the establishment of a settlement, named Elon Moreh. Work on laying the infrastructure for the settlement began on the same day the order was issued. The state’s response, as customary until this case, was that the settlement was planned for military reasons, and accordingly the requisition orders were lawful. In contrast to previous cases, however, settlers who intended to live in Elon Moreh joined as respondents to the petition. In an affidavit submitted to the Court, one of the leaders of Gush Emunim, Menachem Felix, explained his perspective regarding the goals of the seizure:

Basing the requisition orders on security grounds in their narrow, technical meaning rather than their basic and comprehensive meaning as explained above can be construed only in one way: the settlement is temporary and replaceable. We reject this frightening conclusion outright. It is also inconsistent with the government’s decision on our settling on this site. In all our contacts and from the many promises we received from government ministers, and most importantly from the prime minister himself − and the said seizure order was issued in accordance with the personal intervention of the prime minister − all see Elon Moreh to be a permanent Jewish settlement no less than Deganya or Netanya.

Chaim Bar Lev, a former army chief of staff, also challenged the argument of military need to establish Elon Moreh. In an affidavit on behalf of the petitioners that was submitted to the Court, Bar Lev stated that, “Elon Moreh, to the best of my professional evaluation, does not contribute to Israel’s security.”

Against the background of these two affidavits, which undermined the argument of military necessity, and based on the extensive evidence brought before the court regarding the pressure that Gush Emunim applied on the government to approve the settlement, the High Court ordered the IDF to dismantle the settlement and return the seized land to its owners. The immediate result of this ruling was the finding of an alternative site for the establishment of the settlement of Elon Moreh. Beyond this, however, the ruling was a watershed in terms of the legal tools that would henceforth be used by Israel in establishing and expanding settlements.

Since Elon Moreh, military seizure orders have not been used for the purpose of the establishment and expansion of settlements. However, this tool has been reintroduced and widely used since 1994 to build bypass roads. This occurred as part of the plans for preparing for the redeployment of IDF forces in the Occupied Territories following the signing of the Oslo Accords between Israel and the Palestinian Authority.

One of the main components of this plan was the construction of an extensive system of bypass roads intended to meet four key needs defined by the Ministry of Defense to facilitate Israeli civilian travel in the Occupied Territories: to enable them to travel in the Occupied Territories without passing through Palestinian population centers; to permit Israelis to travel across the Green Line by the shortest route; to maintain “an internal fabric of life” within the Israeli settlement blocs; and to ensure that Palestinian traffic did not pass through the settlements. According to an examination undertaken by the State Comptroller, between August 1994 and September 1996, the army issued requisition orders in the framework of this plan for 4,386 dunam of private land, for the purpose of constructing seventeen bypass roads.

In one case, Palestinian residents petitioned the High Court against requisition orders issued for their land. They claimed, inter alia, that the construction of bypass roads for the settlements could not be considered a military need. The court rejected the petition, accepting the state’s argument that the construction of the roads was needed for “absolute security needs.”

After the outbreak of the al-Aqsa intifada, toward the end of 2000, a new wave of land requisition through military orders began. Private lands were seized to construct new bypass roads to replace old roads or bypass roads that were no longer safe. The new roads were intended to meet the needs of the settlers who, since the beginning of the new intifada, had suffered repeated attacks from Palestinians while traveling on the roads. According to one press report, eight new bypass roads are currently in various phases of construction, at a total cost of NIS 228 million.