HCJ 72436-11-24, Yesh Din v. The Military Commander in the West Bank et al.

Date of submission: November 28, 2024

Taking over Palestinian lands is a central feature of Israel’s control in the West Bank. Ever since the late 1970s, the State of Israel has declared vast areas in the West Bank as public land, or as it is also known in Israel, state land. These declarations are carried out by the Civil Administration and the Custodian of Government Property, units within the military. Israel’s public land declaration policy exploits the fact that most land in the West Bank – about two-thirds of its overall area – is unregulated and relies on a controversial interpretation of the Ottoman Land Law, which allows land without recognized or registered title to be classified as government property.

Over the past 50 years, nearly one million dunams (100,000 hectares) of land in the West Bank, accounting for roughly 17% of its total area, have been declared public land. Added to land declared as such by previous regimes, over which the Israeli military assumed responsibility, today, more than 1,200,000 dunams of land in Area C (120000 hectares), covering about 22% of the total area of the West Bank is under the full control of the Israeli military and administered by the Civil Administration and the Custodian of Government Property.

According to the laws of occupation, the occupying power has a duty to see to the welfare and needs of the local population living under occupation, whose members are considered protected persons. Land declared as public land should be used for purposes that serve the Palestinian population, such as roads, parks and public buildings. Nevertheless, Israel’s public land declaration policy has become a mechanism for transferring West Bank lands to Israeli hands by allocating them to Israel’s settlement project. Under Israeli rule, the absolute majority of public land in the West Bank – roughly 99.3% – has been allocated to serve Israeli settlements, while only 0.7% of this land has been allocated for the benefit of Palestinians living in the area. And so, declaring public land in the occupied West Bank is effectively declaring land for the future service of Israeli settlements, which are a violation of international law. In the West Bank, public land is allocated for use in a process that lacks transparency and involves no tenders. These allocations are made by the Israeli military, which controls the West Bank pursuant to the laws of occupation, under which it acts as trustee only, and in no way the owner of the land.

In 2020, the Military Commander of the West Bank issued the Order regarding Tender Requirements [Judea and Samaria] [No. 1936], 2020), stipulating that the Civil Administration is obligated to act with equality with respect to land allocation and contracting in the West Bank. The Order stipulates that land will be allocated by public tender only, open to anyone, Palestinian or Israeli. Nevertheless, Section 11 exempts the Civil Administration from holding tenders with respect to the allocation of public land pending the introduction of appropriate regulations by the Head of the Civil Administration. In other words, so long as such regulations have not been introduced, the Civil Administration may continue allocating land only to the Jewish population of the West Bank, while the Palestinian population is shut out. Though four years have passed since the Order was issued, the regulations that make it binding have not been introduced, and the Civil Administration has continued its systemic discrimination against Palestinians in the allocation of land in the West Bank. In practice, the Order seeking equality has actually given rise to a land regime in the West Bank that enables further institutionalizing discrimination in the allocation of land to different groups.

On November 29, 2024, Yesh Din petitioned the High Court of Justice regarding the severe discrimination between Israelis and Palestinians enabled under Israeli law and the deliberate absence of regulations on allocating land in the occupied West Bank. The petition was directed against the Military Commander of the West Bank, the Head of the Civil Administration, the Custodian of Government Property, the Judea and Samaria Legal Adviser and the Civilian Deputy to the Head of the Civil Administration in the West Bank. The latter respondent, a position held by Mr. Hillel Roth, is a new governmental function that is part of the transference of some powers of the Civil Administration, which answers to the military (operating under the laws of occupation applicable in the West Bank) to a civilian defense ministry employee, who answers to the government.

Over the past year, since the current government was sworn in, Israel appears to be working to maintain and intensify discrimination in the West Bank, in part by transferring military powers to Israel’s political leadership. This shift leads towards the annexation of the West Bank and the institutionalization of discriminatory practices. Yesh Din’s petition expresses a firm stand against this illegal discrimination and against the attempt to cement the Israeli apartheid regime under the protection of the law. The petition states: “In failing to enact regulations, thus preventing and denying even the slight, qualified correction noted above, whilst land deals are carried out effectively for the sole benefit of one group in the Area – Israelis rather than protected persons living under occupation – Respondents’ conduct completely contradicts their obligations under Regulations 55 and 43 of The Hague Regulations. This flies in the face of any concept of trusteeship Respondents hold vis-à-vis the occupied local population concerning public land … the allocation of public land in one direction only… also violates Respondents’ duty to act with equality and the prohibition on discrimination – both under international human rights law applicable to the area and Israeli administrative law.”

The petition demands that the court order the Military Commander in the West Bank to enact the necessary regulations for the equality-based allocation of public land in the West Bank. According to the petition, this is “a conscious, deliberate policy of discrimination against Palestinians. It is unequal by design in a bid to hamper development for the protected Palestinian population, to the point of literally ‘suffocating’ it, and thus forcing it out of the area.” The petition demands that until military legislation is amended as requested (meaning the enactment of the aforesaid regulations), the military cease any land transactions in the West Bank, including planning permissions and land allocation.

Petition status: Pending.