The goal is one and all the roads lead to it: Israeli takeover of as much land as possible in the West Bank. The main method is now declaring as much of it “state land” as possible.
Let’s begin with the good news: our new position paper, “Land Takeover Practices Employed by Israel in the West Bank”, finds that the trick the Israeli government was so supportive of in the 1990s – to have Israeli civilians take over private Palestinian land and build outposts on it – has become problematic. Nowadays it is very hard to defend, even in the High Court of Justice, the illegal takeover of privately-owned land. Sorry, residents of Derekh Ha’Avot, Amona and the rest – it simply doesn’t work anymore.
Of course, the fact that simply invading land no longer works, and that one can no longer build outposts on private land, does not mean the government has stopped fighting tooth and nail over every outpost. For instance, following the petition that demanded the removal of all of Amona in 2008, the High Court ruled in 2014 that the unauthorized outpost is to be evacuated by the end of 2016 – which did not prevent the creative minds of the prosecution from trying to find out how the law may be bended and the outpost saved.
Yet the main effort by the political and official establishment is in another direction. As noted in an earlier position paper, “Under the Radar”, the government’s position, as presented to the High Court, has changed significantly in the past few years. Whereas its position towards unauthorized outpost used to be, “they are illegal, and we intend to evacuate them as soon as hell freezes over,” the position has shifted to, “they’re illegal, and we intend to legalize them”.
What happened is quite simple: the government understands that if it comes to court defending plain theft — and thereby supporting the people who took over private land — it will lose. Therefore it somehow must make a criminal act appear legal. For those familiar with the Hebrew term “kosherizing,” know that the government uses so often, it even refers to the practice of declaring what is unclean as kosher.
Fantasies such as the Hasdara Law (a Hebrew term very hard to translate, roughly meaning “to make it right or proper,” which basically means that private land may simple be taken) are not likely to be realized, since even the attorney general considers it “the end of democracy.” The question, then, is what steps the government will take to protect the land theft.
The best and the brightest minds in the country are on it as we speak. They follow the petitions to the High Court, and when they fear those petitions may succeed, they give up. For instance, recently several military seizure orders were revoked when it turned out the army did nothing with the land. The plan was ostensibly put in place to turn the land over to the settlers in the future when nobody was looking. But it didn’t work out. So in order to avoid a court ruling that could potentially serve as a precedent, the government often simply gave up.
This is why the main effort today is directed at both illegal construction on public land and creating public land out of nothing. Wherever possible, the government is trying to kosherize construction on land that has already been declared as public. In other places, it tries to kosherize the land sitting below illegally-constructed houses by declaring it public land. Yesh Din conducted three legal processes demanding the removal of illegal construction on public land. In one case, the courts provided partial aid; in two other cases, the government announced it intends to kosherize the impure, and the court threw out the petition.
Surely it would be proper to claim that illegal construction should be demolished even on public land; after all, that land is supposed to serve the public. But the construction was done, contrary to law, for the sake of private individuals. And everyone, particularly the courts, knows that “public land” in Israel is a legal fiction. Most Israeli readers won’t be even familiar with the term; here it is generally called “state land,” which is no coincidence. The semantic change hints that the land belongs to the state long before the argument even began.
By the laws of occupation, under which the West Bank is supposed to be managed, an occupying force may declare uncultivated land public land. After all, the residents of the occupied territory need schools, hospitals, parks, streets, industrial zones etc. But, of course, this isn’t what happens in the West Bank.
The shtick of declaring public land was created after the High Court (in its 1979 Elon Moreh ruling) ruled that the practice of using land seized for military purposes for private settler building to be illegal. Using the legal mishmash in the West Bank – a mess of Ottoman, Mandatory, Jordanian and military law – Israel declared land to be public, and then transferred it not to the protected residents of the West Bank, but to the settlements. The Civil Administration was forced to admit in 2013 (following a petition by ICRI) that of all the land declared as public, only 0.7% was allocated to the Palestinians.
But hold on, you say. The declaring of public land took place a long time ago; how can it be related to the places where the relatively new, unauthorized outposts were built? Worry not: The Civil Administration’s Blue Line Team (allegedly created to improve older land declarations through updated technology) is assiduously trying to claim that the original declarations were erroneous – that in most cases these errors somehow transfer more land to Israeli control — land that totally by accident has some illegal construction on it. Time and again, these “corrections” kosherize land with illegal construction. We are trying to challenge the Blue Line Team, but it isn’t easy.
The heart of the problem lies with the fact that the government keeps changing the rules of the game. You play by what you thought are the rules, and it informs you the rules are in fact completely different. There will always be another shtick, trick, or stunt that will allow it somehow to take over more and more land. When it comes to letting go of ill-gained land, its fingers are clenched into a fist.