What Does Israeli Law Say About the State’s Role in Settlements?
Clause 7, the 1979 State land resolution, Military Order 59 and the 2005 outposts opinion: what Israel’s own bodies published, with dates.
Clause 7 of Basic Law: Israel as the Nation-State of the Jewish People, which the Knesset enacted on 19 July 2018, is the enacted sentence in which the State’s role in settlement is stated: “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation.” Around that clause sit three further Israeli instruments that define how the role operates: a 1979 government resolution requiring that a settlement stand on State land and rest on a government decision, Military Order 59 of 1967 creating a Custodian of Government Property, and the Prime Minister’s Office opinion summary of March 2005 naming the ministries and state-financed bodies through which land, planning and money reached unauthorized outposts.
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| Clause 7 | The clause stating that the State will act to encourage and promote Jewish settlement | Knesset, in its own English translation, which it labels unofficial | Enacted 19 July 2018 |
| 15 | Petitions challenging that Basic Law, all dismissed by an eleven-justice panel | Supreme Court, HCJ 5555/18 Hasson v. Knesset | Judgment 8 July 2021 |
| About 125 dunams | Registered private land at Rujeib whose requisition for a settlement the Court annulled | Supreme Court, HCJ 390/79 Dweikat | Judgment 22 October 1979 |
| 8 articles | Military Order 59, creating the Custodian of Government Property in the West Bank Area | Commander of IDF Forces in the West Bank Area | Signed 31 July 1967, in force 7 July 1967 |
| 105 | Unauthorized outposts known to the author, stated as probably not the true number | Prime Minister’s Office, Sason opinion summary | As at March 2005 |
| 26 | Of those 105, outposts standing on State land | Prime Minister’s Office, Sason opinion summary | As at March 2005 |
| NIS 71,870,000 | Outlay on unauthorized outposts, the Ministry of Construction and Housing’s own stated figure | Prime Minister’s Office, Sason opinion summary | 2000 to 2004 |
Clause 7 says the State will act to encourage settlement
The Knesset published clause 7 in the enacted text of Basic Law: Israel as the Nation-State of the Jewish People, and the clause is a single sentence naming settlement development as a national value that the State will act to encourage, establish and consolidate. The Supreme Court, sitting as the High Court of Justice with eleven justices in HCJ 5555/18, dismissed fifteen petitions against the Basic Law on 8 July 2021 and upheld it. In the same judgment the Court held that the Knesset as constituent authority is “not all powerful” and may not, even by Basic Law, deny the core character of the State as a Jewish and democratic state. The clause is one of twelve in the law; the full clause-by-clause text is published separately.
Settlement requires State land and a government decision
The Prime Minister’s Office published, in the March 2005 summary of the Sason opinion, the legality test the State applies to a settlement: a 1979 government resolution, taken after the High Court of Justice ruling in Elon Moreh, that “Israeli settlements in Judea, Samaria and Gaza shall be established only on State land”, and, as the first characteristic of an unauthorized outpost, that no government decision and no authorized political echelon approved its establishment.
The Supreme Court ruled in HCJ 390/79 on 22 October 1979, five justices to none, that Order of Possession no. 16/79 was invalid as to the petitioners’ registered plots, because the political level took the decision and the military opinion followed it. The Court held that requisition for a civilian settlement is potentially justified under Article 52 of the Hague Regulations, so the ruling turned on the facts of that requisition rather than on settlement in principle. What the Court decided, and what it expressly left open, is set out in what the Court decided in the Elon Moreh case.
Military Order 59 put State land under a Custodian
The Commander of IDF Forces in the West Bank Area issued Military Order 59, Order Concerning Government Property, on 31 July 1967, in force from 7 July 1967, in eight articles printed in Hebrew and Arabic in the Collection of Proclamations, Orders and Appointments. Article 1 defines Government Property by who owned it on 7 June 1967 and creates a Custodian appointed by the military commander; article 2 provides that the Custodian may take possession of government property and take any step he considers necessary for that purpose; article 5 preserves a transaction made in good faith with the Custodian even if the property is later shown not to have been government property.
- The order names itself for the West Bank Area, not for Judea and Samaria, in its own naming clause.
- The 1967 text contains no declaration procedure, no objection window and no appeals committee.
- Nine amending orders are listed by the issuing authority, the last being Order 1508.
- No official English text exists; the Arabic and Hebrew are the published versions.
The classification the land categories are worked from is the Ottoman Land Code of 1858, whose articles 68 and 78 set a three-year fallow rule and a ten-year prescription. What the three-year rule provides is published separately.
The 2005 opinion names the ministries and bodies involved
The Prime Minister’s Office published the Sason opinion summary on 10 March 2005, naming the state channels through which unauthorized outposts were financed and serviced: the Ministry of Construction and Housing, the Ministry of Defense, the Civil Administration, and the Settlement Division of the World Zionist Organization. Its stated finding is that “State and public authorities took part in breaking the law”, financing construction without a resolution by the political echelon and with no legal planning status. The single spending figure it prints, NIS 71,870,000 for 2000 to 2004, is the Ministry of Construction and Housing’s own, supplied by its Rural Building Administration off a partial list.
The outpost counts themselves, and what they exclude, are set out in Israel’s own reviews of unauthorized outposts.
A 2012 government commission recommended regulating building
The Levy Commission, appointed on 13 February 2012 by the Prime Minister and the Minister of Justice, stated in its report signed 21 June 2012 that the classical laws of occupation cannot be considered applicable to Israel’s presence in Judea and Samaria and that the establishment of settlements “cannot in and of itself be considered to be illegal”. It recommended that settlements built without a government decision be treated as carrying implied agreement and be authorized without a further government decision, that administrative barriers on planning be removed, and that the State refrain from carrying out demolition orders meanwhile. The report’s own closing paragraph leaves adoption to the government.
| Instrument | What it decided or recommended | Body | Date |
|---|---|---|---|
| Levy report | Recommendations on authorizing building; not an enacted decision | Commission appointed by the Government of Israel | Signed 21 June 2012, released 9 July 2012 |
| HCJ 8887/06 (Migron) | Final order to evacuate the outpost, the State conceding the land was registered private Palestinian property | Supreme Court | Judgment 2 August 2011 |
| HCJ 9949/08 (Amona) | Order to remove the entire outpost within two years | Supreme Court | Judgment 25 December 2014 |
No Israeli body publishes a consolidated settlement spending total
One published Israeli spending figure attaches to settlement building: the NIS 71,870,000 the Ministry of Construction and Housing reported for 2000 to 2004, covering unauthorized outposts only. It is the Ministry’s own count of its own outlay, off a partial list, so it is a floor. The State Comptroller published a follow-up audit of that police district in May 2022, and those are the Comptroller’s audit figures rather than the Police’s own count: 12,865 cases opened in 2020 for disturbing public order, security violations and damage to property, 48,371 traffic tickets issued in 2020, and NIS 270 million in traffic fines issued to Palestinian drivers and estimated by the audit as uncollected between 2014 and 2021. No consolidated Israeli figure for settlement expenditure appears in the record set out on this page.
Which figures here may not be added together?
The 105 outposts and the NIS 71,870,000 come from the same March 2005 summary but are different quantities: the money is one ministry’s reported outlay across 2000 to 2004, not a cost per outpost. The four land categories in the 2005 summary total 87, and the remaining 18 of the 105 are recorded there as unresolved, so neither 105 nor any subtotal drawn from it is a closed total. The State Comptroller’s 12,865 criminal case openings and 48,371 traffic tickets are different universes and may not be summed or divided into one another, and the NIS 270 million is the audit’s own estimate. Military Order 59 as printed in 1967 has been amended nine times, so its text supports statements about 1967 and not about current practice.
Questions readers ask
Where is the State’s role in settlement written in Israeli law?
In clause 7 of Basic Law: Israel as the Nation-State of the Jewish People, which the Knesset enacted on 19 July 2018.
Did Israel’s Supreme Court strike down that clause?
No. The Supreme Court dismissed the fifteen petitions in HCJ 5555/18 on 8 July 2021 and upheld the Basic Law, while holding that the Knesset may not deny the core character of the State as Jewish and democratic.
What conditions does Israeli policy set on establishing a settlement?
A 1979 government resolution, recorded in the Prime Minister’s Office summary of March 2005, requires that a settlement stand on State land, and the same summary treats the absence of a government decision as the first characteristic of an unauthorized outpost.
Can private land be requisitioned for a settlement?
The Supreme Court held in HCJ 390/79 on 22 October 1979 that requisition under Article 52 of the Hague Regulations is potentially justified only where military need in practice drove the decision, and annulled the order as to the petitioners’ plots.
What is Military Order 59?
An eight-article order signed on 31 July 1967 by the Commander of IDF Forces in the West Bank Area, creating a Custodian of Government Property and defining that property by ownership on 7 June 1967.
Does Military Order 59 include an appeals procedure?
The 1967 text contains no declaration procedure, no objection window and no appeals committee.
Which ministries did the 2005 opinion name?
The Ministry of Construction and Housing, the Ministry of Defense and the Civil Administration, together with the Settlement Division of the World Zionist Organization.
What is the Settlement Division of the World Zionist Organization?
The 2005 summary records it as a state-financed body involved in servicing outposts. It is not an Israeli ministry.
How much did Israel report spending on unauthorized outposts?
NIS 71,870,000 between 2000 and 2004, the Ministry of Construction and Housing’s own stated figure, published in the Prime Minister’s Office summary of March 2005.
How many outposts had been evacuated by 2005?
The summary reports 81, on Ministry of Defense data covering only outposts established after March 2001, and records that some were occupied again.
Sources
- Commander of IDF Forces in the West Bank Area, 1967. Military Order 59, Order Concerning Government Property. Collection of Proclamations, Orders and Appointments, booklet 5, p. 162. Official record.
- Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979. Court judgment.
- Israeli Supreme Court, 2011 and 2014. HCJ 8887/06 al-Nabut v. Minister of Defense (Migron) and HCJ 9949/08 Hamad v. Minister of Defense (Amona). Court judgments.
- Israeli Supreme Court, 2021. HCJ 5555/18 Hasson v. Knesset. Judgment of 8 July 2021. Court judgment.
- Knesset, 2018. Basic Law: Israel as the Nation-State of the Jewish People. Published English translation, labelled unofficial. Enacted legislation.
- Levy, E. E., Shapira, T., and Baker, A., Commission to Examine the Status of Building in Judea and Samaria, 2012. Report on the Legal Status of Building in Judea and Samaria. Government-appointed commission report.
- Ottoman Empire, 1858. The Ottoman Land Code of 7 Ramazan 1274. Ongley translation, 1892, unofficial. Enacted legislation.
- Prime Minister’s Office of Israel, 2005. Summary of the Opinion Concerning Unauthorized Outposts. Published 10 March 2005. Government-commissioned review.
- State Comptroller of Israel, 2022. Samaria and Judea District of the Israel Police, Follow-up Audit. State Comptroller Report, May 2022, Chapter Four. State audit report.
