Can Uncultivated Palestinian Farmland Be Expropriated?

8 articles make up Military Order 59, the Order Concerning Government Property that the Commander of IDF Forces in the West Bank Area signed on 31 July 1967 and brought into force on 7 July 1967. Article 1 defines Government Property by ownership on a determining date of 7 June 1967, and Article 2 empowers a Custodian to take possession of it. Inside Israel a different instrument governs: Forman and Kedar record that the 1953 Land Acquisition Law expropriated some 1.2 million dunams in its first year of operation, 311,000 dunams of them from private ownership.

Figure	What it counts	Who published it	Period
8 articles	Articles of Military Order 59, defining government property and the Custodian’s powers	Commander of IDF Forces in the West Bank Area	Signed 31 July 1967, in force from 7 July 1967
7 June 1967	The determining date fixing whose property the Order reaches	Commander of IDF Forces in the West Bank Area	Order 59, 1967
3 years	Fallow period after which arable miri land becomes subject to the right of tapu, Article 68	Ottoman Land Code, promulgated 21 April 1858	1858 text, in unofficial English translation
1.2 million dunams	Land expropriated under the 1953 Land Acquisition Law, inside Israel	Forman and Kedar, peer-reviewed archival legal history	First year of the law’s operation
311,000 dunams	Of that total, land taken from private ownership, 304,700 dunams of it from Arab owners	Forman and Kedar	Same first year
64,500 dunams	Land under that law for which compensation had been paid	Forman and Kedar	By 1959
105 outposts	Unauthorized outposts known to the author, 26 of them on State land	Prime Minister’s Office of Israel	March 2005

Order 59 defines government property by ownership on 7 June 1967

Military Order 59 states its definition in Article 1: Government Property is property that on the determining date belonged to an enemy state, to a corporation in which such a state held any right, directly or indirectly, with or without control, property registered in such a name on that day, and property in which such a body was a partner. The enemy state is defined in the same article as the Hashemite Kingdom of Jordan or any other enemy state, including its government, unit, branch, authority or corporation. Article 2 is a single sentence: the Custodian may take possession of government property and take any step that appears to him necessary for that purpose.

• The instrument’s test is ownership on 7 June 1967. Use of the land is not a term of the definition in Article 1.
• Article 6 sets a penalty of ten years’ imprisonment or a fine of IL 20,000 or both, for concealing or damaging government property or obstructing the Custodian.
• The Collection of Proclamations, Orders and Appointments prints the order in Hebrew and Arabic. The issuing authority publishes no English text of it.
• The Military Advocate General’s index lists nine amendments to the order, the last being Order 1508, so the 1967 text is not the text in force today.
• Requisition of privately owned land is a separate instrument. The Supreme Court ruled on 22 October 1979 in HCJ 390/79 Dweikat v. Government of Israel that an order of possession over land at Rujeib was invalid as to the petitioners’ registered plots, a holding set out in the Elon Moreh judgment.
• The three fallow years the order works against belong to Article 68 of the Ottoman Land Code, set out in the Ottoman Land Code’s three-year rule.

A good faith transaction with the Custodian stands under Article 5

Article 5 of Military Order 59 provides that a transaction made in good faith between the Custodian and another person, in any asset the Custodian considered at the time of the transaction to be government property, shall not be invalidated and shall stand even if it is proved that the asset was not government property at that time. Article 4(2) makes any payment to a partner in government property conditional on it being proved to the Custodian’s satisfaction that the partner is not an enemy.

• The 1967 text carries no declaration procedure, no objection window and no appeals committee. Those eight articles define the property, name the Custodian and give him possession.
• Under Article 4(2) the person seeking payment is the one who must satisfy the Custodian.
• Under Article 5 the transaction survives a later showing that the asset was not government property.

What did Israeli reviews recommend for building in Judea and Samaria?

The Levy Commission, appointed on 13 February 2012 and signed on 21 June 2012, recommended that each settlement’s municipal jurisdiction be determined by order “taking into due consideration future natural growth”, that the administrative barriers imposed on the planning and zoning authorities be removed, and that the state refrain from carrying out demolition orders pending completion. Its conclusions state that settlements established with the knowledge and tacit agreement of the political level reflect implied agreement. The Prime Minister’s Office published an earlier review in March 2005, which recorded the land each unauthorized outpost stood on.

Land status of the outpost	Outposts
State land	26
Survey lands	7
Palestinian private property	15
Mixed, part State, part survey, part Palestinian-owned	39
Land whose nature the opinion had not resolved	18

Source: Prime Minister’s Office of Israel, Summary of the Opinion Concerning Unauthorized Outposts, March 2005. The opinion states that 105 “probably does not reflect the true number of outposts in the area”, and does not itself total the four land categories; 18 is the remainder after 26, 7, 15 and 39. It also records a 1979 government resolution, following the Elon Moreh ruling, that settlements be established only on State land.

1.2 million dunams were expropriated under the 1953 Land Acquisition Law

Forman and Kedar report that the 1953 Land Acquisition Law expropriated some 1.2 million dunams in its first year of operation, of which 311,000 dunams came from private ownership, 304,700 of those from Arab owners, and 704,000 dunams were taken from the Custodian. Their 2004 study is a peer-reviewed archival legal history of Israeli legislation, archival documents and Knesset proceedings between 1948 and 1960, and it ends at the Israel Lands legislation of late July 1960. The 311,000 and the 704,000 are subsets of the 1.2 million, and the authors state it is not clear how much of the 704,000 was present-absentee land.

No dunam total for non-cultivation declarations appears in these reviews

Each of these Israeli reviews counts something, and none of them counts land declared on a non-cultivation ground.

• The Prime Minister’s Office counted 105 unauthorized outposts in March 2005 and NIS 71,870,000 of Ministry of Construction & Housing outlay on them from 2000 to 2004, the spending ministry’s own self-reported figure off a partial list. It publishes no dunam total.
• The Levy Commission published no measurement of its own. Its only counts are figures presented to it on Area C nature reserves and parks: some 51 sites designated as reserves and 8 as parks, of which 18 were regularized.
• The State Comptroller of Israel reported 12,865 cases opened for offenses of disturbing public order, security violations and damage to property in 2020, and 48,371 traffic tickets in the same year, in the May 2022 follow-up audit of the Samaria and Judea District of the Israel Police. That audit carries no land-declaration count, and it was published with confidentiality imposed on sections of it.

Which figures here may not be added together?

The 311,000 dunams and the 704,000 dunams are subsets of the 1.2 million, not additions to it. Forman and Kedar state that there is no one agreed-upon figure for the land that moved from Arab hands to the state after 1948, and relay several ranges from other bodies rather than adopting one; none of those ranges is attributed to them here. The 12,865 criminal case openings and the 48,371 traffic tickets in the State Comptroller’s audit are different universes and may not be summed or divided into one another. The 105 outposts is stated by the opinion itself as a floor. The compensation totals are cumulative by date, and the 1970 figure is stated as about 170,000.

Further questions on Order 59 and the 1953 law

What does Military Order 59 define as government property?

Article 1 defines it as property that on the determining date belonged to an enemy state, to a corporation in which such a state held any right, property registered in such a name on that day, or property in which such a body was a partner.

What date does Order 59 turn on?

The determining date in Article 1 is 28 Iyar 5727, 7 June 1967.

Who takes possession under Order 59?

Article 1 creates the Custodian, appointed by the military commander, and Article 2 lets him take possession and take any step appearing to him necessary.

Is there an official English text of Order 59?

No. The Collection of Proclamations, Orders and Appointments prints the order in Hebrew and Arabic only, and the issuing authority publishes no English title beyond the Arabic one.

Is the 1967 text the text in force?

The Military Advocate General’s index lists nine amendments, the last Order 1508 at booklet 200, page 3221.

What does Article 68 of the Ottoman Land Code say?

Land left fallow for three successive years without a valid excuse becomes subject to the right of tapu, in the 1892 Ongley translation, and the former possessor may recover it on payment of its equivalent value.

What excuses does Article 68 itself allow?

Resting the soil for one or two years or longer where the locality requires, leaving flooded land fallow until it can be cultivated again, and being a prisoner of war.

Does Article 78 work the same way?

No. Article 78 gives a possessor of miri or mevkufe land who has held it ten years without disturbance a prescriptive right and a new title deed, issued free of charge.

How much land did the 1953 Land Acquisition Law take in its first year?

Some 1.2 million dunams, on Forman and Kedar’s reading of the archival record, including 311,000 dunams from private ownership.

How much of that land had been compensated?

64,500 dunams by 1959, about 170,000 dunams by 1970 and 198,000 dunams by 1988.

How many unauthorized outposts stood on Palestinian private property?

15 of the 105, with a further 39 on mixed lands part State, part survey and part owned by Palestinians, on the March 2005 count.

Which Israeli body publishes a total for land declared on a non-cultivation ground?

None of the reviews on this page does. The 2005 opinion counts outposts, the 2012 commission counts nothing of its own, and the 2022 audit counts police cases and tickets.

Sources

• Commander of IDF Forces in the West Bank Area, 1967. Order Concerning Government Property (West Bank Area) (No. 59), 5727-1967. Collection of Proclamations, Orders and Appointments, booklet 5, p. 162. Official or primary record.
• Forman, Geremy, and Alexandre Kedar, 2004. From Arab Land to “Israel Lands”: The Legal Dispossession of the Palestinians Displaced by Israel in the Wake of 1948. Environment and Planning D: Society and Space, 22(6), pp. 809 to 830. DOI 10.1068/d402. Peer-reviewed journal.
• Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel. Judgment of 22 October 1979. Official or primary record.
• Levy, Edmond E., Tehiya Shapira, and Alan Baker, 2012. Report on the Legal Status of Building in Judea and Samaria. Commission to Examine the Status of Building in Judea and Samaria, signed 21 June 2012. Official or primary record.
• Ottoman Empire, 1858. The Ottoman Land Code of 7 Ramazan 1274. English translation of F. Ongley, revised by Horace E. Miller, London, 1892. Primary record in unofficial translation.
• Prime Minister’s Office of Israel, 2005. Summary of the Opinion Concerning Unauthorized Outposts. gov.il, publish date 10 March 2005. Official record.
• State Comptroller of Israel, 2022. Samaria and Judea District of the Israel Police, Follow-up Audit. State Comptroller Report, May 2022, Chapter Four, p. 321. Official record.