Is It Legal for Settlers to Take Palestinian Land Under Israeli Law?
What Israel’s own courts, orders and reviews say: State land, private land, 105 outposts and two evacuation judgments.
About 125 dunams of registered private Palestinian land at Rujeib were taken out of a settlement requisition on 22 October 1979, when the Supreme Court of Israel held Order of Possession 16/79 invalid as to the petitioners’ plots and ordered the settlers and structures removed within 30 days. The Court did not bar requisition of private land in principle: Deputy President Landau wrote that possession of privately owned land for a civilian settlement is “potentially justified under Article 52 of the Hague Regulations” where military needs in practice brought about the decision. The Court expressly declined to decide the case under Article 49(6) of the Fourth Geneva Convention, which it held is treaty law and “not binding law in an Israeli Court.”
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| About 125 dunams | Petitioners’ registered land freed from Order of Possession 16/79, out of about 700 dunams the order covered | Supreme Court of Israel | Judgment of 22 October 1979 |
| 105 | Unauthorized outposts known to the author, stated to “probably not reflect the true number” | Prime Minister’s Office | March 2005 |
| 26 | Of those 105, outposts standing on State land | Prime Minister’s Office | March 2005 |
| 15 | Of those 105, outposts standing on Palestinian private property | Prime Minister’s Office | March 2005 |
| NIS 71,870,000 | Outlay on unauthorized outposts, the Ministry of Construction and Housing’s own stated figure | Prime Minister’s Office | 2000 to 2004 |
| About 45 families, about 250 residents | Size of the Migron outpost as the State reported it to the Court | Supreme Court of Israel | February 2009 |
Israeli law permits settlement on State land, not on registered private land
The rule that settlements be established only on State land is a government resolution of 1979, not a holding of the Elon Moreh judgment, and the Prime Minister’s Office recorded it in its 2005 opinion, a review the government commissioned into its own conduct. The 1979 judgment turned on the facts of one requisition: the Court found the political level initiated the settlement and the Chief of the General Staff was asked for a professional opinion afterwards, so the military consideration was not the dominant purpose Article 52 requires. What the Court decided in Elon Moreh is set out separately in the record of that judgment.
- The government resolution of 1979, as the Prime Minister’s Office quotes it: “Israeli settlements in Judea, Samaria and Gaza shall be established only on State land.”
- The Court also held that a military administration “cannot create within its territory ‘facts on the ground’ … intended to exist past the end of the military rule in that area.”
- The Levy Commission, appointed in 2012 by the Prime Minister and the Minister of Justice and stating the government’s own legal position, concluded that “the establishment of settlements cannot in and of itself be considered to be illegal,” and recommended that settlements built without a government decision be authorised without a further government decision.
A 2005 opinion names the authorizations an outpost has to hold
The Prime Minister’s Office published in March 2005 the summary of an opinion on unauthorized outposts, which defines such an outpost first by what it lacks: “There was no government decision to establish it, and in any case no authorized political echelon approved its establishment.” The opinion counted 105 outposts, the author’s own count built on data supplied by the Infrastructure Department of the Civil Administration, which she states did not deliver all of it, and which she writes “probably does not reflect the true number of outposts in the area.” Its finding on the state’s part is quoted in full: “State and public authorities took part in breaking the law.” The wider outpost tally is carried in Israel’s own reviews of unauthorized outposts.
Migron and Amona were ordered removed from privately owned land
The Supreme Court of Israel issued final orders in two petitions brought by registered Palestinian landowners. In the Migron case the State did not dispute that the land was “registered lands under private Palestinian ownership,” and the Court held the outpost illegal on the State’s own position. Each judgment set its own deadline, and the dates of judgment and of evacuation are separate facts.
| Case | Land status the Court recorded | Judgment | Deadline the Court set |
|---|---|---|---|
| Migron, HCJ 8887/06 | Registered private Palestinian ownership, not disputed by the State | 2 August 2011 | Evacuation by 31 March 2012 |
| Amona, HCJ 9949/08 | Privately owned Palestinian land, without authorisation | 25 December 2014 | Removal within two years, to 25 December 2016 |
Source: Supreme Court of Israel sitting as High Court of Justice. On 14 November 2016 the Court rejected a government request to delay the Amona evacuation further.
Military Order 59 reaches government property and defines it
Military Order 59, signed on 31 July 1967 by the Commander of IDF Forces in the West Bank Area and in force from 7 July 1967, is the military commander’s own enactment, published by him in the Collection of Proclamations, Orders and Appointments. It creates a Custodian of Government Property and defines that property by who owned it on 7 June 1967. Land classification itself comes from the Ottoman Land Code of 1858, whose Article 1 states five classes, including Arazi Mirie, “Crown lands, belonging to the state exchequer,” and whose Article 68 is set out in the record on the three-year rule.
- Article 1 of the Order reaches property that on 7 June 1967 belonged to an enemy state, defined as “the Hashemite Kingdom of Jordan or any other enemy state,” or to a body in which such a state held any right.
- Article 2 is one sentence: the Custodian may take possession of government property and take any step he considers necessary to that end.
- Article 5 provides that a transaction made in good faith between the Custodian and another person in property the Custodian considered at the time to be government property stands, even if the property is later shown not to have been government property.
- The 1967 text contains no declaration procedure, no objection window and no appeals committee; the issuing authority’s index lists nine later amending orders, the last being Order 1508.
No Israeli body publishes a total of private land built on
The State Comptroller of Israel reported in May 2022 on the Samaria and Judea District of the Israel Police, a follow-up audit of named bodies over a stated window, published while imposing confidentiality on sections of it. That audit records 12,865 cases opened in the district in 2020 for disturbing public order, security violations and damage to property, and publishes no figure for land held by settlements or outposts. The Prime Minister’s Office counted outposts by land category in 2005 and published no dunam total for private land.
Which figures here may not be added together?
The 105 outposts and the land-status counts are the 2005 opinion’s own, and 26 plus 7 plus 15 plus 39 gives 87, leaving the remainder unresolved in the author’s own text; the four categories are not a partition of 105. The NIS 71,870,000 is the Ministry of Construction and Housing’s own stated figure for a partial list. The about 125 dunams is the petitioners’ registered holding, not the roughly 700 dunams Order 16/79 covered, and the annulment ran to the petitioners’ land alone. The Migron judgment has an official English translation marked subject to editorial change; the Amona judgment has none.
Questions readers ask
Does Israeli law allow a settlement on privately owned Palestinian land?
The Supreme Court of Israel held in 1979 that requisition of private land for a civilian settlement is potentially justified under Article 52 of the Hague Regulations only where military needs in practice produced the decision, and it annulled the order before it on the facts.
What exactly did the Elon Moreh judgment annul?
The Supreme Court of Israel declared Order of Possession 16/79 invalid as to the petitioners’ registered plots, about 125 dunams, and gave the respondents 30 days to comply. Order 17/79, covering the access road, drew no order.
Did the Court decide the Fourth Geneva Convention question?
The Supreme Court of Israel expressly refrained from deciding under Article 49(6), holding that treaty-based international law is not binding in an Israeli court while the Hague Regulations bind as customary law.
Where does the “State land only” rule come from?
The Prime Minister’s Office recorded it in 2005 as a government resolution of 1979 following the Elon Moreh ruling. The phrase does not appear in the judgment itself.
What makes an outpost unauthorized?
The Prime Minister’s Office states the first characteristic: no government decision to establish it, and no authorized political echelon approving its establishment.
How many outposts did the 2005 opinion count?
The Prime Minister’s Office published 105 as at March 2005, on the author’s own count from Civil Administration data, and stated that the figure probably does not reflect the true number.
How were those outposts dated?
The Prime Minister’s Office reported 71 established before March 2001, 24 afterwards, and 10 whose date the author had yet to establish.
How much did a ministry spend on them?
The Prime Minister’s Office recorded NIS 71,870,000 for 2000 to 2004, expressly the Ministry of Construction and Housing’s own stated figure, drawn from a partial list.
What does Military Order 59 define as government property?
The Commander of IDF Forces in the West Bank Area issued the Order in 1967 defining government property by ownership on 7 June 1967 by an enemy state or a body in which such a state held any right.
Does the Ottoman Land Code say fallow land reverts to the state?
The Ottoman Land Code states in Article 68 that land left fallow three successive years becomes subject to the right of tapu, under which the former possessor may recover it for its stated value and, if he declines, it is transferred by auction.
Does any Israeli body publish a total for private land under settlements?
The State Comptroller of Israel published no such total in its May 2022 audit of the Samaria and Judea police district, and the 2005 opinion published outpost counts by land category rather than an area figure.
What did the Levy Commission recommend?
The Levy Commission reported in 2012 that settlements built with the tacit agreement of the political level “can be legalized without requiring a further decision by the government,” and advised the state to refrain from carrying out demolition orders in the meantime.
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 or primary record.
- Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979. Official or primary record.
- 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). Official or primary record.
- Levy, E. E., Shapira, T., and Baker, A., 2012. Report on the Legal Status of Building in Judea and Samaria. Commission to Examine the Status of Building in Judea and Samaria. Official or primary record.
- Ottoman Empire, 1858. The Ottoman Land Code of 7 Ramazan 1274. Ongley translation, revised by Miller, 1892. Primary record, unofficial translation.
- Prime Minister’s Office of Israel, 2005. Summary of the Opinion Concerning Unauthorized Outposts. Official record, 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. Official or primary record.
