Which Israeli Instruments Are Used to Take Palestinian Land?

1.2 million dunams were expropriated in the first year of the Knesset’s Land Acquisition (Validation of Acts and Compensation) Law of 1953, on the archival account Forman and Kedar published in Environment and Planning D in 2004. That statute is one of four named instruments that carry land out of private hands in the Israeli record: two Knesset statutes of 1950 and 1953 operating on land inside Israel’s borders, Military Order 59 of 1967 creating a Custodian of Government Property in the West Bank Area, and requisition under Article 52 of the Hague Regulations, the route the Supreme Court examined in 1979. Behind the third of these sits the Ottoman Land Code of 1858, whose tenure articles supply the test.

Figure	What it counts	Who published it	Period
1.2 million dunams	Land expropriated in the first year the 1953 Land Acquisition Law operated	Forman and Kedar, peer-reviewed	1953 to 1954
64,500 dunams	Land for which compensation had been paid under that mechanism	Forman and Kedar, peer-reviewed	by 1959
about 125 dunams	Petitioners’ registered land freed by annulment of Order of Possession 16/79, of about 700 dunams the order covered	Supreme Court, HCJ 390/79	22 October 1979
10 years	Uninterrupted possession of miri or mevkufe land giving a prescriptive right, Article 78	Ottoman Land Code of 7 Ramazan 1274	enacted 1858
105 outposts	Unauthorized outposts known to the author, 26 of them on State land	Prime Minister’s Office, Sason opinion, the author’s own count off partial Civil Administration data	March 2005
about 450,000 dunams	Area C land allocated by the Custodian to the Settlement Division under permit agreements	State Comptroller of Israel	as at the 2014 audit year
13,481 cases	Illegal construction identified in the Palestinian sector, 3,813 of them demolished	State Comptroller, relaying the Supervision Unit’s own count	1997 to 2013

Order 59, Article 52, and two 1950s statutes carry the routes

Each route has its own issuing authority, its own date and its own legal test, and they are not interchangeable. The Commander of IDF Forces in the West Bank Area issued Military Order 59 on 31 July 1967, the military commander’s own enactment, published in the Collection of Proclamations, Orders and Appointments; it defines government property by who owned it on 7 June 1967 and empowers a Custodian to take possession. The Supreme Court held in 1979 that seizure of privately owned land runs instead through Article 52 of the Hague Regulations.

Instrument	What it does	Issuing body	Date
Absentee Property Law and Development Authority Law	Vest absentee property in a Custodian who may sell only to the Development Authority, which may sell only to the state and the Jewish National Fund	Knesset	March and July 1950
Land Acquisition (Validation of Acts and Compensation) Law	Expropriation with compensation, validating acts already done	Knesset	1953
Military Order 59	Defines government property by ownership on 7 June 1967 and vests possession in a Custodian	Commander of IDF Forces in the West Bank Area	31 July 1967
Article 52, Hague Regulations, as applied in HCJ 390/79	Requisition for the needs of the army of occupation	Supreme Court of Israel	22 October 1979

The 1950 and 1953 statutes operate on land inside Israel

Forman and Kedar’s archival history covers a 12-year process running from 1948 to the Israel Lands legislation of late July 1960, and it concerns land inside the borders Israel held after 1948. Their account of the Absentee Property Law sets out both the definition and its domestic effect.

• An absentee, in the statutory definition the authors quote, was anyone who on or after 29 November 1947 was a citizen or subject of an Arab country at war with Israel, was in such a country or in a part of Palestine outside the regulations’ jurisdiction, or was a citizen of Palestine who abandoned his or her normal place of residence.
• The result the authors record: practically no Jewish Israelis, but tens of thousands of Arab Israeli citizens, were classified as absentees, taking the legal identity of “present absentee”.
• Under the 1953 Law in its first year of operation, 1.2 million dunams were expropriated, including 311,000 dunams from private ownership, 304,700 of those from Arab owners.
• Compensation under that mechanism had been paid for 64,500 dunams by 1959, about 170,000 dunams by 1970 and 198,000 dunams by 1988.

The authors state that there is no one agreed-upon figure for the land that moved from Arab hands to the state in the wake of 1948, and they relay other bodies’ estimates rather than adopting one.

Elon Moreh separates temporary seizure from the State land route

The Supreme Court ruled on 22 October 1979, in HCJ 390/79 Dweikat v. Government of Israel, that Order of Possession 16/79 was invalid as to the petitioners’ registered land, about 125 dunams of the roughly 700 dunams the order covered, and gave the respondents 30 days to comply. The judgment turns on what military seizure orders may be used for, and Deputy President Landau wrote that requisition 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 limit: “the military needs discussed in this article cannot be construed to include, by any reasonable interpretation, national security needs in their broad sense.”
• The finding of fact: the initiative came from the political echelons, which then sought the Chief of the General Staff’s professional opinion.
• An independent second ground: a military administration cannot create facts on the ground intended in advance to outlast military rule.
• Article 49(6) of the Fourth Geneva Convention was expressly not decided, the Court stating that as treaty-based international law it is not binding in an Israeli court.

Requisition under Article 52 is a distinct route from Military Order 59, which the Commander of IDF Forces in the West Bank Area wrote to govern property owned by the former Jordanian state on 7 June 1967 rather than the seizure of private land.

Ottoman Article 78 supplies the test on cultivated land

The Ottoman Land Code of 7 Ramazan 1274 states in Article 1 that land falls in five classes, among them arazi mirie, state land, and arazi mevat, dead land. Article 6 defines mevat as waste land in nobody’s possession, about a mile and a half or half an hour from the nearest inhabited place. Article 68’s three fallow years and Article 78’s ten-year prescription run in opposite directions, and the quotations below are from the Ongley translation of 1892, an unofficial English text.

Article	What it provides	Direction it runs
6	Defines mevat by distance from habitation	Definition only
68	Land left fallow three successive years without valid excuse “becomes the right of Tapu”; the former possessor may recover it on payment	Against the holder
78	Possession of miri or mevkufe land for ten years without disturbance proves a prescriptive right, and a new title deed is given gratis	In the holder’s favour
103	Mevat opened up with official permission becomes arable land, forfeited if left three years unopened	Conditional grant

The commission appointed by the Prime Minister in February 2012 and chaired by Justice (Ret.) Edmond E. Levy reported on 21 June 2012 that from the point of view of international law the classical laws of occupation cannot be considered applicable, and that settlement establishment cannot in and of itself be considered illegal. That is the commission’s own legal position on a contested question, submitted for the government to decide whether to adopt.

The Comptroller audited registration and published no dunam total

The State Comptroller published an audit of the Civil Administration’s Central Supervision Unit and of land registration in Annual Report 66b in 2016, covering an audit year of January to December 2014 with completion checks to December 2015. It reports about 450,000 dunams in Area C allocated by the Custodian to the Settlement Division of the World Zionist Organization under permit agreements, and 120 Israeli localities in Area C, 87 of them established and settled by the Division, holding about 100,000 residents.

Publication	What it publishes	What it does not publish
Annual Report 66b, 2016	Area C allocations to the Settlement Division, and the Supervision Unit’s own detection counts	Any cumulative dunam figure across the routes
Annual Report 70C	Hard-copy land registers, about 4 years of incomplete computerisation	Any dunam total of State land
Sason opinion, March 2005	105 unauthorized outposts by land status	Any area declared Government Property

Source: State Comptroller of Israel, Annual Reports 66b and 70C; Prime Minister’s Office of Israel, March 2005.

The State Comptroller also reported, in Annual Report 70C on staff officers in the Civil Administration, that real estate in Judea and Samaria is registered in hard-copy registers with no computerised system, that about 4 years of computerisation work had not been completed, and that the Civil Administration had gone 8 years without an internal auditor. The Prime Minister’s Office published the Sason opinion in March 2005, which counted 105 unauthorized outposts, 26 on State land, 7 on survey lands, 15 on private Palestinian property and 39 on mixed lands, with a remainder whose status the author had not resolved. None of these Israeli publications carries a cumulative dunam figure across the routes, and none of them publishes a count of State land declarations issued.

Which figures on this page may not be added together?

The 1.2 million dunams of 1953 and the about 450,000 dunams of permit-agreement allocations in Area C are different objects under different instruments in different territories, and they do not sum. The 311,000 private dunams are a subset of the 1.2 million, not an addition to it. The Sason land categories total 87 against a stated 105 outposts, so both 105 and any non-State-land subtotal are floors rather than totals, and the opinion itself says the figure probably does not reflect the true number. The Supervision Unit’s two demolition shares, 28% and 27%, each belong to that sector’s own identifications, 13,481 and 6,605.

Questions readers ask

Which body holds government property in the West Bank?

Military Order 59, which the Commander of IDF Forces in the West Bank Area issued on 31 July 1967, creates a Custodian appointed by the military commander and empowers him to take possession of government property.

Does Military Order 59 contain a declaration procedure?

The 1967 text as published by the Military Advocate General’s Corps runs to eight articles and contains no declaration procedure, no objection window and no appeals committee; the issuing authority’s index lists nine later amendments.

How long must land lie fallow under the Ottoman Land Code?

The Ottoman Land Code states in Article 68 that arable land left uncultivated for three successive years without a valid excuse becomes subject to the right of tapu.

Does the Code say such land reverts to the state?

The Ongley translation states that the land “becomes the right of Tapu” and that the former possessor may have it transferred back to him for its equivalent value, and only if he declines is it transferred by auction.

What did the Supreme Court decide in Elon Moreh?

The Supreme Court held on 22 October 1979 that Order of Possession 16/79 was invalid as to the petitioners’ registered land, about 125 dunams, because the political decision, not a military need, was the dominant purpose.

Did that judgment rule on the Fourth Geneva Convention?

The Supreme Court expressly refrained from deciding the case 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.

Who counts as an absentee under the 1950 law?

Forman and Kedar quote the statutory definition, which reaches anyone who on or after 29 November 1947 was in an Arab country at war with Israel, in a part of Palestine outside the regulations’ jurisdiction, or who abandoned a normal place of residence.

What period does the 1948 statutory record cover?

Forman and Kedar trace a 12-year sequence closing with the Israel Lands legislation the Knesset enacted in late July 1960, and their paper supports nothing after 1960.

How much compensation was paid under the 1953 Law?

Compensation had been paid for 64,500 dunams by 1959, about 170,000 dunams by 1970 and 198,000 dunams by 1988, on the figures Forman and Kedar relay from Israeli sources.

How many unauthorized outposts did the Sason opinion count?

The Prime Minister’s Office published a figure of 105 in March 2005, the author’s own count from partial Civil Administration data, which she wrote “probably does not reflect the true number of outposts in the area”.

Is the West Bank land register computerised?

The State Comptroller reported in Annual Report 70C that registration uses hard-copy registers with no computerised system, and that about 4 years of computerisation had not been completed.

How large is the Civil Administration?

The State Comptroller recorded 314 employees in 2019, 202 of them Israeli civil servants and 112 Palestinian employees, with 25 staff officers representing government ministries.

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, G., and Kedar, A., 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), 809 to 830. DOI 10.1068/d402. Peer-reviewed journal.
• Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (Elon Moreh). Judgment of 22 October 1979. 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 appointed by the Prime Minister, signed 21 June 2012. Official or primary record.
• Ottoman Empire, 1858. The Ottoman Land Code of 7 Ramazan 1274. Trans. F. Ongley, rev. H. E. Miller, London, 1892. Primary and official record, unofficial translation.
• Prime Minister’s Office of Israel, 2005. Summary of the Opinion Concerning Unauthorized Outposts. Published 10 March 2005. Official record.
• State Comptroller of Israel, 2016. Judea and Samaria Area: Activity of the Supervision and Enforcement Unit and Aspects of Land Registration. Annual Report 66b. Official or primary record.
• State Comptroller of Israel, 2021. Staff Officers in the Civil Administration in the Judea and Samaria Region. Annual Report 70C, pp. 55 to 59. Official or primary record.