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The new expropriation regime in the West Bank - Week 2362 of Occupation
The new expropriation regime in the West Bank
Week 2362 of Occupation
Daniel Breslau

Israel’s takeover of West Bank lands for settlement construction has proceeded
without interruption since 1967. But the legal strategies for carrying out land
acquisition and legitimating it in the eyes of the Israeli public and the
international community have evolved over the 45 years. There are now signs that
the regime of expropriation is once again changing its shape, this time making
even fewer concessions to international law and opinion.


Since the beginning of Israel’s occupation of the West Bank, Israeli courts have
allowed the army to expropriate private Palestinian-owned land. International
law allows for the occupier’s use of land in cases of “military necessity,” and
Israel’s High Court of Justice gave “military necessity” an extremely liberal
interpretation, in effect allowing seizure of land whenever the military
authorities claimed that it would benefit the security of the state.


Thus many of the early settlements were established on private land seized by
the army and legitimated by the court. That was until 1979, when the High Court
of Justice, in the face of a flagrant mockery of the spirit of international
law, ruled that the military could not confiscate land for the sole purpose,
with no security rationale, of establishing a permanent settlement. The extreme
religious settlement of Elon Moreh was forced to relocate, and the era of
military pretexts for the theft of private land for settlements was brought to a
close.


But of course the Elon Moreh decision did not slow the acquisition of
Palestinian land for the illegal settlement enterprise. It led to two new
techniques. The first involved the spurious legal distinction between private
Palestinian lands, and “state lands” to which no one held legal title. The court
declared that private land could not be used for settlements (although military
requisition was still approved), but state lands were fair game. Thus the
courts created a legal avenue for the theft of lands, some of which had been
cultivated for many generations, and all of which constitute the only territory
left for the future Palestinian state.


The other consequence of the landmark Elon Moreh decision was the practice of
seizing hilltops and claiming unauthorized but unofficially-sanctioned outposts.
The networks of religious settler activists, and well placed bureaucrats in the
ministries of defense and housing continued to spread across the central spine
of the West Bank, oblivious to whom the land’s legal owners might be. The Elon
Moreh ruling was bypassed as settlers grabbed hilltops, while government
agencies quickly connected them to the electric grid, water services, and road
network.


Now this thirty-year-old regime of land acquisition, with its dual offensives of
legal procedure for so-called “state lands,” and after-the-fact normalization of
illegal “outposts,” might be undergoing another transformation. Recent years
have placed some obstacles in the path of the settler movements, from the work
of Peace Now, to Dalia Sasson’s government-sponsored expose of the deeply rooted
corruption that enables the illegal settlements. And most recently, in July of
this year, a government-appointed commission headed by retired jurist Edmond
Levy called for an end to the two-faced policy of unofficially promoting
outposts while officially placing them outside the law. The Levy commission
called for the immediate legalization of the outposts, even preserving those
built on private Palestinian land, perhaps compensating the owners.


Despite the Prime Minister’s judgment that the Levy report was too provocative
in the eyes of the US and international community to be formally adopted, it may
nonetheless indicate the wave of the future for Israel’s land-acquisition policy
in the West Bank. Despite tabling the report, the government appears to accept
the commission’s conclusion that the current land-grab regime is untenable and a
new legal framework is needed for settlement expansion to proceed.


After complying with court orders to evacuate the Migron outpost and the Ulpana
neighborhood of Beit El, and promising to evacuate several other outposts built
on private Palestinian land, Israel is making decisive moves to legalize 13
outposts that are not subject to such orders. In April, Israel legalized three
settlements – Bruchin, Sansana, and Rechalim – that had been built years earlier
eithout proper government authorization.


In recent weeks the government is making an additional move that would implement
recommendations of the Levy Commission, by asking that the court reverse a key
component of the Elon Moreh decision. The state has asked the High Court of
Justice to allow settlement construction on private lands that were taken for
ostensibly military purposes. And the construction is to begin will begin with
the areas of Beit El where it would like to resettle the displaced families of
Ulpana. But in all, 44 settlements are built on private land expropriated by the
army before 1979, and the ruling the state is requesting would open up all of
these lands, still owned by Palestinians who have had no access to them for over
30 years.


While the major development of settlements, in terms of population, during the
last twenty years has been in what are now large communities around Jerusalem
and along the green line, the new expropriation regime is aimed at normalizing
and expanding the Israeli colonial presence throughout the West Bank.

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