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The lie of 'state lands': Whitewashing the confiscation of Palestinian land

The outpost of Derekh Avot, sitting on stolen Palestinian land, will soon be whitewashed and its lands will magically turn into ‘state lands’ which will be delivered to the settlers.

By Yesh Din, written by Yossi Gurvitz

Havat Gilad outpost, just south of Nablus. (photo: Yuval Ben-Ami)

A letter from the Officer of the Legal Advisor of the Commander, Judea and Samaria Area – the name the IDF attached to the West Bank – arrived recently at Yesh Din’s offices. The letter said that soon, the Custodian of Government Property intends to announce the lands on which the outpost of Derekh Avot is located as Public Lands (commonly known as “state land”). It further said – feel free to snicker – that prior to making the decision, the Custodian will hold a hearing, in which our clients, the owners of the land, may make their claims to it.

Derekh Avot, notes Peace Now (Hebrew), is one of 16 outposts built partly on stolen Palestinian land (this is a good place to give a shout out to Hagit Ofran, who excels at the Sisyphean and thankless job of documenting the creeping annexation of the West Bank). A report commissioned by the government in 2010, written by Malka Ophri, the chief of the Photo-Analysis Department in the Israeli Mapping Center, found that 60% of the lands controlled by the outpost are lands which were previously tilled by Palestinians, which makes them, according to the laws operative in the West Bank, private lands.

Among the residents of the outpost you may note settler legend and convicted felon Ze’ev Hever (under his original name, Ze’ev Friedman, he was convicted of planting a bomb under the car of a Palestinian leader). The settlers used to quote Zvi Yehuda Kook, the rabbi of the movement, who said that settlers had no problems with “the individual Muhammad,” just with the Palestinians as a group, and hence they have no intention of stealing private Palestinian property.

It was a lie then and it is a lie now. The whole process of declaring lands as “state lands” (although the more accurate name is “public lands”) proves this point. It derives from the fact that confiscation of lands in occupied territory is prohibited in international law, unless for strictly military purposes. After the High Court of Justice forbade the army from declaring settlements as “military bases” in the 1970s – the army and the settlers were thick as thieves even then – the government started using the new schtick of “public lands.” Making a manipulative use of Ottoman land law and the fact the British and the Jordanian authorities never finished registering the lands while ignoring the common law practice of villagers testifying to land boundaries, the government declared lands which went uncultivated for some years as “public lands”, thereby confiscating them from their owners. “Confiscation”, as used here, Is the bowdlerized term for robbery by people in authority.

You’d think that “public lands” would serve the public, i.e. the Palestinian population, since Israel runs the West Bank based on the concept that it is held in wartime occupation. This concept is the basis for all of the military authority there. As noted, according to international law, confiscated lands can only serve for pressing military needs or the benefit of the residents. In practice, however, state lands serve almost without exception for building settlements.

The case of Derekh Avot is particularly malicious. The outpost was built during the Second Intifada, when no one had the time or inclination to deal with fine points of law. When the Civil Administration was forced to examine the status of the lands, it tried – as exposed by Chaim Levinson (Hebrew) – to suppress the report. The reason was simple: the report showed that the land was stolen, plain and simple. In 2010, the government came up with a new trick: it told the High Court that it does not intend to evacuate the outpost – even though orders for its demolition were issued – because of the settlement freeze. The court accepted this position (Hebrew) while criticizing the government for, err, being economical with the truth.

Just how relaxed the settlers have become with this system can be seen by the ad found by Peace Now (Hebrew). A caravan in Derekh Avot is offered for sale, along with a dunam of land. The ad makes it clear that there are no building permits – but building goes on nevertheless.

So now these lands, stolen by force and by government fiat from their legal owners, will become with the scribble of a clerk’s pen, “state lands.” These, in turn, will be turned over to the settlers who already live there, which will retroactively whitewash the long illegality of Derekh Avot’s existence.

Don’t steal, goes the old anarchist maxim; the government hates competition. In this case, the government is splitting the loot with its allies.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din - Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

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  • COMMENTS

    1. aristeides

      Why, if Obama only knew this was going on!

      Reply to Comment
    2. Every Yesh Din post here implies One State as outcome. The destructive effect on law and the High Court through the manipulations you describe will eventually backlash on general Israeli law, particularly the standing of the Court itself. I see a long road of civil rebellion ahead which will force a stark choice on what the law is in itself. I would like to think I know what that choice will be, but do not.

      Reply to Comment
      • directrob

        For Jews there is not so much wrong with the law (but enough to write a book about). The problem starts when Jews come in contact with others.

        Actually according to customary law the others own a lot of now “state” land even within the pre 67 borders. The land should be returned to them and they should be compensated for the use of the land (and of course interest on the compensation). So they should at least be payed about four times the current value.

        Probably hell freezes over before this happens but as the US government says it is an unwise investment to buy West Bank land.

        Reply to Comment
        • When I speak of Israeli law, I always include Arab Israeli citizens, who I think are indeed hampered by jurisprudence (or the lack thereof) coming from the occupation (the Citizenship Law Case a clear example). And, while Jew is mostly a bright line in Israeli law, not so among Israeli leftists who find themselves subject to security apparatus oversight without due process (this has happened to reporters on this site). But you are clearly right that Israeli law fractures at the boundary of race (the refugee cases a non occupation example). I believe these fractures, limiting the oversight power of the Court, will ultimately turn upon some portion of Jewry itself. Long term, all lose.

          Reply to Comment
      • The Trespasser

        >Every Yesh Din post here implies One State as outcome.

        That is because Yesh Din have an agenda to sell.

        >I see a long road of civil rebellion ahead which will force a stark choice on what the law is in itself.

        We’ve already been through two rebellions initiated by Arabs. Wanna third one? Sure, bring ‘em on. Just make sure no-one is bleeding to death.

        Reply to Comment
    3. berl

      important article

      Reply to Comment
    4. The Trespasser

      >It derives from the fact that confiscation of lands in occupied territory is prohibited in international law, unless for strictly military purposes.

      The territory in question is not occupied with accordance of 4th Geneva Convention terms.

      The convention implies that there must be two Powers at least, occupier and occupied, to which sovereignty must be returned as occupation ends.

      Lack of either makes occupation technically impossible.

      The imperfection of the law is to blame of course. Makers of it wouldn’t imagine that some nation would be offered statehood – and declined it.

      Reply to Comment
      • David T.

        “The territory in question is not occupied with accordance of 4th Geneva Convention terms.”

        ROFL. Another expert in international law who thinks that the rest of the world and even the Supreme Court of Israel are driving the wrong way and not himself.

        The next thing you are going to tell us is that Israel’s didn’t even enter the territory which – by the way – is part of UN recognized State of Palestine.

        I could go into legal details. But you are not interested. You only want to spread your tedious propaganda.

        Reply to Comment
        • The Trespasser

          >ROFL. Another expert in international law who thinks that the rest of the world and even the Supreme Court of Israel are driving the wrong way and not himself.

          Since when opinions or interpretations of a majority with clear bias and unclear agenda and jurisdiction, are inherently right?

          >The next thing you are going to tell us is that Israel’s didn’t even enter the territory which – by the way – is part of UN recognized State of Palestine.

          I’m sorry to disappoint you, but until November, 2012 there was no such state, meaning Israel could not enter it in 1967.

          By the way, the legality of the declaration and recognition of the Palestinian State is rather questionable as well. For example, it bases itself on “1967 borders”, but there was no such borders, only armistice lines, which are something completely different.

          >But you are not interested.
          Of course I’m interested. So far I haven’t seen anyone presenting rock-solid legal explanation on the question of alleged “occupation” of Samaria (by the way, did anyone ever bothered to ask Samaritans?)and Judea.

          >You only want to spread your tedious propaganda.

          The best way to fight propaganda is to spread truth. Works either way, mind you.

          Reply to Comment
          • David T.

            “Since when opinions or interpretations of a majority with clear bias and unclear agenda and jurisdiction, are inherently right?”

            So you don’t know what customary law is and how it is created. Do you also think that the judges of the international court of justice in the 2004 wall case have a clear bias and an unclear agenda and jurisdiction?

            “I’m sorry to disappoint you, but until November, 2012 there was no such state, meaning Israel could not enter it in 1967.”

            The international court ruled in the 1920s that Palestine (like all A mandates) was allready a state under mandate. You can argue that it was a failed state after the dissolution of its (mandate) goverment in 1948. But that doesn’t change an international status.

            But according to your ‘logic’ Jordan didn’t occupy the West Bank and it became part of Jordan. So Israel occupied a part of Jordan which gave its territory to the 1988 (re-)declared State of Palestine.

            “By the way, the legality of the declaration and recognition of the Palestinian State is rather questionable as well. For example, it bases itself on “1967 borders”, but there was no such borders, only armistice lines, which are something completely different.”

            I understand. Because partition borders were only recommended Israel’s declaration and recognition is questionable. Was its declaration even sanctioned by its slight Nonjewish majority?

            “So far I haven’t seen anyone presenting rock-solid legal explanation on the question of alleged “occupation” of Samaria (by the way, did anyone ever bothered to ask Samaritans?)and Judea.”

            So far your explanation is based on the obsolete idea that only souvereign state territory can be occupied and not people which are entitled to their territory and self determination. I bet you don’t even understand the concept of the right of self determination and haven’t realizez that international law has become postcolonial long ago.

            Let’s start with something simple. In which borders did Israel proclaim independency? Does Israel control territory outside these borders against the will of its inhabitants?

            Reply to Comment
          • The Trespasser

            >So you don’t know what customary law is and how it is created.

            Nothing makes the customary law indiscriminately applicable in all situations.

            >Do you also think that the judges of the international court of justice in the 2004 wall case have a clear bias and an unclear agenda and jurisdiction?

            Yes, I do. Read judges’ opinions on the case, maybe you’ll learn something new.

            >The international court ruled in the 1920s that Palestine (like all A mandates) was already a state under mandate. You can argue that it was a failed state after the dissolution of its (mandate) government in 1948.
            But that doesn’t change an international status.

            Part of it certainly has changed its status when became Israel, and another – when its population had refused to create a state in 1947.

            >But according to your ‘logic’ Jordan didn’t occupy the West Bank and it became part of Jordan. So Israel occupied a part of Jordan which gave its territory to the 1988 (re-)declared State of Palestine.
            Jordan had practically annexed WB: it’s citizenship was granted to entire non-Jewish population, etc., etc.

            >I understand. Because partition borders were only recommended Israel’s declaration and recognition is questionable.
            It is, by some parties, and not only because of that. Did you know not?

            >Was its declaration even sanctioned by its slight Nonjewish majority?
            Non-Jewish majority has refused to create Jewish homeland in 1919 and had refused to have own state in 1947. You can call it sanctioning, if you please.

            >So far your explanation is based on the obsolete idea that only sovereign state territory can be occupied…
            Yep.
            As far as I know, there is no such term as “occupied territory of people” or “occupied people” under the terms of international law or treaties.

            >… and not people which are entitled to their territory and self determination.
            By your logic any nation in a multinational state is considered “occupied”.

            >I bet you don’t even understand the concept of the right of self determination

            Oh, I do quite well, as a matter of fact. Palestinians had self-determined that there won’t be a bi-national state in 1919, and they also had self-determined that they don’t want to have a state in 1947. Changed their mind and want to re-determine after so many years?

            >and haven’t realizez that international law has become postcolonial long ago.

            So now Israel is a last colonial country on Earth… How touching.

            >Let’s start with something simple. In which borders did Israel proclaim independency?

            Israel was proclaimed without definite borders.

            >Does Israel control territory outside these borders…

            Outside what borders?

            >against the will of its inhabitants?

            And what about those inhabitants who wouldn’t mind to be controlled by Israel yet have to suffer because of their violent brethren?

            Oh, but their will is of no importance – they are traitors and collaborators, right?

            Reply to Comment
          • directrob

            In this case there is no need to know international law. Both the security councel (resolution 476) and the ICJ (ruling on the wall) have spoken.

            “Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention …”

            Reply to Comment
          • The Trespasser

            In this case there is no need to know international law. Both the security councel (resolution 476) and the ICJ (ruling on the wall) have spoken.

            >“Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power …”

            A three-dollar question: What was the “occupied Power” in 1980?
            A – Palestinian People
            B – Palestinian Authority
            C – Palestinian Territory
            D – There was no “occupied power”

            >which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention …”

            Since when exactly the Geneva Convention regulates holy places?

            Reply to Comment
          • directrob

            The anwer to your three dollar question is that it does not matter. At the time of the conflict Jordan claimed the land (It was recognized only by Britain, Iraq and Pakistan).

            “A territory, which by one of the parties to an armed conflict is claimed as its own and is under its control, is – once occupied by the other party – by definition occupied territory of a High Contracting Party in the sense of the Fourth Geneva Convention.”

            Reply to Comment
          • The Trespasser

            >The anwer to your three dollar question is that it does not matter.

            Oh, it does matter. There must be both occupying and occupied Powers, otherwise there is no occupation.

            >At the time of the conflict Jordan claimed the land (It was recognized only by Britain, Iraq and Pakistan).

            And by non-Jewish population of Palestine, who were happily brandishing brand-new Jordanian passports.

            So, the answer in E – Jordan. Very well.

            After we were able to determine that Israel occupies Jordan, as a matter of fact, the Judeophobic nature of UNSC resolution 478 and others released during that time period, has became obvious.

            Reply to Comment
          • directrob

            The occupied land (West Bank, Gaza, Golan Heights, Eastern Jerusalem) is not Jordanian and the Geneva conventions do apply (as does customary law).

            Reply to Comment
          • The Trespasser

            >The occupied land (West Bank, Gaza, Golan Heights, Eastern Jerusalem) is not Jordanian and the Geneva conventions do apply (as does customary law).

            If the occupied land is no-mans land, that 4GC does not apply. If 4GC applies, than the land in question belongs to a state, like Jordan or Syria.

            Reply to Comment
          • JG

            fascist nonsense, like always. anything new under your sun?

            Reply to Comment
          • The Trespasser

            Nothing is new under the sun, silly.

            Reply to Comment
      • Leen

        The Supreme Court of Israel has already dictated that the occupation of the West Bank is an occupation and the 4th Geneva Convention applies to these territories.

        Reply to Comment
        • The Trespasser

          You’ve said by yourself that these are interpretations.

          Reply to Comment
          • Leen

            Nope. I said that the Supreme Israeli court disagrees about the separation wall as a violation of the Fourth Geneva Convention.

            However, the Israeli Supreme court has said the occupation of the West Bank is a belligerent occupation and Israel as an occupying force must abide by the Fourth Geneva Convention.

            Reply to Comment
          • Cliff

            The Israeli Supreme Court has ruled that the lands are occupied.

            No one but settler freaks like you, Tresspassed, actually thinks that Palestinians have no land whatsoever (apart from Jordan har har).

            You are a Nazi.

            Reply to Comment
          • The Trespasser

            >… thinks that Palestinians have no land whatsoever (apart from Jordan har har).

            What “Palestinians”? There is no such ethnicity or nationality.

            Ah, I almost forgot – there is a nationality, since Nov. 2012.
            It is truly unbelievable – the very fact of stealing the toponym and depriving other ethnicities of their ancestral name.

            >You are a Nazi.

            Yeah, sure, whatever you say, leftists scum.

            Reply to Comment
          • Leen

            Again, you seem to have not read my full comment.

            ‘Israel has already been assigned the occupying force by the UNSC (yes even Israel’s closest ally, the US, also considers Israel as an occupying power), ICJ and UNGA. Even the Israeli High Court regards Israel as an occupying power but disagrees with the UNSC that it is a violation of international law but concurs that the 4th geneva is applicable.’

            If the Israeli High Court rules that the territories are in fact occupied, and the 4th Geneva Convention is applicable, then case closed. It is the High/Supreme court that dictates the laws of Israel and as such Israel is obliged to follow the laws of its own country.

            As it stands, the Israeli High Court has decided to follow the interpertations of UNSC and ICJ. I don’t know why you are arguing, if you have a problem, take it up with the Israeli High Court.

            Reply to Comment
          • The Trespasser

            >As it stands, the Israeli High Court has decided to follow the interpertations of UNSC and ICJ.

            Ok. Than why are you protesting against the security wall? If you accept some part of a ruling you should accept the rest as well, don’t you?

            >I don’t know why you are arguing, if you have a problem, take it up with the Israeli High Court.

            Me having a problem? I wouldn’t give a flying f**k. Bibi got problem, which is why he appointed the mentioned commission.

            Reply to Comment
          • Leen

            Where did I mention my opinion about the wall? I merely pointed out that you are in fact incorrect when you say that ‘there is no occupation’ as clearly the High Court of Israel says there is, and as such every court in Israel is legally binded by that ruling. As I said if the High Court rules that it is occupation, then, it is law in Israel. There is no country in the world that does not recognize that Israel’s control over the West Bank is not an occupation.

            But I suppose detracting and ‘changing the subject’ is one of your fortes when someone calls you out on your misinformation.

            Reply to Comment
          • Leen

            You seem extremely misinformed about my posts. I pointed out that there is no country in the world that disagrees that this isn’t an occupation (even Israel rules that it is an occupation). I never once said what my opinions were of the wall or anything.

            I don’t know about you, but just because someone lists a factual information to correct your misinformation, does not mean it is their opinion.

            Reply to Comment
    5. rsgengland

      What is the difference between ‘state land’ and ‘public land’.
      If land is not privately owned, it is under the jurisdiction and control of the State.
      If there is any land in this big world of ours that has a different definition, please show.
      Many countries allow free use of ‘public land’, but when problems or issues arise, it is left to the state to rectify and/or control those problems and any aftermath that results.
      Playing with words and their meaning is all very well, but clarity and reality need to prevail over narrow bias.

      Reply to Comment
      • aristeides

        It would be nice if clarity and reality would prevail over Zionist lies.

        Or didn’t you notice that the land in question is privately owned?

        Reply to Comment
      • Under occupation (or benign custodialship of land belonging to no State), there is no soverign State to claim the land as state. Then, so claiming, one asserts de jure soverignty. Bank residents then become subjects in involuntary servitude of life potential. Civil rebellion for rights will gain traction in the West as legitimate. And all because settlers obey Yahweh.

        Reply to Comment
    6. Nothing much new here. This was the policy of Israel in seizing arab lands within (pre-1967) Israel before 1967 (and for all I know after as well).

      Chase people off land (maybe by declaring it a closed military area), wait 3 years, take note that the land failed to be cultivated for 3-years, and confiscate if from the owners as Israelis state land — and then (I imagine) make a gift of the land from the state of Israel to the JNF, originally a “trust” associated with but not “of” the government, which held land “for the benfit of the Jewish people”, thus keeping ANY benefit away from existing non-Jewish populations within Israel (such as the original owners).

      I think Sabri Jiryis wrote about this pretending-to-be-legal process.

      Reply to Comment
    7. Noevil9

      I don’t mean to disappoint the Jewish friends here that this is Israel since its inception. There is nothing new here, we are just learning more and more about the malicious racist policies that the Zionists came up with day after day to create this State. I don’t wish to state that the bases of creating such a state on illegal and unlawful principals,would makes it what? I care that others don’t get offended, but the realities are slamming us on the face day after day. I don’t want to take away the right of the Jewish people for safety and security, but dig deeper and find what this very intimately desired homeland is built on and at what cost ? Please view and listen to a film made by Anna Bultzer; Witness in Palestine. You will hear something from the humanitarian angle only, of what Israeli practices are on a daily bases. If we are as humans, forget Jews or not Jews are willing to look the other way about what is happening, then there is no good hope for us heading into the right direction, but disaster for all.

      Reply to Comment
      • I don’t think the “racist nature” of Zionism at inception within Palestine is important. Nor was the obviously wholly racist nature of slavery imporant in the American Civil Rights movement. What is important is removing the inequality and injustice of the present.

        Israel was founded as refuge and haven for Jewry. No progress can be made by blotting that out. We must change what is suffered now, where both now live.

        Reply to Comment
        • The Trespasser

          One main problem with Israel is that somewhat significant part of indigenous population is not willing to see any kind of Jewish state here, and would rather suffer and die than let Jews live on the “Holy Land of Palestine”.

          No progress can be maid until these people change their mind.

          Reply to Comment
          • David T.

            Please prove that a “significant part of indigenous population … would rather suffer and die than let Jews live on the “Holy Land of Palestine” and that it’s not a blatant lie.

            Even in 1947 the Arab delegation proposed a secular democracy including minority rights in an independent Palestinian state.

            About the “Jewish state”. As long as “Jewish” is not the citizenship of Israel, a “Jewish state” will only be an Apartheid concept. Even the PLO defines Jews (and their paternal descendents) who lived in Palestine before Mandate times automatically as Palestinians and is neither an ethnic nor a religious definition, but a national (citizenship).

            Reply to Comment
          • The Trespasser

            >Please prove that a “significant part of indigenous population … would rather suffer and die than let Jews live on the “Holy Land of Palestine” and that it’s not a blatant lie.

            My friends in Gaza would prove it to you happily, but you’ll have to go there.

            >Even in 1947 the Arab delegation proposed a secular democracy including minority rights in an independent Palestinian state.

            Yeah, exactly. You see, the truth is that no reasonable human being would want to be a minority in a deemed to failure Arab state.

            >About the “Jewish state”. As long as “Jewish” is not the citizenship of Israel, a “Jewish state” will only be an Apartheid concept.

            That’s a chunk of incomprehensible nonsense.

            >Even the PLO defines Jews (and their paternal descendents) who lived in Palestine before Mandate times automatically as Palestinians and is neither an ethnic nor a religious definition, but a national (citizenship).

            Oh, than them so much. But their kind offers was 28 years and few massacres late in 1947. Apparently, Jews had not forgotten that Palestinian friend of Hitler – what was his name?

            Reply to Comment
          • David T.

            “My friends in Gaza would prove it to you happily, but you’ll have to go there.”

            So you can’t prove it, liar.

            “Yeah, exactly. You see, the truth is that no reasonable human being would want to be a minority in a deemed to failure Arab state.”

            Yeah, reasonable human beings want to colonialize a territory and then expell and denationalize its inhabitants to become a majority.

            “That’s a chunk of incomprehensible nonsense.”

            Is that your comment when you have nor argument?

            “But their kind offers was 28 years and few massacres late in 1947.”

            How kind was the Jewish answer to this propoasal? I mean besides countless massacres and expulsions, dispossessions and lootings in 1948?

            “Apparently, Jews had not forgotten that Palestinian friend of Hitler – what was his name?”

            Yithzak Shamir – member of the Lehi terrorist gang which offered Nazis an alliance on the base of a totalitarian state in Palestine. I assume that he was one of the less than half Jews in Palestine who actually became Palestinian before 1948. I’m sure that Jews didn’t forget him. They made him prime minister in a country in which most streets and places are named after his fascist loving mentor Jebotinsky.

            “What “Palestinians”? There is no such ethnicity or nationality.”

            I hope you don’t say this nonsense, because you or you ancestors are illegal immigrants. Cause Jews in Palestine who were Ottomans before 1925 or had not automatically acquired citizenship in Palestine before 1948 will tell you otherwise.

            Reply to Comment
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