The declaration of land as state land and the registration of state land in the land registry has, since 1967, been the principal method used by Israel to take control of land to build settlements and create land reserves for their future expansion.123 Until then, the state relied on the claim of “military need” to seize private land, which often required that it prove to the High Court of Justice that the taking indeed was a military necessity.
In implementing this procedure, Israel relies on its manipulative use of the Ottoman Land Law of 1858, which was incorporated in British Mandate legislation, and later in Jordanian law. This law was part of the local law at the time Israel occupied the West Bank, and as such has remained in effect. The law states that a person may acquire ownership of farmland and register it in the land registration office (Tabu) after working it for ten consecutive years. If the person ceases to work the land for three consecutive years, the land is considered state land, and possession is transferred to the government. The power to declare land state land and to administer it is given by the Israel military legislation to the Custodian for Government and Abandoned Property in Judea and Samaria.
A parcel of land that is examined prior to registering it as state land is classified as “survey land.”126 Until the check is completed, the Custodian declares the parcel state land and enables
Palestinians who claim rights in the parcel to file an appeal before a military committee within forty-five days of the declaration. At the end of this period, or following the committee’s decision rejecting an appeal that was filed, the land is registered as state land.
From 1979-1992, the Custodian registered 908,000 dunams as state land. The procedure for declaring and registering land as state land was suspended from 1992 to 1996, when Yitzhak Rabin was prime minister. It was re-instituted in 1997.
A substantial portion of the land registered as state land and used to establish settlements and land reserves for their expansion was, even according to a strict reading of the Ottoman Land Law, privately owned by Palestinians. Israel’s illegal seizure of private land was possible, in part, because of the nature of the bureaucratic process in which the taking of control was carried out. Often (primarily in the 1980s), notice of declaration of a particular parcel as state land did not reach the Palestinians, and when it did, the time for filing an appeal had already passed.
Also, for a variety of reasons, Palestinians were unable to successfully compete against the military authorities at the appeals hearing. Even worse, there have been many cases in which Israel related to survey lands (the land that had not been proven to be state land) as if they were registered state land, and allocated them to the settlements.
It should be noted that, even if Israel had followed the strict letter of the Ottoman Land Law fairly and justly, and had not declared privately owned land as state land, the state has acted improperly because it administered the state land in a discriminatory and illegal manner. State land is public property, belonging to the lawful residents of the West Bank. The role of the occupying state, as the temporary substitute for the sovereign, is to administer the public land for the benefit of that public, or to meet its military needs in the occupied territory. Rather than act in this way, since it began to take control of state land, Israel has completely denied the Palestinians their right to use these lands, and has allocated them only for the establishment and expansion of settlements.