West Bank: a response

Fraser Ritchie’s “Unequal Before the Law” (Journal, June, 22) exhibits several demonstrable errors and omissions of fact and law.

In reality the injury to the Palestinians is much less severe than that which he portrays.

The land at Jayyous

• Mr Ritchie implies that land “taken from Jayyous” for the Jewish settlement of Zufin was improperly leased from the Israeli Custodian of Enemy Property. In fact, a very substantial parcel was acquired directly from its Arab owner in an arm’s length transaction for good consideration.
• Mr Ritchie omits to mention that Jayyous petitioned Israel’s Supreme Court for judicial review of the route of the security barrier (“the Fence”, 96% of which is electronically wired fence construction rather than a wall), which prevents the free access of Palestinian owners to their lands on its western, “Israeli” side. Although the decision is still pending, the Israel Defence Forces (“IDF”) conceded that the “warning distance” between the Fence and the nearest Jewish settlements could be reduced, thus returning some 500 acres of privately owned and 90 acres of “state” land to the Palestinian side.
• The article states the percentage of Jayyous land lying on the Israeli side of the Fence and “isolated” from the village as 78%. The true figure is approximately 60%. If the court accepts the IDF concession, that will fall to about 40%.
• It is stated that that land can only be accessed through a single gate, opened and shut at specified times, and “Only 18% of people with land have [entry] permits”. However the Israeli Civil Administration issues an entry permit to all inhabitants possessing a sufficient interest in land within the restricted area. The probability is that only 18% have land such as to justify a genuine need to gain entry. There are also three gates and not just one. Two are open three periods each day; the third remains open throughout daylight hours.
• Mr Ritchie asserts that the “Seam Zone” (the area between the 1948 Armistice “Green Line” and the Fence) penetrates up to 6.5km into Occupied Palestinian Territory (OPT). This is not so. In the Jayyous area, it ranges from hundreds of metres’ distance to 3km at most.

Legal issues

Mr Ritchie states: “Israel says non-registered land in the OPT is public land.” Israel makes no such claim! The reverse may be true. He fails to differentiate non-registration of title to land from an individual’s ability to acquire the right to cultivate Miri land (see later) by adverse possession and also, according to law, bear the risk of loss of such right by failing to cultivate it.

Despite the hearsay anecdotal evidence in the book Palestinian Walks, on which Mr Ritchie relies, state land is not allocated to private developers or individuals before completing the full declaratory process.

Any Israeli or Palestinian is free to petition the Israeli Supreme Court for judicial review of IDF decisions on the line of the Fence, and to compel the IDF to lead evidence proving: (a) a rational connection between the route of the Fence and the goal of its construction as being necessarily military in its objectives and not political; (b) the route chosen being the least injurious to the petitioner without sacrificing that defence objective; (c) the damage caused to the petitioner being proportionate to the anticipated security gain. All three subtests must be satisfied simultaneously. Since the commencement of construction of the Fence, over 150 applications have been submitted. Approximately 50% have been withdrawn and 38 remain to be decided.

Mr Ritchie’s reliance on the opinion of the International Court of Justice on the legality of the “Wall”, as having binding effect is questionable:

• Without reasons, the opinion declared that the right of self-defence under UN Charter, article 51 was unavailable against a non-state actor. Since 9/11 this position is untenable.
• The opinion rendered was “advisory” and without weighing Israel’s security considerations. It virtually concluded that her action was politically motivated. A detailed examination of the facts would have shown the contrary.

The legality of the Fence cannot be divorced from the peril and scale of armed attacks against Israel before and after its construction. After the collapse of Final Status negotiations with the PLO in 2000, the Palestinians began an indiscriminate campaign of terror against Israeli citizens both in the OPT and in Israel. By April 2004, more than 780 terrorist attacks had been perpetrated within Israel and more than 8,200 in the OPT, costing 900 Israeli citizens’ lives and over 6,000 severely injured. Since commencement of its construction in 2003, the Fence has directly reduced the number of attacks and consequent fatalities.

Mr Ritchie accepts uncritically the Palestinians’ claim that Israeli settlement activity following the 1967 occupation is contrary to international law and is therefore illegal. The claim is rooted in article 49(6) of the Fourth Geneva Convention (“Geneva IV”): ”The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. Legal scholars disagree that this provision was ever intended to mean a voluntary, non-coercive movement of a civilian population.

Status of the West Bank

The declared objective of Mr Ritchie’s Quaker sponsor and that of EAPPI, the programme organiser, is to bring about the cessation of Israeli “occupation” in the West Bank. The real issue, which both they and Ritchie avoid, is not opposition to the “occupation”, but Arab-Islamic opposition to any Jewish right of presence in the West Bank. Israeli settlements in the OPT barely account for more than 2% of the land area captured in 1967. As a result of the IDF troop withdrawal in accordance with Oslo II, Fatah and Hamas – and not Israel – currently exercise personal jurisdiction over approximately 97% of the Arab population, as they do in respect of over 65% of the West Bank territory. In the failed Final Status negotiations of 2000, Israel offered to withdraw from approximately 97% of the OPT, making up the 3% balance in a land swap.

Apart from Jewish neighbourhoods in East Jerusalem, the majority of the relatively small proportion of land in the West Bank utilised by settlers is located mainly on stony hilltops, incapable of being cultivated or developed without a large input of investment capital.

Israel’s presence on the West Bank dates from the 1967 Six Days War in which Israel, acting in pre-emptive self defence under UN Charter, article 51, repelled a planned armed attack by the united forces of Egypt, Syria and Jordan. Neither conventional nor customary international law requires Israel to withdraw from territory captured in a self-defensive war until she and her opponent conclude a peace treaty.

In governing the OPT since 1967, Israel takes into account “the laws in force within the territory immediately prior to the occupation” (article 43, Hague Regulations (“Hague”); and article 6(2), Geneva IV), and in particular, Hague article 55 which obliges the occupying power to “safeguard the capital of [state] properties, and administer them in accordance with the rules of usufruct”.

The British Mandatory Government introduced the statutory process of taking possession of immoveable Ottoman state property by military order and transferring its management to the Custodian of Absentee and Enemy Property (the “Custodian”) in 1919. Jordan did likewise in 1948.

The Israeli military commander, following the same procedure in 1967, imposed a duty on the Custodian to manage OPT state lands in accordance with the pre-existing land law.

The land law

The substantive land laws applying in the West Bank are based principally on the 1858 Ottoman Land Code, amended by the British Mandate and Jordanian Governments under their respective jurisdictions. They remain substantially unaltered.

The law had two main objectives: (i) to bring vacant and uncultivated land into productive use in order to accommodate population growth and create employment; and (ii) to strengthen the Government’s tax base. Of the five types of Ottoman landholding, one termed Miri regulates land located outside urban areas and capable of cultivation. This applies in Jayyous and its surroundings. The law provides that the bare title (“rakva”) to such lands is vested in the state (now represented by the IDF commander), from whom even an individual can acquire rights of use (“te’tsaruf”) either by grant from the state or by 10 years’ uninterrupted adverse possession. In territory poor in natural resources and lacking investment capital, cultivation of land was more important than title. Thus the Ottoman law permitted the state to recover Miri land uncultivated for three consecutive years without reasonable justification.

Prior to and during Jordanian occupation, the law provided only for registration of land transactions, which are personal in nature and no guarantee of good title. There was no comprehensive registration of title based on land “settlement” – a process which includes cadastral surveying, measurement, initial boundary setting, quasi-judicial hearing, determination of objections and finally registration. Since approximately two thirds of the non-urban land in the West Bank remained “unsettled”, development was retarded. Jordan therefore enacted the First Registration of Land Law, 1965 to stimulate economic change, legislation which Israel continues to apply.

First registration requires proof of title. In the case of Miri land, a claimant by adverse possession must demonstrate that he or his immediate ancestors both occupied and cultivated the land continuously for a 10 year period without objection. If, however, Miri land ceases to be cultivated for three years, under the Land Law it becomes “vacant” land (“mahlul”) or waste land which reverts to being state land. A claimant may still possess a right of occupation even if the land has not undergone first registration, but after having successfully completed the process the weight of proof in support of his right is much greater.

In order to determine which lands were Government owned in a practical and evidentiary manner, the IDF military commander exercised his authority to declare land which apparently has been abandoned or uncultivated, as state lands. Prior to issuing such declaration, however, 45 days’ notice of his intention is published in the civilian co-ordination and communication centres, and notice is served on the leaders of the relevant village, giving objectors an opportunity to prove otherwise. Only after a very thorough examination of the state of cultivation of the land and confirmation that it had not been worked for a period even extending up to 10 years, as against the legally permitted three years, is the land declared state land.

Jewish rights of settlement

Notwithstanding the 1967 military conquest, Israel has an independent legal claim of occupation and settlement in the West Bank, stemming from the 1920 San Remo Peace Conference, in which the Ottomans ceded all claims to Palestine in favour of the establishment of a Jewish homeland there under a Mandate administered by Britain (Treaty of Sèvres, 1920, article 95; Palestine Mandate, 1922).

Article 6 of that Mandate required the Government,inter alia, to facilitate Jewish immigration and encourage close settlement by Jews on the land. That Mandate has never been legally repealed. In fact,

UN Charter, article 80 specifically preserves the terms of existing international instruments such as mandates and protects the rights granted to peoples thereunder until such time as trusteeship agreements are concluded within the framework of the UN Charter. No such agreement was ever reached in respect of Palestine.

A command of the above facts will hopefully allow Mr Ritchie to reassess his stringent condemnation of Israel.

A fuller version of this article can be found online at The Combined Standard Clauses (2009 edition)