This article will review the legal history of land law in the occupied
West Bank. It is not a review of the provisions of the Israeli-Palestinian
Interim Agreement of September 25, 1995, pertaining to land law. With the
increased political interest in the Israeli settlements and the various
conflicting interpretations given to the negotiated agreements between
Israel and the PLO regarding the issue, it is hoped that such a review
will provide the needed legal context and background for a better understanding
of these questions.
It is not always remembered that Israel?s interest in the potential of the land it occupied in 1967 for settlement and for cultivation began early on. At the beginning of May 1968 (hardly a year after the occupation) a land survey was already completed and recommendations were drawn up by the Israel Lands Administration, the General Staff?s Settlement Department and the Department of Agriculture.1 These were its findings:

1. There were altogether 525,000 dunums (approximately 131,000 acres)
of state-owned land in the West Bank. This figure represented 10 percent
of the entire land area of the West Bank.2

2. Another 50,000 dunums were in private Palestinian lands. This meant
that the Jordanian government had leased this land to private individuals.

Land Registration

There are several registers of land in existence in the West Bank: those from Turkish and British times and the fiscal ones. None of these gives exact coordinates for the land. The full registration of land made after it was surveyed and mapped and all disputes were settled began with what is called the process of the Settlement of Disputes over Land which began in 1928 by the Government of the British Mandate. The process was continued in Jordan after 1948, but was suspended by an Israeli Military Order in 1968.3 By the time of the occupation, over a third of the area of the West Bank had been fully registered. This meant that, in those areas covered by the registration process, no land was without a registered owner. Any land falling within the area covered by the survey which was not privately claimed, was registered in the name of the Jordanian Treasury. This is what the Israeli surveyor meant by "state land" when they carried out their survey after the first year of occupation. All these state lands were placed under the custody of the newly created position of the Custodian of State Property established under Military Order 59 of July 31, 1967. A further 430,000 dunums were land that belonged to Palestinians who were not in the West Bank when the occupation began and who were called by the Israeli occupation authorities "absentees" and their property officially referred to as "abandoned property." These were held by the Custodian of Abandoned Property established by Military Order 58.

The Settlement of Israeli Jews in the West Bank

The settlement of Israeli Jews in the West Bank began as early as 1968.
The guidelines for further settlements were established in the Allon Plan.
It is noteworthy that this famous and significant plan, which remained for
many years the basis of the settlement policy of the Labor government,
was never discussed by the Israeli cabinet and never adopted.4 Which
land did the Israeli Jews use to build settlements on?
Prior to 1948, Jews bought lands in the West Bank. When the Jordanian government took over, it passed the Custodian of Enemy Property Law and established the office of a Custodian of Enemy Property under whose administration the lands that had been bought by Jews were placed. These amounted to some 30,000 dunums out of the total area of 5.5 million dunums, that is 5 percent of the total area of the West Bank. They were concentrated in two places: the Jerusalem metropolitan area and the Etzion Bloc.5 The Israeli settlement policy was not going to be determined by land legally available. The manner by which the land would be acquired for settlement was secondary. Settlement of the area was a strategic goal. This is why the legal justifications given for land acquisition for settlement changed with time and never seemed to create a deterrent to the policy of settlement itself. In fact, until 1979, many settlements were built on land that was in the private ownership of Palestinians. In some cases, such land was fully registered. It was expropriated and used for settlement building. Such was the case, for example, of the settlement of Beit El near Ramallah.
The legality of taking private land through expropriation for the purpose
of settling Jews was challenged in the 1979 case of Elon Moreh.6 After
this case, expropriation of privately owned land for the purpose of settlement
was discontinued. However, it was replaced by the claim that only state
land could be used for settlement. The legal definition of state land was adjusted to make this possible. Essentially, this meant that the Custodian of State Property previously mentioned could declare any land from amongst the unregistered two-thirds, which was not in active cultivation at the time of the order, as state land. The burden of proving otherwise fell on the Palestinians claiming ownership of the land. The standard of proof was placed too high to make success in such challenges possible.
What made this extensive land grab possible was the suspension of the
land registration process which was achieved by Military Order 291 mentioned
above. It should be pointed out here that land that was claimed as state
land was put under the administration of the Israel Lands Authority which
already administered some 93 percent of the land in Israel. Clearly, then,
through seemingly innocuous incremental steps, the land registration process
was suspended as far as the Palestinians were concerned and continued for
the sole and exclusive benefit of the Israeli Jewish public. This was because
land that was declared by the custodian as state land was, with very few
exceptions, only used for the settlement of Israeli Jews.

Town Planning under Israeli Occupation

Land registration was not the only process by which Palestinian land came to be acquired for the use of Israeli settlers. Town planning was just as important, both in implementing the division of the land between Palestinians and settlements, and in establishing separate administrative structures.
The law in the West Bank defines four types of development plans: regional plans, outline plans, detailed plans and parcellation schemes. Two regional plans were prepared during the time of the British Mandate. The first was the Samaria Regional Plan which covers the northern part of the West Bank and the Jerusalem Regional Plan which covers most of the West Bank. The purpose of regional plans is to provide a context for preparing outline plans for villages. Until the early eighties, there was little interest among the occupation authorities for town-planning matters. The increase in settlement activity and the search for a political accommodation based
on the administrative separation and uneven development between Israeli and Palestinian settlements, living side by side in the same juridical area in the West bank, required that the settlements be given a separate status. It was then that the Israeli Higher Planning Authority in the West Bank claimed that it discovered the two regional plans mentioned above. However, the Israeli settlements were not included in these plans since they were prepared during Mandate times. The Israelis now proceeded to amend these regional plans allocating the largest areas of land for the Jewish settlements. At the time, they demarcated Palestinian towns and villages within a tightly drawn line, failing to take into consideration the natural growth and development of these Palestinian centers of habitation during the lifetime of the zoning plans.
In addition to planning for the future land allocations between the Israeli and Palestinian inhabitants, there was the need to change the road plan of the area to connect the Israeli settlements to each other and to Israel. For this purpose, the Regional Partial Outline for Roads No. 50 was published. This plan, which was not in accordance with this existing law, was based on two earlier plans prepared in Israel: Road Plan T/M/A/3 and the 1983-1986 Plan prepared by the World Zionist Organization which sought to integrate Israeli and West Bank networks, connect settlements to Israel and bypass Palestinian centers of population. Over 1,600 objections were submitted by Palestinian land owners to this plan. The Israeli committee established to hear them announced its rejection of the objections only on March 12, 1991, when there was a scramble by Israeli officials in the West Bank to tie all loose legal ends in preparation for the negotiations.
Clearly then, by the time the negotiations began in October 1991 between Israel and the PLO, the physical as well as the legal changes relating to land - whether to enable the acquisition of land for settlement, the zoning for the future expansion and development of settlements or the road network connecting them to each other and to Israel - were already in place. It was left to the Palestinian negotiators to find legal solutions to these legal dilemmas.
It has already been mentioned that when the occupation began, only 5 percent of the total area of the West Bank was owned by Jews who had bought these lands prior to 1948. By November 1992, one year after the Madrid Peace Conference and the start of the Israeli-Palestinian negotiations, land held by Israel potentially for the use of Israeli settlers constituted more than 60 percent of the total area of the West Bank and 35 percent of the total area of the Gaza Strip. The task facing the Palestinian negotiators was therefore daunting. Israeli settlements in the West Bank and the Gaza Strip remain a great challenge to Palestinian negotiators and a significant obstacle to peace. How the negotiators will meet this challenge in the final-status negotiations between Israel and the Palestinians remains to be seen.

1. Shlomo Gazit, The Carrot and the Stick: Israel's Policy in Judea
and Samaria, 1967-68, B'nai B'rith Books, Washington, D.C., 1995.

2. Note that the figure given by Meron Benvenisti is much higher. He
estimated state land in the West Bank to be 750,000 dunums. See, Meron
Benvenisti, The West Bank Data Project: A Survey of Israel's
Policies, American Enterprise Institute for Public Policy Research,
Washington and London, 1984, p. 31.

3. Military Order 291 of December 1968.

4. Gazit, op. cit., p. 126.

5. Benvenisti, op. cit., p. 31.

6. Izzat Muhammad Mustafa Dwaikat and Others v. the Government of Israel
and Others, HCJ 390/79 (1980, 34 P.D. [1] 1).