Monday, July 20, 2009

Land Laws in Judea and Samaria

With the pressure on the settlements issue increasing, it is amazing to read some the "expert opinions" expressed that obviously bear no relation to the facts of land law on the ground. the following information was provided by a Professor of Law from Yale, Gerald Adler.

After the Six Days War in 1967 until December 2000, Israel operated a legal regime in the West Bank designed to maintain public order ‘while respecting, unless absolutely prevented, the laws in force within the territory immediately prior to the occupation’. (Hague Regulations (“Hague”) Article 43 and 4th Geneva Convention (“Geneva IV”) Article 6 (2)). Those obligations require Israel, acting under Hague, Article 55(2) to safeguard the capital of State properties and enjoy the right of use - as administrator.

Israel did not initiate the process by which an Occupying Power takes possession of land as a result of war and transfers the management of it to the Custodian. It was first initiated in
a) 1919 by the British Mandate Government in respect of captured Ottoman territory, and
b) then adopted in 1948 by the Jordanian Government in respect of previously owned Mandate government lands and Jewish owned real estate property located in the West Bank which Jordan captured during Israel’s 1948 War of Independence.

Following the 1967 Six Day War, the Israeli Military Commander continued to follow the same procedure in respect of all State property formerly owned, controlled and managed by Jordan.

Taken together, the Land Laws in effect prior to its capture, regulate the acquisition, utilisation, disposition and registration of all types of land including State Owned land capable of cultivation - classified as Miri; stony and broken land being neither under cultivation nor capable of it - termed Mewat; and, land used for public or general use of the inhabitants of a village designated as Metrukeh.

The law had three main objectives: (i) to bring into productive use, vacant and uncultivated land in order to accommodate population growth and create employment, (ii) to strengthen the government tax base; and (iii) to enable easy and secure transfer of land so as to encourage capital investment in agricultural, residential and commercial development on land appropriate for the purpose.

All these objectives were and still remain paramount today in territory poor in natural resources and lacking investment capital.

The Ottoman Land Code provided that farmers could acquire title to Miri land by uninterrupted possession for ten years. On the other hand, if it ceased to be cultivated for three or more years without lawful excuse, the rights of occupation could be repossessed by the State and resold by public auction, again subject to the same restriction.

However, this notwithstanding, the prevalence of large unregistered tracts of non-urban land in the West Bank and in Jordan discouraged its development. To stimulate economic change, the Jordanian parliament enacted “First Registration of Land Law.” This legislation laid down an administrative process whereby the land was identified, surveyed for delineation, physically inspected and examined for quality prior to registration, subject to the hearing of objections and their administrative disposition. These can be appealed to a three-man quasi-judicial technical committee whose decision is final.

Such was the legal position in respect of Government owned land when Israel took control of the West Bank in 1967. In accordance with the 1907 Hague Regulations (‘Hague’) and the 4th Geneva Convention (‘Geneva IV’), Israel has retained the pre-existing civil law in effect and applies it in those areas where Israel exercises the functions of government.

Israel continues to apply the 1964 First Registration of Land Law and has appointed officials from its own administration who have an official status or professional qualification parallel to those of the Jordanian administrators and who act in accordance with the Jordanian Law.

Aerial surveys of West Bank lands showing those parcels under cultivation or otherwise so as to enable the Israeli Administration to recover jurisdiction over State lands uncultivated for a period in excess of three years.

It should be noted that aerial surveys were not initiated by Israel. In 1945, the Palestine Mandatory Administration undertook a full aerial survey as the foundation of its longitudinal study on efficient utilisation of land under its jurisdiction. During its nineteen years of occupation, Jordan allowed the survey to lapse. Only after the Six Days War did Israel resume the survey on a regular basis for its initial purpose, and is updated regularly.

The State’s right to recover uncultivated land strictly in accordance with the law is not enforced automatically against the Arab farmers. The army's policy is flexible. Until either the State or the occupier/farmer initiates some concrete intention to develop, Palestinians are permitted to resume cultivation after ceasing to do so for a number of years well in excess of the three year limitation period.

Although Israel has placed the burden of proof on the farmer to show continuous use of State land that has, in good faith, been certified by the Custodian to be unoccupied or unworked, such farmer can discharge this burden relatively easily by witness testimony and the aerial surveys referred to earlier.

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