The Israeli “land grab” that wasn’t

September 5, 2014

This week saw a settlement paradox. After a six-month silent freeze on new settlement permissions, the Israeli government took an administrative action that does not enable a single Israeli to move across the Green Line, and yet was met with unusual outrage and condemnation from John Kerry, Europe and the UN. Then it launched a building project that would let over 2000 families move across the Green Line in Jerusalem, and not a word of criticism has been heard.

Lets start with the so-called “land expropriation” for settlements, as it has widely been described in the press. That characterization is entirely wrong, and appears to uncritically recycle unsupported allegations in Peace Now press release. The declaration is neither an expropriation, nor for settlements.

Indeed, Israel’s action is not a seizure, a taking, condemnation, expropriation, or confiscation. Nor does it establish a new settlement, expand settlements, or in any way change the demographics of the territory.

As I explain in Commentary:

A determination that land is “state land” is a factual, administrative finding that does not change the ownership of land. In the West Bank – like in the American Wes t– massive amounts of land have no private owners. There is nothing unusual about this; indeed, it is even truer inside the Green Line. Moreover, if Israel is indeed an occupying power, it has a duty to administer and maintain the rule of law, and oversee public resources, both of which require the authorities to know what land has private owners and what does not.

An “appropriation” involves taking something that is someone’s. A designation of land as “state land” requires a determination, based on extensive investigation, that it does not have a private owner. The determination can be challenged administratively and judicially, as Palestinian claimants often do, and sometimes prevail.

In other words, nothing has been taken from anyone, or given to anyone. Thus a “state land” determination does not create any new facts or change ownership.

Moreover, designating an area state land does not mean that a Jewish community can be built on it. Both illegal Jewish and Arab building on state land is often demolished. Authorizing a new residential community would require a vast number of additional administrative and political permissions, none of which appear to be remotely forthcoming. Indeed, those who object to Israel’s recent action also object Jews living or even studying on undisputedly private Jewish-owned land in the West Bank.

The hysteria over this announcement illustrates several points. First, it reflects how detached discussions of “illegal settlements” are from international law. The entire legal argument against settlements rests on one sentence of the Fourth Geneva Convention, which prohibits an “occupying power” to “deport or transfer parts of its own civilian population” into the territory it occupies…

None of that has anything to do with the occupying power determining the ownership status of the land, an action which does not transfer or help transfer, and indeed, has nothing to do with the movement of people.

On the other hand, Israel also announced this week the construction of thousands of housing units in eastern Jerusalem for Arab Israelis. If the Geneva Convention indeed forbids building apartments in occupied territory for one’s nationals, it does so without any ethnic discrimination. The question would not be whether the “settlers” are Jews or Arabs, but whether they are part of Israel’s “civilian population.” Yet on this action, the international community was entirely silent.

The outrage over Israel’s “settlement” actions has no basis in law. Moving people is settlement activity, but only when done by Jews. Not moving people is also settlement activity. “Settlement activity” has just become a term of opprobrium with legal pretensions…

Bibi has quietly done exactly what all his critics in the peace camp have long demanded [by not announcing new settlement construction]. But instead of bringing Abbas to the table, it has sent him on unilateral attacks at the UN and ICC. So instead of giving Netanyahu credit for his silent freeze–credit which would raise serious questions about Abbas’s sincerity–Peace Now and the international community simply define settlements down.

Other useful analysis of the state lands declaration can be found here and here.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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