Thursday, October 4, 2012

The new expropriation regime in the West Bank

Week 2362 of Occupation

Israel’s takeover of West Bank lands for settlement construction has proceeded without interruption since 1967. But the legal strategies for carrying out land acquisition and legitimating it in the eyes of the Israeli public and the international community have evolved over the 45 years. There are now signs that the regime of expropriation is once again changing its shape, this time making even fewer concessions to international law and opinion.

Since the beginning of Israel’s occupation of the West Bank, Israeli courts have allowed the army to expropriate private Palestinian-owned land. International law allows for the occupier’s use of land in cases of “military necessity,” and Israel’s High Court of Justice gave “military necessity” an extremely liberal interpretation, in effect allowing seizure of land whenever the military authorities claimed that it would benefit the security of the state.
Thus many of the early settlements were established on private land seized by the army and legitimated by the court. That was until 1979, when the High Court of Justice, in the face of a flagrant mockery of the spirit of international law, ruled that the military could not confiscate land for the sole purpose, with no security rationale, of establishing a permanent settlement. The extreme religious settlement of Elon Moreh was forced to relocate, and the era of military pretexts for the theft of private land for settlements was brought to a close.
But of course the Elon Moreh decision did not slow the acquisition of Palestinian land for the illegal settlement enterprise. It led to two new techniques. The first involved the spurious legal distinction between private Palestinian lands, and “state lands” to which no one held legal title. The court declared that private land could not be used for settlements (although military requisition was still approved), but state lands were fair game. Thus the courts created a legal avenue for the theft of lands, some of which had been cultivated for many generations, and all of which constitute the only territory left for the future Palestinian state.
The other consequence of the landmark Elon Moreh decision was the practice of seizing hilltops and claiming unauthorized but unofficially-sanctioned outposts. The networks of religious settler activists, and well placed bureaucrats in the ministries of defense and housing continued to spread across the central spine of the West Bank, oblivious to whom the land’s legal owners might be. The Elon Moreh ruling was bypassed as settlers grabbed hilltops, while government agencies quickly connected them to the electric grid, water services, and road network.
Now this thirty-year-old regime of land acquisition, with its dual offensives of legal procedure for so-called “state lands,” and after-the-fact normalization of illegal “outposts,” might be undergoing another transformation. Recent years have placed some obstacles in the path of the settler movements, from the work of Peace Now, to Dalia Sasson’s government-sponsored expose of the deeply rooted corruption that enables the illegal settlements. And most recently, in July of this year, a government-appointed commission headed by retired jurist Edmond Levy called for an end to the two-faced policy of unofficially promoting outposts while officially placing them outside the law. The Levy commission called for the immediate legalization of the outposts, even preserving those built on private Palestinian land, perhaps compensating the owners. More