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West Bank: a response

14 September 09

A retired Israeli lawyer responds to the article in the June issue on land rights in the West Bank

by Gerald Adler

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.

Professor Gerald M Adler, LLM, JSD, qualified as a barrister in Canada (Ontario), an advocate in Israel, and a solicitor in England & Wales. He taught law at the University of Western Ontario and the Israel Institute of Technology, Haifa. Inter alia, he also served as senior assistant to the Israeli Attorney General. Now retired from practice, Dr Adler has spent the last five years researching “Legal Aspects of the Arab-Israel Conflict Within a Historical and Political Context”, part of which can be accessed on the internet.
A fuller version of this article can be found online at www.journalonline.co.uk/extras/

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donald k leiper

Monday September 14, 2009, 17:00

This article was so precise, and it brought to light many facts of which I was previously ignorant. I only wish we could get a lot of the Israel-bashers in the Scottish Executive to open their minds and to read this.


talknic

Monday January 11, 2010, 07:38

"West Bank: a response 4 Sep 09 - A retired Israeli lawyer responds to the article in the June issue on land rights in the West Bank by Gerald Adler..

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

Yes, it does. However, its intention is only to show that the Palestinians have rights under law. It attempts no more than that. It does not undertake to justify the usurping of Israeli territory, nor undermine Israel's rights. The "demonstrable errors and omissions of fact and law" in Snr Adler's attempt to justify the usurping of other folk's territories and undermine their rights, glare out like a Kippa would at the Hajj.

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

In reality: In [ http://wp.me/PDB7k-6r ] "territories occupied" that have never been withdrawn from, OR territories that have never been [ http://domino.un.org/UNISPAL.NSF/b86613e7d92097880525672e007227a7/46f2803d78a0488e852560c3006023a8?OpenDocument ] legally annexed, Israeli Civil Law is invalid. Occupation is administered under military law.

We see this even in the documents Snr Adler cites.

The [ http://avalon.law.yale.edu/20th_century/hague04.asp#art55 ] Laws of War Art. 55. "The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."

In the Geneva Conventions [ http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5 ] Geneva Conventions Art. 6. "The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2. In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.

"In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143."

"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:"

No "advice" is ever binding. The law itself though, is. The ICJ advises whether a law is applicable. It does not enforce the law. One can choose to break it or not. The UNSC enforces the law if it sees the law has been broken. That is of course unless action is torpedoed by a veto vote. If an action is condemned by the UNSC, then the law has been broken. If action is vetoed, the law still stands, the breach still exists, only action has been prevented.

"Without reasons, the opinion declared that the right of self-defence under UN Charter, article 51 was unavailable against a non-state actor..."

This is simply not true. The ICJ gave its reasons. [ http://www.mfa.gov.il/NR/rdonlyres/514D9726-B235-415E-9A8D-5031E1DD5459/0/SupremeCourtFightingTerror2.pdf ] 53. The ICJ proceeded to examine the argument that justification for the building of the wall is to be found in Israel's right to self defense, as provided in Article 51 of the Charter of the United Nations. It was determined that Article 51 recognizes the existence of an inherent right of self-defense in the case of armed attacks by other states. However, Israel does not claim that the attacks against it are imputable to a foreign state. Even the Security Council's resolutions (no. 1368 and 1373 of 2001), which recognized certain aspects of war against terrorism as included in Article 51 of the charter, do not justify the construction of the wall, since Israel is arguing that the attack against it originates in territory in which it exercises control, and not in territory beyond its control, as was the case in those resolutions."

"...Since 9/11 this position is untenable."

Care to show this in International Law....thx

"The legality of the Fence cannot be divorced from the peril and scale of armed attacks against Israel before and after its construction."

Quite. However, the Israeli Supreme Court ruled portions of it illegal on the basis that it was partially built on private Palestinian property; the injury to the local inhabitants is disproportionate. [ http://www.haaretz.com/hasite/images/iht_daily/D010704/hcfen0604.rtf" (Abridged RFT ) ] The Supreme Court Sitting as the High Court of Justice - [February 29, 2004; March 11, 2004; March 17, 2004; March 31, 2004; April 16, 2004; April 21, 2004; May 2, 2004 ]

1. Since 1967, Israel has been holding the areas of Judea and Samaria [hereinafter "the area"] in belligerent occupation.

4. The Government of Israel held deliberations on the "Seam Area" program (June 23, 2002)......

(4) The Fence, like the other obstacles, is a security measure. Its construction does not mark a national border or any other border.

[ http://www.mfa.gov.il/NR/rdonlyres/514D9726-B235-415E-9A8D-5031E1DD5459/0/SupremeCourtFightingTerror2.pdf Israel High Court Ruling Docket H.C.J. 7957/04 (full judgment PDF) ] [ http://www.haaretz.com/hasite/images/iht_daily/D010704/hcfen0604.rtf (Abridged RFT )]

"The result is that we reject the petition against order no. Tav/105/03We accept the petition against orders Tav/104/03, Tav/103/03, Tav/84/03 (western part), Tav/107/03, Tav/108/03, Tav/109/03, and Tav/110/03 (to the extent that it applies to the lands of Beit Daku), meaning that these orders are nullified, since their injury to the local inhabitants is disproportionate..."

[ http://www.mfa.gov.il/NR/rdonlyres/514D9726-B235-415E-9A8D-5031E1DD5459/0/SupremeCourtFightingTerror2.pdf ] The Supreme Court Sitting as the High Court of Justice - 2005 - International Legality of the Security Fence and Sections near Alfei Menashe:

"Therefore, we turn the order nisi into an order absolute in the following way: respondents no. 1-4 must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent. In this context, the alternative by which the enclave will contain only Alfei Menashe and a connecting road to Israel, while moving the existing road connecting Alfei Menashe to Israel to another location in the south of the enclave, should be examined."

"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."

Legal scholars. Who (illegally) provides civilian infrastructure? Who (illegally) leases, grants or sells the land to settlers and developers? Who (illegally) calls for contract tenders to build apartments? Who (illegally) grants building approvals? Who - fairies?

"Israeli settlements in the OPT barely account for more than 2% of the land area captured in 1967."

2%, 1%, 20% or 100%... The point is completely irrelevant and is in no way a "legal" argument.

"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."

However, Israeli civil law is only applicable in actual sovereign Israeli territory. Not in "territories occupied" or illegally annexed territories.

"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."

Irrelevant. It wasn't implemented. What sort of "legal" argument is being presented here? A Hasbara wish list?

"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."

It could be solid granite. The point is completely irrelevant and in no way a "legal" argument.

"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."

A) Therefore, until there is a peace treaty, it is "territory occupied", Israeli civil law does not apply.

B) Exactly what sovereign Israeli territory was Israel defending in any of the wars? The Arab states did have a right to try and regain the territories of the non-state entity of Palestine they represented.

C) Conventional or customary international law does not differentiate between defensive and aggressive war when it comes to occupation or the acquisition of territory by war/force, for the simple reason that: the civilian population of an occupied territory might not have voted for, or even been able to vote for, the regime in power when war was waged. For example, did the Palestinians vote for ANY of the Governments of Egypt, Syria or Jordan? The answer is of course, NO! Did they vote for ANY of the Governments of the Arab League countries in 1948? The answer is of course, NO!

"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."

Except they are now illegally instituted Israeli civilian law, in "territories occupied" and/or illegally annexed territories.

"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..."

Neither of which applied to the state Government or citizens of an occupier.

"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)."

[ http://wp.me/PDB7k-Q#jews-can-live-anywhere ] None of which say a separate or Jewish "state". In fact, they all say in Palestine, under Palestinian law, as Palestinian citizens, even offering assistance for Jewish immigrants to become PALESTINIAN citizens.

"Article 6 of that Mandate required the Government, inter alia, to facilitate Jewish immigration and encourage close settlement by Jews on the land. "

As Palestinian citizens! After article 6, comes article 7

[ http://unispal.un.org/UNISPAL.NSF/9fb163c870bb1d6785256cef0073c89f/2fca2c68106f11ab05256bcf007bf3cb?OpenDocument ] Article 7: "The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine."

"That Mandate has never been legally repealed."

First line of [ http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+State+of+Israel.htm ] THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, May 14, 1948. "On May 14, 1948, on the day in which the British Mandate over a Palestine expired..."

Had the Zionist colonizers been happy with a homeland in Palestine, instead of a "state", Jewish folk would have been able to live anywhere within the State of Palestine as Palestinian citizens. As it is, the Zionists demanded a state and got it. The Jewish people's council declared a sovereign state [ http://wp.me/PDB7k-Y ] within the boundaries recommended by UNGA res 181. Now Israeli civilians, Jewish, Muslim, Christian or atheist, cannot just live anywhere they please, except of course, in Israel.

"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."

But it was reached in respect of Israel, the Jewish Homeland, which the Zionist colonizers insisted should be a Jewish state. What remains of the non-state entity of Palestine since Jordan and Israel achieved independence, is under no obligation to declare sovereignty. Nor are they able to as long as they do not have full control over all their territories, [ http://wp.me/pDB7k-jA ] an opportunity which has never arisen in the entire history of Palestine. Meanwhile Israel is bound by its Declaration, its declared sovereignty, per UNGA res 181, STILL enshrined in the Declaration.

"A command of the above facts..."

The fact is, the "above facts" aren't facts; they're little more than wishful thinking, cherry pickings, misrepresentations based on the false premise that Israeli civil law is applicable in illegally annexed and "territories occupied".