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WB HLP Legal Guide A Guide to Housing, Land and Property A Guide to Housing, Land and Property Law in the Gaza Strip Law in Area C of the West Bank February 2012 October 2015 A Guide to Housing, Land and Property Law in Area C of the West Bank February 2012 February 2012 Legal advisor: Adv. Michael Sfard Part Five written by: Adv. Emily Schaeffer Language editor: Janet H. Anderson Hebrew-English translations: Shoshana London Sappir Ltd. Cover photo (front): As Sawiya, West Bank, JC Tordai, 2010. Cover photo (back): Jericho District, West Bank JC Tordai, 2009. This publication has been produced with the assistance of the European Commission Humanitarian Aid and Civil Protection. The contents of this publication are the sole responsibility of the authors and can under no circumstances be regarded as reflecting the position or the official opinion of the European Commission Humanitarian Aid and Civil Protection. This publication has been produced with the assistance of the Norwegian Refugee Council. The views expressed in this publication do not necessarily reflect those of the Norwegian Refugee Council. 2 FOREWARD Israel‟s occupation of the West Bank, including East Jerusalem, and the Gaza Strip has presented some of the most considerable challenges to the international legal system in the post-1945 era. The advent of the UN Charter was meant to herald a new world order based on peaceful resolution of disputes, suppression of acts of aggression, and development of friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples. Nevertheless, whether in breach of the general prohibition on the use of force, the unlawful acquisition of territory through the use of force, the prolonged violation of a peoples‟ right to self-determination, systematic civilian settlement of occupied territory, deprivation of the right of a fair and regular trial, and extensive destruction and appropriation of property, the illegality of Israeli practices in the occupied Palestinian territory (oPt) under international law – of which these are but a representative sample – have been notable for their sheer breadth across the international normative spectrum. Given this record, outside observers are usually surprised to find that another feature of Israel‟s prolonged occupation has been what one might call its hyper-legality, by which is meant its extensive use of legislative and regulatory instruments to give effect to its policies in the oPt, accompanied by a conviction that doing so is proof positive of its general commitment to the rule of law. But there is a marked difference between rule of law, and rule by law. Whether through Israeli civilian legislation and military orders, or the selective and distorted application of Ottoman, British or Jordanian codes, there is no shortage of local rules and regulations that Israel has relied upon to fortify its hold on Palestinian lands, even in the face of overwhelming opinion among international lawyers regarding the illegality of the great majority of its actions. What belies this attempt to project a commitment to equity and fairness is, once again, the historical record. However local rules have been used and abused to alienate Palestinians from their property, annex their territory, frustrate their land use planning or impede their freedom of movement, they serve a useful reminder that laws bereft of justice risk becoming the unadorned instruments of oppression. It is in this context that this Guide to Housing, Land and Property Law in Area C of the West Bank should be placed. Thoroughly researched and well written, it is at once a practical tool for lawyers charged with the formidable task of navigating the system of local laws on behalf of Palestinian clients in Area C, and an eye-opening monograph that surveys the range of Israel‟s actions as an Occupying Power. Ardi Imseis Editor-in-Chief Palestine Yearbook of International Law 3 TABLE OF CONTENTS Foreword ................................................................................................................................................ 3 Map of the West Bank .......................................................................................................................... 7 Acronyms ............................................................................................................................................... 8 Introduction ........................................................................................................................................... 9 PART ONE: THE STRUCTURE WEST BANK LEGISLATION ................................................ 12 1.1 Land Issues in the Israeli-Palestinian Conflict ....................................................................... 12 1.2 The Administrative Division of the West Bank ...................................................................... 12 1.3 Layers of Legislation ................................................................................................................. 14 1.3.1 The Law ............................................................................................................................... 14 1.3.2 Military Legislation ............................................................................................................. 14 1.4 Restrictions on Legislative Changes in an Occupied Territory ............................................ 15 1.4.1 Does Israeli Military Legislation Meet the Criteria Set Forth in International Law? .......... 16 1.4.2 The Position of the Israeli Supreme Court ........................................................................... 17 1.4.3 The Dual Legislation System ............................................................................................... 19 PART TWO: LAND OWNERSHIP ................................................................................................. 22 2.1 The Ottoman Land Code .......................................................................................................... 22 2.1.1 Categories of Land ............................................................................................................... 23 2.1.2 The Structure of the Village ................................................................................................. 24 2.2 Acquiring Rights to Land by an Individual ............................................................................ 25 2.2.1 What Constitutes “Cultivation”? .......................................................................................... 26 2.2.2 The Conditions for Maintaining Individual Rights to Land................................................. 28 2.3 The Later Land Laws ............................................................................................................... 28 2.3.1 Annulling the Prohibition on Cessation of Agricultural Cultivation ................................... 28 2.3.2 Demand for Legal Source of Possession.............................................................................. 29 2.3.3 Legislation on Abandoned Land (Mahlul) .......................................................................... 30 2.3.4 Restricting the Possibility to Acquire Rights to Mewat Land .............................................. 31 2.4 The Takeover of Private Miri Land by Squatters .................................................................. 32 2.5 Land Registration ..................................................................................................................... 33 2.5.1 Land Settlement ................................................................................................................... 34 2.5.2 First Registration .................................................................................................................. 36 2.6 Ways of Taking Over Land in the Years 1967-1979 .............................................................. 38 2.6.1 Requisition or Land Seizure Orders ..................................................................................... 38 2.6.2 Expropriation Orders ........................................................................................................... 39 2.6.3 Absentee Land ..................................................................................................................... 40 2.6.4 Closed Military Zones ......................................................................................................... 40 2.7 The Elon Moreh Judgment ....................................................................................................... 41 4 2.8 Declarations of State Land ....................................................................................................... 43 2.8.1 Order Concerning Government Property ............................................................................. 44 2.8.2 The Declaration Procedure .................................................................................................. 46 2.8.3 Objections against Declarations of State Land .................................................................... 47 PART THREE: LAND USE .............................................................................................................. 49 3.1 Planning and Building .............................................................................................................. 49 3.1.1 The Jordanian Planning Law ..............................................................................................
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