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The Archaeology of Land Law: Excavating Law in the West Bank

Published online by Cambridge University Press:  28 February 2019

Natalie Orpett
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Abstract

Land law in the West Bank is a mess of multi-layered legal regimes representing the complicated political history of the region. From this confusion flow some of the most contentious issues in the Israeli-Palestinian conflict today, such as the legitimacy of settlements and the legality of the security barrier. Whether one's concerns regarding the “Question of Palestine” are humanitarian or political, one fact is clear: the legal muddle of land law must be addressed.

But addressing the law first requires that we understand what that law is. This paper is not an investigation of the relative legitimacy under domestic or international law of each of the innumerable changes that were made to land law over the course of multiple legal regimes. Rather, it attempts to develop a purely descriptive answer to the seemingly straightforward question: what is the state of land law? To do this, I reconstruct the law of land as much as possible, from the still-operative, sedimentary layers of Ottoman, British, Jordanian, Israeli, Palestinian and international law. In compiling this information, I hope to contribute to the efforts to fully understand where we are, so we can honestly assess where we may go from here.

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Articles
Information
International Journal of Legal Information , Volume 40 , Issue 3 , Winter 2012 , pp. 344 - 392
Copyright
Copyright © 2012 by the International Association of Law Libraries. 

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References

1 Int'l Monetary Fund, Recent Experience and Prospects of the Economy in the West Bank and Gaza (Sept. 2012), available at http://www.imf.org/-external/country/WBG/RR/2012/091912.pdf.Google Scholar

2 See, e.g. U.S. Dept. of State, 2010 Investment Climate Statement - West Bank and Gaza (Mar. 2010), available at http://www.state.gov/e/eeb/rls/-othr/ics/2010/138910.htm; The World Bank, The Underpinnings of the Future Palestinian State: Sustainable Growth and Institutions 7 (2010); The World Bank, A Palestinian State in Two Years: Institutions for Economic Revival (2009).Google Scholar

3 The operative land law today therefore cannot be stated without a full survey of each layer. “At the bottom level are the Ottoman laws. The British Mandate held Palestine's sovereignty in trust, and also passed laws that applied to all of Palestine. After the founding of the state of Israel, the West Bank… was annexed by Jordan, which applied its laws there…. Following Israeli occupation in 1967, the military commanders… passed their own respective series of military orders.” Gamal Abouali, Continued Control: Israel, Palestinian Water and the Interim Agreement, 9 Palestine Y.B. Int'l L. 64, 71 (1996-97).Google Scholar

4 Even though the West Bank has seen relatively promising economic growth, its economic development is severely restricted by the pervasive uncertainty around property ownership. See generally Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000).Google Scholar

5 The conflicting claims to sovereignty over East Jerusalem have led to a markedly different legal history than that experienced in the West Bank. Israel applies domestic Israeli law rather than military law to East Jerusalem, see infra, note 107, and East Jerusalem is not subject to the legal regime arising out of the Oslo Accords. A thorough legal analysis of East Jerusalem is thus beyond the scope of this paper and merits a separate discussion.Google Scholar

6 As a preliminary matter, it must be acknowledged that the research for this paper was limited to English-language source material. There is undoubtedly a wealth of additional material in Arabic, Turkish, and Hebrew; unfortunately, such resources were not consulted here. Consequently, sources vary from legal journals to anthropological studies to policy papers. Issues of land law are often subsumed in writings about other legal and political matters. Many such materials are contemporary to the period discussed, meaning that they may be biased by the political vantage point of a particular author. Given that the subject is inseparable from the continuously contentious conflict in the region, neutral information often seems impossible to come by. With admittedly incomplete information, I have tried to piece together the complex evolution of land law in the West Bank. Any factual errors are my own.Google Scholar

7 The protection of private property is a core value in international law, deriving from three main sources: humanitarian law (in particular, the Hague and Geneva Conventions), the law of nations (the acquired rights doctrine protecting private property during and after state succession), and human rights law. Gail J. Boling, “Absentees’ Property” Laws and Israel's Confiscation of Palestinian Property: A Violation of U.N. General Assembly Resolution 194 and International Law, 11 Pal. Y.B. INT'L L. 73, 112 (2000-2001). See also Eyal Benvenisti and Eyal Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, 89 Am. J. of Int'l L. 295 (1995). However, as this paper focuses on surveying the state of land law, rather than the relative performance of the various legal regimes in respecting private property rights, my investigation into international law will be limited to those conventions regulating the scope of an occupying power's authority vis-à-vis the status quo land law regime. Analysis of the different legal regimes’ treatment of private property rights and compliance with international law vis-à-vis the individual, including human rights law, is extensive. See, e.g., Boling, supra note 7; Benvenisti & Zamir, supra; Orna Ben-Naftali, Aeyal M. Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 Berkeley J. Int'l L. 551 (2005); Geremy Forman, A Tale of Two Regions: Diffusion of the Israeli “50 Percent Rule” from the Galilee to the Occupied West Bank, 34 Law & Soc. Inquiry 671 (2009); Ian Lustick, Israel and the West Bank After Elon Moreh: The Mechanics of De Facto Annexation, 35 Middle East J. 557 (1981).Google Scholar

8 Literally, ‘in a state of being born.’ In public international law, a state in statu nascendi exists when a people are “recognized by the international community, and by interested parties, as having an entitlement to statehood,” the Palestinian people being the prime example. Ian Brownlie, Principles of Public International Law 77-78 (7th ed. 2008). See also Sanford R. Silverberg, Diplomatic Recognition of States in Statu Nascendi: The Case of Palestine, 6 Tulsa J. Comp. & Int'l L. 21 (1998).Google Scholar

9 Silverberg, supra note 8.Google Scholar

10 For further discussion, see infra Part II, section B.Google Scholar

11 See infra Part III, section D for additional discussion.Google Scholar

12 The legality under international law of each one of these regimes in and of themselves has been contested. See, e.g. Henry Cattan, Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict 65-68 (1973) (arguing that the British Mandate for Palestine was itself illegal under international law because it violated the letter and spirit of Article 22 of the Covenant of the League of Nations, ignored the sovereignty and self-determination rights of the Palestinian people, and conflicted with pledges made by Allied Powers to Arabs during World War I).Google Scholar

13 Of course, each of the subsequent authorities in the West Bank have contested that they should not be bound by these Conventions, arguing that the legal status of their authority over the West Bank was not as an occupying power. The British Mandate was, it may be argued, sanctioned as legal under international law by virtue of its being authorized by the League of Nations. However, it should be noted that what constitutes a “legal” sovereign entity - or, conversely, what constitutes an occupation - has shifted since the 1920s. For a critique claiming that the British Mandate was illegal under international law, see Cattan, supra note 12. Jordanian and Israeli authorities have, at times, argued that their control over the West Bank is not that of an occupier. Jordan claimed to annex the West Bank so that it became an integrated part of the state of Jordan. This claim was rejected by the entire international community other than Pakistan and Great Britain. Benvenisti & Zamir, supra note 7, at 299 (1995). Israel's claims about the legal designation of the West Bank have been inconsistent. In its public statements, Israeli administrations have typically claimed that the West Bank is “disputed” rather than occupied. Tobias Kelly, “Jurisdictional Politics” in the Occupied West Bank: Territory, Community and Economic Dependency, 31 Law & Soc. Inquiry 39, 44 (2006). Conversely, the Israeli Supreme Court, sitting as High Court of Justice, has held on multiple occasions that Israel is a belligerent occupier for purposes of Hague Convention applicability, see, e.g. HCJ 390/79 Dweikat v. Israel, 34(1) PD 1, 13 [1979] (Isr.); HCJ 507/72 Arnon et al v. Attorney-General et al 27 (1) PD 233 [1979] (Isr.); HCJ 606/78 Ayub et al v. Minister of Defence et al, 33(2) PD 113 [1985] (Isr.); HCJ 785/87 Affo v. Commander Israel Defense Force in Judea and Samaria, 42(2) PD 4, 38 [1988] (Isr.). Most scholars agree that Israel's treatment of the West Bank has been de facto that of a belligerent occupier. Benvenisti & Zamir, supra note 7, at 299; Eyal Benvenisti, The Origins of the Concept of Belligerent Occupation, 26 L. and History Rev. 622 (2003).Google Scholar

14 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex, Regulation Concerning the Laws and Customs of War on Land, Pmbl., 36 Stat. 2277, 205 Consol. T.S. 277 [hereinafter Hague Convention].Google Scholar

15 Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War art. 64, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].Google Scholar

16 The Hague Convention was ratified in 1907. Although the Convention originally applied only to signatories, most scholars agree that it has since become customary international law binding on all state actors, regardless of signatory status. See, e.g. Boling, supra note 7, at 117 (stating that “[i]t is undisputed that as of 1946 (and probably as early as 1939), the 1907 Hague Convention (IV) and Regulations annexed thereto had achieved the status of customary international law.” The International Court of Justice has held that the Hague Convention and its Regulations (of which Article 43 is a part) constitute customary international law. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 167 (Jul. 9). Alternatively, many scholars claim that the Hague Convention should be understood as a codification of pre-existing customary international law, such that the treaty itself did not “become” customary international law as much as it simply recorded it. See e.g. Abouali, supra note 3 at 83 n.83 (explaining that “The Hague Regulations have been widely seen as codifying international customary law at least since the time of the Nuremberg Trials.”).Google Scholar

17 See Hague Convention, supra note 14, arts. 48-56.Google Scholar

18 See, e.g., Abouali, supra note 3, at 85; Boling, supra note 7, at 114-15.Google Scholar

19 Hague Convention, supra note 14, art. 55.Google Scholar

20 Hague Convention, supra note 14, art. 43.Google Scholar

21 Forman, supra note 7, at 688. See also Iain Scobbie, H2O After Oslo II: Legal Aspects of Water in the Occupied Territories, 8 Palestine Y.B. Int'l L. 79, 86-87 (1995).Google Scholar

22 See, e.g., Abouali, supra note 3, at 83-87 (discussing the parameters of the Hague Convention with respect to water ownership and rights in the Occupied West Bank). Interestingly, even the High Court of Justice of Israel has held, in the Beit-El-Toubas and Elon Moreh cases, that the Hague Convention is applicable in the current Israeli occupation of the West Bank. Lustick, supra note 7, at 558-564.Google Scholar

23 The Fourth Geneva Convention was passed in 1949. It was part of a series of treaties signed in the wake of World War II, which now comprise the foundations of international law regarding humanitarian treatment and war. Like the Hague Convention, there is a dispute among scholars as to its applicability at various stages of the West Bank's history. For instance, there is disagreement as to the question of the applicability of the Fourth Geneva Convention in West Bank today. The International Court of Justice has held that the Geneva Convention is applicable in the West Bank. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 167 (Jul. 9). However, Israel's High Court of Justice has held that the Fourth Geneva Convention, while applicable to the Israeli Military Administration in its operations in the West Bank, is not enforceable in Israeli courts because the West Bank cannot be considered a signatory to the Convention. George E. Bisharat, Land, Law and Legitimacy in Israel and the Occupied Territories, 43 Am. U. L. Rev. 467, 537 n.422 (1994) (citing Raja Shehadeh, Occupier's Law 43 (2d ed., 1988)). For a thorough discussion of the debates over the applicability of the Fourth Geneva Convention to the West Bank, see Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int'l L. J. 65 (2003).Google Scholar

24 Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War art. 64, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.Google Scholar

25 The wording of the Convention, beginning in the original with “[t]he penal laws…” is somewhat misleading. “The penal laws” refers not only to criminal law, but is generally understood to refer to laws that are codified in statutes. There has been some debate as to whether these laws should also include caselaw, but application of the provision is accepted to be required for statutory law, whether criminal or civil. See Forman, supra note 7, at 698.Google Scholar

26 See Part II, supra.Google Scholar

27 Quigley, John, Judicial Autonomy in Palestine: Problems and Prospects, 21 U. Dayton L. Rev. 697, 699 (1996).Google Scholar

28 See generally Frederic M. Goadby and Moses J. Doukhan, The Land Law of Palestine (1935).Google Scholar

29 Bisharat, supra note 1515, at 472-473.Google Scholar

30 This system was called musha'a. Study of the musha'a system of collective rights has apparently engendered a great deal of academic controversy. See generally Kenneth W. Stein, The Land Question in Palestine, 1917-1939 (1984); Raphael Patai, Musha'a Tenure and Co-operation in Palestine, 51 Am. Anthropologist 436, 441 (1949); Bisharat, supra note 15, at 492-493.Google Scholar

31 Norman Bentwich, The Legal System of Palestine Under the Mandate, 2 Middle East J. 33, 33-34 (1948).Google Scholar

32 Raja Shehadeh, The Law of the Land: Settlements and Land Issues Under Israeli Military Occupation 14-16 (1993). Importantly, the three categories of land whose ultimate ownership rested with the Ottoman Empire itself involved very different types of land tenure. Mawat land is often translated as “dead land;” it referred to wasteland, deserted land or unclaimed land. Land designated as matrouk was communal to all inhabitants of the Ottoman Empire and included pastures, forests, roads and the like. Miri land was a more restricted type of tenure; it included such sub-categories as musha'a land, where ultimate title rested with the Ottoman Empire, the land was held in usufruct by an entire village in common, and cultivation rights were granted on a regular basis to specific individuals or families. Patai, supra note 30, at 438 n.9.Google Scholar

33 In 1863, the Ottoman Empire enacted “betterment” measures to divide land among individual owners and complete registration for that land in their names. Patai, supra note 30, at 441.Google Scholar

34 Shehadeh, supra note 32, at 14.Google Scholar

35 Id.Google Scholar

36 Gadby, Frederic M. and Doukhan, Moses L., The Land Law of Palestine 13 (1998).Google Scholar

37 Patai, supra note 30, at 438 n.9.Google Scholar

38 The move toward compulsory registration of all land transactions and mandatory registration of certain types of land occurred in stages. Earlier laws apparently introduced the concept of compulsory registration; the Law of Disposition finally affirmed that all dispositions of miri, mulk and waqf land were required to be registered in the Ottoman registry called the Tapu Office. For a detailed description of the evolution of land registration laws under the Ottoman Empire, see Gadby & Doukhan, supra note 36, at 294-299. This volume, originally published in 1935, is the statement of land law commissioned by the “Palestine Government” under the British Mandate.Google Scholar

39 Patai, supra note 30, at 441. See also Bisharat, supra note 15, at 494.Google Scholar

40 Bisharat, supra note 15, at 494.Google Scholar

41 Id Google Scholar

42 Patai, supra note 30, at 441 n.18.Google Scholar

43 Id. at 441 n.18.Google Scholar

44 Kassim, Anis F., Legal Systems and Developments in Palestine, 1 Palestinian Y.B. Int'l L. 19, 21–22 (1984); see also Bentwich, supra note 31, at 33-34. Legally, the start and end of the O.E.T.A. (South) stage of military occupation is somewhat nebulous. British military occupation was overtaken by a British civilian administration in 1920, but this administration was not confirmed by the international community - and therefore not legitimized - until either 1922, when the League of Nations first voted for the British Mandate, see Martin Bunton, Inventing the Status Quo: Ottoman Land Law During the Palestine Mandate, 1917-1936, 21 Int'l Hist. Rev. 28, 31 (1999), or 1923, when the British Mandate for Palestine actually came into effect, Anis F. Kassim, Legal Systems and Developments in Palestine, 1 Palestinian Y.B. Int'l L. 19, 23 (1984).Google Scholar

45 Gadby & Doukhan, supra note 36, at 299.Google Scholar

46 Proclamation: Land Transactions, November 18, 1918, reprinted in 1 Legislation of Palestine 1918-1925 (Norman Bentwich ed., 1926), at 617-618.Google Scholar

47 This proclamation is published in Arabic in a publication called “Land Laws Applied in Arab Countries Detached from the Ottoman Sultanate.” Kassim, supra note 44, at 22 n.9.Google Scholar

48 Transfer of Land Ordinance, 1920-1921, reprinted in 1 Legislation of Palestine 1918-1925 (Norman Bentwich ed., 1926), at 62-65.Google Scholar

49 Bisharat, supra note 15, at 471 n.6; see also Kassim, supra note 44, at 23.Google Scholar

50 Kassim, supra note 44, at 21 n.4.Google Scholar

51 Bentwich, supra note 31, at 33-34; see also Bunton, supra note 44, at 28-30 (describing how British frustrations at the complexity of Ottoman law - seen as “bewildering and antiquated, a barrier to modernization and progress” - in what is modern-day Iraq led the British to abandon efforts to retain the Ottoman status quo, and to implement instead the Indian colonial model).Google Scholar

52 Bunton, supra note 44, at 29. It seems likely that some in Britain may have argued that the Ottoman Empire's failure to sign the Hague Convention excused Britain from its own obligations under the treaty insofar as they applied to Britain's control over former Ottoman territory; the Convention was interpreted by some to be binding only between signatories.Google Scholar

53 Bentwich, supra note 31, at 54.Google Scholar

54 Id at 29-31.Google Scholar

55 Palestine Order-in-Council as Amended by the Palestine (Amendment) Order-in-Council, 1923, art. 46, reprinted in 1 Legislation of Palestine 1918-1925 (Norman Bentwich ed., 1926), at 13. The Order-in-Council was effectuated by proclamation of the High Commissioner of Palestine on September 1, 1922. 1 Legislation of Palestine 1918-1925 (Norman Bentwich ed., 1926), at 404-405.Google Scholar

56 Mogannam, E. Theodore, Developments in the Legal System of Jordan, 6 Middle East J. 194, 194–195 (1952). Indeed, in his explication of the British Mandate's legal system, Norman Bentwich, the Attorney General of Mandatory Palestine, wrote “the basic law with regard to contractual agreements and to land has been left as it was in the Ottoman codes (aside from frequent minor modifications)…” (emphasis added). Bentwich, supra note 31, at 39-40.Google Scholar

57 Some scholars argue that British claims of adherence to Ottoman law should be read with skepticism because they probably reflect the British efforts to legitimize colonial rule rather than an accurate portrayal of the law. For instance, Martin Bunton explains that Ottoman law was largely inaccessible; only incomplete, unofficial translations were available, and lawyers and courts appointed by British authorities were largely unfamiliar with the Ottoman system: “For Ottoman law in Palestine to become ‘Ottoman law in force’ during the British mandate, it had to be discovered, translated, drafted, pleaded, interpreted, and taught. Put simply, the effect of these processes was to present British legal administrators with choices when trying to define the Ottoman legal status quo. A great deal of discretion was left to the British legal administrators to align the rules relating to property rights in mandate Palestine with the administrative necessities of the colonial state….” Bunton, supra note 44, at 44, 56.Google Scholar

58 See generally Bentwich, supra note 31; Bunton, supra note 44; Gadby & Doukhan, supra note 36.Google Scholar

59 Judges who had presided over the land courts in Palestine under the Ottoman Empire had fled, taking with them much of the courts’ staff as well as many documents. This would contribute to the British experiencing great difficulty in maintaining Ottoman law. Bunton, supra note 44, at 36.Google Scholar

60 The British initiative to continue land reform was met with criticism from some Arab leaders, who pointed out that titling and registering of land, while empowering individuals with new economic opportunity, also meant that land suddenly became alienable. Because individuals had been previously unable to dispense of land - given that title had rested with the state itself- this new possibility meant that land could be easily sold to Jews. Patai, supra note 30, at 442-443. Some Arab leaders therefore opposed the British-sponsored reform, fearing that economic necessity or opportunism would result in more land being transferred to Jews, a political circumstance many vociferously opposed during this tense period. Discussion of the possibility of a Jewish state in Palestine was already common by this time; much of the language of the Balfour Declaration of 1917 had been incorporated into the language of the British Mandate, promulgated by the League of Nations. Cattan, supra note 12, at 61. For an interesting analysis of the British debate over the Balfour Declaration, see Quigley, John B., Britain's Secret Re-Assessment of the Balfour Declaration: The Perfidy of Albion, 13 J. of the History of Int. L. (2011).Google Scholar

61 The Mejelle was the Civil Code enacted by the Ottoman Empire in the early 19th century. It included procedures and laws implicated in actions relating to land. See generally Frederic M. Goadby & Moses J. Doukhan, The Land Law of Palestine (1935); Mogannam, supra note 56.Google Scholar

62 Bentwich, supra note 31, at 40.CrossRefGoogle Scholar

63 An Ordinance to establish Courts for the settlement of the Title to Land, and to define their powers, reprinted in 1 Legislation of Palestine, 1918-1925 (Norman Bentwich ed., 1926), at 150-152.Google Scholar

64 Bunton, supra note 44, at 37.Google Scholar

65 Mogannam, supra note 56, at 201. For instance, significant changes were made to the settlement of title procedures that were required before land could be officially registered. After much trial and error, the British introduced comprehensive new procedures, including new rules of evidence, requiring a determination of which party was the plaintiff and which was the defendant (and accompanying default rules for which party lost on dismissal of a case), and an extensive use of precedent, which turned local land law “into something akin to case law.” Bunton, supra note 44, at 43-44.Google Scholar

66 Mogannam, supra note 56 at 201.Google Scholar

67 Bunton, supra note 44, at 39 (citing Palestine Administrative Report, March 1920, CO 733/2, fo. 20).Google Scholar

68 See supra note 48.Google Scholar

69 Michael R. Fischbach, The Implications of Jordanian Land Policy for the West Bank, 48 Middle East J., 492, 493 (1994).Google Scholar

70 Id at 494.Google Scholar

71 Bisharat, supra note 15, at 540-541.Google Scholar

72 Bunton, supra note 44, at 37.Google Scholar

73 United Kingdom Delegation to the United Nations, Question of Palestine: Letter dated Apr. 2, 1947 from Alexander Cadogan of the United Kingdom Delegation to the United Nations, U.N. Doc. A/286 (Apr. 3, 1947).Google Scholar

74 G.A. Res. 181 (II), U.N. GAOR, 1st Sess., U.N. Doc. A/RES/181(II) (Nov. 29, 1947).Google Scholar

75 See U.N. GAOR, 1st Special Sess., Main Committees, U.N. Doc. A/C.1/PV.48 (May 7, 1947). See also Avi Plascov, The Palestinian Refugees in Jordan 2 (1981).Google Scholar

76 Lustick, supra note 7, at 569. The United Nations General Assembly's Ad Hoc Committee on the Palestinian Question produced a map in August of 1950, showing its findings of land ownership statistics in rural areas as of 1945. The map shows the percentage of land ownership per district attributed to Arabs, Jews and “public or other” land. The districts composing what today is known as the West Bank show small percentages of land designated as “public or other” - 16% in the Jenin district, 13% in the Nablus district, less than 1% in the Ramallah district, 4% in the Hebron district. Arab land ownership ranged from 84 to 99% in those districts. Palestine Land Ownership by Sub-District Prepared on the Instructions of Sub-Committee 2 of the Ad Hoc Committee on the Palestinian Question, Map No. 94(b), U.N. Presentation 574(b) (August 1950), http://domino.un.org/maps/m0094.jpg.Google Scholar

77 G.A. Res. 394(V), U.N. Doc. A/RES/394(V) (Dec. 14, 1950).Google Scholar

78 Fischbach, Michael R., Palestinian Land Documents, Middle East Report, 14 (1994).Google Scholar

79 Indeed, this stage of West Bank history is responsible for its current name - the West Bank refers to the western shore of the Jordan River. The eastern shore, then called the East Bank, had been under the British Mandate for Transjordan and composes modern-day Jordan. The West and East Bank designations derive from the Jordanian claim that the former Palestinian territory was part of a unified Jordan, for which East and West Bank titles were used for convenience but not to designate separate legal entities. See George E. Bisharat, Courting Justice? Legitimation in Lawyering Under Israeli Occupation, 20 Law & Soc. Inquiry 349, 352 (1995).Google Scholar

80 See note 82 infra and accompanying text.Google Scholar

81 Jordan claimed that it had annexed the West Bank at the request of the Palestinian people. Some critics, however, doubt that Jordan actually spoke for Palestinians. Benvenisti & Zamir, supra note 7, at 299 n.32 and accompanying text. See also Plascov, supra note 75, at 2 (arguing that the post-war struggles for sovereignty and influence had more to do with rivalries between Arab leaders than with genuine consultations with the Palestinian people). On the other hand, approximately 70% of the electorate in the West Bank participated in Jordanian elections. Ibrahim F.I. Shihata, I. Hadi Abushakra & Hans-Jurgen Gruss, Legal Aspects of the World Bank's Assistance to the West Bank and the Gaza Strip, 7 Palestine Y.B. Int'l L. 19, 22 (1994). Such large voter turnout could suggest a general sentiment that Jordanian rule was legitimate.Google Scholar

82 Jamil Dakwar, People Without Borders for Borders Without People: Land, Demography and Peacemaking Under Security Council Resolution 242, 37 J. of Palestine Studies 62, 70 (2007). It should be noted, however, that the Armistice with Israel was not the only legal event signaling the beginning of the Jordanian regime. The Jordanian Military Administration took control of most parts of the West Bank at end of the British Mandate in 1948, albeit while the region was still mired in war. Jordan recognized its own authority over the West Bank via Proclamation No. 1 of May 19, 1948. The Jordanian Military Authority began issuing orders affecting law and regulations only five days later. Kassim, supra note 44, at 27.Google Scholar

83 Elections were held in April, 1950, including both the East and West Banks of the Jordan River. Shihata, Abushakra & Gruss, supra note 81, at 22.Google Scholar

84 Only Great Britain and Pakistan recognized Jordan's attempt at annexation. Benvenisti & Zamir, supra note 7, at 299.Google Scholar

85 Interestingly, in other areas of law, there had been wide differences between the British Mandatory regime in Transjordan and the British Mandate for Palestine. Thus, in other areas of law, the transition to Jordanian rule was more complicated. See Mogannam, supra note 56.Google Scholar

86 Fischbach, supra note 69, at 493.Google Scholar

87 The Jordanian Parliament adopted a resolution on April 24, 1950 in which it declared both banks of the Jordan River to be united under the name of the Hashemite Kingdom of Jordan, but Law No. 28, passed on September 16, 1950 stipulated that the laws then in force - which were divergent on either bank - would remain in effect until “new unified and universal laws for both Banks are issued, with the approval of the Parliament and endorsement by His Majesty the King.” Kassim, supra note 44, at 27-28.Google Scholar

88 Fischbach, supra note 69, at 495.Google Scholar

89 Id. at 495.Google Scholar

90 Id. at 496-497.Google Scholar

91 Settlement records included a list of the rights of the property-owner, the surface area of each plot and the value of the plot at the time of record. Abouali, supra note 3, at 73.Google Scholar

92 Abouali, supra note 3, at 73. Whether or not water was privately owned depended on a series of complicated criteria, including the season, the source of the water, and the type of private tenure. See Ottoman Land Code 7th Ramadan 1274, reprinted in R.C. Tute, The Ottoman Land Laws with A Commentary on the Ottoman Land Code of 7th Ramadan 1274 (1927). The year 1274 is the Ottoman equivalent to the year 1858.Google Scholar

93 Mogannam, supra note 56, at 200.Google Scholar

94 In this context, “Israelis” refers to those Jews who had been residents of Palestine under the Ottoman Empire or the British Mandate, and who had purchased property in the territory located in the part of Palestine that - after partition - became known as the West Bank.Google Scholar

95 Benvenisti & Zamir, supra note 7, at 302.Google Scholar

96 Abouali, supra note 3, at 74Google Scholar

97 Provisional Law on the Regulation of Natural Resources, Law No. 37 of 1966, arts. 3, 14(a), 30, 1981 Official Gazette (Jordan) 1113, June 16, 1966. Cited in Abouali, supra note 3, at 74.Google Scholar

98 The specifics of water ownership and use were quite complicated. A regulation promulgated by the National Resources Authority upheld private rights to water pumped from underneath one's own land, but enabled a government official to impose quotas for such pumping and to mandate licensing procedures to secure ownership over wells. Regulations over water varied by how the water was to be used; a different government body managed irrigation systems than the body responsible for water designated for drinking or municipal use. Abouali asserts that despite these significant changes to the legal landscape affecting land, the “basic scheme” was in conformity with the principles of both Ottoman and British Mandate law. Abouali, supra note 3, at 74.Google Scholar

99 It would seem, however, that bringing about legal unity with the East Bank (in accordance with Jordanian claims of annexation of the West Bank) was not Jordan's only driving policy. During Jordanian control, West Bank tax revenues constituted about 40% of the kingdom's total land taxes despite being only 29% of its total cultivated land. Fischbach, supra note 69, at 503.Google Scholar

100 The category of tenure known as musha'a is a good example of vast difference between the Ottoman Land Code and common law property systems. Under Ottoman law, musha'a land was held communally by all the residents of the village in which the land was located. Rights to cultivate were assigned to individuals or families on a preordained timetable on the basis of their ability to cultivate. The standard for determining superiority in cultivating ability was the number and power of the cattle used to plough during cultivation. Cultivation rights were passed down from father to son. While cultivation rights lay with individuals or families, and land was “held” by the whole village, the actual title of the land - indeed, title to the entire village - rested with the Ottoman state itself. Land was typically apportioned annually or bi-annually with strict adherence to principles of equality in quantity and quality of land, including access to water. Consequently, musha'a plots tended to be very narrow and oddly shaped for cultivation purposes, and families would be assigned several different, non-consecutive plots throughout the village. Moreover, because land assignments changed each year, critics claimed there was little incentive to make permanent improvements to the land. Thus, many Westerners perceived a system that was highly inefficient. Patai, supra note 30, at 438. See also Shehadeh, supra note 32, at 15-17.Google Scholar

101 The Jordanian Lands Department completed settlement in 150 of the 338 West Bank towns and villages between 1952 and 1967. Most of the settlement was in the sub-provinces of Jenin, Jericho, Nablus, Tulkaram and Ramallah. Fischbach, supra note 69, at 496-497.Google Scholar

102 Shehadeh, supra note 32, at 26.Google Scholar

103 Mogannam, supra note 56, at 201.Google Scholar

104 Fischbach, supra note 69, at 498. The fact that land registration was such a lengthy process was problematic for the Jordanian economy, which badly needed tax revenue and income from fees relating to land transactions.Google Scholar

105 Lustick, supra note 7, at 569.Google Scholar

106 Bisharat, supra note 15, at 524.Google Scholar

107 Israeli control over East Jerusalem, which had been a part of the West Bank under Jordanian rule, took a different form. Israel unilaterally applied Israeli “law, jurisdiction and administration” to the eastern part of Jerusalem, over which it had gained control following the 1967 war. Law and Administration Order (No. 1), 5727-1967 (June 28, 1967) (Isr.). The Order also extended to 64 square kilometers around East Jerusalem. Neve Gordon, Of Dowries and Brides: A Structural Analysis of Israel's Occupation, 29 New Political Science 453, 457 (2007). Israel views this as an annexation of Jerusalem, and now maintains that Jerusalem is the undivided capital of Israel. To codify this position, Israeli adopted a law in 1980 that declared “unified Jerusalem” to be the capital of Israel. Basic Law: Jerusalem the Capital of Israel, 5740-1980, 34 LSI 209 (1980) (Isr.). For further discussion, see Benvenisti & Zamir, supra note 7, at 299.Google Scholar

108 UN Security Council Resolution 242, passed on November 22, 1967, often provides the nexus for the debate over the legality of the Israeli military administration of the West Bank. Following the war, the Security Council - after more than five drafts and days of hotly contested debate - unanimously passed this resolution, which envisioned a path toward peace negotiations between the warring parties. Among its key provisions were an affirmation that land could not be acquired by conquest, a plan for the withdrawal of Israeli troops and a declaration of the end of belligerency. S.C. Res. 242, U.N. SCOR, U.N. Doc. S/RES/242 (Nov. 22, 1967). For a range of analyses regarding the legality under international law of the Israeli administration of the West Bank, see, e.g. Ben-Naftali, Gross & Michaeli, supra note 7; Cattan, supra note 12; Dakwar, supra note 82; John McHugo, Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians, 51 Int'l & Comp. L.Q. 851 (2002); Ruth Lapidoth, Security Council Resolution 242 at Twenty-Five, 26 Is. L.R. 295 (1992).Google Scholar

109 The Israeli government also rejected the term “Occupied Territories” in reference to the other areas that came under Israeli control after the war, such as the Gaza Strip, East Jerusalem and the Golan Heights.Google Scholar

110 Benvenisti & Zamir, supra note 7 at 299; see also Bisharat, supra note 15, at 526-527 (citing Everett Mendelsohn, A Compassionate Peace: A Future for Israel, Palestine and the Middle East 45 (1989) (noting Israeli change in terminology was based on illegality of Jordanian occupation)).Google Scholar

111 Bisharat, supra note 15, at 547. Kedar argues that developments in Israeli law - applied in Israel and in certain areas of the West Bank, depending on jurisdiction (see infra notes 214; 208 and accompanying text) - gradually altered the realities of land ownership, ‘ethnic geography’ and sovereignty by “transforming land possession rules in ways that undermined the possibilities of Arab landholders to maintain their possession.” Alexandre (Sandy) Kedar, The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967, 33 N.Y.U.J. Int'l L. & Pol. 923, 924 (2001).Google Scholar

112 Military Commander of the West Bank, The Proclamation concerning Law and Administration (No. 2) (June 7, 1967), [K.M.Z.M.] (Bulletin of Proclamations, Orders & Nominations).Google Scholar

113 Ha'etzni v. State of Israel (Minister of Defence), 34(iii) P.D. 595 (1980).Google Scholar

114 Bisharat, supra note 15, at 537 n.422. The Israeli position is that the West Bank does not constitute occupied territory, and that international law therefore does not require Israeli adherence to the Hague and Fourth Geneva Conventions. This position is based on Israel's concern that formally acknowledging the state of occupation would amount to an implied recognition or legitimization of Jordanian sovereignty over the area during Jordanian rule. Benvenisti & Zamir, supra note 7, at 305 n.56. Israel maintains that Jordan's rule over the West Bank was not that of a sovereign power, but rather that of an occupier.Google Scholar

115 That is, into Jordan proper.Google Scholar

116 Bisharat, supra note 15, at 494.Google Scholar

117 Israeli military law allowed dispositions of land to be legal if registered with notaries public. Fischbach, supra note 69, at 508.Google Scholar

118 Id. at 508.Google Scholar

119 Shehadeh, supra note 32, at 28.Google Scholar

120 A dunum is the unit of measure for real property used in many parts of the Middle East. One dunum is equivalent to approximately 0.227 of an acre. Bisharat, supra note 15, at 477 n.25 (citing Abraham Granovsky, Land Policy in Palestine (1940)).Google Scholar

121 Raja Shehadeh, Land and Occupation: A Legal Review, 4 Palestine-Isr. J. of Pol., Econ. & Culture, (1997), available at http://www.pij.org/details.-php?id=473.Google Scholar

122 Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 58: Abandoned Property of Private Individuals Order. See also Forman, supra note 7, at 690.Google Scholar

123 Raja Shehadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories 80 (1997).Google Scholar

124 Shehadeh, supra note 121.Google Scholar

125 See generally Bisharat, supra note 15; Shehadeh, supra note 32.Google Scholar

126 See supra text accompanying notes 14-25.Google Scholar

127 Bisharat, supra note 15, at 525 n.335. According to early analyses of Ottoman law, miri land was theoretically owned by the state, but the possessor retained all rights over it as long as he/she was cultivating it. Gadby & Doukhan, supra note 36, at 17-36.Google Scholar

128 The PLO was invited to participate in the General Assembly's plenary meeting on the Question of Palestine on October 14, 1974. On October 29 of the same year, the Arab League declared that the PLO was the sole legitimate representative of the Palestinian people, and that the Palestinian people had a right to establish an “independent national authority under the command of the Palestine Liberation Organization.” League of Arab States Seventh Arab Summit Conference, Rabat Resolutions (Oct. 29, 1974) reprinted in Middle East Documents and Readings on Society, Politics and Foreign Relations, Pre-1948 to the Present 342 (Itamar Rabinovich & Jehuda Reinharz, eds., 2d ed. 2008). Soon after, the United Nations followed suit, recognizing the PLO as the legitimate representative of the Palestinian people. G.A. Res. 3236 (XXIX), U.N. Doc. A/RES/3236 (XXIX) (Nov. 22, 1974). The very same day, the PLO was invited to participate as an observer to the United Nations General Assembly. G.A. Res. 3237 (XXIX), U.N. Doc. A/RES/3237 (XXIX) (Nov. 22, 1974).Google Scholar

129 Robert Pear, Hussein Surrenders Claims on West Bank to the P.L.O.; U.S. Peace Plan in Jeopardy; Shultz Concerned, New York Times, Aug. 1, 1988, at Al; see also Benvenisti & Zamir, supra note 7, at 306. Until this time, Jordan had considered Palestinian residents of the West Bank to be Jordanian nationals. Andrew Grossman, Nationality and the Unrecognised State, 50 The Int'l & Comp. L.Q. 876, 859 (2001).Google Scholar

130 Sara Roy notes that this declaration signaled the relinquishment of Palestinian claims to 78% of Palestine's territory. Sara Roy, Palestinian Society and Economy: The Continued Denial of Possibility, 30 J. of Palestine Studies, 5 (2001). The 78% refers to the proportion of the territory formerly under the British Mandate, which was held by Israel. In other words, Roy refers to Palestinians’ claims to 100% of the territory that had been under British control during the British Mandate for Palestine.Google Scholar

131 Benvenisti & Zamir, supra note 7, at 306.Google Scholar

132 For example, when the Permanent Observer to the United Nations for the Palestine Liberation Organization informed the Swiss Federal Council that “the Government of the State of Palestine … decided… to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto,” the Swiss Federal Council explained that it was unable to recognize the commitment, as there was still “uncertainty within the international community as to the existence or nonexistence of a State of Palestine.” See Int'l Comm. of the Red Cross, Status of Four Geneva Conventions and Additional Protocols I and II, 30 Int'l Legal Mat. 397 (1991). For an analysis of why the Palestinian Declaration of Independence of 1988 failed to establish an independent state under international law, see James Crawford, The Creation of the State of Palestine: Much Too Soon?, 1 Eur. J. Int'l L. 307 (1990).Google Scholar

133 Bisharat, supra note 79, at 377; see also Hague Convention, supra note 14, and Fourth Geneva Convention, supra note 15.Google Scholar

134 Bisharat, supra note 79, at 352.Google Scholar

135 For instance, dispute resolution mechanisms for resolving competing claims of land ownership are handled by the Israeli Military Administration's military tribunal system rather than in civilian courts. Lustick, supra note 7, at 571. The Editor's Note in the first edition of the Palestine Yearbook of International Law described some examples of the wide latitude accorded to military orders, which would be impermissible under Israeli civilian law: “The Area Commander have [sic] had a free hand in issuing these Military Orders. They are not subject to the normal legislative process in passing laws or orders. These Orders are not subject to the review of higher legislative or executive authorities, and when they were challenged before Israeli judicial bodies, they have been consistently upheld. Several justices of the Israeli High Court believe that these orders constitute “primary legislation” not subject to review by that court at all. These Orders have received little attention by legal scholars, lawyers and law students.” Editor's Note, Legislation: Military Orders, 1 Palestine Y.B. Int'l L. 175 (1984).Google Scholar

136 Attorneys bringing suit in military courts complain that the lack of clear procedural and evidentiary guidelines mean that they are likely to fail in their claims. Bisharat, supra note 79, at 371. Military Orders, which have “changed, amended or repealed” many laws previously in force, are not published by the Israeli occupying authorities either in an Official Gazette, or in daily papers or in any other easily available form. They are generally distributed to lawyers on a limited scale. New layers have difficulty in obtaining old copies of Orders. Amendments to earlier Orders are rather confusing because of the lack of availability of original Orders and the scarcity of earlier amendments. Editor's Note, Legislation: Military Orders, 1 Palestine Y.B. Int'l L. 175 (1984).Google Scholar

137 There were 1400 military orders issued between 1967 and 1993, when the Declaration of Principles, see infra note 193, was signed. Shehadeh, supra note 123, at 134 n.3.Google Scholar

138 Shehadeh, supra note 32, at 5.Google Scholar

139 Israel's decision to adhere to local law has been described by some as representative of Israel's concern for its public image. For example, Bisharat argues that Israel endeavors to portray its actions as legal because it is protective of its public image due to its dependency on foreign aid and its desire to be counted among democratic, law-abiding nations. See, e.g Bisharat, supra note 15, at 553; Bisharat, supra note 79, at 388.Google Scholar

140 Israeli Defense Force, Military Commander of Judea and Samaria, Military Orders 419, 569, 811, 846.Google Scholar

141 Shehadeh, supra note 32, at 111.Google Scholar

142 Benvenisti & Zamir, supra note 7, at 299. Shehadeh argues that when a final settlement is reached, Israel will have to return all land in the West Bank that has been designated as “state land,” because, according to the Hague Convention, an occupier may not make permanent use of occupied land, no matter its designation. Shehadeh, supra note 32, at 78.Google Scholar

143 Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 92: Orders Concerning Powers for the Purpose of the Water Provisions reprinted in 5 Palestine Y.B. Int'l L. 346, 348 (1989)Google Scholar

144 Abouali, supra note 3, at 77. The “Officer in Charge” and other officials of the Israeli occupation coordinated policies regarding the administration of West Bank land law with the national government of Israel. Id. at 80. This would suggest failure to comply with at least the liberal interpretation of the international law of occupation, which reads the requirement of the occupier to respect local law to allow only those alterations that were made to benefit the local population. See supra text accompanying note 22.Google Scholar

145 Recall that the designation of land as “state land” is of itself a highly contested matter. When confronted with accusations that Israel was making substantive changes to land law in violation of international law, Israeli government officials would explain that only Israeli policy regarding state land claims had changed, not the underlying substantive law. Forman argues that “complete transformation of the application and interpretation of a law is, in fact, a significant change in local law.” Forman, supra note 7, at 674 (2009). For a discussion of the modifications to legal definitions of state law under Jordanian rule, see supra text accompanying note 102; for modifications under Israeli rule, see supra text accompanying note 125.Google Scholar

146 See supra note 100 for a discussion of the Ottoman Land Code's designation of land held in common, or musha'a land.Google Scholar

147 Abouali, supra note 3, at 78.Google Scholar

148 Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 291: Order Concerning Settlement of Disputes over Land and Water (Dec. 19, 1968). The Israeli Area Commander's legal advisor in the West Bank explained that the registration was suspended in order to avoid “prejudicing the rights of the many absentees and the ownership rights of nationals of Jordan who have lands in the area but reside outside…” Shehadeh, supra note 123, at 81 n.11 and accompanying text.Google Scholar

149 Fischbach, supra note 69, at 506.Google Scholar

150 Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 569.Google Scholar

151 Shehadeh, supra note 123, at 81.Google Scholar

152 Id. at 81.Google Scholar

153 Additional complexities regarding the applicability of the different legal authorities in the West Bank are explored below. See supra Part III, sections B and C.Google Scholar

154 This was presumably due to Israel's desire to comply with international law requiring recognition of legal status quo at time of occupation.Google Scholar

155 In this context, “settlement law” refers to laws applicable where disputes over ownership have not yet been resolved. These laws encompass procedures for land ownership dispute resolution, also known as settlement of title procedures.Google Scholar

156 See Raja Shehadeh, Occupier's Law: Israel and the West Bank (1985).Google Scholar

157 Fischbach, supra note 69, at 507.Google Scholar

158 According to one analyst, Israeli settlements were motivated by a combination of (1) perceived security requirements, (2) the need for cheap housing, and (3) religiously-motivated desire to reclaim land (for instance, Professor Eugene Rostow of Yale has been quoted as explaining that settlements are “voluntary return of individuals to towns and villages from which they or their ancestors have been ousted… Israel has valid claims to title in the territory based… on historic and religious connection to the land.”). Kelly, supra note 13 at 44.Google Scholar

159 For a brief discussion of the legal issues inherent to Israeli settlements in the West Bank, see supra Part III, section B.Google Scholar

160 Israeli Defense Force, Military Commander of Judea and Samaria, Military Orders 892 and 947. For a broader discussion, see Shehadeh, supra note 32, at 111-115.Google Scholar

161 Kelly, supra note 13 at 41.CrossRefGoogle Scholar

162 Israeli jurisdiction extends to Jews living outside of the territorial state of Israel because “[t]he Israeli state is envisaged as both a territorial state and the state of the Jews wherever they are.” Kelly, supra note 13 at 44. Kelly argues that these rules implementing different jurisdictions for Jews and Palestinians is “an inherently political attempt to separate deeply integrated populations.” Id. at 41.Google Scholar

163 For arguments that the settlements are legal under international law, see, e.g. David M. Phillips, The Illegal Settlements Myth, Commentary Magazine, Dec. 2009, at 32; Yehuda Blum, The Territorial Clauses of Security Council Resolution 242, in Israel's Right to Secure Boundaries 35 (Jerusalem Centre for Public Affairs, 2007). For arguments that the settlements are illegal under international law, see, e.g. Comm'n on Human Rights Res. 2003/6, Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine (Apr. 15, 2003), reprinted in 13 Palestine Y.B. Int'l L. 463 (2005); Imseis, supra note 15; B'Tselem, Discrimination and Land Grab in the Service of the State - Settlements in the West Bank and East Jerusalem, in Human Rights Review 1 January 2009 to 30 April 2010 (2010).Google Scholar

164 For an example of the official Israeli position, see Ministry of Foreign Affairs of Israel, Israeli Settlements and International Law (2001), available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israeli+Settlements+and+International+Law.htm. The Palestinian National Authority has also released an official statement arguing that the settlements are illegal under international law. PLO Negotiations Affairs Department, Colonies (Settlements), available at http://www.nad-plo.org/inner.php?view=nego_permanent_colonies_hsettelmentp.Google Scholar

165 The category of abandoned land involves its own complicated definitional parameters, which have been the subject of heated debate. Abandoned land typically refers to land that was held as private property by Palestinians who have since become refugees (most since the 1967 war). Israeli Military Order 58 vested all abandoned lands in a Supervisor of Abandoned Property, who was charged with administering and using the land until the true owners returned to the region. Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 58. Forman, supra note 7, at 688. For a critical analysis of the legality of the Israeli definition of abandoned property as applied in Israel, see Boling, supra note 7.Google Scholar

166 The transfer of land previously owned by the Jordanian state to the Israeli Military Administration was accomplished via Military Order 59, see supra text accompanying note 123.Google Scholar

167 From 1948 to 1967, the Jordanian Custodian of Enemy Property had been charged with administering land that had been previously owned by Jews. Like the Israeli Supervisor of Abandoned Property, see supra note 165, the Custodian administered private property of those Jews who had abandoned their property, presumably due to the conflict.Google Scholar

168 Forman, supra note 7, at 688-689.Google Scholar

169 Id. at 691.Google Scholar

170 For a thorough explanation of the Israeli understanding of the procedures required to create a legal settlement, see Talia Sasson, Summary of the Opinion Concerning Unauthorized Outposts (2005), available at http://www.mfa.gov.il/-MFA/Government/Law/Legal+Issues+and+Rulings/Summary+of+Opinion+Concerning+Unauthorized+Outposts+-+Talya+Sason+Adv.htm. This report, compiled by former prosecutor Talia Sasson, was commissioned by Prime Minister Arial Sharon and made public on October 18, 2005. The World Bank, The Economic Effects of Restricted Access to Land in the West Bank 38 (2008).Google Scholar

171 Article 55 of the Hague Convention, supra note 14, gives the occupying power the authority to administer and use “public buildings, real estate, forests, and agricultural estates belonging to the hostile State,” but only when the occupying power administers or uses such lands “in accordance with the rules of usufruct.” Since local law had been interpreted as defining all unregistered lands that are not cultivated as “state lands,” Israel justified its settlements on such state lands as legal under Article 55. Benvenisti & Zamir, supra note 7, at 315 n.106.Google Scholar

172 The Ottoman Land Code's five categories of land designation did not include a category of “state land” as understood in the Western sense. Although land ‘ownership’ ultimately rested with the state, the state was not responsible for administering the land, nor did the state maintain possession. See supra note 32 and accompanying text. The British Mandate system reinterpreted the Ottoman Code in an Order-in-Council, designating ‘all lands controlled by the government’ as “public lands.” But miri lands were apparently exempted from this designation of “public lands;” the British seem to have maintained the Ottoman method of assigning possessory rights to private individuals for such land. Likewise, the Jordanians treated these lands more like private property, in the sense that rights of possession and other rights typically associated with ownership in a Western system were granted to individuals even if ultimate ownership technically rested with the state. Critics argue that the Israeli Military Administration, in changing its policy to pursue greater settlement activity, strategically altered its interpretation of the legal designation of these lands, emphasizing the state ownership rather than the private possessory rights. Shehadeh, supra note 32; see also Bisharat, supra note 15, at 538-540; Aziz Shehadeh, The Concept of State Land in the Occupied Territories, reprinted in 2 Palestine Y.B. Int'l L. 163 (1985).Google Scholar

173 Recall that only about 37.5% of the land in the West Bank had been officially registered under the Jordanian land registration regime by 1967. See supra note 105 and accompanying text.Google Scholar

174 Of course, the Israeli Military Administration was obligated to respect private ownership of land that had been fully registered through one of the previous land registration regimes.Google Scholar

175 Critics call the Israeli system unilateral because, they argue, Israel's obligations under international law require more consultation with the local population. See Shehadeh, supra note 32, at 122. For instance, Israeli Military Order 418, which gave planning authority to the Higher Planning Council, abolished local participation in the planning process, which had been required under Jordanian law. Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 418. See Rami S. Abdulhadi, Land Use Planning in the Occupied Palestinian Territories, 19 Journal of Palestine Studies 46, 49 (1990).Google Scholar

176 Lustick, supra note 7, at 568.Google Scholar

177 Gordon, supra note 107.Google Scholar

178 HCJ 390/79 Izzat Muhammad Mustafa Dwaikat and Others v. the Government of Israel and Others 34 PD 1 [1980]. Among other things, this case affirmed that the Hague Convention is applicable in the West Bank.Google Scholar

179 Lustick, supra note 7, at 571 (arguing that such wholesale declarations of state land represented “calculating intent to use the incompleteness of the Jordanian land survey to expand the amount of land available for Israeli settlement.”). See also Bisharat, supra note 15, at 535-536.Google Scholar

180 Ian Lustick argues that it is practically impossible to secure documentation necessary to sufficiently demonstrate land ownership within 21 days. Lustick, supra note 7, at 571.Google Scholar

181 See generally Shehadeh, supra note 32; Lustick, supra note 7.Google Scholar

182 Shehadeh, supra note 121.Google Scholar

183 Benvenisti & Zamir, supra note 7, at 299.Google Scholar

184 See Forman, supra note 7.Google Scholar

185 Military Order 364, which amended Military Order 59, decisively shifted the burden of proof of ownership to the appellant. Israeli Defense Force, Military Commander of Judea and Samaria, Military Order 364. It also required expensive documentation in order to prove ownership. The burden of proof in most categories of land can only be lifted if an appellant can prove actual continuous use of the land for the past 10 consecutive years. Shehadeh, supra note 32, at 76. Since many Palestinians had sought work in the relatively more prosperous migrant labor force, much land had not been continuously cultivated for ten years; moreover, the costs of compiling the required documentation to prove ownership were prohibitively expensive for many West Bank residents. Bisharat, supra note 15, at 541.Google Scholar

186 Neve Gordon, supra note 107, at 457 (citing Meron Benvenisti and Shlomo Khayat, The West Bank and Gaza Atlas (1987).Google Scholar

187 B'Tselem, Land Grab: Israel's Settlement Policy in the West Bank (2002).Google Scholar

188 “Outposts” refer to settlements that have not been officially recognized by the Government of Israel, and therefore do not receive the same legal status or financial support as the settlements, which have gone through a process of being recognized by the Israeli Knesset. See Sasson, supra note 170.Google Scholar

189 For an interesting analysis of the complicated international legal status of the Palestinian interim government, see Omar M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine During the Interim Period, 26 Denv. J. Int'l L. & Pol'y 27(1997).Google Scholar

190 The letter from the Chairman of the Palestine Liberation Organization, Yasser Arafat, affirmed the PLO's recognition of the State of Israel, its acceptance of UN Security Council Resolutions 242 and 338, it renunciation of violence and its commitment to a peaceful resolution. The letter from Israeli Prime Minister Yitzhak Rabin responded by recognizing the Palestine Liberation Organization as the representative of the Palestinian people and committing to negotiations. Letter from Arafat to Rabin (Sept. 9, 1993), reprinted Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Agreements 315 (2000); Letter from Rabin to Arafat (Sept. 9, 1993), reprinted in Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Agreements 316 (2000).Google Scholar

191 These agreements included the Declaration of Principles, see infra note 193, the Israel-Palestine Liberation Organization Agreement on the Gaza Strip and the Jericho Area, see infra note 218 the Agreement on Preparatory Powers and Responsibilities, see infra note 199, and the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, also known as Oslo II, see infra note 201. Justus R. Weiner, An Analysis of the Oslo II Agreement in Light of the Expectations of Shimon Peres and Mahmoud Abbas, 17 Mich. J. Int'l L. 667 (1996).Google Scholar

192 “The Council” was the term used in the Declaration of Principles, see infra note 193, to refer to the Palestinian interim government. Id. at 668.Google Scholar

193 Declaration of Principles on Interim Self-Government Arrangements, Isr.-Palestine Liberation Organization, Sept. 13, 1993, 32 Int'l Legal Mat. 1525 [Hereinafter “Declaration of Principles”]. This agreement is also known as the Oslo Accords. There are many critics of this beginning to the peace process. Shehadeh points out that “the interim arrangement are based on, and take as their starting point, the situation as it existed in the Occupied Territories when the negotiations began both in terms of the state of the law and of public administration. That is to say that the Declaration of Principles comes to consolidate rather than replace the extensive legal and administrative changes which the Israeli occupation has put into place during the course of its twenty-seven-year occupation of the Palestinian Territories.” Raja Shehadeh, The Declaration of Principles & The Legal System in the West Bank 1 (1994).Google Scholar

194 Agreement on the Gaza Strip and the Jericho Area, Isr.-Palestine Liberation Organization, May 4, 1994, 33 Int'l Legal Mat. 622 (1994) [hereinafter Gaza-Jericho Agreement].CrossRefGoogle Scholar

195 It is important to note that the areas covered by this agreement were very small, basically consisting in the West Bank of only the municipal area of the city of Jericho. See Gaza-Jericho Agreement, supra note 194; see also Id., Map No. 2, available at: http://www.mfa.gov.il/NR/rdonlyres/964076B3-11A8-4510-94DB-2D69AB60B28C/0/MFAG00310.gif.Google Scholar

196 Gaza-Jericho Agreement, supra note 194, at art. II, ¶ 22.Google Scholar

197 Id. at art. II, ¶ 28.Google Scholar

198 Id. at art. II, ¶ 28.Google Scholar

199 Agreement on Preparatory Powers and Responsibilities, Isr.-Palestine Liberation Organization, Aug. 29, 1994, 34 I.L.M 455 (1995) [hereinafter Preparatory Powers Agreement].Google Scholar

200 Id at Annex V, ¶1.Google Scholar

201 Interim Agreement on the West Bank and the Gaza Strip, Isr.-Palestine Liberation Organization, Sept. 28, 1995, 35 I.L.M. 551 (1997) [hereinafter Oslo II].Google Scholar

202 It is important to remember, however, that even those powers over land law that were transferred from Israel were not comprehensive. See Hiba I. Husseini, Challenges and Reforms in the Palestinian Authority, 26 Fordham Int'l L.J. 500, 512 (2003). This limits the PA's ability to fully control the status of land law even within Area A.Google Scholar

203 The delineation of power by Area is outlined at length in the Oslo II agreement. Maps provide a useful visual of the complexity of this legal regime, see e.g. Shehadeh, supra note 123, at 32. Area C composes the majority of the West Bank, and Area A is limited to small, isolated locations representing larger cities and municipalities.Google Scholar

204 For a discussion of the failures under each of the attempts at peace negotiations following the Oslo II Agreement, see Husseini, supra note 202. For a critique of the theoretical premises underlying the peace process, see Orde F. Kittrie, More Process than Peace: Legitimacy, Compliance, and the Oslo Accords, 101 Mich. L.R. 1661 (1993).CrossRefGoogle Scholar

205 See, e.g. The Wye River Memorandum, Isr.-Palestine Liberation Organization, Oct. 23, 1998, 37 I.L.M. 1251 (1998); Sharm El-Sheikh Memorandum, Isr.-Palestine Liberation Organization, Sept. 4, 1999, 38 I.L.M. 1465 (1999).Google Scholar

206 U.N. Office for the Coordination of Humanitarian Affairs, West Bank: Area C Map February 2011, available at: http://www.ochaopt.org/ (last visited Mar. 6, 2012). It should be noted, however, that other estimates put the size of Area C at 59%, see The World Bank, supra note 1. The 62% figure is the most recent data the author was able to find.Google Scholar

207 Moreover, the actual extent of Israeli and Palestinian National Authority control is apparently quite different as portrayed in the Agreement than as it exists in reality; realities of continued occupation by Israel and fragmented rule by the PA result in a clearly subservient legal authoritativeness and enforcement capacity for the PA. See Eyal Benvenisti, The Status of the Palestinian Authority in The Arab-Israeli Accords: Legal Perspectives (Eugene Cotran and Chibli Mallat, eds., 1996).Google Scholar

208 Israeli citizens, regardless of their physical location, fall within the jurisdiction of Israeli law because Israeli law uses a theory of extended personal jurisdiction rather than territorial jurisdiction. Kelly, supra note 13, at 48 (citing Brief of the Attorney General in the Matter of Subhi Hamed et al. v. Municipality of Giva'at Zeev).Google Scholar

209 Kelly, supra note 13, at 47.CrossRefGoogle Scholar

210 Kelly, supra note 13, at 48.CrossRefGoogle Scholar

211 John Quigley, supra note 27, at 699. See also Kelly, supra note 13 at 47.Google Scholar

212 Shehadeh, supra note 123, at 32.Google Scholar

213 The discussion in sections A and B of this section provide only a brief survey of the land law under the Israeli Military Authority. Important developments in land law have continued in the form of new Military Orders. The law continues to be challenged and shaped by ownership disputes, many of which are supported by nonprofit organizations pursuing impact litigation in an effort to secure property rights for Palestinians in Area C. Antonia Mulvey, Norwegian Refugee Council, Housing, Land & Property Rights in East Jerusalem & the West Bank, Address at Columbia Law School Human Rights Institute (Feb. 7, 2011). Human rights and other international organizations continue to express concern over the incidence of home demolitions, which are defended as legal under local law but are often criticized as illegal under international law. See, e.g. B'Tselem, supra note 187; B'Tselem, supra note 163; U.N. Office for the Coordination of Humanitarian Affairs, “Lack of Permit” Demolitions and Resultant Displacement in Area C (2008); The World Bank, supra note 170. Unfortunately, a full treatment of the land law implicated in these issues is beyond the scope of this paper.Google Scholar

214 As discussed above, see supra notes 153-162 and accompanying text, Israeli citizens living in the West Bank have their disputes heard in Israeli civilian courts. These courts are primarily located in Israel and are governed according to Israeli domestic law. West Bank Palestinians are governed by a mixture of military orders promulgated by the Israeli Military Governor and the local courts, which apply pre-1967 Jordanian law, Kelly, supra note 13, at 47, and - since Oslo II - PA laws and courts in Area A. To add to the cross-cutting jurisdictions that had already been fracturing the legal scheme in the West Bank prior to the establishment of the Palestinian Authority, the new PA institutions supplant certain areas of law - but again, only in certain territorial locations, only for certain people, and only on certain issues. For instance, the PA has jurisdiction over all criminal offenses in West Bank Areas A and B, except those committed by Israelis, committed in settlements, or committed in an Israeli military area. The PA also has limited jurisdiction over civil matters, including limited compulsory jurisdiction over Israelis in cases involving commercial activity. This limited jurisdiction is set forth in the Gaza-Jericho Agreement, supra note 194, at art. 3, paras. 1-3. See also Quigley, supra note 27, at 707.Google Scholar

215 The establishment of the PA is premised on the notion that it is a governmental expression of the right to self-determination. Thus, the PA need not respect the international obligations inherent to the Hague and Fourth Gevena Conventions, see supra notes 14 and 15, because it is not holding the territory “in trust” until the sovereign power can be restored, see supra text accompanying notes 17-25. Rather, the PA would be seen as the “restoration” of the true sovereign power. Its power to create land law, then, would not be relative to the laws of previous regimes.Google Scholar

216 The Draft Basic Law for the Palestinian National Authority in the Transitional Period, 7 Pal. Y.B. Int'l L. 171, 171-186 (1992-1994).Google Scholar

217 For an in-depth analysis of the creation of the Basic Law, see Nathan J. Brown, Constituting Palestine: The Effort to Write a Basic Law for the Palestinian Authority, 54 Middle East J. 25 (2000).Google Scholar

218 Declaration of Principles, supra note 193; Israel-Palestine Liberation Organization Agreement on the Gaza Strip and the Jericho Area, 33 Int'l Legal Mat. 622 (1994).CrossRefGoogle Scholar

219 Brown, supra note 217, at 28.Google Scholar

220 Yasser Arafat Decree of May 20, 1994, reprinted in 7 Palestine Y.B. Int'l L. 151 (1992-94).Google Scholar

221 See Brown, supra note 217, at 28 n.8.Google Scholar

222 Id. at 28-30.Google Scholar

223 Meeting with Palestinian Land Authority Official (Jul. 2010). The meeting took place in conjunction with the author's work with an NGO in Ramallah, West Bank as a Columbia Law School Human Rights Internship Program Fellow.Google Scholar

224 Id.Google Scholar

225 Meeting with Palestinian Housing Authority Office (Jul. 2010). The meeting took place in conjunction with the author's work with an NGO in Ramallah, West Bank as a Columbia Law School Human Rights Internship Program Fellow.Google Scholar

226 Id. The Official explained the vicious circle of economic stagnation in housing that results from land being unregistered. Most families in the West Bank need to take out loans in order to purchase their homes. However, banks in the West Bank are extremely conservative in their lending practices; most require multiple forms of documentation proving secure title, uncontested ownership and payment of land taxes in order to provide a loan. Since many people are unable to provide such documentation, they will not be accepted for a loan - not only damaging the prospects for improved quality of life for many families, but also undermining potential growth in the banking sector.Google Scholar

227 Declaration of Principles, supra note 193.Google Scholar

228 Michael R. Fischbach, Settling Historical Land Claims in the Wake of Arab-Israeli Peace, 27 J. of Palestine Studies, 38, 41 (1997).Google Scholar

229 Id. at 42.Google Scholar

230 Id. at 41Google Scholar

231 The World Bank, supra note 2.Google Scholar

232 Land transactions of this type were also made during Jordanian rule. Inst. for Palestine Studies, Palestinian Emigration and Israeli Land Expropriation in the Occupied Territories, 3 J. Palestine Studies 106, 113 (1973).CrossRefGoogle Scholar

233 Wakala Dawriyya, reprinted in R.C. Tute, The Ottoman Land Laws with A Commentary on the Ottoman Land Code of 7th Ramadan 1274 168 (1927).Google Scholar

234 The Ottoman year 1305 is equivalent to the Gregorian year 1888. See the table showing Hejira, Fiscal, Jewish and Christian years in R.C. Tute, The Ottoman Land Laws with A Commentary on the Ottoman Land Code of 7th Ramadan 1274 127(1927).Google Scholar

235 Other steps included the creation of a planning group within the Council of Ministers, which was charged with coordinating the government's agenda on land issues. Additionally, the Chief Justice issued an Instruction in June 2009 that made the Irrevocable Power of Attorney valid for only one transfer. This order was significant in that it further encourages formal registration of land - in order to legally alienate land, owners will now be required to produce documentation from the formal land registration process. The World Bank, supra note 2. The Irrevocable Power of Attorney is the dominant method for conducting land transactions - as of 2005, only 10% of sales and inheritances were registered with the Land Authority. The World Bank, supra note 170, at 31.Google Scholar

236 The World Bank, Project Appraisal Document on a Proposed Learning and Innovation Lending (Grant) in the Amount of US $3.00 Million to West Bank and Gaza for a Land Administration Project 2 (Jan. 26, 2005).Google Scholar

237 World Bank, supra note 2, at 23-24; see also The World Bank, supra note 236, at 2.Google Scholar

238 See, e.g. G.A. Res. 194 (III), U.N. GAOR, 3rd Sess., U.N. Doc. A/RES/192(III) (Dec. 11, 1948).Google Scholar

239 Bisharat, supra note 15, at 540-541.Google Scholar

240 Benvenisti & Zamir, supra note 7, at 336-337.Google Scholar