Dr. Moshe DannMoshe Dann is a writer and journalist with a Ph.d in history, who lives in Jerusalem.
On September 12, Chief Justice Dorit Beinish rendered a highly controversial decision, based on an unwritten policy she had been using, which broke with traditional interpretations of law, yet, the media (with the exception of Arutz Sheva, the Hebrew Makor Rishon and Besheva ed.) largely ignored it.
In a case brought by Peace Now against neighborhoods ("outposts") in the Binyamin communities of Eli, called Hayovel, where Eliraz Peretz's widow and children live and Harisha, in the Talmonim bloc, Justice Beinish directed the State, i.e. Civil Administration for Judea and Samaria, to determine what constitutes State land.
According to her ruling, all land not specifically designated as State Land would henceforth be considered "private [Palestinian] land," by default, rather than unowned land.
She also gave the State 60 days to provide a schedule for destroying all (Jewish) building on "private land," with the exception of the Peretz home; Major Peretz was killed in a battle with Hamas terrorists in March, 2010.
This ruling radically shifts the burden of proof from Arabs who claim that their land was taken illegally and places it on Jewish communities who claim the land is not privately owned and available for settlement. Since there is no appeal from her decision, unless the Knesset acts, her decisions constitute the law.
Justice Beinish decision overrides important distinctions and categories of land established by prior administrations and accepted by Israeli courts. Her ruling redefines which lands are to be considered "disputed" and seems to accept at face value Arab land claims that have not been verified and lands which Arabs have simply expropriated illegally.
Moreover, since Israel has not declared sovereignty or annexed land beyond the 1949 Armistice lines (except for eastern Jerusalem and Golan) Beinish's ruling could apply to many other areas in Judea and Samaria as well. Not only "hilltop" communities like Migron, Amona, Givat Asaf, and Havat Gilad are vulnerable; large parts of Ofra, Bet El, Eli, Elon More and others would be targets for destruction.
At issue is what constitutes "State land" and "private Palestinian land." According to Israeli law, questions of land ownership in Judea and Samaria are decided by the Civil Administration in conjunction with the State Prosecutor's Office (in the Ministry of Justice); both have been accused of pursuing anti-settlement policies.
Decisions about land ownership should be based on impartiality, objectivity and professionalism; often influenced by political agendas, they are not. In the absence of documentation and detailed land surveys, for example, the Civil Administration relies on old aerial photographs for evidence of the land once being worked, which are used to support claims of ownership.
NGOs and Arabs often cite maps produced during the British Mandate to claim land and contest Jewish settlements. But these maps, as Dr. Dov Gavish explains in his authoritative Survey of Palestine, 1920-1948 (2005), were fiscal maps, often arbitrary and inaccurate, not proofs of ownership.
Since "State land" means ownerless land that was once controlled by Turkish, British and Jordanian administrations, then Israel, as the sole legitimate sovereign successor seems to have full legal rights to the land. That would include all conditions, restrictions, obligations and responsibilities attached to the land.
Similarly, land which had been gifted or designated by the state to an individual, clan, or village, but was not used, abandoned property, and land in which the owner dies intestate reverts to the State by law.
Beinish's ruling seeks to overturn the meticulous work of respected expert Plia Albeck, who directed the Civil Department of the State Prosecutor's Office for 24 years, until she was fired by Attorney General David Libai in 1993, when Yitzhak Rabin became Prime Minister. During her tenure, Albeck was responsible for determining land ownership and provided the legal basis for establishing Jewish communities in areas acquired by Israel in 1967.
Using Ottoman/Turkish, British and Jordanian law, Albeck, who died in 2005, defined many areas in Judea and Samaria as State land, thus allowing their subsequent designation for settlement. She describes (and defends) her work in Land Use in the West Bank (2002) (in Hebrew), published by Ariel College of Judea and Samaria.
Attempting to reverse Albeck's efforts for his own agenda, then PM Ariel Sharon, in 2004, when he was formulating his plans to withdraw from the Gaza Strip and Northern Shomron, hired Taliya Sasson, a member of Peace Now and formerly an attorney in the State Prosecutor's Office. Her report in 2005 castigated government agencies for their involvement in settlement building, sought to redefine State land, and asserted Palestinian claims that all settlements were illegal. Justice Beinish seems intent on implementing Sasson's report.
Claims that Jews have stolen and built on "private Palestinian land" should be decided by competent objective authorities based on evidence in courts of law – not by politically motivated individuals and advocacy groups.
The larger question, however, is to whom this disputed territory belongs. Since "Palestine" was never a separate legal or sovereign entity, designating land as "Palestinian" or belonging to "the Palestinian people" lacks accuracy and authenticity.
Ironically, Justice Beinish's decision to make the question of landownership in Judea and Samaria subject to Israeli civil law may provide the basis for establishing sovereignty over and extending the State's jurisdiction to areas currently under military control. That would be a step forward for Israeli democracy and fulfilling the historic mission of the Jewish people in the Land of Israel.