September 1, 2014 - Jerusalem Center for Public Affairs
Israel's Decision to Declare 988 Acres of West Bank Territory as State Land

There is considerable confusion about the recent action of Israel's civil
administration declaring 988 acres of West Bank territory as state land. In
general, West Bank territory may be divided into three legal categories:
state land, private land, and land whose status is to be determined. The
territory in question had the status of territory whose status is to be
determined. Before the declaration of the land as state land, an
investigation had to be undertaken by Israel's civil administration that
took several years in order to ascertain its exact status.

Those who oppose the recent declaration have 45 days to appeal the Israeli
decision. When Palestinians have brought proof of ownership of contested
territory to Israeli courts, including Israel's Supreme Court, the courts
have at times issued decisions calling on the Israeli government to restore
the property in question to its Palestinian claimant, even if that requires
dismantling the private homes of Israeli citizens. The determination of
territory as state land as opposed to private land is a necessary action
which helps avert errors in the future when these areas are developed.

But looking at the decision of Israel's civil administration in a wider
diplomatic context, it should be remembered that the Oslo II Interim
Agreement, signed by Yitzhak Rabin and Yasser Arafat at the White House in
1995 (and witnessed by the EU), established a division of the West Bank into
three areas: Area A, where the Palestinians had full control, Area B where
there was mixed Israeli and Palestinian security control but full
Palestinian civil control, and Area C, where Israel had full military and
civilian control. Israeli responsibilities in Area C included the power of
zoning and planning. The territory which Israel declared as state land is
within Area C.

It should be stressed that the architects of the Oslo Agreements understood,
as a result, that Palestinians would develop areas under their jurisdiction
while Israel would develop areas it controlled as well. That is why there
was no settlement freeze in the original Oslo Agreements. Over the years the
Palestinians witnessed that what will determine Israel's borders are
negotiations and not construction; after all, Israel dismantled all its
settlements in Sinai when it made peace with Egypt in 1979 and it withdrew
all its settlements from the Gaza Strip as part of its Gaza Disengagement in
2005.

Moreover, looking to the future, the territory in question, at present, is
part of a settlement bloc, south of Jerusalem, known as Gush Etzion, which
was settled by Jews prior to 1948, but lost by Israel when it came under
attack by Arab forces. During past negotiating rounds it became clear to
Israelis and Palestinians alike that at the end of the day when a
territorial compromise is reached, Israel will retain the settlement blocs
(UN Security Council Resolution 242, drafted after the Six-Day War, never
envisioned a full Israeli withdrawal to the pre-1967 lines in any case).

The determination that Israel will retain the settlement blocs is reflected
in U.S. diplomatic communications like the 2004 letter by President Bush to
former Prime Minister Ariel Sharon and the statements made by President
Obama in 2011 about demographic changes on the ground and changes in the
1967 lines. The least controversial of these settlement blocs in past
negotiations is, in fact, Gush Etzion.

Finally, there is the question of legality which has been a point of
disagreement for many years. The question of legality comes from Article 49
of the 1949 Fourth Geneva Convention which prohibits moving the inhabitants
in any occupied territory out of the occupied territory. The final section
of the article also prohibits the transfer of the occupying power's
population into an occupied territory. The view of Israeli jurists, and
important U.S. jurists as well (like Eugene Rostow, the former dean of Yale
Law School), is that this section relates to the forcible movement of an
occupier's population into an occupied territory. This language was
incorporated after World War II as a reaction to Nazi German policies of
forcibly transferring German Jews to Occupied Poland for extermination. It
is no wonder that the Israeli Supreme Court never ruled that settlements are
illegal, despite the announcements of a number of foreign ministries around
the world.