The Disputed Legality of Israeli Settlements Within the Occupied Territories
While establishing the military judicial system, then Israeli attorney general Meir Shamgar decided that Palestinian residents in the Occupied Territories under Israeli military jurisdiction should have the right to appeal to the civilian Israeli Supreme Court. This became known as “judicial oversight,” and it has been both praised and criticized. Although it created complications for military administrators on the ground, it also legitimized their actions with the approval of a respected, non-military authority.
The 1979 Supreme Court ruling on the Israeli settlement of Elon Moreh highlights the court’s controversial role in the occupation. In the first decade of the occupation, some Israeli civilian groups began to build settlements within the Occupied Territories for various political and religious reasons. Usually, the military commander declared that the land on which these settlements were to be built was needed for the area to be secure. The land was then seized by the army. In the case of Elon Moreh, and in many previous cases, the Israeli Supreme Court first accepted the military’s position and authorized the seizure of the land.
Residents of the Palestinian village of Rujeib objected to the military’s appropriation of their lands to build the new Elon Moreh settlement. The Palestinian villagers appealed to the Israeli Supreme Court, arguing that the Israelis’ claim that they needed the land for security reasons was merely justification for an illegal land grab. The Palestinians also cited the Hague Regulations that prohibit an occupying power from undertaking permanent changes in the occupied area unless they are undertaken for the benefit of the local population or due to military necessity.
This time, the Supreme Court was convinced that the security imperative was not the main reason for the appropriation and deemed the state’s practice of seizing Palestinian land to establish settlements illegal and ordered removal of the settlement. The ruling tied the hands of Israeli government officials. To accommodate the desire to settle the land with the Supreme Court’s ruling, these officials, including then minister of agriculture Ariel Sharon, began to search for legal solutions.
Legal advisors invoked a concept from Ottoman land law that dealt with mawat, or “dead land.” Even though the Ottoman Empire had declined after World War I, this law had remained in effect under the British Mandate for Palestine and under Jordanian sovereignty over the West Bank. As such, international law recognized Ottoman land-law as presiding in the Occupied Territories. Under the Ottoman law, the ownership of “dead land” that was not cultivated for a period of at least three years reverted back to the empire. The Israeli legal advisors interpreted this to mean that “the empire,” in this case, was the occupying power—the Israeli military.
This interpretation of the law provided politicians with a tool to claim land in the occupied territories, despite the ruling of the Supreme Court. In the years following the Elon Moreh case, Israeli authorities claimed over one million dunams (a measure of land from Ottoman law that equals 100 square meters) as state land. Approximately 38 percent of this land is today within the jurisdiction of the regional councils of the settlements. The settlements themselves cover between1 and 2 percent of the land area.
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