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The Promised Land grab.

Palestinians routinely threaten to end peace talks over them; President Bush waxed livid about them; and Prime Minister Shamir defied the world by building a record number of them. Few issues in the Arab-Israeli conflict cause as much gnashing of teeth as Jewish settlements on the West Bank. And rightly so, because the housing now dotting the hills of what Israelis call Judea and Samaria promises to be among the thorniest brambles in any peaceful Middle East solution. But in the United States, the debate over who will build, how much, and where has so far overlooked a vital point: The actual economic and political straggle over the land begins not with the hammering, but when the Israeli government puts land under its control by declaring it "state land."

By conservative estimates, well over 2 million square kilometers (or dunams) of land in the West Bank were declared Israel's state land in the first 20 years of occupation. (There are 5.8 million dunams in the West Bank.) Today, as much as 55 to 60 percent of the West Bank is state land. Because land that has been taken by Israel cannot be used, lived on, or farmed by Palestinians, these declarations make the land Israel's; settlements merely drive the point home.

Prime Minister Rabin may have scored political points by announcing the end of "political" settlements (only those necessary for security are to be built), but by all accounts the accumulation of state land has continued unabated under the Labor Government. Declarations initiated under Shamir are proceeding in the Israeli military court and new ones are being issued. In fact, six weeks after the Rabin government was elected, 1,000 dunams of land were confiscated from Aboud, an Arab village, for the expansion of an Israeli settlement called Erraim. Civil Administration spokeswoman Alyce Shazar summed it up: "There hasn't been any order to stop declarations of state land since Rabin took office."

The Israeli government actually goes through a painstaking process to ensure that land it takes is not already privately owned. Using maps and aerial photography, the Israeli Supervisor of Government Property in the West Bank combs the area looking for acres that appear uncultivated and without buildings. Then a notice is placed in Arabic newspapers informing villagers what land has been taken by state declaration. Alternatively, an Israeli government official is dispatched to point out the land in question to the mukhtars (elders) of the villages who, in turn, inform the villagers. Anyone who thinks he has a claim to the property has 45 days to file an appeal with the Israeli military court.

It sounds fair. But, according to Ministry of Justice lawyer Plia Albec, Israel begins with the premise that any land that it takes is state land; the burden of proof is on the Palestinian to prove the land is theirs. This burden is usually too onerous because registry systems used by countries previously in control of the West Bank were about as arcane as Deuteronomy. Tabous, land registration papers left over from the preWorld War I Turkish Mandate, are often difficult to decipher. The boundaries of the property described in them are often designated by landmarks that no longer exist, and occasionally a tabou describes boundaries as extending from one person's property to another's, when both owners have been dead for decades. "Even if you have a tabou, it's a big problem to prove that this tabou goes with this land," said Taofiq Jabarin, an attorney in Jernsalem who represents Palestinians challenging state land declarations.

Turkey got out of the West Bank after World War I, and Jordan, which controlled the land until 1967, was wretchedly slow about registering property claims. In the years that the Hashemites ruled the West Bank, one-third of land owners were able to secure documentation. The process stopped under Israeli occupation in 1968, when Israeli military order 291 effectively suspended land registration indefinitely.

The system that Israel now uses to notify Palestinians of land declarations also creates problems. The Israeli Ministry of Government Properties rarely attaches maps to confiscation notices showing the boundaries of what has been declared state land. The most plausible explanation is that the Israeli government does not want to shell out funds for surveying fees. But when submitting their appeal, Palestmians are obliged to attach a map demarcating ownership boundaries. That usually means they must hire an attorney and a surveyor--a costly and time consuming task that contributes to missed deadlines and dissuades Palestinians from appealing in the first place. The upshot is that Palestinians are often unsure about what land is in question, and they either submit an appeal for the wrong plot or fail to submit an appeal at all.

The situation is even more difficult for the many Palestinians without registration papers. Often they're living on land that has been in their family for generations, but which they never legally owned. Under the Turks, they paid taxes to a landlord and were deemed de facto owners of the land once they had cultivated it for ten consecutive years. Israel says it respects this system and is careful not to take cultivated property.

But travails begin when, for instance, a Pales- tinian family has considered 100 dunams surrounding their house to belong to them, but cultivated only 50. Or a Palestinian might think 30 dunams belong to his family, but may derive income from a source other than farming, and therefore cultivated none of it. On the legal level, the differences could be boiled down to this: The Palestinians believe the land is theirs because their grandfathers considered it so, and the Israelis want to see papers that prove it.

It is difficult to learn the precise number of individual declarations issued since Israel took over the West Bank after the 1967 War. A government spokeswoman said no statistics were available on how many plots of land have been taken, nor how many of the declarations were contested by Palestinians--or whether these appeals were successful. Plia Albeck estimates that Palestinians have appealed hundreds of declarations and lost roughly 95 percent of the time.

The obstacles to successful appeals make many Palestinians feel that the whole state land declaration system is set up to hem them in and limit the amount of land controlled by Arabs. This theory is fueled by the many state land declarations issued in the process of determining borders of Palestinian villages in the occupied territories. Similar to zoning in the United States, outlining a village means delineating the village boundaries, as well as zones for residences, commerce, industry, and public plots. The Israeli government uses aerial photography to determine where these boundaries should be, based on where residents are already most concentrated. Once the lines of a village have been drawn, the land outside it becomes state land and off-limits to Palestinians. Outline planning is underway in over 200 villages and towns and has already been completed in 200 others, according to Alyce Shazar. Though Palestinians outnumber Jews on the West Bank by close to ten to one, Arab residents are now effectively barred from living in or cultivating at least half of the area.

Piece process

The taking state of land is not an Israeli invention; in fact, it happens in Arab states throughout the Middle East. But when the Syrian government, for instance, makes piecemeal acquisitions in Syrian villages, there is little disputing that the land is Syria's. On the other hand, the West Bank, by Israel's own definition, is not Israel's.

So is the Jewish State trampling the norms of international law? Like every question in the Middle East, it depends on whom you ask. Israel says the occupier can use state land as long as it does not "change the face" of the land which, it claims, it never does, because only land which is not privately owned is taken. Palestinians argue that private land is often declared state land and that taking public acreage does change the face of the land by not allowing Palestinians to use it.

What's not disputed is that as occupier, Israel does not own what it takes. To circumvent the illegality of flat out selling land to settlers, the Israeli government offers them 49-year leases. This way the government has not sold something it does not own, and it can argue that settlements are temporary until negotiations determine permanent ownership.

Regardless of whether you think this deal is a raw one for the Palestinians, it certainly complicates life for the Israelis at the peace talks. Because the land is still technically controlled by Israel, not the settlers who build on it, if the Labor government handed over parts (or all) of the West Bank to the Palestinians, Arabs would instantly become controllers of land now inhabited by Israeli settlers. Imposing Palestinian landlords over Israel's most zealously anti-Arab citizens might at first seem like a cruel joke. But such a prospect is certain to impede Israel's latitude in making far-reaching concessions on the West Bank.

Although not the focus of the media or prominent Palestinian delegates during press conferences--Palestinian delegate Ziad Abu Zayyad said his colleagues prefer to focus on settlements because they are visible and permanent-land ownership and management will be on the negotiating table when peace talks resume. One Israeli plan would give Palestinians and Israelis joint control over state land. But Palestinians fear that joint control will not mean equal power. They say that any solution arrived at in negotiations with Israel must give them enough clout to stop the declarations and allow them to control existing state land. Whether they'll get that much clout remains to be seen. But until the rules of the game change, Rabin may have found a way to do what Shamir could not: increase Israel's share of the West Bank without incurring international condemnation.
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Title Annotation:Israel's West Bank
Author:Horan, Deborah
Publication:Washington Monthly
Date:May 1, 1993
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