Supreme Court President Dorit Beinisch’s decision on September 12 broke sharply
with traditional interpretations of law, yet the media largely ignored
In a case brought by Peace Now against the Binyamin neighborhoods
(“outposts”) of Hayovel – where Maj.
Eliraz Peretz’s widow and children
live – in Eli, and Harisha, in the Talmonim bloc, Beinisch directed the state –
i.e., the 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]
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. Peretz was killed in a battle with Hamas terrorists in March
This ruling radically shifts the burden of proof with regard to
property disputes in Judea and Samaria. Up until now, Arabs who claimed that
their land was taken illegally have been required to prove the veracity of that
claim. Now, Jewish communities that claim the land is not privately owned and is
thus available for settlement will be required to back up their claims. Since
Beinisch’s decision cannot be appealed, the ruling will stand as law unless the
Knesset acts to legislate otherwise.
ALTHOUGH THE Supreme Court president
may have sought to clarify and simplify questions of land ownership, her
decision overrides important distinctions and categories of land established by
prior administrations and accepted by the courts. Her ruling redefines which
lands are to be considered “disputed” and seems to accept at face value
unverified Arab claims to land that Arabs have simply expropriated
Moreover, since Israel has not declared sovereignty or annexed
land beyond the 1949 armistice lines (except for eastern Jerusalem and the Golan
Heights) Beinisch’s ruling could apply to many other areas in Judea and Samaria
Not only are “hilltop” communities like Migron, Amona, Givat
Assaf and Gilad Farm now at risk, but large parts of established towns like
Ofra, Beit El, Eli, Elon Moreh and others could now be targets for
According to Israeli law, jurisdiction about land ownership
issues in Judea and Samaria rests with the civil administration in conjunction
with the State Attorney’s Office (part of the Justice Ministry). Both have been
accused of pursuing anti-settlement policies.
Decisions about land
ownership should be based on impartiality, objectivity and professionalism.
Unfortunately, however, they are often influenced by political agendas. In the
absence of documentation and detailed land surveys, for example, the civil
administration relies on aerial photographs for evidence of working the land,
which are used to support claims of ownership.
NGOs and Arabs often cite
maps produced during the British Mandate to “prove” land ownership in order to
and thereby contest the legality of Jewish settlements. But according to Dr. Dov
Gavish, author of The Survey of Palestine Under the British Mandate, 1920-1948
(2005), these maps were fiscal maps, often arbitrary and inaccurate, and should
not be considered proof 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.
that 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 all revert to the state by law.
Beinisch’s ruling also seeks to
overturn the meticulous work of Plia Albeck, who directed the Civil Department
of the State Attorney’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 Israel
acquired in 1967.
Basing her decisions on 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
In 2004, then-prime minister Ariel Sharon attempted to
reverse Albeck’s findings in the leadup to the withdrawal from the Gaza Strip
and northern Samaria. Sharon hired Talia Sasson, a member of Peace Now and
formerly an attorney in the State Attorney’s Office, to investigate; 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. Beinisch seems intent on implementing Sasson’s
CLAIMS THAT Jews have stolen and built on “private Palestinian
land” should be decided upon 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
Since “Palestine” was never a separate legal or
sovereign entity, designating land as “Palestinian” or belonging to “the
Palestinian people” lacks accuracy and authenticity.
Beinisch’s decision to make the question of land ownership 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.The author
is a PhD historian, writer and journalist living in Jerusalem.