[updated, 10 August 2016: Adalah sent  sent a letter on 18 August 2016 to Israeli Attorney General Avichai Mandelblit, Defense Minister Avigdor Lieberman, and Chief Military Advocate General (MAG) Sharon Afek asking them to oppose a proposed plan to relocate the illegal Amona settlement outpost from its current location onto land plots privately owned by Palestinian refugees. See Adalah press release here.]

By Suhad Bishara

Israeli authorities continue to deliberate over the fate of some 40 Israeli Jewish families living in the Amona settlement outpost in the West Bank, which is located on private Palestinian property. One “solution” under consideration is to relocate the settlers to adjacent plots of land that the state considers to be “absentees’ property.” Under the proposed arrangement, the state would “rent” out the land to the settlers on behalf of its unknown Palestinian owners using renewable three-year contracts. In other words, under Israeli law the state can remedy the theft of Palestinian land by compensating the thieves with other stolen Palestinian lands instead.

All Israeli settlements in the 1967 territories are considered illegal under international law, but Amona is in violation of Israeli domestic law as well. Established nearly 20 years ago, Amona is the largest of the “outposts” or “unauthorized” settlements and it has withstood multiple attempts by the Palestinian landowners to reclaim their land through the courts. The Israeli NGO Yesh Din, which represents the families, provides some background on the case here. In practice, such outposts have invariably become accepted as official communities, complete with infrastructure and services — a sharp contrast with the state’s treatment of Bedouin Palestinian villages in the Naqab (Negev) desert that it adamantly refuses to recognize. The Amona case stands out because it is one of the very few times where the judiciary, after decades of fruitless litigation, has decided to take action by ordering the demolition of the settlement by the end of 2016. In response, the governing coalition has proposed legislation to retroactively legalize Amona. Attorney General Avihai Mandelblit has reportedly expressed concerns that the bill may not survive judicial review, although that does not mean he will not ultimately defend it. Adalah sent him a letter last week detailing the proposed legislation’s many flaws. The proposal to move the settlers to neighboring absentees’ property is one of the other plans under consideration.

People often think of the Nakba as an act of ethnic cleansing of the Palestinians that happened only in the early years of the state and only inside the Green Line, while the 1967 territories are treated as part of a separate category of “occupation.” Inside the Green Line, the most important legal instrument for seizing Palestinian land was the 1950 Absentees’ Property Law, which declared Palestinian refugees from the war to be “absentees” and gave control of their lands to the state. Within the 1967 occupied territories, the general principle for dealing with land and colonization was laid out by the Israeli Supreme Court in the 1979 Dweikat v. Gov’t of Israel decision (also known as the “Elon Moreh case”): private Palestinian land should not be confiscated. This left the state to treat all other lands — which constitute most of the West Bank — as “state land” open to settlement. In practice, however, Israel has found various ways to seize private property anyway, often by making it nearly impossible for Palestinians to register their property claims. The state has also “accidentally” expropriated private Palestinian lands, as it admitted in an unusual court hearing this week concerning Ofra settlement.

By thinking of the Nakba as an ongoing process, we can highlight the similarities in Israeli policies and practices across the Green Line. During the 1967 war, some 200,000 Palestinian residents of the West Bank and Gaza Strip were stranded outside the country and blocked from returning. Almost immediately upon seizing the territories, the Israeli army issued Military Order 58, which authorizes the seizure of any property held by West Bank residents who were outside the area on 7 June 1967 or who subsequently left. Military Order 58 basically replicates the Absentees’ Property Law for the 1967 territories, but it is broader: the Absentees’ Property Law only applies to people who left their homes to areas under the control of “enemy” states during a specific period between 1947 and 1948, whereas Military Order 58 potentially covers any Palestinian who leaves the West Bank, even today.

The Amona relocation plan would depend on Military Order 58, whose widespread use to label Palestinian land as “absentees’ property” could essentially sweep away the Elon Moreh doctrine’s pretenses to protecting Palestinian private property. Peace Now estimates that some 100 square kilometers of West Bank land could fall under this order. A proposed expansion of the Gilo settlement in occupied East Jerusalem — one that even attracted criticism from the U.S. government — involves a tract of land that is 30% absentees’ property. In an interesting indication of how much the Green Line informs dominant assumptions, the English version of Ha’aretz’s reporting on this plan incorrectly glosses this as absentee property from 1948 refugees rather than from the lesser-known 1967 refugees.

The possibility that Israel will move settlers from Palestinian land stolen by individuals to Palestinian land stolen by the state underscores the crucial, if perverse, relationship between the Nakba and the law. The legal tussle between the settlers and the government ultimately boils down to an argument over who has the “right” to seize Palestinian property and how to divide the spoils of the Nakba.