Peace Now, the Israeli advocacy group, has issued a new report, Breaking the Law – One Violation Leads to Another, claiming that "a large proportion of the settlements built on the West Bank are built on privately owned Palestinian land," including 86.4% of Ma'ale Adumim's land and 35.1% of Ariel's. Overall, the report claims, "Palestinians privately own nearly 40% of the land on which settlements have been built." This is in direct contradiction to often repeated claims by numerous Israeli governments that settlements are built only on state (that is, public) land and not on private land.

The Peace Now report harshly concludes in its Executive Summary that: addition to ignoring international laws and agreements, Israel has violated even its own norms and laws in the West Bank, through the confiscation of private Palestinian property and the building of settlements upon them...

Peace Now condemns the violation of Israeli law carried out over the past forty years by the State of Israel. We condemn the efforts of politicians and bureaucrats to launder the land grab, which deprived thousands of Palestinians of the basic human right of possession, on the individual and collective levels. We demand that the present Israeli Government rectify the situation, which means returning the private land to its owners. (emphasis in original)

Are these rather strong, if not hyperbolic, conclusions justified by the evidence that Peace Now cites in its report? The answer would seem to be no. The database (probably a simple spreadsheet) at the heart of Peace Now's assertions came to them through a leak, and they are not even certain how current the information is. As the report admits, the data is "updated to the best of our knowledge through 2004."

But if they don't know the currency of the data, what else don't they know about the data? How, for example, do they know that the data hasn't been tampered with? After all, with widely available software anyone can insert any data they want into a spreadsheet. Even if the spreadsheet was at one time accurate, how can Peace Now be certain that the version they relied upon was accurate?

In addition, others who looked at the same data cited by Peace Now seemed to reach very different conclusions. Quoting from the Peace Now report, the data the organization received:

...served as a reference for attorney Talia Sasson when she prepared her government-mandated report on the outposts – a report which has been widely publicized and discussed.

Now, Ms. Sasson was asked by the Israeli government to look into so-called unauthorized outposts, essentially small settlements apparently built without the necessary permissions from the proper authorities. But contrary to Peace Now's charges, Ms. Sasson found that use of private Palestinian land for outposts was due not to some nefarious land grab but to errors in marking state land on maps. According to her report, Summary of the Opinion Concerning Unauthorized Outposts:

I found that some of the lands allotted by the Civil Administration to the Settlement Division were survey lands [ie, of unknown ownership], and some were private Palestinian property. Apparently this was a result of errors in marking State lands on maps. This is one of the reasons that some of the unauthorized outposts were established not on State lands.

So was it errors, as Ms. Sasson believes on the basis of her data, or was it a knowing attempt to "launder a land grab," as Peace Now charges on the basis of supposedly exactly the same data?

There are further serious problems with Peace Now's allegations as well. Absolutely key to the questions they raise, for example, is the legal definition of what is public, or state, land, and what is private land. Unfortunately, the section of Peace Now's report dealing with land law in the West Bank is extremely misleading, and in quite a few places simply incorrect. For example, according to the report:

Since 1967, Israel has made use of Ottoman legislation dating back to the middle of the 19th century in order to declare land to be "State land." According to that law, all lands are considered "State Land" unless proven otherwise. To formally register land as private property, one must cultivate it for at least ten years. If the land is not registered, one would be considered the owner as long as he cultivates it and pays taxes on it. If the land is not cultivated for three successive years, it may become the property of the Ottoman State, i.e. "State Land".

First of all, Israel was and is obligated under international law to maintain the legal system in the territories, and to make only such changes as are absolutely necessary. Thus it was not, as Peace Now implies, an Israeli subterfuge to apply the pre-existing Ottoman – as well as British and Jordanian – laws in the West Bank. In addition, there is under the Ottoman land code a category of land known as mulk which is allodial, or private land, for which no cultivation is necessary. (A Survey of Palestine, Vol. 1, p225; British Mandate) Such land would revert to state ownership only if the owner dies intestate. In other words, contrary to Peace Now, it is private property as would be understood in the United States.

But, and this is the crucial point, what Peace Now refers to as "private property" in the above paragraph, state land which has been cultivated for 10 years, is not at all private. For the rights in such land, whether or not it is registered, are in no way equivalent to what would be commonly called private property. Rather, it is more a form of feudal tenancy, as explained by the previously mentioned Survey:

The land tenures of Ottoman law consist of various modes of user the features of which are set out in the Ottoman Land Code... Most of the land [in Palestine] is held under two distinct tenures commonly referred to as mulk and miri. Mulk means "property." The tenure called mulk is a private ownership tenure. Land so owned may be called "allodial" land. It is held in absolute ownership. The holder has almost unfettered freedom in regard to its use and disposition. Miri is a conditional usufruct tenure of land held by grant from the state. The holder or possessor is a usufructury whose tenure resembles a leasehold, subject to certain limitations on the use and disposition of the land and to the payment of certain fees. (p225-226)

That is, what Peace Now is calling "private Palestine land" is under the Ottoman Code miri land, and it is therefore not privately owned. It is rather land in which a person is granted by the state a limited right of use. And contrary to Peace Now, the land remains the property of the state, and therefore in no way does it revert to the state only if there is a failure to cultivate. Miri land – the land of the Emir, or equivalently, of the sovereign – is state land, period.

In addition, there is under the Ottoman Code, another very important category of land known as mewat, or "dead land," which is deceptively unmentioned by Peace Now. It is, according to the Survey:

... unallocated or waste areas situated beyond the confines of inhabited regions which can only be rendered cultivable by special effort... Nowadays, the development of "waste" land without prior leave from the State is legally a trespass. The conclusion is that mewat should have no significance and should be deemed undeveloped "vacant land" proper which cannot be possessed except by allocation from the State. (p 233)

This category is important, since, as pointed out by a different British Mandate source:

Practically all the unoccupied land of Palestine is mewat and cannot be occupied without the permission of the Government. (Palestine and Transjordan, p 210; Great Britain, Naval Intelligence Division, 1943)

The same source offers a further definition of mewat land:

Mewat is ownerless land, at a minimum distance of a mile and a half from the nearest inhabited town or village. Another system of measurement is, sufficiently distant from such a town of village that the voice of a man shouting there cannot be heard. (p 210)

In light of these facts about land tenure in the West Bank, the flaws in the following key statement in Peace Now's report should be obvious:

The "privately owned land" to which this report refers is:

A. Land that was registered and recognized as private property before 1968, at a time when the process of land registration was still open and available to Palestinians, or

B. Cultivated land which is recognized by Israel as private land according to the Ottoman law.

Land that was "registered ... as private property" before 1968 was not so registered. It was registered as miri land, state land on which a certain party or parties had a limited right to cultivate, and no more. In addition, in many cases land which had once been registered had later falllen into disuse, and therefore even the rights to cultivate had been extinguished. But it seems from the above that Peace Now considers all this land, if it was ever registered before 1968, to still be private Palestinian land.

In addition, Peace Now ignores altogether that much West Bank land is mewat, or waste land, and therefore permanently in the public domain, with not even rights to cultivate.

The bottom line is that even if Peace Now's very questionable data is correct, its analysis is not, and its claims and charges therefore deserve little credibility.