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However, land registered to Palestinians is their land and may not be declared government property. Yet Israel twisted the law to declare 16% of the West Bank state land besides another 14% pre-1967 under Jordanian rule giving Israel 30% ownership and growing.
B'Tselem petitioned the Civil Administration for clarification, clearly marked on a map to show:
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all defined state land;
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and confiscated for public purposes;
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land seized "pursuant to military requisition orders;"
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land classified as "absentee property," belonging to Palestinians who fled in 1967 and didn't return;
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closed military zone areas.
The information gotten showed that "the portion of the built-up area of Ofra, or the area adjacent to it, that lies on requisitioned or confiscated land is very small, except for the land that the Civil Administration contends was confiscated by the Jordanians for the army camp."
By May 2008, Ofra's built-up area covered over 670 dunams (about 170 acres). About 27% of it was seized under Expropriation Order No 77/E (November 1977). Civil Administration information claimed it was "expropriated by the Jordanian government for a public purpose" and not initiated by Israel. Official documents, however, show that "the expropriation process was not completed." Also, Order 77/E wasn't recorded in the Land Registry, but the Civil Administration insisted that it's state land nonetheless even though registration was incomplete and thus invalid.
B'Tselem calls the land "not state land. (Therefore), Order 77/E, issued by the Israeli military commander in 1977, is a new expropriation order, issued more than two years after the settlers of Ofra took over the abandoned houses of the Jordanian army camp and some three months after the government of Israel decided to recognize Ofra as a permanent community."
The entire scheme was illegal. Israel's official position puts privately-owned Palestinian land off-limits for settlement construction because it's not for a "public purpose" under (still in force) Jordanian law. According to Plia Albeck, former State Attorney Office's Civil Division head:
Israel "may expropriate land for public purposes in the region, but regarding establishment of a new community, whose residents are Israeli citizens and at the time of establishment of the community do not live in the region, it is very doubtful that it is an expropriation for a public purpose in the region."
Former attorney general Yitzhak Zamir agreed in saying that "it is impossible to act under Jordanian law to expropriate private land for public purpose" to build settlements. Order 77/E was thus illegal and so is Ofra.
Israel also expropriated dozens of additional acres for an expanded area "not recognized as legitimate under international" or local (Jordanian) law. Further, most of Ofra's built-up land is not included under Order 77/E. In responding to recently filed petitions in Israel's High Court, "the state admitted that (Ofra's built-up area) contains additional lots that are recorded on the name of Palestinians...." It amounts to at least 58% of Ofra's built-up area.
The Ofra Cooperative Association, however, claims that it's held the land for many years without registered owners disputing it through legal action, so the land was lawfully theirs. The State Attorney's Office disagreed in stating "no proof had been made that the land was purchased by your client (and saying it is constitutes a) mere claim." The Civil Administration also provided no proof of purchase.
By law, all claimed West Bank land must be recorded in the Land Register under the name of the purchasers. Failure to do so is a crime. Ofra settlers said they failed to comply to "protect the lives of the Palestinian sellers" even though there were none. Also, according to Israeli attorney Plia Albeck, 90% of supposed West Bank purchased land involved forged "fictitious" documents.
As a result, Palestinian rights were grossly breached because Ofra construction "prevent(ed) them from possessing and exercising their ownership rights in the land and from gaining a living from it and from its agricultural produce."
Under Israel's Basic Law: Human Dignity and Liberty, 5752 - 1992, section three states: "there shall be no violation of the property of a person." Illegal settlement construction on Palestinian-owned land constitutes a grave breach. International law affirms it. Besides Fourth Geneva and numerous UN resolutions, Article 46 of the 1907 Hague Regulations states:
"Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice must be respected. Private property cannot be confiscated."
Ofra construction violates this law, "extending beyond the prohibition on establishment of the settlements." It denies Palestinians:
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the right to live on their own land, develop it, raise crops on it, and gain other benefits;
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thousands of additional dunams that Ofra seized for future development;
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more still for infrastructure, including for-Jews only roads; and it
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"has ramifications for other Palestinian communities" by preventing free movement between them and letting all settlements expropriate more West Bank and East Jerusalem land.
Conclusions
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