A Private Initiative: the affair of Elkana D and the death of Ibrahim Al-Aqra

The legal opinion of the Attorney General Yitzhak Zamir was written following a draft resolution submitted to the government in April of that year. The resolution was intended for the first time to allow Israelis – individuals and companies – to purchase land in the Occupied Territories. Until then, Jordanian law which applied in the area, combined with military orders issued by Israel after the occupation of the West Bank in 1967, prevented Israelis from purchasing land (an exception to this was the Himnuta, a subsidiary of the JNF-KKL). In his legal opinion, the Attorney General analyzes the legal, economic and practical implications of the suggested policy change in the purchase of private land in the Occupied Territories, as well as the legal difficulties that arise from it – both with regard to international law and Jordanian law. Given the reservations he raised, the AG proposed a change in the wording of the draft resolution so it would state that the government is authorizing the Ministerial Committee on Security to set guidelines for issuing land acquisition licenses by Israelis, in accordance with Israeli settlement policy and interests. The AG further noted that legally there is no need for an official governmental decision at all: “If it is preferable for diplomatic or other reasons, this matter can be brought directly to the Ministerial Committee,” he hinted. Contrary to the Attorney General’s position, on September 16, 1979, the government decided to allow private purchase of land in the Occupied Territories, and also authorized a ministerial committee to issue guidelines regarding the issuance of licenses for such acquisitions. This determined that the Ministerial Committee is the body authorized to discuss and approve initiatives for the establishment of Israeli settlements beyond the Green Line, and the legal basis was laid for the privatization of the settlement enterprise.

On the agenda of the Ministerial Committee meeting convened on April 25, 1982, were four issues, including two concerning the issue of private development in the West Bank. Michael Dekel, Deputy Minister of Agriculture for Settlement Affairs, opened the discussion on these sections and introduced the issue. “We, in the State of Israel, are accustomed to the fact that the great settlement operations have always been carried out by institutions – the Zionist Organization, the Jewish Agency and the Government of Israel. It has always been a state execution. […] Today, when we talk about expanding settlement in Judea and Samaria, for various reasons, mainly political, there is not always a budgetary source to do the work. We must try and find alternative ways to settle Judea and Samaria […] Today there is a very large movement, or a very large interest in private development. There are private developers and contractors, who are willing to establish settlements in Samaria, on the basis of buying land from the Arabs. We are checking whether this land is indeed available to the seller and can be transferred to the buyer,” Dekel told the committee members. Committee members raised some questions and concerns regarding the supervision of construction and the examination of land transactions. Deputy Minister Dekel replied that every transaction for the purchase of private land is being examined by the Ministry of Justice, to which Advocate Plia Albeck responded: “That is not true […] Private purchases are currently not examined by the Ministry of Justice.” After a short discussion, the committee approved Deputy Minister Dekel’s proposal in principle, “to integrate in the settlements of Judea and Samaria private individuals and entrepreneurs” (Resolution HT/25). More concretely, the committee also approved the establishment of five new settlements, including Elkana D., planned to include 1,200 housing units (Resolution HT/26).

“Construction frenzy in Judea and Samaria”, “For sale: most of Judea and Samaria lands”, “Ten large contracting companies are operating in Judea and Samaria” – these are just some of the headlines published between October 1982 and May 1983, following the change in the Israeli government’s policy and transition to private development in settlements. The

“An Arab from a village in Samaria died following an incident with the security forces,” a headline in the newspaper Davar reported on Tuesday, May 3, 1983. “An Arab that took part in an attack on a tractor operator in Elkana was killed,” was the headline reporting the incident in Maariv newspaper. The news also reported that the security forces initially claimed that the man, Ibrahim al-Aqra, 70, had died of a heart attack. However, at the hospital a rifle bullet was found in his body.

Following the violent incident that took place on the lands of Biddya which resulted in the death of Ibrahim al-Aqra, Adv. Plia Albeck wrote to the Minister of Justice describing the chain of events that led to the unnecessary death. In her letter, Albeck detailed the falsifications and false claims of land acquisition, which were legitimatized and approved by the Ministerial Committee for Settlement – according to all the official rules formulated for the purpose of implementing the procedure of land acquisition in the West Bank by Israelis. The letter sent by Albeck, who was far from being a suspect of hostility towards the settlement enterprise, reveals the ease in which the mechanism of permits was bypassed by slick contractors who were aided by the misconduct of Deputy Agriculture Minister Michael Dekel. Dekel was described as violating the rules of procedure in the Ministerial Committee and in the case of Elkana D. turned the committee into a rubber stamp. Albeck added that both the private company and Deputy Minister Dekel knew in advance that most of the landowners had not sold their land. “I have no doubt,” Albeck wrote, “that the Ministerial Committee did not intend to approve the use of IDF’s force and weapons in support of a Jewish commercial company entering a privately owned Arab land, which had not been sold, and take over control from the hands of their owner. The owner was shot to death by the IDF while trying to protect his plot and prevent the bulldozers from entering the land. And all this – under the auspices of the Ministerial Committee’s decision to establish a settlement there. However, even if the Ministerial Committee did not intend to – that was the result.”

In order to monitor the implementation of the decisions made by the Ministerial Committee on Settlement, a “Monitoring Committee for the Implementation of Decisions in Settlement Matters” was established. Adv. Plia Albeck was a member of this committee in order to address issues under her responsibility – the legal aspects of land use for the purpose of establishing settlements. In July 1983, after the Ministerial Committee on Settlement approved Deputy Minister of Agriculture Michael Dekel’s proposal to include private individuals and entrepreneurs in the construction of West Bank settlements, the Monitoring Committee decided that the Ministry of Justice would examine all the concrete decisions made by the Committee of Ministers by virtue of this decision, “in order to locate, if any, problems of principle or problems of significance on the subject of land.” In a long review, Albeck detailed the results of her examination. Regarding Elkana D., Albeck wrote that the decision to establish the settlement was made contrary to given oral advice, and that the developer intended to build on an area that was five times larger than he claimed to have bought, on privately owned land by Palestinian owners. Albeck further noted that the criminal aspect of this serious affair would be dealt with separately. Following Albeck’s conclusions, it was decided to convene a meeting regarding the settlements that turned out to be the most problematic, including Elkana D., where according to Albeck “Michael Dekel tried with great success to trick everyone, including me.” In light of this, Albeck turned to the Attorney General and requested that more people from the Ministry of Justice participate in the meeting in order to strengthen her position.

Despite the difficulties, allegations of forgery and the death of an innocent man – the plan to establish Elkana D. was not abandoned. In 1990, a cabinet decision was passed which replaced the decision of the Ministerial Committee for Settlement from 1983. According to the new decision, Elkana D. will be established on “state land and private land that will be allocated for the establishment of the settlement subject to the opinion of the director of the Civil Department of the State Attorney’s Office.” It was also stated in the decision that the name of the settlement was changed to “Gabriel”.