Land Ownership in Palestine/Israel (1920-2000)

The British Mandate
Land ownership under the British Mandate was based on the Ottoman Land Code, with additional legislation adopted during the Mandate. Under the Ottoman Code, land was classified in five categories with provisions for documentation of registration. The two basic types of land were mulk (private lands), and miri (land
leased from the state). While the latter was subject to certain limitations, miri land was inherited, sold, and generally regarded as the land of the user. Under the code, individuals able to prove cultivation of a plot of land for 10 years or more were issued a title of ownership.

Miri also included communal and common lands. Most miri land registered in the Ottoman Land Registry (tapu) was of this type. A considerable portion of both mulk and miri land was administered independently of the British administration by Muslim and Christian awqaf (religious endowment) and handled as nontransferable properties for the benefit of the religious communities. At the time of the British occupation of Palestine, the majority of lands in the country were either unregistered in the tapu, or the registration was imperfect and obsolete. The Mandate government added a sixth category of lands, "Public Lands", which was defined as lands under the control of the government bytreaty, convention, agreement, succession and lands acquired for public purpose. Public lands totaled approximately 1,500,000 out of 26,320,000 dunums (1,500 sq. km or 26,320 sq. km) at the end of 1943.

 

The Mandate government also adopted measures under the 1928 Land (Settlement of Title) Ordinance for identification and registration of land according to cadastral survey. By the end of the British Mandate, titles were settled and registered on 25% of the total land area of Mandate Palestine. Five laws were adopted between 1920 and 1940 to address Palestinian Arab concerns about Jewish/Zionist land purchases in Palestine, including the eviction of agricultural tenants by mostly absentee landlords who were not Palestinian. The laws, however, failed to provide the protection that Palestinian Arabs Land Ownership in Palestine/Israel (1920-2000) demanded, often due to loopholes, which allowed individuals and agencies to circumvent the legislation. In 1938, moreover, Zionist officials were granted permission by Mandate authorities to copy land registration and taxation documents pertaining to the status of Palestinian Arab land ownership for the express purpose of facilitating Zionist land acquisition.

Under the British Mandate, religious waqf property was administered by the Higher Islamic Council and the Christian Churches. In 1937, the Higher Islamic Council was dissolved based on the Defense (Muslim Waqf) Regulations in the framework of the British repression of the Arab Revolt (1936-39). The previously autonomous Higher Islamic Council was replaced by an appointed commission supervised  by the British High Commissioner. Transfer of land in Palestine to Jewish ownership was mainly the result of the activities of two organizations, the Keren Kayemet LeIsrael (Jewish National Fund/JNF), incorporated in England in 1907 and later in Israel in 1954, and its affiliate Himanuta.

According to its Statutes, the JNF is prohibited from the transfer of purchased land to non-Jews.Himanuta was established  by the JNF in 1936 as a subsidiary of the JNF to purchase with transferred capital and hold land for German Jews until their immigration to Palestine. Unlike the JNF, the Statutes of Himanuta allow the agency to sell land to non-Jews. Himanuta thus afforded the JNF greater flexibility in its land dealings - trading land with non-Jews - in order to geographically homogenize scattered land purchases. On the eve of the 1948 war, the Jewish National Fund had purchased some 1 million dunums of land. Total Jewish land ownership recorded at that time comprised between 5.67% and 6.59% of Palestine.

When open military confrontations began in 1947-48, many Palestinian landowners  were not in possession of their ownership certificates, because they had submitted them to the regional British Land Settlement Offices in Jaffa, Beersheba, Jerusalem, Tulkarem, Jenin, and Nablus. With the division of Palestine according to the cease-fire agreements in 1948-49, Palestinian landowners no longer had access to their documents, which were consequently transferred to and archived in capitals beyond their reach (London, Amman, West Jerusalem/Jaffa). Access to these archives has remained restricted until today.

Israeli State Legislation and Policies
In the 1948 war Israel obtained military controlover 77.9% of the land of Mandate Palestine.  The Palestinian-Arab minority that remained within the borders of the new Jewish state was primarily rural and impoverished. Most urban professional and political elites from the Palestinian community had been exiled. In the absence of a Palestinian legal community, Israeli land legislation met little professional challenge, effectively curbing potential international criticism of overt confiscation of Palestinian property by the state institutions. A series of some forty new laws were adopted in the first two decades of Israeli rule, in order to transfer ownership of conquered Palestinian Arab lands to the state of Israel and make it available for the benefit of its Jewish majority. These laws include:

1950 Absentees' Properties Law authorized the government to transfer property from so-called absentee Palestinian Arabs to Jewish ownership by virtue of a government payment to the Israeli Custodian of Absentee Property. The Israeli government thus claimed that the property had been acquired legally (i.e., by payment) rather than through confiscation. An absentee is defined as any person,  citizen, or resident of an enemy state or of Palestine who was present in an enemy country, or an area of Israel held by enemy forces, at any time between 29 November 1947 and the date of cancellation of the state of emergency.

Under the law, the Custodian can also acquire control of property by declaring the property to be absentee. The Custodian was permitted to not only lease or hold on to property under his custodianship, but to sell it to a Development Authority established subsequently by the government. Dividends from the sale of the property (less administrative and legal expenses) were to be held by the Custodian  in fund until such time as the state of emergency, under which the law was declared operational, came to an end. As regards Absentees' property, the state of emergency is still in existence.

In September 1953 the Custodian signed over his "rights" to land he was responsible for in return for a price paid by the Development Authority, the sum of which was returned to the Development Authority in the form of a loan. Several million dunums of land were transferred to the JNF. Islamic Waqfproperty, as well as lands and property of internally displaced Palestinians who were classified as "Present Absentees" was also confiscated under the Law. By 1954, more than 4.5 million dunums of land classified as absentee had been transferred to the state of Israel.

Israel's "Custodian" of Absentee Property
Following severe criticism by the Israeli State Comptroler (Annual Report, No. 41) of the unlawful interference of the Israeli Land Authority (ILA) with the work of the Custodian of Absentee Properties, the Knesset Committee on State Comptrol Affairs convened a special hearing with the Custodian on 7 January 1992.

 Following are excerpts of this hearing, which illustrate the process
of property confiscation. Method used by the Custodian to declare
properties as absentee properties Custodian: If we receive confirmation or evidence from the Mukhtar, or from another person who informs us that the owners are absentees, we issue a certificate of injunction for the property. If we receive a certificate or an affidavit made under oath from the Mukhtar, then I issue
a confiscation certificate and declare the property as absentee property.

MK Zucker: Can you identify a person, or people, who acted as regular informers, persons who would regularly declare that certain properties are absentee properties? Custodian: Maybe yes.
MK Zucker: … I would like to put this into the most blatant form: there are professional informers who pass fraud affidavits to you. And you take these properties, even without the knowledge of their owners. Custodian: Not always. Sometimes, as a result of legal conflicts between the tenants and the landlord, the
issue reaches us, or the court involves us.

MK Tichon: But MK Oron says that there are professional informers. Makhateer of villages, who - in exchange for money - will give you any evidence you want. And actually another person looses all his property, because of a fraud declaration that he even doesn't know of. This  means that it is enough that a Mukhtar sends you a letter and the property is declared absentee property?
Custodian: Yes. MK Tichon: You don't publish your decision anywhere? Custodian: No.

MK Oron: You also don't check?
Custodian: I have no ability to check.
MK Tichon: If I write to you that in Sheikh Jarrah there is
an absentee property, you will immediately take it?
Custodian: Yes. I can act in good faith.
Source: Affidavit of MK Haim Oron to Atty Dani Seidmann in the
context of a High Court Petition against the sale of a Palestinian
home in Silwan/East Jerusalem to the Jewish settler organization
El'ad after it had been declared absentee property.

1951 State Properties Law
provided for the registration as Israeli state property of all land previously held by the British Mandate administration, including land used collectively by Palestinian Arab villages which had been registered with the British High Commissioner on behalf of the villages. Approximately 15 million dunums of Palestinian land was expropriated under this law.

1953 Land Acquisition (Validation of Acts and Compensation) Law
permitted the state to formalize the transfer of Palestinian land that on 1 April 1952 was not in the possession of its owners; that had been used or assigned between 14 May 1948 and the 1 April 1952 for military and settlement purposes; and was still required for these purposes. By 1954, more than 1.2 million dunumsof land had been confiscated from Palestinians.

1943 Land (Acquisition for Public Purposes) Ordinance
allows the state to take control of lands for permanent ownership or temporary use for public purpose upon payment of compensation. Under this law, millions of dunums of land, including land in the eastern areas of Jerusalem annexed by Israel in 1967 and land in the Galilee, were confiscated to construct Jewish settlements in areas with a predominantly Palestinian population.

1960 Basic Law Israel Lands:
provides that "Lands of Israel", i.e. lands of the state, the JNF, and the Development Authority cannot be transferred by sale or in any other way. This law was consequently interpreted by the Israeli High Court as meaning that such land cannot be returned to a previous owner, even if s/he holds official title and that acquisition of ownership title through long-term cultivation according to the Ottoman Land Code is no longer possible.

1969 Land Law
concluded land registration in Israel based on the earlier British registry and all subsequent Israeli laws, and abolished all previous conflicting registration. Additional unworked lands were registered as state property, a step effecting especially the Bedouin in al Naqab (Negev) who did not hold official titles for vast lands used historically as grazing grounds. Under the 40 some laws adopted by the state of Israel, including those cited above, close to 93% of Palestinian land, including 80% of the Islamic Waqf property, has become - in the terms of Israeli law - "Lands of Israel", i.e. defacto state lands. Palestinians inside Israel privately own no more than 3% of the land due to five decades of expropriation.

Today, Palestinian community organizations and NGOs, arguing on the basis of recent Israeli anti-discrimination legislation (1992 Basic
Law: Human Dignity and Freedom and 1994), are better equipped to challenge Israel's discriminatory laws and policies. Lobby initiatives have been launched for Palestinian access to remaining Islamic Waqf properties and for the adoption of alternative Israeli master plans; confiscation of Palestinian property - whether by the Custodian of Absentee Property or by the state - no longer goes unchallenged. Persistent legal struggle of the Palestinian minority in Israel has become a tool for the protection of the lands and properties of those who remained. However, for the majority of disowned Palestinians, refugees and rightful owners of the major portion of lands and properties confiscated by the Israeli state, Israel's current legal system does not leave a loophole for effective restitution claims.

Sources: Survey of Palestine, Anglo American Committee of Inquiry, prepared in December 1945 and January 1946, Reprinted by the Institute for Palestine Studies, Washington, DC, 1991, Vol. 1 pp. 225-308; Sami Hadawi, Palestinian Rights and Losses in 1948, A Comprehensive Study.
London: Saqi Books, 1988, pp. 35-75; Michael Dumper, Islam and Israel, Muslim Religious Endowments and the Jewish State. Washington, DC: Institute for Palestine Studies, 1994; Walter Lehn, The Jewish National Fund. London: Kegan Paul, 1988; David Kretzmer, The Legal Status of the Arabs in Israel. Denver, CO: Westview Press, 1990; and, Hussein Abu Hussein and Fiona McKay, Access Denied: Palestinian
Access to Land in Israel. Haifa: Galilee Center for Social Research (unpublished manuscript); Israel Government Yearbook; Arab Association for Human Rights/Nazareth; Uri Davis in CPAP Symposium Proceedings (1999); Tawfiq Jabareen, adv.; Hussni Abu Hussein, adv..

Katzir and the Restrictions on Palestinian Access to Land in Israel
On the 8 March the Israeli High Court ruled against the Jewish Agency and the Israeli communal settlement of Katzir, which had attempted to prevent a Palestinian family from purchasing a plot of land to build a home in Katzir. The "lookout settlement" was established in 1982 jointly by the Jewish Agency and the Katzir Cooperative Society on so-called state land allocated by the Israeli Land Authority as part of a project to prevent the development of large contiguous Palestinian areas in the Galilee.

"…we ought always remember that the State of Israel will not be transformed into a democratic state when it becomes the state of all its citizens, Arabs and non-Arabs alike - rather it will become democratic when it is transformed to the state of all its citizens as well as its 'absentees', the 1948 Palestine refugees."
Uri Davis, "That's One Small Step for Adil and Iman Qaadan and One Giant Leap Towards the Democratization of the State of Israel"

The Cooperative Society only accepts Jewish members After being refused the right to purchase a plot of land or a home in Katzir in April 1995, Adel and Iman Qadan, a Palestinian couple from nearby Baka al Garbiya petitioned the High Court. Not wanting to rule on the sensitive political issues raised by the case concerning the discrimination  inherent in the statutes of Zionist organizations like the Jewish Agency, the Court appointed a conciliator, Jerusalem lawyer, Yoram Bar Sela, to try to resolve the dispute. With the failure of the conciliation process, however, the Court was forced to rule on the case.

The Court concluded that the state may not allocate land directly to its citizens on the basis of religion or nationality. Furthermore, the Court ruled that the state may not allocate land to the Jewish Agency knowing that the Agency will only permit Jews to use the land. "Where one may not discriminate directly, one may not discriminate indirectly." "Even if the Jewish Agency may distinguish between Jews and non-Jews, it may not do so in the allocation of State land."

Land Claims from Lebanon
In March, Lebanon's Foreign Ministry announced that it was preparing legal files concerning the property rights of Lebanese citizens in Palestine. In one case Faruq Hamade supplied the Ministry with 45 documents and receipts for taxes paid between 1936 and 1938. The 3,000 square meters of land claimed by Hamade lies in the villages of Jarda and Itmet in Israel. Owners are invited to present their claims at the Ministry of Foreign Affairs (Center for Legal Research and Documentation) and to the Embassy of Lebanon in Washington, DC (tel. 202-939-6300; fax 202-939-6324)

Sources: FOFOGNET, 15 March 2000 and
 

AFP, 23 February 2000.

The decision, moreover, did not open the door immediately for the Qadan family to purchase land and build a home in Katzir. The Court noted that its decision applied only to the "particular facts of this case" thereby preventing the ruling from being used as a precedent to challenge past land allocations nor did the Court did take a position with regard to different types of settlements and special circumstances. The decision is subject to appeal and according to the second part of the judgement: "The State must make [its] consideration based on the principle of equality, and considering various other relevant factors - including those factors affecting the Jewish Agency and the current residents of Katzir. The State of Israel must also consider the numerous legal issues. Based on these considerations, the  State of Israel must determine with deliberate speed whether to allow the petitioners to make a home within the communal settlement of Katzir."

Following the decision, the Jewish Agency decided to initiate special efforts to "ensure thatareas of the Galilee, the Triangle and the Negev remain in Jewish hands." The Agency approached the government to request a jointly formulated policy to ensure ongoing Jewish settlement in these areas, which contain a Palestinian majority. On the other hand, the deal considered by Ariel Sharon and Avraham Burg for the mass transfer of so-called state lands to ownership of the Jewish Agency will probably now be made void.

 Sources: #21 High Court: Decision on Katzir, 8
March 2000; Haaretz, 9 March 2000; Haaretz, 10
March 2000, AP 8 March 2000.