What is ‘private Palestinian land’?

What follows is two articles by Moshe Dann in which he explores the question of “private Palestinian Land”. Beinisch’s decosion that all land not specifically designated as “state land” would henceforth be considered “private [Palestinian] land.” is indeed a bombshell and must be vigorously opposed. Furthermore the Attorney General, Weinstein, who was appointed by PM Netanyahu is a powerful leftist who thwarts the democratic process. He has opposed the government in all its attempts to legislate laws to protect our democracy. Why does the PM put up will him? Ted Belman

Beinisch’s bombshell
Moshe Dann, JPOST

Claims that Jews have stolen and built on “private Palestinian land” should not be decided by politically motivated individuals and advocacy groups.

Supreme Court President Dorit Beinisch’s decision on September 12 broke sharply with traditional interpretations of law, yet the media largely ignored it.

In a case brought by Peace Now against the Binyamin neighborhoods (“outposts”) of Hayovel – where Maj. Eliraz Peretz’s widow and children live – in Eli, and Harisha, in the Talmonim bloc, Beinisch directed the state – i.e., the Civil Administration for Judea and Samaria – to determine what constitutes state land. According to her ruling, all land not specifically designated as “state land” would henceforth be considered “private [Palestinian] land.”

She also gave the state 60 days to provide a schedule for destroying all (Jewish) building on “private land,” with the exception of the Peretz home. Peretz was killed in a battle with Hamas terrorists in March 2010.

This ruling radically shifts the burden of proof with regard to property disputes in Judea and Samaria. Up until now, Arabs who claimed that their land was taken illegally have been required to prove the veracity of that claim. Now, Jewish communities that claim the land is not privately owned and is thus available for settlement will be required to back up their claims. Since Beinisch’s decision cannot be appealed, the ruling will stand as law unless the Knesset acts to legislate otherwise.

ALTHOUGH THE Supreme Court president may have sought to clarify and simplify questions of land ownership, her decision overrides important distinctions and categories of land established by prior administrations and accepted by the courts. Her ruling redefines which lands are to be considered “disputed” and seems to accept at face value unverified Arab claims to land that Arabs have simply expropriated illegally.

Moreover, since Israel has not declared sovereignty or annexed land beyond the 1949 armistice lines (except for eastern Jerusalem and the Golan Heights) Beinisch’s ruling could apply to many other areas in Judea and Samaria as well.

Not only are “hilltop” communities like Migron, Amona, Givat Assaf and Gilad Farm now at risk, but large parts of established towns like Ofra, Beit El, Eli, Elon Moreh and others could now be targets for destruction.

According to Israeli law, jurisdiction about land ownership issues in Judea and Samaria rests with the civil administration in conjunction with the State Attorney’s Office (part of the Justice Ministry). Both have been accused of pursuing anti-settlement policies.

Decisions about land ownership should be based on impartiality, objectivity and professionalism. Unfortunately, however, they are often influenced by political agendas. In the absence of documentation and detailed land surveys, for example, the civil administration relies on aerial photographs for evidence of working the land, which are used to support claims of ownership.

NGOs and Arabs often cite maps produced during the British Mandate to “prove” land ownership in order to and thereby contest the legality of Jewish settlements. But according to Dr. Dov Gavish, author of The Survey of Palestine Under the British Mandate, 1920-1948 (2005), these maps were fiscal maps, often arbitrary and inaccurate, and should not be considered proof of ownership.

Since “state land” means ownerless land that was once controlled by Turkish, British and Jordanian administrations, then Israel, as the sole legitimate sovereign successor, seems to have full legal rights to the land. That would include all conditions, restrictions, obligations and responsibilities attached to the land.

Similarly, lands that had been gifted or designated by the state to an individual, clan or village but was not used, abandoned property, and land in which the owner dies intestate all revert to the state by law.

Beinisch’s ruling also seeks to overturn the meticulous work of Plia Albeck, who directed the Civil Department of the State Attorney’s Office for 24 years until she was fired by attorney-general David Libai in 1993, when Yitzhak Rabin became prime minister. During her tenure, Albeck was responsible for determining land ownership and provided the legal basis for establishing Jewish communities in areas Israel acquired in 1967.

Basing her decisions on Ottoman/Turkish, British and Jordanian law, Albeck, who died in 2005, defined many areas in Judea and Samaria as state land, thus allowing their subsequent designation for settlement.

In 2004, then-prime minister Ariel Sharon attempted to reverse Albeck’s findings in the leadup to the withdrawal from the Gaza Strip and northern Samaria. Sharon hired Talia Sasson, a member of Peace Now and formerly an attorney in the State Attorney’s Office, to investigate; her report in 2005 castigated government agencies for their involvement in settlement building, sought to redefine state land, and asserted Palestinian claims that all settlements were illegal. Beinisch seems intent on implementing Sasson’s report.

CLAIMS THAT Jews have stolen and built on “private Palestinian land” should be decided upon by competent, objective authorities based on evidence in courts of law – not by politically motivated individuals and advocacy groups. The larger question, however, is to whom this disputed territory belongs.

Since “Palestine” was never a separate legal or sovereign entity, designating land as “Palestinian” or belonging to “the Palestinian people” lacks accuracy and authenticity.

Ironically Justice Beinisch’s decision to make the question of land ownership in Judea and Samaria subject to Israeli civil law may provide the basis for establishing sovereignty over and extending the state’s jurisdiction to areas currently under military control. That would be a step forward for Israeli democracy and fulfilling the historic mission of the Jewish people in the Land of Israel.

Blood libel: The myth of ‘private Palestinian land’
By MOSHE DANN, JPOST

Because land on which most settlements are built is not agriculturally useful, Arabs did not claim ownership until recently.

Prime Minister Binyamin Netanyahu’s assertion that Jews would not be allowed to build on private Palestinian land is a long-standing policy endorsed by Israeli governments and the judicial system.

The question, however, is what constitutes “private Palestinian land” and who decides what is and what is not private Palestinian land? If it is true that Jews are stealing land, this violates Jewish and Israeli laws and values and justifies calls for boycotts, sanctions and even the elimination of the state, since it applies to areas acquired after 1948 as well as in 1967. A devastating moral and legal indictment, it would undermine Israel’s moral foundation, its raison d’etre.

Promoted by Arab propagandists and their supporters, politicians, academics, media and anti-Israel NGOs, this theory has also been adopted by Israelis, including prominent judicial figures who give it legitimacy. A poisoned narrative based on ignorance and/or misunderstanding, it is a lie.

Based on titles and deeds, land that is registered becomes private property. But what if there are no documents to prove ownership?

Land that Arabs claim as their private property was not purchased; it was state-owned land that was either given away by the sovereign power during the Ottoman, British and Jordanian occupations or was encroached and developed. Arab claims based on gifts and alleged agricultural use are not property deeds. How, then, did this confusion about “private Palestinian land” come about?

Using ownerless, uninhabited land is a universally recognized method for claiming it, unless contested. Until the modern period, land registration, especially in sparsely populated areas like the Middle East, Africa and North Africa was not widely practiced.

With the rise of nation-states and the development of bureaucracies this changed.

According to international agreements such as the San Remo Accord (1920) and the League of Nations (1922), the Mandate for Palestine was intended as a “Jewish National Home.” This anchors the rights of the Jewish people and Israeli sovereignty in law. It has never been superseded.

Administering the Mandate, Britain organized land surveys in Palestine, primarily to collect taxes and create an orderly system of land ownership and transfer. According to Dr. Dov Gavish, who wrote the only extensive study of this topic, Survey of Palestine, 1920-1948 (2005), maps were drawn based on where inhabitants were found and on verbal claims, usually by local mukhtars (chiefs) and sheikhs, not on documents or land registration.

Based on aerial photos and evidence of cultivation, villages were arbitrarily divided into 60-hectare (about 148-acre) blocks, which were then sub-divided among local peasants. Highly inaccurate, these fiscal maps nevertheless became the basis for taxation. They did not and do not reflect legal ownership.

As Gavish notes, the registration process lacked legal procedures for determining proper (actual) ownership, the investigators often had little professional training, surveyors who drew boundaries relied on inaccurate methods (such as vague geographical markers), and were hampered by constant Arab violence.

Maps held by Turkish and Jordanian governments are unavailable, and many maps held by the British Mandatory government were accidentally destroyed. The Israeli Civil (Military) Administration also has aerial maps which are used to determine land use, and surveys which are not necessarily reliable or accurate documentations of private ownership.

These questionable maps and documents, however, are used to sanction Arab claims and charge Jews with stealing “private Palestinian land.” Although these lands could have been registered, most were not. Moreover, land which was not used, or not passed on by inheritance reverts to the original owner, the state, by law.

Most of what is called “private Palestinian land” is claimed – and some registered – based on policies that legitimized squatting after the fact and by counting land as “owned” when in fact it had been leased, or simply used.

During the Mandate period, most of the land that was registered by individuals was called “Miri.” Leased, not privately owned, “Miri” land remained property of the state.

Although land that was not used for 10 years should have reverted to the state, large areas of such unused land remained under local Arab control.

Another category of ownerless land, called “waste land” (“Mewat”), is known throughout the Middle East and recognized in international law. Dr.Ya’akov Meron’s authoritative article, “Waste Land (Mewat) in Judea and Samaria,” (Boston College Int’l & Comparative Law Review, 1981) notes that this land was not included in state land and could be claimed by whoever used it, Jews or Arabs.

Because land on which most settlements are built is not agriculturally useful, Arabs did not claim ownership until recently, when anti-settlement NGOs asserted that these lands belonged to Arabs, individually and/or collectively based on hearsay, maps and documents that are grossly inaccurate and often false.

Assertions by NGOs and Arabs that land is privately owned, however, even when approved by politically motivated government and judicial officials, including the State Prosecutor’s Office and Civil Administration, are not necessarily true. Although these claims may be blindly accepted by the High Court, they are not valid until they have been examined and authenticated by lower courts. This has led to much confusion about what constitutes “private Palestinian land.”

Accusing Israeli Jews of “stealing private Palestinian land,” condemning “settlements” as “illegal,” “violations of international law” and “the occupation” are powerful weapons in the war to demonize and delegitimize Israel.

Commonly accepted and taken for granted, these charges are used to justify Arab terrorism (“resistance”) and subvert Israel’s moral right to exist. Such allegations are inaccurate and feed anti-Israel propaganda. Who needs them?

The author is a PhD historian, writer and journalist.