On “Private Palestinian Property”

plans to legalize 13 of the 18 settlement outposts against which petitions to the High Court of Justice have been filed. Because the 13 outposts are not built on privately-owned Palestinian land, the legalization process could presumably make the petitions against them moot.  The remaining five outposts cannot be legalized, because they are located on privately-owned Palestinian land, and so are slated for evacuation.

Reflecting on the matter of the behavior of the government – and the lack of firm instructions to the Attorney-General’s and the State Prosecutor’s offices – I think that there is a sub-text that has not been adequately stressed in the issues of Migron, Ulpana neighborhood, et al. which is what exactly is “private Palestinian property”?

For background, as regards the HaYovel neighborhood in Eli, we were informed:

For the first time in three years, the state has confiscated uncultivated land in the West Bank. The land will be used to legalize a nearby settlement outpost.

Last week, acting on orders from the government, the Civil Administration declared 189 dunams of land belonging to the Palestinian village of Karyut to be state land, so as to retroactively legalize houses and a road in the Hayovel neighborhood of the settlement of Eli. This would seem to violate Israel’s long-standing commitment to the United States not to expropriate Palestinian lands for settlement expansion.

An Ottoman land law dating from 1858 allows uncultivated land to be declared state land. This law, which is still in force in the West Bank, is what was used to carry out the expropriation.

According to last Sunday’s decree, the lands in question belong to the village of Karyut. Hayovel was built on these lands in 1998 as a temporary outpost, and later permanent houses and an access road were built. A 2005 report on the outposts by attorney Talia Sasson concluded that Hayovel was built on private Palestinian land.

There it is again, “private Palestinian land”.

I have no doubt that Arabs own land as private property.  But even Talia Sasson, we are informed,

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 Ms. Sasson’s summary 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.

Indeed, what

is the legal definition of what is public, or state, land, and what is private land…[by Peace Now] is extremely misleading, and in quite a few places simply incorrect. For example, according to [its] 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”.

And the CAMERA criticism of Peace Now claims goes further:

what Peace Now is calling “private Palestine land” is under the Ottoman Code at best miri land, and it is therefore not privately owned. Rather, it is land in which a person is granted by the state a limited right of use (whence the term usufruct). The rights include, for example, that once registered someone else cannot try to cultivate the same land. This is similar to the rights one has in renting an apartment – someone else cannot come and try to live without permission in the same apartment, but that doesn’t mean the renter owns the apartment. Thus, contrary to Peace Now, the land remains the property of the state, and therefore it does not 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. If there is a failure to cultivate the limited rights granted by the state are withdrawn, not ownership of the land, which was never granted in the first place.

In addition, regarding the West Bank, there is under the Ottoman Code another very important category of land known as mewat, or “dead land,” which was deceptively unmentioned by Peace Now.Mewat land, according to the Survey is:

… 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) (emphasis added)

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)

There is more but to avoid to much complexity I would wish to stress one additional legal point.

It is about time that Israel announce that all land that was distributed by King Hussein as gifts to his supporters and to others to gain their support was an illegal act and no private property rights can accrue.  Jordan was an illegal occupier of Judea and Samaria according to the entire world.  Its annexation of what it called the West Bank in April 1950, an act of Hussein’s grandfather, Abdallah, similarly was illegal. Whatever they distributed and surely what was not planted, built upon or otherwise used by those Arabs who received those gifts cannot be considered in any way “private”.

That is a crucial point.

And as IMRA has translated:

How rules for agricultural land ownership changed

One common way to to register the ownership of land in Judea and Samaria is by applying the provision of Ottoman law, that if someone held land for ten consecutive years without opposition he owns the property.  In fact, the ownership of much of the privately held land inside the Green Line was established this way.  This method of property transfer is especially useful in the case of  Palestinians who face the death penalty for selling land to Jews. This way money crosses between the parties and all the Palestinian has to do is keep
quiet for ten years.

In a move to undermine this procedure,  Mr. Mike Blass, who serves as Deputy Attorney General, filed with the Supreme Court that “at present … the seizure of land … is seen as a forbidden and immoral, and as a basis for anarchy.” Blass asked the court to not only bar the future use of the ten consecutive year provision to record future property ownership but to void the ownership registrations made to date in Judea and Samaria (by Jews) on this basis.

At the same time, Captain Ronit Levin, acting as the legal advisor to the West Bank Military Prosecutor’s Office, issued a series of orders and directives to strip the ten year rule.  She ruled that the ten year count begins again each time a farmer changes the type of crop that he grows on the land.

Two months ago the Supreme Court upheld this position.

Ronit Levin also came up with an additional legal innovation, called a “disturbing use” order.  It allows the Civil Administration to rule that a person’s possession of property is illegitimate because it may raise political or security issues.  The Civil Administration is not required to provide any documentation to support the “disturbing use” order. This order was first issued by the Civil Administration against residents of the “House of Contention” in Hebron four years ago.

According to lawyer Bezalel Smotritz of the Regavim movement this order has been used twenty times.

The combination of these innovations is a pincer movement which threatens almost every Jewish farmer in the West Bank.

And, by the way, illegal Arab construction whether in Israel or in Judea and Samaria is not adequately dealt with by the authorities.  But that you guessed already.

All this lack of support for Jewish residency rights in Judea and Samaria together with the promoting of the Arab claims is a combination that is anti-Zionist which needs an order from the government to be halted and righted.