My recent article on the Ottoman Land Law (“Arab land claims: Are they valid?” February 11, 2014 ) explained why, according to this law, Arab claims of private ownership against settlements were baseless. Yet, Israel’s legal establishment – High Court justices, legal advisors, attorneys general, ministers and politicians – accept these land claims as valid.
The following analysis explains why and, hopefully, will encourage further investigation.
During its occupation of Judea and Samaria (1949-67), the Jordanian government divided areas under its control among local residents and registered them as land owners. After surveying, they assigned vast areas to families and villages, entitling residents with a form of deed. Since the amounts of allocated land were extensive, most of it remained unused. According to the Ottoman laws, which were applicable, state land that was given away but not used reverted to the sovereign power, the state.
That didn’t happen, however, because Jordan changed this law by registering Arabs as landowners, thereby creating deeds which allowed the new “owners” to sell and/or transfer rights. This was done to pacify local residents by creating a basis for their “West Bank” status, citizenship, and hopefully, loyalty. The Jordanian government added one restriction: selling land to Jews was made (and still is) a capital crime.
Hundreds of Arab land owners and agents living in Palestinian Authority-controlled areas have been imprisoned, and many murdered, for selling land to Jews.
By the mid-1970s, when the settlement movement began, and as it developed, the Arabs whose names appear in the Jordanian registry had died. In cases where the land had been vacant for many years, Israeli authorities declared it abandoned and allowed Jewish communities to build there with infrastructure provided by agencies of the state.
Recently, Peace Now and Yesh Din, representing Arabs who claimed inheritance rights, and sometimes without any claimants, appealed to the High Court against Jewish communities.
The state’s legal authorities (Civil Administration, legal advisors, etc.), based on the Jordanian land register, certified that the land in question was privately owned, although not necessarily by the Arabs who claimed to be inheritors. Relying on what the state presented and without verification, the High Court ordered Jewish communities destroyed.
The first problem is that all of the cases against Jewish communities were brought to the High Court, which does not examine evidence, rather than lower courts which are specifically mandated and equipped to decide questions of land ownership.
The High Court could have asked for an authoritative opinion from lower courts, but did not.
The second problem is that Israel’s legal establishment – unjustifiably – recognizes the legitimacy of the changes which Jordanian government made. Since Jordan’s occupation of Judea, Samaria and eastern Jerusalem was illegal and not recognized by any country, except Britain and Pakistan, Israel is not obligated to acquiesce to Jordan’s land give-away program, or any of its laws.
Israel’s recognition of Jordanian law – rather than Israeli, or at least Ottoman and British Mandate laws – as supreme has caused billions of dollars in damages to Jews, violates the principles and norms of democracy, and undermines the Zionist enterprise. Even more significantly, the policy of improperly certifying Arab land claims encourages condemnation of Israel and Jews for “stealing Arab/Palestinian land.”
Since this is one of the main charges of BDS campaigns, this questionable legal position undermines Israel’s reputation.
This cabal of legal and judicial professionals with virtually unlimited control has usurped Israel’s democracy. Operating by its own rules, it enforces its dictates through the state’s police powers and its institutions.
Hidden behind black robes, certified by emblems of authority, it functions as a semi-secret government, unaccountable and beyond the reach of elected officials.
Israel’s legal establishment has never challenged the right of Jordan to arbitrarily and unilaterally change prevailing Ottoman and Mandate law. Generations of Israeli lawyers have been trained to accept this absurdity and Israeli jurists made it law.
The acceptance of Jordanian land registrations by Israeli judicial bodies and High Court encourages Arabs to claim ownership of areas to which they are not entitled and on which Jewish communities, security barriers and water treatment facilities have been built.
If the reason for accepting Jordan’s land registration is in order to avoid a legal vacuum, this could be resolved by using a combination of Ottoman and Mandate regulations – as products of legal sovereigns – and Israeli laws without reference to Jordanian law.
Although Jordan renounced all claims to Judea and Samaria as part of its peace treaty with Israel two decades ago, strangely, Israel continues to honor and abide by Jordan’s illegal and anti-Israel legacy.
Israel’s policy of recognizing Arab land claims based on Jordanian law is anti-Jewish, anti-Zionist and anti-democratic. This matter should be legislated, not left in the hands of bureaucrats and legal officials.
Changing this policy would be an expression of Israeli maturity and integrity.
Coupled with adopting the Levy Commission report, which recommended special courts to decide property disputes, implementing a new policy with regard to land claims to prevent unnecessary destruction of Jewish homes and communities would affirm Israel’s legal, historical and moral rights and its sovereignty.
What is Prime Minister Binyamin Netanyahu waiting for?
The author is a PhD historian, writer and journalist.