Since the mid-19th century, acquisition and distribution of land and property rights throughout the Ottoman Empire were organized in Law Codes which were continued under British-mandate rule and were recognized and incorporated into Israeli administrative practice in Judea and Samaria.

The Codes, which are available in Survey of Palestine 1920-45, designated several different types of land.

Miri land (owned by the emir, the sovereign power) is state land suitable for agriculture.

It was given with the condition that it be used (“usufruct”) and taxes paid; if it was not used for three years it reverted (automatically) to the state. The purpose was to encourage cultivation and collect taxes, not a permanent unrestricted land grant.

According to the Survey, when miri land was continuously cultivated for three years it could be claimed and registered – with the rule: “use it or lose it.”

Mewat land – “dead,” or unclaimed land unsuitable for cultivation, which constituted over half of what was then called Palestine, is always owned by the state, and official permission was required before being allowed to afforest or cultivate. As the British ordinance put it, use of mewat land is a trespass; use of miri land is not.

“Musha land was Miri or Mulk [privately owned] land that was cultivated in common by numerous owners ... [it] was gradually sold out to absentee owners ... and used tenants or hired labor.”

In addition, “survey lands,” or “lands under clarification,” are those undergoing examination to resolve possible claims of private ownership and to complete the process of declaring them state lands.

According to Alex Safian, the director of CAMERA, even if state land has been cultivated for 10 years, it is not “private,” whether or not it is registered; it is a form of leasehold tenure which is conditional. (“PeaceNow’s Report on Settlement Land,” CAMERA, 2006).

Under Jordanian rule, however, Arabs were given land and could register it as private property. This violated the Ottoman requirements that the gifted land be used and taxes paid.

Disputed lands which Arabs (and NGOs) have recently claimed in places like Ofra/ Amona, Migron and Ulpana/Bet El were deemed abandoned and ownerless by the state. This was consistent with Ottoman and British-mandate law: if the person who originally registered the land died intestate (without heirs) and the land was never used, the land reverted to the state. Therefore, Jews were allowed to build there – legally.

After Jews established communities and received government support – thus de facto permission – Arabs filed ownership claims with the Civil Administration. Although evidence for these claims was unverified and false, the Minhal and Military Advocate General (MAG) mistakenly certified that the lands belonged to Arab claimants. Based on such improper and invalid procedures, Peace Now and Yesh Din took Arab claims to Israel’s High Court.

These appeals to the High Court were done deliberately in order to avoid submitting the claims to lower courts which are mandated and equipped to examine land disputes, where they would thus likely be rejected.

The High Court, however, does not examine documents; it relies only on what the state prosecutor, the Minhal and MAG – presents. Based on the state’s inadequate and faulty analysis, the High Court decided in favor of Arab claimants.

Apparently, government functionaries routinely declare land claimed by Arabs as “privately owned” without proper documentation, without certifying that claimants have valid title, and without examining the status of lands in question.

This problem was further complicated when then-Chief Justice Dorit Beinisch ruled (in September, 2011) – unilaterally and without precedent or legal basis – that all land in Judea and Samaria not specifically designated as “state land” would be considered “private Palestinian land.”

No other democratic country allows courts to make laws; that is the exclusive right of the legislature, e.g. Knesset.

Claims that Jews have built on “private Arab land,” therefore, are untrue unless and until proven in court – but most cases involving Judea and Samaria never get there.

Although Jordan changed the law when it ruled the area, as an illegal occupier, the changes were illegal. Under the Hague Regulations, therefore, Israel would be required to uphold British mandate laws.

In order to resolve this confusion, disorder and possible fraud, Prime Minister Binyamin Netanyahu appointed former justice Edmund Levy and a committee of legal experts to examine the problem. They recommended establishing a special land disputes court which would adjudicate cases professionally, rather than relying on questionable decisions by government officials who lack proper training and guidelines.

Unfortunately, however, Attorney-General Yehuda Weinstein objected and has prevented these recommendations from being brought to the government. Weinstein’s office did not explain his opposition, and the Prime Minister’s Office did not explain why they are restricted by Weinstein’s advisory decision.

This is a loss for all sides since it prevents important issues from being evaluated and decided by elected representatives – i.e., it is undemocratic. The Levy Report can be accepted or rejected. Suppressing it, however, renders Israel’s political and judicial system a sham and shames us as a nation.

The author is a phd historian, writer and journalist.

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