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(photo credit: Ariel Jerozolimski)
Like the petition filed in 1995 by Israeli Arab Adel Ka'adan to buy land and live in the Jewish Agency-developed community of Katzir, three High Court petitions heard earlier this week - protesting the sale of Jewish National Fund (JNF) land to Jews only - penetrates to the very heart of the Zionist movement, and arouses tensions between it and the overall responsibilities of statehood.
The petitions were filed by an Arab family seeking to buy an apartment in a building situated on JNF land in Carmiel, and three "ideological" petitioners: Adalah - the Legal Center for Arab Minority Rights in Israel; the Association for Civil Rights in Israel (ACRI); and the Arab Center for Alternative Planning. These groups accused the government of acting illegally by discriminating against Arab citizens in marketing land owned by the JNF to Jews only.
It also demanded that the JNF end its policy of holding land only for the use of Jews.
All the petitions were filed in 2004. On January 26, 2005 Attorney-General Menahem Mazuz surprised many when, in response to the petitions, he agreed that the state's land authority - the Israel Lands Authority (ILA) - could not prohibit Israeli Arabs from competing in land-sale tenders conducted by the state, including for land owned by the JNF.
THE JNF is more than a century old. It was established by the Fifth Zionist Congress in 1901 as the national movement's instrument for collecting money from Jewish communities all over the world to "redeem," that is, to purchase, Palestinian land as a first step towards Jewish settlement and, ultimately, Jewish national sovereignty. Over the following decades, the blue-and-white JNF tin collection boxes became one of the mythic symbols of the national revival of the Jewish people in Eretz Israel.
At first, the JNF was only one of many Jewish groups and individuals that purchased land from mainly Arab landowners. However, after the Arab riots erupted in 1936, it became too dangerous for the others to continue.
Nevertheless, at the end of the War of Independence in 1949, the JNF faced its first existential threat. At that time, it owned about 1.25 million dunams of land. Meanwhile, the fledgling state had taken over 3.5 million dunams "abandoned" by Arabs who were either absentee owners, or had fled or were expelled from Israel during the war.
Now that there was a Jewish state and a Jewish government, prime minister David Ben-Gurion considered disbanding the JNF. This is what he had done to the Palmah and Etzel organizations, even while war raged, and assimilated them into the state army.
However, Ben-Gurion changed his mind out of fear that the United Nations might order the state to return the abandoned lands to Arab refugees. Instead, the government sold 1.25 million dunams to the JNF.
Today, the organization owns about 11.5 percent of all the land in Israel, most of it in the developed areas of the country, including the Jerusalem Corridor, the southern coastal plain, the southern Carmel area and Upper Galilee.
In 1961, the state and the JNF signed a covenant whereby the JNF would be responsible for taking care of all the forest land owned by it and the ILA, while the ILA would administer and market JNF lands.
According to one official who spoke on condition of anonymity, between the signing of the accord and 2004, JNF lands were leased to Arabs as well as to Jews. However, when the ILA leased a parcel of land belonging to the JNF, it carried out a technical procedure by exchanging it for a parcel of land owned by the state. In other words, when an Arab bought an apartment located on JNF land, the ownership of the land was switched on paper to the ILA and another, equivalent, apartment owned by a Jew and situated on ILA land was "transferred" to the JNF. [It is worth pointing out here that the owners of the land, i.e. the ILA and the JNF, do not sell land but only lease it and legally remain its owners.]
This arrangement ended in 2004, when it was determined that the paper-transfer of land ownership between the ILA and the JNF was illegal, since the homeowners were not informed of the switch. Instead of looking for a solution to the technical problem that had arisen, the ILA published a tender that same year for JNF land, and declared that Arabs could not bid for it.
This development occurred only four years after the Ka'adan ruling.
The petitions against the restrictive tenders and the JNF's overall policy of holding land for the Jewish people only, were swift in coming.
To add to the picture, it should be noted that up until 2004, there were few instances of Arabs purchasing land owned by the JNF, which was primarily located in Jewish communities. The problem has become far more acute in recent years, as the population of Israel grows and the Arabs in particular - who live in increasingly congested towns, many of which lack zoning plans - begin to seek homes elsewhere, including in Jewish communities such as Carmiel, Katzir or villages in the Misgav Regional Council.
DURING MONDAY'S High Court hearing, the ILA and the JNF announced that they had reached an agreement which was essentially a return to the pre-2004 state of affairs, though apparently on a much larger scale.
According to the basic outlines of the agreement, which still need to be filled in, the two organizations will carry out a large-scale exchange of land. The ILA will take over ownership of JNF land in areas of the country that are currently being developed. In return, it will give the JNF lands in remote parts of the country, primarily the Negev, which are not slated for development in the foreseeable future.
Both the state - including Mazuz - and the JNF are pleased with the plan.
The state will be able to lease lands without discriminating against the Arabs, while the JNF will be able to continue in its role as "landowner of the Jewish people."
Indeed, one official said that the arrangement would enable the JNF to return to its original task of safeguarding land that would eventually be used for Jewish settlement. "What is sacred is not land per se, but the principle of safeguarding a reservoir of land for the Jewish people," said the official.
But many Arabs, including two of the petitioners, Adalah and the Arab Center for Alternative Planning, are unhappy with the solution, because it does not address the principle of discrimination that, in their opinion, is manifest in the very existence of the JNF.
In his response to the High Court in January 2005, the attorney-general referred to the potential land exchange program between the ILA and the JNF together with his declaration that the ILA could not discriminate against Arabs when it leased JNF land.
MK Hanna Swaid (Hadash), the head of the Arab Center for Alternative Planning, told the daily Ha'aretz at the time, "The problem is the principle of the thing, and here I think we took a step backwards rather than a step foreword. The state says that the JNF is correct in discriminating against Arabs and therefore compensates it [by giving it other land.] In doing so, the state is covering up the discriminatory practices of the JNF."
Azmi Bishara, still an MK for the Balad party at the time, told Ha'aretz, "The attorney-general, the JNF representatives and the ILA got together to decide how to continue the racist policy in language that is politically correct from a political and legal point of view."
During the High Court hearing, Adalah attorney Hassan Jabarin made it clear that he would oppose the final agreement between the ILA and JNF when it is presented it to the court as the state's response to the petitions.
MANY JEWS believe that the fight against the JNF is part of the Arab leadership's allegedly larger battle against the definition of Israel as a "Jewish and democratic state."
"It started with Ka'adan and continues with the JNF," said one observer. "Next in line is the Law of Return."
As far as the JNF is concerned, while it is ready for a practical compromise, it too is unwilling to yield on the principle of the matter - that is, its right to preserve land in Israel for the Jewish people.
In his response to the petitions, JNF attorney Alex Hartman wrote, "The JNF purchased all of the land in its possession from previous owners by means of funds donated incrementally by Jews from all over the world for the purpose of purchasing land in Eretz Israel to be held and developed on behalf of the Jewish people. JNF trusteeship is not and cannot be given or granted to the entire Israeli public. JNF trusteeship is preserved solely for the Jewish people on whose behalf it was founded and acts."
In another section, Hartman wrote, "The petitioners claim that the principle of equality should be withdrawn when it comes to JNF lands, due to the fundamental constitutional foundation of the state as a Jewish state, the meaning given to it by Israel's Knesset and this Honorable Court."