The recent furor surrounding the government’s decision to declare nearly 1,000 acres at Gvaot in Gush Etzion “State Land” is a classic example of the ignorance of history and law that governs most discussions of Israeli actions beyond the internationally hallowed “Green Line.” Media headlines around the world screamed about “annexation” and “land grab,” the Palestinian Authority declared it a “crime” and foreign ministries around the world have demanded the reversal of the decision. However, few articles, press releases or communiques mention the crux of the matter; the legal and historical status of the land in question.
For many, if not most, around the world, every inch of land beyond the 1949 armistice lines is automatically Palestinian; a display of unfamiliarity with history and international law.
To truly understand the status of this territory we have to first differentiate between the personal and the national.
Of course there is land privately owned by Palestinians in Judea and Samaria, what many call the “West Bank” in seeming deference to the Jordanian occupation, which invented the term as juxtaposition to its eastern bank. These areas, like privately owned territory anywhere in the world, cannot be touched unless there is very pressing reason for a government or sovereign power to do so. These areas, according to Ottoman and British records, constitute no more than a few percent of the total area, meaning the vast majority is not privately owned.
However, to contend that these territories are “Palestinian” on a national level is problematic. To claim an area belongs to a particular nation requires the territory to have belonged to that people, where they held some sort of sovereignty that was broadly recognized.
All of these criteria have been met historically by the Jewish people, and none by the Palestinians.
In fact, the Jewish people were provided with national rights in these territories not just by dint of history and past sovereignty, but also by residual legal rights contained in the League of Nations Mandate, which were never canceled and are preserved by the UN Charter, under Article 80 – the famous “Palestine Clause,” that was drafted, in part, to guarantee continuity with respect to Jewish rights from the League of Nations.
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For the past almost 2,000 years, since the destruction of Jewish sovereignty and expulsion of most of its indigenous people, it remained an occupied and colonized outpost in the territory of many global and regional empires.
The Ottomans were the most recent to officially apportion the territory, in what they referred to as Ottoman Syria, which today incorporates modern-day Israel, Syria, Jordan and stretching into Iraq. Before The Ottoman Land Code of 1858, land had largely been owned or passed on by word of mouth, custom or tradition. Under the Ottomans of the 19th century, land was apportioned into three main categories: Mulk, Miri and Mawat.
Mulk was the only territory that was privately owned in the common sense of the term, and as stated before, was only a minimal part of the whole territory, much of it owned by Jews, who were given the right to own land under reforms.
Miri was land owned by the sovereign, and individuals could purchase a deed to cultivate this land and pay a tithe to the government. Ownership could be transferred only with the approval of the state. Miri rights could be transferred to heirs, and the land could be sub-let to tenants. In other words, a similar arrangement to a tenant in an apartment or house as having rights in the property, but not to the property.
Finally, Mawat was state or unclaimed land, not owned by private individuals nor largely cultivated. These areas made up almost two-thirds of all territory.
The area recently declared “State Land” by the Israeli government, a process which has been under an intensive ongoing investigation for many years, is Mawat land. In other words, it has no private status and is not privately owned.
Many claims to the territory suddenly arose during the course of the investigation, but all were proven to be unfounded on the basis of land laws.
Interestingly, it should be clearly understood by those who deem Judea and Samaria “occupied territory” that according to international law the occupying power must use the pre-existing land laws as a basis for claims, exactly as Israel has done in this case, even though Israel’s official position is that it does not see itself de jure as an occupying power in the legal sense of the term.
None of these facts are even alluded to in the many reports surrounding the government’s actions in Gvaot. This is deeply unjust and a semblance of the relevant background, history and facts would provide the necessary context for what has been converted into an international incident where none should exist.
I frequently take foreign visitors and officials on a tour of Efrat and Gush Etzion and am amazed at the well-meaning ignorance and preconceived positions that many, even friends of Israel, hold about the status of this area and wider Judea and Samaria. Usually, however, by the end of the tour many of these positions have been debunked and those that I speak with are astonished that there is even another side to the story, having been assured that the pro-Judea and Samaria position is based solely on the Bible.
I welcome and even challenge anyone and everyone to come and see the reality for themselves and learn the history and context of the region, if only for the sake of intellectual honesty. No one ever lost out through intellectual curiosity, and I am certain that we can lessen the next furor and international incident if a greater number of people can be made more familiar with the facts of history.The writer is mayor of Efrat, which is situated in the Gush Etzion, and a former partner in a leading law firm.
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