Since most of the land in Judea and Samaria (the “West Bank”) has not been registered, proving ownership is often difficult.
By MOSHE DANNTHE WEST BANK town of Efrat, with Bethlehem in the background.(photo credit: REUTERS)
In striking down the “Regulation Law,” which legalized buildings which had been built on “disputed land,” Israel’s High Court of Justice accepted the view that the land in question was “privately” owned. The critical question is, however, what constitutes privately owned land? Are the claims valid, who makes this decision, and on what basis? The High Court did not explain.If it is true that Jews are stealing land, this violates Jewish and Israeli laws and values and justifies calls for boycotts, sanctions and even the elimination of the state, since it applies to areas acquired after 1948 as well as in 1967. A devastating moral and legal indictment, it undermines Israel’s moral foundation, its raison d’être.Since most of the land in Judea and Samaria (the “West Bank”) has not been registered, proving ownership is often difficult. Based on titles and deeds, land that is registered becomes private property, but what if there are no documents to prove ownership?In many cases, land that Arabs claim as their private property was not purchased; it was State-owned land that was either given away during the Ottoman, British and Jordanian occupations, or was encroached upon and developed. Arab claims based on gifts and alleged agricultural uses are not property deeds. And what about claims of absentee owners living in enemy states whose land is under the control of the Custodian of Enemy Property? How then did this confusion about “private Palestinian land” come about?Using ownerless, uninhabited land is a universally recognized method for claiming it, unless contested. Until the modern period, land registration especially in sparsely populated areas, like the Middle East, Africa and North Africa was not widely practiced. With the rise of nation-states and the development of bureaucracies this changed.According to international agreements such as the San Remo Accord (1920), League of Nations (1922), the Mandate for Palestine was intended as a “Jewish National Home.” This anchors the rights of the Jewish people and Israeli sovereignty in law. It has never been superseded and remains in force, despite Arab objections.During the British Mandate, land surveys were made in Palestine, primarily to collect taxes and create an orderly system of land ownership and transfer. According to Dr. Dov Gavish, who wrote the only extensive study of this topic, Survey of Palestine, 1920-1948 (2005), maps were drawn based on where inhabitants were found and on verbal claims, usually by local mukhtars (chieftains or village dignitaries) and sheikhs, not on documents or land registration. Based on aerial photos and evidence of cultivation, villages were arbitrarily divided into large blocks of 600 dunams, which were then sub-divided among local peasants. Highly inaccurate, these fiscal maps nevertheless became the basis for taxation. They did not and do not reflect legal ownership.As Gavish notes, the registration process lacked legal procedures for determining proper (actual) ownership, the investigators often had little professional training, surveyors who drew boundaries relied on inaccurate methods (such as vague geographical markers), and were hampered by constant Arab violence.Maps and registration held by Turkish and Jordanian governments are not accessible, and many maps held by the British Mandatory government were “accidentally” destroyed. The Israeli Civil (Military) Administration also has aerial maps which are used to determine land use, and surveys which are not necessarily reliable or accurate documentations of private ownership.These questionable maps and documents, however, are used to verify Arab claims and the basis of charging Jews with stealing “private Palestinian land.” Although these lands could have been registered, most were not. Moreover, land which was not used, or not passed on by inheritance reverts to the original owner, the State, by law.Most of what is called “private Palestinian land” is claimed – and some registered – based on policies that legitimized squatting after the fact and by counting land as “owned” when in fact it had been leased, or simply used.During the Mandatory period, most of the land that was registered by individuals was called “Miri.” Leased, not privately owned, “Miri” land remained property of the State. Although land that was not used for ten years should have reverted to the State, large areas of such unused land remained under local Arab control.Another category of ownerless land, called “waste land” (“Mewat”), is known throughout the Middle East and recognized in international law. Dr. Ya’akov Meron’s authoritative article, “Waste Land (Mewat) in Judea and Samaria,” (Boston College Int’l & Comparative Law Review, 1981) notes that this land was not included in State land and could be claimed by whoever used it, Jews or Arabs.Because land on which most settlements are built is not agriculturally useful, Arabs did not claim ownership until recently, when anti-settlement NGOs asserted that these lands belonged to Arabs, individually and/or collectively, based on hearsay, maps and documents that are grossly inaccurate and often false.In many cases, land claims are based on the “mukhtar protocol,” where mukhtars decided land claims. As legal NGO Regavim’s Naomi Kahn wrote: “In practice, the “mukhtar protocol” spawned a massive industry of wholesale land giveaways and illegal land deals, forgery of documents and deeds, under-the-table payments, false testimony, and more. And it has created devastating results for the rightful owners of property, Arabs and Jews alike.”The High Court’s opinion, therefore, that land is privately owned is not necessarily true unless essential documents have been examined and authenticated by lower courts. This was not done and it has led to much confusion about what constitutes “private Palestinian land.”Accusing Israeli Jews of “stealing private Palestinian land,” is a powerful weapon used to demonize and delegitimize Israel and the settlement movement. Commonly accepted and taken for granted, these charges are used to justify Arab terrorism (“resistance”) and subvert Israel’s moral right to exist.Such allegations, however, are inaccurate and fuel anti-Israel propaganda. Sadly, rather than clarify the issue, the High Court has confused it and sided with Israel’s enemies.The author is a PhD historian and journalist in Israel.
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