- The Legal Status of
Palestinian Land
Israel adopted a policy of conquest of
Palestinian land, not only by military means but also by a series of
fictitious pseudo-legal regulations intended to obscure the outright
plunder of the land.
In March 1948, at the initiation of the Israeli military operations,
the Haganah (the forerunner of Israeli Army, IDF) created a
“Committee for Arab Properties in Villages”. A similar committee was
established after the Israeli occupation of the Palestinian cities
of Haifa, Jaffa, Safad and Tiberias in April and May.
In November 1948, Israel completed the occupation of the most
fertile and most populated areas of Palestine. In December, the same
month in which the famous UN resolution 194 calling for the return
of the refugees and the Universal Declaration of Human Rights were
passed, Israel responded by issuing the “Emergency Regulations
Relative to Property of Absentees”. Soon thereafter the Knesset
passed the “Law of the Acquisition of Absentees Property”,
(Absentees Property Law, 4 L. ST. Israel 68, 1949-1950). This law
effectively classified all the refugees as “absent” and transferred
the control of their property to a Custodian. The Custodian has the
discretion to determine whether any Arab Palestinian is “absent” and
confiscate his property. This arbitrary definition was applied, not
only to those who were expelled beyond the Armistice Line, but was
extended to Palestinians who remained in Israel. Those who remained
but were not in the specified place on a particular date, for
example, on a visit to the next village or had been away for a day,
were declared “absent”. Since these became Israeli citizens, they
were dubbed as “present absentees”, an ironical but accurate
description of the Israeli fictitious legislation.
In 1950, Israel extended this appellation to all Wakf (Islamic
Endowment), which was instated centuries ago, with the exception of
strictly active religious shrines. Protestations that the owner –
God – is “present” were to no avail. All mosques and cemeteries of
depopulated villages have not been allowed to be used or repaired
until this day. Many have been covered with ‘forests’, as was the
case with demolished villages, to camouflage their remains.
Christian and other religious bodies were left untouched.
Israel reactivated the “Defense (Emergency) Regulations of 1945”,
created by the British Mandate in order to quell Palestinian revolt
against British policies. Israel applied these regulations to areas
in Israel in which Palestinians remained, through orders by an
appointed Military Governor for each area. The regulations were not
applied to Jews who lived in the same areas. Under these
regulations, the Military Governor is empowered to declare that any
locality is “closed”; no entry or exit from this locality is
allowed.
In January 1949, the Knesset passed the “Emergency Regulations for
the Exploitation of Uncultivated Lands” (Cultivation of Waste Lands
Ordinance). The Minister of Agriculture is empowered to take
possession of any land he considers “uncultivated”.
Further, Israel issued the “Emergency Regulations (Security Zones)
of 1949” which empowered the Minister of Defence to declare most
areas a “security zone”, with the power to deny entry or exit to any
person or to remove him from this zone.
A further law, the “Emergency Land Requisition Law of 1949”
empowered any “competent authority” to acquire any land if it is
regarded as “necessary for the defence of the state, public
security, essential services, absorption of immigrants or
rehabilitation of ex-soldiers”.
Cases have been cited for a land coveted by the government, although
the owner was legally present and cultivating his land. The land
then would be declared “closed” and no person was allowed to remain
there. After a period of 3 years, the government acquires the land
on the pretext it was “Uncultivated”.
This sweeping acquisition of land through thinly-disguised land
robbery legislation would not have been possible had it not been for
the mass expulsion of refugees and the vast amount of land (92% of
Israel) ready for grabs. It would not have also been possible if the
country was truly democratic and the rights of the Palestinian
minority were protected against racial discrimination.
To establish an intermediary between the Custodian of Absentee
Property and the ultimate beneficiary, Israel created “the
Development Authority (Transfer of Property) Law, 1950” to which
Palestinian land was transferred. The Authority was empowered to
sell, buy, lease, exchange, repair, build, develop or cultivate
(Palestinian) property, provided that the beneficiary is a Jew or a
Jewish entity. This excludes non-Jewish Israeli citizens also.
To validate any prior illegal expropriations, the Knesset passed the
“Land Acquisition (Validation of Acts and Compensation) Law of 1953.
This law permitted the Minister of Finance to vest ownership of
previously and newly expropriated land in the Development Authority.
The law also allowed for compensation to any (i.e. Palestinian)
owner at unfavourable terms. Compensation would be paid on the
assessed value of the property as on January 1, 1950 in Israeli
pounds of that date, + 3% p.a. thereafter, minus all costs of the
property “maintenance”. The values on the official list were very
low and the Israeli pound was devalued many times. The exercise is
highly theoretical. On a matter of principle, practically no
‘present’ Palestinians took the offer. Other laws of the same nature
have been passed.
Following the Israeli occupation of Palestine, a dispute arose
between JNF and the state of Israel which lasted from 1949 to 1961.
JNF proposed that the acquired Palestinian land should be treated as
other JNF lands, “for the Jewish people everywhere, in perpetuity”.
The state considered that this land “of the Arabs who fled ” belongs
to it in view of “the heroic battles of the Haganah”.
JNF has the largest share of Jewish-owned land, which did not exceed
936,000 dunum (dunum = 1000 m2) in 1948. To appease JNF, Ben
Gurion’s government ‘sold’ JNF 1,101,842 d. in January 1949, during
1948 war, before the first Armistice Agreement with Egypt was
signed. A further 1,271,734 d. were ‘sold’ in October 1950. The last
two ‘sales’ of Palestinian land, for a consideration of $1,
increased JNF total holdings to some 3,400,000 d.
The conflict between JNF and the state was resolved by signing an
agreement in 1961. It was agreed that JNF land and the acquired
‘state land’ to be managed by a government body, Israel Lands
Administration (ILA), under the same rules adopted by JNF since
1906, i.e., denial of its use, lease, development or access to any
non-Jew including Israeli citizens.
Since there is no constitution in Israel, a number of Basic Laws
were enacted, including Basic Law: Israel-Lands (1960) which
restricts its use to Jews only.
ILA report of 1962 gave the following figures for lands under ILA
management:
State and Development Authority
15,205,000 d.
JNF (pre-mandate + “purchase” from the state)
3,570,000 d.
Land under ILA*
18,775,000 d. (92.6%)
Private land (Arab and
Jewish) 1,480,000 d.
20,255,000 d. (100%)
(* According to the Government Press Office on May 22, 1997 this
figure is 19,028,000 d.)
Thus ILA manages 92.6% of the land in Israel.
How much of this is Palestinian?
In addition to the confiscated property of the refugees, Israel
confiscated 76% of the land of the remaining villages in Israel.
Therefore, confiscated Palestinian land is:
From refugees’ land
17,178,000 d.
From remaining citizens’ land 1,113,000
d. (76% of 1,465,000)
18,291,000 d. or 90% of Israel.
The United Nations Conciliation Commission on Palestine (UNCCP),
which was created by UN resolution 194, compiled the Palestinian
land holding which came under Israel in 1948. A team headed by Frank
E. Jarvis completed the task in April 1964 (A/AC.25/W/84 of 28 April
1964) based on British Mandate government Land Registers and in
consultation with the relevant governments. According to Jarvis, the
area of Palestinian land thus compiled is 5,194,091 d. But Jarvis
noted that he excluded 10 blocks in Ramle and 10 blocks in Jerusalem
districts and the whole district of Beer Sheba. Adding the area of
the latter (12,577,000) and some 500,000 d. for the missing blocks,
the total will be 18,271,091 d. which is similar to the above
figure.
Estimates for the land now remaining in the hands of the Palestinian
citizens of Israel vary between 350,000 – 600,000 d. This land is
subject to much restrictions and discriminatory practices. Thus one
million Palestinians control some 2 - 3% of the land, while five
million Jews control 97% of Israel, or 7 times the Palestinians’
share, although this land is predominantly Palestinian.
ILA leased the Palestinian land to the Kibbutz, Moshav and other
Cooperatives for 49 years. Other lands are reserved by the state for
military purposes, natural reserves and future expansion to
accommodate new immigrants.
The Palestinian land, now called State Land, is leased or restricted
exclusively for the use of Jewish individuals or bodies, with some
negligible exceptions. Professor Uzzi Ornan of the Hebrew University
noted that “a Jew has right to receive land or apartment on land
controlled by ILA, but a non-Jew does not enjoy this right”.
The (Jewish) lessee is not allowed to “make non-conforming use of
that land save under a written permit”, in accordance with the
especially enacted law: Agricultural Settlement (Restrictions on Use
of Agricultural Land and of Water). This is to prevent a Jewish
lessee from sub-leasing, or allowing the use of this land to any
non-Jew, including Palestinian citizens of Israel. As this applies
to 92% of the land held by Israel, the restriction imposed on the
Palestinians in Israel becomes quite evident.
These exclusive and racist laws have been censured by many
international and human rights bodies.
It is not quite clear how much land was leased to each Jewish group.
But it is clear that the Kibbutzim established before 1948 were the
first to grab the best land, which typically belonged to the nearby
depopulated Arab village. The total leased (termed ‘liberated’) land
is about 4,500,000 d. which is comparable to Jarvis figures and is
roughly equal to the Palestinian land excluding Beer Sheba. Some
reports indicate that 2,800,000 d. was leased to the Kibbutzim and
more than that area to the Moshav and Cooperatives. Most of the
Palestinian refugees’ land is situated in the Northern and Southern
Districts of Israel. There are 250 Kibbutzim (population 56,500),
217 Moshavim (population 38,800) in the Northern District, and 65
Kibbutzim (population 23,800), 112 Moshavim (population 41,400) in
the Southern District – 1998 figures. This shows how vast is the
land leased to so few. The land leased to 160,000 Jewish settlers is
the property of 5,250,000 refugees. In the words of Meron Benvenisti,
“the land of dispossessed Arabs became the property of the Jewish
people (everywhere and in perpetuity) according to JNF rules”.
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