Land and property laws in Israel provides the
legal framework which governs land and property issues in Israel. Israel came into
existence on 14 May 1948 with its Declaration of Independence. The Provisional State Council's first
legislative act was the "Law and Administration Ordinance of
1948", a reception
statute. The act adopted all existing laws "with such
modifications as may result from establishment of the State or its
authorities."[1] In respect
of land law matters, Ottoman laws, as had
been modified by British land law during the Mandate period,
continued to apply. Over time, some of these laws have been amended or
replaced.
Overview
In 1945, of the 26.4 million dunams (26,400 km²) of land
in Mandatory
Palestine, 12.8 million was owned by Arabs which included Jordan,
1.5 million by Jews which excluded Jordan, 1.5 million was public land and
10.6 million constituted the desertic Beersheba district (Negev). Of the 9.2 million dunams of land
that was arable, 7.8 million dunams was owned by Arabs which included
Jordan, 1.2 million by Jews and 0.2 million was public land.[2][3] By 1949, about
600,000 Palestinians had fled from their lands and villages. Israel was now in
control of some 20.5 million dunams (approx. 20,500 km²) or
78% of lands in what had been Mandatory Palestine: 8% (approx.
1,650 km²) were privately controlled by Jews, 6% (approx.
1,300 km²) by Arabs, with the remaining 86% being public land.[4] Land laws
were passed to legalize changes to land ownership.[5]
As at 2007, the Israel
Land Administration (ILA), which was established in 1960,
manages 93% of Israel's land comprising
19,508 km² under the following laws and land policy. The remaining 7%
of land is either privately owned or under the protection of religious
authorities.
·
Basic Law: Israel lands (1960)
states that all the lands owned by the state of Israel will remain in
state ownership, and will not be sold or given to anyone.
·
Israel Lands Law (1960) details several exceptions to
the basic law.
·
Israel Land Administration Law (1960) describes the
details of establishing and operating the Israel Land Administration.[6]
·
Covenant between the State of Israel and the World
Zionist Organization (establishing the Jewish National Fund) (1960).[7]
Use of land in Israel usually means
leasing rights from the ILA for a period of 49 or 98 years. Under Israeli
law, the ILA cannot lease land to foreign nationals, which includes Arab-Palestinian
residents of Jerusalem who have identity
cards but are not citizens of Israel. In practice,
foreigners may be allowed to lease if they show that they would qualify as
Jewish under the Law of
Return.[9]
History
Ottoman
era
The Ottoman Empire embarked on a
systematic land reform program in the second half of the 19th century. Two
of the new laws were the 1858 land registration law and the 1873 land
emancipation act. Prior to 1858, land in Palestine, then a
part of the Ottoman Empire since 1516, was
cultivated or occupied mainly by peasants as sharecroppers. Land ownership
was regulated by people living on the land according to customs and
traditions. Usually, land was communally owned by village residents, though
land could be owned by individuals or families.[10]
The Ottoman Land Code of 1858 required
land owners to register ownership. The reasons behind the law were twofold:
(1) to increase tax revenue, and (2) to enable the government exercise
greater state control over the area. However, many peasants did not
register their claims, for several reasons:[10] for example,
land owners were subject to military service in the Ottoman Army, there was
general opposition to official regulations from the Ottoman Empire, and to
evade payment of taxes and registration fees to the Ottoman Empire.
The registration process itself was open to falsification
and manipulation. Land collectively owned by village residents ended up
being registered to one villager, and merchants and local Ottoman
administrators took the opportunity to register large areas of land in
their own name. The result was that land became registered to people who had
never lived on the land; while the peasants, having lived there for
generations, retained possession, but became tenants of absentee owners.[10]
The 1873 land emancipation act gave Jews the right to
own land in Palestine under their own
name. This 1873 secular land reform/civil rights law was popularly confused
with a religious law and it was held as a "humiliation to Islam that
Jews should own a part of the Muslim Ummah". The confusion between
religious and secular law made the laws (ended in 1873) against Jewish
ownership of land 'religious laws'.
Over the course of the next decades land became increasingly
concentrated on fewer hands; the peasants continued to work on the land,
giving landlords a share of the harvest. This led to both an increased
level of Arab-Palestinian
nationalism as well as civil unrest.[10][11] At the same
time, the area witnessed an increased flow of Jewish immigrants who did not
restrict themselves to the cities where their concentration offered some
protection from persecution. These Jews came back to their ancestral land hoping
to create a new future in what they regarded as the homeland of their
ancestors. Organizations created to aid Jewish settlement in Palestine bought land from
Arab and absentee landowners.[10][11]
British
Mandate
World War I and the dissolution of the Ottoman Empire led to
British control over the area in 1917, followed by the creation of
the Mandate
for Palestine under the 1920 San Remo Conference and
implemented by the League of Nations in
1922, which remained in effect until the establishment of Israel in 1948.
During this period several new land laws were introduced, including The
Land Transfer Ordinance of 1920, The Correction of Land
Registers Ordinance of 1926 and The Land Settlement
Ordinance of 1928, which the British questionable right to enact.[12]
It was the policy of the Zionist Organization to
encourage Jewish acquisition of land in Palestine for Jewish
settlement. For that purpose, the Fifth Zionist
Congress (1901) set up the JNF to buy suitable land. The
rules of the JNF forbade it from selling the land it acquired, but to lease
it. Land owned by the JNF was leased to kibbutzim and
other Jewish settlements and communities on long-term leases. At the end of
1935, JNF held 89,500 acres (362 km²) of land housing 108 Jewish
communities. In 1939, 10% of the Jewish population of the British Mandate
of Palestine lived on JNF land. JNF holdings by the end of the British
Mandate period amounted to 936 km².[13] By 1948, the
JNF owned 54% of the land held by Jews in the region,[14] or a bit
less than 4% of the land in Palestine (excluding Transjordan).[15]
From 1936, the British administration (with questionable
authority to enact such regulations) introduced a series of land
regulations: The Land Transfer Regulations of 1940 divided the country into
zones, with different restrictions on land sales in each. As summarized by
the Anglo-American Committee of Inquiry in
1946,
In Zone A, consisting of about 63 percent of the country
including the stony hills, land transfers save to a Arab Palestinian were
in general forbidden. In Zone B. consisting of about 32 percent of the country,
transfers from an Arab Palestinian save to another Arab Palestinian were
severely restricted at the discretion of the High Commissioner. In the
remainder of Palestine, consisting of
about five percent of the country-which, however, includes the most fertile
areas- land sales remained unrestricted.[16]
The Inquiry recommended the repeal of the Regulations,
without effect.
State
of Israel
After the Israel's declaration of
independence on 14 May 1948, state lands of
the Mandate reverted to the State of Israel. In addition, property left by
Arab refugees passed into the control of the new Israeli government.[17] The newly
formed Israeli ministries, committees and departments took over functions
performed earlier by ‘National Institutions’. One of the first steps
adopted by the new state was the reactivation of the Defense
[Emergency] Regulations adopted earlier by the British in 1939
(and later repealed). Since British regulations had applied to the whole
country, the Government of Israel passed the Law and Administration
Ordinance [Amendment] Law [1948] to reverse the British repeal and
reinstate these Emergency Regulations.[5] Some of this
land was sold by the government to the JNF, which had developed expertise
in reclaiming and developing waste and barren lands and making them
productive.
In 1960, under Basic Law:
Israel Lands, JNF-owned land and government-owned land were together
defined as "Israel lands," and
the principle was laid down that such land would be leased rather than
sold. The JNF retained ownership of its land, but administrative
responsibility for the JNF land and government-owned land, passed to a
newly created agency called the Israel
Land Administration or ILA. The lease principle is
hardly new to the area however as it was practiced for centuries under
the Ottoman tapu system.
To this day, the Land Registration Office
is commonly known in Israel as the tabu, the Arabic pronunciation
of the Turkish tapu.[18]
Emergency laws and regulations
Proclamation,
5708-1948
The proclamation repealed the White Paper of 1939 and
sections 13 and 15 of the Immigration Ordinance of 1941.
It also repealed the Land Transfer Regulations of
1940 retroactively to 18
May 1939, invalidating transactions conducted since then.[19]
Law
and Administration Ordinance, 5708-1948
The Law and Administration
Ordinance, 5708-1948 at the Wayback Machine (archived
October 28, 2009) defined the
competences and composition of the Provisional Government. The law repealed
sections 13 to 15 of the 1941 Immigration Ordinance and
regulations 102 to 107C of the 1945 Defense (Emergency) Regulations,
in order to allow Jews who entered the country illegally under Mandate to
remain as legal immigrants. The 1940 Land Transfers Regulations were
repealed retroactively from 18 May 1939, to allow
unregistered transfers to be filed.[19] In 1967, the
law was used for de facto annexation of East Jerusalem.[20]
Area
of Jurisdiction and Powers Ordinance, 5708-1948
After the 1948
Arab–Israeli War, the Area of Jurisdiction and Powers
Ordinance, 5708-1948, extended Israeli land laws to "any part of
Palestine which the Minister of Defense has defined by proclamation as
being held by the Defense Army of Israel"[21] Article 3 of
the law made it retroactive and effective from 15 May 1948, the day after
the declaration of the establishment of the State of Israel.
Abandoned
Areas Ordinance, 5708-1948
The Abandoned Areas
Ordinance, 5708-1948 at
the Wayback
Machine (archived October 28, 2009) (published 30 June
1948, effective retroactively from 16 May 1948) defined an "abandoned
area" as "any area or place conquered by or surrendered to armed
forces or deserted by all or part of its inhabitants, and which has been
declared by order to be an abandoned area". The Ordinance also
provided for regulating "the expropriation and confiscation of movable
and immovable property, within any abandoned area". The government was
authorized to determine what would be done with this property.[21]
Defense
(Emergency) Regulations
Article 125
Article 125 states:
A Military Commander may by order declare any area or place
to be a closed area for the purposes of these regulations. Any person who,
during any period in which any such order is in force in relation to any
area or place, enters or leaves that area or place without a permit in
writing issued by or on behalf of the Military Commander shall be guilty of
an offence against these Regulations.
According to Kirshbaum, the law was used to exclude a land
owner from his own land so that it could be expropriated under the Land
Acquisition (Validation of Acts and Compensation) Law (1953).[22]
Emergency
Regulations (Security Zones) Law, 5709-1949
According to the Journal of Palestine Studies, the law
designated an area as "security zone" which meant that no one
could permanently live in, enter, or be in said zone.[23] According to
COHRE and BADIL (p. 40), "this measure was used extensively in
various parts of the country, including areas in the Galilee, near the Gaza Strip
and close to the borders. Lands so acquired would often be sold to the JNF.
These regulations remained in place until 1972."
Emergency
Regulations (Cultivation of Waste [Uncultivated] Lands) Law, 5709-1949
According to COHRE and BADIL (p. 40) this law was
originally enacted in 1948 and amended in 1951 as the Emergency
Regulations (Cultivation of Waste Lands) Law, 5711-1951. This law
authorizes the Ministry of Agriculture to declare lands as ‘waste’ lands
(Article 2) and to take control over ‘uncultivated’ lands (Article 4).
Article 2 states:
The Minister of Agriculture may warn the owner of waste land
to cultivate the land or to ensure-that it is cultivated.
Article 4 reads:
If the owner of the waste land does not apply to the
Minister of Agriculture as specified in regulation 3, or if the Minister of
Agriculture is not satisfied that the owner of the land has begun or is
about to begin or will continue to cultivate the land, the Minister of
Agriculture may assume control of the land in order to ensure its
cultivation.
COHRE and BADIL (p. 40) consider that "this law
operated in conjunction with other laws including those declaring ‘security
areas’. Once people (Arabs) were barred from their lands, these could be
defined as ‘uncultivated’ and seized".
Emergency Land Requisition (Regulation) Law,
5710-1949
This law repeals the earlier Emergency Regulations
(Requisition of Property) Law, 5709-1948. The law authorizes the
requisition of land when (Article 3):
...the making of the order is necessary for the defense of
the state, public security, the maintenance of essential supplies or
essential public services, the absorption of immigrants or the
rehabilitation of ex-soldiers or war invalids.
The law includes clauses concerning the requisition of
houses (chapter three), and states (Article 22b) that:
A competent authority may use force to the extent required
for the carrying into effect of an order made by a competent authority or a
decision given by an appeal committee under this Law.
According to COHRE and BADIL (p. 41), "the law
retroactively legalized land and housing requisitions that were carried out
under existing emergency regulations. The law was amended in 1952 and 1953.
A 1955 amendment, Land Requisition Regulation (Temporary Provision)
Law, 5715- 1955, allows the Government to retain property seized under
the law for longer than the three years originally specified. Along with a
later (1957) amendment, the law also specified that any property held after
1956 would be determined to have been acquired on the basis of the British Land (Acquisition for
Public Purposes) Ordinance of 1943.
The 'Absentees Property Law'
‘Absentees’ property’ laws were several laws which were
first introduced as emergency ordinances issued by the Jewish leadership
but which after the war were incorporated into the laws of Israel. As
examples of the first type of laws are the Emergency Regulations
(Absentees’ Property) Law, 5709-1948 (December) which according to
article 37 of the Absentees Property Law, 5710-1950 was
replaced by the latter;[24] the Emergency
Regulations (Requisition of Property) Law, 5709-1949, and other related
laws.[25]
According to COHRE and BADIL (p. 41), unlike other laws
that were designed to establish Israel’s legal control over lands, this
body of law focused on formulating a legal definition for the people
(mostly Arabs) who had left or fled from these lands. Specific laws in this
category include:
·
The Absentees’ Property Law, 5710- 1950
·
The Land Acquisition (Validation of Acts and
Compensation) Law, 5713-1953
·
Absentees’ Property (Eviction) Law, 5718-1958
·
Absentees’ Property (Amendment No.3) (Release and Use
of Endowment Property) Law, 5725-1965
·
Absentees’ Property (Amendment No. 4) (Release and Use
of Property of Evangelical Episcopal Church) Law, 5727-1967
·
Absentees’ Property (Compensation) Law, 5733-1973
As a result, two million dunams were confiscated and given to
the custodian, who later transferred the land to the development authority.
This law created the novel citizenship category of "present absentees"
(nifkadim nohahim), persons present at the time but considered absent for
the purpose of the law. These Israeli Arabs enjoyed all civil
rights-including the right to vote in the Knesset elections-except one: the
right to use and dispose of their property. About 30,000-35,000 Arab-Palestinians
became "present absentees".[26]
According to Simha Flapan,[27] "a
detailed account of exactly how abandoned Arab property assisted in the
absorption of the new immigrants was prepared by Joseph Schechtman":
It is difficult to overestimate the tremendous role this lot
of abandoned Arab property has played in the settlement of hundreds of
thousands of Jewish immigrants who have reached Israel since the
proclamation of the state in May 1948 (Many of the Jewish refugees from
Arab countries who had their businesses, homes and land confiscated by the
Arab governments were resettled in some of these abandoned Arab land in Israel).
Forty-seven new rural settlements established on the sites of abandoned
Arab villages had by October 1949 already absorbed 25,255 new immigrants.
By the spring of 1950 over 1 million dunams had been leased by the
custodian to Jewish settlements and individual farmers for the raising of
grain crops.
Large tracts of land belonging to Arab absentees have also
been leased to Jewish settlers, old and new, for the raising of vegetables.
In the south alone, 15,000 dunams of vineyards and fruit trees have been
leased to cooperative settlements; a similar area has been rented by the
Yemenites Association, the Farmers Association, and the Soldiers Settlement
and Rehabilitation Board. This has saved the Jewish Agency and the
government millions of dollars. While the average cost of establishing an
immigrant family in a new settlement was from $7,500 to $9,000, the cost in
abandoned Arab villages did not exceed $1,500 ($750 for building repairs
and $750 for livestock and equipment).
Abandoned Arab dwellings in towns have also not remained
empty. By the end of July 1948, 170,000 people, notably new immigrants and
ex-soldiers, in addition to about 40,000 former tenants, both Jewish and
Arab, had been housed in premises under the custodian's control; and 7,000
shops, workshops and stores were sublet to new arrivals. The existence of
these Arab houses-vacant and ready for occupation-has, to a large extent,
solved the greatest immediate problem which faced the Israeli authorities
in the absorption of immigrants. It also considerably relieved the
financial burden of absorption.[28]
How much of Israel's territory
consists of land Acquired under the Absentee Property Law is uncertain and
much disputed. Robert Fisk interviewed
the Israeli Custodian of Absentee Property, who estimates this could amount
to up to 70% of the territory of Israel, the West Bank and the Gaza
Strip:
The Custodian of Absentee Property does
not choose to discuss politics. But when asked how much of the land of the
state of Israel might potentially have two claimants — an Arab and a
Jew holding respectively a British Mandate deed which is questionable in
its legality, and an Israeli deed to the same property — Mr. Manor
[the Custodian in 1980] believes that 'about 50 percent' might fall into
that category (Robert Fisk,
'The Land of Palestine, Part Eight: The Custodian of Absentee
Property', The Times, December 24, 1980, quoted in his
book Pity the Nation: Lebanon at War) (There should be an
offset to these properties, since the Arab countries expelled hundreds of
thousands Jewish families and confiscated all their assets, including
personal, businesses, homes and Real estate property at least 20 times the
amount retained by the Israeli government from absentee Arab property in
Israel).
The Jewish National Fund, from Jewish Villages in Israel, 1949:
Of the entire area of the State of Israel only about
300,000-400,000 dunums -- apart from the desolate rocky area of the
southern Negev, at present quite unfit for cultivation
-- are State Domain which the Israeli Government took over from the
Mandatory regime. The J.N.F. and private Jewish owners possess under two
million dunums. Almost all the rest belongs at law to Arab owners, many of
whom have left the country. The fate of these Arabs will be settled when
the terms of the peace treaties between Israel and her Arab neighbors are
finally drawn up which includes the Jewish assets, home and real estate
which is over 120,000 sq. km. (6 times the size of Israel) confiscated by
the Arab countries from the million Jewish families they terrorized and
expelled with only a shirt on their back. The J.N.F., however, cannot wait
until then to obtain the land it requires for its pressing needs. It is,
therefore, acquiring part of the land abandoned by the Arab owners, through
the Government of Israel, the sovereign authority in Israel. Whatever the
ultimate fate of the Arabs concerned, it is manifest that their legal right
to their land and property in Israel, or to the
monetary value of them, will not be waived, nor do the Jews wish to ignore
them. ... [C]onquest by force of arms cannot, in law or in ethics, abrogate
the rights of the legal owner to his personal property; this applies also
to the million Jewish families expelled from Arab countries which their
assets, businesses, homes and over 120,000 sq. km. of Jewish owned land for
over 2,400 years, including community property such as houses of worship,
schools, cemeteries, etc, valued in the trillions of dollars. The J.N.F.,
therefore, will pay for the lands it takes over, at a fixed and fair price.[30]
The absentee property played an enormous role in making Israel a viable state.
In 1954, more than one third of Israel's Jewish
population lived on absentee property and nearly a third of the new
immigrants (250,000 people) some who were expelled from the Arab countries,
settled in urban areas abandoned by Arabs. Of 370 new Jewish settlements
established between 1948 and 1953, 350 were on absentee property currently
many of the expelled Jewish families and their children from Arab countries
made it their home, it shall also apply to Jewish assets, homes and land
confiscated by the Arab State of Jordan, since they expelled all the Jews
and forbids Jews to own property and reside in Jordan. Today over half the
population of Israel consists of
Jewish families and their children who were expelled from Arab countries. (Peretz, Israel
and the Palestinian Arabs, 1958).
The
Absentees’ Property Law, 5710- 1950
This law replaced the Emergency Regulations
(Absentees’ Property) Law, 5709-1948. According to Sabri Jiryis (p. 84),[31] the
definition of "absentee" in the law was framed in such a way as
to ensure that it applied to every Arab-Palestinian or resident in
Palestine who had left his usual place of residence in Palestine for any
place inside or outside the country after the adoption of the partition of
Palestine resolution by the UN. Article
1(b) states that "absentee" means:
"absentee" means -
(1) a person who, at any time during the period between the
16th Kislev, 5708 (29th November, 1947) and the day on which a declaration
is published, under section 9(d) of the Law and Administration Ordinance,
5708-1948(1), that the state of emergency declared by the Provisional
Council of State on the 10th Iyar, 5708 (19th May, 1948)
(2) has ceased to exist, was a legal owner of any property situated in the
area of Israel or enjoyed or held it, whether by himself or through
another, and who, at any time during the said period -
(i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or the Yemen, or
(ii) was in one of these countries or in
any part of Palestine outside the area
of Israel, or
(iii) was an Arab-Palestinian citizen and
left his ordinary place of residence in Palestine
(a) for a place outside Palestine before the 27th
Av, 5708 (1st September,
1948); or
(b) for a place in Palestine held at the time
by forces which sought to prevent the establishment of the State of Israel
or which fought against it after its establishment;
(2) a body of
persons which, at any time during the period specified in paragraph (1),
was a legal owner of any property situated in the area of Israel or enjoyed
or held such property, whether by itself or through another, and all the
members, partners, shareholders, directors or managers of which are
absentees within the meaning of paragraph (1), or the management of the
business of which is otherwise decisively controlled by such absentees, or
all the capital of which is in the hands of such absentees;
According to COHRE and BADIL (p. 41), the provisions in
the law made sure that the term 'person' did not apply to Jews. The law also applied to Arabs who
had become citizens of the State of Israel but were not in their usual
place of residence as defined by the law. In this case, they were referred
to as 'present absentees' and many lost their lands.
The Law then appointed a Custodianship Council for
Absentees' Property, whose president was to be known as the Custodian of
Absentees' Property (Article 2). The law then made these properties the
legal holdings of the Custodian. According to Art. 4.(a)(2):
every right an absentee had in any property shall pass
automatically to the Custodian at the time of the vesting of the property;
and the status of the Custodian shall be the same as was that of the owner
of the property.
According to COHRE and BADIL (p. 41), those who were
found to occupy property in violation of this law could be expelled, and
those who built on such property could have their structures demolished.
The law came to apply not only to Palestinians who fled but also to those
who were away from their regular places of residence (as described in the
previous paragraph).
According to the Israel Government Yearbook, 5719
(1958) (p. 235), the "village properties" of
absentee Arabs "which was appropriated by the Custodian of Absentees'
Property" included "[the land of] some 350 completely abandoned
or semi-abandoned [Arab] villages, the aggregate area of which was about
three-quarters of a million dunums .... Among the agricultural properties
were 80,000 dunums of abandoned groves... [and] more than 200,000 dunums of
plantations were taken over by the custodian. "It was estimated that
"the urban properties ... include[d] 25,416 buildings in which there
are 57,497 dwellings and 10,727 business and trade premises."[32]
According to COHRE and BADIL (p. 41), "estimates
of the total amount of ‘abandoned’ lands to which Israel laid claim vary
between 4.2 and 5.8 million dunum (4 200-5 800 km²). Between 1948 and
1953 alone, 350 of the 370 new Jewish settlements (with many of the Jewish
families expelled from Arab countries) were created on lands confiscated
under the Absentees’ Property Law."
The Absentees’ Property Law underwent several amendments,
including:
Both amendments clarifying rental arrangements and tenant
protection rights on such property.
Land
Acquisition (Validation of Acts and Compensation) Law, 5713-1953
According to COHRE and BADIL (p. 42), the Government of
Israel did not automatically gain title to lands seized under the
Absentees’ Property Law. This was accomplished under the Land
Acquisition (Validation of Acts and Compensation) Law, 5713-1953. This
law legalized expropriations (retroactively in many cases) for military
purposes or for the establishment of (Jewish) settlements, some for
security purposes.
The law allows the Government to claim the property of lands
which are not in the possession of its owner as of 1 April 1952. Article 2 (a) states:
Property in respect of which the Minister certifies by
certificate under his hand--
(1) that on the 6th Nisan, 5712 (1st April, 1952) it was not in
the possession of its owners; and
(2) that within the period between the 5th
Iyar, 5708 (14th May, 1948) and the 6th
Nisan, 5712 (Ist April 1952) it was used or assigned for purposes of
essential development, settlement or security; and
(3) that it is still required for any of
these purposes
The further states the monetary compensation for those
losing their lands and that in the case were the lands corresponded to
agricultural lands, where those lands formed their main source of
livelihood, lands elsewhere would be offered. Article 3 reads:
(a) The owners of acquired property are entitled to
compensation therefore from the Development Authority. The compensation
shall be given in money, unless otherwise agreed between the owners and the
Development Authority. The amount of compensation shall be fixed by
agreement between the Development Authority and the owners or, in the
absence of agreement, by the Court, as hereinafter provided.
(b) Where the acquired property was used for agriculture and
was the main source of livelihood of its owner, and he has no other land
sufficient for his livelihood, the Development Authority shall, on his
demand, offer him other property, either for ownership or for lease, as
full or partial compensation. A competent authority, to be appointed for
this purpose by the Minister, shall, in accordance with rules to be
prescribed by regulations, determine the category, location, area, and, in
the case of lease, period of lease (not less than 49 years) and the value
of the offered property, both for the purpose of calculating the
compensation and for determination of the sufficiency of such property for
a livelihood.
(c) The provisions
of subsection (b) shall add to, and not derogate from, the provisions of
subsection (a).
According to Alexandre Kedar (p. 153), until 1959,
compensation was calculated on the basis of the 1950 land values. The
author cites a 1965 ILA report which shows that over 1.2 million dunum
(about 1 200 km²) of Arab land were taken in this manner.[33]
The Absentees’
Property (Amendment No.3) (Release and Use of Endowment Property) Law,
5725-1965
This law extends the scope of the Absentees' Property Law
and earlier regulations concerning the Muslim religious endowment,
the Waqf. Article 29A (c)
states:
For the purposes of this section and of sections 29B to 29H,
"endowment property" means Muslim waqf property being immovable
property validly dedicated.
According to COHRE and BADIL (p. 41), it allows the
Government to confiscate vast amounts of Muslim (charity) land and other
properties, including cemeteries and mosques, and place them under Government
administration. According to the law, income from these properties would be
used in part to build institutions and provide services for the Muslim
inhabitants in areas where such property is located. The law amends the
1950 law in the following way:
In section 4 of the Absentees' Property Law, 5710-1950(1)
(hereinafter referred to as "the principal Law"), the following
subsection shall be inserted after subsection (a):
(1) Where any property is an endowment
under any law, the ownership thereof shall vest in the Custodian free from
any restriction, qualification or other similar limitation prescribed,
whether before or after the vesting, by or under any law or document
relating to the endowment if the owner of the property, or the person
having possession or the right of management of the property, or the
beneficiary of the endowment, is an absentee. The vesting shall be as from
the 10th Kislev, 5709 (12th December,
1948) or from the day on which one of the aforementioned becomes
an absentee, whichever is the later date.
(2) The provisions of this subsection
shall not void any restriction, qualification or other similar limitation
prescribed by or under this Law or imposed by the Custodian and shall not
void any transactions effected by him.".
(b) This section
shall have effect retroactively as from the date of the coming into force
of the principal Law.
According to Meron Benvenisti:
"Most Waqf property in Israel was expropriated under
the Absentee property Law (giving rise to the sarcastic quip
-"Apparently God is an absentee [in Israel]") and afterward
handed over to the Development Authority, ostensibly because this was necessary
to prevent its being neglected, but actually so as to make it possible to
sell it. Only about one-third of Muslim Waqf property, principally mosques
and graveyards that were currently in use, was not expropriated. In 1956
its administration was turned over to the Board of Trustees of the Muslim
Waqf, which by then was made up of collaborators appointed
by the authorities. These "trustees" would sell or "exchange"
land with the ILA without
any accountability to the Muslim community. Anger over these deeds led to
acts of violence within the community, including assassinations.".[34]
The Absentees’
Property (Compensation) Law, 5733-1973[3]
This law establishes the procedure to compensate owners of
lands which have been confiscated under the Absentees’ Property Law
(1950). It establishes the requirements to be eligible for compensation
(Article 1):
The persons entitled to compensation are all those who were Israel residents on 1 July 1973, or became residents thereafter,
and prior to the property becoming vested in the Custodian of Absentees'
Property were
1.the owners of property, including their
heirs, or
2.the tenants only of urban property,
including spouses living with them at the last mentioned date, or
3.the lessees of property, or
4.the owners of any easement in property.
Other provisions specify the time limit legally allowed for
filing a claim, whether compensation would be awarded in cash or bonds
(depending on circumstances), the payment schedule (generally over a
fifteen-year period) and other provisions. Appended to the law is a
detailed schedule of how compensation is to be calculated for each type of
property, urban or agricultural. Some provisions of this law were amended
in later years.[35]
Laws enacted to legalize further acquisition
of depopulated lands, and related laws
Land
(Acquisition for Public Purposes) Ordinance (1943)
This ordinance was originally enacted by the British in 1943
and later used by Israel to authorize the
confiscation of lands for Government and ‘public’ purposes (see eminent domain).
These included building Government offices, creating lands and parks, and
suchlike. Kedar (p. 155) describes this law as “the main general land
expropriation law in force in Israel today”.
A 1964 amendment to this law, Acquisition for Public
Purposes (Amendment of Provisions) Law, 5724-1964, specifies procedures
to be followed in the acquisition of lands based on this and other laws,
including the original Land (Acquisition for Public Purposes)
Ordinance (1943), the Town Planning Ordinance (1936), and
the Roads and Railways (Defense and Development) Ordinance (1943).
The 1964 amendment also defines circumstances under which no compensation would
be offered to those whose lands had been expropriated; generally, where the
expropriation had occurred prior to the coming into force of this law.
Additional amendments corrected various laws under which such lands might
be expropriated, substituting Israeli laws for earlier British versions and
clarifying rights to compensation.
According to COHRE and BADIL (p. 43), Israel used this law
extensively to expropriate Arab Palestinians lands. Many Arab Palestinians
challenged the expropriations and did not accept compensation. A 1978
amendment to the law, Acquisition for Public Purposes (Amendment of
Provisions) (Amendment No.3) Law, 5738-1978, addresses this issue by
decreeing that where the owner refuses compensation or does not give
consent within the time allotted, these funds would be deposited with the
Administrator-General in the name of the owner. However, this provision has
no bearing on the matter of the expropriation itself. According to the
COHRE and BADIL study, lands acquired under this law were used for the
building of new Jewish settlements or other ventures from which Arab
Palestinians with Israeli citizenship were excluded. The Jewish-dominated
sector of Upper
Nazareth was created in this manner and was the subject of
several lawsuits filed at the Supreme Court.
According to Fast Magazine, with the law 40 percent of the
owner’s land can be confiscated without compensation and public purposes
are usually Jewish: From 1200 dunams confiscated in Nazareth for public
purposes, 80 dunams were used for public buildings and the rest was used to
build Jewish housing.[36]
Jerusalem Military Government (Validation of
Acts) Ordinance, 5709-1949
According to COHRE and BADIL (p. 41), this law extends
Israeli jurisdiction to ‘the Liberated-Occupied Area of Jerusalem’ (the
western part of Jerusalem that was
incorporated into Israel in 1948). It
declares that all orders and regulations enacted by the Military Governor
or other Government ministries shall be given the force of law.
Development
Authority (Transfer of Property) Law, 5710-1950
According to COHRE and BADIL (p. 42), the ‘Authority
for the Development of the Country’ (or the ‘Development Authority’) was
established to work with relevant Government agencies to acquire and
prepare lands for the benefit of newly arriving Jewish immigrants. Vast
amounts of land allocated for this purpose were bought from the ‘Custodian
of Absentee Property’. Pursuant to this law, lands passing into the hands
of the State or to JNF control would be deemed inalienable. Article 3(4)(a)
reads:
The Development Authority is competent:
to sell or otherwise dispose of, let,
grant leases of, and mortgage property; provided that
(a) the Development Authority shall not be
authorized to sell, or otherwise transfer the right of ownership of,
property passing into public ownership, except to the State, to the Jewish
National Fund, to an institution approved by the Government, for the
purposes of this paragraph, as an institution for the settlement of
landless Arabs, or to a local authority; the right of ownership of land so
acquired may not be re-transferred except, with the consent of the
Development Authority, to one of the bodies mentioned in this subparagraph;
(b) the Development Authority shall not be
authorized to sell immovable property not being land passing into public
ownership, unless such property has first been offered to the Jewish
National Fund, and the Jewish National Fund has not agreed to acquire it
within a period fixed by the Development Authority;
(c) the total area of immovable property,
not being land passing into public ownership, which the Development
Authority may sell, or the right of ownership of which it may otherwise
transfer, shall not exceed 100,000 dunams, but immovable property acquired
by any of the bodies mentioned in subparagraph (a) shall not be taken into
account for the purposes of this subparagraph;
(d) the sale, or the transfer of the right
of ownership in any other way, of immovable property, being land passing
into public ownership or other immovable property, shall be effected by
decision of the Government in each individual case;
Prescription
Law, 5718-1958
The Prescription Law was first enacted in 1958 and amended
in 1965. It repeals critical provisions of, and reverses British practices
in relation to, the Ottoman Land Code (1858).
According to COHRE and BADIL (p. 44), the Prescription
Law is one of the most critical to understanding the legal
underpinnings of Israel’s acquisition of Arab-Palestinian
lands. Although not readily apparent in the language of the law, the
purpose behind this legislation was to enable Israel to claim as ‘State
lands’ areas where Arab-Palestinians still predominated and where they
could still assert their own claims on the land (for example, in the north
of the country). The authors claim that this law, in conjunction with
the Land (Settlement of Title) Ordinance (Amendment) Law, 5720-1960,
the Land (Settlement of Title) Ordinance (New Version), 5729-1969 and
the Land Law, 5729-1969, was designed to revise criteria
related to the use and registration of Miri lands – one of the most
prevalent types in Palestine – and to facilitate Israel’s acquisition
of such land.
Under this law, farmers are required to submit documentation
proving uninterrupted cultivation of designated plots of land over a
15-year period (the ‘prescription’ period). Article 5 states:
The period within which a claim in respect of which an
action has not been brought shall be prescribed (such period being
hereinafter referred to as "the period of prescription") shall be
(1) in the case of a claim not relating to
land — seven years;
(2) in the case of a claim relating to
land — fifteen years or, if the land has been registered in the land
register after settlement of title in accordance with the Land (Settlement
of Title) Ordinance(1), twenty-five years.
The law adds the proviso that lands purchased after 1 March 1943 would be subject to a 20-year
verification period. The law also specifies a five-year hiatus between 1958
and 1963 that would not be counted toward this ‘prescription’ period.
According to COHRE and BADIL, by 1963, much of the lands in
question had still not been surveyed. Therefore, calculations of the
requisite 20-year verification period were in effect halted, and the State
was in a position to press its own claims to these lands. The authors
consider that the Prescription Law had even more complex
ramifications. For example, Israel decided that
British aerial photographs of 1945 would be used to verify cultivation.
Arab farmers who had not yet begun tilling their lands at the time the
photographs were taken found they were by definition unable to meet the
requisite 15-year ‘prescription’ period. Also, as Israel did not accept
other evidence of cultivation, such as tax records, many Palestinians fell
victim to a ‘Catch-22’: in the process of trying to establish their legal
ownership they (retroactively) lost their lands.
According to COHRE and BADIL a 1965 report by the Israeli
Land Administration (ILA) reflects on the rationale behind the law:
In the Northern area, there was a danger of the [acquisition
of rights] by prescription according to the Statute of Limitation (1958)
regarding all State land, and those [lands] of the Custodian of Absentee
Property and the Development Authority. Particularly in the area of the
[Arab] minorities where various elements began to take over State land and
those of the Development Authority, and [sic] there was worry that these
lands would be taken away from the hand of the ILA [Israeli Land
Administration] and be transferred to the ownership of the trespassers.[37]
See also
1. Jump up^ Baruch Bracha.
"Restriction of personal freedom without due process of law according
to the Defence (Emergency) Regulations, 1945". Israel Yearbook on Human Rights. pp. 296–323.
3. Jump up^ Village Statistics of 1945: A
Classification of Land and Area ownership in Palestine [1]
4. Jump up^ Abu Sitta, Salman
(2001): From Refugees to Citizens at Home. London: Palestine Land Society and Palestinian Return
Centre, 2001.
12. Jump up^ Kenneth W. Stein, "The
Land Question in Palestine, 1917-1939" (1987), University of North
Carolina Press, ISBN 0-8078-4178-1 (excerpts: [2] )
13. Jump up^ Walter Lehn, The Jewish
National Fund, Journal of Palestine Studies, Vol. 3, No. 4.
(Summer, 1974), pp. 74-96.
22. Jump up^ Kirshbaum, David A. Israeli
Emergency Regulations and The Defense (Emergency) Regulations of 1945. Israel Law Resource Center, February, 2007
23. Jump up^ Apartheid, Israeli Style.
Journal of Palestine Studies, Vol. 11, No. 4, [Also
Vol. 12, no. 1]. Special Issue: The War in Lebanon (Summer, 1982), pp. 270-273
27. Jump up^ Flapan, Simha (1987): The
Birth of Israel, Myths and Realities. London and Sydney: Croom Helm, 1987
28. Jump up^ Schechtman, Joseph
(1952): The Arab Refugee Problem. New York, pp. 95-96, 100-01.
31. Jump up^ Jiryis, Sabri (1981): Domination
by the Law. Journal of Palestine Studies, Vol. 11, No. 1, 10th
Anniversary Issue: Palestinians under Occupation. (Autumn, 1981), pp.
67-92.
32. Jump up^ Jiryis, Sabri (1981): Domination
by the Law. Journal of Palestine Studies, Vol. 11, No. 1, 10th
Anniversary Issue: Palestinians under Occupation. (Autumn, 1981), p. 89
33. Jump up^ Kedar, Alexandre
(1996): Israeli Law and the Redemption of Arab Land 1948-1969. Thesis presented in partial
fulfilment of the Requirements for the Degree of Doctor of Juridical
Science, Harvard University, Cambridge, MA, May 1996.
37. Jump up^ Report of the Activity of
the ILA No. 4 (1964-1965), quoted in Kedar, p. 170.
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