When Jewish communities (“settlements”) were established, it was done “in good faith,” and with government approval on vacant land. Arabs did not go to court to claim “their land.”
BULLDOZERS DEMOLISH nine homes in Ofra in 2017. / (photo credit: HADAS PARUSH/FLASH90)
One of the most serious accusations against Israel’s presence in Judea and Samaria to “end the occupation” and in the Boycott, Divestment and Sanctions campaigns is that Israel systematically steals or “seizes” “private Palestinian land.” Not only would that be illegal, it is immoral. This seems to be the basis for the High Court’s decision to strike down the Regulation Law.
It is important to remember the reason for the Regulation Law. When Jewish communities (“settlements”) were established, it was done “in good faith,” and with government approval on vacant land. Arabs did not go to court to claim “their land.” Only much later, led by left-wing NGOs, were Arabs encouraged to make their claims.
The humanitarian purpose of the Regulation Law was to protect Jews who had built their homes “in good faith.” Most other countries have similar laws which protect homeowners in cases where the value of what was built far exceeds the value of the land. Destroying the homes of many thousands of Jews to resolve questionable or false Arab land claims would be unfair and unjust. Therefore, compensation was offered to Arab claimants, regardless of proof of ownership.
The source for the charge that “Israel is stealing privately owned land” is not only PLO/PA, Hamas, left-wing and anti-Israel media, and Arab propaganda, but an agency of the Israeli government: Coordinator of Government Activities in the Territories (COGAT).
COGAT, a unit of the Defense Ministry, is responsible for “implementing government policy in Judea and Samaria.” But COGAT not only “implements,” it also makes policy. And, as a separate independent military-legal administration, it is virtually unaccountable to anyone except the defense minister and the prime minister. They are responsible for this misrepresentation of fact.
COGAT and the IDF legal adviser, in cooperation with the attorney-general’s office, the state prosecutor’s office, the Justice Ministry and the High Court (Bagatz), routinely decide that land claimed by Arabs is valid. These claims, however, are based on massive distributions of state land throughout Judea and Samaria during the Jordanian occupation. They lack supporting evidence of ownership, such as deeds, transactions and actual possession, or usufruct. Nevertheless, COGAT recognizes the claims as valid, thus supporting charges that Israel steals private land.
Based on COGAT’s decisions, which are not reviewed by district courts – the only judicial body mandated to determine matters of land ownership – NGOs supporting Arab claims appeal to the High Court, which relies heavily on COGAT as the government’s authority.
COGAT defends its decisions by citing the land registry (taba) for Judea and Samaria, which lists names of “owners,” mostly villages and tribes who were given state land during the early 1960s. None of the land was purchased, most of the land was never used, no taxes were paid and the original Arab recipients of land are no longer alive. To whom does this disputed land belong?
ACCORDING TO Ottoman and British Mandate law, gifted land could not be inherited without approval by the sovereign. Moreover, land that was given by the sovereign could be claimed as private only if the land was used continually (usufruct) for 10 years and taxes were paid. Otherwise, unused land reverts to the sovereign by law. Jordan changed this law and registered the land as privately owned, permanently, without conditions.
Since Jordan was never acknowledged as the legitimate sovereign over this territory, its occupation and anti-Jewish laws – including prohibiting non-Jordanian citizens from owning land and incurring the death penalty for selling land to Jews – have no validity; COGAT differs.
The status of land in Judea and Samaria was further confused by former High Court Chief Justice Dorit Beinisch, who, at the end of her term decided unilaterally that hazakah, the right to claim title to land by working it and paying taxes applied only to Arabs, not Jews.
Since COGAT considers the land registry for Judea and Samaria “confidential,” it restricts access to it by Jews, making it nearly impossible to challenge Arab claims of private ownership or for Jews to acquire land. COGAT’s secretive procedure is backed by the High Court, which defends COGAT’s rule as a government agency. COGAT refuses to explain why their rules prevail exclusively and why access to public documents is forbidden.
Regavim, an NGO, challenged the legality of COGAT’s position specifically with regard to land surrounding the Jewish community of Psagot. Regavim claimed that COGAT’s policies discriminate against Jews. The Jerusalem District Court agreed, awarded the case to Regavim, and ordered COGAT to make available land records of the surrounding area; COGAT has appealed to the High Court.
According to Ari Briggs, spokesman for Regavim, COGAT‘s policy restricts access to the land registry for Judea and Samaria only to people who are “connected to the land,” and defines those people only as Arabs. Regavim’s legal challenge is to force COGAT to end its discriminatory policy and allow equal access to Jews. Not only did COGAT appeal to the District Court’s decision, they also forbade access to the land registry by military order – thus transforming what should be a normal administrative process into their own exclusive domain.
Since 2008, COGAT has prevented the operation of a sewage treatment plant between the Arab village of Silwad and the Jewish community of Ofra because, COGAT ruled, it is built on “private Palestinian land” which belongs to the village. The attorney-general and the High Court have ordered that the project – which would serve all residents of the disputed area – be removed.
COGAT also opposes plans to widen the road near the Adam Junction because it infringes on “private Palestinian land.” Asked for details about who owns the land in question, COGAT has refused – and COGAT is “the law.”
The government sought to rectify this discriminatory and undemocratic system by appointing independent courts to adjudicate land disputes and determine ownership, and/or by extending the jurisdiction of District Courts as recommended by a commission of legal experts headed by the late justice Edmund Levy. That was the purpose of the Regulation Law.
The High Court could also require that disputes over land ownership be heard first by District Courts before any appeals, as is commonly practiced in all democratic countries. The High Court’s recent decision striking down the Regulation Law ignores this important first step in judicial procedures and norms. Therefore, the fundamental questions remain: To whom does disputed land belong? Is the Regulation Law legal, fair and just? This is one of the reasons why plans to extend Israeli law and sovereignty to Jewish communities in Judea and Samaria is so important.
The writer is a PhD historian and journalist in Israel.