land, law and the conflict - 1948 and the changing role of law

8/3/2019 Land, Law and the Conflict - 1948 and the Changing Role of Law

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The UN Partition of 29 Nov. 1947

Population: 608,000 Jews (32%);1.3 million Palestinians (68%).

Land Ownership: 7% Jewish

ownership.

Territory of Proposed States:Jewish: 55%; Arab: 45%.

Palestinian State: 818,000Palestinians and less than 10,000Jews.

Jewish State: 499,000 Jews (53%)

and 438,000 Palestinians (47%).


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Land, Law and the Conflict1948 and the Changing Role of Law


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From Mandate to Jewish State

In 1948, the Jewish established control over 78%

of Mandate Palestine, established a legislatureand a government, and staffed the alreadyexistingjudiciarywith Jewish judges.

Drastic change in government priorities and policy.

Establishment, stabilization and security of the

state, as a Jewish state, as constitutionalprinciples.

All components of the regime worked in theinterest of the Zionist project.

Military government over most Palestinian citizens

of Israel until 1966.


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From Colonial Mandate State Structureto Democratic Structure

Representative regime with free elections,requiring different type of consideration of publicopinion.

With the exception of emergency regulations,legislation is undertaken in the public arena(Knesset)

Commitment of many Jewish leaders to the

ideal of a democratic regime which couldensure the rights of Israels Palestinian citizens,to the extent that this did not conflict withstabilization of Israel as a Jewish state (theory v.reality).


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From a Colonial Governing Structure toa Democratic Structure ensuring

Unchecked Majority Control

Executive Branch Government with a stablecoalition, collective responsibility, and faction-discipline effectively controlled the Knesset.

Legislative Branch The Knesset, aunicameral legislature theoretically enjoyingparliamentary supremacy, but in practice

controlled by the government.

Judicial Branch Court system and SupremeCourt with no constitution.

Democracy? Ethnic-Democracy? Ethnocracy?


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The First Act of the Provisional StateCouncil (14 May 1948)

In virtue of the Declaration of Independence published this

daythe Provisional Council of State hereby declares asfollows:1. The Provisional Council of State is the legislative authority

2. Such provisions of the law as arise from the White Paper of1939 are hereby declared null and void.

Sections 13 to 15 of the Immigration Ordinance, 1941arehereby repealed.The Land Transfers Regulations, 1940 are hereby repealedretroactively as from 18 May 1939.

3. So long as no laws have been enacted by or on behalf of the

Provisional Council of State, the law which existed inPalestine on 14 May 1948 shall continue in force in the Stateof Israel, in so far as such continuance is force is consistentwith the contents of this Proclamation, with the future lawsand with the changes arising from the establishment of theState and its authorities

(see also Law and Administration Ordinance, 1948, Sec. 13(b).)


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Government Policy towards Israels

Arabs during the 1950s and 1960s

Function of Jewish leaders perception of the

Arab minority as a security threat (fifth column),

but also

Function of Jewish leaders desire to establish,deepen, and perpetuate Jewish control of Israel.

- Close supervision.

- Governing system facilitating greater control.- Prevention of a unified Arab minority.

- Favoring development of Jewish economy.

- Jewish settlement in Arab areas.


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Land Laws: 1948-1960

Continuation of the struggle for the land with:- Palestinian refugees living outside Israel.- Palestinian citizens of Israel.

Israeli government officials and legislatorsenacted laws aimed at transferring largeareas of land to state ownership, to ensureJewish access, and to limit Arab access.

Evolution of the Israeli land regime.


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Israel Lands

JNF Land State LandDevelopment

AuthorityLand

The Evolution of Israel Lands:

Comprising 93% of the land in Israel


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Land the Government Regarded as Nationally Owned in 1949

1. JNF-owned Land Area in Dun.

a) Until state 940,000

b) Purchased from state 1,000,000 1,940,000

2. State-owned Land

a) Registered in the name of the state. 995,000

b) Cultivated absentee land in Arab villages. 1,373,000

c) Fallow and waste land in Arab villages. 2,720,000

d) Cultivated Bedouin land in the northern Negev. 1,700,000

e) Uncultivated land in the southern Negev. 10,880,000

f) Concessions. 146,000Sold to the J.N.F. 1,000,000- 16,814,000

18,754,000


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J.N.F. Land


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The Legal Status of the JNF

1901 J.N.F. established at the 5th Zionist Congress.

1907 J.N.F. incorporated in England. Its bylaws prohibit thesale of land and the lease of land to non-Jews.

By 1948 The J.N.F. had purchased almost 1 milliondunams in Mandate Palestine.

In 1948 The J.N.F. loses its primacy in the realm of Jewishland acquisition and is dwarfed by the state.

1954 J.N.F. incorporated in Israel with similar bylaws.

1952-1957 Legislation and agreements between the state,the J.N.F. and the Jewish Agency which endow the J.N.F.with tax-exemption a nd the status of a local council.


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J.N.F. Land: 1948-1964

Year Source of New Land Total Area

1948 Pre-state purchases. 940,000

1950 From state (1.1 million dun.).Small purchases (7,800 dun.)

2,088,200

1956 From state (1.2 million dun.).Purchased from non-Jews (41,600 dun.).

Purchased from Jews (14,150 dun.).

3,400,000

1960 From the P.J.C.A. after death ofRothschild (134,000 dun.).Purchased from non-Jews (27,848dun.).

Purchased from Jews (21,263).

3,600,000

1964 Returned to the State (1 million dun.). 2,600,000


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State Land


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Land the Government Regarded as Nationally Owned in 1949

1. JNF-owned Land Area in Dun.

a) Until state 940,000

b) Purchased from state 1,000,000 1,940,000

2. State-owned Land

a) Registered in the name of the state. 995,000

b) Cultivated absentee land in Arab villages. 1,373,000

c) Fallow and waste land in Arab villages. 2,720,000

d) Cultivated Bedouin land in the northern Negev. 1,700,000

e) Uncultivated land in the southern Negev. 10,880,000

f) Concessions. 146,000Sold to the J.N.F. 1,000,000- 16,814,000

18,754,000


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State Property Law, 1951

Declared that all property of the Mandategovernment as of 14 May 1948 was Israelistate property, as of 15 May 1948.

Sale or transfer of state land prohibited(with certain exceptions).

Sale or transfer of state land permitted tothe J.N.F. and the Development Authority.


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DevelopmentAuthority Land


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Abandoned Arab Land from 1948The Evolving Legal Basis

Fallow Lands Regulations (Oct. 1948) Empowered the Ag. Min. to authorize the transfer of fallowland to whomever would cultivate it (retroactively as well).

Used in conjunction with Reg. 125 of the MandateEmergency (Defense) Regulations of 1945.

Absentee Land Regulations (Dec. 1948) Expropriated the property of all classified as absentee

that is, anyone who after 29/11/47 was: a) a citizen of oneof the countries at war with Israel; b) present in one ofthese countries or in a part of Palestine not under Israeli

control; c) citizen of Palestine who left his/her regular placeof residence.

Vested this property in the Custodian of Absentee Property.The Regulations prohibited the sale or long-term leasing

(more than 5 years) of absentee land.

I J 1949 h I li


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In January 1949 the Israeli governmentsold 1 million dunams of abandoned

Palestinian land to the J.N.F.

Was this legal?


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The Two Statute Mechanism of 1950Zalman Lifshitz (Lif) proposed the idea what was itsorigin?

Absentee Property Law, 1950 Slight change in definition of absentee. Permanent legislation replacing the emergency

regulations. Permitted sale of absentee land to Development

Authority.Development Authority Law, 1950 Established the Development Authority, technically a non-

government body charged with development of thecountry.

Its real aim was to facilitate the transfer of absenteeproperty from the limited ownership of the CAP to stateand Jewish ownership for long-term use.The Result An integrated mechanism for

transferring absentee property to the state and theJ.N.F.

Th L d A i i i L


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The Land Acquisition Law, 1953

Vests in the Development Authority all property which

the Finance Minister certifies:a) Was not in its owners possession on 1 April1952;

b) Was used for essential development, settlement,or security purposes between 14 May 1948 and 1April 1952;

c) Was still needed for one of these purposes.

In Younes v. Minister of Finance, the HCJ (5/54)adopted a narrow interpretation of Sec. 2 of the LAL,which held that the expropriation (acquisition)certificate was itself decisive evidence, and that the

Court had no authority to review his decision.


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The Israel Lands Legislation of1960

Basic Law: Israel LandsThe principle: ownership of state, DevelopmentAuthority, and J.N.F. land shall not be transferred.

Israel Lands Law, 1960

Specifies exceptions.

Israel Land Administration Law, 1960a) Establishes the Israel Lands Administration.

b) Amends the State Property Law and theDevelopment Authority Law.

What about the JNF?


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Its all in the covenant

November 1962 covenant between the state and the JNF. Israel Lands will be administered by the ILA.

There will be no change in ownership of the land.

The government will consult with the JNF beforeappointing the director of the ILA.

The Israel Lands Council will consist of 7 representativesof the government and 6 representatives of the JNF.

A new Land Development Authority will be establishedwithin the JNF, and will be responsible for all landimprovement, development, and forestation.


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Release from the Covenant

Covenant automatically renewed every 5 years, and

each party can release itself by notifying the otherparty at least 6 months before the end of a 5-yearperiod.

The JNF may be released in the event that the Basic

Law is amended or annulled without the JNFreceiving prior warning from the government.

If this covenant ceases to be validthe situation isto revert to what it was prior to the laws coming into

force, and the government is committed to proposingthe necessary legislation to the Knesset.

Each party can propose amendments to thecovenant. Such amendments come into force upon

the agreement of the other party.


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After44 years the JNF is in advancednegotiations to separate from the state: a

new arrangement will make it easier for itto market land exclusively to Jews.

According to this arrangement, the J.N.F.will become a private company andtransfer dozens of thousands of dunams

in urban centers to the state the statewill give the JNF an equal area of land inthe periphery.

Haaretz, 21 January 2005, p.1


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Senior JNF officials claim that this isnot annulment of the covenant, butrather forging of a new covenant, which

will result in separation of decision-making regarding land owned by theJNF

Haaretz, 28 January 2005, p.1


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Israel Lands

JNF Land State LandDevelopment

Authority Land

From Arab LandTo Israel Lands:

Where are the expropriated ArabLands from 1948 today?

land, law and the conflict - 1948 and the changing role of law

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