Peace Now, the Israel-based advocacy group, has issued a new report, Breaking the Law – One Violation Leads to Another, claiming that “a large proportion of the settlements built on the West Bank are built on privately owned Palestinian land,” including 86.4% of Ma’ale Adumim’s land and 35.1% of Ariel’s. Overall, the report claims, “Palestinians privately own nearly 40% of the land on which settlements have been built.” This is in direct contradiction to often repeated claims by numerous Israeli governments that settlements are built only on state (that is, public) land and not on private land.
The Peace Now report harshly concludes in its Executive Summary that:
…in addition to ignoring international laws and agreements, Israel has violated even its own norms and laws in the West Bank, through the confiscation of private Palestinian property and the building of settlements upon them…
Peace Now condemns the violation of Israeli law carried out over the past forty years by the State of Israel. We condemn the efforts of politicians and bureaucrats to launder the land grab, which deprived thousands of Palestinians of the basic human right of possession, on the individual and collective levels. We demand that the present Israeli Government rectify the situation, which means returning the private land to its owners. (emphasis in original)
How reliable is Peace Now’s evidence?
Are these rather strong, if not hyperbolic, conclusions justified by the evidence that Peace Now cites in its report? The answer would seem to be no. The database (probably a simple spreadsheet) and “digitized maps” (that is, colored in images) at the heart of Peace Now’s assertions came to them through a leak from a third party, and they are not even certain how current the information is. As the report puts it, the data is “updated to the best of our knowledge through 2004.”
But if they don’t know the currency of the data, what else don’t they know about the data? How, for example, do they know that the data hasn’t been tampered with? After all, with widely available software anyone can modify spreadsheets and computer images. Even if the data was at one time accurate, how can Peace Now be certain that the version they relied upon was accurate? And why has Peace Now so far refused to release the full data it says it has?
Even deeper problems with Peace Now’s analysis
Even if one assumes that the data is accurate, there are even deeper problems, since Peace Now’s interpretation of the data seems extremely tendentious at best. In addition, they misstate, and perhaps do not themselves understand, the relevant land laws, many of which date to the Ottoman empire. Thus, it is not surprising that others who looked at exactly the same data cited by Peace Now seemed to reach very different conclusions. In particular, as Peace Now explained in its report, the data the organization received:
…served as a reference for attorney Talia Sasson when she prepared her government-mandated report on the outposts – a report which has been widely publicized and discussed.
Now, Ms. Sasson was asked by the Israeli government to look into so-called unauthorized outposts, essentially small settlements apparently built without the necessary permissions from the proper authorities. But contrary to Peace Now’s charges, Ms. Sasson found that use of private Palestinian land for outposts was due not to some nefarious land grab but to errors in marking state land on maps. According to Ms. Sasson’s summary report, Summary of the Opinion Concerning Unauthorized Outposts:
I found that some of the lands allotted by the Civil Administration to the Settlement Division were survey lands [ie, of unknown ownership], and some were private Palestinian property. Apparently this was a result of errors in marking State lands on maps. This is one of the reasons that some of the unauthorized outposts were established not on State lands.
So was it occassional errors, as Ms. Sasson seems to believe on the basis of her data, or was it a knowing massive attempt to “launder a land grab,” as Peace Now charges on the basis of supposedly exactly the same data?
There are further serious problems with Peace Now’s allegations as well. Absolutely key to the questions they raise, for example, is the legal definition of what is public, or state, land, and what is private land. Unfortunately, the section of Peace Now’s report dealing with land law in the West Bank is extremely misleading, and in quite a few places simply incorrect. For example, according to the report:
Since 1967, Israel has made use of Ottoman legislation dating back to the middle of the 19th century in order to declare land to be “State land.” According to that law, all lands are considered “State Land” unless proven otherwise. To formally register land as private property, one must cultivate it for at least ten years. If the land is not registered, one would be considered the owner as long as he cultivates it and pays taxes on it. If the land is not cultivated for three successive years, it may become the property of the Ottoman State, i.e. “State Land”.
First of all, Israel was and is obligated under international law, in particular the Hague Regulations of 1907, to maintain the legal system in the territories, and to respect, “unless absolutely prevented, the laws in force in the country.” Thus it was not, as Peace Now clearly implies, an Israeli subterfuge (“Israel has made use of Ottoman legislation …”) to apply the pre-existing Ottoman – as well as British and Jordanian – laws in the West Bank. Indeed, had Israel ignored these laws and violated the Hague Regulations, Peace Now would probably be using the same language quoted above to once again “condemn” Israel for “ignoring international laws and agreements.”
Peace Now distorts the Ottoman Land Code
In addition, Peace Now is also incorrect that to be recognized as private property land must be cultivated for at least ten years. Under the Ottoman Land Code there is a category of land known as mulk which is allodial (ie private) land, and there is absolutely no need to cultivate such land in order to gain or k eep rights over it. (A Survey of Palestine, Vol. 1, p225; British Mandate)
Moreover, and this is the crucial point, what Peace Now refers to as “private property” in the above quoted paragraph, state land which has been cultivated for 10 years, is not at all private. For the rights in such land, whether or not it is registered, are in no way equivalent to what would be commonly called private property. Rather, it is more a form of feudal tenancy, as explained by the previously mentioned Survey:
The land tenures of Ottoman law consist of various modes of user the features of which are set out in the Ottoman Land Code… Most of the land [in Palestine] is held under two distinct tenures commonly referred to as mulk and miri. Mulk means “property.” The tenure called mulk is a private ownership tenure. Land so owned may be called “allodial” land. It is held in absolute ownership. The holder has almost unfettered freedom in regard to its use and disposition. Miri is a conditional usufruct tenure of land held by grant from the state. The holder or possessor is a usufructury whose tenure resembles a leasehold, subject to certain limitations on the use and disposition of the land and to the payment of certain fees. (p225-226)
That is, what Peace Now is calling “private Palestine land” is under the Ottoman Code at best miri land, and it is therefore not privately owned. Rather, it is land in which a person is granted by the state a limited right of use (whence the term usufruct). The rights include, for example, that once registered someone else cannot try to cultivate the same land. This is similar to the rights one has in renting an apartment – someone else cannot come and try to live without permission in the same apartment, but that doesn’t mean the renter owns the apartment.
Thus, contrary to Peace Now, the land remains the property of the state, and therefore it does not revert to the state only if there is a failure to cultivate. Miri land – the land of the Emir, or equivalently, of the sovereign – is state land, period. If there is a failure to cultivate the limited rights granted by the state are withdrawn, not ownership of the land, which was never granted in the first place.
Peace Now’s biggest deception regarding West Bank land
In addition, regarding the West Bank, there is under the Ottoman Code another very important category of land known as mewat, or “dead land,” which was deceptively unmentioned by Peace Now. Mewat land, according to the Survey is:
… unallocated or waste areas situated beyond the confines of inhabited regions which can only be rendered cultivable by special effort… Nowadays, the development of “waste” land without prior leave from the State is legally a trespass. The conclusion is that mewat should have no significance and should be deemed undeveloped “vacant land” proper which cannot be possessed except by allocation from the State. (p 233)
This category is important, since, as pointed out by a different British Mandate source:
Practically all the unoccupied land of Palestine is mewat and cannot be occupied without the permission of the Government. (Palestine and Transjordan, p 210; Great Britain, Naval Intelligence Division, 1943) (emphasis added)
The same source offers a further definition of mewat land:
Mewat is ownerless land, at a minimum distance of a mile and a half from the nearest inhabited town or village. Another system of measurement is, sufficiently distant from such a town of village that the voice of a man shouting there cannot be heard. (p 210)
That is, much of what Peace Now is terming “private Palestinian land” is in fact state land because it is mewat, and has been considered so for generations. The land on which Ma’ale Adumim was built, for example, was more than a mile and a half from the built up area of the closest Arab village, Al ‘Ayzariyah; the land was also rocky and on a ridge, and consequently had never been inhabited or cultivated. It was therefore clearly mewat land which belonged to the state and not to any private owners.
In light of these facts about land tenure in the West Bank, the flaws in the following key statement in Peace Now’s report should be apparent. The report states:
The “privately owned land” to which this report refers is:
A. Land that was registered and recognized as private property before 1968, at a time when the process of land registration was still open and available to Palestinians, or
B. Cultivated land which is recognized by Israel as private land according to the Ottoman law.
Land that was “registered … as private property” before 1968 was not so registered unless it was mulk land, as we have seen. The land Peace Now refers to, if it was registered at all, was registered as miri land, state land on which a certain party or parties had limited rights, and no more. To repeat, this is not private land – it is state land to which private individuals have been granted the equivalent of a leasehold.
In addition, in many cases land which had once been registered as miri had later fallen into disuse, and therefore even the limited rights had been extinguished. But it seems from the above that Peace Now considers all this land, if it was ever registered before 1968, still to be private Palestinian land.
There can be no doubt, however, that the majority of land that Peace Now calls “private Palestinian land” is in fact mewat, or waste land, and therefore permanently in the public domain, with not even rights to cultivate.
Finally, one must deal with Peace Now’s claim quoted above that since 1968 Palestinians have been unable to register land. This claim is utterly false – there are many examples of the Israeli authorities registering miri land to Palestinians on the basis of cultivation or similar use. One case the present author is familiar with involved a Palestinian farmer from the village of Beit Iksa who, according to a Israeli Supreme Court case was able to register more than 24 dunams (around six acres) of land on the basis of use:
… the appeals board reached a final conclusion, which it also displayed visually in a sketch that it attached to the decision, according to which 24 dunams and another 200 meters from the territory in dispute are territory that must be recognized as in the ownership of the petitioner. (Sabri Mahmoud Gharib v. 1. Board of Appeals and 2. The Authorit y over Abandoned and Government Property, High Court of Justice (277/84) 24 March 1986)
The bottom line is that even if Peace Now’s very questionable leaked data is technically accurate, its other “facts,” its analysis, and its conclusions are faulty, and therefore deserve little credibility.
If Peace Now continues to stand by its report it should release all the data it claims to have, which it has so far refused to do, and it should also provide the names of all the alleged owners of the land it claims was stolen. If it can’t name names, so that its very serious charges can be checked in detail in the Tabu, or land registry, it should publicly admit error and withdraw its report. And it should ensure that all the newspapers that splashed its claims on their respective front pages, print forthright corrections on those same front pages.