Reena Ninan, Fox News charge Israeli land discrimination

Does Israel practice “pretty intense discrimination against Palestinians” who want to buy a home in Jerusalem? That was the assertion in a FoxNews segment originally aired on July 10, and repeated at least three times in the following days. Reported by Fox’s Jerusalem correspondent Reena Ninan, the charge was based on “a new study published by the Israeli NGO Ir Amim.” According to Ninan, the study showed:

that 80% of land in Jerusalem is marked for Jewish neighborhoods and cannot be purchased by Palestinians, debunking comments from the Israeli Prime Minister Benjamin Netanyahu and the Mayor of Jerusalem Nir Barkat who say the Jerusalem real-estate market is free and open to anyone regardless of national or religious identity.

Here’s a video clip of the relevant portions of Ninan’s report:

Now, the Ir Amim report, Jerusalem: An Open City?, does indeed make more-or-less that assertion:

Therefore, of all the land designated for housing development in West Jerusalem and in the Israeli neighborhoods in East Jerusalem (35,000 dunams), at least 79% (27,642 dunams) is ILA land, and therefore theoretically off limits to the city's Palestinian residents.

But Ir Amim's claims are false, and Ninan’s report is wrong, though to understand why requires some background. First, on the general topic of land ownership in Israel (more details can be found here and here), about 80 percent of the land in Israel is owned by the government. In part this is due to geography – half of Israel is the Negev, which is mostly desert, and the desert is usually owned by the government (this is true in the United States also, for example in the desert southwest).

Moreover, Israel began as a socialist country, so government ownership of industries, banks and land was the norm. In order to administer government and related land holdings, in 1960 the Israel Land Administration (or ILA) was created. While Israeli industries and banks have mostly been sold off, privatization of government land has been underway only since August 2009.

It is still true today in Israel that many homes or apartments are built on government land, and the homeowner doesn't actually own the land, though Israelis will often refer to "buying" the land. Instead of buying, however, they are actually paying the ILA for a long-term so-called capital lease, with the cost supposedly determined by the value of the land. The term of the renewable lease would usually be as long as 49 years.

Ir Amim's claim, recounted by Fox News, is that the ILA restricts such leases to Israeli citizens (meaning Jewish, Arab and other citizens), or foreigners who are Jewish. And unlike Israeli Arabs, Palestinians from East Jerusalem are generally legal residents of Israel but not citizens, and supposedly would not have access to such land.

To quote directly from the Ir Amim report:

An ILA leasing contract is restricted to people who are citizens of Israel or who are entitled to become citizens under the Law of Return (namely, Diaspora Jews). The Palestinian residents of East Jerusalem, who are not citizens of Israel but rather have the status of permanent residents, are not entitled, therefore, to lease ILA land. (page 3)

... article 19 of the ILA leasing contract says that the lessee, or the party on behalf of which the lessee is acting, being a foreign national (i.e., not an Israeli citizen, and not someone with the potential to become an Israeli citizen under the Law of Return) "is considered a fundamental breach of the contract for which the lessor is entitled to cancel the contract." (page 7)

While the terms of the standard ILA lease might seem to support Ir Amim’s claim, this is only because crucial information available on the ILA website has been omitted. Here are the full details.

First, Article 14(c) of the ILA Standard Lease Terms provides that “the ILA has the right not to consent to an assignment of rights to a person who is a foreign subject under Section 19(a)(3) . . .”

And Section 19(a)(3) defines a “foreign subject” to mean anyone who is not (1) an Israeli Citizen, or (2), a person entitled to emigrate to Israel under the Law of Return, or (3), a company controlled by an Israeli Citizen or person entitled to emigrate to Israel under the Law of Return.

So why is Ir Amim wrong? Because the ILA also has regulations which say that for its purposes Israeli residents are not foreigners, and this effectively trumps the older lease terms cited by Ir Amim and Fox News.

According to ILA Council Decision 1148 (March 3, 2008) and the ILA guidelines implementing that decision, for the purposes of leasing land Israeli residents are treated just like Israeli citizens and are not considered to be foreigners. Here is an exact translation of the relevant section of those guidelines:

uote class="nopadding" >

1. Definitions


1.1 An individual not of the following:

1.1.1 A citizen and/or resident of Israel

1.1.2 An immigrant according to the Law of Return (1950), which complies with section 2 of the Citizenship Law (1952).

1.1.3 One who qualifies for an immigrant visa or immigrant card according to the Law of Return (1950), and has received, in its place, a visa and license for temporary immigration as is determined in the Entrance to Israel Law (1952). [emphasis added]

(Here are links to very loose Google translations of Council Decision 1148 and the implementing guidelines.)

That is, under ILA rules and guidelines, legal residents of Israel, including Palestinian residents, are treated exactly the same as citizens of Israel. And, as even Ir Amim admits, Palestinian residents of East Jerusalem are Israeli residents.

But what about the evident conflict between the ILA guidelines and the ILA lease? That's covered by Section 1 of ILA Guidelines 36.21, which provides that if the rules under the current ILA guidelines for transferring rights differ from the rules under a prior lease, the lessee can choose whether to go by the lease or the guidelines. (Loose Google translation of these guidelines are available here.)

What does this mean? Consider a person trying to sell his home, where his prospective buyer is an Israeli resident rather than a citizen, and his lease predates Council Decision 1148. Would the seller kill his own deal by invoking Article 19 of the lease? The answer is obviously no – he would exercise his choice to go by the ILA Guidelines, and there would be no problem in completing the sale to an Israeli resident.

This is for a lease that was signed before Council Decision 1148, what about a lease that was signed after the decision? A new lease must conform to standard terms and conditions in effect with the ILA at the time of the lease, meaning the lessee would not even have a choice in this case, and the ILA guidelines would automatically apply.

Finally, there is the charge Ninan leveled at the conclusion of her report, that when Fox News requested an interview with the Mayor of Jerusalem, the response was a rather harsh refusal:

NINAN: Fox News requested an interview with the Mayor of Jerusalem, we were told quote "Don't (expletive bleeped out) us around for an interview,and that the mayor was unavailable until August.

Asked about this, and Ninan's report in general, a spokesman for the Mayor told CAMERA:

The accusations that such language was used by an employee of the Municipality of Jerusalem is false. The piece mischaracterizes the policies of the Municipality of Jerusalem and the Mayor.

Perhaps Ninan or Eli Fastman, who actually heads the Fox Jerusalem Bureau, should disclose which person in the Mayor's office they spoke to.

More importantly, whether the Mayor's office rebuffed them or not, since the charges originated with Ir Amim, an NGO, why didn't Fox ask for a response from other NGO's with real expertise regarding Jerusalem, such as the Jerusalem Institute for Israel Studies?

The bottom line is that the Ir Amim report is wrong, Palestinians who are Israeli residents but not Israeli citizens can and do legally live on ILA land. The supposed legal experts at Ir Amim who should have known the rules and laws involved, either didn't know or didn't want their readers to know. (For more on Ir Amim's radical anti-Israel agenda and its largely foreign funding, see the NGO Monitor analysis.)

Fox News was duped by Ir Amim and should forthrightly and publicly correct its false report, and should be much more careful in the future before believing the claims of Ir Amim and other activist groups like it.

Additional Information

1. A common propaganda charge is that 93% of the land in Israel is controlled by the state and can be leased to Jews only. Noam Chomsky, for example, claimed this in his book Fateful Triangle (updated 1999 edition, p. 483), and there are countless other books, articles and websites that repeat the charge. It is to refute those claims that I wrote the articles cited above, Land, the Palestinian Authority, and Israel and Can Arabs Buy Land in Israel?

Perhaps it is a sign of progress that now the propaganda charge is that while Arab citizens do have access to state land, Arab residents of Israel supposedly do not.

2. Even Ir Amim admits that despite its claims, the reality is that Palestinian residents are able to lease and live on state land:

On the other hand, despite the restrictions cited in the ILA leasing contract, they are not always actually enforced and in many case s the Palestinian buyer's blue identity card is sufficient to close the deal, without his status as a resident, rather than citizen, being investigated and posing an obstacle to the process. But even when such a transaction is completed, the danger of cancellation will always hover over it, because [of] article 19 of the ILA leasing contract ... (page 7)

This, of course, leads to an obvious question that seems to have been missed by Ir Amim. If what they say is true, can they name any Palestinian residents who had ILA leases that were then cancelled because they were residents rather than citizens?

3. It is important to note that under the ILA guidelines foreigners are not barred from leasing state land – it is just that the approval process is more involved than for a resident or citizen.

Under the Guidelines, acquisition or transfer of rights to foreign (or foreign-controlled) entities must be approved by the ILA Council Subcommittee. However, transfers of rights to (a) foreign companies recommended by the Israeli Investment Committee (Par. A) or (b) to foreign individuals purchasing a single residential property are subject to the (less cumbersome) approval of the local ILA Manager (Par. B of the Guidelines).

4. Under land reform passed in August 2009 the state will be selling off much of its land holdings, and people whose homes stand on a small plot will simply receive ownership outright, since they've already paid the ILA for a capital lease on the land. In other words, arguments over what is or is not in ILA leases and guidelines will soon be moot.

Finally, thanks to Ricki Hollander, Monica Cooper, Gilead Ini and Noam Blum for translations, and to Israeli attorney LS for translations and legal analysis. 

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