The State of Israel retained Ottoman law in the West Bank but offered a new, restrictive interpretation to these clauses. The aim is the dispossession
by Yigal Bronner – Mondoweiss
Rome, 13th of October 2016, Nena News – When Sa’id ‘Awad spotted the first pomegranate saplings popping up on his fields, he should have seen it coming. A part of him perhaps already understood that the long process threatening his land was nearing its logical conclusion; that the handful of tender trees would yield the poisoned fruit of dispossession. How could anyone possibly come to terms with this surreal state of affairs? But then it was precisely because Sa’id had fallen victim to a lawless invasion of the lands he, his father, and his father’s father had farmed that he could expect no help from the law. Sounds Kafkaesque? Welcome to Area C.
To understand the predicament of Sa’id’s family and of that of many of his fellow Palestinians, we have to go back in time and also to burrow beneath the surface of Israeli legalese. Sa’id lives in the South Hebron Hills, the arid hilly slopes that comprise the southernmost tip of the West Bank on the edge of the desert. Like Palestinian farmers throughout the region, he has farming rights over his family’s lands. These rights can be legally sold or transferred, but they fall short of actual ownership.
The reasons go back to the Ottoman Land Code, where the bulk of the region consisted of miri land, that is, land belonging to the Turkish Emir and designated to individual farmers for cultivation. During the British Mandate (1917-1948) and later, under Jordanian rule (1948-1967), government officials began a large-scale project of registration in the entire region under their control, in which they systematically listed the farmers as lawful owners, plot by plot. But in 1967, when Israel occupied the region, the military commander suspended this process in the West Bank, leaving about two-thirds of the region’s farmers without ownership rights over their lands. The process was never resumed.
There were serious implications to this decision. For one thing, the documents that establish user’s rights—tattered receipts for the payment of land tax (maliyah in Arabic) from the Ottoman, Jordanian, and British periods—are rather vague and come with nothing like accurate maps, let alone aerial photos. Without such detailed deeds, most Palestinians farmers find it difficult to establish their historical rights over plots that others claim as theirs. For another, a special clause of the Ottoman Law Code states that if miri land has not been cultivated for three consecutive years, it reverts to the Emir; another clause stipulates that if the farmer has cultivated a plot for ten consecutive years, he can register as its legal user. The state of Israel retained Ottoman law in the West Bank but offered a new, restrictive interpretation to these clauses. For example, in the past, farmers could be granted user’s rights over outcrop land that allows only sparse cultivation, if they consistently used portions of it, regardless of the exact percentage– whereas Israel now demanded proof that at least 50% of every plot was cultivated. Moreover, land deemed a priori unfit for agricultural use, primarily the hillier parts of the region, now became State Land by definition, regardless of actual use, and reverted, initially on paper, to the Israeli Emir. In a massive project carried out throughout the 1980’s, Israel combed the region and declared 750,000 dunams, about 14% of the entire West Bank, to be State Lands. Almost overnight, Sa’id’s family lost a sizable portion of its lands. Significantly, the newly declared miri lands were areas used for an activity that was the key to his family’s survival: grazing of sheep.
In theory, the state of Israel, now the largest landlord in the area, could have used its newly created vast reserve of land to benefit its inhabitants. In fact, according to international law, this was what it had to do as an occupier whose responsibilities were to protect the civilian population under its rule. But in gross violation of international laws and standards, all this land was allotted to the new Jewish settlements that began to reshape the region radically in the 1980s. Some of the newly declared “state lands” were used for building the first round of settlements, while others were allotted to them for future use, even when they were non-contiguous with the settlements to which they were connected.
Despite repeated requests, the Israeli government has refused to release any data about the proportion of state land allotted to Palestinians in the West Bank, but documents that came to light when several Israeli human rights organizations took the state to court show their share is a statistical zero. The lands belonging to Sa’id’s family were allotted to the settlements of Susya and Ma’on, some miles away. In the 1980’s, when Israel was busy building the hard core of these settlements, Sa’id’s sheep still happily grazed their familiar grounds in Um al ‘Arais. But change was coming, and it was coming fast.
The 1990s marked a new phase in Sa’id’s struggle. These were the years when Israel and the PLO signed treaties, and peace was supposedly around the corner. The Oslo Accord divided the West Bank into different administrative zones. The newly established Palestinian Authority (PA) was given administrative and security powers in densely populated enclaves (Areas A and B, comprising 39% of the West Bank), but Israel retained these powers in the bulk of the West Bank (Area C), where the vast majority of open and agricultural lands were concentrated. Most of this land was unregistered.
These arrangements were, in theory, temporary, as Israel was allegedly negotiating peace with the Palestinians. But on the ground, the land-grab in Palestine’s only land reserve began in earnest. This was the time that Israel created a whole new series of settlement “outposts,” many of them on the plots that in the 80’s it had declared state lands. One of these outposts was encroaching on Sa’id’s property.
Another decade passed, and in the early 2000s the early outposts began to generate secondary outposts, illegal even by Israeli standards. But illegal or not, the new outposts were located on exactly the same state lands that were declared as such in the 80’s and allotted to distant settlements; they were quickly connected to the road- and electricity grids, and the army was posted around them for protection. Indeed, the new settlers, always armed and often violent, were the law, not unlike sheriffs in the Wild West. One of these secondary outposts materialized on Sa’id’s family lands, on the hilltop of Um al ‘Arais, where his sheep used to graze. That land was gone, and more trouble was coming.
Throughout Area C, the new method for taking over land was brutal and simple. Settlers, typically from the so-called “illegal outposts,” walked freely into lands farmed by Palestinians and planted their own crops. When the Palestinian farmers arrived, they were threatened, beaten, and in some cases shot (either by settlers or by soldiers acting on their behalf). The authorities were called in, and the invaded plot was immediately declared “contested.” In theory, this meant that everyone was barred from accessing the land; but in practice, this rule applied only to Palestinians, while the settlers stayed on without hindrance.
Moreover, the burden of proof rested entirely on the Palestinian farmers. They had to raise funds, hire lawyers, and convince the all-Israeli legal system with their frail Ottoman tax receipts and faulty maps that they had always tilled their land. If they failed to so, the new “status quo” remained in force and the farmers were barred from their plots, which in practice meant that they were up for grabs for the settlers, even though the latter were obviously newcomers. All the while, as long as the dispute was taking its course through the courts and the offices of the Civil Administration (that is, the Occupation authority), the settlers had the plot all to themselves, and the Palestinians had to find other ways to make ends meet.
And the clock was ticking, because, by another clause of Israeli law, Palestinians could ask for the removal of invaders only up to five years from the date of the invasion. In theory, this rule was initially meant to protect the farmers, but the authorities have proved extremely reluctant to actually use it. And once five years had passed, and in some cases even as court deliberations were still ongoing, the Civil Administration could claim it no longer had the power to remove the invading settlers, who thus became the de facto owners.
Here is what happened to Sa’id. Settlers started to climb down from the hilltop outpost placed on his grazing grounds and to plant trees in the fields that his family had farmed for generations. A few trees were enough to make a claim. The land was now “contested,” and Sa’id was barred from it. He could only watch a plethora of greenhouses pop up near the outpost and, further downhill, see how crops planted by others were growing in his fields. Appeals were made to the Civil Administration and to the Israeli courts.
For a while it looked as if the legal battle might even succeed. The court decreed that the greenhouses were built without proper permits, and after what seemed like endless delays they were taken down and the settlers were told to reapply for permits. But the Civil Administration found that the settlers had proved “consistent usage” of the “contested plots.” Matters were taken to Israel’s Supreme Court, whose judges found an ingenious way of deciding in favor the settlers without really having to decide. In a series of verdicts beginning in 2015, they stated that they trust the impartiality and professional authority of the Civil Administration in cases of contested lands, and that they would not examine or second-guess its decisions.
So, by the decree of the Civil Administration, now given carte blanche by the highest court in Israel, it was decided that precisely because his land was illegally invaded by settlers, Sa’id ‘Awad had no recourse to the law. A sizeable portion of his lands is already officially in the hands of the outpost’s settlers, and given the effective nature of their salami tactics, there is nothing to stop them from grabbing the remainder.
To understand the absurdity of the Supreme Court ruling one has to keep in mind the big picture. For nearly five decades, the raison d’être of Israel’s administration in the occupied territories has been to take as much land as possible from Palestinians and hand it over to Jewish settlers. This has been the policy historically, and it is now also the explicit agenda of key members in the Netanyahu coalition. For example, the official platform of Naftali Bennet’s party, “The Jewish Home,” is to annex Area C to Israel, hopefully with as few Palestinians and as many free dunams as possible. It is not by chance that since the beginning of 2016, the number of demolitions and expulsions in Area C has increased dramatically.
Invading Palestinian fields, like demolishing their homes and destroying their wells (these tactics are also on a steep rise), is another way of freeing up land for settlers. Had my home in Jerusalem been illegally invaded, I could, under Israeli law, use reasonable force to evict the invader, and, failing that, I’d have recourse to the law. Not so for Sa’id, just 40 miles away in the South Hebron Hills, but still in Ottoman time zone. Remember: he is not the citizen of any state.
There is no police to protect him, no soldiers were conscripted to ensure his security, and the number of Palestinian judges who come from the South Hebron Hills (or the entirety of occupied Palestine, for that matter) is, of course, zero. And then there is the Civil Administration, a branch of the Israeli military, put in charge of implementing the machinery of dispossession by the new Emir. The idea that this organization can be trusted for its honesty and impartiality has an undeniable aesthetic punch, one that Franz Kafka would have appreciated.
There has been a considerable turnaround in the outpost founded on Sa’id’s land. First there was a certain Yohanan, who no longer lives in the area; then a Dalia, and finally a Mordechai. Each of them, in turn, contested the same plots of the indefatigable Sa’id. But this turnover is somehow meaningless as far as the “contested” category is concerned. And you can see the logic. If the sole purpose of the Civil Administration is to take land away from the occupied population and give it to the settlers, the identity of the individual settler is immaterial. Rather, it is the collective that counts.
Sa’id ‘Awad’s story is not the tale of a citizen who inadvertently found himself one day living next to a violent neighbor; he is not in a situation where a he can call in a cop, or an honest administrator, or appeal for justice and protection from the law. The settler, the soldier, and the civil administrator are part of the same machinery. They join forces to dispossess him of what little he had. This is not just legal but also normal, almost a law of nature. No wonder the court saw no reason to intervene.
So this is where things stand. Sa’id has nowhere to go. He is practicing what Palestinians call sumud, “steadfast resistance,” on his own land, or whatever is left of it. And he is not alone; indeed, his story is paradigmatic of a farmer’s life in the occupied territories. Although Sa’id is a man of remarkable resilience and optimism, entirely committed to non-violent resistance, he has no real recourse to the law, just as he has no vote and no say in what the occupation system is doing to him and to many thousands like him. Meanwhile, Palestinian land reserves in Area C are vanishing, literally hour by hour.