The recent decision of the Israeli Supreme Court in the landmark Qaadan case could be the first step in abandoning a hugely discriminatory land policy. On the formation of the state of Israel, the Israeli Supreme Court established an Israeli land regime, a system devoted to the Zionist aim of Judaising Israeli space and society1. Like other settler states, Israel initiated a comprehensive land and settlement policy, resting on new, powerful legislation that transferred land use, control and ownership into Jewish-Israeli hands. There were two major aspects to this: nationalisation of public and Palestinian land; and selective allocation of land possession rights within the Jewish population.
At the end of the Israeli War of Independence, land officially owned by the state and Jewish individuals and organisations amounted to around 13.5% of the country2. The state then fashioned a national-collectivist land regime, rapidly and systematically expanding the land in its control3. By the 1960s, approximately 93% of Israeli territory was owned or controlled by public and Jewish institutions aggregated together into Mekarkei Israel (lands of Israel).4 Land nationalisation took place through two major channels. In the first place, Palestinian land was seized through the military, administrative and legal sovereign powers of Israel. The property of Palestinian refugees was transferred to public/Jewish ownership. In addition, Palestinians who remained and became Israeli citizens lost 40- 60% of the land they possessed.5
Demographic threat The second aspect of nationalisation concerned the formal registration of all British Mandate land as belonging to the state of Israel. Much of the millions of dunams thus transferred to state ownership during this process had hitherto been unregistered, but indeed legally belonged to the state. However, additional land was transferred from its Palestinian and Bedouin landholders as a result of crafty changes in land possession rules, mainly those concerning mewat ('dead' land) and adverse possession.6 Thus, Palestinian land served as a major source in the making of the Israeli land regime.
Another factor was the allocation of possession (not ownership) of much of the land now belonging to mekarkei Israel. The possession of this public land (including Palestinian land transferred to it) was allocated to Jewish residents and settlements.7 Rural land was allocated principally to kibbutzim and moshavim, while Palestinians were excluded from the complex allocation system.8 A different classification of possessory land rights into distinctive spatial/legal categories allowed for discriminatory rules, while simultaneously maintaining a feasible façade.
On the basis of this system, during the late 1970s, Israel developed a new type of settlement, the mitzpim (lookouts). A major motivating force for the establishment of the mitzpim has been the desire to Judaise Galilee. This region was perceived as representing a ‘demographic threat’, because of the high proportion of Palestinians residing in the area, and its proximity to the northern border.
Complex allocation rules The mitzpim were established in strategic locations in order to promote Jewish presence in the area and prevent Palestinian ‘encroachment’ on public land. Such settlements offered high-quality suburban homes at subsidised prices to induce Jews to move to the Galilee.9 The mitzpim then expanded into additional Israeli regions, becoming known as ‘community settlements'. Katzir was established in this way, in an area densely populated by Palestinians and bordering the 1967 Green Line.
In order to exclude Palestinians from the community settlements, a sophisticated system evolved, with Jews receiving public land in these areas through complex allocation procedures. Initially, the whole settlement was assigned through a system known as the ‘three-party lease’. According to this arrangement, three parties sign the initial land allocation contract: Israel Land Administration (ILA) as the public landowners agent;10 the Jewish Agency; and the Jewish settlement as a collective (its legal entity is a cooperative). In order to lease (normally at a subsidised price and sometimes free of charge) an individual plot of land in such a settlement, a person must be accepted as a member of cooperative that incorporates all residents of the community. The cooperative (often with participation of the Jewish Agency) has the power of selection and of veto. This delegation of state power, the major rationale of which is to deny Palestinians access to land, also serves to preserve the mainly middle class character of these settlements.
------------------------------------------------------- Supreme Court Decision: Qaadan vs. Katzir
The state of Israel allocated land to the Jewish Agency in order to establish Katzir.11 This so-called community settlement was founded in 1982, in the Wadi Ara (Nahal Eiron) region. In 1995, the Qaadans, a Palestinian-Israeli family, attempted to acquire land in Katzir, but failed to do so.
In October 1995, the Association of Civil Rights in Israel (ACRI), which represents the Qaadans, petitioned the Supreme Court.12 The court made many attempts to convince the parties to find an out-of-court solution. Finally, after five years of failed attempts, a four-to-one majority ruled in favour of the Qaadans family.13 Chief Justice Barak, with Justices Zamir, Or and Cheshin ruled that the state could not “allocate State land to the Jewish Agency for the establishment of the Katzir community settlement on the basis of discrimination between Jews and non Jews”.14
An essential shift This was a landmark ruling. Until the Supreme Court’s decision on Qaadan v. Katzir, Palestinians could not acquire land in any of the hundreds of settlements of this kind existing in Israel. A sophisticated discriminatory procedure, involving the State, the Jewish National Fund (JNF), the Israel Land Administration (ILA), the Jewish Agency, and community cooperatives guaranteed the ethno-national purity of these settlements.
The case represents an essential shift in the court's position. It signals a transition from a collective court with a settler mentality to a more individualistic and ‘liberal’ jurisprudence. Nevertheless, it is not a categorical transformation, but a big step, from the Jewish/Zionist position towards the democratic position within the ‘Jewish-Democratic State’ legal tenet. Moreover, the Qaadan case is a forward-looking precedent, which endeavours to draw a line: accepting past practices, while initiating “a first step in a difficult and sensitive road”. This road simultaneously embodies considerable promises and significant drawbacks.
Looking ahead Significantly, the case interferes with the discriminatory land allocation component of the Israeli land regime and offers a narrow reading of the Jewish part in the Jewish-Democratic legal paradigm. It expands the ‘democratic’ side and elevates equality into a fundamental legal principle that confronts the ethnocentric dimensions of Israel's ‘Jewishness’. It unmakes and dismantles many, though not all, of the potent legal devices used in the past to discriminate against Palestinians in land issues.
I believe that the Qaadan case could lead to various situations. The Knesset could attempt to override the decision, and further discriminatory practices could be invented. Furthermore, notwithstanding its individualist outlook, and while it could lead to the establishment of shared Jewish and Palestinian settlements, it is more likely that the case would actually lead to a more equal distribution of land to Palestinian communities. To prevent Palestinians from migrating to Jewish settlements, it is likely that the State and ILA would allocate land to existing Palestinian localities, and even for the establishment of new ones.15 It could also serve as a precedent in petitions demanding the allocation of land for Palestinian settlements.
16 See for example Globes, April 11, 2000 at p. 30 reporting that Israeli authorities are considering the allocation of land for Palestinian villages, and even the establishment of a new Palestinian city, as a reaction to Qaadan. See also Prof. Amieam Gonen, "From Bitter will maybe Emerge Sweet". Globes, 30/3/00.
1 See Oren Yiftachel and Alexandre (Sandy) Kedar "Landed Power: The Making of the Israeli Land Regime"(in Hebrew) Theory and Criticism 16 (2000):67-100.
2 For details see Yiftachel and Kedar, 2000. R. Kark, "Planning, Housing and Land Policy 1948-1952: The Formation of Concepts and Governmental Frameworks"in Israel- The First Decade of Independence, eds. I.Troen and N. Lucas(Albany:State University of New York Press, 1995),461,478.
3 Alexandre (Sandy) Kedar, "Minority Time, Majority Time: Land, Nation, and the Law of Adverse Possession in Israel" (in Hebrew), Tel Aviv University Law Review 21(3)(1998):665,681-682; Yiftachel and Kedar, 2000, at p.78.
4 That is the State, The development Authority and the Jewish National Fund, which form together "Israel Land" see section 1. of Basic Law: Lands of Israel (1960).
5 Hillel Cohen, Present Absentees: The Palestinian Refugees in Israel since 1948 at 100 (2000). Yiftachel and Kedar, 2000.
6 See Alexandre (Sandy) Kedar, Israeli Law and the Redemption of Palestinian Land, 1948-1969, SJD, (Law school, Harvard, 1996); Kedar 1998, p.686; Alexandre (Sandy) Kedar, “The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian * Landholder 1948-1967", 33 (4) NYU J. Of International Law and Politics, 923-1000 (2001);Ronen Shamir, "Suspended in Space: Beduins under the Law of Israel", Law and Society Review 30 (1996):23.
7 The ethnic logic of the system functioned mainly to remove Palestinians from the land.Yet, typical to an ethnocratic regime, it had an impact on stratification and fragmentation within the Jewish sector as well. See Oren Yiftachel, Nation-Building and National Land: Social and Legal Dimentions', Iyunei Mishpat, 21:637-664 (Hebrew, 1998).
8 At late as 1995, Palestinian citizens of Israel were allocated approximately 0.25% of all bublic land. Yiftachel and Kedar, 2000.
9 See Oren Yiftachel, "Power Disparities in Planning of a Mixed Region: Palestinians and Jews in the Galilee, Israel "Urban Studies" vol. 30(1)157-182. (1993).
10 That is the agemt of Mekarkei Israel (the State, The development Authority or the Jewish National Fund).
11 The land is owned by the State and is allocated to the Jewish Agency, in a renewable lease. Par 1-2.
12 See Moshe Reinfeld "Bagaz Recommends to find an 'Appropriate Solution' to the Palestinian Couple desire to Acquire Land in Katzir"Haaretz 18/2/98; Michael Goldberg, "Today the window of Equality has Opened" Yediot Aharonot 9/3/00.
13 Justice Kedmy was in the minority. This article addresses only the majority opinion.
14 Justice Cheshin wrote a short separate opinion but agreed to the ruling of Barak.