Ottoman Land Law and apportionment in
Palestine-Israel - Government owned over 92 percent of the Land - YJ Draiman
To truly understand the
status of this territory in Israel State Land Israel Israel
For many, if not most,
around the world, every inch of land beyond the 1949 armistice lines is
incorrectly thought to be automatically Palestinian; a display of unfamiliarity
with history, international law and executed international treaties of post
WWI.
To truly understand the
status of this territory in Greater Israel
Of course there is limited
land privately owned by Arab-Palestinians in Judea and
Samaria West Bank ” in
seeming deference to the Jordanian occupation, which invented the term as
juxtaposition to its eastern bank. These areas, like privately owned territory
anywhere in the world, cannot be touched unless there is very pressing reason
for a government or sovereign power to do so under the tern known as
"eminent domain". These areas, according to Ottoman and British
records, constitute no more than a very few percent of the total area of Palestine Palestine
However, to contend that
these territories are “Arab-Palestinian” on a national level is more than
problematic and seems intentionally deceptive. To claim an area belongs to a
particular nation requires the territory to have belonged to that people, where
they held some sort of sovereignty that was broadly recognized.
All of these criteria have
been met historically by the Jewish people, and none by the Arab-Palestinians.
In the January 1919 Faisal Weizmann Agreement it was stated that Palestine
In fact, the Jewish people
were provided with national rights in these territories not just by dint of
history and past sovereignty, but also by residual legal rights contained in
the San Remo Resolution of April 1920 confirmed by the August 1920 Treaty of
Sevres Article 95 and Lausanne adopted by the League of Nations as the Mandate
for Palestine, which were never canceled and are preserved by the UN Charter,
under Article 80 – the famous “Palestine Clause,” that was drafted, in part, to
guarantee continuity with respect to Jewish rights from the League of Nations.
It must be understood that the League of Nation and the UN nor the ICJ cannot
over-ride and supersede international law and treaties. The UN can only recommend under its
resolutions and those recommendations must be accepted by all the parties or
those recommendations are meaningless. The Arabs have continuously rejected all
resolutions of apportionment of the land and therefore all those UN resolutions
which are recommendations only have no affect whatsoever.
For the past over 2,800
years, since the destruction of the Jewish temple and the loss of Jewish
sovereignty in the land of Israel and the expulsion of many of its indigenous
people, it remained under an enemy control and occupied as an outpost in the
territory of many global and regional empires.
The Ottomans were the most
recent to officially apportion the territory, in what they
referred to as Ottoman Syria, which today incorporates modern-day Israel,
Syria, Jordan and stretching into Iraq. Before The Ottoman Land Code of 1858,
land had largely been owned or passed on by word of mouth, custom or tradition.
Under the Ottomans of the 19th century, land was apportioned into three main
categories: Mulk, Miri and Mawat.
Mulk was
the only territory that was privately owned in the common sense of the term,
and as stated before, was only a minimal part of the whole territory, much of
it owned by Jews, who were given the right to own land under ottoman reforms.
Miri was
land owned by the sovereign, and individuals could purchase a deed to cultivate
this land and pay a tithe to the government, which is the same as
sharecroppers. Ownership to cultivate could be transferred only with the
approval of the state. Miri rights could be transferred to heirs, and the
land could be sub-let to tenants. In other words, a similar arrangement to a
tenant in an apartment or house as having rights in the property, but not the
title to the property.
Finally, Mawat was
state or unclaimed land, not owned by private individuals nor largely
cultivated. These areas made up almost two-thirds of all territory in Palestine
The area recently declared “State Land
Many claims to the territory
suddenly arose during the course of the investigation, but all were proven to
be unfounded on the basis of land laws.
Interestingly, it should be
clearly understood by those who deem Judea and Samaria liberated “occupied
territory” that according to international law the liberating occupying power
must use the pre-existing land laws as a basis for claims, exactly as Israel
has done in this case, even though Israel’s official position is that it does
not see itself de jure as an occupying power in the legal sense of the term. It
is only a liberator of its historical ancestral land.
None of these facts are even
alluded to in the many reports surrounding the government’s actions in
settlement and housing. This is deeply unjust and a semblance of the relevant
background, history and facts would provide the necessary context for what has
been converted into an international incident where none should exist.
Many nations and people are
questioning Israel Israel
Ottoman Land
https://www.blogger.com/nullhttps://www.blogger.com/nullhttp://www.beki.org/dvartorah/landlaw/https://www.blogger.com/null2
The Ottoman
Land Code and Registration Laws of 1858 and 1859 contributed to the conflict
between Jews and Arabs in Palestine Israel
https://www.blogger.com/nullIntent and Provisions of the
Land Laws
The Ottoman
Land Code of 21 April 1858 defined five
classes of land ownership: ملك milk,
وقف waqf,
ميري mīrī,
متروك matrūk and
موات mawāt. Milk is
"land in unrestricted private ownership," land for which the raqaba(paramount
ownership) is vested in the individual.1 What little milk there
was in Palestine was mostly "plots of land which had at the time of
distribution [by Muslim conquerors] been assigned to unbelievers…."2 Waqfincludes land
"dedicated to a religious purpose" — theoretically owned by God — and
administered or held in trust by a stipulated party such as a religious
council.3
For mīrī, matrūk and mawāt,
the raqaba is vested in the hands of the state. Mīrī is
cultivated or cultivatable land acquired for the state through conquest or
through forfeiture of milk due to a failure of heirs. An
individual could gain rights over mīrī land by cultivating
it and paying taxes; but the state continued to regulate its transfer and
improvement. The tenant’s rights to mīrī were forfeited by
failure to cultivate the land; such forfeited land is termedmaḥlūl. In
practice, neither the Ottomans nor the British ever repossessed maḥlūl.4 Mīrī included
"by far the largest portion of the landed property in Palestine
Mawāt is
wasteland which an individual could (until 1858) turn into milk with
the permission of the sultan and (until 1921) turn into mīrī by
cultivating it for a given period of time and paying for it.8
According to
Abraham Granott, "The object of the law of 1858, which dealt primarily
with these three classes of property [viz., mīrī, matrūk and mawāt],
was to maintain the rights of the State over them."9 Similarly, Robert H. Eisenman
asserts that the "principle aim" of the Land Code of 1858 "was
the reassertion of Government control over State Domain…." 10 The concept of state ownership
of land was in fact an idea in Islamic law which however central was
nonetheless often "ambiguous and unclear." 11
In contrast,
Justice Tute contends that after the abolition of the "feudal conditions"
in the Ottoman land revenue system after 1839, a confiscatory and corrupt
system of tax-farming emerged which harmed the tenants and reduced state
revenues.12 "It
was…to restore the prosperity of the agriculturalists," writes Tute,
"that the Land Code of 1858 was framed. …It is clear that this legislation
could only be given effect to by setting up a system of land
registration." 13
The Land Code
of 1858 was thus soon followed by the Tapu Law of 14 December 1858 which provided for the issuance of
title-deeds. "Procedures for registration, not only of old title, but also
of transfers, inheritance, vivification of mewat, the auction of maḥlūl,
and prior purchase…were dealt with in the Tapu Law."14 The Tapu Seneds Law, issued in
1859, provided that "No one in the future for any reason whatsoever will
be able to possess mīrī without a title-deed."15
https://www.blogger.com/nullEffects of the Land Laws
The provisions
requiring registration, however, were "extensively ignored."16 The peasants were
semi-literate and accustomed to a traditional society in which custom and oral
evidence were sufficient to support an individual’s claim to property. 17 Landholders saw no great need
to register their claim and often did so only when they wanted to sell it to
another party. 18
Indeed, the
peasants had strong incentives to not register or to under-register their land.
One incentive was the tradition of mistrust of or opposition to government —
what Granott calls the "indolence which characterizes the peasants’
attitude towards official regulations" — and the desire to avoid granting
unnecessary legitimization to the government.19 A second incentive was evasion
of current and potential taxes on registered property. 20 A third incentive to avoid
registration was evasion of registration fees 21 or penalties and fines
for late registration.22 A fourth incentive was evasion
of military conscription based on or traced through land holdings. 23
Making matters
worse, the land was registered piecemeal — that is, the status of a tract of
land was recorded only when the owner had it registered. There was no cadastral
survey,24 and
"in most cases there were no measurements or maps and it was impossible to
determine the boundaries of the properties."25 Claims to disputed lands
brought later were therefore all the more difficult to prove.
Hence land was
often not registered in the name of its "rightful owner." As long as
the peasants were able to continue working their land, the registration did not
concern them. But the problems arose not just because the land was not
registered; they arose also because the land was often registered in the name
of someone other than the rightful owner. This occurred several ways.
The widespread
practice of mushā` (collective land tenure) led to
misregistration. Often a community’s lands were registered in the names of a
few individuals or even in the name of just one individual.26 Later, under the British
Mandate, matrūk was often registered in the name of the High Commissioner.27
The effect of
these registration laws have been described as "catastrophic."28 The practice of registering
land in the name of a fictitious or dead individual, and the inexact and
incomplete nature of the records made the peasant’s claim to tenure insecure.
Worst of all perhaps was the fact that local town merchants or city magnates
often filed whole villages or series of villages in their own names. "The
entrusting of the implementation of the [Ottoman Land Palestine
https://www.blogger.com/nullImplications for Jewish-Arab
relations
The
registration laws and the corollary concentration of land-title holdings
contributed to the conflict between Jews and Arabs in several ways. Eisenman
notes that the frequent failure of individuals to gain recognition of their
land rights (when eventually they discovered they needed such recognition) was
an important root of "hostile sentiments and antagonisms that were later
to erupt between Arabs and Jews during the Mandate."32
These
"hostile sentiments and antagonisms" developed not merely as a result
of the "numerous and prolonged lawsuits" fought over land ownership33 but even more directly
as a result of the eviction of hundreds of tenant families from lands they
considered their own when large landholders sold their holdings to Jews. Most
of the two million dunams (200,000 hectares) of land owned by Jews at the end
of the Mandate were acquired through purchases from large landowners. As John
Ruedy notes, "The land expert representing the Jewish Agency before the
Shaw Commission of 1929 claimed that 90% of lands bought up to that time came
from absentee landlords. During the 1930s the proportion fell to 80%. In the
last decade of the mandate they were about 73%."34 Further, the British
prohibition on land ownership by Jews in Palestine Jordan River served to
concentrate and thereby intensify the effect of land purchases by Jews in Palestine Jordan River .35
The
"hostile sentiments and antagonisms" developed moreover from a
general and growing awareness among Palestinian Arabs of the alienation of
their homeland. While many forces contributed to the growth of national
consciousness and nationalism among Palestinian Arabs, it is sufficient to note
here that the alienation of land in the scope and manner of its occurrence was
one significant factor. "Prohibition of the transfer of Arab lands to
Jews" was one of the three main "November Demands" put forward
by the Palestinian Arabs’ "United Front" before the revolt of 1936.36
In 1948 the
Israeli Government took over all British Government Lands in the area of Palestine Palestine
The Ottoman
Land Codes and Laws of 1858 and 1859, then, were issued in order to assure
state control over the lands of Palestine Palestine Israel
http://www.passia.org/palestine_facts/MAPS/1923-1948-british-mandate.htmlThumbnail of Map the British Mandate of Palestine as depicted by thePalestinian
Academic Society for the Study of International Affairs. For large map see “http://www.passia.org/
palestine_facts/MAPS/
1923-1948-british-mandate.html”.
palestine_facts/MAPS/
1923-1948-british-mandate.html”.
Notes
https://www.blogger.com/null1 Abraham
Granott, The Land System in Palestine — History and Structure,
translated by M. Simon, (London
https://www.blogger.com/null5 Granott,
1952, p. 88. Apparently Granott means the dominant form of productive land.
https://www.blogger.com/null6 Robert
H. Eisenman, Islamic Law in Palestine and Israel:
A History of the Survival of Tanzimat and Shari`a in the British Mandate and
the Jewish State, (Leiden
https://www.blogger.com/null8 Granott,
1952, p. 93. On the various provisions for mawat in the main Sunni schools, cf.
Ali Abd Al-Kader, “Land Property and Land Tenure in Islam,” Islamic
Quarterly, 5 (1959) pp. 6-7.
https://www.blogger.com/null12 Hon. Mr
Justice Tute, “The Law of State Lands in Palestine
https://www.blogger.com/null13 Hon. Mr
Justice Tute, “The Registration of Land in Palestine
https://www.blogger.com/null17 Cf.
Joseph Schacht, An Introduction to Islamic Law (London
https://www.blogger.com/null24 The
survey taken during the British Mandate managed to cover only about one-fourth
of Israel
https://www.blogger.com/null29 Yehoshua
Porath, “The Political Awakening of the Palestinian Arabs and their Leadership
Towards the End of the Ottoman Period,” in Moshe Ma`oz, ed., Studies on
Palestine During the Ottoman Period, (Jerusalem: Magnes Press) 1975, p.
365. Also cf. John Ruedy, “Dynamics of Land Alienation,” in Ibrahim Abu-Lughod,
ed., The Transformation of Palestine Evanston
https://www.blogger.com/null31 William
R. Polk, David H. Stamler, and Edmund Asfour, Backdrop to Tragedy: The
Struggle for Palestine, (Boston
https://www.blogger.com/null35 Abraham
Granovsky, Land Policy in Palestine, (New York
https://www.blogger.com/null36 Barbara
Kalkas, “The Revolt of 1936: A Chronicle of Events,” in Abu-Lughod, p. 237.
https://www.blogger.com/null38 Moshe
Auman, Land Ownership in Palestine Jerusalem Middle East ) 1976, p. 22.
https://www.blogger.com/null41 Jiryis,
1976, p. 10. Also cf. J. L. Ryan, “Refugees within Israel Palestine
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