ABSTRACT:This paper examines the political motivations and legal justification for the Israeli government’s ongoing efforts to acquire and settle land in two peripheral regions of the country: the Galilee in the north and the Negev in the south. This study also seeks to uncover the impact of these policies on the indigenous minority populations of these regions, the Palestinian communities in the Galilee and the Palestinian Bedouin communities of the Negev desert.
This research examines the political motivations and legal justification for the ongoing efforts of the Israeli government to develop and settle two regions of the country, the Galilee in the North, and the Negev in the South. The study seeks to further uncover the impact of this settlement pattern on two minority populations in Israel, the Palestinian minority in the Galilee and the Bedouin Palestinians of the Negev desert. Following the formation of Israel in 1948, the newly established state sought to strengthen and consolidate Jewish presence throughout its territory, particularly in targeted areas such as the Galilee and the Negev. One of the most formidable instruments used by state authorities to accomplish this aim of Jewish settlement is land use planning. Israeli control of land use resulted in policies that strengthened Jewish presence throughout the newly established state. These policies remain controversial because of the way in which they place Palestinians and Palestinian Bedouin communities in systemic cycles of under-development and under-representation. One of the most critical mechanisms enabling the state to carry out this policy was the law.
This research poses two primary questions: 1) How is the legal system used to reshape demographic and territorial landscapes across regions? 2) How does the empowerment of the state in this legal process ultimately impact minority groups?
The argument in this research is that the newly formed state of Israel was able to implement this policy of settlement by reinterpreting and rewriting existing land ownership laws, thus enabling the state to control the development patterns in different, targeted regions. The court system was a primary agent of this policy. Settlement policy has had the effect of ultimately depriving Palestinians and Palestinian Bedouin citizenry of equal access and rights over land. Land law has, therefore, facilitated the creation of ethnically divided and unequal Arab-Jewish space in Israel.
The theoretical foundations of this study derive from critical studies of power, geography, and law. Michel Foucault is the key figure who theorized how space reflects power structures in societies and states. Critical legal geographers, notably Alexandre Kedar and Geremy Forman, have established more specific theoretical approaches which apply directly to this research. Kedar explains the way in which legal systems, particularly the Supreme Court, play a crucial role in maintaining “geographies of power” by empowering the state in its land disputes cases (1). Finally, the work of Forman emphasizes the way in which the movement, or flow, of law between the local, regional, and national levels of the legal system also facilitates the movement of law from place to place (2). This process of “legal diffusion” also embodies the subsequent evolution, spread, and impact of these laws on a region or locality.
The interdisciplinary nature of this study examines critical perspectives on indigenous-settler dynamics, methods of colonization, ethno-national conflict, and nation-state development. Critical legal studies broadly describe the ways in which law functions to normalize the status quo such that it maintains systems of privilege. Essentially, legalism works to maintain the advantages of powerful groups within a society. Gordon’s broad explanation, “law as legitimating ideology” has been expanded and detailed in theories presented by critical legal scholars in the past couple of decades (3). Although each scholar maintains a unique critical theory, they ultimately support the notion that legal systems seek to not only justify but also disguise and normalize hierarchies of privilege based on class, race, and gender (4). Society comes to view these institutional inequalities as natural systems of governance. Critical legal studies seek to analyze legalism through these power hierarchies. Critical legal geography utilizes this approach to explain the way legal systems play a critical role in the construction of spatial hierarchies (5).
Legal geography is conceptualized in two terms. The first term “law in space” or “legalizing space” refers to how law is utilized as an agent to transform space. The second term “space in law” or “spatializing law” refers to how space has the capacity to create and shape law. The interplay between both abstract concepts of “law in space” and “space in law” physically manifests itself in the alteration and reallocation of land and people (6). The academic study of the development and evolution of this relationship through time is coined “historical legal geography.” This field, as it is examined through the critical perspective, will be an integral component of this research project.
Following the 1948 Arab-Israeli War, the Israeli government began the task of developing a number of core state institutions intended to secure territorial areas within the borders of the newly configured state of Israel. These territorial areas allegedly posed a threat to Israeli sovereignty and security. The perception of an internal Palestinian threat led to policies that primarily centered on security in Arab areas within the Green Line. As a core state institution, the Israel Land Administration functioned to not only increase the inventory of land for military needs, but to also accommodate Jewish settlement and increase control over Palestinian areas. In 1948, only 13.5 percent of Israeli territory was publicly owned. The state sought to establish a new land regime that would address this challenge to national development (7). The land administration developed within the framework of military government until 1966. Although state policy towards Palestinian citizens has evolved since this time period, the terms of Palestinian citizenship have consistently hinged on questions of security and national identity (8). Notions of Jewish nationalism as inextricably tied to state policy goals are reflected in the very terminology expressed in state documentation, particularly in regards to state land planning. Essentially, “settlement of title” or the land registration process was a system by which the state re-categorized, registered, and strengthened rights over land for the purpose of maximizing state land holdings. This process evolved through various phases in a series of laws and policies that became the institutional means for accomplishing what Israeli policymakers by 1949 described as the “Judaization” of land in Israel (9).
Israeli land laws were by no means an invention of the Israeli government. Following the precedent established by the British during the Mandate period (1917-1947), Israeli policymakers retained aspects of the 1858 Ottoman Land Code and British land policy to accomplish settlement of title most notably between 1948 and 1969 (10). The Ottoman administration encouraged land registration and stronger private property rights through terms of cultivation. At that time, this was done to develop tax farming as a more consistent and reliable taxation system. Ottoman land policies served as one aspect of the Tanzimat Reform period (1839-1878), a time marked by increased political centralization for needed military and economic growth throughout the empire. Land categorization was used as a primary tool by which the Ottoman Land Code defined the terms of title over land (11). This paper will specifically analyze the evolution of the 1858 Ottoman Land Code’s mawat land category from this historical context.
The terms of mawat land categorization have evidently changed since the Ottoman period. The 1858 Land Code defines mawat as land in “empty places,” without ownership, and uncultivated. This land was left for the public use of nearby villages and could be re-categorized as miri (land with private title) if it came into continuous cultivation (12). This public land was generally used as grazing land or was more often times used as an area where nearby villages expanded their farms or houses as needed by the residents. The key change instituted by the British Mandate in regards to this land category was the interpretation of public land as government land: land belonging to the administration of the British Mandate. This land was no longer available for free use by local villages. In fact, under the 1921 Mewat Land Ordinance, any person known to use these areas without the consent of the Director of Lands would face punishment as a trespasser. This policy was introduced to encourage a “modern” and western capitalist market within Mandate Palestine, strengthen private ownership rights, and create a more organized land registration system (13). Here we see a clear example of the way in which the British inherited and largely maintained the Ottoman Land Code amongst other local governing structures, yet also manipulated it with supplementary legislation as well as the introduction of a number of foreign legal concepts to better secure Mandate interests at the expense of indigenous land rights (14). It was indeed the British that introduced the socio-spatial power hierarchies that were inherited by the Israelis by 1948 (15). The Israel Lands Administration built off of this tradition of colonization and “modernization” as well as decades of Jewish settlement to further secure state land rights and sovereignty. Therefore, the legal construct surrounding settlement of title was very much tied to domestic policy goals aimed at furthering Jewish immigration, settlement and expansion, also to further control the Palestinian minority, which posed a perceived threat to the state (16).
The changing terms of the mawat land category are just one example of this. The role of the judiciary in the extension of settlement of title and land use planning has centrally impacted the development of ethno-national relations within Israel. This is exemplified by the fact that since the establishment of the state in 1948, the Supreme Court of Israel has intervened only once to stop what has been the state’s systematic expropriation of private property. Even in an unprecedented decision in 1994 to defend private property rights of an Arab owner, it was later reversed (17). This point is significant because the role of land in the nation-building process as well as the development of a national discourse is vital for national mobilization. In the case of Israel, much of the cultural, economic, and political path towards nation-building was done through the struggle over land (18). The rights over and control of this land is inextricably linked to the social identities of political life within Israel (19). Legal argument is utilized in this modern society to reconfigure geographies of power by creating legal terms over land rights and land access (20). Therefore, law works as one, but not the only, agent of land policy and empowers the state in its land dispute confrontations. This was historically done to fulfill specific state development goals aimed at: 1) the absorption of Jewish immigrants 2) the settlement of Jewish immigrants and 3) the expansion of [the] state (21). The role of various levels of the Israeli court system in the process of settlement of title will be analyzed through this critical perspective.
The judiciary succeeded in empowering state policy goals by prioritizing the burden of proof and changing the terms of title over land in such a way that made it extremely difficult for native Palestinians to prove ownership in a court of law (22). The process of “judicial land redemption,” which began in the Haifa District Court in the 1950s, is intrinsic to state land use planning in the Negev region to this day (23). The spatial transfer, circulation, and impact of these laws from one region to the next through the court system is called “legal diffusion” (24). This term embodies not only the movement of law but also the extent to which it penetrates and shapes the social and political landscapes of a locality. Moreover, the state’s litigatory advantage, as a “government compound repeat player” in both the district and Supreme Court also reveals the way in which the legal system allowed the state to enjoy a number of systemic advantages that were simply not available to smaller “single player” Palestinian farmers (25). The larger effect of these legal mechanisms will be analyzed through a dual lens: first, the way in which legislation transformed territory and demographics within both the Galilee and the Negev in favor of state policy goals (law in space). And second, how the unique demographics and territory of both the Galilee and the Negev led to regionally-derived legislation (space in law). This cyclical relationship between geography and law has held powerful effects on the evolution of Palestinian citizens’ rights and ethno-national divisions within the state.
This study works off of central concepts in the field of legal geography to illustrate the importance of law as a critical means of asserting territorial control. The case of Israel is especially pertinent to the field of legal-geography due to the ever-expanding nature of the state’s internal and external borders. The process of settlement of title as a tool of colonization has had the effect of not only blurring regional borders but also expanding the scope of Arab-Jewish ethnic power hierarchies. These power hierarchies have been spatially manifested in the state’s peripheries through land use planning policies.
The comparative study primarily provides a starting point from which future studies on regional land use planning in Israel can be analyzed. The empirical model for this study is of particular importance to the continued expansion of this body of work. The comparative study allows for the impact of land planning on settled Palestinian populations of the Galilee and the Palestinian Bedouin populations of the Negev to be analyzed (26). The empirical model further illustrates the way in which the unique demographics and landscapes of each region have ultimately shaped the historic development of the law. Due to the status of Bedouin land rights still in question within the Negev, this study serves as a starting point for a number of future studies on the region.
The shifting nature of Israel’s borders leaves a developing case open for scholars in the field of legal-geography: How are borders in the Negev and West Bank reconstructed and expanded? How has the judiciary facilitated and legalized the process? What implications does such process hold for notions of citizenship and land rights within a continuously expanding state? How does this process construct and enforce socio-spatial power hierarchies on the regional, national, and transnational level?
(1) Kedar, Alexandre. “On the Legal Geography of Ethnocratic Settler States: Notes Towards a Research Agenda.” Law and Geography, Oxford University Press (2003): pp. 401-439.
(2) Forman, Geremy. “A Tale of Two Regions: Diffusion of the Israeli ’50 Percent Rule’ from the Galilee to the Occupied West Bank.” Law and Social Inquiry, 34.3 (Summer 2009): pp. 671-711.
(3) Hunt, Alan. “The Theory of Critical Legal Studies.” Oxford Journal of Legal Studies, 6.1 (1986): p. 13.
(4) Ibid. p. 11.
(5) See works such as: Foucault, Michel. Security, Territory, Population – Lectures at the College de France (1977-1978). Ed. Michel Senellart. New York: Palgrave Macmillan, 2007; Delaney, David. “Running with the land: legal historical imagination and the spaces of modernity.” Journal of Historical Geography. 27.4 (2001): 493-506; and: Huxley, Margo. “Space and Government: Governmentality and Geography.” Geography Compass. 2.5 (2008): 1635-1658.
(6) Forman, Geremy. Israeli Settlement of Title in Arab Areas: ‘The Special Land Settlement Operation’ in Northern Israel (1955-1967). PhD Thesis, University of Haifa, Faculty of Humanities – Department of Land of Israel Studies, February 2005. p 24. Also see Nicholas Blomley and Delaney, David. “Running with the land: legal historical imagination and the spaces of modernity.” Journal of Historical Geography. 27.4 (2001): 493-506.
(7) Kedar, p. 452
(8) Forman 2005: pp. 11-12
(9) Lustik, Ian. Arabs in the Jewish States: Israel’s Control of a National Minority. University of Texas Press, Austin, Texas, 1980: p.6. Also see: Forman, 2005: p 109; and Forman, Geremy and Alexandre Kedar. “From Arab land to ‘Israel Lands’: the legal dispossession of the Palestinians displaced by Israel in the wake of 1948.” Environment and Planning D: Society and Space, Volume 22. (2004): pp. 809-830.
(10) Holzman-Gazit, Yifat. Land Expropriation in Israel: Land, Culture, and Society. Burlington: Ashgate Publishing Company, 1988.
(11) Forman, Geremy. Lecture. Lecture Sunday February 2010 – April 2010. Tel Aviv University – Faculty of Law.
(12) 1858 Ottoman Land Code. Translated by F. Onlgey. London: William Clowes and Sons, Lmtd, 1892. Article 103.
(13) 1921 Mewat Land Ordinance. Laws of the State of Israel, Volume 1.
(14) Shehadeh, Raja. “The Land Law of Palestine: An Analysis of the Definition of State Lands.” Journal of Palestine Studies, 11.2 (Winter 1982): p. 82-99. Also see: Kedar: 2003, pp. 424-425; and Braverman, Irus. Planted Flags: Trees, Land, and Law in Israel/Palestine. Cambridge: Cambridge University Press, 2009: pp. 14-17.
(15) Bunton, Martin. Colonial Land Policies in Palestine (1917-1936). Oxford: Oxford University Press, 2007: p 59.
(16) Forman, Geremy and Alexandre Kedar. “From Arab land to ‘Israel Lands’: the legal dispossession of the Palestinians displaced by Israel in the wake of 1948.” Environment and Planning D: Society and Space, Volume 22. (2004): p. 809.
(17) Holzman-Gazit: p. 1.
(18) Yiftachel, Oren. “Territory as the Kernel of the Nation: Space, Time, and Nationalism in Israel/Palestine.” Geopolitics, 7.2. (2002): p. 215-248. Also see: Shafir, Gershon. Land, Labor, and the Origins of the Israeli-Palestinian Conflict, 1882-1914. Cambridge: Cambridge University Press, 1989: pp. 20-21.
(19) Kedar, Alexandre and Oren Yiftachel. “Land Regime and Social Relations in Israel.” Swiss Human Rights Book, Vol. 1. Hernando de Soto & Francis Cheneval eds. Ruffer & Rub (2006): p. 51, pp. 129-296. Also see: Delaney, David. “Running with the land: legal historical imagination and the spaces of modernity.” Journal of Historical Geography. 27.4 (2001): p. 495.
(20) Delaney, David. “Running with the land: legal historical imagination and the spaces of modernity.” Journal of Historical Geography. 27.4 (2001): 493-506.
(21) Lustik, Ian. Arabs in the Jewish States: Israel’s Control of a National Minority. University of Texas Press, Austin, Texas, 1980: p.6.
(22) Kedar, Alexandre. Interview by Rena Zuabi. July 2010. Haifa, Israel.
(23) Kedar and Yiftachel: p. 140.
(24) Forman 2009: p. 677.
(25) Forman, Geremy. “Law and the historical geography of the Galilee: Israel’s litigatory advantages during the special operation of land settlement.” Journal of Historical Geography, 32.4 (October 2006): p. 796-817. Also see: Galanter, Marc. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law and Society Review, 9.1. (1974): pp. 165-230
(26) See works such as: Yahel, Havatzelet. “Land Disputes Between the Negev Bedouin and Israel.” Israel Studies, 2.2: P. 1-22; Falah, Ghazi. “Israeli State Policy Towards Sedentarization in the Negev.” Journal of Palestine Studies, 18.2 (Winter 1989): Pp. 71-91; and: Yiftachel, Oren. “Epilogue: Studying Naqab/Negev Bedouin – Towards a Colonial Paradigm?” HAGAR Studies in Culture, Politics, and Identity, 8.2: 2008: pp. 83-108.