Ottoman land ownership law – It is time to
learn the facts about Judea and Samaria
To truly understand the status of this territory we have to
first differentiate between the personal and the national. The recent furor
surrounding the government’s decision to declare nearly 1,000 acres at Gvaot in
Gush Etzion “State Land
For many, if not most, around the world, every inch of land
beyond the 1949 armistice lines is automatically Palestinian; a display of
unfamiliarity with history and international law.
To truly understand the status of this territory we have to
first differentiate between the personal and the national.
Of course there is land privately owned by Palestinians in Judea
and Samaria , what many call the “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. These
areas, according to Ottoman and British records, constitute no more than a few
percent of the total area, meaning the vast majority is not privately owned.
However, to contend that these territories are “Palestinian”
on a national level is problematic. 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 Palestinians.
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 League of Nations Mandate,
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.
For the past almost 2,000 years, since the destruction of
Jewish sovereignty and expulsion of most of its indigenous people, it remained
an occupied and colonized 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 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.
Ownership 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 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.
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 “occupied territory” that according to international law
the 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.
None of these facts are even alluded to in the many reports
surrounding the government’s actions in Gvaot. 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.
I frequently take foreign visitors and officials on a tour
of Efrat and Gush Etzion and am amazed at the well-meaning ignorance and
preconceived positions that many, even friends of Israel ,
hold about the status of this area and wider Judea and Samaria .
Usually, however, by the end of the tour many of these positions have been
debunked and those that I speak with are astonished that there is even another
side to the story, having been assured that the pro-Judea and Samaria
position is based solely on the Bible.
I welcome and even challenge anyone and everyone to come and
see the reality for themselves and learn the history and context of the region,
if only for the sake of intellectual honesty. No one ever lost out through
intellectual curiosity, and I am certain that we can lessen the next furor and
international incident if a greater number of people can be made more familiar
with the facts of history.
We should be upfront here about the ‘history’ or
‘historicity’ of Israel/Palestine/Jordan
1. In 1948, Jordan attacked the nascent Jewish State of
Israel in an UNPROVOKED attack which was coordinated with other members of the
Arab League … during the war whose aim was NOT TO CREATE ANOTHER ARAB/MUSLIM
STATE but rather to ‘erase’ ‘eradicate’ ‘murder’ as defined in this quote from
Abdul Rahman Azzam Pasha, the Arab League’s Secretary-General: “… this will be
a war of extermination and momentous massacre which will be spoken of like the
Tartar massacre or the Crusader wars.”
2. The Arab/Muslims armies of Egypt, Lebanon, Syria, and
Transjordan (Iraq & various Jihadis as well) didn’t expect anything but to
divide the territories between themselves and by joining in “[the war] will be
an opportunity for vast plunder …” quoted by Akhbar al-Yom’s editor Mustafa
Amin from the aforementioned Abdul Rahman Azzam Pasha
3. The war and invasion created the Arab/Muslim Refugee
Issue …
4. Transjordan/Jordan ANNEXED the territories they conquered
in the war and ruled over the population … they should be considered JORDANIAN
CITIZENS!
5. After 1967 … Jordan
again joined Egypt
and Syria
(among others including Iraq
& various Jihadis) in attacking the Jewish State … the result was Jordan
LOSING its control over the ‘West Bank ’ and subsequently
renouncing its prior annexation …
