The Struggle for Land Under Israeli Law

An Architecture of Exclusion

Hadeel S. Abu Hussein

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000486056
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book provides a comprehensive examination of land law for Arab Palestinians under Israeli law.

Land is one of the core resources of human existence, development and activity. Therefore, it is also a key basis of political power and of social and economic status. Land regimes and planning regulations play a dynamic role in deciding how competing claims over resources will be resolved. According to legal geography, spatial ordering impacts legal regimes; whilst legal rules form social and human space. Through the lenses of international law, colonisation and legal geography, the book examines the land regime in Israel. More specifically, it endeavours to understand the spatial strategies adopted by Israel to organise the entire territorial expanse of the country as Jewish, while also excluding Arab Palestinian citizens of Israel and residents of East Jerusalem from the landscape. The book then details how the systematic nature and processes of marginalisation are mapped out across the civil, political and socio-economic landscape.

This monograph will be of interest to international legal theorists, legal geographers, land lawyers and human rights practitioners and students; as well as to international scholars, NGOs and others focusing on the Israeli–Palestinian conflict.

Chapter 1
Introduction – access denied

DOI: 10.4324/9781003242628-1

1.1 On theory, colonialism, law, and the ethnocratic State

‘Colonial law’ was used to wrench control from an indigenous population and to the coloniser, by creating ambiguous language and rules and placing it within the realm of law.¹ Land was fundamental to colonial projects, in which a State’s control of a territory was reached through legal tools. Therefore, law served to shape the power relationship between different social groups and between the rulers and the ruled.² Former European colonisers expropriated land for their own benefit, shaping a hierarchy of spatial controls, as a mechanism to preserve and support their hegemony over indigenous populations. The colonisers evicted the indigenous population from their public and ancestral lands. Under colonial State rule, lands that were not in active use were transferred, leased, or sold to individuals (typically members of the colonising group), in accordance with the Torrens system that guaranteed individual land titles in the registry.³ This land was used to plan, establish, and build new settlements.⁴ Indigenous populations were evicted. Some of the historical disputes that resulted from such evictions have resulted in recent legal challenges and a resort to human rights law in order to support their claims. Legal regimes were often constructed and designed in the ‘post-colonial’ State, as the modern State was inspired by former colonial legal regimes and inherited various exact laws within the modern system. The mechanisms through which States exercise power were often also borrowed from the colonial period. Professor Derek Gregory describes this in the following terms:

1 Geremy Forman and Alexandre Kedar, Forman, Colonization and Land Law in Mandate Palestine: The Zor al-Zarqa and Barrat Qisarya land disputes in historical perspective, Theoretical Inquiries in Law 4.2 (2003). 2 Ibid. 3 Stanhope Rowton Simpson, Land Law and Registration Vol. 14, Cambridge: Cambridge University Press, 1976. 4 Robert Home, Of Planting and Planning: The Making of British Colonial Cities, London: Routledge, 2013.

While they (the colonial powers) may have displaced, distorted, and (most often) denied, the capacities that inhere within the colonial past are routinely reaffirmed and reactivated in the colonial present, despite the critics in colonialism, the postcolonialism is usually distinguished from these projects by its central interest in relations between culture and power.⁵

5 Derek Gregory, The Colonial Present: Afghanistan, Palestine, Iraq, Malden, MA: Blackwell, 2004.

The colonial legal system is therefore present in various ways in the modern State. In some cases, it is adopted fully, as the laws and the legal structure are kept, and in some States, it is partly adopted. In the latter case, this adoption is linked to policy and the goals of government. In particular, the use of land regimes is a prime example towards understanding the manifestation of the practices changed by policies linked with politics that have evolved over time, and this virtually defines the rule of law. As Nasser Hussain stated, ‘the rule of law has emerged in our times as a powerful discourse of legitimacy’.⁶ Max Weber debated that:

6 Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law, Ann Arbor: University of Michigan Press, 2009.

In modern societies, the relationship between legality and legitimacy is […] one of virtual identity. Law not only provides the technical apparatus for exercise of state power but also the ideological foundation of authority.⁷

7 Cited in Roger Cotterrell, ‘Legality and Political Legitimacy in the Sociology of Max Weber’ in David Sugarman (ed) Legality, Ideology and the State, Cambridge, MA: Academic Press, 1983.

Land is one of the core resources of human existence, development, and activity. Therefore, it is a basis of political power as well as of social and economic status. Land regimes and planning regulations play a dynamic role in deciding how competing claims over resources will be resolved.⁸ Joseph Singer drew attention to the great power granted by the legal system in cases of an individual’s entitlement to property ownership. Singer demonstrated that:

8 John Ratcliffe, Land Policy: An Exploration of the Nature of Land in Society (Built Environment Series), London: Hutchinson, 1976.

Property is a system of social relation between people.

The failure to protect a set of interests as exclusive property rights leaves the people who assert those interests vulnerable to others. Both the creation and the failure to create property rights leaves people open to harm, either at the hands of state or at the hands of other persons. A central question, therefore, is how the legal system goes about defining and allocating property rights.⁹

9 Joseph William Singer, ‘Sovereignty and Property’, Nw. UL Rev. 86 (1991): 1.

Consequently, States exercise their power by shaping land regimes, using government land policies and regulations. The guaranteeing and the protection of different groups’ access to land will have significant implications. On the one hand, it will impose more restrictions on access to land for minority and disempowered groups, while, on the other, giving dominant majority groups easier access to land. Blomley argues that space gets produced, invoked, pulverised, marked, and differentiated through particular and discursive forms of legal violence¹⁰ and outlines how specialisation of the boundary, the survey, and the grid function can be used to legitimise the violence of property law.

10 Nicholas Blomley, ‘Law, Property, and Geography of Violence: The Frontier, the Survey and the Grid’, Annuals of Association of America Geographers 93 no. 1 (2003): 121–41.

According to legal geographers,¹¹ law and space are significant aspects of each other and they examine, among other things, how spatial ordering impacts legal regimes and how legal rules form social and human space.¹² A critical approach within legal geography examines this dynamic:¹³

11 Legal geography is a new field of research that recognises the inherent relationship between law and geography; Alexandre (Sandy) Kedar, ‘On the Legal Geography of Ethnocratic Settler States: Notes Towards a Research Agenda’, Current Legal Issues 5 (2003): 401–41. As late as 1994, Nicholas Blomley opened his study Law, Space, and the Geographies of Power with a lament for the scarcity of research on the subject. See: Nicholas Blomley, Law, Space, and the Geographies of Power, Guilford Press: New York, 1994. Additionally, several academic gatherings have focused on legal geography and the new field has recently been the subject of considerable published scholarship. It was the theme of a special issue of Historical Geography (Hist Geography 28, 2000). In 2001, three leading legal geographers (Nicholas Blomley, David Delaney, and Richard Ford) edited a fundamental anthology entitled The Legal Geographies Reader. Blackwell: Oxford, 2001. In addition, the fifth issue of Current Legal Issues (2003) was dedicated to ‘Law and Geography’. 12 Nicholas Blomley, David Delaney, and Richard Ford, ‘Preface: Where Is Law?’ in Nicholas Blomley, David Delaney, and Richard T. Ford (eds) The Legal Geographies Reader: Law, Power and Space, Oxford: Blackwell, 2001. In addition, the fifth issue of Current Legal Issues (2003), 6. 13 The Critical Legal Studies movement influences critical legal geographers. For details: Alexandre (Sandy) Kedar, ‘On the Legal Geography of Ethnocratic Settler States: Notes Towards a Research Agenda’, Current Legal Issues 5 (2003): 401–41; David Delaney provides an explanation of the importance of critical legal geography in ‘Of Minds and Bodies and the Legal-Spatial Constitution of Sanctuary’, 28 Hist Geography 25 (2000): 37; Benjamin Forest, ‘Placing Law in Geography’, 5 Hist Geography 12 (2000); Nicholas Blomley and Joel Bakan, ‘Spacing Out: Towards a Critical Geography of Law’, 30 Osgoode Hall LJ (1992): 661; David Delaney, Race, Place and Law: 1836-1948, Austin, TX: University of Texas Press, 1998 [hereafter Delaney, Race, Place and Law].

the importance of legalities, broadly defined, in the imposition of control by Europe over its various ‘others’: how law was ‘the cutting edge of colonialism, an instrument of the power of an alien state and part of the process of coercion’ […] how it became a ‘tool for pacifying and governing […] colonized peoples’.¹⁴

14 John L Comaroff, ‘Symposium Introduction: Colonialism, Culture, and the Law: A Foreword’, 26 Law & Soc. Inquiry 305 (2001): 306.

Colonial States legitimised power relations by constructing land regimes, with property systems such as land tenure and land administration thereby legitimising relationships within the colonised region. Thus, legal systems in such hegemonic systems played a fundamental socio-spatial power function in facilitating and institutionalising the transfer of land from indigenous populations to settlers.¹⁵

15 Joseph Singer, ‘Sovereignty and Property’, 86 Nw UL Rev 1 (1992): 3; Joseph Singer, ‘Well Settled?: The Increasing Weight of History in American Indian Land Claims’, 28 Ga L Rev (1994): 481–82.

Mandate land regulations provided an array of legal instruments to capture and control land for Israel. These regulations were inherited and modified from the British legal system that operated through the Mandate period, which was in turn modified under the Land Code during Ottoman rule. Hence, Israel’s land regime was constructed based on the British colonial experience, its style of law thereby contributing to the building and reshaping of control over the land in the newly established State in 1948. As Strawson observes, ‘Jewish nationalism develops the womb of British colonialism’.¹⁶ This legacy is evident in the Planning and Building Law (1965)¹⁷ that adopted the British-styled mechanism of a development plan managed by the local authorities, and the creation of a national Planning and Building Board.¹⁸ Similarly, the Land Acquisition (Validation of Acts and Compensation) Law (1953) was rooted in the Land (Acquisition for Public Purposes) Ordinance (1943) from the Mandate period, which allowed the State to expropriate land with minimal compensation. In turn, this law was drawn from the Ottoman Land Code, which allowed compulsory purchase, within the expropriation procedure adopted in the Land Ordinance of 1924.¹⁹ As Ronen Shamir highlighted:

16 John Strawson, ‘Reflections on Edward Said and the Legal Narratives of Palestine: Israeli Settlements and Palestinian Self-Determination’, Penn St. Int’l L Rev. 20 (2001): 363. 17 Planning and Building Law (1965), amended in 1990 [Hebrew] available: http://www.sviva.gov.il/English/Legislation/Documents/Planning%20and%20Building%20Laws%20and%20Regulations/PlanningAndBuildingLaw1965-Excerpts.pdf 18 Antony G Coon, ‘Development Plans in the West Bank’, Geo Journal 21, no. 4 (1990): 363–73. 19 Frederic Goadby and Moses Douchan, ‘The Land Laws in the State of Israel 1952’, Tel Aviv: Gaunt Shoshani Printing Co. reprinted Holmes Beach, 1998 by Guant, 1935; Jacques Kano, ‘The Problem of Land Between Jews and Arabs (1917–1990)’, Tel Aviv: Sifriat Poalim Publishing House (1992) [Hebrew].

Too little attention has also been given to the basic fact that the British, aided by their colonial experience elsewhere, created and installed a functioning state in Palestine: a rather advanced web of administrative apparatuses and governmental departments, a sound infrastructure and, of course, a fully-developed, ready-to-use legal system.²⁰

20 Ronen Shamir, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine, Cambridge: Cambridge University Press, 2000: 11.

Examining the State of Israel provides an example of ‘filling the gaps and silences in dominant historical narratives, and understanding of the historical background to the creation of the legal system towards empowering [the] ideologically strong nationalism domination of one ethnic group’.²¹

21 Dianne Otto, ‘Subalternity and International Law: The Problems of Gl...