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Expropriations of Private Land of Arab Citizens in Israel: An Empirical Analysis of the Regular Course of Business

Published online by Cambridge University Press:  19 March 2012

Haim Sandberg
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Abstract

A fairly common premise in academic research about Israel is that the State of Israel has expropriated large tracts of land from Arabs, whether citizens or Palestinian refugees. This premise does not distinguish between the taking of property, which was expropriated from Arab refugees during the War of Independence, and the expropriation of land during the State's “regular course of business.” Blurring the distinction between land belonging to refugees and land belonging to citizens creates the impression that the State of Israel has expropriated large tracts of land as a regular “course of business.” This research isolates and clarifies the extent of “regular” expropriations on the national level according to the Lands (Acquisition for Public Purposes) Ordinance 1943—the main and permanent tool for large scale expropriations in Israel It shows that the common premise about expropriation of Arab citizens ‘land is highly exaggerated. The Arab population's share in the burden of expropriation was fairly small in absolute terms and is not significantly greater than the Jewish population's share.

While a quantitative analysis of the expropriations cannot in itself produce a conclusion about harmful and unjustified influences of the expropriations on Arab citizens, a quantitative analysis of each expropriation may produce information on which to make such a conclusion. Moreover, arguing against all expropriation of lands—which actually results in the transfer of resources from Arabs to Jews, irrespective of its scope and circumstances—may entail an a priori negation of Israel's right to use land resources and police powers to answer real public needs of the Jewish majority and can entail an a priori negation of the nature of Israel as a Jewish and democratic State—rather than a legitimate criticism on the merits of each expropriation.

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Articles
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Israel Law Review , Volume 43 , Issue 3 , 2010 , pp. 590 - 610
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Peretz, Don, Israel and the Palestine Arabs 168–191 (1958)Google Scholar; Oded, Yitzhak, Land Losses among Arab Villagers, 65 New Outlook 10 (1964)Google Scholar; Ruedy, John, Dynamics of Land Alienation, in The Transformaron of Palestine—Essays on the Origin and Development of the Arab-Israeli Conflict 134 ff. (Abu-Lughod, Ibrahim ed., 1971)Google Scholar; Jiryis, Sabri, The Legal Structure for Expropriation & Absorption of Arab Lands in Israel, 2 J. Palestine Stud. 82 (1973)CrossRefGoogle Scholar; Lustick, Ian, Arabs in the Jewish State 170 ff. (1980)Google Scholar; Kretzmer, David, The Legal Status of the Arabs in Israel 49 (1990)Google Scholar; Falah, Ghazi, Israeli “Judaization” Policy in Galilee, 20(4) J. Palestine Stud. 69 (1991).CrossRefGoogle Scholar

2 There is widespread reliance on the assessment of Sabri Jiryis who places the amount of appropriated lands at about one million dunams. See Sabri Jiryis, The Arabs in Israel 130 (1976).

3 Baruch Kimmerling, Zionism and Territory: The Socio-Territorial Dimensions of Zionist Politics 134 (1983); Kedar, Alexander (Sandy), The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948–1967, 33 N.Y.U. J. Int'l L. & Pol. 923Google Scholar; Kedar, Alexander (Sandy) & Yiftachel, Oren, Land Regime and Social Relations, in 1 Israel Swiss Human Rights Book 127, 133, 136–37 (Soto, Hernando de & Cheneval, Francis ed., 2006).Google Scholar

4 See Sandberg, Haim, The Lands of Israel: Zionism and Post-Zionism 67 (2007)Google Scholar [in Hebrew] [hereinafter Sandberg—Zionism] (discussing the expropriation of the Palestinian refugees' land in the abandoned towns and villages). See also Holzman-Gazit, Yifaat, Land Expropriation in Israel: Law Culture and Society 104 (2007)Google Scholar (describing the legal basis for the expropriations of the Palestinian refugees' land in their abandoned towns and villages).

5 Benvenisti, Eyal & Zamir, Eyal, Private Property and the Israeli-Palestinian Settlement 14 (1998)Google Scholar [in Hebrew]; Cohen, Hillel, The Present Absentees: Palestinian Refugees in Israel Since 1948, at 7 (2000)Google Scholar [in Hebrew].

6 However, it should be mentioned that the State of Israel decided to compensate—whether monetarily or by alternate lands—Israeli citizens for assets lost from villages in 1948 within the framework of the Land Acquisition (Validation of Acts and Compensation) Law, 1953, S.H. 58. The assumption is that assets in villages and towns that were destroyed or abandoned in 1948 included about 238,950 dunams belonging to Arab citizens of the State of Israel. By the conclusion of 2005, compensation was paid for 206,653 dunams, and 16,150 plaintiffs had received monetary compensation or substitute land—in an amount of 71, 703 dunams, see Sandberg—Zionism, supra note 4, at 78.

7 Official Gazette 32 (1943). Expropriations in accordance with the Planning and Construction Law, 5725–1965 are conducted on a local level. This study does not examine the infringement of land rights as a result of expropriations that are held according to this law. The local character of these expropriations affords the assumption that the scope of land to which it applies is appreciably smaller than the expropriations effected in accordance with the Ordinance, and the scale of harm based on local policies is therefore proportionately much smaller than the possible harm of national policies. See Holzman-Gazit, supra note 4, at 12.

8 Kretzmer, supra note 1, at 52. The expropriation of lands in Upper Nazareth was adjudicated in HCJ 30/55 Committee for Protection of Expropriated Nazareth Lands v. The Finance Minister, 9 PD 1261 [1955] [hereinafter Nazareth Lands], where specific mention is made of the scope of private land expropriated: 1200 dunams out of a total area of 4, 988 dunams (see id. at 1263, paras, c, d). See also Yalkut Pirsumim (Y.K.), June 17, 1954, No. 356 (Isr.).

9 Kretzmer, supra note 1, at 52 n.18; Kimmerling, supra note 3, at 142.

10 Kretzmer, supra note 1, at 52. The extent of the area declared under expropriation was actually 20, 162 dunams but of these only 6, 320 dunams were owned by minorities. See Reches, Eli, Israel's Arabs and Land Expropriation in the Galileee—Background, Events and Implications 1975–1977, at 46 (1977)Google Scholar [in Hebrew].

11 Expropriation notices were issued for approximately 26,000 dunams but not all of the property was privately owned. See Sandberg, Haim, Land Title Settlement in Jerusalem—Legal Aspects 23 J. Isr. History 216, 222, 229 n. 41 (2004)CrossRefGoogle Scholar [hereinafter Sandberg—Jerusalem].

12 Similar claims have been made by Bedouins in the North-West Negev area immediately after the War of Independence concerning land expropriations in the Hasayag Zone as well as expropriations in the Tel-Malkhata region—for the purpose of building the military airport, Nevatim—in the wake of the peace agreement with Egypt. For a summary of these claims, see Swirsky, Shlomo, Hason, Yael, Transparent Citizens, Government Policy towards Bedouins in the Negev, 14 Information Concerning Equality, Publication of the Adva Center 4–5 (2005).Google Scholar Under the Acquisition of Lands in the Negev (Peace Agreement with Egypt) 5740–1980, Appendix A, the State declared that an area of about 60 sq. km. was to be expropriated. This special expropriation is not discussed in this Article. Due to the desert nature of the land, and according to its classification as “Mewat” by the Ottoman Land Law, only a small portion of the area was indeed privately owned. For a comprehensive discussion of the subject of Bedouin ownership rights in the Negev, see Sandberg—Zionism, supra note 4, at 143.

13 The current area of Israel, which includes East Jerusalem and the Golan Heights, is 21,957 sq. km. See State of Israel-Israel Lands Administration, Report on Acts for Budgetary Year of 2007, 95 (2008). The land area of the State of Israel during the armistice lines of 1949 was 20,265 sq. km, see “Proposal for Completion of Land Settlement (Surveying and Mapping) of the Total Area of State” (appendix to letter of the Head of the Unit for Registration and Settlement of Lands in the State Comptroller's Office, dated Apr. 24, 1960, State of Israel Archives, Section 74, Box C5733, File 3520/7.

14 Private ownership of land in Israel is particularly low and amounts to about 8% (1,443 sq. km.) of the total area of the State. See State of Israel-Israel Lands Administration, Report on Acts for Budgetary Year of 1999, at 48 (2000).

15 Data pertaining to expropriations relates to blocks and parcels, and hence the necessity to use maps to locate the parcel. Some of the publications regarding expropriations only refer to maps that are open for examination in government offices for a limited time after the expropriation. The maps are not published in the Official Publications; thus, identification of areas requires an enormous collection or mosaic of maps and is exceedingly difficult to follow or to reconstruct.

16 For a discussion of the “problem of coordination” as a reason justifying expropriation, see Haviv-Segal, Irit, The Coordination Problem and the Question of a Public Purpose in Land Expropriation, 21 Iyunei Mishpat 449, 473–82 (1998)Google Scholar [in Hebrew].

17 According to the Ordinance, the expropriation proceedings require that the Minister of Finance publish a number of notices in the Official Publication (Rashumot): Notice of intent to acquire (Section 5); notice of retracting intent to expropriate (Section 14); notice of delivery of possession of expropriated land (Section 7); and notice of the purchasing and registration of land (Section 19). There is also a publication of acquisition notices at the request of the Minister of Finance (Section 22). The Land Administration Reports only include land that notice was given regarding intent to acquire (Section 5) and take possession of (Section 7).

18 The State of Israel: Israel Lands Administration, Report on Activities of the Israel Lands Administration for Years 1976/77, at 121 (1977) [hereinafter 1976/77 Report]. This report collates all data relating to the years 1964/65–1976/77. Information regarding period between 1978/77–1992/93 is summarized in Sandberg—Zionism, supra note 4, at Appendix B and is based on summaries of annual reports of the Land Administration. This Article only demonstrates its overall conclusions.

19 The detailed results of such an examination, which I conducted within the framework of this study, produced a list of settlements and a summary of the lands expropriated therein, see Sandberg, supra note 4, at Appendix A. This Article only demonstrates its overall conclusions.

20 See Sandberg—Zionism, supra note 4, at Appendix A. See supra note 19.

21 Based on the 1976/77 Report, supra note 18.

22 See Sandberg—Zionism, supra note 4, at Appendix B. See supra note 19.

23 For example, in the year 1970/71 expropriation notices were published for a total of 31, 441 dunams, of which only 6, 794 were privately owned (22%). Yet, in the year 1973/74 expropriation notices were only published for 1,319 dunams, of which 857 dunams were privately owned (65%), see 1976/77 Report, supra note 18.

24 Forman, Geremy, Israeli Settlement of Title in Arab Areas: “The Special Land Settlement Operation” in Northern Israel (1955–1967) 238–39 (2005) (unpublished Ph.D. dissertation, University of Haifa).Google Scholar

25 See supra note 14.

26 As of 1993, out of one hundred thousand dunams—which pursuant to Section 2 (7) of the Israel Lands Law, 5720–1960, SH 56, (Isr.) (original version) were transferable to private ownership—only 30,649 dunams have actually been transferred. The State of Israel—Israel Lands Administration, Report on Activities of The Israel Lands Administration for Years 1992/93, at 92 (1993). Recently, the ceiling on possible transfers was raised to eight hundred thousand dunams according to Section 13(2)(b) of the Israel Land Administration (Correction No. 7) Law 5772–2009, SH 318.

27 Based upon Israel Lands Administration annual reports.

28 Despite the lack of complete and precise data regarding the ethnic distribution of privately owned land in the State of Israel, the data we have is sufficient to assume that the Arab citizens were, and still are, in possession of private lands in excess proportionally to their population in Israel. This result is reached by subtracting the data that we have on the rate of private Jewish ownership from the entire private ownership of land. For example, before the establishment of the State land under private Jewish ownership was estimated at 800,000–925,000 dunams and included land assets of the Palestine Jewish Colonization Association (PICA), Hachsharat Ha Yishuv, and other public bodies. See Katz, Yossi, The Battle for the Land 353 (2005)Google Scholar; Kark, Ruth, Planning, Housing, and Land Policy: The Formation of Concepts and General Frameworks, in Israel—The First Decade of Independence 461, 479 (Troen, Ilan & Lucas, Noha eds., 1995).Google Scholar After the establishment of the State some of these lands became “Israel's Lands” so that the correct “net” number of Jewish, privately owned lands is even lower. The remainder of lands, after the establishment of the State, was under Arab ownership, meaning not less than 525,000 dunams (35%). Kark estimates that in 1949 there were 867,000 dunams of cultivated rural land under Arab ownership (id). More accurate, albeit partial data, exists with respect to private Arab ownership regarding the scope of land registered as being under private Arab ownership in the land title settlement operation in the Galilee region, which was conducted in the Arab villages in the first few decades following the establishment of the State. This operation showed the uncontested registration of 306,920 dunams of privately owned land in the names of private owners (most of whom were presumably Arab citizens). This data is based upon an analysis of the data appearing in Annex F of the Concluding Report of the Interoffice Committee—Justice and Israel Lands Administration—appointed by the Ministers of Justice and Agriculture to Examine the Land Settlement Proceedings, State of Israel Archives, Unit 74 Box C/5733 File XI 3520 (1964). See also Sandberg, Haim, Land Title Settlement in Eretz-Israel and in the State of Israel 351 (2001)Google Scholar [in Hebrew].

29 See Table A supra.

30 See supra note 25 and preceding text.

31 For a list of the blocks included in this one time expropriation, see O.G. 5756 (2.2.56) 539 (no. 461). According to the central map of blocks in Israel, the overall area of this expropriation extends from the southern areas of the Gisr A-Zarka village in the north, to south of Kibbutz Sdot-Yam in a strip extending from the Mediterranean Sea to the center of Or-Akiva. Presumably, this means the expropriation of most of the area that was designated for the establishment of Caesarea and for management by the Edmond Benjamin de Rothschild Caesarea Development Corporation Ltd. in accordance with an agreement between the State of Israel and the Edmond Rothschild Caesarea Fund. A significant portion of this land was previously owned by PICA which had been previously owned by the Rothschild family. The aforesaid information is based on a October 23, 2006 conversation with Mr. Yoel Schwartz, the director of the Haifa district of the Israel Cartography Center; see also the Caesarea Fund, http://www.caesarea.com/pages_e/686.aspx (last visited Apr. 15, 2011).

It may be assumed that a small section of the land also consisted of absentee owned lands from the village of Caesarea. The residents of Caesarea village lived on lands that were rented from PICA, see Benny Morris, The Birth of the Palestinian Refugee Problem 1947–1949, at 82 (3d ed. 1997) [in Hebrew].

32 A list of the expropriations carried out in the villages and cities that were abandoned in 1948 appears in Sandberg—Zionism, supra note 4, at Appendix B (Table D). In only five of the cities and villages that appear in this list —Acre, Tiberias, Magdal, Damun, and Maalul—was the number of internal refugees in excess of 500; most of the settlements had no internal refugees at all. Compare with Cohen, supra note 5, at 24–25. Most of the expropriations in these settlements were on a very small scale, because most of the areas relevant to the internal refugees were handled within the framework of the State control and ownership of refugees' assets immediately following 1948.

33 As noted in the Land Administration's report of that year, the expropriations led to the filing of five petitions with the Israel High Court of Justice—four of which ended in compromise agreements for compensation vis-à-vis alternate lands (during that year 65 dunams were given as compensation for expropriations). See The State of Israel—Israel Lands Administration, Report on Activities of the Israel Lands Administration for Years 1964/65, at 163 (1965). See also supra note 9.

34 See Sandberg—Jerusalem, supra note 11, at 514 n.46.

35 Reches, supra note 10, at 46 Appendix A.

36 See Official Gazette, 1305 (1980); see also The State of Israel—Israel Lands Administration, Report on Activities of the Israel Lands Administration for Years 1979/80, at 109–10 (1980).

37 HCJ 307/82 Lubianker v. The Minister of Finance 37(2) PD 141, 149 [1986] (Isr.).

38 See supra note 24 and adjacent text.

39 Examination of the official publications relating to the expropriations clearly indicates that significant portions of land were also expropriated in Jewish settlements. See, e.g., the notice of expropriation of 942 dunams in Rosh Pinna: Ministry of Justice, Yalkut Pirsumim (Y.P.), Oct. 24, 1975, No. 295.

40 Sandberg—Jerusalem, supra note 11, at 513–14.

41 Oded, supra note 1, at 24.

42 The balance of these interests in Israel is based on the interpretation given to the term “public need” in the Lands Ordinance and the implementation of the test of a proportionate infringement of property in accordance with Sections 3 and 8 of the Basic Law: Human Dignity and Liberty, 5752–1992, SH No. 1391, p. 150. See Holzman-Gazit, supra note 4, at 13. For an analysis of the distributive considerations, see Dagan, Hanoch, Takings and Distributive Justice, 85 Va. L. Rev. 741 (1999).CrossRefGoogle Scholar

43 Compare with the famous precedent of Kelo v. City of New London, 545 U.S. 469 (2005).

44 See Holzman-Gazit, supra note 4, at 128.

45 See Sofer, Arnon, Territorially, Nation and State—What is Defective with the Fundamental Concepts of the Jews in Israel, 21 Iyunei Mishpat 747, 758, 765 (1998)Google Scholar [in Hebrew] (analyzing the reasons for the population of areas adjacent to the borders with Jews).

46 The space is too scarce in this Article to describe the voluminous literature in this area. It suffices to note that various publications have been dedicated in their entirety to discussing this issue, see, e.g., 19 Iyunei Mishpat (July 1995); Multiculturalism in a Jewish and Democratic State (Mautner, Menachem ed., 1998)Google Scholar, and The Jewish-Arab Rift in Israel: A Reader (Gavison, Ruth & Hacker, Daphne eds., 2000).Google Scholar

47 For an approach refuting general claims regarding the existence of such a contradiction, see, e.g., Gavison, Ruth, A Jewish and Democratic State: Political Identity, Ideology and Law, 19 Iyunei Mishpat 631, 644 ff. (1995)Google Scholar; Gavison, Ruth, A Jewish and Democratic State?, in The Jewish-Arab Rift, supra note 46, at 75–78Google Scholar; Kasher, Asa, A Jewish and Democratic State—A Philosophical Sketch, 19 Iyunei Mishpat 729, 738 (1995)Google Scholar; Alexander Jacobson & Amnon Rubinstein, Israel and International Law 187 (2003).

48 Particularly relevant is the sentence “The State of Israel will ensure complete equality of social and political rights to all its citizens, and appeal to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship.” Regarding the preliminary drafts of the Declaration, see Shachar, Yoram, The Preliminary Drafts of the Declaration of Independence, 26 Iyunei Mishpat 523 (2003).Google Scholar

49 For example, former Supreme Court President Aharon Barak expressed himself in the following manner:

All are entitled to equality of rights. It is forbidden for us to discriminate between the Jew and the non-Jew. This is not a post-Zionist position. This is authentic Zionism … the years to come are fateful ones, and certainly in terms of our relations with our neighbors … they will define the essence of modern Zionism—a Zionism which is not post-Zionist, but which has consideration for the complexity of Israeli society and its pluralistic character. They will determine the status of the non-Jewish minority among us… See President Barak's comments at the August 13, 2001 ceremony for the appointment of judges: “We must reach a national compromise and overcome the truggle between the religious and the secular.” Hadashot Mahlaka Rishona (Sept. 7, 2001). A similar approach was taken by former attorney general Rubinstein, Elyakim. Israel Lands—A Legal Perspective: Long term Revival or a Long-Term Catastrophe, 52 Karka 21, 29 (2001)Google Scholar [in Hebrew].

50 HCJ 6698/95 Kaadan et al v. Israel Lands Administration, 54 (6) PD 258, 275 ff [2000].

51 In 2008, the Arab population was more than at 15% of the population in Nazareth. See State of Israel, Central Bureau of Statistics, http://gis.cbs.gov.il/website/YISHUVIM/yishuvim_2008 (last visited July 7, 2010).

52 Nazareth Lands, supra note 8.

53 Id. at 1263.

54 Id. at 1265.

55 Id. at 1266.

56 See Forman, supra note 24, at 76 n.76.

57 Nazareth Lands, supra note 8, at 1267, opinion of Justice Cheshin.

58 See supra note 33.

59 Nazareth Lands, supra note 8, at 1263.

60 Id. at 1266.

61 Id. at 1265.