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92. Israeli Supreme Court Doctrine and the Battle over Arab Land in Galilee: A Vertical Assessment

Author:
Geremy Forman
Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
In the mid-1950s, the overwhelmingly Arab central Galilee became the first regional focus of Israeli land-claiming in the context of state efforts to Judaize the region. This article examines the land-related judicial doctrines adopted by the Israeli Supreme Court through the early 1960s that facilitated this endeavor. While previous academic work on the evolution of these doctrines depicts a “horizontal” process proceeding from one SC precedent to another, this article employs a “vertical” approach that focuses on the role of litigant argument and lower-court rulings. The main finding is that in these disputes, SC justices did not merely rule in favor of the state, but consistently adopted the legal arguments advanced by the state, transforming them into SC doctrine and the law of the land. IN THE LATE 1950s, the central Galilee became the site of a judicial battle over land rights between the Israeli government and the region's Palestinian inhabitants. The thousands of legal disputes were products of the ongoing struggle between Jews and Arabs over land in the country that began under Ottoman rule and intensified during the British Mandate over Palestine. With the flight and expulsion of much of the country's Arab population and the establishment of the State of Israel in 1948, the struggle was transformed into one between the new Jewish state and its Palestinian minority, with Israeli officials using state-held land to intensify Jewish control and state law to expand beyond recognition the stock of land available for this purpose. A pivotal component of Israeli law that enabled the state to increase its landholdings, first in the Galilee and subsequently in other regions, was the land-related judicial doctrines institutionalized by the Israeli Supreme Court (SC) in the early 1960s, just as the judicial struggle over land in the Galilee was reaching its height. These doctrines expanded the legal definition of state land employed during land-title settlement and limited the ability of private claimants to acquire title, thereby strengthening the hand of the government at the expense of local residents. Because the lion's share of unregistered land in Israel was located in predominantly Arab areas, and because most land registered in the name of the state during the process was designated for Jewish settlement, these doctrines must be understood as having helped provide the territorial foundations for Judaization and shape Jewish-Arab ethnonational geographies of power in the young country. Although these doctrines' histories have been explored elsewhere, this article examines their evolution from a different perspective. Instead of approaching the doctrines primarily as SC creations and following their evolution “horizontally,” from one SC precedent to another as most legal scholars do, I focus on the origins of the fundamental principles by investigating the sources of the key ideas advanced by the authoring justices. This line of inquiry is particularly relevant, because a major point of contention in the writings of Israeli legal scholars has been the degree to which these justices were influenced by state interests and Zionist ideology, an arguably futile debate considering the absence of documentary evidence regarding the justices' inner thoughts and motivations at the time. However, by expanding exploration “vertically” beyond legal scholarship's traditional focus on upper-court rulings and incorporating the lower courts into our analysis, we gain a relatively clear understanding of where justices got their ideas. Although this vertical approach makes intuitive sense, I was nonetheless surprised by the consistency of my findings. In each doctrine examined for this article—the admissibility of aerial photographs, the “50-percent rule,” and the tripartite changes regarding Mewat land—lower-court rulings were by far the most important source of the arguments advanced by the authoring justices. And these rulings, in turn, most often replicated the arguments of Israeli state attorneys. In this way, doctrines evolved not only horizontally from one SC ruling to another, but also (and, in most cases, primarily) vertically, between the lower court (in this case, the Haifa District Court) and the SC. Moreover, while focusing on the horizontal evolution of these doctrines based on SC rulings alone may leave the sources of justices' ideas shrouded and unclear, exploring their vertical evolution based on lower-court and SC archives reveals a clear flow of doctrinal components from initial litigant arguments before the lower courts to the institutionalization of binding judicial doctrine. A vertical approach to the evolution of judicial doctrine has far-reaching implications for our understanding of Israeli executive-branch influence on the land-related judicial doctrines of the late 1950s and early 1960s. In contrast to previous scholarship, which concentrates on the degree to which doctrines favored state claims, factors motivating justices' rulings, and SC interventions, this approach focuses on the role of litigant argument and lower-court rulings in doctrine evolution. My main finding is that, in these disputes, SC justices did not simply rule in favor of the state but rather consistently adopted the legal arguments advanced by the state, transforming them into SC doctrine and the law of the land. The State of Israel v. the Palestinians of the Galilee: “Playing for Rules” during the Special Land Settlement Operation By the mid-1950s, the overwhelmingly Arab central Galilee had become the focal point of the Jewish-Arab struggle over land and the first regional focus of Israeli state land-claiming. There were two reasons for this. First, the area was almost all Palestinian in population and land ownership and had not been allocated to the proposed Jewish state by the 1947 UN partition plan. Although the Galilee (like most Arab areas of the country) remained under military rule between 1948 and 1966, many Israeli officials still regarded the demographic and sociospatial conditions there as a threat to Israeli security and sovereignty. It was in this context that efforts to “Judaize the Galilee” through Jewish settlement began in the early 1950s. Second, the region had not yet undergone settlement of title, or “land settlement”—a comprehensive system of survey, mapping, private and state land-claiming, and land registration initiated by the Mandate government and adopted by Israel in 1948. According to the terms of the system, this meant that the state's recognition of ownership rights in the region had not yet been finalized. From the outset, securing title of state-owned land to ensure sufficient territory for Judaization of the Galilee was a major Israeli concern. To this end, government agencies embarked on a systematic campaign of state land-claiming in the region. The land claimed by the state in the Galilee fell into two general categories: 1) privately owned Palestinian land expropriated en masse in the wake of the 1948 war, claimed by the Custodian of Absentee Property (CAP) and the Development Authority; and 2) “unassigned state land,” a term used by state authorities to refer to various types of land to which bare title was held by the state and to which individuals were unable to establish private rights to the satisfaction of the authorities. Israeli officials were troubled by the incomplete nature of the Galilee land registries and their belief that, since 1948, Galilee Arabs had “seized” large areas of state land. In 1954, these officials began calling on the government to accelerate Galilee land settlement to clarify the situation.
Political Geography:
Israel and Arabia

93. Palestinian Citizens of Israel and the Discourse on the Right of Return, 1948–59

Author:
Maha Nassar
Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
This article traces the evolving discourse on the "right of refugee return"among the Palestinian citizens of Israel during the first decade of Israeli statehood, with emphasis on the role of the local Arabic press in shaping and reflecting that discourse. More particularly, it focuses on al-Ittihad, the organ of the communist party (MAKI), which paid the greatest attention to the refugee issue. In tracing the party's shift from a humanistic/anti-imperialist stance on the issue to one emphasizing the refugees' inalienable right to return, the article sheds light on MAKI's political strategy vis-à-vis the Palestinian minority. It also illustrates the political vibrancy in the early years of the community, generally viewed simplistically in terms of a pre-1967 quiescence and post-1967 politicization. In late autumn 1959, Saliba Khamis, a Palestinian member of the Israeli Communist Party (ha-Miflagah ha-Komunist ha-Yisra'ilit-MAKI) central committee, wrote an essay in the party's Arabic-language newspaper, al-Ittihad (The Union), reviewing the ongoing attempts to compensate and resettle Palestinian refugees outside Israel. In his view, such offers would never succeed because of "the vigilance of the refugees themselves and their strong insistence on their right to return to their country." Khamis's invocation of "rights" (huquq) permeated his analysis, appearing fourteen times in his half-page essay.# His comments also reflected a shift in thinking of many Palestinian MAKI leaders during the first decade of Israeli statehood. As the only legal non-Zionist party during the 1950s, MAKI was the political home for many Palestinian citizens of Israel who held Arab nationalist beliefs but had no other outlet for political expression. Like its predecessor, the Palestine Communist Party (PCP), MAKI's platform stressed internationalism and Arab-Jewish brotherhood, though disagreements over the party's attitude toward Arab and Jewish nationalism occasionally led to tensions within the party. In 1944, Arab leaders broke away from the PCP to form the National Liberation League (NLL), which had a closer affinity to Arab nationalist positions. Although the Jewish and Arab branches reunited in 1948 to form MAKI, such disputes once again led to the party's split in 1965 into the predominantly Jewish MAKI and largely Arab RAKAH parties. During the period under review, MAKI's Arab and Jewish leaders worked together to maintain an internationalist outlook while tailoring their political messages to appeal to their respective communities. Given the disproportionately large Arab makeup of the party, MAKI's Arab leaders used their party's publications to enhance their reputation as the champion of Israel's Palestinian minority and to convince readers to vote for MAKI in parliamentary elections. While we cannot know with certainty how widespread the views expressed in al-Ittihad actually were, a close review of the paper gives us insight into the political positions MAKI leaders believed would resonate in the Palestinian community, thus providing us with a useful lens through which to examine Palestinian political discourse in Israel during its early years. Reports and editorials that appeared in al-Ittihad throughout this period show how two threads in the discourse on return developed, crystallized, and ultimately converged. Initially, the few articles written on this subject were by party leaders with a strong pro-Soviet tilt and were aimed at convincing Israeli decision makers to allow refugees to return to their original homes and lands on humanistic and anti-imperialist grounds. However, by 1959, a host of regional and domestic factors led al-Ittihad to emphasize the collective and inalienable right of Palestinian refugees-both the "external" refugees mainly in the surrounding states and the "internal" refugees still in Israel but prevented from returning to their villages-to do so. These factors included mounting Palestinian calls for the right of return, which, coupled with growing Soviet support on the issue, gave MAKI some of the political cover it needed to take a stronger stance. At the same time, competition with the newly formed Arab nationalist group al-Ard and the leftist-Zionist party MAPAM for the political support of Palestinian Israelis, along with pressure from internal refugees themselves, further convinced MAKI's Arab leaders to emphasize the refugees' right of return-a position they have held ever since. This confluence of domestic and regional developments makes 1959 a useful endpoint for our discussion of MAKI's transformation. Understanding how and why these changes occurred not only gives us keen insight into the dynamics of Palestinian activism in Israel during this early period but also demonstrates that the direction of this activism was often bottom-up rather than top-down. Furthermore, it shows how al-Ittihad helped connect the geographically and politically isolated Palestinians in Israel to the rest of the Arab world, paving the way for a reunited Palestinian political entity in the post-1967 era. The refugee issue is one of the most contentious of the Arab-Israeli conflict. Palestinians have long argued they have a legal right to return to their homes in historic Palestine. This was based in part on the Universal Declaration of Human Rights provision, "Everyone has the right to leave any country, including his own, and to return to his country," as well as on UN General Assembly Resolution 194 (III), which recognizes "that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property."Israel, however, has maintained that Palestinians do not have a legal right to return and that a solution to the refugee problem must be part of a broader peace agreement focused on the resettlement of refugees. While Israel did allow a few thousand refugees to be repatriated under family reunification provisions negotiated at the Lausanne conference in 1949, it has resisted pressures to accept large numbers of refugees since then. Much of what has been written on the Palestinian refugees has focused on the origins of the problem and their prospects for return. Studies of internal Palestinian refugees in Israel have outlined the mechanisms by which they were deprived of access to their lands and their own attempts to return. Less attention has been paid to how Palestinians in Israel viewed the refugee issue as a whole, especially during the early years of the state. One reason for this may be the fact that Palestinian citizens of Israel are often viewed as having been quiescent prior to 1967, whereas after 1967, exposure to Palestinians in the newly occupied territories and in exile led them to challenge government policies more forcefully. This was certainly true to some degree: the military government imposed on the community between 1948 and 1966, coupled with land confiscations, economic discrimination, and travel restrictions, greatly hindered any attempt at political mobilization during that period. Nonetheless, bisecting the political history of Palestinian Israelis into "pre-1967" and "post-1967" periods glosses over more nuanced developments within the community during the early years of the state. Among the aims of the present study is to determine when the concept of "right of return" became commonly used in MAKI's discourses on refugees.
Topic:
United Nations
Political Geography:
Israel, Palestine, and Arabia

94. Why Can't the Palestinians Recognize the Jewish state?

Author:
Ahmad Samih Khalidi
Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
Israel's relatively recent demand for recognition as a “Jewish state” or “homeland for the Jewish people” has important implications for the Palestinians (whether refugees, citizens of Israel, or residents of the occupied territories) with regard to their history, identity, rights, and future. This essay explores the moral and practical reasons why they cannot accede to this demand, or even accept Israel's self-definition as a matter of exclusive Israeli concern.
Political Geography:
Israel and Palestine

95. Arab Views (cartoons from al-Hayat)

Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
This section aims to give readers a glimpse of how the Arab world views current events that affect Palestinians and the Arab-Israeli conflict by presenting a selection of cartoons from al-Hayat, the most widely distributed mainstream daily in the Arab world. JPS is grateful to al-Hayat for permission to reprint its material.
Political Geography:
Israel and Arabia

96. Selections from the Press

Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
This section includes articles and news items, mainly from Israeli but also from international press sources, that provide insightful or illuminating perspectives on events, developments, or trends in Israel and the occupied territories not readily available in the mainstream U.S. media.
Political Geography:
Israel

97. Quarterly Update on Conflict and Diplomacy

Author:
Michele K. Esposito
Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
The Quarterly Update is a summary of bilateral, multilateral, regional, and international events affecting the Palestinians and the future of the peace process. More than 100 print, wire, television, and online sources providing U.S., Israeli, Arab, and international independent and government coverage of unfolding events are surveyed to compile the Quarterly Update. The most relevant sources are cited in JPS's Chronology section, which tracks events day by day. 16 February–15 May 2011
Topic:
Diplomacy
Political Geography:
Israel and Arabia

98. Congressional Monitor

Author:
Paul James Costic
Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
Published each year, the Congressional Monitor provides summaries of all relevant bills and resolutions (joint, concurrent, and simple) introduced during the previous session of Congress that mention, even briefly, Palestine, Israel, or the broader Arab- Israeli conflict. The Institute for Palestine Studies' Congressional Monitor Database (CongressionalMonitor.org ) contains all relevant legislation from 2001 to the present (the 107th Congress through the first session of the 111th Congress) and will be updated on an ongoing basis to include legislation prior to 2001 and after 2011. Material in this compilation was drawn from www.thomas.loc.gov, where readers can also find a detailed primer on the legislative process entitled “How Our Laws Are Made.” The 111th Congress, Second Session: 5 January–22 December 2010 Journal of Palestine Studies, Vol. 40, no. 4, p. 177
Political Geography:
Israel and Arabia

99. Documents and Source Material: Israel

Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
C. Friedrich-Ebert-Stiftung and Macro Center for Political Economics, "All of the Above: Identity Paradoxes of Young People in Israel (the 3rd Youth Study): Changes in National, Societal, and Personal Attitudes," Herzliya, Israel, 31 March 2011 (excerpts)
Topic:
Economics
Political Geography:
Israel

100. Documents and Source Material: United States

Publication Date:
07-2011
Content Type:
Journal Article
Journal:
Journal of Palestine Studies
Institution:
Institute for Palestine Studies
Abstract:
D1. Freshmen Republican Representatives to Congress, Letter Urging Republican Leaders of the House of Representatives to Maintain Current Aid Levels to Israel Despite the FY 2011 U.S. Budget Crisis, Washington, February 2011. D2. American Association of University Professors and American Jewish Committee, "Anti-Semitism on Campus," Washington, 20 April 2011.
Political Geography:
America, Washington, and Israel