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 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
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 Judea and Samaria Samaria
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.
Intent and Provisions of the Land Laws
ReplyDeleteThe Ottoman Land Code of 21 April 1858 defined five classes of land ownership: ملك milk, وقف waqf, ميري mīrī, متروكmatrūk and موات mawāt. Milk is "land in unrestricted private ownership," land for which the raqaba (paramount ownership) is vested in the individual.1 What little milk there was in Palestine was mostly "plots of land which had at the time of distribution [by Muslim conquerors] been assigned to unbelievers…."2 Waqf includes land "dedicated to a religious purpose" — theoretically owned by God — and administered or held in trust by a stipulated party such as a religious council.3
For mīrī, matrūk and mawāt, the raqaba is vested in the hands of the state. Mīrī is cultivated or cultivatable land acquired for the state through conquest or through forfeiture of milk due to a failure of heirs. An individual could gain rights over mīrī land by cultivating it and paying taxes; but the state continued to regulate its transfer and improvement. The tenant’s rights to mīrī were forfeited by failure to cultivate the land; such forfeited land is termed maḥlūl. In practice, neither the Ottomans nor the British ever repossessed maḥlūl.4 Mīrī included "by far the largest portion of the landed property in Palestine."5 (It should be noted that subsequent laws gradually extended the rights of mīrī tenure to approach those of milk.)6 Mīrī land could be converted by order of the sultan into matrūk maḥmiyya (property for general public use such as lakes or roads) or into matrūk murfaqa (property for use by a particular community such as market places and cemeteries).7
Mawāt is wasteland which an individual could (until 1858) turn into milk with the permission of the sultan and (until 1921) turn into mīrī by cultivating it for a given period of time and paying for it.8
According to Abraham Granott, "The object of the law of 1858, which dealt primarily with these three classes of property [viz., mīrī, matrūk and mawāt], was to maintain the rights of the State over them."9 Similarly, Robert H. Eisenman asserts that the "principle aim" of the Land Code of 1858 "was the reassertion of Government control over State Domain…." 10 The concept of state ownership of land was in fact an idea in Islamic law which however central was nonetheless often "ambiguous and unclear." 11
In contrast, Justice Tute contends that after the abolition of the "feudal conditions" in the Ottoman land revenue system after 1839, a confiscatory and corrupt system of tax-farming emerged which harmed the tenants and reduced state revenues.12 "It was…to restore the prosperity of the agriculturalists," writes Tute, "that the Land Code of 1858 was framed. …It is clear that this legislation could only be given effect to by setting up a system of land registration." 13
The Land Code of 1858 was thus soon followed by the Tapu Law of 14 December 1858 which provided for the issuance of title-deeds. "Procedures for registration, not only of old title, but also of transfers, inheritance, vivification of mewat, the auction of maḥlūl, and prior purchase…were dealt with in the Tapu Law."14 The Tapu Seneds Law, issued in 1859, provided that "No one in the future for any reason whatsoever will be able to possess mīrī without a title-deed."15
Effects of the Land Laws
ReplyDeleteThe provisions requiring registration, however, were "extensively ignored."16 The peasants were semi-literate and accustomed to a traditional society in which custom and oral evidence were sufficient to support an individual’s claim to property. 17 Landholders saw no great need to register their claim and often did so only when they wanted to sell it to another party. 18
Indeed, the peasants had strong incentives to not register or to under-register their land. One incentive was the tradition of mistrust of or opposition to government — what Granott calls the "indolence which characterizes the peasants’ attitude towards official regulations" — and the desire to avoid granting unnecessary legitimization to the government.19 A second incentive was evasion of current and potential taxes on registered property. 20 A third incentive to avoid registration was evasion of registration fees 21 or penalties and fines for late registration.22 A fourth incentive was evasion of military conscription based on or traced through land holdings. 23
Making matters worse, the land was registered piecemeal — that is, the status of a tract of land was recorded only when the owner had it registered. There was no cadastral survey,24 and "in most cases there were no measurements or maps and it was impossible to determine the boundaries of the properties."25 Claims to disputed lands brought later were therefore all the more difficult to prove.
Hence land was often not registered in the name of its "rightful owner." As long as the peasants were able to continue working their land, the registration did not concern them. But the problems arose not just because the land was not registered; they arose also because the land was often registered in the name of someone other than the rightful owner. This occurred several ways.
The widespread practice of mushā` (collective land tenure) led to mis-registration. Often a community’s lands were registered in the names of a few individuals or even in the name of just one individual.26 Later, under the British Mandate, matrūk was often registered in the name of the High Commissioner.27
The effect of these registration laws have been described as "catastrophic."28 The practice of registering land in the name of a fictitious or dead individual, and the inexact and incomplete nature of the records made the peasant’s claim to tenure insecure. Worst of all perhaps was the fact that local town merchants or city magnates often filed whole villages or series of villages in their own names. "The entrusting of the implementation of the [Ottoman Land] law [of 1858] to the local administration … made a mockery of the intentions of the legislator. Instead of strengthening the state’s rights over the mīrī land and the rights of the cultivators, the a`yān [notables] succeeded in registering large stretches of land in their own names."29 All together, the laws contributed significantly to the concentration of property titles into the hands of a few individuals and the state. 30 One writer observes concerning the code that "long before the Balfour Declaration, which is often seen as the fount of all contention over Palestine, the inarticulate but ancient peasantry had slipped a rung on the ladder which was to lead them down into the refugee camps in 1948." 31
Implications for Jewish-Arab relations
ReplyDeleteThe registration laws and the corollary concentration of land-title holdings contributed to the conflict between Jews and Arabs in several ways. Eisenman notes that the frequent failure of individuals to gain recognition of their land rights (when eventually they discovered they needed such recognition) was an important root of "hostile sentiments and antagonisms that were later to erupt between Arabs and Jews during the Mandate."32
These "hostile sentiments and antagonisms" developed not merely as a result of the "numerous and prolonged lawsuits" fought over land ownership33 but even more directly as a result of the eviction of hundreds of tenant families from lands they considered their own when large landholders sold their holdings to Jews. Most of the two million dunams (200,000 hectares) of land owned by Jews at the end of the Mandate were acquired through purchases from large landowners. As John Ruedy notes, "The land expert representing the Jewish Agency before the Shaw Commission of 1929 claimed that 90% of lands bought up to that time came from absentee landlords. During the 1930s the proportion fell to 80%. In the last decade of the mandate they were about 73%."34 Further, the British prohibition on land ownership by Jews in Palestine east of the Jordan River served to concentrate and thereby intensify the effect of land purchases by Jews in Palestine west of the Jordan River.35
The "hostile sentiments and antagonisms" developed moreover from a general and growing awareness among Palestinian Arabs of the alienation of their homeland. While many forces contributed to the growth of national consciousness and nationalism among Palestinian Arabs, it is sufficient to note here that the alienation of land in the scope and manner of its occurrence was one significant factor. "Prohibition of the transfer of Arab lands to Jews" was one of the three main "November Demands" put forward by the Palestinian Arabs’ "United Front" before the revolt of 1936.36
In 1948 the Israeli Government took over all British Government Lands in the area of Palestine which it controlled.37 These State Lands included mawāt, matrūk maḥmiyya, and abandoned mīrī, and represented about 70% of all Israeli-controlled Palestine.38 The mawāt lands, which accounted for over half of the State lands, had been (as of 1931) supporting 7,869 landowners and 2,508 tenants.39 Although previously reckoned as owners of the land "by the act of possession" 40 these farmers had no title-deeds and therefore had little legal claim to the land. As noted above, matrūk lands were sometimes registered in the name of Mandate officials; these now become State Lands as well. Finally, "security" orders were used to "temporarily" clear certain lands of inhabitants; and after a specified time such lands were then declared uncultivated (maḥlūl), thereby transferring full legal title to the State.41 In these ways antagonisms between Jews and Arabs — which continue to a great degree to center on the issue of land — were exacerbated.
The Ottoman Land Codes and Laws of 1858 and 1859, then, were issued in order to assure state control over the lands of Palestine and to increase state revenues from those lands. For a variety of reasons much of the cultivated or occupied land was never registered or was registered in the name of someone other than the individual or collective that actually worked it. The resulting concentration of land ownership and the confusion as to legitimate title contributed significantly to the development of antagonism and ill-will between Jews and Arabs in Palestine and Israel.
Effects of the Land Laws
ReplyDeleteThe provisions requiring registration, however, were "extensively ignored."16 The peasants were semi-literate and accustomed to a traditional society in which custom and oral evidence were sufficient to support an individual’s claim to property. 17 Landholders saw no great need to register their claim and often did so only when they wanted to sell it to another party. 18
Indeed, the peasants had strong incentives to not register or to under-register their land. One incentive was the tradition of mistrust of or opposition to government — what Granott calls the "indolence which characterizes the peasants’ attitude towards official regulations" — and the desire to avoid granting unnecessary legitimization to the government.19 A second incentive was evasion of current and potential taxes on registered property. 20 A third incentive to avoid registration was evasion of registration fees 21 or penalties and fines for late registration.22 A fourth incentive was evasion of military conscription based on or traced through land holdings. 23
Making matters worse, the land was registered piecemeal — that is, the status of a tract of land was recorded only when the owner had it registered. There was no cadastral survey,24 and "in most cases there were no measurements or maps and it was impossible to determine the boundaries of the properties."25 Claims to disputed lands brought later were therefore all the more difficult to prove.
Hence land was often not registered in the name of its "rightful owner." As long as the peasants were able to continue working their land, the registration did not concern them. But the problems arose not just because the land was not registered; they arose also because the land was often registered in the name of someone other than the rightful owner. This occurred several ways.
The widespread practice of mushā` (collective land tenure) led to mis-registration. Often a community’s lands were registered in the names of a few individuals or even in the name of just one individual.26 Later, under the British Mandate, matrūk was often registered in the name of the High Commissioner.27
The effect of these registration laws have been described as "catastrophic."28 The practice of registering land in the name of a fictitious or dead individual, and the inexact and incomplete nature of the records made the peasant’s claim to tenure insecure. Worst of all perhaps was the fact that local town merchants or city magnates often filed whole villages or series of villages in their own names. "The entrusting of the implementation of the [Ottoman Land] law [of 1858] to the local administration … made a mockery of the intentions of the legislator. Instead of strengthening the state’s rights over the mīrī land and the rights of the cultivators, the a`yān [notables] succeeded in registering large stretches of land in their own names."29 All together, the laws contributed significantly to the concentration of property titles into the hands of a few individuals and the state. 30 One writer observes concerning the code that "long before the Balfour Declaration, which is often seen as the fount of all contention over Palestine, the inarticulate but ancient peasantry had slipped a rung on the ladder which was to lead them down into the refugee camps in 1948." 31
Intent and Provisions of the Land Laws
ReplyDeleteThe Ottoman Land Code of 21 April 1858 defined five classes of land ownership: ملك milk, وقف waqf, ميري mīrī, متروكmatrūk and موات mawāt. Milk is "land in unrestricted private ownership," land for which the raqaba (paramount ownership) is vested in the individual.1 What little milk there was in Palestine was mostly "plots of land which had at the time of distribution [by Muslim conquerors] been assigned to unbelievers…."2 Waqf includes land "dedicated to a religious purpose" — theoretically owned by God — and administered or held in trust by a stipulated party such as a religious council.3
For mīrī, matrūk and mawāt, the raqaba is vested in the hands of the state. Mīrī is cultivated or cultivatable land acquired for the state through conquest or through forfeiture of milk due to a failure of heirs. An individual could gain rights over mīrī land by cultivating it and paying taxes; but the state continued to regulate its transfer and improvement. The tenant’s rights to mīrī were forfeited by failure to cultivate the land; such forfeited land is termed maḥlūl. In practice, neither the Ottomans nor the British ever repossessed maḥlūl.4 Mīrī included "by far the largest portion of the landed property in Palestine."5 (It should be noted that subsequent laws gradually extended the rights of mīrī tenure to approach those of milk.)6 Mīrī land could be converted by order of the sultan into matrūk maḥmiyya (property for general public use such as lakes or roads) or into matrūk murfaqa (property for use by a particular community such as market places and cemeteries).7
Mawāt is wasteland which an individual could (until 1858) turn into milk with the permission of the sultan and (until 1921) turn into mīrī by cultivating it for a given period of time and paying for it.8
According to Abraham Granott, "The object of the law of 1858, which dealt primarily with these three classes of property [viz., mīrī, matrūk and mawāt], was to maintain the rights of the State over them."9 Similarly, Robert H. Eisenman asserts that the "principle aim" of the Land Code of 1858 "was the reassertion of Government control over State Domain…." 10 The concept of state ownership of land was in fact an idea in Islamic law which however central was nonetheless often "ambiguous and unclear." 11
In contrast, Justice Tute contends that after the abolition of the "feudal conditions" in the Ottoman land revenue system after 1839, a confiscatory and corrupt system of tax-farming emerged which harmed the tenants and reduced state revenues.12 "It was…to restore the prosperity of the agriculturalists," writes Tute, "that the Land Code of 1858 was framed. …It is clear that this legislation could only be given effect to by setting up a system of land registration." 13
The Land Code of 1858 was thus soon followed by the Tapu Law of 14 December 1858 which provided for the issuance of title-deeds. "Procedures for registration, not only of old title, but also of transfers, inheritance, vivification of mewat, the auction of maḥlūl, and prior purchase…were dealt with in the Tapu Law."14 The Tapu Seneds Law, issued in 1859, provided that "No one in the future for any reason whatsoever will be able to possess mīrī without a title-deed."15