{Written by Naomi Linder Kahn and reposted from the Gatestone Institute website}
Now that the debate surrounding the extension of Israeli sovereignty to the Jewish communities of Judea and Samaria has abated somewhat in light of the Abraham Accords, the time may be ripe to take a closer look at the legal status of these territories.
The picture that emerges might be surprising. More than a century after the dissolution of the Ottoman Empire, the empire’s ghost continues to reign. More than 50 years after Israel’s victory in the Six Day War, more than 30 years after King Hussein of Jordan publicly relinquished all legal and administrative ties to this territory, and more than 25 years after Jordan signed a peace treaty with Israel, officially relinquishing all territorial claims, the State of Israel continues to enforce Jordanian law — despite its clearly racist and backward underpinnings.
In the aftermath of the 1967 Six Day War, despite the clear moral and legal justification for full and unambiguous annexation of the territory, Israel instead chose to refrain from the natural, normal and expected steps that any and every other government takes following an undisputed outcome in a war of self-defense. The Israeli authorities instead chose to put in place “temporary arrangements” that continue to hold the area in legal limbo to this day.[1] At present, the State of Israel continues to enforce a combination of Jordanian and Ottoman law, rather than Israeli law — for fear of being accused in international forums, particularly the United Nations Security Council, of “acts of sovereignty.”
In what has proven to be a most unfortunate policy decision – which continues to wreak havoc on the lives of the Arabs and Jews who live in these areas, Israel continues to honor the Jordanian legislation that prohibits inheritance or purchase of land by women – both Arabs and Jews. Israeli courts continue to honor antisemitic Jordanian legislation that bars Jewish individuals from purchasing land in Judea and Samaria.[2] Israel continues to honor outdated Ottoman laws – abandoned everywhere else in the world more than 100 years ago[3] — that enable massive property theft through agricultural use.
In this bit of absurdity, every man and woman in the disputed territories known as Judea and Samaria — or the “West Bank” (of the Jordan River) — is being denied the most basic rights that form the bedrock of modern Western democracies. No matter what side of the political divide you view it from, a legislative and legal time-warp has trapped the residents of these territories – Arabs and Jews, Palestinians and Israelis – in amber for more than five decades. The result: legal chaos, injustice and incessant conflict.
Ironically, Israel’s legal reticence continues to fuel the endless conflict over the land itself, as well as a massive waste of resources — monotonous cycles of construction, lawsuit , demolition, reconstruction — that could be avoided by simply completing the process of land survey and registration initiated by the Ottoman Empire and continued by the British Mandatory and Jordanian governments in turn.[4]
Surveying and registering land ownership was not perceived as an act of sovereignty when the British caretakers undertook it; there seems no reason why it should be regarded that way now.
In short, the legal and legislative vacuum that has resulted from Israel’s well-intentioned decision to retain Ottoman and Jordanian law in the territories that came under its legal jurisdiction over 50 years ago continues to deprive both the Arabs and Jews who live there of their basic rights. This same vacuum has made it impossible to formulate forward-thinking policy for land use, environmental protection, settlement policy, and perhaps most critically, a negotiated resolution of the status of the territory. Without establishing who owns what, it is impossible to proceed toward a just division of resources or a peaceful resolution of the conflict.
Israel has spent so many decades avoiding any action in order not to be seen in a bad light, that it has created an unforgiveable vacuum of human rights and governance and a black hole of law and accountability. These continue to turn normal life for everyone who lives there into a bureaucratic nightmare. The time has come to banish the antiquated ghosts of Ottoman, Jordanian and British Mandatory rule, and to fill the legal void in Judea and Samaria with a modern, humanist, democratic system of law for everyone.
Naomi Linder Kahn is Director of the International Division of Regavim, an Israeli non-profit dedicated to ensuring legal, responsible use of Israel’s land resources.
[1] For a review and summary of the regulatory and legal processes still in effect in Judea and Samaria, see “Report of the Committee Examining the Issue of Land Registration in Judea and Samaria” (the Zamir Commission), 2005 (Hebrew).
[2] https://bit.ly/3sKAOPP (Hebrew)
[3] See Haim Sandberg, “Regulation of Property and Land Rights in the Land of Israel and the State of Israel” (Hebrew) (2000) for a history of the evolution of law in these areas and the evolution of Ottoman Land Law throughout the Middle East. Zandberg’s describes the Ottoman Empire’s attempt to replace the land registry system instituted in 1858 in favor of a cadastre-based system in 1913; this plan never came to fruition due to the outbreak of hostilities and the disbanding of the Empire following WWI (pp. 110-118).
[4] See Dr. Chagai Vinizky and Attorney Daniel Kramer, “Land Registries in Judea and Samaria” (Hebrew), in Land Law and International Law in Judea and Samaria (2013: The Adam v’Adamah Center), pp. 113-209).