Just how historic is this decision?
First, the context: 93% of Israel’s 20,325 square kilometers is under the control of the ILA. (The remaining 7% is privately owned, half by Jews and half by Arabs.) The 93% breaks down this way: 80% is owned by the State and 13% by the JNF. Much of the state land belonged to no one officially before the 1948 War (more than half of Israel is desert, where the Bedouin have rights by dint of usage), but about half the good farmland owned by Arabs before 1948 has been confiscated by Israel down through the decades. (Hillel Cohen, Present Absentees: The Palestinian Refugees in Israel Since 1948, p. 100.)
The JNF was established in 1901 to collect money in order to “redeem” land for the Jewish people – to redeem it, that is, from its Arab “captivity.” By 1948 it had bought, in fact, 936 sq.km. Its remaining 1555 sq. km. consist of lands that were confiscated by Israel and transferred to it. Once land is in the hands of the JNF, it is securely “Judaized” (an Israeli term, discussed below). Article 27 of the JNF charter forbids the marketing of JNF land to non-Jews.
This racist principle contradicts Israel’s democratic pretenses so obviously that measures have been taken, throughout the years, to avoid bringing the JNF charter before Israel’s High Court. The JNF’s current head, Yehiel Leket, said in a positive response to Mazuz’s recent decision: “Throughout all the years, we found smart solutions and were able to uphold the principle of Jewish settlement without having to face the High Court of Justice.” (Quoted by Dan Izenberg in the Jerusalem Post Jan. 28, 2005)
By a covenant between the JNF and the State, the former occupies 49% of the seats in the ILA governing council. In this way, the JNF has effective control over the 93% of Israel’s territory. It also has an important role in decisions concerning the occupied lands in the West Bank, Jerusalem and Gaza. Under a program called “Advancing Country Settlement,” reports Akiva Eldar in Haaretz(Jan. 31), “tens of thousands of dunams on which settlements were built, as well as industrial parks and roads, were purchased by Himnuta, a subsidiary of the JNF, which specialized in buying lands from Palestinians through straw men.” (The JNF, fearing to jeopardize donations, avoids purchases beyond the Green Line. It uses Himnuta for this.)
Among the “smart solutions” for avoiding the High Court, JNF head Leket mentioned an informal procedure whereby the ILA did quietly allow Arabs to bid for JNF lands. In cases where an Arab won the tender, the ILA would compensate the JNF with an equivalent parcel elsewhere. In the spring of 2004, the ILA offered tenders on 43 JNF plots in a neighborhood known as Makosh Hill in Carmiel. (It verges on the “unrecognized village” of Ramya – recognized by veteran Challenge readers: see www.hanitzotz.com/challenge/46/news.html. Ramya is the topic of Video 48’s documentary, Not In My Garden.). Some of the Makosh tenders were won by Arabs, which set off an uproar among Carmiel’s Jews. The ILA froze the tender. On renewing it in September, this time for 26 plots, it halted its informal arrangement with the JNF and resorted to the official position that indeed, it could not release JNF lands to non-Jews.
In response, the Association for Civil Rights in Israel (ACRI), the Arab Center for Alternative Planning, and the Legal Center for Arab Minority Rights (Adalah) all petitioned the High Court against the ILA decision. By virtue of his office, Mazuz could not ignore an earlier High Court decision (see box) and decided that JNF tenders must be open to Arabs as well. He “balanced” this by formalizing the earlier swapping arrangement between the ILA and the JNF. To repeat: Whenever JNF land goes to Arabs, it will get an equal amount of ILA land, keeping its 13%.
But since state land belongs to all the citizens, by what right can pieces of it be transferred to an organization that holds land for one sector only of the population? Attorney Auni Bana, who petitioned the Court for ACRI, told Challenge that while ACRI welcomes the Mazuz decision, the latter “nonetheless continues to discriminate illegitimately between Jews and Arabs with regard to the 13% of the public lands in the state that belong to the JNF.” In any case, he said, ACRI is not about to withdraw its petition and will oppose the granting of alternative land to the JNF. When Mazuz publishes his decision in writing (the Court has given him ninety days to respond), ACRI will decide whether and how to change its petition. Bana: “We demand full equality between Jews and Arabs, nothing less, and therefore Mazuz’s position does not satisfy us.”
The larger question
The whole issue of the JNF lands, however, does not come close to the real problem of the Arabs in Israel where land is concerned, namely, the fact that their locales cannot expand. Crowded families look through their windows at lands that belong to them but today are controlled by the State, which keeps the village in a stranglehold. Even if Mazuz’s decision enabled them, theoretically, to retrieve these lands (on the further difficulties, see box), what good would that do when they won’t have the right to build on them?
Hanna Suweid, who chairs the Arab Center for Alternative Planning, told Challenge: “It’s not the JNF that heads the hierarchy of discrimination. It’s the ILA itself, along with the government offices. The strangulation of the Arab locales results from a deliberate government policy, which is implemented chiefly by the Interior Ministry. Interior shrinks the areas over which the local Arab councils have jurisdiction, transforming them into landless ghettoes, instead of letting them expand in accordance with population growth.”
Professor Rassam Khamaisi (Dept. of Geography, University of Haifa) has studied the government’s methods in a paper called “Environmental Spatial Policies and the Control of the Arab Localities Development” (2004, available on the web). He singles out three major methods: 1) The government reduces the areas over which Arab localities have jurisdiction; 2) It prohibits territorial contiguity between them; 3) It seeks to prevent the growth of an Arab majority in any region.
Arabs make up 18% of Israel’s population, but according to Khamaisi, their local councils have jurisdiction over only 2.5% of Israel’s land. (Jewish regional councils have jurisdiction over 83%.) The map defining the areas of jurisdiction, which dates from the 1950’s, fragments the Arab localities and reduces the area under their control. In many cases, such as Kafr Kana and Arabeh, jurisdiction covers just a third of the village land. In Kafr Kana (pop. 17,000), for example, the land belonging to the people of the village amounts to almost 20 sq. km., but the area over which the village has jurisdiction is only half of that, and the government-imposed master plan permits only 3.6 sq. km. for development. In Arabeh (14,000 persons), the village-owned land amounts to 30 sq. km., but the area of jurisdiction is only 9 sq. km., and the master plan permits only 3 sq. km. for development.
Where a village lacks jurisdiction over part of its land, it is often a Jewish regional council that has it. Some of these councils were established as part of a policy, begun in the late 1970’s, called the “Judaization of Galilee.” The council of Misgav, for instance, has jurisdiction over much of the land that is owned by Arabs in Arabeh and its neighboring villages.
The major mechanism in curtailing Arab growth is, of course, planning. The last national plan, No. 35, sets the goal of “developing Israel as a Jewish and Democratic state.” (Only one Arab, Prof. Khamaisi, sits on the national planning staff.) Plans for roads and forests also limit Arab expansion. The Galilee and Negev plans, in the 1980’s, totally ignored the existence of some Arab locales, thus creating the phenomenon of unrecognized Arab villages (among them Ramya, mentioned above). The policy behind these plans is to fill in built-up areas and prevent expansion. “The tools for implementation are higher density building, usually vertical. For the villagers, this is culturally foreign, as their traditional communities are based on horizontal development.” (Khamaisi, p. 10) If a family’s land lies outside the zone authorized by the master plan for the village, it often has no choice, given overcrowding, but to build illegally and risk destruction of the house.
Khamaisi continues: “To limit the development and expansion of Arab villages, a local outline plan is prepared for every recognized village. …The explicit goal of local plans is to improve the standard of living among Arabs, by copying and using modern, western, urban planning, and imposing it on traditional, eastern, village communities. The implicit goal, however, is to reduce the territory of Arab localities. Urbanization, because of its positive connotations, is a way to take land from its owners while purporting to help them. Furthermore, in urban localities, the government can concentrate people, reduce its expenditure on …infrastructure, and increase housing density. Finally, urbanization limits population increase…” (Khamaisi, p. 11. My emphasis – MS.)
The last words point to Israel’s major anxiety and motive: demography. It is hoped, apparently, that lack of housing will cause Arabs to have fewer children. For despite the immigration of a million Jews in the 1990’s from the former Soviet Union, the proportion of Arabs (who are not permitted to immigrate) has held its own at 18%. They constitute the majority in central Galilee, which borders on Lebanon, and in the Triangle, which lies between the coastal plain and the West Bank. This demographic factor will remain the major driver of Israel’s policy in the allocation of land.
In the light of these larger realities, Mazuz’s decision cannot be called historic.
If you win in court, so what?
The lack of housing in the Arab sector pushes hundreds of young Arab couples to seek apartments in nearby Jewish areas, such as Makosh Hill in Carmiel and Nazareth Illit. If they succeed, it will usually be as renters, although some do manage to buy. Their entry provokes racist expressions on the part of Jews who oppose having Arab neighbors and who worry that they will bring down property values.
In 1995 the Qaadans, an Arab family, tried to buy land in a new community settlement called Katzir, which was established by the Jewish Agency. They encountered the same administrative obstacle that had kept Arabs out of all such settlements. (The first “community settlements,” in the late 1970’s, began as tiny “lookouts” [mizpim] in areas that were heavily Arab and that the government was anxious to “Judaize.”) When land is allocated to a community settlement, three parties must sign the contract for the lease: 1) the ILA; 2) the Jewish Agency; and 3) the Jewish settlement as a collective. In order to obtain a plot in such a settlement, a person must be accepted into a cooperative incorporating all residents of the community. The cooperative has the power of selection and veto. Thus the method of keeping Arabs out – and not only Arabs, but also Jews of unwanted ethnic backgrounds – is deeply buried in administrative procedure.
Stymied, the Qaadans went to ACRI, which petitioned the High Court. For five years the justices tried to avoid a decision, seeking to persuade the sides to settle the matter between themselves. In the year 2000, having exhausted all the quiet remedies, the Court was forced to rule. This ruling formed the precedent for Attorney General Mazuz’s recent decision. (See main article.)
A four-to-one majority on the Court ruled in favor of the Qaadans – undermining the above-mentioned administrative procedure for blocking Arabs. The State could not “allocate State land to the Jewish Agency for the establishment of the Katzir community settlement on the basis of discrimination between Jews and non-Jews.” Yet the judges put no teeth in their decision. They merely told the State to consider whether “on the basis of the equality principle…it could allow the petitioners … to establish a home in the confines of the Katzir community settlement.” (BGZ [Bagatz] 6698/95 Par. 40)
The State’s institutions followed suit by dragging their feet, hoping to weary the Qaadans. ACRI therefore submitted a new petition in 2004, and the High Court issued an interim order that a plot must be left open at Katzir until the judges finish their deliberations. The ILA, meanwhile, has agreed to allocate a plot for the Qaadans, but ten years after they first applied, the Community Settlement of Katzir continues to erect impediments.
Adel Qaadan, father of the family, has told Challenge that no existing government body will impose the High Court’s decision on Katzir’s local council. Despite the long period of thwarted expectations, during which the Qaadans have felt the effects of Israeli racism on both fronts, governmental and personal, Adel Qaadan remains optimistic. “Mazuz’s decision creates an important precedent,” he told us, “but it will take the State time to digest it. In the end, it will be impossible to keep Jews and Arabs from living together.”