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OpinionIsrael-Palestinian Conflict

The sovereignty debate, down on the ground

Thus far, the debate has failed to explain how sovereignty—or a lack thereof—impacts the lives of the people living in Judea and Samaria, no matter who they are.

View of Efrat, in Gush Etzion, Judea and Samaria, on January 6, 2020. Photo by Hadas Parush/Flash90.
View of Efrat, in Gush Etzion, Judea and Samaria, on January 6, 2020. Photo by Hadas Parush/Flash90.
Naomi Kahn
Naomi Kahn is director of the International Division of Regavim, a research-based think tank and lobbying group dedicated to preserving Israel’s resources and sovereignty.

The debate surrounding the application of Israeli law to Judea and Samaria—all, part or none of Area C—has taken up quite a lot of the airwaves, columns of print, seemingly endless hours of public discussion and debate and international diplomatic energy.

Thus far, the debate has been high-brow, focusing on geopolitical scenarios, legal rights and wrongs, ethics and history, but has failed to explain how sovereignty—or a lack thereof—impacts the lives of the people living in Judea and Samaria, no matter who they are. When it comes down to it, how will the application of Israeli law to Jewish communities in what is known as Area C, the portion of the disputed territory designated for full Israeli jurisdiction under the Oslo Accords, affect regular people living there?

To sharpen the focus on this seemingly simple question, we must first understand the current reality—the “temporary” situation that has existed since June 1967, and the mechanisms through which Israel continues to administer this territory and to oversee the lives of its residents.

After Israel’s crushing victory in the 1967 Six-Day War, the Israeli government was apparently frightened by its own success. Rather than taking the natural, normal, standard steps that have always been taken by governments to secure their own borders after a war of self-defense, Israel did not restore the originally intended and internationally recognized borders of the Jewish State by reinstating its sovereignty over the liberated territory of Judea and Samaria—which had been occupied illegally by Jordan for 19 years. Instead, Israel voluntarily placed this territory in a state of limbo, relegating its status to “disputed territory” and placing it under military rule. The law that would be enforced in these areas regarding property rights, it was decided, would revert to the system enacted by the last known sovereign—in this case, the Ottoman Empire.

Unbelievable as this may seem, Ottoman Land Law continues to be the law of the land in Judea and Samaria. Contrary to what far too many journalists and foreign “Middle East experts” whom I have met believe, the Ottoman legal system is enforced by the State of Israel across the board; it applies to both Jewish and Arab residents of Area C.

This anomalous situation is, in a nutshell, what makes the application of Israeli sovereignty in these areas so important, so logical and so beneficial for everyone who lives there, and for the State of Israel and its neighbors, as well. Simply put, Ottoman Land Law makes no sense in today’s world, and the situation as it stands is untenable.

The system of law currently in force in Judea and Samaria is so outmoded that it was abandoned everywhere else in the world more than 100 years ago. Some of the most egregious aspects of this bizarre system are rarely discussed. For example, under Ottoman law, you can steal someone else’s property simply by using it for awhile; under Ottoman Land Law, women are not allowed to own, inherit, buy or sell property; under Ottoman law, private individuals may lay claim to public property simply by planting trees on it.

Many of these loopholes have been exploited to Israel’s extreme disadvantage, but the underlying principles of this outrageous system are infuriating even on paper—and this is the law that Israel’s courts (headed by a female chief justice and administered by great legal minds) enforces upon on Jews and Arabs alike, only because the State of Israel has not had the nerve to replace it.

To make matters worse, the most recent State Comptroller’s report on the Civil Administration (the arm of the Israeli defense and civilian systems tasked with serving the population of this area and enforcing the strange, multi-layered system to maintain law and order), spotlights the procedural nightmares, the jurisdictional morass and the outrageous discrimination—against Israelis—that has been caused by the failure to extend Israeli law to these areas.

Even a cursory read between the lines of the State Comptroller’s report is a shock to the senses. The purpose of the State Comptroller’s report is to identify the gaps, failures and lacunae that inevitably occur within and among the bureaucracies and branches of government, but the quantity and quality of the failures of the Civil Administration outlined in this report illustrate that there is a fundamental problem that cannot be resolved without the application of Israeli sovereignty. Patchwork solutions will not turn the worn and tattered blanket of law that is meant to stave off chaos in the heart of Israel into a more just and democratic instrument.

The State Comptroller’s report highlights the Civil Administration’s built-in “fatal flaws”—flaws that Regavim, an NGO dedicated to preserving Israel’s land resources through the equal and universal enforcement of the law, has been battling for over a decade.

First, the administrative flaw. The Civil Administration is the servant of two masters, as it were—the Israel Defense Forces/Ministry of Defense security apparatus, on the one hand, and the civil sector and each of the government ministries that comprise it, on the other. These two masters don’t get along, don’t communicate and can’t decide who’s in charge of what.

The various unit commanders, who parallel the work of each of the relevant ministries, essentially operate as independent fiefdoms, with no oversight or coordination. The list of gaps goes on and on, and the residents of Area C pay the price when they are forced to deal with the most byzantine bureaucracy on the planet. So, too, do all Israeli taxpayers, who are footing the bill for this ridiculous duplication of services and procedures.

A second massive failing in the system is the basic fact that the Land Registry for Judea and Samaria is not available to Israeli citizens—which in and of itself constitutes a severe infringement of property rights and freedom of information, and a form of discrimination that would not be allowed anywhere else in the world. Additionally, the administration of the Land Registry is completely outmoded. The painstaking, glacial pace of hand-written record-keeping is fertile ground for forgery, and leads to further violation of property rights, making it nearly impossible to conduct property transactions in a normal fashion.

Israel’s failure to carry out the necessary registration and regulation of land in these areas has enabled the Palestinian Authority to carry out a well-planned, carefully-timed and well-funded land-seizure program: Hundreds of thousands of dunams of land in Judea and Samaria have been commandeered through illegal construction and agricultural projects. To make matters worse, the Palestinian Authority has done precisely what the State of Israel has failed to do for more than 50 years, creating its own land registry in areas under full Israeli jurisdiction and redefining reality with facts on the ground.

Those opposed to the application of Israeli law in Judea and Samaria are either ignorant of the glaring injustices that are part and parcel of Ottoman Land Law, or are willing to sacrifice the rights of Jewish residents of Israel’s historic heartland. Those who would maintain the status quo of Civil Administration responsibility for the quality of life of hundreds of thousands of people, Jews and Arabs alike, are holding those people hostage and denying them all a minimum standard of public service and government responsiveness, stymying development and prosperity and squandering the precious natural, human and economic resources that we all could share.

Replacing Ottoman law with the modern, democratic system in force throughout Israel simply makes sense. It will benefit whoever is brought under Israeli sovereignty—Jews and Arabs alike—and will have no impact whatsoever on the path toward a negotiated resolution of the Arab-Israeli conflict.

Although this step is long overdue, now is the time to take advantage of the opportunity to correct historic injustices. Residents of Judea and Samaria deserve the same standards of justice, professionalism and public service as every other citizen of Israel and all other Western societies.

Naomi Linder Kahn is Director of the International Division of Regavim, an Israeli NGO dedicated to protecting Israel’s land resources.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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