Ottoman Land Law and apportionment in Palestine-Israel - Government owned over 92 percent of the Land - YJ Draiman

To truly understand the status of this territory in Israel, 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” is a classic example of the ignorance of history and law that governs most discussions of Israeli actions beyond the internationally hallowed “Green Line.” Media headlines around the world screamed about “annexation” and “land grab,” Israel can not be addressed as occupiers in their own land and the Arab-Palestinian Authority declared it a “crime” and foreign ministries around the world have demanded the reversal of the decision, even-though it is against international law and treaties to declare Israel as occupier. However, few articles, press releases or communiqués mention the crux of the matter; the legal and historical status of the land in question. Ottoman land ownership law – It is time to learn the facts about Judea and Samaria and many other parts of the legal boundary of Israel as delineated under international law and treaties of post WWI, which also allocated over 5 million square miles to the Arabs and Palestine's 75,000 square miles to the Jewish people as their National Homeland in 1920. Over 78%  of that Jewish territory was illegally allocated to the Arabs as the State of Jordan on all the area east of the Jordan River and Jewish land and assets was confiscated, Furthermore, Jews were prohibited from purchasing property or residing in the new Arab State of Jordan.

For many, if not most, around the world, every inch of land beyond the 1949 armistice lines is incorrectly thought to be automatically Palestinian; a display of unfamiliarity with history, international law and executed international treaties of post WWI.

To truly understand the status of this territory in Greater Israel we have to first differentiate between the personal and the national as the law of the land in the 1800, prior to WWI.

Of course there is limited land privately owned by Arab-Palestinians in Judea and Samaria, what many call the “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 under the tern known as "eminent domain". These areas, according to Ottoman and British records, constitute no more than a very few percent of the total area of Palestine, meaning the vast majority of land in Palestine is not privately owned.

However, to contend that these territories are “Arab-Palestinian” on a national level is more than problematic and seems intentionally deceptive. 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 Arab-Palestinians. In the January 1919 Faisal Weizmann Agreement it was stated that Palestine shall be the land for the Jewish people, while the Arab nations will own the rest of the land.

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 San Remo Treaty of 1920 confirmed by the 1920 Treaty of Sevres and Lausanne adopted by the League of Nations as the Mandate for Palestine, 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. It must be understood that the League of Nation and the UN nor the ICJ cannot over-ride international law and treaties. The UN can only recommend under its resolutions and those recommendations must be accepted by all the parties or those recommendations are meaningless. The Arabs have continuously rejected all resolutions of apportionment of the land and therefore all those UN resolutions which are recommendations only have no affect whatsoever.

For the past over 2,400 years, since the destruction of the Jewish temple and the loss of Jewish sovereignty in the land of Israel and the expulsion of many of its indigenous people, it remained under an enemy control and occupied as an 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 Code of 1858, land had largely been owned or passed on by word of mouth, custom or tradition. Under the Ottomans of the 19th century, land was apportioned into three main categories: Mulk, Miri and Mawat.

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 ottoman 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, which is the same as sharecroppers. Ownership to cultivate 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 the title 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 in Palestine.

The area recently declared “State Land” by the Israeli government, a process which has been under an intensive ongoing investigation for many years, is Mawat land. In other words, it has no private status and is not privately owned.

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 liberated “occupied territory” that according to international law the liberating 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. It is only a liberator of its historical ancestral land.

None of these facts are even alluded to in the many reports surrounding the government’s actions in settlement and housing. 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.

Many nations and people are questioning Israel’s control of its own liberated territory. No one is mentioning that the Arab countries had terrorized, persecuted and ejected over a million Jewish families and their children (who lived there for over 2,400 years) from their countries, confiscated their assets, businesses, homes and Real estate property. Most Jewish families and their children of these expelled Jewish families and their children were resettled in Greater Israel and now comprise over half the population. The Land the Arab countries confiscated from the Jewish people is over 120,000 sq. km. or 75,000 sq. miles, which is over 6 times the size of Israel, and its value today is the trillions of dollars.