An Expert Unravels the Complexities of Land Ownership in East Jerusalem
Upon occupying East Jerusalem in 1967, Israel inherited a complex and layered system of land administration from the Jordanian, British Mandate, and Ottoman authorities who preceded it. This complexity extends to the many religiously endowed properties across the city, including Muslim waqf and church-owned lands. These different land systems created cumbersome legal, political, and social realities. For this and other reasons, Israel froze the modern process of land settlement and registration (LSR) in the city at that time, a decision it preserved for 51 years and only reversed in 2018.
How did Israel manage to sidestep these preexisting land regimes and move on to confiscate much of the Palestinian land of East Jerusalem? What of the remaining land, whether religiously endowed or otherwise? Given the 2018 reversal, what is at stake for Palestinians of the city and their ongoing pursuit to remain legally and permanently connected to their lands?
Jerusalem Story sat down with Dr. Rassem Khamaisi, urban planner and professor of geography and environmental studies at the University of Haifa, to discuss the realities of land settlement and registration (LSR) in East Jerusalem. LSR, which follows the Torrens title system (see The Complex and Unresolved Status of Land in East Jerusalem), is a modern and formal mechanism of land registration through which the location, boundaries, and ownership of a given plot of land are determined with the issuance of a title by a state land registry office (known as the Tabu in Israel). This is meant to replace the deeds-based registration system, which makes land transferals more cumbersome and costly.
Between 1967 and 2018, Israel froze modern LSR in East Jerusalem due to the complexity of registering and transferring to the Israeli state Palestinian lands that had been registered under the Ottoman, British, or Jordanian land regimes (see Land Settlement and Registration in East Jerusalem). The different and sometimes conflicting systems in place meant that Israeli authorities would need to settle countless disputes between Palestinian families and communities over property boundaries, inheritance, and so on, while also replacing them with a formal system that reflected Israel’s interests. After 51 years of freezing LSR in East Jerusalem, however, the Israeli government issued Decision 3790 in 2018, mandating the resumption of the modern LSR process.
In this interview, Dr. Khamaisi contextualizes Israel’s Decision 3790 both historically and contemporarily. He presents a critical narrative of the resumption of LSR, including when it comes to religiously endowed properties, focusing on the Israeli motives behind it and the challenges it faces in implementing it. He concludes by offering cautionary advice to Palestinians regarding taking part in the modern LSR process.
Jerusalem Story: How has Israel navigated the complex history of land administration in Jerusalem?
Rassem Khamaisi: The struggle for control of the land between Palestinians and Jews in Jerusalem is taking place in two circles. The first is between the Government of Israel, including the Jerusalem Municipality, and Palestinian individuals and institutions. The second is among the Palestinians themselves, and, in some cases, between Palestinians and Jewish individuals and institutions.
The conflict in the second circle revolves around real estate and is directly connected to the implications of the first circle. That is, the Israeli government is driven by its ideological motive of controlling the land—thereby de-Palestinianizing it—by any means possible, legal or otherwise, informing the ways in which it settles land disputes between Palestinians and Jews. One way Israel does this is through manipulating the complex land registration mechanisms that have existed in Jerusalem for centuries in order to secure legal Jewish control over the land.
Land in Jerusalem has been subjected to multiple systems of land registration, including the Ottoman, British, and Jordanian systems, as well as customary and tribal systems that have existed in historic Palestine for centuries. When Israel occupied East Jerusalem in 1967, it inherited this catalog of systems and subsequently froze any form of LSR in the city. While illegal under international law, Israel unilaterally extended its jurisdiction over the lands it occupied in East Jerusalem, including in the management of land [see Where Is Jerusalem? The Uncertain and Unfixed Boundaries of the City]. That is, while Israel is required to manage the lands it occupied in 1967 in accordance with the existing laws that governed them—i.e., under Jordanian, British, and Ottoman laws—it has not, and has instead replaced them with a new, modern system following 51 years of freezing LSR in East Jerusalem. In doing so, Israel has disregarded local customs and customary laws, adopting, since the 1960s, official laws that have ensured the transfer of hundreds of thousands of dunams to the ownership of the Israeli state.
Upon the instatement of the British Mandate for Palestine in 1923, British authorities made amendments to the Ottoman land laws that had been in place in Palestine since the 19th century. These modifications were meant to facilitate Britain’s civilian and military control of the land, with complete disregard for the needs of the Palestinian population. For example, British Mandate authorities enacted the Land Acquisition and Settlement Law in 1926, later amended in 1928, and the official Survey Department was established in 1930, forbidding the settlement of most of the land of Jerusalem.
When Jerusalem was divided in May 1948, the new State of Israel took over its western side, while the eastern side fell under Jordanian rule [see The West Side Story, Part 4: The Erasure of the New City and Its Transformation into Jewish West Jerusalem]. Each authority subsequently began settling the lands on either side of the Green Line, but with varying acceleration. On the one hand, Jordanian authorities delayed the settlement procedure, did not complete it on all the lands in the vicinity of Jerusalem, and kept areas of land administered under customary law, as well as Ottoman law.
On the other hand, Israel manipulated Ottoman, British, and Jordanian systems to administer land in Jerusalem—first in 1948, then again upon its occupation of East Jerusalem in 1967. Importantly, it made amendments to provisions in these laws whenever they did not ensure the state’s authority over land. As a result, Israel made sure to supersede all existing land regimes in East Jerusalem, including by inheriting all the lands that were registered in the name of the state or those whose owners did not prove their ownership under new Israeli laws.
That is to say that Ottoman land law classified land into six categories (mulk, miri, waqf, matruki, mawat, and musha), three of which belong to the state [see The Complex and Unresolved Status of Land in East Jerusalem]. Israel appropriated those state lands, in addition to waqf lands that were managed by the Supreme Muslim Council. This council, which was formed in 1922, was granted autonomy by British Mandate authorities in managing religious affairs, including the administration of endowed lands. However, Israel dissolved the Supreme Muslim Council in 1950 and classified its lands as absentee properties, thereby enabling the confiscation of the council’s lands by the state [see How Israel Applies the Absentees’ Property Law to Confiscate Palestinian Property in Jerusalem]. Intriguingly, Israel left most of the lands belonging to Christian churches to the churches, except in cases of illegal transfer.
Importantly, Israel made sure to centralize land administration under a military and civilian system of government, which it inherited from the British Mandate. That is, prior to British rule, the Ottoman state was far less centralized than its successors, including in land administration, granting subjects of the empire more autonomy in local matters. However, upon their departure from Palestine in 1948, British Mandate authorities transferred the lands they controlled to the new State of Israel. Thus, British Mandate policies set a precedent for the highly centralized structure of the Israeli state. Indeed, 93 percent of the land of historic Palestine that falls under direct Israeli sovereignty is owned and administered by the state. This was legislated in the 1960 Basic Law: Israel Lands, which also assigned the administration of these lands to the newly created Jerusalem Development Authority. The Development Authority continues to collaborate with the Jewish National Fund (JNF) and Israeli state to confiscate and sell land in East Jerusalem with the goal of Judaizing the city. In this way, Israel has used a sophisticated and strategic system of legal interpretation of existing land regimes (whether Ottoman, British, or Jordanian) in order to take sole control over land across historic Palestine, including in occupied East Jerusalem.
JS: What is the status of Muslim waqf and church-endowed lands in Jerusalem in light of the formal process of modern LSR?
RK: The Ottomans included religiously endowed lands under the six classifications of land and real estate, according to their specific Islamic waqf sponsorship and church sect. As a result, Islamic waqf institutions and churches are central landowners in and around Jerusalem. Indeed, much of the land in Jerusalem is owned by Christian and Muslim religious institutions that are responsible for legally managing the endowments. Over the course of the last century, however, the official status of many such endowed lands in and around Jerusalem has changed, largely through leakage to private and foreign entities, including Zionist Jews. It is therefore difficult to determine the exact scope of religiously endowed lands and properties in Jerusalem.
The absence of a formal, digitized LSR process according to the Torrens title system facilitated leakages and changes in ownership of endowed lands and real estate. More specifically, the fact that endowed lands are registered using traditional records—and guesswork—makes it difficult to define the exact boundaries of a given tract of land, which poses a big problem for religious institutions in defending their rights to ownership. Moreover, some of the endowments that have been leased were monopolized by beneficiaries who passed them down through generations, making it challenging to distinguish between endowed and private lands, as well as miri and matruki lands, within the city.
There are also differentiations within endowed properties. Endowed lands upon which religious institutions like mosques, churches, cemeteries, schools, and so on, are established are delineated by stone barriers. These properties are different from open endowed lands that are either cultivated or later developed with urban construction. In the absence of a modern LSR system, it became particularly difficult to determine the exact boundaries of these open lands that undergo frequent transformations. This begs a question: Why have religious endowment institutions not settled and registered these lands? Moreover, how would their status as waqf and church-endowed properties affect the process of formally settling and registering them through the Israeli Land Registry? Would the laws and procedures differ?
Simply, the Israeli system does not differentiate between religiously endowed lands or private lands in terms of the process of formal LSR. Any property claims that Palestinian Jerusalemites submit to the LSR commissioner (appointed by the Ministry of Justice) must be based on their status as privately owned lands, as miri lands whose use and ownership can be proven within three years, or Christian or Muslim religiously endowed lands.
As is the case with individual owners, representatives of endowed lands are apprehensive about settling and registering lands. This is because the process includes many requirements that religiously endowment institutions may not be able to fulfill in order to be listed in the registry and be given a koshan (title deed) in the name of the endowment. Inability to formally register a land with the Tabu subjects it to confiscation by the Israeli state. Indeed, as far as the highly centralized Israeli state is concerned, all lands are state land, including religiously endowed lands, unless proven otherwise.
The LSR process usually progresses as follows:
- At least a month before the LSR process begins, the LSR commissioner releases a public statement on the government’s website or elsewhere announcing the intention to register specific plots of land. Thereafter, any parties with ownership claims must present them, including waqf institutions and churches. In addition to documentation proving ownership, property owners must submit tax papers clearly showing that the property has not incurred debt. For waqf properties, owners must prove, through documentation, the director or warden of the properties, and that the waqf was not registered in the name of the Supreme Muslim Council. If it had been, it could be liable for confiscation under the Absentees’ Property Law [see How Israel Applies the Absentees’ Property Law to Confiscate Palestinian Property in Jerusalem].
- Once all ownership claims have been submitted, the LSR commissioner publishes them, allowing for a period of public review and objection. Should there be an objection to the published claims, the matter is transferred to an Israeli district court for ruling on property ownership. It is in these instances that Muslim claims over waqf properties are often denied, as the documentation needed to prove ownership is deemed insufficient. As a result, these properties are leaked to third parties or simply confiscated by the Israeli state. In some cases, disputes over waqf ownership take place among waqf institutions—disputes that are worsened as a result of the LSR process and that may lead to the loss of the property to a third (Israeli) party.
- After the LSR commissioner and district court verify ownership of the land, the table and map of property rights and settlement are published, conclusively determining the right of ownership for each plot of land. This is registered in the Tabu.
For many waqf institutions, this formal system is daunting, as it risks their losing ownership over their properties, many of which were registered according to Ottoman land laws. These include miri, matruki, and mawat lands, ownership claims over which were negligible after 1967. That is, land registered under Ottoman land laws that came under the jurisdiction of the Jordanian treasury upon the division of Jerusalem in 1948 was transferred to the State of Israel upon its occupation of East Jerusalem in 1967. This includes areas that were labeled as “no-man’s-land” during the British Mandate, as well as waqf properties such as the Khalil al-Rahman waqf, the Tamim al-Dari waqf, and the waqf of the Honorable Rock, among others.
Thus, Muslim and Christian endowment institutions are not enthusiastic about participating in the LSR process. Beyond this concern, many representatives of religious endowments refuse to participate in the LSR process because they consider it a recognition of Israel’s annexation of East Jerusalem, which it unilaterally did in 1980 in contravention of international law. Indeed, they see the formal process of LSR as a way to further the Judaization of Jerusalem, irrespective of its potential benefits.
JS: What are the potential benefits to Palestinians of undergoing a formal LSR process with the Israeli state?
RK: Following Decision 3790 in 2018, which unfroze LSR in East Jerusalem, Palestinians are faced with three possibilities: (1) not entering into the LSR process and risking the Israeli state confiscating their land; (2) entering into the LSR process and losing their claims to the land; or (3) entering into the LSR process and successfully registering their land, thus securing their rights to it and the city. Despite the many serious repercussions for Palestinian property ownership in Jerusalem involved in the first two scenarios [see Land Settlement and Registration in East Jerusalem], there are notable benefits in the third scenario that could contribute to empowering Palestinian Jerusalemites.
The following possible benefits assume that Palestinian property claimants have succeeded in the LSR process, and have been issued a koshan and map of the land:
- Establishing ownership rights, including real estate rights, to the land with Israeli governmental authorities. For individual owners and beneficiaries, this would secure their belonging to the city.
- Resolving disputes related to land boundaries and property rights between heirs, neighbors, or any claimant over the land. This contributes to enhancing Palestinian social fabric in the city, including by securing the rights of marginalized members of society, such as women and differently abled people, to their property and inheritance rights.
- Registering the land in the name of its original owners protects them, reducing the possibility of leakage to third parties. It also enables the preservation and protection of public property, including endowment lands.
- Increasing the value of the property. With the issuance of a koshan, properties are valued at a much higher rate, encouraging investment. This is because a koshan facilitates the owners securing the necessary licenses and loans needed to develop commercial and productive projects on the property, allowing for future infrastructural development and investment.
- Securing the ownership rights of Palestinian Jerusalemites living abroad, thus reducing the chances of the Israeli state revoking their citizenship or residency status in the city.
- Pressuring the Israeli state to fulfill its responsibilities toward landowners in the city, including by preserving stability and banning leakage, extortion, and other methods of land extraction.
- Enabling landowners to produce detailed land plans, propose infrastructural development on their lands, and lay a foundation for issuing building permits in case of housing crises.
- Resolving ongoing disputes over access roads to different properties. Undergoing formal LSR would confirm the exact boundaries of a given property, thus ensuring its accessibility by roads.
Of course, this does not mean that all Palestinian Jerusalemites should enter into the formal LSR process with the Israeli state. Indeed, it is unlikely that the majority would be able to fulfill the rigorous and cumbersome requirements and be issued koshans. However, Palestinians in Jerusalem must weigh their options carefully and do so with full awareness of the possible repercussions involved. To do so, they must seek the leadership of those more experienced with land administration, including the Palestinian Land Authority, community elders and activists, as well as legal and land experts.
Most importantly, Palestinians must come together to map out and subsequently resolve their multilayered and complex claims to the land. Only through consensus can they stand a chance at presenting irrefutable ownership claims in the face of an Israeli system bent on confiscating their lands.