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Home , Mandatory Palestine, West Bank

The Rights of Displaced in their Country of Origin: Land Ownership and Residency

Ingrid Jaradat Gassner

18-19 June 2019 Background

What is the County of Origin of Displaced Palestinians?

Who are the Displaced Palestinians? The Country of Origin , the country administered by Great Britain until 1948 today and the Occupied Palestinian (OPT)

Size 27,024 km2 (less than 2/3 of Switzerland) Israel: 20,770 km2 OPT: 6,220 km2 , incl. E. : 5,860 km2 : 365 km2

Population today (approximation) ISRAEL 8.7 mil Jews (incl. in OPT) 6.7 mil Palestinians 1.6 mil Others 0.4 mil

OPT, Palestinians 5 mil West Bank, incl. EJ 3 mil Gaza Strip 2 mil Palestine Succession of authorities 1917 – 15 May 1948 Great Britain Occupied by Britain, defeat of in WWI Administration based on Mandate, : Palestine to become an independent state & a “national home for the Jewish people” to be established in the country Internal conflicts over Zionist , quota on Jewish immigration February 1947 Britain announces intention to withdraw from Palestine Nov. 1947 – May ‘48 UN plan, civil war in Palestine 15 May ‘48 - 1949 British withdrawal, declaration of of Israel, war between Arab states and Israel 1949 – Present Israel in 78% of British 1949 – 5 annexes West Bank; Egypt administers Gaza Strip 1967 war - Present Israel as occupying power in West Bank and Gaza Strip (OPT) The OPT today: Limited Palestinian Control

Israel in effective control of the OPT, incl. borders, airspace + de facto of 60% of West Bank + blockade of the Gaza Strip since 2007

Powers of PA/ limited to administration of Palestinian population & land in 40% of West Bank (“Areas A and B”)

Similar limited powers of government in Gaza

Egypt in control of its borders with the Gaza Strip Displaced Palestinians: Common language definition

(Descendants of) the indigenous Arab population of British Mandatory Palestine who fled/were removed from their homes, villages and towns and have been unable to return,

• Primarily due to the colonization of their country • Mainly in the context of: Creation of the state of Israel in 1947-9 The June 1967 war and Israeli conquest of the West Bank & Gaza in June 1967 • But also between and after these events (displacement is continuing) • 1947-9 displaced are “refugees” under UNGA Resolution 194 (1948) • June 1967 displaced are “Displaced persons” under UNSC Resolution 237 (1967) • UN resolutions have called for the return of these groups • Members of these groups fall under Article 1D, Refugee Convention, when present outside of UNRWA’s of operation and requesting asylum Nationality, Citizenship, Residency & Landownership in the Country of Origin:

What Obstacles to the Exercise of these Rights? Main Obstacles - Overview

Laws and military orders of Israel, the successor state and occupant: • Denationalize Palestinians • Bar restitution of “state land” appropriated from displaced Palestinians PA/State of Palestine/PLO – due to the Israeli occupation – unable in the OPT to: • Complete settlement of title and land registration • Grant effective Palestinian nationality, citizenship, residency & land rights No redress through courts: displaced Palestinians have no access to an impartial court that could examine and rule on these rights vis-à-vis Israel Difficult & costly access to documents that prove landownership of Palestinians : • UNCCP database of refugee property lost to Israel (1948): not public • No centralized register/archive • Complicated record of land tenures (based on Islamic/Ottoman, -European, Anglo-Saxon Common Law system) requires expertise Misperception about displacement of Palestinians; lack of political will internationally to protect and promote their rights in the country of origin 1. Issues of Nationality & Citizenship legislation British Mandate Israel • Palestinian Citizenship Israeli Citizenship (!) Law (1952) Order (1925): Former Severed the legal bond between 1948 Ottoman subjects present and their COI: in the country on 1 August • Repealed the Palestinian Citizenship Order 1925 & naturalized Jewish • Conditioned citizenship of *, former immigrants were nationals citizens of Palestine on: (1) Registration in the Israeli census in March 1952, (2) and citizens of Palestine Residency in Israel on 14 July 1952, (3) • After Britain’s withdrawal in Presence in territory that became Israel 1948, the country’s from 15 May 1948 – 14 July 1952 inhabitants retained this status: Britain terminated 1967 Palestinian refugees also excluded – its jurisdiction in Palestine due to non-registration in the June 1967 but left British laws in force population census - from the population in Palestine as part of the considered ‘lawfully present’ in the OPT. country’s domestic legislation (Palestine Act, 29 *Jewish nationality and citizenship is based on separate April 1948) provisions (see notes) Palestinian displaced abroad:

 No legal bond with Israel  No legal right to citizenship or residency in their COI  No standing in Israeli courts to claim these rights

May be granted: • Short-term visits as foreign tourists in Israel & OPT - if holding a passport of a third country • via family reunification (Entry into Israel Law 1952, Citizenship Law 1952, Entry into Israel Regulations 1974)

BUT: Grant of permanent residency via family reunification: • Prohibited in Israel & annexed for citizens & residents, incl. Palestinian refugees, of Lebanon, , , West Bank, Gaza (Citizenship and Entry into Israel Law Temporary Provision, 2003) • Put on halt in the West Bank & Gaza by Israel since 2000 2. Landownership: Legislation & Registration under British Mandate

BRITISH MANDATE In parallel: Maintained Ottoman land regime, incl. British land settlement of title land register: (cadastral system) • Ultimate land ownership with the • Main purpose: identify state (Sultan)/State land for allocation to the • Most Palestinians: customary land Jewish colony rights (miri), incl. inheritance, sale • Started but not completed: • Land register (tapu) obsolete: no title settled in only 18% of cadastral system; many did no register Palestine by end-1945 at all, or registered only a portion of the land (avoid taxation) By the end of the British Mandate:

Most Arab-Palestinians (individuals, communities) did Landownership in Palestine (1947): not hold tapu registration over Indicative, based on British Land Register the full amount of land they owned. Arab: individually 48% Many had not registered at all. owned Jews: JNF, Jewish 6% Colonization Ass. As a result, a substantial portion a.o. of their land remained registered in the name of the State (incl. un- 44% State/British High registered & Commissioner. unsettled private Arab property) Israel: Land laws & military orders (OPT) All land of 1948 Displaced Palestinians appropriated by the State of Israel, mainly based on: State Property Law (1950): appropriation of all land recorded in the British Mandate land register as state land held by British including land of Arab Palestinians not registered or title not settled Absentees’ Property Law (1950): Established the Custodian of Absentees’ Property that took control – and later transferred to state ownership – all immovable and movable property owned in Israel by persons defined as “absentees”. “Absentee” = any natural or legal person who: At any time between 29 November 1947 and the day Israel’s state of emergency is abolished [it is still in force], • Was a national or citizen of Lebanon, Egypt, Syria, Saudi Arabia, Jordan, Iraq or ; • Was in any of these countries or in a part of Palestine outside the area of Israel; or • Was a Palestinian citizen and left his ordinary place of residence in Palestine • For a place outside Palestine before 1 September 1948; or • For a place in Palestine held by forces that sought prevent the establishment of the State of Israel or fought against it after is establishment. Victims of the Absentees’ Property Law include: • 1948 displaced Palestinians in Israel (“present absentees”) • Since the 1967 Israeli annexation of occupied East Jerusalem also Palestinians residing in the OPT (outside East Jerusalem) or in one of the countries listed in the Law, who own property in East Jerusalem

Today, 97% of the land in Israel is state land, most of it appropriated under these and other laws from Arab Palestinians.  Repossession of this land is barred by the Basic Law Israel Lands (1960) which prohibits transfer or sale of state land (“Israel Land). In the OPT since 1967 (outside East Jerusalem)

Jordanian settlement of title and land registration in West Bank halted by Israeli army immediately after occupation Israeli military government taking Palestinian land mainly by: • Enforcement of closed military zones • Declarations of State Land that also disregard the customary land rights of Palestinians under the Ottoman Land Code Today, approximately 1/3 of West Bank closed military zones. Some 22% declared Israeli state land • Israeli settlements encroaching on private Palestinian land  Displaced Palestinian can challenge in Israeli courts declarations of state land, if they hold tapu registration or are able to document continuous cultivation or commercial use of their West Bank land. BUT: difficult and costly due to Israeli manipulation of the meaning of Ottoman Land Code & high level of evidence required (including aerial photos)  Petitions against de facto appropriation of private land by settlements: sometime successful in the past, but repossession delayed or partial. BUT: Law for the Regulation of Settlement in and (2017) officially sanctioned the taking of private land against compensation of owners. 3. PA-State of Palestine-PLO: Nationality, Citizenship

Non-sovereign entity in the OPT: no nationality/citizenship law adopted. PLO Charter: descendants of Arab inhabitants of British Mandate Palestine are Palestinian nationals Palestinian nationals residing in the OPT: de facto citizens of the State of Palestine • PA/State of Palestine unable to issue passports/ID cards for entry and stay of Palestinians – stateless & other – in the OPT. Israeli-issued serial ID number required: granted only to Palestinians included in the population registers/West Bank and Gaza administered by Israeli military government and Interior Ministry • Palestinian embassies abroad issue Palestinian passports without Israeli serial number upon request. These do not facilitate international travel of Palestinians who are stateless/do not possess another valid travel document, because Palestinian passports without Israeli serial number are not internationally recognized. (Unconfirmed news: several thousand Palestinian refugees, Syria, stuck in Gaza on “zero number Palestinian passports) PA-State of Palestine-PLO: Landownership

By 1995 (PA established): no settlement of title & registration of 70% of the land in the occupied West Bank, incl. in-around the of Jerusalem Since early , settlement of title and registration resumed – but not completed - by the PA, with international support (, a.o.), and by the Palestinian private sector, mainly in urbanized areas (“A, B”) under Palestinian administration.

• In over 60% of the occupied West Bank (Israeli-annexed East Jerusalem, ), Palestinian land surveys for settlement of title are prevented by Israel (“Israeli state land”) • Scarcity & rising price of land resulting in communal disputes, conflicts • PA law: sale of land to severely punishable (imprisonment, death sentence). Land sales to Israel by foreign institutions (Greek Orthodox Church) & via strawmen that target displaced Palestinians with title deeds abroad escape enforcement. 4. Lack of Access to Legal Redress

• Displaced Palestinian outside Israel-OPT: (1) no standing in Israeli courts to claim rights to return, citizenship or residency; (2) lawsuits in Israeli courts cannot result in repossession of land in Israel appropriated by the State (barred by Basic Law: Israel Lands) • Where lawsuits for restitution of land rights in Israeli courts are possible: complex, costly , rarely resulting in full repossession • Lawsuits against on-ongoing forcible displacement have delayed – but rarely prevented– home demolitions and forced evictions • No international (UN) tribunal ever established to examine rights and claims of displaced Palestinians vis-à-vis Israel (lack of political will) • Most displaced Palestinians cannot seek justice in courts of third countries: high cost, problems of legal standing & jurisdiction, lack of expert support • Dozens of law suits (war crimes and crimes against humanity) in courts abroad by Palestinian residents and HR organizations in the OPT. Result: some deterrence; few substantial hearings, no verdicts. Courts deny admission or close legal proceedings & parliaments changed universal jurisdiction laws, mainly due to political interference by governments. • Palestine’s case in the ICC since 2009: still in the stage of preliminary examination for the same reason. 5. Landownership documents: issues of access, interpretation

UNCCP database of Palestinian property lost to Israel in 1948 • Documented private property of Arab Palestinians: 1,5 mil. individual holdings. In total 16,324 km2 of land (62% of British Mandatory Palestine) • Digitization (GIS) completed in 2000; users can retrieve data of each plot • Not public (not clear who has access)

• Record of land transactions & titles is scattered: Ottoman archives (Istanbul, , PA); British Mandate archives (Israel State Archives); Jerusalem Shariyya Court ( property), church records, private archives, the Israeli Land Registry (Ministry of Justice) … • Land titles (tapu) issued under the Ottoman Land Code, as well as tax receipts, do not specify the exact location and size of plots. Situating them in the cadastral maps of Israel or PA requires expertise • Documents in Ottoman language not understandable for contemporary or Turkish speakers