Israeli Supreme Court Doctrine and the Battle over Arab Land in Galilee: A Vertical Assessment

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VOL. 40

2010/11

No. 4
P. 24
Articles
Israeli Supreme Court Doctrine and the Battle over Arab Land in Galilee: A Vertical Assessment
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Israeli Supreme Court Doctrine and the Battle over Arab Land in Galilee   A Vertical Assessment

 

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By Geremy Forman
In the mid-1950s, the overwhelmingly Arab central Galilee became the first regional focus of Israeli land-claiming in the context of state efforts to Judaize the region. This article examines the land-related judicial doctrines adopted by the Israeli Supreme Court through the early 1960s that facilitated this endeavor. While previous academic work on the evolution of these doctrines depicts a “horizontal” process proceeding from one SC precedent to another, this article employs a “vertical” approach that focuses on the role of litigant argument and lower-court rulings. The main finding is that in these disputes, SC justices did not merely rule in favor of the state, but consistently adopted the legal arguments advanced by the state, transforming them into SC doctrine and the law of the land.

IN THE LATE 1950s, the central Galilee became the site of a judicial battle over land rights between the Israeli government and the region’s Palestinian inhabitants. The thousands of legal disputes were products of the ongoing struggle between Jews and Arabs over land in the country that began under Ottoman rule and intensified during the British Mandate over Palestine. With the flight and expulsion of much of the country’s Arab population and the establishment of the State of Israel in 1948, the struggle was transformed into one between the new Jewish state and its Palestinian minority, with Israeli officials using state-held land to intensify Jewish control and state law to expand beyond recognition the stock of land available for this purpose.

A pivotal component of Israeli law that enabled the state to increase its landholdings, first in the Galilee and subsequently in other regions, was the land-related judicial doctrines institutionalized by the Israeli Supreme Court (SC) in the early 1960s, just as the judicial struggle over land in the Galilee was reaching its height. These doctrines expanded the legal definition of state land employed during land-title settlement and limited the ability of private claimants to acquire title, thereby strengthening the hand of the government at the expense of local residents. Because the lion’s share of unregistered land in Israel was located in predominantly Arab areas, and because most land registered in the name of the state during the process was designated for Jewish settlement, these doctrines must be understood as having helped provide the territorial foundations for Judaization and shape Jewish-Arab ethnonational geographies of power in the young country.

Although these doctrines’ histories have been explored elsewhere, this article examines their evolution from a different perspective. Instead of approaching the doctrines primarily as SC creations and following their evolution “horizontally,” from one SC precedent to another as most legal scholars do, I focus on the origins of the fundamental principles by investigating the sources of the key ideas advanced by the authoring justices. This line of inquiry is particularly relevant, because a major point of contention in the writings of Israeli legal scholars has been the degree to which these justices were influenced by state interests and Zionist ideology, an arguably futile debate considering the absence of documentary evidence regarding the justices’ inner thoughts and motivations at the time.

However, by expanding exploration “vertically” beyond legal scholarship’s traditional focus on upper-court rulings and incorporating the lower courts into our analysis, we gain a relatively clear understanding of where justices got their ideas. Although this vertical approach makes intuitive sense, I was nonetheless surprised by the consistency of my findings. In each doctrine examined for this article—the admissibility of aerial photographs, the “50-percent rule,” and the tripartite changes regarding Mewat land—lower-court rulings were by far the most important source of the arguments advanced by the authoring justices. And these rulings, in turn, most often replicated the arguments of Israeli state attorneys. In this way, doctrines evolved not only horizontally from one SC ruling to another, but also (and, in most cases, primarily) vertically, between the lower court (in this case, the Haifa District Court) and the SC. Moreover, while focusing on the horizontal evolution of these doctrines based on SC rulings alone may leave the sources of justices’ ideas shrouded and unclear, exploring their vertical evolution based on lower-court and SC archives reveals a clear flow of doctrinal components from initial litigant arguments before the lower courts to the institutionalization of binding judicial doctrine.

A vertical approach to the evolution of judicial doctrine has far-reaching implications for our understanding of Israeli executive-branch influence on the land-related judicial doctrines of the late 1950s and early 1960s. In contrast to previous scholarship, which concentrates on the degree to which doctrines favored state claims, factors motivating justices’ rulings, and SC interventions, this approach focuses on the role of litigant argument and lower-court rulings in doctrine evolution. My main finding is that, in these disputes, SC justices did not simply rule in favor of the state but rather consistently adopted the legal arguments advanced by the state, transforming them into SC doctrine and the law of the land.

The State of Israel v. the Palestinians of the Galilee: “Playing for Rules” during the Special Land Settlement Operation

By the mid-1950s, the overwhelmingly Arab central Galilee had become the focal point of the Jewish-Arab struggle over land and the first regional focus of Israeli state land-claiming. There were two reasons for this. First, the area was almost all Palestinian in population and land ownership and had not been allocated to the proposed Jewish state by the 1947 UN partition plan. Although the Galilee (like most Arab areas of the country) remained under military rule between 1948 and 1966, many Israeli officials still regarded the demographic and sociospatial conditions there as a threat to Israeli security and sovereignty. It was in this context that efforts to “Judaize the Galilee” through Jewish settlement began in the early 1950s. Second, the region had not yet undergone settlement of title, or “land settlement”—a comprehensive system of survey, mapping, private and state land-claiming, and land registration initiated by the Mandate government and adopted by Israel in 1948. According to the terms of the system, this meant that the state’s recognition of ownership rights in the region had not yet been finalized.

From the outset, securing title of state-owned land to ensure sufficient territory for Judaization of the Galilee was a major Israeli concern. To this end, government agencies embarked on a systematic campaign of state land-claiming in the region. The land claimed by the state in the Galilee fell into two general categories: 1) privately owned Palestinian land expropriated en masse in the wake of the 1948 war, claimed by the Custodian of Absentee Property (CAP) and the Development Authority; and 2) “unassigned state land,” a term used by state authorities to refer to various types of land to which bare title was held by the state and to which individuals were unable to establish private rights to the satisfaction of the authorities. Israeli officials were troubled by the incomplete nature of the Galilee land registries and their belief that, since 1948, Galilee Arabs had “seized” large areas of state land. In 1954, these officials began calling on the government to accelerate Galilee land settlement to clarify the situation.

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GEREMY FORMAN teaches and researches historical, legal, and geographical dimensions of the Israeli land regime at Tel Aviv University.