Adalah advises Israel Land Reform Committee on non-discrimination

Adalah Submits Position Paper to Committee Charged with Recommending Reforms in the Israel Lands Administration

On 25 August 2004, Adalah submitted an initial position paper to the Gadish Committee, appointed by the chairman of the Council of the Israel Lands Administration (ILA) to recommend reforms in the ILA. In the position paper, Adalah focused on the aims of the ILA, as well as the plan to separate the ILA and the Jewish National Fund (JNF).

The Aims of the ILA
The mandate of the Gadish Committee states that the committee was instructed to “define the main operational aims of the ILA with regards to the ILA's structure and modes of operation." On the subject of these aims, Adalah attorney Suhad Bishara and Adalah's regional planner Hana Hamdan address the ILA's policies towards the allocation of lands for development in relation to Arab citizens of Israel.

In the position paper, Adalah argues that, as a public authority established under the law, the ILA is obliged to operate in a manner consistent with the principles of public administration; above all the principles of equality, just land distribution and fairness. Adalah stressed that these principles are of the utmost importance, “in light of the great significance of the resource of lands administered by the ILA, which is considered the most fundamental and essential resource for socio-economic development.” Adalah contends that, in spite of its obligations and the significance of land resources, the ILA fails to adhere to these principles. On the contrary, the ILA has pursued inequitable and discriminatory land allocation and development policies towards the Arab minority in Israel. Land has been distributed along sectarian lines for the benefit of the Jewish population, at a time when large tracts of land have been expropriated from the Arab population. For example:

 1. ILA Decision 952 (21/01/2003) grants a 90% discount in the leasing of land to discharged soldiers in towns in the Galilee and the Naqab, classified as 'National Priority Areas'. Since Arab citizens are exempt from and do not serve in the army or perform national service, they are denied the extremely valuable benefit of being able to purchase leasing rights to state-controlled land for a fraction of its market value.

 2. ILA Decision 897 (22/01/2001) awards large discounts in the leasing of land exclusively in Jewish towns in the Galilee and northern Israel.

 3. The ILA, together with the Ramat Ha'Negev Regional Council, initiated the “Wine Path” plan, for the establishment of individual settlements in the Naqab for Jewish residents on tens of thousands of dunams of land, with the aim of preventing the use and development of land by the Arab community in the region.

 4. The cancellation of bids for land published by the ILA, following interest from Arab families. Instances of such cancellations occurred in Nazareth Illit in October 2001, and in July 2004 in Carmiel. In both cases, the bids were republished with the addition of conditions de facto eliminating non-Jewish bidders.

 5. In general terms, the ILA allocates land to Jewish communities throughout Israel with total disregard for the interests of the Arab population, and its lack of available land resources.

Adalah contends that the ILA's policies contravene basic principles governing land resource distribution stipulated by the Supreme Court of Israel, of which the most fundamental is just distribution. In light of the above examples, Adalah argues that any re-conceptualization of the ILA's aims must incorporate these principles. Furthermore, in making its recommendations, the Gadish Committee should stress the ILA's obligation to adhere to the principles of equality, just distribution and fairness, as well as appropriate administrative procedures.

The Proposed Separation of the ILA and the JNF 
Adalah also discussed the question of the proposed separation of JNF-controlled lands from the ILA. The committee has received recommendations for an exchange of lands via this process of separation between the state and the JNF, according to which the JNF would concede lands in towns in the central region of Israel to the state in exchange for lands in the 'National Priority Areas'.

Adalah stated that the combination of the JNF's influence over land policy in Israel, its ability to acquire 'Israel's lands,' the classification of the JNF's land as 'Israel's lands,' in addition to its control over 13% of the most important resource in Israel, mean that the JNF cannot be considered a private entity, beyond the obligation to operate within the principles of public administration. Adalah argues that, even if not a purely public entity, the JNF must be regarded as a “dual entity,” obliged to abide by the principles of public administration, respecting and adhering to the fundamental principles of equality, just distribution and fairness.

The ILA and JNF claim, conversely, that the principles of public administration do not apply to the JNF, and that the fund therefore has the right to exclusively serve the Jewish public, contrary to the above principles. However, Adalah stressed that, even if the ILA and JNF's position is legally acceptable, the JNF is not thereby authorized to act without constraints in this case. Of the 2.5 million dunams of JNF-controlled land, almost 1 million dunams were transferred to the JNF by the Israeli authorities in the late 1940s. Additional land was transferred to the JNF over the years. Hence, despite the official transfer of these lands to the JNF, the vast scale of land involved in the proposed transfer, as well as the JNF's extensive powers over large swathes of land in Israel and its involvement in determining land policy, mean that these lands remain subject to the principles of equality, just distribution and fairness.

Regarding the plan for land transfers between the ILA and the JNF, Adalah contends that the plan is unconstitutional, as it represents an attempt to circumvent the principles of equality, just distribution and fairness with respect to affected lands in the north of Israel and the Naqab. Moreover, if implemented, the ramifications of this plan would be particularly grave, given that the Arab population in the north of Israel constitutes over half the region's population (51.6%), 13.6% in the south of Israel, and almost 25% in the northern Naqab.

Adalah further argued that a comparison between the jurisdiction of Arab and Jewish regional municipalities in these areas reveals a picture of severe discrimination against Arab communities, which leads to acute housing shortages and precludes virtually all development. For instance, Arab regional municipalities in the Galilee have jurisdiction over just 16.1% of the land, while the Arab population in the region accounts for 72% of the total population. In comparison, 83.3% of the lands in the region fall under the jurisdiction of Jewish regional municipalities, although the Jewish population compromises only 28% of the total population. Similarly, Arab regional municipalities in the Naqab have jurisdiction over a mere 1.9% of the land, while the Arab population in the region comprises 25.2% of the total population. The discrimination exposed by these statistics is intensified by the fact that the Arab population is relatively younger than the Jewish population in Israel: 50.6% of the Arab population in Israel is between the ages of 0-19, compared with only 33.8% of the Jewish population; in the south, the Arab population in the same age group accounts for 48.4% of the total, and in the north 66.3%. The corresponding numbers for the Jewish population are 34.8% and 35% respectively. These figures are a clear indication of existing discrimination, as well as the growing land resource needs of the Arab community.

Adalah states that these data, alongside the large-scale confiscation of land from the Arab population, lead to the conclusion that the imposition of any restrictions on the Arab population's access to land through its transfer to the JNF would in turn aggravate the already difficult conditions faced by the Arab minority in Israel, as illustrated by the above data. Such restrictions would further ingrain the discrimination from which the Arab population has suffered since the establishment of the State of Israel in 1948, and frustrate the future development of the Arab communities in the affected areas. Since the objective of this plan violates the principle of equality, it stands in breach of the state's obligation to provide for the sustainable development of all its citizens, and to safeguard their rights to life and dignity.

 position paper (H)

1 Ehud Olmert, Minister of Industry and Trade.
2 The ILA administers what are defined under Israeli law as "Israel's lands," which include land belonging to the JNF.
3 The JNF owns approximately 13% of the land in Israel. The JNF's charter specifies that the fund exists to serve the exclusive benefit of Israel's Jewish population. 
4 Which de facto means in the Galilee and the Naqab.
5 Half of the members of the ILA Council, which determines land policy in Israel, must be nominated by the JNF.
6 The JNF claims that the money they paid to the government represented the free-market price of this land.
7 In the Naqab, there are 14 recognized Arab communities (seven of which were recently recognized), in addition to some 40 communities which remain unrecognized.