From Taxation to Dispossession: Land Governance and the Colonization of Palestine

Authors

  • Author

  • Munir Fakher Eldin

Keywords:

Land Governance, Israeli Occupation, Ottoman Law, British Mandate, Spatial Planning

Abstract

This study examines the history of land governance in Palestine from the late Ottoman era to the Israeli occupation that began in 1948, focusing on the structural transformations that shaped land tenure and control. It explores rent, ownership, and spatial planning as interrelated spheres for understanding the conflict’s dynamics. The study addresses how Ottoman law was utilized to regulate land ownership and how the British Mandate introduced significant reinterpretations of ownership that served broader colonial objectives. It also analyses the tools employed by the Israeli occupation to dispossess Palestinians, including legal mechanisms, expropriation, and spatial planning, while highlighting the historical, social, and political dimensions of the fight for land.

References

  1. Tapu was a permanent lease of state-owned arable land to a peasant family in the Ottoman Empire. The term was also used to refer to the title deed that certified tapu rights.
  2. See, for example, “‘ al-Kūshān al-ʿUthmānī’ … Qārib Najāt al-Arḍ al-Filasṭīniyya min Amwāj al-Iḥtilāl ,” Reports , Aljazeera Documentary, 2/12/2023, accessed on 5/11/2024, at: https://acr.ps/1L9zQTZ
  3. For general definitions of these groups, see Articles 1 to 4 of the Land Code of 1858 in: Aṣl wa-Tarjamat Qānūn wa-Niẓāmnāmat al-Arādī , Nicola Naqqash (trans.) (Beirut: Matbaʿat al-Abaa al-Yasuʿiyyin, 1873).
  4. I am referring here to perspectives proposed by Roger Owen and Huri Islamoğlu. See: Roger Owen (ed.), New Perspectives on Property and Land in the Middle East (Cambridge, MA: Center for Middle Eastern Studies of Harvard University, 2000), p. xi; Huri Islamoğlu, “The Land Code as a Contested Domain: A Reevaluation of the Ottoman Land Code of 1858,” in: Owen (ed.), pp. 3-60.
  5. E. Attila Aytekin, “Agrarian Relations, Property and Law: An Analysis of the Land Code of 1858 in the Ottoman Empire,” Middle Eastern Studies , vol. 45, no. 6 (2009), pp. 935-951.
  6. al-Farāgh is a term used in the Ottoman Land Code, which refers to the act of transferring tapu rights of disposal from one person to another. This process is not called a sale, because the latter assumes ownership, a condition that is not met in the strict legal sense in the right to dispose of miri land. It is also distinguishable from al-intiqāl, which refers to the inheritance of tapu rights by relatives as defined in the Code (which does not follow the Shariʿa inheritance law). al-Farāgh bil-Wafā refers to the act of transferring tapu rights in lieu of debt repayment.
  7. See Articles 114 to 117 of the Land Code of 1858 in: Aṣl wa-Tarjamat Qānūn wa-Niẓāmnāmat al-Arādī.
  8. Munir Fakher Eldin, “Confronting a Colonial Rule of Property: The al-Sakhina Case in Mandate Palestine,” Arab Studies Journal , vol. xvii, no. 1 (2019), pp. 12-33.
  9. An Armenian Ottoman official, politician, and legal expert, Dr Halagian, was summoned by the British government to testify in a case concerning the Sultan’s heirs. Dr Halagian’s testimony is preserved in a 17-page document in which he states that the orders Abdul Hamid issued to the Imperial Tapu Authority (al-Daftar al-Khāqānī) to transfer his property to his offspring nullified a longstanding Ottoman custom whereby the Sultan’s property would be transferred to his successor. not to his offspring (p. 4 of the document). This document, titled, “Heirs of the Sultan Abdul Hamid Pleadings”, is housed in a file preserved in the Israeli State Archives under reference number 5100/8-מ. The file can be retrieved at https://search.archives.gov.il using the code “000uore”. However, since the beginning of the genocidal war on Gaza in October 2023, the Israeli State Archive website has been blocked to users in Arab countries.
  10. References to this body began to appear in the Ottomans’ official annal (Salname) in all of these vilayets in the late 1880s, confirming its governmental nature. In other words, the notion of sultanate property and tapu registration in the name of Abdul Hamid II did not denote purely private ownership. Rather, it was based on a conceptual conflation between the person of the Sultan and his position as a ruler endowed with broad powers of governance. See, for example, the Salname of the Syria Vilayet 1891/92.
  11. Naz Yücel, “On Ottoman, British, and Belgian Monarchs ’ Ownership of Private Property in the Late Nineteenth Century: A Comparison,” Comparative Studies of South Asia, Africa and the Middle East , vol. 43, no. 2 (1 August 2023), p. 212.
  12. The word medevera was a technical bureaucratic term used by the Ottomans to shift properties and revenues from the Sultan’s privy purse to the Ministry of Finance. It originated in two imperial edicts issued by Sultan Abdulhamid II and Murad V, 1908 and 1909.
  13. See: Naz Yücel, “Sustaining the Empire: Transformation of Property Regime in the Late Ottoman Empire, 1876–1913,” PhD Dissertation, George Washington University, 2023, Part III. In one of the peculiar turns in the history of these territories, Sultan Abdul Hamid’s heirs claimed the right to them as a legal inheritance and sued for this right in courts in Palestine and subsequent mandate states, with support from US and British financial corporations established for this purpose. In 1937, they won their case concerning the lands of the village of al-Muharraqa near Gaza City in the Jaffa Court, and hoped that this would set a precedent for future wins in other territories both in Palestine and beyond. However, a series of appeals led to the reversal of the decision, thus affirming the legitimacy of medevere measures as a legal and “sovereign act”. Palestinian newspapers covered this case with considerable concern and trepidation. See, for example, al-Difaʿ , 5/3/1927; Falastin , 15/4/1930; Miraat al-Sharq , 14/3/1934; Falastin , 22/3/1937, 19/5/1937, and 4/1/1946. For a useful study of the subject, see: Ruth Kark & Seth J. Frantzman, “‘One of the Most Spectacular Lawsuits Ever Launched’: Abdülhamid’s Heirs, His Lands and the Land Case in Palestine, 1908-1950,” New Perspectives on Turkey , no. 42 (2010), pp. 127-157.
  14. Many newspaper articles appeared in Palestine on this topic in the context of the Salam family’s decision to relinquish this concession and sell it to a Zionist settlement corporation in 1934. See, for example, Fata al-ʿArab (pseudonym), “Shaykh al-Ḥūla Yatanabba’ bi-l-Bayʿ Qabl ʿIshrīn Sana: Ḥawl Imtiyāz al-Ḥūla Ayḍan,” Jaridat al-Difaa , 27/12/1934.
  15. The Journal of Judicial Verdicts (Majallat al-Aḥkām al-ʿAdliyya) was a civil law code that had been formulated by a committee of scholars in 1869 CE based on the Hanafi school of Islamic jurisprudence.
  16. Wadiʿ al-Bustani, “Taqrīr al-Difāʿ ʿAn ʾḤuqūq Ahālī al-Ghūr fī Arāḍīhim (3),” al-Karmal , 14/9/1921.
  17. Dove Gavish, The Survey of Palestine under the British Mandate, 1920–1948 (London: Routledge Curzon and Palestine Exploration Fund, 2005), p. 180.
  18. See Article 125 of the Ottoman Land Code of 1858 in Aṣl wa-Tarjamat Qānūn wa-Niẓāmnāmat al-Arādī.
  19. See the 1921 Law on Mawat Lands in: Duaybis al-Murr, Aḥkām al-Arāḍī al-Muttabaʿa fī al-Bilād al-ʿArabiyya al-Munfaṣila ʿan al-Sulṭa al- ʿUthmāniyya (Jerusalem: Matbaʿat Bayt al-Quds, 1923), p. 150.
  20. See the articles in Chapter Four, particularly Articles 59, 60, and 77 of the Ottoman Land Code of 1858 in Aṣl wa-Tarjamat Qānūn wa- Niẓāmnāmat al-Arādī.
  21. See the 1921 Law on Mahlul Lands in: al-Murr, pp. 148-149.
  22. Justice Tute, “The Law of State Lands in Palestine,” Journal of Comparative Legislation and International Law , vol. 9, no. 4 (1927), pp. 173, 177-178.
  23. The mushāʿ system was applied on a broad scale in Ottoman Palestine and in the Mashreq generally. The system was based on a periodic redistribution of land based on an annual or bi-annual lottery among the families of a village, or among the members of a single family or clan. It helped to preserve social cohesion within the village and/or clan, particularly given the pressures being exerted by the emerging cash economy and the new registration systems being introduced by successive governments.
  24. The Mandate Government archive available to researchers contains numerous files relating to “land reclamation”, which scholars have treated as authoritative sources of information. However, we have yet to see critical analytical studies that discuss the structure of the discourse on this topic and reveal its numerous presuppositions and arguments. For more examples of the discussions of joint tenure lands, tithes, and the logic behind the change sought by the Mandate, see the Israeli State Archive file titled, “Land Settlement (General Points) and Sir Ernest Dowson’s Reports”, (No. 5285/3-מ), at https://search.archives.gov.il, using the code 000btvm, and the file titled, “E. Dowson Visits – Memoranda and Proposals for Settlement, Registration, and Taxation of Land”, at https://search.archives.gov.il, using the code 000bhkd.
  25. Scott Atran, “Hamula Organisation and Masha'a Tenure in Palestine,” Man , vol. 21, no. 2 (June 1986), pp. 271-295; Nadan Amos, The Palestinian Peasant Economy Under the Mandate: A Story of Colonial Bungling (Cambridge Mass: Distributed for the Center for Middle Eastern Studies of Harvard University by Harvard University Press, 2006).
  26. “Land Settlement (General Points) and Sir Ernest Dowson’s Reports;” “E Dowson Visits – Memoranda and Proposals for Settlement, Registration, and Taxation of Land.”
  27. For a classic study of British economic policy, see: Barbara Smith, The Roots of Separatism in Palestine: British Economic Policy, 1920- 1929 (Syracuse: Syracuse University Press, 1993); and for a critical reading of the British “development rhetoric” in Palestine, see: Zeina Ghandour, A Discourse on Domination in Mandate Palestine: Imperialism, Property, and Insurgency (London: Routledge, 2010).
  28. For an important micro-level study of land rights settlements and the ways in which Palestinians lost parts of their lands in some Arab villages as compared with the Zionist settlements, see: Aida Asim Essaid, Zionism and Land Tenure in Mandate Palestine (Abingdon Oxon: Routledge, 2014).
  29. This situation is reflected in a report submitted by Sir Ernest Dowson, a prominent planner of the Mandate authorities’ lands-rights settlement and tax policies in Palestine, on the progress that was being made in “land reforms” during the 1920s; see the Israeli State Archive, File 5285/3-מ: Ernest Dowson to High Commissioner, “Progress in Land Reforms, 1923-1930,” November 1930, in: “Land Settlement (General Points) and Sir Ernest Dowson’s Reports.”
  30. In this context, see the case of the village of al-Sakhina, which I discussed in a previous article: Fakher Eldin, “Confronting a Colonial Rule of Property,” pp. 12-33.
  31. See the report submitted by the Shaw Commission in 1930: Sir Walter Shaw (Chairman) et al., Report of the Commission on the Palestine Disturbances of August 1929. Presented by the Secretary of the Colonies to Parliament by Command of His Majesty, March 1930 (London: His Majesty's Stationary Office, 1930).
  32. Fakher Eldin , “Confronting a Colonial Rule of Property.”
  33. For a previous treatment of this topic, see: Munir Fakher Eldin, “al-Arḍ wa-Huqūq al-Milkiyya wa-l-Irjā’ al-Istiʿmārī: Bayn Waʿd Balfūr wa-l- Nakba,” Ostour , vol. 4, no 8 (July 2018), pp. 193-209.
  34. Mark LeVine, Overthrowing Geography: Jaffa, Tel Aviv, and the Struggle for Palestine, 1880-1948 (Berkeley: University of California Press, 2005), pp. 64-67.
  35. Moses Doukhan & Frederic Goadby, The Land Law of Palestine (Tel Aviv: Shoshany’s Printing, 1936), p. 36.
  36. Raja Shehadeh, Occupier's Law: Israel and the West Bank (Washington, DC: Institute for Palestine Studies, 1985).
  37. See: Malaka Abd al-Latif, “al-Istiyṭān al-Ṣahyūnī al-Dīnī fī al-Quds: Jamʿiyyat Ilʿād ka-Ḥālat Dirāsa,” Master Thesis, Birzeit University, 2024.
  38. For an in-depth study of the policy of dispossession and Judaization in its legal dimensions, see: Ahmad Amara, Alexandre Kedar & Oren Yiftachel, al-Arāḍī al-Mufragha: Jughrāfiyya Qānūniyya li-Ḥuqūq al-Badū fī al-Naqab (Ramallah: Madar – al-Markaz al-Filastini li-l-Dirasat al- Israiliyya, 2021).
  39. For a report by the Israeli human rights organization, B’Tselem, see: Nir Shalev, “Under the Guise of Legality: Israel's Declarations of State Land in the West Bank, B'Tselem,” February 2012, accessed on 20/2/2025, at: https://acr.ps/1L9zQFo. The Committee to Resist the Wall and Settlement, which keeps abreast of confiscation policies and land theft, periodically issues relevant reports and maps; see: https://acr.ps/1L9zQGQ
  40. See: Qusay al-Barghuthi, “Qānūn fī Khidmat al-Istiʿmār: Āliyāt al-Sayṭara al-Istiʿmāriyya al-Istīṭāniyya al-Isrāʾīliyya ʿalā al-Arāḍī al-Filasṭīniyya al-Muḥtalla - al-Diffa al-Gharbiyya (1967 ilā al-Ān) ka-Ḥāla Dirāsiyya,” Master Thesis, Birzeit University, 2021.
  41. For an important reference on this topic, see: Oren Yiftachel, Ethnocracy: Land and Identity Politics in Israel/Palestine (Pennsylvania: University of Pennsylvania Press, 2006).
  42. For an overall narrative of the history of Israeli spatial planning and its problems, see: Rasim Khamayisi, “al-Arḍ wa-l-Takhṭīṭ wa-l-ʿUmrān,” in: Munir Fakher Eldin et al (eds.), Dalīl Isrā’īl 2020 (Beirut: Ramallah: Muʾassasat al-Dirasat al-Filastiniya, 2021).
  43. For an overview of these reports, see: Munir Fakher Eldin, “al-Filasṭīniyūn fī Maṣāʾid al-Takhṭīṭ al-ʿUmrānī al-Isrā’īlī,” in: Jamil Hilal, Munir Fakher Eldin & Khalid Farraj (eds.), Murājaʿat al-Siyāsāt al-Isrā’iliyya Tijāh al-Qaḍiyya al-Filasṭīniyya (Beirut/Ramallah: Muʾassasat al-Dirasat al- Filastiniyya, 2017).
  44. Khamayisi, pp. 792-793.
  45. It must be noted that the Oslo Accords envisioned an interim period of five years during which final status negotiations would be concluded, which never happened, thus turning the interim period and its arrangements into a protracted fact on the ground.
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