Beware Ottoman land law!
According to Arab claimants, the area of Sussiya, which includes an ancient Jewish village that was built about 1,600 years ago, and perhaps as early as the late Second Temple period, is “private Palestinian land” owned by Arabs who started illegally building in the area about two decades ago and have been squatting there ever since, assisted by EU and international organizations.
Their title, they claim, is based on an 1881 Ottoman Empire Land grant document. Unlike what has been reported, Israel has not affirmed Arab ownership of land near Sussiya based on the Ottoman era land deed. Such a document has never been submitted to a court for examination and verification – and Israel’s well- respected High Court has denied these Arab squatters the right to build on the land in question. But, even assuming that the Ottoman Empire duly gave the land away, it is not relevant to the current controversy.
For Arabs to claim Sussiya as their property based on such a land deed from 1881 is as absurd as Dutch citizens claiming “New Amsterdam” ( Manhattan) or British citizens claiming New York. Their encampment near Sussiya is illegal and their claims to own land on this basis are preposterous, a fabrication and self- defeating, as we shall see.
According to the Ottoman Land Code ( OLC) 1858 ( Article 68), if a person to whom the land was given ( tassaruf – the right to usufruct of land) was absent ( mahlul) for three years and did not use or cultivate the land, or pay fees and taxes, the land reverts to the governing authority. Under the OLC, the land could be passed to legal heirs within five years after the grantee’s death, however only with the approval of the governing authority and only as long as taxes were paid. If not claimed or taxes not paid, the property reverts to the authority.
As such, according to the Ottoman Land Code, for the grantee to continue to hold some sort of property rights, the governing authority had to be paid taxes and tithes. In other words, a kushan ( Ottoman land deed) is not enough; the land had to be used and taxes and fees had to be paid. And there are many other restrictions that applied, depending on the type of land and its various categories, which are delineated in the Land Code ( Article 3).
If a person cultivated an area for 10 consecutive years, he could apply for a title deed ( OLC Article 78). But, if the land were abandoned ( mahlul), at any time, even though he had cultivated it for a few years, he would lose his claim to ownership and the grant. Again, even if he could apply and didn’t, or didn’t pay the taxes or the tithes, the land would revert to the governing authority.
It is clear from documents, historical and more recent observations, maps ( 1890- 1945) and aerial photographs that the land claimed by these Arab squatters at Sussiya has not been continuously cultivated, taxes have not been paid and inheritance has not been applied for. Therefore their claims of ownership based on an Ottoman Empire land grant from 1881 are baseless.
Moreover, the Arab claimants have no or a very limited connection to the alleged original grantee of the land. Even if some are distantly related to the man who was given permission by the Ottomans to use the land, the validity of that grant expired more than a century ago.
Not to mention the fact that even if the claimants had done everything the Ottoman Land Code expected of them to legally claim such a grant, this still doesn’t give them building rights for a village that never existed ( OLC Article 31). That’s another whole section of the code, and obviously not covered by the deed in question.
During the British Mandate and the Jordanian occupation, huge allocations of land were granted to villages and tribes, most of which were never used. Regardless of whether the land was used and taxes were paid, specified as necessary provisos by Ottoman Law, the Jordanian government improperly registered these land grants as privately owned, permanently. These registrations are sometimes mistakenly recognized by the legal authority of the State of Israel in Judea and Samaria, the civil administration, to Israel’s detriment. In the case of the encampment near Sussiya, however, the Jordanians also didn’t register a title deed.
This confusion and factual misrepresentation perpetrated by NGOs such as Rabbis for Human Rights, B’Tselem, Peace Now, Bimkom and Yesh Din, aided by ignorant and misled foreign governments, is used to support and encourage illegal Arab land grabs and the destruction of Jewish communities and properties.
Can you imagine what the relevant branch of the US government would do if a large group of residents were to illegally set up camp in the middle of a wheat field in Kansas and build homes supported by the European Union.
Without any justification, accusing the State of Israel of forced displacement and taking “private Palestinian land” has become a favorite canard of the media and anti- Israel foreign organizations. Openly distorting the facts about Sussiya is simply used as a club to bludgeon Israel and delegitimize its independent judicial system. Any fair- minded person should be wary of the goals of this bogus campaign and distance himself from these activities.
The author is a director of Regavim, a research- based legal advocacy organization dedicated to ensuring responsible, legal and accountable use of Israel’s national land. For more information, visit www. regavim. org.