Adalah — along with the National Committee of Arab Local Authorities, the Arab Center for Alternative Planning, the Association for Civil Rights in Israel, and Bimkom–Planners for Human Rights — filed a petition before Israel’s Supreme Court on 18 August 2016 challenging the role of the Jewish National Fund (JNF) in governing land use in Israel. This important case exposes some of the core issues in the ongoing relationship between the Nakba and the law.

 

The JNF: Private Discrimination on Public Lands

The JNF is a worldwide network of Zionist charities dedicated to acquiring and settling land on behalf of the Jewish people. The JNF’s Israeli branch is a parastatal organization that enjoys special status under Israeli law in the management of land.

Over 93% of the territory inside the Green Line is controlled by the Israel Land Authority (ILA), a governmental body. The ILA controls both land owned by the state as well as land owned by the JNF. The JNF holds 6 out of 14 seats (43%) on the governing body of the ILA, even though it only owns 13% of the land controlled by the ILA. In other words, the JNF ceded management of its own land to the state in exchange for a major share in decision-making power over all state-controlled lands. The petition recently filed by Adalah and its partners challenges the constitutionality of this arrangement.

The JNF’s role on the ILA Council affords it enormous influence over the allocation and use of lands. Israel has one of the highest proportions of state control of land in the world; most of that land is held in long-term leases. A considerable portion of state lands were expropriated from Palestinians — refugees of the 1948 Nakba as well as Palestinians who were displaced from their homes but nevertheless became citizens of Israel.

Because the JNF is technically a private association, its discriminatory mission cannot be directly challenged under Israeli law. But its role on the ILA Council — a state body — can be. The petitioners argue that as an organization explicitly dedicated to holding land for the Jewish people only, the JNF’s role on the ILA Council violates the equality and dignity of Israel’s Arab citizens. The petitioners point to a fundamental conflict between the JNF’s mission and the state’s duty not to discriminate against its non-Jewish citizens. An English-language summary of the petition with a link to the Hebrew original is available here.

The lawsuit pushes at the tension between Israel’s ideological commitment to being the state of the Jewish people and its claim of affording equality to all of its citizens. Notably, the constitutional status of the right of equality in Israeli law is uncertain at best. The country’s Basic Law: Human Dignity and Liberty (1992) makes no mention of this principle and the Israeli Supreme Court has been hesitant to deploy it beyond the landmark 2000 Qaadan decision or the 2006 ruling against the discriminatory allocation of “priority” status to Arab communities.

In order to answer the substantive questions posed by the case, the Court will have to rule on the legitimacy of an openly discriminatory body such as the JNF playing a major role in a crucial area of state policy. If the Court sides with the petitioners, it will disrupt a key element of the Zionist regime; if it legitimizes the JNF’s role, it will expose Israel to further international criticism. For these reasons, it is reasonable to expect the Court to delay a decision and to seek a way to dismiss the petition without ruling on the merits.

The state and the JNF have long worked together to uphold discriminatory policies beneath a veneer of equality. In 2004, Adalah and other organizations filed a petition challenging the JNF’s discriminatory refusal to entertain any Arab bids for its properties. The Israeli Supreme Court sat on the case for years. Eventually, the state and the JNF concluded an agreement: Arabs would be permitted to make bids on JNF properties, but the state would “compensate” the JNF for any lands leased to Arabs with other state lands on a 1:1 basis. The state and the JNF essentially agreed to tolerate non-discrimination at the micro-level as long as structural discrimination could remain intact. Although Adalah and other human rights groups criticized the discriminatory nature of this agreement, the petition was effectively rendered moot. This outcome satisfied the major regime players — the government could claim it was not discriminating, the JNF could continue to keep land for Jews only, and the judiciary wasn’t forced to make a substantive ruling either way.

 

Privatizing the Nakba?

In order to advance its arguments, the new petition intervenes in arguments over public versus private ownership of land. This debate has largely been one conducted between Zionists, but with important consequences for Palestinians.

In the beginning, the Zionist project was dedicated to acquiring land in the name of the Jewish people worldwide, and to keeping land in Jewish hands. This principle was inscribed in Basic Law: Israel Lands (1960). In 1960, the JNF transferred direct control of its property — both lands it purchased before 1948 and Palestinian refugees’ lands granted to it by the state — to the state in exchange for 50% of the seats on the governing body of the Israel Land Administration, the state body that managed all state lands at the time.

Capitalists within the Zionist movement have long criticized public ownership of land in Israel, while the JNF has continued to argue that land should be controlled by the state (with the JNF at the table, of course) in furtherance of Zionist goals. Land privatization is a significant development in Israel, arguably marking a new stage in the consolidation of the Nakba. In theory, privatization would remove the legal requirement that land must remain in the hands of “the Jewish people” or the state and could therefore even allow Palestinian citizens of Israel to acquire lands. In practice, however, the main effect of privatization is to exacerbate economic inequality and to render even more remote any possibility for restitution or compensation for lands already seized from Palestinians.

Israel passed a series of land reforms in 2009 and 2010 to pave the way for the privatization of some state lands, mostly in urban areas. As part of these reforms, the Israel Land Administration was reconstituted as the Israel Land Authority and the JNF’s share of seats on the governing board was reduced from 50% to 43%. This position paper from Adalah analyzes many of the problems with this legislation.

The most important unresolved issue in the land reforms was the tension between privatization and the JNF’s ideological mission. The state and the JNF finally concluded an agreement in November 2015 confirming that in exchange for privatizing some JNF lands in the center of the country, the state would give the JNF other state lands from the Galilee and Naqab, the last two major areas with land reserves and where a high percentage of Palestinian citizens of the state reside. Moreover, the state agreed that those lands would be managed in accordance with the JNF’s principles, i.e. they would be managed for the benefit of Jews only. The relationship between collective and private ownership of land in Israel, then, is not an “either-or,” but rather a sequence: collective ownership first to consolidate the gains of the Nakba by allocating it to Jews, and then once the passage of time makes the possibility of Palestinian return increasingly unthinkable, privatization can go ahead to further entrench the Nakba and cover its traces.

In this context of struggles over privatization, the recent petition by Adalah and its partners relies in significant part on a landmark 2009 case, Academic Center of Law and Business v. Minister of Finance. In that case, the Israeli Supreme Court banned the operation of private prisons in Israel based in part on the theory to that to transfer important state functions to private hands potentially threatens human dignity.

The JNF’s defenders will likely argue that they should not be treated like the private prisons discussed in the Academic Center case, because they are not profit-seeking. But this shows how the JNF wants to have it both ways on the question of private ownership of land. On the one hand, the JNF’s status as a private actor is what allows it to engage in a discriminatory mission. Yet it is against allowing other private actors to own land, lest they somehow undermine Zionist development goals or, worse, sell land to non-Jews.

 

The JNF as a Colonial Entity

In its various chapters around the world, the JNF operates as a private charity, with attendant freedoms and benefits, such as tax-exempt status in the U.S. Inside Israel, it is a private entity with special powers under public law. But everywhere it is dedicated to the same purpose: colonizing land for the benefit of all Jews worldwide.

In classical cases of colonialism, a state or private company would mobilize resources and people to settle foreign lands. The JNF is somewhat different: operating in a world where formal colonialism is frowned on, it works through the legal form of a charity or non-profit organization to gather and move funds from western countries to Israel/Palestine. And instead of being sent by a distant metropolitan power, the JNF works on behalf of a settler state established on the site of colonization, thereby making its work seem more legitimate and grounded in local processes.

Israel’s legal system provides few tools for challenging these colonial practices, with the principle of equality being one of the few available. But the discrimination framework comes with significant limitations. Anti-discrimination law presents as a goal the achievement of equality between citizens in a single state, or between different groups of people inside one country. But the JNF is an extraterritorial organization, with a mission to act on behalf of the Jewish people worldwide while raising funds and operating in dozens of countries. Crucially, Israel’s land privatization laws forbid selling land to foreigners unless they are Jews — even non-Israeli Jews who have not exercised their automatic rights to obtain Israeli citizenship. A plausible solution to the Nakba and the predicament of colonialism in Israel/Palestine cannot be equality between indigenous Palestinians and non-Israeli Jews who have no direct connection to the country.

Moreover, framing the land issue in terms of equality between people currently within the state also erases the rights of a vast majority of the landowners — Palestinian refugees in diaspora. In order to be useful here, any legal norm of equality must grapple with the distinct cross-border privileges and harms that colonialism enables.