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Since 1948, Israeli laws have facilitated systematic confiscation of Palestinian-Arab-owned land, transferring possession to the state or Zionist institutions, such as the Jewish Agency, the World Zionist Organization and the JNF, for the exclusive use of those holding “Jewish nationality,” whether they are citizens of Israel or not. Under Israeli law, this land cannot be sold to individuals, Since 1960, the ILA has allocated 49–98-year leasing rights only to “Jewish nationals.” Israel's Basic Law: Israel Lands (1960) categorizes lands controlled by the state the Development Authority and the JNF as "Israel Lands."2 Established in 1960, the ILA is the governmental agency that manages and controls 19.5 million dunams (about 78 million acres), or over 93% of land in Israel.3
As of 2003 the JNF claimed ownership over 13% of all “Israel Lands,” or a total of 2,555,000 dunams.4 To place this figure in historical context, the UN Palestine Conciliation Commission reported that, as of January 1948, the JNF held only about 600,000 dunams.5 The JNF claims that it bought 1.25 million dunams of land from the state of Israel immediately its establishment, using donations from Jews around the world.6 The JNF actually acquired from the state nearly 2,000,000 dunams, or approximately 78% of its currently holdings, in 1949 and 1953.7
The rightful owners of most of this land are Palestinians who either became refugees and found themselves outside of Israeli-held territory after the 1947–49 war, or those displaced from their land but remained within Israel and became citizens of the new state.8 The latter group are known in Israeli terminology as “present absentees” (as “absentees,” thereby legally dispossessed).
The JNF’s Special Status
The JNF holds official status under Israeli laws, and the state concluded a covenant with the JNF in 1961 declaring that all JNF-owned lands would be administered by the ILA, subject to the Memorandum and Articles of Association of the JNF (Keren Kayemeth Le-Israel, in Hebrew). The Memorandum clarified JNF’s objectives: to acquire property “in any area within the jurisdiction of the Government of Israel or any part thereof, for the purpose of settling Jews on such lands and properties." The objectives of the Memorandum are to prohibit land allocation to “non-Jews.” This prohibition is discriminatory in its nature and effect, and is a key factor in the ongoing conflict.
Israeli law confers upon JNF the privileges of a public authority. Article 4a of the ILA Law (1960) provides that the JNF will hold 50% of the seats on the ILA’s policy-making Council. This provision grants JNF a substantial role in formulating Israel’s land policies over 93% of the territory. While “Israel Lands” may not be sold, the Israel Lands Law (1960) allows their transfer exceptionally between state and JNF. Additionally, the JNF enjoys the same status as a Local Authority for the purposes of confiscating land, according to Article 6 of the JNF Law (1953) and Article 22 of the Lands Ordinance (Acquisition for Public Purposes) (1943).
The Committee on Economic, Social and Cultural Rights has recognized that the JNF executes normal governmental functions under its discriminatory charter and nature.9 Meanwhile, that institution operates in the jurisdiction of many Member States, registered as a tax-exempt charity.
Challenging Institutionalized Discrimination
On 13 October 2004, Adalah petitioned the Supreme Court of Israel against the ILA, the JNF and the Minister of Finance (MOF), demanding the cancellation of a MOG regulation that effectively permits the ILA’s allocation of JNF lands through bids open only to “Jewish nationals.”10 Adalah also requested a temporary injunction to freeze all open and new ILA tenders for JNF lands, and to ban the lease of these lands, pending a judicial decision.
In a 15 August 2004 letter to Adalah, the ILA acknowledged that JNF Land tenders are only open to individuals enjoying the privileged status of “Jewish nationality.” The ILA cited that policy as bound by the Covenant between the State of Israel and the JNF. In December 2004, the JNF’s written response to the petition, Chairman of the Board Israel Yeheil Leket stated that:
The JNF is not the trustee of the general public in Israel. Its loyalty is given to the Jewish people in the Diaspora and in the state of Israel...The JNF, in relation to being an owner of land, is not a public body that works for the benefit of all citizens of the state. The loyalty of the JNF is given to the Jewish people and only to them is the JNF obligated. The JNF, as the owner of the JNF land, does not have a duty to practice equality towards all citizens of the state (pp. 34, 38),
The JNF commissioned and published a survey in January 2005, finding that "more than 70% of the Jewish public in Israel is opposed to allocating JNF land to non-Jews.” Reportedly, Attorney General Menachem Mazuz decided on 26 January 2005 that the ILA cannot discriminate against Palestinian citizens of Israel in allocating lands it manages, even those lands belonging to the JNF. However, AG Mazuz decided that, whenever a “non-Jewish” citizen of Israel wins a land tender for a plot of JNF-owned land, the ILA will compensate the JNF with an equal amount of land.11
As a public agency established under law, the ILA is not permitted to adopt discriminatory positions that violate human rights, or to be a subcontractor for discrimination on the basis of “nationality” a group of citizens. All international human rights treaties protect these principles as rights, as in Articles 2, 3 and 26 of the ICCPR and Article 2(2) of the ICESCR affirm. Despite ratifying these treaties, Israel’s policies denying Palestinian citizens access to public resources. Constitutes institutionalized discrimination and, thus, violate Articles 1, 2, 3 and 5 of ICERD. As the Committee on Economic, Social and Cultural Rights (CESCR) concluded, in its observations on Israel,
with grave concern that the Status Law of 1952 authorizes the World Zionist Organization/Jewish Agency and its subsidiaries, including the Jewish National Fund, to control most of the land in Israel, since these institutions are chartered to benefit Jews exclusively. Despite the fact that the institutions are chartered under private law, the State of Israel nevertheless has a decisive influence on their policies and thus remains responsible for their activities. A State party cannot divest itself of its obligations under the Covenant by privatizing governmental functions. The Committee takes the view that large-scale and systematic confiscation of Palestinian land and property by the State and the transfer of that property to these agencies constitute an institutionalized form of discrimination because these agencies by definition would deny the use of these properties to non-Jews. Thus, these practices constitute a breach of Israel's obligations under the Covenant [E/C.12/1/Add.27, 4 December 1998, para. 11].
Harmful and unlawful are the ILA's policy of discrimination and the AG’s proposed “land exchange” between the ILA and the JNF, since this exchange would perpetuate discrimination against Palestinian citizens. A state cannot transfer public goods and services to any entity that does not respect the fundamental human rights of citizens and public international law.
The JNF and the United Nations
In July 2004, the JNF acquired NGO status with the UN Department of Public Information.12 As an organization that publicly acknowledges that it “does not have a duty to practice equality towards all citizens of the state,” the JNF operates contrary to the principles of the UN Charter, which emphasizes respect for human rights and equality, a prerequisite for regional peace and security.
In response to the various mechanisms of institutionalized discrimination, the Commission should investigate the state of Israel’s discriminatory land allocation policies with a view to :
§ Reaffirm the principles of nondiscrimination on grounds of nationality;
§ Urge the Israeli government to cease its discriminatory land allocation practices using institutions such as the JNF, and to apply covenanted principles of equality, just distribution and fairness;
§ Inform ECOSOC of the discriminatory and parastatal nature of the JNF, particularly in view of its contradictory claims to nongovernmental status and compatibility with the UN Charter.