"A First Step in a Difficult and Sensitive Road":

Preliminary Observations on Qaadan v. Katzir[1]

Dr. Alexandre (Sandy) Kedar*

I. Introduction

The State of Israel allocated land to the Jewish Agency in order to establish Katzir.[2] This so called "community settlement" was founded in 1982 in the Wadi Ara (Nahal Eirun) region. In 1995, the Qaadans, a Palestinian-Israeli family, attempted to acquire land in Katzir but failed to do so. Until the Supreme Court Qaadan v. Katzir decision, Arabs could not acquire land in any of the hundreds of settlements of this kind existing in Israel. A sophisticated discriminatory procedure, involving the State, the Jewish National Fund (JNF), the Israel Land Administration (ILA), the Jewish Agency, and Community Cooperatives guaranteed the ethno-national purity of these settlements. In October 1995, the Association of Civil Rights in Israel (ACRI) which represented the Qaadans, petitioned the Supreme Court. Chief Justice Aharon Barak confessed this to be one of the most difficult cases he ever encountered.[3] The Court made many attempts to convince the parties to find an out of court solution. Finally, after five years of failed attempts, a four to one majority ruled in favor of the Qaadans.[4] Chief Justice Barak, with Justices Zamir, Or and Heshin ruled that the State could not "allocate State land to the Jewish Agency for the establishment of the Katzir community settlement on the basis of discrimination between Jews and non Jews." (Par. 40).[5] Notwithstanding this seemingly clear decree, its operative part was lacking. It merely instructed the State to consider whether "on the basis of the equality principle," and taking into consideration factors "concerning the Jewish Agency and the settlers in the place … it could allow the petitioners … to establish a home in the confines of the Katzir community settlement."(Par. 40). The duality of this decree, proclaiming simultaneously the illegality of the discriminatory procedure, while apparently leaving the respondents with discretion whether to continue this illegal practice, symbolizes the essence of the case as being, in the words of the Court, "a first step in a difficult and sensitive road."

What is the significance of this road and where would it lead? I believe that there are at least three major perspectives to look at this question. While these perspectives are closely interrelated and often blurred, it is helpful to differentiate them. The first, is the difficult attempt to assess the impact of the decision upon Israeli society at large. How will it affect the Jewish, Zionist, and Democratic fabric of Israel? How will it influence its ethnic and political geography? The second, is the normative perspective that asks whether this decision is "justified" according to particular ethical criteria. The third, is an attempt to understand the "inner" meaning of Qaadan, that is its significance on the position, direction and role of the Court itself.

I have doubts as to current predictions on Qaadan's impact. Nevertheless I will address shortly this question in the conclusion. As to the normative perspective, I entertain strong views and beliefs on the case, and undoubtedly they influence my understanding of Qaadan. However, as a legal historian and a land regime scholar, I decided to focus in this paper primarily on the "inner" aspects of the case.

What then is the inner significance of Qaadan? I believe the case represents an essential shift in the Court's position. It signals a transition from a collective and "settling" into more individualist and "liberal" jurisprudence. Nevertheless, it is not a categorical transformation, but a big leap, from the "Jewish/Zionist" toward the "Democratic/equality" pole within the "Jewish-Democratic State" legal tenet. Moreover, Qaadan is a forward-looking precedent, which endeavors to draw a line: accepting past practices while initiating "a first step in a difficult and sensitive road." This road simultaneously embodies considerable promises and significant drawbacks. I will first look at the promises, and then at the drawbacks.

II. Promises on the Road

Interference with discriminatory land allocation

A major contribution of Qaadan is its interference with the allocation component of the Israeli land regime. To evaluate this contribution, it is important to understand the making of Israeli land regime. Beginning with the creation of Israel, the Court contributed to the constitution of Israeli land regime as a system geared to promote the Zionist project of Judaizing Israeli space and society.[6] As Oren Yiftachel has argued, similarly to other settler states, Israel initiated a comprehensive land and settlement policy.[7] This policy rested on new, powerful legislation that transferred land use, control and ownership into Jewish-Israeli hands. It is important to highlight here two major aspects: 1) Nationalization of public and Arab land. 2) Selective allocation of possessory land rights within the Jewish population. This distinction is important, since Qaadan addressed only the latter component.

At the end of the Israeli War of Independence, land officially owned by the State and Jewish individuals and organizations amounted to about 13.5% of the state’s territory.[8] To fulfil the Zionist project of Judaizing the land, Israel fashioned a national-collectivist land regime, rapidly and systematically expanding the land in its control.[9] By the 1960's approximately 93% of the Israeli territory came to the ownership and control of public and Jewish institutions aggregated together into Israel Lands [Mekarkei Israel].[10] The land nationalization took place through two major channels: 1) Nationalization of Palestinian land through the military, administrative and legal sovereign powers of Israel. The property of the Palestinian refugees, was fully transferred to public/Jewish ownership. In addition, Palestinians that remained and became Israeli citizens lost approximately 40-60% of the land they had possessed.[11] 2) Formal registration of all British Mandate's land in the State of Israel's name. Much of the million of dunums transferred to State-ownership during this process had hitherto been unregistered, but indeed legally belonged to the State. However, additional land was transferred from its Arab and Bedouin landholders as a result of crafty changes in land possession rules, mainly those concerning “Mewat” (‘dead’ land) and adverse possession.[12] Thus, Palestinian land served as a major source in the making of Israeli land regime.

The creation of the Israeli land regime involved also the allocation of possession (but not ownership) of much of the land now belonging to Israel Lands. The possession of this public land, (including Arab land transferred to it), was allocated to Jewish residents and settlements.[13] While rural land was allocated principally to Kibbutzim and Moshavim, Arab citizens of Israel remained excluded from this covert and complex allocation system.[14] A different classification of possessory rights in land into distinctive spatial/legal categories permitted the implementation of discriminatory rules, while simultaneously maintaining a neutral facade.

On the basis of this system, Israel developed during the late 1970’s a new settlement type, the Mitzpim (Lookouts). A major motivating force for the establishment of the Mitzpim has been the desire to Judaize the Galilee. This region was perceived as representing a "demographic threat", because of the high proportion of Arabs residing in the area and its proximity to the Northern border. The Mitzpim were established in strategic locations in order to promote Jewish presence in the area and prevent Arab "encroachment" over public land. Such settlements offered high quality "suburban" residence in subsidized prices geared to induce Jews to move to the Galilee.[15] The Mitzpim then expanded into additional Israeli regions and this new type of settlement became known as ‘Community Settlements'. Katzir was established in the same way, in an area densely populated by Arabs and bordering the 1967 "Green line".

As part of the process of establishing community settlements, crystallized a sophisticated system designed to exclude Arabs. Jews receive public land in these areas by a complex land allocation system. Initially, the whole settlement land is assigned through a system known as "the three-party lease". According to this arrangement, three parties sign the initial land allocation contract: A) ILA as the public landowners' agent;[16] B) The Jewish Agency and C) the Jewish settlement as a collective (its legal entity is a cooperative). In order to lease, (normally at a subsidized price and sometimes free of charge) an individual plot of land in such a settlement, a person must be accepted as a member of a cooperative that incorporates all residents of the community. The cooperative (often with participation of the Jewish Agency) has the power of 'selection' and practical veto power over acceptance. This delegation of state power, the major rationale of which is to preclude Arabs from access to land, serves simultaneously to preserve the mainly middle class character of these settlements. This has been the system at the core of the Qaadan decision.

While the Qaadan decision left untouched the issued of nationalization (which was not addressed in the petition), it dramatically interfered with the allocation part. The court ruled that "every person, whatever its nationality, is qualified to participate in the contest over the right to build his house in the Katzir community settlement." (Par. 33, 38.) It is likely that from Qaadan on, the power of the State and Jewish National organs such as the Jewish Agency and the JNF to allocate land to Jews only will be greatly curtailed.[17]

A limited interpretation of the "Jewish-Zionist State" tenet

Land issues stand at the core of Jewish-Zionist and Palestinian national identities as well as of Liberal and Zionist ideologies. While the Supreme Court contributed to the formation of the Israeli land regime, when it adjudicated land issues, it usually succeeded to avoid ideological language.[18] This can be explained in the legitimating function of the Court. It preferred to use a technical and professional style, which strengthened the impression that it just implemented the law.[19]

The Qaadan petition shoved straight into an unenthusiastic Court these ideological tensions.[20] While the Court disregarded the Palestinian narrative and recounted only the Jewish-Zionist version,[21] its self-identity and public perception as a "Liberal Court" prevented the Court from avoiding the clash of Liberal and Zionist visions.

Relying on traditional settling Zionist tenets, the Jewish Agency, one of the respondents, justified its position by arguing that its very purpose is to "settle Jews in the expanses of Israel generally, and especially in frontier areas as well as regions where the presence of Jews is sparse."(Par.10). Barak reiterated such rhetoric, referring to collective ownership of land, the desire to prevent such land from "unwanted elements" (a euphemism for Arabs), and to the importance of Aliya, agricultural settlements and security.[22]

Yet, notwithstanding the persistence of this rhetoric, it is important to highlight the emergence of a different voice, which promotes a softer version of Zionism and attempts to adjust it with a liberal individualist order. According to Qaadan, The Jewish-Zionist State is limited to two major areas: Aliya - the immigration of Jews to Israel,[23] and the national attributes of the nation.

Indeed, the return of the Jewish People to its homeland stems concurrently from the values of Israel as a Jewish and a Democratic State. … From these values… several conclusions are drawn: […] that Hebrew will be a principal language … and … that Jewish tradition [Moreshet Israel] will constitute a central component of [Israel's] religious and cultural tradition, and there are additional inferences that we do not need to address here. But from the values of Israel as a Jewish and Democratic State does not stem at all that the state will discriminate between its citizens. Jews and non-Jews in Israel are equal in rights and duties. (Par. 31, see also par. 19, 35, 36).

Equality

The explicit and unambiguous pronouncement that the Jewish attributes of Israel can not justify the discrimination of non-Jews, elevates equality into an overriding legal principle that trumps in most cases even the State's Jewishness. This pronouncement is undoubtedly a major innovation. In the past, similarly to other settlers' courts, the Israeli Court constructed legal categories that concealed the existence of discriminatory rules and practices promoting Jewish appropriation of land.[24] Furthermore, while there is no question that the Israeli Supreme Court shaped a civil rights jurisprudence in many areas, the Court did not apply this jurisprudence with the same force across the board.[25] For a while the Court practiced this jurisprudence mainly in issues closer the Jewish "enlightened public" consensus.[26] Particularly in the sensitive areas closest to the core of settling Zionism, such as security, land and settlements, the Court evaded the full equal implementation of its civil rights jurisprudence upon non-Jews.[27] Recently, the Court made several steps into dangerous waters. Thus, after almost a decade of dragging its feet, the Court finally outlawed torture. Likewise, it decided, again after more than a decade, to outlaw the utilization of Lebanese abducted by Israel as "trading cards" for the return of Israeli soldiers.[28]

Qaadan is part of this pattern. Especially after the so-called "Constitutional Revolution" of 1992, the Court began to develop the doctrine of "equality." However it did not apply in the same force to Palestinians. In Qaadan, the Court faced an agonizing dilemma. Under the carefully crafted petition of ACRI, it had to decide either to reject the petition and pay the heavy price of being perceived as insincere, or extend its jurisprudence to the taboo area of Arab land rights.[29] After attempting to evade the decision for almost five years, the Court resolved to build upon its previous equality jurisprudence and extend it to Palestinians as well. The Court rejected the argument that the Jewish values of Israel justify the discrimination of non-Jews:

Equality is a fundamental value of the State of Israel. Each [public] agency in Israel - and above all the State of Israel, its agencies and employees - must act equally between the different individuals in the State. … The State's duty to act equally extends to all its actions. It applies therefore also to the allocation of State land. (Par. 21, 23).

In extending its equality jurisprudence, the Israeli Court, as courts often do, attempted to provide its novel decision with the legitimacy of past precedents. To do so, the Court relied on precedents addressing equality of women, of business actors in their relation with the state, and similar issues. (Par. 21-24). The mere resolution to use these precedents in the sensitive issue of land allocation to Arabs announces that the Court's equality jurisprudence is not for Jews only. Thus, as Ilan Saban argued, the "peripheral radiation" of the Court's progressive jurisprudence seems to emanate.[30]

Interference with Discriminatory mechanisms.

The fourth contribution of Qaadan is its unmasking and rejection of certain potent devices used in the past to facilitate and legitimate the discriminatory Israeli land regime. Since I have analyzed elsewhere at length the history of Israeli Supreme Court in these issues,[31] and since the Israeli Court resembled other settlers' Courts; it will suffice to offer a condensed and general characterization of High Courts during the construction of settlers land regimes.[32]

Legal systems in general, and High Courts in particular, play a special role in creating and legitimating settlers land regimes.[33] Typically, settlers' courts attribute to the new land system an aura of necessity and naturalness that protects the new status quo and prevents future redistribution.[34] Formalistic legal tools play a meaningful role in such legitimization. Rules of procedure and evidence, embedded with a heavy dose of technical and seemingly scientific language and methods, conceal the violent restructuring with an image of inevitability and neutrality. The discrimination of non-settler groups and individuals, is often masked by the construction of seemingly ‘neutral’ legal categories which denote in truth particular social and ethnic groups. The legal system often imposes insurmountable procedural obstacles that prevent natives and other 'outsiders' from effectively affirming and protecting their land rights. Courts also adopt a selective deferential position, leaving the administrative authorities with ample powers to apply rules differentiating settler and non-settler populations in relation to land. Furthermore, the channeling of the issues into the technical realms of procedure, evidence and legal presumptions makes it possible to keep most of the issues out of public debate and facilitates the legitimization of land dispossession, transfer and discriminating allocation. These devices allow the application of differential criteria without admitting doing so. They also have the advantage of altering legal rules while maintaining the semblance of continuity.[35] The combined application of these legal tropes, silences the fundamental questions at the foundation of these methods, and contributes to the creation and endurance of discriminatory land regimes. As I will argue below, a major contribution of Qaadan has been its rejection of some (though not all) of these mechanisms. In this short article I would like to point to three major areas where the Court interfered with these discriminatory devices: The use of procedural barriers, the non-interference with administrative discretion, and the question of burden of proof.

The Israeli legal system, like other settler states, constructed procedural obstacles hampering Arab landholders.[36] For example, the Israeli law erected sophisticated and sometime even contradictory "legal time barriers"[37] which hampered attempts of Arab long-term possessors to secure their land.[38] In Qaadan, the respondents attempted to use similar procedural barriers to dismiss the petition. They argued simultaneously that petitioners were too late and too early. (Par. 8). Chief Justice Barak dismissed these procedural attempts. Thus, it rejected the argument that since the petitioners never filled a formal request to become members of the community cooperative the petition was too early. He decided that since it was clear that such a request would have been dismissed, this requirement was futile and therefore unnecessary. (Par. 12).

The Supreme Court has for a long time deferred to administrative discretion pertaining to the Israeli land regime.[39] During the nationalization of Arab land, it construed administrative discretion in ways that left the authorities with ample powers to expropriate Arab land without judicial interference.[40] In Qaadan, Barak interfered with this discretion and decided that the State could not discriminate in its allocation of land. Furthermore, the State had no discretion to release itself from this duty, by using a third body, even if it was the Jewish Agency.(Par. 34-38).

In the past, the Israeli Supreme Court often imposed the burden of proof in ways that hampered Arab attempts to hold land.[41] A substantial contribution of Qaadan is that it discarded respondents' attempts to use this legal device. This novel approach is suggested already in the statement of the case by Chief Justice Barak.[42] The authoritative language of Barak in his opening paragraph released the petitioners from the burden of proving that they could not reside in Katzir merely because they were Arabs. Furthermore, Barak framed the legal question in a way that accepted as evident not only that the Qaadans could not acquire land in Katzir, but that all State land allocated to the Jewish Agency is closed to Arabs. While this unambiguous depiction assisted the petitioners, it simultaneously put a strong spotlight on Israel's discriminatory land allocation system.

Furthermore, the Court ruled that any differential treatment on the basis of religion or nationality is suspect and prima facie discriminatory. It seems that from now on, it suffices to prove a differential attitude on ethnic-national basis, and the onus shifts to the State to prove that this difference is justified. (Par. 24).[43]

This onus is not easy to lift. In Qaadan, respondents conceded that Katzir itself consisted also of a non-cooperative area where Arabs and Jews could live together. Chief Justice Barak lay the onus on the respondents to prove that there was a relevant difference between the two sections of Katzir. The State argued that the disputed sector differed because it was a cooperative. Other respondents, including the Katzir Community Cooperative and the Jewish Agency, argued that the Community Cooperative differed since it constituted part of the "chain of lookouts designed to preserve Israeli expanses for the Jewish people" and because Arabs would not be able to participate in the guard duties. (Par. 27). Barak refused to accept these answers. He "could not understand - and no factual evidence has been presented before us, why the dwelling of the petitioners in the Community Cooperative, situated about two kilometers" from the non cooperative sector of Katzir, "justifies the violation of the equality principle." (Par. 26, 29). He stressed that "in fact, the Katzir Cooperative is open to any Jew. The result is that there is no relevant peculiarity of the residents of the settlement except their national ethnicity which serves … in these circumstances as a discriminatory criterion."(Par. 30).

The Court also casts-off an attempt to introduce the "separate but equal" doctrine. It is important to stress that the Court rejected this argument not only relying upon Brown v. Board of Education - but also on factual grounds.[44] Dismantling the veil of legitimization, Barak proclaimed that "in actuality the State of Israel allocates land exclusively to Jewish Cooperative settlements. The effect of the separation policy practiced today is discriminatory…"(Par. 30).

III. Stumbling Blocks on the Road

While Qaadan undoubtedly constitutes a tremendous change in the Court's rhetoric, the Court raised several stumbling blocks, which limit, or potentially limit the decision's import and could lead also to conservative directions. The major obstacles are the Court's refusal to look at the past, its liberal-individualist outlook, and the maintenance of escape mechanisms.

Isolating the Case: A " forward looking" and Individualist decision

Qaadan draws a line. The past is to be left unchallenged, untouched and unspoken. Moreover, the story of the Qaadans is isolated from their collective identity and needs as Palestinian citizens of Israel.

It is worthwhile to contrast the Court's escape from the past with the radical changes that are taking place in some older settlers' states. Certain courts in settler societies start to look afresh at their past land policies. Thus the Australian Supreme Court, which until the last decade refused to recognize land rights of aborigines, began recently to reframe the legal and political discourse by laying down its famous Mabo v. Queesland (1992)[45] and Wik v. Qeesland (1996)[46] decisions. In Mabo, the Court rejected the legal doctrine of ‘terra nullius’, which categorized Australia as an empty continent, and instead recognized Aboriginal title. "The nation as a whole would remain diminished until there is an acknowledgment of, and retreat from, those past injustices." explained the Court.[47] Similar moves can be observed in High courts of other settler societies such as New Zealand and Canada.[48] Notwithstanding the limitations of these legal decisions,[49] there are those who perceive them as “Catalytic events in Aboriginal decolonization”[50] or as manifestations of a “jurisprudence of regret.”[51] This judicial trend is an engaging attempt to simultaneously acknowledge an excruciating past while taking into account contemporary needs and constraints. It gives hope to the prospect of constructing a common and equitable future in these divided societies.

This tone is missing from Qaadan. Chief Justice Barak commended the petitioners for not "ignoring the Jewish element in the identity of the State of Israel, nor the settlement history of Israel. Their petition is forward looking." (Par. 7). Indeed, the only history present in the case is the Zionist narrative. Katzir itself is built at least partly, on land previously owned by Palestinians.[52] But the nationalization side of the Israeli land regime is left not only untouched, but also untold. Furthermore, the court decision could be understood as leaving past allocation intact. That is, a narrow reading of the case leaves immune all settlements established until Qaadan. Indeed the refusal to touch upon the past goes as far as returning the question whether the Qaadans will be allowed to acquire land in Katzir to the respondents' discretion.[53]

This attitude goes hand in hand with the liberal-individualist prism of the decision. Due to some extent to the framing of the petition, the Qaadans' case is isolated from their collective identity and needs as Palestinian citizens of Israel. Their story is solely of a family, which desired "to live in a place where there is a different quality of life and level of life than where they live today."[54]

I believe that these two omissions could be related to wider changes that are taking place in Israeli society. Israeli collectivist ideology and structure has been gradually weakening in recent period. This goes hand with hand with pressures for the alignment of Israeli society with Western globalization and the principles of free-market economics in general and doctrines of privatization in particular.[55]

This general movement manifest itself in the Israeli land regime as well. From the early 1990’s the Israeli land regime has been undergoing profound (but selective) privatization.[56] This move is likely to grant monopoly over most valuable land in Israel to a limited segment of Jewish society. Simultaneously, it is important to note the concurrent constitutional and legal changes that have taken place in the last years, notably an expanding definition and an increasing protection of property rights. When Palestinian land was nationalized during the State’s formative period, no constitutional guarantee of property existed. Today, after the comprehensive process of land nationalization, property rights have become constitutional due to new Basic Laws and trends in Supreme Court interpretation. Thus, Qaadan could be interpreted as setting the premises for a new, seemingly liberal and individualist property system. Yet, this new system, which does not touch upon past nationalization, nor upon the collective needs of Israeli-Palestinians, could be perceived as a move that legitimates and safeguards the present ‘base-line’ and the power structure of Israeli society.[57] Thus, Qaadan could be understood as contributing to the adjustment to globalization and privatization while maintaining the power structure of Israeli society and keeping most Israeli Palestinians in their relatively powerless position. A small number of affluent Palestinians will be able to buy land. In many cases they will acquire from Kibbutzim and Moshavim land previously held or owned by Palestinians. Most Israeli Palestinians will remain however in their powerless position in Israeli space and society.[58]

Maintaining escape legal devices.

While the Court dismantled some of the major legal tools that permitted the systematic discrimination of Palestinians in relation to land, and concomitant with its refusal to touch the past, the Court maintained at least three additional legal devices. First, Barak left open the use of security arguments to prevent Arabs from residing in Jewish settlements. (Par. 37). Second, the Court carefully framed its decision, as affecting only State land, leaving uncertain the bearing of the decision upon land formally owned by the JNF.[59] Considering that much of Israeli agricultural land as well as many of the rural settlements are on land owned by the JNF, this can further weaken the scope of the decision. Furthermore, true to its "forward looking" approach, the Court ignores that most land currently in formal ownership of the JNF was nationalized from Palestinian refugees and transferred to the JNF after 1948.[60] Finally, Barak stresses, on the basis of the petitioners' argument, that the case does not address Kibbutzim, Moshavim and Mitzpim. (Par. 37). The combined effect of the refusal to address the past, the individualist outlook, and the persistence of these escape legal devices, could hamper the practical effects of the Qaadan decision.

IV. Conclusion

To conclude, I believe that Qaadan is a first step in a long, difficult, and twisting road. It represents an essential transformation in the Court's jurisprudence. It signals a transition from a collective and "settling" into a more individualist and "liberal" Court. Nevertheless, it is not a categorical transformation, but a big leap, from the "Jewish/Zionist" toward the "Democratic/equality" pole within the "Jewish-Democratic State" legal tenet. I believe that the most significant aspects of the case are: 1) it interferes with the discriminatory land allocation component of the Israeli land regime. 2) It offers a narrow reading of the "Jewish" part in the Jewish-Democratic legal paradigm. 3) It expands its "Democratic" side and especially elevates equality into a fundamental legal principle that in most issues confronts successfully the ethnocentric dimensions of Israel's Jewishness. 4) It unmasks and dismantles many, though not all, of the potent legal devices used in the past to discriminate Arabs in land issues.

The case retains however several powerful impediments. First and foremost, it attempts to avoid the past history of the Israeli land regime. It aspires to establish a "forward looking" precedent. As a result, the Court does not touch upon the nationalization component. It also leaves open the question of past discriminatory allocation. The case also retains several escape mechanisms that could be used to continue the discriminating land practices.

These powerful tensions are exposed in the concluding paragraphs of Barak's decision. Situated in the present, Barak seems to be torn between past and future, Zionism and Democracy, the desire to settle Jews and the recognition that all should have equal access to land.

In the future, it would be illegal to discriminate non-Jews in land allocation. But past allocations seem to be immune. Thus, at least for existing Jewish settlements and residents, the case seems to imply that the desire to live in an "Arab-free" community is a legitimate expectation that might give rise to a legal right to do so.[61] This last point is crucial, since it seems to tilt the final outcome against ordering the respondents to permit the Qaadans to live in Katzir. While the Court ruled that the discrimination of the Qaadans is illegal it nevertheless left the decision whether the Qaadans will acquire a house in Katzir to the respondent's discretion.[62] At the time that this article is written, in September 2000, more than five years after they began their attempts, the Qaadans still do not live in Katzir.[63]

I also believe that Qaadan could lead to various directions. The Knesset could attempt to override the decision, and discriminatory practices could be invented. Furthermore, notwithstanding its individualist outlook, and while it could lead to the establishment of shared Jewish and Arab settlements, it is likely that the case would actually lead to a more equal distribution of land to Arab communities. To prevent Arabs from migrating to Jewish settlements, it is likely that the State and ILA would allocate land to existing Arab localities, as well as for the establishment of new ones.[64] It could also serve as precedent in petitions demanding allocation of land for Arab settlements. Indeed, I believe that given the choice of living in equal conditions in Jewish or Arab localities, many Israeli-Palestinians would prefer to retain their collective identity and live where schools, culture and community are Arab.[65] Furthermore, I believe that Qaadan would have a strong impact on the discriminatory practices within the Jewish population. The practices of preventing single parent families or lower income groups from residing in Community Settlements would receive a serious blow.[66] Finally, I believe that Qaadan has the potential to become an important precedent toward a more equal allocation of land and resources in Israel.[67]

Recently Ibrahim and Hilda Dwiri, an Arab couple from Nazareth who failed to acquire land in the "enlargement" [Harhava] of Kibbutz Hassollelim petitioned the Court.[68] While this neighborhood adjoins Hassollelim, its future dwellers will not become members of the Kibbutz. Yet, the Kibbutz retains the power of selection, not only as to its members, but also as to the identity of the residents of this locality. Unlike the Qaadan case, this is a new neighborhood, and thought it is located near the Kibbutz, it is not part of it. I believe that this is a test case for assessing the future trends of the Court. A narrow reading which will uphold the Kibbutz' refusal will practically nullify the significance of Qaadan.

In explaining his Qaadan decision, Chief Justice Barak writes that we should

know and remember that we are doing today a first step in a difficult and sensitive road. We should advance in this road ploddingly, in order not to fall or fail, but we should progress in this road carefully, from case to case, according to the particulars of each case. However, even if the road will be long, it is important that we should always know, not only from where we come, but also where we are going. (Par. 37).

This road would probably wind and twist with setbacks and turns. Yet, I believe the Israeli Supreme Court began in Qaadan an indispensable journey. The Dwiri case is the next step. Let us hope that it will signal that Qaadan was not an isolated one but an important step on the road leading to a more equitable Israel.

Postscript:

This paper was written before the latest events and the violence that erupted between Jews and Arabs in Israel proper. While the tone by which I ended the article might seem out of place, I remain convinced that only full equality to the Arabs citizens of Israel will ensure the stability and strength of Israeli society. Interestingly, this position seemed to be shared by the Shabak, Israeli internal security forces. In interview held on October 14th in Israeli television - that is after the internal violence erupted - Ami Ayalon, former head of the Shabak revealed that his organization has recommended to grant full equality to Israeli Arabs, and that he believes that this should be done immediately. I am convinced that both moral and pragmatic reasons require the strengthening of the democratic aspects of Israeli society in line with the above analysis of Qaadan.

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* Draft, please do not use without the author's written permission. I can be contacted in the following address: DR. ALEXANDRE (SANDY) KEDAR, Law School, Haifa University, 31905, Mt. Carmel, Israel. Phone: 972-4-8240009; 972-4-8240633 Fax: 972-4-8240681 E-mail: sandy@Research.haifa.ac.il. I would like to thank Claudia Kedar, Ilan Saban, Ronen Shamir and Oren Yiftachel for their helpful comments and Keren Arkin for her research assistance.

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[1] BGZ 6698/95 Qaadan v. ILA, Katzir and others (not yet published) at par. 37 of President Barak decision. I will refer to the paragraphs of Baraks' decision without further mentioning the full citation.

[2] The land is owned by the State and is allocated to the Jewish Agency, in a renewable lease. Par. 1-2.

[3] See Moshe Reinfeld, "Bagaz Recommends to find an 'Appropriate Solution' to the Arab Couple desire to Acquire Land in Kazir" Haaretz 18/2/98; Michal Goldberg, "Today the Window of Equality has Opened" Yediot Aharonot 9.3.00.

[4] Justice Kedmy was in the minority. This article addresses only the majority opinion.

[5] Justice Chishin wrote a short separate opinion but agreed to the ruling of Barak.

[6] See Oren Yiftachel and Alexandre (Sandy) Kedar “Landed Power: The Making of the Israeli Land Regime” (in Hebrew), Theory and Criticism 16 (2000): 67-100.

[7] Oren Yiftachel has extensively researched and developed the concept of "Ethnocracy" and applied it to Israel. According to Yiftachel, a major character of Israel as a settling ethnocracy is its project of Judaization. See Oren Yiftachel, "'Ethnocracy', Geography and Democracy: Comments on the Politics of the Judaiziation of the Land." Alpayim 19, 78-105 (In Hebrew, 2000); Oren Yiftachel, "'Ethnocracy': the Politics of Judaizing Israel/Palestine," Constellations 6(3) 364-390.

[8] For details see Yiftachel and Kedar, 2000. R. Kark, "Planning, Housing and Land Policy 1948-1952: The Formation of Concepts and Governmental Frameworks" in Israel- The First Decade of Independence, eds. I. Troen and N. Lucas (Albany: State University of New York Press, 1995), 461, 478.

[9] Alexandre (Sandy) Kedar, "Minority Time, Majority Time: Land, Nation, and the Law of Adverse Possession in Israel" (in Hebrew), Tel Aviv University Law Review 21(3) (1998): 665, 681-682; Yiftachel and Kedar, 2000, at p.78.

[10] That is the State, the Development Authority and the Jewish National Fund, which form together “Israel Land”. See section 1 of Basic Law: Lands of Israel (1960).

[11] Hillel Cohen, Present Absentees: The Palestinian Refugees in Israel Since 1948 at 100 (2000). Yiftachel and Kedar, 2000.

[12] See Alexandre (Sandy) Kedar, Israeli Law and the Redemption of Arab Land, 1948-1969, SJD, (Law School, Harvard, 1996); Kedar 1998, p. 686; Alexandre (Sandy) Kedar "The Jewish State and the Arab Possessor" forthcoming in The History of Law in a Multi-Cultural Society: Israel 1917-1967 (Ron Harris, Alexandre (Sandy) Kedar, Asaf Likhovsky and Pnina Lahav Eds) (Forthcoming, Ashgate, 2001); Ronen Shamir, “Suspended in Space: Bedouins under the Law of Israel”, Law and Society Review 30 (1996): 23.

[13] The ethnic logic of the system functioned mainly to remove Arabs from the land. Yet, typical to an ethnocratic regime, it had an impact on stratification and fragmentation within the Jewish sector as well. See Oren Yiftachel, 'Nation-Building and National Land: Social and Legal Dimensions', Iyunei Mishpat, 21: 637-664 (Hebrew, 1998).

[14] As late as 1995, Arab citizens of Israel were allocated approximately 0.25% of all public land. Yiftachel and Kedar, 2000.

[15] See Oren Yiftachel, "Power Disparities in the Planning of a Mixed Region: Arabs and Jews in the Galilee, Israel" Urban Studies, Vol. 30(1) 157-182. (1993).

[16] That is the agent for Mekarkei Israel (The State, the Development Authority or the JNF.)

[17] But see infra p.12 on escape mechanisms.

[18] See Kedar, 2001; Menachem. Hofnung, Israel - Security Needs vs. The Rule of Law (in Hebrew) (Jerusalem: Nevo, 1991); David Kretzmer, The Legal Status of the Arabs in Israel, (Boulder: Westview Press, 1990), Shamir, 1996.

[19] In other areas, the Court used more overtly Zionist rhetoric. See for Example E.A. 1/65, Yeredor v. Chairman of the Central Election Committee, P.D. 19(3) 365, and Pnina Lahav, Judgement in Jerusalem: Chief Justice Agranat and the Zionist Century (1997). See also Alexandre (Sandy) Kedar, "The Right to Elect and to be Elected" in The Courts of Law: Fifty Years of Adjudication in Israel (David Hishin and others Editors, (Hebrew, 1999) at p. 84.

[20] Only a few years earlier, Barak wrote that the Jewish-Zionist values embodied in the new Basic Laws included the settling of Jews in the expanses of Israel. See Aharon Barak, Interpretation In Law, Vol. 3, (1994) at 330.

[21] This is partly due to the framing of the petition. For an Israeli Palestinian criticism of the framing of this petition, Letter of Maruan Dallal, (Adalah) to ACRI, on file with the author.

[22] "…[T]he special purposes that lie at the foundation of ILA, are the preservation of Israel Land [Mekarkei Israel] in State ownership and the concentration of the administration and development of land in Israel within one statutory agency. This, in order to prevent the transfer of the ownership of the land to unwanted elements, to execute a security policy, and allow the execution of national projects such as the absorption of Aliah, the dispersal of population, and agricultural settlement." In addition the Court stressed the importance of "preventing speculative commerce in State lands. Par. 19.

[23] "Indeed, a special key for the entrance to the house is given to members of the Jewish People (See the Law of Return, 1950), but when a person is present in the house as a legal citizen, he enjoys equal rights as all the other members of the house." Par. 31.

[24] See infra p. 7 and ff.

[25] In an article published by Justice Zamir and Moshe Sobel, entitled "Equality before the Law" 5 Mishpat U Mimshal at 165 (1999) one could find almost no references to Supreme Court cases positively applying the equality principle on Palestinians. For an argument that unlike its jurisprudence concerning discrimination on the basis of gender, the court did not apply an activist approach when the discrimination is based on ethnic/national grounds, see David Kretzmer, "Fifty Years of Jurisprudence on Human Rights" Mishpat U Mimshal, vol 5(1) at 297, 317 (1999).

[26] See Ronen Shamir, "The Politics of Reasonableness -Discretion as Judicial Power" Theory and Criticism 5 (Hebrew, 1994) at p. 7; Andrei Marmor, "Judicial Review in Israel" Mishpat U Mimshal 4 (Hebrew, 1997-8) at 133; Eli Salzberger and Alexandre (Sandy) Kedar, "The Quiet Revolution - More on Judicial Review According to the New Basic Laws" Mishpat U Mimshal (Hebrew, 1998) at p. 489.

[27] Often the Court did so by using an ethnic neutral language and leaving large areas of discretion to administrative bodies. See Ilan Saban, The Legal Status of Minorities in Democratic Deeply Divided Countries: The Arab Minority in Israel and the Francophone Minority in Canada Thesis submitted for the Degree of Doctor of Laws (Hebrew University of Jerusalem, 2000) (in Hebrew) at pp. 261-271, 418-420.

[28] See Moshe Gureli, "Did the Day of the Arabs in Court Arrive?" Globes 17.4.00 at 77.

[29] For the crafting of the petition, see Neta Ziv and Ronen Shamir, "Build your House: Small and Big Politics in the Struggle against Discrimination in Land" Theory and Criticism 16 (Hebrew, 2000) at 45. For a criticism of Adalah of the crafting of the petition, see letter of Maruan Dallal to ACRI (16/12/97, on file with the author.)

[30] See Ilan Saban, "the Impact of the Supreme Court on the Status of the Arabs in Israel" Mishpat U Mimshal 3(2) 541 (Hebrew, 1996). The outcome of previous cases implicating questions of Arab equal access to land usually tolerated their discrimination. Nevertheless, the Qaadan Court managed to use this problematic repertoire as support for the application of the equality principle to Arabs. See for example the Court's use of BGZ 114/78 Burkan v. the Treasor Minister P.D. 32(2) 800.

[31] See Kedar, 1996, 1998, 2001. See also Saban, 2000 at pp. 316-326, 443-453.

[32] This is a preliminary part of a work in progress.

[33] See for example J.W. Singer “Sovereignty and Property”, Northwestern University Law Review 86 (1) (1992): 1, 3, 44-45; J.W. Singer “Well Settled? The Increasing Weight of History in America Indian Land Claims”, Georgia Law Review 28 (1994): 481, 482.; P. Russell, “High Courts and the Rights of Aboriginal Peoples: The Limits of Judicial Independence”, Saskatchewan Law Review 61 (1998): 247-276; E. A. Daes, Special Rapporteur, Human Right of Indigenous Peoples: Indigenous people and their relationship to land (Second progress report) (June 3, 1999 available on U.N. web site www.un.org. On the attitude of U.S law to Chicanos in South-Western U.S. see, Guadelupe. T. Luna, "Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of 'Naked Knife'" Michigan J. of Race and Law 4 at 39 (1998); Guadelupe. T. Luna, “Beyond/Between Colors: On the Complexities of Race: The Treaty of Guadalupe Hildago and Dred Scott v. Sanford”, University of Miami Law Review 53 (1999): 691; W. W. Fisher III, “Property and Power in American Legal History” in The History of Law in a Multi-Cultural Society: Israel 1917-1967 (Ron Harris, Alexandre (Sandy) Kedar, Asaf Likhovsky and Pnina Lahav Eds) (Forthcoming, Ashgate, 2001.

[34] Compare D. Kennedy, “Form and Substance in Private Law Adjudication”, Harvard Law Review 89 (1976): 1685; D. Kennedy, “Freedom and Constraints in Adjudication: A Critical Phenomenology”, Journal of Legal Education 36 (1986): 518-562; D. Kennedy, A Critique of Adjudication: Fin de Siecle (Cambridge, MA: Harvard U.P., 1997); M. Horwitz, The Transformation of American Law 1780-1960 (Cambridge, MA: Harvard University Press, 1977); M. Horwitz, The Transformation of American Law 1870-1960 (Oxford: Oxford University Press, 1992).

[35] As a result, settlers’ courts can maintain that they were only applying existing law, while they were in fact altering the rules in the detriment of non-settler possessors. See for example D. Geier, “Power and Presumptions: Rules and Rhetoric, Institutions and Indian Law”, Brigham Young University Law Review (1994): 451, 454.

[36] Thus, for example the legislation of the 1958 Statute of Limitations and the initiation of settlement process in the Galilee and the Negev led to such procedural barriers. See Kedar, 1998 Kedar, 2001 Shamir, 1996.

[37] The phrase is from Shamir, 1996 at 245.

[38] Thus, in the case of changes in adverse possession litigation, Israeli law simultaneously pushed the limitation period forward, extending the period needed to secure the right of possessors, and backward, applying the extension period retroactively, thereby preventing possessors who already fulfilled the previous limitation period, from acquiring their land. See Kedar, 1998.

[39] See Kretzmer, 1999, at 319, Oren Bracha, "Unfortunate or Perilous: The Infiltrators, the Law and the Supreme Court, 1948-1954", 21Tel Aviv University Law Review, 333-385 (Hebrew) (1998); Yifat Holzman-Gazit, "Immigration Policies, Housing Supply and Supreme Court Jurisprudence of Land Expropriation in Early Statehood" forthcoming in The History of Law in a Multi-Cultural Society: Israel 1917-1967 (Ron Harris, Alexandre (Sandy) Kedar, Asaf Likhovsky and Pnina Lahav Eds) (Forthcoming, Ashgate, 2001); Saban, 2000 at 258-271.

[40] See for example BGZ 5/54 Younes v. The Finance Minister, P.D. 8, 314; AC 58/54 Habbab v. The CAP, P.D. 10 912. See however a contrary example in BGZ 64/51 Daoud v. The Defense Minister and others, P.D. 5 1117. For a general review, see Kedar, 1996.

[41] See Kedar, 1996, 1998, 2001.

[42] "The State of Israel has allocated land to the Jewish Agency for Eretz Israel. The Agency has established a rural community settlement on the land. This was done by way of a Community Cooperative [Aguda Shitufit] … In practice, the Community Cooperative accepts as members Jews only. The result in this situation is that an Arab can not build his house on State land allocated to the Agency. Under these circumstances - and taking into account the particulars of the case - is the decision of the State to allocate land to the Agency illegal because of a wrongful discrimination of an Arab? This is the question we are facing in this petition." Qaadan, opening paragraph of Barak's opinion.

[43] See for example the difficulties encountered by petitioner in BGZ 6532/94 Abu Kaf v. The Agriculture Minister P.D. 50(4) 391.

[44] Barak quoted Brown's decision that "separate but equal" is "inherently unequal". Barak left however open the possibility to apply differential treatment, but it seems that he thought mainly on affirmative action for minorities. Par. 30.

[45] Mabo v. Queesland [No 2]. 175 CLR 1

[46] The Wik Peoples v. Queensland 141 ALR 129.

[47] Mabo, at 82.

[48] See Russell, at 247-276.

[49] See for example Daes, 1999.

[50] Russel, at 258.

[51] J. Webber, "The Jurisprudence of Regret: The Search for Standard of Justice in Mabo" Sydney Law Review, 17(1), 5-28 (1995).

[52] Letter from attorney Tawfik Jabareen, on file with the author (17.8.00). Attorney Jabareen bases his response on a British Mandate land registration of block 12176, parcel 26 registered in 1947 in the name of Latifa Yunes, who in 1948 became an absentee. The land was then registered in the name of the Israeli Development Authority. This parcel is included in the leasing agreement between ILA and the Jewish Agency in relation to the establishment of Katzir. (On file with the author.).

[53] See par. 40. This is the way that paragraph is understood by Adi Niv from the JNF, see Adi Niv, JNF and ILA - The End of the Joint Way?" in Karka vol 49, (Hebrew, 2000) at 5, 6 and by Elyakim Rubinstein, Israel's Attorney General. See Elyakim Rubinstein, "Not the End of the Fulfillment of Zionism" in Karka vol 49, (Hebrew, 2000) at 15, 18-19. For a similar interpretation see Meir Alfia, "In The Essence Of The JNF There Are 'Special Circumstances' Allowing It To Operate Without Applying The Equality Principle On The Management Of Its Land" in Karka vol 49, (Hebrew, 2000) at 21.

[54] Par. 4. It should be noted however that the Court recognizes the possibility of affirmative action in favor of religious or national minorities such as Bedouins. Par. 24, 30, 31. Thus, simultaneously with its refusal to look at the past, and its liberal-individualist outlook, the mere recognition that minorities are entitled to affirmative action contains a potential promise for future decisions.

[55] Uri Ram, "Between Weapons and Markets: Liberal Postzionism in the Age of Glocalism" Working Paper no. 12: Ethnocracy and Glocalism: New Approaches to the Study of Society and Space in Israel (Uri Ram and Oren Yiftachel Eds. 1999) at pp. 41-100.; Menachem Mautner,. The Decline of Formalism and the Rise of Values in Israeli Law. (Hebrew, 1993), Eyal Gross,"Property as a Constitutional Right and Basic Law: Human Dignity and Liberty" Tel Aviv University Law Review, 21(3), 405-447. (Hebrew, 1998).

[56] This process includes steps to transfer the full ownership of urban and suburban houses held in long term leases, the attempts to permit public housing residents to buy their apartments, and foremost, the process of gradual transfer of property rights in agricultural land to Kibbutzim, Moshavim and agricultural companies. See Yitachel and Kedar, 2000.

[57] See Gross, 1998.

[58] See Gross, 1998; Salzberger and Kedar, 1998, Yiftachel and Kedar 2000.

[59] Par. 14. This was indeed the way it was understood by JNF officials. See for example the analysis of the JNF's legal counselor, Alfia, 2000 at 21, 24.

[60] See for example Hillel Cohen, 2000; Yiftachel and Kedar, 2000.

[61] Barak stresses that Katzir was established in 1986, as a Jewish settlement. The settlers in Katzir acquired houses relying on the situation as it was then. These expectations, as well as those of the Jewish Agency, bear some difficulties. Par. 39.

[62] "On the basis of the equality principle, and taking into account relevant considerations - including considerations pertaining to the Jewish Agency and the local settlers… On the basis of these considerations, the state should decide in the appropriate speed if it could permit the petitioners, in the confines of the law, to establish a home for themselves in the confines of the Katzir community settlement." Par. 40.

[63] Nor have they received any formal response to their request to acquire land in this community settlement. Interview with Dan Yakir, ACRI, 1.9.00.

[64] See for example Globes, April 11, 2000 at p. 30 reporting that Israeli authorities are considering the allocation of land for Arab villages, and even the establishment of a new Arab city, as a reaction to Qaadan. See also Prof. Amiram Gonen, "From Bitter will maybe Emerge Sweet." Globes, 30/3/00.

[65] See G'amil Dakuar (Attorney for Adalah), "How much of an Achievement?" Haaretz, (Hebrew, 15.3.00). Dakuar argues that unlike Afro-Americans, Arabs in Israel do not demand integration, but a solution to their land problems, such as the return of "internal refugees" to their villages, recognition of "unrecognized villages", and the allocation of land to Arab localities.

[66] See for example Raviv Druker, "They don't Accept Everybody" Maariv, 6.4.97.

[67] Indeed, recently, the Democratic Mizrachi Rainbow, and a group of academics including myself, petitioned the Supreme Court against the selective privatization of public land and the transfer of much of it to Kibbutzim, Moshavim, and Agricultural Companies. I believe that Qaadan could serve as an important precedent for this decision.

[68] See petition of Ibrahim and Hilda Dwiri v. ILA, Hassolelim, and others (Unpublished, on file with the author.)