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In Watershed, Israel Deems Land-use Rules of Zionist Icon ‘Discriminatory’

In a landmark decision, Israel’s attorney general ruled last week that one of the fundamental tenets upon which the Jewish state was built — acquiring and reserving land for Jews to live on — is discriminatory and should not continue with state assistance.

Attorney General Menachem Mazuz was responding to a Supreme Court case involving Jewish National Fund, an organization that helped build the Jewish state by purchasing land for Jewish settlement — largely with funds donated by Jews in America. Land owned by the fund is designated as public land and leased by the government to homeowners. In his January 26 ruling, Mazuz said that the government may no longer market the land if the fund allows only Jewish tenants.

Among American Jews, Jewish National Fund is best known for its iconic blue tin collection boxes and for its trademark work planting trees in Israel. But the fund helped write Israeli history with its land purchases, which were crucial in determining the borders of the nascent state. Today, JNF owns 13% of Israel’s land, home to 70% of the population. Through a 1962 agreement with the government, it has leased that land to Jews through the government’s Israel Land Authority. The attorney general’s decision throws that historic role into flux.

The chairman of JNF told the Forward that his organization is in talks to sever its official relationship with the state in order to preserve its mission of protecting the land for Jews.

“The state is obliged to treat all its citizens equally,” Chairman Yehiel Leket said, “but we are not the state.”

Beyond the consequences for JNF, the attorney general’s ruling could be pivotal in a larger debate over how to reconcile Israel’s status as a Jewish state with its commitment to equal rights for all its citizens. This is not the first case in which the government’s treatment of Israeli Arabs has been challenged, but legal experts say this case could be a breakthrough for advocates of Israeli Arab rights, who have long complained of unequal government treatment.

“You’ll see a progression of cases now, trying to challenge those pockets of discrimination that now have a basis in law,” said Hebrew University law professor David Kretzmer, author of the “The Legal Status of Arabs in Israel.” “One by one they will come up, and we will have to work out a new kind of social contract.”

Aside from debates over land rights, citizenship rights are the other main arena in which Israel’s treatment of its Arab citizens faces challenges. The Supreme Court is currently reviewing a challenge to a recent Israeli law that bars non-Jewish spouses of Israeli citizens from coming to live in Israel under family reunification policy.

Many defenders of the traditional vision of Zionism, including Leket, fear that extending identical land and citizenship rights to Arabs could weaken Israel’s Jewish majority and threaten its Jewish character.

“Zionist ideology is not in favor of discrimination,” Leket said. “But we ought to look after Jewish interests, and sometimes there might be a conflict between Jewish interests and Arab interests.”

Leket appears to have public opinion on his side. In a poll commissioned by JNF last month, 70% of respondents moderately or strongly objected to JNF land being offered to Arab Israelis.

The issue of land rights in Israel heated up recently when the Bush administration protested a plan, disclosed two weeks ago, to confiscate lands in East Jerusalem that are owned by Palestinians living in the West Bank. The plan, drafted last June by a two-man Cabinet committee on Jerusalem, including ministers Natan Sharansky and Zevulun Orlev, treats Jerusalem property owned by West Bank Palestinians as “absentee property” under 1948 rules aimed at Arab refugees. Mazuz ruled Monday that the absentee rules could not apply to individuals separated from their land by a “unilateral” Israeli government action.

The absentee dispute does not involve Israeli citizens, however, so it has fewer implications for the Israeli legal landscape than the JNF case. The complaint against JNF stems from April 2004, when six Israeli Arab families won Lands Authority bids for plots in the Galilee town of Carmiel. Later, after learning that the plots were owned by JNF, the authority froze the deal, citing fund rules.

Leaders of American groups that supported the Arab families’ legal appeal acknowledged that there were sound historical reasons for JNF restrictions. “In 1948 and before, a few hundred thousand Jews were pitching their tents in a hostile Middle East,” said Ami Nahshon, president of the New York-based Abraham Fund Initiatives.

But he said historical circumstances have changed, and so should JNF. “History doesn’t stand still,” Nahshon said, “and the need for Israel to work out the sharing of the land with Arab Israelis is all part of the process of maturing.”

For now, the attorney general is permitting the Lands Authority to go on marketing JNF land as long as it swaps parcels of land with the fund when an Israeli Arab wins a bid, ensuring JNF control of a consistent percentage of Israel’s land. The compromise is opposed by Arab-rights groups that brought the case.

Leket said that in order to maintain its mission, the fund has initiated talks to cut ties with the government and to begin marketing its own land.

Israel, unlike America, has no clear laws limiting private landowners’ discretion in how they market their land. But experts said a privatized Jewish National Fund would likely still face legal challenges, in part because of the intricate web that connects JNF to the state. One key link is the 1960 Basic Law that defines all JNF land as “Israel lands” along with the 80% of the country’s land owned by the government.

Because of these links, said Supreme Court justice Itzhak Zamir, a former Israeli attorney general, privatization is “not very realistic.”

Even if official ties are severed, further problems could be created by the source of some JNF land. Some 60% of the fund’s 550,000 acres was purchased from the government in a special deal soon after the 1948 War of Independence. Arab-rights advocates say this should preclude JNF from marketing this land only to Jews.

“It can’t be regarded as private land, where the Jewish National Fund will be given a free hand to do whatever it pleases,” said Dan Yakir, chief legal counsel for the Association for Civil Rights in Israel, one of groups that brought the case.

Leket, however, said the fund had fairly bought the land it owns, with donations from Jews around the world — donations that were “designated for the purchase of land to be owned by the Jewish people and held in trust by the Jewish National Fund.” He said he would not allow that historic covenant to be broken.

“We are still fighting for our future existence as a Jewish state,” Leket said. “In order to strengthen the Jewish state it’s justified to have a Jewish organization strengthening our presence here.”

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