If we ever needed proof of the old adage “He who hesitates is lost,” the “Mukhtar Protocol” is a perfect example.
In many areas in eastern Jerusalem, no survey or registration of ownership was ever conducted after the Six-Day War. Instead, the operational guidelines that enabled authorities to grant building permits gave local mukhtars (chieftains or village dignitaries) the sole authority to decide who the legal owners of the land in question are, in effect, reaffirming the Ottoman Empire’s traditional method and circumventing the procedures that normally regulate land registry under Israeli law.
What, you might wonder, allowed this bizarre, backwards system to override normal procedures of land registration? The answer is as pathetic as it is predictable: The State of Israel preferred to self-impose restrictions on its own sovereignty in Jerusalem in the hope that undercutting its sovereignty would appease its critics.
But by failing to clearly assert and enforce Israeli sovereignty in Jerusalem, the government of Israel handed those seeking to deny Israeli sovereignty the perfect opportunity to do so. Beyond the devastating practical results of the “Mukhtar Protocol” for the rule of law, for property rights and for Jerusalem’s delicate demographic balance, the political implications are a self-fulfilling prophecy: When sovereignty is not exercised, it is lost. A government that does not enforce the law does not govern, and the vacuum is filled immediately, and often, irrevocably.
In the final days of Nir Barkat’ term of office as mayor of Jerusalem, the municipality attempted to “refresh” the list of mukhtars authorized to adjudicate land registration; Barkat added his voice to those of the of non-government organizations who mobilized to fight back. In meetings with Minister of Justice Ayelet Shaked and chairman of the Knesset Interior Affairs Committee MK Yoav Kisch, Regavim and other Zionist organizations (including, among others, “Betzedek” and “Betzalmo”) exposed the background of the mukhtars on the list: The overwhelming majority of authorized mukhtars are themselves convicted, serial violators of Israel’s planning and construction laws.
To make matters worse, these mukhtars are paid a hefty fee for their “expert” testimony. In far too many cases, these mukhtars testified that properties were owned by residents of their village when, in fact, the very same land parcels were legally registered in Israel’s land registry as the property of individual Jewish or Arab owners; documents presented by these mukhtars to substantiate their “expert testimony” were proven to be forgeries.
Last week, the campaign began to bear fruit: For the first time, the Jerusalem Planning and Construction Committee rejected dozens of permit requests for projects in the eastern neighborhoods of Jerusalem that were based on the “Mukhtar Protocol.” Representatives of the Likud, the Bayit Yehudi Party, the Hit’orerut Party and Aryeh King’s United for Jerusalem Party cast their votes against the permit requests. Voting in favor of the mukhtar-approved permits were representatives of the haredi parties and the left-wing parties, who for years have been facilitating large-scale Arab construction and Bedouin resettlement in the eastern sections of Jerusalem.
This important vote is part of a larger reform spearheaded by Regavim and taken up by Justice Minister Shaked: In May 2018, the government passed a resolution to undertake full registration of land in eastern Jerusalem. The project, budgeted at NIS 50 million (nearly $14 million), will take years to complete.
The minority voices on the Planning Commission—those who voted in favor of granting building permits according to the “Mukhtar Protocol”—cite the complexity of the process and the years it will take. They argue that the present protocol should remain in force until full registration and regulation are completed; otherwise, they warn, construction in Jerusalem’s Arab sector will be paralyzed. They paint a bleak and threatening picture of the pressures and the inevitable “explosion” that will result if the needs of this sector are not met. Strangely (or not), these same advocates don’t seem the least bit interested in the fact that these very same pressures, this very same paralysis, continues to strangle the growth of the Jewish sector. Nor do they express any compunctions over the trampling of the rights of both Arab and Jewish landowners who have been robbed of their property by the “Mukhtar Protocol.”
Perhaps the most obvious solution is also the most practical, and the most just: Why not apply the very same procedures to the permit process in eastern Jerusalem that apply everywhere else in Israel? While it is certainly true that the village dignitaries have access to family histories and documents that others do not, their “expert testimony” should be considered only one element in the process of determining land ownership. Until the process of registration is completed, the mukhtars of Jerusalem should be permitted to continue to contribute to the process of clarifying land ownership, despite their dismal record of corruption.
They should not, however, be permitted to replace the legal mechanisms created and enforced by the sovereign government of the State of Israel.
Naomi Linder Kahn is director of the International Division of Regavim, a public Israeli NGO dedicated to protection of Israel’s resources and preservation of Israeli sovereignty.