Lecturer, New York University Tel-Aviv
The weakening of the Ottoman Empire following the Crimean War (1853-1856) opened the door for increasing European privileges in the Holy Land, mainly in the Jerusalem governorate (mutassariflik). European powers, mainly through their consulates and churches, utilized the new political environment and embarked on land purchases or lease and the construction of churches, hospitals, schools, and other institutions that continue to play an important role in the socio-economic and political life of Jerusalem, and more broadly that of Palestine. Most of the institutions and many vacant lands were, and continue to be, founded as Christian trusts. Christian trusts joined a well-established tradition of Islamic trusts (awqaf), which was central to Jerusalem and Palestine as well as to other Middle Eastern states. It is estimated that trust properties (Christian, Jewish, and Islamic) comprised in the Ottoman period over 90% of the Old City of Jerusalem, and over one third of the agricultural lands in states like Turkey, Morocco and Syria. As such, trusts comprised a central part of the property system and constituted an important social space in Ottoman cities, especially in the social life of religious and disenfranchised communities. The European-Christian political and geographic expansion in Jerusalem was enabled by the reformed Ottoman land law, which established a new registration system, allowed foreign purchases, and reformed the waqf institution. However, despite significant changes in the waqf institution since then, including restrictions, nationalization, and the granting of private ownership, waqf continues to play a major role in property relations, real estate of Jerusalem, and more broadly in the geo-political realities of Palestine.
Some scholars and some politicians, including Zionist leaders, have wrongly stressed the perpetuity and inalienable character of the waqf by narrowly reading its Islamic juridical basis. They viewed the waqf as a religious institution and frozen property that is placed outside the real estate market, and as precluding the development and productivity of lands in Muslim societies. As my initial research shows, Islamic law (fiqh) and practice in Jerusalem suggests otherwise: property relations and transactions of actual sale, lease, mortgage, or exchange are more widespread than is usually assumed, especially in properties of family trusts. Many waqf properties were rented as shops and houses in some cases for over a century, with the rental lease passing on to the tenants' heirs. Further, several churches in Jerusalem were built on waqf land and some Christian trusts were previously Islamic trusts. Some land right holders have instituted trees, land use, or fruits as the waqf, whereas the land rakaba, ultimate title, belongs to the state or the Waqf administration. Moreover, property devolution in the form of hikr (long-term lease, mostly for 99 years, that is religiously possible under certain conditions) served in reality as a legal outlet to pass property to non-Muslim institutes). The infamous Mary Magdalene Church is only one example of a church that is built over waqf land. Moreover, the neighborhood of Batn al-Hawa in Silwan reflects the legal-political layers of Jerusalem and its environs and the continuity of contestation over property and sovereignty. The Zionist settler groups claim Palestinian-held properties in Jerusalem, leading to eviction of tens of families, for being previously instituted as Jewish trusts.
To complicate our understanding of the property system in Jerusalem and the contemporary realities on the ground of who owns the land and who CAN own it, suffice it to look at Batn al-Hawa case in Silwan. Ateret Cohanim settlers' organization claims to be the trustees of the endowment of Moshe Benvenesti in Silwan that dates back to the 1870s. The endowment included over 70 one-bedroom units for poor Jewish families, originally for Yemenite Jews, and was built following an approval from the Ottoman Sultan. The permit was needed because the land was miri, a property that cannot be instituted as true waqf. The housing units were instituted as Waqf, for being Mulk property, before the Jerusalem Sharia' court in 1899. In 1929 the Jewish families were evicted by the British, and the neighborhood was largely neglected until its full eviction in 1936. The units were destroyed; the land was leased by a Jewish organization in 1945 to a local Palestinian family from Silwan. In 1949 the Jordanian custodian of enemy property claimed the land as enemy – Jewish- property. On the ground, the Palestinians conducted sales, lease, and built houses, and todays it houses over 75 families. In 1967, the administration of the property passed to the Israeli general custodian. Since 1999, Israeli settler groups managed to be appointed as trustees of the Benvensiti waqf and brought tens of lawsuits, most of which are pending, against the Palestinian families for eviction.
These disputes are only part of those that appear in the archival material of the Ottoman Archives, the Jerusalem Sharia' court registers, and the Waqf Administration papers at the Center of Heritage and Islamic Research of the Palestinian Awqaf Ministry, located in Abu-Dis. Beyond these archives, my research will look too at church registers, European consular offices, the Supreme Muslim Council papers, and case law of Islamic and civil courts.
Dr. Ahmad Amara is a part-time lecturer at the NYU Tel-Aviv, and a postdoctoral fellow at Ben-Gurion University. He has a number of articles, an edited volume and a recent co-authored book, with Kedar and Yiftachel, titled, Emptied Lands: A Legal Geography of Bedouin Rights in the Negev (Stanford University Press, 2018).
Dr. Amara is a graduate of the joint PhD program in History and Hebrew and Judaic studies at New York University. Amara’s research focuses on questions of law, history, and geography, including the changing property relations under the Ottoman land reform in the Beersheba sub-district, waqf and endowed properties in Jerusalem, and Ottoman and British judicio-administrative legacies in the Middle East. Amara is also a human rights advocate and holds an LLB and LLM from Tel-Aviv University and a second master’s degree in international human rights law from Essex University in the United Kingdom.