Recent revisionist academic lawyers and historians have relocated the Israeli national story within a colonial and post-colonial narrative. Current academic work in post-colonial legal geography has also been re-appraising how differentiated territorial ju¬risdictions marginalize ‘unwanted’ social groups. Indigenous groups dispossessed from their communal and ancestral lands are increasingly re-asserting claims to that land through legal and human rights challenges. This study explores the conflict over land in Israel/Palestine within a context of post-colonial legal pluralism. One of the aims of post-colonial theory has been to deconstruct the source of Western epis¬te¬mol¬ogies and reconstruct new meanings through discourse and dialogue. Decoloniza¬tion does not lead to a return to a pre-colonial state, but rather to a transition to a "post-colonial" state, where the effects of colonialism have become an inseparable part of the legal, educational, institutional, and political culture, and where the colo¬nial state remains a point of reference in the local discourse.
This study is not concerned with the essence of the criticism of post-colonial legal theory, as much as it focuses on the effects of this theory on a specific area, which is Jerusalem, and within the framework of a specific topic, which is waqf properties. Je¬rusalem waqf (endowment) properties involve a complicated legal complex com¬posed of several legal references that need to be chosen between as well as disputes over jurisdiction. This situation is also extremely complex due to the consequences of post-colonial legal theory. So, we must question concepts that are taken as unques¬tionable, such as the concept of the nation-state, the rule of law, post-colonial legal theory and finally legal orientalism. It should be noted, however, that post-colonial theory has attracted negative comments with respect to its apparent narcissism. It has been perceived by some as yet another way in which high European theory con¬tinues its dialogue with itself to explain the Other. Therefore, this study urges legal scholars to employ more vigorously legal orientalism as a post-colonial discourse. Its critical methodology provides a pioneering way of thinking about the current struc¬tures of laws. This is important, as law has in many ways essentially remained a ‘Eu¬rocentric enterprise.’ Israel/Palestine has inherited several legal traditions, often of¬fering conflicting sources of legitimacy: Islamic, as applied by the Ottoman Empire un¬til 1918; British colonial, from the League of Nations Mandate (1923-48); Jordanian in the West Bank and Egyptian in Gaza after 1948; and Israeli, from after 1948 with bor¬rowings from US and European jurisdictions.
Land and property constitute an important element in the formation of the existential entity of the Palestinian people living in Jerusalem. Since the establishment of the State of Israel in 1948, these lands have undergone a large-scale appropriation pro¬cess and much of it has been transferred to Jewish control. The role of successive Absentee Property laws in this confiscation is derived from the Ottoman Land Acqui¬sition Law, as amended during the British Mandate of Palestine.
The Israeli legal system has devised and used various methods and mechanisms to confiscate Palestinian lands in general and more specifically property in Jerusalem. For example, in the case of a complaint regarding the ownership of awqaf, Jerusalem¬ites must go “legal forum shopping” to search for the most appropriate court – from civil courts to Israeli Shari’a law courts to Palestinian Shari’a courts to the new legal structures that put Palestinians in Jerusalem without legal authority – in order to ob¬tain a positive and enforceable judgment. Confiscation and appropriation, in its legal context, is practiced as “legitimizing the illegal,” “property laundering,” and “legal fic¬tion.” This practice is imposed on any person who leaves his or her property for more than two years: they de facto lose it, as there is also a ban on movement under the laws of military emergency. Therefore, the property is controlled by law.
In the context of the problematic state of the rule of law, Italian thinker Giorgio Agam¬ben has introduced the concept of the “state of exception,” which lies on the bound¬ary between politics and law, and hence is difficult to define. It applies in cases of civil war or uprising and resistance. In such a “state of exception,” it is easy to “justify” any actions taken by the sovereign, who possesses absolute (almost divine) authority to preserve the legal order, as if he is suspending the law for the sake of the law. The legislation of the principles of the Jewishness of the state and the Nation-State Law, recently enacted by Israel, and the relentless attempt to implement these laws by the legislative, executive, and judicial authorities, are modern, continuous attempts to “legitimate the illegitimate.” Indeed, the High Court of Justice (HCJ) also plays a role in legitimizing Israel’s illegal actions through the veneer of legal judgments conferring ‘legality’ upon illegal Israeli practices. The HCJ has to interpret laws, to establish the boundaries of its authority, and to determine the legality of a policy it has chosen – often widening the borders of its authority and legitimizing its decisions.
Vivid examples of this continuous policy are the confiscation of several Islamic ceme¬teries in Palestine in general and in Jerusalem in particular. In the Palestinian 1948 lands, the Ijzm and Al-Birwa cemeteries, and in Jerusalem the Mamilla (Ma’mun Allah in Arabic), Yusufiya and Bab Al-Rahma cemeteries all ended up in the hands of Israel through laws which have been ratified by Israeli courts and the HJC.
The Islamic legal system has been, from the outset, concerned with the basic require¬ments of the human being, asserting the supremacy of the value of justice and the principle of human dignity. It has laid down a number of principles which constitute the heart and the basis of that legal system. One of the “necessities” (daruriyyat – the five essentials of life) in Islamic law is the right to property. The influential and signif¬icant institution called a waqf (unincorporated charitable trust) exists to provide the Muslim community with extensive social, educational and economic services.
Waqf in Arabic means “hold, confinement or prohibition.” A waqf is established under Islamic Shari’a law by a living man or woman, the waqif (founder/settler), who holds a certain property which makes up the asl (principal) of a revenue-producing property, inalienable in perpetuity. This preserves it for the confined benefit of certain philan¬thropic objectives and prohibits any use or disposition of it outside of those specific objectives. The property is therefore placed under the possession of a fiduciary (wali or mutawalli) who assures that the confined waqf reaches the hands of the right mus¬tahiqeen (beneficiaries). It is also prohibited from sale, gift and inheritance. Zarqa (1998), Kuran (2001), and Sait & Lim (2006) pointed out that the Islamic waqf has been an important tool of institutionalized sustainable giving, that has been able to achieve development and provide services to all strata of society almost in every aspect of life without relying on governmental or foreign funds. Baskan (2002) found, through the great variety of recipients and players, that the waqf system “succeeded for centuries in Islamic lands in redistribution of wealth, as a product of state-individual coopera¬tion.” The awqaf supported so many economic sectors that the evolution of Islamic civilization is incomprehensible without taking them into account. Kuran (2001) and Hodgson (1974) commented that the waqf system eventually became the primary “vehicle for financing Islam as a society.” Fyzee (1974) also claimed that waqf is the most important branch of Muhammadan law, for it is interwoven with the entire re¬ligious life and social economy of Muslims.
The waqf itself is a ‘juristic person,’ as is the modern corporation; such concept is acknowledged in Islamic law, called thema. The concept of waqf points towards an Islamic system that recognizes the significance of the non-profit sector: a ‘third sector’ in social and economic development. The fiqh (Islamic jurisprudence) on waqf through Shari’a law also offers the required legal and institutional protection for this sector to function isolated from self-interest motives and the power of government.
Due to several factors, practices, limitations and challenges, the waqf system in the Islamic world has failed to meet the objectives for which it was originally intended, and has declined to the extent that it has failed to provide the minimal services it offered in the past. Researchers have explored the possibility of revival, examining, for example, the social and historical perspectives of waqf. This study also sought to investigate the possibilities for revival of the waqf system. It explores whether the legal process itself permits adaptation in response to inevitably changing conditions and needs. This study examines the impact of Islamic countries’ secular law upon the waqf, taking the waqf in Jerusalem as a particular case study. The waqf in Palestine experienced decline similar to elsewhere in the Islamic world but has faced different challenges and a different fate. Today, the legal system that governs the waqf in Pal¬estine notably has been influenced by the powers who have ruled Palestine in the last two centuries, as well as by the challenges of the political situation on the ground.
This study, therefore, demonstrates the reasons why the position of the waqf in Pal¬estine, and more specifically in Jerusalem, is distinctive and different from other Is¬lamic countries (including non-Islamic countries with substantial Muslim population). Through empirical work, the nature of the specific decline of this institution in Pales¬tine/Israel and its more general deterioration in the Islamic world is considered and assessed, highlighting similarities and differences regarding the roots of its decline.
This study found that the main reasons behind the decline of the waqf in Palestine are politically grounded, influenced by the control and land acquisitions undertaken by the Israeli government. My research argues that Israel considers the historic role of the waqf to be a threat to its physical integrity. This is despite the physical occupation of the Palestinian community and its administrative and legal system. Examples in¬clude recent confiscations by the Israeli state, such as of Mamilla cemetery, which will be discussed as a case study. There are varying degrees of control exerted by Israel that have significantly affected the performance of waqf. Controlling awqafs’ internal administration as well as monitoring and hindering the establishment of new awqaf are common practices by the Israeli government. State interference contradicts the independence and autonomy that are foundational aspects of the waqf. Moreover, Israel transferred the ownership of waqf from Muslim hands to the Custodian of Ab¬sentee Property (through the Absentee Property Law 1950) who on behalf of the state and through “legal fiction” has conveyed waqf properties into Jewish hands, disre¬garding Shari’a law. This study shows that these laws were directed towards dimin¬ishing the social, economic and political status of the Palestinian communities in Is¬rael.
Reforms in Arab and Muslim countries with respect to waqf have mainly abolished the ahli waqf (family waqf) and incorporated waqf khayri (charitable waqf) into the state’s structure, in several occasions benefitting the Muslim community. In contrast, the Israeli government neither redistributed the waqf lands to benefit the Palestinian community, nor did it incorporate waqf khayri into its state structure as other Arab countries have done. Rather, Israel confiscated and administered these awqafs, re¬stricting Muslim jurisdiction over them and depriving the Muslim community of ben¬efiting from them, which is the principal purpose of their establishment.