Aadel Ka’adan v. Israel Lands Administration

Our office provides summaries of key High Court of Justice rulings that affected current interpretations of Israeli law. This article explains the case of Aadel Ka’adan v. Israel Lands Administration, which helped clarify issues of Israeli land law.

The case of Aadel Ka’adan v. Israel Lands Administration is a landmark ruling made by the Israeli Supreme Court in 2000. The Court ruled that by allowing only Jewish residents to live in the settlement of Katzir, the Israel Lands Administration and the State of Israel had violated the principle of equality. This decision implied that the Israel Lands Administration was ordered to consider the claimant’s request to purchase for themselves a piece of land in the Katzir settlement for the purpose of building a house.

In this article we will analyze the arguments of the plaintiff and the defendant, as well as the reasoning of the Supreme Court.

Background Information:

The applicants were an Arab couple with a daughter. They applied to live in the settlement of Katzir, which is owned and administered by the Israel Lands Administration. The Israel Lands Administration, among the provisions of its mandate, states in its terms of reference that membership to lease land will only be granted to those who have completed their compulsory military service. In practice, this implies that Arabs are not accepted as members of the Cooperative society which is a prerequisite for living in the settlement. Thus, they are not allowed to live in the settlement or even to rent land. According to the claimants, their application was immediately rejected because of their status as Arabs, since the land was allocated for the exclusive establishment of a Jewish settlement.

The plaintiffs stated that the application of these provisions under such conditions, as well as the allocation of land on the basis of religion or nationality, violates the principle of equality and in consequence cannot be maintained. On the other hand, the defendants state that a change in the provisions and the situation would result in a serious infringement of their autonomy and would constitute an interference in the system chosen by the members of the society.

Issues:

Did the State, through the ILA, act lawfully in giving the Jewish agency the land on which the Katzir Communal Settlement was established, knowing that the claimant cannot build his house on that land?
Would the State have acted lawfully if it had itself established a policy whereby licenses or leases on public land were granted to the Katzir Communal Settlement, limiting its membership to Jews?
Are the actions of the State still illegal in the case where the State itself does not operate directly within the boundaries of the Katzir settlement, but allocates rights to the land to the Jewish Agency, which in turn deals with the Katzir Cooperative Society?

Court’s Analysis:

There are general and overarching objectives that can be found throughout Israeli legislation. They reflect the fundamental values of Israeli law and society, of which equality is one. Every authority in Israel, starting with the government, must to treat all individuals in the state equally.

This applies to the allocation of state land. The Israel Land Administration holds state land in a fiduciary capacity. As such, it is subject to all the obligations of a trustee.

In other words, since the Administration is in theory but also in practice the state itself, it is subject to all the obligations of a public authority. To this end, the decisions of the Israeli Land Council must respect the principle of equality.

This leads to the question: what is equality, and how does it manifest itself in this context?

Equality prohibits discrimination on the basis of religion or nationality. This prohibition is enshrined in the Universal Declaration of Human Rights and is reiterated in the Israeli Declaration of Independence, which states that the State of Israel shall “ensure full equality of social and political rights to all its inhabitants without distinction as to religion, race or sex”. In practice, this principle is translated into legislation that ensures that the principle of equality between all members of society is respected. Different treatment, such as that which is prima facie displayed in this case, is ‘suspect’.

The Court has recognized that there are sometimes contradictions between specific purposes which intends to achieve social objectives and general purposes which aim to guarantee rights. Where this is the case, a balance between the conflicting objectives must be struck (Kol Ha’am Co., Ltd. v Minister of the Interior). The specific objective is preferred when it is almost certain that allowing the general objective to be achieved would cause serious, concrete and substantial harm to the possibility of achieving the specific objective. The objective of the Basic Law of the Land Administration of Israel is “the settlement of Jews throughout the country as a whole, and in rural areas and in areas where the Jewish population is sparse in particular”. Considering this, the defendants pointed out that the presence of Arab residents in the settlement would undermine the specific purpose of the settlement since it would cause the departure of Jewish residents, turning a settlement that was supposed to be a Jewish one into an Arab one.

The defendants argue that:

Since they are also willing to allocate land for the establishment of an exclusively Arab communal settlement, their decision to allocate land for the establishment of an exclusively Jewish settlement does not violate equality (in other words, “separate but equal”, see Brown v. Board of Education of Topeka, 346 U.S. 483, 1954).
Even if the Israeli Land Administration had directly allocated land for the establishment of an exclusively Jewish settlement, this would be legal, as it would embody the values of the State of Israel as a Jewish state.

Court’s Response:

There has been no demand for exclusively Arab communal settlements. In reality, the State of Israel is discriminating through this policy, even though the reason for separation is not a desire to discriminate.
The Court does not accept an approach that places the values of the State of Israel as a justification for discrimination between its citizens on the basis of nationality or religion. Jewish heritage is certainly a central component of Israel’s religious and cultural heritage, but this does not mean that the State will discriminate between its citizens.

The Court recognizes that if the land for the communal settlement had been allocated directly by the State, the State would have been obliged to act equally towards all those who applied for the right to build a house on it. Anyone could have competed for the right to build a house in the Katzir communal settlement.

However, in this case it is not the State itself that transfers the land. This raises the question: Has the State itself violated its obligation to act equally when a third party to whom State land has been transferred adopts a policy of allocating land exclusively to Jews? Yes, what the State cannot do directly, it cannot do indirectly. The State cannot escape its legal obligation to respect the principle of equality by using a third party that adopts a discriminatory policy. A State action carried out in a discriminatory manner by a third party does not lose its discriminatory character simply because it was carried out by the Jewish Agency.

Conclusion:

The State of Israel violated its duty to act in accordance with the principle of equality by transferring the land to the Jewish Agency. It is from the duty of the State to consider the request of the claimants to purchase for themselves a plot of land in the settlement of Katzir for the purpose of building a house.