Conflict over Waqf property in Jerusalem: Disputed jurisdictions between civil and Shari'a courts

Abstract

Recent revisionist academic legal historians have relocated the Israeli national story within a colonial and postcolonial narrative, and in a global context indigenous groups dispossessed from their communal and ancestral lands are increasingly re-asserting claims to that land through legal and human rights challenges, deploying international human rights law relating to rights to property and minority rights. Waqf property (held in charitable trust for religious purposes) is an important element in Muslim societies, and has been subject to large-scale transfer to Jewish control since the creation of the state of Israel in 1948 (‘redeemed’ for the Jewish people). The role of successive Absentee Property Laws in this confiscation derives from Ottoman land tenure, as modified during the British League of Nations Mandate over Palestine, and subsequently. The Israeli legal system has, devised and utilised various modalities and mechanisms to systematically confiscate Palestinian land in general and more specifically the waqf, while also re-establishing shari’a courts and replacing the shari’a court of appeal in Jerusalem. Mutawallis (managers of waqf) have to undertake 'forum shopping’ for search for the most suitable court (between Israeli civil and shari’a courts and the Palestinian shari’a court) to get and enforce a favourable judgment, but the new structures leave Palestinians with no legal authority over the administration of the waqf system. Recent legal disputes over the status of certain mosques and cemeteries (as waqf properties), and the special situation of waqf property in Jerusalem Old City are examined as sites of Palestinian resistance.