# Mawat land doctrine

"Mawat" ("dead land") was an Ottoman legal category used to classify lands as unused ("dead") land, and thus as state land. This legal category is related to the terra nullius concept, used during the colonial period to classify "land without a sovereign." Critics refer to the interpretation of this legal category by the State of Israel as the Mawat land doctrine, under which many Palestinians, particularly in the Negev, were dispossessed based on this legal basis. An alternative term for this is, therefore, the "Dead Negev Doctrine".

## History
### Origins: Ottoman period
#### Historic context and legal innovations

A distinctive feature of the Ottoman Empire was that it had many unstable border regions in the south, as these were inhabited by various nomadic and semi-nomadic tribes, such as the Bedouins, Kurds, or Turkomans.
The principles of the mawat legal category were established in the Ottoman Land Code of 1858. Its formulation occurred during the so-called Tanzimat era, which fell firstly between the brief conquest of Ottoman Palestine by the Egyptians in the 1830s and the Taba Crisis of 1892-1906, during which the British, having by then colonized Egypt, gradually wrested away the Sinai Peninsula from the Ottomans and also sought to incorporate parts of the Negev into their empire, and secondly in a period when the tribes in the northerly border regions increasingly gained power and threatened to secede.
The Ottomans therefore sought to stabilize the border regions of their empire. One of the means to achieve this was the so-called "Tanzimat land reform," which sought to sedentarize the inhabitants of border areas by enforcing continuous farming of their lands. The key Ottoman innovations were: (1) While in traditional Islamic law the permission of a tribal leader or the state was required to develop unused land and thus acquire it as productive land (" miri"), the Land Code now even "rewarded" unauthorized land development: land that had been made productive could be retroactively registered in the so-called "tapu registers" for a registration fee, after which it automatically became something similar to the private property of the farmer (Gerber: "private for all practical purposes [...] though formally belonging to the state"). (2) However, this land had to be continuously cultivated. If cultivation was neglected for more than three years, the owner risked losing the land. Although the state could not reclaim it and classify it again as mawat land (Tute: "once miri always miri"), it could classify it as " mahlul" and demand that the owner pay the registration fee again. If he failed to do so, the state could auction off the land, but had itself "no power of resuming it."

#### Legal practice

By and large, the Tanzimat land reforms can not at all be considered a failure. Although, Israeli scholars used to argue that the obligation to register land was "habitually and widely disregarded" throughout Palestine, recent research has disproven these claims. Thehe structured registration of current land holdings by "yoklama tapu commissions" proceeded around the Empire at a slow but steady pace, as the reforms were enacted over decades. In the rural areas of the southern Palestine district of Hebron, for example, the first Ottoman land-tax register from 1876 shows that from village to village, structures, residences, and farmlands were overwhelmingly registered and taxes paid, throughout the district. Furthermore, a review of Ottoman shari'a court documents shows that land transactions were also frequently recorded in the courts, both before and after land reforms. These court documents were accepted by the Ottoman land-reform commissions as validation of ownership, showing how the Ottomans worked with local officials to enact their reforms with cooperation from regional actors.
Additionally, alongside tapu entries, "tax records, oral testimony, and sharia-court documents" were considered "sufficient to prove property tenure." The Negev serves as a fourth example of the flexibility of Ottoman legal practice, and additionally as an example of a much more Bedouin-friendly policy toward the end of the Ottoman period. There, the first and only attempt to carry out structured land registrations with the help of a mixed commission of Ottomans and Bedouins was undertaken in 1891, even though there was a lack of Ottoman military presence in the south. In response, a 1902 decision exempted Negev Bedouins from the requirement to register their lands. Instead, land ownership was governed "based on local custom and tradition." Similarly, in Syria, as in the Negev, the Ottomans adopted a flexible approach: they were satisfied with the use of land as "mere" grazing land (rather than formally registered farmland) by tribespeople to recognize it as their tribal territory.
Alongside the aforementioned decision, several factors demonstrate that the Ottomans did not consider the Negev as mawat, but rather regarded it as Bedouin land even without formal registration: (1) the Ottomans continued to levy land tax on Bedouin agricultural land, (2) they purchased land from Bedouins to establish the city of Beersheba, (3) similarly, Zionists had to buy their land in the Negev from Bedouins; (4) Ottoman officials repeatedly resolved Bedouin land ownership disputes in the Negev.

### Mandatory Palestine
#### Legal innovations

After the Mandate for Palestine came into effect in 1920 the territory came under the administration of the colonial British regime. The British High Commissioner Herbert Samuel, "alarm[ed] over the apparent 'loss' of land to peasant farmers bringing seemingly unoccupied land under cultivation," which he had intended for Zionist immigrants, set about the task of reorganizing land ownership in Palestine. Particularly through two decrees, Palestinians were deprived of rights that had been granted to them by the Ottoman Land Code: The "Mawat Land Ordinance" of 1921 stripped them of the right to develop mawat land without prior approval from the state authorities. Similarly, the "Mahlul Land Ordinance" of 1920 restricted the rights of heirs to miri land and of squatters on miri land not claimed by heirs (="mahlul"), which, during Ottoman times, could be acquired in a similar way to mawat land.
The 1921 law was an important turning point in defining the legal concept of mawat lands. Until then the mawat classification was for lands of marginal agricultural importance located outside the main areas of settlement. The possibility to gain title by cultivation that existed under the Land Code had encouraged improvement and the enlargement of settlements in sparsely populated areas. The 1946 Survey of Palestine by John Valentine Wistar Shaw described the change from mawat lands: "Nowadays, the development of 'waste' land without prior leave from the State is legally a trespass." The only way to gain title to the mawat (and mahlul) lands after 1921 was "allocation from the State."
In the 1920s, mawat and mahlul lands became central instruments for the British to transfer land from Palestinians to incoming Zionist settlers. Under the Ottomans, Sultan Abdul Hamid still had to use his private funds to purchase land specifically to settle Bedouins, as mawat lands were public lands, and Ottoman law prevented the state from freely disposing of mahlul lands (see above). In contrast, the British reinterpreted mawat, mahlul, and even miri lands as akin to "crown land" and leased them at their discretion: despite Jews making up only a little over 17% of the population by the late 1920s, by 1943 — after the British had already begun to scale back their land redistribution policies due to the growing issue of Palestinian landlessness — nearly 73.5% of state lands leased by the British went to Jews (with 98.6% of that under long-term leases and only 1.4% under short-term leases), while only 26.5% went to Arabs (of which 1.9% were long-term leases and 98.1% were short-term leases).

#### Legal practice

Despite these legal changes, their practical implementation faced significant challenges. Although the two decrees were designed and suitable to dispossess Palestinians quickly, they were "practically never" applied. Key reasons for the failure of these legal innovations included strong resistance from the Palestinian population, and more critically, the British, lacking knowledge of land ownership due to the previous failure of Ottoman land registrations, faced further difficulties when outraged Palestinians refused to cooperate with the newly established registration commission. As a result, the commission struggled to gather necessary information. The Bedouin-held lands in the Negev were still entirely unregistered when Palestine was partitioned in 1948; the only registered lands in the Negev during the British Mandate were some 10,000 ha purchased by Jewish settlers from the Bedouins and some 6,400 ha in Arab possession. Furthermore, even after identifying lands that were potentially to be classified as mawat or mahlul, the new regulations still required prove that they had not been cultivated for three years. This evidence was often undermined by Palestinians, who, likely due to "gentleman agreements," frequently testified to the contrary.
More relevant specifically to the Negev is that, although attempts were made to analyze which lands could be classified as mawat, the British — who were determined not to cede the Negev to the Zionists — adopted the Ottoman position, according to which traditional Bedouin land laws prevailed in the Negev. Accordingly, they declared that the Bedouins' "special rights and customs" were not affected by the aforementioned new ordinances. A year later, Article 45 of the Palestine Order in Council confirmed the Tribal Court of the Bedouins, which had already been established by the Ottomans and regulated matters in the Beersheba district according to Bedouin Tribal Law. In a 1929 court ruling, it was further affirmed that this court had jurisdiction over cases involving land in Beersheba that was not formally registered. On this note, the 1931 Palestine Census also stated:
   In a strict sense most of the land [in the Negev] may be described as mewat, not having been assigned or disposed of by deed. Nevertheless, the 'privileges' of the nomads have been confirmed from time to time, and it is, undoubtedly, part of the 'customary' law, as opposed to formal law, to recognize the nomadic traditional cultivation in this area as a normal assignment.
Additionally, the British built on the fact that the Ottoman Land Code provided for the possibility that "vacant land [...], such as mountains, rocky places, [...] grazing grounds, which are [...] assigned ab antiquo to the use of the inhabitants of a town or village" should not be considered mawat. On this basis, the British District Officer of Beersheba considered the uncultivated land in his district in 1926 as "Metruka for pasture by custom"; the British also prohibited Zionist land purchases in the Negev, stating that "the cultivable land in the Beersheba sub-district is regarded as belonging to the Bedouin tribes by virtue of possession from time immemorial".

### Israel

The British never completed their surveys of the Negev and for various reasons most of the mawat lands were still unregistered when the State of Israel was established. The mawat lands became property of the state under Israeli law which continued to administer the land under the pre-existing laws.
The Israeli state considers all the lands of the Negev Bedouins mawat (dead lands) belonging to the Jewish state. After the 1947–1949 Palestine war, the administration of the mawat lands passed to the Israel Land Administration. The few Bedouin remaining in the Negev after the 1947–1949 Palestine war were transferred to a small region of the Negev under military rule known as the Siyag.
When land registrations continued in the Negev in the 1970s it was under modified principles of land settlement. The matter dragged on for several decades with compensation offered in lieu of registering the lands of Bedouin claimants.
The Israeli state began submitting counterclaims against Bedouin claimants in 2004. The modern State practice of claiming Bedouin lands as mawat is sometimes called the "Dead Negev Doctrine".
Israeli courts have consistently upheld the applicability of mawat land doctrine in these disputes. A 2012 Israeli District Court decision registered the Araqib (Araqeeb, Araquib) lands as state property. The Bedouin al-Uqbi tribe appealed the decision but the Beersheba District Court ruled against them. The court ruled that the disputed Araquib lands were mawat (dead lands) and should be registered as state property.