Restitution of Palestinian Property
By: Issam Mufid Nashashibi:
He is a Palestinian-American activist based in San
Diego, California. The above text is attributable to him and may be used
without permission. This brief does not necessarily reflect the views of
CPAP or The Jerusalem Fund.
Center for Policy Analysis on Palestine: www.palestinecenter.org
The Center for Policy Analysis on Palestine (CPAP), an educational program
of The Jerusalem Fund, promotes analysis and understanding of thePalestine
question and the broader Middle East.
RESTITUTION OF PALESTINIAN PROPERTY
SUMMARY: The U.S. government supports the return of stolen property to its rightful owners by backing the efforts of the Israeli-endorsed World Jewish Restitution Organization (WJRO). This support is in compliance with international law, U.S. law, and the principles of private property on
which U.S. law was founded; Yet the U.S. government violates this position by supporting Israel's refusal to return Palestinian property, whichIsrael seized in violation of UN resolutions and international law.
THE CONCEPT OF RESTITUTION: Restitution is defined as anequitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred; Differing from reparations, which are defined as compensation for something an individual had lost,restitution is an action to recover unjustly seized property.
INTERNATIONAL LAW: Restitution is based on the principle ofthe inviolability of private property dating back to the 1251 Magna Carta.That document prohibited the outright confiscation of enemy property, emphasizing that private property must be protected by law, not power, to facilitate trade and investment. Otherwise, investmentswould be made only in powerful countries, thus restricting trade.Over thecenturies, the practice of confiscation increasingly was denounced as a relic of barbarism, and the immunity of enemy private property was established.
By the end of the 19th century, the principle of the inviolability of private property under military occupation was firmly grounded in international law, first by treaty, then by custom, as evidenced in the Brussels conference of 1874 and in the Hague peace conferences of 1899 and 1907.
The latter conferences' Hague Conventions on Land Warfareincluded article 46, which asserts that private property cannot be confiscated, and article 53, which states that private property used for military purposes may be seized but must be restored when peace is made.Protecting private property seemed so natural to the Brussels codifiers, and to the drafters of the Hague Conventions, that they did not think it necessary to mention it separately, but raised it in the context of respecting other rights. With private property protected in war, enemy property inone's own territory was deemed immune from confiscation.
ISRAELI POLICY: Following Israel's establishment in 1948,some 750,000 Palestinians fled or were driven from their land and homes to points outside the new state, while approximately 230,000 Palestinians remained inside. Israel moved quickly to confiscate the private and communal property of both groups.
In December 1948, the Israeli Minister of Finance issued the Emergency Regulation Relative to Property of Absentees, which was regularly renewed until it was passed, the following year by the Knesset.Called the Law of the Acquisition of Absentees' Property, it defined the status of vacant property and transferred its control to an Israeli government-appointedcustodian. In this law, absentees were defined asindividuals (or corporations) who were nationals of Arab states at the time, residents in such states, or non-Jewish Palestinians who had left their homes in Palestine for places outside Palestine before 1 September 1948.Thus, Palestinians who escaped the war following the 29 November 1947 UN partition of Palestine, including 75,000 who had moved from one part of Israeli-controlled territory to another, were classified as;absentees and by the Orwellian term present absentees respectively, whiletheir property was confiscated. The effects were dramatic: Justprior to the establishment of the state in 1948, Jews owned approximately seven percent of the land. Today, more than 93 percent of the land in Israel is in Jewish-Israeli hands.
UN ACTION: On 11 December 1948, the same UN General Assemblythat
legitimized Israel by passing the 1947 Palestine partition plan passed
Resolution 194 and conditioned Israel's UN membership on its acceptanceof
this resolution. Thus, Israel accepted Resolution 194, which gave
Palestinian refugees the right to restitution of their property, if they chose to return, and the right to compensation for any damage to their property, whether or not they chose to return. The UN has affirmed these rights annually through its resolutions on the inalienable rights of the Palestinian people. In addition to flouting international law onprivate property confiscation, Israel has failed to implement Resolution194.
INTERNATIONAL PRECEDENTS: Ample precedents for therestitution of Palestinian property exist. In the cases cited below, owners were forced to sell under discriminatory laws, or had their property confiscated bythe ruling regimes:
(1) Italy: The 1951 Restitution of Property Law allowed forthe return of Italian state property to its prior owners who lost possession between 1933 and 1945, when Fascist laws prevented property ownership by certain categories of people;
(2) Germany: In 1990, the German
government enacted lawsallowing the restitution of property confiscated
by the Nazi or East German regimes within the borders of the German Democratic
Republic. Also, a Berlin court ruled in 1995 in favor of the return of
property to its Jewish owner,
despite the German government's argument that the property had been confiscated by the Nazis for reasons other than ethnicity.
(3) Eastern Europe:Hungary, Estonia,
and the Czech Republichave enacted laws for the restitution of communal
and some private Jewishproperty. The Bulgarian government has passed, and
the Romanian government is drafting, laws on the return of private property,
while the WJRO is lobbyingvarious governments to facilitate the return
of private Jewish property, including
some 200,000 houses in Poland.
(4) France: An official committee is studying the return of Jewish private property now owned by the Municipality of Paris.
U.S. DOUBLE STANDARD: Protection of private property is partof
the American ethos, as evidenced by the writings of one of its founding
fathers, Alexander Hamilton. Hamilton advocated that private property,
even that owned by foreigners, should be regarded as a deposit, of which
the society is the trustee.
Moreover, by signing andratifying the Hague Conventions, the U.S. enshrined their principles in U.S. law, thusobliging each administration to abide by them. Congress and President Bill Clinton have supported WJRO's efforts regarding restitution of Jewish property in Europe.
Referring to this in a1995 statement, Clinton said;" As the democracies of Europe and America seek to build a new and better world for the 21st century, we must confront and,as best we can, right the terrible injustice of the past.Backing up his words, the Clinton administration appointed Under-Secretary of State Stuart Eizenstat as the Special Envoy of Property Restitution.
Regrettably, the U.S. has failed to push for equal treatment of Palestinian
ISRAELI HYPOCRISY: By placing Palestinian property under acustodian,
Israel admits that it does not own the property. Yet, despite its support
for restitution of Jewish property in Europe, Israel refuses to return
Palestinian property and insists that compensation for it must be paid
government-to-government basis within an overall regional settlement. As recently as December 1997, then-Israeli Prime Minister Binyamin Netanyahu refused to implement a 1951 Israeli Supreme Court decision regarding the restitution of property seized from Christian-Palestinian citizens of the
northern Israel villages of Iqrit and Kufur Bir'im.
Moreover, astatement made by the current Knesset Speaker, Avraham Burg, further exposed the hypocrisy of Israel's position.
Following a 1996 briefing by Eizenstat on the progress of Jewish property
restitution efforts in Europe, Burg stressed that: What we are talking
about is principle. We are not into the price business. What we want is
that not one piece of property which belonged to a Jew will remain
in non-Jewish hands.