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Restitution of Palestinian Property
by Issam Mufid Nashashibi
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, which
Israel seized in violation of UN resolutions and international law.
The Concept of Restitution:
Restitution is defined as an equitable 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 of the 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, investments would be made only in powerful countries, thus
restricting trade. Over the centuries, 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 Warfare included 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 in one'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-appointed
"custodian." In this law, absentees were defined as individuals
(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, while their
property was confiscated. The effects were dramatic: Just prior 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 Assembly that legitimized Israel
by passing the 1947 Palestine partition plan passed Resolution 194 and
conditioned Israel's UN membership on its acceptance of 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 on private property confiscation,
Israel has failed to implement Resolution 194.
International Precedents:
Ample precedents for the restitution of Palestinian property exist. In the
cases cited below, owners were forced to sell under discriminatory laws,
or had their property confiscated by the ruling regimes:
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Italy: The 1951
Restitution of Property Law allowed for the 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;
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Germany: In 1990, the
German government enacted laws allowing 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.
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Eastern Europe: Hungary,
Estonia, and the Czech Republic have enacted laws for the restitution
of communal and some private Jewish property. The Bulgarian government
has passed, and the Romanian government is drafting, laws on the
return of private property, while the WJRO is lobbying various
governments to facilitate the return of private Jewish property,
including some 200,000 houses in Poland.
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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 part of 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 and ratifying the Hague Conventions,
the U.S. enshrined their principles in U.S. law, thus obliging 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 a 1995 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 property restitution
rights.
Israeli Hypocrisy:
By placing Palestinian property under a custodian, 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 on a
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, a statement 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."
Issam Mufid Nashashibi
is a Palestinian-American activist based in San Diego, California.
Source:
by courtesy & © 2001 Issam
Nashashibi and CPAP
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