Restitution of Palestinian Property

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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.

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:

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;

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.

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.

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.

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