Palestinian private property rights in Israel and the Occupied Territories.

• Author: Howlett, Stacy

ABSTRACT

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer of private land from Arabs to Jews in the past 100 years, and by examining the law governing occupied territories, current treaties, and humanitarian law, one can suggest where title should rest.

This note argues that in most cases Palestinians have superior rights to land taken from them since the birth of Israel. Simply giving this land back to Palestinians, however, is not a viable option because it would cast serious doubt on the legitimacy of the state of Israel. Instead, Palestinians with property rights should be compensated for their property and for the inability to exercise their right to return.

1. INTRODUCTION

   [Private property] is one of the most fundamental institutions of mankind and there is no workable substitute for it. It is the perennial antagonist of centralized power. Without private property there can be no prosperity, no peace and no freedom. And justice itself will be a haphazard and occasional thing. Private property is "the guardian of every other right," as the 18th century Virginian Arthur Lee said.(1) Land ownership is and has always been the key issue in the Palestinian-Israeli conflict. Discussion and disputes over land usually take place on the macrocosmic level of national territory and borders. Exacerbating the Middle East conflict, the Holy Land(2) has been prized above all others for thousands of years because of its historical and religious significance. The specific issue of Palestinian's private property rights in Israel and the occupied territories, however, is critical to a lasting solution to the conflict in the Middle East.(3) Many feel that this issue is insurmountable and continually threatens to destroy the peace process.(4)

   A nation is ultimately made up of individuals, so perhaps private land ownership is the microcosmic embodiment of the entire Palestinian-Israeli conflict. As Eyal Benvenisti states:

   The private claim to repossess a plot of land is immediately translated into a communal right to return, a right whose implementation may bring about far-reaching social and political repercussions. Therefore, those private claims raise one of the major stumbling blocks to Israeli-Palestinian reconciliation.(5) Many Palestinians displaced for up to fifty years still hold title certificates to homes where Israelis have put up their book shelves, planted gardens and raised their children. The breakdown of the peace process, the eruption of war-like violence, and the many lives lost in the past few months evidence the near impossibility of formulating a final settlement plan. This paper does not attempt to address the issue of borders or answer hard questions such as the status of Jerusalem. It simply suggests that because private property was taken from individuals, a successful settlement must involve individuals.

   This paper will analyze the Palestinians' legal and equitable claims to private property in Israel and suggest a property settlement that can best accommodate both parties. Part II of this note will give background history of the Holy Land leading up to the present, with special emphasis on the displacement or transfer of populations within the region and the reasons behind these movements. Part III will explain the various laws that can and should govern refugees in an occupied territory. Final]y, Part IV will apply this law to the historical facts and present considerations in an effort to reach a workable solution.

2. HISTORICAL BACKGROUND

   It is difficult to understand the complexity of the Palestinian-Israeli conflict without at least a rudimentary understanding of the history of the region. This sketch outline is meant to frame the current dispute over private land ownership. Special attention is given to the questions of who the Palestinians are, who the Israelis are, and what demographic and land ownership shifts have taken place in the Holy Land in the past one hundred years.

   1. The Ottoman Empire's 500 Years of Control Over the Holy Land

      Numerous rulers have controlled the Holy Land in the past three thousand years.(6) For the purpose of this discussion, modern history begins almost 500 years ago when the Ottoman Empire took dominion of the Holy Land.(7) The Ottoman Turks controlled the Holy Land from 1517 to 1917.(8) Their Empire, ruled from what is now Turkey, extended from the Balkans to Vienna, through most of the Middle East, and from Egypt to Algeria.(9)

      The Ottomans, as Muslims, believed that law was derived of revelation from God.(10) The entire Muslim system of law is believed to be of divine origin.(11) Non-Muslim members of Muslim states were divided into two groups: (1) heathens and (2) Jews or Christians (collectively known as "people of the book").(12) The Sultan, or ruler of the Ottoman Empire, granted special charters to the "people of the book."(13) Rights conferred in the charter depended on the importance of the community.(14)

      By the nineteenth century, different regions within the Ottoman Empire began noticing that their rulers were doing nothing to protect them from the suppression of European colonial powers.(15) With European nationalism as a model, the people of these regions began yearning for their own independent states.(16) Naturally, this was a strain on the Empire's unity.(17)

      World War I signaled the fall of the Ottoman Empire. The Allied Forces promised Arab peoples sovereignty over their territory if they assisted them in defeating the Central Powers.(18) The Arabs formally accepted this bargain in negotiations between Sherif Husain, Emir of Mecca,(19) and Sir Henry McMahon, British High Commissioner of Egypt.(20) The British, however, dubiously contended that Palestine had been excluded from the agreement.(21)

      In 1916, when the fall of the Ottoman Empire was imminent, negotiations began between Britain, France, Russia, and Italy to divide up the Empire among the European colonial powers.(22) Since it was home to important religious sites, the Allied powers attempted to place Palestine under international control.(23) Despite this, the League of Nations ultimately decided to place Palestine in the hands of Great Britain under the Mandate system. In theory, the Mandate was supposed to be a temporary and transitory phase to usher Palestine into independent statehood.(24)

   2. The Zionist Movement into the Holy Land

      As a result of increased anti-Semitism in the late nineteenth century, Zionism emerged as a European-wide political movement.(25) Its purpose was to aid Jews in escaping persecution in Europe by establishing a national homeland.(26) The first important leader of this movement was Theodore Herzl, the editor of an influential newspaper in Vienna.(27) Initially, Zionism was a relatively secular movement.(28) Early Zionists considered several sites, including Uganda, for the Jewish State.(29) Palestine, however, was ultimately Zionism's target because of its historical ties to the Jewish people.(30)

      The acquisition of land in Palestine was essential to the Zionist dream.(31) Zionist propaganda stated that Palestine was "a land without people for a people without land."(32) Some individuals bought land for themselves, but a larger portion of the land was bought by a fund set up for the purpose of acquiring land(33) "The Fund" would then lease the land to individual Jews, who were forbidden to sublease or employ non-Jews.(34) Naturally, Arabs were displaced, but Herzl believed that taking land and the expulsion of Arabs were complementary aims if Zionism were to succeed in achieving its primary goal.(35)

      The Zionist plan did not go unnoticed by the Arabs.(36) Unfortunately, the Ottomans instituted a land registration system in the late nineteenth century that led to wealthy Turks gaining legal title to land in Palestine through questionable means.(37) Consequently, the Arab family farmer who may have owned the land for generations retained possession, but became a tenant of the wealthy absentee owner.(38) "The Fund" usually bought property from the wealthy absentee owners, giving the farmer no choice but dispossession.(39) Sometimes, Palestinian Arabs refused to leave their land, so Turkish authorities would physically evict them at "The Fund's" request.(40)

      When Herzl died in 1904, Chaim Weizmann took over the Zionist movement.(41) Weizmann had a position in the British admiralty during World War I.(42) He tried to persuade a contact, Lord Balfour, then British foreign secretary, that Britain should sponsor a Jewish state in Palestine because the Jews could civilize the country and guard the Suez Canal.(43) By 1917 Weizmann had convinced Balfour to propose a policy statement(44) to the British cabinet supporting Zionism. The statement was approved, and Balfour wrote a famous letter to Lord Rothschild known as the Balfour Declaration, stating:

      [Britain] viewed with favor the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.(45) Pursuant to the Balfour Declaration, the British government made promises to both the Zionists and the Palestinian Arabs, sowing the seeds of prolonged conflict in Palestine.(46)...