Israel should be held responsible, not only for preventing the
return of the Palestinian refugees to their homes, but also for the
violation of their property rights and privileges, which are
stipulated by United Nations resolutions - in particular, General
Assembly Resolution 194 (III) - and other international
rulings.
By the end of the war in1949 and the conclusion of the Armistice
agreements with the Arab governments (separately with Jordan, Egypt
and Syria), 20,418,000 dunums* of land were controlled by Israel;
5,555,000 dunums by Jordan; and 350,000 dunums by Egypt.
Hundreds of Palestinian villages, towns, cities and neighborhoods
were emptied of their native residents and taken over by the
Israelis. According to Prof. Don Peretz, the Arabs left whole
cities, including Jaffa, Acre, Lydda, Ramle, Beisan and al-Majdal;
388 towns and villages; and large parts of 94 other cities and
towns; containing almost a quarter of all buildings then in Israel.
Tens of thousands of shops, businesses and stores were left in
Jewish hands.1
The Office for the Identification and Valuation of the Arab Refugee
Property, which worked from 1954 to 1964 under the authority of the
UN Conciliation Committee for Palestine (UNCCP) to identify and
valuate these properties, indicated that, of the 20,418,000 dunums
of land that fell under Israeli control, 7,482,000 were owned by
Arabs; 1,476,000 were owned by Jews; 105,000 owned by others; and
11,355,000 dunums were considered public and Beersheba sub-district
property.
After the identification of these properties - excluding the
Beersheba area - the Office recorded 7,874,419 dunums of land (the
main fertile land), of which 5,194,091 dunums belonged to Arabs and
the remaining 2,680,328 dunums belonged to public entities,
including Arab villages; Arab public institutions; governmental
institutions; and Jewish and other non-Arab owners.2
As regards immovable property, in 1949, Israel reported - in a
partial count - that 73,000 dwellings and 7,800 premises, such as
warehouses, workshops, shops and offices were under the Custodian
of Absentee Property's control. Most of them were situated in
Jaffa, Haifa, Jerusalem, Beersheba, al-Majdal, Ramle, Lydda, Acre,
Beisan, Tiberias and Safed, and in the vicinity of the orange
groves.3
The Fate of the Refugees' Property
According to Israeli sources quoted by Peretz, it appears that by
May 1948, local Israeli military authorities had often failed to
restrain the mass looting, destruction and pillage of Palestinian
properties. He quotes a 1949 statement by Dov Shafrir, the
Custodian of Absentee Property, to the Knesset Finance Committee as
saying that the Yishuv (the Jewish community) was placed "before
serious material temptation" by the great quantities of abandoned
Arab property, and that action to save Arab property and to prevent
"many individuals and institutions from moral degeneration was not
forthcoming."4
The case of the city of Jaffa was only one example of the mass
looting by organized and non-organized Jewish groups. According to
one source, as soon as the city was occupied, "everything that was
movable was carried off from Jaffa: furniture, carpets, pictures,
crockery, and cutlery. Not content with looting, the Jewish
fighters smashed or destroyed everything which they could not carry
off, including pianos, lamps and widows-panes." David Ben-Gurion
(the first Israeli prime minister) later admitted that Jews of all
classes poured into Jaffa from Tel Aviv in order to take part in
what he called "a shameful and distressing spectacle."
Ilan Pappe, in his book The Ethnic Cleansing of Palestine, quotes a
July1948 report by the military governor of Jaffa to Ben-Gurion,
which states the following:
As for your demand, sir, that I will make sure "that all the
commodities required by our army, air force and navy will be handed
over to the people in charge and taken out of Jaffa as fast as
possible," I can inform you that as of 15 May, 1948 an average load
of 100 trucks a day is taken out of Jaffa. The port is ready for
operation. The storehouses were emptied, and the goods were taken
out.5
During the same period, then-Minister of Agriculture Aharon Cizling
wrote to Ben-Gurion:
…[E]veryone expresses shock, bitterness and shame, but we
have yet to find a solution … there are more and more reports
about acts which, judging by their nature and extent could only
have been carried out by [government] order…. If there is any
foundation to the reports which have reached me; the responsibility
rests with a government agency… Meanwhile, the private
plundering still goes on, too.6
Emergency Regulations on Absentee Property
In an attempt to "organize" the looting, on December 2, 1948, the
Israeli government declared the enactment of the Emergency
Regulations on Property of Absentees, generally referred to as the
Absentee Property Act. Accordingly, the government established the
Custodian of Absentee Property, a division within the Finance
Ministry, to take charge of the refugees' property. These
regulations reclassified most abandoned Arab property as absentee
and, in effect, they prevented the return of any of their
Palestinian owners.
Absentee Property law
It was only on March 1950 that the Knesset (the Israeli parliament)
approved the Absentee Property Law, which also stipulated the
creation of the Development Authority (Transfer of Property) Law
5710-1950 and was put into effect on August 9, 1950. Generally
speaking, the new law legalized the de facto situation that grew
out of the wartime abuses of the abandoned Arab property. While the
task of the Custodian of Absentee Property was, above all, to
administer and to preserve the absentee property, the Development
Authority was authorized to take measures to dispose of that
property. It was authorized to sell land to the government, to the
Jewish National Fund (JNF) and to other public agencies. The new
law divided the properties held by the Authority into two
categories. The first, called "land transferable to the public,"
comprised all non-urban land as was designated for immigrants'
housing, popular housing and various development schemes. The
second category covered all other urban land.7
The Israeli Land Administration
In 1960, the Knesset passed a Law establishing the Israel Land
Administration (ILA) as the government agency to manage Israel's
land considered "public domain" and comprising 93% of the land
under Israeli control.
On the same day the Knesset approved the Israeli Basic Land Law,
which specified the exceptions to the Land Administration Law,
including the activities of the Development Authority. These laws
meant, among other things, that all the lands and properties
belonging to the Palestinian refugees had been transferred to the
state of Israel as the sole owner, regardless of their use and who
is using them, and that, except for exceptional cases, they could
not be sold or transferred to others.8
After its establishment, the ILA continued with the leasing of
these properties, whether to the de facto occupiers/users or to new
lessees, including Jewish settlements and neighborhoods. For years,
the ILA held discussions regarding the refugee property. From the
Palestinian refugees' perspective, these debates were an extension
of the continuous efforts by various Israeli officials and public
figures to legalize the appropriation of the refugees' properties
through the transfer of their ownership to Jewish individuals and
groups.
A review of the policies and practices of the ILA, particularly
since the late 1990s and through 2007, shows that efforts were made
to transfer ownership and titles of properties in cities,
especially mixed cities, to the de facto Jewish tenants of houses
belonging to Arab refugees. This has, of course, intensified real
estate transactions and raised the market value of the refugees'
houses, particularly in Jerusalem and Jaffa, to record prices of
millions of dollars per house. The refugees' houses in Talbiyeh,
Qatamon and other former Arab neighborhoods of West Jerusalem, and
Jaffa's neighborhoods of Al-'ajami, Jabalieh and the Old City are
being grabbed by Jewish millionaires, often American
citizens.
In addition, the ILA has gradually increased the allocation of
agricultural land (including the refugees' land), which was leased
or grabbed by Jewish farmers for the construction of residential
and commercial dwellings. This move of transferring refugee land to
private and commercial ownership has brought millions of dollars to
Israeli farmers who never paid for or legally purchased these
lands. In other words, the refugees' dwellings and lands have
generated vast amounts of income and revenues illegally
earned.9
Violation of UN Resolutions Regarding Refugee
Property
The granting of a title of ownership of the Palestinian refugees'
property to private and Jewish institutions should be considered an
illegal act, in violation of Paragraph 11 of UN General Assembly
Resolution 194 (III) and against the commitment of the state of
Israel to administer these properties until a solution to the
refugee problem is found. This act also violates the refugees'
right to claim the revenues and proceedings generated by these
properties, which Israel should pay the refugees or place in a fund
on their behalf.
Paragraph 11 of Resolution 194 was adopted by the General Assembly,
based on the September 1948 report of Count Folke Bernadotte, the
peace mediator in Palestine, who noted inter alia that:
[t]he liability of the Provisional Government of Israel to restore
private property to its Arab owners and to indemnify those owners
for property wantonly destroyed is clear, irrespective of any
indemnities, which the Provisional Government may claim from the
Arab States.10
A day after the admission of Israel to the United Nations on May
11, 1949, the Israeli representative to the UN signed a protocol
with the UNCCP, which accepts Resolution 194 (III) regarding the
Palestinian refugees, including "the respect for their rights and
preservation of their property…."11
As a condition for admitting Israel to the UN, the General Assembly
in its Resolution 273 (III) of May 11, 1949 clearly referred to
Resolutions 181 (II) of November 29, 1947 and 194 (III) of December
11, 1948 before deciding that "Israel is a peace-loving State which
accepts the obligations contained in the charter and is able and
willing to carry out those obligations."
In response to Israel's enactment of the Emergency Regulations on
Absentee Property, on April 11, 1949, the UNCCP handed the Israeli
representative, Walter Eytan, a request to suspend the application
of the law "until the final peace settlement, and the placing of
refugee property in the category of 'enemy property' under
custodian." Israel's reply came on May 6, 1949 through Eytan to the
effect that "the custodian acts as trustee for the absentee owners,
whose property is administered in their interest…."12
Israel, in reality, had never intended to implement the UN
resolutions and decisions to preserve the status quo of these
properties. It was clear from a letter by Israel's ambassador to
the UN, Abba Eban, on July 7, 1953 to the UNCCP that the
government's declared policy on the question of compensation is not
affected by any "internal arrangements which might be made for
dealing with the property according to the laws of Israel." And, in
another letter (October 1953), Eban admitted that funds realized in
consideration for the property were treated in accordance with the
provisions of Section 4(a) of the Absentee Property Law and the
counter value was credited to use property for which it has been
received.13
This Israeli policy and practice went counter to UN resolutions and
were accepted neither by the UNCCP nor by the General Assembly.
Consequently, in its Resolution 36/146 C of December 16, 1981, the
General Assembly requested, with a majority vote, "the
Secretary-General to take all appropriate steps, in consultation
with the United Nations Conciliation Commission for Palestine, for
the protection and administration of Arab property, assets and
property rights in Israel, and to establish a fund for the receipt
of income derived there, on behalf of their rightful owners." This
resolution has been re-affirmed since 1981 by the General Assembly
in every annual session. However, Israel continues to reject the
implementation of this and other UN resolutions concerning the
Palestinian refugee property.
In addition to the violation of UN resolutions, Israel's repeated
claim that the refugee property is being dealt with in accordance
with Israeli laws is invalid and would be rejected by the
International Court of Justice (ICJ). On various occasions, the ICJ
invoked the fundamental principle of international law, which says
that "international law prevails over domestic law." This
principle, according to the ICJ, was endorsed by a judicial
decision "as long ago as the arbitral award of September 14, 1872
in the Alabama case between Great Britain and the United States,
and has frequently been recalled since…."14
In conclusion, since the Israeli Palestinian "peace" negotiations
seem to be going nowhere in the near future, it would be useful for
the Palestinians to reactivate the UNCCP and to exert UN and
international pressure on Israel for the purpose of making it
participate in financing projects for the benefit of the refugees,
using a significant part of the revenues generated from their
property in Israel.
Endnotes
1. The work of Prof. Don Peretz on Palestinian losses was presented
in Information Paper Number 3 of The Center for Policy Analysis on
Palestine, published in Washington D.C., 1995 under the title
"Palestinian Refugee Compensation."
2. The work of the Office for Identification and Valuation was
published in a working paper prepared by the UNCCP's land expert on
the methods and techniques of identification and valuation of Arab
refugee immovable property holdings in Israel, and submitted by the
Commission to the UN General Assembly on April 28, 1964
(A/AC.25/W.84).
3. Figures of the Israeli Custodian of Absentee Property were
presented and analyzed in the UNCCP secretariat working papers W/52
and W/58.
4. See Issa Nakhleh, Encyclopedia of the Palestine Problem, Volume
1 (New York: International Books, 1991), p.253.
5. See Chapter 9 in Ilan Pappe's The Ethnic Cleansing of Palestine
(Oxford: Oneworld Publications, 2007).
6. Letter from Aharon Cizling to David Ben-Gurion, 6.16.48, in
State Archives, Foreign Ministry, 2401/21/A.
7. The Absentee Property Act was translated and published on March
2, 1949, by the Secretariat of the United Nations Conciliation
Commission for Palestine in Working Paper W/10, The Development
Authority Law
8. The land Basic Law-1960 was published in the official
publication S.H. Number 312, p. 56. The Israeli Land Law-1960 was
published officially on July 29, 1960, in S.H. Number 312, p.
56.
9. The decision of the chairman of the Land Counsel to grand
ownership to lessees and launch the campaign to encourage lessees
to apply for ownership, were published by the ILA in its official
publication. All these publications, including the above-mentioned
laws, can be found on the ILA site .
10. Document A/648 of GA, submitted to the UN secretary-general for
transmission to the members of the United Nations, September 16,
1948.
11. Lausanne on May 12, 1949, Annex B of UN document
A/AC.25/W.82/Rev.1.12. See GA document A/AC.25/W.82/Rev.1 Part One,
II.
13. See UNCCP document: COM.GEN/W.2, June 21, 1949.
14. See GA Resolution 42/229 of March 2, 1988.
