Rights of Pre-1967 Jews in the OPT
To: Palestinian Negotiating Team
From: Negotiations Support Unit, Settlements File
Subject: Rights of Jews within the OPT acquired pre-1967
Date: XX September 2008
The purpose of this memo is to outline options for dealing with property claims of Jews within the Occupied Palestinian Territory (OPT) acquired before the beginning of the occupation.
1. ISSUE
Property transactions benefiting Israel or its nationals that took place in the OPT during the occupation are invalid. This is because they violated the international humanitarian rules on property transactions, as well as the applicable local (Jordanian) laws, and were part of Israel?s illegal colonization enterprise. The future government of Palestine is therefore not required by international law to honour these transactions or the titles, rights or interests purportedly acquired through them (See NSU, Property Transactions in the Occupied Palestinian Territory Legal Brief, September 2008).
However, these titles, rights and interests are to be distinguished from those acquired by Jews before the beginning of the occupation. The latter are, in principle, legitimate rights that exist under international law and that Israel is likely to claim from Palestinians in the negotiations. Palestinian negotiators will need a strategy for dealing with these pre-1967 Jews? rights.
1. BACKGROUND
Before 1948, Jews, albeit a small minority, resided in and/or owned property in accordance with international and local laws in the areas that later became the OPT. Annex 1 provides details about who these Jews were, while Annex II provides details about where they lived and/or owned property.
After the 1948 war, as a matter of international law, Egypt and Jordan occupied Gaza and the West Bank respectively. Both Egypt and Jordan appointed custodians in whom vested the properties of the Jews who fled in 1948 (See Annex I for details).1
After the 1967 war, Israel occupied both Gaza and the West Bank. In the areas Israel unilaterally annexed around Jerusalem, the Israeli Administrator-General was charged with managing and returning Jewish property that had been held by the Jordanian Custodian to its original owners. By the mid-1990s, the Administrator-General still held and administered property belonging to Jews in East Jerusalem.2 In most other cases, the original Jewish owners had to make do with monetary compensation in lieu of the property. In the remainder of the OPT, the Israeli Custodian in the West Bank and the Israeli Commissioner in Gaza were authorised to restore property to their original Jewish owners, but the Israeli authorities' practice has been not to release this property, but to continue administering it (See Annex I for details).
1. LEGAL ANALYSIS
1. Rights of Jews pre-1967
Jews who lived in and/or owned property in what became the OPT and who were subsequently displaced and/or dispossessed of their property are entitled to remedies for their losses under international law. They are in fact in a very similar position to that of Palestinians who were displaced and dispossessed in what became Israel.
1. Nationality / Residency rights
Jews who were habitually resident before 1948 in the areas that became the OPT enjoy a right of return. It should be noted that the right of return extends not only to those persons who held the nationality of the prior sovereign, but also to persons who had a substantial connection to the prior state and who, therefore, were entitled to its nationality.3 The right also extends to the descendents of such Jews.
Furthermore, the right of return is separate and distinct from any property right the holder may also enjoy.4 That is, a person may have a right of return even if he does not own property in the home country. Conversely, a person may not necessarily enjoy a right of return even if he owns property in the country.
As of 1948, there were 500,000 to 600,000 Jews in Palestine. Most of them were not nationals of Palestine. Of the 400,000 or so Jews who immigrated to Palestine between the two World Wars, 100,000 were naturalized. So, probably fewer than half of pre-1948 Jews were nationals, but most were probably permanent residents.5 According to international law, Such Jewish Palestinian nationals or permanent residents have a right of residency in the future Palestinian state if they were residents of the areas that became Gaza and the WB.
1. Property Rights
Jews who owned land have the right to have their land restored to them or to be compensated, if restitution is not materially possible. Jews are entitled to compensation for other material and non-material losses, including lost profits, lost income, etc. caused by their displacement and dispossession.
1. Succession of Responsibilities
While the initial displacement and dispossession of Jews pre-1948 was the result of a war with, and, later, the policies of, Jordan and Egypt, Palestine, as the successor state, will be responsible for providing remedies for some of the losses sustained by the Jews to the extent that the substance of the loss is within Palestine?s control. Specifically, if asked, Palestine will be under an obligation to allow the return of the Jews who were displaced, and to restore Jewish property that is located within Palestine or compensate Jewish owners for the loss of this property. Palestine would not be responsible for compensating Jews for other material losses, like lost profits or income, or for non-material losses; these would be required from Egypt and Jordan.
As mentioned above, in spite of Israel's recognition of the right of pre-1948 Jewish owners to regain the property they left in East Jerusalem, most of them had to make do with monetary compensation in lieu of the property. With regard to Jewish property in Gaza and the rest of the West Bank, the Israeli authorities' practice has been not to release the property, but to continue administering it. To some extent, then, Israel has addressed the rights of Jews dispossessed in 1948 by recognising their right of repossession and compensating them when it expropriated their properties. To the extent that Israel has done so, the future Palestinian state is therefore relieved of the responsibility. However, under international law, the right of displaced persons to return to their country is not defeated by an offer of compensation, so those rights of displaced Jews may survive, and Palestine may be obligated to implement the right of return that Israel did not.6
1. POLICY OPTIONS
1. Recognize pre-1967 Jews? rights
As pre-1948 Jews? rights are an issue of importance to Israel ? not Palestinians - Palestinian negotiators may wish to wait for Israel to raise it in negotiations, rather than raise it themselves. Once Israel does so, Palestinian negotiators could opt to recognise pre-1948 Jews? rights and, in so doing, try to leverage them to secure a better outcome for displaced and dispossessed Palestinians on the basis of reciprocity. Pre-1948 Jews could bring pressure to bear upon Israel to secure restitution or, in its absence, full compensation. In this way, Israel would have a stake in ensuring appropriate remedies and an appropriate mechanism for the resolution of the Palestinian refugee issue. However, if the number of affected Jews is small, then the pressure brought to bear upon Israel may be insufficient to have any actual impact on Israel?s negotiating position.
1. Pre-emptively recognize pre-1967 Jews? rights
If the Palestinian leadership were to pre-empt Israel?s raising of this matter with a unilateral announcement of its recognition of pre-1948 Jews? rights, in addition to the advantages of Option A, such a move might step up international pressure on Israel to recognize and appropriately remedy Palestinian refugee and property rights. However, if this move fails to do so, it would be difficult for Palestinian negotiators to retreat from the position already taken. In practice, this is likely to mean that Palestinian negotiators would be denying themselves the option of not recognizing pre-1948 Jews? rights (Option C) and would be facing having to negotiate compensation for the pre-1948 Jews.
1. Don?t recognize pre-1967 Jews? rights
A third option is for Palestinians to wait to see how negotiations on Palestinian refugees progress and, in the event that they do not progress well, to not recognize pre-1948 Jews? rights. Annex 3 provides legal arguments to support this position.7 However, the likelihood is that Israel will offer compensation, albeit nominal, to Palestinian refugees, in which case, Palestinian negotiators will be hard-pressed not to reciprocate.
In its consideration of this policy matter, the Palestinian leadership should be sensitive to the fact that a recognition by it of pre-1948 Jews? rights in the OPT may serve as a precedent for other Arab states, who may not respond well to it and who may allow it to affect their support for Palestinians.
ANNEX 1
Who is a Lawful Jewish Property Owner?
Property transactions in favour of Israel or its nationals that took place in the OPT during the occupation are invalid. However, some Jews, albeit a very small minority, held property titles, rights and interests in accordance with international and local laws from before the beginning of the occupation. Determining who lawfully owned property before 1967 requires an analysis of the local laws applicable at the time.
Summary
Based on the applicable local laws in the OPT, described in the next section, a Jew was a lawful landowner in the following circumstances:
Natural Persons
Legal Persons
Date
National
Foreign National
National
Foreign National
< 1913
Yes, if an Ottoman national
No
No
No
1913-1918
Yes, if an Ottoman national
No
Yes, if an Ottoman national
No
1920
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
1921
Yes
Yes
Yes
Yes
Before 1913, a landowner was a natural person who was an Ottoman national.
Between 1913 and 1918, a landowner was a natural or legal person who was an Ottoman national.
In 1920, a land purchaser was a natural or legal person who was resident in Palestine, irrespective of his nationality. However, he could only acquire property L3,000 or less in value or 300 dunums or less in area, and he had to immediately cultivate the land. In 1921, these restrictions were removed, including the residency requirement.
It is unclear whether, after that, there were any restrictions on natural persons. In 1921, only a company of public utility could purchase land for land development or in quantities greater than those required for its works. In 1920, the JNF was registered as a company of public utility. In 1924, the PJCA was declared to be a company of public utility.
Between 1940 and 1948, with few exceptions, land could only be transferred to Palestinian Arabs. It appears that these restrictions were removed in 1948.
In 1953, non-Jordanians were prohibited from owning land in the West Bank except in built-up areas and with the permission of the Council of Ministers. Furthermore, non-Jordanians were prohibited from leasing West Bank land for longer than 3 years without the approval of the Council of Ministers. In 1960, the restrictions were tightened, such that non-Jordanians were prohibited from owning land except in built-up areas and in quantities sufficient for their housing and work administration (not for trading), and except agricultural land that falls within lands under his control/administration. In 1962, the restrictions were relaxed, such that Arab non-nationals who used to have Palestinian or Jordanian citizenship could own land outside municipal boundaries to the extent necessary for their construction or agricultural works, with approval from the Council of Ministers. Furthermore, non-Jordanian Arabs could own land outside municipal boundaries to the extent sufficient for their residence and business management, with approval of the Council of Ministers. None of these rules retroactively altered foreign land ownership.
Similarly, in 1953, foreign companies were prohibited from acquiring land except to the extent necessary for their businesses, which could not be for possession or trading in them, upon approval of the Council of Ministers. In 1957, the restrictions were tightened, such that foreign companies could only acquire land in cities and villages. However, the amendment still allowed foreign companies to acquire land outside cities and villages if the public interest so required.8 In 1965, another amendment restricted even further land acquisition, such that companies, whether foreign or local, could not acquire property in the Old City of Jerusalem and could acquire property in the rest of the Jerusalem Governorate only if the public interest so required and with approval of a committee. None of these rules retroactively altered foreign land ownership.
In Gaza, no applicable law on property matters distinguished on the basis of race, ethnicity or national origin.
1. Analysis: Local Legal Framework
1. During the Ottoman period (before 1918)
Under Ottoman law, foreigners, whether natural or legal persons, were not permitted to own property.
Furthermore, before 1913, a corporation was not a legally defined entity under Ottoman law. Consequently, corporations intent on bringing about Jewish national ownership of the land in Palestine, such as the Jewish National Fund9 (JNF) and the Palestine Land Development ompany, Ltd.10 (PLDC), could not register land in their names.11 Instead, they would arrange to have natural persons who were Ottoman nationals register title in their names.12
In 1913, the Ottoman Law of 22nd Rabie El-Awal, 1331 A.H. was passed, enabling corporations to own land.13 However, it appears that the prohibition against foreigners purchasing land was not lifted. As the JNF and the PLDC were both incorporated in Britain and did not register as Palestinian companies during this period,14 it appears likely that they continued with the practice of using natural persons who were Ottoman nationals to purchase land on their behalf.15
1. During the British mandate (1918-1948)
Under the Ordinance to regulate the Transfer of Land (Transfer of Land Ordinance), 1920, a land registry was created. The district governor would consent to a land transfer only if the person taking title (1) was resident in Palestine, irrespective of his nationality; (2) would not acquire property exceeding L3,000 in value or 300 dunums in area; and (3) would immediately cultivate such land.16 In 1921, the Ordinance was amended to remove the three restrictions, though the government still had to approve any land transfer.17
These restrictions on land transfer apparently never applied to companies of public utility, including the JNF and the Palestine Jewish Colonization Association (PJCA).18 Under the Companies Ordinance, 1921-25, any association or partnership of ten or more members carrying on business in Palestine had to be registered with the Registrar.19 Further, the Registrar would not register any company formed for the purpose of land development or which had the objective of holding more land than was needed for its enterprise, plant and works, unless such company produced a certificate from the High Commissioner certifying that it had purposes of public utility.20 In 1920, the JNF was registered as a company of public utility.21 In 1924, the Palestine Jewish Colonization Association (Edmond de Rothschild Foundation) Ordinance, 1924 declared the PJCA to have a purpose of public utility, which apparently substituted for the High Commissioner?s certification as required by the Companies Ordinance.22
In 1940, in response to Arab concerns regarding Jewish land ownership in Palestine, the British introduced restrictions on land transfers to Jews. Pursuant to the Palestine (Amendment) Order-in-Council of 25 May 1939, the High Commissioner was authorized to prohibit and regulate land transfers.23 Acting on these powers, the High Commissioner adopted the Land Transfer Regulations, 1940, which established three zones: Zone A (16,680 km2), where land could generally not be transferred except to Palestinian Arabs; Zone B (8,348 km2), where land transfers from Arabs to Jews required permission that was generally withheld; and land outside Zones A and B (1, 292 km2), which could be freely transferred.24 According to the hand-drawn map annexed to the Regulations, what became Gaza and the West Bank was entirely Zone A, meaning that land transfers to Jews were, with few exceptions, prohibited.25 Britain apparently repealed these Regulations upon the termination of its Mandate (12 May 1948).26
1. West Bank under Jordanian rule (1948-1967)
1. Acquisitions by Jews between 1948-1967
Shortly after Jordan assumed power in the West Bank, it introduced restrictions on foreign land ownership. The Law for the Lease and Sale of Immovable Properties to Foreigners, No. 40 of 1953 required permission for a non-Jordanian to lease land for longer than a three-year period.27 It also restricted a non-Jordanian from owning land, except in municipal areas or town planning areas and with the permission of the Council of Ministers.28 Law No. 12 of 1960 tightened the restrictions, such that non-Jordanians were prohibited from owning land except in municipal areas or town planning areas in built-up areas and in quantities sufficient for their housing and work administration (not for trading), and except agricultural land that falls within lands under their control/administration.29 Law No. 2 of 1962 relaxed the restrictions, such that Arab non-nationals who used to have Palestinian or Jordanian citizenship could own land outside municipal boundaries to the extent necessary for their construction or agricultural works, with approval from the Council of Ministers.30 Furthermore, non-Jordanian Arabs could own land outside municipal boundaries to the extent sufficient for their residence and business management, with approval of the Council of Ministers.31 None of these rules retroactively altered foreign land ownership.
The Law Concerning the Possession and Use of Immovable Property by Juridical Persons, No. 61 of 1953 prohibited foreign companies from acquiring ownership or possession of land except to the extent necessary for their businesses, which could not be for possession or trading in them, upon approval of the Council of Ministers.32 Law No. 4 of 1957 tightened the restrictions, adding that foreign companies could only acquire land in cities and villages.33 However, the amendment still allowed foreign companies to acquire land outside cities and villages if the public interest so required.34 Law No. 4 of 1965 restricted land acquisition even further, such that companies, whether foreign or local, could not acquire property in the Old City of Jerusalem and could acquire property in the rest of the Jerusalem Governorate only if the public interest so required.35 Like Law No. 40 of 1953, this law was prospective, so it did not deprive the JNF of land purchased before 1948.36
1. Properties owned by Jews by 1948
In August 1950, the Jordanian General Administrative Governor of the West Bank issued A Proclamation Aiming to Prevent the Crossing of Borders between the Arab Areas and Jewish Areas in Palestine, and Prohibition of Trading and Dealing with the Enemy No. (55) of 1950. This Proclamation provided that residents of the State of Israel (including its Arab citizens) would be considered enemies in relation to the laws regarding trading with the enemy.37 Relying on the Trading with the Enemy Ordinance, 1939 and on the Proclamation, the Jordanian Minister of Interior appointed the Custodian of Enemy Property and vested in him, through a multitude of specific and general vesting orders, the property of Israelis in the West Bank.
The Custodian held and administered Jewish-owned in the West Bank until 1967 according to the Trading with the Enemy Ordinance (as opposed to administering the land like absentee property according to the powers and rules of IHL).38 Some of these assets were used by the Custodian for public purposes, such as the
establishment of refugee camps, the rehabilitation of refugees, and the setting up of army camps and marketplaces. In other cases, the property was leased to private individuals, who used the land for agricultural, commercial or residential purposes, depending on its characteristics.39
1. Gaza under Egyptian rule (1948-1967)
In Gaza, no law applicable to property matters distinguished in property ownership on the basis of race, ethnicity or national origin.40
By the Order Providing Regulations for the Administration of Jews? Property in the Areas Subject to the Control of the Egyptian Forces in Palestine, No. 25 (issued in 1948, published in 1950), Egypt appointed a Director General to administer property owned by Jews who fled in 1948. The Director General used the parcels for public projects, including refugee camps for Palestine Arabs, or leased them for private uses.41
1. Under Israeli occupation (after 1967)
1. Jewish property in East Jerusalem
After 1967, Israel adopted the Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970, which charged the Israeli Administrator-General with the task of managing and returning Jewish property that had been held by the Jordanian Custodian of Enemy Property to its original owners. Under the Law, the Administrator-General is mandated to release the property to its original owners, and has no discretion in this regard.42 Still, the release requires a certificate signed by
the Administrator-General and is executed only after locating the property and exploring all the matters pertinent to its legal status and the status of the claims to it. By the mid-1990s, the process had not been completed, and the Administrator-General still held and administered property belonging to Jews in East Jerusalem.43
In spite of the Law's recognition of the right of the original Israeli owners to regain the property they left in East Jerusalem, most of them had to make do with monetary compensation in lieu of the property. The reason was that numerous plots of land in East Jerusalem were expropriated to build new residential neighbourhoods and to restore the Jewish quarter in the Old City. The compensation for Israelis' property not yet released to its original owners was entrusted to the Administrator-General, to be kept for the original owners.44
1. Jewish property in the West Bank and Gaza
In 1967, Israel appointed a custodian to oversee the property under the custody of the Jordanian Custodian of Enemy Property pursuant to the Order concerning Absentees? Property, No. 58, 1967.45 Similarly, by the Order concerning Jews? Property (the Gaza Strip and North Sinai), No. 78, 1967, Israel appointed a Commissioner of Jews? Property to assume the role of the Egyptian Director General.
The Custodian/ Commissioner was legally authorised to restore property to its Jewish owners, but the Israeli authorities' practice in the West Bank and Gaza has been not to release property, but to continue administering it. This property has occasionally been used for Israeli settlements in the OPT. At times, willingness was also expressed to take into consideration the injury to the original owners by allocating alternative lands for their use at a low rent. However, the policy of not releasing the property to its original owners and continuing its administration by the authorities has been strictly observed.46
Attempts made by Israeli citizens to have their rights to such property restored have failed,47 and such property has remained in the possession and management of the Custodian of Government Property.
1. Under Oslo
Israel and the PLO agreed in the Interim Agreement that [t]he Palestinian side shall respect the legal rights of Israelis (including corporations owned by Israelis) related to Government and Absentee land located in the areas under the territorial jurisdiction of the Council.48 Pursuant to the Agreement, settlements and specified military locations, presumably including any Jewish-owned lands located therein, fall outside the jurisdiction of the Council and are issues for final status negotiations.49 Thus, through these provisions, Israel secured Palestinian agreement not to alter or otherwise interfere with the property rights of Jews in the OPT until permanent status negotiations.
ANNEX 2
Where are the lands of lawful Jewish land owners located?
Before 1922
Little land was purchased by Jews during the Ottoman period in Gaza and the West Bank.50
One important exception was land located on Mount Scopus, which was purchased from a British national in 1916. Boris Goldberg, a member of Lovers of Zion, paid for the land and took title in his name.51 He gifted the land to the JNF, which gave a 999-year lease to Hebrew University.52 Additional land was purchased on Mount Scopus from Raghib al-Nashashibi, Mayor of Jerusalem, and was used for the Hebrew University. Hadassah Hospital was also built on land purchased on Mount Scopus.53
1. 1922-1948
During the British mandate, most land purchases were concluded by the JNF, the PLDC and the PJCA. Other purchases were concluded by individuals and real estate companies.54
Land purchased by the PLDC was transferred to the JNF. The JNF in turn leased (but did not sell) land to individual Jews. Thus, any Jew who lived on JNF land before 1948 would not have held title. However, it seems that the JNF may have sold some land to private companies. Granovsky provides the example of a 1935 partnership between the JNF and Africa-Palestine Investments, Ltd. whereby the JNF purchased 7,000 dunums, keeping 4,000 and transferring 3,000 to Africa-Palestine Investments, Ltd.55
In the case of the PJCA, it sold some of its land to individual Jews under long instalment plans, or granted long-term leases.56 Thus, some PJCA land may have never been sold and thus remained in its ownership, some may have been leased and thus remained in its ownership, and some may have been sold but the instalment payments not made in full.57
In Gaza, the JNF did not purchase any major parcels of land. By 1946, the JNF acquired 72,300 dunums in the Gaza district, which encompassed more than present-day Gaza.58
In 1930, a Jewish farmer from Rehovot, Tuvia Miller, bought 262 dunums of land in Dayr al-Balah in the Gaza sub-district. Miller eventually sold his land to the JNF in the early 1940s. The JNF then allowed settlers from the religious Ha-Poel ha-Mizrahi movement to build the kibbutz of Kfar Darom on the land in October 1946. They abandoned the kibbutz in June 1948.59
Stein reports a purchase of 4,048 dunums in Huj (Gaza sub-district) in 1935 but does not indicate the identity of the Jewish purchaser.60 Note, however, that the Palestine Partition Commission reported that, by 1938, only 3,300 dunums in Gaza were owned by Jews.61
In 1941, 6,373 dunums were purchased by the JNF around Gaza City, though it is unknown whether the purchase was permissible under the Land Transfer Regulations 1940.62
The government of Palestine estimated a population of 3,540 Jews in the Gaza sub-district at the end of 1946. Information has not been found on the circumstances under which these Jews departed from Gaza in 1948.63
In the case of the West Bank, Shehadeh gives a figure of 30,000 dunums owned by Jews by 1948. During the 1920s and 1930s, the JNF did not seek land in the West Bank because it was not close to other tracts of land it had already purchased and because the West Bank was not as suitable for agriculture. The only substantial parcels purchased or leased in the West Bank were in or around Jerusalem.64
There were Jewish settlements north of Jerusalem called Atarot and Neve Yaakov, which were evacuated in 1948.65
A settlement called Bet Haarava, and Palestine Potash, Ltd., both located at the northern end of the Dead Sea, were situated on miri land leased by the government of Palestine and were evacuated in 1948.66
During the 1920s and 1930s, individual Jews and two Jewish-owned realty companies, Zikhron David and El Hahar, bought land in the hills around Hebron.67 Notwithstanding (and, actually, because of) the Land Transfer Regulations, 1940, which placed nearly all of the West Bank in Zone A, the JNF began purchasing land around Hebron in 1940. It acquired about 8,400 dunums by 1947, some of which was purchased from individual Jews and from Zikhron David and El Hahar. The settlements established on this land were called Kfar Etzion, Masuot Yitzhak, Ein Tzurim and Revadim. The JNF circumvented the prohibition on acquisition of land by Jews by creating front companies. Most of the Jewish-owned land around Hebron was held, as of 1948, by the JNF rather than by individual Jewish owners.68
Some 16,000 dunums of land were purchased by Jews before 1948 in the Etzion Bloc and Beit Hadassah.69
Himnuta bought land near Jericho and present-day Ma?ale Adumim. The funding in urban areas usually came from state coffers, while the purchase of agricultural land was paid for by the JNF.70
During the British mandate, the government of Palestine leased miri land on a long-term basis (50 or 100 years) to Jewish settlement organisations.71
By 1948, the concentrations of lands owned by Jews were in the old Jewish quarters of Jerusalem and Hebron, on the periphery of Jerusalem, and in the Tul-Karem region and the Gaza Strip.72
* Apparently, 80% of Har Homa?s [Jabal Abu Ghneim?s] land is Jewish land purchased in the forties and before.73
1. 1948-1967
As far as can be determined, no land was bought by Jews in Gaza or the West Bank between 1948 and 1967.74
1. After 1967
In 1967, the Israeli government allowed settlers from the four Hebron settlements to return there. The claim of ownership to these lands is that of the JNF. The settlers or their descendents have a right of repatriation only.75
Information has not been found on whether post-1967 settlements were established on land in Gaza that at some time was owned by Jews.76 Most of these were inhabited, though some Jews were forced to leave during the 1920s and 1930s. Similarly, several thousand, mainly from the Jewish quarter of Jerusalem and the Gush Etzion settlements were displaced in 1948.77
* The JNF lost land in the Dheisheh refugee camp in the West Bank as well, and this matter has been postponed for the eventual [peace] talks for over a decade.78
ANNEX 3
Legal Arguments against Claims of Nationality and Property Rights of Jews pre-1948
1. Israel?s violation of the corresponding rights of Palestinians. Since 1948, Israel has violated its obligation to extend nationality to Palestinians displaced from the territory over which Israel gained control. Under international law, a state may violate rights of another state as a counter-measure to a violation by the latter of the former?s rights. However, a state is not permitted to violate human rights as a counter-measure. Thus, the fact that Israel has failed to recognise the property, nationality and residency rights of displaced Palestinians does not justify a future Palestine?s violation of the property, nationality and residency rights of displaced Jews.79
Moreover, respecting the property, nationality and residency rights of displaced Jews would have the strategic political purpose of exerting pressure on Israel to act similarly in regard to displaced Palestinians.
1. Displaced Jews? Israeli nationality. A displaced national or permanent resident who voluntarily acquires a new nationality loses his right of return. Any Jew who resided in Gaza/WB before 1948 and subsequently acquired Israeli nationality may be said to lose his right of return to his pre-1948 residence. However, such a displaced Jew may not forfeit his Palestinian nationality or residency right if he was denied the right of return by Jordan or Egypt, or did not return because the circumstances of conflict made return unfeasible. In those events, the acquisition of Israeli nationality was not a matter of free will but a way of gaining some protection pending the possibility of restoration of the prior nationality.80
1. Recent arrival of displaced Jews. The right of return is ordinarily invoked by a long-term population, as the basis for a right of return is a strong link to one?s country. It may be said that the Jews living in Gaza/WB pre-1948 were, in the main, recent arrivals who did not have the requisite connection to the land to be entitled to a right of return. In fact, the Balfour Declaration acknowledged that they did not, by stating the advisability of establishing a national home for the Jews.81
1. Displaced Jews as a population introduced under colonialism. The right of displaced Jews might be questioned on the basis that their immigration to Palestine between the two World Wars was a manifestation of colonialism, an imposition on the existing population of Palestine to the detriment of its effectuation of the right of self-determination. However, sovereignty change associated with the end of colonialism in the third quarter of the 20th century typically involved an offer of nationality to inhabitants, even colonialists, by the new sovereign.82
1. Displaced Jews as part of a population seeking to deprive Arabs of their territory. Rights should always be analysed in relation to the purpose for which they are granted lest their exercise comprise an abuse of right. Ordinarily, the purpose of a right of ownership is to allow individuals to satisfy personal needs. However, the purpose of most of the purchases by Jews before 1948 was to create a base for statehood. If these property rights are protected, one would be facilitating a political agenda to deprive the existing population of its sovereignty.83
1. JNF as less than entitled than individuals. Whereas individuals who owned land may have rights to it, even after having been displaced from it for half a century, the same may not be true for the JNF. In particular, foreign corporations may have their interests seized so long as compensation is paid. The JNF, a British corporation, may be analogized to a company doing business in a foreign state. Individuals who lived on JNF land have no ownership right but may assert a right of return.84
Obtained
Material
Source
E A
Ottoman Law of 22nd Rab El-Awal, 1331 A.H.
Eng. Citation
English/Arabic
Ordinance to regulate the Transfer of Land (Transfer of Land Ordinance), 1920
English/Arabic (1929)
Companies Ordinance, 1921-25
Transfer of Land Amendment Ordinance, No. 2 of 1921 and the Land Transfer Ordinance, No. 2 of 1921.
English
Palestine Jewish Colonization Association (Edmond de Rothschild Foundation) Ordinance, 1924
English/Arabic
Palestine (Amendment) Order-in-Council of 25 May 1939
Arabic
Land Transfer Regulations, 1940
Eng. Citation: Laws of 1940, vol. II, p. 327
Arabic
Law for the Lease and Sale of Immovable Properties to Foreigners, No. 40 of 1953
Arabic
Law Concerning the Possession and Use of Immovable Property by Juridical Persons, No. 61 of 1953
E A
Trading with the Enemy Ordinance, 1939
Palestine Gazette No.
923, Sept. 5, 1939, Supp. No. 1, p. 95
E A
Proclamation No. 55 (1950)
Official Gazette (Jordan), No. 1032, Aug.
16, 1950, p. 447.
E A
Order Providing Regulations for the Administration of Jews? Property in the Areas Subject to the Control of the Egyptian Forces in Palestine, No. 25
Official Gazette (Egypt), No. 2, March 31, 1950, p. 43
English/Hebrew
Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970,
Hebrew
Order concerning Absentees? Property, No. 58, 1967 (5 PAGES REQUIRES TRANSLATION)
Order Concerning Governmental Property (West Bank) (No. 59), 5727- 1967, K.M.Z.M. No. 5, at 162
Order Concerning Abandoned Assets (Private Property) (West Bank) (No. 58), 5727-1967, K.M.Z.M. No. 5, at 158; Order Concerning Abandoned Assets (Private Property) (Additional Provisions) (No. 1) (West Bank) (No. 150), 5727- 1967, K.M.Z.M. No. 8, at 311
E A
Order concerning Jews? Property (the Gaza Strip and North Sinai), No. 78, 1967
Order Concerning Jews' Property (The Gaza Strip and North Sinai) (No. 78), 5727-1967, K.M.Z.M. No. 3, at 230
Palestine (Revocations) Order in Council, sec. 2, para.
2, May 12, 1948, Statutory Instrument No. 1004 of 1948. A schedule to the Order in Council lists regulations that were being repealed as of May 12
To: Palestinian Negotiating Team
From: Negotiations Support Unit, Settlements File
Subject: Rights of Jews within the OPT acquired pre-1967
Date: XX September 2008
The purpose of this memo is to outline options for dealing with property claims of Jews within the Occupied Palestinian Territory (OPT) acquired before the beginning of the occupation.
1. ISSUE
Property transactions benefiting Israel or its nationals that took place in the OPT during the occupation are invalid. This is because they violated the international humanitarian rules on property transactions, as well as the applicable local (Jordanian) laws, and were part of Israel?s illegal colonization enterprise. The future government of Palestine is therefore not required by international law to honour these transactions or the titles, rights or interests purportedly acquired through them (See NSU, Property Transactions in the Occupied Palestinian Territory Legal Brief, September 2008).
However, these titles, rights and interests are to be distinguished from those acquired by Jews before the beginning of the occupation. The latter are, in principle, legitimate rights that exist under international law and that Israel is likely to claim from Palestinians in the negotiations. Palestinian negotiators will need a strategy for dealing with these pre-1967 Jews? rights.
1. BACKGROUND
Before 1948, Jews, albeit a small minority, resided in and/or owned property in accordance with international and local laws in the areas that later became the OPT. Annex 1 provides details about who these Jews were, while Annex II provides details about where they lived and/or owned property.
After the 1948 war, as a matter of international law, Egypt and Jordan occupied Gaza and the West Bank respectively. Both Egypt and Jordan appointed custodians in whom vested the properties of the Jews who fled in 1948 (See Annex I for details).1
After the 1967 war, Israel occupied both Gaza and the West Bank. In the areas Israel unilaterally annexed around Jerusalem, the Israeli Administrator-General was charged with managing and returning Jewish property that had been held by the Jordanian Custodian to its original owners. By the mid-1990s, the Administrator-General still held and administered property belonging to Jews in East Jerusalem.2 In most other cases, the original Jewish owners had to make do with monetary compensation in lieu of the property. In the remainder of the OPT, the Israeli Custodian in the West Bank and the Israeli Commissioner in Gaza were authorised to restore property to their original Jewish owners, but the Israeli authorities' practice has been not to release this property, but to continue administering it (See Annex I for details).
1. LEGAL ANALYSIS
1. Rights of Jews pre-1967
Jews who lived in and/or owned property in what became the OPT and who were subsequently displaced and/or dispossessed of their property are entitled to remedies for their losses under international law. They are in fact in a very similar position to that of Palestinians who were displaced and dispossessed in what became Israel.
1. Nationality / Residency rights
Jews who were habitually resident before 1948 in the areas that became the OPT enjoy a right of return. It should be noted that the right of return extends not only to those persons who held the nationality of the prior sovereign, but also to persons who had a substantial connection to the prior state and who, therefore, were entitled to its nationality.3 The right also extends to the descendents of such Jews.
Furthermore, the right of return is separate and distinct from any property right the holder may also enjoy.4 That is, a person may have a right of return even if he does not own property in the home country. Conversely, a person may not necessarily enjoy a right of return even if he owns property in the country.
As of 1948, there were 500,000 to 600,000 Jews in Palestine. Most of them were not nationals of Palestine. Of the 400,000 or so Jews who immigrated to Palestine between the two World Wars, 100,000 were naturalized. So, probably fewer than half of pre-1948 Jews were nationals, but most were probably permanent residents.5 According to international law, Such Jewish Palestinian nationals or permanent residents have a right of residency in the future Palestinian state if they were residents of the areas that became Gaza and the WB.
1. Property Rights
Jews who owned land have the right to have their land restored to them or to be compensated, if restitution is not materially possible. Jews are entitled to compensation for other material and non-material losses, including lost profits, lost income, etc. caused by their displacement and dispossession.
1. Succession of Responsibilities
While the initial displacement and dispossession of Jews pre-1948 was the result of a war with, and, later, the policies of, Jordan and Egypt, Palestine, as the successor state, will be responsible for providing remedies for some of the losses sustained by the Jews to the extent that the substance of the loss is within Palestine?s control. Specifically, if asked, Palestine will be under an obligation to allow the return of the Jews who were displaced, and to restore Jewish property that is located within Palestine or compensate Jewish owners for the loss of this property. Palestine would not be responsible for compensating Jews for other material losses, like lost profits or income, or for non-material losses; these would be required from Egypt and Jordan.
As mentioned above, in spite of Israel's recognition of the right of pre-1948 Jewish owners to regain the property they left in East Jerusalem, most of them had to make do with monetary compensation in lieu of the property. With regard to Jewish property in Gaza and the rest of the West Bank, the Israeli authorities' practice has been not to release the property, but to continue administering it. To some extent, then, Israel has addressed the rights of Jews dispossessed in 1948 by recognising their right of repossession and compensating them when it expropriated their properties. To the extent that Israel has done so, the future Palestinian state is therefore relieved of the responsibility. However, under international law, the right of displaced persons to return to their country is not defeated by an offer of compensation, so those rights of displaced Jews may survive, and Palestine may be obligated to implement the right of return that Israel did not.6
1. POLICY OPTIONS
1. Recognize pre-1967 Jews? rights
As pre-1948 Jews? rights are an issue of importance to Israel ? not Palestinians - Palestinian negotiators may wish to wait for Israel to raise it in negotiations, rather than raise it themselves. Once Israel does so, Palestinian negotiators could opt to recognise pre-1948 Jews? rights and, in so doing, try to leverage them to secure a better outcome for displaced and dispossessed Palestinians on the basis of reciprocity. Pre-1948 Jews could bring pressure to bear upon Israel to secure restitution or, in its absence, full compensation. In this way, Israel would have a stake in ensuring appropriate remedies and an appropriate mechanism for the resolution of the Palestinian refugee issue. However, if the number of affected Jews is small, then the pressure brought to bear upon Israel may be insufficient to have any actual impact on Israel?s negotiating position.
1. Pre-emptively recognize pre-1967 Jews? rights
If the Palestinian leadership were to pre-empt Israel?s raising of this matter with a unilateral announcement of its recognition of pre-1948 Jews? rights, in addition to the advantages of Option A, such a move might step up international pressure on Israel to recognize and appropriately remedy Palestinian refugee and property rights. However, if this move fails to do so, it would be difficult for Palestinian negotiators to retreat from the position already taken. In practice, this is likely to mean that Palestinian negotiators would be denying themselves the option of not recognizing pre-1948 Jews? rights (Option C) and would be facing having to negotiate compensation for the pre-1948 Jews.
1. Don?t recognize pre-1967 Jews? rights
A third option is for Palestinians to wait to see how negotiations on Palestinian refugees progress and, in the event that they do not progress well, to not recognize pre-1948 Jews? rights. Annex 3 provides legal arguments to support this position.7 However, the likelihood is that Israel will offer compensation, albeit nominal, to Palestinian refugees, in which case, Palestinian negotiators will be hard-pressed not to reciprocate.
In its consideration of this policy matter, the Palestinian leadership should be sensitive to the fact that a recognition by it of pre-1948 Jews? rights in the OPT may serve as a precedent for other Arab states, who may not respond well to it and who may allow it to affect their support for Palestinians.
ANNEX 1
Who is a Lawful Jewish Property Owner?
Property transactions in favour of Israel or its nationals that took place in the OPT during the occupation are invalid. However, some Jews, albeit a very small minority, held property titles, rights and interests in accordance with international and local laws from before the beginning of the occupation. Determining who lawfully owned property before 1967 requires an analysis of the local laws applicable at the time.
Summary
Based on the applicable local laws in the OPT, described in the next section, a Jew was a lawful landowner in the following circumstances:
Natural Persons
Legal Persons
Date
National
Foreign National
National
Foreign National
< 1913
Yes, if an Ottoman national
No
No
No
1913-1918
Yes, if an Ottoman national
No
Yes, if an Ottoman national
No
1920
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
Yes, if resident in Palestine. Could only acquire property L3,000 or less in value or 300 dunums or less in area, and had to immediately cultivate the land.
1921
Yes
Yes
Yes
Yes
Before 1913, a landowner was a natural person who was an Ottoman national.
Between 1913 and 1918, a landowner was a natural or legal person who was an Ottoman national.
In 1920, a land purchaser was a natural or legal person who was resident in Palestine, irrespective of his nationality. However, he could only acquire property L3,000 or less in value or 300 dunums or less in area, and he had to immediately cultivate the land. In 1921, these restrictions were removed, including the residency requirement.
It is unclear whether, after that, there were any restrictions on natural persons. In 1921, only a company of public utility could purchase land for land development or in quantities greater than those required for its works. In 1920, the JNF was registered as a company of public utility. In 1924, the PJCA was declared to be a company of public utility.
Between 1940 and 1948, with few exceptions, land could only be transferred to Palestinian Arabs. It appears that these restrictions were removed in 1948.
In 1953, non-Jordanians were prohibited from owning land in the West Bank except in built-up areas and with the permission of the Council of Ministers. Furthermore, non-Jordanians were prohibited from leasing West Bank land for longer than 3 years without the approval of the Council of Ministers. In 1960, the restrictions were tightened, such that non-Jordanians were prohibited from owning land except in built-up areas and in quantities sufficient for their housing and work administration (not for trading), and except agricultural land that falls within lands under his control/administration. In 1962, the restrictions were relaxed, such that Arab non-nationals who used to have Palestinian or Jordanian citizenship could own land outside municipal boundaries to the extent necessary for their construction or agricultural works, with approval from the Council of Ministers. Furthermore, non-Jordanian Arabs could own land outside municipal boundaries to the extent sufficient for their residence and business management, with approval of the Council of Ministers. None of these rules retroactively altered foreign land ownership.
Similarly, in 1953, foreign companies were prohibited from acquiring land except to the extent necessary for their businesses, which could not be for possession or trading in them, upon approval of the Council of Ministers. In 1957, the restrictions were tightened, such that foreign companies could only acquire land in cities and villages. However, the amendment still allowed foreign companies to acquire land outside cities and villages if the public interest so required.8 In 1965, another amendment restricted even further land acquisition, such that companies, whether foreign or local, could not acquire property in the Old City of Jerusalem and could acquire property in the rest of the Jerusalem Governorate only if the public interest so required and with approval of a committee. None of these rules retroactively altered foreign land ownership.
In Gaza, no applicable law on property matters distinguished on the basis of race, ethnicity or national origin.
1. Analysis: Local Legal Framework
1. During the Ottoman period (before 1918)
Under Ottoman law, foreigners, whether natural or legal persons, were not permitted to own property.
Furthermore, before 1913, a corporation was not a legally defined entity under Ottoman law. Consequently, corporations intent on bringing about Jewish national ownership of the land in Palestine, such as the Jewish National Fund9 (JNF) and the Palestine Land Development ompany, Ltd.10 (PLDC), could not register land in their names.11 Instead, they would arrange to have natural persons who were Ottoman nationals register title in their names.12
In 1913, the Ottoman Law of 22nd Rabie El-Awal, 1331 A.H. was passed, enabling corporations to own land.13 However, it appears that the prohibition against foreigners purchasing land was not lifted. As the JNF and the PLDC were both incorporated in Britain and did not register as Palestinian companies during this period,14 it appears likely that they continued with the practice of using natural persons who were Ottoman nationals to purchase land on their behalf.15
1. During the British mandate (1918-1948)
Under the Ordinance to regulate the Transfer of Land (Transfer of Land Ordinance), 1920, a land registry was created. The district governor would consent to a land transfer only if the person taking title (1) was resident in Palestine, irrespective of his nationality; (2) would not acquire property exceeding L3,000 in value or 300 dunums in area; and (3) would immediately cultivate such land.16 In 1921, the Ordinance was amended to remove the three restrictions, though the government still had to approve any land transfer.17
These restrictions on land transfer apparently never applied to companies of public utility, including the JNF and the Palestine Jewish Colonization Association (PJCA).18 Under the Companies Ordinance, 1921-25, any association or partnership of ten or more members carrying on business in Palestine had to be registered with the Registrar.19 Further, the Registrar would not register any company formed for the purpose of land development or which had the objective of holding more land than was needed for its enterprise, plant and works, unless such company produced a certificate from the High Commissioner certifying that it had purposes of public utility.20 In 1920, the JNF was registered as a company of public utility.21 In 1924, the Palestine Jewish Colonization Association (Edmond de Rothschild Foundation) Ordinance, 1924 declared the PJCA to have a purpose of public utility, which apparently substituted for the High Commissioner?s certification as required by the Companies Ordinance.22
In 1940, in response to Arab concerns regarding Jewish land ownership in Palestine, the British introduced restrictions on land transfers to Jews. Pursuant to the Palestine (Amendment) Order-in-Council of 25 May 1939, the High Commissioner was authorized to prohibit and regulate land transfers.23 Acting on these powers, the High Commissioner adopted the Land Transfer Regulations, 1940, which established three zones: Zone A (16,680 km2), where land could generally not be transferred except to Palestinian Arabs; Zone B (8,348 km2), where land transfers from Arabs to Jews required permission that was generally withheld; and land outside Zones A and B (1, 292 km2), which could be freely transferred.24 According to the hand-drawn map annexed to the Regulations, what became Gaza and the West Bank was entirely Zone A, meaning that land transfers to Jews were, with few exceptions, prohibited.25 Britain apparently repealed these Regulations upon the termination of its Mandate (12 May 1948).26
1. West Bank under Jordanian rule (1948-1967)
1. Acquisitions by Jews between 1948-1967
Shortly after Jordan assumed power in the West Bank, it introduced restrictions on foreign land ownership. The Law for the Lease and Sale of Immovable Properties to Foreigners, No. 40 of 1953 required permission for a non-Jordanian to lease land for longer than a three-year period.27 It also restricted a non-Jordanian from owning land, except in municipal areas or town planning areas and with the permission of the Council of Ministers.28 Law No. 12 of 1960 tightened the restrictions, such that non-Jordanians were prohibited from owning land except in municipal areas or town planning areas in built-up areas and in quantities sufficient for their housing and work administration (not for trading), and except agricultural land that falls within lands under their control/administration.29 Law No. 2 of 1962 relaxed the restrictions, such that Arab non-nationals who used to have Palestinian or Jordanian citizenship could own land outside municipal boundaries to the extent necessary for their construction or agricultural works, with approval from the Council of Ministers.30 Furthermore, non-Jordanian Arabs could own land outside municipal boundaries to the extent sufficient for their residence and business management, with approval of the Council of Ministers.31 None of these rules retroactively altered foreign land ownership.
The Law Concerning the Possession and Use of Immovable Property by Juridical Persons, No. 61 of 1953 prohibited foreign companies from acquiring ownership or possession of land except to the extent necessary for their businesses, which could not be for possession or trading in them, upon approval of the Council of Ministers.32 Law No. 4 of 1957 tightened the restrictions, adding that foreign companies could only acquire land in cities and villages.33 However, the amendment still allowed foreign companies to acquire land outside cities and villages if the public interest so required.34 Law No. 4 of 1965 restricted land acquisition even further, such that companies, whether foreign or local, could not acquire property in the Old City of Jerusalem and could acquire property in the rest of the Jerusalem Governorate only if the public interest so required.35 Like Law No. 40 of 1953, this law was prospective, so it did not deprive the JNF of land purchased before 1948.36
1. Properties owned by Jews by 1948
In August 1950, the Jordanian General Administrative Governor of the West Bank issued A Proclamation Aiming to Prevent the Crossing of Borders between the Arab Areas and Jewish Areas in Palestine, and Prohibition of Trading and Dealing with the Enemy No. (55) of 1950. This Proclamation provided that residents of the State of Israel (including its Arab citizens) would be considered enemies in relation to the laws regarding trading with the enemy.37 Relying on the Trading with the Enemy Ordinance, 1939 and on the Proclamation, the Jordanian Minister of Interior appointed the Custodian of Enemy Property and vested in him, through a multitude of specific and general vesting orders, the property of Israelis in the West Bank.
The Custodian held and administered Jewish-owned in the West Bank until 1967 according to the Trading with the Enemy Ordinance (as opposed to administering the land like absentee property according to the powers and rules of IHL).38 Some of these assets were used by the Custodian for public purposes, such as the
establishment of refugee camps, the rehabilitation of refugees, and the setting up of army camps and marketplaces. In other cases, the property was leased to private individuals, who used the land for agricultural, commercial or residential purposes, depending on its characteristics.39
1. Gaza under Egyptian rule (1948-1967)
In Gaza, no law applicable to property matters distinguished in property ownership on the basis of race, ethnicity or national origin.40
By the Order Providing Regulations for the Administration of Jews? Property in the Areas Subject to the Control of the Egyptian Forces in Palestine, No. 25 (issued in 1948, published in 1950), Egypt appointed a Director General to administer property owned by Jews who fled in 1948. The Director General used the parcels for public projects, including refugee camps for Palestine Arabs, or leased them for private uses.41
1. Under Israeli occupation (after 1967)
1. Jewish property in East Jerusalem
After 1967, Israel adopted the Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970, which charged the Israeli Administrator-General with the task of managing and returning Jewish property that had been held by the Jordanian Custodian of Enemy Property to its original owners. Under the Law, the Administrator-General is mandated to release the property to its original owners, and has no discretion in this regard.42 Still, the release requires a certificate signed by
the Administrator-General and is executed only after locating the property and exploring all the matters pertinent to its legal status and the status of the claims to it. By the mid-1990s, the process had not been completed, and the Administrator-General still held and administered property belonging to Jews in East Jerusalem.43
In spite of the Law's recognition of the right of the original Israeli owners to regain the property they left in East Jerusalem, most of them had to make do with monetary compensation in lieu of the property. The reason was that numerous plots of land in East Jerusalem were expropriated to build new residential neighbourhoods and to restore the Jewish quarter in the Old City. The compensation for Israelis' property not yet released to its original owners was entrusted to the Administrator-General, to be kept for the original owners.44
1. Jewish property in the West Bank and Gaza
In 1967, Israel appointed a custodian to oversee the property under the custody of the Jordanian Custodian of Enemy Property pursuant to the Order concerning Absentees? Property, No. 58, 1967.45 Similarly, by the Order concerning Jews? Property (the Gaza Strip and North Sinai), No. 78, 1967, Israel appointed a Commissioner of Jews? Property to assume the role of the Egyptian Director General.
The Custodian/ Commissioner was legally authorised to restore property to its Jewish owners, but the Israeli authorities' practice in the West Bank and Gaza has been not to release property, but to continue administering it. This property has occasionally been used for Israeli settlements in the OPT. At times, willingness was also expressed to take into consideration the injury to the original owners by allocating alternative lands for their use at a low rent. However, the policy of not releasing the property to its original owners and continuing its administration by the authorities has been strictly observed.46
Attempts made by Israeli citizens to have their rights to such property restored have failed,47 and such property has remained in the possession and management of the Custodian of Government Property.
1. Under Oslo
Israel and the PLO agreed in the Interim Agreement that [t]he Palestinian side shall respect the legal rights of Israelis (including corporations owned by Israelis) related to Government and Absentee land located in the areas under the territorial jurisdiction of the Council.48 Pursuant to the Agreement, settlements and specified military locations, presumably including any Jewish-owned lands located therein, fall outside the jurisdiction of the Council and are issues for final status negotiations.49 Thus, through these provisions, Israel secured Palestinian agreement not to alter or otherwise interfere with the property rights of Jews in the OPT until permanent status negotiations.
ANNEX 2
Where are the lands of lawful Jewish land owners located?
Before 1922
Little land was purchased by Jews during the Ottoman period in Gaza and the West Bank.50
One important exception was land located on Mount Scopus, which was purchased from a British national in 1916. Boris Goldberg, a member of Lovers of Zion, paid for the land and took title in his name.51 He gifted the land to the JNF, which gave a 999-year lease to Hebrew University.52 Additional land was purchased on Mount Scopus from Raghib al-Nashashibi, Mayor of Jerusalem, and was used for the Hebrew University. Hadassah Hospital was also built on land purchased on Mount Scopus.53
1. 1922-1948
During the British mandate, most land purchases were concluded by the JNF, the PLDC and the PJCA. Other purchases were concluded by individuals and real estate companies.54
Land purchased by the PLDC was transferred to the JNF. The JNF in turn leased (but did not sell) land to individual Jews. Thus, any Jew who lived on JNF land before 1948 would not have held title. However, it seems that the JNF may have sold some land to private companies. Granovsky provides the example of a 1935 partnership between the JNF and Africa-Palestine Investments, Ltd. whereby the JNF purchased 7,000 dunums, keeping 4,000 and transferring 3,000 to Africa-Palestine Investments, Ltd.55
In the case of the PJCA, it sold some of its land to individual Jews under long instalment plans, or granted long-term leases.56 Thus, some PJCA land may have never been sold and thus remained in its ownership, some may have been leased and thus remained in its ownership, and some may have been sold but the instalment payments not made in full.57
In Gaza, the JNF did not purchase any major parcels of land. By 1946, the JNF acquired 72,300 dunums in the Gaza district, which encompassed more than present-day Gaza.58
In 1930, a Jewish farmer from Rehovot, Tuvia Miller, bought 262 dunums of land in Dayr al-Balah in the Gaza sub-district. Miller eventually sold his land to the JNF in the early 1940s. The JNF then allowed settlers from the religious Ha-Poel ha-Mizrahi movement to build the kibbutz of Kfar Darom on the land in October 1946. They abandoned the kibbutz in June 1948.59
Stein reports a purchase of 4,048 dunums in Huj (Gaza sub-district) in 1935 but does not indicate the identity of the Jewish purchaser.60 Note, however, that the Palestine Partition Commission reported that, by 1938, only 3,300 dunums in Gaza were owned by Jews.61
In 1941, 6,373 dunums were purchased by the JNF around Gaza City, though it is unknown whether the purchase was permissible under the Land Transfer Regulations 1940.62
The government of Palestine estimated a population of 3,540 Jews in the Gaza sub-district at the end of 1946. Information has not been found on the circumstances under which these Jews departed from Gaza in 1948.63
In the case of the West Bank, Shehadeh gives a figure of 30,000 dunums owned by Jews by 1948. During the 1920s and 1930s, the JNF did not seek land in the West Bank because it was not close to other tracts of land it had already purchased and because the West Bank was not as suitable for agriculture. The only substantial parcels purchased or leased in the West Bank were in or around Jerusalem.64
There were Jewish settlements north of Jerusalem called Atarot and Neve Yaakov, which were evacuated in 1948.65
A settlement called Bet Haarava, and Palestine Potash, Ltd., both located at the northern end of the Dead Sea, were situated on miri land leased by the government of Palestine and were evacuated in 1948.66
During the 1920s and 1930s, individual Jews and two Jewish-owned realty companies, Zikhron David and El Hahar, bought land in the hills around Hebron.67 Notwithstanding (and, actually, because of) the Land Transfer Regulations, 1940, which placed nearly all of the West Bank in Zone A, the JNF began purchasing land around Hebron in 1940. It acquired about 8,400 dunums by 1947, some of which was purchased from individual Jews and from Zikhron David and El Hahar. The settlements established on this land were called Kfar Etzion, Masuot Yitzhak, Ein Tzurim and Revadim. The JNF circumvented the prohibition on acquisition of land by Jews by creating front companies. Most of the Jewish-owned land around Hebron was held, as of 1948, by the JNF rather than by individual Jewish owners.68
Some 16,000 dunums of land were purchased by Jews before 1948 in the Etzion Bloc and Beit Hadassah.69
Himnuta bought land near Jericho and present-day Ma?ale Adumim. The funding in urban areas usually came from state coffers, while the purchase of agricultural land was paid for by the JNF.70
During the British mandate, the government of Palestine leased miri land on a long-term basis (50 or 100 years) to Jewish settlement organisations.71
By 1948, the concentrations of lands owned by Jews were in the old Jewish quarters of Jerusalem and Hebron, on the periphery of Jerusalem, and in the Tul-Karem region and the Gaza Strip.72
* Apparently, 80% of Har Homa?s [Jabal Abu Ghneim?s] land is Jewish land purchased in the forties and before.73
1. 1948-1967
As far as can be determined, no land was bought by Jews in Gaza or the West Bank between 1948 and 1967.74
1. After 1967
In 1967, the Israeli government allowed settlers from the four Hebron settlements to return there. The claim of ownership to these lands is that of the JNF. The settlers or their descendents have a right of repatriation only.75
Information has not been found on whether post-1967 settlements were established on land in Gaza that at some time was owned by Jews.76 Most of these were inhabited, though some Jews were forced to leave during the 1920s and 1930s. Similarly, several thousand, mainly from the Jewish quarter of Jerusalem and the Gush Etzion settlements were displaced in 1948.77
* The JNF lost land in the Dheisheh refugee camp in the West Bank as well, and this matter has been postponed for the eventual [peace] talks for over a decade.78
ANNEX 3
Legal Arguments against Claims of Nationality and Property Rights of Jews pre-1948
1. Israel?s violation of the corresponding rights of Palestinians. Since 1948, Israel has violated its obligation to extend nationality to Palestinians displaced from the territory over which Israel gained control. Under international law, a state may violate rights of another state as a counter-measure to a violation by the latter of the former?s rights. However, a state is not permitted to violate human rights as a counter-measure. Thus, the fact that Israel has failed to recognise the property, nationality and residency rights of displaced Palestinians does not justify a future Palestine?s violation of the property, nationality and residency rights of displaced Jews.79
Moreover, respecting the property, nationality and residency rights of displaced Jews would have the strategic political purpose of exerting pressure on Israel to act similarly in regard to displaced Palestinians.
1. Displaced Jews? Israeli nationality. A displaced national or permanent resident who voluntarily acquires a new nationality loses his right of return. Any Jew who resided in Gaza/WB before 1948 and subsequently acquired Israeli nationality may be said to lose his right of return to his pre-1948 residence. However, such a displaced Jew may not forfeit his Palestinian nationality or residency right if he was denied the right of return by Jordan or Egypt, or did not return because the circumstances of conflict made return unfeasible. In those events, the acquisition of Israeli nationality was not a matter of free will but a way of gaining some protection pending the possibility of restoration of the prior nationality.80
1. Recent arrival of displaced Jews. The right of return is ordinarily invoked by a long-term population, as the basis for a right of return is a strong link to one?s country. It may be said that the Jews living in Gaza/WB pre-1948 were, in the main, recent arrivals who did not have the requisite connection to the land to be entitled to a right of return. In fact, the Balfour Declaration acknowledged that they did not, by stating the advisability of establishing a national home for the Jews.81
1. Displaced Jews as a population introduced under colonialism. The right of displaced Jews might be questioned on the basis that their immigration to Palestine between the two World Wars was a manifestation of colonialism, an imposition on the existing population of Palestine to the detriment of its effectuation of the right of self-determination. However, sovereignty change associated with the end of colonialism in the third quarter of the 20th century typically involved an offer of nationality to inhabitants, even colonialists, by the new sovereign.82
1. Displaced Jews as part of a population seeking to deprive Arabs of their territory. Rights should always be analysed in relation to the purpose for which they are granted lest their exercise comprise an abuse of right. Ordinarily, the purpose of a right of ownership is to allow individuals to satisfy personal needs. However, the purpose of most of the purchases by Jews before 1948 was to create a base for statehood. If these property rights are protected, one would be facilitating a political agenda to deprive the existing population of its sovereignty.83
1. JNF as less than entitled than individuals. Whereas individuals who owned land may have rights to it, even after having been displaced from it for half a century, the same may not be true for the JNF. In particular, foreign corporations may have their interests seized so long as compensation is paid. The JNF, a British corporation, may be analogized to a company doing business in a foreign state. Individuals who lived on JNF land have no ownership right but may assert a right of return.84
Obtained
Material
Source
E A
Ottoman Law of 22nd Rab El-Awal, 1331 A.H.
Eng. Citation
English/Arabic
Ordinance to regulate the Transfer of Land (Transfer of Land Ordinance), 1920
English/Arabic (1929)
Companies Ordinance, 1921-25
Transfer of Land Amendment Ordinance, No. 2 of 1921 and the Land Transfer Ordinance, No. 2 of 1921.
English
Palestine Jewish Colonization Association (Edmond de Rothschild Foundation) Ordinance, 1924
English/Arabic
Palestine (Amendment) Order-in-Council of 25 May 1939
Arabic
Land Transfer Regulations, 1940
Eng. Citation: Laws of 1940, vol. II, p. 327
Arabic
Law for the Lease and Sale of Immovable Properties to Foreigners, No. 40 of 1953
Arabic
Law Concerning the Possession and Use of Immovable Property by Juridical Persons, No. 61 of 1953
E A
Trading with the Enemy Ordinance, 1939
Palestine Gazette No.
923, Sept. 5, 1939, Supp. No. 1, p. 95
E A
Proclamation No. 55 (1950)
Official Gazette (Jordan), No. 1032, Aug.
16, 1950, p. 447.
E A
Order Providing Regulations for the Administration of Jews? Property in the Areas Subject to the Control of the Egyptian Forces in Palestine, No. 25
Official Gazette (Egypt), No. 2, March 31, 1950, p. 43
English/Hebrew
Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970,
Hebrew
Order concerning Absentees? Property, No. 58, 1967 (5 PAGES REQUIRES TRANSLATION)
Order Concerning Governmental Property (West Bank) (No. 59), 5727- 1967, K.M.Z.M. No. 5, at 162
Order Concerning Abandoned Assets (Private Property) (West Bank) (No. 58), 5727-1967, K.M.Z.M. No. 5, at 158; Order Concerning Abandoned Assets (Private Property) (Additional Provisions) (No. 1) (West Bank) (No. 150), 5727- 1967, K.M.Z.M. No. 8, at 311
E A
Order concerning Jews? Property (the Gaza Strip and North Sinai), No. 78, 1967
Order Concerning Jews' Property (The Gaza Strip and North Sinai) (No. 78), 5727-1967, K.M.Z.M. No. 3, at 230
Palestine (Revocations) Order in Council, sec. 2, para.
2, May 12, 1948, Statutory Instrument No. 1004 of 1948. A schedule to the Order in Council lists regulations that were being repealed as of May 12
