ABU SITTA: Dividing war spoils September 23, 2009

Erasing Palestinian ownership

by Salman Abu-Sitta  -  Al-Ahram Weekly Online  -  17-23 September 2009

While news headlines have been about demands for a freeze or suspension of Jewish settlements in the occupied Palestinian territories and jockeying at the sixth Fateh conference in Bethlehem, Israel has been putting into effect the most devastating operation since the ethnic cleansing of Palestine in the Nakba of 1948. This new operation aims to eliminate irrevocably Palestinian rights and historical roots in Palestine.

Ironically, Arab and Palestinian leaderships remain oblivious to these cataclysmic developments. In particular, the Palestinian leadership, whose main duty is to defend Palestinian rights, is bogged down with the assignment of internal political posts and fighting what it sees as its primary enemy, Hamas.

The Zionist leadership in Israel felt bold enough to transform the ideological slogan of “Jewish Israel” into a reality on the ground. The Knesset passed a law on 3 August which allows the sale of “Absentee” Palestinian refugees’ land to exclusively Jewish individuals and institutions anywhere in the world. Thus, the legal right of the original Palestinian owner to his land would be severed through creating a barrier between the owner and his property. The passing of the new law represents an audacious initiative by the current Israeli government that no previous Israeli government dared contemplate.

It will be recalled that the state of Israel was founded on the land it occupied in Palestine in 1948/49. The conquered area is 20,255 sq km which represents 78 per cent of the Mandatory Palestine. The land Israel occupied was delineated by the armistice line defined in the Armistice Agreements signed with four Arab countries in 1949.

At the time, Israel contrived all kinds of intricate legal frameworks to make use of the absentee Palestinian refugees’ land short of outright legal ownership of the land out of fear of international condemnation and accountability before international courts.

With the exception of 1,429,000 donums (one donum is 1000 sq m) of Jewish land according to the British Mandate records, representing a mere seven per cent of Israel’s area, the remainder of the land, amounting to 18,826,000 donums, or 93 per cent of Israel, is Palestinian land. This Palestinian ownership includes private and public land, land for common use or usufruct and natural resources in, above or below ground.

Israel reverted, after 1948, to premeditated acts of systematic destruction of Palestinian villages; burning of agricultural crops; and poisoning of wells; all with the intent to deter Palestinian refugees from returning home.

On the political front, and following the first month after the expulsion of the Palestinian refugees in 1948, Israel declared that it would not allow the return of any Palestinian refugee to his home on the pretext that they would pose a security threat to Israel. However, for the Israelis, the remaining question was how to make use of the conquered vast Palestinian land and valuable Palestinian property in 14 different cities without invoking international condemnation that could lead to the return of the Palestinian refugees and the reclaiming of their land and properties?

David Ben-Gurion, prime minister of Israel at the time, fearing that UN mediator Count Folke Bernadotte would make recommendations in the report he was preparing for the UN General Assembly for the return of the Palestinian refugees to their homes, resorted to a trick. He engineered a fictitious sale agreement with the Jewish National Fund, a tax-exempt world organisation, of 2.5 million donums of the most fertile and best absentee Palestinian land situated along the delineated Armistice Line. This way, Ben-Gurion would be able to claim that the absentees’ Palestinian land was no longer in the possession of the state of Israel and that Israel cannot be obliged to return it to the Palestinian refugees, the rightful owners of the land.

Count Bernadotte was assassinated by an Israeli zealot, and as Ben-Gurion had predicted, the UN passed Resolution 194 that called for the return of the Palestinian refugees. Israel aborted the talks with Arab countries in Lausanne during 1949/ 1950 that were held to discuss the implementation of UN Resolution 194. With the failure of implementation of UN Resolution 194, Israel felt bold enough to dispose of the absentee Palestinian refugees’ land.

Meanwhile, Israel issued the law of Absentees’ Property in 1950 that applied as well to the properties of the remaining Palestinians inside Israel who were given the oxymoron expression of Present Absentees. The law assigned the state as the bona fide Custodian in charge of all the absentee Palestinian land without the right of outright ownership.

In the same year, 1950, another law was enacted establishing the “Development Authority”, with the mandate to take over from the Custodian. This authority has the power to use, rent and sell the land to Jewish entities only.

It took the Israelis the first 10 years since the founding of the state to sort out the conflict with the JNF which wanted the Palestinian land to be registered in the name of “the Jewish people” in perpetuity, while Israel wanted it in the name of the state.

In 1960, Israel put an end to the legal quarrel over confiscated property of Absentee Palestinians when the law of Israel Land Administration (the ILA, which should have properly read: Israel Administration of the Lands) was passed. This law combines all lands under the control of the JNF and the state of Israel under ILA, and under the rules of the JNF, which stipulate that these lands are not to be used, rented, lived in or sold except to Jewish entities. Accordingly, 19 million donums are under the authority of ILA to this day.

The new law that was just passed by the Knesset on 3 August gives ILA the authority to sell the absentee Palestinian refugees’ land to Jewish persons that are currently leasing them and other Jews anywhere in the world. According to the new law, the Israeli Kibbutzim and Moshav, the current tenants of the largest lands, would become the legal owners of rural Palestinian lands with the right to convert their use from agriculture, a profession the Israelis could not master well, to the building of industrial parks, touristic centres, trade and financial sites the Jews’ forte.

Concurrent with the enactment of the new law in the Knesset, negotiations are under way between the Jewish National Fund and ILA to swap lands. ILA is in need of lands owned by the JNF in the central area of the country for the purpose of constructing new residential complexes. In return, the JNF would receive land in Galilee in the Naqab for the settlement of future Jewish immigrants. Clearly, neither of the two organisations possesses the unquestioned legal ownership rights of these lands.

Once the Fund acquires the lands in Galilee and Naqab, the laws of the Fund restrict the use of the land to Jews to the exclusion of the Palestinian citizens of Israel, a clear discriminatory ruling against the lawful owners of the land. The first outcome of the land swap between the two organisations after the sanction of the Knesset will be the transfer to ownership of 90,000 housing units to the current Jewish tenants occupying them.

Naturally, the usurpation of the absentee Palestinian land and its sale is in flagrant violation of international law. Furthermore, it is in strict violation of The Hague’s Regulations of 1907 and the Fourth Geneva Convention (Article 147) that forbids the “extensive appropriation of property”. In addition, these acts are in contravention of the rulings of the Nuremberg Tribunal after the World War II with regard to Case number 10 that prohibited the confiscation of private property.

Besides, the United Nation issued a number of resolutions in 1996, 1997 and 1998, for example Resolution 52/62 entitled “Palestine refugees’ property and their revenues” , which obliges Israel to protect the refugees’ properties, properly document them and provide regular information about them. UN Resolution 62/ 52 further stipulates that all income accruing to these properties since 1948 is the sole right of these refugees.

Israel is persisting in its defiance of international law and even its American and European allies who are not taking any measures to deter Israel from the continued violations of international law and human rights. Israel’s defiance is reaching unprecedented proportions as demonstrated three weeks ago in the eviction of Arab residents of Jerusalem from their homes before the very eyes of the whole world, with scarcely any protest.

Clearly the expropriation of lands here and there to construct Jewish settlements on the top of the hills of the West Bank is government policy, whichever party is in power.

Unannounced, a new ruling stated that the Absentees Property Law of 1950 applies to anyone in the West Bank who is defined as “Absentee” according to this law. According to Haaretz (2 August) the Judge of the Ramallah Court has issued a ruling that stipulates the application of the Absentees’ Property Law in the West Bank as well, i.e., the confiscation by Israel of the possessions of Palestinian absentees. This ruling is in complete violation of UN Security Resolutions and the legal opinion of the International Court of Justice of July 2004 that unequivocally states that the West Bank is an occupied territory that should neither be annexed nor usurped.

How disturbing that despite all these dramatic developments, not a single Arab or foreign body condemned Israel’s new flagrant violations. Israel even went further by publishing an announcement in the Palestinian Jerusalem daily Al-Quds on 28 June declaring its intention to register 139,000 donums north and west of the Dead Sea area in its name provided no one contests this registration by providing acceptable proof of ownership rights. With such an announcement, Israel would deprive the future New Palestinian State of its sovereign rights over the waters of the Dead Sea, its beaches, mineral wealth and borders with neighbouring Jordan. In short, Israel’s confiscation of these lands is tantamount to Israel’s official acquisition of most of the area of the Jordan Valley.

What this signifies is that the whole Palestinian question has been reduced to the Palestinian people living in exile, and their land is open for sale or transfer to any Jew around the world.

That said, however, the rightful claims on the land remain valid regardless of the occupiers’ laws or the passage of time. But it is incumbent on those defending those rights to stand up and do what is needed.

First to ring the alarm of this ominous development was “Adalah” (Justice), the Nazareth-based Legal Centre for Arab Minority Rights in Israel. Adalah served the Israeli General Attorney with a letter dated 22 June challenging the legality of the sale of the Palestinian possessions under both international and Israeli law. In its turn, “Itijah” (Direction), another Palestinian organisation based in Haifa, issued a general declaration condemning Israel’s initiative to distribute what Itijah termed “spoils of war” of 1948 among world Jewry. Itijah called for Arab and international support to stop this most flagrant theft.

However, a great deal yet has to be done that has not really started. Foremost, it is incumbent upon the Arab League to draft a resolution for the next meeting in September of the UN General Assembly that would call for the condemnation, the annulment and immediate halt and reversal of the sale of Palestinian absentees’ possessions. The draft resolution should call on the UN secretary-general to appoint a fact-finding mission to visit Israel to collect information on absentee Palestinian refugees’ possessions, ensure their proper due registration of titles to the rightful Palestinian owners, and establish estimates of the accrued revenues for 62 years from these possessions that are due the rightful owners (Palestinian refugee land expert Jarvis called for this in 1964). The draft resolution must further call for the placing of the Palestinian refugees’ possessions under international trusteeship.

It is the obligation of the Palestinian Authority to take the urgent diplomatic and practical steps necessary to addressing this problem, for, otherwise, it would find itself, in no time, without land on which it could one day found its new state.

As for the 11 million Palestinian people scattered in all the Arab and foreign countries, they will never abandon their right to their homes despite the fact that they have not been allowed to elect their own representatives to a truly new representative Palestinian National Council.

However long the struggle, the Palestinian people will ultimately create truly representative bodies that will defend its interests and put an end to the plundering of its legitimate property. In the end, justice shall prevail with the eclipse of Zionism and the ultimate redemption of Arab Palestine.

* The writer is the founder and president of Palestine Land Society in London.
Download full paper Position_Paper_on_Land_Reform_and_EJ_and_GH_settlements_English_Final1

LINK: http://weekly.ahram.org.eg/2009/965/re2.htm#1

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