Jewish Lands in Judea, Samaria, the Gaza District, and East Jerusalem.

Lustick, Ian S.

By Eyal Zamir and Eyal Benvenisti. Jerusalem: Jerusalem Institute for Israel Studies, 1993. 319 pages, including appendix.

For two decades officials in the Israel Lands Administration, in cooperation with the Jewish National Fund and bizarrely registered land and money laundering "companies" such as "Hemnuta" and aggressive settler groups such as "Ateret Cohanim" (Crown of the Priests) Yeshiva, have sought to purchase or otherwise acquire as much land over the Green Line as possible. The unscrupulous and often sordid details of this campaign have usually been hidden from view, but their explosive political results have not. With another controversy in the offing concerning an attempt to build Jewish apartments in Ras el-Amud, on land purchased via middlemen in the heart of Arab al-Quds, with revelations concerning substantial transfers of funds for such purposes from wealthy right-wing American Jews and the relocation of Arab sellers of land to South America, with the killings of a number of Palestinians accused by other Palestinians of selling land to Israelis and the PA's arrest of many more, and with reports of intensified Palestinian efforts to buy land from Jews or from Arabs who might otherwise sell to Jews, the issue of land ownership, land purchase, and land confiscation has once again resumed to the center of debates over the future of Israeli-Palestinian relations.

One of the most specific, but most mysterious, aspects of this debate pertains to the argument used by the Netanyahu government to justify its construction of a settlement on Jabal Abu-Ghneim, southeast of Jerusalem, known in Hebrew as Har Homa. The Israeli government has tried to mollify Arab, international, and even Israeli opposition to the project by emphasizing that most of the land designated for Har Homa is "Jewish land," i.e. owned by Jews before the 1948 war. Indeed the project was approved over the objections of some of those owners, who wanted control over the properties to which they have title.

Why did the government expropriate these lands and not turn them over to their Jewish owners? If so much national and political importance is given to the holding of title by Jews to particular plots of land, why haven't this or previous Israeli governments "liberated" or, in legal jargon, "realized" all lands owned by Jews before 1948 by resuming them to the control of their owners? These are among the questions raised and answered in a phenomenal, but almost totally unknown book written by Eyal Zamir and Eyal Benvenisti and published in 1993, just as negotiations for the implementation of the Oslo accords were getting underway. The book is a detailed legal and political guide for Israeli negotiators and politicians. The authors clearly conceived of their mission as providing government officials with the information and analysis necessary to convince them not to be tempted to use Jewish title to lands in the West Bank and Gaza to justify resuming those lands to their owners. Consideration of some of the compelling arguments in this book explains why the Netanyahu government has avoided pressing claims for Jewish-owned properties in Hebron and why it much prefers to expropriate Jewish-owned lands in expanded Jerusalem for "public" (i.e. Israeli-Jewish) housing projects or settlements rather than return the lands to their documented owners. It also explains how ultimately dangerous it is for Israeli governments to justify their actions by emphasizing the Jewish identity of the owners of some of the lands they are expropriating.

Benvenisti and Zamir estimate that no more than 60,000 dunams of West Bank land were owned by Jews prior to 1948, most of which already are within the use-areas of Jewish settlements across the Green Line. But the fate of these lands, and in particular Jewish-owned lands in what Israel has demarcated as expanded East Jerusalem, has enormous implications now that Israel and Jordan have signed a peace treaty and now that the Oslo process has, officially at least, set the stage for final-status negotiations, including negotiations over the refugee question and the question of absentee Arab property in Israel.

As long as a state of war officially prevailed between Israel and Jordan, Israel's rule of the West Bank was founded, from the Israeli legal point of view, on the international law of "belligerent occupation." This body of law is based on the Hague Regulations of 1907 (which Israel accepted as binding) and the Geneva Conventions of 1949 (which Israel did not formally accept as binding). Under this legal rubric, the property of nationals of enemy states, prior to the negotiation of a peace agreement, is subject to control by a "Custodian of Enemy (or Absentee) Property." Thus after its annexation of the West Bank in 1950, Jordan set up such an administrative body to hold and administer the use of properties owned by Jews (now Israeli Jews). This paralleled the Israeli establishment of a Custodian of Absentee Property to hold and administer the use of the vastly larger amount of Arab-owned property within Israel proper -- land and other property owned by Palestinian Arabs who fled or were expelled from what became Israel in 1948 and took up residence in Jordan, Syria, Lebanon, the West Bank, Gaza, etc.

What the authors of this book emphasize and analyze in brilliant detail are the myriad of fascinating questions raised by current Israeli land expropriation practices and legal arguments for the rules that will be used to return properly or compensate past owners for their property. These questions have been made unprecedentedly real by the Israel-Jordan Peace Treaty (signed after the book's publication) and by the Oslo and post-Oslo peace and transitional agreements between Israel and the Palestinians. With Israel and Jordan now at peace, the properties of absentee owners in each country, administered during the previous state of war by the Israeli and Jordanian custodians, are now theoretically eligible for return to their owners and are the subject of multilateral negotiations that are tied to the outcome of the Israel-Palestinian peace process. Since Jordan has "disengaged" itself from the West Bank, Palestinians living in the West Bank but holding property inside Israel must also consider the fate of their property and/or compensation claims to be tied to the outcome of negotiations toward a full peace between Israel and the Palestinian Authority.

Therefore, if Israeli governments use pre-1948 ownership documents to demand, now, that the Jewish-owned lands in the West Bank, administered heretofore by the Jordanian Custodian of Absentee Property and now by the Palestinian Authority, should be returned to their pre-1948 owners, they would, in effect, be establishing the principle that Arabs living at peace with Israel, in Jordan or presumably within the territory ruled by the Palestinian Authority, now have the right to demand the "realization" of their lands. Since, according to Zamir and Benvenisti, returning Palestinian property in this way is absolutely unacceptable to Israel, Israeli governments should restrain themselves from insisting on the return of Jewish-owned lands to their pre-1948 owners. A closely related, and no less important, point is that no policy should be implemented which clearly indicates that the political status of lands occupied in 1967 has been permanently determined until Israel is prepared to deal with claims for the return of property and compensation.

By and large this advice has been followed. But not in Jerusalem. The authors acknowledge that, consistent with Israel's claim that it regards the 71 square kilometers of the West Bank added to the Yerushalayim municipality in 1967 differently than it does the rest of the West Bank, it should be willing to "realize" Jewish-owned lands, on Har Homa and elsewhere in "East Jerusalem," without engaging in this practice elsewhere across the Green Line. The problem here, according to the authors, and the legal and political vulnerability created by allowing Israeli Jews to receive their property located in expanded East Jerusalem, is that the principle thereby instantiated, that Arab al-Quds and its surroundings really are a part of Israel, constitutes an invitation to the Arabs living in that area who possess title to a great deal of land and property in West (now Jewish) Jerusalem, to advance their claims as well.

It is the desire to avoid opening this Pandora's Box, while also whitewashing its confiscatory, discriminatory and aggressive settlement activities in the Jerusalem area, that the Netanyahu government prefers to emphasize the Jewish ownership of some of the lands it expropriates, without allowing those lands to actually be returned to their Jewish owners.

The Benvenisti and Zamir book is truly extraordinary in its exhaustive detail and professional sophistication. It provides an unprecedented opportunity to understand the actual political and legal calculations made by Israeli policy makers and the constraints they feel themselves to be operating under. Many topics not mentioned here are covered quite thoroughly, including the crucial importance of the Hague Regulations, the range of international practice and precedent with respect to the disposition of enemy property and former-enemy property, anomalous Israeli attempts to offer some kinds of compensation to some Arab landowners, the differences and similarities in the status of absentee property in the West Bank and Gaza, the irreversible legal implications of the Oslo accords for the political status of the Palestinians vis-a-vis Israel, and overall guidelines for how Israel should and can address the compensation issue in the context of claims or property left behind in some Arab countries (but not Jordan!) by Jewish refugees.

The text is complemented by a lengthy and extremely helpful documentary appendix. Unfortunately, but not surprisingly, the book was only published in Hebrew and has not been translated.