0 1Gail J. Boling, Senior Researcher, Birzeit University Institute of Law. J.D., The Ohio State University College of Law (1994); member of the Illinois bar. The author gratefully thanks Prof. John Quigley for generously commenting on an earlier version of this article.
1 Hashomer Hatzair Archives (Mapam, Kibbutz Artzi Papers), Yediot Hakkibutz Ha'artzi- Hashomer Hatzair, No. 278 (I), January 1949, "Report from the meeting of the Kibbutz Artzi- Hashomer Hatzair Council," Nahariya, 10-12 December 1948. 2 For detailed expositions of the importance in Zionist strategizing of the concept of "transfer" to remove the Palestinians from Palestine, see, e.g., NUR MASALHA, EXPULSION OF THE PALESTINIANS: THE CONCEPT OF "TRANSFER" IN ZIONIST POLITICAL THOUGHT 1882-1948 (1992); CHAIM SIMONS, INTERNATIONAL PROPOSALS TO TRANSFER ARABS FROM PALESTINE, 1895-1947 (1988); Israel Shahak, A History of the Concept of Transfer in Zionism, 67 J. PALESTINE STUD. 22 (1989); Benny Morris, Yosef Weitz and the Transfer Committees, 1948-49, 88 MIDDLE EASTERN STUDIES 522 (October 1986); NUR MASALHA, A LAND WITHOUT A PEOPLE: ISRAEL, TRANSFER AND THE PALESTINIANS, 1949-96 (1997). See, e.g., statements attributed to David Ben-Gurion, the leader of the Yishuv in Palestine, in early November 1947: In the event of war between the two Palestine states, said Ben-Gurion, the Arab minority in the Jewish State would be "a Fifth Column." Hence, it was best that they be citizens of the Palestine Arab State so that, if hostile, they "could be expelled" to the Palestine Arab State. But if they were citizens of the Jewish State, "it would only be possible to imprison them, and it would be better to expel them than to imprison them." Cited in BENNY MORRIS, THE BIRTH OF THE PALESTINIAN REFUGEE PROBLEM, 1947-1949, at 28 (1987) (footnotes omitted) (hereinafter "The Birth"). 3 See, e.g., Janet Abu-Lughod, The Demographic Transformation of Palestine, in THE TRANSFORMATION OF PALESTINE: ESSAYS ON THE ORIGIN AND DEVELOPMENT OF THE ARAB-ISRAELI CONFLICT 139, 161 (Ibrahim Abu-Lughod ed., 1971 ) (an estimated 780,000 displaced Palestinians were trapped outside the Green Line and not allowed to return); see also Ilan Pappe, Were They Expelled?: The History, Historiography and Relevance of the Palestinian Refugee Problem, in THE PALESTINIAN ExoDUS 1948-1998, 52 (Ghada Karmi and Eugene Cotran eds., 1999) (noting that some demographers put the figure of displaced Palestinians from this period at as high as one million persons). 4 Hereinafter referred to as "the 1948 externally displaced Palestinians," or "1948 refugees." 5 The "Green Line" is the term used to refer to the de facto borders of Israel established under the four 1949 armistice agreements Israel concluded with Egypt, Jordan, Lebanon and Syria. See The General Armistice Agreements between Israel and Egypt, February 24, 1949, 42 U.N.T.S. 251; Israel and Jordan, April 3, 1949, 42 U.N.T.S. 303; Israel and Lebanon, March 23, 1949, 42 U.N.T.S. 287; and Israel and Syria, July 20, 1949, 42 U.N.T.S. 327.
6 See, SALMAN ABU SITTA, THE PALESTINIAN NAKBA 1948: THE REGISTER OF DEPOPULATED LOCALITIES IN PALESTINE 17 (1998); C'. SALIM TAMARI, PALESTINIAN REFUGEE NEGOTIATIONS: FROM MADRID To Oslo II 43-44 (1996). 7 DAVID Kretzmer, THE LEGAL STATUS OF THE ARABS IN ISRAEL 57, n. 39 ( 1990). 8 Hereinafter referred to as "the 1948 internally displaced Palestinians," and together with the 1948 externally displaced Palestinians, "the 1948 displaced Palestinians." Israel ironically denom- inates the 1948 internally displaced Palestinians the "Present Absentees." 9 See the National Society for the Rights of the Internally Displaced in Israel, available at http://www.6adil.org. 10 G.A. Res. 194, U.N. GAOR, 3rd Sess., U.N. Doc. A/810 (1948).
" See, Analysis of Paragraph 11 of the General �s�m&�'.s Resolution of 11 December 1948, Working Paper Prepared by the U.N. Secretariat (15 May 1950) U.N. Doc. A/AC.25/W.45. Section 1, entitled "Who Are the Refugees?" states, in paragraph 3: According to the above interpretation the term "refugees" applies to all persons, Arabs, Jews and others who have been displaced from their homes in Palestine. This would include Arabs in Israel who have been shifted from their normal places of residence. 12 Regrettably, for reasons of space, this article will focus only on the case of the 1948 displaced Palestinians. While many of the international law principles applicable to an analysis of Israel's treatment of the private property of the 1948 displaced Palestinians would apply equally to the legal issues raised by Israel's treatment of the private property of the Palestinians displaced in 1967, such an analysis must await a further study. 13 For cogent discussions of the various grounds under international law according to which the 1948 displaced Palestinians have a right to return to their homes, see John Quigley, Displaced Palestinians and a Right of Return 39 HARV. INT'L L. J. 171 ( 1998) ( hereinafter "Right of Return");
continued. John Quigley, Mass Displacement and the Individual Right of Return, 68 BRIT. Y.B. OF INT'L L. 65 (1997) (hereinafter "Mass Displacement"); Kathleen Lawand, The Right to Return of Palestinians in International Law, 8 INT'L J. OF REFUGEE L. 532 (1996); W.T. Mallison and S. Mallison, The Right of Return, 9 J. PALESTINE STUD. 125 (1980); Gail J. Boling, THE 1948 PALESTINIAN REFUGEES AND THE INDIVIDUAL RIGHT OF RETURN: AN INTERNATIONAL LAW ANALYSIS (2001). For an insightful discussion of the competing interests that have informed the Palestinian-Israeli dialogue on the rights of the displaced Palestinians, as well as the complexities of the negotiating framework and the relative marginalization of this topic until the very end stages of the negotiations, see generally Salim TAMARI, supra note 6; EnA ZUREIK, PALESTINIAN REFUGEES AND THE PEACE PROCESS (1996); Terry Rempel, The Ottawa Process: Workshop on Compensation and Palestinian Refugees, 113 J. PALESTINE STUD. 36 (Autumn 1999). 14 See, e.g., LEX TAKKENBERG, THE STATUS OF PALESTINIAN REFUGEES IN INTERNATIONAL LAW 242-46 (1998) (stating that the right of return in Resolution 194 has been analyzed as a collectively- held right, based on the Palestinian people's collective right of self-determination, as well as an individual right held by each displaced Palestinian personally). The author is deputy director of UNRWA field operations in Syria. 15 see Quigley, Right of Return, supra note 13; Quigley, Mass Displacement, supra note 13; Lawand, supra note 13; Boling, supra note 13. 16 G.A. Res. 194, U.N. GAOR, 3rd Sess., U.N. Doc. A/810 (1948). 17 see G.A. Res. 273 (May 11, 1949) (admitting Israel to the United Nations). This resolution is significant for three reasons: First, in the fourth preambular paragraph, the General Assembly expressly "Not[ed] ... the declaration by the State of Israel that it 'unreservedly accepts the obligations of the United Nations Charter and undertakes to honour them from the day when it becomes a Member of the United Nations'." Second, in the fifth preambular paragraph, the General Assembly expressly "Recall[ed] ... [G.A.] resolution ... of 11 December 1948," that is Resolution 194, regarding repatriation, restitution and compensation for the 1948 displaced Palestinians. Third, also in the fifth preambular paragraph, the General Assembly "[took] note of the declarations and explanations made by the representative of the Government of Israel [Abba
continued. Eban] before the Ad Hoc Political Committee in respect of the said resolutions." On May 5, 1949, Abba Eban had pledged to the U.N.'s Ad Hoc Political Committee that Israel would both compensate the 1948 externally displaced Palestinians for their private property and also respect the property of Palestinians remaining inside the Green Line (which would include the "internally displaced" Palestinians). See 1950 U.N.Y.B. 1948-49, 399-401; ABBA EBAN, AN AUTOBIOGRAPHY 140�2 (1977). To date, Israel remains in violation of all three of these conditions to its admission as a state into membership of the United Nations. '8 G.A. Res. 194, U.N. GAOR, 3rd Sess., para. 11 (1), U.N. Doc. A/810 (1948). ). 19 See the lengthy discussion regarding the three key issues then under consideration in the British draft version of Paragraph 11 of what became Resolution 194 - the right of return, the right of restitution, and the right of compensation - as summarized in the official summary records of the General Assembly, Summary Records of Meetings 21 September-8 December 1948, U.N. GAOR, 3rd Sess., pt. 1, C.1, at 904-912, U.N. Doc. A/C.1/SR.226 (1948). The comments made by Mr. El-Khouri, the Syrian Representative to the General Assembly, on December 3, 1948, are particularly informative regarding the property rights of the 1948 displaced Palestinians: On the question of responsibility for damages and for compensation, it appeared to Mr. El-Khouri that damages fell into three categories. Firstly, there was the land and property of those who did not return. This should be paid for by those who took possession, whether they were Arabs or Jews. Secondly, there was personal property and merchandise which had been looted. The party which had carried out the looting should be responsible for providing compensation. Thirdly, there was the question of property which had been destroyed, such as houses which had been dynamited. Losses of this nature should be paid for by those who had committed this damage. If these matters were not taken up by the [proposed Conciliation] [C]ommission [for Palestine], it was not clear who would do so. The displaced persons could not be left indefinitely without compensation. Their rehabilitation should not be conditioned upon the proclamation of peace. The Syrian Representative felt that the British draft version of Paragraph 11(1) was too vague regarding the pressing issues of repatriation and property restoration for the displaced Palestinians. Summary Records of Meetings 21 September-8 December 1948, U.N. GAOR, 3rd Sess., pt. 1, C.1, at 909, U.N. Doc. A/C.1/SR.226 (1948). In direct response to the concerns of the Syrian representative, the U.S. representative to the General Assembly responded with the following comment, as summarized in the official records of the General Assembly: Mr. Rusk (United States of America) recalled that earlier the United States had submitted a text on the question of refugees (A/C.1/397/Rev.1). His delegation had collaborated in the drafting of the present text of the United Kingdom resolution in an effort to eliminate political considerations and deal in a practical manner with the refugee problem. It had been impressed
continued. by the difficulties and complexities involved. The questions of fact and responsibility, claims and counter-claims, etc., would require elaborate procedures including political agreements and settlement by judicial decisions. These could not all be detailed in the [proposed] resolution ; an effort has been made to express the principles simply.... On the question of responsibility, the Assembly was unable to say who had been responsible for any particular action. Each case needed careful examination. The resolution [ 194] ought not to attach unlimited responsibility at the present time. Hence the U.S. representative voted in favor of the British draft version of Paragraph 11(1), ), which ultimately passed with one verbal change of the word "possible" to "practicable." See Summary Records of Meetings 21 September-8 December 1948, U.N. GAOR, 3rd Sess., pt. 1, C.1, at 909-910, U.N. Doc. A/C.1/SR.226 (1948).
Z° Historical Precedentsfor Restitution of Property or Payment ofCompensation to Refugees, Working Paper Prepared by the United Nations Secretariat, Geneva, March 1950, U.N. Doc. A/AC.25/W.81/Rev.2 (Annex I). 21 Id. at para. 1 (emphasis in original).
ZZ Compensation to Refugees for Loss of or Damage to Property to Be Made Good under Principles of International Law or in Equity, Working Paper prepared by the United Nations Secretariat, Geneva, October 1949, U.N. Doc. A/AC.25/W.81/Rev. 2 (Annex II). 21 Id. at para. 6 (emphasis added). 14 Id. at para. 7 (emphasis in original). zs Id. at para. 7 (emphasis in original).
26 The following section relies heavily upon the following works: BENNY MORRIS, The Birth, supra note 2; BENNY MORRIS, 1948 AND AFTER: ISRAEL AND THE PALESTINIANS (2nd ed. 1994); SAMI HADAWI, PALESTINIAN RIGHTS AND LOSSES IN 1948: A COMPREHENSIVE STUDY (1988); WALID KHALIDI, FROM HAVEN TO CONQUEST: READINGS IN ZIONISM AND THE PALESTINE PROBLEM UNTIL 1948 (2nd ed. 1987); ILAN PAPPE, THE MAKING OF THE ARAB-ISRAELI CONFLICT 1947-51 (1992); THE PALESTINIAN ExoDUS 1948-1998 (Ghada Karmi and Eugene Cotran eds., 1999); Arnon Golan, The Transfer to Jewish Control of Abandoned Arab Lands during the War of Independence, in ISRAEL: THE FIRST DECADE OF INDEPENDENCE (S. Ilan Troen and Noah Lucas eds., 1995). Economists, such as Atef Kubursi have conducted extensive quantification studies on private property losses. Kubursi's most recent monograph, PALESTINIAN LossES IN 1948: THE QUEST FOR PRECISION (1996) updates his original groundbreaking analysis, An Economic Assessment of Total Palestinians Losses, in SAMI HADAWI, PALESTINIAN RIGHTS AND LOSSES IN 1948 (1988). 27 See authorities collected at note 13, supra. The U.N.'s International Law Commission codified these existing rules in its Articles on Nationality of Natural Persons in Relation to the Succession of States, G.A. Res. A/RES/55/153 (December 12, 2000).
28 See, e.g., John Quigley, Right of Return, supra note 13, at 210: The creation of Israel did not involve the substitution of one sovereignty for another, instead it was a state emerging from a mandate. Its formation involved not a transfer of sovereignty but the emergence of actual sovereignty in territory in which sovereignty was suspended. Thus the rule of customary law that, upon a substitution of sovereignty, the inhabitants acquire the nationality of the new state, obtains as well when a state is formed in mandate territory. ... State practice suggests that the inference of nationality applies to all who carry the national- ity of the prior state, regardless of their whereabouts on the date of transfer of sovereignty. The International Law Commission's working group has said that the inference of nationality applies to all nationals of the former state, regardless of where they reside. The inference thus would apply to Palestinians absent at the time Israel entered into sovereignty. Id. (footnotes omitted). See also, Kathleen Lawand, supra note 13, at 567: Palestinian refugees from the territory that is now Israel may further claim the right to return on the ground that they are in fact nationals of Israel, pursuant to the international law of State succession. The latter provides that nationality passes automatically with territory, subject to the successor State's competence to regulate the conferment of its nationality, which in turn is limited by its duties to other States and by its duty of non-discrimination. Based on this principle, Palestinian Arabs who were habitual residents of Palestine and held Palestinian citizenship before partition automatically became nationals of Israel with the creation of that State in 1948. This also applies to those Palestinian Arabs who fled or were expelled from the parts of Palestine that became Israel, and as nationals they had the right to return to Israel as their 'country'. Id. For discussion of Israel's illegal selective denationalization of the 1948 externally displaced Palestinians through its 1952 Nationality Law, see Boling, supra note 13, collecting authorities.
29 See, e.g., Eyal Benvenisti and Eyal Zamir, Private Claims to Property Rights in the Future Israeli- Palestinian Settlement, 89 AM. J. INT'L L. 295, 300 & n.7 (1995). down Peretz has written one of the most succinct accounts of the development of the "Absentees' Property" Laws, in his 1995 monograph, PALESTINIAN REFUGEE COMPENSATION (hereinafter "Refugee Compensation"). It is based upon his longer, and much-cited work ISRAEL AND THE PALESTINE ARABS (1958) (hereinafter "Palestine Arabs") which covers in detail much of the subject matter of this paper, including the displacement of the initial 1948 group of Palestinians and early attempts to achieve repatriation, the work of the Conciliation Commission for Palestine, the development of the "Absentees' Property" laws, and (largely unsuccessful) attempts to compensate the 1948 displaced Palestinians for their private property claims. Peretz has written yet a third study, entitled PALESTINIAN REFUGEES AND THE MIDDLE EAST PEACE PROCESS (1993) (hereinafter "M.E. Peace Process"), which again focuses on the important issues of repatri- ation and compensation, among other possible options for resolving the situation of the displaced Palestinians. For other useful discussions of the development of Israel's "Absentees' Property" laws, see Sabri Jiryis, Settlers' Law: Seizure of Palestinian Lands, 2 PAL. Y.B. INT'L L. 17 (1985) (hereinafter "Settlers' Law"); JiRyis, THE ARABS IN ISRAEL 83-88 (1976) (hereinafter "Arabs in Israel"); Sabri Jiryis, The Legal Structure for the Expropriation and A6sorption of Arab Lands in Israel, 8 J. PALESTINE STUD. 82 (1973) (hereinafter "Legal Structure"); IAN LuSTiCK, ARABS IN THE JEWISH STATE: ISRAEL'S CONTROL OF A NATIONAL MINORITY 173-74 (1980); JOHN QUIGLEY, PALESTINE AND ISRAEL: A CHALLENGE To JUSTICE 107-109 (1990) (hereinafter "Palestine and Israel"). The following account of the early actions taken by the provisional government of Israel, which served as precursors to Israel's "Absentees' Property" laws, benefits greatly from the important work of Benny Morris and Peretz. 31 PERETZ, PALESTINIAN REFUGEE COMPENSATION 3 (1995) ("By April , Jewish para-military forces had taken the offensive, seizing the towns of Baysan, Jaffa, Acre, Lydda, Ramie and Arab sectors of Haifa, Safad and Jerusalem, as well as most Arab property and surrounding agricul- tural areas.")
'2 Id., at 3 (1995). 33 See MORRIS, The Birth, supra note 2, at 171. The precursor body to the current Israeli Knesset. 35 Benny Morris, The Causes and Character of the Arab Exodus from Palestine: The Israeli Defense Forces Intelligence Branch Analysis of June 1948, 22 MIDDLE EASTERN STUDIES 5, 6-7 (1986); Erskine B. Childers, The Wordless Wish: From Citizens to Refugees, in THE TRANSFORMATION OF PALESTINE: ESSAYS ON THE ORIGIN AND DEVELOPMENT OF THE ARAB ISRAELI CONFLICT 165, 193 (Ibrahim Abu-Lughod ed. 1971); Michael Akehurst, The Arab-Israeli Conflicts in International Law, 5 NEW ZEALAND UNIVERSITY LAW REVIEW 231, 233 (1973). 3s See MORRIS, The Birth, supra note 2, at 171. " Id., at 174 (footnote omitted). '8 Abandoned Areas Ordinance, L.S.I. , vol. 1, pp. 25-26 ( 1948) (issued by the Prime Minister and the ministers of Justice and Finance and published in the Official Gazette on June 30, 1948). 3s The Finance Minister was charged with supervising the execution of the ordinance, which was made retroactive to May 16, 1948. See, PERETZ, Refugee Compensation, supra note 30, at 3.
°° Id., at 3 (quoting Ha'aretz, June 17, 1951). 41 See MoRRis, The Birth, supra note 2, at 174 (footnotes omitted). 41 PERETZ, Refugee Compensation, supra note 30, at 3. See also Morris, The Birth, supra note 2, at 164. In a July 21, 1948 Cabinet meeting, it was decided that "jurisdiction over the abandoned villages henceforward would reside with the Ministerial Committee for Abandoned Property, which had been set up in early July. But the Ministerial Committee was to prove almost com- pletely ineffectual in halting the private vandalisation and organised destruction by IDF units of the empty villages." Id. 43 PsRE'rz, Palestine Arabs, supra note 30, at 149. 44 Provisional Israel Government, yon Rishmi (Official Gazette) Supp. II, no. 27, Oct. 15, 1948, pp.3-8; Law and Administration Ordinance, 1948, Emergency Regulations Concerning Cultivation of Waste Lands and Use of Unexploited Water Sources, issued by Minister of Agriculture, October 11, 1948. °s PERETZ, Refugee Compensation, supra note 30, at 3 ("The minister of agriculture could seize land by posting a notice that it had to be cultivated within fourteen days. If not cultivated within a fortnight, the ministry could take it over for a year, cultivate it, or turn it over to any other cultivator.")
46 Peretz, Refugee Compensation, supra note 30, at 4. " A dunam (also variously spelled dunum) is roughly equivalent to a quarter of an acre. as MORRIS, The Birth, supra note 2, at 176. '9 `Iton Rishmi, Supp. II, no. 37, December 12, 1948, pp. 59-70; Law and Administration Ordinance, 5708-1948, Emergency Regulations Concerning Absentee Property, December 2, 1948; L.S.I., vol. 1, p. 8, no. 1 of 5708-1948, Law and Administration Ordinance, section 9(a). The "Absentees' Property" regulations were issued by the Minister of Finance pursuant to the powers conferred upon him by the Law and Administration Ordinance of 1948. so The definition of "absentee" under the December 1948 regulation included all persons "who held property in Israel and who on, or after, November 29, 1947 (the date of the United Nations' Resolution concerning the partition of Palestine) were: (a) citizens or subjects of Lebanon, Egypt, Syria, Saudi Arabia, Jordan, Iraq or the Yemen, or (b) were in any of these countries or in any
continued part of Palestine outside the area of the regulations, or (c) were Palestine citizens and left their places of habitual residence." See PERETZ, Palestine Arabs, supra note 30, at 151. 51 Id. 51 PERETZ, Palestine Arabs, supra note 30, at 151. 53 id. 54 Id. 55 Id., at 158-59. Peretz gives the breakdown of the number of dunums cultivated by each organization. 56 Id., at 160.
57 See MORRIS, The Birth, supra note 2, at 178-79. se For an excellent detailed analysis of the scale and value of the private property belonging to Palestinians displaced during the pre-and post-May 1948 fighting from just one prominent urban area - the formerly Palestinian-populated neighborhoods of West Jerusalem - which Ben-Gurion ordered settled almost immediately with Zionist Jewish immigrants (squatters), see JERUSALEM 1948: THE ARAB NEIGHBOURHOODS AND THEIR FATE IN THE WAR (Salim Tamari ed., 1999). s9 PERETZ, Palestine Arabs, supra note 30, at 164 (footnote omitted). bo MoRRis, The Birth, supra note 2, at 195-96 (footnotes ommited). 61 See PERETZ, Palestine Arabs., supra note 30, at 154-55: The government classified tens of thousands of Israeli Arabs as absentee. But in urban areas only 400 residents of Jaffa, Haifa and Jerusalem who had never left the country recovered some of their property, according to [Minister of Finance Eliezer] Kaplan. The non-urban property of "several score" Arabs was also released. The Custodian issued a total of 209 certificates releasing property to its Arab owners.... There were also a few instances in which
continued. merchandise was returned to Arabs after they proved their ownership. The Finance Minister reported that the Custodian's Office also helped to resettle some refugees who had been forced to move to new homes. 62 See PERETZ, Palestine Ara6s, supra note 30. The entirety of chapter XII of his book is devoted to the subject of bank accounts blocked by Israel under the December 1948 regulation, and the protracted negotiations through the U.N. Conciliation Commission for Palestine for the release of the accounts to their owners, who were 1948 externally displaced Palestinians. 63 Morris, The Birth, supra note 2, at 178 (footnotes omitted). 64 KRETZMER. supra note 7, at 62 & n. 69.
bus Id., at 62 & n. 70. 66 Id., at 62-63. 6' Absentees' Property Law, 4 L.S.I. 68 ( 1950). 68 Peretz understands the Absentees' Property Law to be a cumulative law, which attempted to integrate the various strands of policy which hitherto had formed [Israel's] lines of action. Actually the Absentee Property Law defined no new procedure. It merely legalized the de facto situation which grew out of improvisation under wartime emer- gency conditions. PERETZ, Palestine Ara6s, supra note 30, at 142. 69por the sake of clarity, since there had already been a "Custodian of Absentees' Property" set up under the December 12, 1948 ordinance, it may be useful to attempt to distinguish between the two offices - which are functionally similar but nevertheless derive their authority from different sources, namely the provisional government of Israel, as distinguished from the state of Israel - by referring to them as the "1948 Custodian" and the "1950 Custodian," respectively.
'° Absentees' Property Law, 4 L.S.I. 68 (1950) art. 1 para. (b), text as given in KRETZMER, supra note 7, at 56-57. Note that the "state of emergency" referred to in the first paragraph of the definition has not been lifted and is still in force. " Absentees' Property Law, 4 L.S.I. 68 (1950), art. 19. 'Z KRETZMER, supra note 7, at 57 & n. 39. Peretz puts the figure for the 1948 internally displaced Palestinians considerably lower, at 30,000. See Peretz, Palestine Arabs, supra note 30, at 185 & n. 49. '3 Israel has not repealed its "State of Emergency" declared on May 19, 1948 and accordingly, it is arguable that this "State of Emergency" is valid to the present. Thus, any Palestinian who left
continued. his/her usual place of residence during the statutorily defined period may come within the wide ambit of the "Absentee" definition. 74 on the situation of those "internally displaced" negatively affected by the "Absentees' Property" Law (the majority), whom Israel has termed the "Present Absentees," see generally Majid Al-Haj, The Ara6 Internal Refugees in Israel, in PALESTINIANS UNDER ISRAELI RULE (Ian Lustick, ed., 1994); HILLEL COHEN, HA-NIFKADim HA-NOKHADKHim: HA-PLITIM HA-PALFSTINA'lm BE-YISRAEL ME'AZ 1948 ("The Present Absentees: The Palestinian Refugees in Israel Since 1948") (2000) (in Hebrew); DAVID GROSSMAN, THE PRESENT ABSENTEES (1992). 75 Peretz reports that estimates of the amount of land confiscated from the internally displaced Palestinians range from 300,000 to 1,000,000 dunums. PERETZ, Palestine Arabs, supra note 30, at 183 & n. 45.
'6 Id., at 143 (footnotes omitted) (emphasis added). 77 Id., at 147. 78 The 1950 Custodian was appointed by the Minister of Finance, who was a member of the Mapai Party. The 1950 Custodian was later criticized for having distributed vast quantities of "absentee" property to Mapai party loyalists. According to Peretz: ... 90 per cent of absentee property [went to] to Mapai-controlled institutions.... All aban- doned Arab stores and workshops were turned over to the Mapai-controlled agencies ... whereas private institutions had received no such property. Among those who attempted to reap profits from absentee lands were government officials and representatives of the Jewish Agency who had inside contacts with the absentee property administration.... [T]here were instances in which such unauthorized individuals did reap large profits from absentee lands. Charges that Mapai and the General Zionists had cornered the market on absentee property were made in a series of articles in Ha-aretz early in 1957. The author, Yair Cutler, charged that when the two parties had worked together in a coalition government, the choicest holdings, especially former Arab-owned citrus groves, had been distributed among institu- tions controlled by Mapai and the General Zionists, instead of being made accessible to the public at large. Of the 120,000 dunums of absentee groves, a mere 66.5 dunums were distributed by public auction. Furthermore, some 2,000 to 3,000 dunums of citrus groves were "stolen property," that is, property which was taken over and cultivated by private operators without the knowledge of any official authority. Psxsrz, Palestine Arabs, supra note 30, at 171, 176-77 (footnotes omitted). 79 Id., at 171.
Case No. C.A. 58/54 ( 1956), Law Report, JERUSALEM POST, June 7, 1956, cited in Peretz, Palestine Arabs, supra note 30, at 177 (case concerning Sa'd Habib and his ice factory in Jaffa). 81 Id., at 177. 82Id., at 178 & n. 29. 83 The Development Authority (Transfer of Property) Law, 4 L.S.I. 151 (1950).
$4 AVRAHAM GRANOTT (GRANOVSKY), AGRARIAN REFORM AND THE RECORD OF ISRAEL 102 (1956). 85 PERETZ, Palesrine Arabs, supra note 30, at 180. $6 ISRAEL GOVERNMENT, GOVERNMENT YEARBOOK 5717, 225 (1956) (Eng11S11 edition). Cf. KRETZMER, supra note 7, at 58 & n. 41 (stating that the 1950 Custodian "transferred" the "absentee" property to the Development Authority, but not characterizing the transaction as a "sale.") 87 Jiryis, Settlers' Law, supra note 30, at 20.
88 PERE'rz, Palestine Arabs, supra note 30, at 181. 89 Id. 90 Id., at 182. 91 Jiryis, Settlers' Law, supra note 30, at 20. 92 PERETZ, Palestine Arabs, supra note 30, at 181.
93 MICHAEL DUMPER, ISLAM AND ISRAEL: MUSLIM RELIGIOUS ENDOWMENTS AND THE JEWISH STATE 33 (1994). 94 Land Acquisition (Validation of Acts and Compensation) Law, 7 L.S.I. 43 (March 10, 1953). 95 Jiryis, Settlers' Law, supra note 30, at 26. Jiryis notes: During the first year after the Law was passed the Minister [of Finance], in fact, issued 465 certificates that were published on about 330 pages of the Israeli Official Gazette, for the confiscation of 1,225,174 dunums of the land of 291 Arab villages. (The other land was evidently regarded as absentees' property.) This area included 149,226 dunums of land that was the property of 28 villages, whose inhabitants remained in Israel, which was handed over to Israel under the 1949 Israeli-Jordanian Armistice Agreement. Id. (footnote omitted). 96 Kretzmer lists the three statutorily enumerated conditions: 2.(a) Property in respect of which the Minister certifies by certificate under his hand - (1) that on the 1st April, 1952 it was not in the possession of its owners; and (2) that within the period between the 14th May, 1948 and the 1st April, 1952 it was used or assigned for purposes of essential development, settlement or security; and ( 3 ) that it is still required for any of these purposes - shall vest in the Development Authority and be regarded as free from any charge, and the Development Authority may forthwith take possession thereof. KRETZMER, supra note 7, at 58. 97 Id., at 59.
98 Id. (footnotes omitted). 9s PERETZ, Palestine Arabs, supra note 30, at 184. '00 �TZMER, supra note 7, at 59 & n. 53. 101 Jiryis, Arabs in Israel, supra note 30, at 127. Sharett stated at a governmental conference on the compensation law that the compensation rate was "a scandalous robbery, since the Israeli pound is worth only one-fifth of its former value." Id. at 127 & n. 71. 102 PEeE'rz, Palestine Arabs, supra note 30, at 184. 113 Jiryis, Arabs in Israel, supra note 30, at 127. 104 PERETZ, Palestine Arabs, supra note 30, at 184.
105 1d. 106 Id., at 185. 107 KRETZMER, supra note 7, at 59 (footnotes omitted). 108 �d, at 58. 109 JjRyis, Arabs in Israel, supra note 30, at 118.
110 judgments 6: 1198, Yacoub Hassuneh v. Custodian for Absentee Property et al., Appeal 332/52; Judgments 23: 151, Boulos Boulos v. the Minister of Development et al.; both cases cited in Jiryis, Id., at 118 & n. 35. 111 MICHAEL DUMPER, supra note 93, at 36. 112 Id., at 30-33. 113 Id., at 35. 11" JiRyis, Ara6s in Israel, supra note 30, at 120. 115 Absentees' Property (Amendment No. 3) (Release and Use of Endowment Property) Law, 19 L.S.I. 55 (1965). 116 DUMPER, supra note 93, at 45.
117 JtRyjs, Arabs in Israel, supra note 30, at 121 (describing how in 1971, the Jaffa government- appointed waqf Board of Trustees sold all of one waqf cemetery and part of another to a company building housing for Jewish settlers). 118 Legal and Administrative Matters (Regulation) Law (Consolidated Version), 24 L.S.I. 144 ( 1970). 119 Absentees' Property (Compensation) Law, 27 L.S.I. 176 (1973). I2o Kretzmer, supra note 7, at 58. 121 DUMPER, THE POLITICS OF JERUSALEM SINCE 1967, 44 & n. 65 (1997).
III pE�TZ, Palestine Arabs, supra note 30, at 142. 113 See, IAN LusTICK, supra note 30, at 179 (1980); Hasan Amun, Uri Davis, and Nar San'allah, "Deir al-Asad: The Destiny of an Arab Village in Galilee: A Case Study Towards a Social and Political Analysis of the Palestinian-Arab Society in Israel," in HASAN AMUN, (ed.), PALESTINIAN ARABS IN ISRAEL: Two CASE STUDIES 39 (1977). 124 PERETZ, Palestine Arabs, supra note 30, at 143 (citing figures compiled by the U.N. Conciliation Commission for Palestine's Refugee Office) (footnote omitted). 115 Id., at 143-44 (citing figures compiled by the U.N. Conciliation Commission for Palestine) (footnote omitted). 126 See John Ruedy, "Dynamics of Land Alienation," in IBRAHIM ABU-LUGHOD (ed.), THE TRANSFORMATION OF PALESTINE: ESSAYS ON THE ORIGIN AND DEVELOPMENT OF THE ARAB-ISRAELI CONFLICT 135 & n. 59 (2nd ed., 1987) (citing the United Nations, General Assembly, Progress Report of the United Nations Conciliation Commission for Palestine, Suppl. 18, December 11, 1949 - October 23, 1950, pp. 5-6, 12-15). 117 Id., at 135 & n. 60. izs See IAN LUSTICK, supra note 30, at 57; Jerusalem Post, January 18, 1953, p. 3.
119 KRETZMER, supra note 7, at 74 & n. 71. �3° Jiryis, Settlers' Law, supra note 30, at 18 (citing figures given in AVRAHAM GRANOTT (GRANOVStcY), AGRARIAN REFORM AND THE RECORD OF ISRAEL 28 (1956)). i3' See PERETZ, Palestine Arabs, supra note 30, at 186. 13z Jiryis, Settlers' Law, supra note 30, at 28.
133 PERETZ, Palestine Arabs, supra note 30, at 142. 134 RuEDY, supra note 126, at 136-38 (footnotes omitted).
for thorough discussions of Israel's land confiscation laws inside 1948 Israel, see, in particular, Jiryis, Settlers' Law, supra note 30. See also JiRyis, Arabs in Israel, supra note 30, at 75-134; Jiryis, Legal Structure, supra note 30; Inrr Lus'rtcx, supra note 30, at 170-182; JOHN QUIGLEY, Palestine and Israel, supra note 30, at 105-125; PERETZ, Palestine Arabs, supra note 30, at 141-191; REUDY, supra note 126. 136 Defense (Emergency) Regulations, Palestine Gazette, no. 1442, supplement no. 2, September 27, 1945, pp. 1055-1098; also published as Government of Palestine, The Defense (Emergency) Regulations, 1945 (as amended until 2nd March, 1947) (1947). In 1948, the Knesset adopted a preserving statute intended to retain the originally British- enacted Defense (Emergency) Regulations. See Law and Administration Ordinance, art. 11, L.S.I., vol. 1, p. 7 (1948). The Defense (Emergency) Regulations give the government the power to impose statutory martial law during a state of "emergency," with wide-ranging repressive and punitive powers over the civilian population. Israel declared such a state of "emergency" in 1948. See Law and Administrative Ordinance, art. 9(a), L.S.I. , vol. 1, p. 7 ( 1948). Based on the statutor- ily declared state of emergency, Israel imposed martial law on its Palestinian citizens, under the martial law provisions of the Defense (Emergency) Regulations. See "Statutory Martial Law," Defense (Emergency) Regulations, Palestine Gazette, no. 1442, supplement no. 2, September 27, 1945, pp. 1055-1098 (arts. 148-162); also published as Government of Palestine, The Defense (Emergency) Regulations, 1945 (as amended until 2nd March, 1947) (1947). Martial law lasted until 1966, when the state of emergency was de facto suspended, although to this date it has never been repealed on a de jure basis. In actuality, Britain had issued an Order in Council repealing its Emergency (Defence) Regulations to become effective as of midnight May 13-14, 1948 since Britain intended to terminate its mandate in Palestine effective as of May 14, 1948. See Palestine (Revocations) Order in Council, sec. 2, para. 2, May 12, 1948, Statutory Instrument No. 1004 (1948); see also letter of Tim Renton, minister of foreign and commonwealth office, to Al-Haq (West Bank affiliate of the International Commission of Jurists), April 22, 1987 (confirming that Britain repealed its Emergency (Defense) Regulations in May 1948 prior to terminating the mandate). Hence Israel's attempt to preserve the preceding British law was invalid. For public-relations reasons, Israel preferred to be able to characterize the draconian Emergency (Defence) Regulations as a British hold-over rather than as an Israeli creation because the Zionist move- ment had so strenuously objected to them when the British were applying the repressive measures against the Zionist settlers during the Mandate period. See Jiryis, Arabs in Israel, supra note 30, at 11-14 (citing numerous statements by leaders in the Zionist settler movement during the mandate period objecting to the Emergency (Defense) Regulations, e.g., Dr. Moshe Dunkelblum, who later became an Israeli Supreme Court judge: they "violate the basic principles of law,
continued. justice, and jurisprudence ... giv[ing] the military and administrative authorities absolute power ... [and] abolish the rights of the individual and grant unlimited power to the administration"; Dr. Bernard Joseph (later Dov Joseph), of the Jewish Agency: "As it is, there is no guarantee to prevent a citizen from being imprisoned for life without trial. There is no protection for the freedom of the individual: there is no appeal against the decisions of the military commander, no means of resorting to the Supreme Court ... while the administration has unrestricted freedom to banish any citizen at any moment"; Mr. Yaacov Shimson Shapira, who later became a legal advisor to the new state of Israel: "The established order in Palestine since the defense regulations is unparalleled in any civilized country. Even in Nazi Germany there were no such laws and the [Nazi] deeds of Mayadink and other similar things were against the code of laws." 137 Emergency Regulations (Cultivation of Waste [Uncultivated] Lands), 2 L.S.I. 70 (1948-1949). 138 iran Lustick explains the two-step process by which Article 125 closures were followed by expro- priation under the "waste (uncultivated)" lands law: In combination with the provisions of the Cultivation of Waste Lands Ordinance, Article 125 has been the vehicle for substantial expropriations of Arab agricultural land. Typically, the process works in the following way: An area encompassing Arab-owned agricultural lands is declared a "closed area." The owners of the lands are then denied permission by the security authorities to enter the area for any purpose whatsoever, including cultivation. After three years pass, the Ministry of Agriculture issues certificates which classify the lands as uncultivated. The owners are notified that unless cultivation is renewed immediately the lands will be subject to expropriation. The owners, still barred by the security authorities from entering the "closed area" within which their lands are located, cannot resume cultiva- tion. The lands are then expropriated and become part of the general land reserve for Jewish settlement. Eventually, permission to enter the "closed area" is granted to Jewish farmers; alternatively the classification of the area as "closed" is lifted altogether. That this technique has been used, consciously, by the authorities in order to expand the area of Jewish land ownership and settlement is evident in a remark made in 1962 by Shimon Peres, then director general of the Ministry of Defense: "by making use of Article 125, on which the Military Government is to a great extent based, we can directly continue the struggle for Jewish settlement and Jewish immigration." LUSTICK, supra note 30, at 178.
139 Emergency Land Requisition (Regulation) Law, 4 L.S.I. 3 (1949). Under Article 2 of this statute, expropriation was authorized "for the defense of the State, public security, the maintenance of essential supplies or essential public services, the absorption of immigrants or the rehabilitation of ex-soldiers or war invalids." '°o The text of the Regulations appear in the Schedule to Emergency Regulations (Security Zones) (Extension of Validity) (No. 2) Law, in 3 L.S.I. 56 (1949). This law permitted designation of a strip along with entire Green Line border, including the entire Triangle area, as a "security zone," from which inhabitants could be expelled on "security" grounds. Jiryis explains: It later emerged that these Regulations had been especially drafted to allow the authorities to confiscate lands on the frontiers or the adjacent areas so that they might be sold to the Keren Kayemeth [JNF], a policy agreed upon by the Attorney General of the Israeli Government and other Israeli officials at a meeting held at the end of 1948. Jiryis, Sertlers' Law, supra note 30, at 24 (citing WEITZ, 3 YUMANI WEAGRuTAi LEBANIM [My Diary and Letters to the Children], 373-74 (1965) (in Hebrew)). "' State Property Law, 5 L.S.I. 45 (1951). The law was designed to bring under Israeli control property administered by the former British Mandatory authority in Palestine. The amount of land involved came to some 15,025,000 dunums, according to the Israel Government Yearbook, 1962/63, at 107. Article 2 of the law stated that the "Property of the Palestine authorities, situate in Israel, is the property of the State of Israel as from the 15th May, 1948." The "property of the Palestine authorities" was defined as including: "(1) all immovable property, (2) all mines and minerals of whatever kind, situate in or on land or in, on or under water, including rivers, lakes, inland seas and coastal water, (3) all movable property, (4) all rights, whether vested or contingent, which on the 14th May, 1948, were held by the Government of Palestine or any of its departments or services.... " Article 13 declared that "[o]wnerless property situate in Israel is the property of the State of Israel as from the day of its becoming ownerless or as from the 15th May, 1948, which is the later date." Text reproduced in Jiryis, Settlers' Law, supra note 30, at 21. 142 Cultivators (Protection) Ordinance (Amendment) Law, 7 L.S.I. 29 ( 1953). This law was designed to amend a 1933 ordinance passed by the British Mandate authorities to protect the rights of Palestinian farmers working any given piece of land should the owners sell it. The cultivation rights of tenant farmers had been protected under the Ottoman land code, and the British ordinance had sought to continue this protection by requiring that the new owners ensure a source of livelihood to tenant farmers before evicting them. The Israeli legislation purported retroactively to void the 1933 British ordinance. See Jiryis, Settlers' Law, supra note 30, at 30. the Official Gazette (Palestine), No. 1305, Supp. No. 1, December 10, 1943, pp. 44-53. This law was invoked mainly from the 1950s onward as a "clean-up" measure to confiscate small patches of land that had not already been confiscated through operation of the previous laws designed to reach the larger tracts of land. See Jiryis, Settlers' Law, supra note 30. 144 Prescription Law, 12 L.S.I. 129 ( 1958). Under this law, the government confiscated land to which the Palestinian owners could not sufficiently prove continuous use (according to the statutorily
continued. increased time periods). Sabri Jiryis explains the situation prior to the application of the 1958 Israeli law and how the new law was designed to frustrate Palestinians' ability to prove ownership to land: In the then prevailing legal situation, which was based on the provisions of the Ottoman Land Code of 1858 and the [British] Land (Settlement of Title) Ordinance 1928, any person who, at the time of the settlement of ownership rights of a piece of land, could prove that he had been in possession of and cultivated that land for ten successive years (this was the period of "prescription") could ask for this land to be registered in his name in the land registers, so that he was officially and legally its owner. Jiryis, Settlers' Law, supra note 30, at 29. The 1958 Israeli law extended the period of prescription from 10 to 15 years. The law also deducted the first five years "in the case of a person who came into possession of any land after the 1st March, 1943," which had the practical effect of increasing the period of prescription to 20 years for anyone who began to cultivate land after the 1943 cut- off date. Id., at 29. Thus the period of prescription was doubled (or more) from the requirement under Ottoman and British laws. The 1958 ordinance was itself amended by a later ordinance which further increased the period of prescription to 25 years. See 19 L.S.I., 102. 145 Negev Land Acquisition (Peace Treaty with Egypt) Law, 34 L.S.I. 190 (1980). This law was drafted in the context of the Camp David peace agreement with Egypt because Israel needed to relocate its military bases from the Sinai. The Negev was the selected relocation target, and the law was enacted to confiscate land quickly in the Negev. "6 Basic Law: Israel Lands, 14 L.S.I. 48 (enacted July 19, 1960). "' Israel Lands Law, 14 L.S.I. 49 (enacted July 25, 1960). "8 Israel Lands Administration Law, 14 L.S.I. 50 (enacted July 25, 1960). 149 The "Land Covenant" was signed on November 28, 1961. The text appears at Reshumot (Official Gazette), Yalkut Ha-Pirsumim, No. 1456, June 7, 1968, at 1597-1598 (Hebrew). For English text, see 2 PAL.Y.B. INT'L L. 214 (1985).
iso Israel Lands Law, 23 L.S.I. 283 (1969). 151 Convention IV (Convention Respecting the Laws and Customs of War on Land, The Hague, October 18, 1907), Annex: Regulations Respecting the Laws and Customs of War on Land [hereinafter "Hague Convention" and "Hague Regulations," respectively], 36 stat. 2277; also in BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA 1776-1949 631 (1968). 152 The 1907 Convention and annexed Regulations comprise a revision of the first Convention with Respect to the Laws and Customs of War on Land, which resulted from the First Peace Conference at The Hague in 1899. 's3 Hague Regulations, art. 22 ("The right of belligerents to adopt means of injuring the enemy is not unlimited.") 154 XXII TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG 497 (1948); also appearing in International Military Tribunal of Nuremberg, 1 Oct. 1946, ANNUAL DIGEST OF PuBLIC INTERNATIONAL LAw 253-4 (1946). The IMT judgment reads: But it is argued that the Hague Convention does not apply in this case, because of the
continued. 'general participation' clause in Article 2 of the Hague Convention of 1907. That clause provided: 'The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I, as well as in the present convention, do not apply except between contracting powers, and then only if all the belligerents are parties to the convention.' Several of the belligerents in the recent war [World War II] were not parties to this convention. In the opinion of the [International Military] Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt 'to revise the general laws and customs of war,' which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter. Id. iss This was not all that remarkable a finding, for it simply restated the accepted understanding that customary norms of international law can evolve, over time, from repeated adherence to Treaty standards. Having achieved the status of custom, the norms then become binding upon all states, irrespective of their being parties to the treaty from which the norm originally emanated or not. See, ADAM ROBERTS AND RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 6 (1989). 116 Attorney General of the Government of Israel v. Adolf Eichmann, 36 INTERNATIONAL LAW REPORTS 293 (29 May 1962) (emphasis in original). 157 Hilu v. The Government of Israel, HC 302/72, HC 306/72, 27(2) P.D. 169. 'S8 Ayyoubv. Minister of Defence, HC 606/78, 610/78, 33(2) P.D. 113. 'S9 A Teacher's Housing Cooperative Society v. The Military Commander of the Judea and Samaria Region, HC 393/82, 37(4) P.D. 785, 793.
165 ld., art. 47. 166 id., art. 50. 167 Id., art. 52. 168Id., art. 56. `69 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, August 12, 1949, entered into force October 21, 1950 (entered into force for Israel in 1951) (hereinafter "IV Geneva Convention").
170 See COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949: GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 271 (UHLER AND COURSIER eds., 1958) ("[T]he question of the treatment of enemy private property in the territory of the belligerent is still, in general, governed by usage and by the Hague Regulations of 1907."). 171 IV Geneva Convention, art. 148. 172 Id., art. 146. i'3 Id., art. 147. 174 See Walter Kalin, The Guiding Principles on Internal Displacement - Introduction, 10 INT'L J. REFUGEE L, 557, 562 ("the drafters of these guidelines have been very careful to not go beyond what can be based on existing international law"); see also, "Guiding Principles on Internal Displacement Submitted by Francis Deng, Special Representative of the Secretary-General to the U.N. Commission on Human Rights," Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, U.N. Doc. E/CN.4/1998/53/Add.2, Introductions 3 ("These Principles reflect and are consistent with international human rights law and international humanitarian law.") [hereinafter "Guiding Principles"]. 175 An annotated guide has been prepared which provides cross-references between the various Principles enunciated in the "Guiding Principles" and the underlying sources of existing human rights and humanitarian law upon which the principles are based. See Walter Kalin, Annotations to the Guiding Principles on Internal Displacement, published by the Brookings Project and the American Society of International Law (ASIL), Studies in Transnational Legal Policy (June 2000). gliding Principles, supra note 174. 177 Resolution 1998/50 of the United Nations Human Rights Commission, U.N. Doc. E/CN.4/1998/L.68.
178 see, e.g., Report of the Representative of the Secretary-General, Mr. Francis M. Deng, Submitted Pursuant to Commission on Human Rights Resolution 1999/47, U.N. Doc. E/CN.4/2000/83 (26 January 2000) (the subtitle of the report is "Specific Groups and Individuals: Mass Exoduses and Displaced Persons - Internally Displaced Persons"). 179 Guiding Principles, supra note 174, Principle 21. guiding Principles, supra note 174, Principle 29: 1. Internally displaced persons who have returned to their homes or places of habitual residence or who have resettled in another part of the country shall not be discriminated against as a result of their having been displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public services. 2. Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and posses-
continued. sions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation. 181 D.p, O'CONNELL, THE LAW OF STATE SUCCESSION 239 (1956). 182 See, e.g., id., at 78, 99 (describing a successor state's obligation to respect private property rights acquired under the regime of the predecessor state); Francis Sayre, Change of Sovereignty and Private Ownership of Land, 12 AM. J. INT'L L. 475, 477 (1918) ("The general principle that change of sovereignty shall work no interference with private property rights ... has been well established by innumerable court decisions."); JAMES L. BRIERLY, THE LAw OF NATIONS 157 (Sir Humphrey Waldock ed., 6th ed. 1963) ("The recent practice of states ... tends to establish as a rule of international law the duty of a successor state ... to respect the acquired rights of private persons") (citing 1 LASSA OPPENHEIM & ARNOLD McNAIR, INTERNATIONAL LAW 168 (4th ed. 1928); George Kaeckenbeeck, The Protection of Vested Rights in International Law, 17 BRIT. Y.B. INT'L L. 1, 8-9 (1936) ("[That a] cession of territory therefore does not imply any change in the private rights of the inhabitants nor does it legitimate the confiscation of any of those rights [is] an actual and universally accepted rule of positive law"). 183 Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany to Poland, 1923, P.C.I.J. (ser. B) No. 6 (Sept. 10).
184 Id., at 36. The German settlers case concerned territory that Germany had ceded to Poland following World War I. Poland had evicted German settlers from the ceded area. The evicted German settlers objected that they had previously obtained contractually-based tenancies in the ceded area from the preceding Prussian authorities. The P.C.I.J. held that Poland was required, under the doctrine of acquired rights, to respect the pre-existing tenancies of the evicted German settlers. The Court characterized Polands' objection that it did not have to respect the property rights of the evicted German settlers as being "based on no principle and ... contrary to an almost universal opinion and practice." Id. ias Id., at 38. ("[N]o treaty provision is required for the preservation of the rights and obligations now in question"). lB6 Case Concerning Certain German Interests in Polish Upper Silesia, 1926 P.C.I.J. (ser. A) No. 7, at 42 (May 25). Accord The Mavrommatis Palestine Concessions case, 1928 P.C.I.J. (ser. A) No. 2, at 28. 187 United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). 188 Id., at 87. The Percheman case concerned the ceding of Florida to the United States by Spain, pursuant to a treaty. See Treaty of Amity, Settlement and Limits, Feb. 22, 1819, U.S.-Spain, 8 Stat. 252. Prior to the cession, the plaintiff, Juan Percheman, had received some 2,000 acres in Florida by grant from the Spanish Governor of East Florida. Following the cession, a U.S. governmental commission refused to recognize Percheman's claim, stating that title was insuffi- ciently documented. The Supreme Court overruled the commission's finding.
189 Id., at 86-87. 190 Id., at 87 (Marshall stating that even if Florida had "changed its sovereign by an act containing no [express treaty] stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change; it would have remained the same as under the ancient sovereign." In actual fact the Treaty of Amity did include, in Article VIII, a specific provision preserving property rights upon cession.). '9' See L. Benjamin Ederington, Property as a Natural Institution: The Separation of Property from Sovereignty in International Law, 13 Atvt. U. INT'L L. REV. 263 (1997) (n. 165: listing seven U.S. treaties of cession, all of which included provisions expressly protecting private property upon the change of sovereignty) (text at notes 166 and 167: listing two major American post-war treaties which also included provisions expressly protecting private property upon the change of sovereignty). 191 See id., at n. 169 (listing seven U.S. Supreme Court cases so holding between 1830 and 1891). '93 See, e.g., Coffee v. Groover, 123 U.S. 1, 9 (1887) ("It is no doubt the received doctrine that, in cases of ceded or conquered territory, the rights of private property in lands are respected"); Airhart v. Massieu, 98 U.S. (8 Otto) 491, 496 (1878) (following Jones v. McMasters, 61 U.S. (20 How.) 8, 21-22 (1857) ("The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired.... The title remains after the revolution, and erection of the new government, the same as before"); Strouther v. Lucas, 37 U.S. (12 Pet.) 410 (1838) ("by the law of nations ... the rights of property are protected even in the case of a conquered country, and held sacred and inviolable when it is ceded by treaty, with or without any stipulation to such effect").
'9a See, e.g., Ainsa v. New Mexico & Ariz.R.R. Co., 175 U.S. 76, 79 (1896) ("Private rights of property in land lying within a territory ceded by one independent nation to another ... are not affected by the change of sovereignty and jurisdiction, and are entitled to protection, whether they are complete and absolute titles, or merely equitable interests"); Cessna v. United States, 169 U.S. 165, 186 (1898) ("It is the duty of a nation receiving a cession of territory to respect all rights of property as those rights were recognized by the nation making the cession ..."). 195 A comprehensive review of state practice regarding the doctrine of acquired rights is beyond the scope of this article, and arguably may not even be necessary to establish the rule's status as custom, given its widespread acceptance. Nonetheless, for useful surveys of widespread state practice applying the doctrine of acquired rights, as well as surveys of the relevant scholarly literature confirming the view that state practice regarding this doctrine is virtually uniform in adhering to it, see, e.g., F.V. Garcia-Amador, Draft Articles on the Responsibility of the State for Injuries Caused in Its Territory to the Person or Property of Aliens, RECENT CODIFICATION OF THE LAW OF STATE RESPONSIBILITY FOR INJURIES TO ALIENS (F.V. GARCIA-AMADOR, LOUIS B. SOHN AND R.R. BAXTER eds., 1974); Ederington, supra note 191 (see text at notes 176-189 surveying international state practice) (of particular interest is text at note 181, discussing a case dating from the Palestine Mandate. There a British Mandatory court in Palestine reviewed the status of property titles obtained during the previous Ottoman regime. The court held that "the mere change of State, however, is not an act of confiscation ... [T]his theory supports the generally accepted view that the substitution of a new State for an old can make no difference to existing private rights in and over property." See Heirs of Prince Mohamed Selim v. Palestine, abstracted in 8 I.L.R. 123, 125 ( 1935-1937 Ann. Dig., Palestine; Land Court of Jaffa 1937). 196 Accord Restatement (Third) of Foreign Relations Law of the United States § 209 on State Succession, Reporters' Note 2, regarding "Private Property": ("When one state absorbs another state, or when territory is transferred from one state to another state, the property rights of private persons are ordinarily not affected. United States v. O'Donnell, 303 U.S. 501, 510, 58 S.Ct. 708, 714, 82 L.Ed. 980 (1938)"). '9' See The North Sea Continental Shelf cases, in ICJ REPORTS (1969), 37, 71.
'98 Hague Regulations, art. 46(2). 199 Patrick M. Norton, A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation, 85 AM. J. Irr1'� L. 474, 476 (1991) (the "beginning point for virtually every analysis of the 'premodern' law is the holding of the Permanent Court of International Justice in the Chorzow Factory case"). zoo Chorzow Factory Case (Ger. v. Pol.) (Indemnity), 1928 PCIJ (ser. A) No. 17 (Judgment of Sept. 13, 1928).
101 Id., at 47 (emphasis added). 202 See, e.g., IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, PART I 210 (1983). ). 103 Jose A. Ortiz, The lllegal Expropriation of Property in Cuba: A Historical and Legal Analysis of the Takings and a Survey of Restitution Schemes for Post-Socialist Cuha, 22 LOYOLA OF Los ANGELES INTERNATIONAL AND COMPARATIVE LAW REVIEW 321, 342 (2000). zoa Temple of Preah-Vihear Case (Merits) (1962) I.C.J. 6, at 36-37 (the International Court of Justice ruled that Cambodia (now Kampuchea) must leave an illegally-occupied temple com- pound in Thailand and restitute any religious artifacts it may have removed during the occupation). 205 BROWNLIE, supra note 202, at 210. 106 Chorzow Factory Case, supra note 200, at 47.
207 The diplomatic correspondence containing U.S. Secretary of State Hull's pronouncement is reproduced at 3 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 655-65 (1942). 108 Norton, supra note 199, at 475 ("[I]n recent years international tribunals have repeatedly held that international law requires full compensation for expropriations of foreign property"). z°9 The rule was apparently well-settled at least until World War II. See, e.g., id., at 476-477 ("Some sixty international claims tribunals sat between the early nineteenth century and the Second World War, many dealing with claims arising out of takings of alien property. Although their reasoning is sometimes obscure, none held that the appropriate measure of compensation was less than the full value of the property taken, and many specifically affirmed the need for full compensation" (footnotes omitted)). 210 See generally, e.g., S. Chatterjee, The Charter of Economic Rights and Duties of States: An Evaluation after 15 Years, 40 I.C.L.Q. 669, 675-77 (1991); F.V. GARCIA-AMADOR, THE EMERGING LAW OF INTERNATIONAL DEVELOPMENT: A NEW DIMENSION OF INTERNATIONAL ECONOMIC LAW 123-224 (1990). 211 See, e.g., Norton, supra note 199: "With [one] exception ... every recent arbitral tribunal that has considered the issue has affirmed that customary international law requires a state expropriat- ing the property of a foreign national to pay the full value of that property, measured, where possible, by the market price. The stated intention in each instance is to make the foreign national whole. Although no tribunal has expressly invoked the Hull formula, the result has been the same." Id. at 488 (footnotes omitted). "A tribunal's ratio decidendi represents what the arbitrators are prepared to defend in principle as the requirements of international law. Recent arbitral tribunals have spoken remarkably consistently in this regard, holding that international law requires, absent truly exceptional circumstances, that full compensation be paid for property expropriated from foreign nationals." Id., at 495. 212 See, e.g., JOSEPH G. STARKE, AN INTRODUCTION TO INTERNATIONAL LAW 362 (8th ed. 1977) ([A] successor state can always displace existing rights and titles by altering the former municipal law, unless in doing so, it breaks some other independent duty under international law, for instance by expropriating the property of aliens arbitrarily, and not for a public purpose"). Garcia-Amador has suggested that the three criteria to use in determining whether an expropri- ation is "arbitrary," and hence invalid under international law, are: "the motives and purposes of the expropriation; the method or procedure adopted to effect it; and above all, the compensa- tion given for the expropriated property." See F.V. Garcia-Amador, supra note 195, at 49. 213 See, e.g., 1 LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE 155 & n.5 (Hersch Lauterpacht ed., 6th ed. 1947) ("The successor State cannot avoid its obligations [under international law]
continued. by enacting legislation either of a discriminatory character or nominally affecting all the residents of the territory"). 214 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987) § 712 [hereinafter "RESTATEMENT OF FOREIGN RELATIONS"]. 215 65 International Law Association, Conference Report (1992), reprinted in 87 AM. J. INT'L L. 157 (1993).
216 ¡d. 117 RESTATEMENT OF FOREIGN RELATIONS, supra note 214. z'$ Id. at § 711, comment d. z'9 Charter of Paris for a New Europe, Nov. 21, 1990, 30 I.L.M 190, 194 (1991).
220 International Law Association, Committee on the Enforcement of Human Rights Law, Final Report on the Status of the Universal Declaration of Human Rights in National and International Law, INTERNATIONAL LAW ASSOCIATION, REPORT OF THE SIXTY-SIXTH CONFERENCE, S2S, 544-549 (Buenos Aires, 1994), reproduced in INTERNATIONAL HUMAN RIGHTS : PROBLEMS OF LAW, POLICY AND PRACTICE 166 (RICHARD B. LILLICH AND HURST HANNUM eds., 3rd ed. 1995). 221 �d, at 169. 222 The Right of Everyone to Own Property Alone as Well as in Association with Others, Final Report Submitted by Mr. Luis Valencia Rodriguez, Independent Expert, E/CN.4/1993/15 (18 Dec. 1992). 223 �d_ at 85.
224 Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law, adopted by the Commission on Human Rights of the United Nations Economic and Social Council on January 18, 2000, U.N. Doc. E/CN.4/2000/62. 225 Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, final report submitted by Mr. Theo van Boven, Special Rapporteur, to the Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, issued July 2, 1993, U.N. Doc. E/CN.4/Sub.2/1993/8. 226 Id., arts. 21, 22 (emphasis added).
117 Atef Kubursi, "An Economic Assessment of Total Palestinian Losses," in Sami Hadawi, supra note 26, at 183, cited in Rashid Khalidi, "Toward a Solution," in PALESTINIAN REFUGEES: THEIR PROBLEM AND FUTURE at 24-25 (1994), and cited in SALIM TAMARI, supra note 6, at 45-46; see also Atef Kubursi, PALESTINIAN LOSSES IN 1948: THE QUEST FOR PRECISION, at 22 (1996) [herein- after "Quest for Precision"] (revisiting the 1988 calculations and arriving at the same figure). 228 ATEF KUBURSI, Quest for Precision, supra note 227, at 22. 229 Id., at 7. z3o Id., at 22 (Kubursi revisiting his 1988 calculations and arriving at the same figure). 211 Id., at 7. 232 Id., at 22. 133 Id., at 22-23.
234 These monetary figures are not intended to address the separate, but important, question of reparations for non-property-related war damages owed by Israel for injuries wrongfully incurred towards Palestinians from the pre- and post-1948 period.