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Private Claims to Property Rights in the Future Israeli-Palestinian Settlement

Published online by Cambridge University Press:  27 February 2017

Eyal Benvenisti  and
Eyal Zamir
Eyal Benvenisti
Affiliation:
The Hebrew University of Jerusalem
Eyal Zamir
Affiliation:
The Hebrew University of Jerusalem
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Extract

The Declaration of Principles on Interim Self-Government Arrangements, signed by the Government of Israel and the Palestine Liberation Organization (PLO), and the exchange of letters between the PLO Chairman and Israel’s Prime Minister, both agreed upon in September 1993, have set the stage for a process of reconciliation and the settlement of the long and bitter conflict over Palestine/Eretz Yisrael. The Cairo Agreement on the Gaza Strip and the Jericho Area established the date—May 4, 1999—by which a permanent agreement must enter into effect. So far, the negotiations between the two parties have concentrated mainly on institutional arrangements, such as the nature of the Palestinian administration during the interim period, and other matters of public interest. At this stage, the parties are not expected to address matters that directly affect the interests of individuals, including the right of individuals to regain possession of property left behind because of the hostilities, or to receive compensation for such property. The discussion of most of these private claims has been deferred to the final stage of the negotiations, concerning a permanent status agreement, which is due to commence no later than May 4, 1996.

Type
Research Article
Information
American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 295 - 340
Copyright
Copyright © American Society of International Law 1995

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References

1 Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.-PLO, reprinted in 32 ILM 1525 (1993) [hereinafter DOP].

2 Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Isr.-PLO, reprinted in 33 ILM 622 (1994) [hereinafter Cairo Agreement].

3 Britain governed Palestine/Eretz Yisrael under a mandate from the League of Nations. See Terms of the British Mandate for Palestine Confirmed by the Council of the League of Nations, July 24, 1922, 3 League of Nations O.J. 1007 (1922) (entered into force Sept. 29, 1923).

4 See Resolution Concerning the Future Government of Palestine, GA Res. 181 (II) (Nov. 29, 1947). The partition plan was accepted by the Zionist leadership but rejected by the Arab leaders. For statements on behalf of the Jewish Agency and the Arab states, see UN GAOR, 2d Sess., Ad hoc Committee on the Palestinian Question 5–11 (the Arab position) and 12–19 (the Zionist position) (1947); id., 2 Plenary Meetings 1425, 1426, 1427, reprinted in Ruth Lapidoth & Moshe Hirsch, The Arab-Israel Conflict and Its Resolution: Selected Documents 55–60 (1992).

5 General Armistice Agreement, Feb. 24, 1949, Egypt-Isr., 42 UNTS 252; General Armistice Agreement, Mar. 3, 1949,Jordan-Isr., 42 UNTS 304.

6 For various estimates, see Benny Morris, The Birth of the Palestinian Refugee Problem, 1947–1949, App. I, at 297–98 (1987).

7 For a list of these villages and a map indicating their locations, see Morris, supra note 6, at X–XI, XIV–XVIII.

8 By the end of the British Mandate, the Jewish population numbered some 600,000 people (many of whom had fled from Europe during and after World War II), while the Palestinian population consisted of approximately 1.2 million people. Today, the Arab population within Israel constitutes close to 18% of a total population of approximately 5.2 million. 1993 Statistical Abstract of Israel 43.

9 For the Israeli estimate, see Israel Govt Y.B. 5715, at 74 (1955, in Hebrew). In 1951 the UN Conciliation Commission for Palestine (CCP) estimated the cultivable lands abandoned by Arabs to be 4,574 square kilometers. Progress Report of the United Nations Conciliation Commission for Palestine, UN GAOR, 6th Sess., Supp. No. 18, Ann. A, para. 8, UN Doc. A/1985 (1951) [hereinafter Progress Report]. In 1952 the CCP embarked on a 14-year study on the identification and evaluation of Arab refugees' immovable property left in Israel. The published conclusions of a 35-page paper referred only to the methods used to identify and evaluate potential claims to ownership, but did not contain any conclusions about the estimated value of the property. Working Paper Prepared by the Commission's Land Expert on the Methods and Techniques of Identification and Valuation of Arab Immovable Property Holdings in Israel, UN Doc. A/AC.25/W.84 (1966). According to one author, the CCP decided not to reveal its findings so as not to fuel yet another controversy. David P. Forsythe, United Nations Peacemaking: The Conciliation Commission for Palestine 117 (1972). The representatives of Egypt, Jordan, Lebanon and Syria responded quickly to the CCP's assessment, severely criticizing its methods. See UN Doc. A/AC.25/W.85 (1966). Apparently, Israel did not comment on the paper. Both the 1951 and the 1966 assessments raise a number of serious questions. For example, in both evaluations the CCP referred to many uncultivated areas as Arab-owned, despite the fact that under the Ottoman Land Law (in force in Palestine at the relevant time), such lands were not considered as private land but, rather, belonged to the state. The 1951 report mentions a total of 16,324 square kilometers of “Arab lands” within Israel, based on maps prepared by the British administration for the implementation of the Rural Property Tax Ordinance in Palestine. But these maps delimited the “village boundaries” for taxation purposes and had nothing to do with ownership (except for describing the state of cultivation, which was relevant to the recognition of private rights to the land). On the issue of evaluation and identification, see also part III.6 infra.

10 The CCP estimated the total value of urban immovable property abandoned by the Palestinian refugees to be about 30 million Palestinian pounds, which at that time (1951) was equivalent to $84 million. Progress Report, supra note 9, paras. 16–19.

11 The refugees themselves rejected any measures, such as the building of stone houses, that might imply settling down in a new territory. Avi Plascov, The Palestinian Refugees in Jordan 1948–1957, at 66–67 (1981).

12 The United Nations Relief and Works Agency for Palestine Refugees, established under GA Res. 302 (IV) of December 8, 1949. On the work of UNRWA, see Edward H. Buehrig, The UN and the Palestinian Refugees (1971).

13 In Jordan there were about 930,000 refugees, in Lebanon about 290,000, and in Syria about 280,000. About 450,000 of these Palestinians resided in refugee camps. These data are quoted in Palestinian Academic Society for the Study of International Affairs, PASSIA Diary, 1993, at 170. They do not include the Palestinians who lived at that time in the Gulf states. In the early 1990s, after the Persian Gulf war, Kuwait forced over 300,000 Palestinians who had settled there to emigrate. Most of them left for Jordan. See Rashid I. Khalidi, Observations on the Right of Return, J. Palestine Stud., Winter 1992, at 29, 37; Middle East Watch, The Tragedy of the Remaining Palestinian Families in Kuwait (1991), reprinted in 6 Palestine Y.B. Intl L. 87 (1990/91).

14 The main concentrations of these lands 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.

15 Some of the Jewish-owned lands in these areas were not inhabited, but most were. Some of the inhabitants had been forced to leave their property during the turbulence of the 1920s and 1930s, and most of them (several thousand, mainly from the Jewish quarter of Jerusalem and the Gush Etzion settlements south of Jerusalem) were displaced in the 1948 war. Yet, unlike the Palestinian refugees, these Jewish refugees were rehabilitated and resettled with the help of the Israeli authorities, which prevented the creation of a permanent problem.

16 Other areas, namely, the Sinai Peninsula and parts of the Golan Heights, were also occupied; however, neither is relevant to our discussion.

17 Law and Administration Order (No. 1), 5727-1967 (June 28, 1967). In 1980 the Israeli parliament enacted Basic Law: Jerusalem the Capital of Israel, 34 Laws of the State of Israel [L.S.I.] 209, which declared “unified Jerusalem” to be the capital of Israel. On the legal status of the West Bank, the Gaza Strip and East Jerusalem since 1967, see part 11.3(a) infra.

18 Estimates as to the number of people who left the West Bank pursuant to the 1967 war vary from 100,000 to 400,000. The estimates as to the Gaza Strip vary from 40,000 to 60,000. See Aryeh Shalev, Autonomy—Problems and Possible Solutions 164 (1979, in Hebrew); Ya'acov Lifshitz, Economic Development in the Administered Areas, 1967–1969, at 31 (1970, in Hebrew); Moshe Dayan, Story of My Life 402–03 (1976).

19 See part II.3(b) infra.

20 See id., (c) and (d) infra.

21 See id., (d) and (e) infra.

22 See note 1 supra. For a general analysis of the Declaration, see Eyal Benvenisti, The Israeli-Palestine Declaration of Principles: A Framework for Future Settlement, 4 Eur. J. Int'l L. 542 (1993); Raja Shihadeh, Can the Declaration of Principles Bring about a “Just and Lasting” Peace?, id. at 555; Antonio Cassese, The Israel-PLO Agreement and Self-Determinalion, id. at 564; Joel Singer, The Declaration of Principles on Interim Self-Government Arrangements, 1 Justice (Int'l Ass'n of Jewish Lawyers and Jurists) 4 (1994).

23 See note 2 supra.

24 4 L.S.I. 68. On the circumstances that led to this legislation, see Menachem Hofnung, Israel—Security Needs vs. the Rule of Law 159–74 (1991, in Hebrew).

25 Habab v. Custodian of Absentees' Property, 10 Piskei Din [P.D.] 912, 919 (1956); Kleiner v. Estate Tax Authority, 14 P.D. 2521, 2539 (1960); Levy v. Estate of Mahmud Mahmud, 40(i) P.D. 374, 383, 386 (1986). The Supreme Court viewed the absentee as having an expectation that one day the custodian would release her property, which gave her standing in court.

26 Israel Govt Y.B., supra note 9, at 47. Another law, the Land Requisition (Validation of Acts and Compensation) Law, 5713-1953, 7 L.S.I. 43, authorized the vesting of real property that, on April 1, 1952, was not in the possession of its owners and was used for essential development needs, settlements or security purposes by the Development Authority. Compensation for such requisitions was given in the form of substitute land or money. In accordance with this law, some 325 square kilometers were transferred to the Development Authority. Some of these lands may have previously been administered by the Custodian of Absentees' Property. See also David Kretzmer, The Legal Status of the Arabs in Israel 60–66 (1990); Hofnung, supra note 24, at 170–72; Sabri Jiryis, Settlers' Law: Seizure of Palestinian Lands, 2 Palestine Y.B. Int7l L. 17(1985); Don Perez, Israel and the Palestinian Arabs 141–91(1958).

27 In view of these (and other) characteristics, it is not surprising that when English courts dealt with this Israeli legislation, they viewed it as parallel to the British legislation dealing with trade with the enemy, and relied on British case law regarding the Custodian of Enemy Property. See, e.g., Jabbour v. Custodian of Absentee's Property of State of Israel, [1954] 1 All E.R. 145, 157. See also Arab Bank Ltd. v. Barclays Bank (Dominion, Colonial and Overseas), 1954 App. Cas. 495. An analogy between the Absentees' Property Law and the Trading with the Enemy Ordinance was also drawn by the Israeli Supreme Court in a recent case. Golan v. Special Comm. under sec. 29 of Absentees' Property Law, 5710-1950 (Apr. 7, 1994, not yet published). On the Trading with the Enemy Law, see also part 11.2(b) infra.

28 27 L.S.I. 176.

29 See in greater detail part 11.3(c) infra.

30 Further support for the rationale of expropriation for public purposes may possibly be found in the fact that, at the same time that it granted the right to compensation, the 1973 law abrogated the right to demand the release of the property vested in the custodian (sec. 18). Nevertheless, the authorities' policy is to refrain from implementing this provision strictly and the custodian and the Advisory Committee, as a matter of fact, consider applications for the release of absentees' property. See, e.g., Kokern v. Committee Acting under sec. 29 of Absentees' Property Law, 5710-1950, 34(h) P.D. 326 (1980); Estate of Mahmud Mahmud (Abu Sharif) v. El-Said, [1982] 2 Psakim Mehoziim [law reports of Israeli district courts' decisions] 322.

31 See supra note 5.

32 The “Second Arab-Palestinian Conference” was held in Jericho on December 1, 1948; it decided to unite Palestine with the Kingdom of Jordan. The Jordanian Government agreed to the unification on December 7, 1948, and on December 13 the Jordanian parliament approved it. The step of unification was approved finally by the Jordanian National Assembly on April 24, 1950. See 2 Whiteman, Digest 1163–67 (1963). On the objection of residents of the West Bank to the annexation, see Plascov, supra note 11, at 12–16.

33 Eyal Benvenisti, The International Law of Occupation 3–6 (1993).

34 Yehuda Z. Blum, The Missing Reversioner; Reflections on the Status ofjudea and Samaria, 3 Isr. L. Rev. 279, 289–93 (1968). Britain formally recognized the unification of the two banks of the Jordan River, but as to the inclusion of East Jerusalem in the unification Britain recognized only the de facto existence of Jordanian rule. See notice of the British Government quoted by Whiteman, supra note 32, at 1167–68.

35 The Arab League agreed to refrain from demanding the return of the situation to its original state after receiving a clarification from the King of Jordan that the step of annexation would not affect the final settlement of the dispute in Palestine/Eretz Yisrael. On the annexation and responses to it, see Blum, supra note 34; Allan Gerson, Israel, The West Bank and International Law 77–78 (1977); Peter Malanczuk, Israel: Status, Territory and Occupied Territories, in [Installment] 12 Encyclopedia of Public International Law 149, 171 (Rudolf Bernhardt ed., 1990). The nonrecognition of the annexation was also reflected in a decision of an Egyptian court that refused to give force to ajudgment handed down in Nablus in the name of King Abdullah. See Arab Bank v. Ismail, 17 I.L.R. 312 (Tribunal of Port Said, 1950).

36 See Law Concerning Laws and Regulations in Force in the Two Banks of the Hashemite Jordan Kingdom, No. 28, 1950, Official Gazette No. 1093, Jan. 8, 1952, at 2.

37 Palestine Gazette No. 923, Sept. 5, 1939, Supp. No. 1, at 95. For an analysis of the ordinance, see Arno A. Blum & I. Roskin-Levy, The Law Relating to Trading with the Enemy (1940).

38 2 & 3 Geo. 6, ch. 89. Similar ordinances were enacted in other territories under British rule. On the English legislation, see 49 Halsburvs Laws of England, War and Armed Conflict, paras. 148–58, at 54–66 (4th ed. 1984). Comparable legislation was passed in the United States, Britain's ally in World War II. See Martin Domke, Trading with the Enemy in World War II (1943); Martin Domke, The Control of Alien Property (supp. to 1943 book, 1947). These books contain a comparative review of trading with the enemy laws enacted in various countries during World War II. The British and American legislation was based on legislation enacted in World War I. On this legislation, see Ronald F. Roxburgh, German Property in the War and Peace, 37 Law Q. Rev. 46(1921); Charles H. Huberich, The Law Relating to Trading with the Enemy (1918). See also William F. Trotter, The Law of Contract During War (1914, Supp. 1915); Fredrick D. Farrer, The Forfeiture of Enemy Pre-War Property, 37 Law Q. Rev. 218, 337 (1921).

39 Arnold McNair & Arthur D. Watts, The Legal Effects of War 332 (4th ed. 1966); Huberich, supra note 38, at 29–30.

40 The Trading with the Enemy Ordinance begins with the words: “With a view to preventing the payment of money to enemies and of preserving enemy property in contemplation of arrangements to be made at the conclusion of peace.” Seealsoln re Münster (Enemy), [1920] 1 Ch. 268, 278–79.

41 The temporary nature does not mean that the vesting will last only a short time, nor does it necessarily imply that at the end of the war the property will be returned to its original owners. The state of war may last for many years, and the fate of the property at the end of the war depends on the arrangements agreed upon in the peace treaty (as we shall see in part III.3 and notes 42–44 infra).

42 Daimler Co. v. Continental Tyre & Rubber Co. (Great Britain), [1916] 2 App. Cas. 307, 347; Hugh Stevenson & Sons Ltd. v. AktienGesellschaft Fur Co., [1954] 2 All E.R. 50, 55. See minority view of Lord Keith in Bank voor Handel en Scheepvaart N.V. v. Administrator of Hungarian Property, [1954] 1 All E.R. 969, 992–96. A similar approach is reflected in the American judgment Techt v. Huges, 29 N.Y. 222, 128 N.E. 185 (1920). See also Edwin M. Borchard, Enemy Private Property, 18 AJIL 523 (1924); William E. Hall, A Treatise on International Law 521–26 (1924).

43 In the Bank voor Handel case, the English House of Lords ruled: “He [the custodian] is not the agent or the trustee of the aliens, enemy or friendly, who were owners of the property before it came into his hands.” [1954] 1 All E.R. at 991; see also id. at 987–90. Twelve years earlier, the Supreme Court of Palestine had dealt with the same question and ruled that “there is nothing to limit the word ‘vest’ to anything less than ownership.” The Court added that “while it is no doubt true that the Custodian is … in a sense in fiduciary capacity with regard to these properties, that need have no effect upon the question as to whether or not for the time being he is the owner of these properties which are vested in him.” Pritzker v. Custodian of Enemy Property, 1944 Annotated L.R. 376, 380. See also In re Münster, [1920] 1 Ch. at 277–78; McNair & Watts, supra note 39, at 333–34.

44 The Versailles Treaties of 1919, and the recognition of the importance of private and public property to the war effort during times of total and continuous warfare, brought about a diminution of the protection that the various states, as well as international law, granted the property of the enemy and its citizens situated within their territory. The defeated nations were made to return enemy property seized during the war. However, the assets seized by the Allied powers remained in their hands, as compensation for their losses during a war that had been forced upon them. Thus, Article 297 of the Versailles Treaty recognized the right of the Allies to assets and rights that belonged to German citizens, for the purpose of defraying German debts, and Germany was meant to compensate its citizens for their loss. Borchard, supra note 42, at 525. On the effect of the Versailles Treaty on German assets in Britain, see Roxburgh, supra note 38, at 56–62. The same principle was accepted in the post-World War II peace treaties. McNair & Watts, supra note 39, at 334–36; F. A. Mann, Enemy Property and the Paris Peace Treaties, 64 Law Q. Rev. 492 (1948); Andrew Martin, Private Property, Rights and Interests in the Paris Peace Treaties, 24 Brit. Y.B. Int'l L. 273 (1947). The prevailing view after the two wars was that, beyond the specific agreements on the fate of assets taken during the war, these arrangements reflected mutual recognition of the legal validity of the practice of taking over property in wartime. 2 Lassa Oppenheim, International Law 328 (Hersch Lauterpacht ed., 7th ed. 1948).

45 See Oppenheim, supra note 44; 10 Whiteman, supra note 32, at 98–131 (1968). Today, it appears that only economic considerations—considerations of mutuality or the protection of the prestige of the local market—prevent a state from harming enemy subjects' property in its territory. In the United States, the President is authorized to prohibit transactions in enemy property, invalidate transactions that have been made, and regulate the property of foreigners under the International Emergency Economic Powers Act of 1977. 50 U.S.C. § 1702 (1988). The President's absolute control of this property is explained by the fact that it constitutes a bargaining chip for the settlement of international disputes. Dames & Moore v. Regan, 453 U.S. 654 (1981). Indeed, as the confrontation between the United States and Iran in 1979–1980 proved— when the freezing of Iranian assets in the United States caused the Iranians to agree to set up a joint claims tribunal—this chip is, at times, more valuable than military force. See also part 111.5(b) infra.

46 The second section of the Fourth Geneva Convention, which lists the state's duties toward enemy citizens on its soil, does not mention protection of their property, despite the wartime practice. Article 46(2) is the only one to require that “[r]estrictive measures affecting [protected persons'] property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.” Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Fourth Geneva Convention]. As the commentary suggests, this provision is “somewhat foreign to the real purpose of the Convention.” Noting that the Diplomatic Conference had emphasized that the object of the Convention was to protect people rather than property, the commentary states: “Consequently the 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, especially Article 23(g) and (h).” Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 271 (Oscar Uhler & Henri Coursier eds., 1958).

47 Official Gazette No. 1032, Aug. 16, 1950, at 447. This proclamation preceded Jordan's “annexation” of the West Bank, but it was relied upon by the Jordanian authorities after the annexation when acting according to the Trading with the Enemy Ordinance.

48 For a detailed review of the Jordanian practice, see Eyal Zamir & Eyal Benvenisti, The Legal Status of Lands Acquired by Israelis Before 1948 in the West Bank, the Gaza Strip and East Jerusalem 51–56 (1993, in Hebrew).

49 On the international law rules regarding private property belonging to absentees in territory under occupation, see part 11.3(b) infra, and the references cited there.

50 See Cairo Agreement, supra note 2, Ann. II, Art. II, sec. B(28)(c). See also part III.2 infra.

51 On the legal status of the Gaza Strip between 1948 and 1967, see Carol Farhi, On the Legal Status of the Gaza Strip, in Military Government in the Territories Administered by Israel 1967–1980—The Legal Aspects 61 (Meir Shamgar ed., 1982).

52 Official Gazette No. 2, Mar. 31, 1950, at 43.

53 Order No. 439 of the Administrative Governor, Official Gazette No. 63, May 1, 1956, at 1472.

54 The order also contained detailed provisions on the detachment of owners from their property and its management by the Director General. It allowed for the sale of perishable goods and assets whose maintenance was too costly. With the approval of the Governor General, other property could be sold as well. However, we have no information about the exercise of this authority, at least not that it was exercised to a significant extent.

55 The order applied, inter alia, to the property of Jews living in the territory occupied by the Egyptian forces (sec. 1(1)) and to that of any branch, agency or office of any corporation that was subject to the control of people acting against the interests of the Arab forces in Palestine (sec. 1(4)). Section 4 authorized the Director General to use the property to maintain its owners and their dependents (albeit no Jews were in fact left in the Gaza Strip during the Egyptian occupation).

56 Under Article 2(2) of the Fourth Geneva Convention, supra note 46, its provisions apply only to “occupation of the territory of a High Contracting Party.” Israel has never recognized that the West Bank and the Gaza Strip were territories of Jordan and Egypt, respectively. Israel's concern was that formal recognition of the applicability of the Convention might have implied recognition of the former administrations' sovereignty. See Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government—The Initial Stage, in Military Government in the Territories Administered by Israel, supra note 51, at 13.

57 Shamgar, supra note 56; Meir Shamgar, The Observance of International Law in the Administered Territories, 1 Isr. Y.B. Hum. Rts. 262(1971). See also Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (the West Bank) and the Gaza Strip, 24 Isr. L. Rev. 485, 492–93 (1990). For criticism of this claim, see Yoram Dinstein, The International Law of Belligerent Occupation and Human Rights, 8 Isr. Y.B. Hum. Rts. 104, 107 (1978); Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 62–66(1990).

58 See SC Res. 237 (June 14, 1967) (adopted unanimously) (“Considering that all the obligations of the [Fourth Geneva Convention] should be complied with by the parties involved in the conflict”); GA Res. 2252 (ES-V) (July 4, 1967) (same formula). For the U.S. position, see, e.g., U.S. Dep't of State, Country Reports on Human Rights Practices for 1987, at 1189 (1988) (“The United States recognizes Israel as an occupying power in all of these territories and therefore considers Israeli administration to be subject to the Hague Regulations of 1907 and the 1949 Fourth Geneva Convention …”). For the position of the Red Cross, see, e.g., International Committee of the Red Cross, Annual Report 1987, at 83–84(1988) (“[T]he ICRC considers that the conditions for application of the Fourth Convention are fulfilled in all of the occupied territories, namely the West Bank, the Gaza Strip, Golan and East Jerusalem, whatever status the Israeli authorities ascribe to those territories.”). See also Roberts, supra note 57, at 69.

59 On the changes brought about by the Israeli-Palestinian accords, see infra part III. 2.

60 N.Y. Times, Aug. 1, 1988, at A1, 28 ILM 1637(1988).

61 Treaty of Peace, Oct. 26, 1994, Isr.-Jordan, reprinted in 34 ILM 43 (1995). For example, Article 3 refers to the West Bank as “territories that came under Israeli military government control in 1967.”

62 James Crawford, The Creation of the State of Palestine: Too Much too Soon?, 1 Eur. J. Int'l L. 307 (1990); Malanczuk, supra note 35, at 173; Frank L. M. van de Craen, Palestine, in [Installment] 12 Encyclopedia of Public International Law, supra note 35, at 275, 279.

63 On the DOP and its meaning, see supra note 22, and infra part III.2.

64 On the early stages of the occupation, see Shamgar, supra note 56. On the legal system in the West Bank during the first decade, see Moshe Drori, The Legal System injudea and Samaria: A Reineic of the Previous Decade with a Glance at the Future, 8 Isr. Y.B. Hum. Rts. 144 (1978).

65 The Proclamation concerning Law and Administration (No. 2) (June 7, 1967), Kovetz Minsharim, Zavim & Minuiim [K.M.Z.M.] (Bulletin of Proclamations, Orders & Nominations) No. 1, at 3, issued by the Military Commander of the West Bank, declares:

The law in existence in the Region on June 7, 1967, shall remain in force, insofar as it does not in any way conflict with the provisions of this Proclamation or any other proclamation or order which may be issued by me, and subject to modifications resulting from the establishment of government by the Israeli Defence Forces [IDF] in the Region.

A similar proclamation was issued in the Gaza Strip.

66 Ha'etzni v. State of Israel (Minister of Defence), 34(iii) P.D. 595 (1980).

67 Law and Administration Order, supra note 17.

68 “The term ‘annexation’ is out of place,” wrote the Israeli Minister of Foreign Affairs to the UN Secretary-General. “The measures adopted relate to the integration of Jerusalem in the administrative and municipal spheres, and furnish legal basis for protection of the Holy Places.” UN Doc. S/8052 (1967).

69 Abu Salakh v. Minister of Interior, 37(ii) P.D. 718 (1983) (approving Justice Cohen's opinion in Ruweidi v. Military Court of Hebron, 24(ii) P.D. 419 (1970)). But cf. Justice Kahan's opinion in Ruweidi, holding the 1967 declaration as effecting annexation.

70 The High Court of Justice referred to this Basic Law, supra note 17, as reflecting Israel's resumption of sovereignty over unified Jerusalem. Ne'emaney Har-Habait v. Attorney General, 47(v) P.D. 221 (1994).

71 See SC Res. 252 (May 21, 1967), 267 (July 3, 1969), 298 (Sept. 25, 1971), 446 (Mar. 22, 1979), 476 (June 30, 1980); GA Res. 2253 (ES-V)(Jul. 4, 1967), 2254 (ES-V) (Jul. 14, 1967), 31/106A (Dec. 16,1976), 33/113 (Dec. 18,1978).

72 SC Res. 478 (Aug. 20, 1980). See a to GA Res. 36/120E(Dec. 10, 1981), 37/123C (Dec. 16. 1982), 39/ 146C(Dec. 14, 1984).

73 For estimates, see note 18 supra.

74 Exact data as to the scale of the abandoned property are unavailable. Shalev, supra note 18, at 118–19, states that there are about 106,000 acres of absentees' lands in the West Bank, and about 500 acres in the Gaza Strip. The Commissioner of Abandoned Property reported in 1977 on 10,900 buildings of absentees, out of which about 9,400 were entrusted to relatives of the absentees, and the rest let to local residents and government offices. Judea and Samaria Headquarters, Report of the Tenth Year of Government 94 (1977, in Hebrew). Shalev, supra, at 118, indicates that few Israeli settlements in the Jordan Valley were established on absentees' lands.

75 Morris Greenspan, The Modern Law of Land Warfare 306–08 (1959); U.S. Dept of the Army, The Law of Land Warfare, para. 399 (Field Manual No. 27–10, 1956). The Allied forces in World War II conformed to these rules. See, as to Italy, C. R. S. Harris, Allied Military Administration of Italyb 1943–1945, at 6, 18, 450–51, App. I (reproducing Proclamation No. 6) (1957); as to Germany, F. S. V. Donnison, Civil Affairs and Military Government, North-West Europe 1944–1946, at 444–47 (1961); as to the Far East, F. S. V. Donnison, British Military Administration in the Far East 1943–46, at 230–32 (1956).

76 Greenspan, supra note 75, at 308.

77 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; Order Concerning Abandoned Assets (Private Property) (The Gaza Strip and North Sinai) (No. 42), 5272-1967, K.M.Z.M. No. 2, at 122, replaced by Order Concerning Abandoned Assets (Private Property) (Gaza Strip) (No. 421), 5732-1972, K.M.Z.M. No. 32, at 2546.

78 In practice, absentees who do not reside in enemy countries are allowed to execute transactions in their “abandoned property” even without returning to the region.

79 On possible permanent solutions, see part III.5 and 6 infra. On the interim arrangements in the Gaza Strip and the Jericho Area in accordance with the Cairo Agreement, see part III.2 infra.

80 24 L.S.I. 144.

81 From this negatively phrased provision, one may infer that these individuals are still considered absentees with regard to the property they left in 1948 that is located within the boundaries of Israel. Furthermore, absent a provision preventing this unsatisfactory result, property within East Jerusalem belonging to Palestinian residents of the West Bank, excluding East Jerusalem, became “absentees' property” in 1967, and was vested in the Israeli Custodian of Absentees' Property. See part 11.2(a) supra. The Israeli Supreme Court has expressed its displeasure with the application of the Absentees' Property Law to these properties and, in fact, the Custodian of Absentees' Property occasionally releases them to their original owners. However, there are assets in this category that were vested in the custodian and have not been released. See Levy v. Estate of Mahmud Mahmud, supra note 25; Golan v. Special Comm. under sec. 29 of Absentees' Property Law, supra note 27.

82 From the point of view of international law (as well as Israeli law), Israel probably did not have to compensate the original owners for expropriations carried out by the Jordanian authorities. However, out of concern for the interests of these people, and with a view to emphasizing the finality of the arrangements regarding the status of East Jerusalem, Israel preferred to bear the costs of this compensation.

83 Examination of the validity of these expropriations, and of the legality of the policy of allocating the expropriated lands for the settlement of Jews alone, falls beyond the scope of our discussion. According to the view that the law of belligerent occupation applies to East Jerusalem, one may argue that these expropriations contradicted the rule prohibiting the expropriation of private property (absentees' lands included), except for the needs of the local population and in accordance with preexisting (Jordanian) law. As to the settlement of the expropriated lands by Jews only, see Kretzmer, supra note 26, at 80–83.

84 See Meron Benvenisti, The Torn City 154 (1976).

85 See part 111.4 and 5 infra.

86 These Palestinians have not realized their right to compensation for the property left in the western part of Jerusalem. See part 11.2(a) supra.

87 See part III infra. The question of private property claims will probably be addressed as part of these negotiations.

88 see part 11.3(a) supra. On the change in the legal status of the Israeli administration of the West Bank and the Gaza Strip after the signing of the Declaration of Principles, see Benvenisti, supra note 22, at 546–51.

89 Blum, supra note 34; Elihu Lauterpacht, Jerusalem and the Holy Places (1968); Stephen M. Schwebel, What Weight to Conquest?, 64 AJIL 344 (1970); part 11.3(a) supra.

90 See part 11.2(b) supra.

91 GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 95 (1957).

92 See part 11.3(b) supra, and references cited in note 75 supra. Note that this argument applies both to the Jordanian and Egyptian control of the territories before 1967 and to the Israeli administration since 1967.

93 See part 11.3(a) and (c) supra.

94 See also part III.2 infra.

95 See also Moshe Drori, The Israeli Settlements injudea and Samaria: Legal Aspects, in Judea, Samaria and Gaza: Views on the Present and Future 44, 52 (Daniel J. Elazar ed., 1982).

96 Similarly to East German citizens who inhabited expropriated property of West Germans. See infra text at and notes 158–62.

97 For these reasons, Israel can be expected adamantly to oppose such an arrangement. See, e.g., Rony E. Gabbay, A Political Study of the Arab-Jewish Conflict: The Arab Refugee Problem 280–308 (1959); M. Benvenisti, supra note 84, at 205; Danny Rubinstein, The Fig Tree Embrace: The Palestinians' “Right of Return” 11 (1990, in Hebrew). As we saw in part 11.2(a) and 3(c) above, even when Israel sought to resolve the problem of property situated within Israel previously owned by Arab residents of East Jerusalem, while strengthening and finalizing the unification of Jerusalem, it did not attempt to return the lands to their original owners but, rather, provided a limited right to monetary compensation. See also part III.4, 5, 6 infra.

98 Hague Regulations annexed to the Convention [No. IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Art. 43, 36 Stat. 2277, 1 Bevans 631. On this article, see, inter alia, Benvenisti, supra note 33, at 7–31; Dinstein, supra note 57, at 111–14; Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order 756–71 (1961); Greenspan, supra note 75, at 223–27; von Glahn, supra note 91, at 94–105.

99 See, e.g., von Glahn, supra note 91, at 178; Greenspan, supra note 75, at 288.

100 Order Concerning Governmental Property (West Bank.) (No. 59), 5727-1967, K.M.Z.M. No. 5, at 162.

101 An alternative line of argument, which primarily applied to Israelis' property that was not vested in, or administered by, the Jordanian custodian, was that this property was “abandoned property,” as defined in the Order Concerning Abandoned Assets (discussed in part 11.3(b) supra). This order applies, inter alia, to property that was purchased before 1948 by Jews who did not immigrate to Israel. These Jews were not considered to be “enemy” by the Jordanian authorities and, therefore, their property was not subject to the trading with the enemy legislation. To the extent that the property of people like the latter is not currently used for public purposes and its return to the original owners would not prejudice the rights of current rightful possessors, it should be returned to its owners in accordance with the rules applicable to abandoned property within occupied territory.

102 Order Concerning Jews' Property (The Gaza Strip and North Sinai) (No. 78), 5727-1967, K.M.Z.M. No. 3, at 230. On the Egyptian order, see part 11.2(c) and note 52 supra.

103 See, in greater detail, Zamir & Benvenisti, supra note 48, at 187–89.

104 The requisition of lands for military needs by the military government in the West Bank and the Gaza Strip did not deprive the private owners of their titles. The owners were also entitled to annual reimbursements for the use of the land. However, most of the owners refused to accept such payments for political reasons. If, in the future, control of these areas is transferred to a Palestinian entity, it will become necessary to examine how to compensate the owners for the injury to their property, particularly if the Palestinian authorities do not release these assets but continue to use them for public or military purposes of any kind.

105 Examination of the legality of this practice is beyond the scope of this study. Such an examination would include an analysis of the occupant's power to requisition land for military needs and an appraisal of the prohibition on the occupying power to transfer its own population to the occupied territory. As to the first issue, see Article 52 of the Hague Regulations, supra note 98. See also Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation 32–39 (1942); 2 Georg Schwarzen-berger, International Law as Applied by International Courts and Tribunals 268–88 (1968); Von Glahn, supra note 91, at 165–75; Mcdougal & Feliciano, supra note 98, at 809–24; Julius Stone, Legal Controls of International Conflicts 707–09 (1954). On the second issue, see Article 49(6) of the Fourth Geneva Convention, supra note 46, and, e.g., Roberts, supra note 57, at 84–86; Israeli Section of the International Commission of Jurists, The Rule of Law in the Areas Administered by Israel 54–55 (1981); Dinstein, supra note 57, at 124; Benvenisti, supra note 33, at 135–41.

106 According to local laws, unregistered lands that are not cultivated are considered state lands, and are therefore subject to Article 55. Most of the settlements were established on such lands. It should be noted that Palestinian jurists claim that these lands are privately owned. See, e.g., Aziz Shehadeh, The Concept of State Land in the Occupied Territories (affidavit submitted to the Israeli Supreme Court), translated and reproduced in 2 Palestine Y.B. Intl L. 163 (1985); Raja Shehadeh, Occupiers Law 26–33 (rev. ed. 1988). On this issue, see Eyai. Zamir, State Land in Judea and Samaria—The Legal Status (1985, in Hebrew).

In addition to the questions regarding state lands and the transfer of the occupant's own population (see supra note 105), this policy raises the issue of the occupant's power to administer and use public property. See Hague Regulations, supra note 98, Arts. 53, 55; Feilchenfeld, supra note 105, at 51–61; Von Glahn, supra note 91, at 176–80; Greenspan, supra note 75, at 286–93.

107 For an explanation of this prohibition and the accompanying sanction prescribed in a Jordanian law of July 1, 1973, see R. Shehadeh, supra note 106, at 39–40. On this and other Jordanian laws restricting the sale of lands on an ethnic basis, see Joshua Weisman, Restrictions on the Acquisition of Land by Aliens, 28 Am. J. Comp. L. 39, 47–48 (1980).

108 For a comparative survey of restrictions on the purchase of immovable property by aliens, including the Jordanian restrictions, see Weisman, supra note 107. Examples of the latter include the Law Concerning Possession and Use (Tass'aruf) of Immovable Property by Legal Entities, No. 61, 1953, which limited the purchase and holding of real property by legal entities. This law provided, inter alia, that corporations established in foreign countries and registered in Jordan may purchase and hold lands in Jordan (1) only with the approval of the Council of Ministers (i.e., the Jordanian Government itself); (2) only within the boundaries of the towns and villages; and (3) only to the extent it is essential and necessary for their activity, but not for investment or trade. This law also imposed strict limitations on the purchase and sale of real property by Jordanian corporations. The Order relating to the Law Concerning the Possession and Use (Tass'aruf) of Immovable Property by Legal Entities (West Bank) (No. 419), 5731-1971, K.M.Z.M. No. 27, at 1002, as amended in 1983, id., No. 57, at 12, authorizes the Head of the Civil Administration to allow local and foreign corporations to purchase and use lands, notwithstanding the conditions set by Jordanian law.

109 See supra note 98.

110 See R. Shehadeh, supra note 106, at 40–41.

111 See, e.g., SC Res. 446 (Mar. 22, 1979), 465 (Mar. 1, 1980); GA Res. 2851 (XXVI) (Dec. 20, 1971); U.S. Dep't of State, supra note 58, at 1198 (“The use of land by Israeli authorities for military purposes, road projects, Israeli settlements, and other purposes which restrict access, significantly affects the lives and economic activities of Palestinians”); Herbert J. Hansell (Legal Adviser, Department of State), Letter to the House Committee on International Relations (Apr. 21, 1978), reprinted in 17 ILM 777 (1978); International Committee of the Red Cross, Annual Report 1983, at 67 (1984) (Israel's measures of “colonization” of the occupied territories constitute violations of the Fourth Convention, in particular Articles 27, 47 and 49). See also authorities cited in note 105 supra.

112 For literature on this article, see supra note 105.

113 See text at note 105 supra.

114 See supra text at note 79; and part III.2, text at notes 122–23 infra.

115 On this issue, see Maurice M. Roumanie, The Case of the Jew from Arab Countries: A Neglected Issue (1975); Terence Prittie & Bernard Dineen, The Double Exodus (1974).

116 Additional types of private claims include claims for compensation for lands in the West Bank and the Gaza Strip seized for military purposes, see note 104 supra; claims of residents of the same areas whose property in East Jerusalem is considered “absentee property” according to Israeli law, see note 81 supra; claims that certain state lands are in fact privately owned, see note 106 supra; and claims by Israelis settled on governmental property, see section 3(e) supra.

117 For analyses of the DOP, see supra note 22.

118 Note 2 supra.

119 Agreement on the Preparatory Transfer of Powers and Responsibilities, Aug. 29, 1994. The powers concern education, culture, health, social welfare, tourism, direct taxation and value-added tax on local production. Under Article II(2), the PA replaces the authorized Palestinians referred to in Article VI of the DOP.

120 See DOP, supra note 1, Art. V(1); and Cairo Agreement, supra note 2, Art. XXIII(3), which provides that “[t]he five-year interim period referred to in the Declaration of Principles commences on the date of the signing of this Agreement.”

121 DOP, supra note 1, Art. V(2).

122 See id., Art. V(3) and Agreed Minutes concerning this article.

123 See id.

124 Cairo Agreement, supra note 2, Ann. II, Protocol Concerning Civil Affairs, Art. II(B)(22).

125 This term refers to the property administered in the West Bank under Order No. 59, and in the Gaza Strip under Order No. 423 (Order concerning Government Property (the Gaza Strip) 5732-1972), K.M.Z.M. No. 32, at 2556. On Order No. 59, see text at notes 99–100 supra; Zamir & Benvenisti, supra note 48, at 142–45. On Order No. 423, see id. at 185.

126 Cairo Agreement, supra note 2, Ann. II, Art. II(B)(28)(a)–(b).

127 Id., Art. II(B)(28)(c). On these lands, see part II.2(b)–(c) and 3(d) supra.

128 DOP, supra note 1, Art. XIII(2).

129 Id., Art. XII; see also text at and note 79 supra.

130 This is currently the practice. See part 11.3(b) supra.

131 The claim may be based on Article 3 of the Hague Convention Respecting the Laws and Customs of War on Land, supra note 98, which provides that “[a] belligerent party which violates the provisions of the [annexed Regulations] shall, if the case demands, be liable to pay compensation,” and on general principles of law, Factory at Chorzów (Ger. v. Pol.) (Indemnity), 1928 PCIJ (ser. A) No. 17 (Sept. 13).

132 On this practice, see supra part 11.2(b).

133 The Allies released property belonging to their own nationals who were in enemy-held areas during wartime. Such property was seized to prevent the enemy from exerting pressure on the owners and thereby using the property for its own benefit. Israel has done the same with respect to property of Jews who resided in Arab countries during and after 1948.

134 On the property question in the Versailles Agreement of 1919, see Roxburgh, supra note 38; Borchard, supra note 42. On the same question in the Paris Agreements of 1949, see Mann, supra note 44; Martin, supra note 44; McNair & Watts, supra note 39. In implementing this arrangement, Britain used legislation concerning trading with the enemy that is similar to the legislation promulgated by Jordan with respect to Israelis' property in the West Bank.

135 The atrocities committed by Nazi Germany during World War II, especially against the Jewish people, make this war unique and comparisons difficult to draw. Suffice it to note that the Federal Republic of Germany did indemnify survivors of the Holocaust for the Nazi atrocities. See Agreement, Sept. 10, 1952, FRG-Isr., 162 UNTS 205. See also Nicholas Balabkins, West German Reparations to Israel (1971); Nana Sagi, German Reparations (1980); Ludolf Herbst & Constantin Goschler, Wiedergutmachung in der Bundesrepublik Deutschland (1989). In addition to this Agreement, a complex system of German legislation provided for individual claims. For a detailed analysis of such claims, see Die Wiedergutmachung Nationalsozialistischen Unrecht durch die Bundesrepublik Deutschland (6 vols., 1974–1987). Between 1952 and 1962, West Germany agreed to make lump sum payments to several West European countries for injuries to their citizens by the Nazi regime. See Helmut Buchbom, Die völkerrechtlischen Beseitigung des im Nahmen des Deutschen Reiches veröbten Nationalsozialistischen Unrecht, in 2 id., Das Bundes-Rückerstattungsgesetz 1, 51–60 (Friedrich Biella ed., 1981).

136 On the aftermath of this armed conflict, see infra part III.5(b).

137 See, e.g., Progress Report, supra note 9, at 3, 8–9.

138 Treaty of Peace, Mar. 26, 1979, Isr.-Egypt, 1138 UNTS 59, 72–75.

139 Treaty of Peace, supra note 61, Art. 8, which provides in part:

2. Recognising that the … human problems caused by the conflict in the Middle East cannot be fully resolved on the bilateral level, the Parties will seek to resolve them in appropriate forums, in accordance with international law, including the following:

(a) in the case of displaced persons, in a quadripartite committee together with Egypt and the Palestinians;

(b) in the case of refugees,

(i) in the framework of the Multilateral Working Group on Refugees;

(ii) in negotiations, in a framework to be agreed, bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations pertaining to the [West Bank];

(c) through the implementation of agreed United Nations programmes and other agreed international economic programmes concerning refugees and displaced persons, including assistance to their settlement.

140 Convention Respecting Reciprocal Emigration, Nov. 27, 1919,Gr.-Bulg., 1 LNTS 68. This Convention implements Article 56(2) of the Treaty of Peace between the Allied and Associated Powers and Bulgaria, Nov. 27, 1919, reprinted in 2 The Treaties of Peace, 1919–1923, at 1036 (Carnegie Endowment for International Peace, 1924). See Stephen P. Ladas, The Exchange of Minorities: Bulgaria, Greece and Turkey 27–331 (1932).

141 On the background, see Kalliopi A. Koufa & Constantinos Svolopoulos, The Compulsory Exchange of Populations Between Greece and Turkey: The Settlement of Minority Questions at the Conference of Lausanne, 1923, and its Impact on Greek-Turkish Relations, in 5 Ethnic Groups in International Relations 275 (Paul Smith ed., 1991).

142 Convention Concerning the Exchange of Populations, July 30, 1923, Gr.-Turk., reprinted in 2 The Treaties of Peace, supra note 140, at 653. On the Convention, see Ladas, supra note 140, at 335–588.

143 In his conclusion, Ladas comments: “It may be asserted that as a result of the exchange the problem of the protection of minorities between the two countries has disappeared, to the great advantage of peaceful relations between the two countries and of greater stability.” Ladas, supra note 140, at 725–26.

144 See id. at 591–617 (especially 593, 603) (Bulgaria), 618–704 (esp. 648–49) (Greece), and 705–19 (esp. 705–08) (Turkey).

145 On the policies regarding compensation, see infra section 5(a).

146 British Prime Minister Winston Churchill commented favorably on this solution in the House of Commons. 406 Parl. Deb., H.C. (5th ser.) 1484 (1944). He relied on the Turkish-Greek population exchange, which he viewed as a success.

147 On this expulsion, see Alfred M. De Zayas, Nemesis at Potsdam (3d ed. 1988). For the figure of 15 million, see id. at xix, xxv, & 187 n. 1. See also Eugene M. Kulischer, Europe on the Move 282–86 (1948).

148 Potsdam Conference Protocol, Aug. 2, 1945, sec. XII, 3 Bevans 1207, reprinted in John A. S. Grenville & Bernard Wasserstein, The Major International Treaties Since 1945, at 32, 37 (1987).

149 De Zayas, supra note 147, at 189 n.1.

150 Kulischer, supra note 147, at 287–94.

151 According to the plan of the Western Allies, they were supposed to be compensated for this loss. See De Zayas, supra note 147, at 103.

152 The issue of compensating the German expellees was raised by the Western powers, id., but no formal commitment was made to that effect aside from the general pledge in the Potsdam Declaration for “orderly and humane” transfers. See supra text at note 148.

153 The Sudeten German Congress and the Sudeten German Landsmannschaft, representing some 2.5 million Germans expelled from Czechoslovakia whose property was expropriated by the postwar “Benes Decrees,” have been particularly vocal in their demands. On German-Czechoslovak relations in light of this issue, see CTK National News Wire, Profile of the Sudeten German, May 20, 1994, available in LEXIS, Nexis Library, Curnws File.

154 Id. (speech on June 9, 1991).

155 Id. Havel's comment on this question, on September 9, 1993, followed Chancellor Kohl's remark, on September 3, that a dialogue with the Sudeten Germans is one of the conditions for the Czech Republic's integration into Europe.

156 1992 Bundesgesetzblatt, Teil II [BGBl. II] 462.

157 Agreement in Relation to the Ratification of the Border Between Them, Nov. 14, 1990, Ger.-Pol., translated and reprinted in 31 ILM 1292 (1992). The Preamble mentions “the extreme suffering which resulted from [the] war, in particular in terms of the large number of German and Polish people who were either expelled from, or had to evacuate their homes,” as a “challenge to the establishment of peaceful relations.” Yet the Agreement is silent on refugees' rights. The German Government declared that this treaty left the question of expellees' rights open. Gunnar Schuster, Völkerrechtliche Praxis der Bundesrepublik Deutschland im Jahre 1990, 52 Zeitschrift für auslandisches öffentliches Recht und Völkerrecht 828, 848 (1992).

158 Agreement with Respect to the Unification of Germany, Aug. 31, 1990, 1990 BGB1. II 889, translated and reprinted in 30 ILM 457 (1991).

159 The decision on this issue was included in the Joint Declaration on the Regulation of Open Property Questions, June 15, 1990, and later appended to the Unification Agreement as Annex III. Article 41(3) provided that the Federal Republic would not make any future legal changes that would contradict the rules of the Joint Declaration. See Peter E. Quint, The Constitutional Law of German Unification, 50 Md. L. Rev. 475 (1991); Dorothy Ames Jeffress, Note, Resolving Rival Claims on East German Property upon German Unification, 101 Yale L.J. 527 (1991). Note that the Declaration did not specify the level of compensation to be paid.

160 Unification Agreement, supra note 158, Ann. II, Statute on the Regulation of Open Property Questions, ch. III(B). See Quint, supra note 159, at 550–54.

161 Unification Agreement, supra note 158, Art. 41(2). See Quint, supra note 159, at 550–54.

162 Decision of Apr. 23, 1991 (“Land Reform”), Fed. Const. Ct., 1991 Neue Juristische Wochenshrift 1569, summarized in 85 AJIL 690 (1991). On this issue, see Quint, supra note 159, at 544–47; Jeffress, supra note 159. On the Court's discussion of the compensation scheme, see infra text at note 212.

163 Chaudhri Muhammad Ali, The Emergence of Pakistan (1967); Russell Brines, The Indo-Pakistani Conflict 18–48 (1968). Estimates of the number of relocated people run from 12 million to more than 30 million. Ali, supra, at 274; Brines, supra, at 43.

164 See Ali, supra note 163, at 267–70. Legally, the property left by refugees was administered in each province by a custodian of evacuee property. This system stemmed from an Indian-Pakistani agreement to protect the property of refugees, expressed in a joint declaration of the Prime Ministers of India and Pakistan issued on September 3, 1947, which stated that “both governments will take steps to look after the property of refugees and restore it to its rightful owners.” See id. at 268. The system was based on the assumption that the relocation of populations might be a temporary phenomenon, and that many would eventually return to their homes. As time passed, and return seemed more and more unlikely, the attitude of the Governments changed, and “the refugee's title to property he had left in the other Dominion became thin and shadowy and finally disappeared.” Id.

165 See Benvenisti, supra note 33, at 177–81.

166 Robert Mcdonald, The Problem of Cyprus (Adelphi Paper No. 23449-50, 1989). The policy of allocating Greek Cypriot property to Turkish Cypriots was considered by the English Court of Appeals and the House of Lords in Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd., 1978 Q.B. 205, [1978] 1 All E.R. 277 (C.A.); Hesperides Hotels v. Muftizade, [1978] 3 W.L.R. 378 (H.L.).

167 On the plight of the Greek Cypriot refugees, see Peter Loizos, The Heart Grown Bitter: A Chronicle of Cypriot War Refugees (1981).

168 The Turkish Cypriots have since claimed that the two parties had agreed on this population exchange, in what they termed as the “Exchange of Populations Agreement of 2 August 1975.” See Necati M. Ertekuen, The Cyprus Dispute 267–72 (1984). The Turkish Cypriots base their claim for rejecting the Greek Cypriot demand for the return of the refugees on this “agreement.” The UN General Assembly “call[ed]for respect of the human rights of all Cypriots and the institution of urgent measures for the voluntary return of the refugees to their homes in safety.” GA Res. 34/30 (Nov. 19, 1979). Resolution 37/253 (May 13, 1983) reiterated this call, specifying the refugees' freedom of movement and the right to property as among their human rights.

169 Report of the Secretary-General to the Security Council, UN Doc. S/24472, Annex, at 9–25 (1992).

170 SC Res. 744 (Aug. 25, 1992).

171 Opening statement of UN Secretary-General Pérez de Cuéllar (June 29, 1989), reprinted in Zaim M. Necatigil, The Cyprus Question and the Turkish Position in International Law, App. 10, at 433(2d ed. 1993).

172 See section 5(b) infra.

173 Tomuschat dates the support in German legal literature for the right of refugees to return, as well as the right to a homeland, to 1947, following the mass transfers of Germans from Central and Eastern Europe. Christian Tomuschat, Das Recht aufdie Heimat: Neue rechtlkhe Aspehte, in Des Menschen Recht zwischen Freiheit und Verantwortung 183, 184é86 (Juergen Jekewitz et al. eds., 1989). See also Manfred Nowak, The Covenant on Civil and Political Rights: CCPR Commentary 220 (1993) (Article 12(4) of the 1966 Covenant on Civil and Political Rights is applicable even if masses of people are claiming this right); Alfred-Maurice de Zayas, Population, Expulsion and Transfer, in [Installment] 8 Encyclopedia of Public International Law 438, 442–43 (Rudolf Bernhardt ed., 1985) (discussing the applicability of the Universal Declaration and the 1966 Covenant to mass transfers of refugees). De Zayas points out that the implementation of the right to return would necessarily conflict with the interests of the existing population: “There are conflicting interests and conflicting rights, the balancing of which must be undertaken in the name of peace. Perhaps the current development toward greater interdependence in the world may eventually lead to the increased permeability of national frontiers and allow the settlement and coexistence of these neighbours.” Id. at 443. Unfortunately, recent experience with interethnic strife does not lend much support to this hope.

As for the Palestinian view, see Henry Cattan, Palestine and International Law 213–23 (2d ed. 1976); W. Thomas Mallison & Sally V. Mallison, The Right of Return, J. Palestine Stud., Spring 1980, at 125.

174 With respect to Article 12(4) of the 1966 Covenant, Dec. 16, 1966, 999 UNTS 171, which stipulates that “[n]o one shall be arbitrarily deprived of the right to enter his own country” (similar for our purposes to Article 13(2) of the Universal Declaration, GA Res. 217A (III), UN Doc. A/810, at 71 (1948)), Stig Jagerskiold, The Freedom of Movement, in The International Bill of Rights 166, 180 (Louis Henkin ed., 1981), writes:

This right is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a byproduct of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of Palestinians from what became Israel, or the movement of Jews from the Arab countries…. [T]he Covenant does not deal with those issues and cannot be invoked to support a right to “return.” These claims will require international political solutions on a large scale.

See also Hurst Hannum, The Right to Leave and Return in International Law and Practice 59 & n. 175 (1987) (“There is no evidence that mass movements of groups such as refugees or displaced persons were intended to be included within the scope of article 12 of the Covenant by its drafters”).

175 See, e.g., Yoram Dinstein, Book Review, 17 Isr. Y.B. Hum. Rts. 318, 319 (1987) (“one's own country” is generally construed narrowly; in any case does not include mass movements of refugees); Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 id. at 103 (1986); Kurt Rene Radley, The Palestinian Refugees: The Right to Return in International Law, 72 AJIL 586, 612–13 (1978).

The restriction of the right of return to a state's own nationals is emphasized in the Declaration of Principles of International Law on Mass Expulsion, 62 International Law Association [ILA], Conference Report 13 (1986) (Articles 1, 2, 3, 7). See also Strasbourg Declaration on the Right to Leave and Return, adopted by a group of experts on November 26, 1986, in Hannum, supra note 174, App. F. Article 8 states that “[o]n humanitarian grounds, a state should give sympathetic consideration to permitting the return of a former resident, in particular a stateless person, who has maintained strong bona fide links with that state.” Louis B. Sohn & Thomas Buergenthal, The Movement of Persons Across Borders (1992), differentiate between the duty of a state to admit its nationals (at 39–47) and the state's discretion in admitting aliens, subject to the state's laws (at 49–64).

176 This right is not included irt the 1966 Covenant on Civil and Political Rights, supra note 174. As to the right to property under the 1950 European Convention, see Jochen Abr. Frowein, The Protection of Property, in The European System for the Protection of Human Rights 515 (Ronald St. J. Macdonald, Franz Matscher & Herbert Petzold eds., 1993).

177 Usually, the prospects of successfully enforcing repossession orders are quite slim.

178 See further infra text at and notes 204–06.

179 SC Res. 242 (Nov. 22, 1967). See Ruth Lapidoth, Security Council Resolution 242 at Twenty-Five, 26 Isr. L. Rev. 295 (1993).

180 Radley, supra note 175, at 603–04: “For many years following the adoption of Resolution 194 in 1948, the focus of the General Assembly attention with respect to the Palestinian problem drifted from repatriation toward resettlement as a solution… . Beginning in 1969, the General Assembly's approach to the Palestinian problem took a new turn.”

181 UN GAOR, 3d Sess., pt. I, Resolutions 21 (1948). On the attitude of the PLO toward this resolution, which evolved from complete rejection to implied acceptance in 1988, see Khalidi, supra note 13, at 33–35. As Khalidi notes, the implied recognition of the State of Israel, by the precondition that only those who are “ready to live at peace with their neighbors” could be returned, prevented Palestinian approval of this resolution.

182 This Commission was established by the General Assembly in Resolution 194 (III), supra note 181. In its Progress Report, supra note 9, the CCP outlined its proposals for settling the Arab-Israeli conflict. Point 2, concerning the refugee problem provided that “the Government of Israel agree to the repatriation of a specified number of Arab refugees in categories which can be integrated into the economy of the State of Israel and who wish to return and live in peace with their neighbours.” The CCP explained that the physical conditions in this area had changed considerably since 1948.

The areas from which the refugees came are no longer vacant, and any movement of return would have to be carefully worked out and executed with the active co-operation of the Government of Israel. Therefore it is indispensable that this Government should have definite, concrete figures on which to work, so that it can integrate plans of repatriation into its own economy… . [I]t is equally necessary that the refugees who opt to return do so in the full knowledge of the actual conditions under which they would be repatriated.

Id. at 5, para. 32.

183 GA Res. 513 (VI), para. 2 (Jan. 26, 1952). This program envisaged the expenditure of U.S. $50 million for relief and U.S. $200 million for reintegration. On the refusal of the Arab countries to implement this program, see Perez, supra note 26, at 19–32.

184 See para. 3 of GA Res. 818 (IX) (Dec. 4, 1954), 916 (X) (Dec. 3, 1955), and 1018 (XI) (Feb. 28, 1957); para. 5 of Res. 1191 (XII)(Dec. 12, 1957).

185 Resolution 2154 (XXI) (Dec. 2, 1966) “[n]ote[d] with deep regret that repatriation or compensation of the refugees as provided for in paragraph 11 of General Assembly Resolution 194 (III) has not been effected, [and] that no substantial progress has been made in the program … for the reintegration of refugees either by repatriation or resettlement.”

186 The Assembly noted that it was “convinced that the plight of the displaced persons would best be relieved by their speedy return to their homes and to the camps which they formerly occupied, [e]mphasizing, consequently, the requirement for their speedy return.”

187 See GA Res. 2452B (XXIII) (Dec. 19, 1968) (concerning the 1948 refugees, which, inter alia, recalls Resolutions 393 (V) and 513 (VI), mentioning the option of resettlement in lieu of repatriation, and regrets their nonimplementation).

188 Sec, e.g., GA Res. 36/146C(Dec. 16, 1981), 37/120H (Dec. 16, 1982), 38/83H (Dec. 15, 1983).

189 DOP, supra note 1, Art. I.

190 See Khalidi, supra note 13, at 36.

191 Id.

192 See Ladas, supra note 140, at 720–30. For early criticism of the forced relocation, see Stelio Séfériadés, L'Echange des populations, 24 Recueil des Cours 307, 431–33 (1928 IV).

193 The changing attitude is best captured in the disagreement among the members of the Institut de Droit International with respect to the report on the legality of international transfer of populations: Balladore Pallieri, Les Transferts internationaux de populations, 44 Annuaire de l' Institut de Droit International 138 (1952). More recently, unilateral measures effecting transfers of populations have been criticized as illegal. See European Commission of Human Rights, Report concerning the application of Cyprus against Turkey (Applications 6780/74 and 6950/75), reprinted in 4 Eur. Hum. Rts. Rep. 482, 520 (1976) (determining that such practices are not in conformity with Article 8 of the European Convention on Human Rights; see also Alfred de Zayas, International Law and Mass Population Transfers, 16 Harv. Int'l L.J. 207 (1975); Christopher M. Goebel, A Unified Concept of Population Transfer (Revised), 22 Denv. J. Int'l L. & Pol'y 1 (1993).

194 See supra text at notes 165–72, and infra text at note 238.

195 See supra text at and notes 158–62.

196 See part 11.2(b) and (c). In view of these ramifications, the Israeli Government can be expected to strongly oppose such claims.

197 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 1CJ Rep. 16 (Advisory Opinion of June 21) (holding that South African presence in Namibia was illegal occupation). Although the Court declared the South African administration illegal under international law, it stopped short of extending this illegality to private transactions based on the laws of the illegal regime. Id., para. 125 (“this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory”). See also Lord Denning's decision in Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd., supra note 166.

198 See text at notes 140–45 and 163–64 supra.

199 See Ladas, supra note 140, for a detailed account of the appraisal procedures.

200 Id. at 291–324.

201 Convention Greco-Turque signée à Ankara en date du 10 juin 1930, reprinted in id. at 817. On Greece's motivation to reach this settlement, see id. at 583.

202 In an inter-dominion agreement in January 1949, referred to by Ali, supra note 163, at 270.

203 Annex to Report of the Secretary-General, supra note 169, at 18. See further infra section 5(b).

204 Luke T. Lee, The Right to Compensation: Refugees and Countries of Asylum, 80 AJIL 532 (1986).

205 65 ILA, Conference Report (1992), reprinted in 87 AJIL 157 (1993).

206 Recent writings include Patrick M. Norton, A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation, 85 AJIL 474 (1991); Richard B. Lillich & Burns H. Weston, Lump Sum Agreements: Their Continuing Contribution to the Law of International Claims, 82 AJIL 69 (1988).

207 See E. W. Vierdag, Remarks, 63 ILA, Conference Report 717 (1988): “I am convinced that the rule of compensation may, at least in theory, be founded on international law, even though most of the state practice referred to in the Report concerns compensation paid by states that were willing to pay.” The practice cited in the report of the International Committee on the Legal Status of Refugees concerning compensation included agreements of Western powers with Germany and Czechoslovakia as a result of atrocities in World War II; payments by the United States and Canada to Japanese-Americans interned during that war (the United States paid $20,000 per internee; Canada, $17,325); and the establishment of a compensation committee in Uganda after Idi Amin's downfall. Id. at 690–93.

208 Supra note 205.

209 1928 PCIJ(ser. A) No. 17, at 47.

210 GA Res. 36/148, para. 3 (Dec. 16, 1981) (establishing a UN Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees) (emphasis added).

211 See the group's report, UN Doc. A/41/324, para. 66(f) (1986), endorsed by GA Res. 41/70 (Dec. 3, 1986).

212 Decision of Apr. 23, 1991, supra note 162; see Quint, supra note 159, at 548–49. The Court also observed that during those turbulent years many people had undergone serious deprivations without compensation. See also Statute on Compensation Following the Statute on the Regulation of Open Property Questions (Sept. 27, 1994), 1994 BGB1.I 2624.

213 Quint, supra note 159, at 555; Jeffress, supra note 159, at 547.

214 For elaboration on this principle in the Israeli-Palestinian context, see section 6 infra.

215 David J. Bederman, The Glorious Past and Uncertain Future of International Claims Tribunals, in International Courts for the Twenty-first Century 161, 162 (Mark W. Janis ed., 1992).

216 A list of all the tribunals appears in id. at 189.

217 See id. at 162.

218 Id. at 168, 181 (“Many claims tribunals have been notoriously slow in completing their work.”). Bederman gives as an example the international claims commission between Poland and Germany concerning Upper Silesia, established in the Geneva Convention of May 15, 1922, 9 LNTS 466, which dealt with over 10,000 claims between 1922 and 1937. Id. at 167.

219 Established by the Algiers Accords: Declaration of the Government of the Democratic and Popular Government of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, reprinted in 75 AJIL 422 (1981), 20 ILM 230 (1981). On the Tribunal, see, e.g., Aida Avanessian, The Iran-United States Claims Tribunal in Action (1993); Rahmatullah Khan, The Iran-United States Claims Tribunal (1990); Wayne Mapp, The Iran-United States Claims Tribunal: The First Ten Years 1981–1991 (1993); Stephen J. Toope, Mixed International Arbitration (1990); David D. Caron, The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution, 84 AJIL 104 (1990); Charles N. Brower, The Lessons of the Iran-United States Claims Tribunal: How May They Be Applied in the Case of Iraq?, 32 Va. J. Int'l L. 421(1992).

220 See also Avanessian, supra note 219, at 3, 5; Brower, supra note 219, at 423.

221 See Toope, supra note 219, at 319–35.

222 Brower, supra note 219, at 426.

223 Id. at 427.

224 Id.

225 Criteria for expedited processing of urgent claims, para. 17, Ann. II of letter from the President of the Governing Council of the UN Compensation Commission (Aug. 2, 1991), reprinted in 30 ILM 1712 (1991) [hereinafter Criteria]: “Claims will not be considered on behalf of Iraqi nationals who do not have bona fide nationality of any other State.”

226 The Commission expects over two million claims in all categories. Report on the Activities of the United Nations Compensation Commission (Sept. 1, 1992), para. 3, reprinted in 31 ILM 1018, 1019(1992).

227 See SC Res. 692 (May 20, 1991), reprinted in 30 ILM 846 (1991) (establishing the Commission). This resolution followed SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM at 846. See John R. Crook, The United Nations Compensation Commission—A New Structure to Enforce State Responsibility, 87 AJIL 144 (1993). For analysis and a compilation of the Commission's decisions, see 31 ILM 1009–70 (1992). For an updated report to November 1994 by Ronald J. Bettauer, see infra p. 416.

228 See infra text at note 232.

229 Criteria, supra note 225, paras. 8, 19–21. The Council “may request an appropriate person, authority or body to submit claims on behalf of persons who are not in a position to have their claims submitted by a Government.” Id., para. 19.

230 Id., paras. 10–13. The documentation would be sampled, and in the case of departures would be verified by computer. Decision No. 10 of the Commission, para. 7, 31 ILM at 1053, 1056.

231 Criteria, supra note 225, paras. 14, 15.

232 See generally Richard B. Liluch & Burns H. Weston, International Claims: Their Settlement by Lump Sum Agreements (2 vols., 1975); Lillich & Weston, supra note 206; Richard B. Lillich, International Claims: Their Adjudication by National Commissions (1962).

233 In their book, supra note 232, they describe and evaluate 139 agreements concluded between 1945 and 1975; and in their article, supra note 206, they describe 29 additional agreements from the period 1975 to 1988.

234 Lillich & Weston, supra note 206, at 70. See also Christine Gray & Benedict Kingsbury, Inter-State Arbitration Since 1945: Overview and Evaluation, in International Courts for the Twenty-first Century, supra note 215, at 55, 61; Bederman, supra note 215, at 161.

235 See, e.g., Caron, supra note 219, at 108.

236 See Bederman, supra note 215, at 170; Christine D. Gray, Judicial Remedies in International Law 178–79 (1987) (only six post-World War II agreements included admission of responsibility; all of them referred to Japan's responsibility during that war).

237 Quint, supra note 159, at 557: “Up to this point the offices of the state Trust Agency, as well as local offices dealing with property questions, are totally unable to handle the massive number of claims.” Quint expects that the proceedings will take “years if not decades of litigation.” Id. at 561.

238 Annex to Report of the Secretary-General, supra note 169, at 18.

239 Point 3 of the CCP's Comprehensive Pattern of Proposals, reprinted in Progress Report, supra note 9, at 4.

240 Id. at 6, para. 42.

241 Id.

242 Comments of the Israeli delegation on the CCP's proposals, id. at 8, para. 65, and Ann. C, App. I, at 18–19.

243 Id. at 8, para. 65, and Ann. C, App. I, at 18–19. Just before this plan was discussed, Iraq seized the property of Iraqi Jews who had registered for emigration to Israel. Israel notified the CCP that, to protect the Jews affected by this legislation, it had decided to take into account the value of the seized property in evaluating the compensation due to Arab refugees. Id. at 1, para. 4. Unofficial estimates by leaders of the Iraqi Jewish community in Israel in 1954 put the value of the property at ₤156 million British sterling, i.e., above the CCP's estimate of the value of Arab refugee property. Perez, supra note 26, at 200. On the plight of the Jewish immigrants from Arab states, see Roumanie, supra note 115; Prittie & Dineen, supra note 115.

244 Annex to Report of the Secretary-General, supra note 169, at 8, para. 65.

245 Summary record of a meeting between the CCP and the Arab delegations (Nov. 14, 1951), id., App. II, at 20–24. See also the comments of the representatives of the four Arab states on the CCP's 1966 Working Paper, supra note 9. As mentioned in note 9, in our opinion the CCP report was wrong in classifying a considerable quantity of public property (state lands) as private property.

246 On the agrarian system and land law that prevailed in this area prior to 1948, see Frederic M. Goadby & Moses J. Doukhan, The Land Law of Palestine (1935); Avraham Granot, The Land Law in Eretz Yisrael (1949, in Hebrew).

247 See the CCP's 1966 report, supra note 9, para. 112.

248 The 14-year research conducted by the CCP on this subject is reported in its 1966 Working Paper, supra note 9. Although the CCP never revealed its exact findings, it appeared confident that this research could provide a “fair and reasonable” conclusion of the pecuniary aspect of the dispute. Id. at 31. However, the published document itself admits possible meaningful inaccuracies and problems due to insufficient evidence. Id. at 7. For various problems, e.g., with respect to property in the towns of Beersheba and Ramie, and in certain villages and the Negev region, see id. at 8–11, 21, 25–26. There may also be disagreement on the methods and guidelines adopted by the CCP, as shown by the critical reaction of the representatives of Egypt, Jordan, Lebanon and Syria to its research. See supra note 9. The lapse of time since 1948, during which various transactions concerning these assets have taken place, also limits the value of this document. Therefore, if Israel and the Palestinians opt for a process involving the identification of claims, they will probably not be able to avoid lengthy and bitter legal and economic confrontations, as well as deadlocked negotiations.

249 On this standard, see part 111.5(a) supra.

250 See the description by de Zayas, supra note 147.

251 GA Res. 513 (VI) (Jan. 26, 1952); see supra text at and note 183.

252 A comprehensive settlement of the property issues in the Arab-Israeli conflict may encourage the Israeli legislature to reformulate the rules regarding the compensation offered to Palestinians who left their property situated in Israel and later became Israeli citizens and residents. On the Israeli law in this respect, see part 11.2(a) supra. Broader recognition of the interests of these “absentees” may well be appropriate.

253 See UNRWA's estimates, text at note 12 supra.

254 On this issue, see text at and notes 79, 129–30 supra.

255 See Buehrig, supra note 12, at 66–70.