This work was in the process of completion in late 2002 during the vicious cycle of killing and counter killing that characterized Israeli-Palestinian relations since the al-Aqsa Intifada broke out in October 2000. That outbreak of violence came only three months after Israeli and Palestinian negotiators at the Camp David II summit starting making the first significant public talks in decades on the question of Palestinian refugee property. No breakthrough occurred at the summit, nor at Taba in 2001, and no public discussions on this or any of the so-called “final status” issues have taken place since then, at the time of writing.. Serious discussions of compensation/restitution once again found themselves held hostage to the overarching high politics of the Arab-Israeli conflict. Part of the reason why the Israeli-Palestinian conflict continues is precisely because movement toward resolving these final status issues has not occurred. In this lies the dilemma: the Palestinian refugee property issue has been adversely affected over the decades by the longevity of the Arab-Israeli conflict, but that longevity itself is partly the result of the lack of movement on this and other refugee grievances. The conflict has prevented concrete steps to deal with the refugees, and the absence of such steps has led to bitterness and more conflict. Plus ça change, plus c’est la même chose.
The significance of this study of Palestinian refugee property extends far beyond the property question itself. Indeed, the property issue lies fairly close to ground zero in the entire Israeli-Palestinian conflict. The course that it has taken and its overall lack of resolution can tell us much about the nature of Arab-Israeli relations in general. For more than half a century the Arab-Israeli conflict has shifted and changed, waxed and waned. What has remained a constant, however,—despite the high politics of diplomacy and nationalism,—is that on the human level the conflict has become a personal tragedy for those persons on all sides who have suffered, died, fled, and/or seen their property abandoned and confiscated.
This study also details how the crux of the Arab-Israeli struggle, after all this time, still boils down to one crucial touchstone event: regardless of the intentions of its founders, Israel was created in 1948 at the expense of the Palestinian Arabs who had lived there. The Palestinians’ loss in 1948 extended far beyond mere military defeat and constituted a political, socioeconomic, and demographic disaster of the first order of magnitude. The two most open manifestations of this disaster were the obvious presence of 726,000 persons in exile from their homes and the vast quantity of property that they left behind. Despite the passage of five decades, the holding of conferences, and the signing of treaties, these two glaring features of the refugee flight remain unresolved in full view of the world. Until they can be resolved in a manner that the refugees themselves can support, there will be no end to the conflict.
Can the refugee property question be resolved? This study has traced the various efforts and energies expended on the question from 1948–2001. It has also dug up records from the archives and revealed several creative compensation plans that emerged in the 1950s and 1960s that might provide the bases for fresh new thinking on the question in the future. While it is not my intent to offer a plan or issue a prognosis, this study hopefully has shed light on the major sticking points and controversies surrounding the property question that might prove helpful to peacemakers in the future. In the final analysis, what are some of these controversies? On the broad level this study has focused on five issues: What constitutes abandoned property and how much is it worth? Can refugee property compensation or restitution be carried out independently of the question of repatriation vs. resettlement? Is compensation/restitution unavoidably linked with Israeli counter claims? Is, or perhaps more relevant to our discussion, “was,” Israel in a position to pay compensation, and if not, who would? Why was the UN unable to effect compensation or restitution despite its efforts and its prestige?
Central to the first issue is that no two parties have been able to agree on what types of property should be counted as refugee—or “abandoned,” “absentee,” or any word; even the words contain political connotations. Thus, even something as basic as quantifying the refugees’ losses has proven controversial. There has been considerable debate over the past decades over exactly how much land the refugees left behind. This has led to widely divergent estimates of the scope and value of the property. However, this is not so strange as it first may seem. Even though “land” is real in the sense that one can run one’s fingers through the soil, “property” is a socioeconomic construct reflecting cultural conceptualizations. “Land” might seem obvious and tangible, but “property” is not. To a Westerner steeped in the Roman tradition of unqualified possession, a parcel of land is a “thing” to be owned exclusively. In contrast, for certain Native American peoples, for example, land is an integral part of nature, part of “everything.” One could no more own land than one could own the air. The Palestinian refugee property question similarly has been affected by different and conflicting conceptualizations of just what kind of “property” was abandoned by the refugees in 1948. Should only private property be included, or communal or even “public” land as well? Just what one considers “property” leads one to define “abandoned property” and thus get to the heart of the matter: how much “property” did the Palestinian refugees leave behind and what is it worth?
Israeli government officials and scholars over the years usually have taken a narrower view of what constitutes abandoned Palestinian property than have Palestinians and some others. Israeli officials almost immediately stated that they were willing to compensate the refugees but only for immoveable property. They claimed that moveable property had been lost, although various Israeli governmental bodies did acquire such property and sell it. Although it pledged to keep accounts of the monies it realized from such sales and keep them in accounts for the individual refugees concerned, this study has shown, in fact, that the money was immediately spent and by the 1990s the Israeli government had lost track of it.
More important has been the question of Israeli estimates of the scope of abandoned immoveable property. Here the government quickly announced that it was willing to pay compensation only for land that had been regularly cultivated. It refused to compensate for “waste” lands and other nonarable land even though this study has shown that the Custodian of Absentee Property profited from such land, generating income from abandoned stone quarries and even selling cactus fruit harvested from marginal land. The Israeli government also refused to consider as abandoned vast tracts of land that officially or informally were understood as land for common usage. Israeli authorities took over large areas particularly of southern Palestine by declaring them “state lands” to which they were entitled as the successor state to the British mandate. They claimed that they owed no compensation for such areas. Thus for Israel, compensation was generally something it reserved for arable lands it considered to have been privately owned by individuals.
In contrast Arabs usually have adopted a much more inclusive and expansive definition of abandoned property that includes both individually owned land as well as collective or communal property. They have viewed the question of abandoned land not merely in terms of what individual Arabs lost but have also considered the total economic loss to Palestinian society as a whole. Palestinian land experts have pointed out that marginal lands on the outskirts of villages, while not privately owned or even registered, were nonetheless economically important parts of the village economy deserving of compensation. Villagers utilized such areas for gathering firewood, allowing their animals to graze, and so forth. Over the decades they also have insisted that Israel compensate the Palestinians for their respective share of state property formerly owned by the mandatory government.
Arab estimates of the value of urban land and buildings as well as citrus groves usually have been much higher than Israeli estimates. One of the reasons is that the refugees reckoned the value of urban land and buildings as they left them whereas Israel maintained that the war damaged many buildings before it acquired control over them. In this lies yet another conceptual difference in understanding. How can one establish the value of land and property? The Israelis claimed that land prices in Palestine were artificially high because of Jewish demand and British restrictions on Arab sales to Jews in certain areas. Palestinians have pointed out that “marginal” lands on the outskirts of cities were much more valuable than their appearance because of their potential developmental usage through urban sprawl. Israelis can say that the abandoned land would have been worth much less had Israel and Zionism never existed, while Palestinians can counter that in Israel’s absence, they would still be living on their land. One also can argue whether compensation should reflect some abstract standard of the land’s value or should be calculated on the basis of the financial benefits Israel reaped from it (in terms of things like the savings to the Zionist movement from not having to pay for the land, the revenues it generated from their subsequent sale, etc.). Beyond just the question of varying Palestinian and Israeli ideas about what constitutes abandoned land there is a huge conceptual and practical difference between the abstract value of the land and the value of the financial benefits reaped by Israel from it.
Beyond this, the controversies over how much land the refugees left behind leads to another question: Do the refugees still own it? Should they receive it back through restitution, or merely be compensated for it and thereby concede its loss? Israel considers that the refugees’ legal title to the land lapsed the moment it was taken over by the Custodian of Absentee Property. Israeli authorities consider that after that point they were free to do what they pleased with the property, including reaping any benefits from Israeli developmental efforts over the years. True, they stated they owed compensation for the lands’ value but only as of 1948. They categorically refused to consider that the refugees maintained any “ongoing title” to the land itself and thus had any grounds to demand income from it or restitution of it. The Arabs, however, have never accepted the legality of Israel’s confiscation of the land. For them, the property is still legally owned by refugee Palestinians who should benefit from it. In this regard, they viewed the refugees rather like absentee landlords who deserve to be paid rent, especially considering the circumstances behind their exile. For this reason, the Arabs began pushing in the 1950s for the UN to establish a property custodian to whom Israel would pay the income it received from the refugees’ land. This allowed the Arabs to demand payment from Israel but in a form of payment that avoided the question of “compensation.” By seeking compensation, they might be conceding the legality of Israel’s confiscation. Demanding income was a way to seek reparations and still claim ownership. Not only did the UN General Assembly eventually pass such a resolution, but also this demand remains central to Palestinian negotiating strategies today. The author is aware that Palestinians already have carried out detailed studies of how much money Israel has generated from certain urban refugee land in terms of rents, sales, etc., over the decades.
This study also has shown how the UN and the world have understood these controversies—particularly the United States, given its power and influence within the international community and especially within the UNCCP. The UN General Assembly’s partition resolution of 1947 specifically called on authorities in the proposed Jewish and Arab states to compensate members of the other community for any land that they subsequently expropriated. It also called for both Jews and Arabs to benefit from public property left behind by the mandatory government in each state. In subsequent years the UNCCP in particular adopted various conceptualizations of what types of property should be included within a future compensation scheme. Given its power within the UN and the UNCCP in particular, America’s attitude toward these questions was of paramount importance. To cite but one example, the United States backed Israel’s claim that its confiscation of the refugees’ land severed their legal title to it. However improper the move may have been, the United States considered that Israel’s confiscation of the land was a fait accompli. In American eyes, Israel owed the refugees compensation but had become the legal owner of the land. This explains why the Americans insisted that a title search showed them that the land on which they proposed constructing an embassy in Jerusalem in the 1980s was properly registered to the Israeli government and no longer belonged to refugees. Interestingly, the U.S. congress seems to have adopted quite a different standard in 1994 when it enacted the Helms-Burton Act, which denied the legitimacy of Cuba’s land nationalization policies after 1959.
This leads to the second issue this study has examined. Is the question of compensation and/or restitution inseparably linked with the controversy over repatriation versus resettlement? The historical record suggests that the answer is “yes.” Is payment and acceptance of compensation tantamount to an admission by refugees that they are accepting a fait accompli and somehow forfeiting what they call their right of return to their land? Whether openly stated or not, all parties to the drama, including Israel, the Arabs, the UN, and the United States, seem to have agreed that compensation is indeed something that will occur in lieu of repatriation. Israel and the United States have operated since the beginning on the assumptions that (a) massive refugee repatriation is out of the question; (b) compensation will be the financial vehicle for effecting refugee resettlement in the Arab world; and (c) refugees’ acceptance of compensation nullifies their right to repatriation.
Israel vehemently opposed mass repatriation from the beginning. The greatest number of refugees it has ever offered to repatriate is 100,000. Resettlement of the vast majority of the refugees was the only option the Israelis would (and still do) discuss. Compensation payments to the refugees were not just a question of morality but would serve the practical purpose of providing the capital to assist in the refugees’ absorption into the surrounding Arab countries. This is one reason why Israel has opposed the concept of compensating individual landowners and preferred compensation en masse: it feared that in the case of individual compensation a large amount of the total package would go to wealthy refugees who had possessed large estates and who already had resettled, leaving the bulk of the poorer refugees with little or nothing in terms of compensation to finance their absorption into the Arab world. The United States agreed, and from the beginning drew a red line around the equation linking compensation with resettlement. The UN also made this connection, although the UNCCP at various times also believed that even repatriated refugees were entitled to compensation if Israel had destroyed or damaged their property “illegally” and not as a direct consequence of war.
For their part, the Palestinians and the wider Arab world also have resolutely understood compensation as a surrender of the right of return and have refused to discuss it separately from repatriation. Their own ideological stance was deepened by others’ insistence that the refugees must choose between compensation and repatriation. The property question for the Arab world has been a derivative of the refugees’ central demand over the decades: the right of return. The Palestinians believe that the right of return is sacrosanct and must be dealt with separately from the property question. Many continue to argue that the refugees are entitled to property restitution or reparations, not compensation. They seek a return of the property to its owners, or payment for decades of Israeli usufructure, regardless of whether the refugees return to their homes.
Popular attitudes among Palestinians reflect this ambivalence about compensation and the understanding that it represents a surrender of the right of return. A summer 1999 poll conducted by the Palestinian Authority among Palestinians in the West Bank and Gaza, both refugees and nonrefugees, asked questions related to the question of compensation versus repatriation. The results showed that only about half of the respondents believed that compensation would be forthcoming as part of a final Israeli-Palestinian peace deal. A plurality responded to the question “what do you think will be the negotiated solution for the refugee question?” by saying compensation (46.7 percent). Of the rest, 24.9 percent said repatriation to Israel, 13.2 percent said resettlement, 12.7 percent said remaining in the refugee camps, and 2.5 percent said “other.” Pollsters also asked those respondents who were refugees what they themselves personally supported as the solution to the refugee problem; the poll showed that compensation was much less popular than the right of return: 24.1 percent of refugees supported the right to compensation compared to 72.5 percent who supported the right of return. When asked what they would do if compensation were agreed upon by the parties as the final solution to the refugee problem, the plurality stated that they would refuse it: 10.7 percent said they would accept compensation with conviction, 32.8 percent said they would accept without conviction, 51.4 percent said they would try to make the scheme fail, and the remaining 5.1 percent offered other answers.(1) Firm convictions are also revealed in a slogan painted in October 2000 on a wall in the Balata refugee camp in the West Bank. It simply read, “One Choice—to Return or to Die.”(2)
This ambivalence toward the concept of compensation also explains the recent insistence by some Palestinian groups that the refugees obtain justice through property restitution, not compensation. Official PLO negotiating positions include both concepts. But private Palestinian NGOs have been more forceful in insisting upon restitution instead of compensation. This is seen particularly in the positions taken by the BADIL Resource Center for Palestinian Residency and Refugee Rights and the Council for Palestinian Restitution and Repatriation.
A third important issue this study has discussed is whether Palestinian refugee property claims are linked inextricably to counter claims raised by Israel. Once again, the answer provided by the historical record seems to be “yes.” The Israelis long insisted that any compensation they paid to the refugees must be reduced by amounts reflecting everything from war damages suffered by Israel in 1948, to economic damages suffered as a result the blockade of the Suez Canal to Israeli shipping, to Jewish property abandoned in Arab countries. The last of these has proven to be the longest-lasting demand. A good proportion of the Jews living in Arab countries who fled those countries under duress in 1948 immigrated to Israel. Israel has insisted that it should receive compensation for the property they left behind as compensation for the costs it assumed in settling these immigrants. Muddling the issue is that many of these costs were assumed not by Israel but by the Jewish Agency, and that not all Mizrahi emigrants settled in Israel or even asked that Israel represent their claims for them. Israeli demands to link the two questions clearly have been directed at reducing or even canceling out the final amount that Israel might be required to pay. Some Mizrahi Jews have resented seeing their claims to individual compensation being “hijacked” by the Israeli state, and have felt that their legitimate demands for personal compensation are being threatened by Israel’s attempt to reduce its own collective financial burden vis-à-vis the Palestinians.
This demand has proven particularly nettlesome for the Arabs too. The Palestinians categorically have refused to link the two questions. They have stated that they are not responsible for the policies of individual Arab states toward their respective Jewish citizens and therefore their refugee claims accordingly must not be reduced. At the Camp David II summit in 2000, Israeli negotiators continued to connect the two issues but indirectly: they sought the formation of an international fund that would pay individual compensation to both Jews and Palestinians. At Taba in January 2001, they finally admitted, after decades of arguing to the contrary, that the Jewish property issue would not be part of a bilateral Israeli-Palestinian agreement. However, they did demand that the two sides work toward progress on the question, and so it has still proven impossible to extricate Palestinian refugee claims completely from Israel counter claims.
This study has followed the course of another aspect of the property question. Is Israel able to pay the large amount of money required by a compensation scheme? Early compensation schemes developed both by the UNCCP and the United States clearly assumed that Israel could not pay the full amount, given the poor state of its initial post-1948 economy. These plans assumed that the bulk of the costs would be shouldered internationally. American strategists openly admitted as early as 1949 that it would be cheaper for the United States to contribute large amounts of money to these efforts than to allow the refugee problem to fester and lead to regional instability. Israel’s concern over how it would pay compensation was clearly a driving force behind its raising of counter claims. This issue quickly became mired in controversy, especially once Israel began receiving massive German reparations and it became clear that the Jewish state was no longer the cash-starved nation it was in 1949. Today, Israel’s economy is significantly better off than in the 1950s yet it remains concerned about its ability to pay. This is especially true in light of an Israeli governmental study showing that the Palestinians’ compensation claims outstrip Israeli counter claims by a ratio of 22:1. At the Camp David II summit, Israeli negotiators claimed to have spent the funds Israel had generated from refugee property, funds it supposedly was setting aside for the refugees. The question of how to finance compensation payments and who would do so continues to surface today both in formal and informal studies of the issue.
Finally, this study has looked at the failure of the global community, the UN, and the UNCCP in particular to make any significant progress on the refugee property issue over the years. This failure was clearly not for lack of trying. However, the context in which these efforts were made worked against their success almost from the beginning. The conclusions that can be drawn from this history are sobering. The refugee property issue has bedeviled international attempts at solution for more than half a century. This comes despite the various global power shifts and despite the significant changes in international attitudes toward war and peacemaking that have taken place since 1948. What does this say about the ability of the UN, the superpowers, as well as regional actors to make any real progress in reconciling adversaries around the world? Certainly the issue this book has studied demonstrates that despite resolutions, commissions, study missions, conferences and the like, the UN is unable to solve nettlesome problems in the absence of clear and strong backing from the world’s great powers, particularly the United States. The UNCCP ultimately proved incapable of creating serious movement on the property question because the United States and its allies, France and Turkey, were unwilling to pressure the parties, especially Israel. There were reasons for this attitude, among them that the United States viewed the Arab-Israeli conflict as subordinate to its wider strategic concerns like the Cold War. It cultivated allies and sought to isolate enemies, which had repercussions on its policies toward pro-Western Israel.
Idealistic UNCCP personnel like Gordon Clapp, Sami Hadawi, John Berncastle, Joseph Johnson, and Frank Jarvis truly believed in their missions, their plans, and their data. They and others correctly understood that unless systemic changes were created in the Middle East that addressed the fundamental concerns of the refugees, of Israel, and of other regional actors, that peace efforts would founder. However, their efforts continually were undercut by apathy, by inflexibility, by American red lines drawn around certain issues, and by the failure of the global community to exert serious efforts toward dealing with the entire Arab-Israeli gestalt in which the property question was situated. The UNCCP and others chose instead to dismantle the core problems inherent in the Arab-Israeli conflict into bit-sized, manageable pieces. These pieces ultimately proved less than manageable after all, and these efforts ultimately failed. The lessons of this failure also shed light on the inability of the present Israeli-Palestinian peace process to forge a lasting solution to the bitter conflict between Arab and Jew in Palestine/Israel. This recent peace process also seeks to dismantle the gestalt into bit-sized pieces that can be resolved through small-scale technical ventures carried out in a step-by-step process. The Oslo process focused on these small issues and chose to leave the key final status issues until the end. As we saw with the refugee property issue, however, the core issues of the Arab-Israeli conflict are so interconnected that they defy such efforts at a “piece-meal peace.” The failure of the Oslo process to date thus comes as no surprise.
The tortured history of the Palestinian refugee property issue demonstrates that healing the humanitarian legacies resulting from bitter ethnic conflicts only can be accomplished by vigorous and creative international peacemaking efforts that respect the deeper conceptual issues presented by such conflicts and seek to address them. No amount of development aid or other technical approaches can succeed. Needless to say, such a task is exceedingly difficult. Nevertheless, we must consider the human and material costs that have gone into failed ventures. Not shouldering this task will prove even more costly for future generations.