Wednesday, January 20, 2010

Legalites and Niceties

Earlier this week I fortified myself with a large stiff drink, gritted my teeth, and set out to defend the right of our wrongs to have their say.

Well, that opened a floodgate of discussion. Much of it focused on legality, the universal application of the law and nearby important topics. This is not a field I'm that well versed in, but let's see if we can't disentangle some of the threads.

Within the borders of what was once Mandatory Palestine there are a number of legal systems. In Israel proper there's Israeli law, which applies equally to all Israelis and usually to most other people within the jurisdiction, too. In what's called Area A territories, that's areas under full Palestinian control, the law is what the Palestinians have legislated. Jews aren't allowed into those areas, so there's no question of applying Palestinian law to Jews. There are Area B territories, where Palestinian law applies but the IDF is allowed to be active and has certain remnants of legal authority. There's Gaza, which is 100% Palestinian; I have no idea how Hamas deals with the PA legal system, nor am I particularly interested. There are Area C territories, mostly rural areas on the West Bank, which were not yet transferred to the PA when the Palestinians decided to destroy the Oslo process in late 2000. These areas have a mixture of legal systems, partly PA, partly Jordanian, partly Israeli military law - and, to make the picture even murkier, in the settlements there's a big dose of Israeli law, but in a limited way. Mostly this means Israeli law is applied to the Israeli citizens in the West Bank, but not to the territory, and not fully. No Israeli government ever applied Israeli law to the West Bank.

Except in one way: Israel has what I'm told is a unique institution called Bagatz, the High Court of Justice. The justices are the members of the Supreme Court, and the chambers are the same chambers, but unlike the Supreme Court which is the instance of final adjudication for cases coming up from lower courts, Bagatz is a place where an individual can go directly for immediate protection from the authorities. In summer 1967 the Israeli government granted access to the people of the newly controlled territories. This momentous decision was made so that the Arabs might defend themselves from the Israelis. Yes. Over the years Bagatz has dismantled an entire Jewish settlement built on Arab property (Elon Moreh, 1978) and forbidden the construction of others; it forced Rabin's government to take back 400 Hamas leaders deported in 1994 (after a year); it forced Sharon's government to redraw the line of the Barrier in 2004-6, and various other such events.

Before continuing let's note that a very large number of Palestinians - probably 85-90% of them - live under Palestinian law, in Gaza and areas A and B. Israeli law doesn't effect them at all. In Gaza, since there's no occupation at all anymore, even Bagatz is no longer relevant: as good a sign as any that the Palestinians of Gaza recognize they're no longer being occupied being the fact that they don't turn to Bagatz anymore, and how could they? They're not under Israeli jurisdiction in any way.

Then there's Jerusalem. In June 1967 Israel applied its law to an area - mostly empty hilltops - around Jerusalem; thus was born "East Jerusalem", an entity that had never previously existed in that form. It had something like 70,000 Arabs, many of whom didn't think they lived in Jerusalem at all but rather in villages near the city.

If you wish, it's legitimate to add the many Arab and Eastern European states where Jews once lived but left without their property, and they can't get it back because since they're not citizens anymore they've lost their legal standing. But I'm not getting into that: those issues are all clearly political, not legal.

Prior to 1948 there was Jewish property in what became the West Bank, and there was Palestinian property in what became Israel. No Jews became Jordanian citizens. Some Palestinians became Israeli citizens, and by and large they retained their property, though not always. Some Israeli Palestinians lost title to their property in various cases, as did some Jews, too, and there are even a few ugly cases such as Ikrit and Bir'am where it's hard to justify how the Arab property was taken over. In the large picture, however, these were minor lapses.

(There was Jewish property in Kfar Darom, in Gaza, but after a long and convoluted story, it doesn't belong to Jews anymore.)

After 1967 some efforts were made by Jews to re-acquire their property in what had been Jordanian controlled areas. I'm not acquainted with each case, but 42 years later we're talking about a small part of the Gush Etzion settlements, five buildings in Hebron - and that's it. As a general statement, Israeli's who have acquired land or property on the West Bank needed either to get it from the government if it didn't previously belong to any individual (most of the settlements), or they had to buy it.

Non-Israeli Palestinians can't get their pre-1948 property back, just like the Jewish Iraqis or Poles can't.

Jerusalem is the trickiest part of the story. The Palestinians of East Jerusalem are either citizens or permanent residents, so the applicable law is Israeli law, which makes no distinction between Jews or Arabs. I don't know the percentages, but I'd guess that about 99.9% of what is now Jewish property in East Jerusalem was acquired through government action. Some of it was confiscated from Jews, more was confiscated from Arabs, and most wasn't confiscated because it didn't belong to individuals. The story of Sheikh Jarrah, where individual Jews are trying to re-acquire pre-1948 property is very rare, and it's mostly not working. In places like Siluan-Shiloach (the City of David area), the Muslim quarter of the Old City, the Mount of Olives, and even Sheikh Jarrah, most of the Jews moving in have bought the properties they're moving into. The most recent case, in Sheihk Jarrah, is unusual because a few families refused to pay rent and were eventually evicted. Their neighbors who did pay rent are still there and will probably remain.

Arabs living in homes they owned were not evicted even when fields around them were being confiscated, which is why there are Palestinians living in their homes inside Jews neighborhoods such as Gilo, East Talpiot, Pisgat Zeev and French Hill.


Folderol said...

I'm struggling to see the point you're making. I understand the applications of different laws but I don't think you've explained clearly how this relates to repossesion of old-land etc.

Anonymous said...

WOW, judges in Israel certainly work in interesting times
- all these different entitlements and non-entitlements seem to promise a veritable delicatessen for minds who like that kind of stuff

- as you mention Poland - after 1989 there was a group of exiled (Vertriebene) from Poland who wanted to get something back or money for it. The Poles didn't like it and I think it would have also endangered the recognition of the Oder-Neisse-Line and to the best of my memory their claims never went to court. Therefore my best guess is that the German government managed to quiet them down and thus secure another piece of peace after WW2.

BTW I think that equality before the law applies only to claims that have the same history. If the history is different, equality will have to be different. If it were not so equality of persons would be violated.

zionist juice said...

well, the poland issue is - when it comes to legal issues - quite similar.
germans who lived on territory which is today polish cannot get anything back.

i have a friend from a german jewish family from eastern prussia, near koenigsberg, today poland.
they cannot get their house back.
the family left in the 30s. some to israel, some to the US. and they cannot get their house back; for the polish authorities they count as germans.

and silke, no, that is not what legal equality is about. it is not about cases who have the same history, which is hard to find.
legal equality means, that you cannot treat one person different which is in basically the same situation like another person and you can also not treat a person in the same way although she is in different situation.
hence citizens have more rights (or rather different rights) ...
but it is very important to stress something: the right of equality has boarders.
f.exp. in german constitutional law it is enough if you have a "sachlichen Grund" (a factual reason ?) for the unequal treatment.

Anonymous said...

Zionist juice
no objections I agree that's what I meant to say - but in what I had to work with over the decades the history of what you call a situation was quite often not irrelevant i.e. all the stages that something went through or said differently all the rights that were acquired, waived and lost on the way to the present could make a difference.

As to your friends:
I once met a woman whose father was forced to move west twice once after WW1 (Thorn) and once after WW2 and I would guess that a Jew before 1933 had a totally different citizenship status as a Jew after 1933. Which viewpoints the Poles then introduce into the matter is quite another matter again and one can't even begin to start guessing.
In the 70s it was part of my job to get residence and work permits for employees for GErman-American company and found during my visits to the authorities to my never ending furor that the law pertaining to immigration is subject to the sovereign rights of the state and may be handled quite arbitrarily unless the state the immigrant comes from has a good contract with in this case Germany like for example at the time the US had but the Brits had not.
That's why and for a lot of other reasons I cannot stop to wonder why Israel always seems to show little assertiveness as to its sovereign rights.

bataween said...

Please can someone explain how the system works because this question of repossession interests me a great deal, especially as it affects Jews from Arab countries. I know of Iraqi Jews who were stripped of their nationality who were told by Iraqi diplomats in London that they were entitled to reclaim their property. In the Cecil Hotel case an Egyptian court ruled that the Metzger family from Egypt could recover the hotel - although the family were British nationals.
BTW, Yaacov, you have a great blog! (got here through Normblog)

sergio said...

As a side comment: yesterday I watched "hardtalk" on BBC, which interviewed Amir Moussa, a master of tegiversation.

What I found interesting is that as there is no more occupation in Gaza, he now excoriates the cruel Israeli "siege". Pathetic, as usual.


Danny said...

If the government pays you for your land, the proper term is "expropriated" not "confiscated". Were the lands expropriated or confiscated?

Yaacov said...

Danny -

Thanks for the clarification.

The Hebrew term is "hafka'ah". So far as I know, hafka'ah is expropriation,using your distinction. Lands taken by the state for whatever public policy or public use.