Restitution, Return and Justice
Atty. Arie Yampuler responds to “Vision of Return"
By: Atty. Arie Yampuler
Arie's sign: Democracy to all from Jordan River to the sea

It’s obvious that “The Capetown Document:  Vision of Return” avoids addressing controversial issues that could have delayed agreement on its formulations.  The result is a document full of holes which fails to answer important crucial questions.

The document provides a partial answer to the case of a “second tenant” in a home that once belonged to a Palestinian and is still standing today.  But most of the millions of Israelis living along the coast reside in buildings constructed after 1948 on Palestinian agricultural land.  In many cases the land was owned by a particular village under traditional tenure arrangements even though it was not recorded in the land registry established by the Turks or subsequently by the British in 1920.  These buildings contain hundreds of thousands of apartments inhabited by people, some of them poor and hardworking, who’d spent years paying for them.  Some of these apartments are in very poor condition.  Their occupants had bought them from contractors, and some of them had passed through a number of hands.  They didn’t steal their homes from anyone.  Dispossessing them would be unjust.

Most of the problems I foresee involve the “actual act” of returning property (transferring it from the current owner to someone else rather than providing the latter with compensation). In other countries, such as Poland, for example, Jews may not demand the return of their property except under specific circumstances – the land has not been built on, for example, or it is held by a government or municipal entity – because expropriation of buildings constructed on confiscated land would be a violation of the purchasers’ rights.  Section 17 of the December 1948 Universal Declaration of Human Rights recognizes property rights as fundamental and prohibits expropriation.  Even if Israel expropriated property from many Palestinians during the Nakba, that does not justify expropriating the property of Israelis to redress the original confiscation.

The concept of “good faith purchase” applies in Israel as in other western countries.  It balances the property rights of the original owner against those of the purchaser of the property.  Section 10 of the Israeli land law (which is based on English law) addresses good faith purchases more strictly than does English law:  “The purchaser of the right to registered property in exchange for compensation and who depends in good faith on the validity of the registration, secures their right to the property even if the registration proves to be inaccurate.”

This arrangement establishes a mechanism based on principles of natural justice to minimize the harm when the property rights of the original owner are violated.  The right of the subsequent purchaser take precedence over those of the actual owner under two conditions:  the purchaser depended on the land registry in good faith, and the purchaser obtained the property in exchange for compensation (which, according to court decisions, cannot simply have been symbolic but must have equaled or almost equaled the true value of the property).

There is an additional problem with the document’s treatment of a “second occupant” of a confiscated building which is still standing.  It refers to the person who “seized” a house in 1948; i.e., a trespasser.  But what about someone who purchased the house and lives there?  And what about cases in which the house has already had two or three owners, all of whom acquired it in exchange for compensation and on the basis of documentation in the land registry, even if the original registration was based on an injustice?  Ignoring the “good faith” principle violates property rights, and therefore the human rights, of innocent people.  Even if those innocent persons are indirect participants in the ongoing tragedy it would be unjust to violate their rights.

I believe it possible to establish a sliding scale.  Distinguish, for example, between someone living alone or with their family in a seized property they had purchased, and a person for whom such a property is one of many they own and they live in one of the others. In the first case, the property would remain in the occupant’s possession; in the second case, the original owner would be preferred.  In such cases fair compensation would be provided for the property from the transfer fund that the drafters of the document propose be established.  An offer of increased compensation might be made to original owners who decide not to return.

Let me note, in passing, that English law is much less strict that Israeli law, and is more expansive in preferring the right of the subsequent purchaser.  British law recognizes the concept of “real estate rights based on justice.” The approach of “proprietary estoppel,” for example, which is not accepted in Israeli law, recognizes cases in which the right of the subsequent purchaser will be preferred to that of the original owner even if the later purchaser’s ownership was not recorded in the land registry, particularly in situations in which the property owner committed to or carried out a transaction with the subsequent purchaser but the transaction was never registered and the registered owner or his heirs demand the return of the property, if the subsequent purchaser is able to prove that the transaction was carried out, especially if they based their later actions upon it and paid compensation for  it or undertook other significant expenditures.

Or, for a more dramatic example, British law even permits, in certain circumstances, a trespasser to register the property in his name if a defined number of years have elapsed and certain “equitable rights” procedures have been carried out under conditions of what is known as “adverse possession.”

We may conclude that the prevailing approach today in western democracies is to refrain from righting a violation of property rights by violating the property rights of another, and to prefer the later purchaser on condition that they fulfilled the “good faith” criterion and, of course, that they paid a realistic price for the property.

The “Vision of Return” document assumes that after the end of Zionist control only one state will exist between the Jordan and the sea.  The one-state solution is very complicated and has a much smaller likelihood of success than other solutions.  Possible alternatives, in additional to the two-state solution, include a federation of autonomous entities; creating parallel voluntary institutional affiliations; as well as others.  Palestinians will not necessarily benefit from the one-state solution.  What occurred in South Africa following the end of apartheid suggests that Jews could well remain dominant in a single state.  I don’t think that the right of return as a solution to the refugee problem must necessarily be implemented in the framework of a single state.

An additional problem with the document is establishing 1920 as the initial year for Palestinian claims for redress.  It isn’t clear why that year was chosen.  The British Mandate was a legal regime according to international law and was accepted by the international community.  It isn’t clear why transactions carried out and registered in the British Land Registry, or which were carried out but not registered during the Mandate period, should be viewed as controversial.  Opening up discussion about the legitimacy of the Mandatory regime and/or transactions, documents and permits issued legally by that regime could undermine many other claims, documents and registries issued and administered by the Mandatory power.  Establishing 1920 as the starting date will seriously complicate judicial investigations.

Another problem is the document’s proposal to refrain from establishing clear criteria for dealing with disagreements, but to allow the judicial institutions addressing them freedom of action and flexibility, treating each case on its merits.  That will create uncertainty with respect to the rights of each side and could weaken the economy whose resources and strength will be critical to bearing the project’s burden.  Moreover, the judicial system will be inundated and collapse under the flood of hundreds of thousands of claims; the entire process will be made extraordinarily complex.  Clear universalistic criteria should be established to handle the cases.

An additional point left to be dealt with in the future is the question of whether the flow of returnees should be managed in some manner so as to conform to the absorptive capacity of the country and its ability to provide them with services and employment.  The immediate entry of all the returnees in the absence of appropriate infrastructure to absorb them will lead to the collapse of the country’s economy.  There will be no point for refugees to move from one place to another, Economically backward. Speculation, the black market, exploitation of cheap labor, protektzia, corruption and crime will run rampant in such circumstances.  It will be necessary to prepare infrastructure for housing, education, medical and social services and employment,  ready to receive the returnees.  It is important to understand that the return must be gradual, for the good of both the returnees and the inhabitants of the country.

I disagree with another point in the document, that dealing with the host countries.  The document leaves the future nature of relations between the parties – the refugees who choose compensation over return and the countries hosting them – to the parties themselves, seeing no need to become involved.  I don’t think it possible to treat one group of refugees differently from another.  Refugees who don’t return but would rather receive compensation and remain in the host countries have the right to have their status in those countries formalized.  A solution of all the problems can occur only as part of an overall arrangement among all the parties involved, including those countries.

In my view, preparing the document was an important undertaking.  It confronts one of the greatest fears of Israeli Jews, of “Judgement Day,” an Armageddon.  Perhaps a solution to the refugee problem and the conflict will, unfortunately, occur only many years in the future.  It’s also probable that a not-inconsiderable number of the refugees will choose not to return, so that many of the fears may be unrealistic.  But it is important to present to the sides and to the international community ideas and practical, pragmatic proposals for solving the problem in a logical, just and humane manner that respects the human rights of all the sides, and particularly those of the innocent, based on the principle that the violation of one person’s human rights should not be redressed by violating the human rights of another.


Ttranslation to English: Charles Kamen

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