Background
"Jewish Lands" in Judea and Samaria, are all lands purchased by Jews, throughout the ages, before Jordanian rule was established, in 1948.
During the war of independence, the mandatory Jordanian legions conquered the area of Judea and Samaria, and in 1950 annexed the area. In the aftermath of the Jordanian occupation of the area, the appointed Jordanian governor published proclamation 55, declaring all residents of Israel as "enemies" of the state. This declaration enabled the application of the Trading with the Enemy Act, 1939, to the property of Israelis in the area.
According to the act, a Jordanian custodian was appointed to manage enemy property including all the "Jewish Lands". In turn the authorities of the Jordanian Kingdom used the lands for various purposes, including leasing and renting the land to the citizens.
When the Israeli forces entered the area, in 1967, The Proclamation with Regard to the Order of Government and Law (Judea and Samaria)(number 2)- 1967 was published, stating that the law in force as of 7.6.1967 would continue to remain in effect, insofar as it did not conflict with the proclamation, or any other specific directive of the military command in the area. This proclamation was in accordance with the requirement under international law to respect, as much as possible, the law in force in any occupied territory.
According to the Order With Regard to Government Land (Judea and Samaria)(number 59)- 1967, and in accordance with ordinance 55 of the annex to the 4th Hague convention of 1907, the supervisor of governmental property was appointed to administrate all property that belonged to the previous Jordanian government, including any land previously put in the custody of the Jordanian custodian of enemy property.
Accordingly "governmental property", including "Jewish Lands", was transferred to the care of the "supervisor of governmental property", in the area. This arrangement was discussed and approved of by the Israeli Supreme Court in various cases (HCJ 1285/93 Schechter Estate v. The Judea and Samaria Military Commander 96(4) tk-al, at pg. 15 (1996)(Isr.); HCJ Valero v. State of Israel, Nevo (06.02.11)(Isr.). and others).
Original Owner's Link to Property Classified as "Enemy Property"
The purpose of the trading with the enemy act is twofold: disassociating the enemy from his properties and protecting such properties by a custodian till a peace settlement is achieved. Thus an integral part of the act is removing any link between the enemy and his property, this from a perception that this can be used to broker a future peace treaty. (Eyal Zamir, Eyal Benvinishti, Jewish Lands in Judea, Samaria, Gaza Strip and East Jerusalem (1993) at pg. 36-19,40).
The classification of property as enemy property revokes the previous owner's rights to the property, and leaves him only with an expectation of recovering his rights exclusively in accordance with any future peace treaty.
According to the Supreme Court, when the war is over, the parties can recreate the original rights which are non-existent until such action is taken. This possibility is not a requirement, but rather is simply an option present to the parties of a peace treaty, an option which likely would take into consideration any third party rights established in the meantime.
Once property was transferred into the custody of the Jordanian Custodian of Enemy Property, he could use the property as his own. The Israeli supervisor of governmental property is endorsed with the same rights, and can administer the property as he sees fit. However, since the supervisor is entrusted with the property of the previous government, he may not harm the property or release it from his care.
This conclusion is in accordance with the rules of international law which allow managing and profiting from enemy property, while at the same time prohibiting destruction of enemy property.
Current Legal Policy
Currently, the policy of the supervisor in Judea and Samaria is, to keep in its custody all "enemy property" that was transferred into governmental ownership, and not to release it.
This policy prohibits release of the property back to prior owners, or paying of their value to such persons, until a final settlement of the area is agreed upon.
This policy, supported by legal and political considerations, was examined by the Supreme Court in the aforementioned HCJ Valero.
In the Valero case, the Supreme Court ruled that this policy is a reasonable policy that is supported by important social, political and security concerns, which are based on the main purposes of the occupation of the area- including protection of the areas peace and security and concern for the needs of the areas protected persons.
No comments:
Post a Comment