By Noa Levy, Eitan Bronstein Aparicio, March 2013 Zochrot
The following text adds to “Vision of Return,” the document published by Zochrot and Badil after their representatives participated in the Capetown conference. It discusses one aspect of the return of Palestinian refugees – returning to the family house (or apartment) if it’s still standing and hasn’t been significantly altered since the Nakba. The return of homeowners whose houses no longer exist or which have been altered beyond recognition requires a different solution, because you can’t return to a house that doesn’t exist.
The issue of the house which still stands is one that is particularly sensitive and loaded, because it embodies dispossession most clearly: Israelis living in the actual homes that, until the Nakba, belonged to Palestinians. Supporters of the right of the return are always asked, “What if the refugees demand their homes back? Does that mean that the Israelis living in them have no rights, and won’t have anywhere to live?”(1)
It should be remembered that Israel demolished most of the homes that belonged to Palestinians. Ariella Azoulay notes that Israel demolished more than 100,000 buildings during 1948 and 1949.(2) But there is no reliable information on how many buildings still exist that haven’t undergone significant structural changes. The authors estimate they number a few thousand, primarily in Jerusalem, Jaffa and Haifa, and in a few villages like Ayn Hawd and Ayn Karim.
“Vision of Return” proposes three main ways to implement the return:
1. “Fast track” return of individuals, including citizenship and a limited compensation package to enable the refugee to return immediately and find a place to live;
2. Communal return, in which a community organizes its return to a particular locality, its members determine jointly its future structure and they develop a comprehensive plan detailing the use to which available land will be put;
3. Rapid construction of public housing and inexpensive housing projects in cities where reasonable employment opportunities are available.
This text doesn’t address these options, but focuses instead on the situation in which the refugee’s home still stands and is now inhabited by Jewish (or Arab) Israeli citizens who bought it in good faith in the open market.
For this scenario to exist, the refugees or their heirs must demand the return of their home and present proof of their ownership. In such a case, both sides have rights: the Palestinian refugees, who were the former owners of the house until Israel dispossessed them, and their heirs, on the one hand; the current occupants of the home, who bought the house in good faith, on the other.(3)
The outcome preferred by those who wrote the document was for the parties to reach an agreement through mediation. Each would be offered compensation equivalent to the full value of the property in return for relinquishing their right to it. If the either the refugee or the current occupant relinquishes to the other their right to the house, they would receive a sum equivalent to the full market value of the property.
We estimate that most buildings remaining from 1948 would be expensive, either because they are old and of architectural interest or because of they are centrally located in Jaffa, Haifa and Jerusalem. The value of the property will always be greater than the value of alternative housing. Thus, both sides will have a financial incentive to give up the house and receive its full monetary value. The refugee will have the right of first refusal. If they decline to relinquish the house, the current occupant will have the opportunity to do so.
There may be quite a few cases in which neither side relinquishes their right to the house. In such cases, we propose distinguishing between legal ownership of the property and its possession and use – that is, the refugee will be granted legal ownership and the current occupant will continue, for now, to live there.
The current occupant who declines to compromise with the refugee, will continue to live in the home for the rest of their life. They won’t be forcibly evicted, but will not be able to bequeath it to their children. The Palestinian refugee will immediately be inscribed in the land registry records as the owner of the property, and the current occupant will be unable to conduct any transaction involving the property before it comes into the refugee’s possession.
The rationale for this basic principle is that it is inconvenient to both parties. The refugee must wait for the death of the person possessing the house, which may not occur for decades. If, on the other hand, the refugee relinquishes their right to return to live in the house, they will receive its full monetary value. Although the current occupant, who is in possession, will be able to remain in the house, they will not be able to bequeath it to their descendants or carry out any future transaction involving the property. But if they relinquish the house they will receive its full monetary value, which they can use for any purpose they choose, including bequeathing the money to their descendants. Both sides, therefore, have an incentive to compromise.
Here is an example of a possible compromise:
Both parties can agree that the current occupants of the house may remain in possession for five more years until their children are grown and leave home. The current occupant will then receive 80% of the home’s value and the refugee will receive 20%, their compensation for having to wait five more years to regain the property.
The authors of the document disagreed among themselves regarding the possible case of a refugee - not their descendants, who the authors assume will comprise the overwhelming majority of cases - who had lived in the house until 1948 and wished to return to it:
Eitan: In such cases the current occupant must leave within a short time – about six months – in return for full compensation, because the right of the original refugee has priority over the right of the current occupant, not only regarding ownership but also regarding possession. If the refugee must wait until the death of the current occupant, it’s clear their right of possession will never be exercised.
Noa: There’s no need to make an exception for refugees who themselves used to live in the house. The arrangement proposed balances fairly the rights of both parties. Moreover, forcing someone to leave their home is not an appropriate route to reconciliation between Israelis and Palestinians when the conflict ends.
The authors of the text managed to find a living Palestinian refugee who met the above conditions and asked what he thought.
Darwish Tsarafi was born in Mas'udiyya (Summayl), in a building whose address today is 25 Ben Sarouk Street in the center of Tel Aviv. He was 7 years old in 1948; today he lives in Jaljulia. He wouldn’t even consider returning to the house in which he was born. “I wouldn’t want to be a foreign body there in Tel Aviv.” He fears he would have no place in the heart of the Jewish city as a member of the Palestinian minority. “I wouldn’t want to raise my children in Tel Aviv; they’d get lost there.” He admits that he’s a strict parent; the city offers too many temptations and the children can’t be controlled. He’d want the 20 dunums his family owned in Rishpon returned to him, and to receive a Palestinian passport.
Darwish’s practical approach to his house encourages those wishing to demonstrate that the right of return can be implemented without creating a new, endless conflict over the issue of privately owned homes. Even if a bureaucratic solution must be imposed in certain cases, we believe the damage involved will be much less than some may fear in connection with this fraught topic.
(1) Na’ama Carmi wrote a relevant post (in Hebrew) about a decision of the European Court of Human Rights regarding a claim by Greek Cypriot refugees demanding the return of their homes on the “Turkish” side of the island.
(2) Ariella Azoulay, Civil Imagination: The Political Ontology of Photography (in Hebrew), Resling, Tel Aviv, 2010, p. 123.
(3) They are referred to by various terms (e.g., “second occupant”). We refer to them as the “current occupant.” They have legal property rights: when a property is sold by an individual or by a company who is not the owner of the property, the law allows the purchaser who fulfills the “market overt” to retain ownership despite the faulty transaction. At the time of the transaction it appeared as if the seller had purchased the property from its previous owner, but later it transpired he had stolen it; had that fact been known prior to the sale, the seller would not have been able to sell the property. The purpose of the “market regulations” is to uphold the public interest in the orderly functioning of the market. Attorney Arieh Yampoler has written an interesting article on the topic.
Noa Levy is a lawyer and political activist; Eitan Bronstein Aparicio is Zochrot founder.