The Great Eminent Domain Case You Never Heard About

            It’s that time again, and the silly season is upon us with front-page news of yet another official hegira to the Middle East in pursuit of the elusive peace. On the one hand there are the downtrodden Palestinians who in pursuit of their just cause want no more than to liquidate Israel, and kill the Israelis along with as many Americans as they can. On the other hand, for some strange reason, the Israelis  don’t fancy being killed so they tend to fight back when attacked — an activity that all progressive thinkers know to be intolerably wicked. So what does all that familiar and depressing stuff have to do with this blog on eminent domain, you ask? Good question. It seems that according to the front page of the New York Times, of January 11, 2008, President Bush has called inter alia for “compensating Palestinians and their descendants for homes they left in what is now Israel,” (emphasis added). That got our attention because it sounds like El Presidente has wandered onto our turf, and since compensation for lost property is our bag, some comment appears appropriate.

We hope that this won’t come as too much of a shock to  our readers, so maybe you better sit down before going on, but in spite of all the propaganda on this subject, the Israelis have already paid for those Arab homes, at least for those of them whose Arab owners would accept payment, and have for years stood ready to pay the others if they would only take the money. We understand that this is not what you have been reading in your newspaper, nor what you have seen and heard on the tube, but that’s the way it is. Since your faithful servant is well into what’s sometimes called the “golden years,” we realize that there are many younger folks out there who have not lived through these events and may think of them as history rather than as current events, so it may be a good idea to review the bidding so to speak.

When Israel accepted the UN partition of the British Palestine mandated and declared its independence in 1948 it was promptly attacked by a half-dozen Arab armies plus a bunch of irregulars under the leadership of a guy named el Kawukji. The ideological godfather of this genocidal effort was Haj Amin al Husseini, the Grand Mufti of Jerusalem, who spent World War II in Germany, helping Hitler to raise SS troops from the Moslem communities in the German-occupied Balkans. Having seen that in WW II nobody lifted a finger to save the Jews from being exterminated by the Germans, good ol’ Haj Amin figured that he could do an encore in the Middle East. And so, when instead of prosecuting him, the Britsh released him all those attacking Arab worthies, under his leadership, made no bones about their aim which was to “drive the Jews into the sea” as they never tired of asserting, seize their land and keep it. The strategy of the attacking Arabs was to persuade or intimidate their Arab compatriots to leave their homes and get out of the way of the advancing Arab armies, giving them a clear field of fire, the idea being that once the Jews were duly driven into the sea, those Arabs could return to their abandoned homes and seize the homes of the departed Jews as well. What a deal!

But it didn’t work out that way. Even before the fighting started, Arab leaders decamped for safe places outside the British-controlled Palestine Mandate territory, and the Arabs on lower socio-economic rungs of their ladder figured out that they had been abandoned by their betters, so many of them  sensibly responded to the Arab Higher Committee’s threats and importunings and split too. But as you know, in spite of their inferior armaments and lack of modern armor and artillery, the Israelis kicked ass. With the exception of the British-led, British-armed and British-financed Transjordanian Arab Legion which crossed the Jordan River and captured and hung on to Judea and Samaria (which became known in the press as “the West Bank,”) the Arab armies skedaddled in large numbers. That left high and dry those unfortunate Arabs who listened to their leaders and left their homes, only to be left homeless and herded by their own compatriots into wretched refugee camps.

But all those heady military deeds of derring-do left Israel with a problem: what to do with the Arab properties whose erstwhile owners fled, leaving their homes behind? To deal with this problem, in 1950 Israel established an office of Custodian of Absentee Property, who took charge and under the terms of Israeli law would return possession of those abandoned properties to any Arab owner who presented evidence of ownership. Many Arabs regained their land in this fashion. Later, under the Israeli Land Acquisition (Validation and Compensation) Law of 1953, the unclaimed Arab land was acquired by eminent domain and its record owners were paid its fair market value with interest, or at least, the money was made available to those of them who would take it. But believe it or not, many Arabs refused to accept their compensation. Why? Some took the extremist position that any dealings with Israel implied its recognition and they would have none of that, or they were intimidated into inaction by Arab extremists’ threats of violence. Remember that it is Arab law (including the law of our Glorious Ally, Jordan), that selling land to a Jew is a capital offense.

But in spite of the Arab extremists’ threats, by 1994 some 14,692 absentee Arab land owners claimed their compensation, and settlements were reached as to 200,905 dunams of land (a dunam is about 0.25 acre). A total of 9,956,828 shekels (approximately $2,457,000) was paid as compensation. In addition, 54,482 dunams of land were granted to Arab farmers as a substitute for their cultivated land – a measure of compensation that is more generous than what is available here in the good ol’ U.S. of A when land is taken by eminent domain. If these acreages seem modest to you, remember that we are not dealing here with endless Nebraska ag land – remember that this is the arid, barren Middle East where cultivated land comes in much smaller tracts than what we are accustomed to, and where the whole shebang could probably fit into San Bernardino County..

The problem was complicated (and still is) because under Ottoman Turkish, British, Jordanian and pre-1967 Israeli law some of the land in question was so-called miri land, a type of state-owned land on which some Arab claimants had been squatting without complying with local law and perfecting title.

No doubt, what happened to those Arabs who naively followed the bad counsel of their extremist leaders was a tragedy that war often brings. But in this case the war was started by the Arabs’ 1948 attempt to destroy Israel and exterminate its people. So the tragedy that befell so many of them was self-inflicted — a harsh case of just deserts.

To hark back to the beginning of this post, we don’t know what President Bush was thinking when he called for “compensating Palestinians for homes they left in what is now Israel.” Most likely, he was uninformed when he spoke. Under U.S. law the government goes into conniption fits at the very mention of double compensation in eminent domain cases, so why plump for it over there? But the President must have meant something, even though the nature of that something is a mystery to us. If any of our readers know what the Pres was talking about, by all means let us know.

Oh, we almost forgot. At the time these things happened, some 800,000 Jews had their property seized without cause and without compensation, and were driven out of Arab countries. But we don’t see anything in the New York Times abour President Bush urging compensation of these folks by their Arab tormentors. We wonder why. Maybe it’s just a manifestation of what Arab apologists like to call “even handed treatment” of the parties to that conflict.

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