· H. Sandberg, The Land of the State of Israel - Zionism and Post Zionism, The Harry and Michael Sacher Institute for Legislative and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem (2007) (Hebrew)
· Haim Sandberg, "Land Expropriations of Private Arab Land in Israel - An Empirical Analysis of the Regular Course of Business", Israel Law Review, vol. 43 (2010) p. 590.
In his book and subsequent article, Haim Sandberg a law professor at College of Management Rishon Le-Zion and HUJ responds to the three critical scholars Oren Yiftachel, Alexander Kedar and Geremy Forman whose writings on the subject of expropriation of Arab land during and after the 1948 war have virtually dominated the field. Neo-Marxist critical scholars contend that the colonial model best describes the Zionist dealings with the Palestinian Arabs, a methodological decision that carries a highly negative normative implication for the Jews and the State of Israel. Using a narrative developed by historians of colonialism, Yiftachel, Kedar and Forman have provided a picture of colonial expropriation, expulsion and marginalization of a native population (Palestinian Arabs) by Western intruders (Jews). The colonial model makes no distinction between property forfeited by the Palestinian refugees on 1948 and the expropriation carried out by the State of Israel in the regular “course of business.” It does not distinct as well between expropriations and a mere declaration of a land to be a state land. Blurring that distinction has created the impression that the state has expropriated vast tracts of land from its Arab citizens, well beyond the boundaries of democratic fairness.
Accordingly, Sandberg challenges a number of assumptions of critical scholarship. To begin with, he disputes its core claim that all of Palestine was Arab land and thus, every Zionist dunam (approximately quarter of an acre) came at the expense of an Arab dunam. This critical approach negates ab initio the allocation of land to Jews and to Jewish or Zionist purposes, no matter what the nature of the land use, be it “exposed barren mountain” or unsettled land. He collected an impressive amount of data to prove that the colonial model has no basis in empirical reality. Sandberg uses this finding to support the traditional liberal-Zionist approach that Jews did not come to Palestine with an a priori intention of expropriating an indigenous population.
In his view, most of the dramatic change in pattern of land ownership was trigged by the 1948 war. Sandberg believes that the colonial paradigm is equally inappropriate to describe the development of 1948-9 since the Palestinian exodus was caused by a war which the Zionists did not initiate but succeeded in winning: “It was not a movement to transfer the land to the Jewish hands; these were the consequences of a war that the Jews actually did not initiate.” In his view, change in land ownership should be considered within the context of laws of war rather than internal property laws. This is a crucial distinction, most notably because the former does not concern itself with the issue of internal fairness, a key element in critical scholarship. The refugees problem is not an internal problem of the State of Israel but rather an international issue that Israel do incline to negotiate about its possible solution (preferably by a resettlement rather than repatriation). Sandberg notes that the use of the land expropriated from the Palestinian Arabs comports with laws of war, especially as they had waged a self-declared war of annihilation of the Jews. Israel used the expropriated land to deny the enemy a material basis, while settling immigrants and enhancing its security.
In yet another critique of the colonial model, Sandberg asserts that critical scholars artificially merged all the legal and administrative mechanisms of land transfer into one a “seamless network” to prove the state’s intention of maximizing the loses of the Arabs and gains of the Jews. Instead, he analyzes the three different legal avenues involved in land transfer: confiscation of the land of Arab absentees, expropriation for public use and land title settlement. By using the legal distinction, Sandberg is able to prove that after 1948, both Arab and Jewish ownership were targeted. Arabs could have been disproportionally affected because of overrepresentation in the banch of private property land (Only 8% of the land in Israel is privately owned though 50% of it is held by Arab Minority). Nevertheless, Sandberg demonstrates that routine expropriation carried out according to the Land (Acquisition for Public Purpose) Ordinance 1943 did not infringe disproportionately on the Arab minority. In spite of anecdotal evidence that critical scholars and other have quoted, “the Arab population’s share was fairly small in absolute terms and not significantly greater than the Jewish population share.” Indeed, he finds that “the common premise about the expropriation of Arab citizens’ land is greatly exaggerated.”
While rejecting the colonial model, Sandberg agrees with critical scholars that Arab Palestinians had suffered greatly as a result of the 1948-9 dislocation. Yet, as noted, he places their misery within the context of a war that the Zionists did not start but had the good fortune to win. It is not difficult to imagine that, with a different outcome, the Jews would have suffered equally or more.
Sandberg’s work is a much needed contribution to the complex field of land regime in Palestine/Israel. The fact that the colonial model has virtually dominated the discourse is a reflection on the academic tilt towards the neo-Marxist, critical studies paradigm than its empirical validity. Sandberg’s decision to use the liberal-Zionist paradigm offers a different ontological and epistemic perspective, while demonstrating a better fit to the question at hand. Sandberg makes no effort to pursue a comparison with the ways in which property rights of losing belligerents like Germans or Japanese have been managed, warranting some further studies.