Truthaholics

Subscribe to Truthaholics feed Truthaholics
Exposing Truth Behind Media Spin
Updated: 18 hours 10 min ago

The Significance of #Jerusalem: A #Muslim Perspective

Mon, 2017-12-11 19:35
Vol.2 No.2 1995 / Our Jerusalem Focus The Significance of Jerusalem: A Muslim Perspective The Palestinians must control Arab Jerusalem and Muslim religious sites.      by Dr. Ziad Abu-Amr  © 2012 Palestine-Israel Journal. There is perhaps no other city in the world that has drawn the continued attention of the world community as much as the city of Jerusalem, espe¬cially among the adherents of the three monotheistic religions: Judaism, Christianity and Islam. The city’s religious centrality has generated its his¬torical and political importance, as well as its symbolic impact, but its reli¬gious position has also been at the root of a considerable controversy. . This controversy focuses on who has the greater attachment and entitlement to the city, and for whom Jerusalem has the greatest religious, cultural, historical and political importance: . “In all probability, one would never be able to gauge the degree of attachment that an individual community feels toward the city, for attachment is psychological and thus highly subjective.”1 . While the Muslims, for example, especially Palestinian and Arab Islamists, recognize the religious significance of Jerusalem to Christians and Jews, they stress the Muslim character of the city and Muslim entitlement to it, and their attachment to Jerusalem constitutes part of their doctrinal views of the city.
Religious Prominence
. Indeed, Jerusalem’s multifaceted meaning stands behind the interest of Muslims all over the world in the land of Palestine as a whole. The city has strong evocative and emotional associations and has its own place in the hearts of Muslims. It is considered the third-holiest city in Islam after Mecca and Medina in Saudi Arabia. It derives its religious prominence from being the first Qibla, the initial direction toward which the Prophet Muhammad and the early Muslim community turned their faces in prayer. The direction was changed a year and a half later to Mecca by “divine command.” . Jerusalem also derives significance from its association with Prophet Muhammad’s miraculous nocturnal journey to the city and then his ascen¬sion to Heaven. This event is mentioned in the Koran in the first verse of chapter 17, “Glory be to Him, who carried His servant by night from the Holy Mosque to the Further Mosque (al-Masjid al-Aqsa), the precincts of which We have blessed, that we might show him some of our signs.”2 . In the nocturnal journey (al-lsra’wal Mi’raj), according to Muslim tra¬dition, Muhammad was transported one night on a winged horse from Mecca to Jerusalem where he led Abraham, Moses, and Jesus in a prayer. Afterwards, Muhammad ascended to heaven accompanied by the archangel Gabriel. In this journey of ascension, Muhammad passed through the seven heavens where he encountered earlier prophets. The Dome of the Rock is the site from which Muhammad ascended.
Although some critics argue that Muhammad’s journey was spiritual and not physical, this journey has a three-fold significance: . First, it linked the city of Jerusalem with Islam in its very early days in addition to the sura which refers to Jerusalem as the first Qibla. Second, it inspired the Muslims with a bulk of lore, so much so, that Muslims all over the world celebrate that occasion every year. Third, it ushered in a new era in the life of the city because, from then on, the Muslims con¬sidered it their holy duty to protect it from the encroachment of the Byzantines and the Persians who were non-Semitic people.3 . In addition, it is believed that a Koranic verse (v. 44 of chapter 43) was revealed in Jerusalem: “Ask those of our messengers We sent before thee — Have We appointed apart from the All-Merciful, gods to be served?”4 . Omar Ibn al-Khattab, the second Muslim caliph, accepted in person the capitulation of Jerusalem which was under Byzantine rule. Omar had also located the Rock, the place hallowed by the Prophet’s nocturnal journey, and before leaving Jerusalem, he built a mosque close to the Rock. Furthermore, a number of the Prophet’s companions visited the city and at least one of them resided and died in it. . From this humble beginning to the rise, some fifty years later, of great monuments of Muslim architecture, Jerusalem’s place as the third holy city in Islam was finally established. Its Roman name was dropped and it became al Bait al-Muqaddas (the Holy House), in apposition to al¬-Bait al-Haram (the Sacred House), the appellation of Mecca. A variant of the name was Bait al-Maqdis or simply al-Quds (the Holy City). Later still it became al-Quds ash-Sharif (the Holy and Noble City). 5 . The religious significance of Jerusalem and its function as a source of reli¬gious legitimacy were also highlighted during both the Umayyad and Abbasid rule. Mu’awiyah, the first Umayyad caliph, for example, pro¬claimed himself caliph in Jerusalem, rather than in Damascus, his capital. . Under Mu’awiyah’s successor, Jerusalem became virtually the religious capital, since Mecca and Medina were in the hands of his rivals. Even when Mecca and Medina came under their control, the Umayyad caliphs contin¬ued to pay equal respect to Jerusalem. The Abbasid caliphs paid Jerusalem a similar regard, and the city remained equally significant to successive Muslim rulers, up to the Mamelukes and the Ottomans who also accorded. the city religious status equal to that of Mecca and Medina. But despite its religious significance, Jerusalem was never the capital of Islam. The selec¬tion of the seat of the Islamic Caliphate was a matter of strategy, otherwise Mecca should have been the choice. 6 .
The Religion of All Prophets
. Historically speaking, Jerusalem has generally been the site for Muslim pil¬grimage, prayer, study or residence. Al-Aqsa Mosque was a particular seat of learning. Muslim scholars came to Jerusalem from distant lands. “Just as it is true to say that the first textbook in Islam was the Koran, so it is true to say that the first school was the mosque.7 . Muslims believe in all the Jewish and Christian prophets and holy scrip¬tures. The Jewish and Christian legacies are an integral part of the Muslim legacy. Synagogues and churches are God’s shrines and their adherents are the people of the book, not heathens or unbelievers. But Muslims, on the other hand, believe that Islam, more than Judaism or Christianity, afforded the city the most tolerant period because of Islam’s nature being the religion of all prophets, from Abraham to Muhammad.8 . The Muslims ruled Jerusalem for thirteen centuries from the middle of the seventh century (638 A.D.) to the beginning of the twentieth century (1917) with the exception of about 103 years of Crusader domination. The passage of time, and certain events, served to enhance Jerusalem’s position in the Muslim tradition and history. One such event is the fall of Jerusalem to the Crusaders in 1099 which interrupted the Muslim rule of the city. Palestinian and Arab Muslims dwell a great deal on this holy war waged by the Crusaders against non-Christians, Muslims and Jews. This war, in which all non-Christian inhabitants of Jerusalem were wiped out, their property looted, and their houses occupied, is considered one of the most significant events to have shaped the Muslim outlook towards the Christian/Western world as a whole. It has yet to be ascertained if any roots of the current wave of Islamic fundamentalism actually lie in the Crusader war which marked open hostility between the Muslim and Christian/Western worlds. . In 1187 Saladdin, a Muslim leader, reconquered and recovered Jerusalem. This recovery of Jerusalem “figures larger in Islamic history than its first acquisition by ‘Umar five and a half centuries before.” 9 The coincidence of Saladdin’s entry into the city with the anniversary of the Prophet’s nocturnal journey was regarded by Muslims as providential. . The current Israeli occupation of Jerusalem (since 1967) is viewed by Palestinians and Muslims equal in magnitude to the Crusades: “By occu¬pying Palestine, the modem Crusaders have earned the enmity of all Arabs; by seizing Jerusalem, that of all Muslims. Are the modem Crusaders bent on forcing history to repeat itself?” 10 .
The Occupation
. Clear focus by Palestinian and Arab Islamists on Jerusalem began to take place after the Israeli occupation of the eastern part of the city in 1967. Vocal and repeated Muslim pronouncements on the city which stress its Arab and Islamic character came as a reaction to Israeli measures to Judaize the city and distort or wipe out its Arab and Islamic identity. They justifiably fear Jewish designs on East Jerusalem and the holy places in it, especially since Israel unilaterally annexed it after the 1967 war. . Since the rise of contemporary Arab and Palestinian fundamentalist movements, primarily as a reaction to certain political or socioeconomic factors, the holy city of Jerusalem has been a source of inspiration and mobilization to them. Therefore, the Jewish occupation of the city reminds the Islamists of Muslim and Arab weakness and of the need to rise and free Jerusalem from Jewish hegemony. It is infuriating to Arab and Palestinian fundamentalists to have their first Qibla and the third-holiest city in Islam under foreign, especially Jewish, control. . Politically, the city carries the same import to the various Palestinian political groups, secularists and Islamists alike. This fact is reflected in their various political discourse although there is no elaborate mention of Jerusalem in their respective national and political programs or charters. This stand emanates, of course, from the assumption that Jerusalem is an integral part of Palestine. Indeed, Jerusalem is the heart of Palestine. Its loss to a foreign enemy deprives the Palestinian Islamists of their unique posi¬tion as the custodians of the holy city, and their struggle to regain Jerusalem places them at center stage. . While the nationalists stress Jerusalem as the capital of the Palestinian state as inscribed in the Palestinian Declaration of Independence of 1988, the Islamists emphasize its religious nature and the fact that it is an inte¬gral part of Muslim Palestine. Genuine commitments to Jerusalem aside, there is no doubt that the various Palestinian political groups also invoke the name of the city for political reasons. . For example, the name of Jerusalem is frequently evoked in Palestinian Muslim fundamentalist literature. A leaflet issued by the Islamic Resistance Movement (Hamas) defines the status of Jerusalem and Palestine for Muslims in the following way: . Is there a spot after Mecca and Medina over which Muslim hearts hover more than Jerusalem, the first Muslim Qibla, to which worshippers come from all corners of the earth. The prayers on the land of al-Aqsa mosque equals five hundred prayers elsewhere except for the two holy mosques. Jerusalem is the cradle of religions and the shelter of prophets … The nocturnal journey was a blessing from God to the land of Palestine. This journey did not take place to any other capital or city in the world, but only to Jerusalem in order to make it the sister of Mecca in history, and in order for the Muslims to know that the concession of Jerusalem is just like conceding Mecca and Medina. 11 . Like the Palestinian Islamic groups, Arab Islamic movements do consider Jerusalem, indeed the whole of Palestine, which derives its religious sig¬nificance from Jerusalem, a Muslim religious endowment (waqf). Muhammad Hamid Abu al-Nasr, the Supreme Guide of the Egyptian Muslim Brotherhood Society which delineates doctrinal attitudes for the Muslim Brotherhood Societies in Arab countries, including Hamas, states: . We have never bargained and we shall never bargain over the land of Palestine. Palestine, all of Palestine, belongs to all the Muslims. The link between Palestine and the Muslims is derived from their commitment to the doctrine and the shari’a … Therefore, bargaining over Palestine means bargaining over our faith, our shari’a and our holy shrines. It also means renouncing and disavowing our history, our martyrs, and our heroes … Relinquishing Palestine is an act of treason … Allah ruled that we should not relinquish our homelands to our enemies. He made it imperative for us to seek the means of power and strength, and to strug¬gle against the enemies in order to regain what was usurped from us. This is the verdict of Allah and we shall not violate His verdict… 12 .
Jerusalem’s Centrality to the Palestinians
. Islamic scholars and authorities in other Arab states, described as moderate, reiterate similar positions on Palestine. The pronouncements of these schol¬ars and authorities play a role in defining the positions of their governments towards the Palestinian issue. Sheikh Abd-al-Aziz Bin Baz, the most promi¬nent religious scholar and authority in Saudi Arabia, argues that “the Palestinian problem is an Islamic problem first and last” and that the Muslims “must fight an Islamic jihad against the Jews until the land returns to its owners.”13 . Because of its significance to Muslims and Islamists alike, Jerusalem assumes political significance to rulers and governments that wish to enhance their religious legitimacy. Reference to Jerusalem by PLO Chairman, Yasser Arafat, as the “capital of the Palestinian state,” the site of the al-Aqsa Mosque, and the seat of Muhammad’s nocturnal journey is a constant part of Arafat’s discourse on the Palestinian issue. Arafat is fully conscious of the centrality of Jerusalem to the Palestinian people and to the Palestinian Islamists in particular whose attitude can be particularly con¬straining to the PLO leadership. The charter of Hamas states: . The land of Palestine is an Islamic waqf for Muslim generations until the day of judgment. It is inadmissible to abandon it or a part of it, or to con¬cede it all or a part of it… Who has the right to decide on behalf of the Muslim generations from now until the day of judgement? 14 . As in Arafat’s speeches, and even more so, Jerusalem is a fixed item in King Hussein’s speeches and statements, the reason being the King/s awareness of the place that Jerusalem occupies in the hearts and minds of his subjects, and his desire to stress his special link to the city as a descendant of the Prophet. Ever since Jerusalem and the rest of the West Bank were annexed to Jordan in 1950, the Hashemite regime took care of the city and of the holy places in it. Jordan has continued to administer and service the holy places in Jerusalem even after the Israeli occupation and annexation of the city. . Attempts by the Saudi monarch, King Fahd, to service the holy places in Jerusalem created open Jordanian anxiety. The regime of King Hussein saw these attempts as an impingement on Jordanian responsibilities. The competition over Jerusalem emanates from the historic and deep-seated suspicion between the Hashemites and the Saudi family. . Donations made by King Hassan of Morocco, on the other hand, to refurbish al-Aqsa Mosque did not arouse Jordanian concern. King Hassan, the Commander of the Faithful in his country, does not aspire to challenge the Jordanian special relationship to the city. His symbolic act was perhaps sufficient to convey a message and a reminder to his people that Jerusalem is present in his heart and mind. . The late Egyptian president, Anwar al-Sadat, conscious of the religious and symbolic significance of Jerusalem to Arabs and Muslims, including those in his country, went to al-Aqsa Mosque for prayer during his visit to Israel in 1977 in an attempt to mitigate political opposition to his visit. In fact, his assassina¬tion at the hands of Muslim militants in 1980 might be attributed to his failure to save Jerusalem from Jewish control, as the Egyptian-Israeli peace treaty did not address the issue of Jerusalem or challenge Israel’s annexation of the city. . Israeli measures in the city have acted as cause and catalyst, inflaming Muslim fundamentalist sentiments. Israel’s annexation of East Jerusalem after the 1967 war, and Israeli statements claim of the “united” city as the eternal capital of Israel fill Palestinian and Arab Islamists with anger and resentment. . Immediately after the occupation of the city, Israel destroyed the Maghariba quarter and evicted its Arab inhabitants. Israel transformed the quarter into an open square in front of the Wailing Wall for Jewish prayer. With the destruction of the quarter, two mosques, al-Buraq and al-Afdali, were also destroyed. In August 1968 a fire was set in the al-Aqsa Mosque, destroying its furniture, altar and some of its walls. The Muslims held Israel responsible and condemned it for complicity. . Al-Aqsa Mosque was also the object of repeated attempts of sabotage. In March 1980, explosives were found there, and in April 1982, an Israeli sol¬dier attacked the Dome of the Rock, killing two Palestinians and injuring forty-four others. In March 1983, a group of 46 Israelis brought explosives and placed them in the area underneath al-Aqsa Mosque; they were dis¬covered by the guards of the Mosque. . Extremist Jewish groups continue their encroachment on Muslim holy sites. One such extremist group, the Temple Mount Faithful, has repeated¬ly tried to enter al-Haram ash-Sharif to lay the cornerstone for building the Third [Jewish] Temple. During one attempt, on October 8, 1990, five thou¬sand Palestinians were on the site trying to prevent the group from enter¬ing al-Haram. A clash ensued between Palestinian and Israeli troops on the scene resulting in the death of 21 Palestinians and the injury of 150 others. Israeli excavation activities in the city are not perceived by Palestinian and Arab Islamists as innocent acts but as part of Israeli designs on the city. .
No Political Solution Without Jerusalem
. Jerusalem is part of the struggle for Palestine which ensued in the wake of the Balfour Declaration of 1917 and the British Mandate of 1922. When the United Nations Partition Plan of 1947 suggested the internationalization of Jerusalem, both the Jews and the Arabs in Palestine rejected the proposal, the Muslim rejection emanating from the view of Jerusalem as a Muslim religious endowment. . Exclusive claims to Jerusalem which are inscribed in holy scripts make compromise political solu¬tions to the problem of the city rather difficult. A per¬manent solution to the problem of Jerusalem is contingent on a solution to the question of Palestine, and vice versa. But no permanent solution to the Palestinian question is likely to take place without the resolution of the issue of Jerusalem. So far, Jerusalem remains one of the main obstacles to the realization of peace between the Palestinians and the Israelis. . The deliberate dismissal and postponement of the issue of Jerusalem might have been a primary reason for the strong Islamic opposition to the peace process. When the Palestinians went to the Madrid peace conference of October 1991, Jerusalem was not included among the documents of the conference, and Palestinians from East Jerusalem were not allowed to be members in the official delegation to the conference. In opposition to the Madrid peace conference, Arab and Palestinian Islamists hastened to take part in a con¬ference that was held in Teheran to condemn the Madrid conference and Arab and Palestinian participation in it. . Jerusalem was also absent from the Palestinian-Israeli agreement as illustrated in the Oslo Declaration of Principles, signed in Washington on September 13, 1993. Jerusalem was once again postponed to negotiations on the final status of the Occupied Palestinian Territories. The Oslo agreement was severely criticized by Arab and Palestinian Islamists. Islamic movements in Egypt, Jordan, Kuwait, the United Arab Emirates and elsewhere issued sep¬arate statements rejecting the agreement particularly because it failed to address the question of Jerusalem in addition to other issues. Palestinian Islamists issued statements to the same effect and vowed to continue the strug¬gle against Israeli occupation. Both Hamas and the Islamic Jihad attacked PLO Chairman, Yasser Arafat, personally and accused him of national treason. . Israel’s declared insistence on considering “united Jerusalem” as the eternal capital of Israel is likely to complicate efforts at finding a common denominator between the Palestinians and the Israelis regarding an accept¬able agreement on the city. In this sense, Jerusalem may continue to be an issue of severe contention between the two sides. The nature of the solu¬tion of the issue of Jerusalem is bound to condition the attitude of Palestinian and Arab Islamists toward an Arab-Israeli peace. If control over Arab Jerusalem, and definitely over Muslim religious sites, is not granted to the Palestinians, the Arabs, or the Muslims, the city will remain a source and symbol for Muslim resentment, indoctrination, mobilization and per¬haps agitation and struggle. . These ideas were first presented in a paper prepared for the Tantur Conference, May 29-June 1, 1994.  .

Endnotes 

1 Ibrahim Abu Lughod, “Jerusalem – Islamic Perspective II:’ in O. Kelly Ingram, ed., Jerusalem: Key to Peace in the Middle East (North Carolina: Triangle Friends of the Middle East, 1977), p. 53. 
2 A. L. Tibawi, “Jerusalem: Its Place in Islam and Arab History,” in Ibrahim Abu-Lughod, ed., The Arab-Israeli Confrontation of June, 1967: An Arab Perspective (Evanston: Northwest University Press, 1970), p. 12. 
3 Ishaq Musa Husaini, “Jerusalem in Islamic Perspective:’ in O. Kelly Ingram, Ibid., p. 41. 
4 Tibawi,op cit., p. 12. 
5 Ibid., p. 14. 
6 Husaini, op cit., p. 41. 
7 Tibawi,op cit., p. 18. 
8 Husaini,op cit., p. 39. 9. 
9 Tibawi,op cit., p. 21. 
10 Ibid., p. 48. 
11 The Islamic Resistance Movement (Hamas), “The Anniversary of the Nocturnal Journey Is an Escalation to the Blessed Resistance” (Al-Isra’ wal-Mi’raj Tas’id lil-Muqawama al¬Mubaraka), a leaflet issued on March 13, 1988. 
12 Muhammad Hamid Abu-al-Nasr, “Our Stand Toward the Settlement.” A statement from the Supreme Guide of the Muslim Brotherhood in Egypt, May 26, 1991.
13 James Piscatori, “Religion and Realpolitik: Islamic Responses to the Gulf War:’ in James Piscatori, Islamic Fundamentalism and the Gulf Crisis (Chicago: The American Academy of Arts and Sciences, 1991) p. 6, originally quoted from Abd-al-Aziz Bin Baz, Majmu’ Fatawa wa Maqalat Mutanawwi’a (Collection of Fatawas and Miscellaneous Articles) (Riyadh: al-Idara al-‘ Amma li’l- Tab’ wa’l Tarjama, 1408 A.H./1987), p. 271. 
14 Mithaq Harakat al-Muqawama al-Islamiyya (Hamas) [Charter of the Islamic Resistance Movement (Hamas)), August 18, 1988, p. 11.

______________________________________________________________________

ABOUT THE AUTHOR: Dr. Ziad Abu Amr (Arabic: زياد أبو عمرو‎; born 1950) is a Palestinian politician, author, and member of the Palestinian Legislative Council. From 18 March 2007 to 17 June 2007, he was Foreign Minister of the Palestinian National Authority. On 6 June 2013, Ziad Abu-Amr was appointed as Deputy Prime Minister of the Palestinian Authority by President Mahmoud Abbas.[1]

__________________________________________________________________


Filed under: World

#Zionist #LandThievery #HistoricalRevisionism: Conflict over #Waqf property in #Jerusalem!

Mon, 2017-12-11 10:08
Vol. 3 (2015) pp. 97-110
Conflict over Waqf property in Jerusalem:
Disputed jurisdictions between civil and Shari’a courts | Haitam Suleiman | Vol. 3 (2015) | Editor-in-Chief Prof. Dr. Andrea Büchler, University of Zurich, Switzerland Editorial Board
Prof. Dr. Bettina Dennerlein, University of Zurich, Switzerland
Assoc. Prof. Dr. Hossein Esmaeili, Flinders University, Adelaide, Australia
Prof. Dr. Clark B. Lombardi, Director of Islamic Legal Studies, University of Washington School of Law, USA
Prof. Dr. Gianluca Parolin, American University in Cairo, Egypt
Prof. Dr. Mathias Rohe, Friedrich-Alexander-Universität
Erlangen-Nürnberg, Germany
Dr. Eveline Schneider Kayasseh, University of Zurich,
Switzerland
Dr. Prakash A. Shah, Queen Mary, University of London, UK
Dr. Nadjma Yassari, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany
Vol. 3 (2015) | Published by
The Center for Islamic and Middle Eastern Legal Studies (CIMELS), University of Zurich, Zurich, Switzerland Suggested citation style
Electronic Journal of Islamic and Middle Eastern Law
(EJIMEL), Vol. 3 (2015), pages, http://www.ejimel.uzh.ch
ISSN 1664-5707

Conflict over Waqf property in Jerusalem:
Disputed jurisdictions between civil and Shari’a courts by Haitam Suleiman*
Table of Contents
I. Introduction: legal pluralism & disputes over waqf property …………………………….98
II. The Revival of waqf…………………………………………………………………………………………..98
III. Waqf in Palestine/Israel: special status …………………………………………………………..100
IV. Waqf land in Jerusalem: special status……………………………………………………………104
V. Conclusion……………………………………………………………………………………………………..108

Abstract
Recent revisionist academic legal historians have relocated the Israeli national story within a colonial and
postcolonial narrative, and in a global context indigenous groups dispossessed from their communal and ancestral
lands are increasingly re-asserting claims to that land through legal and human rights challenges, deploying
international human rights law relating to rights to property and minority rights. Waqf property (held in charitable
trust for religious purposes) is an important element in Muslim societies, and has been subject to large-scale
transfer to Jewish control since the creation of the state of Israel in 1948 (‘redeemed’ for the Jewish people). The role of successive Absentee Property Laws in this confiscation derives from Ottoman land tenure, as modified during the British League of Nations Mandate over Palestine, and subsequently. The Israeli legal system has, devised and
utilised various modalities and mechanisms to systematically confiscate Palestinian land in general and more
specifically the waqf, while also re-establishing shari’a courts and replacing the shari’a court of appeal in Jerusalem.
Mutawallis (managers of waqf) have to undertake ‘forum shopping’ for search for the most suitable court (between
Israeli civil and shari’a courts and the Palestinian shari’a court) to get and enforce a favourable judgment, but the
new structures leave Palestinians with no legal authority over the administration of the waqf system. Recent legal
disputes over the status of certain mosques and cemeteries (as waqf properties), and the special situation of waqf property in Jerusalem Old City are examined as sites of Palestinian resistance.

* Haitam Suleiman is a Palestinian living in Israel and currently Assistant Professor in Law at al-Quds University,
Jerusalem. This paper is based upon his PhD from Anglia Ruskin University (2009) on Reviving the Waqf in Palestine/Israel.

Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
98
I. Introduction: legal pluralism & disputes over waqf property This article explores the conflict over land in Israel/Palestine, within a context of postcolonial legal pluralism, with particular reference to Islamic property held for religious charitable
purposes (the waqf). Israel/Palestine inherits several legal traditions, offering often conflicting sources of legitimacy: Islamic, as applied by the Ottoman empire until 1918, and more recently
by Jordan in the West Bank and Egypt in Gaza; British colonial, under the League of Nations Mandate (1923-48); and post-1948 Israeli, with borrowings from United States and European jurisdictions. British colonialism’s role in building the Israeli state has been re-asserted by Shamir: “Too little attention has also been given to the basic fact that the British, aided by all their colonial experience elsewhere, created and installed a functioning state in Palestine: a rather advanced web of administrative apparatuses and governmental departments, a sound infrastructure and, of course, a fully-developed, ready-to-use legal system”.
1
English-language literature on waqf in Israel/Palestine is limited, and relevant legislation and court rulings are often unpublished, or unavailable in English. This article is able to draw upon
field research undertaken by a Palestinian Arab living in Israel, Haitam Suleiman, with Arabic,
Hebrew and English language competence, and aware of nuances of language, even body language, and cultural background. Interviewees may have sought to mislead, where questions
dealt with controversial and sensitive issues, and officials may withhold information, while the field-work was risky and interrupted by the current conflict. II. The Revival of waqf
Waqf [pl. awqaf] in Arabic means hold, confinement or prohibition, and in Islamic shari’a law is a juridical institution for the reservation of property for religious purposes. A waqf is
established by a living man or woman (the waqif = founder), who holds a certain revenue producing property and makes the (principal), inalienable in perpetuity, prohibited from sale, gift and inheritance. The property is placed under the stewardship of a fiduciary (wali or
mutawalli) who assures that the revenues pass to the intended beneficiaries (mustahiqeen). 2
Under Shari’a law, while sadaqa (charity) should reach only the poor and needy, waqf can be directed to both poor and rich; Sadaqa may be owned, sold, or granted, but the waqf is perpetual, with no intervention in ownership, and is confined to fixed property, or things that
have sustainable reserved revenues. There are three basic kinds of waqf. The first, the Khairy or charitable waqf, directs property revenues towards philanthropic goals. The second, the Ahli or family waqf, benefits family members, with the endower choosing what individuals and what lines of descent benefit; administrators are family members, and the revenue-bearing assets
1 RONEN SHAMIR, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine, Cambridge 2000, at 11.
2 SIRAJ SAIT & HILARY LIM, Land, Law and Islam: Property and Human Rights in the Muslim World, London 2006. See also,
MUSTAFA AHMAD ZARGA, Ahkam al-awqaf, [Awqaf Rulings], Dar ‘Ammar 1998.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
99
circulated indefinitely. 3 Finally, the Mushtarak or joint waqf, divided the revenues between
philanthropy and family.
Interestedly, given the contested state of waqf in Israel, the very first waqf was created by a Jewish convert to Islam who bequeathed his wealth to the Prophet for the benefit of the poor and needy. The juridical form of the waqf took shape in succeeding centuries and the jurist Abu
Yusuf (d. 798) asserted that a waqf was valid only if irrevocable and made in perpetuity. 4
Its perpetuity element distinguishes the waqf from the trusts and foundations found in Western legal systems, but it apparently influenced the early English trusts during the time of the crusades, when there was much population movement between Europe and the Holy Lands, including the Franciscan Friars. The University of Oxford in its early years may have been influenced by the waqf, with the 1264 Statutes of Merton College (significant in the founding of
the college system) showing Islamic influences.5
Awqaf flourished with the establishment of Muslim-ruled states, offering a means of diverting resources from consumption, and investing them in productive assets to provide either usufruct or revenues for future consumption by individuals or groups of individuals.6 Awqaf served many functions. They provided educational institutions with buildings, teaching materials, staff salaries, and scholarships for poor students, derived from the revenues of orchards and rental buildings, and independent of the state. They provided health services,
public kitchens, orphanages, environmental protection and animal care. Awqaf stimulated economic activity, providing shops at low rent, public water fountains, and accommodation for
commercial caravans. A range of public goods now provided by government agencies in the past came through private waqf, which have been called the most important and universal economic institution of Islamic society with reflective influence on the tax structure of the state, the redistribution of wealth in society and the urban fabric of Islamic cities.7 The waqf was an urban institution that shaped the civic space of Ottoman cities, 8 while waqf property was
estimated at over a third of the agricultural land in Turkey, Morocco, Egypt and Syria. In Recent times modern states in the Middle East however nationalized vast waqf properties,
while new municipal government services increasingly supplanted the waqf. Legislation brought waqf under greater regulation or absolute prohibition, and contributed to the
prevalence of secular law over shari’a principles, resulting in the stagnation of waqf. The family waqf was restricted, and some states forbade new creations, with the stipulations of waqf founders no longer treated as ‘sacred and inviolable’. The state claimed that the waqf was no
longer serving its original purposes, and it could administer them better. The eclipse of waqf has left a vacuum in the arena of public services; students, the sick, homeless, travellers, the 3 TIMUR KURAN, The Provision of Public Goods under Islamic Law: Origins, Contributions, and Limitation of the Waqf System, Law and Society Review, vol. 35, no. 4 (2001) 841-897, at 856.
4 PETER C. HENNIGAN, The Birth of a Legal Institution: The Formation of the Waqf in Third-Century A.H. Hanafi Legal
Discourse, London 2004.
5 MONICA M. GAUDIOSI, The influence of the Islamic Law of Waqf on the Development of the Trust in England: the Case of Merton College, 136 University of Pennsylvania Law Review (1988) 1231-1261.
6 MONZER KAHF, Financing the Development of Awqaf Property, Seminar Paper, IRTI, Kuala Lumpur, Malaysia, March 2-4, 1998.
7 FRANCIS EDWARD PETERS, Jerusalem and Mecca: The Typology of the Holy City in the Near East, New York 1986.
8 RICHARD VAN LEEUWEN, Waqfs and Urban Structures: The Case of Ottoman Damascus, Studies in Islamic Law and
Society, vol. 11, Leiden 1999.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
100
poor and prisoners are only some of the vulnerable who have lost the protection of the waqf.
The waqf is, however, showing signs of reinvigoration, with Awqaf properties occupying a
growing share of the societal wealth of Muslim countries and those with significant Muslim
minorities. Since the oil crisis of the 1970s Islamic banking has developed new tools of finance,
and waqf has emerged as a non-profit ‘third’ sector, distinct from the profit-based private sector
and the official public sector. Its institutional protections are making it again a main actor in
the social and economic life of Muslims.
9
III. Waqf in Palestine/Israel: special status
As the waqf in main is a form of property or a land, therefore its legal influence should be
attributed to the conflict over the land, ‘generally’, in the Middle East. The literature indicates
that the waqf properties as the land in general were influenced by different and various means,
mechanisms and law from those who ruled Palestine in the last two centuries. Before one
proceeds to discuss the law of waqf in Palestine it is necessary to understand first the history of
the legal system in Palestine followed by discussing the land laws in Palestine as this will help
to comprehend the entire legal issues related to waqf law. Palestine is regarded a special case
with a different status at all levels. The legal position in Palestine is simultaneously both one of
the most complicated and most rare situations. The legal system in Palestine emerged in
unsteady circumstances due to the several powers that ruled Palestine through history. The
partition of Palestine led to the creation of complex and different law systems in the West
Bank, Gaza Strip and Jerusalem in addition to the parts of the country which were occupied in
1948. The legal system in Palestine was based on the principles of the Islamic shari’a law until
the end of the Ottoman rule in 1917. The British Mandate followed and remodelled the legal
system, along with the Ottoman law-making the British introduced the principles of the AngloSaxon
system, which is based on Common Law. While the West Bank with eastern Jerusalem
inclusive was under the rule of the Hashemite Kingdom of Jordan in 1948, and the Jordanian
legal system, which is influenced by many other systems prevailed. The Gaza Strip was under
the Egyptian administration where the joint legal system of the former British Mandate
prevailed. Later the Israeli occupation imposed its military law on the West Bank and the Gaza
Strip after the 1967 war and put eastern Jerusalem subject to the local law of the Israeli occupier
after annexing it in 1980. After the Oslo Accord, the Palestinian Authority was found and the
jurisdiction of the new authority was agreed upon. The Palestinian legislators then started to
unifying and harmonizing the diverse legal systems prevailing in the Palestinian territories.
Since 1994 unifying legislation has been enacted for both the West Bank and Gaza Strip.10
Most waqf properties in Israel was expropriated under the Absentee property Law, and it is one
of the most sensitive and complicated issues in the Palestinian-Israeli conflict. Israel claims 93
per cent of its territory as public domain for the Jewish faith, and the process has isolated and
contained the surviving Arab communities within Israel, while the rest of the Palestinian
people have been displaced to peripheral locations (Gaza, the West Bank), which Israel has
9 MONZER KAHF, Towards the Revival of Awqaf: A Few Fiqhi Issues to Reconsider, Presented at the Harvard Forum on
Islamic Finance and Economics, October 1, 1999. See also, SAIT & LIM, supra n. 2.
10 HAITAM SULEIMAN & ROBERT HOME, ‘God is an Absentee, too’: The Treatment of Waqf (Islamic Trust) Land in
Israel/Palestine, Journal of Legal Pluralism and Unofficial Law, (41:59; 2009), 49-65.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
101
held under military occupation since 1967 and also has control of most of the land. During the
period 1918-48 land dominated the efforts of the British Mandate. Among the first actions of
the occupying British were to close the Ottoman land registers, prohibit all land transactions
until a new registry was installed, and transfer much jurisdiction in land matters from Islamic
shari’a courts to new secular land courts. The British colonial regime therefore had occupied the
Palestinian legal systems.
11
The British established a Supreme Muslim Council in 1921, with a president and four members,
to manage Shari’a affairs in Palestine. Its waqf activities from 1921 to 1936 were impressive:12
 Twenty-one new mosques and three minarets built, and 313 mosques repaired (notably
the Al Aqsa mosque in Jerusalem).
 224 new properties built, and 300 repaired, including shops, houses, and the waqf
building (originally the Palace Hotel in Jerusalem, after 1948 used as Government
offices).
 draining swamps, planting trees on waqf lands, and enlarging waqf lands by the purchase
of about 25,000 dunums.
 maintaining schools and scholarships for Muslim students to universities in Egypt, Syria,
and Europe.
 establishing a Moslem orphanage, training midwives.
In 1948 waqf land was estimated to comprise a sixth of the country, but estimates are unreliable,
and the Israeli government does not disclose (and may not hold) data on the extent of waqf. In
1980 the Custodian of Absentee Property estimated that about 70 percent of the land of the
state of Israel might potentially have two claimants – an Arab and a Jew holding respectively a
British Mandate and an Israeli deed to the same property.13
The concept of absentee was recognised in Ottoman law, which distinguished different
categories of absenteeism, and absentee property was theoretically held in suspense or trust.14
After 1948 Israel applied the term to the Palestinians displaced from Israel (usually over
relatively short distances, into Arab-controlled territory).15 The new Israeli state reformulated
regulations devised in 1939 by the British for wartime conditions, as the 1949 Emergency
Regulations on Property of Absentees. A Custodian of Absentee Property was instituted,
similar to the preceding Mandate Custodian of Enemy Property. The first Emergency
Regulation (Absentees’ Property) Law 1948 was contained in the Absentees Property Law 1950.
Absentee land could be restored in only very restricted circumstances: if the absentee could
prove that it was ‘for fear that the enemies of Israel might cause him or her harm’ or ‘otherwise
11 JOHN STRAWSON, Reflections on Edward Said and the Legal Narratives of Palestine: Israeli Settlements and Palestinian
Self-determination, Penn State International Law Review vol. 20 (2002) 363-384.
12 MICHAEL DUMPER, Islam and Israel: Muslim Religious Endowments and the Jewish State, Washington DC 1994.
13 DUMPER, supra n. 12.
14 FREDERIC M. GOADBY & MOSES J. DOUKHAN, The Land Law of Palestine, Tel Aviv 1935.
15 SULEIMAN & HOME, supra n. 10.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
102
than by reason of fear of military operations’. The APL caused the confiscation of two million
dunams and given to the custodian, who later transferred the land to the development
authority. After the establishment of Israel in 1948, state-owned lands previously in the
possession of British Mandatory Authorities, and the property abandoned by Arab refugees
passed into the control of the new Israeli administration. Waqf ownership passed from Muslim
hands to the Custodian, who on behalf of the state could convey the properties to Jewish
hands, disregarding shari’a law. Israel did not distinguish between waqf property and any
other land, and the Custodian of Absentee claimed waqf property on the ground that the
Supreme Muslim Council became an ‘absentee’ because most of its members were refugees.
Thus the Custodian was a conduit through which land passed to the Israeli Development
Authority, and later the Land Authority, as a means of ‘laundering’ confiscated Palestinian
land. The Absentee Law 1950 prohibited the shari’a court from their rights to supervise the
awqaf properties. The Israeli high court held that the custodian was neither a trustee over the
‘absent’ property or for the original owners of the properties, nor responsible for their
management, and the absentee was not entitled to take legal action against the custodian.16 The
five Ottoman tenure types, which were as follows:
 Mulk land (fully-owned urban freehold property). The 7 per cent of the land of Israel still
in private ownership is mostly former mulk land, mostly located within Arab villages.
 Miri land. This had heritable use rights, and could revert to the state if not cultivated
after three years (mahlul), and then be auctioned to anyone prepared to cultivate it. Miri
land represented most of the cultivable land and, where not forfeited by the refugees of
1948, was mostly acquired by the Israeli state through various means, particularly strict
application of the three-year rule. Any land shown by aerial photography as not
cultivated for a sufficient period was forfeited, not back to the village but to the state, by
means of an official declaration in words: ‘I hereby declare that the area specified in the
appendix is government property’, the appendix being a rough boundary line on the
aerial photo. This declaration was sent to the village head and posted on the land
(usually left under a stone), or made orally. The onus of proof for any counter-claim then
fell to any prior owner, who had 45 days to commission a cadastral survey and lodge an
appeal, but many owners would be unaware of the declaration, and few could afford to
mount a defence, especially when they had little hope of success in court.17
 State land required for public purposes (in Turkish matruka, meaning withdrawn) and
registered with the state or local authority. This included military bases, roads, forest
land and public open spaces within villages.
 Dead land (mawat), i.e. uncultivated, unirrigated and vacant land, needing government
consent to bring into cultivation. Islamic law defined ‘dead land’ as sufficiently far from
an inhabited place (a distance regarded as in practice a mile and a half) that a human
voice could not be heard. Mawat included the Negev desert and the 3000 sq.km. of
16 Court Case of Civil Appeal 58/54 Mahmud Habab v. Custodian of Absentee Property, (1956) 10 PD 912.
17 SANDY KEDAR, The Legal Transformation of Ethnic Geography: Israel Law and The Palestinian Landholder 1948-1967,
New York University Journal of International Law and Politics, vol. 33, no. 4 (2001) 945-949.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
103
mountain and desert east of Hebron, Jerusalem & Nablus. Article 6 of the Mandate made
it and matruka land available for Jewish settlement.
 Waqf land, held in trust for Muslim religious and charitable purposes. This was
confiscated by the state of Israel after 1948, when it comprised a sixth of the count.
A significant law in the confiscation of Palestinian lands, including waqf land, was another
modification of Mandate emergency regulations (a term carefully retained in its title: the
Emergency Regulations (Cultivation of Waste Lands) Law, amended in 1951. This law derived
legitimacy not only from Mandate law but also the Ottoman land code, which had provided
for special commissions to record abandoned villages and reclassify vacant land lying idle and
‘exposed to the sun’ (shamsieh) as state domain. Much of the land abandoned by the
Palestinians in 1948 was not recorded in the Ottoman or Mandate land registers, as many did
not register their land for fear of tax collectors and military conscription. While much urban
property was held freehold (mulk in the Ottoman system), agricultural land was classed as
Miri, in which formal and ultimate ownership was held by the State, and which if uncultivated
for three years could be reclaimed by the state. The Palestinians’ culture of the sacred waqf is
reflected in their treatment of waqf plots, often olive groves, cultivated by community
volunteers, who would afterwards meticulously clean from their clothes traces of the sacred
waqf soil. The 1951 Law, however, empowered the Ministry of Agriculture to declare lands as
‘waste’ lands (Article 2) and to take control of ‘uncultivated’ lands (Article 4). Such land could
thus be confiscated without having to confirm the absentee status of owners.
Another important law was the so-called 1965 amendment, described by Israeli scholars as a
‘reform’ of the waqf in Israel: the Absentees’ Property (Amendment No. 3) (Release and Use of
Endowment Property) Law 1965). In 1956 the Board of Trustees of the Muslim waqf, which by
then was made up of collaborators appointed by the government, who would sell or exchange
land with the ILA unaccountable to the Muslim community, leading to violence within the
community, including assassinations. The 1965 amendment represented a further stage in the
confiscation of any remaining Muslim awqaf. Authorising the transfer of waqf property to the
Custodian, denying the conditions that were attached when the property was endowed, and
ensuring that property confiscated from the waqf would not be returned, regardless of whether
the mutawalli or the beneficiary is ‘absentee’. The law empowered the Custodian to pass the
property to the Development Authority or to board of trustees, ostensibly to prevent its
neglect, but in practice to sell it for development, contradicting the fundamental perpetual
characteristic of waqf land. The Law freed the remaining waqf from restrictions under shari’a
law, and restricted the political use of funds generated from those awqaf. The amendment
granted the state a further tool to transfer the remaining waqf properties from Muslim hands to
the Jewish community through the use of Muslim ‘state appointees’ to a board of trustees. The
board fulfilled the wishes of the government that appointed them and they did not acquire
either any independence from the government or gain any credibility from the Muslim
community. Section 4 of the 1965 amended law puts all Muslim sacred places at risk, since the
custodian was authorised to sell them, and has no obligation to protect them. The effect of a
succession of Absentee Property Laws has precluded Muslims from protecting and
maintaining their sacred places, many mosques and cemeteries were subsequently transferred
by the custodian to the development authority, which sold on to Jewish investment companies,
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
104
and in the end many mosques and cemeteries were converted into museums, cafes, restaurants
or even synagogues. The remaining mosques which have not been sold are deserted, and
cannot be maintained and used by Muslims who are denied access to them.
IV. Waqf land in Jerusalem: special status
The situation with waqf property is particularly complicated in Jerusalem, because of its special
status under international law. Waqf represents some 90 percent of property within the Old
City (both Islamic and Christian).18 During the Mandate the Palestinians used waqf properties
as a buffer against the sale of land to the Jews. Jordan continues to exercise its sovereignty and
law over waqf institutions in Jerusalem through the Ministry of Waqf in Amman, and, while
Jordanian law became obsolete with the establishment of the Palestinian Authority (PA) in the
West Bank and Gaza, it still forms the legal basis for some institutions in Jerusalem where the
PA is not allowed to function.19 Jordanian control allowed the decline of waqf until 1967: only
16 new awqf were founded in Jerusalem during the 19 years of Jordanian rule, compared with
90 under the first 23 years of Israeli occupation (1967-1990), giving the waqf a central position in
Palestinian society.20 Many Jerusalem residents rent from waqf institutions. Since 1967 rents
agreed under Jordanian rule are not recognised by Israeli law, and have not increased in line
with inflation, resulting in dilapidation of much waqf property in the Old City. Israel
maintained the sovereignty of Muslim institutions and the Waqf in East Jerusalem (including
the Old City) remains under the relevant authorities in Jordan. Individual waqf property is
recorded in the Shari’a Court in Jerusalem and in the Department of Islamic Awaqf, but the
extent of waqf property in the Old City is not publicly available. Cases decided by the Shari’a
Court in East Jerusalem on rent or tenancy issues could only be enforced by the civil courts,
which are Israeli and so not recognised by the Shari’a Court. The mutawalli of family waqf
cannot resolve waqf property disputes, because a Palestinian court decision cannot be enforced,
while they refuse to take action in the Israeli shari’a court because this would be recognizing its
jurisdiction over Jerusalem. As a result of this ‘void in legal authority’, the family waqf
managers and the Administration have had to rely on moral and community pressure to
enforce decisions. Investment in property and establishing new awqaf were neglected as a
result of the uncertainty and the ambiguity, leading to property blight in Jerusalem particularly
in the Old City.21 The Tenancy Protection Act of 1954 provides that a tenant cannot be evicted
either for non-payment of rent, alterations, or sub-letting if resident for more than fifteen years.
Additionally most leases allow a tenant to sub-let with mutawalli having no control over the
sub-letting but still responsible for upkeep. Rent increases were linked to the cost of living
index, but only for rents charged in Israeli shekels, while most properties in the Old City are
charged in Jordanian dinars, tenants can avoid rent increases with support from Israeli courts.
Therefore, some landlords had changed rents to Israeli shekels, seen as more stable than
Jordanian, but deflation of the Israeli currency devalued these rents, while Israeli law prohibits
18 SAMER BAGAEEN, Evaluating the Effects of Ownership and Use on the Condition of Property in the Old City of Jerusalem,
Housing Studies, vol. 21, no. 1 (2006) 135-150.
19 YITZHAK REITER, Islamic Institutions in Jerusalem: Palestinian Muslim Administration under Jordanian and Israeli Rule,
The Hague/London/Boston 1997, at 27-28.
20 YITZHAK REITER, Islamic Endowments in Jerusalem under British Mandate, London/Portland 1996.
21 DUMPER, supra n. 12.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
105
lease revisions or eviction of tenants.22 Commercial and cultural activities could flourish with
Palestinians avoiding the full control of Israel, but investment and development were
neglected because of legal uncertainties and ambiguities, as the field-work revealed. The Israeli
district court issued an initial decision allowing itself the right to review cases related to
Islamic Waqf property in Jerusalem but with the potential to be applied all over Palestine.
1. The battle in courts
In 1951 the Ministry of Religious Affairs and the Custodian agreed that the ministry would be
directly responsible for the management of sacred places, despite the fact that they are
considered as ‘absentee’ properties, approved by the government in 1952.
23
The Protection of Holy Places Law 1967 (Article 1) states that:
“The Holy Places shall be protected from destruction and any other violation
and from anything likely to violate the freedom of access of the members of
different religions to the places sacred to them or their feelings with regard to
those places”.
This guarantee was inserted to neutralize international public opinion, but there was no clear
definition of ‘sacred place’ in the Israeli legal system. Adjudication is still governed by a 1924
Mandate law, upheld by the Israel Supreme Court, with matters relating to religious rights in
the Holy Places (including disputes between denominations of the same religion, and between
religions) decided by the government, and not adjudicated in the courts. About a third of
Muslim waqf property, principally mosques and graveyards still in use, was not expropriated
after 1948, but various approaches have been deployed to obtain the rest. More confiscations of
mosques and cemeteries are occurring, contrary to Islamic law. In the beginning of the 1990’s,
the Islamic Movement in Israel started to survey the waqf properties, intending to protect and
develop them, and to prevent attempts by Israeli authorities to change their status and sell
them off through the state-appointed trustees. Among the disputes over waqf properties was
that involving the Muslim cemetery of Haifa, (Jamia’ al-estiqlal) used since the Mandate. In 1993
the shari’a court in Haifa confirmed an agreement between two mutawallis of the in Haifa and
an Israeli company regarding a deal to develop the site, but some months later one of the
signatory mutawallis applied to the shari’a court to cancel the agreement, since the same qadi
Zaki Midlij who permitted the agreement disowned it. The mutawalli then applied to the High
Court, relying on an additional statement of qadi Midlij, in which he claimed he had been coerced
under armed threat from the company’s lawyer. The police questioned the qadi, who was
convicted and resigned as a qadi of the shari’a court of appeal. The two parties agreed to
transfer the case to the civil court in Haifa, where it is still pending. The Adalah organisation
petitioned the Supreme Court in the name of Muslim religious leaders to demand legal
recognition for the Muslim Holy Places in Israel. A special committee was formed in 2000, to
investigate the situation of Arab holy sites, with representation from the Ministry of Religious
Affairs, the Ministry of National Infrastructures, the Israel Lands Administration, and the
22 Information from Field-work interviews undertaken by the present writer in 2008.
23 SHMUEL BERKOVITS, “How dreadful is this Place!” Holiness, Politics, and Justice in Jerusalem and the Holy Places in Israel,
Carta Jerusalem 2006.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
106
Regional Committee for Arab Local Councils. The committee prepared a plan for abandoned
non-Jewish holy sites, compiling a list of 53 Muslim holy sites and 58 abandoned Muslim
cemeteries, but the Ministry of Religious Affairs did not implement the committee’s
recommendations.
In Bhmr 1931/97 the Israeli civil court held that a mosque should be considered as a sacred
place only if the property itself is sacred (the use in itself being insufficient). In Islamic law,
however, a shari’a court qadi can confirm the sacred element: mosques and graveyards
remained sacred, even without a roof. The qadi of the shari’a Court of Appeal Ahmed Natur
issued a marsoom qadai (legal decree) attempting a tougher line, legally binding on all shari’a
qadis. With the Muslim waqf places, and the sacred specifically, gradually losing their status,
with abuse of waqf properties increasingly common, has become a routine practice, with
attempts to use the shari’a courts to release them. The qadi’s marsoom was for the ‘public benefit’
of Muslims in accordance with Islamic law, and he criticised the Israeli state for confiscating
awqaf properties. He proposed procedural steps to protect the remaining awqaf from abolition,
Qadi Natour states that the shari’a qadis are not allowed to deliver any fatwa which may permit
the use of sacred waqf properties or any other awqaf, for other purposes than declared in the
waqfiya. Even if the qadi tries to rely upon shari’a judgments, they may violate basic principles.
Mosques are sacred even when closed or deserted, ‘as long as one prayer was performed
there’. The qadi cannot issue or confirm agreements on waqf property where affecting sale, rent,
or substitution. Shari’a courts appointing mutawallis should call them to account every six
months, with reports kept in an official register available to the public (this procedure
important as before many fatwas and approvals went inadequately documented). The shari’a
courts should dismiss mutawalli who misappropriate their position and made no action to
protect the waqf. The shari’a courts are not allowed to appoint mutawallis without permission of
the shari’a court of appeal, choosing only those who have good character, history and no
criminal record. The Israeli Minister of Religious Affairs, however, by letter of 3 June 1996
rejected the marsoom, claiming that qadi Natour is not authorised to issue it. Qadi Natour
challenged the minister as improperly intervening in the judicial system, arguing that the
shari’a Court of Appeal had jurisdiction.
The case of the Beer el-Sabe ‘big mosque’ first mosque in the Naqab (Negev), it was founded in
1906, Arab Bedouin sheikhs contributing half of the funding. After 1948 the mosque was
confiscated and used as a court and prison until 1953, then as a museum until 1991, but has
since been neglected and unprotected, surrounded by restaurants and bars, a municipal
building and a public garden. In 2005, the Supreme Court of Israel sat to adjudicate on a
petition submitted by ADALAH.
24 In 2002, a request was made for the re-opening of the Big
Mosque in Beer el-Sabe (Beer Sheva) to allow Muslim residents and visitors of Beer el-Sabe to
pray in it. At the time Beer el-Sabe had some 259 synagogues for 180,000 Jewish residents (one
for every 700), while the 5,000 Muslims had no mosque, not to mention the 150,000 Muslims in
the surrounding Naqab. The petition was submitted by ADALAH on behalf of the Association
for Support and Defence of Bedouin Rights in Israel, the Islamic Committee in the Naqab, 23
Palestinian citizens of Israel, against the Municipality of Beer el-Sabe the Development
24 ADALAH, The Legal Centre for Arab Minority Rights in Israel, available at http://www.adalah.org/en/content/view/6677,
last accessed 1 August 2015.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
107
Authority, the Ministry of Religious Affairs, and the Minister of Science. ADALAH argued that
free access to the mosque was protected by the right to freedom of religion. The Israeli police
force claimed that reinstating the mosque would create inter-community conflict, and, the
municipality argued, would bring the ownership of all Muslim religious sites into dispute,
even the Temple Mount and Jerusalem. ADALAH argued that maintaining the status quo would
continue discrimination against Muslims, violating the right of freedom of worship. ADALAH
added that there was no presence or representation of any Muslims from Beer el-Sabe or
elsewhere on the Committee, and that, as it was formed by and constituted of members of
various governmental offices, who are essentially a party to the dispute with an interest in
maintaining the status quo, the Committee’s recommendations were neither just nor objective 25
.
Justices Procaccia, Hayut and Jubran ordered that the parties review their positions and within
sixty days reach an agreement to change the mosque to a cultural and social centre for use by
the Muslim community of Beer el-Sabe, except for the purpose of praying. In 2009 the Supreme
Court upholds the previous decisions to disallowing Muslims to use the building as a mosque.
In the case of 2289/81 involving the waqf Alestiqlal cemetery in Haifa, the Muslim community in
Haifa petitioned in the district court to prevent the mutawallis transferring the bones of the
Muslim dead elsewhere, and to develop the site. The court claimed that it had no jurisdiction,
but referred the case to the shari’a court, which allowed the transfer, asserting that the
sacredness of a cemetery lapses after 36 years of abandonment, contrary to most Islamic
scholarship. Similar approaches have been adopted in other cases. In 232/76 (Shukri v Sharia
Court- Bagats), the court upheld and reiterated the Alistiqlal judgment. The qadi Tawfiq Asaliya
in 1969 stated that after 36 years the status of the Salma cemetery in Jaffa changed to ‘outworn’,
but he reversed that decision in 1991, now claiming that ‘the sacredness of grave-yards is
eternal and this entitlement cannot be nullified as it belongs to Allah’, so no-one should
destroy graves there. The Ijzim cemetery raised similar issues recently, with demonstrations on
site. In 1949, a Jewish settlement was built on the lands of the Palestinian village Ijzim, whose
inhabitants fled after the 1948 war. In 2002 Jewish developers bought land there which
included a graveyard of Muslim and Christian Palestinians. In 2004, (the ‘Al-Aqsa institution
for the development of waqf properties) applied to the Israeli Supreme Court to stop
construction work because of the destruction of Muslim graves. The appeal relied upon the
2004 fatwa of qadi Ahmed Natour, stating that:
“the sacredness of grave-yards is eternal and no one is permitted to remove it…
insulting graves and the cemetery for the purpose of building a residential area as in
this case is forbidden…. the landscape of the grave-yard (even though it was not used
for long time) is still considered as waqf and it cannot be confiscated, nor it can be used
for other purposes” (translated from Arabic).26
The developers disputed that the land was a cemetery, arguing that the grave-yard recognised
by the authorities was at some distance, and that local Muslims did not regard it as such, but
admitted that graves had been discovered on the site, which the Ministry of Religious Affairs
barred from removal. In 2009 the Supreme Court rejected the petition and allowed construction
to continue. The Maamano-Allah Graveyard in West Jerusalem has been another recent
25 ADALAH, supra n. 24.
26 Available at http://www.iaqsa.com/, last accessed 10 August 2015.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
108
contested case. Dating from at least the 13th century, with Muslim tradition holding that
companions of the Prophet Muhammad are buried there, the cemetery was declared absentee
property in 1955 (with no publicity in Arabic as required under Israeli law), and over the next
30 years, the municipality of Jerusalem gradually acquired ownership, with objections being
filed but over-ruled. In 2004 the Simon Wiesenthal Centre began constructing a Museum of
Tolerance on part of the cemetery, with a much-publicized ground-breaking ceremony
attended by California Governor Arnold Schwarzenegger, the Israeli President and Vice Prime
Minister, the Mayor of Jerusalem, and dignitaries and guests from around the world. The
Centre aims to ‘fortify the value of tolerance between peoples and between man to man’. When
work uncovered human graves, the Al-Aqsa institution petitioned the Supreme Court for a
provisional injunction preventing construction, and the dispute was brought to the shari’a and
civil courts, who issued conflicting judgments. In 2009 the Israeli Supreme Court confirmed
that three Muslim cemeteries (MaamanoAllah, Ijzim & Alberwa) are confiscated to Jewish
developers, against Palestinian objections.
V. Conclusion
Whilst investigating the reasons for the waqf’s decline, a great many participants have shared
the view that there is a prevalent difficulty with regard to the enforcement of shari’a courts’
judgments and this has caused a very real problem; as one interviewee (mutawalli of durri waqf
in Jerusalem) observed “if you have a rent problem with a tenant, and you take a legal action
against him, the court decision hardly can be enforced.” Another example, a conflict of laws
exists at least in Jerusalem district, where both the Israeli and Jordanian laws are applied.
Moreover, one shari’a qadi pointed out “that there is a problem with court jurisdiction. He cited
an example, where his shari’a court should have decided in disputes on waqf cases, however,
his decision was not accepted and the case was raised to the civil courts.” As a result of the difficulty with regard to jurisdiction and enforcement, there is confusion for the mutawallis who
want to take legal action to protect the waqf. As one mutawalli added “you have to search for the proper court, so that you will be able to enforce the court decision. Often you need to choose between shari’a court (either the Palestinian or the Israeli) or civil courts (Israeli).”27
Furthermore, the results show that Israel through its land policy is still confiscating waqf properties, and preventing access to them. Some recent cases emphasises this point (i.e. Maamanollah & Ijzim cemeteries). The field-work revealed; contemporary techniques of management were commonly developed to improve the efficiency of collecting revenue, i.e. a family mutawalli of a huge waqf in Jerusalem is using a highly sophisticated computer program to divide the profits over the beneficiaries. By contrast one mutawalli observes “the corruption and maladministration led to conversion of some awqaf to privately owned property, this is of course due
to the absence of enforcement by the legal system that brings into account waqf players who misappropriate their position.” The field-work indicates that there is absence of definite figures on the extent of awqaf in Israel. The Israeli government is still holding the records which show the extent and quantity of awqaf at least inside Israel. The results from previous studies are based on insufficient data. It is noted that there was contradictory results. Moreover, the literature reveals that the historic role of the waqf is considered by Israel as a threat to its physical
27 The present writer interviewed Mutawalli (waqf manager) in 2008.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
109
integrity. This assertion according to the field-work remains valid despite the physical occupation over the Palestinian community and the completion of its administrative and legal system. The results show that Israel still fully controls the waqf properties. There are different degrees of control; Israel controls waqf administration, in terms of payments of their salaries and appointment and the incumbents always have to demonstrate their loyalty to the Israeli state. The State has also re-established shari’a courts and replaced the shari’a court of appeal in Jerusalem. Such a new structure has left the Muslim qadis and officials with no legal authority over the administration of the waqf system; they were given only an advisory insignificant role.
The Ministry for Religious Affairs established a department to be responsible for the Palestinian religious community. Other communities in Israel were given a greater autonomy over the administration of their religious affairs, for instance the Absentee law exempted some of church properties from confiscation as for the Greek Orthodox Patriarchate was not considered an absentee as defined by the legislation, though in fact the patriarchate is located in Jordanian Jerusalem. The Druze were nevertheless given a relative independence over it waqf properties, the 1962 Druze Religious Courts Law had authority over personal status and endowment properties.
The main piece of legislation that has influenced the awqaf is the Absentee Law 1950 which gave rise to the confiscation of almost all waqf properties in Israel. The Third Amendment of the Absentee Property Law in 1965 described as a ‘reform’ of the waqf in Israel, has in fact, effectively implemented the priorities of the Israeli policy and completed its objective, namely, controlling the entire waqf system in Israel. The Amendment has freed the remaining waqf from the restrictions of shari’a law, i.e. sale; also, it restricted the political use of funds generated from those awqaf. Furthermore, the amendment granted the state a further tool to transfer the remaining waqf properties from Muslim hands to the Jewish community through the use of Muslim ‘state’s appointees’ board of trustees. The results show that due to the 1965 ‘reform’ many mosques and cemeteries were sold contrary to principles of shari’a law.
A modern, positivist ideology of law and the state supported the colonists/colonialists in dispossessing the colonised, and trapped the indigenous Palestinians in a world of
manipulated bureaucracy. The state of Israel came into existence in 1948 as the inheritor of a body of non-Jewish law derived from Ottoman law, as ‘enriched’ by British Mandate law. The court may intervene and issue a decision, potentially making all waqf property vulnerable to confiscation. Having driven out most of the Palestinians, it then modified the Mandate institution of the Custodian of Enemy Property, designed to hold such property in trust pending the end of hostilities, into the Custodian of Absentee Property, drawing upon the legal concept of ‘absentee’ in the Ottoman Land Code. The new state already had state and waste land transferred to it by the outgoing Mandate administration, and used its powers against absentee property to confiscate large tracts of land, both miri (or cultivated) land, taking over uncultivated or abandoned land under Ottoman provisions. It treated waqf land as little different from other absentee property, disregarding the perpetuity element conferred under shari’a law, although ‘holy’ and ‘sacred’ places were placed under special protection, and there were particular arrangements for the Old City of Jerusalem. For the Palestinians waqf property during the Mandate period had been used as a buffer against Jewish land acquisition, but this protection was gradually eroded. Palestinian attempts since the 1990s to revive waqf status and protect mosques and cemeteries from confiscation and change of use have generally been
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
110
denied in Israeli courts, while shari’a court judgments over-ruled. As expressed by the director of Awqaf in Jerusalem, petitioning the Israeli court is ‘like walking into a dark tunnel. Nobody can tell what is waiting for him at the other end’. While the waqf has successfully functioned for long periods under different conditions; its modern decline seems predictable. The legal system in Israel is a fundamental component and its exceedingly overregulated rules alongside with obstacles of enforcement procedures, made any different outcome unfeasible to achieve without retaining waqf’s autonomy and independence. Beyond doubts, the decline is due to absence of shari’a law that can embrace success, development and reform of the waqf system.

_______________________________________________________________________

This work is licensed under a Creative
Commons Attribution-NoncommercialNo
Derivative Works 3.0 Unported License
(http://creativecommons.org/licenses/by-nc-nd/3.0/).
You can download an electronic version online. You are free to copy, distribute and transmit the work under the following conditions: Attribution – you
must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the
work); Noncommercial – you may not use this work for commercial purposes; No Derivate Works – you may not alter, transform, or build upon this work.
Cover photo: © PRILL Mediendesign/Fotolia.com
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)

________________________________________________________

 


Filed under: World

#Jurisprudence: #Hanafi Legal Theory in the #OttomanEmpire: The case of the Cash #Waqf!

Mon, 2017-12-11 09:43

| truthaholics

HANAFI LEGAL THEORY IN THE OTTOMAN EMPIRE: THE CASE OF THE CASH WAQF | Firas Alkhateeb | LOST ISLAMIC HISTORY

The study of Islamic law in the Ottoman Empire is a vibrant and dynamic field. After the Mongol invasions of the thirteenth century, the early Ottoman State was an important actor in the Muslim world, re-establishing Muslim sovereignty and intellectual life in Anatolia, the Levant, and Egypt, while simultaneously expanding Islam into a new frontier in the Balkans.

It is partly for this reason that we see numerous structural innovations in the application of Islamic law in the Ottoman state. Unlike previous polities, the Ottomans established a clear hierarchy of religious schools (madrasas) with standardized curriculums that corresponded with a hierarchy of teachers and judges. They also institutionalized the office of the mufti, which had previously been a position that was a generally unofficial position separate…

View original post 1,995 more words


Filed under: World

Records of #Jerusalem deeds found in #Ottoman archives cause #Israel unease

Mon, 2017-12-11 09:28
Turkey has Jerusalem’s deed | Editor | Yeni Şafak | December 09, 2017 Records of Jerusalem deeds found in Ottoman archives cause Israel unease. 

There are 171,306 deeds recorded in 46 registries of Jerusalem in Ottoman archive records. Of these, 133,365 are private property and 37,671 belong to foundations. In addition to this, Turkey’s archives also have records of Jerusalem between the hijri years 950 and 1917.

Among the records of private property were 139 deeds belonging to Sultan Abdul Hamid II, 137 of which were transferred to the treasury in the past. The remaining two are in Jerusalem’s Erihav region. The records show that there is a plot of land approximately 30,000 square meters in size that is recorded under the name of Sultan Abdul Hamid II.

The deeds proving that Palestine belongs to Palestinians were handed to Palestinian officials. Israel did not ask for deed records from Turkey. Had Israel requested these records, it would mean that Israel would be accepting that it is occupying Palestine.

A memorandum was signed between Palestine and Jordan. Procedures such as the maintenance and repair of foundations in Jerusalem were transferred to Jordan. Therefore, in 2016, upon the request of Jordan, Turkey provided copies of the deeds of foundations in Jerusalem to Jordan.

__________________________________________________________________________


Filed under: World

Special measures in family proceedings: Part 2

Thu, 2017-12-07 20:33

dbfamilylaw

Children and vulnerable witnesses: YJCEA 1999 Pt and ABE guidance

The first article in this series of two dealt with where special provision might be appropriate for children and vulnerable witnesses in family proceedings and how, procedurally, that might be dealt with. This article looks at the type of measure which the court might provide for such witnesses in family proceedings, and these are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems yet to have put its mind to.

As Lady Hale explained in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 the existing common law remedies are, for the most part, summarised and authoritatively set out in Youth Justice and…

View original post 1,761 more words


Filed under: World

Best evidence of vulnerable witnesses: Part 1

Thu, 2017-12-07 20:33

dbfamilylaw

Intimidated witnesses in family proceedings

This first article (in a series of two) considers the evidence of any witness in family proceedings who diverges from the general procedural rules (as explained below) for evidence in family proceedings. It concerns evidence from:

  • witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010) rr 3A.4(1) and 3A.5(1));
  • children who give evidence in their own or others’ cases (and see Children’s views and evidence , David Burrows (Bloomsbury Professional, 2017);
  • witnesses who are protected parties or otherwise lack mental capacity; and
  • witnesses with learning difficulties.

Each of these categories of witness may be entitled to special measures directed by the court. Such measures may also, in some cases, be one of  the ‘measures’ available after the court has made a participation direction…

View original post 2,005 more words


Filed under: World

Government To Announce New Law Preventing Abusers From Cross Examining Victims in Family Courts

Thu, 2017-12-07 20:32

Researching Reform

A discussion in the House of Commons on Tuesday has revealed that the government will soon be announcing legislative proposals to prevent alleged and proven perpetrators of domestic violence from cross examining their partners in court. 

Criminal courts currently have legislation to prevent this from happening, but no such legal protections are offered in family courts. A sharp rise in litigants in person thanks to aggressive austerity measures, is partly responsible for an alarming new trend which features alleged abusers and proven offenders questioning their victims in court. The experience often re-traumatises vulnerable victims and can lead to severe mental health problems, with some victims even taking their own lives.

To date the only way a victim of domestic violence in The Family Court can prevent an abuser from cross examining them is by asking the judge to put Practice Direction 12J into effect, which invites the judge to step…

View original post 158 more words


Filed under: World

When can a Closed Material Procedure be used?

Thu, 2017-12-07 20:25

“As Mr Eadie recognises, there is a paradox here. The effect of the extension of the JSA 2013 to proceedings such as these is that the executive, in the form of the prosecuting authorities, can be held to account by judicial process. What is described by the Claimants as an encroachment on their fundamental rights in fact enfranchises informed and detailed scrutiny by the Courts, which would otherwise be impossible.”

UK Human Rights Blog

Belhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.

The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.

This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must…

View original post 636 more words


Filed under: World

I Am Your Resource

Thu, 2017-12-07 20:11

Dr. Craig Childress: Attachment Based "Parental Alienation" (AB-PA)

The world is changing.  The solution to “parental alienation” is coming.

There is a saying in early childhood mental health that we need to give a toddler a new food 11 times before the toddler accepts it.  The first ten times, it’s too “new” – nope, won’t try it.  But on the eleventh time it’s no longer a “new” food and the toddler will give it a try.

That’s where we are right now.  We’re introducing a new food (AB-PA) to the “toddlers” of professional psychology and the family courts.

The process that is creating the solution is all within the hands of the universe.  I can feel it on so many levels.  This is not about me.  I simply have a role to play.  My role is to be your resource.  But there are so many of us who each have our roles in bringing the attachment-related pathology of…

View original post 1,393 more words


Filed under: World

Could Donald Trump be arrested for inciting hatred when he visits the UK?

Thu, 2017-12-07 20:05

No one should be above the law

The Secret Barrister

The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs…

View original post 1,805 more words


Filed under: World

Supreme Court rules on time limitation for claims under the Human Rights Act

Wed, 2017-12-06 21:21

UK Human Rights Blog

O’Connor (Appellant) v Bar Standards Board (Respondent) [2017] UKSC 78  – read judgment

The Supreme Court has ruled that a barrister’s claim against the Bar Standards Board for discrimination should not be time barred under the one year limit prescribed by the Human Rights Act. In her case, the Court said,  the time limit for bringing proceedings only started running when she successfully appealed against disciplinary action taken against her. The decision to bring disciplinary proceedings and the subsequent hearings were part of a single process, not a series of disparate acts which set the time limitation period running.

The Court also concluded that the High Court judge was correct to conclude that the appellant’s claim of indirect discrimination in respect of her right to be treated equally under the law (Articles 14 and Article 6) did have a real prospect of success.

The following report is based on a combination of the…

View original post 910 more words


Filed under: World

Intractable contact disputes

Wed, 2017-12-06 20:47

dbfamilylaw

ENFORCEMENT OF PARENTAL CONTACT

Contact difficulties and Children Act 1989

Failure of contact (sometimes extending to what is called ‘parental alienation’) is indicative of a problem in a family where the parent’s relationship has already broken down. The law can only help as a last resort. Powers are there to provide for, and to enforce disobedience to, contact orders in Children Act 1989 (CA 1989) ss 11A-11P; though how often are these powers used in practice?

Since April 2014 orders for contact (known as ‘child access’ before CA 1989) have become known with certain other children orders as ‘child arrangements order’. This article is concerned with ‘contact’ – ie how much the parent with whom the children are not living mostly will see the children. On occasions the term ‘contact’ will be used for the sake of clarity where CA 1989 tends slightly to obfuscate the subjects by using ‘child…

View original post 3,704 more words


Filed under: World

Corporate parenting for children in care with mental health needs

Wed, 2017-12-06 20:04

Not really conducive to profit for the corporate parent which begs the question WHY there still hasn’t been one single instance of an IRO referral of a LAC back to court?

National IRO Managers Partnership

Alison O’Sullivan

Read full piece at source: Corporate parenting for children in care with mental health needs: commissioners in action

Extract:

The parents of children in families do not parent their children in isolation – they draw upon the knowledge and resources of experts, seek support from grandparents and other family members and call in favours from friends to help. And they use their influence to fight the corner fiercely for their child to get the best they can for them.

So it should be with local authorities and their partnerships. Corporate parenting should not be a lone heroic mission.

Related reading – Future in mind – Promoting, protecting and improving our children and young people’s mental health and wellbeing

Extract:

10.2 We have described a vision for our country in which child mental health and wellbeing is everybody’s business, where our collective resilience and mental strength is regarded as…

View original post 38 more words


Filed under: World

Media aids NHS rip off with out of area placements/lack of cash excuse no mention of Cygnet ‘treatment ’

Wed, 2017-12-06 15:48

Another revealing post exposing the moral bsnkruptcy and abuses of power and authority by the state through its agents thereby ultimately harming the individuals whose welfare it’s beholden to promote. When will people rise up to demand accountability?

finolamoss

Gillian Speke’s petition to get her grand daughter out of a Cygnet hospital has over 15,000 signatures and was blogged here

https://www.thepetitionsite.com/en-gb/798/440/513/release-my-grandayghter-from-detention-in-cygnet-private-hospital/?taf_id=44510916&cid=twitter

The only media coverage she, or anyone trapped in Cygnet has had is shown here.

https://m.facebook.com/story.php?story_fbid=10208226268334384&id=1832745882

It does not mention Cygnet by name, nor any of the details of her granddaughters 8 year horrific over drugged treatment.

Nor the 4 million it cost the NHS.

https://finolamoss.wordpress.com/2017/10/26/the-bipolar-cashcows-release-this-8-year-cygnet-bipolar-inpatient/

Gillian is described as a ‘Campaigner for treatment at home’, but ‘home’ is a euphemism for an in area hospital .

Another lady, whose teenage daughter is hundreds of miles away in Cygnet Bury, due to her ‘self harm‘ and Gillian speak only, as does the News Reader and the Director of Mind Charity of the ‘detrimental affect of not having relatives near’.

No mention is made of Cygnet’s interminable, over drugging ‘treatment’ nor the affect of enforced medication.

Or, of the…

View original post 632 more words


Filed under: World

TENS OF THOUSANDS IN MARCH OF SHAME IN TEL AVIV

Sun, 2017-12-03 03:54

Ziopathy: extreme delusions of grandeur by a pretend people in a pretend state, the hidden costs of such pretensions being borne by everybody else!

Desertpeace

THERE IS HOPE YET!

Tens of thousands rally in Tel Aviv against government corruption Masses march from Independence Hall on Rothschild Boulevard to Habima Square, protesting ‘attempts to pass laws that enable corruption,’ according to demonstration organizers, who added, ‘The sane MKs won’t vote for the mob laws borne out of the need to silence the police and save Bibi.’

FROM

Tens of thousands of people participated in the “March of Shame” Saturday night in Tel Aviv in protest of government corruption and what demonstrators said was foot-dragging in the investigations against Prime Minister Benjamin Netanyahu.

The march, which made its way from Independence Hall on Rothschild Boulevard to Habima Square, was organized by the same people who hold the weekly protest outside the Petah Tikva home of Attorney General Avichai Mandelblit.

Protesters in Tel Aviv; top sign: ‘There will be nothing, because we’ll make sure the public knows nothing!!!’…

View original post 7 more words


Filed under: World

Government Gives Families Right To Challenge Child Protection Orders After Toxicology Scandal

Sat, 2017-12-02 08:27

#FamilyLaw Scandal: Too little too late as UK nanny state tries to row back from total impunity?

Researching Reform

The government is offering families who may have had their children unjustly removed through the family courts free reviews of their cases, after forensic tests used to detect traces of drugs and alcohol inside people’s systems were called into question. Over 34,000 child custody cases may have been affected.

The Ministry of Justice has offered a court form, which allows families the right to have their cases reviewed free of charge where a toxicology test was carried out. Form C650 , which is called an “Application notice to vary or set aside an order in relation to children (drug and/or alcohol toxicology test after 2010)”, can be used to ask the court to set aside an order made in relation to children, after 2010.

The official statement on the MOJ website sets out families’ rights and explains that there are no fees attached to filing the form.

An…

View original post 613 more words


Filed under: World

Separate but not equal? – Rajkiran Barhey

Thu, 2017-11-30 19:56

“Out of the many issues raised by this judgment, there is space to analyse one – the degree to which the judgments were willing to take judicial notice of the wider societal context.

Reasonable people disagree as to whether a fact is so obvious that it does not require proving. For example, Gloster LJ was willing to accept as self-evident the disproportionate impact of segregation on girls, whereas the majority required evidence.”

UK Human Rights Blog

Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read  judgment

This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.

Background

Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.

View original post 1,771 more words


Filed under: World

The Real Story of How #Israel Was Created (It wasn’t the #UN)

Thu, 2017-11-30 19:50
The Real Story of How Israel Was Created (It wasn’t the UN) | Alison Weir | IFAMERICANSKNEW.ORG  | NOVEMBER 30, 2017 Israel and its partisans have been celebrating Nov. 29 as the 70th anniversary of the UN partition vote that some people believe created Israel. In reality, this vote was obtained through bribes and threats, was opposed by the U.S. State Department, and has no force of law. Individual Israelis, like Palestinians and all people, are legally and morally entitled to an array of human rights. On the other hand, the state of Israel’s vaunted “right to exist” is based on an alleged “right” derived from might, an outmoded concept that international legal conventions do not recognize, and in fact specifically prohibit.

By Alison Weir
(First published Oct. 11, 2011 in CounterPunch & AntiWar.com) 

The common representation of Israel’s birth is that the UN created Israel, that the world was in favor of this move, and that the US governmental establishment supported it. All these assumptions are demonstrably incorrect.

In reality, while the UN General Assembly recommended the creation of a Jewish state in part of Palestine, that recommendation was non-binding and never implemented by the Security Council.

Second, the General Assembly passed that recommendation only after Israel proponents threatened and bribed numerous countries in order to gain a required two-thirds of votes.

Third, the US administration supported the recommendation out of domestic electoral considerations, and took this position over the strenuous objections of the State Department, the CIA, and the Pentagon.

The passage of the General Assembly recommendation sparked increased violence in the region. Over the following months the armed wing of the pro-Israel movement, which had long been preparing for war, perpetrated a series of massacres and expulsions throughout Palestine, implementing a plan to clear the way for a majority-Jewish state.

It was this armed aggression, and the ethnic cleansing of at least three-quarters of a million indigenous Palestinians, that created the Jewish state on land that had been 95 percent non-Jewish prior to Zionist immigration and that even after years of immigration remained 70 percent non-Jewish. And despite the shallow patina of legality its partisans extracted from the General Assembly, Israel was born over the opposition of American experts and of governments around the world, who opposed it on both pragmatic and moral grounds.

Let us look at the specifics.

BACKGROUND OF THE UN PARTITION RECOMMENDATION

In 1947 the UN took up the question of Palestine, a territory that was then administered by the British.

Approximately 50 years before, a movement called political Zionism had begun in Europe. Its intention was to create a Jewish state in Palestine through pushing out the Christian and Muslim inhabitants who made up over 95 percent of its population and replacing them with Jewish immigrants.

As this colonial project grew through subsequent years, the indigenous Palestinians reacted with occasional bouts of violence; Zionists had anticipated this since people usually resist being expelled from their land. In various written documents cited by numerous Palestinian and Israeli historians, they discussed their strategy: they would buy up the land until all the previous inhabitants had emigrated, or, failing this, use violence to force them out.

When the buy-out effort was able to obtain only a few percent of the land, Zionists created a number of terrorist groups to fight against both the Palestinians and the British. Terrorist and future Israeli Prime Minister Menachem Begin later bragged that Zionists had brought terrorism both to the Middle East and to the world at large.

Finally, in 1947 the British announced that they would be ending their control of Palestine, which had been created through the League of Nations following World War One, and turned the question of Palestine over to the United Nations.

At this time, the Zionist immigration and buyout project had increased the Jewish population of Palestine to 30 percent and land ownership from 1 percent to approximately 6 percent.

Since a founding principle of the UN was “self-determination of peoples,” one would have expected to the UN to support fair, democratic elections in which inhabitants could create their own independent country.

Instead, Zionists pushed for a General Assembly resolution in which they would be given a disproportionate 55 percent of Palestine. (While they rarely announced this publicly, their stated plan was to later take the rest of Palestine.)

U.S. OFFICIALS OPPOSE PARTITION PLAN

The U.S. State Department opposed this partition plan strenuously, considering Zionism contrary to both fundamental American principles and US interests.

Author Donald Neff reports that Loy Henderson, Director of the State Department’s Office of Near Eastern and African Affairs, wrote a memo to the Secretary of State warning:

“…support by the Government of the United States of a policy favoring the setting up of a Jewish State in Palestine would be contrary to the wishes of a large majority of the local inhabitants with respect to their form of government. Furthermore, it would have a strongly adverse effect upon American interests throughout the Near and Middle East…”

Henderson went on to emphasize:

“At the present time the United States has a moral prestige in the Near and Middle East unequaled by that of any other great power. We would lose that prestige and would be likely for many years to be considered as a betrayer of the high principles which we ourselves have enunciated during the period of the war.”

When Zionists began pushing for a partition plan through the UN, Henderson recommended strongly against supporting their proposal. He warned that such a partition would have to be implemented by force and emphasized that it was “not based on any principle.” He went on to write:

“…[partition] would guarantee that the Palestine problem would be permanent and still more complicated in the future…”

Henderson specifically pointed out:

“…[proposals for partition] are in definite contravention to various principles laid down in the [UN] Charter as well as to principles on which American concepts of Government are based. These proposals, for instance, ignore such principles as self-determination and majority rule. They recognize the principle of a theocratic racial state and even go so far in several instances as to discriminate on grounds of religion and race…”

Henderson was far from alone in making his recommendations. He wrote that his views were not only those of the entire Near East Division but were shared by “nearly every member of the Foreign Service or of the Department who has worked to any appreciable extent on Near Eastern problems.”

Henderson wasn’t exaggerating. Official after official and agency after agency opposed Zionism.

In 1947 the CIA reported that Zionist leadership was pursuing objectives that would endanger both Jews and “the strategic interests of the Western powers in the Near and Middle East.”

TRUMAN ACCEDES TO PRO-ISRAEL LOBBY

President Harry Truman, however, ignored this advice. Truman’s political advisor, Clark Clifford, believed that the Jewish vote and contributions were essential to winning the upcoming presidential election, and that supporting the partition plan would garner that support. (Truman’s opponent, Dewey, took similar stands for similar reasons.)

Truman’s Secretary of State George Marshall, the renowned World War II General and author of the Marshall Plan, was furious to see electoral considerations taking precedence over policies based on national interest. He condemned what he called a “transparent dodge to win a few votes,” which would cause “[t]he great dignity of the office of President [to be] seriously diminished.”

Marshall wrote that the counsel offered by Clifford “was based on domestic political considerations, while the problem which confronted us was international. I said bluntly that if the President were to follow Mr. Clifford’s advice and if in the elections I were to vote, I would vote against the President…”

Henry F. Grady, who has been called “America’s top diplomatic soldier for a critical period of the Cold War,” headed a 1946 commission aimed at coming up with a solution for Palestine. Grady later wrote about the Zionist lobby and its damaging effect on US national interests.

Grady argued that without Zionist pressure, the U.S. would not have had “the ill-will with the Arab states, which are of such strategic importance in our ‘cold war’ with the soviets.” He also described the decisive power of the lobby:

“I have had a good deal of experience with lobbies but this group started where those of my experience had ended….. I have headed a number of government missions but in no other have I ever experienced so much disloyalty”…… “in the United States, since there is no political force to counterbalance Zionism, its campaigns are apt to be decisive.”

Former Undersecretary of State Dean Acheson also opposed Zionism. Acheson’s biographer writes that Acheson “worried that the West would pay a high price for Israel.” Another Author, John Mulhall, records Acheson’s warning:

“…to transform [Palestine] into a Jewish State capable of receiving a million or more immigrants would vastly exacerbate the political problem and imperil not only American but all Western interests in the Near East.”

Secretary of Defense James Forrestal also tried, unsuccessfully, to oppose the Zionists. He was outraged that Truman’s Mideast policy was based on what he called “squalid political purposes,” asserting that “United States policy should be based on United States national interests and not on domestic political considerations.”

Forrestal represented the general Pentagon view when he said that “no group in this country should be permitted to influence our policy to the point where it could endanger our national security.”

A report by the National Security Council warned that the Palestine turmoil was acutely endangering the security of the United States. A CIA report stressed the strategic importance of the Middle East and its oil resources.

Similarly, George F. Kennan, the State Department’s Director of Policy Planning, issued a top-secret document on January 19, 1947 that outlined the enormous damage done to the US by the partition plan (“Report by the Policy Planning Staff on Position of the United States with Respect to Palestine”).

Kennan cautioned that “important U.S. oil concessions and air base rights” could be lost through US support for partition and warned that the USSR stood to gain by the partition plan.

Kermit Roosevelt, Teddy Roosevelt’s nephew and a legendary intelligence agent, was another who was deeply disturbed by events, noting:

“The process by which Zionist Jews have been able to promote American support for the partition of Palestine demonstrates the vital need of a foreign policy based on national rather than partisan interests… Only when the national interests of the United States, in their highest terms, take precedence over all other considerations, can a logical, farseeing foreign policy be evolved. No American political leader has the right to compromise American interests to gain partisan votes…”

He went on:

“The present course of world crisis will increasingly force upon Americans the realization that their national interests and those of the proposed Jewish state in Palestine are going to conflict. It is to be hoped that American Zionists and non-Zionists alike will come to grips with the realities of the problem.”

The head of the State Department’s Division of Near Eastern Affairs, Gordon P. Merriam, warned against the partition plan on moral grounds:

“U.S. support for partition of Palestine as a solution to that problem can be justified only on the basis of Arab and Jewish consent. Otherwise we should violate the principle of self-determination which has been written into the Atlantic Charter, the declaration of the United Nations, and the United Nations Charter–a principle that is deeply embedded in our foreign policy. Even a United Nations determination in favor of partition would be, in the absence of such consent, a stultification and violation of UN’s own charter.”

Merriam added that without consent, “bloodshed and chaos” would follow, a tragically accurate prediction.

An internal State Department memorandum accurately predicted how Israel would be born through armed aggression masked as defense:

“…the Jews will be the actual aggressors against the Arabs. However, the Jews will claim that they are merely defending the boundaries of a state which were traced by the UN…In the event of such Arab outside aid the Jews will come running to the Security Council with the claim that their state is the object of armed aggression and will use every means to obscure the fact that it is their own armed aggression against the Arabs inside which is the cause of Arab counter-attack.”

And American Vice Consul William J. Porter foresaw another outcome of the partition plan: that no Arab State would actually ever come to be in Palestine.

PRO-ISRAEL PRESSURE ON GENERAL ASSEMBLY MEMBERS

When it was clear that the Partition recommendation did not have the required two-thirds of the UN General Assembly to pass, Zionists pushed through a delay in the vote. They then used this period to pressure numerous nations into voting for the recommendation. A number of people later described this campaign.

Robert Nathan, a Zionist who had worked for the US government and who was particularly active in the Jewish Agency, wrote afterward, “We used any tools at hand,” such as telling certain delegations that the Zionists would use their influence to block economic aid to any countries that did not vote the right way.

Another Zionist proudly stated:

“Every clue was meticulously checked and pursued. Not the smallest or the remotest of nations, but was contacted and wooed. Nothing was left to chance.”

Financier and longtime presidential advisor Bernard Baruch told France it would lose U.S. aid if it voted against partition. Top White House executive assistant David Niles organized pressure on Liberia; rubber magnate Harvey Firestone pressured Liberia.

Latin American delegates were told that the Pan-American highway construction project would be more likely if they voted yes. Delegates’ wives received mink coats (the wife of the Cuban delegate returned hers); Costa Rica’s President Jose Figueres reportedly received a blank checkbook. Haiti was promised economic aid if it would change its original vote opposing partition.

Longtime Zionist Supreme Court Justice Felix Frankfurter, along with ten senators and Truman domestic advisor Clark Clifford, threatened the Philippines (seven bills were pending on the Philippines in Congress).

Before the vote on the plan, the Philippine delegate had given a passionate speech against partition, defending the inviolable “primordial rights of a people to determine their political future and to preserve the territorial integrity of their native land…”

He went on to say that he could not believe that the General Assembly would sanction a move that would place the world “back on the road to the dangerous principles of racial exclusiveness and to the archaic documents of theocratic governments.”

Twenty-four hours later, after intense Zionist pressure, the delegate voted in favor of partition.

The U.S. delegation to the U.N. was so outraged when Truman insisted that they support partition that the State Department director of U.N. Affairs was sent to New York to prevent the delegates from resigning en masse.

On Nov 29, 1947 the partition resolution, 181, passed. While this resolution is frequently cited, it was of limited (if any) legal impact. General Assembly resolutions, unlike Security Council resolutions, are not binding on member states. For this reason, the resolution requested that “[t]he Security Council take the necessary measures as provided for in the plan for its implementation,” which the Security Council never did. Legally, the General Assembly Resolution was a “recommendation” and did not create any states.

What it did do, however, was increase the fighting in Palestine. Within months (and before Israel dates the beginning of its founding war) the Zionists had forced out 413,794 people. Zionist military units had stealthily been preparing for war before the UN vote and had acquired massive weaponry, some of it through a widespread network of illicit gunrunning operations in the US under a number of front groups.

The UN eventually managed to create a temporary and very partial ceasefire. A Swedish UN mediator who had previously rescued thousands of Jews from the Nazis was dispatched to negotiate an end to the violence. Israeli assassins killed him and Israel continued what it was to call its “war of independence.”

At the end of this war, through a larger military force than that of its adversaries and the ruthless implementation of plans to push out as many non-Jews as possible, Israel came into existence on 78 percent of Palestine.

At least 33 massacres of Palestinian civilians were perpetrated, half of them before a single Arab army had entered the conflict, hundreds of villages were depopulated and razed, and a team of cartographers was sent out to give every town, village, river, and hillock a new, Hebrew name. All vestiges of Palestinian habitation, history, and culture were to be erased from history, an effort that almost succeeded.

Israel, which claims to be the “only democracy in the Middle East,” decided not to declare official borders or to write a constitution, a situation which continues to this day.

In 1967 it took still more Palestinian and Syrian land, which is now illegally occupied territory, since the annexation of land through military conquest is outlawed by modern international law. It has continued this campaign of growth through armed acquisition and illegal confiscation of land ever since.

Individual Israelis, like Palestinians and all people, are legally and morally entitled to an array of human rights.

On the other hand, the state of Israel’s vaunted “right to exist” is based on an alleged “right” derived from might, an outmoded concept that international legal conventions do not recognize, and in fact specifically prohibit.

The UN General Assembly  votes on partition, November 29, 1947.

Alison Weir is executive director of If Americans Knew and president of the Council for the National Interest. See her book Against Our Better Judgment: The Hidden History of How the U.S. Was Used to Create Israel for detailed citations for the above information.  LEARN MORE:


Filed under: World

Creation of Adoption/Fostering Industry- The Blair Years.

Thu, 2017-11-30 09:41

A lucid, bold and fearless expose, laying bare the real origins and UNDEMOCRATIC dynamics behind Britain’s child protection racket, the hidden cost of which is too high.
“This draconian approach to family welfare and disregard of parents’ rights was also in stark contrast to the European Court of Human Rights’ decisions.
Which made a clear distinction between taking a child into care, where the European courts were prepared to give domestic authorities a wide margin of appreciation and was not normally in breach of Art 8, P, C and S v The United Kingdom [2002] 35 EHRR 31, as
“a temporary measure to be discontinued as soon as circumstances permit”
And the removal of parental rights by adoption, which can only be justified in exceptional circumstances.
https://www.newlawjournal.co.uk/content/social-panacea
In 2006 1,300 babies aged between a week and a month were removed from their mothers for ever, a rise of 141% in a single year and the number adopted rose from 970 in 1996 to 2,120 .
So the policy worked.
And then, just before the end of Blair’s Premiership, along came Baby P.”

finolamoss

Adoption was once voluntary, reserved for unmarried mothers and Church Adoption agencies surviving on charitable donations and the support of religious founders.

Then the Adoption Act 1976 made Local Authorities responsible for all adoptions and allowed adoption to be forced if a parent was acting unreasonably .

A once private, voluntary, and very personal matter was now controlled by the State.

And has grown into a multi million pound Corporate industry with over 90% of adoptions forced to strangers.

As only those in the care system are available, the definition of ‘harm’ has been extended ever wider effectively now allowing the state to decide who can parent.

https://www.theguardian.com/society/2017/jan/18/children-parents-foster-social-care-families-adoption

How could this have happened ?

Tony Blair knew there was a shortage of children to satisfy the ever increasing social need for family units.

And this basic need could be financially and socially exploited.

Within 2 years of his Premiership he…

View original post 630 more words


Filed under: World

#USHegemony #Banksters: Monetary Imperialism

Thu, 2017-11-30 07:47

 

Monetary Imperialism |  MICHAEL HUDSON | Counterpunch | 29 November 2017 In theory, the global financial system is supposed to help every country gain. Mainstream teaching of international finance, trade and “foreign aid” (defined simply as any government credit) depicts an almost utopian system uplifting all countries, not stripping their assets and imposing austerity. The reality since World War I is that the United States has taken the lead in shaping the international financial system to promote gains for its own bankers, farm exporters, its oil and gas sector, and buyers of foreign resources – and most of all, to collect on debts owed to it.

Each time this global system has broken down over the past century, the major destabilizing force has been American over-reach and the drive by its bankers and bondholders for short-term gains. The dollar-centered financial system is leaving more industrial as well as Third World countries debt-strapped. Its three institutional pillars – the International Monetary Fund (IMF), World Bank and World Trade Organization – have imposed monetary, fiscal and financial dependency, most recently by the post-Soviet Baltics, Greece and the rest of southern Europe. The resulting strains are now reaching the point where they are breaking apart the arrangements put in place after World War II.

The most destructive fiction of international finance is that all debts can be paid, and indeed should be paid, even when this tears economies apart by forcing them into austerity – to save bondholders, not labor and industry. Yet European countries, and especially Germany, have shied from pressing for a more balanced global economy that would foster growth for all countries and avoid the current economic slowdown and debt deflation.

Imposing Austerity on Germany After World War I

After World War I the U.S. Government deviated from what had been traditional European policy – forgiving military support costs among the victors. U.S. officials demanded payment for the arms shipped to its Allies in the years before America entered the Great War in 1917. The Allies turned to Germany for reparations to pay these debts. Headed by John Maynard Keynes, British diplomats sought to clean their hands of responsibility for the consequences by promising that all the money they received from Germany would simply be forwarded to the U.S. Treasury.

The sums were so unpayably high that Germany was driven into austerity and collapse. The nation suffered hyperinflation as the Reichsbank printed marks to throw onto the foreign exchange also were pushed into financial collapse. The debt deflation was much like that of Third World debtors a generation ago, and today’s southern European PIIGS (Portugal, Ireland, Italy, Greece and Spain).

In a pretense that the reparations and Inter-Ally debt tangle could be made solvent, a triangular flow of payments was facilitated by a convoluted U.S. easy-money policy. American investors sought high returns by buying German local bonds; German municipalities turned over the dollars they received to the Reichsbank for domestic currency; and the Reichsbank used this foreign exchange to pay reparations to Britain and other Allies, enabling these countries to pay the United States what it demanded.

But solutions based on attempts to keep debts of such magnitude in place by lending debtors the money to pay can only be temporary. The U.S. Federal Reserve sustained this triangular flow by holding down U.S. interest rates. This made it attractive for American investors to buy German municipal bonds and other high-yielding debts. It also deterred Wall Street from drawing funds away from Britain, which would have driven its economy deeper into austerity after the General Strike of 1926. But domestically, low U.S. interest rates and easy credit spurred a real estate bubble, followed by a stock market bubble that burst in 1929. The triangular flow of payments broke down in 1931, leaving a legacy of debt deflation burdening the U.S. and European economies. The Great Depression lasted until outbreak of World War II in 1939.

Planning for the postwar period took shape as the war neared its end. U.S. diplomats had learned an important lesson. This time there would be no arms debts or reparations. The global financial system would be stabilized – on the basis of gold, and on creditor-oriented rules. By the end of the 1940s the Untied States held some 75 percent of the world’s monetary gold stock. That established the U.S. dollar as the world’s reserve currency, freely convertible into gold at the 1933 parity of $35 an ounce.

It also implied that once again, as in the 1920s, European balance-of-payments deficits would have to be financed mainly by the United States. Recycling of official government credit was to be filtered via the IMF and World Bank, in which U.S. diplomats alone had veto power to reject policies they found not to be in their national interest. International financial “stability” thus became a global control mechanism – to maintain creditor-oriented rules centered in the United States.

To obtain gold or dollars as backing for their own domestic monetary systems, other countries had to follow the trade and investment rules laid down by the United States. These rules called for relinquishing control over capital movements or restrictions on foreign takeovers of natural resources and the public domain as well as local industry and banking systems.

By 1950 the dollar-based global economic system had become increasingly untenable. Gold continued flowing to the United States, strengthening the dollar – until the Korean War reversed matters. From 1951 through 1971 the United States ran a deepening balance-of-payments deficit, which stemmed entirely from overseas military spending. (Private-sector trade and investment was steadily in balance.)

U.S. Treasury Debt Replaces the Gold Exchange Standard

The foreign military spending that helped return American gold to Europe became a flood as the Vietnam War spread across Asia after 1962. The Treasury kept the dollar’s exchange rate stable by selling gold via the London Gold Pool at $35 an ounce. Finally, in August 1971, President Nixon stopped the drain by closing the Gold Pool and halting gold convertibility of the dollar.

There was no plan for what would happen next. Most observers viewed cutting the dollar’s link to gold as a defeat for the United States. It certainly ended the postwar financial order as designed in 1944. But what happened next was just the reverse of a defeat. No longer able to buy gold after 1971 (without inciting strong U.S. disapproval), central banks found only one asset in which to hold their balance-of-payments surpluses: U.S. Treasury debt. These securities no longer were “as good as gold.” The United States issued them at will to finance soaring domestic budget deficits.

By shifting from gold to the dollars thrown off by the U.S. balance-of-payments deficit, the foundation of global monetary reserves came to be dominated by the U.S. military spending that continued to flood foreign central banks with surplus dollars. America’s balance-of-payments deficit thus supplied the dollars that financed its domestic budget deficits and bank credit creation – via foreign central banks recycling U.S. foreign spending back to the U.S. Treasury.

In effect, foreign countries have been taxed without representation over how their loans to the U.S. Government are employed. European central banks were not yet prepared to create their own sovereign wealth funds to invest their dollar inflows in foreign stocks or direct ownership of businesses. They simply used their trade and payments surpluses to finance the U.S. budget deficit. This enabled the Treasury to cut domestic tax rates, above all on the highest income brackets.

U.S. monetary imperialism confronted European and Asian central banks with a dilemma that remains today: If they do not turn around and buy dollar assets, their currencies will rise against the dollar. Buying U.S. Treasury securities is the only practical way to stabilize their exchange rates – and in so doing, to prevent their exports from rising in dollar terms and being priced out of dollar-area markets.

The system may have developed without foresight, but quickly became deliberate. My book Super Imperialism sold best in the Washington DC area, and I was given a large contract through the Hudson Institute to explain to the Defense Department exactly how this extractive financial system worked. I was brought to the White House to explain it, and U.S. geostrategists used my book as a how-to-do-it manual (not my original intention).

Attention soon focused on the oil-exporting countries. After the U.S. quadrupled its grain export prices shortly after the 1971 gold suspension, the oil-exporting countries quadrupled their oil prices. I was informed at a White House meeting that U.S. diplomats had let Saudi Arabia and other Arab countries know that they could charge as much as they wanted for their oil, but that the United States would treat it as an act of war not to keep their oil proceeds in U.S. dollar assets.

This was the point at which the international financial system became explicitly extractive. But it took until 2009, for the first attempt to withdraw from this system to occur. A conference was convened at Yekaterinburg, Russia, by the Shanghai Cooperation Organization (SCO). The alliance comprised Russia, China, Kazakhstan, Tajikistan, Kirghizstan and Uzbekistan, with observer status for Iran, India, Pakistan and Mongolia. U.S. officials asked to attend as observers, but their request was rejected.

The U.S. response has been to extend the new Cold War into the financial sector, rewriting the rules of international finance to benefit the United States and its satellites – and to deter countries from seeking to break free from America’s financial free ride.

The IMF Changes Its Rules to Isolate Russia and China

Aiming to isolate Russia and China, the Obama Administration’s confrontational diplomacy has drawn the Bretton Woods institutions more tightly under US/NATO control. In so doing, it is disrupting the linkages put in place after World War II.

The U.S. plan was to hurt Russia’s economy so much that it would be ripe for regime change (“color revolution”). But the effect was to drive it eastward, away from Western Europe to consolidate its long-term relations with China and Central Asia. Pressing Europe to shift its oil and gas purchases to U.S. allies, U.S. sanctions have disrupted German and other European trade and investment with Russia and China. It also has meant lost opportunities for European farmers, other exporters and investors – and a flood of refugees from failed post-Soviet states drawn into the NATO orbit, most recently Ukraine.

To U.S. strategists, what made changing IMF rules urgent was Ukraine’s $3 billion debt falling due to Russia’s National Wealth Fund in December 2015. The IMF had long withheld credit to countries refusing to pay other governments. This policy aimed primarily at protecting the financial claims of the U.S. Government, which usually played a lead role in consortia with other governments and U.S. banks. But under American pressure the IMF changed its rules in January 2015. Henceforth, it announced, it would indeed be willing to provide credit to countries in arrears other governments – implicitly headed by China (which U.S. geostrategists consider to be their main long-term adversary), Russia and others that U.S. financial warriors might want to isolate in order to force neoliberal privatization policies.[1]

Article I of the IMF’s 1944-45 founding charter prohibits it from lending to a member engaged in civil war or at war with another member state, or for military purposes generally. An obvious reason for this rule is that such a country is unlikely to earn the foreign exchange to pay its debt. Bombing Ukraine’s own Donbass region in the East after its February 2014 coup d’état destroyed its export industry, mainly to Russia.

Withholding IMF credit could have been a lever to force adherence to the Minsk peace agreements, but U.S. diplomacy rejected that opportunity. When IMF head Christine Lagarde made a new loan to Ukraine in spring 2015, she merely expressed a verbal hope for peace. Ukrainian President Porochenko announced the next day that he would step up his civil war against the Russian-speaking population in eastern Ukraine. One and a half-billion dollars of the IMF loan were given to banker Ihor Kolomoiski and disappeared offshore, while the oligarch used his domestic money to finance an anti-Donbass army. A million refugees were driven east into Russia; others fled west via Poland as the economy and Ukraine’s currency plunged.

The IMF broke four of its rules by lending to Ukraine: (1) Not to lend to a country that has no visible means to pay back the loan (the “No More Argentinas” rule, adopted after the IMF’s disastrous 2001 loan to that country). (2) Not to lend to a country that repudiates its debt to official creditors (the rule originally intended to enforce payment to U.S.-based institutions). (3) Not to lend to a country at war – and indeed, destroying its export capacity and hence its balance-of-payments ability to pay back the loan. Finally (4), not to lend to a country unlikely to impose the IMF’s austerity “conditionalities.” Ukraine did agree to override democratic opposition and cut back pensions, but its junta proved too unstable to impose the austerity terms on which the IMF insisted.

U.S. Neoliberalism Promotes Privatization Carve-Ups of Debtor Countries

Since World War II the United States has used the Dollar Standard and its dominant role in the IMF and World Bank to steer trade and investment along lines benefiting its own economy. But now that the growth of China’s mixed economy has outstripped all others while Russia finally is beginning to recover, countries have the option of borrowing from the Asian Infrastructure Investment Bank (AIIB) and other non-U.S. consortia.

At stake is much more than just which nations will get the contracting and banking business. At issue is whether the philosophy of development will follow the classical path based on public infrastructure investment, or whether public sectors will be privatized and planning turned over to rent-seeking corporations.

What made the United States and Germany the leading industrial nations of the 20th century – and more recently, China – has been public investment in economic infrastructure. The aim was to lower the price of living and doing business by providing basic services on a subsidized basis or freely. By contrast, U.S. privatizers have brought debt leverage to bear on Third World countries, post-Soviet economies and most recently on southern Europe to force selloffs. Current plans to cap neoliberal policy with the Trans-Pacific Partnership (TPP), Transatlantic Trade and Investment Partnership (TTIP) and Transatlantic Free Trade Agreement (TAFTA) go so far as to disable government planning power to the financial and corporate sector.

American strategists evidently hoped that the threat of isolating Russia, China and other countries would bring them to heel if they tried to denominate trade and investment in their own national currencies. Their choice would be either to suffer sanctions like those imposed on Cuba and Iran, or to avoid exclusion by acquiescing in the dollarized financial and trade system and its drives to financialize their economies under U.S. control.

The problem with surrendering is that this Washington Consensus is extractive and lives in the short run, laying the seeds of financial dependency, debt-leveraged bubbles and subsequent debt deflation and austerity. The financial business plan is to carve out opportunities for price gouging and corporate profits. Today’s U.S.-sponsored trade and investment treaties would make governments pay fines equal to the amount that environmental and price regulations, laws protecting consumers and other social policies might reduce corporate profits. “Companies would be able to demand compensation from countries whose health, financial, environmental and other public interest policies they thought to be undermining their interests, and take governments before extrajudicial tribunals. These tribunals, organised under World Bank and UN rules, would have the power to order taxpayers to pay extensive compensation over legislation seen as undermining a company’s ‘expected future profits.’”[2]

This policy threat is splitting the world into pro-U.S. satellites and economies maintaining public infrastructure investment and what used to be viewed as progressive capitalism. U.S.-sponsored neoliberalism supporting its own financial and corporate interests has driven Russia, China and other members of the Shanghai Cooperation Organization into an alliance to protect their economic self-sufficiency rather than becoming dependent on dollarized credit enmeshing them in foreign-currency debt.

At the center of today’s global split are the last few centuries of Western social and democratic reform. Seeking to follow the classical Western development path by retaining a mixed public/private economy, China, Russia and other nations find it easier to create new institutions such as the AIIB than to reform the dollar standard IMF and World Bank. Their choice is between short-term gains by dependency leading to austerity, or long-term development with independence and ultimate prosperity.

The price of resistance involves risking military or covert overthrow. Long before the Ukraine crisis, the United States has dropped the pretense of backing democracies. The die was cast in 1953 with the coup against Iran’s secular government, and the 1954 coup in Guatemala to oppose land reform. Support for client oligarchies and dictatorships in Latin America in the 1960 and ‘70s was highlighted by the overthrow of Allende in Chile and Operation Condor’s assassination program throughout the continent. Under President Barack Obama and Secretary of State Hillary Clinton, the United States has claimed that America’s status as the world’s “indispensible nation” entitled it back the recent coups in Honduras and Ukraine, and to sponsor the NATO attack on Libya and Syria, leaving Europe to absorb the refugees.

Germany’s Choice

This is not how the Enlightenment was supposed to evolve. The industrial takeoff of Germany and other European nations involved a long fight to free markets from the land rents and financial charges siphoned off by their landed aristocracies and bankers. That was the essence of classical 19th-century political economy and 20th-century social democracy. Most economists a century ago expected industrial capitalism to produce an economy of abundance, and democratic reforms to endorse public infrastructure investment and regulation to hold down the cost of living and doing business. But U.S. economic diplomacy now threatens to radically reverse this economic ideology by aiming to dismantle public regulatory power and impose a radical privatization agenda under the TTIP and TAFTA.

Textbook trade theory depicts trade and investment as helping poorer countries catch up, compelling them to survive by becoming more democratic to overcome their vested interests and oligarchies along the lines pioneered by European and North American industrial economies. Instead, the world is polarizing, not converging. The trans-Atlantic financial bubble has left a legacy of austerity since 2008. Debt-ridden economies are being told to cope with their downturns by privatizing their public domain.

The immediate question facing Germany and the rest of Western Europe is how long they will sacrifice their trade and investment opportunities with Russia, Iran and other economies by adhering to U.S.-sponsored sanctions. American intransigence threatens to force an either/or choice in what looms as a seismic geopolitical shift over the proper role of governments: Should their public sectors provide basic services and protect populations from predatory monopolies, rent extraction and financial polarization?

Today’s global financial crisis can be traced back to World War I and its aftermath. The principle that needed to be voiced was the right of sovereign nations not to be forced to sacrifice their economic survival on the altar of inter-government and private debt demands. The concept of nationhood embodied in the 1648 Treaty of Westphalia based international law on the principle of parity of sovereign states and non-interference. Without a global alternative to letting debt dynamics polarize societies and tear economies apart, monetary imperialism by creditor nations is inevitable.

The past century’s global fracture between creditor and debtor economies has interrupted what seemed to be Europe’s democratic destiny to empower governments to override financial and other rentier interests. Instead, the West is following U.S. diplomatic leadership back into the age when these interests ruled governments. This conflict between creditors and democracy, between oligarchy and economic growth (and indeed, survival) will remain the defining issue of our epoch over the next generation, and probably for the remainder of the 21st century.

This article is adapted from the German edition of Super-Imperialism (2017).

Notes.

[1] I provide the full background in “The IMF Changes its Rules to Isolate China and Russia,” December 9, 2015, available on michael-hudson.com, Naked CapitalismCounterpunch and Johnson’s Russia List.

[2] Lori M. Wallach, “The corporation invasion,” La Monde Diplomatique, December 2, 2013, http://mondediplo.com/2013/12/02tafta. She adds: “Some investors have a very broad conception of their rights. European companies have recently launched legal actions against the raising of the minimum wage in Egypt; Renco has fought anti-toxic emissions policy in Peru, using a free trade agreement between that country and the US to defend its right to pollute (6). US tobacco giant Philip Morris has launched cases against Uruguay and Australia over their anti-smoking legislation.” See also Yves Smith, “Germany Bucking Toxic, Nation-State Eroding Transatlantic Trade and Investment Partnership,” Naked CapitalismJuly 17, 2014, and “Germany Turning Sour on the Transatlantic Trade and Investment Partnership,” Naked Capitalism,October 30, 2014.

Join the debate on Facebook More articles by:MICHAEL HUDSON

Michael Hudson is the author of Killing the Host (published in e-format by CounterPunch Books and in print by Islet). His new book is J is For Junk Economics.  He can be reached at mh@michael-hudson.com

Art by Stahler Skam | Photo by Nathaniel St. Clair

Pages