Is Hamas's Charter an Insurmountable Obstacle to Peace?

If you ask most Americans what a waqf  (plural, waqfs or awaqf) is they might answer that it is something to stir-fry their vegetable in or that it is a word from a Klingon dictionary.  Actually, understanding what waqfs are is essential to understanding why Hamas refuses to recognize Israel's right to exist.  Trying to understand Hamas's position without understanding what a waqf is is like parachuting into Pakistan wearing nothing but an American flag T-shirt.  You may as well apply for the Darwin awards because your understanding will be fatally flawed.

So what is a waqf ?  A waqf is like a holy charity or a holy trust fund, with the accent on the "holy".  Any non-perishable property such as land, jewelry, or even books can be donated to a waqf, just as one could donate property to a foundation.  However, unlike a foundation, the donation to a waqf is considered sacred and must, with very rare exceptions, be held in the trust forever.

There are several types of waqfs.  The most important  category of waqfs are those waqfs that are set up to support a mosque or religious instruction.  Waqfs can be used for other educational purposes or they can be used to set up charities for the poor.  The purpose of each waqf is spelled out when it is established, and any property donated to the waqf must be used for that purpose and only that purpose.  The property cannot be given to anyone else and it cannot be sold.  Under very rare circumstances, land can be swapped for other land of equal value, but this is not an easy thing to do and special courts are used to oversee any such transaction.  Once property goes into a waqf, it stays there, and there is very little wiggle room to remove the property from a waqf.

What does this have to do with the Israeli/Palestinian conflict?  To answer this you must look at articles  Eleven and Thirteen of Hamas' Charter.  The following translation is provided by The Jerusalem Fund For Education and Community Development.

Article Eleven: The Strategy of Hamas: Palestine is an Islamic Waqf
The Islamic Resistance Movement believes that the land of Palestine has been an Islamic Waqf throughout the generations and until the Day of Resurrection, no one can renounce it or part of it, or abandon it or part of it. No Arab country nor the aggregate of all Arab countries, and no Arab King or President nor all of them in the aggregate, have that right, nor has that right any organization or the aggregate of all organizations, be they Palestinian or Arab, because Palestine is an Islamic Waqf throughout all generations and to the Day of Resurrection. Who can presume to speak for all Islamic Generations to the Day of Resurrection? This is the status [of the land] in Islamic Shari’a, and it is similar to all lands conquered by Islam by force, and made thereby Waqf lands upon their conquest, for all generations of Muslims until the Day of Resurrection. This [norm] has prevailed since the commanders of the Muslim armies completed the conquest of Syria and Iraq, and they asked the Caliph of Muslims, ‘Umar Ibn al-Khattab, for his view of the conquered land, whether it should be partitioned between the troops or left in the possession of its population, or otherwise. Following discussions and consultations between the Caliph of Islam, ‘Umar Ibn al-Khattab, and the Companions of the Messenger of Allah, be peace and prayer upon him, they decided that the land should remain in the hands of its owners to benefit from it and from its wealth; but the control of the land and the land itself ought to be endowed as a Waqf [in perpetuity] for all generations of Muslims until the Day of Resurrection. The ownership of the land by its owners is only one of usufruct, and this Waqf will endure as long as Heaven and earth last. Any demarche in violation of this law of Islam, with regard to Palestine, is baseless and reflects on its perpetrators.

Article Thirteen: Peaceful Solutions, [Peace] Initiatives and International Conferences

[Peace] initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem, are all contrary to the beliefs of the Islamic Resistance Movement. For renouncing any part of Palestine means renouncing part of the religion; the nationalism of the Islamic Resistance Movement is part of its faith, the movement educates its members to adhere to its principles and to raise the banner of Allah over their homeland as they fight their Jihad: “Allah is the all-powerful, but most people are not aware.” From time to time a clamoring is voiced, to hold an International Conference in search for a solution to the problem. Some accept the idea, others reject it, for one reason or another, demanding the implementation of this or that condition, as a prerequisite for agreeing to convene the Conference or for participating in it. But the Islamic Resistance Movement, which is aware of the [prospective] parties to this conference, and of their past and present positions towards the problems of the Muslims, does not believe that those conferences are capable of responding to demands, or of restoring rights or doing justice to the oppressed. Those conferences are no more than a means to appoint the nonbelievers as arbitrators in the lands of Islam. Since when did the Unbelievers do justice to the Believers? . . .  There is no solution to the Palestinian problem except by Jihad. The initiatives, proposals and International Conferences are but a waste of time, an exercise in futility. . . .

Wow! After reading this, it's hard not to throw your hands up in despair.  Hamas believes that ALL the land of Palestine,  including the land of Israel, was given to the Muslims by Allah to be held in a sacred waqf.  Hamas believes that this land must be controlled by Muslims and used for the benefit of Muslims.  They believe that Israel is an affront to Islam and they do not have the right to give up an inch of land to the Jews EVEN IF THEY WANTED TO.   Hamas believes that if they recognized Israel, they would piss off Allah, and the last thing they want to do is piss off Allah.

How can peace in the Middle East ever be achieved when dealing with an enemy who follows such an inflexible doctrine?  Hamas's charter doesn't leave ANY wiggle room to finesse a peaceful settlement with Israel. They will follow no other path than the path towards Israel's destruction, and Israel must either find a way to kill off Hamas or forever live in a tense standoff  that is periodically interrupted by attacks and counterattacks.  There is no way out of this. . . unless... unless Hamas can be convinced that their ideology is wrong.

Examining Hamas's Concept Of A Waqf

Is Hamas's understanding of the land of Palestine as a holy, inalienable waqf correct?  Yitzhak Reiter is a senior researcher at both the Jerusalem Institute for Israel Studies and at the Hebrew University of Jerusalem.  The rest of this post is based almost exclusively on his paper, "All of Palestine Is Holy Muslim Waqf Land".  It was originally published in Law, Custom, and Statute In the Muslim World, but you can find it online here.  This is a scholarly paper, and parts of it are a little hard to follow, especially for a non-Arabic speaker such as myself.   Parts of Reiter's arguments are complex and it does involve some legalistic hair-splitting.  I will have to simplify a little, but I'll do my best to hit some of the highlights. I encourage you to read the paper if you want to understand Reiter's arguments with all its subtle nuances.

Reiter contends that

1. contrary to Hamas' claims, lands conquered by Islam, including Palestine, were categorized as fay' lands rather than as waqf  lands . . .
2. fay' . . . lands. . . in the Ottoman period, were not considered holy and were transacted freely, including with non-Muslims. . . .
3. even if we accept Hamas' erroneous contention that all of Palestine is holy inalienable waqf  land, both Islamic jurisprudence on the waqf institution and historical practice show that waqf assets were, in fact, alienable. Palestinian Muslims, including religious authorities during the British mandate period, took part in transactions that altered the original purposes of the waqf, changed its charitable character, and even transmitted waqf assets to non-Muslim hands.

Before arguing these points Reiter notes that the view of Palestine as a holy Muslim waqf is believed by more than just Hamas and its followers.  This view was also embraced by Yasser Arafat and the Palestinian Authority. Shaykh Ikrima Sabri, the Chief Mufti of Jerusalem and the Palestinian Territories issued a fatwa on July 22, 2000 declaring that all of Palestine was a waqf and that it was forbidden to accept any compensation for land.  In his fatwa, Sabri alluded to the fatwa of the 1930s, issued by Haj Amin al-Husayni, the Grand Mufti and President of the Supreme Muslim Council in British Mandate Palestine.

Al-Husayni wanted to stop the sale of land to immigrating Jews in the 1920s and 1930s.  In his speeches he repeatedly said that selling land to the Jews was a sin and high treason.  He said that the land belonged to God and could not be sold to man.  In his written fatwa, Al-Husayni stressed the holy nature of the land.  He noted that amongst other things, Jerusalem contained Islam's third holiest Mosque (al-Aqsa), that it was the destination for Muhammad's nocturnal ride and his ascent into heaven, and the grounds were consecrated with the blood of Muslim warriors, prophets and saints.    He calls the land of Palestine a trusteeship of Allah, of his Messenger, and of the Muslims and that selling the land to the Zionists was a betrayal of God and his Messenger.

But despite all this, al-Husayni never called the land a "waqf" in his written fatwa.   Most tellingly, Rieter writes that:

in the mid-1930s, al-Husayni himself appealed to the local Palestinian Arabs to endow their private lands as waqf in order to prevent their sale to the Jews.   . . . Since the SMC [Supreme Muslim Council] controlled the sharia courts, which were entitled by law to approve every transqaction of waqf properties, the Grand Mufti hoped that granting the lands waqf status would give his SMC the legal power to control land sales.  This very fact proves that in his mind Palestine was not waqf territory, as Islamist today claim; rather, he recognized private ownership of lands but he wished to change its legal status to waqf.  However, Palestinian Arabs did not respond to his appeal.

Waqf vs Fay'

Fay', the custom of taking land as booty, traces its origins to the pre-Islamic custom of ghanima.  Fay' "is the name given to land which was conquered by the Muslims but remained in the hands of the original owners to benefit from, provided that they pay a special tax signifying that the abstract ownership belongs to the State Treasury for the benefit of the Muslim community." Muhammad followed the custom of ghanima when he ruled that four fifths of the land conquered in battle the battle of Badr was to be divided amongst the conquering soldiers and one fifth of the land was to go to the Prophet who could use it to benefit the Muslim community.  He established the precedent of fay'  after the surrenders of the Banu al-Nadir and the Jews of Khaybar.  If land was conquered through siege without a battle, under this new precedent, then the entire land was to be used for the benefit of the Muslim community.  Those who had been conquered could continue to live on the land and farm it, but they had to pay a tax to the treasury for the privilege of doing so.

A waqf, on the other hand is " a privately-initiated endowment of completely privately-owned property, based on the Islamic pious concept of charity.  The endower is an individual who wishes to turn a property he owns into an endowment for charitable purposes."

• The waqf's founder may stipulate the charitable purposes of the waqf, the beneficiaries, and the administrator of the waqf
• Once endowed,  "donated property loses its  abstract ownership . . . which, according to the Hanafi school of law (official school of the Ottoman state), goes to  Allah as a metaphor of its eternal status."
• "the beneficiaries are entitled usufruct. . . only; that is, no one has ownership rights of the endowed property."

The concept of waqf as it is understood today, evolved after Muhammad.  Reiter details how the concepts of fay' and waqf were joined in the land reform enacted by Caliph Umar al-Khattab.  Those who want to know more of  the messy and confusing details of how these two concepts got mixed up should read Reiter's article.  Reiter sums up the confusing history:

The inter-relationship between Fay' and waqf can be explained thus: in the formative period of Islamic statehood, before the jurists attached specific meanings and rules to the various terms, denoting different institutions, the Muslims made use of different terms to express a particular practice or, alternatively, the same term was used for different practices.  The main reason for this complexity was that since the institutions followed earlier systems, they varied from one region to another and were controversial before Islam.

The following table outlines the key differences between fay' and waqf.

The distinction between fay' and waqf land is important.  Reiter points out that during the Medieval period, fay' landholders had to pay an extra tax (the kharaj tax) which would be used for the benefit of Islamic society, but they could freely sell their land to others.  Reiter writes:

...state control of these lands was limited to one major public interest: safeguarding the state's income from the kharaj taxes.  The Muslim state of medieval times did not interfere in matters such as who the actual owner of the land was (or its beneficiary),  or his religious denomination, as long as he paid the required taxes."

 

 "[Middle East historian] Gabriel Baer states that privately-owned land ... not only existed during the successive Muslim periods in Palestine and other Muslim-controlled territories, but that the lands were liable to change owners and non-Muslims were also able to purchase them. . . Ottoman non-Muslim subjects (dhimmis) could legally purchase lands, and Palestine or Greater Syria, was not an exception.  Indeed, the Ottoman Sharia Court records of Jerusalem from the sixteenth century testify that Jews purchased lands and houses from Muslim buyers. . . Foreign non-Muslims who resided in the Ottoman territory. . . could only purchase land following the reforms of 1856. . . "

The very fact that thousands of private Muslims--and non-Muslims--endowed their real estate in Palestine as waqf for the benefit of the public as well as their family members is further proof that the ownership of lands in Palestine during centuries of Islamic rule was also private.  The practice of waqf endowment in Palestine (and elsewhere in the Ottoman state) followed the legal theory according to which the land or urban property could be donated as waqf by individuals only, not by an organization or by state apparatus as such. . .

Thus, the actual situation regarding land tenure in Palestine during the Ottoman period refutes the Hamas claim that the land of Palestine was all state-owned or that its sale to non-Muslims was forbidden.  The Hamas contention disregards the Islamic medieval and Ottoman practices according to which fay' lands could change hands and non-Muslims were not excluded from buying such lands.

Land In A Waqf Is Neither Holy Nor Inalienable

As I mentioned earlier, Reiter's discussion of the differences between waqf and fay' is at times a bit difficult for the average layman to follow and seems to involve some legalistic hair splitting.  However, Reiter's most important argument is  more straightforward and likely to be more persuasive.  Reiter argues that EVEN IF he is wrong about Palestine being fay' land... EVEN IF Hamas is correct in its assertion that all of Palestine is part of an Islamic waqf... that in itself is not enough to make all the land holy, nor should it prevent Palestinians from giving or bargaining away some of their land for peace.

Waqfs are considered holy because they are usually associated with religious institutions and because they fulfill the fundamental Islamic tenet of charity.   However, in his essay's most important passage Reiter notes that though

 waqf as an act of charity is a desired deed in Islam . . . the endowed properties per se hove no holy nature. . . what was of a pious ('holy' in the eyes of many Palestinians and Islamists) nature and should be eternal is the charitable purpose of the waqf and not the endowed lands or other properties.

In other words, though the waqf and the purpose for which it was established is holy, THE SPECIFIC PROPERTIES WITHIN THE WAQF ARE NOT NECESSARILY HOLY, AND THEY MAY INDEED BE SOLD OR BARGAINED AWAY IF DOING SO BETTER ENABLES THE WAQF TO CARRY OUT ITS PURPOSE.      

Reiter provides several examples where Islamic jurists (qadis) have ruled that waqf land could be sold or leased for long periods of time especially  "if the property in question becomes valueless and unproductive."   Waqf property transactions were legitimize by qadis if they benefited the endowment or if the properties were under physical or economic distress.  He notes that between 1917 and 1948, "thirty-two out of fifty-six real-estate transactions in Jerusalem involved waqf properties that changed hands."

Hamas officials would undoubtedly argue that these transactions  were not legitimate because they were carried out under British Mandate rule.  But Reiter cites the sale of one family waqf of twenty dunams (about 5 acres) to the English Sports Association for use as an athletic field.  This sale was particularly noteworthy because

The qadi who permitted the transaction was employed by the SMC [Supreme Muslim Council headed by Hajj Amin al-Husayni] which also approved the sale.  Given the political sensitivity of selling such a large waqf plot in Jerusalem, it is implausible that the qadi who was subordinate to Hajj Amin al-Husayni did not receive the latter's consent prior to giving his approval.  Hence, al-Husayni, who ruled that lands in Palestine are a holy asset that should not be transferred to non-Muslims, did not prevent the sale of a twenty-dunam plot of waqf  land in Jerusalem to a British foundation.

After reviewing several other instances where waqf land was sold, some of it to non-Muslims, Reiter concludes:

In sum, the debate regarding the eternal nature of waqf, that is, whether the charitable purpose of the waqf or the original endowed properties should be preserved, was determined by medieval Islamic jurists in favor of the former one.  The legal devices which authorized transactions of waqf estates were adapted by the qadis in a flexible manner.  Istibdal, the exchange of waqf properties, was used in the last century by Muslim official authorities to legalize state expropriation of waqf land, as well as in exceptional cases to sell waqf estates even to non-Muslims.  Even Hajj Amin al-Husayni, who attempted to use the waqf system in order to prevent Palestinian Muslims from selling lands to Jews, approved both the sale and long-term lease of wqaf lands.  Perhaps the present-day Islamists and Arab nationalists who proudly base their opinion on his fatwas are unaware of his contribution to the loss of the status of waqf of large plots of land in Palestine during the Mandatory period.

Of coruse, Hamas will find this analysis unconvincing.  Hamas leaders would probably dismiss Reiter as an Israeli Jew who can't be trusted.  They would not even consider reading his analysis because of this.  But even if they did read his analysis, they would note that it relies at least in part on Ottoman interpretation of Islamic law.  Arabs have long resented living under the Ottoman yolk and Hamas leaders would likely argue that the Ottomans were corrupt and their interpretation of Islam was warped.  The bottom line is Hamas does not want to compromise with Israel and it will take more than this analysis to challenge their belief system.  In future posts I will suggest an alternative way of viewing God that might convince Hamas to change their uncompromising position.