Abstract
Israel has reached historic agreements in its sought-after objective of recognition—each unique. There is a similarity between agreements between Israel and neighboring states. These agreements were with Egypt (1979) and Jordan (1994). In both these, land for peace was an element. That is a legalistic interpretation of United Nations Security Council Resolution 242 adopted on November 22, 1967, in the aftermath of the Arab–Israeli War of 1967. There are two arguments on the land for peace concept. One is that there were more historical and significant reasons for peace than land. The other is that every millimeter of land is significant and not overlooked. Looking at both, this article examines the agreement with Jordan, focusing on two small farmland areas in the border areas referred to as Baqura and Ghamr in Arabic and Naharayim and Tzofar in Hebrew. The agreement was a land lease for 25 years (1994–2019). It could have been extended after that, yet Jordan called for its return, which Israel accepted. This is examined under four headings: Where did the land come from? The Israel–Jordan peace treaty; legal viewpoint; and private ownership versus state sovereignty. The take-out from such a message of land for peace examination is to bear the findings in mind for future agreements with Israel on how much land for peace, where, how, and why. The bottom line is that strong leadership and issues other than land may be more important in achieving a peace treaty, yet land for peace is a strong message.
Introduction
Israel has reached peace agreements with two of its neighbors with whom it previously had interstate wars, Egypt (1979) and Jordan (1994). Each of these agreements included land captured during a war for peace swap. Land for peace is a legalistic interpretation of United Nations (UN) Security Council Resolution 242, adopted on November 22, 1967, in the aftermath of the Arab–Israeli War in June 1967. The concept of land and peace is derived from the wording of the resolution’s first operative paragraph, which affirms that peace should include the application of two principles: Withdrawal of Israeli forces (giving up land) and termination of all claims or states of belligerency (making peace).
There are two arguments on the land for peace concept when examining the Israel–Jordan Peace Treaty (1994), which was negotiated and signed by the Israeli government of Israeli Prime Minister Yitzhak Rabin and King Hussein of Jordan (Israeli Ministry of Foreign Affairs, 1994). One argument is that there were more historical and significant reasons for peace between the two countries than land. Jordanian researchers (Majālī, ʿAnānī, & Haddadin, 2014, pp. 23–30) summarize these as including water resources, economic relations, diplomatic, and other bilateral relations including security, refugees and displaced persons, places of historical and religious significance and interfaith relations, cultural and scientific exchanges, and normalization in such areas as tourism, energy, environment, health, and education.
The other argument is that every millimeter of land has significance and was not overlooked when negotiating the peace treaty. The emphasis of a comment attached to the treaty held in the King Hussein Library alludes to this. It states that “The treaty guaranteed Jordan the restoration of its occupied land (approximately 380 square kilometers)” (King Hussein Library, 2023). There is no specific mention of this land size or the word occupied in the text of the treaty. To be sure, the treaty has 30 articles and 5 annexes. Article 3 clearly states that the international boundary between Israel and Jordan is delimited regarding the boundary definition given to the United Kingdom under the League of Nations Mandate for Palestine (July 24, 1922).
This boundary is expanded upon in Annex 1, which has three parts—the first deals with the substantive and precise demarcation of the international boundary. The international boundary between Israel and Jordan would follow the Jordan and Yarmouk Rivers, the Dead Sea, Emek Ha’Arava/Wadi Araba, and the Gulf of Aqaba. Also defined is an administrative boundary between Jordan and the West Bank, occupied by Israel in 1967, without prejudice to the status of that territory. Jordan did not request a return to the 1967 borders.
The next two parts of the Annex deal with two areas of land specifically, those referred to in Article 3, thereby granting them significance even though they are only 0.8 and 2 square kilometers, respectively, in size. This article will concentrate its focus on these two small areas. These are the border areas of Baqura and Ghamr (Naharayim and Tzofar in Hebrew). Naharayim (Baqura) in Hebrew means two rivers and is where the Yarmouk River flows into the Jordan River, north of the Dead Sea and closer to the Sea of Galilee. The confluence of the two rivers provides ample water for cultivating the land in the area. The strong current in the river also made it a suitable place to locate the First Jordan Hydro-Electric Powerhouse, constructed between 1927 and 1933 by the pre-State of Israel Zionist movement engineer Pinchas Rutenberg. Meiton (2019, p. 62) who describes how, between 1933 and 1948, Jewish power station employees farmed the area, as did 70 families from a nearby Arab village. It was destroyed in the 1948 war. Tzofar (Ghamr) comes from the Tzofar stream, further south. Both are on the border of Israel and Jordan. The former lies about 150 km north of the latter.
Article 3 and Annex 1 respectively refer to Baqura as a special circumstance given Jordan sovereignty with Israeli private land ownership rights and property interests, and Ghamr given Jordan sovereignty with Israeli private land use rights. The Annex informs that a special regime would apply to both temporarily, namely a land lease agreement for 25 years (1994–2019). It stipulates that Israeli farmers would be allowed to cultivate land in the border areas of Baqura and Ghamr for 25 years, after which Jordan would decide whether to renew the lease. Part of the message was that the Isle of Peace for joint tourism from both Israel and Jordan would be established in the Baqura area.
Considering the two arguments of land for peace bearing UN Security Council Resolution 242 in mind, the 1979 peace treaty with Egypt offers a comparative view. A brief historical note has been provided by Steinberg and Rubinovitz (2019, pp. 12–19), who inform that UN Security Council Resolution 242 formed the starting point for the negotiation for a more comprehensive peace treaty with Egypt, with whom Israel shares a southern border. The return of land was a critical element. The Sinai Peninsula, captured by Israel in 1967, was returned to Egypt in stages from 1979 (Israeli Ministry of Foreign Affairs, 2021). In return, the peace treaty was signed, and diplomatic relations were established. A small tract of land was also in dispute, that of the coastal strip on the Red Sea, known as Taba. In this case, the solution was for Egypt and Israel to enter international arbitration. This awarded Egypt sovereignty of the coastal resort of Taba (Editorial, 1986). The Egyptian Ministry of Tourism purchased the hotel, paying its owner, Eli Papushado, an Egyptian Jew who emigrated to Israel, $37 million in cash (Editorial SunSentinel, 1989).
There were over 15 years between the treaties with Egypt and Jordan where commentators at the time took the position that the agreement with Jordan came about when it did due to the confluence of strong leaders firmly in place on both sides, the Palestinian–Israeli Oslo breakthrough immediately preceding it, and financial and diplomatic strains that drove King Hussein to reconsecrate his country’s relations with the United States with an Israel–Jordan peace treaty very much to the Americans’ liking. Prominent among those knowledgeable about Israel–Jordan relations in general and the peace treaty in particular and who wrote about this are Martin Indyk and Dennis Ross. Primary source files of the former’s involvement and views were released in 2012 as “Records on Martin Indyk’s Israeli Jordanian Peace Treaty Files, 1993 – 1994” and were consulted by the author of this article (Clinton Digital Library, 2012). Ross adds to this writing with David Makovsky, the position of Israel and Prime Minister Rabin, showing how he shaped its destiny (Ross & Makovsky, 2019, pp. 12–34). Adding to this view from insights in Jordan are the insider perspectives of Majālī, ʿAnānī, and Haddadin (2006, pp. 80–120) and that of the academic Al O’ran (2009, p. 23). They concur that the treaty came as an interplay between agency and structure on the Jordanian side concerning the Israeli–Palestinian context. These views are supported when further primary sources were released progressively by both sides and analyzed by notable researchers and commentators, such as Eisenberg and Caplan (2003).
Given the importance of all other criteria, the momentum toward peace and the experience from the arrangements with Egypt leads to the assumption that the treaty would likely have been signed regardless of whether there was a land lease or another solution for Baqura and Ghamr. That begs the question of why they are the only two areas of land specifically mentioned in the treaty, especially given their small size. Even more so since they were not conquered during the 1967 war but the 1948 war. Even more relevant, the memoirs and biographies of the two countries’ leaders do not show any special significance to these areas (Rabin, 1996; Shlaim, 2007).
This gives cause for a rationale of examining the case as an example of the complexities of the message of land for peace and documenting all that is known about these two tracts of land. This article will follow a methodology to examine the various viewpoints of the message of land for peace in the case of Baqura and Ghamr, including the historical antecedents, and to document this using primary and secondary sources, including the memoirs and biographies from all sides. These viewpoints include politics, economics, and emotions, given that the peace treaty was an agreement between two sovereign states. However, the land was owned privately and provided the sole income for its Israeli owners.
The structure of the case examination is under the four headings: Where did the land come from? The Israel–Jordan peace treaty, the Legal viewpoint, and private ownership versus state sovereignty. The take-out from such a message of land for peace examination is to bear the findings in mind for future agreements with Israel on how much land for peace, where, how, and why. The bottom line is that strong leadership and issues other than land may be more important in achieving a peace treaty, yet land for peace is a strong message.
Where Did the Land Come From?
The history of state sovereignty and governance over the same territory/land has changed. In World War I, Britain and France fought the Ottoman Empire, allied with Germany, and captured the Ottoman Province of Greater Syria in 1917. Today, that is mainly Israel, Jordan, Lebanon, Syria, and the Palestinian territories. The two countries brought the question of its governance to the League of Nations (predecessor of the UN), as it could grant a mandate. A mandate is a legal instrument containing the internationally agreed-upon terms for administering a territory on behalf of the League of Nations (Lukacs, 1997, p. 51). In effect to the provisions of Article 22 of the Covenant of the League of Nations, the administration of the territory with a view to its eventual independence, on both sides of the River Jordan, was given to the United Kingdom and called Palestine (Israeli Ministry of Foreign Affairs, 1922). Britain divided the territory using rivers and the mid-points in valleys in the desert between ridges to demarcate boundaries. It gave independence to the eastern side of the River Jordan in 1946 which was later renamed the Hashemite Kingdom of Jordan.
International historian Penny Sinanoglou (2019, pp. 17–23) examined the primary source documentation given to the UN by Britain when it asked that organization to decide what to do with the western side of the river, still referred to as Palestine, after World War II. As with the creation of India and Pakistan in the same year (1947), a partition plan was proposed based on religious settlement. On November 29, 1947, the UN General Assembly voted for this partition of Britain Mandatory Palestine through Resolution 181 (Israeli Ministry of Foreign Affairs, 1947). The proposal was accepted by the Jewish population residing there and international Zionist organizations. Maoz (2013, pp. 30–40), when looking at neighboring Arab sovereign states, notes that most were not interested in the Palestine issue. Israel declared its independence on May 14, 1948, which ensued fighting with neighboring states. After several broken ceasefires and truces, the international community reached armistice agreements in 1949; with Egypt on 24 February, Lebanon on 23 March, Jordan on 3 April, and Syria on 20 July (Editorial CIE, 2023).
The 1949 Armistice Demarcation Lines saw Israel take control of territories roughly a third larger than that allocated under the 1947 UN partition proposal. Similarly, Egypt and Jordan occupied the territory that, under UN General Assembly Resolution 181, should have been an independent Arab state currently being sought as the State of Palestine. Egypt took control of the Gaza Strip, adjacent to the Sinai Peninsula and the Mediterranean Sea. In contrast, Jordan took the West Bank of the River Jordan, also known as the biblical area of Judea and Samaria. This was the situation until the June War when Israel captured the West Bank, including East Jerusalem, the Gaza Strip, Sinai Peninsula, and the Golan Heights. The Sinai Peninsula was returned to Egypt as part of the 1979 peace agreement with that country. That then was the state of territory and land affairs when Israel and Jordan started negotiating their peace agreement.
The Israel–Jordan Peace Treaty
Sher and Ben-Kalifa (2018, p. 14) show that longstanding relations existed between Israel and the Zionist movement and Jordan and the Hashemite family when the 1994 treaty was being negotiated. There had been Jordanian–Israeli clandestine ties that go beyond the creation of the State of Israel in 1948 and date back as early as the establishment of the Emirate of Transjordan in 1921 between Hashemites and Zionists. Covert relations between the governments of Israel and Jordan have been ongoing since the 1950s. The political, military, and strategic relations between the two parties, shared resources such as water, and common interests in agriculture and economy highlighted the need for an agreement for cooperation. The agreement could not be reached because of the atmosphere in the Middle East seen in the 1967 and 1973 Arab–Israeli wars.
While Jordan’s participation in the 1973 Arab–Israel war was symbolic, Israel’s trauma and potential defeat led it to intensify efforts to engage in discussions for peace treaties on all its borders. Renewed efforts between them followed the treaty’s success with Egypt (1979). For example, in 1987, King Hussein of Jordan and Israeli Foreign Minister Shimon Peres reached an agreement in principle to establish diplomatic ties. However, both sides soon repudiated the agreement, but it was the start of a process that would see fruition in 1994. This is discussed in detail by Cobban (1990, p. 209) with specific emphasis on the land for peace message as in December 1987, King Hussein renounced Jordan’s claim to sovereignty over the Palestinian territories (the West Bank). Sharnoff (2023, p. 4) informs that King Hussein’s disengagement decision excluded Hashemite guardianship of the Islamic holy places in Jerusalem. The next stage was a joint Jordanian–Palestinian delegation participation in the 1991 Madrid Peace Conference. The signing of the Declaration of Principles by Israel and the Palestinian Liberation Organization in September 1993 highlighted that once the Palestinians broke the taboo on peace with Israel, the agreement with Jordan was signed very quickly (Israeli Ministry of Foreign Affairs, 1993). A year later, the Israel–Jordan Peace Treaty was signed at the Arava border crossing between the two states (Israeli Ministry of Foreign Affairs, 1994).
Essential issues such as Jordan’s sovereignty, the Hashemite kingdom’s status in Jerusalem, and the water supply to Jordan were resolved. The treaty’s main provisions delimited the international boundary between the two states, including territorial waters (notably in the Gulf of Aqaba and the Dead Sea) and airspace. In determining the borders, the negotiation teams on both sides consulted historical maps. These maps showed the borders prior to 1917, those between 1917 and 1947, the 1947 UN partition plan, the 1949 Armistice Line, and the borders between and after the two wars of 1948 and 1967. The outcome was to initially rely on the League of Nations Mandate 1922 boundary map. A renowned diplomatic historian, Yehuda Lukacs (1997, p. 47), details how that map confirms the borders agreed upon by Britain and France under the auspices of the Supreme Court of the League of Nations at its San Remo meeting in April 1920.
Sharvit (2019) explains that the copy of the League of Nations Mandate (1922) map available for the 1994 negotiations needed to be clarified on exactly where the border was at all specific points. That led to a series of discussions where at the fore was privately owned cultivable land in the Israeli–Jordanian border areas of Baqura and Ghamr. It was also found that the 1949 Israel–Jordan armistice negotiations similarly discussed these territories.
Details provided by international historian Fischbach (1997, pp. 38–50) state that in those two territories in 1949, 820 dunams of land was farmed by private farmers of several families and by two Israeli collective farms (Kibbutzim), Ashdot Ya’akov Meuhad and Ashdot Ya’akov Ihud (a dunam is a measure of land area used in parts of the former Ottoman Turkish Empire, including Israel, where eight dunam would be less than one square kilometer). The Israeli government administered this land following the 1949 armistice agreement with Jordan until UN Security Council Resolution 89 (1950) concerning the implementation of the armistice agreements (United Nations, 1950). That case has been examined by historian Princeton N. Lyman (2004, p. 162), who explains that following an appeal by both Israel and Jordan in 1950, the UN Security Council turned to Ralph Bunche, the UN mediator at the armistice negotiations. Lyman quotes Bunche, who replied that Israel and Jordan had brought map overlays to him from earlier informal negotiations. Lyman states that Bunche could not explain why the League of Nations had not resolved this in 1922 (United Nations, 1950).
After that, the bulk of the land in the area, as well as the destroyed power plant, was administered by Jordan. Any privately owned land was placed under the Jordanian Custodian of Enemy Property, established to handle property taken from Jews in the West Bank in the 1948 War. In the 1967 War, all the area fell under Israeli control. It was cultivated by Israeli farmers, individually and by Israeli collective farms, the same who had done so between 1917 and 1950. Then, most of the produce cultivated/harvested was originally for subsistence by the farmers, but by the 1990s, the produce was for distribution (sale) to commercial outlets, mainly supermarkets (Fischbach, 1997, pp. 48–50).
The Legal Viewpoint
Examining the elements of this case in more detail and their linkages within the context of private ownership and international law of treaties presents some difficult questions. For example, where is the line drawn in rights and on the land boundary map in private ownership and land use cases versus state sovereignty? What happens when private land ownership conflicts with state boundaries, particularly in an international peace treaty context, and is land lease a potential solution to such conflicts?
When examining these questions, on the one hand, territorial rights may be established formally in international treaties. These rights may also be referred to in a normative rather than specifically legal sense. However, the extent of a state’s territorial rights may become complex when the rights of private ownership of land and agricultural cultivation thereof come head-to-head with international peace. The solution found in this case, as the best option to promote peace in the demarcation of the international border, was for private owners to become foreign investors and a land lease of limited duration for farming the land. This practice of land lease arrangement is frequent in domestic law. There are numerous examples, especially in forestry, where a local, state, or federal government requires grazing land, yet it is private. Legal experts on the topic (Bartlett, McKean, & Wendell, 1983, pp. 23–29) have noted that each case is unique and handled under domestic contract and property law. However, in international relations, land lease arrangements are the exception.
A local historian of the two land areas, Fredrik Meiton (2019, pp. 45–47), informs that the land lease arrangement concerning the Baqura and Ghamr areas was unique under international treaty law. Perhaps the most unusual feature of the 1994 Israel–Jordan treaty is the provision for the two areas of Baqura and Ghamr. The areas were not large (0.8 and 2 square kilometers, respectively) and had no strategic significance. However, the soil was rich and arable, with a nearby fresh water supply, providing sufficient agriculture opportunities to support many families. The two countries settled for a unique land lease agreement noted in the Peace Treaty, in Annex 1 (B) and Annex 1 (C). A special regime with Jordanian sovereignty would govern the areas, with Israeli private ownership of their land and/or agricultural cultivation of the region by Israeli farmers (Sher & Ben-Kalifa, 2018, p. 4). Also agreed was that “[w]ithout prejudice to private rights of ownership of land within the area, this Annex will remain in force for 25 years, and shall be renewed automatically for the same periods, unless either Party gives one-year prior notice of termination” (Israeli Ministry of Foreign Affairs, 1994). Also, Jordanian sovereignty was confirmed (Fischbach, 1997, p. 43).
In addition, Annex V Agreed Minutes (3) created a joint venture recreation project in the Baqura area (Editorial JV, 1994). The picnic spots and walking trails were originally popular among tourists. However, in March 1997, the Isle of Peace, as it was known, became the site of a deadly attack by a Jordanian soldier who shot and killed seven Israeli schoolgirls on an outing with their teacher to the area (Kershner & Sweis, 2017).
On October 22, 2018, one year before the automatic renewal of the 25-year land lease agreement, the Jordanian state-run English news agency Petra reported that King Abdullah had announced that Jordan was given the one-year prior notice of termination of the agreement. The farmers had no recourse to private legal action in any court, as the land lease was an internationally binding agreement between the two countries (Younes, 2018). This was amid friction between the two countries, which started when Israeli authorities detained two Jordanian citizens for suspicion of security violations that led to Jordan recalling its ambassador. Relations deteriorated between the two countries (Editorial TRT, 2019).
On November 10, 2019, the land lease agreement expired, and gates on the border were closed, some 25 years after the agreement had been reached. The website of Naharayim Park (Isle of Peace) states that following the closure of the border gates in 2019, it was still visited, but in buses with guides and not as a picnic or hiking venue (Naharayim, 2023). Although the gates closed on November 10, 2019, an exception was made for 31 Israeli farmers, who were permitted to continue farming in the northern Ghamr section that was defined temporarily as a closed military zone until May 31, 2020. This resulted from the tacit recognition that the farmers were growing crops as their main source of income on some 370 acres in the enclave, some 2.5 miles inside Jordan. The Jordanian embassy in Tel Aviv granted the farmers entry visas until they finished harvesting those crops (Editorial TOI, 2019).
Under Annex V and in pursuance of Article 28 of the Israel–Jordan Peace Treaty, the owners of the land in both the Baqura and Ghamr areas could travel to the land they owned via other border crossings but could not cultivate crops (Editorial MEM, 2019). There are three land border crossings, none close to the Baqura and Ghamr enclaves. Thus, the farmers would have to travel at least two hours in Israel to reach their nearest border crossing, then two hours in Jordan to reach the land, and repeat that four-hour journey on their return (Tourist Israel, 2023).
Private Ownership Versus State Sovereignty
There have only been two instances where international public law covering peace treaties between Israel and its neighbors has considered the relationship between territorial sovereignty and private ownership. The first was Taba, and the second was Baqura and Ghamr. The historian Michael Fischbach (2006, pp. 23–29) uncovered that in the 1994 negotiations, Jordan insisted on receiving governance and sovereignty over the Baqura and Ghamr areas rather than trading other land for them that had also been offered as a solution by Israel. Jordan rejected a land swap. To resolve the issue, the two countries devised a solution whereby the two areas would have a special regime in a land lease arrangement. For all of the 25 years of the land lease, Israeli farmers crossed into Jordan daily—without needing passport control—and cultivated their land.
Journalist Adam Rasgon (2019a) details how King Hussein had said at the time of the signing of the 1994 Treaty that he intended to recognize—in the area that would be under Jordan’s governance and sovereignty—Israeli private land ownership rights and property interests and to allow the landowners to dispose of their land per applicable Jordanian law freely. King Hussein’s son, King Abdullah II, has not changed this view. Rasgon also reported that the government of the Kingdom of Jordan has always stated that it would respect the private property rights of Israelis as per the Hashemite Kingdom’s laws. In 2019, after the 25-year land lease agreement ended, it did not nationalize the land.
Subsequently, Jordan offered to purchase the lands privately owned by Israelis as a gesture of goodwill to assist them in their lost income, but it was turned down (Rasgon, 2019b). News outlets reported that the State of Israel also offered alternate land to compensate citizens whose livelihoods had been lost. According to media reports, some farmers alleged that the alternative lands offered were less fertile than those in the Baqura and Ghamr enclave and that there would be high additional expenditures. They claimed they would be farming at a loss. A cash compensation to assist the Israeli farmers was also paid to them by the Israeli government, now under the premiership of Benjamin Netanyahu. The bottom line was that the Israeli farmers retained ownership of their land as foreign investors in Jordan without the right to cultivate it (Editorial TOI, 2020).
Conclusion
The message of land for peace must be addressed, especially as it may be the opening point of any negotiation process, even if it is not the determining element or the stumbling block. It is fair to say then that, in general, the message of land for peace has passed a vital test in the Israel–Egypt (1979) and Israel–Jordan (1994) peace treaties. There have been no wars between the signatories since the treaties entered into force. The overall message is that borders have been and are sources of peace, not merely obstacles and causes of wars.
The Israel–Jordan Peace Treaty remained in force after the end of the 25 years of land lease of Baqura and Ghamr. Any Israeli citizen could still receive an entry visa from the Jordanian embassy in Tel Aviv to enter the Kingdom through its official border crossings; similarly, Jordanian citizens could apply for visas to enter Israel. The case has also shown that where there is a will, there is a way to overcome any obstacle to peace. In this case, the land lease was a solution. The land ownership rights by Israeli farmers of their land in the Baqura and Ghamr regions also remained in force, and they can visit it. The change for them is that it is on the other side of an international border, and they cannot cultivate it or earn an income from it.
However, the devil could be in detail as the case of Baqura and Ghamr examined in this article has shown on the questions of how much land is for peace, where, how, and why once land is on the table for negotiating, as in this case, politics, economics, and emotions are relevant factors to consider as motivators and inhibitors. Although the land in this case was geographically small and had no strategic value, it had an economic and emotional attachment to its private Israeli owners, and it had historical sovereignty significance for Jordan dating back to the League of Nations mandate. Regardless of the size, finding solutions is significant when land for peace is a message sent and received toward resolving disputes. In this case, it was a land lease, and in the case of Taba with Egypt, it was arbitration. In both cases, every millimeter of land was discussed, and solutions were found. That, in its own right, is a strong message where these two methods are examples that others engaged in conflict resolution should learn and consider.
In the case of Israel and Jordan, the respective leaders strove to reach an agreement and did so on the most significant and least significant of issues. The take-out from such a message of land for peace examination is to bear the findings in mind for future agreements with Israel on how much land for peace, where, how, and why. The bottom line is the understanding that strong leadership is the most important factor in achieving a peace treaty.
