This is a guest post by Gsirrah
The claim made by Hamas is that the whole of Palestine is a “waqf” – a religious endowment. This is a specific legal claim. It is also an incorrect one and one which first came about with Hamas in 1988. It is incorrect because:
(a) Palestine was not and never has been a waqf, it was “fay’” – land which has been conquered rather than a privately initiated endowment of a completely privately owned property for charitable purposes. Whilst there are rules which govern how fay’ land should be for public good, it is a very different status which does not prevent trading it with anybody or passing ownership to anybody else in the way the status as waqf would.
For Hamas’s claim to be true there would have to have been no private property in Palestine whilst it was under Islamic rule. This is rubbish, and can be shown as such because there are legal records of private individuals endowing waqfs within Palestine at a time when Hamas claimed that all of it was a waqf. Clearly none of the scholars and jurists involved in those transactions believed that all of Palestine was a waqf otherwise they would not have bothered endowing small parts of it as waqf. There are also plenty of examples of other private transactions concerning title of land in Palestine – this would have been impossible if all of Palestine was a waqf.
(b) Nobody, before Hamas, had claimed Palestine to be a waqf (although other groups have now adopted that terminology.) It draws on a tradition going back to the Caliph Umar but ignores centuries of legal evidence which contradicts Hamas’s interpretation of Umar’s tradition. Whilst you can find earlier examples of people saying Palestinian-Muslim land shouldn’t become Israeli-Jewish land this was as a more purely moral, rather than strictly legal, motivation.
(c) Even if it were a waqf, which it isn’t, there are many examples of waqfs being sold and traded with non-Muslims (normally in exchange for provision of other land in replacement for the waqf or some kind of other benefit for the community).
It is only in the benefit of extremists to accept this faulty legal reasoning that there is an intractable legal issue in Palestine-Israel, that Muslims legally cannot accept Israel because Palestine is a waqf. Moderates should not reinforce these narratives by parroting such ideologically motivated claims as if they were true.