Applying the Absentee Property Law on Land in East Jerusalem

 Adalah : The Legal Centre for Arab Minority Rights in Israel

P.O Box 510 Shafa'amr 20200 Israel  tel: 00972 4 950 1610

 Email:adalah@adalah.org           http://wwwadalah.org

 January 10, 2008

Mr. Menachem Mazuz

Attorney General                                                                     via mail

29 Saladin Street                                                                     and via fax: 02-6274481

Jerusalem

Re: Applying the Absentee Property Law on Land in East Jerusalem

Following the publication in the Haaretz newspaper on January 6, 2008 regarding construction slated to be conducted on properties in East Jerusalem that are defined as "absentee properties," we approach you on this matter as follows:  

1. According to the aforementioned article, the Housing and Construction Ministry issued a tender for building 300 housing units on land owned by residents of Beit Sahour, who have been declared as absentees. Attached is a copy of the Haaretz article: http://www.haaretz.com/hasen/spages/941798.html
2. This initiative, which entails application of the Absentee Property Law – 1950 in East Jerusalem, is being conducted in violation of the law and in contravention of the international law that applies to occupied territories. We will argue that according to international law, which is binding upon the state, East Jerusalem is occupied territory and the occupying power cannot take over properties belonging to the population there, especially when this population is present in the same occupied territories that are under the control of Israel.
3. As you know, the Attorney General issued a directive on this matter in January 2005, prohibiting the application of the Absentee Property Law on land in East Jerusalem. The Attorney General, inter alia, made it clear in his opinion that:

"The absenteeism of properties in East Jerusalem belonging to residents of Judea and Samaria is technical in nature because they have become absentees due to a unilateral action taken by the State of Israel for a different purpose, when both the properties and their owners were under the control of the State of Israel, and while the purposes of the law, prima facie, do not exist here. In effect, it is a case of 'present absentees,' whose rights to their property were denied due to the broad, technical wording of the law.

Moreover, in regard to residents of Judea and Samaria whose properties within the domain of East Jerusalem have become absentee, the outcome is particularly severe because the application of the law means denying them of their property without any compensation, because the Absentee Property Law (Compensation) – 1973 awarded compensation only to absentees who were residents of the State of Israel at the time of its enactment."

4 . Finally, the Attorney General issued a directive "to order an immediate halt to applying the Absentee Property Law on properties in East Jerusalem belonging to residents of the West Bank."

5. Residents of the West Bank who own property in East Jerusalem cannot be considered absentees according to the definition of this term in the Absentee Property Law. Any other interpretation of the term "absentee" that appears in this law would necessarily contradict the general purposes of the system of law, and particularly the meaning of the right to dignity and property as stipulated in the Basic Law: Human Dignity and Liberty. The court has determined more than once that the Absentee Property Law does not apply to the areas of East Jerusalem in light of the reality on the ground and in light of the fact that this entails lands and their owners who have been present under Israeli control following the occupation in 1967. Thus, for example, it was determined in the Daqaq case:

"The [Absentee Property] Law was enacted in a specific reality, different from the one that occurred in this case. Following the Six Day War, all of the residents of the Judea and Samaria region effectively came under Israeli control and in effect were subject to the authority of this law. Certain areas, including the lands on which the parties are disputing here, were annexed to Israel, and Israeli law applies directly to them. Most of the territories remained under control of the military governor, who became the 'sovereign' under international law. This sovereign is also subject to Israeli law (HCJ 302/72, Abu Hilu v. the Government of Israel, PD 27(2) 169). The residents themselves lost control of their ability to influence the legal situation. They were under Israeli military control and they had no way to influence the definition of their identity or the rules of law that were to be applied to them. In this situation, Israeli law is also imposed on them, since it dictates the rules for recognizing the sovereign and the consequences that would apply to anyone attempting to challenge this sovereign. Moreover, Israel has even built additional communities in these territories in which Israeli citizens have settled and on whom Israeli law directly applies. In this situation, it is hard to imagine that the law would be applied to residents who are situated 'in any part of the Land of Israel that is outside of Israeli territory,' even if these residents were effectively under Israeli control and not under hostile rule.”

"Indeed, the territory of the Judea and Samaria area was not annexed. Yet Israel did not recognize another authority in this territory and even refrained from defining it as occupied territory. Applying the [Absentee] Property Law in this situation is liable to create a nebulous situation in which the territory is located outside of Israel for the purpose of 'obtaining rights ' by Israel, without defining the residents who live outside of Israel  as residents of another, hostile political entity. This is a type of legal maneuver that is not based on any reality other than the orders to annex certain areas. This is a type of jurisprudence without law. From the residents' perspective, nothing has changed in reality. The residents of these territories were effectively under the same rule and were subject to the authority of the same law or to a government acting under the same law. From the perspective of the residents who remained in the areas of the region, this is a situation of 'existing' and 'not existing.'

Motion (Jerusalem District Court) 3080/04, Daqaq Noha v. Heirs of the late Naama Atiya Adawi Najar et. al.

6.   A similar ruling was recently handed down in another case, which also addressed the question of applying the Absentee Property Law to areas in East Jerusalem, and it stipulated as follows:

"[When] interpreting a piece of legislation, it should be interpreted in the context of the international reality that existed when it was legislated. It is not appropriate for a law that was designed in fact to expropriate an asset from its owner because he lives in an enemy state across the border, to be applied in the same way vis-à-vis someone who is present within the juridical boundaries of the State of Israel or within the areas of effective control of the State of Israel for many years. This was not the intention of the legislature in 1950. This legislation, the directives of which violate the rights of property, should be interpreted narrowly and literally. Moreover, the interpretation of law pertaining to the rights of property must take into account that today these rights have received constitutional status, so that any violation of them will occur only where purposeful interpretation of the law allows this, for a worthy objective and proportionate. Even if from a technical perspective the widow and her daughter are perceived in the framework of the law's definition of 'absentee,' at most this can be seen as 'technical absenteeism' that cannot deny the rights of property. This is the essence of the words written in the directive by Attorney General Meir Shamgar, already in 1969:

'We did not see that the annexation of East Jerusalem, by itself, can justify the taking of a person's property who is not in fact absent but has been present since the time in which his property came into our hands…'"

(emphasis in the original)

Civil Case (Jerusalem District Court) 1532/99, Estate of the late Taleb Ali Abdullah Abu Zehayed et. al. v. Berta Hamdan et. al.

7. Moreover, the International Court of Justice, in an advisory opinion delivered on July 9, 2004 pertaining to the Separation Wall built by the government of Israel, addressed the status of East Jerusalem in international law, in addition to addressing the status of the West Bank and Gaza Strip. The International Court of Justice stated unequivocally that the status of East Jerusalem, like the status of the West Bank and Gaza Strip, is of occupied territory – that is, a place where the Israeli army rules in reality and in effect. The international court explicitly noted this in paragraph 78, and that the agreements of the 1990s (the Oslo Accords) do not alter the essence of the status of occupied territory:

“The territories situated between the Green Line (see paragraph 72 above) and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan.  Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power.  Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation.  All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.” 

8.  In addition, article 47 of the Fourth Geneva Convention of 1949 explicitly states that the status of a population protected by the occupying power should not be changed. Article 147 of this convention states that 'extensive appropriation' of property of the protected population constitutes a grave breach of the Fourth Geneva Convention.

9. There is no doubt that the application of the Absentee Property Law – 1950 in East Jerusalem would enable the expropriation of many properties from Palestinian residents, while the declaration of their absenteeism would be possible as a direct result of the government's policy.

10. Evidently, according to both international law and Israeli law, it is impermissible to apply the Absentee Property Law – 1950 in East Jerusalem and take over the property of the civilian population that is under occupation.  

11. Based on everything noted above, I would ask you to order the Housing and Construction Ministry to cancel the aforementioned tender and refrain from making use of any property in East Jerusalem that belongs to the Palestinian residents by power of the Absentee Property Law.

I would appreciate your response as soon as possible.

Respectfully,

Suhad Bishara, Advocate

cc:

Mr. Ehud Olmert, Prime Minister

Mr. Ze'ev Boim, Minister of Housing and Construction

The Custodian of Absentee Property