By Nir Hasson | Apr. 16, 2015 | 10:22 PM | 20
The justices said the controversial Absentee Property Law is applicable in East Jerusalem but warned it should only be used rarely, and with explicit approval of the attorney general.
Only a day after the High Court of Justice upheld most of the sections of the “Anti-Boycott Law,” the justices of the Supreme Court approved the use of another controversial law: The application of the Absentee Property Law to assets in East Jerusalem. The practical effect of the ruling is that it allows the state to take control of property in East Jerusalem whose owners live in the West Bank or Gaza.
However, the expanded seven-justice panel, headed by former Supreme Court president Asher Grunis and present President Miriam Naor, did warn that the application of the law to East Jerusalem presents many problems and it must be used in only the “rarest of rare cases.” Grunis even went as far as to say that the “literal” use of the law for Palestinians who reside in the West Bank could bring about its application to Jewish settlers who own property within Israel proper, enabling the state to take over their property as well.
“For example, that is how, according to this interpretation, a property located in Tel Aviv whose owner is a resident of Ariel or Beit El could be awarded to the Custodian,” wrote Grunis in the court’s decision. In an even more extreme example, Grunis noted the absurdity of the wording of the law and said that it could be read in such a way that even a soldier sent by the government to serve in the territories or into an enemy country could have his property declared as “absentee property.”
Under the law enacted in 1950, any person who lived in a hostile country, or in the area of “the Land of Israel” that was not under the State of Israel’s control, and owned property within the state, is considered an absentee owner and his property may be transferred to the state’s Custodian of Absentee Property. The primary purpose of this law was to enable use of lands belonging to Arabs who left Israel during the War of Independence.
In 1967, after the Six-Day War, which saw the extension of Jerusalem’s municipal boundaries, Palestinians with assets in Jerusalem suddenly found themselves considered “absentee” owners, even though they hadn’t gone anywhere. Sometimes they were living only a few hundred meters away, but outside the new Jerusalem city limits and officially in the West Bank, and found their property confiscated only because Israel drew the new municipal border between them and their property, making them no longer residents of Jerusalem - though they never left their homes.
The law is worded in very broad terms, and states that any person who owns property in Israel and lives, or is present, in an enemy country can be declared an absentee and the property will be transferred to the control of the Custodian — and used for the “development of the country.”
The West Bank, even though it is under Israeli military control, is by law still territory of an “enemy nation.”
The present Supreme Court ruling came in response to a number of cases appealed to the highest court over the past few years filed by Palestinians who had their property taken under the law.
The decision concerning the application of the law in East Jerusalem has significant implications for Jewish settlement in the city’s predominantly Palestinian neighborhoods. Over the years, the Absentee Property Law has become a tool for right-wing groups seeking to increase the Jewish presence in East Jerusalem. These groups ask the custodian to expropriate houses whose residents are in the West Bank and then rent the premises from the custodian, usually for a nominal fee.
Grunis, with the rest of the justices concurring, ruled that the law does apply in East Jerusalem — and rejected the appeals of the Palestinian property owners.
Naor, while agreeing that the application of the law is legal, said she doubts a case can be found in which the law could be applied in practice, and in her opinion, in light of the ruling the state should consider returning some properties that were confiscated.
In the end the justices decided against overturning the law, but said any such future use would require the explicit approval of the attorney general. Grunis also said the law was problematic from the point of view of both international and administrative law, since the absentees in these cases are no refugees and they live in areas under Israeli control. They have become absentees, writes Grunis: “Not because of any act taken on their part, but because of the transfer of control in Jerusalem to Israeli hands and the application of Israeli law there. These are not [people] under the control of other countries, but [people] who are in territories in which Israel has control — to some extent — over.”
Avigdor Feldman, the lawyer representing one of the appelants in the case, said: “The justices demonstrated a very formalistic approach. They determined that it is not proper, but have passed the buck to the courts, attorney general and the Custodian. They have asked to trust the generosity of the state not to make use of [the law]. That is running away from responsibility. It is clear that the law was created during a different situation and for other purposes, and is not appropriate for the present circumstances.”
Adalah, the Legal Center for Arab Minority Rights in Israel, which joined the case as a “friend of the court,” said after the ruling: “Even though the court noted in its ruling that the law is arbitrary, and the ruling brings examples of that, it allows the continued application of one of the most racist and arbitrary laws in Israel, which was enacted in 1950 with the goal of confiscating the property of Palestinian refugees who were expelled from their homes."
Although in 1968, Meir Shamgar, then the attorney general and later a Supreme Court justice, ordered that the law not be applied to East Jerusalem, with the establishment of the Likud government in 1977, the law came back into force. The pendulum swung back again in 1992, under then-Prime Minister Yitzhak Rabin, but in 1997, restrictions on the law’s application were once again loosened, and in 2004, under then-Prime Minister Ariel Sharon, the cabinet decided, against the position advocated by the Justice Ministry, to restore all the custodian’s powers with regard to property in Jerusalem.
In 2005, then-Attorney General and now Supreme Court Justice Menachem Mazuz wrote a sharply worded letter as attorney general ordering that the law not be applied in Jerusalem. “The application of the powers of the Custodian of Absentee Property to properties in East Jerusalem raises many serious legal difficulties regarding the application of the law and the reasonableness of its decision, and … the obligations of the State of Israel toward the traditional principles of international law,” he said.
In 2006, then-District Court Judge Boaz Okun also ordered the law not be applied in Jerusalem, but at the end of that year, the state appealed Okun’s ruling to the Supreme Court.
In 2013, Attorney General Yehuda Weinstein wrote in a legal opinion that the law could continue to be applied to Palestinian homes in East Jerusalem.
Israel's Absentee Property Law exposes an absence of morality in Jerusalem
By Ilene Prusher | Jun. 7, 2013 | 12:40 PM | 23
Upholding a 63 year old law allowing Israel to confiscate "absentee" properties of Palestinian-owned homes in Jerusalem sends a dangerous message and puts up a road block to peace.
Anyone who works in real estate in Jerusalem will tell you what constitutes one of the most desirable properties in town: an old Arab house. Not in East Jerusalem, but in the West Jerusalem neighborhood where I live. In fact, the pre-1948 Arab houses of Baka are unabashedly listed this way: Buy a “Beit Aravi,” like the one in this video, which comes with accompanying mood music and the broker’s boast of authenticity.
Few but the most liberal of Israelis take note of this irony – Arab house equals charm and character – and are willing to acknowledge the fuzzy moral territory of the Jerusalem we now find ourselves in today.
But 1948 is so long ago and peace so far away, and so we don’t like to think too hard about how these lovely “vintage” homes got here. Tuesday, on the other hand, that’s not so long ago at all. On Tuesday, Attorney General Yehuda Weinstein said in a legal opinion that a 63-year-old law allowing Israel to confiscate "absentee" properties may continue to be applied to Palestinian-owned homes in Jerusalem.
As Haaretz reported, this isn’t simply about leaving on the books a law that passed in 1950, when the Jewish state’ survival seemed less secure and Israelis feared droves of Palestinian refugees returning to claim the homes they left behind. Today, this is about Palestinians who live in the West Bank – and sometimes, meters from their property in Jerusalem – and had their homes confiscated because they’re now “absentees,” ie. no longer Jerusalem residents. In other words, we’re not talking about the homes of Palestinians who are already spending a second or even third generation in Jordan or Lebanon or somewhere much further afield – we’re talking about people who still live in the vicinity, under Israeli rule, but now find themselves on the wrong side of the line for maintaining their property.
Which line? Well, that depends. For years the law wasn’t applied to East Jerusalemites. More recently, it is. The addition of the separation barrier a decade ago has made it more difficult for Palestinians to get to their property inside municipal Jerusalem turning people into new “absentees.” So the wall, combined with the law, has made it easier to declare additional pieces of property as absentee – even if the owners are just down the road. The result: groups seeking to settle Jews in Arab neighborhoods of East Jerusalem are having an easier time doing it.
Ir Amim notes in its in-depth 2010 study on the issue that 20 years ago, the Klugman Committee -- headed by Haim Klugman, the director general of the Ministry of Justice at the time -- strongly criticized the "grave conflict of interests" that characterized the declaration of absentee property and its transfer to right-wing organizations in East Jerusalem. Then-Attorney General Yosef Harish ordered the use of the law to stop, the paper notes.
It’s not fully clear why Weinstein decided otherwise, ruling that “the properties located in East Jerusalem, with their owners residents of the Judea and Samaria region, were absentee properties.” The four families with the strongest cases are appealing to the Supreme Court, which is scheduled to deal with the issue at a hearing in September. Presumably then we’ll get a fuller picture of Weinstein’s thinking.
But beyond these four cases, there is a perhaps a more damaging trend at stake: The message that upholding this law sends to Palestinians at a time when there ought to be a shred of hope, however slim, of returning to peace talks. In his commentary on the issue, Palestinian journalist Daoud Kuttab writes in Al-Monitor that it puts up a major roadblock to peace.
“If the Israeli high court, which is hearing a case involving the issue, will rule in favor of recognizing the absentee law, the consequences to Palestinians and their East Jerusalem properties will be enormous. The Israeli custodian of absentee properties has routinely turned over properties under its control to settler and settler-related projects,” Kuttab writes. He also crystallizes why the law is so morally flawed. An Israeli who moves to a West Bank settlement will never be told that he has forfeited the apartment he owns in Jerusalem.
“The irony of the Israeli discussion about absentee properties in Jerusalem is [that it is] applicable only to Palestinian Arabs,” he adds. “There is no similar application of this law to Israeli settlers living in the West Bank and owning properties in Jerusalem or Israel.”
A quick peruse of the Israeli press shows that aside from Haaretz, the issue was hardly covered. Turkey and Syria? Fascinating. The fate of Nochi Dankner’s IDB? Riveting. But the upholding of a law that helps deprive Palestinians of their real estate and perpetuates the conflict? Yawn. Do we really need to know?
A few new voices say we do. A new group calling itself “All That’s Left: Anti-Occupation Collective” went out this Wednesday, June 5 – the day Israel wrested control of Jerusalem and the West Bank in 1967 – and began re-painting the Green Line across the city. Or rather, they painted a wide green line onto cardboard, so as to not deface the celebrated Jerusalem stone. The video is worth a look, if only for the odd cheeriness of it – if only for the irony.