On May 21, 2013, a panel of seven justices of the Israeli High Court of Justice held deliberations on a number of appeals concerning the applicability of the Absentee Property Law in East Jerusalem. During those deliberations, Israel’s Attorney General (by means of the State Attorney) argued that the Absentee Property law indeed applies in East Jerusalem. He noted, however, that it should be used with caution. Subsequently, on June 6, 2013, under instructions from the Court, the Attorney General filed a written summary of his position regarding the applicability of the Absentee Property Law in East Jerusalem. This position sparked widespread coverage in both the Israeli and international press. Unfortunately, media reports have failed to adequately address the complexities of the issue in terms of the position articulated by the Attorney General, its historical and political context, and its likely impacts. The following report is an effort to remedy this failure.
What is the Absentee Property Law?
The Absentee Property Law (Absentee Property Law)was enacted by the Knesset in 1950. The provisions of the Law were made effective retroactively, applying from November 30, 1947 (the day after the UN vote establishing the State of Israel) and remaining in effect until the state of emergency in Israel expires (that state of emergency remains in effect until the present day). Under the Absentee Property Law, any individual owning property in Israel who has been present in “enemy territory”, or is a citizen of an enemy state, is deemed an “absentee.” Properties whose owners are deemed “absentees” automatically become “absentee properties.” Title of those properties is granted to the Custodian of Absentee Property who, under law, has the authority to transfer said titles to these lands to Israel’s Development Authority – a body that is part of the Israel Land Authority.
The Absentee Property Law was the major vehicle through which Israel took control of property owned by Palestinians who fled or were expelled from Israel in the war in 1948. Between 1948 and 1967, the Absentee Property Law enabled the newly-born state of Israel to legally place such property at the disposal of the Israeli public and, in this manner, millions of dunams of privately-owned Palestinian lands were effectively “nationalized” and re-purposed for the construction of development towns, kibbutzim and moshavim inside the Green Line.
Under the Absentee Property Law, “enemy territory” includes not only Arab states that took part in the 1948 war against Israel, but also the West Bank. This includes East Jerusalem, which between 1949 and 1967 was an integral part of the West Bank, all of which were under the control of Jordan (an “enemy state”). When Israel annexed Jordanian East Jerusalem and 27 surrounding villages (around 6.5 sq. kms.) in July 1967, shortly after the Six-Day War, the Absentee Property Law automatically became applicable vis-à-vis Palestinian-owned properties in East Jerusalem. Virtually all of the residents of East Jerusalem at the time were Jordanian citizens. Moreover, much of the land in East Jerusalem was owned, in whole or in part, by the residents of Ramallah, Bethlehem, and other places in the West Bank. Consequently, rigorous application of the Absentee Property Law would have undermined the validity of much of the property rights in the Palestinian sector of East Jerusalem.
In 1968, Israel began an effort to enforce the Absentee Property Law in East Jerusalem. At that time, a major international controversy ensued. As a result, then-Attorney General Meir Shamgar (later the Chief Justice of the Israeli High Court of Justice), issued a binding legal opinion whereby properties in East Jerusalem belonging West Bank residents would not be declared an absentee property, provided he or she had an agent or relation within the city who managed the property on his or her behalf. In effect Shamgar ruled that the Absentee Property Law would not be applied systematically to properties in East Jerusalem that were owned by residents of the West Bank. Shamgar’s guidelines remained secret, becoming public knowledge only decades later, when they were no longer in effect.
In 1977, Menachem Begin was elected Prime Minister of Israel. In December of that same year, the Shamgar ruling was overturned by Begin’s government and replaced by another secret governmental decision – this time to stipulating that there was no restriction on the applicability of the Absentee Property Law with respect to East Jerusalem. Since that time, the use of the Absentee Property Law in East Jerusalem has almost invariably been cloaked in secrecy. Nonetheless, based on empirical data it appears that from 1977 through the present day, the law has never been systematically enforced in East Jerusalem and, with only one exception, has not been exploited as a major tool of Israeli policy in East Jerusalem. That exception, however, is a serious and illuminating one, involving the extremely sensitive neighborhoods of the Old City’s Muslim Quarter and Silwan.
The Battle for the Muslim Quarter and Silwan
Beginning in the mid-1980s the Absentee Property Law was at the heart of a covert and concerted government campaign to take over targeted Palestinian properties in the Muslim Quarter of Jerusalem’s Old City and in Silwan.
The “system” worked as follows: the settler organizations would submit an affidavit to the Absentee Property Custodian, stating that the targeted property was owned by an absentee. Based solely on this affidavit (which was a times false testimony) the Custodian would declare the property “absentee property” and immediately hand it over to the ILA, which would immediately hand it over to the settler organizations that had initiated the process. To this day, control over many of the properties inhabited by the settlers in the Muslim Quarter of the Old City derives from this covert and systematic abuse of the Absentee Property Law.
This strategy came to a head in October 1991 when, late at night and in a semi-military fashion, settlers entered 11 dwellings in the Palestinian neighborhood of Silwan. In the wake of these takeovers, an Israeli Member of Knesset (Haim Oron) led an investigation (with his attorney, Daniel Seidemann) which ultimately “cracked the code” and publicly disclosed how the Absentee Property Law was being abused by the settlers and their allies in the Israeli government in order to displace Palestinian families and establish settler enclaves inside Palestinian neighborhoods of East Jerusalem.
Oron and Seidemann challenged the legality of this tactic in a suit before the Israeli Supreme. Apparently deeming the case too politically radioactive to handle, the Court elected not to intervene. However, in July 1992 Yitzhak Rabin was elected Prime Minister of Israel. Shortly after taking office, he established a an interdepartmental commission to examine the governmental policies geared to take over Palestinian properties in East Jerusalem, led by the Ministry of Justice’s Director General, Haim Klugman. In September 1992, the Klugman Commission submitted its findings to the Israeli government – a chronicle of the systematic illegalities, irregularities and abuse of power that entailed, among other things and primarily, the use of the Absentee Property Law in East Jerusalem. That same month, the Israeli Cabinet adopted a series of resolutions due to prevent a recurrence of the abuses detailed in the report, and most prominently the abuse of the Absentee Property Law.
Regrettably, those cabinet resolutions were never fully implemented. Once again, the Absentee Property Law was found to be too politically “hot” to handle. While the application of the Absentee Property Law in East Jerusalem was unofficially/informally suspended at that time, the law remained technically in effect, unchanged, and technically applicable to East Jerusalem.
It must be noted that even in the absence of the its systematic application in East Jerusalem, that Absentee Property Law has had a devastating effect on the urban development of the Palestinian sector of the city. Any Palestinian who would seek to carry out a real estate transaction would generally be required to secure the approval of the Absentee Property Custodian. Palestinian residents of East Jerusalem have long quite understandably feared that doing so would place their properties in the crosshairs of the Custodian, jeopardizing their title claims. Consequently, Palestinians property owners in East Jerusalem have for the most part refrained from carrying out real estate transactions, or have refrained from reporting such transactions to Israeli authorities. As a result, the Absentee Property Law has had a passive but quietly devastating impact, preventing the emergence of a rational real estate market in East Jerusalem and stunting urban development of the Palestinian sector.
The High Court & the Absentee Property Law
The 1990s saw a number of appeals to Israel’s High Court of Justice, seeking to compel the government to implement the findings of the Klugman committee and the government resolutions of September 1992, but to no avail. Through the present day, the Israeli Courts, including the High Court of Justice, have systematically avoided addressing the question of the applicability of the Absentee Property Law in East Jerusalem.
One of the appeals brought before the Supreme Court is particularly illuminating. In the cabinet resolutions of September 1992, the government instructed the State Comptroller to investigate, among other things, the use and abuse of the Absentee Property Law in East Jerusalem. In 1997, the State Comptroller approached Prime Minister Benjamin Netanyahu saying that the findings of this investigation were so damaging that they would cause grave harm to Israel's international standing. In response, Netanyahu instructed that the investigation be called off – not due to a lack of findings, but, rather, owing to the seriousness of those findings. MK Oron and Seidemann appealed to the Supreme Court, and, in response, Netanyahu’s government to the extraordinary step of repealing the September 1992 resolutions. Once again the Court elected not to intervene. As a result, the State Comptroller’s investigation, mandated by the 1992 Cabinet resolution, was never completed, and none of the findings that do exist – which presumably remain in the State Comptroller’s safe – were ever published.
The Barrier & the Re-Emergence of the Absentee Property Law in East Jerusalem
In 2004, there was a major change in Israel’s policy regarding the use of the Absentee Property Law in East Jerusalem. During this period, Israel was constructing the separation barrier/wall in and around East Jerusalem. Due to Israeli decisions related to the routing of the barrier, some problematic and anomalous land issues emerged – for example, some Palestinian landowners residing in Bethlehem found their olive groves cut off from the, left on the Jerusalem side of the barrier. At the time, the Israeli Defense Ministry promised that special arrangements would be put into place to permit them access to their land across the barrier.
However, in November 2004, when the Palestinian landowners requested the promised permits to access their land, they were told by Israeli authorities that the land had been declared “absentee property” and taken over by Israel. When the matter was investigated by their attorney (Daniel Seidemann) it was discovered that some months prior, the Israeli government had secretly adopted a resolution whereby the Absentee Property Law was to be systematically applied throughout East Jerusalem, including in the Bethlehem case and contrary to promises made to landowners by the Defense Ministry.
An initial challenge – questioning the legality of the decision – received no response from the Attorney General. When the story was subsequently broken in the Israeli and international media, a major international uproar ensued. In January 2005, under growing international pressure, the Israeli Attorney General Menachem Mazuz handed down what seemed to be a revolutionary and categorical ruling. Under the binding opinion he issued, West Bank residents who owned property in East Jerusalem were determined to be only “technical absentees”, and consequently the Absentee Property Law was not to be applied to them, except under extraordinary circumstances and on the basis of specific criteria to be subsequently lay down by the Attorney General. In the rare circumstances where the Absentee Property Law was applied in East Jerusalem, affected Palestinians have the right under that same law to appeal to an Israeli tribunal empowered to deal with the release of absentee property.
With the Mazuz ruling, some might have concluded, understandably, that the issue of the applicability of the Absentee Property Law in East Jerusalem had at long last been laid to rest. That conclusion, regrettably, would have soon been proven wrong.
Post-Mazuz, Back to the High Court
In the years following the Mazuz ruling the Absentee Property Law has, periodically, continued to be applied by Israel in East Jerusalem to take over additional Palestinian properties. In a number of cases the issue has been brought before the courts, and contradictory judgments regarding the application of the law have resulted. In some cases, the courts ruled in accordance with the Mazuz opinion, to the effect the law could not be applied. In other cases, verdicts allowed the actions of the Absentee Property Custodian to stand.
In 2009, appeals regarding the conflicting judgments in lower courts regarding the applicability of the Absentee Property Law in East Jerusalem came before the Israeli Supreme Court. In recognition of the importance (and radioactivity) of the issue the Court has, over the four years since then, conducted deliberations on the appeals with an expanded panel of seven justices.
The current “news” about the Absentee Property Law – in the form of the newly articulated position of the Attorney General – came in the context of a hearing that was part of this deliberation process. Today, following that hearing, the questions pending before the Court is as follows: is the Absentee Property Law inapplicable to “technical absentees” from East Jerusalem (i.e. West Bank residents), as ruled by past Attorney General Mazuz? Or is it in effect in Jerusalem, to be applied with restraint, as asserted by current Attorney General Yehuda Weinstein?
The Weinstein Opinion
In arguments before the Court, Israel’s current Attorney General, Yehuda Weinstein, argued (by means of the State Attorney) that he was merely interpreting the Mazuz position. In truth, there is a world of difference between the positions of Weinstein and Mazuz. Mazuz’s arguments were grounded in the conviction that Palestinians have legitimate, inalienable property rights in East Jerusalem and that the Absentee Property Law does not apply to them, except under extreme (and undetermined) circumstances. In contrast, Weinstein’s position is fundamentally different. Key elements of his view, as articulated before the court and in his written opinion, are as follows:
· The Absentee Property Law applies in East Jerusalem. Palestinian residents of the West Bank who own property in East Jerusalem are absentees, no different from other absentees. Any properties they own in East Jerusalem are legally defied as absentee property and automatically forfeit. As such, ownership of these properties is legally vested in the Custodian of Absentee Property who may transfer title to the Israel Lands Authority.
· There is an Israeli tribunal, established under the Absentee Property Law, which is empowered to deal with the release of absentee property. Palestinians whose East Jerusalem properties have been declared absentee may appeal to it. In such an appeal, the burden of establishing claim to property ownership is imposed on the Palestinian individual, who in effect enters the process presumed guilty of being an absentee and thus having no legal grounds on which to claim property rights in Jerusalem. The tribunal may elect – for unspecified reasons based on criteria that appear to be informal and not public – to restore the property to its (former) Palestinian owner. Any such decision to release properties back to their absentee owners derives exclusively from the tribunal’s discretionary powers and magnanimity, rather than from any inalienable property rights. Thus, the validity of Palestinian property claims in East Jerusalem is a function of the judgment of an Israeli body whose members do not share a community or interests with those who come before it. It is worth noting that the current head of the tribunal in question is a senior official from the Prime Minister’s Office, Ehud Prawer, who has become infamous for authoring the notorious Prawer Plan which would forcibly uproot and “resettle” Bedouin in the Negev, in order to clear the way for the construction of new Israeli towns.
· The Absentee Property Law is and should be applied with self-restraint in East Jerusalem – not in terms of refraining from declaring properties absentee, but rather in terms of the tribunal maintaining a “liberal policy” in releasing properties after they have been already declared “absentee.” Should the tribunal decide to rule in favor of Palestinians in those cases where the property in question is located within an area populated by Palestinians, title and possession generally reverts to the Palestinian owners. When the property in question is located in an Israeli area (for example, a building in or adjacent to the East Jerusalem settlement neighborhood of Gilo whose Palestinian owner has challenged its designation as “absentee property’), the Palestinian owners receive monetary compensation in lieu of the property, “in order to maintain public order.” And while according to the letter of the Absentee Property Law, Israeli settlers living in the West Bank are legally “absentees” whose properties inside Israel should legally become absentee property, Weinstein ruled that the law does not apply in these cases.
The foregoing raises profound questions of equity and the rule of law. In the case of the Israeli settler in the West Bank, the law is interpreted with great flexibility, while in the case of the Palestinian with a home in a village down the road, the law is interpreted literally. Likewise, for decades successive governments of Israel have permitted the Absentee Property Law to be exploited to implant extremist Jewish settlers in the heart of Palestinian neighborhoods of East Jerusalem. At the same time, it has long been the policy of Israel to interpret the same law in manner that prevents Palestinians from owning property or living in Israeli areas. This discriminatory implementation – which upholds the principle that “Jews should be able to live anywhere” but Palestinians should be restricted to only certain neighborhoods – underscores a clear national-ethnic bias in the interpretation and execution of this law, to the detriment of Palestinian property owners.
At its heart, the Absentee Property Law basically determines that, for Palestinians, land abandoned in the heat of battle in 1948 is lost to them except by means of the tribunal’s discretion, while the property rights of Israelis who lost properties in East Jerusalem in the same war are virtually unassailable. Indeed, on May 20th, one day before the High Court hearing on the absentee property cases, the High Court heard an eerily similar case: the case of the Shamasneh family, which was ordered by the lower courts to vacate their home in Sheikh Jarrah, based on a 1970 Israeli law permitting Israelis to recover property in East Jerusalem that they owned prior to 1948. While initially the legal case against the Shamasneh family was filed by the Israeli Custodian General, it became apparent during the proceedings that this government official was acting in collusion with the settler organizations – a tactic familiar from the 1980s.
What next in the High Court?
It is not clear where things go from here. While far from providing a conclusive indication as to a final ruling, statements made by members of the High Court panel during the May 21st hearing are revealing. There were clear expressions of discomfort with the injustice entailed in the application of the law and its impact on the Palestinian landowners. They also expressed dissatisfaction with the fact that no criteria have been approved for the release of properties to Palestinian residents, and that no data was available as to the numbers of properties declared absentee, or the numbers of those released to the original owners. The Court was very blunt in stating that the existing arrangements are unsustainable.
At the same time, it was apparent that the Court is treating this case as “radioactive.” One Justice commented that issues surrounding the Absentee Property Law are “a Pandora’s box.” Indeed, the Court hinted, and not too gently, that the entire matter must ultimately be brought before the Prime Minister and the political echelons of the Israeli Government – in this decades-long saga, the latest indication of the Court’s desire to not be compelled to hand down a substantive judgment.
If accepted, the position submitted to the court by Israel's attorney general will have both practical and symbolic ramifications. Even if the absentee property law is not systematically implemented, it will continue to be a serious impediment to the urban development of East Jerusalem. Even if it is applied out sporadically the law has a devastating effect on those effective. As in the past, it can be applied in cases where the authorities “really want” a given property (which appears to be the case with the confiscation of the Cliff Hotel on the border with Abu Dis). Or the law can be invoked when the authorities have a score to settle with the claimant, which appears to be the case with Husseini family, which has lost numerous properties under the law (for example Shepherds Hotel, Mufti’s Grove and the Bet Daoud Community Center). The Absentee Property Law is by its very nature so draconian that its abuse is almost inevitable.
The symbolic implications of applying this interpretation of the law are equally problematic. It would signals to Palestinian residents of East Jerusalem (and its environs) that, in the eyes of Israel, they are not an indigenous, empowered collective with inalienable rights, but rather they are viewed as a foreign minority with limited rights that derive exclusively from Israeli sufferance.
What Next for the Absentee Property Law in Jerusalem?
The next Court hearing has been scheduled for September 16, 2013. Prior to that hearing the Attorney General will likely submit additional clarifications regarding his position. Any attempts to predict the outcome of the Court’s deliberations on this case are highly risky and should be treated with utmost caution.
The Court has, as noted above, expressed dissatisfaction with the existing legal arrangements, (including those proposed by the current Attorney General). It is not inconceivable that the Court will rule in favor of the Palestinian appellants and uphold the Mazuz opinion, while rejecting the position held by their current Attorney General. However, such an outcome is unlikely. Past experience and the subtext of comments already made by the Court clearly indicate a desire to avoid handing down any judgment that would invalidate major portions of the law. This will most likely result in the Court using its powers of persuasion to compel the government to make certain amendments in the way the law is applied – the minimum necessary to address the issues raised by the case, while allowing the Court to reject the appeals filed by the Palestinian residents and permit it to avoid becoming embroiled in a major domestic controversy.
Practically speaking, it is reasonable to expect the status quo in Jerusalem to continue. On the one hand, there are no indications (as yet) of plans to use the Absentee Property Law to begin systematically seizing property across East Jerusalem or to once again harness it for the benefit of the settlers. On the other, there are no indications that use of the law in East Jerusalem will be entirely abandoned. There is every reason to expect it to continue to be exploited sporadically in specific cases, as discussed above.
Finally, the following must be emphasized: the Absentee Property Law is not merely an isolated, bad law that has been implanted in a reasonable, just, functional legal system governing affairs in East Jerusalem. The Absentee Property Law and the way it is being applied is emblematic of the very nature of the foundations of Israeli rule over the Palestinian sector in East Jerusalem. The policies described by the current Attorney General, and the assumptions inherent in them, are not merely the reflection of bad legislation. Rather, they are the concrete manifestations of Israeli occupation. Bad laws that perpetuate and support the occupation, whether in the West Bank or East Jerusalem, cannot be “fixed” by tweaking their text or adding qualifications to make their implementation more “liberal.”
The only antidote to the bad laws that undergird the occupation is an end to the occupation. This is precisely why in all likelihood the status quo in East Jerusalem – the continued arbitrary application of a law that may have been a necessary evil to consolidate the fledgling state of Israel in the 1950’s but that since that time has morphed into an unmitigated evil – will be unchanged until there is a political solution that ends the an unjust and unsustainable rule over the Palestinians of East Jerusalem.