High Court Rules on Absentee Property Law in Jerusalem
On April 15, the Israeli High Court of Justice handed down a rulingregarding the continued use of the Absentee Property Law in East Jerusalem (see our 2013 report, Everything You Need to Know About Jerusalem & the Absentee Property Law, for background). The Court took the case after two lower courts ruled in contradictory ways with respect to application of the law in East Jerusalem, in once case ruling that the seizure of Palestinian property must be cancelled, and in a separate case upholding the state’s right to seize the property of another Palestinian. Both cases were appealed, forcing the High Court – which clearly preferred to stay out of this matter – to rule.
The Court’s ruling on this extremely sensitive issue epitomizes the extent to which bad policies yield bad laws and bad rulings. In this case, the Court ruled, in essence, as follows:
(1) The Court upheld Israel’s legal authority to seize so-called absentee property in East Jerusalem. This property at this point virtually exclusively of homes and land owned by Palestinians who live in the West Bank, which according the Absentee Property Law still counts as “enemy territory,” despite having been under Israeli control for nearly 50 years. Reportedly, the Court was concerned that if it failed to uphold the validity of the Absentee Property Law in Jerusalem, it could lead to a high number of new court cases with Palestinian property owners demanding that past seizures of land must be cancelled. Notably, settlers living in the West Bank should technically be subject to the Absentee Property Law, since they reside in “enemy territory,” but, of course, it has never been applied this way (Israel’s chief justice argued that the law should be amended to fix this “absurd” situation and make clear that it does not apply to Israeli settlers).
(2) The Court ruled that notwithstanding Israel’s right to use the Absentee Property Law to seize property from Palestinians in East Jerusalem, it should limit the implementation of this right as much as possible, and that going forward such seizures should have the approval of the attorney general.
(3) The Court ruled, in effect, that notwithstanding the principle of limiting the implementation of Israel’s right to use the Absentee Property Law to seize property from Palestinians in East Jerusalem, Israel can use the absentee property law to seize property in East Jerusalem from Palestinian owners when it really, really wants to.
What this means, in short, is that the Court has upheld in principle the validity of the Absentee Property Law which makes Palestinian property rights in East Jerusalem relative and conditional, where in the same circumstances such rights are, for Israelis, absolute. The Court thereby is allowing Israel, when it so chooses, to seize Palestinian property.
For the majority of Palestinians living in East Jerusalem, this ruling will have little direct impact, given that – at least at this point – Israeli settlers and politicians are not targeting their neighborhoods for settlement. For Palestinians living in neighborhoods targeted by settlers and right-wing politicians – like the Muslim Quarter of the Old City, Silwan, Sheikh Jarrah, Jabel Mukkaber, and the Mount of Olives – this ruling potentially opens the door for the renewal of the use of the Absentee Property Law to deprive them of their homes and property, while significantly limiting their legal recourse through the courts (a possibility settler advocates have cheered).
Talia Sasson, who for 25 years worked in the State Attorney’s office (and became famous after being picked by then-Israeli Prime Minister Ariel Sharon to write a landmark report on illegal settlement construction), published a powerful oped criticizing the ruling: Israel’s High Court denies justice to Palestinian property owners (highly recommended reading). PLO Executive Committee Member Hanan Ashrawi commented that “…With the application of its Absentee Property Law in occupied East Jerusalem, the State of Israel is perpetuating the Nakba of 1948” (longer analysis and remarks here). Elsewhere, the PLO reportedly called the ruling an effort to “legalise the occupation’s theft.” For a pro-seizure, pro-settlements perspective, see this report from Arutz Sheva.