Israeli Attempt to Impose Absentee Property Law to Arab Property in East Jerusalem

April 22, 2005

by Ir Amim, Jerusalem

(For more information visit Ir Amim's Website.)

The second half of 2004 witnessed a re-emergence of the use of the Absentee Property Law in East Jerusalem. In what seemed to be an unexpected secret an effort to seize thousands of dunams of land, privately owned by Palestinians, in East Jerusalem and transfer them to the State's Development Authority.

This policy reveals the intensification of government policy: using the Separation Barrier (the "Jerusalem Envelope") to disconnect East Jerusalem from the West Bank, and increasingly "Israelize" the Eastern part of the city. Had it not been halted - through the vigilance of non-governmental groups and the press, and ultimately through the intervention of the Attorney General - this clandestine operation would have enabled the construction of new Jewish neighborhoods along the southern flank of the Separation Barrier; sealing off the Palestinian neighborhoods of southeast Jerusalem from their West Bank environs.

The following report will discuss these developments and their significance, and will briefly describe the work done to counter this government policy.

Use of the Absentee Property Law in Jerusalem - 2004/05

When construction started on the Separation Barrier in 2002, Ir Amim's legal advisor, Daniel Seidemann, began representing a number of Palestinian landowners from the Beit Jalla and Bethlehem area, to ensure their continued access to their olive groves, which lay within the Jerusalem municipal borders. Although they had worked and tended their groves for generations, unhampered by the fact that they lived on the other side of the Jerusalem municipal border from their lands, the construction of the Barrier on the municipal border created a new situation in which landowners would be physically separated from their property. The IDF had given written assurances that they would be entitled to access their properties after the barrier was completed, but when they applied for the promised permits in anticipation of the 2004 harvest, the authorities balked.

On November 14, 2004 a written response was received from the security forces, stating that "permits for entry into Jerusalem cannot be provided to your clients, in consideration of the fact that the land no longer belongs to them, and has been transferred to the Custodian for Absentee Properties, under the Law of Absentee Properties 1950."

It soon became apparent that, for the first time since 1967, Israel was systematically applying the Absentee Property Law in East Jerusalem. This policy carries with it far-reaching consequences for Palestinian private property in the city. Such application of the Absentee Property Law in Jerusalem could affect the ownership of up to 50% of the Palestinian-owned land in the city.

Significance of the Issue

Why was the Absentee Property Law invoked at this particular time, and in the particular areas, in which, apparently, it was used?

A look at where the main property seizures took place can help clarify the issue of the significance of the use of the Law at this particular moment in Jerusalem's history. While the scope of the application of the law remains secret, Ir Amim has ascertained that the Law was widely invoked on Jerusalem's southern border between Bethlehem, Beit Sahur, and Beit Jala: the lands of Hirbet Mazmoria, south-east of Har Homa, the slopes of Bethlehem and Beit Jala and lands of the village of Wallajeh, in the south-west corner of the city were clearly targeted.

Previously, the government had commissioned a town plan, and commenced work on another, towards the goal of building thousands of housing units in these areas, effectively lining the southern portion of the Separation Barrier with Jewish housing projects. The land on which these new neighborhoods were planned, however, belonged to Palestinian landowners, many of whom lived outside the Jerusalem municipal jurisdiction. Because of an earlier promise to the United States government, the Israeli government could not use its right of eminent domain, which was invoked in the past to take private (Palestinian) lands for "public" purposes (Jewish housing projects).

These new, planned Israeli neighborhoods would create a wedge between the Palestinian neighborhoods of southern Jerusalem - Sur Baher, Um Tuba, Hirbet Mizmoria and Wallajeh (itself bisected by the municipal boundary) - and the Palestinian cities and towns south of Jerusalem - Bethlehem, Beit Jalla and Beit Sahur. Sealing Jerusalem's southern border with Israeli neighborhoods would effectively cut Palestinian Jerusalemites from their environs in the West Bank, and would sever family and commercial ties.

Finally, completing such a housing "wedge" would preclude possible future negotiated settlement with the Palestinian Authority, to create a viable, urban connection between the Bethlehem area in the south, East Jerusalem in the center, and Ramallah in the north virtually thwarting any geographical or political connection between East Jerusalem and the Palestinian State. Such development would place one more nail in the coffin of a negotiated two-state solution.

Thus, the use of the Absentee Property Law in 2004 in an attempt to seize thousands of dunams of land along the southern flank of the Separation Barrier belies political, and not security, considerations for the construction and operation of the Barrier.

Public Response to Invocation of the Absentee Property Law

The public response to this issue in January 2005 demonstrated the power of a change in public awareness regarding the Palestinian / Israeli conflict. Aggressive unilateral actions, in the context of widespread terror attacks and a political stalemate, have been widely accepted by the Israeli public. In the context of a window of opportunity to return to negotiations, the same unilateral actions appear unacceptable. The public outcry demonstrated a growing public demand for a return to bi-lateral means of acting; and a growing wariness of unilateral actions designed to put facts on the ground, in order to by-pass future negotiations.
Absentee Property Issue Still Unresolved

Despite the Attorney General's decision to halt the current use of the Absentee Property Law in Jerusalem, the law remains on the books. It is not inconceivable that, under altered conditions, it could be invoked in the future.

It is notable that, following his swift public response, the Attorney General has yet to respond to the written requests for action from the Palestinian landowners and Ir Amim. Specifically, the following issues remain open:

Therefore, Ir Amim is continuing its legal and public action regarding the landowners whose lands were seized in 2004.

It is critical to continue focusing advocacy and public attention on this issue, in order to expose fully the public mechanisms and policies connected to land seizures under the Absentee Property Law. It is vital to maintain accurate monitoring of any future moves by the government to take over private lands in Jerusalem.

Ir Amim continues to monitor any use of the Absentee Property Law in East Jerusalem. In addition, work continues to expose to public scrutiny the secret state mechanisms, which operate in regard to the Absentee Property Law. As U.S. Supreme Court Justice, Louis Brandeis, said, "Sunlight is the best disinfectant."


AppendixThe Absentee Property Law - Background

The Absentee Property Law was passed in 1950, in order to enable the fledgling State of Israel to seize and ultimately assume ownership of lands left behind by Palestinian refugees, who fled following the United Nations decision on partition. The Law states that any landowner who left his/her permanent residence at any time following November 29, 1947 to any Arab state, or to any area of the Land of Israel (as defined under the British Mandate), which is not the State of Israel (i.e., the West Bank and Gaza), automatically forfeited any property within the State of Israel to the Absentee Property Custodian - a public body, which subsequently transferred title to these properties to the State.

The fact of "absenteeism" is a statutory condition. No due process, including notice to the landowners, procedure for objections, nor any compensation, is required in order to implement the transfer of "absentee" properties to the State. This means that absentees could lose their lands without even being aware of it - as happened with the Bethlehem landowners in 2004. It is important to note that the Absentee Property Law remains in effect until the end of the period of the State of Emergency, which has continually been renewed by every Israeli Knesset to this day.

The Law provides for absentee properties to be transferred to the Custodian for Absentee Properties, implying that the properties will be held in trust by the State for the rightful owners. In reality, however, the Custodian was specifically authorized by the Law to transfer the absentee properties to a government Development Authority, which could then transfer them to other owners, or could develop them. In this way, in the 1950's, the Absentee Property Law became the vehicle for the transfer of millions of acres of land - primarily in the Galilee and the Negev - from private Palestinian ownership to State ownership. Most of these lands were then used to build kibbutzim, moshavim, and development towns for the Jewish population of the young state.

Use of the Absentee Property Law in Jerusalem: 1967 - 2004

When Israel took over East Jerusalem in the 1967 Six-Day War, and annexed it, it became possible to invoke the Absentee Property Law in the city. Use of this law in East Jerusalem could affect tens of thousands of dunams - perhaps up to 50% - of Palestinian private lands in the city. In many cases, these lands were owned by people living just over the Jerusalem municipal line - in Bethlehem, Abu Dis, Beit Jalla, or Ramallah.

From 1967 to 1970, hesitant attempts were made to invoke the Absentee Property Law in East Jerusalem; but they were met with stiff international opposition. Recognizing that such questionable practice of wide-scale seizure of private property in Jerusalem would create an unacceptable situation - in the eyes of the international community, and in terms of security - all governments of Israel since 1967 have decided not to make use of this law in Jerusalem. Over the past 37 years there has been one brief exception to this practice: in the late 1980's and early 1990's, when then-minister Ariel Sharon invoked the Absentee Property Law to take over Palestinian homes in the Moslem Quarter of the Old City and Silwan.

Under the original law, Palestinians could become "absentees" without leaving their homes, because, in the period from 1947 to 1967 they were living in the Land of Israel, but not the State of Israel. Suddenly, following the Knesset's passing of the Jerusalem Law shortly after the Six-Day War, (which declared 70 sq. km. of West Bank land to be part of Israel), they became residents of the State of Israel, and their lands fell into the category of "absentee properties." Thus, Palestinians could find themselves legally evicted from homes they never left.

This issue was addressed by legislation enacted in 1970, stating that people who lived in Jerusalem and owned land in Jerusalem would not be subject to the Law. Over the years, however, even these lands once again came up for seizure, when heirs of the original owners moved out to Jordan or Kuwait, or just over the municipal boundary to Ramallah or Bethlehem. The amendment also did not affect lands which lay in the area annexed to Jerusalem, whose owners remained in towns surrounding the annexed area.

Recognizing that such practice of wide-scale seizure of private property in Jerusalem would create an unacceptable situation - in the eyes of the international community, and in terms of security - all governments of Israel since 1967 have decided not to make use of this law in Jerusalem. From 1968 a series of secret ministerial decisions were taken to limit use of the Absentee Property Law in Jerusalem.

In 1968 Attorney General, Meir Shemgar, (who later went on to become President of the Israeli High Court) ruled that use of the Absentee Property Law was improper in the case of Jerusalem:

"Since the property was not absentee property when the army entered East Jerusalem, and would not have turned into absentee property if East Jerusalem had continued to be part of Judea and Samaria, we did not see any justification for the annexation of Jerusalem resulting in taking away property from someone who was not actually absent."

From 1967 until 2004 the Absentee Property Law was never systematically invoked in East Jerusalem, with one significant exception. In the late 1980's a clandestine government campaign allowed the the Law tobe used to take over specific properties in Silwan and in the Muslim Quarter of the Old City. These properties were confiscated from their Palestinian owners and turned over to the Custodian for Absentee Property; and from there to settler organizations. So, in October, 1991 a Palestinian "absentee" awoke in his home in Silwan to find his personal effects being thrown out of the house which was no longer his.

In this way, Jewish settlers gained a foothold in the heart of Palestinian neighborhoods in East Jerusalem. These actions were taken under the tutelage of Ariel Sharon, who, during this period, acted in his capacity as Minister of Agriculture, and later as Minister of Construction and Infrastructure.

The "genetic code" of this secret campaign was cracked in 1991 when MK Haim Oron and advocate Daniel Seidemann (later, legal advisor to Ir Amim) took the issue to the High Court, which and the suit ultimately led to the establishment of an inter-departmental board of inquiry regarding the matter. In 1992 the resulting Klugman Report, put out by the Director General of the Ministry of Justice, contained a stinging criticism of the blatant and widespread illegalities entailed in the use of the Law, Despite a government decision in the same year, adopting recommendations geared to prevent a reccurrence of the illegal policies detailed in the Klugman Report, no such procedures were ever put in place.

During the Rabin government (1992-1995) it was decided not to invoke the Law. At no time, however, were properties seized under the Absentee Property Law restored to their owners. In 1995 Seidemann turned to the Supreme Court in order to compel the government to carry out its own decisions, and establish guidelines, which redress the past illegalities and prevent their recurrence. The government made undertakings to the High Court that the illegalities cited in the Klugman Report would be corrected. However, these undertakings never came to fruition.

In 1992 the Israeli government authorized the writing of a special report by the State Comptroller. However, five years later, officials in the Comptroller's Office contacted then Prime Minister, Benjamin Netanyahu, asking that the report be quashed, because of the severity of its findings. Once again Oron and Seidemann took the issue to court. Once again assurances were given that, despite the lack of a published report, undertakings would be made to correct illegal procedures.

It is notable that most decisions relating to the use of Absentee Property Law in Jerusalem have been veiled in secrecy, from 1967 to today. The treatment of this issue has resembled the treatment of a security issue, rather than a civic issue. As a result, it has been extremely difficult to invoke public scrutiny on the use of the Law. It should also be noted that, because of the original use of the Absentee Property Law to transfer millions of acres of Palestinian lands to the new State of Israel, the Israeli authorities, including the Israeli High Court is extremely reluctant to deal with the use of the Law in Jerusalem today. There is fear of establishing a precedent which would affect the status of vast tracts of land within the Green Line, on which hundreds of Jewish settlements have been built over the years.

Thus, the Law and its mechanisms remain in place today. The machine has not been dismantled; rather, it has been kept under lock and key, available to those politically prepared to turn on the ignition. This is what happened in 2004.