The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Adnan Abdelrazek

Danny Rubinstein

Sam'an Khoury

Daniel Bar-Tal

Walid Salem

Galia Golan

Gershon Baskin

Hind Khoury

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Dan Jacobson

Jumana Jaouni

Moshe Maoz

Munther Dajani

Khuloud Khayyat Dajani

Izhak Schnell

Lucy Nusseibah

Meir Margalit

Menachem Klein

Ali Abu Shahla

Ilan Baruch

Hanna Siniora

Yehudit Oppenheimer

Mossi Raz

Susie Becher

Frances Raday




Vol.20 No.2&3, 2015 / Time for International Legitimacy

Focus

Legalizing the Illegal

     by Ziad AbuZayyad

The Israeli High Court’s decision, issued April 15, 2015, to apply the Absentee Property Law of 1950 to properties in East Jerusalem owned by Palestinians living in the West Bank, considering them absentee property, is nothing more than another tool to allow the occupation to loot Palestinian property, in the West Bank in general and in Jerusalem in particular, for the benefit of Jewish Israeli citizens.

The final decision of the court confirmed the constitutionality of applying the Absentee Property Law in East Jerusalem, even as it talked extensively about the problems and complications that can result from applying this law in areas occupied in 1967, especially with regard to properties belonging to Palestinian residents of the West Bank. This is contrary to the position of former Israeli legal advisers of the successive Israeli governments, including Prof. Meir Shamgar and Menachem Mazuz, who had their own reservations and were always careful not to take a clear position on the legality of applying the law in East Jerusalem, first, because Israel has full military control over the West Bank, which can’t be claimed to be an enemy state; and second, because of the consequences of applying the law to properties in Jerusalem owned by Jewish settlers or Israeli soldiers in the occupied West Bank. At the same time, the new ruling left the selective implementation of the law in the hands of the Israeli government and its legal adviser.

The Core of the Conflict

Land has always been, and still is, at the core of the conflict between the Arabs and Jews in Palestine since the Zionist movement arose. As a result of the 1948 war, the Jews succeeded in occupying 78% of the total area of Mandatory Palestine, which later became known as the State of Israel, whereas the area designated for the Jewish state according to the Partition Plan under the 1947 United Nations Generally Assembly Resolution 181 was 56%. On the eve of the war, Arabs owned 93% of the total area while Jews and non-Arabs owned only about 7%.

The newly established State of Israel immediately resorted to the policy of grabbing the land and properties of Arabs who were forced to flee across what became its borders, and became known as the Palestinian refugees of 1948, as well as of those who remained within its borders and became known as Israeli-Arabs.

The Absentee Property Law

To facilitate the seizure of Arab land and property, Israel legislated a new law in 1950 known as the Law of Absentees’ Property applied retroactively from November 30, 1947. According to this law, all the lands and properties of the Palestinian refugees who were expelled from or who fled their homes, and the lands of the villages in the Galilee and the Triangle, which were outside the borders of Israel at the time of the ceasefire and annexed to Israel after the delineation of the Green Line between Israel and Jordan, were considered to be absentee property and was put under the control of the so-called Custodian of Absentee Property, whose job was to transfer this property for the exclusive use and benefit of the Jewish population.

The Present Absentee

In addition, all Palestinians who remained in small numbers in villages from which most residents had fled were resettled by the Israeli army in other locations. The initial aim was to facilitate military control over these Palestinians, under the Military Government (which lasted from 1949 to 1966). Later, they were considered absent from their original villages even though they had been forcibly removed from them, and the Israeli authorities had seized their property under the pretext that it was absentee property! They became known as “present absentees.”

This same law is what the Israeli High Court of Justice recently decided to apply to properties in East Jerusalem owned by Palestinians residing in the West Bank or elsewhere outside Israel.

Same Practice in the West Bank

After the Israeli occupation of the West Bank and East Jerusalem in 1967, Israel took its experience in expropriating Arab lands after the 1948 war and applied some of these methods in the West Bank and East Jerusalem. One of the most common tools for expropriating Arab lands in the West Bank was to claim the land as government land and to put the burden of proof of ownership on the Arabs. In many cases it wasn’t government land, but the Arab owners — who never expected anyone to challenge their right of ownership of land they had been cultivating generation after generation for many decades or even centuries — suddenly found their land taken and allocated to the construction or expansion of Jewish settlements. These land owners held no land deeds because such deeds were not issued in the past, and they used these lands based on the belief that each knows the borders between his plot and the neighboring ones, with no disputes between them.

As a matter of fact, there were areas owned collectively by the villagers as pasture for their sheep and other herds, known as Ameri land. The Israeli military authorities declared these lands to be government land and expropriated them for settlement activities, despite the fact that Israel is an occupying power and does not have the status of a “state” in the Occupied Palestinian Territories. Land in the occupied territories, even if it is government land, should be for the general benefit of the people under occupation; it belongs to the future state that they will create after ending the occupation — that is, the State of Palestine.

Jerusalem and the Absentee Law

In the 1980s and 1990s, settler groups in East Jerusalem actively seized hundreds of homes, mainly in the Old City of Jerusalem, in collaboration with the Custodian of Absentee Property, using all kinds of false means and forged documents. A detailed investigation made by the Klugman Committee nominated by the Yitzhak Rabin government in 1992 reveals many details about the illegal collaboration between settler groups Ateret Cohanim and Elad and the Custodian of Absentee Property to transfer Arab houses to the settlers, (see Talia Sasson Report, 2005, and Deputy Attorney General Judith Karp Report, 1984). Many of these houses were claimed as absentee property, even though the owners live in the West Bank under Israeli control. In many cases, these owners appealed to the Israeli courts and in some cases succeeded in regaining their property.

However, the new High Court decision blocks further recourse for anyone whose property was or will be expropriated in the future, and at the same time gives legitimacy to the illegal takeover of Arab properties in East Jerusalem owned by Arabs who live in the West Bank. It should be known that when Israel unilaterally annexed East Jerusalem in June 1967 and extended Israeli law, jurisdiction and administration to this part of the city, the Arabs living within the new municipal borders of Jerusalem drawn by Israel were given different color identity cards to distinguish them from other Palestinians living in the West Bank, and those living in the West Bank were prohibited from moving to Jerusalem or elsewhere within its borders. These are the people who are now losing their property in East Jerusalem.

It must be clearly be emphasized that East Jerusalem is an integral part of the occupied territory of the West Bank, and all Israeli measures are null and void as stated in many relevant United Nations Security Council resolutions on Jerusalem including Resolutions 252, 446, 478 and others.

The Implications of the Court Decision

The recent High Court decision gives the Israeli government the authority to decide selectively and on a case-by-case basis, to seize Arab property under the pretext that it is absentee property. But the fact that the new Israeli government is dominated by the right and extreme right national and religious fanatics suggests that the period ahead will see the intensive, large-scale looting of Palestinian property in Jerusalem, in front of the eyes of their owners, who have been prevented from living in Jerusalem or having access to it and live in the West Bank.

Giving the extreme right-wing Israeli government the power to decide on the application of this law on Arab property in East Jerusalem is like having the fox guarding the henhouse!

Multiple Policies and Multiple Statuses

The irony is that the West Bank is classified differently according to Israeli needs and interests! It is part of the Land of Israel if the goal is to settle there and take over the land and natural resources for the benefit of settlements, and it is abroad, outside of Israel, if the goal is to confiscate the identity cards of Jerusalemites who, as a result of housing problems, moved to live in the West Bank while keeping their business in East Jerusalem — under the claim that they had left their place of residence and moved outside Israel. It is defined as the territory of an enemy country when Israel wants to seize property in East Jerusalem owned by a Palestinian living in the West Bank, under the pretext that he is absent and lives in the territory of an enemy country!

This is the nature of the legality of Israel’s multi-purpose, multi-faceted measures, where law can be adjusted to serve a discriminatory political and national agenda. Arab properties in West Jerusalem, occupied in 1948, were considered to be absentee property and given to Jewish families and institutions, and their Arab owners, who became residents of Israel after the 1967 war were not allowed to reclaim their properties. At the same time, an Israeli Jew who owned a property in East Jerusalem before 1948 was granted the right to claim back his property in East Jerusalem, even though he, too, was an absentee in East Jerusalem between the 1948 war and the occupation of the city in 1967. Arab families who owned homes and lands in West Jerusalem and became refugees in East Jerusalem were not only prevented from returning to their homes in West Jerusalem, but also were evacuated from their East Jerusalem homes where they had lived since 1948, under the claim that these houses were built in the 1950s on land owned by Jews before 1948, as happened in the Sheikh Jarrah neighborhood.

The Problem Is Not Legal

The Israeli judicial system is used now to serve the policies and interests of the continued occupation. If there had been a few judicial verdicts in the past in favor of the Arabs, and particularly from the High Court, anyone who is aware of internal Israeli politics notes that the slide toward the nationalist right and extreme right in Israel has also affected the court, with politicians having a growing influence on the appointment of judges. As a result, there are now judges in the High Court who themselves are settlers and live in the occupied West Bank settlements, which are built in an occupied territory in violation of the Fourth Geneva Convention and the principles of international law and human security law. How can anyone who lives illegally in an illegal settlement be a custodian of law and justice!

Our problem with Israel is not a legal problem and can’t be resolved in the Israeli courts. The struggle against Israel’s settlement policy and the seizure of Arab lands and property in Jerusalem and the West Bank cannot be pursued through the Israeli judicial system and Israeli law, which is being employed to protect the interests of the occupation and its policies. These courts and laws will only facilitate the legitimization of illegitimate acts.

It’s international legitimacy represented by the UN and its institutions and the international community that can help to stop illegal acts committed against the Palestinians and their rights of property, freedom of movement, freedom of expression and the right of self-determination.

The Palestinian right to self-determination should not be held hostage by the Israeli- Palestinian negotiations. It is a non-negotiable right. The Palestinian campaign to internationalize the conflict aims to urge the international community to face its responsibilities and help end Palestinian suffering by putting an end to the Israeli occupation.








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