The Association for Civil Rights in Israel 31 January 2005
In response to a written appeal by ACRI’s Chief Legal Counsel Dan Yakir for an immediate repeal of the unpublished government decision to extend the Absentee Property Law to East Jerusalem and the surrounding villages, Menachem Mazuz made clear that he had no knowledge of the decision and had never been informed of its existence. He further added that the issue is under urgent consideration and that he will issue a statement regarding his position within the next few days.
The Absentee Property Law that was enacted in 1950, defines an “absentee” as a person who “at any time” in the period between November 29, 1947, and September 1, 1948, “was in any part of the Land of Israel that is outside the territory of Israel (meaning the West Bank or the Gaza Strip) or in other Arab states”.
The law stipulates that the property of such an absentee would be transferred to the Custodian of Absentee Property, with no possibility of appeal or compensation. From there, by means of another law, the property was transferred, so that effectively the property that was left behind by Palestinian refugees in 1948 (and also some of the property of Palestinians who are now citizens of Israel) were transferred to the State of Israel.
In 1967, following the war, Israeli law was declared applicable to the eastern part of Jerusalem, which meant that the Absentee Property Law also took effect there. To minimize the damage, the decision was that the status of absentee would not apply to residents of East Jerusalem.
The residents of the West Bank with property in Jerusalem remained in a gray area. Technically, under the letter of the law, they were considered absentees. Although they were prohibited from officially registering their rights to the land, in practice this did not affect their ownership of the property.
A directive issued by Meir Shamgar, the Attorney General, stated that the owners could prove their existence and claim their property without being considered absentees. It is this directive, which has been in existence for 37 years, that was rescinded on July 8, 2004 in a cabinet meeting.
In his appeal to the Attorney General, Attorney Yakir emphasizes the fact that the decision to extend the Absentee Property Law to East Jerusalem and surrounding Palestinian villages annexed by Israel in 1967, was never published on the Internet site on which all government decisions are published. It appears, he continues, that the government preferred to keep the decision a secret, in direct contravention of the basic tenets of good governance.
The decision also represents a disproportionate and severe violation of the right to ownership, freedom of vocation, and the right to a minimally dignified existence for the owners of the land.
Attorney Yakir also refutes the theoretical claim that security concerns required the extension of the law to East Jerusalem and the annexed villages to enable the construction of the separation barrier. One cannot seriously believe, he adds, that there is any connection between security considerations and the confiscation of an apartment in East Jerusalem that is rented to a local resident and whose owner lives in Bethlehem.
Nor is there any connection between security concerns that exist in the year 2005 and the property rights of an individual who is regarded as an “absentee” because he did not reside in Israeli territory at any time between the years 1947-48.
In addition, Attorney Yakir states that the Absentee Property Law was legislated over five decades ago, and reflected a particular historical perspective that is irrelevant to the current constitutional system, social norms, and factual basis upon which the decision to extend the law was based.
In conclusion, Attorney Yakir demands that the Attorney General instruct the government to rescind the decision, or alternatively, make a new decision that negates the previous one. He also demands that the authorities be instructed not to apply the Absentee Property Law to assets in East Jerusalem or the surrounding villages, and that assets that were granted to the custodian by the powers vested in him by law, be returned to their owners.
It should also be noted that concomitant to what is set forth above, Israelis officials issued a statement this morning to the United States government in which they stated their intention to re-examine the cabinet decision to confiscate East Jerusalem property owned by Palestinians who have been cut off from their land by the separation barrier.