There's Never Enough Absentees

Israel is getting out of the Gaza Strip to rid itself of a demographic and military nightmare. The Gaza disengagement plan, however, is not the only means of dealing with the demographic threat. The government recently pulled an old tool out of its arsenal – The Absentees' Property Law.

The 1950 Absentees' Property Law, which former Jewish National Fund Chairman Avraham Granott called a 'legal fiction', allowed the Israeli government to transfer property of anyone declared to be 'absent'(¹) to the state by virtue of a government payment to the Israeli Custodian of Absentees' Property. The Israeli government thus claimed that the property had been acquired legally (i.e. by payment) rather than through confiscation. Jews were exempt from the provisions of the law.

Commenting on the Law, the Israeli Supreme Court noted at the time that “[t]he interests of Arab citizens were ignored and evidence presented by the Custodian to certify them as absent were frequently groundless [...].”(²) During the drafting of the law, the definition of an absentee was changed to include all those who had abandoned their usual place of residence to ensure that if in the future Israel acquired control of the West Bank and Gaza Strip it would not have to return property to Palestinian refugees living there.(³)

Israel 'acquired' millions of dunums of Palestinian refugee and IDP property under the Absentees' Property Law. The property was transferred to the state which in turn sold more than 2 million dunums to the Jewish National Fund. All of this land is now held either by the state or the JNF as the inalienable property of the Jewish people.

In July 2004 the Israeli government adopted Decision No. 2297 according to which it would have been able to sell or lease Palestinian property in eastern Jerusalem classified as absentee under the Absentee Property Law. (⁴) In 1967 the majority of Palestinian residents of eastern Jerusalem (who held Jordanian citizenship prior to 1967 when east Jerusalem was under Jordanian control) were classified as absentees. Had the property law been applied, all Palestinian inhabitants of eastern Jerusalem who owned property in the city and held Jordanian passports would have been required to cede title to their property to the state through the office of the Custodian of Absentee Property (Articles 4 and 6).

Due to the fact that it was not politically or practically feasible to expropriate this property in 1967 the government exempted Palestinian residents of eastern Jerusalem from the application of the law. The exemption was carefully qualified to refer only to property 'in that area' which was defined as east Jerusalem. In other words, Palestinian residents of east Jerusalem who were considered absentee under the Absentees' Property Law with regard to their property in 1948, either in western Jerusalem or in other areas inside Israel, were not permitted to reclaim their property.

Update: Citizenship/Family Reunification

On 31 January 2005 the Israeli Knesset extended the Nationality and Entry into Israel Law (Temporary Order) – 2003 for an additional four months. (See, “When all families are potential terrorists,” Majdal 23) The UN Committee on the Elimination of All Forms of Racial Discrimination has called upon Israel to repeal the law.On 1 March the Supreme Court of Israel rejected a motion to temporarily freeze the Law.

The Court based its decision on the short period of extension and the fact that the writing of new amendments was in a very progressive stage. According to Adalah, “The Court decision confirming the extension of a law that prevents spouses from living together in Israel does not give any value to the basic right for family life. In this case, the Supreme Court preferred institutional considerations and negated basic human rights that are recognized in international human rights covenants ratified by Israel.”

In early March 2005 the head of Israel's National Security Council proposed restrictions on granting citizenship to foreign residents on the basis of marriage to Palestinian Israelis. “The Citizenship Law is the way to overcome the demographic demon,” said Major General (Res.) Giora Eiland. According to Arial Sharon, “There is no need to hide behind security arguments. There is a need for the existence of a Jewish state.”

According to the proposal in the works, the temporary order, which is set to expire at the end of May 2005, will be extended until February 2006, while introducing certain changes that Israel's Attorney General considers would withstand High Court of Justice petitions: allowing women over the age of 20 and men over the age of 35 to receive Israeli citizenship. It is estimated that 50 percent of requests for family reunification would be granted under the changes. The plan is to revise thoroughly the Citizenship Law itself in February 2006, and to legislate it anew along restrictive lines.

Sources: Adalah, Supreme Court Dismisses Motion to Temporarily Freeze Law Banning Family Reunification, 9 March 2005; Ha'aretz, 3 March 2005; Ha'aretz, 5 April 2005.

Second, the exemption under the Legal and Administrative Matters (Regulations) Law stated that residents were not to be 'regarded' as absentee: it did not state that residents were 'not' absentee with respect to their property. Thus, while Palestinian residents of east Jerusalem were not considered absentee in relation to the application of Israeli law, they were still absentee by virtue of the extension of Israeli law. This is what enabled the government to recently try to apply the law to enable further colonization in eastern Jerusalem and construction of the separation Wall.

The 2004 government decision only came to light in early 2005 after a number of embarrassing articles in the Israeli press. According to Israel's Attorney General Menachem Mazuz, who subsequently ordered Finance Minister Benjamin Netanyahu to cease applying the law to eastern Jerusalem properties owned by West Bankers, the decision was “a clear-cut case of Israel's interests being to avoid opening new fronts in the international arena in general, and in particular in the arena of international law.”(⁵)

The Committee on the Elimination of Racial Discrimination has called upon Israel “to respect the property rights irrespective of the ethnic origin of the owner” in east Jerusalem. It also called upon Israel to remedy the fact that the “right of many Palestinians to return and possess their homes in Israel is currently denied.” (CERD/C/304/Add.45) The Roadmap says that the government of Israel is not supposed to confiscate the property and houses of Palestinians.

Notes

(1) An absentee was defined as anyone who, on or after 29 November 1947, had been a citizen or subject of one of the Arab countries at war with Israel; in any of those countries, or in any part of Palestine outside the jurisdiction of the regulations; or, a citizen of Palestine who had abandoned their place of habitual residence.
(2) Don Peretz, Palestinian Refugee Compensation. Washington, DC: The Center for Policy Analysis on Palestine, 1996, p. 5.
(3) Tom Segev, 1949: The First Israelis. New York: Henry Holt and Company, 1986, p. 80.
(4) Ha'aretz, 30 January 2005. The decision did not appear as is customary in Reshumot, the government gazette, and until Meron Rapoport revealed the affair in Ha'aretz (21 January) it was concealed from the public.
(5) Ha'aretz, 2 February 2002.