The Absentee Property Law and Israel’s policies of forced evictions of Palestinians in East Jerusalem

On 31 May 2015, the District Court in Jerusalem will hear an appeal against the forced eviction of the Palestinian Ghaith-Sub Laban family from their home of almost 60 years. The Ghaith-Sub Laban’s case is one example of Israel’s ongoing policy of forcibly displacing Palestinians in occupied East Jerusalem and the West Bank, whether by evictions or house demolitions, to make way for expanding settlements. It also illustrates the operation of the Absentee Property Law, which has been used over the years as a central method by which Palestinian-owned property in East Jerusalem is transferred to Jewish settler organisations.

Ghaith-Sub Laban family: case study

The Ghaith-Sub Laban family have lived in their home in the old city in Jerusalem since 1953, when they entered a protected lease agreement with the Jordanian government custodian that took over “absentee” property following the 1948 hostilities. The agreement was renegotiated with the Israel Custodian of Absentee Property (Custodian) in 1967, giving the family a “protected tenant” status under the Protected Tenant Law of 1972, which allows them to remain as long as they continue to pay rent and live in the house.

In 2010, the Custodian passed the property’s ownership to Ateret Cohanim, an Israeli settler organisation who have publicly declared their aim of creating a Jewish majority within the Muslim quarter of Jerusalem’s Old City and who believe that any property which has been Jewish at any point in the past should be given to Jewish owners. Ateret Cohanim petitioned an Israeli Magistrates Court requesting the eviction of the Ghaith-Sub Laban family claiming that the family had deserted the house and thus lost their protected tenancy status. On the basis of testimony provided solely by settlers affiliated with Ateret Cohanim, the Judge – herself a settler – accepted their petition. A court order was therefore granted to evict the family on 14 September 2014, making way to allow a Jewish settler family to move in.

The family (consisting of two children aged nine and two as well as six adults) now lives under constant threat of eviction. Despite a pending appeal against the eviction order, due to be heard in May 2015, the Israeli court has refused to grant an ongoing injunction preventing the family’s eviction until the further hearing. Two attempts to forcibly remove the family have already taken place on 9th February and 16th March 2015. (To see LPHR’s Urgent Action letter to the UK Foreign Office on the Ghaith-Sub Laban case and their reply, please see here).

The Absentee Property Law

The Absentee Property Law (APL) was enacted following the 1948 war to facilitate transfer of property of Palestinian refugees to Israeli authorities. Following the annexation of East Jerusalem in 1967 all Israeli laws, including APL, were applied to the annexed area.1 This resulted in property of almost all Palestinian residents of the city being regarded as “absentee property”, subject to a 1970 law which made an exception for those who were both resident and physically present in East Jerusalem on the day of its annexation on 28 June 1967.

In 1969, the then Attorney General Meir Shamgar stated there was “no relevant justification to seize property that became absentee property at the same time that the owner of the property… came under the rule of the Israeli government authorities”2 and for the first decade after annexation, the APL was rarely relied on in relation to expropriations in East Jerusalem. This changed in 1977 under leadership of Ariel Sharon (then Agriculture Minister) and the law was increasingly used throughout the 1980s: settler organisations would identify property whose owners were believed to be “absent” from East Jerusalem on 28 June 1967, following which the Custodian would transfer the property, via the Keren Kayemet LeIsrael-Jewish National Fund (KKL-JNF), to settler’s organisations Elad and Ateret Cohanim at artificially low prices and without tenders.3

In 1992, an official committee of inquiry known as the Klugman Committee severely criticised use of the APL to evict Palestinian families from their homes in East Jerusalem, noting that in most cases the Custodian did not check basic facts in statements at all, and expressed serious concerns about conflicts of interest.4 However, restrictions on applying the law were loosened again in 1997, and then in 2004, Ariel Sharon’s cabinet decided to restore all powers of the Custodian in relation to property in Jerusalem. Palestinians petitioning for access to land that remained on the Jerusalem side of the separation wall were informed that entry permits could not be granted as the land had been transferred under the APL. The decision was critiqued by then Attorney General and now Supreme Court Justice Menachem Mazuz, who noted that applying the law to East Jerusalem raised “many serious legal difficulties regarding the application of the law and the reasonableness of its decision, and … the obligations of the State of Israel toward the traditional principles of international law.”5

Despite these various criticisms, on 15 April 2015 the Israeli Supreme Court confirmed that the APL applies to properties in occupied East Jerusalem, which belong to Palestinians living in the West Bank.6 This judgment, in the case of Civil Appeal 2250/06, Custodian of Absentees’ Property et al. v. Daqaq Nuha et al., (‘the Daqaq Nuha case’) appears to validate past expropriations as well as paving the way for further forced evictions to take place, albeit only in “rare cases” and with explicit approval now required from the Attorney General. Commenting on the judgment, Adalah General Director and Attorney Hassan Jabareen noted that it had validated “one of Israel’s most racist and arbitrary laws” and pointed out that there was “no other place in the world, not in democratic systems nor in dictatorial regimes, where such a law applies.”7

The wider context: limits on rights to build combined with impact of discriminatory housing policies

In addition to the increase in evictions, Israel operates a discriminatory system of allocating permits to Palestinians, which imposes severe limitations on the residents of East Jerusalem seeking to obtain initiate planning processes. With only 14% of East Jerusalem zoned for Palestinian construction,8 of which the majority is already built on, it is generally impossible for Palestinians to obtain a permit. This leaves them with the option of either building without a permit or internal displacement. Building a home without a permit leaves its residents extremely vulnerable – 72 such homes were demolished in East Jerusalem in 2013, and 51 in 2014.9 Only yesterday, a newly built Palestinian home was reportedly demolished by Israeli authorities in the Wadi Qaddum area of the Silwan neighbourhood of East Jerusalem.10 The Internal Displacement Monitoring Centre estimates that in East Jerusalem alone, 70,000 Palestinians have changed their place of residence between September 2000 and June 2012 as a result of these discriminatory policies and practices.11

Conversely, Israeli settlers benefitted substantially from the transfer of these properties. The organisation Ir Amin, which works to promote equality in Jerusalem (and for whom a member of the Ghaith-Sub Laban family, Ahmad Sub Laban, works as a field researcher), states there are now around 500 Ateret Cohanim-affiliated settlers living in Jerusalem’s Muslim and Christian quarters, in properties from which Palestinian families have been evicted.12

A 2012 report by the UN Committee on the Elimination of Racial Discrimination noted increasing concern “at the State party’s [Israel’s] discriminatory planning policy, whereby construction permits are rarely if ever granted to Palestinian and Bedouin communities.” It further called upon Israel to “reconsider the entire policy in order to guarantee Palestinian and Bedouin rights to property” and to “eliminate any policy of ‘demographic balance” from its Jerusalem Master Plan as well as from its planning and zoning policy in the rest of the West Bank.”13

Implications for international humanitarian and human rights law

At the time of its enactment, the APL, while drafted very broadly and giving substantial powers and discretion to the Custodian, was expressed as being exceptional and resulting directly from the war. Given that it was not envisaged as providing for indefinite expropriation of property, its adoption as a general rule of property law is therefore extremely problematic. Indeed these legal problems were recognised to a degree by former Israeli Supreme Court president Asher Grunis, who headed the seven-judge panel in the Daqaq Nuha case. He accepted that the “absentees” are not refugees, and they have acquired this “absentee” status “not because of any act taken on their part, but because of the transfer of control in Jerusalem to Israeli hands and the application of Israeli law there.”14

In addition, the eviction procedures raise a number of issues of compliance with international human rights provisions. The court decision in the Ghaith-Sub Laban family case, where the Judge along with all witnesses in the case are settlers, raises a substantial concern that the right to fair hearing guaranteed by Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) and right to non-discrimination under Article 2 (1) of the ICCPR, were violated. It is hoped this will be remedied in the higher courts..

The denial of housing as a result of evictions and / or refusals of planning permission may also breach Article 17 of the ICCPR, which provides for the right to protection of home and family life from arbitrary or unlawful interference, and Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides for the right to adequate housing. This latter right has been interpreted by the UN Committee on Economic, Social and Cultural Rights to include the right to legal security of tenure, including through rental agreements.15 Both rights should be guaranteed without discrimination as established by Article 2(2) of the ICESCR and Article 2(1) of the ICCPR.

Where a family like the Ghaith-Sub Labans is being evicted to clear the way for Israeli settlers, the threatened denial of the right to adequate housing and the right to a private life is a direct result of the family’s ethnicity. Conversely, the APL is not applied to property in Israel owned by the residents of Jewish settlements in the West Bank, despite its provisions being equally applicable to them.16

The evictions also raise important questions of international humanitarian law.17 Article 49 of the Fourth Geneva Convention prohibits individual or mass forcible transfers, regardless of their motive, while Article 46 of the Hague Convention of 1907 requires respect for private property and prohibits its confiscation. As a result, Palestinians living in occupied East Jerusalem, as well as the West Bank, should be protected from forced evictions of this nature. Indeed, the extensive destruction and appropriation of property is designated a “grave breach” by Article 147 of the Fourth Geneva Convention, such that Israel as an occupying power is specifically required to enact legislation to ensure effective penal sanctions for anyone committing the breach.

It is therefore extremely concerning that the use of the law to evict Palestinians has been legitimised in the Daqaq Nuha case, granting the Custodian, the Israeli courts, and the Attorney General with continued significant power to decide where forced eviction is permissible. It is to be hoped that when considering the case of the Ghaith-Sub Labans, and other families facing eviction, proper regard will be given to Israel’s obligations under international law.

Natalie Sedacca – LPHR Executive Committee

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