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The Absentee Property Law and Its Implementation in East Jerusalem a Legal Guide and Analysis

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The Absentee Property Law and Its Implementation in East Jerusalem a Legal Guide and Analysis NORWEGIAN REFUGEE COUNCIL The Absentee Property Law and its Implementation in East Jerusalem A Legal Guide and Analysis May 2013 May 2013 Written by: Adv. Yotam Ben-Hillel Consulting legal advisor: Adv. Sami Ershied Language editor: Risa Zoll Hebrew-English translations: Al-Kilani Legal Translation, Training & Management Co. Cover photo: The Cliff Hotel, which was declared “absentee property”, and its owner Ali Ayad. (Photo by: Mohammad Haddad, 2013). This publication has been produced with the financial assistance of the Norwegian Ministry of Foreign Affairs. The contents of this publication are the sole responsibility of the authors and can under no circumstances be regarded as reflecting the position or the official opinion of the Norwegian Ministry of Foreign Affairs. The Norwegian Refugee Council (NRC) is an independent, international humanitarian non-governmental organisation that provides assistance, protection and durable solutions to refugees and internally displaced persons worldwide. The author wishes to thank Adv. Talia Sasson, Adv. Daniel Seidmann and Adv. Raphael Shilhav for their insightful comments during the preparation of this study. 3 Table of Contents 1. Introduction ...................................................................................................... 8 2. Background on the Absentee Property Law .................................................. 9 3. Provisions of the Absentee Property Law .................................................... 14 3.1 Definitions ..................................................................................................................... 14 3.1.1 Who is an absentee? ................................................................................................ 14 3.1.2 What is absentee property? ..................................................................................... 17 3.1.3 Who is the Custodian of Absentee Property? ......................................................... 20 3.2 Transfer of absentee property to the Custodian and declaration of absentee status ............................................................................................................................. 20 3.2.1 General .................................................................................................................... 20 3.2.2 Property status after vesting in the Custodian ......................................................... 21 3.2.3 Declaration of a person or property as absentee ..................................................... 22 3.3 Property management and transactions .................................................................... 23 3.3.1 General .................................................................................................................... 23 3.3.2 Transactions conducted by the Custodian ............................................................... 24 3.4 Release of absentee property ....................................................................................... 26 3.4.1 Custodian power to release vested property ........................................................... 26 3.4.2 Criteria for releasing the property ........................................................................... 27 3.4.3 Release of property under Article 27 of the Absentee Property Law ..................... 28 3.5 Compensation ............................................................................................................... 30 3.5.1 The Absentee Property (Compensation) Law of 1973 ........................................... 30 3.5.2 Article 18 of the Compensation Law – cancellation of the opportunity to apply for releasing absentee property ..................................................................... 31 3.6 Interpretation of the Absentee Property Law in light of Basic Law: Human Dignity and Liberty ..................................................................................................... 32 4 4. Utilization of the Absentee Property Law in East Jerusalem .................... 35 4.1 Application of the Law to East Jerusalem post-annexation ..................................... 35 4.1.1 The Law and Administration Procedures Law of 1970 .......................................... 35 4.1.2 Application of the 1970 Law to Israeli property in East Jerusalem ........................ 39 4.1.3 Of the absentees in East Jerusalem ......................................................................... 42 4.1.4 Cabinet resolutions in the matter of the Absentee Property Law's application ............................................................................................................................. 43 4.2 Actual use of the Absentee Property Law in East Jerusalem .................................. 46 4.2.1 Settler takeover of properties with Custodian assistance ........................................ 46 4.2.2 Custodian involvement in transferring property rights ........................................... 56 4.2.3 Custodian involvement in licensing and planning procedures ............................... 58 4.2.4 Use of the Absentee Property Law in the course of construction of the Wall in the West Bank .................................................................................................... 61 4.3 The legality of applying the Absentee Property Law to Palestinian residents of the West Bank who own possessions in East Jerusalem ...................................... 65 4.3.1 The position of Israel’s Cabinets and Attorneys General ....................................... 65 4.3.2 The position of Israel’s courts ................................................................................. 66 5. International Law Perspective ...................................................................... 74 5.1 The Annexation of East Jerusalem ............................................................................. 74 5.2 The use of Absentee Property Law under the law of occupation ............................ 75 5.2.1 International humanitarian law and its application to the occupied Palestinian territory ................................................................................................ 75 5.2.2 Annexation and occupation ..................................................................................... 78 5.2.3 The right to property under the laws of occupation ................................................ 79 5.2.4 Absentee property under the laws of occupation .................................................... 82 5.2.5 Applying the Absentee Property Law to property in East Jerusalem ..................... 83 5.3 The use of Absentee Property Law under human rights law ................................... 85 5.3.1 International human rights law and its application to the occupied Palestinian territory ................................................................................................ 85 5 5.3.2 The right to property under international human rights law ................................... 87 5.3.3 The application of the Absentee Property Law in East Jerusalem in light of international human rights law ............................................................................... 88 6. Conclusion ....................................................................................................... 90 6.1 The problematic application of the Absentee Property Law to East Jerusalem ................................................................................................................................. 90 6.2 The role of the Israeli courts ....................................................................................... 90 6.3 The usage of the Absentee Property Law in East Jerusalem – the broader context ........................................................................................................................... 91 6 Green Line Old City Municipal Boundary Barrier- Completed Route of the Barrier- Planned Checkpoint/ Terminal Palestinian Built-up Area Israeli Built-up area Beyond the Green Line Industrial Park E-1 Master Plan 1. Introduction The Absentee Property Law (APL) has been applied to East Jerusalem since its annexation to Israel in 1967. This law has significant ramifications for the issue of property ownership in East Jerusalem. In addition to infringing property rights for those whose property was vested in the Israeli authorities, it has many other negative implications. As this paper describes in detail, the application of the APL in East Jerusalem affects many transactions involving transfer of property rights in East Jerusalem, and imposes severe limitations on the residents of East Jerusalem seeking to obtain building permits and initiate planning processes. Moreover, the APL has been used over the years as a central means by which Palestinian-owned property in East Jerusalem is transferred to settler organisations. The APL was enacted in the wake of the 1948 War to facilitate the transfer of property of Palestinian refugees to the Israeli authorities. The provisions of the APL were drafted in a sweeping manner, and set forth broad definitions regarding who is considered “absentee” and what is considered “absentee property”. The APL also granted many powers to the Custodian of Absentee Property, including wide discretion in the question of whether to release absentee property, while the rights of the absentees themselves were extremely limited. In order to understand the APL's extensive reach, we
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