The Application of the Absentee Property Law in East Jerusalem: CA 54/82 Levy v. ‘Afaneh (Judgment of February 19, 1986)

The Absentee Property Law, passed in 1950, is a pivotal statute in a series of legislative pieces that allowed Israel to take over the property of Palestinians who were expelled or fled during the war of 1948. It is a draconian law which severely interferes with the private property of persons deemed “absentees”.

The law put absentee property in the hands of a public agency instituted for this specific purpose – the Custodian of Absentee Property. The title is misleading as it was clear from the very beginning that safeguarding or protecting property belonging to absentees was not a main objective of this law, rather the main considerations behind it were Israel’s own interests, be it using the property for receiving new immigrants into the country as part of the country’s development, or holding on to the property for use as a bargaining chip in future negotiations. In practice, transferring the property to the hands of the Custodian paved the way to transferring ownership to the state and dispossessing the original owners.

Under the law, thousands of square kilometers of land, along with houses and other buildings owned by individuals who were deemed absentees prior to the war were handed over to the Custodian. This property was subsequently transferred to public and private bodies through the Development Authority,[1] a special agency which was established for this purpose and used as a way of “laundering” the transfer of the assets.

Who Are the Absentees?

The definition of absentees is extremely broad. It covers, among others, anyone who was visiting “enemy states”, enumerated in the Absentee Property Law (Lebanon, Egypt, Syria, Saudi Arabia, Jordan (including the West Bank), Iraq or Yemen), beginning on November 29, 1947 and until the state of emergency declared in May 1948 is revoked (the state of emergency has not been revoked to date and is still in effect). Additionally, anyone who had legal status in those countries at the time, or received legal status in them is also considered an absentee. Even people who temporarily left their usual place of residence within Mandatory Palestine to another locality which, albeit inside Mandatory Palestine, was held by elements who were fighting Israel at the time, and later returned to their usual place of residence, are considered absentees as well, and their property was handed over to the Custodian under the law.[2]

How is a 1950 Law Relevant to 1967-Occupied East Jerusalem?

After the war of 1967, during which Israel conquered different areas, including the West Bank, it annexed some parts of the West Bank and applied Israeli law to this area. The annexed part of the West Bank came to be known as “East Jerusalem”. The application of Israeli law to the annexed area meant the Absentee Property Law was applied to East Jerusalem in its entirety. This, in turn, meant that almost all of the property in East Jerusalem was considered absentee property from that day forward, as, according to Israeli law, this was property located inside Israel (post annexation), whose owners had Jordanian citizenship. To dim this sweeping effect, the Legal and Administrative Procedure Law of 1970 excluded anyone who was a resident of and present in annexed East Jerusalem at the time of the annexation from the definition of absentee.[3] Still, according to the law, this exemption applied only to properties located in the annexed area. In other words, residents of East Jerusalem would still be deemed absentees with respect to property they owned within the Green Line.

Additionally, Palestinians who resided in one of the enemy states enumerated in the Absentee Property Law, as well as those who moved to an enemy state or received citizenship in an enemy state, would also be considered absentees and the law would apply to their property. This arrangement gave rise to the following question: Is property located in East Jerusalem, which, at the time of annexation, was owned by persons who resided in the Occupied Palestinian Territories (OPT) considered “absentee property”? This is the question the Supreme Court grappled with in Levy v. ‘Afaneh.

The appellants in the case, Edmund Levy and Zeev Golan sought to have some property registered under their names. The property in question was registered under the names of two residents of the West Bank, Mahmoud ‘Afaneh and Othman Sharif, whose estates were named respondents 1 and 2 in the appeal (and counter appellants). The property is located in East Jerusalem, but the owners resided in the non-annexed part of the West Bank after 1967. Levy and Golan contended that the registered owner sold the property to a man by the name of Hashem al-Sayed in 1965 and that he sold it to them. The respondents argued that the documents presented to substantiate the registration were forgeries. The District Court accepted the argument and ruled the property could not be registered under the names of Levy and Golan, but that, while the property is registered under the respondents’ names, a note should be entered into the land registry that the property is given over to the Custodian of Absentee property, since it was located inside the annexed area, while the owners were residents of the West Bank.

The Supreme Court (Justice Halima, with Justices Ben-Porat and Barak concurring), accepted the rulings made by the District Court and dismissed the appeals submitted by both parties. On the issue of absenteeism, the Supreme Court referenced the Absentee Property Law, according to which an “absentee” includes, among others, anyone who, at the relevant time (beginning in June 1967 in the case of property located in East Jerusalem) was “in any part of [Mandatory Palestine] that is outside the territory of Israel”. The Court noted that the phrase “territory of Israel” in Section 1(i) of the Law means “the area in which the law of the State of Israel applies”.[4]

Thus, given that the property is located in East Jerusalem, where Israeli law applies, while the late owners had lived in “any part of [Mandatory Palestine] that is outside the territory of Israel” and given that the Legal and Administrative Procedure Law did not exclude the latter from the Absentee Property Law, it must be ruled that the respondents were, in fact, absentees, and as a result an annotation should be made in the land registry that the property in question is transferred to the Custodian of Absentee Property.

Just like that. Plain and simple.

What the court did in this case, was to cross the provisions of the Absentee Property Law with the provisions of the Legal and Administrative Procedure Law, which led it to the conclusion that the respondents were absentees. On the face of it, given the wording of the law, this seems like a foregone conclusion. However, it completely disregards the historical context and, well, common sense. Even if the draconian provisions of the Absentee Property Law could be justified, the difference between the circumstances that prevailed when it was enacted, and those prevailing in 1967 cannot be overlooked. Unlike the absentees of 1948, the respondents in the case discussed here never committed an act of absenteeism. They never moved (or: they were never expelled) beyond enemy lines. In fact, they stayed put. They and their property came under Israel’s control in 1967. Their “absenteeism” is simply a technicality – stemming entirely from the fact that Israel decided to annex one part of the West Bank and leave the rest under military rule.

It appears that these facts led Justice Ben-Port to comment that “despite the fact that the counter-appellants may be regarded as ‘absentees’…. a question may arise as to whether the exercise of the authority under the circumstances of this case was appropriate”.[5] Though this comment attempts to illustrate, even if to a small degree, how problematic the issue is, without a clear practical directive, it fails to mitigate the serious findings made by the court regarding the applicability of the Absentee Property Law. In another time and another place, the state would have, perhaps, heeded the honorable justice’s comment and changed its policy. But, as we see below, the Israeli government of the time had other plans.

… Meanwhile in East Jerusalem

In 1977, after a decade in which the Absentee Property Law was scarcely used in East Jerusalem, policy took a dramatic shift. In December of that year, after the Begin government was sworn in, a resolution that effectively enabled the seizure of nearly all assets in East Jerusalem that met the broad legal definition of “absentee property” was adopted. The decision paved the way for extensive use of the Absentee Property Law, a practice that was not brought to the public’s attention until 1992, when an inter-ministerial committee headed by Adv. Chaim Klugman, then Executive Director of the Ministry of Justice, was established. The committee was tasked with reviewing and consolidating “all figures related to homes in East Jerusalem leased, rented or bought for private entities, charities or individuals, using state funds, or with any other assistance from the state and its agencies”. The report, submitted to the government on September 13, 1992, listed 68 properties that had been transferred, one way or another, with the assistance of the State of Israel, to Jewish organizations or private individuals in East Jerusalem. The state had invested vast amounts of money in these properties, be it for purchasing or renovating them, paying realtor and lawyer fees and more. Many of these property transfers were made possible after the Custodian declared their owners absentees.

With respect to the Custodian’s involvement, the committee noted that properties were declared absentee property based on information provided to the Custodian by the same settler organizations and on dubious affidavits given by Palestinian residents to these organizations’ lawyers. The committee determined that:

The authenticity of the affidavits was never examined by the Custodian. The Custodian never visited the properties, never examined them, their worth and whether these actions [taking them over, Y.B.] involves evacuating families, and never allowed any other claimants to make a claim or submit objections… Some of the affidavits regarding different properties were given by a single affiant, without the Custodian making elementary inquiries regarding the identity of said affiant, his reliability, how he contacted the lawyer or the organization, the source of his knowledge or what he received in return for his services”.[6]

The Levy v. ‘Afaneh decision must be considered in the context of these late developments in the use of the law in East Jerusalem. The judgment, which was issued at a time when the Custodian took over many properties in East Jerusalem, effectively provided the legal stamp of approval for the dispossession practices described above (albeit not all methods used). Another judgment, in the same matter, given in 1994, continued the trend that saw no impediment to applying the law to these types of properties.[7]

Similarly to the judgment in Levy v. ‘Afaneh, the Golan judgment also seemed to accelerate the use of the law in East Jerusalem. Though the government decided to return to the policy practiced prior to December 1977 after the Klugman report was submitted, it appears that no real steps were taken to prevent the practices uncovered in the report, and most of the decisions made by the government after the report was submitted, were never implemented. Properties that were taken away from their rightful owners were not returned and no monitoring and control mechanisms to oversee the conduct of the Custodian were put in place. In addition, in 1997, the restrictions placed on the use of the law began to be gradually loosened. This process peaked in June 2004, when, in a session held by a ministerial committee with the participation of only two ministers – Natan Sharansky and Zvulun Orlev, a decision was made to “clarify, in order to remove any doubt, the Custodian of Absentee Property has all powers granted under Section 19 of the Absentee Property Law 5710-1950, including the transfer, sale or lease of a property in East Jerusalem to the Development Authority”.[8] Though the Attorney General at the time, Meni Mazuz, opposed this decision, the law is still used in East Jerusalem to this day.

Was a Different Decision Possible?

Was it possible to rule that not only should the law not be used in East Jerusalem, the law does not apply there at all? We believe so.

In January 2006, the District Court delivered its judgment in the matter of Daqaq Nuha,[9] which also concerned the status of East Jerusalem properties owned by residents of the OPT. In his judgment, Justice Okun interprets the law such that it applies only when the property in question is owned, or held, by a person who is under the control of one of the enemy states enumerated in the law. Since the West Bank has been under the effective control of Israel since 1967, Israel cannot consider it to be under a hostile regime and it would be inconceivable to apply the law in these circumstances. In Okun’s own words:

Applying the [Absentee, Y.B.] Property Law in this state of affairs could create a twilight zone, where the territory is located outside Israel, so that Israel can “seize rights” there, while the residents, who are outside Israel, are not deemed residents of another, hostile, political entity. This is a type of legal manoeuvre that has no basis in any sort of reality, other than orders for the annexation of certain areas. This is legalese without law. For the residents, nothing has changed. The residents of these territories were under the same effective control and subject to the rule of the same law or to the rule of a regime operating under the same law.[10]

The rule set in the Daqaq Nuha case was repeated by the Jerusalem District Court in a judgment issued in May 2007. On the other hand, two other judgments issued by the Jerusalem District Court accepted the Custodian’s position that the law should apply in the circumstances. Appeals against all four judgments are pending before the Supreme Court at the time of writing.[11]

Adv. Yotam Ben Hillel

The author is a lawyer and legal researcher on human rights in the Occupied Palestinian Territories. Formerly on staff at HaMoked: Center for the Defence of the Individual.