Israeli confiscation of ‘absentee’ Palestinian properties upheld by Supreme Court
“I do not see any reason to strike down the law and impede its use under all circumstances,” said the head of the seven-person panel, judge Asher Grunis, in his concluding remarks. He expressed hope however that the authorities would “avoid wherever possible to use the law.”
“In our opinion there may be rare situations where the law will be enacted on property in Jerusalem that had been owned by Arabs living in Judea and Samaria. Under those circumstances, the government would need to get the permission of the Attorney General before acting,” said Grunis.
The law was initially adopted following the Arab-Israeli war of 1948, and allowed Jews to “legally” repossess properties of Arabs who fled during the conflict, and were now stationed in “enemy territory.” The legislation was used to seize thousands of properties.
The law acquired a new twist in 1967, when Israel gained control of East Jerusalem after the Six-Day War. Now, a whole new group of Palestinians were suddenly under threat of having homes in that part of the city taken away, even if the “enemy territory” they resided in was the West Bank, also controlled by Israel.
The force of the law has seesawed over the years, as judges and governments have fought to suspend the ability of the government to repossess houses and give them to an official Custodian, who would use them for “the development of the country.”
Its application has always been selective and arbitrary – in recent years conservative Zionist groups have used the legislation to up the share of Jews living in Jerusalem.
Even Grunis admitted that in its current form it was not legally watertight.
“The absurdity of the working of this law, a soldier sent by the government to serve in the territories [West Bank], or an enemy county, could have his property declared as“absentee property,” said the judge.
Avigdor Feldman, a lawyer for multiple Palestinians, whose cases led to Supreme Court review, criticized the judges for admitting to issues with the law, but leaving it in place.
“The justices demonstrated a very formalistic approach. They determined that it is not proper, but have passed the buck to the courts, attorney general and the Custodian. They have asked to trust the generosity of the state not to make use of [the law]. That is running away from responsibility. It is clear that the law was created during a different situation and for other purposes, and is not appropriate for the present circumstances.”