Global Policy Forum

Israeli Aide Bars Policy of Seizing Arab Land


By Greg Myre

New York Times
February 2, 2005

Israel's attorney general on Tuesday ordered Prime Minister Ariel Sharon's government not to implement a policy decision permitting the seizure of East Jerusalem property owned by Palestinians living elsewhere in the West Bank. The attorney general, Menachem Mazuz, called the government's policy legally indefensible and also cited political considerations in his ruling. "This decision cannot stand," Mazuz said in a lengthy statement. He cited "many legal difficulties," including "Israel's obligations according to the rules of customary international law."

If the government had confiscated land, it could have inflamed passions on one of the most volatile issues in the Israeli-Palestinian conflict, the status of Jerusalem, which both sides claim as a capital. Last summer, the government quietly approved a measure saying it could take control of Palestinian land in East Jerusalem that falls under the 1950 Absentee Property Law. Previous Israeli governments have generally declined to invoke the law to seize Palestinian property in East Jerusalem, which Israel captured in the 1967 Mideast war and then annexed.

Palestinians and human rights groups charged that the government decision was closely connected to the building of Israel's separation barrier, which has drawn strong international criticism. Mazuz acknowledged the link. The government's decision "could also have serious international repercussions regarding the separation fence," Mazuz said. "The clear interest of the state of Israel is to prevent opening new fronts in the international arena in general and in the area of international law in particular." The Israeli government did not comment on the ruling.

Daniel Seidemann, an Israeli attorney representing Palestinian landowners threatened with the loss of their property, said, "The attorney general acted promptly and wisely and spared us from a disastrous situation." One of Seidemann's clients, Johnny Atik, has a house that sits in Bethlehem, but the three or so hectares, or eight acres, of olive trees in his backyard are part of Jerusalem, according to boundaries drawn by Israel. Israel has built its separation barrier through Atik's backyard, and he has been unable to tend to his olive trees or harvest them recently. The Israeli military sent Atik a letter in November saying his backyard now belonged to the Custodian of Absentee Properties in Israel.

The ruling Tuesday removes the threat that Israel will confiscate the olive grove and should also help Atik receive permission to work his land, Seidemann said. But he noted that the separation barrier still posed difficulties for Atik and other Palestinians. The government's decision on East Jerusalem was initiated by Natan Sharansky, the minister of Jerusalem affairs, at a June 22 session of his committee attended by just one other minister, Mazuz noted.

The two ministers approved the resolution despite objections by two Justice Ministry officials who appeared before the committee, Mazuz wrote. The resolution then received cabinet approval on July 8, but did not become public until the Haaretz newspaper broke the story two weeks ago. Sharansky described it as a "technical decision" to clarify the law and insisted it was not a "political decision." "I don't think any property belonging to any one Arab or Jew in East Jerusalem should be taken by the state," Sharansky said.

But Mazuz said Sharansky had exceeded his authority by issuing a new interpretation of a law that has been addressed in detail over several decades by Israeli legal authorities. The attorney general said he had only recently become aware of the government decision after his office began receiving complaints. Property rights have been an explosive issue since Israel's founding in 1948.

In the Israeli-Arab war that year, many Palestinian landowners fled or were driven from property that became part of Israel. Two years later, Israel passed the Absentee Property Law, which has allowed the state to seize thousands of homes and parcels of land owned by Palestinians. Israel has paid compensation in only a fraction of those cases. When Israel captured East Jerusalem in 1967 and annexed it, the same law theoretically applied. But Israeli governments declined to invoke it, noting that many of the landowners lived just a short distance away in other parts of the West Bank. In general, those Palestinians have had access to their East Jerusalem land.

Over the years, the Absentee Property Law has spawned the bizarre phrase, "present absentees," which Mazuz included in his decision. Recounting the history of the law, Mazuz wrote that West Bank residents owning land in nearby East Jerusalem "are in effect 'present absentees' whose rights to their property are negated because of the broad, technical formulation of the law." To take their property would be an "especially harsh result, because applying the law meant negating their property without compensation," he wrote.

In other developments Tuesday, Palestinians fired several more mortars at Jewish settlements in the Gaza Strip, but no one was hurt. Palestinian factions began firing the mortars on Monday after an 11-year-old Palestinian girl, Noran Deeb, was killed by a gunshot at her school in the southern Gaza town of Rafah. Palestinians have blamed Israeli troops, but Israel says its soldiers did not fire at the time the girl was shot. The Israeli defense minister, Shaul Mofaz, said the Palestinians would have to halt the mortar fire before Israel would hand over security control of several Palestinian cities in the West Bank. "An active operation by the Palestinian side is needed to stop the terrorist operations," Mofaz said.




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