The family featured in the first article by Lawyers for Palestinian Human Rights (LPHR) writes of its experience before it was actually evicted in the second.
Looking out of the window of the Ghaith-Sub Laban family’s house. Photo courtesy of the family.
The Absentee Property Law and Israel’s policies of forced evictions of Palestinians in East Jerusalem
By Natalie Sedacca, blog, Lawyers for Palestinian Human Rights (LPHR)
May 28, 2015
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).
See article below for family’s account before the eviction.
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.
Footnotes
1 http://www.nrc.no/arch/_img/9197263.pdf
2 http://ir-amim.org.il/sites/default/files/Absenteesagainsttheirwill.pdf
Natalie Sedacca is a member of the LPHR Executive Committee
My family is facing forced displacement
By Rafat Sub Laban, Al-Araby
April 21, 2015
Blog: The Ghaith-Sub Laban family’s house in the Old City of Jerusalem is a target of Israeli settlers who are trying to evict three generations of people from their home.
In the Old City of Jerusalem, a minute’s walk away from the Aqsa Mosque and the Western Wall is our house. My family has been living in the heart of the Old City of occupied East Jerusalem for over 60 years. But since September 2014, Israeli settlers have been trying to evict us following an eviction order they obtained from the Israeli Court.
My family leased their house in the Old City of Jerusalem in 1953 from the Jordanian government back Jordan ruled the West Bank. Nora, my mother, was born in the house in 1956 and has lived there ever since.
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We could be evicted at any time. The settlers have vowed they will have us out no matter what it takes. |
Today she still lives in this house with me, my father, Mustafa, and my brother and two sisters. My brothers wife lives there too along with Nora’s two grandchildren, aged 9 and 2.
Back in 1953, the Jordanian government labelled the house as “enemy property”, suggesting that the property was inhabited by a Jewish family prior to 1948. However, prior to 1948, the house was owned by a Palestinian family but was leased to – and not owned by – a Jewish family.
In 1950, Israel instituted a ‘Law of Absentee Property’ allowing the nascent state to confiscate the properties of Palestinians who had fled the 1948 war.
After the occupation and annexation of East Jerusalem in 1967, that law was also applied in occupied Jerusalem to all properties with owners who had fled in 1948. This included the Ghaith-Sub Laban house (ours). Since the early 1970s, they have been managed by the Israeli General Custodian of public and absentee property.
The properties left by Palestinians who fled or were forced to flee in 1948 were termed ‘absentee property’. While Palestinians are denied the ability to reclaim their properties, Israeli Jews are allowed to ‘reclaim’ any property they allegedly owned prior to 1948.
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| Nora Sub-Laban [Photo cpourtesy of the family] |
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Israeli Courts have issued dozens of eviction orders for Palestinian families due to such claims.
The Ghaith-Sub Laban family was no different/ They have been harassed and pressured since the 1970s by the Israeli authorities to give up their property. First, they were denied a permit to do necessary house maintenance that had been demanded by the Israeli authorities in the first place. The family was forced to temporarily relocate to another house as the house was in a hazardous condition.
Then, Israeli settlers took over all the other apartments in the building and evicted the remaining Palestinian neighbours. The family was even almost blocked from physically accessing the house, when the settlers who had taken over the house next door expanded their kitchen blocking the main entrance.
Following 25 years of legal battles, the family was eventually given a permit to do the necessary maintenance, including building a new entrance.
The family lived in relative peace until 2010, when the Israeli General Custodian granted ownership of the property to settlers affiliated with a right wing settler organization called Ateret Cohanim.
Ateret Cohanim has a declared aim of creating an Israeli Jewish majority in East Jerusalem and particularly in the Old City’s Muslim Quarter. Immediately after gaining ownership, the settlers petitioned the Israeli Court asking for the eviction of the family.
The settlers based their claim on the allegation that my family deserted the property long ago and has never lived in it. And despite the visually verifiable fact that the family holds a protected tenancy status and has lived in the house since 1953, the Israeli Court ruled in favour of the settlers and ordered the family evicted.
Since the court issued the eviction order in September 2014, Israeli settlers themselves have tried to evict the family three times. The first was in December 2014 when the settlers tried to forcefully occupy a storage room beneath the family’s apartment.
The second attempt was in February 2015, when the settlers arrived at the family’s doorstep asking them to leave the property. Nora’s 9-year-old grandson was home alone that day. He had missed school due to illness, but was no slouch that day. His yells and screams alerted neighbours who alerted activists and journalists.
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Nora’s grandson, 9, had to fend off settlers alone |
The settlers were forced to back off.
The third attempt took place on the 16 March. This time the settlers came escorted by 20 Israeli soldiers and policemen. Again the family managed to gather dozens of journalists and activists. However, the settlers were insistent this time.
The police almost broke through the main entrance to evict the family by force when the family’s lawyer called saying he had obtained a one-day temporary injunction with which the eviction was stopped.
That day the family had been prepared for the worst. Nora had packed some of her family’s memories and possessions in a bag; her wedding photo, university graduation photos of her daughter, pictures of her grandsons and many other old photos with years of memories.
Nora’s grandson packed some of his favourite toys and collectibles. The family was horrified by the idea of losing their home and becoming homeless.
My mother started crying hysterically when the police brought a ram to break through our door. The idea of losing her childhood home, where she was born and grew up, was just too much.
No one should face such an unjust situation. This is a forced displacement based on discriminatory laws and practices that violate international law and any and all human rights and humanitarian laws and principles out there.
The family is still facing the threat of eviction. They are currently waiting for an appeal in May, but they are expecting the settlers to attempt to evict them again.
We could be evicted at any time. The settlers have vowed they will have us out no matter what it takes.
My family, the Ghaith-Sub Laban family, has launched an online campaign on social media including a Facebook page “Stop Noras Eviction” as well as on twitter under the hashtag #StopNorasEviction. We have also launched an online petition on Avaaz which has gathered over 11,000 signatures from around the world.
Moreover, the family has appealed to several United Nations Special Rapporteurs asking them to take action and has succeeded in getting the attention of several diplomatic missions in Jerusalem. Several representatives from the European Union’s Office in Jerusalem, the British Consulate, The French Consulate, the Spanish Consulate and the Italian Consulate have visited the family and promised to take action.
A group of NGOs both in Palestine and abroad have recently issued a joint statement condemning the attempts to evict the family and Israel’s discriminatory policies of forced displacement which violate Israel’s obligations under international law.
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| Personal belongings of sentimental value are packed… just in case [Photos courtesy of the family] |
Note
Absentees’ Property Law, 1950:
from Sixteen Minutes to Palestine
This critical law replaced a previous absentee property law and formally defined Palestinians who had been away from their homes for any reason after the partition of Palestine as an “absentee”. The law is extensive, its primary objective being to include as many Palestinians as possible under this umbrella term. Under this law, “absentee” refers to any Palestinian land or property owner who maintained citizenship in a nearby Arab country or who was not physically present on his or her property upon adoption of the United Nations’ 1947 partition plan. Property rights belonging to these absentees were then transferred to the Israeli government. Bearing proof of ownership or not, Palestinians returning to their lands were expelled or detained and any construction was halted and demolished. In other words, if a Palestinian was not physically within the boundaries of his or her land on November 29, 1947, the day the partition plan went into effect, the land was considered forfeited. “Absentees” included Palestinians who had been prevented from returning to their homes after paramilitary forces attacked their villages, Palestinians who had lost their land to the aforementioned property laws working retroactively, and even Palestinians who had been in nearby towns visiting relatives or running errands at the moment this property census took place. Although these Palestinians were present, they were considered absent. Hence the legal categorization “present absentee”. It is estimated that upwards of 70% of Israel’s acquired, confiscated, and occupied land was gained through this and subsequent absentee laws.
Filed under: Jewish terrorism, Nazi Israel, Palestine | Tagged: Benjamin Netanyahu, Besieged Gaza Strip., Jewish terrorism, Jewish violence, The Zio-temporary entity | Comments Off on israel’s Absentee Property Law allows for property owned by Palestinians to be stolen by jewish terrorists (settlers)
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