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Johnny Atik. "No one ever told me that the olives are in the territory of Jerusalem." (Nir Kafri)
Last update - 00:00 20/01/2005
Land lords
By Meron Rapaport
As a result of a secret Israeli government decision, thousands of Palestinians living in the West Bank who own land or homes in East Jerusalem lost all rights to their holdings. And there are already plans to build on the expropriated land.

On July 8, 2004, the cabinet met and adopted resolutions that are not mentioned on the official Web site of the Prime Minister's Office, which documents "government decisions that were published." Nevertheless, the meeting took place and at least one decision was made there. The prime minister's media adviser said this week that the July 8 meeting gave "validity of a government decision" to a resolution passed on June 22, 2004, by the ministerial committee for Jerusalem affairs, which in turn was adopted "with the concurrence" of the attorney general after being transmitted to the prime minister and to the attorney general himself.

We don't know for sure what refreshments were served at all these meetings - most likely juice and bourekas. But we now know exactly what was distributed: Palestinian property in East Jerusalem; or, more precisely, the assets that residents of the West Bank hold in East Jerusalem. How much property? One guess is as good as another.

"Thousands of dunams, maybe more," says a senior member of the state judicial system who is handling the matter (four dunams equals one acre). "It might be as much as half the property in East Jerusalem," says Meron Benvenisti, who served as adviser on Arab affairs to former Jerusalem major Teddy Kollek immediately after the eastern city's conquest in 1967.

In short, thousands, perhaps tens of thousands of Palestinians lost property worth hundreds of millions of dollars. The State of Israel became the official owner of all these vast holdings - without the owners being able to appeal and without being entitled to so much as one shekel in compensation. Because in the eyes of the government of Israel, these flesh-and-blood people, who live in Bethlehem or Beit Sahur or Ramallah and have olive groves or houses or land within the municipal boundaries of Jerusalem, do not exist. They are absentees.

The language of the ministerial committee's resolution, which was afterward validated as a government decision, is dry and bureaucratic. It does "no more" than expand the powers of the Custodian of Absentee Property: "The ministerial committee resolved to make it clear that the powers vested in the Custodian shall be valid also for assets in East Jerusalem." That's all. But there is much more here than meets the eye.

The Absentee Property Law (sometimes known as the Abandoned Property Law) was enacted in 1950. It defines an "absentee" as a person who "at any time" in the period between November 29, 1947, and September 1, 1948, "was in any part of the Land of Israel that is outside the territory of Israel" (meaning the West Bank or the Gaza Strip) or in other Arab states. The law stipulates that the property of such an absentee would be transferred to the Custodian of Absentee Property, with no possibility of appeal or compensation. From there, by means of another law, the property was moved along, so that effectively the assets that were left behind by Palestinian refugees in 1948 (and also some of the property of Palestinians who were now citizens of Israel, the famous "present absentees") were "transferred" to the State of Israel.

"This law was an indirect means for the redemption of the land," says Shimon Dolan, until recently the head of the civil department in the State Prosecutor's Office (see box). In early June 1967 Israel conquered the West Bank, and already by June 28, a little more than two weeks after the end of the fighting, the government decided to apply Israeli law to East Jerusalem.

The term "East Jerusalem" can be misleading. Jordanian Jerusalem (1948-1967) covered an area of 38 square kilometers and included the Old City and the adjacent neighborhoods. The "eastern Jerusalem" that Israel annexed covers 108 square kilometers and includes 28 villages and towns that formerly were not part of the city. The boundaries of the new Jerusalem were drawn with a pretty crude hand. "A detailed map was not drawn," explains Amir Cheshin, the adviser on Arab affairs to the mayor of Jerusalem from 1984 to 1994. "We drew coordinates on a map and then connected them with lines." Adds Meron Benvenisti, who at the time worked closely with Kollek in this sphere: "The maps were not accurate. There were buildings that did not exist on the maps, so we simply didn't mark them and we did not count those people as residing in Jerusalem."

The new absentees

The application of Israeli law to the eastern part of the city meant that the Absentee Property Law was also in effect there. However, this presented a problem. Under the law, residents of East Jerusalem, most of whom were not in "the territory of Israel" during the War of Independence, could now be considered absentees and thus lose all their property. At first, indeed, some attempts were made to take advantage of the language of the law and take over Arab-owned property in East Jerusalem informally. However, such attempts encountered opposition from no other than the government of Israel.

"There was a desire not to repeat what happened in 1948, to reduce to the minimum the damages of the annexation to Israel, to try to create coexistence," Benvenisti notes. The law was changed so that the status of absentee would not apply to residents of East Jerusalem. As for West Bank residents who had assets in unified Jerusalem (and there were many of them; for example, some 15,000 dunams were taken from Bethlehem alone and annexed to the expanded municipal area of Jerusalem), they remained in a gray area. Under the letter of the law they were considered absentees. The threat of the Custodian was ever-present and they could not register their rights in the Land Registry (the tabu; this is one of the reasons that the proportion of registered assets in East Jerusalem is very low compared to the situation in Israel), but in practice this did not affect their ownership of the property.

Meir Shamgar, then the attorney general and years later the president of the Supreme Court, issued a directive at the time according to which residents of the West Bank - "people who can come to Jerusalem at any moment and attest that they exist and claim their property" - would not be considered absentees in practice. "Immovable property [in Jerusalem] belonging to permanent residents of Judea and Samaria ... shall be released to them," the directive stated. It was authorized by the justice minister at the time, Yaakov Shimshon Shapira, who also headed the ministerial committee for Jerusalem affairs. It is this directive, which, after 37 years during which the Absentee Property Law was not implemented in Jerusalem (with rare exceptions), was quietly rescinded in a cabinet meeting half a year ago.

Johnny Atik does not yet know that the Israeli cabinet took the trouble to hold a special meeting in order to dispossess him of his olive trees. For many generations, his family, one of the most venerable and most distinguished in Bethlehem, has worked the olive grove on a hill that faces north, in the direction of the post-1967 Jerusalem neighborhood of Armon Hanatziv (East Talpiot). Atik has a handsome three-story stone house in Beit Jala, nestled in what could pass for a splendid neighborhood of villas in Jerusalem. Parked in the yard is a small tractor. Not a terrain vehicle, but a genuine tractor, suited to work in the grove.

However, Atik has nowhere to take his tractor. Forty of the olive trees next to his house were uprooted when the separation fence was built, and now it's the fence that abuts the family home. Another 150 trees remained on the other side of the barrier, the Israeli side.

When construction of the fence began, Atik, through his lawyer, Daniel Seidemann, asked the military authorities to reroute the barrier so that it would not separate him from his trees. That request was denied, as expected, but the army acceded very courteously to his other requests. "Trees that will be uprooted from Mr. Atik's plots of land will be moved in accordance with his request," Captain Gil Limon, assistant to the Judea and Samaria legal adviser, informed attorney Seidemann in writing in July 2002. "After the fence is in place, a permit will be issued to Mr. Atik for passage of the barrier so that he will be able to get to the areas he owns, which will be north of the barrier, in order to go to work them."

In the meantime, the fence was erected, but the permit that would make it possible for Atik to access his land did not arrive. Attorney Seidemann made request after request, for Atik and for other Bethlehem families who found themselves in a similar situation, but to no avail. Finally, in August 2004, there was a response. "The land no longer belongs to them, but is being placed in the possession of the Custodian of Absentee Property," a letter from the Israel Defense Forces to Seidemann stated.

Annexed to the letter was a document authored by Effi Lior, coordinator of absentee property in the Finance Ministry. "Residents of the territories," Lior stated, "are absentees with regard to property that was previously in their possession and today lies in the area of jurisdiction of the State of Israel ... Those properties were placed in the possession of the Custodian of Absentee Property from the moment Israeli law applied to them, such that their former owners, who are still registered as the owners of said properties, no longer hold any rights to them."

"No one ever told me that the olives are in the territory of Jerusalem. I have a land registration from the Turks for that land," says Atik, who became an absentee at a distance of 100 meters from his olive trees. "We were never arrested while working the trees, no one ever gave us trouble, not the Border Police and not anyone else. It was a good living. I worked only on that land, I have no other profession, only a farmer. Now I can't do anything. I don't accept it, but I have no hope."

The people live here

Not far from there, in the West Bank town of Beit Jala, across the way from the southern Jerusalem neighborhood of Gilo, 10 landowners with similar stories are meeting. The atmosphere is calm, perhaps because of the cold, perhaps because of the bourgeois character of most of the speakers, but the situation is no less harsh. In their name and in the name of dozens of other landowners, attorney Mohammed Dahla requested that the fence be rerouted so that they could access their land. He received an identical letter from Effi Lior: "The former owners, residents of Beit Jala, no longer hold any rights in their properties," which have been placed in the possession of the Custodian.

"I have lands and I also have a house in Beit Safafa," says Nadr Abu Gatas. "I pay property tax to the Jerusalem Municipality on the house, and I went to my land all these years without any problems. When the municipality wanted to build roads on my territories, they collected money from us. We weren't absentees then. The people are living here, not in America. They are not dead."

Ibrahim Abu Hadaba has olive trees below the Cremisan Monastery, in the valley between Gilo and the settlement of Har Gilo. He is no longer allowed access to his trees and recently discovered that he, too, is an absentee. The state is apparently already utilizing his absentee status. In the past few weeks, he relates, tractors have started to level his land. He received no notification and was prohibited - "with dogs and patrols" - from approaching the area.

"I have seven plots in an excellent state, olives and grapes," says Issa Haliliya. He looks like a person who will preserve everything in an excellent state. A neatly trimmed mustache, elegant English. "I was a tourist guide," he says, "but for the past four years a maximum of 10 tourists a day have come to Bethlehem. I now make my living from my trees. What they did to me is legalized theft, legalized robbery."

The estimate in Beit Jala is that at least 4,000 dunams of good farmland now lies on the "Jerusalem" side of the fence. The livelihood of about 200 families - 1,000 people - depended on those lands. Atik says that in his region alone, in northern Bethlehem, 2,000 dunams of farmland are now on the wrong side of the fence. Judging by the view from his house, he is not exaggerating: the slopes of the hill - opposite the new Jewish neighborhood of Har Homa - are covered with olive trees.

Benvenisti relates that he and mayor Kollek were aware of the possibility of invoking the Absentee Property Law in east Jerusalem. "But there was a discussion and it was decided not to make use of it." Amir Cheshin describes a similar atmosphere. Kollek, he says, did not oppose the establishment of the new Jewish neighborhoods, such as Neve Yaakov and Pisgat Ze'ev. But not wanting to generate friction between Jews and Arabs, he declined to apply the law. "I was in a state of glorious naivete that the law would not be invoked," he says.

In the early 1990s, Cheshin discovered that he had indeed been naive. The Housing Ministry, then under Ariel Sharon, worked hard to seize control of property in the Old City and in the adjacent neighborhood of Silwan by declaring them absentee property. The suspicion arose that some of the transactions were not legal; an examination committee, headed by the director general of the Justice Ministry, Haim Klugman, found numerous flaws. Absentee status was assigned after the Jewish associations involved obtained affidavits according to which the owners of the buildings in question were absentees. According to the committee, however, "the veracity of the affidavits was never examined by the Custodian ... The Custodian did not visit the area and did not see the giver of the affidavit, [but] accorded the property absentee status."

The findings of the committee made Kollek more determined than ever not to invoke the law. A summary of a meeting he held with the prime minister, Yitzhak Rabin, in August 1993, stated: "The prime minister agreed that no use will be made of absenteeism to evacuate permanent tenants from the eastern city." The state attorney at the time, Dorit Beinisch (now a Supreme Court justice), was supposed to draw up a document in this spirit; none was issued. There was even talk of amending the law so that residents of the territories would not be considered absentees in relation to East Jerusalem.

Behind the security claim

What brought about the change in the government's position last July? The Prime Minister's Office declined to provide a direct explanation. A senior figure in the judicial system, who is involved in setting policy in this sphere, explains that the decision to apply the Absentee Property Law in East Jerusalem is connected to the building of the fence. "The property of these people was always considered absentee property, but as long as there was no fence these people could access their property and from their point of view everything was all right. The fence is starting to enforce all kinds of laws, such as the Absentee Property Law or the Entry into Israel Law, according to which residents of the territories are not allowed to enter Jerusalem."

The rationale, as usual, is security-based. "The fence is the result of terrorism, of 130 people killed in a month," the senior official says. "And when one builds a fence, all kinds of situations are created. True, it's not fair that a person becomes an absentee, because his attachment to his land was severed through no fault of his own. But morality is one thing, and what our laws stipulate is another thing."

According to this official, one of the concerns is that if residents of the territories are permitted to own land in Jerusalem, it may call into question the Absentee Property Law in the whole of Israel. But there is no intention to change the law or to award compensation. "That could have enormous consequences, it will go back to the whole refugee question." The solution may come in the form of a limited right to enter the area of Jerusalem, though that has not yet been finalized, either.

Shalom Goldstein, who was the adviser on Arab affairs to the mayor of Jerusalem from 1996 until two months ago, also believes that the July decision about the law is related to the fence. He just doesn't understand exactly why it was necessary. From his point of view, the residents of the West Bank were always absentees. "The argument made by the Palestinians - that they worked the land for all these years and so it is wrong to separate them from it - is no argument at all," Goldstein, a former army man, says. "The basic situation is that they are absentees, they are the subjects of a different entity, and it is a blunder by the State of Israel that it did not enforce the law all these years. It is preferable for the State of Israel to take control of the absentees' property than for all the Arab criminals who operate in East Jerusalem to plunder it. It's also preferable for the landowners for the state to take the land and take care of it, rather than some criminal taking it."

According to Goldstein, there is a widespread phenomenon of criminals in East Jerusalem who plunder land from their Arab neighbors by taking advantage of the fact that they are absentees. Still, even Goldstein confirms that the state did not intervene too much and did not bother to register in its name all the "absentees' property," even though it was in possession of the land registries and could have taken action. He cites "criminal negligence" and lack of budget as the reasons for the government's inaction. Not a political reason.

Others, though, believe that it is not the fence alone that underlies the new policy. Other considerations, such as expanding the Jewish neighborhoods, cutting off Jerusalem's Arab sections from the surrounding Palestinian communities, and creating continuity with the settlements of the Etzion Bloc, are also connected to the matter. As well as straightforward considerations of greed. The facts on the ground demonstrate that these contentions are not unfounded.

Take the case of Walaja, for example. This village, which lies in southwest Jerusalem, south of the railway tracks, is half within the municipal area of Jerusalem and half within the West Bank. For many years, relates attorney Eitan Peleg, no one noticed that part of the village belongs to Jerusalem. The residents received services in Bethlehem, and none from the Jerusalem Municipality. The village simply did not appear on the 1967 maps, and the residents registered in Bethlehem.

In the 1980s the authorities "discovered" that half of Walaja, about 80 houses, are actually in Jerusalem. Nevertheless, the residents kept their West Bank ID cards. Of late they have been suffering badly because of their Kafka-esque status - people whose homes are in Israel but do not have Israeli citizenship. The Border Police make the rounds every once in a while, and in several instances have arrested people in their homes for being "illegally present." Even the school bus was confiscated because it carried "illegally present" people, namely the children of Walaja, to school in Beit Jala.

The fence is planned to pass next to the village houses, and the "Israeli" part will remain on the Palestinian side of the fence. This, though, is not stopping the Interior Ministry from threatening to demolish houses there on the grounds that they were built without an Israeli permit (four houses were demolished on Monday of this week). The village lands will remain on the Israeli, Jerusalem, side. Attorney Peleg met with Colonel (res.) Danny Tirza, the Defense Ministry official in charge of the fence. "How will they get to their lands?" Peleg asked him. According to Peleg, Tirza replied, "They will not get to them. These are not their lands, they are absentee property." "It's the law of robbers' property," Peleg, a former member of the security forces, shot back.

Residents of Walaja say that 10,000 dunams will be on the other side of the fence, between the village and the Jerusalem Biblical Zoo and the Cremisan monastery. And someone has their eye on the land. Reches Eshkol, an architectural firm, plans to build a huge neighborhood there - 13,000 residential units on 3,000 dunams - which will "envelope" Walaja from the north and the west. Architect Claude Rosenkovitz, who is drawing up a master plan for Walaja, relates that the architects' office told him the plan to build the neighborhood is coordinated with the Housing Ministry, although the ministry said it had no knowledge of the matter.

Who owns the land? Jewish land merchants say they bought it, but attorney Peleg and the residents of Walaja are in no doubt. At least part of the land of the new neighborhood will be "absentees' land" of Walaja.

Extensive construction plans

Things are clearer at Khirbet Mazmuriya, a low hill that "invites building" in the southeast corner of Jerusalem, opposite the large village of Beit Sahur. The Jerusalem Municipality's recently published draft master plan shows a future residential neighborhood at the site. Although the plan does not state explicitly that it will be a Jewish neighborhood with several thousand units, it's obvious to everyone that this is the intention - the eastern continuation of Har Homa. Another thing that is clear here is that the land belongs to residents of Beit Sahur. In fact, in the late 1990s they almost succeeded in getting a permit from the Jerusalem Municipality to build there.

How will a Jewish neighborhood be built on their land? Sources in the construction industry say they were explicitly told by officials of the Housing Ministry that the lands of Khirbet Mazmuriya are absentees' property and can be built on. The Jerusalem master plan also shows another neighborhood, west of Har Homa, and the extension of the Gilo neighborhood toward Beit Jala. Is the intention to make use of absentees' lands there, too?

The senior official from the judicial system maintains that there is no connection between the judicial declaration of absentee status and the building plans. Benvenisti takes a different view: "This is an attempt to connect Efrat [the Etzion Bloc town] to Jerusalem, to connect Gilo to the Etzion Bloc," he says. The "problem" of the Palestinian landowners is that this is good farmland, which cannot be declared state lands, as was done with the "rocky" lands on which the settlements in the West Bank were built. Consequently, Benvenisti explains, a trick had to be found by which to transfer the land to the state, and this was done by means of the Absentee Property Law. "The selectivity makes it despicable, draconian and even more terrible. It's robbery."

The criticism of Shimon Dolan, the former State Prosecutor's Office official, is more moderate but nevertheless unmistakable. "It is a hard law and it raises questions about the purpose that underlay it at the time of the state's establishment and whether its formulation is still valid today," he says. "It's problematic when one pulls a magic formula out of the closet. People who had a house in Jerusalem are losing it because a 55-year-old law was suddenly [invoked]."

Attorney Seidemann intends to go all the way to the High Court of Justice and to argue that if the law is being applied to residents of Beit Jala, then it must also be applied to residents of Efrat who have apartments in Ramat Gan or Tel Aviv, and confiscate them, too. Other lawyers are also planning to go to court. Only then will it be possible to find out whether the fact that Juni Atik and his friends worked their land for the past 37 years, whether the fact that the State of Israel reached Juni Atik in 1967 and not vice versa, will work in his favor and transform him back from "absent" to present.

Present but absent

To date, one place is known to have not only been declared absentee property but to have been transferred to someone else. It's the Cliff Hotel, which stands on a hilltop between the village of Abu Dis and East Jerusalem. From one side there is a view of the Dead Sea, on the other, the gilded Dome of the Rock. The hotel was built before 1967 and since the application of Israeli law its owners paid taxes to the Bethlehem office of the Civil Administration. During the merry days of the Oslo process the hotel was renovated and did a booming business - it even appeared in the tourism directory issued by the Civil Administration. In short, the hotel's owners, some of who reside in Abu Dis, which is part of the West Bank, had every reason to think that the building was also part of the West Bank and not of unified Jerusalem.

However, the hotel's location was disadvantageous. In the summer of 2003, construction of the 8.5-meter-high concrete wall began in in Abu Dis, right next to the hotel, which thereby became a strategic site. So strategic, in fact, that in August the Defense Ministry sought to requisition it for "security needs." The process dragged on through the courts, until someone in the security establishment had a brainstorm: to declare the hotel absentee property. So, after 36 years the hotel owners received two notifications. First, the hotel is actually in Jerusalem (after all, the demarcation line was not precise from the outset); and second, the hotel, which is worth about $3 million, according to the owners, is now in the possession of the Custodian of Absentee Property, without the state having to pay one red cent to anyone. It's a lot cheaper than the requisitioning process, in which compensation has to be paid. The Custodian, in turn, "leased" the hotel to the Defense Ministry and it became a Border Police base (and the place where several Border Policemen abused two Palestinians, forcing them to drink their own urine).

The hotel owners appealed to the Jerusalem District Court, and lost. Now through their lawyer, Shlomo Laker, they are appealing to the Supreme Court. Their argument is that the hotel was always in the West Bank and therefore cannot be considered absentee property; that the declaration of absentee status was not made in good faith; and, no less important, that the very declaration of people who exist as being absent is problematic. As part of their case, they are quoting what retired Supreme Court Justice Miriam Ben Porat said when she was dealing with another case in the Supreme Court: "This case concerns residents of the village of Aqeb, who at that time were residents of Judea and Samaria under IDF rule. There is no doubt that they would not be considered absentees if their lands had not been annexed to unified Jerusalem. From the material presented to us it cannot be understood whether, in the circumstances of the case their property should have been seized in the wake of the unification of Jerusalem, when they are present at the place and living under Israeli rule."
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