Earlier this month the High Court of Justice ruled on one of the most complicated and problematic issues it has ever faced: Does the 1950 Absentee Property Law apply to property held by West Bank residents in East Jerusalem, and if so, may the state confiscate such property?
- Supreme Court rules: Israel can confiscate Palestinian property in Jerusalem
- Israel's Absentee Property Law exposes an absence of morality in Jerusalem
- Israel's AG: Absentee properties in East Jerusalem can be confiscated
- Settlers move into 25 East Jerusalem homes, marking biggest influx in decades
- Israel's Supreme Court cannot afford to compromise
Regarding the first question, the court said yes. Regarding the second question, the court ruled that the law should only be applied rarely and with the explicit approval of the attorney general and the cabinet or ministerial committee.
And everything would be subject to High Court supervision. Court President Miriam Naor and Justice Esther Hayut added that implementation of the law could not be justified, but they agreed that the law was valid.
Thus the High Court made a clear decision: It is possible to deny West Bank residents their East Jerusalem assets, and even without compensation. And this legal definition of “absentee property” is the technical result of Israel extending its civil law to East Jerusalem in 1967.
The justices were not comfortable with the law, but the question of striking it down was not on the agenda. The court was unwilling to take a bold interpretive step and say the law did not apply to West Bank residents with assets in East Jerusalem.
It could be said the court took the elegant way out. It did not confront the legislature and its right-wing majority, one that is threatening to cut the court’s authority down to size. This reality has a chilling effect on the liberal court.
The solution it found is conservative. It enshrines the guidelines of previous attorney generals (Meir Shamgar and Menachem Mazuz) and seems to obtain what the judges wanted — non-implementation because of the intolerable harm to property rights in a democratic state.
Still, the overall ruling is disturbing. The court authorized an intolerable situation. How is it possible to allow — even if only in law — the revocation of property rights based on the technical claim of “absenteeism”?
The very logic is based on enmity. Already in 1970 the Knesset declared that East Jerusalem residents were no longer “absentees.” Why did their brethren have to have “enemy” tattooed on their foreheads? And all this happened when it was clear that when the law was legislated in the early ‘50s, no one was dreaming about East Jerusalem.
Moreover, in this democratic state, the confiscation of property does not obligate compensation. And when the law technically comes into force, it could lead to the confiscation of property without compensation from settlers or Israeli soldiers who own property in Jerusalem but live in the West Bank.
Did anyone ever think of confiscating the property of those Jews? Would such an outcome be infuriating? How can this be reconciled with a ruling that allows the implementation of this unjust law on Arabs but not on Jews?
This law, which clearly transfers Arab assets in Jerusalem to Jewish hands — that’s its true aim — should have but one fate: to pass from this world. It is artificial to implement it in East Jerusalem.
So why did the High Court sacrifice justice for other considerations and reach an inappropriate result? The High Court is the end of the legal line in a democratic state. It needs to be a gleaming realm of justice.
Talia Sasson is the incoming president of the New Israel Fund.