Mondoweiss

Legalizing the theft of Palestinian land has been Israeli policy since Day 1

Ayelet Shaked

Last night, the Israeli Knesset passed a law that retroactively legalizes the theft of Palestinian land property by Jewish settlers.

The law, officially called the “Regularization Law”, has been deemed an outright legalization of theft by politicians from both right and left as well as Haaretz. Even Attorney General Avichai Mendelblit says it is unconstitutional and violates the 4th Geneva Convention and he would not defend it in court. Not to worry: Justice Minister Ayelet Shaked says the state can get a private attorney if necessary. 

The law would retroactively legalize about 4,000 settler homes built in what is known as ‘outposts’, outside the ‘settlement blocs’ and on privately owned Palestinian land. Until now, such construction has been deemed illegal even by the bizarre set of Israeli laws applying, indirectly as it were, to the occupation. Thus the law crosses a line Israel has never violated before, even according to right-wingers like Dan Meridor, member of Knesset for Likud and a former minister, who called the law “evil and dangerous”; Israel’s Parliament never regulated Palestinian property ownership in the West Bank because “the Arabs of Judea and Samaria did not vote for the Knesset, and it has no authority to legislate for them,” Meridor says. “These are basic principles of democracy and Israeli law.”

Indeed, the law can be seen as a de facto legal annexation of the West Bank. Israel has so far only applied military law to its occupied subjects. If Israel is to be held to its standard in the fact of legislating on Palestinian property in occupied territory, it should arguably offer immediate citizenship to all its occupied subjects.

But lest we get carried away, to think that Israel has just done something that is radically different to what it has done in the past, we must remember that land theft has been a policy of Israel since day 1. The law that exemplifies this policy best is the Absentee Property law of 1950. This law facilitated the state takeover of Palestinian property, by considering those who had fled or not been present between 29th November 1947 (date of UN 181 ‘Partition Plan’) and Israel’s Declaration of Independence (May 14, 1948) as ‘absentees’, whose property would be taken over by the state. This law is one law inside a set of laws designed to deliver land to the hands of the State of Israel. For at the time of Partition, Jews owned merely about 7% of Palestine. By 1951, the Jewish State would own 92% of the territories over which it had control (at that time, 78% of historical Palestine). 

One might be lured to believe that this law is merely an archaic historical matter, which pertains only to Israel’s beginnings. But it is not. The Absentee Property law has been applied repeatedly, in wide interpretation, also in our times, to areas under Israel’s own self-proclaimed sovereignty. And the case that shows this perhaps best, is East Jerusalem:

Less than two years ago, Israel’s Supreme Court ruled that the Absentee Property Law applies to assets in East Jerusalem. The practical effect of the ruling is that it allows the state to take control of property in East Jerusalem whose owners live in the West Bank or Gaza. Despite the position adopted in 1968 by Attorney General Meir Shamgar that the law not be applied to East Jerusalem, the law came back into force there in 1977 (under the Begin government), and the application has swung back and forth since, like a pendulum.

In 1967, after the Six-Day War, which saw the extension of Jerusalem’s municipal boundaries, Palestinians with assets in Jerusalem suddenly found themselves considered “absentee” owners, even though they hadn’t gone anywhere. Sometimes they were living only a few hundred meters away, but outside the new Jerusalem city limits and officially in the West Bank, and found their property confiscated only because Israel drew the new municipal border between them and their property, making them no longer residents of Jerusalem – though they never left their homes.

In the 2015 case, rightwing settler groups asked the Custodian of Absentee Property to expropriate houses whose residents are in the West Bank and then Jewish settlers would rent the premises from the custodian. The Supreme Court judges voiced their concern about applying such a law in Jerusalem. Judge Asher Grunis said the law was problematic from the point of view of both international and administrative law, since the absentees in these cases are no refugees and they live in areas under Israeli control. They have become absentees, writes Grunis: “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. These are not [people] under the control of other countries, but [people] who are in territories in which Israel has control — to some extent — over.” Indeed, he pointed to the absurdity of the law by reflecting upon how it might work if applied to Jewish settlers: “For example, that is how, according to this interpretation, a property located in Tel Aviv whose owner is a resident of Ariel or Beit El [West Bank Jewish settlements] could be awarded to the Custodian [of Absentee Property]”. He went further in his attempt to point out the absurdity of the law by saying that it could be read in such a way that even a soldier sent by the government to serve in the territories or into an enemy country could have his property declared as “absentee property.”

But despite the absurdity, the Supreme Court made its typical rubber-stamping of the Israeli occupation land-grab, with a mere ‘caution’ that the law must only be applied in East Jerusalem in the “rarest of rare cases.”

Yes, leave it to the fat cat called the State of Israel to watch over the East Jerusalem sour cream, only devouring it ‘in the rarest of rare cases’.

But back to yesterday’s legalization of theft. This is not your obscure ruling that would require a lot of legal insight to understand. It’s a  straightforward law for land theft, which can be easily understood without much scrutiny. And it comes atop the UN Security Council Resolution 2334 of last December which deemed all settlements to be a ‘flagrant violation’ of international law. In effect, Israel has just legalized war crime, in no uncertain terms, and for the whole world to see, in full color. This will be hard to hide. It’s a bit like the Elor Azarya case, murder on full screen.

The oppostion Zionist Union leader Isaac Herzog warned that the law, enabling “theft of land”, would “endanger Israeli army officers” and “drag Israel to the International Court of Justice in The Hague”. Herzog promised to be “the responsible adult” and “block this dangerous law in Israel’s High Court of Justice.”

Now I don’t know if Herzog is really a responsible adult, as he tries to convey, in supposed contrast to the irresponsible and childish Netanyahu (at whom he aimed his comments). A year ago, Neve Gordon noted that

“Herzog’s diplomatic plan looks an awful lot like apartheid… Looking closely at Labor’s plan, the logic behind it becomes clear: since it is difficult to envision a Palestinian state in the foreseeable future, Israel should no longer be ashamed of putting Palestinians in Bantustans.”

Herzog is quoted speaking at the Institute for National Security Studies in Tel Aviv, telling the audience that he “wish[es] to separate from as many Palestinians as possible, as quickly as possible” explaining that “we’ll erect a big wall between us. That is the kind of co-existence that is possible right now… Ariel Sharon… didn’t finish the job. We want to finish it, to complete the barrier that separates us.”

”Finishing the job” was exactly what the generals of 1967 had in mind regarding the “unfinished job” of David Ben-Gurion in 1948. One could be apologetic and think that this is ‘just’ about taking over territory. But even ‘liberal leftists’ sometimes spill the beans and tell it like it is, for example Israeli historian Benny Morris, who told Haaretz journalist Ari Shavit:

“If he [Ben Gurion] was already engaged in expulsion, maybe he should have done a complete job. I know that this stuns the Arabs and the liberals and the politically correct types. But my feeling is that this place would be quieter and know less suffering if the matter had been resolved once and for all. If Ben-Gurion had carried out a large expulsion and cleansed the whole country – the whole Land of Israel, as far as the Jordan River. It may yet turn out that this was his fatal mistake. If he had carried out a full expulsion – rather than a partial one – he would have stabilized the State of Israel for generations.”

So now Israel’s government wants to finish the job. Legalise land theft, no more theft in nighttime – now, in full daylight.

Justice Minister Shaked will get another lawyer if Attorney General Mandelblit refuses to defend the state in court. Seeing the Israeli Supreme Court’s record, it’s not strange to assume that it will back the law. Maybe the judges will even note that the law must only be applied ‘in the rarest of rare cases’.

Israel really is a rare case.