Why we need to speak about the Absentee Property Law

Members of the Sumarin family.
Photo credit: The Sumarin Coalition
Members of the Sumarin family. Photo credit: The Sumarin Coalition

A few weeks ago I wrote a blog about the Sumarins, an East Jerusalem family facing eviction under Israel’s 1950 Absentee Property Law.

The resulting hostility took me by surprise: the comments were so abusive they had to be closed, and a blog supposedly responding to my piece focused on attacking me personally.

But why did the Sumarin case touch such a raw nerve? I believe the answer lies in the historic role of the Absentee Property Law (APL) and the purpose of its use in East Jerusalem.

The APL was enacted in 1950, ostensibly to address the management of property left by the 750,000 Palestinian refugees displaced from Israel during the 1948 war. In reality, the law provided not for management but for permanent expropriation. Its dual purposes were to expand Jewish control over land, and prevent the refugees from returning to their homes, considered necessary to ensure a substantial Jewish demographic majority in Israel.

The broad wording of the APL meant that almost every Palestinian who left their home during the war became an “abstentee” under Israeli law. This included those who had remained within what became Israeli territory, creating the paradoxical legal status of “present absentee”. All property belonging to absentees became “absentee property”, and could be expropriated by the state without compensation. Legal geographer Sandy Kedar estimates that Israel’s Palestinian-Arab citizens had around 40-60% of their land expropriated, giving lie to the claim that the APL’s purpose was solely to manage abandoned property.

Historian Shira Robinson estimates that in total the APL resulted in the expropriation of over 10,000 shops, 25,000 buildings, and almost 60% of the country’s fertile land. Most of the expropriated land was transferred to the Jewish National Fund (JNF), achieving the transfer of huge swathes of land privately owned by Palestinians into communal Jewish ownership. Robinson records that by 1954 more than one-third of Israel’s Jewish population lived or worked on absentee property. Although some mistakenly suggest the expropriation of Mizrachi Jews’ property by Arab states in the 1950s negates the effects of the APL, it was not the Palestinians who either took or received that property.

Palestinian refugees and their descendants have never given up their claim to return to the land taken under the APL. Known as the “right of return”, it is anathema to Israeli Jews. Israeli sociologist Dan Rabinowitz explains that this is because the claim forces engagement with the consequences of 1948 for Palestinians, “something the Israeli canon shrouds under thick screens of denial and unarticulated guilt”. Attitudes among Diaspora Jewry are similar. Questioning the APL is therefore to touch on a very raw nerve.

After the 1967 six-day war Israel annexed East Jerusalem, meaning the APL has since applied to land there. The broad terms of the law meant that any East Jerusalem property owned by residents of the West Bank or neighbouring Arab countries automatically became absentee property and could be expropriated by the state without compensation. This was identified as providing a legal mechanism by which East Jerusalem property could be transferred from private Palestinian to state ownership, and then into Jewish possession, often via the JNF or one of its subsidiaries. Israeli lawyer Michael Sfard has warned that if the Jordan Valley is annexed, much of the privately owned Palestinian land there may be declared absentee property and expropriated.

This mechanism has been used extensively in East Jerusalem, with the state acting in close co-operation with settler groups, focusing on areas in and around the Old City. The aim has been to create a Jewish presence in areas of historic importance to Jews, but inhabited solely by Palestinians, in an effort to prevent the areas becoming part of a future Palestinian state.

The Sumarin family home, about which I wrote a few weeks ago, is a prime target. It is right outside the Old City walls, in the neighbourhood of Silwan, adjacent to the City of David complex believed by some to be the site of King David’s palace. The home’s original owner, Musa Sumarin, died in 1984. Although his nephew, who had lived with and cared for him, remained in the home with his family, legal ownership passed to Musa’s sons who resided in Jordan, rendering the home absentee property. It was expropriated under the APL and transferred to the JNF. After a decades-long court battle, on 30th June 2020 the family were given until 16 August to vacate their home.

Due to government secrecy it is impossible to know how many properties have been taken under the APL, but analysts are clear that it has had a major role in establishing Jewish presence in East Jerusalem neighbourhoods in and around the Old City. Jerusalem lawyer Daniel Seidemann described it as the settlers’ “most effective tool” in the Old City and Silwan.

The historic, religious and emotional Jewish connection to Jerusalem is unquestionable. The regaining of access to Jewish holy sites in 1967 was a moment of profound joy in the Jewish world. Yet these areas, in the heart of Jerusalem, were then – and are still – home to another people, to whom they are both home and holy. Many in our community would prefer that Israel not give up control over these areas of Jerusalem, making it difficult to acknowledge that the tool used to cement this control is unfair. Such an acknowledgment would have resonances beyond East Jerusalem.

Ultimately, any discussion about the fairness of the APL can become a discussion about the fairness underlying the foundations of Israeli society: Jewish control of the land and a large Jewish demographic majority enabling Israel to self-identify as both Jewish and democratic. Any discussion of the fairness of the APL’s application in East Jerusalem can become a wider discussion about the fairness of establishing Jewish presence in areas meaningful to Jews and both home to and meaningful to Palestinians.

These are not easy topics to discuss. They may be perceived as the start of a dangerous conversation. Perhaps that is why so much energy has been expended in seeking to shut the conversation down.

As the Israeli government advances towards annexation, many of our communal leaders seem caught in the headlights, unable to discern a way forward, retreating into silence. This is in part a result of our collective failure to grapple with the difficult aspects of Israel’s founding and more recent past. This has hindered us in fully contextualising the present and identifying a principled way forward.

We need to have the difficult conversations about Israel. Such discussions need not weaken our connection to Israel, but can and must inform a just and principled approach to its future.

About the Author
Anna Roiser is a lawyer also studying part-time for an MA in Israeli Studies at SOAS.
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