As a domestic legal matter, Israel’s claim to Palestinian property is based on legislation which can be called the “laws of absentee property.” These laws reflect a few core concepts. The first is a far-reaching definition of “absentee,” which sweeps under its label virtually every Palestinian or Arab residing in Palestine who may have left his or her home and land, however briefly, to escape the fighting or as a result of forced expulsion during the 1948 conflict. Once defined an “absentee,” a Palestinian automatically loses all claim of right to ownership or use of his or her property.

The second is the concept of the Custodian of Absentee Property, who automatically acquires sole right, title, and use of all absentee property for the benefit of Israel. Since 1961, another legal fiction was created—the Israel Land Administration (ILA), an entity which took over the administration of almost all Palestinian refugee land confiscated under the absentee property laws. There were two important consequences of creating the ILA: the state insulated itself from claims by the original Palestinian landowners of wrongful taking and discriminatory application of the laws, and the ILA, as a “non-state” entity, incorporated covenants in every land transaction that prohibited the lease, transfer, or alienation of the property in any way to non-Jews, without incurring the liability to which the state might have been vulnerable. (Such “restrictive covenants” used in the United States by whites to prevent the transfer of land to blacks were declared illegal decades ago). Thus, Palestinian land was transformed virtually overnight from land benefiting its original owners into land that could only be used for the benefit of Jews in perpetuity.

The third is the concept of expropriation for public use, by which Israeli legislation mandates that the only compensation to be paid in case of challenge by the owners of the “absentee property” is value fixed at 1950 prices, and prohibits restitution of the property.

As an international legal matter, Israel has also carefully shielded itself from such claims—in effect, obtaining huge benefits from the international community while acquiring none of the obligations. Although Israel is signatory to many of the principal human rights conventions, it has failed to incorporate them into its domestic law. It has either submitted reservations that would prevent Palestinian legal challenges on the basis of violations of such conventions, or refused to submit to the jurisdiction of the enforcement bodies of the conventions.

For example, although Israel ratified the International Convention on Civil and Political Rights (ICCPR, 1966), it has not ratified the First Optional Protocol, which gives the Human Rights Committee jurisdiction to hear individual complaints. Nor has Israel made a declaration under Article 41 of that convention, giving the Human Rights Committee competence over interstate claims in which Israel might be involved. Also, Israel ratified the Convention on the Elimination of all Forms of Racial Discrimination (CERD, 1965) in 1979, but has not agreed to be bound by Article 22 which would require it to litigate disputes under the Convention in the International Court of Justice in the Hague. Israel has also refused to give that treaty body, the Committee on the Elimination of all Forms of Racial Discrimination, competence over individual complaints against the state under Article 14. Yet Israel has lobbied tirelessly to obtain full membership benefits in the United Nations—most recently, obtaining membership in the Western European and Others Group. Since the Oslo Accords, Israel has also obtained favorable trade status with European states and obtained additional large amounts of aid and other benefits from both Europe and the U.S.

In sum, there is currently no forum in which Palestinian refugees can make an enforceable claim for their land and properties taken by Israel. Despite the lack of any such forum, there is an urgent need to implement strategies designed to create institutions in which these concerns can be raised and addressed. Normally, claims or challenges concerning real property are made in the courts of the state where the property lies; however, Israel’s absentee property laws effectively preclude such claims in Israeli courts.

Cracks in the System:

For years, Israeli Arab and Jewish lawyers have made Palestinian restitution and compensation claims in Israeli courts without success. Recently, their work has begun making cracks in the seemingly impervious system set up to prevent just such claims. One case involved the claim of a Palestinian Israeli family seeking the right to purchase a home in a community in Qatzir. They faced opposition because the community wished to maintain its “Jewish character.” In this case, the Israeli High Court ruled this year that discriminating against Arab citizens of Israel was incompatible with the “non-discrimination” provisions in Israel’s Basic Laws of 1992.

Internationally, there are also cautious signs of promise. For example, three convention-monitoring committees (“treaty bodies”) have in the last few years issued scathing reports against Israel for consistently violating core provisions of those conventions with respect to its treatment of Palestinians. This year, the United Nations Human Rights Commission also issued three resolutions condemning, among other actions, Israel’s continued confiscation of Palestinian land, and referred to UN resolutions violated by Israel, including UN General Assembly Resolution 194. In a conference in Amman, Jordan earlier this year, the heads of parliamentary governments of the world issued a strong resolution demanding implementation of 194 for Palestinian refugee return and rights to their properties.

Finally, in one of the most interesting cases to emerge from an international court in recent years, the European Court of Human Rights (ECHR) issued a decision addressing property claims almost identical to those of Palestinian refugees. The ECHR has rendered a decision in the only case known to this author in which an individual successfully claimed restitution and compensation for property expropriated by a state of which she was not a national. This despite ongoing interstate negotiations and political attempts at settling refugee property issues in a collective manner. The case is Loizidou v. Turkey. In this case, the Turkish Republic of Northern Cyprus had expropriated the “abandoned” property of Greek Cypriots who left Cyprus. The ECHR ruled on behalf of the applicant, a Greek Cypriot, finding the expropriation an unlawful taking, and requiring restitution of her property as well as compensation for interference with her property rights. Israel, of course, is not a member of the Council of Europe and not a signatory to the European Convention. However, this case and the resolutions and decisions referred to above are significant in the search for strategies to promote and implement Palestinian refugee rights.

Susan Akram is Associate Professor at Boston University School of Law, teaching Immigration Law, Comparative Refugee Law, and supervising in the Civil Litigation Program. The above text may be used without permission but with proper attribution to the author and to the Palestine Center. This Information Brief does not necessarily reflect the views of the Center for Policy Analysis on Palestine or The Jerusalem Fund.

This information first appeared in Information Brief No. 41, 4 August 2000.