Palestinian Property Rights in the Shadow of Occupation

There are at least three contexts in which the Court has grappled with Palestinians’ property rights and to which it has recently devoted attention: home demolitions, absentee properties, and the legality of settlements. As the Court notes, the legality of all of these practices is questionable under international law and possibly under Israeli law, yet they continue to be implemented by the Israeli Government. Some of these practices predate Basic Law: Human Dignity and Liberty, so they cannot be struck down as unconstitutional. As a result, the Court has been split on the relationship between them and the Basic Law, with some ruling that the Basic Law bears no impact on the policies and statutes that predate it and others finding that the Basic Law must lead to appropriate constitutional interpretation.[1]

1. House demolitions: In recent months the Court has repeatedly been called upon to revisit the issue of military demolition of the homes of Palestinians who have committed (or are suspected of having committed) acts of terror against Israelis. While the Court has declined to reconsider the constitutionality of house demolitions, in two of these cases, several Justices have expressed concern about this measure on several bases: its efficacy as a deterrent; whether it is used to deny homeowners’ human dignity; and because it may be considered prohibited retribution under international law.
2. Absentee properties (Hussein v. Cohen): The joint appeals challenged the District Court decision that properties in East Jerusalem whose rights holders are residents of the West Bank constitute “absentee properties” under the Absentee Property Act and thus are granted to the Custodian of Absentee Properties for its maintenance and development. Writing for the Court, President Grunis declined to engage in constitutional analysis as the Act, which predated Basic Law: Human Dignity and Liberty, could not be struck down under its comity clause. President Grunis instead analyzed the legislative history behind the Act in the context of Israeli history – specifically, Israel's borders and relationships with its neighbors – and held that the Act does apply to these properties. The Court suggested that if and when peace is achieved, the Israeli Government may decide whether and how to redress the issue of absentee properties. The Court concluded that, because of the difficulties the Act posed, the Act must be implemented only on rare occasions and only when advance permission from the Attorney General and the Government have been secured for a specific property. The concurring Justices joined in the outcome but maintained that the Court should have reached it through constitutional interpretation.
3. Settlements (Dwikat v. Gov’t of Israel): In a petition by Palestinian residents of Nablus whose land was seized to build the settlement of Elon Moreh, the Court considered whether military and government officials who approved and ordered the taking and the settlement were motivated primarily by military needs, as required under Israeli and international law. The Court examined the process of identifying land for settlement. In this case, pursuant to pressure from settlers, government authorities identified optional sites from which the military then selected one. Providing a narrow definition of military needs, the Court found that military needs were not in fact the primary reason for the settlement, but that it was instead motivated by religious and political ideology regarding Jewish settlement of the Land of Israel. It therefore held that taking possession of privately owned Palestinian land under such circumstances was impermissible.

Taken together, the above policies and statutes reveal a broader system of property rights violations that raise concerns not just about denying an oppressed population one of the most fundamental human rights but also about prospects for peace. This in turns casts a shadow over their legality and opens the Court’s decisions to critique on grounds of constitutional validity or constitutional interpretation. Perhaps in the absence of authority to prohibit these practices entirely as unconstitutional, some strategies could be formulated for the Court to strictly limit their implementation and thus their potentially illegal and unjust outcomes.

One example of the difficulty posed by this system of property rights violations is the issue of permanence. As the Court notes in the Dwikat case on settlements, taking possession of private land by an occupying military is only permissible for military needs and on a temporary basis. This is one of the reasons the settlement in Dwikat was ruled unlawful. The concern for expanding settlements was made a brutal reality when settlers were involuntarily removed from their homes when the Government withdrew from Gaza in 2005. Yet despite what should be a lawful prohibition and a moral disincentive, the practice of settlements persist.

In Hussein (absentee properties) the Court evades the issue of compensation by leaving it to be resolved through future negotiations, indicating that dispossession under the Absentee Properties Act must ultimately be reversed or create cause for compensation. However, with no such negotiations in sight, one might argue that effectively, like the settlements, the Absentee Properties Act serves as a tool to make the occupation, and the violations of Palestinians’ property rights, permanent.

Perhaps a more troubling outcome of the Court’s decision to defer resolution to the time of peace negotiations is that such practices actually hinder these negotiations. Recall that the Court in Hussein (absentee properties case) restricts the implementation of the Act only to cases where both the Attorney General and the Government (or a committee of ministers it has appointed) finds it necessary. But there is no certainty such limit will be effective or that these decision-makers will in fact use their authority sparingly and without considering irrelevant and improper considerations. If anything, Dwikat (where the Court ruled that the Government had not been motivated primarily by security needs, as it should have been under international law) and the home demolitions cases (where the Court questioned the efficacy of home demolitions in deterring terrorist activity) are proof positive that other motivations such as ideology, religious views, or retribution might come into play. There is great concern, then, that when such motives muddy the waters, it could also be anticipated that economic and financial consequences connected to the taking of property and then the requirement to return it or compensate for it could have a negative effect on the prospect of successful peace talks. It is quite clear that, in this sense, any peace negotiations would carry grave economic impact, so much so that Israel may be disincentivized from reaching agreements or participating at all.

Perhaps, as the concurring Justices proposed in Hussein (absentee properties), the Court’s analysis should focus on constitutional interpretation of policies, even when they cannot be struck down for unconstitutionality. There are several ways such interpretive work can facilitate outcomes that better comply with both Israeli constitutional law and international law. Under the Limitations Clause of Basic Law: Human Dignity and Liberty, which governs when the Government may constitutionally infringe upon one’s basic rights – including property rights – the infringement must, among other preconditions, be for a worthy purpose. Hussein fails this test. The purported purpose of the Absentee Property Act, as presented by the State, is that lands granted to the Absentee Properties Custodian be re-appropriated for developing the state, presumably for residential, commercial or other uses to benefit Israel and its citizens. The worthiness of this purpose, however, is undermined by the fact that the Custodian need not perform any positive act to gain the rights to these properties, which indeed results, as the Court notes, in the Custodian often being unaware that properties had been placed under its authority. How, then, can the Custodian designate lands for development when it is unaware of its authority over them? Here, constitutional interpretation might have led the Court to devise a mechanism of informing the Custodian of properties granted to it and that only those properties which can in fact be used for development be designated as absentee properties. Another suggestion in regards to interpretation of “worthy cause” that could somewhat eliminate land rights violations and bring them within the contours of international law is to apply the Dwikat precedent–that properties may be taken for purposes of settlements only when they are significant for military needs – by analogy to the context of absentee properties as well, so that only those properties that are required for narrow military needs as understood under international law (and as explained in Dwikat) may be granted to the Absentee Properties Custodian.

In addition to a worthy cause, the Limitations Clause demands that the means to achieve that cause be proportional. One of the tests developed under the proportionality requirement is that there be a rational link between the ends used under the Act and the means – or the worthy purpose – of the Act. Here, house demolitions pose a difficulty. Based on data from the IDF itself, Justice Vogelman casts serious doubts as to whether house demolitions, purportedly a measure designed to deter terrorist activity, is actually effective. Justice Mazuz also questions whether under international law, house demolitions should be illegal because they can also be seen as retributive state action, and perhaps even collective punishment.

Lastly, and perhaps most significantly, is the least restrictive means test of the proportionality requirement. In order for an Act or policy infringing upon property rights to pass constitutional muster, the infringement and the means it employs must be as narrow as possible. None of the above land rights violations currently carry a right to compensation or permit a cause of action for recovery. The Court has left the question of compensation largely to future peace negotiations, essentially holding that because there is the potential for future compensation these property rights infringements pass the least restrictive means test. As noted above, however, delaying consideration as to returning or compensating for the land impacts the issue of permanence and raises concerns over the financial interest for Israel to hold good-faith peace negotiations.

The occupation has now gone on for almost fifty years. Palestinians’ property rights remain infringed without compensation or other recourse. One would hope that these facts would inspire the Court to be more vigilant about the systemic violations of property rights or, at the very least, attuned to the resulting perverse financial incentives and their pursuant barriers to peace. The State and its citizens will be better served in the long run when peace can be negotiated without the crippling weight of property.