GOI LAWYERS ON ABSENTEE PROPERTY LAW: HA'ARETZ

C O N F I D E N T I A L SECTION 01 OF 03 TEL AVIV 000518

SIPDIS

NSC FOR ABRAMS/DANIN

E.O. 12958: DECL: 01/28/2015
TAGS: PREL PHUM KWBG IS JE GOI INTERNAL ISRAELI PALESTINIAN AFFAIRS
SUBJECT: GOI LAWYERS ON ABSENTEE PROPERTY LAW: HA'ARETZ
ARTICLE NOT THE WHOLE STORY

REF: JERUSALEM 299

Classified By: DCM Gene A. Cretz for Reasons 1.4 (b) and (d).

This cable has been cleared by ConGen Jerusalem.


1. (C) Summary: GOI lawyers from the Ministry of Foreign
Affairs (MFA) and the Ministry of Justice (MOJ) told Deputy
Economic Counselor on January 26 and 27 that recent changes
to the Absentee Property Law (APL) are not aimed at
large-scale expropriations of Palestinian land in East
Jerusalem and are "not nefarious." They claimed the January
20 Ha'aretz article was incomplete and misleading, but the
two lawyers gave different reasons for why this change to the
APL took place now. Ehud Kanaan of the MFA said changes to
the law began in 2003 as a "procedural" request by the
Custodian of Absentee Properties because he found
transactions under the APL relating to East Jerusalem to be
burdensome. Mike Blass of the MOJ said the APL is being used
as a legal instrument to seize land for construction of the
separation barrier. The Ambassador has passed a list of
questions to PM Advisor Shalom Tourgeman to clarify GOI
intentions in preparation for Dov Weissglas's meeting in
Washington next week (see para 10). End Summary.

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Press Stories Misleading
--------------


2. (C) GOI lawyers claimed to Deputy Economic Counselor
January 26 and 27 that stories about new GOI land
confiscations in East Jerusalem under the Absentee Property
Law (APL) are incomplete and misleading. Foreign Affairs
Ministry Legal Advisor Ehud Kanaan denied allegations in a
January 20 Ha'aretz article claiming that changes in the APL
were aimed at large-scale expropriations of Palestinian lands
on the Jerusalem side of the separation barrier. Instead,
the changes were the result of an appeal by the former
Custodian for Absentee Properties to rationalize the system
for authorizing transactions involving "absentee property" in
East Jerusalem. Kanaan claimed that, far from attempting to
separate Palestinians from their land, the GOI was currently
working on procedures that would provide West Bankers special
permits they could use to pass through the separation barrier
to reach property on the other side.


3. (C) Deputy Attorney General Mike Blass emphasized that,
although the APL gives the GOI extensive powers to seize
land, the GOI has utilized this law over the past year only
in a limited number of cases in East Jerusalem, and only in
cases involving the separation barrier. Neither lawyer was
surprised by the fallout over the APL decision. Kanaan
claimed that he had argued last year against the decision as
ill-considered in view of its bad optics and Blass said, "We
Israelis are terrible at PR."

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Changes in APL "Not Nefarious"
--------------


4. (C) Kanaan claimed that the decision to apply the APL to
properties in East Jerusalem was the result of a "procedural"
request by the last Custodian of Absentee Properties,
Yaheskel Shamash. According to Kanaan's account, all
transactions involving property in East Jerusalem declared
absentee required the personal approval of the Custodian.
Shamash found this burdensome and lobbied to have the law
changed. This process began in 2003, Kanaan believed, and
culminated in a decision "passed in minutes by a government
committee, not the Cabinet" in the middle of 2004, referred
to in a January 20 article in Ha'aretz and outlined in
reftel. He also claimed that changes to the APL and its
application were frequent in nature and generally
unremarkable.


5. (C) In response to ECON/D's observation that this change
in the law raised important questions about the nature of the
separation barrier (Note: such as those raised in the
Ha'aretz piece),particularly in and around Jerusalem, Kanaan
said that, "although the timing of the change in the APL was
clearly unfortunate, there was no nefarious purpose
involved." He noted that he had himself argued against the
change in the APL as being likely to be misinterpreted
internationally. He emphasized that the GOI was "very
cautious" about actions relating to the separation barrier:
"this is not a political fence."

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Problems Accessing Land Lead to MoJ Recommendations
-------------- --------------


6. (C) Kanaan said the GOI was actively seeking to develop
and finalize procedures that would allow Palestinians to
access their land on the Jerusalem side of the fence. He
said that the erection of the separation barrier had led to
"a large number of Palestinians" raising access problems with
the army, who had turned to the Justice Ministry for advice.
Kanaan said the MoJ had developed a set of recommended
procedures, which had been discussed in an interagency
meeting a month and a half ago involving himself, the IDF,
the Office of the Custodian of Absentee Properties, the PMO,
the Finance Ministry, and others. The recommendations,
Kanaan believed, were now with the Attorney General for
decision and eventual forwarding to the "political echelon."


7. (C) Kanaan said the recommendations set up a procedure to
establish whether a Palestinian had been using property in
East Jerusalem and, if so, for how long. A West Bank farmer,
would instance, would be required to show that he had been
actively tending a set of fields over a period of time. The
second part of the recommendations set up a permit system
allowing such qualified Palestinians to continue using their
property. Kanaan said that he hoped these new
recommendations would be approved quickly, as the army was
bound to face more and more access cases in the future. He
did not say what the consequences would be for Palestinian
landowners who failed to provide sufficient power of active
land cultivation; however, Deputy Attorney Blass implied that
these land could be confiscated under the APL.

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"I Have Yet to See the APL Used to
Seize Territory for New Neighborhoods"
--------------


8. (C) Deputy Attorney General Mike Blass gave a somewhat
different account of the GOI's recent use of the APL in East
Jerusalem. He noted that the law, passed in the 1950s, had
applied to East Jerusalem as of 1967, when the GOI extended
its legal regime over this territory. The GOI's active
implementation of the law in this area had, however, been
intermittent. Although he asserted it was used fairly
regularly between 1977-1992, "numerous problems with the
application of the law," had led the GOI to suspend its
active application to East Jerusalem until construction of
the separation barrier.


9. (C) Blass noted that the APL was just "one of a number of
legal instruments," which could be used to seize land needed
for the barrier. He claimed that the GOI shied away from
utilizing its rights of eminent domain, because these implied
a permanent seizure of land, whereas the orders for land
required for barrier construction are "temporary in length,
approximately three years." The long-term fate of any seized
land, he added, depended on the future of the separation
barrier. "Title has already been given back, or is in the
process of being given back to property holders in the east
side of Qalqilya, Baqa, and Hirbat Gebere" where the barrier
routing has been changed. (Comment: Blass did not explain
why APL confiscations, which are permanent and not subject to
legal dispute, could be more appropriate for a temporary
barrier than equally permanent eminent domain actions. End
comment.)

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Remaining Questions
--------------


10. (C) Questions for the GOI regarding the Absentee
Property Law (APL):


A. What is the intention of making these changes to the APL?
-Is it going to be a legal instrument to seize land for
construction of the fence?
-If the barrier is being built for temporary security
reasons, and not to
permanently define boundaries, why use APL, which
permanently takes property?


B. If the APL is used to confiscate Palestinian land in East
Jerusalem, how will you assure that it is a temporary measure?


C. Who can approve absentee designation besides the
Custodian for Absentee Properties?


D. Are they planning to survey the land to determine if it
is being used or if it is absentee?


E. What legal recourse will the Palestinians have if their
land is designated as absentee?

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Comment
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11. (C) Although the contacts with whom we have spoken
stressed the GOI's intention not to use the Absentee Property
Law for large-scale seizures of Palestinian land in East
Jerusalem, the mere fact that the law gives the GOI such
broad powers is disturbing in and of itself. Also of
concern, particularly in view of the new reality of the
separation barrier, is the fact that the GOI is now using the
criteria of whether a Palestinian regularly accesses property
as a factor in determining whether to allow further access or
even continued ownership. At the very least, the GOI has a
responsibility to move forward as soon as possible with its
new permit procedures and should reconsider active
application of the APL to East Jerusalem. Embassy will
follow up with the GOI on questions related to the changes in
the APL such as who can now approve absentee designation
besides the Custodian of Absentee Properties, and why the GOI
is using the APL -- under which confiscations are permanent
and unappealable -- to confiscate land to build a barrier
that is purportedly a temporary security measure. End
comment.

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