US embassy cable - 05TELAVIV518

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. 
 
------------------------ 
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." 
 
------------------------------ 
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." 
 
--------------------------------------------- ------ 
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. 
 
-------------------------------------- 
"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.) 
 
------------------- 
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 
------- 
 
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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