Absentee property

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a type of individual or collective possession denied to an indigenous class of inhabitants of Palestine through military and legislative events of the State of Israel’s proclamation of establishment process.

Israel’s Absentee Property Regulations (1950) vested possession of properties belonging to indigenous Palestinian Arabs in the "Custodian,” which was an acquisitive function within the Israeli Finance Ministry in 1947, established well in advance of the Regulations. The Law of Absentees’ Property (LAP) (see also "present absentee” below) provided the Custodian a new name, The "Custodian of Absentee Property” (CAP), also replaced the temporary and vague legal category of "abandoned” property with the better-defined and soon-to-be permanent category of "absentee property.” The CAP possessed broad administrative and quasijudicial powers, as well as evidentiary and procedural devices, to seize property at CAP’s own discretion, and ensured that the burden of proving "nonabsentee” status fell heavily on the newly dispossessed Palestinian Arab property holders.

The British Trading with the Enemy Act (1939), which created an extremely powerful property custodian and formally extinguished all rights of former owners, inspired the Israeli Absentee Property Regulations. Israel thus treated absentee property as State property, but the nature of the emergency legislation model from which the Israeli Absentees’ Property Law derived also made it subject to long-term legal challenge.

Therefore, the State of Israel incorporated the ideologically Zionist protostatal institutions within the State under 1953 legislation, but maintained them arguably outside of "government.” So, in order to retain the "absentee” properties and shed the potentially constraining State obligations governing the Custodian under general principles of public international law (see "obligations” above.), the State of Israel began transferring newly acquired properties—especially such properties acquired outside internationally recognized Israeli territory—to the parastatal institutions (Jewish National Fund, World Zionist Organization/Jewish Agency and their subsidiaries and affiliates) and, subsequently, other State-managed institutions that share the Zionist proto-statal institutions’ covenanted principles of Jewish-only presence in, and possession of the land, properties and productive resources contained in all areas of the Land of Israel (Eretz Israel), defined as the whole of historical Palestine.[1]

The illegal transfer of Palestinian refugees’ and internally displaced persons’ (all "absentees’) properties (see "Internally displace person(s)” above) to the Jewish National Fund (JNF) in exchange for revenues to the nascent colony was to a (then) off-shore England-registered entity, the JNF, which reunited with the State of Israel under the above-mentioned 1953 Knesset legislation. That transfer of "absentee property” took place over five years, after no standing party posed an international law challenge to Israel’s territorial expansion beyond the 1947 Partition Plan (UNGA resolution 181 [II]). That omission is despite the fact that UNGA 181 was merely one of the General Assembly’s contemporary nonbinding recommendations on the Palestine question, but submitted to a vote on 29 November 1947.

The "absentee property” lost in this gradual process is undetermined, but subject to reparation to Palestinian refugees and present absentees.

[1]   Israel’s first Prime Minister David Ben-Gurion later noted the legalistic motivations of retaining lands and properties, but under the name of the Jewish National Fund. He acknowledging that "the government does as it pleases with this property…[while]…the law limits the government in its efficient, permanent use” David Ben-Gurion diaries, no date, entry of 4 August 1949, cited in Forman and Kedar, ibid.

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