Expanded High Court asks state not to confiscate land in east Jerusalem from Palestinians

Court asks state not to use law dating from after War of Independence, but says it does not have the power to strike the law completely.

By YONAH JEREMY BOB
Jabel Mukaber, east Jerusalem (photo credit: Wikimedia Commons)
Jabel Mukaber, east Jerusalem
(photo credit: Wikimedia Commons)
An expanded seven-justice panel of the High Court of Justice on Wednesday effectively asked the state not to use a law passed decades ago to confiscate land in east Jerusalem from Arabs, but also said it was powerless to strike down the law completely.
The court said that in those rare cases where the state applied the law, it should only be applied upon approval by the attorney-general and by high-ranking ministers.
When the court heard the petition in question in September 2013, it had suggested to the state and lawyers fighting to undo state confiscations of land in east Jerusalem from Arabs that the court might declare using the law for further confiscations unconstitutional – though it ultimately came up short of going that far.
While some of the petitioners, such as well-known lawyer Avigdor Feldman, were ready to embrace Wednesday’s recommendation as what they view as a long-delayed righting of decades of injustice, other petitioners, such as NGO Adalah’s director Hassan Jabareen and lawyer Souhad Bishara, were dismayed, viewing the suggestion as permanently anchoring in law 50 years of unjust confiscations.
Responding to the court’s implication that declaring the law unconstitutional not only going forward, but also retroactively, would open up a huge Pandora’s box of litigation over past confiscations, Adalah asserted that if there has been injustice, it must be undone regardless of the inconvenience and ensuing litigation.
Feldman explained his support for the suggestion in that, although many past confiscations would be formally legalized and his specific clients might not even win their cases under the court’s recommendation, the achievement of invalidating the law’s application to east Jerusalem had been the primary goal of the case.
The court asked all of the parties to provide a legal opinion on its suggestion of declaring applying the law in east Jerusalem as unconstitutional and to give their own ideas as to if the declaration should take effect only now or go back retroactively, perhaps to 1950 and perhaps to a different date.
Two weeks before the September 2013 hearing, Attorney- General Yehuda Weinstein had announced a major policy reversal in which the government would stop using the 1950 Absentee Property Law to confiscate east Jerusalem properties from Arabs for the benefit of Jews and the state.
The announcement had been designed to avoid throwing out the law’s application entirely.
That state announcement followed a May High Court decision demanding it explain its position in using the law to confiscate land in east Jerusalem.
Seventy years after helping to liberate Auschwitz as a captain in the Russian Army, 91-yearold Moisey Malkis said on the eve of Holocaust Martyrs and Heroes Remembrance Day that, as global anti-Semitism resurfaces with uncommon force, the lessons of that time are more critical than ever.
As he sat in the living room of his Hadera apartment proudly donning a blazer displaying the 50 medals he earned during his World War II service, Malkis said on Wednesday afternoon that he fears another Holocaust is possible if Jews do not protect Israel.
“Yes, I think it’s possible, unfortunately,” he said. “That’s why we need to always be in control of our interests and our security, and we need to maintain clever politics to avoid establishing regimes like Hitler’s in Germany. We need to make sure we can defend ourselves.”
A celebrated dentist in his hometown of Odessa, who served with distinction in the Red Army from 1942 to 1946, Malkis made aliya with his wife and two children 25 years ago.
In a 1943 battle near Leningrad, he survived being shot twice in the head by Nazi fire.
Malkis recovered and continued to fight for two more years.
On January 27, 1945, shortly after liberating Belarus, he and his unit arrived at Auschwitz.
“The German soldiers had fled at that point, and we saw all the crematoriums and people wearing their prisoners’ uniforms,” he said. “They were starving and in very poor health, and we were very angry with the Germans.”
“I felt pride after hearing about what happened to my relatives in Odessa, and very much wanted to avenge their deaths,” he added. “This was my opportunity to help Jews and non-Jews who were there.”
To that end, Malkis said he helped to quickly create a kitchen to feed the prisoners, while others in his unit made a makeshift hospital to care for those who were deathly ill until trained medical reinforcements arrived.
“I could hardly speak with them because we were afraid of diseases, so the order was to not get too close until the medical unit came,” he said. “We could only exchange a few words.”
Still, Malkis did get close to a couple of the survivors, and said that his most indelible memory from that experience was comforting two young Jewish women who looked decades older.
“They came to me, and I learned they were in their 30s, but they looked like real old ladies,” he said. “One was crying and the other one was laughing. The one who was laughing began petting me, touching my medals, saying thank you, and giving me hugs and kisses.”
“I will never forget this,” he continued.
Remarkably, Malkis said he would meet that woman’s grandson more than 60 years later while giving a speech at Hadera’s WWII museum.
“He said she is alive, she is living in the United States and is 93 years old,” he recounted with a smile.
Malkis said he regularly thinks about the war 70 years later, and keeps in contact with some of the survivors he helped liberate.
Asked what he would contemplate on Holocaust Remembrance Day, Malkis – who was married for 50 years, until his wife’s death in 2002, and has two grandchildren and five great-grandchildren – noted the personal loss he suffered.
“I have a lot of thoughts,” he said. “First of all, I lost a lot of relatives in ghettos. They killed my grandmother, aunt, and two other cousins, and I had another cousin who couldn’t speak for several years after watching a Nazi kill her mother.
So I have a lot of people to remember.”
Malkis continued, “I think about the tragedy of the Holocaust and what the Nazis have done to our people. I want to remind everybody that we have no other country, no other homeland and it’s our responsibility and our duty to defend our country and our people.”
To mark Limmud FSU’s annual conference in Moscow next week, which will celebrate the 70-year anniversary of the liberation, co-founder Chaim Chesler videotaped Malkis’s story to share with the 1,400 young Russian Jews who will be in attendance.
“This will be the largest Limmud conference in the history of the former Soviet Union, and we will show a special exhibition about the role of Jewish soldiers in the Red Army in defeating the Nazis and liberating Auschwitz,” said Chesler.
“The message of Moisey Malkis will be the highlight of the conference, because we know he will inspire them, and think the Holocaust theme is very important in our educational task.”
Asked what message he has for young Jews today, Malkis once again emphasized the critical nature of Israel.
“My message to the younger generation is that we have just one homeland, and we need to cherish it,” he said.
“And as soldiers you must defend Israel.”