OCHAoPT map of Palestinian communities under threat of eviction in East Jerusalem, as at 2016. Three areas of Sheikh Jarrah are identified: Im Haroun, Karm al-Jaouni and central Sheikh Jarrah.
The long-running legal and political dispute between Palestinian refugees and Israeli Jews over the ownership of certain properties and housing units in Sheikh Jarrah, East Jerusalem, has been called a microcosm of the Israeli–Palestinian disputes over land since 1948.[1] Israel's laws allow Jews to file claims over land in the East Jerusalem which they owned prior to 1948, but reject Palestinian claims over land in Israel which they owned.[2][3][4] In this specific case, the Palestinian residents of Sheikh Jarrah are refugees who have no right under Israeli law to repossess their pre-1948 homes in Haifa, Sarafand and Jaffa.[5][6]
The dispute is considered part of the Israeli government's Holy Basin settlement strategy.[7]Aryeh King, a deputy mayor of Jerusalem and one of the founders of the Ma'ale HaZeitim settler compound, told the New York Times that the Sheikh Jarrah property dispute was part of a municipal strategy to create “layers of Jews” throughout East Jerusalem.[8]
The property in Sheikh Jarrah in dispute includes the adjacent Shimon HaTzadik and Nahalat Shimon compounds. The Palestinian view is that given Sheikh Jarrah's location beyond the Green Line or Israel proper, Israeli courts have no jurisdiction over land disputes in what is occupied territory according to international law, and that the displacement of people in occupied territory is considered a war crime under the Rome Statute.[9]
The land was adjacent to what some believed was the site of the tomb of Shimon HaTzadik, a high priest of the 3rd century BCE, although according to scholarly consensus, based on an in situ inscription, it is the 2nd-century CE burial site of a Roman matron named Julia Sabina.[15][16]
Jordanian period
Jews in Nahalat Shimon on their way to the Tomb of Simeon the Just, 1927
In 1947, there were about 100 Jewish houses in the neighborhood.[citation needed] In March 1948, given their exposed and isolated position in the 1948 Arab–Israeli War, the British authorities ordered the residents to evacuate within two hours.[citation needed] East Jerusalem came under Jordanian rule following the 1948 War. The Jordanians expelled all Jews from East Jerusalem, and the Jordanian Custodian of Enemy Property was established in 1948 to handle property taken from Jews that had fled or been expelled from the territories then under Jordanian control, including the property in question.[citation needed] The evacuated Jewish residents were resettled in Palestinian homes in West Jerusalem.[17]
In 1956, the Jordanian government agreed with the United Nations Palestinian relief agency UNRWA to house 28 Palestinian refugee families in Sheikh Jarrah, who were required to pay rent to the Custodian.[18] These Palestinians families had previously lived in Haifa, Jaffa (now Tel Aviv) but had been displaced in 1948.[19]
Legal background
In 1948, approximately 750,000 Palestinians were displaced from their homes, and about 400 Palestinian towns and villages were depopulated, in areas which fell under Israeli control. In West Jerusalem the overwhelming mass of the wealthy Palestinian community, some 28,000, of which only roughly 750 (mostly Greeks and Christians) were permitted to remain, fled or was expelled and their property was ransacked, subsequently confiscated and distributed to Jews.[20]At the same time, a few hundred Jews evacuated from about a dozen locations in East Jerusalem and the West Bank were given properties in West Jerusalem that had been owned by Palestinians.[21] 10,000 mostly fully furnished Palestinian homes in the western sector of Jerusalem alone were occupied and their original owners and Palestinians with property in other parts of Mandatory Palestine and what later became Israel are denied the right to reclaim their property.[21][20] In 1970, on the other hand, Israel enacted a law to allow Jews to reclaim property which they owned in East Jerusalem, despite having already been given expropriated Palestinian-owned property in compensation.[21] This asymmetry has been pointed out by numerous observers.[21]
This arrangement does not exist in the rest of the West Bank, as the Israeli government decided that it would create tension, risk public order and lead to equivalent and much more numerous claims by West Bank Palestinians to reclaim their property in Israel.[22]
International law
The international community considers East Jerusalem to be Palestinian territory held under Israeli occupation. Israel effectively annexed the territory and considers it part of its capital city, though this move has been rejected by the international community.[23] The office of the United Nations High Commissioner for Human Rights (UNHCHR) has called on Israel to stop all forced evictions of Palestinians from Sheikh Jarrah, saying that if carried out the expulsions of the Palestinians would violate Israel's responsibilities under international law which prohibit the transfer of civilians in to or out of occupied territory by the occupying power. A spokesman for the UNHCHR said that such transfers may constitute a "war crime".[24] Human rights organizations have been critical of Israeli efforts to remove Palestinians from Sheikh Jarrah, with Human Rights Watch releasing a statement saying that the disparate rights between Palestinian and Jewish residents of East Jerusalem "underscores the reality of apartheid that Palestinians in East Jerusalem face."[25] Israeli human rights group estimate that over 1,000 Palestinian families are at risk of eviction in East Jerusalem.[26]
Israeli law
After East Jerusalem and the West Bank were captured and occupied by Israel during the Six-Day War in 1967, the status of properties in East Jerusalem that had previously been owned by Jews, like in Sheikh Jarrah, have been in dispute. At the time, there were no Jews living in Sheikh Jarrah, all having been evacuated in 1948 and not permitted to return. Palestinian refugees who had been expelled or displaced from their homes in Jaffa and Haifa in the 1947–1949 Palestine war and their descendants were being housed in Sheikh Jarrah.[27][28] No Jews lived in the neighbourhood until the 2000s.[citation needed]
In 1972, the Israeli Custodian General registered the properties under the Jewish trusts, the Sephardi Community Committee and the Committee of the Knesset of Israel, which demanded that the Palestinian residents pay rent to the trusts. In 1980, Israel annexed East Jerusalem, including the properties in question, and in consequence Israeli property laws commenced to apply to these properties. Under Israeli land and property laws, Israelis have the right to reclaim properties in East Jerusalem that had been owned by them before the 1948 Arab–Israeli War,[citation needed] but the reverse does not apply.[citation needed] The Palestinian Authority does not recognise the Israeli annexation of Jerusalem and insists that Palestinian land laws apply to land transactions in East Jerusalem, which forbid any sale of land to Jews in the Palestinian territories.[29]
In 1982, the Palestinian residents signed an agreement accepting Jewish ownership of the land while being allowed to live there as protected tenants. The Palestinian residents have since repudiated the agreement, saying they were tricked into signing it,[30] and have ceased paying rent.
The two Jewish trusts, which have been held by Israeli courts to be owners of the property, sold the homes to the right-wing Nahalat Shimon settler association,[30] that has since made repeated attempts to evict the Palestinian residents to enable Jewish settlers to move in.
Evictions
Sheikh Jarrah demonstration against eviction of Palestinian families, August 2010
In 2001, Israeli settlers moved into a sealed section of the al-Kurd family's house in the compound of Shimon HaTzadik and refused to leave, claiming the property was owned by Jews.[31] The dispute was heard by the Jerusalem District Court, which ruled in 2008 that the property belonged to the Sephardi Community Committee. The committee transferred the property to a settler organization called "Shimon's Estate". The court also ruled that the Arab families would have protected tenant status as long as they paid rent. However, the al-Kurds refused to pay rent to the settler association, leading to their eviction in November 2008.[31][32]
The court ruling was based on an Ottoman-era bill of sale. Lawyers for the Jewish families argued that documents from the Ottoman Empire originally used to prove that a Jewish Sephardic organization had purchased the land in question in the 19th century are indeed valid. However, in 2009, after the court hearing had been finalised, the authenticity of these documents was challenged on the basis that the building had only been rented to the Sephardi group.[33] The lawyers for the Palestinians produced documents from Istanbul's Ottoman archives purporting to show that the Jewish organization that claims to own the land only rented it, and as such was not the rightful owner. The al-Kurd family claims that when they pressed the court to look at the new evidence, they were told "it's too late".[32] Moreover, the Palestinian families and their supporters maintained that Ottoman documents that Israel's Supreme Court had validated were in fact forgeries, and that the original ruling and therefore evictions relating to that ruling should be reversed.[34][35] The lawyer for the Israeli families emphasized that the land deeds were authentic, according to many Israeli courts.[32] The Israeli court decision (resulting in the aforementioned evictions) stated that the document presented by the Palestinian families was a forgery, while the document of Jewish ownership was authentic.[13]
43 Palestinians were evicted in 2002, the Hanoun and Ghawi families in 2008, and the Shamasneh family in 2017.[36] In 2010, the Supreme Court of Israel rejected an appeal by Palestinian families who had lived in 57 housing units who had petitioned the court to have their ownership to the properties recognized.[37] These petitioners refused to pay rent to the recognised owners and carried out construction on the properties unauthorized by those who the courts had recognized as the owners, and were evicted.[38]
In August 2009, the al-Hanoun and al-Ghawi families were evicted from two homes in Sheikh Jarrah and Jewish families moved in after a Supreme Court ruling that the property was owned by Jews. The United Nations coordinator for the Middle East Peace Process, Robert Serry condemned the decision: "These actions heighten tensions and undermine international efforts to create conditions for fruitful negotiations to achieve peace."[39] The US State Department called it a violation of Israel's obligations under the Road map for peace.[40] Palestinian negotiator Saeb Erekat said "Tonight, while these new settlers from abroad will be accommodating themselves and their belongings in these Palestinian houses, 19 newly homeless children will have nowhere to sleep."[39] Yakir Segev of the Jerusalem municipal council responded: "This is a matter of the court. It is a civil dispute between Palestinian families and those of Israeli settlers, regarding who is the rightful owner of this property... Israeli law is the only law we are obliged to obey."[41]
The Palestinian families being evicted from Sheikh Jarrah owned property inside Israel (inside the Green Line), including in West Jerusalem], before 1948. Their properties were transferred to Israel under its Absentee Property Law.[6] Palestinian families have offered to leave Sheikh Jarrah if they could get their pre-1948 property back. Conversely, one evicted Palestinian offered his home in Sarafand, Israel, in exchange for acquiring ownership of his home in Sheikh Jarrah; he did not receive a response to his proposal.[6]
In 2021, Israel's Supreme Court had been expected to deliver a ruling on 10 May 2021 on whether to uphold the eviction of Palestinian families from the Sheikh Jarrah neighbourhood that had been permitted by a lower court. The order covers 13 families, 58 people including 17 children. Six families were to be evicted by 2 May (subject to Supreme Court ruling) and a further seven families by 1 August.[36] On 9 May 2021, the Israeli Supreme Court delayed the expected decision on evictions for 30 days, after an intervention from Attorney General of IsraelAvichai Mandelblit.[42]
Confrontation
Palestinians and Israeli settlers first clashed on 6 May 2021 in Sheikh Jarrah. Palestinian protesters had been holding nightly outdoor iftars. On 6 May, Israeli settlers and Otzma Yehudit set up a table across the street from the Palestinians. Social media videos showed both sides hurling rocks and chairs at each other. Israeli police intervened to keep the peace but arrested at least 7 people.[43]
^"What has caused Jerusalem's worst violence in years?". The Guardian. 11 May 2021. Under Israeli law, Jews who can prove pre-1948 title can claim back their Jerusalem properties. No similar law exists for Palestinians who lost homes in West Jerusalem.
^Marina Sergides. "Housing in East Jerusalem: Marina Sergides Reports on an Legal Mission to the Occupied Palestinian TerritoryArchived 12 May 2021 at the Wayback Machine." Socialist Lawyer, no. 60, 2012, pp. 14–17: "Moreover, the delegation observed that there is an asymmetry in the way the Israeli courts treat the question of pre-1948 property rights. While the courts have been willing to uphold claims by Jewish organisations in relation to property in Sheikh Jarrah allegedly owned by Jewish families before 1948, similar claims by the Palestinian residents of Sheikh Jarrah in relation to lands which their families owned in what is now the State of Israel would not be entertained. Such asymmetry is simply not justifiable."
^Evictions in Jerusalem Become Focus of Israeli-Palestinian Conflict, May 7, 2021: "But Mr. King, the deputy mayor, said “of course” they are part of a wider strategy of installing “layers of Jews” throughout East Jerusalem. That policy, Mr. King said, “is the way to secure the future of Jerusalem as a Jewish capital for the Jewish people.” “If we will not be in big numbers and if we will not be at the right places in strategic areas in East Jerusalem,” he added, then future peace negotiators “will try to divide Jerusalem and to give part of Jerusalem to our enemy.”"
^Marina Sergides. "Housing in East Jerusalem: Marina Sergides Reports on an Legal Mission to the Occupied Palestinian TerritoryArchived 12 May 2021 at the Wayback Machine." Socialist Lawyer, no. 60, 2012, pp. 14–17: "This company rely on old Ottoman documents, appearing to suggest that Sheikh Jarrah was bought by Jewish families in the 19th Century before the declaration of the Israeli State. The authenticity of these very old documents is questionable. ... The delegation received well-documented information raising serious doubts with regards to the authenticity and accuracy of the Ottoman era documents used by the Jewish Committees and the Nahalat Shimon Company to claim ownership of much of the land in Sheikh Jarrah, doubts which however are not being considered properly by the Israeli courts."
^Charles Clermont-Ganneau (1899). Archaeological Researches in Palestine During the Years 1873–1874. Vol. I. London: Palestine Exploration Fund. pp. 267–270.
^Jerome Murphy-O’Connor (2008). The Holy Land. Oxford Archaeological Guides. p. 157.
^ abcdThe Absentee Property Law and its Implementation in East Jerusalem: A Legal Guide and Analysis, May 2013, Norwegian Refugee Council: "The asymmetry of Israeli legislation can be seen when juxtaposing the provisions of the Israeli legislation regarding Palestinian absentee property within the Green Line boundaries with the Israeli legislation regarding properties in East Jerusalem owned by Jews prior to 1948. As noted previously, Palestinians who owned property on the western side of the Green Line (including West Jerusalem) prior to 1948 cannot, in most cases, reclaim their property. This property has been transferred, in accordance with the APL, to the Custodian of Absentee Property, who in turn sold it to the Development Authority, which, in many cases, then transferred the property to Jewish Israelis. The general rule – according to the APL and court rulings – is that this property should not be returned to its previous owners. Article 28 of the APL, which constitutes an exception to this rule, allows the Custodian to use his discretion to consider whether to release property already vested in the Custodian. The Custodian's discretion under Article 28 of the APL is limited to those cases where a special committee, formed in accordance with Article 29 of the APL, recommends that he release the property. The 1970 Law, however, provides a wholly different approach. According to the 1970 Law, once the pre-1948 owners of particular property in East Jerusalem establish that they were indeed the true owners of the property, the Custodian General must release the property to them. Thus, the 1970 Law not only decrees that this property – as opposed to property belonging to Palestinian absentees – should be released to its previous owners, but also provides that the Custodian General cannot even exercise any discretion on the subject. He is obliged to hand the property back to the owners. Moreover, it should be noted that Israeli Jews who abandoned their property in East Jerusalem in 1948 received alternate property in West Jerusalem from the State of Israel as compensation. In most cases, this property was previously owned by Palestinians prior to 1948. According to the 1970 Law, these Jews may also reacquire rights in property they previously owned in East Jerusalem despite the fact that they have already been compensated for the loss of this property."
^The Absentee Property Law and its Implementation in East Jerusalem: A Legal Guide and Analysis, May 2013, Norwegian Refugee Council: "A completely different regime applies to property owned by Jews prior to 1948 and located in parts of the West Bank that were not annexed to Israel in 1967. Following the Israeli occupation of the West Bank in 1967, the authorization to administer and manage property in these areas came under the responsibility of the Custodian of Government and Abandoned Property of the Israeli Civil Administration.136 The current stance of the Israeli Civil Administration137 with regard to this property is that it should not be released to the pre-1948 owners. They base this position, presented by State representatives in cases before the Israeli High Court of Justice, inter alia, on Israel’s obligation, as the occupying power, to maintain public order in the occupied territory. The State added that releasing this property to the pre-1948 owners may lead to a series of claims by Palestinian refugees to reacquire their property left behind in Israel in 1948. Since, according to Israeli law, these claims would most likely be rejected, it may lead to an increase in disputes over land in the region and, as a result, to an increase in tension.138 The High Court of Justice has, to date, upheld this position."
