Israel’s Screen of Legality behind the Sheikh Jarrah Dispossession

The situation in Jerusalem’s Sheikh Jarrah neighborhood represents a microcosm of the ongoing Judaization process that has been taking place since the creation of the State of Israel in 1948. It also must be seen within the context of the broader issues of the ongoing Palestinian Nakba and the attempts to create and sustain a system of apartheid and discrimination that favors Jews over non-Jews. The current collapse of the two-state paradigm, as well as the rise of Israeli right-wing movements that are not as interested in maintaining a façade of liberalism and respect for human rights, international law, and democracy makes the very demand for equality dangerous and subversive to the Zionist project altogether. The recent reports by the Israeli human rights organization B’Tselem and by Human Rights Watch attesting to the apartheid nature of Israel make it important to understand the role that Israeli laws play in creating the inequality that is an essential part of state policies, both inside the green line and in the occupied territories, including Jerusalem.

International and State Laws as Background

The status of Jerusalem has undergone a number of shifts. While Palestine was still under the British Mandate, the United Nations issued partition Resolution 181 in 1947 that authorized the creation of a Jewish and an Arab state and a Special International Regime for the city of Jerusalem. Count Folke Bernadotte, a Swedish diplomat, was to be the first governor of Jerusalem, but he was promptly assassinated by Zionist terrorists, and the international zone never materialized. In 1948, the State of Israel was established as Zionist forces took over large parts of Palestine, including West Jerusalem, while Arab troops took over other parts, including East Jerusalem. The West Bank was annexed by Jordan.

During the 1948 war that precipitated Palestinian dispossession, two Jewish neighborhoods in East Jerusalem were evacuated of their Jewish residents, who fled to West Jerusalem: Neve Yacoub and the Jewish Quarter of the Old City. At the same time, nine Palestinian neighborhoods on the other side, which became West Jerusalem, fell into Jewish hands and their residents fled or were driven out.

The Jewish-owned property that fell into Jordanian hands was initially administered by the Jordanian Custodian of Enemy Property who, with few exceptions, held that property in virtual trust and did not try to alter its title or ownership. 

The Jewish-owned property that fell into Jordanian hands was initially administered by the Jordanian Custodian of Enemy Property who, with few exceptions, held that property in virtual trust and did not try to alter its title or ownership. Among those properties were a few plots of empty land in Sheikh Jarrah. The Jordanian government agreed to build residences on those properties to house some of the many refugees who lost their homes in West Jerusalem and granted them protected tenancies, charging them a small fee as a yearly rent.

Israeli Property Laws

On the other side, the properties of Palestinians who lost their homes and lands were quickly transferred to the Israeli Custodian of Absentee Property who, while in theory also just a trustee, acted as full owner and often transferred the title of those properties to Zionist organizations, which proceeded to hold the title on behalf of all Jews worldwide. In theory, under the terms of the Custodian of Absentee Property law, if the Custodian “sold” that property, the Custodian would hold onto the purchase price in trust until a peace deal is negotiated. In reality, however, no such “trust” is found on the books of the State of Israel and such funds do not appear in the budgets of the Israeli government. The definition of “Absentee” itself was expansive and included many Palestinians who became Israeli citizens and, in fact, were actually present and holders of property. The newly established state cleverly defined them as “present absentees” for the purposes of stripping them of their properties.

The goal was very clear: to create a Jewish state, it was necessary to take possession of land and houses and place them in institutional Jewish Zionist hands, to be held on behalf of all Jews. The issue was not one of private possession by individual Jews, but corporate collective possession of property in perpetuity. The Jewish National Fund, as well as the Israel Land Administration, effectively merged with the Custodian of Absentee Property to create new structures of land possession and holding, which included not only the property of Palestinian absentees but also all public or communally held property in the state. The state would then develop and build up these lands and make them available to Jewish immigrants. Today, most Israeli Jews who “own” property in Israel actually only hold long-term leases to their property whose ultimate title is held by institutional Zionist organizations. Land that is “bought” or confiscated or otherwise taken from Palestinians also falls into the same category.

To create a Jewish state, it was necessary to take possession of land and houses and place them in institutional Jewish Zionist hands, to be held on behalf of all Jews. The issue was not one of private possession by individual Jews, but corporate collective possession of property in perpetuity.

When Israel captured the West Bank and East Jerusalem in 1967, the legal status of the occupied territories, including the Sheikh Jarrah neighborhood, was fixed by a consensus of international law, accepted by all. This included the legal advisor of Israel’s Ministry of Foreign Affairs, who declared in a secret written memorandum that the status of the occupied territories is that of belligerent occupation and that moving Israeli civilians into that territory would constitute a clear violation of international law. The imperative of Zionism, and of needing to make that land “Jewish,” however, created an anomaly whereby Israel had to actively work at Judaizing the land it captured and move Jewish settlers onto it, while maintaining a public posture that it was willing to return such property within the context of a peace settlement. Meanwhile, the actions it was taking on the ground required a legal basis and justification that could not be legitimized by conquest alone or by the ideological desire to Judaize the land it had acquired. This was particularly the case in East Jerusalem, which was fully populated: the Palestinian residents there did not flee in 1948 and largely continued to live there.

The first step in that direction was to effectively annex into Israel a large part of that territory in and around East Jerusalem, but without using the term annexation. Israel simply declared that it was “applying Israeli law and administration” to the territory and made it part of an expanded Jerusalem municipality. Israel announced that it had “unified” the city and would not again allow it to be divided. This step was governed totally by the Zionist imperative of including as much land and as few Palestinians as possible into the annexed area. It was done by gerrymandering the area to include huge swaths of sparsely populated land, reaching up to the outskirts of Ramallah in the north and down to Bethlehem in the south, while carefully keeping out more densely populated areas such as Al-Ram, Qalandia refugee camp, Hizma, and Abu Dis—even though Abu Dis was close enough that the Dome of the Rock and the walls of the Old City could be seen clearly from it.

Israeli law was selectively applied to that territory to achieve what could be politically accomplished. The Islamic Waqf (endowment) properties, for example, were not integrated into the Israeli Ministry of Religion, and the densely populated areas were largely left alone, while huge swaths of areas that were not built up were confiscated for “public use” or declared to be “green zones” for future settlement building, as political conditions permitted. Inside the Old City, the entire Moroccan Quarter was razed immediately, as well as the Jewish Quarter, and it was made to look like this was a result of the fighting over the Old City. A huge plaza was erected opposite to the Wailing Wall and a new Jewish Quarter was built to replace the old one. Individual Palestinians who owned property that was confiscated and bulldozed, and who appealed to the High Court, were bluntly told that the return of Jews to the Holy City after 2,000 years was a legitimate public purpose that permitted the confiscation as public domain of private property of individuals.

Israel then used both its power of public domain as well as its licensing and zoning power to effectively freeze all Palestinian building in the now expanded City of Jerusalem, and to build two rings of exclusively Jewish high-rise residences cutting off East Jerusalem from the rest of the West Bank. 

Israel then used both its power of public domain as well as its licensing and zoning power to effectively freeze all Palestinian building in the now expanded City of Jerusalem, and to build two rings of exclusively Jewish high-rise residences cutting off East Jerusalem from the rest of the West Bank. Public statements by Israeli officials made it clear that their zoning, licensing, and land use policies deliberately intended to create a Jewish majority not only in the whole of Jerusalem (where they intended to keep Palestinian residents to 28 percent of the population), but also to achieve a Jewish majority in East Jerusalem itself.

To the international community, which objected to these policies, Israel insisted that Jerusalem had been “united” and that it would not accept the city’s redivision. It also stated that Jerusalem should be dealt with separately from the rest of the occupied territories. Even when negotiations and peace treaties were being considered, the issue of Jerusalem would be left to be negotiated at the end—as part of “final status issues” to be determined later within the context of a peace treaty to be concluded no later than five years after the start of the Oslo Accords. Until the Trump Administration accepted Israel’s position and moved its embassy to Jerusalem, there was a near unanimous rejection of Israel’s actions in Jerusalem, which were viewed as part of an illegal “creeping annexation.” Israel, however, managed (with American support) to deflect such criticism and to act according to its ideological agenda, utilizing different Israeli laws, as the need arose, because it felt it could weather international criticism.

A Set of One-sided Israeli Laws

The laws Israel used to achieve its goals of acquiring more land and changing the demography of Jerusalem included the following:

Absentee Property Law. Israel had used this law extensively after its establishment since Jews only held about 6 percent of the land when the state was created. In East Jerusalem after 1967, however, Israel actually utilized this law mostly with respect to parcels of land that were not built up, and only after other methods failed, since a strict application of the definition of “absentee” would cover all of the Palestinian residents of East Jerusalem and would lead to the dispossession of all of them en masse. Israel, therefore, moved cautiously in using this method and generally accepted Palestinian titles to residential property in East Jerusalem as long as the registered owner carried an Israeli residency card and maintained Jerusalem as “the center of life.” Depriving East Jerusalemites of their residency cards continued to be a tool used mostly for demographic purposes; indeed, Israel has managed to strip 14,000 East Jerusalemites of their residency status since 1995. Even moving to the outskirts in Bethlehem and Ramallah was enough for Israel’s Ministry of Interior to determine that a Jerusalemite had lost his/her residency and ceased to be a resident in the city, even though the individual continued to be in physical possession of the blue residency card.

Even moving to the outskirts in Bethlehem and Ramallah was enough for Israel’s Ministry of Interior to determine that a Jerusalemite had lost his/her residency and ceased to be a resident in the city.

Licensing and zoning. Israel refused to draw up town planning maps for the Palestinian sectors of Jerusalem, which meant that it was hard or impossible to obtain building permits, even when title and ownership were clear. Instead, town plans were only approved for empty sections of land when their ownership had been obtained, either under the Absentee Property Law or under public domain (for public purposes) or otherwise. Then plans could be made and approved quickly and high-rise residences built, to be used exclusively by Jews. Palestinians who are forced by necessity to build without a license would live under the constant threats of house demolition as well as heavy fines; further, they would be forced to either destroy their own buildings or pay additional costs for Israeli demolition of their homes. For many years, the mere threat of such demolitions was effectively used to keep East Jerusalemites from being too politically active.

High municipal taxes and denial of services. Israel imposed high municipal taxes on Palestinian residences while, at the same time, it failed to provide basic services to their areas. In addition, by making payments of municipal taxes a primary item of evidence for continued legal residency, Israel achieved a very high degree of tax collection from Palestinian residents. It is noteworthy that in Israel itself, the tax collection rate hovered around 60-70 percent, but in some of the residential areas of East Jerusalem it reached—and even exceeded—100 percent, as individuals who could do so were willing to pay taxes on the same residence twice in order to ensure their residency status.

Closure of institutions. Not only did Israel and the Jerusalem Municipality fail to provide services and public institutions to serve the people of East Jerusalem, but they actively drove away and closed existing institutions there. They shuttered the Arab Studies Center, Orient House, and the Arab Chamber of Commerce. They pressured foreign NGOs serving Palestinians to move their headquarters outside Jerusalem’s expanded boundaries. After the Oslo Accords, which left Jerusalem to be determined within five years as a “final status issue,” Israel passed a law called “Implementing the Oslo Agreement: Restrictions” which specifically prohibited, and criminalized, any activity of the Palestinian National Authority in East Jerusalem. To its shame, the PNA went along with this scheme and did little to support the people of East Jerusalem, who found themselves truly orphaned without any voice in running their own affairs and without the support of the Palestinian communities in the rest of the West Bank. Until recently, they also did not develop strong ties with Palestinians who are Israeli citizens in the Galilee, inside Israel, for fear of appearing to support the annexation of Jerusalem into Israel, and they continued to treat the municipality of Jerusalem as an illegitimate hostile occupier. This left the Palestinian residents of East Jerusalem totally without guidance, leadership, or representation.

Law of Administration of 1970. Israel passed an administrative law allowing Jews who owned property in East Jerusalem to reclaim such property. It is important to note that no such provision was made for Palestinians to reclaim homes in West Jerusalem that were lost in 1948. The law is clearly discriminatory on its face, as it provides relief for Jews and not for Palestinians. In practice, the law does not provide relief to individual Jewish landowners since their claims are taken up by quasi-governmental Zionist organizations that claim this property on behalf of all Jews. Since such property is listed under the Jordanian Custodian of Enemy Property, whose functions have been taken over by the Israeli government, the property in question is often “sold” to settler organizations active in promoting the Zionist agenda of Judaization of the city.

In the case of Sheikh Jarrah, the Jordanian Government built residences on some plots of empty land and leased them to refugees who had lost their homes in West Jerusalem. 

In the case of Sheikh Jarrah, the Jordanian Government built residences on some plots of empty land and leased them to refugees who had lost their homes in West Jerusalem. The actual documents and agreements regarding these properties were reportedly recently sent by Jordanian authorities to the current homeowners to assist them in their claims.

Under old laws prevalent before 1967, the owner of a registered parcel of land owns everything on that land and below it. Unlike current Jordanian and Israeli laws that permit registration of apartments (condominium laws), which allow the separate registration of apartments apart from the land, the laws existing at the time, before 1967, had no such provisions, and therefore the registered owner of the title to the land legally owns everything on it.

One method that Israel has used to assert control and ownership was to offer Palestinians living on property claimed by the Custodian of Absentee Property a lifetime of protected tenancy in return for acknowledging ownership of the state (or the settler organizations claiming the land). A protected tenant cannot be evicted or have his/her rent increased. Some Palestinians agreed to such arrangements to avoid eviction, especially since they were offered cheap rent. However, as tenant protection laws in Israel gradually weakened, it became easier to evict protected tenants or to raise their rents to current market prices, which could be tens or even a hundred times higher than the protected tenancy. Furthermore, if a protected tenant tries to renovate or bring other members of the family into the rent, they could lose their protection.

As Jewish settlers take possession of one Palestinian unit, they usually demand police protection. Therefore, neighboring units as well as roofs and other entrances get confiscated allegedly for security reasons. Settlers then begin to harass their Palestinian neighbors, with government protection and complicity, as they expand that presence into surrounding areas. The presence in these cases is neither neighborly nor friendly as a prelude to coexistence; rather, it is openly a hostile takeover with intent to expand and displace existing owners.

While the courts act as if the laws and matters involved are straightforward landlord-tenant issues, the reality known to all parties is that Israel harbors a determined strategic goal that is driven by the desire to make the City of Jerusalem, and indeed all of Palestine, an exclusively Jewish territory.

Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. To learn more about Jonathan and read his previous publications click here