Analysis

By Evicting East Jerusalem Palestinians, Israeli Courts Sweep Historic Injustice Under the Rug

Justices who ruled to evict families in response to right-wing organization's petition weren't comfortable kicking people out of their homes after so many years, but by doing so paved the way for further evacuations

A Palestinian woman walks down the Silwan neighborhood in East Jerusalem, 2018.
Emil Salman

Every time the efforts of the right-wing organization Ateret Cohanim to evict the residents of Silwan neighborhood’s Batan al-Hawa section in East Jerusalem make the headlines, it behooves us to recall some basic undisputable facts. During the War of Independence in 1948, Jews and Arabs were forced to abandon their property and flee to the other side of the border that had just been created. Numerous Arabs left almost all of their belongings in the areas that became the State of Israel, while a small number of Jews left some property in the areas that would eventually remain under Jordanian control. Immediately after the war, both the Israel and Jordan made decisions on how to deal with the property left behind.

Israel confiscated and nationalized all the property that the Arabs abandoned under the auspices of the Absentee Property Law of 1950. By contrast, the Jordanian custodian of absentee property was careful to preserve the property of Jews in their names. As a result, after the Six Day War in 1967, only Israeli Jewish citizens or their heirs – or as most often happened, settler organizations acting in lieu of those heirs – were able to demand and receive their property back. It was returned even if over the years the lands have been innocently purchased by Palestinians who lived there for decades.

The neighborhood of Batan al-Hawa is an extreme example stressing the difference between how Arab property was dealt with as opposed to Jewish property. A Jewish neighborhood that had been built for immigrants from Yemen with funds raised by the philanthropic organization Ezrat Nidahim lay in the Batan al-Hawa area until 1938. The homes in the neighborhood were owned by an Ottoman-era land trust that was registered in the name of Rabbi Moshe Benvenisti.

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In 2001, more than a century after the land trust had been established, the Jerusalem District Court approved the request by three members of Ateret Cohanim to become trustees of the land. With this brief decision that takes up half a page, and a subsequent decision by the Custodian General, the state placed 700 Palestinians, along with their property, under the control of Ateret Cohanim, which seeks to increase Jewish presence in Jerusalem's Old City.

Since then the settler group has managed to evict two families who were living in the building that used to be a synagogue, the only surviving structure from the Jewish neighborhood. The Israeli government announced a year and a half ago that it would build a Jewish Yemeni heritage center at the site, at a cost of 4.5 million shekels ($1.25 million). At a ceremony marking the establishment of the center, Minister Zeev Elkin properly depicted the nature of the relationship between the state and Ateret Cohanim, when describing the group’s leader, Matti Dan, as, “The highest priest of all, our friend Matti Dan, for whom all of us in the government and the Knesset work every time there’s a need to enlist in this important process of restoring these place to the Jewish people.”

Three months later, three High Court justices ruled on a petition submitted by 104 residents of Batan al-Hawa, which raised a number of issues of principle regarding the transfer of lands to Ateret Cohanim. In the ruling, written by Justice Daphne Barak-Erez, the court agreed that there had been faults in the state's conduct.

Baten al-Hawa.

According to the court ruling, the state neglected to inform the Palestinian residents that their homes were being transferred to settler ownership, and the Custodian General’s Office in the Justice Ministry didn’t even check the legal status of the land under Ottoman law. Nevertheless, Barak-Erez noted that what was done cannot be undone, allowing Ateret Cohanim to go ahead with its lawsuits aimed at evicting the Palestinian residents. Perhaps Barak-Erez was hoping that the magistrate's and district courts would take into account her reservations on the matter and re-examine the case.

But it’s hard to expect the lower courts to rule against Ateret Cohanim when the High Court didn’t dare do so. As expected, the Jerusalem Magistrate’s Court hearing the lawsuit against the Rajbi family did not revisit the problems pointed out regarding the actions carried out by the state and ruled Sunday that the family must be evacuated.

Nevertheless, the judges reviewing the Batan al-Hawa case think it's important to convey that they weren’t comfortable with evicting families from homes they’ve been living in for decades. “Evicting people who occupied land for dozens of years – some without even realizing that the land belongs to others – raises humanitarian difficulties,” Barak-Erez wrote in her ruling, suggesting that the state should consider, “providing a solution for those who have been evicted from their homes.”

Magistrate’s Court Judge Mordechai Burstyn, who ruled in favor of Ateret Cohanim, did not impose legal fees on the Palestinian family and suggested that the organization should compensate them (something the association’s attorney, Avi Segal, had repeatedly said it was prepared to do). In addition, Burstyn expressed hope that the state would provide a solution for those evicted.

One could accuse the judges of letting the legal minutiae blur the historic injustice and blatant inequality; one could blame them of not bothering to get to the bottom of things and weigh whether hundreds of Palestinian children should pay the price for the state’s outrageous decisions. One might even argue that they are afraid to confront strong and well-connected organizations like Ateret Cohanim. But one can’t deny the sense of humor they exhibit when they suggest that the State of Israel create a mechanism for compensating and resettling Palestinians evacuated by settlers.