Israeli Court Rules Homeless Shelter, Mall Can Be Built Over Muslim Cemetery

Judge rules that interests of the living should take precedence over those of the dead in case of Ottoman-era cemetery in Jaffa

Gravesites discovered on the construction site in Jaffa in April
Yaffa 48

The Tel Aviv municipality may now build a homeless shelter on a site where Ottoman-era Muslim graves were found, a court ruled on Tuesday, rejecting an appeal from the local Islamic Council.

The court said that despite the importance of not offending the city’s Muslim residents, the interests of the living should take precedence over those of the dead. 

Attorney Mohammed Adri'i, who chairs the Islamic Council in Jaffa, said the decision constitutes persecution and shows the policy of Israeli government and Tel Aviv municipality of "eradicating any memory" of Muslim presence in the area. The Islamic Council plans to appeal the ruling.

The site, on Jaffa's Elisabeth Bergner Street, housed a building from the Ottoman period that served as a homeless shelter. The Tel Aviv-Jaffa municipality decided to raze that building and replace it with a new, three-story complex that will include both a bigger homeless shelter and a shopping center.

Construction began in April 2018, but then the 18th-century al-Isa'af cemetery containing more than 60 graves was discovered. Jaffa residents asked the Tel Aviv District Court to cease further work at the site, and the court ordered a halt to construction until it issued a final ruling on their petition.

Although respect for the dead and the religious sensibilities of Jaffa's Muslim communities are crucial factors, Tel Aviv District Court Judge Avigail Cohen wrote in her ruling, “against these principles, which were put forth by the Islamic Council, stand constitutional principles that are also important: the landowner’s property rights and the public importance of the project – erecting a building to rehabilitate the homeless.”

She also noted that the graves are effectively invisible, since they are underground. Moreover, the site has not served as a cemetery , and “no one treated the land as if it had any religious sanctity.” All this reduces the weight that should be given to the dignity of the dead when it clashes with the needs of the living, she said.

In addition, the land is zoned for public purposes, and “The municipality must make maximum use of the public spaces it owns for important public needs,” she wrote. “Building a project for the homeless meets that need. The municipality has no right to give up, of its own initiative, on the use of lands zoned for public needs.”

During the proceedings, Cohen repeatedly urged the municipality and the Islamic Council to try to find a compromise, but they were unable to do so. Apparently, she wrote, this was due to “the view that according to the Muslim religion, it’s forbidden to harm the remnants of graves under any circumstances.”

Her ruling relied in part on the Supreme Court’s ruling on the Museum of Tolerance in Jerusalem, which was also built on the site of a former Muslim cemetery. That ruling included a lengthy discussion of how the dignity of the dead should be balanced against the needs of development.

The site of the proposed homeless shelter in Jaffa. The spray painted barrier reads "holy site" and "cemetery," April 16, 2019.
Moti Milrod

According to the city’s plan, around 100 homeless people will live in the new shelter, which will serve as a primary resource for those living on the street and beginning rehabilitation for drug addiction. Tel Aviv already has three “first stop” shelters. But as Haaretz has previously reported, the number of beds for the homeless has remained unchanged over the last five years, even as the homeless population in the city grew by 41 percent. The Jaffa shelter construction has been on hold for almost a year.

A history of rebuilding

The salvage dig at al-Isa'af shined a light on Muslim burial in Jaffa during the period, Dr. Yoav Arbel of the Israel Antiquities Authority said in a report submitted to the court. This information, he said, “demonstrates the city’s development over the previous centuries and reflects diverse religious and cultural customs.”

The cemetery appears on military maps dating from Napoleon’s conquest of the area in 1799, as well as on 20th-century maps, the report said. It also appears in drawings, especially from the 1930s.

Burial at the site ceased in 1896, and the graves gradually disappeared from view as people began building homes in the cemetery and the surrounding areas. Aside from the human remains found at the site, the dig also uncovered a glass vial that apparently contained perfume, an enameled tin bowl, armlets made of glass and brass and 11 bronze coins, most from the Ottoman era.

In 1916, for reasons of public health and development, the government relocated all the known graves to a cemetery in the Palestinian village of Sumail, whose remains today sit on the intersection of Tel Aviv's Arlozorov and Ibn Gbirol streets. Additional remains were discovered and moved in 1934.

The land was then turned into a soccer field for Jaffa’s Muslim sports club. Later, the government of Mandatory Palestine rented the site for use as a customs warehouse. It was rezoned for public use in 1958, and a family health clinic was later built there. Subsequently, the building was converted into a homeless shelter.

After the graves were discovered during construction of the new shelter, dozens of Jaffa residents, including members of the Islamic Council, came to the site to protest. The residents charged that dozens of graves had been opened, some of which contained complete skeletons.

The demonstrators found dozens of boxes and pails at the site containing human bones that awaited reburial someplace else, which is standard practice in such cases. They began reburying the bones in their original graves and mapping the gravesites. Members of the Islamic Council stayed there for two weeks and built headstones for the graves.

At the same time, the Islamic Council’s executive committee began negotiations with the municipality in an effort to preserve the cemetery intact. The talks went nowhere, and in April 2019, the city tried to resume work at the site. Jaffa residents then petitioned the court and obtained an injunction freezing the work.

Rafael Yulzari, who represented the Tel Aviv Foundation in the case, said the court’s ruling “speaks for itself. The Tel Aviv Foundation will continue working to promote projects for the welfare of city residents in general, and to advance the homeless shelter project in particular.”

Attorney Mohammed Adri'i, who chairs the Islamic Council in Jaffa, said the ruling reflects both the broad vision of the national government and the local vision of many local governments, including the Tel Aviv municipality, “in showing contempt and disrespect for preserving the dignity of the dead and for the Muslim community’s holy places.” 

“The Islamic Council would like to make it clear that if the municipality feels the ruling has given it free rein to do anything at the cemetery, it will thereby drag relations at the site to an unparalleled nadir,” he added.

The Tel Aviv municipality said that throughout the last year, it conducted a dialogue with Islamic Council representatives and other Jaffa residents to try to come up with an alternative plan. It stressed that the new shelter is being built “on land that served as a shelter for homeless people for many years, and that the new building will enable the provision of treatment to hundreds of people living on the streets who need it desperately. This is especially true in light of the existing shortage of solutions for homeless people in the city.”

It added that it will continue to conduct a “respectful” dialogue with community representatives “with the requisite sensitivity.”