Opinion |

Sheikh Jarrah Is the First Test for Israel's New Attorney General

Akiva Eldar
Akiva Eldar
Sheikh Jarrah residents wave a Palestinian flag during a visit by Israeli lawmakers, in East Jerusalem on Tuesday.
Sheikh Jarrah residents wave a Palestinian flag during a visit by Israeli lawmakers, in East Jerusalem on Tuesday.Credit: Noam Rivkin Panton
Akiva Eldar
Akiva Eldar

On May 7, 2021, the day on which Knesset member Itamar Ben-Gvir settled for the first time in East Jerusalem’s Sheikh Jarrah neighborhood, the Israeli prime minister at the time, Benjamin Netanyahu warned him that “we have specific [security] warnings regarding Sheikh Jarrah. If you don’t get out of there, it could end in Hamas firing on Israel in the immediate future.”

Netanyahu made do with giving him a scolding, and it ended with a war in which 12 people were killed on the Israeli side and 280 dead, including 68 children, on the Palestinian side. Hundreds of others on both sides bear the physical and mental scars to this day from that confrontation. Sheikh Jarrah is again on fire and Hamas is again threatening to add fuel to the fire. Israeli security officials are again warning about a major conflagration and this time too, the politicians are at their wit’s end.

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Removing the pyromaniacs from Sheikh Jarrah is a necessary step, but it’s far from enough. By the way, the law that grants Knesset members immunity from prosecution also grants the police the authority to arrest and detain for 10 days any lawmaker who commits a “disturbance of the peace.” It’s difficult to think of conduct that disturbs the peace more than Ben-Gvir’s provocation in Sheikh Jarrah.

But to get the mosquitos away, you first need to drain the swamp. Two authorized legal opinions offer the government a solution to the right-wing messianic takeover of East Jerusalem Palestinian neighborhoods in general and the effort to make Sheikh Jarrah Jewish in particular.

In 1991, Yosef Harish, Israel’s attorney general at the time, decided that in certain circumstances, the police are authorized and perhaps even required “to prevent the owners of rights [to property] from immediately exercising those rights.” He said that although property rights to an asset are a basic value in our democratic form of government and while values are protected in our legal system, “this value is not an absolute value.”

When individuals’ property rights might conflict with other basic rights of society, such as the right to maintain the public peace and prevent unruliness and disaster, the two values must be weighed and balanced against one another. Attorney General Harish also decided that in such cases, the police are not obligated to provide security for the eviction of the Palestinian residents. And of course, in the absence of police security, it wouldn’t be possible to evict the Palestinian residents of Sheikh Jarrah from their homes.

Not only that. In 2019, then-Deputy Attorney General Menachem Mazuz issued a legal opinion in which he said that the government was authorized to expropriate property in Silwan – undergoing a rebranding effort by right-wing settlers as the City of David, another East Jerusalem neighborhood – to head off the creation of new points of friction as well as to maintain the government’s freedom of political action during a highly sensitive political period. “Individual action is liable to have severe consequences – both from a political standpoint and from the standpoint of public order,” Mazuz stated, adding that the government should not be left helpless to act.

Attorney General Avichai Mendelblit, who concluded his term in office last month, preferred to evade the issue of Sheikh Jarrah, relying on formal legal reasoning. In June, he informed the High Court of Justice, which had sought his stance on the explosive issue of efforts by Jews to evict Palestinians based on Jewish property rights in the neighborhood dating from before Israel’s establishment, that “in light of the factual and legal determinations made in these proceedings, … there is no basis for [Mendelblit] to take a stance ...”

Mendelblit has left the scene, but Sheikh Jarrah isn’t going anywhere. Will the new attorney general, Gali Baharav-Miara, follow her predecessor’s cowardly path and watch from her office, on nearby Saladin Street, as police throw hundreds of women, children and elderly residents of Sheikh Jarrah out of their homes? Sheikh Jarrah is her first trial by fire.

She has the power to put an end to the residents’ suffering, to prevent bloodshed and to show the world a less ugly side of the face of the occupation. Extinguishing Ben-Gvir’s match requires permanently getting rid of the powder keg that he loves to sit on.

If Attorney General Baharav-Miara recommends expropriating the property that right-wing nonprofit organizations have acquired in the neighborhood, she would assist the government in preventing the expulsion of the Palestinian residents and in providing them the status of protected tenants. It’s difficult to think of a better test of her intelligence, of her sense of justice and of her courage.

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