And the Loser Rejoiced

Judicial texts can sometimes be confusing. The bottom line in the ruling by Civil Administration military judges on Appeal 18/07 is a case in point: Three military judges ruled that the Jews who took over two stores in the Hebron Triangle Market two years ago must leave within 60 days. But this legal defeat has caused much rejoicing among Hebron's Jews, while it worries attorney Michael Sfard, who, on behalf of the Peace Now movement, represents Arab petitioners who once leased the stores. He knows as well as they do that this is a bitter victory.

The story of Lot 6 in Section 34026, near Hebron's Avraham Avinu neighborhood, is a scaled-down version of 80 years of Jewish-Arab conflict in the city. The Ezra family, who owns the land, was the last Jewish family to leave Hebron when the War of Independence broke out. Ya'akov Ezra had returned to Hebron after the 1929 massacre, and for years, he attempted to revive the Jewish community there. But in November 1947, he too surrendered and left the city.

His son, Yosef Ezra, requested that the family home be returned to him 20 years later, but the Israeli government had transferred management of abandoned Jewish property in Hebron from "Jordanian guardianship of Zionist enemy property" to "Israeli guardianship," and the Israeli executor leased Ezra's property and others to Arab families.

In 2000, the Israel Defense Forces evacuated Arab renters from Beit Ezra stores as part of "security precautions." Two years ago, Jewish families settled there. The Peace Now movement complained, and the state issued evacuation orders. The Jews appealed. Sfarad represented the Arab renters. Deliberations in the Military Appeals Committee appeared to focus on the evacuation of two stores, but they quickly escalated into a principled examination of Jewish property in Hebron.

Yosef Ezra, now 75, was 14 when his family left the city. He attended the committee's deliberations, and recalled minute, significant and less significant details. He told, for example, how his father Ya'akov bought all of the milk produced in Hebron for years, and, in his home dairy, turned it into top-quality cheese. But he also remembered the Certificate of Honor that David Ben-Gurion granted to him when his brother, Shalom, fell in the battle to defend the Gush Etzion bloc.

"Why is the property I inherited still defined as enemy property? Was my brother, who fell in 1948, the enemy?" he asked.

Attorneys Yoram Sheftel and Doron Nir managed to embarrass the executor when they exposed a secret position paper by the Civil Administration's legal advisor. Colonel Sharon Afek had written, the "executor must consider the wishes of the original owners," who are, in this case, Jews. The military judges agreed with him. This lent significant weight to two factors the executor nearly failed to consider: the owners' wishes and the good of the property.

"It appears, with a great deal of certainty, that the proper, efficient and only use possible, given the circumstances, is to permit the [Jewish] families, who represent part of the population's human fabric ... to live in the [Beit Ezra] stores," wrote one of the judges. Appeals Committee judges did not understand why the executor ignored the Civil Administration legal advisor's opinion, and also expressed their displeasure at the executor's failure to honor their previous recommendations in the case of the Hebron wholesale market, in which Jewish settlers were evacuated from stores, and the stores were actually destroyed.

The three judges did rule that the settlers must leave the stores within two months, because they moved in without permission, but they also ruled that, during that period, Ezra and the Jewish settlement movement in Hebron could present a request to allocate the property to them. They ordered the executor to respond to that request within 30 days, and to deliberate the issue with an eye toward the principles of the welfare of the property, which the settlers had renovated, and the wishes of the owners.

Orit Strock, one of the leaders of the Hebron Jewish settlement, believes that the broader meaning of the ruling is that the "supervisor" will be forced to significantly change his conduct regarding vacant Jewish-owned property in Hebron. This pertains to the Wholesale Market, lots in Tel Romeida, and a row of stores in the Avraham Avinu neighborhood, among others.

"This is a precedent-setting decision and a breakthrough," Struk said.

Sfard believes that the committee's decision, which is, at least formally, merely a recommendation, will not be implemented.

"It is a dangerous decision - not only for the delicate, fragile fabric of Hebron - because it has broad, precedent-setting implications, not only for property which belonged to Jews before 1948, but for property that belonged to Palestinians and was taken from them in one way or another. This committee forged a narrow legal opening to realize the right of return. If the wishes of the original owners are to be taken into consideration, there are also original owners of properties that are now in the hands of Jews," he said.

Struk says there is no basis for comparison. "The aggressor, who started the war against the Jews, in 1948, is the Arab, and the consequence of his actions, according to international law, is that he loses his property," she said.

Sfard believes that there is a foundation for comparison. This process will be halted, in court, he predicts.