In the Jerusalem neighborhood of Sheikh Jarrah, just two kilometers north of the Old City along the road that divides the city’s eastern and western halves, a group of Palestinian families have for decades been fighting against attempts by private Jewish organizations to evict them.
Each side in the dispute is convinced of the unquestionable justice of their cause. To the Jews, the land on which the Palestinians now live was once owned by two Jewish communal trusts until it was confiscated by the Jordanian military occupation in the wake of the 1948 war. It is a symbol of the destruction that Jordan wreaked on everything Jewish that fell within its territory in those years, including the demolition of large swaths of the Old City’s Jewish Quarter and the closure of Judaism’s holiest sites, the Temple Mount and the Western Wall, to Jewish worshipers throughout the years of its occupation from 1948 to 1967.
For Palestinians, the ongoing effort to evict the Palestinian families encapsulates the entire discriminatory edifice of Israeli control. The displacement of some small portion of Jerusalem’s Jews seven decades ago pales next to the catastrophe that befell many hundreds of thousands of Palestinians. The Palestinians who settled in the formerly Jewish-owned properties in Sheikh Jarrah were themselves refugees fleeing what would become Israel. The idea that Israelis would now demand a reversal of 1948’s calamities for a few dozen Jerusalem Jews but not for hundreds of thousands of Palestinians sums up, say Palestinians, their treatment by Israel over the years.
Five decades of legal proceedings have failed to produce a clear solution, and every few years the dispute escalates into mass protests and clashes in the streets. The protests and police crackdowns have become especially ferocious in recent months, transforming into a local, regional and international battle that has drawn scrutiny and criticism of Israel from Middle Eastern and Western governments, including the US. Israeli lawmakers, most prominently far-rightist Itamar Ben-Gvir, have faced off in the neighborhood’s streets in support of the sides. In May, amid the impending (now delayed) evictions of a handful of families, the Sheikh Jarrah cause became a rallying cry for Palestinians throughout Jerusalem and the West Bank, and one of the pretexts used by Hamas in launching the rocket attacks that began that month’s Gaza fighting.
Amid all the turmoil, however, the Israeli government, which isn’t party to the litigation, has refused to weigh in on the cases. Most Israeli officials one asks quietly convey their wish that the problem go away. A great many quietly pray for a Palestinian victory, if only because, as one official put it, no good can come of the Jewish groups’ efforts to press their claims, and the years-long legal fight has been an unnecessary public relations nightmare for the country. Apparently sharing that widely held view, Israel’s Supreme Court has repeatedly but unsuccessfully sought to hammer out a compromise between the parties that leaves the Palestinian families in the homes without settling the thorny ownership question.
Is Sheikh Jarrah, as Israel’s Foreign Ministry insists, merely a “private real estate dispute” that has been turned into an international anti-Israel dust-up by a well-oiled Palestinian propaganda machine? Or is it, as Palestinians argue to a sympathetic world, part of a long-term Israeli policy of “erasure” and “marginalization” of Jerusalem’s Palestinians that amounts to “ethnic cleansing?”
A real estate dispute, born in war
Both the Israeli and Palestinian versions of this story begin with a very real real estate dispute. The Sheikh Jarrah homes at the center of the controversy lie in what were once the Jewish neighborhoods of Shimon Hatzadik and Nahalat Shimon, built on plots of land near the traditional tomb of the 3rd century BCE priest Simon the Righteous. The plots, including the tomb, were purchased in 1876 by two Jewish religious organizations representing the Sephardi and Ashkenazi Jewish communities in Jerusalem. In the ensuing years, the two communal trusts built homes at the sites that would come to house some 100 Jewish households.
Seventy-two years after that initial purchase, in the throes of the 1948 war, the Jews at the site were forced to flee their homes out of fear of Jordanian and Palestinian violence. (Sheikh Jarrah was the site of the April 14, 1948, massacre of a convoy of Jewish doctors and nurses headed to Hadassah Hospital on Mount Scopus.) By war’s end, Sheikh Jarrah, including its Jewish enclaves, was under the control of Jordan’s new military occupation of the West Bank.
In 1950, the Jordanian governor of the West Bank issued Proclamation 55, which declared all Israelis to be “enemies,” allowing the state to systematically confiscate all Jewish-owned sites and properties in the West Bank. Estimates put the total land confiscated by Jordan’s Custodian of Enemy Property at some 30,000 dunams. Many homes and other buildings were demolished, including much of the Old City’s Jewish Quarter. In all, the properties of some 2,000 Jews were taken by the Jordanian Custodian, mostly in the Old City.
In Sheikh Jarrah as elsewhere, the newly seized Jewish properties were used to house Palestinians who had fled from within the new State of Israel. In a joint venture between Jordan and UNRWA in 1956, homes were built on the Jewish-owned plots in Sheikh Jarrah to house 28 Palestinian refugee families.
The Jordanian custodian plays a pivotal role in this story, at least for the Israelis. Jordanian and Israeli law both inherited the idea of a “custodian of enemy property” from the British. In 1939, in the first days of World War II, the British parliament passed the Trading with the Enemy Act, which placed all property owned by individuals from Axis countries throughout Britain and its far-flung empire into the hands of a special state custodian for the duration of the war.
After the 1948 war, Jordan and Israel did the same. Jordan confiscated all properties of Jews who fled areas that came under Jordanian control; Israel’s Custodian of Absentee Property took hold of the properties of Palestinians who fled from areas that would become Israel in that war.
And the two custodians acted in identical ways with the properties they came to possess, at least at first. By law, in Jordan as in Israel, the custodian cannot take ownership of the property, but it can transfer ownership from original owners to new ones. Jordan did so en masse. It handed title to Jewish-owned properties under its care to Palestinians, many of them refugees from Israel.
And here the Sheikh Jarrah story begins — in an apparent misstep by the Jordanian custodian: In nearly every case in which Palestinians settled in formerly Jewish properties, Jordan’s custodian handed formal ownership to the new residents. But not in Sheikh Jarrah.
There is evidence that the custodian intended to transfer title, and some legal experts have argued over the years that Jordan’s transfer of control over the properties amounts to a transfer of ownership. Jordan itself has repeatedly claimed, including in April of this year, that it did so. But a series of Israeli courts, sometimes basing their rulings on the documentation provided by Jordan, have ruled that unlike in other cases, ownership was never transferred.
In the Israeli telling, that apparent mistake is the historic crux of the case, and for a simple enough reason: In 1970, three years after Israel won control over the area from Jordan in the Six Day War, Israel’s Knesset passed a law that formally recognized every transfer of ownership from Jew to Palestinian carried out by the Jordanian custodian.
The Legal and Administrative Matters Law stipulated that Israel’s General Custodian, a body in the Justice Ministry that takes control of forfeited properties, would be handed control of all properties still held by the Jordanian custodian — but not those properties already transferred to someone else.
The logic of that mass-acquiescence to Jordanian confiscation of Jewish property is clear. Some lawmakers, of course, were seeking to preserve the rights of Palestinian residents in those properties, but the broad support, including from the government, for that blanket recognition was self-interested: Israel’s own custodian had done a lot of transferring of ownership too, primarily of absentee Palestinians’ properties within Israel to newly arrived Jewish refugees in the years after 1948. It was hardly in Israel’s interest to create a precedent that made such transfers reversible.
Yet while Palestinians generally had their ownership recognized by the 1970 law, the families in Sheikh Jarrah, who could not prove ownership in Israeli courts, did not receive that recognition.
That’s why Israeli officials dismiss out of hand claims of discrimination, such as the New York Times’s charge that in East Jerusalem, “Jews are allowed to reclaim property that was under Jewish ownership before 1948,” but “Palestinian families have no legal mechanism to reclaim land they owned in West Jerusalem or anywhere else in Israel.”
To the Israeli mind, such accusations compare apples and oranges in an effort to crowbar an accusation of discrimination where it doesn’t belong. Palestinian refugees cannot reclaim properties within Israel for the same reason most of the 20th century’s refugees can’t reclaim properties in their former countries — including hundreds of thousands of Jewish refugees who fled the Arab world in those years. And for the same reason, Jews have no claims on properties handed away by the Jordanian custodian.
From the Mughrabi Quarter to Sheikh Jarrah: Exceptions to the rule
Sheikh Jarrah’s residents are suffering, Israeli officials (all of whom declined to speak on record) readily admit, but their suffering is the tragic exception to the rule of across-the-board Israeli recognition of Palestinian ownership of formerly Jewish homes.
Those who seek to influence Israeli decisionmakers on the Sheikh Jarrah case must grasp that the aforementioned Israeli claim that the Sheikh Jarrah evictions are a “private real estate dispute” is no mere propaganda. It is earnestly believed.
As already noted, Sheikh Jarrah is the exception to a broad Israeli acceptance of Jordanian title transfers. It is also the exception to five and a half decades in which no Palestinians have been mass-displaced from any part of East Jerusalem.
Sheikh Jarrah is the exception to a broad Israeli acceptance of Jordanian title transfers. It is also the exception to five and a half decades in which no Palestinians have been mass-displaced from any part of East Jerusalem
On June 10, 1967, the last day of the Six Day War, the freshly victorious IDF found itself suddenly in control of the Temple Mount and the Western Wall, the holiest sites in Judaism. It was a cathartic moment, a restoration, if only because of how the Jewish holy sites were treated under Jordanian occupation when the Jewish Quarter was demolished and Jews were denied access to their holy sites.
To open up the sites to Jewish visitors once more, officials on the ground decided to raze a small, cramped neighborhood of some 130 homes that fronted on the Western Wall, the so-called Mughrabi Quarter. It was an act of blatant mass-displacement, without due process or even official approval, that caused consternation even among Israeli officials. It was also the last act of mass-displacement of Jerusalem’s Palestinians. Jerusalem’s Palestinian population has grown fivefold in the 54 years that followed, from fewer than 70,000 to over 350,000.
To Israelis, therefore, Sheikh Jarrah is an exception in every sense. It is not seen as representative of the Palestinian experience in East Jerusalem since 1967, and attempts to depict it that way are, for Israeli officials, merely another dismal, ignorable chapter in the never-ending propaganda wars.
The quiet war
Then there’s the Palestinian experience.
It hardly needs to be said that none of the above is any comfort to the Palestinian families in the neighborhood who have spent the better part of five decades fighting for recognition and against eviction in the Israeli courts. They are not Israeli citizens. They do not feel protected by the institutions of the Jewish state, and they do not really believe that the ideologically driven private Jewish groups suing for the properties and bent on their displacement are not backed by the Israeli state.
The legal fight over the properties began almost immediately after the passage of the 1970 law, which both recognized Jordanian title transfers and allowed Jewish former owners of East Jerusalem properties to reclaim those properties in cases where the Jordanian custodian had failed to transfer ownership.
In 1972, the two Jewish trusts that had owned the sites since 1876 applied to the Israeli Custodian General to register their ownership. They then demanded the eviction of the Palestinian residents who had “squatted” there for the previous 16 years.
The Palestinians’ response to the Israeli courts was slow in coming, and it took some years before they made a coherent claim to being valid owners of the land.
The court cases that ensued dealt with complex technicalities of property law, with the legal nature of custodianship, with the weight that Jordanian state actions should carry in Israeli jurisprudence, and on and on. The Palestinian claims were also varied, including the argument that Jordan had, in fact, transferred title, and that the Jewish trusts’ 1876 purchase of the land was faulty and did not grant them original ownership.
But the bottom line at every turn was relatively simple: The Palestinian families failed to show ownership, and even the most sympathetic Israeli judges found no legal cause for ruling against the trusts.
In 1982, the attorney for the Palestinian families accepted a settlement that recognized the trusts’ ownership but granted the residents “protected tenant” status, making it very difficult to evict them as long as they paid a negligible rent and kept up the properties.
The residents rejected the settlement, saying they had been misled by the attorney, and refused to pay rent before or since.
Then came the next dramatic turn in the case, when the fight over the Sheikh Jarrah homes left the narrow confines of a tragedy-riddled land dispute born in the chaos and displacement of war and became part of a broader battle over identity, demographics and the future of Jerusalem.
In 2000, an Israeli corporation called Nahalat Shimon Ltd. was established as a subsidiary of a Delaware-registered American corporation also called Nahalat Shimon. Three years later, in 2003, Nahalat Shimon Ltd. bought the rights to the Sheikh Jarrah plots from the by-then mostly defunct Jewish trusts for some $3 million.
According to journalist Uri Blau in Hashomrim, an Israeli investigative journalism website, the money came from Holland, the legal work was carried out by a New York law firm, but the ultimate identity of the donors and stakeholders in Nahalat Shimon Ltd. — that is, the identity of the human beings actually claiming ownership in Sheikh Jarrah — remains unknown.
Those individuals went to a lot of trouble to hide themselves. Nahalat Shimon Ltd. is the bottom rung of a web of companies registered in different countries all intended to hide the parties who are behind the expensive legal effort to evict the Palestinian families. Its representative in the legal proceedings in Israel, the investigation revealed, is Tzahi Mamo, a longtime settlement activist who has spent the better part of three decades establishing front companies for the purchase of land and properties from Palestinians throughout the West Bank and East Jerusalem.
So while Nahalat Shimon Ltd.’s owners are hidden, its intentions are not.
From 2003 on, the Israeli claimants to Sheikh Jarrah are no longer former owners, no longer individuals or organizations connected to the old pre-state Jewish community of Jerusalem that was itself upended by the 1948 war, and no longer able to claim that the dispute is purely over real estate.
None of this has any bearing on the narrow legal issue. The ideological view of one side in a property dispute isn’t relevant to the question of ownership. Nor does it change much for Palestinian ideologues and spokespeople, who have little sympathy for the Jewish side’s past suffering or for any ethical or political nuance represented in the change. But the ordinary Palestinians who live in those homes felt the change viscerally. A demand for their eviction that they viewed as unfair had transformed into ideologically driven predation.
A quiet war was underway, and it had come to them.
The Klugman report
In October 1991, a group of far-right Jewish activists abruptly entered and claimed ownership of several Palestinian homes in the Wadi Hilweh part of Jerusalem’s Silwan neighborhood. The move made headlines and drew furious responses from the Israeli left.
Less than a year later, in August 1992, the newly elected prime minister Yitzhak Rabin ordered the establishment of a high-level committee to probe how right-wing groups had obtained legal rights to homes deep within Palestinian neighborhoods. The committee, headed by Justice Ministry director-general Haim Klugman, was specifically charged with determining if state bodies were helping them to do so.
The report produced by that committee horrified Rabin and led to a quiet crackdown on such activities in the years that followed. Among its findings, the Klugman committee determined that the Custodian General had collaborated with the Jewish groups to declare homes in Silwan and elsewhere “absentee property” without visiting them, without determining if they were occupied or even clearly mapping out the properties, and often on the basis solely of documentation submitted by the very activist groups that sought to claim the properties.
In specific cases that reached Israeli courts, the committee report noted, the custodian admitted that a determination was made that homes were not owned by their Palestinian occupants solely on the affidavits of a single individual paid by the activist groups to submit said affidavits. Homes were declared “absentee” and seized by the custodian without ever notifying or granting any opportunity for appeal to their Palestinian occupants and longtime owners. Several such cases cited in the report were later overturned by the courts, whose rulings harshly criticized the conduct of the custodian.
The Klugman report called the custodian’s actions “defective in the extreme” and detailed an apparently systematic effort by the custodian in those years to effectively rob Palestinian families of their homes in collaboration with right-wing activist groups seeking to take them over.
The report was submitted to Rabin’s cabinet in September 1992, and then-attorney general Yosef Harish ordered an end to the practices detailed by Klugman. But crucially, no effort was undertaken by the government to return the properties (though courts intervened in some cases when Palestinian residents appealed the seizures), no meaningful steps were taken to punish any officials for the apparently illegal actions taken in previous years, and no mechanism was put in place to ensure the custodian’s behavior wasn’t repeated. In fact, a State Comptroller inquiry into the case, initially ordered by the cabinet in 1992, was subsequently buried by the Netanyahu government in 1998 and has never been made public.
To a Palestinian resident of East Jerusalem, then, there’s more than mere distrust of the Israeli government’s intentions at work. Israeli state bodies have a history of working closely with private right-wing activist groups to seize control of Palestinian homes in areas of strategic significance around Jerusalem’s Old City, even, at times, in blatant violation of Israeli laws and basic due process. That, at least, was the view of the Israeli government’s own inquiry into the custodian’s conduct in the 1990s.
The State of Israel goes MIA
And, say Palestinians, it’s now happening again.
Sheikh Jarrah is a small place. Just thirteen families face displacement in the specific court case that has drawn so much recent international attention and sparked clashes and violence at the site in May.
But those families are not alone. Israeli officials insist that no mass displacement of Palestinians has taken place since 1967; they’re right. But things have been changing in recent years. Slowly, in piecemeal fashion, largely unnoticed or actively ignored by Israeli officials, property disputes have been initiated in recent years against hundreds of Palestinian households in the sprawling Silwan area, a series of neighborhoods surrounding the Old City.
If one zooms out of the narrow Sheikh Jarrah case to include the hills and valleys around the Old City, then according to UN figures based on Palestinian reports, some 218 Palestinian households with 970 people living in them now face some stage of eviction proceedings against them. Left-wing activist groups cite even larger numbers. But even if the real figure is half that, the overall picture amounts to an unprecedented and concerted campaign of displacement — all privately funded and administered, and requiring only occasional, quiet support from a small number of anonymous Israeli bureaucrats at key junctures.
The overall picture amounts to an unprecedented and concerted campaign of displacement — all privately funded and administered, and requiring only occasional, quiet support from a small number of anonymous Israeli bureaucrats at key junctures
The link between official Israel and the private companies pursuing the legal cases is tenuous enough that the state bureaucracy, including the political leadership, can honestly claim they have no role in the evictions and place their faith in the courts to sort things out.
But the state, even in its hard-won ignorance and carefully maintained distance from the proceedings, remains a central player. It has policy options that it has pointedly refused to exercise in defense of East Jerusalem’s Palestinians.
While many Israelis are genuinely flummoxed at the accusation that the Palestinians are discriminated against when it comes to property law, it is in the burgeoning new privately run campaign of eviction orders, and not in legislation from the 1970s, where the discrimination becomes hard to avoid.
From the cases described in the Klugman report to the new eviction proceedings in Silwan and Sheikh Jarrah, the Palestinian residents have learned they can wake up one morning to discover that their home of six decades is no longer theirs.
There’s an Israeli legal principle borrowed from an English law dating back to the middle ages known as “market overt,” or takanat hashuk in Hebrew. The principle concerns the unwitting purchase of stolen goods. If someone buys an item from a seller without knowing it was stolen from a third party and does so in an open, designated marketplace in the daytime — that is, in conditions in which it’s unreasonable to assume it was stolen and where the victim of the theft could have found it had they gone in search of their lost property — then the new owner whose money had already been handed to the long-gone thief retains ownership.
Within the Green Line, the Israeli custodian and the courts have repeatedly upheld the “market overt” principle for absentee property. That is, if a Palestinian-owned home within Israel was deemed abandoned after 1948, taken by the custodian and handed to some newly arrived Jewish refugee family, only to have the Palestinian owner show up and demand the home be returned to them on the correct grounds that they were never “absentee” — that Palestinian owner would discover that the custodian’s transfer was final, even if it was based on incorrect information when it was carried out. The Palestinian could claim compensation, but not the lost property.
In East Jerusalem, things don’t work that way. Palestinian residents don’t enjoy the security afforded by the assumption of takanat hashuk and the tendency of Israeli authorities to favor stability over the relitigation of long-ago injustices. In East Jerusalem, new information, even from self-interested parties and without meaningful verification or fact-checking, can become a pretext to issue new claims of ownership six decades on — and not even by original owners, but by activist groups designated by the custodian as trustees of the properties being seized.
What does it mean that unknown actors who have gone to a great deal of trouble to hide behind shell companies can start buying up rights to homes in some of the most delicate and contested real estate in the world?
Then there’s the fact that homes are being claimed by unknown actors. It’s a fact that should concern Israeli policymakers more than the Palestinian residents. What does it mean that unknown actors who have gone to a great deal of trouble to hide behind shell companies can start buying up rights to homes in some of the most delicate and contested real estate in the world?
This isn’t a legal question, but a policy one. What if Saudi princes, for example, were to take note of the methods used by Nahalat Shimon Ltd., form shell companies abroad, and begin buying up properties in Jerusalem and throughout Israel to hand to Palestinians? Would the Israeli government continue to sit idly by and trust in the wisdom of the courts while such secretive private efforts were deployed to reshape the demographics of contested places?
More to the point, given the tensions and violence surrounding the Sheikh Jarrah evictions, the Israeli state can fairly ask itself how much power it wants to give unaccountable foreign actors to set Jerusalem on fire at their whim.
As one former senior Israeli official put it bluntly, “the State of Israel should not allow the future of East Jerusalem to be dictated by the agenda of individual ideological actors. I don’t think East Jerusalem should be the Wild West for anybody.”
That view — that the state has too much at stake in Jerusalem’s holy center to tolerate private efforts of the sort being advanced by Nahalat Shimon Ltd. — was once mainstream on the Israeli right. When a group of right-wing activists took over homes in Ras al-Amud in September 1997, then-prime minister Benjamin Netanyahu, worried about Palestinian and international opposition, prevented the takeover and insisted that he would not let private actors determine Jerusalem’s fate or undermine Israel’s relationship with the US or the international community.
“The entry of Jewish families into Ras al-Amud is bad for Jerusalem and bad for the State of Israel,” Netanyahu told Israel Radio at the time. “While the families legally entered property owned by Jews, only the government will decide on settlement in sensitive areas.”
Or as Israel Radio quoted then-foreign minister David Levy’s view: “The entry of the Jewish families into buildings in Ras al-Amud is unnecessary and harmful. The action taken by these individuals is unacceptable, especially as we are striving to overcome obstacles in the peace process. Every Jew has the right to live in Jerusalem, of which Israel is sovereign, but the Israeli government is responsible for maintaining public safety for Jews and Arabs alike, and not to promote ferment and tension.”
To the Palestinian residents of Sheikh Jarrah, the growing spate of eviction notices in East Jerusalem are evidence that their displacement begun in 1948 never truly came to an end. But even to a great many Israeli officials speaking off the record, the new troubles aren’t a question of left vs. right or Palestinian vs. Israeli. It’s about stability and basic governance.
Sheikh Jarrah is, in addition to its deeper meaning and significance to each side, also simply a property dispute born in the social and legal chaos of 1948. But for the past two decades, it’s been at the heart of a wholly different, almost entirely private campaign by ideological actors to make Palestinian homeownership in Jerusalem tenuous. That campaign carries consequences for Palestinians, Israelis, and Israel’s policy options both in Jerusalem and on the world stage. And the Israeli government’s dogged indifference has granted private and often unknown ideologues the power to determine the timing and scale of any fallout.
“We claim sovereignty in East Jerusalem,” complained one official. “We should start acting like it.”