New legal opinion could change the fate of the Sheikh Jarrah and Silwan eviction cases

A group of Israeli international law experts have filed a brief with the Israeli Supreme Court stating a Palestinian family from Silwan facing a settler eviction application must remain in its home



A group of world renowned Israeli experts on international human rights law, have filed an application to submit an amicus curiae brief in the first High Court case concerning an eviction application brought by settlers against a Palestinian family from Batan al-Hawa in Silwan. This case will have implications for hundreds of other residents facing eviction.

The amicus curiae brief prepared by prominent Israeli experts on International Law, Prof. Eyal Benvenisti, Prof. Orna Ben Naftali, Dr. Natalie Davidson and Prof. David Kretzmer, represented by Adv. Michael Sfard and Adv. Hagai Benziman, is relevant to other eviction applications in Silwan and in Sheikh Jarrah where over 1000 people are at risk of being displaced by settlers. The opinion presents hitherto unheard arguments rooted in international human rights law.

According to the brief, the Palestinian residents’ human right to housing, includes a right to continue living in properties that have served as their homes for decades, and that they have developed certain property rights to these homes. The brief addresses an approach that has emerged in international jurisprudence on human rights law which puts an emphasis on group vulnerability of occupants facing eviction and institutional, systemic discrimination against them. Where these are present, in certain circumstances, the occupants’ rights, stemming from the human right to housing and specifically, to live in their home and their family’s home – trump the right of the original owner or their substitute to regain possession of the property.

The brief reaches the conclusion that in the Duweik case, the occupants’ property rights and their right to housing supersede the right of the settlers acting on behalf of the pre-1948 original owners to receive possession of the property, based on the following:

1. The fact that Palestinian residents of East Jerusalem are underprivileged, vulnerable and subjected to discrimination in every aspect of life, and particularly the fact that Israeli law on the restitution of property that changed hands due to wars, openly and deliberately discriminates against them;

2. The fact that the family entered the property in good faith and/or in accordance with the law applicable at the time, and has developed a legitimate expectation to continue residing in it permanently and without interruption;

3. The imbalance between the devastating harm the family would suffer and the minor damage the Benvenisti charitable endowment (represented by the settlers), which claims ownership of the property, would sustain, which clearly tips the scales in favor of the family;

In other words, according to the brief, even if the court finds the settlers do, in fact, have ownership, they are not necessarily entitled to remedy in the form of the families’ eviction from their homes, but rather to compensation from the state.

Palestinian residents of Batan Al-Hawa, Silwan, 2018. All of them are under threat of eviction. Photo: Emil Salman, Haaretz.

Peace Now organization, who initiated the amicus brief: There’s an elephant in the room, and the lofty legal debate in the Sheikh Jarrah and Batan al-Hawa eviction cases ignores it, producing a legal distortion and an egregious injustice. This is not just another real estate dispute between equal parties. This is an organized, programmatic effort, with ample governmental support, to dispossess hundreds of Palestinians from their homes and replace them with settlers. This amicus curiae brief can help the court see the bigger picture, deliver justice and avert the iniquity.

Prof. Eyal Benvenisti: “This is not a private dispute because it involves governments, both the Jordanian government and the Israeli government. The Israeli government enacted the law by virtue of which the land was transferred from the Jordanian custodian to the Israeli custodian. The Israeli custodian returned the land to the original owners without checking the rights in the land, without asking the families who live there, thus allowing the process that deprives the families of their rights.”
“In terms of international law, there is an institution called state responsibility. At some point, the state must be held accountable for human rights violations. A court ruling can also involve the state in violating human rights and creating international responsibility for the violation.”

Adv. Michael Sfard, who represents the group of experts: “For years, judges have been considering the eviction cases in East Jerusalem under the assumption that they involve a dispute between a landlord and a tenant and therefore, proof of ownership on the part of the settlers necessarily triggers a countdown to eviction. The brief reintroduces the context of the legal proceeding – dispossession by the stronger, dominant group against a vulnerable, discriminated community whose members, in some cases, entered the properties for lack of choice and always according to the applicable laws and with a legitimate expectation that the property will be their permanent home. I hope the court takes the opportunity provided by the brief to bolster and defend the occupants’ right to continue living in their homes – a right acknowledged by international human rights law.”

Much of international law applies fully and directly in Israel and constitutes an integral part of the domestic local legal system. In addition, the courts must interpret Israeli law – to the extent possible – in a manner congruent with the provisions of international law even without direct application (we note that the brief does not address international criminal law or the laws of war). So far, all deliberations in cases concerning evictions in Sheikh Jarrah and Batan al-Hawa have focused on questions arising from private law (matters of property, charitable endowments, limitations, protected tenancy, etc.), as if the parties were equal sides in a real estate dispute.

The brief provides a new perspective, uncovering the full picture and the context for the eviction applications: The Palestinian family in question belong to a vulnerable, discriminated group, both in terms of legal rights and in terms of policy and resources. They are facing an orchestrated effort, with state backing, to dispossess them of their homes. The family entered the properties lawfully (they are not trespassers) and have lived in the homes for generations – in some cases for more than 60 years. In such circumstances, according to international human rights law, the families have rights to the properties in which they live, and, if certain conditions are satisfied, such rights trump the rights of the original owners to regain possession of the property. Many examples of such cases from around the world are available.



Signatories to the opinion:

Prof. Eyal Benvenisti, currently serves as Whewell Professor of International Law at the University of Cambridge and directs the Lauterpacht Centre for International Law. Prof. Benvenisti is a guest lecturer at the Faculty of Law of the Hebrew University of Jerusalem and co-editor of The British Yearbook of International Law and a member of the Institut de droit International.

Prof. Orna Ben-Naftali, is the Emile Zola Chair in Human Rights at the Haim Shtricks School of Law in the College of Management Academic Studies. Prof. Ben-Naftali is an expert in international law with an emphasis on humanitarian law, laws of Occupation, International Human Rights Law, International Criminal Law and Law and Culture.

Dr. Natalie Davidson is a lecturer in the Faculty of Law of Tel Aviv University, where she teaches and researches international human rights law. Dr. Davidson was a research fellow at the Rapoport Center for Human Rights and Justice at the University of Texas and a postdoctoral fellow at the Minerva Center for Human Rights at the Hebrew University.

Prof. David Kretzmer, Professor Emeritus of International Law at the Hebrew University of Jerusalem. Prof. Kretzmer has previously served as a member and Deputy Chairman of the UN Human Rights Committee under the International Covenant on Civil and Political Rights.