Supreme Court Judge, Noam Solberg, outright rejected yesterday (10/9/24) the request for leave to appeal submitted by the members of the Gheith family from Batan Al-Hawa, against the decision to evict them from their home in favor of settlers. Three families of 15 people from Salem Gheith’s family have been living in the house for decades. Tomorrow (12/9/24) the Attorney General is supposed to submit the state’s position regarding the eviction claims of the settlers in Batan Al-Hawa in another lawsuit that is pending before a different panel of judges.
The eviction lawsuit is part of a larger effort to forcibly displace an entire community of approximately 700 Palestinian residents from this East Jerusalem neighborhood and to establish a settlement. The legal basis for these eviction claims is a discriminatory law that allows Jews to reclaim properties lost in the 1948 war, while another law prevents Palestinians from exercising the same right.
Peace now: “If this eviction is carried out, God forbid, it will be an injustice and a crime against a vulnerable population under occupation in East Jerusalem, leaving an indelible stain on the State of Israel. The government can and must stop the forced displacement of an entire community and the responsibility lies on its shoulders. The International Court of Justice (ICJ) specifically referred in its opinion to the system of discriminatory laws and the Israeli settlement policy in East Jerusalem and determined that it is a violation of international law.
Although the matter is political and the legal process is only the tool for its realization, it is important to emphasize that Judge Solberg’s decision stands in contrast to the decisions of other judges in the Supreme Court who have granted permission to appeal in similar cases. It seems that Judge Solberg is using his powers to prevent the discussion from reaching judges whose position is different from his own, precisely two days before the state’s position on the issue is supposed to be given to the court.”
Current Situation (September 2024): Approximately 80 Families Facing Eviction
Already Evicted:
14 families have already been evicted from their homes, with settlers moving in their place. Including two houses that the settler took in August (the Shhadeh house and Jawad Abu Nab’s house).
Awaiting Enforcement of Court Ruling:
The Salem Gheith family – 15 people. The decision of the Supreme Court yesterday to reject the request for leave to appeal ends the legal options to prevent the eviction through the court. If the government does not prevent the evacuation, settlers are expected to request the Execution Office to schedule a forced eviction with police assistance in the coming days or weeks.
Appeal Pending in the Supreme Court:
Families Abd Al-Fatah Rajabi (26 people), Um Nasser Rajabi (18 people), Jawad Abu Nab (7 people already evicted) and the families of Odeh and Shweiki have appealed to the Supreme Court after losing in the District Court. The appeals are still pending. In the case of Odeh and Shweiki the Supreme Court has requested the Attorney General to provide the state’s position on the legal issues raised in the case. The state’s position is supposed to be filed tomorrow (12/9/24), unless the state requests another extension.
Ongoing Lawsuits in the Magistrate’s Court:
There are ten additional eviction lawsuits that we know of against at least 12 homes, involving dozens of families and hundreds of residents. These cases are at various stages in the Jerusalem Magistrate’s Court before different judges (families including Basbus, Rajabi, Abu Ramouz, Duweik, and Sarhan).
One Law for Israelis; Another one for Palestinians
The basis for all the lawsuits is the same: the Legal and Administrative Matters Law enacted in 1970 by the Knesset stated that Jews who owned property in East Jerusalem and lost it in 1948 can receive it back from the Israeli General Custodian, even though all those Jewish property owners received alternative homes from the state as early as 1948. This is in contrast to the Absentees’ Properties Law from 1950, which states that Palestinians who lost their property in Israel in 1948 and became refugees would not be entitled to receive it back. Since the Legal and Administrative Matters Law was applied only in East Jerusalem and not in West Jerusalem, it only applies to Jews and not to Palestinians who lost their property in the same war and under similar circumstances.
For more information on the Legal and Administrative Matters Law – see here.
For more on the eviction procedures – see here.
International law prohibits the evacuation
In the advisory opinion of the International Court of Justice (ICJ) given last July, the court specifically referred to the Israeli settlement policy in East Jerusalem and the discriminatory system of laws, in particular the Absentees’ Properties Law, which results in the eviction of Palestinians from their homes in favor of settlers. The court ruled that this policy constitutes a violation of international law (see for example paragraphs 119, 122, 163, 196 of the opinion).
In one of the Batan al-Hawa lawsuits that reached the Supreme Court, a group of leading Israeli experts from the field of international law filed to the court an application to submit an amicus curiae brief. 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.
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.
The court read the brief but did not refer to it in its decision. The court returned the discussion of the question of ownership for another discussion at the Magistrate’s Court.
For more on the opinion from international law, see here.
The matter is not legal but political; the government can stop the eviction
The settlers have an interest in presenting the issue as a purely legal matter, of two parties arguing over ownership of the property and the court deciding. But denial and blindfolding are needed to ignore the context and mechanism established to exploit discriminatory laws for the purpose of realizing settlement political goals. This is a political issue with far-reaching implications for the entire State of Israel and the future of the conflict, and the court is only the tool to implement the move. Therefore, the Israeli government has a responsibility and an obligation to intervene.
1. To express a legal position in the Batan Alhawa cases – the court asked the state to submit its position on several occasions in the Batan Al-Hawa cases. The government could express a legal position according to which the residents of Batan Al-Hawa have rights to continue to live in their homes even though the official ownership belongs to settlers. This position can be based, for example, on international law, which is part of the system of legal considerations in Israel – see the legal opinion submitted on the matter.
2. The government can expropriate the land – the government can expropriate the land for public purposes (while compensating the settlers). Since 1967, the Israeli government has expropriated about a third of East Jerusalem lands to build 55,000 housing units for Israelis. What was done for the benefit of the Israeli public with the expropriation of more than 20,000 dunams from Palestinians, can be done for the benefit of the Palestinian residents of Batan Al-Hawa with the expropriation of 5 dunams from settlers.
3. Change in legislation and policy – the Knesset can correct the injustice caused as a result of the discriminatory law by amending or repealing the relevant sections of the Legal and Administrative Matters Law (1970) on the basis of which all these eviction claims were filed.
4. The immediate way to prevent eviction is to avoid sending the police to assist in evacuation. Without the police, people cannot be evicted from their homes. It is the police who determine the appropriate timing for carrying out various tasks in accordance with the security situation and considerations of public peace. The police can determine that for now, for reasons of security and public safety, the evacuation should be avoided. Such a position has been taken in the past and obtained the approval of the Attorney General (in 1991 when the police prevented the Elad settlers from entering houses in Silwan, and in 1999 in an Attorney General opinion on a property in Ras Al-Amoud). see more here.