On Thursday (21/7/22), the Supreme Court issued a ruling on the request to appeal by the Duweik family from Batan al-Hawa of Silwan and stated that the case should be returned to the Magistrate’s Court and that the General Custodian should be included in the hearing. This means that, for the time being, the eviction of the Duweik family from their home in Batan al-Hawa in favor of the settlers has been prevented. This decision will likely have an impact on the other pending eviction cases against dozens of Palestinian families in Batan al-Hawa.
In fact, the court obliges the government to deal with the issue. The position of the General Custodian – which is a government body – in the hearing at the Magistrate’s Court will be crucial in determining the fate of hundreds of residents of Batan al-Hawa who are under threat of eviction.
Peace Now: As in the case of Sheikh Jarrah, the court had to do the work for the Israeli government and prevent the injustice. This is a political process of dispossession and settlement done through legal means, and the judges criticized the government for refraining from intervening or expressing a position. Hundreds of residents in Silwan are in unprecedented danger of eviction and it is time for the government to stop the mass dispossession.
The lawsuit against the Duweik family is part of a series of dozens of eviction lawsuits filed by members of the settler association Ataret Cohenim against about 84 Palestinian families who live in Batan al-Hawa in Silwan, placing a community of about 700 people at risk of eviction. All the lawsuits are based on the claim that at the end of the 19th century, the land was owned by a Jewish endowment. More than a hundred years later, and in the name of this endowment, settlers are asking to evict the Palestinian families and replace them with settlers.
The Duweik family, for example, purchased the land in 1965 when Silwan was under Jordanian rule. The family began building their house before Silwan was annexed to Israel in 1967. The Magistrate’s Court, which ordered the eviction of the family, did not deny the purchase, but stated that even though they purchased the land legally, and that over fifty years have passed since the purchase, and notwithstanding the fact that no one contested their ownership for decades, the ownership of the Jewish endowment from more than 120 years is more substantial. The family appealed this verdict to the district court, and after it was rejected, they submitted the request to appeal to the Supreme Court, which was decided on Thursday.
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 stated 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.
The main points of the judgment
The main legal issue discussed in the eviction lawsuit against the Duweik family is the question of the Statute of Limitations: can the family be evicted even though over 50 years have passed since they purchased the land and began to live there, and is the Statute of Limitations not applied to the ownership of the Jewish endowment from more than 120 years ago.
Among other things, the question arises as to how the Statute of Limitations is affected by the fact that from 1967 to 2002, the property was managed by the General Custodian, which is a government body. This is in light of one of the sections of the Land Law (section 113b), which states that in the case of state lands, the time that passes should not be counted as part of the Statute of Limitations.
In addition, there is a question of whether it is possible to apply section 8 of the Statute of Limitations Law in this case, which states that the Statute of Limitations begins only from the moment the owner knows and can act on the matter (in our case, the settlers claimed that when the General Custodian managed the property, they could not act in order to evict and that it took them years to verify the identity of the people who live in the houses).
Regarding the Amicus Brief filed by experts in international law, the court ruled that there is no reason to require it, mainly because it was submitted at such a late stage of the procedure in the Supreme Court.
Three judges, three opinions
The three Supreme Court judges disagreed.
Judge Barak Erez ruled that setters cannot evict the Duweik family after so many years due to the Statute of Limitation, and she accepted the family’s appeal. The judge ruled that during the years (1967-2002) that the General Custodian managed the property, it was not considered “state land.” Therefore, section 113b of the Land Law did not apply, and those years can be counted for the Statute of Limitations. The judge also ruled that section 8 of the Statute of Limitations Law did not apply in this case either, because the endowment could have been applied to the property long before the claim was filed; hence, the claim is time-barred.
Judge Mintz stated that there is no room to interfere with the decisions of the Magistrate and District Court, and therefore, there is no room to grant permission to appeal. Concerning the appeal, he states that the Statute of Limitations does not apply, and he concludes that the family must vacate their home for the benefit of the endowment.
Judge Amit stated that in order to determine whether the Statute of Limitations applies in this case, it is necessary to make an additional factual and legal inquiry and also to hear the General Custodian’s position on the matter. The judge states that while the property was under the administration of the General Custodian, it was indeed considered “state land.” However, the question of the applicability of section 113b of the Land Law depends on whether the property was always registered in the same owner’s name or whether there was a change in the registration. Only according to this can it be determined whether the lawsuit is time-barred.
In addition, the question of when the plaintiffs became aware of the grounds of the lawsuit and when they had the power to sue must be clarified, so it will be possible to determine whether Section 8 of the Statute of Limitation Law applies. Therefore, Judge Amit ordered the case to be returned to the Magistrate’s Court to clarify these questions and to involve the General Custodian in the discussion.
The final result:
Because of the three different opinions, Judge Barak Erez joined Judge Amit’s conclusion that the case should be returned to the Magistrate’s Court for further clarification, as stated above, and so it was decided by a majority of opinions.
The political facet of the case
“My ruling does not deal with the essential level … but with the procedural meanings of the passage of time” (Judge Barak Erez)
The settlers’ eviction claim is a political move to dispossess hundreds of Palestinian residents from their homes in Silwan with the aim of establishing a settlement. The legal means for the move is the use of the discriminatory law (Legal and Administrative Matters Law of 1970) which allows a “right of return” to Jews who lost their property in East Jerusalem in 1948, as opposed to another law (Absentees’ Properties Law of 1950) which denies such a right to Palestinians who lost property in 1948 in the west of the city.
The judges did not include the political circumstances in the legal considerations themselves and, as mentioned above, chose not to refer to the Amicus Brief filed by international law experts who believed that the political and social circumstances of the lawsuit are part of the legal considerations that must be taken into account.
At the same time, each of the judges mentioned the exceptional circumstances and noted them in his judgment, in a message to the government and the Knesset expressing the court’s discontent with the situation.
Judge Barak Erez directly criticized the government that chose not to intervene, even though the court demanded from it to intervene in the case and express its position:
“This is another case in which a high-intensity conflict is being waged on a subject of public sensitivity, when the place of the state and its authorities was absent in the process in a way that unfortunately raises questions. One can get the impression that in the many years in which the properties were assigned to the General Custodian, their management was done lazily. Anyway, the question of the Statute of Limitations arose and sharpened, which as mentioned, has projection on other cases, but the Attorney General refrained from getting into the thick of this issue.” (section 85 according to Judge Barak-Erez).
Judge Amit explicitly stated the problematic nature of the discriminatory system of laws that prescribes one rule for Jews and another rule for Palestinians under similar circumstances:
“As my colleague pointed out in the Sarhan case, “Evacuating people who have been sitting on the land for decades – some of them even without knowing that the land belongs to others – causes human hardship […] The right to property is important, but it is also important to protect the roof of people’s homes and aspects of reliance on the state of affairs” (ibid., paragraph 61).
The sense of discomfort in the present case is heightened given that the endowment’s proprietary right remained intact after the War of Independence, since the Jordanian Commissioner of Enemy Property did not transfer the right to others (although there were cases in the past when the Jordanian Commissioner transferred the rights to others, such as in the special circumstances of RA 2401/ 21 Ja’uni v. Nachalat Shimon Ltd. (March 1, 2022) [the Sheikh Jarrah case. Peace Now]. This, in contrast to the “mirror image” of the custodian of absentees’ properties, who in many cases transfers the absentee property to the development authority.” (Section 31 of Judge Amit’s opinion)
Judge Amit also highlights the fact that the Palestinian residents of East Jerusalem, who, unlike the Palestinians living in the West Bank, were annexed to Israel and are supposed to enjoy better protection of their rights under Israeli law, are actually in a worse situation than in the Territories:
“The application of Israeli law to East Jerusalem did not benefit the appellants, since the present case is discussed in the “slots” of the Statutes of Limitations and real estate laws in Israel, and as we have shown above, it was section 113(b) of the law that offends the appellants. This, in contrast to areas that are under the laws of the “Belligerent Occupation”, where the policy of the Israeli Custodian in Judea and Samaria region denies the release of the properties to their original owners, as long as a peace settlement is not reached (High Court of Justice 3103/06 Valero v. the State of Israel (February 6, 2011)).” (Section 31 according to Judge Amit ).
Judge Mintz chose to refer to the historical context of the Jewish settlement in Silwan before 1948 and the deep connection of many Jews to this place. He described in detail the economic adversity that led to the establishment of the Jewish settlement in Silwan at the end of the 19th century, which ended for security reasons with the Jews leaving Silwan by order of the British Mandate government in 1938:
“Apparently the departure was in the body but not in the soul. The Jewish settlement on the slopes of the Mount of Olives was rooted in the hearts of the First Aliyah immigrants and it remains in the hearts of their successors to this day.” (Article 35 according to Judge Mintz).
It should be noted that Judge Barak Erez responded to this in her ruling and wrote:
“My friend, Judge Mintz concludes his opinion with an in-depth review of the history of Jewish settlement in the place at the end of the nineteenth century. The things are true, and I even stated their main points at the beginning of my opinion. There is no disagreement between us as to the importance of the history of the place.
But the complete picture of the sequence of past events is more complex than the one presented by my friend. The historical development did not freeze in the late 30s’ of the previous century, when my friend Judge Mintz sealed the events of the past. Since then, equally significant events have occurred: the establishment of the state and the declaration of Jerusalem as the capital of Israel, the War of Independence, the partition of Jerusalem and the application of Jordanian rule on its eastern side, and subsequently, after the Six Day War, the return of Jerusalem to Israeli rule and the application of the Israeli law in it. Furthermore, in the many years that have passed, additional changes have occurred that have affected the possession of the land and the complex factual picture as it is today. In any case, my ruling does not deal with the essential level of the many complexities involved, but with the procedural meanings of the passage of time. This is the nature of the Statute of Limitations .” (Section 91 according to Judge Barak-Erez)