By offering a compromise, top court justices showed they did not want to discuss the legal substance of the case nor order the eviction of hundreds of Palestinians from their homes, especially now
An extraordinary hearing was held in Room D of the Supreme Court of Justice on Monday. Outside were scores of journalists, diplomats, left-wing activists and a small group of right-wingers. There were also scores of Sheikh Jarrah residents who had arrived in a last-ditch effort to prevent eviction from their homes.
At the start of the proceedings, the justices sought in any way possible, albeit with decidedly moderate pressure, to bring the two parties to a compromise deal.
The thrust of the arrangement Justices Isaac Amit, Daphne Barak-Erez and Noam Sohlberg sought would let the Palestinian residents remain in their homes with the status of protected tenants. Moreover, they would be recognized as first-generation protected tenants, meaning that their children and grandchildren would be able to stay in the houses. In exchange, they would pay 1,500 shekels ($465) a year to the company Nahalat Shimon, which has been seeking to evict them.
The problem isn’t the money but the question of recognizing Nahalat Shimon as the owner. The Palestinians refuse to. For their part, representatives of the settlers demanded explicit Palestinian recognition of ownership of the land under the buildings and a promise not to raise further claims in the future. The Palestinians resolutely refused.
The arrangement the court proposed had other problems, for example, who would be the recognized tenant of each property, because it was often the case that a number of brothers inherited a house but only one of them can be designated a protected tenant.
Another problem is that protected tenants aren’t wholly protected from eviction. For instance, if the settlers are able to get a construction permit in the framework of the P’nui U’Binui (urban renewal) program, they can order the residents out in exchange for providing them with substitute housing. Justice Amit, the chairman of the three-judge panel, was optimistic that this problem could be solved by “constructive diplomacy.”
“We will rule that the petitioners declare that they are the protected tenants and that the respondent is registered as the owner, and the issue is resolved. This [compromise] will provide breathing space of a few good years until then either there will be a real estate agreement or peace will come. We do not know what will happen. Is it possible to sum up this matter?” Amit said to the two sides.
It was clear that Amit and his colleagues didn’t want to sign an order evicting the families from their homes. “What we are saying is let’s bring this down from the level of principles to a pragmatic level. People should be able to continue living there – that’s the idea – to try and reach a practical arrangement without making declarations of one kind or another. We’ve seen how interested the media are in this. We want a practical solution,” said Amit.
But as the hearing progressed, the justices found it harder and harder to bring the two sides together. In the end, they responded to the request by the Palestinians’ lawyers, Sami Arshid and Salah Abu Hussein, to break for consultations. But the court told them they couldn’t leave the courtroom. The justices expressed concern that if they were allowed to leave they would be subject to outside influences that would cause them to reject any compromise.
“You will remain here under house arrest but without electronic handcuffs,” joked Amit. The non-Palestinian spectators, who have never experienced arrest or house arrest, perhaps enjoyed the joke more.
After the hearings resumed, however, the justices despaired of compromise. Instead, they instructed the two parties to begin making their cases over the substance of the legal dispute itself. That was unusual since the Palestinians’ claims have already been rejected for a variety of technical reasons – statute of limitations, a lack of public interest in pursuing the litigation, presumption of administrative correctness and others.
Arshid and Abu Hussein jumped at the opportunity and began to detail the difficulties and illogic of a foreign company controlled by right-wing activists becoming the owners of an East Jerusalem neighborhood. All the eviction orders to date have been based on two foundations: The first is the registration of the land as Jewish in 1972 and the second is the hearings that took place in the Supreme Court in the 1980s during which the Palestinians recognized Jewish ownership of the land. Since then, in nearly all the legal proceedings, it has been claimed that the Palestinians were not entitled to appeal either of these foundations. This time, they were allowed to.
Arshid and Abu Hussein claimed, for example, that the 1972 registration was done by accident or fraudulently, that the settlers have no documents attesting to their ownership, that the Israeli Justice Ministry’s Custodian General didn’t have the authority to award control of the land to Jews, that the government of Jordan transferred control of the land to them and that even Yaakov Shapira, when he was Israeli justice minister in 1968, promised that even if the land was restored to the Jews who controlled it before 1948 the tenants wouldn’t be evicted.
Ilan Shemer, representing Nahalat Shimon, rejected all the Palestinian claims. He asserted that the current Sheikh Jarrah residents aren’t necessarily connected with those who were settled in the place by the Jordanian government. He noted that the defendants had revised their claims over the years and each time raised new ones in their defense.
“You can’t claim there was fraud 50 years later,” he said and added, “They want us to overturn every ruling since the creation of the world.”
As the hearings proceeded, it was clear that the judges were even less happy to make a decision and even more determined to get the parties to agree to a compromise. “Contrary to what we wanted, you have both sought to bring this to court. But our hope is not yet lost,” said Amit.
The justices instructed the Palestinian side to present the court with a list of candidates for protected-tenant status. Most of those in court assumed that the justices’ intention was to use the list in the next hearing to pressure the parties to compromise, thereby avoiding a decision to evict the residents.
In the end, the Sheikh Jarrah legal battle revolves around one question. Is it simply a real estate dispute, as the settlers assert, or is it part of a campaign by the state – its official arms (the custodian general, Land Registry, the Israel Police) and its unofficial ones (the Nahalat Shimon Company) to dispossess the Palestinians and Judaize the neighborhood? If it’s the latter, it’s a campaign based on discrimination and unjust laws.
Needless to say, for the rest of the world, apart from Israel, the Palestinian viewpoint is the one that is accepted; the view that it’s a private dispute is rejected.
The three justices struggled to decide where the court stood on this question. On the one hand, they are clearly not happy reopening a discussion on the legal substance of the affair. On the other, they also very much do not want to order the eviction of hundreds of people from their homes – at least not now, when Sheikh Jarrah is the focus of media and diplomatic attention.
But the Palestinians also have a problem. Sheikh Jarrah has become a powerful symbol for the Palestinian public. Its residents have become culture heroes, a status that makes it difficult for them to agree to a compromise, even if it ensures they will not be evicted.
The pressure on them in the time that remains until the next hearing will be immense. It appears that the justices are aware of that as could be seen in Justice Amit’s parting wishes to the lawyers on Monday: “If we meet again, may it be with fewer people. Not that this is a problem – we’re willing to rent Teddy Stadium. But everyone realizes what the problem is.”