The Washington PostDemocracy Dies in Darkness

Israel’s Supreme Court could stop evictions of Palestinians

The laws used in neighborhoods like Sheikh Jarrah are outdated

Israeli border police confront residents of a home in the Sheikh Jarrah neighborhood of East Jerusalem in May. Evictions there sparked protests and clashes, and eventually, Israel launched airstrikes on Gaza in response to rockets fired by Hamas. (Maya Alleruzzo/AP)
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The recent clashes between Israel and Hamas had their roots in protests in the East Jerusalem neighborhood of Sheikh Jarrah. Last month, the Israeli Supreme Court delayed a discussion about whether to uphold the eviction orders against a handful of Palestinian families there. But when the court does make its decision, it will reverberate far beyond one small, otherwise sleepy neighborhood.

The Israeli right-wing organizations that claim these houses have tried to paint this as a real estate dispute between private parties; Palestinians view the evictions as ethnic cleansing in a national conflict. But what most people don’t know is that at the core of this dispute sits two unjust, outdated Israeli laws. As a former high-ranking official in the Israeli state attorney’s office, I was tasked with implementing one of these laws. I used it minimally. The committee I sat on enforced just the section that allowed us to release property back to Palestinian owners, even as right-wing politicians tried to score points by using the remaining sections to evict more and more Palestinians. I believed at the time that the legal system I was a part of was doing as much as it could to restrict some of the terrible consequences of this draconian law.

Today, I sit on the outside of that system and watch as politician after politician in successive right-wing governments intensifies efforts to support the broadest possible use of this law. In the push and pull between the legal establishment and the political echelon, the politicians are winning, and it means innocent Palestinian families will lose. I want to put a stop to these laws. I know them well, and I also know that with the proper legal lens, the Supreme Court can stop the eviction of innocent families.

Israel’s conundrum around Sheikh Jarrah dates to its founding in 1948, when the new country, recently independent, declared a state of emergency. Under that legal umbrella, it issued a temporary law called the Absentee Property Law in 1950, which enabled the state to appropriate the property of Palestinians who fled during the war of independence to an enemy state (Jordan, Lebanon, etc.) and redistribute it — for the time being — to Jews who would develop it until such time as a peace agreement could be reached.

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The Absentee Property Law made some sense in 1950. During wartime, Canada, India, Jordan and Britain (upon which Israel’s law was based) had similar statutes to manage enemy property. The United States set up an Alien Property Custodian during both world wars. While Israel’s Absentee Property Law allowed Jews to inhabit abandoned Palestinian homes in places such as West Jerusalem, the Jordanian government, which had its own absentee regulations, did the same, redistributing abandoned Jewish property in East Jerusalem to new Palestinian refugees. This national population “exchange” lent the law some logic. Refugees needed places to live.

But that logic ended a long time ago. More than 70 years later, this law remains on the books, unchanged, and most Palestinians who lost property through it are still not likely to get it back. As a high-ranking official in the state attorney’s office, I sat on a committee that released some Palestinian absentee property back to its owners. But it was always on a small-scale basis, case by case — a house here, a piece of property there. The Supreme Court’s hands are tied, too. Israel has never ended the state of emergency that keeps the Absentee Property Law in force. The law is frozen in postwar 1950.

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Later, after the Six-Day War in 1967, Israel annexed East Jerusalem. In 1970, again in a postwar euphoria, Israel enacted a property law specific to East Jerusalem. This law allowed Jews to reclaim property they owned before 1948, regardless of the Palestinians who moved in afterward. By evicting those Palestinians now, Israel does them a double injustice.

The people whose East Jerusalem homes are now claimed by Jews are the same people who had their property declared “absentee” in 1948. They had fled then to East Jerusalem, which was controlled by an enemy state, Jordan. The law from 1950 gobbled up homes they used to live in, and now the law from 1970 is enabling Jews to claim the home they currently live in — with no offer of compensation or alternative housing. These people, who are not citizens of the state of Israel but “permanent residents” of Jerusalem with fewer civil rights, have no government to turn to for support. Should the Supreme Court uphold the eviction orders, it will render these families, including elderly grandparents and small children, homeless and helpless. By law.

This 1970 law cannot be easily struck down by the Supreme Court, either. In 1992, Israel legislated a quasi-constitutional Basic Law, which gave the court the power of judicial review. But this law explicitly states that any law enacted before then would be immune from the judiciary’s power; only the legislature itself could annul those laws. So this abysmal law from 1970 cannot be erased without the Knesset acting — and it’s impossible to imagine the current Knesset acting to help Palestinians in East Jerusalem.

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So the Supreme Court is faced with this conundrum: Successive Israeli governments devised an entrenched legal mechanism to deny property rights to Palestinians. Yet Israel’s Declaration of Independence and its Basic Laws from the 1990s demand fealty to the principles of equality: the rights to dignity, property and equal protection before the law. These latter are principles I believe in down to the depths of my soul. The families of Sheikh Jarrah, and the people of Israel — Arabs and Jews — deserve better than these laws, and the Supreme Court justices know it.

There are various paths the court could follow. In 2015, the court set a precedent when it allowed a West Bank Palestinian to reclaim his property in Sheikh Jarrah and dismissed Jewish claims to that property. That ruling argued that Israeli authorities should avoid using this law except in the most exceptional circumstances. Striking down the law, despite the 1992 rule, would require a more creative legal lens, but that is not impossible.

The Israeli Supreme Court has a duty to avoid using these laws. Israel’s Declaration of Independence contains a clause guaranteeing complete equality of social and political rights for all inhabitants, irrespective of religion, race or sex. That is the Israel I hope the Supreme Court lives up to.

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