After 11 days of casualties and destruction, Israel and Hamas announced a ceasefire on 20 May 2021, following one of the most fatal clashes in the Israel-Palestine conflict. This time, an eviction dispute in East Jerusalem lit the fuse for the violence that resulted in 13 Israeli and 250 Palestinian deaths, amongst them 67 children. This article provides an overview and historical background of these eviction proceedings and examines whether the evictions constitute forced displacement under the law of occupation.

FORCED EVICTIONS IN THE SHEIKH JARRAH AND BATAN AL-HAWA

Sheikh Jarrah is a neighbourhood about 500 meters from the Damascus Gate in Jerusalem’s Old City. In October 2020 the Jerusalem Magistrate Court ordered [in Hebrew] six families, residents of Sheikh Jarrah, to vacate their homes by 2 May 2021. The Jerusalem District Court [in Hebrew] upheld this decision on 10 February 2021. The claimants filed an appeal to the Supreme Court, which ordered both sides to report to the court by 6 May 2021 [in Hebrew] on whether they had attempted and reached an out-of-court settlement. On 26 May, the Supreme Court decided to hear the appeal once the Attorney General submits his legal opinion, for which he was granted two weeks.

In a similar case in February 2021, the Jerusalem Magistrate Court ordered four Palestinian families in the neighbourhood of Batan Al-Hawa, south of the Al-Aqsa Mosque, to vacate their homes. On 26 May 2021, on the same day as the Supreme Court’s decision to hear the Sheikh Jarrah appeal, the Jerusalem District Court postponed its decision on an appeal lodged by Palestinian families from Silwan against a similar eviction decision of the Magistrate Court in 2020. The decision to stay the proceedings was likely made in order to await the Supreme Court’s judgement.

Eviction of Palestinian residents litigated before Israeli courts have been ongoing since the early 1970s. In 1972, two settler committees, the Sephardic Community Committee and the Knesset Israel Committee, filed a claim before the Israeli Land Registry asserting that the Sheikh Jarrah neighbourhood is owned by Jews according to a 1858 “Tapu,” an Ottoman law on land rights. They further claimed that Palestinian homes in that area are built on Jewish sacred land. The Jewish residential neighbourhood in Sheikh Jarrah is claimed to have been constructed surrounding a holy Jewish site that is traditionally considered the tomb of the high priest Shimon HaTzadik. 

Since this time there have been around 23 eviction cases before the Jerusalem Magistrate Court. The United Nations (UN) Office for the Coordination of Humanitarian Affairs (OCHA) in the Occupied Palestinian Territory has also mapped out the risk of evictions, showing that at least 180 households are at risk.  

HISTORICAL BACKGROUND OF DISPUTED TITLES IN EAST JERUSALEM

After the 1948 Arab-Israeli War, when Jordan gained de facto control of East Jerusalem, Palestinian refugee families expelled from their homes resided in the Sheikh Jarrah. Their residence was based on a treaty signed between the Jordanian government and the UN Relief and Works Agency for Palestine Refugees (UNRWA). Article 11 of the agreement stipulated that after three years, ownership of the housing units would be transferred to the residents if Jordan had been satisfied with their adherence to the agreement and their contribution to the construction of the buildings.

When these families demanded that the Jordanian Land Department register the houses in their names and proceedings to that effect commenced, the Department found that the lands were not in Jordanian ownership, but rather under the legal responsibility of the Jordanian Custodian of Enemy Property. The Custodian only handed over possession to the Jordanian government for 33 years, allowing them to lease the land to the Palestinian refugees. This status of “enemy property” resulted from an Ottoman agreement granting land for cultivation to Jewish residents of Jerusalem who fled after the 1948 war.

The Jordanian government never adequately resolved these titles, as Jordan’s rule in Jerusalem ended following the Israeli occupation of the entire city of Jerusalem after the 1967 Six-Day War. This ownership dispute has carried on as a significant point of contention in subsequent disputes by the residents of Sheikh Jarrah.

ISRAELI PROPERTY LAW IN EAST JERUSALEM

Most eviction proceedings in East Jerusalem are initiated by Israeli settler organisations. One such organisation involved in the Sheikh Jarrah proceedings is the Ateret Cohanim, “a leading urban land reclamation organisation in Jerusalem”. The organisation, along with other trusts, such as the Jewish National Fund, has filed dozens of eviction lawsuits against around 100 Palestinian families in East Jerusalem, claiming that their homes belonged to a Jewish property trust that had housed Yemeni Jews in the late 19th century.

This settlement process is based on a 1970 law that requires authorities to return to Jewish owners or their heirs property they owned in East Jerusalem prior to 1948 and properties held by Jordanian authorities between 1948 and 1967. Furthermore, the 1950 Absentee Property Law allowed the Israeli state to confiscate land and homes of Palestinians who were not present on their property on 29 November 1947. Although authorities previously applied this law only to West Jerusalem, in 1970 the Knesset passed the Law and Administration Procedures Act, which empowered the Custodian of Absentee Property to determine whether East Jerusalem properties qualified as “absentee properties”.  

Since 1976 Israeli authorities have frozen the land registration process for Palestinians in East Jerusalem and placed limitations on the residents of East Jerusalem seeking to obtain building permits. Currently only 14% of East Jerusalem is zoned for Palestinian residential construction.

THE APPLICABILITY OF THE LAW OF OCCUPATION

The law of occupation is a branch of international humanitarian law (IHL) that incorporates human rights norms and is made up of provisions from the Hague Regulations of 1907, the Fourth Geneva Convention of 1949, and Additional Protocol I of 1977. Article 42 of The Hague Regulations of 1907 defines a territory as occupied “when it is actually placed under the authority of the hostile army.” It continues: “The occupation extends only to the territory where such authority has been established and can be exercised.”

 Since the occupying power must act as trustee in the best interests of the protected, it must preserve the status of the occupied territory prior to the occupation. Israel has denied that the law of occupation applies to the West Bank or Gaza. However, the International Court of Justice (ICJ) held in its Wall Advisory Opinion that Israel’s authority in the Palestinian occupied territories is limited to that of an occupying power. It further affirmed the applicability of human rights treaties in the occupied territories alongside the provisions of IHL. Most importantly for the present cases of Sheikh Jarrah and Batan Al-Hawa, the ICJ affirmed the unlawfulness of the Israeli settlements established in those occupied territories.

According to customary IHL, states may not deport or transfer parts of their own civilian population into a territory they occupy. The ICJ found that Israel’s settlement policies were contrary to article 49(6) of Geneva Convention IV and that “Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law”.

Some commentators, however, have objected that article 49(6) has been grossly misinterpreted as a prohibition against the occupying power’s citizens residing on occupied territory or merely voluntarily moving to occupied territory. It is further argued that article 49(6) should be regarded as a guardrail on the occupier and “was explicitly meant to prevent the kinds of deplorable forcible deportations and mass transfers of peoples perpetrated by Nazi Germany during World War II”. According to this doubtful line of reasoning, the provision would neither explicitly prohibit government-assisted voluntary relocation of Israeli nationals from “Israel proper” into the occupied territories nor obligate the state to prohibit its nationals from settling into occupied territories.

This glosses over one aspect: What about the Palestinian families residing in the territories to which these Israeli citizens wish to voluntarily relocate? Here, we come back to the question of evictions. While Israel’s settlement policy may not constitute the black letter definition of “forced transfer,” those settlement activities are enabled by expropriation by means of the Absentee Property Law or on the basis of laws on (alleged) former Jewish ownership. This conflicts with Israel’s obligation under IHL and human rights treaties under the law of occupation, as article 46 of the Hague Convention of 1907 requires respect for private property and prohibits its confiscation.

The eviction proceedings in Sheikh Jarrah and Batan Al-Hawa, financed and driven by settler organisations, are in essence a form of judicial expropriation based on Israeli domestic law. This stands in contravention to the right to protection of home and family life from arbitrary or unlawful interference in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the right to adequate housing in article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  

Furthermore, if in such eviction proceedings the law is applied or evidence is appraised so as to favour an outcome of eviction of a Palestinian defendant, this would be in violation of the right to a fair hearing in article 14 of the ICCPR and the right to non-discrimination under article 2(1) of the ICCPR. Finally, Israeli land registration and urban zoning regulations significantly disfavour Palestinian residents, which would also constitute a violation of the right to non-discrimination in relation to the right to adequate housing.

FUTURE OUTLOOK 

Settlement policies in East Jerusalem have enabled organisations to initiate eviction proceedings, which result in the displacement and dispossession of Palestinians. This constitutes violations of IHL and human rights provisions under the law of occupation. Given the ongoing ICC investigation in the situation in Palestine and the Occupied Territories, it remains to be seen if this record of displacement and dispossession of Palestinians crosses the threshold of war crimes pursuant to article 8(2)(e)(viii) of the Rome Statute.

On 27 May 2021, the UN Human Rights Council adopted a resolution establishing “an international commission of inquiry to investigate violations of international humanitarian law and all alleged violations and abuses of international human rights law leading up to and since 13 April 2021, and all underlying root causes of recurrent tensions”. The mandate would include the forced evictions in Sheikh Jarrah and Batan Al-Hawa. To say that this would mean justice for the Palestinians would be naïve, but in a conflict so intractable, with the parties involved so intransigent, we can only hope to believe it could be a silver lining.  

Anh Nguyen is a law graduate of the University of Vienna, where she focused on public international law. She is currently a trainee in international dispute resolution and completing her judicial clerkship in the Vienna circuit courts.

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