Transcript of Sheikh Jarrah Webinar NH: Welcome Ladies And
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Transcript of Sheikh Jarrah webinar NH: Welcome Ladies and Gentlemen to this UKLFI webinar on the current property dispute in Sheikh Jarrah. We are convening in truly troubling circumstances as Israel continues to suffer under bombardment from Gaza and the toll of those killed and injured continues to climb. Our thoughts are with all of the innocent victims and their families, Israelis, Palestinians and foreign nationals, and we lament the futile loss of life caused by Palestinian terrorist groups from Gaza. It is important to acknowledge that this is not some spontaneous escalation, rather a planned escalation by Hamas in light of internal Palestinian power struggles and Hamas has been stockpiling missiles and rebuilding its terror network with Iranian backing since the last conflict in 2014. In the context of this terrorism, much has been made for political reasons, especially in recent days, of the property dispute in Jerusalem's Sheikh Jarrah neighbourhood. Israel's critics have distorted the facts, perverted international law and adopted a bigoted approach attempting to intimidate court and law enforcement officials into demanding that the State defy court orders and deny property owners their legal rights on the basis of the race of relevant parties. The current dispute in Sheikh Jarrah involves several properties and the litigation concerning them has been the subject of decades; it has gone all the way to the Supreme Court. I am tremendously grateful to have with us from Jerusalem Professor Avi Bell - Professor of law at the University of San Diego and at Bar-Ilan University. He teaches both property law and international law. He is widely cited in those areas and frequently writes about the Arab-Israeli conflict, he is also a senior fellow at the Kohelet Policy Forum. Now, please, Ladies and Gentlemen, put your questions into the questions and answers function on your screen. We will be seeking to answer as many of them as possible in the next hour. I have already had several sent in advance and we will begin with those. Professor - welcome, please could you begin by explaining what this litigation is about. AB: Thank you very much for having me and I will do my best to explain the litigation to the non- property lawyers among you. What we are discussing here is four different lawsuits that have been combined, by a single owner. The owner of the property is a corporation called Nahalat Shimon. There are eight different defendants in the four cases but all of them concern property that as you mention, is in the Sheikh Jarrah neighbourhood. What must be understood is that Sheikh Jarrah was not originally one neighbourhood. It was created in the 19th century and until then it was empty land, it had several graves and there were pilgrimage sites but no housing. In the 19th century three different neighbourhoods were formed there right next to one another, all in proximity to the relevant graves. There was an Arab neighbourhood called Sheikh Jarrah and two Jewish neighbourhoods; Nahalat Shimon and Shimon Hatzadik. The property concerned is situated in the Jewish neighbourhood of Shimon Hatzadik, right next to one of the pilgrimage sites located next to one of the graves. It was purchased in 1875 by two Rabbis and placed in two different family trusts. This arrangement continued until 1948 when the country of Transjordan, which later became Jordan, invaded the newly created state of Israel. Transjordan captured half of Jerusalem, gaining control over all the Jewish neighbourhoods in the areas it occupied, destroyed them completely, expelled all the Jews and handed over land of the Israelis to the Jordanian Custodian of Enemy Property. In 1948, this property was sequestered by the Jordanian Custodian and it remained under the Custodian’s sequestration until 1967. In 1967 the Jordanian occupation ended with the Six-Day War and the Israeli official receiver took possession of the property of the Jordanian Custodian. In 1970 Israel passed legislation ordering the receiver to release all sequestered property that had not had its ownership transferred to someone else, demanding all sequestered property be returned to its owners. In this case that meant the two family trusts. In 1972 the family trusts went through proceedings of getting their ownership registered which consequently led to a 50-year period of litigation. The bottom line of the litigation was that at every level and in every case, the ownership of Nahalat Shimon and its predecessors in title was upheld by the court. In most of these cases on the other side were a group of Palestinian families that had received leaseholds from the Jordanian Custodian of Enemy Property. A 1982 settlement between the owners and the tenants agreed that one side had leaseholds, that the other side was the ownership, and the leaseholds would be protected tenancies under Israeli law. This meant that as long as they (the tenants) paid rent and abided by the terms of the lease, they would be protected from eviction. The problem here is that the tenants never paid rent and they had engaged in a range of different violations of leases. Four of the eight defendants in this case were children and grandchildren of the tenants who never paid rent (nor abided by the terms of the lease). The others simply squatted on the land. So, unsurprisingly, when the latest round of litigation had commenced, the owners were able to win eviction orders. The eviction orders were issued by the Magistrates Court and appealed to the Jerusalem District Court. The Jerusalem District Court reviewed all of the facts and upheld the eviction orders. Presently, it is waiting for the Supreme Court to rule on the defendants’ request for leave to appeal. I am unsure how the court will rule on the leave for appeal but I do think that it's highly unlikely that this will result in a victory for the defendants. I think that given the record and the clear documentation, ultimately, the owners have rights to their properties and they will win the eviction orders. The only policy question for the state of Israel (since the state of Israel is not involved in this suit---this is a private property lawsuit between the owner and eight individuals) will be whether it upholds the law and carries out the orders or refuses to do so. NH: Could I in the first instance pick up on the differentiation between leaseholders and owners? There have been a number of questions relating to the ownership rights of the Palestinian Arabs that are facing potential eviction, so could you clarify that distinction for our audience? AB: I am most certain the majority of the audience is familiar with leases in general, where there is a landlord who rents out property to a tenant. We all understand that the split that this involves: the landlord maintains ownership of the property, the tenant has a temporary right of possession that lasts as long as the lease lasts. It should be added that all leases expire eventually---in some instances, after a number of years specified in the lease, in other instances, the leases are continuing leases that periodically renew until one side decides to terminate them. If they create a protected tenancy, they can never be ended by the landlord; they expire only when the tenant breaches the lease or when the tenant dies. In protected tenancies there is also the possibility of the children of the lease holder continuing to enjoy the lease if they reside with the tenant, but it can never go beyond the second generation. In the present case, it is fairly clear what the rights are because the owners have the deeds dating back to 1875 and they have already demonstrated this having registered their names with the land registry. There are therefore no competing ownership claims. What I will say is interesting in this case: the four squatters have produced a deed that they claim affects this property. They claim, (I believe around 1998) they had received a deed from an individual named Ismail that covers this land. The problem here is that whoever Ismail might be, his deed doesn't fit in the chain of title – there is no recorded activity of an Ismail purchasing the property or otherwise acquiring title. Neither were any deeds produced, demonstrating that Ismail never had any title to convey, so it is an empty deed. This, in American law school, is referred to as a deed to the Brooklyn Bridge – it is a piece of paper that purports to be a deed but it does not convey title to anything. So in this instance, there is no actual question about title. The tenants have been able to produce documentation from the state of Jordan which are standard forms demonstrating that they had leases from the Jordanian Custodian. What is interesting is that it appears that the tenants actually had an agreement that the Jordanian custodian would eventually transfer title to them. He was supposed to do it within three years but he never did and they never enforced their claimed rights in Jordanian court. The Jordanian custodian no longer has any rights in the property so it is no longer possible for the Jordanian custodian to fulfil his promise. However, if the tenants have a claim that someone has wronged them, the person who wronged them is the Jordanian custodian. NH: How would the situation differ had the Jordanian custodian transferred title to these properties? AB: Well, this gets to the nature of sequestration, what it means to sequester a property.