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Writers Articles And Opinions |
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14 March 2010 By Stephen
Lendman
For Jews, Jerusalem is its
historic capital. Muslims also claim it for the third
holiest site in Islam, containing the 35 acre Noble
Sanctuary (al-Haram al-Sharif), including the Al-Aqsa
Mosque and Dome of the Rock.
The 1947 UN Partition Plan
designated Jerusalem an international city under a UN
Trusteeship Council. After Israel's 1947-48 War of
Independence, it was divided between Israel and
Jordan, and during Israel's 1967 Six-Day War, East
Jerusalem was captured and occupied, its current
status today.
In March 2009, a confidential EU
report (now public) accused Israel of using settlement
expansions, house demolitions, discriminatory housing
policies, restrictive permits, closing Palestinian
institutions, the West Bank Separation Wall, and
various other ways to "actively pursu(e) the illegal
annexation" of East Jerusalem and "increase Jewish
presence" in the city.
In a December 2009 report, the
Adalah Legal Center for Arab Minority Rights in Israel
affirmed the EU report's concerns. Titled
"Dispossession and Eviction in Jerusalem," it provides
historical context, a legal overview, and case study
examples in Sheikh Jarrah, an East Jerusalem
neighborhood between the Old City and Mount Scopus.
The community "has become the
site of a protracted legal battle whose implications
range from the evictions of more than 25 families to
the visibility of a future Israeli-Palestinian peace
agreement and the" ultimate status of Jerusalem.
Four families have already been
evicted from homes they've lived in for over 50 years.
The others are awaiting court appearances and rulings
to decide their fate, nearly certain given Israel's
history of judicial unfairness toward Arabs, including
its own citizens having no rights in a nation
affording them solely to Jews.
Since the 1970s, Israeli settlers
have targeted Sheikh Jarrah, seeking control of
property they claim Jews owned before 1948 as a way to
increase Jewish residency in "strategically located"
parts of East Jerusalem. Specific areas include the
Shepherd Hotel compound, the Karm Al-Mufti olive
grove, and Karm Al-Ja'ouni, but Sheikh Jarrah in its
entirety demonstrates the futility of decades of legal
battles and "an inherent legislative bias that renders
adherence to international legal standards
ineffectual."
Background
In 1956, three UNWRA-Jordanian
agreements promised 28 families Sheikh Jarrah property
deeds they never got. One let them lease the land as
refugees. The second agreed to fund their homes, and
the third stipulated that "in exchange for nominal
rent payments (and other provisions), the families
would lease (them) for three years," after which
they'd have legal title. Despite adhering to contract
terms, they never got it.
After the 1956 Six-Day War, the
Israeli General Custodian controlled Sheikh Jarrah.
Then in 1972, the Sephardic Community Committee and
the Knesset Israel Committee (both religious and
ideological) sought ownership rights, based on a
historical and religious affiliation during the
Ottoman era, using "koshan," a legal title as the
basis of their claim, dating from the early 19th
century, then finalized in 1886.
The "koshan's" validity is
central to the current claim and legal challenges to
decide who has rightful ownership. But according to
expert testimonies, the document's authenticity is in
doubt as they don't conform to Ottoman era criteria,
so therein lies the rub.
Further, according to the Israeli
Land Registry Office, the "koshan" doesn't bear on
the rights of parties already inhabiting the land and
isn't proof of ownership. Nonetheless, 23 Palestinian
families were ordered to pay rent. Legal challenges
followed, so it's for the courts to decide who owns
the land rightfully.
Earlier in 1982, a protracted
legal battle began after the Committees jointly sued
23 of the families. At the time, it was resolved by
granting the validity of the Committees' claim while
giving the families "protected tenant" status,
removing the threat of eviction provided they paid
rent regularly and refrained from renovating or
changing the property. The case became a modern
precedent for settling Karm Al-Ja'ouni neighborhood
disputes, but it failed to address the legitimacy of
the Committees' claim or the consent of the other 17
families.
The agreement became the legal
basis for subsequent court-ordered evictions and
"rendered....inquiries into the legitimacy of the
Committees ownership claims redundant from a domestic
legal perspective."
Here's the problem. The four
evicted families deny ever consenting, their lawyer
acting on his own for settlement, yet what he achieved
"diverged greatly" from his clients' wishes. The
families remain steadfast, saying they were
misrepresented, kept uninformed, and maintain the
homes are theirs, based on the UNRWA-Jordanian
agreement.
In addition, the 1982 court
decision stipulated that the settlement may be
challenged if clear proof shows it was reached on
false grounds. Perhaps so as the affected families got
no additional benefits beyond their undisputed rights.
"Protected tenancy" derives from
the 1972 Tenant Protection Law, protecting against
East Jerusalem evictions under Israeli law.
Nonetheless, the settlement became the legal standard
for subsequent confrontations over ownership claims.
Numerous legal actions followed
without resolution, despite the "koshan's" uncertain
authenticity based on a 19th century Ottoman document.
However, the Committees have prevailed so far, not the
families, four already evicted, the others very much
in jeopardy. From an overall perspective, the:
"measures employed to (remove
them) relate to one of a number of complementary
initiatives undertaken by both public and private
actors intent on creating, and maintaining, a Jewish
demographic majority throughout occupied East
Jerusalem" toward the ultimate goal of making all
Jerusalem exclusively Jewish.
Currently, four Sheikh Jarrah
planning schemes are in different approval stages, the
largest being TPS 12705, submitted by Nahalat Shimon
International in August 2008, applying directly to the
land where the families live. If approved,
construction of 200 new Jewish only residential units
will proceed, affecting 500 Palestinians who'll be
evicted and their homes demolished.
Other developments involve
smaller projects, all favoring Jews over Palestinians.
Together, they'll "advance the creation of Israeli
strongholds in the holy basin surrounding the Old City
with Sheikh Jarrah to the north, Silwan to the south,
and the Mount of Olives to the east." The idea is to
build a number of Jewish neighborhoods linking West
Jerusalem and Mount Scopus, a Jewish continuity,
simultaneously displacing longstanding Palestinian
residents from their own land.
As for the 28 Palestinian
families, they're an impediment to Israel's aim. The
solution then is remove them with the help of obliging
courts that usually deliver.
The issue "also represents the
most evolved (initiative) facilitating the development
of Jewish settlements throughout this sector of
occupied East Jerusalem." It began over 30 years ago,
initiating a long succession of rental demands and
subsequent legal actions.
Family
Testimonies
The Al-Kurd Family's testimony is
instructive. Shortly after the 1948 war, Fawzyeh
Al-Kurd was born in the Old City. Needing a new home,
she found it in Sheikh Jarrah, thanks to the UNWRA-Jordan
agreement. She's been there ever since, married
Mohammed Kamel Al-Kurd in 1970, and raised six
children. Two years later, litigation demanding rent
began when she was young and didn't realize the
consequences.
Over the years, hardships and
continuous legal proceedings generated "fear and
uncertainty" that culminated on November 8, 2008 when
heavily armed, masked police entered their home
forcibly in the middle of the night after locking down
the neighborhood.
Though ill and confined to a
wheelchair, Mohammed was thrown to the sidewalk,
suffered a heart attack, and died a week later from a
second one. He was too sick to contest. In mourning,
Fawzyeh lived in a tent, protested, and was harassed
by police. Confused and frustrated, she noted that
"Many people, organizations, and governments know of
my case, yet the world has remained silent."
In two separate 1999 lawsuits,
the Committees demanded that the family be evicted
over rent delinquency and Tenant Protection Law
violations. They prevailed, and an eviction order was
issued, based on a 1989 Civil Appeal ruling and the
Committees' 1972 "koshan." The Al-Kurds were held in
contempt for violating the Committees' rights, the
judgment also saying if the family objected, they had
to pay rent to a court fund until the ownership
question was resolved.
The Al-Kurds' appeal was rejected
on the grounds that the family failed to prove they
were misrepresented and that delay in filing the claim
effectively undermined their position.
In 2008, the family sued in the
High Court of Justice (HCJ) in which they requested a
declaratory judgment under which their lawyer's
agreement and subsequent verdicts would be voided.
Again they were rejected, the HCJ ruling that the
family failed to meet the requisite burden of proof.
The Al-Ghawi family's experience
was just as frustrating - losing their home, living in
a tent for six months until returning while legal
proceedings continued until receiving a final notice
in August 2009 when police stormed the house, removed
them forcibly, and destroyed most of their belongings
in the process. Reflecting on the episode, Fuad Al-Ghawi
said "The reaction of the children has been terrible.
They are afraid and unable to forget that they once
lived" there.
Yet he remained steadfast seeking
an alternative solution, saying:
"We are waiting for someone to
help us. I am struggling to stay in Jerusalem. Our
options are limited; the cost of a new house here is
very high. I don't know what we are going to do, but
we won't leave, or else we will never be allowed
back."
For the Hanoun family, suffering
compounded by uncertainty became an element of every
day life, Maher saying it was "impossible to plan for
a future." Evicted in 2002, they were again in August
2009. The experience took its toll.
"The eviction has destroyed our
lives. To live on the street is so hard. It kills my
family to watch strange faces living in the home in
which we spent our lives."
Yet Maher is determined to
achieve an equitable solution for his family and other
Sheikh Jarrah residents. His home motivates his
spirit. "The same house contains the history,
memories, and dreams of my family."
The Sabbagh family lived in
their home since 1956 when named in the initial 1972
actions against Sheikh Jarrah residents. Finally in
June 2009, a court document challenged their land
ownership right, the same action Mohammed Sabbagh knew
his neighbors faced over the years. Preparing for the
worst, his case remains ongoing awaiting the next
court hearing. It's already convened twice, both times
Committee lawyers requesting a delay for being unable
to supply requested documents.
The other families keep
struggling, facing one obstacle after another, being
rejected time and again, yet persisting to retain land
they rightfully own.
International
Law Considerations
Numerous international laws
affirm the right to housing, property, protection
against forced evictions, and reparations. Yet Israel
repeatedly violates them. Consider Jerusalem. The UN
Partition Plan designated it an international city
under a UN Trusteeship Council. But contrary to
international laws, Israel claims sovereignty, imposed
control, and is incrementally removing Palestinians to
make it exclusively a Jewish city.
On June 7, 1967, Defense Minister
Moshe Dayan proclaimed: The Israeli Defense Forces
have liberated Jerusalem. We have reunited the torn
city, the capital of Israel. We have returned to this
most sacred shrine, never to part from it again."
Yet General Assembly and Security
Council resolutions called for the city's immediate,
unconditional "demilitarization" and
"internationalization."
Nonetheless, in 1967, historic
Palestine became belligerently occupied. Jerusalem was
declared its capital, and Palestinians have been
systematically removed, despite UN resolutions
declaring all:
"measures taken by Israel to
change the status of the city to be invalid, (and
ordering its government to) rescind all such measures
already taken and to desist forthwith from taking any
further actions which tend to change the status of
Jerusalem."
July 1980 was defining when
Israel passed its Basic Law: Jerusalem, Capital of
Israel (the Jerusalem Law), declaring the city
"complete and united (as) the capital of Israel."
East Jerusalem was effectively
annexed in violation of international law and Israel's
noncompliance with Security Council and General
Assembly resolutions. SC Resolution 478 (August 20,
1980) declared the law null and void, a violation of
international law, and required it be rescinded
forthwith. The vote was 14 - 0, America abstaining.
Israel categorically rejected it,
announcing "It will not undermine the status of
Jerusalem as the capital of a sovereign Israel and as
a united city which will never again be torn apart."
International laws state
otherwise, requiring an occupying power to respect
territorial laws in place, any new ones conforming
with the provisions of Fourth Geneva's Article 64 and
Article 43 of the Hague Regulations.
Geneva stipulates:
"The penal laws of the occupied
territory shall remain in force, with the exception
that they may be repealed or suspended by the
Occupying Power in cases where they constitute a
threat to its security or an obstacle to the
application of the present Convention....the tribunals
of the occupied territory shall continue to function
in respect of all offences covered by the said laws."
In defiance, Israel imposed its
will, thereafter tightening it ruthlessly. As a
result, Sheikh Jarrah residents are governed under
Israeli law, affording them no justice or redress.
Combined, Hague (1907) and Geneva
(1949 and subsequent additions) international law
provisions comprise the core body of occupation law.
They regard military occupation as temporary, for the
period only between cessation of hostilities and a
peace treaty. Occupying powers have no sovereignty
over territories they control. They're temporary
trustees, responsible under Hague's Article 43:
to "take all measures in (their)
power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless
absolutely prevented, the laws in force in the
country."
Even then, Hague and Geneva
stipulate that any legislative or other changes must
benefit the civilian population, protect their rights,
and prescribe no unlawful measures, including
collective punishment, forcible transfer, or the
confiscation or destruction of their property.
Especially relevant is Israel's
1970 Legal and Administrative Matters of Law. It was
enacted to include all properties Jews claimed
ownership of pre-1948, empowering an Administrator
General to return them to their previous owners. A
separate law prohibited Palestinians from reclaiming
lost West Jerusalem land - actions Hague and Geneva
provisions call discriminatory, illegal, and
unjustifiable.
Under Fourth Geneva's Article 4,
East Jerusalem Palestinians are "protected persons,"
Article 29 stating:
"the party to the conflict in
whose hands protected persons may be, is responsible
for the treatment accorded to them by its agents,
irrespective of any individual responsibility which
may be incurred."
Article 27 states:
"Protected persons are entitled,
in all circumstances, to respect for their persons,
their honour, their family rights, their religious
convictions and practices, and their manners and
customs. They shall at all times be humanely treated,
and shall be protected especially against all acts of
violence or threats thereof and....all protected
persons shall be treated with the same consideration
by the Party to the conflict in whose power they are,
without any adverse distinction based, in particular,
on race, religion or political opinion."
In other words, occupied people
are ensured absolute protection. Under international
law, violations hold no validity, including illegal
territorial annexations.
Confiscating and demolishing
Palestinian homes for Jewish settlements constitute
serious legal breaches. Hague's Article 46 prohibits
expropriation, and Article 47 bans pillage.
Fourth Geneva's Article 53
forbids private property destruction, not justified
by military necessity that ends when hostilities
cease.
Belligerently occupying Sheikh
Jarrah "invalidates any recourse to military necessity
as the basis of the seizure and proposed destruction
of private property." Doing it for 200 exclusively
Jewish residential units is a grave international law
breach, that under the Rome Statute's Article 8(2)(a)(iv)
is a war crime.
It also violates Fourth Geneva's
Article 49 stipulating that the "Occupying Power shall
not deport or transfer parts of its own civilian
population into the territory it occupies" nor
forcibly remove its lawful residents. The Rome Statute
calls this a war crime.
Thus far, four Sheikh Jarrah
families (with its 100 residents) have been forcibly
uprooted and evicted. The fate of 24 others (with
hundreds more) hangs in the balance, besides thousands
already displaced and the entire East Jerusalem
Palestinian population targeted for removal -
involuntarily, forcibly and illegally. The
International Criminal Court calls forced displacement
a war crime and a crime against humanity when part of
a widespread and systematic attack on a civilian
population.
Numerous other international laws
respect the right to property and protection against
confiscation, destruction, and forced evictions,
including the:
-- Universal Declaration of Human
Rights;
-- International Covenant on
Civil and Political Rights;
-- International Covenant on
Economic, Social, and Cultural Rights;
-- Convention on the Elimination
of all Forms of Racial Discrimination;
-- Convention on the elimination
of All Forms of Discrimination Against Women; and
-- Convention Relating to the
Status of Refugees.
Sheikh Jarrah is a "poignant case
study" highlighting Israel's belligerent lawlessness.
It's "a microcosm of Israel's aggressive East
Jerusalem" land policies over the entire West Bank,
providing "a documented example of the (multiple
public and private forces) engaged in cementing (its)
claim to sovereignty over (all) Jerusalem" and as much
of the West Bank as it wishes.
Palestinians have endured decades
of occupied belligerency and the systematic theft of
their land, the international community failing to
fulfill its obligations under Article 1 to the four
Geneva Conventions stipulating:
"The High Contracting Parties
undertake to respect and to ensure respect for the
present Convention in all circumstances," meaning they
must intervene to enforce the law by holding violator
states liable.
Yet for over six decades,
Israel's has remained unaccountable, including for
state terrorism, belligerency, militarized occupation,
arrests, incarcerations, random killings, targeted
assassinations, torture, free movement and expression
restrictions, crop destruction, economic
strangulation, home demolitions, land seizures, and
forced displacement, yet the world community is
silent.
How long will this continue? When
will justice be served? Why haven't supportive
millions acted to assure it? People of conscience
demand answers. It's high time they got them.
Stephen Lendman is a Research
Associate of the Centre for Research on Globalization.
He lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net. Also visit his blog
site at sjlendman.blogspot.com and listen to
cutting-edge discussions with distinguished guests on
the Progressive Radio News Hour on the Progressive
Radio Network Thursdays at 10AM US Central time and
Saturdays and Sundays at noon. All programs are
archived for easy listening.
http://prognewshour.progressiveradionetwork.org/
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