The Sheikh Jarrah eviction cases are primarily based upon two competing land ownership claims, namely those of: (1) Jewish Committees (“the Committees”) who claim ownership pre-dating 1948; and (2) 28 extended Palestinian refugee families (over 500 people) who have been residing on the land for over 50 years. The 28 Palestinian families, all of which fled or were forcibly expelled from their homes in 1948 from areas that are now in Israel were resettled in the area of Sheikh Jarrah by the United Nations in 1956. Under a housing scheme sponsored by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), the 28 Palestinian refugee families were granted funds to build homes on land provided by the Jordanian government, provided they relinquished their right to food assistance from UNRWA. According to individual lease agreements between the respective families and the Jordanian authorities, the families were to pay a nominal rent for three years, after which ownership of the land and the properties would be transferred to them. However, despite assurances to the contrary, legal title to the homes was never formally transferred to the families.
Since the start of the Israeli occupation and annexation of East Jerusalem in 1967, which continues until today, the Palestinian refugee families in Sheikh Jarrah have been the target of eviction proceedings brought by the Committees and their successor, the Nahalat Shimon Company (to whom all rights and obligations were transferred in 2008-2009), before Israeli courts, resulting in the eviction of 4 refugee families to date (60 people) – the Mohammad Al-Kurd, Al-Ghawi, Hanoun and Rifqa Al-Kurd families – all of whom had already been forcibly displaced at least once before.
2. Executive Summary: Findings of the Fact-finding Mission
2.1. Applicable International law
The Jerusalem Municipality and the Israeli government insist that the situation in Sheikh Jarrah is a strictly legal matter for Israeli domestic courts to decide upon as purely a dispute of local property ownership between Jewish and Arab residents of Jerusalem.1 (see endnotes) However, the delegation disagrees and observes clear violations of international law.
First and foremost, the delegation emphasizes that the Israeli legal system, which plays a crucial role in deciding the fate of the Palestinian residents of Sheikh Jarrah, in and of itself precludes what would be considered a fair and just legal outcome in international terms. In its 2004 Advisory Opinion, the International Court of Justice (ICJ) held that East Jerusalem is occupied territory, which has been illegally annexed by Israel, and confirmed the applicability of international humanitarian law and international human rights law to East Jerusalem. Under Article 43 of the Hague Regulations, Israeli authorities are obliged to respect the law in force, except when absolutely prevented from doing so, and are prohibited from making permanent changes. Under international law, Israel as the occupying power does not possess sovereignty over East Jerusalem and is vested only with temporary powers of administration. Accordingly, Israel is not entitled to apply its own domestic laws within the OPT, including East Jerusalem.
In the view of the delegation, the situation in Sheikh Jarrah forms an integral part of Israel’s illegal settlement policy in the OPT. The ICJ reaffirmed the applicability of Article 49, paragraph 6, of the Fourth Geneva Convention, which provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” That provision prohibits not only actual deportations or forced transfers of population, but also any measures taken by an occupying power in order to organize or encourage transfers of parts of its own population into the occupied territory. The delegation observes that with regard to East Jerusalem, which includes Sheikh Jarrah, such measures have been taken by the Israeli government, including:
• the unilateral creation of Jerusalem’s municipal boundaries in 1967, leading to the annexation of the Old City of Jerusalem (6.5 km2) and land from surrounding Palestinian villages (64.5 km2) in the West Bank.
• the adoption of the Basic Law: Jerusalem Capital of Israel on 30 July 1980, which declared “Jerusalem complete and united” to be “the capital of Israel”.
Both the expansion of Jerusalem’s municipal boundaries and the 1980 Basic Law have been declared “null and void” by the UN Security Council.2 The delegation considers that the evidence presented to it demonstrates that underlying the processes of zoning and planning control in East Jerusalem are clear political motivations on the part of the Jerusalem Municipality and the Israeli state to engineer the demographic balance between Jewish and Palestinian occupants, resulting in a housing crisis for the latter. These actions also amount to a breach of Article 49, paragraph 6, of the Fourth Geneva Convention.
Moreover, the forced eviction of the Sheikh Jarrah families could also amount to grave breaches of the Fourth Geneva Convention, Article 147, “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” and even “unlawful deportation or transfer” of Protected Persons. Officials identified as having ordered or participated in such conduct could incur individual criminal responsibility.
2.2. A Palestinian housing rights crisis
It is the view of the delegation that the situation in Sheikh Jarrah needs to be considered within the broader picture of housing rights for Palestinians in East Jerusalem and Area C of the West Bank, the surrounding planning regime and the legal protection and enforcement mechanisms.
Currently, only 13% of the land in East Jerusalem (21.3 km2) is available for Palestinians to build on, much of which is already densely built upon with overcrowded houses. The ASF delegation observed that the housing conditions in the Palestinian communities in occupied East Jerusalem are in stark contrast to the housing conditions in both the Jewish neighbourhoods in West Jerusalem and the Israeli settlements in East Jerusalem. Palestinian areas are characterised by poor roads, little or no street cleaning, limited sewage infrastructure, few public services
and an absence of well-maintained public areas. Only about 5–10% of the municipal budget is spent in Palestinian areas, this is despite Palestinians constituting at least 35% of the population of Jerusalem. Additionally, the near impossibility of obtaining building permits, even in the 13% of East Jerusalem zoned for Palestinian construction, has created cramped conditions with numerous generations of family members living in single houses, unsafe building structures and limited or no infrastructure for water, electricity, gas and sewage.
As a result, Palestinian residents in Jerusalem are suffering a severe housing crisis. The delegation was informed by UN OCHA that the continued natural population growth among Palestinians in East Jerusalem currently requires the construction of 1,500 housing units per year, whereas in 2008 only 125 Israeli-issued building permits (needed for “legal” construction) were issued, allowing for the construction of approximately 400 housing units only.
Similarly, the planning regime and enforcement policy in Area C of the West Bank has led to a severe restriction on the development of Palestinian villages. The delegation was informed that around 200 Palestinian houses are demolished on a yearly basis in Area C. Following field visits to Area C (At-Tuwani) as well as to other areas in East Jerusalem (such as Silwan, Beit Hanina, Shuafat and Anata), the delegation concludes that the planning regime and practice of forced evictions and demolitions in the OPT violates Israel’s obligations under international humanitarian and human rights law. As such, the mission fully endorses the conclusions of the UN Human Rights Committee in these matters.3 In July 2010, the Human Rights Committee considered Israel’s implementation of its obligations under the ICCPR and concluded that its policies in the OPT amounted to violations of the right to non-discrimination, to privacy and a home, and to a family life, criticising the “frequent administrative demolition of property, homes, as well as schools in the West Bank and East Jerusalem due to the absence of construction permits, their issuance being frequently denied to Palestinians”.
2.3. The Sheikh Jarrah Evictions
2.3.1. Inequality before the Israeli courts
While the delegation emphasizes the inapplicability of Israeli domestic law and the Israeli court system to occupied East Jerusalem, it was made clear to the mission during briefings and discussions with lawyers representing the Sheikh Jarrah refugee
families, the Norwegian Refugee Council and UN OCHA, that fundamental concerns can be raised as to how these cases have been and are being treated by the courts. During the meeting arranged with the Palestinian lawyers, those specifically working on the case informed the delegation that in December 2009 they had found Ottomanperiod land title documents in the archives in Ankara which cast serious doubt upon the authenticity and accuracy of the documents used by the Jewish Committees and the Nahalat Shimon Company to claim ownership of much of the land in Sheikh Jarrah. The lawyers informed the delegation that these doubts are not being considered properly by the Israeli courts.
Moreover, the delegation observed that there is an asymmetry in the way the Israeli courts treat the question of pre-1948 property rights. Whilst the courts have been willing to uphold claims by Jewish organisations in relation to property in Sheikh Jarrah allegedly owned by Jewish families before 1948, similar ownership claims by the Palestinian residents of Sheikh Jarrah to lands which are located in what is now considered by the Israeli government as part of Israel, are not admitted by the courts. This is due to the Legal and Administrative Matters (Regulation) Law 1970, which specifically permitted pre-1948 Jewish owners to claim property previously owned in East Jerusalem, and the absence of a similar piece of legislation allowing the Palestinian population to reclaim property lost after 1948, for instance in West Jerusalem, as is the case with the majority of the 28 families in Sheikh Jarrah. The ASF delegation considers such asymmetry to be unjustifiable.
2.3.2. Manner of eviction as violating human rights law
The delegation further observes that the manner in which the Sheikh Jarrah evictions have been conducted violate Israel’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR).
In its General Comment 7 of 1997, the Committee on Economic, Social and Cultural Rights (CESCR), the treaty body for the ICESCR, declared that evictions need to be carried out in strict compliance with international human rights law, and that force should only be used as a last resort, and, when it is impossible to avoid, should be minimised to the utmost extent. The first hand testimonies heard and the reliable reports read by the delegation provide clear evidence that Israel is not complying with its obligations to revert to the use of force only in the most exceptional and extreme circumstances. In particular, the findings of the delegation are that the Israeli police have attended evictions and demolitions in disproportionate numbers, closing off roads and access points, and removing members of the affected families with disproportionate and unnecessary force, including using plastic handcuffs on children.
The CESCR further declared that evictions need to be carried out in accordance with general principles of reasonableness and proportionality. However, the delegation observed the following violations of these principles in the case of the Sheikh Jarrah evictions: 1) that not all persons carrying out these evictions were properly identified; 2) that evictions have been carried out at night; 3) that evictions have rendered people homeless and that no assistance was provided by the Israeli occupying authorities to assist families who were rendered homeless; and 4) that adequate and reasonable notice for all affected persons prior to the scheduled date of eviction was not always given.
2.3.3. Law enforcement failures
The delegation further received reliable information indicating possible close links between settler groups and the law-enforcing authorities. In many of the eviction cases in Sheikh Jarrah settlers have occupied the homes of evicted Palestinian families almost immediately, within minutes of the eviction. In the event of court verdicts disfavouring settler groups, the orders are often not enforced. In June 2007, for instance, the Mohammad Al-Kurd family were forced to file a High Court petition against Avi Dichter, Minister of Public Security, and the District Police for failure to enforce a court order to remove settlers who had occupied an extension of the Al- Kurd family home. The family had previously received a court order to seal and demolish the extension, yet the occupation by the settlers made it impossible for the family to comply. Credible accounts of intimidation by settlers and their supporters were articulated to the delegation as well as accounts of inaction on the part of the police when complaints were raised. Under international humanitarian law, namely Article 43 of the Hague Regulations, Israel, as the occupying power, is responsible for the safety of the local population.
Under international human rights law, in particular Articles 6 and 9 of the ICCPR, the Palestinian families in Sheikh Jarrah are guaranteed a right to life and security of the person. In the view of the delegation, the failure to protect Palestinian families in Sheikh Jarrah from settler violence amounts to a breach of Israel’s obligations under international humanitarian law and human rights law.
2.4. Comparative analysis
Using their experience as housing lawyers in England, the delegation has compared the Israeli planning regime and legal framework for evictions and demolitions with the regime in Britain. The delegation believes that such comparison highlights that Israel’s failure to comply with international legal standards and its obligations as an occupying power is compounded by overt discrimination within the Israeli domestic system itself.
The comparison between the British and Israeli systems reveals a number of significant and highly worrying differences. The first significant issue is that the legitimacy of the British courts in determining planning and eviction disputes is accepted whereas Israeli jurisdiction over such disputes is not legitimate in the context of an illegal annexation. Secondly, no planning policy in Britain could include a goal of maintaining or achieving a certain demographic balance on the basis of race, nationality, ethnic origin or anything else, while there is an express municipal policy in Jerusalem on demographic balance. Thirdly, unlike the Israeli courts in East Jerusalem, there is no suggestion that the British courts discriminate between litigants on the grounds of ethnicity, race or national origin and in any event this is prohibited in Britain under equality legislation, which does not exist in Israel.4 Fourthly, the process of eviction is much less violent and does not involve the use of the army. Finally, there is no equivalent of the settlers and their organisations being ready to move into houses whose occupants have been evicted. This comparison leads the delegation to the conclusion that Israeli government claims that its actions are the ordinary consequences of enforcing a planning regime are false. Rather, the delegation concludes that the actions are the consequence of inbuilt and structural discrimination against the Palestinian population.
2.5. Postscript: subsequent events
After the delegation had left East Jerusalem, demolitions continued. On 9 January 2011, the Jerusalem Municipality demolished a significant part of the Shepherd Hotel,5 on behalf of its settler owner, C&M Properties.6 The building is on the slopes of the Sheikh Jarrah valley, overlooking the homes described in this report, and is of historical importance. It is being demolished in order to provide 20 housing units. Those housing units will not be available to Palestinians and the demolition is a further instance of increasing settler occupation in the Sheikh Jarrah area.7 The
demolition was widely condemned by the international community, including by UN Secretary-General Ban Ki Moon, who stated: “It is deeply regrettable that growing international concern at unilateral expansion of illegal Israeli settlements is not being heeded.”8
The delegation has also been informed that eviction proceedings have now been initiated against a further family that has resided in Sheikh Jarrah since the original agreements were made with UNRWA and Jordan.
Richard Falk, UN Special Rapporteur on the OPT, has noted a sharp increase in the number of house demolitions in the OPT. In the period 1 January to 11 March 2011, Israel has demolished 96 Palestinian structures throughout the West Bank, including East Jerusalem, consisting of 32 homes and other residential structures. As a result, 175 people, more than half of them children, have lost their homes, a sharp increase compared to the same period in 2010 when there were 56 demolitions and 129 people displaced. At the same time, Israeli settlements in the West Bank have continued to expand. Falk said that the this “pattern of eviction, demolition, expansion of settlements, and settlers’ violent expropriation of Palestinian homes in the occupied East Jerusalem violates fundamental human rights, as well as provisions of the Fourth Geneva Convention governing belligerent occupation”.9
After the delegation’s return, the Guardian newspaper published documents leaked from negotiations between the Israeli government and the Palestinian Authority. The documents indicate that the PA representative proposed in May 2008 that the PA might concede land in East Jerusalem to Israel, including in Sheikh Jarrah.10 The leaks have been condemned by the PA, but not the contents of the documents. The delegation believes that these developments clearly demonstrate that the significance of the situation in Sheikh Jarrah is recognized at the highest levels. Nevertheless, the delegation believes that the families in Sheikh Jarrah should not be treated as political pawns, but that their rights to respect for their homes, occupied by them for over 50 years in good faith – as they complied with all conditions in the agreements with UNRWA and Jordan – should be respected by all political representatives.
In light of the findings of the fact-finding mission detailed above, and the fact that currently there are nine separate eviction proceedings against Palestinian families residing in Sheikh Jarrah before the Israeli courts, which are all civil proceedings brought by the Nahalat Shimon Company, the settler organization which seeks to demolish the existing Palestinian neighbourhood and build a settlement in its place,11 the ASF delegation calls upon:
To act on its legal obligations as an occupying power and immediately cease both the construction of Israeli settlements throughout the Occupied Palestinian Territory, including East Jerusalem – which in many cases has taken place by means of unlawful appropriation of land, and the government-facilitated and supported transfer of its civilian population to these settlements.
To desist from taking any measures in order to organize or encourage transfers of parts of its own population into the Sheikh Jarrah neighbourhood of East Jerusalem, in particular by engineering discriminatory planning and building permit policies for the Palestinian population.
To immediately desist from practices of forced evictions of Palestinian families and subsequent confiscation and/or demolition of their homes within the occupied territory, in particular within the neighbourhood of Sheikh Jarrah in East Jerusalem. To fulfil its obligations under international humanitarian law and human rights law and provide appropriate police protection for the Sheikh Jarrah families from Israeli settlers intent on personally evicting the Palestinians, and to provide effective law enforcement against settlers, and to exercise due diligence by fully investigating and prosecuting any such acts of violence by Israeli settlers.
The United Nations and the International Community:
For the High Contracting Parties to the Geneva Convention of 1949 to fulfil their obligations under common Article 1, and “ensure respect” for the provisions of the Conventions under all circumstances by taking appropriate measures to compel Israel
to comply with its obligations and to cease to render aid or assistance to its violations by abstaining from forming further relations, diplomatic and economic, with Israel in accordance with their international responsibility as third states.
For the United Nations, to intensify pressure on Israel to respect its obligations under international human rights law and humanitarian law and to take all necessary measures to ensure that Israel desists from its illegal practices and policies of house demolitions and forced evictions, and all other measures leading to the forced displacement of the Palestinian population, and brings an end to the occupation of the Occupied Palestinian Territory, including East Jerusalem.
The European Union:
To implement the European Union Guidelines on promoting compliance with international humanitarian law (2005/C 327/04) in order to ensure Israeli compliance with the relevant standards of humanitarian law under paragraph 16(b), (c), and (d) of these guidelines.
As per Article 2 of the EU-Israel Association Agreement, to suspend the agreement until Israel desists from violations of Palestinian human rights.
Following the European Parliament’s resolution of 20 November 2008 on the case of the Mohammad Al-Kurd family, which calls “on the Council, the Commission and the international community, including the Quartet, to make all possible efforts to protect Palestinian residents in the Sheikh Jarrah neighbourhood and other areas of East Jerusalem and calls on the Quartet to play a more active role in this direction”, to reiterate these calls and take necessary measures to ensure compliance therewith by members states.
To further reinforce its calls that East Jerusalem is occupied territory, administered by Israel as an occupying power, which is prohibited from exercising unlawful de facto sovereign rights in this territory, and is therefore not subject to the jurisdiction of the Israeli courts system.
To ensure EU presence at Israeli courts where cases are discussed that involve the eviction of Palestinian families from Sheikh Jarrah, and to systematically bring highlevel visitors to visit Sheikh Jarrah with an objective of monitoring the situation on the ground and ensure that Israel complies with the EU demands and ceases its violations of the human rights of the local population.
The United Kingdom:
To declare publicly that it will use its influence and all available mechanisms within the EU to ensure that the EU acts upon the recommendations set out immediately above. To ensure that senior UK officials observe court hearings concerning Sheikh Jarrah, and visit Sheikh Jarrah; and join high-level groups from the EU.
To continue and if possible intensify the present policy of providing all possible support to the Sheikh Jarrah families.
To give urgent and public consideration to the question how it can best comply with the obligations laid upon it (and all other states) by the International Court of Justice in 2004:
All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.
In particular, to take steps to implement the recommendation by Amnesty International in 2009 that the UK government should “suspend all military exports to Israel until there is no longer a substantial risk that such equipment will be used for serious violations of human rights.”12
1 UN News Service, ‘Israel’s evictions in Jerusalem violate international law, says senior UN official’, 10 December 2009. Available at: http://www.unhcr.org/refworld/docid/4b29ee022.html (quoting Karen AbuZayd, the Commissioner General of UNRWA as saying that the UN “rejects Israel’s claims that these cases are a private matter to be dealt with by municipal authorities and domestic courts”.)
2 See, for instance, Resolution 452 (1979), 465 (1980) and 478 (1980).
3 The treaty body of the International Covenant on Civil and Political Rights (ICCPR), which Israel ratified in 1991.
4 CERD, Concluding Observations: Israel, UN Doc. CERD/C/ISR/CO/13, 14 June 2007, para 16.
5 ‘The Shepherd’s lost sheep’, The Economist, 13 January 2011. Available at: http://www.economist.com/node/17913606?fsrc=rss&story_id=17913606
6 A US registered company established by Irving Moskowitz, an American businessmen who has funded settler organisations for 20 years.
7 Following the demolition, the bureau of Israeli Prime Minister Binyamin Netanyahu said in a statement that actions undertaken at the Shepherd Hotel were conducted in accordance with Israeli law, adding that “there should be no expectation that the State of Israel will impose a ban on Jews purchasing private property in Jerusalem.” Melanie Lidman & Khaled Abu, ‘PMO: Sheikh Jarrah demolition “in accordance with law”’, Jerusalem Post, 1 October 2010. Available at: http://www.jpost.com/NationalNews/Article.aspx?id=202950
8 UN OCHA, East Jerusalem: Key Humanitarian Concerns 45 (Special Focus, March 2011). 9 UN News Centre, ‘UN rights expert condemns sharp increase in Israeli demolition of Palestinian homes’, 11 March 2011. Available at: http://www.un.org/apps/news/story.asp?NewsID=37739&Cr=israel&Cr1=
10 Ian Black & Seulmas Milne, ‘Israel spurned Palestinian offer of “biggest Yerushalayim in history”’, Guardian, 23 January 2011. Available at: http://www.guardian.co.uk/world/2011/jan/23/palestiniansisrael- biggest-jerusalem-history?INTCMP=SRCH
11 Ir Amim, Evictions and Settlement Plans in Sheikh Jarrah: the Case of Shimon HaTzadik 1 (June 2009).
12 See Amnesty International, ‘News: January 2009’. Available at: http://www.amnesty.org.uk/news_details.asp?NewsID=18004
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