Enforcing Housing Rights: The Case of Sheikh Jarrah

In December 2010, I accompanied a group of expert eviction lawyers from England on a visit to the Occupied Palestinian Territories. We examined the case of Sheikh Jarrah and other cases of forced eviction and house demolition in Area C of the OPT.

The delegation, which was carried out under the auspices of Avocats Sans Frontières, based in Belgium, which also published the delegation’s report, consisted of four English barristers, all specialising in housing rights – John Beckley, Liz Davies and Marina Sergides from Garden Court Chambers, London, and John Hobson of Doughty Street Chambers, Manchester – as well as me, a barrister who takes many cases to the European Court of Human Rights. All are members of the Haldane Society of Socialist Lawyers.

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The background to our visit was renewed tension in Sheikh Jarrah, a Palestinian area located to the north of the Old City in occupied East Jerusalem. Over the last years, more than 60 Palestinians have been evicted forcibly in this area and at least another 500 are at risk of dispossession and displacement, according to the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA).

The Sheikh Jarrah eviction cases were based primarily upon two competing land ownership claims, namely those of the Jewish Committees who claim ownership pre-dating 1948; and 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 expelled forcibly 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 that 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 3 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 illegal 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 before Israeli courts by the Jewish Committees and their successor, the Nahalat Shimon Company, to whom all rights and obligations were transferred in 2008-2009. This has resulted 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 displaced forcibly at least once before.

During our five day mission, we met a wide range of Israeli and Palestinian NGOs, as well as UN institutions and the Palestinian Authority.

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. However, we disagreed. In fact, there were clear violations of international law involved.

The Israeli legal system itself prevents a fair and just legal outcome in international terms. In its 2004 Advisory Opinion, the International Court of Justice (ICJ) held that East Jerusalem was annexed illegally by Israel, and confirmed the applicability of international humanitarian law and international human rights law to East Jerusalem. Under Article 43 of The Hague 1907 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. Israel as the occupying power does not possess sovereignty over East Jerusalem and only has temporary powers of administration. Israel is not entitled to apply its own domestic laws within the OPT, including East Jerusalem.

In our view, 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 organise or encourage transfers of parts of its own population into the occupied territory. 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. Underlying the processes of zoning and planning control in East Jerusalem is clear political motivation 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 Palestinians.
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.

In occupied East Jerusalem we visited the Palestinian communities of Sheikh Jarrah and Silwan. We spoke to a number of Palestinian families whose homes had been demolished or who had been evicted. There were common elements in their personal testimonies:

1) Very short notice is given of an eviction or demolition, if at all, and, in the main, any such notices are in Hebrew (not the first language of Jerusalemite Palestinians). Palestinians do not have home mail delivery so such (final) demolition or eviction orders are distributed in haphazard manner – leaving them under stones near houses, posted on a door at night or giving them to small children at the house.
2) The demolitions and evictions occur very quickly – often within minutes after arrival of the authorities, giving people barely enough time to collect essential belongings.
3) The Israeli police attend evictions and demolitions in massively disproportionate numbers, closing off roads and access points. Any resistance to the eviction or demolition is removed forcibly.
4) In many cases settlers have occupied the homes of evicted Palestinian families almost immediately, within minutes after the eviction.
5) No assistance is provided by the Israeli occupying authorities to assist families who are rendered homeless.

In Sheikh Jarrah, we met a number of Palestinian families who had been evicted, or who were facing the threat of eviction. We were invited into the home of the Rifqa Al-Kurd family, and saw the aggressive young settlers now squatting with their dogs in the extension to their property’s front. Members of the other families were present in the Rifqa Al-Kurd house, including members of the Al-Ghawi family who lived on the street opposite their home for many months after being evicted in August 2009, as well as members of the Hanoun family.

The families told us their connection to their homes in Sheikh Jarrah, the legal processes, and the manner of their eviction from their homes and the current situation in the neighbourhood. It was clear that members of all families present had experienced violence, provocation and intimidation from the Israeli settlers living in Sheikh Jarrah.

Mariam Al-Ghawi told us:

“There are 3 families in our large house [the house is separated into three sections], 38 individuals and 4 generations in total. When they came to evict us it looked like a war zone. There were hundreds of IDF [Israeli Defence Forces] soldiers. It was 04:45 in the morning. I was sleeping so I had my nightgown on and was not wearing the headscarf. Before I could open the door, it was flown open. We knew an eviction was coming up but we did not know the exact day.

My 24-year-old son was attacked. My 9-year-old boy was very disorientated. He did not know what was going on. All 38 residents were evicted within 30 minutes. The police put plastic handcuffs on the children and plastic covers on the neighbours’ doors so they could not leave either.

After the eviction, we put up a tent under a fig tree opposite our house for eight months. The Municipality of Jerusalem then came and confiscated everything in the tent because they did not like the disturbance that the settlers claimed we were causing. Settlers would regularly say to us: “This is a present from God.”

Settlers would close their curtains and would either ignore us or hassle us. When we would complain to the police, we are punished for causing trouble. When they talk to us they are very rude – they swear at us, they call the Prophet Mohammed a pig and they tell us to go to Jordan. We can do nothing.

Her full story can be found in our Report, together with other heart-rending accounts.

It was made very clear to us that the local lawyers are anxious to investigate international avenues of legal appeal or prosecution, since there is very little chance that they can obtain justice in local Israeli courts. The starting point is that Israeli jurisdiction over East Jerusalem is not legitimate in the context of the occupation and illegal annexation of East Jerusalem.

I had to explain that there are no international remedies directly accessible by the local lawyers representing the Sheikh Jarrah families and other victims of one-sided planning laws, forced eviction and house demolition. There is no international court of appeal. This is the direct result of Israel’s obstruction and obduracy in refusing to ratify the relevant optional protocols as noted above, or even to recognise the de jure application of the Fourth Geneva Convention to the Occupied Palestinian Territory.

However, we discussed with the local lawyers the possibility of the exercise of universal jurisdiction for grave breaches of the Fourth Geneva Convention, and of the precedents including that of General Almog, against whom a Warrant of Arrest was issued by an English court when he visited London; it was only because of a tip-off that he was not arrested, choosing to stay on the aircraft and return to Tel Aviv. They could actively seek to identify Israeli officials and officers with overall control of housing and land use policy in East Jerusalem and Area C, and could collect relevant evidence. Criminal prosecutions would be a very effective deterrent.

Member states of the European Union, especially the United Kingdom with its historic role in the creation of the present situation, are deeply complicit in the present state of affairs; dissemination of accurate information in our Report and others is of vital importance in lobbying and indeed shaming the relevant governments, where necessary.

The full text of the Report, more than 28,000 words, 96 pages, published in May 2011, can be found here.

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Bill Bowring is Professor of Law, Birkbeck College, University of London. He is well known for his work in the field of human rights. He combines his academic work with practice at the Bar, appearing in the European Court of Human Rights, and advising the Council of Europe, European Union, OSCE, United Nations, on human rights, minority rights and related issues.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.