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Understanding the legal conflict looming over the recent wave of Israel-Palestinian violence: The Sheikh Jarrah property dispute

The reason why the tenants in Sheikh Jarrah today lack ownership is not that Israel denies property rights to Palestinian Arabs, but, rather, because the government of Jordan declined to give the Palestinian Arabs title to the land that Jordan had seized.

A fresh wave of violence has descended upon the Abrahamic Holy Land, with Palestinian terror unit Hamas firing multiple rockets at Jerusalem, and the Israeli Defense Forces responding back in kind. The reasons for this new wave of violence are multi-faceted, with clashes between Palestinians and the Israeli Police exacerbating the situation. However, the main flashpoint behind the violence is the Sheikh Jarrah property dispute, a dispute which can lead to the evictions of around 300 Palestinians from the East Jerusalem neighborhood. It is of note that whereas West Jerusalem is primarily inhabited by Israeli Jews, Palestinian Arabs constitute the majority in East Jerusalem.

The map of Jerusalem old city with Christian, Jewish and Muslim areas marked, image via The Economist

Jewish landlords Vs Muslim tenants

The Sheikh Jarrah dispute is primarily a property dispute which involves several properties with tenants whose leases have expired and, in a few cases, squatters with no tenancy rights at all. These tenants, who are almost exclusively Palestinian, are facing a legal challenge from their landlords, who are the owners of the property, as has been established by multiple rulings in Israeli courts. The property owner/landlords, who are primarily Jewish, have pursued this litigation throughout the years and have won at every level of the Israel judicial system thus far. On May 10, the Israeli Supreme Court was supposed to rule on an appeal from the Sheikh Jarrah tenants against their landlords. However, this ruling has been delayed for at least 30 days in wake of the violent clashes between Palestinians and the Israeli Police.

Back in the 1870s when Jerusalem was under Ottoman rule, the Jewish community purchased the land of what is now Sheikh Jarrah, in order to live close to the supposed tomb of a Jewish High Priest dating back to antiquity. The Jewish community enjoyed uninterrupted ownership of Sheikh Jarrah till 1947. However, after the 1947 Arab-Israeli War, the Kingdom of Jordan occupied East Jerusalem, including Sheikh Jarrah.

Under Jordanian rule, Sheikh Jarrah was re-populated by Palestinian refugees, although the title and ownership of properties in Sheikh Jarrah were not handed over to the Palestinians. Eventually, Israel took over East Jerusalem from Jordan in 1967, and the Jewish community began to re-assert its ownership over Sheikh Jarrah. The ownership claim of the Israeli Jewish landlords of Sheikh Jarrah is not seriously disputed, at least in Israeli courts.

The leasehold rights of the Palestinian tenants of Sheikh Jarrah were presented to them in the 1950s by the Jordanian Custodian of Enemy Property. These lease holding rights of the tenants, which are not ownership rights, have been accepted by the Israeli courts. In 1982, the Israeli courts ruled in favor of adopting a settlement agreement between the leaseholders and the owners of the properties. This agreement established that the tenants had  “protected leaseholds” under Israeli law (a status superior to ordinary leaseholds under Israeli, Jordanian, and British law) but that the owners still retained title ownership of the properties.

The Palestinian tenants continue to enjoy the benefits of these “protected leaseholds” to this day, marking more than fifty years of uninterrupted possession. Now that the Sheikh Jarrah leaseholds are expiring (either due to the natural expiration of leasing rights or serious breaches or terms of the lease), there is a renewed legal and moral debate contrasting the rights of the lease-holding tenants and the title-holding owners.

There was only one major interruption in the owner’s uninterrupted chain of ownership over SheikhJ arrah, that is the 1948-67 occupation of East Jerusalem by Jordan, with Sheik Jarrah properties held by the Jordanian Custodian of Enemy Property. During this 19-year occupation, Jordan denied Jews the right to exercise their property rights, which was explicitly discriminatory in nature.

After expelling all Jewish residents of East Jerusalem during its occupation, Jordan transferred custody over all Jewish-owned property to the Jordanian Custodian of Enemy Property. According to the British law on enemy property, on which the Jordanian law is based upon, Jordan’s sequestration of the enemy property only extinguished owners’ rights completely if the state seized title by eminent domain or if the Custodian transferred title to someone else. In the case of Sheikh Jarrah properties, the Custodian did not transfer the ownership of the properties to anyone else, instead of leasing some of the properties to Palestinian Arabs. Therefore, the original ownership rights in the case of the Sheikh Jarrah properties were not extinguished.

Jordan had not granted ownership rights to Arab tenants

After the Six-Day War of 1967 ended Jordan’s occupation of East Jerusalem, Israel passed legislation that upheld the private property rights of all ethnicities, including Palestinian Arabs who received the title from the Jordanian Custodian of Enemy Property. Ironically, if only Jordan had transferred the ownership rights of properties in Sheikh Jarrah to the Palestinian Arabs, instead of leasing them out, the Israeli law would respect and protect the resulting ownership rights.

The reason why the tenants in Sheikh Jarrah today lack ownership is not that Israel denies property rights to Palestinian Arabs, but, rather, because the government of Jordan declined to give the Palestinian Arabs title to the land that Jordan had seized.

For example, in a hypothetical situation, if Pakistan takes over Kashmir and expels all Kashmiri Pandits from their homes, declaring their houses to be enemy property, and then leases out these properties to fellow Pakistanis, it would not be legally incorrect to restore those properties to their original Kashmiri Pandit owners once India retakes it. Even if India recognizes the lease-holding and tenancy rights of non-citizens who were settled into Kashmiri Pandit homes by Pakistan in this hypothetical situation, India can restore the ownership rights of Kashmiri Pandits on their properties, allowing them to seek and collect rent from the tenants now occupying the property.

There are a lot of misconceptions in the Western media and international activists in general regarding the Sheikh Jarrah property dispute. From a strictly legal perspective, and relying on the various decisions of Israeli courts on this issue over the decades, it can be securely stated that the Palestinian tenants of Sheikh Jarrah do not possess ownership rights over the properties in question. However, the battle over Sheikh Jarrah is not strictly legal, carrying with it the baggage of more than 70 years of Israeli-Palestinian conflict. All eyes are now on the Israeli Supreme Court, which will announce a new date for the ruling on Sheikh Jarrah in the next 30 days.

Ayodhra Ram Mandir special coverage by OpIndia

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