May 15, 2021

That Sheikh Jarrah could become the focal point for the latest interminable bout of Israeli-Palestinian violence does not, on the face of it, seem to add up. Affluent and calm by East Jerusalem standards, it has none of the holiness of those contested sites in the Old City just to its south, none of the poverty and crowding of the Shuafat refugee camp just to its north, and none of the neglect and anarchy of parts of East Jerusalem that sit in a no man’s land beyond the concrete wall Israel hastily constructed during the Second Intifada.

That, presumably, is why it houses eight consulates from European countries which function as de facto embassies to the Palestinian Authority, whose administrative headquarters are actually in Ramallah, about 15 kilometres north of Jerusalem. It also is the centre of social and political life for a host of NGOs, consulate staff and activist organisations, and a hub for journalists who tend to be pretty friendly to the Palestinian cause. Indeed, if the revolving door of “humanitarian” NGOs and activist journalists has an axis, then it spins somewhere between the villas and hotel breakfast buffets of Sheikh Jarrah.

It is fitting, then, that the place has captured the attention of Palestinians and pro-Palestinian partisans: a decades-long property dispute over whether Arab families should be evicted from property claimed by Jewish owners has suddenly became a proxy for the entire Jewish-Arab conflict over Jerusalem. Almost overnight, a wave of violent protests exploded in Jerusalem, as surging nationalist and religious tensions erupted across the country.

“Israeli law allows Jews to reclaim ownership of land they vacated in 1948, but denies Palestinians the right to reclaim the properties they fled from in the same war,” is how the New York Times described it. This was all too typical of the radically distorted narrative that has taken hold in the West. The conflict might be here in the Middle East, but the conversation about the conflict in Western capitals and campuses seems to have become a screen on to which irrelevant historical demons come to get projected.

But the facts of the case don’t quite fit so neatly on to these fashionable narratives and categories; the Arabs and Jews are in conflict because of their own histories and interests, and not because they are play-acting parts in a drama of guilt expiation.

The disputed homes cluster in what was once the small Jewish neighbourhood of Shimon Ha-Tzadik, which was founded in the late nineteenth century on land close to a revered tomb. It lay adjacent to Sheikh Jarrah, which has since grown to surround it. Flare-ups of violence occasionally forced Jewish residents to flee, most notably during an Arab attack on the neighbourhood in 1936. Later, following the Arab-Israeli war in 1948, the entire area came under Jordanian control, together with Jerusalem’s Old City and the rest of what came to be known as East Jerusalem.

As in so many wars fought in lands vacated by imperial powers, masses of people fled the fighting, usually to places that were under the control of their side of the conflict. Displacement was, naturally, much higher on the losing side — Jews fleeing Sheikh Jarrah and the Jewish Quarter of the Old City in 1948 were vastly outnumbered by Arabs fleeing parts of West Jerusalem. Compounding the humanitarian tragedy, displaced persons also left behind immovable property, often (but not always) on the other side of a new and hostile international boundary.

And so it was in what had once been Mandatory Palestine, the majority of which fell under Israeli rule and about a fifth under Jordanian rule. Both Jordan and Israel established Custodians for Absentee Property, roughly modelled on the British Custodian of Enemy Property, which took control of German and Italian property in Mandatory Palestine after 1939.

The amount of property held by the Israeli Custodian was much greater, and the handling of it remains controversial. The question of absentee property has long figured in debates about Arab-Jewish relations in Israel or peace talks with the Palestinians. But the issue of absentee property lurks in the background of contemporary political rows that seem superficially to have little to do with the conflict: for example, disagreements over the discrimination against Mizrahi immigrants (from Arab lands), the privatisation of kibbutzim, fees for national parks and even Sabbath laws.

On the Jordanian side of the Green Line there was much less absentee property to deal with, largely because the Jordanians were on the losing side of the war. They did conquer roughly one fifth of Mandatory Palestine, but that one fifth had very little Jewish property before the outbreak of hostilities. There were, after all, very few Arab military victories in that war in any part of Palestine that was inhabited by Jews.

The exceptions, of course, were in and around Jerusalem. Following 1948, several small agricultural communities around the city fell to the Jordanians and their inhabitants fled. And the eastern half of Jerusalem, including the Jewish Quarter of the Old City, was also conquered by Jordan and its remaining Jews were expelled under the terms of their surrender.

Both Jordanian and Israeli authorities were keen to divest themselves of absentee property as quickly as possible. Both also faced a tidal wave of refugees in urgent need of resettlement. In Jerusalem, displaced families on both sides were often housed in abandoned properties left by displaced families from the other side of the conflict.

In 1967 another war was fought in Jerusalem, this time with Israel prevailing over the Jordanians in the entire city, including Sheikh Jarrah. After the war, Israel annexed the formerly Jordanian part of Jerusalem (as well as other lands surrounding it) in a move that has not been internationally recognised. (Jordan relinquished its claim to East Jerusalem and the entire West Bank in 1988, but retains a special status over holy sites in the Old City in accordance with its 1994 peace treaty with Israel.)

The annexation of East Jerusalem by Israel following the 1967 Arab-Israeli war created two odd legal challenges in the context of Israel’s 1950 Absentee Property Law; both of which cut to the heart of the dispute in Sheikh Jarrah. The law relates to property in Israel, and the determination that someone is an “absentee” based on, among other things, residing in an enemy state or territory during the period 1948-1950.

But now that East Jerusalem was part of Israel (according to Israeli law at least), and all its property owners — including those now in Sheikh Jarrah — were in Jordanian territory in 1948-50, their return could conceivably be described as a mass seizure of private property throughout East Jerusalem.

The Kafkaesque nature of the situation was further emphasised by an additional, more minor problem. Some of the abandoned property administered by the Jordanian Custodian had not been fully transferred to its new Arab owners. This meant that Israel was now administering small tracts of “enemy property” in East Jerusalem where the “enemies” with property deeds were Israeli Jews who had been forced to flee their homes 19 years earlier.

The law was updated in 1970 with the aim of addressing both problems. It determined that Arab residents of East Jerusalem could not be classified as “absentees”, and that absentee properties in East Jerusalem that were still held in guardianship could be claimed by the Jewish owners they were confiscated from.

This is how the claim on the Shimon Ha-Tzadik properties landed in the Israeli courts back in 1972. The Arab residents claimed that the Jordanian Custodian transferred ownership to them; but the court determined that what they had was a leasehold, and that therefore they were “protected tenants”, not owners. Crucially, a protected tenant cannot be asked to leave under any circumstance, except one: non-payment of rent. Which is exactly the situation here, with the residents of the properties in question refusing to pay rent for property which they believe they own.

After being bounced across the judicial system for decades, a final verdict was due to be issued this week. For now, amid a shower of bombs, it has been postponed.

But the dispute has taken on a totemic value for East Jerusalem Palestinians, and for supporters of the Palestinian cause worldwide. For a certain lazy kind of commentary, viewing the Jewish state as the bearer of accumulated sin — as white settlers stealing indigenous land — is too tempting a narrative; facts be damned.

At some point, however, despite the ongoing violence, the Israelis and the Arabs might very well enter into a negotiation for a comprehensive settlement of claims. There were, after all, properties abandoned in this conflict not just by Arabs and Jews in Mandatory Palestine, but by Jews who fled Arab countries throughout the Middle East in the most heated years of the conflict. Such a comprehensive settlement would have to not only account for vast amounts of abandoned property, but it would probably have to also make some kind of reckoning with origins and course of the conflict.

That will certainly be a difficult task. But whatever happens, it would surely be better now for Israeli authorities to defuse the situation and find a creative solution to a tiny legal loophole that should never have become a symbol for anything.

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