Thorny Legal Questions At Play In E. Jerusalem


Jerusalem — The latest tiff between the U.S. and Israel over the purchase by Jews of homes in the overwhelmingly Arab neighborhood of Silwan in east Jerusalem, and the final approval of a new Jewish neighborhood in Givat Hamatos in southern Jerusalem, near Bethlehem, begs a fundamental question: Can Jews be legally prohibited from living anywhere in Jerusalem?

According to Israeli law, east Jerusalem is part of the State of Israel, and anyone can purchase a property anywhere in the city. International law holds that Israel is an occupying power here, but does not explicitly say Jews cannot live in east Jerusalem.

Prime Minister Benjamin Netanyahu brought up this most sensitive of subjects during his visit to New York last week, after the State Department sharply criticized Israel for “poison[ing] the atmosphere not only with the Palestinians but also with the very Arab governments with which Prime Minister [Binyamin] Netanyahu said he wanted to build relations.”

In an interview with CBS’ “Face the Nation,” Netanyahu said he was “baffled” by the criticism, which he said amounted to “ethnic purification as a condition for peace,” a concept that goes “against American values.”

“Arabs in Jerusalem are free to purchase apartments in the western [part of the] city and no one is arguing against it,” Netanyahu noted. “I have no intention of telling Jews they can’t buy apartments in east Jerusalem. This is private property and an individual right. There cannot be discrimination — not against Jews and not against Arabs. This goes against values that the United States also believes in.”

(The White House reacted in an unusually strong statement, saying that it opposes “any unilateral actions that attempt to pre-judge final status issues, including the status of Jerusalem.” The statement went on to say: “The fact is, when it comes to American values, it’s American values that lend this country’s unwavering support to Israel. It’s American values that have led us to fight for and secure funding to strengthen Israel’s security in tangible ways,” GIVING Israel’s Iron Dome anti-missile system as an example.)

The prime minister said the 25 Silwan apartments were bought fair and square. “No one stole those houses or confiscated the property. Arabs are selling houses to Jews and Jews are selling to Arabs,” Netanyahu said.

Arab residents of the neighborhood, which adjoins the Old City, told Haaretz that the homes were purchased by an Arab “front man” working on behalf of City of David/Elad, a nationalistic organization that encourages Jews to move into predominantly Arab neighborhoods in Jerusalem.

A spokesman for the City of David/Elad Foundation told The Jewish Week that while the foundation provided “advice on east Jerusalem property acquisition,” the sale was carried out by a firm called Kendall Finance.

David Kretzmer, professor emeritus of international law at Hebrew University and law professor at Sapir Academic College, said there “is absolutely no law” to prevent an individual Jew from purchasing property anywhere in Jerusalem.

“If an individual went out on the free market and bought land in occupied territory, there is nothing against it in international law, provided the transaction was conducted aboveboard,” he said. “But as soon as there is government support and encouragement on all kinds of levels, it becomes problematic.”

That’s because international law “forbids an occupying power from settling its own civilian population in occupied territories.”

Kretzmer said he could not comment on the legality of the Silwan home purchases because he has not examined the sales documents. But he said the planned Givat Hamatos neighborhood is a government-sponsored and planned housing project, “and would therefore be regarded as an illegal act by the international community.”

Avi Bell, a law professor at Bar-Ilan University, concurs that the Fourth Geneva Convention isn’t meant to prevent individuals — Jews or otherwise — from living anywhere they wish.

“The convention actually talks about the transfer of civilians” to occupied territory, “not settlements or individual civilians,” Bell said. If a private individual decides to move to east Jerusalem, whether or not he or she is Jewish or has Israeli citizenship, “the Fourth Geneva Convention has nothing to say about it.”

In the case of Silwan, he added, “it appears that an Israeli organization purchased legal property rights to several units in a neighborhood in east Jerusalem and used those rights to give residence to several other people. It exercised its private property rights.”

Bell said that if the Israeli government decides to heed international pressure and bans Israeli Jews from living in parts of Jerusalem, it could be accused of violating the International Convention for Civil and Political Rights, a treaty that protects the rights to property and equality.

Lior Amihai, deputy director of Peace Now’s Settlement Watch Project, which monitors all Israeli property purchases and construction over the Green Line, said both moves are designed to prevent Israel from being able to hand over territory to the Palestinians.

“The settlers moving to Silwan have a clear political agenda: to destroy the possibility of a peaceful resolution as laid out by the Clinton Parameters,” guidelines for a permanent status agreement.

The guidelines, presented by then President Bill Clinton in 2000, prescribed, among other things, that Israel retain predominantly Jewish neighborhoods and Palestinians receive predominantly Arab neighborhoods in east Jerusalem under a permanent peace treaty.

Amihai said the estimated 2,500 Jews who have already moved to Arab neighborhoods haven’t succeeded in changing either the character or demographics.

He said that the many Arabs who have moved into mostly Jewish neighborhoods over the Green Line are doing so “because they have no alternative. Since 1967 Israel has built 11 neighborhoods for Jews and none for Palestinians,” despite the fact that the Arab population “has quadrupled” since then.

“They have no ambition to change the character of the neighborhood. They just want to live peacefully with their Jewish neighbors,” he said.

Miriam, a Jewish Israeli who asked that her last name not be used for professional reasons, moved to a predominantly Arab neighborhood in east Jerusalem 12 years ago.

Most of her neighbors tolerate the 120 Jewish families that make up her enclave, but some do not. “For many years things were quite quiet, but the geopolitical situation affects us,” she said.

Since Israel’s first war with Hamas, attacks against the Jewish residents have escalated.

“They come in waves, and there have been more attacks since Operation Protective Edge,” she said. “Last month masked men started throwing stones and blocks at the local kindergarten and nearby houses. They’ve thrown firebombs at the preschool. They send firecrackers with launchers and attacked a school bus with rocks and black paint, to prevent the driver from seeing the road.”

Silwan is a hilly neighborhood of Jerusalem stone where Jews and Arab homes are intermixed and the occasional Israeli flag is hung, signaling a Jewish home. On a recent visit, the smell of raw sewage wafted down the street while men in knitted kippot bought food in a little hole-in-the-wall grocery store.

An Arab shopkeeper said he has “nothing against Jews or Christians or Muslims as neighbors if they truly want to live in peace.

“We haven’t had too many problems from the Jews who actually live here, but they invite troublemakers to the neighborhood who stir up trouble. And why is it that the Israeli electric company serves the Jews in Silwan while we rely on a Palestinian company?” he said.

Avi Briggs, international director of Regavim, a pro-settlement research institute and legal advocacy organization, said Arab homeowners know when they are selling to Jews, even through a third party, “because they are always willing to pay far more than the asking price.”

Briggs acknowledged that “a lot of the deals are done very secretly. They only come to light once Jews move in. By then the owners have either skipped the country or hidden themselves away due to the death sentence the Palestinian Authority imposes on anyone who sells property to Jews.

“The fatwa,” he said, “is what people should be angry about.”