Although the bigger issues headlining the current dispute at Sheikh Jarrah and the Temple Mount are about nationalism and religion, the immediate impetus for the crisis comes out of the little understood Absentee Assets Law.
How did this law come about historically, what does it mean today and why does it seem to favor Jews over Arabs?
Dating back to 1950, just after the 1948-1949 War of Independence, the law was used to take over homes and lands that Arabs had left empty or abandoned during or following the fighting.
With Israel, the Palestinians, Jordanians and all other neighbors in a frozen state of war, many people were not returning “home,” so no one was being evicted.
Jordan confiscated vacant properties which Jews might have previously owned and Israel confiscated vacant properties which Arabs might have previously owned.
It was just a question of using land which would otherwise remain vacant.
It did not apply to east Jerusalem at all because, at the time and until 1967, Jordan had control over all of east Jerusalem.
By taking control of east Jerusalem in 1967, a geopolitical development, Israel in some ways broke the tenuous legal balance.
Fast forward several decades to the current and recent controversies concern to what extent the state can do the same in east Jerusalem, with all of the legal, political and international issues involved.
Around 300 Arabs, some of whom have lived in Sheikh Jarrah for over 70 years, could be evicted by the Nahalat Shimon Company, which seeks to expand Jewish housing in east Jerusalem, if the High Court does not step in and overturn lower court rulings in favor of eviction.
According to the lower court, the cases are open and shut.
Arabs may have lived in Sheikh Jarrah for 70 years, but the property was never transferred into their names, and Nahalat Shimon purchased the properties from the actual, listed landowners.
Critics have said that this ignores the chaos that many Palestinian Arabs endured while under Jordanian rule from 1948-1967 and that Amman never expected to lose control of east Jerusalem to Israel.
If it had foreseen what might transpire two decades later and that its land records could make a difference in Israeli court proceedings in 2021, maybe Jordan or the Palestinians would have been more careful.
IN ANY case, critics can argue that this is no simple land records issue and also that in many cases, Nahalat Shimon paid such a minuscule amount of the actual value to the sellers, sometimes the state, that their purchases were not authentic.
Critics also say that it cannot be that Jews can make such purchases to get Jewish lands “back,” while there is no comparable way for Arabs to get their lands “back” in Israel proper.
Similar arguments are made by critics about Israel’s Law of Return favoring Jews versus Palestinians.
Yet, in some ways, the Absentee Assets Law angers critics even more.
There is an understanding among some critics that citizenship and entering a country often incorporate certain nationalistic and ideological considerations. But property law is supposed to be straight up equal and fair for everyone.
Supporters of eviction can point out that the other side of the inequality is that Jews cannot live in Jordan or PA-administered areas, even as a small minority.
Solutions on the more political Left of the spectrum have varied from saying that if Jews get land “back,” then Israel needs to give some kind of comparable land “back” to east Jerusalem Arabs, to saying that the east Jerusalem Arabs get to stay, and Nahalat Shimon can get compensation for having to give up its property rights.
In any case, the lower court result based on the simple question of land records is not a satisfying outcome for most of the world – even Israeli allies like the US, Canada and some in Europe.
While there may be no current peace process, most of the planet does want Jerusalem’s current status frozen so that if negotiations between Israel and the Palestinians restart, there will still be an east Jerusalem to give to Ramallah.
ANOTHER TWIST is that the state has been inconsistent in applying the law over the years, sometimes invoking it and sometimes not.
Former attorneys-general Menahem Mazuz and Meir Shamgar, as well as other prominent legal officials, previously opposed its use.
Then in 2015, the High Court of Justice, along with then-attorney-general Yehuda Weinstein, seemed to strike a compromise.
On the one hand, an expanded seven-justice panel of the court, including Israeli-Arab Justice Salim Joubran, upheld the law’s constitutionality. On the other hand, they only did so after Weinstein already had notified the court that the state would refrain from applying the law.
Why did the High Court rule as it did?
The justices explained in 2015 that if they declared the law unconstitutional, this could retroactively open up an unimaginable “Pandora’s box” of litigation over past confiscations.
At the time, the petitioner Adalah, a human rights organization, asserted that if there has been injustice, it must be undone regardless of the inconvenience and ensuing litigation, but the court overruled their argument on pragmatic grounds.
Just as now, when Attorney-General Avichai Mandelblit did not get involved until the issue reached the High Court, Weinstein too was brought in, seemingly against his will.
The justices wanted Weinstein to give them some kind of pragmatic solution, like the one which he ended up producing.
In 2015, at least two justices wrote that if, according to the letter of the vaguely worded Absentee Assets Law, east Jerusalem Arabs could be evicted, then the same wording could also be absurdly applied to Israeli security forces serving in an enemy state – because part of the law allows for confiscating property of a prior owner who has moved to an enemy country without any differentiation of purpose.
However, given that the law is now six years older than it was in 2015, the Pandora’s box that the High Court would open if it nixed the law would be even deeper today.
The question is whether Mandelblit and the court will reach some similar creative compromise as it did in 2015, whether a new government might freeze the issue indefinitely or whether the – and all of the geopolitical backlash that will come with them – will finally go forward.