July 27, 2022

Squatters rights and wrongs

by Gil Zohar

At the south end of Jerusalem between Givat ha-Matos and Beit Safafa lies a 552-sq m rocky hillside officially known as Bloc 30283, Section 15. The land and a ramshackle stone house there is registered in Tabu (the Israel Land Registry) to Yitzchak Herskovitz, who bought it in 1988 and has spent more than a decade trying to evict some 50 squatters there so that he can move in.

The Tsalach clan - members of the Tamari Bedouin tribe who hail from near Tekoa - are all in Israel illegally, says Herskovitz, just as they are on his property without right. His case is but one example of hundreds, if not thousands, of Palestinian households built on privately-owned Jewish land in Jerusalem and its environs.

Though downtown Jerusalem's tall buildings are plainly visible from the Tsalach homestead, to visit there is to enter some Third World favela far from contemporary Israel. Their property is located on a desolate, garbage-strewn street with no name. Lizards slither along the roadway. The place reeks of sheep manure.

Swarms of children, some of whom have picked up stones, warn me off their land in a decidedly unfriendly manner.

Armed with a press card and chutzpah, I pick my way down the rough hillside to the house. There is no staircase or path.

After some hesitation, Muhammad Tsalach, 30, succumbs to the ancient Bedouin tradition of hospitality and invites me into a bare room to drink tea. Two plastic chairs are produced. His grandfather, the paterfamilias Haj 'Ali, joins us while scores of ragged urchins peek in to stare at their uninvited, exotic guest. Muhammad launches into a rambling diatribe filled with prevarication over how many Bedouin live there and whether they hold Israeli residence cards.

He is concerned that I am affiliated with Herskovitz or the Jewish vigilantes who have been harassing his family and killing their sheep.

"The problem with Herskovitz is that he wants his 500 meters but he also wants us off all the land – four dunams," Muhammad says.

Apart from Herskovitz's land, the Tsalachs have squatted on a much larger area surrounding the house. No one seems to know – or care - to whom that acreage belongs.

Haj 'Ali Tsalach

Muhammad declines to pose for a photograph. His grandfather Haj 'Ali has no such compunctions. "I will die here. I have nowhere to go," he insists, staring blankly through eyes clouded by cataracts, stoking his pipe with pungent tobacco.

The Tsalachs refuse to budge, claiming their Beit Safafa homestead was given them by the village mukhtar, and that they have lived there for 47 years. They have produced a paper written in Arabic purporting to be a deed substantiating their claim to continue living and raising their sheep there.

That putative deed was examined by Mazap (the Institute for Criminal Identification) and rejected as a clumsy forgery. The revenue stamps of a young-looking King Hussein of Jordan were not franked, while the signatures of all the parties were determined to be the same handwriting.

The courts have come out on Herskovitz's side, to the despair of the Tsalachs – who face becoming nomads again. In October 2004 – a decade after the case was initially filed - Judge Yitzhak Milanov of the Jerusalem Magistrates Court ruled that the property belongs to the American immigrant, and the Tsalachs are trespassers.

Judge Milanov's ruling noted that in 1988 when Herskovitz purchased the property from Albert and Liba Gottesman, also from Los Angeles, the vendors discounted the land from $30,000 to $10,000 because of the refusal of the Tsalach clan to vacate. The Gottesmans in turn had bought the land in 1973 from the estate of Sambat Kasarjian, an Armenian Christian who died in the United States in 1966 while seeking medical treatment there.

Kasarjian's house was damaged by IDF shelling in the 1967 Six-Day War, and had been abandoned.

"I won the case in court, but the implementation is the problem," says Herskovitz.

According to him, the strategy of the Tsalach family's main lawyer, Mahmoud Dakla, has been to play for time in the hope that the 77-year-old plaintiff will die and the case with him.

In July 2006 on the eve of the implementation of Judge Milanov's court order, Dakla arranged a stay of execution on the deposit of NIS 10,000. Pending that appeal, the squatters were ordered to pay Herskovitz $250 monthly. Payment of that rent has been sporadic, invalidating the agreement, says Herskovitz's current lawyer Anat Ben-Dror.

"This is a civil dispute over ownership and not a political issue," she emphasizes. "A man bought a piece of land to live there and can't fulfill his right." Squatting and illegal construction have turned this corner of the Middle East into the Wild West, she says.

Yitzchak Herskovitz

In another bid to tie up the case in Israel's sclerotic justice system, in 2005 the Tsalachs filed a counter-claim of fraud in the Jerusalem District Court against both Herskovitz and the Gottesmans. That suit, which Herskovitz dubbed "malicious", was dismissed by Judge Yosef Shapira in July 2006. It was rehashed and heard again by Judge Shapira on July 9. Judgment was reserved.

In an earlier legal maneuver, Herskovitz was forced to hire a surveyor to validate the Hashemite-era survey which he acquired when he initially bought the land.

Mordechai Aharoni, an expert witness in the interpretation of aerial photographs, testified in court that the Tsalachs first set up their tents at the site in 1984. They only began to fix up the ruined structure there in 1990, he added, based on reconnaissance photos.

Matters came to a head, sort of, in June. Armed finally with a court judgment, Herskovitz went to the local police station to have the officers there carry out the eviction order.

"They evidently knew the property and the Arab Bedouins that are squatting on said property. Unbelievably the officer in charge did not want to accept the order, and told me that I must have my attorney present them with the order. I notified my attorney and he then presented the police with the eviction order. The police also refused to accept the eviction order from my attorney. They told him that if he wants to have the order enforced, then the order must specifically state that he is an officer of the court that has the authority to enforce the eviction order. He was also told 30 policemen would be needed to enforce the order, and that I as the owner of the property must pay for the eviction. This sounds crazy to me but we do live in a crazy land."

On July 2, having spent NIS 2,400 to hire backup cops, in addition to more than NIS 130,000 in legal fees, Herskovitz was frustrated yet again in his efforts to finally evict the squatters. With the police on hand ready to carry out the eviction order, another officer showed up with an injunction putting off the eviction pending yet another appeal.

But it was Herskovitz who the police prevented from attending the site during a right-wing protest on July 2.

"The police refuse to evacuate illegal Arabs while a civil court case is in progress," he sighs.

For Herskovitz, the issue is fraught with religious meaning. An Orthodox Jew, he views regaining his property as a matter of redeeming the Promised Land. He has declined an offer to sell his real estate to American tycoon Irving Moscowitz – a well-known supporter of Jewish settlement in East Jerusalem. "I'm not giving up my portion in the world to come," bellows the retired contractor.

Herskovitz lives in a drab trailer parked in a remote industrial park in Kiryat Arba. A lone wolf, he stubbornly refuses to move into more comfortable accommodations while waiting, and waiting, to finally realize his dream of settling in the house he bought almost 20 years ago.

* * *

If the Tsalachs are less than gracious hosts and not very effective in explaining their predicament, their current lawyer Alaa Mahajna tries very hard to overcome that negative image. His modern office is located on a-Zahra Street near the Philadelphia Restaurant - an eatery once popular with secular Jews from west Jerusalem until the 1987 Intifada but where few Jewish Israelis venture today. The law practice is headed by Mazen Qupty, a well-known lawyer in East Jerusalem. The office is decorated with some of the attorney's collection of paintings by contemporary Palestinian artists which he hopes will one day form the basis for a future National Gallery of Palestine.

"The word 'squatting' has a negative connotation," Mahajna begins in polished Hebrew, arguing that his clients enjoy protected tenant status by virtue of a law enacted by the Knesset on August 20, 1968.

Pointing to the three voluminous court files of the Tsalach case spread across his desk in a dizzying array of documents, Mahajna notes matter-of-factly "It's not a simple case."

What about Judge Milanov's determination that their Jordanian-era deed was a forgery?

"They're too simple to forge a document," he responds of his Bedouin clients, many of whom are illiterate sheep grazers.

Though reluctant to criticize a professional colleague, Mahajna notes that the Tsalach's original lawyer Muhammad Dakla made a mistake in basing his defense on ownership rather than his clients' status as protected tenants.

Mahajna, a 28-year-old graduate of the Hebrew University's law school originally from a village near Nazareth, specializes in protected tenancy matters.

"Even if one fails to establish ownership, after 40 years of living there, they're protected tenants. They're not squatters."

He then cites a litany of abuse his clients have suffered: in 2003 Siha Tsalach was attacked by vigilantes and was hospitalized for two days with head injuries; the following year her husband Isma'il spent eight days in hospital after being assaulted, he notes.

Like Herskovitz's attorney Ben-Dror, Mahajna is reluctant to make the Tsalachs into political symbols. "It's an existential question for them, not a political issue," he insists. They simply have nowhere else to go. Except back to the desert.

But in Jerusalem land disputes between Jews and Arabs always devolve back to politics. "Why should this family pay the political price? They're simple people."

* * *

Standing on the runway of the abandoned Atarot Airport in northern Jerusalem, Aryeh King - an activist with a NGO called the Public Office of East Jerusalem (POEJ), points out hundreds of illegal buildings erected by Arabs on Jewish-owned land. Within the last five months, Bedouin have set up their tents at the end of the runway, he notes.

The desolate airport is a metaphor for what is happening across the eastern side of the city, says King. Whether by gross negligence or the efforts of shady land dealers and straw men, more than 3,000 dunams of land in East Jerusalem owned by Jewish individuals, the State of Israel or the Jewish National Fund have been squatted on by Arab homesteaders, he says.

In 1995 gunshots fired at airplanes taxiing on the runway from nearby buildings forced the closure of Jerusalem's only airport, he continues. Since then the Arab multi-family buildings, some as high as eight stories, have continued to encroach on the British Mandate era airfield.

The construction of the separation barrier has only exacerbated the land-grab, King says, since some of the Jewish-owned lands are "orphaned" on the eastern side of the barrier. De facto, he says, those dunams has been lost to the Jewish people.

The nearby Qalandiya refugee camp was built on land acquired by the Jewish National Fund and Baghdadi Jews before 1948, King explains. Housing Ministry officials estimate the Jewish-owned land in Qalandiya is worth $35 million.

Land title is often complicated in Jerusalem, he explains. Some parcels of raw land in Abu Dis and other locations were purchased by Jews living in Iran before 1948. The real estate was never developed. The owners and the heirs ended up living in Beverley Hills, and neglected their purchases.

Land seized by the Kingdom of Jordan in 1948 as Crown Land was taken over in 1967 by Israel's Custodian of Absentee Property as state land. Similarly under the Absentee Property Law enacted in 1950, the land of those Palestinians who fled or were driven off was seized and transferred to the Custodian of Absentee Property.

Today about 90 per cent of the country is owned by the Israel Lands Authority, while the second largest land owner is the Jewish National Fund.

"The JNF doesn't do anything; the Arabs do," King says.

Standing in Pisgat Ze'ev, a post-1967 suburb in northern Jerusalem, King points out a grove of 40-year-old trees in the wadi below. The copse is all that is left of the once extensive Shuafat Forest, which the JNF planted following the June 1967 Six-Day War to contain the refugee camp. But over the years the trees were uprooted to make way for unlicensed construction. A few scattered pines stand testimony to the wholesale destruction and land grab.

With the construction of the separation barrier between Shuafat and Pisgat Zeev, the land – all inside Jerusalem's municipal boundaries - has been lost, King explains. "Because of the wall, the JNF has an excuse 'We cannot get there.'" he notes.

A similar vision awaits visitors at Tell al-Ful, the Biblical Givat Shaul where King Saul held his court. Old-timers like this reporter remember after the Six-Day War the Society for the Society for the Protection of Nature in Israel would lead hikes to the desolate hill to inspect the unfinished palace being built there by Jordan's King Hussein. "Here there is neither law nor judge," King says of the wholesale lawlessness of the ongoing land grab.

King faults the Israel Antiquities Authority for not protecting the site: today the tell is ringed by Palestinian houses. "If they're Arabs, they can do whatever they want."

King also faults the Hebrew University of Jerusalem for abandoning land. In 2004 the university sold 96 dunams in Ashkariyya near Ramot to the Palestinian Authority's Housing Authority for $11,000 per dunam – notwithstanding that King had offered significantly more.

King is seeking a ruling from the Jerusalem District Court annulling the sale because partners in the deal were not offered first right of refusal.

King, who has become self-taught in law over the three years he has been with POEJ, marks his successes with court dates and legal victories. He points out a ruined house in Ashkarriya illegally built on private land against which he obtained a demolition order five months ago. But then three new houses were promptly erected.

In January King filed a lawsuit against the Government of Israel seeking the release of all files of the State Custodian for Abandoned Property in Jerusalem. At the behest of the state attorney, the hearing has been postponed four times, he says. In that suit King took documents filed by Peace Now and changed a few words, he says with a note of satisfaction.

But the courts are unsympathetic, he charges. Two years ago the grandchildren of former Jerusalem Chief Rabbi Chaim Sonnenfeld sold a bloc of land they had inherited in Beit Haninah after despairing of ever getting a court order to clear off the squatters.

Similarly in Abu Dis, al-Quds University has been built partly on land that belongs to Rabbi Shimon Eider of the Beth Medrash Govoha in Lakewood, New Jersey. The world renowned halachic authority's father was part of a group of 210 Jews who bought 598 dunams in Abu Dis between 1924 and 1928.

King vows to continue his Sisyphusean struggle over the future of the city. "Jews are collaborating with Arab lawyers. Arabs cannot succeed in Jerusalem without the help of Jews," he shrugs. "It's said to say, but Jews are still Jews, and money talks."

The abandonment of state and private land to squatters is not quite as bleak as King portrays it. On May 8, the Israeli government demolished two buildings in East Jerusalem – a structure in Wadi Joz that served as a center for disabled children and a private house in Issawiya just to the north of the Hebrew University's Mount Scopus campus, as well 30 structures in an “unrecognized” village of the Negev.

The Issawiya house belonged to Daud and Hussein Nasser, and was home to 16 Palestinians. The house was inside the limits of the urban master plan that Bimkom, a non-governmental organization working to change planning processes and practices, is preparing for the village. The process of obtaining a building permit for the Nasser home was underway.

According to Meir Margalit, the field coordinator of the Israeli Committee Against House Demolitions (ICAHD), due to the negotiations between Bimkom and the municipality of Jerusalem, there was an extra-official agreement that the municipality would not demolish houses inside this area as long as no more illegal building occurred. Notwithstanding this agreement, Safra Square officials unexpectedly demolished the Nasser home.

Since the zoning of almost all open land in Palestinian East Jerusalem by the Israeli Government as “open green space” after the 1967 war (and since Palestinians would not be allowed to live in Jewish West Jerusalem), there is little space at all for the Palestinians, says ICAHD.

The reasons are political, not urban. Amir Cheshin, former Jerusalem Mayor Teddy Kollek’s Advisor on Arab Affairs and one of the architects of the post-1967 policy, describes the intention in detail in his book Separate and Unequal: The Inside Story of Israeli Rule in East Jerusalem (Cambridge: Harvard University Press, 1999, pp. 31-32):

"[In 1967], Israel’s leaders adopted two basic principles in their rule of East Jerusalem. The first was to rapidly increase the Jewish population in East Jerusalem. The second was to hinder the growth of the Arab population and to force Arab residents to make their homes elsewhere. It is a policy that has translated into a miserable life for the majority of East Jerusalem Arabs…. Israel turned urban planning into a tool of the government, to be used to help prevent the expansion of the city’s non-Jewish population. It was a ruthless policy, if only for the fact that the needs (to say nothing of the rights) of Palestinian residents were ignored. Israel saw the adoption of strict zoning plans as a way of limiting the number of new homes built in Arab neighborhoods, and thereby ensuring that the Arab percentage of the city’s population – 28.8% in 1967 – did not grow beyond this level. Allowing “too many” new homes in Arab neighborhoods would means mean “too many” Arab residents in the city. The idea was to move as many Jews as possible into East Jerusalem, and move as many Arabs as possible out of the city entirely. Israeli housing policy in East Jerusalem was all about this number game."

When drawing the zoning boundaries for the Arab neighborhoods, planners with the city engineer’s office limited them to already built-up areas. Adjoining open areas were either zoned “green,” to signify they were off-limits to development, or left unzoned until they were needed for the construction of Jewish housing projects. The 1970 Kollek plan contains the principles upon which Israeli housing policy is based to this day – expropriation of Arab-owned land, development of large Jewish neighborhoods in east Jerusalem, and limitations on development in Arab neighborhoods."

Destroying Palestinian homes and communities has become an obsession with Israel; proceeding without pause, says ICAHD. These actions contravene not only the spirit, but also the letter of the moribund Road Map, which demands in Phase 1 already that, “the Government of Israel ends actions undermining trust, including attacks in civilian areas and confiscation / demolition of Palestinian homes / property…as a punitive measure or to facilitate Israeli construction.”

For planners like Efrat Cohen-Bar, the fundamental problem is the lack of an approved urban master plan in most East Jerusalem neighborhoods which would allow the issuing of building permits.

Cohen-Bar works for Bimkom (Planners for Planning Rights), an NGO founded in 1999 by planners and architects concerned about human rights concerns in their spatial and urban planning work. Bimkom focuses is especially active with the problem of Bedouin living in unrecognized villages.

Pending the enactment of an urban master plan by the Ministry of the Interior, the sprawl of unlicensed Arab construction will continue unabated due to the near impossibility of obtaining a building permit.

For Amos Gil, the executive director of Ir Amim ("City of Nations" or "City of Peoples"), an Israeli non-partisan organization founded in 2004 that works for an equitable and stable Jerusalem with an agreed political future, the emphasis on legal claims – whether real or pseudo - to deal with squatting and related land issues in East Jerusalem is secondary to the motives of the parties and the State of Israel.

"Two communities, two groups, share the space in and around Jerusalem. History has known many periods during which each side has had the upper hand in the area in terms of land control, the backing of the authorities, and following (or not following) formal procedures of land acquisition. How to take the Turkish-days norms and traditions and apply them to the legal practices of current days, for example, is known to be a very hard task, one that does not usually play in the favor of those who can only base their claims on tribal traditions or on past-days norms. This is certainly the case when the authorities today have a political preference in the matter.

"Therefore, discussing this issue in terms of 'historical justice' or 'legal allocation of lands' etc. is not the real story. The real story is the battle over controlling as much space as possible. And in this battle each side uses whatever means they have at their disposal: legal arguments – based or not based – are just one such tool. Similarly, each side would use whatever claim, tradition, memory, historical 'truth', religious-based quotation that would serve them the best, and in each side's version there are many holes, many half-truths, many inaccuracies, many wishes-come-true that are portrayed as concrete facts.

"Everything can be justified if presented outside of its true context. But this is indeed the core issue: the battle between two communities over one piece of land exceeds a real-estate battle between individuals. And the battle between the two peoples in our area cannot be won by legal means or by story-telling. Only a clear and sensible policy, dictated by common-sense and by the realization that in this battle nobody can have the upper hand – only such policy may allow for some quiet and feasible arrangements on the ground. Indeed, some individuals on both sides may see themselves hurt as they will have to give up what's 'theirs. But the general publics on both sides can only gain from such a changed policy."

The squats

In Western countries, squatting enjoys a certain glamour. Sid Vicious of the Sex Pistols fame lived in a squat in London during the 1970s. Copenhagen's Christiania squat, founded in 1971 in a recently decommissioned army barracks, has become a tourist attraction known for its drugs and bonhomie, even as it grown into a thorn in the side of the Danish government.

Squatting is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent or otherwise have permission to use. Squatting is significantly more common in cities than rural areas, especially when urban decay occurs. According to author Robert Neuwith's 2004 study Shadow Cities: A Billion Squatters, A New Urban World, there may be as many as one billion squatters globally, or about one of every seven people. In Mumbai, India, it is estimated half of the city's 12 million inhabitants are squatters.

Squatters often claim rights over the spaces they have seized by virtue of occupation rather than ownership; in this sense, squatting is similar to adverse possession, sometimes called "squatters' rights", by which a possessor of real estate without title may eventually gain legal title to the property.

- G.K.