Private landowners, urban planners and political activists grapple with territorial disputes in east Jerusalem.
By GIL STERN STERN ZOHARbeduin 88(photo credit: )
At the southern end of Jerusalem between Givat Hamatos and Beit Safafa lies a 552-sq.m. rocky hillside officially known as Block 30283, Section 15. The land and a ramshackle stone house on it are registered in the Israel Land Registry to Jacob Goldberg (not his real name), who bought the property 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 Beduin tribe who hail from near Tekoa - are all in Israel illegally, says Goldberg, 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. Ownership issues, which present unique challenges to urban planners, are often contested for years in the legal sytem, but activists claim political agendas influence their resolution.
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 Beduin 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 Tsalach launches into a rambling diatribe filled with prevarication over how many Beduin live there and whether they hold Israeli residence cards. He is concerned that I am affiliated with Goldberg or the Jewish vigilantes who he says have been harassing his family and killing their sheep.
"The problem with Goldberg is that he wants his 500 meters but he also wants us off all the land - four dunams," he says.
Apart from Goldberg'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.
Muhammad Tsalach declines to pose for a photograph. His grandfather 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 to 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 of the same handwriting.
The courts have come out on Goldberg'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 Magistrate's Court ruled that the property belongs to the American immigrant, and that the Tsalachs are trespassers.
Milanov's ruling noted that in 1988 when Goldberg 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 Six Day War, and had been abandoned.
"I won the case in court, but the implementation is the problem," says Goldberg.
According to him, the strategy of the Tsalach family's main lawyer, Mahmoud Dahleh, has been to play for time in the hope that the 77-year-old plaintiff will die and with him the case.
In July 2006 on the eve of the implementation of Milanov's court order, Dahleh arranged a stay of execution on the deposit of NIS 10,000. Pending that appeal, the squatters were ordered to pay Goldberg $250 monthly. Payment of that rent has been sporadic, invalidating the agreement, says Goldberg's 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.
In another bid to tie up the case, in 2005 the Tsalachs filed a counter-claim of fraud with the Jerusalem District Court against both Goldberg and the Gottesmans. That suit, which Goldberg dubbed "malicious," was dismissed by Judge Yosef Shapira in July 2006. It was rehashed and heard again by Shapira earlier this month. Judgment was reserved.
In an earlier legal maneuver, Goldberg was forced to hire a surveyor to validate the Hashemite-era survey 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 the ruined structure there in 1990, he added, based on reconnaissance photos.
Matters came to a head, sort of, in June of this year. Armed finally with a court judgment, Goldberg went to the local police station to have the officers there carry out the eviction order.
"They evidently knew the property and the Beduin who are squatting on the 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 she then presented the police with the eviction order. The police also refused to accept the eviction order from my attorney."
On July 2, Goldberg's efforts to evict the squatters were frustrated yet again. 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.
For Goldberg, 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.
Goldberg 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.
"The word 'squatting' has a negative connotation," Mahajna says, 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 court files of the Tsalach case spread across his desk, Mahajna notes matter-of-factly, "It's not a simple case."
What about Milanov's determination that their Jordanian-era deed was a forgery? "They're too simple to forge a document," he says of his Beduin clients, many of whom are illiterate sheep grazers.
Though reluctant to criticize a professional colleague, Mahajna notes that the Tsalach's original lawyer Dahleh made a mistake in basing his defense on ownership rather than his clients' status as protected tenants.
Mahajna 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 says.
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 the hospital after being assaulted.
Like Goldberg's attorney, Mahajna is reluctant to turn the case into a political symbol. "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."
STANDING ON the runway of the abandoned Atarot airport in northern Jerusalem, Aryeh King - an activist with the NGO Public Office of East Jerusalem (POEJ) - points out hundreds of illegal buildings erected by Arabs on Jewish-owned land. Over the past five months, Beduin have set up 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 (JNF) 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 security fence 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 have been lost to the Jewish people.
The nearby Kalandiya refugee camp was built on land acquired by the JNF and Baghdadi Jews before 1948, King explains. Housing Ministry officials estimate the Jewish-owned land in Kalandiya is worth $35 million.
Land title is often complicated in Jerusalem, King 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 Beverly 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 1950 Absentee Property Law, the land of those Palestinians who fled or were driven off was seized and transferred to the Custodian of Absentee Property.
Today about 90 percent of the country is owned by the Israel Lands Administration, while the second-largest land owner is the JNF.
"The JNF doesn't do anything; the Arabs do," King says.
The situation is not quite as clear cut as King portrays. On May 8, the 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 north of Mount Scopus, as well as 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 the NGO Bimkom: Planners for Planning Rights is preparing for the village, and the process of obtaining a building permit for the Nasser home was under way.
According to Meir Margalit, the field coordinator of the Israeli Committee Against House Demolitions (ICAHD), due to the negotiations between Bimkom and the Jerusalem Municipality, 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, municipal officials unexpectedly ordered the Nasser home demolished.
SINCE THE zoning of almost all open land in east Jerusalem by the government as "open green space" after the 1967 war , there is little space for the Palestinians to live, says ICAHD.
The reasons behind such a policy are political, not urban, explains Amir Cheshin, former Jerusalem mayor Teddy Kollek's adviser on Arab affairs and the author of Separate and Unequal: The Inside Story of Israeli Rule in East Jerusalem.
"[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," Cheshin writes.
"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."
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," writes Cheshin.
Destroying Palestinian homes and communities has become an obsession with Israel, proceeding without pause, the ICAHD claims on its Web site.
For planners, 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.
Pending the enactment of an urban master plan by the Interior Ministry, 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, which describes itself as an organization that promotes Israeli-Palestinian coexistence in Jerusalem, the emphasis on legal claims - whether real or pseudo - in dealing 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," says Gil.
"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," he says.
"Everything can be justified if presented outside its true context," continues Gil. "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 storytelling.
"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."
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