Readers are reminded that demographic manipulation and population transfer in occupied territories are both war crimes and crimes against humanity. With particular regard to Jerusalem, the UN Security Council has repeatedly affirmed that such changes to the demographic composition are null and void. Moreover, an occupier’s alteration of the legal system in an occupied territory is a violation of the prohibitions in The Hague Convention Respecting the Laws and Customs of War (1907), Article 43—HLRN.
Settlers Took Over an East Jerusalem Home. They Didn`t Know Who They Were Messing With
Imagine that a right-wing group that aims to Judaize the Palestinian neighborhood of Sheikh Jarrah takes over your grandfather`s house, pockets the tenants` rent money and tries to evict them. But this time the group provoked Michael Ben-Yair, a former attorney general.
The meeting, which took place in 2019 in the offices of the government`s Custodian of Absentee Properties Department, was exceptional. At one end of the table sat the custodian general, Sigal Yakobi, and next to her Hananel Gurfinkel, who was in charge of the department`s East Jerusalem portfolio. Facing them was a former Israeli attorney general, Michael Ben-Yair, and his lawyer, Michael Sfard, one of Israel`s leading human-rights attorneys.
On the agenda was the ownership of an old house in the Sheikh Jarrah neighborhood of East Jerusalem, where Ben-Yair lived until the age of 5, in 1948. In a bizarre and also dubious legal process, and to the acute displeasure of Ben-Yair, ownership of the house had previously not been restored to his family but rather handed to a right-wing nonprofit, Meyashvei Zion – Settlers of Zion – whose aim is to bring Jewish residents into this Arab neighborhood.
Hananel Gurfinkel has for years held high positions in the custodian`s unit, even though—or perhaps because—he was the founder of another organization dedicated to the Judaization of Jerusalem. In the 2019 meeting, according to Ben-Yair, Gurfinkel stated that a conclusive judgment already existed and that Ben-Yair`s family had no claim to the property, which was
"Yakobi didn`t respond, she backed him up," Ben-Yair, now 82, relates. "The feeling was that there was nothing to be done: There was a hekdesh [charitable trust], and the hekdesh was the owner of the property, and the court had decided. But just as we were about to leave the meeting, feeling mournful and mortified, she [Yakobi] opens the hekdesh deed, and she says, crestfallen, `But this is actually a family hekdesh.`"
In Israeli law, a family hekdesh resembles a will, and is intended to insure that properties will be handed down to a family`s coming generations. This is in contrast to a religious hekdesh, which transfers properties to the community or to the use of a synagogue. Everyone present was taken aback.
That moment launched a six-year legal and political saga that ended recently with Ben-Yair`s victory: He successfully prevented settlers from seizing his grandfather`s house and from evicting the Palestinian family living there. But before that happened, Ben-Yair had to prove that he was truly his grandfather`s grandson, respond to the argument that he was not entitled to inherit the property because he`s against the neighborhood`s Judaization, and finally to forgo the rent money that Jewish settlers had collected from the Palestinians at the expense of his family.
On this long and twisting road, the depth of cooperation between state authorities and the settlers` organization also came to light. "If that`s what happened to a person who can hardly be termed enfeebled," Sfard says, "imagine what chance a Palestinian from the eastern part of the city has, when he has no access to information, no resources and no lawyer. How impossible it is for people who are victims of this system."
* * *
Michael Ben-Yair`s father was an immigrant from Persia; his mother was born in Mandatory Palestine to parents of Georgian descent. By the time he was born, the family was living in a small neighborhood of Jerusalem called Nahalat Shimon, a densely populated Jewish enclave within Palestinian Sheikh Jarrah.
In "The Rose and the Thorns," his memoir about the neighborhood, the scholar and human-rights activist Hayim Tawil wrote, "There was terrible poverty, manifested in severe overcrowding in the homes and in the fact that the buildings stood so close to one another. And [manifested also] in the small size of the rooms in which the children huddled, their meager and ridiculously small quantity of clothing, and the absence of medication. The narrow alleys were unpaved, and in some places there were piles of garbage or rocks that had rolled down. There was no green in our neighborhood, not a tree, not a flower and no other stain of color other than the laundry that stretched from house to house."
Ben-Yair`s family was better off than others. They lived in one of the neighborhood`s largest homes: a two-story structure with a tiled roof and a grocery store in the front. The store, which catered to Jews and Arabs alike, was run by Michael`s grandmother, Sarah Jannah Shvili. In 1927, Grandmother Sarah went to the Jerusalem rabbinical court in order to arrange for the disposition of her property after her death. Ben-Yair is certain that her aim was to draw up a will to divide the house between her daughter (his mother) and her two sons from a previous marriage. But instead of a will, she emerged from the court with a deed for a charitable trust.
In early-20th century Jerusalem, creation of a hekdesh was a very common way to protect and hand down real estate. The deed, which was signed by rabbinical judges, stipulates who will possess the property and how they will manage it. The Sarah Jannah Hekdesh, which is formulated in a manner typical of the time, provides for the division of the house between the children and for its inheritance by their descendants in perpetuity.
The deed concludes, as is customary with such documents, "If, heaven forbid, no sustainable seed shall remain to any of the beneficiaries of the above hekdesh, then his share shall become a hekdesh for the benefit of the Georgian synagogue in the Nahalat Shimon neighborhood."
Ben-Yair retains few memories from the house and the neighborhood. He was 5 when the War of Independence broke out and the Jews of Sheikh Jarrah, which was on the front line, were evacuated. The evacuees were temporarily housed in a school of the international Alliance network in Jerusalem.
"I remember pictures of us as refugees in the school, family after family, bed after bed," Ben-Yair says.
After several weeks in the school, Ben-Yair`s family was provided with alternate housing by the newborn state from abandoned Palestinian property in the west of the city. The same sort of compensatory arrangement, he adds, applied to all the evacuees from Nahalat Shimon. "We received two apartments on Jaffa Road, near the Central Bus Station, and my grandmother also received a store in Romema. We were refugees and received compensation, not from the state, not from the Jewish Agency, but in the form of the abandoned Arab property. The Arab refugees received compensation from the abandoned Jewish property."
“We were refugees and they were refugees, we resided in abandoned homes and they resided in abandoned homes. It`s hard to talk about justice in wartime – but still, that`s a type of justice.”
—Michael Ben-Yair
In 1950, the Knesset passed the Absentees Property Law, under which all the property left behind by Palestinian refugees in West Jerusalem and in the rest of Israel was expropriated with no quid pro quo. In 1970, following the conquest of the West Bank and unification of Jerusalem in the Six-Day War, the Knesset enacted additional legislation that allowed Jews to claim abandoned property that they had previously owned in East Jerusalem.
Thus, the Ben-Yair family, like many Jewish families that had left property behind in 1948, was effectively offered dual compensation: both the assets that were abandoned by Arabs in the west of the city and the original assets belonging to the family in the eastern part of the city. This method was made possible because the Jordanian custodian of enemy property chose in 1948 to act in an opposite mode from his Israeli counterpart. Whereas Israel transferred all the abandoned Palestinian property to the aegis of the state, the Jordanians meticulously kept the properties registered in the name of the original Jewish owners.
Thus, Ben-Yair relates, the custodian offered Jewish property owners in East Jerusalem the opportunity to reclaim their assets. "My father and mother were still alive, and the idea never crossed our minds," he says. "I remember that my mother and my sisters went to Sheikh Jarrah. My mother went into the house and said hello to its owner. The woman thought she was going to be evicted, and my mother told her, `Live here, it`s yours.`
"And my mother was born in 1910, she`s not crazy left like today," he continues, ironically. "We were refugees and they were refugees, we resided in abandoned homes and they resided in abandoned homes. It`s hard to talk about justice in wartime – but still, that`s a type of justice."
In later years, the family sold the properties in West Jerusalem and moved to Ramat Gan. Ben-Yair attended the military boarding school in Haifa and the Reali School in the city. After his army service he enrolled for law studies at the Tel Aviv branch of the Hebrew University. Following a short career as a lawyer, he was appointed a judge in Jerusalem Magistrate`s Court, then in the Tel Aviv District Court. In 1993, Justice Minister David Libai appointed him attorney general, in the government led by Yitzhak Rabin.
On 19 September 1995, Ben-Yair convened a meeting with the commissioner of police and a representative of the Shin Bet security service about the incitement then prevalent on the right against the prime minister, in the wake of the Oslo Accords. On November 4, he went with his wife, Niva, to see the film "Il Postino: The Postman."
"It`s an Italian movie about a labor leader who is murdered at a gathering of workers," Ben-Meir recalls. "When we came out of the movie, my wife said she hoped things would end better here. Just then a teenager came up to me and asked if I was Michael Ben-Yair. I said I was and he told me that Rabin had been shot."
Ben-Yair went to Ichilov Hospital, where Rabin had been taken, and then to a cabinet meeting at the Kirya – defense establishment headquarters, in Tel Aviv – where Shimon Peres was declared acting prime minister. "My daughter was married a month before the assassination, and Rabin was at the wedding," Ben-Yair recalls. "He sat at a table with [Supreme Court President Meir] Shamgar. They couldn`t know that a month later Shamgar would head a commission to examine the murder of his fellow guest."
In June 1996, when Benjamin Netanyahu became prime minister, Ben-Yair considered stepping down, but decided to stay on. "I didn`t want it [the attorney general`s position] to become a political job. Attorney general is a professional position that should tolerate a change of government," he says. The crisis point from his perspective came three months later, in September 1996.
"There was a cabinet discussion at [Jerusalem Mayor Ehud] Olmert`s request about the use of means of enforcement against the Muslim Waqf [charitable endowment] for minor construction on the Temple Mount. In the meeting I said that we also needed to consider the potential consequences of enforcement activity – for example, a serious breach of public order. After me, Ami Ayalon, the head of the Shin Bet, spoke and seconded what I said. I told them that if you want the whole world to gang up on you, do what Olmert is asking.
"The prime minister said, `I accept the position of the attorney general – no enforcement measures will be taken.` I went home happy and contented. That was on Friday. On Monday evening, after the end of Yom Kippur, I see Olmert with a pickaxe opening the entrance to the Western Wall Tunnel, and then disturbances break out."
One-hundred Palestinians and 17 Israeli soldiers were killed in the unrest that followed the opening of that tunnel. "I was stunned, I tried to find out what happened," Ben-Yair relates. "It turned out that after we`d left the cabinet meeting, the prime minister, the mayor of Jerusalem and two or three other ministers – without the [presence of the] defense minister and without Ami Ayalon – decided that if there was to be no enforcement up top on the Temple Mount, then the tunnel below would be opened.
"On that day," Ben-Yair adds, "I told myself that this man [the premier] was an adventurer, a charlatan, dangerous. Despite this, I didn`t want to resign over this issue." Only in December did Ben-Yair inform the justice minister that he was leaving.
"When Netanyahu talked about the need to protect the courts" – something the prime minister once said with some frequency – "it was mere verbiage, empty words, it didn`t reflect his real view – he`s an actor, and he play-acted. That man and the rule of law are as far apart as Washington is from Gaza."
* * *
Standing by Olmert`s side that evening, when the opening to the Western Wall Tunnel was made, were several key figures in the effort to settle Jews in the Palestinian neighborhoods in East Jerusalem. Among them were Mati Dan, the head of the Ateret Cohanim organization, and the American physician and businessman Irving Moskowitz, who was the patron of the settlers in Jerusalem. The event also marked the start of a period – which is still ongoing – in which the settlers` organizations in Jerusalem thrived.
One of the methods that was refined in those years in Jerusalem by settler NGOs was to seize or purchase property that was registered as Jewish-owned and evict the Palestinian residents, replacing them with settlers. This was done in the Muslim Quarter of the Old City, in the Silwan neighborhood and also in Sheikh Jarrah. In 2009, a first Palestinian family was expelled from Sheikh Jarrah, and the following year two more families.
Weekly demonstrations of Israeli and Palestinian activists opposed to the evictions and settlement in general began to be held in the neighborhood. Ben-Yair, who by them had retired, following a lengthy judicial career that also included an appointment as a temporary justice in the Supreme Court, took part in the demonstrations. He told the demonstrators that he had been born in the neighborhood, something he also wrote about in a brief memoir from 2013 titled "Sheikh Jarrah." He termed the state`s behavior there "breathtaking folly," adding, "To take action that brings about the opening of 1948 files," referring to actions accompanying the state`s founding, "is simply stupidity, it`s pulling the rug from under your feet."
Ben-Yair was certain that because no one from his family had claimed ownership of the house, or sold the rights to settlers, the status of the Palestinian tenants was secure. In one of the demonstrations, he recalls, the writer David Grossman was standing next to him. "I pointed to the house, from which a Palestinian flag was flying, and told him that I had been born there and that I wasn`t shedding a tear over it."
What Ben-Yair didn`t know was that for years, under his nose, in the case of that very house, the very process against which he was demonstrating had been underway.
The settlers` effort to gain control of the Sarah Jannah House was launched in 2002, when the building came under the scrutiny of right-wingers who were investigating systematically the legal status of every structure in the neighborhood. Two representatives of the Settlers of Zion group, which was very active in Sheikh Jarrah, were appointed, at their request, by the rabbinical court in Jerusalem (which continued to have authority over disposition of the hekdesh) to be the court`s emissaries in the matter of the Sarah Jannah hekdesh, in order to contact the relevant authorities and locate the heirs.
In a surprisingly short time, the two – Tzachi Mamo and Oren Shefer – reported back to the court that the heirs could not be found and that they therefore proposed themselves to serve as trustees of the hekdesh. The custodian general, who managed the Jewish property in East Jerusalem, objected to the request because it was a private, family hekdesh and as such it was imperative to locate the heirs. But beyond the written objection, he made no effort to find the owners.
Ignoring the custodian`s opposition, the rabbinical court appointed Mamo and Shefer as trustees. The two then asked the custodian general to release the house to hekdesh. Even though the official had made it clear that the hekdesh was private, he acceded to the request and even granted Mamo and Shefer almost a quarter of a million shekels (today about $70 million) that had been collected as rent from the Palestinian tenants over the years.
Henceforth, the rent began to flow directly to the two. The profits were invested in beefing up Jewish settlement in the area, they informed the court. No one stopped to ask whether it wasn`t odd that not a single heir had been found of a Jewish family that lived in Jerusalem in 1948. A simple examination in the records of the Interior Ministry would have revealed that the heirs of Sarah Jannah, an Israeli citizen who lived a long life, were listed there. One of them, in fact, was a well-known figure who then held a very senior position, a judgeship, in the same ministry to which the Custodian of Absentee Property is subordinate. Instead, the authorities and the court allowed Settlers of Zion to enjoy the revenues – about 40,000 shekels a year.
If that weren`t enough, in deliberations held in the rabbinical court about the hekdesh, the rabbis effectively changed Sarah Jannah`s will. "We order activity to be pursued according to the purpose of the hekdesh, which is to strengthen Jewish settlement in Jerusalem," the judges stated. In the transcript of the court`s hearings the Palestinian inhabitants are termed nokhrim – gentiles – and oynim – meaning "hostile."
In 2011, a new body appeared that sought to take control of the hekdesh and the property: the Georgian Community Committee. The committee demanded the house, claiming that it would implement the deed of the hekdesh better by building a synagogue in the neighborhood, and as such they should replace Settlers of Zion as trustees. Once again, no one bothered to search for the true heirs.
The court accepted the request and named new trustees. Mamo appealed the decision, but without success. Oddly, during the legal battle between Settlers of Zion and the Georgian committee, the truth came momentarily to light. According to the transcript of a 2016 meeting convened by the rabbinical court, David Bender, a hekdesh trustee for the Georgian community, said, "I was told that it belonged to Prof. Yair something… Prof. Michael Ben-Yair. We`re working to locate him." Fourteen years after the inheritance was taken from the legal heir, his name came up in the court`s deliberations, but the transcript shows no evidence that the comment drew any response.
It wasn`t until 2019 that Ben-Yair discovered, quite by chance, that the house he was born in had for years been in the possession of organizations that aimed to Judaize the neighborhood. He contacted attorneys Sfard and Alon Sapir, who requested an urgent meeting with Sigal
Yakobi, who was by then the custodian general. It was in that meeting that Ben-Yair and the others discovered that they were dealing with a family hekdesh.
In the wake of the meeting, Ben-Yair and his sister, Na`ama Bartal, filed a request to peruse the hekdesh file. "The court said, `Who are you people, this is closed-door, on what basis do you belong here?`" Sfard recalls. "I said, `What? I represent the grandson and granddaughter of the owner of the house.` So they said, `Prove that your client is the grandson.` Then a crazy trajectory began of requests to the Interior Ministry and to the magistrate`s court to issue a declaratory judgment that he was the grandson."
Sfard and Sapir, aided by the NGO Peace Now, embarked on a genealogical investigation of Sarah Jannah`s family. They then submitted an array of evidence to the court in order to obtain a judgment of family proximity. For example, they showed that the names of the family members appear together in two population censuses conducted by the British in 1937 (without Ben-Yair, who was born in 1942) and in 1947 (together with Ben-Yair). Sarah Jannah`s name and the name of Ben-Yair and Bartal`s mother also appear together in the first electoral roll of the State of Israel, and their ID numbers are consecutive, as they all received ID cards on the same day.
After receiving the judgment confirming that their grandmother was indeed their grandmother, Ben-Yair and Bartal were compelled to go on waging a battle in the beit din (the rabbinical court) to take possession of the inheritance. In 2022, they filed a special request to open the deliberations to media coverage. When the request was rejected, they appealed to the Supreme Court, which, exceptionally, opened the rabbinical court hearings to the media. It was a rare event in the annals of rabbinical courts, where almost 100 percent of the deliberations are held in camera. Indeed, Sfard maintains, the closed-door policy is one of the problems connected to the issue of expropriation of Palestinian homes, because it makes the method possible.
Ben-Yair and Bartal now had to cope with a new argument. Attorney Shlomo Toussia-Cohen, representing the Georgian community, said that Ben-Yair`s public statement that he favored allowing the Palestinians to go on living in the house disqualified him from receiving his property.
"I understand, from the documents that were submitted, that the applicant is not pleased with the attempts to bring about the eviction of the invaders [the Palestinians] and to renew Jewish settlement at the site," Toussia-Cohen said. "He cannot say that he forgoes the hekdesh. To place a person who thinks that it was proper to transfer the property to people who invaded, is in my view an inappropriate appointment." To which Sfard retorted: "That is incredible impertinence. The trustees failed to uphold the first imperative, namely to locate the heirs. And now you represent the good of the nation?"
Attorney Rachel Wazner, the state`s representative in the hearing – she was at the time the rabbinical court`s acting director of religious properties earmarked for charitable purposes – did not reject Toussia-Cohen`s case. In her view, it was necessary to examine whether Ben-Yair had effectively forfeited the property and what would happen should he change his mind in the future. "There are complex legal questions here," she said.
Speaking recently with Haaretz, Rachel Shakarji, the rabbinical court`s supervisor of religious properties earmarked for charitable purposes, stated, "If there is a person whose worldview is that the hekdesh belongs to Arabs, I as the regulator can tell him `No` – that is an approach which it is reasonable to express."
Nevertheless, according to Ben-Yair and Sfard, Shakarji was the first person in the system to grasp that something was not right. She ordered the accounts of the hekdesh to be frozen and afterward supported the replacement of the trustees.
Last month, the legal saga reached its conclusion, in the form of an agreement between the Georgian Community Committee and Ben-Yair and Bartal. By its terms, the Georgians will withdraw from the hekdesh and allow Ben-Yair and Bartal to be appointed trustees; they, for their part, agreed not to file suit for the funds that were collected over the years from the tenants.
"The court made a mistaken decision, but not out of malice," Shakarji summed up. "People came to the court whom it had no reason not to trust, and the court appointed them. The moment Sfard approached the court, we froze the revenues. I am proud of what the court did when it saw where truth and justice lie – it did not do political accounting. I am proud of the decision to correct the error. `In the place where penitents stand… [referring to a Talmudic passage about newly religious Jews, which continues, "even the full-fledged righteous do not stand"]. In the end we gave good service to a citizen who had been wronged."
Two weeks ago, the first meeting was held of the trustees of the hekdesh, all of whom are descendants of Sarah Jannah. They made a number of preliminary decisions. According to the deed, they cannot sell the property, but Ben-Yair wants to draw up a legal document stating that a protected-tenants agreement will be signed with the Amira family – the Palestinians who have been living in the house since the 1960s – in return for rent of 10 percent of the market price.
In a situation in which almost all of that family`s neighbors are contending with eviction demands from settler organizations, and the District Planning and Building Commission is promoting a plan for the expulsion of the Palestinians and the reestablishment of the Jewish neighborhood of Nahalat Shimon, that would be a symbolic but important victory both for the neighborhood`s Palestinian residents and for the Israeli activists who have been accompanying them for more than 15 years.
"Before our eyes we saw the scale to which the rabbinical courts are cooperating with and committed to the ethnic cleansing of East Jerusalem," Sfard says. "The secular, state system did nothing, which is proof that this is what it wants. After we discovered the depth of the failure, I wrote a long and detailed letter of complaint to a number of bodies requesting that they investigate the matter. I still haven`t received a reply.
"That only reinforces my feeling that what happened wasn`t an accident. The whole system is calibrated to behave like that. The `accident` is that this time someone came forward who couldn`t be ignored, who had proof, backed up with research, with the resources of Peace Now and legal representation. The accident is that we brought the truth to light."
"I want to tone things down a little," says a cautious Ben-Yair. "In my case, it was revealed that certain right-wing nonprofit groups are acting to discover opportunities to take control of assets to which they have no connection. They are operating dishonestly, are not fulfilling their obligation to find the people who are connected to the properties – and all this took place in the rabbinical court, which did not fulfill its obligation to demand accountability."
In the same breath, Ben-Yair speaks in much broader terms as well. “I believe that the only way to achieve security for Jews in Israel is through the establishment of a Palestinian state alongside Israel. The present government is pushing precisely in the opposite direction, and things will blow up again, because that conflicts with reality. In reality, there are 7.5 million Jews and 7.5 million Palestinians, and we need to divide the country between them.”
Justice Ministry: Claims of favoritism unfounded
The Justice Ministry made the following statement to Haaretz: "Already in 2003, the custodian general expressed its professional opinion before the court, according to which this was a family hekdesh. The property was released in 2006 to the trustees of the hekdesh in accordance with [their] appointment by the [rabbinical] court. The custodian general acted lawfully, with the release being made to the trustees of the hekdesh as is customary, and with that the handling [of the matter] by the custodian general concluded. In the light of this, the allegation of collaboration with specific nonprofit organizations is utterly unfounded."
Neither the Settlers of Zion organization nor attorney Toussia-Cohen responded to requests for comment.
Original article
Photo: View of Sheikh Jarrah neighborhood, occupied Jerusalem. Source: Ahmad Gharabli/APF.
