It is now 75 years since the Second World War ended and nearly 80 since the Nazi period began. Yet year after year, justice is done when works of art seized from Jews who were killed, driven from their homes, or forced to sell their possessions at small fractions of their value are restored to their real owners — or to the descendants of those owners.
The principle is not controversial: Title to the property in question was not legally obtained, and just compensation was not paid. Governments and courts in the United States and Europe year after year decide these cases, giving title to the original owner.
This principle is simple, and widely acknowledged, but seems to be willfully ignored when it comes to the eviction cases that are now before Israel’s Supreme Court. These cases have been cited repeatedly as a key instigator for the violence right now in Jerusalem, which has quickly expanded beyond the holy city to include Hamas rockets raining down over Tel Aviv and elsewhere — and though they’ve mostly been intercepted, there have been severe injuries and deaths.
These cases involve the neighborhood known as Sheik Jarrah or Shimon Ha-Tzaddik in Jerusalem. Land in this neighborhood was purchased in 1874, in Ottoman-ruled Jerusalem, by groups of Jews. Jews lived there until Israel’s war of independence began in 1947. In December 1947, the neighborhood came under attack. As an account written in 2005 noted,
Jews were driven out by Jordan early in the 1948 war, becoming Jewish refugees before there were Arab refugees. The Arab “squatters” who dispossessed the Jews and usurped their homes in 1948 have continued to live in them even though Israel took control of the eastern part of Jerusalem in 1967. . . . Residents fled or were compelled by Arab and British forces to evacuate all three Jewish neighborhoods early in the war. . . . All but one of the Jewish families fled Shimon haTsadiq on the night of 29 December 1947. The remaining family fled on 7 or 8 January 1948…. Shimon haTsadiq became the first neighborhood in the country from which the population was driven out and did not return after the War. Jews had likewise fled south Tel Aviv in December 1947, but returned after the War, whereas Shimon haTsadiq remained under Arab control . . .
Now, some of those Arab families have been living in the neighborhood for over 70 years — but without title to the land or apartments. Jordan, which ruled East Jerusalem from 1948 to 1967, did give out titles to many properties — but not these. The legal owners are now seeking to assert their rights to this property.
The Kohelet Policy Forum in Israel explained:
The current dispute in Sheikh Jarrah involves several properties with tenants whose leases have expired, and in a few cases squatters with no tenancy rights at all, against owner-landlords who have successfully won court orders evicting the squatters and overstaying tenants. The litigation has taken several years, and the owners have won at every step. . . . The tenants in these disputes acquired their leasehold rights through a chain from the Jordanian Custodian of Enemy Property in the 1950’s. Their rights as leaseholders (not owners) were reaffirmed in several court rulings culminating in 1982, when Israel’s civil courts issued rulings adopting settlement agreements between the leaseholders’ predecessors in title and the owners. The rulings and settlement agreements established that the tenants had “protected leaseholds” under Israeli law (a status superior to ordinary leaseholds under Israeli, Jordanian and British law) but that the owners still had good title ownership. The tenants enjoyed and continue to enjoy the benefits of the protected tenancies until today; this is why their leaseholds continued uninterrupted for more than half a century, until the recent expiration of the leases (in some cases due to serious breaches of the terms of the lease, in others due to the natural expiration of the lease rights). The squatters, of course, possess no legal rights at all.
It does seem, here as so often, that no good deed goes unpunished. These Arab families jumped in when Jews were forcibly driven from their homes in 1948. When Israel returned in 1967, these families might have expected to be evicted — but were not. Those to whom Jordan had given titles found that Israel would respect those titles. Those who had no title found that Israel respected their leases, so long as they themselves abided by the terms of the leases.
What then happens when some of the leases are up, some of the tenants refuse to pay rent, or some of the properties are occupied not by tenants but by squatters? That is what’s before Israel’s Supreme Court, in a case involving several Palestinian families who could ultimately be evicted.
Note again this line in the Kohelet analysis: “The litigation has taken several years, and the owners have won at every step.” Israel’s courts, sometimes viewed as too sympathetic to — or indeed part of — the Israeli “Left,” have consistently applied standard property law, as would courts in any Western country, and consistently found that the rights of ownership have not been obliterated just because people moved into these homes when the Jews who lived in them were driven out.
Now let’s return to the paintings forcibly seized from Jews by the Nazis. There is widespread sympathy for the owners of those paintings, and it is visible in newspaper accounts and in court decisions and international conventions. Why is there so little sympathy for those who own the properties in contention in Jerusalem? Why the bias in most accounts of these eviction proceedings? Even media generally sympathetic to Israel have produced tendentious reporting (see this analysis of Fox News’ reporting).
Good questions. Is the criticism of Israel here explained by the bitter old conclusion that the world likes dead Jews (and their paintings) more than living Jews who are fighting for their rights? Is it the context of Arab complaints about the “Judaization of Jerusalem,” as if that city were somehow naturally an Arab capital where all Jewish presence is alien? Is it the Palestinian propaganda, which makes cases like this part of the battle to protect the Al-Aqsa mosque from imagined Israeli depredations?
Here’s a theory: Israel’s critics here don’t care about law and rights. Yesterday, before his meeting with Secretary of State Antony Blinken, the Jordanian foreign minister spoke of “provocative measures against . . . the peoples of Sheikh Jarrah” to describe court cases in which ownership rights are being asserted. The theory seems to be that the Jews were downtrodden by the Nazis, so the Jews can recover their stolen paintings — but the Palestinians are downtrodden by the Israelis, so the stolen properties cannot be recovered. In other words: forget rights, forget courts.
Blinken, by the way, commended Israel for postponing those court decisions. But they will come, soon enough, and that will be an interesting test for the Biden administration and many other governments. Will they uphold the rule of law and say Israel has every right to enforce a ruling for the owners (if that is the court’s decision)? Or does the rule of law apply only in Europe, when it comes to old Nazi cases where there’s no political risk in siding with the Jews?