Dispossession under the Supreme Court's Watchful Eye – On Beit Hadassah in Hebron: HCJ 175/81 Al Natsheh v. Minister of Defense (Judgment of May 19, 1981); HCJ 72/86 Zalum v. Military Commander (Judgment of March 9, 1987); HCJ 7007/03 Kawasmi v. Military Commander (Judgment of April 19, 2005)

Dispossession can be done in many different ways. It is often no simple task to uncover these different methods, which are sometimes hidden between the lines of military orders or regulations and legal casuistry. Sometimes, however, dispossession is so obvious that there is no need to uncover it. On even rarer occasions, the entire process is “attended” by the court, which has the power to either prevent or enable it. The Beit Hadassah settlement in Hebron is one example of how the High Court of Justice (HCJ) enlisted itself to enable, facilitate and legitimize the process of dispossession.

Chapter One: A Stamp of Approval for the Settlement

Beit Hadassah (al-Dabuyeh) was built at the end of the 19th century by Jews from Hebron and served as a hospital in the early 20th century. In 1936, when the last of the Jews were evacuated from the city after a 1929 pogrom, the building served first as a dairy factory and later, until the mid-1970s, as an UNWRA school. In 1979, a group of Jewish women from Kiryat Arba, their children in tow, broke into the building, which was partly abandoned at that time. The settlers maintained that they had purchased the deed to the building from the Jews who owned Beit Hadassah prior to 1948 (as far as is known, this claim was never verified). The government of Israel refused to evacuate the women, but initially prevented other settlers from joining them. However, after a yeshiva student was killed in the Hebron market by Palestinians in January of 1980, the government officially approved residence in Beit Hadassah, effectively establishing the first Jewish settlement in the old city of Hebron.

In 1981, Hebron residents petitioned the HCJ to order the government to evacuate the settlers from Beit Hadassah. One of the petitioners operated a store in the building. The petitioners, represented by their lawyer, Felicia Langer, argued that the Beit Hadassah settlers were trespassing on the property. They also accused the settlers of harassing Palestinian residents in order to push them out of other properties in the city.

The court's judgment (written by Justice Miriam Ben-Porat, with the consent of Justices Aharon Barak and Dov Levine), first addressed the acts of harassment residents of Hebron had suffered at the hands of the settlers. However, after counsel for the respondents, Adv. Dorit Beinisch, appeased the court by saying that disturbances would be handled appropriately from that point on, the justices did not find cause to issue an order nisi in the matter.

The HCJ then proceeded to the charge that the Beit Hadassah settlers had unlawfully invaded the building, and found that it was groundless. Firstly, the court determined, the petitioners themselves did not deny that Beit Hadassah was Jewish-owned property. Secondly, aside from one petitioner, who ran a shop in the building and was entitled to the status of a protected tenant, none of the other petitioners had any title to the property.

This is the place to point out that properties owned by Jews before 1948, like Beit Hadassah, were transferred, during Jordanian rule over the West Bank, to the Jordanian Custodian of Enemy Property according to the British Mandate’s Trading with the Enemy Ordinance, which remained in force after the British Mandate ended. After 1967, under the Israeli occupation, these properties were transferred, like others considered government property, to the administration of the Custodian of Government and Abandoned Property in the West Bank. While in the first decades after 1967, Israel permitted the transfer of these properties to their previous Jewish owners, that policy was reversed in the mid-1990s; since then, as a rule, such transfers cannot be made. In two judgments issued after the policy change, the HCJ ruled that in under the Trading with the Enemy Ordinance, the transfer of the property to the Jordanian Custodian effectively revoked the property rights of whoever the owners were prior to the 1948 war. All these owners could do was hope that the properties would be returned to them in a future peace agreement that would resolve the status of the land and property. Furthermore, the HCJ determined that the transfer of properties from the Israeli Custodian of Government Property to the previous Jewish owners or those who had replaced them, did not conform to the provisions of the law of occupation regarding administering public property in the occupied territory.[1]

As is known, the very presence of the settlers in the occupied territory violates international law.[2] Furthermore, over the years, Palestinians moved into many of the properties that had been transferred to the Jordanian custodian and even if they did not gain ownership of them, their residency in these properties over many years and their administration or cultivation of them, grants them rights (for instance, as protected tenants) and prevents their evacuation.[3]

And so, all the aforesaid casts serious doubt about the legality of the transfer of ownership of Beit Hadassah to the settlers. And yet the court did not even trouble itself over the matter; instead, it determined that “there is reason to assume, that the presence of the occupants in the building was brought to the attention of the Custodian of Abandoned Property, who, nevertheless, chose to remain silent”.[4]

From here, the HCJ proceeded to the third reason (and the weightiest in its opinion) for its finding that the settlers were not trespassers on the property.

Furthermore, it should be noted that the respondents attached to their notice a resolution of the government of Israel dated March 23, 1980, which adopted the proposal of the Minister of Construction and Housing concerning the 'Hadassah' building (R/3) which stated (below) that … “(a) Action should be taken to develop the character of the Jewish courtyard in the Jewish quarter in Hebron, for its revival. The planning will be made in a manner which will not violate the rights of the owners or their successors and will not jeopardize the division into plots. The planning will maintain the spirit of its style and character. (b) A third floor will be added to Beit Hadassah. In this context an extension of the Kiryat Arba Hesder Yeshiva will be opened in Hebron and a field school will be opened in Beit Hadassah. Staff will be allowed to live in the Yeshiva and there will be a hostel in Beit Hadassah.

Accordingly, the occupancy of the 'Hadassah' building by Jews is done with the full consent of the government and with its approval. Based on all the above reasons, we have decided, at the time, to deny the petition.[5]

Thus, the fact that the Custodian of Abandoned Property – an organ of the Israeli regime in the OPT, chose not to intervene, and the fact that the government, which was overtly promoting settlement in the OPT at the time, was aware of the settlement in Beit Hadassah, and agreed to it, were seen by the HCJ as excellent reasons to dismiss the petition.

Chapter Two: Searches and Harassment

Five years went by and once again the Palestinian residents of Hebron, represented by Adv. Langer, came calling on the HCJ. The petitioners were in possession of stores on the lowest level of the Beit Hadassah building. In the years that had passed since the previous judgment, another story had been built, in accordance with the government decision, and Jewish families started moving in. At the time of the hearing of the petition, about 15 settler families were already living there. In January 1986, the military put up a wire fence along the sidewalk adjacent to the petitioners’ stores and began searching people wishing to enter the stores and their belongings. The petitioners asked the court to order the respondents to remove the fence and the soldiers conducting the searches. They charged that they had been:

[R]equested to vacate their stores in consideration for compensation, and that following their refusal to do so, the wire fence was erected and provocative searches were conducted, the sole purpose of which was to harm both customers and the petitioners, thus causing the petitioners' departure to the full satisfaction of the Jewish settlers in Beit Hadassah.[6]

Once again, Justices Barak and Ben-Porat presided along with Justice Elon. This time, Justice Barak wrote the ruling, quoting the reasoning given by the state for its decision to apply the impugned measures:

[I]n view of the large number of individuals expected to reside in Beit Hadassah, and the symbolic value which has been attached to Beit Hadassah as representing the renewed Jewish settlement in Hebron and the bloody history of this process – the respondents have come to the conclusion that it was necessary to take measures which would ensure that no attempt would be made to violently attack residents of Beit Hadassah. The respondents are of the opinion, that the existence of stores, which passers-by freely go in and out of, carrying with them articles and packages, poses an actual threat to the lives and safety of the Beit Hadassah residents. This situation raises concern that an attempt will be made – and not necessarily with the petitioners’ cooperation or knowledge – to bring explosives into the stores in an attempt to bring the building down together with its residents. Truly, said security problem is not new, but it has recently received new dimensions, as a result of which stricter measures than those taken in the past were required: the building was expanded, its symbolism is conspicuous, and it is expected to be occupied by many more residents than in the past.[7]

How did the HCJ reach the conclusion that the military commander’s sole concern was security? Here, the court put stock into the suggestions made by counsel for the state that the state would look for alternative locations in Hebron, in which the petitioners could operate their stores; compensate them for the damage caused as a result of loss of customers and convert the stores into storage rooms under the petitioners' control. Though some might see these suggestions as the very proof of the intention to push the Palestinian residents out of Beit Hadassah, Justice Barak determined that “There is no basis for the argument that the purpose of respondents' actions was to ‘Judaize’ the stores”.[8]

From this point, the HCJ moved on to consider the question of whether the measures taken by the military were legal. Justice Barak asserted that the military commander’s power to protect the lives of residents of the OPT “applies to any person who is present in the Area, whether a permanent resident of the Area or a new resident thereof”.[9] Since according to the HCJ, the measures that were employed properly balanced security needs with the welfare of the civilian population – there was no cause for the court to intervene.

At the end of the judgment, Barak wrote:

It seems to me that the measures which were taken by the respondents were lawful. Certainly, the various factors which create the proper balance may change, and it may be fairly assumed that the respondents would examine their position from time to time, with the willingness to take measures which would make it easier for the petitioners, without jeopardizing security needs.[10]

Chapter Three: Mission Accomplished

The years went by and the respondents revisited their position.

During the second intifada, as part of reinforcing the policy of separation in the old city of Hebron, the military decided to shut down hundreds of Palestinian-owned stores close to the settlements in the heart of the city. This policy, along with many other measures, turned large parts of Hebron into a ghost town.[11] The stores located in the bottom of Beit Hadassah, as well as stores nearby, were closed by military order.

A new petition was filed to the HCJ against this order, this time by the Association for Civil Rights in Israel. In response to the petition, the military commander argued that the closure of the store was necessary to protect the Jewish residents of Hebron in general and of Beit Hadassah in particular. By then, about 30 families were living in the compound, which also housed a daycare and a museum that according to the respondents, drew many visitors each day. Following the petition, the military decided to open some of the stores that had been closed, but insisted on the closure of the ones in the Beit Hadassah compound. Since that was the case, the petitioners insisted that the petition be heard.

The HCJ (in a unanimous opinion written by Justice Dorit Beinisch, with the consent of Justices Rivlin and Levy), decided to dismiss the petition. In the ruling, the court quoted the commander of the Judea and Samaria Division, to the effect that:

According to his professional assessment, there is a real risk that these shops will be used to house explosives, for the purpose of harming the Israeli residents living in the compound. He claims that opening the shops will allow terrorist organizations to secretly insert explosives into the shops, in amounts capable of collapsing the foundations of the building and harming the residents living within.[12]

Thus, the security argument was the same one made in Zalum; however, while in Zalum this argument justified searching persons entering the compound and their belongings, in Kawasmi the very same argument justified shutting down the stores altogether.

To sum up: According to the laws of occupation, including the laws that apply to property owned by Jews on the eve of the 1948 war, Beit Hadassah should have been transferred to the Custodian of Abandoned Property after 1967. After the settlement was established in that space, Palestinian residents of Hebron petitioned the HCJ. Since the Custodian of Abandoned Property decided not to intervene, and since the settlement had government approval – the HCJ gave it its own seal of approval. Later, additional sanctions imposed by the military severely burdened the few Palestinian merchants operating stores in the building. The merchants petitioned the HCJ and argued that the military’s measures would result in the closure and removal of the stores. After the army argued that the new measures were necessary because of the increase in the number of Jewish residents in Beit Hadassah, the court approved the sanctions. In the early 2000’s, in the wake of the second intifada, the army decided to close the stores in the compound altogether. The HCJ approved this, too.

And so, step-by-step, Adv. Langer’s fears became reality. At the time of writing, despite the major improvement in the security situation in Hebron, merchants have not been allowed to reopen their stores. On the other hand, the Beit Hadassah settlement has blossomed and flourished. In 1990, after having represented Palestinians in the occupied territories for many years, Felicia Langer closed her office and moved to Germany. In an interview with the Washington Post that year, she charged that it was impossible to obtain justice for Palestinians in Israeli courts.[13]

Adv. Yotam Ben-Hillel

The author is a lawyer and a legal researcher on human rights in the Occupied Palestinian Territories. Formerly on staff at HaMoked: Center for the Defence of the Individual.