Thursday, December 04, 2008

The House of Contention in Hebron


(Image Source: Wikipedia)

UPDATE - LATEST REPORTS: Masked Jewish youths set fire to a Palestinian house in Hebron, as "revenge" for the evacuation. The total number of the residents evacuated from the House of Contention was 250; they were dragged out one-by-one, and police used stun grenades and tear gas to overwhelm the occupants. Protesters inside the house resisted using various means; some police officers were pelted with rocks, eggs, and, in one case, acid (leading to the injury of one officer). Reports of Jews (civilians) shooting at Palestinians in Hebron; also of Palestinian militants shooting at Israeli security forces (YNET). 

In the last two weeks, there has been a great deal of coverage about the "House of Contention" (בית המריבה), as most of the media call it, or the "House of Peace" (בית השלום) as the settlers and their supporters have dubbed it. Earlier today, to everyone's surprise, Israeli police forces forcibly removed the occupants of the building (see coverage here). There were 25 wounded, including one police officer, in the confrontation that ensued between the occupants and the security forces. Following the forced removal of the people inside the house, the entire area of Hebron was declared a closed military zone, to prevent right-wing protesters from flocking to the site. Meanwhile, demonstrators blocked the entry roads to Jerusalem.

The debate around the House of Contention/Peace has been understandably polarized. The settlers and right-wing have accused the media as well as the state of leading a campaign of persecution against them. The judicial sphere and politicians on the center, center-left and left have expressed frustration about the seeming state of anarchy reigning in Hebron. All this has been compounded by a number of riots staged by Jewish youths in Hebron, usually targeting Arab stores and houses, as well as a Muslim cemetery. The settlers and others on the right-wing have lashed out at what they perceive as a lack of concern for their rights. They argue, for example, that human rights organizations would rally to protect Palestinians from being evicted from their homes, and that the law is being instrumentalized in order to punish the settlers and "de-Judaize" Hebron. 

The polarized nature of the debate has obscured the legal background to the decision to evacuate the house. Instead, the whole affair has been rendered as Gush Katif Part III (Part II beingthe evacuation of Amona). But the legal issues in this particular case are quite different from either Gush Katif or Amona. The House of Contention/Peace has become a symbol for both the left and the right. I want to de-symbolize it, by stripping away the significations that have coalesced around it, and returning to a legal, procedural rather than substantive discussion of the issues. 

Here is an attempt to sort through some of those legal matters. The structure in question is close to the Cave of the Patriarchs in Hebron, and is generally known as the "Brown House." On March 19, 2007, a group of settlers came to the house and occupied (or took up residence in) it. They claimed that they had purchased the house from the Palestinian owner, in a videotaped cash transaction. The owner or the person who sold it, however, appealed to the police, arguing that the house was still in his possession and that the occupants had "invaded" (this is the technical legal term) it by force.  

On November 16, 2008, Israel's High Court issued one decision on the matter of the House of Contention. The case before it, however, was not actually about the ownership of the building. Rather, it concerned the question of whether it was legal for the State of Israel to forcibly remove the current occupants of the structure. The court ruled that the state was allowed to remove the current residents. By law, if someone lives in a house more than 30 days unchallenged, they have certain rights to the residence and cannot be easily removed, but in this case, the owner/seller appealed to the police on the same day of entry and declared the entry unlawful. The court did NOT rule on the question of ownership. It simply said that even with the ownership under debate, the structure could be evacuated, and returned to the person who owned it before the entry of the residents. Here is the relevant part of the court's verdict; Ayala Procaccia wrote the opinion. A full translation will follow in the future.

. 43        בעיקרו של דבר, הראיות המינהליות שבידי המדינה נותנות בידיה עילה לעשיית שימוש בכוח הנתון על-פי צו סילוק פולשים לסייע למחזיק כדין להחזיר לעצמו את החזקה שנתפסה שלא כדין על-ידי העותרות. די בראיות מינהליות אלה כדי לבסס את התנאים הנדרשים לצורך עשיית שימוש באמצעי של סילוק "פולש טרי", הניתן למחזיק המנושל על-פי צו סילוק פולשים. בירור שאלת "החזקה כדין" של המחזיק המנושל לצורך עשיית דין עצמית מחייב בדיקה סבירה ברמת הוכחה מינהלית בלבד, כנדרש לצורך הגנה אפקטיבית כנגד פלישה (מיגל דויטש קנין א 420 (1997); ויסמן בספרו, שם, עמ' 113-114). בשימוש בכוח לסלק פולש טרי ניתן ביטוי לאינטרס הציבורי בהגנה על החזקה, ומודגש הצורך בשמירה על הסטטוס-קוו בשטח לבל יותר מצב של כל דאלים גבר. בסילוק "פלישה טרייה" מסייעת המשטרה למחזיק כדין לממש את הגנתו מפני פולש (ענין סוכובולסקי, שם). בכך מקיימת המשטרה את חובתה להגן על שלום הציבור, ולמנוע שימוש בכוח כאמצעי לאכוף טענות בדבר זכויות (בג"צ 418/78 אבנר לוי ורפאל לוי חברה לבנין ולהשקעות בע"מ נ' שר הפנים והמשטרה, פד"י לג(2) 108 (1979)). בנסיבות הענין, היה על העותרות לפנות לערכאה שיפוטית לצורך הוכחת זכויותיהן למבנה, ולהימנע מעשיית דין עצמית בדרך של נטילה חד-צדדית של החזקה בניגוד להסכמת המחזיק. שיקולי סדר ציבורי עומדים מאחורי הכלל לפיו מחלוקות בענין זכויות קנין מקומן להתברר בערכאות שיפוט, ולא בכוח הזרוע בין הצדדים היריבים. מי שמשנה מצב קיים שלא בהסכמת המחזיק נתפס כמפר סדר, ולכן ראוי להחזיר סדר על כנו על-ידי הוצאת הפולש מן הנכס, והפנייתו לבית המשפט לשם בירור זכויותיו (ויסמן בספרו, שם, עמ' 113-114). חובתה של המשטרה היא לסייע למחזיק אשר נושל מחזקתו, כאשר הפלישה היא טרייה, וזה המצב בענייננו (פרשת טל השקעות ובנין, שם, השופטת נאור).

 

44.         בירור הזכויות המהותיות בין הצדדים אכן מתקיים עתה בערכאות המוסמכות. בירור זה אינו מייתר את הצורך להחזיר את המצב בשטח לקדמותו עד להכרעה שיפוטית בשאלת הזכויות לנכס על מלוא היקפן ומורכבותן. אין צריך לומר, כי בעתיד, על הצדדים יהיה לפעול על-פי ההכרעה המשפטית הפסוקה החלוטה שתינתן במחלוקת ביניהם. למותר לומר, כי אין אנו מביעים כל עמדה במחלוקת המהותית בדבר זכויות הצדדים בעקבות עיסקת המכר שנקשרה ביניהם.

21 comments:

criticer #1 said...

A doubt regarding the ownership of a house should not justify the forceful evacuation and wounding of 25 individuals.

Amos said...

Criticer raises an important point. Why didn't the state wait for the ownership dispute to be settled before a forceful evacuation?

I heard one spokesman for the Jewish community in Hebron say on Israeli radio two days ago that the legal decision does not obligate the state to evacuate the house. It simply permits the evacuation. I'm not 100% sure that this interpretation is correct though, and this is part of the reason I wanted to examine the legal decision more carefully.

I should also note that the state had tried for several weeks to get the occupants to leave the house on their own volition. Indeed, the legal decision calls for this as well. The standoff ensued when the residents of the house refused to do so, and began taking measures to barricade the house and to solicit support from people outside the area to help occupy and defend it against the police.

I think the state saw this as a test case for its authority in the territories. Many of the right-wing activists were very blatant about their refusal to abide by the law. At the same time, they were intermittently staging small riots against Israeli security forces in the area as well as against the Arab residents.

Thus, the state may have been motivated by extra-judicial concerns about the tense atmosphere in Hebron, and the active role that the radical wing of the Jewish community there was taking to antagonize the security forces and harass Palestinian civilians in the area.

Amos said...

After watching the footage of the riots in Hebron, this post seems somewhat irrelevant. Obviously, the evacuation of the protesters by the security forces has had dramatic consequences.

I know this is a naive question, but why are the settlers calling the officers sent to evacuate them "murderers"? And why are they rioting against Palestinians when Israel evacuated them?

yaman said...

Amos, I wonder if you plan to post some more commentary about this with regards to the settler movement in the West Bank at large. Do you see similar evacuations happening in complete settlements, or do you see similar resistance as the likely outcome?

Nobody said...

Some section of the settlers is completely out of control since a while ago. In fact, it looks like a sort of a new generation who were born there. We need urgently to reach an intermediary agreement with Abbas about borders to finish the fence and start dragging all of them out of there. Such an agreement should not be final and can bypass Jerusalem and refugees issues, but without it I just don't see how we can even start pulling them out. The government will now have to be sure that it has something in its hands before it dares to risk a civil war with these people in the West Bank and maybe inside Israel proper.

Noah K said...

I found this comment by Barak interesting: “what was tested today was the ability of the state to enforce its laws and its essence upon its citizens.” Not sure what the Hebrew would be for "essence," but the sentiment speaks to the super-judicial (if not extra-judicial) concerns of the state here.

As for procedure, don't Israeli citizens need to get a permit to take up residence in an area governed by martial law? I thought I saw the issue of "permit" bandied about somewhere.

As far as I can see, there isn't a single, unified authority in the territories, unless that's "martial law," which is what? A kind of general last word reserved for the army on any issue? I'm not sure a procedural/legal analysis will get to the heart of what this is about -- particularly with so much symbolic violence perpetrated.

Ariel said...

I agree with Nobody that these lunatics just have to go. Call it extra-judicial or whatever--this is a political issue in any case. I'm all for hewing to procedural norms as far as possible, but we should be clear that substance, not procedure, is the issue here. As Noah points out, the whole legal status of the territories is unclear. And as Nobody says, what the government really needs is the political backing of one part of its citizenry against another part.

Nobody said...

@Ariel

The government should first to reach some agreement with the Palis about the borders. We need first to fence off ourselves from the West Bank completely. Such a pullout cannot be done in stages or incrementally because the very moment we make a move these people will immediately try to plunge the whole place into chaos by dispatching a whole dozen of Barukh Goldsteins to Palestinian cities. We should ensure before starting with this project that once we move them out they will be completely locked out with no way of going back to the West Bank.

And the Palestinians will have to compromise on the borders. We are no longer capable of evacuating major settlement blocks. Though from our experience with the Palis, you can be sure that these assholes will be dragging their feet or coming up with all sorts of unreasonable demands until it becomes too late and impossible.

v said...

"...the whole legal status of the territories is unclear." Ariel
______________________

I have studied this for years, what is unclear about the territories? The ruling of International Law is clear and has been reinforced by the World Court; the UN has ruled numerous times on the issue and does not have any ambiguous statements. Isn't Israel a signer to International Law and all of the conventions regarding "Occupied Territories?" What is unclear is your statement.

Ariel said...

what is unclear about the territories? The ruling of International Law is clear and has been reinforced by the World Court; the UN has ruled numerous times on the issue and does not have any ambiguous statements

When the UN and World Court become sovereign bodies with the capacity to enforce their decisions in places such as the Occupied Territories, than their rulings will constitute the unambiguous legal status of such places. Until that time, while their rulings are not entirely immaterial, they are far from settling the matter. Considerably more relevant is whatever body of law is actually being applied in the area at the moment. As Noah suggested, that part is ambiguous. Is it martial law or something else?

Amos said...

Anyone know more about this?

"Niggers don't expel Jews! This isn't what we brought you to Israel for!" are just some of the degrading slurs Border Guard officers reported hearing from masked settlers.

Ariel said...

The ironic thing, of course, is that so many of the radical settlers probably just came off the plain out of JFK a short while ago, and yet these douche bags have the temerity to tell the Ethiopians why "we brought you to Israel"!

Amos said...

While I share your anger about these incidents, Ariel, I think most of the young people involved in the riots were born in the Land of Israel.

Nobody said...

Amos said...

Anyone know more about this?

"Niggers don't expel Jews! This isn't what we brought you to Israel for!" are just some of the degrading slurs Border Guard officers reported hearing from masked settlers.


I guess they were not cursing them in English. So it was probably "kushim". Not that it's so much better, but I think "kushi" does not have the same connotations in Hebrew as "nigger" in English. Their point was not so much that they are niggers, but that they are Africans, means not Jews.

Ariel said...

They may have been saying "kushon" or "kushonim," which is more clearly derogatory than "kushi" or "kushim." I agree neither carries quite the connotations of "nigger(s)."

Does anyone have an opinion on the masks? As a matter of practicality, I of course understand hiding one's identity when insulting/assaulting the police/army, but you have to admit the image of young Jews in black ski masks is pretty striking. I was surprised the BBC website didn't highlight these images more.

Nobody said...

@Ariel

"This isn't what we brought you to Israel for!" basically means that we brought you here as Jews and now you are uprooting Jews from Eretz Israel. That's the connotation. There is no need to try to read into this more than there is there.

And in general, I don't understand what is all commotion about. We are a bit unique among many nations of the world because we don't have our extremists spread evenly across the population. Instead a special sanctuary was created for these people, where they have been sitting for decades brainwashing each other into insanity. In some places the concentration of lunacy per square meter has reached such proportions that under its impact whole settlements have been transformed into a kind of Safaris of biblical romanticism and Jewish extremism.

Apart from these peculiarities, nothing out of ordinary is happening. We have approximately 5-6 years to move in to dismantle this zoo we have created there. If we don't do it on time, then we will have to annex the West Bank. And clearly these people are so extreme, that there is no place there for two peoples. It's either them, or Arabs. It's impossible to accommodate both in such a small place.

Nobody said...

And don't think that evacuating these people into Israel proper is a kind of solution or something. They will just get more extreme. They may start messing with our Arabs, or with the leftists. They may join forces with a section of the ultra orthodox community that is seeking to establish a Jewish Sharia state here. These are a kind of people that you prefer to live somewhere else.

Ariel said...

Nobody,
I agree. If I had the authority to line them up against a wall there would be very little hesitation. Between them and secular Arabs, if that were really the choice, I can't see much reason not to choose the latter. By the way, I understood exactly what the settlers meant. As an Israeli, I get extremely angry anytime these people make such implicitly nationalist claims about what being a Jew means. Zionism as a matter of practical necessity I believe in, but as a form of ideological rabies I cannot stand.

Nobody said...

Ariel said...

Nobody,
I agree. If I had the authority to line them up against a wall there would be very little hesitation. Between them and secular Arabs, if that were really the choice, I can't see much reason not to choose the latter.


Maybe. But if by any chance we lose a war and Syrians tanks will be rolling on the streets of our cities I jolly well know who is going to fight or will try flee, and who is going to greet the army of liberation with rice and flowers.

Ariel said...

Well, you bring up a good point. But do you think Syrian tanks are likely to roll in anytime in the near future? And by the time they might, is it totally impossible that Arabs in Israel may have come to align their interests with the state? Maybe that's pure wishful thinking. At the same time, how long would you stay in a "Jewish Sharia state"?

Nobody said...

Ariel

Ours is not a region where one can know what can happen and how soon. And in general I believe that people who think that military superiority or existence are somehow guaranteed to Israel are idiots. In my view, Israel should act as if anything can happen and it can happen tomorrow.

About what Israeli Arabs will think in 20 years from now I have no idea, but in the next 5 years I don't expect to see anything out of ordinary. For one, the relations seem to be getting worse right now, for another Israeli Arabs are not necessarily secular. They are apparently going through the same process as the Arabs of the region, means getting more religious.

Neither I expect Israel to grow more secular in the future. Not at all. I don't know if it gets to the point of a Jewish Sharia state, but there is no reason for the seculars to think that they are going to be the dominant sector. The combination of two communities in one country who are both getting more religious spells more troubles in the future. Once again, it's impossible to know anything for sure but these are my two cents about the future.