Imminent New Settlement Enclave in Silwan

The Israeli media is reporting today on settler plans for major new construction in the heart of a densely-populated Palestinian neighborhood in East Jerusalem.  Here are the full details behind that story:

Under the cover of a temporary, partial lull in East Jerusalem settlement activities, a new and extremely dangerous development is taking place: the creation of a new, large settlement enclave in an area of Silwan – Batan al-Hawa – that, until now was only sparsely penetrated by setters.

To date, settlement activity in Silwan has been largely limited to the Wadi Hilweh area of Silwan, on the site of the Biblical City of David. In many ways, the Wadi Hilweh/City of David settlement has been the flagship of the ideological settlements in East Jerusalem. Today, approximately 400 of the 4000 residents of Wadi Hilweh are settlers, and the Government of Israel has vested control over much of the public domain in the area in the Elad settler organization.

The area under threat today is on the ridge immediately to the east of Wadi Hilweh – a neighborhood of Silwan known as Batan al Hawa. Until now, Batan al Hawa has been subject to only limited incursions by the settlers, principally in the illegally built Beit Yehonaton building (discussed below) and another couple of structures that have been inhabited only sporadically.

Not unlike the residents of Wadi Hilweh, and Um Haroun and Shimon Hatzaddik in Sheikh Jarrah, the Palestinian residents of Batan al-Hawa have been targeted by government-backed settlers. This is a community at grave risk.  More broadly speaking, the creation of this new settlement enclave would have highly detrimental ramifications that go well beyond the fate of one Palestinian family, with a potentially devastating impact on both the stability of Jerusalem and the possibility of future political agreements.

Why is this urgent? 

In recent days, on family living in Batan al Hawa, the Abu Nab family, has received an eviction order, compelling them to leave the home in Silwan in which they have lived for decades. While the initial eviction date has expired, it may be renewed and implemented in short order. The eviction order is based on a Jerusalem District Court judgment that was handed down in February 2015, under circumstances detailed below. While only the Abu Nab family is in immediate danger, legal proceedings have been instituted against tens of other Palestinian families in the area, for whom the eviction of the Abu Nab family would serve as a dangerous precedent.

Why is this important? 

The eviction of the Abu Nab family signals the beginning of a major campaign to transform Batan al-Hawa into a large settlement enclave similar to the one in Wadi Hilweh/City of David. Legal proceedings have been filed against twelve Palestinian families, and an additional twenty are at risk of eviction proceedings. In short, we are witnessing the inception of the first new ideologically driven settlement neighborhood in years. The Shepherd’s Hotel in Sheikh Jarrah (with occupancy expected in a matter of months) is also a new and problematic settlement, but the Batan al-Hawa settlement is far more damaging, for the following reasons:

• The creation of Batan al-Hawa entails the displacement of hundreds of Palestinians.
• Even with the currently limited settler presence, Batan al-Hawa has already become the location of some of the most violent intercommunal skirmishing in East Jerusalem. The new settlement will create an additional Hebron-like flashpoint, implanting extreme settlers in as densely populated Palestinian area.
• The Batan al-Hawa settlement will have a significant impact on the potential border in any future political agreement. Until now, the settlement enclaves ringing the Old City have been discontiguous, and any claims of encirclement required one to find a way to “connect the dots.” Batan al-Hawa will change this, creating a contiguous ring of settlements from Wadi Hilweh/City of David to the south of the Old City, to Ras el Amud to the East. (See map ).
• The creation of the Batan al-Hawa settlement is based on invoking a Jewish “right of return” to Palestinians areas, while denying such a right to Palestinians. In doing so, the settlement touches on the two most sensitive exposed nerves of the conflict – Jerusalem and the right of return/refugees.
• The settlement will be created by means of selective imposition of the rule of law, by which legal action is a weapon used against Palestinians at a time when the settlers are above the law (see our comments on Beit Yehonatan, below).

What is the history here?

The ideologically driven settlers of East Jerusalem are motivated by a sort of thermal map: that is, they do not seek to settle everywhere in East Jerusalem, but target those areas which “glow” with Jewish history. Such is the case with Wadi Hilweh/City of David. While the Wadi Hilweh ridge is indeed the site of Biblical Jerusalem, from which the city as we know it emerged, with one sole exception (the Meyuhas’ house at the very fringe of Wadi Hilweh), until the onset of the modern settlement projects, Jews had not resided there for two thousand years.

The case of Batan al-Hawa is different. This is the site of the small area that was inhabited by Yemenite Jews who, arriving in Palestine in the latter half of the 19^th century, were rejected by the established Jewish Yishuv and were consequently compelled to live outside the Old City. The Yemenite Jewish population dwindled in the area after the Palestinian uprising in 1929, and abandoned the area entirely after the Arab uprising in 1936-1939. The area was home exclusively to Palestinians from that time until the settler incursions of recent years. Palestinian residents of the area, a small number of whom initially took possession of homes during the British Mandate based on the consent of the Jewish owners, have been living there for decades. Most of those living in the targeted properties received possession by means of the Jordanian Custodian of Enemy Property in the years after the 1948 war.

Most, but not all of the properties now being targeted by settlers in Batan al-Hawa were once part of the historical Yemenite settlement (two additional properties were purchased privately- our report on those takeovers is here). In addition, in July 2015, the settlers filed a request for a building permit for the construction of a new three story residential building opposite Beit Yehonatan.

What legal constructs are permitting this to happen?

At the heart of the campaign to take over targeted Palestinian properties in East Jerusalem is Israeli legislation from 1970, which allows Israelis who owned property in East Jerusalem prior to 1948 to recover that property. No such provision exists for Palestinians. Consequently, in a city with two national collectives, Jewish and Arab, both of which lost properties in close vicinity of one another in the same war, only one national collective is entitled to “a right of return.”

With a broader legal perspective, the picture becomes more sinister. One of the major vehicles whereby the settlers were able to take over Palestinian properties in Silwan was based on a systematic abuse of the Absentee Property Law (our full report on the use and abuse of this law in Jerusalem is here). This law allowed the government to seize targeted Palestinian properties based on claims that these properties were “abandoned” by Palestinians who fled (claims often made on the basis of false or flimsy evidence). These properties were then turned over, en bloc, to the settlers. In juxtaposition with the 1970 legislation, the following principle emerges: any property purportedly abandoned by Palestinians will be seized by the government of Israel and turned over to the settlers, while any property ever in possession of Jews will be “reclaimed” and also turned over to the settlers.

In the years following the 1967 war, little interest was displayed by Israel in Batan al-Hawa. But since the 1990s, the Custodian General, a governmental official responsible for the management of properties the owners of which are not present, has been acting in active collusion with the settlers to “recover” properties in Batan al Hawa. The Custodian General is not to be confused with the Custodian for Absentee Property. The task of the former is to recover properties which belonged to Jews in the past, thereby re-establishing their property rights; the task of the Custodian for Absentee Property is to negate the property rights of the Palestinian property owners such that these properties become property of the State of Israel.

Both of these functionaries have exercised their authorities in service of the settlers, in a manner that have been found to be highly irregular and often illegal, by both the courts and the impartial government board of inquiry, the Klugman Committee, which in 1992 conducted an in-depth investigation into Israeli settlement policies. Following that Committee’s report, those policies stopped.  They have now been revived in Batan al-Hawa.

Two of the properties that are currently targeted in Batan al-Hawa derive from a family trust, the Benvenisti Endowment. The term “family trust” is misleading, since by means of legal machinations, the settlers now control the endowment and there is no connection to the Benvenisti family. The Custodian General has “restored” two properties (including the Abu Nab house) to the settler endowment.

These legal machinations are illuminating. While the settlers invariably invoke the “right of Jews” to return to their homes, neither the settlers in Batan al-Hawa nor those of Wadi Hilweh have any historical personal connection to the homes in question. Rather, we are dealing with the mythical attachment of the Jewish people to these areas, and in this context, the settlers are invariably the sole representatives of the Jewish people.

The actions of the Custodian General are even more nefarious in regard to a number of other properties in the area. In at least four cases, the Custodian General sold properties under his control to the settler-controlled Benvenisti Endowment – properties to which the endowment had no claims. Sale of properties in this manner – without any public tender process (which among other things would allow Palestinians to take ownership of homes they have resided in for decades) – has in the past been ruled illegal.

What about the settlement already in Batan al-Hawa? (Beit Yehonatan)

We have reported in depth on the case of Beit Yehonatan in the past, and the story of this house is pertinent to the recent developments.

Until now, Beit Yehonatan (so named in honor of the convicted spy, Jonathan Pollard) has been the major settler foothold in Batan al-Hawa, and in blatant defiance of the law. Beit Yehonatan was built in the early 2000s, and has been occupied since 2005. The construction took place without a building permit. Deflecting massive political pressure, then-Municipal Legal Adviser Yossi Havilio indicted the developers, who were convicted in judgments that were upheld by both the District and Supreme Courts. These verdicts compel the settlers to vacate the premises and compel the Municipality to seal the building.

However, Jerusalem Mayor Nir Barkat has systematically refused to carry out the Court verdict, in spite of being given direct and binding orders by the Attorney General to do so.  When Legal Adviser Havilio insisted that the verdict be carried out, Havilio found himself forced out of office. And in the meantime, the settlers residing in Beit Yehonatan, in defiance of Israeli court rulings, are guarded not only by a permanent Border Patrol post at the house, but by private security guards hired and paid for by the Ministry of Construction.

Among the pretexts invoked by the Municipality purporting to justify this flouting of the law is the claim that carrying out the verdict poses a threat to public order. Such concerns will apparently not be an obstacle that will prevent the eviction of the Abu Nab family.

It consequently should come as no surprise that Beit Yehonatan has come to symbolize for the Palestinians of East Jerusalem one of the cruel facts that impacts their daily lives: the settlers are above the law.

Is the Government of Israel implicated in developments in Batan al-Hawa?

Yes, and emphatically so. During one of the last rounds of settlement takeovers in Silwan, Prime Minister Netanyahu argued that these were merely private purchases and that opposing them would be “un-American.” Even then the claim was disingenuous in the extreme. None of these purchases could have taken place without the massive support of Government of Israel, whether materially or by means of the government-funded para-military presence by which these settlements houses are secured.

The case of Batan al-Hawa is even more blatant. With rare exception, none of these takeovers could take place without the active collusion between the Custodian General and the settlers. For example, the settlers lost the case to evict the Abu Nab family when it was before the Magistrate’s Court. Only after the Custodian General weighed in on behalf of the settlers was the verdict reversed on appeal. This collusion goes back even further: In the 1990s, the settlers jointly carried out a survey together with the Custodian General, in search of properties they could target. And as noted, the Custodian General has illegally sold properties exclusively to the settler-controlled “endowment” seeking control of properties in the area.

If all this were not sufficient to verify the existence of a Government of Israel/settler “joint-venture” in Batan al-Hawa, the application for the building permit for the new settler construction in the area – consisting of two “sub-permits,” provides additional and decisive proof:

• Sub-permit No. 2015/447/01, which deals with the construction of the new building, was filed by the settlers.
• Sub-permit No. 2015/447.00, which provides for expanding the road between Beit Yehonatan and the new building, was filed by the Moshe Merhavia, Director of the Jerusalem District of the Ministry of Construction (himself a settler and one of the major patrons of the settlers in East Jerusalem),  in coordination with the Jerusalem Municipality.

The fact that the Government of Israel and the settlers have filed a joint request for a building permit incontrovertibly demonstrates just how blurred the distinction between the government and the settlers has become: the settler DNA now informs governmental decision-making, and the governmental authorities have been outsourced to the settlers.

Denial of Government of Israel complicity in all this can only be described as false innocence. What is happening today is the forceful displacement of an indigenous population under the auspices of the government.

Can the Evictions Batan al-Hawa evictions be stopped?

Yes.

• The Government of Israel could stop the displacement of Palestinian residents of Batan al-Hawa by the settlers by refusing to provide resources – police or border patrol officers – to secure the evictions.  The policy employed Mayor Barkat to de facto prevent the removal of the settlers from Beit Yehonatan during the last six years – preventing court ordered evictions from being carried out – can be applied equally to Palestinians in this same neighorhood.
• At the same time, the Government of Israel can and should refuse to permit private security resources to be brought in by the settlers to secure the evictions.  Duringthe settler takeovers in September 2014, the settlers secured the takeovers by means private security firms that took on the trappings of a private militia – all financed by the government of Israel. If the Abu Nab family and others are displaced from their homes in this manner, the Government of Israel cannot deny complicity.
• Preventing the eviction of the Abu Nab family is a stop-gap measure. It is vital that these policies of displacement be stopped in their tracks. This requires a thorough investigation into the irregularities and illegalities entailed in the policies that have placed the Abu Nab home and similar properties under threat.