The Ateret Cohanim organization may continue legal proceedings to evict 700 Palestinians from East Jerusalem’s Silwan neighborhood, even though the process by which it received rights to the land was flawed and raises many questions, the High Court of Justice ruled on Wednesday.

But it left the door open for residents to continue their legal battle by leaving a key factual question unanswered and saying the lower courts will have to rule on this question before approving the evictions.

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The court was ruling on a petition by 104 Palestinians who live in a part of Silwan that was a Yemenite Jewish neighborhood until 1938. In 1899, back when the Ottoman Empire still ruled the region, the land on which that neighborhood was built was registered with Jerusalem’s sharia court as belonging to a Jewish trust.

In 2001, the Jerusalem District Court approved a decision by the government’s administrator general to appoint three members of Ateret Cohanim to run the trust. That effectively gave the organization control over the homes of 70 Palestinian families comprising about 700 people altogether.

Open gallery view Silwan residents in the Supreme Court, November 21, 2018. Credit: Emil Salman

Ateret Cohanim, which works to move Jews into East Jerusalem, has so far evicted two families and wants to evict others. But the families have waged a lengthy legal battle against the process, arguing that the transfer of the land to Ateret Cohanim was flawed in numerous ways.

The families argued that under Ottoman law, the land in question was classified as Miri land – a classification that would have enabled the original trust to own only the buildings, not the land. Since the original buildings were destroyed long ago, the trust no longer has any claim to the land, the petition argued.

In their ruling, Justices Daphne Barak-Erez, Anat Baron and Yosef Elron accepted some of the petitioners’ arguments. For instance, it criticized the administrator general for transferring the land to Ateret Cohanim without notifying the residents or even bothering to find out who lived there.

“We can’t continue without expressing surprise at the state’s assumption that a decision so significant to the lives of hundreds of people – ‘liberating’ the property on which they have lived for many years [and transferring it] to other hands – isn’t the kind of thing that ought to be publicized through reasonable means,” Barak-Erez wrote on behalf of the court. “Even the precise identity of the property’s residents wasn’t known, and that’s the interpretation kindest to the state.”

Open gallery view Eviction of a Palestinian family from Silwan, April 2018. Credit: Emil Salman

“This is one of those cases in which considerations of efficiency and decency clash,” she added, noting that informing the residents would not only have been the decent thing to do, but could also have helped “clarify questions that were likely to arise” about the decision.

The justices declined to rule on the question of whether the land had originally been classified as Miri land, saying it’s difficult to answer that question now, more than 100 years later, and noting that even the state had changed its mind on this question. The issue does require clarification and “may even require the appointment of experts” to investigate, they wrote. But they said the High Court isn’t the right venue for determining how the Ottomans classified the land.

Despite the many problems they cited, the justices said they found no grounds for intervening in the administrator general’s decision, since the problems “lie in the statutory arrangement and are not the result of the administrator’s judgment.”

But they stressed that should Ateret Cohanim launch eviction proceedings against the residents, the Jerusalem Magistrate’s Court, which will hear those proceedings, will have to rule on whether the land is in fact Miri land before approving the evictions.

Open gallery view File Photo: Settlers blocking off an area of Silwan neighborhood, March 18, 2018. Credit: Majd Gaith

Barak-Erez closed her ruling by noting the hardship residents would suffer by being evicted from homes where they had lived for decades and which some had even purchased. She therefore urged the state to compensate anyone evicted.

Though the evictions, assuming the trust indeed owns the land, are legal, she wrote, “Evicting people who have lived on this land for decades – some of them without even knowing that the land belongs to others – creates a human problem. Especially when it’s done without compensation or any other solution. It seems the state would do better to consider providing a solution, in appropriate cases, for those evicted from their homes. Property rights are important, but it’s also important to defend people’s homes.”