by Hugh Fitzgerald
Senator Elizabeth Warren has in the last few years been delivering herself of ever more strident anti-Israel remarks.
In October 2019, she said “everything is on the table” should Israel move away from a two-state solution. By “two-state solution,” she did not mean the one offered by the Trump Administration, but one which would be based on the “1967 lines,” which means the 1949 armistice lines. In May 2020, she signed a letter with 18 Senate Democrats opposing Israel’s possible “annexation” – really, an extension of sovereignty — of territories in the West Bank. On the campaign trail, the senator said she would push Israel to end its “ongoing occupation of Palestinian land” – and denounced the country’s decision to bar Reps. Rashida Tlaib, D-Mich, and Ilhan Omar, D-Minn., from entering the West Bank and East Jerusalem where, of course, they would have participated in an anti-Israel propaganda fest, complete with visits to the demolished houses of terrorists and scenes of Israeli bulldozers creating new apartments in “the settlements,” and whatever else they could find to blacken Israel’s image.
In a speech at J Street recently, Warren said that “if we’re serious about arresting settlement expansion and helping move the parties toward a two-state solution, then it would be irresponsible not to consider all of the tools we have at our disposal. One of those is restricting military aid from being used in the occupied territories. By continuing to provide military aid without restriction, we provide no incentive for Israel to adjust course.”
She’s a law professor, well-versed in bankruptcy law, but international law is not her strong suit. She assumes, a bit too self-assuredly, that she doesn’t need to study further any aspect of the Arab-Israeli dispute; she’s a Harvard Law professor; don’t try to tell her there are gaps in her knowledge. Between the two attitudes — Wittgenstein’s “whereof we do not know, thereof we should not speak” and the verses aimed at Benjamin Jowett, Master of Balliol, “I am the master of this college/And what I don’t know isn’t knowledge” — the complacent Warren displays the second attitude every time.
For It is clear from her constantly referring to “occupied territories” that Warren has no idea that the League of Nations assigned all of the land which we now call the “West Bank” to the Mandate for Palestine, to form part of the future Jewish National Home. She has certainly not read the Palestine Mandate, and especially its Article 6, which calls on the Mandatory (Great Britain) to “facilitate Jewish immigration” and “to encourage close settlement by Jews on the land.” She does not realize that the League of Nations’ Mandates became part of international law. She does not know that Article 80 (known as “the Jewish people’s article”) of the U.N. Charter constituted the U.N.’s solemn promise to fulfill the commitments previously made by the League of Nations when it created its system of mandates.
Now Warren has delivered herself of her thoughts on the Sheikh Jarrah dispute:. She thinks the evictions are “illegal and must stop immediately.”
Let’s get something straight. The Sheikh Jarrah dispute is over property – who has title to the land in question. It is being used by the Palestinians as an excuse to riot and attack Jews throughout Jerusalem, and especially exploited by Mahmoud Abbas to shift attention away from his decision to cancel the elections that he had announced with such fanfare earlier this year.
Warren complains about the “forced removal” of Palestinians, but there has been no such “forced removal.” Instead, there has been an excruciatingly slow process, as the property dispute has wound its way through the Israeli courts. All of the decisions have upheld the rights of the Jewish property owners. Now the case is to be decided by Israel’s Supreme Court, but given the riots in Jerusalem, the date for the Supreme Court to deliver its decision has been postponed.
Warren clearly does not know the history of this property dispute, so let’s set out the facts.
In 1875, the Chief Rabbis of Jerusalem, both Sephardic and Ashkenazi, bought the Sheikh Jarrah properties from Arab owners. then until 1948, Jews lived on the land, that was indisputably owned at the time, by two Jewish organizations. In 1948 Jordan’s Arab Legion captured east Jerusalem and expelled all the Jews, including those living in the Sheikh Jarrah neighborhood of east Jerusalem. In 1956, 28 Arab families moved onto the plots in Sheikh Jarrah; UNRWA built homes for them. In 1967, the Israelis captured east Jerusalem. But Israel did not, as it might have, simply expel the Arabs and move Jews back onto the land to which Jewish organizations had clear title, but that had been seized by Jordan in 1948 and kept until 1967. Instead, after 1967 the Arabs continued to live in their homes in Sheikh Jarrah, refusing to pay rent and claiming “to own” the properties in question.
Here’s a summary of the legal status both of the disputed properties in Sheikh Jarrah, and of those residing in them over time.
Legal status of the property:
- According to the Supreme Court, the land in question “was owned by Chief Rabbi (Hacham Bashi) Avraham Ashkenazi and Chief Rabbi Meir Orbach until the War of Independence , after they purchased it in 1875 from its Arab owners.”
- Subsequently, two Jewish organizations, Va’ad Eidat HaSfaradim and Va’ad HaKlali L’Knesset Yisrael, worked to register the land with British Mandatory government in 1946. (It’s unclear why that attempt to register was made in 1946, if the land continued to be owned by the Grand Rabbis until 1948.)
- The properties were registered with Israeli authorities under these two organizations in 1973.
- These organizations sold the properties to the Nahalat Shimon organization in 2003.
Status of the residents:
According to a 1989 High Court decision, and reaffirmed repeatedly in subsequent cases, as in the case of any tenant living on someone else’s property, residents living on the land owned by these organizations were required to pay rent to the organizations that owned the properties. Their failure to do so, along with instances of illegal building and illegally renting properties to others, resulted in the current legal proceedings against them, culminating in the District Court decision.
Crucially, in 1982, a number of residents — including those whose descendants appealed to the District Court — agreed in Magistrate Court that the two Israeli non-profits were the legal land owners.
How did the District Court address the current residents’ claims of ownership?
The District Court case addressed the ownership claims of the eight appellants. The court found that:
- Three of the appellants are the children and grandchildren of residents who acknowledged the ownership of the Israeli organizations in court proceedings in 1982.
- Four of the appellants claim to have purchased the properties in 1991 — 19 years after the properties were registered under the Israeli groups — from a man named “Ismail.” The court notes that the appellants never identified “Ismail,” nor did they prove that they had indeed purchased the properties from this person.
- One appellant represents the estate of a deceased former resident. In 2009, the Court determined that she had not paid rent as required, had built illegally on the property, and therefore could be evicted.
Previous court decisions on the ownership of the property:
In October 2020, the Magistrate Court rejected the residents’ claim that the property had been promised to them by the Jordanian authorities, during the years in which Jordan controlled the area. According to that decision, “all of the witnesses were born after 1967 or were very young at the time and testified that they heard about the [Jordanian] promise from an older relative.”
They claimed to have “heard” about the Jordanian promise from older relatives, but had nothing in writing to back up this flimsiest of claims.
The court added that “the only document presented” to prove this alleged Jordanian guarantee “is a copy of a standard document from the Jordanian equivalent of the Housing Ministry, but this form is un-signed and does not bestow ownership on any of the defendants.”
These appellants had nothing to offer but an off-the-rack standard document, unsigned, one of those that anyone could pick up at a counter at Jordan’s Housing Ministry. Without a signature, it has no legal significance whatsoever.
Similarly, earlier Supreme Court decisions rejected ownership claims of Sheikh Jarrah residents based on what the court found to be an apparently altered Turkish deed and an “inauthentic” contract.
Moreover, in 2020, the Magistrate Court noted, “throughout all of the deliberations, the defendants claimed through their counsel that they were not tenants but rather held the property right. Apparently, as they realized that they had not convinced the Court that they were the owners of the property, the defendants then changed their story and claimed for the first time that they were tenants who should not be removed from their homes.”
The record above of the legal dispute is quite something: the forgeries (altered Turkish deeds), the “ownership deed” presented by the Arab appellants that turned out to be an unsigned standard document readily available at Jordan’s Housing Ministry, of no legal validity; the claims – without any documents to back them up – that a mysterious man named “Ismail” had sold them properties; the three Arab appellants who in 1982 changed their stories and admitted they did not own the land on which they were living; the four Arab appellants who in 2020 did the same thing, and dropped their claim of ownership, that they had maintained for so long, and realizing that they had no case, now claimed to be “tenants who should not be removed from their homes.” No written evidence has been presented, at any time, by any of the Arab appellants, other than one forged Turkish document, to support their claim.
Yet in mid-May, as the Arabs were rioting in Jerusalem because of their whipped-up fanatical frenzy over the so-called “eviction of Arabs from Sheikh Jarrah,” Warren tweeted her outrage – not at the violently rioting Arabs, who were attacking Jews throughout Jerusalem, and sometimes posting their attacks on TikTok so other Arabs could enjoy the spectacle – but at the Israelis, who have been scrupulous in having their judges weigh the competing claims in what is, in essence, a property dispute. These Sheikh Jarrah “evictions” — that have not taken place — are being used as a political weapon, to bring tens of thousands of Arabs into the streets of Jerusalem and onto the Temple Mount, where they have been rioting continuously for nearly a week, while the Israeli police struggle manfully to keep those rioters in check, with a minimum of violence. The Sheikh Jarrah riots are being used by Mahmoud Abbas to divert attention from his having cancelled the elections, and also are being whipped up by Hamas operatives as a way to challenge Abbas’ control of the Palestinians in the PA’s home turf of Jerusalem.
Here is that ignorant and malicious tweet by Warren on Sheikh Jarrah:
The forced removal of long-time Palestinian residents of Sheikh Jarrah is abhorrent and unacceptable. The Administration should make it clear to the Israeli government that these evictions are illegal and must stop immediately.
What is Warren talking about? There has been no “forced removal” of “long-time Palestinian residents” from the Sheikh Jarrah neighborhood. That will happen only if Israel’s Supreme Court decides, in this case of property law, that the Jewish plaintiffs have proved that they possess title. All the lower courts have decided in favor of that Jewish plaintiff — the Nahalat Shimon organization – but the Supreme Court has yet to deliver its own ruling.
Has Warren studied this case? Is she aware of the chain of title, from the Grand Rabbis who bought the Sheikh Jarrah properties in 1875, to the two Jewish organizations that subsequently bought it from the rabbinates, Va’ad Eidat HaSfaradim and Va’ad HaKlali L’Knesset Yisrael? Does she realize that for nearly 75 years, Jews lived on those properties by right, paying rent to the two organizations that owned the property, and were expelled by the Jordanians in 1948? In 1967 that property was returned to its Jewish owners, but they did not at once eject the Arab squatters on their land. Instead a long court battle ensued. Over and over again the claim of ownership presented by the Arabs, who in the end admitted that they were not owners but tenants who, however, “should not be evicted” (even though they had not been paying rent) was weighed against the Jewish claim, which was solidly based on recorded deeds of title, starting with that deed of ownership that was transferred from an Arab owner to the two Grand Rabbis who bought the property in 1875.
Senator Warren looks foolish. Why didn’t she look at the legal history of the property being disputed, and compare the competing claims, and evidence offered to support those claims, both by the Jewish Nahalat Shimon organization that, with its meticulous paper trail of recorded titles, contested the claims of ownership by the Arabs, who offered only a single forged document, and comically flimsy evidence (a vague claim that a man named “Ismail” had sold them the properties), and who have yet to convince a single judge of the remotest possibility of their claims to ownership?
Here’s what Senator Warren should have said:
“The property dispute over some properties in the Sheikh Jarrah neighborhood of east Jerusalem has been going on for many decades. I decided to look into the matter myself, and have now read the various briefs presented, and the judgements in the courts below. It was a lot to take in. All the courts so far have found for the Israeli plaintiffs. The Arab defendants have not offered any written evidence, save for one Turkish document that is apparently a forgery, to back up their claims of ownership. Several of the Arab claimants admitted in 1982 that they did not own the land their houses were built on, but were tenants. In 2020 more of the Arab claimants admitted the same – that they were tenants and not owners. In neither case was there any evidence that these tenants had paid rent. There was evidence of illegal building on at least one of the properties. Now the Supreme Court will issue its ruling. I have complete faith in the Israeli judicial system. However, I do urge the Israeli Supreme Court to postpone to a less fraught time the issuance of its judgment.”
That’s what she should have said. But she didn’t. And she won’t.