The law has become a central point of contention in the public discourse over Sheikh Jarrah. In response to Palestinian claims of ethnic cleansing, Israeli propaganda has continuously attempted to depict the pending expulsions of Palestinian residents of Sheikh Jarrah as a “real estate dispute,” emphasizing that the case is still pending in the Israeli Supreme Court. But claims over land and housing–that is, “real estate disputes”–are at the core of the Israeli project of settler-colonization and the Palestinian struggle against it. Israeli courts–including the Supreme Court–are not neutral arbiters of these disputes, but rather protagonists in a national-colonial project that distributes value, pain, and resources based on ethno-national lines.
Understanding the law’s role in the project of Israeli colonization requires examining how distinct legal frameworks applied across a legally fragmented space can nevertheless share a common defining logic. One manifestation of this shared logic becomes evident by scrutinizing claims to land adjudicated by Israeli courts: Israeli state agencies and Jewish settler groups are treated as presumptively proper claimants of property while non-Jewish Palestinians are treated, at best, as dwellers who are not entitled to claim property but merely inhabit the land at the sufferance of Israeli authorities. Under this logic, state lands are translated to Jewish lands, as further enshrined in the 2018 constitutional amendment of the Jewish Nation-State Law, which declares “the development of Jewish settlement as a national value,” and requires the state to positively act in its favor. Drawing from Cheryl Harris’s famous formulation, I refer to this logic as “Jewishness as property” under Israeli law.
The production of Jewishness as property under Israeli law is central to a structure that can be identified as settler-colonial: land is a precondition and an underpinning material resource for a settler society to thrive at the expense of the natives who inhabit it. It is within this structure that the law functions as a cutting-edge technology: it is the law that enables, facilitates, and mandates the ongoing dispossession of Palestinians and the redistribution of their resources in favor of Jewish-Israelis.
The production of Jewishness as property under Israeli law is central to a structure that can be identified as settler-colonial: land is a precondition and an underpinning material resource for a settler society to thrive at the expense of the natives who inhabit it. It is within this structure that the law functions as a cutting-edge technology: it is the law that enables, facilitates, and mandates the ongoing dispossession of Palestinians and the redistribution of their resources in favor of Jewish-Israelis. The combination of highly politicized and racialized distribution of land and property with a juridical system that perpetuates and facilitates this distribution, produces what many Palestinians have long called ethnic cleansing. Property disputes and a lawfare against Palestinians are not the opposite of ethnic cleansing; they are precisely one of its methods.
A Chronology of Dispossession under the Law: Umm al-Hiran, Khan al-Ahmar, and Sheikh Jarrah
We can notice the logic of Jewishness as property under Israeli law by tracing three cases of “property disputes” that serve as microcosms of three different legal frameworks at play: Umm al-Hiran, Khan al-Ahmar, and Sheikh Jarrah (located in Israel, the West Bank, and East Jerusalem, respectively). Supervising all of these different frameworks is the Israeli Supreme Court, which is the only institution that adjudicates claims pertaining to Palestinians from the different territorial-conceptual fragments. Each of these cases is subject to a distinct set of laws and their residents are subject to a different legal status: Umm al-Hiran residents are citizens of Israel who ostensibly enjoy constitutional protections under Israeli civil law; Khan al-Ahmar residents are residents of the West Bank (Area C) who are subject to the direct control of the Israeli military; and Sheikh Jarrah residents are residents (but not citizens) of Israel who are subject to a distinct legal status that allows, among other things, the revocation of their residency under certain conditions.
The case of Umm al-Hiran demonstrates the way that constitutional protections become void and “state lands” are used to dispossess and displace Palestinians. During the 1950s and early 1960s, Israel has not only dispossessed Palestinians from the overwhelming majority of their lands but also turned 93% of the land under its control into state property. It achieved this by raising the evidentiary bar to prove ownership; denying customary land ownership; resorting to mass expropriations; and using other laws including the “Absentee Property” law. In the West Bank and Gaza, Israel has similarly used Jordanian and Ottoman laws that were in place up until 1967 and allowed the military governor to acquire control over lands as “state lands” (mostly, but not only, in what became Area C under the Oslo Accords). In blatant defiance of international law, the Israeli Supreme Court has repeatedly allowed the establishment of Israeli settlements in these lands.
State lands are effectively translated to Jewish land to materialize Jewishness as property. Israel has not built a single Palestinian locality for Palestinians since 1948 while creating more than 900 “Jewish localities” in Israel and quadrupling the number of settlers in the West Bank since the early 1990s. At the same time, continued Palestinian presence on the land has often been interpreted as a mere privilege granted by the Israeli state but one which cannot amount to a property right (to use Hohfeldian terms). Umm al-Hiran is a classic example for such a case: the residents of Umm al-Hiran have been displaced and dispossessed from their original lands of Khirbet Zubaleh in 1948, and relocated by Israeli authorities to Umm al-Hiran in 1956. In 2002, the Israeli government decided to establish the town of Hiran at the expense of further displacing the Palestinians of Umm al-Hiran. While the state initially claimed that Umm al-Hiran residents were trespassers on state lands, it eventually conceded in court that they resided there for generations by permission of the Israeli state itself.
Confronted with this dispute, Supreme Court Judge Eiakim Rubinstein ruled that: “The members of the tribe did not acquire ownership rights to the land under our property laws, although they resided on it [for generations] by permission.” This permission, we learn, can be revoked quite effortlessly, regardless of the constitutional protections that ostensibly apply to Palestinian citizens of Israel. As state claims to land trump Palestinian claims to it, the state can move forward with its racialized redistribution of land according to the logic of Jewishness as property. The result is that now Hiran, a Jewish-only “community town,” is in the process of being erected on top of the dispossessed lands of Umm al-Hiran residents. A law that allows the establishment of such segregated “community towns” based on admissions committees that decide on “social and cultural suitability” was upheld by the Israeli Supreme Court in 2014.
The case of Khan al-Ahmar where Palestinian residents petitioned the Israeli Supreme Court asking to prevent demolishing their village demonstrates the Court’s reliance on another tool: “illegal construction” in the West Bank, an accusation levied when Palestinians failed to receive the proper building permits from the occupying Israeli authorities. But receiving these permits is practically impossible in the first place. The systemic nature of imposed illegality cannot be denied: between 2016 and 2018, for example, Israel rejected over 98% of the building requests submitted by Palestinians in Area C. The “permit regime” itself becomes the tool to construct illegality and impose it on Palestinian villages.
No matter which legal framework is at play, Palestinians cannot effectively produce legal claims to land as property: they are merely subject to state and settler counter-claims for its ownership.
The fact that the Israeli authorities in the West Bank have not issued any building permits or outline plans to Khan al-Ahmar for decades was not even a factor that deterred the Israeli Supreme Court’s decision that the whole village was illegal, despite the fact that the village was in existence even before Israeli occupation of the West Bank. In the eyes of the Court, the issue was startlingly clear: “The starting point for this decision is the fact that the construction at the Khan Al-Ahmar site – both the school and the dwellings – is illegal,” opens the Supreme Court’s decision in Khan al-Ahmar case from 2018 (written by judge Noam Solberg, himself a settler in an illegal settlement in the West Bank).
Once illegality has been constructed against Palestinian communities, the road is paved to demolish the buildings, displace the Palestinian residents, and redistribute the land in favor of Israeli settlers. (The Israeli government, however, has not yet proceeded with the actual displacement of Khan al-Ahmar due to international pressure. Now, petitions by Israeli settler organizations asking to “implement the law” and demolish the village remain pending at the same Supreme Court that declared the plans to displace the village lawful).
In Sheikh Jarrah, a different legal arrangement becomes more central: The Absentee Property Law and the Legal and Administrative Matters Law. Taken together, these laws allow Jewish settler groups to capitalize on and reclaim allegedly Jewish-owned property in East Jerusalem before 1948, while denying the same from Palestinians regarding pre-1948 Palestinian-owned property in West Jerusalem or elsewhere. Here again, continued Palestinian presence on the land by permission of the governing authorities (Jordan in this case) becomes irrelevant to the “property dispute” litigated in Israeli courts.
Lower courts have consistently denied the claims of Palestinian residents of Sheikh Jarrah to property, and the Israeli Supreme Court is expected to deliver its decision in this case later this year. The Israeli Attorney General, meanwhile, stated to the Court that he is not willing to intervene in the existing judicial proceedings and the findings of lower courts that ordered the forced evictions of Palestinians from their homes in favor of Jewish settler groups. In other words, the Attorney General placed the dispute as one in which the state has no role, and where “civil parties,” that is, Israeli settler organizations and Palestinian residents of Sheikh Jarrah, are simply litigating competing claims over property. This position not only overlooks the discriminatory legal infrastructure that allows such disputes to take place, but also effectively asks the Supreme Court to rule that the Israeli legal order that distributes property to Israeli-Jews at the expense of Palestinians must be maintained and validated.
Legal Fragmentation
The law employed in each of the above cases is different: the identity of the Israeli claimants (Israeli state or settler organizations), the procedure (civil or administrative), the standard of review, the legal doctrines, the applicability of Israeli constitutional protections, and more. But a pattern is clear: consistent construal of facially neutral laws to dispossess Palestinians from land in order to redistribute it in favor of Jewish-Israelis. No matter which legal framework is at play, Palestinians cannot effectively produce legal claims to land as property: they are merely subject to state and settler counter-claims for its ownership.
While Palestinians are governed by fragmentation, Jewish-Israelis are subject to a unified legal system with constitutional protections at play regardless of conceptual-territorial divisions.
While Palestinians are governed by fragmentation, Jewish-Israelis are subject to a unified legal system with constitutional protections at play regardless of conceptual-territorial divisions. This becomes clearer when the cases of Palestinian dispossession from land demonstrated briefly above are contrasted with the 2005 Israeli Supreme Court decision pertaining to the legality of the evacuation of Israeli settlements from Gaza. In that case, the Supreme Court ruled that legal provisions that limit the ability of Israeli settlers to claim compensation are unconstitutional due to an infringement on the constitutional right to property. The Supreme Court erects and extends constitutional privisions to Jewish settlers in internationally-recognized occupied territory to protect Jewishness as property under Israeli law while it denies Palestinian property rights and skips constitutional analysis altogether when it comes to Umm al-Hiran, Khan al-Ahmar, or Sheikh Jarrah.
A unifying logic of Jewishness as property, central to a system of settler-colonial domination, gives coherence to these legal fragments. The ability to claim Jewishness as property is further entrenched in the immigration laws that allow any Jewish person in the world to immediately become a citizen of Israel and claim property rights under Israel’s control. The same web of immigration and citizenship laws are simultaneously used to further fragment Palestinians by revoking residency status, denying the right of return of Palestinian refugees, outlawing Palestinian family reunification, and banning entry of other Palestinians in the diaspora.
The Israeli-American settler Jacob, who went viral after he had been videotaped saying to the El-Kurd family of Sheikh Jarrah that “if I don’t steal it [the El-Kurd family home], someone else will,” powerfully demonstrates the logic of Israeli law. While Jacob acknowledges stealing, Israeli law ultimately rewards him as a claimant of Jewishness as property. It is under the machinations of Israeli law that the thief becomes the owner.
