To Which Transition and Justice to Whom? Towards Recognition of Transitional Justice in Israeli Case Law

[Lior Weinstein is a fourth-year student of Law and Hebrew literature (LLB and BA) and an LLM student in international law from the Hebrew University, Jerusalem and part of its international law forum.]

In this blog post, I will present a new development in Israeli case law – the recognition of transitional justice (TJ) in the property law context. This exciting development is the first time TJ was so recognized, a recognition that can be further developed in many other contexts.

TJ can and should play an important role in shaping the Israeli-Palestinian conflict and its resolution. It can have major implications regarding many aspects of the conflict – property, history, public discourse, and many more.

I will begin by briefly presenting the recent Sheikh Jarrah facts of the case in which TJ was recognized. Then I will offer a critical analysis of this recognition and explore shortly, possible directions of this recognition.

The Context of the Case

In its recent judgment regarding the status of lands in the Neighborhood Sheikh Jarrah in Jerusalem, the court dealt with a complex case in which several houses were built and housed for Palestinians by the Jordanian authorities, with the assistance of UNRWA, after occupying Jerusalem in lands that were recognized as Previously-Jewish, and thus were ‘empty’. 

As a result, when Israel occupied Jerusalem it gave the property rights on these houses to the original, pre-occupied owners of the land, several religious groups. Now, the groups have sold their property and it is owned by a Jewish company that argues as the successors of the rights. By doing so, a contradiction between the property right of both sides arose. These competing rights have led to numerous litigation in front of the court and were accompanied by heated political debates and violence between the sides – the Jewish and Palestinian owners of the houses.

In this judgment, the court ruled that the Palestinian owners of the land can remain on their property, and thus halted an eviction. Nonetheless, this situation is temporary, until the land ownership question will be fully understood, in the regular process. Thus, the long-term consequences of the decision are yet unknown.

What Exactly Was Recognized in the Case?

Justice Barak-Erez has added to her judgment, that this case demonstrates the complexity of TJ from a property law aspect. Thus, she states that the recognition of past wrongdoings in the context of war and the exchange of legal regimes can be expressed in land rights – the return of property rights to the original owners.

In particular, she discussed the volume and future impact of this return and the contradiction with the Palestinians’ property rights and summarizes the impact of Transitional Justice on the Jewish owners in the partial return they have gotten. Hence, the act of recognizing the property rights on the land to its original owners is a result of the “implementation of the Israeli law in Jerusalem and expresses the principals of transitional Justice”. [the translation is mine, L.W]

A Critical Analysis of Recognition

From a comparative outlook, in the resolution of many land disputes and conflicts when TJ was implemented, the land was returned and justice was made, materially, to victims towards property rights, although disputes on the matter still arise. For example, in the Cyprus-Turkish case, and more specifically the Demopoulos Case, in which (very briefly) the ECtHR has found property claims in Cyprus as inadmissible in front of the court. In the case of the Israeli-Palestinian conflict, property confiscation is a major issue of debate, especially due to extensive Israeli legislation on the matter.

As mentioned earlier, this is a historical recognition of TJ in Israeli case law. TJ plays a double role in the judgment: (1) the judicial use of the principles of TJ as a reasoning source for Judgments (thus, normative source), (2) the usage of TJ principles as a descriptive prism for legal actions.

In this case, even though TJ has played a role in favor of the Palestinian owners, the term was used in order to explain why the Jewish owners have already received their recognition, and the need to balance between the rights of the Jewish and Palestinian owners. I read the context of this recognition as “the easy way” to accept it as part of Israeli law since it was used to justify action in (historical) favor of the Jewish owners.

As can be understood from the judgment, the accepted transition was between the Jordanian and Israeli regimes. Thus, the Jewish owners are seen as the victims of this transition and their rights should be reserved. Starting to recognize TJ in this regard might opt on the scope of its influence – favoring one group and prioritizing pre-owned Jewish land over others’ rights.

By framing the return of property rights as part of TJ, this action lies within a major symbolic effect – the last regime has acted unmorally, and this action holds the potential to bring a remedy. A closer look at the cited articles in the judgment shows the same presumption. Hence, the last regime was undemocratic and performed multiple property-centered wrongdoings, and has stolen lands. As already presented by Justice Barak-Erez, this was not the legal history of this case.

As a result, a more fundamental question is ought to be asked – is the context of the case a context of TJ? most broadly, TJ has been defined by the UN as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice, and achieve reconciliation.”

This situation does not lie within the classic definition of TJ, because which legacy of large-scale past abuses is addressed here? If the actions of the state, when occupying the territory and returning the rights to its previous owners, are seen as an act of TJ, there’s a need to frame the both groups of owners under the same paradigm as victims. Hence, that in the shift of regimes, when they have legally gotten their property, their rights have been violated as well. This lack of classification again shows the bias of this definition of TJ in the case.

In this current dispute, the usage of the TJ terminology is especially misleading, since the competing rights do not lie between the original owners of the land, but rather by organizations that bought this land for political reasons. Therefore, the potential of reconciliation and re-building of trust are not promoted, even though these are major aims of TJ.

Potential Future Implications: A Double-Edged Sword

In theory, the recognition of TJ in Israeli case law holds great potential, to promote reconciliation towards, any victims of past wrongdoings. For example, using the TJ paradigm to offer reconciliation regarding The Yemenite, Mizrahi, and Balkan Children Affair, that is under a heated debate, the Mizrahi oppression, the Israeli-Palestinian conflict, etc. At the same time, due to the problematic premise of the paradigm of TJ in the case, it can be easily manipulated and cause more wrongdoings, on behalf of TJ, and thus promote whitewashing with it.

A sheer example of this misuse can be found in a blog post by Shahar Lifshitz in which he argued that in another case, the settlement “Mitzpe Kramim”, should not be evicted when competing property rights are balanced between the settlers and the Palestinian original owners due to the same principles of TJ should be implemented in the case. Shortly, in this case a settlement was built on private land. The settlers have argued for good faith (and the court has accepted this position) and the Palestinian land owners were compensated. Thus, following Lifshitz’s argument, the transitional reasoning for the partial return of land to the Jewish owners in Sheikh Jarrah now should be the same as the Palestinian owners of the land in Mitzpe Kramim, whilst balancing their rights with the settler’s right. 

In response to Lifshitzs’ idea, Ronit Levine-Schnur has argued that, unlike Sheikh Jarrah, in Mitzpe Kramim no political transition has been made, and since the legal framework is the law of belligerent occupation, that contains strong defense on the property rights of the protected persons, and thus this balance cannot be made. Moreover, in the particular facts of the case, there was a very short period of livelihood in the settlement, and the interest to protect their communal life is weaker.

Not entering the question of the application of TJ in the west bank, this short discussion between the two reveals the implications of the easily twisted TJ paradigm lying in the judgment – biased, that provides a legal framework to actions not promoting the key aims of TJ – reconciliation, and peacebuilding. The approach taken by Justice Barak-Erez, differs tremendously from the discourse around potential TJ processes in Israel and Palestine, due to the problematic categorization of victims in it.

Conclusion

Perhaps the terminology of TJ will play in the future a larger part in Israeli case law, both normative and descriptive, as it has played in the Sheikh Jarrah case. The way TJ was structured in the case leads to biases and misses the key point of TJ, to promote reconciliation to victims after systematic violation of human rights. Within the existing usage of the framework in the Sheikh Jarrah case and the academic discourse around Mitzpe Kramim and TJ, some of the flaws are revealed and demonstrate the dangers of misusing the conceptual framework of TJ in the Israeli Jurisprudence.