The current dispute in Jerusalem's Sheikh Jarrah neighborhood involves several properties with tenants whose leases have expired and, in a few cases, squatters with no tenancy rights at all, against owner-landlords who have successfully won court orders evicting the squatters and overstaying tenants. The litigation has taken several years, and the owners have won at every step. The squatters and overstaying tenants have appealed against the eviction orders to the Supreme Court. The only decision that stands before the Israeli government is whether to honor the courts' decisions and enforce the eviction orders if affirmed by the Supreme Court, or whether to defy court orders and deny the property owners their legal rights.

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Critics claim that the Israeli government should (or even that international law requires it to) deny the owners their property rights, but these claims are not based on any credible legal argument. They focus on the fact that the owners in the disputed cases are Jews, while the squatters and overstaying tenants are Arabs. The critics demand that Israel discriminate against and disregard the property owners' lawful property rights due to their Jewish ethnicity. It's obvious that critics of Israel would pay no notice to the dispute if the owners were Palestinian and the squatters and overstaying tenants were Palestinian.

Likewise, it's clear that critics of Israel would demand rather than oppose Israeli enforcement of the courts' judgments if the owners were Palestinian and the squatters and overstaying tenants Jewish.

Critics of Israel, in this case, have adopted the bigoted position that property rights should depend on ethnicity and that Jewish ethnicity should be the grounds for denying legal property rights. In doing so they have distorted the facts, perverted international law and attempted to intimidate Israel's courts and law-enforcement officials into adopting the critics' bigotry.

The legal basis of the parties' property rights

The legal rights of the parties themselves were resolved decades ago, in favor of the property owners. The owners in these disputes acquired their rights through an uninterrupted chain of transactions from predecessors in title in the 19th century. These legal rights were acquired under Ottoman law, and remained good through all different government regimes since then (British Mandatory, Jordanian occupation and purported annexation, and Israeli). No one seriously disputes the validity of the transactions through which the current owners acquired rights from their predecessors in title.

The tenants in these disputes acquired their leasehold rights through a chain from the Jordanian Custodian of Enemy Property in the 1950s. Their rights as leaseholders (not owners) were reaffirmed in several court rulings culminating in 1982, when Israel's civil courts issued rulings adopting settlement agreements between the leaseholders' predecessors in title and the owners. The rulings and settlement agreements established that the tenants had "protected leaseholds" under Israeli law (a status superior to ordinary leaseholds under Israeli, Jordanian and British law) but that the owners still had good title ownership.

The tenants enjoyed and continue to enjoy the benefits of the protected tenancies until today; this is why their leaseholds continued uninterrupted for more than half a century, until the recent expiration of the leases (in some cases due to serious breaches of the terms of the lease, in others due to the natural expiration of the lease rights). The squatters, of course, possess no legal rights at all.

The only break in the owners' uninterrupted chain is the sequestration of the properties from 1948 to 1967 by the Jordanian Custodian of Enemy Property. Jordan, which had illegally occupied eastern Jerusalem and the West Bank during its illegal invasion of Israel in 1948, denied Jews the right to exercise any property rights over land in the Kingdom during the entirety of its 19-year occupation (Jordan has continued this discriminatory practice to date).

Having expelled all Jews from the lands it occupied, Jordan transferred custody over all Jewish-owned property to the Jordanian Custodian of Enemy Property. In accordance with the British legislation on enemy property on which the Jordanian law was based, Jordan's sequestration of enemy property only extinguished owners' rights completely if the state seized title by eminent domain or if the Custodian transferred title to someone else. Importantly, in the case of the Sheikh Jarrah properties, the Jordanian Custodian did not purport to transfer ownership of the properties to anyone else. Instead, the Custodian leased some of the properties to Palestinian Arabs (the predecessors in title to the current overstaying tenants).

After the Six-Day War of 1967 ended Jordan's occupation of eastern Jerusalem, Israel adopted legislation that vindicated the private property rights of persons of all ethnicities. The 1970 Law and Administrative Arrangements Law (Consolidated Version) preserved the rights of private parties who received the title from the Jordanian Custodian of Enemy Property, notwithstanding the illegality of Jordan's occupation. (Persons who received rights from the Jordanian Custodian were all Arabs since Jordanian law denied property rights to Jews.)

Where the Jordanian Custodian had held custody over the sequestered properties through 1967, the 1970 law assigned custody to the Israeli Administrator General and Official Receiver with instruction to release custody to the property owners. And where Jordan had seized the property by eminent domain for public use, the 1970 law assigned ownership of the property to the state of Israel for the continuation of the public use.

Ironically, if the Jordanian Custodian of Enemy Property had assigned title to the predecessors of the current Palestinian Arab holdover tenants over the lands it seized from Jewish owners, Israeli law would have respected the resulting title. The reason the holdover tenants in Sheikh Jarrah lack ownership today is not because the state of Israel has denied the Palestinian Arabs any rights they acquired, but, rather, because the government of Jordan declined to give the Palestinian Arabs title to the land Jordan had seized.

Media distortions of the dispute

Many of the media accounts of the recent court judgments regarding the properties in Sheikh Jarrah have distorted the facts. Contrary to claims in some media accounts, Israel did not grant anyone ownership to any of the affected properties on the basis of ethnicity. Israeli law respects and upholds the property rights of persons of all ethnicities. Israel has even respected the property rights created by prior regimes that explicitly discriminated against Jews in their property laws—the Ottoman Empire, the British Mandate of Palestine, and the Jordanian occupation regime.

Contrary to claims in some media accounts, Israel has not created different rules for "enemy property" based on ethnicity. The ethnic dimension to the current-day property disputes is historic discrimination against Jews by a country other than Israel: Jordan denied Jews all ability to exercise property rights during its illegal occupation of eastern Jerusalem from 1948 to 1967. Israel has declined to continue Jordan's discriminatory practice, but it has respected the legal results of Jordan's actions. Ironically, Israel has been so respectful of the private property rights of Palestinian Arabs that it continues to uphold private Palestinian Arab property rights that are based on Jordanian discrimination against Jews.

Contrary to claims in some media accounts, the Israeli government has not decided to evict anyone in the current disputes. It is private parties, rather than the government of Israel, that have brought their claims to court. Landowners have done what they do throughout the civilized world—they have exercised their private rights to evict holdover tenants by going to court and winning an eviction order. The landowners rightly expect that Israeli police and enforcement authorities will respect the law and carry out eviction orders. Contrary to claims by pro-Palestinian advocates, the state of Israel has not issued any eviction orders against Palestinians in these disputes.

Contrary to the impression created by some media accounts, there has been no recent adjustment of the parties' property rights in favor of Jews or to the disadvantage of Palestinian Arabs. The parties' rights were established by voluntary transactions over many years and reaffirmed in a legal compromise and court rulings many decades ago. The Palestinian Arab litigants in these cases are now attempting to overturn more than a century of property transactions and overturn long-settled law in order to prevent the Jewish owners from exercising their lawful rights. The only involuntary transaction in the chain is the Jordanian 1948-1967 sequestration of Jewish property that is the source of the Palestinian Arab lease rights that have been upheld by the courts.

Contrary to the impression created by some media accounts, the property disputes do not involve any exotic or unusual Israeli laws. The leasehold and trespass legal issues at stake are similar to those found throughout the world, other than the unusually strong rent control and tenant protections given to the protected tenants (Palestinian Arabs in this dispute). The ownership laws at issue are likewise similar to those found throughout the world, and simply follow the chain of voluntary transactions. The only exotic element in the case is Jordan's 19-year sequestration of all Jewish-owned properties as "enemy property," which has been respected to the detriment of the Jewish property owners.

Contrary to the statements in some media accounts, none of the properties in the current dispute has been seized by the state of Israel. None of the property disputes turns on Israeli laws of land use or land planning or absentee property.

Contrary to the statements in some media accounts, the question in the land disputes is not whether "Jews owned the property prior to 1948." The ethnicity of the owners is not legally relevant to the dispute and does not serve as the basis of any legal rights in this case. The historical ownership is relevant only because it is part of the chain of title leading to the current owners' title. What has been litigated is the current rights of property owners.

Official distortions of international law

Likewise, many critics of Israel have fabricated provisions of international law to insist that Israel is required to discriminate against Jews in eastern Jerusalem because, in the critics' view, eastern Jerusalem is territory belligerently occupied by Israel. These claims are not only without foundation in international law, they also undermine international legal authority by creating a fake international law intended to be used in a bigoted fashion.

Contrary to the claims of the critics, nothing in the law of belligerent occupation, or any other provision of international law, requires Israel to adopt and enforce the racial and ethnic land discrimination that is part of Jordanian law. In fact, Israel would violate international law (such as provisions in the Covenant on Civil and Political Rights) were it to continue the Jordanian ethnic discrimination or adopt the distorted views of international law proposed by critics of Israel.

Contrary to the claims of the critics, there is nothing in the Geneva Conventions or any other part of the laws of belligerent occupation that forbids Israel to carry out court orders enforcing private property rights of landlords to evict their overstaying tenants. The claim that the property rights of Jews must be disregarded while other property rights must be upheld or even enhanced has no basis in the law and is morally offensive.

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Contrary to the claims of critics, international law does not require or even permit ethnically based denials of the legal rights of property owners due to alleged flaws in other Israeli laws. Some critics have claimed that Israel's land planning laws, land use regulations and 1950 Absentee Property Law are problematic or biased. Whatever the merits of such claims, the claims of the parties in the current Sheikh Jarrah disputes have nothing to do with Israel's land planning laws, land use regulations or the 1950 Absentee Property Law. Nothing in international law permits Israel to deny individual Jewish landowners their legal rights as punishment for the alleged guilt of their polity in adopting other, unrelated laws.

Contrary to the claims of the critics, permitting private Jewish landowners to exercise their rights in court does not constitute "illegal settlement activity." No reasonable interpretation of the various provisions of the Geneva Conventions and other treaties cited with respect to the legal dispute on "settlements" could possibly lead to the conclusion that international law requires stripping Jews of all private property rights in land in areas that critics of Israel call "Occupied Palestinian Territories." While critics of Israel like to pretend that international law forbids Jews to reside in any lands claimed as part of the "Occupied Palestinian Territories," that claim has no foundation in international law.

Professor Avi Bell is a lecturer at the University of San Diego School of Law and at Bar-Ilan University's Faculty of Law.

This article was first published by i24NEWS.

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As expected, a pretrial chamber of the International Criminal Court on Friday determined that a Palestinian state exists with jurisdiction in the Gaza Strip, Judea and Samaria, and east Jerusalem. 

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In doing so, the ICC's general prosecutor authorized an investigation into war crimes allegedly perpetrated in "Palestine."

The response to the ruling came quickly and was also predictable. Palestinian criminals, Palestinian terrorist organizations, such as Hamas, and other Palestinian and pro-Palestinian elements rejoiced. Israeli Jews, including the potential victims of these Palestinian criminals, condemned the ruling.

As for anyone who thinks the ICC will act in accordance with the law, these reactions are bewildering. Since when do murderers and other criminals celebrate the launch of a criminal investigation that could lead to indictments against them? Since when do the potential victims of such murderers oppose criminal proceedings against the very criminals who have targeted them?

The catch is, what's obvious clear to the leaders of the Palestinian Authority and Hamas is also evident to the elected leaders of Israel: The ICC is not an institution that acts according to the law, rather political impulses. It was clear, therefore, that the court would authorize the general prosecutor to investigate, even though the court itself explicitly stipulates it doesn't have that authority without the agreement of a state, and that according to the law, Palestine is not a state.

It is also clear now, for the same reason, that the prosecutor's investigation (or more accurately, her replacement, who will be chosen in the coming days) will result in indictments and arrest warrants against Israelis for committing the "crimes" of Jewish settlement and lawfully defending Israeli citizens from Palestinian terrorist attacks. And it's also apparent that Hamas is correct that no Palestinian terrorist will stand trial.

What can Israel do? It must act on all fronts to impair the legitimacy of the International Criminal "Court," impede its investigation in any way possible and use the opportunity to foster international cooperation against the ICC.

Among other things, this means Israel must make it illegal for any Israeli individual or organization to cooperate with the "court." Similar to the same prohibition that exists in US law, "informal" collaboration by the country's jurists with the ICC prosecutor must be criminalized. Israel also must finance its cooperation with the US, which has imposed sanctions on the ICC.

Only international political pressure can stave off the looming indictments and drumhead court-martials against Israelis. Any attempt to treat the ICC as a legal body increases this illegitimate institution's room to maneuver.

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Fatou Bensouda, the ICC's chief prosecutor, has already adopted doubtful legal arguments made by the Palestinians that: The PLO comprises a state; all parts of Israel that were under illegal occupation by Jordan and Egypt from 1948-1967 – including the Old City of Jerusalem – belong to the state of Palestine; Jewish settlements are an international crime; and IDF soldiers are war criminals. Therefore, we already know what the results of the "investigation" will be and what "evidence" will be collected.

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Meanwhile, the many crimes by the Palestinians, from torture and anti-Jewish apartheid policy to acts of terrorism and killing and the intent to commit genocide are not considered enough of a basis for the ICC prosecution to launch an investigation.

The restriction that Bensouda attached to her decision to proceed with an investigation into alleged Israeli "war crimes" only makes the situation worse. When she announced the investigation, she asked three judges to confirm that a state of Palestine existed that was sovereign over all parts of the Gaza Strip, Judea and Samaria as well as east Jerusalem. A year and a half ago, those same judges ruled that the prosecution needed to move ahead with another anti-Israel case, claims by Turkish allies on the Comoro Islands that the Shayetet commandos and the military command that oversaw them in the raid on the Mavi Marmara vessel in 2010 committed war crimes. We know what the ruling will be, and the ICC will become the first international tribunal to rule that the "state of Palestine" is sovereign over all disputed areas of Jerusalem, and Judea and Samaria.

Just two weeks ago, the media reported that high-ranking legal scholars in the Attorney General's Office had warned Prime Minister Benjamin Netanyahu not to take steps to apply Israeli law to the Jordan Valley, out of concern that the ICC would decide to launch an investigation against Israelis for that "crime," too. Even at the time, it was obvious to anyone who keeps tabs on the ICC that there would be an investigation against Israel, regardless of whether sovereignty was applied to the Jordan Valley or not. The legal advisers' warning not only demonstrated a total lack of understanding of the ICC, but also gave it more motivation to act against Israel by supplying the ICC with the goods – international proof that the court is changing how a state conducts itself by its threats of legal action.

This was not the first time that legal authorities in Israel, including some at the top ranks of their profession, have operated in a manner than unintentionally spurs on the ICC to proceed with its anti-Israeli actions. High-ranking legal authorities have talked about the Israeli legal system as a "defensive shield" against ICC investigations, as if the ICC were acting out of professional legal motivations, rather than political and diplomatic ones.

As long as Israel continues to treat the ICC as a legal entity, and as long as it maintains relations with ICC staff under the assumption that their intentions are good, as long as Israel continues to make legal arguments as if anyone in the ICC is listening, it will continue to lose the battle. We must wake up and take more stringent political steps, like the US already has, before the nightmare of indictments against IDF soldiers becomes a reality.

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This recent demand for criminal proceedings against Israelis joins a list of dozens of Palestinian complaints to the ICC about imaginary "crimes" of Israeli politicians and soldiers. The Palestinians have not held back against allies of Israel, and several months ago, they demanded the filing of criminal charges against US Ambassador to Israel David Friedman for the "crime" of verbally supporting the potential legal rights of Israel in Jerusalem and Judea and Samaria.

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The Palestinian demands for criminal charges against Americans will go unfulfilled; alas, the same cannot be said of the complaints against Israelis. The difference between the cases stems not from a stronger legal case for the Americans but rather from a superior strategy that is based on understanding that the ICC is a hostile political organization. Israel, by contrast, is guided by a failed strategy that insists on viewing the ICC as a legitimate legal institution.

The American strategy expresses itself in three areas. First: A complete refusal to cooperate with the ICC, anchored in US legislation. Second: A campaign to delegitimize the ICC that includes transferring US responsibility for dealing with the ICC to security officials rather than lawyers and presenting the ICC as an undemocratic, unaccountable, illegitimate institution that endangers the sovereignty of the United States and the constitutional rights of its citizens. Third: Concrete threats against The Hague, beginning with diplomatic and economic sanctions, through bilateral agreements with other countries blocking cooperation with the ICC against Americans, and ending in a threat to liberate Americans with force should they be arrested at the request of The Hague.

The American policy has proved its success. The US responded to the ICC prosecutor's request to open a full investigation of the alleged crimes committed by American soldiers in Afghanistan by canceling the visas of ICC teams and threatening additional steps. Soon after, The Hague judges decided to close the case and terminate the investigation on the grounds that, without American cooperation, there could be no reasonable expectation of convictions. Kenya and other countries have won similar victories when they refused to cooperate with an ICC that is viewed, even by its supporters, as a failure that suffers from political bias. In the ICC, there is a great fear of not only of further loss of legitimacy but also of more cases collapsing in light of the noncooperation of relevant states.

It is in this light that we can understand why Israel keeps failing with the ICC. The ICC prosecutor, who has already surrendered to Palestinian demands and opened a preliminary investigation against Israeli "criminals," can be expected to request permission from the ICC judges to open a full investigation. The case concerning alleged Israeli crimes in the Mavi Marmara flotilla incident remains open despite its legal weakness. All this is the result of an Israeli strategy that rewards the ICC with legitimacy instead of fighting it.

Israel's state attorneys are engaging in "informal" cooperation with ICC lawyers to try to convince them that the ICC lacks legal jurisdiction to act against Israelis. These claims are correct but the American experience shows that they will be ineffective. Israel's lawyers arranged for ICC teams to enter Israel even though canceling visas has proved effective. Israel has no legislation that warns those who would arrest Israelis, and Israeli lawyers tasked by the state with dealing with the ICC challenge are convinced that legal responses that failed everywhere else in the world will suddenly come to Israel's aid.

Worst of all, these lawyers are blocking Israeli policy actions out of fear of future Palestinian complaints to the ICC. In doing so, they are encouraging the ICC to escalate its moves against an Israel that is proving weak and conciliatory. The ICC already has gathered enough complaints against Israelis; blocking further complaints cannot help, and is, at any rate, impossible. And it is important to remember that in nearly two decades of operation, the ICC has arrived at final and successful convictions in only two cases. A country that surrenders its state interests out of the fear of embarrassing criminal proceedings comes out at a loss.

It's not too late to embrace an effective Israeli strategy vis-à-vis the ICC. It requires only determination to fight a political battle, ending the lawyers' treatment of the ICC as a professional legal institution, and an uncompromising struggle against the legitimacy of the failed institution.

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