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Feature: One Man's Battle For His Jerusalem Land Continues

American oleh (immigrant to Israel) Yitzchak Herskovitz continues his legal battle against Palestinian Authority Arabs squatting on his land.
By Ezra HaLevi
First Publish: 4/15/2008, 12:07 PM

American oleh (immigrant to Israel) Yitzchak Herskovitz continues his legal battle against Palestinian Authority Arabs squatting on his land.

Herskovitz won a lengthy legal battle last year against the squatters in the Jerusalem Magistrates Court. Despite that, the Salah clan continues to occupy the large plot of land and house in Beit Safafa next to the Jerusalem neighborhood of Givat HaMatos.

The home, on the property; Jerusalem's downtown and the Plaza hotel are seen in the background

The History
Herskovitz purchased the plot of land with the intention of building a home on it. Though Beit Safafa is an Arab neighborhood, it is part of Jerusalem, and the Jewish communities of Gilo and Givat HaMatos lie immediately to the south of the property. There are currently plans to expand Givat HaMatos, now home to Ethiopian olim (immigrants to Israel), but Herskovitz is unable to even bring a surveyor to the land without being rebuffed by local Arab mob violence.

The rows of structures on the bottom of the aerial photo are Givat HaMatos, Herskovitz's property is located in the triangle between those and the village. Derech Hevron Road is seen on the right.
A closer aerial shot of the property, taking up the center of the photo

After the Magistrates Court victory, a court order was issued to evict the Salahs. Police continually delayed the implementation of the court order and now the eviction has been frozen altogether until the end of the appeal to the District Court. The first hearing took place Wednesday.

The squatters, members of the large Salah clan of the eastern Gush Etzion village of Tamra, have been equipped with a new lawyer: Sami Arsheed, who is also on the forefront of the legal and political battle against excavations in Jerusalem’s City of David.

Atty. Arsheed (left) and the Salahs at the Jerusalem District Court Wednesday.

Attorney Arsheed gave a workshop for Arabs last September on how to delay demolition orders placed on illegally built structures, and has often sought to tie cases to pre-1967 Jordanian law in court. For example, he told the Jordan Times, with regard to the case of illegally-built homes in Silwan (City of David): “I am hopeful for [the following] reason: Some of these houses were built before 1967, and while Israeli law considers them without permit, there is such a thing as submission, meaning they should fall under Jordanian law.”

“I Thought it Would Take Sixty Days”
Herskovitz’s first lawyer, when the case was first heard by the Jerusalem Magistrates Court, was Attorney Yaakov Golbert. “I started as Yitzchak’s lawyer in ’92,” Golbert recalled. “I thought it would take 60 days – maybe a year. Little did I suspect there is an unwritten law that you cannot remove an Arab from land. Courts know it and Arabs know it – though it is not written anywhere….Throwing a Jew off is a mitzvah, but an Arab? They’ll find all sorts of other reasons not to do it.”

Yitzchak Herskovitz at the District Court Wednesday

The veteran trial lawyer, who also worked in the US legal system before his immigration, says it is clear to him the case is being financed with outside help. “The case is being financed by the PLO or Hamas or someone else,” he said. “They are not funding this on their own.”

Golbert says that the central turning point of the Herskovitz case in the Magistrates Court was when the document that the Salah clan claimed granted them ownership was shown to be a poorly crafted forgery. “The case went on for four years and it was in 1996 when they finally produced the fraudulent loan document. Their claim was: ‘We loaned [the Armenian who owned the property at the time] money and the document said we could use land until he repays the loan. He went to the States for treatment and died so we can use it forever.’ It was obviously a fabrication. You are in court 6 years and now you finally find this document?”

Golbert says it was the Salahs' former lawyer who thought up the document. “He’s now a judge in the Magistrates Court,” he lamented.

The document was rife with tell-tale signs. The date was in a different pen and color, written in western numerals instead of the Arabic numbers used at that time by the Arabs. No subdivision, lot or bloc numbers are listed on it either. In addition, the seal on the document does not extend onto the paper – it was taken from a different document.

Golbert also says the signatures of the two deceased witnesses were in the same hand as the document. “Of course their expert says something else,” he said.

New Law, New Court, New Strategy
Although the Magistrates Court found the title presented by the squatters to be a poorly-crafted forgery, the District Court decided to examine all the evidence all over again – a significant burden on the elderly Herskovitz, some of whose key witnesses are overseas.

At Wednesday’s hearing, the Salahs systematically contradicted previous statements submitted in the Magistrates Court trial. It is not yet clear whether the new story being offered on the witness stand by the Salahs is the result of a disregard for the implications of perjury, the effects of old age or a new strategy formulated by Atty. Arsheed based on the failure of the testimonies and evidence offered to the Magistrates Court.

At Wednesday’s hearing, Sheikha Salah, Ali Ibrahim Salah and their son, Ismail Salah all took the stand and were cross examined by Herskovitz’s lawyer, Attorney Anat Ben-Dror.

Sheikha Salah was being questioned about her ID card, which is issued by the Palestinian Authority and lists her residence as the Bethlehem suburb of Tamra – not the Jerusalem neighborhood of Beit Safafa. There is evidence that the Salahs were forced to flee Tamra due to criminal involvement there resulting in their eviction by the village elders.

Yitzchak Herskovitz and Attorney Anat Ben-Dror

The following are excerpts of the testimony:

Atty. Anat Ben-Dror: Can you please show the court your ID card?
Sheikha Salah: My ID card stays in my house.
Ben-Dror: Is it correct that your ID card is orange [as opposed to blue, which is granted to Israeli citizens –ed.]?
Salah: Yes, I swear to you that it is orange.
Ben-Dror: Your ID you received in Bethlehem?
Salah: Yes, the Jews gave me the ID.
Ben-Dror: I’ll repeat the question; you received your ID in Bethlehem?
Salah: I received an orange and not a blue ID.
Ben-Dror: In Bethlehem?
Salah: Yes, in Bethlehem.
Ben-Dror: What is the address that is listed on the ID card?
Salah: I can’t tell you what the address is on my ID because I am such an old woman.
Ben-Dror: I’ll tell you that the address on your ID, which I saw, is Bethlehem.
Salah: OK, I don’t know what address is listed on the ID.
Ben-Dror: Can you commit to bring your ID to the next hearing?
Salah: I can bring it.
Ben-Dror: Do you commit to bring your ID to the next hearing?
Salah: Yes, I commit.

Past History
Herskovitz and the Magistrates Court, based on both testimony and satellite photos of the house with its roof collapsed and the Salah clan living in a nearby tent, determined that the clan began squatting there during the 80s. The Salahs are now trying to claim they were there since before the Six Day War. Arsheed has tried to use the application of Jordanian law prior to 1967 in eastern Jerusalem to his benefit in several cases. It is suspected that this is the case in the present case as well.


Ben-Dror: Can you tell the court when you moved to Beit Safafa?
Salah: Before the Six Day War.
Ben-Dror: Where did you live during the Six Day War?
Salah: We lived in Khirbet HaMinzar [the Mar Elias Monastery’s land – across Derech Hevron Street from Beit Safafa –ed.] – not far from the house - near the house. After the war we moved.
[…]
Ben-Dror: I saw your ID and saw it was issued in 1981.
Salah: It wasn’t in ‘81, it was issued long ago.
Ben-Dror: Where did you live in 1981?
Salah: In the house we are in now. We bought it and are living in it.
Ben-Dror: I am telling you that I saw your ID and it was issued in ’81, and when your lawyer submits the ID [Arsheed committed to send a copy to the court within ten days –ed.] we will see.
Salah: Incorrect, I received the ID some time ago, I am a woman of 85.
Ben-Dror: After the war, Beit Safafa became part of Jerusalem, correct?
Salah: Correct.
Ben-Dror: Before you entered the house, you lived in a tent nearby, correct?
Salah: Yes, I swear to G-d, I swear to G-d.
Ben-Dror: Before you entered the house, you lived in a tent and you put sheep in the house – correct?
Salah: Correct. But at the time, the house was a ruin. We did repairs and fixed it up because we bought the house.

Deconstructing the Document
Ben-Dror: You wrote in your statement, in paragraph 5, that the Armenian [who you claim sold you the property] asked you to guard the house. To guard it how?
Salah: Someone approached us, asked us if we want to buy the house. We told him ‘yes, we are willing’ and we bought the house for 1,000 dinars. I swear to G-d it was 1,000 dinars. I am an 85-year-old woman and don’t swear falsely.
Ben-Dror: I’ll ask again. You wrote that the Armenian asked you to guard the house. Guard it how?
Salah: This is not correct. He didn’t ask that. This is a lie.

[At his point, Mrs. Salah seems to begin asserting that the document the family claimed was a loan document previously, was in fact a bill of sale. The document presented by the Salahs in the Magistrate’s Court was a loan document that stated that they could keep the property if the Armenian did not pay them back 1,000 dinars he borrowed.]

Ben-Dror: When did the Armenian ask you to lend him money – before or after the war?
Salah: After the war.
Ben-Dror: When he asked for the money – did he live in the house?
Salah: No, the house was empty. There was nobody there.
Ben-Dror: And where was the Armenian?
Salah: In Bethlehem.
Ben-Dror: The agreement you made with the Armenian was a loan agreement?
Salah: No, it wasn’t a loan deal. It was a deal of selling and buying.
Ben-Dror: I am reading in paragraph 9 of your affidavit statement that “the deal between us and the Armenian was a loan agreement.” Is that correct?
Salah: I swear to you that that is not correct.
Ben-Dror: So what is it?
Salah: We bought the house and signed on the paper and that’s it.
Ben-Dror: It was for a loan?
Salah: No.
Ben-Dror: It is written in your affidavit: “If the Armenian returns healthy and pays back the loan, the house will be his.” Correct or incorrect?
Salah: But he left and didn’t come back.
Ben-Dror: I’ll ask again. You wrote in your statement that you agreed with the Armenian that he will travel, get healthy, give the money back and get the house back. Correct or not?
Salah: I have not heard these things. But I remember there was a sale and a purchase and we paid for it.
[…]
Ben-Dror: Where did you sign this agreement with the Armenian?
Salah: In Bethlehem.
Ben-Dror: On this agreement there are two signatures of witnesses. Who are the witnesses?
Salah: I swear to you, the two witnesses died.
Ben-Dror: Who were they?
Salah: Ahmed Younis and Hussein Al Haj.
Ben-Dror: Who wrote the agreement? Whose handwriting is this?
Salah: The handwriting of the owner of the house. He wrote the agreement and we signed it.
Ben-Dror: In your affidavit you wrote in paragraph 8 that the agreement was written by the Armenian's son.
Salah: Incorrect. He has daughters and no sons.
Ben-Dror: I am holding in my hand the statement you submitted to the Magistrates Court. In paragraph 8, the exact same paragraph you submitted here, it says: "The agreement was written by the neighbor of the Armenian."
Salah: I didn’t say those things. I swear to G-d.
Ben-Dror: Today you are saying that the “neighbor of the Armenian” is incorrect and the “son of the Armenian” is also incorrect?
Salah: It is incorrect. Around us there are no neighbors and the Armenian only had two daughters.
[…]
Ben-Dror: If the Armenian had come back from America, would you give him the house?
Salah: I would not give the house back, because there was an agreement between us. We signed the agreement and he left. After we arrived and fixed up the house. Is it right that we should give it back to him?
[…]
Ben-Dror: I read the agreement - and the paper you attached as though it is an agreement. And in it, it is written that the Armenian is giving you the house to live in until he gives back the loan of 1000 dinars. This is not what you agreed?
Salah: No, that is incorrect.
Ben-Dror: Why didn’t the Armenian write in the agreement that he was selling you the house?
Salah: My husband is an old man of 95 – he didn’t know what he was signing [ostensibly in ’66, 42 years ago, when he was 53 –ed.].

[According to Mr. Salah’s ID, he is 93, born on January 1, 1915]

Ali Ibrahim Salah takes the stand.

Ben-Dror: Before you moved into the house, there was a tent near the house, correct?
Salah: Yes, there was a tent. But when Israel came – Israel banned the tents.
Ben-Dror: How long did you live in a tent near the house?
Salah: In the past, everyone lived in tents. But when Israel came, they forbid people from living in tents.
Ben-Dror: How long were you in the tent near the house? A day, a week, a month, a year?
Salah: We lived a long time in the tents. The old times were much better than the present times.

[Questioning continued and at one point the judge had Mrs. Salah move to the back of the courtroom because she was coaching her husband’s testimony.]

Ben-Dror: If the Armenian came back and repaid the money, would you give him the house?
Salah: I don't think the Armenian will come back because he wasted all the money.
Ben-Dror: If he came back with the money would you give it to him?
Salah: I swear to you if he did I would not. Because he sold me the house. Can someone come back and undo a sale?

The son, Ismail Salah, takes the stand.

Ben-Dror: You got [your ID] in Bethlehem, correct?
Salah: Yes, because our house is in the Bethlehem region.
Ben-Dror: Your address is Tamra, Bethlehem on the ID.
Salah: Incorrect. We are in Beit Safafa since 1967.
Ben-Dror: So when you got the ID in 2006, why didn't you tell them that you don’t live in Bethlehem, but in Beit Safafa?
Salah: Beit Safafa is very close to Bethlehem, a five minute ride on horseback.
[…]
Ben-Dror: Did your parents tell you that if the Armenian comes back they will give him back the house?
Salah: But the Armenian didn’t come back. He took the money and left. I don’t think he will give back the money because he took too much money and ran away.
Ben-Dror: Did they tell you that if the Armenian comes back that they will give him back the house?
Salah: They told me that if the Armenian comes back, within a certain amount of time – like less than a year – they would give him back the house. But he didn’t come back. He stayed away for about 40 years and didn’t come back for the house.
[…]
Ben-Dror: You submitted receipts that you paid Arnona (property tax) on the house since 1990. What about before that?
Salah: Around the house there was not people or houses. The house is in between Beit Safafa and Bethlehem.
Ben-Dror: Did you pay Arnona or anything to the municipality before 1990?
Salah: There were no services, roads or water near the house so they didn't receive from us any Arnona payments. The house was closer to Bethlehem. We would pay for water to Bethlehem.
Ben-Dror: And you gave your lawyer all your other receipts to prove ownership of the house, correct?
Salah: Correct
Ben-Dror: Do you have any receipt before 1984?
Salah: We didn’t receive any services…

Little Faith Left
Attorney Golbart says that Israeli courts allow Arabs to commit perjury on a regular basis – not a light accusation from a career lawyer. “The Police don’t want to prosecute,” he said. “The Mukhtar [of Beit Safafa] came and lied on their behalf. He said they bought milk at the time. But you can see in the aerial photographs clearly the Bedouin tent set up nearby, and then the point at which they moved in. The guy in charge at the Israel Lands Authority says he remembers telling them that he would kill their sheep when they first began squatting – because Israel did not allow sheep from Judea and Samaria into Green Line Israel.”

Golbert says Herskovitz must continue the legal battle, though he himself has little faith left in the legal system.

The next court date has been set for May 28, at 8:30 AM, at Jerusalem’s District Court. For more information or to RSVP attendance at the trial, call: 050 418 8580