Sarah Kaminker, "For Arabs Only:  Building Restrictions in East Jerusalem" Journal of Palestine Studies 26:4 (Summer 1997): 5-16

Summary:

Government planning policy denies Palestinians the right to use their land in East Jerusalem. Thirty-three percent of this land has been expropriated and used for building homes for more than 40,000 Jewish families. Planning schemes confine Palestinians to 10 percent of the land area of East Jerusalem. Draconian bureaucratic measures imposed on "Arabs only" aggressively prevent construction on the remaining Palestinian lands in East Jerusalem. The result: a shortage of 21,000 homes for Arab families. Using Har Homa to provide for the Arab "homeless" could be the only political and moral justification for developing the lonely mountain Jabal Abu Ghunaym.
 

The city of Jerusalem has been the focus of my professional, political, and personal life for more than thirty years. My relationship with the city has been a good and loving one, interspersed with periods of harsh confrontation and disappointment. But never, until now, have I looked with dread at the future of our mutual involvement. The Government of Israel's decision to build a Jewish neighborhood on Jabal Abu Ghunaym, to be renamed Har Homa, may signal a rift too wide to repair.

THE LAY OF THE LAND

Jabal Abu Ghunaym is a lonely, barren, and stony mountain, with a surprising line of trees running from the adjoining valleys to the crest, something like the blades on a dinosaur's back. It lies within the municipal boundaries that mark the southwest extremity of Jerusalem. For kilometers to the east, west, and south of the mountain—within the boundaries of Jerusalem as they were extended in 1967—there is only more barren land, occasionally broken by other, smaller lonely mountains. But on the northern side of the mountain there are two Palestinian neighborhoods, Umm Tuba and Sur Bahar, also within the Jerusalem municipal boundaries and "kissing close" to Har Homa. Beyond the open land and outside the municipal borders are two Palestinian towns, Bayt Sahur and Abu-Dis; the Palestinian city of Bethlehem; and the lands of the West Bank village Obadiyya. The nearest Jewish neighborhood on the southern rim of Jerusalem is Gilo, which was built on Palestinian land expropriated in 1970. It is 3 kilometers away from Har Homa.

I am describing a geographical area in the center of a region that is entirely Palestinian. The region is populated only by Christians and Muslims, who live in the style traditional to Arab towns and villages. When I visit Har Homa, as I often do when leading tours of East Jerusalem, I remember how my son, stationed in an army base on the West Bank in the mid-1970s, responded to the landscape around Janin. "This is an Arab landscape. What am I doing here?"

EARLY YEARS IN JERUSALEM

When I moved to Jerusalem from New York City in 1966, searching for the Heavenly Jerusalem (Yerushalayim shel maalah), I found only a dull small town, where everyone knew what was cooking in everyone else's pot and where the stoplights closed down for the Sabbath. The professors and the government workers in Rehavia barely spoke to the North African immigrants in Katamon. But the city planners were very welcoming. They wanted to know what I thought about plans to swing a road through the park of the Valley of the Cross. They were not happy when I spoke in favor of the road, claiming it is easier to move a tree than to move hundreds of people to work during rush hour. (Subsequently, Jerusalem planners learned this concept, perhaps too well, and have few compunctions today about swinging arterial roads through park land.) The planners showed me the roads in the Jerusalem master plan and how they tied into existing roads in East Jerusalem. The vitality of their hope for reunification of East and West Jerusalem filled me with pleasure.

That hope was realized a year later, after the 1967 war. Jerusalem had suddenly become a big city, a cosmopolitan city. I desperately wanted to take an active part in reuniting its two parts. Israel could now show the world, I thought, how minority rights could be protected even in a huge open city, provided it was managed with sensitivity. Our actions in the new old city of Jerusalem would prove that "out of Zion shall go forth the Torah." So I wandered daily through the no-man's-land that had separated East and West Jerusalem since 1948. I surveyed the area with a set of British mandatory maps, marking them with colored pencils. I was preparing the background material for the national park around the walls of the Old City, never thinking for an instant that I was contributing to the first in a series of plans that prevent Palestinians from using their land.

Immigrants were pouring into the country at the time. The existing schools could not hold them. Planning new schools that would draw together children from the 1948 immigrant neighborhoods, like Katamon, and the new immigrant neighborhoods, like East Talpiot, was, I thought then, and still do today, God's work. And the dilapidated Arab schools had to be rebuilt and enlarged so that not one child in the city of Jerusalem would continue to study under hideous conditions. Here we are, almost thirty years later, and I am still taking visitors to see the tiny damp apartments where the children of Issawiyya study.

At the time (1975 or so), government money was being poured into planning and building six new Jewish neighborhoods on expropriated land in East Jerusalem. (There are now eight such neighborhoods in East Jerusalem.) After the 1967 war, Israel had attached Jordanian Jerusalem and extensive lands in the West Bank to create new borders for a city that was now three times its original size. Israeli Jerusalem had been 38,000 dunams (4 dunams = an acre) before the war. With the 70,500 dunams that were annexed, it now contained 108,000 dunams.

The new neighborhoods were planned and built according to modern standards that had never before been used in Jerusalem. We were told that these neighborhoods would protect the new borders of Jerusalem and that it was therefore necessary to take land away from the Arabs in order to build them. I bought it all. It was easy to persuade me then, when I had little or no contact with East Jerusalem.

My boss at the time, Meron Benvenisti, who held the municipal planning portfolio, pointed out that these new neighborhoods could lead to profound social upheaval. The contrast between them and the neglected 1948 immigrant neighborhoods would be overwhelming. Could we do anything to resuscitate the old neighborhoods without the expenditure of large sums of government money? He asked me to experiment with the neighborhood of Baka'a. We found that change could take place, even beyond our wildest dreams. We did not need government money. We needed and found ordinary residents who were willing to work for change and invest their sweat in improving their lives and neighborhood.

WAKING UP TO THE FACTS

The success of the Baka'a experiment led Mayor Teddy Kollek to ask me to take over the planning of the Arab neighborhoods in East Jerusalem— another chance to prove that "out of Zion shall go forth the Torah." I gathered around me an international team of experienced planners: Palestinians, a Frenchman, a Dane, and a South African. But the plans we made for Arab neighborhood development were not accepted. At first we thought we were at fault. But soon we had to face the truth. The municipality did not want plans that would enable the Arab neighborhoods to grow and develop. The most we could do was find ways to help individual families who were faced with demolition orders hold onto the homes they had built on their own land where construction was not permitted.

According to the Town Planning and Building Law of Israel (1965), a building permit may be issued by the municipality to a landowner whose property is included in an approved town planning scheme that designates his land for residential use. If a property owner builds on his land without a license, he has committed a criminal offense and his home will be demolished. At the time there were no approved town planning schemes for Arab owned land, and thus all Palestinians were denied the right to use their own property. We flooded the courts with letters saying that Mr. Abu al-Hawa, or whoever, could not get a license today because his land was not planned but that it soon would be planned and in the future he would be able to get a license. The judges, swamped for the first time in their careers with home demolition orders, were pleased to get our letters. Arab applicants streamed to our office. Today, seventeen years later, there is an even larger number of Arab petitioners who cannot get licenses to build their homes. Twenty-one thousand Arab families need new housings and cannot get licenses to build.

How is this possible? In the past seventeen years, since our little team of international planners for East Jerusalem decided to self-destruct, the municipality has managed to prepare and approve plans for thirteen out of the nineteen Arab neighborhoods in East Jerusalem. Why one neighborhood has been selected for planning and another has not is unclear. No explanation has ever been given as to why planning for all or most of the neighborhoods could not start simultaneously or within a period of several years. Every neighborhood feels the critical need to secure a plan that will enable it to use at least some of its land, and neighborhood leaders are careful not to offend the powers that be for fear of losing the privilege of being planned. It is a fear that can be exploited in curbing Arab protest against government planning policy in East Jerusalem.

It takes about three years to prepare and approve a plan for a brand new Jewish neighborhood in East Jerusalem. For an existing Arab neighborhood, it takes an average of ten years, even though the latter plan is simple compared to the former. Indeed, unlike the plans for the Jewish neighborhoods, one Arab neighborhood plan is much like the next. Each is prepared in the same way. There is no research whatsoever into the needs of the residents. Rather, the planner is supplied with a Blue Line that confines the areas to be planned, a quota of new housing units that may be built on the land, and a program for public facilities. (The total number of new housing units that the municipality decides can be built by Palestinians in East Jerusalem has been divided among the existing Arab neighborhoods, with each neighborhood being assigned a "quota" figure.) Thus, each plan is a replica of the one that came before it. The similarity of the plans is all the more remarkable when one considers how different are the characteristics of each site.

Be that as it may, thirteen Arab neighborhoods have been planned. So how is it that the Palestinians still cannot build?

LAND USE DENIAL

First and foremost, the plans include only a tiny portion of the land owned by the Palestinian residents of the neighborhoods. Out of the 70,500 dunams of Palestinian land annexed to Jerusalem in 1967, 25,000 dunams, or more than one-third, has been expropriated for the construction of new Jewish neighborhoods, including Har Homa. More than half of the land the Palestinians still own—that is, the land that has not yet been expropriated— lies outside the boundaries of the approved neighborhood plans. Thus, of the approximately 46,000 dunams of land the Arabs still own, only 23,000 dunams have been planned. That means that half of their land is frozen and cannot be used.

Of the 23,000 dunams of planned Arab-owned land, less than one third, or 7,500 dunams, has been designated as residential land. And since most of the planned residential land has already been developed, only a tiny portion of it is available for constructing new homes. The remaining two-thirds of the "planned land" is designated for "public uses." (In contrast, the ratio in Jewish neighborhoods is 60 percent for residential use and 40 percent for public uses.)

And what are these "public uses" to which 67 percent of planned Palestinian-owned land is dedicated? There are some schools and roads and a few vest-pocket parks, a concept that has been borrowed from the great metropolis of New York City for the benefit of the Arab villages. The rest of the Arab planned land—50 percent of it—is colored a special shade of green that distinguishes it from the shade of green used to map lands for public open space. The special shade of green on Palestinian neighborhood plans indicates that the land must be kept vacant to preserve "open views on the landscape" (shetach nof patuach, which is what the zone is called in Hebrew). The land thus designated cannot be used for construction; it cannot even be used for public open space. Its location and size are entirely arbitrary. No standards have been written that define the character of the land to be included in this land-use category. A review of the Arab neighborhood town planning schemes shows that this zone is used on mountains, valleys, and flat land; on land that is planted and land that is beige and barren; on developed subdivisions and vacant plots; on land from which vistas can be seen and land that has no relationship whatsoever to open vistas. The phrase "open views on the landscape," appealing to the environmentally sensitive, cynically disguises its political purpose of denying Palestinians the right to use their land. Most significantly, this zoning creates large amounts of dead space that can easily be expropriated in the future when the time is ripe to build another new Jewish neighborhood; witness the cancellation of this zone on the planning maps when the government decided to construct Reches Shoafat, parts of Gilo, and Har Homa.

The result of all this is that after thirty years of "benign" Israeli rule, the Palestinians, who owned almost all the 70,500 dunams of land of East Jerusalem annexed in 1967, now have the right to live on less than 10 percent of their land.
 
And what can the Palestinians build on this 10 percent that has been left to them for their residential use? Only the lowest density zones are permitted. Building and height regulations are designed for rural villages, not urban neighborhoods. Issawiyyans, for example, can build up to two stories in height, while next door in French Hill, which was built on land expropriated from Issawiyya, buildings are eight stories high. In Sur Bahar, right next to Har Homa—10 meters away—Arabs can build one or two apartments on each dunam of residential land. Jews in Har Homa will be able to build eight apartments on each dunam of residential land.

The justification for such discriminatory zoning has always been that Palestinians do not like living in high-rise apartment buildings. They want a private house on a private lot. I, too, prefer a private house screened from sight by a private garden. But I must choose the kind of housing that matches my budget. The plans in my neighborhood give me a host of choices, ranging from an expensive private home to a cheap apartment in a high-rise. Palestinians in East Jerusalem have no choices: They must live in private homes even if they are paupers. When given choices in the cities and towns of the West Bank, Palestinians buy up the apartments in Ramallah and alRam, just as Jews do in French Hill and Ramot. Jerusalem Arabs are no different than the Arabs of the West Bank. There is a huge waiting list for the 500 apartments in Shikunei Nusseibeh, the only public housing project built for Arabs in East Jerusalem. Land has become a scarce commodity and planners in Israel are seriously considering eliminating the choice of a private home on a private lot, in the public interest of husbanding a disappearing resource.

Planning and economic development go hand in hand. No industry or commercial development is permitted in the Arab neighborhood plans except along Ramallah Road, where commerce and industry have always existed. The people of Issawiyya, for example, have no commercial zoning in their own neighborhood. They also have only one exit road, to French Hill. They must bank and shop in French Hill. The money they earn from working in Jewish enterprises goes right back into Jewish pockets. The plan for Har Homa dedicates 148 dunams for light industry, commerce, and tourist facilities. Next door, in Sur Bahar and Umm Tuba, not a single dunam has been allotted for these purposes.

Finally, with regard to roads, the planning practice of not connecting Arab neighborhoods to each other but of providing each with an exit connection to a Jewish neighborhood makes each Arab neighborhood an island. A particularly appalling example is Har Homa, where land expropriated from Umm Tuba residents will be used to construct a major new road system serving residents of Har Homa, with no access provided for the Palestinian neighborhoods.

 FOR ARABS ONLY

There are literally a hundred other discriminatory practices that ruthlessly prevent Palestinians from building homes in Jerusalem. There are unjustiably huge charges for building licenses that are imposed only on Arabs. One of my clients just got a bill for 115,000 shekels (almost $35,000) for a license to add a kitchen and a bathroom to his existing house. His house sits on land where construction is not permitted. But his license bill includes a fee of 26,000 shekels ($7,880) for the construction of a sewage system which, of course, will never be built in an area where housing construction is not permitted. The bill also includes a property tax of 76,000 shekels ($23,000). The property tax in Israel aims at encouraging people to develop their property. The tax is imposed as a fine on people who do not develop their property. But Mr. Abu Nijmeh's property is zoned shetach nof patuach, where new construction is not permitted. It is impossible to justify fining Mr. Abu Nijmeh for not doing what the government forbids him to do. Mr. Abu Nijmeh earns 2,500 shekels ($758) a month and supports a wife and nine children. The staggering cost of license bills (in cases where they are even given) is one reason that many people risk resorting to illegal building.

Mr. Abu Nijmeh will soon have to find the money to actually build his kitchen and bathroom. He cannot benefit from any of the loans and grants given for housing construction by the Ministry of Housing because of the small print in the regulations. They stipulate that loans and grants will be given only to property owners whose land is registered in the government's land registry. But land in the Arab neighborhoods of East Jerusalem has not been registered by the government.

And then there is the demolition of illegal houses. According to figures published by the Ministry of the Interior, in the past three years (1993-95, inclusive) 800 illegal structures were built in Jerusalem by Arabs and 957 by Jews. Two hundred twenty of the Arab structures were demolished, or about 25 percent of the illegal Arab construction. Thirty-nine Jewish structures were demolished, or about 4 percent of illegal Jewish construction.

The Israeli government claims that it has no choice but to punish the "scofflaws" in East Jerusalem who build illegally. If only they would ask for a license, the municipality would issue one. The government says it gets about 150 requests from Arabs each year and dutifully supplies them with building licenses. What the municipality does not tell us is that over one thousand Arabs each year ask a special team of Arab civil servants in the city engineer's office for information about the planning regulations that apply to their land. About 150 of them have land where housing construction is permitted. These lucky few apply for and gain building licenses. The others, having been told informally that their land is not zoned for housing, never get into the data bank, allowing the municipality to continue to claim that it issues licenses to all applicants. The unfortunate ones must then decide whether to risk building illegally or continue to live in squalid housing conditions with no hope for a better future. In this context, it should be noted that the municipality issues 3,000 licenses yearly to Jews. In the majority of cases, a building license on a lot in a Jewish neighborhood permits the construction of many units; a license in an Arab neighborhood permits one or two units. The ratio of licenses is one Arab license to every twenty Jewish licenses. However, the ratio of licensed apartments could be as high as one to fifty. And so the housing problems of the Arabs of East Jerusalem worsen steadily, and the government panaceas offered for public consumption provide no solutions.

We have families in East Jerusalem living eleven to a room. The pile of mattresses in each room that will be spread out at night to cover every square meter of space looks like the scene in any refugee camp. A study undertaken of the living conditions of Issawiyyan families whose new homes have been demolished shows that they now live with an average of 3 to 5 sq.. m. of gross space per person. The national standard for low-income public housing in Israel is 20 sq. m. of gross space per person.

From 1967 to the end of 1994, the population of Jerusalem has grown by 204,200 Jewish residents. Their housing stock—over two-thirds of which was built by the government—has increased by 64,880 units, or one new unit for every 3.15 new Jewish residents. In the same period, the Arab population increased by 96,300 and their housing stock—none of it built by the government—has increased by 8,800 units, or one new unit for every 10.9 new Arab residents. Of the Jewish population of Jerusalem, 87.5 percent live in housing conditions of one or fewer persons per room, whereas only 33.4 percent of the Arabs live in such conditions. At the other end of the scale, only 2.7 percent of the Jews live in conditions of three or more persons per room, whereas almost a third of the Arabs—32.2 percent—live in such conditions. These dry facts are lifted from the Jerusalem Statistical Yearbook, published by the municipality, and are available to all decision makers.

HAR HOMA FOR THE PALESTINIANS

Based on the concept that government should build housing for those who need it most, the residents of Umm Tuba and Bayt Sahur, whose land had been expropriated for the construction of Har Homa, presented a suit before the High Court in 1996, asking that the new neighborhood be allocated for Arab housing. At that time, the High Court ruled that the suit was premature on the grounds that no official decision had yet been made about whether Jews or Arabs would inhabit the new neighborhood. (No decision, of course, was necessary: The plan, with its high-density housing and land dedicated for synagogue construction, was clearly intended for Jews.) At all events, now that the decision is formal, the landowners have resubmitted their suit to the High Court. They have been joined by three Knesset members from Meretz, a Zionist political party dedicated to peace and civil rights.

The High Court has decided to postpone its decision for two months to enable the government to prepare a realistic plan for the construction of Arab housing. There was never the slightest pretense that the construction of Har Homa was meant to solve the housing problems either of Arabs or Jews. There was a feeble attempt to explain that more than two-thirds of the land expropriated for Har Homa had been owned by Jews and that it was therefore justified to use the land for Jewish housing. However, the bulk of the 25,000 dunams of land expropriated in East Jerusalem since 1967 had been owned by Palestinians, and not a single housing unit for Arabs was built on it. Who owns the land has never determined who reaps the material benefits from its use.

Government in a democratic society should be able to show that the planned distribution of the community's resources is relatively equitable. It is rarely if ever possible to have completely equitable distribution—some groups get more "goodies," others less. In order to withstand criticism from groups or individuals who are getting less or who are actually harmed by city planning, the government must be able to prove that the plan provides citywide benefits available to everyone, even if the payment for them is unbalanced—that is, heavier for some groups than for others. Through the skillful use of slogans ("the eternal undivided capital"), advertising ("Keep Jerusalem Open and Green"), public events that dramatize the desired point of view ("Jerusalem 3000"), and promoting organizations with influential constituencies, the Israeli government has succeeded in building a broad based consensus among Israeli Jews for its planning policy in East Jerusalem. I would like to believe that the lack of opposition on the part of most Israelis stems mainly from the fact that no similar public relations campaign has informed people that the critical element of democratic city planning—the relatively equitable distribution of community resources—has been crushed to make way for the "new" Jerusalem. In fact, one group is getting all of the public benefits from the plan, and the other group is paying for them. The Israelis are getting what they believe to be their model city, and the Palestinians are "contributing" the resources for it—their land.

To sweeten the government decision to build 6,500 new homes for Jews in Har Homa, Prime Minister Benjamin Netanyahu and Jerusalem Mayor Ehud Olmert announced that they would build 3,000 new homes for Arabs. If true, this would be a 360-degree turnabout in government policy: Since 1967 not a single Palestinian home has been built on expropriated land in East Jerusalem, while more than 40,000 new units for Jews have been built on such land. Even assuming a change of policy, the government cannot possibly build even a single Arab unit since the only vacant land it owns in East Jerusalem is the land it expropriated for the construction of Har Homa and bits and pieces of leftover expropriated land on the perimeters of other new Jewish neighborhoods.

If Mr. Netanyahu and Mr. Olmert really want to repair the crushing Arab housing shortage, they should allow the Palestinians to build their own homes by preparing neighborhood plans that include all the land that the Arabs own. They should change the zoning in the Arab plans to match the zoning in the Jewish plans. They should plan roads that connect Arab neighborhoods to one another so that they will not continue to be dependent only on Jewish Jerusalem. They should zone land in existing Palestinian neighborhood town planning schemes for commerce and industry, letting Arabs, as well as Jews, open shops and factories. Higher density zoning would not only relieve a critical housing shortage but encourage the development of an Arab housing industry. Palestinian contractors and their workers would have an economic incentive to build for their own people, as they currently do for Jews. A house on a lot zoning puts the entire burden of the infrastructure (roads and sewage) on one family. With high-density zoning, infrastructure costs would be shared by a number of families living in the same building, as it is in Jewish neighborhoods. If the discriminatory practices were lifted, the Palestinians could build for themselves far more than the 3,000 housing units promised to them by the prime minister and the mayor. Perhaps that is exactly why these planning policies and regulations will not be abolished.

Har Homa does not yield planning benefits, but it does yield political benefits. This point was clarified by the city engineer, Uri teen Asher, the highest ranking establishment planner in the municipality. On a video recording he said, "Har Homa is an isolated area, unrelated to any other part of the city. Political goals rather than professional planning concerns dictate city development to secure a Jewish majority by planting Jewish neighborhoods in the most important strategic locations." He claimed that he had warned the mayor that building Har Homa would create yet another poverty enclave on the outskirts of the city. He claimed that the mayor understood this warning but could not heed it. Planning principles must be sacrificed to achieve political aims.

A Jewish neighborhood on this mountain will insinuate a new and jarring theme into an otherwise Palestinian area. But not for long. The 6,500 Jewish families that will eventually live there will not be allowed to remain isolated. The lands to the west of Har Homa will in short order be expropriated as well to link up with the Jewish neighborhood of Gilo. More homes will be built and more Jewish families will be brought in. The buildings of Gilo were designed to form an unbroken wall of stone. So will the buildings of Har Homa, a Hebrew phrase that indeed means "walled mountain." A continuous wall of stone along the southern perimeter of Jerusalem will physically and psychologically separate the Palestinians in East Jerusalem from their hinterland in the West Bank.

The tensions that have been aroused by Israel's unilateral decision to build a new Jewish neighborhood on Jabal Abu Ghunaym may prevent any discussion of the final status of Jerusalem. The hope for a decision on the final status is receding rapidly. And yet only a negotiated decision on how Palestinians and Israelis will share this city equally can prevent this Har Homa and all the other Har Homas to come as a result of the land policy outlined in this article. That decision must grant equal responsibility for planning, growth, and development—the ultimate of sovereign powers—as a function to be shared by Palestinians and Israelis. If we already had a city of shared sovereignty, the decision about whether to develop Har Homa, and for whom, would be made by Palestinians and Israelis working through a joint political process that both parties subscribe to. Hopefully, they would ask themselves who really needs the housing on Har Homa and decide accordingly. Israel, which shares none of its sovereign powers with anyone else, still has the time—and the moral responsibility—to ask itself this question.