50 years on: It’s time to apply the law

Although 50 years have passed since the liberation of Judea and Samaria, the legal status of the hundreds of thousands of Jews living there has not yet been settled. We have become accustomed to living with this absurd reality, but it has not become easier over the years. This is because when the Israeli government acts indecisively and hesitates to establish irreversible principles, external forces try to intervene and determine what the State of Israel may and may not be do. The existing legal governing standards are a patchwork stitched together from an assortment of legal systems (including Ottoman, British, and Jordanian), creating ample opportunity for outdated legal models  to be interpreted creatively, for the attorney-general to have unreasonable amount of influence and the international community and to involve themselves in domestic land use rulings.

The State of Israel established two committees to resolve this situation. The first was appointed by then Prime Minister Ariel Sharon and headed by Talia Sasson, a senior attorney in the attorney-general’s office. She led her committee in a manifestly anti-Zionist direction.  If there is any doubt as to her leftist politics, her subsequent appointment as chair of the New Israel Fund after she retired from public service should lay them to rest.

A second committee was appointed by Prime Minister Benjamin Netanyahu and headed by the retired Supreme Court Justice Edmond Levy. The other two members were District Court Judge Miriam Shapira and legal adviser to the Foreign Ministry and  international law expert, Ambassador Alan Baker. The Edmund Levy committee — officially called Report on the Legal Status of Building in Judea and Samaria — was designed to address the legal situation without the tinge of self-critical politics.

While the Talia Sasson Report endeavored to come up with legal tools to demolish settlements and outposts, the Edmond Levy Report presented the legal precedent to formalize the existing situation. It offered legal grounds based on international law that  established the land of Judea and Samaria as Israeli; designate the State of Israel as its the legal owner for the benefit of its citizens; and of course, validate Jewish settlement there.

The Edmond Levy report does not consider the Israeli settlers robbers or thieves, but rather views them as Israeli citizens who came to live in Judea and Samaria in good faith on behalf of the Israeli government. As the current situation stands, the half million Israeli citizens living in Judea and Samaria are being treated like the stepchildren of the State of Israel. The legal treatment they receive is akin to that given to invaders and occupiers, and the manner in which the rules of Israeli real estate law are applied there derives from this.

This anomalous situation has produced countless legal inventions. All the rules of land registration, possession and use, statutes of limitation, proof of ownership and much more have been reengineered by the attorneys of the Civil Administration and justices of the High Court especially for this region. The politicians dithered and the legalists stepped in.

Over the years, the topic of Judea and Samaria has become a playground for legal advisers who have contrived and concocted a unique conceptual world based on user experience that is not grounded in Israeli law, or in many cases, even in international law. This is land that had no state ownership whatsoever, and only after it was captured by Israel were its residents turned into a quasi-statutory authority.

This bizarre legal situation opens the door to conflicting legal models that more often than not are based on political outlooks. As it happens, this legal approach, which has persisted in the region for years, has led to the legal abuse of the Jewish residents of Judea and Samaria. This mistreatment of the Jewish residents has worsened over the years, leading to absurd cases such as Migron, Amona, Derech Ha’avot, etc.

For the vast majority of the land involved in these cases, no proven Arab ownership has been shown, and for the tiny proportion about which there may be some doubt, and which under normal circumstances would be resolved with monetary compensation, the courts rule that homes or entire communities should be demolished. This heavy handed policy is even applied in cases when truly arcane lands are involved for which not only is there no proven ownership, nor is there any feasibility that Arabs will ever live on the land after the demolition. It is destruction for the sake of destruction.

The solution offered by the Regulation Law would be yet another patchwork quilt. If we seek a comprehensive solution for all the extreme leftist provocations against the re-settlement of Judea and Samaria, which are received favorably by the Supreme Court, it is imperative that we adopt the Edmond Levy Report.

The Edmond Levy Report is a far more comprehensive and detailed report than that of Talia Sasson. Furthermore, it was prepared by a team of jurists, each of whom was more high-ranking and experienced than her. The absurdity is that the Levy Report has been left to gather dust. The State Prosecutor’s Office — in its capacity as the representative of the State — has never made reference to the Levy report in its responses to the High Court of Justice. Instead of the government making it the guiding and deciding report, or at the very least refraining from making decisions or carrying out governmental actions that conflict with its guiding principles, it occasionally borrows a paragraph or two from it.

The adoption of the Edmond Levy report will create legal clarity, both for the benefit of the Jewish settlers and the Arabs, whose legal status will also be clearly defined. This clarity also has the potential to create a de facto permanent status agreement. When the State of Israel shows that it is determined in its position, we can be assured that the Arabs will also align their aspirations with it.

While there remains a need to supplement the Levy Report both in terms of the specific implementation of its guiding principles as well as in regard to issues that the committee did not have time to address, the basic legal principles are all there. All that remains for the “most right-wing government in Israel’s history” to take the report off the shelf, dust it down and put it to work.