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Amona and Israel’s hobbled sovereignty

Political leaders, not High Court judges, must decide the fate of Jewish communities in Judea and Samaria

The destruction of fifty-one Jewish homes in Ofra and Amona in February by order of the High Court raises questions about Israel’s claim to be “the nation-state of the Jewish people.” The evictions made no sense, and, although Prime Minister Netanyahu signed an agreement on behalf of the government with the residents of Amona to provide alternative housing in a new community, he has failed to honor his commitment. The families remain in distress, helpless and homeless.

Absurdly, this destruction and others served no one. Jews were traumatized; Arabs can’t use the land for security reasons and because they cannot prove ownership; most Israelis perceived it as a national disgrace; it alienated many and undermined trust in the High Court and the government; and it wasted money and resources. No one benefited!

Although Jews were accused of building on “private Palestinian land,” the question of who owned the land was never heard by an Israeli civilian court. No valid proof of ownership was presented. The destruction, moreover, violated the law in Israel and all other democratic countries: someone who has built in good faith on land which he/she later discovers belongs to someone else is entitled to pay compensation to the legal owner when the value of the building is worth more than the land.

Touted as “the rule of law,” the destruction was intended to demonstrate the power of the High Court regardless of any government decision, or legal issue. The High Court’s decision was meant as a clear political message to the government: it, not the government, would decide the fate of Jewish communities in Judea and Samaria, “the settlements.” The High Court’s assertion, therefore, challenges the basis of Israeli democracy, the role of its judiciary, and its definition as the nation-state of the Jewish people.

The struggle over that definition arose in 2011, when MK Avi Dichter proposed a Basic Law: “Israel as the nation-state of the Jewish people.” The purpose of his bill was to codify the nature and values of Israel as a Jewish and democratic state and to prevent Israel from becoming a binational state. Although supported by the government coalition, including PM Netanyahu and opposition MKs, it did not pass a preliminary reading.

Nation-states, however, are more than national cultures; they are primarily responsible for expressing sovereignty, protecting their citizens, and establishing and defending its borders. In Israel’s case, the status of Judea and Samaria, and especially Area C in which Jewish communities exist, is still in question. Since Israel gave up Areas A and B to the Palestinian Authority and the Gaza Strip to Hamas, only Area C remains under IDF military occupation. Because Israel has refused to extend its laws to this area, the question persists: are settlements part of Israel, or not?

Although Jews living in settlements are citizens — they pay taxes, serve in the army, and are required to follow Israeli laws — in disputes over land ownership they are subject to the IDF’s judicial administration and have no access to civilian courts. When Arabs or NGOs petition the High Court claiming that Jews have built on privately-owned land, there is no way to examine or challenge the evidence or High Court decisions, since those decisions are final. The system is rigged.

In the absence of a decision by the government, the vacuum is filled by the IDF and the High Court – core institutions of the State wielding absolute power, but unelected and unaccountable – and therefore not part of Israel’s democratic system.

Israel’s failure to declare sovereignty over what is historically and legally part of the Jewish homeland and define its territorial integrity is increasingly untenable and unrealistic. The government’s ambiguity is confusing and misleading. Israel’s failure to establish a coherent policy regarding Judea and Samaria simply empowers its enemies and cripples its ability to defend itself. Either Area C belongs to Israel, or to a Palestinian state.

Israel’s claims to Area C, moreover, are challenged not only by its enemies, but by institutions of the State itself: the Ministry of Defense, the Military Advocate General (Praklitut HaTzva’it) and Civil Administration (Minhal Ezrachi). Assisted by the High Court, they have attacked the ideology of the settlement movement and seek to restrict settlement building.

The bizarre reasoning behind such evictions and destruction is that Jordan’s land distribution program during its illegal occupation is valid. This assertion has never been tested in an Israeli court. As long as institutions of the State follow Jordanian law and destroy Jewish homes and communities because of allegations that they were built on “private Palestinian land,” without valid proof of ownership, Israel undermines its claims and legitimizes its critics, such as the BDS movement.

Despite media reports, however, the issue is not a legal one over who owns the land. The question of land ownership in such cases was tested only once, in 2012, after Migron was destroyed. Arab claimants applied for compensation in the Magistrate’s Court, but their claim was rejected and they were fined for filing a false petition when they could not prove ownership. The hilltop on which Migron was built remains empty and the High Court refuses to reconsider its decision.

Using its legal powers to determine political policies, the IDF’s judicial arm in Area C and the High Court have usurped the role of the government and thereby undermine Israeli democracy. Land belonging to the Jewish people was stolen by the Jordanian government and given away to Arabs. Is that legitimate?

The only way to change this distorted system is through legislation and by adopting the recommendations of the Edmund Levy Commission: a clear, unequivocal statement of Israel’s legal and historical rights, and instituting special courts to determine issues of land ownership. PM Netanyahu’s refusal to accept the Levy Report prevents any just and comprehensive resolution of the problem.

Declaring sovereignty and extending Israel’s legal system to Area C of Judea and Samaria would strengthen Israeli democracy and Israel’s judicial system. It would protect Jewish communities, allow for economic development in the area and end the confusion about its future. It would be a most appropriate way of celebrating the fiftieth anniversary of Jerusalem Day, and of honoring those who gave their lives for this tremendous accomplishment. We dare not take that for granted.

About the Author
Dr. Moshe Dann is a historian, writer, and journalist. He lives in Jerusalem.
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