The ‘objective truth’ in the strange case of Migron

Sara Hirschorn, in her recent op-ed in The Times of Israel, “Who Has the Monopoly on Truth at Migron?” challenged my article “Something is Rotten in the State of Israel: The Strange Case of Migron,” which criticized Israel’s Supreme Court’s recent decisions regarding Migron. While she is certainly entitled to disagree with me, her article missed the point.

Sara’s main contention follows the argument of the late history professor Peter Novick of the University of Chicago that there is no objective truth. However, whether or not, objectively or subjectively, this is true or even makes sense – it is not relevant.

By definition, in a court of law the truth is determined by accepted procedures applying to evidence. In the case of Migron, the Peace Now lawyers represented Palestinian Arabs who were purported to be the registered owners of the land upon which Migron is built. The court of law that dealt with validating or rejecting the plaintiffs’ claim was the Jerusalem Magistrate’s Court.

In that case, the Arab plaintiffs who claimed to be the owners of what is actually only one quarter of the land upon which Migron was built were unable to produce evidence to prove their claim. In fact, Migron’s lawyer at the time, now-Supreme Court Justice Hanan Melcer, proved that their claims were false, and in fact, the Peace Now lawyers of said plaintiffs subsequently withdrew their case.

Again, this did not stop Peace Now from pursuing their legally baseless petition in the Supreme Court. Justice Melcer,in his written response to the Peace Now petition to the Supreme Court wrote:

The picture the plaintiffs are presenting is simplistic, incomplete and inaccurate. The land in question is vacant and rocky that has never been worked upon, and was never used by the plaintiffs for the last several decades.

Melcer also challenged Peace Now’s veracity:

The presentation of the facts in this petition is tendentious, selective and inaccurate and indicates a lack of innocence [on the part of Peace Now]… There is no doubt that the nature of the issues focused upon in the petition is not legal, but rather political, and is not judicable, whereas Peace Now [by its petition] abuses the legal process.

My contention that Migron was built “at the encouragement of the IDF at the time” is modest compared to what Mr. Melcer wrote. He noted that ministers of defense and the IDF both supported the establishment of Migron because of its key strategic location. Then-defense minister Binyamin Ben-Eliezer (Labor) declared that Migron would not be evacuated, and then-prime minister Ariel Sharon also supported Migron. Moreover, Melcer maintained, most of the land upon which Migron was built had already been bought and paid for in full by the residents of Migron, and therefore he rejected the claim that Migron is on privately owned Palestinian Arab land.

Sara in essence agrees and admits: “In truth, the Palestinian land claim to the plot of Migron is tendentious,” but attempts to muddy the waters, nonetheless claiming:

Atlas ignores the complexity of the 400-year-old legal history of land tenure in the Jerusalem district beginning with the Ottoman territorial register, and its evolution under the British Mandate and the state of Israel.

The answer is, of course, that neither I nor Migron’s lawyer, now a Supreme Court Justice, “ignored” any “complexity” because this case is not complex. It is not objective or subjective truth at stake; it is truth or falsity. The Peace Now-supplied and -represented Palestinian plaintiffs had no legal case because they could not prove they were the owners of the contested land. Moreover, Peace Now could not produce any alternative plaintiffs with court-validated documentation of ownership.

Hence, the fact that then Chief Justice Dorit Beinisch ignored the very core issue of a lack of documented land ownership by the Palestinian Arab plaintiffs represented in Peace Now’s petition, rejected Melcer’s meticulous rebuttal, and summarily ruled to displace 50 Jewish families nonetheless, sort of strongly hints “that political correctness has made a mockery of justice,” and that Ms. Beinisch’s ruling, unfortunately, “characterizes the Supreme Court as a branch of government operating with ‘open political bias.’” These are facts, Sara; not subjective musings.

Your digression into a discussion that “Of course, the Israeli settler movement — and the broader Zionist project since the pre-state period — has long had a problematic relationship with objective reality” is simply more muddying of the waters. Yes, Gush Emunim followed the ideological methodology of Kibbutz Hanita, for example, which was founded in 1938 to establish a settlement beachhead to extend the Jewish presence in the North despite serious opposition from leaders of Jewish Zionist establishment organizations in Tel Aviv, and “create facts on the ground” in Judea and Samaria. But that has nothing to do with the documented bias of the Supreme Court that can apparently ignore contrary evidence when it suits the political viewpoint of the activist judge in question, i.e.: Hon. Dorit Beinisch.

Obviously we have differing political viewpoints – your use of the term “occupied territories” and “West Bank,” while I call them by their historical name “Judea and Samaria,” not to mention your completely subjective declaration that “There is no objective truth in the Israeli-Palestinian conflict — each side makes its historical and moral claims to the best of its abilities.” But that should not be relevant to our discussion about the accuracy of my contentions about the case of Migron in the Supreme Court.

This is not a case of subjective versus the objective in determining a philosophical or historical truth. It is a simple matter, sadly, of fact versus fiction. The Supreme Court refused to wait until the Magistrate’s Court ruled and then, when Peace Now’s lawyers withdrew their case in the lower court due to lack of evidence, the Supreme Court still ruled in favor of Peace Now’s petition — without documented evidence to prove Peace Now’s case. Any rational outside observer of these legal proceedings would easily conclude that the strange case of Migron indeed does show that something is rotten in the State of Israel.