The outpost and the rule of law

Last Friday the state requested that the High Court of Justice put off by 90 days the demolition of five houses in the Ulpana outpost in Beit El that were built on private Palestinian land.

Just over a year ago the court ruled that the houses should be demolished by May 1, 2012.

The government, which did not deny that the houses had been built on private Palestinian land, accepted the court’s ruling. However, in the past year it did nothing to implement it. As has happened many times in the past, the government acted in accordance with the famous Jewish story about the Polish nobleman and the horse, in which inaction was justified with the expectation that before long “either the nobleman or the horse will die.”

But both the nobleman and the horse are still around and kicking. Now, it is said, the government is not really seeking a delay, but rather more time to come up with “a creative solution” that will prevent the demolition of the houses. Why? Because Netanyahu does not want to anger his fellow Likudniks in what will certainly be an election year. At what price? The rule of law. In other words, the rule of law is being subordinated to politics in the most cynical manner.

The Ulpana affair is in fact a symptom of a much broader and fundamental issue – Jewish settlement in Judea and Samaria since the Six Day War. Systematic Jewish settlement activities in the West Bank were slow to get under way. Though some settlement activity occurred under Labor Alignment governments, the Gush Emunim settlement movement was established only in 1974, and settlement in the territories turned into a central policy goal only after the Likud took power in 1977.

Though the international community has consistently argued that the West Bank is occupied territory to which the Fourth Geneva Convention applies, the legal status of Judea and Samaria is complex, and there has been no final legal ruling on the issue.

Until 1948 the West Bank was part of the British Mandate for Palestine. According to the 1947 UN partition plan, it was to have formed part of the Arab state that was to have been established in Palestine side by side with the Jewish state. The Palestinian Arab state was never established, and with Israeli acquiescence the West Bank was occupied and later annexed by King Abdullah to the Kingdom of Jordan.

Only four states recognized this annexation.

After Israel occupied (or liberated) the West Bank in 1967, it took no measures to annex it (short of east Jerusalem) to Israel, and Israel’s official position was that it was waiting for the Arabs to come and negotiate a permanent settlement.

The Arab response was the Khartoum Arab Summit Conference of August 1967 that declared the three nays: no peace with Israel, no recognition of Israel and no negotiations with Israel. This Arab policy persisted for a decade, and in the meantime facts started to be created by Israel on the ground, despite a growing ideological rift on the issue among the Israeli public.

Despite the Oslo Accords of September 1993, and Netanyahu’s acceptance of the two-state principle in June 2009, new settlement activities – both official and unofficial, legal and illegal – accelerated, paying no heed to the fact that Israel had accepted the principle that eventually a viable Palestinian state would have to be delineated.

On the question of what is legal and what is illegal when it comes to Jewish settlement in Judea and Samaria there is no agreement in Israel, and the spectrum of opinions stretches from viewing all Jewish settlement in the occupied territories as illegal to considering all Jewish settlement in the liberated territories as ordained by God. The majority appears to believe in the Jewish right to settle in the whole of Eretz Yisrael, but to accept the limitations imposed by realpolitik and recognition of basic Palestinian rights, including that of land ownership.

Where the State of Israel has erred over the years has been in turning a blind eye to the construction of Jewish settlements on private Palestinian land, which was simply confiscated, robbed or “purchased” from individuals who did not own it.

Those who trusted that the government knew what it was doing when it allowed their homes to be constructed on private Palestinian land are no less to blame, though it is they who are now being asked to pay the price.

The government’s decision to continue to avoid confronting this problem head on, and its current attempt to overturn the rule of law for the sake of immediate political interests, is not only infuriating, but cause for real concern in a situation where many members of the coalition are in any case contemptuous of the democratic principles on which the Israeli legal system is based.

The writer teaches at the Max Stern Jezreel Valley College and was a Knesset employee for many years.