By Tuesday, 50 Israeli families will have been tossed out of their homes in
their village of Migron, which is set for destruction.
They will not be
dispossessed because they unlawfully squatted on someone else’s
The residents of Migron will be tossed from their homes – on
the order of the Supreme Court – because Attorney-General Yehuda Weinstein and
his associates believe they are above the law. And due to this opinion,
Weinstein and his associates refuse to recognize the sovereign authority of
Israel’s government or to act in accordance with its lawful
The media have alternatively presented the story of Migron’s
imminent destruction as a story about a power struggle between so-called
settlers and the IDF, whose forces will be called upon to eject them from their
homes; or as a struggle between the Israeli residents of Judea and Samaria and
Prime Minister Binyamin Netanyahu; or as a struggle between the radical leftists
from Peace Now and its fellow foreign government-financed NGOs, and the
residents of Judea and Samaria.
These portrayals are reasonable on the
narrow level of day to day developments in the story of Migron’s struggle. But
on a more fundamental level, the story of Migron and its pending destruction is
the story of the power struggle between Israel’s unelected, radical legal
fraternity represented by the attorney-general, the State Prosecution he directs
and the Supreme Court on the one hand, and Israel’s elected governments – from
the Right and from the Left – on the other.
Migron is the latest casualty
of this struggle. The legal fraternity’s bid to wrest sovereign power of
governance from Israel’s elected leadership threatens our democracy. In its
continuous assault on governing authority, the legal fraternity renders it
difficult if not, as a practical matter, impossible, for the government – any
government – to govern.
It is important at the outset to recognize that
there is a world of difference between the rule of law and the rule of lawyers.
The fate of Migron, which was sealed on Wednesday with the decision of the
Supreme Court, sitting as the High Court of Justice, to remove all 50 families
from their homes, is a legal atrocity.
Migron was founded in 1999 on 60
plots of land. In 2006, the EU-funded Peace Now petitioned the High Court
claiming to represent Arab owners of five out of the 60 plots of land. Peace Now
asked the court to require the state to explain why it hadn’t destroyed the
town, which the group claimed was built on stolen land. Migron’s
residents dispute this claim.
In responding to this petition, the State
Attorney’s Office could have asked the court to allow the issue of ownership to
be adjudicated by a lower court. Instead, the State Prosecution accepted as fact
Peace Now’s unproven claim of private ownership of the land. And, after numerous
delays, in 2011 the court ruled that the village must be
Following its victory in the Supreme Court, Peace Now sued the
state for damages for the alleged Arab landlords, claiming that the presence of
the community prevented the land’s owners from harvesting nonexistent olive
trees. Peace Now abruptly canceled its lawsuit when the court asked for proof of
For their part, Migron’s residents went through Jordanian land
records and were able to find owners for only seven of the registered plots. And
they managed to buy – at exorbitant cost – three of those plots. Recognizing
that its claim that Migron was illegally built on private lands could no longer
be justified, Peace Now changed its strategy. In the latest Supreme Court
hearings, brought by Migron’s residents, Peace Now claimed that the reason all
the Israelis need to be ejected from their homes, and all the homes need to be
destroyed, is that the village was built without proper permits.
the court hearing last month, the government’s Ministerial Committee on
Settlement convened to determine the government’s position on the new Migron
petition. Led by Netanyahu, the ministers decided that the government’s position
was to ask for a continuance in order to enable the lower courts to adjudicate
the claims of ownership of the land.
Rather than follow the law and
represent that position to the court, Weinstein instructed attorney Osnat Mandel
from the State Prosecution to inform the court he did not accept the
government’s decision, and ask for a continuance in order to give him time to
force the government to change its position.
Addressing the court, Mandel
said, “The attorney- general believes that the ministerial committee’s position
will raise legal difficulties. And since we’re requesting a continuance for
undertaking the evacuation anyway [for unrelated reasons], he requests [time] to
hold meetings with the elected leadership.”
On the face of it,
Weinstein’s defiance of a legally binding government decision was unlawful.
Certainly it would appear to be grounds for his immediate firing. But while
shocking, Weinstein’s rank insubordination was not unique.
As relates to
Israel’s legal rights in Judea and Samaria, Weinstein is guided not by the law
but by the ideology of the far Left. This ideology received formal expression in
a 2005 report on unauthorized Israeli communities in Judea and Samaria authored
by former assistant state attorney Talia Sasson. The Sasson Report represented a
wholesale renunciation of all Israeli claims to legal rights over Judea and
Samaria. It was unhinged from both Israeli and international law. And it
was embraced by the legal fraternity. After Sasson finished her report,
she joined the post-Zionist Meretz Party. In 2009 she ran unsuccessfully for
In an attempt to mitigate the damage Sasson’s report caused to
Israel’s legal position in Judea and Samaria, in February Netanyahu commissioned
retired Supreme Court justice Edmond Levy to lead a task force of distinguished
jurists and present the government with a report setting out Israel’s legal
rights to Judea and Samaria. Netanyahu asked Levy to also offer
recommendations for implementing those rights in relation to the Jewish
communities in Judea and Samaria.
Weinstein didn’t even wait for the Levy
Commission to begin its work before he sent Netanyahu a letter informing him
that the commission’s report would have no impact on his handling of issues
related to Israel’s rights to the areas. And as his decision to ignore the
legally constituted ministerial committee’s position on Migron made clear,
Weinstein continues to behave as though he and his colleagues sit above Israel’s
democratically elected representatives.
Many on the Right are urging
Netanyahu to adopt the findings of the Levy Commission as official government
policy. While such a move certainly can’t hurt, it is hard to see what
difference it would make in practice. Weinstein has already pledged to defy the
government. So even if the report is adopted, the government’s lawyers will
refuse to defend its positions.
Weinstein is only able to behave as he
does because he operates in an environment where the Supreme Court has usurped
the power of Israel’s elected governments to determine state policy.
the same time that then-Supreme Court president Aharon Barak declared that
“everything is justiciable,” the court gutted the requirement for legal
standing. It has worked hand in glove with radical groups like Peace Now to
dictate government policy. Through this collaboration, the court – not the
government – determines Israel’s policies on everything from Israel’s legal
position in Judea and Samaria to environmental issues, to the nature of Israel’s
penal system, to homosexual unions, to education policy, to permissible military
tactics in wartime.
In this environment of judicial tyranny, Weinstein
can freely undercut governmental authority, because he knows that so long as his
breach of trust pushes government policy to the Left, the Supreme Court will
support his unlawful actions.
Aside from Migron, the most striking
example of the legal fraternity’s recent collaboration to undercut governmental
authority was its torpedoing of the government’s February 2011 appointment of
Maj.-Gen. Yoav Galant to serve as the IDF chief of staff. At the time, the court
agreed to hear a petition submitted by the Green Movement demanding the
cancellation of Galant’s appointment.
The Green Movement claimed Galant was
unfit to lead the military because in the past he had committed an
administrative infraction by wrongfully using state land adjacent to his
homestead on Moshav Amikam. The Green Movement had no direct interest in
Galant’s administrative infraction and therefore, if the Supreme Court followed
even the lowest standards for standing, it should never have received a
Even with the forbearance of the court, the Green Movement’s
ability to win the case was dubious at best. The Senior Appointments Committee
had already vetted Galant’s candidacy, and approved it despite his misuse of
state lands. But Weinstein had other plans.
Claiming he had “ethical
difficulties” defending Galant’s lawful appointment, Weinstein refused to defend
the government before the Supreme Court. Consequently, Weinstein compelled the
government to force Galant to resign his commission and appoint someone else to
serve as the IDF’s top commander.
Netanyahu has come under sharp
criticism, particularly from his voters, for his refusal to stand up to
Weinstein and his band of legal despots. And this makes sense. Netanyahu should
have stood up to Weinstein in defense of Galant. And he should have denounced
Weinstein last month for his unlawful defiance of the government on Migron. He
should also stand up to Weinstein on the Levy Commission report, and just as a
matter of policy, adopt its findings as the formal position of Israel’s
But even if he does these things, all they would serve to do
is temporarily mitigate the frustration of his voters. They wouldn’t change the
basic calculus of power. The fact is that today Netanyahu lacks the means to
curb the legal fraternity’s abuse of power.
The media staunchly defend
every move the legal fraternity takes to usurp the powers of the government and
the Knesset. Indeed, the media represents the legal brotherhood’s unlawful moves
as supreme acts of selflessness on behalf of Israeli democracy and the rule of
Every potentially powerful critic of their behavior has found
himself the subject of protracted criminal probes. This includes Netanyahu
during his first term, Foreign Minister Avigdor Liberman for the past decade,
former justice ministers Tzachi Hanegbi and Haim Ramon, and Justice Minister
Yaakov Neeman during his first tenure in office.
residents of Migron are just the latest casualties of the legal fraternity’s
campaign to force its radical agenda on an unwilling electorate. If we
wish to save Israel’s democratic system, the people of this country must stand
up and demand that our representatives protect our right to be governed by those
whom we elect and not by self-appointed clerks.
The only suitable
response to Migron is a legislative overhaul of Israel’s legal