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Attorney Talia Sasson has learned to be cautious. Thus, Acting Prime Minister Ehud Olmert's pledge to dismantle illegal outposts - during his speech at the Interdisciplinary Center-sponsored Herzliya Conference - made her only moderately optimistic.
"His statements were encouraging," she told The Jerusalem Post. But their significance, she said, will be determined by the action that follows.
In the 10 months since Sasson completed an in-depth report for the government showing that 105 of the outposts are illegal, the government has failed to remove any of them, according to Peace Now, which has heralded her findings and used them to appeal to the courts for action.
Sasson said that since the report was issued, only one change has been made in the law to combat illegal construction.
In addition to addressing the legality of existing outposts, Sasson said, the report examined breaches in the law governing Israeli conduct in the administered territories. It also dealt with improper administrative actions by government and other public officials that made illegal development possible, and proposed steps that could be taken to prevent such activity in the future.
With respect to these proposed steps, she said, "nothing has been done."
Sasson, who served as director of the Department for Special Projects in the State Attorney's Office from 1996 to 2004, was commissioned by Prime Minister Ariel Sharon to compile the report, after leaving her post for the private sector.
According to Sasson, the facts presented in the report are not disputed by the government. Nor, she claimed, is the report agenda-based - from the Left or the Right - or focused on the legitimacy of Israel's presence in the territories. The real issue here, she said, is the rule of law in Israel, and the threat posed to democracy when laws are not abided by or enforced.
What has happened to the report on the illegal outposts that you submitted on March 9, 2005?
According to the cabinet decision, a number of matters were handed over for further action to a ministerial committee established for that purpose. Some matters were not transferred to the ministerial committee, such as the reforms I recommended in security legislation in the administered territories. The military authorities were to have considered these recommendations together with the Ministry of Justice and presented their findings to the ministerial committee.
Justice Minister Tzipi Livni was appointed to head the ministerial committee, which was instructed to present its recommendations to the government by mid-August. But the disengagement from Gaza took place in mid-August, and since then, I do not know of anything that was done.
Were there no recommendations?
No, there were not. What was supposed to happen did not happen.
Are you still in touch with the committee?
No, the committee, as far as I know, no longer exists. Most of the ministers have meanwhile resigned from the cabinet. The committee included ministers from the Likud and Labor.
Sasson first talked about some of her recommendations for changes in military law applying to the West Bank. She explained that in accordance with international law regarding belligerent occupancy, it is the military commander who passes laws, called orders, in the occupied territories. The orders that Sasson recommended were meant to fill the gaps that allegedly prevent effective law enforcement against the construction of illegal outposts. So far, the military commander has issued only one new order based on Sasson's recommendations. The order empowers Israeli magistrate's courts in the West Bank, which were originally established to deal with the internal affairs of the local Jewish authorities, to hear state indictments for acts considered to be illegal according to Jordanian law but over which the Israeli magistrate's court in the territories did not have jurisdiction in the past. She gave the following example.
You first talked about some of your recommendations for changes in military law applying to the West Bank. What does this mean?
According to the law that prevailed in the West Bank, in order to bring a mobile home into the territories, one needed a permit from the civil administration, that is, the minister of defense. Anyone who brought a mobile home into the territories without such a permit committed the criminal offense of violating a military order and was liable to up to five years in jail. But the legal situation that I found prevailing was that an Israeli who breaks a law in the territories which is not a felony under Israeli law cannot be tried in any Israeli court. Since the government's policy is not to try Israelis in military courts, there was no court where such a person could be put on trial.
So far, only one change has been made in the law based on my recommendations: The military commander has issued an order empowering Israeli magistrate's courts in the West Bank - which were originally established to deal with the internal affairs of the local Jewish authorities - to hear state indictments for acts considered to be illegal according to Jordanian law but over which the Israeli magistrate's court in the territories did not have jurisdiction in the past.
Has anyone been put on trial since the military government changed the law?
Ah, that's a good question. The question is whether the law has been put into action. It is worth looking into, to find out if there has been even one instance in which someone was put on trial. It would be good news if there were.
There are other matters that need to gain expression in military law. One of them should be to provide greater protection for Palestinian rights to the land they own, because they have no legal or administrative protection.
Unlike you or me, the Palestinian doesn't know exactly what is happening to his land from one day to the next, because there are roadblocks on the highways and he can't get there to see it every day. The police is empowered to evict trespassers only in the first 30 days after they have seized the land, and it can only evict if it has received a complaint and the army allows it to. If a Palestinian finds out that people have trespassed on his land, how can he prove when they did it if he's not there? How is he supposed to know in the first place? The police will tell him they are only empowered for 30 days. Prove that it's within 30 days. How can he prove it? In short, we must pass a law that will give them better protection.
Why didn't the army implement more of your recommendations?
Regarding some of them, the legal section of the army agreed that new legislation was necessary and even worked on some of it. If you ask me how long it should be taking them, I'll give you an example. There is a military order regarding unlicensed building. The order is used to dismantle illegal outposts in the territories. In December 2003, security officials learned via a High Court ruling that the existing order wasn't effective and needed to be changed. Soon afterwards, a new order was issued. As far as I can remember, it took a day and a half to formulate and another couple of days to authorizeâ€¦All I'm trying to say is that when they want to do something, it seems they can do it.
What makes an outpost illegal?
A legal settlement is one which is established on the basis of a cabinet decision - where the land upon which it is located is defined as state-owned land, which is included in a planning scheme that has received all the required permits from the planning authorities, and which is within the jurisdictional boundaries of an authority.
An illegal outpost is established without a government decision and is not included in an approved planning scheme. All of the 105 illegal outposts were not established on the basis of a government decision and are not included in an approved planning scheme. Some of them are not located on state-owned land and some are not included in the jurisdictional boundaries of any authority.
All the outposts that are not built on state-owned land should be evacuated immediately, yesterday or the day before would have even been better.
If the government wanted to, it could retroactively make the remaining outposts legal. One way or another, however, it cannot leave the situation as it is. Otherwise, the authorities are accepting, de facto, a state of illegality. People see that even though their actions are illegal, nothing happens to them. So they go on perpetrating those actions.
It doesn't matter which political party is in power. No democratically elected government can afford to reconcile itself with an illegal situation. Democracy and the rule of law go together, and you can't have one without the other. In the final analysis, in a democracy, the government represents the people. The people themselves must not accept a state of illegality.
The bottom line is that we are all responsible, both legally and morally.
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