Beinisch’s bombshell

Claims that Jews have stolen and built on “private Palestinian land” should not be decided by politically motivated individuals and advocacy groups.

By MOSHE DANN
Migron Demolition 311 (photo credit: Marc Israel Sellem)
Migron Demolition 311
(photo credit: Marc Israel Sellem)
Supreme Court President Dorit Beinisch’s decision on September 12 broke sharply with traditional interpretations of law, yet the media largely ignored it.
In a case brought by Peace Now against the Binyamin neighborhoods (“outposts”) of Hayovel – where Maj.
Eliraz Peretz’s widow and children live – in Eli, and Harisha, in the Talmonim bloc, Beinisch directed the state – i.e., the Civil Administration for Judea and Samaria – to determine what constitutes state land. According to her ruling, all land not specifically designated as “state land” would henceforth be considered “private [Palestinian] land.”
She also gave the state 60 days to provide a schedule for destroying all (Jewish) building on “private land,” with the exception of the Peretz home. Peretz was killed in a battle with Hamas terrorists in March 2010.
This ruling radically shifts the burden of proof with regard to property disputes in Judea and Samaria. Up until now, Arabs who claimed that their land was taken illegally have been required to prove the veracity of that claim. Now, Jewish communities that claim the land is not privately owned and is thus available for settlement will be required to back up their claims. Since Beinisch’s decision cannot be appealed, the ruling will stand as law unless the Knesset acts to legislate otherwise.
ALTHOUGH THE Supreme Court president may have sought to clarify and simplify questions of land ownership, her decision overrides important distinctions and categories of land established by prior administrations and accepted by the courts. Her ruling redefines which lands are to be considered “disputed” and seems to accept at face value unverified Arab claims to land that Arabs have simply expropriated illegally.
Moreover, since Israel has not declared sovereignty or annexed land beyond the 1949 armistice lines (except for eastern Jerusalem and the Golan Heights) Beinisch’s ruling could apply to many other areas in Judea and Samaria as well.
Not only are “hilltop” communities like Migron, Amona, Givat Assaf and Gilad Farm now at risk, but large parts of established towns like Ofra, Beit El, Eli, Elon Moreh and others could now be targets for destruction.
According to Israeli law, jurisdiction about land ownership issues in Judea and Samaria rests with the civil administration in conjunction with the State Attorney’s Office (part of the Justice Ministry). Both have been accused of pursuing anti-settlement policies.
Decisions about land ownership should be based on impartiality, objectivity and professionalism. Unfortunately, however, they are often influenced by political agendas. In the absence of documentation and detailed land surveys, for example, the civil administration relies on aerial photographs for evidence of working the land, which are used to support claims of ownership.
NGOs and Arabs often cite maps produced during the British Mandate to “prove” land ownership in order to and thereby contest the legality of Jewish settlements. But according to Dr. Dov Gavish, author of The Survey of Palestine Under the British Mandate, 1920-1948 (2005), these maps were fiscal maps, often arbitrary and inaccurate, and should not be considered proof of ownership.
Since “state land” means ownerless land that was once controlled by Turkish, British and Jordanian administrations, then Israel, as the sole legitimate sovereign successor, seems to have full legal rights to the land. That would include all conditions, restrictions, obligations and responsibilities attached to the land.
Similarly, lands that had been gifted or designated by the state to an individual, clan or village but was not used, abandoned property, and land in which the owner dies intestate all revert to the state by law.
Beinisch’s ruling also seeks to overturn the meticulous work of Plia Albeck, who directed the Civil Department of the State Attorney’s Office for 24 years until she was fired by attorney-general David Libai in 1993, when Yitzhak Rabin became prime minister. During her tenure, Albeck was responsible for determining land ownership and provided the legal basis for establishing Jewish communities in areas Israel acquired in 1967.
Basing her decisions on Ottoman/Turkish, British and Jordanian law, Albeck, who died in 2005, defined many areas in Judea and Samaria as state land, thus allowing their subsequent designation for settlement.
In 2004, then-prime minister Ariel Sharon attempted to reverse Albeck’s findings in the leadup to the withdrawal from the Gaza Strip and northern Samaria. Sharon hired Talia Sasson, a member of Peace Now and formerly an attorney in the State Attorney’s Office, to investigate; her report in 2005 castigated government agencies for their involvement in settlement building, sought to redefine state land, and asserted Palestinian claims that all settlements were illegal. Beinisch seems intent on implementing Sasson’s report.
CLAIMS THAT Jews have stolen and built on “private Palestinian land” should be decided upon by competent, objective authorities based on evidence in courts of law – not by politically motivated individuals and advocacy groups. The larger question, however, is to whom this disputed territory belongs.
Since “Palestine” was never a separate legal or sovereign entity, designating land as “Palestinian” or belonging to “the Palestinian people” lacks accuracy and authenticity.
Ironically Justice Beinisch’s decision to make the question of land ownership in Judea and Samaria subject to Israeli civil law may provide the basis for establishing sovereignty over and extending the state’s jurisdiction to areas currently under military control. That would be a step forward for Israeli democracy and fulfilling the historic mission of the Jewish people in the Land of Israel.
The author is a PhD historian, writer and journalist living in Jerusalem.