End the legal limbo

The Ulpana decision could reshuffle the entire Israeli political deck.

End the legal limbo (photo credit: AVI KATZ)
End the legal limbo
(photo credit: AVI KATZ)
Only a few short weeks after his coronation as “King Bibi” by Time magazine, Prime Minister Benjamin Netanyahu is being seen by many in his base constituency as the knave in spades. Indeed, his decision to raze/move the Ulpana neighborhood in the Samarian community of Beit El could reshuffle the entire Israeli political deck.
Netanyahu would like us to believe that he has no choice but to enforce a Supreme Court ruling to protect the rule of law. The rule of law, however, is not served by what would be a travesty of the law.
This is not the celebrated Elon Moreh case of 1979, as slavish defenders of the justice system like Intelligence Minister Dan Meridor pretend.
In that case, a settlement attempt produced an immediate appeal by an Arab who had clear title to the land, and the court ruled correctly in his favor. Currently we are dealing with a Jewish neighborhood, whose legitimacy was recognized by the government 12 years ago. It extended building permits and mortgages, in clear recognition that, in its view, title to the land was unencumbered. The ownership issue arose later and is still being thrashed out in the District Court.
Let us assume a worst-case scenario that the Arab claim of ownership is upheld. There is still no legal basis for destroying a neighborhood built in good faith.
Not in Israeli law. Even the patron saint of judicial activism, former Chief Justice Aharon Barak, decreed that when someone builds in good faith on land that turns out to be private property, the land owner must make do with compensation.
You say Israeli law doesn’t apply? Well, even invoking Ottoman or Jordanian law you wind up with the same conclusion: If the developed value of the land exceeds its original value, compensation is the legal route.
International law doesn’t support the bulldozing decision either.
Alan Baker, the former legal adviser to the Foreign Ministry, points out that in a similar case involving Greek landowners in Turkish-controlled Northern Cyprus, the European Court of Human Rights ruled for compensation.
So how did we get here? The State Attorney’s Office, either through gross negligence or because a clique with ideological proclivities deliberately sought to throw the game, conceded the case without involving those who had the most to lose, by announcing to the court that it would raze buildings erected on private land without any ifs or buts.
By the time the bureaucracy reversed its position, the court did not want to make itself a laughing stock by abandoning its previous ruling.
The only way out of the morass is for the Knesset to legalize cases where an Arab claimant appears out of the blue four or more years later.
To avoid a repetition of such travesties, Israeli law should be extended to all Jewish communities in Judea and Samaria. Is this unilateralism? Yes. But no more than the unilateralism evinced by the Palestinian Authority when it sought UN recognition as an independent state.
I do not conceal my hope that such an extension of Israeli law would presage the incorporation of the communities, including mine, in a Jewish state. However, we have seen that the extension of Israeli law and even outright annexation do not necessarily preclude negotiations over territory. Israel gave up sovereign territory in the Arava Desert to Jordan as part of the peace agreement. Former prime ministers Yitzhak Rabin and Ehud Barak dangled the Golan Heights carrot to entice the enlightened Assad clan in Damascus, even though the Golan has been under Israeli law since 1981. Even parts of Jerusalem annexed after the Six Day War did not escape the two Ehuds, Barak and Olmert, when they tabled their delusional “peace” proposals.
It is 45 years since Israel took control of Judea and Samaria. That is too long for a legal limbo, which is, in its very essence, an invitation to mischief and injustice.
The writer is a columnist for the Hebrew weekly Besheva.