If only High Court would operate on settlement issues according to strictly judicial norms.
By ISRAEL HARELmigron(photo credit: Marc Israel Sellem)
The moment the High Court of Justice ordered the dismantling of the Migron outpost in Samaria by March 31, a special ministerial committee headed by Benny Begin started working on a compromise that would respect the court’s ruling but avoid a potentially violent showdown with the settlers. Begin proposed rebuilding the settlement on nearby state-owned land and deferring the dismantling of the existing site on land Palestinian plaintiffs claim is privately owned.If the residents of Migron accepted his proposal, he promised to go to the High Court in person and argue for postponement of the dismantling order until the new settlement is built. In mid- February, after weeks of agonizing, Migron acquiesced. But as soon as it did, a new obstacle surfaced. With time rapidly running out, the civil administration in Judea and Samaria declared the alternative site unsuitable.Besides Peace Now, which lodged the initial petition against Migron, the High Court also contributed its fair share to the sorry state of affairs. If only it operated on settlement issues according to strictly judicial norms, without bringing in politics and ideology, the imbroglio could have been avoided.In Israel, as in most countries, land ownership disputes are normally heard in lower courts where evidence is presented, maps unfurled and contracts produced. Only the politically motivated Peace Now petitions on land issues go straight to the High Court.And since the High Court does not admit testimony or examine contracts, its rulings with regard to settler outposts are inevitably political.The Migron affair was no different.Lawyer Hanan Meltzer, representing Migron in the High Court, was not allowed to submit a document proving that the land in question is not privately owned by Arabs.He was not even allowed to develop this argument verbally. I was present in the courtroom and, after brief opening remarks, he was summarily ordered to sit down.Ironically, Meltzer is today a Supreme Court justice.Encouraged by their success in the High Court, the plaintiffs sued again – this time in the Magistrate’s Court for damages.They argued that for the 12 years Migron has been in existence, they have not been able to farm their land. However, when asked to produce documents proving ownership, they quickly dropped the case, underlining the fact that the High Court had ordered the dismantling of Migron without checking the relevant evidence of ownership. The Magistrate’s Court, which did examine the evidence, ordered the plaintiffs to pay damages – to the state and to Migron.If the State Prosecution in Israel were not politically biased, it would have admitted its mistake and urged the High Court to revoke the dismantlement order. Before stepping down as chief justice later this month, Dorit Beinish could take the initiative and set things right. That would enhance her reputation and restore some of the High Court’s lost prestige – compromised through years of political and ideological rulings with a distinct left-wing bias. But she lacks the necessary stature and magnanimity.And since the legal system lacks the integrity to initiate a way out on its own, the government – on whose say-so Migron was established in the first place – should take the lead. It should go back to the High Court and insist that, since the plaintiffs cannot produce proof of ownership, the court should recognize the error of its original ruling and revoke the dismantlement order, with no strings attached. Any other solution – even if at the eleventh hour they manage to find an alternative site – would be unjust and exacerbate the lack of faith in the legal system. • Israel Harel, the founder and chairman of the Institute for Zionist Strategies, is a former chairman of the Judea and Samaria Settlers’ Council. His son Itai lives on Migron, where he runs an educational center for high-school dropouts.
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