How to really end the occupation

Perhaps thanks to the shock of the expulsion of the Jewish residents of Amona and the razing of their community, the Knesset passed a “settlement regulation bill” (חוק ההסדרה), which is intended to make it possible to legalize a settlement that is discovered to lie partly or wholly on Arab-owned land by generously compensating the owners.

I am not going into detail on how the law will work, because it is certain to be voided by the Supreme Court. One might ask why pass such a law in the first place, and I will answer that question later.

But in order to understand the whole conundrum, let’s look at the Amona case in detail. I’m indebted to several articles by Moshe Dann (here, here and here) and Eugene Kontorovich (here) for much of this material.

Amona was built in 1995 with government assistance. It is in dispute whether any of the land on which it was built had ever been cultivated by Arabs and if so, whether the original founders of the community were aware of this. But recently, Arabs, assisted by European-funded NGOs Peace Now and Yesh Din, claimed ownership on the basis of grants made by King Hussein during the 1948-67 period.

Israel is ruled by its democratically elected Knesset, and those parts of Judea and Samaria where perhaps 95% of their Arab residents live, are controlled by the Palestinian Authority. But Area C – the part containing few Arabs and nearly all Jewish settlements – is under military rule, governed by a body strangely called the “Civil Authority” (CA), part of COGAT, the Coordinator of Government Activities in the Territories, which is commanded by an IDF Major General, Yoav Mordechai.

The Jordanian King had liberally distributed land to local clans during his (illegal) tenure, and changed the original Ottoman law so that distributed land could be kept forever and inherited without being occupied or worked, and without paying taxes. This enables state land to become private, but not have a particular owner, something impossible in Israeli, Ottoman, British or for that matter, American law. This turned out to be one of Amona’s Kafkaesque problems.

When Israel took control, the CA made an administrative decision to adopt Jordanian land law. It also issued an order that the land registry records can only be accessed by those (Arabs) included in documents from the Jordanian era! In addition, the Palestinian Authority has a law that calls for long prison terms for anyone who sells land to Jews (it used to be a death penalty offense. Now the death penalty is often still imposed, but unofficially by terrorist militias). All this makes it very difficult for Jews to obtain land in Judea/Samaria and to be sure someone will not turn up who claims to own it.

The CA accepted the claims of the Arabs against Amona’s land with little or no investigation, and turned them over to the Supreme Court. But the Supreme Court only rules on matters of law and does not investigate the facts of a case; and on the basis of the CA’s representations, the Court ruled that Amona was built on “private Palestinian land” and must be demolished.

However, a suit in a lower court, which did investigate, determined that only about one-half acre out of all of the claims against the 125 acres of the community was actually legitimately owned by a real Palestinian Arab! Other claims were either false or — in the case of 15 acres — the original “owner” could not be found in the 1967 Jordanian census.

Nevertheless, the CA told the Court that even if the owner was unknown (and may never have existed), the land was still privately owned, and there was no way to distinguish the private land from the rest. On the basis of these “facts,” the Supreme Court saw no option but to order the entire community destroyed.

Despite Israel’s legitimate claim to all of Judea and Samaria under the Palestine Mandate, and despite the fact that Jordan illegally invaded, occupied and even annexed the territory it captured in 1948, Israel chose to regard her re-conquest of the territories in 1967 not as liberation of land that belonged to her, but as a belligerent occupation – in international law, a temporary arrangement in which a country controls territory belonging to another country as a result of war.

It’s hard to blame Israel at that point – she envisaged a peace agreement in which land would be traded for permanent peace treaties, and the US was pushing hard for such an arrangement. But this decision had many negative long-range implications.

There are all kinds of restrictions and obligations placed on an occupier, spelled out in the Hague and Geneva Conventions. More important, occupation implies that there is some other country which is being occupied. It can’t be Jordan, which seized the land illegally in the first place, and anyway gave up all claims on it in 1988. The international community seems to have decided that Israel is in fact occupying “Palestine,” even though there is no such country and never was.

In most countries the military is considered a right-wing force. In Israel this is not the case, where many IDF officers, in the tradition of Rabin’s Palmach, lean left. This explains the seemingly paradoxical existence of organizations like Commanders for Israel’s Security which calls for a “two-state solution” despite the fact that it would seriously impact security. There is no doubt that the CA sees settlements, especially ones with more radical, youthful members, as detrimental to prospects for peace.

It is often noted that the Supreme Court, like all of Israel’s legal establishment, has a leftist bias, and this is true. It also has taken for itself authority that is only tenuously based on Israel’s basic laws (our substitute for a constitution). It has eliminated any requirement for a petitioner to have “standing” – that is, to be able to show that he would be affected by the outcome of a case, and it believes that almost anything is a legitimate subject for the Court to rule on.

These factors have combined to create a particularly inhospitable environment for settlements, as we can see from the case of Amona, where the Supreme Court accepted petitions from anti-settlement NGOs, depended on factual findings from the anti-settlement CA, and allowed its own decisions to be colored  by an anti-settlement bias.

It is probably time for the procedures for selecting Supreme Court justices to be changed in order to make them less incestuous (the sitting justices today have veto power over new appointments to the Court), and rules for standing should be established. It is also time for a serious law restricting the ability of foreign-funded and controlled NGOs to function in Israel (these issues are related, because the threat of Supreme Court intervention worked to prevent the NGO law passed last year from having real teeth). But neither of these is the main issue.

The problem of the legality of the settlements and land ownership issues could probably be solved by extending Israeli law to Area C, as was done for the Golan Heights and eastern Jerusalem. But the biggest problem and the most fundamental issue, is that the government of Israel continues to tacitly accept the idea that Judea and Samaria are occupied territories – in other words, land that belongs to somebody else. As long as we do this, we will continue to see arguments that settlements are illegal according to the Geneva Convention, that we are committing war crimes against Palestinians, who are “protected persons” in international law, and that “it’s time for the occupation to end.”

It is, indeed. Israel has legitimate title in international law to Judea and Samaria, as well as being their oldest still-existing indigenous occupant, one whose historical and religious traditions tie it to the land. The Palestinian Arabs, by contrast, are the descendants of relatively recent migrants whose “peoplehood” has come about artificially as a response to Jewish sovereignty.

Although Israel’s Supreme Court has accepted the description of Israel’s control of Judea and Samaria as a belligerent occupation, it has never specifically ruled on this question, hopefully because the justices have had enough sense to understand that the decision to impose sovereignty is a political and not a legal one.

The regulation bill will serve as a litmus test for whether the present arrangement can continue. If the Supreme Court invalidates it, then many other settlements, including much larger ones than Amona will be imperiled.

And that is why I think it is important that it passed. When the Court throws it out, which it will, Israel will be faced with the need to make a very fundamental decision: do we want these territories or don’t we? If we intend to keep them – which I believe is necessary both for our security and our spiritual survival – then we should take the first step toward sovereignty: abolish COGAT and the CA and extend Israeli law to Area C.

Ultimately, we should adopt the Left’s favorite slogan: End the occupation! – and impose full sovereignty on all Judea and Samaria.