Israel’s rule of law is facing a serious challenge.
Depending on how it ends, we will either see our democracy secured, or we will find ourselves trapped in an authoritarian legal order in which our laws and our legal norms are dictated to the public by a junta of unelected attorneys.
The site of the battle is the 20-year-old community of Amona in Samaria. Home to 40 families, Amona was built on 150 acres adjacent to the community of Ofra.
Two years ago, based on a petition submitted by the foreign government funded radical Yesh Din organization, the High Court of Justice ruled that Amona must be razed to the ground by December 25, 2016. The decision was based on claims to private ownership of the land by a number of Palestinians who had been sought out and identified by Yesh Din.
The High Court is not a court of first instance. It does not weigh in on the actual merit of claims. It simply assumes they exist. And due to a failure of Israel’s administrative law, presently, there is no lower court tasked with adjudicating claims to ownership before such claims can be asserted before the High Court.
Following the initial High Court ruling, Yesh Din decided to take matters a step further. Based on the ruling it filed a separate civil suit against Israel’s military administration for damages in the name of the purported owners.
Yehuda Yifrach reported Friday in Makor Rishon that once the suit was filed, the Jerusalem District Court acted to ascertain the actual scope of the ownership rights under question. It was determined that a mere half-acre of Amona was built on lands to which the Palestinians made claim. The rest of their claims pertained to land outside of the community altogether.
In other words, once the actual claims of ownership were examined it worked out that a mere fraction of the community was built on privately owned land. It further worked out that the precise areas that were owned by claimants are non-contiguous and indiscernible, but all were generally located on smidgens of plots on the southern side of the community.
Others have disputed Yifrach’s findings. But that is part of the problem of ascertaining the validity of ownership claims.
At any rate, as Yifrach noted, rather than say that the owners would be compensated for the half acre, whose specific locations were unclear, the Attorney General’s office decided that all the plots that included privately owned land had to be destroyed. Thus the Attorney General’s lawyers magically transformed a half acre into 15 acres, covering the entire southern part of Amona.
The government then decided it would raze only the homes located on those 15 acres and move the families to new homes in Amona on undisputed plots in the northern half of the community.
The Supreme Court would have none of that, however.
The justices insisted that their initial decision that all 60 acres be razed to the ground still stands.
In the two years since the court’s ruling, the government formed a committee charged with resolving the dispute between the Palestinian claimants to ownership on which the Israeli families have built their homes.
The committee came up with the solution of passing a new law in the Knesset that enables the military administration in Judea and Samaria to seize land for the purpose of settlement and compensate the owners for their property. The draft law, known as “the Arrangements Law,” passed its preliminary reading in the Knesset last week and is set to pass its three formal readings in the coming weeks.
There is nothing radical about the draft law. As Bar Ilan University law professor Avi Bell explained in an article published in Friday’s Israel Hayom, there are numerous examples of such laws in other liberal democracies.
Bell’s article came in response to Attorney General Avichai Mandelblit’s opinion on the draft law. Ahead of the initial passage of the law, Mandelblit published an opinion in which he claimed that the proposed law was unconstitutional and would be overturned by the High Court.
Mandelblit made three claims to support his contention.
First, he claimed that the proposed law is a breach of international law. While this claim itself is at best debatable, Bell showed that even if it were correct, it wouldn’t matter. As is the case in the US and other liberal democracies, in Israel international law does not supersede the laws passed by the Knesset.
Mandelblit also claimed that the Knesset has no right to pass laws that supersede the international laws relating to belligerent occupation of lands seized in war. But as Bell explained, the opposite is actually true. First of all, the Knesset has in the past decided that the rules of belligerent occupation will not apply to specific areas that Israel took control over during the 1967 Six Day War. For instance, in 1981 the Knesset decided that the rules of belligerent occupation would no longer apply to the Golan Heights and replaced the military administration of the area with Israeli law when it passed the Golan Heights Law.
Second, Mandelblit argued that in cases that do not involve land governed by a military administration, eminent domain cannot be used in relation to private construction projects. But as Bell noted, this claim is incorrect. In the US alone, there are dozens of examples where courts ruled that eminent domain can be used to seize land for private construction projects.
Mandelblit’s third argument against the Arrangements Law was that the Knesset doesn’t have the right to pass laws that contradict High Court decisions. Here too, Bell countered that the record does not support Mandelblit’s contention. Israel’s Basic Laws, which form the basis of its constitutional regime make clear that the Knesset is the highest legislative authority. Bell also recalled that the Knesset has passed numerous laws that have overturned High Court decisions.
Given the specious nature of Mandelblit’s legal reasoning, it is difficult to avoid the conclusion that in writing his opinion he was not acting as a lawyer, but as a political activist. Mandelbilt’s purpose was not to protect the rule of law – which his opinion ignores and distorts. Rather his goal was to protect the rule of lawyers who use their positions as officers of the court to advance their political agenda.
Faced with the specter of Mandelblit’s legally unsupported “legal” opinion, Prime Minister Benjamin Netanyahu first tried to get the court to delay the deadline for destroying Amona for several months.
Unsurprisingly, the court, which is fighting not for justice but to prove that it is more powerful than the government, rejected his request.
Now, in an attempt to get around Mandelblit’s specious opinion, Netanyahu is apparently backing a plan that would set up a special tribunal to determine ownership rights and compensation on the basis of a Turkish model used in occupied Northern Cyprus.
The problem with that model is first that it would come too late to save Amona and so doom the community to unwarranted destruction, at the hands of an authoritarian and hostile legal fraternity.
Moreover, it is far from clear that such tribunals can function without the Knesset first passing a law delineating the basis of their powers.
The timing of this showdown between the rule of law and the rule of lawyers couldn’t be worse. It comes in the twilight of the Obama administration which has shown consistently that the actual legal basis for Israel’s actions in Judea, Samaria and Jerusalem is irrelevant.
President Barack Obama and his advisers condemn every action Israel takes because they oppose Israel’s presence in the areas for ideological reasons that have nothing to do with law.
Unfortunately, we can’t always pick the timing of our great battles.
Mandelblit and his comrades have left our lawmakers no choice. They must pass the Arrangements Law, and override Mandelblit. This is the only way to ensure the Knesset’s position as Israel’s lawmaking body is respected.
This is the only way to secure Israel’s position as a nation governed by the rule of law, rather than the rule of unelected, unaccountable lawyers.
Reprinted with author’s permission from The Jerusalem Post