Amona and Israeli democracy

by Moshe Dann, JPOST

There are times in a nation’s history when it seems swept inexorably towards the next stage in its development and its destiny, often amidst inner conflicts and sometimes violently. The American Civil War is an example of a society divided over the issue of slavery which led to a devastating conflict.  The issue was complicated because the Supreme Court, under Chief Justice Roger Taney, had declared in the Dred Scott decision that slave-holding was a Constitutional right. Six years later, in 1863, President Abraham Lincoln issued the Emancipation Proclamation which changed the course of American history. This was followed by Amendments to the Constitution which abolished slavery and guaranteed rights of all citizens.

But well before, a number of important governmental issues had emerged which defined the course of American democracy and are the bases of all democratic systems. The principle of Separation of Powers, first presented by Montesquieu (Spirit of the Laws) in 1748, defined the powers of the three branches of government: courts interpret law, the executive branch enforces the law, and the legislative branch makes the law.

This fundamental principle was incorporated into the Article 3 of the US Constitution. The meaning and application of this principle was worked out in landmark cases, like Marbury vs Madison (1803), which established the right of judicial review. This process was, and is (it’s ongoing) the essence of a democratic system. The court’s power, however, was limited by the principle of judicial restraint.

In Israel, these complicated issues have now become focused over the question of Jewish communities in Judea and Samaria (“settlements”) and specifically Amona.

First is the question of which laws apply to Area C of Judea and Samaria, defined by the Oslo Agreements as under full Israeli control: Ottoman, British Mandate, Jordanian, Israeli or international law. Since Israel did not annex this area, it is under the authority of the IDF military authority, COGAT and the Civil Administration (Minhal Ezrachi).

Second is the question of who should decide issues of land ownership and on what basis. The Edmund Levy Commission report – established by the government — laid out a coherent legal position and suggested specific ways to resolve questions of land ownership. Inexplicably, the government has not accepted this Report and it remains dormant.

Third, what are the rights of Israeli citizens living in Area C? Are they entitled to have their claims adjudicated in Israeli courts with due process? Do they have equal protection under the law?

Fourth, does the High Court (and the Attorney General) have the right to make laws and dictate to the other branches of government?

The decision by Israel’s government to protect Jewish communities in Judea and Samaria is being played out against international opposition and Arab incitement and terrorism. Ironically, this struggle is exacerbated by decisions of Israel’s High Court and its judicial establishment to destroy Jewish communities and parts of communities because of allegations that they were built on private Palestinian land.

Such claims of private ownership are false. As legal expert Yehuda Yifrah explained in an article published in Makor Rishon, of the nine Arabs who claim to own the land on which Amona was built, seven of the plots were not located in Amona. “…the two remaining petitioners … claim ownership of only a tiny sliver of a percentage of the settlement’s land …about two dunam out of the 500 dunam upon which the settlement sits… All the rest of the land is registered in the name of people who do not exist, either now or in 1967; there is no trace of them in the population records drawn up after the Six Day War.”

Yet, the State Prosecutor’s office decided that the entire area of Amona was “private Palestinian land;” the High Court accepted their decision and demanded that Amona be destroyed.  The High Court also ignored Jordanian and Israeli law (as well as law used by all democratic countries) that someone who has built and planted on land belonging to another in good faith, and where the value of the construction exceeds the value of the land, the landowner is required to accept monetary compensation.

Under Jordanian occupation (1949-1967), large tracts of Judea and Samaria land were distributed freely and registered to Arab tribes and clans. Since no one paid for the land and most of this gifted land was never used and no taxes were paid, according to Ottoman and British Mandate law Arab claims of private ownership are not valid.

Nevertheless, the IDF military commander and legal advisors unilaterally decided to adopt Jordanian law, which registered the gifted land as if it had been purchased. Therefore, when Arabs claim to own land on which settlements were built, the IDF Civil Administration accepts their claims. The High Court approves decisions of the Civil Administration and State Prosecutor’s Office without examining any documents, or proof of ownership. And, since the High Court is the judicial body of last resort, there is no possibility of appeal.

The bewildering decision to recognize Jordan’s land give-away program is even more bizarre since Jordan had joined other Arab states in attacking the State of Israel in 1948 in a war of annihilation. With the exception of Britain and Pakistan, no country recognized Jordanian sovereignty in Judea and Samaria, because they believed that in doing so they would imply recognition of Israel based on the 1949 Armistice Lines. In 1967, Jordan again attacked Israel, and, in response, Israel acted in self-defense, liberating eastern Jerusalem, Judea and Samaria. Jordan renounced all claims to the area in the 1988 and included it officially in its peace treaty with Israel. Israeli sovereignty in Judea and Samaria is consistent with international law — the League of Nations Mandate, the UN Charter, and UNSC Resolutions 242 and 338.

The future of Amona and all Jewish communities in Judea and Samaria should be decided by the elected government. The High Court’s decision to destroy Amona, therefore, raises basic questions about its role in Israeli democracy and the meaning of government “of the people, by the people, and for the people.”

December 21, 2016 | 19 Comments »

Leave a Reply

19 Comments / 19 Comments

  1. Anyone interested in determining just how far the leftists are willing to go must read:
    Ziff, “The Rape of Palestine” (1938) You can find the full text on the internet.

  2. Edgar G. Said:

    suffered grievously from ReConstruction carpetbaggers

    TX’s family lost the Ranch that they gained during the Texas War for Independence . 8 sq. miles of what is now NE San Antonio ,Tx. Other of his relatives were given land for their service in GOA.

    he had an Aunt who new the exact parameters of Ranch. The minute we crossed at road she would say ,We’re on the Ranch”, although their houses and shopping center.

  3. ArnoldHarris Said:

    Constitutional development, at the University of Illinois at Champaign-Urbana in Spring 1962.

    My Father graduated from UI at Urbana straight A’s. His photo is hung there in his honor. He also taught law at the UC in Chicago.

  6. Those members of the supreme court that have obviously broken the law should be arrested and removed from their current positions.

  10. @ Sebastien Zorn:
    XXX
    Your information is only partially correct, probably like mine too.

    About 40 years before the War, The Missouri Compromise decided which future states would be slave or free, because of the wrangling over the 1803 Louisiana Purchase bought when Boney was hard-up, Cheap too, about 10-11 mill dollars to double the size of the US.

    About 10 years before the Civil War, Gadsden, a ferbrente Southern Democrat, who was involved in purchasing lands from Mexico, ostensibly for a railroad, was unsuccessful in introducing slavery there. He also wanted to divide California into a North and South, the lower part to be a slave holding entity.

    The case of Dred Scott and the Taney Supreme Court decisions on the (lack of) rights of slaves and descendants, is the most disgusting legal malpractice I have ever come across. Chicanery. It was probably as much a partial catalyst as Uncle Tom’s Cabin, to harden the Northern States against slavery.

    Lincoln himself, stated that his main goal was to keep the country unified, that he would rather have it united, with slavery, than divided without it. He realised that slavery was irreversibly on it’s way out, as I mentioned in an earlier post.

    I must have about 100 books on the Civil War, the political and economic factors gradually leading up to it, as well as full details of all the Generals, many officers, troops, battles, strategies and tactics ..all of which make absorbing reading.

    I recall many years ago, around the 1960s in Canada whilst trying to buy property, this very old, shrivelled, quite dark complected woman, obviously from the South, suddenly went on a harangue about the damned (niggers she called them) and the War…I was entranced. After all, the war had been over for over 90 years. It seemed her family that were not killed in the War, suffered grievously from ReConstruction carpetbaggers of whom many were accompanied by freed slaves.. She must have been born then.. But I was astonished because I’d thought that she was part black herself.

  11. @ Edgar G.:

    Slavery was central. It was about whether the newly acquired territories would be slave or free. Slavery had to expand or die because of soil exhaustion. The Cotton Gin had given slavery a new lease on life at the end of the 18th century. But it was a cash crop economy. No rotation. They imported everything. Feudal in culture, but a slavery based capitalist culture underneath. The South declared war when Lincoln won. They planned to conquer their way south. The North had a diverse industrial and small producer economy undermined by slave labor that also had to expand. The clash was inevitable from the time of the Revolution but it was postphoned with a series of compromises in the face of European colonialism. The war broke out shortly after the last European presence vanished.

  13. @ Sebastien Zorn:
    I too studied Marbury vs Madison, in a course on the history of US Constitutional development, at the University of Illinois at Champaign-Urbana in Spring 1962. So I know your assertions are totally correct. For whatever my opinions are worth.

    Arnold Harris, Outspeaker

  15. @ honeybee:
    XXX

    Thanks Honeybee, it’s a nice feeling to be appreciated now and then. I think Sebastien is trying to sidetrack me a little by quoting Marbury V Madison, and making it a Constitutional issue, sliding it from the U.S. Constitution to Israel, although Israel has no Constitution, and the High Court is blatantly and openly activist in making law, and not carrying out it’s proper tasks of interpreting Laws and the clear intentions of Laws.

    The fact are clear, the High court has interfered where it has no right nor solid ground. There are bo visible or real Arab owners to any of the Amona site. And Shaked is coming as a G-d sent angel to right the wrongs perpetrated by the High Court and it’s acolytes and cronies, as well as the oligarchy of THE Israeli Machers, for so many years having Israel under their grimy, soiled thumbs.

    It’s rather like, in a way, the revolution of common-sense people in the US and Britain against entrenched and corrupt bureaucracy. Italy is also on the same path I hear, and the EU is beginning to tremble in fear of knock-on disintegration.

    Netanyahu, ostensibly a right wing leader, has been playing a very murky game here, perhaps impelled by international pressure (un-named, but always there like a bogeyman) and perhaps by his Byzantine political agenda.

  17. @ Edgar G.:

    I think the parallel the author is pointing to is in the development of Judicial activism in the name of interpreting a Constitution. Marbury v. Madison, a case I studied in a political science class, was crucial in that while the court sided with the President in that issue, in so doing it established its right to decide such issues. Though the article doesn’t go in that direction, it occurs to me that Justice Minister Shaked seems to have engineered the mirror image opposite result. In order for the court to have its authority upheld, it is effectively reversing itself politically in putting the rest of the Settlements under its own authority but thus effectively furthering annexation and undermining its doctrine of upholding TSS. I presume you are all aware of the recent compromise that the residents accepted that allows some of the families to stay on the same hill. and yet:

    Amona: A cholent pot of emotions after agreement

    http://www.israelnationalnews.com/Articles/Article.aspx/19932

    “To the children of Amona though, this is not just a chapter but the whole book, and they are incapable of imagining anything outside of what they currently know as home. They were born in Amona. It’s where their friends are, their school, their favorite climbing tree, and their growth chart on the wall of their ‘home’. Their heart, soul, and whole life IS AMONA.”

    I am reminded of a wonderful film

    Three Wise Fools (1946) Margaret O’brian, Lionel Barrymore, Lewis Stone, Edward Arnold. See Full Plot Summary. I remember if finishes with the leprechaun children in the tree telling their teacher who just told them the story that they don’t believe in the existence of humans.

    http://www.imdb.com/title/tt0039031/

    Terrific article. People should circulate widely. It undermines the false narrative of stolen Palestinian land.

  18. Moshe Dann’s article is excellent. Jordan never had sovereignty over Judea, Samaria or East Jerusalem. They were incapable of authorizing private grants of land.
    By judging cases in which there is no real controversy, the so called “High Court” displaces the Knesset. It better look to see how many divisions it can muster.

    Mr. Dann must be complimented on his work.

  19. xxx

    Amona can’t be compared with the American Civil War. It’s a pure fraud of fictitious Arab ownership, combined with High Court judges who have the chutzpah to rule that a whole area which involves 40 long settled families should be destroyed because of a purported but unproven, and invisible ownership of 2% of the whole area.

    The Civil War was peripherally about slavery, but in reality it was about the fact that the North was choking the South with punitive tariffs, and highly priced goods whilst either preventing the sale of forcing the purchase of Southern raw materials at rock bottom prices. Slavery became the popular cry, as the war progressed, but it was already on it’s way out. Slave importation was banned in 1807, and the abolition of slavery completely was gradually taking hold, and would undoubtedly have been successful in another 10-15 years at most. It was an anachronism, and well outdated, Also, the South was becoming aware that the rest of the civilised world condemned them for it.

    We also MUST remember that Lincoln DIDN’T “free the slaves” per se…. he freed the slaves only in the Southern states, over which he had no control. The real freedom of slaves came several years later. But then, after “Reconstruction”… the South had been so bitter about the after-war abuses of the carpetbaggers, that they enacted laws which basically put the former slaves right back into work gangs and etc, through being arrested for the most petty crimes, like so-called vagrancy, and others similar. It was only in the 1940s that one could say that slavery had finally been abolished.

    I have read much about this matter in the past, and the facts, as I relate them are well known to historians,

    As a side item, I have at least 3 books written by former slaves, who were “owned” by Jews, who, although thoroughly Southern, still arranged with their slaves that they could have any time off they wished to earn money under their protection, to repay their price to the Jewish owners, and then helped them either to move to the North, or live as Freedmen in the locality. Jewish slaves were house slaves, not plantation workers..