The question of land ownership, however, has not been determined by a court, and Arab claimants have not presented any valid proof which entitles them to the land.
By MOSHE DANNAmona(photo credit: TOVAH LAZAROFF)
The decision to destroy 40 homes in Amona by the end of this year exposes the corruption and politicization of basic institutions of the state. This process is simply a judicially backed fraud. The pending destruction of Amona led by a handful of unelected, unaccountable and biased officials of the state compromises Israel’s basic principles.Amona, therefore, is a test case for Israeli democracy.Built in 1995 on an uninhabited hilltop overlooking Ofra, and supported by the Housing and Construction Ministry, Amona’s legality was challenged by NGOs Peace Now and Yesh Din, who claimed that the land was privately owned by Palestinians.The Civil Administration (CA), the legal authority in Judea and Samaria, agreed and the state prosecutor – the state – concurred. Based on this, the High Court of Justice ordered the community destroyed.The question of land ownership, however, has not been determined by a court, and Arab claimants have not presented any valid proof which entitles them to the land.Although misrepresented as a judicial decision on the substance of the claim, that was not the nature of the court’s ruling. As a matter of procedure, the High Court does not examine or evaluate evidence and does not decide issues of land ownership. It relies only on what the state presents it with. As long as the state affirmed that Jews had built illegally on private Palestinian land and demanded that the homes in Amona and elsewhere be destroyed, the court was bound to enforce that decision. Although lacking due process, that is the law in Israel.The problem originates in the fact that the areas conquered by the IDF in the 1967 Six Day War are under “military occupation,” and that the military commander has sole authority there.Since eastern Jerusalem was incorporated in 1980 and the Golan Heights in 1981, the Gaza Strip was evacuated in 2005 and Areas A and B were given to the Palestinian Authority in the Oslo Agreements in the early 1990s, only Area C of Judea and Samaria remains under military rule; as a branch of the IDF, the CA operates as a separate, unaccountable and non-transparent government.This is undemocratic and unjust.When the CA was established, it was given the authority to decide questions of land ownership, among other responsibilities, and decided to accept Jordanian law and procedure – although it was under no obligation to do so since Jordan’s occupation of the area was illegal and rejected by the international community.
Since prior to the Jordanian occupation the area was under the authority of the British Mandate, which was appointed by the League of Nations, i.e. sanctioned by international law, the proper legal basis should be the Mandate. The Mandate incorporated Ottoman land laws which were promulgated in 1858, and initiated land surveys and land distributions to Arab inhabitants.The Jordanians followed their predecessors, distributing land freely to Arabs and registering land claims, but unilaterally changed the law.Previously, gifted land came with restrictions and conditions attached, such as using the land (usufruct) within a specific time period (three to 10 years, depending on the category of land) and paying taxes on it. If the land was not used and taxes were not paid, it reverted to the sovereign, the state. The right of inheritance was not automatic and could only be approved by the sovereign/state.The Jordanians changed the law by assigning gifted land in perpetuity, as if it was purchased and privately owned, including inheritance rights; they also voided payment of taxes. Moreover, under Jordanian law selling land to a Jew is a capital offense. As a result, thousands of Arab Palestinian land dealers and agents have been murdered by local gangs, or sentenced to long prison terms. Under this threat, potential sellers were afraid to deal with Jews.Moreover, it was difficult for Israelis to discover who owned land and what land was available.According to a military order, the land registration records (Tabu) are held by the CA and are not open to those who not included in the Jordanian- era registration, i.e. Jews.The struggle to save Amona, like the struggle over the evacuation of Jews from the Gaza Strip and Northern Shomron, “the disengagement,” exposes the politicization of basic institutions of the state – the IDF, state prosecutor and the High Court. It is not about the “rule of law,” but enforcing arbitrary “laws” made by appointed officials, legal advisers and bureaucrats.An egregious example of the collusion surrounding “judicial” decisions regarding Amona is Attorney General Avichai Mandelblit’s opposition to Knesset legislation to save Amona. As chief military advocate general of the IDF between 2004 and 2011, he was responsible for the IDF’s vicious attack on Amona in 2005, for the destruction of Migron and Jewish homes in other areas, and is responsible for declaring that the land on which Amona is built belongs to Arabs. His involvement in this case, therefore, is a clear conflict of interest.Mandelblit’s plan to destroy Amona and rebuild it elsewhere is dangerous because it reinforces the CA’s authority and its unfair system of determining land ownership.Amona’s survival, therefore, is a test case for the judicial process in Israel and for the rule of law over the dictatorship of military rule. It is a test case for whether the government of Israel will act justly and humanely to protect the right of Jews to live in Judea and Samaria. It is a test case for whether elected representatives have any power, and therefore, whether the legislative process is meaningful or meaningless.This is a test case, essentially, for Israeli democracy.