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A brief history of land robbers, judges and slippery lawyers

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settlersby Adam Keller

Shortly after the IDF entry into the West Bank and the establishment of the military government which continues to this day, it was Meir Shamgar – head of the army's judicial branch, later Attorney General and still later President of the Supreme Court – who resolved to give occupied Palestinians the option of appealing to the Supreme Court in Jerusalem against the acts of the army set to rule over them. This was considered a significant expression of what was then termed "enlightened occupation" and speakers for Israel took great pride in it during their appearances worldwide.

But there were limits to enlightenment. The Supreme Court flatly refused to hear appeals based on the Fourth Geneva Convention, though the State of Israel had been among the first to sign it, already in 1949. Quite simply, this Convention speaks of the duties and obligations set on an occupying power in its relationship with inhabitants of the Occupied Territory – and the State of Israel refused to recognize that the West Bank is Occupied Territory, and found all sorts of other terms such as "Administered Territory" or "Disputed Territory". Government jurists were well able to phrase it in learned legal terms. It is always possible to find lawyers ready to formulate a legal case fitting one's needs. Gangsters know it, as do  prime ministers.

Under the Geneva Convention, an occupying power is obliged to maintain the status quo which existed in the territory upon its entry. It is certainly not supposed to settle its own citizens in the Occupied Territory, provide them a generous package of subsidies and incentives, and create a new and completely different demographic situation. But the government lawyers  concluded that it was not an Occupied Territory and the Geneva Convention does not apply.  As a special favor, the State of Israel would uphold the humanitarian requirements arising from the Convention. But,  what the humanitarian requirements are was left to the discretion of the state of Israel, its government, its army, and most importantly its settlers.

For example, the aspiration of landowners to retain ownership of their land was not a humanitarian issue. Rather, it was deemed to be a security issue. Thus, it was not very difficult for settlers to obtain land. Quite simply, the General in Command signed a decree stating that in his expert opinion as a high ranking military officer, the land located at area X of village Y was required for security purposes. Forthwith, the area was taken from its Palestinian owner, and they were forbidden to ever enter into it again as it was declared a closed military zone, and was surrounded by a fence and settlers joyfully entered. Formally the General stated in his decree that the land was seized for  temporary security purposes only, for a limited period of ten years, but this did not cause the settlers any problem, either – when the stipulated period ended the General just signed an new decree extending the seizure of the land for  temporary security needs for another ten years. In some cases he added an adjacent piece of land, which was also seized for strictly temporary security needs and handed over to the settlers who thereupon declared they would never leave these lands of Eretz Yisrael, the sacred Land of our Forefathers.

There were, indeed, those who asked naïve questions. How precisely did the transfer of civilian populations from Israel to Occupied Territory serve security needs? Indeed, what contribution to the security of Israel could be provided by a growing presence of pregnant women and young children? Did this not constitute, in fact, a new burden on the army's resources? But when such  questions arose in the Supreme Court, the judges proved very reluctant to set  their own civilian opinion in opposition to the military expert opinion of the Commanding General and the Army Chief of Staff, and the seizing of land for the purpose of establishing settlements regularly got the court's approval. When the Supreme Court unanimously gave a go-ahead to the confiscation of privately-owned Palestinian land north of Ramallah for the purpose of establishing a new settlement called Beit El, then Prime Minister Menachem Begin declared happily, "There are judges in Jerusalem."

And so did things go on for years and years, until that night when land was seized near Nablus, and the establishment of the Elon Moreh settlement was announced, and a road hastily paved through the land which a Palestinian farmer had no chance to harvest. Mobile homes were brought in, and on the same day the newly arrived settlers declared on TV: "This is our land and home, we will never go away". The story made unfavorable headlines in the country and around the world. The Peace Now Movement organized hundreds of protesters who blocked the new access road and laid siege to the settlers and spent the night opposite them. The present writer was also there on that night, in cold mountain night in the bare field and the hotly bursting protest.

And when this event arrived at the halls of the Supreme Court in Jerusalem, there were handed to the judges the expert opinions of Major General (Ret.) Matti Peled and Lieutenant-General (Ret.) Haim Bar-Lev, whose professional  expert opinion of the security situation flatly contradicted the opinion of the incumbent Chief of Staff and concluded that there was no security value to the establishment of a civilian settlement in Occupied Territory. And the judges took up this opinion and ruled that there expropriating Palestinian private land for the establishment of a civilian settlement was unacceptable, and the new settlement of Elon Moreh had to be dismantled forthwith. The settlers and their friends thereupon burst out in a bitter outcry, as they do in such cases.

But as was already stated, at need, it is always possible to find lawyers ready to formulate a legal case fitting one's needs, whether one is a gangster or a Prime Minister. Some jurists have a slippery and very imaginative and creative mind. In this case, a talented lawyer named Pli'a Albeck gave the matter some thought, and she eventually came up with the saving formula: no need to  expropriate private land, you can just settle on state land.

It turned out that there were lots and lots of state lands around, more than half of the entire West Bank, more than enough for hundreds of thousands of settlers. Lots of state land, most of it lands which Palestinians had held for generations until Mrs. Albeck discovered them to be actually state lands. Yes, state lands they were, by all sorts of very creative interpretations of Ottoman law which still applies, very creative interpretations which the Ottoman Sultans themselves never thought of. Bottom line: Before, landowners used to get from representatives of the Israel Defense Forces a piece of paper reading "We hereby inform you that your land had been seized for security purposes, so kindly step aside forthwith".  Now, they started getting a different kind of paper stating in essence "We hereby inform you that we discovered this land is not yours but ours. It is state land, I.e. Israeli governmental land, i.e. settler land, so kindly step aside most immediately".

The Supreme Court accepted this reasoning, and the Elon Moreh settlement was moved simply some kilometers to a new location that turned out to be state land, and dozens of other settlements sprung up, all on state land. The Supreme Court gave its wholesale approval to settlement on state land, and the settlements increased and grew and developed, and also survived successfully  the Oslo period and continued to grow and grow. The settlers were, however, not quite satisfied with the abundance of state lands available to them. They continued to covet private land, and establish facts and even more facts on the ground. And while the General in Command no longer issued for them official confiscation orders, also when they seized plots of private land with a manifest violation of the law they immediately got soldiers to guard them day and night and protect them against the landowners, and were immediately connected to electricity and water, and got paved access roads, as well as generous government mortgages and subsidies.

State officials contemptuously pushed aside the landowners' claims. But some Israeli peace activists such as Dror Etkes and Hagit Ofran conducted a thorough research to locate and map out the law-breaking and land theft perpetrated in broad daylight. Lawyers dedicated to Human Rights, such as Michael Sfard, went to the courts to confront the government and the settlers and their slippery representatives. And the evidence of theft and law breaking were clear and conclusive, and impossible to ignore. Even the gross intervention by the parliamentary right wing in the composition of the Supreme Court and the identity of its President was to no avail.  The court set clear deadlines for evacuation and demolition of houses built with manifest illegality on private Palestinian land. And now has come the time set by the court to dismantle the Ulpana Hill settlement, which is an extension and enlargement on private Palestinian land of the settlement of Beit El, which happens to be the same settlement which was as a whole founded on private Palestinian land thirty years, at which time the expropriation of land for security needs had been authorized by the court.

And now again the settlers and their friends are  bursting out in bitter outcry, as they do in such cases. To the point that they made use of their power within the Likud Party to undermine the rule of Prime Minister Binyamin Netanyahu, and thwarted his plans to call early elections and get  himself another period at the helm, and forced him into a rather dubious deal with the leader of what until now passed for "The Opposition ". And yesterday morning the Prime Minister called together his advisers and his ministers and his partners, old and new, searching for a way to give a valid legal basis to the robbery of land in broad daylight. As was already remarked, at need it is always possible to find lawyers ready to formulate a legal case fitting one's needs, whether one be  a gangster or a Prime Minister.


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