by Dr. Moshe Dann
In Judea and Samaria, except for when the government so decides, the prevailing law enforced by the IDF is Jordanian. Hard to believe and even harder to accept.An ongoing debate is raging within the government about how to insure the survival of the Jewish community of Amona. Located near the much larger community of Ofra, Amona is fighting a High Court order stating that it must be destroyed because it was built on “private Palestinian land.” In order to implement a just and sustainable solution, it would be wise to examine how Amona -- which was established more than two decades ago with government backing on empty land -- came to be considered “illegal.”
After the Six Day War in 1967, Israel placed the newly won areas of Judea, Samaria (the so-called 'West Bank'), and eastern Jerusalem under military rule, hoping to trade all or most of them for peace treaties. With a few exceptions, Jews were not permitted to live in Judea and Samaria and its status seemed to be temporary and unclear. Government policy was ambiguous, at best. In order to provide a structure and authority that would allow normal life to continue, the government turned to the IDF which established the Coordinator of Government Activities in the Territories (COGAT), and the Minhal Ezrachi (Civil Administration).
Based on legal advisors, the IDF commander ruled that the IDF would follow Jordanian law completely and exclusively, except where it conflicted with IDF rules and regulations. This was an administrative decision, not law, and exceptions were made, for example to apply Israeli law concerning VAT. But regarding land ownership, the Civil Administration (Minhal) followed Jordanian law. This became important several decades later as Jews built new communities and as Arab Palestinians and NGOs Peace Now, Yesh Din and Rabbis for Human Rights, appealed to the High Court claiming that Jews had built their homes and property on “privately owned land.”
Their claims are based on massive land distributions that were carried out by Jordan during the early 1960’s in Judea and Samaria (the 'West Bank'). These arbitrary land grants were unconditional and, according to Mandate and Jordanian law, when recorded in the land registry, gave the recipients title and permanent possession. Most of the land was never used and no taxes were paid, which are required by Ottoman law, and therefore should have nullified any claims of ownership.
Since Jordan’s occupation of Judea, Samaria and parts of Jerusalem was illegal, and its claim to be the legitimate sovereign was rejected by the entire international community, except for England and Pakistan, the IDF was under no obligation to recognize Jordan’s authority, including its laws and legal structure. Three Israeli laws were already in force and should have been employed:
1. The Area of Jurisdiction and Powers Ordinance (1948) requires that Israeli land laws be applied to "any part of Palestine which the Minister of Defense has defined by proclamation as being held by the Defense Army of Israel." According to late attorney and legal expert Howard Grief, this law “was enacted for the sole purpose of recovering for the Jewish State those lands that had been recognized as integral parts of the Jewish National Home under international law in 1920 and had always been considered the patrimony of the Jewish People."
2. The Emergency Regulations (Cultivation of Waste [Uncultivated] Lands) Law (1949) “authorizes the Ministry of Agriculture to declare lands as ‘waste’ lands and to take control over ‘uncultivated’ land.”
3. The Emergency Land Requisition (Regulation) Law (1949) authorizes the requisition of land when it is “necessary for the defense of the state, public security, the maintenance of essential supplies or essential public services, the absorption of immigrants or the rehabilitation of ex-soldiers or war invalids.”
In short, the Israeli government has the legal backing to appropriate land where necessary. Since the Israeli government has not annexed or extended Israeli law to these areas, they remain under the sole jurisdiction and authority of the IDF. Ironically, the IDF, which represents the State of Israel, implements Jordanian law -- with the approval of the High Court. Recently, the High Court went even further.
In 2014, High Court justices Dorit Beinish, Edna Arbel, Miriam Naor, gave a precedent-setting judgment. They ruled that Jewish residents of Judea and Samaria (“settlers”) could not use Ottoman land laws to gain ownership rights to land which the Civil Administration (Minhal Ezrachi) said was registered and therefore considered “privately owned,” albeit unused. Moreover, Chief Justice Beinish declared that land which was not designated as State Land was automatically “private Palestinian land,” regardless of whether it was claimed and used by Arabs and properly evaluated, or not. This follows Jordanian law, but, unilaterally, the former Chief Justice made it Israeli law.
Therefore, simply recognizing that land grants which had been registered are “privately owned” is sufficient to prevent Jews from using and claiming it. Jews were and could be expelled from their homes, their property destroyed and their trees uprooted -- even when there was no legitimate Arab claimant or no claimant at all.
Now that almost four hundred thousand Jews live in Area C of Judea and Samaria, along with an estimated 50,000 Arab residents, this policy makes no sense. Why does Israel implement an anti-Jewish, anti-Zionist anti-democratic legal system? Claiming to uphold the “rule of law,” the IDF and High Court are gutting the fundamental values and purpose of the State.
If the current policies and practices of the IDF and High Court had been implemented in 1948/9, there would be no State of Israel today. The campus of Tel Aviv University would be returned to the descendants of “Sheikh Munis,” the palatial Arab homes in Jerusalem’s Talbieh and Baka neighborhoods would be given to descendants of Arabs in Lebanon, and most of the Galilee would be under Arab rule.
Recognizing Jordanian law as legitimate by the IDF, and therefore the State of Israel, has very serious implications. It suggests that the State of Israel recognizes Jordan’s occupation as legitimate. This clearly undermines Israeli claims to Judea and Samaria, as well as Jerusalem. Moreover, accepting the legality of land distributions to Arabs made during the Mandate and Jordanian occupations could be used to challenge land acquisitions by Jews inside the 1949 Armistice line as well.
Since Jordan renounced all claims to the "West Bank” in 1988 and signed a peace treaty with Israel in 1994 which defined the international boundary as the Jordan River, why does the IDF accept and implement Jordan’s illegal system?
The Oslo Accords created a political/legal framework which assigned Areas A&B to the Palestinian Authority (PA) and Area C to the State of Israel. Most Arab residents of Judea and Samaria and eastern Jerusalem carry Jordanian passports and the PA follows Jordanian law. But why does the IDF/State of Israel also use Jordanian law – especially when it is biased against Jews? Why are taxpaying Israeli citizens living in Judea and Samaria subject to Jordanian laws?
Since, according to Jordanian and PA law, selling land to a Jew, receiving any payment or participating in such transactions is a capital crime, accepting compensation is dangerous. Hundreds of Arabs have been executed or given long prison sentences for these offenses.
Finally, the IDF and the High Court are promoting and giving official sanction to the canard that “Israel (i.e. Jews) is stealing Palestinian land.” This should not be the message of those who represent the State.
Civilian matters, such as disputes over land and protecting the environment, should be decided by proper courts of law and well-trained experts, not by IDF legal advisors and bureaucrats who operate a separate, unaccountable and non-transparent judicial system. This is a mockery of the rule of law.
This policy can be changed legally, by Knesset, or by a government decision. Since this will take some time, however, the government can declare a moratorium on plans to destroy Jewish homes and communities. Anyone who can prove that they are harmed by the moratorium will be compensated; that would be humane policy, but the destruction of Jewish property in order to serve Jordanian law makes no sense.
Moreover, as retired District Court judge Uri Shtruzman notes, under local law, if someone has built in good faith but discovers later that the land was owned by someone else, he has the right to pay the owner of the land when the value of the building exceeds the value of the land and leave the building in his possession and ownership.
A just and humanitarian approach to resolving questions of land ownership will restore Israeli democracy by asserting the authority of Knesset and the government and it will avoid further fracturing of Israeli society.
The crisis in Amona is not only about a dispute over land ownership and the fate of a community. It is about the failure of Israel’s judicial system to act impartially and fairly. That is of national concern.
Dr. Moshe Dann is a writer and journalist with a Ph.d in history, who lives in Jerusalem.
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