Amona is a test case for Israeli democracy

By Moshe Dann, INN

As a matter of procedure, Israel’s High Court of Justice does not examine or evaluate evidence and does not decide issues of land ownership. They rely on what government offices tell them.

Israel’s legal and political system is rigged. The fix is in, and Amona is the current victim. There are more communities on the list.

The pending destruction of Amona led by a handful of unelected, unaccountable, and biased IDF officers and officials of the State compromises Israel’s basic principles. Amona, therefore, is a test-case of Israeli democracy.

Amona was built in 1995 on an uninhabited hilltop overlooking Ofra; it was supported by the Ministery of Housing and Construction,. But Amona’s existence was challenged by Peace Now and Yesh Din who claimed that the land was owned by private Palestinian Arabs — although they never produced any actual claimants.

The Minhal Ezrachi (Civil Administration), the legal authority in Judea and Samaria, and the Prosecutor’s Office (Praklitut) – the State — agreed and asked the High Court of Justice (HCJ) to order the community destroyed.

As a matter of procedure, the HCJ does not examine or evaluate evidence and does not decide issues of land ownership. They rely only on what the State (the Minhal and Praklitut) presents. As long as the State affirmed that Jews built illegally on “private Palestinian land,” and demanded that the homes in Amona, and elsewhere be destroyed, the HCJ was bound to enforce that decision. Although lacking due process, that is the law in Israel.

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 about the substance of the claim, it is not.

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 about the substance of the claim, it is not.

The source of the problem: Jordanian law

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. Since eastern Jerusalem was incorporated in 1980 and the Golan Heights in 1981, the Gaza Strip was evacuated in 2005, and Areas A&B given to the PA in the Oslo Agreements in the early 1990’s, only Area C of Judea and Samaria remains under military rule; as a branch of the IDF, the IDF Civil Government, Minhal, operates as a separate, unaccountable, and non-transparent quasi- government. This is undemocratic and unjust.

Unilaterally, the Minhal decided to accept Jordanian laws and procedures – although it was under no obligation to do so since Jordan’s occupation of the area was illegal and was rejected by the international community.

The proper procedure would have been to follow the Mandate law, since that authority was appointed by the League of Nations, i.e. sanctioned by international law. The Mandate incorporated Ottoman Land Codes and initiated land surveys and land distributions to Arab inhabitants. The Jordanians, following their predecessors, distributed land freely to Arabs and registering land claims — but they unilaterally changed the law.

Previously, gifted land had restrictions and conditions which had to be fulfilled, such as using the land (usufruct) within a specific time period (3-10 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, according to Jordanian law, selling land to a Jew is considered a capital offense. Thousands of Arab Palestinian land dealers and agents have been murdered by local gangs, or punished with 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, land registration records (Tabu) are held by the Minhal and are not open to those who are not included in the Jordanian-era registration process, i.e. Jews.

Politicization, not the rule of law

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, Praklitut and the High Court. The “rule of law,” has become simply enforcing arbitrary “laws” made by appointed officials, legal advisors and bureaucrats.

The collusion surrounding “judicial” decisions regarding Amona involves Attorney General Avichai Mandelblit and his 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 he 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. He should recuse himself.

Plans to destroy Amona and rebuild it elsewhere are dangerous because they don’t deal with the problem. They only reinforce the Minhal’s authority and its unfair system of determining land ownership.

The only fair and just solution is to adopt the Edmund Levy Commission’s recommendations, including special courts for determining land ownership. Amona’s survival is a test case for the judicial process in Israel and for the rule of law. It is a test case for whether the Government of Israel will act justly and humanely to protect the right of Jews living 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, of Israeli democracy.