This Land is…

By Rabbi Steven Pruzansky

Here in the land of Israel, nothing is expected to be normal and events verify that conclusion on a daily basis. That is the reality, and not necessarily a bad thing.

The week of fires that swept across the land, more than 1000 in all, now seems like a distant memory except, of course, to those who lost their homes and possessions. It is nothing less than miraculous than no one died, and no one was even seriously injured. Every home was evacuated, and to those who have seen the effects of fires in other parts of the world, this was nothing less than “G-d’s kindnesses” on display for all.

The fires stopped because of increased vigilance on the part of the authorities, buttressed by the heavy rains that fell last mid-week that saturated the earth and left it less vulnerable to conflagration. The fires occurred in an atmosphere that was parched dry and the flames were fanned by heavy winds that were relentless for several days.

To be sure, not every fire was arson. Some were the result of negligence, some gross negligence. Many Arab communities have the quaint custom of disposing of their garbage by burning it, something I witnessed last month in the Arab village of Turmus Aya just south of Shiloh. The dry land and the strong winds caused some of those garbage fires to spread out of control. Of course, every arsonist that was arrested during the spate of fires is now claiming that he was just an inexperienced sanitation engineer, and that is something the courts will work out.

Neve Tzuf, and many other places, were clearly different. I visited Neve Tzuf last week and walked through many of the more than twenty homes that burnt to a crisp. The fire in Neve Tzuf was not an accident or due to negligence. On Friday night at 10:30 PM, two Molotov cocktails were thrown at the perimeter. Within seconds, the gale force winds had spread the fire on a direct line into the oldest part of the community, and within minutes – 20 minutes – the homes were burned. Families lost their possessions, which can be replaced except for sentimental items like photograph albums that were lost forever. In Bet Meir, an artist lost his life’s work; every painting was destroyed.

In Neve Tzuf, the winds were so powerful that logs caught fire and flew through the air. In one place, fiery logs literally flew over one house (that emerged unscathed) and sailed into the adjoining house. Logs, trees and branches flew all over, and naturally, some wooden homes were ignited. But the bravery of the firefighters halted the progress of the flames, and finally extinguished them – and again, with no loss of life or injury.

And the spirit was astonishing. Within minutes, every family in Neve Tzuf was safely evacuated to the adjacent settlement. A Bar Mitzvah scheduled in Neve Tzuf last Shabbat took place in nearby Aderet as scheduled. Every family has found temporary dwelling, and plans are afoot to rebuild as quickly as possible. The government has been very active in ensuring compensation and swift resettlement. The love of Jews for each other, especially in times of need, is extraordinary and inspirational. And it is what makes the coming tragedy so much more difficult to accept.

The community of Amona, located just a few miles north of Yerushalayim, is slated for demolition and the families for eviction on the first day of Chanuka after a long, protracted and still ongoing legal battle. It is still difficult to understand why there cannot be a resolution that allows the families, residents there for years, to remain in place. There is in the Amona story a toxic brew of politics, religion, hypocrisy, fear, and money. The facts themselves are complicated and it is almost impossible to sift through the conflicted record and ascertain the real truth, but who’s to say the real truth is what matters here?

The crux of the legal entanglement is that Amona was allegedly built on private, Arab-owned land and not on state-owned property, nor was Amona an “authorized” community but an outpost originally built without state approval. After years of litigation, the High Court ruled that the residents of Amona must go, and the Court demanded that the eviction take place no later than the first day of Chanuka.

Then the real complications present: how much of Amona was built on private land? It is not completely clear but residents say about one acre, or less than 1% of the total property developed by the residents of Amona.  Should an entire community be destroyed because 1% or 5% or 10% of the buildings are built on private property?

And this: Who is the private Arab owner whose land was allegedly seized by the residents? Here, all agree that no one knows. No individual Arab ever came forward in any court proceeding to claim that his rights were violated. The lawsuit herein was bought by a number of far-left and some anti-Israel groups who are opposed to all settlements  and who are funded by enemies of Israel in Europe and elsewhere. In effect, the Court is insisting that the Jews be evicted, and their homes destroyed, so the land can be restored to…no one.

Why would the Court do that? Well, among the left in Israel, the decisions of the High Court are the closest they ever come to the authority of Sinai, but it is no secret that the High Court has always been unrepresentative of Israeli society and a bastion of the far left. It has always been reliably hostile to the interests of the settlers and generally to religious Jews, and the presence of a token settler and religious Jew on the Court does not change that, especially when the token justices are ideologically compatible with the left.

Thus, the worst aspect of the judicial system is that the Court is self-perpetuating. It remarkably has long played a decisive role in choosing its replacements, all of which keeps their ideological flame burning. That undemocratic state of affairs is one aspect of governance that Israel’s excellent Minister of Justice, Ayelet Shaked, is trying to change, and she has run into a buzz saw of protests from the left who love their monopoly and use the High Court to impose their viewpoints on the masses that greatly outnumber them.

Add to this mixture the fact that PM Netanyahu has long championed the rights of settlers in Judea and Samaria at the same time he has been finding ways to limit the expansion of settlements. He takes credit in Israel for a sizable increase in the population of Judea, Samaria and Yerushalayim during his tenure as prime minister, while denying across the world that he has anything to do with it. And he feels pressure from Israel’s indefatigable Minister of Education, Naphtali Bennett, of the Bayit Hayehudi Party, who is an unabashed supporter of the rights of Jewish settlement throughout the land of Israel, and wisely wants to stabilize the legal status of the settlements after almost 50 years of living in limbo.

Add to this the fact that the legal status of Judea and Samaria is still undetermined after almost one-half century of Israeli possession. The previous owner, Jordan, left the scene almost three decades ago. The Palestinians are not a sovereign state and Israel refuses to declare its sovereignty. It is a real no-man’s land, except to the extent that Israel administers the territory, and even subsidized the building of Amona – what the court now claims is illegal – through provision of road, electricity, water infrastructure and the like. Complicated – but it is hard to argue that the “government” was unalterably opposed to Amona’s existence.

Isn’t the destruction of homes even built on private land somewhat Draconian? It is well known that there are dozens of Arab homes in Yerushalayim built on private Jewish property, as there as entire Bedouin villages that are illegally on state land between Beer Sheva, Dimona and Mitzpeh Ramon. Would the government ever consider evicting Arabs and destroying their homes? Aside from a few isolated cases because of dangerous code violations, it is not likely to happen. “Equal justice under the law” it is not, even granting the legal casuistries that would find a point or two of distinction between all these cases.

Absent an animus towards the settlers, a fair and equitable resolution is eminently presentable. There are legal doctrines of adverse possession (similar to the laws of chazaka) in a Jewish context that grant possession to new owners who took  possession under color of title and developed the land over a certain number of years. The doctrine prevents the squandering of resources that absentee owners present to a society. This would be normal.

What would also be normal is reference to what in Jewish law is called “takanat hashavin,” an ordinance that is designed to rectify a wrong even if a thief benefits. Thus, if a thief steals a beam and uses it to build his home, and is caught, we do not demand that he remove the beam and thereby dismantle his house. It is enough that he compensate the true owner for the value of the beam. And while the Rema (Shulchan Aruch Choshen Mishpat 360:1) ruled that there is no “takanat hashavin” for land and houses built on stolen land must be destroyed, others disagree (see the Mabit and the Shaar Hamelech for details) especially when the encroachment is minor. Perhaps even the Rema would agree when there are no “owners” that are claiming the property, as in this case, for the Rema underscores the need to return the land to the “baalim,” its true owners. Here, there are no “owners” seeking recovery of their property.

To be sure, to the extent that the settlers are living on private land, the true owners should be financially compensated and, if necessary, furnished with an equal replacement for their lost territory. That would be fair, unless the real objective is to stick it to the settlers.

We should be careful about the rule of law and even about the honor of the Court but even more careful not to become overly legalistic. The rule of law is never deified; in fact, the opposite is true. The Talmud (Bava Metzia 30b) states that Yerushalayim was destroyed because they based all their decisions on strict Torah law and did not act “beyond the letter of the law” when the spirit of the law required it. Will Amona be destroyed because of strict justice that ultimately distorts what is moral and proper?

It would be bitterly ironic if after so many Jewish homes were destroyed by arson, to the great horror of the country, that Jews themselves would destroy other Jewish homes with bulldozers. It would be incredibly sad if such destruction took place on Chanuka, which celebrates the re-dedication of the Bet Hamikdash and the re-assertion of Jewish sovereignty over the land of Israel against the enemies of the day. (Amona overlooks the road where Yehuda HaMaccabee fought some of his battles and entered Yerushalayim.)

Hundreds of Israeli rabbis have signed petitions urging a fair resolution to this crisis that does not involve destruction of Jewish homes and displacement of Jewish families. Many here are hoping that the American rabbinate will offer their support as well. The prospective destruction of Jewish homes is painful to contemplate.

Perhaps it is due time we realize that all of Israel is built on private land? “For the land is Mine, and you are all strangers and sojourners with Me” (Vayikra 25:23). With good will on all sides, a resolution that reminds us that we are all on G-d’s land can be achieved, and together we can celebrate the joys of Chanuka and continue the process of building and settling the land of Israel.