In July settlers celebrated a report which argued that Judea and Samaria are not occupied territory, but the State Prosecution dismissed it out of hand • Now Prime Minister Benjamin Netanyahu has announced that he plans to adopt some of the report's conclusions just ahead of next January's elections • Attorney-General Yehuda Weinstein disagrees • The stage is set for a clash.
19 October '12..
It will probably happen very soon: The report on the legitimacy of settlements, compiled by retired Supreme Court Justice Edmond Levy — the legal alternative to the report drafted on the topic by attorney Talia Sasson in 2005 and the prosecution's crackdown on outposts — will most likely be brought to a vote by the cabinet, and, in all likelihood, be adopted by the government, at least in part. The proposal has already been prepared. It will try to circumvent international opposition to the basic premise behind the report: Judea and Samaria are not occupied territory. It will do that by focusing on the report's practical recommendations, which will effect a true revolution. Now Prime Minister Benjamin Netanyahu, under pressure from the Right, is awaiting Attorney-General Yehuda Weinstein's word.
For many years, the settlers were winning the battle over land, but losing the war of perception to the Left. They only fully internalized this insight after the 2005 withdrawal from Gaza, when decades of hard work, construction and creativity were wiped away in a matter of days. In more recent years, as the leadership was replaced and the media became friendlier and more balanced, the battle of perception gradually leveled out and the settlers internalized another important insight that they had earlier dismissed: in order to stake a claim on territory, or on perception, they must also stake a claim in the legal arena, and amass victories there.
But particularly in that arena, the one the Levy report tried to tackle, they suffered heavy, precedent-setting defeats over the last year. Migron, the largest outpost in Judea and Samaria which housed dozens of families, was evacuated in accordance with the court's ruling. The Ulpana neighborhood — one of the permanent neighborhoods in Beit El — was also evacuated under court order. This week, the defense ministry will begin disassembling the buildings in Ulpana in order to relocate them. Outposts Givat Assaf and Amona are expected to meet similar fates. And the left-wing activists behind these evacuations — Peace Now and Yesh Din, among others — are still going strong.
The State Prosecutor's Office and the High Court of Justice have also been drawn into this attitude shift, viewing Judea and Samaria as occupied territory. To top it off, the so-called arrangements bill, a law that sought to circumvent the High Court ruling stipulating the evacuation of disputed land, was defeated by the Knesset. Just then, when it seemed that all was lost in the legal arena, a ray of light shone precisely from the legal direction: the Levy committee. The members of the committee, tasked with examining the legal status of the communities, outposts and land in Judea and Samaria, took their work seriously and presented a legal alternative to the Sasson report and its recommendations, which currently guides the state prosecution.
Levy, a retired Supreme Court justice, and his colleagues, former Foreign Ministry legal adviser Alan Baker and retired Tel Aviv District Court Judge Tchia Shapira, concluded that contrary to the Sasson report and the prosecution's policy, Judea and Samaria are in fact not occupied territory from a legal perspective. The Levy committee gave the state the tools to act on this conclusion, and tore to shreds, while sparing no criticism, the existing orders and policies that military and civilian courts and the Civil Administration have been enacting against settlers.
For a minute there it seemed to the settlers that their woes had borne something positive: the Levy report, created to fill a deep legal gap, reminded them of another solution that was good for them borne of a grave situation — the detour roads solution that resulted from the security threats following the Oslo Accords. The detour roads brought the communities in Judea and Samaria much closer to big population centers in Israel and greatly accelerated the development of these communities. But, to their dismay, the Levy report was abandoned in recent months, and the government refrained from discussing it or adopting its many conclusions.
The report drafted by the honorable justice and his colleagues became, in effect, an unenforceable document. Furthermore, the Civil Administration and the civilian and military courts continued to adhere to the Sasson doctrine, and the guidelines set by former Deputy Attorney-General Mike Blass, who recently stepped down, which were hostile toward the settlement enterprise. Not only did they ignore the Levy committee conclusions, they stepped up their use of the very military orders that the Levy report bitterly criticized.
There is no shortage of examples: Levy and his team recommended the establishment of a court designated to rule on land disputes. In this way, the decision over disputed lands, over which both Jews and Palestinians claim ownership, would be taken out of the Civil Administration and the State Prosecutor's Office's hands and obviate the need for High Court intervention in every such case. Such a court was not established, and the bureaucrats' reign continues.
The state, just as the Levy report describes, has in effect taken the Palestinian side. Even in recent months, in almost every claim of private Palestinian land ownership, the case becomes an excuse to enact the usual proceedings against Jewish farmers, even if the land in question has been held, and cultivated by Jews for many years. That is precisely what is happening now in the southern Hebron hills, with Mordechai Deutsch's greenhouses and with Dalia Har-Sinai's (the widow of Yair Har-Sinai who was murdered by Hamas terrorists) agricultural land. That is also what is now happening with the vineyards cultivated by Elisha Meidan in Avigail and with other agricultural land in Assael.
A legal tool called an illegal use order, which the Levy report described as "draconian" and recommended repealing, is still in active use. This order has allowed, and still allows as long as the Levy report isn't adopted by the government, the Civil Administration to enact legal proceedings against anyone who claims ownership over land that is not state owned, even if no local residents make a counter ownership claim, and evacuate the property. The Levy committee couldn't understand how "agricultural cultivation of land that is not owned by the state and has no claimants could possibly pose a threat to public peace."
Furthermore, the committee members wrote that "it seems that the inventors of this order made it their personal goal to prevent the Israeli settlement enterprise in Judea and Samaria from expanding its borders."
The attorneys who tried to help Jewish farmers survive such orders in recent months found them difficult to surmount. One of them, attorney Amir Fleischer, approached the head of the Civil Administration seeking to freeze the issuance of these orders, but the administration replied that "in the absence of new guidelines, we will continue to operate with the existing tools."
The groundwork is ready
The ministers on the Right were aware of what was going on, but their efforts to bring the Levy report to a ministerial debate failed. Ministers Gilad Erdan (Likud), Yuli Edelstein (Likud), Uzi Landau (Yisrael Beytenu), Gideon Saar (Likud), Moshe (Bogey) Yaalon (Likud), Yisrael Katz (Likud) and Daniel Hershkowitz (New National Religious Party) tried to take action on the issue. Erdan even proposed a collective resignation of all Likud ministers from government in protest over the State Prosecutor's Office bullying. He even went as far as to suggest that Netanyahu hire a private attorney to represent the government in the High Court of Justice in such cases instead of the state prosecution, but the prime minister rejected the idea.
Despite the extreme tension within the ministerial committee, in recent weeks the ministers from the Right and Netanyahu have reached an understanding that the Levy report will be brought to a vote by the entire government, before the upcoming elections. In a recent conversation with Israel Hayom, Vice Prime Minister Ya'alon surmised that the Levy report would be adopted by the government: "I was one of the people who pushed for the establishment of the [Levy] committee when I saw the damage caused by the Left's High Court petitions and the Sasson report. Sasson's tenets rested on the legal foundation that suited previous governments. She looked at Judea and Samaria as occupied territory that will eventually be handed over to the Palestinians."
"That sentiment certainly doesn't reflect the views of the current government. We had a problem with Defense Minister Ehud Barak's oppositional behavior and the legal behavior displayed by the prosecution. The ministerial committee on settlement affairs that has been established has taken away Barak's exclusive authority over these matters, and the Levy committee laid down a more appropriate and suitable legal foundation," he said.
Ya'alon, one can easily glean from the conversation with him, has a serious problem with the State Prosecutor's Office. "The prosecution's answers to the High Court have set into motion a very negative process in which the court changed its ruling on the status of territory in Judea and Samaria until it became unclear what came first, the chicken or the egg, the court's position or the prosecution's position. The Levy report resolves this conundrum, and I believe that it will be adopted."
"It is important to keep in mind," Ya'alon said, "that the government guides the attorney-general on anything having to do with formulation of policy, not the other way around." And indeed, three months before the elections, it appears that a window of opportunity has opened, making the adoption of the Levy report a distinct possibility:
• The diplomatic climate surrounding Israel's relations with the U.S. has improved. U.S. President Barack Obama is busy fighting presidential candidate Mitt Romney, and since relations with Israel have become a key factor in the battle, the American administration's response to Israel's adoption of the report may not be as strong now as it would "normally" be.
• Likud ministers are currently seeking to ensure their re-election in the upcoming primaries, and therefore want to please party members, many of whom are supportive of the settlement enterprise. This increases the pressure on them to bring the Levy report up for debate.
• Deputy Attorney-General Mike Blass, the greatest opponent of the settlers within the prosecution, has now left his post, and has been replaced by attorney Dina Zilber, who is considered more moderate and balanced in her views.
• Cabinet Secretary Zvi Hauser, who will also soon step down to vie in the Likud primaries, has already prepared a proposal on the Levy report and is very interested in seeing it through before leaving his current position.
However, there is one person who has voiced reservations regarding the adoption of the report: Attorney-General Yehuda Weinstein. He has already clarified that he is not bound by the report's conclusions or its recommendations, and has now issued a sweeping directive preventing the government from making serious policy and budgetary decisions before the elections. Everything, therefore, is up to Netanyahu now.
"An unnecessary and cumbersome demand"
Netanyahu is well aware of the advantages in adopting the report: an "industrial calm" from both settlers and the High Court during the next term, assuming that he is re-elected for a third term as prime minister. But he is also aware of the pitfalls of the report: a confrontation with the EU and an Obama-led U.S. Regardless, the end-of-term Netanyahu on the eve of elections is a more daring politician.
Barak's recent decision to allow settlers to return to a disputed home between Kiryat Arba and Hebron, in accordance with a court's ruling that the home was purchased legally from the Arab owner, didn't come from nowhere. If it were up to Barak alone, he would have come up with an excuse to prevent them from moving back in, and would have withheld the approval they require from him.
But when Barak found out that Netanyahu, in coordination with Saar and other ministers, was planning to propose instructing the Civil Administration and the IDF Central Command to approve the purchase of the property, he rushed to head them off and pushed the approval through.
The absence of an approval of purchase, which, according to the Levy report, was unnecessary in the first place, is still holding up the completion of the purchase of another disputed home near the Tomb of the Patriarchs in Hebron. The settlers living there were evacuated several months ago. The Civil Administration announced that it had found alleged flaws in the purchase process.
Coalition Chairman MK Zeev Elkin (Likud), who saw the document, felt that it was nothing more than abuse of settlers by administration litigators and a violation of the settlers' rights. Indeed, the administration's letter gives the impression that the sole purpose of the demand (for approval of purchase), as Levy wrote, "is to prevent the purchase of land for settlement in areas that could raise diplomatic or security problems."
This is an "unnecessary and cumbersome demand, because after all, its purpose — to regulate the settlement in Judea and Samaria — can be achieved by demand anyway, when a settlement in that area requires a government decision by individuals who are also authorized to oversee the construction," Levy wrote. In any case, the Right is trying to enlist Netanyahu's support in this case as well.
The Right is also seeking, by way of the Levy report, to get approval for the appeals committee ruling on the issue of the Jewish families in Beit Ezra in Hebron. On this issue, too, there is a dispute between the prosecution, which seeks to evacuate the families, and most of the members of the ministerial committee on settlement affairs, who want to allow the families to continue to live there.
Baker, a member of the Levy committee, told Israel Hayom that the Israeli public misguidedly believes that the report should be adopted in its entirety. "The basic tenet, that the territories are not occupied, stands on its own, and we stand behind it, obviously. But the main thing is to adopt the 15 very practical recommendations that aim to infuse order into the chaos surrounding disputed ownership of land in Judea and Samaria and to create a legal body that will oversee this issue." Baker lamented that the report has not yet been discussed or adopted by the government.
A surprising source of support for many of the report's arguments came this week from someone who, for years, was seen as a bitter legal rival of the settlement enterprise — Col. (res.) Shlomo Politis. Between 1994 and 2004 Politis served as the legal adviser in the Central Command, which has jurisdiction over Judea and Samaria. Politis served in this delicate position under prime ministers Netanyahu (his first term), Barak and Ariel Sharon.
He was considered very knowledgeable in the area of property ownership in Judea and Samaria, and when approached this week he said decisively that "the central conclusion reached by Levy and his colleagues, that the Jewish settlement in Judea and Samaria does not violate international law, is solid" and it "falls in line with the High Court rulings on the topic."
Politis, like Levy and his team, thinks that many of the unauthorized communities and outposts built on state-owned land can be legalized, all it takes is a decision by the political echelon. "Many of the outposts and communities were built on the basis of a wink from a senior government minister, including Ariel Sharon, and with the encouragement of government budgets, even if there was no official authorization. I saw it with my own eyes," he said.
Politis, like Levy, recommends that Israel "remove the administrative authority over land disputes from the bureaucrats and legal officials and establish a legal body that will deal solely with this issue, the way the system works within the Green Line." Politis may have a number of reservations regarding the report, but he insists that "the government can certainly afford to adopt large portions of it."
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