Renewed evacuations of outposts, while presumed legal since the defense minister and military authorities have broad powers in Judea and Samaria, raise serious questions about the purpose, fairness and morality of such actions and the law itself.

Although the military commander is responsible for security in the area according to emergency regulations approved by the Knesset, it seems reasonable that he would have to prove the security-related necessity for evacuating outposts. If the reason is political, what law supports these evacuations and, in particular, using the IDF? And if, as former deputy prime minister Haim Ramon said, "in the 40 years since the Six Day War, no government has ever set clear guidelines for construction in Judea and Samaria," how can the outposts be called illegal?

Meanwhile, according to the State Comptroller's Report for 2009, there are more than 100,000 illegal Arab buildings in Israel, and more than 9,000 in Area C, under full Israeli control. Arab building in Areas A and B (under Palestinian Authority control) is unrestricted — and extensive. Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak invoke the rule of law to justify this policy, but it seems to be a matter of politics rather than law. When law enforcement is arbitrary, capricious and selective, it violates the spirit of the law, which becomes self-serving, an end in itself.

Not only does such policy alienate large segments of the population, it has no backing from the cabinet or Knesset. From a democratic, Jewish and Zionist perspective, it strikes at the essence of the country's ideals.

Rule of law is meant as a restraint on government to protect individual liberties; in this case it seems to violate them. Should residents have waited to receive permission before building? Sure, in a fair system. But what is one to do when approval is consistently denied — even for an extra classroom or bedroom — only because the applicant is Jewish? That Jews have the right to build and live in all areas of their historic homeland is a pillar of the state, grounded in international law. When government officials don't apply the law equitably, the authority of the state is undermined. That Israel permits such bias, sanctioned by the Supreme Court, is a national disgrace.

Criminalizing Jews who have done nothing more than building without a permit begs the question, why they've been refused. Whether as a deliberate provocation, a vendetta or a desperate act to gain international support, this policy lacks integrity. Settlements were built not only by residents themselves, but also by agencies of the state, with approval from the highest levels of government. The IDF allowed Jews to build in the area and provided security for them.

CRITICS OF settlements claim that they should (1) be approved by a ministerial committee, (2) have a valid zoning plan, (3) be on land owned by the state and (4) have a municipal boundary set by the regional army commander. Settlements and adjacent "outposts" have tried to comply, despite obstacles. For example, the ministerial committee has met only rarely; plans have been submitted but remain shelved for years, and the regional commander, Maj.-Gen. Gadi Shamni — a leftist — seems to have a personal grudge against settlers.

Approximately 8,000 illegal Arab buildings have been built in Jerusalem alone. Arabs have built on land belonging to Jewish communities, private Jewish organizations like the JNF, public land designated for parks, schools and nature reserves, and Jewish archeological sites. Recently, the government proposed giving most of the illegal Arab buildings legal status retroactively, with compensation, and/or other land in return for allowing the destruction of those built in an archeological area, the City of David.

Often claimed as "private Palestinian land" is land given to individuals, families and villages by Turkish, British and Jordanian rulers in return for loyalty, in payment for services, debts or anticipated tax revenue. Recipients did not buy the land or pay taxes; often they didn't bother to register it. Most of the land, unsuited for agriculture, remained uninhabited until the 1970s, when Jews began to build on what is considered "state land" — unclaimed, uncultivated and uninhabited land "owned" by the sovereign power.

The Israeli government recognized the right of Arabs to acquire state land — miri — through possession and cultivation; it seems to have denied the same right to Jews.
 

ACCORDING TO the Ottoman legal code (used by Britain, Jordan and Israel), cultivated state land is not privately owned, whether or not it is registered. This includes "unallocated or waste areas situated beyond the confines of inhabited regions which can only be rendered cultivable by special effort..." As sovereign power, Israel's custodian of government property is empowered to take possession of lands certified as state; the burden of proof to the contrary was on claimants.

Under common-law practice, moreover, ownership of land given by the sovereign power that was not used within a designated time, usually a decade, or when the owner died without heirs, reverts to the state.

Terms like "illegal settlements" and "occupation of Palestinian land" are not only wrong, they are lethal. They justify terrorism, serve to prevent understanding, undermine Jewish claims to land ownership, ignore precedents and law codes and deny Jewish historical and legal claims to the Land of Israel.

Branded as collaborators and traitors, hundreds of Palestinians involved in real estate negotiations with Jews have been tortured and murdered — officially sanctioned by the Palestinian Authority's "rule of law." Forbidding Jews from purchasing land and building in Judea and Samaria violates the principle on which Israel was founded — the right of Jews to live in and rebuild their homeland. It undermines the country's ethos, its independence and its ability to defend itself.

Editor's Note: I was pleasantly surprised that people referred to the fact that Gaza, Samaria and Judea (the West Bank) are held as an irrevocable trust for the Jewish people by international law. You might wish also to read on the applicable international law: google "Howard Grief" and "Yoram Shifftan" at the top of the page. See also: "Obama's Outpost", here.)

Moshe Dann, a former professor of history, is a journalist living in Jerusalem. Contact him by email at moshedan@netvision.net.il

This article appeared Jun 10, 2009 in the Jerusalem Post
http://www.jpost.com/servlet/Satellite?pagename= JPost%2FJPArticle%2FShowFull&cid=1244371064626

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