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September 26, 2016 / 23 Elul, 5776

Posts Tagged ‘legal’

Legal Group Challenging Police on Criminalizing Entry into Judea and Samaria Area B

Tuesday, August 30th, 2016

Is entering Area B without coordinating it with the authorities a criminal offense? Israeli police have apparently begun to charge Israeli citizens who enter these (few) parts of Judea and Samaria where, according to the Oslo agreements, the PA enjoys civil control and security is managed jointly by Israeli and PA forces.

On Friday, August 26, the Petah Tikva Magistrate Court agreed to a police request to distance a group of 13 Breslov hasidim from Judea and Samaria for a period of 60 days because on Thursday night they had entered the village of Kifil Haras (Timnat Heres, location of Joshua’s tomb), near Ariel in Samaria, to pray at the tomb. The group was attacked by rock-throwing Arabs. Soldiers and police who arrived at the scene promptly detained the Jews.

Kifil Haras is located in Area B, which Israeli citizens may enter at will, just as they are permitted to drive on sections of Route 60 which cuts through the Area B Arab town of Hawara, as well as on the road from Jerusalem to the Jewish community of Nokdim.

Legal aid society Honenu attorney Chai Haber said in a statement Monday that he finds it difficult to understand the police unprecedented approach, “claiming that entering Area B, which is permitted to Israeli citizens, constitutes the criminal offense of ‘public nuisance,’ due to the fact that Arab terrorists throw rocks and endanger the lives of Israeli citizens.”

As is often the case in these hearings, Judge Smadar Abramovitch-Kollende sided with the police and ordered the restraining of all of 13 detainees from entering any part of Judea and Samaria for 60 days.

Haber complained against Israeli security forces who detained his clients. He said that “instead of protecting the worshippers, the IDF and the police decided to detain them. I was not surprised to hear from the police representative during the deliberation that not one of the rock-throwing Arabs had been detained.”

“This is a slippery slope,” Haber argued, adding: “Tomorrow the IDF could decide that instead of dealing with the individuals throwing rocks on the roads, they will detain the Jewish residents driving on the main roads, some of which are in Area B. We will file an appeal on the scandalous decision to distance the worshippers from all of Judea and Samaria.” He also wondered “why it is that the left-wingers who entered [Area A] Ramallah [in June 2016] and were attacked [by local Arabs], were not detained, while the worshippers who entered Area B were detained.”

The police argued that although entry to the Area B village of Kifil Haras is permitted to Israeli citizens, there are scheduled, guarded entries to the village, and because the Breslov group did not coordinate their arrival with security forces they were charged with being a “public nuisance” and with “disturbing a public servant in the performance of his duty.” Police claim that by riding into the village unaccompanied, the hasidim provoked local Arabs’ anger, endangering their own lives and the lives of the soldiers who were sent into the village to protect them. In court, the police argued that a week earlier Breslov hasidim had entered the city of Shechem (Area A) in order to reach Joseph’s Tomb in Area C — which police believed bolstered their demand to bar them from all of Judea and Samaria, including Area C.

As we mentioned earlier, attorney Haber asked police in court whether the rioting Arabs had been detained and was told that none of them had been picked up, because, according to police testimony, security forces did not want to “create a provocation, but rather acted to save the lives of the suspects.”

But they did much more than save their lives, as Haber noted: the Jewish worshippers, some of them only 14 years of age, were detained for interrogation at 3 AM and brought to court only after 2 PM the next day. This was in violation of Israel’s Youth Law. Another violation: their parents were not invited to the court deliberation. Haber said some of the minors complained of police brutality and one of them said that a policeman threatened him with a Taser gun.

JNi.Media

Jewish Settlements are Legal

Monday, August 29th, 2016

The misperceptions, misrepresentations, and ignorance surrounding the general attitude toward the legal status of Jewish settlements in the disputed area of Judea and Samaria (the West Bank), reflects the general attitude toward the unique phenomenon of the reconstruction of the Jewish national home in the Land of Israel.

“Fidelity to law is the essence of peace” opined Prof. Eugene Rostow, a former Dean of Yale University Law School, Undersecretary of State and a co-author of the November 22, 1967 UN Security Council Resolution 242.

Rostow resolved that under international law: “Jews have the same right to settle in the West Bank as they have in Haifa.”
Prof. Rostow determined that according to Resolution 242, which he co-authored: “Israel is required to withdraw ‘from territories’, not ‘the’ territories, nor from ‘all’ the territories, but ‘some’ of the territories, which included the West Bank, East Jerusalem, the Gaza Strip, the Sinai Desert and the Golan Heights.” 

Moreover, “resolutions calling for withdrawal from ‘all’ the territories were defeated in the Security Council and the General Assembly…. Israel was not to be forced back to the ‘fragile and vulnerable’ [9-15 mile-wide] lines… but to ‘secure and recognized’ boundaries, agreed to by the parties…. In making peace with Egypt in 1979, Israel withdrew from the entire Sinai… [which amounts to] more than 90% of the territories occupied in 1967….”

Former President of the International Court of Justice, Judge Stephen M. Schwebel, stated:

“[The 1967] Israeli conquest of territory was defensive rather than aggressive… [as] indicated by Egypt’s prior closure of the Straits of Tiran, blockade of the Israeli port of Eilat, and the amassing of [Egyptian] troops in Sinai, coupled with its ejection of the UN Emergency Force…[and] Jordan’s initiated hostilities against Israel…. The 1948 Arab invasion of the nascent State of Israel further demonstrated that Egypt’s seizure of the Gaza Strip, and Jordan’s seizure and subsequent annexation of the West Bank and the old city of Jerusalem, were unlawful…. Between Israel, acting defensively in 1948 and 1967 ]according to Article 52 of the UN Charter[, on the one hand, and her Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has better title in the territory of what was [British Mandate] Palestine, including the whole of Jerusalem…. It follows that modifications of the 1949 armistice lines among those States within former Palestinian territory are lawful….”

The legal status of Judea and Samaria is embedded in the following authoritative, binding, internationally-ratified treaties, which recognized that the area has been the cradle of Jewish history, culture, aspirations and religion:

(I) The November 2, 1917 Balfour Declaration, issued by Britain, called for “the establishment in Palestine of a national home for the Jewish people….”

(II) The April 24, 1920 resolution, adopted by the post-First World War San Remo Peace Conference of the Allied Powers Supreme Council, incorporated the Balfour Declaration, entrusting both sides of the Jordan River to the Mandate for Palestine: “the Mandatory will be responsible for putting into effect the [Balfour] declaration… in favor of the establishment in Palestine of a national home for the Jewish people.” It was one of over 20 Mandates (trusteeships) established following WW1, responsible for most boundaries in the Middle East.

(III) The Mandate for Palestine, ratified on July 24, 1922 by the Council of the League of Nations entrusted Britain to establish a Jewish state in the entire area west of the Jordan River, as demonstrated by article 6: “[to] encourage… close settlement by Jews on the land, including State lands and waste lands….” The Mandate is dedicated exclusively to Jewish national rights.

(IV) The October 24, 1945 Article 80 of the UN Charter incorporated the Mandate for Palestine into the UN Charter.  Accordingly, the UN or any other entity cannot transfer Jewish rights in Palestine, including immigration and settlement, to any other party.

The November 29, 1947 UN General Assembly Partition Resolution 181 was a non-binding recommendation – as are all General Assembly resolutions – superseded by the binding Mandate for Palestine. The 1949 Armistice Agreements between Israel and its neighbors delineated the pre-1967 ceasefire – non-ratified – boundaries.

According to Article 80 of the UN Charter, and the Mandate for Palestine, the 1967 war of self-defense returned Jerusalem and Judea and Samaria to its legal owner, the Jewish state.  Legally and geo-strategically the rules of “belligerent occupation” do not apply to Israel’s presence in Judea and Samaria, since the area is not “foreign territory,” and Jordan did not have a legitimate title over the area in 1967. Also, the rules of “belligerent occupation” do not apply in view of the 1994 Israel-Jordan peace treaty.

While the 1949 4th Geneva Convention prohibits the forced transfer of populations to areas previously occupied by a legitimate sovereign power, Israel has not forced Jews to settle in Judea and Samaria, and Jordan was not recognized, internationally, as its legitimate sovereign power.

Furthermore, the 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Agreement do not prohibit Jewish settlements in Judea and Samaria, stipulating that the issue will be negotiated during the permanent status negotiations, enabling each party to plan, zone and build in areas under its control. If Israeli construction prejudges negotiation, then Arab construction – which is dramatically larger – dramatically prejudges negotiation.

Finally, the term “Palestine” was a Roman attempt – following the 135 CE Jewish rebellion – to eradicate Jews and Judaism from human memory. It substituted “Israel, Judea and Samaria” with “Palaestina,” a derivative of the Philistines, an arch enemy of the Jewish people, whose origin was not in Arabia, but the Greek Aegian islands.

The campaign against legal Jewish settlements in the disputed – rather than occupied – area of Judea and Samaria is based on gross misrepresentations, fueling infidelity to law, which undermines the pursuit of peace.

{Yoram will be in the US in September and November, available for speaking engagements}

Yoram Ettinger

New Group Lending Legal Representation to Farmers Who Shoot Arab Burglars

Thursday, August 18th, 2016

Farmers at the Forefront, an initiative of the Regavim NGO whose mission is “to ensure responsible, legal, accountable & environmentally friendly use of Israel’s national lands and the return of the rule of law to all areas and aspects of the land and its preservation,” is offering free legal representation to Israeli farmers who have shot criminal invaders on their property.

“Feel abandoned? Afraid to sleep at night? Need counseling and legal defense? We’re on your side,” says a press release from the new organization, which sees itself as a bulwark against the plague of burglaries in Israeli owned farms both inside the green line and in Judea and Samaria.

The Regavim press release describes dozens of calls the group is receiving from farmers asking for legal counseling regarding invasions of their agricultural plots as well as their private domains in Kibbutz, Moshav, and private communities. One such individual was a farmer from the Aviam moshav in the Golan, who has endured years of harassment by criminals from the nearby Bedouin town of Tuba-Zangariyye. Two years ago he was attacked by three Bedouins who tried to injure him but was able to defend himself. The criminals then filed a complaint against him with local police which confiscated his legally licensed handgun.

Another was a framer from Yavne’el who’s been suffering from invasions of his grazing lands by the Bedouin villagers of Rumat al-Heib, who cut down his fences and cause additional damages. Finally they stole cows from his barnyard, and when he complained to police, the Border Guard policeman who arrived to investigate stole one of his calves, then closed the file “for lack of public interest.” After the Farmers at the Forefront became involved on the farmer’s behalf the case was reopened and the robber policeman was indicted.

“We believe that once there’s an address for the farmers to turn to, the burglars will understand eventually that it doesn’t pay to mess with them,” declares Farmers at the Forefront. “We can’t continue to abandon Israel’s farmers in the field, literally. They guard our land, so we will guard them, and until the State does what it’s supposed to — we’ll do it.”

If you’ve recently shot a burglar on your farm or need any other kind of advise on your thieving villager neighbors, write to agro.law@regavim.org or call 02-547-0022.

JNi.Media

Shurat HaDin: World Vision Rejected our Warnings about Funding Hamas Terrorism

Thursday, August 4th, 2016

For the past four years, Tel Aviv based civil rights center Shurat HaDin has been warning that funds provided to Gaza by the world’s largest evangelical charity World Vision were being utilized for terrorism, the organization said in a statement Thursday, following the indictment by Israel of Mohammed El Halabi, a Hamas terrorist and senior WV employee who is accused of transferring as much as $50 million in charity funds to support Hamas terrorist activities.

In 2012, Shurat HaDin notified the Australian government that its aid money administrated by World Vision was being transferred to front charities of Palestinian terror groups in Gaza. Both the Australian government and WV rejected Shurat HaDin’s warning.

In 2015, Shurat HaDin again cautioned the Australian government that WV was operating as an active arm of the PFLP and other terror groups. WV chief executive Tim Costello vehemently denied the charges and claimed that WV had “no interest in supporting terrorism.”

However, as of this week, Shurat HaDin’s warnings against WVA have been proven true. Israel’s internal security service has arrested a senior employee of World Vision ver the course of several years, to Palestinian terror organization Hamas.

According to Shurat HaDin President Nitsana Darshan-Leitner, “for years we have been warning that WV is funding Palestinian terror groups in Gaza. WV has repeatedly denied our charges and refused to seriously investigate where its funds are going. They assured us that the organizations they fund had been vetted and were not engaged in terrorism. Who knows how many of Hamas’s missiles and stabbing attacks were funded by WV after they were put on notice that theey were financing Palestinian terror. The assistance to Gaza by foreign aid organizations is directly responsible for the murder of scores of Jews in Israel.”

David Israel

Israelis Raise More than $120 Thousand Overnight for Hebron Shooter’s Legal Defense

Monday, July 11th, 2016

Former MK Sharon Gal (Yisrael Beiteinu) has proven that everything people have been saying about the burgeoning Israeli rightwing majority whose power has only begun to be unleashed is absolutely true. Gal, who hosts a show on economics on rightwing TV Channel 20, found out that the attorneys for IDF medic Sergeant Elor Azaria had not been paid and that as a result the defense for the 19-year-old soldier was facing obvious difficulties, took to the crowdsourcing Headstart website where in about 12 hours he raised more than the needed amount — and the money is still pouring in.

Gal told the Headstart visitors — as of 10 AM Monday there were 3,297 donors who left the equivalent of $120,098.67 — that he will continue the collection to create a fund for future cases in which IDF soldiers who carry out righteous shoots against Arab terrorists are taken to court by their own army.

On March 24, which was also the holiday of Purim, Sergeant Azaria arrived on the scene of a terror stabbing outside the Jewish community of Hebron, where one stabber was dead and the other lay next to him on the ground. Azaria shot the second terrorist dead, an act that would have at most resulted in a disciplinary hearing within his military unit, but, an Arab B’Tselem employee was on hand to document the event and the video went viral. This resulted in the entire military apparatus becoming prosecutor, judge and executioner of the exemplary soldier, who received official recognition as Outstanding Fighter. From the defense minister down, they all condemned the yet to be investigated act. And so, rather than receiving a slap on the wrist, Azaria faced a murder charge, which was later reduced—under pressure from an outraged public—to manslaughter.

The trial is in full swing these days in a military court in Jaffa, and the Azaria family was running out of funds fast. At which point their countrymen took out their credit cards and gave and gave.

The IDF Spokesperson’s Office responded that “Azaria is an IDF soldier who is entitled to a fair trial. Despite the fact that he had the option of taking a military defender for free, he opted to take a civilian attorney.”

Of course, the military prosecution did exactly the same thing: preferring not to rely on their home-grown talent, the prosecution conscripted one of Israel’s top litigators, Nadav Weisman, to lead its team, so, to play fair, the IDF should have paid for the defendant’s outside legal help, too. But the IDF spokesperson had nothing to say about that.

JNi.Media

Legal Advisor Permits Reform’s Mixed Prayer Protest at the Kotel

Thursday, June 16th, 2016

Israel Patt, the legal advisor of the Ministry of Religious Services, on Thursday determined that the Kotel Rabbi cannot legally prevent the mixed afternoon prayer being planned by the Reform and Conservative in the Kotel Plaza.

The decision to hold the mixed service—in the common area leading up to the men’s and women’s section—was reached by the leadership of both movements in Israel in response to the confrontational prayer service with a mehitzah-divider that was conducted on Tuesday by Jerusalem Chief Rabbi, the Rishon Lezion Rabbi Shlomo Moshe Amar — on the platform at the southern section of the Kotel officially reserved for mixed prayers.

The mixed prayer protest in an area that is not intended for prayer at the Kotel Plaza, had been planned originally to protest the collapse of the Netanyahu government promise to provide “egalitarian” services at the Kotel, which has been reneged on due to fierce objections from the Haredi coalition partners.

Rabbi Shmuel Rabinovitch, Rabbi of the Western Wall and the Holy Sites of Israel initially requested legal advice regarding his authority to use police forces to remove the participants in a mixed service from the plaza.

In an urgent response letter he sent to Rabbi Rabinovitch, Patt insisted that “After examining the issue, after consulting the relevant legal authorities, and on the opinion of the Attorney General, we’ve reached the conclusion that under the current circumstances there is no room for you to exercise your authority to prevent mixed prayer in the upper Kotel plaza.”

The intended mixed prayer service is planned not for the “Kotel sundeck” platform erected by former Religious Services Minister Naftali Bennett (Habayit Hayehudi) in 2013, which was re-divided and staked by Rabbi Amar on Tuesday, but rather in the area of the plaza which is past the security check post and before the side-by-side men’s and women’s sections.

The Movement for a Jewish State on Wednesday appealed to the Justice Minister and the Chief of Police to prevent the mixed prayer service in its planned location, calling it a violation of the law and a show of contempt for the legal authorities.

Some photos from the prayer protest can be seen here.

JNi.Media

Syria (Today) and ‘Palestine’ (Tomorrow) II

Wednesday, September 18th, 2013

As I noted last week, what is currently taking place in Syria closely resembles what we can ultimately expect in a future “Palestine.”

In principle, and contrary to his beleaguered country’s overriding legal rights and security interests, Israeli Prime Minister Benjamin Netanyahu agreed to a Palestinian state back in June 2009. Yet Mr. Netanyahu, more or less prudently, conditioned this concessionary agreement on prior Palestinian “demilitarization.” More specifically, said the prime minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”

In fact and in law, this published expectation offers no effective obstacle to Palestinian statehood, or to any subsequent Palestinian war against Israel.

Neither Hamas, now subtly closing ranks with its once more powerful Muslim Brotherhood mentors in post-Morsi Egypt, nor Fatah, whose “security forces” were recently trained by American General Keith Dayton in nearby Jordan at very great American taxpayer expense, will ever negotiate for anything less than full sovereignty. Why should they? Supporters of Palestinian statehood can readily discover authoritative legal support for their stance in binding international treaties.

Easily misrepresented or abused, international law can generally be manipulated to serve virtually any preferred geo-political strategy, a jurisprudential twisting sometimes referred to as “lawfare.” For example, pro-Palestinian international lawyers, seeking to identify self-serving sources of legal confirmation, could conveniently cherry-pick pertinent provisions of the (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and/or (2) the 1969 Vienna Convention on the Law of Treaties.

Israel, as an existing sovereign state, has a basic or “peremptory” right to survive. From the standpoint of the government’s responsibility to assure citizen protection, a responsibility that goes back in modern political thought to the 16th century French philosopher, Jean Bodin, and also to the seventeenth-century English theorist, Thomas Hobbes, this right is also a fixed obligation. It was, therefore, entirely proper for Netanyahu to have originally opposed a Palestinian state in any form, an opposition, incidentally, once shared by Shimon Peres, himself the proudest Israeli champion of a “two-state solution.”

To wit, in his otherwise incoherent book, Tomorrow is Now (1978), Peres had said the following about Palestinian statehood:

The establishment of such a state means the inflow of combat-ready Palestinian forces into [Judea and Samaria]: This force, together with the local youth, will double itself in a short time. It will not be short of weapons or other military equipment, and in a short space of time, an infrastructure for waging war will be set up in [Judea, Samaria] and the Gaza Strip…. In time of war, the frontiers of the Palestinian state will constitute an excellent staging point for mobile forces to mount attacks on infrastructure installations vital for Israel’s existence.

In writing about “time of war,” this former prime minister had neglected to mention that Israel is already locked in a permanent condition of war. The war, not “tomorrow” (whatever that was intended to signify) is now. Pertinent target “infrastructure installations” could include Dimona, and also a number of other presumably vulnerable Israel nuclear reactor facilities.

Any Israeli arguments for Palestinian demilitarization, however vehement and well intentioned, are certain to fail. International law would not even expect Palestinian compliance with any pre-state agreements concerning the right to use armed force. This is true even if these compacts were to include certain explicit U.S. guarantees. Moreover, per the Vienna Convention on the Law of Treaties, because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could prove to be of little or no real authority.

What if the government of a new Palestinian state were somehow willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab regime could have ample pretext to identify relevant grounds for lawful treaty termination.

A new Palestinian government could withdraw from the treaty-like agreement because of what it regarded as a “material breach,” a reputed violation by Israel that allegedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this doctrine is known as a “fundamental change of circumstances.”

Louis Rene Beres

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/syria-today-and-palestine-tomorrow-ii/2013/09/18/

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