To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means. – Thomas Jefferson, September 20, 1810
In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark. Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded as political representatives of minority groups have come to realize that political arrangements and public policies agreed upon in majoritarian decision-making arenas are likely to be reviewed by an often hostile Supreme Court. As a result, the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda… – Prof. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2004.
I confess that over the past five years, I have used these citations in several articles dealing with the growing encroachment of the judiciary into the sphere of politics—and indeed, increasingly into the realm of common sense and natural justice.
However, I make no apology for lack of originality in re-cycling them this week. For in light of the Amona fiasco, the message they convey has never been more apt, more instructive and more compelling.
Only one grim political reality
There are of course divergent legal interpretations of events that led up to the fate of the community of Amona. Likewise, there can, of course, be differing chronological narratives of what transpired in the past, and why.
But at the end of the day, there remains only one grim political reality.
In essence, as any course on Political Science 101 will (or at least should) reveal, politics is a social science discipline that focuses on the administration of power and influence. It is the field of human endeavor that deals with whose will prevails over whom.
Accordingly, in the final analysis, whichever way you slice it, the only political reality that remains is the following: A small radical “Left-wing” splinter group, with miniscule domestic public support and generously funded by foreign government sources, masquerading as a “human rights” organization to further their anti-“settlement” political agenda, managed to impose its will on the incumbent democratically-elected government,
allegedly the “most Right-wing” in the country’s history. Not only did the government prove unable to preserve the community set up two decades ago and endorsed by all its predecessors since 1996, but it failed to prevent its total demolition.
This vividly illustrates the veracity of my previous diagnosis of the disturbing dysfunctionality of governance in Israel, in which marginal civil society entities, financed by taxpayers in foreign countries, can not only “stymie the policies the government was elected to implement [i.e. preserve the Jewish communities in Judea-Samaria], but … [compel it] to implement measures it was elected to prevent [i.e. the demolition of Jewish communities in Judea-Samaria].”
“The law is an ass”?
While there may be various conflicting accounts of how and why Amona came to be established on its current site, there can be little doubt, that given the prevailing realities that have emerged on the ground after two decades, one thing is beyond dispute: By any conceivable criterion of common sense and/or natural justice, the decision to evict the residents and to raze the homes to the ground is staggering.
For not only is it a decision that will benefit no-one involved, other than the malicious radical ideologues, who initiated the legal proceedings, but it will undoubtedly contribute to the steep ongoing erosion of public confidence in the judiciary, in general, and in the Supreme court, in particular.
Legal systems are not immutable products of natural laws. They are the result of human decisions which evolve over time to reflect various changes in prevailing circumstances and societal perspectives. Things once sternly forbidden, can later be permitted (say, homosexuality). Conversely, things once allowed, can later be forbidden (say, smoking in public places).
Without such adaptions to changing realities, whether political, societal or technological, prevailing laws may well be perceived as anachronistic, irrelevant, even unjust and hence unenforceable.
Clearly, given the Amona fiasco, and after half a century of Israeli administration of Judea-Samaria, the time has come for a rethink of the structure of the legal apparatus required for future governance of these areas. But this is a challenge that requires considerable political resolve, and even more ideo-intellectual commitment and clarity—something that has been disturbingly conspicuous by its absence in successive “Right-wing” governments to date.
Therein lies the rub
Indeed the dire need for change was succinctly expressed by Caroline Glick this week when, commenting on Amona, she aptly remarked that “the existing legal system is incapable of protecting the civil and legal rights of either the Israelis or the Palestinians living under it.”
After all, it is not difficult to imagine outcomes that would serve the civil and property rights of both Jewish residents and the Arab plaintiffs far better than eviction and demolition. However, any other such alternative would involve material compensation to the alleged Arab owners of the disputed land. But therein lies the rub.
As Glick notes: “In Amona, 40 Israeli families are about to be thrown out of their homes because Jordanian law doesn’t allow Jews to…purchase land from Palestinians and the Palestinian Authority has made selling land to Jews a capital offense.”
So the real legal obstacle to any amicable settlement that will not trample the rights of either the Jewish residents or the Arab plaintiffs is the Arab legal system that Israel permits to operate in Judea-Samaria.
Thus, even assuming their claims to the land are valid, Arab claimants are precluded, on pain of death, of accepting any material offer, no matter how generous, that would allow the Jewish residents to continue to live in the homes they have occupied for years with the approval of successive Israeli governments –both “Left” and “Right”.
This, of course, tears away the mask covering the true motivations of the radical Left instigators of the legal action for the evacuation of Amona, and exposes their professed concern for human rights as nothing more than a farcical façade.
For they clearly care nothing about the human rights of the Jewish residents ,who were given every reason to believe that their community was sanctioned by the government, and are quite happy to see them stripped of their property and thrown to the wolves.
Moreover, they do not really give a hoot about Palestinian human rights either.
For if they did, surely their efforts would be directed against the draconian capital punishment laws that prevent Palestinians from making unfettered decisions on how to maximize the benefits from their property ownership, without the threat of execution hovering over their heads.
Indeed, condoning this kind of threat entrenched in the Arab legal code smacks of blatant Judeophobia and certainly should not be brooked by the Jewish state or any of its institutions. Accordingly, the removal of such menacing obstructions to free interaction between potential buyers and sellers should be a prime objective for anyone genuinely concerned with the preservation of civil and property rights of both Jews and Arabs in Judea-Samaria.
Root of all evil: Failure of political will
But the legal system is not empowered to change itself. For that political enterprise is required.
Accordingly, to rationalize and standardize the legal system for Judea-Samaria and to remove the brutal preclusion of asset acquisition by Jews, the Israeli political leadership must… lead. But this has been something it has been painfully loath to do for decades. Indeed, it has been almost four decades since Menachem Begin managed to break the Labor Party’s hegemonic grip on power in Israel. Since then, apart from several short interludes, the government has been headed by prime ministers drawn from the ostensibly “Right-wing” Likud, favorably inclined towards maintaining and securing a sizeable Jewish presence beyond the pre-1967lines. Indeed, much of the support it acquired from the voters was due to this professed inclination.
As the Amona debacle dramatically demonstrates, under existing conditions, even decades of existence and sustained government support cannot ensure the durability of Jewish presence on the land.
Sadly, government after government has failed to fulfill the spirit of their electoral pledges, allowing the state of legal limbo, and resulting legalistic labyrinth, to persist, never able to muster the political will to enact what is necessary to ensure the permanence of Jewish presence in the cradle of Jewish history.
Mindless, myopic—and malevolent
Israel’s misplaced reticence in staking Jewish claims for political control of the ancient Jewish homeland has led to a situation of dangerous ambivalence and a sense of impermanence—something that has heartened and emboldened its adversaries
This is a situation that can only be remedied by a bold political initiative which inevitably will entail imposition of Israeli sovereignty, or at least Israeli law, to Judea-Samaria so that situations such as Amona can be averted/resolved by means of some rational system of compensation.
(This, of course, leaves open the question of the fate of the Arab population resident in these territories. But this, however weighty, is a separate issue and one I have addressed in repeatedly in the past – see here . Accordingly its discussion must be left for some future opportunity.)
To drive home the point, a sum of upward of NIS 150 million is reportedly allocated for the demolition of Amona and relocation of the evacuees. Imagine if a small fraction of this sum —say 5% —was offered to the Arab claimants for their tiny rocky plot of land on the windswept hills of Eastern Samaria.
Indeed, this simple example demonstrates just how mindless, myopic—and malevolent—the demolition of Amona really is.
For with an iota of goodwill, alternative outcomes, which would benefit all parties—except for those intent on undermining Jewish presence in Judea-Samaria—were easily available, and which would have left the Jewish residents in their homes and the Arab claimants vastly better off—either with generous financial remuneration, or ownership of alternative land.
But legalistic intransigence and political dogma would have none of that.
Signaling impermanence of Zionist endeavor
The Amona demolition entails a myriad of detrimental effects.
– It has left hundreds of Jews displaced and deprived of their homes;
– It has deprived the Arab claimants of maximizing the benefits of their property; – It has diverted millions of shekels in the state budget, required to cover the cost of demolition and relocation of the Amona evacuees, from other worthy causes.
But perhaps more than anything, much like the 2005 Disengagement in Gaza, it sends a clear and unequivocal signal to the country’s adversaries that no product of Zionist endeavor is permanent. With sufficient patience and ingenuity, everything the Zionists build will be destroyed—perversely, often by their own hand!
It is difficult to overstate the pernicious effect this will have on future stability, and firm steps must be undertaken to ensure that these are held in check.
Those radical ideologues, who initiated the process to demolish Amona, must be taught that their spiteful efforts will be counter-productive and that their endeavor to curtail the development of Jewish communities in Judea-Samaria will bring about precisely the opposite effect.
They must be shown that, even within today’s legal framework, for every house demolished, three more will be built—until the Government of Israel can summon up the political will, and the ideo-intellectual courage to extend Jewish sovereignty over all the land—from the River to the Sea.
Unless it can do that, the Amona debacle will mark a strategic defeat for Zionism. For, it will clearly demonstrate that those wishing to uproot Jews from their homes in the Jewish homeland proved that they could impose their will on those who wished to prevent it.
Dr. Martin Sherman