Photo Credit: HaKol HaYehudi
Givaot Itamar

Last week, in another decision that aroused the ire of the political right in Israel, the Supreme Court struck down the Judea and Samaria Settlement Regulation Law. The law, passed in 2017, allowed the government to retroactively legalize Jewish residences constructed on what later turned out to be land owned by Arabs.

The court ruled that the Regulation Law “violates the property rights and equality of Palestinians, and gives clear priority to the interests of Israeli settlers over Palestinian residents.”

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According to the law, if after construction of a home in certain areas of Yesha, it was proven that the land on which it stands belonged to Arabs, the original property owner would be compensated at 125 percent of the value of the land or given an alternate property. The law was frozen shortly after its inception as leftist groups appealed to the Supreme Court, maintaining that the Knesset enactment was unfair.

The law was passed due to Arabs who, with the aid of leftist organizations, came forward, often many years after the fact, protesting the building of hundreds of Israeli homes on land they claimed to own. They filled the courts with their assertions, which were often false or unprovable, but which nevertheless threatened the homes of thousands of Jews.

Yaacov Sela lives with his family in Givaot Itamar, a small hillside enclave near Itamar in the Shomron. Two years after the community was established, an Arab claimed the property had belonged to his family for generations. When the Regulations Law was passed, Sela said his family breathed a sigh of relief. Now, they don’t know what the future will bring.

He told The Jewish Press, “There are several houses here which now face the possibility that Israeli bulldozers will show up early one morning, or in the middle of the night, and raze the buildings to the ground.”

He said, however, that he was “not surprised by the decision of the Supreme Court.”

“Unfortunately, it is a political mafia. Its decisions are predictable in advance. Time and again, they vote against the settlers of Yesha. The judges of the Supreme Court won’t rest until they oust all of the Jews from Judea and Samaria,” he said.

Attorney Nati Rom, a human rights lawyer, who focuses on issues related to Judea and Samaria, told The Jewish Press, “Today is a sad day for democracy, as well as a difficult day for the Jewish citizens of Judea and Samaria, for Zionism, and for the entire country. Overturning the Regulation Law for being ‘unethical’ is completely unfounded, and the attempt to compare the rights of citizens to the rights of non-citizens is fundamentally wrong.

“Unfortunately, we are not far from the day the Supreme Court will obligate Israel to pay pensions and unemployment to those living in Ramallah and Shechem for ‘ethical reasons.’ From here, it is only a downward cycle. My hope is that the Zionist members of Knesset will understand that the only option at this point is a systematic change in the appointment of Supreme Court judges, as soon as possible.”

The Jewish Press asked Rom for more details on the law and the Supreme Court decision:

Can you briefly describe the legal battles surrounding Jewish homes built on land the Arabs claim as their own?

The controversies usually occur in Yesha communities established by Gush Emunim pioneers, or other idealists who came after them, and who built homes in vacant areas without having done extensive property research beforehand or in cases where homes were built outside the original boundaries of a settlement.

When the different governments of Israel, including those led by the Labor Party, sanctioned the inchoate settlements that began to appear on the map of Yesha in the 1970s, no Arabs came forward claiming ownership of the lands in question. In the case of larger communities, like Ariel and Ma’ale Adumin, which Likud governments initiated by themselves, the areas were carefully surveyed beforehand to make sure there were no conflicting land claims where the towns and cities were to be constructed.

The court suits which arose in recent years, with a clearly political agenda, is a new phenomenon made possible by a holdover law from the Ottoman period that said that land once cultivated by a certain party remained in his possession even though it was never legally registered. Suddenly, Arabs, recruited by leftist groups, came forward claiming that they or their fathers had planted olive trees on the site or grazed their sheep there.

How does the court’s decision compare to decisions regarding illegal Arab building?

The illegal building on the part of the Bedouins comes to thousands of structures in dozens of unlawful communities that were established on state land without permission. Radical leftist groups requested the Israel Supreme Court to order the state to grant retrospective approval, legalizing these unsanctioned encampments, which have encroached on vast tracts of land, almost surrounding Beer Sheva.

Last week, The Supreme Court ordered the government to officially recognize these Bedouin homes and communities even though they never acquired the plots of land in question. Now, in the Court’s annulling the Regulation Law, when it comes to Jews, it has decreed the exact opposite, not allowing the Government to retroactively approve an Israeli home built (even if unknowingly) on Arab property, even though the Arab would receive generous compensation, or an alternate piece of property of equal value.

How can the system of appointing judges be changed?

Unlike America where Supreme Court judges are appointed by the president, in Israel the appointments are made by a committee, the majority of whom are members of the Supreme Court, and there’s a clause guaranteeing that the Supreme Court has veto power over the choices. This gives the existing judges the ability to favor candidates who think the same way as they do.

This effectively blocks the ability of the Justice Minister, or the government, from picking the judges they want. Furthermore, the committee is not open to public scrutiny, so the selection process is surrounded by darkness, with no possibility of opposition.

The path to reform requires a change in the way the judges are chosen, so that the presiding government can appoint judges who share the same worldview. In this way, the will of the voter is respected, and a private junta can’t commandeer the Supreme Court’s make-up.

In response to the uproar in affected Yesha communities, Prime Minister Netanyahu, and Knesset Members on the right, promised that they would enact new legislation to sidestep the “draconian decree” of the Israeli Supreme Court.

However, Justice Minister, Avi Nissenkorn, from the Blue and White Party, insisted that there would be no new clause overruling the Supreme Court’s decree as long he was in office.

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