The Law is an Ass? Blame the Lawyers

When did the government take the decision, in complete disregard of the rights of those people who had made their homes on territory they mistakenly believed had been legally acquired?

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By Moshe Arens

(A version of this column appeared in Haaretz on June 13, 2012.)

“The law is an ass – an idiot”, exclaimed Mr. Bumble, the character in Charles Dickens’ novel Oliver Twist, about a law which seemed to him to be completely unreasonable. There were no doubt a number of laws in eighteenth-century England that were contrary to common sense. That is not the case in modern-day Israel. The law in Israel is certainly not an ass, and it is to be obeyed.

We pride ourselves on being a country in which the rule of law prevails. And yet, when watching the Knesset State Control Committee discussing the legal entanglements that led to the final High Court of Justice’s decision to order the demolition of five buildings in Beit El’s Ulpana neighborhood by July 1st, one couldn’t help but think of Mr. Bumble. Common sense was most certainly not the victor here.

The court order to remove 400 Israeli citizens from their homes in Beit El no doubt pleased all those who are convinced that Jewish settlements beyond the 1949 armistice lines are illegal and need to be removed sooner or later. And those who oppose the policies of the Likud-led government applauded the final outcome, and relished the resulting embarrassment of the Netanyahu government.

Harabi Hassan, the Palestinian resident of the neighboring village Dura al-Kara, who claims ownership of the land, is now satisfied, though he still has to prove ownership in the district court. But what about the families who had, for years, been living in their Ulpana homes, who had believed that they were legally entitled to be living in those homes? Do they have any rights under Israeli law?

Conflicting claims of land ownership are not uncommon in areas where borders have shifted over time. This is particularly true in Judea and Samaria, where different rules of law have applied over the years – British, Jordanian, Ottoman, Roman, and even Biblical law in ancient times. Legitimate owners of land have left or died, or else delayed putting forth their claims in court, while others have taken up residence on their property. There are too many such cases in Israel and in the territories beyond the 1949 armistice lines to count. In these cases it seems obvious that, in addition to the rights of the claimant, once they are proven, the rights of those already living on the contested land must be taken into account before judgment is passed.

It is only common sense that a reasonable settlement would not dispossess the current residents, but instead would adequately compensate the legitimate owner for the loss of his land. That is the result that one might have expected in the Ulpana case. So why was it not the result we saw?

One has to follow the High Court of Justice proceedings on this matter in their entirety, going back to the year 2008, to begin to understand the end result. After successive petitions and judgments, the government, in response to one particular petition, declared on May 1, 2011 that it intended to demolish the buildings in question as part of a larger decision to demolish buildings built on private property. The die was cast. When at the end of 2011 the government petitioned the court, stating that it intended to reconsider that decision, the court decided to teach the government a lesson: It rejected the government’s petition out of hand and ordered that the buildings be demolished by July 1st.

When did the government take the decision, in complete disregard of the rights of those people who had made their homes on territory they mistakenly believed had been legally acquired? Is it the court’s task to teach the government a lesson, and to prevent it from reevaluating a decision it had previously taken? If so, blame the lawyers. It was they who created this imbroglio out of which nothing good is likely to come.

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