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The Next Amona: A Lawsuit Away

Binyamin Rose

High Court’s Unchecked Power Dominates the Knesset

Wednesday, December 21, 2016

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JEWISH RESPONSE Youth joined forces to study Torah in anticipation of an Amona evacuation that never came. But how secure are they in the long run?

I srael will be spared the divisive and destructive spectacle of Jew versus Jew — of police and border guards hauling families from their homes, on Chanukah, no less — thanks to a last-minute agreement to relocate Amona to a nearby hilltop.

However, the next Amona is only a lawsuit away, as left-wing NGOs such as Peace Now and Yesh Din (Volunteers for Human Rights) eye other opportunities to challenge Jewish settlements in Judea and Samaria with claims they were built on Palestinian land.

Eugene Kontorovich, a professor at Northwestern University School of Law, and head of the international law department at the Kohelet Policy Forum in Jerusalem, says ownership of the land on which Amona sits has never been fully determined. “There never was an evidentiary hearing on Amona, and the facts have always been a matter of debate,” says Kontorovich.

Amona was first settled in 1995, with financial assistance from the Ministry of Housing. At the time, less than a handful of Arabs from the nearby village of Silwad claimed they owned a portion of the land, which they used to cultivate grapes. In 2005, Peace Now filed suit in the Supreme Court on behalf of ten Arabs who claimed that nine Jewish homes were built on their land. The court accepted their claim and the Jewish residents were forcibly evacuated. Over the past ten years, more than 40 families returned to renew the yishuv on Amona’s 60 acres, about 20 miles northeast of Jerusalem. Peace Now and Yesh Din filed new suits and the Supreme Court once again sided with the plaintiffs, ruling that Amona had to be demolished by December 25 of this year. It was only after that ruling that a Jerusalem district court convened to review the ownership dispute. According to one report in the daily Makor Rishon, they found just half an acre was Palestinian-owned.

It’s almost impossible to determine ownership of land in Judea and Samaria, which has been governed over the last 100 years by the Ottoman Empire, the British Mandate, and Jordan. Once Israel captured this territory in the 1967 Six Day War, the government assigned authority for zoning, construction, and infrastructure to a body called the Civil Administration.

In an op-ed he penned for the Jerusalem Post, historian Moshe Dann wrote that under Jordanian law, selling land to Jews was punishable by death, so few, if any sales were recorded. Israel’s Civil Administration has preserved this secrecy, by keeping land registration records closed to all those who were ineligible for registration during the Jordanian era from 1948 to 1967 — meaning Jews. One of the goals of the proposed Arrangements Law passed last month by a Knesset committee was to retroactively recognize the legal status of Amona and all other Jewish communities built in Judea and Samaria since 1967. Amona was eventually excluded from this bill, on the advice of Attorney General Avichai Mandelblit, who contends that the Knesset has no right to legislate around a Supreme Court decision.

Attorney General Avichai Mandelblit wields his considerable influence over the Knesset

While Kontorovich suggests that other solutions short of the sweeping Arrangements Law could have been applied to Amona — such as the deal the government and residents finally signed Sunday to relocate 24 of the town’s 42 families to nearby land — he is critical of the system that grants the ultimate decision-making power to the attorney general and Supreme Court.

“The entire argument of the attorney general is contained in a one-sided, one-page letter to the government without any citations,” Kontorovich says. “And the government has no choice but to accept his decision under a crazy doctrine invented by the Supreme Court that the attorney general can in effect prevent the government from adopting certain decisions merely by saying he won’t defend it in court. And then the Supreme Court takes the position that if the government doesn’t listen to the attorney general, then its decisions are presumptively invalid.”

Kontorovich says the lesson of Amona should inspire a fundamentally new approach under which nobody can lose their land or their home without clear establishment of ownership by someone else. However, he warns people not to be fooled into thinking that Amona is a narrow issue of unproven land ownership, or of the wisdom of Israel’s policy to settle Judea and Samaria. “It’s symptomatic of a much bigger problem — the unchecked power of the Supreme Court — that also affects religion-versus-state issues, like the Women of the Wall. It has little to do with Israeli politics and everything to do with the strength of the legal establishment.”

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