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Op-Ed: What is Really Behind the Yesha Demolitions?
Moshe Dann
Moshe Dann
Moshe Dann is a writer and journalist living in Jerusalem.On September 12, Chief Justice Dorit Beinish rendered a highly controversial decision, based on an unwritten policy she had been using, which broke with traditional interpretations of law, yet, the media (with the exception of Arutz Sheva, the Hebrew Makor Rishon and Beshevaed.) largely ignored it.
In a case brought by Peace Now against neighborhoods ("outposts") in the Binyamin communities of Eli, called Hayovel, where Eliraz Peretz's widow and children live and Harisha, in the Talmonim bloc, Justice Beinish directed the State, i.e. Civil Administration for Judea and Samaria, to determine what constitutes State land.
According to her ruling, all land not specifically designated as State Land would henceforth be considered "private [Palestinian] land," by default, rather than unowned land.
She also gave the State 60 days to provide a schedule for destroying all (Jewish) building on "private land," with the exception of the Peretz home; Major Peretz was killed in a battle with Hamas terrorists in March, 2010.
This ruling radically shifts the burden of proof from Arabs who claim that their land was taken illegally and places it on Jewish communities who claim the land is not privately owned and available for settlement. Since there is no appeal from her decision, unless the Knesset acts, her decisions constitute the law.
Justice Beinish decision overrides important distinctions and categories of land established by prior administrations and accepted by Israeli courts. Her ruling redefines which lands are to be considered "disputed" and seems to accept at face value Arab land claims that have not been verified and lands which Arabs have simply expropriated illegally.
Moreover, since Israel has not declared sovereignty or annexed land beyond the 1949 Armistice lines (except for eastern Jerusalem and Golan) Beinish's ruling could apply to many other areas in Judea and Samaria as well. Not only "hilltop" communities like Migron, Amona, Givat Asaf, and Havat Gilad are vulnerable; large parts of Ofra, Bet El, Eli, Elon More and others would be targets for destruction.
At issue is what constitutes "State land" and "private Palestinian land." According to Israeli law, questions of land ownership in Judea and Samaria are decided by the Civil Administration in conjunction with the State Prosecutor's Office (in the Ministry of Justice); both have been accused of pursuing anti-settlement policies.
Decisions about land ownership should be based on impartiality, objectivity and professionalism; often influenced by political agendas, they are not. In the absence of documentation and detailed land surveys, for example, the Civil Administration relies on old aerial photographs for evidence of the land once being worked, which are used to support claims of ownership.
NGOs and Arabs often cite maps produced during the British Mandate to claim land and contest Jewish settlements. But these maps, as Dr. Dov Gavish explains in his authoritative Survey of Palestine, 1920-1948 (2005), were fiscal maps, often arbitrary and inaccurate, not proofs of ownership.
Since "State land" means ownerless land that was once controlled by Turkish, British and Jordanian administrations, then Israel, as the sole legitimate sovereign successor seems to have full legal rights to the land. That would include all conditions, restrictions, obligations and responsibilities attached to the land.
Similarly, land which had been gifted or designated by the state to an individual, clan, or village, but was not used, abandoned property, and land in which the owner dies intestate reverts to the State by law.
Beinish's ruling seeks to overturn the meticulous work of respected expert Plia Albeck, who directed the Civil Department of the State Prosecutor's Office for 24 years, until she was fired by Attorney General David Libai in 1993, when Yitzhak Rabin became Prime Minister. During her tenure, Albeck was responsible for determining land ownership and provided the legal basis for establishing Jewish communities in areas acquired by Israel in 1967.
Using Ottoman/Turkish, British and Jordanian law, Albeck, who died in 2005, defined many areas in Judea and Samaria as State land, thus allowing their subsequent designation for settlement. She describes (and defends) her work in Land Use in the West Bank (2002) (in Hebrew), published by Ariel College of Judea and Samaria.
Attempting to reverse Albeck's efforts for his own agenda, then PM Ariel Sharon, in 2004, when he was formulating his plans to withdraw from the Gaza Strip and Northern Shomron, hired Taliya Sasson, a member of Peace Now and formerly an attorney in the State Prosecutor's Office. Her report in 2005 castigated government agencies for their involvement in settlement building, sought to redefine State land, and asserted Palestinian claims that all settlements were illegal. Justice Beinish seems intent on implementing Sasson's report.
Claims that Jews have stolen and built on "private Palestinian land" should be decided by competent objective authorities based on evidence in courts of law – not by politically motivated individuals and advocacy groups.
The larger question, however, is to whom this disputed territory belongs. Since "Palestine" was never a separate legal or sovereign entity, designating land as "Palestinian" or belonging to "the Palestinian people" lacks accuracy and authenticity.
Ironically, Justice Beinish's decision to make the question of landownership in Judea and Samaria subject to Israeli civil law may provide the basis for establishing sovereignty over and extending the State's jurisdiction to areas currently under military control. That would be a step forward for Israeli democracy and fulfilling the historic mission of the Jewish people in the Land of Israel.
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Howard Grief
Attorney and Notary
13/2 David Goitein Street,
Pisgat Ze'ev Mizrah, 97782 Jerusalem, Israel
Tel. (Fax): 972-2-656-0085
E-mail: GriefIsrael@yahoo.com
Jerusalem 16 Iyar 5771
May 20, 2011
The Right Honourable Mr. Stephen Harper,
Prime Minister of Canada,
Ottawa, Canada
Your Excellency,
As a devoted friend of the State of Israel who has earned the everlasting gratitude of the Jewish People for your outspoken and unstinting support of the Jewish State of Israel in the face of its many detractors, I wish to bring to your kind attention the most important document of international law that paved the way for the establishment of an independent Jewish State in what was known in the past as Palestine. This document is the San Remo Resolution that was adopted at the San Remo Peace Conference on April 25, 1920 by the Prime Ministers of Great Britain (David Lloyd George), France (Alexandre Millerand) and Italy (Francesco Nitti), as well as Japan, represented by its Ambassador, K. Matsui. This peace conference was convoked for the express purpose of carving up the defeated Ottoman Empire and distributing mandates for the new states that were then being created. Among those states was Palestine, which the Supreme Council of the Principal Allied Powers had decided would become the Jewish National Home and future independent Jewish State, as evidenced by the recorded minutes of the Conference. That, it must be emphasized, was the sole reason Palestine was created as a mandated state, and not for any other reason. The same San Remo Resolution adequately met Arab national aspirations by also creating the new states of Syria and Mesopotamia, later re-named Iraq, in addition to those already being established in the Arabian Peninsula, Egypt and North Africa, numbering 21 in all.
By virtue of the San Remo Resolution, the Arab peoples received more than 95 percent of the territories comprisng the Middle East, while Palestine was allotted exclusively for Jewish self-determination, as can easily be verified by the statements made by those British and other Allied leaders who at the time were instrumental in crafting the global political and legal settlement for the Middle East, that resulted from the adoption of the San Remo Resolution.
How important was the San Remo Resolution? It was, as just indicated, the document that shaped the modern Middle East and as regards Palestine, it was described as "the Magna Carta of the Zionists" or the national charter of freedom of the Jewish People by the British Foreign Secretary, Lord George Nathaniel Curzon, in a letter to Prime Minister David Lloyd George shortly after the San Remo Peace Conference. As a result the legal existence of the State of Israel is directly traceable to the San Remo Resolution and not, as commonly believed, to the UN General Assembly Partition Resolution of November 29, 1947.
It is also very important to understand that there was never any intention to create an Arab state in Palestine. The Mandate for Palestine incorporated the San Remo Resolution in the first three recitals of its Preamble and was, in fact, a detailed elaboration of it. As just noted, Arab self-determination was fully satisfied in the adjoining territories of Syria, Iraq and Arabia, but Palestine was reserved exclusively for the Jewish People to reconstitute the ancient Jewish State of Judea destroyed by Rome, as stated by Lord Arthur James Balfour himself.
As the foundation document of the State of Israel under international law, the San Remo Resolution continues in force till the present day mutatis mutandi, with the State of Israel taking the place of the Mandatory Power, Great Britain, for putting into effect the Balfour Declaration in all parts of Palestine, especially in Judea and Samaria, the ancient cradle of the Jewish People.
All Jewish legal rights to Palestine set down in the San Remo Resolution and the Mandate Charter and related documents were preserved intact by Article 80 of the UN Charter, as well as under the doctrine of estoppel and Article 70(1)(b) of the 1969 Vienna Convention on the Law of Treaties. That means it is illegal to create a 22ndArab state in Judea and Samaria that was part and parcel of the Jewish National Home, as explicitly determined by the Franco-British Boundary Convention of December 23, 1920.
Mr. Prime Minister, your support of Israel will be even more pronounced upon your acquainting yourself with the provisions and principles of the basic documents of international law that led to the creation of the State of Israel, that are either ignored today or willfully dismissed by most Western Governments. You can gain additional information about these documents by consulting my book, The Legal Foundation and Borders of Israel under International Law (2008). While Jewish legal rights are firmly implanted in international law, there is, on the other hand, no binding document of international law that provides for the creation of a new Arab state in former Mandated Palestine. In this respect, UN resolutions do not constitute international law, nor does the Road Map Peace Plan or other similar initiatives.
In these days of incessant attacks upon the legitimacy of the State of Israel, and repeated calls for Israel to withdraw to what are clearly indefensible "Auschwitz-like" borders that existed prior to the outbreak of the Six-Day War on June 5, 1967, the lies and fabrications concerning Israel can be effectively refuted by citing the true meaning of the San Remo Resolution and the Mandate for Palestine, which designated Palestine as the Jewish National Home. Israel's rights to the land cannot be legally taken away by the UN or by any other body, just as Canada's rights to its own land cannot be legally taken away by the UN. If reality were otherwise, the rights of all states would be in jeopardy.
I urge you, therefore, Mr. Prime Minister, to mention the San Remo Resolution whenever you relate to the question of who has the right to Palestine and the Land of Israel. That right belongs exclusively to the Jewish People and its devolee, the State of Israel. No new Arab state can thus be legally created in Judea and Samaria, where it would imperil Israel's very future and serve as a means to destroy it, as is evident to any impartial observer.
Most respectfully,
Howard Grief, Attorney
Resident of Jerusalem, Citizen of Canada and Israel
Sincerely,
Robin Ticker
Activist emails sent to my list are L'Ilui Nishmat Yisrael ben David Aryeh ob"m (Izzy - Kaplan) a great activist and lover of Eretz Yisroel, Am Yisroel and the Torah. Yehi Zichrono Baruch.
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