Thursday, February 9, 2017

A Supreme Court Case About Land in Samaria: The village, Amona

borrowed list                                           
Amona, Samaria residents now near Shilo looking at land to build on
Amon was a king of Judah who reigned from 642 bCE to 640 BCE. HIs father was king Manasseh and he ruled for 2 years before being killed by conspirators.  I don't know if that's where their name came from or not.  "
Amona, which was built on land purchased from Palestinian Authority  (PA) Arabs, has been deemed illegal by the Israeli Supreme Court, which has rejected the validity of the deeds to the land provided by the town’s founders.
Nadene Goldfoot
Jordan held Judah and Samaria (West Bank) from 1948 to 1967 June 11th.  )

I've heard it said that Law in Israel is much more complicated than in the USA because you have the Ottoman Empire law and Israel's law to consider, and now I see also-Jordanian law in the mix.  You see it happen a lot in renting homes in Jerusalem, at least back in 1980 when a lawyer friend of ours gave up his practice and decided to teach in high school--another big mistake.    

Israel's Ministry of Defense had to forcefully dismantle Amona, a village near Ofra.  They plan to build a replacement near Shilo of  139 housing units.
Shilo is 25 miles north of Jerusalem in the mountains of Ephraim.  The Ark and Tabernacle were kept there during the period of Judges.  

The village of Amona has been dismanatled by the Israeli authorities after these past 20 years of living there. . The village of 40 Jewish families had prior but illegal claims on it, land that sat on top of a bald mountain in Samaria (northern part of Judea-Samaria "West Bank.") . Israel does try hard to follow the law. I wonder what American lawyers would have said in defense of these families. Two  sides of the debate over this decision are below.  It's a conundrum for lawyers.  

1. Jordan had no right to parcel out lands When the Amona case first reached the Supreme Court, a representative of the land registrar for the IDF Coordinator of Government Activities in the Territories (COGAT) argued that despite the fact that the location was a bald and abandoned mountaintop, there existed documented parcels of land which had been registered by the Jordanian government as belonging to area sheiks and clans. However, as an invading and occupying power, Jordan had no right to award these lands. Jordan’s rule over the "West Bank" was not recognized by the vast majority of UN member states save for the UK and Pakistan, and so this local Arab "ownership" is based on a lie.

2. Only 0.5% of the Amona land is registered to private Arab owners.   After the Supreme Court had ruled in their favor, anti-Israeli NGO Yesh Din, which has been at the forefront of the Lawfare attacks on the Jewish State, decided to sue for damages over the years of denied use of the parcels in question. The problem is that while the Supreme Court does not entertain evidence, lower courts do, and in Jerusalem Magistrate Court it was discovered that out of the nine Arab petitioners, seven own land that is entirely outside the Amona perimeter, and have had no problem working their land had they been so inclined. The remaining two owned only a sliver – about half an acre altogether, out of the 125 acres of the Amona territory – less than .5%. The remaining land is registered to names of non-existent people who do not appear in the 1967 census.
Arresting young woman unwilling to leave Amona
Moving out of one's home is never easy.
Being forced is worse still.  
3. COGAT didn’t differentiate between the parcels with known and unknown ownership Despite the above facts, the COGAT prosecution related to the parcels whose owners are unknown as being privately owned, declaring that some 15 acres in the southern part of the settlement belonged to real private owners. They then told the court that, in fact, there was no difference between the various parts of the community and that the half-acre that became 15 acres was, in effect, indistinguishable from the rest, and the entire community had to come down.

4. The Settlement Arrangements Act does not violate international law Regarding the Settlement Arrangements Act, which the left, as well as senior Netanyahu cabinet officials, are saying violates international law, former Tel Aviv University president and international law expert Prof. Yoram Dinstein has argued that "when an occupier appropriates the power to legislate in an occupied territory, said power belongs to the occupying state and not to one of its organs (COGAT)." In a recent article, Prof. Dinstein has shown how international law is entirely indifferent regarding the particular mechanics of legislation in an occupied zone, be it the local general or be it the government that posted said general in said zone.

5. International law compels Israel to care for the rights of Jewish and Arab resident.   Another popular argument against the Settlement Arrangements Act is that it violates international law because it sanctions the impounding of Arab owned land for the sake of a Jewish community. However, it has been noted that international law compels the occupier to care for the needs of all the civilians under its rule, Jews and Arabs alike, and the right of a government to expropriate private property for public use, with proper payment of compensation (eminent domain) is inherent in exerting such care.

6. The Settlement Arrangements Act is consistent with the pre-67 law in Judea and Samaria This one is quite interesting. Unbeknownst to many, the Settlement Arrangements Act is consistent with the legal systems that were in use in Judea and Samaria before 1967. Both Ottoman law and Jordanian law determine that in a case where a man built and planted in good faith land belonging to another, should the value of the construction exceed the value of the land, the land owner is compelled to receive compensation.
7. Israel legislates retroactively when needed.   Another argument against the Settlement Arrangements Act is that it retroactively alters a court ruling. But the state of Israel regularly legislates retroactively, as in the amendment that reversed many hundreds of court sentences of Arab terrorists, to facilitate the Gilad Shalit deal with Hamas.

8. The Settlement Arrangements Act is not unconstitutional
Finally, the most crucial argument against the Settlement Arrangements Act is that it is unconstitutional – the constitution in this case being Israel’s Basic Laws. Setting aside the paradox whereby one Knesset law is inapplicable in the territories while the same Knesset’s basic laws are applicable – does Israel’s basic law really dictate that 40 families with their 200 children who have lived in Amona for 20 years be evicted to satisfy the alleged rights of two claimants who own less than .5% of the land and have never lived there? Has the court become so immoral as to be the enemy of its constituents without any foundation?

Where is King Solomon when we need him?  Maybe he could find a fair ruling.  

Netanyahu now has decided to build 4,000 homes in Judea-Samaria, and Amona is something he does not want to have to repeat again. That it had to be dismantled is one of the reasons he is going ahead with the building to my understanding. .When you read that his 4,000 is on land owned by private people, etc., understand through this Amona case that it is not at all as easy to distinguish as what would happen in the USA or other countries.  Israel has a 3-ply law, layers of different laws to work through to come to a decision.  

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Nadene Goldfoot

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