In June of 2005 the Supreme Court did what everyone in Israel presumed it would: It deemed that summer’s looming disengagement from Gaza to be legal.
Out of 11 judges who dealt with the matter, there was only one in dissent. Justice Edmond Levy, an Iraqi-born, religious former Likud member, a judge who had sentenced Yitzhak Rabin’s murderer to life, a champion of both human rights and the court’s right to judicial review, penned a passionate, historically detailed opinion favoring settlers’ rights to the land of Israel over the right of the Knesset to withdraw its sovereignty and citizens from Gaza.
Some three months ago, Prime Minister Benjamin Netanyahu asked Levy, now retired, to head a committee charged with examining land ownership and construction in the West Bank.
Levy’s findings, which some feel could threaten the integrity and authority of the attorney general as the sole provider of legal directions to the government, and which others view as a potentially long overdue balm to institutional bias, are due to be delivered in the coming days.
Levy’s committee is finalizing its report precisely as Netanyahu and many of the ministers who surround him find themselves trapped between their constituents and their ideology on one hand, and the attorney general and the Supreme Court on the other.
In two recent High Court of Justice cases, both indicative of a more pervasive issue across the West Bank, the state, as represented by the State Attorney’s Office and the attorney general, conceded that settlement neighborhoods, on land claimed by Palestinians, were indeed built on private land and therefore had to be dismantled. The court did not investigate the land claims, which related to the Migron outpost and the Ulpana neighborhood in the settlement of Beit El. The judges merely accepted the state’s position and set firm and final dates for demolition (of Migron by August 1 and of the Ulpana neighborhood by July 1).
Two MKs, from the Jewish Home and National Union parties, drafted legislation that would negate the court’s verdicts. Netanyahu, according to the National Union’s Yaakov Katz, last week “begged him” to hold off with the legislation for two more weeks. By then, presumably, the committee headed by Judge (ret.) Levy will have submitted its findings to the prime minister — at which point Netanyahu could have new ammunition to use against the attorney general or, if necessary, ample time to usher court-bypassing legislation through Knesset, most likely from behind the scenes.
On paper, Levy’s panel cannot concretely impact the status of Migron, Ulpana or the 9,000 or so other settlement homes built on land whose ownership is disputed by private Palestinian claimants. But recommendations from the panel could prove highly significant nonetheless. If the committee’s findings or recommendations are at odds with the position of the State Attorney’s Office and the attorney general, they could well trigger a demand for a rethink inside those offices. And if its findings or recommendations are at odds with the rulings of the Supreme Court, they could potentially serve as ostensible legitimization for legislation to bypass the court.
Netanyahu has indicated he opposes such legislation, but if an esteemed committee, led by a former Supreme Court justice, were to intimate that the attorney general had, on the basis of a misinterpretation of the law, mistakenly led the court down the path to demolition, would the prime minister still stand in the way of court-bypassing legislation? Some critics of the prime minister, indeed, privately suggest that he established the committee, with Levy at its head, for precisely this purpose.
Levy, with his judicial background, would presumably not wish to see his panel’s findings utilized to belittle or usurp the court on which he served. But were his panel to conclude that the State Attorney’s Office and the attorney general had failed to uphold appropriate settlers’ rights, it would likely say so, learnedly and scathingly.
A panel with a wide mandate
Netanyahu and Justice Minister Yaakov Ne’eman appointed the committee in February. The letter of appointment states that the committee is to report its findings within three months; that all recommendations are subject to the opinion of the attorney general; that the committee is to be headed by Levy; that its members are to use the state’s March 7, 2001 statement to the High Court of Justice regarding construction on private land as the basis for their findings; that they are to recommend actions that would enable the legalization of existing settlement on private land “if possible” and to otherwise recommend “removal”; and that they are to “properly,” and “in accordance with the principles of justice,” consider changing the procedure in which land ownership claims are verified in the region. Additionally, they are free to recommend, based on their own considerations, “any other matter that is connected to the aforementioned subjects.”
Yesh Din, the human rights group that brought the Palestinian land claims cases before the High Court, has refused to cooperate with the committee, claiming that its very existence undermines the standing of the attorney general. “The desire to strengthen the rule of law obliges Yesh Din to present its comments to the (holder of the) sole function that should advise the government of Israel on legal matters: the Attorney General,” Yair Rotlevy wrote to the committee.
He argued, on behalf of the organization’s public council, that the establishment of an advisory committee for a governmental authority, without the express consent of the attorney general, was a violation of the 1998 Shamgar Committee’s findings on the authority of the attorney general as head of both the state prosecution and the legal adviser to the government.
Several days after Netanyahu appointed the committee, Attorney General Yehuda Weinstein wrote a letter to the prime minister. The text, as quoted in the Maariv daily, seems devoid of consent. “It shall be clarified that the committee’s work will not, in and of itself, serve as cause to alter the state’s position, as submitted to the court, on the matter of the removal of buildings unlawfully constructed,” he wrote. “The decision regarding the need and justness of submitting a request for a delay in court proceedings shall be taken by me on a case by case basis.”
Talia Sasson, the author of a government-commissioned report on unauthorized outposts, a member of the left-wing Meretz Party and a former department head at the State Attorney’s Office, said that the committee represented a reversal in the proper flow of authority. “The government is not supposed to instruct the State Attorney’s Office but precisely the other way around,” she said, adding that despite the message conveyed in the letter, Weinstein has thus far not displayed “an unusual determination to act against the wishes of the government.”
On the other side of the political divide hopes remain high that Levy, who made an impassioned argument against the legality of the disengagement from Gaza, along with the two other members of the committee – Tel Aviv Municipal Court Judge (ret) Techiya Shapira and former ambassador to Canada and legal adviser to the Ministry of Foreign Affairs Attorney Alan Baker – will offer the legal tools that the government has lacked when attempting to pursue its settlement policy.
Dr. Harel Arnon, a Jerusalem-based lawyer, appeared before the committee recently as the representative of the Binyamin Regional Council, an area that includes both Migron and the Ulpana neighborhood. In writing and in oral argument before the members of the committee he contended that the policy of removal of all private structures on private land “needs to be redesigned… especially as pertains to construction performed in good faith or in the event that the property in question is situated on absentee land.”
Citing Ottoman law, Arnon claimed that the state of Israel, in the Ulpana neighborhood, for example, has no legal right to demolish the buildings. The Amana organization, the settlement-building arm of the movement, purchased the land on June 29, 2000. Although Arnon admitted that the man who sold the land to the company was “apparently not the rightful owner,” Ottoman law, much like Israeli law, states that if land is purchased in good faith and then built upon, the competition of claims is resolved on the basis of what is worth more, the land or the structures built upon it. Since in this case the buildings are more valuable, he said in a recent interview, the settlers should be instructed to offer the true landowner monetary compensation. Moreover, “the destruction of the buildings, in the name of protection of the owners, offers them – at the expense of those who built the buildings – succor that is not theirs at all and harms, unnecessarily, the Jewish settlers.”
Good faith, of course, is subject to judicial review, and Amana’s case is currently being heard in Jerusalem municipal court.
Arnon’s second contention is that the land on which, for example, most of Migron rests, is absentee land – owned by individuals who left the region in 1967 and have not returned – and that therefore the state may, in accordance with both international law and military law, lease the property to Israelis even for the purpose of civilian settlement, which would increase the worth of the property.
Hagit Ofran, the director of the settlement watch at Peace Now, who also appeared before the committee despite reservations regarding its legitimacy, called this “a legal opinion that sanctions the theft of land,” claiming that the construction of settlements on absentee land was a violation of the state’s duty “to safeguard” the land for its rightful owners.
The committee members
Arnon’s interpretation of state rights as concerns absentee land, however, is also an opinion shared by at least one member of the Levy-led committee. On January 22, 2012 Baker, the English-born former ambassador to Canada, co-authored with Arnon a legal opinion on the matter of absentee land. This contended that the state, under certain circumstances, was free to lease the land to civilians and that “if and when the absentee returns and proves ownership over the land he may enjoy the improvement and the fruits (of the land) preserved for him as he enjoys the ownership of a flourishing property.”
Former Judge Techiya Shapira has less of a legal footprint on the matter of settlement and land usage in the West Bank. None of the legal experts with whom The Times of Israel spoke could recall a ruling by her that pertained to this issue. She does, however, have strong roots in the settlement movement. She is the daughter of Rabbi Shlomo Goren – a champion of the settlement movement and a firm believer that the Israeli victory in 1967 was a stop on the path to redemption – and a granddaughter, on her mother’s side, of the “Monk Rabbi”, David Yehuda Cohen, a disciple of Rav Kook’s.
As for the third member of the committee, Judge Levy, as a religious Jew, a native of Iraq and a former Likud mayor of Ramle, “his appearance on the landscape of the Israeli Supreme Court was quite unusual,” according to Israel Radio legal affairs commentator Moshe Negbi. His nomination for the court was considered to be part of a quid pro quo whereby then-justice minister Meir Shitreet would get his pick, Levy, while the then-Supreme Court President, Justice Aharon Barak, would get his – the secular human rights advocate Ayala Procaccia.
As is often the case when politicians handpick a judge, Levy has proven far more complex than his resume may have implied. Although the Supreme Court has never overturned a State Attorney’s Office plea bargain, Levy opposed the initial deal that attorney general Menahem Mazuz made with president Moshe Katsav. (Katsav ultimately rejected the deal and was convicted of rape.) And in his final opinion, published in January 2012, after he had retired, he was in the minority again when he opposed the Citizenship Law, which denies Palestinians the right to Israeli citizenship when marrying Israelis. Against the sentiments of virtually all right-wing politicians, he argued that in this case the security of the state of Israel could be served by “the safeguarding of human rights.”
Negbi compared him, in principle, to Justice Hugo Black, an FDR appointment to the US Supreme Court, who had been a member of the Ku Klux Klan in his youth and turned out to be a champion of civil rights on the court. “Even when you think you are appointing X you can always get Y,” he said, noting that the Haaretz daily published an editorial against the nomination of Haim Cohn to Israel’s Supreme Court in 1960 because he had supported David Ben-Gurion’s “very anti-democratic legislation,” and Cohn turned out to be the strongest advocate of civil rights ever to have served on the Israeli courts.
On one matter, however, Levy, who refused a request to be interviewed for this article, has been predictable: the Jewish right to settle anywhere between the Jordan River and the Mediterranean Sea. On June 9, 2005, he wrote, as the lone dissenter on an 11-judge panel, that the government’s decision to withdraw from Gaza and the law passed by Knesset to the same effect “both require the same cure – to be cancelled and to be passed from this world…”
The dissent, a 61-page argument that is “the most judicially activist opinion imaginable” according to Negbi, claims that the legislation not only violates settlers’ land ownership rights and endangers Israel and represents a breach of contract between the Likud Party and its voters, among other things, but also clashes with Israel’s Declaration of Independence and the Basic Law: Human Dignity and Liberty and calls into question what Levy believes to be the inviolable, internationally recognized Israeli right to settle in the land of Israel.
There should be no talk of the temporary nature of Jewish settlement on the lands taken during the Six-Day War, Levy wrote, for “the right of Jews to settle in Judea, Samaria and the Gaza Strip draws its strength from the same source that afforded Jews the right to settle in Nahariya, Ashdod, Ashkelon, Ramle and Lod.”
To question that right in the West Bank, he seemed to imply, is to call the entire Zionist enterprise into question.