The State of Israel rightfully prides itself on being the only democracy in the Middle East. It also takes pride in being a country in which the rule of law prevails. That is no small matter in a country that has had to contend with wars and acts of terrorism throughout the 64 years of its existence and presently faces what might be an existential threat. It is probably without parallel in other democracies throughout history that have had to deal with the kinds of emergencies with which Israel must contend.
No wonder that in territory whose legal status is ill-defined - under Israeli administrative jurisdiction but not Israeli sovereignty - problems arise that present the judicial system and the government with complicated legal problems that on occasion seem almost insoluble. It is precisely in these cases that a good dose of common sense may be more suited than legal argumentation, and can point the way to what should or should not be done.
Such was the case of the Israeli settlers who lived for years in the Gush Katif settlement bloc, had broken no laws, and had enjoyed the support of successive Israeli governments - until the Sharon government decided to order the Israel Defense Forces to forcibly remove them from their homes as part of its disengagement policy.
The government decision involved a blatant violation of the civil rights of thousands of Israeli citizens, and a petition against it was filed with the High Court of Justice - the ultimate protector of the civil rights of Israeli citizens and all those living under Israeli sovereignty or Israeli jurisdiction, the ultimate arbiter of complaints against injustice and unlawful acts. The court, nevertheless, upheld the government's decision.
In retrospect, the massive uprooting of so many Israeli citizens from their homes, by force, is now seen by many as a gross miscarriage of justice, similar to the case of the expulsion of U.S. citizens of Japanese origin from their homes in World War II. That government decision was also upheld by a supreme court and regretted in later years. In both cases, force was used against citizens who had violated no laws.
Now we are faced by another conundrum. What to do about the Ulpana neighborhood of Beit El, whose residents have been living there for well over a decade with the approval of successive Israeli governments? It turns out, after many years, that some of the land on which the neighborhood was built is owned by inhabitants of a neighboring Arab village. Does that mean the presence of the residents of the Ulpana neighborhood is illegal and that their homes should therefore be destroyed? That seems to be the opinion of our defense minister, who says he will not countenance anything that is "illegal."
Is it really that simple? Do the families living in the neighborhood have no rights? Is land ownership in Samaria, which may stem from the times of the Jordanian occupation, the British Mandate or Ottoman times, really that clear-cut? What effect do the death threats made to Arab landowners who sell their property to Jews, or the intricate real estate transactions that are the result, have on the validity of land ownership claims? And even if the Arab ownership recently discovered is indisputable, does that mean families that have been living in their homes for years must now be forced out? Is that the only solution, or are there other ways to dispense justice to both sides in this complicated case?
The obvious solution, which seems to escape the minds of some of our legal scholars, is to provide compensation, in money or land, to the owners of land now occupied by the Ulpana neighborhood. Considering the fact that the landowners waited for years before putting forth their claim, thus creating a situation in which families established themselves in the Ulpana neighborhood without knowledge of these claims, this seems like the fairest way of dealing with the problem. Forcing people out of their homes may be legal, but it is also wrong.
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