"We have to recognize the fact that sovereignty over the Temple Mount belongs to God," says Prof. Ruth Lapidot. "My suggestion is not to discuss sovereignty over the Temple Mount at all, because neither side will be willing to agree to make concessions - neither the Jews nor the Arabs." Lapidot, who will be receiving this year's Israel Prize for Legal Research, is an expert on international law and deals with the subject of sovereignty, among others. "Sovereignty is something intangible. What is important is to divide the powers in a logical and reasonable manner," she says, pointing out the late King Hussein of Jordan also suggested transferring sovereignty of the site to God - but he meant all of the Old City.
As for former U.S. President Bill Clinton's suggestion, to divide sovereignty of the Temple Mount in levels - with the Muslims on top, on par with the mosques, and the Jews below, in the spaces behind the Western Wall - Lapidot is less than enthused.
"It's really bubbe meises (old wives' tales). Something of a fiction," says Lapidot. "It's possible if the sides want it, but it's more logical to say that the sovereignty belongs to God. It's also more suitable both to the Jewish religion and to the Muslim religion, because both religions say that the entire land belongs to God."
In anticipation of receiving this year's Israel Prize for Legal Research, Lapidot would pay credit where credit is due - to the institutions in which she is active. She teaches at the Faculty of Law and the Institute for International Relations at the Hebrew University in Jerusalem. She is the head of the department for continuing studies in the academic track at the College of Management. Finally, she conducted her studies - an important consideration for the judges in granting her the prize - in an arrangement with the Jerusalem Institute for Israel Studies.
The personal history of Lapidot, 75, is in many ways the history of the peace process. If she sees her work on the issue of Jerusalem as the pinnacle of her research, the high point of her political activity, in her opinion, was her role in representing Israel in the arbitration group that attempted to solve the conflict between Israel and Egypt over the Taba area.
Why was that more important than involvement in formulating peace agreements with Egypt or the establishment of the multinational force?
"Because it was much more difficult. The very fact that the arbitration and the conflict ended contributed to an improvement in relations with Egypt."
Her broad involvement in searching for solutions to the issue of Jerusalem seems divorced from reality at a time when Hamas is coming to power in the Palestinian Authority. But Lapidot says that when it comes to Jerusalem, even before Hamas came to power "not only was there no partner, but there is Israeli and Palestinian legislation that prevents any possibility of compromise." On the other hand, she says, "just because right now there is no chance whatsoever, this is the time to prepare a file. Because if any change takes place, we will very quickly have to find material, to find principles, to find proposals, to find alternatives."
Do you see any possibility of talking to Hamas?
"At the moment, I don't see that it's possible to talk to them. Hamas may change. But the declaration by Ismail Haniyeh [the Hamas-designated prime minister] in the Washington Post interview (to the effect that Hamas is ready for a peace agreement in stages, in exchange for Israeli withdrawal to the 1967 lines) was very superficial. Through the back door, offhand, he added that all the refugees must be allowed to return. In other words, what he said does not make them more suited to negotiations."
Above all, Lapidot believes, "from the legal point of view, Hamas is making a serious mistake when it says that the agreements signed in the past do not obligate it." First of all, she explains, "there is no such thing in international law. When there is a change of governments, the new government is tied to the commitments of the preceding government. When Benjamin Netanyahu came into power, he didn't say that he didn't honor the Oslo Accords. When Hamas says that it does not honor the agreements, it is actually removing itself from any legal arrangement."
What is the significance of that?
"The significance is that if they do not honor the law, the law doesn't have to be honored when it relates to them, either. If it is not a continuation of the PA, it has no rights at all."
The officers must be careful
Once again this week a senior officer, Brigadier General Aviv Kochavi, commander of the Israel Defense Forces division on the Gaza Strip border, was forced to cancel a visit to England for fear that he would be arrested. Lapidot actually has good news for the Israeli officers. She says that the prosecutor of the International Criminal Court in The Hague has to date rejected all the complaints submitted to him against Israel, for reason of lack of authority.
Lapidot explains that an important condition in the Rome Statute, which serves as a basis for the activity of the ICC, is "the principle that a court will try a person only if his country does not try him in a serious manner (the principle of complementarism). Since in Israel there is a very good judicial system, we can assume that it will be difficult to find a case in which the ICC will have authority because of a lack of action on the part of courts in Israel."
Did Israel made a mistake when it did not ratify the Rome Statute and did not join the ICC?
"I don't think it was a mistake. There are other problems there. There's a problem, for example, with the fact that it says in the statute that the establishment of settlements, directly or indirectly, is an international crime. And in addition, there are articles there that require submitting a great deal of secret information to the court."
Ostensibly, says Lapidot, "the moment there is an international criminal court, there is no need for laws that grant countries universal judicial authority." These are the laws by dint of which suits are filed against Israeli officers. She also believes that usually the said countries will be satisfied, like the ICC, with the fact that Israel has a proper and efficient judicial system.
It's somewhat difficult for IDF officers to rely on that.
"That's true. They have to be careful. There's no doubt about that."
Holland is stricter
Among her other jobs, Lapidot is also a member of the committee to review Israel's immigration policy, headed by Prof. Amnon Rubinstein, who will also be receiving the Israel Prize for Law Research. The committee was established in order to formulate an immigration policy to replace the Citizenship Law, which is a temporary provision that sharply restricts family unification among Israeli-Palestinian couples. The previous versions of the temporary provision totally prevented any such family unification.
The committee submitted an interim report at the beginning of the month, in which it recommended tightening Israel's policy on marriage immigration. A series of restrictions will be imposed on partners of Israelis who want to become citizens. They will be required to sign a declaration of loyalty upon their entry into Israel, to meet a minimal age threshold and to bear the burden of proof of financial ability. In addition, a quota on marriage immigrants is being considered. These restrictions will be imposed on partners from all countries. Lapidot often cites the strict legislation on issues of immigration that was recently passed in Europe, and particularly in Holland, and points out that the recommendations of the Rubinstein committee are not as far-reaching.
You are denying people the freedom to marry.
"We are not preventing you from marrying whomever you want. You can marry him, but you have to go to live in his country, rather than his coming to live in yours."
According to the recommendations of the committee, immigrants from "high-risk areas" will be required not only to declare loyalty, but to prove their loyalty as well. The mission seems almost impossible, unless the immigrant is a collaborator. The term "high-risk areas" almost certainly includes all the territories of the PA. Israel will be able to place a total ban on immigration from regions from which fighting against Israel is being conducted. This term surely includes Gaza, and it is quite possible that it will also include the West Bank under Hamas control.
Lapidot claims that this is a significant easing of restrictions relative to the temporary provision. "Not in every case will those making the request be required to prove their loyalty," she says, "only under circumstances where the man comes from a hostile area."
I assume that we can agree that the PA is considered a hostile country. "We didn't give a definition. There are cases in which a person will have to prove that he is all right, to show his curriculum vitae, to tell where he was born, who his friends are, where he studies. It's hard, but it's possible. When there is a danger (of terror, S.I.), this request is understandable. The security people claimed that there have been quite a number of cases where people who came to Israel as a result of marriage participated in acts of terror. That can perhaps be explained by the fact that they have left family members behind, and the terrorists are threatening them."
My impression is that the purpose of establishing the committee was to create the constitutional framework that will enable a continuation of the temporary provision.
"That may be what they wanted us to do, but it's not what we did. We didn't say that the temporary provision is acceptable. In my opinion, the temporary provision is unacceptable, because it discriminates against a specific group. International law allows discrimination on matters of citizenship in favor of a certain group, for example with laws such as the Law of Return, which gives priority to a certain group, but not discrimination against [a certain group]."
Do you think that the temporary provision is unacceptable even as a temporary law?
"I think it's unacceptable. It's true that last year's amendment to the temporary provision is not as bad, but I think that it's not a healthy law."
Is the temporary provision legal?
"In my opinion, it is illegal according to international law, because it stands in contradiction to the prohibition of racial and ethnic discrimination against a certain group in granting citizenship. But we have to hear what the High Court of Justice has to say on this issue. There was a petition to the High Court three years ago, I think. To date there is no ruling, and I'm awaiting it impatiently."
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