On October 22, 1979, the Supreme Court ruled that the Elon Moreh settlement had been built on land belonging to private individuals - Palestinians - and the court ordered the state to restore the land to its owners. Last week, the State Archives made public several documents that offer an inside look on the cabinet's response to the court ruling.
The following constitutes a preview of a soon-to-be published book about the period of Menachem Begin's term as prime minister. Immediately after his election in 1977, Begin issued a promise that, within a short while, "there will be many Elon Morehs." He and his administration are identified with this promise. However, the populating of the West Bank with Jews had already started when the Labor Alignment faction was in power, reinforcing an insight now taking root in historical research: The more time that passes from the old quarrels between the Israeli right and left, the more it appears the differences in approach between them were not truly significant. All sides were partners to the basic Zionist concept - namely, as much land as possible, and as few Arabs as possible.
This was also the case during the British Mandate era. The argument revolved around the best way of translating this viewpoint into reality, without - as much as possible - violating the law. The newly released Elon Moreh documents are fascinating, partly because they throw light on the judicial system's contribution toward the Judaization of the West Bank, including the key role played by Yitzhak Zamir (the attorney general turned supreme court justice ).
Zamir entered Israeli history books as a courageous man: In 1984, he refused to whitewash the murder of the Palestinian terrorists who had hijacked Bus 300, and paid for it with his job. But while previously providing legal counsel to the Begin government, Zamir sought to act as an almost transparent "consigliere" to the family: "It isn't important if I am for or against," he told cabinet ministers. And in one of the letters made public this week, he also delivered the immortal line: "Even if these things are factually correct, there is no legal significance to them whatsoever." It sounds like a promo for the recent report by former justice Edmond Levy, which determined that the West Bank is not occupied territory.
The minutes of meetings and ancillary documents show Zamir to be an active partner in establishing the settlements, without political or ethical hesitation. He told ministers how hard Justice Ministry staffers were working to locate an alternate site for Elon Moreh: two people had been working on it all night long. They had to pore through thousands of documents, from Turkish, Mandate and Jordanian periods of rule.
Zamir was up-to-date not just on the legal situation; he would also report to cabinet ministers on conditions in the field. Referring to one site, he said "the form of the land is inconvenient." In reference to another: "The road to this site is not convenient. It passes through two refugee camps and an Arab village." Another site earns his praise: "A very steep cliff, and it is government land."
Zamir made clear to ministers that, as opposed to the impression they had, the Elon Moreh High Court ruling did not reflect a failure of government policy: Primarily, it would not negatively affect the future of the settlements. Anyone who says that it does so is doing damage to the government and the settlements, he said. Zamir promised that there were hundreds of thousands of dunams of land in the West Bank, which he said were "under state ownership." This land would enable expansion of the settlements.
At this point, Zamir was talking like a project manager and offered the cabinet ministers a calculation, according to which, "It may be that there is enough land in the West Bank for 1,000 new settlements." In so doing, he was proposing that the government allocate more money to the land survey in the West Bank, and to the purchase of lands found to be in the possession of Jews.
And there was also a third possibility, which the Elon Moreh High Court verdict did not rule out: Charging that the settlements were critical to Israel's security. In an earlier verdict, the Supreme Court adopted a differentiation between "expropriations" of land for private use (forbidden ), and between their "seizure" for security needs (permissible ). Effectively, it legitimized numerous settlements.
The difficulty of representing this position in the Elon Moreh affair arose before Defense Minister Ezer Weizman and others formed the opinion that settlement was not critical to Israel's security needs. Zamir offered a way to sidestep any such obstacle in the future: "If we are offered [the chance] to seize land for security needs, we have to come and say that the dominant consideration is security. I think I know how we can come and do it."
Yitzhak Zamir was not suggesting that the cabinet ministers lie. He taught them that it was not reality that determined the law, but the opposite: "Law is reality; it is not words floating in the air," he said.
About three weeks after the Elon Moreh High Court ruling was issued, the cabinet considered a draft resolution to "take every necessary legal measure to legally ensure the continuation of settlement." Zamir sent Begin a three-page letter, the gist of which was that it was not worthwhile to decide on an across-the-board commitment without weighing every case on its own merits. This was not the sort of letter with the purpose of stopping the settlements, but the opposite: Zamir did the best he could to enable the advancement of the settlements.
Ironically enough, several of the cabinet ministers suspected him of being opposed to the settlements. He viewed this as a slight to his professional credibility. Whatever the case, Begin himself could be content: everything seemed legal. Nor did he have any reason to come to the High Court of Justice with complaints.
The Supreme Court has, on more than one occasion, been described as an enemy of the settlements. Were this truly the case, the number of Israelis living in the West Bank and in East Jerusalem would not have reached the current figure of some half a million.
The Elon Moreh High Court ruling, like the Migron ruling earlier this year, was an exception to the rule.