On an Appropriate Evacuation and Inappropriate Petitions for Postponement

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Yair Sheleg's article "Appropriate and Inappropriate Evacuation" differentiates between the upcoming evacuations of Migron and the Ulpana Hill and the evacuation of the Sinai in the past, distinguishing between appropriate evacuations, which are based on national security, and inappropriate evacuations, which are based on property rights. In this article, Attorney Amir Fuchs responds to Sheleg's article and takes exception to some of the arguments that it raised.

The High Court of Justice recently denied a petition seeking a postponement of the evacuation of settlers from Migron and the Ulpana neighborhood in Beit El. In his article "Appropriate and Inappropriate Evacuation," Yair Sheleg asserts that this evacuation of settlers is inappropriate. In his view, any evacuation entails three levels of destruction: personal-familial, communal, and ideological. According to Sheleg, unlike justified evacuations-which are as a result of a determination by government institutions that the evacuation is necessary for national well-being and security-evacuations based on property rights are not justified. In this article, I wish to take issue with some of the assumptions and determinations, both legal and factual, which Sheleg raised, as well as with his assertions

First, framing the evacuation of the Ulpana neighborhood as a dispute that is solely based on property rights, and asserting that the Court ruled that the land is private and therefore the law requires evacuation, is inaccurate. In hearings held in 2010-2011, the current government notified the Court, through its counsel, that because all the evidence presented to the government indicated that the Ulpana neighborhood was built on private Palestinian property that was registered in the Land Registration Office (Tabu) and there was no validity to the assertion that the land had been purchased the government intended to evacuate the settlement within one year (by May 1, 2012). This decision was reached in a meeting of the Prime Minister, senior government ministers, the State Attorney General, and other officials. The government decision was accorded the force of a court decision on September 21, 2011. Four days before the expiration of the year, however, the State requested a renewal of the court proceeding regarding this matter because it had decided to "change its policy."

This indicates that the matter in question is not a property dispute. At issue is the question of carrying out a court decision that was rendered with the agreement of the State and in accordance with a government decision, when the decision relied upon a factual foundation that the State presented to the High Court of Justice in accordance with the law. Failure to carry out such a decision, whether through a wrongful last-minute legislative attempt or through an embarrassing petition to reopen the court proceedings, constitutes contempt of court, contempt of the judicial process, and contempt of the principle of finality of judicial proceedings. The decision of Chief Justice Grunis, which rejected the State's petition, is not just appropriate; it was the necessary decision and the only decision that would not completely shame the Court and make a mockery of the rule of law itself.

Second, the author relates to the issue as if the land in question is located within the State of Israel and the dispute is a dispute between two citizens regarding its ownership. He completely ignores the fact that the territory in question is land that the State is holding but has not annexed, and therefore international law applies to it. While one could argue about the legality of the entire settlement enterprise in the territories (even on public rather than private land), it is clear that according to international law, the establishment of settlements on private land is absolutely forbidden. (This was held in the decision regarding Alon Moreh, to which I shall relate below.) Hence, the author's reference to Israeli property laws is not relevant. I also note that the author is correct that the solution of a retroactive "legislative fix," which is currently being considered, is out of the question. Can the Israeli government change property law in places that are not within the boundaries of the State?

Third, the author asserts that one wrong should not be corrected by another and that the infringement of property rights should be remedied through monetary compensation or by providing replacement property, as is accepted practice in such cases. But even if we were to apply Israeli property law to this matter (despite the fact that it is not applicable, as stated above), in cases of this nature, the accepted market practice does not apply (as it is an exception to the rule that a person cannot transfer property that does not belong to him). Therefore, the good faith of the buyers (assuming that they indeed acted in good faith) is of no avail. In such cases, where registered land is at issue, an assertion of the buyer's good faith is relevant only where the assertion is that he relied in good faith on the registration which turned out to be erroneous, and any other mistake (such as deception on the part of the project's developer) will not help the buyers acquire property rights. They have the option of seeking damages from the party that deceived them.

Fourth, the assertion that this is a retroactive decision is outrageous. I need only cite the decision of Justice Landau in the Alon Moreh case. In that decision, the Court ruled that seizing private property for any reason other than security needs is absolutely prohibited and that the remedy is evacuation. This ruling was rendered thirty-three years ago. There is nothing new in the court decisions of the last several years (moreover, as stated above, in the present case the decision was given with the State's consent); the only thing that is new is that in contrast to the Begin administration, which saw itself as bound by the Court's decision, the current administration views the Court's decision as merely a recommendation for consideration.

Lastly, in my opinion, the main assertion of the article is also not convincing. The comparison between the evacuation of Yamit or Gush Katif and the evacuation of an illegal outpost or several buildings in the West Bank is unfair. In the case of the Ulpana neighborhood, there is no issue of wiping out a settlement and a community. The Israeli government is offering the residents of the houses in question (as it is offering the residents of Migron as well) temporary housing on public land nearby, until alternative permanent housing can be built. This is not a case of the total uprooting of a settlement and a community, and unlike the case of a complete withdrawal from an entire geographical region, it does not deal a decisive ideological blow to the evacuees. This is a question of the enforcement of the law, pure and simple.

Attorney Amir Fuchs is a researcher at the Israel Democracy Institute.

Yair Sheleg's Response to Amir Fuchs:

Amir Fuchs is, of course, correct in his comments about the legal aspects of this case. But since I am not a lawyer, I did not set out to deal with the legal dimension, but rather with the moral dimension. And in that realm, there is one simple question: Is it appropriate for property rights to bring about the removal of people from the homes that they apparently entered in good faith and in which they have lived for a long time? Or should the solution to this matter be found in monetary compensation?

Unfortunately, this moral question has received a hypocritical political response from both the Right and the Left, as each side seems to be willing to invoke property rights when it suits them. Right-wingers, who oppose the evacuation of the residents of Migron and the Ulpana neighborhood in Beit El from property belonging to Arabs, are willing to accept-and sometimes even fight for-the principle that property rights can cause Arab families to be evicted from their homes in Sheikh Jarrah and Hebron. Similarly, left-wingers, who are opposed to the removal of Arabs from property belonging to Jews in Sheikh Jarrah and Hebron, are willing to accept-and sometimes even fight for-the principle that property rights can cause Jews to be evicted from their homes in Migron and the Ulpana neighborhood

I am neither a legal expert nor a person who is associated with a clear political camp. What I am asking for is consistency and morality: Property rights should either be the basis for evicting people from their homes in all cases, or should not be considered to be an appropriate consideration in any cases.

Yair Sheleg is a Research Fellow at the Israel Democracy Institute.