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by Moshe Dann


Renewed evacuations of outposts, while presumed legal since the defense minister and military authorities have broad powers in Judea and Samaria, raise serious questions about the purpose, fairness and morality of such actions and the law itself.

Although the military commander is responsible for security in the area according to emergency regulations approved by the Knesset, it seems reasonable that he would have to prove the security-related necessity for evacuating outposts. If the reason is political, what law supports these evacuations and, in particular, using the IDF? And if, as former deputy prime minister Haim Ramon said, "in the 40 years since the Six Day War, no government has ever set clear guidelines for construction in Judea and Samaria," how can the outposts be called illegal?

Meanwhile, according to the State Comptroller's Report for 2009, there are more than 100,000 illegal Arab buildings in Israel, and more than 9,000 in Area C, under full Israeli control. Arab building in Areas A and B (under Palestinian Authority control) is unrestricted — and extensive. Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak invoke the rule of law to justify this policy, but it seems to be a matter of politics rather than law. When law enforcement is arbitrary, capricious and selective, it violates the spirit of the law, which becomes self-serving, an end in itself.

Not only does such policy alienate large segments of the population, it has no backing from the cabinet or Knesset. From a democratic, Jewish and Zionist perspective, it strikes at the essence of the country's ideals.

Rule of law is meant as a restraint on government to protect individual liberties; in this case it seems to violate them. Should residents have waited to receive permission before building? Sure, in a fair system. But what is one to do when approval is consistently denied — even for an extra classroom or bedroom — only because the applicant is Jewish? That Jews have the right to build and live in all areas of their historic homeland is a pillar of the state, grounded in international law. When government officials don't apply the law equitably, the authority of the state is undermined. That Israel permits such bias, sanctioned by the Supreme Court, is a national disgrace.

Criminalizing Jews who have done nothing more than building without a permit begs the question, why they've been refused. Whether as a deliberate provocation, a vendetta or a desperate act to gain international support, this policy lacks integrity. Settlements were built not only by residents themselves, but also by agencies of the state, with approval from the highest levels of government. The IDF allowed Jews to build in the area and provided security for them.

CRITICS OF settlements claim that they should (1) be approved by a ministerial committee, (2) have a valid zoning plan, (3) be on land owned by the state and (4) have a municipal boundary set by the regional army commander. Settlements and adjacent "outposts" have tried to comply, despite obstacles. For example, the ministerial committee has met only rarely; plans have been submitted but remain shelved for years, and the regional commander, Maj.-Gen. Gadi Shamni — a leftist — seems to have a personal grudge against settlers.

Approximately 8,000 illegal Arab buildings have been built in Jerusalem alone. Arabs have built on land belonging to Jewish communities, private Jewish organizations like the JNF, public land designated for parks, schools and nature reserves, and Jewish archeological sites. Recently, the government proposed giving most of the illegal Arab buildings legal status retroactively, with compensation, and/or other land in return for allowing the destruction of those built in an archeological area, the City of David.

Often claimed as "private Palestinian land" is land given to individuals, families and villages by Turkish, British and Jordanian rulers in return for loyalty, in payment for services, debts or anticipated tax revenue. Recipients did not buy the land or pay taxes; often they didn't bother to register it. Most of the land, unsuited for agriculture, remained uninhabited until the 1970s, when Jews began to build on what is considered "state land" — unclaimed, uncultivated and uninhabited land "owned" by the sovereign power.

The Israeli government recognized the right of Arabs to acquire state land — miri — through possession and cultivation; it seems to have denied the same right to Jews.

ACCORDING TO the Ottoman legal code (used by Britain, Jordan and Israel), cultivated state land is not privately owned, whether or not it is registered. This includes "unallocated or waste areas situated beyond the confines of inhabited regions which can only be rendered cultivable by special effort..." As sovereign power, Israel's custodian of government property is empowered to take possession of lands certified as state; the burden of proof to the contrary was on claimants.

Under common-law practice, moreover, ownership of land given by the sovereign power that was not used within a designated time, usually a decade, or when the owner died without heirs, reverts to the state.

Terms like "illegal settlements" and "occupation of Palestinian land" are not only wrong, they are lethal. They justify terrorism, serve to prevent understanding, undermine Jewish claims to land ownership, ignore precedents and law codes and deny Jewish historical and legal claims to the Land of Israel.

Branded as collaborators and traitors, hundreds of Palestinians involved in real estate negotiations with Jews have been tortured and murdered — officially sanctioned by the Palestinian Authority's "rule of law." Forbidding Jews from purchasing land and building in Judea and Samaria violates the principle on which Israel was founded — the right of Jews to live in and rebuild their homeland. It undermines the country's ethos, its independence and its ability to defend itself.


Editor's Note: I was pleasantly surprised that people referred to the fact that Gaza, Samaria and Judea (the West Bank) are held as an irrevocable trust for the Jewish people by international law. You might wish also to read on the applicable international law: google "Howard Grief" and "Yoram Shifftan" at the top of the page. See also: "Obama's Outpost", here.)

<3. Show your support for Jews settling the land of Israel
Refreshing to see an objective overview on the issue in mainstream media. The Shomron Liaison Office is running a "Sister Community" program aim at generating real flow of information from the source about the Hilltop communities is the Shomron. Contact me to learn more about this and how you can help establish and protect thriving young Jewish communities in the heart land of Israel
David Ha'ivri - Israel (06/11/2009 09:11)

7,8,9. To John Williams and Johnboy: you are both wrong Part 3

The State of Israel does not confiscate private lands, except of cases where the national security is involved. And so do all governments in the world. To get a construction permit for a Jews is equally difficult: bureaucracy is always a problem for everyone. Moreover, 98% of Arabs in Judea and Samaria live under the laws of socalled "Palestinian Authority", not under Israel civil regulations.

This we go to Johnboy's fantasies: there is no any military laws where Arabs live under so-called "Palestinian Authority": again, 98% of Arabs in Judea and Samaria live under "Palestinian Authority" and do not see Israeli officials. (In this case, Johnboy is on target: there is no Israeli law in the disputed territories where Arabs live).

Secondly, ALL Jewish villages and towns in Judea and Samaria absolutely legal under the international law: see documents of the League of Nations. Thirdly, Judea and Samaria is not occupied territories. At best they can be called disputed territories, but even this term would contradict the international law that calls for reestablishing of Jewish National Home on these lands. So, to all anti-Semites: this article is correct.
Vladimir - USA (06/11/2009 17:51)

10. Get back to Haaretz
Maybe Johnboy should get back to Haaretz where his ignornce of what is going on in Judea and Samaria will find welcoming, and equally ignorant, readers. Jordan held control of the area from 1949 to 1967. It had originally been part of the lands set apart for Jews under the Leaguw of Nations mandate, administered by Britain. Conquered by Jordan in 1949 and ethnically cleansed of Jews, The area returned to Jewish hands when Arabs from all countries launched the six day war. Although they were defeated, Arabs never admit to that fact and want to rewrite the history
jackiekc - (06/11/2009 18:36)

11. There is no excuse for any restrictions on Jewish building anywhere in Judea and Samaria.
There is no excuse for any restrictions on Jewish building anywhere in Judea and Samaria. Our settlements are completely legal. The land has been ours for thousands of years. We also won it in a defensive war. Israel roundly rejected the creation of a new terror state in the heart of our tiny land. Thus the fact that Jewish building makes it impossible to create a new terror state is more justification for such building. All of patrioitic Israel must unite as one against Jewish building freezes and expulsions.
Chaim - Israel (06/11/2009 20:06)

17. To Observer #13: sorry, but you are wrong...
According to the international law, these territories are designated exactly for Jewish residents; you have to look into documents of the League of Nations. These documents are still valid. So, it does not matter that these territories are not formally part of Israel; Jews have all legal rights to re-establish there their communities. You are correct that Israeli laws applied only to Jews, because 98% of Arabs on that land do not live under Israeli jurisdiction, they are governed by Arab authorities who apply whatever fits their whims.
Vladimir - USA (06/12/2009 02:49)

22. Outposts: Rule of law, or law without rules?
One of the founding principles of the UN was that it would honour the Mandates set up by the League of Nation,in various parts of the world.The Palestine Mandate given to the UK plainly stated in its amended form ( after the UK detached Trans Jordan) that the land west of the Jordan River was solely for Jewish settlement.The Partition Plan of the UN was illegal according to their own Foundation laws. All other mandates of the League of Nations taken over by the UN were carried out.
Reuven Ben-Daniel - Israel (06/12/2009 08:29)

25. Only international public law generates or authorizes national rights. International humanitarian law cannot do that.
There is no other binding legal construction possible for establishing national rights for non-Jewish communities of former Palestine since there already is one for the Jews. It is evil to administer tutelage to statehood for the Jewish people as Mandatory Britain was required to by the 1920 San Remo enactment and then turn around and illegally retain part of the same land for yet another group. You don't mess with existing international agreements! Still, according to international pre-UN public law the sole title of sovereignty in Eretz Israel has been vested in the Jewish state of Israel.
Lodewijk - Germany (06/12/2009 11:01)


Moshe Dann, a former professor of history, is a journalist living in Jerusalem. Contact him by email at

This article appeared Jun 10, 2009 in the Jerusalem Post JPost%2FJPArticle%2FShowFull&cid=1244371064626


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