Legal Despots and the Threat to Israeli Democracy
Originally published in the Jerusalem Post.
By Tuesday, 50 Israeli families will have been tossed out of their homes in their village of Migron, which is set for destruction.
They will not be dispossessed because they unlawfully squatted on someone else’s property.
The residents of Migron will be tossed from their homes – on the order of the Supreme Court – because Attorney-General Yehuda Weinstein and his associates believe they are above the law. And due to this opinion, Weinstein and his associates refuse to recognize the sovereign authority of Israel’s government or to act in accordance with its lawful decisions.
The media have alternatively presented the story of Migron’s imminent destruction as a story about a power struggle between so-called settlers and the IDF, whose forces will be called upon to eject them from their homes; or as a struggle between the Israeli residents of Judea and Samaria and Prime Minister Binyamin Netanyahu; or as a struggle between the radical leftists from Peace Now and its fellow foreign government-financed NGOs, and the residents of Judea and Samaria.
These portrayals are reasonable on the narrow level of day to day developments in the story of Migron’s struggle. But on a more fundamental level, the story of Migron and its pending destruction is the story of the power struggle between Israel’s unelected, radical legal fraternity represented by the attorney-general, the State Prosecution he directs and the Supreme Court on the one hand, and Israel’s elected governments – from the Right and from the Left – on the other.
Migron is the latest casualty of this struggle. The legal fraternity’s bid to wrest sovereign power of governance from Israel’s elected leadership threatens our democracy. In its continuous assault on governing authority, the legal fraternity renders it difficult if not, as a practical matter, impossible, for the government – any government – to govern.
It is important at the outset to recognize that there is a world of difference between the rule of law and the rule of lawyers. The fate of Migron, which was sealed on Wednesday with the decision of the Supreme Court, sitting as the High Court of Justice, to remove all 50 families from their homes, is a legal atrocity.
Migron was founded in 1999 on 60 plots of land. In 2006, the EU-funded Peace Now petitioned the High Court claiming to represent Arab owners of five out of the 60 plots of land. Peace Now asked the court to require the state to explain why it hadn’t destroyed the town, which the group claimed was built on stolen land. Migron’s residents dispute this claim.
In responding to this petition, the State Attorney’s Office could have asked the court to allow the issue of ownership to be adjudicated by a lower court. Instead, the State Prosecution accepted as fact Peace Now’s unproven claim of private ownership of the land. And, after numerous delays, in 2011 the court ruled that the village must be destroyed.
Following its victory in the Supreme Court, Peace Now sued the state for damages for the alleged Arab landlords, claiming that the presence of the community prevented the land’s owners from harvesting nonexistent olive trees. Peace Now abruptly canceled its lawsuit when the court asked for proof of ownership.
For their part, Migron’s residents went through Jordanian land records and were able to find owners for only seven of the registered plots. And they managed to buy – at exorbitant cost – three of those plots. Recognizing that its claim that Migron was illegally built on private lands could no longer be justified, Peace Now changed its strategy. In the latest Supreme Court hearings, brought by Migron’s residents, Peace Now claimed that the reason all the Israelis need to be ejected from their homes, and all the homes need to be destroyed, is that the village was built without proper permits.
Ahead of the court hearing last month, the government’s Ministerial Committee on Settlement convened to determine the government’s position on the new Migron petition. Led by Netanyahu, the ministers decided that the government’s position was to ask for a continuance in order to enable the lower courts to adjudicate the claims of ownership of the land.
Rather than follow the law and represent that position to the court, Weinstein instructed attorney Osnat Mandel from the State Prosecution to inform the court he did not accept the government’s decision, and ask for a continuance in order to give him time to force the government to change its position.
Addressing the court, Mandel said, “The attorney- general believes that the ministerial committee’s position will raise legal difficulties. And since we’re requesting a continuance for undertaking the evacuation anyway [for unrelated reasons], he requests [time] to hold meetings with the elected leadership.”
On the face of it, Weinstein’s defiance of a legally binding government decision was unlawful. Certainly it would appear to be grounds for his immediate firing. But while shocking, Weinstein’s rank insubordination was not unique.
As relates to Israel’s legal rights in Judea and Samaria, Weinstein is guided not by the law but by the ideology of the far Left. This ideology received formal expression in a 2005 report on unauthorized Israeli communities in Judea and Samaria authored by former assistant state attorney Talia Sasson. The Sasson Report represented a wholesale renunciation of all Israeli claims to legal rights over Judea and Samaria. It was unhinged from both Israeli and international law.
And it was embraced by the legal fraternity.Caroline Glick