Palestine – Ulpana decision answers Israel’s detractors

June 9, 2012 by David Singer
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Israel has effectively answered its detractors in its measured response to a ruling by Israel’s High Court ordering the demolition of five stone structures in the West Bank settlement of Ulpana – erected on what the Court deemed to be private Palestinian land…writes David Singer.

Firstly – in agreeing to remove these structures and relocate the 30 families affected to the nearby neighbourhood of Beit El –  Israel’s Prime Minister Benjamim Netanyahu announced:

“Even though for some people the High Court decision over Ulpana is hard, we have to respect it,”

Israel’s respect for the rule of law stands in stark contrast to the defiance of the rule of law by the Palestinian Arabs – – as evidenced in Article 20 of the PLO Charter which states:

“The Balfour Declaration, the Mandate for Palestine, and everything that has been based upon them, are deemed null and void.”

The silence of the international community in demanding acceptance of this body of settled international law by the Palestinian Arabs has been one of the principal stumbling blocks to ending the 130 years old conflict between Arabs and Jews.

Israel’s stance also effectively exposes the failure of large parts of the international community itself to respect the law when admitting Palestine as a member state of UNESCO last October – contrary to the well established principles of customary international law as laid down in the Montevideo Convention 1933.

Many of those UNESCO member states cynically continue to claim that Israel’s settlements are illegal in international law. Such claim is no more than an opinion that has never been properly tested in any Court.

Such claim is countered by the claim that the settlements are legal in international law under article 6 of the Mandate for Palestine and article 80 of the United Nations Charter. These two documents – read together – continue to this day to give the legal imprimatur to the Jewish people to reconstitute the Jewish National Home in the West Bank and Gaza on State land and waste land not required for public purposes.

Indeed Prime Minister Netanyahu has now indicated – following the Ulpana decision – that the pace of building activity will be increased in existing settlements built on state lands and waste lands in the West Bank.

The failure of the International Court of Justice (ICJ) to consider the legal force of the Mandate and article 80 of the UN Charter in its non-binding advisory opinion on the legality of Israel’s security barrier being erected in parts of the West Bank – has exacerbated rather than defused the settlements issue.

Regrettably the ICJ decision was reached on the basis of a brief submitted to the Court for judicial advice by then Secretary General of the United Nations – Kofi Annan. Such brief failed to include any reference to the Mandate for Palestine or article 80 of the UN Charter.

The ICJ ignored the warning made by one of the 14 judges in the case – Justice Elaraby – who wrote in his judgement:

“The international legal status of the Palestinian Territory (paras. 70-71 of the Advisory Opinion), in my view, merits more comprehensive treatment. A historical survey is relevant to the question posed by the General Assembly, for it serves as the background to understanding the legal status of the Palestinian Territory on the one hand and underlines the special and continuing responsibility of the General Assembly on the other. This may appear as academic, without relevance to the present events. The present is however determined by the accumulation of past events and no reasonable and fair concern for the future can possibly disregard a firm grasp of past events. In particular, when on more than one occasion, the rule of law was consistently side-stepped. The point of departure, or one can say in legal jargon, the critical date, is the League of Nations Mandate which was entrusted to Great Britain.

Secondly – Israel has rejected the temptation following the Ulpana verdict to resort to retrospective legislation to legalize the construction of the Ulpana houses.

Retrospective legislation is a course of action seldom undertaken in democratic countries.. Israel’s refusal to break with that principle in the Ulpana case is to be commended.

A bill to legitimize the Ulpana houses was roundly defeated in Israel’s Knesset by a vote of 69-22 – when the principle of Cabinet solidarity – another feature of flourishing democracies – was successfully imposed by Prime Minister Netanyahu.

One cannot however rule out a change of heart in the future if exceptional circumstances arise – particularly if the number of successful cases of illegal building activity are found by the Court to have occurred. Compensation – rather than demolition and resettlement of the residents affected – may become the only practical option.

Thirdly – the frequently heard claims of Palestinian victimhood and denial of legal and human rights were again effectively answered with the Ulpana decision. Israel’s legal system has always been available to Palestinian Arab litigants and has found in their favour in many cases. The Ulpana decision affirms that Israel’s legal system will continue to protect their rights when supported by the facts and the law.

The case itself was funded and run by one of the many non-government organizations (NGO) in Israel- B’tselem – that act to protect the rights of the minority Palestinian Arab population. These NGO are financed by donations from foreign supporters such as the European Union and the Ford Foundation. Lack of finance to run cases for Palestinian Arabs residing in the West Bank is not a problem. They can – and do – hire top lawyers to present their cases.

Fourthly – the case highlighted the resilience of Israel’s democracy – as the press in Israel enjoyed free rein to criticise the Government’s policy in regard to Jewish settlements in the West Bank.

One of the leaders of the pack baying for the Government’s blood following the Ulpana decision was the daily paper Ha’aretz which propounded the following in one of its editorials:

“Promising to build new homes in the heart of the occupied territories, far beyond the 1967 lines, blatantly contradicts the commitment Israel made in the road map to freeze settlement construction and evacuate all the outposts built in the past decade.”

In fact no such commitments were ever made.

The Roadmap proposed by President Bush had expressly stated:

 

  • Settlements
  • GOI (Government of Israel) immediately dismantles settlement outposts erected since March 2001.
  • Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements).

Israel however – made 14 reservations to the Roadmap – one of which provided:

“There will be no involvement with issues pertaining to the final settlement. Among issues not to be discussed: settlement in Judea, Samaria and Gaza (excluding a settlement freeze and illegal outposts); the status of the Palestinian Authority and its institutions in Jerusalem; and all other matters whose substance relates to the final settlement.”

An agreement to discuss a settlement freeze or illegal outposts is a far cry from a commitment to freeze settlement construction or illegal outposts.

The Ulpana decision once again established that there is no Government control of the media in Israel that prevents any claims or criticisms of Government policy – right or wrong – being made that would threaten their newspaper offices being raided or closed down.

Fifthly – the unique role that Israel’s High Court plays in standing between the Government and its citizens and even non-citizens is bound to ensure that it will not be intimidated in dealing with future cases of illegal  building – by either Jews or Arabs – on private lands,State lands or waste lands not required for public purposes.

Prime Minister Netanyahu confidently asserted:

“I have unequivocal legal opinions that say that the (Ulpana) verdict did not set any precedent and will not affect other cases.”

He may well find that the High Court will not agree with those opinions.

Israel’s Declaration of Independence proclaims:

” [The State of Israel] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex;”

The High Court will be vigilant in ensuring this provision is scrupulously enforced.

The Ulpana decision has opened up a can of worms that will force it to review further claims of illegal building activities – not only by Jews but by Arabs as well.

It needs to act with fairness and impartiality to correct any infringements of the law – no matter who it is that is infringing.

As the international community grapples with its response to the slaughter and mayhem in Syria against every principle of international law – Israel stands tall in its respect for the law in contrast to those nations who only pay lip service to that principle – whilst ignoring it in practice..

It is about time those other nations followed Israel’s example.

David Singer is a Sydney Lawyer and Foundation Member of the International Analysts Network

Comments

18 Responses to “Palestine – Ulpana decision answers Israel’s detractors”
  1. Shirlee says:

    Otto and others please check out the Regavim web site. There is a good video, which is a ‘must see’

    http://www.regavim.org.il/en/

    • Thanks Shirlee, checked it out and now, thanks to it, I have noch another headache re Israel !
      All along I knew that it is no reall BBQ time zusein a Yid in Australia, but Israel seems to be more and more of a …something else !

  2. dannykid says:

    Israeli democracy would be a lot more equal if it applied the law with the same rigueur to the 350 illegal Bedouin structures built on documented privately owned Jewish land in the Negev village of Al-Zarnog as it applies it to the eight Ulpana homes built on land the ownership of which is in dispute.
    Something is very wrong.

    • True, but this is precisely how the palestinian claims are defined as political stunts to which now we must ingest the legal ingredient. As in all “shared” authorities within a social structure, the judicial sees itself as a distinct moral authority to the strictly political segment. In Israel, wher we have the typical minutely truncated claims to righteousness cum leadership haloymes, solutions to major, as well as minor issues, abound at every turn. The Beduins are not a security problem in larger terms. They do not rate as an international issue either. Considering a large segment of Beduins as reliable co-nationals, to which their ancestral life style must be added, transgressions seen at them are tollerated to a great extent. Therefore there is NO parallel here with the palestinian matters and legal blind eyes (!!) are quite beseder. The true issue is that palestinians will turn the smallest event, give them a one bedroom flatette s..tfight and they will turn it into a causa belli. As it happens they have also constructed a vast media and street-march type support system which feeds on any real or, mainly, unreal stuff turned into major headline. They have a few ready to seek and bite groups and individuals ( see the “Ben” syndromme ) who smear the news bulletins with such Goebelsian fervour that it is impossible even for the tested Israelis to ignore.
      As such the legal and paralegal sideshow shall continue and those who reside within those intellectual pursuits will always claim a “pivotal” role in the resolution process. Me no lawyer, yet survived it, but a cynical historian and very happy to reflect sarcastically upon what do not consider to be part of my analytical metabolism. It did, though , avail of legal “circumstances” on occasions and scored amusing results….
      David Singer is, however, a legal cum realistic political species and we DO need him. So there…

      • Ari says:

        Otto, Sorry to burst the bubble that has been built since the 50’s and continues today with every Birthright, Masa, UIA & Academy tour of Israel, where the tour bus stops at the Beduin tent, the participants get to ride camels, drink coffee and see how the beduin make pita bread in their tents. Guess what, the Beduin are no longer nomadic, they have truly settled (on state lands and private Jewish land, basically wherever they please), they no longer serve in the Israeli Army (less than 1% compared to 30% in the 60’s) and any visit to the innards of the 2100 illegal villages they have built in the Negev, will expose the massive houses built on stolen land. They fund these activities by every sort of illegal business including extortion and racketeering which is rife in Beersheva and throughout the Negev. They run the human trafficking, drug smuggling and most dangerously the weapons smuggling coming across the porous border between Israel and the Sinai. The Shin Bet (Israel’s internal security agency) lists them as a very serious threat due to their ability to smuggle weapons from the Sinai to the West Bank. The 100,000 acres they have “settled” on is basically extra-territorial with the police being told not to enter. Any, court order enforced, illegal house demolition is done with at least 300 soldiers defending the bulldozers, if at all, due to the violence demonstrated by the Beduin and the wariness of the police forces to respond. Not to mention the rampant polygamy that produces average family sizes of 20-30 (the highest birth rates in the world) and severe infringement of women’s rights.
        Now on to the internationalization of this “dispute”. The NIF, with the EU, Soros and Norwegian Christian organisations following, have done a fine job funding the many organisations whose role is to let the world know about the “Palestinian” Beduin struggle against Israeli discrimination and racism. One only has to look at the UN Special rapporteur reports, the “indigenous” people claims to the UN etc. to understand where this is going. It will only be a few years before they demand autonomy and full implementation of sharia law (yes, I didn’t mention the radical islamification of the Beduin). So Otto, they are no longer the reliable co-nationals you claim and the sooner we make ourselves aware of silent conquest of the Negev the better we can stop their goal of dis-inheriting the Jews of our homeland.

        • Ari
          Points taken with gratitude !
          I knew something about the land aggrandizement and their legal impunity, but unaware of the extent of nasty turns in their behaviour.
          Thanks again !

  3. What Palestinian land are we talking about. As I understand it – there is NO such place as Palestine.

    • David says:

      Patricia

      Sorry to be the bearer of the news that there is a state of Palestine that has been recognised and was admitted to UNESCO on 31 October 2011.

      Ulpana is outside the area of territory controlled by that State.

  4. Lynne Newington says:

    From what’s happening in Syria, Kofi Annan doesn’t apear to be getting it right there either.

  5. Whatever the reasons claimed, Israel will always respect principles that are fundamental to existential reason. This is to say that, as political events are of fluid nature, so the attitude of Israel will have to reflect the realities on the ground.
    The pro palestinian arguments are bound solidly on universal principles, constantly brought forward, peddled and stoicly refered to each time events created by palestinian NON-compliance with fundamental, universal principles are blatantly breached. The mere adherence to UNESCO, a cultural institution by an entity to which culture as such is the least, if at all, modus vivendi or even a slight preocupation, shows precisely the farcical nature of the entire palestinian case/cause.
    One sees the persistent reference to events past, 1948 with predilection, as the principal “argument” in almost all palestinian so called “narrative”. Nauseating rhetoric of the “Ben” type are as irrelevant as they are completely absent from the real politik exchanges between the relevant parties, i.e. the Israeli and palestinian actual negotiators. The reservoir of public debate on the issue has the only virtue of keeping stubborn sideliners in “business” while their presence in the ACTUAL fora of political decision is not required.
    The concrete platform of decisions on the matter takes into account the palpable, real, character of each party. To this extent, the obvious traits of enmity present, prommoted and predictable in the palestinian psyche AND infrastructure are the actual issues with which Israel is confronted and must address in practical terms. The farcical coating with acceptable G-d terms mass consumption palestinian propaganda account for naught in the effective wash of conflict resolution.
    As such, David Singer will always have a safe job in the process, whereas the “Ben” irrelevant annoyance will be just that, “hello” so and so notwithsatnding.

  6. Shirlee says:

    Oh dear Ben !!!

    Copying and pasting badly from unreliable web sites does you no credit.

    There are no such people as Palestinians. Argue that all you like. There is no such country as Palestine, there never has been. It is/was a region. It was re-named by the Romans to remove the ‘Jewishness’ from the region.

    Jordanians are your so-called ‘Palestinians’. Trans-Jordan, loosely meaning “the other side of the River Jordan, as it was originally named, occupies 78/79% of Palestine. Ergo Jordan is Palestine.

    Many Israeli Arabs have their roots in Egypt. Hence the large number of Israeli Arabs with the surname Al-Masri, which is an Egyptian name. In 1920, when my father was born, there weren’t very many Arabs in Israel. They arrived looking for work as the Jews made the deserts bloom.

    Available free on line for download, is the book by Mark Twain “Innocents Abroad” That’ll give an idea what the region was like.

    Israel survived an invasion by five Arab armies in 1948 and Israel was accepted into the United Nations, without recognised borders. Following an armistice, Egypt occupied the Gaza Strip and Jordan occupied Judea, Samaria, and East Jerusalem.

    In 1967 Egypt, Jordan, and Syria again attacked Israel, who beat them and took control of Judea, Samaria, eastern Jerusalem, the Golan Heights and the Gaza Strip. A few months later the United Nations Security Council passed Resolution 242, which declared Israel’s right to retain at least some of the territories it had acquired for use in any “land for peace” agreement, and MOST IMPORTANTLY, its right to “secure and recognised borders.”

    In 1988 Israel wanted to exchange the West Bank of Jordan for peace, but the Arabs refused.

    As Jordan had renounced its claim to Judea and Samaria in 1988 and signed a peace treaty with Israel in 1994, recognizing its current border, the only other possible valid legal claim, defined in the Mandate, is that of Israel; Palestinians have no claim because the area was never a Palestinian state.

  7. Rachel says:

    Many Jews owned property in Judea and Samaria, Gaza prior to 1948. Does this means that now the Jews can claim back their title to these properties especially in Hebron? It sure should.

    Thanks for a superb article, however I believe as an Israeli that the Israeli Supreme court is corrupt. It never fails to adhere to the false “Palestinian” narrative and most likely fraudulent land ownership claims by Arabs. Under international law and sacred trust, Judea and Samaria including the Ulpana lands belong to the Jewish people. Where was this Arab all these years that suddenly he appeared claiming title Ulapana?

    • David says:

      Rachel

      There is nothing to be gained by claiming that any court is corrupt unless you have some very strong evidence to back up such a claim.

      The issue of illegal Arab building both in Israel and the West Bank is set to become a very hot issue for the Israeli legal system.

      Watch this space.

  8. Ben says:

    The ulpana decision was regarding small outposts abosrbed into settlements. The exclusive settlements, connecting highways and checkpoints are all illegal and built on occupied land, the settlerments are built often over demolished Palestinian homes and the settlers burn Palestinian crops and shoot at Palestinians. And coming to the balfour declaration, it was cynuical imperial excercise by Britain made about Palestinian land and over the heads of the Palestinians as was the League of Nations mandate – merely a cloack for colonisation of Palestine from the Ottoman empire.
    The Palestinians opposed anf fought against both and were terrorised and suppressed by the British with the collaboration of the Zionists trained by Orde Charles Windgate.

    • Solomon says:

      Ben seems to forget that the Balfour Declaration was incorporated in the San Remo Resolution of 1920 and became an act of international law, thus leading to the Mandate confirmed by the League of Nations in 1922.
      The same Resolution of 1920 led to the Mandates of Syria-Lebanon and Iraq, which eventually created these three countries. You can’t selectively challenge the Mandate for Palestine without questioning the other Mandates.

      • David says:

        Ben

        If your claims had any legal validity – do you believe the Palestinian Arabs would not have mounted a legal challenge in the Israeli courts?

        The Ulpana decision shows that the courts make their doors open to suits and petitions by the West Bank Arab population using well paid and well resourced lawyers. When the law is on their side – they can win their cases.

        Ulpana is not the first case where they have succeeded and it won’t be the last.

        You would do better to support the rule of law and not the law of the jungle.

        Rejection of the law outright – as in the case of the Mandate and everything that followed it – has been the source of much suffering for the Palestinian Arabs.

        They need to learn that you cannot always spit the dummy when a legal decision goes against you. Win some, lose some – but get on with life and accept the verdict of the Courts.

        The legal system is not perfect – but it is the best humankind has developed for settling disputes.

        • Ben says:

          Hello david

          I am with on opposing the rule of law. Howere law and justice ar two diferent things. The Third Reich and South africa, colonial Britain and even Israel have laws that are not just. For instance there was never a law on allowing the refusees of massacres and terror to return to their homes but their properties were robbed through the Absentee property law – this while not permitting the owners to return to claim their properties. I need not tell you about “lawful” acts under the Third reich.

          • David says:

            Ben

            You confuse the rule of law with the justice or fairness of the law.

            The courts exist to enforce the law.

            If someone opposes the fairness or justice of the law then work through the democratic processes to have it changed.

            That is what many tried to do in the case of trying to introduce a new law into the Knesset to correct what they saw as an injustice in the Ulpana verdict. Their attempt failed. They will no doubt use every legal means at their disposal to push their views.

            Regrettably you will not see this process working in Palestine, Syria or Egypt.

            Merely declaring the law to be null and void and refusing to be bound by it – as the PLO declared in 1964 – is a recipe for disaster that the Palestinian Arabs continue to experience in 2012.

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