JERUSALEM (Oct. 22)
The Supreme Court, in an unprecedented decision, ruled unanimously today that the Gush Emunim settlement of Elon Moreh in the Samaria district of the West Bank must be removed because there was no security justification for its establishment on Arab-owned lands expropriated for the purpose. The court gave the settlers 30 days to evacuate and ordered the confiscation of private land abolished.
The decision represented a landmark in the Israeli judicial process with long-range effects on the government’s settlement policy. It was the first time Israel’s highest court has ruled in favor of an appeal by Arab landowners against Jewish settlement. Elon Moreh will be the first Jewish settlement dismantled by court order.
The ruling was the first in which the court not only rejected the claim by the Chief of Staff the highest non-civilian military authority, that a settlement was necessary for security purposes but implied strongly that the military commander had tailored his views to suit the political demands of the Gush Emunim.
There was no immediate comment on the decision by government officials. Premier Menachem Begin was reported closeted with several of his ministers this morning to consider what steps to take in light of the Supreme Courts ruling. The settlers at Elon Moreh and the Gush in general were reported stunned by the decision. There was some talk among the settlers of defying the court order. (See separate story this page for reactions and P. 4 for implications of the court order.)
SAYS SETTLEMENT WAS INFLUENCED BY POLITICS
Justice Moshe Landau, President of the Supreme Court, announced the decision which was concurred in by the four other justices who comprised the five-member panel that heard the appeal. Landau stated that the driving force behind the establishment of Elon Moreh six months ago on a hill top overlooking the Arab town of Nablus was the persistent demands of the Gush Emunim, not the military opinion of the Chief of Staff.
He said that both-the-Ministerial Defense Committee and the Cabinet majority that had approved the-settlement were influenced by the reasoning of a “weltanschauung” that supported Israel’s hegemony over the entire “Land of Israel ” and not security reasons. The view of the right of the people of Israel to the ” Land of Israel ” is founded on-Zionist ideology but it does not justify the take-over of private property in an area which is under military government, Landau said.
He said that the written testimony of Chief of Staff Gen. Ra phael Eitan gave the impression that it was the army that had initiated the establishment of Elon Moreh at its particular site. However, as a result of the court’s inquiry, it was discovered that the process was the other way around. The initiative came from political echelons which asked the Chief of Staff for his professional appraisal. It was then, Landau said, that the Chief of Staff gave a favorable opinion with respect to security in accordance with his concepts.
Landau pointed out that the Ministerial Settlement Committee, a political body, had selected five possible sites for the new settlement. The army then selected one of them. This means, the Chief Justice said, that it was not the army that determined the site but a political body which limited the army’s choice. The court’s conclusion was, therefore, that the lands were not seized “for security reasons.”
Landau said the court was further influenced by the fact that the Gush Emunim insisted from the outset that the question was not security but its “God-given right” to settle the territory. The seizure of land for security reasons is, by definition, a temporary measure, Landau noted. However, the written testimony submitted to the court by the Gush Emunim claimed that Premier Begin had promised it that Elon Moreh would be as permanent as Deganya, a pioneer kibbutz on the Sea of Galilee or Nahariya, a large city north of Haifa.
MILITARY EXPERTS DIFFERED
Justice Alfred Witkon, another member of the panel, said the case of Elon Moreh differed from similar cases dealt with in the past by the Supreme Court because there were sharp differences of opinion among military experts as to the security value of the settlement. In this case, Defense Minister Ezer Weizman did not agree with the Chief of Staff nor did two prominent Reserve Generals, former Chief of Staff Haim Barlev and Gen. Mattityahu Peled.
There was no reason to give greater weight to the Chief of Staff’s opinion than to that of the Defense Minister, he said. He recalled that in the past the Supreme Court had upheld the legality of settlements in the Rafah salient and Belt-EI but in those cases, the court assumed the settlements were necessary to combat terrorists. In the case of Elon Moreh that security function could be fulfilled by other means, he said.
Witkon also referred to statements by the Gush Emunim settlers who declared openly that they had not come to Elon Moreh for security reasons or at the sufferance of the army Justice David Behor said the action of the military commander who seized the land was in contravention of international law justices Miriam Ben Porat and Shlomo Asher concurred in the arguments of their colleagues. The court ordered the military government to pay IL 5000 to cover the cost of the appeal borne by the appellants.
The appeal was brought by Arab residents of Rujeib village whose land was confiscated for the settlement. It was the first ever to succeed. The first appeal of its kind was heard by the Supreme Court nine years ago and involved the seizure of land in the Rafah salient of Sinai. That appeal, and all others since then were rejected. Today’s decision put a final legal stamp on the Cabinet’s decision of Oct. 14 not to seize privately owned land for the expansion of seven existing or projected Gush settlements on the West Bank.