Behind the Headlines Implications of Supreme Court Ruling
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Behind the Headlines Implications of Supreme Court Ruling

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Paradoxically, perhaps, one could sense today a large measure of satisfaction among Gush Emunim members over the Supreme Court’s ruling on Elon Moreh. One Gush leader Benny Katzover, who is a member of the settlement, said that the ruling applied more to the government than to the settlers. There was a lot of truth to his words.

The Gush has been saying ever since its members settled Kiryat Arba shortly after the Six-Day War that the reasoning behind the settlement of the territories should be the right of the people of Israel over the Land of Israel and not security needs. The Gush has always rejected what it regards as a limit on its settlement plans.

The court ruling today made it crystal clear that if the government wants to continue a massive settlement effort in the territories it can no longer hide behind the security veil.

It must decide whether to go ahead with such a massive effort based on historical rights–taking into consideration the internal and international implications of such a decision — or it must limit its settlement efforts and face the Gush and its supporters in a confrontation. The Gush feels ready for such a confrontation. The reason for its satisfaction was therefore that the hour of decision could no longer be postponed.


The government, therefore, must decide and any possible decision will not be easy. Theoretically, the government could try and pass a special law which would nullify the court’ s decision retroactively and enable the continued existence of Elon Moreh.

Retroactive laws have been passed in the past, but on much less controversial issues — such as the elections to the Chief Rabbinate. According to Shai MK Amnon Rubinstein, a professor of law, “retroactive legislation would mean the end to the rule of law, the end of the independent legal system in Israel which we are so proud of and in effect, the end of the democratic society in Israel.”

Many coalition members, of course, do not accept Rubinstein’s interpretation of retroactive legislation. But political pundits in Jerusalem said today that it was unlikely that the government would take such extreme measures in order to leave the settlement in place at a time when some Cabinet ministers, including Defense Minister Ezer Weizman, have questioned the wisdom of Elon-Moreh in the first place.

The solution that seemed most likely today was that the government would decide to relocate the settlement this time on State-owned lands. This would be in accordance with the Cabinet decision of Oct. 14 that settlements would be established only on State-owned lands.

Assuming that such lands exist in the vicinity of Nablus the weak point of such a government decision is that it leaves the door open for Arab land owners to challenge the argument. that the lands confiscated are State-owned. New appeals could be expected in the future, once again embroiling the government in a legal controversy which it would rather avoid.


Coalition MKs said angrily today that it was unacceptable that the Supreme Court determine the settlement needs of the State. This is solely the prerogative of the government, Likud MK Amnon Lin said.

Lin repeated a demand he made several months ago that the Knesset pass appropriate laws which would exclude the right of the Supreme Court to interfere In practical terms, that would mean allowing the confiscation of land “for the needs of the public.” A similar law exists in Israel proper. Under this law the State does not have to explain in court the nature of public needs The law was not applied to the occupied territories because in accordance with international law, Jordanian law still applies to the West Bank.

The present government, like its predecessors, considers the administered territories to be under military occupation by force of international law, and thereby excluded from Israeli jurisdiction. According to another legal authority, Prof. Amos Shapiro, “The international law, which is an integral part of internal Israeli law, states clearly that private land will not be seized unless for obvious security reasons.”

If, however, the majority in the Knesset rules that Judaea, Samaria and Gaza become an integral part of the State of Israel, the laws of Israel could be applied to the territories, possibly in contravention of international law.

Rubinstein explained that “this would mean a change in the status of Judaea and Samaria and the imposition of Israeli laws directly by the Knesset. This is annexation of the West Bank in the worst possible way. An open breach of the Camp David accords.”

Under the existing internal and international situation, it is hardly likely that Israel would take such measures. Any move in that direction would strain even further the relations inside the Cabinet, not to speak of international pressures, and the time left to the Begin regime would run out even faster than it seemed yesterday when Foreign Minister Moshe Dayan announced his resignation.

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