"Israel Stands Tall In Respect For The Law": David Singer Examines The Ulpana Decision

Here, courtesy as usual of the antipodean J-Wire service, is the latest article from one of my favourite Middle East watchers, Sydney lawyer and international affairs analyst Daivd Singer.  It's entitled "Palestine – Ulpana decision answers Israel's detractors".

Writes David Singer:

'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.

First: 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 that:

"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.'

Cross-posted from here