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Legal Commentator: Heavy Legal Obstacles On The Road To Uprooting Communities

"It's not impossible, but it requires special legislation - a very long and complext legal process." So says left-wing IBA legal commentator Moshe Negbi about expelling Jewish residents from their homes in Judea, Samaria and Gaza.
First Publish: 12/23/2003, 3:08 PM / Last Update: 12/23/2003, 4:15 PM

"It's not impossible, but it requires special legislation - a very long legal process." So says left-wing Israel Broadcasting Authority legal commentator Moshe Negbi regarding the possibility of expelling Jewish residents from their homes in Judea, Samaria and Gaza. All in all, Negbi was not very "optimistic" about the chances for doing so. Excerpts from his interview on Israel Radio this past Thursday:

"It's important to emphasize, if we're talking about relocating communities, it must be remembered that this has a legal aspect that is bound, of course, with the residents' rights. Relocating towns is not an impossible mission - we remember that it happened before in Sinai following the peace agreement with Egypt - but it is a very hard mission [in that it] requires legislation - possibly even legislation that requires a special majority of 61 MKs. This is a very very long legal process. Let's remember that the evacuation of the towns in Sinai took five years, more or less. And this time it's more complex."

[Why is it more complex?]

"For one thing, because even though the Jewish residents are living in an area that is under military rule, just like the Palestinians there, [the Jews'] legal status is much better, for two reasons. First of all, they are Israeli citizens with rights like every other Israeli citizen, and secondly, both the Knesset and the Military Administration have enforced many laws on them [such as paying income tax, etc.], unlike the Palestinians, of course.

"Now, the most relevant and critical right that they have in this context is the right to their property, which is anchored today in a Basic Law from 1992 - unlike the situation in Sinai [which occurred in 1982]. It's obvious that if you take a person from his home and take away his home and perhaps also his fields and [hothouses, etc.], you are abrogating this right. To do so requires special legislation with a majority of 61 MKs ... with, of course, financial compensation [unless the government] wishes to wage separate negotiations with each individual resident..."

Negbi said that even though many of the residents signed a clause saying that they waive their rights to compensation, "I am sure that they... will say that this clause was dictated to them unfairly, that they did not have free choice in the matter, and that this is a discriminatory clause in what is called in legalese a 'uniform contract.' We can expect very difficult legal claims. I therefore assume that if the State insists on evacuating them, it will have to, like in Yamit, pass a comprehensive law in the Knesset that will arrange the matter of compensation. But again, because we now have the Basic Law of Human Dignity and a person's right to his property, there will have to be a special majority of 61."

Even if such a law is passed, Negbi said that it will be, "unlike in 1982, subject to Supreme Court review. Every law can be appealed to the Supreme Court. The process is very long." He said that even in Yesha communities that were built on State-confiscated lands for purposes of security, the residents have basic rights of a 'protected tenant' - "and we know that to remove a protected tenant from his home is a most complex legal process."

Negbi then said that what "might be the other side of the coin" is the issue of annexing PA-controlled territories. He said that to annex territories in exchange for withdrawing from others, as Education Minister Limor Livnat called for and Prime Minister Sharon implied he might do, would require a Cabinet decision - "but it's not so simple, because in a series of diplomatic agreements, including Oslo and the peace agreement with Egypt, Israel obligated itself not to change the legal status of the territories until a permanent arrangement has been reached... Such a decision could also be appealed to the Supreme Court, therefore, and possibly entail legislation requiring 61 MKs."