The IDF’s judicial empire in Judea and Samaria

Opinion: Israel's own authorities in Judea and Samaria undermine its claims to the Jewish people's ancestral lands.

Tags: Moshe Dann
Moshe Dann ,

Photo by Yahav Trudler/IDF Spokesperson

In response to calls from the international community and anti-Israel organizations to “end the occupation,” referring to the presence of Jews in Area C of Judea and Samaria, aka “the settlers,” supporters of Israel respond: ‘We are not occupying someone else’s land; this land belongs to Israel and the Jewish people by law and by history.’

But the IDF’s judicial system in Area C, also known as “the occupied territories,” which represents the State, composed of the Military Advocate General (MAG), the IDF Prosecutor’s Office (Praklitut Tzvait), and the Civil Administration (Minhal Ezrachi), takes a position in line with Israel’s critics and the international community. As MAG’s website states, Area C, in which all settlements are located, is “subject to belligerent occupation,” which means “the occupation of territory belonging to another country."

According to this law, territory gained as a result of a war, any war including a defensive one, is not legitimate. It implies that “the sovereignty of the occupied territory is not vested in the occupying power and is essentially provisional,” but it does not assign sovereignty to any country.

Israel’s High Court also takes the position that Israel is in “belligerent occupation” of the “occupied territories.” Although it maintains that the status of the territories is unclear, it has never ruled on the question. This issue is examined by Professor David Kretzmer, in his study, “The law of belligerent occupation in the Supreme Court of Israel” (International Review of the Red Cross, 2012).

To whom, then, does Judea and Samaria belong? According to MAG, which applies Jordanian law, it seems to be Jordan. This is strange since Jordan invaded Judea and Samaria in 1948 as part of genocidal war against the newly established state, committed war crimes and established an illegal and brutal regime that was not recognized by the international community. It then attacked Israel in 1967 and was defeated in the Six Day War. Moreover, Jordan relinquished all claims to the area 30 years ago. Yet, MAG decided that Jordanian law prevails in Area C, as it does in the Palestinian Authority controlled areas. MAG’s decisions not only deny the rights of the Jewish people to their homeland, they seem to be contrary to what most of the Israeli government believes.

In addition, the application of Jordanian law contravenes Israeli administrative law as well as Ottoman land law. The problem is that the Israeli government has never clearly stated its position.

In the absence of a government decision to extend Israeli law to Area C, therefore, the "rule of law" is whatever MAG and the High Court decide. MAG has sole and exclusive power and jurisdiction and it dictates what rules apply in disputes over land ownership. Its decisions are absolute, non-transparent and cannot be challenged; it reports only to the Minister of Defense. And, since it represents “the State,” its decisions are accepted as law by the High Court (Bagatz). When cases involving land disputes are brought to the High Court, its decisions cannot be appealed since it the court of last resort.

Ironically, even bizarrely, the IDF’s legal system in Area C, the High Court and thus the Israeli government are legitimizing the claim that “Israel is occupying Palestinian territory,” and that “Israelis/Jews are stealing private Palestinian land.” When cases are brought against Jewish farmers, homeowners, or even IDF security measures, MAG provides misinformation to the High Court, which orders the destruction of Jewish property and changes in security infrastructure.

MAG’s decisions have led directly and indirectly to the murder of Israeli Jews. For example, the community of Itamar in the Shomron complained that the fence protecting it was weak and inadequate. MAG refused to allow repairs and reinforcement because it decided – without proof -- that the fence was built on “Palestinian-owned” land. As a result, Arab terrorists were able to infiltrate the community time after time: three teen-agers playing basketball were murdered in 2002; five members of the Shabo family were murdered that same year; Shlomo Miller, Itamar’s security officer was killed in 2004; and five members of the Fogel family were murdered, including an infant in 2011.

A year ago, an Arab terrorist breached a flimsy perimeter fence around Kiriyat Arba, near Hebron, and stabbed to death Hallel-Yaffa Ariel, an Israeli teenage girl in her bedroom.

The recent wave of Arab Palestinian arson attacks in places such as Neve Tzuf, could have been contained if MAG had allowed Jewish communities to build protective infrastructures. MAG ignored the vulnerability of the communities which were attacked, costing billions in property losses.

In a number of places in Judea and Samaria, IDF military facilities were turned over to local Arabs by order of the IDF Commander. In several instances, Women in Green organized protests and were able to stop or limit the transfer, for example, at Shdema, between Har Homa (Jerusalem) and Tekoa. MAG opposed their efforts, but today it is a small IDF base.

Instead of protecting Jews, MAG seeks to destroy Jewish property and Jewish communities, such as Amona and parts of Ofra, while promoting fraudulent and non-existent Arab land claims. MAG squanders millions on destroying Jewish property, while allowing Arabs and Bedouin to take over State-owned land, aided by the European Union and other anti-Israel organizations. The IDF’s legal system in Judea and Samaria is directed by high-ranking officers who oppose the settlement movement.

A few weeks ago, Brig.General (ret) Dov Tzedakah, head of the Civil Administration’s negotiations with the Bedouin in Judea and Samaria, was fired after he was found to be a member of an extreme leftist organization sponsored by the EU to assist illegal Bedouin squatters. Except for Israel National News (A7), this story was not reported by the media. Col. Doron Ben Barak, Deputy Advocate General for Judea and Samaria, a fierce opponent of Jewish rights in Judea and Samaria has ties to leftist NGOs, such as Yesh Din, according to news reports. This is only the tip of the iceberg.

Israel proudly proclaims that it is “the only democracy in the Middle East.” The IDF’s biased judicial establishment in Area C of Judea and Samaria brings that claim into question. Israel cannot claim to be a democracy as long as nearly a half-million of its citizens are under the IDF’s anti-settlement judicial dictatorship. We are being stabbed in the back by our own. We need to ‘drain this swamp.’