Friday, June 05, 2009

Illegitimate, Obama Says?

So, Obama says Jewish civilian residential communities in Judea and Samaria are illegitimate?

Israel hastens to destroy outposts, extentions, expansions, etc.

Well Aviad Visoli, Attorney, thinks and says otherwise:

Enforcing the Law in the Outposts? Fraud, Ignorance, Ethnic Discrimination,
and Governmental Corruption

The impassioned attack by the extreme Left against the residents of the Jewish outposts in Judea and Samaria, under the guise of the obligation to uphold the Rule of Law and maintain an orderly society, is a foul mixture of blurring the facts, legal ignorance, selective enforcement of the law, ethnically based discrimination, and the worst kind of abuse of governmental power, by means of abuse of the power of the Supreme Court, the Israel Defense Force, and the Police, for political means.

Fraud and Deception

In the Jewish sector of Judea and Samaria there are some 3,000 buildings in the midst of some manner of legal proceedings regarding illegalities violating Building & Planning regulations. Amongst those, there are tens of open cases regarding illegal construction in outposts. In relation to the population of 300,000 residents, a figure of 1% lawbreakers per 1000 residents. This can be compared to 10,000 illegal units just in the Arab Sector C, out of a population of 60,000 Arabs living in Sector C, or a ratio of 18% lawbreakers. That is to say, 18 times greater percentage of lawbreakers than amongst the settler population!

The State Comptroller, in his most recent annual report, dating from the beginning of May 2009, states that in the State of Israel there are 100,000 illegal buildings, a ratio of 1.5% per 1000 residents, two thirds of them in the Bedouin sector in the Negev. The number of illegal buildings in the sector has doubled since 2002. The State Comptroller's report quotes a statement by a senior member of the Department of the Interior, relating to the Building & Planning law: "the area of the Carmel is already out of control, and we are on the verge of collapse in the Wadi Ara area as well." (Building Criminals Flourish, and the State is Helpless, The Marker, 22.5.09)

In the Jewish sector in Judea and Samaria the level of law enforcement is much higher than within the Green Line, and even more so than in the Negev and the Galilee. Enforcing the law fairly, in this case, means that for every building that is destroyed in an outpost, 18 buildings would be destroyed in the Arab sector of Judea and Samaria, and 60 buildings within the Green Line.

Legal Ignorance

All the outposts in Judea and Samaria were founded, and have been continuously situated where they are, for between 2-10 years or more. One of the claims against the settlers is that they invaded the land without clear title, where Palestinians claim ownership. Since the settlers have occupied the land for far more than 30 days, there is a de facto presumption of ownership, and the only way to abrogate that presumption is in a civilian court of law. That is the precise decision of the Supreme Court in the "Peace House" case:

The 3rd section of the law regulating the removal of invaders requires the fulfillment of three conditions necessary to create the right to take the law into one's own hands to regain property from which one has been expelled: full legal rights to the property, illegal possession by the invader, and taking the law into one's own hands within 30 days of the day of the invasion... Considerations of the public good stand behind the principle that disagreements regarding rights of possession are to be resolved within the court system, and not by force between the disputing parties. Ruling on fundamental rights of ownership between parties ... through agreed upon mediators in the civilian judicial system ... where the right of ownership has not been decided, the law does not allow for one side to unilaterally seize property without the other sides' agreement. The right to the preservation of property supersedes the argument over fundamental rights, and until a decision is reached in the proper court, it is forbidden to change the status by forcibly removing the possessor from his holding. "

Another claim leveled against the civilian settlers is the construction of buildings without building permits. The Planning and Construction Law (1965) defines all the legal requirements involved with acquiring building permits and the (criminal) sanctions for building without a permit.

The Knesset established the equality of law which applies to citizens of the State of Israel on both sides of the Green Line in the Law for the Extension of the Emergency Measures (Judea, Samaria, and Gaza- Criminal Jurisprudence and Legal Aid) 1977. It is this law which enables Israeli citizens who commit crimes in Judea and Samaria to be brought to trial.

All the laws of Israel have been applied to Israeli citizens in Judea and Samaria- with the exception of the law of Planning and Construction. In the area of Judea and Samaria, in gross violation of the law, the State conducts all legal enforcement processes regarding Planning and Construction with administrative orders and through governmental supervisory and planning commissions, and not through the court system. The result is that while within the Green Line 100,000 final legal demolition orders have been issued due to building irregularities, in Judea and Samaria not a single legal demolition order has been issued.

Using administrative steps in place of legal measure discriminates against settlers on the one hand, and at the same time precludes charging them with criminal charges due to building violations. It is meaningless to speak of building violations in outposts as long as the State refuses to turn to the courts to obtain demolition orders. Administrative punishment of this type violates international legal covenants on which the State of Israel is a signatory, as well as international law which declares that all citizens are equal in the eyes of the law.

In the name of the principle of equality before the law- a basic principle of Israeli and international law- violations of building regulations in Judea and Samaria must be treated the same way they are within the Green Line, and to allow residents of the outposts to defend themselves against demolition orders due to suspicion of illegal construction within the walls of a courtroom, as every other citizen is allowed to do.

Discrimination based on Ethnic Background

The principle of equality before the law means that if the State desires to enforce a law- it must be enforced equably. The same enforcement measures must be taken against citizens east of the "Green Line" as are taken against citizens to the west. The same enforcement must be applied to Jews and to Arabs. The reality is, the law is enforced more than 100 times as vigorously against the settlers as a group, and against the outposts specifically, while there is severe under-enforcement against the Beduins, residents of the Ara valley in the north, and the Carmel ridge and the Galilee.

The call to harass the residents of the outposts, to close the Jews in the settlements into 'ghettos' and to forbid them natural expansion, is reminiscent of the darkest periods of Jewish history. These unethical demands carry a strong scent of anti-semitism.

The full picture is even worse- Every citizen of the State of Israel who wants to build applies to the local authorities, who decide whether or not to give him a permit. The enforcement of building regulations is also the exclusive jurisdiction of the local authorities. The fact that in Judea and Samaria local authorities do not have the mandate to grant building permits or to enforce them is extreme discrimination against residents of Judea and Samaria, whether comparing them to other citizens of Israel, or to the Arabs of Judea and Samaria.

Political Corruption of Governmental Powers

The fact that every building permit must receive the approval of the Minister of Defense not only discriminates against the residents of Judea and Samaria, but it also turns an administrative matter of building permits into political intercourse, which is fundamentally improper.

The fact that Ehud Barak, the head of the Labor Party, is also the Minister of Defense who wants to harass his political opponents, destroy their homes, and expel them from their land, only emphasizes the absurdity of having Barak control the ability to build in Judea and Samaria, as well as the requirement that the Minister of Defense agree to each building permit.

The fact that Ministers of Defense over the past ten years have uttered blatantly political declarations about their unwillingness to permit construction in Judea and Samaria, discriminating against the Jewish residents of Judea and Samaria and preventing them from meeting the legal requirements for construction. Therefore it is inconceivable to enforce laws which citizens are a priori incapable of fulfilling, due to government harassment policies. Instead of harassing settlers, affirmative action should be employed due to the long history of discrimination against the process of building and planning in the settlements.

Another fundamental principle of the Rule of Law in a democratic country is that ministers and politicians are precluded from interfering with the enforcement of the law. Just as the Minister of Defense cannot decide to initiate prosecution against his political opponents, it is inconceivable that the head of the Labor Party Ehud Barak would be allowed to send soldiers to destroy the homes of his political opponents. This is a gross violation of the principles of legality and equality, and corrupt political interference with the law enforcement authorities of the State of Israel.

In addition, the use of IDF soldiers to destroy civilian housing is fundamentally untenable. A soldier who is drafted into mandatory service to protect his country, and not to be the political servant of Barak in destroying his own home, or the home of a friend.

The Government of Israel decided in 1998 that the enforcement of Israeli law on Israeli citizens of Judea and Samaria falls under the authority of the Israeli Police force, and not soldiers serving in the IDF. In light of that decision, the Attorney General to the Government, issued a directive "Rules for Enforcing the Law on Israelis in Judea and Samaria and Gaza" on the 2nd of September 2nd, 1998. Ehud Barak's use of IDF soldiers for these purposes is political, inappropriate, and patently illegal, with all that that implies.

The intensive use that the extreme Left has made of the Supreme Court to advance their agenda of hatred towards the settlers is not only an improper use of legal process, but an unacceptable politicization of the Supreme Court. Activists from the Left exploit the fact that the Supreme Court is unable to hear evidence or to hold orderly hearings, including joining all relevant parties to a claim, as well as the lack of right of appeal and the abrogation of right of the individual to appear before his accusers. All this is done to achieve political gains against the hated settlers, after having lost the recent elections. They proceed under the assumption that the judges of the Supreme Court hold opinions similar to their own. Beyond the abusive and political use of the Supreme Court, this has also contributed significantly to the ongoing deterioration of the faith the public has in the Supreme Court.

Injury to the State of Israel

The demands of foreign governments, in harmony with extreme left wing parties and movements in Israel and the Palestinian Authority, to enforce the law with a firm hand and by exacting power over a small group of Jews who live in outposts in Judea and Samaria, is a grave blow to the sovereignty and the right to govern of the State of Israel. There is no other country in the world that would accept this degree of blatant interference with internal matters between its citizens and/ or its policies of law enforcement on its residents.

The independence and democratic rule of every country is expressed in its sovereign legislation, which applies equally to all its citizens. The existence of law and the enforcement of the law upon its citizens is the internal concern of each state. The principle of equality before the law, which is one of the foundation stones of the Rule of Law, obligates the state to enable each citizen to affirm the law equally. If they violate the law, they must be subject to the same equal enforcement process and with the same force of law, by the state itself, and not suffer the whim of extreme racial and discriminatory pressure from foreign governments.

In Conclusion

The demand of leftist politicians to 'evacuate' outposts in Judea and Samaria is an illegal call, discriminating, on the basis of ethnicity, against the residents of Judea and Samaria. It is worth noting that their degree of compliance with the law, is much greater than in any other sector of society.

From the standpoint of the Rule of Law, enforcement must be applied equally upon every citizen of Israel, by the exclusive means of the enforcing arms, the courts of the country and the police force. It is not acceptable to discriminate against the residents of Judea and Samaria, relative to Beduin camps in the Negev, or the illegal construction which is much more common in the Arab sector in the Galilee, the Carmel, and the Ara valley.

The involvement of Ministers in general, and the Minister of Defense Ehud Barak in particular, in questions of law-enforcement in the outposts is political, inappropriate, illegal, and much more of a violation of the law than the violation of the Building & Planning regulations by the Jewish residents of Judea and Samaria.

The pressure by foreign governments to 'evacuate' outposts is unacceptable interference with the sovereign government of Israel and its internal matters. The call to enforce Israel's laws in an undemocratic, racist, and anti-semitic in a fashion that arouses the worst associations from recent and distant history of the Jewish people.

The residents of the outposts have license to take the most extreme legal measures against any person who tries to harass them, to defame them, to discriminate against them on a racial basis, to use the soldiers of the IDF in a manner which is patently illegal, and to engage the police for corrupt political maneuvers. Within that framework, it is possible and desirable to sue for personal damages from each person who violated the law, basic laws, international law, and the fundamental rights guaranteed to every citizen on an equal basis.

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