PLEASE READ: THE FREEZE IS ILLEGAL BY TED BELMAN FROM JERUSALEM

Posted By on January 9th, 2010

The freeze is illegal by Israeli law and International law
By Ted Belman

In my article Can Israel be both democratic and Jewish. I wrote that one value must trump the other.

“When these values are opposed to each other, one must trump the other. So the first question is which one trumps the other. If the legislation does so provide then that’s the end of it until new legislation says otherwise. In the absence of any such provision, the Courts would favour democracy because for them that is the most important value. The Knesset must so determine if it wants the highest value to be a Jewish state even if it violates democratic norms.”
Daniel Tauber, president of the American Legal Forum, in Israel’s Right to Build Settlements says “..the ban on settlement construction may itself violate Israeli law and its protections for human rights.”

The country’s first law, the Declaration of the Establishment of the State of Israel, is also its first law dealing with human rights. The declaration states that Israel will foster the development of the country for the benefit of all its inhabitants, will be based on freedom, justice and peace as envisaged by the prophets, will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex. In the landmark case Kol Ha’am v. the minister of the interior, the Supreme Court held that the declaration was more than just a law – it was a law whose principles would be used in interpreting all other laws. This empowered the court to more strictly scrutinize and more easily strike administrative actions which violated human rights.
In 1992, the Knesset further entrenched legal protections for human rights, approving two semi-constitutional basic laws which stated that the basic rights of human beings are founded on the recognition of the worth of the human being, of the sanctity of his life and of the fact that he is free, and they shall be respected in the spirit of the principles in the Declaration on the Establishment of the State of Israel.

One of them, Basic Law: Freedom of Occupation, protects the right of “every citizen… to engage in any occupation, profession or line of work.” The other, Basic Law: Human Dignity and Liberty, states that “the life, body and dignity of a human being must not be injured by virtue of the fact that he is a human being,” that “a human being’s property must not be harmed” and that “every person is entitled to the protection of his life, limb and dignity.”

BY 1995, on the basis of the new basic laws, the Supreme Court controversially held in Mizrahi Bank v. Migdal Village that it could review and strike laws approved by the Knesset. Right or wrong, that decision allowed Gush Katif residents and their supporters to seek judicial cancellation of the disengagement on the basis of the basic laws in the case of Gaza Shore Regional Council v. the Knesset. There, the court agreed that the disengagement “infringes the human dignity of evacuated Israelis… protected in… the basic law.”

The court further held that the disengagement violated the evacuees’ property rights and their right to engage in their chosen occupations under Basic Law: Freedom of Occupation.

So how come, it upheld the disengagement. Evidently there is an exception to the above quoted laws, namely,

“a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
This is a very important exception. It raises the issue of what are “the values” and what is “a proper purpose”. It opens the door to the Court deciding that protecting the Jewish nature of the state is a proper purpose. Were the Court to so decide, it would in no way detract from Israel being a democracy. In fact, a hall mark of democracy is the rule of law.

Tauber had other fish to fry. He ignored the exception and focused on the rule.

YET, DESPITE authorizing the expulsion of a particular class from an entire region, the court still affirmed that settlers have protected rights to their property, to choose their place of residence and make a home, family, community and life. This includes the right to physically accomplish those things – the right to build. The freeze violates that right exactly as the court described it. Unlike the disengagement, however, it was not approved in law and does not meet the above-mentioned exception.
But he doesn’t stop there.

In addition, there is the Declaration of the Establishment of the State, whose “spirit” the basic laws are supposed to protect. The declaration speaks of the “natural right” of the Jewish people to “Eretz Yisrael” and approvingly how “Jews strove… to reestablish themselves in their ancient homeland,” “made deserts bloom,” “built villages and towns, and created a thriving community.” That community extended beyond the Green Line into the heart of the “ancient homeland.”
Is this not another argument that “Jewish” should trump “democratic”. Not exactly, because,

“..the declaration also calls for equal protection and development of the country for all inhabitants, regardless of religion and race. As a restriction on Jewish settlement, the freeze utterly contradicts both the democratic and Zionistic values of the declaration.”
In effect he is saying that the Court has a duty to protect the Zionistic value of Jewish settlement of the land and an additional duty to not discriminate against Jews by preventing only them from building.

The Government attempted to avoid the “exception” by not passing “a law” to freeze Jewish construction. This, in itself, is illegal. Furthermore the Government isn’t at liberty to violate the Declaration of Independence by preventing Jewish settlement of Haaretz. (the land).

Tauber started his legal argument with the Declaration of Independence. I go back further. Not only is the freeze illegal pursuant to Israel law, it is illegal pursuant to international law.

Article 6 of The Palestine Mandate of 1922

” Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency…, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”
The Mandate has never been abrogated, nor can it be, even by the United Nations.

The the freeze is also illegal by international law.

Ted Belman
Jerusalem

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