The President of the Supreme Court Justice Barak said in a speech to the Bar Association Conference in Eilat last May that:
"The courts are the defenders of democracy. The courts are working with all their capability with the tools they have to establish Israeli democracy, because they know that if they do not defend democracy, it will not defend us.
Democracy is a power of values, principles and human rights that the majority cannot take from the minority."
This article will examine the extent to which these values have guided the conduct of the Supreme Court in the case of Iqrit.
Iqrit was occupied on 8 November 1948. The Israeli army ordered its inhabitants, together with those of the neighboring Palestinian village Bir'im, to leave their villages due to security concerns along the nearby Lebanese border. They left on the basis of assurances that they would be permitted to return within fifteen days. When this did not happen the residents turned to the courts.
The High Court (the first petition) ruled in July 1951 that the residents of Iqrit were entitled to return to their village because the reason for the temporary evacuation no longer existed, and no legal grounds existed to deprive them of their right to return. (HCJ 64/51 Dawwod vs. Defence Minister 1951, P.D. 5(2): 1118).
However, the military defied the order, issued the inhabitants with expulsion orders and destroyed both villages. The subsequent second petition of Iqrit was denied (the second petition) (HCJ239/5 Dawood vs. Committees for Security Zones 1952, P.D. 6(1): 229).7
The use of the emergency legislation, in this case the 1949 Emergency Regulations (Security Zones), to seize for the state large areas of Palestinian land, must be viewed as an unjustified interference with the fundamental rights of the Palestinian community to peaceful enjoyment of their property. International law does not allow states unlimited power to violate rights in times of emergency, and has developed standards governing such situation. Restriction of rights by the use of emergency powers must be exceptional, temporary, proportional, and only to the extent strictly necessary; and some rights, such as the prohibition on discrimination, can never be derogated from even in time of emergency.
In 1953 the Knesset approved the Land Acquisition Law. On 28 August 1953 the Ministry of Finance expropriated 24,591 dunums (24,591 km2) of Iqrit's lands. The lands were given to the Development Authority and were registered in the name of the state. The 1953 Land Acquisition Law stated in section 2 that a property which on 1 January 1952 was not in the possession of its owners, declared as confiscated by a Minister, used for necessary development, settlement or security, and is still needed for those purposes, will be transferred to the ownership of the Development Authority. The lands in question in Iqrit were used for Jewish housing, industry and agriculture.
In November 1963 the Military Commander issued a closure order according to Regulation No. 125 of the 1945 Emergency Regulations that forbade entry to the village.
The residents of Iqrit re-applied for their re-settlement in the village, but the government headed by Golda Meir decided in July 1972 that the residents of Iqrit and Biri'm would not be allowed to return to their villages, and would be compensated and re-settled in their existing residences.
The case continued to be present in public discourse, and in 1977 the new government of Menachim Begin nominated a Committee headed by minister Ariel Sharon to examine the issue of the return of the residents. The Committee decided not to allow their return.
In 1981 the residents issued their third petition to the Supreme Court, in which they requested the cancellation of both the closure order and the confiscation of their land. The petition was denied on the grounds of the long time delay. The Court assumed that the expropriation was legal and that there was no change in the security situation that should justify the cancellation of the orders. (HCJ 141/81 Committee of Iqrit vs. the Government of Israel 1982 P.D 36(1): 129).
In the early 1990s several drafts of laws allowing the return were advanced by different Knesset Members, but none were passed.
Nevertheless, the former residents continued their campaign to return to the village. In 1993 a Ministerial Committee was appointed by Minister of Justice David Libai to advise the Rabin government how to resolve the problem of Iqrit and Bir'im. This Committee took the view that in this particular case there was no reason of state security to continue to prevent those evacuated from returning to their villages. They determined that it would be possible to restore a limited area of land without harming the rights of those who had subsequently settled in the area.
The Committee recommended that a total of 600 dunums (0.6 km2) be given to each village (Iqrit and Bir’im), and that the Israel Lands Administration (ILA) be responsible for defining which particular land this would comprise. This was less than 10 per cent of the land originally owned by inhabitants of the two villages. Each head of a family that had resided in the village in 1948 would be entitled to 500 metres on which to build a house, which he could assign to a family member of his choice. If the head of family was dead, a Committee would decide which family member would receive this privilege. At the same time, the person acquiring the rights would be required to sign a document giving up any further rights to land in the area.
Stalemate followed the Committee's recommendations. On the one hand branches of government refused to implement them, while on the other, the people of Iqrit and Bir'im rejected them as inadequate, arguing that their effect would be to limit the numbers who could return and live on the land, and to leave no scope for the future agricultural and economic development that would be vital to establish employment opportunities.
However, the government did not make a decision on the recommendation, and in the elections of October 1996 the government changed.
In February 1997 the petitioners issued a new petition (the fourth petition) in which they claimed that the security situation had changed, and that no doubt existed on this point, or on the point of their right to return to the village.
On 10 October 2001, the Israeli cabinet finally issued its decision (on the recommendations of the Libai Committee). There was no reason, the government said, to change the decision of Golda Meir in 1972, which was to refuse to allow a return to the two villages on the grounds of security concerns and because it would set a precedent for other displaced Palestinians.
Four years after the fourth petition was submitted, an affidavit was issued to the Court by Prime Minister Ariel Sharon in which he claimed that promises were given to the residents by the authorities, that these promises were not confirmed by the government, and that the government could act freely when political will existed. He added that the issue was strongly raised at Camp David negotiations, and the subsequent wave of hostility strengthened the possible implications of such a decision. A precedent regarding the return of evacuated residents will be used politically and for propaganda purposes by the Palestinian Authority.
The petitioners claimed that there is no link between their right to return and the issue of the refugees, because they are Israeli residents of whom it was demanded that they change residence temporarily.
The petitioners based their demand to return to their village on three grounds: the lack of a security reason for the issue of the closure order; the promise of the state; and the new precedent given by the Supreme Court in the 1990s regarding the ability of the government to cancel a confiscation.
In its decision on this fourth petition issued in June 2003 the Supreme Court agreed that threre is no longer a justification for the closed order (Supreme Court Justices Donner, Englarat, and Procatichica. Petitioners: Alawi Sbit & others versus the government of Israel, Ministry of Defence and others. The decision has not yet been officially published, but is available on the Supreme Court website. HCJ 840/97).
The security bodies agreed that there is no justification for the closure order other than political reasons.
The Court stated that without allocation of land by the state to the residents of the villages there is no practical way to settle the issue.
With regard to the promise of the state, the Court stated that the Israeli government did not consolidate a formal decision to cancel the decision of the government headed by Golda Meir to prevent the return of the displaced inhabitants to their villages.
However, a state promise was given, or it may be assumed that such a promise was consolidated by the behaviour of the authorities during tens of years. This ranged from the IDF officer who ordered the evacuation and promised the villagers` return to the village, to the Committee set up by Minister of Justice David Libai which stated that the villagers are permitted to return.
The Court also stated that an administrative authority could be released from a state promise if there is a legal justification such as a change of circumstances that justifies the rescinding of the promise. It continued: in our case, the Libai Committee based its recommendations, inter alia, on political changes that have occurred in the area, including the peace treaty with the Palestinian Authority (the Oslo Agreement). However, the political reality since that time has changed and the Palestinians have repeated their demand of the right of return. The precedent of the return of the displaced inhabitants might harm the interests of the state. In these circumstances there is no place to enforce the state promise to settle the displaced in the Iqrit area. Nevertheless, the petitioners have the right to an alternative enforcement by the allocation of land or compensation.
The petitioners had referred to the statement in the Libai Committee`s report that indicates defined areas near Iqrit and Bir'im on which community settlements could be built without causing harm to the neighbours. The petitioners claimed that these areas are still not used, and therefore are not needed any more for the public interest for which they were confiscated. Therefore, in these circumstances, the Minister of Finance should cancel the transfer of the ownership of the land to the Development Authority. The Court denied this claim by stating its reliance on the state's affidavit in which the state itself declared that the lands are occupied.
The Court stated that the precedent given in the Kirsik Case in 2001(HCJ 2390/96 Kirsik vs. State of Israel 2001, P.D. 45(2): 625) regarding the jurisdiction of the court to cancel a land confiscation is not applicable in these circumstances. Ownership of the land of Iqrit was transferred to the Development Authority according to the 1953 Land Acquisition Validation of Acts and Compensation Laws, i.e. a different law than the one that served as the basis for the decision in the Kirsik Case (1943 Acquisition of Land for Public Purposes).
The role played by the Israeli High Court in the cases of Iqrit and Bir'im is interesting in that, unusually, it was willing to rule in favour of the Palestinian owners, at least in the initial stage. Subsequently, however, the Court was not willing to confront the executive and has continually deferred to the government in seeking a solution.
The Supreme Court adopted the state's standpoint: the state and Zionist movement's fear of the precedent of the right of return of the Palestinians. The decision given by the Supreme Court contradicts basic principles of democracy and the rule of law as set out by Justice Barak in the quote at the beginning of the article. The Court did not defend the minority from the power of the majority - on the contrary it gave it a legal justification.
|Conversation with the President of Israel's Supreme Court
by Mazen Qumsiyeh
Aharon Barak, the President of Israel's highest court, came to Yale University to speak at a Morse college 'tea'. Yes, literally we had tea and cookies for him. His talk was titled "The Legal Framework of the Fight Against Terror: The Israeli Experience." Mr. Barak spoke about attempts to 'balance' the rule of law and 'right against terror.' …
After the public part of the talk, I had a chance with him for a few minutes and so I asked about the Israeli Supreme Court decision of 1951 which told the government to allow Palestinian villages to return to the two villages of Iqrit and Bir'im. For 52 years, the government refuses to implement this decision. Barak said that he knows the case well and he thinks they will be allowed to return 'after we sign the peace treaty.' I answered that this is unusual (hypocritical) as these are ostensibly Israeli citizens and he had earlier said that any one who is within the border is treated equally. Here he was whisked away by Mr. Weil, master of Yale's Morse College who arranged this event.
Mazen Qumsiyeh is Co-founder of the Palestine Right to Return Coalition
This ruling by the Supreme Court regarding the right of people who were displaced from their village during the 1948 war and who became Israeli citizens, represents the official position of the state regarding the right of return of displaced Palestinians who are Israeli citizens. As quoted in the judgement on this fourth petition, the officer who gave the affidavit to the court is no less than Prime Minister Sharon - who stated that the implementation of the right of return could endanger the security values of the state of Israel, and be used as a precedent by the Palestinian Authority in their negotiations with Israel.
Therefore there is a common viewpoint between the executive authority and the judiciary regarding the right of return. Here it is useful to quote the recent statements of Ephraim HaLevi, the former head of both the Mossad and the Israel Defense Council:
"We should demand from the Palestinians that they acknowledge the legitimacy of Zionism. They should acknowledge that the Zionist project is legitimate as they demand that we should acknowledge a Palestinian state. This acknowledgement should not be tacit or implicit - it must be very clear […] This acknowledgment of the right of existence is different from the acknowledgement of existence itself. The Palestinian right of return cancels our right of existence. The right of return is more dangerous than the return itself … the acknowledgement of the right of return means to acknowledge the right of four million people to come back here, even if they do not actually do so, as the Palestinian leadership claims. Giving the right of return will transfer to the Palestinians that basic right of property in the homeland and will de-legitimise Israel. The right of return means no right of Israel to exist. We must demand that the Palestinians cancel the right of return."
In my opinion the statement of HaLevi represents the Israeli national consensus – the official as well the public viewpoint – regarding the right of return.
Hussein Abu Hussein is an Advocate, Arab Association for Human Rights (HRA)
The article was originally prepared for the BADIL expert forum. The second part of the paper, which provides an an overview of the strategy of the Israeli state towards Palestinian land, is available on the BADIL website.