Monday, October 22, 2012

The Lawyer and the Prime Minister

Yesterday I wrote about Daniela Weiss and her letters to Ariel Sharon in November 1979, which offered us an interesting glimpse into the frame of mind of a leader of the settler movement in its heyday. Today, let's look at the response of the government's top lawyer, to the decision of the High Court of Justice to dismantle the settlement of Elon Moreh (based upon our publication last week on how Israel's government dealt with the court's order).

The Attorney General of the day was Prof. Yitzhak Zamir. On November 23, 1979, as the cabinet was seeking a precise formulation with which to accept the court's order but also to protect the settlement project, Zamir wrote a classified letter to Prime Minster Menachem Begin presenting his legal position. The proposed draft formulation included the statement that "the government will use legal tools to prevent harm to any Jewish settlements anywhere in the Land of Israel and will work to preserve them." Zamir was wary of this statement, for a number of reasons:

1. Such a declaration, while essentially being of a political and not a legal nature, has problematic legal implications.

2. One could interpret the statement as an attempt to save Elon Moreh, and that, of course, cannot be done in light of the court's order to dismantle it.

3. The declaration says the government will work to defend any settlements, and this would seem to include future settlements, which do not yet exist. What if such settlements are clearly illegal? Obviously the government can't take upon itself to defend illegal settlements!
4. Further, a government proclamation to defend all settlements has far-reaching implications, including even the interpretation that the government is effectively annexing the territories, or takes upon itself to pass legislation which has not yet been formulated. This may contravene international law, and it may appear to contradict the Camp David Accords [which Israel had recently signed with Egypt]. Furthermore, it's not clear what gain such a proclamation will generate. On the one hand, there may be no need for it [if no further settlements need to be dismantled], and on the other, if circumstances arise which do call for such legal action, those actions may prove ineffective [as the in present case in which the government lost the Elon Moreh case and had accepted the obligation to dismantle it].
Based upon all these considerations, Zamir suggested the government not make any such far-reaching and broad proclamation.

A few days later Zamir sent Begin another letter about Elon Moreh, this one not classified (December 26, 1979 - and keep in mind that Israelis don't celebrate Christmas, so it was a perfectly normal work week). On November 18, the cabinet had decided to accept the court's order and dismantle Elon Moreh within "four, or at most six, weeks." As always happens with government timetables, the final date was going to be missed, and Zamir had been asked to go back to the court with a request for a delay. He felt this was a bad idea:
1. The court order dealt specifically with part of the land on which Elon Moreh was built, and those specific plots have already been evacuated. Thus the government has already complied with the direct order of the court, and there's no need to request a delay of execution.

2. The court found the entire settlement to be illegal, as it was set up on private land, and the government must desist as soon as possible from being a party to an illegal act.

3. The cabinet assumed, when it made its decision, that the settlers would announce their intention to comply with the evacuation order, and thus it was reasonable to allow them a delay so that they could move in an orderly way. In the meantime, it's not at all clear they're going to move out of their own accord, so the cabinet's assumption may have been wrong [and the justification for the delay, weakened].

4. Should the cabinet now announce its intention to delay the evacuation further, it is to be expected that the owners of the currently occupied plots, who themselves didn't sue, will do so. The government cannot expect to win such a case, and indeed should avoid even getting into the situation of such a case being initiated against it.
For all these reasons, Zamir summarized, the settlers should be evacuated soon and without delay.

No comments:

Post a Comment