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Friday, December 2, 2016
The Erroneous Judicial Ruling of Madam Justice Naor and the Supreme Court

The Erroneous Judicial Ruling of Madam Justice Naor and the Supreme Court
Attorney Irving Gendelman 2 December 2016

1. This relates to the contentious issue of Amona and the erroneous
judicial ruling of Madam Justice Naor and the Supreme Court.

2. The touchstone of this issue relates to the question of the
ownership of the land on which the Jewish community of Amona resides. Based
upon the erroneous ruling of Madam Justice Naor and the Supreme Court, this
community is to be destroyed without any consideration of the adverse impact
on these Jewish residents. The specter of Judenrein is apparent. Madam
Justice Naor and the Court are indifferent to the human suffering which will
thus engulf these Jewish residents.

3. Among the various legal issues reported on the question of ownership
of this area, it is important to note the comments of Professor Moshe Dann
in this regard. He notes the following:

“Chief Justice Beinish declared that land which was not designated as State
Land was automatically ‘private Palestinian land,’ regardless of whether it
was claimed and used by Arabs and properly evaluated or not.”

This follows Jordanian law but unilaterally the former Chief Justice made it
Israeli law.….Therefore, simply recognizing that land grants had been
registered are ‘privately owned ‘ is sufficient to prevent Jews from using
and claiming it. Jews were and could be expelled from their homes, their
property destroyed-even when there was no legitimate Arab claimant or no
claimant at all…”

Justice Edna Arbel and Miriam Naor were participants in this decision.

Basically, Justices Beinish, Arbel and Naor unilaterally and gratuitously
conveyed ownership of this land to Jordan as against the interests of
Israel. One wonders from legal considerations how the Court empowered itself
to convey this land to Jordan. Was it a lack of judicial acumen or
essentially a derogation of Israeli interests?

4. But there is a more compelling legal consideration which discredits
the Court’s opinion whereby the Court unilaterally acts a grantor of land.
In this context, the Court was not aware of the scholarly legal paper, “ The
Missing Reversioner:

Reflections on the Status of Judea and Samaria,” Israel Law Review, Vol. 3,
No. 2, April 1968 by Professor Yehuda Blum of International Law, Hebrew
University and former Israeli Ambassador to the United Nations.

In part, Professor Blum writes:

“…the areas of Judea and Samaria prior to 1948 were under the British
Mandate. As such, it has been held that the doctrine of sovereignty has no
application to the mandate system or such sovereignty is held in abeyance if
and when such inhabitants obtain recognition as an independent State. Thus,
upon the abrogation of mandate responsibility by Great Britain, sovereignty
was not created nor gained by the inhabitants of that territory…

“ It is submitted that the external military intervention that took place on
the termination of the British mandate…across the frontiers of the former
Mandatory Palestine-including the armed intervention of the Kingdom of
Transjordan constituted a use of force in violation of the rule embodied
in Article 2 (4) of the Charter….It must be concluded that the armed
intervention of the various Arab States…was a violation of international
law…the illegality of the presence of the invading force…was not removed by
the Armistice Agreements.

“Article 2(2) of the Israel-Jordan General Armistice Agreement stipulates…’no
provision of this Agreement shall in any way prejudice the rights, claims
and positions of either Party hereto in the ultimate peaceful settlement of
the Palestine question, the provisions of this Agreement dictated
exclusively by military considerations…

“The purported annexation of the ‘West Bank’ in April 1950, was therefore
from the point of international law, devoid of any legal effect… Thus the
Kingdom of Jordan never acquired the status of a legitimate sovereign over
Judea and Samaria and enjoyed at most the rights of a belligerent occupant
there (during the period under its military jurisdiction from 1948-1967…

“After Israel secured the territories after the Egyptian and Jordanian
aggression, ‘the legal standing of Israel in the territories in question is
that of a State which is lawfully in control of territory in respect of
which no other State can show better title. Or if it is preferred to state
the matter in terms of belligerent occupation, then the legal standing of
Israel in the territories in question is at the very least that of a
belligerent occupant in respect of which Jordan is not entitled to the
reversionary rights of a legitimate sovereign…

“The conclusion reached here, according to which Israel is more that a
belligerent occupant with regard to Judea and Samaria, while Jordan could be
regarded during the period of 1948-1967, has ,of course, far-reaching
implications. It must be remembered that title to territory is based not on
a claim of absolute validity…but rather on one of relative validity. Since
in the present view no State can make out a legal claim that is equal to
Israel, this relative superiority may be sufficient, under international
law, to make Israeli possession of Judea and Samaria virtually
indistinguishable from absolute title.”

5. Thus, it is abundantly clear , based on the foregoing, that Supreme
Court decisions awarding property to Jordan and subsequently to Arabs is
erroneous and is fraught with a lack of judicial knowledge and acumen. The
Court did not have the power nor the right to convey the land in question to
Jordan and to Arab ownership. The Court decision of Madam Justice Naor
derogates and adversely impacts on the sovereignty of the State of Israel
and her citizens and concomitantly causes undue suffering on the Jewish
residents of Amona to which the Madam Justice Naor and the Court are totally

This is a singular failure of Madam Justice Naor and the Court in not
applying the proper legal principles in its judicial-making process.

Regrettably, Madam Justice Naor and the Court did not apply the basic
democratic constitutional principle of “equal justice under the law.”

6. Et tu Madam Justice Naor and the Supreme Court!
Irving Gendelman is a Jerusalem-based Human Rights Activist Attorney

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