The Dweikat judgment (also known as the Elon Moreh judgment) is considered a bright spot in the Israeli Supreme Court’s case law regarding the OPT. Then Acting Supreme Court President Moshe Landau, who wrote the principal opinion in the case, undoubtedly viewed the ruling in favor of the Palestinian residents as a bold, dramatic and courageous step for which the court might yet pay the price. And thus he wrote in the opening, in an oft-quoted passage:
[T]here is great concern that the court would appear as if it was abandoning its proper place and descending into the arena of public debate, and that its ruling would be received with applause by part of the public and with utter and vehement rejection by the other part. In this sense, I see myself here as one whose duty is to rule in accordance with the law on any matter lawfully brought before the court. It is precisely this that compels me, knowing full well in advance that the general public will be attuned to the legal argumentation but only to the final conclusion, and [that] the court, as an institution, may be harmed in its proper status beyond the disputes dividing the public. But what are we to do, when this is our role and our duty as judges.[1]
The military regulated the Elon Moreh settlement project via an order in which the military commander declared the seizure for military needs of the land on which the settlement was established – private Palestinian land
How lamentable that such an introduction is needed for a judgment whose legal foundation is clear and simple: a state may not seize private land in an occupied territory in order to settle therein civilian population of the occupying state, out of ideological motivation of creating a permanent presence on the ground.
Thus wrote Dvora Recanati, one of the founding members of the Elon Moreh settlement: “We were a group of families which was called the Elon Moreh – Shechem group in the settlement of Kedumim. The goal was to establish a community as close as possible to Nablus, like Kiryat Arba near Hebron. After much nagging and lobbying, accompanied by struggles, the government approved for us the location near the Arab village of Rujeib, southeast of Nablus. Quickly, and with elation, with the blessing of our rabbi, Rabbi Zvi Yehuda Kook of saintly blessed memory, caravans were set up without foundations, water pipes were mounted on the ground, a generator, and fifteen families, some of which blessed with many children”.
[2] One such “nagging”, according to the judgment, was a sit-in protest on a road in the Nablus area in January 1979, following which the Menachem Begin government issued a promise to grant the group’s demands in return for ending the demonstration. These are the words of the resolution as quoted in the judgment:
(a) The government sees the “Elon Moreh” founding group as a candidate for settlement in the near future. (b) The date and location of the settlement will be decided by the government in accordance with the appropriate considerations. (c) In determining the settlement area for Elon Moreh, the government shall take into consideration, to the extent possible, the wishes of this group. (d) The “Elon Moreh” people are now to return to the camp from which they came.[3]
In June of that year it was time to make good on the promise. On June 7, 1979 the group settled on the land. Enhancing Dvora Recanati’s description is the fact, noted by the court in its judgment, that the “pioneers” launched their settlement as a veritable military operation, aided by helicopters and heavy machinery. Legally, the military regulated the Elon Moreh settlement project via an order, signed two days earlier, in which the military commander declared the seizure for military needs of the land on which the settlement was established – private Palestinian land.
This practice of seizing private land for military needs and building a civilian settlement on it was sanctioned by the Supreme Court in previous judgments.
[4] The rationale behind those judgments was that Israeli civilian settlements provided the Israeli military with a loyal home front thereby helping it carry out its security missions. Even if one ignores the settlers’ defiance of the military and the rule of law, it is difficult to believe that this legal mind trick was ever accepted by the Supreme Court justices. Regardless, in the Elon Moreh case, the settlers and the government itself put and the court in a position where this trickery could no longer continue.
All the circumstance surrounding the Elon Moreh settlement pointed to the fact that the community was not established due to security considerations but, in Justice Landau’s words, was “decidedly influenced by reasons arising from a Zionist worldview on the settlement of the entire Land of Israel”. Then Minister of Defense Ezer Weizman, himself a reputable security figure, voted against the establishment of the settlement. Former Chief of the General Staff Bar-Lev and Lieutenant General (res.) Matti Peled submitted opinions according to which the new settlement had no military value. The initiative to establish the settlement originated entirely in the settlers and the Begin government rather than the military. This was supplemented by the explicit statement of the settlers, who joined the legal proceedings and unequivocally stated their ideological goals and their intent to establish a permanent community – in stark contradiction of the notion that an order of seizure for military purposes is intrinsically temporary.
Under these circumstances the court was left with no choice but to resolve:
The worldview regarding the right of the People of Israel […] is based on the foundations of the doctrine of Zionism. Yet the question that again stands before the court in this petition is whether this worldview justifies taking the property of an individual in an area under the control of a military administration, and as I have attempted to elucidate, the answer to this relies on the correct interpretation of Article 52 of the Hague Regulations. I believe that the military necessities to which the Article refers cannot include, by any reasonable interpretation, the needs of national security in their broader sense, as I have just mentioned.[5]
The Supreme Court's momentous judgment did not bring an end to the ideological settlement project, which enjoyed a significant boost in the years that followed
Moreover, the settlers’ declaration, according to which government ministers and the prime-minister see the settlement as "no less permanent than “Degania or Netanya” was not denied, and such a permanent act contravenes the principle that occupation is, by definition, temporary and cannot include actions predesigned to be permanent.
Following the judgment, Elon Moreh was relocated and the Israeli government adopted, in practice, a policy whereby settlements would no longer be established on private land seized for “military needs”, but only on land declared state land. The Supreme Court’s momentous judgment did not, therefore, bring an end to the ideological settlement project, which enjoyed a significant boost in the years that followed, under the leadership of Menachem Begin and then cabinet minister Ariel Sharon. Begin promised many more Elon Moreh settlements, and delivered.
And the Supreme Court? It was content with the rule whereby private land may not be seized for the purpose of establishing a settlement. This despite the fact that the judgments’ arguments should have sufficed for a complete ban on any settlement whose foundations are not security related but rather originate in Zionist ideology and any settlement which is intended to establish permanent facts. The laws of occupation stipulate – as acknowledged by the court years before the Dweikat judgment – whereby the military commander may not take the national interests of the occupying country into consideration. He must administer the territory under military occupation and state property therein, as a temporary trustee of the permanent sovereign. He is limited to considerations of the benefit of the population on one hand and his military needs on the other. Once the establishment of the Elon Moreh settlement was found to have been done for considerations other than military – it should not have been established, either on private land or on public land. So regarding the settlement’s temporary nature: once it was found that the intention was to settle permanently, in contravention of the principle of temporary occupation, the settlement should not have been established anywhere in the occupied territory, private or public land.
In the Elon Moreh case, the Supreme Court appeared to be a staunch defender of international law and the Palestinian population against the flagship policy of the Begin government. In effect, the very narrow limitation established in the judgment allowed the state and the settlers to do as they pleased, while the court took pride in its courage.
If this were not enough, it emerges that in practice, even the narrow rule of the judgment was never upheld. According to a Peace Now report from October 2006, entitled “Breaking the Law in the West Bank – One Violation leads to Another”, 38.76% of the settlements in the West Bank are built on private Palestinian land. This includes 65% of the Elon Moreh lands in its relocation site, following the supposedly ground breaking judgment of the Supreme Court.
[6] Adv. Yossi Wolfson The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
