From Israel: Ferment and Substance.

We are dealing, shall we say, with a “high energy” time – a time of tumult and clamor and angst, sometimes with decidedly negative overtones.

But that does not mean there is no positive substance – or promise of positive substance – beyond the ferment.  Not at all.


Here in Israel there is a great deal of legislative and political ferment in response to the Amona expulsion.  (See here, young people passively resisting the expulsion, and residents leaving their homes.)

Credit: alyaexpress
Credit: alyaexpress

The legislation that addresses this situation most directly is the Regulation Bill, which is designed to protect some 4,000 Jewish residents of Judaea and Samaria from enduring what the Amona residents were subject to.

These are people with homes that were built with government assistance of one sort or another (e.g., building of access roads, laying of water pipes), on land that was not being claimed by absentee owners.  In other words, people who built in good faith and had every reason to believe the government sanctioned their building, but subsequently were confronted with Arab property claims that threaten their right to remain in their homes, or are at risk in this regard.

The Regulation Law protects them from having to leave their homes. The Arabs who claim ownership are to be offered either an alternate plot of land or financial compensation worth 120% of the value of the land they claim as theirs.  It applies retroactively – except for cases where the Court has already ruled.  There are nine homes in nearby Ofra set for demolition in a month, and now, just under the wire before the Regulation Law goes into effect, 17 homes in a neighborhood in Tapuah in Samaria.  More will follow on this.

I must emphasize once again that the claims by the Arabs are not properly adjudicated.  An Arab claimant – substantially assisted and very often directly recruited by Yesh Din or a similar NGO – produces a paper that is some sort of deed from the Jordanian king awarded during the period between 1949 and 1967.  Sometimes there is no description of the precise location referred to (no survey lines or points), and questions may remain as to the connection between the person who is presenting the deed and the person to whom it was originally given.

There are other issues as well, such as the fact that many of these deeds were conditional under Jordanian law:  the deed holder retained rights to the land only as long as he paid taxes and regularly cultivated the land.


And lastly, the reality is that the Arabs are not claiming the land in order to actually use it. They weren’t using it prior to making their claims, and almost always, they do not use it after the Court finds for them.  The goal is to get Jews after the land.  Period.

That is what makes the cry now that compensating Arabs for the land is “unfair,” as it deprives them of their land so ridiculous.  Since they’re not going to use the land anyway, they should be delighted to receive funds for it.  Except that this doesn’t achieve their real goal.


Originally, there were reports that Prime Minister Netanyahu wanted the vote on this bill delayed until he met with President Trump on February 15th. He didn’t want to surprise the president, he said.

But then he clarified (or, very possibly, reversed himself), saying he had no problem allowing the bill to go forward.  He just meant that he wanted to inform the White House before the vote:

“I act according to the national interests. In my view, you don’t surprise friends. Friends don’t surprise each other. Friends update each other. That’s what I did.”


Netanyahu stressed that he didn’t seek permission from Trump, he simply informed him.

This is a critical issue. It is imperative that we act as we see fit to act. Previously, Netanyahu was justifiably nervous about Obama. Now he prides himself on a good relationship with Trump: the two know each other for some time.

This is potentially an excellent state of affairs – as long as our prime minister does not look over his shoulder as he makes decisions for Israel. (More on this below.)


The legislation passed its second and third reading Monday night, with a final vote of 60 to 52.

Nationalists in the Knesset and the government were delighted, hailing this as a new day.

MK Bezalel Smotrich (Habayit Hayehudi), co-chair of the Land of Israel Caucus, speaking for many, said:

“This is a Jewish law, it’s a Zionist law, it’s a moral law, it’s a just law, it’s a law that is required. Thank G-d we were able to pass it.”

credit: Knesset.

He rejoiced as well because (emphasis added):

“…for the first time in many years we are bringing the decision-making process back to the Knesset, back to the people. The decision about the future of the settlement enterprise in Judea and Samaria will not be made in the rooms of the attorneys general, not in the halls of the judges of the Supreme Court and definitely not by the radical leftist organizations.”

Credit: bhol

Ah, one would hope!

But MK Smotrich may be rejoicing prematurely.  The question now is whether this bill will stand, or will be overturned by the Court, after a challenge by the political left or one of the NGOs receiving foreign funds.

Minister Yariv Levin (Likud) spoke out on this issue:

“The situation in which everyone waits until a handful of judges who are self-selected behind closed doors decide whether they like the law or not is not democratic and not correct.”


Credit: Hamishmar.

A new Basic Law that would limit cases that could be brought to the High Court has been introduced in the Knesset by Miki Zohar (Likud).

Basic Law functions as Israel’s constitution and is far weightier than simple legislation.

Entitled “Basic Law: Standing,” it would require that those who petition the Court have standing with regard to the issue at hand.

While the US and other Western nations require this, in Israel anyone can petition the High Court on any issue.  Thus has it been possible for Yesh Din to go to the Court about the land in Amona and dozens of other cases, even though Yesh Din is not connected to the disputed land at all.

The bill – which was initiated by Likud Youth Chairman David Slain, who is not an MK – was sponsored by MK Moti Yogev and MK Bezalel Smotrich (Habayit Hayehudi), MK Yisrael Eichler (United Torah Judaism), MK Akram Hasson (Kulanu), and MK Oded Forer (Yisrael Beitenu).

Although I’d love to see this pass, I will not speculate on what its chances are.  There are other efforts at work, as well, that would limit the power of the Court to override the Knesset. Watch Smotrich on this.


What we are seeing here, then, is a shift in thinking in the Knesset: an angry impatience with the excessive power of the High Court that – one way or another – may well lead to a changed situation.

And so, ferment.  Dissension.  Controversy.  And yet, coming out of this, a measure of hope for a new and better day.


A particularly positive response to the Regulation Law was forthcoming from the US, as the State Department declined to comment on it.

Not even a tepid “this may not be constructive for peace” comment.  Not now, at any rate.

There is no doubt that this IS positive. It’s more than we’ve seen in a very long time – likely ever, with regard to Jewish presence in Judaea and Samaria.  And I don’t minimize it for a moment.


But I caution that it is a conditional response. The statement from [an anonymous] State Department official, cited by AFP, was:

“The administration needs to have the chance to fully consult with all parties on the way forward.

“At this point, indications are that this legislation is likely to be reviewed by the relevant Israeli courts, and the Trump administration will withhold comment on the legislation until the relevant court ruling.”

So the US is not doing knee-jerk criticism of “settlements” in Judaea and Samaria, which is great. But the statement might be interpreted in a couple of different ways:

[] Israel is a sovereign state and we respect the process as it is unfolding, or

[] We think the law is likely to be overturned by the Court and there is no point in commenting unless it stands. If it stands, we’ll offer a critique.


What I see as exceedingly positive is the State Department warning that the PA should not challenge the law in international venues:

“We are concerned that other actors have said they may seek to challenge this measure in multilateral fora, including at the International Criminal Court.

“We continue to strongly oppose actions against Israel at the ICC as counterproductive to the cause of peace.”


This position had already been conveyed unequivocally by the Trump Administration to the PA:

“The Trump administration has warned the Palestinians that suing Israel in international courts would trigger severe steps by the US, including the closure of PLO offices in Washington and an end to economic aid to the Palestinian Authority (PA).”

“Western and Arab diplomatic sources [reported that] the message from the Trump administration was transmitted through the American consulate — and not through the White House or State Department — and consisted of a telephone conversation with a leading Palestinian official directly linked to PA head Mahmoud Abbas.

“According to the report, President Donald Trump signed an order during his first week in office to execute a congressional resolution, drawn up during Barack Obama’s term, to move against the PA and Fatah if the Palestinians sue Israel.

“’Despite that resolution by Congress, the Palestinian leaders were counting on petitioning the court [the ICC] as a means of halting the settlements. But the messages arriving from Washington in recent days made clear that any such step by the Palestinians would lead to a severe American reaction, so much so that some talked about returning the PLO to the list of terrorist organizations,’ said the Palestinian source.”


Credit: middleeasteye

Abbas and his cohorts are very fond of making threats, and threats about going to the ICC and the Security Council in particular.

This takes the wind out of their sails.

I will add here that the Administration also made it clear it would not meet with the PA until after the meeting with Netanyahu.


As far as Israel being taken to the International Criminal Court, there are highly respected international lawyers here in Israel who see this as a remote possibility.

There is, for example, Ambassador Alan Baker, currently Director of the Institute for Contemporary Affairs at the JCPA, who addressed this issue in a recent interview. He believes (emphasis added):

“…there is no chance the ICC will go after the settlement enterprise as war crimes because they do not meet the ‘gravity’ requirement – meaning that the ICC was founded to go after genocide, not housing…

“…I try to put things in the correct proportions, and it’s been taken out of proportion.”


The response by the Trump administration to the Regulation Law follows in the wake of a brief hullabaloo regarding the question of where the Trump government stands on the matter of “settlements.”

On February 2, Trump’s press secretary, Sean Spicer, included the following in a statement he made after Netanyahu’s announcement about building post-Amona:

“While we don’t believe the existence of settlements is an impediment to peace, the construction of new settlements or the expansion of existing settlements beyond their current borders may not be helpful in achieving that goal.”

The gasp here was audible: Is Trump against “settlements”?

The answer is obviously no. “Settlements” are not an impediment to peace.

Credit: Hollywoodtake.

Spicer’s statement was a very mild one. He wasn’t demanding a “settlement” freeze, but rather suggesting that construction should be within the boundaries of current communities. And he said any building beyond this “may not be helpful,” not that it was ‘illegitimate” or “illegal.”

What is more, while he referred “a desire for peace,” no where in his full statement did he refer to “the two state solution.”


After the trauma of the Obama years, every word from the Trump administration on the matter of Israel in Judaea and Samaria is going to be parsed with perhaps excessive care. The president’s policy on the matter is actually still evolving.

More important than the Trump policy, is the Netanyahu policy: Precisely what messages will our prime minister be delivering to the American head of state?

Will our rights be explained in a forthright manner?

Will there be exploration of other options in place of “two states”?

I rather like the statement of Israel’s Ambassador to the UN, Danny Danon (emphasis added):

Danon emphasized that, at the end of the day, Israel is in charge of setting policy for itself.

“…We are a sovereign nation. There’s not going to be full agreement with the US in the coming four years on every single matter, but there is the matter of communications and the conveying of messages, and it seems to me that it will be a much better period than what we saw in the past eight years.”


A final word here on the apparent backtracking by Trump on moving the embassy to Jerusalem.

It has been suggested that this was because of Netanyahu, who might have indicated that this would cause us problems here. Could be. But I have picked up information from good sources that suggests there was another factor that prompted Trump’s hesitancy:

Word is that the Sunni nations would be displeased, and Trump needs those nations should he take action against Iran. This might actually be good news – as it suggests that Trump is considering such a possibility.

Much, much more to come…


© Arlene Kushner is an expert on Middle East affairs functioning as an independent journalist  providing insight into current events as well as an analysis of historical trends. Copyright © 2014, Arlene from Israel. All rights reserved.
Permission is granted for it to be reproduced only with proper attribution.    If it is reproduced and emphasis is added, the fact that it has been added must be noted.
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