The “Objective Truth” in the Strange Case of Migron

Essentially what the court did was to create a trust of the land in favour of the Palestinian people so as to bar Israelis from acquiring possessory title or the Israeli government from dealing with it according to the existing law. The Court’s decision was purely political and intended to stop the settlement enterprise. T. Belman

By: Yedidya Atlas, THE TIMES OF ISRAEL

Sara Hirschorn, in her recent op-ed in The Times of Israel, “Who Has the Monopoly on Truth at Migron?”, challenged my article “Something is Rotten in the State of Israel: The Strange Case of Migron” criticizing Israel’s Supreme Court’s decisions regarding Migron. While she is certainly entitled to disagree with me, her article missed the point.

Sara’s main contention follows the argument of the late history Professor Peter Novick of the University of Chicago that there is no objective truth. However, whether or not, objectively or subjectively, this is true or even makes sense – it is not relevant.

By definition, in a court of law the truth is determined by accepted procedures applying to evidence. In the case of Migron, the Peace Now lawyers represented Palestinian Arabs who were purported to be the registered owners of the land upon which Migron is built. The court of law that dealt with validating or rejecting the plaintiffs claim was the Jerusalem Magistrate’s Court.

In that case, the Arab plaintiffs who claimed to be the owners of what is actually only one quarter of the land upon which Migron was built were unable to produce evidence to prove their claim. In fact, Migron’s lawyer at the time, now Supreme Court Justice Hanan Melcer, proved that their claims were false, and in fact, the Peace Now lawyers of said plaintiffs subsequently withdrew their case.

Again, this did not stop Peace Now from pursuing their legally baseless petition in the Supreme Court. Justice Melcer, then Migron’s attorney, in his written response to the Peace Now petition to the Supreme Court wrote:
“The picture the plaintiffs are presenting is simplistic, incomplete and inaccurate. The land in question is vacant and rocky that has never been worked upon, and was never used by the plaintiffs for the last several decades.”

Melcer also challenged Peace Now’s veracity. “The presentation of the facts in this petition,” he wrote, “is tendentious, selective and inaccurate and indicates a lack of innocence [on the part of Peace Now]….. There is no doubt that the nature of the issues focused upon in the petition is not legal, but rather political, and is not judicable, whereas Peace Now [by its petition] abuses the legal process.”

My contention that Migron was built “at the encouragement of the IDF at the time” is modest compared to what Mr. Melcer wrote. He noted that Ministers of Defense and the IDF both supported the establishment of Migron because of its key strategic location. Then Defense Minister Binyamin Ben-Eliezer [Labor Party] declared that Migron would not be evacuated, and then Prime Minister Ariel Sharon also supported Migron. Moreover, Melcer maintained, most of the land upon which Migron is built had already been bought and paid for in full by the residents of Migron, and therefore he rejected the claim that Migron is on privately owned Palestinian Arab land.
Sara in essence agrees and admits: “In truth, the Palestinian land claim to the plot of Migron is tendentious,” but attempts to muddy the waters nonetheless claiming “although Atlas ignores the complexity of the 400-year-old legal history of land tenure in the Jerusalem district beginning with the Ottoman territorial register, and its evolution under the British Mandate and the state of Israel.”

The answer is, of course, that neither I nor Migron’s lawyer, now Supreme Court Justice Hanan Melcer, “ignored” any “complexity” because this case is not complex. It is not objective or subjective truth at stake, it is truth or falsity. The Peace Now supplied and represented Palestinian Arab plaintiffs had no legal case because they could not prove they were the owners of the contested land. Moreover, Peace Now could not produce any alternative plaintiffs who could produce court validated documentation of ownership.

Hence, the fact that then Chief Justice Dorit Beinisch ignored the very core issue of a lack of documented land ownership by the Palestinian Arab plaintiffs represented in Peace Now’s petition, rejected then Attorney Hanan Melcer’s meticulous rebuttal, and summarily ruled to displace 50 Jewish families nonetheless, sort of strongly hints “that political correctness has made a mockery of justice,” and that Ms. Beinisch’s ruling, unfortunately, “characterizes the Supreme Court as a branch of government operating with ‘open political bias’.” These are facts Sara, not subjective musings.

Your digression, Sara, into a discussion that “Of course, the Israeli settler movement — and the broader Zionist project since the pre-state period — has long had a problematic relationship with objective reality” is simply more muddying of the waters. Yes, Gush Emunim followed the ideological methodology of Kibbutz Hanita, for example, which was founded in 1938 to establish a settlement beachhead to extend the Jewish presence in the north despite serious opposition from leaders of Jewish Zionist establishment organizations in Tel Aviv, and “create facts on the ground” in Judea and Samaria. But that has nothing to do with the documented bias of the Supreme Court that can apparently ignore contrary evidence when it suits the political viewpoint of the activist judge in question, i.e.: Hon. Dorit Beinisch.

While obviously we have differing political viewpoints –your use of the term “occupied territories” and “West Bank”, while I call them by their historical name “Judea and Samaria”, not to mention your completely subjective declaration that “There is no objective truth in the Israeli-Palestinian conflict — each side makes its historical and moral claims to the best of its abilities” – but that should not be relevant to our discussion about the accuracy of my contentions about the case of Migron in the Supreme Court.

This is not a case of subjective versus the objective in determining a philosophical or historical truth. It is a simple matter, sadly, of fact versus fiction. The Supreme Court refused to wait until the Magistrate’s Court ruled and then when Peace Now’s lawyers withdrew their case in the lower court because of a lack of evidence, the Supreme Court still ruled in favor of Peace Now’s petition without documented evidence to prove Peace Now’s case. Any rational outside observer viewing these legal proceedings would easily conclude that in the strange case of Migron, something is indeed rotten in the State of Israel.

April 1, 2012 | 8 Comments »

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  1. @ yamit82:
    How can it include Yishmael, when YHWH told Avraham that the blessing and the birthright were Yitzchak’s to the exclusion of Yishmael? Likewise, when the Word of YHWH told Rachel that the younger of her twins would rule, and the elder would not be the inheritor, how could it include Esau when he likewise was overrruled? The only way for one of them to inherit it is to do as the navi Eliyahu’s friend, the navi Ovadyah did: turn away from Edom and its hatred of Ya’akov’s people and become Yisraeli. The way it’s going right now, it looks as if both the Arabs and the Israeli rulers are trying to remove the State of Israel and throw it into the Mediterranean Sea. NU?

  2. @ Shem:

    Is it not written that those who bless the b’nai Avraham, Yitzchak, & Ya’akov will be blessed, and that those who curse them will be cursed?

    Is Ishmael and b’nai Ishmael included in this blessing?

  3. @ SHmuel HaLevi:
    “Unfit” is for sure, and, as you indicate, it seems to be a term just barely scratching the surface of the “leadership’s” behavior. They bargain away “land for peace” as if they had authority from YHWH-tzevaot who deeded it to Avraham-avinu to do so, and garner instead “land for more oppression” of the people. Won’t they be embarrassed beyond words when He returns to overrule their nefarious retreats from the land and give it back to whom it belongs in the first place? HalleluYAH!

  4. Is it not written that those who bless the b’nai Avraham, Yitzchak, & Ya’akov will be blessed, and that those who curse them will be cursed? Doesn’t it appear therefore that this court has cursed itself by this evil-biased ruling for the enemies of the am l’YHWH? And, barring teshuvah on their part, a reversal of this and other evil rulings, won’t both the “Palestinians” and this court come to the same end, in defeat, indeed in ASHES, before the blazing & powerful coming of Moshiach, and very soon? HalleluYAH!

  5. The basic fact we must contend with is that Israelis for the most are unfit to lead and govern the Jewish people. That cadre has INTENTIONALLY abandoned many of the key Icons in our Heritage. The list grows by the day. Har Habait, Kever Rachel, (removed from the list of heritage sites), Kever Yoseph, Kever Itzhak and Kever Rebecca, the Ma’arat Hamachpelah itself has been removed from the list of Heritage sites just recently, etc. NONE of the “leaders” even visits to pray in those special places.
    Fleeting photo ops here and there, nothing else.
    Why may all that be? Because their intent is to replace our ancestry with post Jewish fabrications.
    There is of course a minority that may be qualified to serve in government, but the trampling “combina” never allows those few to advance in any of the functions of state.
    When a country maintains for decades on end the same self appointed unJewish “elites” in control of all functions of state, in most places that is defined as a dictatorship. In Israel that is the case. Benevolent in appearance but brutal in reality.
    In Hebrew there are quite a few hijacked words of statements adopted by that element.
    “JEWISH SECTION” is a special General Security Services sub section solely dedicated to persecute and harm the Jewish population. The KGB also maintained such section with an identical name. “YEVSEKTZIA”. The worse anti-Semitic Jews, vicious enemies, would be part of the USSR era “yevsektziah. And precisely the same type of characters serve in the Israeli one and with the same intents.
    “ISRAELI DEMOCRATIAH” It is window dressing for the constant candidacies to elections and state employment of the same Israeli unJewish elements.
    Some of them such as Peres have never been elected by the voters on his own, but the item is always there. And many of the key perennial “democratics” include most generals after retirement and the ever around present or former self elected “Judges”. Hundreds if not more of “fabricated” files have been used to harm targeted candidates or opposition forces.
    Some examples of family links…
    Sharon, scion to a MAPAI founder family.
    Hertzog, part of the former President Hertzog family.
    Burg, son of the Burg the old, Minister and Knesset operative.
    Livni, daughter of one principal of old.
    Meridor, Weitzman, Dayan, Olmert, Begin, etc, etc.

    Unless the people plow out that element nothing will change except for the worse.

    More words…
    “PEACE” Arguably the most perverted use of a word to represent precisely the opposite.
    “Victims of peace”. Only outright monsters could come up with that one.

    The people must understand the nature of the internal enemy and erase the “combinas” w/o recourse.
    FREELY elect new LEADERSHIP without any of the families or generals in there.
    Elect new JUDGES. etc.
    In the present system there is a core of viciously anti-Jewish elements that have intentionally sabotaged the people, heritage and values.

  6. @ Canadian Otter:
    In truth, Virginia, it is Washington, one way or other, who controls Israel. We can shout, scream, do a fandago and curse and swear but that is the bloody fact of life.

  7. Israel’s Knesset could pass a law restoring the principle of “adverse possession” nullified by the Israel Supreme Court and shifting the burden of proof from Jewish landowners to Arab plantiffs to prove beyond a reasonable preponderance of the evidence they have an actual case to be awarded their claim. And if such claims are proven, the government should as a matter of principle award compensation so no one suffers an undue loss. This would curb harmful judicial activism from the Israel Supreme Court and restore the rule of law.

    In a normal country, this would be the accepted rule. In Israel, where judicial dictators in black robes are worshiped like gods and their decrees are accepted as the secular equivalent of Moses’ tablets handed down from Mt. Sinai, its impossible to get Israeli politicians to recognize that courts are not always infallible nor are their decisions always right and just all of the time.

  8. Can’t see the forest for the trees?

    Too frequently we read of cases where the Supreme Court oversteps the boundaries that would apply to the supreme court in advanced and democratic countries.

    Nationalist politicians and advocates lament each decision that weakens Jewish Israel and favor the Arabs and the left. Writers fill the media with columns.

    But so far I have missed seeing a column that proposes a clear path to correct this situation at its root: by curtailing the Supreme Court’s enhanced powers.

    The fact is that it was a small group of MKs that gave the Supreme Court extensive powers that would limit the Knesset’s ability to function as the nation’s parliament!

    Not knowing the legal situation as it affects this issue, it appears to me that it could be up to the Knesset to pass a law cancelling or amending those original laws. (If not, I would appreciate a clarification.)


    From The Jewish State, by Yoram Hazony, page 48:

    In March 1992 the Knesset passed two quasi-constitutional laws (Basic Laws). The laws passed by 32-21 and 23-0 respectively – out of a Knesset composed of 120 MKs.

    These laws were written in such a way as to take prececdence over other regular Israeli legislation, thereby implicitly putting in place large sections of a new Israeli constitution.

    Justice Aharon Barak wrote a manifesto in which he declared the laws to have conferred upon the Supreme Court the authroity to strike down legislation it considered unconstitutional.

    By explicitly enumerating only universal rights and saying nothing about Jewish ones, the new Basic Laws could make it difficult for even a balanced Supreme Court to protect Israel’s identity and mission as the state of the Jewish people.

    They created a foothold for the claim tha tIsrael cannot constitutionally be considered a Jewish state.


    How can Isrel legally and peacefully correct this situation?