Will the new Israeli government repeal the law prohibiting the sale of land in Judea and Samaria to Jews?
When Israel conquered Judea and Samaria in the 1967 Six-Day War, the existing laws governing the region that were put in place during the Jordanian occupation were allowed to stand in the hopes that political negotiations were imminent and would determine the status of the region. These negotiations have yet to succeed so Judea and Samaria are administered by IDF’s Coordinator of Government Activities in the Territories (COGAT) according to Jordanian laws, despite many of them being explicitly anti-Jewish.
After the issue was brought before Israel’s High Court of Justice, a question arises on whether the new Israeli government will act on the subject.
Last Wednesday, the High Court rejected a petition by Regavim, a right-wing NGO that monitors and pursues legal action in the court system against illegal construction, to compel the military commander and the Civil Administration to repeal Jordanian Law #40 prohibiting the sale of property in Judea and Samaria to Jews. The court based its decision on the grounds that “there is no call for intervening in matters of state”.
The ruling concerned Jordanian Law #40 prohibiting the sale of property to non-Muslims. The law was passed by the Jordanian government in the 1950s when they occupied and annexed Judea and Samaria in the 1948 War of Independence. The law remains in effect today even though the Jordanian occupation came to an end in 1967. Israel refrained from extending sovereignty to the territories it had liberated, holding them in a “temporary” state of limbo in order to negotiate a political resolution to the conflict. In order to bypass the prohibition against selling land to Jews, in 1971, the IDF Chief of Central Command issued an order permitting commercial entities to purchase land in the area. This allowed land purchases for Jewish settlement and development to be carried out through a bureaucratic-legal process designed to circumvent, but not annul, the anti-Jewish Jordanian law. But individual Jews are barred from purchasing land to this very day.
Last week’s ruling came at the end of a conditional order requiring the government to respond within 60 days. The government was required by the court to explain why this discriminatory law should be allowed to stand. The attorney representing the Civil Administration argued that no real harm is caused by Jordanian Law #40 to Jews who wish to carry out real estate transactions in Judea and Samaria due to the workaround solution devised by the IDF.
The state also argued that the level of political sensitivity regarding land in Judea and Samaria is immense, offsetting the racist basis of the law.
Regavim objected to the law, arguing that the technical difficulties created by this “workaround” are significant – and are nonetheless overshadowed by the inherent racism underlying the law itself, and the violation of Jews’ basic rights.
Regavim’s attorney responded: “Focusing on the quantity of transactions obscures the real issue. This is racism.”
Regavm has called on the new government and the new Minister of Defense to “repeal the racist law in force in Judea and Samaria.”
Dr. Hagai Vinitzky who is a military judge and an expert in laws pertaining to Yehuda and Samaria explained that the law is not precisely racist against Jews.
“The law permits selling land to Jordanian citizens and Palestinians unconditionally,” he noted. “It allows selling land to people of Arab ancestry conditionally. But it forbids selling land to anyone who is not an Arab. It does not specify Jews. To the same degree that the Jordanian law prohibited selling land to Jews, it also prohibited selling land to Swedish people, for example.”
He noted a loophole in the Jordanian law that underscored its true nature.
“The question that has never been asked is what would happen if a Jew who was from an Arab country tried to purchase land in Judea and Samaria,” Dr. Vinitzky said. “To my knowledge, this has not been attempted.”
Nonetheless, Dr. Vinitzk emphasized that even the court that upheld administering the law admitted that it was discriminatory by nature.
“There is certainly discrimination here and the court admitted as much,” Dr. Vinitzky emphasized. “This discrimination needs to be eliminated. But the area is under the military administration which oversees the legislation. The military does not easily accept changes in its legislation. The former Minister of Defense, Benny Gantz, told the courts that he did not want to cancel the law and anger the Palestinians and the court decided they did not want to enter into political matters.”
“Were it not for the political considerations, there is no doubt that the court would have removed such a discriminatory law,” he said. “In any case, it was surprising that they allowed the law to stand because they noted that it was discriminatory.”
Vinitzky noted that the legal conundrum could have been avoided at the outset.
“Israel should have repealed or canceled the law in the first place,” Dr. Vinitzky said. “It has made many more problems and complicated the lives of the people who live in the region. And it does not solve any political problems.”
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