From Israel Hayom- MK Herzog Rejects International Law

Regarding the proposed bill in the Knesset to retroactively approve the Amona dwellings in Samaria, MK Herzog is either unaware or chose to ignore a common legal right of governments across the world-- that of Eminent Domain- to make political hay.

"There is no precedent to a government approving a law that allows people to take private property belonging to others."- Opposition Leader MK Isaac Herzog

Regardless of your position on this issue, there is in fact hundreds of years of precedent for this.
Just one example, in the United States of America- "Kelo v. City of New London, 545 U.S. 469 (2005) was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment." (from Wikipedia)

Full article below:

High Court rejects delay of Amona eviction; residents vow to fight

Politicians split over High Court ruling to move forward with Samaria outpost's eviction • Amona residents set up tent city, push for outpost regulation bill • Defense Minister Avigdor Lieberman warns: This cannot become a conflict with IDF soldiers.

The High Court of Justice on Monday denied the state's motion asking to postpone the eviction of the contested Samaria outpost of Amona by seven months, saying its original order, setting the outpost's eviction for no later than Dec. 25, must be carried out as planned.

"It appears that any length of time given, generous as it may be, is not enough [for the government]. We must take care to ensure that the deadlines determined in the ruling are not taken as a recommendation. The state's motion, which is based primarily on considerations that already weighed in the original ruling, effectively constitutes an attempt to undermine the delicate balance determined therein, and that is unacceptable," the ruling said.

The court further addressed concerns that carrying out the eviction in accordance with the ruling would lead to violence -- as the case during Amona's 2006 eviction, when residents clashed with Israeli security forces in an unprecedented manner -- stating that preventing the implementation of rulings due to such concerns cannot occur in a country ruled by law.

Given the sensitivity of the issue, there are concerns that the court's ruling may destabilize the coalition, as politicians are split on the proper course of action to take.

The outpost regulation bill, which would allow the government to retroactively grant contested Judea and Samaria outposts the necessary permits, effectively circumventing the court's ruling is set to face its preliminary Knesset reading on Wednesday. The controversial bill is being fiercely promoted by Habayit Hayehudi Chairman Naftali Bennett.

Amona residents called an emergency meeting Monday to discuss strategies to fast-track the bill and to fight the impending eviction.

Among other things, residents decided to set up a tent city at the outpost, where thousands of protesters are expected to arrive ahead of Dec. 25.

The head of the campaign to save Amona, resident Avichai Boaron, addressed Prime Minister Benjamin Netanyahu during the emergency meeting, saying, "The lives of Amona's residents, 40 families and 200 children, are in your hands. It is in your hands to save Amona, or, God forbid, to destroy it. The hand that will evict Amona on the first night of Hanukkah is your hand. We did not place our hopes in the High Court, and so we have no complaints. You are the commander in chief. We demand action, not words.

"The only way to care for us is to keep us at home via completing the legislative process for the outpost regulation bill. The responsibility is first and foremost yours, and only afterwards the government ministers'. If you do not regulate the lives of the children here, we will stand as a fortified wall along with the thousands, who will come here on evacuation day to the tent city that we will set up in the coming days in Amona to protest and to do everything we can so that Amona does not fall a second time."

Netanyahu indirectly addressed the court's ruling, saying at the beginning of a Likud faction meeting, "We are aware of the distress Amona's residents face and we are working in different ways to solve the problem."

Despite the fact that the government had two years to find a solution for Amona's residents, many in the political sphere were quick to criticize the court.

"The High Court judges have once again turned a cold shoulder to the settlements," Tourism Minister Yariv Levin said. "Once again [we hear] the intolerable screams to the heavens of entire families uprooted from their homes. In its decision today [Monday], the High Court proves that protecting human rights, a sacred value for our judges, does not apply to Amona's residents."

Culture Minister Miri Regev said, "I regret the High Court's decision. It is a cold decision that is disconnected from the public and from the complicated situation."

Habayit Hayehudi MK Bezalel Smotrich added: "As expected, the High Court rejected the state's request for a postponement. The suffering of the settlers and the expected consequences of the home demolitions without an alternative are not 'worth' a half-year delay for the court."

Speaking at a meeting with IDF soldiers Tuesday, Defense Minister Avigdor Lieberman urged Amona residents and those critical of the eviction to avoid taking out their anger on the soldiers tasked with carrying out the court's order.

"The IDF only carries out [orders], the government makes the decisions. The comments I heard this morning about opposition to the eviction of Amona are unacceptable. This cannot become a conflict with IDF soldiers -- and for those who can't take a hint, I am talking about the possibility that we will have to evacuate Amona."

At the same time, Opposition Leader MK Isaac Herzog said in an Army Radio interview that the outpost regulation bill is "a serious stain on the Israeli law book because it authorizes theft. There is no precedent to a government approving a law that allows people to take private property belonging to others."

Likud MK Benny Begin shared similar sentiments, saying, "This is a terrible bill, with the help of which people are seeking to retroactively approve the theft of land that is registered under the names of private individuals. If the bill is accepted, the law will be a stain on the settlements and will cause great damage to the State of Israel."

Despite Begin's criticism, Coalition Chairman Likud MK David Bitan told Army Radio Tuesday, "I think he needs to vote with us" on the outpost regulation bill.

Asked whether there should be free voting in Wednesday's preliminary reading, he responded, "Why should there be free voting? There is no reason to have free voting here. Regarding Begin, again, I respect him despite the fact that I disagree with him."

Bitan did, however, acknowledge that he did not believe the bill would help Amona residents, and noted that it would be retracted if another workable solution is found.

Meretz MK Tamar Zandberg said that "the government got exactly what it was after, to pass and illegal law and then to incite against the rule of law in Israel. The time has come for the government to take responsibility, explain the law to the settlers and do what it must do -- evacuate Amona."

The outpost regulation bill is expected to get a majority vote from the coalition in Wednesday's preliminary reading. It is then expected to be rushed through the Knesset Constitution, Law and Justice Committee so that it can pass a second and third reading before the December evacuation date.

Attorney General Avichai Mendelblit has expressed strong opposition to the bill, warning that it will not stand up to judicial scrutiny and will compromise Israel internationally.

"As attorney general, I am committed to helping the government realize its policy, which is now includes finding legal solutions to prevent the eviction of construction that was established with the involvement of the authorities, but these legal solutions will never fit within the framework of the law," said Mendelblit.

"We cannot accept solutions -- even through legislation -- that do not meet the requirements of the law, in this case, legislative law and international law. We also must not accept legislation that harms the status of the High Court. When the High Court rules in relation to a concrete case, wherein the state is required to demolish illegal construction on regulated private land, the state must act in accordance with the ruling, to the letter."

Palestinian Authority officials have threatened to take the outpost regulation bill to international legal bodies and to the U.N. Security Council. Palestinian Authority President Mahmoud Abbas' office released a statement, saying that the bill is "a grave step taken by Israel," and U.S. President Barack Obama's administration has also expressed concern about the move.

Israel Hayom | Israel Medical Association opposes force-feeding law

In another story related to coercion of medical procedures, there is this story from Israel Hayom (see prior related posts here, here and here). The proposed law would require doctors to force-feed hunger strikers. If a certain doctor refuses, he would be obligated to transfer the care of the patient to another doctor. There are potentially two people being coerced here, the hunger strikers and the doctors.

According to the article, the Chairman of the Israeli Medical Association claims that this clause would cause doctors to violate the Israeli code of medical ethics. But I am not certain how. Perhaps the relevant clauses are on page 24:

k) The right to continue proper medical treatment 

1. The physician shall respect the patient's right to continue medical treatment with another physician or as part of some other medical arrangement. 

2. The physician shall respect the patient's right to receive continuous treatment, with full cooperation from the physicians treating him. 

If the patient has the right to switch doctors, presumably he has the right to keep his current doctor (who refuses to force-feed him).

I never quite understood the issue with hunger strikes. How exactly do the strikers force their captors or others to release them by not eating? According to Wikipedia, it works mainly by guilt or public perception. The jailing entity does not want to suffer the public outcry that would result from the death of the prisoners while incarcerated. I guess it just depends on the will of the jailor and the striker. 

Elections for the 19th Knesset

The Knesset page for the elections for the 19th Knesset has some informative material in English, and this Hebrew warning from the Gripe Police:

 

(Translation: If you want to continue to gripe, fulfill your civic duty and go vote on Election Day. Remember, if you don't vote, your griping rights will be voided for the next four years. On Election Day, vote and then afterwards feel free to complain.)

There is scheduled to be a rally in Jerusalem's Kikar Shabbos tonight organized by the Eida Chareidis urging people not to vote. The Satmar Rebbe from Williamsburg is scheduled to attend.

The Degel Hatorah party distributed flyers this morning countering those who say religious Jews should not vote in the elections. Their main argument was that not voting is not a neutral statement. It saps the strength of the religious sector and give the anti-religious parties a greater majority.  

If you are going to attend the rally, please send in some photos, and remember according to the Knesset Election Law: Any person who does one of the following can expect to be punished... Influences the voter's choice of a list of candidates through the use of oaths, curses, excommunication, or blessings.

*UPDATE*
According to the Times of Israel, the Degel HaTorah party did not heed my warning and was offering blessings to those who vote for the party. Disaster was averted, however, when:

Supreme Court Justice Elyakim Rubinstein, head of the Central Elections Committee suggested changing the text from “blessed with” to “merited with.” Another sentence that had the phrase “will be blessed from the source of all blessings” should be altered to “will merit all goodness from the source of all bounty,” Rubinstein ordered.

Al Jazeera Explains How Israel's Elections Work

Here's a primer on Israel's electoral system from Al Jazeera of all places.

When voters go to the polls on January 22, few are expecting major changes. Binyamin Netanyahu, leading the right-wing Likud-Yisrael Beiteinu list, is almost certain to retain the post of prime minister in the 19th Knesset.

Netanyahu's would-be coalition partners, however, could play a role in changing government policy towards the prospects for peace with the Palestinians, domestic economic management and broader trends in international affairs, including how Israel deals with Iran's nuclear programme. Political analysts are split on whom Netanyahu would ask to join a coalition.

Security issues are high on this election's agenda, and social inequality has been emphasised by a number of the parties. The Israeli-Palestinian conflict has not played as prominent a role in this year's campaigns as it has in previous election cycles.

How is the government elected?

Based on a system of proportional representation, where voters select a party instead of a specific individual, Israeli elections have always resulted in coalition governments. To win an outright majority, a party would need to win more than 60 seats in the 120-member Knesset.

The minimum required for a party to win a Knesset seat is two percent of the total votes cast.

The prime minister is normally - but not always - the leader of the party that wins the most seats. He or she then negotiates with other parties to form a governing coalition.

In the 2009 election, although the incumbent prime minister's party, Kadima, won the most seats in the parliament, the Likud leader Binyamin Netanyahu was able to form a majority coalition government and become the new prime minister.

Why were elections called?

Netanyahu called for early elections in October 2012, saying he wouldn't be able to pass a "responsible" budget with his current coalition partners. He was pushing for deeper cuts to public spending.

If he hadn't called an early vote, the election would have happened in October 2013 - after the completion of the Netanyahu government's four-year term. In the past two decades, it has been rare for an Israeli government to finish a full term.

Who can vote?

Israeli citizens of all ethnic and religious groups above the age of 18 are entitled to vote. This includes Arab citizens of Israel, who generally vote in lower numbers than Jewish Israelis.

5,656,705 eligible voters can cast ballots at 10,128 polling stations, including 190 in hospitals and 57 in prisons. There are also 96 voting places at Israeli diplomatic missions abroad.

What are the election logistics?

There are 34 party lists competing for seats, reflecting a wide range of outlooks and beliefs. Prior to the elections, each party presents its platform and the list of candidates for the Knesset in order of precedence.

The Central Elections Committee, headed by a justice of the Supreme Court and including representatives of the parties holding seats in the Knesset, is responsible for conducting and supervising the elections.

Polls will open at 7:00am (0500GMT) and close at 10:00pm (2000GMT) on January 22. Election Day is a public holiday.

Who is in the current government?

Likud-Beiteinu, the governing electoral alliance led by Netanyahu, currently holds a combined 42 seats in the Knesset. 

Likud ["The Consolidation"] first came to power in 1977 under the leadership of Menachem Begin, a former head of the Irgun armed paramilitary group. Yisrael Beiteinu ["Israel Our Home"], founded by Avigdor Lieberman in 1999, has policies further to the right of Likud and is seen by many as extremist.

Kadima ["Forward"], the party founded by former Prime Minister Ariel Sharon in 2005, holds 28 seats. It is led by Shaul Mofaz, who is seen as a centist. The party promotes a two-state solution with the Palestinians. It is not polling well in the upcoming election and may struggle to win a single seat.

Labour, led by Shelly Yachimovich, holds just eight seats, and is trying to focus its campaign on economic issues, rather than on security. 

HaBayit HaYehudi ["The Jewish Home"] is set to make some of the biggest gains in this election. Currently it only holds three seats but the right-wing, religious party led by Naftali Bennett, a former special forces commander, has gained popularity.

In its first election, HaTnuah ["The Movement"] led by former foreign minister Tzipi Livni, says it supports a return to negotiations with the Palestinians and claims to be an alternative to Likud. It is expected to win about seven seats.

Led by TV host Yair Lapid, Yesh Atid ["There is a future"] is a new party that portrays itself as an alternative to the established groups. It is set to win more than six seats, according to polls.

Shas, a religious party comprised of Jews originally hailing from North African and Middle Eastern countries, currently holds 11 seats.

What are some other parties?

Yahadut HaTorah ["United Torah Judaism"], another religious party, caters primarily to Ashkenazi Haredi groups and holds five seats.

Meretz ["Energy"], a secular party newly led by Zahava Gal-On, is seen as pro-environment and left-leaning, and holds three seats.

Ra'am-Ta'al [an acronym for "The Arab Movement for Renewal"], an alliance primarily supported by Arab-Israelis, holds four seats.

Hadash [an acronym for "The Democratic Front for Peace and Equality"], a leftist party led by Mohammed Barakeh with support from Arabs and Jews, also holds four seats.

Balad [an acronym for "National Democratic Assembly"], a secular Arab nationalist party led by Jamal Zahalka, holds three seats.

The task of forming a government and heading it as prime minister is assigned by President Shimon Peres to the Knesset member considered to have the best chance of forming a viable coalition government in light of the results.

Parties remaining outside the government comprise the opposition. The Knesset member to whom the task is assigned has a period of 28 days to form a government. The president may extend this term by up to 14 days.

Is Refusing Orders Really Illegal?

The recent brouhaha over Naftali Bennett's statement and subsequent retraction calling on soldiers to disobey orders to evacuate Jews living over the Green Line is confusing to me. Many took Bennett to task for calling for soldiers to refuse orders, saying that it is a dangerous statement.

Prime Minister Netanyahu said:

"This is a serious issue. Israel's existence is based on its army. I was quite surprised to hear that Naftali Bennett supports insubordination as a personal example. I heard Moshe (Bogie) Ya'alon, who was once the IDF chief of general staff, say the right thing: 'Israel's existence is based on the IDF. The existence of the IDF is based on following orders. There can be no insubordination. Not from this side or from that side.' No one who supports insubordination will serve in my government."

But I thought the Nuremberg Trials put the "Just Following Orders" defense to rest. There are times when a soldier is expected to disobey a direct order.

I think that Moshe Feiglin had it right when he referenced the Torah portion discussing the Jewish midwives who disobeyed Pharaoh's order to kill the Jewish newborns. 

He also said:

"A country which sanctifies liberty must reserve a place of honor for conscientious disobedience.

If we refuse to do so, then we must all request Eichmann's forgiveness for executing him and throwing his ashes into the sea, as this is exactly what he claimed: 'I followed orders'."

And he later clarified: 

"The comparison I made was not intended to compare anyone with anyone else, but rather a comparison regarding the underlying principle. The principle is that a person must be able to draw a moral line for himself, and that any general statement about the requirement to follow any orders at anytime is fascist."

I think the argument made by the Prime Minister that a soldier must always follow orders is not strictly correct. I think what he, and others, mean to say is "A soldier must always follow an order to evict people from areas that the government deems necessary, whether it be for 'Peace' or for any other reason." The issue is not so much about obeying an order but about obeying orders to remove Jews from their homes, a la Gush Katif.

I found this editorial making a similar point as well.

Israel Hayom | Pollsters beware: Six months in prison for violation of rules

Although the elections are still months away, Israel Hayom had a short article today reminding Israeli pollsters of the restrictions that apply to them. The Israeli version of Nate Silver and the Fivethirtyeight blog may not be as accurate as in the US because the laws regarding polling are more strict (in fact, I don't know if there are any laws regarding polling in the US.)

From the article:

The Knesset's Central Election Commission on Wednesday warned public opinion pollsters ahead of the upcoming elections that they must follow legislated guidelines, and that those who fail to do so could face significant punishment of up to six months in jail or a fine of up to 29,000 shekels.

According to an appendix of the Election Law, "Whoever conducts a poll using known statistical methods, during the 90-day period prior to Knesset elections … will transfer the results as soon as possible, accompanied by a detailed account of the information, to the Central Election Commission."

In addition, pollsters are required to reveal the name of the organization that ordered the survey, the date or dates it was conducted, the population from which the sample pool was taken, and the number of people who refused to take part in the survey, among other stipulations.

The law also states that two days before elections to the Knesset, no public opinion polls are allowed to be published.  

I like the fact that no polls can be conducted 2 days before the election. I think this helps to ensure that people are not discouraged from voting based on poll data whether accurate or fictional.

For a paper on Israel Election Laws see Eyes They Have, But They See Not. And to read some background regarding the upcoming Israeli elections see here.

Prime Minister Reports on President's Travels

Today's post is just a little quirky piece of Israeli law.

I recently saw a public notice in Reshumot, the official gazette for the publication of records and laws in Israel, that made me do a double take. It is a notice "signed" by the Prime Minister, Binyamin Netanyahu, notifying the public that the President, Shimon Peres, left the country for 3 days. That's all it says.

Apparently, according to the Basic Law: The President, the Prime Minister must notify us of the President's travels outside the country:

24.(b) The Prime Minister shall publish a notice in Reshumot as to the President's leaving the territory of the State and as to his return.

This is the notice in Hebrew:

הודעה על יציאת נשיא המדינה את גבולות המדינה ועל שובו

לפי חוק–יסוד: נשיא המדינה

בהתאם לסעיף 24(ב) לחוק–יסוד: נשיא המדינה , אני מודיע על יציאת נשיא המדינה את גבולות המדינה ביום ב' באלול התשע"א (1 בספטמבר 2011) ועל שובו ביום ה' באלול התשע"א (4 בספטמבר 2011).

י"ב באלול התשע"א (11 בספטמבר 2011) (חמ 3—1300)

בנימין נתניהו

ראש הממשלה

Now this notice was published on September 26, 2011 even though the President had already returned by September 4th. I guess we just need to be apprised of the President's travels but not for the purposes of knowing his itinerary.

I checked the President's website but didn't see any press release for those dates, so maybe it was a pleasure trip. If you live in another country and met with the President between September 1st and 4th, please let me know.