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The "Elon Moreh" High Court Decision of 22 October 1979 and the Israeli Government's Reaction

 

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Introduction
On 22 October 1979 the Israeli Supreme Court, sitting as the High Court of Justice, announced that it had ruled in favour of the petition by residents of the Arab village of Rujeib in Samaria against the government's decision to appropriate their lands to establish a Jewish settlement called Elon Moreh, and ordered that the land be returned to the petitioners within one month.

On the anniversary of the Court's decision, the Israel State Archives is publishing a collection of documents (in Hebrew), dealing with the court's decision and its repercussions, which have been released especially for this publication. The two stenographic records and seven letters shown here were collected during work on a commemorative volume for Israel's late Prime Minister Menachem Begin, which will be published in 2013.

This publication is divided into six sections.

Background to the Filing of the Petition to the High Court of Justice
Since June 1974 the Garin Elon Moreh group of the 'Gush Emunim' movement had been trying to establish a settlement in Samaria. The group was evicted seven times by the security forces until finally, in December 1975, Yitzhak Rabin's first government agreed to settle the group temporarily in the Kadum military base in Samaria (where some of them established the settlement of Kedumim in 1977). The group's prolonged struggle made it a symbol in the eyes of the right-wing movements. After the Likud's victory in the Knesset elections of 1977, its leader, Menachem Begin, announced that "there would be many more Elon Morehs". Nevertheless, due to pressure from the American government and in order to prevent damage to the peace talks with Egypt (from November 1977 till March 1979), the Begin government established new settlements in the territories mainly in military camps, and the Elon Moreh group was forced to continue living in the army base.

The members of the group wanted to move to a permanent settlement, and they began a series of demonstrations and protest activities. These reached their peak in an attempt to settle in the Hawara region in September 1978 and a demonstration of Gush Emunim members on a road in the Nablus (Shechem) area in January 1979. On 7 January the Ministerial Committee for Security Matters decided to regard the Elon Moreh group as "candidates for settlement in the near future… When deciding on a settlement area for Elon Moreh the government will consider, to the extent possible, this group's wishes" (the quote is from the High Court's judgement on Elon Moreh). The preferred proposal for settlement was next to the village of Rujeib, south-east of Nablus. The ministers disagreed on this issue. Most of them supported settlement in all parts of the Biblical  Land of Israel, but a minority opposed the proposal to settle the group near Rujeib, among them Minister of Defence Ezer Weizman, Foreign Minister Moshe Dayan and Deputy Prime Minister Yigael Yadin – all three of whom had impressive security records. Weizman explained that his opposition was based, first and foremost, on his support for establishing a small number of large settlements in Judea and Samaria – in contrast to Agriculture Minister Ariel Sharon's approach of establishing many small settlements.

Other ministers opposed establishing Elon Moreh in that location because it would require the use of privately-owned land belonging to the residents of Rujeib. According to international law, seizing privately-owned land by an occupying power is forbidden for any purpose other than military ones. However, these ministers were faced with the government's success in the case of Beit El and Tubas (610/78, 606/78) in 15 March 1979. In this case the Supreme Court determined that the government was allowed to seize privately-owned land in Judea, Samaria and the Gaza Strip, as long as the purpose of seizing the land was to meet a security need, and differentiated between 'seizing' and 'confiscating' land. The latter is forbidden by international law to the State of Israel as an 'occupying power' in the territories captured in the Six Day War, as long as it does not impose Israeli law on these territories (as Israel did in East Jerusalem).

In the end the ministers reached a conclusion on 3 June, and permitted the group to settle next to the village of Rujeib. On 5 June the military governor of the Judea and Samaria area, Brigadier-General Binyamin Ben-Eliezer, signed the orders for seizing the land (an area of approximately 700 dunams), and two days later the settlers moved in – approximately 100 people.


House in Elon Moreh near Rujeib, 21 November 1979.
Photograph: Chanania Herman, Government Press Office

On 20 June several of the Rujeib landowners (owners of 125 dunams of land) filed a petition to the Supreme Court, sitting as the High Court of Justice, for an injunction against seizure of their privately-owned land. The petition was heard by Deputy Chief Justice Moshe Landau and justices Alfred Witcon, Shlomo Asher, Miriam Ben-Porat and David Behor – the same panel that had approved the appropriation of lands in Beit El and Tubas for purposes of Jewish settlement (File No. 390/79, Elon Moreh petition). The government gave the task of presenting an affidavit justifying the security need for seizing the land to IDF Chief of Staff Raphael Eitan (Raful). However, together with the chief of staff's affidavit, Defence Minister Ezer Weizman (through the Cabinet Secretary, in answer to the court's demands) submitted an affidavit of his own, in which he claimed that he "believes that it is possible to satisfy security needs without establishing a settlement in the above location". In addition, the petitioners presented affidavits signed by the former chief of staff Haim Bar-Lev and Ret. General Matti Peled, which denied there was a security justification for seizing the land. Thus, both sides presented  military-professional arguments to prove their claims.

The representative of the settlers, Menachem Felix, presented an affidavit to the court on their behalf, in which he explained that their main concern was not security considerations, but the commandment to settle the Land of Israel "at its very heart…in the deepest meaning of the word…the place where this land was first promised to our first patriarch". He even explained that they regard their settlement in that place as "a permanent Jewish settlement no less than Degania or Netanya".

The Government Meeting on 28 October 1979: Begin Declares that "the Government Will Carry Out the Court's Ruling"
On 22 October the judges handed down their ruling in favour of the petition and justified it with the following arguments: the initiative to settle in Rujeib was, first and foremost, a response to the demonstrations of Gush Emunim, and not a response to IDF needs; there were conflicting opinions on the issue of the security need for settling at that location; the settlers' announcement that they intended to establish a permanent settlement there, for religious and nationalist reasons.

The ruling of the Supreme Court gave rise to extreme reactions by the Israeli public. The right was apprehensive that the ruling would prevent establishment of new settlements in the territories, and might even result in evacuation of existing settlements. Some of them demanded that the Supreme Court ruling not be carried out. This was the background to a government meeting held on 28 October to discuss it. Prime Minister Menachem Begin announced at the beginning of the meeting that he requests "one decision on principle: the government will carry out the ruling of the Supreme Court, while ensuring that a site would be allocated for Elon Moreh in Samaria". Finance Minister Simha Ehrlich opposed Begin's proposed text, because it implied a condition linking the evacuation of Elon Moreh with finding it an alternative location. The Attorney-General, Yitzhak Zamir, concurred. Begin clarified his words: "Regarding the government, a most urgent issue stands now before it: a date was set and time is passing, it is gone, and such things have occurred in the past. And here, the date is conclusive, there is no other […]. What have I asked – to make a decision that we are looking for a place in Samaria. […] Today we have to solve a problem that, in my opinion, cannot be delayed". Minister of Agriculture Sharon argued that a general solution must be found for the entire problem of settlement in the territories, and even criticized the preparation of the State Attorney's case in the Supreme Court. In addition, Begin initiated a special meeting of the government, in order to discuss "the entire issue of settling the Land of Israel", that same week, on 1 November. Furthermore, it was decided that "the cabinet notes the prime minister's announcement that following the judgement […] efforts are being made to find land for the Garin Elon Moreh group to settle in Samaria" (Document 1, ISA, A/4274/4).

The Cabinet Meeting on 1 November 1979: Finding an Alternative Site
During this discussion Deputy Defence Minister Mordechai Zipori presented two possibilities for Elon Moreh's new location. The better one was in the area of Mt. Kabir (Jabel Kabir) – a rocky area located approximately five kilometers north of Rujeib. Zamir reported on the work done by the State Attorney: "[Usually] the main difficulty is in checking the books, that is, Land Registry books from various periods, the Ottoman period, the English [Mandate] period and the Jordanian period. There are many thousands of documents and the staff is working on them without a stop […] We will be able to give a final reply on Monday or Tuesday of next week", i.e., on 5-6 November. Notwithstanding, Zamir tended to support the proposal to settle on Mt. Kabir, because in this location "we are talking about State-owned land, without a doubt. That is, this is land that is registered as land owned by the State".

From this point on, the discussion centered on various problems in the settlement of Judea and Samaria, and the possibility was raised of asking the Supreme Court for a postponement in carrying out its ruling to evacuate Elon Moreh. Sharon argued that the defence establishment had expressed, ever since 1968, the need for settlements in the Nablus area. Minister of Justice Shmuel Tamir argued that the Supreme Court ruling should be applied to all 700 dunams seized in June 1979, and not only the 125 dunams for which the Supreme Court had issued the ruling cancelling the seizure order. Minister Without Portfolio Moshe Nissim supported this position. Weizman declared that "I am saying today what is in my heart", and seized the opportunity to outline his political and party outlook, while expressing his fear that the wrong action would lead to the Likud's defeat in the elections. Weizman said, on a personal note: "When my son Shaul went down to the Suez Canal [where he was seriously injured during the War of Attrition], and he didn't know what he was getting into, but I knew where he was going because I was then the Minister of Transportation (in the Unity Government), I wrote to him: 'You are going into the battlefield. When you were born I told your mother that I hope that you won't have to go to war. Now that you are going into the battlefield, I ask myself – what mistakes did we make?" He demanded that the ruling be carried out on the given date, even if no new site was found for Elon Moreh by then. Moreover, he called for a "suspension of settlement", and to be satisfied with the 16 settlements that had already been approved and had not yet been built. Minister of Transport Haim Landau presented the opposite view and called for creating "a large Jewish presence in Judea and Samaria". Zamir argued that the ruling did not constitute a threat to the principle of Jewish settlement in the territories. He also replied to the criticism voiced by Sharon at the previous meeting, and defended the work of the State Attorney. Sharon continued the argument. Among other things, he recalled a telephone conversation he had with the prime minister, in which he told him that "if the settlements in the Rafiah [Yamit] District are an obstacle – I am telling you: don't insist on this matter". The record shows that he referred to March 1976 (when Yitzhak Rabin was prime minister). It seems likely that this is an error, and Sharon is referring to September 1978, during the Camp David conference. Sharon added that "settlement is not an obstacle to peace".

"Today we must reach one practical conclusion, without which it is impossible to continue", demanded Begin. "Gentlemen, time is passing. The government was given 30 days. Since then 8 days have gone by, and we must carry out the ruling". In the end it was decided to ask the Ministerial Committee for Security Matters to determine a new location for Elon Moreh. It was also decided that the government would discuss the settlement plan for 1979/80. Due to the length of the discussions, they are presented in two versions: a shortened one containing a selection of matters discussed, and the full version (Document 2, Short Version; Document 2, Full Version; ISA, A/4274/4).

The discussion of the settlement policy for 1979/80 was held by the government on 11 November. Sharon presented his plan for widespread settlement in the territories, while Weizman rejected the plan. (For the plan presented by Sharon see the map drawn up in October 1979, File A/4140/6. The map presents Elon Moreh in its previous location near Rujeib, and designates 'Jabl el-Kbir' – Mt. Kabir – as state land.) In the end, it was decided – in accordance with Begin's proposal – to expand settlement in Judea, Samaria, the Gaza Area and the Golan Heights by reinforcing the existing settlements and adding additional ones on land owned by the state. This formula was a compromise between Weizman's and Sharon's positions. The principle of establishing new settlements was accepted without fully adopting Sharon's detailed plan. In addition, it was decided to accept the plan presented by Attorney-General Zamir and Director of the Civil Affairs Division of the State Attorney's Office, Plia Albeck, to move Elon Moreh to the southern slopes of Mt. Kabir.


Houses in Elon Moreh built in the new location in Mt. Kabir, 10 January 1980. Photograph: Chanania Herman, Government Press Office

Gush Emunim Opposition and Delays in Carrying Out the Court Ruling
Following the court ruling, Zamir wrote to Begin on 14 November 1979 that all the 700 dunams of land at Elon Moreh should be vacated, and not just the 125 dunams on which the court had ruled. Zamir warned that if the owners of the other plots petitioned against seizing their lands, they would win their case. Begin accepted Zamir's advice and on 18 November he proposed to the government that the evacuation of the plots the High Court of Justice had ruled on be completed by 22 November, and the rest be vacated within six weeks. On 21 November 1979 the above 125 dunams were evacuated as the ruling instructed. However, the settlement's houses and most of the land had not yet been vacated. Gush Emunim saw the Elon Moreh petition as a test case in their struggle over the status of Judea, Samaria and the Gaza Strip, and tied it to the Camp David Accords and the peace treaty with Egypt, to which they were opposed. On the night of 21-22 November the heads of the movement, including Rabbis Zvi Yehuda Kook, Haim Druckman and Zvi Tau met with the leaders of Elon Moreh. Following that meeting Daniella Weiss, one of the leaders of Gush Emunim and head of the secretariat of the 'Kedumim-Elon Moreh' settlement, sent a formal letter to Agriculture Minister Sharon, demanding that he resign. She attached a personal letter, in which she outlined her personal views and the political reasons why Elon Moreh should not be moved from Rujeib to Mt. Kabir. Among other things, she claimed that moving it would be a victory for the PLO, and that the legal status of the settlements in the territories should be changed before Israel transferred the oil fields in Sinai to Egypt, according to the peace agreement (Documents 3, 3a, ISA, A/4150/3).

At the beginning of December the members of Elon Moreh told Begin that they agreed to move to the new site. Begin reported this to the government on 9 December, and it was decided to begin the work on the settlement at Hill 756 (the height of the site above the sea level) at Mt. Kabir, without seizing private land. Nevertheless, Zamir feared delay in vacating the rest of the land at Elon Moreh. On 26 December he wrote to Begin and recommended completing the evacuation of the settlers from the Elon Moreh lands no later than six weeks from 21 November, i.e., up to 3 January 1980 (Document 5, ISA, A/4329/2).

However, the work at Mt.Kabir was not completed by the planned date, and therefore Begin requested on 30 December that the government delay the date. Sharon claimed that it was not technically possible to move to the new site before 25 January 1980, and even then, only if the violent rains that occurred that winter did not hinder construction. Some of the ministers were apprehensive at supporting the delay, for fear that in the end the residents of Elon Moreh would refuse to move, despite what they had said to Begin. The decision to delay "with regrets" the establishment of the new settlement by "approximately five weeks" (i.e., close to 3 February 1980) was approved by a majority of 11 to 3. The residents of Rujeib again petitioned the High Court of Justice against the delay in carrying out its ruling and the State Attorney replied that the evacuation would be completed by 3 February. On 16 January the Elon Moreh residents decided by a majority vote to move to Mt. Kabir. The move was carried out on 29 January; a small group of four families and several single people remained on the previous site and were forcibly removed by the IDF on 3 February 1980.


Move of Elon Moreh from Rujeib to Mt. Kabir, 29 January 1980. Photograph: Chanania Herman, Government Press Office

Zamir's Reaction to Sharon's Criticism
The argument about the work of the State Attorney that began at the government meetings of 28 October and 1 November (Documents Nos. 1, 2) continued in the following meetings. On 16 December Zamir sent a letter to Sharon to which he attached a letter from State Attorney Gabriel Bach, which quotes a brief prepared by Dorit Beinish, the director of the department in the State Attorney's office dealing with High Court of Justice petitions, which refuted Sharon's arguments. Nevertheless, Sharon again attacked the State Attorney at a cabinet meeting two weeks later. Zamir spoke with Begin on 6 January 1980, and detailed his arguments together with copies of his correspondence with Sharon (Document 6, ISA, A/4329/2).

The Proposed Resolution in Defence of Jewish Settlement
As stated above, right-wing circles were apprehensive that the state's failure in the High Court of Justice would lead to a halt to all settlement activities and perhaps even to the evacuation of additional settlements. Therefore, the prime minister's bureau attempted to clarify with Zamir the possibility of the government confirming the text of the following resolution: "If an attempt is made to harm the status of Jewish settlements in any part of the Land of Israel, the government will take all the necessary legal steps to ensure by law the existence of those settlements". Zamir categorically rejected the proposal in a letter to Begin on 23 November 1979. He claimed that such a resolution could be interpreted as requiring a series of actions, including "even full annexation of Judea, Samaria and the Gaza Strip – any legal step of this sort raises serious problems, not only in the political arena, but also on the legal front, and it may be contrary to legal principles, international law and the Camp David Accords" (Document 4, ISA, A/329/2).  The matter was allowed to drop.

Editors and Acknowledgements
Historical editing: Arnon Lammfromm
English translation: Shosh Orenstein (Quality Translations)
English editing: Louise Fischer
Internet content editing: Oranit Levi
Scanning: Shiran Ben-Israel and Shlomo Mark
Scanning of the settlement map: Digitization Center, The National Library of Israel

We would like to express our gratitude to Arye Naor and all the staff of the Israel State Archives who helped to produce this publication.


A Special Joint Publication by the Israel State Archives and the Center for Educational Technology (CET)