This article appeared in Hebrew in the Tsedek magazine of Makor Rishon of Friday October 10th 2013
Translated by Sally Zahav for Women in Green
He’s cheerful, polite and expresses himself well, but it’s clear that behind the façade of Col. Doron Ben-Barak, the Legal Adviser of Judea and Samaria, there is a hidden agenda that is very hostile to the communities of Judea and Samaria. There is no other way to explain why he invented a new procedure just in order to delay the entry of Jews into ‘Beit haMachpelah’, after the prime minister had issued instructions for it to be inhabited; why he turned to the High Court with an appeal against the lower court’s ruling to disclose the information of the Land Registry in Judea and Samaria and how he took it upon himself to deprive Jewish farmers of their lands.
Minister of Defense Moshe Ya’alon sees it all, and quietly submits.
“Freedom of information” is undoubtedly one of the most significant banners that Tzipi Livni waved when she entered the position of Justice Minister.
Just this week, her media consultant issued an announcement saying that according to the instructions of “the Justice Minister, new regulations have been formulated, that reduce the fees to apply for information by 80 percent. Likewise, three groups will hereafter be exempt from payment: the needy, social organizations and academic researchers”. Spokeswomen Mia Bengal and Ornat Cohen quoted Livni’s words, according to which, “in a properly run democratic country, money is not an obstacle to prevent the public from obtaining the information that it has the right to obtain.” This is not a new policy, since the Justice Minister declared when she first entered her position that to her, transparency is a “foundational value”.
In light of this, the petition that the Regavim organization served to the Court for Administrative Matters in Jerusalem should have been received without any objection. Through its representative, Attorney Amir Fisher, the organization demanded – in accordance with the Freedom of information Law – the text of the Tabu (Land Registry Office) for areas that border the community of Psagot in the Benjamin district.
A short background: The Land Registry in Judea and Samaria is not accessible to the public. Contrary to the norm within the “Green Line”, where anyone can enter the Internet site of the Land Registry Office (Tabu) and find the registered owners by himself simply and easily, in Judea and Samaria it’s an ordeal. One must be the owner of the land, be a mandated proxy, or have connections in the Israeli Civil Administration to obtain the information, because otherwise you’ll never know in whose name the land you are interested in buying is actually registered.
This anomaly opens the door for endless attempts at fraud and treachery.
Many of those who have tried to acquire land in Judea and Samaria have found that after acquiring the land and paying for it, the seller has given him fraudulent credentials of ownership, and different owners are actually listed. The lack of transparency creates a built-in market failure, where citizens who do not have intimate connections within the Civil Administration are almost totally unable to acquire land for themselves, and this is true even within the “Blue Line” of communities where one can progress in the procedures for building permits. This is what cripples the housing market because of the scant land that remains in the country under the full control of the Israel Civil Administration and the few companies that are allowed to work with the Israel Civil Administration.
Leftist organizations that demand unknown settlements in Judea and Samaria to be uprooted repeat over and over that these communities were illegally established on “private Palestinian land”. This point was the basis of Regavim’s petition, which seeks to establish the community of Psagot legally and legitimately. “The reason that it is important to obtain information is so that the Jewish community of Psagot will be able to grow by acquiring land from its owner and to prevent fraudulent practices, which might result if the community does not have the registered information regarding the right of ownership”, the organization noted in its petition.
The Judge of the Regional Court of Jerusalem, Dr. Yigal Marzel accepted the petition, and instructed the Israel Civil Administration to disclose the information in the Lands Registry. Judge Marzel found that according to the principles of international law, Jordanian law and military regulations, the principles of the Israel Civil Administration also apply in Judea and Samaria. In light of this, the judge rejected the position of the Israel Civil Administration, and determined that according to instructions of the Freedom of Information Law, the obligation to “reveal information that resides in the public domain” applies, and that it is not logical to claim that the Lands Registry listing should only be given to “the concerned party”.
The Palestinian Interest
The ruling was given, but Col. Doron Ben-Barak, the Legal Adviser for Judea and Samaria, fought energetically to appeal and overturn it. Using his liaison from the office of the Government’s Legal Adviser, Yehuda Weinstein, who is Dina Zilber’s deputy, an appeal of Judge Marzel’s ruling was served to the High Court. The appeal, served by Attorney Uri Keidar of the State’s Attorney’s Office, includes approximately twenty paragraphs almost all of which begin with the words “The lower court has erred”, and the interesting part is the content of the claims.
The appeal does not include any pertinent or intrinsic reference to Regavim’s simple claims. But its main point is the consternation of the State’s Attorney’s Office over the very idea of the application of Israeli law in Judea and Samaria. “The lower court has erred, because in examination of the ruling it arises that the court viewed the request of the appellant as if it was a request served in Israel”, was written in the appeal. The State’s Attorney’s Office emphasizes that “this is a subject that is intimately connected to the area (Judea and Samaria – Y.Y.) and its link to Israel is extremely weak – if there is a link at all”.
You read correctly: according to the claim of IDF officer Ben-Barak, the link between Judea and Samaria and the State of Israel is extremely weak – if it exists at all. In light of this, he claims that the court may not deal with the petition as if it were a regular petition served within the area of the State of Israel.
In another paragraph the claim is sharpened: “The ruling causes a change to the customary law in the area, and there has not yet been an investigation of whether this is consistent with laws relating to belligerent occupation and whether it promotes the best interests of the protected population”.
Rashi’s** interpretation: It is impossible to apply transparency and freedom of information in Judea and Samaria without first proving that it will promote Palestinian interests. The clue here is fairly clear -promotion of transparency will open the land market to private Jewish initiatives, which will increase Jewish construction in Judea and Samaria. One can only assume that Palestinian interests, according to Ben-Barak, do not include the interests of the thousands of Palestinian construction workers who would have work in the communities as a result of opening the market, but rather only the interests of the Palestinian Authority, which is interested in preventing any normalization and any hint of coexistence in the region, in order to continue to wring political concessions from Israel.
The appeal also relates to another point that arose in the regional hearing, which is the difference between the rights that organizations of the European Union have, who pour millions of euros in to strengthen Palestinian holdings in Area C and which have free access to the Tabu registry in the Administration, in contrast to the rights of the Jews, who are prevented from obtaining the information. Ben-Barak explained the difference saying, “This is a unique case with different circumstances and there is no general analogy to be drawn from the request of the petitioner”. The bottom line is that the State’s Attorney requests the High Court to rescind the decision of the regional court and to require Regavim to pay the court costs for both of the court actions.
Betzalel Smotritch of Regavim claims that “Doron Ben-Barak has one goal – to make it difficult for Jews to purchase land and to prevent the development of the settlement project. As long as a community is based on state lands, the decision of whether to allocate lands is controlled by the State. The moment that there are purchases on a private basis, it will become much more difficult over time to prevent planning and building permits for political reasons”.
Smotritch directs most of his criticism to the politicians: “There is no justification for the submissiveness of defense minister Moshe (Bogie) Ya’alon and the politicians in general to these minor bureaucrats within the legal system. After all, the ruling of the regional court determined that the Registry’s details must be disclosed, but Ben-Barak is now trying “to find legal solutions” to circumvent the ruling and enable the continuation of the policy, which is not at all authorized to determine.
Is retired Lt. Gen. Ya’alon subordinate to a legal official with the rank of colonel?
The problem with Doron Ben-Barak is that he is sharp, suave and sophisticated, which makes him appear like amenable, but hides a clear and aggressive political agenda that is both controlling and dangerous.
Doron Ben-Barak was born in the winter of ’73. He grew up in Ramat HaSharon, was certified for the practice of Law in the Hebrew University in Jerusalem in the year 1995, and since then has filled several positions in the military legal department, the last of which is Deputy Legal Advisor for Judea and Samaria. He was appointed as Legal Adviser of the area of Judea and Samaria fourteen months ago. He is married and the father of two, likes running and performances of esoteric Rock groups.
An Unprecedented Demand
Another battle that Doron Ben-Barak joined was against the habitation of “Beit haMachpela” in Hebron. As may be recalled, the residents entered the house after buying it, about a year and a half ago. Relatives of the sellers, of the Abu-Rajeb family from Hebron, turned to the government’s legal adviser Yehuda Weinstein, demanding to evict the buyers, while the sellers themselves were rotting in a Palestinian jail. He instructed the security forces to evict the Jewish residents from the building from considerations of “maintaining the public order”. The reason that the State’s Attorney gave to the media was that a permit for the transaction was not issued by the head of the Israel Civil Administration for purchases, and according to Security Regulation in Judea and Samaria no. 25, a transaction done without a permit is null and void.
The Transaction Permit is a technical procedure intended to assure that the purchase is done according to law, and without extortion or threats. The Real Estate Staff Officer in the Civil Administration, to whom the purchasers turned to obtain the permit, rejected the request and wrote to the supplicants that he would not even raise the issue of the request with the legal adviser, because as he saw it, “there were flaws in the purchase”.
Behind the scenes, it was Doron Ben-Barak who prevented granting the permit of purchase.
Counsel for the purchasers, Attorney Doron Nir-Tzvi, petitioned the Military Appeals Committee claiming that the Real Estate Staff Office and the legal adviser for Judea and Samaria acted contrary to their authority. Among other things, in the petition it was claimed that the authority of the Real Estate Staff Officer is limited to technical oversight of the purchasing procedure and that neither he nor the legal adviser have any judicial authority to either reject or permit land transactions arbitrarily.
The appeals committee, which is the relevant legal body for the matter in the military court, rejected all of Ben-Barak’s reasons and issued criticism of the Lands Staff Officer’s conduct. Professor Chaim Zandberg, international expert in the field, wrote the main ruling. The committee handed the case back to the Staff officer and instructed him to reexamine – substantively – the documents of the purchase, in order to supply the purchasers with the desired approval.
Events took an unexpected turn during the intermediate days of the last Sukkot holiday, with the murder of the soldier Gal Kobi near the Cave of the Patriarchs in Hebron. As a result of the murder, Prime Minister Benjamin Netanyahu ordered the immediate occupancy of “Beit haMachpela”. Ben-Barak, who was required, in point of fact, to carry out the decision of the appeals committee and grant the approval of purchase, adopted a clever strategy:
with a peculiar legal action, he issued the approval, but added a paragraph in which it was written that despite having issued the approval to the Jewish owners, they cannot occupy the building until it has been registered in a “preliminary registration procedure” – a procedure similar to registering in the Tabu. This procedure, which can take many years until all of the objections have been dealt with, is intended to delay the occupancy of the property as long as possible.
Counsel for the purchasers, Attorney Doron Nir-Tzvi, explains the absurdity:
“In any normal transfer of real estate in a proper country, you pay money, sign a contract and get the keys. The transfer of the Tabu is done afterwards in one’s free time, and there is no stipulation of time between registering in the Tabu and your right to live in the property that you bought. In the State of Israel, there are very many citizens who live in buildings that are not registered in the Tabu. Especially in Hebron, where almost no Palestinian has registered his building with a preliminary registration. “Beit haMachpela” itself was purchased from owners who lived in the property for 14 years without applying for a preliminary registration”.
What Authority does the Staff Officer of Real Estate Have?
“He has immense authority, and he is actually the registrar of real estate in Judea and Samaria. But he, as well as the head of the Civil Administration Brigadier General Moti Almoz, and even the minister of defense Moshe (Bogie) Ya’alon – are all nothing but a rubber stamp for Doron Ben-Barak. The latter has a jovial, pleasant and charismatic image, but he still knows the system well from his previous role as Deputy Legal Adviser and manages to promote positions that are legally invalid. He has a clear leftist agenda and he imposes it on the system. Our situation is difficult – ‘slaves have ruled us and there is no redeemer***’”.
MK Orit Struk explains that “There is no enemy of the settlement enterprise like Doron Ben-Barak. His decision to require preliminary registration is an insult to the prime minister and the minister of defense. The prime minister decided that ‘Beit haMachpela’ should be inhabited, and when he (Ben-Barak
Y.Y.) saw that he had no legal basis for objection, he brought this rabbit out of his hat”.
Is there any precedent in any location where preliminary registration has been required before occupying property that was legally purchased?
“Not at all. This is his personal invention, and with it he has turned the instructions of the prime minister into a joke. No doubt, this is one of the worst cases of a legal adviser’s absolute control and the politicians’
total submission to it.”
Some anonymous person involved in the settlement project, who knows the relevant parties well, says of the Lands Staff Officer: “The present Staff Officer is a young man by the name of Tomer Carmi. He was parachuted into the system despite the fact that he doesn’t know one word in Arabic. He was the assistant to the legal office’s general manager (Guy Rotkoff – Y.Y.), and the general manager decided that the requirement to know Arabic is not important. Actually, he is a rubber stamp for Doron Ben-Barak, and he himself does not know the difference between right and left. I don’t get the impression that he has an agenda of his own. Remember that the position of Staff Officer is like a nail with no head. The previous Staff Officer (Sami Gabai – Y.Y.) held the position for more than thirty years and made lots of trouble for us”.
An Invented Procedure
If the matters of freedom of information and “Beit haMachpela” in Hebron can still be interpreted as isolated decisions, the most disturbing event in Ben-Barak’s career is without doubt the invention of the “procedure for dealing with conflicts over private and ownership” – a procedure that is an “upgrade” of a previous edict called the “procedure for disruptive use”. The details of the procedure show that there is nothing in common at all between the declared purpose – dealing with land conflicts – and its real purpose.
It is not within the scope of this article to go into a full description of the procedure and its implications. In a nutshell, in this procedure, the Legal Adviser of Judea and Samaria authorizes himself to prepare an opinion regarding who is the owner of the land, and even grants himself the authority to determine who has the right to own land and to command that it be evacuated. The procedure determines that if the Legal Adviser for Judea and Samaria decides that the holder of the land does not have the “right of ownership”, then neither party will be allowed access to the land. At his point, a clarification procedure is supposed to occur, at the end of which, the Legal Adviser for Judea and Samaria will be the sole arbitrator to decide who the owners are.
In this procedure, Ben-Barak appointed himself without any apparent authority, as examiner, judge and executioner. The Legal Adviser is not authorized to make administrative or judicial decisions, because he is, in essence, the administrative authority’s Legal Adviser and not a judicial body. What began with the Procedure for Disruptive Use, which received unprecedented criticism in the report of the Levi committee (and which was reviewed at length in the past in the “Tzedek” supplement), has become a scandalous procedure, lacking any restraints and contrary to any judicial norm.
In reality, this procedure serves only one goal: expulsion of Jewish farmers from the land that they have worked legally for decades, as a result of petitions lacking any factual or evidentiary basis that leftist organizations serve up wholesale.
Take, for example, the story of Dalia Har Sinai from Sussia. Yair Har Sinai (may G-d avenge his blood) purchased and worked parcels of land in the area of Sussia until he was murdered by Palestinians in 2001. Dalia took over, and since then she has been managing the farm and the lands that have been worked in the farm for more than twenty consecutive years.
Leftist organizations enlisted a Palestinian who claimed that the land belongs to him. He could not bring any meaningful legal evidence, but Doron Ben-Barak used the procedure that he himself invented, to demand Dalia to evacuate the area without any legal due process or evidence. Har Sinai claimed that the Legal Adviser – as important as he may be – is not a judicial body with authority to determine the outcome of a land conflict, but Ben-Barak did a simple trick: he got Nitzan Alon to sign a military order instructing Har Sinai to vacate the land as if it was for security reasons. Alon, with his authority as military commander of the area, can sign on such an order.
Attorney Amir Fischer, who represented Har Sinai and knows Doron Ben-Barak well, testifies: “Ben-Barak is very bright and pleasant on a personal level.
He honors his interlocutors, is extremely aware of details and behind the scenes, gets Nitzan Alon’s backing. These qualities enable him to take decisions instead of the head of the Administration and in practice, to manage Israel’s policy in Judea and Samaria” by himself.
What is his professional world view?
He sees himself as an authority in the field, as the boss whose role is not to serve his superiors with legal tools and to apply the policy of the security office and government of Israel, but rather as a supreme authority, who alone has the power to make decisions. In his world view he continues the policy of the previous deputy legal adviser to the government, Mike Blass.
“He is totally involved in every significant decision. He is involved in every case, in every approval of city planning (taba) or blue line. Every planning activity that is connected with Judea and Samaria – even if it is trivial – goes by him, and of course, also every conflict involving land.
The combination of his skills and world view and the weakness of the administration makes him the de facto boss of Judea and Samaria”.
Isn’t it possible to appeal his decisions in the High Court?
“We have to be realistic. Considering the character of the present High court, there is no chance to nullify a security edict that a commander has issued against Israelis, even when it is clear that there are no real security reasons for the edict to be issued”.
Attorney Nir-Tzvi objects to the focus of the criticism of the legal bodies:
“At the end of the day the problem is not the officials but the weakness and helplessness of the politicians. Ya’alon and Dani Danon sit in the Ministry of Defense and cannot control their subordinates, they are totally impotent.
It is as if even the decisions of the prime minister’s office and the cabinet secretary Avichai Mandelbrit are written with disappearing ink. The politicians quake with fear and the result is that the tail is wagging the dog”.
The IDF Spokesman’s response:
The legal adviser of Judea and Samaria carries out his duties in a professional and relevant manner. All decisions are taken after receiving the positions of the bodies authorized for that, and in full coordination with the Judicial Office and the Legal Adviser to the government”.
*Barak is the Hebrew word for “lightning”, and it is also the surname of the person who is the subject of this article.
**Rashi was a great Torah sage of 11th century France. His interpretation of religious text is considered the most authoritative by many. The mention of Rashi here is a tongue-in-cheek reference which would be very familiar to the readers of Makor Rishon