The “Good Faith” of the Usurpers –pre Rosh Hashanah reflections by Aryeh Cohen

This past week the Jerusalem District Court decided that the Mitzpeh Kramim settlement—which no one denies was built on private Palestinian land, and no one contests that that land was taken from the original Palestinian owners by extra-legal means—can remain in the hands of the current settler residents. The reason the court gave was that the deal that was made between the settlers and the World Zionist Organization, who had been given ownership over the land by the army, was executed in “good faith”—tom lev in Hebrew, pure or whole heart. “Good faith” as we shall see, is nothing more than a legal term of art rather than a phrase which describes the actual intentions of any of the parties between the initial Palestinian owners and the current Jewish settler owners.

It being the week before Rosh Hashanah, the Jewish New Year, the idea of good faith or pure heart is in the front of peoples’ minds. Maimonides in his Laws of Repentance writes: “Anyone who confesses verbally but does not commit in their heart to abandon [their previous actions], behold this is like one who ritually immerses [in a mikveh for purification purposes] and is holding vermin [which is radically impure] in their hand, and the immersion is not effective until they throw the vermin away.” This powerful illustration sets in stark relief the type of “good faith” that the court was satisfied with.

On August 8, 1967, the military commander of Judea and Samaria produced an order of closure. This order was updated a number of times, and in its final form, on February 3, 1975 the order included 1070 dunam (265 acres) of land. This land was declared an army firing area, and therefore closed to civilians by dint of military law. Despite this, a quasi-army settlement, Kochav Hashahar, was established. That is, apparently there was no concern that the soldier-settlers who lived in Kochav Hashahar might be in the line of fire, if firing had ever taken place at all after Kochav Hashahar was established. The area was then converted into a civilian settlement and the order of closure was converted into an order of seizure—it was apparently no longer needed as a firing zone.

So, to clarify what had taken place here. A month after the Six Day War, over 1000 dunam of land in the West Bank was “closed” for military purposes. Under international law, this would have been okay as long as the “closures” were temporary. This was no longer the case once a civilian settlement was established on the land and the “closure” became a seizure.

This is important to our story because Mitzpeh Kramim was moved from its original site to a site near Kochav Hashahar, becoming a “neighborhood” or extension of Kochav Hashahar, and then an independent settlement. However, according to all evidence that the court saw, and in the opinion of the judge, Mitzpeh Kramim was outside of the original seized area, and, in fact, built on land that was privately owned by Palestinian families.

The question before the judge was whether the land (which, in order to make it into a civilian settlement, had been turned over to the World Zionist Organization) was acquired by the settlers in Mitzpeh Kramim “in good faith.” That is, did they think that at the moment they bought the land, the World Zionist Organization (WZO) actually owned it, even though the WZO could not have owned it since it was private Palestinian land outside the seized territory. The judge ruled that the purchase had been in “good faith” and therefore should hold. This however is a very limited and technical understanding of “good faith.”

It was known to all that the original temporary seizure of the land was done under cover of military needs, even though the “military needs” was a ruse, something which became blatantly obvious once a permanent civilian settlement was founded on the land. So even if the current settlers of Mitzpeh Kramim thought that this land was seized, and therefore “owned” by the WZO, they knew that it had been seized under false pretenses, in other words, stolen. This is before even mentioning the fact that founding permanent civilian settlements in occupied territory contravenes The Fourth Geneva Convention.

What would happen if the tables were turned? For example, how would rabbinic law, react to a situation in which property was illegally and violently seized from Jews by occupiers and sold off to others? Interestingly enough we know the answer to this. The third century CE Mishnah Gittin records a national memory of armed militias (sikrikon, perhaps from the Greek sikaryon or assassin) from the time of the first century Roman war against the Jews, seizing lands by force, or under pain of death. If a person bought a field from one of the armed occupiers, even if he subsequently bought it from the original owner, the Mishnah rules that the sale is not valid. (see also Bavli Baba Bathra 57b)

The sikrikon becomes a technical term in rabbinic law for a “usurping occupant” in Herbert Danby’s felicitous translation of the Mishnah. Maimonides summarizes the concern and the law in this manner: “[In case where] one is determined to be a thief in regards to a specific field. If the thief then brings proof that the original owner admitted before witnesses to having sold the field to the thief, and having taken money for the field; and if then the original owner says that he had not sold the field, and only having sold it out of fear of the thief; we remove the field from the thief [and return it to the owner] and the thief gets nothing.” (Laws of Plaintiff and Defendant 14:2).

It is the tom lev, the good faith of those buying from the sikrikon, that the settlers of Mitzpeh Kramim are claiming. It is also rather ironic that, in this analogy, the State of Israel plays the role of the sikrikon. In this time before Rosh Hashanah should we not be thinking of ways of being less like those who are remembered to have violently destroyed the Second Temple and sent our people into Exile?

Rabbi Aryeh Cohen, Ph.D. is Professor of Rabbinic Literature at the American Jewish University and a member of Tikkun magazine’s Editorial Board. His latest book is Justice in the City: An Argument from the Sources of Rabbinic Judaism (Academic Studies Press).