A striking aspect of the so-called building freeze in Judea and Samaria that expired last week is that an enormous amount of construction went on throughout the last 10 months. The Arabs of Judea and Samaria were not only building without restrictions, the US, Europe and the Arab states of the Persian Gulf bankrolled much of their construction.
The presumptive purpose of the freeze was to prevent Israel from creating "facts on the ground" that would prejudice the outcome of the so-called peace talks with Fatah. This goal is justified on the basis of the Palestinian misinterpretation of a clause in the 1995 agreement between Israel and the PLO in which they agreed that "neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."
The clause was never intended to refer to construction, and "neither side," of course, relates to both Israel and the Palestinians.
But since the agreement was signed, while the Palestinian misinterpretation has been widely adopted, only one side has been held to account.
Whereas every Jewish home built since 1995 has evoked a storm of international criticism, the Palestinians have built thousands upon thousands of buildings throughout the areas. They have done so in total disregard for planning and zoning ordinances and even the basic considerations of supply and demand. For instance, a motorist travelling from Jerusalem to Ma'aleh Adumim will pass hundreds of empty five-story buildings in Issawiya and other Arab neighborhoods built for the sole purpose of preventing Israel from connecting the two.
So too, Fatah-appointed Palestinian Authority Prime Minister Salam Fayyad has been absolutely clear that the Palestinians are building the new city of Rawabi to "change the status" of Judea and Samaria and prepare the ground for the establishment of a state outside the framework of the negotiations.
As the Binyamin citizens' committee has warned, the Palestinians chose to locate the new city in the heart of the predominantly Jewish area to undermine the territorial contiguity of the Jewish communities there.
The situation in Judea and Samaria at the end of the moratorium is not what the participants in the global anti-Israel pile-on would have us all believe. We do not have avaricious Jews gobbling up all available land at the expense of the guileless, disenfranchised Palestinians. And what is at stake with the end of the freeze is not the fate of the so-called peace process.
What we have is a situation in which there are two sets of rules - one for Arabs and one for Jews. Not only are Jews not given extraordinary rights, they are being denied what are supposed to be their inviolable rights to their private property. Not only are laws being enforced with great prejudice to the benefit of the Palestinians, they are being enforced with great prejudice against the Jews.
So what is at stake with the end of the freeze is not the fate of a future peace. What is at stake is the principle that Jews can expect minimal protection of their fundamental rights to their property from the Israeli government. And if Prime Minister Binyamin Netanyahu manages to withstand the new tsunami of pressure from the Obama administration to reinstate the abrogation of Jewish rights, he will not be harming peace any more than if he bows to that pressure, he will advance the cause of peace.
A "peace" based on the nullification of Jewish rights is nothing more than a recipe for more war.
If Netanyahu manages to withstand U.S. President Barack Obama's threats and harangues, all his action will do is maintain a bare minimum of protection for Jewish rights. That is, if he manages to keep his pledge to the Israeli people and not prolong the discriminatory freeze, he will have done the bare minimum to maintain Israel's commitment to the rule of law and liberal norms.
When we recognize that the demand for a moratorium on Jewish building is an issue of civil rights and the rule of law rather than an issue of peace, we recognize that the plight of the Jews in Judea and Samaria is little different from the plight of Jews throughout the country. Jews in the Negev, the Galilee and the Golan Heights face discrimination that is little different from that faced by the Jews of Judea and Samaria.
Take the plight of Yehuda Marmor, a third generation rancher in the Lower Galilee community of Yavniel with a herd of 220 cattle. For the past eight years, he and his ranch have been regularly attacked by a gang of Israeli Arab livestock thieves and squatters from the Bashir clan. The clan hails from the Arab villages around Moshav Tzipori some 40 kilometers from Yavniel.
Marmor alleges that he was shot by members of the clan while he was trying to prevent them from stealing his cattle in 2002. Six hours after he testified against them in court, 2,000 dunams of his grazing land were set ablaze. He has suffered from regular theft of his cattle every two to three months for the past eight years. Two years ago, seven kilometers of fences around his grazing land were destroyed.
Marmor has a thick stack of complaints he has filed against the Bashir clan. The police have closed investigations into all of them on the grounds of lack of public interest in the complaints or lack of evidence.
Marmor went to court to get a restraining order against the clan. The police have refused to enforce it.
A walk around Marmor's ranch shows that his land, which overlooks the Jezreel Valley along the Sea of Galilee, has clear military significance. As Jews like Marmor are increasingly leaving ranching and allowing Arab land thieves to overrun their properties due to lack of police protection or court enforcement of their rights, the need to defend those who remain expands by the day. Marmor is able to continue ranching due to the efforts of the volunteers from the New Israeli Guardsmen, a voluntary organization established three years ago by the sons of farmers and ranchers who banded together to protect their parents' livelihoods and lives in the face of police paralysis.
Or take Ilan Milles from Neveh Atib in the northern Golan Heights. For seven years, he worked to realize his dream of building a farmers' market at the entrance to the Mount Hermon National Park.
Milles received all the permits and licenses, raised the money and was all set to begin work earlier this year. But before his contractor could begin the job, the pro-yrian Druse from neighboring villages decided they wanted the project for themselves.
So they threatened the contractor.
After repeated attempts to reach an accommodation with the Druse failed, Milles asked Regavim, a nonprofit group that lobbies government bodies to protect Jewish land rights, for help.
Regavim convinced the relevant ministries to permit him to move ahead with construction. Everything was set to go in May. But then, the police intervened.
Claiming that beginning construction would endanger the lives of construction workers, the police slapped a no work order on Milles the night before he was scheduled to break ground.
Regavim petitioned the High Court to force the police to protect Milles's property rights. This month the court ruled in his favor and construction is set to begin on November 1. Whether this is the end of the story is anyone's guess.
The court's decision is a welcome departure from its general practice. In its 2004 landmark ruling in the Ka'adan case, the court ruled that the state may not discriminate against Arabs in leasing land. This put an end to the establishment of Jewish communities throughout the Jewish state.
The ruling might have been justifiable on liberal grounds if it were applied across the board. However, it does not apply to Arabs.
The state continues to issue tenders for land leases to Arabs only. While the state actively develops Arab-only communities in the Negev and Galilee, Jews are barred from building Jewish communities even on lands owned by the Jewish National Fund - a private trust which is bound by its charter to only develop its lands for Jewish settlement.
When the non-enforcement of the criminal code against Arab livestock rustlers, land squatters, illegal builders and tax evaders is brought into the equation, we have a situation nationwide where there are two sets of rules: one for Jews and one for Arabs. Jews are denied their basic property rights and protection under the law, while Arabs are not only protected, they are immune from prosecution if they fail to abide by the law of the land.
The most bizarre and glaring example of this is the situation in Shimon Hatzadik neighborhood in eastern Jerusalem, otherwise known as Sheikh Jarrah. There, every Friday self-proclaimed liberals stage violent riots with local Arabs to try to transform the area into a Jew-free zone.
The Jews who live there are not illegal squatters. They are the lawful owners of their properties who fought in the courts for years to have their ownership rights vindicated. What we see in Shimon Hatzadik every Friday are not peaceful demonstrations in favor of a discriminated against Arab minority. They are organized, violent assaults on the very notion of the rule of law. And these assaults are undertaken by a consortium of Arabs and leftist radicals who believe that Jews have no civil rights because they are Jews.
Facing these rioters is a Jerusalem municipality that is still smarting from the Obama administration's unprecedented assault last spring. That attack was precipitated by the Jerusalem planning board's decision to approve the construction of housing units in a Jewish neighborhood.
Today Mayor Nir Barkat is ignoring court orders to destroy dozens of illegal Arab buildings in eastern Jerusalem out of fear of the international outcry that would ensue.
The lesson of all of this is clear enough. As Israel faces the ire of the international hanging jury for refusing to reinstate the prohibition on Jewish building in Judea and Samaria, our citizens and our leaders need to make a decision.
Will we take the necessary steps to protect and strengthen our liberal democracy and guarantee that Israel is a place where the rule of law is defended and the principle of equality before the law is upheld? Or will we bow to international pressure and allow the Jewish state to become an illiberal democracy-in-name-only where the rights of Jews are systematically denied?
Originally published in The Jerusalem Post.