Strong, choking nausea wells up in face of the "compromise proposal" Prime Minister Benjamin Netanyahu has offered the trespassers in Migron. It is hard to identify exactly what is causing this. Is it the fact that the prime minister has once again surrendered to the settlers? Is it the realization of the weakness of the Israel Defense Forces - the army that apparently can attack Iran but can't manage to impose its sovereignty over a handful of settlers? Or could it be that the nausea is a symptom of a fatal disease that has been going on for decades and has been treated only with aspirin?
It seems that this time the explanation lies elsewhere. The proposal whereby we, the taxpayers, will fund a new infrastructure for the trespassers at a site a few hundred meters away from the scene of the crime and only then, two, three or five years from now will the settlers examine the option of moving to the new site - is not a compromise proposal to the settlers. It is a negotiation with the High Court of Justice. A kind of honorable way out for the highest institution of justice in the State of Israel, which will forego its dignity and acknowledge that it is incapable of continuing to fulfill its mandate: of being the High Court of Justice not only for the State of Israel, but also for the inhabitants of the territories, both Jews and Arabs alike.
Ostensibly the compromise contains a threat to the settlers. If they reject it, the houses at Migron will be demolished by March 31, as the High Court of Justice has ordered. However, taking into account the state's behavior until now, that is an empty threat and in any case the settlers and their emissaries in the Knesset are posing a much more meaningful threat: legislation that will legitimize the criminal outpost, with the added fillip of politcal revenge on Netanyahu.
In the meantime, even if the High Court of Justice approves the compromise - if it is reached - and even if the Knesset members on the right use the weapon of legislation, the High Court of Justice has already become a victim and its authority has been eroded almost irreparably. The legal fiction accompanying "the rule of law" in the territories has been around as long as the occupation itself. The opening of the High Court of Justice to the Palestinian population cannot conceal the nakedness of the judicial reality in which two separate justice systems exist, the one for Palestinians and the other for Jews. Legal scholar Amnon Rubinstein coined the term "enclave justice" in order to describe the legal deception that enabled the application of Israeli law to the Jews in the territories and not to the entire population.
The seemingly normal terms like "expropriation for public purposes" and "seizure for security needs" have also passed the test of the High Court of Justice with hardly a blink - with the exception of the petition concerning Elon Moreh [in which the court, in 1979, ordered the dismantling of the settlement, built on privately owned Palestinian land].
The court has played the game well, the game in which it has to cloak the rule of non-law in the territories in legal garb, being careful not to set off diplomatic landmines that could explode in the government's face. In this way, the State of Israel's highest court - the institution that obligates every citizen - has transformed itself into a plaything in the settlers' hands. But with the exception of a few jurists who have a conscience, Israeli society is not overly disturbed by this. After all, for the settlers territories are a Wonderland where everything is possible. Trespassing is "legal" expropriation, an outpost is property from heaven and the legality of the settlement project is something the High Court of Justice doesn't touch. This is a matter for a diplomatic agreement and that, as everyone knows, the court is not authorized to touch even with a long stick.
And suddenly there is Migron. Suddenly there is a slap in the face and a general shakeup of the game that is so very familiar. The well-mannered High Court of Justice is flexing a muscle and is ordering a demolition. Ostensibly this is another example of "the bastards changed the rules and didn't tell me," as Richard Nixon's vice president, Spiro Agnew, complained after the Watergate affair.
However, that is far from the truth. It was not the High Court of Justice that changed the rules of the game in the matter of Migron: for years it has been condoning the government's tricks and the Defense Ministry's excuses by granting new extensions on every occasion. It is the settlers who have forgotten that in order to keep the High Court of Justice "on their side," from time to time they also have to do their part.
But now it is essential to uphold at least the honor of the Israeli High Court of Justice, which knows how to impose its will on the citizens of the State of Israel but has become an "enclave" of the setters' state. The High Court of Justice must reject the new "compromise" and declare that it will no longer touch the Migron affair. It must put an end to this charade so that at least the citizens of the State of Israel will have a fair High Court of Justice. Let Migron be and let its case be deliberated at the International Court of Justice in The Hague. That is the proper place for this criminal act.
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