Opinion

Israel's High Court Seeks Order, Not Justice

FILE PHOTO: Israel's High Court of Justice.
Gil Yohanan

Something in the aura, glory and prestige of the Supreme Court bewitches us, despite everything we know about the institution and its judges. This is what the architects who designed its building had in mind, the sense of wonder that strikes anyone entering its doorways – here is where justice is served! Here is where fates are decided by judges who hold justice and fairness dear to their hearts.

The gap between such sensations and what transpired – yet again – within its walls last month, cannot be greater. This was clear in a ruling handed down by Justices Isaac Amit, Alex Stein and David Mintz, after Palestinian local authorities and human rights groups petitioned against an Israeli military decree that allowed structures built without a permit to be demolished within 96 hours of a court ruling, with no right of appeal.

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Minutes after attorneys starting arguing the case, Justice Amit hurried to define its boundaries: “Our role is limited …we’re only discussing demolition, not planning.” Thus, artificially severing the link between different stages of the expropriation process – demolition and planning – the judge turned all West Bank Palestinians into “construction transgressors” who choose, consciously and willfully, to violate the law and annoy the occupation authorities. Does Justice Amit really believe that there is no link between Israeli planning, which denies Palestinians any possibility of building legally, and the enormous amount of permit-less construction across the West Bank? Why, actually, does the judge "only" deal with the demolition side of it?

This disconnect is so removed from reality that it’s hard to believe that Supreme Court justices have been insisting on applying it for so many years, ignoring evidence proving the opposite, presented to them time after time. The policy adopted by Israel in the West Bank is open and declared: It set up a planning authority devoid of Palestinians, deliberately denying them almost any option of construction and development. It thereby condemns hundreds of thousands of people to overcrowding in the enclaves it deigned to grant them, with no possibility of future development to meet their needs. Thousands of people live under shameful, inhuman conditions, with non-existent links to life in the 21st century, as exists but a few kilometers from them. They are forced to live in dilapidated shacks, in tents flapping in the wind, or in caves, with no electricity or running water.

Since a house is not a luxury, residents must build without a permit. The authorities then pounce to enforce the law, issuing and sometimes executing demolition orders. Since 2006, Israel has demolished the homes of 6,000 people, half of them minors. This is done in the hope that these people will ultimately abandon their homes, supposedly voluntarily.

The legality of the recent decree should have been discussed on the backdrop of these facts. However, the judges skimmed lightly over these facts, with false modesty and high-handedness, cleaving to the technicality of building permits. Of course there were none and the petition was denied.

In contrast to Justice Amit’s claim, the judges’ role is not limited. Actually, they have chosen to restrict their authority so that they can continue upholding the deception Israel insists on maintaining, as if the West Bank has a planning authority that treats Jews and Palestinians equally. Apparently, it’s only a coincidence that over 50 years no Palestinian community has been established (other than one for Bedouin evacuated from their land for the benefit of a settlement). In contrast, almost 250 Jewish settlements were built in this period.

The judges are ignoring not only the reality on the ground, but also their own contribution to dispossessing Palestinians: At some point Justice Stein said he couldn't understand why a petition was even filed, since residents would be able to appeal particular expropriations in the future when after the Civil Administration executes the new decree. The other justices did not comment on this. This highlights the degree to which the justices have internalized the court’s role in putting on a sanctimonious face, as if the court were neutral, conducting fair and equitable processes. There has not been a single case in which a Palestinian appeal against a demolition was upheld, even when a whole community was evacuated, something which constitutes a war crime.

The Supreme Court in its role as the High Court of Justice is supposed to deliver justice. But Justice Mintz showed that it was not justice he was seeking. He and the other justices only want to maintain order, an order in which Palestinians are dispossessed repeatedly from their lands through military decrees which serve as bureaucratic and legal instruments. War crime or not, “there must be order.”

Attorney Yael Stein is B'Tselem's Research Director