Opinion |

Israel's High Court Is Willfully Blind to Theft of Palestinian Land

Yael Stein
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Justice Esther Hayut is seen wearing a mask in Israel's High Court, April 5, 2020.
Justice Esther Hayut is seen wearing a mask in Israel's High Court, April 5, 2020.Credit: Oren Ben Hakun
Yael Stein

In striking down the regularization law, the High Court of Justice could have focused on the narrow issue at hand: the retroactive legalization of homes built on privately owned Palestinian land in settlements, or on unregistered land and without construction permits.

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But the president of the Supreme Court, Justice Esther Hayut, chose to take a broader view. Already in the preface to the ruling, she describes how Israel suspended land registration in the West Bank, declared some 1 million dunams (more than 247,000 acres) as “state land” and allocated them nearly in their entirety to the settlements.

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A few additional details: That declaration was based on a skewed interpretation of the law and carried out in violation of the basic tenets of due process. Moreover, even if this were in fact public land, it was meant for the Palestinians, not the settlers, who were not supposed to be there: The entire settlement enterprise is prohibited and constitutes a war crime – a point that Hayut ignored. This prohibition was legislated because the drafters of international law sought, among other considerations, to prevent what has been taking place for decades in the West Bank: the theft of hundreds of thousands of dunams and the subordination of the lives of the Palestinians to the needs of the settlers.

On the basis of the facts that Hayut chose to mention, it transpires that the theft of land, the establishment of 250 settlements and their expansion over the years, and the population of these communities with hundreds of thousands of Israeli citizens who enjoy rights that are stripped from their neighbors, briefly appear to be reasonable.

Hardline Jewish settlers, supporters of the Amona outpost, northeast of Ramallah, are removed by Israeli security forces on February 1, 2017.Credit: AFP

Even the building of homes for settlers on private Palestinian land, under the auspices and with the encouragement of the state, is described as part of the process of creating the settlements. Perhaps that’s why it provokes no discomfort when the problem as described in the verdict is only the sweeping and callous manner with which the law seeks to make this legal.

Perhaps this is not surprising, since the ruling that struck down the Law for the Regularization of Settlement in Judea and Samaria does not stand alone. The High Court has a founding share in the settlement enterprise and in creating the situation. There have been a small number of cases in which the justices blocked settlement construction on land that was proved to be privately owned, but the theft of hundreds of thousands of dunams was approved on the basis of a variety of arguments – “state lands,” “nature reserves,” “military training zones” or other “military needs.” It’s hard to imagine the creation of the current situation in the West Bank without the appearance of legality granted by the court.

The justices sanctioned not only the land theft, but also separate planning systems: one for the settlers, which permits the settlements to thrive and to expand again and again on West Bank land, and another for the Palestinians, whose purpose is the exact opposite – to prevent them from building anywhere it’s possible to do so. Hayut did express shock at the very idea of separate planning systems, but the court has heard hundreds of petitions submitted by Palestinians against the demolition of homes that were built, in the absence of any alternative, without a permit, as well as petitions of principles against Israeli planning policy.

The justices denied them, ignoring time after time the big picture and relying on bureaucratic and procedural grounds to justify the razing, and finding the petitioners at fault for “taking the law into their hands” or “violating the clean-hands doctrine” – and instructed them to apply to the institutions that were established for the purpose of carrying out this policy.

All of this was absent from the verdict, which paints a picture of an imaginary world in which everyone enjoys equal rights and the protection of the government. In such a world, Hayat is right to say that if a law disproportionately violates the rights of a particular group, such as (in this case) the right to property and the right to equality, it must be struck down. But in the real world, the occupation has gone on for more than 50 years and every day it violates the Palestinians’ human rights.

The justices routinely approve and give their support to these violations, including home demolition, detention without trial, interrogation under torture, the shooting of unarmed protesters, the displacement and expulsion of communities, etc., etc., and all while ignoring the fact that the petitioners live under a military occupation and are not consulted about even the most basic decisions concerning their lives. With this the justices not only give sanction to the violations but also grant the occupation, the dispossession and the oppression the stamp of legality that Israel craves so desperately.

Occasionally the justices raise a red flag and tell the state, “Thus far and no further,” as they did with the regularization law. But these few instances only help bolster the appearance of legality, the exception that proves the rule. After all, the vast majority of the stolen land will not be restored to its owners, and in this ruling the president of the court adopted the variety of alternatives proposed by the attorney general to achieve the law’s intended purpose. You won’t find here justice for the Palestinians or the protection of their rights; you will find validation for continued complicity.

Yael Stein is the director of research at B’Tselem.

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