It sometimes seems as if the visionary behind the Jewish state were Franz Kafka rather than Theodor Herzl. The existential nausea caused by reading the Supreme Court’s ruling on the illegal settlement outpost of Mitzpeh Kramim is marvelously similar to the nausea experienced by anyone reading Kafka’s novel “The Trial.”
When Josef K. protests his false arrest, the officers who arrested him respond, “That’s the law. Where d’you think there’d be any mistake there?” K. continues objecting: “I don’t know this law ... It probably exists only in your heads.” And that’s just the beginning of the book. K. is still far from understanding the chilling significance of the officer’s answer – “You’ll find out when it affects you.”
In the occupied territories, too, there’s no way to know the law to which Palestinians are subject, because it exists only in the heads of Israeli legislators and judges. For the same reason, if you’re an Israeli in the territories – a Jewish one, of course – there’s no real way to break the law. You are the law. If, on the other hand, you’re a Palestinian, “You’ll find out when it affects you.”
On Wednesday, the Supreme Court overturned its own ruling from 2020 and decided that Mitzpeh Kramim shouldn’t be evacuated, even though it was built on privately owned Palestinian land. Why? Because the custodian of abandoned government property who allocated the land for a new settlement near Kochav Hashahar back in 1973 believed “in good faith” that it was state-owned land. And in 1999, then-Prime Minister Ehud Barak signed an agreement on the outposts with the Yesha Council of settlements under which Mitzpeh Kramim was moved to its current location.
Incidentally, how does land in occupied territory become “government property” that can be designated for building new communities? It’s very simple. The army turned this land into a training area by issuing a “closure order” that became a “confiscation order,” and the rest is Zionist history.
So what has now become clear? That the custodian simply didn’t know it belonged to the Palestinians. He thought it was his, something he brought from home.
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Apparently, the justices also like the salami tactics. In 2020, they gave approval in principle to use of the “market overt” rule in the West Bank. Under this rule, if a custodian of abandoned property gives privately owned land to someone other than its owner, that deal can be upheld if the custodian had thought it was government property, but only if “a high threshold of subjective good faith” is proven.
In the 2020 ruling, they concluded that Mitzpeh Kramim didn’t satisfy that condition. But now they have been convinced that it does.
After so many decades, there shouldn’t be any reason to get worked up over yet another example of the same old system of legal looting, or to be horrified by the fact that “liberal” justices took part in it. One can certainly understand how a “liberal” justice like Daphne Barak-Erez could get lost in the legal labyrinth that Israelis created for Palestinians in the territories. Building this labyrinth yourself doesn’t confer the ability to get out of it.
Nevertheless, it’s hard to avoid chuckling at the deference ostensibly paid to private property rights – truly our Holy of Holies, as evidenced by the energy and amount of artillery used to surmount them. Considering all the crimes Israel commits in the territories, just take it all already. Then at least we won’t have to continue listening to the piles of lies and watching the legal system debase itself.
And it’s truly impossible not to be outraged by the corruption of language. Good faith? How did that not make your hands tremble?
One can say a lot of things about the occupied territories. It’s good to die for them, it’s permissible to kill for them, a people can’t occupy its own lands – one can have a debate about all that. But if there’s one thing Jewish Israeli hearts lack even a drop of when it comes to Palestinians in the territories and the settlement enterprise, it’s innocence.