ignoring international law
Israel legalizes settlement outposts in the Palestinian territories
Israeli settlements in the West Bank.
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Palestinian protesters against settlements in the West Bank. Archive
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When I read the headlines about the recent decision of the Israeli Supreme Court regarding settlements in the West Bank, I was very angry, both with this court and with myself.
The anger at this court was palpable.
Four judges voted four to three in favor of the settlement remaining on land privately owned by Palestinians, thus granting judicial approval to cover land theft.
As for anger at myself, I realized that I was holding out a piece of hope that the settlement enterprise, the very essence of settlement, could have been resisted by bringing evidence and reasoning to the highest court in Israel.
But I was naive.
I learned that hope, as I will say in my defence, from history, from activists and from commentators whom I respect.
In a famous case dating back to 1979, the Supreme Court ruled that the government was wrong to set up a settlement on land that the army had confiscated because it was needed for military purposes.
The settlement did not serve security purposes, as the court concluded.
Given that the military occupation was temporary in nature, the Court was unable to take the private property of the residents of the area to construct permanent settlements.
The government was not happy with this decision but canceled the settlement.
Although the court avoided ruling at the time on the overall conclusion that: the illegality of Israel's settlement of Israelis in areas under military occupation, it was a precedent, that there are limits to what Israel can do in the occupied areas militarily.
There are laws, and there is judicial oversight.
If opponents of the settlements cannot overcome them with one major judicial decision, they can still wage a judicial war of attrition.
In the early stages of the last decade, many settlements appeared, and this was due to the audacity to ignore the legitimacy by building about 100 small settlements, called outposts, which were established after the Oslo Accords.
These settlements are indifferent to international law and violate many of the laws according to which Israel has governed the West Bank, according to a detailed report issued by a government committee in 2005. Many of these outposts were built on property clearly owned by Palestinians, according to the report. .
Research conducted by the Israeli organization Peace Now showed that the old settlements approved by the government were built in part on Palestinian property.
An Israeli database leaked in 2009 provides more information on land theft.
Such evidence has fueled lawsuits before the Supreme Court.
In 2006, a case forced the government to demolish homes built on land stolen from Palestinians in the Ramon outpost near Ramallah.
In another case, she was forced to evacuate the entire outpost.
Two Israeli human rights groups asked the court to order the removal of nine homes being built on Palestinian property in an old settlement called Ofra.
She wrote that day optimistically, "If this lawsuit succeeds, the ground under Ofra and the other settlements will shake."
After years of wrangling, the court actually ordered the homes to be removed.
In these and other settlement cases, the court appears to have at least one red line: it wants to protect the private property rights of Palestinians.
Yet the ground is not shaken under the other settlements, as small victories in court do not alter the policies of the big government.
And in the latest ruling issued last week, the Supreme Court appears to have crossed its red line.
The ruling was related to a settlement outpost in the West Bank called "Mitzpe Karamim" and annulled a previous order to evacuate settlers who had built homes on Palestinian property.
This time, the majority in the court ruled that the government official who allocated the land to the settlers believed "in good faith" that it belonged to the state.
The majority said that the legitimate owners of the land should be compensated with a plot of land elsewhere, and the outpost should remain as it is, pursuant to a principle of Israeli law.
Several dissertations will be written for Ph.D.s on judicial acrobatics used to reach this conclusion.
Yet the whole process is stained with bad faith.
As one Israeli legal expert explained to me, the judges applied an Israeli law, appropriate to conflicts within state borders, that governs the relationship between occupiers and their occupiers.
Under international law, even if the land in dispute is public property, it should not be given to settlers.
But the settlement project is still being carried out on the basis of ignoring international law.
It makes sense for Israeli activists to continue the struggle in court, to help the Palestinians and to keep these issues open in the public eye.
But it would be a mistake to treat the Supreme Court without full awareness, as a group of philosopher kings and queens who will reshape national politics in an absolute pursuit of justice.
When dealing with the occupation, they are part of the occupier.
Even when it seeks to be the most objective and just court, it will be shaped through Israeli public dialogue.
People like me in Israel who see settlement and occupation as an injustice and a threat to the state should devote more efforts to bringing the issue back to the top of the state's political program.
The court we seek to persuade is the court of public opinion.
Gershom Gorenberg is an Israeli historian and journalist
In a famous case dating back to 1979, the Supreme Court ruled that the government was wrong to set up a settlement on land that the army had confiscated because it was needed for military purposes. The settlement was not serving security purposes, according to the court's conclusion.
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