On paper, it has never been easier for Palestinians whose land has been appropriated by Israeli settlements to have their day in court.
Classified government data on settlements, made public in late January, documents for the first time precisely where settlements and parts of settlements have been built in violation of Israel’s own laws. The data reveals that in more than 30 settlements, buildings — including homes, roads, schools, synagogues and police stations — have gone up on privately owned Palestinian land.
Most international authorities consider all Israeli civilian construction in the territories to be illegal under the Geneva Conventions on rules of war. Israel, while accepting the Geneva rules, has always insisted that its settlements are legal, based on its reading of the rules’ language, so long as they are built on land that is public or legally purchased.
Leftist groups welcomed the new data as an admission that Israel has broken its own rules on settlement building. Yesh Din (Hebrew for “There is a law”), an anti-settlement advocacy organization, said it was the “smoking gun” long needed to sue Israel on behalf of Palestinians whose land has been unlawfully taken. The group has placed advertisements in Palestinian newspapers, offering to take on cases for free.
But despite the offer of no-cost representation and the fact that evidence is available, many Palestinians are reluctant to take the legal route. Only five requests have been submitted so far. “Many people are very cynical and skeptical of going to the high court of Israel — the high court of the occupier,” said political scientist Ali Jarbawi of Birzeit University in Ramallah.
Data compilation began four years ago, when then-defense minister Shaul Mofaz asked his aide Baruch Spiegel to research the status of all settlements.
The report, completed two years later, contained written information backed up by aerial photos and electronic mapping, documenting the status of each tract and the official boundaries of each settlement. Upon completion, it was classified on security grounds. The Israeli daily Haaretz published the contents in January.
Palestinian reactions have been mixed. On one hand, the database confirms long-held suspicions. It “catalogs the widespread theft of Palestinian land in the West Bank, and points the finger of blame squarely at the Israeli government,” said Maen Areikat, deputy head and coordinator general of the Palestine Liberation Organization Negotiations Affairs Department.
On the other hand, most Palestinians reject the principle underlying the database, distinguishing the legal building of settlements from the illegal building. “The standard used by the Spiegel database is Israeli law rather than international law,” Areikat said. “Under international law, all Israeli settlements are illegal.”
The law in question is the Fourth Geneva Convention, a 1949 treaty that governs treatment of civilians during war and in territories occupied in war. Adopted in response to Nazi atrocities, the treaty states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies,” seemingly outlawing settlements like Israel’s. Israel, which signed the treaty in 1951, counters that the language is meant to forbid Nazi-style forced deportation or transfer, not voluntary relocation.
More important, Israeli officials argue, the treaty defines itself as applying to any “occupation of the territory of a High Contracting Party,” meaning a nation that signed the treaty. Since the West Bank and Gaza didn’t belong to a signatory nation — they had been seized by Jordan and Egypt in 1949 and held ever since — the treaty doesn’t apply there. No other country accepts Israel’s interpretation.
The Palestinian debate over using Israeli courts is most urgent on the ground, in West Bank villages where landowners are mulling what to do about the database. Mohammed Khatib, secretary of the village council in Bil’in, near Ramallah, said he is encouraging Palestinians to take the legal route, but “some people will not do it, so as to not give legitimacy to the Israeli court system. Others just have no trust it will bring a fair result.”
Khatib tried the legal tactic to fight the planned routing of the security barrier, which would have cut off villagers from much of their land. At the time, Khatib recalled, “we were confused as to whether to go down this path. We are talking about the Israeli system, which we expect to take the side of Israel rather than Palestinians, and to legitimize the crime. But we thought that we had to, as we have a right to this land.” In September 2007, Israel’s Supreme Court ordered the route redrawn.
Khatib predicts that other villages and individuals will use the judicial process. So does Yesh Din fieldworker Muhammed Anati. “There is no option for Palestinians,” he said, adding that his organization’s legal-aid advertisements are arousing some interest — even from Hamas counselors.
Still, even those who are prepared to put aside their ideological objections seem dubious about handing their case to Yesh Din and its Israeli lawyers — their only option for free representation. “People are very suspicious,” said Dror Etkes, who coordinates Yesh Din’s legal activities. “They cannot understand why an Israeli organization wants to help Palestinians. It contradicts everything they know about the world.”
Moreover, some Palestinians fear the ramifications of a court ruling, whichever way it goes.
If litigants lose, they might be seen as having rubber-stamped the expropriation of their own land, Jarbawi said. “If a judgment comes out of the court and Palestinian claims are rejected, it might give the expropriation of land the okay,” he said.
And it is widely feared that even if litigants succeed, nothing will change. Khalil Tafakji, head of the maps department of the not-for-profit Arab Studies Society, said Israeli decisions that favored Palestinians but were never implemented make people skeptical of court proceedings.
He gave the example of Migron, near Jerusalem. Two years ago, Peace Now went to court, together with five Palestinians who own land where the outpost stands. The court never even ruled, because the state admitted that the outpost was on private land. After the petitioners brought the case to court, the state promised to remove the outpost. It still has not done so.