Taking Back the Rule of Law On the West Bank

The rule of law is not something that can simply be talked about, or even instituted, and then left to its own devices. In human history, there are far more examples of governments and powerful entities of all sorts circumventing, defying or simply not tolerating law than there are of such bodies committed to upholding it. The guarantor of the rule of law has always been civil society.

The myriad and labyrinthine methods Israel has employed to "legalize" or, sometimes, to simply be brazenly defiant about its settlement activities are well known in Israel, though not so much here in the United States. The best in-depth description of these processes can be found in Idith Zrtal's and Akiva Eldar's book, Lords of the Land: The War Over Israel's Settlements In the Occupied Territories, 1967-2007.

But Israel is a country that holds by the rule of law, even if, like many countries, it evades or defies law at times. Few would argue, I think, that the court system has not been the strongest part of Israeli democracy over the years. And now it comes before the court that the settlement has flouted a basic principle of law: that of rights to property. This is a right enshrined deeply in Israeli law. More than that, even with each announcement of expanding settlements, Israeli leaders always repeat the mantra that they will not displace any Palestinians with the new construction.

That has been well known to be untrue for some time, but amid the general lawlessness in the Occupied Territories it gets little notice. But in December 2006, it got front page coverage at the New York Times and a big splash around the world thanks to this report by Peace Now. And this week, one case has been brought to the court in Israel.

Two Israeli human rights groups, B'Tselem and Yesh Din, along with five Palestinians who own land which has been appropriated by the nearby settlement of Ofra, have filed a petition with the court to order that work on the nine houses being built on the land owned by the Palestinians stop, that the illegal structures be removed (in accordance with both a demolition and a cease and desist order that Israel has issued but has not been enforced), and that they not be connected to electrical and water systems.

That such a petition is even necessary when the Israeli authorities confirm that this land is owned by the five Palestinians in question testifies to the lawlessness around the settlement project. As B'Tselem's Research Director, Adv. Avi Berg says: "The state's avoidance of enforcing the order that is the subject of this petition constitutes additional evidence of collaboration between the government and the illegal activities of the settlers, and adds to the criminal enterprise entailed by the settlements, in and of itself illegal under international law."

The timing is particularly important as well. Under Prime Minister Salam FayyadSalam Fayyad, the experiments Israel has agreed to with Palestinians handling security have worked well thus far. Yet the expansion of settlements continues and, whether or not these are in areas Israel "expects to keep" under a final agreement, they undermine Fayyad's and Abbas' credibility. That can only help more radical forces.

Indeed, there is no downside for a new policy that brings the settlement project under the rule of law, other than for those who believe that settlement of the West Bank is more important than law, peace or justice.

Those who care about Israel, who care about the health of Israeli society as well as its ability to defend itself against military threats or terrorism, must support these efforts. One of the biggest dangers of sustained conflict, and one of the goals of terrorism, is to make a society abandon its higher ideals, its laws and liberties, in the name of "security." This isn't an either/or choice-it is not only possible, but crucial that Israel be supported both in its capability to defend itself and in maintaining the rule of law and the ethics of a democratic society. As I've noted previously we in the Diaspora have done a very good job supporting Israel's military but have come up sorely lacking in supporting Israeli civil society.

This is not a zero sum game. Supporting Israel's civil society strengthens Israel and makes it better able to use the defense support it gets. Allowing lawlessness to reign in the West Bank only adds to the defense burden overall, even if short-term benefits may seem to be gained. And the ethical degradation caused by an atmosphere of lawlessness should not be underestimated. Israel must be supported in legitimate self-defense, of which it has all too much need, but must also be supported in ensuring that those defense needs are not translated into a carte blanche that removes all ethical and legal barriers.

This case is a first step in that direction. As Yesh Din's legal consultant, Adv. Michael Sfard says: "Each ruling by the High Court of Justice will have repercussions for Ofra and on the expanding practice of illegal construction on Palestinian land in the West Bank. In this case, the petitioners' ownership of the land is unquestioned, and exposes the methodological land theft and the blind eye turned to it by law enforcement officials in the occupied territories." If a petition of this sort isn't something we can stand behind, then what kind of Israel is it we hope to support?