How the ‘Annexation’ bill may delay land disputes with Palestinians

Could the bill ironically have the opposite effect of actually expediting these cases?

February 27, 2018 02:36
4 minute read.
Palestinians stand in front of a destoryed building.

Palestinians stand in front of a destoryed building.. (photo credit: MUSSA QAWASMA / REUTERS)

What happens when the law of unintended consequences is unleashed? The battle is over the proposed bill to minimize the High Court of Justice’s jurisdiction over cases regarding Palestinian land rights and other issues; the symbolism and background of the battle are simple.

Unquestionably, it is an effort by the Israeli Right to extend Israeli sovereignty as much as possible into the West Bank and to limit court interference – often viewed as being in favor of the Palestinians.

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But could this bill ironically have the opposite effect of actually expediting these cases?

The Jerusalem Post has learned that the effect of the law on the ground may be to at least double the amount of time it could take to remove Palestinian structures – which the Israeli Right wants to see gone – or open up disputed West Bank areas to Jewish building.

How could this bill, which Justice Minister Ayelet Shaked has said is designed to eliminate legal aspects of the Green Line, indirectly make time work in favor of the Palestinians over the bill’s own right-wing supporters? To understand this, one needs to understand how and why the bill itself was hatched.

In the West Bank, to remove Palestinian structures built without permits or to open disputed areas to Jewish building, right-wing activists until now needed to win both at the level of IDF administrative bodies as well as before the High Court.

The Right believes the High Court on balance is ideologically more likely to rule against them than the Jerusalem District Courts – a debatable but plausible assumption – so why not try to redirect “appeals” from IDF administrative bodies into district courts? This move could also provide the “insurance company benefit.”

Insurance companies make a lot of their money by the failure of their clients to exploit the full process for getting paid when an insurable event occurs.

There is simply so much time, effort, paperwork and often upfront costs required that many insured claimants just throw in the towel long before they get paid what they’re owed.

Right-wing supporters of the bill assume the same could happen to Palestinians – that many of them will quit rather than appeal IDF decisions to the district courts, let alone try two appeals to see if the High Court will intervene.

Left-wing groups are concerned that the Right is right – that the cases will not get to the High Court, the only address that has the independence, standing, power to bind and macro-vision to challenge both the state and the IDF in this area when they overstep.

BUT ALL OF THIS is based on the right-wing’s bet.

What if they’re wrong? Part of the basis of the bet is that many Palestinians to whom these issues apply do not have sufficient financing or sophistication to go the long haul through multiple rounds of appeals to get to the High Court.

But the Palestinians themselves have never been the ones who have carried the bulk of the burden of the costs and the legal efforts. This has always been done by human rights organizations with their own means of financing.

If the bet is wrong and the Palestinians, with the help of NGOs, can make it through the IDF and the district courts to get to the High Court, the effect on the ground will be to at least double the amount of time for right-wing activists to achieve their aims.

A process which already took right-wing activists two to three years could now take four to six years or more, simply because there will be more appeals, plus the lag time for transferring the case twice between the three legal levels which will have to hear it.

To eliminate this scenario, the Right would have needed to eliminate either the IDF administrative body’s involvement – which would have violated international law – or the High Court’s role, which might violate international law but would certainly have brought far greater global scrutiny.

By merely delaying the process while keeping the High Court in the picture, this bill goes only half way.

Unintended consequences often result from legislation which goes half way.

In 1999, Israel experimented with making its elections more American. The goal was to reduce the number of small sector-based political parties so that the two major parties could govern based on more national concerns.

But the experiment only went half way and, ironically, further empowered smaller political parties at the expense of the larger parties.

There is nothing about this bill that is intended to help the Palestinians regarding land issues.

But will some of its designers be scratching their heads in five years wondering why it is now taking them much longer to achieve their goals than before they passed the bill?

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