Will right-wing court reform on Palestinian land cases backfire?

Right and Left - they may all be wrong.

By
July 15, 2018 22:17
3 minute read.
Protesters run away from tear gas

Protesters run away from tear gas fired by Israeli troops during clashes following a demonstration against Israeli settlements near Ramallah. (photo credit: REUTERS)

 
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Justice Minister Ayelet Shaked and others on the Right heralded their court “reform” bill on Sunday as rebalancing judicial issues involving Palestinians to be more in favor of settlers.

Many on the Left argued the same, though they criticized the legislation instead of praising it.

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They may all be wrong.

At its root, the idea of the bill is to move cases about disputed land between the Palestinians and settlers from the High Court of Justice into the district court. Cases regarding disputed entries into Israeli territory and regarding some other limits on movement will also be moved to the district courts.

Underlying this move is the belief on the Right that district courts will give more of an ear to the settlers, whereas the High Court is more often a bastion of liberalism that listens more to the Palestinian side.

So if more cases are moved to the district courts, the settlers believe they will win more.

They also believe that even though the Palestinians technically have the right to appeal to the High Court, few of them will do so.

Are they right?

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

How could this bill, which Shaked said is targeted at eliminating aspects of the Green Line on the legal plain, indirectly making time favor the Palestinians over the bill’s own right-wing supporters?

Part of the basis of the right-wing’s bet is that many Palestinians who these issues apply to are not sufficiently wealthy or sophisticated enough to go through multiple judicial rounds to get to the High Court.

But the Palestinians themselves have never carried most of the costs and the legal efforts.

Human rights organizations with their own means of financing have usually led the judicial battles.

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 bill will effectively double or more the amount of time for right-wing activists to achieve their aims.


On June 13, the Defense Ministry and the IDF explicitly warned that they expected that they would need to hire more lawyers to deal with this area based on the implication that the Palestinians would be able to make it through all the stages of litigation, including to the High Court.

Pressed about whether the defense establishment opposed the bill on these grounds, sources made it clear that they did not oppose the bill. But among experts it is far from clear that the bill will achieve its initiators’ desired ends.

That could mean that a process that already took right-wing activists two to three years to achieve their aims could now take four to six years or more.

Why? Simply because there will be more appeals and leaving extended lag time for transferring the case twice between the three legal levels that will hear cases.

To eliminate this scenario, the Right would have needed to eliminate either the IDF administrative body, which would have violated international law, or the High Court’s role, which would have at minimum brought far greater global scrutiny.

By merely delaying, but keeping the High Court in the picture, this bill went only half way.

Sometimes half way leads to unintended consequences.

There is also some uncertainty about which petitions against the IDF and Defense Ministry orders pertaining to the West Bank still go to the High Court and which go to district courts.

In addition, Shaked has appointed several conservative justices to the High Court and the Right may not want to avoid today’s High Court since it may be less liberal than it was in recent years.

Nothing about this bill is intended to help the Palestinians regarding land issues. Further, some of the same experts who say that the Palestinians will still get to the High Court, also suggest that the bill will succeed in reducing the High Court’s caseload.

And there is no question that with right-wing statements about the bill being passed to help settlers, that global observers will view it as another move toward “creeping” annexation.

But ultimately, the proof is in the pudding and some of its designers may end up scratching their heads in five years wondering, “Why is it now taking us much longer to achieve our goals than before?”

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