A watershed for the rule of law

Israeli democracy will once again be sacrificed on the altar of Migron.

By TALIA SASSON
Children playing in Migron 390 (photo credit: Tovah Lazaroff)
Children playing in Migron 390
(photo credit: Tovah Lazaroff)
The High Court of Justice ruling that the illegal West Bank settler outpost of Migron must be evacuated by March 31 left the Netanyahu government in a quandary.
Would it abide by its professed support for the rule of law and uphold the High Court’s decision or would the specter of violent confrontation with the settlers and the threat that poses to the coalition lead it to back down in yet another defeat for Israeli democracy and another victory for the settlers over the state? The government, well aware of the historic moment, tried desperately to square the circle: by reaching an agreement with the settlers that provides the appearance of evacuation in order to get the High Court’s endorsement, but actually exempting the settlers from any further evacuation while a new Migron settlement is built nearby, which could take years. As a fallback option if the High Court blocks the government’s deal, Knesset Members on the far right are working on legislation that would legally authorize the theft of private Palestinian land, if the Palestinian owners fail to submit an eviction demand within four years.
On the face of it, neither of these devious and immoral compromises should be allowed to pass. Migron was established in 2001, in a major breach of the law: There was no government decision to set it up; it was built on privately-owned Palestinian land, constituting blatant land theft; and the government itself specifically ruled against establishing settlements on private land in 1979. Moreover, Migron has no planning mandate or municipal borders. It was established in the dead of night on no one’s authority.
This raises a number of basic legal questions: How can lawbreakers earn the right to a new settlement? How can anyone tolerate an agreement that allows the settlers to remain on other people’s land for several years, with mounting losses to the original owners, until a new Migron is built? And who can guarantee that when the time comes, the old Migron will be evacuated? Not to speak of the serial violation of commitments by successive governments to the Americans not to build new settlements in the occupied territories. And, finally, for how long can the High Court permit settlement on other people’s land without any target date for evacuation? For all these reasons, High Court endorsement of the government’s compromise proposal is highly unlikely. Then, the right-wing radicals will likely submit their legislation to legalize private land-grabbing, even if the land in question was taken by force, a proposal that crudely tramples basic property rights simply because the owners are Palestinian.
Moreover, as a matter of general principle, how can the Knesset make laws for territory not under its sovereignty or jurisdiction? The proposed legislation annuls the rights of people who are not represented in the Knesset. It also flies in the face of Prime Minister Benjamin Netanyahu’s declared commitment to a two-state solution and those articles of international law that allow an occupying power to seize territory under its control for security reasons only.
If the government’s proposed compromise and the right-wing legislation both fail, then, ostensibly, the government will be compelled to evacuate Migron, probably by force. But that would almost certainly pose a serious threat to the government’s survival.
And because for this government survival is the only game in town, it is unlikely that we will reach that point.
So, despite everything, the chances are that in the end nothing will happen: Migron will stay where it is, the High Court ruling will remain a dead letter and Israeli democracy will once again be sacrificed on the altar of West Bank settlement. •

Lawyer Talia Sasson, author of the 2005 ‘Sasson Report’ on the legal status of West Bank settlements, was a Knesset candidate on the Meretz list in 2009.


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