High Court Justices Know Israel Won’t Face Sanctions Over Masafer Yatta Evictions

The decision was released on the eve of Independence Day, when the Jews celebrate the founding of the State of Israel and Palestinians grieve for the loss of their homeland

Starting this morning, at any given moment, the Civil Administration, the Israel Defense Forces, the Border Police and the regular police are allowed to send dozens – and if they need to, even more – of soldiers and police officers into eight villages in Masafer Yatta and with their guns trained on them, put on trucks and buses hundreds of their residents – the elderly, the young, women and infants. And this will be done with a seal of approval from Israel’s High Court of Justice.

From today, subcontractors working for the Civil Administration, accompanied by civil servants and soldiers, are free to destroy not just an odd small hut or animal pen, but dozens of homes, including caves that were hewn out of rock to serve as residences long before the establishment of the State of Israel. All this is made possible under a decision by Justices David Mintz, Isaac Amit and Ofer Grosskopf to reject the petitions filed by the residents of Masafer Yatta against thir permanent displacement.

The decision was released on the Supreme Court website on Memorial Day, the eve of Independence Day, when the Jews celebrate the founding of the State of Israel and Palestinians grieve for the loss of their homeland, their expulsion and being made refugees. The High Court justices couldn’t have timed any better the release of their ruling countenancing an expulsion and ending a way of life for these Palestinians – one that developed over more than 100 years and is characterized by family, economic, social and cultural interconnections and dependencies among the villages and between them and the nearest urban center. The destruction of eight of some 14 villages will destroy the historic and geographical fabric of life in the area.

In the historiographical debate about whether Israel is in its essence and character a colonial-settler entity, the justices have expressed a firm stance: Most certainly, it is. Because the essence of settler colonialism is the taking over of land by an immigrant population while expelling its indigenous (in the most extreme case by committing genocide), denying their linkage to the land and totally excluding them from the new political order that the immigrants have created. In this order, in which the indigenous population has no say or any rights, it’s natural for the new rulers to decide that a particular piece of land is needed for its army. Or maybe more settlers. Or maybe both. Masafer Yatta’s transformation into Firing Zone 918 is but another tier in a process that has been going on between the Jordan River and the Mediterranean for more than a century, and serves as an illustration of the continuity of Israeli policy.

The justices dismissed disparagingly the evidence provided by the residents – oral testimony, documents and physical evidence from the actual area – attesting to their connection to the place, past and present. And indeed, rejection of the historical and family memory of the indigenous population is an essential part of a settler-colonial political order, in which no consideration is given to its voice or past. The justices adopted with enthusiasm the position of the state, which held that the residents of Masafer Yatta had invaded the area only after the army declared it a training zone in 1980. In other words, according to the State Prosecutor’s Office and the High Court, a population of farmers and herders, who lead very simple lives, plotted in bad faith to prevent the area from being turned into a military training ground, choosing to live in a place without running water, electricity or paved access roads, without the right to build.

The justices chose to ignore the ways in which Palestinian villages and hamlets have sprung up and been created over the centuries. When the population grows and the number of sheep and goats multiplies, some of the residents of a village will move to other pastures and water sources, and gradually expand the lands they work, known and accepted to be their village’s. Caves might initially serve as homes and over time, as the population increases in those extensions, and as the needs change, more simple constructions are built – including public ones, such as schools and access roads. The original village becomes a town, or even a city.

After 1967, Israel acted determinedly to put a stop to these evolutionary processes in the West Bank. Declaring areas firing zones was one way to achieve this. Establishing settlements and the grab of more land and water resources was another. The High Court chose to feign ignorance and belittle the historical significance of a document submitted by the Association for Civil Rights in Israel: a recommendation by Ariel Sharon, when he was agriculture minister in 1981 and chairman of the ministerial settlements committee, that the army sought to expand the firing zone declared in Masafer Yatta in order to prevent “the spread of the rural Arabs of the mountain down the side of the mountain facing the desert … and to keep these area in our hands.”

The attorneys representing the villages – Shlomo Lecker and the lawyers for ACRI, Dan Yakir and Roni Pelli – relied on Article 49 of the Geneva Convention: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

The justices rejected the claims of the plaintiffs that the court must honor this clause. Justice Mintz even asserted that Section 49 applied by “agreement” and not by “custom” – in other words, that it was the result of an agreement between countries and not one that a court inside any one state must necessarily honor. Attorneys Michael Sfard and Netta Amar-Shiff (whose amicus curiae brief she filed at the behest of the Masafer Yatta community council, was rejected by the court) said on Thursday that Mintz’s arguments were unfounded; as Sfard said, “This is nothing less than an embarrassing basic legal error.”

The original petitions submitted by Lecker and ACRI attorneys in the year 2000 followed the mass eviction by the army in November 1999, including razing homes, pens, wells, and caves used as homes. These expulsions occurred when the prime minister and defense minister was Ehud Barak, a Labor Party man, and at a time when Israel and the Palestine Liberation Organization were in negotiations in what the world then called a peace process. The dissonance between a “peace process” and mass eviction didn’t bother the Israeli society.

The High Court, as usual, missed in the 2000s the opportunity to issue a principled decision against the evictions and to demand the state to act according to international law. It settled then for an interim injunction that allowed the residents to return but barred them from rebuilding the structures that were destroyed or building new housing to meet the needs of a growing population.

Meanwhile, the High Court generously allowed the state to repeatedly postpone submitting its response to the original petitions. During those years, the European Union made clear it opposed any form of forced displacement.. Concurrently, illegal settler outposts multiplied in the area, the land controlled by the settlers expanded, and so did the methods used by the Civil Administration and the settlers to deprive Palestinians of accessing their land.

Despite the fact that the mass expulsion and demolition of entire villages the High Court has now approved go against the stance of the EU and probably of some officials in the U.S. government, the High Court justices know very well that Israel isn’t in danger of being sanctioned over their decision. They also know that forced displacement of between 1,200 and 1,800 Palestinians from their homes does not diverge from any of the standards that now prevail in Israel.