Inequality is Inherent in a Dual System of Law

12 May 2022

Close to midnight last Wednesday night, on the eve of Yom Ha’atzmaut, when no one was watching, the Israeli High Court of Justice issued a ruling 22 years in the making. After decades of legal battles, the court decided to give the IDF the green light to forcibly expel some 1,300 Palestinians from their homes in the Israeli occupied West Bank. Amidst difficult headlines, it is worth taking a moment to understand who these people are, and what the court’s ruling means for them, and for Israeli democracy.

The Palestinians who are affected by this ruling live in remote villages of Masafer Yatta, an area located at the southernmost edge of the West Bank. These agricultural and shepherding communities have lived here generations. This ruling may mean the end of a multi-generational struggle of families to remain in their homes on their land, practicing their traditional lifestyle.

Make no mistake—these residents have committed no crime other than living on their own land. And it is particularly heartbreaking for me to see the court issue a decision like this one at the very same moment that Israeli Jews and Jews around the world are celebrating Israel’s independence.

In the early 1980s, the Israeli military declared these communities’ land a “Firing Zone,” an area designated for military training, and in 1999, the IDF issued eviction orders for many of these Palestinians. They forced the residents out of their homes and onto trucks, and dropped them off kilometers from their villages. Their rationale? Despite having lived there for decades, these seasonal farmers and shepherds didn’t qualify as “permanent residents” in the eyes of the IDF.

The following year, NIF’s flagship grantee, the Association for Civil Rights in Israel (ACRI), took up the residents’ case. ACRI successfully won a court order allowing Masafer Yatta residents who had been expelled the previous year to return home until a final ruling was issued.

But it hasn’t been easy. The residents of Masafer Yatta, like so many Palestinians in Area C of the West Bank (Area C amounts to over 60% of the West Bank, is controlled solely by Israel, and contains all of Israel’s settlements), functionally have no way to build, because they are denied legal permission from Israel. So they build illegally—shacks, water cisterns, pens for their livestock. All of which—sooner or later—are slapped with demolition orders by the army. These are people who are constantly harassed by extremist settlers, some of whom live less than two kilometers away. They are not wealthy, and their livelihoods are bound up with the land they live on. If the army forces these people—among them many children—to leave their homes, they will be left with nothing. They have stayed this long because Masafer Yatta is their home. They know no other.

In the decades since the firing zone was first declared, many NIF grantees have been a part of the struggle to support these residents and defend their rights. ACRI, Yesh Din, B’Tselem, and Breaking the Silence, together with many local activists have documented the violations of their rights and have demanded that they be treated fairly.

These are people who want to live in peace, not in a firing zone.

Last Wednesday’s court ruling—that the IDF could move ahead with forcibly evicting the Palestinian residents of eight of the villages in Masafer Yatta—would be the largest forced transfer of Palestinians in decades. It’s unconscionable. And it’s against international law.

Whenever the Israeli courts release a decision I find baffling, I turn to my friend Michael Sfard, the renowned Israeli human rights lawyer, for guidance. Immediately after the ruling week, he pointed out that this decision is not only a moral and economic disaster for these families, it flies in the face of over a century of international legal precedent.

Sfard points out that the prohibition on forced transfer of civilians in occupied territory dates back to the American Civil War and that it was reaffirmed as a crime against humanity at the Nuremberg Trials after WWII and in the Rome Statute of 1998. And while Israel is not party to the Rome Statute, it is a signatory to the Fourth Geneva Convention, which also prohibits forced population transfer.

He couldn’t be clearer when he said, “The world we live in is a world where slavery is forbidden, the murder of civilians is forbidden and deportation is forbidden. These are intuitive moral principles today.” The justices of Israel’s High Court ignored this fundamental principle in their decision.

Should the army carry out this order, it will be hard not to call it a violation of international law. It will be hard not to feel angry, even horrified that the state that claims to represent the Jewish people would be capable of such injustice.

We—the vast majority of American Jews, and so many Israelis and Palestinians—seek justice. We seek equality. We work for peace. But this ruling—and the dual system of law it represents, one that privileges the entrenching of the occupation and the expansion of the settlement enterprise at the expense of the Palestinians—undermines all of these values.

There are no two ways about it—this court ruling represents a loss. It’s a loss first and foremost for the Palestinian families it affects. Their lives will be forever changed by the decision that was made on the eve of Yom Ha’atzmaut 2022. But it is also for all of those who work for equality and justice. In talking to activists—ACRI lawyers, Breaking the Silence activists, and Palestinians involved—it has become clear that no one thought the court would rule so harshly. No one thought that this level of mass eviction was really on the table. But, as we were recently reminded here in our own country, it is naive to believe we can simply rely upon the courts to dispense justice. We have to organize.

ACRI isn’t taking this lying down, and neither are any of the grantees who have worked so hard and so long to allow these people to live their lives free of fear.

The march to justice and equality is a long one, a marathon, not a sprint. We at the New Israel Fund know that. And we will continue working on the ground towards a day when Israel no longer uses its military might and its justice system to perpetuate an occupation that is, in the words of the late Prime Minister Ariel Sharon (one of the original architects of Israel’s settlement enterprise), “a terrible thing for Israel and the Palestinians.”

We will continue to work for the day when Palestinians and Israelis can both feel safe in their own homes.