Palestinian protesters burn tyres during a weekly demonstration against the expropriation of Palestinian land by Israel in the village of Kfar Qaddum, near Nablus in the occupied West Bank, on July 6, 2018. Photo: AFP/ Jaafar Ashtiyeh

The Israeli Supreme Court has approved the evacuation of a small village near the settlement of Kfar Adumim. The evacuees are Bedouins from the Jahalin tribe. This unfortunate group had been the victims of uprooting by Israeli authorities before when they were thrown out of their homes in the Negev desert in the 1950s.

The current village, which is essentially a set of bedraggled structures made of tents and sand-covered corrugated-iron shacks, was set up about 40 years ago, without permits on what Israel considers “state lands.” This is the legal term Israel uses for land without clear and documented private ownership.

The government wants to move them to an area adjacent to a garbage dump, close to another Bedouin group with whom they have long had tensions.

Infamous section of the West Bank

Another key element is that the land they currently occupy will almost certainly be used to expand the nearby settlement of the infamous E1 section of the West Bank. If Israeli settlers are allowed to live in this area, it may prevent the setting up of a contiguous Palestinian state, as it could cut the West Bank from East Jerusalem.

Hours before the Bedouins’ village was set to be destroyed, the would-be evacuees received a last-minute reprieve. The High Court of Justice issued a temporary injunction on Friday, just as the Israeli Defence Force began preparations for its demolition. The reprieve was granted because the state had refused to even examine a plan for authorization of the village drafted by residents and their lawyers. The state was given five days to respond.

A picture taken on July 4 shows the Bedouin village of Khan al-Ahmar, east of Jerusalem. Israeli authorities say it was illegally built and the Supreme Court in May rejected an appeal against its demolition. Photo: AFP/ Ahmad Gharabli

On the face of it, Israel is within its rights in evacuating residents of an unapproved village. However, nothing is simply administrative in the occupied territories. Decisions are made in the context of an asymmetrical power structure. Supporters of the rights of the villagers point out that Israel has in the past accepted retrospective building plans legalizing unauthorized construction. Not surprisingly, Israel has been far readier to do that when the petitioners are Jewish settlers. Also, evacuating residents of an occupied territory is forbidden under international law unless there is an immediate security reason for that.

‘Enlightened occupation’

The case may serve as a barometer for the role of the High Court of Justice in contemporary Israel. The rule of the Israeli court in the occupied territories has traditionally been part of its unique approach to military occupation. After the 1967 War, Israel was determined to rule the Palestinian citizens of Gaza and the West Bank through a model of “enlightened occupation.” This included measures such as keeping the bridges between the occupied territory and Jordan open and the ambition (never fully realized) of having Palestinians run their own municipalities with as little Israeli military interference as possible. As part of this attitude towards occupation, the Israeli High Court claimed jurisdiction in the West Bank and Gaza to appeal against government actions there.

Over the years, the “enlightened occupation” approach eroded. By the 1980s, occupation methods were dark and brutal. However, the High Court continued to take its role of protecting Palestinians seriously. A former president of the Supreme Court, Aharon Barak, summed up the attitude of the court: “The security of the state does not constitute carte blanche for harming the rights of individuals, just as human rights cannot justify in every instance undermining security. No balance will be achieved if security or human rights enjoy absolute protection.”

It is true that more often than not, the Court has sided with the government against Palestinian appealers. However, it has been far from an automatic green-light to Israeli occupation policies. Notably, it forced the government to alter the pathway of the security wall it built in order to ensure negative effects on Palestinians would be minimized and proportional. In another famous example, the Court ruled in 1979 that the Elon Moreh settlement had been built on land requisitioned illegally and therefore the settlers had to be removed.

Maybe more important than the actual rulings of the Court, is the self-restraint it inflicted on the Israeli government and military. Both knew that if they went too far in restricting Palestinian human rights, they may be challenged in Court and this may have prevented some of the worst possible excesses of the occupation.

Make-up of top court has changed

In recent years both the Court and Israeli society have changed. Judges had previously been selected through a mostly internal process, with minimal political oversight. This led to a self-selected bias towards secular and liberal-leaning judges. The leftist tendency of the court undermined the prestige of the institution in a country increasingly leaning to the right.

Current Justice Minister Ayelet Shaked has spearheaded change in the orientation of the Supreme Court. The selection committee has nine members; Shaked is chairperson of the committee, which includes another cabinet member, two members of the Knesset (one part of the coalition and another of the opposition), two members of the Israel Bar Association and three judges. Seven members are needed to approve a new judge. Shaked has used her bloc of three loyal votes to torpedo any nominations she finds politically undesirable. This has led to her getting three out of the four conservative justices on her shortlist approved. Meanwhile, judges on the appointments panel have failed to advance any of their nominees.

To date, the influence of this change on the traditional role of the Supreme Court in protecting Palestinians is unclear. Will the new justices conform to the relatively liberal view of the Supreme Court towards Israeli occupation policy? After all, the weight of institutional socialization is significant and the precedent of relatively moderate rulings lies before them.

Or will Israeli occupation, already morally and legally problematic, lose the last measure of internally derived restraint? Whether or not the Court bothers to protect a poor and often abused group of Bedouin villagers may be an important test case. As of now, the jury is out.

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