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Settlement Foes Take Fight to Israel's High Court

By Howard Schneider
Washington Post Foreign Service
Friday, July 31, 2009

BURQA, West Bank -- It has been nearly a decade since the Jewish settlement of Migron appeared on the hilltop opposite this Palestinian village, beginning with a communications tower and followed by a cluster of homes and a fence around approximately 90 acres of land.

Data tucked onto the hard drive of anti-settlement activist Dror Etkes's computer indicates that the land belongs to the residents of Burqa and nearby Deir Dibwan, and Etkes said he expects that information will one day force the settlers to leave.

The compulsion won't come from Israel's politicians, world public opinion or the Obama administration, Etkes contends, but from Israel's Supreme Court, where local advocacy groups are having increased success challenging settlements with simple property claims.

Etkes, the 42-year-old coordinator of settlement issues for the Israeli human rights group Yesh Din, has helped instigate a number of lawsuits through the pioneering use of mapping software to establish where settlements have encroached on private Palestinian land. "You have to create a tsunami that will expose the dimensions" of the problem, he said.

The debate over the status of West Bank settlements has been underway for more than three decades -- with the United States and many other countries regarding them as the improper actions of an occupying power, Israel claiming they are legitimate uses of land it is responsible for administering, and the Palestinians regarding them as an effort to undermine creation of a state of their own. Israel captured the West Bank in the 1967 Arab-Israeli war, and about 290,000 Israelis now live in roughly 120 government-sanctioned settlements, as well as several dozen unauthorized ones. Those figures exclude Jewish areas in East Jerusalem.

The enclaves run from small clusters of homes, such as Migron, where some residents feel they are fulfilling a religious call to reclaim the land of Israel, to city-size developments with tens of thousands of residents drawn by cheaper prices and room for growing families.

But even as the international debate has proceeded with no clear resolution -- the dispute between President Obama and Israeli Prime Minister Binyamin Netanyahu is the latest in a long series of disagreements between their countries over the issue -- a quiet revolution has taken place among Israeli groups opposed to the settlements.

Limited in the past to political advocacy and efforts to court international opinion, they now have access to a deeply layered database on West Bank land that Etkes assembled over three years. Multiple sets of information can be compared -- official Israeli maps; Palestinian, Jordanian and British records rendered in digital form; hundreds of Global Positioning System images; and aerial photos supplemented by field observations.

The Israeli courts honor the property rights of Palestinians and are beginning to pressure the government to block construction or make plans to remove houses built on private property. Proving landownership in the West Bank is not always easy, though, with a hodgepodge of records and rules that include formal land registrations, conventions that extend property rights to those who traditionally cultivate an area and Israeli government property seizures.

Still, Etkes's data are having an effect. Prodded by litigation, the Israeli government is laying plans now to move the Migron settlers to another part of the West Bank. And building at the settlement of Ofra has been restricted because it is on private land, according to Michael Sfard, the lawyer who has filed most of the lawsuits.

"It's a different universe," Sfard said. "If we had had these tools 40 years ago, I think the landscape would be different." Yesh Din has about 20 cases pending in the courts, and Etkes said "dozens" more are yet to be filed. The change has been noted by the Netanyahu government and others, who say the groups are funded by foreign governments and other outside sources and who have promised more aggressive rebuttals.

But Yesh Din's strategy of relying on the Israeli courts raises some deeper issues, akin to the debates in the United States about the role of the judiciary in molding policy, said Gerald Steinberg of Bar-Ilan University, who tracks the funding and relationships among nongovernmental groups.

"There is already a debate that the court is run by a small group of like-minded people that are outside the political process," Steinberg said. "As a result of this, it will increase." Judges are chosen by a nine-member committee that includes three justices, members of the Israeli bar, cabinet members and members of the parliament.

That debate, Etkes said, is the type of issue he hopes his work will raise. There is little chance, he added, that litigation alone will stop the expansion of settlements. But he said he hopes it will make Israelis confront the degree to which the settlements have encroached on private property and make the government enforce the law.

"We're asking questions about what Israel wants to be when it grows up," said Etkes, a former tour guide who said that he was raised in a religious family that supported the settlements and that he spent summers picking fruit in some of the same communities he is now opposing in court. "You talk about the rule of law and say that is your ethos. The main point is: Who controls the West Bank -- the state or the settlers?"

Enforcement of the rules can be slow, with Israeli authorities saying they prefer even years-long negotiations to risking the kind of violence that flared this month when settlers set fire to Palestinian fields and pelted cars with rocks after the removal of a small outpost.

Across the valley in Migron, training-wheel bikes scattered in driveways speak to a community that is nestled and comfortable, despite the large metal security gate and the guard at the entrance.

Itai Harel was one of the first to move to Migron. He said there was no sense of taking land that belonged to anyone else, only of improving barren hills "where our prophets walked and where the Bible was written." In responding to the litigation, Migron residents contended that their homes were built on land that had been abandoned and was under Israeli state control, and that they were abiding by government policy that supported Jewish settlement in the area.

If the larger area that was fenced in around Migron included private fields -- Harel acknowledged that some wheat and barley fields had been maintained in the area -- then compensation should be discussed, he said.

According to Etkes, all of Migron is in a part of the West Bank where private land registration was completed before the 1967 war and ownership was well established. He has become a familiar figure to the settlers, trolling the West Bank in a dusty four-wheel-drive vehicle looking for signs of new roads or outposts.

"They found a genius strategy: go to the Supreme Court, where everybody thinks like them," Harel said of Etkes and groups such as Yesh Din and Peace Now.

"Why should we leave here? If we leave, it is acknowledging it is occupied land," rather than Israel, said Harel, 35, who is raising four children here.

Across the valley, Mohammed Barakat, the Palestinian village treasurer of Burqa, said the wheat and barley fields mentioned by Harel may well have been his: Those were the crops grown on his 10 acres before the fence went up around the place in 2001. The loss has meant a few thousand dollars a year out of his pocket ever since.

"It's paralyzing," Barakat said of the settlements and the road, built for their use, that encircle Burqa. "It's like living in a refugee camp."

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