The Washington PostDemocracy Dies in Darkness

Opinion Shame on me for believing courts could stop the Israeli settlement machine

An Israeli soldier stands guard during a demonstration by Palestinian and Israeli peace activists against settlement expansion in the occupied West Bank on July 27. (Jaafar Ashtiyeh/AFP via Getty Images)

When I read the headline about the Israeli Supreme Court’s latest decision on West Bank settlement, I was angry — at the court and at myself. The anger at the court was straightforward. A 4-3 majority allowed a settlement to stay on land privately owned by Palestinians, thereby giving judicial approval to theft.

As for being vexed with myself, I realized I had been holding onto a shard of hope that it was possible to fight the settlement enterprise, the core of the occupation, by bringing evidence and reasoning to the nation’s highest court. I’d been naive.

I learned this hope — I’ll say in my defense — from history, and from activists and commentators I respect. In a famous case back in 1979, the Supreme Court ruled that the government was wrong to put a settlement on land that the army had requisitioned, purportedly for military needs. The settlement didn’t serve security needs, the court concluded. And since military occupation was inherently temporary, the government couldn’t take residents’ private property for a permanent settlement. The government was unhappy but moved the settlement.

True, the court avoided ruling — then and ever since — on the overarching question: the illegality of the state settling Israeli citizens in territory under military occupation. Still, a precedent had been set: There were limits to what the state could do in occupied territory. There were laws; there was judicial oversight. If opponents of settlement couldn’t defeat it with one grand judicial decision, they could still wage a legal war of attrition.

In the early aughts, that possibility beckoned. One reason was the audacious illegality of over a hundred small settlements, known as outposts, established after the Oslo accords. Never mind international law; they violated multiple laws under which Israel itself ruled the West Bank — as a government-commissioned report detailed in 2005. Many outposts were on real estate clearly owned by Palestinians, the report showed. Research by the Israeli organization Peace Now showed that older, state-approved settlements stood partly on private Palestinian property. A secret Israeli army database, leaked in 2009, provided more details on land theft.

Such evidence nourished suits before the Supreme Court. In 2006, one case forced the government to raze houses on stolen land at the Amona outpost near Ramallah. A later suit forced evacuation of the entire outpost. Two Israeli human rights groups asked the court to order demolition of nine houses being built on Palestinian property at the older settlement of Ofra. “If this suit succeeds, the ground will shake under Ofra and other settlements,” I wrote optimistically at the time.

After years of wrangling, the court in fact ordered the state to tear down the houses. In these rulings and others concerning settlements, the court seemed to have at least one red line: It would protect Palestinians’ private property rights.

Nonetheless, the ground did not shake in other settlements. Small victories in court did not change larger government policies.

And in the latest decision, handed down last week, the Supreme Court crossed its own red line. The ruling dealt with a West Bank outpost called Mitzpe Kramim, and overturned a previous order to evacuate settlers who built homes on Palestinian property. This time, the court’s majority ruled that a government official had allocated the land to settlers believing “in good faith” that it belonged to the state. Applying a principle from Israeli law, the majority said that the legal owners should get other land as compensation — and the outpost should stay.

Doctoral dissertations will yet be written on the legal acrobatics used to reach this conclusion. In a sense, though, the entire proceeding was stained by bad faith. As an Israeli legal scholar explained to me, the judges applied private law, suitable to disputes within the boundaries of the state, to relations between the occupier and the occupied. Under international law, even if the land in question really was public property, it shouldn’t have been allocated to settlers. The settlement enterprise is built on ignoring that principle.

It makes sense for Israeli activists to continue to fight in court, both to help individual Palestinians and to keep the issues in the public eye. But it’s a mistake to half-consciously treat the Supreme Court as a group of philosopher kings and queens who will reshape national policy in pure pursuit of justice. When dealing with the occupation, they are part of the occupying state. Even when seeking to be most objective, most just, they are shaped by the Israeli public conversation.

Those of us in Israel who see settlement and occupation as both unjust and a danger to the country have to devote much more effort to putting the issue back at the top of the nation’s political agenda. The court we need to convince is the court of public opinion.