A New Legal Challenge to Israeli Settlements

The photo, taken from the air, shows the red roofs of the houses of Ofrah, one of the best-known Israeli settlements in the West Bank. Between the existing houses one can make out the shells of nine new homes under construction. Computer-overlaid thin green lines show the division of the land on which the settlement sits -- parcels owned by Palestinian residents of the nearby village of Ein Yabrud. The photo is Exhibit A in a lawsuit filed earlier this month by five residents of Ein Yabrud, with the backing of two Israeli human-rights groups. The residents are asking Israel's Supreme Court for an order to demolish the homes being built on their land.

The aerial shot is from February. A new picture of the homes, taken from the ground, appeared this week in the right-wing Israeli newspaper Makor Rishon. Red tiles are piled on the as-yet unfinished roofs of the spacious two-story houses. The photo does not show the bloodied face of the photographer, who was punched in the nose by a bystander. Her newspaper's pro-settlement editorial line did not protect her. The settlers of Ofrah are grimly unhappy about the Supreme Court case. Through the simple expedient of demanding that the Israeli government enforce the law in occupied territory, the suit threatens not only the nine houses, but all of Ofrah and perhaps the entire settlement project in the West Bank.

The suit is the product of dogged research by Dror Etkes, who for years monitored settlement growth for the Israeli left-wing Peace Now movement. Etkes now heads the Land Advocacy Project of Yesh Din, a group working against violation of Palestinians' rights by settlers. (The veteran B'Tselem rights organization joined in the suit.) Etkes' motivation could be called progressive patriotism: He wants Israel to live up to its own ideals. Through legal action, he seeks to highlight the unbearable dissonance between the rule of law and the settlement effort -- and to force Israel to make a choice between the two.

Ofrah is a fitting arena for this fight. Over 2,700 Israelis now live in the suburban-looking community north of Ramallah. Though not the first settlement in occupied territory, it was the first established by Gush Emunim, the religious nationalist movement that spearheaded West Bank settlement beginning in the mid-1970s. At its start, Gush Emunim sought to prevent any withdrawal from occupied territory by settling along the West Bank's mountain ridge north of Jerusalem, an area with a dense Palestinian population. Yitzhak Rabin, then in his first term as prime minister, barred Israeli settlement in the region, hoping to relinquish it for peace.

In April 1975, a couple dozen Gush Emunim activists moved into an abandoned Jordanian army base near Ein Yabrud. Rather than evict them, Defense Minister Shimon Peres let them stay under the pretext that they had set up a temporary "work camp." Peres was then Rabin's bitter rival and the most hawkish figure in the ruling Labor party. (Today he is Israel's president, a ceremonial post.) In the months afterward, Peres's ministry helped develop the unofficial settlement. In 1976, according to a document I found in the Ofrah archive, settlers began to discuss building houses, acknowledging that they had "no contact with the owner of the land," which they mistakenly thought was the government. According to Yesh Din lawyer Michael Sfard, even the former Jordanian base was on private Palestinian land, apparently seized for military purposes only. There was no legal basis for civilians to settle there -- even under local property law, leaving aside the question of international law. (On the question of international law, read here.)

After the right-wing Likud took power in 1977, it granted Ofrah the status of a recognized settlement. The government gave financial incentives to Israelis to move there, and still does. The settlement spread beyond the abandoned army base -- into land listed in the local registry as belonging to Palestinians.

Ofrah is a metaphor for the settlement enterprise as a whole: Pushed ahead by a partnership of radical nationalists who wanted to keep the West Bank permanently, and sympathetic officials, it is half rogue operation, half national project. "The State of Israel," says Etkes, "has sacrificed the rule of law for the sake of a political agenda." If a modern democracy is a structure of equitable law, then arguably the state sacrificed itself. The fact that other democracies have sometimes jettisoned the rule of law for "national interests" is little comfort.

The prelude to the current legal battle took place at Amonah, an "outpost" consisting of mobile homes put up illegally in the late 1990s on a mountaintop overlooking Ofrah. In 2005, Peace Now asked the Supreme Court to order the demolition of the nine permanent houses being built on privately owned Palestinian land at the site. The suit succeeded. In February 2006 police battled thousands of young pro-settlement protesters to raze the houses. Like the evacuation of Gaza the year before, the Amonah affair signified to settlers that they'd lost the support of the Israeli mainstream.

In the meantime Etkes waged a freedom-of-information struggle against the Israeli Civil Administration, which governs occupied territory. Eventually the Supreme Court ordered the Civil Administration to give Etkes its full data base of land ownership in the West Bank. A Peace Now evaluation showed that nearly a third of all land used by settlements is privately owned, most of it by Palestinians. At Ofrah, that amount is 85 percent. Next, Peace Now succeed in getting the Civil Administration's list of orders to demolish illegal structures in settlements. Stunningly, the list included over 3,400 orders -- but less than a tenth were ever carried out. Among the settlements, Ofrah held the record, with almost 200 demolition orders. On one hand, Israeli inspectors dutifully note that settlement building violates the law. On the other, the state does virtually nothing to enforce the law in settlements. The government, says Etkes, has a "split personality."

Over the years, Etkes says, Palestinian landowners have complained to the Israeli police about construction at Ofrah, to no avail. In April, Etkes began working with Yesh Din and spotted the new houses going up. The organization immediately began working on the suit -- making use of the unique Israeli legal system that allows individuals to petition the Supreme Court directly against the executive branch.

At Ofrah, the first response was to speed construction. This week the settlement secretariat said people were already living in the nine homes -- supposedly rendering moot the petitioners' request for an order against moving in. In a long brief, the settlement claimed that the land had been bought from Palestinians, though the transfer of title was never officially registered. Yehudah Etzion, who organized the original group that settled at Ofrah and still lives there, told me that "the funny thing is that there's nothing new" about Ofrah's legal status except that Israeli lawyers decided to take action. Etzion (who served time for anti-Arab terror attacks in the 1980s) said that the settlers had built on "barren land," not fields. If it was registered under someone's name, he said, that was merely its "official status." Etkes says that old aerial photos show the land was farmed. But that's not the point. The point is precisely that the legal status of Palestinian property never interested anyone.

Today, in a preliminary hearing before a single justice, the government confirmed that the houses were illegal, and agreed to a temporary injunction banning further construction or dwelling in the buildings. But the government also said that Defense Minister Ehud Barak -- the top official responsible for governing occupied territory -- had not yet decided when to demolish the homes, and asked the court not to intervene. Based on past experience, that is a decision that Barak could put off forever. The critical question is whether Israel's highest court will let him, or if it will step in and demand that the law be enforced.

The current legal challenge, clearly, is aimed at new homes to avoid the legal difficulties of evicting long-time residents. Yet everyone involved knows that if this suit succeeds, the ground will shake under Ofrah and other settlements. In asking that the Supreme Court rule on the rights of Palestinian landowners, Etkes and his fellow activists are also demanding that it resolve the "split personality" of Israeli policy in the West Bank. Ofrah might only be Exhibit A.

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