Structurally Flawed

Before July 1, five apartment buildings in a West Bank settlement will be cut from their foundations and dragged over the hilly terrain to a new location elsewhere in the community. That's Israeli Prime Minister Benjamin Netanyahu's plan, anyway.

From an engineering perspective, the idea is "delusional," as one expert put it. That's an understated evaluation. If the three-story buildings are moved and survive, it's reasonable to assume that they'll be riddled with visible and unseen fissures—just like Netanyahu's Likud party, his ruling coalition, and the jerrybuilt legal underpinnings of Israeli settlement in occupied territory. The interesting question is which of these flawed structures will collapse first.

The idea of moving the buildings, home to 30 families, is part of Netanyahu's response to the worst political crisis he has faced in his current term. A month ago, the country's Supreme Court issued an absolutely final, don't-bother-us-again, we're-fed-up-with-you order to demolish the apartment houses by July 1, for the simple reason that they stand without permission or purchase on land belonging to local Palestinians—not to the developer who built them or to the current residents.

Settlers and their loyalists in parliament utterly oppose eviction of the families and demolition of the houses at what's known as Givat Ha'ulpanah, or High School Hill. They're scared of the precedent. Right-wing activists speak of 9,000 homes in settlements that could be demolished for the same reason. That's probably an exaggeration, the equivalent of a too-big-to-fail argument. But it's not a wild exaggeration. Rather, it's an indication of how the settlement enterprise has run roughshod over principles as basic as "don't steal." For Netanyahu, ignoring the Supreme Court would mean throwing the country's unwritten constitution in the trashcan. But that's just the start of his legal problems.

Right-wing backbenchers proposed a fix: Legislation that would give West Bank landowners only four years to file suit against theft of their property. After that, they'd be able to get compensation, but the buildings would stay put. At first glance, the blandly named Arrangement Bill would have exercised eminent domain wherever settlers had squatted on Palestinian property.

On second glance, the West Bank is officially administered under laws of military occupation. For the Knesset to pass a law about land there would be tantamount to annexation—not a smart move internationally. Beside that, eminent domain doesn't apply in occupied territory. The 1907 Hague Convention on the laws of war states unequivocally that "private property cannot be confiscated" by an occupying power.

Another key piece of international law, the Fourth Geneva Convention of 1949 bars an occupying power from "transfer[ring] parts of its own civilian population into the territory it occupies." While most legal scholars believe that applies to Israeli settlements in occupied territory, the Israeli Supreme Court has never ruled on the matter. But the court has applied the Hague Convention to the West Bank. More important, Israeli courts may no longer be the last word. As cabinet minister Dan Meridor said at a small gathering I attended recently in Jerusalem, "International law is now law with teeth." Meridor mentioned the current trial of Bosnian Serb leader Ratko Mladic before the International Criminal Tribunal for the former Yugoslavia. While stressing that he was "not comparing" Mladic's alleged offenses with anything Israel has done, he was alluding to the possibility that Israeli officials could face prosecution outside the country.

Meridor is a respected attorney and the last moderate remaining in the Likud, making him a man whose own, internal fissures are glaringly obvious. He has certainly voiced his concerns about international law in ministerial meetings, and he's right to. True, Israel has not accepted the jurisdiction of the International Criminal Court (ICC). But if the UN General Assembly accepts Palestine as an observer state this year, there's a chance that the ICC would recognize a Palestinian request for jurisdiction in the West Bank and Gaza. And the Rome Statute, the court's legal foundation, includes a fairly explicit ban on settlement.

Besides that, other countries could use the principle of universal jurisdiction to prosecute "grave breaches" of the Geneva Convention, which include " extensive … appropriation of property." Universal jurisdiction—prosecution by one country of crimes committed elsewhere by citizens of another country—only applies if the second country does nothing to enforce the law. Put differently, the effort by Israeli courts to prevent the most egregious land thefts is the shield—or the façade—keeping another country from getting involved. Passing the Arrangement Bill might have shattered that façade. Even if it's entirely unclear who could be personally charged with "grave breaches," approval of the law would not have made life comfortable for Israeli officials.

On Wednesday, Netanyahu successfully blocked the bill in the Knesset. To do so, he threatened to fire any cabinet ministers who voted for it. He also promised to move the houses, and to build hundreds more in Beit El and other settlements, and to employ as-yet unexplained legal arguments to insure that the Givat Ha'ulpanah ruling "does not constitute a precedent."

But the crisis hasn't gone away. Most immediately, the attempt to move or raze the houses on High School Hill is likely to spark mass protests by settlers. The Likud and the coalition are seething; backbenchers who voted for the Arrangement Bill and ministers who knuckled under are eager for a new faceoff. Zigzagging between domestic and international pressure, Netanyahu can satisfy neither.

And despite his bravado, the court battles over settlements aren't over. Nor has the possibility of international legal intervention vanished. Even if Netanyahu manages to move the houses at Beit El, the façade of legality for the settlement effort is built on sand. Netanyahu cannot repair the cracks; he can only try to delay the collapse.

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