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In West Bank settlement, the state is legalizing lawlessness

The state told the High Court of Justice that it has no intention of enforcing demolition orders in the settlement of Ofra ‘due to its special condition.’ History tells us that if this dangerous precedent is accepted, it won’t be the last time this happens.

By Yesh Din, written by Yossi Gurvitz

If one had to choose a musical theme for this High Court of Justice hearing, it would have to be the famous whistle of “The Good, the Bad, and the Ugly.” If one had to choose a movie theme, he/she should consider settling on tumbleweed rolling in the wind with the wilderness as a background.

Two weeks ago, Yesh Din went to the High Court of Justice for a hearing on a petition it filed in 2008, and which has been waiting for a ruling ever since. The petition dealt with illegal construction in the flagship settlement of Ofra. That last sentence was somewhat redundant, given that Ofra is essentially a large illegal outpost; but Yesh Din went to deal with the fate of nine new houses, built in June 2008 and which were, at the time the petition was written, yet unoccupied.

Once, long ago, it went rather well: the petition rattled the settlers to the point that Ofra’s rabbi, Avi Gisser, ruled that construction should go on during the Sabbath so that it could be finished prior to the hearing (Hebrew). Even construction work on the Temple was halted during the Sabbath; it would appear Ofra is holier than the Temple.

Then Justice Edmond Levy – yes, of the Levy Report – issued an interim order, forbidding using or inhabiting the houses. But only days later, state representative Attorney Shai Nitzan – nowadays the state attorney – decided that tricks can be played even with High Court orders (Hebrew). Nitzan pulled one of the most contemptible legal tricks in the history of the country: he ruled that since the interim order was addressed to the respondents – that is, the minister of defense and the commanding general, Central Command  – only they (Minister Ehud Barak, General Yair Naveh, and the then chief of the Civil Administration) are prohibited from inhabiting the houses. The houses were, of course, immediately inhabited by settlers, and now we are left with the unenviable task of pulling Nitzan’s headless nail.

That was in 2008. The state’s position in 2013 is similar yet different: on the one hand it says there is no doubt that these are illegal buildings, but in the same breath it says it has no intention of implementing its own demolition orders. Why? Because, as the state attorney told the court, “political issues are involved in a large part of the construction in the West Bank,” and that there is no practical difference between the nine houses whose evacuation Yesh Din demanded in its petition and the rest of Ofra. In an earlier hearing, the state implied that since Ofra is, in essence, a large illegal outpost, it does not intend to deal with the issue until a final agreement is reached with the Palestinians. The current government, one may remember, is not interested in a final agreement but, at most, with an interim one.

In other words, as Yesh Din’s legal counsel Attorney Michael Sfard told the court, Ofra has become a lawless territory. The state says that as far as it is concerned, if an entire town is built contrary to law, it is good enough reason to avoid enforcing the law there. Don’t you worry, you won’t get the benefits: if a debt collector comes to visit, if you commit an illegal construction offense (not stealing another person’s land, just enlarging your balcony), the state will rise to its hindquarters and speak of “the majesty of the rule of law.”

The situation in which a group with political clout can bend the enforcers of the law to its will is almost as dangerous as the ease with which the enforcers admit they are spineless. It means that the central principle of the rule of law – that it is enforced equally and uniformly across the board, in a way that does not discriminate between the rich and the poor, the well-off and the disenfranchised, the Jew and the non-Jew – no longer exists. Officially, for the time being, this is only happening in Ofra. History tells us that if this dangerous precedent is accepted, it won’t be the last time this happens. After all, the state claims that political needs outweigh the constitutional right to property. Why stop there? Politically speaking, there are other rights that may inconvenience the state.

The other side of the coin, of course, is that once the rest of the population realizes there is an exalted part of the population, on whom the law is not enforced, they will begin to wonder why they, alone, have to obey it. The rule of law is based on the consent of the ruled; once the state creates classes, some of whom face enforcement of the law and some of whom do not, it undermines this consent. The scary thing is, the state does not understand this simple point; fortunately, the court can still correct it.

That is, of course, unless Nitzan decides once more to play tricks with the High Court’s decisions.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din, Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

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    1. “Nitzan … ruled that since the interim order was addressed to the respondents – that is, the minister of defense and the commanding general, Central Command – only they (Minister Ehud Barak, General Yair Naveh, and the then chief of the Civil Administration) are prohibited from inhabiting the houses.”

      I’m dumbfounded. This is not legal trickery on the part of Nitzan but profound stupidity and arrogance. No Western court would tolerate this. A denial of occupancy is not demolition. Even on the State’s own avowed terms there was no irreparable loss (as would be under demolition) in obeying the court order. The underlying motivation was denial of Court authority for petty political coalition gain, employing the occupation as a trump card.

      “The rule of law is based on the consent of the ruled; once the state creates classes, some of whom face enforcement of the law and some of whom do not, it undermines this consent.”

      Exactly right, in my view.

      Reply to Comment