Stating the Obvious: Ideological Criminality in Migron

JURIST Guest Columnist Shlomy Zachary of the Michael Sfard Law Offices in Israel says that the recent Israeli Supreme Court ruling ordering the demolition of the Migron outpost in the West Bank was an obvious one under Israeli and international law and was necessary to uphold the rule of law...
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A judgment was rendered recently by the Israeli Supreme Court, ordering the Israeli government to evict the Migron settler outpost in the West Bank by April 2012. The judgment was the culmination of a legal struggle extending nearly five years, after which the court decided several things in a ruling described as far-reaching and precedential. Among them was that the state must enforce the law in a territory under its effective control; that the Israel, as an occupying power in the West Bank, is obliged to protect the proprietary rights and lands owned by protected persons in an occupied territory; and above all, that the state must implement its own decisions.

These three elements of the judgment might seem somewhat baffling—after all, these are the key components of any democratic regime and society—the rule of law, the protection of human rights (certainly of those requiring more protection than others, and particularly the rights of protected persons in an occupied territory), and the implementation of lawful decisions. It should be obvious. Why, then, did the Israeli Supreme Court need five years to reach such self-evident conclusions?

The Migron outpost was unlawfully founded on private Palestinian lands in 2001. Through the years, with generous governmental support, it grew and its inhabitants multiplied. At the same time, Israel and its various authorities obligatorily stated, day and night, both in Israel and in international forums, that the outpost was illegal and therefore, by law, must be evicted. Demolition and evacuation orders have been issued for all structures in the outpost. The Palestinian landowners, noticing that the state had no intention to evict it, joined forces with Peace Now, and on October 2006 filed a petition with the Supreme Court requesting it to compel the state to implement the orders and evict the outpost. The government, in its responses to the petition, did not dispute any of the facts: the outpost was founded unlawfully on private Palestinian lands; the state itself was an indirect accomplice in the construction of some of its infrastructures; all structures in the outpost had been issued demolition orders; and all authorities relevant to the matter had made a decision to evict it.

The question, the government claimed, was the timing and manner of eviction (consensual or forced). At a certain stage during the five years of the petition, the state even proposed to delay eviction of the outpost until the construction of a new neighborhood in an adjacent settlement could be completed for the outpost settlers. Pending completion of the neighborhood's construction, the Palestinian lands were to remain in the hands of the outpost's inhabitants. The court was willing, for a time, to tie the fate of the rule of law and that of the Palestinian residents' rights with this award to the trespassers. However, even regarding this arrangement, it was shown that there was no true resolve to complete the new neighborhood and evict the outpost. Unfortunately, a "suitable time" for the eviction was never found in the ten years since the outpost's founding. As the state's arguments crumbled one after the other and after the court's patience wore out in light of its failure to act, only then was the judgment compelling the eviction given.

Despite the numerous hearings conducted in the petition and the copious documents and appendices filed during the litigation, the judgment itself is relatively short—only 13 pages, most of which is a description of the facts and the petition's history. At first glance, the legal discussion in the judgment seems limited and scanty, as compared to other judgments dealing with the sensitive issues of occupation law. The court elected not to take the path of a monumental, extensive ruling, but rather that of a limited, brief and modest judgment.

Therein lies the judgment's true strength. The issue before the court required neither heaps of supporting references, nor the development of tortuous legal arguments, nor innovative ground-breaking assertions necessitating multi-layered profound philosophical foundations. All that was required was to rule the obvious. Indeed, it is the judgment's simplicity that gives it strength. The more detailed the criteria, qualifications, the development of conditions for the enforcement of the law and the protection of civilians' proprietary rights in occupied territories, the more loopholes might be found by jurists, who habitually seek ways to evade implementation of the judgment. It is precisely a succinct judgment which allows for no misunderstanding regarding its conclusive content.

The first sentence of the ruling is the gist of the matter: "before us stands a petition requesting a remedy to implement the decision of the Respondents to evict the Migron outpost..." That is, the court is requested to give real, practical substance to the state's own previous declarations and decisions. These decisions were unavoidable in light of the factual and legal circumstances on the ground. In fact, no judicial ruling was possible other than a judgment compelling the state to realize its own decisions. Had they not been made, there was no other possibility but to compel them. In other words, the court's logical deduction provides that since the state has made the decision to issue demolition orders for the outpost's structures and to evict it, and as no other decision was possible, there remains no alternative but to give a judgment ordering the execution of said decision: the eviction of the outpost.

However, reaching this simple conclusion was far from easy for the court. One should remember that this was an administrative proceeding held before the Supreme Court. The grounds for judicial intervention by the court are naturally limited and used cautiously, predominantly in ultra vires cases or where the state's conduct was tainted with extreme unreasonableness. The court chose the cause of extreme unreasonableness as the primary component in ordering the requested remedy.

The reasonableness cause addresses the state's obligation to conduct itself reasonably, and in the particular case of the Migron outpost, its obligation to act for the enforcement and implementation of the law. This is the standard against which courts examine actions of the administrative authorities. In cases where no proper enforcement ensues following lawbreaking, certainly for an extended duration as in this case, and where the lawbreaking violates fundamental rights of persons protected according to international humanitarian law, such conduct by the authorities is extremely unreasonable, thus justifying the court's intervention. In the context of Migron, the state's unreasonable conduct, altogether shirking enforcement of the law, led to its failure to exercise its obligatory powers to protect the Palestinian residents.

The Gordian knot created by the state during the petition's life, whereby the trespassers are not to be evicted from the Palestinians' privately owned lands until a permanent housing solution is found for them, received the court's sympathetic ear, albeit for a limited time. The tying together of these two matters by the court was in fact also unreasonable, and is therefore also somewhat bewildering, as the reasonableness of the state's conduct should be examined on the basis legal acts, and not on acceptance of illegal acts. The court's (provisional) consent, though implicit, that the eviction of the outpost may be delayed until the alternative solution for its inhabitants is completed, derives from the sphere of relative reasonableness; however, this balancing by the court should not have been performed from the outset, as it grants provisional legitimacy to an illegal act. Such balance may be performed regarding acts whose illegality is marginal, the Migron outpost, as was well known since the early days of the petition, is altogether illegal according to Israeli, local and international laws, on top of the inherent illegality of founding settlements in an occupied territory.

The court sought to view the linking of these two matters for a limited time as reasonable, despite acknowledging the problematic nature of this arrangement, but at a later stage realized that acceptance of this inseparable link does, in fact, add insult to injury. The link was severed as it became clear that its factual basis was very frail, not to mention the complete absence of any legal connection between these matters.

The judgment reflects the sad reality of the law enforcement system in the occupied West Bank. The power to enforce the law is granted to the authorities by local laws, Israeli law and above all international law, and especially the international law of occupation. The authorities, however, refrain from effectively exercising their powers. The subordination of law enforcement issues to the decisions of the political echelon is a recipe for disaster and for unrestrained influence over the rule of law. Above all it is evidently unreasonable. The discrepancy between the self-evident declarations of the Israeli government and its actual conduct warranted, and still warrants, the introduction of practical substance detached from political influences and other background noise.

This bold judgment addresses only a single illegal outpost within the entangled fabric of widespread ideological criminality, which continued to intensify during the last five years. Ten similar petitions are still pending before the court, in addition to a similar number of petitions pertaining to illegal construction on public lands. It is difficult to estimate the actual influence of the judgment over these cases or over future cases, which all involve a lack of law enforcement, the violation of the rights of protected Palestinian persons, and the trampling of the rule of law. One should also take into account the Defense Ministry's unimpressive record, to say the least, in implementing Supreme Court judgments pertaining to the restitution of lands to their Palestinian owners. The next nine months shall present a significant trial for the rule of law and the steadfastness of Israeli democracy, as well as a test of the power of the Supreme Court over law enforcement agencies, as compared to the influence of political pressures.

Perhaps a drawn out struggle was unavoidable. Perhaps it was necessary to go through the whole "faux solution" procedure proposed by the state, and its foot-dragging, in order for everyone to eventually realize that the petitioners were simply the child pointing out that "the emperor wears no clothes." At the end of the day, as asserted in the judgment, the operative remedy is the issuance of an order to implement a decision made long ago. The court, like a Zen monk, chose to take the long and meandering road in order to reach the most direct and self-evident point, as expressed in the judgment. Its ruling sends us back to the starting point, only older, more sober, and with the realization that sometimes one must wait five years for someone to finally rule and vociferously declare, of all things, the obvious. Sometimes even that is no small matter.

Shlomy Zachary is an advocate at the Michael Sfard Law Offices in Tel Aviv and was one of the attorneys in the Migron litigation, alongside Michael Sfard. He deals frequently with many cases relating to the settlements in the West Bank and Gaza for Peace Now and Yesh Din, Israeli human rights groups which advocate on behalf of Palestinians. He specializes in international law and international humanitarian law.

Suggested Citation: Shlomy Zachary, Stating the Obvious: Ideological Criminality in Migron, JURIST - Sidebar, Sept. 4, 2011, http://jurist.org/sidebar/2011/09/shlomy-zachary-migron-ruling.php.




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