The Unmaking of Israel (10 page)

That approach collided with another legal policy: early in the occupation, a few Arab residents of the occupied territories began petitioning the High Court of Justice against IDF actions. Attorney General Meir Shamgar—later chief justice of the Supreme Court—decided not to challenge the court’s jurisdiction. One face of this policy is strikingly liberal: the democratic institution that guards civil rights in Israel extended its protection to noncitizens outside Israel’s borders. In a 2010 interview, Shamgar told me he saw “a need for judicial supervision of military bodies.” The policy’s other face is that it hinted at judicial annexation and legitimized Israeli rule. As prominent Israeli legal scholar David Kretzmer wrote, “In almost all of its judgments relating to the occupied territories . . . the court has decided in favor of the authorities, often on the basis of dubious legal arguments.” Yet the exceptions, in which the court ruled against the army and government, forced the state to shape its actions to stand up in court.

The best known of those exceptions dealt with land. In 1979, under pressure from Gush Emunim, Menachem Begin’s government instructed the IDF to seize 175 acres of private Palestinian land near Nablus for the settlement of Elon Moreh. Some of the landowners turned to the High Court of Justice. The court had upheld land requisitions before. This time, though, the Palestinian petitioners submitted an affidavit from former IDF chief of staff Haim Bar-Lev, who wrote, “Elon Moreh . . . does not contribute to Israel’s security.” The settlers filed their own brief, stating that Prime Minister Begin had assured them the settlement was permanent. The justices dismissed the state’s claim that the settlement served temporary military needs, overturned the requisition order, and returned the land to its owners. Finally, it seemed, the rule of law had prevailed.

The victory proved ephemeral. Elon Moreh was reestablished on state land nearby. The pace of settlement only accelerated. The government rarely risked requisitioning private land again. The new technique for acquiring land was to exploit local laws to establish that the property belonged to the state in the first place. The essential enabler was attorney Plia Albeck of the State Attorney’s Office.

West Bank land law dated from 1858, when the Ottoman Empire tried to legislate a clear system of ownership. In the prime real estate around villages, anyone who had farmed land for ten years could assert possession and receive a deed. To maintain the tax base, the Ottomans wanted to make sure the land stayed cultivated—so if a farmer let fields lie fallow for three consecutive years, he could lose his rights to them. The deeds were terribly imprecise. Many people did not bother registering their land; their claim rested on cultivation and traditional ownership alone. Britain, and afterward Jordan, tried to clean up the mess by surveying land, resolving disputes, and registering permanent ownership. But by 1967 less than a third of the West Bank had been surveyed. Israel stopped the process, claiming it would be unfair to adjudicate disputes when many claimants had left the country as refugees—as it happened, refugees whom Israel barred from coming back. That left the rest of the West Bank’s land without accurate registration of ownership.

After the Elon Moreh setback, Albeck oversaw a two-pronged legal offensive by a branch of the military government, the Custodian for Governmental and Abandoned Property. Officials reviewed ownership records, and used aerial photos of the West Bank to map what land was being farmed. Albeck took advantage of the fact that many Palestinian families had lost their Ottoman deeds, and she interpreted the land laws in a much harsher manner than had the British or Jordanians. Any property that was not clearly registered and did not meet the rules for cultivation—as Albeck read them—could be declared state land. Before the state proclaimed its ownership of a particular area, Albeck sometimes checked it herself on foot. Between 1979 and 1992, the Custodian designated 350 square miles—nearly one-sixth of the West Bank—as state land. The municipal boundaries of settlements were expanded to include most of that land.

If a Palestinian wanted to dispute the state’s claim and assert ownership, he had to come before a military appeals committee—and the burden of proof was on him, not the state. Few appeals succeeded. Albeck explained that Israel was simply fulfilling its obligation under international law to safeguard government property. In cases of doubt, she wrote, an occupying power was obligated to protect and manage land that might belong to the state, unless and until private ownership was proven. She did not see international law as an impediment to turning state-owned land over to the Housing Ministry or to the Settlement Division of the World Zionist Organization for Jewish settlement. If she had opposed settlement, she later said, she could not have done her job. “In all my days, I’ve never seen anything holy about the Green Line. I haven’t found it in the Bible,” she told an interviewer in 2004, shortly before her death.

A secret correspondence revealed after Albeck’s death sheds light on her approach to the law. In September 1990, Albeck received a letter from Moshe Glick, a lawyer representing the Fund for Redemption of the Land, a company set up by settlers to buy land from Palestinians. Glick said that the company had bought land near the Palestinian village of Bilin. However, it had not registered the purchase, as legally required for transfer of ownership. Doing so would reveal the names of the Palestinian sellers, endangering their lives. Another Palestinian who’d sold land to Jews had recently been murdered. Glick therefore suggested that Albeck arrange to have the land declared state property, and the Custodian for Governmental Property would allocate it to the Fund for Redemption of the Land. Albeck proceeded to do so. Dozens of Palestinian families from Bilin appealed the designation of their land as state property; a few even managed to prove their ownership. In 1992, with the process completed, Albeck reminded military authorities that the “state land” really belonged to the Fund for Redemption of the Land, but that this should be kept secret.

It’s true that Palestinian society regarded selling land to Jews as treason. It’s also true that fraud is rife in the sales that do take place. And it is terribly unlikely that dozens of Bilin families actually agreed to sell their land. Albeck accepted that the land could be sold, meaning that it was privately owned. Then, to help the purported purchasers avoid any legal scrutiny of the transaction, she arranged for the same property to be declared state land. Everything was done according to law. But the law existed to serve the cause of settlement, not the cause of justice.

And sometimes settlements simply stole privately owned Palestinian land, without pretense of purchase. Ofrah is the extreme example. The army database assembled by Brigadier General Baruch Spiegel lists others. At Beit El, north of Ramallah, “the northern neighborhood . . . was erected mainly on private [Palestinian] land,” the Spiegel Report states. The northeast neighborhood—including twenty residential buildings, a school, and an industrial park—stands entirely on stolen land. At Ma’aleh Mikhmas, east of Ramallah, Spiegel found a new development on Palestinian property. The full list is much longer. The state stood by and let the theft take place.

Theft was only one of the offenses that went unpunished. In 1981, attorney general Yitzhak Zamir appointed a high-level team headed by his deputy, Yehudit Karp, to monitor investigations of offenses by Israelis against Palestinians in the West Bank. The Likud’s settlement drive was still in its early stages. Just 16,000 settlers lived in the West Bank, about one-twentieth of today’s figure, but the contagion of lawlessness was already blatant. A year later, Karp wrote a strongly worded, despairing report, a window on that one early year in the occupation.

Incidents of Israeli civilians shooting and wounding Palestinians had been on the rise, Karp wrote. But the police said “they were unable to keep track” of such cases, so they did not investigate. They did little more when a Palestinian was shot dead. After an apparent murder in the village of Bani Na’im, near Hebron, a delegation of settlers, including the mayor of Kiryat Arba and one of the suspects, arrived at a police station and announced that settlers would not cooperate with the investigation. The police did not bother to detain or question the suspect. Kiryat Arba, on the edge of Hebron, had been built by the government to house the Orthodox activists who had tried to settle inside the Palestinian city. It was known for its particularly intense mix of religion and nationalism, and appears several times in Karp’s report as the apparent home of perpetrators of violence against Palestinians.

Karp detailed fifteen cases out of a much larger number of failed investigations. She attributed the “ambivalence” of the police about tracking down offenders to “the natural complexity of the situation,” a polite way to describe Palestinians living under Israeli military rule while the government sponsored settlement of Jews in their midst. The police, she wrote, did not relate to suspects as “criminals in the normal sense.” Worse yet, officials of the military government often interfered in investigations, ordering the police to drop cases or free suspects. The chief of investigations for the police’s Judea District—the southern half of the West Bank—had reported “his impression” that someone high up in the army or Defense Ministry had let settlers understand that they were “soldiers for all practical purposes,” not subject to the authority of civilian police. Karp concluded that there was no point in the team continuing to monitor the police. It would only serve as a fig leaf for a failed system that required “radical rethinking of what the rule of law means.”

Even when Jews were tried for attacks against Palestinians, the justice system showed a split personality—treating the perpetrators as criminals, but also as misguided patriots and sometimes as victims of Palestinian violence. In 1988 Moshe Levinger went on a rampage after Palestinians threw rocks at his car in Hebron. Levinger walked down the street firing his pistol wildly and killed a shopkeeper standing in front of his shoe store. In a plea bargain, he was convicted of “causing death by negligence.” Sentenced to five months in prison, he served three.

The Jewish terror underground of the early 1980s serves as the most extreme example of schizophrenic justice. The group’s twenty-eight members, most of them settlers, crippled two Palestinian mayors and an IDF sapper with explosive booby traps, murdered three students at a Hebron college, attempted to bomb five East Jerusalem buses during rush hour—and plotted to blow up the Dome of the Rock in Jerusalem in order to shatter Israel’s peace agreement with Egypt and prevent the Israeli withdrawal from the Sinai. Judges in the case noted that if carried out, the Dome of the Rock plot could have ignited war with the entire Muslim world. Three men were sentenced to life for the Hebron murders. But with repeated commutations, they walked free after less than seven years in prison. Yehudah Etzion, mastermind of the Temple Mount plot and an organizer of the attacks on the mayors, spent less than five years behind bars. Ze’ev Hever, charged with attempted murder for trying to booby-trap another Palestinian leader’s car, was free on a plea bargain a year after his arrest. In a 1986 interview, he told me he was “not ashamed” of what he’d done. Involvement in terrorism did not hurt his career. As of this writing, he has been the secretary-general of Amana, a settlement-building organization with close government ties, for over twenty years.

Karp’s report did not spark the rethinking of the rule of law that she sought. The “natural complexity of the situation” prevented that. As she noted many years later, the army and the police understood their role as protecting Israelis, not Palestinians. Put differently, they were not responsible for the welfare of the governed, for equal enforcement of laws, or for preventing conflict; they were a side to the conflict. The presence of Israeli civilians in the midst of a population under military occupation made this inevitable. As for the settlers, they were “soldiers” serving the policy of creeping annexation, but were not subject to military discipline or even to consistent legal constraints. For beyond the selective attention to international law, beyond the dual legal system and the misuse of local law, the settlement project turned occupied territory into a realm where, ultimately, there was no law.

The rule of law, in its substantive sense, is essential to a democratic state. By increments, the settlement project hollowed out the rule of law. Clear borders are fundamental to democracy. Settlement erased Israel’s border, or created several. For Jews, the state stretched from the Mediterranean to the Jordan, or perhaps to the Green Line plus the municipal limits of settlements. For Palestinians, the Green Line marked where government by the consent of the governed ended. Palestinians in occupied territory were only the subjects of military government. Unlike Arabs who had lived under military rule in Israel, they were not also “citizens of a liberal nation-state.” No political party in Israel stood to gain votes by paying passing attention to their needs.

From July 1967, all those involved in settlement saw themselves as serving Zionism. In fact, they were doing the opposite. They were living backward, turning a state into a movement. Stone by stone, they were dismantling the state of Israel.

All of this, I must stress, spurred opposition inside Israeli society, which has grown as the occupation has stretched on and settlement has expanded. Even in the ecstasy immediately after the Six-Day War, a few sober voices warned of the consequences of ongoing occupation. Egyptian president Anwar al-Sadat’s visit to Israel in 1977 catalyzed the start of the Peace Now movement, which demanded that the government show its willingness to cede land for peace. Human rights organizations have sprung up and made the abuses in the occupied territories much or all of their agenda. The perennial problem of the critics has been that while they write reports and hold marches, the coalition of state agencies and settlers has continued “creating facts” by building houses in occupied land.

The unplanned war of 1967 and the ill-considered settlement effort afterward had another consequence, entirely unintended: they transmogrified religious Zionism from a moderate political movement to a sect with Jewish control of the Whole Land of Israel as its primary principle of faith.