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The High Court will not end the occupation, and yet…

Boycotting the Court because it props up Israeli policy (and yes, it does) will deny every individual Palestinian a chance for justice
Mariam Hammad, of nearby Silwad, points to a piece of land in the West Bank she says belongs to her but was taken by Israelis to build the outpost of Amona, November 2016 (Raphael Ahren/Times of Israel)
Mariam Hammad, of nearby Silwad, points to a piece of land in the West Bank she says belongs to her but was taken by Israelis to build the outpost of Amona, November 2016 (Raphael Ahren/Times of Israel)

Right-wing critics were quick to attack the judgement of Israel’s High Court of Justice, striking down the Regulation Law that would allow the state to expropriate private Palestinian land where illegal settler homes have been built. These critics used the judgement to repeat their ludicrous allegations that the court is a radical left-wing body, acting against the will of the people. But on the left, there are also those who attack the court no less fiercely, as a fig leaf for the occupation. Some of these left-wing critics assert that we should never turn to the High Court, even to obtain relief for concrete injustices, lest we grant international legitimacy to this court. This is the wrong conclusion.

It is certainly the case that since the High Court opened its doors to Palestinian petitioners, it has almost always sided with the state in its rulings, refusing to halt any of the essential manifestations of occupation. This includes the massive declaration of West Bank land as “state lands” and use of them for construction of settlements, massive military operations, home demolitions and deportations, and the detention of hundreds of thousands of people since 1967, adults and children alike.

The High Court has enabled military rule over a civilian population for more than half a century, and the perpetuation of two separate and discriminatory legal systems, creating an ethnocracy with rights and privileges for settlers and oppression and dispossession for Palestinians. The court’s role in granting occupation a legal stamp of approval has only deepened in recent years. Those that see the Court as a fig leaf to cover the nakedness of occupation may argue that the Court voiding the expropriation law, will only do long-term damage. According to this view, those rare cases where Palestinians succeed in obtaining a remedy from the court are liable to create the false impression that the Israeli democracy functions well and its legal system gives a fair hearing to Palestinians.

No one can argue that the High Court is going to end the occupation. But let’s be honest: no one currently has an effective strategy to end the occupation. And meanwhile, Palestinians suffer wholesale violation of their rights, and actual people are suffering. Is our role as human rights activists to remain purists, to reject a priori any petition to the court on principle? Can we afford to waive the possibility, however remote, that a single Palestinian woman, or man or child, will obtain an effective remedy from the court? I do not think we can. Our responsibility is to do our utmost to defend those who need our assistance.

Defense of human rights can take many forms. Demonstrations, documentation, naming and shaming, mobilizing international pressure – all of these are important. But in our tool kit, in the present circumstances, litigation is perhaps the most effective strategy we have. To paraphrase Winston Churchill on democracy, litigation is the worst strategy to defend Palestinian rights – except for all the other strategies.

Sometimes litigation works. If we look at the route of the Separation Barrier, for example, High Court petitions resulted in dozens of changes to the route. Whereas the original route of the Barrier would have isolated fully 16% of the West Bank, as a result of High Court petitions, the current route isolates “only” 9.4%. Obviously much more is left to be done. Recently the Israeli human rights organization HaMoked filed a petition to the court together with Palestinian farmers from the northern West Bank demanding the military dismantle 6 kilometers of the Barrier. If this petition is successful, it will save the livelihoods of the residents of these three villages.

The threat of annexation draws near, and would bring with it severe violations of human rights. In order to confront this threat, and as a lesson from the recent Court ruling on the Expropriation Law, we must make a clear distinction between human rights and political activism. Political actors looking for legal approval of their efforts to end the occupation would be wise to weigh very carefully any petition to the High Court, as this may only grant further legitimacy to Israel’s control over the occupied territories. On the other hand, for human rights activists, there can be no dilemma. We must use the legal tools at our disposal, including petitions to the High Court, as imperfect as this tool may be, in order to protect the dignity and lives and livelihoods of the Palestinian population under occupation.

About the Author
Jessica Montell is Executive Director of HaMoked: Center for the Defence of the Individual