A group of ultra-Orthodox Jews from the nearby Tel Zion settlement perform the blessing of the trees prayer in support of the residents of Migron in the occupied West Bank on March 26, 2012.
The Israeli government and settler circles, which overlap more than a bit, are reeling this week after the nation’s high court ruled that it really meant it when it ordered that a hilltop outpost on the West Bank must be torn down this month.
The outpost, dubbed Migron, stands under an array of cell phone towers just outside Jerusalem, alongside the main highway traversing the West Bank from south to north. More than 300 people live in Migron but in the legalistic nomenclature of the Israeli occupation, Migron is not a “settlement” but rather an “illegal outpost.” According to the consensus of the international community, every neighborhood the Jewish state has built on occupied Palestinian territory is illegal, violating international laws codified in the Geneva Conventions. But for its own purposes Israel draws a distinction between the 137 subdivisions the state has officially sanctioned as “settlements,” and the 100 newer gatherings of houses or trailers dubbed “outposts.”
Palestinians say the effect is the same – settlement or outpost, the clusters of homes brought 300,000 Israelis to live on land the world recognizes as Palestinian, and the buffer zones and restricted roads aimed at protecting them exclude the Arab population from 40 percent of the West Bank. But Israel’s government says it took care to build settlements on land that no Palestinian claimed to own individually, while outposts are “illegal” because the people who built them paid no mind to property rights.
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The distinction defines “shibboleth” to Palestinians. They note that after hundreds of years under lax Ottoman rule, locals were only beginning to record who owned what when Israeli troops overran Arab forces in 1967, and soon began welcoming settlers. But making such a technical argument, they also note, risks accepting the conqueror’s terms of reference, and with it the “legality” of the settlements. “The whole Israeli picture is about creating a fait accompli, creating facts on the ground,” says former Palestinian peace negotiator Mohammad Shtayyh. In The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977, Israeli journalist Gershom Gorenberg quotes former Prime Minister and current President Shimon Peres boasting that it was his Labor Party that put settlers “in the Jordan Rift, the Jerusalem area, Ma’aleh Adumim [a Jerusalem exurb] and on the mountain ridge.”
“The whole Zionist enterprise in Palestine,” says Shtayyh, “is about settlements.”
One place the technical argument is useful even for Palestinians, however, is an Israeli courtroom. And the case against Migron was brought on behalf of Palestinians who had deeds for the hilltop it was built upon. Last year, Israel’s supreme court declared the outpost illegal and ordered Migron evacuated and leveled by April 2012. It was the first high court ruling against an outpost, and the government of Prime Minister Benjamin Netanyahu chose to ignore it, or at least the deadline. Netanyahu’s Likud Party is closely allied to the settler movement – settlers accounted for a significant fraction of votes in the Likud primary this spring – and Netanyahu dispatched a government minister to work out a compromise with Migron residents. Last month they finally agreed to stay until late 2015, at which point they would move into houses the government would build for them nearby, at which point they would have a genuine “settlement.”
(READ: Netanyahu ramps up settlement construction as Palestine gets recognized by UNESCO.)
It was that deal the supreme court unanimously rejected on Sunday. “Three years will turn into seven or eight,” the justices wrote. “What will the rule of law look like when a ruling is not upheld? And why weren’t the Palestinian petitioners included in the negotiations?”
The decision shocked the political establishment — not least because it was joined by newly seated Chief Justice Asher Grunis, a figure right wingers in the Knesset had helped into office by changing the appointment process to favor conservative candidates. That bill, while controversial, reflected the broad and relentless trend transforming Israeli society, which polls show each year grows more conservative and less sympathetic to the situation of Palestinians. “The outcry, which borders on the verge of astonishment, is understandable,” wrote Ben-Dror Yemini, a conservative columnist in Ma’ariv. Even so, some officials on the losing side of the high court’s decision sounded somehow chipper the morning after, bristling assertions of judicial independence being one of the more bracing features of life in a democracy.
“Thank God that we have a court in Israel that can nullify decisions made by the government,” said minister without portfolio Benny Begin. Begin, the son of the Likud founder, was the minister whose bargain with the settlers was thrown out, though he was doing his best to keep it alive in an interview with an ultra-Orthodox radio station. “Instead of the limited, cramped settlement that exists now,” he said, “a new neighborhood will be built for 200 families, and maybe more, for the glory of the state of Israel.”
And so it goes. In the course of admonishing the government for ignoring its last deadline, the high court extended the deadline, giving the settlers until August to leave Migron. On another hillside, farther north on the West Bank, a slender man named Raja Shehadeh shook his head at the news. A lawyer and human rights activist, Shahdeh also writes books. The best-known of them, Palestine Walks, is subtitled, Forays Into a Vanishing Landscape.
“Migron?” he says. “Migraine.”