Friday, February 12, 2010

Israeli Law and Palestinians - Land and Remand

Two important decisions from the Israeli courts that were issued yesterday and today exemplify the problematic relations between Jews and Palestinians (whether they are citizens of Israel or not). Yesterday, the Supreme Court invalidated a law that allowed for remanding terrorism suspects in absentia. The Court held that deciding on remand without having the suspect present violates his constitutional right to be present during deliberations pertaining to his arrest.

The decision is, of course, important, and it is very rare for the Israeli Supreme Court to invalidate laws. However, it's important to note that the law was in fact designed to target not suspects generally, but only those suspect of "security" offenses", a term that can be construed to include many offenses, not only terrorist attacks. This means that the real targets of the law were Palestinians. The Israeli Knesset (parliament), especially after the last elections, has been on a mission to make the lives of Palestinians harder and harder. There have been attemtps to enact loyalty oaths, prohibitions on commemerating the 1948 events (the Palestinian Nakba), and the immigration laws are pretty much designed to keep Palestinians out of Israel. Palestinians in Israeli jails generally receive worse treatment and it's much more difficult for them to get visitors (the process for visiting security prisoners is different than the general prison population).

Although the Supreme Court decision should be viewed favorably, it's important to juxtapose it with a seemingly different decision that came out today from the Tel Aviv District Court. The Court rejected a petition that challenged a decision by the Tel Aviv municipality and the Israel Land Administration (ILA, an administrative agency that effectively owns and manages most of the lands in Israel) to lease land in Jaffa's Ajami neighborhood to a company called "B'Emuna" (in faith). The company focuses on the religious Zionist community and its housing project is designed exclusively for them, with the purpose of excluding those who don't fit the religious Zionist profile (Hint: Palestinians). This is especially problematic because Ajami is one of the few remaining Palestinian neighborhoods in Jaffa after 1948, so the project is perceived as another step in Israel's quest to alter the demographic statistics in this mixed city.

The Court explained its decision by saying that since the only criterion in picking the tender's winner was financial, there was no discrimination in awarding the contract to "B'Emuna". This reasoning, however, is flawed. The land in question is not private land, but public land, owned by the state of Israel. In a previous landmark decision, the Supreme Court held that the ILA cannot discriminate in its decisions to allocate land. Furthermore, another decision by the Supreme Court has held that discrimination does not have to be intentional. The test, therefore, is outcome-oriented. If the decision effectively discriminates, it is invalid, whether or not there was intent to discriminate. Thus, looking only at financial criterion misses the picture. Very often, religious groups backed by powerful financiers from overseas will be able to make higher offers than local developers. But if their intention is to drive out the local population, who just happen to be Palestinians, that practice should be disallowed, especially since the land is state owned.

Sadly, this decision maps on to the ongoing practice in the Occupied Territories of religious Zionist Jews and ultra-orthodox Jews seeking to buy or develop houses in densely populated Palestinian areas, as has been going on in East Jerusalem. When such attempts fail, these groups sometimes resort to evicting the local population by tracking down the original owners and seeking court orders.

Although the decisions deal with different areas of law (remand and land), they are both examples of the problematic and schizophrenic approach taken by the Israeli justice system to the fact that Palestinians are both citizens and potential enemies. Unfortunately, the stalemate in Israeli-Palestinian peace negotiations is only likely to exacerbate such phenomena. If Israelis come to realize that the conflict cannot be resolved through negotiations, they will move more and more to legalize practices that secure their dominance in the region, thus making any possible negotiation extremely difficult or simply redundant.


  1. Practices like these and the ongoing construction of settlements in East Jerusalem will at some point render the peace process moot altogether. Sigh.

  2. If we regard the law as a tool to shape civil society, and if the judiciary is only one of several political actors who deploy the law in that effort, then why should we look askance at outcome-oriented tests?

  3. Richard, I agree with your first part, but what do you mean by looking askance at outcome-oriented tests? I don't think I necessarily have a "legal" problem with these tests. What I object to is the substantive content of the normative vision they seek to promote.

  4. Ok. Now I see, Adam. I was wondering whether you thought is was improper for a judge to reason backward, that is to say, for a judge to have a specific result in mind -- for instance, X is bad -- and then to craft an opinion that allows her to reach and defend that conclusion, instead of beginning from first principles and reaching an answer that is not pre-determined.

    Because if you agree that the law is just an instrument in the toolkit of social engineers, then this kind of decision-making should not be objectionable. Right?

  5. Right. Being the realist that I am, I don't find it objectionable (though there are interesting questions of good faith here and complicated questions of rule of law that have to figured out). The objectionable part would be with the content of the decision (is it justice promoting) rather than the judicial methodology.


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