No Justice at the Settlement Celebration

AP Photo/Tsafrir Abayov

Israeli Prime Minister Benjamin Netanyahu speaks during a ceremony marking 50 years since Israel captured the West Bank and other territories in the Six-Day War, in Gush Etzion settlement in the West Bank. 

Here's a new definition of chutzpah: You hold an Israeli state ceremony celebrating 50 years of West Bank settlement. Then, when the chief justice of the Supreme Court refuses to send a justice to participate, you accuse her of turning it into a divisive political event.

To add a bit more nerve, you can invite the ambassador of the European Union. When he declines, you accuse the EU—an essential Israeli ally—of maintaining a “legacy of hatred.”

See! The whole world hates us! They wouldn't come celebrate settlements with us.

I wish I were making this up. But the ceremony was real. It took place on Wednesday, near Kfar Etzion, the first Israeli settlement in the West Bank, on the 50th anniversary of its founding.

The psychology is also familiar. The Israeli right has a historic love affair with bombast. It thrills to show public defiance, even when doing so undermines its political goals. Backlash confirms an essential part of its identity: The left despises us, the world despises us, therefore we are. I don't quite get the psychology of loving to be hated. But as a political tactic for rallying your base, it's hardly unique to Israel.

And it was hardly the only absurdity in last night's ceremony.

Israel has lots of state ceremonies, usually annual memorial events—for fallen soldiers, or for famous leaders. Customarily, the chief justice of the Supreme Court has a seat of honor, along with the prime minister and president, or she sends another justice to represent the judicial branch. Ambassadors are invited and try to stay awake.

This year, though, the cabinet voted to have a special commemoration of 50 years since the conquest of the West Bank in 1967. A low-key email arrived in Chief Justice Miriam Naor's office and she designated a justice to attend. At this point, apparently, Naor either didn't consider the event overtly political or hoped to avoid a fuss.

Then she received the official invitation. It said the ceremony would celebrate the “liberation of” and the “return to Judea, Samaria, the Jordan Rift and the Golan Heights,” and listed the political guests of honor. All, rather naturally, were from the right. This time, an alarm bell went off in Naor's mind. She cancelled the justice's participation—but said nothing publicly till this week, when she got a letter of protest from Knesset Member Esawi Frej of the left-wing Meretz party against a judicial role in the event.

She wrote back that she'd already decided to pull out, so the point was moot. He put her letter on his Facebook page. And the good times began to roll.

Asked by the local media, the European Union embassy in Israel said that Ambassador would skip the ceremony, “in line with long-standing EU policy not to attend official events in occupied territory.” A settlement official shot back with that comment about the EU's “legacy of hatred”—apparently reflected in its uniquely close economic ties with Israel. The Canadian ambassador also said he wouldn't come. But Canada gets no respect; no one defamed him.

(The U.S. embassy avoided the fuss by refusing to say beforehand whether Ambassador David Friedman would attend. In the end, he didn't. But in an interview today to the Israeli news site Walla, Friedman showed his sympathies, and his utter lack of diplomatic skill, by declaring that “settlements are part of Israel.”)

Naor, though, was the main target of the right's fury. Tourism Minister Yariv Levin of Prime Minister Netanyahu's Likud said Naor had proved yet again that “Supreme Court justices bring to the court a personal, left-wing political agenda.”

A right-wing group actually filed a suit against Naor before the Supreme Court, demanding cancellation of the ceremony if the judiciary didn't participate. (Yes, they asked to cancel their own ceremony. Don't ask me to explain this.) So Naor filed a brief before a bench of her colleagues, citing the official code of ethics for judges, which state that a judge must not “participate in political activity or be a member of a party.”

The court dismissed the case. But Justice Minister Ayelet Shaked, whose chief cause is stifling judicial review of parliament and the government, issued a public letter to Naor accusing her of “creating the false impression that this is a political event.”

So, justice-less, the ceremony was held. Which, really, was appropriate for a celebration of settlement in occupied territory.

Besides the obvious ironies, let me mention more subtle ones. To start, Chief Justice Naor is a poor target for the right's wrath at judicial activism. The correct label for her is neither liberal nor conservative. It's cautious. Naor is known for postponing confrontations with the other branches of government, for saying that the time is not yet ripe for ruling on whether a law is constitutional.

Avoidance has also been the response of the Israeli Supreme Court to the settlement issue ever since 1967. On pinpoint issues, it has occasionally ruled against the government—for instance, deciding that the houses of a particular settlement, built illegally on privately owned Palestinian land, must be razed. More often, it has accepted the government's claims that an action is necessary for Israeli security or for the good of the Palestinian population, when the real and often obvious reason is to expand settlement (more about that here).

Most important, the Supreme Court has for 50 years avoided ruling on the legality—or rather, illegality—of settling Israeli citizens in occupied territory. It has given technical legal reasons that the issue is beyond its purview. The unstated reason may be a fear of having judges decide matters of state. Either way, the court's timidity has made settlement possible. In a way, it would have been appropriate to have a justice at the ceremony.

Then there's the venue, which may have contributed to the government's delusion that it could label the ceremony as apolitical. Kfar Etzion was and still is treated as a “consensus settlement” in Israeli politics, accepted even by many people who oppose settlement elsewhere. That's because it was founded in 1967 on the site of the original Kfar Etzion, a kibbutz that existed before 1948 and was conquered by Arab forces and its defenders massacred the day before Israel declared independence. The first handful of settlers in 1967 were children of the original kibbutz and of two others that had stood nearby. So Jews were merely returning to their homes.

Put differently, the right of return for 1948 refugees was taken as obvious—if the refugees were Israeli Jews. In the war of 1948, a small number of Jews fled from or were expelled from their homes in what became the West Bank and Gaza Strip—and the same things happened to hundreds of thousands of Palestinians in what became Israel.

The least popular position anyone could take in Israeli politics is to accept the right of all Palestinian refugees, or their descendants, to return to their pre-1948 homes. Yet by insisting on the special justification for reestablishing Kfar Etzion, every government since 1967 has unthinkingly justified the Palestinian demand. Last night's event was a celebration of political obtuseness.

And yet, there is good reason to mark the date. It's not just 50 years since settlement began; it's a century since the Balfour Declaration, the British statement of support for a Jewish polity. The first half of that century, until 1967, saw rising international support for the Zionist project—a Jewish state as providing self-determination for a long oppressed minority. The second half of the century has seen steadily falling support, as Zionism has come to stand for Jews ruling over another people.

The turning point was the start of settlement, aimed at making a temporary occupation permanent. The change should be marked, to remind us that another turning point is still possible—toward the end of settlement, a two-state agreement, and an equitable peace with the Palestinians. 

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