A losing battle in Israel’s High Court of Justice

One would hope that the U.S. State Department’s unusually harsh condemnation of steps taken by the Israeli cabinet in recent weeks to expand construction in the West Bank settlements and East Jerusalem will not fall on deaf ears. However, two recent decisions in the Israeli High Court of Justice suggest that no measure of strong words will impact Israel’s blatant disregard of international law.

This fact is most stark in East Jerusalem – a territory which was occupied in 1967 by Israel and immediately annexed to create what is known in Israeli society as “united Jerusalem.” The two recent verdicts by the Israeli High Court of Justice – an institution enjoying a worldwide reputation for defending liberal values – seem to have little in common, apart from the fact that they both deal with issues related to East Jerusalem.

The first ruling dealt with a Palestinian couple: the wife was an Israeli citizen and the husband was from the West Bank, and their application to live together in Jerusalem (“family unification”) was processed by the Israeli Ministry of Interior’s office in East Jerusalem. Most East Jerusalem Palestinians hold only permanent residency status, given to them by Israel following the 1967 annexation, and refrain from applying for Israeli citizenship for obvious political reasons. In this case, as the wife was an Israeli citizen, the couple petitioned to have their application processed by the Ministry’s office in West Jerusalem, where all the other Israeli citizens (the vast majority Jewish) are serviced. When the Ministry refused their request, the couple petitioned to the High Court of Justice, arguing discrimination, given that services offered in the East Jerusalem office are far worse than those in the West side.

The High Court dismissed the petition, and accepted the State of Israel’s argument, according to which the Ministry of Interior services are given on a geographical basis – Jerusalemites who live in West Jerusalem go to the Ministry’s office in the Western area of the city and those living in East Jerusalem are required to go the office at the East. This argument is absurd, as more than 200,000 Israeli Jews live in East Jerusalem, but receive their services from the Western office.

The official justification for this discrepancy stems, as always, from the security situation: entry into East Jerusalem is life-threatening for Jews. This assertion ignores both the fact that many of these same Jews already live in the heart of or adjacent to Palestinian neighborhoods, and the strict security measures that are taken in the Eastern office—arguably stronger than those surrounding their settlement complexes– reduce the risk to the minimum.

All this, in the shadow of a sparkling new office the Ministry of Interior recently opened in Har Homa – an East Jerusalem settlement which was built in the 1990s against heavy international criticism. This office serves only the Jewish Israeli residents of Jerusalem—regardless of where they reside. Yet, the Palestinian residents of Zur Baher, the adjacent neighborhood—where must they go? Across town to the “Palestinian” East Jerusalem Ministry of Interior office. The geographic argument, alas, has a few caveats.

The petitioner in the second case was “Emek Shaveh”, an organization working to prevent the politicization of archaeology in the context of the Israeli-Palestinian conflict. The organization petitioned against the decision of the Israel Antiquities Authority to transfer the archaeological artifacts and library from the Rockefeller Archaeological Museum, located in East Jerusalem, to a new building in West Jerusalem.

The Rockefeller Museum was built in 1938, during the British Mandate, and was for decades the major museum of antiquities in Palestine. The museum holds many important archaeological finds from Israel/Palestine, including artifacts originating in the West Bank from excavations that took place there during the British Mandate. The Antiquities Authority argued that transferring the finds to West Jerusalem will protect them better and ease the access of the “general public” to them.

“Emek Shaveh,” however, argued that international law prohibits the transfer of cultural assets from an occupied territory to the domain of the occupying power. This argument is based on the notion that East Jerusalem, as the rest of the West Bank, is an occupied territory. As such, Israel’s application of Israeli law to the territory is unlawful under international law.

The High Court of Justice dismissed this petition, as well, stipulating that the Antiquities Authority acted according to Israeli law, which applies, according to Knesset legislation, to East Jerusalem, as well. The Court cited previous rulings stating that in cases of contradiction between Israeli law and international humanitarian law – Israeli domestic legislation prevails.

The two rulings represent two different policy trends that have been developing following the Israeli annexation of East Jerusalem. On the one hand, using the annexed territory to Israel’s own benefit; on the other hand, despite official ostentatious declarations on the notion of a “united Jerusalem,” keeping a clear separation between the two city populations and treating its Palestinian inhabitants –residing in their hometown for many generations – as second-class citizens.

Seemingly, these are two separate trends. In fact, they both consolidate into one line of policies demonstrating that in annexing East Jerusalem – which included a West Bank territory almost ten times larger than the pre-1967 Jordanian-controlled city – what Israel actually desired was taking over the territory while heavily restricting the development of the Palestinian population and ignoring their basic rights.

It is also difficult to ignore the whiff of colonialism, mixed with orientalism, wafting up from the Rockefeller Museum’s decision. Extracting the archaeological finds and library from their original location, and claiming custody over them, is just another step which enables the occupier (in this case, Israel) to exercise its powers at the expense of the occupied population (in this case, the Palestinians) and its political desires to be recognized as people with its own territory and history.

And so, the Israeli judiciary will most likely continue to refrain from intervening in many of the practices taken by the Israeli governments, such as expropriation of Palestinian lands for the purpose of settlement building, revocation of many Palestinians’ residency status, settlers taking over Palestinian homes, and harsh limitations on family unification between East Jerusalem Palestinians and their West Bank or Gaza spouses.

These rulings and others have proven to East Jerusalem Palestinians that their Israeli IDs are no shield against the systematic discrimination of the Israeli judiciary.