During the last few weeks, the whole world closely followed what is happening in Jerusalem; neighborhoods like Sheikh Jarrah and Silwan started to be mentioned frequently in the international media and the stories of Palestinian families’ displacement started to get more attention around the world. Also, court hearings and court appeals started to be part of the news as well.

The residents of these East Jerusalem’s neighborhoods and thousands from other neighborhoods had appealed or/and petitioned to one Israeli court or other, requesting to freeze the displacement and demolition of houses, stopping settlers from taking their land, changing the route of the wall and other cases.

I graduated from the school of law at the Hebrew University of Jerusalem, after which, I had the opportunity to join one of the biggest Israeli law firms in Tel Aviv. At that time I represented five of the biggest Israeli companies, and if you had asked me then how I see the Israeli court system, I would have told you that it is a system that you can trust.

As years passed, I moved from Tel Aviv to Jerusalem and started working as a legal and political consultant for diplomatic missions and as an attorney to represent Palestinians in public interest cases. If you ask me now how I see the Israeli Court’s system, I will give you a totally different answer, although it is still the same system.

Over the years, Palestinians have filed thousands of petitions with the Israeli courts (here, I am only referring to cases related to the conflict), seeking to freeze and overturn Israeli authorities’ decisions related to Palestinian daily life issues. In most cases (more than 95%), the courts have accepted the authorities’ positions and have allowed them to implement their arbitrary policies.

The laws and the courts

There are over 70 Israeli laws that directly or indirectly discriminate against Palestinians (either Palestinian citizens in Israel and/or Palestinian residents of East Jerusalem) on the basis of their nationality. Most of these laws are worded to look neutral, but have or will likely to have a disparate impact on the Palestinians when they are implemented.

These laws limit the rights of Palestinians in all areas of life: from citizenship rights to political participation, land and housing rights, education rights, cultural and language rights, religious rights, and due process rights during detention.

One of the most problematic laws is the Absentee Property Law: the law which defines persons who were expelled, fled, or who left the country after 29th November 1947, and the day of the law’s publication (March 20th 1950) mainly due to the war, as well as their movable and immovable properties (mainly land, houses and bank accounts) as “absentee”. Property belonging to absentees was placed under the control of the State of Israel with the Custodian for Absentees’ Property. The Absentees’ Property Law was the main legal instrument used by Israel to take possession of the land belonging to the internal and external Palestinian refugees. Most Palestinian families have an absentee member, and this law has put many Palestinian properties at big risk. On the other hand, there is no such risk for Israeli Jew properties, and they can also claim properties that Jewish families owned tens or hundreds of years ago (even before 1948).

The role of courts in such cases is still important, because and even though the laws themselves are very discriminatory, courts’ interpretation of its various provisions have made it almost impossible for Palestinians to win any cases. In Sheikh Jarrah and Silwan cases, the courts refused to check the chain of ownership and how the Palestinians ended up owning the properties in good faith.

Also, in many other cases that are at the core of the national conflict between the State of Israel and Palestinians, the courts have used all kinds of excuses and interpretations to justify dismissing the cases, especially those relating to land and demography. According to B’Tselem, the largest Israeli human rights organization, in its 2019 report on the Supreme Court’s “responsibility” for the “dispossession of Palestinians”, it stated that to the best of its knowledge, “there has not been a single case in which the justices granted a petition that the Palestinians filed against the demolition of their homes”.

Here, it is important to look at the Israeli Supreme Court’s decisions to justify different arbitrary policies against the Palestinians, even when the laws were not clear or did not exist. The justification of building the Separation Wall, green lighting of holding Palestinians’ bodies as bargaining chips, and withdrawing East Jerusalem residents’ residency in case of holding another foreign citizenship are just a few examples of how the Court is justifying the authorities’ actions and allowing them to implement their policies.

Illusion of Justice

I believe that one of the biggest images for Palestinians using the Israeli court system is the illusion of justice that the international community gets. For many diplomatic missions, the fact that the case is under the court’s review is enough to stop the pressure on the Israeli authorities. The international community gets the feeling that the courts will deal fairly with the cases –especially those dealing with property – and that justice will be served.

This illusion of justice will prevent effective diplomatic pressure on the Israeli authorities and allow them to use the time to create false facts. However, I also understand the importance of using the courts’ system for Palestinians who are under the threat of house demolition and displacement. For them, an interim injunction from one of the courts is positive news, because it would allow them to sleep peacefully at least for a few months until this injunction might get overturned.

This illusion of justice can be clearly seen in core national conflict cases like those described above – justifying the separation wall, justifying holding bodies as bargaining chips, justifying using Palestinian natural resources and justifying the settlements in the West bank.

In conclusion, I cannot ignore the benefits of Palestinian individuals using the Israeli court system in certain cases, especially when the courts issue an interim injunction and freeze the authorities’ actions against them. Also,  as I mentioned above, in cases not relating to the conflict, the Israeli court system and judges have shown a lot of professionalism. But unfortunately, in cases relating to the conflict (especially its core matters), the courts usually side with the actions of the authorities and the settlers’ ownership (in cases where the settler’s ownership matters). For all of these reasons, I think that the Palestinians need to deal very carefully with the Israeli court system and use them wisely. At the same time, the international community must understand that the courts cannot help in this conflict and must step in to find a political solution very soon.

Moien Odeh is a PhD student at George Mason University, Carter School for Peace and Conflict Resolution. He has worked as a human rights attorney and represented Palestinians in public interest cases in the Israeli legal system. He has also held positions of a political nature, acted as an IHL advisor for diplomatic missions in Jerusalem and Ramallah and he is a member of Al-Shabaka: The Palestinian Policy Network. He holds an LL.M degree from the University of Pittsburgh, and LL.B and B.A. Accounting degrees from the Hebrew University of Jerusalem. 

Suggested citation: Moien Odeh, Should the Palestinians Keep Seeking Justice at the Israeli Court System?, JURIST – Professional Commentary, June 14, 2021, https://www.jurist.org/commentary/2021/06/moien-odeh-israel-palestine-court-system/.

This article was prepared for publication by Giri Aravind, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org