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Migron Lawyer: ‘It’s Our Brown v. Board’

Celebrates Supreme Court victory, says Knesset has no further move

Marc Tracy
March 27, 2012
Migron earlier this year.(Ahmad Gharabli/AFP/Getty Images)
Migron earlier this year.(Ahmad Gharabli/AFP/Getty Images)

On Sunday, Michael Sfard, an Israeli human-rights attorney (as well as former IDF paramedic) scored a big victory. The Israeli Supreme Court ruled that a compromise that would have kept Migron, the West Bank’s most populous illegal outpost (that is, an unauthorized settlement built on private land), intact into 2015 was void; the town, which sits atop a hill east of Ramallah, must disappear by August. Sfard was employed by the left-wing Israeli group Peace Now to represent six Palestinian petitioners who are registered to some of the land Migron occupies, three of whom died in the course of the years-long litigation. He spoke with Tablet Magazine this morning about the importance of the Migron decision—and why it’s not the end of the story. The interview has been edited slightly for clarity.

I’m very … happy’s not the right word, but content. I think the ruling is important. The danger of an opposite ruling was really a big threat, because in some way Migron became Israel’s 21st-century test of whether we really uphold the rule of law and whether any communities amongst Israeli society is above the law. And I did feel, while litigating the case, that there was a huge clash between the executive and the judiciary here, and the question of who will prevail is extremely important here, not just for Migron.

Do you trust the government to abide by and implement the decision? Prime Minister Netanyahu said he would.
I don’t want to sound naive, but I truly believe that there are enough forces among Israeli society that would not allow the government to disobey a clear, final, and binding ruling of the highest court in our land. If I’m wrong, then on Aug. 2 Israel would not be the same country. It’s our Brown v. Board of Education. That case was about equality and integration, but I don’t mean that: I’m referring to the question of the importance of implementing final court decisions, and the analogy is that I hope our government will send the National Guard, or the equivalent, to make sure.

Why is Migron especially important?
It’s the biggest outpost in the West Bank. It houses the sons and daughters of the leadership of the settler movement. Migron is a flagship outpost in size and in coming from the aristocracy of the settlers.

Also, Migron is located on registered land. During the British Mandate, the British began a land registration. Israel has continued registration, and we have now full land registration. Jordan continued land registration in the West Bank. When Israel conquered the West Bank in 1967, it stopped the registration, and at that point 30 percent had already gone through registration, while in 70 percent it was not finalized. Migron is located in an area that was already registered, so it is impossible to dispute ownership and rights. In other cases I litigate—the second-largest outpost is in Gush Etzion, on private Palestinian land, but not registered land—upon litigating the case, when the state found itself in a similar position, they saw something similar, they said, “We are declaring a land survey to make sure that indeed your clients are the owners of the land. Maybe someone else is the owner.” And of course, the survey is just an excuse, and in fact they’re doing nothing. They can do that when it’s unregistered.

Some have said the Knesset can step in and prevent Migron’s evacuation. How does that work?
It’s difficult for me to explain it to myself. It’s a bit like children, when they are not happy with something, saying, “I’ll call my big brother, and he will show you.” When the court decided, the right wing said we will legislate in a way that will free us from this decision. The problem is that to circumvent the court decision by legislation, it must apply to the West Bank. Israeli legislation does not apply to the West Bank! Israel has never annexed or applied Israeli law to the West Bank. The Knesset doesn’t exercise jurisdiction over the West Bank. Even if it did, the kind of legislation needed would nationalize land, private property. That is not something that is constitutional. In the small number of exceptions that it is legal, it’s for very important public interests. There’s no public interest here, there’s only private interest. This is a bundle of nonsense.

Who owns the land?
Several dozen families in two villages call Burqua and Dir Dibwan. The area, the hill on which Migron is located, was divided into very small plots compared to other areas, so the number of owners is very large.

Three of the petitioners unfortunately died throughout the hearing of the case. Two died awaiting ruling, one recently died waiting for the implementation. They were all Palestinians who were registered as land-owners. The other three are younger and they are heirs of the registered owners.

Do you have other, similar cases pending?
I’m involved in more than 30 other cases at different stages.

Marc Tracy is a staff writer at The New Republic, and was previously a staff writer at Tablet. He tweets @marcatracy.