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Can Israel’s courts deliver justice for Palestinians?

The demolition of Palestinian-owned buildings by Israeli forces in the occupied West Bank and East Jerusalem is a routine occurrence.

But in Sur Baher, a neighbourhood southeast of Jerusalem, an unprecedented mass demolition is looming – with the approval of Israel‘s top court.

Ten inhabited and under-construction buildings, containing dozens of apartments, are marked for destruction, after falling foul of a 2011 Israeli military order prohibiting construction within a 100-300-metre buffer zone of the separation wall.

While most of Sur Baher lies within Israel’s unilaterally-annexed East Jerusalem municipal boundary, part of the community’s land lies in the West Bank – land that has nevertheless ended up on the “Israeli” side of the internationally-condemned wall that has been deemed illegal by the International Court of Justice.

Last month, Israel’s Supreme Court gave the green light for the demolition in Sur Baher – even though the buildings in question were built on land designated under the civilian control of the Palestinian Authority (PA), from whom construction permits were duly obtained.

Israeli authorities have set a deadline for Thursday, July 18.

The Supreme Court’s decision sits awkwardly with its international reputation as a defender of human rights. Indeed, the court has long been an anathema for some on the Israeli right, who have complained of an alleged liberal bias and judicial interference with legislation.

But Hagai El-Ad, executive director of human-rights NGO B’Tselem, told Al Jazeera that in order “to form a meaningful view regarding the Supreme Court, one needs to examine its record.

“And that record speaks volumes, demonstrating unequivocally how the court routinely rejects petitions filed by Palestinians – while providing a stamp of legal approval to systematic human-rights violations, including forcible transfer, collective punishment, blanket impunity to Israeli security forces and torture”, he added.

Sawsan Zaher, deputy director of Haifa-based legal rights centre Adalah, agreed.

“If you are looking at the Supreme Court vis-a-vis the occupied Palestinian territory, in the vast majority of cases the court has dismissed petitions challenging violations of international humanitarian law, regardless of whether the justices were conservative or more ‘liberal'”, she told Al Jazeera.

According to Zaher, the court’s approach to petitions brought by Palestinian citizens differs.

“Some are accepted – typically those related to classic discrimination cases, such as regarding budget allocations”, Zaher said.

But Zaher added that the court uses “all kinds of excuses and interpretations to justify dismissal” when it comes to “cases that are at the core of the national conflict between the state and Palestinian citizens as a minority” and Israel’s “existence as a ‘Jewish state'”, including in issues related to “land and demography”.

But it is the court’s intervention – or lack of it – in Israel’s discriminatory planning system and associated demolition of Palestinian homes which has perhaps been most under the spotlight of late, including in high-profile cases of pending forced displacement like in the example of Khan al-Ahmar village.

In April, the justices denied a petition on the demolition of Palestinian homes built without a permit, clarifying that they would not discuss the planning regime in which such demolitions occurred – only whether or not the structures had been built “legally”.

B’Tselem, in a report this year on the Supreme Court’s “responsibility” for the “dispossession of Palestinians”, stated that to the best of its knowledge, “there has not been a single case in which the justices granted a petition Palestinians filed against the demolition of their home”.

For Dalia Qumsieh, a senior legal adviser at Palestinian rights NGO Al-Haq, the Sur Baher case “demonstrates a pattern of the [Supreme] Court refraining from deviating from the plans of the government, and even granting all its demands,

“In general, the court does not question the legality of the policies or measures themselves,” she told Al Jazeera. “Rather, it engages in technical, legal details pertaining to the implementation of such policies.

“The maximum success that you can achieve by litigation in the Israeli system as a Palestinian cannot exceed minor protections, nowadays even more difficult to attain,” she added.

Others said that even those “minor protections” are under threat.

“The composition of the Supreme Court has changed”, Zaher said, pointing to the 2017 judicial appointments made by the-then Justice Minister Ayelet Shaked.

“Today, the conservative critique of the court has changed; instead of accusations of a ‘liberal’ approach to Arab minority petitions, the right is critiquing the court’s ability to even discuss the constitutionality of legislation”, Zaher added, describing the court’s trajectory as not good.

According to Qumsieh, while the court “was never a true venue where justice can be delivered for Palestinians”, recent years have seen “grave developments pertaining to the work of the court”, and in particular, a “strengthening partnership” between it and the Israeli government.

“This partnership has evolved from pressuring Palestinian petitioners to accept the Israeli army’s plans, to actually dictating to the government what it needs to do to legalise illegal policies,” she added, citing the case of the revocation of Jerusalem residency from Hamas-affiliated politicians.

For some, such as B’Tselem’s El-Ad, the reality of the court’s jurisprudence means “the question is: to what realistic end does one litigate before it?”

For lawyers and human-rights groups – Palestinian and Israeli – the merit of engaging with the Supreme Court remains an open question.

“The court has never sincerely challenged any of the core policies that keep the occupation standing”, Qumsieh said, “to the extent where it became one pillar of the occupation itself”.

Published first by Al Jazeera English.

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