Human Rights Dialogue (1994–2005): Series 2, No. 2 (Spring 2000): Litigating Human Rights: Promise v. Perils: Articles: Resisting Litigation in Umm El-Fahem

Apr 6, 2000

Some human rights organizations err by pursuing litigation as their sole strategy. Doing so often means relying upon a course of action that does not recognize the interests of the abused and can harm popular mobilization. Human rights organizations must therefore be careful when deciding to use legal tools in political struggles. A case in point is the 1998 land expropriation attempt in Umm El-Fahem, a Palestinian town in central Israel.

Part of the ongoing process of Palestinian dispossession since the 1948 establishment of the state of Israel, the policy of confiscation lies at the heart of the historic conflict between the two groups. Over 80 percent of Palestinian-owned lands have been taken by the Israeli government, which does not recognize the right of Palestinians to self-determination.

In May 1998, the Israeli Defense Forces informed residents of Umm El-Fahem that some of their lands were to be transformed into a military firing range. Landowners’ entry would be limited; they would be able to cultivate their farms only on weekends and would need special entry permits and costly insurance policies. The landowners sent numerous letters of protest to Israel’s prime minister and staged demonstrations in Jerusalem, to no avail. Several months later the town’s mayor asked our group, Adalah, the Legal Center for Arab Minority Rights in Israel, to file a petition to the Supreme Court of Israel.

We declined the request. Legal logic depoliticizes unequal power relations by casting them as competing interests that can be balanced in a rational, objective, and ahistorical way. In the Israeli courts, the Palestinian struggle for land is reduced to a standoff between the government, which wishes to take the land “for the benefit of the public,” and individuals struggling to preserve their rights to property ownership. The application of law turns the policy of land expropriation into a series of isolated events removed from their larger context. Lawyers who argue against confiscation inherit these modes of presentation, and must thereby abandon notions of justice and group rights in favor of a language of “balanced interests,” which detracts from the larger Palestinian struggle.

In this case, because Israel sought to expropriate the Umm El-Fahem land for military use, we would also inevitably have had to confront security arguments in court. Political chimeras typically invoked in the national struggle over lands, security arguments are of paramount importance to the state, privileged by the Supreme Court, and virtually impossible to counter. The only way to challenge these arguments in court is to contend that they do not justify violation of ownership rights in a specific case. In doing so, lawyers must unwillingly take on the inherently flawed and obfuscatory thinking of the security argument in order to establish an exception to it, thus endowing it with a measure of validity.

In the absence of the courts, what is left to do for those who wish to challenge Palestinian land confiscation policies? In the case of Umm El-Fahem, the community has continued the fight successfully through political means––protests, strikes, networking, parliamentary discussions, and the media––for the purposes of influencing public opinion and embarrassing the Israeli government. By these tactics, it has succeeded in delaying the confiscation. For two years, the issue has been the focus of negotiations between the local Umm El-Fahem committee and the Israeli Ministry of Defense regarding the permanent status of the land. No agreement has yet been reached, but no confiscation has been executed either.

Having resisted litigation, we at Adalah have been assisting the Umm El-Fahem community in other, more effective ways. In September 1998 the Umm El-Fahem landowners and community leaders set up a protest tent on the disputed land and initiated mass demonstrations. The violent reaction of the Israeli police forces received widespread local and international media attention. Since then, Adalah has been providing technical assistance to community groups that formed in response to this incident, advising a group of local lawyers who are gathering affidavits from witnesses and injured individuals and representing those arrested and indicted. We also provide legal advice to a representative group of the owners of the confiscated lands, community leaders, and sympathetic members of the Knesset (Israel’s parliament).

What would have happened had the Umm El-Fahem case been litigated? The court would likely have dismissed it. Would such an unfortunate verdict have mobilized a political struggle in the community, as sometimes happens? Not likely in this situation. The community’s involvement was already at its peak at the time they wanted us to help them approach the Supreme Court. Why didn’t we consider a case based on international human rights law, which can, in theory and sometimes in practice, circumvent the limitations of a state legal system to help victims redress human rights violations? Again, it is unlikely that an Israeli court would accept such a petition. Although many of Umm El-Fahem’s leaders frequently invoke human rights language, and international law reflects Palestinians’ notions of justice better than Israeli law, human rights does not resonate with the average person in the community. For this reason, the political value of a human rights case would have been as minimal as a case tried within the Israeli legal system.

Whether national or international laws are applied, litigation cannot mobilize communities when grounded in an alien legal logic. And, generally speaking, litigation can foster an overreliance on indirect intermediaries such as human rights organizations, and displace direct popular struggle against the state as the primary means for achieving social justice. In the absence of litigation, the activists of Umm El-Fahem have been prompted to engage successfully in grassroots struggle, using modes of presentation that allow a clearer articulation of their interests.

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