Israel’s Supreme Court greenlights state to commit war crime; if implemented, the justices will also be liable

 

On Thursday, 24 May 2018, three Israeli Supreme Court justices – Noam Sohlberg, Anat Baron and Yael Willner – ruled that the state may demolish the homes of the community of Khan al-Ahmar, transfer the residents from their homes and relocate them. This ruling removes the last stumbling block in Israel’s way in the matter, lifting the impediment which had thus far served to defer the transfer of the community, a war crime under international law. While it is a policy shaped by the government, the justices – here as well as in other cases – pitched in and paved the road to the commission of a war crime. Personal liability for the commission of this crime will fall not only on policy-makers. Those who paved the juridical route enabling the crime are equally liable.

For years Israel has been endeavoring to displace this community for a variety of reasons, including the expansion of nearby settlements, de facto annexation of the area – without its Palestinian residents, and bisecting the West Bank, cutting it in two. To that end, Israeli authorities made the lives of the residents intolerable, hoping to make them leave their homes, ostensibly of their own volition. Khan al-Ahmar residents filed several petitions to Israel’s High Court of Justice against their being transferred. At the same time, residents from settlements in the area also filed petitions, seeking that the state implement the demolition orders. All the petitions were denied, after the state assured the court that it is seeking alternate solutions for the residents. In the latest petition, the state wrote that such a solution had been found and that it plans to transfer the residents of Khan al-Ahmar to West Jahalin, near Abu Dis. Although the residents objected to this plan, last week (on Thursday 24 May 2018) the justices rejected their arguments and ruled that the state is allowed to transfer them.
 

Justice Sohlberg, who wrote the ruling, stated that the “undisputed” premise of the examination is that “construction in the Khan al-Ahmar compound, both the school and the dwellings, is unlawful,” and therefore it is clear that the state has the authority to issue demolition warrants for these structures. Based on his line of reasoning, the only question the justices are called to rule upon is whether or not the court is allowed to intervene in the way the state elects to “enforce the law.” The justices answered in the negative, finding the state’s decisions reasonable.

The justices ruled this way so as to confine their role as Supreme Court justices to handling mere bureaucratic issues. They thereby ignored the context of Israeli policy vis-à-vis the people living in Palestinian communities in the West Bank, set aside the directives of international humanitarian law (IHL), and disregarded the very heart of the matter: the fact that Israel intends to commit a war crime.
 

Following are some facts that the justices chose to ignore in their ruling:

1. The determination that the “construction is illegal” is meaningless

The structures in the community were in fact built without the residents having been issued building permits from the Israeli authorities. However, the residents did not choose to do so because they are deliberate lawbreakers, but because Israel’s policy keeps them from even being able to apply for building permits. The state has always evaded its responsibilities in terms of planning for the residents of these communities. The plans it has suggested always involve radical changes in the residents’ way of life and were drawn up without consulting them. Plans that the residents themselves prepared and submitted to the Civil Administration were denied on a variety of grounds. It was only when Israel had a clear interest of its own – as for example in the present case of planning West Jahalin – that the authorities rallied to arrange for speedy approval of the plan.

2. The transfer will impose a radical change in residents’ way of life

Justice Sohlberg wrote that “the particulars of the solution, the area proposed for the families to live on, and the arrangements made for the members of the tribe to carry on shepherding, all indicate that the proposal is not one that makes the state’s decision to implement the demolition orders an unreasonable one which justifies judicial intervention.” Yet these statements fly in the face of reality and even contradict the statement made to the court by the state: the plan to transfer the residents to West Jahalin was made over the heads of the residents, without consulting them at all. The plan not only forces the residents to leave their homes but compels a drastic change in their way of life. Contrary to what Justice Sohlberg wrote, the plan does not enable the residents to continue working as shepherds, and the state said so plainly in its response to the petition: “The neighborhood is indeed planned in an urban environment. It therefore includes no large pasturelands or areas for farming, however it does allow for building limited storerooms and livestock pens, as supplementary farming for the families’ livelihood.”

3. IHL provisions state that forcible transfer of residents of an occupied territory is a war crime

The ruling is based exclusively on the argument of “unlawful construction” and that the court does not interfere in the state’s decisions in prioritizing “law enforcement” actions. However, the land from which the justices ruled that the residents be transferred is an occupied territory, and the provisions of IHL apply there. Neither the state nor the court troubled themselves to offer explanations for the breach of these provisions. They addressed the matter as though it were merely a minor technical issue of illegal construction.

But this is not a trivial or insignificant violation of IHL. It is a breach which is a commission of a war crime. The provisions of international law prohibit the forcible transfer of protected civilians, unless the security of the population or imperative military reasons so demand. Obviously these exceptions are irrelevant when the state seeks to take over the land for the purpose of future expansion of settlements in the area or for any such similar purpose.