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From the field

Three Israeli Supreme Court justices greenlight state to commit war crime

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.

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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 Palestinian community of Khan al-Ahmar, transfer the residents from their homes and relocate them. Such actions, which would spell ruin for the residents’ lives, constitute a war crime for which all those involved in its execution will bear personal liability.

The residents of Khan al-Ahmar belong to the Bedouin Jahalin tribe. In the 1950s they were driven out of the area of Tel Arad in the Negev (within Israel) and made their new home in the West Bank, at a site where the settlement of Kfar Adumim was later established. They were driven out again and took up residence at their current location, some two kilometers south of the settlement. The community consists of 32 families that make up a total of 173 residents, 92 of them minors. In addition to homes, the community has a mosque and a school that serves more than 150 children between the ages of six and fifteen, about half of them from neighboring Palestinian communities.

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 have made the lives of the residents intolerable, hoping to make them leave their homes, ostensibly of their own volition: the authorities refuse to hook them up to electricity or a sewage system, refuse to pave roads for them, prevent construction of homes or structures for public use in the community, and have restricted their pastureland. This policy forces the residents to live in unbearable conditions, suffering a severe dearth of services in health, education and welfare.

Khan al-Ahmar
Khan al-Ahmar. Photo by Rima Essa, B'Tselem, 29 May 2018

Khan al-Ahmar residents filed several petitions to Israel’s High Court of Justice against their being transferred. At the same time, Israelis 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 community. 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 orders 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” – regarding execution of the demolition orders and the alternative offered to the community. The justices answered in the negative, finding that there is no “legal cause to interfere in the defense minister’s decision to implement the demolition orders.”

Khan al-Ahmar
Khan al-Ahmar. Photo by Rima Essa, B'Tselem, 29 May 2018

In so ruling, the justices chose to confine their role to handling mere bureaucratic issues, yet that is not why they were appointed to the Supreme Court. Choosing this technical approach enabled them to ignore the context of Israel’s longstanding policy vis-à-vis the people living in Palestinian communities in the West Bank and set aside the directives of international humanitarian law (IHL). Yet this judicial formalism only thinly veils the 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 indeed 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 denies them approval for building permits. As a result, they were forced to build without permits and, as no community remains unchanged and fossilized, they have had to continue developing and building in this way. Only then did the planning authorities step into action, issuing demolition orders. Far from acting in good faith, the Israeli authorities have made cynical, violent use of formalistic manipulations. If the community has no way to build legally, what meaning can there be to ruling that their construction is illegal?

In the ruling, Justice Sohlberg stated that “along the way, various possibilities for an alternative solution – including the Hasmonean Palaces, Ramat Nu’eimah and Nabi Musa – were examined, whether suggested by the state or by the petitioners.” He added that both the state and the court enabled the petitioners to come up with concrete, feasible alternatives and that therefore “the state’s conduct in handling the matter – resulting, as mentioned, in lengthy postponement of the demolition – was objective, and we find no fault with it.” In fact, the opposite is true: The state has always evaded its responsibilities in terms of planning for the residents of these communities, and has consistently refused to draw up any outline plans for them. 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 – although this is not their responsibility to shoulder – 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.

Khan al-Ahmar
Khan al-Ahmar. Photo by Rima Essa, B'Tselem, 29 May 2018

2. The state’s alternative is inadequate and inappropriate

Justice Sohlberg praised the state for the solution it is offering the residents: “The state has gone to considerable lengths to develop the area of West Jahalin at its own expense, developing the neighborhood, infrastructure and the actual lots, which are being offered to the residents free of charge.” While Justice Sohlberg voiced sympathy for the plight of the residents, he emphasized 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 that 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. This is par for the course in the West Bank, where Palestinian residents have no say in the various planning committees employed by the state to serve its own interests. The proposed 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, it does not enable the residents to continue working as shepherds, and the state said so plainly in its response to the petition: “The policy of the planning institutions in the area is to bolster the Jahalin neighborhood and create a strong and sustainable community in a contiguous urban bloc.” The state added that the neighborhood’s proximity to other Palestinian communities and Israeli settlements in the area will “provide job opportunities” for the residents.

Moreover, the state made it clear that the residents will be able to continue grazing their flocks beyond the confines of the neighborhood, while noting that “the neighborhood is indeed planned in an urban environment and 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 on the court not interfering 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. IHL provisions bind Israel in all its actions in the Occupied Territories.

Unlike many other violations carried out by Israel in the territories it occupied, in this case 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”.

Again, reality shows otherwise: This is not a trivial or insignificant violation of IHL, but a breach that constitutes a war crime. The provisions of IHL 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 land for the purpose of future expansion of settlements in the area or for any such similar purpose. The prohibition on forcible transfer applies not only to the use of physical force, but also to compelling people to leave their homes against their will, or as a result of pressure exerted upon them or upon their families. Forcible transfer is a war crime and all those involved in authorizing and executing it bear personal liability for its commission.

In their ruling on Khan al-Ahmar, the justices of the Supreme Court removed the last stumbling block in Israel’s way in this matter, lifting the impediment which had thus far served to defer the transfer of the community. The state now faces no obstacles to carrying out its plan to transfer the community. The justices neither thought up this policy nor proposed it. The full credit for that is due to Israel’s leadership: Transferring the community of Khan al-Ahmar is part of Israel’s longstanding policy in the Occupied Territories. As a rule, Israel treats most of the West Bank as though it is meant to serve Israeli interests only, and goes to considerable lengths to minimize the presence of Palestinians there.

Yet, as in many other cases, here, too, the justices pitched in and paved the road to the execution of an unlawful policy. Over the years, the Supreme Court has sanctioned almost every violation of Palestinians’ rights brought before it: demolition of homes, administrative detention, torture, restrictions on freedom of movement and denial of the right to compensation for injury caused by Israeli security forces. This ruling is but the latest addition to this list, this time paving the state’s way to committing a war crime. Personal liability for the commission of this crime will be not only that of policy-makers but also of those who paved the juridical route enabling it.

Khan al-Ahmar
Khan al-Ahmar. Photo by Rima Essa, B'Tselem, 29 May 2018