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Fake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition of Palestinian Homes and the Dispossession of Palestinians

A new B’Tselem report released today (6 February) shows how the justices of Israel’s Supreme Court have validated the state’s planning apparatus in the West Bank, enabling it to continue implementing illegal policies. Time and time again, the justices have ignored the fact that the planning apparatus imposes an almost blanket prohibition on Palestinian construction with the object of enabling Israel to take over as much Palestinian land as possible. The report, Fake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition of Palestinian Homes and the Dispossession of Palestinians, is based on a careful examination of hundreds of High Court cases, judgments and decisions regarding the demolition of Palestinian homes in the West Bank. In none of these cases did the justices accept the arguments of the Palestinian petitioners.

The planning apparatus Israel has instituted in the West Bank endeavors to minimize Palestinian construction, while at the same time striving to expand construction in settlements (illegally established to begin with) and take over as much land as possible. In October 2018, at a session of the Knesset Foreign Affairs and Defense Subcommittee Brig.-Gen. Ben-Hur Achvat, Head of the Civil Administration, conceded that there is “currently no planning for Palestinians due to instructions from government officials.” This policy is clearly borne out by Civil Administration figures going back years, not just “currently”; from January 2000 to mid-2016, only about 4% of Palestinian applications for building permits were approved. When, faced with no other option, Palestinians are forced to build without permits, the structures are deemed “unlawful” and Israel issues demolition orders. According to the Civil Administration, 16,796 demolition orders were issued for Palestinian structures from 1988 to 2017. Since 2009, the Civil Administration has issued an average of 1,000 demolition orders annually. About 20% of these orders were implemented. According to B’Tselem figures, from 2006 through 2018, Israel demolished at least 1,401 Palestinian residential units in the West Bank (not including East Jerusalem), causing at least 6,207 people – including at least 3,134 minors – to lose their homes.

Over the years, Palestinians have filed hundreds of petitions with Israel’s High Court of Justice (HCJ), seeking to overturn demolition orders issued by the Civil Administration. The justices have consistently adopted the state’s position that the cases were simply a matter of law enforcement, ignoring the predictable, severe violation of the rights of hundreds of thousands of people, including their ability to subsist, make a living and manage their own routine. They also disregarded the fact that Israeli policy constitutes a breach of international law.

The justices have rejected every single argument of principle they heard regarding Israel’s planning policy. To the best of B’Tselem’s knowledge, there has not been a single case in which the justices granted a petition Palestinians filed against the demolition of their home. The new report describes the state’s arguments, explains why they have no merit and are completely detached from reality, and demonstrates that, nevertheless, the justices have adopted the state’s arguments to the letter:

  • HCJ justices have ruled that changing the Jordanian Planning Law and replacing it with a military order were lawful actions, ignoring the provisions of international law which prohibit this type of change. The justices also ignored Israel’s use of this unlawful military order to remove Palestinians from all planning committees and take over full control of the planning apparatus.
  • The HCJ justices have seen no flaw with declaring vast areas in the West Bank as “state land” and allocating them exclusively to settlers. Nor have they seen any flaw in declaring as “military training zones” areas where Palestinians live. They have rejected all arguments raised regarding the illegality of these proceedings under both international and Israeli law, refusing to even address some of the arguments, and upheld the demolitions.
  • The HCJ justices have accepted the contention that plans for the Palestinian population are reasonable and meet their needs, despite evidence to the contrary and despite the fact that these plans are based on outline plans prepared some eighty years ago or on the so-called “outline plans” by the Civil Administration that do no more than demarcate the boundaries of existing communities.
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Family members next to the contents of their demolished home in Fasayil al-Wasta. Photo by 'Aref Dagharmeh, B'Tselem, 16 Jan. 20

The justices have validated Israeli policy not only explicitly, but implicitly as well. In their rulings on construction in Palestinian communities, they have included citations of rulings that dealt with planning for settlements or within Israel proper, and vice versa. Referring to them interchangeably obliterates the differences between the different systems, which are underpinned by different values and are designed to serve opposite purposes. In so doing, the HCJ justices have lent a guise of fairness, validity and lawfulness to an illegitimate system of organized dispossession and oppression. The justices of the High Court have even tried to show that Israel’s policy is compliant with international humanitarian law (IHL), primarily by selectively citing IHL provisions. Particularly blatant is the justices’ disregard of the fact that implementation of the Israeli planning policy involves violating the absolute prohibition on forcible transfer, which applies also to cases of people leaving their homes not of their own choosing, for instance, if the authorities have made living conditions unbearable. Violation of this prohibition is a war crime. Therefore, the justices of the Supreme Court – along with the prime minister, senior ministers, the chief of staff and other senior military officers – bear personal liability for the commission of such crimes.

Israel maintains a so-called planning apparatus for Palestinians so that it may argue that its policy meets the requirements of international and Israeli law. Israel uses this façade to claim that Palestinians choose to build “illegally,” as if they have any other choice, and to justify the demolition of their homes. The justices of the Supreme Court, sitting as the highest judicial instance overseeing this issue play a pivotal role in creating this façade. While the Court does not write the laws, make the policy or implement it, it does play a crucial role in protecting human rights. When the state implements a policy that systematically abuses the basic human rights of thousands of people who have no representation, it is the justices who have both the authority and the duty to find the policy unlawful and prohibit its implementation. Instead, time and time again, the justices choose to grant it a legal seal of approval and validation. In so doing, not only do the Supreme Court justices fail to discharge their duties, they also play a pivotal role in further cementing the occupation and settlement enterprise, and in further dispossessing Palestinians of their land.