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

27 May 2018

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.

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מבנה בית הספר בעין סאמיה. צילום: עבדאללה אבו רחמה.

Communities Facing Expulsion

New school for children of ‘Ein Samia community under imminent threat of demolition

The 'Ein Samia community, which lies east of the village of Kafr Malik in Ramallah District, is home to 28 families, numbering a total of about 200 people. Since the community was established in 1977, its residents have been living under the threat of expulsion and suffering violence by settlers and Israeli security forces. Since settlers established the outpost of Micha's Farm about three years ago, the violence has increased, affecting not only the community but also the residents of al-Mughayir, Kafr Malik, and other area communities. There are about 40 school-age children in ‘Ein Samia. Until 2013, children from the community had to walk several kilometers a day to school in Kafr Malik. That year, the Palestinian Ministry of Education started funding a school bus. In 2020, the ministry approved the establishment of a new school within the area of the community, funded by the European Union, at the residents’ request. The construction work was delayed due to the coronavirus pandemic and only began on 15 January 2022. Prefabricated structures made of galvanized sheet metal were placed on a 500-square-meter concrete surface, forming four classrooms and two bathrooms. The Badayat ‘Ein Samia Co-Ed Elementary School opened this January. As it was the middle of the school year, only seven students enrolled while the others completed the year in Kafr Malik and are supposed to enroll this September. Once the construction began, the Civil Administration verbally notified the residents of its intention to immediately demolish the school. The residents appealed to Israel’s High Court to prevent the demolition, but their request was denied. On 28 April 2022, the Civil Administration delivered a stop work and demolition order for the school. The residents appealed the order to the district court, but their petition was rejected on 10 August 2022. On 14 August 2022, another petition was filed against the authorities’ refusal to freeze the demolition order until a decision was made on a building plan the residents had submitted earlier. On 30 October 2022, the Jerusalem District Court dismissed the residents' petition to freeze the demolition order, which the authorities might now carry out as of 31 December 2022. Demolishing educational facilities is one of the means Israel uses to try and drive Palestinian communities out of their homes, so it can concentrate the residents in enclaves and use the territory for its own needs. The school at ‘Ein Samia is one of 44 schools in the West Bank currently under threat of demolition, according to UN figures, eight of which are located in East Jerusalem. About 4,800 students attend these schools.

5 September 2022

תושב ח'ירבת חומסה אל-פוקה עומד בתוך רכוש הקהילה שכוחות ישראליים השליכו ליד עין א-שיבלי. צילום: אורן זיו, אקטיבסטילס, 7.7.21

Communities Facing Expulsion

Court sanctioned war crime committed in broad daylight

Yesterday, Israel committed an attempted forcible transfer – a war crime – against residents of Humsah. In a break from the previous five demolitions in the community within less than a year, yesterday, Israeli soldiers and Civil Administration staff removed the contents of some residents’ homes and transported the items to an area located near ‘Ein Shibli, where Israel has been trying to forcibly relocate residents. Israel misrepresented these actions as being part of dialog and consent, proving, if anyone still entertained any doubts, it is intent on expelling these residents from their homes permanently. The military’s response, as it appeared in the media, highlighted the fact that the attempted expulsion was carried out with the approval of Israel’s High Court of Justice. Indeed, when the ICC looks into forcible transfers as part of its investigation of Israel, it will have to assess the responsibility of justices as well as ministers and top military commanders. On Wednesday, at around 8:00 A.M., soldiers and Civil Administration staff arrived at the community of Khirbet Humsah in the northern Jordan Valley. The forces declared the area a closed military zone and denied journalists, human rights activists and diplomats access. The forces dismantled nine tents and four huts used as residences, as well as 17 agricultural structures, all together belonging to nine families with a total of 61 members, including 34 minors. The forces also destroyed four water tanks, water lines, fencing and farming equipment. The residents’ belongings were loaded onto trucks that transported them to the ‘Ein Shibli community, which lies west of Khirbet Humsah. Community members fled to the mountains with their flocks, leaving the buses brought in to forcibly relocate them to ‘Ein Shibli empty.

9 July 2021

ההריסה בח'ירבת חומסה. צילום: עארף דראר'מה, 7.7.21

Communities Facing Expulsion

Trucks load personal belongings; buses arrive for residents: Israel carries out massive demolition at Humsah for the sixth time in less than a year

This morning, Wednesday, July 7, 2021, Israeli military and Civil Administration personnel arrived at the tent-dwelling community of Khirbet Humsah in the Jordan Valley. According to early reports, the forces have dismantled and confiscated tents housing numerous community members along with everything inside them, loading them onto trucks well into the evening. Buses also arrived at the scene to remove residents who were left without shelter in the sweltering heat. The residents, who refuse to leave, fear they will be expelled by force during the night. Initial reports indicate the forces demolished the homes of at least nine families, leaving 60 people homeless. Soldiers and Civil Administration staff continue to load the contents of the homes onto military trucks at this time. B’Tselem is still collecting exact information about the property that was confiscated and destroyed. What is clear at this moment, however, is that Israel’s attempt to pass its persecution of the community in a bid to forcibly remove it and take over the land as something community members have consented to must be wholly rejected. House demolitions in this community are part of the policy Israel employs throughout the West Bank in an effort to create unbearable living conditions with the ultimate aim of pushing Palestinians to leave their homes, concentrating them in enclaves and taking over their lands. This policy is an attempted forcible transfer of the residents - a war crime under international humanitarian law. The responsibility for this policy lies primarily with the government, which directs it, the top military command, which implements it, and the justices of the Supreme Court, who lend it legal legitimacy. Israel’s actions are also a badge of shame for the international community, which has absolved itself of the obligation to demand Israel respect the human rights of Palestinians living under its control and allowed itself to be satisfied with empty rebukes lacking any practical consequences.

7 July 2021