Supreme Court rules: Israel above the law

On 4 May 2022, the eve of Israel’s 74th Independence Day, the Supreme Court delivered its judgment on the state’s plan to expel some 1,000 Palestinians from their homes in the South Hebron Hills in the West Bank.

Residents of some Palestinian communities in the area first filed petitions 22 years ago, shortly after Israel expelled the 700 people residing in the area at the time on the grounds they were living within a “firing zone”. The court issued an interim injunction permitting the petitioners to return to their homes. In 2012, the petitions were struck out and new ones were immediately filed. Again, the court issued an interim injunction permitting the residents to remain in their homes until a judgment was handed down.

Now, 22 years after Israel first tried to drive these communities off their land, Supreme Court Justices David Mintz, Isaac Amit and Ofer Grosskopf dismissed the petitions. The court ruled that the military commander has both the power to declare a firing zone in the area, so new recruits can train there, and the power to force out anyone who is not a permanent resident.

In handing down this judgment, the court permitted the state to commit a war crime.

What does the judgment say?

Justice Mintz, who wrote the principal opinion, held that the petitions should be dismissed in limine. One reason, he explained, was that they were filed very late, years after the military commander declared the area closed. The other was “bad faith” on the part of the petitioners, who continued to build homes throughout the litigation thanks to the interim injunctions the court had issued, even though this construction was “unlawful and permit-less, given the lack of planning feasibility inside a Firing Zone.” Justice Mintz added that “[t]aking the law into one’s own hands and seeking equitable relief are incompatible.”

Although the court could have made do with dismissing the petitions on these preliminary grounds, Justice Mintz chose to address the merits as well. On the issue of the Military Commander’s powers, Justice Mintz held the matter was not up for debate as “the Military Commander is competent to declare closed zones and prohibit entry into them without a permit.” This power is enshrined in the local law applicable in the West Bank – both in the Defence (Emergency) Regulations enacted by the British Mandate in 1945 and in the Order regarding Security Provisions issued by the military. According to Justice Mintz, “[t]his is a broad power designed to serve military-security interests, including the assignment of training grounds for the purpose of training combatants and maintaining their fitness.”

Justice Mintz devoted only two short paragraphs to international law. He held that the power of the military commander to declare an area closed does not contravene the provisions of international law. Even if it did, this would be inconsequential as “there is no dispute that when an express provision of Israeli law is at odds with international law, Israeli law supersedes.” The justice also asserted that expelling residents from their homes does not violate Article 49(1) of the Fourth Geneva Convention, which prohibits the forcible transfer of protected persons from occupied territory, citing two reasons: first, that the article is “a treaty law provision” that does not obligate the state; and second, that “this provision, which is designed to prevent mass expulsions in an occupied territory for purposes of extermination, forced labor or for various political ends, has nothing whatsoever to do with the case at hand.”

After finding the declaration of the firing zone lawful, the court addressed the factual question of “whether the petitioners resided in the firing zone on a permanent basis prior to its declaration.” This is important, as the Order regarding Security Provisions – pursuant to which the area was declared closed – “qualifies removal from a closed zone with respect to ‘permanent residents’ therein.” The justice devoted the lion’s share of the judgment to this question, which he answered in the negative.

First, Justice Mintz examined aerial photographs submitted to the court by both the petitioners and the state. Despite noting that “there is no dispute that the interpretation of aerial photographs is a matter of expertise,” he went on to assert that “a review of the aerial photographs […] reveals, even to the unprofessional, untrained, layman’s eye” that the truth lies with the state: “This is a significant cache of aerial photographs that reveals a clear, unquestionable situation.” According to Justice Mintz, “no signs of habitation can be observed in the area prior to 1980, certainly not permanent habitation in the entire area.” In contrast, he held, the photographs show “a construction boom” throughout the 1990s and especially since 2000.

Justice Mintz then examined further evidence presented to the court, relying heavily on reports of “the Enforcement Unit and other officials.” Citing several reports by Enforcement Unit officers concerning “various invaders and construction,” he concluded that “the respondents did provide a clear evidentiary picture whereby there was no permanent habitation prior to the declaration.”

Justice Mintz dismissed two expert opinions submitted by the petitioners, arguing that the report by anthropologist Shuli Hartman was based on “an impression” rather than on hard facts, and that regarding the report by Prof. Gideon Kressel, “[i]t is difficult to describe this opinion as convincing.”

He devoted two entire paragraphs – slightly longer than his discussion of international law – to Life in the South Hebron Caves, a book by Yaacov Havakook which both parties cited to bolster their arguments. Justice Mintz concluded that “the pages cited by the respondents are more relevant,” and that the book does not indicate permanent habitation in the area prior to the declaration of the firing zone in 1980.

Justice Mintz accordingly held the petitions should be dismissed, adding that “the issue of the need for the declaration was once again raised during the hearing before us, when Respondents notified the Court that a current review revealed the Firing Zone was, in fact, essential for military and security needs.” To conclude, he added that the state had proposed the petitioners be allowed to access the firing zone “for agricultural and grazing purposes” on weekends and Jewish holidays, as well as for two months a year. According to Justice Mintz, this proved that “the Respondents certainly have taken the needs of the farmers in the area into account and, in no small measure, beyond legal requirement.”

In a short opinion, Justice Amit concurred with Justice Mintz and his finding that the petitioners did not live permanently in the area before it was declared a firing zone. Justice Amit stated that “genuine attempts to reach an arrangement that would reduce the harm to Petitioners’ livelihoods have been made repeatedly,” yet the petitioners rejected them all. “[O]ne wonders,” he mused, “whether the Petitioners are guided by practical considerations aimed at minimizing the damage or by an ‘all or nothing’ approach” – since the petitioners continued to build homes over the years. Justice Amit added that “inasmuch as the Petitioners seek to advance their agricultural-economic-cultural interests, they would do wisely to choose the path of dialogue with the Respondents.”

Justice Grosskopf concurred with his colleagues, remarking only that “the path of practical compromise was preferable to a judicial decision.” He added that before resuming military training in the area, the authorities “will, presumably, consider all alternatives through the prism of military needs and take into account the needs and interests of the civilian population claiming title.”

Lies, misrepresentation and errors in the judgment

1. Ignoring the true purpose of the declaration: Cementing Jewish control over the area

Justice Mintz did not question the state’s claim that the firing zone was declared solely to enable military training, and brushed off the petitioners’ arguments that other motives were at play. However, an examination of Israel’s longstanding policy in the area along with the evidence provided to the court indicates that Israel is trying to take over land in the area, bring it under Jewish control and use it for its own purposes.

The true reason for declaring a firing zone in that particular area was explicitly articulated in a meeting of the Joint Government WZO Settlement Committee on 12 July 1981, chaired by Ariel Sharon, who was minister of agriculture at the time. According to a transcript of the meeting (in Hebrew), Sharon instructed the military to close off land in the South Hebron Hills for training, saying:

We want to offer you more training zones. We’re thinking that more training zones should be closed off along the border, where the South Hebron Hills drop into the Judean Desert. Because of the phenomenon I explained earlier – Arab villagers spreading from the hills towards the desert. We are definitely interested in expanding the zones there and that could add many training zones for you. We are very interested in you being there.

The transcript was submitted to the court (in Hebrew), yet Justice Mintz only commented that it did not do “anything to alter the aforesaid conclusion, given, in part, the generality of the statements and their lack of clear context […] Nor,” he added in his conclusion, “have I found merit in the Petitioners’ general arguments about extraneous considerations underlying the declaration or the doubt they set out to cast on the degree to which this particular firing zone is needed.” He provided no explanation for this conclusion.

Justice Mintz also ignored the efforts Israel has invested for many years in creating Jewish-Israeli contiguity on either side of the Green Line in this particular area. All settlement plans in the West Bank that guided Israeli governments over the years point to Israel’s intention to annex parts of the South Hebron Hills. This goal was clearly stipulated in a plan formulated by the WZO Settlement Division to create a "buffer zone" in the area, separating Palestinian villages there from the Bedouin population in the Arad and Beersheva valleys within Israel proper. When Israel and the Palestinians negotiated a permanent agreement at Camp David in July 2000, then-Prime Minister Ehud Barak proposed that Israel annex 13% of the West Bank and retain another 10% for many years. Parts of the South Hebron Hills, including the area declared a firing zone, were among the territories Israel proposed to retain.

Israel uses two strategies to pursue this end, one of which is bolstering settlements in the area – official and otherwise – in order to create continuous Jewish presence from northeast to southwest: starting with Carmel, through the Issachar Mann farm, Ma’on and Havat Ma’on, and ending with Avigayil and Susiya. That is why the firing zone does not include settlements, and why settlements established along its boundaries are left to expand into it, while the state refrains from enforcing demolition orders against these structures.

The second strategy involves attempts to drive Palestinians out of the area, including by making their lives so unbearable that they leave ostensibly by choice. That is why their homes and land have been declared a firing zone, all construction is banned, and Israel refuses to connect them to water, electricity and road services. Violence by settlers – fully backed by the state and sometimes joined by soldiers – is another way to make the lives of Palestinians in the area miserable and push them to leave.

Yochai Damri, the head of the Hebron Hills Council, which represents settlements in the area, made it clear in his response (in Hebrew) to the judgment that military training is not the real issue at stake. Damri said that the court’s decision to allow the expulsion of Palestinians is "in favor of the settlement enterprise, in favor of state land, in favor of the battle for Area C that we are so heavily involved in... I welcome that. That is how to really fight for our country’s land."

2. Dismissing international law

The petitioners cited (in Hebrew) the relevant provisions of international law, elaborating on the duties of the military commander towards the Palestinian population, the prohibition on expelling residents of an occupied territory, the restrictions that apply to the occupying power regarding use of land in occupied territory, and the human rights that were violated by declaring the firing zone. The petitioners also attached two expert opinions by jurists who specialize in international law, clarifying these points. In its response to the petition (in Hebrew), the state addressed these arguments extensively, explaining why the declaration was legal under international law. Some of these points were also discussed during court hearings.

Justice Mintz, however, held that the provisions of international law were entirely irrelevant to the case. In his opinion, the fact that the military law applicable in the West Bank empowers the military commander to close off areas is enough. The notion that an occupying power is limited only by its own laws flies in the face of international law and contradicts both Israeli law and the jurisprudence of the Supreme Court itself.

The position espoused in the judgment, that Israel alone may determine what it can and cannot do in the Occupied Territories, is obsolete. States are no longer required to decide whether to abide by international law. That is the whole point of international law: to establish rules that bind all states and limit their discretion and freedom to act both within their sovereign territory and in other territories under their control, based on the understanding that this is the only way to ensure minimal protection of human rights.

Contrary to the court’s judgment, international law, which is incumbent on Israel in its actions in the Occupied Territories, does restrict the state’s use of land there. Under the laws of occupation, the occupying power is not the sovereign in the territory, but acts as a trustee. Therefore, it cannot use the land as it pleases, but only for the benefit of the local population or to serve a military purpose that is both temporary and meets a direct, pressing need of the occupying army – rather than the general security needs of the occupying power.

In its response to the petition (in Hebrew), the state claimed an “essential military need” to train in the area in order to “build up the military force, i.e., instruct and train combatants, maintain operational fitness and test weapons.” The state added that the proximity to the Nahal Brigade training base saves considerable time – “the most valuable resource when it comes to IDF training” – and money – “given the high cost of transporting hundreds of fighters, equipment and vehicles to train in a distant firing zone.”

In other words, the military does not require use of the area for an urgent need, but rather to save time and money. These considerations are irrelevant under international law and cannot justify declaring a firing zone within occupied territory. The fact that Israel’s military legislation allows this is immaterial.

Justice Mintz also held that the state is not violating Article 49(1) of the Fourth Geneva Convention, which he believes is irrelevant to the case and in any event, does not bind Israel. This position is baseless and far-removed from accepted legal interpretation. First, the article is part of customary law. The International Committee of the Red Cross (ICRC), which is the authority on interpreting International Humanitarian Law – including the Fourth Geneva Convention – published a study determining which provisions of this law are customary, and included Article 49.

Second, Justice Mintz's assertion about the circumstances the article supposedly addresses have no mention either in the wording of the article itself or in its accepted interpretation, making the basis for his finding unclear. The article clearly prohibits any expulsion, for any purpose: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” International courts have clarified that this prohibition is not limited to the physical expulsion of residents from occupied territory, but refers also to creating harsh living conditions in order to push residents to leave their homes and lands, ostensibly of their own free will.

3. Discounting the facts

The judgment implies there is an actual debate as to whether the petitioners – and other local Palestinian residents who did not join the case – indeed live within the firing zone. Yet the matter is undisputed: the existence of Palestinian communities in the area is backed by ample, unequivocal and incontrovertible evidence.

Contrary to the state's claims, which the court accepted verbatim, the residents did not “invade” the area after Israel declared it a firing zone, nor are they trying to take it over by “establishing facts on the ground.” They have lived on the land for generations. Documents, affidavits, testimonies and opinions submitted to the court all prove that Palestinian communities were living in the area before Israel occupied it.

Records of shepherds leaving the town of Yatta and its environs and establishing villages in the South Hebron Hills date as far back as the early 19th century. The practice was seasonal at first: the shepherds would bring flocks to graze in the area and return to town in summer. Over time, the population grew, and more land was needed. Since the cost of land in Yatta was prohibitive, poorer families gradually took up permanent residence in the shepherding villages, setting up home in and around caves nearby. To this day, shepherds and farmers live in these dwellings and use the farmland and pastureland they inherited.

Justice Mintz ruled that the aerial photographs provide “clear, unquestionable” proof that “no signs of habitation can be observed in the area prior to 1980, certainly not permanent habitation in the entire area.” This is absurd. Aerial photographs submitted to the court by both the petitioners and the state prove the existence of villages in the area for decades, before Israel occupied it. They show residential clusters on the same sites for years, with livestock pens and cultivated land nearby. In an expert opinion, submitted to the court by Bimkom – Planners for Planning Rights, architect and urban planner Alon Cohen analyzed aerial photographs of the Masafer Yatta area from 1945 to 2014, and concluded:

An analysis of aerial photographs obtained by Bimkom spanning a long period of time, especially between the years 1945 and 2014, shows continuous presence of human activity in all the communities, including intensive farming, sheep breeding and dwelling on site for most of the year. The use of livestock pens, clearly evident in markings of circular and square fences, persisted for many decades and is identifiable from 1945 to the present day. Most of the living spaces were caves that provided shelter from the weather and a sense of safety for residents in this area. In some cases, caves were enlarged and new ones were hewn. The shift to life on the surface began gradually. In Jenbah, Markez and Halawah in particular, it is apparent that structures were built on the surface as early as the 1940s. In other cases, such as in a-Rakeez, Sarurah and Mufaqarah, small rooms were built next to the stone fences that allowed for a slightly more comfortable life than inside the caves. Over the years, technological advancement made it simpler to build light structures on the surface than to repair damage caused to the caves by the weather.

The expert opinion also stated that after Israel occupied the West Bank, the residents’ lives became much harder, but “despite the expulsion attempts, constant threats and the demolition of homes and water cisterns, and despite the discriminatory planning policy, which, coupled with abusive treatment, has established new and clearly illegal settlements in their living area and on their land, most of these communities managed to survive and sustain the lifestyle of a shepherding community that works the land and continues to face difficulties.”

Justice Mintz threw most of his weight behind a handful of reports by officers from the Enforcement Unit, which stated they had acted “to eradicate and remove various invaders" – all in the years after the firing zone was declared. These reports do not prove the residents are "invaders." Quite the contrary: they show that these are people whose home was suddenly turned into a firing zone, yet they had nowhere else to go.

Justice Mintz criticized the petitioners for continuing to build structures after the petition was filed and the interim injunctions issued. Accusing them of “bad faith,” he stated: “The Petitioners’ argument that life in the area cannot be expected to ‘grind to a halt,’ or in the words used by counsel for the Petitioners at the hearing before us, ‘life is stronger than any interim injunction,’ is nothing short of outrageous.”

Yet it is the court’s refusal to acknowledge reality that is outrageous. The residents continue to build structures not because they are criminals trying to “establish facts on the ground,” but because they have no other home, no other land, and no other life. They have lived there for decades, sustaining community life, grazing sheep and working the land. It is the only home they know. When the population grew and the caves could no longer meet their needs, they had to build new homes – without permits, as Israel refuses to issue them permits to build legally.

All three judges criticized the petitioners for rejecting the state's proposed "compromise." Yet understanding the reality described above makes it clear these proposals are as baseless as the criticism that followed suit. How can a person give up his or her home and source of livelihood? The state proposed to allow residents intermittent access, as a favor, to the place where they were born and raised, the place that is their home. That is where they run their daily lives, raise children, graze flocks and cultivate land. It is a way of life that cannot be managed sporadically, as the state suggested. Where will they live when they are not at home? How will they graze their flocks? How will they maintain their community life? The state did not offer a “compromise.” It proposed to effectively wipe out life as they know it, drive them out of their homes and destroy their communities.

The court permitted the state to commit a war crime

The highest court in Israel has allowed the state to commit a war crime. The justices relied on a warped legal interpretation and blatantly disregarded the facts presented before them. They ignored Israel's true agenda in the area and disregarded the provisions of international law and their internationally accepted interpretation. Above all, they ignored the petitioners.

The justices of the Supreme Court refused to truly see the people standing before them. Instead, they created an inverted reality in which one of the most powerful armies in the world and a rich first-world country have fallen prey to several hundred poor, hard-working farmers and shepherds who “invaded” land and “established facts on the ground.” It is these dangerous criminals who must be expelled lest young military recruits travel too far for training, wasting precious time and money. Instead of seeing these residents as persons whose rights must be protected, the court chose to portray them as a genuine threat – in order to excuse the crime of expelling them upheld in its judgment.

The very notion of requiring these residents to prove they live in their homes is unfounded and degrading. For generations, long before Israel occupied the West Bank, these communities have been living on this land, earning their keep off it and raising their children. With the stroke of a pen, the court erased their entire history, as though they were not human beings, ruling that none of this ever existed and therefore the state can expel them.

Trappings aside, it is plain to see what really happened here. This was not a legal discussion. The justices of the Supreme Court are surely well-versed in international law and familiar with its accepted interpretations – certainly when it comes to fundamental issues presented to them in great detail. Nevertheless, they chose, yet again, to serve the apartheid regime. This time, they found a way to sanction the transfer of land from Palestinian residents to Jewish hands. By doing so, the court facilitated the regime’s promotion of Jewish supremacy in yet another parcel of land, in keeping with the view that the entire area between the Jordan River and the Mediterranean Sea is a resource meant to benefit Jews alone.

The highest court in Israel clearly laid out the state’s view of its power in the West Bank: Israel will not kowtow to international law or administrative law, nor will it bend to the rules of justice and morality. The power to determine what the state cannot – and especially what it can – do lies solely with the military commander, who decides what is just and right in keeping with Israel's needs and considerations alone. That is an accurate portrayal of how Israel operates in the Occupied Territories. Although the Supreme Court almost always backs the state, it usually camouflages under layers of verbiage about customary international law, proportionality and necessary balances, "military needs" and the limits of judicial interference in authorities’ discretion. This time, the judges chose to tear off the masks, did away with convoluted wording and made the court’s true views clear.

The justices of the Supreme Court have allowed Israel to commit a war crime. If it is carried out, they too will bear liability, as forcibly transferring residents of an occupied territory – within or outside it – constitutes a grave violation of international humanitarian law and is defined as a crime in the Rome Statute of the International Criminal Court (ICC). The ICC prosecutor is currently conducting an investigation against Israel. According to the statute, no intent to expel is required; knowledge that this is an expected outcome is enough. The justices know full well that the expected outcome of their decision is the expulsion of these residents. Therefore, their responsibility for the commission of this crime is no longer theoretical. They have not only allowed others to commit a crime: they are complicit in it.