In early September 2018, after years of legal proceedings, the justices of Israel’s High Court determined there was no legal obstacle to demolishing the structures in the community of al-Khan al-Ahmar, located about two kilometers south of the Jerusalem-choking Kfar Adumim settler colony. The Court delivered that conclusion as the Palestinians’ construction in their village was “unlawful.”
The ruling’s determination that the destruction of the community is no more than an issue of “law enforcement” reflects how Israel has framed its policy against Palestinian construction in historic Palestine. Israeli authorities characterize the destruction of consider Palestinian homes as no more than a matter of illegal construction, as if that perception were somehow apart from Israel’s long-term goal of negating Palestinians’ presence in their own land and country. From the purposeful material discrimination institutionalized in Israel’s “national institutions”; Israel’s military doctrine of targeting Palestinian homes, shelters and shelter seekers; to preventing refugees their right to reparations, including return; to the ongoing ethnic cleansing of the Naqab region; to the legislative assumption of the new “Basic Law: Jewish Nation-State,” Israeli civil and military justice systems consistently trample the individual and collective human rights of millions of individuals, depriving the indigenous people its own means of subsistence.
The Israeli High Court has embodied this ideological persuasion. In hundreds of rulings and decisions handed down over the years to demolish Palestinian homes, the justices have regarded Israeli planning policy as lawful and legitimate, nearly always relying only on the administrative and technical matter of whether the Palestinian petitioners held Israeli building permits. Time and time again, the justices have ignored the discriminatory and acquisitive intent underlying the Israeli policy and the fact that, in practice, this policy imposes a virtually blanket prohibition on Palestinian construction and habitation.
The judges also have ignored the consequences of the State of Israel’s land, housing and planning policies for Palestinians; i.e., violating their human right to adequate housing as individuals and cumulatively denying the Palestinian people’s self-determination. Committing population transfer, demographic manipulation and denial of self-determination breach peremptory norms of international law that, among others, are not justified in any circumstances.
The justices of Israel’s highest court also have turned a blind eye to the often-squalid living conditions created for the indigenous Palestinians in their own land, compelling them to build homes without permits within a state not of and for its citizens.
Recently, the Israeli human rights organization B‘Tselemhas published a new report, Fake Justice, focusing on the responsibility that Israel’s High Court justices bear for the administrative demolition of Palestinian homes and the dispossession of Palestinian individuals and communities of their land. This report specializes in the administrative-justice pattern in the 1967-invaded and still-occupied West Bank. B’Tselem has addressed individual High Court rulings in the past, but this is the first time it has devoted an entire report to the Court’s role in validating these practice of Israel’s prolonged occupation prohibited in international law.
The report cites the High Court’s foundational flaw in ruling Israel’s changes in the original Jordanian Planning Law since 1967 as “legal.” That ruling actually contradicts The Hague Regulations’ prohibition against an occupying power altering the legal system in an invaded/occupied territory (Article 43). It also clashes with the High Court’s rulings that The Hague Regulations (1907) are integral to Israel’s domestic law.
The B’Tselem report notes the thousands of decisions and rulings in which the High Court justices have referred to a planning regime that does not exist. Under this imaginary system, anyone—including Palestinians—could file for a building permit, have their application carefully considered and then granted or dismissed on its merits. Electing to rely on this fiction, the justices have denied hundreds of petitions, treated Palestinian petitioners categorically as “lawbreakers” (or, in the Naqab example, “trespassers”—HLRN), and showed umbrage at Palestinians “taking the law into their own hands” by building homes without Israeli permits in the occupied West Bank.
B’Tselem points out that the reality on the ground is completely different. The actual planning apparatus that Israel has put in place for Palestinians does the very opposite, barring almost any possibility of lawful construction. The B’Tselem report indicates that a mere 4% of Palestinian applications for building permits are granted. It stands to reason, therefore, that most Palestinians distrust the imposed system, don’t bother applying and, having no other choice, build without Israeli-occupation permits.
Israel aims to limit and deny Palestinian construction and development as much as possible within Israel’s jurisdiction and areas of effective control. At the same time, it generously authorizes the establishment and expansion of Jewish settler colonies on the very same land that Israel’s urban planning system places off-limits to Palestinian construction and habitation.
Israel has demolished the homes of many thousands of Palestinians. Beyond the (at least) 459 Palestinian villages and habitations that Israeli forces have depopulated and demolished between 1947 and 1963 inside the formal State of Israel (inside the Armistice Lines/Green Line), Palestinians in the 1967-occupied territories of Palestine are the subject of the B’Tselem publication. It reports that tens of thousands of Palestinians live in fear of house demolition and utter uncertainty about their future. The report asserts that hundreds of thousands live in unbearably crowded conditions, because Israel refuses to approve the expansion—including natural growth—of existing Palestinian communities. Establishing new communities is needed, but not an option for Palestinians under Israeli occupation.
The same principle applies inside the Green Line. However, the B’Tselem report maintains its focus on the Israeli-occupied Palestinian territory of the West Bank.
By deliberately ignoring this reality and refusing to draw the obvious legal conclusions, B’Tselem finds, the High Court justices not only fail to discharge their duties, they also play an active role in the settlement enterprise, further dispossessing Palestinians of their land and consolidating the protracted occupation and its concomitant destruction of indigenous habitation.
The report is part of a series issued by B’Tselem in recent years, examining how Israel has managed to create a chimera of legality for its extensive abuse of human rights and peremptory norms so as to make the violations more palatable, both at home and abroad. It is this façade that has enabled Israel to continue ruling over millions of people while denying their most basic rights for more than fifty years. B’Tselem’s Director of Research Yael Stein explained: “That is why exposing these mechanisms is vital to ending the occupation, and that is what this report is all about.”
See an English translation of the summary in pdf format and on the B’Tselem website.
عدالة زائفة: مسؤولية قضاة محكمة العدل العليا عن هدم منازل الفلسطينيين وسلبهم
See full report (in Hebrew):
צדק לכאורה : אחריותם של שופטי בג"ץ להריסת בתי פלסטינים ולנישולם