When the High Court of Justice (HCJ) reviews the military's conduct in the Occupied Palestinian Territories (OPT), it routinely says that every Israeli soldier carries in his backpack the rules of customary public international law concerning the law of war and the fundamental principles of Israeli administrative law. This statement, which originates in the famous
Jam'iat Iscan Al-Ma’almoun judgment,
[1] is still quoted in many judgments concerning the military's activities in the OPT. However, sometimes other rules and interests, some more legitimate, some less, find their way into the backpack and insist on being taken into account when the military considers its actions. Sometimes, these foreign interests take up so much room inside the backpack that its original “occupants” get pushed out and the HCJ's ambitious declaration remains no more than a dead letter.
One of the foreign interests that find their way into the array of considerations the military makes is the convenience of the Jewish settlers in the OPT and their relentless efforts to take over more and more Palestinian lands and assets. This was the case in the matter brought before the court in HCJ 4331/10
Municipality of Hebron v. State of Israel. The judgment in this case is yet another example of how the entire establishment – beginning with the military, through the military legal advisor for the West Bank and the state attorney's office and ending with the Supreme Court, has turned into an apparatus for fulfilling the aspirations of the settlers.
Though it was the state that first sought to demolish the path and then made an about-face, the judgment suggests that it was the petitioners who were expected to prove that there was no security reason for seizing the road
The judgment concerns “Dana Way”, a footpath cleared by settlers on land belonging to Palestinian residents of Hebron, most likely between 2002 and 2005. Some electricity poles were put on the sides of this path. Dana Way begins in the Jewish settlement of Kiryat Arba and connects with a paved road, known as Worshippers Way, that links Kiryat Arba to the Tomb of the Patriarchs. Shortly after the path was cleared, the Palestinian land owners contacted the State Attorney's Office, which confirmed that this was a case of illegal building and that it was being handled by the civil administration.
[2] Demolition orders were eventually issued against the clearing of the path. When further communications from land owners demanding the military execute the demolition orders yielded no results, a court petition was filed concerning the state's failure to enforce the law in a number of cases of settlers’ invasion of private property belonging to Palestinians in Hebron, including the aforesaid path.
[3] In its preliminary response to the petition, the state said that it would execute the demolition orders after receiving the required approvals. However, this position took a sudden turn, when, in a subsequent updating notice, the state said that unlawful building proceedings had been opened in the case, but the demolition order had not been executed and that the military was now seeking to seize the path for military reasons. Hence, a “land seizure order” was issued on May 9, 2010, and the land owners subsequently submitted their response to the order. The military immediately clarified what terminology should be used in this case from that point on. In its response to the objection, the military said:
“The security road located in this area was cleared a number of years ago, following…. a terrorist attack in which 12 soldiers were killed, including Yehuda Brigade Commander, Colonel Dror Weinberg RIP. This security road is used by IDF forces as a passageway and functions as an evacuation road when needed. In addition, this road is used as a pedestrian path by worshippers…”.[4]
What the military was trying to say was that a pedestrian path for worshippers was in fact a “security road”; and that the reason for clearing it was a terrorist attack that took place in the area, certainly not the settlers' convenience and their desire to grab more land and establish facts on the ground.
After the objection was denied, the petition which is the subject of this commentary was submitted to the HCJ. It was dismissed in a short judgment, covering no more than four pages. The judgment follows the military's approach in the response to the objection. Without mentioning, even once, who actually cleared the path, the court takes an alarmingly cavalier approach to the transformation in the state's position on the fate of Dana Way – from an illegal path that must be demolished to a perfectly legal road required for military purposes. Yes, Israel's administrative law, the same law soldiers carry in their backpacks, does stipulate that an administrative authority may retract a decision and change it entirely, but only in rare cases. The authority must have weighty considerations for altering the decision, or it may do so when the original decision was a result of an error or fraud or when new circumstances are discovered.
[5] Naturally, in such cases the authority must prove that the special circumstances warranting the change were in fact present.
[6] The court does not trouble itself with this theoretic debate. Though it was the state that first sought to demolish the path and then made an about-face, the judgment suggests that it was the petitioners who were expected to prove there was no security reason for seizing the road; and this, the court holds, they failed to do. The same goes for the reason the path was cleared. Although it was obvious that the settlers cleared the path for their own convenience, according to the court it was up to the petitioners to prove that there were ulterior, non-security motives for issuing the seizure order. The court maintained the petitioners failed to do this as well. And what about the change in the state's position which is acceptable only in rare cases, following newly discovered circumstances? On this the court rules:
According to the state's submission at the relevant time, the change followed a request from the military, which was thoroughly reviewed before being deemed justified. This conclusion has also been sanctioned by the new military commander of the Area. A change in position in these circumstance is not unacceptable per se, certainly not in an area where the situation on the ground is dynamic.[7]
On this matter, the court says:
[R]espondents' position that due to the high risk involved in traveling on Worshippers Way there is a need for an alternative, less dangerous route which would also serve as an escape route from Worshippers Way should the need arise, is supported by past incidents in the area in general and on Worshippers Way in particular. As has been written about Worshippers Way: 'No major effort of persuasion is required in order to prove that a major security risk is to be expected due to the passage of thousands of pedestrians in an area prone to attacks, whose alleys are so narrow that a vehicle cannot pass through certain parts of them, and abandoned buildings alongside of which might serve as hideouts for terrorists. Such terrain conditions justify, prima facie, taking measures to reinforce the security of pedestrians in the passage. They may not support the claim according to which, it is an irrelevant, hidden, motivation which led to the issuance of the order (HCJ 10356/02 Haas v. IDF Commander in the West Bank, IsrSC 58(3) 443, 460 (2004), hereinafter: Haas).[8]
The court treats the state's claims regarding current risks for those using Dana Way in much the same way it treats the settlers' role in clearing the path – very vaguely
The reference to
Haas requires an explanation. In 2002, following an incident in which Palestinians attacked a military detail on Worshippers Way, the military decided to expand this route. The expansion plan included the demolition of a number of houses belonging to Palestinians, in order to protect settlers who walk on this road on Saturdays and Jewish holidays. In a petition that was filed against the demolition of the homes, the HCJ balanced the Palestinians' proprietary rights against the settlers' rights to religious worship and the military commander's role in effectuating these rights. The HCJ dismissed the petition in 2004 and sanctioned the expansion of the road. Without getting into an analysis of the
Haas judgment,
[9] the balance the court struck over almost 30 pages in that judgment, was relevant to that incident and to that road. Indeed, the security risk the court speaks of did unfortunately materialize (that is, if one considers harm to IDF soldiers as grounds for measures designed to protect settlers…), but that was before the military took those severe steps and before the HCJ gave them its seal of approval. The manner in which the court simply duplicates the balance it made in
Haas in the matter discussed here, effectively gives the military carte blanche to take any action that can be excused as relating to settlers' safety, no matter what the consequences are for the rights of Palestinians.
The court treats the state's claims regarding current risks for those using Dana Way in much the same way it treats the settlers' role in clearing the path – very vaguely. A review of the state's submission to the court does very little to clarify matters. The state's response mentions a number of deadly terrorist attacks and attempted terrorist attacks committed against soldiers and settlers, but most of these predate the
Haas judgment, or are actions carried out on the outskirts of Hebron, rather than inside the city. The state admits in its response, that activity against Israeli targets has subsided, but ends its response with the statement that “in addition, dozens of attempts to carry out stabbing attacks within the Jewish settlement in the city of Hebron and the Tomb of the Patriarchs have been foiled and the list is unfortunately long”.
[10] When did these attempts take place? Were they perpetrated against individuals traveling on Worshippers Way? And most importantly, how can that justify the about-face in the state's position in 2007-2008? The state does not volunteer any information.
So this is the dynamic situation the court describes. As recalled, these dynamics provided the basis for the HCJ's acceptance of the state's explanation for its sudden change of position. One might guess that when the HCJ is asked to review the actions of other authorities – in other places and other circumstances – it does not settle for such weak reasoning. But this is the old city of Hebron, where the dynamic situation is expressed, certainly over the last few years, in increasing settler activity. On the other hand, the Palestinian residents of the city are subjected to closures and physical attacks by settlers. They are driven out of their homes and businesses, their economic and cultural lives in decline.
[11] What about international law, which is also supposed to take up some space inside the Israeli soldier's backpack, at least according to the HCJ's rhetoric? Is the court not required to discuss the fact that the road was not seized for military purposes, but rather in order to protect settlers (whose very presence in the area is entirely at odds with international law)? On this issue too, the court refers the petitioners to
Haas. It's all there. As we have seen in the case at hand, despite the fact that it is the military's role to ensure public order and safety in the occupied territory, its policy with respect to illegal actions by settlers is somewhere between disregard and active collaboration. Apparently, it is easier to legalize criminal settler activity than address it in accordance with the principles set in law, certainly when this is how the legal system responds to such activity. Along the way, all the enlightened principles the court repeatedly quotes are discarded.
The court chooses to end the judgment with a few educational words directed at the petitioners. After explaining to the petitioners how minimal the harm they suffered was, the court goes into a sort of sermon, with a touch of sour apologetics:
In fact, it seems that the petitioners' main complaint is that with the seizure order, legitimacy is allegedly given to the illegal act of clearing the path. This is not the correct interpretation. Indeed, in such cases, as a rule, offenders should not be rewarded – and the state itself has acknowledged this in the very fact that its initial position was that the demolition order should be implemented. However, in this case, there is a true security need for the path, and the situation has unfolded such that the demolition order cannot be implemented without ignoring this need, which, at the end of the day, concerns saving lives. Therefore, despite the discomfort, to say the least, caused by the manner in which the path came into being, we have reached a result whereby there is no cause for our intervention.[12]
The petitioners, the court says, do not interpret the matter correctly. Unlike them, there are those who understand exactly what is going on. This is what was written in the Kiryat Arba monthly newsletter:
Following HCJ approval for the development of the way of heroes (“Dana Way” that leads from the Nir yeshiva to Worshippers Way), work will soon begin in the area. The work, at a cost of some one million ILS, will be paid for by the Ministry of Defense… The new road expands Jewish sovereignty over Kiryat Arba Hebron and it will undergo quality development in the future, allowing pedestrians and strollers convenient and safe passage to the Tomb of the Patriarchs.[13]
Adv. Yotam Ben-HillelThe author is a lawyer and legal researcher on human rights in the Occupied Palestinian Territories. Formerly on staff at HaMoked: Center for the Defence of the Individual.
