Center for the Defence of the Individual - HaMoked to the HCJ: Revoke the new military order which obviates the possibility of appealing a military decision to confiscate Palestinian property
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HaMoked to the HCJ: Revoke the new military order which obviates the possibility of appealing a military decision to confiscate Palestinian property

Over the past year, HaMoked handled two cases in which money was confiscated at Allenby Bridge from Palestinians who were en route from Jordan to the West Bank. In the legal proceeding conducted in one of these cases HaMoked argued against the unacceptable procedure by which the money had been confiscated. This was an appeal in the case of a Palestinian doctor who works in Jordan. Money she had with her was confiscated when she entered the West Bank to visit her family in Nablus.

In the decision, released on January 6, 2014, the military court ruled that the arguments raised by HaMoked did not justify accepting the appeal outright. The court ruled that there were lawful grounds for the confiscation and that the right to a hearing had been upheld.

In the second part of the decision, the court notified the parties of a new order, recently issued by the military commander, which revoked the court’s jurisdiction to hear cases involving confiscation. According to the new order, the decision to confiscate property cannot be appealed to the military court. The court requested the parties’ position on the new order before hearing arguments on the legality of the individual confiscation cases.

On January 14, 2014, HaMoked submitted is position to the court, stating that although the new order clarifies that the military court lacks jurisdiction to hear the appeal on the property confiscation, according to the army, this was the legal situation even before the order was issued. The court had no jurisdiction then either, and the publication of the order simply serves to reiterate the existing legal predicament.

This is the place to note that this interpretation of the legal situation prior to the order had been rejected by the court time and time again, with the court insisting that it did in fact have jurisdiction to hear appeals against the confiscation of money and property. At the same time, the military is careful to conduct confiscations solely pursuant to the Emergency Regulations, which are unclear with respect to the court’s jurisdiction to hear appeals, rather than using more modern regulations which contain clear references to the right to appeal. It seems that the publication of the order was meant to force the court to define its jurisdiction as the military sees it.

On February 23, 2014, the military asked the court to postpone the hearing, explaining that the order had been challenged in the Supreme Court just a few days earlier. The military claimed that it was inappropriate for the military court to adjudicate on an issue that was pending before the Supreme Court. Given this development, HaMoked decided to go to the Supreme Court sitting as High Court of Justice (HCJ) on the issues of principle related to the legality of the order and the jurisdiction of the military court. HaMoked asked the military court to adjourn the hearing on the individual confiscation cases until the HCJ delivered its judgment on the issues of principle.

On March 9, 2014, HaMoked petitioned the HCJ to instruct the military to revoke the order. HaMoked argued that the order leaves Palestinians whose property had been confiscated with one choice only – going to the HCJ, thereby violating the right to access to justice, which is enshrined in international law, as well as Israeli constitutional and administrative law. HaMoked stressed that turning to the HCJ is not a real option for many Palestinians due to financial restraints, the physical distance and the need to have Israeli counsel. In addition, there are many advantages to holding hearings on confiscation at the military court level, primarily the court’s ability to hear evidence and factual arguments regarding the confiscation. HaMoked further explained that under the guise of “clarifying the legal situation”, the military was in fact forcing the military courts, through legislation, to accept its position on the jurisdiction issue – a position that had been repeatedly rejected by the courts.

Beyond the specific case of money that was confiscated without justification and contrary to protocol, it will be interesting to hear what the HCJ has to say about an order which simply states that the military commander’s decision “is the final decision”.