In the framework of HCJ petitions against a military order eliminating the possibility of appealing a military decision to confiscate Palestinian property: the court rules the military must establish an appropriate objection mechanism
On March 9, 2014, HaMoked petitioned
the High Court of Justice (HCJ) to revoke Military Order 1732
stipulating that decisions to confiscate property of OPT residents cannot be appealed before a military tribunal, “and are followed by nothing”. The Order was issued on December 25, 2013, but made to apply retroactively, from the onset of the occupation in 1967.
HaMoked stressed that the Defense (Emergency) Regulations, 1945, from which the military commander drew his authority to confiscate Palestinian property, provided both for the residents’ right to appeal before a military court against confiscation decisions and for the military courts’ jurisdiction to hear such administrative appeals. Moreover, HaMoked asserted that eliminating this avenue of appeal to a military instance, leaves Palestinians whose possessions had been confiscated only one option – petitioning the HCJ. Aside from the added procedural load this entailed, accessibly to the HCJ was very limited for the population of the OPT, both physically and financially. HaMoked argued that the Order severely violated the OPT residents’ right to property and also their right to access to justice
– a basic right under international humanitarian law and also a recognized constitutional right in Israeli public law.
In a preliminary response
, dated December 30, 2015, the military commander maintained that the military courts in the OPT did not have jurisdiction nor skill to review administrative seizures pursuant to the Defense (Emergency) Regulations (as opposed to criminal-related seizures). The response stated that the Order was issued “in order to clarify the current legal situation
”, whereby the military courts in the West Bank were not given the authority to conduct administrative review proceedings, including is such as those; the military courts were formed to consider criminal cases only, rather than administrative ones. Furthermore, that “the military court institution was not founded as a general body of review over the military commander’s decisions, and was not given the general authority to consider such decisions”.
On January 6, 2016, the HCJ held a joint hearing in HaMoked’s petition and two similar petitions by Nadi Al-Asir (the Palestinian Prisoners Society) and Yesh Din. The court rejected the claim that the Order was illegal, but determined that it was unreasonable that a person who sought to appeal against the seizure of his possessions pursuant to the military’s commander decision, could only turn to the Israeli Supreme Court as a first instance, rather than to a military first instance operating in the OPT. At the end of the hearing, the court issued a decision
, ruling that “there is room to establish a forum of objection or appeal over confiscation decisions, rather than having every objection in this context raised in a petition to the HCJ”.
The court gave the state four months in which to establish a military tribunal to serve as an “appropriate objection mechanism”. At the end of this period, the state must submit an updating notice the court, to be answered by the petitioners two weeks later.