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A line of selective rhetoric: Israeli Supreme Court fails to enforce the evacuation of 'unauthorised settlements' in the occupied West Bank

On 10 June 2009, the Israeli Supreme Court (HCJ) rendered another stultifying judgment with regards to the occupied Palestinian territories (OPT), this time on the evacuation of what the Court refers to as ‘unauthorised settlements’ or squats in the occupied West Bank. It should be noted as a point of clarification that the state and Court differentiate between two kinds of settlements – one kind is termed by the Court as the regular type of settlement, and the other as an illegal one (i.e. a squat consisting usually of temporary caravans or tents established as extensions of existing settlements). Remarkably, no international legal provisions are either cited or considered in the determination of this terminology or the deliberation in the case.

In the course of the hearing in the case, Justice Beinish, President of the HCJ, criticised the state for failing to enforce the demolition orders for the so-called squats. She held “for years we hear general and ineffective answers”. When Beinish inquired with the state attorneys what the state has to say in its defense, the response was unsatisfying to say the least by noting only that it operates under the priorities set out by the Minister of Defense. These statements did not consider why and how these priorities were determined. Instead of taking stringent measures to ensure that the state comply with the orders at once, the Court decided to give the state another 90 days to present the Court with an update on the implementation of the orders – this being three whole years after the orders were issued and affirmed by the Court itself (See the article in Haaretz in Hebrew).

It should be noted, as Yadin Elam, a local human rights lawyer, has importantly highlighted in his comment on the case, that it is to no great surprise that the state is not evacuating the illegal squats in the occupied territory. After all, the Court has not once throughout the three whole years that the petition had been pending in front of the Court, unequivocally ordered the state to do so. On the contrary, during three whole years, the Court had allowed the state to draw out the proceedings in the case by presenting the Court with one request for an extension after another – requests that the Court repeatedly approved without once asking why the state is taking this long to gather a position on the matter, and how could anything be said in defense of the state when the very fact of it taking three years to be submitted to the Court is in itself prolonging the time that it has taken to implement the existing orders previously affirmed by the Court. In other words, Elam’s comment rightly emphasizes, that what Justice Beinisch should have really asked during the recent hearing, instead of “why the state is not evacuating the squats?”, is “why the Court is not ordering the state to evacuate them?”

It should also be recalled that the HCJ has a history of evading a substantive and thorough discussion of the fundamental question of the status of the settlements in international law. In fact, the issue has not been treated since the Bar Gil case that terminated in the mid-1980’s. Since, the Court has regularly considered legal questions that pertain often directly to the existence of settlements (of either or both kinds) in various regions of the occupied West Bank, but have not once embarked on the principle question of their legality. Examples of this are most bluntly seen in the Separation Wall cases (most famously the Beit Sourik case, inter alia), where the military commander of the occupied West Bank has expropriated land for the construction of the Wall built for the security of an existing and sometimes even a prospective settlement that is being built.

More so, Israel has upheld a bifurcated system of norms and standards in the occupied Palestinian territories since the commencement of its occupation of the region in 1967. The discriminatory enforcement of the law and the prioritization of the Jewish settlers population over the local Palestinian population not only exemplifies Israel’s utter heedlessness towards the applicable legal framework of the international law of occupation, that centrally upholds the prohibition on the transfer of the population of the occupying power into the occupied territory (Art 49 of the Fourth Geneva Convention 1949). More so, it also generates violations of the international legal prohibitions on apartheid and colonialism, as we have considered in a previous post.

Not apart from this, the recent judgment in the Braude case, a settler who faced suit for shooting three Palestinians during the violent events in the context of the evacuation of the ‘Disputed House’ in the city of Hebron, occupied West Bank (events that were recorded on video by an NGO field worker that was present on the scene), presents a clear example of the discriminatory application of the law. In this unprecedented decision on the use of secret evidence by the state, the HCJ upheld that if the evidence presented by the state in the case could not be disclosed to the defendent, his right to a fair trial and his right of defense would be irremediably violated, conditioning the continuation of the case on disclosure. As a result, the state that refused to give in to the Court’s demands, basing its claim on the danger posed  to the public from disclosure of the state’s sources, decided thereby to withdraw the charges against Braude altogether.

The novelty of the case is premised on the fact that such a judgment has never been, or is likely to be, rendered in a case with a Palestinian defendent/petitioner. Shawan Jabarin, the General Director of the Palestinian NGO Al-Haq, an affiliate of the Geneva-based International Commission of Jurists, has been barred from traveling out of the West Bank since 2006. The evidence presented to the Court in the recurring petitions submitted on his case has always remained secret and the judges have refused repeatedly to order its disclosure (see a translation of the most recent HCJ judgment in his case).

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