Abu ‘Aram: Displacement of Persons, Displacement of Law

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| May 20, 2022

Masafer Yatta

On May 4, 2022, Israel’s Supreme Court sitting as High Court of Justice handed down its decision in HCJ 413/13 Abu ‘Aram v. The Minister of Defense. This decision granted the Israeli military authorities permission to displace over 1,000 Palestinians (and possibly as many as 2,800, depending on how broadly the decision is interpreted) residing in an area in the West Bank known as Masafer Yatta. In addition to the harsh implications of this decision for the protected persons potentially facing displacement from their homes, the decision harks back to decisions adopted by the Court decades earlier, in complete disregard of international law and its development over time.

Background

Masafer Yatta is an area in the Southern Hebron Mountain area in the West Bank. In 1980 the Israel Defense Forces designated it a closed military training ground. It relied on military legislation (Order Regarding Security Provisions, Article 318) that authorizes the military commander to issue closure orders and consequently remove persons from closed areas. Such removal did not apply to permanent residents in the closed area. In 1997, however, a removal order was issued against Palestinians residing in the designated area, and since then numerous petitions have been submitted to the Supreme Court against such removal.

The authorities maintained that the petitioners and their communities were not permanent residents in the area prior to its closure in 1980 and thus were not immune to removal. At the same time, over the years and under the shadow of the various petitions, the authorities proposed practical arrangements that would allow the Palestinians residing in the area limited access to it for grazing and land cultivation purposes, but not continued residence.

At no time did the authorities clearly explain the military necessity of training in the West Bank rather than training within Israel that could justify, under the law of occupation, the closure of the specific area. The main reasoning it gave for this choice was budgetary considerations (allowing troops stationed in the West Bank to train near their bases).

The Case

The Abu ‘Aram case originates in a petition submitted in 2013. Petitioners—residents and land owners in the Masafer Yatta—argued that the closure of the area violated Article 49(1) of the 1949 Geneva Convention Relative to the Protection of Civilians in Times of War (GC IV) and Article 43 of the 1907 Hague Regulations. They further argued that the closure disproportionately and unreasonably violated international human rights law (IHRL), specifically the right to private property, the right to freedom of movement, and the rights to sustenance and housing.

The military authorities argued that the petition should be rejected on procedural grounds, namely laches and unclean hands. On the substance the authorities maintained that the designation of the closed training ground was compatible with the law of occupation, local law, and Israeli administrative law; that prior to the designation the petitioners did not reside in the area on a permanent basis; and that the closure was justified when there was an imperative need for military training and there was no other location equal in quality to the one that had been closed.

The Decision

As noted, the Court rejected the petition and upheld the closure order and the subsequent removal order. Formally it did so on procedural grounds. It accepted the authorities’ laches claim, namely that the first protest against the closure order was made only in 1999, two decades after the order had been issued. The Court also held that the petitioners’ hands were unclean, since over the years they continued to build housing structures in the area without permit and despite Court-issued interim measures that prohibited construction (these structures were repeatedly demolished by the military authorities). As usual, the Court paid no heed to the fact that Palestinian requests for construction permits are almost always denied.

Despite having rejected the petition on procedural grounds, the Court proceeded, as it has done in the past, to also address the substantive arguments of the parties. In relation to factual issues, the Court accepted the authorities’ position that the petitioners had failed to prove their residence in the area prior to its closure in 1980, and were thus susceptible to removal under the military commander’s order. As for the law, the Court rejected the argument that the closure order was contrary to international law, including and especially GC IV. This rejection consists of only four sentences, containing legal propositions that are at best controversial, at worst erroneous. The remainder of this post examines each of these four sentences (for additional analysis of the case see here). But before doing so, it is worth noting what is absent from the decision.

The Paltry Treatment of International Law

Contrary even to its own established practice, at no point did the Court examine whether the military commander had the authority under international law to issue the closure order, or whether he exercised that authority lawfully. Since training is neither an imperative military need relating to the area nor beneficial to the local population, prima facie closure of an area for this purpose exceeds the powers of the military commander under Article 43 of the 1907 Hague Regulations. While the military authorities for their part claimed that the area was “unambiguously required,” the Court’s decision did not address the issue at all.

While disregarding the limitations imposed by Article 43, the Court invoked the provision as the source of authority for the closure. It stated that it had “long since recognized the authority of the military commander to order the closure of an area, based on the laws of belligerent occupation, an authority that derives, inter alia, from the obligation to ensure the welfare and security of the population in the territory.” In a woeful display of lack of self-awareness, it upheld a measure denying entire communities the right to reside in their homes as one justified by the obligation to ensure their welfare and security. No less audaciously, to support this view the Court cited an earlier case in which it held that the denial of access of Palestinian residents to their lands was unlawful and could not be the means of protecting their safety (in that case, from settler violence).

The Court held that “even if we assume that the military commander’s actions in the area has to be examined in light of the ‘customary’ provisions of the Convention [a matter to which the Court and I return later], there is no dispute that when an explicit provision of Israeli law contradicts the rules of international law, Israeli law prevails.” The applicability of this doctrine on normative hierarchy, which is grounded in the separation of powers, is actually very much disputed when it comes to occupied territory, where all powers rest with the military commander and derive from international law.

Moreover, the doctrine as previously applied by the Court gave precedence only to the local law of the territory, namely Jordanian law, and not to military orders (which are not even “Israeli law,” as the Court referred to them). Those, according to the Court itself, derive their authority from the law of occupation. By seemingly holding now that military orders prevail over contradictory international law (customary, let alone conventional), the Court has effectively eliminated any basis for judicial review of the military authorities’ conduct in light of international law, whether it be the law of occupation or other bodies of international law.

Given that the petition was rejected on procedural grounds, the statements on the status of international law or the framework for reviewing the military commander’s conduct were already superfluous. Yet the Court went even further and opined on the interpretation of GC IV Article 49(1). Regrettably, its engagement with the matter consisted of two propositions devoid of any substantiation.

First, the Court stated  that “it has been decided that [Article 49(1)] is a conventional provision that does not reflect customary international law.” In support the Court cited its own decisions from the 1980s, disregarding the ICJ’s later view in the Nuclear Weapons Advisory Opinion (para. 79); the practice of numerous States as reflected in military manuals, legislation, and case law; and the views of international organizations and scholarly opinion (see also a recent Articles of War post).

Second, the Court held that Article 49(1) “was intended to prevent mass deportation of population in occupied territory in order to exterminate it, subject it to forced labour, or achieve political various purposes.” For this statement the Court offered no authority, not even its infamous decision in the 1988 ‘Abed Al-‘Afou case, where it held that despite its unqualified wording, Article 49(1) allows deportation of individuals regarded as causing security risks. The case at hand, Abu ‘Aram, clearly concerned mass transfer (since it lacks consideration of individual cases) and is not grounded in any security concerns.

The Court’s treatment of IHRL was even more cursory than its treatment of the law of occupation. It merely referenced some previous decisions without explaining their import. In two of these cases, the Court had noted the controversy over whether IHRL was applicable in the occupied territory. Could the Court in the Abu ‘Aram case dispose of the matter by merely noting the controversy without taking a position on it? Possibly, if it maintained that on the substance IHRL would not vindicate the petitioners’ claims, or that their claims were covered by another body of law. Yet the Court made no such finding. It simply disregarded IHRL without even acknowledging the host of arguments that needed to be addressed.

The Court’s decision was delivered by Justice Mintz, joined by Justices Amit and Grosskopf. Justice Mintz concluded by emphasizing that the military authorities had offered  various concessions to allow the petitioners access to the area for grazing and cultivation on weekends and Jewish holidays, as well as for two months every year. In his view, the authorities were acting above and beyond the demands of the law by taking into consideration the needs of the farmers (disregarding the fact that such consideration is never beyond the demands of the law of occupation). Justices Amit and Grosskopf echoed this sentiment by emphasizing the need to adopt a pragmatic approach. Justice Amit called on the petitioners to reach a settlement that would promote their “agricultural-economic-cultural” interest, as Justice Amit labeled it. The Court’s implicit criticism of the petitioners’ unwillingness to accept the compromise offers made to them found expression in his imposing relatively high court costs on the petitioners.

Conclusion

The Court’s retrogressive positions contradict not only the substantive law of occupation as generally understood, but even the Court’s own previous interpretation of that law, IHRL, its own case law on judicial review of the military authorities, and Israeli legal doctrine on the relationship between international and local law. This resulted in giving the authorities a green light for mass displacement of Palestinians from their homes of decades, without demanding that the authorities give even the slightest justification other than that they have arrogated to themselves that power.

Formally, the substantive analysis in the decision does not constitute binding law because the petition was rejected on procedural grounds (leaving aside that the Court is not formally bound by its own decisions). Importantly, however, this detracts nothing from the decision’s power as authoritative guidance. It is especially potent for a court that is increasingly reluctant to challenge its own earlier rulings, and for authorities that are only too happy to revert to legal and policy views that have been abandoned over the years as international law developed. Israeli case law and practice have thus been endowed with a legally unsustainable ruling which bears calamitous implications for individuals.

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Yaël Ronen is a professor of law at the Academic Center for Science and Law, and a research fellow at the Minerva Center for Human Rights at the Hebrew University in Jerusalem.

 

 

Photo credit: Tzipi Menashe via Wikimedia Commons