In one of the Israeli Supreme Court’s comprehensive judgments regarding the law applicable in the OPT, the court acknowledged the constitutional status of the human rights of residents of the OPT. In that same judgment, the High Court of Justice (HCJ) sanctioned the demolition of Palestinian houses in Hebron. The judgment was penned by Justice Procaccia with the consent of the then Supreme Court President Aharon Barak and Justice Mishael Cheshin (later Deputy President).
The state is obligated to defend the human rights of any person... But in the case of the settlers, the state itself is party to the illegality
According to the facts presented in the judgment, the affair began on November 15, 2002, in an incident in which armed Palestinians fired at security forces and worshippers making their way to Kiryat Arba following the Friday evening prayer in the Tomb of the Patriarchs. The incident took place in what is called the “worshippers route” connecting Kiryat Arba and the Tomb of the Patriarchs, partly running through the eastern part of the Old City of Hebron (the Kasbah). A gun battle ensued in which 12 members of the Israeli security forces (soldiers, border police officers and Kiryat Arba security men) were killed. It should be noted that the court may have described the incident inaccurately and that Palestinian organizations did not attack civilians in this case. According the descriptions in other sources, the incident began with a shooting at a security detail guarding the worshippers, not at the worshippers themselves; no mention is made of an attack on civilians. As it was described in the media, the shooting began after the worshippers had already entered Kiryat Arba and was aimed at the security forces who had escorted them and patrolled the route.
[1] Following the incident, the military decided on drastic measures including the expansion of the “worshippers route” and the creation of a broad promenade connecting Kiryat Arba to the heart of Hebron. Among other things, a plan was made to demolish 13 houses along the road. The building of a “promenade” is yet another stage in the Judaization of Hebron and the creation of Jewish territorial contiguity between Kiryat Arba and the Jewish enclaves in the heart of the city. The City of Hebron, the Committee for Building Restoration in Hebron, affected property owners and Israeli organization Yesh Gvul and its activists petitioned the HCJ against the construction of the “promenade”. The state’s position in the petitions was, of course, that the decision was based purely on security considerations and was meant to protect the lives of the worshippers using the road. The measures were not meant to create Jewish territorial contiguity, but rather reflected the conclusions drawn from the incident in which the soldiers had been killed as well as other incidents of shooting directed at the road. The court, as always, did not stop to consider the state’s explanations.
Following the petitions and following the remarks of the court, the military reduced the scope of the original plan. The width of the promenade was decreased and the demolitions were limited to three houses. These three houses had been abandoned for years, after their dwellers left them. The description of the petitioners’ arguments that is given in the judgment lends itself to the conclusion that the houses were abandoned following the proclamation of the area as a closed military zone. Many houses in the Old City of Hebron were abandoned following repeated attacks by Israelis
[2] and the actions of the military which derail any possibility of a normal life.
[3] The court described at length how the scope of the demolitions was reduced following the hearing of the petition. In so doing, while rejecting the petitions, the judgment emphasizes the positive role the court played in mitigating the harm to the Palestinian residents. It may be that the justices found it easier to reject the petition with respect to the demolitions on which the state insisted considering the fact that their comments mitigated the demolition. Approving the demolition of three houses is not as bitter a pill to swallow when the court can take credit for saving ten others.
The difficulty facing the justices was that the laws of war strictly forbid the destruction of buildings, except for imperative operational military needs. This prohibition is enshrined in Art. 23(g) of the Hague Regulations which determines: “It is… forbidden [t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war”. Art. 53 of the Fourth Geneva Convention stipulates “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations”. The demolition of houses outside these narrow criteria may even be considered a war crime under Arts. 146 and 147 of the Fourth Geneva Convention.
[4] In this case, it was not argued that the demolition of the houses was required for the necessities of war and certainly not for the purpose of any military action. It was meant to ensure pedestrian traffic for settlers whose very settlement in the OPT is a grave breach of international law. If this were not enough, the houses earmarked for demolition were of archeological value and as such benefitted from other protections.
Since it is impossible to approve the demolitions in the framework of the military action exception, the court created another exception to the prohibition. The court deduced this exception from the military commander’s duty to preserve normal life in the occupied territory:
Requisition of property as aforesaid may also occur in extreme situations where it shall be required in order to satisfy essential living needs of the population residing in the area; thus, for example, the need for the requisition of private land for the purpose of paving roads and access routes to various locations in the area has been recognized. In exceptional cases, certain damage to private property may also occur for the purpose of protection of other constitutional human rights of a population living in the area, where these are contrary to an individual's property right in a specific case.[5]
However, how can this exception be implemented when it is not designed to protect the normal life of the residents of the occupied territory (quite the contrary!), but rather make life easier for Israeli settlers whose very settlement in the area is prohibited under international law? This is the court’s response:
In addition to the Area Commander's responsibility to ensure the safety of the military force which he commands, he must ensure the safety, security and welfare of the area' inhabitants. The said duty applies to him in respect of all the inhabitants, regardless of their identity – Jews, Arabs or foreigners. The question of the legality of the settlement of various groups of population in the area is not currently required to be decided by us. The duty of the Area Commander to guard the safety of their lives and their human rights is derived from their mere residence in the area.[6]
In the process, the court acknowledges that these rights have constitutional status, even when it comes to the Palestinian residents of the OPT. Thus for example, the court notes:
Within his responsibility for the welfare of the area's inhabitants, the commander must also see to the provision of proper protection to constitutional human rights of the area's inhabitants, within the limitations posed by the conditions and factual circumstances in the field. Such protection also applies to all kinds of population residing in the area – Jews and Arabs alike.[7]
Here you have an ingenious legal exercise: the actions designed to reinforce the illegal settlement project are presented as actions designed to defend the individual human rights of the settlers, whose presence in the area is a pre-existing fact, a matter of fate, which does not at all derive from the deeds of the state and is not second guessed. The state must protect any person within its territory from acts of violence – even a migrant worker whose presence in Israel is illegal. By the same token, it must demolish Palestinian houses in order to protect the right of settlers to walk on the Sabbath to pray at the Tomb of the Patriarchs, even if the very fact that the settlers live there contravenes international law. Clearly, the comparison is obviously unfounded. The state is undoubtedly obligated to defend the human rights of any person, whether his presence in one place or another is legal or illegal. But in the case of the settlers, the state itself is party to the illegality and the measure examined by the court was part of the institutionalization of their illegal presence in the territory.
It is reasonable to doubt whether the court would have sanctioned the demolition of ancient Jewish houses... to protect Palestinians wishing to reach a Muslim place of worship
Another puzzling issue in the judgment relates to the balance it strikes between the conflicting interests. One the one hand, there is the right of the Kiryat Arba settlers to freedom of religion (more accurately their right to pray specifically at the Tomb of the Patriarchs and specifically on Fridays and holidays when arrival at the Tomb from Kiryat Arba is only on foot); on the other, there are the Palestinians’ property rights and the preservation of the architectural character of the Old City of Hebron, including elements from the Mamluk period. It is reasonable to doubt whether the court would have sanctioned the demolition of ancient Jewish houses (thirteen or three) that had archeological elements relating to one of the periods of Jewish rule in the land, for no other reason than to protect Palestinians wishing to reach a Muslim place of worship. The constitutional status of the human rights of Palestinians in the OPT, as determined in the judgment, was no guarantee, in this case, for respect of these rights.
Adv. Yossi Wolfson The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
