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The Israeli Military in the Service of the Dead Sea Beach Operators: HCJ 5148/08 the Association for Civil Rights in Israel v. Chief of the General Staff (Judgment of December 10, 2009)
Court Watch | 5148/08 | 1.12.2009 | Adv. Yossi Wolfson
Beit Ha'arava Checkpointat a few days after the military announced the checkpoint had been removed; a Palestinian car is detained by the wayside while Israeli cars pass through, June 8, 2008. Photo: Firas Alami, ACRI
Criticism
“Cover ass” is not appropriate language, but as whitewashing is not a proper act in the legal world, why use proper language to describe it?

This is all that the justices of the Supreme Court wrote in their judgment in HCJ 5148/08 the Association for Civil Rights in Israel v. Chief of the General Staff (2009):

The essence of the petition – the lifting of the ban on the entry of Palestinian residents through the Beit Ha’arava checkpoint – has been granted in that since the end of August, 2008, the operation of the Beit Ha’arava checkpoint was discontinued in its previous format, whereby the entry of Palestinian residents to the Dead Sea area was blocked at various times. As of today passage at the checkpoint is no longer barred, but it is used for checking activities only. Nonetheless, in the event of a focused security alert, a temporary blocking of passage by Palestinians through the checkpoint may occur.

As for the second facet of the petition, related to the statements made by the departing commander of the Bika’a Brigade in respect of the background to the prevention of the entry of Palestinians through the checkpoint, an extensive enquiry into the matter was held within the framework of a hearing led by the head of the command, and with the participation of others.

In the framework of this enquiry it was clarified to the departing brigade commander that his statements, from which it arose that there were, ostensibly, non-security considerations in the operation of the checkpoint, were untrue and improper, and in fact the establishment and operation of the checkpoint are rooted entirely in security considerations. This military policy was also clarified in informational activities and briefings to the soldiers. The message was relayed and emphasized also upon the new brigade commander’s assumption of office.

Under these circumstances, the military did not take further measures against the departing brigade commander. We see no room to intervene in the way the military handled this facet of the petition.

The petition is denied.[1]

The reader may wonder what the brigade commander’s statements were which the High Court of Justice (HCJ) prefers to describe in a general and vague manner only. The answer, which is not in the judgment itself, is provided in the petition of the Association for Civil Rights in Israel (ACRI).[2] It appears that in a briefing to reserve officers, the brigade commander explained that the reason for the erection of the Beit Ha’arava checkpoint was the economic harm caused to Jewish settlements on the beaches of the Dead Sea when Palestinians vacation there alongside Jewish vacationers. Namely, where there is “mixing”, there is less income. The brigade commander was also able to recount that the checkpoint was erected due to these considerations following an appeal by the district council. As one of the officers, Lieutenant (res.) Na’aman Falah, stated in an affidavit attached to the petition:

In training which preceded deployment, regiment commanders had a briefing with the section brigade commander. Some of the statements the brigade commander made in this briefing: some of the Dead Sea beaches are owned privately by the settlements. The beaches are a private business. The arrival of Palestinians from the Territories to the beaches harms tourism and the economy of beach owners. The district council contacted the defense ministry on this issue and that it why there is a checkpoint at the Beit Ha’arava junction.[3]

The checkpoint’s operation was consistent with this purpose: it was mostly active on weekends, when many Israelis visit the Dead Sea beaches. The soldiers at the checkpoint did not perform a security check on Palestinians wishing to cross it but turned them away – including groups of children on school or summer camp trips. It must be stressed – this is a checkpoint located in the heart of the Territories and blocks access to the part of the Dead Sea beaches which is in the West Bank. Racist attempts by beach operators to prevent the entry of Arabs is nothing new and it has been brought before the court in the past.[4] Thus, the opinion that what the brigade commander told his subordinates was not a product of an overactive imagination is not unfounded.

It appears that these important security considerations were not significant enough to defend in a legal proceeding. Less than two months after ACRI submitted the petition, Palestinians ceased being denied passage at the checkpoint

Yet the military denied the statements of the brigade commander. Certainly not! The reasons for the checkpoint were security related only. The economic interests of the settlements operating the Dead Sea beaches had nothing to do with the erection of the checkpoint.[5] However, it appears that these important security considerations were not significant enough to defend in a legal proceeding. Less than two months after ACRI submitted the petition, Palestinians ceased being denied passage at the checkpoint.[6]

And what of the brigade commander’s statements? As the judgment notes, it was made clear to the officer that his “statements” were untrue and improper. However, the court notes that the military “did not take further measures against the departing brigade commander”. The tables have turned. There is no alleged reason to doubt the statements of the brigade commander who innocently conversed with his subordinates. However, in such a case, it is necessary to take action against whoever granted the district council’s request and ordered the erection of the checkpoint. As for the brigade commander’s statements, which were entirely true: they must be lauded since they led (even if contrary to his intention) to the truth being uncovered and a wrong being stopped. A person should never be punished for speaking the truth! However, according to the military, the brigade commander lied and therefore his statements, which are racist and misinterpret the mission, are what is wrong. Or, as Justice Joubran said during the hearing of the petition, the brigade commander should have assumed that among those who heard him there were non-Jewish soldiers (as if there is nothing wrong with an officer making racist remarks when there are no Arabs in his audience).

A person reading the judgment might get the impression that the petitioners sought to have action taken against the brigade commander for his statements, which were one of the pillars on which the petition rested – but this is not the case. ACRI did not petition on manners. ACRI’s petition sought to investigate who gave the illegal order to block Palestinians’ access to the Dead Sea. Like the statements of the brigade commander, so the remedy sought and the disputed issue were blurred in the judgment.

The affair leaves us with two questions:

The first relates to the military. Did the military try to whitewash an illegal order to deny Palestinian access to the Dead Sea in order to ethnically segregate the beaches and serve the economic interests of the settlers who operate them; or are we to believe that the brigade commander’s statements were inconsonant with reality?

The second question relates to the court. The court chose not to provide a full description of the facts in its judgment, a description which would have given those reading the judgment insight into the doubts regarding the military’s conduct. In any event, the judgment does not explicitly rule whether what is at issue is an illegal order and whitewashing on the part of the military or a bizarre statement by a brigade commander. It appears, implicitly, that the court adopts the latter option. Yet why not present the matter in full and provide reasons for the ruling in the context of an orderly presentation of the facts? Is it improper to put the inappropriate statement on paper? Is it difficult to explain why the court was satisfied that the enquiry held by the military suffices to remove the concern that there was an illegal order? Perhaps it is more convenient for the embarrassing affair to collect dust among the files of the court rather than be exposed to public scrutiny via the judgment.


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.


[1] 
HCJ 5148/08 the Association for Civil Rights in Israel v. Chief of the General Staff (2009), judgment of December 10, 2009.
[2] 
Ibid., petition of June 10, 2008.
[3] 
Ibid., appendix A/4 of the petition; quoted in para. 8 of petitioner’s response to the respondents’ supplementary notice, November 6, 2008 (in Hebrew).
[4] 
CC (TA) 11258/93 Na’amna v. Kibbutz Kalya (1996), judgment of September 1, 1996 (in Hebrew).
[5] 
See above note 1, respondents’ supplementary notice of September 16, 2008 (in Hebrew), para. 9.
[6] 
Ibid., agreed motion to extend respondents’ response deadline, July 14, 2008 (in Hebrew), para. 6.
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