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Settlement with Impunity: HCJ 6492/08 SHA’AL – Peace Now for Israel Educational Enterprises v. IDF Commander in the West Bank (Judgment of January 14, 2009)
Court Watch | 6492/08 | 15.2.2010 | Adv. Yossi Wolfson
An Israeli military checkpoint in the Old City of Hebron, 2012. Photo: Ahmad Al-Bazz, ActiveStills
One of the important characteristics of occupation under international law is its temporariness. An occupying power is prohibited from introducing permanent changes in an occupied territory. Therefore, as far as the Supreme Court of Israel is concerned, all the changes Israel made in the Occupied Palestinian Territories are only temporary: the settlements, the separation wall, the military camps. The seizure orders which have been and are still issued for building all these are forever temporary in nature – if only due to the unending temporariness of the occupation. When legal doctrine requires the flag of temporariness be flown alongside the Israeli flag over some project or other, indeed, even very long periods of time are merely fleeting moments. However, when the court is asked to intervene in an act of settlement that no one disputes is unlawful, the very same period of time becomes substantial and long, shielding the settlement enterprise from judicial intervention. At least this was the case of the settlement in the old central bus station in Hebron.

Until 1983, the Hebron central bus station was located in the center of the city, near the Kasbah, off Suhadah Street. The bus company is considered a protected tenant in the site to this day. In 1983, the Israeli military shut down and took over the site. The central bus station was later relocated and bus routes were adjusted accordingly. A military base was built on the site of the old bus station. Over time, Jewish settlers came to live in caravans inside the military base. This compound now has two sections, a military one where soldiers are housed and a civilian one where the settler's dwellings are located.

Following the military takeover of the compound a petition was submitted to the High Court of Justice (HCJ). The court reviewed two major arguments presented by the petitioners. One was that the military had acted without a proper, legal, seizure order having been issued. The second argument was that the military takeover of the compound was not done due to permissible reasons of military necessity, but rather as part of the Jewish settlement project in the city. The judgment was delivered almost nine years after the petition was submitted. The court ruled that the seizure of the area had not been done without an order: there was one and it was given orally. However, the court did scold the state: “we do wish to note that proper administration procedures require that despite the fact that orders may be issued orally, once the urgency subsides, and where this is justified, a written order should be issued”.[1] As for the reasons for the seizure, the court accepted the state’s claim that the considerations were purely military related.

One might have expected the state to take heed of the court’s reprimand and put the oral seizure order in writing. It turns out that this was not the case. Years went by and only in June 2009, 26 years after the area was taken over and 17 years after the court’s reprimand, the military commander signed a seizure order for the area. The signed order is designed to meet the formal requirements of international law: firstly, it is time limited, to December 31, 2013. Obviously, no one expects that the military will vacate the place on that date. More likely, the order will be extended. Yet, the appearance of temporariness must be kept up, as international law allows a military takeover of an area only if it is temporary. Secondly, and this is the main issue: the seizure order relates only to the part of the compound which now serves the military base. The area used for civilian dwelling remained outside the scope of the signed order.

And what of the area where the settlers live? It should, it seems, be returned to the bus company. The new seizure order does not apply to it. The old seizure order, which was never cancelled, may still be valid, but it was issued only for military needs. It was not issued, and could not have been issued, for settlement by civilians. And just why are there civilians inside a military base? After all, the law of war does require clear separation between military and civilian facilities.

In 2007, Adv. Michael Sfard contacted the military on behalf of SHA’AL, an association connected to Peace Now, and demanded an explanation for the settlement in the central bus station compound in Hebron. Following his communication, an internal opinion was prepared by the military. The opinion established that the seizure of the area should be anchored in a written order. The opinion further established that the permission given at the time for the settlers to enter the compound lacked legal basis and would not have been given today. Lawyers representing the Hebron settlers obtained this opinion and submitted it to a military appellate committee in a proceeding which is not related to this compound specifically. This is how the opinion reached Adv. Sfard. All Peace Now had to do was turn to the court and demand that the military implement the necessary conclusion of its own legal position and evacuate the central-station settlers.[2] Following the petition, the military issued a written and temporary seizure order which did not include the area where the settlers live, as I have described. Yet, the state objected to the evacuation of the settlers from the compound.

This hot potato reached Justices Rubinstein, Vogelman and Amit. The legal situation was clear: justice was on the petitioners’ side. The state itself did not make a single substantive argument against the remedy sought by the petitioners. It only provided various preliminary arguments for its request to reject the petition. The state also warned against the broad repercussions of accepting the petition: addressing the issue, the state explained, might raise broader questions about many settlers living in the West Bank on lands which were seized over the years by way of military seizure.[3] The practical ramifications of a judgment that would compel the evacuation of the settlers from the compound hung in the air: Would the state execute the judgment, or is a judgment such as this an invitation for contempt by the authorities? And if the state did execute the judgment, what uproar could be expected? The justices undoubtedly remembered how bad conflicts that erupted in the few cases in which the state evacuated settlers from various locations had been.

The justices preferred not to intervene and rejected the petition out of hand without any reference to the substantive issues it raised. The petition, they ruled, was extremely delayed, particularly when it comes to a public petitioner rather than a party which is directly injured (such as the bus company or the City of Hebron).[4]

This means that the unlawful settlement in the central bus station in Hebron has (at least in the current circumstances) legal immunity. The seizure order for the military base remained formally temporary and will expire at the end of 2013. However, the so called “temporary” settlement, built on an area for which the military commander was somehow incapable of issuing a seizure order, enjoys a quasi principle of “limitations”. Thus, under the patronage of the court, criminal behavior becomes a fact on the ground and temporariness eternal.

Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.

HCJ 469/83 United National Bus Company Hebron LTD v. Minister of Defense (1992), judgment of April 1, 1992.
HCJ 6492/08 SHA’AL – Peace Now for Israel Educational Enterprises v. IDF Commander in the West Bank (2010), petition of July 21, 2008.
See summary of the state's position (in Hebrew) on the Military Advocate General website.
See above note 2, judgment of January 14, 2010, para. 5. (02) 627 1698   (02) 627 6317

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