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A Story of Discrimination: HCJ 8806/10 Regavim v. Prime Minister (Judgment of September 4, 2011)
Court Watch | 8806/10 | 1.11.2012 | Adv. Noam Zamir
Criticism
In the last few years, every once in a while, claims are made that settlers are discriminated against in the Occupied Palestinian Territories (OPT) compared to Palestinians. These claims, though they seem to have gained prominence in public discourse lately, are not actually new. For example, when the second Rabin government issued a partial moratorium on construction in the Judea and Samaria Area in 1992, some settlement local authorities petitioned the High Court of Justice (HCJ), arguing that the decision was discriminatory, compared to the treatment of Palestinians.[1] The HCJ dismissed both the petition and the claim of discrimination. Yet the claim persists, and has come up again in recent years, particularly with respect to enforcement against illegal construction. This commentary focuses on this claim of discrimination, raised again last year in the Regavim case,[2] and considers it in light of international law, and previous HCJ rulings on the issue.


The Regavim Petition
The story begins with the construction, without a building permit, of a school around the Palestinian village of Beit Sira, near Road 443. On August 3, 2010, after the authorities discovered the structure had been built, the Supreme Planning Council Subcommittee for Building Enforcement issued a stop work order. After further proceedings, a decision was made to issue a final stop work and demolition order for the building. On November 30, 2010, the Regavim association petitioned the HCJ for an order compelling the respondents to explain why they were refraining from taking all necessary measures to issue or execute the demolition order for the school. As part of its argument, the association claimed the building was “part of an official, programmatic plan by the Palestinian Authority to build schools and mosques in Area C in Judea, Samaria and Binyamin”.[3] The association also argued that the authorities’ failure to enforce the law with respect to the structure formed part of their complete disavowal of the obligation to enforce planning and building laws on the Palestinian population in the area, that this policy was unreasonable and that it discriminated against the Jewish residents of the area.[4]

The HCJ dismissed the petition, holding that neither the enforcement policy nor the priorities set by the authorities in this case were flawed in a manner requiring its intervention. The court noted that, as a rule, it would not intervene in setting priorities for law enforcement, unless the authorities completely or unreasonably avoided enforcing the law, or when the priorities are extremely unreasonable. The court accepted the respondents’ position that the main considerations in setting priorities for the enforcement of planning and building laws on Palestinians in the West Bank are security considerations, vicinity to communities, land ownership and substantive planning considerations. In this case, the HCJ accepted the respondents’ position that the building posed no security threat as it was located a fair distance from the main roads. The HCJ also accepted the considerations the respondents employed in their law enforcement policy, which included the advanced stage of construction at the time the case was opened, the fact that the building was located near Area B and the village of Beit Sira, the fact that it was meant to be used as a school for 400 students, and the fact that the European Union had been involved in building it. Therefore, the decision to put a relatively low priority on the demolition order for this particular building had not been flawed.

The aforesaid indicates that the special considerations regarding enforcement of planning and building laws with respect to the Palestinian population of the West Bank justified, in this case, the low priority given to the demolition order. Do these special considerations in fact result in discrimination against settlers? The HCJ did not address this question in its judgment. Before proceeding to examine this question in light of previous HCJ rulings on the issue, I will take a look at how international law distinguishes between the original population of the occupied territory and the population of the occupier present in it.


The Relationship between the Population of the Occupying Power in the Occupied Territory and the Local Population under International Law
The laws of occupation are composed of The Hague Regulations concerning the Laws and Customs of War on Land, annexed to the Fourth Hague Convention of 1907 and the relevant provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949. The powers of the occupying force revolve around two main axes, its own security interests and the benefit of the local population.[5]

The Hague Regulations do not spell out who the local population is and therefore, some scholars in the field maintain that the regulations protect anyone present in the territory.[6] On the other hand, the Fourth Geneva Convention stipulates its protections apply only “protected persons, and Article 4 excludes citizens of the occupying power from the definition of protected persons:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals...[7]

The status of protected persons is important not just due to the fact that the Fourth Geneva Convention provides broader normative coverage than The Hague Regulations, but also due to the fact that this status clearly signals that one of the major purposes of the laws of occupation is to protect the occupied population.

It should also be noted that alongside the laws of occupation, which hold the status of lex specialis in an occupied territory, international human rights law also applies as lex generalis.[8] Any gaps, or lacunas, left in the laws of occupation can be filled by referencing international human rights law either as a supplementary law or as an interpretive tool. International human rights law forbids discrimination and applies to anyone living in the occupied territory. However, given the higher normative order of the laws of occupation, the general application of human rights law both to the occupied population and the population of the occupying power, should not detract from the special status reserved for the occupied population.

Therefore, though international law does not directly address the occupying power’s authority to apply a different building and planning law enforcement policy toward the occupied population, it is reasonable to conclude that the special status afforded to this population justifies different treatment that is aimed at protecting it and is subject to the international obligations of the occupying power.


HCJ Jurisprudence on the Normative Status of Settlers and the Palestinian Population
Though the HCJ refused to adjudicate on the legality of the settlement enterprise per se,[9] it did recognize a distinction between the legal status of the Palestinian population and the settlers in the West Bank. And so, though the HCJ noted that under The Hague Regulations, settlers are considered part of the local population and therefore the military commander must see to their interests as well as the Palestinians’,[10] only the Palestinians are considered protected persons.[11]

The special status of the Palestinian population served as a major consideration in the jurisprudence of the court with respect to allegations of discrimination against settlers compared to Palestinians. For instance, in a ruling on the legality of a moratorium on construction in the West Bank, the petitioners argued that such moratorium in the settlements was discriminatory compared both to Palestinians and to Israelis within the Green Line. The HCJ rejected this claim, noting:

Claims of this sort have been presented to this Court in the past in similar contexts, and rejected on the basis of the ruling that the distinction between Israeli residents of the Area and the two aforesaid groups constitutes a permissible distinction stemming from the pertinent differences between Israeli residents in the Area and its Arab residents, who are protected persons under international law, and between them and Israeli residents living inside the Green Line.[12]

A similar ruling was made in the Kiryat Arba judgment, a case that revolved around the policy of the second Rabin government, which, for the first time, halted investment in the settlements.

The allegation of discrimination compared to Arab residents of the Area cannot stand. This is not discrimination as there is no room for comparing between the types of communities and the types of population in the first place. This is not discrimination, but permissible distinction as there is a pertinent difference between the populations and the laws applicable to them... Moreover, even if we were to compare between the communities and the populations (and, as stated, in my view there is no room to compare) we must remember that whenever an allegation of discrimination is made, we must examine the situation in its entirety. For many years, government policy granted many benefits to Israeli communities in Judea and Samaria… Such that, evidently, one cannot speak of discrimination without looking at the situation as a whole and over time, and when we do, we discover that Jewish communities have received a great variety of benefits over the years. Now, with the change in government policy, new conditions have arisen which the Petitioners claim are discriminatory. As I explained, this is not discrimination as there is no room to compare the two types of communities to begin with...[13]

And so, the HCJ has already determined that the distinction between the Palestinian population of the OPT and the settlers is lawful and stems from the difference in the laws applicable to these two populations and their normative status. Any attempt to draw parallels between building and planning law enforcement in the Palestinian population and the settler population must take into account the special status of the Palestinian population.


Conclusion
This commentary did not address the question of whether there is in fact discrimination against settlers. It rather focused on contrasting the occupied population and the population of the occupier, looking at the degree to which they share the same normative status in terms of international law, and whether there are grounds to claim that favorable treatment toward the occupied population, as compared to the population of the occupier in the OPT, constitutes discrimination. Given that the occupied population is protected under the Fourth Geneva Convention, and given the purpose of the laws of occupation, which are meant to protect the population of the occupied territory, the answer to both these questions is undoubtedly negative.

Clearly, under both Israeli and international law, the authorities in general and the military commander in particular, have a duty to enforce the law on anyone in the occupied territory. Clearly, failure to enforce the law undermines the rule of law, or, in the words of the HCJ: “The law is the law. ‘Priorities’ is not a magic word, and the authorities have a responsibility to constantly reassess both priorities and their implementation”.[14] However, the authorities do have discretion with respect to enforcement priorities, and as part thereof, there is room to consider the special normative status of the occupied population given the purpose of the laws of occupation, which were meant, inter alia, to protect this population. Therefore, not only can the special status of the Palestinian population justify instituting different rules that benefit it, but it can also justify different priorities in enforcement vis-à-vis illegal construction in the West Bank.

Finally, it should be noted that any claim made by settlers about discrimination could very well be a double-edged sword. If we do accept that the state in general and the military commander in particular must implement an equitable policy with respect to the two populations, surely the question of whether the preferential treatment of the settlers in terms of infrastructure in Area C is not discriminatory, compared to the treatment of Palestinians would arise. Discrimination arguments can work both ways, and it is unlikely that the settler public is the disadvantaged group in this legal debate.


Adv. Noam Zamir
The author is a lawyer and an international law PhD candidate at Cambridge University.


[1] 
HCJ 4400/92 Kiryat Arba Hebron Local Council v. Mr. Yitzhak Rabin, Prime Minister (1994) judgment of July 2, 1994 (in Hebrew).
[2] 
HCJ 8806/10 Regavim v. Prime Minister (2011), judgment of September 4, 2011.
[3] 
Ibid., para.  2.
[4] 
Ibid.
[5] 
The HCJ has often repeated this; see, e.g., HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983; HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel (2004), judgment of June 30, 2004, para. 34 of President (emeritus) Barak.
[6] 
See, e.g., Yoram Dinstein, The International Law of Belligerent Occupation (2009), p. 60.
[7] 
[8] 
[9] 
HCJ 4481/91 Bargil v. Government of Israel (1993), judgment of August 25, 1993.
[10] 
See, e.g., HCJ 7957/04 Mara'abe v. Prime Minister of Israel (2005), judgment of September 15, 2005, para. 18 of the opinion of President (emeritus) Barak (see also commentary on this judgment). For our purposes, there is no need to get into the important discussion on the classification of Jewish residents of the West Bank as part of the local population under The Hague Regulations. Suffice it to note that even according to the HCJ, the Palestinian population has the special status of protected persons under the Fourth Geneva Convention which justifies separate treatment. See, e.g., HCJ 2150/07 Abu Safiya v. Minister of Defense (2009), judgment of December 29, 2009, para. 35 of the opinion of Justice Vogelman (see also commentary on this judgment); HCJ 9594/09 Legal Forum for Israel v. Ministerial Committee on National Security (2010), judgment of April 21, 2010 (in Hebrew), para. 19. For a critique of the classification of settlers as part of the local population under The Hague Regulations and the applicability of international human rights law in situations of occupation, see Aeyal M. Gross, “Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?”, EJIL, Vol. 18:1 (2007).
[11] 
See, e.g., ibid., Mara'abe and Abu Safiya, para. 20 of the opinion of Justice Vogelman.
[12] 
See above note 10, Legal Forum for Israel, para. 19.
[13] 
See above note 1, para. 19.
[14] 
HCJ 5377/09 Regavim v. Minister of Defense (2011), judgment of August 10, 2011 (in Hebrew), para. 9; cited in Regavim, above note 2, para. 7.
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