In one of the Israeli Supreme Court’s comprehensive judgments regarding the law applicable in the Occupied Palestinian Territories (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[1] was penned by Justice Procaccia wit...

One of the central tenets of the laws of occupation is that the discretion of the military commander of an occupied territory is constricted by two magnetic poles: the military needs of the occupying power on one hand and the interests of the population of the occupied territory on the other. The Supreme Court of Israel has ruled time and again that the military commander may not take the natio...

The Mara’abe judgment[1], like many Supreme Court judgments in the past decade, reads partly as a judgment and partly as a statement of defense or a polemic. The judgment concerns the legality of the separation wall in the segment south of Qalqiliya. In this particular segment, the wall penetrates deep into the West Bank, surrounds Alfei Menashe and creates territorial contiguity between this s...

In a different commentary on this website I addressed the Wajia judgment[1], in which the Supreme Court legitimized the operation of military courts established under the laws of the Occupied Palestinian Territories (OPT) inside Israel.Although Israelis staff governmental institutions both in Israel and in the OPT, these are two separate governmental apparatus. The Israeli apparatus is headed b...

In the beginning of the first intifada, Israel conducted mass arrests in the Occupied Palestinian Territories (OPT). Many detainees were transferred to a special holding facility built far away in Qetziot, in the Negev desert.In the Sajdiya judgment,[1] the Supreme Court reviewed a number of issues relating to the prison camp. The court instructed the military to resolve the issue of severe ove...

It is commonly accepted that law enforcement agencies have the authority to use force in order to apprehend suspected offenders. This authority is far reaching: it does not concern self defense or stopping the commission of an offense, nor use of force in order to enforce a served judgment. This is a secondary power which is adjunct to the power to imprison an individual for the purpose of clar...

For some 42 years, Israel has controlled the entire area between the Jordan River and the Mediterranean. On one hand, Israel treats this area as a single unit. On the other hand, it implements a regime under which one law applies to a certain segment of the population and another, military law, applies to another. The status of the West Bank and Gaza Strip as occupied territories is used to jus...

Twice the Supreme Court of Israel intervened and revoked military orders which had turned roads in the Occupied Palestinian Territories (OPT) into Israelis-only roads on which Palestinians are prohibited from travelling. Such roads have become a hallmark of Israeli Apartheid, though not necessarily the most profound expression of it. Thus, while the judgments are welcomed, it is interesting to ...

A civilian, resident of the occupied territory who is not taking part in combat, is injured in the course of security forces activity and suffers bodily or property damages. He files a compensation claim against the state with a court in Israel. Israeli statute determines that the state is not civilly liable and is exempt from paying compensation if the damage was incurred in the course of a “w...

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 (OPT) are only temporary: the settlements, the separation wall, the militar...

Forced military rule naturally arouses political resistance among those it subjugates. Hence, it inherently involves suppressing the political life of the subjugated population. In fact, suppression or manipulation of the political life is a necessary condition for the survival of oppression. Though this is self-evident, it is odd to see how a court in a self-professed democracy implements it w...

The status of the West Bank under international law as occupied territory is used by Israel to justify a regime of separation which employs two different legal systems, one for each of the population groups. This system essentially preserves the hegemony of the Jewish ethnic population over the Palestinian population (which is separated into a number of subgroups to each of which Israel applies...

In 2005, a young Palestinian woman from the Gaza Strip began her B.A. studies at the Bethlehem University. On October 28, 2009, as she was making her way home to Bethlehem from Ramallah, she was stopped by soldiers at a checkpoint. When they discovered that the registered address in her identity card was in the Gaza Strip, they informed her that without a stay permit by the military commander, ...

The bizarre case of retired judge Shlomo Bar’ali[1] demonstrates how deeply involved the Israeli court system is in Israel’s annexation project in the West Bank.The story begins with two dogs that were walking – so it is alleged – in the settlement of Maale Adummim. We do not know what exactly is alleged against Bar’ali, but let us assume that the dogs are his and that the retiree was going for...

It is commonly held that the role of Israel’s Supreme Court, sitting as the High Court of Justice (HCJ), is to provide recourse for ordinary citizens who believe their rights have been trampled upon by the authorities. Under this common perception the HCJ is the defender of civil rights, a counterforce against the regime’s crushing power. This is not accurate: the HCJ’s formal role is not to de...

“Sunlight is said to be the best of disinfectants”, said American Supreme Court Justice Louis Brandeis. Publicity is one of the main guarantees for good governance. This is one of the reasons why judicial hearings are held in open court. This is one of the reasons why democratic judicial systems detest secret detentions and secret prisons. Brandeis’ famous quote does not appear in the judgment ...

Palestinians from the West Bank are routinely transferred for arrest and incarceration in holding facilities inside Israel. Additionally, legal proceedings in the cases of Palestinians from the West Bank are held in military courts inside Israel. The petitioners, human rights organizations, argued in a High Court of Justice (HCJ) petition that the policy of holding Palestinian detainees and pri...

The Mubarak ‘Awad judgment[1] ostensibly contains exemplary legal analysis, marked by all the virtues of simplicity, consistency and conciseness. The judgment enlists its ingenious legal thinking to serve the suppression of the Palestinian uprising against the Israeli occupation (in the short term) and Israel’s demographic aspirations in East Jerusalem (in the long term). With the legal backing...

Unit 202 of the Israeli army is one of the most reputable as being a top operations unit. This is judicial notice; or so at least according to the verdict of the Jerusalem Magistrates’ Court (Judge Malka Aviv) in the matter of Abu Sneina. I will confess: the writer has no idea what unit 202 is, or what reputation it has gained. Maybe this is the root of the problem.The verdict concerns events t...

In 2003, HaMoked: Center for the Defence of the Individual filed a principled petition against the existence of a secret incarceration facility in Israel, facility 1391, which is located in a secret military camp in central Israel.[1] Testimonies that have been gathered by HaMoked revealed that under the shroud of secrecy and in the absence of public and legal scrutiny, detainees in the facilit...