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COURT WATCH - Criticism

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Dispossession under the Supreme Court's Watchful Eye – On Beit Hadassah in Hebron: HCJ 175/81 Al Natsheh v. Minister of Defense (Judgment of May 19, 1981); HCJ 72/86 Zalum v. Military Commander (Judgment of March 9, 1987); HCJ 7007/03 Kawasmi v. Military Commander (Judgment of April 19, 2005)
Criticism  |  175/81, 72/86, 7007/03  |  1.12.2013  |  Adv. Yotam Ben-Hillel
Dispossession can be done in many different ways. It is often no simple task to uncover these different methods, which are sometimes hidden between the lines of military orders or regulations and legal casuistry. Sometimes, however, dispossession is so obvious that there is no need to uncover it. On even rarer occasions, the entire process is “attended” by the court, which has the power to eith...
The Application of the Absentee Property Law in East Jerusalem: CA 54/82 Levy v. ‘Afaneh (Judgment of February 19, 1986)
Criticism  |  54/82   |  1.10.2013  |  Adv. Yotam Ben Hillel
The Absentee Property Law, passed in 1950, is a pivotal statute in a series of legislative pieces that allowed Israel to take over the property of Palestinians who were expelled or fled during the war of 1948. It is a draconian law which severely interferes with the private property of persons deemed “absentees”.The law put absentee property in the hands of a public agency instituted for this s...
A Chain of Errors: CC (Jer.) 2347/04 Abu Judah v. the State of Israel (Judgment of August 17, 2008)
Criticism  |  2347/04   |  1.10.2013  |  Adv. Yossi Wolfson
Criticism
The time: Friday, February 22, 2002 at about 2:20 P.M. The place: The village of Beit Umar near Hebron. Murad Abu Judah, 13 at the time, was playing war games with his friends: He was an Israeli soldier and his friends were Palestinians. Murad held a plastic toy rifle which he had bought earlier in the day and “fired” at his friends. While the children were playing, Israeli soldiers entered the...
On Blindness: HCJ 5373/08 Abu Libdeh v. Minister of Education (Judgment of February 6, 2011)
Criticism  |  5373/08  |  1.1.2013  |  Adv. Clara Unger
Criticism
In 2011, the High Court of Justice (HCJ) issued a judgment in this case, which involves the right to education and equality in education for the children of East Jerusalem. It was issued after about a decade of deliberations. This commentary briefly addresses the results of this judgment, in the context of a previous case in which the HCJ intervened in order to uphold the right to education of ...
Using “Security Grounds” to Legalize Illegal Settler Building: HCJ 4331/10 Municipality of Hebron v. State of Israel (Judgment of February 1, 2012)
Criticism  |  4331/10  |  30.12.2012  |  Adv. Yotam Ben Hillel
Criticism
When the High Court of Justice (HCJ) reviews the military's conduct in the Occupied Palestinian Territories (OPT), it routinely says that every Israeli soldier carries in his backpack the rules of customary public international law concerning the law of war and the fundamental principles of Israeli administrative law. This statement, which originates in the famous Jam'iat Iscan Al-Ma’almoun jud...
A Sewage Treatment Facility as a Parable: HCJ 4457/09 Mana’ v. Minister of Defense (Judgment of July 27, 2011)
Criticism  |  4457/09  |  1.12.2012  |  Adv. Clara Unger
Criticism
There is no longer a need to delve into poetry or prose.Reading the judgment and submissions in the Mana’ judgment reminds us that the metaphoric force of reality is as powerful as the inventiveness of a talented poet with the richest of imaginations.The stench, quite literally, of this case which found its way to the High Court of Justice (HCJ), reeks to high heaven. It is the case of a sewage...
The Killing of Ten-Year-Old Abir Aramin in the Village of ‘Anata: HCJ 5817/08 Aramin v. Attorney General (Judgment of July 10, 2011)
Criticism  |  5817/08  |  1.12.2012  |  Adv. Clara Unger
Criticism
One day in January of 2007, Abir Aramin from ‘Anata, left school during recess to buy a sweet. She was killed, most likely by a rubber-coated metal bullet shot by a Border Police officer. She was only ten years old. Unfortunately, the stress in the previous sentence is on the phrase “most likely”, which we are forced to add for the sake of caution, and because the incident never made it to cour...
A Story of Discrimination: HCJ 8806/10 Regavim v. Prime Minister (Judgment of September 4, 2011)
Criticism  |  8806/10  |  1.11.2012  |  Adv. Noam Zamir
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 A...
The Court Presumes: HCJ 5553/09 Public Committee Against Torture in Israel v. Prime Minister of Israel (Judgment of April 26, 2010)
Criticism  |  5553/09  |  1.11.2012  |  Dr. Na’ama Carmi
Criticism
In a High Court petition filed in 2009, the Committee Against Torture in Israel (PCATI), sought a complete ban on the use of the use of restraints as an interrogation method during Israel security Agency (ISA) interrogations; a ban on restraining in positions that cause humiliation, pain or suffering – with specific reference to several such positions, and publication of clear directives for re...
Purposive Interpretation: AAA 1966/09 'Attoun v. Minister of Interior (Judgment of November 22, 2011)
Criticism  |  1966/09  |  1.11.2012  |  Adv. Yossi Wolfson
Criticism
There is great rule in interpretation that a single term that appears in different statutes may have a different meanings in different statutes, according to the context and purpose of the law. This rule is connected to the principle of interpretation which governs Israeli jurisprudence – the purposive interpretation. The court is bound by the language of the law, but it does not read the text ...
Down the Slippery Slope: HCJ 2164/09 Yesh Din v. IDF Commander in the West Bank (Judgment of December 26, 2011)
Criticism  |  2164/09  |  1.10.2012  |  Adv. Clara Ungar
Criticism
In 1930, at the age of 61, Mahatma Gandhi led the famed Salt March. Gandhi walked for about 400 kilometers towards the Indian Ocean shore in order to produce salt using his own hands and a small cooking pot. He did this to protest the British monopoly on the manufacture of salt and the restrictions that prohibited Indians from making salt and forced them to buy it from the British Empire. Gandh...
To Prevent Ill Rumors: HCJ 3114/02 MK Barake v. Minister of Defense (Judgment of April 14, 2002)
Criticism  |  3114/02  |  1.10.2012  |  Adv. Yossi Wolfson
Criticism
The events that took place in Jenin Refugee Camp during the April 2002 Israeli military operation (known as “Operation Defensive Shield”), or rather, the fight over their representation, provided the background for a number of legal actions. One of them was heard very shortly after the incidents, before the bodies were buried. In fact, on the face of it, this action resolved the issue of the bo...
Order for a Moratorium on Settlement Construction and Some Comments on the Military Commander's Discretion: HCJ 9594/09 Legal Forum for Israel v. Ministerial Committee on National Security (Judgment of April 21, 2010)
Criticism  |  9594/09  |  1.10.2012  |  Adv. Noam Zamir
Though the days of the 2009 “moratorium” on building in the West Bank seem like a distant memory, a review of the High Court’s judgment on the moratorium order provides for an examination of one of the most important issues in the law of belligerent occupation: the powers of the military commander and his relationship to the government. This issue evokes some practical questions such as: Can th...
The Shelving of Complaints of Torture by the Israel Security Agency: HCJ 1265/11 Public Committee Against Torture v. Attorney General; HCJ 9061/11 Hutari v. Attorney General (Partial Judgment of August 6, 2012)
Criticism  |  9061/11  |  1.9.2012  |  Adv. Keren Michaeli
Criticism
The subject of these petitions is the Attorney General’s procedure for handling complaints made by detainees regarding torture and ill-treatment during their interrogations by agents of the Israel Security Agency (ISA, formerly also known as the Shin Beit, or General Security Services, the GSS). About 600 complaints of this kind have been filed in the past decade[1] and all of them, to the ver...
The Status of West Bank Assets Owned by Jews Prior to 1948: HCJ 3036/03 Shlomo Valero v. The State of Israel (Judgment of February 6, 2011)
Criticism  |  3103/06   |  1.7.2012  |  Adv. Yotam Ben Hillel
Criticism
HCJ 3103/06 Sholomo Valero v. The State of Israel concerns the fate of assets in Hebron which were purportedly purchased by Moshe Valero, a Jewish man, in 1935. Valero passed away in 1945 and his property was divided between his three children. The petitioners in this case were two of his children and the heirs of the third.As is known, beginning in 1948, the West Bank was under the control of ...
Thoughts and Wishes – the High Court of Justice on the Separation between the Gaza Strip and the West Bank: HCJ 2088/10, 4019/10 HaMoked: Center for the Defence of the Individual v. Commander of the West Bank (Judgment of May 24, 2012)
Criticism  |  2088/10, 4019/10   |  1.7.2012  |  Adv. Yossi Wolfson
Criticism
Two things can be expected in every judgment: an operative ruling and reasoning. A person who files a lawsuit for 100,000 dollars does not expect to receive at the end of the proceedings a document that says that “it may be appropriate for the Defendant to compensate the Plaintiff”, or a ruling that “the Defendant shall pay the Plaintiff 1,000 dollars” without explaining what happened to the re...
The Permit Regime in the “Seam Zone”: HCJ 9961/03 HaMoked: Center for the Defence of the Individual v. Government of Israel et al., HCJ 639/04 The Association for Civil Rights in Israel v. IDF Commander in the Judea and Samaria Area et al. (judgment dated April 5, 2011)
Criticism  |  9961/03  |  1.6.2012  |  Adv. Keren Michaeli
Criticism
In April 2011, the High Court of Justice (HCJ) upheld the permit regime imposed by the military on the entry of Palestinians into the “seam zone” in the West Bank. The “seam zone” is an enclave that was created as a result of the fact that the separation wall was built inside the Occupied Palestinian Territory (OPT). The enclave has trapped some 7,000 Palestinian residents and some 120,000 dun...
Administrative Detentions: HCJ 1389/07 IDF Commander in the Judea and Samaria Area v. Military Court of Appeals et al. (Judgment of February 28, 2007)
Criticism  |  1389/07  |  1.5.2012  |  Adv. Alon Margalit
Criticism
In a brief laconic judgment, the Supreme Court, sitting as the High Court of Justice (HCJ), approved the administrative detention order issued by the GOC Central Command against a Palestinian resident of the West Bank (HCJ 1389/07 Commander of IDF Forces in the Judea and Samaria Area v. Military Court of Appeals). At the time the petition was submitted, the detainee (the respondent in the petit...
Expropriation by Forestation: HCJ 704/85 ‘Attoun v. Ministry of Finance (Judgment of November 18, 1986)
Criticism  |  704/85  |  1.3.2012  |  Adv. Yotam Ben Hillel
Criticism
In Shakespeare’s classic tragedy, Macbeth, the protagonist, asks the three witches to tell him what his future holds. The witches assure him that he will be king as long as Birnam Wood does not advance toward his castle. The witches’ prophecy calms Macbeth, but later on, the English army cuts boughs from the trees of Birnam Wood and uses them as camouflage to advance toward his castle. Macbeth’...
Incarceration of Palestinians from the West Bank inside Israel – the Powers of the Military Commander: HCJ 2690/09 Yesh Din v. IDF Commander in the West Bank (Judgment of March 28, 2010)
Criticism  |  2690/09  |  1.3.2012  |  Adv. Alon Margalit
Criticism
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...
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