International Law

Israel’s Supreme Court Issues Regressive Judgment on West Bank Deportations

By Amichai Cohen, Yuval Shany
Thursday, May 19, 2022, 9:26 AM

On May 4, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ), issued its long-awaited judgment in Abu Aram v. Minister of Defence—a dispute concerning the designation of an area in the southern part of the West Bank as a closed military area. Litigation started in 1997, and the judgment, issued 25 years later, rejects all claims made by Palestinians adversely affected by the closing of the area. Justice David Mintz wrote the leading opinion, and the other two justices in the panel, Isaac Amit and Ofer Grosskopf, concurred in very short opinions that added minor comments about expected post-judgment developments (calling for practical arrangements allowing for limited presence of the petitioners in the closed military area). 

The judgment marks a regressive trend in which HCJ justices uncritically apply old rulings on international law doctrines to belligerent occupation situations. Rulings such as the one adopted in this case, concerning the application of the Fourth Geneva Convention in the West Bank and the proper interpretation of Article 49, put the court at odds with international law. It also places at risk state officials who will violate international law when relying on the court’s judgments. 

The petition in Abu Aram was submitted by hundreds of Palestinians living in the outskirts of the village Yata (Masafer Yata), an area located in the southern part of the West Bank, which Israel has occupied since 1967. The petition challenged the legality of a 1980 order issued by the Israel Defence Forces (IDF) military commander of the area, who declared an area of approximately 30,000 dunams (7,500 acres) as a “closed military firing zone,” in which the military conducts training using live fire (the area was dubbed “firing zone 918”). The petitioners were thus prevented from entering the area during most of the year, even though it was uncontested that they owned parts of the area and used it for farming and grazing. Military authority permitted entry into the area only during weekends and, on an annual basis, during the two months of planting agricultural crops. Some petitioners further alleged that they had been living in the area on a permanent basis, even before it was designated as a firing zone—a claim that IDF authorities contested by submitting aerial photographs to disprove the petitioners’ claim. Ultimately, the petitioners claimed that the military commander lacked authority under both international law and the relevant security legislation applicable in the West Bank to issue the order designating firing zone 918 as a closed military area. 

The recent judgment is the latest in a string of HCJ decisions dealing with challenges to the aforementioned military order. In the past, the court seemed attentive to the claims of the petitioners and recommended that the parties reach a compromise settlement. In its May 4 judgment, however, the court reached a clear-cut outcome: The petition was denied, and all the petitioners’ claims were rejected. According to the court, the closed area order was lawfully issued and the IDF showed that the petitioners who settled in the area did so only after its promulgation. The judges, especially in the addendums of Justices Amit and Grosskopf, urged the government to continue discussions with the petitioners concerning practical arrangements in the area but placed no specific duty on the state to reach an agreement with them. 

A major part of the judgment consists of a factual discussion of the question of whether the petitioners resided in the area on a permanent basis before the 1980 order. It also covered whether the delay in submitting the petition was excessive in nature and whether the petitioners violated provisional measures orders issued by the HCJ that required both parties to maintain the status quo on the ground (including a ban on construction of new dwellings in the area). A much smaller part of the judgment discussed substantive law, especially the international laws of belligerent occupation. As explained below, it’s our view that this small but important part of the judgment was handled unsatisfactorily. The judgment not only contains an erroneous interpretation and application of international law, but it also deviates from past judgments of the HCJ itself. 

The Court’s Unsatisfactory Treatment of International Law

The contested area lies within the West Bank, an area that Israel has occupied and maintained under military control since 1967. The official position of the Israeli government is that the West Bank is disputed territory and not fully occupied territory. But the HRC’s judgments dating back to the early 1970s applied parts of international belligerent occupation law to the West Bank. Still, the court’s early jurisprudence drew a distinction between provisions of the law of occupation derived from the Hague Regulations of 1907 and those included in the Fourth Geneva Convention. The court held that the Hague Regulations reflected customary international law and were thus automatically applicable in Israeli court (since, in Israeli law, customary international law is part of the law of the land). By contrast, it considered the Fourth Geneva Convention to be merely “treaty law,” which according to Israeli doctrine on incorporation (based on the British model) is not applicable in Israeli courts unless “absorbed” into Israeli law by statute. As a result, in the early days of occupation, the HCJ refused to apply the Geneva Conventions. 

The court has since abandoned that distinction. In recent decades, the court has regularly invoked norms included in the Fourth Geneva Convention as a constraint on the authority of the IDF military commander. In some cases, the HCJ justified its readiness to apply the Fourth Geneva Convention by reference to an official declaration by the Israeli government that it will apply the humanitarian provisions of the convention notwithstanding the doubts surrounding its relevance to the West Bank. Israel has traditionally claimed that the Fourth Geneva Convention applies only to cases involving the occupation of the sovereign territory of another state and that the West Bank did not meet this definition. In other cases, the court applied the Fourth Geneva Convention without any discussion, and yet in other cases, it used the convention as a source of interpretation (under Israeli law doctrine, treaty law can be used for interpretation of domestic law even if it has not been incorporated into domestic law). Academics following this jurisprudence construed the evolving position of the court as an implied acceptance of the customary international law status of the Fourth Geneva Convention without the court having to renounce its earlier precedents. In Abu Aram, the state stated expressly that the court is not requested to discuss the applicability of the Geneva Convention or its customary nature. 

Justice Mintz has completely ignored this complex history of gradual acceptance of the applicability of the Fourth Geneva Convention. Instead, based on pre-1990s precedents, he declared that the Fourth Geneva Convention is not part of customary international law and is inapplicable to the case. 

As an alternative track, Mintz also maintained that even had Article 49 of the Fourth Geneva Convention been applicable, it would not have supported the petitioners’ case. Mintz argued that the article was designed to prohibit mass transfers or deportations for purposes of destruction or forced labor or for political purposes. This is yet another misinterpretation, as Article 49(1) clearly and explicitly prohibits all “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” It also applies regardless of the occupying power’s motivation for the transfer or deportation. In other words, there is no relationship between Mintz’s construction of the intention of Article 49 and the actual language of Article 49 or the extensive literature on its proper interpretation. In fact, Article 49 allows transfers in one particular set of circumstances—evacuation for the security of the population or imperative military reasons. However, Mintz did not even mention this exception, nor did he evaluate whether the IDF met the high burden specified in the second paragraph of the article.

Mintz’s particular interpretation of Article 49 rests on the 1988 Afu case, in which the court approved deportations of individuals suspected of involvement in terrorism based on the logic that the prohibition was intended to apply only to mass deportations. However, the Afu case was heavily criticized for its treatment of Article 49, and such criticism eventually led Israel to altogether abandon the policy of deportations out of the occupied territories. Subsequent decisions of the HCJ even suggest that the court realized the problematic nature of the Afu judgment and might have been open to changing it, had the state not abandoned the policy (see, for example, the Ajuri case, 2003). Still, Mintz’s judgment not only reaffirms the Afu decision but also goes beyond it. In Afu, the deported person was an alleged security threat. No such claim was raised against the hundreds of petitioners in the Abu Aram case. They simply lived in an area that the army wished to utilize for training with live fire (or, as some civil society activists maintain, in an area from which Israel wanted to exclude Palestinians). 

The upshot of these interpretive positions is that the court did not properly consider the applicability of the most relevant provisions of the laws of belligerent occupation to the circumstances of the case, nor the possible justification for invoking the only exception thereto. In particular, it did not consider the one pertinent question concerning the application of Article 49: Does it cover situations of forcible transfer of local residents from areas in which they do not allegedly dwell permanently, but habitually utilize in other ways? In our view, the article should be read broadly so as to accommodate indigenous practices involving the seasonal use of land; but even if it should not, there is nothing in the judgment that explains the restrictive interpretation of the linkage requirement between the local population to the area from which the transfer or deportation is ordered. 

The short legal analysis pertaining to Article 49 contains another troubling aspect: Justice Mintz noted that even were it applicable, the article would have been superseded by conflicting provisions of Israeli legislation. It is not completely clear what legislation Mintz had in mind. He alludes to the 1945 Defence Regulations, which were incorporated after 1948 into both Israeli and Jordanian law—and which still serve as the local law of the West Bank. He also refers to military regulations authorizing the designation of areas as closed military areas. To the extent that Mintz intended to treat the latter as superseding law, this is a clear misinterpretation, as the IDF’s power of regulating the West Bank emanates from international law and not from Israeli legislation (Israeli law does not apply, in general, to the West Bank). But even the ability to rely on the Defence Regulations is highly controversial. Although earlier court decisions have done so, relying on the “respecting … the laws in force in the country” language of Article 43 of the Hague Regulations, they have been criticized for failing to consider the extent to which the laws of belligerent occupation limit the ability of the occupying power to rely on domestic law to remove or weaken international protections afforded to the local population. In any event, the HCJ has taken the position that all laws and decrees authorizing the IDF to act have to be construed in light of the international undertakings of the state of Israel (notably in the Ajuri case in 2003)—a position wholly missing from Mintz’s opinion. 

Finally, the judgment lacks an analysis of the international legality of the very designation of firing zone 918. While it is not improbable for a military based in an occupied territory to hold certain training activities, the designation of a large swath of land as a no-go area for decades requires a strong legal justification. The failure of the court to discuss these issues is especially glaring because the petitioners claimed that at least 40 percent of firing zone 918 is privately owned. Hence, limitation of the use of private property should have been subject to even stricter scrutiny. The judgment lacks an explicit discussion of that key legal question, including whether training meets the tests of imperative military reasons or military necessity in order to infringe on rights of protected persons laid out in the Hague Regulations’ Article 52 and the Fourth Geneva Convention’s Articles 27 and 49(2). Even if the area in question offers unique advantages for military training purposes, under international law, as applied by the HCJ in the past, a proportionality analysis should have been called for comparing the alleged military advantage to the harm to the rights and interests of the petitioners. No such analysis is found in the judgment. 

Back to the Past?

The judgment of the HCJ focuses not on international law, but on admissibility issues and evidentiary matters. This is indicative of the increasingly marginal role of international law in the court’s jurisprudence—a phenomenon we have dealt with elsewhere. In some cases, the court has relied instead on Israeli constitutional law notions as a source for protecting the rights of West Bank Palestinians such as in the Silwad case in 2020. In Abu Aram, the court did not come up with any alternative protection scheme—essentially sending the Palestinian petitioners to renegotiate the terms of their exclusion with the IDF

Justice Mintz’s anachronistic use of international law leaves much to be desired. He simply overlooks recent developments in international law and, in part, ignores the court’s own jurisprudence. This is not a singular occurrence, however. In another decision, issued several months ago, Justice Alex Stein used language from court judgments from the 1970s suggesting that the construction of settlements contributes to the security of the area—an unlikely claim that has not been in HCJ judgments from the recent decades. Hence, some of the more conservative justices may be trying to turn back the clock and return to an era in which international law was both a marginal constraint on decision-making and completely malleable in its contents. The other more liberal justices on the bench did not even comment on the problematic approach taken by Justice Mintz. This suggests that they have a limited interest in putting up a fight on this issue or around the facts of the case.

Judgments like Abu Aram are not only incompatible with international law, but they also push Israeli policies beyond the pale of international legality and put state officials at risk of international criminal prosecution.