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Tel Aviv, May 05 – the Israeli Supreme Court rendered late last night, on the eve of Israeli Independence Day and during media slow down, a landmark judgment, ending litigation of over 20 years, permitting the ethnic cleansing of Masafer Yatta, South Hebron Hills.i,ii,iii,iv The judgment, which stands contrary to international law, permitting an explicit War Crime, cements the role of the Israeli Supreme Court as a central pillar of the Israeli Apartheid regime.
The Masafer Yatta judgment
The Association for Civil Rights in Israel, which represented the Palestinians in this case, issued an unusual statement this morning.
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Notable Human Rights attorney Michael Sfard has also issued an unusual statement, emphasizing the fundamental “embarrassing legal mistake” in the Supreme Court’s judgment, which rules that the prohibition of “forcible transfer” of civilians in an occupied territory is not part of binding International Law.
Sfard reminds us that “forcible transfer” of civilians in an occupied territory is defined as a War Crime in the Charter of the Nuremberg International Military Tribunal (1945), is prohibited in the Geneva Convention (1949), and is defined again as a War Crime in the Rome Statute (1998), which establishes the Hague International Criminal Court.
Furthermore, Sfard notes that the prohibition of forcible transfer of civilians in an occupied territory goes much further back, to the Lieber Code (1863), summarizing Law of War of the time, issued by Lincoln during the Civil War as a binding order to the Union forces.
Figure. Attorney Michael Sfard, May 05, 2022: “Lincoln issued a binding order, later known as the ‘Lieber Code’. Article 23 established the most fundamental prohibitions: ‘Private citizens [in an occupied territory – MS] are no longer murdered, enslaved, or carried off to distant parts’”.
https://twitter.com/sfardm/status/1522120614210908160?s=20&t=aaslLffmdmF-lgaElC7OkA
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Others noted that the judgment, rendered by a panel of 3 justices, was authored by Justice David Mintz, UK born immigrant and one of 2 settler justices of the Israeli Supreme Court.Needless to say, an Israeli court would have permitted the eviction of Jewish Israelis for the purpose of creating a military firing zone neither from their lawfully owned homes within the internationally recognize 1949 borders, nor from illegal settlements in the Occupied Palestinian Territories. Both within the 1949 borders and in the Occupied Palestinian Territories, Jews are subject to the Civil Law. Palestinians in the Occupied Territories, on the other hand, are subject to Martial Law. Accordingly, the eviction notices, now approved by the Israeli Supreme Court, were issued pursuant to Martial Law. Therefore, yesterday’s ruling again demonstrates the fundamental nature of the Israeli Apartheid regime – two separate and unequal legal systems are applied in the same territory to two ethnic populations - Jews and Palestinians.
A 1981 “Settlement Committee” protocol was filed as part of the evidence, where Minister A. Sharon explicitly stated that declaring the military firing zone in Masafer Yatta was intended “to keep the area in our hands”. Justice Mintz judgment rules that the statement did not impress him, since it was general and lacked specific context.
In fact, the context of yesterday’s ruling starts from the 1967 “Alon Plan”, which immediately following the 1967 war designated parts of the West Bank, including Masafer Yatta, for annexation to Israel, in violation of International Law.
Figure. Colonel Eynav Shalev quotes from 2014 Knesset Committee hearing.v
---Later, in 2014, the purpose of military firing zones as an instrument for Ethnic Cleansing was explicitly stated in a Knesset Foreign Relations and Security Committee protocol, where Colonel Eynav Shalev refers to Palestinians as “crabgrass”, which should be trodden upon. Colonel Eynav Shalev further testifies regarding seizing basic possessions as a means of clearing the area of the “crabgrass”: “In places, where we significantly reduced the frequency of military drills, crabgrass has grown… When you hit them on the nose, when you seize dozens of large, expensive tents, it isn’t easy. It isn’t simple to recover.”
In recent years, the same area is also the site of routine pogroms against Palestinians by Jewish settlers in collusion with the Israeli occupation forces. Such pogroms are perpetrated almost on a daily basis, with impunity.
https://twitter.com/JalalAK_jojo/status/1442887100186177537?s=20&t=Y5_8NvVOFEzgfPOBiKj-9g
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Yesterday’s ruling highlights the Israeli Supreme Court’s role as a central pillar of the Apartheid regime and Ethnic Cleansing practices, while purporting to provide them legitimization.
Settlement Regularization judgment
The convoluted, legally dubious nature of the Israeli Supreme Court’s rulings pertaining to the Occupied Palestinian Territories is even better reflected in the June 2020 judgment, which strikes down the Settlement Regularization Act (2017).i,ii,iii The judgment was written by Presiding Justice Esther Hayut and was concurred by 8 of the 9 justices, who were part of the expanded panel (settler Justice Noam Solberg dissented). The Act itself prescribed that the status of illegal Jewish settlements in the Occupied Palestinian Territories, which had been illegally built, even by Israeli law, on privately owned Palestinian lands, would be retroactively koshered by confiscating such Palestinian lands. The baffling judgment is based on the right of Palestinians to non-existent “Constitutional Right” for Equality under the Israeli Apartheid regime.
Any ruling by the Israeli Supreme Court, which strikes down acts of the Knesset is controversial, since the State of Israel has no agreed upon constitution. The Israeli Supreme Court ruled that the Israeli Basic Laws were a constitution in progress, which provided the Supreme Court the power to conduct judicial review of the acts of the Knesset and declare them “unconstitutional”. However, the State of Israel is perhaps unique among all nations in that a large portion (close to half) of the Israeli legislature does not share that view of the Israeli Supreme Court.
A series of Israeli legal scholars have analyzed the unusual Settlement Regularization judgment. Senior law professor Menachem Mautner refers to the judgment as “surrealistic”:iv
“Reading these dozens of pages I find it hard not to recall the ‘Garden of Eden of judicial concepts’ of 19th century German legal scholar Rudolf von Jhering. Such Garden of Eden has no relationship to reality… It is written out of any context. As if the occupation is not based on a clear hierarchy between Jews and Palestinians, where the regime acts in any given moment to advance the rights of Jews over those of Palestinians and to harm Palestinians’ dignity.”
The judgment starts by stating that the Palestinian Territories are held under “Belligerent Occupation” pursuant to International Law (as other Israeli Supreme Court’s judgments have stated for decades). Then it continues to apply in the case at bar the Israeli Basic Law: Human Dignity and Liberty, although under International Law, laws of the Occupying Power do not apply in the territories under Belligerent Occupation. Moreover, the notion that Equality, Dignity and Liberty can be applied to the situation of the Palestinians in the occupied West Bank defies commonsense.
Senior law professors Yuval Shani and Amichai Cohen have written an extensive analysis of the judgment as well.v They note that the judgment is a critical turning point in the long process, where the Israeli Supreme Court is supporting the “creeping annexation” of the Occupied Palestinian Territories. They too note that the dramatic change here was in the application of Israeli law in general and the Basic Law: Human Dignity and Liberty in particular in this case. The absurdity of applying adjudication, based on Equality in Constitutional law in this case does not escape them either. However, they view it in the general context of “demise of the occupation paradigm”. Occupation in International Law was expected to be a short-lived, transient situation. After over half a century, one can no longer be effectively apply Belligerent Occupation in International Law to the situation on the ground in the Occupied Palestinian Territories. Cohen and Shani see the Supreme Court’s resorting to Israeli “Constitutional law” as a mechanism used by the justices to fill the void. In the process, the Supreme Court accepts the unlawful act of the Israeli Knesset – legislation pertaining to the Palestinian Occupied Territories, where the “Protected Civilians” in International Law - the Palestinians - have no voting rights and no say regarding acts of the Knesset. However, Shani and Cohen find merit in the judgment, in the sense that it recognizes the inequality between settlers and Palestinians. One is hard pressed to find that finding by the Supreme Court a particularly insightful or progressive ruling. The inequality is structured, abusive and at time lethal.
More absurd yet - the Settlement Regularization judgment refers to “Equality” 45 times, although “Equality” is never mentioned in the Israeli Basic Law: Human Dignity and Liberty. Equality appeared in early drafts of the Basic Law, but was deleted from its final language, since had it appeared in the law, it wouldn’t have passed… Equality under the law was instead construed by Israeli Supreme Court rulings, but in a limited, ambiguous way – it exists only when inequality harms Human Dignity…
The Nation-State judgment
Inequality, in contrast, explicitly appears in the Israeli Basic Law: Israel as the Nation-State of the Jewish People. Article 7 to the Basic Law explicitly prescribes: “The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation”.vi,vii Indeed, over the State’s 74 years, it has built some 700 settlements for its Jewish citizens, but none at all for its Palestinian citizens (needless to say – its Palestinian non-citizens in the West Bank).viii However, the 2021 landmark judgment, also written by Supreme Court Presiding Justice Esther Hayut, concurred by 10 of the 11 justices of the expanded panel (Palestinian-Israeli Justice George Kara dissented), rules that the Basic Law: Israel as the Nation-State of the Jewish People, should not be struck down, since it can can be interpreted in a manner that does not contradict Equality as “Constitutional principle”.ix The Nation-State judgment refers to “Equality” 384 times, at times as a “fundamental Constitutional principle”, or “fundamental principle of our justice system”.x
Israeli Supreme Court and its justices are a central pillar of the Apartheid regime
In 1973, the UN General Assembly adopted the Apartheid Convention, making Apartheid a Crime against Humanity – part of the top tier of crimes in international law, together with Genocide. xi
In addition, the Rome Statute, which established the Hague International Criminal Court (ICC), was adopted in 1998. Article 7 of the Rome Statute also establishes Apartheid as Crime against Humanity. The Statute was signed by 139 nations.
It is also remarkable that in 1973 only four nations opposed the UN General Assembly adoption of the Apartheid Convention: South Africa , Portugal (then a dictatorship), US & UK. Likewise today, US & UK today are the key supporters of the Israeli Apartheid regime. The recognition of the state of affairs in the State of Israel and Occupied Palestinian Territories as an Apartheid regime has dramatically expanded over the past couple of years.xii,xiii,xiv
There is no doubt that the majority of the Jewish Israeli voters supports the current state of affairs. A significant minority of Jewish-Israeli voters also support permanent delegation of non-Jews to non-citizen, non-voter status, mass expulsion of Palestinians, or worse.xv These ideas are part of public political discourse by Jewish-Israelis, including their political leaders, and the law pertaining to incitement for violence and racist incitement is not enforced on them. Any Palestinian (Israeli citizen or non-citizen in the West Bank) who would express similar ideas relative to Jews is harshly punished.
Under such circumstances, the Israeli Supreme Court plays a key role in forming and shaping the Israeli regime in general, and its conduct in the Occupied Palestinian Territories in particular. In its ruling over the past decades, the Supreme Court has continuously undermined the limits on actions of an Occupying Power in an occupied territory pursuant to International Law.xvi,xvii First and foremost – the Supreme Court effectively purports to provide legitimacy to the Jewish settlements in the Occupied Palestinian Territories, in blatant violation of International Law.
In his book “The Wall and the Gate”,xviii attorney Michael Sfard discusses the predicament of South African judges under Apartheid. Sfard refers to South African law professor Raymond Wacks’s 1983 call for South African judges to resign, which gave rise to a heated debate at that time.xix,xx Wacks asserted that a judges, who opposed the racial discrimination and oppression, typical of the Apartheid regime, falsified their judicial duties in their rulings, by trying to mitigate the true nature of Apartheid law, and furthered Apartheid by providing it legitimacy. Wacks explicitly accused such judges of lying.
One of the responses, by South African law professor John Dugard argued that the situation was not that clear cut, since South African law still maintained the foundation of natural law and legality.
It is remarkable that similar discussion it taking place today among Israeli judges and Israeli legal scholars. Israeli Human Rights organization B’tselem describes the situation as “Fake Justice”.xxi In the years following his retirement, Israeli Supreme Court Presiding Justice Aharon Barak has repeatedly stated that he regrets his own judgments that permitted demolition of Palestinians’ homes as a form of collective punishment – an explicit War Crime in International Law.xxii,xxiii More significant is the case of retired Justice Menachem Mazuz. Mazuz abruptly retired in 2021, well before his legal retirement age. In a December 2021 interview, Mazuz openly states that he resigned from the Supreme Court since he wasn’t willing to be part of a court that approved the demolition of Palestinians’ home – an illegal collective punishment.xxiv
Summary
Viewing the situation inside the State of Israel today, one can identify two central pillars of the the Apartheid regime:1. The Israeli Supreme Court – which purports to provide it legitimacy through its convoluted judgments, defying commonsense, and
2. Religious Zionism – which provides the underlying deviant, racist Jewish ideology, glorifying the Apartheid regime as fulfillment of biblical commandments.xxv
The combination is neither unique, nor original. The French political science and legal scholar Frédéric Bastiat (1801-1850) wrote: “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.”
Viewing the international area today, the two key international patrons of the Israeli Apartheid regime are the US and UK, which were also the staunch defenders of the South African Apartheid regime.
LINKS
i Hagar Shezaf, Israeli Top Court Approves Eviction of Eight Palestinian Villages After Decades-long Battle, Haaretz (2022)
ii “Dangerous” Israel High Court of Justice decision permits forcible transfer of Palestinians in Masafer Yatta,NRC (2022)
iii Bethan McKernan, Israeli court paves way for eviction of 1,000 Palestinians from West Bank area, The Guardian/UK (2022)
https://www.theguardian.com/world/2022/may/05/israeli-court-evict-1000-palestinians-west-bank-area
iv Joseph Kraus, Israel upholds expulsion order against West Bank hamlets, Washington Post (2022)
v Amira Hess, IDF admits: Military drills in firing zones in the West Bank are intended to remove Palestinian residents, Haaretz (2014)
vi Tamar Hostovsky-Brandes, Silwad Municipality v. The Knesset: The Invalidation of the Settlement Regularization Law and its Aftermath, I·CONnect Blog (2020)
vii Israeli Supreme Court strikes down the ‘Land Regularisation’ Law but fails to condemn illegal settlements and their expansion,LPHR (2020)
viii Initial Analysis of the Israeli Supreme Court's Decision in the Settlements Regularization Law Case HCJ 1308/17, Silwad Municipality, et al. v. The Knesset, et. al Issued 15 June 2020,Adalah (2020)
ix Menachem Mautner, The Supreme Court’s Surrealism, Haaretz (2020)
x Amichai Cohen and Yuval Shani, Occupation, annexation and the Regularization Act, Tel Aviv University Law Review (2022)
https://www.taulawreview.sites.tau.ac.il/_files/ugd/c05e3d_a5f08694ff444b3497376f8037593420.pdf
xi Miriam Berger, Israel’s hugely controversial “nation-state” law, explained, Vox (2018)
xii Abraham Bell, The Counter-Revolutionary Nation-State Law, Israel Studies 25(3) (2020)
xiii Rounaq Natour and Ron Gerlitz, 700 settlements for Jews, 0 for Arabs, Haaretz (2018)
xiv Summary of Israeli Supreme Court Decision on the Jewish Nation-State Basic Law, Adalah (2021)
https://www.adalah.org/uploads/uploads/Translation_of_Summary_of_JNSL_Judgment.pdf
xv Israeli Supreme Court upholds the racist and discriminatory Jewish Nation-State Law, Adalah (2021)
xvi John Dugard, Convention on the Suppression and Punishment of the Crime of Apartheid (1973), United Nations website
xvii Israel’s Apartheid against Palestinians: A look into decades of oppression and domination, Amnesty International (2002)
https://www.amnesty.org/en/latest/campaigns/2022/02/israels-system-of-apartheid/
xviii A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, Human Rights Watch (2021)
xix A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid, B'tselem (2021)
https://www.btselem.org/publications/fulltext/202101_this_is_apartheid
xx Joseph Zernik, Holocaust Commemoration Day and "Religious Zionism", OpEdNews.com (2022)
xxi David Kretzmer, Yaël Ronen, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, Oxford University Press (2021)
xxii Guy Harpaz & Yuval Shany, The Israeli Supreme Court and the incremental expansion of the scope of discretion under Belligerent Occupation Law, Israel Law Review 43 (2010)
xxiii Michael Sfard, The Wall and the Gate: Israel, Palestine, and the Legal Battle for Human Rights (2018), p 447ff
xxiv Raymond Wacks, Judges and Injustice, South African Law Journal (1983)
http://www.austlii.edu.au/au/journals/AUSocLegPhilB/1988/14.pdf
xxv John Dugard, Should Judges Resign?— A Reply to Professor Wacks, South African Law Journal (1983)
http://www.austlii.edu.au/au/journals/AUSocLegPhilB/1988/15.pdf
xxviFake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition of Palestinian Homes and the Dispossession of Palestinians,B’tselem (2019)
https://www.btselem.org/sites/default/files/publications/201902_fake_justice_eng.pdf
xxvii Tomer Zarchin, Aharaon Barak: Home demolitions is not due, but as a justice I didn’t interfere, Haaretz (2007)
xxviii Ran Edelist, Behind the glamor – Aharon Barak’ real legacy, Maariv (2022)
xxix Gidi Weitz, Menachem Mazuz astounded everyone when he retired from the Supreme Court. Now he is ready to tell why, Haaretz (2021)
https://www.haaretz.co.il/magazine/.premium.HIGHLIGHT-MAGAZINE-1.10487001
xxx Joseph Zernik, Holocaust Commemoration Day and "Religious Zionism", OpEdNews.com (2022)
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