He looked for justice, but behold, oppression The Supreme Court Sitting as the High Court of Occupation He looked for justice, but behold, oppression Isaiah 5:7 The Supreme Court Sitting as the High Court of Occupation December 2019 On the Cover: A Palestinian building is blown up by Israeli forces in Wadi al-Humus neighborhood in East Jerusalem, following the approval of the Israeli High Court, July 22, 2019. Photo by Mussa Qawasma, Reuters. Catalog: Einhar Design ISBN 978-965-7613-42-9 This publication was written with the support of Diakonia though the views expressed do not necessarily reflect those of Diakonia. In compliance with the law passed by the Israeli Knesset that seeks to equate the receipt of international funding with disloyalty, please note that B’Tselem was 52% funded by foreign state entities in 2018. These entities are listed on the website of the Israeli Registrar of Associations and elsewhere. Be that as it may, we remain loyal to the struggle for human rights, freedom and democracy, and to an end to the occupation. Table of Contents Introduction 8 Court-sanctioned vengeance: HCJ upholds ban on family visits for Hamas 11 prisoners from Gaza Wadi al-Humos Demolitions: The excuse – security, The strategy – a Jewish 18 demographic majority We are satisfied that preventing the meeting is vital to regional security 22 Israeli High court greenlights holding Palestinian bodies as bargaining chips 26 Introduction On 29 January 2019, the president of Israel’s Supreme “operational discretion” that the court refuses to Court, Justice Esther Hayut, spoke at the annual discuss: “Examining the way in which these orders international conference held by the Institute are carried out touches on professional considerations for National Security Studies. In her speech, she which the court may not have the tools to assess – emphasized that “the State of Israel, since its especially as the events that are the subject of the establishment, has viewed itself as committed to petition are ongoing”. In any case, the military carries the rule of law and the defense of human rights, out “an organized process of learning from mistakes at times of both war and peace”. Accordingly, the while the events are still underway, following which, role of the court is only to supervise how the state the troops on the ground are given further instructions fulfills this commitment, and it is not required to and clarifications. Some incidents are referred to “choose between operational possibilities or engage an independent general staff mechanism for the in considerations that require clear professional investigation of exceptional incidents”. expertise”. Nevertheless, the president clarified, “the court does not hesitate to exercise judicial review The president attempts to paint an idyllic, balanced when presented with questions of legal principles picture of the Supreme Court, as though it honestly that justify intervention”. and seriously considers all aspects of matters brought before it without intervening in affairs that lie beyond To clarify her distinction between these two types its scope, but does not hesitate to intercede when of cases, Justice Hayut cited the court’s ruling in suspicion arises that the law has been violated. Yet, the a petition regarding the open-fire regulations the president only illustrates how the distinction between military has employed in response to the protests cases that raise “questions of legal principles” and held by Palestinians near the fence separating Gaza cases that require “operational discretion” merely from Israel since March 2018.1 The president noted creates an illusion of judicial review. Over the years, that the judges studied the open-fire regulation the court has used this exact distinction to provide a and determined that “they establish criteria for the legal stamp of approval to the ongoing dispossession, incremental use of means to deal with the dangers oppression, abuse and killing of Palestinians. arising from the events”, and that “these criteria directly relate to the severity of the danger and the The ruling regarding the open-fire regulations clearly degree of certainty that the danger will be realized”. demonstrates that the distinction is meaningless. The court further determined that, “according to The gap between the state’s declarations and the the regulations, the use of potentially lethal force reality on the ground could not be clearer: the petition in a concrete instance is subject to the stringent was heard on 30 April 2018, about a month after the principles of ‘necessity’ and ‘proportionality’ laid out first protest near the Gaza fence. Up to that point, 38 in international law”. Palestinians – five of them minors – had been killed due to application of these open-fire regulations, and That is the court’s answer to a “question of legal more than 1,900 injured by live fire. By the time the principle”. The way that these regulations are ruling was handed down some three weeks later, on applied is, according to Justice Hayut, a matter of 24 May 2018, another 69 Palestinians had been killed, 1. HCJ 3003/18, Yesh Din – Volunteers for Human Rights v. The IDF Chief of Staff. -8- nine of them minors, and more than 3,600 injured sanction almost any injustice or violation of the by live fire. Since then, and until today, another 116 human rights of Palestinians. Over the years, it Palestinians had been killed, 31 of the minors, and has permitted nearly every kind of human rights more than 4,000 injured by life fire. violation that Israel has committed in the Occupied Territories. Violations approved by the court include By choosing to determine the open-fire regulations the punitive house demolitions, lengthy detention are lawful while ignoring their horrifying results, the without trial, the ongoing blockade of the Gaza Strip president of the Supreme Court publicly declared that and the imprisonment of some two million people the state may engage in unlawful acts and that the inside it, the expulsion of entire communities from court will provide it a stamp of legal approval. This their homes, and the construction of the Separation will hold true, however, as long as the state refrains Barrier on Palestinian territory, resulting in extensive from being truthful with the court, but rather continues land grab.3 to present the justices with irrelevant documents reflecting a theoretical legal analysis that is divorced Above all, the Supreme Court chooses to ignore the from the reality on the ground. broader context: The Palestinian petitioners are part of a population that completely lacks representation, This is also true of Justice Hayut’s statement whose lives have been governed by a harsh military that the military provides the troops with “further regime for over half a century, whose political rights instructions and clarifications” and investigates are denied, and who can’t participate in the most “exceptional incidents”. Again, this determination basic decisions concerning their lives. According to is based on documents the state has presented both common sense and international law, these the court, extensively describing the work of the circumstances should drive the court to provide “military law enforcement system”. In reality, the increased protection to the very population that needs so-called “independent general staff mechanism it so much. Instead, the Supreme Court chooses to for investigating exceptional incidents” and similar defend the perpetrators. apparatuses have proven time and again to be no more than whitewashing techniques for protecting the What, then, is the actual function of Israel’s Supreme persons responsible for formulating the regulations, Court sitting as the High Court of Justice, concerning the commanders who hand them down, and the the Occupied Territories? President Hayut provided soldiers who apply them.2 the answer in her speech cited above, by detailing the benefits of the Court’s ruling for the state. This ruling, which the president chose to emphasize, In her view, the court’s judicial review “reflects is not unusual. It is just one example of many in which the state’s commitment to the rule of law” and the Supreme Court refrained from giving effective therefore, regardless of the rulings it delivers, “one judicial review, and failed to constrain security forces of the important side effects is its contribution to when it comes to Palestinians and the violation of Israel’s international legitimacy”. The Supreme their rights – even in cases of questions of legal Court’s involvement also helps the state “reinforce principle. The court has proven its willingness to its ‘complementarity’ argument when dealing with 2. See B’Tselem, After a Year of Protests in Gaza: 11 Military Police Investigations, 1 Charade, March 2019; B’Tselem, Whitewash Protocol: The So-Called Investigation of Operation Protective Edge, September 2016; B’Tselem, The Occupation’s Fig Leaf: Israel’s Military Law Enforcement System as a Whitewash Mechanism, May 2016. 3. See, for example, B’Tselem, Fake Justice: The Responsibility Israel’s High Court Justices Bear for the Demolition of Palestinian Homes and the Dispossession of Palestinians, February 2019. -9- criminal proceedings abroad, in the international law designed to protect them. In refusing to do so, arena or in other countries”. Israeli’s highest legal authority not only condones these human rights violations – but also the occupation That is the heart of the matter: Israel’s Supreme Court itself. believes that one of its roles is to protect the image of Israel and defend its representatives when they violate *** the law. It faithfully carries out this mission by adopting Below are four analyses of the Supreme Court rulings unreasonable, at times absurd, interpretations of that B’Tselem published on its website throughout the law that are dismissed by most jurists around 2019, on a range of issues: house demolitions, the the world.