One of the major topics highlighted in the recent Israeli elections was the increasing attempt to restrain the ostensibly extensive powers of the Israeli judiciary and its alleged interference – the High Court in particular – in the government’s actions. Whereas Israelis can easily and willingly be fooled by the notion of a superpower liberal court threatening to overturn any right wing administration initiative, Palestinians residing in the occupied territories know better. Forbidden from participating in elections determining their own fate, 52 years of Israeli occupation have made Palestinians increasingly distrustful toward the Israeli judiciary.
In late April the Israeli High Court of Justice dismissed a petition, submitted by several Palestinian village councils from different areas of the West Bank together with human rights organizations, which demanded to revoke a new Israeli military order aiming to grant the Israeli Civil Administration excessive powers to demolish within 96 hours any type of new building – houses, schools, livestock structures, etc. – erected “illegally” in Area C of the West Bank.
The petitioners argued that the new order changes the existing legal arrangements, as set in Jordanian Planning Law applied to the occupied Palestinian territory, and therefore breaches international humanitarian law requiring the occupying power to respect laws already in force in the occupied territory. Whereas the existing Jordanian Law sets regulated appeal procedures, which include a hearing and opportunity to apply for a building permit, the newly introduced order qualifies the Israeli Civil Administration to conduct a swift demolition while grossly violating the right to due process.
Dismissing the petition, the High Court affirmed the state’s argument that the purpose of this new order was to tackle more efficiently the problem of building without prior authorization.
In so doing, the court patently ignored the planning and building reality in Area C of the occupied West Bank – an area which makes up more than 60 percent of the West Bank, and lies under almost full Israeli control. Following the 1967 War, Israel amended the Jordanian Planning Law and introduced a planning regime intentionally constraining any Palestinian development, cancelled the participation of Palestinians in the planning procedures, while, at the same time, devising special planning committees designated to approve building schemes for settlements only.
This discriminatory planning regime culminates in the fact that Israel prohibits any Palestinian construction in some 70 percent of Area C in the first place. As a result, it is almost impossible for Palestinians residing in Area C to receive building permits. Thus, contrary to settlers – who reside in the West Bank in clear contradiction to international humanitarian law but at the same time are granted far-reaching benefits from the Israeli occupation, including extensive development opportunities – Palestinians are actually forced to build without prior authorization. Therefore, there is no doubt that they are the ones who are targeted by this new military “legislation”.
It is interesting to note that the order challenged in this petition is actually a replica of a provision appeared in the Israeli Planning and Building Law. By issuing this order, the Israeli military, in effect, has applied elements of Israel’s own legislation regarding building inside Israel. The court was not bothered by this virtual act of annexation. On the contrary. Cynically, the court cited a previous High Court ruling which asserts that the fact that similar legislation is used in both the state itself as well as the occupied territories demonstrates that the state cares as much about the people it occupies as it cares about its own.
Not surprisingly, the petitioners’ arguments pertaining to international law and the discriminatory planning regime were dealt with by the court in a brief and evasive manner. The court asserted that there is no room, in the framework of such a petition, to discuss arguments pertaining to discrimination. In doing so, the court completely ignored the fact that previous attempts to challenge head-on the discriminatory West Bank planning regime were dismissed by the High Court, based, among other things, on the notion that the topic is “political”, a term essentially referring to the Israeli desire to continue controlling Palestinian life through the planning regime.
Arguably, by ignoring the real issues in question, the court went to great pains to maintain a superficial stance of neutrality, as if to show that the order may be applied equally to both Palestinians and settlers who build without a permit. But as the discrepancies on the ground are so blatant, and where it is clear that the order was initially issued purposely to demolish Palestinian homes and other buildings, turning a blind eye was anything but neutral. It was a clear stamp of authorization to a racist regime facilitating gradual Palestinian disappearance from Area C.
The same day that the High Court rendered its ruling, Israeli forces demolished four structures in the Wadi Yasul area of Silwan, a neighborhood of the occupied East Jerusalem. The demolition resulted in the eviction of eleven Palestinian refugees, including seven children, with an additional refugee family losing personal property. According to the UN Office for the Coordination of Humanitarian Affairs, during demolitions “five people were seriously injured by Israeli forces, who used beatings, stun grenades and sponge-covered bullets as residents tried to retrieve belongings prior to the demolitions. One man whose home was destroyed was injured with a sponge-covered bullet to his back and subsequently arrested. He was heavily beaten by Israeli security forces during the arrest and the transfer to the Israeli detention centre.”
These demolitions did not occur out of the blue. Rather, they are the outcome of a long legal battle that commenced after the Israeli authorities issued demolition orders against 60 houses in Wadi Yasul, where as many as 500 Palestinian live.
Following the 1967 War, contrary to international law, Israel annexed East Jerusalem and applied Israeli law to this territory. Despite the wedge Israel has managed to create between the annexed territory and those lands on the other side of the Separation Wall, the Israeli aspirations regarding East Jerusalem, as well as the tactics used to achieve them – are very much similar to those applied to the rest of the West Bank.
Over the years following 1967, Israel has gradually settled its own Jewish population in the annexed territory. In addition, planning and development in East Jerusalem has worked to ensure a Jewish demographic advantage in the city by designating the vast majority of available areas in East Jerusalem for the Jewish population, while limiting territorial contiguity and development of the Palestinian neighborhoods.
One example is playing the “open scenic area” card. Due to the Israeli zoning policy, the Palestinian neighborhoods of East Jerusalem contain a disproportionately large swath of land designated as “open scenic area” (or “green area”), which cannot be developed for public use. This was also the case in Wadi Yasul, which was classified by the Israeli authorities as “open scenic area,” rendering it virtually impossible for Palestinian owners of structures in that area to accrue building permits.
And thus, similar to the situation in Area C of the West Bank, the Palestinian residents of Wadi Yasul were forced to build their homes without permits, followed by the inevitable outcome of demolition orders issued by the Jerusalem Municipality against virtually all houses of the neighborhood.
And what did the courts had to say about that? Don’t hold your breath. Not only were both the District and Supreme courts unwilling to consider the impossible circumstances, for all intents and purposes encouraging Palestinians to break the law, they were not even prepared to put demolitions on hold until a master plan submitted by the Palestinian residents would be reviewed by the Israeli authorities.
It is interesting to note that as Elad, a settler organization operating in East Jerusalem, has been building without prior authorization virtually in the same area structures serving its own activities, the Jerusalem municipality has been tirelessly working to cancel the classification of the land as “green area”, practically assisting Elad in “legalizing” the structures. Needless to say that there is no risk of demolition in this case.
Whether it is in Area C of the West Bank, or the illegally annexed East Jerusalem, the message coming from the Israeli so-called liberal judiciary is the same: do not expect us to stand in the way of the Israeli expansion objectives.