Maureen Clare Murphy
The Electronic Intifada / May 5, 2022
Israel’s high court approved the forced expulsion of more than 1,000 Palestinians from eight villages in the Masafer Yatta area of the southern West Bank overnight Wednesday.
If Israel carries through with the forcible transfer, it will be one of the single largest expulsions of Palestinians since it occupied the West Bank and Gaza Strip in 1967.
It will also be a war crime, despite the creative legal analysis put forth by the Israeli judges who signed off on the decision and who may be liable for prosecution by the International Criminal Court.
That tribunal is currently investigating alleged war crimes perpetrated in the occupied West Bank and Gaza Strip since 2014.
In 2018, Fatou Bensouda, the court’s former chief prosecutor, warned Israel that “extensive destruction of property without military necessity and population transfers in an occupied territory constitute war crimes under the Rome Statute,” the ICC’s founding treaty.
Bensouda’s warning was in reference to Israel’s plans to forcibly transfer the Palestinian residents of Khan al-Ahmar in the southern West Bank. Israel has refrained from carrying out those plans, likely in large part because of ICC scrutiny.
That tribunal in The Hague investigates individuals rather than states. By approving the Israeli government’s plans to forcibly transfer Palestinians in Masafer Yatta, the judges who unanimously ruled in favor of the state this week may attract unwanted court attention.
No justice in “occupier’s court”
The judges’ decision will also bolster the arguments of Palestinians and international observers that there is scant justice to be found in “the occupier’s court,” as the Israeli human rights group B’Tselem put it on Thursday.
As a court of last resort, the ICC defers to national proceedings under the principle of complementarity – meaning that it privileges a country’s internal investigations into suspected war crimes, where they exist.
By contrast, with this week’s ruling, Israel’s high court once again demonstrates that its role is to legitimize and facilitate war crimes.
In the Masafer Yatta ruling, the judges reject the claim that forcible transfer is prohibited under international law, treating it as a treaty norm – meaning that it reflects “agreements between states but is not enforceable in a domestic court,” according to Michael Sfard, a human rights lawyer who characterized that analysis as “an embarrassing legal error.”
His view was shared by Francesca Albanese, the new UN special rapporteur for human rights in the West Bank and Gaza Strip, who said that “dismissing the binding force of almost universally ratified [international] treaties” in the context of the occupation amounts to “apartheid.”
This week’s high court ruling would not be the first time that Israel has invented a legal paradigm to justify oppressive measures against Palestinians.
Israel’s judicial system as a whole exists to provide a liberal and democratic facade to a brutal settler-colonial regime.
The ruling should also serve as a reminder that just about every facet of the Israeli government is implicated in Israel’s settlement enterprise in the occupied West Bank – likely to be a primary focus of the ICC investigation, should it move forward.
The same goes for Israeli government personnel, including David Mintz, one of the three justices who issued the Masafer Yatta verdict. Mintz, who was born in England, lives in Dolev, a settlement in the West Bank built in violation of international law.
“Expel us one by one”
The ruling by Mintz and the other judges finds that the residents of eight villages in Masafer Yatta, near Hebron, began living illegally in the area after it was declared a military firing zone in 1981, despite Palestinians having resided there before the establishment of Israel in 1948.
The Association for Civil Rights in Israel presented aerial footage to the court to demonstrate that the villages had existed in Masafer Yatta for generations, according to the Tel Aviv daily Haaretz.
“The court rejected the claim that turning the area into a closed military zone was contrary to international law, and said that when international law contradicts Israeli law, the latter prevails,” Haaretz added.
Ariel Sharon, then Israel’s agriculture minister, admitted in 1981 that the area was declared a firing zone for the purpose of displacing Palestinians from their land so it may be seized by Israel.
Palestinians in Masafer Yatta have mounted a legal challenge to Israel’s plans ever since then.
The high court decision concluding two decades of legal proceedings was delivered overnight on the eve of this year’s commemoration of Israeli “Independence Day.”
Israel declared its independence on 14 May 1948 following a bloody campaign of ethnic cleansing that left hundreds of Palestinian cities, towns and villages destroyed and depopulated.
The hundreds of thousands of Palestinians forced from their homes and lands around the time of Israel’s declaration of independence, as well as their descendants, remain refugees or internally displaced within Israel.
Basel Adra, a Palestinian resident of Masafer Yatta, stated after the Israeli high court ruling on Thursday that “the army can now place us on trucks … and expel us from our ancient villages, one by one.”
Breaking the Silence, a group of whistleblowing former Israeli soldiers, said that the forced transfer of Masafer Yatta residents “is not only a humanitarian catastrophe that could set a precedent for other communities across the West Bank, but a clear step in de facto annexation … and cementing military rule indefinitely.”
Each of the Masafer Yatta petitioners were ordered by the high court judges to pay around $6,000 in legal expenses for their bid to remain on their land.
Maureen Clare Murphy is senior editor of The Electronic Intifada
