Legal Expert to High Court: Israel Could Be Tried in Hague if It Evicts West Bank Villagers

Petition relates to area in the South Hebron Hills that was declared a live-fire zone in the early 1980s, and which Defense Minister Barak decided in July 2012 requires the eviction of 8 of 12 Palestinian villages.

Amira Hass
Amira Hass
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Amira Hass
Amira Hass

The expulsion of Palestinian residents from an army live-fire zone in the West Bank would enable the Palestinians to address the International Criminal Court. That is the legal opinion attached to a revised petition being submitted Wednesday to the High Court of Justice against the eviction.

The petition relates to some 30,000 dunams in the South Hebron Hills that were declared a live-fire zone in the early 1980s. In 1999, the Israel Defense Forces ordered Palestinians living in the area to leave, and evicted some by force. But in response to two earlier petitions, the High Court issued an interim injunction allowing them to return.

Legal proceedings languished for the next decade, but in July 2012, Defense Minister Ehud Barak finally submitted his ministry's opinion to the court. It argued that residents of eight of the 12 villages located in the live-fire zone should be evicted, because that portion of the zone is crucial for IDF exercises. It also argued that the villagers aren't actually permanent residents of the zone, so there is no barrier to evicting them.

The court then suggested that the petitioners submit a revised petition, which is being submitted Wednesday, via the Association for Civil Rights in Israel. That petition includes a legal opinion by Prof. Eyal Benvenisti, Yuval Shany and David Kremcher, who argue that the Geneva Conventions' prohibition on the forcible transfer of protected populations from occupied territory has become customary law, meaning it binds even countries that aren't signatories to the conventions. As such, it supersedes the military commander's orders.

Benvenisti, Shany and Kremcher also noted that this prohibition is one over which the ICC's founding treaty explicitly grants it jurisdiction.

"The prohibition is absolute, without exceptions, and isn't dependent on permanent residency," the three wrote. "The absoluteness of this prohibition derives from the dark history of World War II, in which deportations were widespread for various reasons."

The Geneva Conventions do allow protected populations to be temporarily evacuated for the sake of urgent and temporary military needs, such as in the midst of battle, he added. But creating a live-fire training zone wouldn't qualify.

Moreover, he argued, this would constitute a prohibited "forcible transfer" even if no physical force were used: The International Criminal Tribunal for the former Yugoslavia has already ruled that pressure tactics such as searching houses or disconnecting them from water and electricity suffice to make a transfer "forcible."

Palestinians being evicted from their cave homes in the village of Susia.Credit: Limor Edry
Palestinian children play in a village south of Hebron.Credit: Alex Levac

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