High Court to IDF: Let Palestinians Fight Property Confiscation in Military Court

Army gets four months to put procedures in place that will allow for some form of appeal in the West Bank and not by petitioning the High Court of Justice.

Gil Cohen Magen.

The High Court of Justice has ordered the Israel Defense Forces to cancel an order issued by then-Central Command chief Maj. Gen. Nitzan Alon, which prevented Palestinians from appealing in military courts against the confiscation of their property by the IDF.

Alon had signed the order on December 25, 2013. After it was issued, judicial review of West Bank confiscations was placed solely in the hands of the High Court of Justice, which the military said was consistent with long-standing government policy – which gives the court authority to review any terror-related property confiscation in the West Bank and Israel.

A number of organizations petitioned the High Court of Justice against the order, on behalf of Palestinians who had money and property confiscated, as well as appealing the order in principle. As a result of the High Court petition, the IDF made a number of changes in the order, but left the essential elements in place.

Justices Elyakim Rubinstein, Noam Sohlberg and Menachem Mazuz ruled last Tuesday that while the order itself was legal, a procedure to appeal or object to a confiscation order must be instituted within four months.

“There is room for establishing a forum for objection of appeal of the confiscation orders, instead of every objection in this context being raised in a petition to the High Court of Justice. Thus, both for reasons of fairness toward those concerned in the matter in order to allow them to exhaust their claims, and for reasons of common sense that a matter is possible to solve in the appropriate forums in the region, there is no need to immediately turn to the High Court of justice, as was the custom,” said the justices.

The IDF has increasingly used confiscation orders in recent years. In 2013, 119 such orders were issued, in comparison to just one in 2011.

Under Israeli security legislation governing the West Bank, the military commander, or anyone he authorizes, can confiscate property or money implicated in illegal activity. The property or money goes to the regional treasury and is appropriated for public use.

While the law allows the military and police to impound funds that are believed to belong to terror groups, it is also used to confiscate vehicles that illegally transport laborers into Israel, as well the equipment used by thieves.

Until the order was issued, Palestinians could appeal confiscations in Israeli military courts in the West Bank. The authority of the military courts to consider such appeals was anchored in a 2010 decision by the Ofer Military Appeals Court, which ordered the return of a pneumatic drill to a Palestinian after the police had taken it. Col. Aharon Mishnayot presided over the court that made the decision, but Col. Netanel Beniso, who is the current appeals court president, dissented. Beniso wrote a minority opinion saying that the Central Command chief should establish a separate channel for appealing confiscations.

Under the advice of the military prosecution, Alon decided to block appeals, effectively overruling the military court. The military prosecution said that under the emergency regulations in force in the West Bank, only the High Court of Justice has such power, as in the case of house demolitions. Since the IDF already serves as both the legislative and executive bodies in the territories, it was decided that Alon would issue the order preventing the military appeals, also keeping the IDF from serving as the judicial authority in such cases.

Palestinians have an avenue for petitioning the High Court, but it is a cumbersome process. For one, Palestinian attorneys are permitted to represent clients at the military court but cannot represent their clients in the High Court of Justice, which means an Israeli attorney must be hired at a higher cost. On top of that, there is a fee to petition the High Court, whereas military court appeals are free.

The lawyers for the human rights organizations that originally petitioned the High Court on the matter said the decision was the obvious one, because in most cases the confiscated property came from people of very limited means who were unable to petition the High Court to ask for their property back.

“We hope the necessary mechanism will be established quickly and will allow the Palestinian residents to receive their money back, and will become a supervisory mechanism on the law enforcement authorities, who today confiscate monies without presenting a shred of evidence that would prove the claim that these are terrorist funds,” said the lawyers, Emily Schaeffer Omer-Man and Ahmad Safia.