Opinion |

Khan al-Ahmar and Gaza: Two Sides of the Same Legal Coin

Without a legal system prepared to supply a veneer of decency, Israel couldn’t do what it inflicts on Palestinians

Hagai El-Ad
Hagai El-Ad
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Palestinian Bedouin girls watch TV at their home in the village on May 30, 2018 in the Khan al-Ahmar Bedouin village, a village which is located between the West Bank city of Jericho and Jerusalem near the Israeli settlment of Maale Adumim and is under a demolition order.
Palestinian Bedouin girls watch TV at their home in the village on May 30, 2018 in the Khan al-Ahmar Bedouin village.Credit: MENAHEM KAHANA/AFP
Hagai El-Ad
Hagai El-Ad

Last Thursday, the High Court of Justice ruled unanimously on two ostensibly unconnected cases: one about planning and building and carrying out demolition orders in the West Bank; and another about the rules of engagement in Gaza.

Justices Noam Solberg, Yael Willner and Anat Baron approved expelling the population of the West Bank Palestinian village of Khan al-Ahmar and razing their homes in one case and court President Esther Hayut, Vice President Hanan Melcer and Justice Neal Hendel decided in the other not to intervene in the killing of dozens of Palestinian demonstrators and the injury of thousands along the Gaza border fence.

Nothing new there, seemingly. For decades, the Supreme Court justices have granted legitimacy to practically any injustice that Israel wishes to cause to the Palestinians: demolishing their homes, administrative arrests, revoking residency rights, seizing land, constraining their movement. Still, it isn’t every day that six of the 15 Supreme Court justices sign off on rulings on the fate of Palestinian subjects that boil down to approving crimes.

Both the rulings were foreseeable. Based on a sea of precedent, the erudite words come together easily. The rulings include only the convenient “facts” for inclusion, leaving aside others for “review,” and seeking a purpose “fitting for a Jewish, democratic state.”

At the many hearings in recent years about Palestinian villages that the state has wanted to destroy, expelling their residents — a matter that, inconveniently enough, is considered a war crime — so far, the justices have rolled their eyes, adding something for the record about the need to find alternatives for the people before agreeing to ruin their lives. Now even that lip service has vanished.

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As Solberg wrote: “The question at stake is not whether the path the state plans meets the requirements of the law, but whether carrying out the demolition orders meets the requirements of the law.”

And with that, the curtain fell on the legal show, which included four petitions by settlers demanding that the homes and schools of their Palestinian neighbors in the village of Khan al-Ahmar be demolished. The “inarguable point of departure” was that the buildings in question were “illegal.” The argument then focused on the concern that “the village school doesn’t have a yard that meets standards.” It does not, goodness gracious, even meet “acoustic standards”. And the legal conclusion of all this? Demolish and expel. When all is said and done, what is involved is the letter of the law and its enforcement.

Meanwhile in the Gaza case, Justice Hendel stated: “Note well that the Israeli army took a stringent interpretation of international law upon itself in the circumstances of the case in question.” Court President Hayut elaborated that, precisely as the state had described in its response, “accurate fire” (aimed only at the legs) directed at a “main disturber of the peace or inciter” is permissible, but even then only as “a last resort,” and everything should be subject to “stringent requirements” and “live weapons fire is not to be shot at a person only as a result of his participation in a violent disruption of the peace or support for the Hamas organization”.

Despite all of those good sentiments, somehow more than 100 demonstrators were killed and more than 3,600 were wounded by live gunfire. Hayut does not wonder, and the attorney general and chief military prosecutor who approved the rules of engagement do not inquire how that happened and why among the injured and dead there are teenagers, journalists, medical staff, people who were at a distance from the border fence and others whose backs were to the fence.

But maybe it actually just seems to you that you saw what happened in broad daylight, right in front of the cameras: “Photographs and video clips ... paint a partial, erroneous picture from which it is not possible to learn what actually happened or about the rules of engagement themselves.”

Does any doubt remain? Court Vice President Melcer will assuage your conscience with the help of whitewashing from the army’s general staff headquarters: “We do, however, assume that the multiplying numbers of deaths and injuries so far, and the fact that according to what the petitioners claim, many were injured in the upper part of their bodies and some in the back will lead on the one hand to lessons being drawn about the possibility of using alternative, non-lethal means insofar as is possible, and on the other hand, to in-depth examination of what happened in the past.”

In other words, on the one hand, it’s not certain that we fired lethal gunfire at them. On the other hand, if somebody died, give us a few years to whitewash it, through the usual procedure.

In the summer of 2018, Israel is more confident than ever that it can do whatever it pleases with the Palestinian subjects — deciding about their lives and deaths, deciding where they will live and from where they will be expelled, who is eligible for electricity, water or shelter, who may farm his land, or be eligible to make a living. Fifty years of experience is nothing to sneeze at, and the mechanisms to make all this happen are well-oiled. Without a legal system prepared to supply a veneer of decency, Israel couldn’t do all that.

The judges didn’t initiate anything. They’re not going be win the Israel Prize in the occupation category. But for their devotion and service as the ultimate instruments of injustice, their names should go down in the golden book of the enterprise of dispossession, inheritance, control and oppression.

The writer is the director of B’Tselem.

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