On 4 May 2022, as Israel was officially marking the eve of its so-called “independence day” - which for Palestinians marks the height of their Nakba, mass dispossession and ethnic cleansing - the Israeli High Court showed once again why the Nakba remains an ongoing process that did not end in 1948. In a unanimous decision by a three-judge panel, the court upheld the mass expulsion of some 1,000 Palestinian residents of eight villages in the area collectively known as “Masafer Yatta in the South Hebron Hills. The decision is based on the Israeli occupation army’s 1980 designation of the area, which covers some 30,000 dunams, as “firing zone 918.” Along with designating Palestinian spaces as “state land” and “military zones,” declaring them as firing zones is one of the main Israeli instruments of confiscating Palestinian land and entrenching Israeli control over Area C of the occupied West Bank.
The Israeli High Court’s decision puts an end to a protracted, asymmetric legal battle by Palestinian families in Masafer Yatta to protect their unique and ancient way of living, which relies on traditional cultivation and husbandry of sheep and goats. Ever since the initial mass expulsion of the villagers in November in 1999 and injunction by the court, one year later, to allow them back pending a final decision and conditions against restoring or rebuilding the demolished structures and equipment, Masfer Yatta residents have been living under a looming threat of another expulsion.
The expulsion decision was penned by Justice David Mintz, who lives with his family in the Israeli settlement of Dolev, (illegally constructed on the lands of Al-Janiya, Ein Qinya, and Deir Ebzei), in violation of Article 49(6) of the Fourth Geneva Convention. On first reading, the ruling appears like a poorly-written piece of dystopian fiction: a settler judge claiming, based exclusively on the claims of an occupying, settler-colonial power, that the indigenous Palestinian population working and grazing ancestral land for centuries, dwelling its hamlets and caves, and defying state-sponsored settler violence, are “nonpermanent residents.” The villagers, according to the Israeli army’s claim which the judge uncritically accepted despite evidence and expert opinions submitted by anthropologists, the villagers only arrived in these villages after the designation of the firing zone. The ruling portrays the occupying power as the benevolent occupier acting in good faith and prepared to give generous concessions, while the occupied population is painted as ungrateful, stubborn, rejecting mediation, and “lacking integrity.” (“The lack of integrity” label is particularly galling.)
The irony reaches a farcical point in paragraph 32 of the ruling, in which Justice Mintz argues that Article 49(1) of the fourth Geneva Convention, which absolutely and unequivocally prohibits the forcible transfer of the protected population, is not a provision of customary international humanitarian law but merely a “conventional” text” that does not bind Israel. It is perhaps only appropriate for a judge whose very place of abode is a violation of Article 49 of the Geneva Convention to willfully misinterpret the article.
This flawed legal interpretation has been repeatedly embraced in the jurisprudence of the Israeli High Court over matters related the Occupied Palestinian Territory.
Mintz adds that even if one assumes that Article 49(a) is part of customary IHL and that the actions of the military commander are to be examined through its prism, “it is incontrovertible that when explicit provisions of Israeli law stand in contrast with international law norms, Israeli law should prevail.” This statement, expressed so confidently and bluntly by Mintz, is not an anomaly. It clearly captures a dominant position in the Israeli High Court that grants Israeli military orders primacy over international law norms and disregards the protection that international humanitarian law guarantees the occupied population.
Historically, the Israeli High Court has not acted as a neutral arbiter or as an objective juridical body in the occupied Territory. Rather, its decisions on issues ranging from land seizures to punitive home demolitions, from administrative detentions to the annexation and expansion wall, from the illegal practices of the Israeli army to the approval of illegal settlements, have served to consolidate and legitimize the Israeli settler-colonial enterprise. The decision to greenlight the mass expulsion and demolition in Masafer Yatta illustrates the key role that the Israeli High Court plays in protecting Israel’s regime of institutionalized domination and oppression over the entirety of the Palestinian people that amounts to the crime of apartheid.