ICAHD Statement on Masafer Yatta – 8 May 2022

On May 5^th, the Israeli Supreme Court quietly, almost furtively, dismissed the petitions of the residents of eight Palestinian villages in the Masafer Yatta area of the southern West Bank against their eviction from their homes and grazing land claimed by the Israeli army as a firing zone. The decision was issued by Judge David Mintz, who himself lives in an illegal West Bank settlement. Up to 1,800 residents, including more than a thousand children, face imminent displacement. Immediately after the ruling Israeli settlers moved a mobile home onto the land, clearly indicating a political rather than military motivation for expelling the local population and seizing its land.

This is not the first time by far that seizing land for military purposes has served as a pretext for expelling an area’s Palestinian residents in order to clear the land for Israeli settlement. Although a civilian population living under occupation is protected under international law (the Hague Regulations, the Fourth Geneva Convention and the Law of Armed Conflict, among others), Israel has always exploited a loophole: the right of the Occupying Power to take temporary possession of private land if it is “required for essential and urgent military needs.” Until 1979 the army simply took control of the expropriated land, expelled its residents and handed it over to Israeli settlers.

That was such a blatant violation of international law that, in 1980, a former Israeli Supreme Court ruled that land could not be taken from Palestinians and handed over to the settlers directly. There had to be some “legalizing” intermediate process. So the Israeli government invented the concept of “State Land.” Refusing to honor the Ottoman or British-era deeds the Palestinians possessed, it simply declared that 72% of the West Bank had no legal ownership, and therefore reverted to the Israeli state as “State Land.” That policy of “Israelizing” the land of the West Bank stands in gross violation of the Fourth Geneva Convention, which defines an occupation as a temporary military situation and therefore prohibits any action on the part of the Occupying Power that makes its control or changes in the status quo permanent. An Occupying Power is prohibited from expropriating land, forcibly transferring a population out of its living space (an action that constitutes a war crime), demolishing homes, infrastructure and farms, and settling its own civilian population in an occupied territory.

The 1980 case, then, set up a two-stage process for “legally” expropriating Palestinian land and giving it over to settlers. The army takes control of the land under the pretext of “urgent and immediate military necessity,” as it has in the Masafer Yatta case, rids it of its residents, then withdraws as the government asserts its claim of State Land, thereby opening the way to permanent Israeli settlement. In this specific case, Ariel Sharon, then the head of the government’s Settlement Committee, admitted in a 1981 meeting – held just months after the Masafer Yatta firing zone was declared – that firing zones in the South Hebron Hills were necessary to ensure that the area remained in Israeli hands. In the early 2000s the army issued evacuation orders against the Palestinian population, sparking the 20-year legal struggle that ended so ignominiously in the dark of the night last week.

This process of displacement is made all the easier when it comes to nomadic populations such as the Bedouins of the Jordan Valley or of the Negev/Naqab region of southern Israel, or of the Palestinian pastoralists of Masafer Yatta, who move from their settled villages (which have names and permanent buildings) seasonally to exploit fresh pastureland. These communities have no formal deeds. As farming and herding peoples who have lived in the area for centuries, the very fact that they move their herds seasonally disqualifies them under Israeli policy from claiming permanent residence. This leaves them with no legal standing whatsoever, enabling the Israeli Supreme Court to deny that their displacement rises to a case of forcible transfer. This is clearly a spurious and self-serving manipulation of international law intended to ethnically cleanse a region Israel seeks to repopulate with its own settlers since the prohibition against forcibly transferring a population has nothing to do with ownership of land or the life patterns of the people being removed. It is their very presence in the land that is occupied that gives them protection from displacement under international law.

One way Israel evades its responsibilities under international law is simply to declare it inapplicable. Israel is a signatory to the Fourth Geneva Convention but denies its applicability since, in Israel’s convoluted legal arguments, there is no occupation, only “disputed territories.” This non-legal concept has allowed Israel to evade the requirements of international law. It derives solely from the agreement of the United States to disconnect the Oslo “peace process” negotiations from international law so as to enhance Israel’s ability to unilaterally leverage its power in the negotiations, effectively undermining the Palestinians’ ability to assert their legal rights. Indeed, the automatic support Israel receives from the United States and Britain in the UN Security Council, the body responsible for enforcing international law, removes any Israeli fear of sanctions or legal repercussions for its egregious human rights violations. This is what enables the Israeli courts and government to engage in the cynical, cruel and patently illegal maneuvers displayed in the Masafer Yatta decision.

At a time when the international community is condemning Russia for its blatant human rights violations in the Ukraine and warning that Russia’s disregard for international law threatens the entire world order, the fact that the United States and much of Europe vigorously support Israel’s equally flagrant violations exposes not only hypocrisy but a willingness of the world’s powers to set aside international law when it suits their political needs. This is precisely what they have done by allowing Israel to violate international law with impunity. Not only does this undermine any claim of upholding an international order based on law and justice, it actually destroys it. The implications of selectively granting immunity from sanctions to some countries like Israel and the NATO powers while weaponizing international law against whoever those countries want to attack puts us all at jeopardy.

The Israeli Committee Against House Demolitions (ICAHD) joins other Israeli, Palestinian and international human rights organization in condemning the illegal ruling of the Israeli Supreme Court permitting the forcible transfer of an entire Palestinian population from their homes in an area it has lived in for centuries. We call for the prosecution of Israeli officials responsible for carrying out forced transfer if that in fact takes place. On a broader level, ICAHD condemns Israel’s attempt to invalidate international law as it applies to occupation, apartheid and Palestinian rights in order to pursue its illegal policies of land expropriation, displacement and the annexation, de facto or de jure, of the Occupied Territory.

Since the Palestinians have exhausted their legal remedies in the Israeli court system which has proved itself merely a facilitator of Israel’s occupation policies, ICAHD calls on the national courts of every country to prosecute Israeli violations of international law, some of which rise to war crimes and crimes against humanity, based on the principle of universal jurisdiction. We also call on the International Criminal Court to include the current Israeli actions in Masafer Yatta in its ongoing investigation of war crimes committed in the State of Palestine, with the purpose of bringing the perpetrators of this crime of forcible transfer to justice, including the Supreme Court Judges that authorized it.

Finally, ICAHD calls on the international community to take immediate measures to end Israel’s regime of colonization, apartheid and occupation and to effectively broker a just and lasting settlement that will restore to the Palestinians their basic national rights. That is what the rule of law truly requires.