Jurisdiction as Sovereignty Over Occupied Palestine

Abstract

In the context of prolonged occupation, it has long been argued that the Israeli Supreme Court (ISC), in High Court of Justice (HCJ) formation, is facilitating the entrenchment of a permanent regime of legalized control by moving away from a model of exception to ordinary civilian jurisdiction over the West Bank. This was recently demonstrated in the Khan-al-Ahmar case, in which a group of settlers petitioned the ISC/HCJ demanding the execution of a pending Israeli demolition order over a school in a Bedouin village in Palestine. The court sided with the army, deferring to a political solution for the transfer of the entire Bedouin community elsewhere. Drawing on existing scholarship and the author’s first-hand impressions of the final hearing, this article interprets the Khan-al-Ahmar case as an illustration of how the exceptional military nature of the occupation has shifted to a permanent regime of legalized control overseen by an ordinary civilian court.

Territoriality and Status in Human Rights Litigation: The Case of Israel/Palestine

“…Moreover, the territorial status of the territories under Israeli control did not always align with the status of their residents (a situation that continues to this day). One example is the annexation of parts of these territories into the state's jurisdiction—a process in which their Palestinian residents were not incorporated as citizens; another example is the granting of full citizenship rights to Israeli settlers living in territories that are officially under occupation (Panepinto 2017; Ziv 2018; Ben-Natan 2021; Viterbo 2018; Weizman 2016).…”

“…However, when demanding rights for Palestinian residents of the Occupied Palestinian Territory (OPT), lawyers increasingly use doctrines from Israeli domestic law (primarily constitutional and administrative law), which is characterized by a more generous human rights regime. Yet, such legal arguments are often viewed as an acceptance of the process of annexation—the gradual application of Israel's jurisdiction to the occupied territory (Panepinto 2017; Ben-Natan 2017; Shinar 2017). On the other hand, in recent years, human rights organizations have increasingly acknowledged a one-state reality, and there is growing concern that the use of the international humanitarian law obscures this reality (Ben-Natan 2022).…”

“…6 However, petitioners may also base their claims on Israeli domestic constitutional and administrative law, which has a more generous human rights regime. Whereas domestic law ostensibly applies only within sovereign territorial borders, in practice, scholars have noted its increased application to the OPT (Panepinto 2017; Ben-Natan 2017; Shinar 2017; Sultany 2014).…”