Jurisdiction as Sovereignty Over Occupied Palestine

DOI10.1177/0964663916668002
Date01 June 2017
Published date01 June 2017
Subject MatterArticles
SLS668002 311..332
Article
Social & Legal Studies
2017, Vol. 26(3) 311–332
Jurisdiction as Sovereignty
ª The Author(s) 2016
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DOI: 10.1177/0964663916668002
The Case of Khan-al-Ahmar
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Alice M Panepinto
Warwick University, UK
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 peti-
tioned 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.
Keywords
Israeli Supreme Court/High Court of Justice, jurisdiction, occupation, Palestine, West
Bank
Introduction
While exiting the courtroom after the final Khan-al-Ahmar hearing on 23 April 2014, the
legal counsel representing the Bedouins before the Israeli Supreme Court in High Court
of Justice formation (ISC/HCJ) described the entire trial as ‘Kafkaesque’. The judges did
Corresponding author:
Alice M Panepinto, Centre for Human Rights in Practice, Warwick Law School, Warwick University, Coventry,
CV4 7AL, UK.
Email: a.panepinto@warwick.ac.uk

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not give him the opportunity to speak on behalf of his Palestinian clients, whose tiny
community east of Jerusalem was caught in a legal battle between the Israeli state and
Israeli settlers over the timings of the demolition of the village school to facilitate
settlement expansion. Although the court did not order the execution of the demoli-
tion as the settlers had demanded, the Khan-al-Ahmar judgment did not constitute a
victory for Palestinians. Instead, by deferring to a political solution, the ISC/HCJ
reaffirmed its full integration within the Israeli institutional framework and, conse-
quently, its inherent inability to adjudicate fairly over matters involving Palestinian
rights in Palestinian territory.
In Kfar Adumim Community Settlement and others v. Minister of Defense and
others, settler representatives of Kfar Adumim petitioned the Israeli Ministry of
Defence demanding the execution of a pending demolition order over the ‘tyre school’
in the adjacent Khan-al-Ahmar Bedouin village (UNRWA, 2009). The settlers argued
that the makeshift school buildings had not received the proper Israeli planning per-
mission; moreover, its location fell within the proposed expansion area of Kfar Adu-
mim, granting them standing in the case. The trial was conducted as an ordinary
judicial review between Israeli citizens (representatives of Kfar Adumim) and the
Israeli state (listed as ‘respondents 1–3’: Minister of Defence, Commander of the Central
Defence, Israeli Defence Forces (IDF) and Israeli Civil Administration). The Bedouin
community whose school was the object of the dispute was listed in the trial documents
as a secondary group of respondents (‘respondents 4–6’: Suleiman Ali Arara, Muham-
mad Szliman Alkushran and Ibrahim Hamis Jahalin). The judges ultimately sided with
the state and did not enforce the demolition order, deferring instead to an Israeli plan to
relocate the entire Khan-al-Ahmar community to a different location in the West Bank.
So in effect, the ISC/HCJ reaffirmed that the fate of the school as well as the future of
this Bedouin community fell squarely within the sovereign remit of the Israeli state –
be it the army, the courts or the Knesset – regardless of the fact these people were
Palestinians living in Palestine.
The Khan-al-Ahmar case is not exceptional. It illustrates the ISC/HCJ’s role in
legitimizing Israeli control over Palestine, favouring Israeli interests over Palestinian
rights, a critique proposed for decades (e.g. Shamir, 1990; Shehadeh, 1985; Sultany,
2014; Weill, 2015). Kretzmer (2002: 2–3) has suggested that ‘the main function of the
Court has been to legitimize the government’s actions in the Territories’, both when the
ISC/HCJ sides with the state authorities and when it opposes them (also Shamir, 1990);
as such, it plays a crucial role in maintaining and upholding the occupation (Al-Haq,
2010; Harpaz and Shany, 2010: 515; Kretzmer, 2002) alongside military courts (Arai-
Takahasi, 2009: 145–166; Dinstein, 2009: 132).
The framework that underpins the Khan-al-Ahmar case is the ISC/HCJ’s judicial
review over the actions of state agents, which from the early days of the occupation has
extended outside Israeli sovereign territory to cover military activities in Palestine
(Kretzmer, 2002: 1; 19–21). The ISC/HCJ’s jurisprudence has given Palestinians the
possibility to petition against actions carried out by the Israeli military or under the aegis
of the military (Dinstein, 2009: 25–26; Shamir, 1990: 785; Weill, 2015: 2). But the court
has also extended this right to Israelis in Palestine: based on a widely criticized inter-
pretation of Article 43 of the Hague Regulations, it considers Israeli settlers part of the

Panepinto
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‘local population’ (Kretzmer, 2002: 65), distorting the purpose of international
humanitarian law (IHL) and disregarding the illegality of transferring parts of the
occupying power’s population to occupied territories (Article 49(6) Fourth Geneva
Convention (GCIV)).
Reflecting on the significance of the Khan-al-Ahmar case, this article considers how
the ISC/HCJ’s far-reaching and unimpeded jurisdiction over the West Bank and Pales-
tinians, teamed with its institutional relationship with the Israeli state, is constructing
Israeli sovereignty over Palestine in the language of civilian law. More generally, this
research explores how cases like Khan-al-Ahmar contribute to transforming a military
occupation into quasi-annexation, to the detriment of individual Palestinian rights as
well as Palestinian territorial integrity. Drawing loosely on the notion of ‘transformative
occupation’ furthered by Bhuta (2005) and Roberts (2006), this article describes the
Israeli control over Palestine a ‘permanent regime of legalized control’,1 in contrast to
the exceptional temporary nature of military occupation, which is now paradoxically in
its 50th year. The notion of a permanent regime of legalized control is also distinct from
both the concept of extraterritorial jurisdiction and sovereignty, although it shares many
of its features and effects. The Khan-al-Ahmar judgment provides a recent example of
how the ISC/HCJ implements the permanent regime of legalized control over the West
Bank, demonstrating how formal proceedings and law facilitate the Israeli grip over
Palestine, without having to openly resort to armed force.
The Khan-al-Ahmar case provides an illustration of how law and, in particular trials,
helps mask political abuse in how Israel deals with Palestinian matters. The legalistic
nature of the Israeli occupation was widely discussed at the 1988 Al-Haq conference in
Jerusalem (Playfair, 1992b: 205). More recent sociolegal scholarship illustrates the
strategic uses of Israeli trials to gain political advantage over Palestinians, as recently
demonstrated by Allo (2016), and the structural challenges of legal resistance in this
context (Weizman, 2016). Using legal procedure for political ends is a widespread
phenomenon (Kirchheimer, 1961) not exclusive to the context of Israel/Palestine.
Indeed, judicial rituals – including high court trials – mask deeper social functions of
law: official procedures carry the ‘potential to dehumanize persons through the use of
conceptual legal masks’, camouflaging the ‘human significance’ and gravity of certain
acts through the illusion that ‘legal reasoning will remain on a level of neutral abstrac-
tion’ (Weyrauch, 1978: 699–670). In other words, using legal proceedings to bolster the
Israeli grip over Palestine is a more sophisticated tool of control and oppression than the
use of military might.
The first part of the article will show how uncertain boundaries and the current
political geography have enabled Israel – and consequently the ISC/HCJ – to enjoy a
far-reaching jurisdiction over the West Bank. The second part will demonstrate how
international laws applicable to the West Bank and their interpretation and implemen-
tation by Israel have created the conditions for a permanent regime of legalized control
that has long outgrown the limits and exceptionality of temporary occupation. The third
and final part will illustrate how the case of Khan-al-Ahmar typifies the notion of
permanent regime of legalized control, by discussing some specific aspects of the
ISC/HCJ extraterritorial jurisdiction in the West Bank, that encompass Bedouin com-
munities and all matters involving settlement activity. More generally, this research

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Social & Legal Studies 26(3)
seeks to widen the debate beyond the legitimizing role of the ISC/HCJ in the military
occupation of Palestine. Instead, this article interprets the permanent regime of legalized
control in place as a route...

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