HCJ 69755-9/24, Yesh Din and the Association for Civil Rights in Israel v. Minister of Defense

Date of submission: September 26, 2024

On May 29, 2024, the Commander of Military Forces in the West Bank signed the Order regarding the Establishment of the Civil Administration (Amendment No. 33) (Judea and Samaria) (No. 2195) 5784-2024. The order, which is, in effect, an amendment to the existing order regarding the establishment of the Civil Administration, states that the Head of the Civil Administration may appoint a Deputy for Civil Affairs and delegate any of his powers to him, including the power to enact regulations. In practical terms, the new order spells the transfer of hundreds of administrative powers from the Head of the Civil Administration to his Deputy, relating to every aspect of governance in the OPT – everything from land administration, planning and building, including monitoring and enforcement, professional licensing, and trade and economic activity to environmental issues, management of nature reserves and archeology and antiquity sites. The Order also states that most Civil Administration staff officers will now work under the Civilian Deputy. The Head of the Civil Administration appointed Hillel Roth as Deputy Head of the Civil Administration for Civil Affairs on the day the Order was signed, without a public tender, and delegated most of his powers to him.

This Order was issued as part of the implementation of the power-sharing agreement signed in February 2023, with the formation of Israel’s 37th government, between Defense Minister Yoav Gallant and MK Bezalel Smotrich in his capacity as Additional Minister in the Defense Ministry responsible for civilian affairs. While the Additional Minister is formally subordinate to the Minister of Defense, the agreement gives Smotrich jurisdiction over a broad range of management and administration fields relating to governmental powers in the West Bank and the management of everyday life in it for all residents. By law, these powers rest with the Military Commander and have been, until recently, managed by the Civil Administration. The separation within the Ministry of Defense effectively means the creation of a new government office inside the Defense Ministry – the Settlement Administration.

The Working Protocol for the Settlement Administration within the Defense Ministry and the Civil Administration outlines how the power-sharing agreement between the Minister of Defense and the Additional Minister is to be implemented. It reveals that not only has the Head of the Civil Administration completely relinquished his powers, handing them over to a Civilian Deputy who does not answer to him, but also that he has no authority to reverse the delegation of powers, veto or change the Deputy’s decisions or intervene in them in any way. This creates the false impression that powers to manage the occupied territory have been reestablished within the Civil Administration when in reality, the Head of the Civil Administration has been divested of any real power over a significant portion of the agency he heads and many of his subordinates – Civil Administration soldiers and civilian employees. The GOC Central Command, who is the military commander in the occupied territory and acts as a stand-in for its sovereign, has also lost his place in the civilian management of the West Bank.

The powers handed to the Civilian Deputy relate to the following areas: land, planning and building, retroactive approval of unauthorized outposts, transportation, infrastructure, nature reserves, archeology, the environment and the economy. These are powers that lie at the core of day-to-day governmental activities and provide complete control over the territory’s management. The powers that have delegated indicate that all Civil Administration resources are currently mobilized for the development and expansion of Israel’s settlement project.

The Order also provides for the divestment and transfer of the power to provide legal counsel to the military government in the West Bank from the Military Advocate General’s Corps, which provides legal counsel to all military units, specifically the military’s legal advisor for the West Bank, to the Legal Advisor to the Defense Establishment. Unlike the military’s legal advisor for the West Bank, whose role, according to international law, is to help the military commander exercise his functions while maintaining security as well as public order and safety in the West Bank, the role of the Defense Ministry’s legal advisor includes helping to implement the minister’s policy. Transferring the function of legal counsel this way creates an anomaly whereby military officers receive legal counsel on governance actions in a territory under military occupation from civilian state officials. The role of legal advisor is now partly defined such that it provides for the implementation of policies designed by an Israeli political actor in a territory where Israeli law does not apply, the Israeli parliament has no sovereignty and whose residents have no status in Israel.

On September 26, 2024, Yesh Din and the Association for Civil Rights in Israel petitioned the High Court, demanding it repeal the newly signed Order along with the Letter of Appointment and Delegation of Powers to the Deputy Head of the Civil Administration for Civil Affairs. The petition argues that the transfer of powers, as defined in the Order, fundamentally changes the structure of Israeli control in the West Bank since it divests administrative and legislative powers from the military and transfers them to a civilian system that has been established within the Ministry of Defense and answers to the Additional Minister in the Ministry of Defense. These changes violate international law, severely impinge on Palestinians’ human rights and further entrench the crime of apartheid. The petition also states that the transfer of powers to the Deputy Head of the Civil Administration is improper as it injects political considerations and prohibited interests into every decision and action taken by the Civil Administration.

In July 2025, the state submitted a supplementary notice in the petition. In the notice, it was stated that a decision had been made to accede to the court’s request and to delete several clauses from the “Document of Understandings and Division of Responsibility and Authority between the Minister of Defense and the Additional Minister in the Ministry of Defense” and from the “Operating Procedure between the Settlement Administration within the Ministry of Defense and the Civil Administration.”

The state implemented changes that somewhat reduce the previously unlimited power granted to Smotrich and the civilian Deputy Head of the Civil Administration. However, these changes do not reverse the broader move led by Smotrich to annex the West Bank and dismantle the Civil Administration, while concentrating powers in his own hands and his ministry, a minister in the Israeli government, which is not and cannot be the sovereign in the occupied territory.

Petition status: pending