HCJ 2189/20, Raba’a Abed Al-Aziz Abdullah Hamed et al v. Commander of Army Forces in the West Bank

22.3. 2020

Yesh Din and Physicians for Human Rights with six Palestinian petitioners have petitioned the HCJ demanding the Order Regarding Security Provisions be revised so that security forces be required to obtain a judicial warrant before entering and searching Palestinians’ residences. The exception would be in clearly defined cases when immediate entrance is necessary, and the court may not be approached. The petition also asks that the army cease from searching the petitioners’ homes until the requested change is made to the Order Regarding Security Provisions except in exceptional, necessary and urgent cases.

For over 52 years Israeli security forces have invaded and searched Palestinians’ private residences in the West Bank according to powers allegedly granted to them by the Order Regarding Security Provisions. Soldiers and Border Police officers have conducted searches in the homes of tens of thousands, and possibly hundreds of thousands of Palestinian families. These invasions lead to severe and recurrent harm to the dignity and privacy of Palestinian families and communities and compromise their mental health. Such invasions are an effective and influential means the State of Israel exercises to oppress Palestinians and increase its control over them.

All such invasions and searches were undertaken without a judicial warrant or any judicial review. This is because section 67 of the Order Regarding Security Provisions allegedly grants sweeping powers to every officer or soldier authorized by an officer. Such powers are unparalleled in any modern judicial system with the slightest bit of respect for individual rights and liberties.

In addition to the lack of judicial review, the circumstances and grounds for which security forces may decide to enter and search a Palestinian’s home are general, vague and exceedingly broad. The section in question establishes a very low bar for suspicions, which could extend to any action (not necessarily an offence) to justify conducting a search in Palestinians’ residences. Clearly, in certain circumstances, reasonable search laws permit searching private quarters without a judicial warrant. Yet in legal systems that respect the rights of individuals, this is the exception to the rule that requires a judicial warrant, and this exception must be phrased so it is clear, limited and precise.

The practice of soldiers invading Palestinians’ homes harms several interconnected fundamental rights; the most significant of these rights is the right to privacy. “A man’s home is his castle”, invading residences violates the individual’s autonomy over his or her private domain. The petition argues that this arrangement inherently leads to abuse and often arbitrary use of power. In this situation, the executive ranks – but even more troubling, at times the lowest-ranking officers, any officer – have very broad powers and lack any oversight beyond the executive power.

Not only does the practice of home invasions severely harm the right to privacy and other rights, aggressively entering private homes to conduct searches could have severe implications for the mental health of children and adults. Home invasions are potentially traumatic incidents because unknown forces invade the household members’ private domain while violating their control over it. The presence of armed soldiers in the home and the way these forces conduct themselves create a threatening experience and fear of physical harm.

The petition claims that granting such sweeping powers to security forces violates international law and is unconstitutional in Israeli terms. Such powers are extremely unreasonable; they present a severe and unjustifiable affront to fundamental rights and should therefore be revoked. As such, the petition argues that it is impossible to reconcile with such gross and broad harm to Palestinians’ fundamental rights in the West Bank and Israel’s violation of its duties as the occupying power, anchored in both international law and in Israeli law.

In addition to all the aforementioned flaws, the disparity between the provisions for entering and searching the homes of Israelis in Israeli territory and Israeli settlers in the West Bank is abysmal when compared to the provisions governing Palestinian residents of the West Bank. The existence of two legal systems in the West Bank creates flagrant discrimination between Israelis and Palestinians who live in the same geographical territory under a single Israeli regime. As the occupation continues, the discrepancy between the rules governing entry and search of private homes according to the nationality of the residents becomes a criminal arrangement of systematic and methodological discrimination based on nationality.

The petition was submitted as part of Yesh Din, Physicians for Human Rights Israel and Breaking the Silence’s joint project undertaken in 2018 to address the invasion of Palestinians’ homes in the West Bank. The three organizations documented and researched military invasion of homes and its consequences by collecting testimonies from Palestinians whose homes were invaded by soldiers, as well as from Israeli soldiers and officers who participated in such actions.

On October 26, 2020 a hearing was held in the petition. As part of the State’s update submitted to the Court, the key points of the military directive permitting searches and sweeps of Palestinians’ homes in the West Bank were disclosed.

An additional and final hearing in the petition was held in August 2021.

On September 1, 2021, the HCJ decided to accept the State’s position and reject the petition. In the judgement the justices wrote that they found no reason for the Court to intervene and instruct the State that searches in Palestinians’ homes be contingent on a judge’s warrant.

The distinction between the authority to conduct searches in homes of Palestinian residents of the Area [West Bank] and search powers inside the State of Israel stems from a pertinent difference – the security situation, in which the State of Israel must constantly struggle against terrorist organizations’ activities in the Area […] In this context I note I also did not see fit to accept the petitioners’ claims of illegal discrimination due to the disparity between the provisions for searching Palestinians’ homes in the Area and those pursuant to criminal law to conduct searches in the homes of Israelis who live in Israel and the Area. As the respondent argued in his response, said differences stem, inter alia, from the general difference in the legal systems that apply to persons standing trial in Israel and those standing trial in the Area, and this difference is beyond the scope of this petition.

Having rejected the demand that searches be undertaken only pursuant to a judicial warrant, the justices also refrained from deciding in the matter of the classified military directive that permits searches and sweeps of Palestinians’ homes. This military directive is not public; it stipulates how searches are to be conducted and is not included in the Order regarding Security Provisions. The State revealed the directive’s essence during proceedings. The justices noted our right to petition the Court again to challenge the fact that the State did not include this directive in primary legislation. Justice Vogelman wrote: “The Commander of the Area is advised to determine the appropriate normative framework to incorporate the directive and duly consider the fact that while the Order Regarding Security Provisions grants the authority to search grounds, the operative rules currently appear in the directive (which has the status of a general order issued by the General Staff Operations Directorate […]) and not in the Area’s laws. The petitioners’ rights are also reserved in this matter, as are the arguments of all parties, once other legal measures are exhausted by law.”

On October 26, 2020 a hearing was held in the petition. As part of the State’s update submitted to the Court, the key points of the military directive permitting searches and sweeps of Palestinians’ homes in the West Bank were disclosed.

Status: rejected