On 1 September 2021, the Israeli High Court of Justice (IHCJ) confirmed that Israeli soldiers can enter and search Palestinian homes in the West Bank without a judicial warrant, whereas warrants are needed to search the homes of Israeli settlers living in the West Bank. The decision followed a petition by Israeli human rights organisations and Palestinian individuals seeking to limit the military’s wide power to enter and search Palestinian homes without a warrant. The decision was reported by Military Court Watch.
The right to enter Palestinian homes at any time of day or night
Since 1967, Israeli military law has allowed Israeli forces to enter and search Palestinian homes at any time of day or night without a judicial warrant if there may be reason to suspect public order may be harmed. In contrast, the homes of Israeli settlers in the West Bank cannot be entered without previous judicial authorization. The wide sweeping power to enter Palestinian homes without a warrant is found in Article E, section 67 of the Order Regarding Security Provisions (‘Section 67’):
“An officer or a soldier who was authorized to do so in general or in a specific instance are authorized to enter, at any time, any place, vehicle, boat or airplane for which there may be a reason to suspect they are being used, or were used for any purpose which harms public peace, security of the IDF forces, the maintenance of public order, or for purposes of uprising, revolt or riots, or there is reason to suspect that there is a person there who violated this order, or goods, objects, animals, documents to be seized in accordance with this order and they are authorized to search any place, vehicle, boat or airplane and any person on them or coming out of them.”
Night time military raids on family homes
Section 67 of the Order Regarding Security Provisions enables Israeli forces to conduct hundreds of military raids on Palestinian villages and towns in the West Bank each month. Many of these involve night time raids on Palestinian family homes. Night time raids see a group of soldiers (roughly numbering between five and thirty) enter a Palestinian home, sometimes breaking the door to do so, and waking family members, including children. On average, soldiers spend about an hour and twenty minutes in the home they are raiding. Some raids see the home searched and property damaged. Others see soldiers “map” the layout of the home by photographing it or its occupants. Others see a family member arrested. About a quarter of these raids involve violence or the use of physical force, according to Israeli human rights organisation Yesh Din. The raids can leave families, especially children, intimidated and traumatised, compromising their privacy, dignity and mental health.
Night raids on family homes have long been used to arrest children. So far in 2021, 40% of children detained by Israeli forces were arrested at night, according to data collected by Military Court Watch. Night time arrests can involve children being woken and confronted with heavily armed soldiers in their bedroom or home. The practice of raiding family homes at night, whether to arrest children or for other reasons, causes a severe amount of distress to children and their families and fails to consider the best interests of the child as a main consideration in accordance with Article 3 of the UN Convention on the Rights of the Child. As such, the ongoing and widespread use of miliary raids on Palestinian homes is a long-standing human rights problem.
Two Israeli human rights organisations (Yesh Din and Physicians for Human Rights Israel) and six Palestinian individuals petitioned the IHCJ to impose a limitation on Section 67 by requiring that the military first obtain a warrant from a judge before conducting a search of a Palestinian home, unless the urgency of the situation made this impracticable.
A number of arguments were made in support of the petition, including:
The law that rules the West Bank is Israeli military law, which is a territorial law that in theory applies to all residents indistinctively of whether they are Palestinians or Israeli settlers. However, in practice this does not hold true since the requirements to have one’s home searched are different for settlers as for Palestinians. This results in a discriminatory practice that privileges according to race or national identity.
Since June 1967, close to 173,000 “search and arrest operations” have been conducted in the West bank by the Israeli military, most of which involved intrusions into Palestinian homes. Many of these intrusions are conducted at night, which tends to traumatize individuals, entire homes and communities in the West Bank.
The IHCJ’s decision
On 1 September 2021, the IHCJ rejected the petition. The IHCJ noted that that the claim of illegal discrimination due to the disparity between the law on searching Palestinian homes and Israeli settler homes in the West Bank stems from the different legal systems that are applied to these groups, an issue “beyond the scope” of the petition, according to the IHCJ.
Analysis of the IHCJ’s decision
The wording of Section 67 allows for a very broad interpretation of the circumstances under which Israeli forces can search Palestinian homes, allowing for Palestinians’ property and privacy to be breached on ambiguous grounds. According to Human Rights Watch, the Israeli army has drawn on military orders issued in the first weeks of the occupation of 1967, to “deprive generations of Palestinians in the West Bank of their basic civil rights”. Indeed, military raids on Palestinian homes in the West Bank are routine.
The widespread practice of military raids on Palestinian homes involves systematic violations of international law, including the UN Convention on the Rights of the Child. The clear lack of protection for Palestinian children whose homes are raided damages respect for the international rule of law and creates an environment which enables routine ill-treatment and lack of justice.
As Military Court Watch explains, since 1967, Israel has justified the imposition of military law on Palestinians in the West Bank on the grounds that, as occupied territory, it is subject to the provisions established in the Fourth Geneva Convention. At the same time, however, this position is contradicted by Israel’s refusal to apply the same Convention when it comes to Israeli settlements. The law regarding entering and searching Palestinian homes versus the law on entering and searching Israeli settler homes, illustrates this contradiction.
As the occupying state, Israel has a general responsibility under international human rights conventions for the safety, welfare and human rights protection of Palestinians, including Palestinian children, living in the occupied Palestinian territory. As the judicial warrants case shows, Israel has failed to provide Palestinians in the West Bank the rights they are due, which include the right to equal treatment regardless of race, national identity or religion.
Mireia Font Criach