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Israeli High Court confirms only Palestinian homes can be entered without a warrant in the West Bank

[6 October 2021] – On 1 September 2021, Israel's High Court handed down a decision in a petition seeking to limit the military's power to enter and search Palestinian homes in the West Bank.[1] Since June 1967, Israeli military law has permitted Israeli soldiers to enter any Palestinian home during the day or night "if there may be reason to suspect", inter alia, that "public order may be harmed".[2] The petition sought to impose a limitation on this power by requiring that the military first obtain a warrant from a judge before conducting a search, unless the urgency of the situation made this impracticable.   

A number of arguments were made in support of the petition, including the following:
  1. Israeli military law in the West Bank is territorial and in theory applies to all residents in the area including Palestinians and Israeli settlers. However, in practice, Israeli homes in the West Bank can only be entered and searched with a warrant, as is the case in Israel. This inevitably gives rise to a situation of discrimination based on race or national identity. 
     
  2. Since June 1967, the Israeli military has conducted approximately 173,000 "search and arrest operations" in the West Bank, the vast majority of which involved military incursions into Palestinian homes.[3] Many of these home incursions occur at night which has the tendency to traumatize individuals, households and entire communities throughout the West Bank.
In dismissing the petition, the Court noted that the claim of illegal discrimination due to the disparity between the provisions for searching Palestinian homes in the West Bank and those that apply to Israeli settlers stems from the different legal systems that are applied to these groups - an issue that was "beyond the scope of this petition".  
 
It is worth recalling that since June 1967 Israeli authorities have justified the imposition of military law on Palestinians in the West Bank on the grounds that the area is occupied territory and subject to the provisions of the Fourth Geneva Convention. However, the same authorities contradict this position by rejecting the application of the Convention as far as it relates to prohibiting settlement activity. This cherry-picking of legal obligations undermines confidence in, and potentially the long-term viability of, a genuine "rules-based order" - the one unassaible advantage the West has in an increasingly autocratic world. 
 
 
 
 
 
 


[1] The petition was filed by Yesh Din, Physicians for Human Rights with six Palestinian petitioners. For more information see: https://is.gd/xtUeYQ 
[2] 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.
[3] A Life Exposed: military invasions of Palestinian homes in the West Bank (2020) - A joint report by Yesh Din, Physicians for Human Rights Israel and Breaking the Silence. See page 12.