Rights and Accountability 5 December 2016
Palestinians in Chile are suing three Israeli high court justices in a Chilean court for their role in authorizing the construction of Israel’s wall in the Bethlehem area of the occupied West Bank.
Several Chilean lawmakers, spanning the spectrum of political parties in the country, joined Palestinian plaintiffs, some of whom are Chilean nationals.
But a Chilean court rejected the suit on 2 December after reviewing the complaint over the course of last week.
Five Chilean judges were assigned to investigate the allegations, according to the Tel Aviv newspaper Haaretz, which first reported the lawsuit. The judges were scheduled to issue their first determination in the case in mid-December.
Supreme court appeal planned
The legal team says they will appeal the decision to the Chilean supreme court.
Nicholas Paves, a former Chilean governor, filed the complaint.
Paves says the lower court’s rejection was based on erroneous reasoning, including that Israel has not ratified the Rome Statute, which established the International Criminal Court, and that the region is not in a permanent state of conflict and therefore not subject to international humanitarian law.
Paves says that Chile’s constitution allows the suits because it enshrines the concept of universal jurisdiction, and that the construction of the wall uproots a population that is protected under international humanitarian law.
The lawsuit alleging crimes against humanity was filed on 28 November under Chile’s doctrine of universal jurisdiction, which allows Chilean courts to prosecute suspects of international crimes even if they are from countries that are not members of the International Criminal Court.
Though Israeli military leaders and politicians have previously been pursued in several countries under universal jurisdiction, this is the first known case against members of the judiciary. The complaint cites the Nuremberg trials which established a precedent by prosecuting lawyers and judges who helped implement and execute the policies of the German Nazi regime.
In 2004, the International Court of Justice issued an advisory opinion stating that Israel’s wall violates international law.
The Chilean lawsuit names former Israeli chief justice Asher Grunis and justices Neal Hendel and Uzi Vogelman as defendants.
On 2 April 2015, after a nine-year legal battle, the three justices accepted the Israeli military’s proposal to build the wall so that it would keep the religious complex composed of a Catholic monastery and women’s convent on the same side as the Palestinian village of Beit Jala and the rest of the West Bank, but annex the surrounding agricultural lands in the Cremisan Valley.
The ruling instructed the military to provide an opening in the wall to allow Palestinians access to their agricultural lands.
The Chilean lawsuit asserts: “In this particular case, it is the defendants who create, through their resolutions, a legal scaffolding that pretends to give an image of legality to that which is clearly criminal.”
Livelihoods cut off
Though the April 2015 ruling cut off Palestinian landowners from their land, at the time it was celebrated as a relative victory.
The military’s original path of the wall would have separated the monastery from the convent as well as from the Palestinian villages to which it is intricately connected.
The entire path of the wall is within the occupied West Bank and critics argue that its real purpose is to confiscate fertile Palestinian land for Israeli settlements.
In July 2015, the Israeli high court ruled the military could begin construction on a segment of the wall dividing land belonging to the town of Beit Jala.
In August, the military moved into the area, uprooting olive trees and preparing for construction of the wall. But the military disregarded the court’s order and proceeded with construction along the same route the justices had earlier invalidated.
This action severed dozens of families from their land and livelihoods. Nader Abu Ghatas, 55, told the Israeli human rights group B’Tselem that on 17 August 2015, he was surprised to see Israeli bulldozers working on his family’s land.
“The other landowners and I were given no prior notice of confiscation or planned work on our plots,” Abu Ghatas said. “I stayed in the area throughout the day and watched the bulldozers and tractors uproot the ancient olives trees and wrecking the plots. It was a huge disaster for me and for my neighbors.”
Residents immediately appealed to the high court to halt the construction, but the justices refused to intervene.
Over the next six months, Palestinians exhausted legal measures to halt the wall’s construction. In January 2016 the Israeli high court made its final ruling against the villagers.
The Chilean lawsuit holds that the Israeli judges’ decisions are a “clear example that the defendants form part of the system of occupation itself and therefore its decisions will only go in one direction: to justify and endorse the unjustifiable from the perspective of international law.”
The suit notes that as the case advances through the courts in Chile, more people may be named as defendants. Haaretz reports that the justices who eventually authorized the wall’s route were Hendel, Zvi Zylbertal and Miriam Naor, who succeeded Grunis as president of the Israeli court.
As part of the investigation, Chilean judges could summon Israeli judges for questioning or interrogate them in Israel.
Chile has a large Palestinian diaspora, many of whose members trace their roots to the Bethlehem area.
The lawsuit emphasizes this historic connection between Palestine and Chile.
- israeli high court
- Beit Jala
- Israel's wall in the West Bank
- universal jurisdiction
- international humanitarian law