Introduction

The UK-based Lawyers for Palestinian Human Rights (LPHR) claims to advance projects “focused on protecting and promoting Palestinian human rights.” LPHR advocates for BDS measures, including the discriminatory UN database of businesses purportedly operating across the 1949 Armistice line.

In December 2019, LPHR filed a complaint with the UK National Contact Point for the OECD against J.C Bamford Excavators Limited (JCB), a construction equipment company headquartered in the UK. The complaint accuses JCB of “involvement in human rights breaches in the occupied Palestinian territory,” due to the alleged use of its equipment in the demolition of structures in the West Bank. This complaint is part of an ongoing BDS campaign targeting JCB for selling construction machinery in Israel (see “Boycott Campaigns against JCB” for more information).

Methodological flaws

Numerous methodological failures demonstrate the political objectives of this complaint. Crucially, LPHR ignores the complexity of land ownership claims and the extensive Israeli judicial review process prior to every demolition order. “Evidence” and data are presented without the context necessary to conclude what structures were demolished, by whom, for what purpose, and the legal process involved.

Additionally, LPHR frequently conflates policies and regulations in the West Bank with those of Jerusalem, despite the two being governed by two totally different legal mechanisms – the Oslo Accords for the West Bank (the mutually agreed framework established by Israel and the Palestinian Authority to govern the territory) and Israeli domestic law in Jerusalem.

Lastly, the complaint relies heavily on unverified claims from highly politicized NGOs such as Al Haq, Who Profits, and B’Tselem, as well as the UN’s Office for the Coordination of Humanitarian Affairs (UN-OCHA), which in turn relies on these and other similarly positioned NGOs.

Unreliable Sources

Al Haq

Al-Haq, a leader in BDS and lawfare campaigns targeting Israel, is one of the main proponents advocating for the Human Rights Council’s discriminatory BDS Blacklist and for an International Criminal Court (ICC) investigation against Israel. Al-Haq’s General Director Shawan Jabarin has been linked to the Popular Front for the Liberation of Palestine (PFLP), designated as a terrorist organization by the US, EU, Canada, and Israel.

B’Tselem

B’Tselem is a central proponent of false accusations of Israeli “war crimes” and “international action” against Israel.  Its publications and advocacy reflect this political agenda.

Who Profits

As part of its support from BDS campaigns, Who Profits  maintains a public database of businesses to be targeted by international activists. It regularly misrepresents legal activity by Israeli and international companies as illegal and in violation of international norms.

UN-OCHA

UN-OCHA maintains funding partnerships with PFLP-linked organizations and coordinates and supports multiple anti-Israel political advocacy campaigns in violation of its humanitarian mandate.

Lack of Credibility

NGO Monitor’s analysis of the LPHR complaint shows that it is rife with questionable evidence and unsupported claims.

Witness Statements, Photographs, and Videos

The bulk of the evidence presented regarding the alleged involvement of JCB equipment in West Bank demolitions is unverifiable witness statements and photographs.  These were largely collected by Al Haq, B’Tselem, and the NGO EyeWitness to Atrocities – which itself received the bulk of its material from Al Haq.

Photographs and videos alone do not provide the factual and legal context in which the alleged demolitions took place. The fact that JCB equipment is photographed cannot explain who is carrying out demolition work and for what purpose, how the equipment was obtained, and what legal measures and administrative developments precipitated the activity.

UN-OCHA Claims Regarding Building Permits

Most of the demolitions referenced in the complaint are the result of illegal building, often occurring in military firing zones and sensitive security locations. LPHR justifies these violations by claiming that that illegal Palestinian construction is the result of difficulty in obtaining building permits. LPHR does not explain at all what JCB has to do with the permitting process.

LPHR bases its apologetics (Palestinians have no choice but to build illegally) on a statement made by UN-OCHA, which in turn, is based on an EU publication, seemingly presenting a low permit approval rate. These statistics, however, are meaningless without context, including the circumstances surrounding the permit requests, the types of requests, duplicative requests, and the reasons for the denials. For instance, if 100 petitions are submitted seeking permission to build in a live military firing range, it would not be unreasonable or illegal for 100% of the requests to be denied, even though the approval rate is 0%.

Additionally, to the extent an approval rate is meaningful, it necessitates comparisons with other regions, including in Israel itself, and in other contexts, such as situations of armed conflicts, areas of military operations, and border zones, which LPHR does not provide.

Inflated Statistics

LPHR cites a UN-OCHA database claim that 6,236 structures were demolished in the West Bank and East Jerusalem between January 2009 and October 2019.  These figures conflate a wide variety of structures, including homes, tents, and smaller, poorly defined examples such as “animal shelters, walls, warehouses and more,” as well as “water pipes, roads, network facilities, among others.” This database also includes purported demolitions in both the West Bank and Jerusalem, despite the fact that these areas have fundamentally different legal systems and different government agencies involved in each. While governance of Area C of the West Bank is pursuant to the Oslo Accords and administered by the Civil Administration, all areas of Jerusalem are subject to Israeli domestic law.

Notably, UN-OCHA’s database claims that 460 structures were demolished in 2018.1 However, elsewhere in the complaint, LPHR cites Al-Haq’s claims that 266 demolitions were carried out during that year.  It is unclear if this discrepancy is the result of differing methodologies between these bodies, contrasting definitions, access to different information and sources, or some other consideration.

Missing Factual Context

The majority of the cases cited in LPHR’s complaint concern illegal Bedouin settlements built without regard to local zoning laws and regulations.  Other states – including in Europe – have difficulty providing services to and addressing the complex and specific issues raised by nomadic communities.

In such circumstances, claims to private or communal land ownership are often made by these communities without substantive documentation as required by law. Moreover, the unrecognized and unplanned nature of these settlements, and their often temporary status, create challenges for enforcing other regulations, such as environmental codes, as well as the provision and administration of basic services such as electricity and healthcare.  These difficulties pose threats to the public safety and health of the communities themselves, as well as the surrounding area.

Moreover, in recent years – backed by the EU and its member states – the Palestinian Authority has advanced the construction of numerous settlements in Area C,2 in violation of the Oslo Accords, in order to establish Palestinian “facts on the ground.” Often, such enclaves are illegally and deliberately established in military firing zones, or other sensitive security locations, entangling Israeli authorities in drawn-out litigation, often funded by politicized NGOs.

For instance, LPHR neglects to mention that Rhas al-Amar (p. 36) is located in an area that has been designated as a closed military firing zone since 1999. According to the Israeli NGO Regavim, aerial photos show that Bedouin families established numerous illegal outposts in the area subsequent to the area’s designation.

Notably, in light of Israeli enforcement of zoning and building laws, the interests of local Palestinians would be better served through construction projects in the PA administered Areas A and B.  The insistence on construction in Area C, without permits, reveals that the primary motivations are political and strategic, as opposed to ensuring Palestinian residents enjoy stable housing with access to basic services.

Lack of Judicial Context                                                                                     

LPHR leaves out significant context and details in the case studies presented in the complaint in order to create an emotive narrative of arbitrariness and cruelty by Israel and downplay the weakness of its claims, in particular the supposed culpability of JCB. The primary way in which LPHR does this is to omit or obscure the lengthy legal proceedings surrounding the incidents it highlights.

All demolition orders can be challenged in Israeli courts, which have issued hundreds of decisions relating to the issue. In particular, even when the building is clearly illegal, the courts will examine the proportionality of a demolition before it will be authorized. While it is not always possible to attribute a specific demolition order to a particular legal challenge, Israeli courts have issued several rulings pertaining to demolitions in villages discussed by LPHR. For example:

Massafer Yatta

LPHR claim

The complaint cites (Appendix 1, Paragraph 1) B’Tselem videos from October 2017 and September 2019 that purport to show JCB vehicles demolishing structures in the Massafer Yatta area:

“On Wednesday, 11 September 2019, at around 8:00 A.M., Israeli Civil Administration personnel arrived with soldiers, Border Police officers, a bulldozer and three diggers at the Masafer Yatta area in the South Hebron Hills. In Khirbet al-Mufaqarah, the troops demolished three pre-fabricated buildings and a tent that had housed four families, 18 people in all, including eight children. Later, they went to Khirbet Khilet a-Dabe’, where they demolished two cinder block and concrete structures that were the homes of two families, with a total of nine members, including five children.”

Israeli judicial review

Legal proceedings in the Massafer Yatta case have been ongoing since 2000, regarding structures that were built illegally in an area defined as a closed military firing zone and used by villagers from the nearby village of Yatta on a seasonal basis only. According to a November 2019 High Court of Justice ruling in a case pertaining to the Khirbet Khilet a-Dabe’ demolitions:

“[The] petitioner fully admits that the building was built without a lawful building permit…[and] did not prove his proprietary connection to the land on which the building is built…moreover…the building was erected in a fire area known as ‘Firing Zone 918.’ (emphasis added).

Abu a-Nuwar

LPHR claim:

The complaint cites (Appendix 1, Paragraph 2) a July 2018 B’Tselem video that claims to show JCB vehicles demolishing dwellings in the Palestinian community of Abu a-Nuwar:

“At around 9:00 am on the morning of 4 July 2018, Civil Administration personnel came with three bulldozers and an escort of dozens of police to the Palestinian community of Abu a-Nuwar, which is in the region of the [Israeli] settlement of Ma’ale Adumim. They demolished nine dwellings and three farm buildings, leaving 62 people – about half of them minors – without a home.”

Israeli judicial review:

Legal proceedings regarding illegally built structures in Abu a-Nuwar have been ongoing since at least 2015. At least one of the buildings demolished in Abu a-Nuwar was found to be a shoddily built and dangerous structure:

“The respondents stated that the building in question was most likely built a few days before the submission of the petition, and that it was a ‘dangerous building that endangers the lives of the students studying in it’ and, which according to an engineering opinion (attached to the response), ‘was built without any foundations’ and ‘may collapse on its occupants at any time.’ Thus, it has been argued that any delay in the demolition of the structure, which constitutes a dangerous safety hazard, may cost human lives. Therefore, it was requested that the temporary order given, which prevents the demolition of the building, be revoked. It was further alleged that the building was built without a lawful building permit, and even without any attempt being made to submit such a permit. In these circumstances, the respondents contend, the petition should be dismissed outright…It was also argued that the petition should be substantively rejected, as it does not present any reason for the court to involve itself in the role of the regional authorities”3 (emphasis added).

Jabal al-Baba

LPHR claim:

The complaint cites (Appendix 1, Paragraph 3) a February 2018 B’Tselem video that supposedly shows JCB vehicles demolishing a family home in the community of Jabal al-Baba:

“At around 9:00 o’clock this morning, Tuesday 20 February 2018, Israeli Civil Administration personnel came with a bulldozer and a police escort (Border Police and Israel Police) to the community of Jabal al-Baba, which is located near the town of ‘Eizariyah, northeast of Jerusalem. The forces demolished the shack that served as the home of the Abu ‘Aweidah family, thereby leaving the 13-person family – including 10 minors – without a home.”

Israeli judicial review:

The area, which was declared state land in 1981, has been the subject of dispute between the State and members of the Jahalin tribe since at least 1995:

“The petitioners, members of the Jahalin tribe, live on land in the Judea and Samaria area, which was declared state land in 1981 …. There is a factual dispute between the parties regarding the date of the petitioners’ settlement of the land. While the petitioners claim that they have dwelt there since the 1950s in agreement with landowners from Abu Dis and Al-Azaria, the respondents claim that only in the year 1988 did groups of members of the Jahalin tribe begin to settle on and near the land…”4

In 2018, the HCJ granted a temporary order freezing any enforcement proceedings against the Jahalin tribe dwelling.

Khirbet Tana

LPHR claim:

The complaint cites (Appendix 2, Paragraph 3) five Al Haq publications that claim that JCB vehicles were used in demolitions in the village of Khirbet Tana on five separate occasions between February 2016 and January 2017:

“Five Al-Haq reports specifically name only the use of ‘JCB’ heavy machinery vehicles in demolition and displacement incidents on five dates between February 2016 and January 2017 in the Palestinian village of Khirbet Tana, in Area C of the occupied West Bank. The same families are named in different reports, indicating that particular families have been adversely affected by multiple demolitions to their home and other property. The demolitions took place when weather conditions would likely exacerbate the experience of forced displacement. One school is also documented as having been demolished.”

Israeli judicial review:

Legal proceedings have been ongoing in the village since 2005 regarding the issuance of permits for unlawfully constructed buildings on the land, which is designated a closed military firing zone. An HCJ ruling delivered in 2009 states:

“The land in question is agricultural land that has been designated as a closed military zone, as it is used as a firing zone…the petitioners were given orders to stop work and to demolish what was illegally built, and were even invited to submit their objections, but chose not to for their own reasons. Demolition orders were executed on July 5, 2005. However, in place of the buildings that were demolished, the petitioners erected new buildings, also illegally … In addition, it emerged during the hearing that this was approved by the petitioners’ attorney, and that the petitioners have permanent residences in Beit Furik, and use the buildings in question on a seasonal basis for agricultural purpose” (emphasis added).5

Khan al-Amar

LPHR claim:

The LPHR complaint contains extensive commentary (Appendix 4, Paragraph 6) on the planned demolition of the illegally built Palestinian village of Khan al-Ahmar, which to date has not been carried out. The complaint cites photographs taken by journalists of JCB vehicles allegedly “paving an access road to Khan al-Ahmar, as a facilitating step towards undertaking its [] planned demolition of the whole Palestinian village and forced displacement of all its residents.”

“Khan al-Ahmar is at substantial risk of being the first of 46 Bedouin communities named in the government of Israel’s ‘relocation’ plan, published in August 2014, to be entirely demolished with all its residents permanently displaced.. On 4 July 2018, the BBC Middle East Correspondent, Tom Bateman, published on his Twitter account a photograph of a heavy machinery vehicle identifiable as a JCB JS200W wheeled excavator, in the vicinity of Khan al-Ahmar…This photograph is corroborated by another photograph taken on 4 July 2018 from an AFP journalist, Ahmad Gharabli, that also shows a JCB vehicle identifiable as a JCB JS200W wheeled excavator, with the caption: Israeli soldiers oversee an excavator digging in the Palestinian Bedouin village of Khan al-Ahmar, east of Jerusalem in the occupied West Bank on July 4, 2018…

These photographs supported widespread reports that Israeli authorities had commenced the paving of an access road to Khan al-Ahmar, as a facilitating step towards undertaking its long-planned demolition of the whole Palestinian village and forced permanent displacement of all its residents.”

Israeli judicial review:

Legal proceedings regarding the illegally constructed Khan al-Ahmar compound have been ongoing since at least 2009.  In 2018, the HCJ issued a ruling on Khan al Ahmar:

“The working assumption is that the building in the Kan al-Ahmar compound of schools and residences is illegal…in previous petitions discussing the state’s decision in this matter, the state decided to suspend the implementation of the demolition orders, in order to find an agreeable and acceptable solution for the residents of the complex… Despite the state’s declaration from 2009 of its intention to evacuate the school, it sought to find alternative and agreeable solutions… However, in this case, the State is of the opinion that the process of examining possible alternatives, which has taken many years, has come to an end. Attempts to negotiate on the basis of the existing framework were unsuccessful…

Most of the petitioners’ arguments are based on the claim that the Jahlin West alternative does not meet their needs…the State has done a great deal, at its own expense, to develop the Jahlin West region…throughout the process possible alternative solutions were examined… The State’s handling of the matter, which delayed the execution of the demolition orders for a considerable length of time, was satisfactory and without defect…As for the arguments of the schoolchildren’s parents… the right to education does not mean the right to illegal building. The difficulty of transporting students an additional 10 km to the school does not justify leaving the school in its current location illegally, nor does it make the decision to carry out the demolition orders extremely unreasonable. A fortiori, when the obligation to provide educational services to students is that of the Palestinian Authority”6 (emphasis added).

As of December 2020, legal proceedings in the case of Khan al-Ahmar remain ongoing.