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The International Law of Occupation by Benvenisti, Eyal (2012-02-23)

8 The Israeli Occupation of the West Bank and Gaza

From: The International Law of Occupation (2nd Edition)

Eyal Benvenisti

Subject(s):
Occupation

(p. 203) The Israeli Occupation of the West Bank and Gaza

This chapter outlines some aspects of the Israeli administration in the territories it occupied during the June 1967 war. Until the occupation of Iraq in 2003 (see Chapter 9) this was the only occupation since World War II in which a military power has established a distinct military government over occupied areas under the framework of the law of occupation. This was also the longest occupation, much beyond the short-term period envisioned by the framers of the occupation regime. The length of time enables us to assess the various challenges encountered during long-term occupation, and also to appraise whether and how the law of occupation should address such challenges.

8.1  The Status of the Territories Occupied by Israel since 1967

Israel gained effective control over various territorial units in the June 1967 war beyond the so-called “Green Line” which had been delineated by the 1949 armistice agreements between Israel and its neighbors.1 These territories differed from one another in their geographic and demographic conditions, as well as in their legal status. The Golan Heights, part of Syria, a high plateau overlooking the Israeli Upper Jordan Valley and the Sea of Galilee, was evacuated by the great majority of its inhabitants during the war. In December 1981, the Israeli Knesset adopted a law applying the Israeli “law, jurisdiction and administration” to the Golan Heights.2 The significance of this law was mainly symbolic, since the Israeli administrative and legal systems had effectively been introduced in the Golan area through military enactments in 1970. As in the case of the 1967 application of the law to East Jerusalem, the text of the 1981 law was vague enough to permit the interpretation that the measure did not affect the formal annexation of the area into Israel.3 Nevertheless, the measure was internationally received as a purported annexation, (p. 204) and consequently was condemned by the UN Security Council as “null and void;”4 the General Assembly even added that this was an “act of aggression.”5

The Sinai Peninsula, a vast, sparsely populated desert, was under Egyptian sovereignty. The Sinai was occupied until 1982, when Israel withdrew from it according to the peace treaty of 1979.6 The densely populated Gaza Strip had been under Egyptian military administration from 1948 until 1967. Egypt never claimed any title over Gaza, nor did it express any intention to annex it. Rather, Gaza retained its distinct status as part of the former British Mandate of Palestine.7The so-called West Bank (of the Jordan River), including the eastern part of Jerusalem, had been since 1948 under Jordanian administration, and Jordan claimed to have annexed it in 1950. This purported annexation of parts of the former Mandatory Palestine was, however, widely regarded, including by the Arab League, as illegal and void, and was recognized only by Britain, Iraq, and Pakistan.8 Thus, in contrast to the Golan Heights and Sinai, which were under the sovereignty of existing states, neither the West Bank nor Gaza had in 1967 a government that could validly claim to represent its interests as its sovereign. The different statuses of these territories, and developments pertaining specifically to some of these areas, necessitate a distinct analysis of the status of each of them. The discussion below will concentrate on the occupation of the West Bank and Gaza.

8.1.1  East Jerusalem

On June 28, 1967, the Israeli government applied the Israeli “law, jurisdiction and administration” over East Jerusalem, which had been part of the West Bank under Jordanian administration since 1948, and put it under the existing Israeli municipality of (West) Jerusalem.9 To the international community, the act was explained not as an annexation, but rather as an administrative measure aimed at equalizing the municipal services to all the residents of the single municipal area and at the protection of the Holy Places.10 In 1980 the Israeli legislature, the Knesset, enacted “Basic Law: Jerusalem the Capital of Israel,” which asserted that (p. 205) “Jerusalem, complete and united, is the capital of Israel.”11 The term “annexation” is absent, there is no definition of the boundaries of Jerusalem, nor a reference that Israel’s control of the area was exclusive. This ambiguity enabled in 1993 the reference to “Jerusalem” as one of the issues the status of which needed to be further negotiated between Israel and the Palestinians.12 But in the year 2000 the Knesset amended the Basic Law by referring explicitly to the boundaries of the city as determined by the government’s order of June 28, 1967, and stipulated that Israeli control be exclusive.13 The amendment also added that changes to this Basic Law would have to pass through the enactment of another Basic Law approved by more than half of the Knesset members.

The Israeli Supreme Court stopped short of interpreting the government’s order as effecting annexation. As Justice Cohen reasoned, “The mere application of an Israeli norm to an area situated outside Israel does not necessarily make that area a part of Israel.”14 But after the passing of the Basic Law in 1980, the Court regarded it as effectively “annexing” East Jerusalem.15

Internationally, despite the initial roundabout manner of the first two attempts to change the status of Jerusalem, these measures were understood as attempts to annex East Jerusalem, and were criticized accordingly. The Security Council and the General Assembly considered the 1967 act “invalid.”16 The Security Council condemned the 1980 Basic Law as a “violation of international law,” in addition to its being “null and void,” and decided not to recognize it, and to continue to deem Israel the occupant of the area.17 The International Court of Justice (ICJ), as mentioned supra, treated the unilateral measures in the same way.

For the purposes of the law of occupation, it is sufficient to note, without getting into the details of the arguments that have been presented concerning the weight of Israel’s claim to East Jerusalem,18 that under Article 47 of the Fourth (p. 206) Geneva Convention of 1949 (GCIV), the law of occupation continues to apply even if the annexation was legally effective.19 Even if an occupant asserts a reasonable—albeit contested—claim for sovereignty, it is not allowed to use its effective control for its claim to prevail. A different view would undermine the entire structure that the law of occupation establishes for the protection of occupied communities.20

8.1.2  The West Bank and Gaza

Although the framework of the military administration of the West Bank (excluding East Jerusalem) and Gaza (and during the first fifteen years of occupation, also of the Golan Heights and Sinai) followed the dictates of the law of occupation, their de jure applicability to the territories was never officially recognized by the Israeli government. Neither was the GCIV formally recognized as applicable to the territories. It was the unique status of the West Bank and Gaza—territories with no prior sovereign governments—that gave rise to this official attitude.21

In 1971, Meir Shamgar, then Israel’s attorney general, asserted the Israeli position with respect to the applicability of the GCIV: Israel would not acknowledge the de jure applicability of the GCIV, but would observe “its humanitarian provisions.”22 The stated reason was that under the second paragraph of Article 2 (common to all the Geneva Conventions of 1949), the Conventions apply only to “occupation of the territory of a High Contracting Party” (emphasis added); Israel never recognized that the West Bank and Gaza were territories of Jordan (p. 207) and Egypt, respectively; the formal recognition of the applicability of the GCIV might therefore have implied a recognition of the sovereign title of those former administrations.23

This position has been widely and vehemently criticized by the United Nations, the International Committee of the Red Cross (ICRC), states, and scholars.24 According to these, there was no place for Israeli concern for an implied recognition of sovereignty, since the applicability of the Geneva Conventions to territories occupied during wars could and should have been explained as mandated by the first paragraph of Common Article 2, which does not link a territory to a High Contracting Power,25 and therefore it would have been difficult to infer recognition of sovereignty from the decision to apply the GCIV. This concern was, in any case, irrelevant to the occupations of Sinai, the Golan Heights, and even Gaza (before and after the 1979 peace treaty between Egypt and Israel), since no questions of sovereignty were raised with respect to those areas (Israel did not challenge Egypt’s title to Sinai or Syria’s to the Golan Heights, and Egypt never claimed sovereignty over the Gaza Strip).

The Israeli interpretation of the conditions for the applicability of the GCIV seems curious when compared with the only implicit rejection of the 1907 Hague Regulations’ (“Hague Regulations”) applicability (and, as will be explained infra, with the Israeli Supreme Court’s recognition of the applicability of the Hague law). As noted, the characteristic difference between these two instruments lies in their different scope: while the Hague Regulations primarily protect governmental interests, the GCIV seeks to protect the individuals under foreign rule (Article 4 on “Protected Persons”). Therefore, if the special status of the West Bank and Gaza should have carried any legal effects, the natural target would have been the Hague Regulations, not the GCIV. Indeed, as Allan Gerson argues, in view of Jordan’s lack of title over the West Bank, Israel was not required to protect Jordanian interests under the Hague Regulations, as opposed to the interests of the local Palestinian population.26 Similarly, Israel was not required to protect Egyptian interests in the Gaza Strip. But when it comes to the interests of individuals under occupation, the application of the GCIV is warranted, notwithstanding conflicting claims of sovereignty.27(p. 208)

The Israeli Supreme Court has long refrained from explicitly declaring the de jure applicability of the law of occupation to the territories. The Israeli government never raised its reservation before the Court, and thus the Court did not find it necessary to resolve the matter.28 Initially the court applied the Hague Regulations to Israeli actions in the West Bank and Gaza, but without elaborating on their de jure applicability and while reserving the question of the applicability of the GCIV.29 In 1988, however, the question of de jure applicability came squarely before the Court, when a petitioner argued that with the signature of the 1979 Peace Treaty with Egypt, the Israeli military administration in the Gaza Strip had ended, and therefore the local commander lacked powers to order the petitioner’s deportation.30 Now acting as the President of the Court, Justice Meir Shamgar rejected this claim, holding that the law of occupation did apply to the Gaza Strip, simply because Israel continued to control the area.31 The necessary and sufficient condition for that law’s applicability, according to Justice Shamgar, was effective control over the territory. This reasoning, which is supported by the analysis in Chapter 3,32 was not compatible with the government’s equivocal stance regarding the applicability of the Hague Regulations to the territories. Moreover, the finding was incompatible with the government’s claim concerning the inapplicability of the GCIV. For if in customary law what matters is effective control, and the legal status of the territory is never relevant, it is not clear why the legal status supposedly became so critical to the drafters of the GCIV, who decided, per the Israeli government’s argument, to qualify its applicability. While in this case the Court stopped short of referring explicitly to and rejecting the official position of the Israeli government,33 later judgments, since (p. 209) the year 2002,34 have begun to refer directly on the provisions of the GCIV as constraints on the powers of the occupation administration. Ultimately it was the state that invoked the GCIV as the source of authority to set up the Separation Barrier or Wall (“Wall”) on West Bank territory.35 Thus, as a practical result of the Israeli Supreme Court’s jurisprudence, the official Israeli refusal to recognize the applicability of the law of occupation did not prove a stumbling block to judicial review on the basis of the law of occupation.36

In 2004 the ICJ stated unequivocally:

The territories situated between the Green Line…and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories [to be detailed infra] have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.37

As an occupant, Israel was required to apply the GCIV since

The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.38

8.1.3  The Israeli-Palestinian Interim Accords and their legal significance

On September 13, 1993 the government of Israel and PLO representatives signed a “Declaration of Principles on Interim Self-Government Arrangements” (DOP also called “the Oslo Accords”). The signing was preceded by an exchange of letters, on September 9, 1993, between PLO Chairman, Yasser Arafat, and Israel’s Prime Minister, Yitzhak Rabin. The letters and the DOP include the mutual recognition by the representatives of the parties of the other’s existence and of its right to live side by side “in peaceful coexistence.”39 Explicit Palestinian recognition of Israel appeared in Chairman Arafat’s letter40 and the Israeli recognition of the (p. 210) Palestinian people and of the PLO as its representative appears in Prime Minister Rabin’s response.41 This mutual recognition was also reiterated in the DOP.42 The DOP explicitly recognized the right of the Palestinian people “to govern themselves” in the West Bank and Gaza Strip (Article III.1). The DOP sets out a rather tight timetable for the various stages of its implementation. The arrangements of the transitional period were to be replaced with the permanent status arrangements by 1999. Negotiations on the permanent status agreement were to start no later than May 1996. In the meantime the DOP envisaged a gradual assumption of responsibilities by a “Palestinian Authority” (PA) as provided for by subsequent interim agreements (excluding responsibilities related to Jerusalem, the Jewish settlements, military locations, and Israelis).43

The Israeli-Palestinian Interim Agreement of September 28, 199544 provided for a very detailed delegation of authority from the occupation administration to the PA which would be governed by a Palestinian Council elected to office in “direct, free and general political elections…in order that the Palestinian people in the West Bank, Jerusalem and the Gaza Strip may democratically elect accountable representatives.”45 This agreement defined three types of areas of the West Bank—“Area A” (Palestinian towns), “Area B” (Palestinian villages and hamlets), and “Area C” (all the rest, including army bases and Israeli settlements). The Israeli forces would “redeploy” from Areas A and B but would retain control over Area C. The agreement stipulated that “[n]either side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations,” and declared that “[t]he two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period” (Article XXXI (6–7)).

The gradual redeployment started, and elections to the Palestinian Council took place in January 1996 “with very general participation by the population.”46 The Palestinian institutions obtained the necessary political legitimacy to govern. Writing in 1997, Raja Shehadeh concluded that “[t]here is little chance now for widespread opposition to the Council and what it stands for and the Agreement that brought it into existence.”47(p. 211)

What was the legal significance of these accords from the perspective of the law of occupation? Writing in 1994 I argued that with the transfer of actual control to an indigenous Palestinian government, Israel would no longer be regarded as an occupying force in those areas controlled by the PA.48 Article 47 of the GCIV suggests that a government installed by the occupant does not absolve the occupant from its obligations. But, “one may argue that a democratic election, recognized by the international community, cannot be considered to be a change introduced by the occupying power and may therefore end the occupation.”49 But as the question of occupation is a question of fact, what mattered ultimately was the actual transfer of powers to the PA.50 This process proved to be, in the words of the ICJ, “partial and limited,”51 as a result of subsequent events, which included the assassination of Prime Minister Rabin on November 4, 1995, and a widespread suicide bombing campaign by Palestinian terrorists in early 1996 that contributed to the rise of a right wing government in Israel. In early 2000, in the wake of the so-called Second (or Al-Aqsa) Intifada, Israeli forces routinely entered Palestinian areas and retained forces at their discretion, thereby demonstrating their continuing effective control also over areas under PA administration.52

In September 2005 Israel withdrew unilaterally from the Gaza Strip, retaining control of access to the Strip by air, sea, and the Israeli border. Egypt controlled the border with Sinai. A debate ensued whether the occupation in Gaza has ended, with the Israeli Court finding that it did.53 If there was a question, the war in Gaza in 2008–9, during which despite heavy fighting the Israeli forces did not gain con (p. 212) trol of most of the Gaza Strip, demonstrated that Israel was no longer exercising effective control in Gaza.

8.2  The Actual Administration of the West Bank and Gaza

8.2.1  Institutional infrastructure

Despite the distinctions between the occupied areas, and the legal arguments about their status, and even despite the Interim Agreements from 1993 onwards (for Gaza—until the withdrawal in 2005), the type of governance adopted in all of them was the same: military government according to the principles of the Hague Regulations and the humanitarian provisions of the GCIV.54 From the perspective of the commanders of the West Bank and Gaza even the transfer of powers to the PA was implemented by military orders, and were thus considered—from the army’s perspective—revocable.

Upon occupation in 1967, a separate military administration was established for each region. The military administrations were based on the law in force immediately prior to the occupation. The “Proclamation concerning Law and Administration (no. 2)” of June 7, 1967, issued by the military commander of the West Bank declared:

The law in existence in the Region on June 7, 1967, shall remain in force, insofar as it does not in any way conflict with the provisions of this Proclamation or any other proclamation or Order which may be issued by me, and subject to modifications resulting from the establishment of government by the Israeli Defense Forces [IDF] in the Region.

Similar proclamations were issued to the other territories. Thus, despite Israel’s nonrecognition of the Jordanian annexation of the West Bank, it respected the latter’s existing laws in order to maintain public order.55 Nor were any objections raised regarding the validity of laws passed in the Egyptian occupation of Gaza Strip. During the entire period of occupation, this basic principle of retention of preoccupation law, subject to the occupant’s power under the Hague Regulations to modify it from time to time, has been adhered to. The only significant exception to this rule was in the Golan Heights, where according to the Israeli military administration, the lack of local executive and judicial personnel, as well as of indigenous lawyers and law books, necessitated the introduction of the Israeli law (subject to security enactments) and the Israeli judicial system to replace the Syrian legal system.56(p. 213)

8.2.2  Legislation

The pre-occupation local law formed the second tier of the two-tiered legal system of the territories. It was subordinate to the primary tier, which was the legislation of the military administration, the “security enactments.” The system was immune to outside influence: new laws introduced by the ousted government were not respected.57 The first tier consisted of various types of enactments, all of which were organized in an internal hierarchy. This hierarchy was, however, not organized according to the type of enactment (order, regulation, announcement, license, etc.), but according to the rank of the promulgator: the commander of the Israeli Defense Forces in the region was empowered to enact primary legislation; other army commanders, and since 1981 the head of the civil administration,58 issued secondary enactments.

The Israeli Manual for the Military Advocate in Military Government instructed the authorities on how to enact orders.59 There were issues of form, according to which every enactment must be translated into Arabic, must carry a consecutive number, and must be published in an official series available to the general public. There were also issues of substance, which determined, inter alia, that the enactments could not be inconsistent with international law (with “special attention being paid to the norms of the Hague Regulations and the GCIV”),60 and that they could not be retroactive. In the basic statement, mentioned supra, the Proclamation concerning Law and Administration, the military commander announced that the publication of enactments could be made “in any manner I may deem fit.”61 The practice, however, was more or less in line with the manual’s instructions. The various instruments were first circulated as stenciled copies to those who appeared on the mailing list of the authorities (anyone could ask to be placed on the list). At a later stage, the instruments were published in pamphlets.62

8.2.3  Administration

Upon occupation the military administration established a system of administrations whose authority was based on the military orders issued by him or on the local (p. 214) laws that assigned powers to the ousted government. By the Proclamation concerning Law and Administration all the public authorities concerning the occupied region were vested in the military commander and were to be exercised by him or by whomever the commander assigned such authority. If the local law required the responsible authority to obtain the prior consent or advice of anyone, that obligation was abrogated by the same enactment. In 1981 the military commander delegated some authorities to a newly established “Civilian Administration” which theoretically could have been a blueprint for an autonomous Palestinian government under Israeli control, a matter that was at that time negotiated between Israel and Egypt. In fact, however, this administration continued to be manned by Israelis and subject to military control.63

The operation of municipalities and village councils continued to be governed by the local inhabitants according to the local laws. Order no. 80 issued on August 2, 1967 extended the incumbency of the municipalities, and the first local elections were held in 1972. The second time elections were held was in 1976. In preparation for these elections, the Law concerning the Administration of Municipalities was amended by Military Order no. 628 which extended the right to vote to every resident, thereby revoking prior restrictions that gave suffrage only to male property owners. These municipal elections brought to office PLO-backed candidates who had no intention of cooperating with the occupants.64 In 1981, when mayors refused to cooperate with the Head of the Civil Administration the latter replaced them with his appointees, and never called for a further round of elections.

Public participation in two important administrative agencies was eliminated. Order No. 418 concerning Towns, Villages, and Building Planning Law from 1971 flattened the hierarchical system of the Jordanian building planning law and transferred the authorities of the district planning committees to the central planning council. The latter, manned by appointees of the military commander, among them Jewish settlers, would allow no formal input by the Palestinian inhabitants.65 This had adverse effects on the possibility of Palestinians obtaining building permits,66 and turned the permit system into a disciplinary tool of applicants or those many whose frustration with the system prompted them to build without a permit,67 granting or denying building permits according to the applicants’ willingness to cooperate. The same Order provided for setting up “special local planning committees” to be appointed by the central planning council. An amendment to this Order from 1975 (Order no. 604) authorized the commander to set up such special (p. 215) committees to “areas which do not include towns or village councils” (namely Israeli settlements) and also to resurrect the defunct district councils to serve them. This enabled a measure of self-government in the area of urban planning in the settlements.

The military commanders established control over certain strategic resources in the occupied territories. Military Orders from July 1967 authorized the occupant to administer lands owned or administered by the ousted governments (the so-called “state lands” as well as property belonging to Jewish refugees from before 1948) and property of Palestinians displaced during the 1967 war.68 Military Order 92 from August 15, 1967 vested all the powers concerning the management of water resources in the West Bank in a person appointed by the military commander of the area. The management of the water resources in the West Bank and in Gaza was centralized by the respective commanders.69 The water system in the West Bank became fully integrated with the Israeli water system. As both Israel and the West Bank share common aquifers which provide both with significant parts of their consumption,70 Israel insisted on retaining control over water uses also under the Interim Agreement. The agreement assigns the power “to deal with all water and sewage related issues in the West Bank” to a Joint Water Committee (JWC), composed of equal numbers of Palestinian and Israeli representatives. It operates by consensus and thus gives Israel veto rights over approving new uses.71

8.2.4  The court system

The military administration set up military courts, which had exclusive jurisdiction to adjudicate infringements of security legislation, especially violations of the Security Code which defined offenses against the occupation forces.72 The military courts sat in panels of three army officers, at least one of them a lawyer, all appointed by the area commander on the recommendation of the IDF’s advocate-general.73 (p. 216) Following the Israeli Supreme Court’s recommendation,74 a military court of appeals was established in April 1989. In addition to the recent appeals procedure, convictions could be contested through petitions.75

A 1988 amendment to the Security Code added a provision to the effect that “[t]hose who exercise judicial functions are, in judicial proceedings, subordinate to nothing but the law [the local laws76] and the security enactments.”77 This provision, in addition to formally ensuring the impartiality of military judges, had another outcome: it blocked in these tribunals the opportunity to invoke international law against the authorities.78

In addition to the military courts, other tribunals were set up. Prominent among them was the administrative tribunal titled the Appeals Committee. This institution had a modest beginning as a tribunal that handled appeals against decisions regarding abandoned property,79 and property of the local government.80 As more and more issues were subsequently allocated to this tribunal, it gradually became the administrative court of the occupation authorities, where many administrative acts could be challenged.81 It could issue subpoenas,82 and later was given power to issue injunctions.83 Once this committee had become an institutionalized tribunal, the administration began to allocate some adjudicatory functions to special committees.84

Formally, the members of the committee were independent of the administration.85 In fact, however, they were appointed by the area commander, and could be dismissed by him.86 They sat in panels of three. At least one of them was required (p. 217) to have legal training. The outcome of the proceedings was not a judgment that was binding on the authorities, but a recommendation that the area commander could accept or reject. The Israeli Supreme Court strictly enforced principles of due process with regard to the proceedings of these committees,87 but unless a committee acted ultra vires the Court was unlikely to hear a petition against its decision: under principles of Israeli administrative law, the Supreme Court could not replace the committee’s discretion with its own. As a result, the existence of the Appeals Committee, and the subsequent enlargement of its jurisdiction, had the effect of limiting the scope of affairs brought to review before the Israeli Supreme Court.

The local courts continued to operate. The occupant did not restrict their jurisdiction except for claims against its own forces.88 The major change, in the West Bank, was the abolition of resort to the Court of Cassation, which sat in Amman, Jordan, outside the occupied territory.89

8.2.5  The Israeli Supreme Court

The Israeli Supreme Court in its capacity as the High Court of Justice adjudicates complaints against the Israeli public administration. At the outset, the Court was hesitant to extend its jurisdiction to the acts of the military authorities in the occupied territories, and emphasized the government’s acquiescence to having its measures scrutinized by the Court. In subsequent decisions, the Court made it clear that its jurisdiction over occupation measures was mandated by law, and independent of the government’s consent.90

The Court has declared its competence, under Israeli law, to review the measures of the military administration in the territories in light of the Hague Regulations, as customary international law, and in light of Israeli administrative law.91 Initially the Court did not view itself as empowered to examine the administration’s conduct under the GCIV because the Court viewed the Convention as treaty law whereas under Israeli law only customary international law is automatically incorporated into Israeli law.92 Subsequently, however, the Court began to review mili (p. 218) tary policies under the GCIV as the military commanders invoked the treaty in support of their position.93

The jurisdiction exercised by the Israeli Supreme Court was unique.94 Although the legality of occupation measures has been examined by national courts on various occasions, in no prior occupation were such measures scrutinized by a domestic court of the occupant that was competent to prevent them from taking effect (the occupation of Iraq added another example, that of the British court).95 The government’s readiness to have its measures adjudicated was explained as being motivated both by humanitarian concerns96 and by the wish to intensify ties between local residents and the Israeli system, encouraging them to have faith in the Israeli legal system.97 The Court was also concerned with humanitarian considerations when it decided to allow petitions of inhabitants of the territories.98 In extending its jurisdiction to the territories, the Supreme Court stated that it would pursue humanitarian concerns, even giving them precedence over traditional international norms that called for the conservation of the status quo ante.99

Unfortunately, this ideal vision did not persist. Faced with unbridgeable conflicts between Arab and Israeli interests, especially in matters of security and Jewish settlement in the territories, the Court’s decisions were not always perceived as giving equal weight to interests of the occupied community. Indeed, the fact that the Court almost always upheld the administration’s security considerations (at least until 2002) led some to conclude that the Court’s principal (p. 219) function was to bestow an aura of legitimacy, in Israeli public opinion, upon the occupation.100

One important trait in the Supreme Court’s early jurisprudence was its stated policy of deference to the discretion of the military authorities whenever the latter invoked security considerations. In such cases, the Court’s scrutiny was usually confined to an examination of whether the act was ultra vires, and whether the reasons cited did not simply hide irrelevant or illegal considerations that were the true or dominant motives.101 This policy was not unique to matters concerning the occupied territories. It was consistent with the Court’s decisions regarding internal Israeli matters in which the authorities invoked security grounds for their action.102 In that early phase, only in two cases—the Elon Moreh case and Electricity Company of East Jerusalem Case (No. 2)103 did the Court declare that security concerns were not the real motive behind the administrative acts and therefore nullified the acts. In both cases, the Court learned the real underlying motive from the authority itself. Since the fact-finding procedure in the Israeli Supreme Court when it sits as the High Court of Justice is usually based only on affidavits, it is generally difficult to challenge the motives put forward by the authorities.104 During the first intifada (1987–92) the Court stood guard to prevent abuses of power by individual members of the security forces,105 although it did not question the legality of the harsh security measures themselves, such as deportations or the demolition of homes.

A major shift in the Court’s policy toward the military administration occurred in 2002, two years into the second intifada, and coinciding with an (p. 220) indictment for war crimes brought against Israeli officials in Belgium and the entry into force of the Rome Statute of the International Criminal Court.106 Basing itself on the GCIV and principles of Israeli law, the Court began to set limits to punitive security measures adopted by the Israeli army in the context of deportations from one region to another, the use of human shields, and targeted killings.107

With regard to procedural due process in military tribunals in the territories, the Supreme Court was in general—but with significant exceptions108—strict in insisting that the procedural rights of individuals be respected, whether the tribunal was a military court,109 the Appeals Committee,110 or the advisory committee established under the Emergency Regulations of 1945.111 When security reasons were not invoked, the Court was able to apply the general criteria of Israeli administrative law, such as the relevance of considerations, impartiality, nondiscrimination, and reasonableness.112

While the Court definitely gave precedence to security considerations, a significant positive outcome of the Court’s role should nevertheless be acknowledged. While most of the decisions turned petitions down, some, on crucial issues, were accepted,113 and in a few others the Court issued recommendations that the administration found hard to resist.114 In other cases the government reversed its (p. 221) acts in view of a petition.115 One can assume that the prospects of adjudication by the Court did loom large among the considerations taken by the authorities, and created an effective if only partial deterrent.116

The law of occupation defined the set of relevant considerations only to a certain extent. On the one hand, the interests of Israel and of Israelis who resided outside the territories were regarded as irrelevant for the occupation administration to consider,117 unless the administrative act in question could also benefit the indigenous population.118 The theory was that the occupation administration was authorized, according to the Court, to cooperate with the Israeli government on matters that were of interest both to Israel and to the territories, as two sovereign governments would do.119 Therefore, for example, the construction of a major road connecting two parts of Israel had to be justified—and was justified—on the theory that it would also serve Palestinian drivers.120 Even the building of the Wall was explained as promoting the security interests of the army in the territories rather than the security interests of Israel within the Green Line, or the wish of the settlers to be included on the Israeli side of the Wall.121

But on the other hand, while Israel’s interests were not formally relevant, the Court early on recognized as relevant the interests of the Jewish settlers. According to the Court, these settlers are part of the population under the jurisdiction of the occupant and therefore in promoting public order and civil life in the occupied territory, the settlers’ interests are of valid concern, on a par with the Palestinian population.122 In retrospect, it is this 1972 judgment by Justice Landau which should be regarded as pivotal in encouraging the settlement project. In this case the Court found that the military commander had acted in line with his responsibilities under the Hague Regulations when he had assigned the Israeli Electricity Company (rather than a Palestinian company) (p. 222) as the provider of electricity to the Hebron area (where one of the first Jewish settlements, Kiryat Arba, has just been established). The Court then adds a one sentence unreasoned obiter dictum: “for this purpose it is necessary to regard the residents of Kiryat Arba as those who were added to the local population and they too are entitled to receive a stable supply of electricity.”123 By this the Court empowered the military commander to regulate the settlements and the lives of Israelis in the occupied territories from then on. Notice the passive voice referring to how the settlers find themselves in Kiryat Arba, as if the military commander was unaware of and unaccountable for how they “were added” to the region under his control or devoid of authority to expel them. This judgment “fundamentally alter[ed] the decision calculus as to what measures might be justified.”124 More importantly, it provided a necessary component for enabling the Israeli settlements project, which, as will be discussed infra, depended on an extensive and sophisticated use of the executive and legislative powers of the occupant to create an environment that would facilitate the movement of Israeli citizens to the West Bank and Gaza. While most legal attention has been devoted to the question whether the settlements violated Article 49(6) of the GCIV, the legality of the exercise by the occupant of its discretion under Article 43 of the Hague Regulations for enabling the settlement project went almost unexplored. Obviously, however, but for this judicial authorization granted early on, the extensive settlements project might have been blocked.

Having recognized the Israeli settlers’ interests as relevant considerations for its exercise of authority, the military commander was permitted to balance the interests of the Israeli settlers against those of the Palestinian residents, which led to policies that upheld the interests of the settlers against those of the Palestinians due to the security risks allegedly posed by the latter. The Supreme Court tended to accept the army’s assessment,125 although at times it found specific restrictions on the movement of Palestinians on West Bank roads or on their access to their agricultural lands in the vicinity of Jewish settlements as excessive and therefore illegal.126 Following the same logic, the Court recognized the settlers’ standing to (p. 223) invoke the Hague Regulations, for example to protect their environment against the operation of stone quarries nearby.127

The “soft” treatment of the settlements and settlers (and of the commander’s authority over them) by the Israeli Supreme Court can be explained, although not justified, by the fact that the settlement policy was perhaps the single most controversial issue within the Israeli body-politic in connection with the administration of the territories. Therefore, petitions against the expropriation of lands (for the purpose of erecting settlements) put the Court in a politically difficult position. In decisions concerning land expropriation for the purposes of erecting settlements or building highways, the Court openly acknowledged its concerns with the adverse political implications of its rulings. In the only case where a settlement project was declared illegal, the Elon Moreh case, Justice Landau expressed the

fear[] that the Court will appear to be abandoning its proper place and descending into the arena of public debate, and that its decision will be received by one part of the public with acclamation and by another part with utter emotional rejection…[and that] the proper status of the Court as an institution, beyond the disputes which divide the public, is likely to be prejudiced.128

The decision in the Elon Moreh case did not challenge the legality of expropriations in general. Rather, the reason for the ruling was the lack of military necessity for that particular taking. The Court never criticized settlement plans after the Elon Moreh case,129 nor did it otherwise impede the integration of the territories with Israel. Since the issues of settlements and economic integration were so contentious within Israeli public opinion, the Court’s stance would seem politically warranted: the parliament is the proper place to resolve issues that divide the public, not the court. The problem, in this unique situation, was that only part of the concerned public enjoyed access to the legislative process. The Court did not—indeed, for the same political reasons, could not—balance the inherent political inferiority of the Palestinian population by requiring the government to refer to the Knesset to receive a clearer mandate for its policies. In addition, since the relevant criterion for adjudication would have been international law, any ruling against the government under the law of occupation (and any consequential clearer mandate from the Knesset) might have depicted Israel as a violator of international law, tainting the government’s general claim of legitimacy under this law. In light of these considerations, and facing a government that was committed to expanding the settlements, the Court carefully avoided a ruling on their legality, and rejected a general petition against the settlement project as “unjusticiable: [due to the] intervention in questions of policy that are in the (p. 224) jurisdiction of another branch of Government, the absence of a concrete dispute and the predominantly political nature of the issue.”130

8.3  1967–93: Integration of the Territories with Israel

With the commencement of occupation in 1967, the Israeli government resolved to create a “common market,” which would consist of Israel and the territories. An official publication explained the new economic reality: “The Six Day War abolished to all intents and purposes the ‘Green Line’ that in the past demarcated the Israeli sector from the administered territories. Naturally and unavoidably, these areas are becoming dependent upon Israel for all their economic and service needs.”131 This policy was described and approved by the Israeli Supreme Court, as being consistent with—indeed, imperative under—the law of occupation:

In view of the economic realities created by the conjunction of political facts (military government) and geography (territorial contiguity) directly bound up with the relative sizes of the economies and the sectors comprising them (agriculture, industry, employment), the economy of the territories is umbilically tied to the economy of Israel. For this reason, it was decided at the time of the establishment of the military government that the two economies would not be separated…along the lines, as it were, of the Armed Truce before 1967. To separate them as aforesaid would impede the possibility of return to orderly life and prevent the effective observance of the duty regarding the assurance of “la vie publique.”132

The integration of the economies was motivated not only by the desire to maintain and promote public order and civil life in the territories, as mandated under Article 43 of the Hague Regulations. Another consideration was that the hope that economic prosperity and a higher standard of living that the integration would bring to the local population would create incentives for them to interact peacefully with the Israeli authorities.133

The policy of economic integration was implemented through various modifications in all the local legal systems involved. These modifications included, inter alia, the abolition of “internal” customs barriers and the erection of a single “external” barrier for international trade, the unification of indirect taxation, and the enabling of free passage of people between Israel and the territories. The measures taken for these purposes are outlined below.

8.3.1  Specific integrative measures

Import and Export: Imports and exports between Israel and the territories were exempt from import duties. Imports from abroad (including Jordan) directly to (p. 225) the territories were subjected to the same duties as goods imported through Israeli ports.134 There were no restrictions on the export of Israeli goods into the territories.135 With regard to movement in the other direction, a general permit was issued according to which exports from the West Bank and Gaza to Israel were not restricted. Specific permits were needed to export certain specific goods, such as agricultural produce, from the territories to Israel or abroad.136 This permit system enabled the authorities to control the flow of these commodities to Israel, to prevent the saturation of the Israeli market, and to control supply and pricing. Direct trade between the territories and Jordan or Egypt was generally permitted, but trade in some goods required special permits.137

Indirect Taxation: In 1976 the value-added tax (VAT) was the first indirect tax to be introduced in the territories, simultaneously with its introduction in Israel.138 In 1983 a levy of 1 percent was imposed on any purchase of foreign currency in the territories.139 A 15 percent tax was imposed in 1986 on the transfer of foreign currency abroad for the purchase of foreign goods and services.140 These two orders also followed identical Israeli laws from the same period.141 The levy on vehicles was introduced in 1985, to coincide with the Israeli levy on vehicles, one of the measures of the Israeli austerity plan.142 This order imposed a levy on the owner of each vehicle according to year of manufacture and engine size. A levy on credit in foreign currency was introduced in late 1987, following its introduction in Israel.143 It imposed a 3 percent tax on credit in foreign currency extended by banks to local importers, mainly through letters of credit.144

Legal Tender and Foreign Currency Regulation: Israeli currency was introduced as legal tender in the territories. In Gaza it was the only currency, while in the West Bank the Jordanian dinar was also legal, and the exchange rate between the two (p. 226) currencies was adjusted by the authorities according to fluctuations in world markets.145 For Israelis, however, including those who lived or did business in the West Bank, the dinar was a foreign currency, and the same restrictions that applied to transactions in foreign currency applied to the dinar as well.146 The same restrictions on trade in foreign currency, foreign stocks and bonds, and gold that were imposed in Israel applied in the territories.147 The only exception was that local residents of the West Bank were allowed to transfer dinars out of the area.

Banks: The banks that operated before the 1967 war were ordered immediately afterwards to freeze all transactions. Subsequently, the Palestine Bank in Gaza and the Cairo-Amman Bank in Nablus were reopened. Israeli banks opened branches in the territories, which conducted business according to Israeli law and were controlled by the Israeli supervisor of banks. Before the reopening of the locally owned Cairo-Amman Bank, the local Banks Law was amended to reflect Israeli banking practices, and to provide full control over the bank’s activities. The bank was placed under the supervision of the military authorities, with accounts in the Bank of Israel.148

Anti-Inflationary Measures: The inflation that affected the Israeli economy had similar effects in the territories, and the measures taken to reduce it were similar. Thus, for example, the Israeli law that established an indexing clause in all pecuniary judgments was also introduced in the territories.149 Under the 1985 austerity plan, all prices of goods and services were frozen in Israel. No one was allowed to raise prices without the prior approval of both the minister of finance and the minister of industry and trade. The same price freeze was imposed in the territories.150 Subsequent changes in Israeli law regarding the price freeze were simultaneously implemented in the territories. An amendment to the Order from 1988 stipulated that price hikes decreed by the Israeli authorities would also apply in the territories.

Employment: A substantial component in the economic integration was employment of residents of the West Bank and Gaza in Israel. Employment in Israel, with comparatively higher wages, was a major reason for the significant rise in the standard of living in the territories. Given no comparable alternatives in the territories, the occupied population was dependent on employment in Israel. The fact that most of the workers from the territories were employed in unskilled or semiskilled jobs made certain sectors of the Israeli economy dependent on them, (p. 227) at least in the short run.151 The flow of workers to Israel was regulated by a general permit, which specified the conditions under which residents of the territories were allowed to enter Israel. Among other conditions, the residents were not allowed to stay in Israel overnight and were required to work only where they were sent by the labor exchanges operating in the territories.152 Those employers who hired through the labor exchanges were required to deduct from their employees’ wages percentages equal to those deducted from comparable wages of Israeli workers for social benefits provided under the Israeli National Insurance Law, even though the non-Israeli workers were not entitled to the same National Insurance benefits as Israelis. The requirement for equal deductions was necessary to ensure equal net wages for Israelis and non-Israelis in comparable jobs so that employers would not prefer non-Israeli employees. The surplus created from the excess deductions from the non-Israeli workers’ wages was transferred to the Israeli treasury. Part of it was transferred to the civil administration in the territories and was used for improving local social services, and the rest was apparently placed in a special fund to be disposed of when the status of the territories would be determined.153

Traffic and Insurance Laws: In order to facilitate traffic within the entire area of Israel and the territories, the Israeli traffic code replaced the local codes.154 The Order Concerning Compensation to Victims of Road Accidents155 introduced in the territories the Israeli law that provided for strict tort liability for bodily injury caused by the use of motor vehicles. The Order Concerning Insurance of Motor Vehicles156 prescribed mandatory insurance for motor vehicles, similar to that in Israel. Insurance policies for motor vehicles generally covered accidents both in Israel and in the territories. Thus, anyone driving from one region to the other157 did not have to adjust to different rules.(p. 228)

8.3.2  Extending the jurisdiction of the Israeli civil courts to transactions in the occupied territories

The Israeli civil courts assumed jurisdiction over people and property in the territories and over events occurring there. In effect, the courts exercised this jurisdiction in all cases except those in which all the parties to the litigation were non-Israeli residents of the territories (and therefore in matters with no Israeli interest). From the point of view of the Israelis, this situation ensured that they would not have to sue in courts in the territories even when the litigant was a local resident. From the point of view of the Palestinian population, the consequence was that they had the option of suing Israelis in Israel, and were liable to be sued by Israelis in Israeli courts.

This jurisdiction was formally concurrent with the jurisdiction of the local courts of the territories (with regard, of course, to issues that were under the jurisdiction of these courts). But these local courts suffered from poor conditions.158 Moreover, it was difficult to summon Israeli witnesses (including members of the military administration) to testify was difficult to achieve in these courts, and the prospects of enforcing judgments on Israeli defendants were slim.159 In addition, it became physically dangerous for Israelis to travel to the Arab town centers where the local courts are situated.

The decision to extend the jurisdiction of Israeli courts to the territories was not taken in the Knesset. It came about as the result of measures taken by both the Justice Ministry and the Israeli Supreme Court. The minister of justice, pursuant to his/her general power under the Courts Law to regulate procedure in the civil courts, prescribed that service of “documents”160 from an Israeli civil court be effected in the territories in the same manner as in Israel.161 This technical provision was interpreted by the Israeli Supreme Court in Alkir v Van der Hurst Rotterdam162 as exempting the plaintiffs in the Israeli court from the otherwise applicable requirement of obtaining the court’s permission to service (p. 229) the process abroad,163 and as a result wiped out, for the purposes of personal jurisdiction, the pre-1967 borders, extending the jurisdiction of Israeli courts to all the residents of the territories, even in matters that had no contact points with Israel.164

Usually the service was effected through the mail or personally by the plaintiff. No special procedure was required. The military commander issued an order respecting the methods of service prescribed by the Israeli regulation.165 Once a judgment had been rendered, its execution was effected by its submission to special Execution Bureaux, one for each territory.166 Initially, these bureaux executed only judgments rendered against Israeli residents of the territories, but because of difficulties in enforcement during the intifada, their powers were extended to cover judgments against Palestinians.167 There was no need to submit the judgment to the prior scrutiny of a local court.168 The fact that the Israeli court orders would be enforced in the territories, with the local authorities having no discretion not to (p. 230) respect them, was decisive in an Israeli court’s decision to adjudicate a claim concerning title to real estate located in the territories.169

The validity of the regulation that extended the courts’ jurisdiction has not been challenged directly in the Israeli courts. Nevertheless the Israeli Supreme Court did refer to this issue. In a series of decisions by the president of the Court, Justice Sussman, the Court approved the validity of that extension of the courts’ jurisdiction under international law. The Court examined it in view of the general international norm regarding states’ right to establish extraterritorial jurisdiction, and not with regard to the law of occupation, apparently since it viewed the latter law as delimiting only the powers of the military government and not those of the national legislature. The general international norm, the Court reasoned, did not apply in this case since the Israeli jurisdiction did not interfere with the sovereignty of any other state:

Israel is exercising [the sovereign’s suspended powers in the territories] in fact, by virtue of the law of occupation under the rules of international law…[the Israeli court] acts only in theory in the territory of another sovereign. In fact, as long as the territory is held by the IDF, the authority is in the hands of Israel, and there is no fear of violation of any other authority.…170

In other words, in a situation of occupation, there are no limits imposed by customary international law on the exercise of extraterritorial adjudicative jurisdiction by the occupant’s country over the residents of the occupied areas, provided that this jurisdiction is prescribed by the laws of the occupying country and not by military orders issued by the commander of the occupying force. This reasoning takes what is advantageous to Israeli interests from both worlds. It pierces the veil of the separate authority of the military administration of the territories by regarding Israel as in control of the occupied territories, and as such exercising there sovereign powers, even if only de facto.171 At the same time, however, the reasoning does not impose on the Israeli government the same limits that international law imposes on the military administration as an occupant. The outcome of this reasoning is to relieve Israeli branches of governments (when operating directly, not through the military commanders) from restraints under international law when they seek to regulate activities in the occupied territory.172 But such an outcome is incompatible with the constraints of the law of occupation. Indeed, the occupant’s government, as well as its national courts, are obliged under the law of occupation to respect the same duties that are imposed on the occupation administration. The legality of the (p. 231) extension of the Israeli civil courts’ jurisdiction to the territories should have been examined under the tests of the law of occupation.173

According to Israeli law, the civil courts may use their discretion to decline to exercise their jurisdiction. Faced with actions against non-Israeli residents of the territories, the Israeli Supreme Court adopted a flexible criterion, the notion of the “natural forum,”174 for the use of the discretion to decline jurisdiction.175 Despite the flexibility of the criterion, its application in a number of claims concerning residents of the territories has been fairly steady, to such an extent that one can restate the rules as follows: when all the parties to the litigation are non-Israeli residents of the territories, and the cause of action arose in the territories, the Israeli courts will not entertain the case.176 When either the plaintiff or the defendant is an Israeli citizen or resident, the court will adjudicate the claim.177

Using their extended jurisdiction, the Israeli courts contributed to the application of Israeli norms to the territories. Thus, the application of Israeli tort and contract laws to transactions in the territories was the outcome not of enactments by the military administration but rather of the Israeli civil courts’ implementation of judicially developed unique conflict-of-laws rules. In view of the intense interregional economic interaction, it is surprising that only a few cases regarding the proper law that applies to transactions between Israelis and Arab residents of the territories were adjudicated.178 Nevertheless, the few relevant court decisions set forth a clear rule, applicable generally to almost all such transactions.

An Israeli claimant was injured in a fire that had broken out in the Palestinian defendant’s factory in the West Bank. The district court judge decided to apply Israeli law to determine the parties’ rights and duties. After reviewing the relevant Israeli (p. 232) conflict-of-laws rules, the judge decided to adopt a unique rule, which she deemed more proper in light of the economic union between Israel and the territories:

Many Israelis live, work, travel in Judea and Samaria, and have commercial relations with the local residents. This state of affairs creates an anticipation that not only the legal proceedings concerning a tort in Judea and Samaria which involves both Israeli residents and local residents shall be held in a competent court in Israel, but also that the Israeli law shall be applied.

The Israelis, even if present in Judea and Samaria, do not conceive themselves as under Jordanian law, and do not anticipate that the norms practiced in Jordan will be applied to their case. They are linked to Israel and to Israeli law.

These facts influence also the anticipation of the other side—in this case the tortfeasor who is a local resident.179

This decision relied on an opinion of the Supreme Court, which emphasized the sui generis status of the territories. Since the territories were not foreign countries, but in fact formed an integral part of Israel, the courts were obliged to recognize the legal ramifications of the situation:

The routines of daily life linking the State of Israel, and its residents, with the Administered Territories, and their residents, converge into an economic system that is unified in fact. There are multiple commercial and economic ties. Transportation lines are open; in the area of employment there is a convergence; and in fact in all these areas, there are usually no barriers or restrictions.180

These reasonings, in general, could be applied to most tort claims involving Israelis and Palestinian residents of the territories. Moreover, the attitude of the courts seemed to indicate a general preference for Israeli over local law, which affected almost all private transactions between Israelis and Palestinian residents of the territories.

This indirect extension of private Israeli law to the occupied territories also carried benefits for Palestinian claimants who had been harmed by Israelis. The extension of Israeli labor law to the relations between Israeli employers and Palestinian employees benefited the latter because Israeli labor law offered more protection to the employees in relation to local law. The extension of the Israeli tort law to acts and omissions of the Israeli army offered Palestinian victims the opportunity to sue for their injuries, particularly for those sustained during the first intifada. Initially, both the Israeli government and lower courts balked at recognizing their duties. They regarded these labor contracts as governed by the local law of the territories, rather than by Israeli law.181 The Israeli government invoked the doctrine of “acts (p. 233) of war” to deny its responsibility in torts for intifada-related injuries, and when lost in court initiated a statutory change in the law. But the Supreme Court ultimately protected the Palestinian claimants by applying Israeli labor law to the employment of Palestinians by Israelis in the West Bank182 and by declaring unconstitutional a statute which limited the state’s tort liability for intifada-related injuries.183

8.3.3  The Jewish settlements and their integration into Israel

The measures described supra enabled the creation of a single market encompassing Israel and the territories. Until the first intifada, this single market allowed almost entirely free movement of people, goods, and services across the “Green Line.” It stopped short, however, of providing similar economic conditions within the different regions. An important line still divided the economy of the territories from that of Israel. Yet this line was not the “Green Line.” Rather, the Israeli economy encompassed the areas of Israeli settlements in the territories. The conditions in the settlements were almost identical to those within Israel. These settlements were enclaves where Israeli law applied exclusively, connecting them legally, economically, and socially to Israel.

Israeli settlement in the West Bank and the Gaza Strip began shortly after the Israeli occupation. In the first decade the settlement policy was explained primarily on the ground that Jewish settlements in the territories played a role in defending the IDF’s security apparatus. In line with this policy, the settlements were established on lands that were requisitioned for military purposes, based on the occupant’s power under the Hague Regulations.184 When the Likud Party came to power in 1977, the settlement project expanded and massive land acquisitions were based on an Israeli interpretation of the domestic law—which was not consistent with the way the law had been interpreted and applied by the local administrations—that identified certain types of immovable property as belonging to the state and hence subject to the occupant’s authority to utilize according to Article 55 of the Hague Regulations. With this new interpretation of the definition of “state lands,” the scope of this type of property was greatly expanded and there was little need formally to seize private property for establishing Jewish settlements.185 A rather limited quantity of land was (p. 234) privately purchased by Israelis during the late 1970s and early 1980s. These transactions were often accompanied by large-scale fraud and corruption, on the part of purported land owners, land speculators, and Israeli firms, selling land not in their ownership to Israelis. The Israeli authorities amended the local law, and thereby enabled individuals who were not Jordanian citizens or residents or of Arab origin, to buy land in the West Bank. The restrictions on such purchases, laid down by Jordanian legislation, were either repealed or mitigated by Israeli military orders.186

The extension of Israeli law and administration to the settlements took effect mainly through two parallel systems: the extraterritorial application of Israeli laws by the Israeli Knesset and government to the Israeli residents of the settlements, and the adoption of Israeli laws by the military administration to be applied exclusively in the settlements.

The laws extraterritorially extended to Israelis187 in the territories included the criminal law,188 fiscal laws,189 the Elections to the Knesset Law,190 and the National (p. 235) Insurance Law.191 The duty to serve in the IDF was also imposed on settlers, as was the requirement to register in the Israeli Population Register.192 Secondary legislation by government ministers was very effective in equalizing economic conditions in the settlements with those in Israel: ministers were empowered to extend to the territories Israeli regulations concerning the quality of goods and services;193 state insurance was extended to cover loss to property in the territories incurred because of its “Israeli character” and loss of agricultural investments of Israelis in the territories due to drought;194 Israelis who quit their jobs in Israel in order to settle in the territories had a right to severance payments from their former employers as if they had been dismissed from work;195 an administrative decision declared the settlements to be “development areas” under the Israeli Encouraging Capital Investments Law, 5719–1959, thereby creating economic incentives to reside or invest in the settlements. In one case the Israeli Supreme Court held that this method of extraterritorial extension of laws was perfectly legitimate under international law. In its answer to settlers’ claims that the extraterritorial extension of the Income Tax Ordinance was incompatible with the powers of the occupant, the Court rejected the link between these issues, maintaining that the law of occupation does not control the extension of laws by the occupant’s government to its citizens in the occupied territory.196

The second method used for extending Israeli laws relied on the basic communal arrangement of Israeli life in the territories, namely, the settlements as municipal units. The enactments of the military authorities created a special legal system in the settlements, a system that adopted Israeli law, administration, and jurisdiction while at the same time excluding them from otherwise applicable local laws. The system was based on by-laws (one set for Regional Councils, which are rural settlements, and another set for Local Councils, which include urban settlements), which were enacted by the two military commanders of the territories. The municipal regime of the settlements enacted by the by-laws was fashioned according to the Israeli municipal system. Many (p. 236) provisions in the by-laws explicitly incorporated Israeli primary and secondary legislation, including provisions relating to planning and building and to licensing of businesses. Changes in these Israeli laws were to take effect automatically within the local municipalities.197 In short, the by-laws created in the settlements a legal environment similar to that found within Israel. Since the by-laws were signed by the military commanders, they enjoyed the status of primary legislation in the territories, immunizing the settlements from local laws, which would otherwise be applicable.198

An amendment from 1997 (Order no. 1453) extended the territorial scope so that they can apply to individuals located “in the vicinity” of settlements. This amendment also enabled the application of the settlements’ legal regime to so-called “illegal outposts.” These were settlements that sprouted without formal authorization by the military administration due to commitments given by the Israeli government during the Oslo process not to build new settlements. While the administration would not approve those outposts, it would refrain from evicting them.

A 1983 amendment to the by-laws expanded the scope of Israeli laws that applied in the settlements and also enabled the application of Israeli administration and jurisdiction to the settlements. In an unusual method of drafting, this was achieved through the extension of the jurisdiction of the Court of Domestic Affairs. Originally these courts were empowered to adjudicate claims between residents of the settlements and their municipalities. Under the amendment, the courts’ jurisdiction was enlarged. Not only were they empowered to adjudicate issues arising under the by-laws and the regulations enacted by the municipalities, they were also granted jurisdiction over violations of certain security enactments, such as traffic violations and infringements of building restrictions. But the most important grant of jurisdiction referred to six schedules that were attached to the by-laws in this 1983 amendment. These six schedules represented six general fields of law (“welfare law,” “statistics law,” “personal status law,” “education law,” “health law,” and “labor law”). Over the years six more general areas were added (“agriculture law,” “condominium law,” “environment protection law,” “consumer protection and commerce law,” “communications law,” and “religion laws.”) Each schedule contained laws that were incorporated into the by-laws in their entirety, including every piece of secondary legislation, announcement, license, and other administrative instrument, and including any changes that would take effect in (p. 237) Israel from time to time. Some of these laws copy existing Israeli supervisory bodies by “authorizing” them to act also in the realm of the settlements.199

The Court of Domestic Affairs had jurisdiction to adjudicate any matter arising under these laws and to apply their substantive provisions. In this way, dozens of Israeli laws were incorporated to cover the residents of the settlements, among them the Israeli laws that determine the personal status of the inhabitants, interfamily rights, and succession.200 The domestic courts were also empowered to assume the functions of the Israeli small claims courts, thereby adjudicating small-scale claims regarding private transactions.201

The “domestic court” system is two-tiered: a “domestic court of appeals” would hear appeals from the courts of first instance.202 The judges of these courts are nominated by the military commander from among the acting judges of Israeli courts constituted by the laws of the State of Israel.203 The domestic court of Kiryat Arba, for example, consists of judges of the magistrates’ court of Jerusalem; the domestic court of appeals consists of judges of the District Court of Jerusalem, which is also its place of venue. Indeed, this appointment system assimilated the domestic courts as far as possible into the Israeli civil courts. In fact, the website of the Israeli Judicial Authority includes the courts of domestic affairs of the settlements as part of the courts of the State of Israel.204 This arrangement was analyzed (but not criticized) by the Supreme Court while rejecting a petition to appeal a decision of the district court of appeals from the domestic court. These Israeli courts, including the Supreme Court, never stopped to inquire whether they had the competence to operate as creatures of the occupant’s law.205

The 1983 schedules also gave Israeli administrative officials direct powers over the settlements with regard to the laws mentioned in the schedules.206 Following this authorization, the director general of the Israeli Ministry of Education and Culture integrated the educational institutions of the settlements into the ministry,207 and (p. 238) the director of the Employment Agency established a labor exchange to handle employment of Palestinians in the settlements.208

Finally, two other methods for extending Israeli laws should be mentioned: enactments of the military commander other than those in connection with the municipal by-laws, and the jurisprudence of the Israeli civil courts. The military orders relevant to economic conditions in the territories extended the Israeli minimum wage and the adjustment of wages to the cost-of-living index to all those who are employed by Israelis.209 Another order established a special execution bureau to deal only with judgments rendered in Israel against Israelis (natural or legal entities).210 The jurisprudence of the Israeli courts in choice-of-laws issues also contributed to the extension of Israeli law to the settlements, as torts committed in the territories between Israelis were held to be governed by Israeli law.211 Probably the same rule applied to contracts between Israelis.212

8.4  1993–Onward: Segregating the Palestinian Population

Toward the late 1980s, with the onset of the first intifada Israel had to reconsider its policy of economic integration. With growing concern inside Israel about the free movement of Palestinian workers into Israel, the “umbilical cord” that connected the occupied territories had to be severed, at least as far as the movement of Palestinians was concerned. No longer able to justify policies on the ground of improving the conditions for the local population, the basis for policy making was security of Israeli interests. This process led eventually to the decision, made during the second intifada, to construct a barrier that would separate the West Bank from Israel as far as the movement of Palestinians was concerned.

Fortunately for Israel, the Oslo Accords had provided since 1993 a framework that could support disengagement from caring for the Palestinians and for their (p. 239) segregation. The very map that separated the West Bank into three types of areas—“A”, “B”, and “C”—facilitated a policy of segregation not only between Israel and the occupied territories, but also between the West Bank and Gaza, and within the West Bank. The Palestinian towns in Area “A” (about 3 percent of the West Bank and 26 percent of the Palestinian population) and the villages in Area “B” (about 26 percent of the land and 70 percent of the population) became an archipelago of Palestinian-controlled areas surrounded by Area “C” (about 70 percent of the land, 4 percent of the Palestinians and all the Israeli settlements) controlled by the IDF.213 A system of roadblocks and permits enabled the IDF to regulate from the outside the movement of Palestinians to and from their dwellings and thereby to control their lives and also to try to elicit cooperation with the Israeli authorities. The fragmented territory also limited the ability of the Palestinian institutions to plan and implement development projects.214 The same territorial allocation of responsibilities relieved the Israeli occupant from the responsibility to provide for public order and civil life within Areas “A” and “B.” This has become the responsibility of the PA which became dependent on foreign aid to sustain its activities. Retaining control over 70 percent of West Bank territory allowed the IDF to ensure Israeli interests in security, in protecting and promoting the settlements, and in maintaining control over the use of the West Bank water resources.

Despite the allocation of competences, the IDF continued to exert authority over Palestinians including those residing in Area “A” through the military courts which continued to exercise jurisdiction over crimes—as defined by Israeli military law—committed by Palestinians. In 1997, to make sure that these courts had jurisdiction over acts committed by Palestinians in Area “A” despite the Interim Agreements, the military commander promulgated a clarifying amendment that rendered the courts competent to try “anyone who committed an offence in area A, which harmed or was designed to harm the security of the [West Bank].”215 As Sharon Weill shows, the military orders and their permissive interpretation by the military courts “facilitated a judicial domination of the army over the Palestinian civilian population.”216

8.5  Assessment According to the Law of Occupation

8.5.1  The settlements

Aside from the economic, social, and political repercussions of the creation of Israeli enclaves in the territories, the question of the intrinsic legality of such enclaves under the law of occupation arises. The conventional debate regarding the legality of Israeli settlement in the territories revolves around Article 49(6) (p. 240) of the GCIV, which provides that the “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The settlement policy has been criticized as a breach of international law by the ICJ, the Security Council, the ICRC, and various countries and commentators.217 On the other hand, an Israeli interpretation of this Article218 asserted that the settlements did not contravene the GCIV since “Arab inhabitants have not been displaced by Israeli settlements,” and that the Article “refers to State actions by which the government in control transfers parts of its population to the territory concerned. This cannot be construed to cover the voluntary movement of individuals…not as a result of State transfer but of their own volition and as an expression of their personal choice.”219 This interpretation is doubtful, since the purpose of the Article must be to protect the interests of the occupied population—the protected persons—rather than the population of the occupant,220 and therefore whether or not the settlers move freely to the occupied territory is beside the point. While the Israeli authorities did not forcefully deport their nationals to the occupied areas, the movement was not merely voluntary: both the Israeli government and the military commanders were heavily involved in the settlements project. In 2005, in response to a petition by Jewish settlers against their eviction from the Gaza Strip, the state attorneys pointed out that the settlers remained at all times subject to the will of the occupant: “the setting up of the Israeli settlements in the areas of Judea and Samaria and the Gaza Strip was subject to the approval of state authorities. Moreover, state authorities were involved, this way or the other, in setting up those settlements, including by allocating resources for this purpose.”221

To a certain extent in light of this example, the scope of the prohibition on transferring the occupant’s population has been strengthened and refined over the (p. 241) years. Additional Protocol I of 1977 included the transfer of the occupant’s population in the list of “grave breaches” of the Geneva Conventions,222 and the ICC Statute adopted in 1998 prohibited the transfer of such population “directly or indirectly.”223

But even putting Article 49(6) of the GCIV aside, the Hague Regulations also restrict the authority of the occupant in this context: it is not clear from where the occupant derives the authority to undertake a massive settlement project such as that which the Israeli government planned and nurtured,224 or to modify the local laws to allow purchase of land by Israelis.225 This cannot be regarded within the ambit of “ensuring public order and civil life” in the sense of Article 43 of the Hague Regulations—in fact, this is just the opposite!— and the project cannot be regarded as a military necessity Moreover, this policy runs against the obligation to conduct negotiations in good faith to end the occupation (infra).

Aside from this debate, it can be said that the cumulative effect of the methods described above regarding the application of Israeli law, administration, and jurisdiction to the settlements and their residents was in fact the extension of Israeli jurisdiction, which was in many respects similar to the extension of Israeli rule to East Jerusalem and the Golan Heights.226 The same criticism of these two explicit acts can be directed toward the much more roundabout process of de facto annexation of the settlements. Indeed, only if one subscribes to the opinion that Israel had a better title over the territories and therefore was entitled to assume sovereignty over them, and the Palestinians had no right to a state based on their right to them, would one be able to argue that this practice was legal.227 However, Israel refrained from asserting sovereignty, and relied instead on the occupant’s powers under the law of occupation. It seems that the law of occupation does not sanction such acts.

8.5.2  The economic union

The Israeli Supreme Court justified the establishment of the economic union as being in line with—indeed, required by—Article 43 of the Hague Regulations.228 In view of the relative strength of the different economies, the geographic proximity, and, in the case of Gaza, the lack of trade with Egypt, economic convergence was inevitable. Maintaining an economic, pre-1967 “Green Line” would have meant stagnation, unemployment, and social unrest (p. 242) in the territories. The creation of a single market, on the other hand, boosted the standard of living in the territories.229 Theoretically, two options were possible at the beginning of the occupation, in view of the poor condition of the occupied economies: their integration with the Israeli economy or their massive development as self-sustaining economies. The first option was more realistic, as it relied on the existing infrastructure of the much larger and more developed Israeli economy. That option was also preferred by the military administration because it was deemed to be in line with Israeli economic interests. The first intifada (1987–92) and the resulting attempt to restrict the flow of workers from the territories into Israel seem to have led to a reappraisal of this policy, and measures were taken to encourage private initiatives to develop the economic infrastructure of the territories.230

While economic integration was conducive to maintaining “public order and civil life” in the territories, it was also beneficial to the Israeli economy. The territories were an unfailing source of cheap labor, and a sizable market for consumer goods.231 Whenever Israeli interests could have been jeopardized by the free flow of goods, services, and people, measures were taken to counter the risks. Thus the flow of workers to Israel was restricted in time (no overnight stay), and their wages reduced to ensure equality with the net wages of Israeli workers.232 The flow of fresh produce from the territories into Israel and abroad, which could at times compete with Israeli produce, was controlled by granting individual permits.233 Transactions between Israelis and residents of the territories were governed by Israeli law and adjudicated in Israeli courts.

The unification of the economies was in fact an economic annexation. Although the territories retained their separate legal status, and were governed by military administrations based on international law and independent of Israeli law, the regulation of the economies in the territories was directed by the Israeli legislature and government. Given the necessity of maintaining economic union, the military authorities had to follow closely the changes introduced in the Israeli economy and adopt them in the territories.

The decision of the Israeli Supreme Court regarding the adoption of VAT in the territories234 may serve as confirmation that economic unification came to mean economic annexation. The imposition of VAT in the territories coincided with a similar one introduced in Israel. The military authorities claimed that the new tax was necessary to protect the local residents from a situation in which VAT was imposed only in Israel. In such a case, they reasoned, Israel would have had to resurrect the economic borders and impose restrictions on the free flow of goods (p. 243) and services. This alternative, so they claimed, would have worked to the detriment first and foremost of the local population. In other words, the main reason for the tax was not to increase revenues, but to retain the interdependency of the economies.235 The Israeli Supreme Court, holding that under international law occupants could introduce new taxes, upheld the new tax, affirming the authorities’ concern:

As a result [of the economic integration], the military government at its outset took action to equalize rates of indirect taxes.…Having seen that a Value Added Tax must be introduced in Israel, the wheel could not be turned back without affecting the proper fulfillment of the duties deriving from Article 43.236

In other words, the decision to impose VAT in the territories was in reaction to the introduction of VAT in Israel, which was a “must.” This reasoning authorized the military authorities, indeed, obliged them, to follow the changes that took effect within Israel and implement them in the territories so that the Israeli government would not resurrect the pre-1967 borders. Given the necessity of maintaining integration, the military authorities were left without any real discretion regarding economic policies. Rather, they served as proxies for the implementation of economic policies decided upon by the Israeli body-politic. The fiction of an independent military administration immunized decisions of the Israeli government from their scrutiny under international law by the Court, and at the same time provided justification for the military “reactions.” The fiction attempted to conceal the fact that the interests of the local population had become secondary to the occupant’s interests and policies, which were taken for granted. This concept of occupation permitted the democratic processes within Israel to continue without sharing political power with the indigenous population of the territories.

It is arguable that the law of occupation would object to such an outcome: if economic integration is necessary to maintain “public order and civil life,” then the decisions taken by the national institutions of the occupant concerning economic policies that also affect the occupied territory should also be subject to the requirements of the law of occupation. In other words, the government must foresee the eventual adoption of its policies in the occupied territory, and therefore is required under the law of occupation to give ample consideration at the outset to the interests of that area’s inhabitants. However, it is highly unlikely that a legislature and government would recognize a duty to balance the interests of their national economy with those of the occupied territory, whether in economic matters or in any other matter. Realistically there is little hope that the law of occupation will loom large among the considerations influencing policy making in such an integrated economy. It seems, therefore, that removal of trade barriers between the occupied and occupant regions and further economic integration would sooner or later evolve into an actual economic annexation.237 Moreover, this economic integration is a (p. 244) measure that is likely to create unwarranted incentives for the occupant to carry on with the occupation. Thus, economic integration is not necessarily a proper avenue for the occupant to take. For the occupied community, there is much to be lost from such an embrace. It is therefore suggested that measures aimed at economic integration are justified only as long as the economic situation in the occupied region is severe and separation is not likely to improve the situation. Thus, it would probably be illegal to integrate an affluent occupied region into an occupant’s impoverished economy. If upon occupation, the occupied region suffers economic hardship, then integration might be a proper step. But even if integration is justified, this does not mean that it continues to be justified for the entire period of occupation; ideally, the justification for economic integration should be re-evaluated from time to time, in light of new data on the current strength of the occupied economy and its potential to sustain itself. The problem is that the occupant’s policies may easily shape the predicament of the occupied economy, according to its interests. This is especially true of long-term occupations, an issue dealt with more closely in the following pages.

8.5.3  Long-term occupations and the law of occupation

The protraction of the Israeli occupation provides an opportunity to discuss some general issues concerning long-term occupations. The Hague Regulations did not envision that a peace treaty between the rival powers would take long to reach. In the nineteenth century, military defeats were soon followed by peace treaties and border modifications, and thus occupations were short-lived. The GCIV did envision the possibility of protracted occupation, providing in Article 6, inter alia, that “[i]n the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations,” except for specific enumerated provisions, which were to continue in force for the duration of the occupation. Most of the Articles dealing with occupation, including the important Article 64, which deals with the occupant’s prescriptive powers, are enumerated as exceptions that are retained as long as the occupation lasts. Therefore the two major instruments regarding the law of occupation do not provide meaningful guidelines for lawful deviations from the regular rules of occupation in cases of protracted occupations.

8.5.4  Is there an obligation to end the occupation?

Does the occupant have the right to retain control over the occupied territory until its conditions for a peaceful arrangement are met? Does it have a duty to relinquish control under certain circumstances? Ultimately, the question is, upon whom does the burden of breaking political stalemate lie when negotiations for peace fail?(p. 245)

The basic principles of traditional occupation law call for the occupant to assume control over the affairs of the occupied territory for the duration of the occupation. Neither the Hague Regulations nor the GCIV limits the duration of the occupation or requires the occupant to restore the territories to the sovereign before a peace treaty is signed. As Oppenheim succinctly described this principle,

If a belligerent succeeds in occupying the whole, or even a part, of enemy territory, he has realized a very important aim of warfare. He can now not only use the resources of the enemy country for military purposes, but can also keep it for the time being as a pledge of his military success, and thereby impress upon the enemy the necessity of submitting to terms of peace.238

Some of the UN resolutions regarding the Israeli occupation can be seen as an effort to revise that position. At first, Security Council Resolution 242 (1967) was widely accepted as being in line with the proposition mentioned supra, as it linked the withdrawal from occupied territories with the establishment of a just and lasting peace.239 However, later resolutions of the General Assembly voiced another message. In large part because of the Israeli occupation, a 1973 General Assembly resolution “resolutely supported” the efforts of peoples under “foreign occupation in their struggle to regain control over their natural resources.”240 This time the message was that occupation in itself is unlawful, or at the very least, that the occupant is not entitled to delay a peaceful solution of the conflict.241

It is suggested that an occupation regime that refuses earnestly to contribute to efforts to reach a peaceful solution should be considered illegal. Indeed, the failure to do so should be considered outright annexation. The occupant has a duty under international law to conduct negotiations in good faith for a peaceful solution. It would seem that an occupant which proposes unreasonable conditions, or otherwise obstructs negotiations for peace for the purpose of retaining control over the occupied territory, could be considered a violator of international law. There is a fine but definite line between the permitted use of the occupation as a bargaining chip, and the illegal use of the occupied population as hostages.242 The problem is to determine when an inflexible occupant crosses that fine line of legal bargaining. It is suggested that no such claim of illegality would be proper as long as the occupant’s conditions (p. 246) for peaceful settlement of the conflict are motivated by reasonable security interests. This suggests that any measure aimed at creating new hurdles to the negotiations by changing the status quo in the occupied areas (for example, by enabling the migration of its own citizens into the occupied territory) is also tainted with illegality.

8.5.5  Changes in the occupant’s powers during long-term occupations

Does the mere fact that the occupation lingers on confer upon the occupant more powers than in a short-term occupation, or is it, rather, the other way round? The answer given by the Israeli Supreme Court accords with the first proposition. Four years into the occupation, the Court held that as the occupation period gets longer, the occupant’s powers to prescribe widen:

Life does not stand still, and no administration, whether an occupation administration or another, can fulfil its duties with respect to the population if it refrains from legislating and from adapting the legal situation to the exigencies of modern times.243

A decision from 1983 went even further: not only is the occupant entitled and obliged to react to changing conditions; it is empowered to undertake major investments and long-term planning that would anticipate the future demands of the local community.244 In contrast to this view, Adam Roberts maintains that “in a prolonged occupation, as in a pacific one, the rights of the occupants are vastly curtailed.”245

Both approaches are based on the assumption that in a prolonged occupation the maintenance of the status quo ante could prove insupportable to the local population. Indeed, it would be wrong, and even at times illegal, to freeze the legal situation and prevent adaptations when an occupation is extended.246 But this does not mean that it is the occupant which is entitled to assume the duty to update the law. In prolonged occupations conditions change quite fundamentally, partly because of the changing circumstances, partly due to the occupant’s changing needs, and partly due to new preferences of the local population. To recognize the occupant’s widening powers to react to these changes or even to initiate new ones would effectively grant the occupant almost all the powers a modern sovereign government would wield. In modern times, the occupant’s interests encompass not only the safety of its troops but also a wide variety of economic concerns, and not only temporary benefits but also long-term advantages. Politicians and soldiers are not saints, and one must expect the occupant to be prejudiced toward its own country at the expense of the indigenous community. Therefore, instead of allowing the occupant to extend its powers as it deems fit to accommodate what it views (p. 247) as new circumstances, the aim of the law of occupation should be to encourage the participation of the indigenous community and of the ousted government, all subject to the occupant’s safety concerns.

Indeed, the law of occupation allows for indigenous input in the affairs of the occupied territory; in fact, the law mandates it. The prevailing scholarly opinion is that the ousted government, if it continues to function, is entitled to have its newly-promulgated laws respected by the occupant as long as they do not impinge on the latter’s powers and duties.247 Thus, changes in the legal system introduced by the ousted government to meet novel circumstances in the unoccupied area and which do not affect the occupant’s security concerns would, according to this theory, be regarded as potentially applicable also in the occupied territory. An argument can be made that the occupant has to justify any omission to incorporate, in the occupied territory, new laws promulgated in the unoccupied area, or any deviation from those laws. This solution may be plausible in theory, but it has never been applied. No occupant has ever allowed the prescriptions of the ousted government to take effect in the territory under its control. Upon assuming control, occupants would seal the legal system from outside intervention.248 Therefore it is important to emphasize that by law, in severing legal ties between the occupied area and the indigenous government, the occupant is not relieved, at the very least, from the duty to consult the latter’s prescriptions. Whenever there is a need to update the existing law, the occupant must weigh whether a solution introduced by the ousted government in the unoccupied part is not also suitable for the occupied area; whenever the ousted government introduces changes, the occupant should inquire whether a similar change is warranted in the area under its control.249 Any deviation from the enactments of the ousted government must be justified under the law of occupation.

This suggestion would not be helpful if the ousted government failed to undertake the necessary modifications in the area under its control, or if for any reason its prescriptions were not suitable for the occupied area. In such a situation it is suggested that the occupant’s expanded powers be recognized, but at the same time that it be recognized that the occupant is required to delegate powers as far as possible to locally elected officials, such as municipalities or economic associations, and consult with them on initiatives prior to their adoption and their implementation. The occupant could also set up administrative agencies that would include local stakeholders which would provide them with a voice and provide the occupant with relevant information. In principle, the standard practice of occupants should involve the occupied population as much as possible in the administration especially as the occupation lingers on. The long-term occupant is required to provide for and pay ample attention to the input of the occupied community regarding the management of the latter’s country. As Emma Playfair suggests,(p. 248)

If the occupier is serious about wishing to serve the welfare of the occupied population, mechanisms can be established for consultation with the population, even without instituting full elections.…Without such consultation the determination of what is in the best interest of the population is, at best, guess-work.250

This suggestion is pertinent for an otherwise autocratic regime, where the occupant combines legislative and executive functions. It is equally imperative that public participation is not restricted but is open to all potentially affected stakeholders who are able to receive and impart information from an accountable occupant.

Footnotes:

1  For background see Benjamin Rubin, Israel, Occupied Territories, in Max Planck Encyclopedia of Public International Law, online edition (2009) (http://www.mpepil.com), paras 43–53.

2  Section 1 of the Golan Heights Law, 36 L.S.I. (Laws of the State of Israel) 7 (5742–1981/2).

3  See HCJ 205/82 Kanj Abu Salakh v Minister of Interior, 37(2) PD 718 (1983).

4  Security Council Resolution 497 (1981).

5  General Assembly Resolutions 36/226A (1981); 39/146A (1984).

6  Israel-Egypt Treaty of Peace, 1979, 18 ILM 362 (1979). Withdrawal from a tiny area called Taba was completed in 1989 following an Arbitral Award.

7  On the legal status of that area until 1967, see Carol Farhi, On the Legal Status of the Gaza Strip, in 1 Military Government in the Territories Administered by Israel 1967–1980—The Legal Aspects 61 (Meir Shamgar ed., 1982).

8  The Arab League censured Jordan for this act, and decided to treat Jordan’s status in the West Bank (including East Jerusalem) as that of a “trustee,” pending a future settlement. On this annexation and the reactions thereto see Yehuda Z. Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 Isr. L. Rev. 279, 289–93 (1968); Allan Gerson, Israel, the West Bank and International Law 77–8 (1977); Peter Malanczuk, Israel: Status, Territory and Occupied Territories, 12 EPIL 149, 171 (1990).

9  Law and Administration Order [no. 1], 5727–1967. On the legal status of Jerusalem, see Ruth Lapidoth, Jerusalem, in Max Planck Encyclopedia of Public International Law, online edition (http://www.mpepil.com) (2006).

10  “The term ‘annexation’ is out of place,” wrote the Israeli minister of foreign affairs to the Secretary-General of the United Nations. “The measures adopted relate to the integration of Jerusalem in the administrative and municipal spheres, and furnish legal basis for protection of the Holy Places.” July 10, 1967, UN Doc. S/8052 (1967).

11  Article 1, passed on July 30, 1980 and published in Sefer Ha-Chukkim No. 980, p. 186.

12  In the Israeli-Palestinian Declaration of Principles of 1993, see infra note 42.

42  Israel signed the Declaration with the “PLO team…representing the Palestinian people…” (from the preamble to the Declaration).

13  Articles 5 and 6, passed on December 7, 2000, and published in Sefer Ha-Chukkim No. 1760, p. 28.

14  Justice Cohen’s opinion in HCJ 283/69 Ruweidi v Military Court in the Hebron District, 24(2) PD 419, 423 (1970), approved in Kanj Abu Salakh, supra note 3. But cf Justice Kahan’s opinion in Ruweidi, holding the 1967 declaration as affecting annexation.

15  HCJ 282/88 Awad v Prime Minister et al., 42(2) PD 424, 429 (per Justice Barak).

16  See Security Council Resolutions 252 (1967); 267 (1969); 298 (1971); 446 (1979); 445 (1980); General Assembly Resolutions 2253 (ES-V) (1967); 2254 (ES-V) (1967); 31/106A (1976); 33/113 (1978).

17  Security Council Resolution 478 (1980). See also General Assembly Resolutions 36/120E (1981); 37/123C (1982); 39/146C (1984).

18  For the opinion that Israel has the better title over Palestine and the right to declare its sovereignty over East Jerusalem and other areas in the West Bank and Gaza, see, eg, Blum, supra note 8; Elihu Lauterpacht, Jerusalem and the Holy Places (1968); Stephen M. Schwebel, What Weight to Conquest?, 64 AJIL 344 (1970). For the latest restatement of this claim, see Eugene V. Rostow, Letter to the Editor, 84 AJIL 717 (1990). These arguments have been widely contested. See, eg, Yoram Dinstein, Zion Shall Be Redeemed by International Law, 27 Hapraklit 5 (1971) (in Hebrew); Esther R. Cohen, Human Rights in the Israeli-Occupied Territories 1967–1982 43 (1985).

19  Last sentence of the Article (the text appears supra in Chapter 3, text accompanying note 88).

88  See infra Chapter 8.

20  Martin B. Carroll, The Israeli Demolition of Palestinian Houses in the Occupied Territories: An Analysis of Its Legality in International Law, 11 Michigan J. Int’l L. 1195, 1201–2 (1990) (“The humanitarian protections provided by the drafters of the Fourth Convention cannot be allowed to be negated by a legal dispute involving the sovereign status of the Occupied Territories”).

21  Benjamin Rubin, supra note 1, details how this view came about. While initially an order issued on August 11, 1967, by the Military Commander for the West Bank included a provision to the effect that “the Military Courts and the Military Courts Administration shall observe the provisions of the [GCIV] in any matter connected with judicial proceedings. In any contradiction between this Order and the said Convention, the provisions of the Convention shall prevail,” an amendment published on December 29, 1967 repealed that provision. The author of both the provision and its repeal was the same person—Meir Shamgar who was the Military Advocate General and later became the (state) Attorney General. He may have been influenced by Yehuda Blum’s thesis expounded in supra note 8. See also Nissim Bar-Yaacov, The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip, 24 Isr. L. Rev. 485 (1990).

22  Meir Shamgar, The Observance of International Law in the Administered Territories, 1 IYHR 262 (1971). Israel never officially enumerated the provisions it regarded as “humanitarian.” Shamgar did not refer at that point to the applicability of the 1907 Hague Regulations. Nine years later, in Legal Concepts and Problems of the Israeli Military Government—The Initial Stage, in Shamgar, supra note 7, at 13, 48, he mentioned that the Hague Regulations and customary law were also observed only on a de facto basis. As Bar-Yaacov points out, a reservation as to the applicability of the Hague Regulations, similar to that made with respect to the GCIV made by emphasizing the title of Section III of the Hague Regulations, which mentions the territory “of the Hostile State,” the reference in Art. 43 to the “legitimate power,” and other provisions: Bar-Yaacov, supra note 21, 492–3. However, in contrast to the case of the GCIV, such an explicit argument was never officially offered.

23  See Meir Shamgar, supra note 22, at 34. On the internal Israeli politics concerning the status of the territories, see Amnon Rubinstein, The Changing Status of the “Territories” (West Bank and Gaza): From Escrow to Legal Mongrel, 8 Tel-Aviv U. Studies in Law 59 (1988).

24  See, eg,Yoram Dinstein, The International Law of Belligerent Occupation and Human Rights, 8 IYHR 104, 107 (1978) (the Israeli government’s position “is based on dubious legal grounds, considering that the Fourth Convention does not make its applicability conditional on recognition of titles”). Two recent critical discussions of the Israeli claim and the reactions thereto appear in Bar-Yaacov, supra note 21, at 485–94, and Adam Roberts, Prolonged Military Occupation: The Israeli Occupied Territories since 1967, 84 AJIL 44, 62–6 (1990).

25  According to the first paragraph, the Convention “shall apply to all cases of declared war or of any other armed conflict.…”

26  Gerson, supra note 8, at 81–2 (Gerson describes Israel’s status as that of “trustee-occupant”).

27  Amichai Cohen argued that this legal outcome served the IDF’s interest of retaining its authority in the occupied territories (as opposed to direct governmental control) without the constraints of the GCIV toward the population: Amichai Cohen, Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories, 38 Isr. L. Rev. 24 (2005).

28  For the Court’s refusal to adjudicate this issue, see HCJ 606/78 Ayyub v Minister of Defence, 33(2) PD 113, 127 (1979) (the “Beith-El case”), translated in Military Government, supra note 7, at 371; HCJ 390/79 Douykat v Government of Israel, 34(1) PD 1, 13 (1979) (the “Elon-Moreh case”), translated in Military Government, supra note 7, at 404. According to some Justices’ comments, had the government raised its claim in court, the court would have ruled the issue not justiciable. Douykat, id. at 29; Ruweidi, supra note 14.

29  See HCJ 393/82 Jama’it Askan v Commander of the IDF in Judea and Samaria, 37(4) PD 785, 792 (1983) (“Judea and Samaria [the West Bank] are administered by Israel by way of ‘belligerent occupation’…The Military Commander’s powers and duties stem from the norms of public international law, whose concern is belligerent occupation”). The Court reserved the question of the applicability of the GCIV. Id. at 793.

30  HCJ 785/87 Al Affo v Commander of the IDF Forces in the West Bank, 42(2) PD 4, 49 (1988), 29 ILM 139 (1990), translation available at http://elyon1.court.gov.il/files_eng/87/850/007/z01/87007850.z01.pdf. The 1978 Camp David accords provided for negotiations regarding the future status of the Gaza Strip as well as the West Bank.

31  Id. at 49–50 (“As long as the military power effectively controls an area, the laws of war will apply to its actions…despite the signature of the Peace Treaty, as long as the military administration did not leave the area of the Gaza region, and as long as the relevant parties have not agreed otherwise, the respondent continues to hold the area under belligerent occupation, and is subject to the customary international laws applicable in times of war”).

32  But cf Yoram Dinstein, The Israeli Supreme Court and the Law of Belligerent Occupation: Reunification of Families, 18 IYHR 173, 174 (1988); id., Deportations from Administered Territories, 13 Tel Aviv U. L. Rev. 403, 415 (1988) (in Hebrew), who held that because military occupation is contingent on a continuing state of war, after the Peace Treaty with Egypt, Israel should have ended the military administration, and retained the Israeli civil administration.

33  In a previous decision (January 11, 1987), Justice Shamgar reiterated with approval (although in a dictum) the government’s interpretation of Art. 2 of the GCIV: HCJ 13/86 Shaheen et al. v Commander of the IDF in the Judea and Samaria Region et al., 41 PD 197, 207–8 (1987).

34  HCJ 7015/02 Ajuri et al. v IDF Commander in the West Bank et al., Israel High Court of Justice (2002), translation available at http://elyon1.court.gov.il/files_eng/02/150/070/a15/02070150.a15.pdf.

35  HCJ 2056/04 Beit Sourik Village Council v The Government of Israel, 58(5) PD 807 (2004) (invoking Art. 53 of the GCIV as the basis for expropriating private land to build the barrier).

36  For a thorough analysis of the jurisprudence of the Israeli Supreme Court concerning the application of the law of occupation to the West Bank and Gaza until the late 1990s see David Kretzmer, the Occupation of Justice (2002). On the applicability of the GCIV see also Yoram Dinstein, the International Law of Belligerent Occupation 20–30 (2009).

37  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep. 136 (July 9, 2004), at para. 78.

38  Id., para. 95.

39  The preamble to the DOP asserts that the two sides “agree that it is the time to put an end to decades of confrontation and conflict, recognize their mutual legitimate and political rights, and strive to live in peaceful coexistence and mutual dignity and security.”

40  “The PLO recognizes the right of the State of Israel to exist in peace and security.”

41  “[T]he government of Israel has decided to recognize the PLO as the representative of the Palestinian people…”

43  Agreement on the Preparatory Transfer of Powers and Responsibilities, Done in Erez, August 29, 1994. The powers are in the areas of education, culture, health, social welfare, tourism, direct taxation, and value-added tax on local production. The PA replaces the authorized Palestinians referred to in Art. VI of the DOP (Art. II.2).

46  Raja Shehadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories 52 (1997).

47  Id.

48  Eyal Benvenisti, Responsibility for the Protection of Human Rights Under the Interim Israeli-Palestinian Agreements, 28 Isr. L. Rev. 297, 312 (1994).

49  Marco Sassòli, Outline of de Jure and de Facto Applicability of the Law of Occupation to United Nations-Mandated Forces, 33, 34 in Report of Expert Meeting On Multinational Operations, Geneva, December 11–12, 2003 (Alexandre Faite & Jérémie Grenier eds, 2004).

50  For the legal status of the territories at various interim stages see Grant T. Harris, The Political Realities of Occupation, 41 Isr. L. Rev. 87 (2008); Omar M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine During the Interim Period, 26 Denv. J. Int’l L. & Pol’y 27 (1997); Ariel Zemach, Taking War Seriously: Applying the Law of War to Hostilities Within an Occupied Territory, 38 Geo. Wash. Int’l L. Rev. 645 (2006); Ardi Imseis, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, 99 AJIL 102 (2005); Yoram Dinstein, The International Legal Status of the West Bank and the Gaza Strip—1998, 28 Isr. Y.B. Hum. Rts 37 (1999); Peter Malanczuk, Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law, 7 EJIL 485 (1996); Eyal Benvenisti, The Status of the Palestinian Authority, in The Arab-Israeli Accords: Legal Perspectives 47 (Eugene Cotran & Chibli Mallat eds, 1996).

51  Wall Advisory Opinion, para. 77.

52  On the ability to regain control of territory as a condition for occupation see Chapter 3, text accompanying notes 54–7.

54  Oppenheim, supra note 4, at 170.

53  CrimA 6659/06 Anonymous v The State of Israel (judgment of June 11, 2008) at para. 11. See also HC 9132/07, Ahmad v Prime Minister, para. 12 (2008), translation available at http://elyon1.court.gov.il/Files_ENG/07/320/091/n25/07091320.n25.pdf; HCJ 9132/07. See also Jaber Al-Bassiouni Ahmed v Prime Minister et al., translation available at http://elyon1.court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf and Chapter 3, text accompanying notes 91–4. On the question whether Gaza is still occupied after the disengagement see Mustafa Mari, The Israeli Disengagement from the Gaza Strip: An End of the Occupation?, Y.B, Int’l Hum. L. 8 (2005) 359 (yes); Yuval Shany, Faraway So Close: The Legal Status of Gaza after Israel’s Disengagement, Y.B. Int’l Hum. L. 8 (2005) 359 (no).

91  Supra note 31 at p 114. See also id., at p. 78 (the law of occupation is an instrument to regulate the relations between foreign forces and the local population). See also Roberts, supra note 25, at 300 (a marker of occupation is when “there is a difference of nationality and interest between the inhabitants on the one hand and the forces intervening and exercising power over them on the other”).

54  On the early stages of the occupation, see Shamgar, supra note 22. On the legal system in the West Bank during the first decade, see Moshe Drori, The Legal System in Judea and Samaria: A Review of the Previous Decade with a Glance at the future, 8 IYHR 144 (1978).

55  HCJ 61/80 Ha’etzni v State of Israel (Minister of Defence), 34(3) PD 595 (1980).

56  See Order Concerning Courts (Ramat Hagolan [the Golan Heights]) (No. 273) (1970), reproduced and translated in Military Government, supra note 7, appendix C, no. 3, at 453. Similar situations, with similar solutions, occurred in British-occupied Cyrenaica, see supra Chapter 6, and British-occupied Iraq after World War I, see Gertrude L. Bell, Review of the Civil Administration in Mesopotamia 1920, Cmd 1061.

57  The Order Concerning Interpretation (the West Bank) (no. 130), 5727–1967, para. 8, provides that “security enactments supersede any law [ie, any law effective in the region on the eve of the occupation (para. 1(8))] even if the former does not explicitly nullify the latter.” Security enactments may modify conflicting local laws even implicitly; HCJ 174/85 Khassan v Commander of the IDF in Judea and Samaria, 39(3) PD 245 (1985). In the discussion that follows I shall refer to orders that deal primarily with the situation in the West Bank. The situation in the Gaza Strip is essentially similar, and important variances from the situation concerning the West Bank will be indicated.

58  Order Concerning the Establishment of the Civil Administration (Judea and Samaria) (no. 947), 5742–1981, para. 4.

59  Some of the rules translated into English were reproduced in Shamgar, supra note 22, at 27–31.

60  See rule no. 3 in id. at 30.

61  Paragraph 6 of the proclamation.

62  A special order controls the possibility of different versions in the two modes of publication: Order Concerning the Compilation of Proclamations (The West Bank) (no. Ill), 5727–1967. Not all the enactments are published in this way. Some enactments, including those concerning the Jewish settlements, which will be described infra, do not appear in the pamphlets. In some other cases, maps that had formed an integral part of certain orders were not attached.

63  On the system of administration in West Bank see Mona Rishmawi, The Administration of the West Bank, in International Law and the Administration of the Occupied Territories 267 (Emma Playfair ed., 1992); Joel Singer, The Establishment of a Civil Administration in the Areas Administered by Israel, 12. Isr. Y.B. Hum. Rts 259 (1982).

64  Neve Gordon, Israel’s Occupation 100–6 (2008); Emile F. Sahliyeh, In Search of Leadership: West Bank Politics Since 1967, 64 (1988).

65  See Rishmawi, supra note 63, at 290–3.

66  See Amir Paz-Fuchs, Paradoxes under Israeli Occupation—Inclusive Exclusion and Illegal Legality, 13 Mishpat Umimshal—Law and Government in Israel 7, 37–8 (2010, in Hebrew).

67  Sari Hanafi, Spacio-cide: Colonial Politics, Invisibility and Rezoning in Palestinian Territory, 2 Contemporary Arab Affairs, 106, 115, 119 (2009) (reporting on the use of the permit system to elicit cooperation, and on the practice of building without permits even at the risk of demolition).

68  Military Order 58, Concerning Abandoned Private Property, July 23, 1967 and Military Order 59, Concerning Government Property, July 31, 1967. See Eyal Benvenisti & Eyal Zamir, Private Claims for Property Rights in the Future Israeli-Palestinian Settlement, 89 AJIL 295, 307–8 (1995).

69  Gamal Abouali, Natural Resources under Occupation: The Status of Palestinian Water under International Law, 10 Pace Int’l L. Rev. 411 (1998); David Kahan, Agriculture and Water Resources in the West Bank and Gaza (1967–1987) 20–2 (1987).

70  Eyal Benvenisti & Haim Gvirtzman, Harnessing International Law to Determine Israeli-Palestinian Water Rights: The Mountain Aquifer, 33 Nat. Res. J. 543 (1993); Sharif S. Elmusa, Dividing Common Water Resources According to International Water Law: The Case of the Palestinian-Israeli Waters, 35 Nat. Res. J. 223, 225 (1995); Jamal L. El-Hindi, The West Bank Aquifer and Conventions Regarding the Laws of Belligerent Occupation, 11 Mich. J. Int’l L. 1400 (1990).

71  Interim Agreement, supra note 44, Annex 3, app. 1, art. 40, sched. 11.

72  On the operation of these courts see Lisa Hajjar, Courting Conflict: the Israeli Military Court System in the West Bank and Gaza (2005); Sharon Weill, The judicial arm of the occupation—the Israeli military courts in the occupied territories, 89 IRRC 395 (2007).

73  There may also be adjudications by a single judge (an officer with legal training). The latter has the same jurisdiction that the panel has, but the punishment is limited to five years’ maximum imprisonment (para. 50).

74  HCJ 87/85 Arjub et al. v Commander of IDF Forces in Judea and Samaria et al., 42(1) PD 353 (1988).

75  The petition is submitted to the military commander (if the judgment was rendered by a panel) or the area commander (if a single judge gave the decision). These officials may pardon the petitioner, mitigate his or her sentence, order a new trial, or, since 1988, order a retrial (the discretion to order a retrial is not limited).

76  The “law” is defined in the Order Concerning Interpretation as “an enactment of a legislative body which was effective in the area on the eve of [June 7, 1967], including every rule issued pursuant to such an enactment, and excluding security enactments.”

77  Paragraph 7A, February 3, 1988.

78  In the past, some panels of the military courts did hear arguments that military acts were contrary to international law. On the other hand, other panels were of the opinion that they did not have jurisdiction to entertain such claims. See Hillel Sommer, Eppur si applica—The Geneva Convention (TV) and the Israeli Law, 11 Tel-Aviv U. L. Rev. 263, 269–70 (1986) (in Hebrew); Moshe Drori, the Legislation in the Area of Judea and Samaria 66–72 (1975). Since there was no military court of appeal, the question remained open until finally resolved by legislative fiat. But see Chapter 12 at note 46 (recently a military judge asserted authority to review the compatibility of military orders with the law of occupation).

46  Appeals Board 5/06 Schwartz v IDF Commander in the Area, Judgment of September 17, 2006, at 11–12. While petitioners could apply to the Israeli High Court of Justice, the Board reasoned, the Board was accessible free of charge, and accessible also to Palestinian lawyers who had no license to practice law in Israel.

79  Order Concerning Abandoned Property (Private Property) (Judea and Samaria) (no. 58), 5727–1967.

80  Order Concerning Appeals Committees (the West Bank Region) (no. 172), 5728–1967.

81  In 1986 the committee published its rules of procedure: Rules Concerning Procedure in Appeals Committees (Judea and Samaria), 5746–1986.

82  Id., para. 8(c).

83  Id., para. 9A, November 1987.

84  See Order Concerning Supervision over Building (Provisional Rules) (Judea and Samaria) (no. 1153), 5746–1985. Another special appeals committee hears claims against the cancellation, suspension, or nonrenewal of driver or vehicle licenses. Order Concerning the Transportation on Roads (the West Bank) (no. 56), 5727–1967, para. 8.

85  Order Concerning Appeals Committees, supra note 80, at para. 7.

86  Id., para. 2.

87  HCJ 484/85 Shmalawi v Appeals Committee, 39(4) PD 598 (1985); HCJ 285/81 Al Nazer v Commander of Judea and Samaria, 36(1) PD 701, 707 (1982).

88  The Appeals Claims Committee handles claims for damages done by the military: Order Concerning Claims (Judea and Samaria) (no. 271) (1968).

89  This measure follows similar acts by the British in Cyrenaica, see supra Chapter 6 at notes 77–8, and by the Allies in Venezia Giulia in northeastern Italy, see supra Chapter 6 at note 126.

77  Rennell, supra note 53, at 341. Before that there was one appeals court for all of Libya, situated in Tripoli.

126  The AMG also suspended the right of appeal to the Italian Court of Cassation: Section 2 of General Order no. 6, Civil Courts for the Occupied Territories, of July 12, 1945, 1 AMG Gazette, no. 1, at 32.

90  Jama’it Askan, supra note 29, at 809–10 (“Now there is no doubt that…this court has the right to review [administrative acts in the territories]. It stems from the fact that the military commander and his subordinates are public servants, who perform public duties according to law.…Every Israeli soldier carries with him in his knapsack the rules of customary international law and the principles of Israeli administrative law”). See also HCJ 69/81 Abu-Aita et al. v Commander of Judea and Samaria et al., 37(2) PD 197, 260 (1983), translated in 7 Selected Judgments of the Supreme Court of Israel 1, 30 (1983–87), available at http://elyon1.court.gov.il/files_eng/81/690/000/Z01/81000690.z01.pdf. The Court also asserted its jurisdiction with regard to activities in Lebanon during the war there. HCJ 574/82 Al-Nawar v Minister of Defence, 39(3) PD 449, 461 (1985).

91  Abu-Aita, supra note 90, at 230–1, Jama’it Askan, supra note 29, at 809–10.

92  Ayyub, supra note 28, at 128; Douykat, supra note 28, at 29; and Al Affo, supra note 30, at 67. However, these rulings notwithstanding, the Court has continued to examine acts of the authorities in light of the convention in long dicta. See, eg, in the case of deportations: HCJ 320/80 Kawassme v Minister of Defence, 35(1) PD 617, 626–7 (1980), and Al Affo, supra note 30. Two Justices have suggested treating the Geneva Convention as applicable to the extent that the government officially views it as such, ie, as internal self-imposed rules of conduct, or as a unilateral pledge that is binding on the executive until revoked by it. Jama’it Askan, supra note 29, at 794 (Barak J); Al Affo, supra note 30, at 78 (Bach J) (under Israeli administrative law, officials must give reasons for deviating from internal self-imposed rules of conduct on the incorporation of international law, and especially the GCIV, into Israeli law, see David Kretzmer, supra note 36, 31–42; Ruth Lapidoth, International Law within the Israeli Legal System, 24 Isr. L. Rev. 451 (1990); Bar-Yaacov, supra note 21.

93  See, eg, HCJ 2056/04 Beit Sourik Village Council v The Government of Israel (2004), http://elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf; HCJ 3799/02, Adalah—The Legal Center for Arab Minority Rights in Israel v GOC Central Command, IDF 60(3) PD 67 (2005), available at http://elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.pdf.

94  Another way to challenge administrative measures in the territories, under specific security enactments, is through an appeal to the Appeals Committee. See supra text accompanying notes 44–8.

95  See, eg, R (on the application of Al Jedda) v Secretary of State for Defence [2007] UKHL 58. The US courts have so far refused to adjudicate petitions concerning US activities in occupied territories: Johnson v Eisentrager, 339 U.S. 763 (1950) (detention of Germans in Germany under US post-World War II occupation); Al Maqaleh v Robert M. Gates, 605 F.3d 84 (DC Cir., 2010) (concerning detention by US forces at Bagram Air Force Base in Afghanistan). One rare exception which was not followed in subsequent occupations was a US Supreme Court judgment in 1913 against the US administration of Puerto Rico, Ochoa v Hernandez y Morales, 230 U.S. 139 (1913).

96  This reason was put forward by Shamgar, supra note 22, at 42.

97  See Moshe Negbi, Justice Under Occupation 16–17 (1981) (in Hebrew). The author interviewed Justice Shamgar and others for the purpose of his book.

98  Id. at 21. The author details the recollections of (by then retired) Justice Vitkon.

99  See HCJ 619/78 Al-Tali’ah v Minister of Defence, 33(3) PD 505, 512–13 (1979); Jama’it Askan, supra note 29, at 799–800.

100  Ronen Shamir, “Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice, 24 Law and Society Rev. 781 (1990); id., Legal Discourse, Media Discourse, and Speech Rights; The Shift from Content to Identity—the Case of Israel, 19 Int’l J. Sociology of Law 45 (1991).

101  Ayyub, supra note 28, at 126; Douykat, supra note 28, at 20, 21.

102  See, eg, HCJ 188/53 Abu-Gash v Military Commander of the Corridor to Jerusalem, 7 PD 941, 943 (1953).

103  HCJ 351/80 Electricity Co. for the District of Jerusalem v Minister of Energy, 35(2) PD 673 (1981). In HCJ 802/79 Samara v the Commander of Judea and Samaria, 34(4) PD 1 (1980), the refusal to issue permission for the petitioner’s husband to reside in the West Bank was rejected by the Court since the authorities did not claim to have had security reasons for the act. See id. at 5.

104  This supervision of the High Court can be further curtailed when the minister of defense issues a Certificate of Privileged Evidence declaring the evidence that formed the basis of the administrative decision privileged for security reasons. In such a case a Justice of the Supreme Court may decide to reveal the evidence, despite the minister’s declaration, in cases where the former finds that the interests of justice override the concern that led to the declaration: Evidence Ordinance [new version], para. 44A. The tendency to defer to the authority’s judgment in security matters would imply that the decision to reveal the evidence despite the stated security interests would take place only where no real security concerns existed and the minister had misused his or her powers. In order to review the merits of a case despite the Certificate, a practice has developed in which the panel reviewing the case examines the privileged evidence ex parte: Itzhak Zamir, The Rule of Law and Control of Terrorism, 8 Tel-Aviv Studies in Law 81, 88–90 (1988).

105  See, eg, HCJ 572/82 Khamdan v Minister of Defence, 42(3) PD 337 (1987); HCJ 802/89 Nasman v IDF Commander in the Gaza Strip, 44(2) PD 601 (1990). The Court was especially critical of the IDF Attorney General’s decision not to prosecute a high-ranking officer for ordering the brutal beating of Palestinian detainees, and demanded that criminal proceedings take place. HCJ 425/89 Tsufan v IDF Attorney General, 43(4) PD 718 (1989).

106  In the Targeted Killing judgment, infra note 107, the Court mentions the ICC Statute as proof that the matter is justiciable.

107  HCJ 7015/02 Ajuri v IDF Commander, 56(6) PD 352 (2002), available at http://elyon1.court.gov.il/files_eng/02/150/070/a15/02070150.a15.pdf (deportations); HCJ 769/02 The Public Committee against Torture in Israel v The Government of Israel, 57(6) PD 285 (2005), available at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf (Targeted Killing); HCJ 3799/02 Adalah v GOC Central Command, IDF (2005), available at http://elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.pdf (human shields). The reliance on the GCIV in these cases is particularly striking when contrasted against the 1999 judgment prohibiting any harsh physical treatment of detainees, which was based strictly on formalities of Israeli law: HCJ 5100/94 Public Committee Against Torture v State of Israel (1999), available at http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf. On the shift see Eyal Benvenisti, Case Review: Ajuri et al. v IDF Commander in the West Bank et al., 9 European Public Law 481 (2003).

108  Such as the mass deportation of Hamas members from Gaza without granting the deportees prior hearing. The Court refused to issue an injunction to prevent the deportation, but insisted on establishing an ex-post hearing procedure to take place on the border: HCJ 5973/92 Association for Civil Rights in Israel v Minister of Defence, 60(3) PD 67 (1993) available at http://elyon1.court.gov.il/Files_ENG/92/730/059/Z01/92059730.Z01.pdf.

109  HCJ 179/80 Al-Gazawi v Panel of the Military Court in Gaza, 34(4) PD 411 (1980).

110  Shmalawi v Appeals Committee, supra note 87.

111  Kawassme v Minister of Defence, 35(3) PD 113 (1980).

112  On the applicability of the regular tests for lawfulness of administrative acts to the acts of the occupation administration, see Jama’it Askan, supra note 29, at 810. The principle of equal treatment of the residents of the territories was upheld by the Court, which ordered the distribution of gas masks to all residents of the West Bank on the eve of the 1991 Gulf War: HCJ 168/91 Morcous v Minister of Defence, 45(1) PD 467 (1991).

113  The most famous case is the Elon Moreh case, Douykat, supra note 28, where the Court declared an order seizing private land to establish a settlement as illegal. During the intifada, the Court ordered the government to give prior hearing before making decisions about the demolition of houses, a procedure that did not exist under the local emergency regulations. HCJ 358/88 Civil Rights Association in Israel v Commander General of the Central Area, 43(2) PD 529 (1989).

114  See the court’s recommendation to erect a military court of appeal in Arjub, supra note 74.

115  In July 1991 the authorities decided to abandon a plan to build a cemetery for Israelis on “state lands” in the West Bank near Jerusalem; the Attorney General’s office decided that the plan was in violation of international law and therefore there was no prospect of refuting a petition to the Supreme Court. Kol Ha’ir (weekly local newspaper), July 12, 1991.

116  On the practice of government lawyers operating in the shadow of the court to respond to petitions before they reach the court see Yoav Dotan, Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifada, 33 Law & Soc. Rev. 319 (1999).

117  Jama’it Askan, supra note 29, at 794–5.

118  Id.; Ayyub, supra note 28 (Vitkon J).

119  Jama’it Askan, supra note 29, at 811. This emphasis on the thin veil that separates the occupation administration from the Israeli government seems incompatible with an earlier decision, in another matter, that actually pierced that veil. See infra text accompanying notes 128–9.

128  Douykat, supra note 28, at 4.

120  Jama’it Askan, supra note 29.

121  On the lobbying by settlers to have their settlements included on the “Israeli” side of the Wall see Eyal Weizman, Hollow Land—Israel’s Architecture of Occupation 161–71 (2007). In one case before the Court the planner of the route concealed the intent to include on the Israeli side of the wall not only a settlement but also an area planned for further extension of that settlement. Although the Court ordered the changing of the route, the authorities ignored the judgment and three years after the initial judgment, the Court had to write that “[t]he judgments of this court are not recommendations” (HCJ 2732/05 Head of ‘Azzun Municipal Council v Government of Israel (2006), unofficial translation available at http://www.hamoked.org/files/2010/6657_eng.pdf).

122  HCJ 256/72 Electricity Co. for the District of Jerusalem v Minister of Defence, 27(1) PD 124, 138 (1972); HCJ 72/86 Zalum v Military Commander of Judea and Samaria, 41(1) PD 528 (1987).

123  HCJ 256/72, id. at 532. See also HCJ 72/86 Zalum v Military Commander of Judea and Samaria, 41(1) PD 528, 532 (1987).

124  Grant T. Harris, The Political Realities of Occupation, 41 Isr. L. Rev. 87, 134 (2008). See also Aeyal M. Gross, Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?, 18 EJIL 1, 25 (2007); Kretzmer, supra note 36, at 64–5, 187; Emma Playfair, Playing on Principle? Israel’s Justification for its Administrative Acts in the Occupied West Bank, in International Law and the Administration of Occupied Territories, 205, 222 (Emma Playfair ed., 1992).

125  HCJ 10356/02 Hess v Commander of the IDF forces in the West Bank, 58(3) PD 443 English translation available at http://elyon1.court.gov.il/files_eng/02/970/104/r15/02104970.r15.pdf (demolition of Palestinian houses to secure the safety of Jewish worshippers on their way to their place of worship at the Cave of the Machpela in Hebron).

126  HCJ 9593/04 Rashed Morar, Head of Yanun Village Council v IDF Commander in Judaea and Samaria (June 26, 2006) translation available at http://www.hamoked.org/files/2010/6974_eng.pdf; HCJ 3969/06 Dir Samet Village Council Head v Commander of the IDF Forces in the West Bank (unpublished, October 22, 2009); HCJ 2150/07 Ali Hussein Mahmoud Abu Safiyeh, Beit Sira Village Council Head v Minister of Defense (December 29, 2009) translation available at http://elyon1.court.gov.il/files_eng/07/500/021/m19/07021500.m19.htm.

127  HCJ 9717/03 Nili Local Committee v The Civil Administration for Judea and Samaria, 58(6) PD 97 (2004).

129  After the Elon Moreh decision, id., the method for acquiring land for settlements was changed. The new method utilized what the authorities claimed to be state lands and not private lands. The Supreme Court noted that this method precluded its review of the use of the property, because the petitioner, who was found having no rights, had no standing to petition the court: Al Nazer v Commander of Judea and Samaria, 36(1) PD 701 (1982); HCJ 277/84 Araieb v Appeals Committee, 40(2) PD 57 (1986).

130  HCJ 4481/91 Bargil v The Government of Israel, High Court of Justice of Israel 47(4) PD 210 (1993), para. 3; English translation available at http://elyon1.court.gov.il/files_eng/91/810/044/Z01/91044810.z01.pdf.

131  Coordinator of Government Operations in the Administered Territories, Ministry of Defence, The Administered Territories 1967/1971—Data on Civilian Activities in Judea and Samaria; the Gaza Strip and Northern Sinai, cited in Abu-Aita, supra note 90, at 99.

132  Abu-Aita, supra note 90, at 104.

133  Id. at 98.

134  Order Concerning Duty Tariffs (Judea and Samaria) (no. 1093), 5744–1984. This order delegates the authority to impose duties from the military government to the Israeli legislature and executive. It provides that any change in the Israeli law will apply automatically to imports that pass through Jordan.

135  Order Concerning Transport of Goods (Judea and Samaria) (no. 1252), 5748–1988. This order replaced the order in force since 1967.

136  Order Concerning the Transfer of Agricultural Produce (Judea and Samaria) (no. 47), 5727–1967.

137  General Permit to Import Goods (Judea and Samaria), 5748–1988; General Permit to Export Goods (Judea and Samaria) 5748–1988.

138  The legality of VAT was discussed in the Abu-Aita case, supra note 90.

139  Order Concerning Levy on the Purchase of Foreign Currency (Judea and Samaria) (no. 1055), 5743–1983.

140  Order Concerning Levy on the Purchase of Imported Services and Foreign Assets (Provisional Order) (Judea and Samaria) (no. 1183A), 5746–1986.

141  The comparable Israeli laws are Levy on Purchase of Foreign Currency, 5743–1983; Levy on the Purchase of Imported Services and Foreign Assets (Provisional Order) Law, 5745–1984.

142  Order Concerning Levy on Vehicles (Provisional Order) (Judea and Samaria) (no. 1150), 5746–1985. In Israel the law is Levy on Property Law (Provisional Order), 57451985, part C. The Israeli version also included levies on other properties.

143  Order Concerning Levy on Loans in Foreign Currency (Judea and Samaria) (no. 1228), 5748–1987.

144  For the Supreme’s Court evaluation of the legality of the new taxes under international law, see infra text accompanying notes 179–80.

179  CC (Jer) 910/82 National Insurance Institution v Abu-Ita [1988] (2) PSM 133, 143.

145  Order Concerning the Establishment of the Israeli Currency as Legal Tender (Judea and Samaria) (no. 76), 5727–1967.

146  Order Concerning the Israeli Currency as Legal Tender (Further Provisions) (Judea and Samaria) (no. 83), 5727–1967, para. 3. There is a criminal sanction for refusal to accept shekels at their face value.

147  See Order Concerning Currency Control (Judea and Samaria) (no. 952), 5742–1981, and the General Permit issued under the order.

148  Order Concerning the Amendment of the Banks Law (Judea and Samaria) (no. 1180), 5746–1986, and the directions issued pursuant to this order.

149  Order Concerning Awarding Interest and Indexing (Judea and Samaria) (no. 980), 5742–1982.

150  Order Concerning Stability of Prices of Goods and Services (Temporary Provisions) (Judea and Samaria) (no. 1125), 5745–1984.

151  According to State Comptroller Report no. 40, at 487 (1989), about two-thirds of the workers coming from the West Bank and Gaza to Israel, ie, about 70,000 out of 109,400 (in 1988), were employed in unskilled jobs. They comprised 42–45 percent of the total employees in building, sanitation, and agriculture. In 1987 those who worked in Israel comprised 39.8 percent of the entire work force in the territories.

152  General Exit Permit (Judea and Samaria) (no. 5), 5732–1972. Most workers—more than 60 percent in 1988—found employment illegally, ie, not through the labor exchanges. Id. at 489. For an analysis of the regulation of Palestinian labor in Israel see Neve Gordon, Israel’s Occupation 80–92 (2008); Guy Mundlak, Power-Breaking or Power-Entrenching Law? The Regulation of Palestinian Workers in Israel, 20 Comp. L. & Pol’y J. 574 (1999).

153  Ruth Ben-Israel, an Israeli expert in labor law, maintained that this arrangement did not conform to the Israeli law or to the standards set by the International Labour Organization: Ruth Ben-Israel, On Social Rights for Workers of the Administered Areas, 12 IYHR 141, ISO 150. (1982). In 1991 an Israeli weekly reported that the officials in charge were avoiding giving information regarding the whereabouts of these funds: Kol Ha’ir, July 26, 1991. This paper claimed that in 1990 the total deduction amounted to about US$45 million, of which US$3 million went to the National Insurance fund, and US$17 million was received by the Civil Administration; according to the report, the remaining sum was unaccounted for.

154  Order Concerning the Traffic Law (Judea and Samaria) (no. 56), 5727–1967, and other orders enacted thereafter. The Israeli requirements with regard to safety belts were also imposed in the occupied territories: Order Concerning Safety Belts in Vehicles (Judea and Samaria) (no. 600), 5735–1975.

155  (Judea and Samaria) (no. 677), 5736–1976.

156  (Judea and Samaria) (no. 215), 5728–1968.

157  A driver’s license from one region is valid in the other regions: para. 9A of the Order Concerning the Traffic Law, supra note 154.

158  The poor conditions have motivated local residents to sue other local residents in the Israeli courts. Thus, the plaintiff in Gabour v Hanitan [1983] (A) PSM 499, a Palestinian, requested that the court not decline its jurisdiction, because of the poor quality of the local judicial system. See also infra cases cited in note 171.

171  In later cases, the Court would emphasize the opposite claim, namely, that the occupation administration is quite distinct from the Israeli government. See discussion of the Jama’it Askan case, supra note 29 and accompanying text.

159  See Association For Civil Rights in Israel, Reflections On the Civil Rights in the Administered Territories: the Judicial and Administrative System 17 (1985) (in Hebrew) (“We have heard complaints that civil suits against Jews [in the local courts] face obstacles since they resist the local police force and the clerks of the local court and execution offices.…Thus it seems that the local court system continues to apply mainly to disputes between local [that is, Arab] residents”).

160  “Documents” include also subpoenas and court interim and final decisions. See CA 179/77 Bank Leumi Le-Israel B.M. v Hirschberg, 32(1) PD 617 (1978) (“document” includes any legal act that can be effected through a document issued by a court, including an order freezing bank accounts). An attachment of property, an act that entails registration in official registers, or any other act required under Israeli law in addition to the document must be executed by the Execution Bureau of the Territories, CA 61/89 Po’alim Bank v Daks, 44(1) PD 201 (1989).

161  Regulation of Procedure (Service of Documents in the Administered Territories), 5729–1969. A similar regulation was enacted by the minister with regard to documents of the labor courts.

162  25(2) PD 13 (1971).

163  The extraterritorial jurisdiction of Israeli courts is fashioned according to the common law principle of the service of the summons on the defendant. By the act of service itself, the court’s extraterritorial jurisdiction is established. The service of process is conceived as an act of sovereignty, in fact the only relevant act of sovereignty; thus no additional contact points of the defendant with the forum are formally required (although the courts have discretion not to establish jurisdiction where there is no connection between the claim and the forum). Therefore, when the defendant is in Israel, even as a tourist, there is no obstacle to serving the summons on him or her, thereby granting the court jurisdiction to adjudicate the claim. When the defendant is abroad, the crucial act of service is not controlled by the local sovereign, but rather is contingent upon the cooperation of the country where that person is found. Thus, the Israeli rules regarding international jurisdiction in civil matters are defined through regulations of civil procedure that prescribe the conditions on which the courts shall grant leave to serve documents abroad.

164  Another interpretation of the regulation was possible, and, indeed, more appropriate: Baruch Bracha, Service of Documents to the Administered Territories, 4 Mishpatim 119 (1972–73) (in Hebrew), suggests that the regulation be interpreted as regulating the means by which such a service may be effected after the court has granted a service of process to the territories. This interpretation would also have been compatible with international law. See infra text accompanying notes 166–8.

166  Paragraph 4 of the Order Concerning Legal Aid, supra note 165. Registrations of court orders concerning immovables that are registered in the military-run Registry of Land (which registers the land held by the authorities) can be effected directly by the military registrar if the court has so ordered: para. 16 of the Regulations Concerning Registration of Transactions in Certain Immovables (Management and Registration) (Judea and Samaria), 5735–1975. A parallel order for the Gaza Strip is Order Concerning Legal Aid (The Gaza Strip and Northern Sinai) (no. 318), 5730–1969.

165  Paragraph 2 of the Order Concerning Legal Aid (Judea and Samaria) (no. 348), 5730–1969, states: “A document issued by [an Israeli civil court or execution office] shall be served in the region in the manner prescribed in the Israeli civil procedure regulations.” This order was criticized as being in violation of the law of occupation: Eli Nathan, Israel Civil Jurisdiction in the Administered Territories, 13 IYHR 90, 115 (1983) (“The powers of the military government [or of the Israeli government] over the administered territories under the laws of belligerent occupation would not appear to include the power to extend the civil jurisdiction of the Israeli courts over the residents of the Administered Territories in such a manner…”).

167  Order Concerning Legal Aid (Amendment) (Judea and Samaria) (no. 1294), 5750–1989; id. (the Gaza Strip) (no. 997), 5749–1989.

168  Judgments rendered in the territories can be enforced in Israel as if they were Israeli judgments, provided that the military commander of the relevant area confirms the document’s authenticity and that the Israeli attorney general does not oppose that execution as one that is “likely…to harm Israel’s sovereignty, its security, or its public policy.” Paragraph 5 of the Order Concerning Legal Aid, supra note 165, and the parallel Israeli Emergency Order (Judea, Samaria, and Gaza—Legal Aid) (no. 2), 5736–1976, paras 3 and 4.

169  CC (Jer) 438/83 Levi v Barouch [1984] (3) PSM 45, at 55.

170  CA 211/73 Shurpa v Wechsler, 28(1) PD 512, 517 (1973). See also Bank Leumi v Hirschberg, supra note 160, at 620, holding that “even though the administered territory does not form a part of the [Israeli] territory, and from the procedural point of view it is prima facie outside the jurisdiction of an Israeli court, an act of an Israeli court performed in the administered territory does not infringe in fact upon the sovereignty of any other power.”

172  This decision is contrary to a prior Israeli precedent, which held that the powers of the occupant rest a fortiori in its home government. CrimA 1/48 Attorney General for Israel v Sylvester, 1 PD 5 (1948), [1948] AD Case no. 190 (February 8, 1949) on this precedent see Chapter 4, text to note 181.

181  Crim A 1/48 Attorney General for Israel v Sylvester 1PD 5 (1948) [1948] AD Case no. 190 (February 8, 1949). The court instead asserted that “if international law recognizes that the military commander has certain powers of legislation, a fortiori such power is vested in the legislature of the occupant from which the military commander derives his own authority.…Accordingly there is no substance in the assertion that the laws that were applied to the occupied territory are invalid because they were issued by the State of Israel and not by the military commander of the occupying forces.” This runs against the principle that the occupation administration must be distinct from the state and independent of it. See also Chapter 8, text to note 190.

173  The same criticism applies to the application of Israeli substantive law (contract law, tort law, labor law, etc., as will be described infra) to regulate behavior in the occupied territory. Such extension of the occupant’s “home” law may benefit the local individual, and might be justified under the law of occupation, but such an assessment cannot be circumvented.

174  CA 300/84 Abu-Atiya v Arabtisi, 39(1) PD 365, 385 (1985) (examination of the reasonable expectations of the parties to the litigation).

175  The older rule, which would have narrowed significantly the prospect of rejecting such claims, permitted the court to decline jurisdiction only on condition that the defendant showed that (1) the continuation of the trial would be unfair to him or her, and (2) that the dismissal of the case would not jeopardize the plaintiff’s claim. This was the test laid down in the English case of St Pierre v South American Stores Ltd [1936] 1 K.B. 382, and adopted in Israel in CA 334/57 Hachamov v Schmidt, 12 PD 59 (1957). See Stephen Goldstein, International Jurisdiction Based on Service on the Defendant, 10 Mishpatim (Hebrew U. L. Rev.) 409 (1980) (in Hebrew).

176  Abu-Atiya v Arabtisi, supra note 174, at 372, 385; CA 588/83 Elraias v Arab Insurance Co. Ltd, 38(3) PD 495, 496 (1984). See also the Jerusalem District Court decisions: CC (Jer) Gabour v Hanitan, supra note 158; Admin (Jer) 1410/83 Arab Insurance Co. Ltd v Khader [1984] (2) PSM 172.

177  HCJ 188/53 Abu-Ita v Ya’akobi, CA 425/81, unpublished decision (1981); Abu-Atiya v Arabtisi, supra note 174, at 386. Some questions are still left open. For instance, what will the case be when the only contact to Israel is the place of the act or omission that gives rise to action (a variation on the first rule)? Will it make any difference if all but one of the litigants in a multiparty litigation were non-Israelis (a variation on the second rule)?

178  All reported decisions, without exception, ruled that the Israeli law applied to transactions among Israelis even if they took place in the territories. See infra note 169, and infra note 205, and in general see Michael M. Karayanni, The Quest for Creative Jurisdiction: The Evolution of Personal Jurisdiction Doctrine of Israeli Courts Toward the Palestinian Territories, 29 Mich. J. Int’l L. 665 (2008).

205  CA 7665/06 Lanziano v Municipality of Ariel (not published, Judgment of October 11, 2007).

180  Abu-Ita v Ya’akobi, CA 425/81, unpublished decision at 6–7 (1981). For a critical view see Iris Kanor, Israel and the Territories; the Interplay between Private International Law and Public International Law, 8 Mishpat Umimshal 551 (2005 in Hebrew).

181  According to a National Labor Court decision, a Palestinian policeman employed by the Israeli police in Gaza was not entitled to the benefits of the Israeli Pensions Law and Discharge Indemnifying Law. According to the court, there was “no fault in the fact that the working conditions of a policeman who is a resident and citizen of Israel who serves in the Territories were different from those of a local policeman who was not a citizen of Israel.” Abu-Tir v Israeli Police, Case 7–4/1985, unpublished decision at 7 (1989). This seems to be also the approach of the military authorities: See Order Concerning Employment of Workers in Certain Places (Judea and Samaria) (no. 967), 5742–1982. The “certain places” are the Israeli settlements, and the implicit assumption of the order is that the local law applies to labor contracts in those places.

182  For discussion of the evolving case law see Amir Paz-Fuchs & Yael Ronen, Occupational Hazards: Labor Law in the Occupied Territories, 30 Berkeley J. Int’l L. (forthcoming 2012); Michael M. Karayanni, Choice of Law under Occupation: How Israeli Law Came to Serve Palestinian Plaintiffs, 5 J. Private Int’l L. 1 (2009).

183  HCJ 8672/05 Adalah v Minister of Defense [2006] (2) Isr. L.R. 352. See also CA 5964/02 Bani ‘Odeh v State of Israel, 56(4) PD 1 (2002) (unofficial translation available at http://www.hamoked.org/files/2011/350_eng.pdf) where a nine-judge panel interpreted restrictively the state’s exemption under Israeli law from tort liability for “wartime action” for intifada-related injuries. The statute that the Adalah judgment declared unconstitutional had been promulgated in response to the Bani ‘Odeh judgment.

184  For an examination of the occupant’s power to requisition land for military needs see Art. 52 of the Hague Regulations; Ernst H. Feilchenfeld, the International Economic Law of Belligerent Occupation 32–9 (1942); Georg Schwarzenberger, International Law As Applied by International Courts and Tribunals, Vol. Ii: the Law of Armed Conflict 268–88 (1968); Julius Stone, Legal Controls of International Conflicts 707–9 (1954).

185  According to local land laws, unregistered lands that are not cultivated are considered state lands, and therefore subject to Art. 55. Most of the settlements were established on such lands. It should be noted that Palestinian jurists claimed that these lands were, in fact, privately owned. See eg, Aziz Shehadeh, The Concept of State Land in the Occupied Territories, affidavit submitted to the Israeli Supreme Court, translated and reproduced in 2 Palest. Yb Int’l L. 163 (1985); Raja Shehadeh, Occupier’s Law 26–33 (rev. ed., 1988). On this issue, see Yifat Holzman-Gazit, Land Expropriation in Israel: Law, Culture and Society 129–50 (2007); Geremy Forman, A Tale of Two Regions: Diffusion of the Israeli “50 Percent Rule” from the Galilee to the Occupied West Bank, 34 Law & Soc. Inq. 677, 686–703 (2009); Eyal Zamir, State Land in Judea and Samaria—The Legal Status (1985, in Hebrew).

186  On this see Benvenisti & Zamir, supra note 69, at 315. The restrictions on the purchase of immovable property by aliens imposed by Jordan before 1967, provided, inter alia, that foreign corporations could purchase and hold land in Jordan only with the approval of the Jordanian government, only within the boundaries of towns and villages, and only to the extent it was essential and necessary for their activity, but not for investment or trade. The Order relating to the Law Concerning the Possession and Use [Tass’aruf] of Immovable Property by Legal Entities (West Bank) (no. 419), 5731–1971 authorizes the Head of the Civil Administration to allow local and foreign corporations to purchase and use land, notwithstanding the non-compliance of the conditions set by Jordanian law.

187  “Israelis” are defined for the purpose of the extension of Israeli laws. Paragraph 6B (enacted in 1984) of the Israeli Emergency Regulations (Judea, Samaria and Gaza—Adjudication of Offenses and Legal Aid), 5727–1967, provides that the term “Israeli” shall include “also a person whose place of residence is the area [ie, the West Bank and Gaza] and who is an Israeli citizen, or who is entitled to immigrate to Israel under the Law of Return, 5710–1950, and had his residence been in Israel that person would have been included under the same expression [ie, a non-Israeli Jew who settled in the area].”

188  Id., para. 2(a), as amended in 1988, provides that the courts in Israel “have jurisdiction to adjudicate according to the Israeli law a person who is present in Israel, with regard to that person’s act or omission that has occurred in the area [ie, the territories] and that would have constituted an offence had it occurred within the area under the jurisdiction of the Israeli courts.” For the purposes of this regulation, “a person who is present in Israel” includes those registered in the Israeli Population Register and corporations registered in Israel or conducting business there or controlled by one of the above.

189  Paragraph 3A (enacted in 1978 and amended in 1990) of the Income Tax Ordinance provides that income of Israeli persons and corporations, including corporations that reside in the territories but are controlled by Israelis, procured in the territories is deemed to have been procured inside Israel, and that the tax is to be paid to the Israeli treasury, with a deduction of the amount of income tax paid to the military authorities in the territories. Paragraph 144A of the Value Added Tax Law, as amended in 1979, provides that transactions between Israelis in the territories will be deemed to have occurred in Israel. The Land Appreciation Tax Law, Amendment 15, 5744–1984, extends the land appreciation tax, which serves in Israel as a capital gains tax with regard to the sale of immovables, and also taxes the buyer of immovables, to immovable property in the territories.

190  The Elections to the Knesset Law provides that only Israelis registered in the Israeli Population Register as residents of Israel can vote, and then only by voting in the ballot of the registered Israeli residence. The settlers are the only nonresidents who are given the right to vote, and this right to vote abroad is given to them, the diplomatic corps, and sailors only.

191  See schedule to the Emergency Regulations, supra note 187. In the National Insurance Regulations (Application on Special Categories of Insured), 5747–1987, and in the National Insurance Order (Categories of Volunteers Outside Israel), 5747–1987, the minister of labor and social affairs extended the National Insurance Law to cover also Jews who work in the territories, and those who volunteer in the Jewish settlements.

192  Therefore, any law that would apply to those who are required to register in the Population Registry would automatically also apply to the Israeli residents of the territories. See the amendment to the Land Appreciation Tax Law, which defined “Israeli citizens” simply as those who are registered or must be registered in the Population Register.

193  The Supervision of Goods and Services Law (Amendment no. 12), 5742–1982.

194  Paragraph 38A of the Property Tax and Compensation Fund Law, 5721–1961, and Property Tax and Compensation Fund (Payment of Compensation for Damages) (Israeli External Property) Regulations, 5742–1982.

195  Regulation 12(d) of the Dismissal Compensation Regulations (Computation of Compensation and Resignation that is Seen as Dismissal), 5742–1964.

196  CrimA 123/83 K.P.A. Co. v State of Israel, 38(1) PD 813, 819 (1984). The Court did not discuss its prior conflicting holding in Sylvester, supra note 172, where it did see a connection between such legislation and the law of occupation. In that case the Court ruled that the law of occupation may vest the power to legislate in occupied territories in the occupant’s home government. On this matter see Chapter 4, text to note 181.

197  Thus, eg, the rules that regulate the process of admitting new personnel to the Israeli local administration are incorporated as a living body of rules in the by-laws. As this process includes examination and approval of candidates by Israeli authorities, the local authorities are also subject to the rules. So are the rights of the local and regional councils to allow their taxpayers to pay the annual municipal tax in installments, to collect interest on outstanding debts, to exempt from taxation, and to determine the fines for violations of local regulations.

198  See Order Concerning Interpretation, para. 8, supra note 57. Even the regulations issued by the municipalities under the by-laws are elevated, for the purposes of the Order Concerning Interpretation, to the level of a security enactment of the military commander of the region (and therefore considered primary legislation in the territories): Paragraph 76 of the regional by-laws and para. 93 of the local by-laws provide that: “For the purpose of paragraph 8 of the Order Concerning Interpretation…the regulations made in pursuance of these by-laws shall be deemed security enactments issued by the area Commander.”

199  Eg, the military commander “establishes” a local Council for Higher Education whose members happen to be at the same time members of the parallel Israeli Council for Higher Education, and so the Israeli council sets policies that apply at the same time also to the academic institutions in the settlements.

200  Schedule 3 applies to the settlers the Israeli laws of personal status that regulate, among other things, adoption, marriage (including the age of marriage, the ownership and administration of communal property, and the duty financially to support members of the family), and questions of legal competence, guardianship, and inheritance. The domicile of the settlers for the purpose of these laws is also determined. The schedule creates a non-rebuttable presumption that these people are domiciled in Israel. See paras 4(e)(2), 4(g)(6)(b), 4(k)(7). In other schedules, the Israeli requirements with regard to education and the practice of medical, psychological, and related occupations are imposed. In the “labor law” schedule, the Israeli order concerning minimum wages is extended to employees who are settlers. Rabbinical courts, erected by military orders, handle marriage and divorce matters.

201  By-Law no. 138.

202  Until now, the commander has established in the West Bank three courts of first instance: in Ariel, Kiryat Arba, and Ma’ale Edomim.

203  Judges of the Israeli magistrates’ courts will be appointed to the domestic courts of first instance; judges of the Israeli district courts, to the court of appeals.

206  Paragraph 140A of the by-laws.

207  The director general decided on the division of districts on February 20, 1984.

208  See Order of the Employment Services (The Establishment of an Office for Employment and its Jurisdiction) of May 29, 1985.

209  Order Concerning the Employment of Workers in Certain Places (Judea and Samaria) (no. 967), 5742–1982, para. 3 (as amended on November 19, 1987, and on November 7, 2007). There are no minimum wage or, index adjustments in other workplaces in the territories.

210  Paragraph 4A of the Order Concerning Legal Aid, supra note 165. In this bureau there is no need to append an Arabic translation of the document.

211  CC (BS) 151/80 Kaplan v Gabai [1982] (2) PSM 290; Admin (TA) Katz v Segal [1986] (2) PSM 119. These cases followed a line of reasoning that is accepted in many jurisdictions (in the US, the first such case was Babcock v Jackson, 12 N.Y.2d 473 (1963); in England, it was Chaplin v Boys [1969] 2 All E.R. 1085). The same rule is accepted in many European countries: 2 Henry Batiffol & Paul Lagarde, Droit International Privé para. 558, at 239–42 (7th ed., 1983). In fact, the first use of this rule was made by Germany during World War II, through an ordinance of December 7, 1942, which applied German tort law to torts committed abroad by German nationals or German institutions against other Germans. This wartime ordinance has not been invalidated since: Gerhard Kegel, Internationales Privatrecht 465–6 (6th ed., 1987).

212  Contracts between Israeli employers and employees for labor to be performed in the territories are governed by Israeli law. HCJ 663/78 Kiryat Arba Administrative Board v National Labor Court, 34(2) PD 398, 403 (1979) (“To Israeli workers who are employed by the Commander of the Area…apply the Israeli labor law, including the right to litigate in Israel’s labor courts”).

213  Neve Gordon, Israel’s Occupation 177 (2008). See also the calculations taken from Haim Gvirtzman, Maps of Israeli Interests in Judea and Samaria (Begin-Sadat Center for Strategic Studies, Bar Ilan University, undated).

214  See Hanafi, supra note 67, at 111.

215  Weill, supra note 72, at 408–9.

216  Id. at 419.

217  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep. 136 at para 120; Security Council Resolution 465 (1980) (“Determines that…Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention” (UN Doc. S/RES/465). The ICRC viewed the settlement issue as being controlled by Art. 49 in The Middle East Activities of the ICRC, 10 Int’l Rev. Red Cross 424 (1970). It states that the ICRC has intervened against settlement efforts when such were “immediately detrimental to the Arab residents.” Id. at 459. On the reactions of the UN General Assembly and Security Council, see Roberts, supra note 24, at 85–6.

218  The Israeli section of the International Commission of Jurists, the Rule of Law in the Areas Administered by Israel 54–5 (1981).

219  Id., see also Dinstein, supra note 24, at 124 (“one should differentiate between the transfer of people—which is forbidden under Article 49—and the voluntary settlement of nationals of the occupant, on an individual basis [which] if not carried out on behalf of the occupant’s Government and in an institutional fashion, is not necessarily illegitimate”; Eugene V. Rostow, Palestinian Self-Determination: Possible Futures for the Unallocated Territories of the Palestine Mandate, 5 Yale Studies in World Public Order 147, 160 (1979).

220  Commentary: the Fourth Geneva Convention 283 (Jean S. Pictet ed., 1958); Hersch Lauterpacht, ed., Oppenheim’s International Law 452 (7th ed., 1948). The general theme of the GCIV is to protect people from acts of a government that is not their own. Under Art. 4 of the Convention, the persons protected under the Convention are those who find themselves in the hand of the occupant “of which they are not nationals.”

221  HCJ 1661/05 Regional Council, Coast of Gaza v Knesset of Israel, 59(2) PD 481 (2005), para. 12.

222  Article 85(4)(a) of Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted June 8, 1977, entered into force December 12, 1978) 1125 UNTS 3.

223  Rome Statute of the International Criminal Court, Art. 8(2)(b)(viii), UN Doc. A/CONF.183/9; 37 ILM 1002 (1998); 2187 UNTS 90. For more on this point see Chapter 12, text accompanying notes 130–2.

130  On these questions see Ariel Zemach, Fairness and Moral Judgments in International Criminal Law: The Settlement Provision in the Rome Statute, 41 Colum. J. Transnat’l L. 895 (2002–2003).

224  See Roberts, supra note 24, at 85.

225  For discussion and criticism see Benvenisti & Zamir, supra note 69, at 316.

226  On the status of East Jerusalem see supra text accompanying notes 9–20; on the Golan Heights, see supra text accompanying notes 5–8.

227  On this claim, with respect to Jerusalem, see supra note 10. On the Palestinian’s right to self-determination and its infringement by the route chosen for the Wall see the ICJ Advisory Opinion on the Wall, supra note 37.

228  Abu-Aita, supra note 90.

229  See, eg, Kahan, supra note 69, at 68–70.

230  A Change of Policy in the Territories: The Inhabitants Will Be Permitted to Build Factories in Order to Develop an Independent Economy, Ha’aretz, December 23, 1990, p. 1, col. 2. The State Comptroller Report, no. 41, at 850 (1990), noted that between 1986 and early 1990, about eighty requests for permits were presented to the authorities, of which only seven were approved. Later, in August 1990, thirty-six requests were granted.

231  By extending the import duties to the territories, the highly protected Israeli industry enjoyed a larger consumer market for its products.

232  See supra text accompanying note 148.

233  See supra text accompanying note 131.

234  Abu-Aita, supra note 90.

235  Id. at 105–6 (references are to the English translation).

236  Id. at 104 (emphasis added).

237  Feilchenfeld observed that “it would seem less clear that a mere occupant is free to abolish all the customs lines between his own country and the occupied region; for this almost invariably would be an intrinsic measure of complete annexation which a mere occupant has no right to effect.” Feilchenfeld, supra note 184, at 83.

238  2 Lauterpacht, supra note 220, at 432 (emphasis added). Shamgar, supra note 22, at 43, adds that “pending an alternative political or military solution [occupation]…could, from a legal point of view, continue indefinitely.”

239  22 UN SCOR (1382d mtg) at 8–9 (1967).

240  General Assembly Resolution 3171 (XXVIII), of December 17, 1973.

241  The occupant’s powers were further curtailed by Resolutions 3175 (XXVIII) (1973) and 3336 (XXIX) (1974), which would render unlawful, and subject to full compensation, the exploitation of natural and human resources in occupied territories.

242  This position might be criticized by the following proposition; since the occupant’s rivals would probably claim that the occupant is not a bona fide occupant, they would similarly treat its prescriptions as illegal and void. These conflicting positions would inject political considerations into the law of occupation, destroy its promise of an impartial and apolitical administrative mechanism, and undermine any prospects of certainty and stability of expectations. I doubt if such repercussions will be significant, given the fact that rivals’ reactions to occupants’ measures have usually been negative even without the claim I make now. For the reactions of ousted and returning governments. Moreover the consequences of the regime’s illegality depend on a wide range of considerations: see Chapter 11.

243  HCJ 337/71 The Christian Society for the Sacred Places v Minister of Defence, 26(1) PD 574, 582 (1971).

244  Jama’it Askan, supra note 29, at 811.

245  Roberts, supra note 24, at 52. He does, however, recognize the occupant’s power to make drastic and permanent changes in the economy or system of government if such are needed. Id. at 53.

246  Cf Grant T. Harris, The Political Realities of Occupation, 41 Isr. L. Rev. 87, 104 2008 (“there exists a tension between the spirit and assumptions of the international law of occupation and the facts on the ground, perhaps creating a need for flexibility and greater legislative powers that goes beyond the scope of the traditional law of occupation”).

247  See Chapter 4, text accompanying notes 170–9.

170  See Eric Stein, Application of the Law of the Absent Sovereign in Territories under Belligerent Occupation: The Schio Massacre, 46 Mich. L. Rev. 341, 352–3 (1948); see also the Us Judge Advocate General’s School, Legal Aspects of Civil Affairs 104 n. 10 (1960), which states that “the belligerent occupant is under no legal obligation to apply laws promulgated by the absent sovereign subsequent to the occupation.” The Israeli view is pronounced in Proclamation Concerning Law and Administration (no. 2) of June 7, 1967.

248  See id., and also Chapter 12, text accompanying notes 42–4.

42  For an assessment of the influence of the German Reichsgencht, see Chapter 5, Section 5.2.2.

249  In case of conflict of interests between the population under occupation and the ousted government, the GCIV, if not the Hague Regulations, would seem to prefer the interests of the local population. See Chapter 2, text accompanying notes 79, 81.

79  Halleck, id. at 781.

81  Halleck attributed this to the peculiar nature of the US governmental structure, Halleck, id. at 784.

250  Emma Playfair, supra note 124, at 205, 223.