Security, Rights and Law

The Israeli High Court of Justice and Israeli Settlements in the Occupied West Bank

Rouba Al-Salem

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351602273
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Winner of the 2019 Francis Lieber Prize Recognizing an Exceptional Published Book in the Field of the Law of Armed Conflict

This book examines how the Israeli High Court of Justice (HCJ) has interpreted and applied international law principles in adjudicating petitions filed by Palestinians. The research focuses on HCJ judgments that have been rendered since the outbreak of the Second Intifada (2000) in relation to petitions challenging the legality of measures implemented by various Israeli governments and military authorities for the professed need of enhancing the security of Israeli settlements and settlers in the occupied West Bank. It discusses to what extent the HCJ provides a venue for an effective domestic remedy for alleged violations of the Palestinians' internationally protected rights. It further analyses the judgments of the Court seeking to demonstrate why it appears to show a preference for invoking principles of Israeli administrative and constitutional law, thereby promoting the domestic rather than international Rule of Law. Although the jurisprudence of the HCJ has often been hailed as that of an 'activist' court, the analysis of petitions adjudicated by the Court between 2000 and 2014 illustrates why its approach is ill-suited to a situation of prolonged military occupation. Finally, the book evaluates what impact the Court's adjudication, reasoning and interpretation has on the normative coherence of the international law of belligerent occupation.

1 Adjudicating human rights and security in occupied territory

The legal and political context

I have come to the opinion that this professional viewpoint of the chief of the general staff would not, in and of itself, have led to the decision to establish the Elon Moreh community if it were not for another reason […] namely, the fervent desire of Gush Emunim members to settle in the heart of the Land of Israel […].¹

– Moshe Landau Vice President at the HCJ

Introduction

Few conflicts in the world elicit as much debate as the Palestinian–Israeli conflict.² In June 1967, following a six-day war between Israel and neighbouring Arab States, the former occupied the West Bank, including East Jerusalem (EJ) and the Gaza Strip,³ thereby bringing its Palestinian inhabitants under Israeli rule.⁴ Shortly thereafter, Israeli authorities established a military government in those territories, to ‘assume responsibility for security and maintenance of public order in the Area’.⁵ Headed by the Military Commander (MC) of the ‘Area’, authorities issued a military order (MO) which invested in this government all powers of the government, legislation, appointment and administration in relation to the occupied Palestinian territory (oPt), or its population.⁶ All powers not considered to be of a civil nature (i.e. those strictly military and security related) were retained by that MC.⁷ Since then, this administration has promulgated thousands of primary security legislations (i.e. MOs and secondary legislations).⁸ These were to prevail over all other laws that are in effect in the oPt even when the former did not explicitly abrogate the latter.⁹ At the time of the beginning of Israel’s occupation, these local laws included Ottoman laws, British Defence (Emergency) Regulations (1945) and Jordanian law (in the West Bank).¹⁰ In 1981, a Civil Administration (CA) was created by way of an MO to administer the ‘civil affairs’ of the ‘local population’.¹¹

Under international law, Israel’s control of these territories is governed by the laws of belligerent occupation.¹² Part of international humanitarian law (IHL),¹³ this body of law is codified in legal instruments such as the Hague Regulations (1907),¹⁴ the Fourth Geneva Convention (1949)¹⁵ and the Additional Protocol to the Geneva Conventions (1977).¹⁶ The de jure applicability of the Fourth Geneva Convention to the oPt has consistently been upheld by the UN General Assembly (GA) and the Security Council (SC).¹⁷ It has also been reaffirmed by the International Court of Justice (ICJ) in its Wall Advisory Opinion of 2004,¹⁸ and by the Conference of the Red Cross and Red Crescent and the International Committee of the Red Cross (ICRC).¹⁹

Situations of occupation and armed conflict are also governed by international human rights (IHR) law.²⁰ In this regard, it is important to recall that the extra-territorial applicability of IHR-related treaties and conventions to the oPt (signed and ratified by Israel) has also been upheld by the ICJ²¹ and by various UN treaty-monitoring bodies.²² This is in addition to the Palestinians’ right to self-determination, a right that has gained steady recognition from the international community over the years.²³

Although in a situation of armed conflict IHL remains the lex specialis,²⁴ the latter should be understood as a principle that aids in the interpretation of concrete rules, and not one of solving conflicts between normative orders in abstracto.²⁵ In other words, derogation from IHR law should not take place in its entirety.²⁶ Adopting this approach gives weight to the notion that ‘both spheres of [IHL and of IHR] law are complimentary, not mutually exclusive’.²⁷ Many fundamental rules and principles²⁸ of IHL²⁹ and of IHR law³⁰ are reflective of international customary law.³¹ In the case of the international law on the use of force (jus ad bellum),³² following the outbreak of the Second Intifada in 2000, Israeli authorities have invoked the right of self-defence to justify the resort to certain security-based measures.³³ While the HCJ has accepted the government’s position,³⁴ it does not directly address the relevance of the jus ad bellum framework in its adjudication of the petitions examined here. At the same time, the belief that the measures are essentially in self-defence has been internalized by the Court, thereby influencing its judicial logic and approach to these petitions.

Not long after 1967, Israeli government authorities began building and expanding Jewish communities (settlements)³⁵ beyond the Green Line,³⁶ inside the West Bank, a territory which Israeli authorities referred to as ‘Judea and Samaria’.³⁷ Settlement activity also took place in EJ, which Israel annexed de jure in 1980.³⁸ In 1993, the Oslo peace process between the Palestine Liberation Organization (PLO) and Israel was launched,³⁹ during which settlement-related activities continued.⁴⁰ In 2005, Israel dismantled its settlements and withdrew both its military forces and all of its settler population from the Gaza Strip.⁴¹ However, settlement construction and expansion continued in the West Bank. By the end of 2015, the territory housed 127 government-sanctioned settlements in which an estimated 588,000 Israeli settlers still reside.⁴² From those, an estimated 205,220 Israeli settlers live in 15 settlements in annexed EJ,⁴³ while approximately 382,000 live in the rest of the West Bank.⁴⁴ In addition, there is an estimated 100 ‘unauthorized outposts’, a term which refers to Israeli settlements that were built in violation of Israeli administrative requirements.⁴⁵

Much of the construction and expansion of settlements in the West Bank has taken place with the active political and economic support of successive Israeli governments.⁴⁶ An examination of the 2009–2010 government budgets indicates that an estimated one billion New Israeli Shekel (NIS), that is, approximately 265 million USD, were earmarked for settlements each year.⁴⁷ In past years, the price of the settlements is estimated to have reached approximately 2.5 billion NIS/year (i.e. an estimated 662.5 million USD).⁴⁸ This is in addition to various government subsidies and incentives designed to encourage Jewish migrants to Israel to move to these settlements and to boost their economic development.⁴⁹ During the past decade, the annual growth rate of the Israeli settler population in the oPt has stood at a yearly average of 5.3 per cent (excluding EJ) in contrast to 1.8 per cent by the Israeli population as a whole.⁵⁰ Today, most settlements are no longer temporary constructs, but have developed into full-fledged small or medium-sized towns with sophisticated highways and ‘bypass’ roads to link settlements to each other, as well as to Israel proper, and with the necessary infrastructure to accommodate them.⁵¹

The illegality under international law of the construction of settlements by Israeli authorities has featured in resolutions by the UN SC,⁵² the ICJ,⁵³ the UN GA⁵⁴ and the Conference of the Red Cross and the ICRC.⁵⁵ One of the most commonly invoked provisions of this Convention has been article 49(6), which stipulates that ‘[t]he Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’.⁵⁶ State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.⁵⁷ Moreover, as a legal memo by a former legal advisor to the Israeli Ministry of Foreign Affairs had underscored, this prohibition is categorical and not conditional upon motives for the transfer or its objectives.⁵⁸ The Rome Statute of the International Criminal Court (ICC) also defines ‘the transfer directly or indirectly by the Occupying Power of parts of its own civilian population into the territory it oc...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Acknowledgements
• List of abbreviations
• List of interviewees
• Introduction
• 1 Adjudicating human rights and security in occupied territory: the legal and political context
• 2 The HCJ’s examination of security-related measures challenging the occupation’s temporary nature requirement
• 3 Security and welfare of the ‘local population’: implications of the HCJ’s adjudication for the normative principle that occupation is a form of ‘trust’
• 4 The HCJ’s examination of security-related measures in light of the requirement that occupation does not bestow sovereignty
• 5 The HCJ and ‘unauthorized outposts’
• Conclusion
• Index