The Legitimating Role of the Israeli High Court of Justice: From Occupation to Segregation

Sharon Weill*

The Legitimating Role of the Israeli HighCourt of Justice: From Occupation toSegregation

Abstract: Since the early years of the occupation, Israel has promoted a settle-ment policy and encouraged Israeli Jewish citizens to live in new communities itestablished in the OPT. Over the years, the Israeli and Palestinian populationsliving in separated cities and villages, situated side by side, over the entireOccupied West Bank, have been placed under the jurisdiction of two differentsets of laws. The creation of this segregated legal regime in the OPT wasindispensable in order to keep the original Palestinian population subordinatedto military rule, denied civil rights and any democratic representation, and tocarry out the settlements policy of the State of Israel. This article demonstratesthrough a critical analysis of case law, how the Israeli High Court of Justice,through the selective use (and misuse) of the law of military occupation, notonly has legitimatized the creation of a segregation regime in the OPT but alsohas actively contributed to its formation by providing the State with the neces-sary legal tools required to design and implement it.

Keywords: critical legal studies, international humanitarian law, Israeli highcourt of justice, Palestine, segragation

DOI 10.1515/gj-2014-0023

1 Introduction

National courts of democratic states can assume different roles while adjudicat-ing cases dealing with issues arising out of armed conflicts.1 They can variouslyserve as a legitimating agency of the state; avoid exercising jurisdiction on thegrounds of extra-legal considerations; defer the matter back to the other

*Corresponding author: Sharon Weill, Sciences Po – PSIA, 28 rue des St. Pères Paris, PARIS75006, France, E-mail: [email protected]

1 See Weill (2014).

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branches of government; enforce the law as required by the rule of law; ordevelop the law, and introduce an ethical judgment beyond the positive appli-cation of the law. Depending on their institutional position within their domesticgovernmental system and jurisdictional framework, national courts can definetheir own role as enforcing organs of international humanitarian law (IHL).

Since the beginning of the military occupation of the Occupied PalestinianTerritories (OPT) the Israeli High Court of Justice2 has been petitioned on anunprecedented scale, rendering hundreds of decisions in which it has appliedIHL. Its functional role in applying IHL can be characterized as a combination ofmixed attitudes. In some cases the Court has introduced important limits to theactions of the State and of the military forces, even during active hostilities.3 TheIsraeli High Court of Justice could have chosen an easier path by simply holdingthat the actions of the armed forces during combat were not justiciable. But, onthe contrary, Israel’s highest court has developed a very active view of its roleand has not refrained from exercising its jurisdiction over issues related to theconduct of hostilities and the use of weapons.4 While its judicial activism isprobably also related to the fact that the military occupation of the OPT is aprolonged situation,5 it has at the same time avoided delivering a judgement on

2 The Israeli Supreme Court, sitting as the High Court of Justice, has the authority to hear matters“in which it deems it necessary to grant relief for the sake of justice and which are not within thejurisdiction of another court”. It is competent to review the legality of decisions and acts of theState, its agencies, and the armed forces, over which it exercises exclusive jurisdiction. Theprocedure is initiated by a petition directly filed by individuals or NGOs. See Article 15(c) of theIsraeli Basic Law: the Judiciary (28 February 1984) available at: <http://www.knesset.gov.il/laws/speciaL/eng/basic8_eng.htm>. On the applicability of international law in the Israeli legal systemsee: Kretzmer (2002); Dinstein (2009).3 See for example Physicians for Human Rights v. The Commander of the IDF Forces in the WestBank, HCJ 2936/02 (2002). The petition was submitted and heard during “Operation DefensiveWall”, which took place in Jenin in 2002. For a general analysis see Kretzmer (2005, pp. 425–35);Raguan (2010). Limits have been introduced explicitly by the Court, as in the case that dealt withthe use of civilians as human shields (Adalah – the Legal Center for Arab Minority Rights in Israelv. The Military Commander of Central Command, HCJ 3799/02 (2005); in English at http://elyon1.court.gov.il/Files_ENG/02/990/037/A32/02037990.a32.htm) or, more frequently, imposed throughthe deferral technique, in which the Court leaves a margin of appreciation to the State.4 See, for example, The Targeted Killings Case that dealt with the general policy of preventativestrikes: The Public Committee against Torture in Israel et al. v. The Government of Israel et al.,HCJ 769/02 (2006), at 53 (In English at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf); or The White Phosphorus case, a petition seeking to prohibit the use ofwhite phosphorus in populated areas: Yoav Hess et al. v. Chief of Staff, HCJ 4146/11 (2013).5 As noted by Benvenisti, the need of the State to rely on courts as an agent of legitimacy andthe institutional need of the judiciary to be independent from government, take a “back seat”during short and intense crises. In contrast, when the conflict is prolonged, including in

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http://www.knesset.gov.il/laws/speciaL/eng/basic8_eng.htm

http://www.knesset.gov.il/laws/speciaL/eng/basic8_eng.htm

http://elyon1.court.gov.il/Files_ENG/02/990/037/A32/02037990.a32.htm

http://elyon1.court.gov.il/Files_ENG/02/990/037/A32/02037990.a32.htm

http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf

http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf

the legality of Israel’s settlement policy because it was seen to be a politicalquestion and therefore excluded from the Court’s scrutiny.6 However, in manyother cases, including landmark ones, the Court has performed a role thatlegitimises State action.7 This article focuses on that role.

Studies from the fields of the sociology of law and political science haveshown that one of the main functions of national courts is the granting oflegitimacy to the government and its policies.8 It has been demonstrated thatthe governing authorities seek to maintain or increase their legitimacy throughthe courts, and that courts have largely been subservient to the political sover-eign.9 According to Cotterrell, the judiciary was accorded competence to exercisejudicial review over the political branches, and at the same time the courts wereaccorded the level of independence they needed in order to be recognized inthe eyes of the public, precisely in order to provide this legitimating effect (1984,p. 232).10

In the first cases originating from the OPT, it was not evident whether theHigh Court of Justice was competent to exercise extraterritorial jurisdiction overacts committed beyond the sovereignty of the State of Israel, and whetherPalestinians would have standing before this Israeli judicial institution.11 Theofficial position of the State not to contest the High Court of Justice’s jurisdic-tion, as expressed by the State legal advisor at that time, Meir Shamgar, was tosupervise the exercise of power by the army, and to preserve the rule of law.12

situations of enduring occupation, these factors become relevant again – on the one hand, theState needs to rely on the courts as a legitimating agency through their exercise of judicialreview; and on the other, courts are more willing to review a State’s acts and to safeguard theirinstitutional independency and reputation. Benvenisti (2004b).6 Bargil v. The State of Israel, HCJ 4481/91 (1993) (challenging the legality of the settlementspolicy). For more on the “avoidance doctrines” see Benvenisti (1993, pp. 169–72).7 D. Kretzmer, supra note 2; Shamir (1990, p. 781) and Benvenisti, ibid., p. 181.8 R. Cotterrell (1984), pp. 234–45; Shapiro (1981). See also Benvenisti, supra note 6, at pp. 174;Benvenisti (2008), note 63 and accompanying text.9 Shapiro defines the role of the Courts as providing “a particular form of social control, therecruiting of support for the regime”. Shapiro, ibid., p. 297.10 Cotterrell, supra note 8, at pp. 17–28, 232–6; Franck (1992); Shamir, supra note 7, at p. 781.11 In the early cases, as no jurisdictional challenges were brought by the State as a matter ofpolicy, the High Court of Justice’s review of Israeli action in the OPT was a fait accompli. See, forexample, The Christian Society for the Holy Places v. Minister of Defense, HCJ 337/71 (1972);English summary in (1972) 2 IYHR 354) (The Christian Society case). Later, the High Court ofJustice ruled that since military commanders are public servants who belong to the executivebranch of the State and that they “fulfil public duties according to law”, they are subjected tothe constitutional jurisdiction of the Court, even if the acts were committed in the OPT. AbuHilou et al. v. Government of Israel, HCJ 302/72 (1972), at 176.12 Shamgar (1982).

Legitimating Role of the Israeli High Court of Justice 3



Yet, it also recognized its role as being driven “by the wish to intensify tiesbetween the local residents and the Israeli military system, encouraging them tohave faith in the Israeli system”.13 The interest of the State in relying on the HighCourt of Justice as a legitimating agency was probably among the factors thatled to the Court’s judicial activism and its remarkable reluctance to apply non-justiciability doctrines.

Since the early years of the occupation, Israel has promoted a settlementpolicy and encouraged Israeli Jewish citizens to live in new communities itestablished in the OPT. Over the years, the Israeli and Palestinian populationsliving in separated cities and villages, often situated side by side in the OccupiedWest Bank, have been placed under the jurisdiction of two different sets of laws.The Palestinians have been subjected to the law of military occupation14 and tothe jurisdiction of Israeli military courts.15 The Israeli settlers have beenexcluded to a large extent from this territorial legal regime, and, although livingbeyond the territorial jurisdiction of Israel, they have been subjected to a similarlegal regime as in Israel.16 The creation of this segregated legal regime in the

13 M. Negbi, Justice under Occupation: the Israeli Supreme Court versus the MilitaryOccupation in the Occupied Territories (1981), 16 cited in Benvenisti (2004). This aim was away to legitimize the policy of the government and the actions of the army in the eyes of societyand the international community, both of which are accorded great importance by the IsraeliHigh Court of Justice. See Benvenisti, supra note 6, at p. 181 and Kretzmer, supra note 2, at p. 20.See also Shamir, supra note 7, at p. 795.14 The applicable law in the West Bank is composed of several layers. The law of militaryoccupation imposes a general obligation on the occupying power to respect the law that was inforce prior to the occupation, unless absolutely prevented from doing so (Article 43 of theHague Regulations). In 1967, when Israel established a military government over the OPT, itindeed recognized the continued applicability of local law in Military Proclamation No. 2 of 7June 1967. Proclamation Regarding Law and Administration (The West Bank Area) (No. 2) –1967′ (7 June 1967), “Collection Proclamation, Orders and Appointments of the I.D.F. Command inthe West Bank Area (Hebrew and Arabic) reproduced in (1971) 1 Israel Yearbook on HumanRights. In addition, the law of military occupation authorizes the enactments of Israeli executivemilitary orders (Art. 43 of the Hague Regulations and Art. 64 of the 1949 Geneva Convention IV).Following the establishment of the Palestinian Authority under the Oslo Accords of 1995, thePalestinian Authority was granted legislative authority in certain limited areas. Moreover,certain Israeli parliamentary acts have extraterritorial effect within the OPT, and thus are alsoapplicable.15 See Yesh Din (2007) and Weill (2007).16 Weill (2011); The Report of the independent international fact-finding mission to investigatethe implications of the Israeli settlements on the civil, political, economic, social and culturalrights of the Palestinian people throughout the Occupied Palestinian Territory, including EastJerusalem, UN doc A/HRC/22/63, 7 February 2013, at p. 49: “The legal regime of segregationoperating in the [OPT] has enabled the establishment and the consolidation of the settlementsthrough the creation of a privileged legal space for settlements and settlers.” The Concluding

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OPT was indispensable in order to keep the original Palestinian populationsubordinated to military rule, denied civil rights and any democratic representa-tion, and to carry out the settlements policy of the State of Israel, as no Israeliwould have agreed to live in the settlements, unless their legal and economicconditions were similar to those that exist in Israel.

This article demonstrates through a critical analysis of case law, how theIsraeli High Court of Justice, through the selective use (and misuse) of the law ofmilitary occupation, and more specifically of Art. 43 of the 1907 HagueRegulations, not only has legitimatized the creation of a segregation regime inthe OPT but also has actively contributed to its formation by providing the Statewith the necessary legal tools required to design and implement it.

2 A normative background on the law of militaryoccupation

The rationale of the law of military occupation is that it is a temporary situa-tion.17 During this period, the occupant does not enjoy sovereign rights over theterritories it occupies and generally, unless absolutely prevented, local law thatwas applicable prior to the occupation remains in force.18 At the same time, theOccupying Power is responsible for administering the local life of the populationunder its control, maintaining it as it was prior the occupation as closely aspossible, and for providing security. For this purpose, and for the duration of theoccupation, the Occupying Power is entrusted by IHL to exercise governmental

observations of the Committee on the Elimination of Racial Discrimination from March 2012, UNDoc. CERD/C/ISR/CO/14-16, at p. 24: “The Committee is extremely concerned at the conse-quences of policies and practices which amount to de facto segregation, such as the imple-mentation by the State party in the Occupied Palestinian Territory of two entirely separate legalsystems and sets of institutions for Jewish communities grouped in illegal settlements on theone hand and Palestinian populations living in Palestinian towns and villages on the otherhand.”.17 Sassòli et al. (2011): “Its legitimate interest is to control the territory for the duration of theoccupation, i.e. until the territory is liberated by the former sovereign or transferred to thesovereignty of the occupying power under a peace treaty. IHL is neutral on jus ad bellum issuesand shows no preference for either solution, but international law tries to ensure that nomeasures are taken during the occupation which would compromise a return to the formersovereign.” Article 42 of the Hague Regulations sets that foreign “[t]erritory is consideredoccupied when it is actually placed under the authority of the hostile army.”18 See Article 43 of the Hague Regulations. As stated by Oppenheim, “there is not an atom ofsovereignty in the authority of the Occupying Power.” Oppenheim (1917, p. 364).




powers: legislative, judicial, and enforcement authority. However, in exercisingthese powers the Occupying Power should refrain from introducing changes thatcould influence the outcome of a future political settlement, as reflected, forexample, by the prohibition on the transfer of the occupying powers’ populationinto the occupied territory.19 Article 43 of the 1907 Hague Regulations, “thecornerstone of the law of occupation in the 20th century”,20 imposes a generalobligation on the Occupying Power to respect, unless absolutely necessary, thelaw that was in force prior to the occupation. This rule prevents the OccupyingPower from extending its own legal system over the occupied territories and“from acting as a sovereign legislator”.21 As a matter of principle, it limits thepower of the occupier, whose authority is of a temporary nature, and promotesthe maintenance of the status quo, while, at the same time, granting theOccupying Power the ability to introduce appropriate and limited changeswhen required. Thus the authority of the Occupying Power to legislate or tointroduce new changes is restricted to maintaining public order and civil life,and security needs.22

19 Sassòli, Bouvier and Quintin, supra note 17, at pp. 231–2; Roberts (1990, pp. 46–7); Roberts(1984, pp. 249–305). According to Sassòli: “Under Article 43 of the Hague Regulations, anoccupying power must restore and maintain public order and civil life, including public welfare,in an occupied territory. This is not a result it has to achieve, but an aim it has to pursue with allavailable proportionate means not prohibited by International Humanitarian Law (IHL) andcompatible with International Human Rights law. It may suspend the derogable provisions ofthe latter – but is not obliged to do so – if necessary for that purpose”. Sassòli (2004, p. 1)[emphasis added].20 Benvenisti, supra note 13, at p. 9. Article 43 of Convention (IV) respecting the Laws andCustoms of War on Land and its annex: Regulations concerning the Laws and Customs ofWar on Land. The Hague, 18 October 1907 (“The 1907 Hague Regulations”) states: “Theauthority of the legitimate power having in fact passed into the hands of the occupant, thelatter shall take all the measures in his power to restore, and ensure, as far as possible, publicorder and safety, while respecting, unless absolutely prevented, the laws in force in thecountry”.21 Sassòli (2005, p. 668). Article 64 (2) of the Fourth Geneva Convention provides a more detailedregulation of the authority of the Occupying Power to legislate, which is generally authorized inArticle 43. It sets out three conditions under which such legislation is authorized: For theapplication of the Convention, to maintain order, and for its own safety, when it is essential toachieve any of these conditions. Although Benvenisti notes that “the Hague Regulations werereplaced, at least with respect to the prescriptive powers of the occupant, by the new Genevarules”, he remarks that Article 43 continues to provide the legal basis for the occupant’slegislative power by scholars and national courts (Benvenisti, supra note 2, pp. 103–6).22 Schwenk (1994–1995, p. 400). The occupier’s authority consists of two elements: the author-ity to restore and ensure public order and civil life, and the authority to legislate. The term“public order and safety” as it appeared in the English version of the Article, was in facttranslated from the original French – “l’ordre et la vie publics.” As the original French text

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The authority granted by international law to the Occupying Power tointroduce new laws and changes, reflects a balance between safeguarding thestatus quo and introducing necessary new/long-term projects to ensure thecontinuity of civil life and safety.23 However, the precise scope of the authoritygranted by Article 43 is unclear. One of the main causes of its vagueness are theterms “unless absolutely prevented”, as their interpretation is based on how therole of the Occupying Power is perceived. Indeed, Article 43 has proved to be“an extremely convenient tool for the occupant: if it wished, it could intervene inpractically all aspects of life; if it was in its interest to refrain from action, itcould invoke the ‘limits’ imposed on its power”.24 The scope of interpretationgiven by scholars to these terms varies.25 It ranges from “military necessity”,26

“necessity”,27 through to “reasonable test”,28 down to, simply “sufficient justi-fication.”29 However, most authors agree that not only the interests of the army

encompasses a broader meaning, and in light of the legislative history, the English versionshould be understood as “public order and civil life.” Originally, in the Brussels Declaration, thecontent of Article 43 was formulated in two separate clauses and therefore each one should beread independently: “the ensuing of syntactic amalgamation of Brussels Articles II and III into asingle Article 43 was not designed to disturb the substantive duality of the concepts involved.”Dinstein, supra note 2, p. 90.23 The term “restore” in Article 43 refers to re-establishing the pre-occupation civilian life andsecurity conditions. This fits the concept of maintaining the status quo. At the same time,“ensure” in Article 43 indicates the future responsibility of the Occupying Power – as long as theoccupation lasts. During this period, the Occupying Power is under an obligation to guaranteethat civil life (including its social and economic dimensions) will continue. This obligation is,however, one of means and not of result, as indicated by the terms “as far as possible.” Thus,the authority granted to the Occupying Power reflects a balance required while controlling anoccupied territory, a balance between safeguarding the status quo and introducing necessarynew/long-term changes to ensure the continuity of civil life and safety. Sassòli, supra note 21, atpp. 663–4.24 Benvenisti, supra note 13, at 11.25 The academic debate on Article 43 was revived following the occupation of Iraq in 2003 by theUnited States of America and the United Kingdom. See, for instance, Sassòli, supra note 21, atpp. 661–94; Roberts (2007); Bhuta (2005) The Antinomies of Transformative Occupation’ (2005)16 EJIL 4, at pp. 735–9 and Dinstein (2004). And more recently the report of the InternationalCommittee of the Red Cross, “Occupation and other Forms of Administration of ForeignTerritory: Expert Meeting” (2012).26 Greenspan (1959); Bothe (1997).27 Dinstein, supra note 2, at p. 109. Dinstein proposed a “litmus test” to examine the sincerityof the Occupying Power’s intentions in introducing a new legislation – whether in its own legalsystem contains a similar law. Yet, as recognized by several authors, this test seems to be oflittle relevance. Benvenisti, supra note 13, at pp. 15–6; Roberts (BYIL), supra note 19, at p. 94.28 McDougal and Feliciano (1961).29 Feilchenfeld (1942).




of occupation but also those of the local population should be taken intoaccount.30

2.1 The duration of military occupation

Although the basic philosophy behind the law of military occupation is that it isa temporary situation, modern occupations have well demonstrated that “rien nedure comme le provisoire”.31 Prolonged military occupation contains specialcircumstances that cannot be ignored. The longer the occupation lasts, themore the Occupying Power would have to be involved in different aspects ofcivil life in order to maintain the welfare of the local population and to adapt toevolving circumstances. Thus, it may be obliged to introduce long-term changesto civilian infrastructure and services, and also in the local institutions dealingwith health, education, and so on. Indeed, all authors agree that “it would bewrong, and even at times illegal, to freeze the legal situation and preventadaptations when an occupation is extended”.32 As Roberts put it:

Decisions may have to be taken about such matters as road construction, higher education,water use… although they involve radical and lasting change, cannot be postponed in-definitely… Nor can the setting up of political institutions be postponed indefinitely with-out creating the theoretical possibility that the law on occupations could be so used as tohave the effect of leaving a whole population in legal and political limbo: neither entitledto citizenship of the occupying state, nor able to exercise any other political rights exceptof the most rudimentary character.33

Roberts (1990, p. 52) argues that even if lengthy occupations give rise to specialproblems and “do expose certain inadequacies in a body of law essentiallyintended for much briefer and more precarious periods of foreign militarycontrol”,34 the existing law is nevertheless flexible enough to be capable of

30 Sassòli, supra note 21, at p. 674, note 80.31 Cited in Roberts, supra note 19, at p. 47. A significant number of post-1945 occupations havelasted more than two decades, such as the occupations of Namibia by South Africa and of EastTimor by Indonesia, as well as the ongoing occupations of Northern Cyprus by Turkey and ofWestern Sahara by Morocco. The Israeli occupation of the Palestinian territories, which is thelongest occupation in history, has already entered its fifth decade.32 Benvenisti, supra note 13, at p. 147; Sassòli, supra note 21, at p. 679; Dinstein, supra note 2,at p. 120.33 Roberts, supra note 19, at p. 52.34 Thus it is commonly accepted that the law of military occupation should be adapted tocontemporary situations through the application of the existing legislation, which is sufficientlyflexible. See also: Greenwood (1992).

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being applied in situations of prolonged occupation. Dinstein (2009, p. 120)argues that in an occupation that endures for many years, the military govern-ment must be given more flexibility in the application of its legislative power.35

At the same time, the risk of abuse of a possible extension of the OccupyingPower’s authority should not be ignored.36 Roberts is well aware of the danger ofthe use and abuse of the authority, and therefore concludes that in some areasthe authority should be limited, while others it can be extended.37 As forBenvenisti (2004, p. 147), he proposes that since an extension could, in effect,“grant the occupant almost all the powers a modern sovereign governmentwould wield”, the solution of adapting to changing circumstances lies inencouraging the participation of the indigenous population and the oustedgovernment – i.e. to delegate to them as many powers as possible and to consultwith them on major initiatives that involve long-term changes.

At the heart of the debate is which is the proper interpretation that shouldbe attributed, and which, at the end of the day, is to be defined in light of thepolitical perception of the role of the Occupying Power – Should it preserve thestatus quo as a trustee, or introduce changes for the benefit of the local popula-tion/the Occupying Power’s own interests?

Where does the proper balance lie?

3 Critical analysis of the legal reasoning of theIsraeli High Court of Justice

The following part critically analysis the Israeli High Court of Justice’s jurispru-dence, aiming at exploring how the judges choose a political strategy throughthe use of seemingly neutral judicial methods and legal tools. The criticalanalysis deconstructs the pretended universalism or neutrality, and exposesthe particular politics that constitute the context in which the rulings weremade.38 The analysis of the case law which is proposed here consists of four

35 Kolb also sustains that the exception of Article 43 must be interpreted more broadly, thelonger an occupation endures. R. Kolb, Ius in Bello – Précis de Droit International des ConflitsArmés (2009), p. 186.36 Sassòli, supra note 21, at p. 674.37 Roberts, supra note 19, at p. 53.38 See Balkin (1987, pp. 743–86) and Balkin (1999). The most important use of deconstructionin the legal discipline is its use as a method of ideological critique “to reveal the termssuppressed by legal discourse; to recover the suppressed terms and re-introduce them intothe discourse.” Schlag (2005, p. 744). Deconstruction is defined as a “reading strategy” devel-oped by Derrida, “whose essential gesture is to demonstrate that every position, irrespective of




parts. It gives special attention to (1) the distinction between questions of lawand interpretation, and (2) questions of facts and fact-finding; (3) it relocates thecases within their own political context and (4) reveals the more general politicalleanings of the court that emerges through the reading of a number of rulingsand their outcome in the long run.

3.1 Interpretation: who interprets the text makes the text

Interpretation is a central feature of adjudication. While filling content intovague statutory terminology such as “necessity”, “proportionality”, “security”,and “public order”, courts introduce a certain policy choice. When courts areallocated the discretion to fill and explain the content of terms that demandinterpretation before application, each meaning given to these terms in a con-crete dispute is necessarily a political choice, or a construction.39 Adjudication ispart of a broader political project, yet, courts have not openly assumed theirpolicy role, and judicial discretion/interpretation has been understood to takeplace “within the existing law.”40 According to Kennedy, as soon as we viewadjudication as interpretation and not merely rule application “we threaten thestructure that distinguish law from politics.” 41 The process of interpretation isprior to and in service of substance. The following part examines the interpreta-tion given by the High Court of Justice to three terms: “prolonged militaryoccupation”, “security considerations” and “the welfare of the localpopulation”.

3.1.1 “Prolonged military occupation”

In the first cases rendered in the 1970s and early 1980s, the High Court of Justicewas forming the interpretation of Article 43 of the Hague Regulations, and moregenerally the role of the occupying power, within the context of a prolongedmilitary occupation – a term that first appeared in 1972, only five years after the

how coherent it seems on the surface, contains within it the means of its own self –under-mining”. “Deconstruction” in Buchanan (2010).39 Koskenniemi (2005).40 Ibid., at p. 35. “Deconstructionists regard interpretation more as a process of fabricationthan of discovery.” See Brest (1982, p. 766) and Rosenfeld (1989–1990).41 Kennedy (1985, p. 252, 1997); Brest, ibid., at p. 766 and Rosenfeld, ibid.

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occupation started.42 Looking at the judgments rendered during that period, itseems that judges its judges were shifting between a restrictive and a broadinterpretation.43 By 1982, the doctrine was set, and the development approachwas confirmed by Justice Barak in the Jami’at Ascan case.44

In the Jami’at Ascan case (1982) the Court legitimized the expropriation ofprivate Palestinian land, for the construction of a modern system of roads, onthe ground that the road planning was initiated for the benefit of the Palestinianlocal population, which used a very old road system which no longer answeredtheir current needs. More generally, in this precedent-setting ruling, JusticeBarak set the doctrine that frames the authority of Israel as the OccupyingPower in the context of its prolonged military occupation. According to JusticeBarak, the military commander is under the duty to ensure public order and civillife as a “modern and civilized state of the 20th century”.45 The military com-mander must provide for the changing needs of the local population; it shalltake “all the necessary means” required to secure “the growth, change anddevelopment” of the industry, agriculture, commerce and education as requiredby the doctrines of a welfare State.46 Thus, Justice Barak explicitly rejected thestatus quo approach, and ruled that in situations of prolonged military occupa-tion the interests of the civilian population deserve supplementary investmentsin all domains of life.

The High Court of Justice further ruled that new laws and long-term changescan be introduced for two reasons: the security needs of the Occupying Power(security consideration), and the welfare of the local population (humanitarian

42 The Christian Society case, p. 582. In Electricity Company for Jerusalem District v. Minister ofDefense, HCJ 256/72 (1972) (The First Electricity Company case) the court noted that “today, wecan not predict how prolonged the situation in the Region will be and what are the finalagreements that will end the military government” (p. 125).43 In The Christian Society case, supra note 11, and The First Electricity Company case, ibid, theCourt provided a broad interpretation to Art. 43; at the same time, in the Electricity Company forJerusalem District v. the Minister of Energy and Infrastructure et al., HCJ 351/80 (1981), a case, inwhich the issue was somewhat similar to the The First Electricity Company (both cases weredealing with the authority of the military commander to enacted an order granting the conces-sion to provide electricity in the West Bank to an Israeli company) the Court cancelled themilitary order issued, following a restrictive interpretation it gave to Article 43. For a deeperdiscussion on these cases see: Kretzmer, supra note 2, pp. 62–8.44 Jami’at Ascan al-Mu’aliman Altauniya Almahduda Almasauliya Cooperative Society v. TheMilitary Commander in the West Bank, HCJ 393/82 (1983) (Excerpted in English in 14 IYHR 301(1983) (The Jami’at Ascan case).45 The Jami’at Ascan case, ibid., at pp. 21.46 Ibid., at p. 26.




consideration).47 With this interpretation the court replaced the actual wordingof Article 43, which imposes the obligation to restore and ensure l’ordre et la viepublic, while respecting the local law, unless absolutely prevented. Thus, asnoted by Kretzmer: “being ‘absolutely prevented’ from changing local lawmeans only that the law may not be changed unless there is a need to changeit, and that the need is to be judged by the duty to endure public order and civillife.”48

3.1.2 “Security”

According to Article 43, the Occupying Power is responsible for providingsecurity in the area. Yet, instead of Article 43 as authorizing changes by theOccupying Power in the area of security, only when absolutely prevented fromrespecting existing law, the court transformed Art.43 into a provision that permitschanges for security reasons, while at the same time extending “security rea-sons” to include all kinds of situations.

At first, this term was broadly interpreted so as to include the obligation tosecure Israeli settlements, even if they were established in violation of IHL.49

While IHL clearly prohibits the transfer of the Occupying Power’s populationinto Occupied Territories, the court applied here the law in a selective manner.50

47 This interpretation is based on a famous quotation of Professor Dinstein (Y. Dinstein, “TheLegislative Power in Administered Territories” (1972) 2 TAULR 505, at p. 509), cited in all thecases, in which the court applied Article 43. See, for example, The First Electricity Companycase, supra note 44; Hass v. IDF Commander in West Bank, HCJ 10356/02 (2004), at p. 8 (TheHass case); Mara’abe et al. v. Israel Prime Minister et al., HCJ 7957/04 (2005), at p. 18 (TheMara’abe case).48 Kretzmer, supra note 2, at p. 63.49 The High Court of Justice has persistently avoided addressing the issue of the legality of thesettlements, ruling that this question is irrelevant: “It is not relevant whatsoever to this conclu-sion to examine whether this settlement activity conforms to international law…. Even if themilitary commander acted in a manner that conflicted the law of belligerent occupation at thetime he agreed to the establishment of this or that settlement – and that issue is not before us,and we shall express no opinion on it – that does not release him from his duty according to thelaw of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of theIsraeli settlers. The ensuring of the safety of Israelis present in the area is cast upon theshoulders of the military commander.” The Mara’abe case, supra note 48, at pp. 19–20.50 See Article 49(6) of the Fourth Geneva Convention 1949; Henckaerts and Doswald-Beck(2005), Rule 130. E. Benvenisti, supra note 13, pp. 140–1. Moreover, Article 85(4)(a) of 1977Additional Protocol I and Article 8(2)(b)(viii) of the 1998 Rome Statute define it as a war crime.Israel is not a party to the Rome Statute nor to Additional Protocol I. Since Palestine ratified the

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The International Court of Justice Advisory Opinion on the Israeli Wall alsorecognized that the settlement policy violates Article 49(6) of the FourthGeneva Convention, and that the measures taken to strengthen illegal settle-ments are themselves illegal (International Court of Justice’s Advisory Opinion;paragraphs 120, 122).

As a matter of routine, different needs of the settlers have been legallytranslated as a security issue. In the Court’s view, the military commander isnot protecting the security of the settlers as a mere reflection of their rights to lifeand to security, but he/she is responsible more broadly of securing the imple-mentation of the entire scope of their individual human rights. As settlers arealso citizens of a democratic State, whose individual rights must be guaranteed,the security element of Article 43, has been used as a legal tool to enable such alarge spectrum of Jewish needs (“human rights”) in the name of security. Thus,the fulfilment of the settlers’ individual rights in the OPT, a clear politicalchoice, is transformed by the Court into a question of security, which is providedby the rules of international law of military occupation. On this issue, PresidentBarak held in 2005 that:

It is not a political consideration which lies behind the fence route at the Alfei Menashe [asettlement] enclave, rather the need to protect the well-being and security of the Israelis(those in Israel and those living in Alfei Menashe, as well as those wishing to travel fromAlfei Menashe to Israel and those wishing to travel from Israel to Alfei Menashe).51

Similarly, President Beinisch stated in 2009:

We ruled many times that the freedom of movement is a basic individual right, and thatthere is a duty to put all efforts in order to ensure its exercise also in the territories held byIsrael under belligerent occupation.52

When the High Court of Justice accepted the State’s position and transformed apurely political choice into a security one, it enabled the State, through theapplication of the security element of Article 43, to carry out its settlementpolicy. If the goal is the protection of human life and not the policy of settle-ments, then the settlers could be settled within the borders of Israel,53 where

Rome Statute, the International Criminal Court could potentially exercise jurisdiction over thisissue.51 The Mara’abe case, supra note 48, at p. 101.52 Abu Safiya v. Minister of Defence, HCJ 2150/07 (2009) (The Road 443 case), at p. 3.53 On the difference between protecting individuals (which is legal), and protecting the settle-ments – which is a political choice see Kretzmer (2005). Shany (2005, p. 243).




their security is guaranteed; yet this option has never been considered, becauseits starting point, its basic axiom, is that Israelis should exercise freely theirhuman rights whether they are – inside or outside Israel’s territorial sovereignty.This position is a political choice which supports the settlement policy.

Many other cases illustrate the interpretation given to the scope of securityunder the responsibility of Occupying Power. In Hass and Bethlehem, the free-dom of movement, property rights, and freedom of religion of the Jewish settlersand the Palestinians were at issue. The Court’s eventually ruled that bothpopulations are to have equal protection of their human rights.54 At the sametime, the Court attributed a special weight to the overwhelming need of thesettlers – their security. Therefore, the initial authority to expropriate Palestinianprivate land in order to enlarge a road built exclusively to enable settlers to haveaccess to a holy place situated in the middle of a Palestinian neighbourhood wasbased on Article 43, i.e. on security reasons. Then, the restriction on the right ofmovement of the Palestinians on that road was balanced against the realizationof the right of freedom to worship of the Jewish population. This is a horizontalbalance, based on Israeli constitutional law, which is practiced in Israel in thecontext of conflicting rights between two equal rights-holding communities.55

Applying this legal test is completely irrelevant in the OPT as these two com-munities are not equal in any way: it is the minority that dominates militarily themajority and their entire legal status and set of rights are completely different.56

Further, in the case of the Palestinians, their particular set of rights are then tobe balanced against the rights of Israeli settlers who, according to IHL, areillegally residing in the OPT in the first place.

More interestingly, the “security needs” that at first were only those of thesettlers, with time were extended to include more generally all Israelis, as

54 “The inhabitants of the area have a constitutional right to freedom of religion and worship.This is the case for the Arab inhabitants and it is also the case for the Jewish inhabitants wholive there”- The Hass case, supra note 48, at p. 15; “[A]fter we have examined the nature andintensity of the violation to the freedom of movement in this case, we have reached theconclusion that the solution chosen by the respondents within the framework of the neworder does indeed guarantee the essence of the realization of the freedom of worship withoutviolating the essence of the freedom of movement. The respondent’s decision within the frame-work of the new order succeeds in preserving the “essence” of both of these two liberties ofequal weight, and this is therefore a reasonable balance that does not justify any intervention.”Municipality of Bethlehem v. Ministry of Defense, HCJ 1890/03 (2005), at p. 19 (The Bethlehemcase).55 Gross (2007, p. 19).56 Dugard and Reynolds (2013); Tilley (2012); Ben-Naftali et al. (2005).

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illustrated by the case Road 443 (2009).57 Road 443 is the most important trafficroute connecting the centre of Israel to Jerusalem. Although it is built mostly inthe West Bank, it is estimated that the majority of the 40,000 drivers which useroad 443 each day are Israelis residing in Israel.58 According to the High Court ofJustice, the freedom of movement of Israelis (not residents in the OPT) on Road443 must be guaranteed by the military commander as a security matter:

[T]he population that had been using Road 443 [include]… Israeli citizens who are not residingin the Region, but have been using this road as a traffic route from the centre of Israel toJerusalem. The obligation of the military commander to guarantee public order and safetyunder Article 43 of the Hague Regulations is broad. It does not protect only “protectedpersons”, but all the population present in the Region in any given time, including Israelicommunities’ residents and Israeli citizens who do not reside in the Occupied Territories.59

Thus, the High Court of Justice ruled that Israeli citizens are entitled to move withinthe OPT freely. In the exercise of their individual liberties, the military commanderis under the obligation, according to Article 43, to ensure their security. For thatpurpose, the freedom of movement of the Palestinians may be limited in a propor-tional way.60 The general context of the occupation and the preliminary question ofthe legitimacy of Israel’s use of the resources of the occupied land is completelyabsent from the ruling, although this issue was raised by the petitioners.61 Whilethe High Court of Justice ruled that Israeli freedom of movement in the OPT has tobe guaranteed, it in fact recognized that the Israeli population has the right tobenefit from OPT resources.62 Despite the fact the fulfilment of Israeli’s right shall

57 Road 443 was constructed on land expropriated in 1982 (See the Jami’at Ascan case, supranote 45) – an expropriation that was legitimized by the Court on the ground that the roadplanning was initiated for the benefit of the Palestinian local population. Contrary to suchaltruistic reasons, as mentioned below, today this road is largely used by Israelis residing inIsrael as opposed to Palestinians.58 The Association for Civil Rights in Israel, Route 443: Fact Sheet and Timeline, May 2010Available at http://www.acri.org.il/en/2010/05/25/route-443-fact-sheet-and-timeline/59 The Road 443 case, supra note 54, at p. 20.60 Ibid., at p. 3 (Opinion of President Beinish) and at pp. 27–36 of the majority opinion (JusticeU. Vogelman).61 See the paragraphs 148–57 of the petition, 2 March 2008 (on file with the author), claimingthat there is no legal basis for Israeli citizens residing in Israel to claim a right to exercise theirindividual liberties – such as their freedom of movement – beyond the territorial jurisdiction ofthe State of Israel.62 Not only that the right of the occupying power’s population to use the resources of the OT isnot explicitly provided by any legal source, granting that right would violate the basic premisesof Arts. 55 (authorizing the occupying power to administrate the resources of the OT as ausufruct) and 43 of the Hague Regulations (See O. Ben-Naftali, A. Gross and K. Michaeli, infra,note 68).




http://www.acri.org.il/en/2010/05/25/route-443-fact-sheet-and-timeline/

be balanced with the right of the Palestinians to use that road in the name ofsecurity, the military commander’s own balance resulted in a total ban onPalestinian use of that road for almost a decade.63

Ironically, while most of the land on which roads in the OPT were built wereexpropriated for security reasons in order to protect the settlers, once constructedthey became a security threat to the State of Israel itself. Palestinian cars using aroad connecting the West Bank to Israel may be used by terrorists, thus, themilitary commander now has to consider the “fear of infiltration of terrorists toIsrael as a result of traffic of Palestinian cars on the road”.64 The solution to thisthreat, in the long run, has been to restrict Palestinian presence into defined andclosed zones. Once the land is expropriated for settlement construction or forpaving settler-only roads, then, for security reasons, Palestinian access to thesezones is restricted or entirely prohibited by military orders or via a physical barrier,or in some cases by both. Thus, for the sake of the security of the settlers,Palestinians have been slowly limited to living in delimited and closed areas,their freedom of movement in the West Bank thereby becoming very restricted.65

3.1.3 The “welfare of the local population”

According to the Court, the second legitimate consideration according to whichthe Occupying Power may introduce new laws and other changes is “the welfareof the local population” (the humanitarian aspect of Art. 43). In 1972, the HighCourt of Justice ruled that “the residents of Kiryat Arba [a settlement] should beregarded as having been added to the local population.”66 Consequently, the“humanitarian element” of Article 43 became a mechanism by which to protectthe interests of the occupiers and not just the interests of the occupied popula-tion as it was originally designed and intended.67

63 Military Order on Traffic (Road 443) (West Bank) – 2008 (19 June 2008) (on file with theauthor).64 The Road 443 case, supra note 54, at p. 23.65 As of September 2012, 542 obstacles, including roadblocks and checkpoints, obstructPalestinian movement in the West Bank. UNOCHA, “West Bank: Movement and AccessUpdate” (September 2012).66 The First Electricity Company case, supra note 44, at p. 138.67 As IHL prohibits the transfer of the Occupying Power’s population into occupied territories,the same corpus of law cannot be used to administer the very same population. See also Ben-Naftali et al. (2005, p. 588):

“in as much as the legal structure of the [Israeli] occupation regime is designed to – and infact does – serve the interests of the settlers at the expense of the interests of the occupiedpopulation, it breaches the obligations of the occupant under Article 43 of the 1907 Fourth

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This ruling provided for the first time a legal basis to administer the illegalpresence of the settlers. Since then, in the extensive jurisprudence of the HighCourt of Justice, the local population or the population of the Region has beenconstantly interpreted as including the Jewish settlers. That interpretation hastwo implications. First, it subverts the equilibrium of Article 43, which wasintroduced in order to balance the humanitarian needs (of the occupied people)with security considerations (of the occupying forces). The interest of the origi-nal local population is now restricted not only by the endless security concernsof the Israeli army and the State of Israel, but, in addition, also by (a broaddefinition of) the well-being of the Jewish settlers.

Second, and more far reaching, in 1972 the High Court of Justice provided theState with a legal tool to administer the settlers. The State was given the authority,through the arm of the military commander, to issue the legislation required toprovide the settlers with an Israeli environment within the OPT – in the form ofmilitary orders. By ignoring the illegality of the settlements, and ruling that thesettlers are a part of the local population for the purpose of Art. 43, the High Courtof Justice subjected them to that article’s regime, which authorizes the introductionof military legislation for their benefit. This legislation could be implementedwithout any need to officially annex the land (and more critically, its nativepeople) in order to facilitate the lives of the Israeli settlers there.68 The HighCourt of Justice has enabled this to be done through IHL, i.e. via military orders.

Hague Convention, thus violating the basic tenet of trust inherent in the law of occupation”.More generally see Sassòli on the “the risk of abuse that exists”: “Article 43 was adoptedoriginally under the influence of weaker countries that were more susceptible to occupationand thus wished to oblige likely occupants to take care of the civilian population. However,… the practice of occupants during the two World Wars have led to the concern thatoccupying powers invoke their obligation to restore civil life to justify a broad use oflegislative powers, thus reversing the original aim of this norm”. Sassòli, supra note 19, p. 15

68 Although the law of military occupation prohibits the transfer of the Occupying Power’spopulation into the occupied territories, supra notes 51–3, the High Court of Justice haspersistently avoided addressing this issue (See supra, note 48). Annexation is illegal underinternational law. Article 2(4) of the United Nations Charter sets that territorial acquisitionresulting from the threat or use of force is illegal. The “Declaration on Principles ofInternational Law concerning Friendly Relations and Co-operation among States in accordancewith the Charter of the United Nations” declares that “no territorial acquisition resulting fromthe threat or use of force shall be recognized as legal.” (UN Doc. A/RES/2625(XXV), 1970). Inaddition, the International Court of Justice recognized that “the principle of non annexation” isa customary rule. See International Status of South West Africa, ICJ Rep 1950, at p. 131; AdvisoryOpinion on the Wall, supra note 52, at p. 70, 87. As for jus in bello, Art. 43 of the HagueRegulations makes it clear that it does not confer any sovereign right, and Article 47 of theFourth Geneva Convention states that, in cases of annexations, the rights of the protectedpersons provided by the Convention remain intact. See also Ben-Naftali et al. (2005, pp. 571–4).




These enactments have been used to address the everyday needs of Israeli settlerover the following 40 years, until today.69

3.2 Fact finding: the politics of establishing the facts

Presumptions, burden of proof, and other general rules may serve as tools toachieve policy goals through factual determinations.70 Deconstructing the wayfacts are established suggests that courts, far from being always revealers of thetruth, may in fact serve as an accomplice with the State in the portrayal of reality.Unlike when adjudicating two private sides, in judicial review cases the courts donot assess where the predominance of evidence lies. Instead, the State’s version ofthe facts is given special weight because of presumptions such as honesty, goodfaith, and the integrity afforded to State officials, which assume that the theirfactual claims are true. In practice, this puts claimants at a disadvantage, as it isextremely difficult to prove that decisions were made in an arbitrary manner, asStates are most often in an excellent position to conceal the facts of their misdeedsfrom courts and, unlike the claimants, also possess all the resources necessary todo so. Coupled with the more general assumption that supposes that the judi-ciary’s lack of expertise prevents it from intervening in a decision that was takenfollowing the professional authority’s assessment as long as it was guided byreasonable considerations, means that such decisions are likely to be upheld.

The following part deconstructs the process of establishing facts by theCourt, and its use of two legal tests: the “dominant factor test” and the “pro-portionality test”.

3.1.4 The dominant factor test

While the military commander may not be guided by national, economic orsocial interests of his own country alone in order to introduce changes accordingto Art. 43, the High Court of Justice has ruled that these can be secondaryconsiderations. To reveal whether the military government acted for securityreasons or for the welfare of the local population, the court established thedominant factor test: as long as the security concerns or the welfare of the localpopulation represent the dominant consideration behind the act of the

69 For further discussion see below.70 Shapiro, supra note 8, at p. 42.

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authority, even if other considerations have been also taken in account, thensuch actions are deemed to be intra vires.71

How does the court detect which consideration is the dominant one? This isa fact-finding issue that involves an assessment of the evidence. When securityconcerns are raised, the High Court of Justice, as a matter of principle, attributesspecial weight to the claims of the State and of the armed forces. The presump-tion is that they are acting in good faith:

We have no reason not to give this testimony less than full weight, and we have no reasonnot to believe the sincerity of the military commander…our long-held view is that we mustgrant special weight to the military opinion of the official who is responsible for security.72

Another related practice is that the Court does not replace the State’s profes-sional assessment. Thus, as a rule, in a dispute on military questions where thecourt has no expertise of its own, the court will give considerable weight to theprofessional opinion of the military authorities, on the notion that they have therelevant professional expertise and the responsibility for security.73 As theintentions presented by the State are difficult to challenge as a matter ofevidence, and given that the versions of the facts presented by State agenciesare attributed a greater weight through the presumption that they tell the truth,it becomes almost impossible in practice to challenge the State’s assertions.

Moreover, the dominant factor test allows political objectives to be consid-ered, as long as they are secondary or collateral. With the legal evidentiarypresumptions in favour of the State, it has not been too difficult to legitimise theso called secondary objectives of the States. In almost all cases in which thedominant factor was examined, the Court’s conclusion was that the main con-sideration of the authorities was not based on political but rather on security

71 The Jami’at Ascan case, supra note 45, at p. 5: “Although at the heart of the project lies theinterest of the local population, the defendants do not ignore the fact that the planning projectis linked to Israel, and represent a common project. It will serve not only the population of theRegion, but also the Israeli residents and the traffic between Judea and Samaria and Israel…”.See also, infra note 76.72 Beit Zourik Village Council v The Government of Israel, HCJ 2056/04 (2004) (The Beit Sourikcase), at p. 28, 47. See also The Jami’at Ascan case, supra note 45 at paragraph 14: “Concerningthe facts, we have no reason to doubt the position of the State… the planning was a professionalone, which considered the needs of the area and not only Israel’s needs.”73 The Bethlehem case, supra note 56, at p. 19; Duikat v. Government of Israel, HCJ 390/79(1979), at p. 10 (English summary in (1979) 9 IYHR, at p. 345): The Elon Moreh Case; Ajuri v. TheCommander of IDF Forces in the West Bank, HCJ 7015/02 (2002), at p. 375; The Hass case, supranote 48, at p. 458.




concerns74 − even in the Road 443 case (2009). That case dealt with the sameroad which was built on expropriated land that was legitimized by the HighCourt of Justice in the Jami’at Ascan case in the 1980s, on the basis of theconsideration that the dominant factor in its construction was the benefit of thelocal population. In that case, the Court had stated that:

The transportation needs of the local population have increased. The conditions of theroads must not be kept frozen. Therefore, the military government was authorized to makea roads planning that considers actual and future developments… the fact that thisplanning was done in collaboration with Israeli authorities is not illegal, as long as itwas done [where the dominant consideration was] for the benefit of the local population.75

In that time Justice Barak did not doubt the sincerity of the State’s position:

The military administration is not authorized to plan and build road systems in areas thatare in military custody, if these are nothing other than a “service path” to the sovereigncountry… our conclusion – which we have reached without reservation or doubt – is thatIsrael’s considerations and [Israeli] civilian needs were not at the basis of the road plan.76

Yet, as Dinstein predicted at that time, “professed humanitarian concern maycamouflage a hidden agenda” (2009, p. 122).77 Yet, the political intentions of theState in the 1980s to build highways that would integrate the West Bank andIsrael were not a hidden agenda. Settlements cannot exist in isolation – they

74 According to the author’s knowledge, the Court rejected the position of the State two times.In the Elon More case (1979), supra note 74, the political intentions of the State were exposedalmost despite it: the settlers were part of the proceedings and they declared that the settlementwas built for ideological reasons and not for security ones. In 2006, in a petition that challengedthe route of the Wall near the settlement Zufin, the petitioners succeed to prove, that the routeof the Wall in this specific segment was planned not because of security considerations, asclaimed by the State, but in order to allow its future expansion (http://www.btselem.org/download/zufin_eng.pdf) – a consideration which was concealed by the State during theproceedings: “The petition before us revealed a grave phenomenon. The Supreme Court wasnot presented with a complete picture… we can not tolerate, whereby information given to thecourt does not reflect all the considerations taken into account by the decision-makers.” (Headof the ‘Azzun City Council et al. v. Government of Israel et al., HCJ 2732/05 (2006), paragraph 7).For more details on this case in English see: http://www.hamoked.org/Document.aspx?dID=215_update75 The Jami’at Ascan case, supra note 45, at p. 36.76 The Jami’at Ascan case, supra note 45, at pp. 13–4.77 See also Dinstein, supra note 48, at p. 511. See also how the legal issue in the Jami’at Ascancase was phrased: “Can an occupier create permanent facts on the ground, which can provokefears of a “length annexation” by linking transportation routes of the occupied territory totraffic routes in the occupying country”, at Dinstein, “The Maintenance of Public Order and Lifein the Administered Territories” (1984) 10 Tel Aviv Law Review 405, p. 409 (in Hebrew).

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http://www.btselem.org/download/zufin_eng.pdf

http://www.btselem.org/download/zufin_eng.pdf

http://www.hamoked.org/Document.aspx?dID=215_update

http://www.hamoked.org/Document.aspx?dID=215_update

need to be connected to each other and to Israel.78 And indeed, Road 443 hasnow become a major traffic route connecting the cities of Tel Aviv andJerusalem. To make things worse, when the case of Road 443 was broughtagain to court in 2009, Palestinian cars had been completely prevented fromusing that road for almost a decade (the very same road for which Palestinianland was expropriated 25 years earlier for the supposed purpose of serving theirinterests). Road 443 became an Israeli-only road,79 a situation that is common tomany other roads in the OPT. Yet, when it was asked to decide on the com-plaints filed by Palestinians, the High Court of Justice demonstrated not to beprepared to see this situation as a consequence of a political decision andinsisted that the decision was based on security considerations:

We do not have a reason to doubt the position of the military commander according towhich he exercised its authority for security considerations, based on his responsibility toensure security and order.80

78 See for example the explanation to a plan for highways prepared by the World ZionistOrganization cited in D. Kretzmer, supra note 2, p. 94. In 2007 the UN reported: A network of1,661 km of roads links settlements, military areas and other infrastructure in the West Bankwith Israel. Some roads have been newly built, while others have resulted from upgrading pre-existing primary roads. Via these roads Israelis move freely between the West Bank settlementsand Israel. Palestinian access on to this network is restricted by a closure regime consisting ofapproximately 85 checkpoints, 460 roadblocks and a permit system for Palestinian vehicles…these measures have enforced the status of certain West Bank roads as almost exclusively forIsraeli/settler use, thereby, creating a “sterile” traffic flow for Israelis. United Nations, Office forthe Coordination of Humanitarian Affairs, The Humanitarian Impact on Palestinians of IsraeliSettlements and Other Infrastructure in the West Bank (July 2007), p. 58. For a detailed map onthe “Roads primarily for Israeli use”, see p. 59.79 In the wake of the Second Intifada in 2000, following several attacks on Israeli vehicles,Palestinians were increasingly prevented from using this road for security reasons. By 2002 theprohibition had become absolute, and road 443 was turned into an “Israelis-only road” throughde facto physical obstacles – iron gates, concrete blocks, or checkpoints – and then through amilitary order. “‘I made Route 443 an Israelis-only road… I ordered all the exits servingPalestinians to be barricaded’” IDF commander of the Ramallah region, Colonel Gal Hirsch,cited in O. Shelah and R. Drucker, Boomerang – the Failure of Leadership in the Second Intifada(2005), 31. The absolute ban on travel for Palestinian vehicles became official in August 2007through the issuance of a military order. See Security Provisions Order No. 378 (West Bank) –1970, Order concerning transportation and traffic (Road 443) (West Bank) 2007, 28 April 2007.The order was in force for one year and was then extended. Interestingly, the military order wasissued only after the petition of the Association of Civil Rights in Israel was filed.80 The Road 443 case, supra note 54, at p. 26. On the merits the court ruled that the militarycommander exceed his authority (which was exercised for security reasons) because of theresult of the decision (and not because of its nature). As the total ban led to a situation in whichthe road served only the occupying force’s population – a situation that could not be approved




The interval of more than 25 years between Jami’at Ascan and Road 443,provides a unique illustration of the result of the Court’s jurisprudence in thelong run. With the dominant factor test the High Court of Justice can adopt theState’s position, without having to completely camouflage the too obviouspolitical aims. The High Court of Justice did not need to establish that thepolitical aims were absent – just that these were not the dominant ones.

3.1.5 The proportionality test

After legitimating the authority of the Occupying Power in light of Art. 43 theHigh Court of Justice applies the proportionality test, in order to determinewhether that authority was legally exercised according to Israeli administrativelaw.81 The proportionality test enabled the court to provide remedies toPalestinian individuals in extreme cases without having to challenge the entirepolicy, as the Wall cases well illustrate. At first, the Court established that theconstruction of the Wall was framed, at least in principle, within the scope of theauthority of the military commander, as authorized by Article 43, on the basis ofits being constructed for security reasons (based on the assessment that thecourt had no reason to doubt the sincerity of the military commander, despitethe fact that “the debate in Israel clearly demonstrate that the government didindeed have political intention in setting the barrier’s route”82). Then, the HighCourt of Justice reviewed specific segments of the Wall, in light of the propor-tionality test. While the High Court of Justice was ready to annul segments of theWall when the authority of the commander was not exercised in a proportionatemanner, it did not reveal or investigate the political intention that stood behindthe Wall as a whole. Thus, while each segment of the Wall, stripped from itsentire context, is reviewed, the political intention of the de facto annexation iseasier to ignore.83 With respect to the proportionality test, two further pointsneed to be highlighted.

in the initial expropriation in the 1980s – the authority to issue a total ban was unlawful. Whilethe dominant factor test appears fine, the court declared the action as unlawful as a result of adifferent test – the “result” test, which appeared in the court’s jurisprudence for the first time inthis case.81 For a definition of the proportionality test consisting of three elements, see The Mara’abecase, supra note 48, at p. 30; The Beit Sourik case, supra note 73, at pp. 40–1.82 Kretzmer, supra note 55, p. 92. See also Shany, supra note 55, p. 243.83 A general petition on the legality of the Wall was pending before the Court. Yet, the courtdecided to examine only the legality of segments of the Wall. See S. Arieli and M. Sfard, TheWall of Folly (2008), at pp. 157–60.

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3.1.6 The political choices of the proportionality test

The selection of the facts that will be included the proportionality test is apolitical choice of the court. That construction will necessarily influence theoutcome of the balance and general narrative of the court. The Mara’abe case(2005) that dealt with the legality of the Wall around the settlement of AlfeiMenache clearly illustrates that the balance test is a policy choice as a matter offact-finding. The importance of that landmark ruling lies in its timing: it was thefirst case delivered after the International Court of Justice’s Advisory Opinion onthe Wall.84 Unlike the International Court of Justice, the Israeli High Court ofJustice found that the military commander has the authority to build a wallaccording to Article 43, as it was undertaken for security reasons. At the sametime, it ruled that the route chosen in that specific area was illegal, as it was notproportional. President Barak provides an extensive analysis of the differentopinions of both courts (the International Court of Justice’s and the IsraeliHigh Court of Justice) and attempts to explain their origin noting that “thedifference between the factual bases upon which the courts relied is of decisivesignificance.”85 This sentence could not be formulated any better. Indeed, it isnecessary to go back to the facts and, more precisely, to examine which of thesefacts were put into the proportionality balance and which were excluded.

The settlement of Alfei Menashe, which has a population of approximately5,700, is situated a few kilometres east of the Green Line, close to the Palestiniancity of Qalqiliya (with a population of approximately 40,000). The Wall in thearea surrounds the settlement and created three enclaves: the Qalqiliya enclavein the north; the Habla enclave to the south; and five Palestinian villages with atotal population of approximately 1,200, trapped within the Israeli side of thesettlement. A close look at the map from 2003 (the date of the petition), revealsthat for the protection of Alfei Menashe and its 5,700 settlers together with itsconnecting road to Israel, a city of more than 40,000 people, which is entirelysituated in the West Bank, became totally encircled by a eight-metre high walland a 50-metre wide barbed-wire fence.

The High Court of Justice opened its judgment by finding that the security ofthe settlers in Alfei Menashe and their freedom of movement justified the construc-tion of the wall, as a measure taken under Article 43. “It is not a political

84 The International Court of Justice found that the military commander has no authority tobuild the Wall in the route chosen as it amounts to de facto annexation (political consideration),and as it aims at protecting the settlements which are illegal. The Advisory Opinion on the Wall,paragraph 120–2.85 The Mara’abe case, supra note 48, paragraph 68.




consideration which lies behind the fence route at the Alfei Menashe enclave”stated the court, “rather the need to protect the well being and security of theIsraelis”.86 In this case, it meant that the “well being and security of the Israelis”was achieved through a severe restriction on the right of movement of more than40,000 Palestinians in the city of Qalqilya and the other surrounding villages.Indeed, even to a lay observer, this appears to be a disproportionate decision. And,indeed, the High Court of Justice found it to be disproportionate. Yet, as surprising

86 Ibid., at p. 101.

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as it may appear from a simple look of the map, the court’s finding, whichstrengthened its reputation as an independent judicial institution after theAdvisory Opinion of the International Court of Justice, dealt merely with an almostinsignificant part of the route of the wall, where five small Palestinian villages (atotal of 1,200 inhabitants) were trapped within “the Israeli side” of the wall.However, the city of Qalqilya and its 40,000 inhabitants were not included inthe proportionality test of the High Court of Justice. The balance test wasconducted between the settlement of Alfei Menshe (5,700 inhabitants) andthe five small Palestinian villages (1,200 inhabitants). A more accuratedescription of the facts would dictate a different balance: can the mobilityof a small number of settlers be guaranteed by the encirclement of more than40,000 persons in the Palestinian city of Qalqilya behind an eight-metre wall,which has only one exit controlled by the army, and which imposes severerestrictions on the right of movement and other related rights? This factualreality remained camouflaged and unaddressed throughout the court’s rea-soning. Moreover, the court’s remedy – to move the wall’s route in a specificsouthern segment in order to relocate 5 small Palestinian villages which werealready abandoned so that they fell within the “Palestinian side” of the wall –had a negligible impact on the ground. At the same time, the encirclement inthe West Bank of a Palestinian city of 40,000 people, absent from theproportionality test, became indirectly legitimized by the court. This factwas simply not put into President Barak’s balancing test.

3.1.7 Qalqiliya : High Court of Justice v. United Nations

However, as astonishing it may be, the situation in Qalqiliya is not absent fromthe Court’s ruling. It is described in detail, just not in the sections “relevant” tothe case. The story of Qalqiliya appears as obiter, under a section of the rulingentitled “The Advisory Opinion of the International Court of Justice at the Hagueand The Beit Sourik Case.” Here, the High Court of Justice cited parts of the UNreports written by Professors Dugard and Ziegler, which were among the docu-ments that constituted part of the factual basis for the International Court ofJustice’s ruling.87 President Barak’s aim was to show how the two courts had two

87 The Mara’abe case, supra note 48, at p. 40: “The report states that the Palestinians living inthe enclaves are facing some of the harshest consequences of the barrier’s construction androute. Thus, for example, the city of Qalqiliya is encircled by the barrier with entrance and exitpossible from one gate only. Thus the town is isolated from almost all its agricultural land. Thevillages surrounding it are separated from their markets and services.” At paragraph 45: “[A]




different fact-finding processes. Among other examples provided by the court,Qalqiliya appears. Thus, Qalqiliya is not portrayed in this ruling as a relevantfact of the actual petition before the Court, but in obiter, where the Courtattempted to illustrate that the facts that lay before the International Court ofJustice were lacking the security lens.88

The fact that such an extreme situation as the Qalqiliya enclave could beindirectly legitimized while ruling on the disproportionality of a negligible partof the wall is also related to the legal procedure: the petitioners in this case werethese five small villages trapped in the Israeli side. Therefore, the court couldignore the northern Qalqiliya enclave, under the guise that it was not directly atissue in the Mara’be case before it and thus not a relevant fact. This situationshows how human rights lawyers come to doubt whether petitioning theHigh Court of Justice serves more the interest of the State, even when they wintheir cases.89

3.1.8 The structural bias of the proportionality test

The structural bias of the proportionality test manifests itself in two ways. First,the Israelis are perceived as citizens of a democratic state, whose social andpolitical rights should be guaranteed at the level of a developed States. On theother hands, the Palestinians are viewed as an occupied, native people, who aredeprived of civil rights, and whose minimum humanitarian needs should beprovided. Thus, the Jewish residents of Alfei Menashe should have all kinds ofrights protected by the State including freedom of movement, property, socialrights, and so on. The rights of Palestinians, on the other hand, are viewedthrough the prism of occupation and as an occupied people subordinated to thegrant of rights by an occupying army. This is why the restriction on the freedomof movement of thousands of Palestinians becomes not only possible but alsoproportional.

lmost completely imprisoned by the winding route of the wall, including 40,000 residents ofQalqiliya.”88 President Barak simply explained that: “It was not mentioned that Qalqiliya lies two kilo-meters from the Israeli city of Kfar Saba; that Qalqiliya served as a passage point to Israel forsuicide bomber terrorists, primarily in the years 2002–2003, for the purpose of committingterrorist attacks inside of Israel; the Trans-Israel highway (highway 6) [built beyond the greenline] whose users must be protected, passes right by the city.” The Mara’be case, supra note 48,at p. 68.89 Sfard (2009, pp. 37–50); Al-Haq, “Legitimising the Illegitimate?” (2010), note 106 andaccompanying text.

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Second, in all proportionality balances there is an implicit bias, an implicitprinciple, according to which the protection of the rights of Israelis represent thepriority for Israeli courts. In this way, the equilibrium of the balance is shifted sothat they prevail over another population. Otherwise, we could imagine the bal-ance being done the other way round. Yet, because of this inherent bias, changingthe balance for the benefit of another population is not likely to happen.90

This inherent bias is well present in the Road 443 case (2009), where theproportionality test was framed around the question whether the freedom ofmovement and the military need to secure Israelis use of the road, could beachieved in a less draconian way than imposing a total ban on Palestinian use.In other words, the Court asked itself whether the commander could achieve thesame security need, that of guaranteeing that thousands of Israelis driverswould continue to use that road on a daily basis in total security, in anotherway?91 Thus, it is only the right of movement of the Palestinians, which had adirect impact on their possibilities to have education, health, and access towork, as described in the ruling itself, which is to be restricted in the balancing.The proportionality test does not consider limiting the Israeli use of the OPTresources, namely, road 443.92

3.3 Relocating legal disputes into their political environmentand revealing the Court’s character in the long run

Generally, courts tend to strip cases out from their political environment. Acomplex reality that involves a matrix of political actors and interests is reducedinto the distant courtroom to a calculated selection and evaluation of evidence andfacts, which are taken out of any broader context of power relationships, and

90 Consider the following thought experiment: would the court find proportional to imposeheavy restrictions on the right of movement of 40,000 Israelis in order to secure the movementof 5,700 Palestinians? Even to limit the movement of 5,700 Israeli settlers in order to guaranteeof movement of 40,000 Palestinians does not seem feasible in the present circumstances.91 The Road 443 case, supra note 54, at p. 36.92 The remedy delivered by the Court and its implementation only serves to reinforce thisobservation. The High Court of Justice deferred to the military commander the responsibility tofind another proportionate solution, which enables him to keep the situation essentially intact,at least de facto. The judgment came into effect five months from the date it was given, in orderto allow the military commander to determine the necessary security arrangements, whileleaving him a wide margin of discretion. See Harel, “Despite Court Ruling, Palestinian Use ofRoute 443 Likely to be Limited”, Haaretz, 10 May 2010 and ACRI, “Route 443: Fact Sheet andTimeline”.




transformed into an anonymous dispute on which so-called neutral legal codes areapplied. However, there is nothing more misleading than this artificial perception.Legal decisions are not “an independent or isolated event but an integral part of apolitical process in which many agencies interact with one another.”93

Courts render their decisions on a case-by-case basis, and refrain in mostinstances from imposing general policies. This makes their political impactusually barely visible. Therefore, once the legal decision is deconstructed andrelocated within its own particular political context, it is necessary to decryptthe more general political line of the court by reading together differentdecisions and observing the court’s policy over the long term. In this way, itis not the rare landmark cases that will indicate the court’s function, ratherthe opposite. It is its routine work over the long run that will reveal its truecharacter.

3.3.1 Political de-contextualization

The Palestinians are rarely described as a national group. The term Palestiniansis in most cases used to describe individuals who committed terror attacks. BothPalestinians in the OPT and the ones who became Israeli citizens in 1948 arelabelled Arab, while the settlers are referred to as Israeli or Jewish:

The Hague Convention authorizes the area commander … to ensure the needs of the localpopulation in the area under belligerent occupation. The local population for this purposeincludes both the Arab and Israeli inhabitants.94

[The] respondent has the duty to defend the population – Arab and Jewish – in theterritory under his military control.95

The “utopian” situation, before the outbreak of the second intifada and theterror attacks that were committed during it, was described by Judge Levy as asituation of sharing:

Previously, the benefit of road 443 was shared by Israelis and Palestinians altogether.Palestinian cars were using that road for long years… no apartheid nor segregation existedbut a situation of sharing [emphasis added].96

93 Shapiro and Stone Sweet (2002).94 The Hass case, supra note 48, at p. 8.95 Gusin v. The Commander of IDF Forces in the Gaza Strip, HCJ 4219/02 (2002), at p. 611.96 The Road 443 case, supra note 54, at p. 3 (Dissenting opinion Justice Levy). Yet, it must berecalled that the citizens of the Occupying Power have no rights in sharing the resources of an

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The de-stigmatization of settlers into Jewish and the de-nationalization of thePalestinians into Arabs strips them from the political and legal context of theoccupation. The two national groups, the occupied and the occupiers, living inthe same place become as a consequences equal. Jews and Arabs are supposedlyentitled to the same treatment:

we have reached the conclusion that the solution chosen by the respondents within theframework of the new order does indeed guarantee the essence of the realization of thefreedom of worship [of the settlers] without violating the essence of the freedom of move-ment [of the Palestinians]. The respondent’s decision within the framework of the neworder succeeds in preserving the “essence” of both of these two liberties of equal weight,and this is therefore a reasonable balance that does not justify any intervention.97

Yet there is no bigger illusion than this. The legal status of Israeli settlers in theOPT and of the Palestinians is not equal in any way, and IHL was never intendedto protect a community the presence of which is illegal or to allow theirlegitimization by the invocation of IHL either by the State or by its Courts.

3.3.2 In the long run: segregate legislation

The High Court of Justice’s interpretation of Article 43, according to which thesettlers make up a part of the local population of the occupied territories,effectively introduced two “local populations”, the occupied and the colonizers,and opened the door to installing two set of laws over two separated popula-tions. The desired conditions for the Jewish settler population, in accordancewith the political and economic norms of the Western world, required a com-pletely different set of laws, while the Palestinians, as an occupied population,could stay deprived of any civil rights. Thus, through the use of the law ofmilitary occupation, the Palestinian population could be kept under a militaryregime without any civil rights, while, on the other hand, through the misuseand a selective application of the same law, distinct legislation could be createdthat only applies to Israeli settlers.

By providing this interpretation as early as 1972,98 the High Court of Justicehas conferred upon the State an effective legal tool that has enabled it to carryout its settlement policy through the creation of a distinct legal environment forthe settlers. Without this, Israeli citizens would have been discouraged from

occupied territory. See supra, notes 62–3. Such a “right” is not granted by the law of militaryoccupation, and is an outcome of a colonial regime.97 The Bethlehem case, supra note 56, at p. 19.98 Supra, note 43.




living in settlements since the legal regime that was applied to the Palestinians(i.e. the law of belligerent occupation, pre-Israeli occupation Jordanian/British/Ottoman law, and Israeli military orders) is fundamentally different than thatwhich exists in Israel.

Different legal methods have been employed by different legal institutions toprovide the settlers with a legal environment and living conditions similar to thosein Israel, without amounting to a de jure annexation of the land, and moreimportantly, of four million Palestinians. Some of these sophisticated legal man-oeuvres exclude Jewish settlers from the applicable territorial legal regime in theOPT. For example, Israeli nationals are excluded from the jurisdiction of themilitary courts, and consequently, from the military criminal code and rules ofprocedure that would otherwise apply in the territory.99 At the same time, the HighCourt of Justice has insisted on including the settlers as a part of the territorial localpopulation. This was done in order to subject them to the regime of Article 43,which authorizes the introduction of military legislation “for the benefit of thelocal population”. This kind of legislation became one of the main legal methodsto provide the settlers in the OPT with an Israeli-style legal environment.100

Thus, the military legislation enacted for the settlements and the settlersregulated their legal environment in a way to match Israel as many of these orderssimply incorporated Israeli legislation.101 A separate administration was establishedthrough local and regional councils.102 The settlements also had their own courts.Through the extension of the jurisdiction of the Court of Domestic Affairs in 1983 bya military order,103 these became competent to apply 29 Israeli laws, regulations ofthe military authorities concerning the administration of the local council, andregulations enacted by the council. In addition, Rabbinical Courts were establishedby military order 981 from April 1982 to regulate the personal status of the Jewishpopulation. Many other military enactments deal with the needs of everyday life,which could not be provided for through the extraterritorial application of theentire corpus of Israeli law. Yet, as these orders are not regularly published in

99 This was done through a policy directed from the Ministry of Justice. Weill, supra note 16, atpp. 136, 140–1.100 Rubinstein (1988, pp. 77–8); Shehadeh (1985, pp. 88–93).101 The case of Radio Channel 2 is illustrative of this point. In this case, the military comman-der simply copied the Israeli statutory regulations on radio services into a military order heissued, in order to grant Israel Radio a concession to broadcast in the settlements. This is not afamous High Court of Justice precedent-setting ruling, but dealt with one of many other ordersthat exist as a matter of routine. Gush Shalom v Minister of Communication, HCJ 8555/07 (2008).102 Military Order No. 783 of 25 March 1979 established local council for the administration ofurban settlements.103 Benvenisti, supra note 13, at p. 138.

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any official gazette, the massive legislative process in the OPT, as it applies tosettlers, has been obscured.104

The High Court of Justice facilitated a situation whereby two local popula-tions would live on the same territory but with completely distinct legal statusesand sets of rights in two additional ways. First, by approving the provision of thesame socio-economic environment as in Israel to Jewish settlers through theextension of Israeli law into the OPT. This was accomplished by the IsraeliParliament legislating several enactments that apply extraterritoriality, beyondthe jurisdiction of Israel, to Israelis in the OPT. These include laws regulatingcivil life such as fiscal laws, the law on Elections to the Knesset and the NationalInsurance law.105 In the face of such laws, the High Court of Justice ruled, in adistortion of international law, which prohibits the extraterritorial application ofa State’s law beyond its borders into occupied territory,106 that the extension ofIsraeli law to the OPT was legal.107 And second, the High Court of Justice alsoallowed the extraterritorial applicability of Israeli Constitutional law to settlersas Israeli citizens on a personal basis108 and the extraterritorial jurisdiction ofIsraeli civilian courts on civil matters.109

104 Weill, supra note 16, at pp. 141–2.105 The most significant extraterritorial legislation was through the extension of the validity ofthe Emergency Regulations law (West Bank and Gaza – Criminal Jurisdiction and LegalAssistance) of 1984. Article 6B added nine laws which extended extraterritoriality to Israelisresidents in the OPT. Today it contains 17 laws including the “Entry into Israel Law, 5712–1952”;“Income Tax Ordinance, 5721–1961”; “Population Registry Law, 5725–1965”. For an unofficialtranslation see http://nolegalfrontiers.org/en/israeli-domestic-legislation/isr1.106 Extra territorial application of Israeli laws over certain areas – like in area C – may amountto a de facto annexation. On the illegality of annexation see supra, note 69. Moreover, it wouldbe in violation of IHL – Art. 43 of the 1907 Hague Regulations and Art. 64 of the 1949 FourthGeneva Convention – which set limited conditions for introducing new legislation in OT. Theselimits prevents the Occupying Power from extending its own legal system over the occupiedterritories and “from acting as a sovereign legislator” (Sassòli, Supra note 21, p.668). See also,the ICRC commentary on Art. 64: “The legislative power of the occupant as the Power respon-sible for applying the Convention and the temporary holder of authority is limited to the mattersset out in a limitative list below…. these varied measures must not under any circumstancesserve as a means of oppressing the population”. Pictet (1958).107 The High Court of Justice reviewed the legality of the Income Tax Ordinance (AmendmentNo. 32) Law 1978, which extend its application to Israelis residents in the OPT, and rule that it waslegal as the law of military occupation does not govern the extension of laws by the occupant’sgovernment to its citizens in the occupied territories: K.P.A Co. v. State of Israel (1984), CrimA 123/83, at p. 819. See also Shaer v. The Military Commander, HCJ 2612/94 (1994), at p. 679.108 Gaza Coast Regional Council v. The Knesset, HCJ 1661/05 (2005), at p. 80.109 Those decisions were taken by the Ministry of Justice and the High Court of Justice. SeeBenvenisti, supra note 13, at pp. 129–33.




http://nolegalfrontiers.org/en/israeli-domestic-legislation/isr1

4 Conclusion

In the Road 443 ruling, Israel’s highest court explicitly divided the people livingunder its control into categories:

[The population] can be divided to three categories: Residents of the villages, who areProtected Persons as defined by the Fourth Geneva Convention [Palestinians]; The second,residents who live in Israeli communities in the Region [settlers].110 These residents arepart of the local population, even if they are not Protected Persons. In addition to these twogroups, Israeli citizens who are not residing in the Region.111

Normally, when a court is explicitly dividing people into different categories –each subject to a different legal regime – alarm bells ought to ringing loudly.Yet, President Beinisch held in her separate opinion in Road 443 that thecomparison made by the petitioners between preventing the traffic ofPalestinians on road 443 and the crime of apartheid was so radical that it shouldnot have been raised at all. However, had the majority opinion not only provideda description of each population category, but also an analysis of the legalstatus of each category and their resulting rights, the comparison with apartheidwould not seem so radical as it may appear at first glance. In fact, Roberts’warning that the law of military occupation could potentially pave the way for akind of apartheid has been realized over the years with the active and directcontribution of the High Court of Justice.112 The High Court of Justice’s refusal toaddress the legality of the settlements, coupled with the misuse of Article 43 asalso protecting the well being of Israeli settlers in the OPT, has given rise to alegal framework that enables the creation of a segregated legal regime. Byaccomplishing this under the cloak of lawful international legal measures, theState has been able to establish two separate legal regimes and as an inevitableconsequence, two segregated populations, without opting for a de jure annexa-tion, and thus without explicitly appearing as an apartheid system. It has been

110 The High Court of Justice does not use the word settlements, which may have a badconnotation, but the word communities (hityashvout in Hebrew). In the Israeli Zionist nationalnarrative, this term signifies the positive and constructive movement of the Jewish populationinto the land of Israel that brought about its development.111 The Road 443 case, supra note 54, at p. 20.112 Roberts, supra note 19, at p. 52. It is beyond the scope of this paper to examine whether theIsraeli practice in the West Bank amounts to the commission of the crime of apartheid. On thisquestion see: Dugard and Reynolds (2013); Tilley (2012, pp. 123–215); Russell Tribunal onPalestine, “Findings of the South Africa Session: Are Israel’s Practices against the PalestinianPeople in Breach of the Prohibition on Apartheid under International law?”, Cape Town, 5–7November 2011; Ben-Naftali et al. (2005).

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accomplished by the seemingly inconspicuous application of the law of militaryoccupation – legitimized by the High Court of Justice, and indirectly by theinternational community, which holds the High Court of Justice in high esteem.

Acknowledgement: The author wishes to thank Prof. John Dugard for hissupport.

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The Legitimating Role of the Israeli High Court of Justice: From Occupation to Segregation

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