The principle of legality and the israeli military government in the territories

Military Law Review

Volumn , Issue 153, 1996, Pages 245-273

  Shoham, Uri ^a  

^a NONE

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EID: 0030336737     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (55)

1. Estimate published in El Quds newspaper, 4 September 1996.
2. TWO TREATISES ON GOVERNMENT (1690)
3. See generally EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION (Princeton University Press, Princeton, New Jersey, 1993).
4. For further reading see JOHN MOORE, THE ARAB-ISRAELI CONFLICT, vol. II, at 5-21 (1974); ISRAEL'S FOREIGN RELATIONS - SELECTED DOCUMENTS 1947-1974, vol. II, at 703-801 (1976).
5. For further reading see JOHN MOORE, THE ARAB-ISRAELI CONFLICT, vol. II, at 5-21 (1974); ISRAEL'S FOREIGN RELATIONS - SELECTED DOCUMENTS 1947-1974, vol. II, at 703-801 (1976).
6. MARTIN GILBERT, THE ARAB-ISRAELI CONFLICT, supra note 4, at 66.
7. Id. at 67.
8. Id.
9. GEORGE ORWELL, SECOND THOUGHTS ON JAMES BURNHAM: SHOOTING AN ELEPHANT (1950)
10. See also the statement to the Israeli Knesset by Prime Minister Eshkol on 12 June 1967 in ISRAEL'S FOREIGN RELATIONS, supra note 4, at 794-801; statement to the United Nations General Assembly by Foreign Minister Eban on 19 June 1967 in id. at 802-817; and the statement to the United Nations General Assembly by Foreign Minister Eban on 8 October 1968 in id. at 849-857 (especially at 853).
11. Y.Z. Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, 3 ISRAEL L. R. 97, 97-105 (1968).
12. For further discussion of this question and additional references see also ISRAELI DEFENSE FORCES MILITARY ADVOCATE GENERAL'S UNIT, ISRAEL, THE INTIFADA AND THE RULE OF LAW, at 21 (1993).
13. ISRAELI DEFENSE FORCES GEN. HQ REG. 33.0133 (1963, revised 1982).
14. See, e.g., H.C.J. 785/87; 845/87; 27/88, El-Affo et. al. v. The Commander of IDF Forces in the West Bank, 42(2) P.D. 4, 23-24, 76; H.C.J. 606/78, 610/80, Ayub et. al. v. The Minister of Defense et. al, 33(2) P.D. 113, 120, 127; H.C.J. 698/80, Kawasme et. al. v. The Minister of Defense, 35(1) P.D. 617.
15. Order Concerning the Establishment of the Civil Administration (Judea and Samaria) (No. 947) 1981. A similar Order was issued in the Gaza Strip.
16. See BRITISH MANUAL OF THE LAW OF WAR ON LAND, art. 523, at 145 (1958);
17. Proclamation concerning the Regulation of Law and Order (No. 2) (The West Bank) 1967.
18. For a detailed analysis of the implementation of Regulation 43, see H.C.J. 69/81, 493/81, Abu Ita et. al. v. The Military Commander of the West Bank et. al., 37(2) P.D. 1.
19. See Article 66 of the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
20. H.C.J. 87/85, Arjub v. The Military Commander of the West Bank, 42(1) P.D. 353.
21. VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 108, (University of Minnesota Press 1957); JAGS, No. 11, at 227; BRITISH MANUAL OF MILITARY LAW, art. 520 (1958).
22. Order Concerning Claims (Judea and Samaria) (No. 271) 1968.
23. Order Concerning Appeal Committees (Judea and Samaria) (No. 172) 1967.
24. BASIC LAW: THE JUDICIARY, art. 15(c) (1984).
25. In re Societe Bonduelle et Cie, [1951] AD Case no. 177 (June 29, 1951).
26. Committee of United States Citizens Living in Nicaragua et al. v. Ronald Reagan, 886 F.2d 438 (D.C. Cir. 1989); Industria Panaficadora, S.A., et al. v. United States, 763 F. Supp. 1154 (D.D.C. 1991).
27. In 1982, the HCJ finally ruled that its jurisdiction over the activities of the Israeli Military Government is based on the specific provisions of the Basic Law: The Judiciary and does not emanate from an ex lege agreement of the Government. See H.C.J. 393/82, Jama'aiat Iskan v. The Military Commander of the West Bank, 37(4) P.D. 785.
28. For a recent example, see (unpublished opinion, H.C.J. 1934/96) Ouda v. The Civil Administration.
29. Carltona Ltd. v. Commissioner of Works, 2 All E. R., 560, 564 (1943).
30. H.C.J. 434/79, Sachwil v. The Military Commander of the West Bank, 34(1) P.D. 464; H.C.J. 572/82, Mutzlah v. The Minister of Defense, 36(4) P.D. 610; H.C.J. 22/81, Hamed v. The Military Commander of the West Bank, 35(3) P.D. 223.
31. Sachwil, 34(1) P.D. at 464; Mutzlah, 36(4) P.D. at 610; Hamed, 35(3) P.D. at 223.
32. H.C.J. 358/88, The Association for Civil Rights in Israel v. The O.C. Central Command, 43(2) P.D. 529.
33. H.C.J. 5510/92, Turqeman v. The Minister of Defense, 48(1) P.D. 271. Justice Heshin had voiced the same opinion in two previous cases, but his opinion was not accepted by the other judges in those cases. See H.C.J. 2722/92, El-Amarin v. The Military Commander of the Gaza Strip, 46(3) P.D. 693; H.C.J. 4772/91, Hizran v. The Military Commander of the West Bank, 46(2) P.D. 150.
34. See (unpublished opinion H.C.J. 1730/96) Sabiah v. The Military Commander of the West Bank.
35. For a detailed discussion of the origins and reasons for the outbreak of the Intifada, see ISRAELI DEFENSE FORCES MILITARY ADVOCATE GENERAL'S UNIT, ISRAEL, THE "INTIFADA" AND THE RULE OF LAW, at 27-40 (1993).
36. VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 140 (University of Minnesota Press, 1957); see also GREENSPAN, THE MODERN LAW OF LAND WARFARE 223 (1959).
37. VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 140 (University of Minnesota Press, 1957); see also GREENSPAN, THE MODERN LAW OF LAND WARFARE 223 (1959).
38. DEP'T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE 143, para. 371 (1956); see also GREAT BRITAIN LAW OF LAND WARFARE, art. 145, at 519 (1958).
39. Abu Ita et. al. v. The Military Commander of the West Bank et. al., 37(2) P.D. 1 (1981).
40. See H.C.J. 390/79, Duweikat v. The Government of Israel, 34(1) P.D. 1, 12.
41. The HCJ has not hesitated to exercise its supervision and to overturn decisions of the Military authorities in cases in which it deemed that the principles of administrative law had not been met. See H.C.J. 802/80, Samara v. The Commander of the Judea and Samaria Area, 34(4) P.D. 1, 3; Duweikat, 34(1) P.D. at 1.
42. Examples of Basic Laws, among others, include the Basic Law: The Israel Defense Forces; Basic Law: The Government; and Basic Law: The Knesset.
43. See (unpublished opinion C.A. 6821/93) United Mizrahi Bank Ltd et. al. v. Migdal Cooperative Village et. al.
44. A similar distinction would seem to have been made in Article 15(1) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms which provides as follows: In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
45. In one case, the HCJ, referring to Article 5 of the Basic Law: Human Dignity and Liberty ruled that the right of a detainee to meet with his lawyer is derived from the right to personal freedom. See H.C.J. 3412/91, Abdalla v. The Commander of the Gaza Strip, 47(2) P.D. 843. In the El-Amarin case, Justice Heshin, based his opinion on Articles 3 and 8 of the same Basic Law. See H.C.J. 2722/92, El-Amarin v. The Military Commander of the Gaza Strip, 46(3) P.D. 693. In Gerar v. The Commander of the Judea and Samaria Area, the HCJ applied the principle of freedom of occupation, protected by the new Basic Law: Freedom of Occupation, to the Military Government when addressing the right of a Palestinian resident of the West Bank to practice law in spite of his having being convicted of committing security offenses. 47(3) P.D. 298 (H.C.J. 3940/92).
46. See 3 AARON BARAK, INTERPRETATION IN THE LAW 460 (1994). For comparison, it is interesting to note that the United States Supreme Court has ruled that the provisions of the Constitution relating to human rights apply outside the United States only to American citizens. Reid v. Covert, 354 U.S. 1 (1957). Additionally, the United States Supreme Court held that the restrictions on search imposed by the Constitutions 4th Amendment do not apply to a search performed by an American Authority outside the United States in a non-American's house. Verdugo Orouidez v. United States, 494 U.S 259 (1990). In the Orouidez, the Supreme Court stated that the 4th Amendment, as well as the 1st, the 2d, the 9th, and the 10th, apply to, "A class of persons who are a part of national community or who have otherwise developed sufficient connection with this Country to be considered part of that community." Supra, 494 U.S. at 265. Therefore, aliens outside the United States do not enjoy the protection of the United States Constitution.
47. Cr. A. 4211/91, El-Mazri v. The State of Israel, 47(5) P.D. 624. Although it should be noted that in this case the court was sitting as the Criminal Court of Appeals and not as the HCJ.
48. Chief Justice Barak, in his book Interpretation in the Law, would seem to concur with this conclusion.
49. The DOP includes provisions relating to additional agreements and undertakings such as specific agreements concerning preparatory transfer of civil authority and the establishment of a multi-party committee with Egypt and Jordan and other countries.
50. Although it should be noted that Area C, still under Israeli control, comprises over 70% of the territory of the West Bank.
51. Outstanding issues include, among others, Jerusalem, foreign relations, borders, refugees, security arrangements, water rights and others.
52. The Protocol Concerning Legal Affairs (1995).
53. See (unpublished H.C.J. 5581/93) The Association of the Victims of Arab Terrorism v. The State of Israel; (unpublished opinion H.C.J. 2713/95) The Association for the Preservation of the Jews' Rights in Israel v. The Prime Minister; (unpublished opinion H.C.J. 6023/95) Carmela Hanoch v. The Minister of Justice; cf. (unpublished opinion H.C.J. 6230/95) Dr. Ahmed Tibi v. The State of Israel; (unpublished opinion H.C.J. 4528/94) Sofran v. The Prison Service.
54. 53
55. RALPH WALDO EMERSON, JOURNALS (1867).