Human proportions: Are human rights the emperor's new clothes of the international law of occupation?

European Journal of International Law

Volumn 18, Issue 1, 2007, Pages 1-35

  Gross, Aeyal M ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 34447511602     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm001     Document Type: Article

References (245)

1. The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, available at www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (hereinafter Wall).
2. Case Concerning Armed Activities on the Territory of the Congo, Democratic Republic of the Congo v. Uganda (2005), available at www.icj-cij.org/icjwww/idocket/ico/icoframe.htm (hereinafter Armed Activities).
3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 [1996] ICJ Rep 226 (hereinafter Nuclear Weapons).
4. Ibid., at para. 25.
5. For a discussion, see Stephens, 'Human Rights and Armed Conflict: The Advisory Opinion of the international Court of Justice in the Nuclear Weapons Case', 4 Yale Hum Rts & Development L J (2001)1.
6. For a discussion of 'convergence' preceding the recent ICJ decisions see T. Meron, Human Rights in Internal Strife: Their International Protection (1987). at 3-28.
7. For an early formulation of the convergence thesis see Meron, 'Human Rights in Time of Peace and in Tune of Armed Strife: Selected Problems', in T. Buergenthal (ed.), Contemporary issues in International Law (1984), at 1.
8. See Ben-Naftali and Shany, 'Living in Denial: The Application of Human Rights in the Occupied Territories', 37 Israel Law Review (2003-2004) 17, at 41-45;
9. Doswald-Beck and Vile, 'International Humanitarian Law and Human Rights Law', 293 International Review of the Red Cross (1993) 112.
10. Draper suggests that this timing may be connected to the 1967 Israeli occupation of the OPT. In his view, then, the merger of IHRL and IHL was driven by politically motivated states that wished to criticize Israel's activities. See Draper, 'Humanitarian Law and Human Rights' [1979] Acta Juridica 193.
11. Ben-Naftali and Shany, supra note 6, at 41-58.
12. For a discussion of IHL and IHRL as originating in different philosophies but nevertheless converging see Doswald-Beck and Vite, supra note 6.
13. On the 'distinct but related' role of these two bodies of law see Gasser, 'International Humanitarian Law and Human Rights Law in Non-International Armed Conflict', 45 German Yearbook of International Law (2002) 149;
14. R. Provost, International Human Rights and Humanitarian Law (2002).
15. See also Doswald-Beck, 'Human Rights and Humanitarian Law: Are There Some Individuals Bereft of All Legal Protection?', 98 ASIL Proceedings (2004) 353;
16. Schindler, 'Human Rights and Humanitarian Law; Interrelationship of the Laws', 31 American University L Rev (1981-1982) 935.
17. For a discussion of the 'merger' between IHL and IHRL and its implication for the law of occupation see Frowein, 'The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation', 28 Israel Yearbook on Human Rights (1998) 1.
18. On the context of occupation and for an overview of literature, case law, and practice see also Ben-Naftali and Shany, supra note 6;
19. Quigley, 'The Relation Between Human Right Law and the Law of Belligerent Occupation: Does Occupied Population Have a Right to Freedom of Assembly and Expression?', 12 British Columbia Int'l & Cornnp LJ (1989) 1.
20. On the applicability of human rights in occupation see also Roberts, 'Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967', 84 AJIL (1990) 44, at 70-74;
21. E. Cohen, Human Rights in the Israeli-Occupied Territories (1985);
22. Benvenisti, 'The Applicability of Human Rights Conventions to Israel and to the Occupied Territories', 26 Israel L Rev (1992) 24.
23. On the 'convergenre' and its connection to development in international criminal law and the establishment of the International Criminal Court see Benison, 'War Crimes: A Human Rights Approach to a Humanitarian Law Problem at the International Criminal Court', 88 Georgetown LJ (1999) 141.
24. See Meron, 'The Humanization of Humanitarian Law', 94 AJIL (2000) 239, where he describes and analyses these developments in IHL in detail.
25. See also T. Meron, The Humanization of International Law (2006).
26. Teitel, 'Humanity's, Law: Rule of Law for the New Global Politics', 35 Cornell Int'l LJ (2001-2002) 359. Teitel's emphasis seems to be on IHL's influence on IHRL rather than the opposite.
27. Schindler, supra note 8, at 941-942;
28. Ben-Naftali, 'The Extraterritorial Application of Human Rights to Occupied Territories', 100 ASIL Proceedings (2006) 90.
29. See the discussion in infra notes 153-161 and their accompanying text.
30. I borrow the term 'righting' from Knop, 'The "Righting" of Recognition: Recognition of States in Eastern Europe and the Soviet Union', in Y. Le Bouthillier, D.M. McRae and D. Pharand (eds), Selected Papers in International Law: Contribution of the Canadian Council on international Law (1999), at 261.
31. Although a distinction may be drawn between the convergence approach and one that views the two bodies of law as mutually complementary, my perspective considers the development whereby the two bodies of law are co-applied, either as 'converging' or as 'complementary'. For such a distinction see Quenivet, 'The ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: The Relationship between Human Rights and International Humanitarian Law', 18 Aug. 2004, available at http://www.ruhr-uni-bochum.de/ifnv/publications/bofaxe/x283E.pdf.
32. See supra note 8
33. and infra note 22.
34. Including the interpretation of human rights treaties and of decisions interpreting these treaties.
35. See the sources cited in supra note 8 and infra note 22 and also the following: Quigley, 'David v. Goliath: Humanitarian and Human Rights Law in Light of the Palestinian Right of Self-determination and Right to Recapture Territory Taken by Force', 21 NYU J Int'l L & Pol (1988-1989) 489, at 499-503;
36. Bennoune, 'Toward a Human Rights Approach to Armed Conflict: Iraq 2003', 11 U California Davis J Int'l L & Pol'y (2004) 171.
37. See also F. Coomans, and M.T. Kamminga, Extraterritorial Application of Human Rights Treaties (2004).
38. D. Kretzmer suggest, that, in addition to the 'traditional' or 'purist' position and the 'universal' human rights position, a third approach is also possible. This approach, which he supports, distinguishes between different situations in armed contlict, supporting reliance on IHL in certain situations and on IHRL in others. His suggestion is that IHL should apply in the 'battlefield proper', but as soon as actual hostilities are over and circumstances shift to situations of 'effective control' (such as occupation), IHRL will supplement IHL. See the presentation to the conference on 'The Law of Armed Conflict: Problems and Prospects', Chatham House, 18-19 Apr. 2005, by Kretzmer, 'The Law of Armed Conflict: Problems and Prospects', 18-19 Apr. 2005, available at http://www.chathamhouse.org.uk/pdf/research/il/ILParmedconflict.pdf.
39. For a discussion of recent European cases on human rights in armed conflict see Abresch, 'A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya', 16 EJIL (2005) 741;
40. Heintze, 'The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts', 45 German Yearbook of International Law (2002) 60.
41. Wall, supra note 1, at para. 106.
42. Ibid., at paras 107-114.
43. Ibid., at para. 106,
44. cited in Armed Activities, supra note 2, at para. 216.
45. The last sentence in the quoted passage, referring to the lex specialis doctrine, was omitted when quoted in Armed Conflict. For a discussion of problems in the application of lex specialis in this context see Bianchi, 'Dismantling the Wall: The ICJ's Advisory Opinion and Its Likely Impact on International Law', 47 German Yearbook of International Law (2004) 343, at 369-378.
46. Wall, supra note 1, at paras 122-142.
47. For an evaluation of the ICJ's position that supports its determination in principle but also offers critiques see Ben-Naftali and Shany, supra note 6, at 109-118.
48. For an opposite view see Dennis, 'Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation', 99 AJIL (2005) 119.
49. Armed Activities, supra note 2, at paras 217-220.
50. Ibid., at para. 211.
51. Ibid., at para. 178.
52. This decision is also significant because it involves a situation of occupation that did not share what has been called'the unusual circumstances of Israel's prolonged occupation'. Dennis suggested that the ICJ's determination on this matter in Wall may be attributed to this feature of the Israeli occupation, and that it remains unclear whether the opinion could be read as generally endorsing the view that the obligations assumed by states under IHRL apply extraterritorially in situations of armed conflict and military occupation: Dennis. supra note 22, at 122.
53. By repeating the same determination in the Armed Activities case, supra note 2,
54. the ICJ clarified its position on this point and implicitly rejected Dennis' suggestion for a possible narrow reading of its determination on this matter in Wall, supra note 1.
55. The language of the official French version of Art. 43 of the Hague Regulations refers to 'l'ordre et la vie publique', and thus the term 'civil life' is more accurate and appropriate than the term 'safety' used in the English version. See Benvenisti, The International Law of Occupation (1993, paperback edn., 2004), at 7, n. 1, and the references therein.
56. Ibid., at 7-31.
57. Compare with Kennedy's argument that to maintain the claim to universally and neutrality, human, rights pay little attention to background conditions that will determine the meaning of right in particular contexts, rendering the even-handed pursuit of 'rights' vulnerable to distorted outcomes: See David Kennedy, The Dark Side of Virtue: Reassessing International Humanitarianism (2004), at 12.
58. The critique of rights as abstract relies on Hegelian and Marxist thought, and was developed in the literature of critical legal studies: see Tushnet, 'An Essay on Rights', 62 Texas L Rev (1984) 1363;
59. Duncan Kennedy, A Critique of Adjudication (1997), at 299-388.
60. Art. 4 of the Fourth Geneva Convention.
61. See Gross, 'The Construction of a Wall between the Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation', 19 Leiden J Int'IL (2006) 393, at 418.
62. In Kennedy's words, human rights remedies treat the symptoms rather than the illness, and this allows the illness not only to fester but to seem like health itself: David Kennedy, supra note 28, at 25.
63. Similarly, the tendency in human rights is to treat 'only the tip of the icebergs': ibid., at 32.
64. On the different contexts of proportionality and their merger by the HCJ see Gross, supra note 30, at 405-410.
65. On the different meanings of proportionality in IHRL and IHL see Lubell, 'Challenges in Applying Human Rights Law to Armed Conflict', 87 Int'l Rev of the Red Cross (2005) 737, at 745-746;
66. Habenpflug, 'Comment', 45 German Yearbook of International Law (2002) 80-81.
67. On public interest and military necessity as two concepts that differ in ways capable of making one broader than the other see ibid.
68. See my discussion in Gross, supra note 30.
69. For a relevant critique of curent IHL see also David Kennedy, supra note 28, at 235-357.
70. The position of the Israeli government is discussed in detail in Ben-Naftali and Shany. supra note 6. at 25-40,
71. and criticized in ibid., at 40-100. Although most of the debate pertains to question of principle about the relationship between IHL and IHRL, it also addresses the question of Israel's effective control of the OPT, or at least parts thereof, following the establishment of the Palestinian Authority.
72. HCJ 3239/02, Ma'arab v. The IDF Commander in Judea and Samaria, 57(2) PD 349 (hereinafter Ma'arab), an English translation of which is available at http://elyon1.court.gov.il/files_eng/02/390/032/ a04/02032390.a04.pdf.
73. Ibid., at paras 19-36.
74. Ibid., at para. 19.
75. HCJ 3278/02, Hamoked: Center for the Defense of the Individual v. IDF Commander in the West Bank, 57 (1) PD 385, at paras 23-25 (hereinafter Hamoked);
76. HCJ 5591/02, Yasin v. Commander of Military Camp Ktziot, 57(1) PD403,at paras 11-12, an English translation of which is available at http://elyon1.court.gov.il/files_eng/02/910/055/a03/0205510.a03.pdf (hereinafter Yasin). The second of these cases dealt with an arrest facility established within Israel and not in the OPT, and thus is not directly relevant to the current discussion.
77. Hamaked, supra note 39, at para. 24.
78. HCJ 1890/03, City of Bethlehem v. The State of Israel - Ministry of Defence, 54(4) PD 736, at para. 15 (hereinafter City of Bethlehem.
79. In the past, the HCJ did adopt an approach implying that IHRL did not apply in the OPT. In HCJ 629/82, Moustafa v. The Military Commander for Judea and Samaria, 37(1) PD 158, the Palestinian petitioners invoked, inter alia, the Universal Declaration of Human Rights (UDHR) against orders to deport them. The HCJ held that the UDHR does not apply in areas under belligerent occupation administered as such as a result of war and for as long as the war situation continues (para. 5). In earlier cases that had addressed the applicability of the ICCPR in the OPT, petitions were rejected or left the question open. These rulings, however, did not include an exhaustive discussion of the matter and were issued before Israel became a party to the ICCPR in 1991.
80. See HCJ 13/86, Adel Ahmed Shain v. The IDF Commander in the Judea and Samaria area, 41(1) PD 197;
81. HCJ 87/95, Gamal Ahmmed G'aber Argub v. IDF Commander in Judea and Samaria, 42(1) PD 353, at para. 7.
82. HCJ 7957/04, Mara'abe v. The Prime Minister of Israel (not yet published), an English translation of which is available at http://elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.pdf.
83. HCJ 10356/02, Hass v. Commander of the IDF forces in the West Bank 58(3) PD 443. An English translation is available at http://elyon1.court.gov.il/files_eng/02/970/104/r15/02104970.r15.pdf (hereinafter Hass).
84. HCJ 7862/04, Zohariya Hassan Mourshad Bin Hussein Abu Daher v. IDF Commander in Judea and Samaria (not yet published), at para. 7.
85. HCJ 1661/05, Regional Council Gaza Beach v. the Knesset (hereinafter Regional Council Gaza Beach) (not yet published), at paras 78-80.
86. Ibid.;
87. Hamoked, supra note 39, at para. 23;
88. HCJ 8276/05. Adalah v. Minister of Defence (not yet published). at paras 22-23.
89. Hass, supra note 43, at paras 8, 14.
90. HCJ 9593/04, Rashad Murar, Head of the Yanun Village Council v. IDF Commander in Judea and Samaria (hereinafter Rahad Murar) (not yet published), at para. 14.
91. See the cases cited in infra note 98.
92. HCJ 769/02, The Public Committee Against Torture v. The Government of Israel (not yet published), at para. 18. An English translation is available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/ 02007690.a34.pdf.
93. For a discussion of the case law of the HCJ and the various approaches taken by it to the question of the applicability of human rights in the OPT see Ben-Naftali and Shany, supra note 6, at 87-96.
94. For a discussion of the increasing recourse of Israeli law to IHRL law see Barak-Erez, 'The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue'. 2 I-CON (2004) 611. Specifically on the OPT see 618-623.
95. Ben-Naftali and Shany, supra note 6, at 25.
96. On the legislation of the Basic Law see Gross, 'The Politics of Rights in Israeli Constitutional Law', 3 Israel Studies (1998) 80.
97. B'Tselem: The Israeli Information Center for Human Rights in the Occupied Territories, Hebron, Area H-2: Settlements Cause Mass Departure of Palestinians, 2003, available at http://www.btselem.org/english/ publications/Index.asp?YF=2003&image.x=10&image.y=4.
98. See http://www.btselem.org/english/statistics/Index.asp.
99. Hass, supra note 43.
100. Ibid., at para. 5.
101. Ibid., at para. 3.
102. Ibid.
103. Ibid., at para. 8.
104. Ibid.
105. Art. 23(g) of the Hague Regulations. The HCJ also cited Art. 52 of the Hague Regulations, which determines that requisition in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation.
106. Art. 53 of the Fourth Geneva Convention. This provision deals only with destruction and not with seizure as such.
107. Hass. supra note 43. at para. 9.
108. Note that the legality of the Jewish settlement in Hebron had already come before the HCJ. In 1994. the HCJ rejected a petition demanding the evacuation of the settlers, holding that the Jewish settlement in Hebron is a controversial political question. See HCJ 1798/94, Dahle v. IDF Commander in Judea and Samaria (not yet published). This decision is in line with the continued refusal of the HCJ to engage in the matter of the settlements' legality. See Gross, supra note 30, at 414-415;
109. D. Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), at 75-99.
110. Hass, supra note 43, at para. 14.
111. Ibid., at paras 15-21.
112. The term is borrowed from A. Watson, Legal Transplants: An Approach to Comparative Law (1993).
113. On the (im)balance of security see Gross, supra note 30, at 418;
114. Ben-Naftali, Gross and Michaeli, 'Illegal Occupation: Framing the Occupied Palestinian Territory', 24 Berkeley J Int'l L (2005) 551, at 590-592, 603-605.
115. In any balancing attempt, much depends on the choices made in the balancing process. As Tushnet has shown, balancing is responsible for much of the indeterminacv of rights analysis, as a balancer can choose the necessary measure of value, the necessary consequences, and the necessary level of generality, and thus deny the claim that a right has been violated. A court can also choose any of many generally protected interests and balance them as it chooses: See Tushnet, supra note 28, at 1371-1375.
116. On these policies as creating a breach of trust by the military commander see Ben-Naftali, Gross and Michaeli, supra note 70, at 579-592.
117. N. Emiliou, The Principle of Proportionality in European Law: A Comparative Study (1996), at 40-43. Emiliou points to this rationale for proportionality in his discussion of the principle as developed in German public law.
118. On proportionality as a tool for judicial review in constitutional democracies, as a form of judicial review that relies on this principle to tell judges when the elected representatives of the people and their officials are acting properly and when they are not, see D. Beatty, The Ultimate Rule of Law (2004), at 159-161.
119. R. Higgins, Problems and Process: International Law and How We Use It (1994), at 232 (emphasis in the original).
120. Ibid., at 234.
121. Ibid., at 232.
122. The discussion in the last two paragraphs is based on my discussion in Gross, supra note 30, at 406-409.
123. Supra notes 32-33 and the accompanying text.
124. On the different legal regimes that apply to the two populations see Ben-Naftali, Gross and Michaeli, supra note 70, at 583-588.
125. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation: ibid., at 554.
126. Ibid., at 570-575.
127. For an elaborate discussion of the application of this prohibition to the settlements see ibid., at 581-582.
128. Regional Council Gaza Beach, supra note 45.
129. I am grateful to Ahmed Amara for this point.
130. Supra note 25 and the accompanying text.
131. Meron, supra note 9, at 256-261.
132. City of Bethlehem, supra note 41.
133. Ibid., at para. 7.
134. Ibid., at para. 8.
135. Ibid., at para. 11.
136. The HCJ's specific reference to IHRL was limited to the right of freedom of movement, and did not extend to other rights discussed in this case. The HCJ cited Art. 12 of the ICCPR as well as Art. 13 of the ECHR, and also mentioned Art. 2 of the Fourth Protocol to the ECHR. It also mentioned that the right is also probably recognized in customary international law: Bethlehem, supra note 41, at para. 15.
137. Ibid.
138. Ibid., at paras 18-21.
139. HCJ 7862/04, Abu Daher v. IDF Commander in Judea and Samaria (not yet published).
140. Ma'arabe, supra note 42.
141. See Gross, supra note 30, at 415-418.
142. Ma'arabe, supra note 42, at paras 25-29.
143. See Gross, supra note 30, at 418.
144. See ibid., at 430-435.
145. HCJ 11395/05, Mayor of Sebastia v. State of Israel (not yet published). In other cases concerning the wall, the HCJ repeated the determination that the military commander should balance the rights of the local Palestinian population, the rights of the Israeli settlers, and the security interests, and rejected petitions by Palestinians affected by the wall.
146. See HCJ 1348/05, Dr Shatia, Mayor of Salfit v. State of Israel (not yet published) where the HCJ rejected a petition by Palestinians concerning the construction of the wall in the Ariel area. The ruling held that the building does violate the rights of Palestinians, but this violation is justified as it represents a proportionate balance between these three interests.
147. The same logic was followed in HCJ 5624/06, Municipality of Beit Omar v. The Military Commander in the West Bank (not yet published);
148. HCJ 3758/04, Agraiev v. Government of Israel (not yet published);
149. HCJ 6027/04, Radad, Head of Village Council of Alzawia v. Minister of Defence (not yet published);
150. HCJ 4290/05, Local Council of Bir Naballah v. Government of Israel (not yet published);
151. HCJ 5488/04, Local Council Elram v. Government of Israel (not yet published).
152. The last two cases involved sections of the wall built in the Jerusalem area intended to protect the city of Jerusalem that, according to Israeli domestic law, is wholly included within Israel proper. These cases, then, involve the rights of Israelis living within Israel itself and not only settlers. An exception to this pattern, different from the one discussed in the text, is a case in which the HCJ accepted a petition of Palestinian residents opposing the building of a concrete railing alongside a road in order to protect settlers who use it. After examining the case based on the same triad of considerations, the HCJ held that the military commander could have achieved the same security purposes resorting to less restrictive measures: See HCJ 1748/06, Mayor of Daharia v. IDF Commander in the West Bank (not yet published).
153. In other cases, the HCJ rejected the petitions of settlements that protested at being left outside the wall using the same normative framework, again holding that the military commander balanced the various interests in proportionate fashion. See HCJ 3680/05, Committee of Tene v. Prime Minister of Israel (not yet published);
154. HCJ 399/06, Susia v. Government of Israel (not yet published).
155. Rashad Murar, supra note 48.
156. Ibid., at para. 11.
157. Ibid., at para. 25.
158. Ibid., at paras 14, 24-28.
159. Ibid., at para. 21.
160. HCJ 4547/03, Chlabi v. The Prime Minister (not yet published). Some of the facts in this case are not detailed in the HCJ's verdict but in the petition itself. Significantly, the HCJ did not mention in its decision that, while the petitioners had been outside the house they could not enter, their house was set on fire and destroyed. The one page ruling in the Chalbi case, unlike some of the HCJ's major decisions that did accept petitions submitted by Palestinian petitioners, does not appear in an English translation on the HCJ's website and was not the subject of extensive discussions in international law journals. Nevertheless, it is as much a part of the occupation's legal structure as the better known decisions that have been the subject of extensive attention.
161. HCJ 72/86, Zalum v. Military Commander for Judea and Samaria, 41(1) PD 528.
162. For a discussion of this case and its significance see Kretzmer, supra note 66, at 117-118.
163. HCJ 7007/03, Kwwasme v. IDF Commander for Judea and Samaria (not yet published).
164. HCJ 4661/06, The Committee for the Development of Hebron v. The State of Israel (not yet published).
165. See also HCJ 3435/05, Saleh Fares Elnatahsha, Director of the Wakf in Hebron v. IDF Commander for Judea and Samaria (not yet published), where the HCJ upheld the seizure of land for the construction of an 'emergency route' within Hebron.
166. See also HCJ 3435/05, Salah Fares Al-Natasha, Director of the Wakf in Hebron v. IDF Commander in Judea and Samaria (not yet published), where the HCJ, based on a similar rationale, upheld the military commander's seizure of Palestinian land in Hebron that he argued was needed to build an emergency road from Tel-Roumeida (a neighbourhood in Hebron housing 70 Israeli settlers) to other areas in the city of Hebron.
167. HCJ 4219/02, Gosin v. The Military Commander in the Gaza Strip, 56(4) PD 608. I am grateful to Yossi Wolfson for pointing out the significance of this case to my argument.
168. HCJ 256/72, Electricity Company for Jerusalem Ltd v. Minister of Defense, 27(1) PD 124.
169. Kretzmer, supra note 66, at 64-65.
170. See supra notes 36-50 and accompanying text.
171. See supra notes 36-38 and accompanying text.
172. See Shamir, 'Landmark Cases and the Reproduction of Legitimacy', 24(3) Law & Society Rev (1990) 781.
173. Compare this with decisions in the context of home demolitions, where the HCJ was willing to intervene on the subject of giving a right to appeal to people whose homes were about to be demolished: HCJ 358/88, ACRI v. Central Command, 43(2) PD 529. Concerning home demolitions per se, however, the HCJ usually declined to intervene.
174. See supra notes 39-40 and accompanying text.
175. Hamoked, supra note 39, at para 23-25;
176. Yasin, supra note 39, at paras 11-12.
177. The announcement of rights without a textual source is not strange to the Israeli constitutional systems, which until 1992 had developed without constitutional texts on human rights and, even today, includes only two partial and limited Basic Laws on human rights. Much of Israel's right law, then developed through case lae. See Gross, supra note 54;
178. Barak-Erez, 'From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective', 26 Columbia Human Rights L Rev (1995) 309.
179. HCJ 168/91. Miladi Morcus v. Minister of Defence, 45(1) PD 467.
180. HCJ 507/85. Bahig Tamimi v. Minister of Defence, 41(4) PD 57.
181. HCJ 3940/92, Ghasan Mohamed Hasin Gerar v. Military Commander for Judea and Samaria, 47(3) PD 298, at para. 5.
182. Ben-Naftali and Shany, supra note 6, at 22.
183. Ibid., at 23.
184. Cohen, supra note 8, at p. xvii.
185. Benvenisti, supra note 8, at 31-32.
186. See. e.g., Concluding Observations of the Human Rights Committee (HRC): Israel, of 5 Aug. 2003. at para. 11, UN Doc. CCPR/CO/78/ISR (2003), where the HRC noted that 'in the current circumstances, the provisions of the Covenant [the ICCPR] apply to the benefit of the population ofthe Occupied Territories'. For a comprehensive reference to similar decisions by other treaty bodies see Ben-Naftali and Shany, supra note 6, at 20-21.
187. See also the relevant HRC's General Comment: General Comment 15 on The Position of Aliens under the Covenant (11/04/86);
188. General Comment 29 on States of Emengency, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/12/Rev.1/ Add.13 (2004);
189. and Sections 10 and 11 of General Comments 31 on the Nature of the General Legal Obligation on States Parties to the Covenant in
190. ibid.
191. For a detailed discussion of the distinction between protection of the settlers' lives and permission to violate Palestinian rights to protect settlements see Gross, supra note 30, at 415-418.
192. For a discussion of how some of the problems addressed in this article manifest themselves in IHL analysis see ibid. For a discussion of the limits of humanitarian law, including of the role of proportionality,
193. see David Kennedy, supra note 28, at 235-357.
194. O. Gross, '"Once More Unto the Breach": The Systematic Failure of Applying the European Convention of Human Rights to Entrenched Emergencies', 23 Yale J Int'l L (1998) 437.
195. Wilde,'Legal "Black Hole"? Extraterritorial State Action and International Treaty Law on Civil and Political Rights', 26 Michigan J Int'l Law (2005) 739, at 782-783.
196. See Gross, supra note 30, at 399-402.
197. App. no. 15318/89, Lozidiou v. Turkey, ECHR 1996-VI, (1997) 23 EHHR 513.
198. Ibid., at para 64.
199. For a discussion of the relevance and possible application of IHL to thi case see Heintze, supra note 18, at 65-70.
200. App. no. 25781/94, Cyprus v. Turkey, ECHR 2001-IV, (2002) 35 EHHR 30.
201. See also App. no. 46374/99, Xenides-Arestis v. Turkey, ECHR (2005), available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item= 2&portal=hbkm&action=html&highlight=xenides- arestis&sessionid=10178507&skin=hudoc-en.
202. See App. no. 57942/00, Khashiyev and another v. Russia, (2006) 42 EHRR 20;
203. App. no. 57947/00. Isayeva and others v. Russia, (2005) 41 EHHR 39,
204. App. no. 57950/00, Isayeva v. Russia, (2005) 41 EHHR 38.
205. On the Chechnya cases see Abresch, supra note 18.
206. Abresch argues that the ECtHR's use of human rights law in this context may prove to be the most promising basis for the international community to supervise and respond to violent interactions between the state and its citizens (ibid., at 743).
207. In this context. see also ECtHR cases concerning human rights violations in Turkey's internal strife. On these cases see Doswald-Beck, supra note 8.
208. More generally, decisions of the HRC on the extraterritorial application of IHRL contributed to set standards that put human rights obligations on states without regard to the territory in which the violation takes place. See e.g., Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40), at 176 (1981), available at http://www1.umn.edu/humanrts/undocs/session36/ 12-52.htm.
209. Al-Skeini v. Secretary of State for Defence and the Redress Trust 2004] EWHC 2911 (Admin), [2004] 2 WLR 1401, [2005] UKHRR 427 (appeal pending).
210. Ben-Naftali, Gross and Michaeli, supra note 70, at 581-588.
211. See supra notes 55-103 and the accompanying text.
212. For a critique of the ICJ's position on this point see Gowlland-Debbas, 'The Right to Life and Genocide: The Court and an International Public Policy in International Law', in L. Boisson de Chazournes and P. Sands (eds), The International Court of Justice and Nuclear Weapons (1999), at 315-337.
213. Gowlland-Debbas argues that relegating the interpretation of the term arbitrary at times of armed conflict exclusively to humanitarian law is a setback to a tendency that sees human rights law as relevant to the laws of war ibid., at 330.
214. See the cases cited in supra note 136 and the accompanying text, and Abresch, supra note 18.
215. See also the ECtHR discussion of the right to life in the context of armed clashes in Turkey in App. no. 23818/94. Ergi v. Turkey ECHR 1998-IV, at paras 79-81.
216. Art. 2(2) ECHR.
217. See, e.g., Isayeva, supra note 136, at paras 154-200.
218. See Abresch, supra note 18, at 757-760.
219. See supra notes 62-70 and the accompanying text.
220. Ergi v. Turkey, supra note 140;
221. App. no. 21593/93, Gulec v. Turkey, ECHR 1998-IV, (1999) 28 EHHR 121.
222. For a discussion see Heintze, supra note 18, at 71-77.
223. See supra notes 28-29 and the accompanying text.
224. Draper, supra note 7, at 204-206.
225. On the question whether the absence of a democratic system involving a relationship between 'citizens' and 'government' makes human rights law inappropriate to situations of occupation see Roberts, supra note 8, at 72.
226. Art. 4 ICESCR.
227. Wall, supra note 1, at para. 136.
228. Kennedy, supra note 28, at 5.
229. Ibid., at 33.
230. See H. Arendt, The Origins of Totalitarianism (1968), at 267-302.
231. Ibid., at 296-298.
232. Following Schmitt's discussion of the state of exception, the contemporary discussion of exception as a relation of ban is detailed in the work of G. Agamben. See C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1988);
233. G. Agamben, Homo Sacer: Sovereign Power and Bare Life (1999).
234. On the relation of exception as a relation of abandonment, see ibid, at 28-29.
235. See also G. Agamben, State of Exception (2005). Reading a
236. On the Israeli position see Ben-Naftali and Shany, supra note 6, at 100-101.
237. Ben-Naftali, Gross and Michaeli, supra note 70, at 592-608.
238. On the indeterminacy of rights see Tushnet, supra note 28, at 1371-1383.
239. Ben-Naftali, Gross and Michaeli, supra note 70.
240. Teitel, supra note 10, at 371.
241. Ben-Naftali, Gross and Michaeli, supra note 70, at 607-608.
242. O. Wendell Holmes, The Common Law (1881), at 1.
243. For an argument of this type see Ben-Naftali, supra note 11.
244. See also Lubell's elaboration of the problems entailed in the application of human rights law to armed conflict and his discussion of the need to address these challenges: Lubell, supra note 32.
245. On rights as a double-edge sword see Horowitz, 'Rights', 23 Harvard Civil Rights Civil Liberties L Rev (1988) 393.