The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (review)

This is an important book. Professor David Kretzmer provides a wealth of information about Israeli policies in the territories it has occupied since the 1967 war. More important, perhaps, he demonstrates the limited ability of any judicial authority to restrain military actions in a war-like situation. The Occupation of Justice is a “must read” for anyone interested in either subject.

The Supreme Court is an active policymaker within the Israeli political system. Relatively early in Israeli history, the civil courts won their independence from direct political intrusions. Since Israeli democracy is based upon a wide-open, robust competition among a multitude of political parties, Israelis came to value decisions based on non-partisan considerations. Over the years, the Court became increasingly activist, especially in the matters relating to individual rights. The Supreme Court took the lead in institutionalizing liberal, democratic values in Israeli society. This judicial approach, and the public’s response to it—the Supreme Court enjoys public support that is second only to that of the Israel Defense Forces—has resulted in a situation in which the net of judicial review extends over all arms of government and over almost all types of activities.

It is not surprising, therefore, that Palestinians in the occupied areas brought cases to the Supreme Court sitting as the High Court of Justice. (In that capacity, the Supreme Court, sitting as a court of first instance, has the jurisdiction and is authorized to grant relief against government actions “in the interests of justice.”) What is surprising is that Palestinians in the occupied areas were granted access to the Israeli High Court by a decision of the Government not to oppose such applications. Allowing residents of an occupied area access to the courts of the occupying nation is unprecedented in international law and was not authorized by Israeli statutes. With the passage of time, however, Supreme Court decisions treated it as accepted practice. Thus the High Court of Justice deals with Palestinian claims that the Israeli occupying authorities have exceeded or misapplied their powers in the same way that it hears petitions by Israeli citizens against their own government’s decisions.

In clear, concise language that is easily understandable by the non-lawyer, Professor Kretzmer addresses the policies that have resulted from the unprecedented review by the Supreme Court over the Israeli government’s actions in the occupied territories. Part I examines the basis for the Court’s jurisdiction, the substantive norms applied by the Court, and its attitude to the application and interpretation of international law. Part II discusses the High Court’s decisions relating to two major political issues: the establishment of Israeli settlements in the West Bank and Gaza Strip and the status of the Palestinian residents of those areas. Part III focuses on how the High Court has handled petitions challenging security measures against Palestinians in the occupied territories. This framework enables Professor Kretzmer to conclude with a well-documented and insightful set of conclusions.

Two polar positions have emerged in the dialogue about the Supreme Court’s policymaking role in the occupied territories. One holds that the High Court has been a significant restraint on the actions of the occupation authorities. The other maintains that the Court has done little more than attempt to legitimate the repression associated with the long-term control of a hostile population.

Professor Kretzmer concludes that the Israeli High Court’s insistence on bringing the government’s actions in the territories under a legal umbrella has indeed restrained the occupation authorities. In notable decisions, the Court held that the establishment of Israeli settlements in the occupied territories, preventive detention, the interrogation of suspected terrorists, the demolition the houses of terrorists’ families, and the deportation of Palestinian activists must conform to basic norms of civilized, democratic society. While only a few Court decisions were based upon those substantive principles, the justices’ concerted efforts to strengthen procedural...