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Occupation of Justice, The

The Supreme Court of Israel and the Occupied Territories

David Kretzmer

Publication Year: 2002

A critical examination of the decisions of the Supreme Court of Israel in cases relating to the Occupied Territories. The Occupation of Justice presents the first comprehensive discussion of the Supreme Court of Israel’s decisions on petitions challenging policies and actions of the authorities in the West Bank and Gaza since their occupation during the 1967 Six-Day War. Kretzmer addresses issues including: the basis for the Court’s jurisdiction; application and interpretation of the international law of belligerent occupation; the legality of civilian settlements and highway construction; and security measures such as curfews, deportations and housing demolitions. While pertaining to a specific political and legal context, this case study has broader implications regarding how courts in democratic countries act in times of conflict and crisis. It shows that at such times domestic courts tend to close ranks with the executive branch against those elements that are perceived as external threats to society.

Published by: State University of New York Press

Title Page, Copyright, Dedication

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CONTENTS

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pp. vii-viii

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PREFACE

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pp. ix-x

The idea of a general study on the jurisprudence of the Supreme Court of Israel relating to the Occupied Territories first came to me ten years ago, at a time when Israel still maintained full control over the West Bank and Gaza. The Court was inundated at the time with petitions

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INTRODUCTION

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pp. 1-16

The Supreme Court of Israel began reviewing actions of military authorities in the West Bank and Gaza soon after the Israel Defense Forces (IDF) occupied them in the 1967 Six-Day War. In subsequent years this review became a central feature of Israel’s legal and political control

PART I

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pp. 17-

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CHAPTER ONE Jurisdiction, Justiciability, and Substantive Norms

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pp. 19-30

Over the years Israeli governments pursued policies aimed at integration of the Occupied Territories with Israel while refraining from formally annexing the West Bank and Gaza or applying the Israeli legal system in those areas. In theory, at least, the applicable law in those parts of the West Bank and Gaza that are still under IDF control is the law that prevailed...

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CHAPTER TWO Application of International Law

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pp. 31-42

Application of the international law of belligerent occupation in petitions relating to the Occupied Territories raises several related but discrete questions. First, are the rules of international law enforceable in Israel’s domestic courts? Second, assuming a positive answer, is the...

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CHAPTER THREE Interpreting Geneva Convention IV

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pp. 43-56

The Supreme Court has refused to regard Geneva Convention IV as part of customary international law enforceable in domestic courts. Thus, even assuming the Convention’s applicability to the occupation of the West Bank and Gaza, the Court need never have expressed an opinion...

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CHAPTER FOUR The Benevolent Occupant

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pp. 57-72

The law of belligerent occupation recognizes that military needs will be the major concern of every army of occupation. Nevertheless, because the occupying army has control over the occupied territory the occupying power has the duty to take over the first and most basic task of every...

PART II

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pp. 73-

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CHAPTER FIVE Civilian Settlements and Development Projects

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pp. 75-100

Establishment of Israeli civilian settlements in the Occupied Territories dramatically exposed the dissonance between government policies and the formal legal framework of belligerent occupation. According to the international law of belligerent occupation, the political status quo of

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CHAPTER SIX Residnency and Family Unification

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pp. 101-112

In previous chapters I reviewed the Court’s attitude to the legal status of the Occupied Territories. I shall now review the status of the Palestinian residents of the Territories. This question has arisen in two major contexts: residency status and family unification....

PART III

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pp. 113-

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CHAPTER SEVEN Security Powers

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pp. 115-126

Arguments of security or military necessity underlie many of the issues discussed in the preceding chapters. Until the argument was rejected in the Elon Moreh case,1 the authorities successfully argued that requisition of private land for establishment of civilian settlements could be justified...

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CHAPTER EIGHT Liberty and Security of the Person

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pp. 127-144

Restrictions on freedom of movement of residents in the Occupied Territories may be imposed in a number of ways. The most drastic restriction takes the form of a curfew that restricts the right of all people in a given area to leave their homes during stipulated times. In all cases in which attempts have been made to...

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CHAPTER NINE House Demolitions

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pp. 145-164

House demolitions and deportations are the most extreme security measures used against individuals by the military authorities. The frequency with which the authorities have employed house demolitions has varied over the years. According to official sources, 1,265 houses were demolished...

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CHAPTER TEN Deportations

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pp. 165-186

One of the most controversial security measures used by military commanders in the Occupied Territories has been deportation of residents on security grounds. The most extreme use of this measure was the deportation in late 1992 of 415 alleged activists of the Hamas and Islamic...

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CONCLUSIONS

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pp. 187-198

In its decisions relating to the Occupied Territories, the Court has rationalized virtually all controversial actions of the Israeli authorities, especially those most problematic under principles of international humanitarian law. The text of article 49 of Geneva Convention IV is pellucid: it...

NOTES

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pp. 199-248

SELECT BIBLIOGRAPHY

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pp. 249-256

INDEX

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pp. 257-262


E-ISBN-13: 9780791488805
E-ISBN-10: 0791488802
Print-ISBN-13: 9780791453377
Print-ISBN-10: 0791453375

Page Count: 272
Publication Year: 2002

Series Title: SUNY series in Israeli Studies
Series Editor Byline: Russell Stone

Research Areas

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Subject Headings

  • Civil rights -- Israel.
  • Military government -- West Bank.
  • Military government -- Gaza Strip.
  • Jurisdiction -- Israel.
  • Israel. Bet ha-mishpaṭ ha-gavoha le-tsedeḳ.
  • Courts of last resort -- Israel.
  • Political questions and judicial power -- Israel.
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