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

CHAPTER FOUR The Benevolent Occupant

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 government: maintaining law and order and facilitating everyday life. Furthermore, since political control over new territory must not be achieved by force but by international negotiation, the occupying power may not use the occupation as a means of changing the political status of the occupied territory. The latter principle is expressed in the restriction imposed by international law on the occupying state’s power to change laws in occupied territory. In the drafting stage of the Hague Regulations, these two obligations of an occupying power were dealt with in separate articles.1 However , in the final version of the Regulations, they were both included in article 43 that states: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Accepting that article 43 reflects customary international law, which is enforced in domestic courts, forced the Supreme Court to grapple both with the general questions of interpretation that this article poses, as well as those arising out of the specific political context. By forging a close connection between the two obligations included in article 43, the Court subjected the restrictions on the legislative power of the military 57 CHAPTER FOUR THE BENEVOLENT OCCUPANT to the duties imposed on the occupant in the first part of article 43. The duty to respect the laws in force unless the occupant is absolutely prevented from doing so were relaxed by the Court, and the occupying power’s duty “to restore, and ensure . . . public order and safety” became the nexus of all questions regarding article 43. The first issue I shall address therefore is the way the Court has interpreted the duty to restore and ensure public order and safety. DUTY TO RESTORE AND ENSURE PUBLIC ORDER AND SAFETY The Notion of Civil Life According to prevailing notions at the time the Hague Regulations were drafted, the main task of government was to prevent disruptions to public order rather than to take responsibility for social and economic welfare .2 By the time Israel took over the Occupied Territories in 1967, conceptions of government had changed. This change is reflected in the decisions of the Supreme Court that define the scope of the occupying power’s duty to restore and ensure public order and safety. The first published decision dealing with the Occupied Territories, the Christian Society case,3 dealt with an amendment introduced by the military government into the Jordanian Labor Law to facilitate mandatory arbitration of labor disputes.4 The petitioner, a charitable organization that ran a hospital in Bethlehem, was involved in a dispute with the hospital staff. In its petition to the Supreme Court the petitioner argued that the amendment to the Jordanian law exceeded the powers of a belligerent occupant under article 43. In addressing this argument Justice Sussman pointed out that the English translation of article 43 does not do justice to the original French text. The French text refers to the duty of the occupying power to restore and ensure “l’ordre et la vie publique,” which should be translated as “public order and civil life” (rather than public order and safety).5 This implies that the occupant’s duty is not confined to preventing breaches of public order; it encompasses restoring and ensuring “the whole social, commercial and economic life of the community.”6 The occupying power must take account of changing circumstances and adopt measures, including legislative measures, needed to ensure “civil life.” As the matter was put in a later decision, ensuring public order and civil life involves “exercising regular administration, with all the branches accepted in our times in a well-ordered state, including security, health, education, welfare , as well as quality of life and transportation.”7 All three judges in the Christian Society case agreed with the wide view of “public order and civil life.” However, they were divided on a 58 THE OCCUPATION OF JUSTICE major question of principle: how is one to judge...