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

CHAPTER SEVEN Security Powers

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 on security grounds. The Court also held that security considerations justified expropriation of land for constructing highways. In the VAT case,2 the Court went even further and held that imposition of VAT in the Occupied Territories, following its introduction in Israel, could be explained on the basis of security demands. We must now consider specific security measures used by the authorities. Two features characterize these measures: (1) their declared purpose is to contain a security risk and (2) they involve severe restrictions on the rights or liberties of the individual. Some of the measures (such as house demolitions) are declaredly punitive; others (such as administrative detention or curfews) are declaredly preventive, although their effect is obviously punitive. A significant proportion of the petitions submitted to the Supreme Court by residents of the Territories relate to such security measures. In this chapter I address a number of issues connected to the use of security powers. I begin by discussing the reality of the security concerns that faced the authorities, the dynamics of security arguments in a highly loaded political situation, and the general approach of the Supreme Court in reviewing security questions. I then proceed to review the 115 CHAPTER SEVEN SECURITY POWERS BASIC ISSUES Court’s attitude on two questions that touch on general arguments relating to the legality of security measures: (1) whether the Defence (Emergency ) Regulations, 1945, on the basis of which many of the security measures (such as deportations and house demolitions) are carried out were still in force in the West Bank and Gaza when the IDF entered those areas in 1967, and (2) whether the provisions in the local law in the Territories are subject to the principles of international law that place constraints on a belligerent occupant. In the chapters that follow I discuss the Court’s decisions relating to curfews, administrative detention , interrogation practices, house demolitions, and deportations. REALITY OF SECURITY CONCERNS Whatever one’s view of the prolonged occupation or of the policies followed by various governments both in the specific context of the Occupied Territories and in its general conflict-management strategy, so long as no political decision is made to withdraw from all the Territories the military authorities are confronted with the realities of the situation there. These have always included a host of security concerns. Some, such as the security of Israeli settlements and settlers, were the direct result of government policies and actions. Others were a function of the very nature of the IDF’s presence as an occupying force in the Territories , which is anathema to the local population. These were paramount in the initial stage of the occupation during which there was some armed resistance. They were also dominant after the Intifada started in December 1987 and the IDF met with wide-scale violent demonstrations, throwing stones and Molotov cocktails at vehicles and other targets, tire-burning on major highways, and other forms of low-scale violence to which no army of occupation could remain indifferent.3 Another major concern relates to actions of terrorist groups against civilian targets in the Occupied Territories and in Israel itself. The border between the Occupied Territories (especially the West Bank) and Israel cannot be sealed, and it is not difficult for a resident of the West Bank who decides to carry out a terrorist attack against a civilian target in one of Israel’s towns or cities to reach his or her destination. Terrorist attacks against targets in Israel have at times imposed an enormous burden on the security authorities whose mission is to protect the security of the Israeli public. The military authorities cannot be oblivious to security threats and are forced to adopt measures to contain them. In a society that prides itself on adherence to the rule of law and fundamental human rights standards, any such measures should conform to accepted legal principles and rules of international humanitarian law. The object of this 116 THE OCCUPATION OF JUSTICE study is not to examine whether it would have been possible to maintain a long-term occupation without resort to repressive measures of one sort or another, whether the security strategies...