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

CONCLUSIONS

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 prohibits all deportations of protected persons from occupied territory. Yet, contrary to the view of most, if not all, objective commentators, the Supreme Court ruled that deportations carried out by military authorities on security grounds are not covered by this prohibition. Punitive house demolitions are incompatible with fundamental principles of international humanitarian law, human rights standards, and penal law. The Court consistently ignored these principles or refused to apply them on the basis of highly questionable arguments. Establishing Israeli settlements in occupied territory is not only controversial politically: it is widely regarded as incompatible with the international law of belligerent occupation. The Court did indeed strike a serious blow against establishment of settlements on private land requisitioned for military purposes. However, it refused to rule whether establishing settlements is compatible with the final paragraph of article 49 of Geneva Convention IV. It otherwise legitimized the settlement policy by accepting that establishing civilian settlements may be regarded as a military need, by refusing to interfere with use of state land for settlements, and by including settlers as part of the local population for the purposes of article 43 of the Hague Regulations. The Court also allowed wide-scale changes in local law, thereby blunting the force of article 43 of the Hague Regulations . The Court’s courageous 1999 judgment on the interrogation methods of the General Security Service was a victory for the rule of law and legal values. However, this judgment did not relate to policies or 187 CONCLUSIONS actions in the Occupied Territories themselves. Furthermore, the Court prevaricated for a long time before delivering its judgment, during which time the illegal practices were widely used against Palestinians. In its jurisprudence relating to Israel itself, the Supreme Court of Israel has earned a well-deserved reputation as a rights-minded court. It created a judicial bill of rights before enactment of the Basic Law: Human Dignity and Liberty, and offered a fair degree of protection for the individual against governmental arbitrariness. One of the foundations of its jurisprudence has been a principle of interpretation in favor of human rights. According to this principle, when interpreting statutory instruments that grant governmental authorities power to restrict rights and liberties of the individual, the Court must adopt the interpretation that is least restrictive of those rights and freedoms. This rights-minded approach is generally conspicuous by its absence in decisions relating to the Occupied Territories. The jurisprudence of these decisions is blatantly government-minded. As discussed in chapter 3, the Court stated that in interpreting Geneva Convention IV it would adopt the interpretation least invasive of state sovereignty. Application of this canon of interpretation to an international instrument dealing with humanitarian law epitomizes the government-minded approach of the Court. The manner in which the Court interpreted regulation 119 of the Defence Regulations (that permits punitive house demolitions) and the notion (reiterated on more than one occasion) that demolition of a terrorist’s family home can be justified as a general deterrent measure are further examples of the Court’s departure from accepted standards of human rights protection. Allowing the authorities to deny the right of West Bank and Gaza Palestinians who have taken up residence elsewhere to return to their own country, by citing “vital interests of the state” that are not spelled out, is another example of this mind-set. In some cases the Court did indeed incorporate part of its “domestic philosophy” of human rights protection in cases relating to the Occupied Territories. Thus, in the Morcous case1 the Court applied its principle of non-discrimination in ordering the authorities to supply the gasmasks supplied to Israeli settlers to Palestinian residents of the West Bank. In the Electric Co. (2) case2 the Court was receptive to the argument that making the Palestinian residents of the West Bank dependent on an Israeli electricity supplier was not necessarily in their interests. However, these cases are the exception and do not reflect the Court’s jurisprudence on substantive issues. While the Court failed to intervene on substantive matters, it made a concerted effort to strengthen the procedural constraints on use of governmental powers. Thus, the Court “judicialized” the procedure before the appeals committees in deportation cases; it held that a hear188...