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

INTRODUCTION

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 over these territories. The Court has handed down hundreds of decisions covering a wide scope of actions in the Occupied Territories, ranging from establishment of civilian settlements, changes in local law, and building of highways to deportations, house demolitions, and administrative detention. The Supreme Court’s decisions relating to the Occupied Territories constitute a unique body of jurisprudence on the international law of belligerent occupation. However, it is not only the doctrinal side of this jurisprudence that is of interest. Entry into the arena of occupation created the potential of dissonance between the Court’s regular jurisprudence and its jurisprudence of occupation. It also raised questions about judicial decision-making in a highly charged conflict situation, and the way courts handle the inherent tension between security arguments and individual rights in such a situation. Judicial review has frequently been mentioned in response to criticism of government actions in the Occupied Territories. In a book published by the Israel Section of the International Commission of Jurists in 1981, the writers state that “the ability of residents of the administered areas to petition the Israeli High Court of Justice does more than anything else to guarantee the maintenance of the rule of law.”1 Writing twelve years later, lawyers in the Military Advocate-General ’s Unit of the IDF declared: 1 INTRODUCTION This judicial review by Israel’s highest Court has not only provided a form of redress for the grievances of Area inhabitants and a safeguard for their rights; it has also provided a powerful symbol and reminder to the officials of the Military Government and Civil Administration of the supremacy of law and legal institutions and of the omnipresence of the Rule of Law wherever Israeli officials’ writ may run.2 The perception of judicial review as a guarantee of the rule of law rests, first and foremost, on the enormous prestige the Supreme Court enjoys both in Israel and among members of the legal and judicial professions in other countries. It is bolstered by the lack of precedent for review by domestic courts over acts of military authorities in occupied territory. Cases in which the Court has interfered in decisions of the authorities, such as the Elon Moreh, Jerusalem Electricity Corporation, ACRI, and Morcous cases,3 are also cited as evidence of legal constraints placed on authorities through the mechanism of judicial review.4 At times members of the defense and military establishment and some right-wing politicians have displayed an antagonistic attitude to the Court that reinforces the “rule of law perception.” They have claimed that judicial review hampers the effectiveness of measures adopted to maintain order, thereby impairing the military’s efforts to control the local population. Perhaps the bluntest expression of this view was presented by the late prime minister and minister of defense, Yitzchak Rabin, in explaining why he had agreed to hand over control of Gaza to the PLO. Rabin stated: “I hope that we will find a partner which will be responsible in Gaza for the internal Palestinian problems. It will deal with Gaza without the problems of the High Court of Justice , without the problems of B’Tselem and without the problems of all kinds of sensitive souls and all kinds of mothers and fathers.”5 Actually, the Court has interfered infrequently in decisions of the military. The negative attitude of critics stems mainly from the notion that mere accountability of the military to an outside body undermines its authority, that delays caused by judicial review reduce the deterrent effect of some measures (such as deportations and house demolitions), and that pressure by judges or even the threat of judicial review have often forced authorities to back down from proposed action. From a radically different perspective, it may be argued that the main function of the Court has been to legitimize government actions in the Territories. By clothing acts of military authorities in a cloak of legality , the Court justifies and rationalizes these acts. Even if this has not produced legitimization in the eyes of residents of the Occupied Territories themselves, it has done so both for the Israeli public, in whose name the military authorities are acting, and for foreign observers sympathetic to...