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

CHAPTER ONE Jurisdiction, Justiciability, and Substantive Norms

JURISDICTION 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 when the IDF entered the area, subject only to changes introduced by military order.1 The Supreme Court of Israel is not an international forum. It stands at the pinnacle of the judicial branch of Israel’s institutions of government; its jurisdiction and powers are defined in the laws of the State of Israel. It is not self-evident that the Court’s power of review extends to actions carried out by the military in areas that are not part of Israeli sovereign territory and in which the Israeli legal system does not apply. There is precedent for the view that military commanders in occupied territory are not subject to the jurisdiction of the courts in their home country.2 When residents of the Occupied Territories first petitioned the Supreme Court, sitting as a High Court of Justice, the government’s legal advisors had to decide whether to contest the Court’s jurisdiction over such petitions. Meir Shamgar, attorney-general in the formative years of the Court’s jurisdiction over the Territories, decided on a policy that was 19 CHAPTER ONE JURISDICTION, JUSTICIABILITY, AND SUBSTANTIVE NORMS to guide government counsel in years to come: the authorities would ask the Court to rule on the merits of the petition without entering into the question of jurisdiction.3 The reasons for this policy were probably varied . Mr. Shamgar has written that his basic idea was to ensure some form of external control over the actions of the military so as to prevent arbitrariness and maintain the rule of law.4 This would be in line with the prevailing philosophy of the Court that “in areas in which the Court does not intervene the principle of rule of law is flawed.”5 It is fair to assume, however, that a further reason could well have been the notion that petitions to the Supreme Court of Israel by residents of the Occupied Territories would imply the recognition of Israel by the petitioners, as well as political legitimization of Israeli rule over the Territories.6 In the first reported decision dealing with the legality of actions taken by the military authorities in the Occupied Territories, the Christian Society case,7 the jurisdiction question was not even mentioned by the Court. This was somewhat surprising, as the question of jurisdiction is an issue that a court will raise on its own initiative. From the Court’s remarks in later cases, however, it seems that the authorities had in fact declared that they did not contest the Court’s jurisdiction.8 In the Electricity Corporation case, decided shortly after the Christian Society case, the Court simply stated that as in “previous matters that have come before this court (recently, for example, H.C.337/71 [the Christian Society case—D.K.]) counsel for the first two respondents (the minister of defense and the commander of the area) did not contest the jurisdiction of this court, to entertain petitions relating to the activities of an Israeli military commander in the area of his military rule.”9 Resting jurisdiction solely on the respondent’s failure to contest the issue was not a path the Court was eager to follow, for it implied that if at some future stage the authorities were to contest the issue, they could undermine the status of the Court’s previous decisions. Thus, it was only a matter of time before the Court chose to discuss the jurisdiction question . In the Rafiah Approach case, Justice Landau mentioned that the authorities had once again refrained from contesting the Court’s jurisdiction . He explained that the Court would therefore assume without ruling on the matter, that the jurisdiction exists on the personal level against functionaries in the military government who belong to the executive branch of the state, as “persons fulfilling public duties according to law,” and who are subject to the review of this court under section 7 (b) (2) of the Courts Law, 1957.10 As judicial review of IDF acts in the Territories became a permanent feature of Israeli legal and political life, the legal basis for this jurisdic20 THE OCCUPATION...