The Wall and the Gate
Israel, Palestine, and the Legal Battle for Human Rights
by Michael Sfard
The Wall and the Gate
Israel, Palestine, and the Legal Battle for Human Rights
by Michael Sfard
THE LAW AND THE COURT
The legal struggle for human rights, like any legal dispute, takes place mostly (though not only) in the courtroom. The swords wielded in this battle are the legal norms—that is, the rules—of any given legal system; these determine what is permitted, what is prohibited, and what powers, rights, and obligations are allowed to people, corporations, and public authorities. Without these two conditions—a law and a court—there is no legal battle.
The West Bank and Gaza Strip are not part of the State of Israel. Other territories occupied in 1967, the Golan Heights and East Jerusalem, were put under Israeli law and administration by the legislature (an act that is not recognized by the international community as it defies international law that prohibits the annexation of a territory seized by force).1 Therefore, from Israel’s perspective, its courts have jurisdiction to hear any dispute that arises in the Golan Heights and East Jerusalem and must make decisions according to Israeli law.
The West Bank and the Gaza Strip have, at least thus far, not been annexed by Israel, and so, even from Israel’s own perspective, its laws and administration do not apply there.
So in which theater can the legal battle against human rights violations in the West Bank and Gaza Strip take place? Which law applies? Which court has jurisdiction to oversee its implementation? The Israeli authorities have devised various answers to these questions, which define the field in which the internal legal battles affecting the Occupied Territories are fought.
THE HIGH COURT OF JUSTICE
On August 5, 1971, in response to a labor dispute between the Christian Society for Holy Places, an association that ran a hospital and an orphanage in Bethlehem, and its employees, the military commander of the West Bank decided to introduce an amendment to the Jordanian labor law. The domestic pre-occupation laws that were in force in the West Bank were a mixture of Jordanian laws, British Mandatory ordinances, and Ottoman laws. The amendment concerned the appointment of members of the mediation council that helps resolve labor disputes. However, the Christian association, through its Israeli lawyer, Shlomo Tusya-Cohen, filed a petition with Israel’s High Court of Justice to annul the amendment. Tusya-Cohen argued that the military commander had no power to change labor laws. The High Court dismissed the argument by a majority of two, who believed the exception that allows the occupying power to amend local laws applied in the case.2 Thus the High Court heard and ruled on an argument regarding the legality of an act that—from start to finish—took place outside the state and was not governed by Israeli law.
The courts are one of the foremost expressions of a country’s sovereignty. They are the official institutions that interpret law enacted by the country’s legislature and oversee its implementation. Just as the territorial application of state laws has geographical boundaries (for the most part, the country’s borders), so does the jurisdiction of its courts. Just as the imposition of one country’s laws on another is a violation of the other country’s sovereignty, it is also a violation for one country’s courts to adjudicate events that have occurred in foreign territory.
When it comes to an occupation, matters are obviously more complicated. The sovereign has been defeated and no longer exerts effective control over the territory, which is now controlled by the occupation authorities. Do they bring their judicial institutions with them? In the case of the Christian Society, this question never even arose. The court made its decision on the merits of the case without first addressing its jurisdiction. Israel’s government, for its part, decided not to object, even consenting to the High Court’s jurisdiction de facto, without ever defining it as a matter of law.3
The military advocate general at the time, Meir Shamgar, who would go on to become president of the Supreme Court, has written that this was a deliberate decision of the authorities. Shamgar claims legal advisers sought judicial review of the military administration’s actions as a way of preventing arbitrary conduct and ensuring the rule of law.4 A more skeptical explanation is that the government wanted judicial review for political reasons, perhaps even for public relations, to provide a sense that the occupation is not a naked use of blunt force, but rather a series of acts that are subject to serious judicial review.*5 In any event, the state agreed to the litigation and did not deny the court’s jurisdiction. The justices, for reasons that remain unclear, never questioned their power to rule on an issue that relates to matters outside Israel’s borders. And so, quietly, without hesitation or doubt, Israel’s judiciary took upon itself the power to hold judicial review over the acts of the state’s authorities in occupied, non-annexed territories.
This might seem self-evident in the present day, but for a jurist in the early 1970s it was an exceptional decision and far from obvious. In the early 1950s, for instance, a case was brought before the American court by five German soldiers who had been convicted of war crimes during World War II, and were being held in prison in an American-occupied part of Germany. The petitioners sought an order to compel their release. The US Supreme Court held that American courts have no jurisdiction to hold judicial review over acts of the authorities that take place outside the country’s sovereign territory.6 That approach has been mitigated over the years, mainly through petitions relating to prisoners held in Guantánamo Bay in Cuba after the 9/11 terrorist attacks,7 but at the time the Israeli High Court of Justice ruled in the Christian Society case, its decision was highly unusual.
But it seemed quite natural for the High Court and Israel’s government to take this approach, to expand its jurisdiction as Israel expanded the territory under its control. To understand why, we need to become better acquainted with the character of this particular judicial body. The High Court of Justice was founded in 1922 by the British Mandate authorities. The structure of the Mandate’s judicial system contained three main instances—the Magistrates Courts, the District Courts, and the Supreme Court, which was the final appellate address.8 The High Court—distinct from the other three instances—was established following a model that existed in England since 18759 to concentrate in one court all powers to issue orders to state authorities and government officials. The procedure in the High Court begins with a lawyer’s petition to the court for an order nisi (a conditional order) directed at the authorities. The court then decides whether there are grounds to compel the state officials to mount a defense. Only after the order nisi has been issued and the relevant authority has responded does the court hold an oral hearing, followed by a decision.
However, in contrast to the United Kingdom, where the High Court of Justice10 is a court of first instance, with appellate courts above it, Mandate rule instated the High Court of Justice of Palestine–Eretz Israel as a bench within the top instance, the Supreme Court. This means that in Israel the final appeals court in civil and criminal matters, with its justices, also serves as the first administrative instance. It is not clear why the British entrusted judicial review over state authorities to the final instance, but the leading explanation among scholars is that they wanted to avoid a situation where local justices, who were not British and who served in the lower courts, would have the power to issue orders directed at Mandate authorities.11 While there were non-British justices serving in the Mandatory Supreme Court, the chief justice, who held many administrative powers, including the power to appoint panels, was necessarily British. In addition, an order signed by the British high commissioner in 1924 stipulated that all High Court panels had to include at least one British justice.12
This special construct, which sends civilians to file petitions against state authorities directly with the top court, was passed down to Israel with very few changes made to it. Israel’s High Court of Justice, also serving as the administrative bench of the Supreme Court, has the power to issue injunctions, mandamus (or mandatory) orders, and other orders “to State authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law, to act or refrain from acting while lawfully exercising their office.”13 In addition, the High Court has general powers, framed very broadly, to hear matters regarding which “it deems it necessary to provide relief for the sake of justice.”14 This is, without a doubt, an odd power for a judicial instance that exists to grant remedies according to the law, rather than according to justice. Historical research indicates that the phrase “for the sake of justice” likely originated in a mistranslation of the Mandatory definition for the High Court’s power to issue orders required “for the administration of justice.”15 This mistranslation penetrated Israeli law and has had great influence in shaping the notion of the High Court as one vested with the power to deliberate and make decisions when “justice,” not only formal law, so requires.16
This constitutional construct, which defines the power of the judicial instance according to its objects—state authorities and officials—might explain why the High Court easily considered that its jurisdiction extends to wherever those authorities exercise control. And indeed, in the Christian Society case—the first reported case in which the court ruled on a petition against the Israeli military commander in the Occupied Territories,17 the justices exercised their ordinary power over “State authorities,… local authorities,… their officials, and … other bodies and persons holding public office under the law.” The military, even when acting as an occupying power, is part of Israel’s executive branch. Its powers are determined by Israeli law and it fulfills a public function.
A few years later, rather than simply relying on the state’s voluntary consent to its intervention the High Court explained why its territorial jurisdiction does not end at the Green Line: its justices determined that the court’s power follows “persons holding public office under the law” personally.18
All this means that the legal battle for the human rights of the occupied has its court, the Supreme Court of the State of Israel sitting as the High Court of Justice. Still, a legal battle also needs law, a normative framework, a set of rules by which the court decides whether the actions of the military regime are legal or not. What is the law of the occupation?
THE LAWS OF OCCUPATION
When the IDF took control of the Gaza Strip and the West Bank, the commanders of the two areas issued proclamations stating that the law in force prior to the occupation would remain in place so long as it did not conflict with any future orders. The law applicable in Gaza for the next four decades and in the West Bank to the present day19 is founded on these proclamations and on thousands of orders signed over the years by a succession of military commanders. In addition, the Israeli legislature (the Knesset) has applied some laws extraterritorially to Israelis living in the Occupied Territories, and the military commander has adopted some Israeli laws and applied them to the settlements by military decree. This way, “enclaves” of Israeli law were created that encompass the settlers. The outcome is a partial dual legal system, one for Palestinians and one for (Jewish) Israelis who reside in the same territory.20
But where do the military commanders derive the power to declare which laws apply and which do not? Since when is a military commander a legislator? One could, of course, argue that the power comes from their guns, and this would make sense as a political response, but the legal answer is different.
Conflicts between states, or between states and external entities, are regulated by international law. Like domestic law, international law is a system of norms that determines what is permitted and what is prohibited, as well as the powers, rights, and obligations of those to whom it applies. International law regulates various areas of international relations, such as trade, diplomatic relations, the work of international institutions like the United Nations and its agencies, and mechanisms for peaceful resolution of conflicts. One of the oldest and most important branches of international law is the laws of war (or Laws of Armed Conflict). These laws, which some say date back to antiquity and whose modern version has been under accelerated development since the nineteenth century, have two branches: jus ad bellum, the laws that govern when it is permissible to use force in international relations; and jus in bello, which governs how force is used and determines what may and may not be done on the battlefield (also known as international humanitarian law, since its core aim is to protect people not taking part in hostilities from the effects of war and to mitigate human suffering). These laws apply regardless of the legality of the decision to use force or its justification.21
One of the situations the laws of war seek to regulate is the eventuality of a military gaining effective control over a territory outside its own country, that is, a situation of occupation. International humanitarian law accordingly includes a set of regulations and principles intended to determine what powers an occupier has in the occupied land and what restrictions and prohibitions apply to it. These are the laws of occupation, and they govern not only the relationship between the occupying power (the term used in international law for the occupying country) and the occupied land, but also between the occupying power and the civilians who find themselves under occupation. These laws have been codified in two major international conventions: The Fourth Hague Convention Respecting the Laws and Customs of War on Land from 1907 and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War from 1949. Israel signed and ratified the Geneva Convention. The Hague Convention was signed before Israel was established, but is still applicable as it reflects binding international custom.22 Today, the Geneva Convention is also considered customary.
The laws of occupation are based on three principles aside from the prohibition on annexation: occupation is not sovereignty; occupation is temporary; occupation is a trusteeship by the occupier for the occupied.23 A thorough explanation of what these principles mean exceeds the scope of this book, but for our purposes, we can say that these laws aim to prevent anarchy in the occupied territory and restore security and civil life to the extent possible under occupation. To do so, they allow for the institution of a new, temporary regime and give the occupier the powers required to fulfill its duty—powers that would have been held by all branches of the previous regime. Thus the military commander, under powers vested in him through international law, has legislative authority in the occupied territory, and the orders he issues constitute primary and secondary legislation. He also serves as the head of the executive branch in the occupied territories, and the officers under his command have all the powers previously held by the defeated government. The military commander may also set up military courts with jurisdiction over security matters.
The laws of occupation do offer important, if few, checks and balances for what is expected to be an authoritarian regime (“authoritarian” in the sense that its subjects are not involved in the process of determining the norms that govern them). First, the military commander is expected to preserve the existing situation as much as possible. He may not amend local legislation unless such amendment is absolutely necessary for the fulfillment of his obligation. He is also expected to make no long-term changes in the occupied territory, as such changes are an expression of sovereignty, and the military commander is not a sovereign but a temporary administrator. Second, managing the territory, the military commander must serve the interests of the occupied population,24 an expression of the fact that he holds the territory in trust. Third, he must avoid violating the fundamental rights of the occupied population and protect it from harm by others.
Most of the rights of the occupied population are not absolute, and security considerations could justify their proportional violation. There are, however, a few rights bestowed on the occupied without exception, and these may not be violated, no matter the circumstances. One such inviolable right is the prohibition on confiscating the property of the occupied.25 Another is the prohibition on expelling members of the occupied population outside the occupied territory.26 A third is the prohibition on transferring the population of the occupying power into the occupied territory and creating a community of occupiers alongside the occupied.27
* * *
AND SO THE answer to the question of which law applies in an occupied territory has four layers. The first is the law that was in effect prior to the occupation, insofar as the military commander has not issued orders to change it. In the West Bank, this is Jordanian law. In Gaza, it is the military law imposed by Egypt during its occupation of the Strip.28 The second layer comprises military law, or the orders issued over the years by the military commanders. Thousands of such orders have changed the laws predating the occupation beyond recognition, and in every possible sphere. The third layer is Israeli administrative law. This applies to the actions of the Israeli rulers in the occupied territory and regulates how authorities may exercise their powers and discretion. The topmost legal layer is the international laws of occupation. These make up the highest normative order, and they trump any contradictory provisions in the lower layers. If what remains of Jordanian law or a military order permits something that is explicitly prohibited under the laws of occupation, those provisions are legally null and void. The laws of occupation function somewhat as a constitution of the occupied territory and they govern the fundamental principles of the relationship between the regime of occupation and its subjects.*
For this reason the High Court of Justice, when it was asked in the case of the Christian Society whether the military commander had exceeded his powers by giving an order to change Jordanian labor law, examined the question through the lens of the branch of international law that addresses belligerent occupation. The judges disagreed over whether, in that particular case, the military needed to amend local law to uphold its obligation to restore civil life, but they all concurred that the legality of the order was governed by the norms of the laws of occupation.
Israel’s government, which, for political and ideological reasons, wanted to avoid defining the territories as “occupied” and maintain its claim internationally that they are “disputed,” adopted a rather strange position on the applicability of the laws of occupation to the territories it was occupying. According to its position, the territories were not “occupied” in the legal sense and therefore the laws of occupation did not apply. However, the government “voluntarily” undertook to uphold the humanitarian provisions of these laws.29 The strangeness of this stance is that when it comes to legal norms one cannot pick and choose. Either the norms apply or they do not. And if the laws of occupation do not apply, what is the law that governs Israel’s military rule in the Occupied Territories?
In keeping with the government’s position, the state advised the court in the Christian Society case that it was not being asked to rule on the applicability of the laws of occupation, since the military commander was in any case “doing as the conventions command.”30 And during the first decade of the occupation, cases continued to be ruled according to those conventions on the shaky grounds that the state agreed to their application while preserving its argument that they do not, in fact, apply. However, in the years that followed, the High Court stopped viewing the state’s consent as a condition for applying the laws of occupation. Fierce disputes arose between petitioners and respondents and among the justices themselves over what exactly the laws of occupation say and which parts are binding on Israel. However, the jurisprudence of the High Court gradually and carefully came to accept that the international laws of occupation are the legal field governing Israel’s control of the Occupied Territories.31
With that, the way those laws have been applied and their interpretation by the High Court have not infrequently gutted their core humanitarian purpose, prompting fierce criticism. What follows are the pivotal events, cases, and decisions that ultimately shaped the reality in the Occupied Territories.
Copyright © 2018 by Michael Sfard
Translation copyright © 2018 by Maya Johnston