The Diminishing Status of International Law in Israel's Supreme Court Decisions Concerning

Transcription

1 The Diminishing Status of International Law in Israel's Supreme Court Decisions Concerning the Occupied Territories Tamar Hostovsky Brandes Introduction Over a decade ago, Daphne Barak-Erez wrote an article for I CON examining the relationship between international human rights law and domestic law in the decisions of the Supreme Court of Israel. 1 Barak-Erez argues that, on the whole, the reliance of the Court on international law has grown since the mid She noted that the role of international law was becoming significant especially with regard to matters that generate interest among the international community, and, in particular, in decisions that referred to the territories occupied by Israel since 1967 (the Occupied Territories ). 2 Barak-Erez characterized the jurisprudence of the Court during this period as the new Israeli jurisprudence inspired by international law and concluded that this jurisprudence highlights the potential international law has for enhancing the protection of human rights in Israel. This article examines the attitude of the Supreme Court of Israel towards international law in the decade that has passed, focusing on cases that regard the Occupied Territories. The article argues that the status of international law in the Court s decisions that regard the Occupied Territories has, overall, declined. The article argues that while the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Courts' decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law. Senior Lecturer, Ono Academic College, Faculty of Law 1 Daphne Barak-Erez, The International Law of Human Rights and Domestic Law: a Case Study of an Expanding Dialogue, 2 ICON 611 (2004). 2 Id.,at 632.

2 The article examines several possible explanations for this shift. The obvious explanation ascribes the difference to the changes that have taken place in the Court s composition. 3 Different judges have different attitudes towards international law, and judges that hold a sceptic attitude towards international law, or are less familiar with it, will be less inclined to apply it. 4 This article argues that while this explanation is probably correct, the turn away from international law rests on more than a normative stance towards the binding force of international law. The article argues that a close examination of the past decade's decisions reveals that the difference between the decisions of this decade and the decisions of the decade that preceded it is not so in the Court s willingness to uphold the state s actions in the Occupied Territories or declare them illegal, but in the decisions reasoning and especially in the judicial rhetoric regarding international law. While decisions delivered in the previous decade emphasize the importance of compliance with international law, even if only to uphold the state s action and conclude that such actions are compatible with international law, such emphasis is absent from decisions delivered in the recent decade. The article suggests that the difference between the two Courts' approaches is rooted in a different perception of the role of the Court in relation to the international community. Between the mid-1990 s and the mid-2000 s, the Court, under former Chief Justice Barak s leadership, perceived itself to be part of the "Global Community of Courts" 5, a transnational legal community of international and national courts engaging in an ongoing dialogue, reading and citing each other opinions and participating in what they perceive as a common judicial enterprise. 6 The Court thus directed its decisions not only to the Israeli public also the international community and, in particular, to the international legal 3 The most important change is this regard is the retirement of Chief Justice Barak, which took place in However, Barak s retirement alone cannot explain the shift, since the decline of the status of international law can also be identified in the decisions of judges that were inclined, during the New Jurisprudence era, to refer extensively to international law, such as Justice Beinisch. 4 For the relevance of judges attitudes towards international law to their inclination to apply it see: Graham Hudson, Neither Here nor There: The (Non-) Impact of International Law on Judicial Reasoning in Canada and South Africa, 21 Can. J.L. & JURIS. 321 (2008). 5 Anne-Marie Slaughter, A Global Community of Courts, 44(1) HARV. INT L L.J. 191 (2003), Barak-Erez, id, at Slaughter, id., at 193. See also: Eyal Benvenisti, Reclaiming Democracy: the Strategic Uses of Foreign and International Law by Domestic Courts, 102 AJIL 241 (2008), Craig Scott & Phillip Alston, "Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise" (2000) 16 South African J. Human Rts 206 (2000).

3 community, referred to by Schachter as the invisible college of international lawyers. 7 The current Court, on the other hand, views itself as primarily as a domestic institution. Accordingly, its addresses its decisions first and foremost to the Israeli public. While relying on international law may increase the legitimacy of the Court s decisions among an international audience, the article argues that it may have the opposite effect on an Israeli audience. The recent Court thus retreats from the extensive referral to international law describes by Barak-Erez in favor of an approach that examines issues that arise in the Occupied Territories as if they were, essentially, internal Israeli matters. The role of international law in establishing the legitimacy of the Court and its decisions As indicated above, this article suggests that the shift in the Court's attitude towards international law is rooted, at least in part, in the fact that the current Court addresses primarily a domestic audience while the decisions that belonged to "the new Israeli jurisprudence inspired by international law" addressed both a domestic audience and an international audience. Reliance on international law, it is argued, has a different effect on each of the two audiences. The effect of reliance on international law is tied to the attitude towards international law among a specific audience, and, in particular, to the extent to which international law is perceived as legitimate by this audience. If international law is perceived as legitimate, relying on it can enhance the legitimacy of a decision. If it s the legitimacy of international law is doubted, relying on international law will have the opposite effect. The concept of legitimacy, both generally and in relation to international law, is elusive. Since the publication of Thomas Frank's influential work, legitimacy has served as a central concept in trying to explain why states obey international law and to establish, both generally and in particular cases, either a duty to obey international law or dispute the existence of such duty. 8 Franck, as well as his critics, concentrated on the factor of legitimacy in relation to the binding force and, as a result, to 7 Oscar Schachter, the invisible college of international lawyers, 72 NW U.L. Rev. 217 (1977). 8 THOMAS FRANK, THE POWER OF LEGITIMACY AMONG NATIONS (1990).

4 compliance with international law. 9 This article concentrates, however, not on compliance with international law but on the question whether, and to whom, compliance with international law is deemed important. 10 The answer to this question depends on the social legitimacy of international law. 11 In using the term social legitimacy I refer to the question of whether international law is perceived as legitimate. 12 I do not delve, in this article, into the reasons and explanations for why international law may or may not be perceived as legitimate. With the exception of a brief discussion of democratic legitimacy, which is warranted as it is required in order to understand the current public discourse in Israel regarding the Occupied Territories, the article does not examine other aspects of the concept of legitimacy, such as normative legitimacy of international law. 13 The claim that international law is perceived, at least to some extent, as legitimate in the international arena is supported by the fact that violating international law is generally considered as having a negative effect on a state's reputation in the international arena. 14 The opposite is also true: while the state may be suspected of construing its domestic law in a manner that will promote its interests and justify its acts, international law allegedly provides external, impartial standards for 9 Id, at For a critique of Franck s main arguments see: Andrew T. Guzman, A Compliance-Based Theory of International Law, 90(6) CALIF. L. REV. (2002) 1823, at The two may come together: A court that views international law as normatively binding may very well be more inclined to emphasize the importance of compliance, but the two need not necessarily come together. A court can ensure the state's actions comply with international law without explicitly analyzing and explaining how they comply, and can apply international law rhetoric without a genuine commitment to compliance with international law. 11 For space considerations, that vast literature on the manner in which courts establish their own legitimacy can be mentioned only briefly in this article. In discussing the domestic and international legitimacy of the Israeli Supreme Court, Ronen Shamir argued that legitimacy relates to different audiences who do not necessarily share similar relationships with the institution at issue". Shamir argues that landmark cases in which the Court overruled state actions in the territories served to establish the Israeli Supreme Court as an impartial institution defending human rights both among Israeli citizens and abroad. Ronen Shamir, "Landmark Cases" and the Reproduction of Legitimacy: the Case of Israel's High Court of Justice 24 LAW & SOC Y REV. 781 (1990), While Shamir focuses on the results of petitions, this article focuses on the role of judicial rethoric and reasoning in the quest for legitimacy. This article also argues, as will be further discussed below, that due to changes that have taken place in Israeli society, Shamir s claim regarding the legitimizing effect of landmark cases among the domestic audience may no longer be accurate. 12 This concept of legitimacy is similar to what Fallon refers to as sociological legitimacy, and it draws on the Weberian notion of legitimacy. See Richard H. Fallon, Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1795 (2005). 13 Much of the literature on legitimacy and international law focuses on the normative force and the "legitimacy crisis" in international law. See, for example, Mattias Kumm, The Legitimacy of International Law: A Constitutional Framework of Analysis 15 EJIL Rachel Brewster, Unpacking the State's Reputation, 50 HARV. INT L L.J. 231 (2009)

5 evaluating the state's actions. 15 Basing decisions on international law is thus a mean of establishing the legitimacy of the state actions among the international community. If the Court s decisions are to legitimize the state s actions, it must first establish its own legitimacy. 16 International law thus plays a role not only in legitimizing the state s actions, but also in legitimizing the Court itself. However, a Court s motivation for establishing its international legitimacy is not necessarily need purely instrumental. A Court that perceives itself to be part of an international community will naturally be interested in establishing its reputation and status among its peers. Relying on international law is a mean for the Court to do so, and to take an active part in the joint enterprise of developing international law. 17 The international legal community, being a professional audience, scrutinizes not only in the result of the cases but also to the legal sources applied and in the decisions reasoning. 18 In reviewing the new Israeli jurisprudence inspired by international law", Barak-Erez notes that international law protecting human rights is applied more often in matters that are scrutinized by the international community. 19 The distinction between "domestic" and "international" matters is not based on the existence of relevant norms of international law, as international human rights law contains norms that apply to both categories. The characterization of certain matters as international is thus based on the fact that these matters generate less international interest. The fact that the Court does not readily refer to international law when ruling on "domestic" matters suggests that the distinction between "domestic" and "international" matters is based, at least to some extent, on the perceived 15 Although the Court, may, of course, interpret international law in a manner that accommodate the state s interests, it is possible for jurists familiar with international law to recognize such manipulation and scrutinize the Court s decisions. 16 See Shamir, supra note See Schachter, supra note 7, above. 18 Benvenisti argues that international law, as the source of collective standards, facilitates harmonization among national courts and that " By referring to each other's interpretation of a shared text, they not only signal readiness to cooperate, but also to a certain extent impede the future retreat of one of them from the shared interpretation: as courts carefully watch each other, the one that backs away has to offer an explanation to its peers". Benvenisti, supra note 5, at Barak Erez, supra note 1, at 627.

6 audiences of each of the types of matters and the notion that an international law rhetoric appeals to an international audience. The effect of relying on international law for the purpose of establishing the legitimacy of the Court's decisions domestically is not as clear. 20 In some contexts, where public trust of state institutions is low, relying on international law may enhance the legitimacy of court rulings. 21 In many other situations, however, resorting to international law may undermine their legitimacy domestically. 22 In Israel, the latter appears to be correct. Public opinion in Israel identifies international law with institutions perceived as hostile towards Israel, and international law itself as a set of norms that are bias and often do not sufficiently take into considerations Israel's security needs. 23 While relying on international law may enhance the Court's legitimacy among an international audience, limiting the state's actions based on international law may undermine the Court's legitimacy among its domestic audience. Understanding the Legal Framework: The Status of International Law in Israel and the Governing Law in the Territories The status of international law in the domestic law of Israel was determined by the Court in a series of decisions shortly after the establishment of the state. As in other common law countries, international customary law was ruled to be part of domestic law. 24 However, in accordance with the principle of parliamentary sovereignty, primary legislation that explicitly conflicts with customary international law prevails over such law. Treaties, on the other hand, only become part of domestic law 20 Slaughter argues that " Whether persuasive authority from abroad is in fact persuasive at home will vary sharply from country to country" supra note 5, at Benvenisti argues that international law is applied by domestic Courts in order to "protect domestic political or judicial process from external pressure". Eyal Benvenisti, Reclaiming Democracy: the Strategic Uses of Foreign and International Law by Domestic Courts, 102 AJIL 241 (2008). This discussion, however, is more about the normative legitimacy of resorting to international law than about question of social legitimacy discussed in in article. 22 In the United States, for example, there is a strong opposition to referral to international law, which is often regarded by such opponents as a form of foreign law. See, for example, Robert J. Delahunty and John Yoo, Against Foreign Law 23 For the claim that members of the Knesset perceive international law has hostile towards Israel see Amichai Cohen, Tal Filberg and Yuval Shany, The Influence of Human Rights Law on the Legislation Process in Israel, HUKIM (forthcoming) [in Hebrew]. 24 CA 147/55 Shtamper v. Attorney General, 10 P.D. 5, 17.

7 once they are incorporated into domestic law through legislation. 25 In addition, the Court has applied, both with regard to customary law and with regard to treaties, a "presumption of compatibility", according to which domestic legislation should be interpreted, as far as possible, as compatible with international law. 26 The rules discussed above determine the status of international law within Israel. In the Occupied Territories, with the exception of East Jerusalem and the Golan Heights, to which Israel unilaterally applied its domestic laws, the status of international law is different, as the international law of occupation functions as the governing law. Two points should be noted in this regard. First, under a somewhat unclear rational, the distinction between customary international law and treaty law was deemed by the Court relevant not only with regard to the application of international law within Israel, but also to its application to the Occupied Territories. 27 The Hague convention and regulations, for example, were applied by the Court to the Occupied Territories under the premise that they reflect customary law. Second, Israel has consistently objected to the application of the Fourth Geneva Convention to the territories. The official Israeli position is that the Convention only applies to territories occupied from a sovereign, and that it does not apply to the West Bank since Jordan, from which it was conquered, was not a rightful sovereign. Israel has also maintained that the Fourth Geneva Convention does not reflect customary law and that under the Israel's domestic rules of incorporation, it was that not part of domestic law which the Court could apply. Israel has declared, however, that although it is not obliged to do so, it will unilaterally respect the "humanitarian provisions" of the fourth Geneva Convention. The Court has relied on this declaration to apply such provisions without explicitly ruling on the status and scope of application of the Fourth Geneva Convention to the Occupied Territories CA 25/55 Custodian of Absentee Property v. Samra 10 P.D HCJ 2599/00 Yated Association for Children with Down Syndrome v. Ministry of Education 56(1) P.D DAVID KRETZMER, THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES (2002). 28 See Chief Justice Barak s opinion in the case of Mara'aba, discussed below. See: HCJ 7957/04 Mara'aba v. the Prime Minister of Israel PD 60(2) 477.

8 Under the accepted interpretation of Article 43 of the Hague Regulations, the domestic law of an occupied territory remains in force during the occupation. The military commander, however, is authorized to issue military orders as needed for the purposes defined in the Article. The legal framework that applies in the Occupied Territories thus includes the domestic law of the land, as amended by military orders issued since In addition, the Israeli Supreme Court has determined that since the military commander acts as a state organ, he is bound by the rules of Israeli administrative law. The Court has thus applied Israeli administrative law with respect to the manner in which the military commander exercised his discretion. 29 The significance of this application will be discussed further on. This legal framework was applied by the Court in numerous cases. While there have been voices, within Israeli society, that challenge the premise that the territories occupied by Israel in the 1967 war are, indeed, occupied territories governed by the law of occupation, these claims have yet to find explicit support among the judges of the Supreme Court. The shift away from international law described in this article is thus more subtle: it can be found in the lack of willingness to delve into international law issues, in a generally sceptic approach towards the ability of international law to provide solutions to questions that arise Occupied Territories, due to the allegedly unique characteristics of the Israeli occupation, and, as a result, to a growing willingness to apply, in addition to Israeli administrative law, elements of Israeli constitutional law, not as a source of inspiration for interpreting international law, but as an alternative normative framework. Writing for an international audience: the case of Mara'aba v. the Prime Minister of Israel Barak-Erez reviews a decade of decisions characterized by a growing reliance on international law. For space considerations, this article will not repeat this review. Instead, it will examine one example in order to illustrate the manner in which these cases address an international audience. 29 HCJ 393/83 Jam'iat Iscan v. The Commander of the IDF Forces in Judea and Samaria PD 37(4) 785 (2003). See Yoram Dinstein, Judicial Review over the Acts of the Military Government in the Occupied Territories 3 TEL- AVIV L. REV., 330, 331 (1973) [In Hebrew]. Adam Shinar, Israel's external Constitution: Friend, Enemies and the Constitutional/Administrative law Distinction (Virginia Journal of International Law, forthcoming), Barak-Erez, supra note 1, at 616.

9 The paradigmatic example of a decision addressing an international audience is Justice Barak's opinion in the case of Mara'abe. 30 The decision concerns the legality of the separation wall constructed by the State of Israel in the area of Alfei Menashe. The Court had already delivered its opinion with regard to the legality of the wall in the previous case of Beit Sourik, in which it examined the legality of the wall under international humanitarian law, and concluded the wall was built for security purpose and that its construction was thus permitted by the Hague Regulations. 31 Following this conclusion, the remaining question to be determined was only the question of proportionality, which required balancing security needs against the harm cause to Palestinian residents. The Court approached this question by examining separately the route of each segment of the wall. Once the fundamental question of whether Israel was permitted to build a wall in the Occupied Territories was answered affirmatively by the Court in Beit Sourik, the only task left for the Court in the case of Mara'abe was to apply the proportionality test to the segment of the fence in the Alfei Menashe area. However, between the time of the delivery of the Beit Sourik decision and the time in which the Court was required to deliver its decision in Mara'ba, the ICJ published its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. 32 In its opinion, the ICJ examined the legality of the fence not only under international humanitarian law but also under the law of use of force, concluding that the construction of the wall violates both, as well as international human rights law. 33 The opinion of the ICJ is, as its name implies, advisory. It is not, in itself, binding under international law, and is certainly not binding under Israeli law. From a purely legal perspective, then, the Court was not required to address it. Despite this fact, Justice Barak's devoted the bulk of his opinion in Mara'ba to examining the ICJ's decision, comparing it to the Supreme Court's decision and attempting to reconcile the two and explain the different results the two courts reached. In several 30 HCJ 7957/04 Mara'aba v. the Prime Minister of Israel PD 60(2) HCJ 2056/04 Beit Sourik v. the Government of Israel (June 30, 2004). 32 Advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 33 Id.

10 lengthy passages, Barak stresses that the "basic normative foundation upon which the ICJ and the Supreme Court based their judgment is a common one" 34, and that the different conclusions were rooted in the different factual bases that was laid before each court with regards to both the security justification for building the fence and the extent of violations suffered by Palestinian residents. 35 While the argument regarding the alleged shared normative basis of the two decisions can easily be dismantled 36, the important point, for the purpose of this article, regards the efforts invested in convincing the decision's readers that the decision of the Supreme Court, and, accordingly, Israel's actions, are compliant with international law, and the question of the audience Barak's manifest addresses. The opinion is not written for the Israeli audience, which is, at best, oblivious towards the ICJ and its opinion. It is thus an outward-facing opinion, written for the international community and specifically for the international legal community, which Barak perceives the Court to be part of. The shift: writing for a domestic audience Such lengthy paragraphs, explaining the compatibility of Israel's actions with international law, are rare in the Court s decisions of the past decade. In fact, although the normative framework in the territories still derives from international law, many of the Court's decisions avoid substantive discussions of international law issues. The circumvention of international law issues in cases that concern the occupied territories is achieved by the Court by using the three connected strategies: First, by treating the Israeli occupation as a sui generis with which the existing Law of Occupation is not compatible. Second, by refusing to reexamine past rulings that declared certain actions to be compatible with international law, even when there is substantial evidence that international law has since evolved or been clarified to the contrary. Third, by applying Israel's internal constitutional law in lieu or together with international law, under the premise that such law guarantees better protection of rights. 34 Mara'aba, supra note 30, section Id., sections The most notable difference is the centrality of article 49 of the fourth Geneva Convention to the ICJ's decision in compare to its absence from the Supreme Court's decision.

11 The two first strategies are not entirely new, and the Court has employed them, in somewhat different variations, in the decades that preceded the 1990 s. However, unlike in the past, the renewed resort to these strategies is justified by the Court by the prolonged nature of the occupation, and by the inability of traditional international law to provide solutions contemporary issues. The third strategy, the application of parts of Israeli constitutional law in the territories, is relatively new. Basic Law: Human Dignity and Liberty was enacted in 1992, and has since gained prominence as the main source of constitutional rights in Israel. Once the recourse to international law has decreased, the stage has been set for applying the constitutional jurisprudence, developed after the enactment of the Basic Law, to the Occupied Territories. The First Strategy: Treating the Israeli occupation as a sui generis with regard to which the existing Law of Occupation is not compatible. The first strategy is exemplified in the case of Yesh Din 37, delivered by the Court in The case concerned the operation of Israeli-owned quarries operating in Area C in the Judea and Samaria boundaries. The vast majority of the production of the quarries was transported into Israel 38, and the petitioners argued that the operation of the quarries violated both Article 43 and Article 55 of the Hague Regulations. The Court rejected the petition, ruling that the matter of operation of the quarries was regulated by the Interim Agreement Israeli-Palestinian Accords, that it was primarily a political matter, that the petition was too general and flawed due to delay. Despite the acceptance of these preliminary arguments, which sufficed to reject the petition, Justice Beinish chose to elaborate on the substantive issues. Ignoring the commonly accepted interpretation of Article 43, which prohibits an occupier from using the occupied territory to benefit his own economic, national or social interests, the Court emphasized the "unique characteristics" of the Israeli occupation, and argued that its prolonged duration, requires "adjustments" of traditional occupation law 39, including interpreting Article 55 in light of the "common economic interests" of Israelis and Palestinians. Concluding that it could not be 37 HCJ 2164/09 Yesh Din v. The Commandor of the IDF Forces in the West Bank (December 26, 2011) 38 According to the reply of the Respondents as discussed in the case, up to 80% of the production of the Palestinian quarries and up to 94% of the production of Israeli quarries were being transported into Israel. 39 Id., section 10.

12 determined that the quarries do not benefit the Occupied Territory in any aspect, the Court effectively applied a test which allows the military commander to further to the interests of the occupying state, as long as residents of the occupied territory benefit from it to any extent, contrary to the common interpretation of article 43. Justice Beinish's opinion in the Yesh Din decision is, in many ways, a mirror image of Justice Barak's decision in Mara'abe. While Barak choose to emphasize the compatibility of the Court's ruling with the ICJ's interpretation of International law, although the discussion was not warranted, Beinish choose to expose the Court to criticism by international jurists by characterizing the Israeli occupation as a unique situation with which traditional international law is not compatible. Shortly after the decision was delivered, the appellants asked for an further hearing, supporting their claim with an expert opinion written by nine of Israel's leading international law experts, who argued that the Court's interpretations of Article 43 and 55 were wrong, as were the implications the Court drew from the prolonged length of the occupation. The request was denied in 2012, based on the argument that since the case did not form a precedent, an additional hearing was unwarranted. The now-exposed tension between the Court's decision and international law experts with regard to the duties of an occupier in a prolonged occupation were thus left unresolved. 40 Dismissing international law issues The second strategy employed by the Court is refusal to address questions of international law or to re-address questions discussed in the past, where international law has evolved or been clarified to the contrary. This strategy has been employed, for example, with regard to the policy of house demolitions, a policy executed under regulation 119 of the Defense (Emergency) Regulations, enacted by the British Mandate authorities in In a series of laconic decisions, delivered in the 1980's, the Supreme Court rejected the claim that Regulation 119 violates international law. The Court ruled that Regulation 119 was part of the local law which remained in force in the Occupied Territories, in accordance with Regulation 43 of the Hague Regulations, and that execution of the military 40 HCJFH 316/12, Yesh Din v. The Commander of the IDF Forces in the West Bank (July 25, 2012).

13 commander s authority under Regulation 119 was compatible with the military necessity exception to the general prohibition on destruction of private property under the law of occupation. 41 The practice of house demolitions was used less frequently during the 1990 s 42, and was reinitiated in the second intifada. 43 After 2005, use of the practice was halted, for the most part, in the Occupied Territories, with the exception of East Jerusalem. 44 Since 2014, the practice of house demolitions has been renewed, leading to a large number of petitions on the matter being filed. The latest round of petitions against the practice was supported by a growing body of scholarship arguing that the practice violated international law. 45 Numerous articles were published arguing that Israel was violating international law, citing the developments that have occurred in international and, in particular, in international criminal law, since the early 1990 s, claiming, amount other things, that the practice of house demolitions constituted prohibited collective punishment 46 and amounted to a crime under the Rome Statute. 47 This background is significant to understanding the Court's decision in the case of HaMoket Center for the Defence of the individual 48, a petition filed in 2014 requesting a declarative order stating that the practice of house demolitions was illegal. While the practice of house demolition was upheld by various Courts throughout the years, the petition in HaMoked was filed against a background of cumulative harsh criticism of Israel s actions, both from within Israel and from abroad, and is 41 Guy Harpaz and Amichai Cohen, House Demolitions in Front of the High Court of Justice (in Hebrew, draft with author). 42 According to Israeli NGO B Tselem, between Israel demolished or sealed at least 1, 387 houses, between Israel fully demolished 431 houses and partially demolished 59 houses, between Israel fully demolished 18 houses and partially demolished three houses, between 1998-October 2001 no houses were demolished. See B tselem report on punitive house demolitions during the Al-Aqsa intifada. Available at: (in Hebrew). 43 Between , Israel demolished 664 houses. See: 44 According to the report of B Tselem, Israel demolished two houses and sealed two unites in East Jerusalem during See: 45 See, for example: Cohen and Harpaz, supra note 41, Ariel Zemach, The Limits of International Criminal Law: House Demolitions in the Occupied Territories, 20 CONN. J. INT L L. Shane Darcy, Punitive House Demolitions, the Prohibition of Collective Punishment, and the Supreme Court of Israel, 21 PENN ST. INT L L. REV., 477 (2003), George P Fletcher, Collective Guilt and Collective Punishment, 5 THEORETICAL INQ. L. 163 (2004). 46 Fletcher. Id. 47 Zemach, supra note 45, at HCJ 8091/14 Hamoked Center for the Defense of the Individual v. Minister of Defence (2014).

14 condemned not only as a violation of international humanitarian law but also as a violation of international criminal law. Instead of attempting to justify Israel's actions in light of this criticism, as was done in the case of Mara'abe, the Court refused to address the matter and reexamine the substantive international law issues at stake. Citing thirty-five year old cases 49, the Court determined that article 119 was part of the array of measures available to the military commander under Article 43 of the Hague regulations. 50 Contemporary international law, including the relevance of international human rights law and international criminal law, was not discussed. The time that has passed since the cited decisions were delivered was deemed relevant only in that the "war on terror" required international law to be interpreted in a manner that will allow states to protect their security. The decision thus alludes that contemporary international law is actually more permissive, rather than the other way around. A motion for further hearing before an expanded panel was rejected. By Chief Justice Naor, who ruled that the procedure of a further hearing was not the appropriate procedure for examine "questions the Court did not address". 51 Thus, the critique of the practice of house demolitions from the perspective of international law remained without response from the Court. Substituting International law with Constitutional law The framing of the Israeli occupation as a special situation, raising issues that customary law of occupation cannot resolve, together with the Court s refusal to readdress question discussed in the past in light of the changes and developments that took place in contemporary international law, set the stage for the third strategy, applying constitutional law as the legal framework for judicial review of violations of rights, in lieu of international law. Israeli administrative law has long been applied to conduct judicial review of the acts of the military commander in the Occupied Territories. 52 The military commander, explained the Court, was a state organ executing governmental power. While his authority was rooted in international law, the 49 HCJ 434/79 Sahweil v. Commander of the Judea and Samaria Area, IsrSC 34(1) 464, HCJ 897/86 Ramzi Hna Jaber V. GOC Central Command et al. Isr.SC 51(2), HCJ 358/88 Association for Civil Rights in Israel, cited in para 22 of Justice Rubinstein s opinion. 50 HaMoked, supra note HCJFH 360/15, HaMoked et al. v. Minister of Defense et al. (2015). 52 Dinstein, supra note 29, Shinar, supra note 29

15 manner in which he exercised such power was subject to Israeli administrative law. 53 Israeli constitutional law, on the other hand, was not applied in a similarly sweeping manner. 54 Nevertheless, in a growing number of instances, the Court has resorted to Israeli Constitutional law in situations where administrative law does not provide a sufficiently comprehensive rights regime. Israeli constitutional law, and, in particular Basic Law: Human dignity and Liberty, has been applied by the Court extraterritorially in the West Bank and, in the past, in Gaza, on three main bases: the first is personally to Israeli citizens, usually Israeli settlers. 55 The second is applicability to the state as a duty-holder. The third is territorially. 56 As others have noted, the Court has not presented a coherent theory for the extraterritorial application of constitutional law in the occupied territories, 57 and the justification for its application often relies on some combination of the three bases, or is simply unclear. The main body of law that protects Palestinian residents of the Occupied Territories is the international law of occupation. As indicated above, Israeli administrative law is also often employed to limit the state s actions and to protect the rights of Palestinian residents of the Occupied Territories. However, in some cases administrative law is not enough to enable substantive judicial review of alleged rights violations. In such cases, the Court s withdrawal from international humanitarian law creates a void, fulfilled, at least partially, by Israeli constitutional law. In these situations, the Court has applied the principles of Israeli constitutional law. The latter term reflects a practice of applying fragments, principles and tests developed under Israeli constitutional law, without ruling explicitly on the issue of the applicability of international law as such. In these cases, constitutional law is applied as a substitute to international human rights law Iscan, supra note Shinar, supra note HCJ 1661/05 Gaza Coast Regional Council v. the Israeli Knesset PD 59(4), 481, 559 (2005). Personal application of constitutional law also applies to Palestinian citizens of Israel living in the occupied territories. See HCJ 4488/04 Alram Local Council and Others v. the Government of Israel (2006). 56 For a review of the different bases for applying Constitutional Law in the Occupied Territories see: Yael Ronen, Applicability of Basic Law: Human Dignity and Freedom in the West Bank, 46 Isr. L. Rev. 135 (2013), Liav Orgad, Whose Constitution and for Whom? On the Scope of Application of the Basic Laws 12 Mishpat Umimshal 145 (2009) [in Hebew]. 57 Ronen. Id. 58 HCJ 10356/02 Hess. ACJ 189/03 Bethlechem, 769/02 The Public Committee against torture in Israel, HCJ 7862Q04 Abu dhr v. Commander of IDF.

16 There are several possible explanations to the Court s preference of Israeli constitutional law over international human rights law. One possible answer, which may find support in the fact that in many of the instances in which constitutional law is applied to Palestinians are those which also involve the rights of Israelis, is that the standards of protection awarded by constitutional law are stricter, and the level of protection they award is higher. Applying constitutional law, it may be argued, is a way for ensuring that Palestinian residents of the Occupied Territories are awarded the superior protections guaranteed to Israeli citizens under Israeli constitutional law. 59 A comprehensive answer to the question whether the application of constitutional law provides Palestinian residents of the Occupied Territories protections that are superior to those offered by international law is beyond the scope of this article. 60 Commentators have argued that in the context of occupation, applying the occupying state s constitutional law to residents of the Occupied Territories may dilute the special protections awarded to such residents under the status of protected persons under international law of occupations. 61 More generally, the answer to the question which of the two bodies of law provides better protection depends on the particular standards of each of the two rights regimes with respect to the right at stake, as well as to the relationship between constitutional law, international human rights law and other legal norms, both domestic and international. 62 In some cases, international law may ensure better protection of human rights, while in other cases constitutional law may be superior. For the purpose of this article, it suffices to demonstrate that at least in some circumstances, as in the example of house demolitions cases discussed below, constitutional law does not provide superior protections. If this is the case, as will be argued below, applying constitutional law instead of international law cannot be justified as a mean of ensuring Palestinian residents of the Occupied Territories enjoy the highest standards of protection. In addition, if the goal of applying 59 For this claim see Shinar, Ronen 60 Ronen 61 Ronen. Similar claims have been made with respect to application of human rights law in relation to IHL, see Aeyal Gross, the Emperor s new clothes 62 See discussion in Harel and Benvenisti

17 constitutional law was to ensure higher standards of human rights protection, a sensible mode of operation would be to apply, in each case, the body of law that indeed accords better protections. The case law regarding house demolitions, discussed above, demonstrates this claim. As indicated above, the Court upheld the authority awarded to the military commander under Regulation 119. The Court ruled however, that the manner in which the authority was exercised was to be reviewed in each individual case. In reviewing the legality of the practice the Court applied, in addition to Israeli administrative law, Israeli constitutional law, indicating that each demolition order should be examined in light of Basic Law: Human Dignity and Liberty. The decision to subject the execution of the military commander's authority to Israeli constitutional law is not explained in the Court's decisions. While the Court maintains that the international law of occupation does not prohibit house demolitions, it contains no guidelines for examining particular demolition orders. Israeli administrative law, used in other cases to perfor, judicial review of the manner in which the military commander exercised its authority, appeared not to provide a sufficiently robust rights regime to examine the injuries and harm caused by demolitions. In order to perform substantive judicial review, a human rights framework was required. The two available normative rights regimes were international human rights law and Israeli constitutional law. Between these two, the Court chose the latter. 63 In the case of house demolitions, it is doubtful whether the application Israeli of Israeli constitutional law, rather than international human rights law, indeed afforded Palestinian residents better protection. Regulation 119 applies both in Israel and in the Occupied Territories. In Israel, the Regulation enjoys the status of primary legislation, and its validity is maintained under section 10 of Basic Law: Human Dignity and Liberty which determines that basic law does not affect the status of legislation that was force prior to the commencement of the Basic Law. The status of the Regulation in the Occupied Territories is more complex. The Regulation is part of the law of the land, which the Court determined to remain in place under Article 43 of the Hague Regulations. The question whether, when 63 Aharon Barak, International Humanitarian Law and the Israeli Supreme Court, 47 Isr. L. Rev. 181, 187 (2014).

18 examined from a constitutional rights perspective, the Regulation is subject to Article 10 has not been explicitly addressed by the Court 64, which dismissed it as unimportant. While it recognized there is a difference between the authority of Regulation 119 in Israel and in the Occupied Territories, the Court dismissed the difference as "formal" and determined that the "substantive judicial approach" does not distinguish between the execution of Regulation 119 in Israel and in the Occupied Territories. The difficulty in characterizing the normative status of the law in the Occupied Territories for the purpose of judicial review has not been addressed. In light of the importance the Court accords to the fact that Regulation 119 cannot be repealed due to Article 10 of the Basic Law, the answer to this question is crucial. If Regulation 119 would be examined not only under international law of occupation and international constitutional law, but also under international human rights law, it might not have been upheld. Section 10 of the Basic Law, which the Court emphasizes as central for upholding the Regulation, has no parallel in international human rights law. In the house demolition cases, then, applying international human rights would likely offer Palestinians better protection than Israeli constitutional law. An alternative possible explanation for applying constitutional law rather than international human rights law in the house demolition cases is that the Court chose to apply the body of law that allowed it to uphold the practice. Barak-Erez indicates that the decisions ruling that the practice of house demolitions was could not have been decided otherwise as a matter of realpolitik, since "judicial decisions dismissing the legality of demolitions of houses of terrorists or prohibiting deportations of terrorists would not have been considered legitimate by the Israeli public". 65 If this is indeed the case, one could argue that the Court had to resort to the body of law that would enable it to uphold the practice, and that while the Court could uphold the practice under Israeli constitutional law, perhaps due to the 64 The Regulations are considered primary legislation in the Occupied Territories, as are the military commander's orders, which can change or repeal it. However, judicial review of the military commander's orders in the Supreme Court has been conducted as judicial review of administrative body and not of primary legislation. 65 Barak-Erez, supra note 1, at 631.

19 fact that it allows the Court more leeway in interpretation, it could not do so under international human rights law due to the substantive content of international human rights law and the need to refer to external sources and interpretations. Past rulings demonstrate, however, that although the Court regularly applied international law, it often concluded that the State s actions are compatible with such law, even when such conclusion was incompatible with the conventional understanding of the relevant international norms and with the interpretation of international law by international bodies. Theoretically, then, there is nothing that precluded the Court from continuing in this practice and applying its own interpretation of international law to uphold the legality of house demolitions. In fact, one of the interpretation methods often employed by Justice Barak when applying international law is importing norms from Israeli administrative law and constitutional law and integrating them into an international law framework. 66 This method was applied, for example, in the case of the Public Committee Against Torture in Israel (the targeting killing case ). 67 Acknowledging that the matter is governed by international humanitarian law, Barak applied the principle of proportionality, as developed in Israeli law, as the relevant criteria for determining the legality of specific cases of targeted killings. 68 This method rests on the empirically unfounded premise that the principle of proportionality is effectively identical in both bodies of law. The presumption of similarity between the two bodies of law was also employed in the case of Alram, a petition against a segment of the Wall that passed both through the Occupied Territories and through Jerusalem, and thus involved rights of both Israelis and Palestinians. 69 Barak devotes lengthy paragraphs to the analysis of the authority to build the Wall under international law, on the one hand, and under Israeli constitutional law, on the other hand. The decision thus explicitly acknowledged that the question of legality of the Wall in the Occupied Territories was governed by international law. The 66 TBC cases 67 HCJ 769/02 68 For the claim that the international human rights and Israeli constitutional law are, to a large extent, interchangeable, see Ronen. 69 HCJ 5488/04 Alram Local Council and Others v. Government of Israel and Others