Israeli Settlers

As nationals of the occupying power Israeli settlers are not ‘protected persons’ under GCIV. While the Court has recognised this, it has held that for the purposes of the Hague Regulations the settlers are part of the local population in the Occupied Territories for whose benefit the military commander must act. This chapter criticises this view, which runs contrary to the rationale and purposes of the law of occupation. It then examines the implications of this view, evident in the Court’s approach to measures taken to cater to settlers’ interests. It discusses the Court’s decisions on expropriation of land for use of settlers, and on special arrangements for governance of Israeli settlements that involved changes in the local law.

Jurisdiction and Justiciability

This chapter describes the basis for the Court’s jurisdiction over petitions by residents of territory that is not the sovereign territory of Israel, but is ruled under a regime of belligerent occupation. The chapter examines the readiness of the Court to entertain such petitions, given that their subject matter falls within areas that are arguably non-justiciable. The chapter stresses the tension in the Court’s decisions created by its position that the legality of Israel’s most controversial policy in the West Bank—the settlement project—is not justiciable, and its ruling that the political nature of a government act cannot block the right of individuals to challenge the legality of acts that violate their rights.

Internment on Security Grounds

One of the main security measures employed by the military authorities in the Occupied Territories has been internment, outside the criminal process. The main form of internment, employed since the beginning of the occupation, has been administrative detention. This form of detention was not considered appropriate when there were mass detentions of potential fighters during active hostilities and a special legal arrangement was adopted to deal with such detentions. Another form of detention adopted at the beginning of this century is incarceration of persons regarded as ‘unlawful combatants.’ This chapter discusses the Court’s approach in review of all these forms of internment.

Residence and Family Unification

Palestinian residents of the Occupied Territories are not nationals of the occupying power. As long as they remain residents of the Territories they are entitled to remain there. But what is the position if they leave the Territories for an appreciable period of time? Do they retain their residence status, and the consequent right to return to their homes? This chapter concerns petitions of Palestinians whose residence status has been denied (revoked) by the military authorities. It also deals with the Court’s decisions in applications of residents for family unification in the Occupied Territories with family members from other countries.

Introduction

This chapter describes the background to the Israeli occupation of the West Bank and Gaza in 1967, and changes that have taken place in these territories since then. It provides a profile of the Israeli Supreme Court—its composition, function, and record; and discusses factors that affect its role in reviewing petitions from Palestinian residents of the Occupied Territories, including the Court’s public image, its position in the Israeli political system, and its general record in matters relating to judicial review of government action. The chapter concludes by reviewing changes in the actual regime in the Occupied Territories that question its characterisation as a regime of belligerent occupation.

Security Powers: Basic Issues

This chapter introduces the third part of the book, which deals with security measures. It describes the security concerns that underpin the Court’s decisions. It shows that while the Court never examines the legitimacy of establishing settlements, the Court later regards the need to protect the settlers as legitimate grounds for restricting the rights and liberties of the local population. The chapter discusses domestic courts’ disinclination to review security issues, and the Israeli Supreme Court’s approach to the matter, which has evolved through the years. The chapter concludes by discussing cases on freedom of movement and limitations on access to designated areas.

Punitive House Demolitions

This chapter traces the Court’s decisions in petitions challenging orders to demolish the family homes of Palestinians who have been involved in hostile activities. It exposes the Court’s failure to adequately examine the legality of this sanction under international law, the wide interpretation the Court has given to the provision that sets the legal basis for the sanction, and the weakness of the Court’s reasoning in permitting its use. The chapter shows that while the Court has refused to prohibit use of the measure, its review of each individual case and resort to the proportionality test in such review has had a mitigating effect on use of the sanction. The chapter discusses the unprecedented division of opinion amongst judges of the Court in recent years on the need to re-examine the legality of the sanction.

Separation Barrier

This chapter examines the way in which the Supreme Court has handled petitions regarding the construction in the West Bank of the separation barrier and its associated regime (the Seam Zone). The Court upheld the legality of the construction of the barrier as a whole, but in specific cases mitigated the harm caused to individuals. As opposed to the ICJ’s Advisory Opinion on the Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory, when reviewing the route chosen for the separation barrier, the Court circumvented the question of the legality of the settlement project. The chapter includes a critical analysis of the use of the principle of proportionality in the Court’s decisions on the separation barrier, and the implications of the Court’s decisions for the settlement project.

Interrogation Practices

This chapter examines the Court’s review of the practices employed by the authorities in interrogating Palestinians suspected of involvement in hostile activities. In 1999 the Court delivered a judgment prohibiting use of force and other methods of pressure in interrogations. The chapter discusses the Court’s response to allegations of torture or other forms of cruel, inhuman, or degrading treatment during interrogations before that judgment; the judgment itself; and subsequent judgments of the Court. It poses the question whether the Court’s refusal in recent years to intervene in decisions not to prosecute security officials suspected of using force in interrogations unravels the prohibition imposed in the 1999 judgment.

Planning and Building in Area C

Under the Oslo Accords land planning and construction in Areas A and B of the West Bank are the responsibility of the Palestinian Authority. This chapter discusses judicial review of planning and building policies and legal arrangements in Area C, which remain Israel’s responsibility. The chapter’s focus is local planning power, the building-permit regime, and enforcement of planning law. As in other chapters the issue of Israeli settlements lies at the heart of government policies and practices in the issue under review. The chapter reviews and criticises the Court’s approach to the different policies adopted by the Israeli authorities towards planning and building for Israeli settlements and Palestinian communities.