The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law

Abstract

On December 29, 2009, the Israeli Supreme Court, sitting as the High Court of Justice, delivered its judgment inAbu Safiya v. The Minister of Defense,annulling an order issued by an Israeli Military Commander, which completely barred Palestinians from travelling on Route 443, a major road in the West Bank. This note criticizes theAbu Safiyajudgment as indicative, notwithstanding its specific outcome, of the Supreme Court's ongoing willingness to expand theratione materiaeandratione personaeof occupation law and to allow the military authorities to protect the interests of Israelis in the West Bank, even at the expense of the stronger rights conferred upon the local Palestinian population by thelex specialis—the laws of belligerent occupation.

Jurisdiction as Sovereignty Over Occupied Palestine

“…Kretzmer (2002: 19) has summarised this ambiguity stating that 'over the years Israeli governments pursued policies aimed at integration of the Occupied Territories with Israel while refraining from formally annexing the West Bank'. International law, and in particular the laws of armed conflict, has been used to facilitate Israeli control over the West Bank, giving rise to a 'legal hypocrisy' (Kretzmer, 2013) (Weill, 2015, Sultany, 2014, Kretzmer, 2002, Harpaz and Shany, 2010, the Israeli judiciary has substantially contributed to the situation. More generally, observers outside law have spoken of 'ethnocratic expansionism' by Israel over Palestine and Palestinians (Yiftachel, 2006: 3-9).…”

“…In essence, the Israeli authorities administer the West Bank in their own national interest, regardless of Palestinian rights and status as protected persons clearly set out in international law (Articles 27-34 and 47-78 GCIV confirmed in Wall Case; para 101). According to previous studies on the ISC/HCJ jurisprudence involving the West Bank (Harpaz and Shany, 2010;Kretzmer, 2002;Sultany, 2014;Weill, 2015), the Israeli judiciary has substantially contributed to the situation. More generally, observers outside law have spoken of 'ethnocratic expansionism' by Israel over Palestine and Palestinians (Yiftachel, 2006: 3-9).…”

“…Shehadeh, 1985;Shamir, 1990;Sultany, 2014;Weill, 2015). David Kretzmer (2002: 2-3) has suggested that 'the main function of the Court has been to legitimize the government's actions in the Territories', both when the ISC/HCJ sides with the state authorities, and when it opposes them (also Shamir, 1990); as such, it plays a crucial role in maintaining and upholding the occupation (Kretzmer, 2002;Al-Haq, 2010;Harpaz and Shany, 2010: 515) alongside military courts (Dinstein, 2009: 132;Arai-Takahasi, 2009: 145-166).…”

Activism and Legitimation in Israel’s Jurisprudence of Occupation

“…It also justifies the very existence of the wall inside the OPT in the first place. The Court's reasoning may also be damaging as it introduces factors or devices that can be used against the petitioners next time even if the factual or legal situation is somewhat similar: The separation wall cases and the Abu Safiya case (that canceled the Jewish-only movement on road 443) introduced the rights of the settlers to the 'balancing' and 'proportionality' analysis despite the fact that their very presence is illegal under international law (Abu Safiya, 2009;Gross, 2006;Harpaz and Shany, 2010).…”

Kafka at the West Bank checkpoint: de-normalizing the Palestinian encounter before the law

“…The Israeli High Court of Justice rejects such international definitions both in principle and in practice, however, and continues to enhance Israeli military interests through expansion of its occupation laws (Harpaz and Shany 2010), which it justifies through the discourse of "securitization". Such a discourse constructs Palestine as an erroneous threat to the State, against which Israel must defend the security of its self-determined boundaries at all costs.…”