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

Published online by Cambridge University Press:  19 March 2012

Guy Harpaz  and
Yuval Shany
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Abstract

On December 29, 2009, the Israeli Supreme Court, sitting as the High Court of Justice, delivered its judgment in Abu 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 the Abu Safiya judgment as indicative, notwithstanding its specific outcome, of the Supreme Court's ongoing willingness to expand the ratione materiae and ratione personae of 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 the lex specialis—the laws of belligerent occupation.

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Israel Law Review , Volume 43 , Issue 3 , 2010 , pp. 514 - 550
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Israel unilaterally disengaged itself from the Gaza Strip in the summer of 2005, yet a legal controversy still persists regarding whether the laws of belligerent occupation oblige it with regard to that territory. For analysis, see Shany, Yuval, Binary Law Meets Complex Reality: The Occupation of Gaza Debate, 41 Isr. L. Rev. 68 (2008).CrossRefGoogle Scholar

2 For analysis, see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002)Google Scholar; Cohen, Amichai, Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories, 38 Isr. L. Rev. 24 (2005)CrossRefGoogle Scholar; Ben-Naftali, Orna & Shany, Yuval, Living in Denial: Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17 (2003–2004)CrossRefGoogle Scholar; Dinstein, Yoram, The International Legal Status of the West Bank and the Gaza Strip – 1998, 28 Isr. Y.B. Hum. Rts. 37 (1998).Google Scholar

3 For a discussion, see Kretzmer, supra note 2, at 2–3.

4 See HCJ 2150/07 Abu Safiya v. The Minister of Defense (Dec. 29, 2009), Israel Supreme Court Database, http://elyon2.court.gov.il/files/07/500/021/M19/07021500.M19.htm. An English synopsis of the case is available at the Supreme Court's website http://elyonl.court.gov.il/files_eng/07/500/021/ml9/07021500.ml9.pdf.

5 For analysis of the same theme in the U.S. context, see Mishler, William & Sheehan, Regubald S., The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. Pol. Sci. Rev. 87 (1993).CrossRefGoogle Scholar

6 Leading Dinstein to conclude that Article 43 of the Hague Regulations (infra note 21) by no means poses an insurmountable hurdle blocking the possibility of the enactment of new legislation in the occupied territory by the Occupying Power, see Dinstein, Yoram, The Israeli Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 25 Isr. Y.B. Hum. Rts. 12 (1995).Google Scholar

7 HCJ 393/82 Jamayit Iscan Almalmun Althaunia Almahduda Almesaulia v. The Commander of IDF in the Judea and Samaria Area 37(4) PD 738 [1983] [hereinafter the Jamayit Iscan case].

8 Id. para. 36:

[The] military administration must function as a government and must look after the local population's public life… [It] is authorized to invest in infrastructure and undertake long term planning designed to benefit the local population… Against this background it is clear that no flaws appertained to the preparation of a national roads plan: the transportation needs of the local population have increased over time; the state of the roads cannot be frozen.

(Authors' translation from Hebrew).

9 Id. para. 13.

10 Security Provisions Ordinance (Judea and Samaria) (No. 378), 1970: Provisions concerning Movement and Travel (Route 443), Aug. 28, 2007, http://www.btselem.org/Hebrew/Legal_Documents/20070428_443_Road_Military_Order.pdf [in Hebrew].

11 See Abu Safiya v. The Minister of Defense, supra note 4, at para. 9 (per Justice Vogelman). These roads were indeed exclusively designed for use by Palestinians. In HCJ 6379/07 Dolev v. The Military Commander of Judea and Samaria (Aug. 20, 2009) Takdin Legal Database (by subscription) (Isr.), the Supreme Court adjudicated a petition submitted by four Israeli settlements in the West Bank—which were situated near Route 443 and whose access to Jerusalem was only possible via old, indirect routes that made their journey to Jerusalem very long—asking the Court to order the Military Commander to allow them to use the more efficient, modern service road constructed by Israel for Palestinian transportation. The Court upheld the Military Commander's refusal, which was based, inter alia, on security grounds. Thus, Israeli settlers were prohibited from using this service road.

12 Id. para. 8.

13 Id. para. 9.

14 Abu Safiya v. The Minister of Defense, supra note 4, para. 9 (per Justice Vogelman).

15 Id. para. 14.

16 Id. para. 16.

17 Id.

18 Trial of the Major War Criminals, International Military Tribunal in Nuremberg, , reprinted in 41 Am. J. Int'l L. 172, 248–49 (1947).Google Scholar

19 See, e.g., Benvenisti, Eyal, The International Law of Occupation 9 (2d ed. 2004)Google Scholar; Watkin, Kenneth, Maintaining Law and Order during Occupation: Breaking the Normative Chains, 41 Isr. L. Rev. 175, 178 (2007).CrossRefGoogle Scholar See also Dinstein, supra note 6, at 12–16; Schwenk, Edmund, Legislative Power of the Military Occupant under Article 43, Hague Regulations, 54 Yale L. J. 393 (1944–1945)CrossRefGoogle Scholar; Sassòli, Marco, Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century (paper submitted to the informal high-level expert meeting on current challenges to International Humanitarian Law, Cambridge, June 25–27, 2004), available at http://www.ihlresearch.org/ihl/pdfs/sassoli.pdfGoogle Scholar

20 See Dinstein, Yoram, The Dilemmas Relating to Legislation under Article 43 of The Hague Regulations and Peace Building 1 (paper submitted to the informal high-level expert meeting on current challenges to International Humanitarian Law, Cambridge, June 25–27, 2004) available at http://www.ihlresearch.org/ihl/pdfs/dinstein.pdf.Google Scholar

21 Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277 [hereinafter Hague Regulations].

22 Abu Safiya v. The Minister of Defense, supra note 4, para. 22 (per Justice Vogelman).

23 Id para. 20.

24 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter GC IV].

25 Abu Safiya v. The Minister of Defense, supra note 4, para. 24 (per Justice Vogelman).

26 Id. para. 23.

27 Id. para. 26.

28 Id.

29 HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) PD 807 [2004] (Isr.) [hereinafter Beit Sourik case], an English translation is available in 38 Isr. L. Rev. (2005) and elyonl.court.gov.il/files_eng/04/560/020/…/04020560.a28.pdf.

30 Abu Safiya v. The Minister of Defense, supra note 4, para. 31 (per Justice Vogelman).

31 Id. para. 35.

32 Id. para. 8 (per President Beinisch).

33 Id. para. 3.

34 Id. para. 6.

35 For an example of the use of postponed remedies by an international court, see Joined Case C-402/05 and C-415/05, P Kadi and Al Barakaat International Foundation v Council and Commission, 2008 E.C.R. 16351 (judgment of Sept. 3, 2008, paras. 373–76. But cf. Her Majesty's Treasury v. Mohammed Jabar Ahmed, [2010] UKSC 2, at para. 8 (per Lord Philips): “This court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment. Accordingly, I would not suspend the operation of any part of the court's order.”

36 Abu Safiya v. The Minister of Defense, supra note 4, para. 4 (per Justice Levy).

37 Id. para. 6.

38 Id. para. 7

39 In the original, authoritative, and more broadly formulated French version (authors' translation). For analysis and comparison, see Sassòli, supra note 19, at 3.

40 The authentic (and binding) French text: “L'autorité du pouvoir légal ayant passé de fait entre les mains de l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d'assurer, autant qu'il est possible, l'ordre et la vie publics en respectant, sauf empêchement absolu, les lois en vigueur dans le pays.”

41 See, e.g., Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 33–34 (1957); Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int'l L. 44, 46 (1990).CrossRefGoogle Scholar

42 Emphasis added G.H. & Y.S.

43 GC IV, supra note 24, art. 27.

44 Id.

45 See Benvenisti, supra note 19, at 110 (“while the Hague Regulations primarily protect governmental interests, the Fourth Geneva Convention caters to the interests of individuals under foreign rule”). Benvenisti also noted in this regard the irony in Israel's acceptance of the applicability of the Hague Regulations to the Occupied Territories, while rejecting the applicability of GC IV for reasons related to the invalidity of the Jordanian and Egyptian sovereign titles over these area, id.

46 Hague Regulations, supra note 21, Reg. 50.

47 Id. Regs. 44, 45, & 52.

48 Note that Geneva IV, Article 4 also excludes from the definition of “protected persons” nationals of neutral states and co-belligerents who find themselves in the territory of a belligerent State. See supra note 24.

49 Among the principal early Supreme Court judgments issued in the first 15 years after 1967, one may note in particular the following cases: HCJ 337/71 Al Jamayia v. The Minister of Defense 26(1) PD 574 [1972]; HCJ 256/72 East Jerusalem Electric Co. v. The Minister of Defense 27(1) PD 124 [1973]; HCJ 302/72 Abu Hilu v. The Government of Israel, 27(2) PD 169 [1973]; HCJ 606/78 Ayub v. The Minister of Defense 33(2) PD 113 [1979]; HCJ 390/79 Dawikat v. The State of Israel 34(1) PD 1 [1979].

50 Jamayit Iscan case, supra note 7, paras. 7–9. For analysis, see Sassòli, supra note 19, at 1.

51 Jamayit Iscan case, supra note 7, paras. 14–16. But see Kretzmer, supra note 2, at 70, who argues that despite the Court's stated conviction that the Route was designed to benefit the local Palestinian population, there was in actuality no lack of evidence to show that it was constructed mainly to advance Israel's interests.

52 Jamayit Iscan case, supra note 7, para. 21 (“[T]he concrete meaning that is to be given to the provision of Regulation 43 of the Hague Regulations relating to the ensuring of public order and life would not conform to 19th century public order and life but to public order and life in a modern state at the end of the 20th century”) (Authors' translation from Hebrew). For a discussion, see Roberts, supra note 41, at 92–93.

53 Jamayit Iscan case, supra note 7, para. 13. For analysis of the authority to act in order to advance security interests, see Sassòli, supra note 19, at 10; Schwenk, supra note 19, at 395–97.

54 Jamayit Iscan case, supra note 7, para. 13 (authors' translation from Hebrew).

55 See, e.g., Sassòli, supra note 19, at 10 and Schwenk, supra note 19, at 395–97 who both place emphasis on the fact that Article 43 was aimed at empowering the occupying power to legislate in the interest of the local population.

56 HCJ 9593/04 Morar v. The Commander of IDF Forces in the Judea and Samaria Area, Israel Supreme Court Database (online) (June 26, 2006) (the Military Commander is required to protect local Palestinians from settler violence), English translation 2 Isr. L. Rep. 56 (2006), http://www.hamoked.org/files/2010/6974_eng.pdf.

57 HCJ 69/81 Abu Ita v. The Commander of IDF Forces in the Judea and Samaria Area 37(2) PD 197 [1983] (dealing with the introduction of VAT in the Occupied Territories), English translation elyon1.court.gov.il/files_eng/81/690/000/z01/81000690.z01.pdf..

58 See Kretzmer, supra note 2, at 117–18 who notes that first signs for the Supreme Court's willingness to utilize the laws of belligerent occupation in order to protect the settlers appeared already in the early 1970s. His analysis relies on East Jerusalem Electric Co. v. The Minister of Defense, supra note 49 in which the Court was willing to include the interests of the settlers as a factor that the Military Commander was obliged to consider within the interpretive framework of Article 43: “the residents of Kiryat Arba must be regarded as having been added to the local population and they are also entitled to a regular supply of electricity.” He also refers to HCJ 72/86 Zalum v. The Commander of Judea and Samaria 41 (1) PD 528, 531[1986] (in which the Court approved the imposition of security checks placed on Palestinians in Hebron were required in order to protect the security of settlers who settled in a house at the heart of Hebron) and to HCJ 175/81 Al-Natshe v. The Minister of Defense 35 (3) PD 361 [1981].

59 HCJ 7959/04 Mara'abe v. The Prime Minister of Israel [2005] Israel Supreme Court Database (online), English translation http://elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.htm.

60 Id. para. 98.

61 Id. para. 18. See also Beit Sourik Village Council v. The Government of Israel, supra note 29, para. 32

62 Mara'abe v. The Prime Minister of Israel, supra note 59, para. 19. Another case in point is a Supreme Court judgment (HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (Aug. 16, 2002) (unpublished)), which rejected a petition by Palestinian residents of the Gaza Strip challenging the legality of constructing a new road in the Gaza Strip in order to improve access of Israeli settlers (as well as the Israeli army) to the Israeli settlement of Netsarim, situated in what was then the Occupied Gaza Strip. The Court held that the Israeli settlers comprise part of the local population which the Military Commander is obliged to protect under the laws of belligerent occupation. According to the Court, the legality of the settlements “is not under discussion before the Court, and will be determined in the peace treaties which the relevant parties will reach.” See also HCJ 4219/02 Gussin v. The Commander of IDF Forces in the Gaza Strip 56(4) PD 608 [2002] (the judgment from May 30, 2002); HCJ 4363/02 Zindah v. The Commander of IDF Forces in the Gaza Strip (May 28, 2002) (unpublished); HCJ 10356/02 Hass v. The IDF West Bank Commander 58(3) PD 443, at para. 14 (2004) (“the obligation of the Military Commander [is] to ensure the safety of all local residents, regardless of whether they are Israeli or Palestinians”).

63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 2004 I.C.J. 131 paras. 121–22 (July 9) [hereinafter Legal Consequences of the Wall] (“[The Court] cannot remain indifferent to certain fears expressed to it that the route of the Wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access … [T]he route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements”).

64 See Mara'abe v. The Prime Minister of Israel, supra note 59, para. 19; see also the Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc A/810 at 71 (1948).

65 For analysis, see Sassòli, supra note 19, at 5–10.

66 See, e.g. Kretzmer, supra note 2, at 64–72, who argues that

Given the dubious legal status of the civilian settlements…regarding settlers as part of the local population for the purpose of Article 43 is highly problematic. Article 43 attempts to resolve the potential conflict between the governmental duties of an occupant bound to ensure civil life in the occupied territory and the nonsovereign and temporary nature of occupation by limiting the power to change laws to those cases in which changes absolutely cannot be prevented. By broadening the meaning of civil life to include all the interests of the local population and allowing changes in local law to promote those interests, the Court had already weakened the restraining influence of Article 43. If the test is the interests of the local population and the Israeli settlers…become part of the population, the potential for changing the law becomes almost unlimited.

Id. at 65.

67 Gross, Aeyal M., The Construction of a Wall Between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, 26 Leiden J. Int'l L. 393, 413–41 (2006).CrossRefGoogle Scholar

68 Gross, Aeyal, Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?, 18 Eur. J. Int'l L. 1, 5, 16, 18, 25 (2007).CrossRefGoogle Scholar

69 See, e.g., Mara'abe v. The Prime Minister of Israel supra note 59, para. 21; HCJ 1661/05 Gaza Coast Regional Council v. Knesset 59(2) PD 481 [2005], at para. 80.

70 Hass v. The IDF West Bank Commander, supra note 62, para. 15.

71 Gross, supra note 68, at 19.

72 Id. at 4–5, 7.

73 HCJ 1890/03 Bethlehem Municipality v. The Minister of Defense 59(4) PD 736 (2005), reprinted in ILDC 368 (IL 2005).

74 Id. para. 13.

75 Id. para. 14.

76 Abu Safiya v. The Minister of Defense, supra note 4, para. 20 (per Justice Vogelman) (emphasis added G.H & Y.S.).

77 It is perhaps interesting to note that decisions by the Military Commander not allow Israelis into parts of the Occupied Territories have been unsuccessfully challenged before the Supreme Court. See, e.g., HCJ 727/02 Physicians for Human Rights v. The Commander of IDF Forces in the Gaza Strip 56 (3) PD 39 [2002]. The question of whether the Military Commander should restrict the travel of Israeli commuters on Route 443 was never addressed by the Court in Abu Safiya v. The Minister of Defense supra note 4.

78 Jamayit Iscan case, supra note 7, para. 13.

79 Abu Safiya v. The Minister of Defense, supra note 4, para. 35 (per Justice Vogelman) (“no proper weight was given to the preservation of the rights of [Palestinians] as ‘protected persons’”) (authors' translation from Hebrew); id. para. 8 (per President Beinisch) (“The Military Commander must refrain as much as possible from resorting to a measure as extreme as totally excluding protected persons from using a specific road”) (authors' translation from Hebrew).

80 As noted already, the Hass case similarly upholds the right to of Israeli settlers to safely travel to places of worship inside Palestinian towns, (see Hass v. The IDF West Bank Commander, supra note 62).

81 Abu Ita v. The Commander of IDF Forces in the Judea and Samaria Area, supra note 57, para. 22 (“[According to the basic concepts that restrain any deviation from the law in force before the occupation, no change or reform can be permitted unless for compelling reasons. Therefore, the need to respect existing rules should not be taken lightly; only weighty constraints or changes of circumstances of a similar nature … would permit the abandonment of existing rules”) (authors' translation from Hebrew). See also HCJ 351/80 Jerusalem Electric Co. v. The Minister of Energy and Infrastructure 35(2) PD 673, 690 [1981].

82 Jamayit Iscan case, supra note 7, para. 23 (“It is temporary control in its very essence… [Hence], the conclusion that certain powers, which the ordinary sovereign possesses, are not entrusted to the military administration”) (authors' translation from Hebrew).

83 See Graber, Doris A., Development of the Law of Belligerent Occupation, 1863–1914, at 260 (2d ed. 1968).Google Scholar

84 Jamayit Iscan case, supra note 7, para. 21.

85 Roberts, supra note 41, at 47. See also Dinstein, supra note 20, at 7–12; Sassòli, supra note 19, at 15–17.

86 See Al Jamayia v. The Minister of Defense, supra note 49, at 581–82; East Jerusalem Electric Co. v. The Minister of Defense, supra note 48, at 138; HCJ 202/81 Tabib v. The Minister of Defense 36(2) PD 622, 630–31 [1981]; Abu Ita v. The Commander of IDF Forces in the Judea and Samaria Area supra note 57, para. 50; Jamayit Iscan case, supra note 7, para. 22; Schwenk, supra note 19; Roberts, supra note 41.

87 The relevant part of GC IV, Article 6 provides that:

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

See GC IV, supra note 24.

88 J.P. Pictet, Commentary on the Geneva Convention of 12 August, 1949, at 63 (1952–1960) (“one year after the close of hostilities, the authorities of the occupied State will almost always have regained their freedom of action to some extent; communications with the outside world having been re-established, world public opinion will, moreover, have some effect.”).

89 Roberts, supra note 41, at 56. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3.

90 Roberts, supra note 41, at 56–57. See also Kretzmer, David, The Advisory Opinion: The Light Treatment of International Humanitarian Law, 99 Am. J. Int'l L. 88, 91 (2005)CrossRefGoogle Scholar and supra note 2.

91 See Ben-Naftali, Oma, ‘A La Recherche du Temps Perdu’: Rethinking Article 6 of The Fourth Geneva Convention in the Light of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 38/1–2 Isr. L. Rev. 211, 217–19 (2005).CrossRefGoogle Scholar

92 See Roberts, Adam, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 Am. J. Int'l L. 580, 622 (2006).CrossRefGoogle Scholar

93 See supra notes 17, 64, 69 & 71, and accompanying texts.

94 Jordan, : Statement Concerning Disengagement from the West Bank and Palestinian Self-Determination, 27 I.L.M. 1637 (1988).Google Scholar Egypt, which controlled the Gaza Strip prior to 1967, has never claimed sovereignty over it.

95 In the same vein, limited reference was accorded to Egyptian military legislation in the Gaza Strip.

96 Israeli shekels are still the main currency in the Occupied Territories; Israel and the Occupied Territories remain a single customs area; Israel has for many years taxed the population in the Occupied Territories and Israel still continues to control the employment of many thousands of Palestinians in its territory. For analysis, see Arnon, Arie & Weinblatt, Jimmy, Sovereignty and Economic Development: The Case of Israel and Palestine, 111/472 Eco. J. 291 (2001).CrossRefGoogle Scholar

97 Abu Ita v. The Commander of IDF Forces in the Judea and Samaria Area, supra note 57, para. 53 (“[W]e did not find grounds to reject the respondents' claim that the introduction of value added tax in Israel inevitably required the introduction of parallel taxation in the administered territories—that is, that the fiscal solution applied necessarily derived from the economic data before the military administration, and that such a measure was essential under the current political reality to facilitate the continuation of a situation, which presents a combination of positive economic factors of utter importance to the territories and their local inhabitants under existing conditions, and that one cannot negate, in essence, the argument that the contrary approach advocated by the applicants may have resulted in serious economic harm to the territories and their inhabitants, that would have entailed security risks as well”) (per Justice Shamgar) (authors' translation from Hebrew; emphasis in original text). See also Jamayit Iscan case, supra note 7, para para. 28 (“Investment in infrastructure, designed to benefit the local population, may often require planning and cooperation with elements situated outside the area. Such elements may comprise of a neighboring state or the military administration own country. Is there anything in the nature of military administration, which prevents it to undertake planning under these conditions? Surely, the welfare of the local population would require such cooperation”) (authors' translation from Hebrew).

98 For a discussion, see Karayani, Michael, Choice of Law under Occupation: How Israeli Law Came to Serve Palestinian Plaintiffs, 5 J. Private Int'l L. 1 (2009).CrossRefGoogle Scholar

99 For analysis, see Idit Zartel & Akiva Eldar, Lords of the Land: The Battle for Israeli Settlements (2007).

100 See Legal Consequences of the Construction of a Wall, supra note 63, paras. 120–22.

101 For analysis, see Kretzmer, supra note 2, at 75–99.

102 To be clear, the Supreme Court did rule on many legal issues relating to the settlements, including the prohibition of confiscating private Palestinian land for their construction. See, e.g., Dawikat v. The State of Israel, supra note 49. Still, the Court held that a direct challenge to the legality of the policy of constructing settlements in non-justiciable, see Ayub v. The Minister of Defense, supra note 48, at 128–29 (“[T]his Court must refrain from adjudicating the problem of civilian settlement in occupied territories from an international law viewpoint, as I am aware that this problem is disputed between the government of Israel and foreign governments, and may be discussed in crucial negotiations facing the government of Israel. Any expression of opinion by this Court in such a sensitive matter, than cannot be stated but in obiter dicta, will not add or detract, and it is best if things that in their very nature belong to the sphere of international politics would be addressed in that sphere only”) (authors' translation from Hebrew); HCJ 4481/91 Bar-Gil v. The Government of Israel 47(4) PD 210 [1992].

103 See, e.g., Morar v. The IDF Commander in Judea and Samaria., supra note 56.

104 Abu Safiya v. The Minister of Defense, supra note 4, para. 20.

105 For discussion, see Shany, supra note 1.

106 See, e.g., Beit Sourik case, supra note 29.

107 Dworkin, Richard, Rights as Trumps, in Theories of Rights 153 (Waldron, Jeremy ed., 1985).Google Scholar

108 Robert Nozick, Anarchy, State and Utopia (1974).

109 Koskenniemi, Martti, Occupied Zone—“A Zone of Reasonableness”?, 41 Isr. L. Rev. 13 (2008).CrossRefGoogle Scholar

110 See, e.g., Abu Ita v. The Commander of IDF Forces in the Judea and Samaria Area supra note 57, para. 22 (the specific provisions of the Hague Regulations addressing the taxation powers of the authorities to not limit its general powers in the field of taxation deriving from Regulation 43); Jamayit Iscan case, supra note 7, para. 31 (the specific prohibition on land confiscation under the Hague Regulations does not prevent confiscations under local laws, pursuant to Regulation 43).

111 For a discussion, see Koskenniemi, supra note 109.

112 Abu Safiya v. The Minister of Defense, supra note 4.

113 Bethlehem Municipality v. The Minister of Defense, supra note 73.

114 See Ayub v. The Minister of Defense, supra note 49, citing affidavit by the IDF Commander stating that Israeli settlements would comprise an element in the defense of the region during times of emergency. This line of argument was not argued after this judgment, where the Supreme Court found that the settlement in question was initiated by settler activists and not the military.

115 See, e.g., Dworkin, Ronald, No Right Answer?, in Law, Society and Morality 59 (Hacker, Peter Michael Stephan & Raz, Joseph eds., 1977).Google Scholar

116 For a discussion of the relationship between “landmark cases” and ordinary Israeli Supreme Court jurisprudence relating to the Occupied Territories, see Shamir, Ronen, Landmark Cases and the Reproduction of Legitimacy, 24 L. & Soc'y Rev. 781 (1990).CrossRefGoogle Scholar

117 See, e.g., Schauer, Fredrick, The Convergence of Rules and Standards, N.Z. Law Review 301 (2003)Google Scholar; Schlag, Pierre, Rules and Standards, 33 UCLA L. Rev. 379, 386–87 (1985)Google Scholar; Kaplow, Louis, Rules versus Standards: An Economic Analysis, 42 Duke L.J. 557, 557, 617 (1992).CrossRefGoogle Scholar

118 Cohen, Amichai, Rules and Standards in the Application of International Humanitarian Law, 41 Isr. L. Rev. 41 (2008).CrossRefGoogle Scholar

119 HCJ 2494/09 Good Honesty Ltd. v. The Military Commander in the West Bank (July 11, 2010) (unpublished), dealing with a military order that confiscated money from the petitioner; HCJ 9792/09 An Unspecified Person v. The Military Commander in the West Bank (Dec. 14, 2009) (unpublished), dismissing an appeal against the prohibition imposed upon the petitioner's parents to visit him in his prison cell.

120 See Greenberg, Hanan, IDF to Screen Palestinians entering Route 443, YNET, Mar. 25, 2010 http://www.ynet.co.il/english/articles/0,7340,L-3868377,00.html.Google Scholar

121 HCJ 3607/10 Israel Law Center v. The Minister of Defense (June 27, 2010) (unpublished).

122 In Gross' terms it would place the burden of the settlers' security on the very same people whom the laws of belligerent occupation were supposed to protect, see Gross, supra note 67, at 5, 16, 18, & 25.

123 For a comparable argument, concerning the applicability of “margin of appreciation” doctrine to minority right issues, see Benvenisti, Eyal, Margin of Appreciation, Consensus, and Universal Standards, 31 N.Y.U. J. Int'l L. & Pol. 843 (1999).Google Scholar

124 See, e.g., Gross, supra note 68, at 17 (“it is questionable whether this logic can apply when the government is a military occupation promoting the collective security interests of its own citizens while violating the rights of the people it occupies”).

125 For a discussion, see, e.g., Shany, supra note 1, at 75–76.

126 Gross, supra note 67, at 5, 16, 18, & 25.

127 See, e.g., Freeman, M., Human Rights: An Interdisciplinary Approach 74 (2002)Google Scholar; Braun, Reiner & Gearhart, Judie, Realizing Rights in the Work Place, in Non-State Actors, in The Human Rights Universe 59, 60 (Andreopolous, George, Arat, Z. F. Kabasakal & Juviler, Peter eds., 2006).Google Scholar

128 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 240 (July 8).

129 For a similar position, see Shany, Yuval, Capacities and Inadequacies: A Look at the Two Separation Barrier Cases, 38/1–2 Isr. L. Rev. 230 (2005).CrossRefGoogle Scholar

130 See also Gross, supra note 67, at 16.