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The Practice and Case Law of Israel in Matters Related to International Law

Published online by Cambridge University Press:  04 July 2014

Rotem M. Giladi
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Extract

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“the Interim Agreement”) represents another stage in the implementation of the framework established in the Declaration of Principles signed between the Government of Israel and the Palestine Liberation Organization (the “PLO”), commonly known as the “Oslo process”. In essence, the Interim Agreement provides for the establishment of self-government arrangements in the West Bank and the Gaza Strip, as envisaged in the Declaration of Principles, while explicitly superseding the arrangements which applied in the Gaza Strip and the Jericho Area since May 1994. In addition, the Interim Agreement provides for “direct, free and general political elections” to be held in the West Bank and the Gaza Strip.

The aim of this section is to acquaint lawyers with the general framework of the Agreement, and the primary legal and political issues dealt with by the Interim Agreement, rather than to describe the specifics of each of its many provisions. Where required, reference will be made to the Declaration of Principles and to previous Agreements concluded between the Parties. At times, reference will also be made to the Camp David Framework of 1978.

Type
International Law
Information
Israel Law Review , Volume 29 , Issue 3 , Summer 1995 , pp. 506 - 543
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1995

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References

1 Signed at Washington, D.C., on September 28, 1995; the Agreement was published by the Information Division of the Ministry of Foreign Affairs of Israel in December 1995, and has been sent for publication in the International Legal Materials series; see generally, Singer, J., “The West Bank and Gaza Strip: Phase Two”, (1995) 7 Justice 1.Google Scholar

2 Declaration of Principles on Interim Self-Government Arrangements, signed at Washington, D.C., on September 13, 1993 (“the Declaration of Principles”); United Nations document A/48/486-S/26560 (annex) of 11 October 1993; (1993) 32 I.L.M. 1525; (1994) 28 Is. L.R. 442.

3 Agreement on the Gaza Strip and the Jericho Area, signed at Cairo on May 4, 1994 (“the Gaza-Jericho Agreement”); United Nations document A/49/180-S/1994/727 (annex) of 20 June 1994; (1994) 33 I.L.M. 662; (1994) 28 Is. L.R. 452.

4 Article III(1), Declaration of Principles.

5 For a lucid presentation of the Declaration of Principles see Singer, J., “The Declaration of Principles On Interim Self-Government Arrangements — Some Legal Aspects” (1994) 1 Justice 4.Google Scholar

6 Framework for Peace in the Middle East, agreed at Camp David on September 17, 1978 (“the Camp David Framework”); (1978) 17 I.L.M. 1466; 1138 U.N. Treaty Series 39. For a comprehensive comparison between the Camp David Framework and the Declaration of Principles see Blum, Y. Z., “From Camp David to Oslo”, (1994) 28 Is. L.R. 211.CrossRefGoogle Scholar

7 Article I, Declaration of Principles.

8 Singer, supra n. 5, at 11.

9 Namely: education and culture, health, social welfare, tourism and direct taxation, and VAT on local production, which was not one of the spheres referred to in the Declaration of Principles; see Article VI(2), Declaration of Principles and Article II of the Preparatory Transfer Agreement, infra n. 10.

10 (1994) 28 Is. L.R. 544.

10a This document was never published.

11 Following Article VII(5) of the Declaration of Principles; see also Singer, supra n. 5, at 6.

12 Ibid.

13 Article I(5), Interim Agreement.

14 See Shamgar, M.,(ed.), Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects (1982) Vol. 1, chapters 1–2.Google Scholar

14a An implication supported by an expressed provision to that effect: see Article XXXI(7), infra, at paragraph B.3.

15 Singer, supra n.5, at 6. This raises, of course, the question of the external responsibility for these areas, especially with respect to human rights issues.

16 According to the fifth preambular paragraph of the Interim Agreement, the “transitional period not exceeding five years from the date of signing” the Gaza-Jericho Agreement; the transitional period would therefore end on May 4, 1999.

17 Article I(4), Article XVII(1)(b), and Article XVII(4), Interim Agreement.

18 Article I, Declaration of Principles.

19 Article VII(1), Declaration of Principles.

20 Preamble, sixth paragraph, Interim Agreement.

21 Article XXXI(7), Interim Agreement.

21a It must be noted, though, that the Palestinian National Council declared Palestinian independence on November 15, 1988: “Political Communique and Declaration of Independence”, U.N. document A/43/827; S/20278, November 18, 1988. Translation to English appears in Lapidoth and Hirsch, infra n. 35, at 344. Article XXXI casts further doubts as to the controversial status of this instrument.

22 Article V(2), Declaration of Principles.

23 Article XXXI(5), Interim Agreement.

23a This session produced a Joint Communique.

24 Article XXXI(5), Interim Agreement.

25 Such as Palestinian water rights in the West Bank — Article 40, Appendix I (“Powers and Responsibilities for Civil Affairs”), Annex III (“Protocol Concerning Civil Affairs”), Interim Agreement, or the issue of archaeological artifacts found in the Gaza Strip and West Bank since 1967 — Article 2(10), Appendix I, Annex III, Interim Agreement.

26 Article XXXI(6), Interim Agreement.

27 Ibid.; see also Article XIII(5) of the Gaza-Jericho Agreement and Article XIII(3) of the Preparatory Transfer Agreement.

28 Article XXXI(1), Interim Agreement. The Israeli government approved the Agreement on September 27, 1995, (Decision No. 6152) and the Knesset on October 5, 1995.

29 Israel has enacted the Law Implementing the Interim Agreement on the West Bank and the Gaza Strip (Jurisdiction and other Provisions)(Amendments), 1556 S.H. 34 (January 17, 1996); explanatory notes were published in 2468 H.H. 330 (January 1, 1996).

30 Article XX of the Gaza-Jericho Agreement, dealing with release of Palestinian prisoners and detainees remains in force.

31 Article I(2), Interim Agreement.

32 Article XXXI(3), Interim Agreement.

33 See Israel's Self-Rule Plan, Statement to the Knesset by Prime Minister Begin, Divrei Haknesset, (1978), Vol. 81 – 2, (61st Sess.), 925Google Scholar (December 28, 1977).

34 Article A(1), the Camp David Framework. See Sicherman, H., Palestinian Self-Government (Autonomy): Its Past and its Future, (Washington Institute for Near East Policy, 1991).Google Scholar

35 See Israel's Autonomy Proposals, January 1982, in Lapidoth, R. and Hirsch, M., (eds.), The Arab-Israel Conflict and its Resolution, Selected Documents, (1992) at 214–217.Google Scholar Israel's Peace Initiative of May 14, 1989 also included provision for the holding of “free and democratic elections”. An informal translation of this document appears in Lapidoth and Hirsch, ibid., at 357.

36 Article III(1), Declaration of Principles.

37 Article III(2), Declaration of Principles.

38 Annex I (“Protocol on the Mode and Conditions of Elections”), Declaration of Principles.

39 Ibid. See Singer, supra n. 5, at 5–6.

40 Article III(2), Declaration of Principles.

41 The negotiations on elections began in 1994 and were still under way when talks on the Interim Agreement have begun. The result is that the Interim Agreement covers the election arrangements.

42 Article II(1), Interim Agreement.

43 Ibid., and Article I(1) of Annex II (“Protocol Concerning Elections”), Interim Agreement.

44 Article II(4), Interim Agreement.

45 Article 1(2) of Annex II, Interim Agreement; the Law is: Palestinian Election Law (Law No. 15 of 1995, Relating to the Elections) issued in Gaza on 7 December, 1995, 14 Ragab 1416 of the Hrjri — Palestinian Official Gazette, Vol. 8, at 5.

46 The constituencies are listed in Article 5 of the Palestinian Election Law, ibid. In accordance with this Article, the allocation of seats for the various constituencies was determined in the Election Regulations and was as follows: Jerusalem 6, Jericho 1, Bethlehem 4, Hebron 9, Nablus 8, Jenin 6, Tulkarm 4, Qalqilya 2, Tubas 1, Salfit 1, Ramallah 7, Gaza North (Jebaliah) 7, Gaza City 10, Deir El-Balah 5, Khan Younis 7 and Rafah 5.

47 Article I(3),(4) of Annex II, Interim Agreement.

48 Article II, Annex II, Interim agreement. A separate agreement on canvassing was signed on September 23, 1995, but was never published.

49 Article II(1)(a), Annex II, Interim Agreement.

50 Article II(1)(b), Annex II, Interim Agreement.

51 Article II(1)(i), Annex II, Interim Agreement.

52 Article 3, Annex I, Declaration of Principles.

53 Article III(1)(a)-(b), Annex II, Interim Agreement.

54 Article III(1)(b), Annex II, Interim Agreement.

55 Article III(2), Annex II, Interim Agreement.

56 Article II(1)(e), Annex II, Interim Agreement.

57 Article V(1), Annex II, Interim Agreement.

58 Article V(2)(a), Annex II, Interim Agreement.

59 Article V(3), Annex II, Interim Agreement.

60 Article V(2)(d), Annex II, Interim Agreement.

61 Appendix 2, Annex II, Interim Agreement.

62 Article V(8), Annex II, Interim Agreement.

63 Article V(6), Annex II, Interim Agreement.

64 Article V(3)(b), Annex II, Interim Agreement.

65 Article V(2)(b)-(c), Annex II, Interim Agreement.

66 See generally Lapidoth, R., “Jerusalem and the Peace Process” (1994) 28 Is. L.R. 402CrossRefGoogle Scholar; and by the same author: “Jerusalem — Past, Present and Future” (1996) Revue Generale de Droit Comparé and “Jerusalem — Some Jurisprudential Aspects” (1996) 45 Catholic U. L.R. (both forthcoming).

67 Article V(3), Declaration of Principles.

68 Article 1, Annex I, Declaration of Principles.

69 Article III(1)(b), Annex II, Interim Agreement.

70 Article VI(2), Annex II, Interim Agreement.

71 See Lapidoth, supra n. 66.

72 Article VI(1), Annex II, Interim Agreement.

73 Article I(4)(a), Annex II, Interim Agreement.

74 Article XXXI(6), see supra, at paragraph B.4.

75 Israel has since consented to the addition of one seat, reserved for a Samaritan candidate in the Nablus Constituency, and five other seats. The Council will therefore have eighty-eight elected members.

76 Article III, Interim Agreement.

77 Article V(1)–(2), Interim Agreement. In this respect the Interim Agreement is innovative since the Declaration of Principles does not mention such a body.

78 Article V(4)(b), Interim Agreement.

79 Article V(4)(c), Interim Agreement.

80 See Article VI(1), Interim Agreement.

81 On the legislative authority of the Council see infra, at paragraph D.3.b.

82 See also Article VI(1), Interim Agreement.

83 Note that like Article IV, Declaration of Principles, this provision applies to “West Bank and Gaza Strip territory” and not to “all West Bank and Gaza Strip territories”, nor to “the West Bank and Gaza Strip territories”.

84 Article XVII(2)(a), Interim Agreement.

85 Article XI, Interim Agreement. See also paragraph F of this Part, infra.

86 Article XVII(8), Interim Agreement.

87 Article XVII(4)(a), Interim Agreement.

88 Article XVII(2)(b), Interim Agreement.

89 Article XVII(2)(d), Interim Agreement.

90 The civil spheres in which powers and responsibilities not related to territory are to be transferred to the Council in Area C are included in specific provisions to that effect throughout Appendix 1 to Annex III.

91 Protocol Concerning Legal Matters.

92 Article XX(5), Interim Agreement. On the civil jurisdiction of the Council, see infra.

93 Article XVII(4)(b), Interim Agreement.

94 Article III(2), Article V(2), Article IX(1)–(2), Interim Agreement.

95 Article V(2), Interim Agreement.

96 Article V(2), Interim Agreement.

97 Ibid.

98 Article IX(4), Interim Agreement.

99 Article IX(3), Interim Agreement.

100 Article XVIII(1)-(2), Interim Agreement.

101 Article XVIII(3), Interim Agreement.

102 Ibid.

103 Article XVIII(4)(a), Interim Agreement.

104 Article VII, Gaza-Jericho Agreement.

105 Article XVII(4)(a), Interim Agreement.

106 Article XVIII(6), Interim Agreement.

107 Article IX(6), Interim Agreement; see also Article VII(2), Declaration of Principles.

108 Article VIII, Interim Agreement.

109 Ibid.

109a On arrangements concerning legal matters in the Gaza-Jericho Agreement, see Fassberg, C. Wasserstein, “Israel and the Palestinian Authority: Jurisdiction and Legal Assistance” (1994) 28 Is. L.R. 318.CrossRefGoogle Scholar

110 Annex IV, Interim Agreement.

111 Singer, J., “Aspects of Foreign Relations Under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and Gaza” (1994) 28 Is. L.R. 268CrossRefGoogle Scholar, at 269.

112 Ibid., at 277–280.

113 Ibid., at 281–290.

114 Article VI(2)(a), Gaza-Jericho Agreement.

115 Article VI(2), Gaza-Jericho Agreement.

116 Article VI(2)(c), Gaza-Jericho Agreement.

117 Article IX(5), Interim Agreement.

118 Singer, supra n. 109, at 271–273.

118a Article 29, Appendix I, Annex III, Interim Agreement.

119 Article I(4), Interim Agreement.

120 Article I, Annex III, Interim Agreement.

121 Article X(4), Interim Agreement.

122 Article XII(1), Interim Agreement.

123 Ibid.; see also Article X(4), Interim Agreement.

124 Article XII(1), Interim Agreement.

125 Bethlehem, Jenin, Jericho, Qalqilya, Nablus, Ramallah, Tulkarem and parts of Hebron, to which special arrangements apply — see infra.

126 Article XIII(1), Interim Agreement.

127 Article XIII(2)(b), Interim Agreement.

128 Namely, Settlement and specified military locations, Article XI(3)(c), Interim Agreement.

129 Article XI(2)(c), Interim Agreement.

130 Article X(5), Interim Agreement.

131 Appendix 1, Annex I, Interim Agreement.

132 Article I, Annex I, Interim Agreement.

133 Article VII, Annex I, Interim Agreement.

134 Appendix 1, Annex I, Interim Agreement.

135 Article I(a) and Appendix 1, Annex I, Interim Agreement.

136 Singer, supra n. 1, at 10.

137 Article XII(1), Interim Agreement.

138 Article I(10), Annex I, Interim Agreement.

139 Reproduced in (1994) 28 Is. L.R. 440.

140 Essentially, these commitments consisted of a recognition of Israel's right to exist in peace and security, a commitment to a peaceful resolution of the conflict between the two sides, and a renunciation of the use of terrorism and violence.

141 Article 3; the letter is reproduced in 1994 (28) Is. L.R. 541.

142 Article XXXI(9), Interim Agreement (emphasis added — R.M.G.).

143 See Article XV, Declaration of Principles; Article XVII, Gaza-Jericho Agreement, and J. Singer, supra n. 5, at 10.

144 Article XXI, Interim Agreement.

145 Article XVI, Interim Agreement.

146 Ha'aretz, January 10, 1996.

147 As to the implementation of these arrangements, see also Part II of this Section.

148 H.C. 6230/95 (as yet unpublished; judgment was delivered on October 18, 1995).

149 See, for example: H.C. 2455/94 Irgun Betzedek v. The Government of Israel; H.C. 2713/95 Ha'aguda Leshmirat Zhuyot Hayhudim Be'eretz Israel v. The Prime Minister and Minister of Defense; H.C. 5218/95 Attorney Tzachi Hanegbi v. The Prime Minister and others (all cases referred to in this note were not published).

150 On the legal framework of the release in the peace process, see Part I of this Section, supra.

151 18 L.S.I. 111.

152 Jerusalem Post, October 11; October 13; October 19; October 26, 1995.

153 Who, incidentally, was not a respondent to the application.

154 Since the judgment was delivered, the Knesset has enacted on January 17, 1996, the Law Implementing the Interim Agreement on the West Bank and the Gaza Strip (Jurisdiction and Other Provisions) (Amendments) 5756–1996, supra n. 29. Section 3 of this Law entrusts the implementation of the relevant provisions of the Interim Agreement to a committee appointed by the Minister of Justice, and according to criteria determined by the government.

155 The Court refrained from ruling whether the Interim Agreement “imposes on the State of Israel an international commitment to release all prisoners and detainees”, considering this question unnecessary to the dispute before it (page 2 of the judgment.) The Court uses, however, the term “international agreement”. As to the status of the Israeli-Palestinian agreements in international law, see Y.Z. Blum, supra a. 6, at 211–213. The following analysis would therefore refer to an “international agreement”, irrespective of the international law status of the Interim Agreement. As to the status of international law within the Israel legal system, see Lapidoth, R., “International Law within the Israel Legal System”, (1990) 24 Is. L.R. 451Google Scholar; “International Law”, in Zamir, Y. and Colombo, S. (eds.), The Law of Israel: General Survey, (Faculty of Law, Haifa University, published by the Harry and Michael Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1995)Google Scholar; Benvenisti, E., “The Influence of International Human Rights Law on the Israeli Legal System: Present and Future”, (1994) 28 Is. L.R. 136.CrossRefGoogle Scholar

156 Lapidoth, supra n. 155, at 452.

157 Lapidoth, ibid., at 455.

158 Lapidoth, ibid., at 456; Benvenisti, supra n. 155, at 138.

159 Lapidoth, ibid., at 458; Benvenisti, ibid., at 138.

160 Lapidoth, ibid.

161 Benvenisti, supra n. 155, at 138, and the authorities cited there, at n.14; see also Lapidoth, at 468–472.

162 Benvenisti, ibid., at 138–141.

163 Ibid., at 139–140.

164 As opposed to a general amnesty (page 2 of the judgment, supra n. 148).

165 Ibid.

166 Ibid.

167 Leave to Appeal 7092/94 (as yet unpublished. Judgment was delivered on February 16, 1995).

168 The Magistrates' Court decision in Reinhold v. Her Majesty the Queen in Right of Canada (1991) (iii) P.M. 166 was reviewed in Cohen, B., “The Practice of Israel in Matters Related to International Law”, (1992) 26 Is. L.R. 559Google Scholar; see also Lerner, T., “The Practice and Case Law of Israel in Matters Related to International Law” (1993) 27 Is. L.R. 667.Google Scholar

169 Ibid.

170 Antabi v. Becker (1987) 41(ii) P.D. 697, asper President Shamgar; Zloti v. Zloti (1989) 43(iv) P.D. 41.

171 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division, and by Ms. Rina Assaf of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.