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The Human Rights Lawyer's Existential Dilemma - The Occupation of Justice, The Supreme Court of Israel and the Occupied Territories. David Kretzmer [New York, SUNY Press, 2002] 262 pp.

Published online by Cambridge University Press:  04 July 2014

Michael Sfard
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Book Review
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Israel Law Review , Volume 38 , Issue 3 , Fall 2005 , pp. 154 - 169
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2005

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Footnotes

*

Advocate, practicing human rights and criminal law in Tel-Aviv, representing in the past Israeli soldiers who refused to serve in the Occupied Territories and Palestinians suing against the separation barrier.

References

1 H.C.J. 337/71 The Christian Society for the Holy Places v. The Minister of Defense 26(1) P.D. 574 (For an English summary see (1972) 2 Isr. Y.B. Hum. Rts. 354).

2 I reject the argument, which can be heard from time to time by human rights neutralists, according to which there must not be a linkage between objecting human rights violations and objecting the occupation. As the occupation is the source for an undemocratic regime, for blatant (ethnically motivated) inequality and for absence of basic civil rights, the occupation in itself is a human rights issue. Therefore, in examining the Courts contribution or damage to human rights, one must examine the Courts role in strengthening or weakening the occupation as legal and political entity.

3 Johnson v. Eisentrager, 339 U.S. 763 (1950).

4 Rasul, et al. v. Bush, 124 S. Ct. 2686 (2004) The American Supreme Court has ruled that the “respective jurisdictions” of Courts in the federal habeas statute relate to the area where the officials responsible for the detention are present rather than the areas were the detainees are held, thus enabling jurisdiction to American federal courts.

5 Kretzmer, David, The Occupation of Justice, The Supreme Court of Israel and the Occupied Territories (New York, SUNY Press, 2002) 19–25 Google Scholar.

6 Ibid., at 25-29.

7 The Christian Society for the Holy Places v. The Minister of Defense, supra n. 1.

8 H.C.J. 256/72 Electricity Corporation for Jerusalem District, Ltd. v. The Minister of Defense 27(1) P.D. 124, at 136 (For an English summary see (1975) 5 Isr. Y.B. Hum. Rts. 381 Google Scholar).

9 Kretzmer, supra n. 5, at 20-21.

10 H.C.J. 302/72 Khelou v. The Government of Israel 27(2) P.D. 169 (For an English summary see (1975) 5 Isr. Y.B. Hum. Rts. 384)Google Scholar (hereinafter: “the Rafiach Case”).

11 Kretzmer, supra n. 5, at 43-44.

12 The Israeli argument is based on the second article of the Fourth Geneva Convention which determines that the Convention will apply to “all cases of partial or total occupation of the territory of a High Contracting Party.” Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, art. 2, 75 U.N.T.S. 287. See Kretzmer, supra n. 5, at 33-34 and his references to Esther Cohen, R., Human Rights in the Israeli-Occupied Territories 1967-1982 (Manchester, Manchester University Press, 1985) 43–56 Google Scholar and Bar-Yaacov, Nissim, “The Applicability of the Laws of War to Judea and Samaria (the West Bank) and to the Gaza Strip (in response to Prof. R. Lapidoth)” (1988) 24 Is.L.R. 485 CrossRefGoogle Scholar; See also Professor Blum's approach: Blum, Yehuda Z., “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is.L.R. 279 CrossRefGoogle Scholar.

13 It is amazing to see how to this day the Court refrains from reevaluating it's ruling on the status of the Fourth Geneva Convention, though the Court appreciates that since the early seventies much has changed, giving sound basis for a claim that the convention has become customary international law. For a good example of the Court's reluctance to rule on the status of the convention see H.C.J. 7015/02 Ajuri v. The IDF Commander in the West Bank 56(6) P.D. 356 (An English translation of this judgment is available at http://elyonl.court.gov.il/files_eng/02/150/070/a15/02070150.a15.HTM (last visited September 2005)). I have developed the argument that the Convention is customary international law in several legal cases, not decided yet (among others: H.C.J. 769/02 Public Committee Against Torture in Israel v. the Government of Israel 53(4) P.D. 817 the policy of assassinations case) and also in: Sfard, Michael, “International Litigation in Domestic Courts: Between Legal Dilution and Judicial Separatism” (2004) 9 HaMishpat 161 [in Hebrew]Google Scholar.

14 See supra the text accompanying n. 12.

15 Kretzmer, supra n. 5, at 40-42.

16 Ibid., at 20; Shamgar, Meir, “Legal Concepts and Problems of the Israeli Military Government— The Initial Stage” in Shamgar, Meir, ed. Military Government in the Territories Administrated by Israel 1967-1980, The Legal Aspects (Jerusalem, Sacher Institute for Legislative Research and Comparative Law, 1982) 13, at 43 Google Scholar.

17 Kretzmer, supra n. 5, at 20 refers to Shamir, Ronen, “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice” (1990) 24(3) Law and Soc. Rev. 781, at 795 CrossRefGoogle Scholar, and also to: Shelef, Leon, “The Green Line is the Border of Judicial Activism: Queries about the Supreme Court Judgments in the Territories” (1993) 17 Tel-Aviv U. L. Rev. 757 [in Hebrew]Google Scholar.

18 For a good example of the Courts problematic interpretation of international law, see Kretzmer's analysis of the Court's decisions in deportation cases (Kretzmer, supra n. 5, at ch. 10). For an example of a process of broadening the military's powers see Kretzmer's analysis of the Court's jurisprudence in house demolition cases (Kretzmer, supra n. 5, at ch. 9).

19 Everybody remembers that the Israeli Supreme Court has outlawed the usage of torture means in security interrogations. The Court is very happy to cite its own decision and to consider it as a landmark case. But legal history shows that there is very little to be proud of. A first petition against the use of torture was filed in 1991 and dismissed by the court (see H.C.J. 2581/91 Morad Adrian Salahat v. The Government of the State of Israel 47(4) P.D. 837). It took the Court almost six years to render its famous decision in the second and successful petition (H.C.J. 5100/94 Public Committee Against Torture in Israel v. The Government of Israel 53(4) P.D. 817) (An English translation of this judgment is available at http://elyonl.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM (last visited September 2005)). During those years the Court has refused numerous requests for interim measures and thus thousands Palestinians were tortured while the case was pending.

20 See H.C.J. 97/79 Awad v. The Commander of Judea and Samaria Region 33(3) P.D. 309 (For an English summary see (1979) 9 Isr. Y.B. Hum. Rts. 343)Google Scholar; H.C.J. 698/80 Kawasme v. The Minister of Defense 35(1) P.D. 617 (For an English summary see (1981) 11 Isr. Y.B. Hum. Rts. 344)Google Scholar; H.C.J. 785/87 Afu v. The Commander of the IDF Forces in the West Bank 42(2) P.D. 4 (For an English summary see (1993) 23 Isr. Y.B. Hum. Rts. 277)Google Scholar.

21 H.C.J. 253/88 Sajedia v. Minister of Defense 42(3) P.D. 801 (For an English Summary see (1993) 23 Isr. Y.B. Hum. Rts. 288)Google Scholar.

22 Kretzmer, supra n. 5, at 45-54.

23 Christian Society for the Holy Places v. The Minister of Defense, supra n. 1.

24 See the Rafiach case, supra n. 10; H.C.J. 606/78 Ayub v. The Minister of Defense 33(2) P.D. 113 (For an English Summary see: (1979) 9 Isr. Y.B. Hum. Rts. 337)Google Scholar (hereinafter: “the Beit-El case”).

25 H.C.J. 390/79 Dweikat v. The Government of Israel 34(1) P.D. 1 (For an English Summary see (1979) 9 Isr. Y.B. Hum. Rts. Google Scholar (hereinafter: “the Elon-Moreh case”).

26 H.C.J. 4481/91 Bargil v. Government of Israel 47(4) P.D. 210 (hereinafter: “the Peace Now case”); H.C.J. 606/78 Suliman Toufik Uyav v. The Minister of Defense 33(2) P.D. 113 (hereinafter: “the Maaleh-Adumim case”).

27 H.C.J. 209/73 La'Afi v. The Minister of Interior 28(1) P.D. 13; H.C.J. 500/72 Al-Teen v. The Minister of Defense 27(1) P.D. 481.

28 Kretzmer, supra n. 5, at 111.

29 Ibid (my emphasis M.S.).

30 H.C.J. 2716/ 01 Dir Asthia Council v. The Military Commander (unpublished).

31 H.C.J. 2977/ 02 Adalla v. The IDF Commander 56(3) P.D. 6.

32 H.C.J. 9252/ 00 El-Saka v. The State of Israel (unpublished).

33 H.C.J. 4219/ 02 Gusin v. The Military Commander 56(4) P.D. 608.

34 H.C.J. 8286/ 00 The Association for Civil Rights in Israel v. The Military Commander (unpublished).

35 H.C.J 2056/ 04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807. (For an English translation see (2005) Is.L.R. 83)Google Scholar.

36 Kretzmer, supra n. 5, at 188-189.

37 H.C.J. 87/85 Arjov v. The Military Commander 42(1) P.D. 353.

38 Kawasme v. The Minister of Defense, supra n. 20.

39 Ajuri v. The IDF Commander in the West Bank, supra n. 13.

40 H.C.J. 5973/92 The Association for Civil Rights in Israel v. The Minister of Defense 47(1) P.D. 267 (hereinafter: “the Hamas Deportation case”) (For an English summary see 23 (1993) Isr. Y.B. Hum. Rts. 353)Google Scholar.

41 Kretzmer, supra n. 5, at 189-190.

42 See Dotan, Yoav, “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice During the Intifada” (1999) 33(2) Law and Society Rev. 319 CrossRefGoogle Scholar.

43 Kretzmer, supra n. 5, at 190.

44 Ibid., at 190-191.

45 See supra the text accompanying n. 2.

46 Kretzmer, supra n. 5, at 198.

47 Ibid.

48 Kretzmer, supra n. 5, at 190.

49 On October 2, 2003, the Military Commander issued a set of orders governing the “seam zone” — the zone between the 1967 seize fire lines and the separation fences and walls Israel is building. Those orders declare the seam zone “a closed military area.” The orders further state that the declaration will not apply to Israeli citizens, Israeli residents and people who have a right of return under the Israeli law of return. The legality of those orders were challenged in several High Court of Justice proceedings, including one litigated by the author of this comment, but none have yet been decided (H.C.J. 9961/03 HaMoked: The Center for the Protection of the Individual v. The Government of Israel et. al. (not yet published)).

50 Coetzee, John M., Waiting for the Barbarians (Harmondsworth, Middlesex, Penguin Books, 1980) 135 (emphasis added M.S.)Google Scholar.