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Israel and the Palestinian Authority: Jurisdiction and Legal Assistance

Published online by Cambridge University Press:  04 July 2014

Celia Wasserstein Fassberg
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The Cairo Agreement on the Gaza Strip and the Jericho Area, signed on May 4, 1994, seeks to implement the Declaration of Principles on Interim Self Government Arrangements signed in Washington on September 13, 1993 and, in particular, to put into effect its Protocol on Withdrawal of Israeli Forces from Gaza and the Jericho Area. The primary purpose of the Agreement is then to transfer territory from Israel to the Palestinian Authority. Article V of the Agreement defines this territory as covering the Gaza Strip and Jericho, excluding the Settlements and the Israeli military installation area. The transfer of territory is naturally accompanied by a transfer of legal and political control from the Military Government to the Palestinian Authority. But the Agreement does not simply assign to the Palestinian Authority all legislative, executive and judicial functions within the territory transferred to its control.

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Israel Law Review , Volume 28 , Issue 2-3: The Peace Process , Spring–Summer 1994 , pp. 318 - 346
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 This Declaration followed an exchange of letters between Israel and the PLO which express mutual recognition and a commitment to peace.

2 The Cairo Agreement [hereinafter “the Agreement”] places itself within the more general framework of the Middle East peace process initiated in Madrid in 1991. The Parties express a shared desire to achieve a just and lasting comprehensive peace settlement through the agreed political process, a general commitment to peaceful coexistence, mutual dignity and security, the recognition of mutual legitimate and political rights, a shared understanding that the interim self government arrangements are an integral part of the whole peace process and that negotiations on the permanent status will implement Security Council resolutions 242 and 338.

3 These areas are all defined in Article I and shown on maps attached to the Agreement. The term “Settlements” includes the Gush Katif and Erez settlements as well as the settlements shown on the map. The term “Military Installation Area” means the Israeli military installation area along the Egyptian border in the Gaza Strip. The area transferred to the control of the Palestinian Authority will be referred to in this paper as “the Territory” (as distinct from “the territories”, which will be used to refer to the area of the West Bank administered by Israel since 1967, and still under Israel's control).

4 Article III.4 of the Agreement provides that after withdrawal of the Israeli forces and transfer of powers, the Civil Administration in the Gaza Strip and Jericho Area will dissolved and the Military Government will be withdrawn.

5 So too, as indicated by the definition of its territorial jurisdiction, internal security and public order in the Settlements are excluded from the powers of the Palestinian Authority.

Although the term “Israelis” is said to include “also” Israeli statutory agencies and corporations registered in Israel (Article I.d), the Agreement does not specify the fundamental meaning of the term. The Israeli implementing law defines the term for the purposes of Israeli Emergency Regulations governing some of these arrangements as persons registered in the Population Registry and corporations registered or established in Israel. (Section 2(2)(c) of the Law Implementing the Gaza-Jericho Agreement (Jurisdiction and other Provisions) (Amendments) 1994, S.H. 1497 (1994) p. 58). This definition does not include non-Israeli Jews, who are not registered in the Population Registry but who are eligible for citizenship under the Law of Return, although such people are considered Israeli for many of the purposes of Israeli law in the West Bank territories which continue to be administered by Israel.

Although foreign relations are explicitly excluded, this Agreement binds only the parties to it — Israel and the PLO. It is not clear what kind of entity is established in international law. Even if the agreement is regarded as an international agreement and even if the PLO, or perhaps more appropriately, the Palestinian Authority, is to be regarded as a subject of international law (see Benvenisti, E., “The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement” (1993) 4 European J. Int'l L. 542, at 542–545)CrossRefGoogle Scholar, it is not clear to what extent other states are free to treat the Palestinian Authority in a manner not consistent with the Agreement.

6 Article VII of the Agreement lays down the procedure whereby this legislative power will be exercised. No legislation will come into force until approved by a subcommittee of the Joint Civil Affairs Coordination and Cooperation Committee. The subcommittee can refuse to approve it if it exceeds the jurisdiction of the Palestinian Authority, if it deals with a security issue in the exclusive jurisdiction of Israel, if it seriously threatens other significant Israeli interests protected by the Agreement, or if its entry into force could cause irreparable damage or harm (no indication is given of the kind of damage or harm contemplated).

7 See Articles V and VI of the Agreement. These powers are established from a bilateral Israel-PLO point of view. This basis for such governmental powers is of course very different from the internal constitutional source of these powers from the perspective of the Palestinian Authority. Israel's acknowledgment of the existence of these powers also has no immediate significance or implications as far as other states or international organisations are concerned. The Palestinian Authority has the capacity to sue and to be sued, but since it is not a state, the doctrine of sovereign immunity will presumably not apply to it. As a result, it will be exposed to suit in any competent court, among other things, for any legal act for which it might be held liable (see infra n. 50). The relationship between the PLO and the Palestinian Authority is not defined. An interesting question is whether the Palestinian Authority could be held liable for injuries caused by PLO terrorist activities performed prior to the Agreement.

8 The existence of a separate legal system in the areas administered by Israel since 1967 was recognised and formally maintained by Israel throughout. The law existing in the territories prior to the Israeli administration remained in force subject only to modification by the Military Government. The recognition accorded by this Agreement does not create a new legal system. It merely signals the withdrawal of military control from these two existing, non-Israeli, systems and recognises their new unified political framework. The Agreement provides for similar continuity in substantive law despite the formal change: “Laws and military orders in effect in the Gaza Strip or the Jericho Area prior to the signing of this Agreement shall remain in force, unless amended or abrogated in accordance with this Agreement” (Article VII.9). This provision creates two interesting situations. The first — that the Palestinian Authority is committed formally to applying law imposed by the Israeli Military Government. The second — that the legal system to be applied by the Palestinian Authority in the Territory, which is made up of two separate territorial units — the Gaza Strip and the Jericho Area — is founded upon existing law, which is also made up of two separate legal units. The law in the Gaza Strip has British Mandatory law as one of its foundations, whereas, the law of the Jericho Area has as one of its foundations, Jordanian law. Integrating these into one system is a practical matter of no little difficulty. In the meantime, it is somewhat difficult to conceive of one legal system in the Territory.

9 The Agreement and the Protocol anticipate that the Contracting Parties will negotiate further legal arrangements.

10 It includes a specific agreement to cooperate and assist one another in criminal matters (Annex III, Article II). So much so that an offence committed in the Territory by an Israeli together with a Palestinian, will be investigated jointly (Annex III, Article II.2.b). The Cairo Agreement itself provides that the parties will cooperate in controlling criminal activity which affects both sides (such as smuggling and drug offences) (Article XII.2), that they will both take measures to prevent terrorism against each other's territory, individuals and property, and that they will take measures against offenders (Article XVIII). The Israeli police and other security forces are included in the scheme of cooperation. Article V.6 of the Agreement provides that the Parties will cooperate on matters of legal assistance through the Legal Subcommittee of the Joint Civil Affairs Coordination and Cooperation Committee. No procedures are established for such cooperation, and the Israeli implementing law simply appoints an official — someone who is eligible to serve as a District Court Judge to deal with legal assistance (Section 2(11) of the Law, supra n. 5).

11 Annex III, Article IV.1. This means that Israel will serve all documents in Israel and the Settlements (and also presumably in the rest of the West Bank), and the Palestinian Authority will serve all documents in the Territory, irrespective of the identity of the addressee. Since Israeli law permits service by mail, and since Israeli law explicitly authorises service in the Territory as if it were service in Israel, the problem of authorising Israeli officials to act outside Israel's territorial limits need not arise here (see infra, n. 13).

12 The commitment is very important for Israeli law since its jurisdiction in civil matters depends on the service of summons. This is true for service out of the jurisdiction too, which, however, requires leave of the court and is subject to judicial discretion, exercised in a closed list of circumstances. In 1969, Israel made special provision for service in all the administered territories in accordance with Israeli law, as if they were part of Israel, without having to obtain leave from the court (Rules of Civil Procedure (Service of Documents in the Administered Territories, 1969). This willingness to treat the territories as part of Israel for the purpose of serving documents was justified by the fact that, even though a separate legal system exists in the administered areas, no foreign sovereign is involved whose powers would be undermined by Israeli service of documents. The 1969 rules permit such service on anyone in “the area”. The “area” is defined as “any territory held by the Israel Defence Forces”. The Palestinian Authority is not a state, as we have seen. But Israel does recognise its territorial jurisdiction created by the transfer of territory from the Israel Defence Forces to the Palestinian Authority. It would thus seem reasonable to assume that the territory of the Palestinian Authority is not considered territory held by the Israel Defence Forces, and that under Israeli law, documents cannot be served there automatically. Leave must be obtained under rule 500 of the Rules of Civil Procedure to serve summonses and documents on people present in the Palestinian Authority, as in any case where documents are issued against people outside Israel. The reciprocal service of documents agreed upon by the Parties then becomes merely the technical means whereby such documents will reach their destination.

13 Annex III, Article II.9.a. These rules distinguish service on people present “in Israel” for the benefit of Palestinian proceedings from service of people present “in the Territory” for the benefit of Israeli proceedings. There is no explicit mention of service of documents in the Settlements for the benefit of either type of proceeding and since the terms “Israel” and the “Territory” are used, rather than referring to the territory under the control of the Parties (as in the civil context), the Settlements seem to be unregulated with respect to service of documents in criminal matters. In view of the arrangements just described, it is unlikely that the Parties contemplated that each side would serve its own documents in the Settlements. It is more likely that Israel was assumed to be in charge of service in all the areas under its control. But since the Settlements are not mentioned specifically, it could be argued that they are included in the term “Israel”. If this is the case, the Israeli police should serve summonses and subpoenas in these areas too. The powers of the Israeli police have, however, been held to be territorially limited, and they can exercise no powers outside Israel without specific authorisation.

Article V.3.b of the Agreement provides that Israel's authority over the Settlements will be exercised through the Military Government, “which, for that end, shall continue to have the necessary legislative, judicial, and executive powers and responsibilities in accordance with international law”. Israeli powers in the Settlements should then be exercised by the Military Government. The rules of the Military Government in the territories do provide authority for Israeli police acting in the territories under the command of the Military Commander and according to local law (see for example, Order Concerning Police Forces Acting in Coordination with the IDF (Judea and Samaria) (No. 52) (5727-1967) (amended in Order 105, 1968)). Consequent Orders authorised the police (or a soldier authorised to act as a policeman) to serve a witness with a subpoena from an Israeli court and enforce it, and to serve and enforce summonses on a defendant accused of committing a crime in Israel (Order Concerning Summons to Trial for Crimes Committed Outside the Area (West Bank Area) (No. 148) 5727-1967). For crimes committed in the administered territories, summonses can be served and enforced only if an arrest warrant has been issued by an Israeli court (Order Concerning Methods of Punishment (Various Rules) (Judea and Samaria) (Amdt. No.2) (No.278) 5728-1968). (If the Military Court in the territories conducts the proceedings, the military authorities also have the necessary auxiliary powers). In a large number of criminal matters, no such warrant will routinely be issued and, although of course they can be issued and enforced if the defendant does not obey the summons of his own free will, the procedure is likely to be unjustifiably protracted (see Rubinstein, A., “Israel and the Territories: Jurisdiction of the Courts” (1989) 14 Iyunei Mishpat 415Google Scholar.

The existing framework of the Military Government seems to be the only one for serving documents in the Settlements. These rules do not, however, provide Israeli police with the power to serve Palestinian summonses and subpoenas in the Settlements. More importantly, while local military authorisation exists for Israeli police activity in the territories and, presumably still in the Settlements too, there seems to be no formal Israeli source of authority for extending their functions beyond Israel's territorial boundary. One further question which might arise in this context is whether the authority exercised by the Military Government by virtue of the Agreement is different in nature from that which it exercises in the West Bank. The control of the Military Government in the West Bank derives from hostilities. Control by Military Government as a result of Agreement might well be somewhat different and consequently subject to different rules of international law.

14 The implementing Law does provide for appointing a person qualified to be a District Court Judge as the channel for authorising service as well as enforcement of judgments (see n. 5 supra). He is charged with ensuring that the conditions necessary to the legal assistance requested are fulfilled. These conditions are very limited, however, and the procedure whereby assistance is approved is very short and simple.

15 This clause deals with subpoenas only, not with summonses. It is not clear why. Nor is it clear whether the subpoenas mentioned are Israeli — since the clause comes at the end of a provision dealing with Israeli documents — or Palestinian, or both. Palestinian subpoenas might be directed towards Israelis in the Territory or the Settlements as witnesses. If the Israeli is a defendant, the summons will of necessity derive from Israeli courts, since the Palestinian Authority has no criminal jurisdiction over Israelis (see infra). Consequently, if the clause refers to Israeli documents, it is even less clear why summonses were not included, or how they should be served and enforced.

16 This is a little odd in view of the rules just described providing for service of summonses and subpoenas. See below on the provisions concerning the way in which such evidence will be taken.

17 This provision is a little surprising in view of the provision on serving subpoenas. Although it seems to correspond with the rule permitting each Party to summon witnesses for proceedings held in the territory of the other Party, that provision is brought in the criminal context, not in the chapter on civil legal assistance.

18 The transferable item is presumably that on which the prints or the blood stains are. The matching of the results with a person not in the local territory will presumably depend on the details of cooperation concerning transfer of information regarding fingerprints and other records of suspects.

19 Such testimony can be taken in the absence of an officer from the side requesting the testimony only in exceptional cases.

It is not clear from these provisions how a statement will be taken from an Israeli in the Territory, whether it is required for a Palestinian or an Israeli investigation. So too, it is not clear how statements are to be taken from Israelis in the Settlements. Israeli law does not empower the Israeli police to function under Israeli law outside Israel's borders. When they act in the territories they are under the authority of the Military Commander. I can find no authority specifically empowering him to investigate crimes under domestic Israeli jurisdiction for domestic Israeli authorities and to use any auxiliary powers such as the powers of search and seizure for that purpose, much less for the purposes of a Palestinian investigation.

20 As indicated above, it is not quite clear how this rule coexists with the rule that each party will serve subpoenas and summonses issued by the other side.

21 The provisions concerning such transfers do not apply to crimes subject to capital punishment, unless the other side undertakes not to impose it. Requests for transfer must specify the grounds for the request, and must be supported by a warrant issued by a competent court. If the suspect is in prison or detained, the transfer can be delayed till the end of his period of detention. Otherwise, the request shall be complied with. Treatment of transferees shall be in accordance with local legal arrangements and with international standards of human rights in criminal investigations. Transferees are entitled to legal assistance by a lawyer of their choice (but no provision is made for assistance by counsel in cases where the suspect has no means to finance it). Foreigners will be transferred to the Palestinian Authority from Israel only subject to conventions and in coordination with the suspect's state of origin.

In any case other than that of a Palestinian suspect requested by the Palestinian Authority, the Attorney-General must confirm that there is an evidentiary basis that the suspect committed the offence, and the offence must be one whose punishment is greater than 7 years according to the law of the requesting side (for lesser crimes, there are rules for investigation only). The scope of this provision needs clarification. The term “Palestinian” is not defined. Presumably it means residents of the Territory, and does not include Palestinian residents of the West Bank territories. Israelis will never be transferred to the Palestinian Authority since they are under the exclusive jurisdiction of Israel. Foreigners will be transferred from Israel to the Palestinian Authority subject to conventions or ad hoc coordination. Consequently, this provision seems to apply only to cases where Israel is requesting the transfer, or where the Palestinian Authority is requesting the transfer of a Palestinian who is not resident in Gaza or Jericho (i.e. is not a resident of the Territory). This protects Palestinians from transfer to Israel except in severe cases, and if “Palestinians” includes only residents of the Territory, it also protects non-resident Palestinians from transfer to the Palestinian Authority except in severe cases. It subjects resident Palestinians to transfer from Israel for any offence and with no guarantee of the evidentiary basis of the charges against him (and, if “Palestinians” refers to nonresidents too, they are also subjected to this relatively unlimited power of transfer).

22 The rules permit transfer of suspects and defendants for crimes whose punishment is less than 7 years only from Israel to the Palestinian Authority and only where the suspect is Palestinian. The provisions concerning investigation of such crimes make it possible both for Israel to investigate crimes which will later be prosecuted by the Palestinian Authority after the prisoner has been transferred, and for both Parties to have full investigatory material upon which to act even where transfer is not possible.

23 Annex III, Article II.5. This extraordinary provision in effect prepares the ground for eventual transfer or “extradition” of the suspect.

24 Annex III. Article IV.2.a. Clause c. deals with orders restraining individuals from travelling abroad specifically and permits each side to issue such orders for a matter being tried by that side. There is no indication, other than the fact that the clause granting this power stands on its own, that such orders are not included in the general rule, and are to have effect beyond the territory of the side issuing it.

25 Annex III, Article IV.2.b. It is not clear whether this means that the two Parties will establish a joint organ empowered to issue orders valid in both territories for such cases or rather that each Party will be able to issue interim orders for the benefit of proceedings taking place in the courts of the other. Despite the unfortunate use of the word “both” instead of “each”, the reference to “courts of the other Party” suggests that the intention was to permit each side to issue orders for the benefit of the other. This would place the Palestinian Authority in a better position in this regard than any foreign national legal system, since Israel does not issue such orders for foreign litigation.

26 Annex III, Article IV.4. The term “jurisdiction” is not defined here. In view of the important distinctions between different types of jurisdiction that can be relevant for the purpose of enforcement of foreign judgments (for example, the distinction between jurisdiction under the law of the issuing forum or under the law of the enforcing forum), the absence of a clear explanation of what is required here undermines the apparent simplicity of the enforcement process.

27 Although no such limitation appears in the Protocol, the Israeli implementing law provides for enforcement only of final judgments from the Palestinian Authority in Israel (Section 2(11) of the Law, supra n. 5). This is consistent with the fact that interim orders (which, by their nature, are not final) are treated separately. Nonetheless, the finality contemplated here — after all appeals have been exhausted — seems to correspond to the finality required in the Foreign Judgments Enforcement Law, 1958 (12 L.S.I 82) — exhaustion of the possibility of appeal (rather than that required in enforcement by action on the judgment — that the judgment be res judicata). Since, interim orders can be final in the required sense, it is not quite clear why they were treated separately.

28 Annex III, Article II.8. It is not clear what this reservation means: are the orders to be enforced as similar domestic orders are enforced, or are they themselves valid and enforceable only subject to local law?

29 Annex III, Article II.7.k. The implementing Law (supra n. 5) subjects this possibility to the consent of the convict concerned.

30 Israel has ratified this Convention. See Legal Assistance to Foreign States Law (Consolidated Version), 1977 (31 L.S.I. 102).

31 Israel has ratified this Convention too.

32 E.T.S. No. 30 (1959). Israel has also acceded to this Convention.

33 E.T.S. No. 112 (1983).

34 As for example in Iarael under the Foreign Judgments Enforcement Law, 1958, or by action on the judgment. The Law requires reciprocity, but it does not require that there be a treaty between Israel and the country in which the judgment was given. The action on the judgment does not even require reciprocity.

35 O.J. 1978, L. 304, pp. 77ff. Interestingly enough, the few bilateral treaties to which Israel is party do not significantly reduce the requirements for enforcement. See, for example, the treaty between Israel and the United Kingdom (22 K.A. 55 (1970)) and the treaty between Israel and the Federal Republic of Germany (26 KA. 667 (1977)).

36 Here again, interesting questions arise in international law. The document is a purely bilateral agreement (the United States, the Russian Federation and Egypt are involved only as witnesses). Even the internal constitutional documents which will establish legislative, judicial and executive functions within the Palestinian Authority have no external force as such. In view of the fact that the Authority is not a state, it is not at all clear how other states should treat its law, its acts, and its decisions in the realm of private law. Its law would probably be applied in a conflict-of-laws case simply as the law in force in the Territory, as a fact. The enforcement of its judgments might prove more difficult, since many systems enforce only judgments given by the courts of foreign states.

37 Annex III, Article III.1.

38 Annex III, Article III.2. This is a curious provision. Whose courts are bound by this provision and what does it mean? Does it mean that all local commercial law must apply, and that the Parties cannot contract out of it? By contrast, does it imply that Israelis are bound only by the local commercial law when they are in the Territory or perform legal acts there, and that no other portions of Palestinian law apply to them? Does it simply clarify that mandatory provisions of local commercial law will apply? If so, how does this self-evident idea coexist with the exemption of Israelis from local criminal law?

39 Other legal systems would have to be willing to apply the law of a system prevailing in a defined territorial area even though it is not the law of a recognised state.

40 Annex III. Article I.1.

41 Annex III, Article I.3.

42 Annex III, Article III.4.

43 See supra n. 5 on the definition of “Israelis”.

44 This provision is ambiguous. When is the subject matter of the action an ongoing Israeli business situated in the Territory? Does the business concern itself have to be the subject matter — its existence, its insolvency etc., — or can the relevant subject matter be a legal question concerned with its activities? The Israeli implementing law takes such cases out of the jurisdiction of Israeli courts, sec. 2(5) of the Law, supra n. 5.

45 The relationship between this provision and the next is unclear. When the subject matter of the action is real property situated in the Territory, and regardless of the identity of the plaintiff, is consent required of an Israeli defendant? Here too, the Israeli implementing law takes these cases out of the jurisdiction of Israeli courts.

46 Since consent of the defendant is sufficient to found jurisdiction, consent of the litigating parties can grant the courts of the Authority jurisdiction over virtually any case, regardless of the subject matter. Consent of the Contracting Parties is necessary in order to expand the jurisdiction of the Palestinian Authority over civil cases in which the parties, and particularly the defendant, are not willing to agree to its judicial jurisdiction.

47 This is because Israeli civil jurisdiction depends on service of summons. Service by right is territorially limited. Within the territory, it has virtually no limits, and anyone served within the territory is caught in the jurisdictional net.

48 Even Israelis cannot be subjected to the civil jurisdiction of Israeli courts by service as of right outside Israel. Leave has to be obtained from the court to serve process outside Israel. Only a number of specified links can found a request for service out, and the court has discretion even with respect to these. They do include Israeli residence, but not Israeli citizenship.

49 See n. 12 supra. Thus, not only are Palestinians not excluded from Israeli jurisdiction, but Israel's power to serve any defendant outside her borders in the administered territories and in the Territory is guaranteed. If the defendant is an Israeli in the Territory, the Protocol rules on service provide that Israeli authorities will even be responsible for serving the documents.

50 One of the first occasions on which the Authority was involved in a law suit in an Israeli court reveals the awkward status of this new political entity. An Israeli oil company — Pedesco — sought a temporary injunction against another Israeli oil company — Dor Energia — preventing it from performing its contract with the Palestinian Authority, under which, among other things, Dor was to supply three gas stations in the Jericho Area. Pedesco argued that this contract interfered with a pre-existing contract it had with the three gas stations, giving Pedesco exclusive supplying rights. In the first instance, the injunction was granted. On appeal, a judge of the District Court in Tel Aviv revoked the injunction arguing that Israeli courts are not authorised to intervene in matters of policy set by the Palestinian Authority in its capacity as de facto sovereign in the territory under its control (1726/94(Civil) (T.A.) 24.10.94 Judge Uri Goren, not unpublished).

The reasoning of this decision is not very dear. On the one hand, the judge seems to think that Israeli courts have no jurisdiction over such matters because the Cairo Agreement does not grant them any such jurisdiction. The jurisdiction of Israeli courts is, however, determined exclusively by Israeli law. Even if the Cairo Agreement had restricted Israeli judicial jurisdiction — and as we have seen, it did not — its provisions would have to be incorporated into Israeli law in order for them to bind an Israeli court. The unrestricted ability to sue and to be sued is probably the only provision in the Agreement relevant to Israeli jurisdiction. On the other hand, if the judge was referring to the doctrine of sovereign immunity, it clearly does not apply in this case for two separate reasons. The first is that the Palestinian Authority is not a state, and only recognised sovereign states enjoy sovereign immunity. The second reason is that, even if it were a state, the doctrine, as it is now understood in many countries including Israel, does not apply in commercial cases. Were a foreign sovereign state involved, an Israeli court could quite legitimately express an opinion on the case and even issue an injunction against the defendant foreign state or its commercial organs. Furthermore, in the matter under discussion, the Authority was not even a defendant; the oil company was.

The reluctance felt by the judge to interfere in this matter indicates that the political relationship between the parties makes it in some ways more awkward to take jurisdiction over commercial matters in which the non-sovereign Palestinian Authority is involved than it is to take such jurisdiction over foreign sovereigns. The Supreme Court affirmed the decision on a very narrow basis (Civil Motion for Leave to Appeal 5878/94, 14.11.94) without dealing with the question of sovereign immunity. The decision held that as a result of the Cairo Agreement and the Palestinian Authority's decision with respect to the supply of oil for the local population, local oil stations are no longer able to perform their contract with Pedesco. The balance of justice requires that the needs of the local population be preferred to Pedesco's interest in performance of the contract. Consequently, the discretionary remedy of an injunction was not justified in the circumstances. The court explicitly left open the possibility of a civil suit for compensation against the relevant party.

51 The jurisdiction in the Settlements and the jurisdiction over Israelis in the Territory may well be very different from one another. Israel's authority under the Agreement is to be exercised by the Military Government (article V.3.b of the Agreement). It is then presumably anticipated that the law in the Settlements will remain as it was and as it still is in the areas of the West Bank still administered by Israel: local criminal law, any criminal law introduced by the Military Government in the territories, and Israeli domestic law, as extended by Israeli law to Israeli residents of the territories (Emergency Regulations (Judea, Samaria and the Gaza Strip — Adjudication of Offences and Legal Assistance) 5727-1967, regulation 2(a)). In the Territory, by contrast, the Military Government no longer exists (article III.4 of the Agreement) except in order to exercise Israel's powers under the Agreement. The only law applicable in that Territory is Palestinian law (which might still include some pieces of earlier legislation, including military legislation), from which Israelis are immune, and Israeli law applicable in the Territory only to Israelis. This Israeli law will be only Israeli domestic criminal law, extended by virtue of the Agreement and by appropriate internal Israeli legislation. (The Israeli implementing law amends the Emergency Regulations to extend judicial and legislative criminal jurisdiction over Israelis in the Territory too. Sections 2(4) and 2(5) of the Law, supra n. 5).

52 Annex III, Article II.4. It is, however, not clear that the Palestinian Authority has criminal jurisdiction over such a case in view of the formal definitions given above.

53 Annex III, Article I.4 and Article II.3.a. Since Israelis are under exclusive Israeli jurisdiction, such an offence can only be under the law administered by Israel. In view of the rules described (giving Israel exclusive jurisdiction over Israelis in the Territory not under its control as well as in the territories which remain under her control) an Israeli may be arrested by Israeli forces in the Territory for an offence he committed in the Gaza Strip and Jericho Area. Interestingly, this power of arrest, exercised by the Military Government (Article V.3.b of the Agreement) does not distinguish between arrest under Israeli law, applying directly in the Territory — which is not under Israeli control — and arrest in the Settlements, under the amalgam of local, military and extended Israeli law (applying only to Israelis in the territories). Presumably, a non-Israeli found in the Settlements or Military Installation Area, suspected of committing a (local or military law) crime in these areas or in the territories, is also subject to arrest by Israel, under the ordinary rules of the Military Government.

It would seem that no one can be arrested by Israel in the Territory for a crime committed in the territories. By contrast, since Israel may arrest any Israeli suspected of committing an offence under Israel's criminal jurisdiction, it might seem that an Israeli suspected of committing an offence in Israel (which is clearly within her jurisdiction) may also be arrested in the Territory. It would be anomalous to exempt such cases from Israel's enforcement power unless they are subject to the rules concerning transfer of suspects. It is not clear that they are subject to these transfer rules since the Palestinian authorities are not permitted to arrest Israelis. See infra.

54 Annex III, Article II.2.C. Israeli documentation may be used for identification purposes.

55 Annex III, Article II.2.C. Ostensibly, this is because they are in the exclusive jurisdiction of Israel. But as the provisions on transfer of suspects and defendants demonstrate, enforcement jurisdiction does not have to be linked in this way to legislative and judicial jurisdiction.

56 Annex III, Article II.2.d. The provision requires that both these conditions be fulfilled.

57 Israeli authorities may arrest, search and detain Israelis found in areas under Palestinian territorial jurisdiction in which Israel performs security functions. But they shall notify the Palestinian Police, provide them with all relevant information, and coordinate where possible, and these powers do not derogate from the territorial jurisdiction of the Palestinian Authority. While the Palestinian Authority has no jurisdiction over Israelis, and while Israel has the power to enforce criminal jurisdiction over Israelis in the Territory, this requirement of coordination guarantees that Palestinian control in the Terrritory is not merely titular.

58 Where all the parties involved in such an offence are Palestinian, they will be transferred to the Palestinian Police (Annex III, Article II.4). Where only the perpetrator of the offence is Palestinian, and he is not found in the area under Israel's control, Israel may request his arrest and transfer (see infra).

59 In this context it is worth remembering that there is no provision for taking statements from Israelis in the Territory for Israeli or for Palestinian investigations (supra n. 19).

60 Annex III. Article I.4.b(1)

61 It is conceivable that he would be transferred to Israel thereafter in accordance with the rules on transfer of suspects.

62 Annex III, Article I.7. When Israelis commit such offences in the Territory they are under the exclusive Jurisdiction of Israel in any case. When such a crime is committed in the Territory by a non-Israeli, the Palestinian Authority undertakes to investigate and report to Israel on investigations and proceedings. The significance of the extraordinary Israeli power of arrest is then primarily for acts committed by non-Israelis including Palestinians outside Israel and outside the Territory.

63 Annex III, Article I.4.b(2). The provision reads: “In the event that such an individual is suspected of having committed an offense against Israel or Israelis and there is a need for further legal proceedings with respect to that individual…” It is not clear whether the reference to “such an individual” is simply to “a non-Israeli” as mentioned in the preceding subsection or rather to “a non-Israeli suspected of just having committed an offense in a place where Israel exercises security functions… arrested in that vicinity”. It is surely enough for the suspect to be a non-Israeli, since the type of crime anticipated by the power of arrest in a security area would be primarily a crime against Israel or Israelis.

64 Notably, none of these extraterritorial powen depend on double criminality.

65 Annex III, Article II.7.b.

66 The requirements that the crime be punishable by more than 7 years imprisonment and that there be a satisfactory evidentiary basis for the request apply.

It is not clear whether this provision can serve as a channel for “arresting” Israelis in the Territory for crimes committed in Israel. Since the Palestinian Authority cannot arrest Israelis in the Territory, it would seem that it is not. On the other hand, the provision refers generally to “an individual” and since the arrest is performed on the basis of a warrant issued by the other side, it is possible that this limited power of arrest was contemplated. If Israel is not empowered to arrest Israelis for such crimes in the Territory (supra n. 53), and if this provision does not empower the Palestinian Authority to transfer Israelis too, Israelis would be the only people exempt in the Territory from arrest for crimes committed in Israel (direct arrest by Israel or arrest by the Palestinians with a view to extradition).

67 Annex III, Article II.7.a.

68 Proclamation Concerning Law and Administration Order (West Bank Area) (No.2) 5727-1967, section 3.

69 Ibid., section 2. In the West Bank, the existing law was largely Jordanian law. In the Gaza Strip, it was primarily British mandatory law. I am grateful to Mr. Rajah Shehadeh for informing me on this point.

70 Emergency Order (Judea, Samaria and the Gaza Strip — Legal Assistance) (No. 2.) 5736-1976 (Israeli law), Order Concerning Legal Assistance (No. 348) 5730-1969 (Military Order). These provisions were reciprocal. The rules concerning enforcement of judgments are interesting. Israeli judgments were entitled to direct enforcement in the territories and local judgments were entitled to direct enforcement in Israel subject to no condition at all save public policy. This situation placed judgments from the territories in a far superior position to that of other foreign judgments. This cannot be explained by the power of Israel in the territories, since Israel did not influence the local rules of jurisdiction and did not exclude Israelis from local jurisdiction. Interestingly, the Protocol rules on judgments are now more stringent, since they do require jurisdiction. But at the same time, they are backed up by jurisdictional rules which exclude Israelis from local jurisdiction.

71 See Benvenirti, E., Legal Dualism, The Absorption of the Occupied Territories into Israel, (West Bank Data Base Project, 1989)Google Scholar; A. Rubinstein, “Israel and the Territories: Jurisdiction of the Courts”, supra n. 13. The question, what Israeli legal authority exists for employing Israeli officials under Israeli law outside Israel arises here too.

72 Benvenisti suggests that cases involving Israelis were brought in Israeli courts because of the inefficiency of local courts, and that for this reason, even in purely local disputes, local residents tried to use Israeli courts (ibid., at 23).

73 Rubinstein, supra n. 13, at 432-438.

74 Emergency Regulations (Judea, Samaria and the Gaza Strip — Adjudication of Offences and Legal Assistance) 5727-1967), regulation 2(a). This power is subject to the principle of double jeopardy, unless the crime caused death. Such prosecutions encountered a number of complex legal problems, as for example, where one of the elements of the crime was the absence of a permit or a license under the relevant Israeli licensing law. Should and could that element of the law be replaced by the relevant licensing authority in the territories? The technique whereby Israeli criminal law was extended was by a grant to Israeli courts of judicial jurisdiction over acts committed in the territories, which if committed in Israel would have constituted an offence. Unlike laws which were imposed on the settlers in the territories which have immediate enforcement powers and procedures and subject them directly to the powers of Israeli enforcment officials acting under these laws, the settlers did not come under the direct power of the Israeli police force acting under Israeli law. The Israeli police force was empowered to act in the territories under the command of the Military Commander of the Area. As a result, all the enforcement powers of the police were limited territorially, and they could perform only legal assistance functions which they were explicitly authorised to perform. Such authorisation existed for enforcing an Israeli summons on a defendant accused in an Israeli court of committing a crime in Israel, and for serving and enforcing subpoenas on witnesses for Israeli trials. For crimes committed in the territories, no power to enforce a summons existed unless an arrest warrant had been issued in Israel. These rules applied to anyone in the territories, whether local residents, Israelis or foreigners. Consequently, local residents who committed offences in Israel could also be “extradited” automatically if an arrest warrant had been issued in Israel. See Rubinstein, supra a. 13, at 425-427.

75 Emergency Regulations (Judea, Samaria and the Gaza Strip — Adjudication of Offences and Legal Assistance) 5727-1967, regulations 4A (information), 5 (witnesses), 4 (suspects). Transfer of suspects to Israel was provided for as described above.

76 Ibid., regulations 6 and 7.