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The law of belligerent occupation in the Supreme Court of Israel

  • David Kretzmer
Abstract

Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court's jurisprudence in these cases. After discussing issues of jurisdiction and the applicable norms, the article reviews the way in which the Court has interpreted military needs, the welfare of the local population, changes in the local law, and use of resources; the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OT; the introduction of a three-pronged test of proportionality in assessing military necessity; and hostilities in occupied territories. In the final section, I draw some general conclusions on the Court's contribution to the law of occupation.

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1 See, e.g., Roberts, Adam, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’, in American Journal of International Law, Vol. 84, No. 1, 1990, pp. 44103; Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, 1993; Dinstein, Yoram, The Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009.

2 See Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, State University New York Press, New York, 2002; Ben-Naftali, Orna, ‘PathoLAWgical occupation: normalizing the exceptional case of the Occupied Palestinian Territory and other legal pathologies’, in Ben-Naftali, Orna (ed.), International Humanitarian Law and International Human Rights Law, Oxford University Press, Oxford, 2011, pp. 129200.

3 See HCJ 256/72, Electricity Company for Jerusalem District v. Minister of Defence et al., 27(1) PD, p. 124, (1972) (hereafter Hebron Electricity case), in which the Court mentioned (at p. 136) that it was following the line taken in the first reported judgment relating to the OT: HCJ 337/71, Christian Society for the Holy Places v. Minister of Defence, 26(1) PD, p. 574 (1971). For a review of the Court's jurisdiction in petitions relating to the OT, see Nathan, Eli, ‘The power of supervision of the High Court of Justice over military government’, in Shamgar, Meir (ed.), Military Government in the Territories Administered by Israel, 1967–1980: The Legal Aspects, Harry Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1982, pp. 170–103.

4 Article 7(b) of Courts Law, 1957. In 1980 this provision became Article 15(d)(2) of the Basic Law: Judiciary. It now has constitutional status.

5 HCJ 393/82, Jami'at Ascan et al., v. IDF Commander in Judea and Samaria et al., 37(4) PD, p. 785 (1983).

6 See HCJ 102/82, Tzemel et al., v. Minister of Defence et al., 37(3) PD, p. 365 (1983) at para. 11, affirming that the Court had the competence to examine actions of the IDF in Lebanon during the 1982–1983 Lebanon War.

7 Security Provisions Order (West Bank), 1967, Art. 35, in 1 Proclamations, Orders and Appointments of West Bank Command 5.

8 See Blum, Yehuda Z., ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, in Israel Law Review, Vol. 3, 1968, pp. 279301. The territories occupied in 1967 included Northern Sinai, which was returned to Egypt under the peace agreement with that country, and the Golan, part of which is still occupied by Israel. The claims regarding the status of the West Bank and Gaza did not relate to those territories. For a summary of the various arguments that were raised to cast doubt on the status of the West Bank and Gaza as occupied territories, see D. Kretzmer, above note 2, pp. 32–34; Dayanim, Behnam, ‘The Israeli Supreme Court and the Deportations of Palestinians: The Interaction of Law and Legitimacy’, in Stanford Journal of International Law, Vol. 30, 1994, pp. 143150.

9 Security Provisions Order (West Bank), (Amendment No. 9), (Order No. 144), 22 October 1967, in 8 Proclamations, Orders and Appointments of West Bank Command 303.

10 See Shamgar, Meir, ‘The Observance of International Law in the Administered Territories’, in Israel Yearbook on Human Rights, Vol. 1, 1971, pp. 262277; D. Kretzmer, above note 2, pp. 33–34.

11 M. Shamgar, above note 10. For a review of the government's position on the application of GC IV, see 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)’, in Israel Law Review, Vol. 24, 1990, pp. 485506.

12 Christian Society case, above note 3; Hebron Electricity case, above note 3; HCJ 302/72, Hilu v. Government of Israel, 27(2) PD, p. 169, 1972; HCJ 606/78, Ayyub v. Minister of Defence, 33(2) PD, p. 113, 1978 (hereafter Beth El case).

13 D. Kretzmer, above note 2, pp. 35–40.

14 See HCJ 1661/05, Gaza Beach Regional Council et al., v. Knesset of Israel et al., 59(2) PD, p. 481, 2005, p. 514, where the Court stated that the framework of belligerent occupation has always been accepted by the Court and by all governments that have held office in Israel since 1967. The petitioners – Israeli settlers who were required to leave their homes under a law giving effect to the disengagement plan from Gaza – argued that Gaza (before the disengagement) was not subject to a regime of belligerent occupation. The Court dismissed the argument out of hand (Ibid., paras. 76–77).

15 See, e.g., Tzemel case, above note 6, pp. 371–374; HCJ 574/82 Al Nawar v. Minister of Defence et al., 39(3) PD, p. 449, 1985, pp. 458–459.

16 HCJ 9132/07, Jaber Al- Bassiouni Ahmed et al., v. Prime Minister et al., Judgment, 30 January 2008, available at: http://elyon1.court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf (last visited 22 May 2012).

17 See, e.g., Shany, Yuval, ‘The Law Applicable to Non-Occupied Gaza: A Coment on Bassiouni v. The Prime Minister of Israel’, in Israel Law Review, Vol. 42, No. 1, 2009, pp. 101116; Darcy, Shane and Reynolds, John, ‘An enduring occupation: the status of the Gaza Strip from the perspective of international humanitarian law’, in Journal of Conflict & Security Law, Vol. 15, No. 2, 2010, pp. 211243.

18 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, paras. 102–114.

19 See, e.g. Human Rights Committee, Concluding Observations on Third Report of Israel (29 July 2010), 3 September 2010, UN Doc. CCPR/C/ISR/CO/3, para. 5, available at: http://unispal.un.org/UNISPAL.NSF/0/51410EBD25FCE78F85257770007194A8 (last visited 22 May 2012).

20 HCJ 1890/03, Bethlehem Municipality et al., v. Ministry of Defence et al., 59(4) PD, p. 736, 2005 (hereafter Rachel Tomb case); HCJ 7957/04, Zaharan Yunis Muhammad Mara'abe et al., v. The Prime Minister et al., 60(2) PD, p. 477, 2005 (hereafter Alphei Menashe case); HCJ 10356/02, Yoav Hess et al., v. The Commander of IDF Forces in the Judea and Samaria et al., 58(3) PD, p. 443, 2004; HCJ 7015/02, Kipah Mahmad Ahmed Ajuri et al., v. IDF Commander in the West Bank et al., 56(6) PD, p. 352, 2002; HCJ 769/02, The Public Committee against Torture in Israel et al., v. The Government of Israel et al., Judgment, 14 December 2006 (hereafter Targeted Killings case), available at: http://elyon1.court.gov.il/files_eng/02/690/007/e16/02007690.e16.pdf (last visited 22 May 2012); HCJ 281/11, Head of Beit Icsa Local Council et al., v. Minister of Defence et al., Judgment, 6 September 2011, available in Hebrew at: http://elyon1.court.gov.il/files/11/810/002/m12/11002810.m12.pdf (last visited 22 May 2012).

21 See, e.g., HCJ 3239/02, Marab et al., v. IDF Commander in the West Bank et al., Judgment, 28 July 2002, English translation available at: http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.htm (last visited 4 January 2012); Hess case, above note 20.

22 In HCJ 253/88, Sajedia v. Minister of Defence, 42(3) PD, p. 801, 1988, pp. 815–817, 829, the Court applied this principle to a clash between an Israeli statute and Article 76 of GC IV, which states that protected persons accused of offences shall be detained in the occupied country. For discussion of the status of international law in the domestic courts of Israel, see Kretzmer, David, ‘Israel’, in Sloss, David (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, Cambridge University Press, Cambridge, 2009, pp. 273325.

23 Christian Society case, above note 3; Hilu case, above note 12.

24 Beth El case, above note 12, p. 120.

25 Ibid.; HCJ 390/79, Dweikat et al., v. Government of Israel et al., 34(1) PD, p. 1, 1979 (hereafter Elon Moreh case); Jami'at Ascan case, above note 5.

26 See, e.g., Ajuri case, above note 20, p. 364; HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel et al., 48(5) PD, p. 807, 2004, p. 827.

27 See, e.g., HCJ 5591/02, Yassin et al., v. Commander of Ketziot Detention Facility et al., 57(1) PD p. 403, 2002, p. 413.

28 See, e.g., Hess case, above note 20, para. 8; HCJ 3103/06, Shlomo Valero v. State of Israel, Judgment, 6 February 2011, para. 33, available in Hebrew at: http://elyon1.court.gov.il/files/06/030/031/r13/06031030.r13.pdf (last visited 22 May 2012).

29 Alphei Menashe case, above note 20, p. 523.

30 In HCJ 2690/09, Yesh Din et al., v. Commander of IDF Forces in the Judea and Samaria et al., Judgment of 28 March 2010, available in Hebrew at: http://elyon1.court.gov.il/files/09/900/026/n05/09026900.n05.pdf (last visited 22 May 2012), the petitioners argued that all provisions of GC IV are now regarded as part of customary law. The Court declined to rule on the argument but said that it would continue its practice of respecting the customary provisions of the Convention as part of the applicable law.

31 See, e.g., UNSC Resolution 446, 22 March 1979, UN Doc. S/RES/446 (1979); UNSC Resolution 452, 20 July 1979, UN Doc. S/RES/452 (1997); and UNSC Resolution 465, 1 March 1980, UN Doc. S/RES/465 (1980). The prohibition in GC IV, Art. 49, para. 6, on transfer of civilians of the Occupying Power into the occupied territory is not the only legal basis for the argument that establishment of settlements in the OT is unlawful. For a concise presentation of the other arguments, see Program on Humanitarian Policy and Conflict Research, ‘Policy brief: the legal status of Israeli settlements under IHL’, available at: http://opt.ihlresearch.org/index.cfm?fuseaction=Page.viewPage&pageId=773 (last visited 22 May 2012).

32 ICJ, Wall case, above note 18, para. 120.

33 Beth El case, above note 20; HCJ 258/79, Amira et al., v. Minister of Defence et al., 34(1) PD, p. 90, 1979.

34 Elon Moreh case, above note 25.

35 Beth El case, above note 20, p. 121; Elon Moreh case, above note 25, pp. 14–15.

36 HCJ 277/84, Ayreib v. Appeals Committee et al., 40(2) PD, p. 57, 1986. In this case, a Palestinian resident of the West Bank challenged a decision to declare land as government land, arguing that the land belonged to him. After his claim was rejected by the Appeals Committee that was established by a military order to hear appeals against such declarations, he petitioned the HCJ. The petitioner argued, inter alia, that the real intention behind declaring the land to be government land was to facilitate establishment of a settlement there, and that this was unlawful under Article 55 of the Hague Regulations, which deals with use of public land by an Occupying Power. The Court held that, if the land was indeed government land, ‘it does not appear from the language [of the text of Article 55] what the standing of petitioner is in this matter and what right he has to raise doubts about the way of dealing with property, which, as we have said, is government and not private property’ (Ibid., para. 9). This narrow view of the demand for standing in order to challenge the legality of government action has long been abandoned by the Supreme Court in its general jurisprudence: see, e.g., HCJ 910/86, Ressler v. Minister of Defence, 42(2) PD, p. 441, 1986. While most of the decisions liberalizing the rules on standing were delivered after the Ayreib decision, it is nevertheless difficult to accept that the narrow, formalistic, approach to standing in that decision reflected the general trend of the Court on the issue of standing at the time. In HCJ 3125/98, I'ad v. IDF Commander in Judea and Samaria, 58(1) PD, p. 913, 1998, the petitioners challenged a plan for the West Bank that would extend the area of an Israeli settlement. The Court interpreted the Ayreib judgment as implying that, as the Palestinian petitioners could not show how use of state lands covered by the plan affected their interests, there was no basis for their argument that in adopting the plan the authorities had exceeded their powers under international law (Ibid., p. 916).

37 HCJ 4481/91, Bargil et al., v. Government of Israel et al., 47(4) PD, p. 210, 1993. Chief Justice Shamgar held that the dominant nature of the issue of settlements was political, rather than legal, and that the Court should therefore leave the matter in the hands of the other branches of government. Justice Goldberg referred to the negotiations that were going on at the time between Israel and the Palestinian Liberation Organization, in which the settlements were a major issue of contention. He held that, since the case did not involve the claim of a specific private individual that his rights had been violated, it was one of those rare cases in which the Court should refrain from a judicial ruling that could be interpreted as interference in important political processes. See also I'ad case, above note 36. In HCJ 4400/92, Kiryat Arba Local Council v. Government of Israel, 48(5) PD, p. 587, 1992, the Court followed the same line when it rejected a petition by Israeli settlers challenging a government decision to freeze all building of settlements.

38 Beth El case, above note 12; Kiryat Arba case, above note 37; Gaza Beach case, above note 14.

39 HCJ 785/87, Afu et al., v. Commander of IDF Forces in the Judea and Samaria et al., 42(2) PD, p. 4, 1988, p. 17.

40 For criticism of the interpretation adopted by the Court, see D. Kretzmer, above note 2, pp. 48–52; Yoram Dinstein, ‘Deportations from Occupied Territories’, in Tel Aviv University Law Review, Vol. 13, 1988, pp. 403–416.

41 The leading case is HCJ 73, 87/53, Kol Ha'am v. Minister of Interior, 7 PD, p. 871, 1953.

42 Article 49, para. 1 of GC IV states: ‘Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive’.

43 The cases are discussed in D. Kretzmer, above note 2, pp. 43–52.

44 Ajuri case, above note 20.

45 For a critical analysis of this case see O. Ben-Naftali, above note 2, pp. 164–171.

46 Article 76, para 1, GCIV provides: ‘Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein…’.

47 Yesh Din case, above note 30, para. 7.

48 Ibid., para. 11.

49 Jami'at Ascan case, above note 5; Beit Sourik case, above note 26, para. 34, in which the Court refers to the many judgments in which it has emphasized this crucial principle of its jurisprudence on belligerent occupation.

50 Beth El case, above note 12.

51 Ibid., pp. 117–118.

52 While the authorities themselves relied on Article 52 of the Hague Regulations as the basis for the order requisitioning land, Justice Landau pointed out that it is not clear that this provision relates to immovable property (Ibid., pp. 129–131). Be this as it may, the Court accepted that under customary international law the Occupying Power has the authority to requisition land for the needs of the army of occupation. On this issue, see Y. Dinstein, above note 1, pp. 226–230.

53 Beth El case, above note 12, p. 131. Justice Landau repeated this approach in the Elon Moreh case, above note 25, p. 16.

54 Elon Moreh case, above note 25.

55 Jami'at Ascan case, above note 5, para. 13.

56 See, e.g., HCJ 202/81, Tabeeb et al., v. Minister of Defence et al., 36(2) PD, p. 622, 1981 (expropriation of land for construction of a road to circumvent a town); HCJ 1987/90, Shadid v. IDF Commander in Judea and Samaria (unreported judgment of 15 July 1990) (requisition of land for branch of the civil administration); HCJ 8286/00, Association for Civil Rights in Israel v. IDF Commander in Judea and Samaria (unreported judgment of 13 December 2000) (seizure of four schools to serve as military outposts during the first intifada); HCJ 401/88, Rian et al., v. IDF Commander in Judea and Samaria (unreported judgment of 24 July 1988) (requisition of a private apartment and roof of a building for a temporary military lookout).

57 See E. Benvenisti, above note 1, p. 9. In HCJ 2164/09, Yesh Din v. Commander of IDF Forces in Judea and Samaria et al., Judgment, 26 December 2011 (hereafter Quarries case), available in Hebrew at: http://elyon2.court.gov.il/files/09/640/021/N14/09021640.N14.htm (last visited 22 May 2012), para. 8, the Court stated: ‘As is well known, Article 43 has been recognized in our jurisprudence as a quasi-constitutional framework provision that sets out the general framework for the way the duties and powers of the military commander must be exercised in occupied territory’.

58 Project of an International Declaration Concerning the Laws and Customs of War, Brussels, 27 August 1874, Articles 2 and 3; The Laws of War on Land, Oxford, 9 September 1880, Articles 43 and 44.

59 Christian Society case, above note 3, p. 581.

60 See Y. Dinstein, above note 1, p. 89.

61 Tabeeb case, above note 56, p. 629.

62 Jami'at Ascan case, above note 5, p. 800.

63 Hebron Electricity case, above note 3.

64 HCJ 351/80, Electricity Company for Jerusalem District v. Minister of Energy and Infrastructure, 35(2) PD, p. 673, 1981, p. 692. For discussion of the difference in the judicial approach between the two electricity supply cases, see D. Kretzmer. above note 2, pp. 64–68.

65 Elon Moreh case, above note 25, p. 22.

66 Jami'at Ascan case, above note 5.

67 Ibid., p. 800.

68 Beit Sourik case, above note 26, pp. 829–830.

69 Quarries case, above note 57, para. 10.

70 The issue of quarries had been discussed in a previous case: HCJ 9717/03, Naale v. Supreme Planning Council in Judea and Samaria, 58(6) PD, p. 97, 2004. The petitions in this case were submitted by residents of Israeli settlements. While their concern was the pollution caused by a planned quarry in their area, they argued that permitting operation of the quarry was incompatible with Article 55 of the Hague Regulations. In a brief opinion, the Court held that even if the quarry would be exploiting natural resources this was permissible if it would benefit the local population, among whom Israeli settlers were to be included. Furthermore, the length of the occupation meant that the Occupying Power should be allowed to make changes that would have a long-term effect. As the authorities had shown that some of the stone to be quarried would serve the needs of people in the West Bank, the Court held that allowing opening of the quarry was not incompatible with Article 55 of the Hague Regulations.

71 According to figures submitted to the Court by the authorities, 94% of the stone from the quarries operated by Israeli companies was for use in Israel. Quarries case, above note 57, para. 1.

72 According to an estimate submitted by the authorities, even if the Israeli quarries were to continue to operate on the same scale for the next thirty years they would only exploit 0.5% of the quarrying potential on the West Bank: Ibid., para. 1.

73 Ibid., para. 11.

74 Ibid., para. 13.

75 Article 4, para. 1, of GC IV states: ‘Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’.

76 Hebron Electricity case, above note 3, p. 138.

77 Hess case, above note 20, p. 455; HCJ 9717/03, Naale case, above note 70, p. 104.

78 See, e.g., Tabeeb case, above note 56.

79 Jami'at Ascan case, above note 5, p. 811; Head of Beit Icsa Local Council case, above note 20.

80 Head of Beit Icsa Local Council case, above note 20, para. 27. The Court refused to rule on the merits in this case, as it held that the petition should be rejected on the grounds of laches (i.e. undue delay in submitting the petition).

81 See above note 70 and text accompanying notes 69–74.

82 HCJ 72/86, Zalum v. Military Commander, 41(1) PD, p. 528, 1987, p. 532. It must be pointed out that, in this case, the petitioners' counsel apparently did not argue that the commander may not consider the security of persons other than protected persons. Rather she argued that the real reasons for constructing the fence were to force the Palestinian storekeepers to leave their stores, rather than security.

83 See, e.g., HCJ 4363/02, Zinbakh v. IDF Commander in Gaza, Judgment, 28 May 2002, available in Hebrew at: http://elyon1.court.gov.il/files/02/630/043/A02/02043630.a02.pdf (visited 22 May 2012); HCJ 4219/02, Gusin v. IDF Commander in Gaza, 56(4) PD, p. 408, 2002, at p. 611. In both these cases, the Court rejected the argument that protection of the security of persons in Israeli settlements was not a legitimate security interest. The grounds given by the Court were that under the Oslo Agreements the status of the settlements was to be decided in the final stage agreements, and that until that time the commander was duty-bound to protect the security of all persons in the occupied territory.

84 Legal Consequences of Construction of the Wall, above note 18.

85 For discussion of the reasons for tying the legality of the barrier's route to the location of settlements, see Kretzmer, David, ‘The advisory opinion: the light treatment of international humanitarian law’, in American Journal of International Law, Vol. 99, No. 1, 2005, pp. 88102.

86 Beit Sourik case, above note 26; Alphei Menashe case, above note 20.

87 Alphei Menashe case, above note 20, p. 498.

88 See, e.g., HCJ 3680/05, Tene Local Committee v. Prime Minister of Israel (2006), para. 8, available in Hebrew at: http://elyon1.court.gov.il/files/05/800/036/A13/05036800.a13.htm (last visited 22 May 2012); HCJ 11651/05, Beit Aryeh Local Council v. Minister of Defence (2006), para. 8, available in Hebrew at: http://elyon1.court.gov.il/files/05/510/116/A05/05116510.a05.htm (last visited 22 May 2012); HCJ 2577/04, Al Hawaji et al., v. Prime Minister et al. (2007), para. 31, available in Hebrew at: http://elyon1.court.gov.il/files/04/770/025/N56/04025770.n56.htm (last visited 22 May 2012). In all these decisions, the Court repeated that ‘the authority of the military commander to construct the separation barrier includes his authority to construct a barrier to protect the lives and security of Israelis who reside in Israeli settlements in the area of Judea and Samaria, even though the Israelis residing in the area are not protected persons, as this term is defined in article 4 of the Fourth Geneva Convention’ (Tene Local Committee case, para. 8).

89 HCJ 2150/07, Ali Hussein Mahmoud Abu Safiyeh, Beit Sira Village Council Head, et al., v. Minister of Defence et al., Judgment, 29 December 2009, available at: http://elyon1.court.gov.il/files_eng/07/500/021/m19/07021500.m19.pdf (last visited 22 May 2012).

90 Jami'at Ascan case, above note 5.

91 Abu Safiyeh case, above note 89.

92 Ibid., para. 39. The Court suspended the declaration that the prohibition on use of the highway by Palestinian vehicles was invalid for a period of five months, in order to allow the commander to make new arrangements. Because of strict security checks at road-blocks, the new order promulgated by the military commander following the Court's judgment still resulted in severe restrictions on use of the highway by Palestinian vehicles. See B'Tselem (The Israeli Information Center for Human Rights in the Occupied Territories), ‘Route 443 – West Bank road for Israelis only’, available at: http://www.btselem.org/freedom_of_movement/road_443 (last visited 22 May 2012).

93 Hess case, above note 20.

94 See also Rachel Tomb case, above note 20.

95 For development of the argument that, in applying universal standards to all persons in the occupied territories, the Court has weakened the special protection that an Occupying Power is supposed to extend to protected persons, see Gross, Aeyal M., ‘Human proportions: are human rights the emperor's new clothes of the international law of occupation?’, in European Journal of International Law, Vol. 18, No. 1, 2007, pp. 135.

96 Christian Society case, above note 3.

97 See Y. Dinstein, above note 1, p. 122, and the authorities cited there.

98 HCJ 69/81, Abu Itta et al., v. IDF Commander in Judea and Samaria et al., 37(2) PD, p. 197, 1983 (hereafter VAT case).

99 See D. Kretzmer, above note 2, pp. 64–72.

100 VAT case, above note 98.

101 HCJ 507/85, Tamimi et al., v. Minister of Defence et al., 41(4) PD, p. 57, 1987.

102 See, e.g., Hague Regulations, Art. 52 (requisitions in kind and services not to be demanded ‘except for the needs of the army of occupation’); GC IV, Art. 27, para. 4 (permitting ‘such measures of control and security in regard to protected persons as may be necessary as a result of the war’); GC IV, Art. 49, para. 2 (total or partial evacuation of a given area permitted where ‘imperative military reasons so demand’); GC IV, Art. 53 (destruction of property forbidden except when ‘rendered absolutely necessary by military operations’); GC IV, Art. 78 (internment or assigned residence of protected persons where the Occupying Power ‘considers it necessary, for imperative reasons of security’).

103 See, e.g., Hilu case, above note 12; Beth El case, above note 12, pp. 125–126.

104 In German law, the notion is called Verhältnismäßigkeit. Originally employed in administrative law, it involves examining three questions: whether there is a rational connection between the administrative act and its legitimate purpose; whether it is the least invasive way of achieving that purpose; and whether the benefit outweighs the harm caused to the interests of others. The notion was adopted by the Canadian Supreme Court as a test for examining whether restrictions on liberties protected under the Canadian Charter are necessary in a free and democratic society and is now widely used in Israeli jurisprudence for examining the legality of governmental action and of restrictions on protected liberties. For a full exposition of the development of the term and its use in comparative constitutional law, see Barak, Aharon, Proportionality: Constitutional Rights and their Limitations, Cambridge University Press, Cambridge, 2011.

105 The classic definition of proportionality in ius in bello appears in Article 51, para. 5 of the First Additional Protocol to the Geneva Conventions, according to which an attack will be regarded as indiscriminate if it ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. According to the ICRC Study on Customary International Law, this principle is a norm of customary international law in both international and non-international armed conflicts: Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, Cambridge, 2005, p. 46.

106 Beit Sourik case, above note 26, para. 36.

107 Ibid., paras. 84–85.

108 Alphei Menashe case, above note 20, pp. 553–554. In HCJ 9593/04, Moraar v. IDF Commander in Judea and Samaria, 2006 Dinim (38), p. 345, the Court referred to the first prong of the proportionality test, namely the requirement for a rational connection between the measure and its security purpose. The Court held that a measure that is arbitrary, unfair, or illogical does not meet this requirement. Thus, imposing restrictions on the movement of Palestinians in order to protect them from potential violence by settlers was not a proportionate measure.

109 Abu Safiyeh case, above note 89.

110 Harpaz, Guy and Shany, Yuval, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’, in Israel Law Review, Vol. 43, 2010, pp. 514550.

111 Abu Safiyeh case, above note 89.

112 See G. Harpaz and Y. Shany, above note 110. The writers argue that by including the interests of Israeli commuters on the road when assessing the proportionality of the commander's decision to prohibit use of the road by Palestinian vehicles the Court expanded the powers of a military commander in occupied territory.

113 Quarries case, above note 57.

114 Abu Safiyeh case, above note 89.

115 See G. Harpaz and Y. Shany, above note 110.

116 HCJ 5510/92, Turkmahn v. Minister of Defence, 48(1) PD, p. 217, 1992.

117 See D. Kretzmer, above note 2, pp. 145–163.

118 See the dissenting opinions of Justice Cheshin in HCJ 5359/91, Khisrahn v. IDF Commander in Judea and Samaria, 46(2) PD, p. 150, 1992; HCJ 2722/92, Alamarin v. IDF Commander in Gaza, 46(3) PD, p. 693.

119 Turkmahn case, above note 116.

120 See Watkin, Kenneth, ‘Maintaining Law and Order during Occupation: Breaking the Normative Chains’, in Israel Law Review, Vol. 41, 2008, pp. 175200.

121 See D. Kretzmer, above note 85.

122 Legal Consequences of the Construction of the Wall, above note 18, para. 124.

123 See K. Watkin, above note 120; Y. Dinstein, above note 1, pp. 99–101.

124 See Eiland, Giora, ‘The IDF in the second intifada: conclusions and lessons’, in Strategic Update, Vol. 13, No. 3, 2010, pp. 2737, available at: http://www.inss.org.il/upload/(FILE)1289896504.pdf. In blue and hyperlinked (last visited 2 July 2012). It has never been clear why the words ‘short of war’ were added. The idea was probably to make clear that the armed conflict was not one of an international character.

125 See Report of the Sharm el-Sheikh Fact-finding Committee (the Mitchell Report), citing statements submitted by the Government of Israel, available at: http://www.mideastweb.org/mitchell_report.htm (last visited 22 May 2012).

126 Ajuri case, above note 20, pp. 358–359; Targeted Killings case, above note 20.

127 Ajuri case, above note 20. The Court listed the number of attacks on Israel and Israeli nationals, and the number of casualties that had been caused since violence started in October 2000.

128 Alphei Menashe case, above note 20.

129 Ibid., para. 17.

130 Ibid.

131 Ibid.

132 For a principled discussion of this issue, see K. Watkin, above note 120.

133 The main judgment on this question was handed down in HCJ 4764/04, Physicians for Human Rights v. Commander of the IDF in the Gaza Strip, Judgment, 30 May 2004, English translation available at: http://62.90.71.124/eng/verdict/framesetSrch.html (last visited 22 May 2012). For a detailed review of the cases, see Kretzmer, David, ‘The Supreme Court of Israel: Judicial Review During Armed Conflict’, in German Yearbook of International Law, Vol. 47, 2004, pp. 392456.

134 Marab case, above note 21.

135 HCJ 3799/02, Adalah et al., v. Officer Commanding IDF Central Command et al., 60(3) PD, p. 67, 2006.

136 Ibid., para. 3.

137 Ibid., para. 24.

138 For the most comprehensive discussion of this topic, see Melzer, Nils, Targeted Killing in International Law, Oxford University Press, Oxford, 2008. See also Kretzmer, David, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Self-Defence?’, in European Journal of International Law, Vol. 16, No. 2, 2005, pp. 171212; Ben-Naftali, Orna and Michaeli, Keren, ‘“We Must Not Make a Scarecrow of the Law”: A Legal Analysis of the Israeli Policy of Targeted Killings’, in Cornell International Law Journal, Vol. 36, 2003, pp. 233292.

139 See HCJ 5872/01, Barakeh v. Prime Minister, 56(3) PD, p. 1, 2002, in which the Court dismissed a petition relating to the issue as non-justiciable.

140 Targeted Killings case, above note 20.

141 For discussion of various aspects of the Court's decision, see the articles in the Journal of International Criminal Justice, Vol. 5., No. 2, 2007: Roy S. Schondorf, ‘The Targeted Killings Judgment: A Preliminary Assessment’, pp. 301–309; Cohen, Amichai and Shany, Yuval, ‘A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case’, in Journal of International Criminal Justice, Vol. 5, No. 2, 2007, pp. 310321; Orna Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’, pp. 322–331; William J. Fenrick, ‘The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities’, pp. 332–338; Antonio Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’, pp. 339–345. See also O. Ben-Naftali, above note 2, pp. 171–177.

142 Targeted Killings case, above note 20.

143 Ibid., para. 40.

144 See Y. Dinstein, above note 1, p. 100.

145 See A. Cohen and Y. Shany, above note 141.

146 See O. Ben-Naftali, above note 2.

147 See D. Kretzmer, above note 2, pp. 189–191.

* The writer would like to thank Efrat Bouganim-Saag for her able research assistance.

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International Review of the Red Cross
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  • EISSN: 1607-5889
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