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2012 | The law of belligerent occupation in the Supreme Court of Israel, by David Kretzmer, International Review of the Red Cross, vol 94, issue 885, Spring 2012

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 the Occupied Palestinian Territories (OPT).

This article by David Kretzmer (Hebrew University of Jerusalem) 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 the use of resources located in the occupied territories by Israeli companies. The author goes on to discuss the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OPT.

Of particular interest is the way the Israeli Supreme Court has developed a three-pronged test of 'proportionality' in weighing up actions harmful to Palestinian civilians against military or other security-related imperatives. The author argues that the Court has sometimes used proportionality to adjudicate a situaton which was really a question of legal authority. By side-stepping the more obvious question of whether Israeli military actors had the authority to act as they did,  legislative constraints on military commanders have been weakened, while the measure of their discretion has been icreased.

In his conclusion, Kretzmer considers that ‘in stressing the centrality of Article 43 of the Hague Regulations, in ruling that military commanders must find a balance between military needs and the welfare of the local population, and in subjecting this balance to the test of proportionality, the Court has helped to develop the law of belligerent occupation. Of even greater significance, has been the fact that in many cases, the threat of judicial review, submission of a petition, or remarks of the judges during the hearings have led the authorities to reconsider their position and back down, wholly or partially. Such review has been a welcome innovation and had a restraining effect on the acts of the authorities that cannot be judged solely by looking at the Courts jurisprudence.