MILITARY GOVERNMENT IN THE TERRITORIES

ADMINISTERED BY ISRAEL 19671980

THE LEGAL ASPECTS

 Military Government
in the Territories Administered by Israel
1967 - 1980

The Legal Aspects

Volume I

Edited by

Meir Shamgar

Hebrew University Jerusalem — Faculty of Law

The Harry Sacher Institute for Legislative Research

and Comparative Law

JERUSALEM, 1982
 LEGAL CONCEPTS 23

Syrian areas of control, the division of the Sinai into two adminis-

trative military government units was induced by pragmatic reasons:

Northern Sinai was comparatively more inhabited and included the
town of El-Arish with about 31000 inhabitants, and the civil govern-
ment problems expected to arise were therefore similar if not identical
to those of the Gaza Strip with 350000 inhabitants. The rest of the
Sinai Peninsula had only a very sparse nomad Bedouin population, a
fact which engendered inter alia the need for special organisational
arrangements in relation to the supply of basic commodities and the
welfare of the population. Moreover because of the large distances
and initial difficulties of communications the connection with Central
and Southern Sinai was mainly by air and any attempt to govern these

areas from the Gaza Strip HQ in the town of Gaza was in practice
not feasible.
Every regional military government entity was headed by a Military
Commander, appointed by the Chief of Staff of the IDF who was
termed initially “CCommander of the IDF in the and who
operated with the aid of his Military Government HQ which included
civil government elements as well as ordinary military staff officers
dealing with operations, logistics and manpower.
Each region was sub-divided for military purposes into districts
headed by district-commanders. This sub-division followed, as far as
possible and practical, the administrative divisions of the former
governmental systems.?? The military commander of the IDF in every
region was operationally subject to the appropriate territorial com-

20 Under British Mandatory rule )19221948( these areas were termed respectively
the Samaria and Jerusalem Districts. (See Article 11 of Palestine Order-in-Council
1922 and Administrative Divisions Proclamation of 1 June 1924 as amended
by the Proclamation of 1 July ,1939 Supplement No. 2 of the Palestine Gazette,
Extraordinary, No. ,900 vol. II, p. ).487
21 The title was changed later to “Commander of the Region”.
22 Initially, the organisation and manning of the sub-district commands, was based

on the idea of a territorial extension of the IDF Internal Territorial Defence

Regions which had existed since the early fifties and were a territorial sub-
division of the IDF Territorial Commands. Each territorial command was
divided into territorial defence regions. These regions practically adjacent to

enemy sub-districts were therefore intended to serve as the nucleus of military

government in such sub-districts subject to the military commander of the whole
region. This idea was discarded very soon after the establishment of military
administration in Judea and Samaria. Thereafter military government at all levels
became an independent and self-sufficient unit, not relying on other military
 CONTENTS

Preface

Map of the Region

Abbreviations and Terms 11

I. Legal Concepts and Problems of the Israeli Military Govern-

ment — The Initial Stage Meir Shamgar 13

.11 On the Legal Status of the Gaza Strip Carol Farhi 61

Ill. Ramat Hagolan 19181967 Dr. Ya’akov Meron 85

IV. The Power of Supervision of the High Court of Justice over

Military Government Eli Nathan 109

V. The Military Courts Dr. Zvi Hadar 171

VI. Applicability of Multilateral Conventions to Occupied Ter-

ritories Prof. Theodor Meron 217

VII. Local Government in Judea and Samaria Moshe Drori 237

VIII. The Reports of the U.N. Special Committees on Israeli Practices

in the Territories—A Survey and Evaluation Tat-Aluf Dov Shefi 285

IX. Development of Oil Resources in Sinai Dr. Meir Rosenne 335

X. The Religious Courts in the Administered Territories

Dr. Ja’akov Meron 353
Map: Jordan-Israel Armistice Lines 368

APPENDICES

Appendix A: Selected Judgments of the Supreme Court of Israel 371

.1 The Beth-El Case .J.C.H( 60678 and )61078 371
.2 The Matityahu Case .J.C.H( )25879 398
.3 The Elon Moreh Case .J.C.H( )39079

Appendix B: Statistical Tables 442

l. Inhabitants 442
.2 Births and Infant Mortality 442
.3 Entries from Abroad 443
.4 Israeli and Local Personnel in Health, Welfare and Education
Services 444

Education — Schools and Classes 445

Education — Pupils and Teachers 446

‫ספ‬
‫סן‬
‫כג‬ Higher Studies in Judea and Samaria 447

Vocational Training Graduates )19681980( 448

House Utensils 448

1 Motor Vehicles 449

1 Activity of Local Courts in Judea and Samaria 449

Appendix C: Selected Proclamations and 8 450

Proclamation on Law and Administration

— No. 2 450

Protection of Holy Places Order

— No. 327 452

Courts Order (Ramat Hagolan) — No. 273 453

Abandoned Property of Private Individuals Order

— No. 58 465

Objections Committees Order

— No. 172 469

Claims Order — No. 271 472

Security Provisions Order (Consolidated Version )1980 — No. 378 476

. Rules of Criminal Responsibility for Offences Order —

No. 225 488

.9 Defence in Military Courts Order — No. 400 492

.10 Interpretation Order

— No. 130 495

Table of Cases 507

Index 513
 PREFACE

Fifteen years of Military Government in the territories administered

by Israel since the Six Days War of 1967 merit an extensive legal

survey and a retrospective examination of legal concepts, trends and

modes of action.
It is the aim of this volume to trace the main legal concepts and
principles which have shaped and influenced the Military Government,
to survey the legal situation which preceded the establishment of the
Military Government to the extent warranted by these studies and to
describe in detail the various facets and spheres of legal activity con-
nected with Military Government.
The legal survey has been divided according to the major fields of
activity. It has therefore not been found possible to cover all relevant

areas and subjects and this volume must be regarded as the first in
a series which will follow and present additional summaries, lessons
and conclusions in the varying areas considered and demonstrate the

many ramifications of the complex and topical problems involved.

It should be stressed that the views expressed in the different studies
represent only those of the author and not necessarily of the sponsoring
institute or of any official governmental authority.
The initiative of the successive heads of the Harry Sacher Institute
for Legislative Research and Comparative Law, Prof. Claude Klein,
Prof. Y.Z. Blum, Prof. A. Yoran and Prof. Gavriela Shalev brought
this volume into being and I am deeply indebted to them for their
encouragement. |
Furthermore, I would like to thank the editors of the American
Journal of International Law for their kind permission to reprint the
study of Prof. Theodor Meron on “The Applicability of Multilateral
Conventions to Occupied Territories” and the Ministry of Justice for
its kind permission to reprint the study of Mrs. Carol Farhi on the
Gaza Strip.
Last but not least I am deeply indebted to Mr. Peter Elman, former
Assistant Attorney General, for his invaluable and devoted assistance
and his experienced approach to the editorial work.

M. S.
Jerusalem, 1982
 Preface to the First Reprint

The research included in this volume presents the principles upon which the
Israeli military government has administered the territories since .1967
When the first edition ran out of print, the Hebrew University made the
praiseworthy decision to publish this first reprint. For this, my special appreciation
is extended to Professor Eliahu Harnon, presently the Head of the Harry Sacher
Institute for Legislative Research and Comparative Law.
Six years have passed since this volume was published and many legally relevant
events have taken place. However, the intensity of events has not detracted from
the relevance of the basic legal principles expounded in the studies. Moreover, the
importance of these underlying principles has even increased.
Legal issues which arose in the last few years in the territories administered by
Israel have been brought repeatedly before the Israeli Supreme Court sitting as the
High Court of Justice. Many areas of international law were thoroughly surveyed
for the first time at the Supreme Court level and there have been legal questions
which were presented for the first time before any court of law. Thus, the Supreme
Court dealt in the Abou-Ita case .C.H( ,493 6981 37 P.D. Vol. ,2 p. )197 with the
question whether the military government was empowered by international law to
impose Value Added Tax in the territories. In this context, the court examined the
question whether preference of the economic ties and developments in the
territories in the last twenty years and the economic interests of the inhabitants was
conformable to the restrictions imposed by the Hague Rules of .1907 In H.C.
29282 (Isskan v. Military Commander 37 P.D. Vol. ,4 p. ,)785 the court dealt with
the legal effects of long-range occupation on the legal discretions and on
administrative considerations in view of the provisions of Article 43 of the Hague
Rules of .1907
The Nazal case .C.H( ,514 51385 39 P.D. Vol. ,3 p. )645 and the Afou case
.C.H( ,78587 42 P.D. Vol. ,2 p.4) dealt extensively with the question of the legality
of the deportation to an Arab country of members of Arab terrorist organizations.
These are only some of the scores of important cases from the territories which
have been brought before the Supreme Court in recent years.
The need to continue the research and to publish at present a second volume of
this series which will present further surveys of developments and new areas of
interest, has become even more logical, especially in light of the recent uprising in
the territories .)adafitnI( This task is as yet before us.

Jerusalem, 1988 M.S.

SIX-DAY WAR-Cease Fire Lines 1967

Armistice line 1949

Cease fire 1967

Mediterranean Sea

Abu Aweigila,
216 km . j ‫ס‬

Bue BirHasana,

‫א‬

© Copyright, Carta, Jerusalem

 Abbreviations and Terms

The books and articles referred to in this volume are quoted with their full titles
and the date of their publication. Certain conventions, publications and terms which
are very often referred to, are generally quoted in an abbreviated form, as follows:
AJIL — The American Journal of International Law
BMML — The Law of War on Land, being Part III of the Manual of
Law, London, H. Maj. Stationary Office, ,1958 ed. by Sir Hersch Lauterpacht,
.06 LLD.
BYIL — The British Year Book of International Law
CGS — Chief of General Staff of the IDF
Coll. P. & O. Gaza — Collection of Proclamations and Orders Gaza Strip and
Northern Sinai (all collections are published in Hebrew and Arabic)
Coll. P. & O. Northern Sinai — Collection of Proclamations and Orders of Northern
Sinai
Coll. P. & O. Southern Sinai — Collection of and Orders of Southern
Sinai
Coll. P. & O. Ramat Hagolan — Collection of Proclamations and Orders Ramat
Hagolan
Coll. P. & O. .J( & S.) — Collection of Proclamations and Orders Judea and Samaria
Commentary — Commentary to the Fourth Geneva Convention
published under the General editorship of Dr. Jean S.
Pictet by the International Committee of the Red
Cross, Geneva 1958
First Geneva Convention — Geneva Convention for the Amelioration of the Con-
dition of the Wounded and Sick in Armed Forces in the Field, signed Geneva,
12th August 1949
Second Geneva Convention — Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, signed Geneva, 12th August, 1949
Third Geneva Convention — Geneva Convention Relative to the Treatment of
Prisoners of War, signed Geneva, 12th August, 1949
Fourth Geneva Convention — Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, signed Geneva, 12th August, 1949
Von Glahn — Dr. Gerhard von Glahn, The Occupation of Enemy Territories, Univ.
of Minnesota, 1957
Greenspan — Morris Greenspan, The Modern Law of Land Warfare, Berkeley, 1959
Hague Regulations — Regulations Respecting the Laws and Customs of War on
Land. Annex to the International Convention Concerning the Laws and Customs
of War on Land, signed at The Hague, 18th October, 1907
F. — Israel Defence Forces
ISLR — Israel Law Review
Is. Manual — Manual for the Military Advocate in Military Government, published
by Military Advocate General’s Headquarters.

11
 M. SHAMGAR 12

Is. Y. H.R. — Israel Yearbook on Human Rights, Vol. I )1971( ed. by Prof. Y.
Dinstein, Faculty of Law, Tel Aviv University
Oppenheim — International Law by L. Oppenheim, 7th ed. by Sir H. Lauterpacht,
Vol. I ;)1948( Vol. II )1952(
Rules of Land Warfare — Rules of Land Warfare, Basic Field Manual (FM )2720
United States War Department, .1956

— Selected Judgments of Military Courts published by the Military Advocate

General’s HQ, IDF
SPO — Security Provisions Order; first published on 7th June 1967 as Annex to Pro-
clamation No. ,3 and carrying the title Security Provision Order (Judea and
Samaria) .oN( ,)3 57271967 .lloC( P. & O. .J( & S.) ,1 p. ;)5 republished
on Ist May 1970 in an amended and consolidated version as Order No. 378
of Judea and Samaria .lloC( of P. & O. .J( & S.) ,21 p. .)733 Additional
Consolidated Version published by Military Advocate General’s H. .2 in .1980

The terms ”noigeR“ or ”aerA“ have both been used in relation to each of the

separate regional entities of military government in Judea & Samaria, Gaza, Sinai
and Ramat Hagolan, respectively, and are therefore identical in meaning.
 CHAPTER I

LEGAL CONCEPTS AND PROBLEMS OF THE ISRAELI

MILITARY GOVERNMENT — THE INITIAL STAGE

By Meir Shamgar*

A. INTRODUCTION

The Israeli Military Government in the Administered Territories

was constituted in consequence of the military developments during the
Six Days War in ,1967 the moment each of the territories—the Gaza
Strip, Sinai, Judea and Samaria and the Golan—actually came under
the control and authority of the Israeli Defence Forces. The assump-
tion of the legal power of military government took place instan-
taneously in every place, village, town or other area upon the Israeli
forces ejecting the opposing enemy forces and establishing effective
military control, namely, even before special military government units

or officials assumed administrative functions. Immediately on conquer-

ing any part of enemy territory, commanding officers of the fighting
units established their authority not only militarily but also govern-
mentally. The legal rights and duties of military administration gene-
rally, and the duty to restore public order and safety specifically, were
integral outcomes of effective succession of power. Proclamation No. ,1
published in Hebrew and Arabic and posted in identical in all
major localities of the territories which the IDF entered, stated in its

very first article that:

“The Israel Defence Forces have today entered this area and as-
sumed responsibility for security and maintenance of public
order”’.

Not only did this proclamation bring to notice the factual effect of

* Justice of the Supreme Court of Israel; former Military Advocate General -1961(
;)1968 former Attorney General of Israel .)19681975(
The views expressed in this article are the author’s and are not necessarily those
of any Israeli official authorities.
Coll. P & O, Gaza p. ;4 Judea and Samaria p. ;3 Sinai p. ;4 Golan p. .4
13
 14 M. SHAMGAR

the withdrawal of the opposing military forces? but it expressed as well

the quintessence of the legal approach of the Israeli forces, as ex-
pounded in 1967 and thereafter.
The course thus adopted and the intent and purpose accompanying
the publication of the proclamation were described in 1967 as follows:

“This Proclamation should not be regarded as the legal basis of

IDF control of these areas, or as the authority for the adminis-

trative bodies appointed by the Army. When a military force

assumes control of an area formerly under the control of a

defeated enemy, the very fact of effective control gives the mili-
tary commander his authority, and in him are vested the con- .
comitant rights and obligations. Under the usages of war, it does
not matter whether he was appointed specifically to be the gov-
ernor of the area or whether he was the commander of the mili-
tary force, whatever its size, that captured it. A company com-
mander taking a village is in the same position as the general
commanding an army occupying an entire area. Both, in respect
of the actual areas which they took, replace the control of the

enemy who has been worsted and is thus prevented from exercis-
ing his authority. Such military commanders assume authority
for executing their country’s war aims and, at the same time,
also accept responsibility for administration and the maintenance,

as far as possible, of public order. Whether or not the area was

under the undisputed sovereignty of the enemy is of no impor-
tance: there are circumstances in which military government is
imposed on areas which had formerly been under the control of
the nation whose army, or whose allies, now occupy them as
‘liberated

Nevertheless, it is customary—although not obligatory—for the oc-

cupying military force to proclaim and make known its authority, and
it is to this end that Proclamation No. 1 was issued.+
In other words, the proclamation was not constitutive but only
declaratory.

BMML, para. ,504 p. .142

to

3 Meir Shamgar, “The Law in the Area Held by the Israel Defence Forces”, Public
Administration in Israel and Abroad 1967 (Jerusalem )1968 .42
* Sce also Meir Shamgar, “The Law in the Administered Territories” )1967( 23
HaPraklit .540
 LEGAL CONCEPTS 15

Since those early days in the beginning of June 1967 the Israeli
Military Government became a governmental system applying the

norms of international law pertaining to the administration of territory

taken over from hostile military forces more extensively and more
diversely than most if not all other military administrations in this
century with regard to both the frequency and intensity of the ap-
plication of these norms and the duration of time which has passed
since it was first established.
That does not mean that there have not been cases of areas being
held by conquering forces in consequence of war for a longer period
than the Israeli Military Government has held the Administered Ter-
ritories since 1967 (see e.g. Okinawa), but in these cases legal pro-
blems were solved by an approach which treats the rights of the
conquering forces, even after subjugation of the adversary only tem-
porarily, according to principles which are less restrained by the norms
of international law relating to occupied territory, than those based

on the Fourth Geneva Convention. Moreover, as will later be men-

tioned in detail, although on the one hand the Israeli military govern-
ment system has been one of the most censured and criticized by
majority votes of several U.N. bodies and other international institu-
tions, several experts and observers have remarked® on the other
hand that it was in practice more orthodox in its adherence to
the principles of international law and their implementation than most
other military governments in our epoch.
This apparent anomaly can be put in another way. Whilst, for

reasons yet to be presented, Israel expressed its serious doubts as to

the applicability of the Fourth Convention to the territories in ques-
tion and was not ready to declare formally that the Convention ap-
plies, it decided to distinguish between the problem of applicability
in law of the Convention and the de facto observance of its humanita-
rian provisions. The result was, in practice, that Israel has observed
the customary norms of international law whether codified or not
to a far larger extent than most other countries that have found them-
selves in a similar situation, albeit they formally accepted -the ap-

5 E.g. Julius Stone, No Peace-No War in the Middle East ,yendyS( Maitland Publica-
tions, )1969 ;8 Morris Greenspan, “Human Rights in the Territories Occupied by
Israel”, 12 Santa Clara Lawyer, ;377 idem, “The Protection of Human Rights in
Time of War” )1971( 1 Is. Y. H. R. ,228 .240
 16 M. SHAMGAR

plicability of the relevant norms of international law. This juxtaposi-

tion of application and applicability of norms of international law
was summed up some years ago as follows:

“Due consideration should be given to the difference between

the questions connected with the observance of these rules and
the prior question of the applicability of a certain set of rules
to given circumstances. In other words, de facto observance of
Tules does not necessarily mean their applicability by force of
law. There are cases of undisputed applicability of rules of law
followed by no implementation and even no protests or censure,
and there are, on the other hand, cases of the voluntary obser-
vance of certain rules, unconnected with acceptance of their legal

To pass from generalities to particulars, a concise description of the

main belligerent and political developments relevant to the subject
will be followed by a detailed consideration of the basic Israeli con-
cepts on military government in its initial stages.

B. THE BACKGROUND

The roots of the Six Days War go back to the deep-seated hostility
of the Arab States towards Israel and their declared intent and purpose
to end its existence. The War of ,1967 the third between Israel and
its neighbours, was one link in the chain of belligerent acts which
were designed at first to prevent the reestablishment of Jewish in-
dependence—a stage which culminated in the invasion of 15 May
1948—and which had later the aim to eliminate Israel.

6 Meir Shamgar, “The Observance of International Law in the Administered Ter-

ritories”, )1971( 1 Is. Y. H. R. .262
7 In one of the numerous expressions of the aims of war, the joint Statement of
President Nasser of Egypt and President Aref of Iraq of 25 May 1965 stated:
“The Arab national aim is the elimination of Israel”.
The verbal expressions of hostility were naturally not less systematic and
forthright than actual military and terrorist activities. For most of the time
Egypt and Syria, which for a certain period even created a consolidated political
entity named the United Arab Republic ,)RAU( were the main catalysts of the
processes of animosity and belligerency. Since the early sixties, their aims were
served by the different Palestinian terrorist groups created either on their initiative
or with their active assistance, which later on were consolidated into the PLO at
the Arab summit meeting in Cairo in January .1964
 LEGAL CONCEPTS 17

The immediate causes of the war are to be found in the escalation

which occurred during the second half of May and early June .1967
In February ,1966 after the ninth revolution since ,1949 the Ba’ath
party rose to power in Syria and enjoyed from the beginning the active
backing of the USSR.® As one means of warfare against Israel, Syria
took under its patronage a terrorist organisation which was part of
the PLO, the Fatah, and organised and encouraged terrorist incursions
into Israel. In April ,1967 numerous terrorist attacks on civilian ob-.
jectives in Israel initiated from bases in Syria took place. Consequent

on Israeli countermeasures and in order to further Soviet political

aims in the Middle East by the creation of tension and active belli-
gerency, the USSR spread officially the allegation that Israel had con-
centrated large forces along her northern borders and was about to
attack
The Egyptian Government was almost certainly aware from the

very outset of the crisis that these reports were Israel

immediately denied the reports and even invited the Soviet Ambassa-
dor in Israel to visit any place he chose along the armistice lines in
order to verify the facts, but the invitation was disregarded. On 18
May 1967 the Secretary-General of the UN confirmed in an aide-
memoire to the Egyptian delegate to the UN, “on the basis of fully
reliable reports received from the Chief of Staff of UNTSO in Pales-
tine’, that there were no indications of troop movements or concen-
trations along any of the lines which gave rise to undue On
14 May Field Marshal Amar of Egypt issued Battle Order No. ,1
calling for mobilization of Egypt’s armed forces and deploying
all units to forward positions. On 15 May Egyptian armour and in-

8 See inter alia the comprehensive description of “Soviet Policies in the Middle
East” by O. Tuganova in 3 International Affairs ,wocsoM( March .)1966
¥ See inter alia Soviet Government Statement of 24 May 1967 published in Pravda
of the same date.
10 At the trial in Cairo in 1968 of Shams Badran, a former Minister of Defence,
the following testimony was given:
“General Fawzi was sent to Syria before the war to check Syrian and Soviet
allegations of Israeli military concentrations on the Syrian frontier. He dis-
covered that these allegations were unfounded”. (Middle East News Agency,
24 February .)1968
11 A/6669; S/7869.
12 The forces assigned to Sinai and finally deployed up to the Armistice Lines with
Israel included two armoured and five infantry divisions, totalling 90000 men
and 900 tanks.
18 M. SHAMGAR

fantry passed through the streets of Cairo in an atmosphere of public

war-frenzy and entered The next day the Egyptian Chief of
Staff, General Fawzi, instructed General Rikhye, Commander of the
UN Emergency Force to withdraw his troops from their positions
along the armistice lines and from Sharm-el-Sheikh where they had
been stationed since March 1957 as part of the security arrangements
that accompanied the Israeli withdrawal from Sinai at that
Two days later Mahmoud Riad, the Egyptian Foreign Secretary,
wrote to the Secretary-General of the UN requiring that an end be
put to the presence of the Emergency Force in Sinai and the Gaza
Strip and that this force be withdrawn as soon as possible. On 19 May
UN Forces positions were evacuated and Egyptian units took over.
As became known later, already on 18 May the UAR Eastern Com-
mand HO had issued to the Egyptian forces operational orders to
invade the Negev, cut off its southern edge and seize On the
evening of 22 May whilst the UN Secretary-General was on his way
to Cairo in an attempt to prevent war, President Nasser announced
the closure of the Straits of Tiran which had been kept open since
1957 under the supervision of the UNEF and denial of right of pas-

sage to Israeli ships or goods. Israel had repeatedly stated that it

would regard such a blockade as a casus belli. One day later, Nasser
made known that Egypt would welcome military support from other
Arab States.
The Israeli Government decided in the circumstances to adopt a
waiting policy and on 23 May Foreign Minister Abba Eban left for
Paris, London and Washington in order to try and persuade the

13 These arrangements included: )a( free passage through the Gulf of Eilat and
the Straits giving access thereto, a promise subscribed by the US and other ma-
ritime states; )b( the establishment of a UN Emergency Force in Sinai and the
Gaza Strip in order to separate Egypt and Israel; )c( opening of the Suez Canal
for transit of goods to and from Israel, a promise which was never honoured.
In a television talk on 20 February 1957 President Eisenhower stated: “We should
not assume that, if Israel withdraws, Egypt would prevent Israel shipping from
using the Suez Canal or the Gulf of Aqaba. If, unhappily, Egypt does hereafter
violate the armistice agreements or other international obligations, then this should
be dealt with firmly by the society of nations”. When Israel attempted in 1967 to
enlist the aid of the Western Powers or any of them in order to prevent the
one-sided annulment of the 1957 arrangement for the stationing of UN Forces
in Sinai and the Gaza Strip, none extended any effective political or other support.
14UAR Eastern Command HQ Office of the Chief of Staff, Ed/3/1967/124; Battle
Order .367
 LEGAL CONCEPTS 19

Western Powers to prevent the closure of the Straits, to bring about

a termination of the direct and imminent menace to and to

convince Egypt to withdraw its troops from Sinai.
On 23 May, the Syrian Prime Minister and his Chief of Staff ar-
rived in Cairo, followed the next day by the Algerian Chief of Staff
and an envoy of the King of Morocco. Simultaneously, Iraq an-
nounced the dispatch of troops to Egypt, Syria and Jordan. On
25 May, it was reported that Saudi troops were deployed in the vicinity
of Aqaba, and at the end of May troops from Kuwait landed in
‫א‬ Egypt. On 30 May King Hussein of Jordan arrived in Cairo. Within

a few hours, an Egyptian-Jordanian defence pact was signed. Clause

7 of the pact put the Jordanian army under Egyptian command and
the Egyptian General Abd el-Muna’am el-Riad was appointed com-
mander of the Eastern front. On 4 June, the Iraqi Foreign Minister
signed a similar pact with Egypt. On the eve of 5 June the situation
could be summed up, from the Israeli point of view, as follows:
Egypt had closed the Straits of Tiran and imposed a blockade on
Israel’s southern maritime approaches.

Arab communications media focused on incitement of the population against

Israel. The style can be exemplified by the following excerpts from numerous and
continuing public statements and publications:
Cairo Radio, 25 May: “The Arab people is firmly resolved to wipe Israel off the

map and restore the honour of Palestine”.

President Nasser in a speech on 26 May: “The Arab people wants to fight. We
have been waiting for the right day when we would be fully prepared... Re-
cently, we have felt strong enough to triumph, with God’s help, if we enter into
battle with Israel. On that basis, we have decided to take actual measures. Sharm
el-Sheikh implies a confrontation with Israel. Taking this step makes it imperative
that we be ready to embark on total war with Israel’.
President Nasser at a press conference on 28 May: “Israel’s existence in itself is

an act of aggression... We accept no kind of coexistence with Israel”.

President Nasser in the National Assembly on 29 May: “Preparations have already
been made. We are now ready to confront Israel... Now we are ready for the
confrontation”.
CiC of the Egyptian Land Forces, General Murtaghi, on 3 June: “The historic
moment has arrived.... You must put your heart and body into the holy war in
which you are about to engage for the restoration of the plundered Arab rights
in Arab Palestine”.
President Aref of Iraq on 1 June on Radio Baghdad: “We are resolved, deter-
mined and united to achieve our clear aim of wiping Israel off the map.... This
is the day to wash away the stain. God willing, we shall meet in Tel Aviv and
Haifa”.
Ahmed Shukeiri, charman of the PLO, in an interview on 2 June with the
20 M. SHAMGAR

The Arab leaders made no secret of the fact that their aim was a

war in which Israel would be destroyed; the minimum objective which

they set themselves was to cut off certain parts of Israel.
In view of the concentration of Arab forces along its borders and
the Arab statements on the objectives of the war, Israel had to mo-
bilize its own forces.
Arab armies under unified command were massed along all Israel’s
borders at a distance from its centres of between 10 km. and 50
km., and in Jerusalem even closer. Seven Egyptian divisions in the
Sinai desert and the Gaza Strip, two of them armoured, were deployed
at a distance of between one to three hours’ march of Eilat, Beer-
sheba and other centres of population in southern and central Israel.
Nearly the entire strength of the seven infantry and two armoured
brigades of the Jordanian army was concentrated in the West Bank
and the Jordan Valley. By way of reinforcement, two Egyptian com-
mando battalions were deployed in the Latrun area, midway between
Jerusalem and Tel Aviv. Both these cities were within range of Jor-
danian artillery. An Iraqi division, including 150 tanks, was concen-
trated in the East Bank of the Jordan and was making its way to
the West Bank. An Iraqi squadron was attached to the Jordanian air
force.
Saudi forces were concentrated in the vicinity of Aqaba, facing

Almost the whole Syrian army, a force of five infantry and five
armoured brigades, was concentrated on the Golan Heights. The
Syrian air force had about 120 planes.
It was clear that, though many countries were sympathetic and
understanding, not a single one was prepared to take any practical
steps to induce Egypt and the other Arab States to reverse their acts
of continuous escalation.
In the face of Israel’s complete encirclement as described above and
the imminent danger rising from the massing of forces along the
armistice lines with declaredly offensive intent, the only alternative
left open to it was to take action in

“Morning Star” (organ of the British Communist Party) when asked about the
fate of native-born Israelis after Arab victory: “Those who survive will remain
in Palestine, but I estimate that not many of them will survive”.
16 An Editorial Comment by Stephen M. Schwebel in )1970( 64 AJIL 344 con-
tained the following observation:
 LEGAL CONCEPTS 21

Israel took action against the Egyptian and Syrian air-forces on

5 June and its columns advanced into the Sinai peninsula and the
Gaza Strip where the Egyptian troops were deployed, in the direction
of Rafiah and El-Arish in the north, Abu Agaila and Bir Gafgafa in
the centre and El-Qusseime in the south. Sharm el Sheikh was cap-
tured on 6 June and after the third day of fighting the Sinai Penin-
sula up to the Suez Canal and the Gaza Strip were in Israeli hands.
On the morning of 5 June Israel delivered through the Chief of
Staff of the UN Observer Corps, the Norwegian General Odd Bull,
an
a message from the Prime Minister of Israel Levi Eshkol to King
Hussein of Jordan. In it Israel made clear that it would not start
military operations against Jordan unless Jordan attacked. Jordan did
not take heed and opened artillery fire along the armistice line and
especially on Jerusalem. Tel Aviv and its suburbs were also bom-
barded at the same time. Jordanian forces crossed the armistice line
and captured the UN Observers Corps HQ in Jerusalem. Israel had
to react and its forces, with reinforcements rushed quickly into the
area, entered the area of the western bank of the Jordan river,
which was in Jordanian hands since its conquest in 1948 by the
Transjordanian Army (and which had since then been termed the
“West Bank”). The part of Jerusalem occupied by Jordan since 15
May ,1948 including the Old City and its Jewish Quarter, passed
into Israeli hands on 7 June. The take-over of the West Bank was
completed after the final rout of the Jordanian armoured forces, with
the occupation of Hebron and its vicinity on 8 June.
During all this time Syrian artillery was shelling Israeli border vil-
lages and Syrian land forces attempted to capture Kibbutz Dan. Syria
refused to accept the cease-fire, called for on 8 June by the UN

“The facts of the June, ,1967 Six Days War demonstrate that Israel reacted
defensively against the threat and use of force against her by her Arab neighbors.
This is indicated by the fact that Israel responded to Egypt’s prior closure of the
Straits of Tiran, its proclamation of a blockade of the Israeli port of Eilath, and
the manifest threat of the UAR’s use of force inherent in its massing of troops
in Sinai, coupled with its ejection of UNEF. It is indicated by the fact that, upon
|Israeli responsive action against the UAR, Jordan initiated hostilities against
Israel. It is suggested as well by the fact, despite the most intense efforts by the
Arab states and their supporters, led by the Premier of the Soviet Union, to
gain condemnation of Israel as an aggressor by the hospitable organs of the
United Nations, those efforts were decisively defeated. The conclusion to which
these facts lead is that the Israeli conquest of Arab and Arab-held territory was
defensive rather than aggressive conquest”.
 2 M. SHAMGAR

Secretary General, apparently relying on the tactical advantage which

her fortifications on the crest and slopes of the Golan Heights gave her.
‘Twenty hours of intensive uphill fighting ended in the capture by
Israeli forces of the Golan Heights up to and including Quneitra,
whereupon the cease-fire came into effect on 10 June also on the
Syrian front.
In the course of six days, Israel had repelled the military
forces of three of its neighbours, which had been supported by a
number of other Arab countries. Over 700 Israelis were killed and
2500 wounded. 11500 Egyptians were killed and 5600 were taken
prisoners; Jordan lost about 6000 (according to a statement by King
Hussein); Syria suffered about 1000 casualties.
The war left Israel in control of the Sinai Peninsula, the West
Bank (part of the area of the British Mandate of Palestine that was
conquered by the Transjordanian Army in 1948 and annexed by Jor-
dan in ,)1950 the Gaza Strip (another part of Mandatory Palestine
conquered by the Egyptian Army in 1948 and administered by it
since as a Military Government Area'’) and the Golan Heights (part
of Syria according to the Anglo-French Settlement following World
War I).18 The total population of these areas was about one million.
In the political struggle which followed, the Arab states set as a pre-
condition for any settlement the complete evacuation of all the oc-
cupied territory. Israel, determined not to return to the strategic and
tactical situation of a constant threat of war, insisted that it would
withdraw only to secure and recognized borders to be established
through a mutually agreed peace settlement.'®

C. THE BASIC ADMINISTRATIVE FRAMEWORK

Israeli Army GHOQ established four separate regional entities of

military government namely for the Gaza Strip and Northern Sinai,
Central and Southern Sinai, Judea and Samaria and the Golan
Heights. Whilst separate administration of the former Syrian Golan
Heights and the former British Mandatory areas of Judea and Samaria?°

was self-explanatory and corresponded with the former Jordanian and

17 See chapter II below.

18 See chapter III below.
19 See E.V. Rostow, “The Illegality of the Arab Attack on Israel of October ,6
,”1973 )1973( 69 AJIL, pp. ,272 .276
 4 M. SHAMGAR

mand of the IDF ,nrehtroN( Central or Southern Command, as the

case might be) which continued to be responsible for the overall

defence of the area and the deployment of troops. In relation to
military government proper he was subordinated to the GHO Co-
ordinator for the Territories who not only headed the GHQ Depart-
ment for Military Government (as part of the General Staff Branch
of the GHQ) but at the same time also acted as a functionary of the
Ministry of Defence, heading a special co-ordinating unit established
to this end, and receiving his instructions and directives in most cases
directly from the Minister of Defence.
Specially trained military government units of the Military Ad-
vocate General’s Corps, composed mostly of reserve officers, were
attached to all military government Regional HQ’s and initially even to
all military government districts and sub-districts. Moreover, in order to
ensure that the activity of the Israel military in every territory con-
formed to the norms of international law, and specifically the rules
of land warfare, such units had been placed at the disposal of com-
manders of the forces mobilized and deployed in the South, opposite
the Egyptian armies, even before military operations
After the Jordanian army started its attack on Israel on 5 June and
the Israeli counter-attack began, the Military Advocate’s unit destined
for Judea and Samaria was mobilized according to planned order
and it entered East Jerusalem on 7 June along with the Military
Government HQ. The units destined for service in Samaria (J enin,
Nablus and Tubas) entered that area with the brigades advancing
into the northern part of the West Bank. On 7 June, the date of the
establishment of the Military Government in the West Bank, the
proclamation prepared by the Military Advocate’s unit on the entry
of the IDF into the region and its assumption of responsibility for

formations (except operationally to the Territorial Command). Another inter-

mediary and temporary stage of government of the sub-districts worthy of
mention was government by the commanders of the military brigades who had
conquered the region and whose forces continued to be deployed there tempora-
rily. This was, for instance, the way military government was established initially,
in Ramallah, Nablus, Tubas and Hebron. These brigade commanders were soon
released frnm their military government duties and special military government
district commanders were appointed.
23 Some of the officers of these units in the south actually arrived at their destination
while the fighting had not yet subsided and were involved in it.
 LEGAL CONCEPTS 25

the maintenance of public order was posted in the towns and villages
which had passed into the hands of the IDF.*4
The Military Advocate’s unit destined to serve in the area ad-
ministered by the IDF was organized in three platoons,?> one for ser-
vice in the south, the second in the west and the third in the north.
The officer heading the platoon acted as Legal Adviser to the military
Commander of the Region but he and his unit remained under direct
command of the Military Advocate professionally, oper-
ationally and logistically. Each platoon consisted of one section for
service at Military Government Headquarters and additional sections

were destined for service in the subdivisions .)stcirtsid( Each section

was commanded by an officer serving as legal adviser to the district
commander and comprised two additional officers, to act as judges
of the military court, and two military prosecutors. Both the judges
and prosecutors were lawyers in regular or reserve service. The sections
of the platoon included as well soldiers of other ranks to carry out
administrative staff duties ,srotalsnart( registrars, fine-collectors, sec-
retaries, etc.).?7
The commander of the platoon for the Gaza Strip and Northern

24 Proclamation No. .1 See )1968( 8 Public Administration in Israel .42

25 See Appendix to this article. Training material included, inter alia, the Israeli
Manual for the Military Advocate in Military Government and the following
pamphlets issued by the M.A.G.’s H.Q. in co-ordination with the Training Depart-
ment of the GHQ: CHZ/2-17, Laws of War and CHZ/28-17 Powers of Army
in Occupied Territories.
26 Similar to the status of the Military Advocate in the IDF Territorial Commands.
27 Before the war the officers of the platoon (regular and reserve) had taken special
courses of the Military Advocate’s Corps, studying in detail the laws of war
and had carried out skeleton exercises in military government problems. All
sections were equipped with movable emergency kits including basic legal
textbooks and other material necessary for the performance of their duties,
and inter alia a large set of precedents of military government proclamations and
orders, vital at the initial stages of military government, as well as detailed legal
and organisational instructions and guide-lines. These facilitated, from the outset,
the legal and administrative activity of the sections, according to a previously
planned scheme. The instructions and guide-lines took the form of a compre-
hensive vade-mecum, the “Manual for the Military Advocate in Military Govern-
ment”, written and published in the early sixties by the present writer, when
serving as the Military Advocate General and re-edited and enlarged by him as
a result of the continuous training in the Military Government courses of the
Military Advocate Units’ courses, systematic legal research and staff deliberations.
 6 M. SHAMGAR

Sinai was stationed with the Military Government Area Headquarters

in the town of Gaza and the sections were stationed at the initial
stages of military government in the districts of Gaza, Khan Yunis,
Rafiah and El-Arish. Military courts were established in each of these
localities, and manned by officers of the section as described above.
After the initial stage legal advice was generally extended only from
the central office of the legal adviser situated at Military Government
HQ of the Region in the town of Gaza. The military court was also
situated in this town and only seldom held sessions in other localities.
Legal advice for the Area of Southern Sinai was extended directly by
the Military Advocate General’s Office.
The Legal Adviser of Judea and Samaria commanding the second
platoon was stationed with Military Government Area HO in Jeru-
salem whilst the sections and their military courts functioned at first
in Jerusalem, Nablus ,)mehkehS( Tubas, Ramallah, Jericho and Heb-

ron, alongside the district commanders. After 28 June 1967 on reuni-

fication of East and West Jerusalem (which had been divided as a
result of the 1948 war, from 1948 till )1967 the military government
district of Jerusalem ceased to exist. Military Government HO was
transferred in the course of events to Beth-El, near Ramallah.
During a short intermediate period two deputy legal advisers func-
tioned temporarily in the districts of Samaria and Judea respectively
until legal advice was finally concentrated at Military Government Area
HQ. On the other hand, two military courts continued to function in
the region, one for Samaria in Nablus or Ramallah, as occasion de-
manded, and the other for Judea, in Bethlehem or Hebron.
After military government became finally settled and well-organised
and the relative urgency and scope of legal problems in the districts
decreased markedly, the platoons demobilised the majority of the
reserve officers, and these continued to be called up for defined periods
of service (on a monthly or fixed days basis).
The two platoons did not undergo any basic structural changes and
the metamorphosis from war-time footing to activity under the cease-
fire regime found its expression in the comparative magnitude of the

reserve components of the platoons.

The third military government platoon of the Military Advocate’s
Corps was mobilised on 9 June for service on the Golan Heights, and
its centre was in Quneitra. Its internal organization was naturally
identical with the two others.
 LEGAL CONCEPTS 27

D. THE LEGAL GUIDELINES

The Manual for the Military Advocate in Military Government

covered a wide range of practical and theoretical subjects? but in the
present context the matters worthy of note are the basic approaches
and concepts which found their expression in this vade-mecum.
The guidelines of the Manual were based upon the norms of inter-
national law and more specifically on the laws of war with which
belligerents and neutrals are bound to comply. Although the Manual
included inter alia a concise resumé of the municipal law in force in
the different enemy countries neighbouring Israel, it did not refer
specifically to the modalities of applying the above-mentioned norms
to any given territory because, as already mentioned before, it was
prepared a long time before hostilities began and without contemplat-
ing war in any specified theatre.
Military government was defined as the form of government estab-

preface of the Manual stated:

“The officer of the Military Advocate’s Corps who has been posted to fulfill
the duties of a legal adviser, a military judge or a military prosecutor in areas
under military government in time of military occupation, is called upon to act
in spheres in which he could have acquired comparatively little practical ex-
perience. Study and training in peace-time has reference not only to the theore-
tical aspects of the relevant legal fields but also to the pertinent practical aspects;
but training and exercise cannot reflect precisely either the reality of an admin-
istered area or the specific circumstances of time and place. This Manual is an
aid to facilitate the process of adaptation of the military advocate to this new
and unusual field. We do not include here a detailed presentation of the laws
of war, including those relating to occupied territories; for this purpose the ad-
vocate will have at his disposal text books and pamphlets according to his
needs, partly in the emergency kit which he will carry with him to his place of
service and partly in the central library of the unit.... The military advocate
should not be made to look for solutions or be forced to improvise rules in
legal and administrative matters, if the proper solutions and rules can be set
out in detail beforehand in this Manual.... The main obvious limitation which
this Manual is unable to remove is inherent in the fact that it was prepared
before the development of the actual circumstances in which it will have to be
applied in practice. Not all problems and their solutions could be foreseen. ...
Finally it would be proper to underline again the exceptional importance of the
task which the military lawyer will fulfil within the framework of military
government, a task in which the special function and the essential significance
of the military advocate’s unit will find its most real expression: The fulfill
ment of the two main missions of the unit—the enforcement of the Rule of
Law in the Army and the assistance to the various military elements in the
accomplishment of their
 8 M. SHAMGAR

lished by a country which has occupied enemy territory, whether the

territory was formerly under the sovereignty of such enemy or whether
it could be regarded as former sovereign territory of the occupying

power or any of its The need to establish this form of ad-

ministration is a direct result of the occupation of territory and the
inability of the former government to continue and exercise its duties.
Military occupation has the effect of suspending the exercise by the
former government of customary sovereign rights (or to continue
its military government if the area was on the eve of occupation
under military rule, as was the case in the Gaza Strip), except to the
extent that this exercise is permitted by the belligerent in power. The
latter’s orders and decrees are supreme during the period of military

The belligerent does not acquire sovereignty over the territory by

the mere fact of military occupation*! but he acquires the right to exer-
cise military authority over it®* and his authority is exclusive. Admi-
nistration is distinctly military, and this even when civilian adminis-
trators are employed in certain The rights of the military
government are not unrestricted. Notwithstanding that occupation is
a legitimate aim of warfare and its main purpose the achievement of
the purposes of the war and the security of the occupying army, the
rights of the belligerent administrator are not absolute. Restrictions
and limitations have been imposed by customary international law
and international conventions codifying customary international law,
which are binding on Israel even if she has not formally adhered to
these.** Once military administration has assumed authority over ter-
ritory it becomes its clear duty to ensure as far as possible public order
and safety and restore the life of the population to normal.*5
One of the main limitations on the authority of the military adminis-
trator relates to the power of legislation. In his endeavours to secure
order and ensure the safety both of the local population and of the

Man., p. ;6 BMML par. 499 note .3

.s307 Man., p. ;6 Oppenheim, vol. II, par. ,169 p. .437
31 Ottoman Debt Arbitration, in Annual Digest ,19251926 No. .360
32 Société des Quais de Smyrna v. Greek Government, in Annual Digest ,192930 Case
No. ,291 Oppenheim, Vol. II, par. ,166 p. .434
33 BMML par. .518
Manual, p. .7
Manual, p. .7 Cf. Article 43 of The Hague Regulations.
 LEGAL CONCEPTS 29

army of the belligerent, he has to respect the laws in force in the coun-
try unless absolutely prevented from doing so. The Manual summed
up the powers of legislation as follows: 36

)1( The laws which were in force in the territory on the eve of
occupation remain in force, subject to the following provisos.
2( ) Military administration has the power to repeal or suspend
any law, if it is essential in order to maintain the existence of
military government.

)3( The penal laws of the territory should not be repealed or sus-
pended unless they constitute a threat to the security of mili-
tary government or an obstacle to the enforcement of Interna-
national Law as expressed in customs and conventions.

)4( It is the duty to respect the laws in force in the territory, whether
penal or civil, so long as the military administration is not pre-
vented from doing so because of circumstances which are be-
yond its control; for example if the local )nailivic( judges re-
fuse to administer law or if public safety has as yet not been
ensured and the need to impose a curfew or other restrictions

on the population arises, there will be no possibility to enable

the normal functioning of the local courts.

5( ~ The military government as such has the power to promulgate

legally binding orders if necessary for one of the following

purposes namely:
)a( to fulfill its obligations under International Law;
)b( to maintain the orderly government of the territory;
)c( to ensure the security of the belligerent power which has
taken over the government of the territory, the safety of
the members of its forces and their property and the
security of military government and the establishments
and lines of communication used by it. Such orders can
be legal innovations (for example special security provi-
sions or orders in relation to food control) or amend-
ments to existing
The Manual included detailed guidelines in relation to the forms
and modes of military legislation, including the duty to legislate only by

36 Is. Manual, pp. ,7 .17

37 Is. Manual, pp. ,17 .18
30 M. SHAMGAR

way of written and published documents, precisely and fully translated

into Arabic. It would be impractical to give a detailed survey of these
guidelines; presentation of some of them will suffice to exemplify
their general spirit and trend:

)1( Every enactment must be drawn up in Hebrew and Arabic,

and publication to the population in one of the ways outlined
below always effected in both these languages, strict attention
being paid to the need for clarity and accuracy of translation.
)2( An enactment does not come into force until published in writ-
ten form and in addition brought to the notice of the popula-
tion by publication in one or more of the following ways:
publication in a newspaper, posting on walls, oral proclamation
in public, transmission by radio or in any other effective man-

ner, effectivity being essential.

)3( The contents of enactments must not be inconsistent with the

norms of international law and special attention must be paid

to the norms of the Hague Regulations and the Fourth Geneva
Convention.
)4( Every kind of enactment ,noitamalcorP( Order, Notice) must

carry a consecutive number and be published in an official

series available to everyone at any time. The series will bear
the name “Collection of Proclamations, Orders and Notices of
the Military Government in...
)5( An enactment relating to basic legal provisions, e.g. the begin-
ning of the occupation, the statement declaring the laws in force
in the territory etc., is to be termed a general
and ordinary enactments ”sredrO“ and administrative notices
will be termed .”secitoN“ No other classification was to be
permitted.
)6( Every Proclamation and Order was to comprise the following
parts:

)1( Heading (Israel Defense Forces).

)2( Sub-title (namely a concise description of the subject
matter, e.g. Proclamation Concerning Law and Adminis-
tration).
)3( Serial Number .g.e( Proclamation No. .)1
)4( The contents of the enactment.
)5( Date of entry into force.
 LEGAL CONCEPTS 31

)6( The full name of the enactment .g.e( Order Concerning

Government Property .oN( )56 (Judea and Samaria),
.)1967
)7( Date of publication.
)8( Name, title and signature of the legislating authority, re-
ferring to the status according him the power to legislate
.g.e( A.B., General, Military Commander of the Region).

No retrospective legislation was permitted. The courts would en-

ak force only the penal enactments in force at the date on which the
offence was committed.
The Manual included the full text of the vital initial enactments, in
Hebrew and Arabic .g.e( Proclamations concerning the Commence-
ment of Occupation, concerning Law and Order and concerning the
Entry into Force of the Security Code; furthermore, different Orders
relating to security provisions, essential services, jurisdiction in
relation to ordinary criminal offences
The legal and administrative provisions as to the establishment of
military courts conformed precisely with the rules adopted in the
Fourth General Convention. A detailed Security Code*® the main
provisions of which are described elsewhere in this volume was also
prepared beforehand. The code was promulgated immediately at the
beginning of military administration and was drawn up according to
the identical approach, namely the meticulous de facto adoption of all
rules and concepts expressed in Articles 6478 of the Fourth General
Convention.

FE. THE FOURTH GENEVA CONVENTION

The military occupation of enemy territory initiates a special rela-

tionship defined by international law, between the occupant, the ter-
ritory and its inhabitants, creating rights, duties, restraints, obligations
and powers which find expression, mainly,“ in the rules on the
occupation of enemy territory and military government included in

38 Js. Manual, pp. .1824

39 Proclamation No. 3 and Order No. ;378 Coll. P. & O. .J( & S.), p. .733
Hague Regulations do not purport to provide a complete code and cases
beyond its scope therefore still remain subject to customary rules and usages
(see the preamble to the Fourth Hague Convention, including the famous -raM“
tens Clause”); BMML, par. ,5 p. .3
 22 M. SHAMGAR

Articles 4256 of The Hague Regulations“ in the Fourth Geneva

Convention,” especially Articles ,4778 (including both conventional
and customary international law) and in those norms of customary
international law not yet
From the very outset of military government, Israel and the Interna-
tional Commission of the Red Cross arrived at diametrically opposed
conclusions concerning the formal applicability of the Fourth Geneva
Convention to the regions here under consideration. This difference
of views was mainly and primarily of a legal and theoretical nature,
because Israeli Governmental authorities stated several times that
Israel has decided to distinguish a priori between the formal legal
conclusions arising from its approach and the actual observance of
the humanitarian provisions of the Convention.
The essence of the divergence was, in a nutshell, as follows: The
ICRC took the position that the Fourth Convention applies to every
occupation of territory, whatever the legal status in the said territory
of the ousted military forces. Israel’s position, on the other hand, was
that as a signatory of the Fourth Convention it was generally bound
by the Convention; but in relation to every Convention, as in relation
to every municipal law, a second question always arises as a corollary,
namely whether the Convention or law, as the case may be, actually ap-
plies to the specific set of circumstances under consideration. In order
to decide this issue one has to refer to the provisions relating to the
application of the Convention or law and especially if these are an
integral and explicit part of it.

rules laid down in these Regulations were, in 1939 and even before, re-
cognised by all civilised nations and regarded as being declaratory of the laws
and customs of war. See Judgment of the International Military Tribunals, No-
vember ,1946 Cmd. ,6964 p. 65 and 15 W.C.R. p. 13 .T.M.I( )oykoT( Judgment).
2# Part of the provisions of this Convention cannot as yet be regarded as expressing
norms of customary international law: Saliman Tawfik Ayoub v. Minister of
Defence )1979( 33 P.D. )2( .113
Incidentally, The Geneva Conventions were ratified by the United Kingdom on 23
September 1957 in consequence of the Geneva Conventions Act, ;1957 quaere whether
until the date which is subsequent to the Suez Campaign of October 1956 the United
Kingdom regarded all the norms defined in the Convention as already binding on it.
43 BMML, par. ,499 p. .140 But see note 42 above.
44 Intern. Conference on Human Rights, Teheran ,1968 Resolution XXIII on Human
Rights in Armed Conflict; Protocol Additional to the Geneva Conventions of
August 1949 and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), Geneva, July .1977
 LEGAL CONCEPTS 33

In other words, the difference of views did not extend to the ques-
tion whether a party signatory to the Convention is obliged to fulfill
its commitments, a question which may generally be regarded retho-
rical and superfluous but to the more limited question whether the
actual words and context of the Convention involve its applicability
to each and every factual situation of military occupation or only to
the occupation of territory which was under the sovereignty of another
High Contracting Party prior to its occupation. The applicability pre-

supposes the existence of a factual situation which corresponds to the

one defined in the Convention. One has to distinguish therefore, in
summary, between the binding power of a Convention as such, on
the one hand, and its applicability to the factual situation under con-
sideration, on the other.
The nature of this disagreement and of its legal background merit
due analysis and consideration because the non-admission of the
applicability of the Fourth Convention expressed one of the funda-
mental standpoints of the Israeli authorities and gave birth to many
and manifold expressions of criticism and censure of Israel, although
part of them merely echoed to a large extent apprehension of
the political inferences and repercussions latent in the legal attitude
of Israel and were aimed only to a minor extent against the practical
phenomena involved.
Within the dualistic framework of the legal data and the political
data—two separate elements which are too often tangential and even
overlap—there is conspicuous interaction which directly influences the
fashioning and interpretation of rules of international law. It fosters
subjective outlooks and at times contributes to the still existing lack
of unanimity and clarity which is one of the characteristics of some
of the rules we are dealing with. In relation to the factual data, actual
and apparent, persuasive answers are most difficult to arrive at be-

Cause international society lacks impartial fact-finding procedures; in

relation to the legal problems, there is far too often little prospect of
reaching an authoritative interpretation of the international legal status

or of the relative legal rights and duties of the parties concerned.*®

Israel was of the opinion that because of its wording, especially of
Article ,2 the automatic applicability of the Convention to the ter-

45 Cf. The Vietnam War and International Law, ed. Richard A. Falk, American
Society of International Law, Vol. I, pid.
4 M. SHAMGAR

ritories administered by Israel was extremely doubtful. Moreover, it

was apprehensive lest recognition of applicability would lead to the

conclusion that the former administration in Judea and Samaria and
Gaza had had sovereign rights in these territories. In other words, the
divergence of approaches described above did not turn on theoretical
legal problems but much more on their political repercussions. Thus,
by according to the Gaza Strip the status of a territory of a rival High
Contracting Party, Israel’s act could have been interpreted as recog-
nition of the status of sovereignty of Egypt over this territory, a re-
cognition which had never been granted by any State whatsoever be-
fore ,1967 which had so far never been claimed by Egypt and which
lacked any legal or factual basis whatsoever.
The legal status of the Gaza Strip and of Judea and Samaria has
been described as sui generis.
All of these territories, together with the areas which now include
Israel and which until the Proclamation of Transjordan independence

on 15 May 1923 and the concurrent announcement of recognition by

the British High Commissioner for Palestine comprised formally even

a large area east of the Jordan river, presently the Kingdom of Jordan,
were parts of the League of Nations Mandate for Palestine. Complete
independence of Transjordan (later the Hashemite Kingdom of Jor-
dan) was formally recognized by the treaty with Britain signed on
22 March .1946 Restrictions on Jewish rights in Transjordan were
imposed by the British as early as 19224
In 1948 when Israel was established in consequence of the U.N.
Resolution of 29 November ,1947 and in accordance with it, Egypt
and Transjordan together with other Arab States invaded the area of
the former Mandate with the declared intention of preventing the
creation of this State. Egyptian troops advanced up to Ramat Rahel,
just south of Jerusalem, and on the Mediterranean shore up to Ashdod,
approximately 30 miles south of Tel Aviv, until repelled by the Israeli
Army and forced out from most of the territories occupied by them.
When a cease-fire and later on an armistice was agreed upon, the
delineation of the front line, along which the fighting had frozen,
created in the south the so-called Gaza Strip which is practically and

458 Memorandum relating to Article 25 of the Palestine Mandate presented by the

British Government to the Council of the League of Nations on 16 September 1922
and approved by the Council on 23 September .1922
 LEGAL CONCEPTS 35

legally not more than the demarcation by the armistice agreement of

the territory of Palestine which remained under Egyptian military
occupation in consequence of the military invasion which started on
May 15th .1948 The area carrying since 1948 the descriptive name
“the West Bank” is that part of the territory of Palestine which re-
mained under Transjordanian military occupation after the invasion
of 1948 and the resulting fighting, in the course of which the Trans--
jordan Army conquered the Old City of Jerusalem and parts of the
New City. This area remained under Jordanian military government
from 1948 till .1950 On 4 April 1950 the West Bank was annexed by
Jordan in consequence of the creation in April 1949 of the Hashemite
Kingdom of Jordan.
The Armistice Agreements signed in 1949 between Egypt and
Israel explicitly stated (Article V(2)) that the Armistice Demarcation
Line was not to be construed in any sense as a political or territorial
boundary and was delineated without prejudice to the rights, claims
or position of either party. The Armistice Agreement with the Hashe-
mite Kingdom of Jordan adopted—in Article 6(9)—a similar wording.
From 1948 till the Sinai campaign, which started on 29 October
,1956 and again from March 1957 till June 1967 the Gaza Strip was,
under Egyptian military occupation and was ruled by an Egyptian
military governor, without any pretence or intent of cession, an-
nexation or incorporation into Egypt in any way whatsoever. On the
contrary, the inhabitants of the Gaza Strip were not accorded Egyptian
citizenship and those who before 1948 were Palestinian citizens re-
mained such. All needed special permits to enter Egypt, military courts
were set up, and curfew was declared according to the British Defence
)ycnegremE( Regulations, ,1945 which were part of the law of the
Mandate. Moreover, all the laws in force at the termination of the
Mandate on 15 May 1948 remained in force and only minor legislative
changes were effected by orders of the Military Governor. In short,
no general claim was raised by Egypt that the Gaza Strip was anything
but territory occupied in consequence of the war of .1948
It was therefore deduced by several authors that if due regard
is given to the pertinent data on the initiation of the war of 1948
and its aims and to the criteria to be applied in such circumstances
according to Article 51 of the United Nations Charter, any com-
parison, based on the proper legal frame of reference, of the status
till 1967 of Egypt in the Gaza Strip and of Jordan in the West Bank,
36 M. SHAMGAR

with that of the incumbent state since that date, necessarily reflects
the relative inferiority of the legal standing of Egypt or Jordan res-
pectively.“ Further, even without being ready to pass judgement on
the comparative standing of each of the parties concerned which have
administered the Gaza Strip and the West Bank consecutively since
,1948 non-Israeli legal circles have conceded that the legal status of
the Gaza Strip and of Judea and Samaria is at least unique and
exceptional.

46 Haetzni v. Minister of Defence )1980( 34 P.D. )3( ,595 .598 See Julius Stone, No
Peace-No War in the Middle East ,yendyS( Maitland Publications, )1969 p. 39
who makes the following remarks:
“Further learned work since The Middle East Under Cease-Fire has docu-
mented a number of other propositions related to Jordan’s status as merely

a military occupant after the seizure in .1948 First, at the time of the Arab
States’ attack on Israel in ,1948 the West Bank could not be regarded as

res nullius open to acquisitive occupation. Second, the entry of Transjordan

onto the West Bank was described in the Security Council as an ‘unlawful
invasion’ (Ukrainian delegate Taresenko, S.C.O.R. 30th Meeting, 27 May
,1948 p. )7 and an ’noissergga‘ .S.U( delegate Austin, S.C.O.R. 302nd Meeting,
May ,22 ,1948 pp. ,)4142 for which the pretexts offered were shifting and
legally insufficient. Third, even the other Arab States denied the permissibility
of Jordan’s abortive annexation. Fourth, this annexation was, in any case,
invalid as against the ’gnizeerf‘ provisions of the Armistice Agreement. -roJ(
dan’s delegate El Farra himself declared in the Security Council immediately
before the June war: ‘I know of no boundary; I know of a situation frozen
by an Armistice Agreement’ .N.U( Doc S/PV ,1345 31 May ,1967 p. ).)47
Fifth, the principle ex iniuria non oritur ius and related rules as to unlawful
resort to war beclouded even Jordan’s limited status of Military Occupant”.
Cf. Y.Z. Blum, “The Missing Reversioner: Reflections on the Status of Judea
and Samaria”, )1968( 3 Is.L.R. .279
Stephen M. Schwebel remarked in )1970( 64 AJIL at p. :346
“The facts of the 1948 hostilities between the Arab invaders of Palestine and
the nascent state of Israel further demonstrate that Egypt’s seizure of the
Gaza Strip, and Jordan’s seizure and subsequent annexation of the West Bank
and the Old City of Jerusalem, were unlawful. Israel was proclaimed to be

an independent state within the boundaries allotted to her by the General

Assembly’s resolution. But that rejection was no warrant for the invasion by
those Arab states of Palestine, whether of territory allotted to Israel, to the
projected, stillborn Arab state or to the projected, internationalized city of
Jerusalem. It was not warrant for attack by the armed forces of neighbouring
Arab states upon the Jews of Palestine, whether they resided within or without
Israel. But that attack did justify Israeli defensive measures, both within and,

as necessary, without the boundaries allotted her by the partition plan (as
in the new city of Jerusalem). It followed that the Egyptian occupation of
Gaza, and the Jordanian annexation of the West Bank and Jerusalem, could
not vest in Egypt and Jordan lawful, indefinite control, whether as occupying
Power or sovereign: ex injuria jus nor oritur’.
 LEGAL CONCEPTS 37

As mentioned before, Israel was naturally apprehensive lest the

automatic application of the Fourth Convention would create unin-
tentionally a change in the political status quo by according to Egypt
and Jordan which had occupied the Gaza Strip and the West Bank
Tespectively in consequence of the invasion of ,1948 the standing of
an ousted sovereign whose reversionary rights have to be respected
and safeguarded.*’ Since the whole idea of the restriction of powers
of military government by the Convention is based on the assumption
that there is a sovereign who was ousted and that he has been a legi-
timate sovereign, the automatic and unqualified application of the Con-
vention could have enhanced the legal rights of Egypt and Jordan, and
this, paradoxically, from the date of the termination of their military
government.
The Convention had so far been applied sparsely, if at all, although
numerous armed conflicts since 1949 and any continued military oc-
cupation which started before that year, would have required its
application, or at least the voicing of a formal demand for its ap-
plication if it had to be applied automatically in every armed con-
flict, whatever the relative status of the belligerent parties.
The interpretation of the Fourth Convention warranted therefore
closer consideration. The provisions defining the extent of the ap-
plication of the Fourth Convention are included, as mentioned above,
in Article ,2 common to all Conventions, as follows:

“Article 2—Application of the Convention.

In addition to the provisions which shall be implemented in peace-
time, the present Convention shall apply to all cases of declared
war or of any other armed conflict which may arise between two
or more of the High Contracting Parties, even if the state of war
is not recognized by one of them.
The Convention shall also apply to all cases of partial or total
occupation of the territory of a High Contracting Party, even if
the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to
the present Convention, the Powers who are parties thereto shall
remain bound by it in their mutual relations. They shall further-

47 McNair, The Legal Effect of War (4th ed. )1966 p. ;368 Stone, Legal Controls
of International Conflict )1959( p. ;720 Blum, op. cit. .289
8 M. SHAMGAR

more be bound by the Convention in relation to the said Power,

if the latter accepts and applies the provisions thereof”.

The Article apparently refers to three alternative situations: )a(

Peacetime; )b( Cases of armed conflict; )c( Cases of occupation. The
first question is whether the first and second paragraphs of Article 2
are concurrent and complementary or disjunctive, namely, whether
the first paragraph lays down the lex generalis in relation to the extent
of the application, which impliedly refers not only to all possible
forms of an armed conflict but also to all its secondary results and
developments and inter alia to military occupation, comprising ex
abundante cautela the one described expressis verbis in the second
paragraph; or whether, alternatively, there is no linkage between the
two paragraphs and each has to be read and interpreted separately and
independently, the first paragraph dealing with armed conflicts, except
military occupation, and only the second paragraph referring to the
occupation of territory.
If the paragraphs are independent and not of a cumulative effect,
and only the second paragraph defines the extent of the application
to occupied territory, the one and only conclusion arising is that the
Convention applies merely to the occupation of the territory of a
High Contracting Party and not generally to territories held under
military occupation. It seems, as a prima facie corollary, that not each
and every occupation of territory turns it into territory to which the
Convention applies.*
On the other hand, even if one prefers the first alternative, namely
that the Convention applies to every armed conflict and all its resulting
military developments including occupation, and if one attributes to
the second paragraph a merely complementary meaning, it seems that
this does not mean as yet that one can disregard the wording of the
second paragraph as to the kind of occupation referred to and infer
that the provisions of the Conveution, prescribing permisstive or pro-
hibitive norms of behaviour in relation to occupied territory, are not
subject to the basic definition rising from the text of the second para-
graph. There is a dichotomy in the provisions of the Convention; part

48 Quaere, what is the status of a territory, militarily occupied, in case of subjugation

of the adversary. The Allied occupying forces, after World War II, apparently
acted upon the assumption that in such situation even the Hague Regulations do
not apply. Oppenheim, Vol. II, p. ;602 BMML p. .143
 LEGAL CONCEPTS 39

of them .g.e( Article )35 deal with actions taken within a given

country (“in territory of a party to the conflict”) and another sub-

Stantial part deals with rules applying to “occupied but
this expression which recurs in the Convention is apt to be interpreted
according to the meaning to be attributed to it according to the word-
ing of Article ,2 namely: “Partial or total occupation of the territory
of a High Contracting Party” (emphasis added—M.S.).
The use of the word ”osla“ in the first clause of the second para-
graph apparently gave birth to the thesis that this whole paragraph has
been added to the first paragraph in supplementation, in order to add

a further dimension to the range of application. The explanation

adduced in the Commentary is that the second paragraph of Article 2
refers only to the specific set of circumstances, based on the experience
of the Second World War, which saw territories occupied without any
preceding hostilities, because the Government of the occupied country
considered that armed resistance was useless.*° According to the view
taken by the Israeli authorities the wording of the paragraph does not
Support this restrictive interpretation, whatever the primary intention
of those who drafted the text. On the contrary, the general context,
the syntax of the sentence and the use of the word ”neve“ in the last
clause of the second paragraph contradict the argument that the second
paragraph adds to the Article only the specific situation mentioned
in its last clause (starting with .)”neve“ Would the paragraph refer
only to the situation where occupation is not met with resistance, the
word ”neve“ would have been entirely superfluous. In other words,
the text adopted accords a more general meaning to the second para-
graph than the one connected with its final clause only, whatever the
meaning intended to be conferred on it by its draftsmen. The Com-
mentary states, to a certain extent apologetically, that the wording of
the paragraph is not very clear and the learned authors would have
preferred the text as adopted by the Government experts, which is
described by the Commentary as more

2# Some of them apply in both situations.

50 Commentary pp. ,21 .22
Report on the Work of the Conference of Gover ment Experts for the Study of
the Conventions for the Protection of War Victims, ,aveneG( ,)1947 p. ;8 the
experts recommended that the Convention should be applicable to any armed
conflict, whether the latter “is or is not recognized as a state of war by the parties
concerned” and also to “cases of occupation of territories in the absence of any
state of war”.
40 M. SHAMGAR

Moreover, even if one accepts the thesis that the second paragraph
refers only to the particular circumstances mentioned, namely when
the occupation has taken place without a declaration of war and with-
out hostilities, one cannot disregard the reference to “territory of a...
party”; there could be no feasible reason why the rules of application
in relation to territories, occupied without resistance, should refer only
to the territory of a party, whereas this restrictive definition should be
disregarded in the case of any other hostile military occupation, in
time of conflict, which has been resisted by the civil or military author-
ities in power in the territory occupied. In other words, according to
the interpretation negating the legal approach of the Israeli authorities,
the application of the provisions of Article 64 of the Fourth Conven-
tion freezing the legal status quo would depend in many cases entirely

on the fact whether the ousting of the forces which had been in power
prior to the occupation had been resisted or not. In case of military
resistance, the resisting Convention would apply even if the restrictions
of the forces in power had been aggressive forces who had formerly
occupied territory outside their domain and which had been ousted,
in the course of an armed conflict, by the former legitimate sovereign;
in case of no resistance—only territory of the party is protected by
the Convention. It seemed, that such criterion, based prima facie on
the persistence and consistency of the aggressor raised serious doubts
in relation to the reasonableness of the interpretation.
Nor did the often proposed reference to Article 4 of the Con-
vention aid in the effective solution of the problem. This pro-
vision defines the term “protected person” and refers, inter alia, to all

persons who find themselves in case of occupation in the hands of a

party to the conflict or occupying power of which they are not na-
tionals. But it could not be overlooked that the provisions of this Article
represent only a subsidiary definition of a specific term used in the
Convention and did not absolve the parties from dependence on the
limitations of the general and over-riding provision, which according to
its title and text exclusively defines the situations in which the Con-
vention as a whole has to be applied. The term ”noitapucco“ in
Article 4 has therefore to be read in accord with the provisions of
Article .2
The problem considered above has been mentioned several times
 LEGAL CONCEPTS 41

before the Supreme Court of Israel since but no decision was

deemed necessary by the Court since the Government always under-
lined its readiness to act in practice according to the humanitarian

norms of the Convention. The Court remarked therefore several times

that it saw no need to pass judgment on this controversy.”
Finally, mention should be made that the opinion according to
which formal application of the Convention could be interpreted as

a recognition of the legal status in the territory of the forces formerly

in power, was explicitly considered, at least impliedly, in the Geneva
Protocol of ,1977 which tried to allay doubts which rose from the
wording of Article 2 of the Fourth Convention.

Article 4 of this Protocol states:

“Article 4—Legal status of the Parties to the conflict.

The application of the Convention and of this Protocol, as well

as the conclusion of the agreements provided for therein, shall

not affect the legal status of the Parties to the conflict. Neither
the occupation of a territory nor the application of the Conven-
tions and this Protocol shall affect the legal status of the territory
in

Article )55 provides:

“In accordance with Article ,4 the designation and acceptance

of Protecting Powers for the purpose of applying the Conven-
tions and this Protocol shall not affect the legal status of the
Parties to the conflict or of any territory, including occupied

The Commentary to the Draft Protocol®> remarked, in relation to

Article :4

Jerusalem District Electricity Corp. Ltd v. Minister of Defence )1973( 27 P.D.

)I( ,124 .139
33 Helou v. Government of Israel )1973( 27 P.D. )2( ,177 ;179 Ayoub v. Minister
of Defence )1979( 33 P.D. )2( ;127 Dvikat v. Government of Israel )1980( 34
P.D. )1( .1 The one and only case in which a different approach was adopted
was the last before-cited (by Witkon J. on p. )29 where it was observed, apparently
as an obiter dictum that the Geneva Convention applies, but is not justiciable.
= Protocol Additional to the Geneva Conventions of 12 August 1949 and relating
‫כז‬ the Protection of Victims of International Armed Conflicts J),
Geneva .1977
SICRC, Draft Additional Protocols to the Geneva Convention August ,12 ,1949
— ,aveneG( October 197
42 M. SHAMGAR

“The object of this provision is to ensure better the fulfillment

of the humanitarian aims of the Conventions and Protocol. The
Parties to the conflict might fear, unjustifiably, that the applica-
tion of those instruments might bring in its wake political or
legal consequences affecting their reciprocal status; it is advisable
therefore to remove all doubts in this regard”.

It would only be realistic to assume that Articles 4 and )55 cited

above, were included in the Protocol in order to counteract interpret-
ations dubbed ,”elbaifitsujnu“ not only as a result of the position
taken by Israel, but because the doubts voiced by Israel were ap-
parently shared by other, albeit more taciturn elements.
In view of the lack of clarity in the wording of the Convention and
the doubts thereby raised, the Israeli authorities decided to prevent
any vacuum in legal norms and in the appropriate and effective pro-
tection of humanitarian rights. As stated: *

“Humanitarian law concerns itself essentially with human beings

in distress and victims of war, not States or their special interests.
As Max Huber said: ‘The fate of human beings is independent
of the legal character which belligerents wish to give to their
struggle’. It is, therefore, always important to seek ways and

means by which humanitarian relief can be extended to victims

of war without waiting for the international law to develop
further and without subjecting the fate of the civilians to the
political and legal reality. While political rights and the legal
interpretation of a given set of factual circumstances are of far-
reaching consequence for the fate of nations, and cannot be
excluded from consideration, any possible separation between
the decision on political issues and the pragmatic application of
humanitarian rules should be considered

Israel decided therefore to divorce her practical approach from the

formal legal questions and to act in accordance both with customary
international law and de facto with the humanitarian provisions of
the Convention and furthermore to subject the acts of its military

55 Shamgar, Js. YHR Vol. I, p. .263

 LEGAL CONCEPTS 43

government to judicial review by the Supreme Court of Israel sitting

as the High Court of

F. THE RULE OF LAW

The first and foremost aim of the Israel Military Government was
the restoration and maintenance of public order and safety. This aim

was to be achieved by a coordinated and continuing effort to lay down

clear and precise legal criteria and to act in deference to the norms
of international law and the guiding spirit of the principles of law
which pervade the Israeli system of law and bind Israeli officials,
military and civil, wherever they go or act. The entry of Israeli mi-
litary forces into the areas under consideration accorded to them the
right and duty to establish an orderly and just administration. This

was not regarded merely as an aim of warfare, or as a means for the

maintenance and safety of the military forces, but as the consequence
of their duty to be guided in every situation, including military ad-
ministration, by the rule of law. The unique political background and
the special ties and relationship between the Jewish nation and these
territories naturally accentuated this obligation.
The establishment of military government was the direct result of
the armed conflict and of the entry of Israeli armed forces into areas
in which the former governments, whatever their legal standing, were
prevented from exercising their authority. According to International
Law the exercise of the right of military administration over the ter-
ritory and its inhabitants had no time-limit, because it reflected a
factual situation and pending an alternative political or military so-
lution this system of government could, from the legal point of view,
continue indefinitely. Military government does not derogate from
the potential rights of either party but represents a minimum standard
imposed by the Law of Nations and is co-extensive in time and space

56 According to the instructions and guide-lines of the present writer when serving
as Military Advocate General and later as Attorney-General of Israel, the State
never raised the plea of a lack of locus standi of alien enemies who were inha-
bitants of territory not under Israeli sovereignty and applied to the Isracl courts
and especially to the High Court of Justice. It agreed expressly to jurisdiction
and stated in relation to the criteria to be applied by the Court that Israel applies
in fact the norms of international law in relation to the territories, (Aljamyal
Almassakhia Lalarachi Almakadssa v. Minister of Defence )1972( 26 P.D. )1(
,574 ;580 Jerusalem District Electricity Corp. Ltd. v. Minister of Defence )1973(
27 P.D. )1( ,124 .136
4 M. SHAMGAR

to the effective rule of the military. In other words it does not reflect
necessarily a lack of legal or other claim for a more permanent status
by the party whose forces rule the territory, but its continuation ex-
presses the needs and purposes of war or the prevention of war (as in
the Rhineland after World War I) and in many cases, in addition, the
intention not to exclude or prejudge any political solution or foreclose
any rights. Interpretation of the rights of military government usually
emphasizes the far-reaching powers of the military arm: occupation
is an aim of warfare and the maintenance and safety of the military
forces and the purpose of war is—as stated by Lauterpacht*’—in the
of its interests and must be promoted under all circum-
stances and conditions. The Israeli authorities were cognizant of ad-
ditional important aspects of the situation and made the utmost efforts
to introduce norms of fairness and liberalism in law and action, which
were to a large extent beyond any demands of International Law.
The explicit instructions of the Military Advocate General repeated-
ly admonished the Israeli legal authorities serving in the territories
not to be content with the minimum standards laid down by the rules
of warfare on land but to be alert in ensuring that in any situation
not foreseen or not provided for in the customary rules, the solutions
applied should accord with the consistent safeguarding of the rule of
law. To exemplify this approach one may describe the following minor
administrative decision. In accordance with the rules laid down in
Article 78 of the Fourth Convention the procedure of internment for
imperative reasons of security must include a right of appeal for the
parties concerned. Section )674 of the Security Provisions Order
published on 7 June 1967 (now Section 87 of the Consolidated Ver-
sion of this Order) provides that the internment should be reconsidered
at least every six months, whether or not the interned person has
appealed; the automatic appeal accords with the demands of Article
78 of the Convention but the Order provided also for the establish-
ment of a board of appeal, chaired by a judge whereas the Convention
requires only the establishment of a “competent body” and does not
refer to its composition. Incidentally, immediately after the entry
into force of the Order in June 1967 an announcement in Arabic
describing the procedures and ways of appeal was posted in every

57 Oppenheim, Vol. II, para. ,169 p. .437

 LEGAL CONCEPTS 45

cell so as to acquaint an internee of his rights in addition to the

notification to be included in the internment order. There is no such
administrative requirement in the Convention.
Another example of the adoption of criteria which are more ad-
vanced’ than those laid down by the Convention is the Order relating
to the power of local courts to inflict capital punishment, an Order
which will be mentioned again at a later stage, when dealing with the
legal system. Capital punishment for murder was the mandatory
punishment provided by local law in the Gaza Strip and in Judea and
Samaria and was in practice applied there till .1967 This sanction
could therefore have been left in force according to Article 43 of the
Hague Convention and Article 64 of the Fourth Convention. Israel
abolished capital punishment for murder in ;1954 and even before
that it was never imposed. The approach of the Israeli legal system
naturally influenced Military Government when confronted with the
practical need to take decisions on cases in which this punishment was
imposed by the local courts. The conclusion drawn was that the rules
of international law did not prohibit the liberalisation of punitive
measures and that the military authorities could rely for this purpose

on the permissive provisoes in the above mentioned articles, amend

local law and abolish capital punishment for murder in the territories.
A third illustration relates to the social rights of former public
officials of Jordan and Egypt. According to the norms of international
law the military authorities may dismiss all Government officials who
have not withdrawn with the retreating They may not be
compelled to continue their duties if they decline to do so, except
when military necessity for the carrying out of a certain function
arises. If they agree to continue to serve they are usually to be
enabled to do so but they may be prevented from acting in the name
of the former government which appointed them. Sir H. Lauterpacht re-
marks®® .that many writers assert that in case military government
leaves former officials in office it must pay their ordinary salaries but
that there is no customary or conventional rule in existence on this
point. Only in cases in which Article 48 of the Hague Convention
applies, is it bound to defray the expenses of the administration, and
these include of salaries. It is naturally in the army’s own

58 Oppenheim, Vol. II, para. ,171 P. ;445 see also note ,1

59 Ibid. BMML, par. .584
46 M. SHAMGAR

interest to pay such salaries. Israel made every effort to convince of-
ficials to continue to serve.® The salaries were paid by the Israeli
government and cost of living allowances were added. (Some of the
officials continued to receive in addition their former salary from the
Jordanian Government.) The problem not provided for in International
Law was the right to pensions for the period of service prior to the
establishment of Israeli military government. Although Military Gov-
ernment is not responsible in any way whatsoever for the debts of
the former the Israeli authorities decided to accord full
pension rights to those officials who retired according to local law
and to calculate their pensions on the basis of all their years of service,
including the period served under the former authorities.
As stated, the areas were not incorporated into Israel and were
ruled by military government pending a political solution; the norms
to be applied were therefore drawn from the rules of International Law.
This in itself did not formally and practically derogate from the ability
to introduce efficient judicial supervision of the military arm, a course
which was regarded from the beginning as an integral part and necessary
element of the rule of law. No unusual legal problems were created
because the availability of judicial review in relation to the acts or
omissions of the Israeli executive arm was never regarded as limited
to the national territorial boundaries. Another relevant factor worthy

60 The personal appeal in June 1967 of the present writer to the judges in the Gaza
Strip to continue to administer the law for the common good of the inhabitants
had immediate success. In Judea and Samaria, part of the judges and attorneys
went on strike but were not forced in any way whatsoever to return to work.
The number of Israeli officials in the territories was and is comparatively small
in ,1980 some 600 Israeli officials worked in Judea and Samaria as against 11500
Arab officials. Nineteen Israelis worked in the school system as compared with
10803 local Arab inhabitants, who were school principals, teachers and maintenance
workers. The Education Department was headed by local Arab inhabitants. Israel
intervened in the school system as permitted by international law to check textbooks
and exclude inflammatory anti-Israeli and anti-Jewish passages .fc( Greenspan p.
.)234 This was done with the approval of a committee of UNESCO which had
previously checked the Jordanian and Egyptian publications in use. Syllabi and
curricula remained unchanged. In Judea and Samaria, an examinations committee
elected by local representatives prepared the final examination papers which were
recognized by Jordan as equivalent to the Jordanian matriculation examination.
61 Cf. Oppenheim, Vol. I, par. ;84 Guggenheim, Lehrbuch des Volkerrechts, I, p. ;342
O’Connell, The Law of State Succession, p. .159
62 Memorandum of Military Advocate General HQ of 7 July 1968 .)33262318KH(
63 See chapter IV of this volume.
 LEGAL CONCEPTS 47

of mention in this connection is that the Israeli legal system has

adopted the so-called monistic doctrine on the relation between in-
ternational law and municipal and all such rules of customary in-
ternational law as are universally recognized® are as such part of the
law of the land.** Furthermore, the courts interpret a municipal statuto-

ry provision, in so far as the content does not necessitate any other

interpretation, as conforming with public international law.®’ This
attitude to international law creates a convenient and propitious legal
background for reviewing acts of military government.
The Court has reviewed the legality and validity of administrative
acts in the territories according to customary international law®* (which
in certain situations introduces local law, according to Article 43 of
the Hague Regulations) and in as far as the behaviour of Israeli
officials is concerned also according to the appropriate norms of ad-
ministrative law applying to the situation under consideration.
Within the framework of municipal law, the rules of customary
international law are regarded as incorporated therein but only in

so far as they are not inconsistent with rules enacted by statute or

finally declared by national courts or tribunals.*® In cases of conflict
of law in military government regions, the order of precedence is
different: such regions are governed according to the norms of inter-
national law which provide inter alia that local law there in force

64 Oppenheim, Vol. I, para. ,21 p. .36 Prof. Y. Dinstein, International Law and the
State, Schocken Publishing House and Tel Aviv University ,)1971( p. .143
65 Cf. Lord MacMillan in Compania Naviera Vascongedo v. S.S. Cristina [1938]
A.C. ,485 :497 “It is manifestly of the highest importance that the Courts of
this country before they give the force of law within this realm to any doctrine
of international law should be satisfied that it has the hallmark of general assent
and reciprocity”.
66 Landau, D.P. stated in Dvikat v. Government of Israel )1980( 34 P.D. )1( :1
“Customary international law is in any case part of Israeli law, in so far as it
does not contradict local statutory law’. Witkon, J. stated in the same case:
“There is a distinction between customary international law and international
treaty law. The first is part of municipal law whereas the second is not part of it,
except if adopted by national legislation. Customary international law comprises
the rules included in the Hague Convention and in consequence it is possible to
examine the legality of the seizure according to Article 52 of the Hague
Cf. also Eichmann vy. A.G. )1962( 6 P.D. ;2033 Helou v. Government of Israel
,evoba( n. )53 ;177 Ayoub v. Minister of Defence )1979( 33 P.D. )2( .129
67 Amsterdam v. Minister of Finance )1952( 6 P.D. ,945 ;966 Stampfer v. A.G.
)1956( 10 P.D. ,5 ;17 Helou v. Government of Israel, .177
68 Dvikat v. Government of Israel, ibid.
69 Chung Chi Cheung v. The King [1939] A.C. ,160 .168
48 ‫זא‬. SHAMGAR

continue as a rule to be valid; alteration of the existing law, its sus-

pension or repeal or the promulgation of new laws are examined ac-
cording to the restrictions prescribed in Article 43 of the Hague Re-
gulations and Article 64 of the Fourth Convention and are permitted
when the exigencies of war, the maintenance of public order and the
safety or the welfare of the population so require. Legislative changes
have been examined by the Israeli courts according to these
The expression “Rule of Law” refers not only to the vigilant en-
forcement of the defined norms of a given legal system or, to the
formal legality of an act. It comprises the even more important com-
ponent of respect for law and the confidence and reliance of every
individual that justice will be done,” a result that can be arrived at
only by the overall application of norms of justice and fairness, by
the prevention of discrimination, by the certainty of access to courts
and other law enforcement agencies and by the introduction of proper
supervisory procedures which serve as avenues for the voicing of
grievances in individual cases.
To recapitulate the above mentioned concepts in summary form:
From the normative point of view the rule of law in the territories
found its expression in the adoption of two main principles of action:

)1( the prevention of the development of a legal vacuum by the

de facto observance of customary international law and the
humanitarian rules included in the Hague Rules and the Fourth
Convention and furthermore;

% Aljamyah Almasakhia Lalarachi Almakadssa v. Minister of Defence (above n. )56

;584 L. v. N. Annual Digest, ,1947 No. ,110 .243
Al-Talya v. Minister of Defence )1979( 33 P.D. )3( 505 the Supreme Court
examined the rules of international law relating to control of the press in oc-
cupied territories and concluded that Israel Military Government had not applied
restrictions to the full extent permitted by international law (as adopted for example
by the U.S. Army (Army Field Manual; The Law of Land Warfare (July )1956
par. )377 but had limited itself willingly only to the steps which were regarded
absolutely vital in order to ensure security and public order. In other words the |
powers extended by law were used sparingly and carefully. pe
In El-Assad v. Minister of Interior )1980( 34 P.D. )1( 505 the Supreme: Court
decided that the refusal of the District Commission of to issué a licence
to an applicant intending to publish journal. was because’ the
adduced by the relatéd alleged activity of -
the petitioner against the securityof éht‘ State—were not by sufficient
detailed evidence brought before the Commissioner prior to. his
which the Gourt had been asked .to > ae
. .

‫אב‬

55
‫ל‬ 4
. . 4

1
 LEGAL CONCEPTS 49

)2( the supplementation of the above-mentioned rules and provi-

sions by the basic principles of natural justice as derived from
the system of law existing in Israel, reflecting similar principles
developed in Western democracies.

In view of the continuous and permanent hostile and terrorist acti-

vities in the territories and in Israel the military government had to
pay due regard to the needs of security and of the efficient prevention
of terrorist acts. Activities in this sphere had to be subjected to the
limits and restraints laid down by the rules of warfare on land.
From the practical point of view the achievement of the above
mentioned goals demanded precise legal definitions and especially
the promulgation of decrees and orders describing the rights and
prescribing limits and restrictions. Furthermore, a clear division of

power between the law in force at the date of the entry of the Israeli
forces and the additional security provisions had to be laid down and
formalised. All these found their expression in the legal system estab-
lished in the territories.

G. THE LEGAL SYSTEM

Safeguards against encroachment upon rights and freedoms are not

an abstract matter. Whether such safeguards are legal or administra-
tive, statutory or based on governmental regulations, they must be
real and concrete. Preferably they should take the form of written
rules of law expressed in an ordered, comprehensive and clear system
of law and in the establishment of competent and accessible courts of
justice of appropriate jurisdiction adjudicating according to fair pro-
cedures and by processes which are not cumbersome, expensive and
dilatory.
This approach is clear and explicit in the guidelines set out in the
Israeli. Manual (Chapters F and H) and in a long series of legislative

acts rélating to the protection of life and. ensuring basic

freedoms and providing for orderly the justified
sensitivity to. the freedom of religious worship in- the. Holy Land,

special mention should be made of the Protection of Holy Places’

Order??
whichprovides
thattheHolyPlacesshallbe
protected
from
No. ‫ ב‬Coll. P& O. .J( & S:),663 on;the‘Lawofthe
||same passedby theKnesseton27June 17 gntheeve. there-unifica-
7 : ‫יה‬ 2

‫ל‬ 4 . * >

2 ee ;

2 :

- = +

- % ne
7 ‫ב‬ ag: - 4 %,
¥ 4 re,

cae 5 ‫ב‬ ine * 4 .

‫ל‬ = ‫שה‬ 2
Se ‫ל‬
-

0 M. SHAMGAR

destruction or any other violation and anything likely to’ violate the
freedom of access of members of different religions to the places
sacred to them or their feelings with regard to those places. Any

person acting in contravention is liable to imprisonment as ‘provided

tor in the Order.7? Freedom of movement to and from the territories
—into Israel and from it as well as into the neighbouring Arab coun-
tries and from them—introduced by the military government, ensured
tor the first time free access by believers of all religions and denomina-
tions to their places of worship and assisted in the transformation of
the rights decreed in the above mentioned Order, from theory into an
every-day practice. Israel permitted pilgrimage to Mecca and the only
restrictions were those imposed by the J ordanian and Saudi authorities

on Israeli moslems. Only after persistent and continuous efforts by

the Israeli governmental authorities were these restrictions removed.

One of the distinguishing features of the Israeli approach: was the

general trend to include legally qualified persons in all judicial and

quasi-judicial bodies and even to accord to them decisive roles and
positions. Special standing was granted by security legislation, militaty
directives and orders, as well as in practice, to the officers of the Mili-
tary Advocates Unit, who act exclusively as presiding judges, single
judges, legal advisers and prosecutors. For example the Military Com-
mander of the Region cannot appoint legally qualified judges without
the recommendation of the Military Advocate General who has an
independent position according to the Military Justice Law, ,1955 and
Army Orders and has been charged by law (section 178 of the Military
Justice Law) with the task of supervising the enforcement of justice
in the Army.
The Hague Regulations and the Fourth Geneva Convention do not
include any provisions in this respect and any High Contracting Party

73 The dissimilar attitude of the Jordanian authorities in this. matter seems to-
been inspired by Article 2 of the Jordanian Constitution of 1 January. 1952
which provides that Islam is the religion of the State. See e.g. the Jordanian Law
for the Amendment of the Law on the Possession of Real ‘Property by Corpora-
tions (Law No. 4 of )1965 which was apparently enacted in impede
the acquisition of real property in Jerusalem by Christian religious or charitable
institutions. Jews did not have any. access to their Holy Places before: .1967 Cf.
Costa Luca, “Discrimination in the Arab Middle East” in Case Studies on Human
Rights and Fundamental Freedoms, Vol. I, .M( Nijhoff, p. .21
 LEGAL CONCEPTS 51

could be regarded as strictly conforming with the demands of the

Regulations and Convention, respectively, by establishing Military
Courts or Appeal Boards which do not include a single judge who
is legally qualified: Articles 65 or 78 of the Fourth Convention do
not include any provision in this regard.
As stated, the Israeli Military Government relied to a very large
extent on the better ability of qualified attorneys to ensure indepen-
dent adjudication and due process of law and to prevent beforehand
approaches which do not conform with the norms of natural justice.
The SPO provided therefore that every court shall be headed by a
permanent president who is a lawyer of six years standing at least,
every bench of three will be presided by such a lawyer and a single
judge shall be always legally qualified as stated. The same approach

was applied in the Appeals Commissions )redrO( and in the Claims

Commissions ,)redrO( in the Appeal Board against internment and
similar bodies (see Appendix to this Volume).
It is regretful that this approach, namely the obligatory infusion of
judicial and quasi-judicial bodies with legally qualified personnel, has
not been adopted by the parties to the Protocol, drawn up during the
Geneva Conferences of 77
The second hallmark worthy of mention is the ensuring of the
right of appeal against administrative decisions: Decisions of claims-
officers, orders of internment, orders of deportation etc., all are subject
to appeal (the two last ones even to recurrent appeals); in case of the
denial of such right by administrative omission or arbitrariness the
right of application to the Israeli Supreme Court provides an alter-
native and immediate remedy, having an overriding effect.
The importance of the right of appeal was underscored by the
Supreme Court in the case of Quasme et al. v. Minister of Defence
)1981( 25 P.D. )3( .113 When an omission to ensure the practical
application of the right of appeal occured, which was unwarranted in
the opinion of the majority of the Court, the Court stressed the
importance to accord this right in appropriate circumstances—even
after deportation from the region—in order to enable re-consideration
of the case as requested by the deportee, by the existing independent
appellate body.”

74By comparison no right of appeal was accorded, even in peace time, by the
Allied forces occupying the Rhineland after World War I ,muigleB( France,
52 M. SHAMGAR

The third hallmark is the consistent policy of judicial moderation:

Notwithstanding the state of belligerency and the internecine atmos-
phere of the Middle East where premeditated homicide of Israeli civi-
lians and foreign tourists, as well as of non-conforming Arab civilians
in the territories, is an admitted policy of the P.L.O. and each of its
subsidiaries, no death sentences were carried out; mandatory capital
punishment has been abolished in the local law, and superseded by
the life sentence whereas it had been applied in practice in the Re-
gions, by the former local judicial authorities, until the establishment of
the Israeli Military Government. It has been claimed that this policy
could influence the effectiveness of deterrence, especially when taking
into consideration that all the neighbouring countries practice capital
punishment in peace and in war, in Jordan for example even for such
offences as voluntary sale of land to Jews.
The Israeli attitude reflected a preference for the long- range results
inherent in restrained attitudes and due consideration to Israeli norms
and to Israeli and international susceptibilities.

Pa
The description of courts and tribunals dealing with matters per-
taining to inhabitants of the territories can be divided by reference to
four pivotal institutions.
)a( Independent local courts in which justice is by
local judges according to the system of law in force prior to
establishment of Military Government. 9
The basic constitutional outline of the relationship between local
and the enactments of Military Government was given in Pro-
clamation No. .2 This Proclamation, enacted on the day of the estab-
lishment of Military Government, was published in identical wording
in Hebrew and Arabic in all the territories and provided infer alia:

.2“ The law which existed in the Region on the 7 June 1967
shall remain in force so far as there is nothing therein
repugnant to this Proclamation or any other Proclamation
or Order which will be enacted by me, and ‘subject to such
as may result from the establishment of the.
rule of the IDF in the Region.

, and the United States), when 41808 local inhabitants were deported
between 1920 and :1925 Ernst Fraenkel, Military Occupation and the Rule of
— University Press )1944 pp. .129131

..
 LEGAL CONCEPTS 53

.3 )a( All powers of government, legislation, appointment, and

administration in relation to the Region or its inhabitants
shall henceforth vest in me alone and shall be exercised by

me or by such other person appointed by me in that behalf

or to act on my behalf.
)b( Without derogating from the generality of the fore-
going it is hereby provided that any duty to consult, obtain
consent and the like, prescribed in any law as a condition-
precedent for legislation or appointment, or as a condition
for the entry into force of any legislation or appointment,
is hereby repealed”’.

These provisions conform with Article 43 of the Hague Regulations

and Article 64 of the Fourth Geneva Convention. In consequence of
Proclamation No. ,2 local law remained in force whatever the legal
basis of its enactment in so far as it was not amended or repealed by
the enactments of the Military Government. These enactments, called
“security may be viewed as a layer of military statutes,
superimposed on local law which was in force on the day of entry
of the Israel Defence Forces into a Region. The relationship between
these military enactments and local law was defined anew in section 8
of the Interpretation Order which states that —

)a( each security enactment has preference over any local law, even
if it has not explicitly repealed the same, and
each security enactment promulgated by the Commander of

the IDF in the Region has preference over every security enact-
ment promulgated by the military commander of a district, or
by any other authority acting on behalf of the Commander of
the IDF in the Region, even if it has not explicitly repealed
the same.

_ ~Changes in local law were only effected in cases where the exigencies
of war, the maintenance of public order and safety or the welfare
of the local population so required.” Such situations were at first few

75 Section (239 of the Order (Judea and Samaria) .oN( )130

P.
Coll.
& O. .J( & .p-
S.) .283
%- Almakadssa v. Minister of Defence (above n. )56 dealt directly with the question of
the application of the norms of Article :43 The Jordanian Labour Law of ,1960
Chapter XIV, prescribes the procedures for the solution of labour disputes, in-
4 M. SHAMGAR

and as a matter of policy, important changes were avoided as far as

possible. The substantial duration of this system of government and
the changing needs of economy and society necessitated and justified
further legislative steps .g.e( women’s right to vote in municipal
elections). The bulk of civil and criminal law applied by the local
courts remained unchanged. The changes introduced include the
adaptation of a new traffic code, identical to the one in force in Israel,

a step which was deemed necessary because of the freedom of

movement between the territories and Israel; driving according to
changing patterns over different parts of the same highway was rightly
regarded as dangerous. For similar reasons Military Government in-
troduced Third Party which was non-existent in Judea and
Samaria, the Golan and Sinai whereas it was part of the law of the
British Mandate in Palestine in force in the Gaza Strip but had not
entered into force there since its formal enactment in .1947 In criminal
law changes were also minimal, the main being the abovementioned

cluding referal to an arbitration-council composed of representatives of employer

and employee organisations. Such organisations were, however, non-existent. The
petitioning society owned a hospital in Bethlehem and a dispute between the
society and its employees seemed to be insoluble because no arbitration-council
could be appointed. The Military Commander enacted an amendment to the
Labour Law which accorded the right of appointment of representatives directly
to the employers and employees, failing such appointment the members of the
council were to be nominated by the Commander. Cf. Robert E. Treton, “The
Rhineland Commission at Work” )1923( 17 AJIL ,460 ,468 and H.T. Allen,

The Rhineland Occupation (Indianapolis )1927 p. .105 The Supreme Court ruled
in its majority opinion that this enactment was within the powers accorded by
Article .43 It held that in addition to the right of Military Government to pro-
mote the purposes of the war and the safety of its forces, it has the duty to
maintain the interests of the inhabitants, including their social life and legal
relations. Although the territory should be governed as a rule according to local
law, there are situations in which the duty towards the inhabitants necessitates
amendments of local law, owing to changing needs. In deciding whether an
amendment conforms with Article 43 an important element is its motivation,
namely whether Military Government intended to advance its own interests or
to promote the welfare of the inhabitants. The words “unless absolutely prevented”
in Article 43 have to be interpreted in connection with the duty towards the
population and this includes the duty to regulate economic and social interests.
See Prof. Y. Dinstein, Legislating Power in Occupied Areas )1972( 2 Iyunei
Mishpat ;505 and chapter IV of this Volume; Schwenk, 54 Yale Law Journal
)1945( ;393 Greenspan p. ;221 von Glahn p. .97
of Motor Vehicles Order (Third Party Liability) (Temporary Provi-
sion) (Judea and Samaria) .oN( ,)55 Coll. P & O .J( & S.) p. .107
 LEGAL CONCEPTS 55

abolition of the death penalty which was the mandatory punishment for
murder in all territories on the eve of the entry of the IDF.”8
The local courts in Judea and Samaria and the Gaza Strip continued
to function with local judges willing to continue to serve. They have
administered justice in complete independence and without any inter-
ference whatsoever by Military Government. Judgments of the local
courts are pronounced in the name of “law and
The court systems in Judea and Samaria and in the Gaza Strip are
headed by a local Chief Justice. Courts of first instance in Judea and
Samaria sit in Hebron and Nablus, the Court of Appeal is seated in
Ramallah. Magistrates Courts function in different localities, as before
the establishment of Military Government. Vacancies in the judiciary

are filled by the appointment of judges chosen from among local

Arab lawyers. In Judea and Samaria it was necessary to abolish the
right of recourse to the Court of Cassation which sits in
In order to safeguard the rights of the inhabitants, its powers as a
High Court of Justice were transferred to the Court of Appeal.
The civilian courts of the Gaza Strip took over judicial activity in
Northern Sinai which had been in the hands of military courts during
the Egyptian rule down to .1967 Their internal division remained
otherwise unchanged.
In the Golan Heights a unique problem arose: no judges or lawyers

or even law books had remained. The judicial machinery of the pre-
vious administration was therefore totally disrupted and, according to
the accepted principles of international law, it was the duty of the
military administration to establish courts of its own. A civil court
manned by an Israeli judge was therefore set up in the Golan Heights.*!
Military administration confined itself entirely to initiating the local
courts and, as stated, left them to be run by their own judges and their
own administrative staff. The legal officer at Military Government HQ
representing the Ministry of Justice has no powers whatsoever in

78 Local Courts Order (Capital Punishment) (Amendment No. )1 (Judea and

Samaria) .oN( ,)268 Coll. P & O .J( & S.) p. .537
79 Oppenheim, Vol. II, par. ,127 ;447 Jurisdiction Order (Local Courts) -dnemA(
mient No. )1 (Judea and Samaria) .oN( ,)57 Coll. P & O .J( & S.) p. .158
80 Order No. 57 ibid.
81 Courts Order (Ramat Hagolan) .oN( ,)185 Coll. P & O ).G.R( p. .626 Courts
Order (Ramat Hagolan) .oN( )273 see Appendix; L. v. N., Annual Digest,
,1947 No. ,110 p. .243
56 M. SHAMGAR

regard to adjudication or reviewing of litigation, as practised by other

countries in similar circumstances, and he confined himself to ad-
ministrative supervision.
)b( As mentioned above, the Supreme Court of Justice of Israel
sits as the High Court of Justice to hear petitions by inhabitants of
the territories against the Military Government and pass under judicial
review the use of governmental powers. This matter will be dealt
with in detail in a separate study in this volume.
It goes without saying that the awareness to the existence of a right
of recourse to the Supreme Court contributed largely to the creation
of a climate of qualitative—and not only formal—legality. Deviation
from legality by authorities and individuals cannot always be avoided.
But as has been any judicial system involves continuing ac-
commodation between the need to preserve a coherent set of ordering
principles and the quest for tolerable results in individual disputes.
One test of any system is the incidence of compatibility between
dominating formal theory on the one hand and justice for the indivi-
duals affected on the other hand. Constant harmony between the two
is an unattainable ideal, though an ideal nonetheless; yet a legal system
is not judged in the main according to the few cases which are out of
the ordinary course of things, but generally according to the ordinary
ones. As to exceptional cases—cases of deviations— the system should
not be judged accordirig to them but mainly according to the character
of the steps taken in order to remedy unwarranted deviations from
the norm.
)c( Military Courts have been established in conformity with the

norms laid down in the Fourth Geneva Convention and adjudicate on

the basis of a detailed system of statutory provisions defining offences
and prescribing procedures.*
This subject will also be examined in a separate study and therefore
it suffices here to mention the following provisions:
The accused has the right to be represented by counsel of his own

82 Shamgar, Is. Y. H. R., Vol. I, .266

83 Security Provisions Order published in Hebrew and Arabic as Annex to-
clamation No. 3 on the first day of the establishment of Military Government segs
in each of the territories. A consolidated version, including amendments has.”
been published in Coll. P& O .J( & ;733 identical versions been pub:
lished in other Regions. ‫ל‬
 LEGAL CONCEPTS 57

choice;&* when he does not have the necessary financial means a law-

yer whose expenses and fee are defrayed by the public can be
appointed by the court. The appointment is obligatory in the case of

grave offences if the accused agrees to the appointment.

Where necessary, a court interpreter acts, but the accused has the
right to request his replacement.
The principles of criminal responsibility and the rules of evidence
and procedure are those obtaining in the Anglo-Saxon system of law,
identical with practice in Israel. The accused is called upon to exercise
his discretion to testify or adduce evidence on his behalf, only after
the prosecution has made out a prima facie case. Trials are normally
heard in public and only exceptionally, wholly or in part, in camera
when state security so demands. The courts apply only those pro-
visions of law which were applicable prior to the offence charged,
namely which have been enacted and published and brought to the
knowledge of the inhabitants in their own language. Penal provisions

are never retroactive.®

The President of a Military Court or a single judge is always a
lawyer, largely an experienced member of the bar in reserve service.
Every conviction by a court of three is subject to confirmation by
the Commander of the Region who is also empowered to reconsider
judgments by a single judge or by a bench of three on application by
the convicted, but only in order to reduce sentence.
)d( Appeal Committees (Claims Commissions) presided over by
lawyers have been set up to hear applications relating to property held
by the Custodian of Government or Absentee Property or compen-
sation for damage caused by the Army. The right to counsel applies
here as well.

H. THE SUMMING UP

Military government did not succumb to the dangers inherent in

the exercise of absolute power. Basic concepts and policies prevented
such pitfalls efficiently. Furthermore, the individuals manning the
diverse positions in military government, were inevitably the products

84The statement of the Report of the Amnesty International Mission of 2 Sep-

tember 1980 p. 56 that counsel in the administered territories has to be chosen
from an officially sanctioned list—is entirely without foundation.
85 Js. Manual, pp. ,26 ;27 Art. 65 and 67 of the Fourth Geneva Convention.
58 M. SHAMGAR

of their culture and carried with them the impact of the legal and
moral concepts of their society . Individuals may sometimes take
action which runs counter to those concepts; but here they were
sensitive in the large majority of cases to the traditional values of
the political framework they represented and were loath to sacrifice
them for reasons of expediency or in order to achieve immediate ends.
It seems that the institutional pluralism and the dispersion of power
in the Israeli political system and to a very large extent the supervisory

powers of the Supreme Court of Justice, imposed additional con-

straints and ensured the prevention or correction of transgressions.
The main features—past and present—of the Israeli legal system
in the administered territories merit a short résumé of their distinctive
traits, which naturally does not claim to be exhaustive:

)1( For all practical purposes local courts and local officials continued
to function as before.

)2( Local inhabitants have access to the Supreme Court of Israel

for grievances against the Israeli executive arm, civil or military.

)3( The military court system applies norms, procedures and rules of
evidence identical with those of the ordinary criminal courts in
Israel.

)4( Appeals Committees presided over by lawyers deal wtih compen-

sation for damage and proprietary disputes between inhabitants
and Military Government.

)5( The right counsel in all legal and administrative procedures

is assured.

)6( Military Government published enactments covering a wide range

of matters and provided hereby solutions for administrative, eco-
nomic and social problems which had risen as a of the
establishment of Military Government, the security needs of Israel
and the welfare of the population.

)7( Last but not least—actually for the first time in these areas—
freedom of religious worship, freedom of movement, freedom of
the press (although supervised according to national security
criteria by military censorship) and generally the right to criticise
and voice grievances, and to rely on judicial review and public
opinion, had been introduced.
 LEGAL CONCEPTS 59

As mentioned, all this by itself does not mean that every deviation

can be prevented beforehand but it indicates the considerable bona fide

effort made in order to fashion a system of checks and balances to
protect the rights of the individual and provide the supervisory ma-
chinery for discovering flaws and redressing them.
 APPENDIX A
Organisational Structure of Military Advocates Platoon
in area under Military Government in time of war

Legal Adviser to
Area Commander
(Commander of Platoon)

Platoon HQ*
2 Assistant Legal Advis.
2 Secretaries )stsipyT(
1 Driver

6 .lcni( Legal Adviser)

District No. **5

District No. [**
1 Legal Adviser
1 Legal Adviser 2 Presidents of Court
1 President of Court 2 Prosecutors
1 Prosecutor 2 Court Clerks
1 Court Clerk 3 Secretaries )stsipyT(
2 Secretaries )stsipyT( 2 Translators
1 Translator 2 Cashiers (Fine Coll.)
1 Cashier (Fine Collector) 2 Drivers
1 Driver
5+ 6
‫יס‬

District No. 4 Total number:***

Attorneys
49 Non-legal staff,
‫או טי א‬ CESS TRSE SEE

* Stationed in Military Government HQ.

** The differences in manpower are based on the number of inhabitants in district,
*** ‫חז‬ the Six Days War the whole legal staff (except the Legal Adviser of the
Area) consisted of reserve officers; most of the non-legal staff were also reserve
.50101015
 CHAPTER II

ON THE LEGAL STATUS OF THE GAZA STRIP

Carol Farhi*

A. HISTORICAL BACKGROUND

The long history of Gaza stretching far back into the past is still
relevant for themes which writers in different periods have repeatedly
stressed namely, that Gaza has always been of prime strategic im-
portance in the military history of the region, and that it has always
been considered an integral part of Palestine.
Leaving aside the first Israelite 1200539( B.C.) and the Persian
539332( B.C.) periods, upon its capture by Alexander the Great Gaza
became

Hellenistic city whose fate is closely identified with the

fortunes of the Western world. .. but it never loses its importance

as the strategic point on the high road between Asia and

Largely destroyed by the Jewish King Alexander Janai in 96 B.C. for

political reasons, the city was rebuilt by Pompeius, an event which
inaugurated the Roman Period. Around 600 A.D. it came under Mos-
lem rule which lasted until the middle of the eleventh century. Sub-
sequently it was taken over by the Crusaders ,)10961300( to be fol-
lowed by four centuries of Turkish rule extending with short breaks
until the First World War.
In each of the above periods Gaza was the key to wider conquests.
At the end of the last century Maspero in his classic work The
Struggle of Nations stated that:

Formerly Assistant to the Attorney-General of Israel. Second revised text. First

>

edition published in Publications of the Legal Service, Vol. ,2 Ministry of Justice,

Jerusalem, .1971 The views expressed in this article are the author’s and are not
necessarily those of Israeli official authorities.
1 M.A. Mayer, History of the City of Gaza ,)1907( p. .44
61
62 C. FARHI

“No corner of the world has been the scene of more sanguinary

engagements or has witnessed century after century so many

armies crossing its borders and coming into conflict with one
another. Every military leader who, after leaving Africa was
able to seize Gaza and Ascalon became at once the master
of Southern Syria’’?

And Norman Bentwich, writing in more recent times, concludes

that:

...azaG“ has many times caused a check to invaders’ progress.

For centuries it was a centre of struggle between the Philistines
and the Hebrews and even Alexander the Great... had to lay
regular siege to it. A thousand years later Omar, the Arab, found
it a greater stumbling block than Jerusalem and Saladin had to
make his greatest efforts before he wrested it from the crusaders
who had established there one of the chief fortresses of the Latin
kingdom. The Tartar hordes razed its walls and citadel but Gaza
remains of great strength and strategic importance.
Here a ridge runs across the coastal plain,and the army that
has passed it may sweep along the Valley of Sharon till it
reaches Haifa’’.*

A single modern example underlines the military importance of

Gaza. The battles for the city constituted one of the turning points
in the British campaign in the region during the First World War.
After a disastrous beginning the capture of Gaza in July 1917 contrib-
uted considerably to the collapse of the Turks in the Middle East.*
An historian of Gaza writing of ancient times observes that:

at various times of its history Gaza came under Egyptian

rule, it was never reckoned as part of Egypt but rather as a city
of Syria, Palestine or Phoenicia... Ptolemy reckoned it as be-
longing to Judea, and Strabo assigned it to Phoenicia, a narrow
strip of land along the sea between Gaza and Antilibanus and
towards the Arabians is called Judea. .. Herodotus refers to Gaza

as the city of the Syrians, Stephen of Bysantium calls it a Phoeni-

cian city and says that in his day it belonged to Palestine, though

.M2 Maspero, The Struggle of Nations ,)1896( p. .135

3 Bentwich, Palestine of the Jews .)1919(
4 Lloyd George, War Memoirs, Vol. II ,)1938( pp. .108692
 THE GAZA STRIP 63

it had formerly been part of Egypt. Marcus Diaconus (4th Cen-

tury A.D.) says that in his time it was the district of Filastin. . .
but during the crusades it was a fief... Sufficient has been said
here to show that with its geographic position the city was generally
reckoned with Syria rather than with

The situation was the same at the end of the 18th Century. According
to one traveller,

“Palestine is a district independent of every Pachali. Sometimes

it has governors of its own who reside in Gaza. The situation of
Gaza... the medium of communication between two nations, has
rendered it at all times a town of some importance.
It has however shared in the general destruction and notwith-
standing its proud title of the capital of Palestine, it is no more
than a defenceless village peopled at most by only 2000 in-
habitants”’.®

Right down to the beginning of the 19th century Gaza had a Jewish
community. In the 7th and 8th centuries of our era it was for “the
Jews of southern Palestine... a kind of capital during the period in
which they were excluded from In the 14th century,
the community included immigrants from France and Germany, and
in the following century it was described as a cosmopolitan city,
numbering among its inhabitants Ethiopians, Arabs, Egyptians, Sy-
rians, Indians, Jews and Eastern Christians. At about the same time,
the traveller Meshullam of Volterra, an Italian Jew, noted that the
Jews had a monopoly of wine production. In ,1641 another Jewish
visitor, Samuel ben David, found about 100 Jewish owned shops, a

synagogue and a Khan. Again in ,1733 there is a record of a large

synagogue.
Turkish rule of Gaza was momentarily interrupted by revolt in 1763
and its occupation by Ali Bey in 1766 but within a decade it had
returned to Turkish rule. The city was next captured in 1799 by
Napoleon, fully aware of its strategic importance as the outpost of
Africa and the doorstep of Asia. Subsequently in 1801 the French
withdrew in compliance with their Convention with the Ottoman

5 Mayer, op. cit., p. .7

6 Volney, Travels through Egypt and Syria, ,1783 ,1784 ,1785 p. .200
7 J.A. Parkes, History of Palestine ,)1949( p. .94
 4 .0 FARHI

Empire.* On the suggestion of Napoleon a native divan was established

and the Jews fled the city and by 1811 none were left.®
Under Mehemet Ali )18321840( Gaza fell within the orbit of
Egypt, as part of his occupation of Palestine. Once, however, his
initial prestige as a champion of Islam had passed its peak, Palestine
fell into open rebellion .)1834( A modern Arab scholar sums up the
situation in the following manner:

“It would be a mistake to assume... that Ibrahim Pasha (the son

of Mehemet Ali Pasha) was admired everywhere in Syria and
Palestine in 1831 as a savior. The Royal Archives of Egypt...
show that Ibrahim Pasha was regarded with antipathy in almost
all circles in Syria and Palestine. .. [The people] accepted his rule
unwillingly and under stress of

More particularly, a relatively large number of Moslem theologians

were imprisoned or banished for active opposition to the Egyptian

administration, apparently due to the feeling that Mehemet Ali did not
really represent the interests of Islam. To a considerable extent, anti-
Egyptian sentiment was conditioned by the absence of a clear-cut grant
of power to Mehemet Ali by the Sublime Porte. The Royal Archives
of Egypt apparently contain nothing beyond a simple firman assigning
the Government of Egypt, Arabia, Syria and Crete to the Pasha in
.1833 As stated by Asad J. Rustim specifically in “the region of Gaza
the bedouins had taken power into their own hands and the whole
countryside was infested with their bands”’.
With the end of Mehemet Ali’s ventures in Palestine in ,1840 the
Turks were restored to the whole of Syria and Palestine and with it
Gaza. “In an incredibly short time the evacuation was complete and
the last traces of the Egyptians were lost in the desert sands and the
last town in Palestine .e.i( Gaza) went into the hands of the
After 1840 the region was divided by the Turks into three sanjaqs,
Gaza being part of the sanjaq of Jerusalem, controlled from Constan-
tinople. The Gaza area included Khan Yunis, Majdal and Faluja with

8 P. Gelat, Répertoire Général Annoté, Vol. Il, p. 423—Convention entre l’armée

frangaise du Caire et l’armée turco-anglaise pour de l’Egypte par les
frangais.
9 Mayer, op. cit., pp. ,93 ,101 .163
10 Asad J. Rustim, The Royal Archives of Egypt and the Disturbances in .1834
11 Mayer, op. cit., p. .103
 THE GAZA STRIP 65

a total population of ,82000 the city itself having some 6000 inhabit-
ants, including 33 Jews. Until 1887 the sanjaq of Jerusalem belonged
to the vilayet of Syria but it then acquired independent status with
direct responsibility to the Ottoman Minister of Interior. Some few

years later, when autonomous local government was introduced, Gaza

received its first municipal council )1893(22
Thus Gaza was within Palestine. It was never considered a part of
Egypt™ and it did not figure in the boundary disputes between England
and Turkey at the end of the 19th Century and the beginning of the
present century. When in 1906 the Turkish Sultan yielded to the British
ultimatum and continued the frontier along the Rafiah-Tabah line,
reducing the territory of Turkish Palestine by several thousand miles
as comparable with its area in 1892 or earlier, Gaza clearly remained
in Palestine.14
In the years immediately preceding the First World War, Gaza was
one of the important points in the struggle for economic power center-
ing on the railways. The French Railway scheme before 1913 called
for a rail line along the coast which would have gone through Gaza.
The French also intended to connect their Jerusalem-Jaffa line with
the Transjordanian branch of the Hejaz Railway. The Turks expressed
a willingness to acquiesce if the French would build a strategic line
from Ramle to the Egyptian frontier. On the eve of the War complex
negotiations were in progress between France, England, Germany and
Turkey, in which all of the parties had conflicting aims. As stated:

“As a result Asiatic Turkey was to all intents and purposes

partitioned into economic and political spheres of influence...
Only one area remained under dispute—Palestine and the adjacent
parts of Lebanon, Transjordan and the Hejaz. Here France hoped
to extend her railway system via Galilee, Samaria and Judea
towards the Egyptian frontier... She wanted to secure the ports
from Beirut to Jaffa...
Britain aimed at preventing foreign control of a region so close
to her Egyptian possessions and wanted to convert Palestine
into a buffer zone for the Suez

Raphaeli, “Gaza Under Four Administrations”, )1969( 9 Public Administration

in Israel and Abroad ,1968 ,40 .4142
13 Mayer, op. cit., p. .7
.F.H14 Frischwasser-Ra’anan, The Frontiers of a Nation, ,)1955( p. .40
15 p. .56
6 C. FARHI

B. THE PALESTINE MANDATE

The history of Gaza from 1914 to 1948 is part of the history of

Palestine and the British Mandate. A detailed study of the latter lies
outside the scope of this paper. As regards Gaza, however, it may be
said to have formed one of the six districts into which Palestine was
divided, governed by a British District and never
treated as part of Egypt even by the Egyptians.
Speaking in the House of Commons on March ,14 1957 the Foreign
Secretary of Great Britain, Mr. Lloyd, stated that no country had legal
sovereignty over the Gaza Strip.17 The roots of this statement go back
to the First World War. Even before the Sykes-Picot Agreement of 1916
and before the capture of Palestine from the Turks, the English had
been engaged in various plans for the disposition of the entire region.
The MacMahon-Hussein correspondence gave certain assurance in this
direction but whether or not these included Palestine has been the

source of a long and bitter controversy. New light has now, however,
been shed, from which it is unquestionable, first, that Palestine was
never intended to be included in the area under Arab rule and that
the Sheriff understood and accepted this, and secondly that the whole
agreement depended upon an Arab uprising coming to the aid of
the British and this never occured.’®
Under the Sykes-Picot Agreement, Palestine was divided into three

areas, one in which British interests dominated, one in which French

interests were paramount and the so-called Brown Area under Inter-
national Control. Gaza was situated in the Brown Area. The Sykes-
Picot Agreement was obviously not the last word. The vicissitudes of
Anglo-French rivalry and the changing notions about the whole
Middle East left the problem of Palestine still unresolved by the end
of the War. In 1919 Balfour noted that by then the whole concept of
the region had changed from one in which the Great Powers would
control territories to a concept of a national existence of yet ill-defined
nations; as stated:

“The language of the Covenant assumes or asserts that in regions

we are discussing... there are in advanced chrysalis state -edni‘

16 Raphaeli, op. cit., pp. .4445

17 House of Commons Debates, Vol. ,566 Col. .1320
Friedman, “The MacMahon-Hussein Correspondence and the Question of Pales-
tine”, )1970( Journal of Contemporary History .83
 THE GAZA STRIP 67

pendent nations’ sufficiently developed to demand ‘provisional

Tecognition’ each of which is to be supplied with a mandatory
till it is able to stand alone. Where and what are these independent
nations? Are they by chance identical with Syria, Mesopotamia
and Palestine? If so the Coincidence with the Sykes-Picot Agree-
ment is truly amazing, for no such idea was in the minds of those
who framed it. They started from the view that France had ancient
interests and aspirations in Western Syria; that Britain had obvious
claims in Bagdad and Southern Mesopotamia; that Palestine had
a unique historic position; and that if these three areas were to
be separately controlled, it was obviously expedient that none of
the vast and vague territory lying between them, which had no
national organization should be under any other foreign in-

As part of the International Zone, Gaza might have been considered

by Balfour as part of that “vague territory”, but this seems unlikely
in view of its historic relationship to Palestine.
Balfour continued to elaborate the theme:

“In other words when they made the tripartite agreement they
never supposed themselves to be dealing with three nations already
in existence, ready for ‘provisional recognition’ only requiring
the removal of the Turk, the advice of a mandatory and a little
time to enable them to ‘stand alone’. It never occured to them
that they had to deal at all with nations in the modern and
Western sense of the term. With the Arab race, Arab culture
and Arab social and religious organizations (to Say nothing of
Jews, Maronites, Druses and Kurds) they knew they had to
deal. But this is a very different thing.”

From today’s perspective, this statement illustrates the wide gulf

between pre-First World War and post-First World War thinking,
although attitudes developed in the earlier period continued to colour
the attitudes of the ruling elements in the Mandate period and explain
the general confusion which the Mandate was established, which was
referred to, inter alia, by E. Lauterpacht:

.L.E19 Woodward and R. Butler, Documents on British Foreign Policy, Vol. IV,
No. 242—Memorandum by Mr. Balfour Respecting Syria, Palestine and Mesopo-
tamia, 132187211744 Aug. ,11 ,1919
8 C. FARHI

“The only certain starting point in any consideration of the present

status of the Gaza strip is the fact that prior to the coming into
force of the Treaty of Lausanne on August ,6 ,1924 the strip

was part of an area which was formally Turkish territory. It is

true that Palestine had in fact already on July ,24 1922 been
placed under British Mandate but applying the doctrine that an

enemy cannot be deprived of territory pendente bello, it is clear

that Turkey did not validly lose her title to the area until she
renounced it in terms of Article 16 of the Treaty of Lausanne.
Thereafter it is difficult to determine the devolution of sovereignty

over the area. Turkey did not identify the parties in whose favour
she renounced the title; though reference was made to the fact
that the future of the area was being settled by the parties con-
cerned. Who these parties might be was not indicated, but since
the Mandate for Palestine had already entered into force ‘the
parties concerned’ must presumably have been the parties to
the Mandate Agreement.’”?

With respect to this interpretation of the situation, it may be of

interest to note the changes made between the draft of Article 16 at
the Lausanne Conference of 1922 and the final Article as it appears
in the Treaty. The draft is as follows:

“Turkey hereby renounces all rights and title whatsoever over or

respecting all territories situated outside the frontiers provided
for in the present Treaty... Turkey recognizes and accepts the
measures which have been or will be taken respecting the attri-
bution, independence or any other regime of these

The final Article reads:

“Turkey hereby renounces all rights and title whatsoever over

or respecting the territories situated outside the frontiers laid

down in the present Treaty... the future of these territories. . .
being settled or to be settled by the parties

Lauterpacht, Note on “State Territory” )1957( 6 I.C.L.Q. .513

21 Records of Proceedings, Lausanne Conference on Near Eastern Affairs ,19221923
Turkey .oN( ,)1 ,1923 Cmd. .1814
22 Treaty of Peace with Turkey, Treaty Series No. 16 )1923( Cmd. .1929
 THE GAZA STRIP 69

The above interpretation would have been much stronger if the draft
article had been the final article. The significance to be given to the
change is difficult to assess and is outside the scope of this paper.
At each stage of the treaty making process between Turkey and
the Allied Powers there appears to have been an increasing vagueness
as to precisely what was meant. At the London Conference on February
,21 ,1920 there was an understanding that the Mandate should be
assigned to Britain and that the boundaries of Palestine were to be
defined in accordance with its ancient limits of Dan to Beersheba. At
the San Remo Conference some two months later on April ,25 ,1920
the Supreme Council agreed upon the terms of the Article relating
to Mandates to be inserted in the Turkish Treaty. So far as Palestine
was concerned it included the Balfour Declaration.”
The Palestine portion of the Mandates article agreed upon by the
Supreme Council appeared as Article 95 in the Treaty of Sévres. That
Treaty was, however, never ratified by the Turks who were outraged
by some of its other sections and this led to the Greco-Turkish War.”4
In the final Treaty of Lausanne, Article 95 was replaced by the progress-
ively more vaguely worded Article 16 cited above.
It is to be noted, however, that Article 17 of the Treaty of Lausanne
dealing with Egypt is more definite.

“The renunciation by Turkey of all rights and titles over Egypt

and over the Soudan will take effect as from the 5th of November
”.1914

There can be no question that Gaza was not included in the pro-
visions relating to Egypt but in the amorphous territory of “limitrophe
countries” referred to in Article .16 It was part of the British Mandate,
assigned by the Supreme Council of the Allied Powers in ,1920 approved
by the League of Nations in ,1922 which took effect in 192325 This

was not a little the result of British action during the War itself: The
British Army took over the administration of Gaza shortly after its
capture in .1917 When the Turks submitted in October ,1918 the
British military authorities enforced a de facto partition. An Occupied
Enemy Territory Administration ).A.T.E.O( was set up which, it
has been pointed out, politically influenced the post war settlement.

.L23 Stein, The Balfour Declaration, .)1961(

.F24 Schevill, History of Europe ,)1952( p. .785
25 Anglo-American Committee of Inquiry, A Survey of Palestine.
00 C. FARHI

“The interior of Syria and Transjordania should according to the

1916 agreements have been divided into “Zone A” and “Zone
B” with Arab governments under French and British protection
respectively. Instead, Allenby established one unit in the area
O.E.T.A. East, under the administration of Feisal... O.E.T.A.
South which included the “Brown Zone” of Palestine (and there-
fore Gaza) should have come under Anglo-French Allenby
however set up a purely British Administration in the

British Military Occupation of Palestine lasted for two years, until

a Civil Administration was established in July

Administratively Gaza was one of the six sub-districts of Mandatory
Palestine, 13689 sq. km. in area, with an aggregate population in
1922 of 73887 16722( urban). Between 1922 and 1931 the population
increased by %42 and between 19311944 by ,%52 the urban
population being at the last date .33160 There was a growth in the
Jewish population from 330 to 4218
Mandatory supervision extended to every aspect of local government.
It has been described by Edwin Samuel who was intimately associated
with the administration there:

“In the local district hierarchy, I was number three and given

a fascinating job—the supervision of all local government...

Eight Arab towns had municipal status... My work involved...
supervision of council elections and approval of their laws, budgets
and senior staff appointments. It also involved close liaison with
the district officer in each subdistrict and all the local department
representation in the Southern District—police, health, education,
public works, agriculture and even the

The Annual Reports on Palestine and Transjordan describe in detail

all of these aspects of Mandatory Administration.
Of special interest is the treatment of land settlement. In 1930 the
Gaza subdistrict was declared a Land Settlement Area. This should
have opened the way to Jewish settlement. The question of availability
of State Lands for Jewish settlement was raised in 1930 and the

26 Frischwasser-Ra’anan, op. cit., p. .95

.R.C27 Ashbee, Jerusalem ,19201922 p. .3
28 Anglo-American Committee of Inquiry, op. cit.
A Lifetime in Jerusalem ,)1970( p. .83
 THE GAZA STRIP 71

British took it under consideration.*® That no lands were made avail-

able, is clear from the report of the British in their answer to the
Jewish proposal in 1938 to include an area of the Gaza subdistrict
in the partition plans. The Palestine Partition Commission recom-
mended that this area not be assigned to the Jewish state basing its
recommendation on the absence of Jewish In ,1940 after
the MacDonald White Paper of ,1939 the Land Transfer regulations

were promulgated regulating the transfer of lands in certain zones.

Gaza was placed in Zone A, where transfer of lands was prohibited
except to Palestinian Arabs thus effectively sealing off Jewish settle-
ment.3* On the practical side therefore we find the Mandatory author-
ities administering Gaza and far from promoting Jewish settlement in
the area despite the availability of State Lands, at first discouraging
it and later prohibiting it.
It is far from clear how the Mandate affected the question of sove-
reignty. Oppenheim does not answer or even attempt to answer the
question, and notes that widely differing views were held upon the
subject “Where does sovereignty in respect of the mandated areas
Citing authorities worthy of respect, he lists the following

answers:
)i( in the Mandatory;
)ii( in the Mandatory acting with consent of the League;
)iii( in the principal allied powers;
)vi( in the League of Nations;
)v( in the inhabitants of the mandated area but temporarily in
suspense.**
The Mandatory system was a creation of post war agreements, and
the only source of interpretation were the Covenant of the League of
Nations, in particular Article 22 and the various mandates which have
been drawn up in later years. Neither the Covenant nor the other
documents contain any reference to the transfer of mandated territories.
Article 22 of the Covenant specifies that for Type A Mandates (and
Palestine was designated and accepted by Britain as a Type A Man-
date):

30 Annual Report: Palestine and Transjordan .1930

31 Palestine Partition Commission Report October ,1938 para. .238
Foundation, Palestine, p. .137
33 Oppenheim, op. cit., p. .202
72 C. FARHI

“Certain communities formerly belonging to the Turkish Empire

have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to
the rendering of administrative advice and assistance by a Manda-
tory until such time as they are able to stand alone. The wishes
of these communities must be a principle consideration in the
selection of the Mandatory.”

This Article does not provide for self determination by the inhabitants
of the Mandated territories, and he remarked:

“It seems to be a matter of some doubt whether the population

under Mandate have a right of self determination. The assump-
tion... that they have such a right appears to be dictated by
sentimental rather than legal considerations. In law there is no
provision for a plebiscite to be held in the mandated territories
before a transfer can take place. Art. ,22 subsection 4 might
perhaps be responsible for the misinterpretation in that it says
“the wishes of these communities must be a principal consideration
in the selection of the mandatory”. But this provision is no

more than a moral obligation put upon the League before

it distributes mandates at all... There are however still stronger
reasons to support the view that a plebiscite in the mandated
territory would be outside the law. It is left to the discretion of
the mandatory power and the League when a mandate shall
terminate.”

Theoretically consent of the League had to be unanimous.**

The question of sovereignty in relation to Mandatory territories
is beset with many difficulties. Each of the views listed by Oppenheim

can be countered by logical objections. It has been convincingly argued

that sovereignty does not lie with the inhabitants of the areas, and
it can be argued that sovereignty does not lie in the International
Organization that set up the Mandate on the ground that it is
composed of many members who were certainly not “the parties
concerned” in whose favour Turkey renounced sovereignty. As to the
sovereignty of the Mandatory Power, one international lawyer states
flatly that “it is clear that the mere fact that the Mandate to administer

.F34 Honig, “International Law and the Transfer of Mandated Territories”, )1936(
28 J. of Comparative Legislation and International Law .204
 THE GAZA STRIP 73

Palestine had been given to Britain did not convey sovereignty to her.
Indeed it was one of the prime objects of the Mandate system that
the administering authority should not be sovereign.”*> Oppenheim
supports this view by stating: “That Germany and Turkey divested
themselves of all rights of ownership is clear. That the mandatories
had not acquired all of those rights is equally clear... Under this
system these detached territories were not in the ownership of any

Thus sovereignty might be considered to be in abeyance or simply

non-existent.
The lack of intention to turn over the Gaza strip to Egyptian
control and to transfer sovereignty is equally evident in the circum-
stances of the termination of the Mandate as described in the British
White Paper on “Palestine—The Termination of the Mandate”. While
plans at the UN Special Session were still being discussed, Britain
took the position that in the absence of agreement by both Arabs
and Jews, they would not undertake to enforce any UN plan and
that they intended simply to withdraw all British forces by the Ist of
August 194837
The consequent occupation of Gaza by the Egyptians was thus a
simple belligerent occupation which gave rise to no rights of sove-
reignty. As Lauterpacht remarked:

“If then there was no legal warrant for the Arab invasion of
Palestine in 1948 aimed at the destruction of Israel, two conse-

quences follow. First by reason of the illegality of the conduct

no Arab state could rely upon its physical occupation of any part
of Palestine as a valid foundation for filling the sovereignty

vacuum... Egypt was not entitled to assert sovereignty over the

Gaza strip.
Questions of sovereignty are quite independent of Armistice

The Armistice Agreement between Egypt and Israel signed Feb-

ruary ,ht24 1949 plainly states in Article :11

_ Lauterpacht, Jerusalem and the Holy Places ,)1968( p. .13

op. cit., p. .193
Palestine—Termination of the Mandate (British White Paper, May ,15 .)1948
op. cit., p. .45
74 C. FARHI

“No provision of this agreement shall in any way prejudice the

rights, claims and positions of either party hereto in the ultimate
peaceful settlement of the Palestine question”.

And Article )52 provides that:

“The Armistice Demarcation Line is not to be construed in any

sense as a political or territorial boundary and is delineated

without prejudice to rights, claims and positions of either party
to the armistice as regards ultimate settlement of the Palestine
question”’.

The latter Article is not found in this wording in the other

Armistice Agreements. (Compare Article 5 of the Israeli-Syrian Ar-
mistice Agreements of 20 July 1949 and Article )62 of the Armistice
Agreement with the Hashemite Kingdom of Jordan of 3 April ).1949
There has been some speculation as to the possible legal significance
of the absence of this clause in any but the Egyptian-Israeli armistice
agreement: Did it mean that in other agreements the demarcation
line can be assimilated to an international boundary but by impli-
cation not in the instance of the Israeli-Egyptian It seems
that in view of Article 5 of the Israeli-Syrian Agreement and Article
)69 of the Agreement with Jordan, such speculations were un-
founded.

C. THE EGYPTIAN MILITARY OCCUPATION 19481956

AND 19571967

Throughout the entire period of its control of the Gaza Strip since
,1949 Egypt has never made any claim to it as part of her territory.
The early years are marked by some confusion and it was not until
1955 that the Egyptians passed a law trying to clarify the situation,
entitled ““A Law Concerning the Issue of a Fundamental Law for
the Region Placed under the Supervision of the Egyptian Forces in
Palestine”. The title speaks for itself with reference to the Egyptians

own concept of their relation to the region.

In ,1962 a so-called Constitution was proclaimed for Gaza, Article 1
of which states that Gaza Strip is an indivisable part of the land
of Palestine.”

.D39 Brook, Preface to Peace—The U.N. and the Arab-Israel Armistice Agreement
.)1964(
 THE GAZA STRIP 75

The titular government in Gaza might be considered to have been,

as it was in fact, in the hands of the Egyptian military authorities.

The picture is not entirely clear nor are the authorities wholly con-
sistent. One fo them notes that —

“The problem of who shall govern the remnant of Palestine (Gaza

and the West Bank) has never been satisfactorily solved... The
government of the former Mufti of Jerusalem—the All Palestine
Government—has had a tenuous existence. Haj Amin hada falling
out with the Egyptians and moved his apparatus from Cairo to
Beirut while the Egyptians set up an independent government in
Gaza in ,1959 also in trust for the Palestinians.”

Another records the creation of the All Palestine Government

of Gaza:

“An attempt by the Arabs of Palestine to develop momentum

through creation of a government with temporary headquarters in
Gaza did little more than highlight the division within the Arab
League. Haj Amin Husseini (Mufti of Jerusalem) favoured it as

a means of reinstating himself as head of the Palestine movement.

Arab leaders agreed to formation of the government provided that
the Mufti had no part in it... The Cabinet was elected on October
Ist and the Mufti was elected President although opposed by the
Arab League. King Abdullah saw ‘in the Gaza Government a
threat to his own ambitions and flatly refused to recognize it.’
Iraq recognized the Gaza government on October 12th and
Syria and Lebanon followed

Still another authority has pointed out that:

“Though Egyptian representatives at the UN often referred to the

Gaza Strip as ‘Egyptian controlled territory’, Egypt actually never
annexed the Gaza Strip. It was treated as occupied territory provi-
sionally administered by the Egyptian military authorities. Thus in
September 1955 the Cairo Court of Administrative Jurisdiction
states that the Gaza Strip was outside Egyptian territory and that
the Egyptian authorities were exercising a ‘kind of control over
part of the territory of

.W.R40 MacDonald, The League of Arab States ,)1965( p. .87

41 )1949( 3 Middle East Journal .64
,C42 Fischer and F. Krinsky, Middle East in Crisis ,)1959( p. .52
 76 C. FARHI

Egypt maintained after the Armistice the old 1906 Boundary

line between Palestine and Egypt, cutting Rafiah in two. Rafiah was
not united but remained a frontier station. In the southern section
Egyptian law applied. In the northern section of Rafiah Palestinian
Mandate law continued to apply as it did in the whole of the Gaza
Strip, subject to military government regulations introduced by the
Egyptians.
In June ,1948 an order laid down that all courts in the Region should
continue to operate in accordance with the laws, ordinances, orders and
directives already issued. In December ,1949 normal civil courts were
established. Magistrates Courts were to sit in Gaza with power to
sit in Khan Yunis, the District Court was in Gaza, as were a special
court for serious offences and a Supreme Court. “Each of these Courts
shall have the powers prescribed in the Laws of Palestine and in orders
issued by us [the Governor General].”*
The whole civil government of Gaza was formally and in fact under
the direction of the Egyptian Governor General who was the Military
Governor of the area. For example, the Director of Municipal and
Rural Affairs was a local resident, appointed by the Governor General,
who received his instructions from the Governor General. The same
situation seems to have applied to the other departments of government.
There was at all times an Egyptian military force of considerable
numbers of Egyptians in the Strip.
At least one modus vivendi was concluded in the early period -beF(

ruary ,24 ,)1950 following the Armistice between Israel and Egypt:
“With a view to avoiding the possibility of friction between
local inhabitants in certain localities of Gaza and Rafiah... the
undersigned acting on behalf of their respective governments have
agreed to the following provisions.”
The operative part dealt with the area to be patrolled by Israel and
that controlled by Egypt.
Treating Gaza as foreign territory caused immediate economic pro-
blems in the Strip. The movement of persons and goods across the
military frontier from Gaza into Egypt was subject to delay and
difficulties and the burden of high import tariff inherited from the
Mandatory Government was maintained.

43 Gaza Official Gazette, Vol. .1 p. .17

44UN Doc S/1264, 24 Feb. .1950
 THE GAZA STRIP 7

The customs border was strictly guarded until ,1955 and the adverse
balance of payments was a drain on local cash resources. By ,1950
local currency in the Strip had dropped to 7 Egyptian pounds per head
of population or about 13 of the average holding in Egypt. The
shrinking money supply was a serious factor. Unskilled wages dropped
from 30 piastres a day to 10 or ,12 a reduction of two thirds.*
It was only in ,19591960 a full ten years after the armistice, that
the UAR began to plan economic projects, including afforestation, road
building, distribution of agricultural land in the Rafiah area and light
These were accompanied by the political developments
which culminated in the so-called Gaza Constitution. In December
,1959 a Palestine National Union was established by Egypt in an
attempt to organize the inhabitants of the Strip into a transitional
entity. Following a Congress of the PNU it was announced that the
UAR authorities were considering the possibility of holding general
elections to replace appointed
In January ,1960 the first and last elections of the PNU took place
in the Gaza Strip. Suffrage extended to men only, and 334 candidates
out of 935 were elected by 53224 votes. The Egyptian Military Gov-
ernor expressed admiration of the “electoral awareness of the Pales-
tinians” and promised suffrage for women. He said the final objective
of the election was to create a free public opinion and prepare for
the fight for
On the military side an effort was made to form a Palestinian Army
unit. A Palestinian Division in the Gaza Strip had been gradually built

up by the Egyptian Army before ,1956 commanded by Egyptian 8th

Division officers, but it was destroyed in the Sinai Campaign. Reor-
ganized in 1957 as the Palestine Brigade, it made symbolic appear-

ances at Egyptian Army

Thus the stage was set for the “Gaza Constitution” of °.1962 An

45 J, Baster, “Economic Problems in the Gaza Strip”, )1955( 9 Middle East Journal
;323 A. Cohen, Israel and the Arab World ,)1970( p. .55
46 )1960( Middle East Record, (The Palestine Question).
47 )1961( Middle East Record, PNU and Elections, p. .112
48 Ibid., p. .136
49 p. .161
50The Gaza Constitution was published in English in )1963( 17 Middle East
Journal .156
78 C. FARHI

examination of this Constitution is pertinent. The preamble states:

“Palestine is a cherished part which cannot be separated from

the great Arab homeland and its people are free Arabs from
the very midst of the great, free Arab nation.
Britain, the country which occupied Palestine and later was
chosen as the Mandatory Power, laid its imperialistic plans to
erect a strange, inimical being in the middle of the Arab nation,
in order to rend its unity by promising the Jews to establish a
country for them on the relics of Arab Palestine. It included this
promise under the seal of its Mandate and deprived the Arab
people of a national government to represent them and receive
its authority from their will. In the month of August 1922 it
issued a Constitution to serve these aims, which the Arabs refused
and in reaction to which they rose in continuous and bloody
revolutions until Britain handed over the land of Palestine to the
Zionist gangs. Following this, events took place which turned
Palestine into a gaping wound in the Arab being and entity,
causing great pain to every Arab....
Since the United Arab Republic has been helping and aiding
people in the Gaza sector until they achieve their victory, which
will be soon, and in so doing it issued Law No. 255 for ,1955
envisaging the basic system of the Gaza Sector.
And since the requirements of development and the course of
events necessitate the availability of a new constitutional system
which will meet the aims and hopes of the Palestinian people, the
following has been decided: ”

There follow 74 substantive sections of the document providing actually

for complete Egyptian control:
The Governor General is appointed by the President of the United
Arab Republic .trA( .)18 The Executive power is vested in the Gov-

ernor General and an Executive Council of 11 members .trA( ,)15

composed of the Directors of the various Departments and appointed
by the Minister of War of the United Arab Republic .trA( .)24 On
the legislative side, a Legislative Assembly is set up, composed of
the Governor General, the Executive Council, 10 members to be
selected by decree of the Governor General from among properly
qualified Palestinians .trA( .)30 Thus we have a total of 22 members
appointed by the Egyptians, 12 of whom can be Egyptians as there
 THE GAZA STRIP 719

is no provision that the Department Directors must be inhabitants of

the Gaza Strip. An additional 22 members are to be chosen by the
elected members of the local councils of the Palestine National Union
in accordance with rules, conditions and system of election to be
issued by the Governor General .trA( .)30
Despite this stacked Legislative Assembly a number of other provisions

are included to assure that under no circumstances will legislation be

passed which has not been approved by the Governor General. Thus, in

case of a tied vote, the faction which includes the Chairman (the Gov-
ernor General) prevails. Moreover, after a law has been passed it
is to be sent to the Governor General for ratification and if he does
not ratify it, the Legislative Council cannot reconsider it during the
current session but can only take it up again in the following session
and there it must receive a 34 vote of all the members .strA( .)2021
However, to make doubly sure, the Legislative Assembly only meets
when convened by the Governor General .trA( .)38 The latter has
the further power at any time to suspend a session for two months
.trA( .)37 The members of the Legislative Assembly have no right to
interfere in affairs coming within the competence of the Executive
Authority or the Judicial Authority .trA( )45 and therefore do not
have any control or even supervisory or investigatory powers with
respect to the Executive.
Direct control over financial matters was assured by a pro-
vision that the State Audit Department of the U.A.R. should
audit government accounts in the Gaza Strip .trA( .)68 With respect
to the Judicial Authority, the President of the Supreme Court was
to be appointed by the President of the U.A.R. and the other judges
by the U.A.R. Minister of War. The President was always an Egyptian
judge. It is, however, to be noted that the British Mandate Law as
amended and not Egyptian law was to be the local law .trA( .)69
The Egyptians made no claim to Gaza. As one writer has observed:

“There were practically no historical, cultural, racial or other ties

between Egypt and Palestine. To the inhabitants of Syria and
Transjordan, Palestine was part of their own land; to an Egyptian
it was a country as foreign as America is to England. The Arab
inhabitants of Palestine were bound to the inhabitants of Trans-
jordan by common habits of life, and by frequent intercourse

across the artificial and newly created frontiers which had been
0 C. FARHI

erected between them. There was no such common bond except

that of language between Palestinian Arabs and the Egyptians.”

Not only the Egyptians but the rest of the Arab world considered the
Egyptian presence as an occupying presence, either as a welcome
trustee or as an occupying power, depending on the view of the
observer.
Although the Egyptians declared themselves both internally and
internationally as holding the territory in trust for the inhabitants,
they treated the Strip at a certain stage as freely negotiable territory:
During the Anglo-Egyptian negotiations of ,19501951 when they of-
fered Gaza to the British as a military base instead of Suez. “I believe
that within the framework of [Arab-Israeli Armistice]”—declared Mu-
hamed Bey Salah-Al-Din to Sir Ralph Stevenson on August —1950
“we can agree from the political and legislatic standpoints to move
your striking forces to the Gaza Strip without difficulty and without
need of complicating matters with another question which is very
hard for public opinion in Egypt to imagine, viz., concluding peace
with Israel.”
Prime Minister Nahhas Pasha was the first to suggest, in talks with
Field Marshal Slim, that the British establish a base in the Gaza
Strip for mobile units within easy distance of the Suez Canal.” The
British turned down the Egyptian offer.*

D. GAZA: 19561957

It seems appropriate to deal with this interim period in some detail.

Two basic points emerge from the diplomatic wrangling surrounding
the withdrawal of Israeli forces from Gaza. The United States main-
tained a highly legalistic approach to the possible scope of U.S. or
U.N. activity in light of the Armistice Agreement. As Eden notes,
“the United States could not have taken up so legalistic an attitude if
the security of its own continent had been at In the U.N.

Marlowe, History of Modern Egypt ,)1954( p. .328

52 J, Hurwitz, Middle East Dilemma—Background of U.S. Policy ,)1953( p. .100
53 Anthony Eden in his memoirs Full Circle ,)1960( p. 56 states that Gaza was

ruled out by the absence of harbour and of fresh water supplies. Hurwitz, ibid.,
notes that the British Ambassador argued that such a move would be militarily and
politically impossible unless there was peace between Egypt and Israel.
,nedE54 op. cit., p. .572
 THE GAZA STRIP 81

the United States representative stated that with respect to the Gaza
Strip it is the view of the United States that the United Nations’
General Assembly has no authority to require of either Egypt or Israel

a substantial modification of the Armistice Agreement, which as noted,

now gives Egypt the right and responsibility of occupation.®>
In the second place, the United States in effect treated the Israeli
conditions on withdrawal as non-existent. In March of ,1957 those
conditions which included the condition that military and civilian
control would be exclusively by UNEF and that this exclusive control
would be maintained until a peace settlement or a definitive agreement
had been reached on the future of the Gaza Strip—were brushed aside
by Mr. Lodge in his reply:

“The United States also takes note of the declaration made in the
statement of the representative of Israel. We do not consider that
these declarations make Israel’s withdrawal conditional. For the
₪
4

most part the declarations constitute, as we understand it, restate-

ments of what has already been said by the Assembly or by the
Secretary General in his reports, or hopes and expectations which

seem to us not unreasonable in the light of prior actions of the

Assembly.’’5

Events followed each other with great rapidity. Hammarskjéld’s

statement of February 22 had given weight to Israel’s hope that its
position would be taken into account:

“The Secretary General states with confidence that it is the

desire of the Government of Egypt that the takeover of Gaza
from the military and civilian control of Israel... in the first
instance would be exclusively by the UNEF... Furthermore with
reference to the period of transition such other arrangements
with the United Nations may be made as will contribute toward
safeguarding life and property in the

On March ,ht14 two weeks after withdrawal was announced, Mr.

Lloyd, then Foreign Secretary of Great Britain, said in a House of
Commons Debate:

53 Documents on International Affairs, 1957 “Statement by Mr. Lodge, General

Assembly March ,1 ”,1957 Royal Institute of International Affairs
Survey of International Affairs ,19561957 Royal Institute of International Affairs,
.156
?= Documents on International Affairs 1957 (note 55 above), p. .200
2 C. FARHI

“But the latest news is disturbing. It appears that agitators in

the Gaza Strip have been inciting the local population. .. Never-
theless it appeared at one time that the Egyptian government
without consulting the U.N. has declared their intention of taking

over the Gaza civil administration forthwith. They have appointed

a general as the Egyptian administrative director and complained
to the Secretary General that UNEF was exceeding its function. . .
I believe that the latest information which has just reached me,
has not made it quite so clear that it is the intention of the Egyp-
tian Government to take over the administration.”

Questioned by Richard Crossman whether he had any comment to

make on the report that Dr. Bunche had observed that he was perfectly
willing to collaborate in the takeover of the civil administration by
Egypt, Mr. Lloyd replied that Dr. Bunche had categorically denied
that he ever made such statement. Mr. Lloyd summed up the situation
in Gaza as follows:

“The facts about the Gaza Strip seem to me to be these. No

country has legal sovereignty. By the Armistice Agreement of
1949 the Gaza Strip was not demilitarized. Egypt was left in
military occupation. Since then, until October ,1956 Egypt exercised
de facto authority but the provisions of the Armistice Agreement

were of course dictated solely by military considerations and other

matters were excluded from its scope. During the recent hostilities,
Israel captured the area.
The other relevant fact is that from the Gaza Strip there have
taken place over a period of years, what would appear to have
been organized fedayeen raids across the border into Israel. His
Majesty’s Government position is, as we have frequently said,
that we thought Israel should withdraw from the Gaza Strip,
but we hoped that there would emerge a constructive solution.
And the solution which we have favoured has been the placing
of the Strip from the military and civil point of view under some
form of international control...
We believed that the Strip should be made a United Nations
responsibility... that is still the view of His Majesty’s govern-
ment.
 THE GAZA STRIP 83

I am afraid that the position of the United Nations cannot be

stated in such simple terms. Anyone who has tried to study the
various reports and resolutions will agree with me on that point.
In fact, I might also almost say that the first prize seems to be
for ambiguity.”

The developments between 1957 and 1967 did not change the
basic legal facts and the Gaza Strip remained during these years
under Egyptian military government.
 CHAPTER III

THE GOLAN HEIGHTS 19181967

Ya‘akov Meron*

In memory of Yehezkel Twaig, the

beloved Officer for Judicial Affairs,
Headquarters, Israel Defence Forces,
Samaria and Judea.

A. INTRODUCTION

Among the numerous treaties concluded by Syria since its inde-

none concerns Syria’s south-western frontiers where the

Golan Heights are found. Legislative Decree marsiim tasri‘i No. 51
of 27 August ,1964 which established the region as a county -ahum(
faza) of its own, named Quneitra?, indicated that the Golan Heights
have a character different from the rest of Syria. However for any
data about the shaping of the legal status of that region internationally

one must delve into the history of its incorporation into Syria.
Under the Sykes-Picot Agreement concluded on 16 May 1916
the whole of the Golan Heights was to be handed over to the French

as part of the area to be allotted to them after the end of the First
World War. The French were to receive the area north of Palestine
and the northern boundary of Palestine was to be a line from the

* Senior Lecturer in Moslem Law; Adviser on the law of Arab countries, Ministry
of Justice, Jerusalem.
The views expressed in this article are the author’s and are not necessarily
those of any Israeli official authority.
1 Listed in Fuad Shubat, Al-Dalil al-Daim lil-Qawanin
regularly published by the Arab Press and Research Institute, Damascus, .143
2 Syrian Official Gazette No. 39 for ,1964 p. .8031 By Legislative Decree No. ,87
dated 31 October .1964 (Syrian official Gazette 49 ibid, p. )10453 it was provided
that pending the establishment of “the necessary administrative
the official organs which served the county before the establishment would continue
to do so.
Documents on British Foreign Policy ,19191939 First Series Vol. IV ,)1952(

pp. .241250 See also Paul Pic, Syrie et Palestine, (Paris ,)1924 pp. .5658
85
6 Y. MERON

Mediterranean coast, a short distance north of Acre, to a point on

the north-western shore of Lake Tiberias.
The Sykes-Picot line underwent modifications in the Lloyd George-
Clemenceau agreement of December 1918—February *1919 and the
Allenby-Gouraud agreement of December
The temporary line which resulted from the Allenby-Gouraud agree-
ment was never very clear to either of the parties.®
Following the decision taken on 25 April 1920 at San Remo,
vesting in Britain and France the Mandates over Palestine and
Syria respectively,” negotiations were pursued between the British
and the French® culminating in the Franco-British Convention of
23 December °.1920

4 H.F. Frischwasser-Ra’anan, The Frontiers of a Nation, (London ,)1955 pp. -98

.100
5 Documents on British Foreign Policy ,19191939 First Series, Vol. IV, No. ,400
enclosures ,1 ,2 .3 Frischwasser-Ra’anan, op. cit., p. .120
6 “In various maps of those days, which are found in the Public Records Office in
London, I found several versions with considerable differences between them as
to the place and the tracing of this ‘temporary frontier’. Between these British
versions there is a difference which reaches at certain points to 810 kilometers.
I was unable to consult the French versions of the temporary frontier but there
are several indications showing that the French too were not very clear about
its location.” M. Brawer, The Northern Border of Palestine and the Story of its
Determination during the Mandatory Period )1969( (in Hebrew). Idem, Frontiers
of Israel (London .)1958
7 For a brief survey of the major steps leading to the establishment of the French
Mandate in Syria see La Syrie et le Liban sous l’Occupation et le Mandat fran-
cais 19191927 (Berger Laurant Editeurs), pp. .2228
8 These were preceded by:
)a( a British proposal made by Lloyd George on 20 March 1919 to modify the
Sykes-Picot boundary so as to include in Palestine the Jebel Druze area which
is found to the East of the Golan Heights (known in Arabic as the Hauran) :
see Frischwasser-Ra’anan, op. cit., p. ;110
)b( a French claim made in December 1919 to inter alia “the fertile Houran,
the Jebel Druze and the water resources of the Damascus area”: ibid., pp. ,121
Tze
)c( a discussion about inter alia Palestine’s northern border between Mr. Justice
Brandeis and Mr. Balfour on 19 June 1919 (Documents on British Foreign
Policy ,19191939 First Series, Vol. IV, pp. ,12767 and also Frischwasser-
Ra’anan, op. cit., p. )114 as well as a message from President Wilson to the
British Government conveyed in a letter dated 10 February 1920 ,.dibi( p. ;)624
)d( a letter dated 29 June 1920 from Mr. Vansittart to Major Young, wherein the
latter is informed that the French “have now put forward a distinctly less
satisfactory line (though of course it includes Banias and Metullah)”: Docu-
ments on British Foreign Policy ,19191939 First Series, Vol. 13 ,)1963( p. .300
9 Franco-British Convention of 23 December ,1920 Cmd ,1125 British and Foreign
 THE GOLAN HEIGHTS 87

This Franco-British Convention included the northwestern part of

the Golan Heights in Palestine. “From Metullah the boundary was
to run along the track leading to Banias and Quneitra, leaving the
track on the French side of the border. Further south the boundary

was to follow the bed of Wadi Mas‘adiyya and one of its tributaries
to the northern shores of Lake Tiberias, a short distance south-east of
the entry of the Jordan, cut across the lake to Samakh ,)hameZ( leaving
the eastern half of the lake on the French side of the frontier.1°
The Convention of 23 December granted Britain “the right”
to readjust a certain section of the frontier mentioned in the Conven-
tion. However, as far as other sections of the frontier were concerned,
including that section which encompassed the northwestern part of
the Golan Heights, no mention is made of any ”thgir“ of re-adjust-
ment. Quite the contrary, the work of the Commission, which was to
be established under article If of the Convention, was merely “to
trace on the spot the boundary laid down in Article and to -ed“
marcate” it “on the ground”. On the other hand paragraph I of
article V provided for “periodical revision of the Agreement” “as need
arises”’.
The role of the League of Nations under this Convention was limited
to decision in cases of disagreement as to the work of the Commission
and also the preservation in its archives of a copy of the Commission’s
final report.
The appropriateness and possibly the legal validity of the Franco-
British Convention of 20 December 1920 were not self-evident to
Earl Curzon, the then British Foreign Minister. “Article 9 of the
Convention... actually refers to articles in the Mandate” he wrote

on 26 December [A]lwkward questions might be raised in

Parliament and press if the Convention containing these references

were published before the Mandates had been approved or published”’.

“{I]t seems inadvisable to publish a Convention which deals with a

State Papers, Vol. ,13 pp. .35560 League of Nations, Treaty Series, ,1924 pp. 304
et seq. Frischwasser-Ra’anan, op. cit., p. .135
STATE OF, (Historical Survey) in Encyclopedia Judaica, column .312
11 In order to enable the British “to construct a railway in the valley of the Yarmuk”.
In paragraphs 3 and 5 of article V of the Convention these rights are referred to’
as “the right” in the singular but in paragraph 6 in the plural as “the rights”.
12 The expression “to trace in detail” appears also in article I in connection with
the portion of the frontier between Banias and Metullah.
13 Documents on British Forcign Policy ,19131939 First Series, Vol. ,13 p. 425
8 Y. MERON

number of points arising from the conferment of the Mandates.

Please communicate accordingly with French Minister for Foreign

Affairs and suggest that publication of the Convention be suspended
until at any rate it is clear what action Council of the League will
take regarding ’A‘ Mandates”.
These misgivings did not, however, delay greatly the publication of
the signed Convention. Furthermore, the Commission which was to
demarcate the frontier “on the ground” was set up and began its work.

B. THE DETERMINATION OF THE FRONTIER

“The Commission was given the right to make considerable re-

visions of the frontier since the British government still hoped that
France might consent to a local bargain to give Palestine a somewhat
better
During 19211922 the British gave up the area allotted to them
in the Golan Heights in return for an area to the south of Lake
Tiberias. This change was made in order to avoid dividing the lands
of Amir Mahmud el Faour el Fadl, an influential landowner and
sheikh of a bedouin tribe. On the other hand the area to the south
of Lake Tiberias, which reverted to the British, included lands which
belonged to Abbas Effendi who lived in Haifa under British rule.
The frontier was thus changed wholly to Palestine’s
From Banias the frontier turned due south following the hill slopes
just east of the Hula and the Jordan, at some places at a distance of

no more than fifty meters from the river to the point where the Jor-
dan joins Lake Tiberias. On the shore of this Lake the frontier left

a narrow strip, limited to no more than ten meters of territory, to

Palestine. It was only about halfway along the eastern shores of the
Lake that the boundary left the shore and climbed up the steep
mountain slopes of the Golan Heights and ran southward, along the
top of the escarpment to the valley of the Yarmuk near tha spa of
Al-Hamma. Here the boundaries of Syria, Western Palestine and what

was later Transjordan

In the final stage of the Commission’s work “the French demanded
that the boundary should be moved about three-quarters of a mile

14 Frischwasser-Ra’anan, op. cit., p. .137

15 Ibid., p. .138
STATE OF (Historical Survey) in Encyclopedia Judaica column .312
 THE GOLAN HEIGHTS 89

1300( m.) westward, with its extreme north-eastern point near the
1

village of Banias, so as not to cut the main track connecting the Golan
Heights with the Lebanon and the Mediterranean coast. This meant
that the Banias springs, one of the main sources of the Jordan would
pass from the British to the French controlled area. It was agreed to
concede it to the French temporarily and leave the final settlement
in this section to further negotiation”’.17
The final line was submitted in a report by the Commission on 3
February 1922 and signed by the British and French Governments

on 7 March 192318
Meanwhile, on 24 J uly ,1922 the Council of the League of Nations
approved the British Mandate over Palestine and the French Mandate
over Syria and Lebanon.
The preamble of the mandate for Syria and Lebanon" states that
“the Principal Allied Powers have agreed that the territory of Syria
and Lebanon... within such boundaries as may be fixed by the said
Powers, be entrusted to a Mandatory”. Similarly the preamble of the
Mandate for Palestine states that “the Principal Allied Powers have
agreed... to entrust to a Mandatory... the administration of the
territory of Palestine... within such boundaries as may be fixed by
them’’.?0
Both Mandates include a prohibition, in almost identical terms,
against the alienation of any part of the mandated territory.
Article 4 of the Syrian Mandate provided that the “Mandatory
shall be responsible for seeing that no part of the territory of Syria
and Lebanon is ceded or leased or in any way placed under the con-
trol of a foreign Power”.
Article 5 of the Mandate for Palestine provided that the -adnaM“‘
tory shall be responsible for seeing that no Palestine territory shall

17 Ibid., columns .312313 Emphasis added.

18 British and Foreign State Papers, Vol. ,117 part I ,)1923( pp. .292307 League
of Nations, Treaty Series ,)1924( pp. 364 et seq.
19English text reproduced in H.M. Davis, Constitutions, Electoral Laws, Treaties
of States, in the Near and Middle East (2nd Ed. ,)1953 pp. .283290 Emphasis
added.
20 Cited in Z. Blum, Secure Boundaries and Middle East Peace (Jerusalem ,)1971
p. .113 Emphasis added. This text had appeared in article 95 of
Treaty of Sévres of 10 August ,1920 which was never ratified. See Pic, op. cit.,
.9 .5,
00 Y. MERON

be ceded or leased to, or in any way placed under the control of,
the Government of any foreign Power”.
The Mandates were, however, not to come into force for more than

a year after they were approved by the Council of the League of

Nations, for reasons which had nothing to do with the question of the
frontiers.2! Thus the Treaty of Lausanne”? of 24 July 1923 was signed
before the Mandates came into force. Article 16 of this Treaty states:

“Turkey hereby renounces all rights and titles whatsoever over

or respecting the territories situated outside the frontiers laid

down in the present treaty..., the future of these territories and
islands being settled or to be settled by the parties concerned”.

The word ”ybereh“ which we have stressed received its full meaning
in the light of the last words of article :17

“The renunciation by Turkey of all rights and titles over Egypt

and over the Soudan will take effect as from 5 November .”1914

Indeed the Mandatory Powers could hardly dispose of the territories

entrusted to them before Turkey renounced her sovereignty over those
territories.
The Mandates in both Palestine and Syria came into effect on 29
September 192373 and the Permanent Mandates Commission of the
League of Nations began to take an interest in the treaties and con-
ventions signed by the Mandatory Powers on behalf of the mandated
territories. Questioned on this subject by Mr. Gilchrist (Acting Secre-
tary), the French representative, Count Clauzel, replied that “if certain
treaties or conventions had not been registered it was because such

a procedure had been forgotten [sic] or for some other reason”. Pressed
further by the Acting Secretary, another French representative, M. de
Caix, came to the help of Count Clauzel, pointing out that “very
few Conventions had been concluded by Syria. An extradition con-
vention with Palestine was about the only one. At that stage.

21 Pic, op. cit., pp. ,6162 gives two reasons for this delay: objections raised by
Italy and the slow progress made by the Committee on the Holy Places. The
author suggests a third reason which appears to him to have had an influence
namely “panislamic agitation on the northern confines of Syria”.
)1924( 18 AJIL I.
23 Pic, op. cit., p. .62
of Nations, Permanent Mandates Commission, Minutes of the 7th Session
held at Geneva, 1930 October ,1925 p. .25 Emphasis added.
 THE GOLAN HEIGHTS 91

the 1920 Franco-British Convention was forgotten by the French

authorities. It was, however, mentioned three years later by the same
M. de Caix: “A mixed Anglo-French Commission had, in ,1920
only determined on the spot the boundary between the two mandated
territories from the sea to the valley of Yarmouk”’’.?> The British
representative had already in 1924 presented “the frontier between
Syria and Palestine” as “clearly shown” on the maps of Palestine.”
Did the 1920 frontier agreement require the League of Nations’
approval? Such approval would have been superfluous had the fron-
tier agreement merely provided for the determination the spot”
of “the boundary between the two mandated territories”, as claimed
by M. de Caix. On the same day, but with regard to the frontier
between Turkey and Syria, M. de Caix himself observed that “the
mandatory Power was not called upon to reopen a discussion regard-
ing the delimitation of a territory of which it was in charge and of
which it could not abandon any part’.?” However, a more far-reaching
opinion was held by Quincy Wright in :1930 “The Council” of the
League of Nations “has been especially anxious to make it clear that
it is not responsible for the boundaries of mandated territories”,?®
although “the mandatory is responsible for preserving the territorial
integrity of the ‘A mandates’ once their boundaries are fixed by

express provision of the mandates”.?® the Council looks upon the

territorial limits of Mandates as facts its consent is not necessary for
the modification of frontiers, but the practice is to the contrary”.*°
Hence not only a technical frontier agreement dealing with its demar-
cation on the spot, but even the Franco-British Convention of 23
December 1920 did not require League of Nations approval according
to Quincy Wright. In fact, probably in view of the practice which is
“to the contrary”, Quincy Wright took pains to indicate that the

25 Ibid., Minutes of the 13th Session held at Geneva, 1229 June ,1928 p. .176
26 Ibid., Minutes of the 4th Session held at Geneva, 24 June-8 July ,1924 p. .90
27 I[bid., Minutes of the 13th Session, p. .175 M. Boncour asserted that the treaty
in question was merely for the delimitation on the spot of the Angora agreement
of 1921 and did not involve any cession of territory. .L( of NN. Council, March
1926 XXXIX O.J. VII .)522 This conteniion was endorsed by the Mandates
Commission at its 8th session .C.M.P( Min. VIII ,204 X .)192 See Quincy Wright,
Mandates under the League of Nations ,)1930( p. .122
28 Wright, op. cit., p. ,117 note .36
29 Ibid., pp. ,120121 note .46 See p. 89 above.
30 Ibid., p. ,119 note .43
 92 Y. MERON

modification of the boundary between Palestine and Iraq and Syria

by that Convention occurred before the mandates were confirmed.
The same formalistic argument should have sufficed, for Quincy
Wright in ,1930 to absolve the final frontier agreement signed by
England and France on 7 March 1923 from any need of approval
by the League of Nations, since the Mandates came into effect only

on 29 September 192351 However, far from taking such a position,

that writer made it clear that the mandatory’s power to make treaties

or agreements with respect to mandated territory “does not apply to

boundary or other agreements directly affecting the terms of the
Mandate. The Council intimated that it should be given the opportunity
to confirm the agreement, pending in March 1926 between France
and Turkey, defining the boundary of Syria. The exclusive contro!
of the mandatory over foreign relations of the territory, said M. Sjoberg
of Sweden, the rapporteur, ‘do not include power to cede or lease, on its
sole authority, any part, however small of the territory’”’. As shown
above the frontier agreement of 7 March 1923 involved considerable
transfer of territories, including the Golan Heights, and therefore
required League of Nations
In the absence of League of Nations approval, the Zionist leaders,
who “were deeply disappointed at the loss of... Hauran”, i.e. the
Golan Heights, “tried to achieve a peaceful change in the frontier
by settling land in but these attempts were violently opposed
by the French, and especially by General Gouraud, General Weygand
and M. de Jouvenal. Jouvenal later said that he would be willing to

31 See note 23 above.

the discharge of their functions, demarcators are bound by the terms of the
agreement. In some cases they ere, however, allowed discretionary powers to
deviate from a delimited boundary. Disputes may arise about the scope of this power.
For instance, in the Temnle of Preak Vihear Case, a mixed boundary commission

was entrusted with the task to adopt and modify the boundary defined in a treaty.
One of the questions raised was whether the commission had the power to
substantially deviate from the treaty delimitation. ,1962 Pleadings, Oral
Arguments, Documents Vol. IT, p. .326 Surya P. Shamra, International Boundary
Disputes and International Law (Bombay ,)1976 pp. .6667 Besides, ‘“‘[t]here is

a great deal of confusion, both in the work of publicists and the practice of the
states, in relation to the operational meaning and scope of the delimitation” ,.dibi(
p. .)25 For this author’s view on the meaning of delimitation, see ibid., pp. ,29
,36 and 62 et seq. In the Polish-German Boundary Dispute, Poland interprets
”noitatimiled“ in the Potsdam Agreement in the sense of demarcating on the
ground ,.dibi( pp. ,71 ,72 .)73 There is little doubt that this is the meaning of
”noitatimked“ in the context of the 1923 boundary between Syria and Palestine.
 THE GOLAN HEIGHTS 93

allow Jewish settlement near the Euphrates or, indeed, anywhere in

Syria except in the vicinity of the Palestinian frontier, where he
feared Jewish
The international frontier agreement between Syria and Palestine
signed on 7 March 1923 was approved by the Council of the League
of Nations at its 86th Session in on the understanding that
the frontier as delimitated caused no inconvenience to the local
populations, as eleven years of experience since 7 March 1923 showed.

C. THE ARMISTICE REGIME

Syria’s invasion of the newly established State of Israel on 15 May

,1948 put the 1923 frontier to its first military tests. Violating the
international frontier, “Syria succeeded in capturing an Israeli settle-
ment, Mishmar Ha-Yarden, situated within the territory allotted to
the proposed Jewish State in the General Assembly resolution of 29
November ,1947 and remained in control of it until the end of the
armed activities. In addition to Mishmar Ha-Yarden... Syrian forces
held a narrow strip on the eastern shore of Lake Tiberias south
of ‘En Gev, and a very small area adjacent to the north-east

corner of the Syrian-Israel frontier. The last two areas were also
situated within the territory allotted to the Jewish State under the
partitition
The position of the United Nations with regard to the international
frontier of ,1923 following the Syrian invasion in the 1948 war, found
expression during the armistice negotiations between Syria and Israel.
“It is obvious that the international frontier cannot be changed by

an armistice convention” said M. Vigier who presided over the nego-

tiations.** In the draft agreement proposed by Dr. Bunche, the U.N.
mediator, the following provision related to the international frontier:

.5“ )a( Where the Armistice Demarcation Line does not correspond

33 Frischwasser-Ra’anan, op. cit., p. ,139 and reference there.

34 League of Nations, Journal Officiel, XVIe Année, No. .6 Procés-Verbal de la 86éme
session du Conseil, 22 mai ,1935 pp. ,604 .6056 The text of the opinion of the
Permanent Mandates Commission appears among the annexes at p. .663 See also
Société des Nations, Journal Officiel, Actes de la 1Seme Session Ordinaire de
Vassemblée, Procés-Verbal de la Sixiéme Commission, p. .71
Bar-Yaacov, The Israel-Syrian Armistice (Jerusalem ,)1967 p. .36
36 Tbid., p. .42
 4 Y. MERON

to the international boundary between Syria and Palestine,

the area between the Armistice Demarcation Line and
the boundary, pending final territorial settlement between
the Parties, shall be established as a Demilitarized Zone...
)b( The purpose of the Demilitarized Zone shall be to safe-
guard the territorial claims, positions and interests of both
Parties pending final territorial

On 16 June ,1949 Mr. Vigier said that “the aim of the negotiations

was to draft an armistice agreement, leaving aside the question of

territorial settlement’’.*® In his Explanatory Note addressed on 26
June 1949 to the Governments of Israel and Syria respectively, Dr.
Bunche reiterated that, much the same as in the Israeli-Transjordan
Armistice Agreement and in the Egyptian-Israei Agreement, the Demili-
tarized Zone in the Syrian-Israel Armistice Agreement has no bearing

upon “the sovereignty over or the final disposition of the territory

involved” nor did it prejudice the questions of ,noitartsinimda“ juris-
diction, citizenship and sovereignty” of that Major General
Burns, Chief of Staff of the UN Truce Observers, noted that the
Armistice Agreement contained no clause authorizing Syria to consider

any particular area of the Lake of Tiberias as Syrian waters nor were
the Syrians entitled to enter the ten meter strip aiong the northeastern
shore of the Lake.”
The postion of Israel was that the Demilitarized Zone remained
Israeli territory. “In the Israel-Syrian Mixed Armistice Commission and
in the Security Council, the representatives of Israel have indicated
that, in their opinion, the question of sovereignty over the demilitarized

zone was not left in abeyance pending a final settlement. They have
claimed that Israel enjoys sovereign rights over the zone”’.*! “[T]he area
would belong to Israel and not be outside her territory. Israel law would

37 p. .50
38 p. .52
39 [bid., pp. ,56 .58
40 §/3156/Add I, 30 December ,1955 and Bar-Yaacov, op. cit., pp. ,222 .236
41 Report dated 6 January 1955 by the Chief of Staff of the United Nations Truce
Supervision Organization in Palestine in: Security Council, Official Records, Supple-
ment for January-March ,1955 document S/3343, p. .4 “In agreeing to refrain from
introducing its armed forces into the area, Israel was not in any way required to

renounce, nor did it renounce, its full rights within the Zone’: Annex B to the
above report, which is a memorandum dated 27 December 1954 from the Ministry
of Foreign Affairs of Israel.
 THE GOLAN HEIGHTS 95

be applied and the Arab civilians returning to the Zone would be

Israel citizens’’.*?
The General Armistice Agreement of 1949 did not supersede the
1923 Anglo-French Agreement. Since, however, it “prohibited any
crossing of the armistice demarcation line by civilians and made no
exception for fishermen”* there can be little doubt that the Frontier
Agreement was particularly affected. Indeed, Israel was “willing to
consider a renewal of the Anglo-French Agreement of but
such a renewal did never take place till .1967
The position of Syria was clearly stated by Mr. Tarazi, its represen-
tative at the Armistice negotiations, who was later to become the
Syrian representative at the United Nations:

“There is no international border between Israel and Syria. There

was a political border between Syria and Palestine. We have to

sign an armistice agreement not on the basis of the political
border, but on the basis of the armistice

The same position was expressed even more succinctly by another

representative of Syria to the United Nations, Faris Bey el-Khuri, who

was also a veteran Syrian nationalist leader**: Syria, which prior to

the signing of the Armistice Agreement occupied the territory of the
Demilitarized Zone, would insist, when a final peace agreement is con-
cluded, that this territory should be returned to her control. Pending
that final settlement neither Syrian nor Israel sovereignty existed in
the demilitarized “Israel is not entitled to claim any right of
sovereignty over the demilitarized zone. To say that the dimilitarized

42 op. cit., p. .53 On the basis of a letter from the Israel Minister for
Foreign Affairs, the Israel Supreme Court held that a village in the demilitarized
zone is inside the frontiers of Israel, but even independently of this letter the
Supreme Court was of the opinion that “the sovereignty over the demilitarized
zone is vested in Israel because “‘sovereignty is certainly possible even without
authority de facto”. Al-Turani v. Attorney-General )1952( 6 PD ;1145 )1951(
ILR, .164
43 Mr. Comay, Representative of Israel, at the 1006th Meeting of the Security
Council on 9 April ,1962 para. .44
44 para. .45 Emphasis added.
45 Bar-Yaacov, op. cit., p. .47
46 El-Khuri was an intellectual leader of the insurrection against the French in
:1925 See G. Lenczowski, The Middle East in World Affairs, (2nd ed.), pp. ,269
.270
47S/PV ,541 17 April .1951 Bar-Yaacov, op. cit., p. .83
 96 Y. MERON

zone is situated in Israel territory seems to me to be contradicting the

Armistice Agreement”, stated Mr. Tarazi, on 9 April 196248
The Anglo-French Agreement of 7 March 1923 was cited from time
to time by Syrian but rather as an historical source
for ”sthgir“ allegedly grounded in custom.®° In an annex to “Syrian
Observations on the Report submitted to the Security Council by the
Chief of Staff of the United Nations Truce Supervision Organization
S/3343”! Syria presented an extensive legal argumentation in favour
of “positive international servitudes” which were laid down in the
1923 Anglo-French Frontier Agreement and in the Agreement between
Palestine, the Lebanon and Syria to facilitate good neighbourly relations
in connection with frontier questions, concluded by the two Powers
aforesaid on 2 February .1926
Coupled with the solemn statements of policy, Syria displayed consi-
derable state activity beyond the 1923 international frontier.
In December 1953 a Syrian military order drew attention to move-
ments on Lake Tiberias of Israeli fishing boats, guarded by armoured
military boats, at a distance of less than 200 meters from the “Syrian
shore” and directed the Syrian shoee positions to open fire on any
Israeli boat which came closer than 400 meters. Another order, dated
14 March ,1954 from the Syrian Chief of Staff, limited the “territorial
waters of the Syrian shore” to 250 meters from the shore, and fire
was to be opened on Israel military boats approaching closer than
250 meters. An order dated 8 November ,1955 from the Syrian com-
mander of the south-western front, contained instructions concerning
Israeli fishermen, in the Lake of Tiberias. They were not to be pre-
vented from fishing unless they came closer than 250 meters from
the shore.*?
The Syrian commander of the shore outpost at ad-Duga who had
been captured by Israeli army units in December 1955 was interrogated

48 1006th Meeting of the Security Council, para. .16

49 For example at the Mixed Israeli-Syrian Armistice Commission /3343/S( Add I
p. ,17 and also pp. ,9 ,10 ,12 and )15 as well as at the 999th Meeting of the
Security Council, para .40
the report cited above, note ,40 at p. :12 “natural and customary rights to
fish, to draw water...” and Annex A to the same report which is an aide-memoire
dated 15 December 1954 from the Ministry of Foreign Affairs of Syria: “the
customary rights of the riparian Arab civilian population”, para. 48 and .50
were forwarded to the UN Secretary General by Major-General Burns,
Chief of Staff of the Truce Supervision Organization: S/3343 Add I.
52 Add. I, 30 December ,1955 cited in Bar-Yaacov, op. cit., pp. .221222
 THE GOLAN HEIGHTS 97

by a UN military observer. The commander stated that on 10 December

1955 he had fired at an Israel police boat with a bazooka when the
boat was at a distance of 80 meters from the shore; he also admitted
that he had received instructions by telephone from his company
commader to fire at the Israel police boat if it got closer than 200
meters from the shore.™
“Syria has challenged civilian activities and police patrolling along
those parts of the international frontier which delineate the demili-
tarized zone and the ten-meter strip on the eastern shore of Lake
Kinneret. As a result of this policy, she succeeded in extending her
control beyond the international frontier. She exercised jurisdiction
in certain portions of the demilitarized zone and dominated the ten
meter strip in a way which made it inaccessible to Israelis. In the area
of Almagor,*> Syria encroached not only upon the demilitarized zone

on both banks of the Jordan, but also upon Israel territory lying
west of the demilitarized zone”’.*®
Syrian policy denying the validity of the 1923 “political border”
implied a denial of the applicability of Israeli law in areas on the for-

mer Palestinian side of and now Israeli side of this border. Syria thus
maintained that the Palestine Land Development Company “had no
right in law justifying expropriation of Arab lands and no executive

power to compel the landowners to accept the execution of the Hula

project on their
The same Syrian policy also threw light on defects found in the

53 Bar-Yaacov, op. cit., p. .221 For the situation in February, March and April ,1966
which was essentially the same, see ibid., p. .236
54 Writing in 1966 Bar-Ya’acov .po( cit., p. )236 states “Syrian army positions are
in full control of the ten-meter strip; the troops manning them prevent by force
the access of Israelis to the strip and abduct Israeli civilians who approach the
strip from the lake”.

. land situated in Israel territory west of the central demilitarized zone”, which
was invaded by a large Syrian force in ,1951 “had for a number of years been
subjected to Syrian military infiltration and to a certain extent, Arab cultivation”.
,suhT“ on 25 May ,1963 an Israel complaint stated: ‘Lands situated in Israel, west
of a line between approximately MR 2084225819 and MR ,2087026000 are
being cultivated by Syrians who crossed both the international boundary and the
western limits of the demilitarized zone’” ,.dibi( p. ,200 .)216 “Arab farming
in any part of the demilitarized zone means a corresponding extension of Syrian
control west of the international frontier” ,.dibi( p. .)210
56 Ibid., p. .259 Emphasis added.
57 Ibid., p. .71 In fact Israel never pretended to expropriate any “Arab lands’’ in the
demilitarized zone.
98 Y. MERON

1923 international frontier. “During his visit to the Middle East in

January 1959 Mr. Hammerskjéld proposed that the whole of the
armistice demarcation line and of the international frontier be surveyed
and marked on the This was again requested by Israel on
24 June ,1963 with regard to the Almagor and on 24 August
,1963 in a report to the UN Secretary General, Lieutenant-General
Bull, the Chief of Staff of the U.N. Truce Observers, “drew attention
to the necessity for marking the armistice demarcation line and the
former international frontier, where the armistice demarcation line
follows the boundary line. In many cases, he stated, there were doubts

as to the location of the line, and this had been and remained a source
of incidents”. The recommendations of Lieutenant-General Bull were
upheld by most members of the Security Council. An opposing
draft resolution presented by Morocco, but most probably formulated
with the active participation of the Syrian representative, made no
reference to any survey of the armistice demarcation line and the inter-
national frontier.®t Syria objected to the marking of the whole inter-
national frontier “since such marking might be taken as recognition

on her part that the line indicating the old mandatory frontier represents
the present frontier between Israel and Syria. Syria has firmly denied
the existence of an international frontier between herself and Israel”.
“Syria has been interested in the marking of the armistice demarcation
line where it delimits the western limits of the demilitarized zone, in
order to throw doubts on the inclusion of the zone within Israel

In addition to the formal defects in its demarcation, the 1923 line

suffered also from inherent defects. Syrian positions dominated almost
all the disputed fields. Writing in ,1966 Bar-Ya‘acov states: “Along
the whole frontier of about seventy-six kilometers, with the exception
of the area of Almagor, Syrian positions are entrenched on the top of

a series of high ridges overlooking the Israel settlements and the land
cultivated by them. These positions are, on the average 460 meters
higher than the settlements and the soldiers stationed there are able
at will to shoot at Israeli farmers without fear of any effective counter-
58 p. .244
59 pp. ,200204 based on S/5401, 24 August ,1963 Annex II.
60 [bid., p. ,255 based on S/PV ,1165 26 November ,1964 and S/PV ,1179 17 De-
cember .1964
61 [bid., p. .257
62 op. cit., p. .244 See also p. .288
 THE GOLAN HEIGHTS 99

action. In the southern demilitarized zone, for instance the difference

im height between the Syrian positions in Upper Tawafiq and the
settlements of Ma‘agan, Tel Qazir and Ha-On is some 500 meters in

2 range of one to one and a half kilometers. Only a very drastic military
operation on the part of Israel ground troops or air force could over-
come the topographical advantage which Syrians enjoy in practically
the whole of the frontier
The continued Syrian disavowals of the 1923 international frontier,
combined with the claim for future sovereignty over the demilitarized
zones contiguous to the frontier, conferred upon Syrian encroachments
on this frontier the dimension of a display of state activity intended
to amount to actual effective control.“* Whether this achieved the
desired legal effect, or whether Syrian activities were no more than

a series of violations of a legally binding boundary, as both Israel®

pp. .183184 The difference in altitude of the Golan Heights and the Hula
Valley respectively is about 3000 feet. The demilitarized zones were “a source of
constant friction” and “largely contributed to the setting in motion of the chain
of events which in June 1967 led to large-scale conflagration now known as the
Six-Day War”: Blum, op. cit., pp. ,69 ,94 .95
cannot be exercised in fact at every moment on every point of
a territory” (Judge Huber in )1928( 22 AJIL ,867 .)877 The International Court
in the East Greenland case )1921( PCIJ. Ser A/B No. )53 “traced the exercise of
sovereignty through successive periods until the critical date when Norway sought
to annex the territory”. “A display of sovereignty at irregular and comparatively
long intervals was held sufficient for effective occupation both in the Island of
Palmas and Eastern Greenland cases”: C.H.M. Waldock, “Disputed Sovereignty
in the Falkland Island Dependencies” )1948( 22 BYBIL, ,319 ,321 .337
basic conditions of acquisitive prescription are two according to Verykios:
)a( “Le silence du veritable souverain, pendant un certain laps de temps assez
long pour légitimer la possession du nouvel acquéreur”; )b( “L’exercice effectif,
continu et sans lacune de la souveraineté territoriale”. ,soikyreV( La Prescription

en droit international public ,)1934( p. .75 D.H.N. Johnson, “Acquisitive Prescrip-

tion in International Law” in )1950( 27 BYBIL ,332 348 upholds this formulation

as identical to that made by Huber albeit less explicitly, in the Island of Palmas
case. As for the peaceful possession necessary for the formation of acquisitive
prescription, Johnson .p( )346 cites Faucille étiarT( de droit international public,
vol. I, part. ,2 p. )761 who argues that the possession of Alsace-Lorraine by
Germany after 1871 “was not sufficiently peaceful to allow prescription to operate”.
Moreover .p( )345 “in the Chamizal Arbitration, the Commissioners insisted
that possession maintained in the teeth of constant opposition did not amount
to prescription. Display of authority by one party, acquiescence in that display
by the other party—those are the sine qua non of acquisitive prescription. The
principle that the possession must be peaceful is, in fact, scarcely in doubt.”
The Syrian ”noissessop“ of the demilitarized zones was certainly not peaceful,
because Israel never acquiesced in it.
 100 Y. MERON

and the UN® saw it throughout the years ,19491967 it still remains a
fact that during those 18 years the 1923 frontier line did not play the
role of an international In view of this history the question

66 The Minister for Foreign Affairs of Syria in the observations he made on the
report, dated 6 January ,1955 of the Chief of Staff of the U.N. Truce Supervision
Organization, pointed out that “the Mixed Armistice Commission has implicitly
admitted that the ten-meter strip (on the northeastern shore of Lake Tiberias) is
part of Israel territory, and that Israel has consequently inherited the Palestinian
territory delineated by the international boundary as defined in the said Franco-
British Agreement of 7 March ...1923 this is the first time in its existence that
the Mixed Armistice Commission has made such a gross error with regard to the
territorial question” 3343/S( Add I p. .)13
67 Two opposing theories of boundaries of, respectively, Sir Thomas Holdich and
Professor L.W. Lyde are too well known. The former who had actual and long
experience in boundary demarcation accorded prominence to the defensive and
military conception of the function of boundaries. Fortified by the conviction that
signs of international good-will are not frequent enough to warrant boundary
fixing that “would lead to the mingling together of the human fringes of the
nations”, Holdich contested Lyde’s view that boundaries should be placed where
population is dense and where people are forced to meet one another. Man being
“a fighting animal”, said Holdich, “he must be prevented from physical interference
with his neighbour by physical means... A boundary must be a barrier.” Of
all the barriers, he thought, mountains were the best. He was particularly satisfied
with [the] Pyrenees and the Alps, the Andes and the Himalayas. Failing high moun-
tains, he recommended common divides and water partings, whose defensive value is
also questionable. Deserts, swamps, forests and high mountains have of course
contributed their barrier character to national defense, nevertheless, nature alone
has nowhere created an impossible barrier.
Professor Lyde brought to bear upon the subject his wide knowledge of the
historical, racial, linguistic, and economic relations of human groups. He re-
proached Sir Holdich for setting forth a purely military doctrine of boundaries,
as if war were the normal state of man. In his view, a boundary must be an
international feature, a promoter in peace and barrier in war. Civilization is
“progress in the art of living together,” he added. He was of the firm view that

a boundary which encourages “a maximum of peaceful tendencies” and offers

a barrier as good as a mountain range is the navigable river. River boundaries
also favour cultural and linguistic assimilation and the incoming of outside ideas
and of international tendencies.

“The above two theories manifest divergent alternatives. On the one hand,
it has been told that nations are not trustworthy and, therefore, they should
have defensible borders. As such defences are hard to find, they must be
supplemented by artificial constructions and armies. On the other hand,
nations are expected to live in peace across the waters of a river. Actual
practice of boundary-making, subsequent to the times these theories were
devised, has proved that, their demerits aside, they both have some value. It
will be incorrect to assume that international ethics will be permanently so
low that defensive boundaries will always be essential to safety against
attack. On the other hand, boundary makers do in fact draw boundaries on
 THE GOLAN HEIGHTS 101

begs itself whether there are any compelling reasons for the mainte-

mance in the future of the line delineated in .19221923

D. PROSPECTS

A major consideration which in 19221923 led to the delineation

of the frontier in a way which excluded the Golan Heights from Pales-
tine militates since 1952 in favour of its inclusion in Israel. This
consideration was based upon data relating to private ownership of
land. The force of this consideration was admitted by the Syrian
Government when in 1951 it founded its opposition to Israel’s initiative
im draining the swamps of the Hula on the private ownership of adjacent
lands by individual Arabs in the demilitarized zone who, according
to the Syrian Government “were strongly opposed to the work and...
would not accept compensation”.®
The 1923 frontier between Syria and Palestine was drawn in ignorance
of the fact that considerable stretches of land to the east of that line
belonged to Jews. According to authentic documentary sources seen
by the present writer, the main Jewish landowner was PICA (the
Palestine Jewish Colonization Association), owning some 80000 du-
nams* in the villages of Jilin, Kawkab Oibliyya, Muzra‘a and Sakhem,
in the subdistrict of Dra‘a, and in the villages of Nafa‘a (which is to
the north of Sakhem al-Jawlan), Beit Akkar and Kawkab Shamaliyya
in the subdistrict of Some of these properties, notably in 6
village of Jilin, were originally acquired by Agudath Akhim, a Jewish
organization in Russia, which had also erected a number of buildings

defensible lines, as far as possible. Similarly, boundaries are not deliberately,

and always, placed where people meet; nevertheless, considerations of
ethnic frontier” suggested by Professor Lyde did play an important part in
delimitation of international boundaries in post-World War periods” (emphasis
added) ,armahS( pp. .)3839
During the two world wars or in their aftermath, the “publicists were mainly
concerned with the nature of boundaries in terms of their being good or bad
from the perspective of military defence” “...during the period ending with
World War II the emphasis had been completely shifted from the criteria by
which a boundary was drawn to the functions it performed”. ,.dibi( pp. .)2223
65 Bar-Yaacov, op. cit., p. .71 In fact it was only after they were told by the
Syrian Government to refrain from negotiating for compensation that they did so.
629A dunam consists of 1600 square arshins = 9393 square meters: See Jones W.
Redhouse, A Turkish and English Lexicon (Constantinople )1921 p. .b928
70 Besides, nearer to Damascus, PICA owns land in Bousta in the subdistrict of
Azra.
102 Y. MERON

near the village of Nafa‘a. Later the properties at Jilin were transferred
to PICA. The initiative for the acquisition of land in Sakhem al-
Jawlan came from two associations, one called Shavey Tzion in New
York whose aim was to establish a settlement called in 1895 Tiferet
Binyamin™ and the other founded in Roumania with the aim of
establishing a settlement at Tel-Amidun. The transfer of the ownership
to PICA occurred most probably as a result of the order issued by the
Ottoman authorities in 1896 and put into effect in ,1897 banishing
Jewish settlers who were Russian or Roumanian nationals.” Besides
PICA’s landholding one Jewish settlement called Bnei Yehuda man-
aged, however, to survive the official Ottoman persecutions, probably
because its settlers were Ottoman subjects, indigenous Jews from
Safad. Their settlement in the Golan had been facilitated, and perhaps

even instigated, by the Algerian Jew Shmuel Abu who had collaborated
with the leader and hero of the Algerian resistance against the
French occupation, Abd el-Oader. Taken prisoner by the French in
1847 Abd el-Qader was released in 1853 and settled in Damascus.
Several thousand Algerians followed him to Syria. A part of them settled
in the vicinity of Lake Tiberias. Shmuel Abu who had been expelled
from Algeria by the French even earlier was by that time living in
Safad, the capital of Galilee. Relations between Abd el-Qader and
Shmuel Abu were renewed and maintained also by the descendants
of the two persons. It was through these contacts that Jews first re-
oriented themselves towards the Golan Heights,”* which were densely
settled by Jews during the Second Temple period and for hundreds
of years thereafter.
In 1887 members of Bnei Yehuda had bought a third of the lands
of the village Bir Shaqum, and later, round about ,18921893 exer-
cising a right of preemption, acquired the major part of the lands of
that village. According to one source,“ in 1899 approximately the
lands were registered in the name of one Goldman. However, the
present writer has seen Ottoman title deeds, relating to thousands
of dunams, registered in the names of other Jewish owners. Jews
attempted settlement also in 1908 in the Bet Zayyada )ahyatuB-la(

71 Elhanan Oren, Hibbat Tsion bi-Britania 18781898 ,)1974( p. .115

72 Ibid., p. .190
73 Y. HaRozen, Hazon Ha-Hitnahalut Ba-Galil ,)1971( pp. ,236237 246 note .6
.M74 Neustadt, Ha-Golan, (Maarakhot Publication, ,)1969 p. .151
 THE GOLAN HEIGHTS 103

Most of the remaining Jewish settlers fled from Bir Shaqum

aiter the murder of a Jewish family there during the mid-twenties.
Nevertheless, during the land settlement activities in the Golan in 1944

even owners who did not live on the spot took care to have new Syrian
title deeds issued to them. In some cases the land settlement gave
rise to litigation against trespassers, which was still pending in ,1948
when Syria lauched its war against Israel.
Admittedly the land owned by Jews in the Golan Heights may not
amount to the majority of the arable land in that region but account
must be taken thereof. Syrian Legislative Decree (Marsiim Tashri‘i)
No. 189 of 1 April ,1952 “Conditions for ownership by non-Syrians of
immovable as amended by the Legislative Decree No. 155
of 15 November denies foreigners the right to own immovable
property in the countryside and requires them to obtain a permit for
the acquisition of such property in urban centres. Outside urban centres
immovable property already owned by foreigners cannot devolve by

way of succession upon their heirs who are entitled only to compen-
sation from the Directorate of the State Lands (Idarat Amlak al-Dawla).
On the other hand, disqualifications and restrictions of this kind are
unknown in Israel, where private ownership both by nationals and by
foreigners is fully respected. All this is to say that annexation of the
Golan Heights by Syria extinguishes property rights acquired by
foreigners, whilst inclusion of the region in Israel provides protection
for all acquired rights in land.
Another factor which was actually ignored in the early twenties’®
and which later greatly facilitated tension and friction along that
frontier is the total disregard of strategic considerations by those
who delineated it.
No doubt “‘it is hard to find a mutually acceptable strategic boundary

™ See “Modern period” in RAMAT HA-GOLAN in Encylopaedia Judaica, Vol. ,13

column .1534
76 Syrian Official Gazette No. 19 of 3 April ,1952 pp. .16041605
Ibid., No. 68 of 27 November ,1952 pp. .49364937
the course of consultations within the British Foreign Office in view of the
Anglo-French conference which was about to be held on 23 December 1923 a
British expert remarked: “it is difficult to discuss a frontier with the French on
purely military grounds when the hostilities which are to test the frontier’s
efficacy must almost certainly be between France and Great Britain”: Frischwasser-
Ra’anan, op. cit., p. .123 See also pp. .144145 Indeed the frontier was finally
determined on grounds of private land ownership and irrigation plans.
 4 Y. MERON

between unfriendly states, even though natural barriers -nhoJ“

son® cites authorities to show that a boundary along a mountain
crest favours the attackers as much as, if not more than, the de-
fender”.® Yet such a boundary is certainly more equitable and prefer-
able than an arbitrary line which favours one side only.®? As manifestly
shown by its history throughout the years ,19481967 the 1923 fron-
tier was such an arbitrary line.
The history of the Golan Heights, both in modern as well as in ancient
times reveals the regional links with the west of it.
The Druzes, who are now the main element of the indigenous popu-
lation in the Golan Heights, have a long tradition of recalcitrance
towards Damascus. They resisted the demand made by Ibrahim Pasha
in 1837 for “{T]he wheat growing areas of the Houran

were closely tied to Palestine, where Haifa had been their main port
of export since the days of the Hejaz railway”.** After the First World
War the French Authorities kept the main concentration of Druzes in
Jebel Druze as a district ,”etats“ which witnessed the 1925 insurrection.
Jebel Druze outside Syria” according to the first constitution
granted to Syria by the French, on 30 May ,1930 and though the Franco-
Syrian Treaty of 9 September ,1936 which was never ratified by France,
incorporated the Druze district into Syria according to the wishes of
the Syrian nationalists who yearned for the inclusion of the whole
of Palestine according to their “Greater Syria” plan, yet the admini-
strative autonomy of that Druze district was expressly provided
Throughout the period of the French Mandate in Syria the flow of
”inaruoH“ immigrants and infiltrators from the Golan Heights into
Palestine never stopped. Just three years before Syria lost its control

.B.§79 Jones, Boundary-Making, A handbook for Statesmen, Treaty Editors and

Boundary Commissioners (Washington ,)1945 p. .15
80 Johnson, “The Role of Political Boundaries”, )1917( Geographical Review .209210
81 Jones, op. cit., p. .15
82 “Assuming that the primary object in defining a frontier is to set up a defensive
partition between continguous States which shall prevent mutual trespass, or illegal
expansion into either territory, the actual boundary is designed either to settle
immediate disputes, or, in the case of a conquered territory, it is to prevent future
complications of an aggressive nature’: H. Holdich, Political Frontiers and
Boundary-Making, ,)1916( p. ,128 cited in S.W. Boggs, International Boundaries
,)1940( pp. .1112
83 A.L. Tibawi, A Modern History of Syria ,)1969( p. .79
84 Frischwasser-Ra’anan, op. cit., p. .145
85 Lenczowski, op. cit., pp. .270271272
 THE GOLAN HEIGHTS 105

over the Golan Heights in ,1967 she recognized the region’s distinctive
character by constituting it a county )azafdhum( on its own. After
the Six Days War the Israeli authorities in the Golan Heights
established there a Religious Court for the which started
to function in November 197287 This Court is constituted under
provisions essentially similar to those of the Israeli 1962 Druze Relig-
ious Courts The Court applies the Israeli law of personal
status to Druzes, which is in fact an adaptation of a like law promul-
gated in 1948 in
Owing to the durability of the basalt stone, which is characteristic
of the area, the Golan abounds with remains of ancient synagogues,
Hebrew inscriptions and houses. These attest to the existence of a dense
Jewish population from the time of Herod onwards. The first seat of
his grandson, Agrippa I,® was there. In 39 C.E. Agrippa I was granted
Galilee and in 41 C.E. also Samaria and Judea, to become Israel’s most
popular and beloved king at the time of the Second Temple. The
latter’s son, Agrippa II, also started his royal career in the Golan,
and joining the Romans during the Jewish revolt against them, he

was slightly wounded near Gamala.®*! This town in the Golan Heights
is frequently mentioned by Josephus Flavius, who commanded the
Jewish revolt in the Despite changes of fortune the Jewish
population in the Golan Heights “survived more than 600 years
down to the Arab conquest”, and even later, under the Arabs “a

86 Order concerning the Establishment of Druze Religious Courts, No. ,16 CPO of
1 February ,1973 pp. .11571160
87 Nissim Dana, The Druze, Community and Tradition, Ministry of Religious Affairs,
Department of Druze Affairs (Jerusalem ,)1974 p. .96
8817 Laws of the State of Israel, .2732 No account seems to have been taken of
the Syrian Qanin al-Mahakim al Madhhabiyya lit-Taifa al-Darziyya (The Religious
Courts for the Druse Community Law) of 30 January ,1945 because under the
1961 Syrian Law of the Judiciary (Syrian Official Gazette No. 12 of 1961 pp.
)13241348 there is only one Druze Religious Court in Syria (section 35 of the
Law), whose jurisdiction is limited to the province of Suweida (Schedule 6 of
the same Law, p. .)1346 The Druze Court of Appeals “remains abolished” under
section )353 of that Syrian Law. According to local Druzes, they were under Syrian
tule subjected in matters of personal status to the jurisdiction of the Moslem
Court at Quneitra, Nissim Dana, op. cit., p. .59
83 Ibid., p. .27
% Encyclopaedia Judaica, Vol. ,2 columns .415416417
Encyclopaedia Judaica, Vol. ,2 columns .417418
“Flavius Josephe, Autobiographie texte etabli et traduit par André Pelletier
Edition “Les Belles Lettres” ,)1953( pp. ,811 65 et seq., ,5861 ,114 .117
106 Y. MERON

Jewish community lived at Yehuddiyya Jewish”) up

to the 13th century and Jewish travellers of the Middle Ages used to
visit the local It was only in our own days that the
present Syrian State changed the name of Yehuddiyya into Arabiyya,
aspiring to erase thereby the Jewish imprint upon the Golan Heights.
Several Arab and Jewish writers lamented the separation of the
Golan from Palestine. Hourani writes: ‘The delimitation [of the
frontier] was in some ways arbitrary. There was no good reason,
economic or ethnic for the inclusion of the Hula district in Palestine,
for the separation of the Hauran and Jebel Druze from northern
Similarly, Frischwasser-Ra‘anan writes: “From the de-
fensive, historic and geographic points of view” the frontier from
Banias to El-Hamma “was meaningless”.® Brawer adds “the directors
of the British policy did not foresee that defence problems might
arise along the frontier. Nor did they see the weak points in fixing
sections of border of a formalistic character [“A line on the shore
parallel to and at 10 meters from the edge of Lake Tiberias”,
meters east of the eastern branch of the Jordan”], in establishing
the location of the frontier on unstable elements such as “the last
houses of the village” (as it was at the time of the demarcation of
the frontier), certain buildings, ruins and even trees, and particularly
those cairns, destined to mark the frontier which can easily be re-
moved or moved from their place. Thus, after a short period, doubts
began to arise as to the exact line of the frontier. The Mixed Israeli-
Syrian Armistice Commission, when it functioned, had to deal with
frequent disputes relating to the right location of the frontier, which

were caused by these

93 RAMAT HA GOLAN, in Encyclopaedia Judaica, Vol. ,13 p. .1533 See also. J.S.
Buckingham, Travels in Palestine through Bashan and Gilaad, East of the River
Jordan, including a visit to the cities of Geraza and Gamala in the Decapolis,
London, Longman, Hurst, Rees, Orme and Brown, .1821
E.G. Rey, Voyage dans le Haouran et aux bords de la Mer Morte exécuté pen-
dant les années 1857 et ,1858 Paris .1861
94A H. Hourani, Syria and Lebanon, A Political Essay ,)1946( p. .56 Emphasis
added.
95 Op. cit., p. .144
.M96 Brawer, Gevul ha-Tsafon shel Eretz Yisrael u-Farashat bi-Tekufat
ha-Mandat, ,)1969( p. .9
 THE GOLAN HEIGHTS 107

The hope may be expressed that there will be no recurrence of a

situation accompanied by these unnecessary hardships and

87 Post Scriptum: On 14 December 1981 the Knesset adopted the Ramat Ha-Golan
Law according to which the law, jurisdiction and administration of Israel shall
apply as from the above date to the area of the Golan Heights as delineated in
a schedule to the law which corresponds to the area formerly under Israeli military
government.
 THE GOLAN: PAST AND PRESENT

| | SEA OF GALILEE

LEGEND:

Site of Jewish habitation in Biblical times

@ Site of Jewish habitation today

& Site of Druze habitation todey

zone

a Road
 CHAPTER IV

THE POWER OF SUPERVISION OF THE HIGH COURT

OF JUSTICE OVER MILITARY GOVERNMENT

Eli Nathan*

A. INTRODUCTION

Under international law, an Occupying Power, its organs and troops

are not subject to the jurisdiction of the indigenous courts sitting
in the occupied territory:

“It can be stated definitely that the indigenous courts cannot

be used by the inhabitants of an occupied territory to sue the
occupant, even in the case of contracts entered into between such
inhabitants and the occupation authorities. Owing to his military

supremacy and his alien character, an occupant is not subject to

the laws or to the courts of the occupied enemy state, nor have
these courts jurisdiction over members of the occupying forces”.

Equally under international law, the authority of the commanding

officer in charge of occupied or administered territory is complete and
is limited only by the prohibitory rules of the laws of war.?
Thus section 3 of Proclamation No. 2 of 7 June ,1967 relating to

* Judge of the District Court of Jerusalem. Former Senior Assistant State Attorney
and Head of Department of International Affairs in the State Attorney’s Office.
Legal Adviser and Delegate at international conferences and negotiations.
The views expressed in this article are the author’s and are not necessarily
those of any Israeli official authority.
1 G. von Glahn, The Occupation of Enemy Territory ,)1967( p. .108
2 Cf. M. Greenspan, The Modern Law of Land Warfare ,)1959( p. ;254 see Fraenkel,
Military Occupation and the Rule of Law ,)1944( pp. ,23 ,171 ,207 for the im-
munity of the Occupation Powers from the jurisdiction of the local courts during
the Occupation of the Rhineland after the First World War and the review by
these courts of the legitimacy of occupation measures when the question arose
collaterally in cases involving nationals of the occupied territory; Yon Glahn,
op. cit., p. .265
109
 110 E. NATHAN

Judea and Samaria,? vested in the Military Commander of the area

all powers of government, legislation, appointment and administration
in regard thereto or its inhabitants.
In the absence, however, of a right of recourse to a court in Israel,
the inhabitants of the administered territories would have no remedy
whatever to challenge the legislative or executive acts of the Comman-
der and his executive organs. The result could be quite unsatisfactory,
since it is obvious that powers of such almost unrestricted character
afford opportunities for
It is interesting that no precedent can be found for the court of

any state in occupation of enemy territory or exercising military

government outside its own boundaries ever having entertained an
action against the authority administering such territory or against

any organ of that authority in regard to its administration.®

The jurisdiction of the Israeli Supreme Court sitting as a High Court
of Justice to grant relief in the interests of justice, to issue orders in
the nature of habeas corpus and orders to state or other public author-
ities to do or refrain from doing any acts and to exercise supervisory
jurisdiction over tribunals and persons exercising judicial or quasi-
judicial functions is set out in section 7 of the Courts Law, .1957
This jurisdiction has its origin in Article 43 of the Palestine Order-in-
Council® and section 7 of the Mandatory Courts Ordinance, ’.1940
These enactments were based on the prerogative writs of habeas

corpus, mandamus, certiorari and prohibition issued in England, but

it has been held both by the Palestine Supreme Court under the Man-
date and by the Israeli Supreme Court that this jurisdiction is in no

way co-extensive with the parallel jurisdiction of the English High

Court. Accordingly the Supreme Court has never regarded itself guided
by English precedents in this field.®
In the course of the 30 or more years which have elapsed since

3 Proclamation Concerning Law and Administration (Judea and Samaria) .oN( ,)2
,1967 G.P. & O. (Judea and Samaria), Vol. I, p. .3
4 Cf. Mc Nair and Watts, The Legal Effects of War (4th ed. ,)1966 p. .371
5 Cf. F. Morgenstern, “Validity of the Acts of the Belligerent Occupant” )1951(
BYIL ,28 p. ,291 note ,1 where the author expresses the opinion that the
organs of the occupant may lack the power to scrutinize his orders in the
light of international law, relying on a decision of the High Court of Burma
in the case of Chan Taik v. Ariff Norséjee Peoply )1948( SCR .454
6 Drayton, Laws of Palestine ,)1934( Vol. III, .2569
7 )1940( Palestine Gazette No. ,1032 Suppl. I, .143
8 Cf. Trodler Elections Officer )1963( 17 PD ,2503 ,2513 .2514
 SUPERVISION BY HIGH COURT OF JUSTICE 111

,1948 the Israeli Supreme Court has become a fortress defending the
rights of the individual against unlawful and improper interference

on the part of the executive and maintaining the rule of law. As the
Supreme Court (per Berinson J.) put it in Meron v. Minister of La-
“In the last resort this Court is the most secure and objective
bastion which the citizen may have in his conflict with the adminis-
tration”’.
In this enquiry, I shall deal with the question whether the Supreme
Court has jurisdiction to entertain petitions against the authorities in
charge of the Administered Territories both from the point of view of
international law and from the point of view of internal law in respect
of the matters for which the Court is authorised to grant relief under
section 7 of the Courts Law. If and to the extent to which the answer
to this question will be affirmative, I shall examine both the theory and
existing practice as to the scope of the Court’s power to review the
legislative, executive and judicial acts of the authorities in the Admin-
istered Territories.

B. IS THE EXERCISE OF JURISDICTION CONTRARY TO

INTERNATIONAL LAW?

The question whether the exercise of jurisdiction by the Supreme

Court over the Military Commander of the Administered Territories
(or his superiors, the Chief of Staff of the IDF and the Minister of
Defence) infringes any rule of international law, is not likely to arise
in practice before the Court, since it derives its jurisdiction from statute
.e.i( the Courts Law) and not from international law. If this jurisdiction
is clearly established under the provisions of the Law, the plea that
its exercise runs counter to a rule of international law will not be
entertained. Moreover the Supreme Court (following English precedent)
has held that an Israeli court will interpret an Israeli statute, in
accordance with the principles of public international law, unless other-
wise
Further, such exercise of jurisdiction in the Administered Territories
does not infringe any rule of international law, whether customary or

9 )1970( 24 PD ,)1( ,337 ,362 .363

10 Helou v. Government of Israel )1973( 27 PD )2( ,169 177 referring in parti-
cular to Steinberg v. Attorney-General )1951( 5 PD ,1061 ,1065 1066 and
Stampfer vy. Attorney-General )1956( 10 PD ,5 .17
 112 NATHAN

conventional. In exercising such jurisdiction, the Court is not subjecting

a resident of the Administered Territories to its own jurisdiction against

his will, a jurisdiction which it would not appear to but it
is generally a resident who himself invokes the jurisdiction and seeks

a remedy.
In conformity with principles of public international law, section
1 of the Courts Law provides that the jurisdiction of the Supreme
Court extends to the entire territory of the State. The Administered
Territories do not form part of the territory of the State!2 but in
entertaining a petition against the Military Commander of the Admin-
istered Territories, the Court is merely maintaining its personal juris-
diction over an individual exercising a public function appointed under
Israel law. Such exercise of jurisdiction does not in itself exceed the
limitations imposed by international law, having regard to the territorial
link between the Military Commander (the respondent to the suit)
and the State 0] The personal amenability of the Military
Commander to the Court’s jurisdiction enables it of course to give
effect to its judgment notwithstanding that the subject matter may
relate to matters occurring in territory not itself subject to its juris-
diction.
The exercise of this personal jurisdiction is well founded in
international law. “The Law of Nations does not prevent a State
from exercising jurisdiction, within its own territory, over its subjects
travelling or residing abroad, since they remain under its personal
In accordance with this rule, and in accordance with
the principles laid down in Article 38 of the Palestine Order-in-
Council, 192247 (since replaced by the relevant provisions of the
Courts Law), the Supreme Court held in Weiss v. Inspector-General of
the Police** that a tribunal of the Israel Police had jurisdiction to
try disciplinary offences committed by Israel policemen in the Gaza
Strip during its occupation by the IDF in .1956

11 Cf. Shurpa v. Weksler )1974( 28 PD )1( ,510 ,513 517 for the proposition that
an Israel Court has no jurisdiction over a defendant residing in the Administered
Territories.
12 Cf. Ravidi vy. Military Tribunal )1970( 24 PD ,)2( ;419 Y. Sussman, Civil Pro-
cedure Rules, (4th ed., ,)1973 para. .35
13 Cf. F.A. Mann, “The Doctrine of Jurisdiction in International Law” )1964( III,
Recueil des Cours, pp. ,8 ,73 .76
14 Oppenheim, International Law, Vol. I (8th ed., ,)1948 p. .330
15 )1958( 12 PD .179
 SUPERVISION BY HIGH COURT OF JUSTICE 113

The old English case of Penn v. Baltimore** may also be in point.

In that case an English court made an order for specific performance
in respect of land situated in America, overruling the objection that
it had no jurisdiction (since it could not make an effective order and
execute its judgment) on the ground that primarily the order was not
in rem but in personam. It should be pointed out that whilst the order
of the Israel Supreme Court is not strictly speaking an order for specific
performance, it is similar to one in personam, as in a Court of Equity.
In principle, there would be no violation of any rule of interna-
tional law if a court of an administering or occupying state entertained
the petition of a resident of the administered or occupied territory
involving a review of the legislative, administrative or judicial action
of the administering or occupying authority. No provision in the
Hague Regulations can be found which might in any way be construed

as prohibiting the exercise of such jurisdiction.17

The question still remains whether the exercise of such jurisdiction
would not violate the provisions of Article 66 of the Fourth Geneva
Convention, which provides as follows:

“In case of a breach of the penal provisions promulgated by it

in virtue of the second paragraph of Article 64 [empowering the
occupying power to promulgate penal and other provisions for
its own protection and security] the occupying power may hand

over the accused to its properly constituted, non-political military

courts, on condition that the said courts sit in the occupied terri-
tory. Courts of appeal should preferably sit in the occupied
country.”

Irrespective of the question whether the provisions of the Geneva

Convention apply to all or any of the territories administered by
Israel and whether they are declaratory of existing international law

or constitutive, (and thus being treaty law cannot be invoked before

an Israeli court in a dispute between an individual and the State
since these provisions bind only the states parties to the Convention
and do not confer rights upon individuals), it would appear that they
apply only to courts dealing with criminal matters (as is also borne
out by the title of the Article) and not with disputes between the

16 )1750( 1 Ves. Sen. .444

17 Scott, The Hague Conventions and Declarations of 1899 and 1907 ,)1915( p. .100
114 E. NATHAN

individual and the authorities of a non-criminal character. Moreover

the last condition (“Courts of appeal shall preferably sit in the oc-
cupied country”—emphasis added) is clearly not of an absolute nature;
and again it is obvious that the courts of appeal mentioned can only be
courts hearing appeals against judgments of the courts to which the
first part of the Article refers, i.e., the military courts dealing with
breaches of the penal provisions in question, and not with courts
reviewing the legislative or administrative acts of the occupant.
Von and the BMML (Part III, para. )568 regard this Article

as an attempt to prevent an occupant from extending his domestic

court system (and by implication his domestic law) to territory under
its belligerent occupation. “This article prohibits the occupying power
extending to the occupied territory its own system of civil courts”.
In the context “civil courts” does not mean “civil courts” in contra-
distinction to “criminal courts” but the ordinary civil domestic courts
of the occupant in contradistinction to the military courts dealing with
violations of penal provisions enacted by the occupant.
construes the second condition of Article 66 to mean that
the occupying power is free to decide whether or not the competent
courts of appeal are to sit in occupied territory but they should
”ylbareferp“ sit there so as to provide the protected persons with
additional safeguards.
Before proceeding further, it should be noted that the jurisdiction
of the Supreme Court to deal with petitions against the Military
Commander of the Administered Territories under international law

or under the Courts Law has never been contested by the represen-
tatives of the Attorney-General appearing on behalf of the State;
indeed in the very first petition brought against the Military Com-
mander heard by the Supreme Court,?° counsel for the State declared
that he would not challenge the competence of the Court to review
the acts of the military authorities in the Administered Territories and
in a subsequent petition that he would not object to these acts being
reviewed in accordance with the relevant rules of international law
embodied in the Hague Regulations and in the Geneva Convention.

18 Op. cit., p. .116

19 Commentary, IV Geneva Convention relative to the Protection of Civilian Persons
in Time of War ,)1958( p. .341
20 Stekol v. Minister of Defence on 20 June 1967 .)detropernu( The order nisi was set
aside before the petition was actually heard.
 SUPERVISION BY HIGH COURT OF JUSTICE 115

The Court did not, therefore, have occasion to rule on these funda-
mental questions.
The only occasion it thought fit proprio motu to raise the question
of its jurisdiction (without the matter having been raised by either
party in the pleadings) was in Helou,2* in which the Court dealt in
extenso with its jurisdiction under section 7 of the Courts Law and its
power to review the acts of the military authority in the light of
international law.
The views expressed in this case were regarded by the judges
themselves to be obiter dicta and not binding.

C. JURISDICTION IN THE LIGHT OF THE COURTS LAW

Section 7 )b( )2( of the Courts Law provides:

“Without prejudice to the generality of the provisions of section

,)a( the Supreme Court sitting as a High Court of Justice shall
be competent —

aug
)2( to order state authorities, local authorities and officials of
State authorities or local authorities and such other bodies and
individuals as exercise any public functions by virtue of law to
do or refrain from doing any act in the lawful exercise of their
functions, or if they have been unlawfully appointed or elected to
refrain from acting.”

In Helou, the Court (per Landau J.) pointed out that personal
jurisdiction existed in respect of individuals exercising executive func-
tions in the military government in their capacity as persons exercising
“public functions by virtue of law” within the terms of the section.
Landau J. found the internal law source from which the Military
Government derives its authority in the general powers of the Israeli
Government and its Minister under sections 29 and 31 of Basic
Law: The Government.
Earlier, in Cherbet Bros. Building Co. Ltd. ‫ץ‬. Society for the
the Court had held that its jurisdiction under section 7 )b( )2( was
contingent upon the existence of two elements, the function of the
respondent to the suit, which must be a public function, and the

21 Above note .10

22 )1973( 27 PD )1( ,620 .626
 116 E. NATHAN

performance of that function by virtue of a power conferred by law.

Still earlier in Cohen v. Minister of the Court (per Cohn
J.) had held that it was a condition precedent for the issue of an
order under section 7 )b( )2( that the pertinent act or omission
is an act or omission by an authority of the State in the exercise of

a function imposed upon it by virtue of ,”wal“ within the meaning

of that term under the Interpretation Ordinance.
Since the judgment in Helou, the Knesset has enacted the Basic
Law: The Army, which defines explicitly that the Army is subject to the
authority of the Government, that the Chief of the General Staff is the
Supreme Commander of the Army and that he is appointed by the
Government upon the recommendation of the Minister of Defence.
It follows that the Military Commander in the Administered Terri-
tories is appointed by the Chief of the General Staff by virtue of his

powers under the Basic Law. Today therefore, the two basic condi-
tions necessary for the exercise of jurisdiction under section 7 )b( )2(
—the existence of a public function and the performance of that func-
tion under a power conferred by law—exist in regard to the legislative
and executive functions performed by the Military Commander. He
certainly exercises a public function in the area under his command,
and that function is performed by virtue of Basic Law: The Army
under which he is appointed by the Chief of the General Staff. It is,
therefore, unnecessary to discuss whether the authority of the Military
Government in the Administered Territories in point of Israel internal
law stems also from Basic Law: The Government (a question which
received a positive reply in the judgment of Landau J. in Helou) and
whether the Military Commander can derive his authority from this
last law since the Minister of Defence under section 31 )e( thereof
is not authorised to delegate his powers to make regulations of legis-
lative effect.?4
Notwithstanding our conclusion that the Military Commander may
be a proper respondent ratione personae to a petition based upon
section )7( )b( )2( of the Courts Law, the question remains whether
the Supreme Court has power to grant relief under that section, since
for that purpose it is not enough that there be a proper respondent to

23 )1962( 16 PD ,1023 .1034

24 Cf. Y. Zur, Powers of Supervision of the High Court of Justice in regard to
Orders and Proclamations of the Military Commander in the Administered Terri-
tories ,)1975( pp. ,16 .17
 SUPERVISION BY HIGH COURT OF JUSTICE 117

the suit and that the petitioner has what has been termed “procedural
locus to bring his action. There would appear to be no doubt
that a petitioner who applies to the Court to review legislative or
administrative actions affecting his rights would generally have locus
standi in the sense that term bears in the jurisprudence of the Court,
of a legitimate interest in the subject matter of his But he
would also have to prove a substantive right or cause of action (and
of course the power of the Court to grant the relief prayed for). In
this respect the jurisprudence of the Court has undergone extensive
changes in the interpretation of the scope of section 7 )b( )2( and
the nature of the substantive right which the petitioner has to prove.
Thus in Levy v. Minister of the Interior?® it was held that where
mandamus is claimed, the applicant will not succeed unless he can
show that the law imposes upon the authorities a duty to do the act in

In Cohen v. Minister of Defence*® Olshan, P. said that a petitioner

seeking a mandatory injunction must show the existence of a legal
right, and even if that is construed more extensively than a right con-
ferred by statute, he must still refer to a right recognized by law. In that

case, Witkon J. said the following (at p. )1027 on the nature of the
right of the petitioner:

“A rigid line should not be adopted in regard to the nature of the

right the infringement or negation of which may be the subject
of a petition to the High Court of Justice. I do not hold that the
right must be a statutory right enshrined in the law. This Court
has more than once recognised rights not mentioned in any pro-
vision of a Law and these decisions have crystallised into rights
recognised by law.”

In Fogel v. Broadcasting Authority, the Court (per Landau DP as

he then was) after a lengthy analysis of the above judgments came to
the conclusion that the substantive right which the applicant must
prove to obtain relief should be either a right matched by a correlative
duty or one of the liberties of the individual.

25 Cf. Fogel v. Broadcasting Authority )1977( 31 PD )3( ,657 662 and the judg-
ments referred to therein.
26 )1949( 2 PD ,136 .140
27 See also Bejarano v. Minister of Police )1949( 2 PD ,18 .22
28 Above note ,23 at p. .1031
118 E. NATHAN

If only the violation of a statutory right could be the subject of a

petition to the Court, it would appear that an applicant would be
precluded from praying for relief against the Military Commander
of the Administered Territories, since ”etutats“ within the meaning
of the Interpretation Ordinance is a statute in force in Israel and not

one in force outside the territory of Israel, such as the laws and orders
under which the Military Commander acts in the Administered Terri-
tories.
Support for the proposition that the very fact that the public officer

or public authority, respondent to the petition, derives authority from

law is sufficient to give the Court jurisdiction can be found in the case
of HaHevra HoDromit and Marbek v. Chief Rabbinical Council,” in
which it was held that the fact that the Chief Rabbinical Council con-
ducted its affairs in accordance with religious law could in no way im-
pinge upon the jurisdiction of the Court to review the petitioners’ com-
plaint that the Council was unlawfully discriminating against them or on
other grounds, and that the ”hcaer“ of the Court under section 7 of
the Courts Law extended to every public officer, public authority and
the like to the extent to which these derive their powers from the
legislator.
It would appear that the Court has practically abandoned a strict
and narrow interpretation of its powers under section 7 )b( )2( and
that the right-duty relationship on which the judgment in Fogel v.
Broadcasting Authority is based does not refer exclusively to a
statutory right (or a correlative statutory duty) but also to a right
which will be enforced by the Court because it relates to the perfor-

mance of a public function imposed by law, with a view to ensuring

the lawful performance of such duty. If that is the basis of the
substantive right of the applicant then, it is immaterial whether the
public function is exercised in accordance with norms deriving from
Israeli statute law, in accordance with self-imposed norms or other
legal norms not directly deriving from the Israeli legislator.
Furthermore, so far as the Courts Law is concerned, the jurisdiction
of the Court to entertain a petition against the Military Commander
can in any case be founded upon section 7 )a( of the Courts Law
which provides as follows:

29 )1964( 18 PD )2( ,324 ,333 .334

 SUPERVISION BY HIGH COURT OF JUSTICE 119

“The Supreme Court sitting as a High Court of Justice shall deal

with matters in which it deems it necessary to grant relief in the
interests of justice and which are not within the jurisdiction of

any other court or tribunal.”

This section has in recent years received very extensive interpre-

tation. Thus in Binui Ufittuach BaNegev v. Minister of the
Court (per Berinson J.) observed:

“Not once have we held that the jurisdiction conferred upon this
Court under section 7 )a( of the Courts Law is much wider and

more extensive than the powers conferred upon it under the

various sub-paragraphs of sub-section )b( both in regard to the
nature of the relief as also in regard to the bodies or persons whose
acts the Court is bringing under its review....
All this [the exercise of jurisdiction whenever the Court regards
it necessary in the interests of justice] falls within the wide and
all-embracing authority given to this Court under sub-section )a(
of section .7
It should be said that just as the matters with which we are
generally entitled to deal are not restricted (except for our not
trespassing upon the competence of other courts or tribunals),

so, or even more, there is no limitation whatever upon the relief

this Court can grant to the individual affected by an act or
omission by a state or public authority.
Any relief or any remedy which this Court may think fit to
extend and which may appear to it to be required to do justice is
within its reach.”

Similarly, in Cherbet Bros. it was held by an enlarged bench of

five judges (per Berinson J., Sussman D.P., as he then was, and
Cohn J. concurring):

“The relevant sub-section [sub-section )a( of section 7 of the

Courts Law] lays down a wide and comprehensive rule in regard
to the relief extended by this Court, which is restricted by two
conditions only: that in the opinion of the Court its intervention

30 )1974( 28 PD )2( .449

31 Cf. A. Ossnat, “The Extent of Jurisdiction of the High Court of Justice in the
Light of Recent Judgments” ,)1976( 5 Iyunei Mishpat, .167
120 E. NATHAN

is required in the interests of justice, and that the matter in ques-

tion is not within the jurisdiction of any other judicial authority.
These apart, no limits have been placed upon the matters the
Court is entitled to deal with, either in regard to the nature of
the relief which it may grant, or in regard to the identity of the
bodies which may be required to account before it for their acts
and

Accordingly it is not necessary for the respondent to be a person

acting under powers conferred by law or for the petitioner to found
his cause of action upon the violation of a statutory right in order to
enable the Court to exercise its discretion to grant relief.
Even if a more restricted interpretation of the power of the Court
under section 7 )a( of the Courts Law were and that

power construed rather in conjunction with those conferred by section

7 )b( 234( as being only applicable to public authorities in the
exercise of their public functions, and jurisdiction being exercised in
accordance with defined legal criteria, it would not appear that the
Court would be debarred from granting relief if the petitioner could not

prove the violation of a statutory right conferred upon him.

Thus in Fogel v. Broadcasting Authority the Court (per Landau
DP) relied upon the judgment of Witkon J. in Cohen v. Minister
of Defence cited above, in support of the proposition that the peti-
tioner is not bound to found his cause of action under section )a(7
of the Courts Law upon the violation of a statutory right conferred

upon him.
In conclusion it may be said that notwithstanding that a petitioner
praying for relief against the Military Commander of the Admin-
istered Territories will not generally be able to found his cause of
action upon the violation of a statutory right under Israel law, the
Court will nevertheless have jurisdiction to deal with his complaint
either under section 7 )a( or under section 7 )b( )2( of the Courts
Law.

32 For an extensive interpretatien of the powers of the High Court under sec 7
)a( of the Courts Law, see Cohen v. Minister of Defence, above note ,23 at
p. ,1034 per Cohn J. and Meron v. Minister of Labour, above note ,9 at p. .363
33 Cf. Fogel v. Broadcasting Authority, above note 25 at pp. ,664 665 and Bar
Shalom v. Zorea )1977( 31 PD )1( ,796 808 (per Asher, J.).
34 Cf. Zamir, “On Justice in the High Court of Justice”, )1970( 26 Hapraklit .212
 SUPERVISION BY HIGH COURT OF JUSTICE 121

D. JURISDICTION TO ISSUE ORDERS IN THE NATURE OF

HABEAS CORPUS

Section 7 )b( )1( of the Courts Law provides as follows:

)b(“ Without prejudice to the generality of the provisions of

sub-section ,)a( the Supreme Court sitting as a High Court
of Justice shall be competent:
)1( to order the release of persons unlawfull detained or im-

This remedy has its origin in the English writ of habeas corpus.
Petitions under the sub-section have already been filed for the purpose
of obtaining release from detention and to restrain deportation from
the Administered Territories .fc( Adwan v. Minister of Defence)35
It would appear that in England, habeas corpus would not issue
to a custodian on foreign soil in respect of detention there.*¢ The
US Supreme Court, has held in Johnson v. Eisentraeger®™ that it
had no jurisdiction to issue the writ as regards an enemy alien who
at no relevant time and at no stage of his captivity has been within
its territorial jurisdiction. In that case it refused to exercise its juris-
diction in favour of a German national confined in custody by the US
Army in Germany following conviction by a US Military Commission.
I do not think that the power of the Israeli Supreme Court to grant
relief under section 7 )b( )1( of the Courts Law should necessarily
be construed in the light of English or American precedents. The
English writ of habeas corpus had its origin in the feudal notion that
it was the duty of the sovereign to protect his subjects and in the co-
relative right of the subject to that protection, and the right of the
sovereign at all times to have an account why the liberty of any of his
subjects was restrained.*®
There is certainly no place for these notions within the conception
of section 7 )b( ,)1( the purpose of which obviously is to safeguard

35 H.C. 10672 (Motion )21472 .)detropernu(

36 Cf. S.A. De Smith, Judicial Review of Administrative Action (3rd ed. ,)1973

p. ;523 R. v. Pinchey [1906] 2KB 94 and Re Ning Yi Chin ,)1939( 56 TLR ,3

for the territorial limitations upon the issue of the writ under English law.
37 339 US .763
38 Per Lord Parker in Ex parte Mwenya [1960] 1 OB ,241 267 (relying on Blackstone’s
Commentaries, Vol. ,3 pp. ,131 .)277 The Court of Appeal allowed an appeal
against the judgment, but the parts of the judgment referred to were not dissented
from.
 12 E. NATHAN

the liberty of any person who is unlawfully detained or imprisoned

under the order of any person or authority subject to the personal
jurisdiction of the Supreme Court. As we have seen, the Court has

power to exercise personal jurisdiction over the Military Commander

of the Administered Territories, and, in turn, it will probably have
control or power over the person actually having custody of a detainee

or prisoner. Thus it appears that there is jurisdiction under section 7

)b( )1( to order the release of persons unlawfully imprisoned or
detained within the Administered Territories by reason of an order
emanating from the Military Commander of the Administered Terri-
tories.

E. POWER OF THE COURT TO ISSUE ORDERS AGAINST

TRIBUNALS OR COURTS

We shall now deal with the power of the Court to issue orders
against tribunals or courts in the Administered Territories under sec- |
tion 7 )b( )3( of the Courts Law —

“to order courts, tribunals and any such bodies and individuals as

are vested with judicial or quasi-judicial power by virtue of law

other than courts dealt with by this Law and religious courts—
to deal or to refrain from dealing or from continuing to deal
with a particular matter and to quash any proceeding taken or
decision given unlawfully.”

The powers of the Court under this sub-section are somewhat simi-
lar to the powers of the High Court in England to supervise inferior
courts, tribunals or quasi-judicial bodies and in particular to quash
judicial decisions given in excess of jurisdiction or in negation of the
rules of natural justice and to issue against these bodies orders in the
nature of certiorari and prohibition.
The Israeli Supreme Court has on various occasions exercised
jurisdiction over military tribunals in the Administered Territories,
without that jurisdiction being contested and without the Court raising
the question of jurisdiction proprio motu.*®
Yet it would appear that the Court has no jurisdiction under this
sub-section to issue orders against tribunals (including military tri-

39 See above note ,12 and Liftawi v. Minister of Defence )1977( 31 PD )1( 266 and

| El Avdah y. President of the Military Tribunal, Judea and Samaria .)detropernu(

 SUPERVISION BY HIGH COURT OF JUSTICE 123

bunals set up under legislation enacted by the Military Commander)

or against courts acting in the Administered Territories, since such

tribunals or courts do not act in accordance with and do not derive
their powers from Israeli law courts acting in the Administered Terri-
tories. There is some judicial precedent for this proposition.
In Hansalis v. Tribunal of the Greek Orthodox the
Supreme Court held that religious tribunals in East Jerusalem (in
that case the tribunal of the Greek Orthodox Patriarchal Church)

were not competent to deal with the confirmation of a will of a deceased

resident of East Jerusalem in regard to immovable property situated
in Jericho (which lies in the Judea and Samaria Area) drawn

up in accordance with Jordanian law and contrary to the provisions

of the Israeli Succession Law, ,1965 and the Court quashed a decision
of that tribunal that it was competent to deal with the matter.
In his judgment (at p. )277 Halevy J. referred to the territorial
chracter of the jurisdiction of the courts of Israel on the one part
and the courts of the Administered Territory of Judea and Samaria

area on the other part:

“The fact that the area of jurisdiction of the tribunal extends to

parts of the territory of Israel )melasureJ( and to parts of the
territory of Judea and Samaria (including Jericho) does not
confer upon the tribunal, sitting in Israel, the competence of a
court for Judea and Samaria and it cannot be considered as if it
were sitting in Jericho owing to its jurisdiction over Jerusalem.
The Israeli court system is totally separate from the court system
in Judea and Samaria. The two systems are based upon different
laws of jurisdiction and one system in no way affects the other.
The courts in Israel have no competence in Judea and Samaria
and the courts in Judea and Samaria have no competence to
act in Israel. The division is territorial and functional [emphasis
in the original]. The competence of courts and tribunals is laid
down by the laws of the territory in which they sit and in which
they are acting.
A court or tribunal in Judea and Samaria exercises jurisdiction
by virtue of the law of Judea and Samaria, a court or tribunal
in Israel exercises jurisdiction by virtue of the laws of

Although this judgment was given within the context of section 7

40 )1969( 23 PD )1( .260
 124 E. NATHAN

)b( )4( of the Court Law (conferring upon the Supreme Court
jurisdiction to order religious tribunals to act within their jurisdiction

or to refrain from acting in excess of their jurisdiction) and the

question of jurisdiction over tribunals set up under the law of Judea
and Samaria was not in issue, it would follow from the rationale of
the judgment that, under section 7 )b( )3( the Supreme Court would,
in the absence of express statutory authority, have no competence

over a tribunal, acting in Judea and Samaria and set up under the
laws of that area in a courts system territorially separate from that
of Israel.
In a subsequent judgment—Nasser v. Tribunal of the Gregorian
Armenian Court (per Landau J.) dissented from

some of the reasons underlying the judgment of Halevy J. in Hansalis

(these dissenting observations are, however, of little relevance for

our purpose) and held that since the Supreme Court derives its juris-
diction from Israeli law, it had no power to exercise supervisory juris-
diction over the orders of a tribunal (sitting in Jerusalem but exercising
its jurisdiction in Judea and Samaria and deriving its competence
from Jordanian Law) which were not given under Israeli law. This
decision clearly supports the view that the Supreme Court has no
competence under section 7 to exercise its supervisory jurisdiction
over a tribunal not acting under Israeli law and not deriving its com-
petence from that law.
I would submit, moreover, that the wording of section 7 )b( )3( is
clear enough not to warrant any other interpretation than one denying
competence to the Supreme Court to exercise supervisory jurisdiction
over courts and tribunals in the Administered Territories. The power
of supervision under the sub-section extends to every court and tri-
bunal (except for courts dealt with by the Courts Law and religious
tribunals) and the like, “vested with judicial and quasi-judicial power
by virtue of (emphasis added). ”waL“ is law within the meaning
of the Interpretation Ordinance, i.e., the law of Israel and not the
law of Judea and Samaria. As both the military tribunals and the
indigenous courts sitting in the Administered Territories derive their
competence from the laws of these and exercise their

41 )1976( 30 PD )2( .44

42 Cf. Order concerning Security Provisions (Judea and Samaria), Coll. P & O (Judea
& Samaria, Vol. I, p. ,5 under which military tribunals were established in Judea
and Samaria, and Proclamation concerning Law and Administration (above note )3
 SUPERVISION BY HIGH COURT OF JUSTICE 125

jurisdiction accordingly, they do not fall within the category of tribu-

nals and courts vested with judicial and quasi-judicial power by virtue
of law under section 7 )b( )3( and the Supreme Court would appear
to be precluded from exercising its supervisory jurisdiction over them.

F. POWER TO TEST VALIDITY OF LEGISLATION IN THE

LIGHT OF INTERNATIONAL LAW

The next question is whether the Supreme Court has competence

to test the validity of the legislation of the Military Commander in
the light of international law. The answer depends upon whether the
Military Commander is—in the exercise of his powers in the Admin-
istered Territories—subject to international law. This, in turn, is
connected with the character of this legislation as legislation of a

supreme and sovereign legislator not subject to any external norm

or otherwise.
These questions are of considerable if not decisive importance
in regard to the extent or perhaps the very effectiveness of the juris-
diction of the Supreme Court. For, if the legislative competence of
the Military Commander is equal to the legislative competence of the

supreme and omnipotent legislature of a sovereign state like the

Knesset, and as such (from the point of view of the Court’s juris-
diction) not subject to any norm of international law, then the extent
of the power of supervision of the Supreme Court is seriously impaired
not only in regard to the legislation of the Military Commander but
also in regard to his executive and administrative acts.
As for the legislative power of the Knesset, the rule is that it has
unlimited power of legislation, that this power cannot be questioned
in a court of law, that the courts are subordinate to the legislative

power and will not accordingly pass the legislation of the Knesset
under their judicial review.“ As the judgment in El Azhari v. Minister
of put it:

“After a law has been adopted by the Knesset and published in

Reshumot [Official Gazette] we have to bow our heads and not
question its provisions, rulings and propositions.”

under which indigenous courts continued to exercise their jurisdiction in the area.
43 E. Likhovsky, “The Courts and the Legislative Supremacy of the Knesset” )1968(
3 Is LR .345
4# )1965( 19 PD )1( ,337 .349
16 E. NATHAN

If the legislation of the Military Commander were elevated to the

status of the legislation of the Knesset, the result would be not only

that the Supreme Court would be precluded from questioning or

reviewing its validity in whatsoever respect, but owing to the absolute

powers of the Military Commander in the Administered Territories,

the Court’s supervisory power in any other direction would be
completely dependent upon his consent and good will.
Under the terms of the Proclamation Concerning Law and Adminis-
tration, the power of legislation, government, appointment and adminis-
tration of the Military Commander is absolute and not subject to prior
consultation with or consent of any exterior source or authority. Owing
to this absolute power he could, if he thought fit, legalise any adminis-
trative or executive act of his own or of any of his subordinates, de-
clared unlawful by the Supreme Court, by enacting ex post facto
validating legislation which could not subsequently be challenged in

any court. He could also, if he thought fit, preclude from the outset
any judicial interference with his executive and administrative acts by
impressing upon such acts the seal of legislative finality. Thus, the
effectiveness of the supervisory power of the Supreme Court over the
executive and administrative acts of the Military Commander would
be nullified if the legislation of the Military Commander had the same
status as the legislation of the omnipotent parliament of a sovereign
state.
It is, however, submitted that the Military Commander of the Admin-
istered Territories is not the legislator of a sovereign state but the head
of a military government set up in an area outside the territory of
Israel, over which he is in control as a result of military action (albeit
defensive). He is therefore subject to the laws of war under interna-
tional law.
His governmental power is exercised over enemy nationals within
the context of war; the territory to which his authority extends is not
subject to the rule of any civil authority; his authority is definitely that
of a military government.
Whilst it may be that part of this territory was not subject to the
sovereignty of any other state, upon the IDF assuming control,* the
sovereignty of Israel has not been extended to any part thereof. The

45 J.Z. Blum, Missing Reversioner: Reflections on the Status of Judea and

Samaria”, )1968 3 Is. LR ;273 S.M. Schwebel, “Which Weight to
64 AJIL )1970( p. .344
 SUPERVISION BY HIGH COURT OF JUSTICE 127

authority of the Military Commander in that territory rests on de facto

(not de jure) sovereignty. This is clearly borne out by the provisions

of Proclamation No. 1 issued by the Commander of the IDF in the
Administered Territories upon assuming control, section 1 of .which
reads as follows:

“The Israel Defence Forces have entered the Area today and
assumed the control and preservation of law and public order in
the Area.”

Reference may also be made to section 4 of Proclamation No. 2

issued by the Commander of the IDF in Judea and Samaria: “

“Movable and immovable property... which has belonged to

or is registered in the name of the Hashemite Kingdom of J ordan

or its Government or any of its entities or organs or any part
thereof, shall be transferred into my exclusive possession and shall
be under my management.”

It will be noted that the Proclamation uses the terms ”noissessop“

and ”tnemeganam“ and not the term ,”pihsrenwo“ thus emphasising
the de facto character of the military regime established by the Military
Commander.
Since its inception, the role of military government has never been
conceived of but as provisional in its very nature, as a temporary
régime until the sovereignty over the area (or its status) is finally
determined.
Within this context it is obvious that the inhabitants of the territories
—being enemy nationals—cannot and indeed have never been treated
—from the legal point of view—in the manner Israel nationals
(or non-enemy aliens) are or might be treated under Israeli law.*
Indeed they can be treated only within a war-time context governed
by the rules of war laid down by international law.
The law pertaining to the status, rights and duties of enemy nationals
is part of international law (the laws of war) (as was held by the US
Supreme Court in the famous case of Ex parte Moreover, it

46 Coll. P & O (Judea and Samaria), Vol. I, p. .3

47 Above note .3
48 H. Kelsen, Principles of International Law, (2nd ed. ,)1966 p. .142
49 )1942( 317 US I, per Stone, C.J. (referred to in Sylvester v. Attorney General
)1948( 1 PD ,5 .)26
128 E. NATHAN

would appear that since the legislation of the Military Commander is

strictly territorial and de facto in character, he has no authority, and
has in fact never purported to exercise personal jurisdiction over persons
from the Administered Territories residing in countries outside his
control, or to enact any extra-territorial legislation of any kind; indeed
the exercise of such extra-territorial jurisdiction or the enactment of
such extra-territorial legislation would appear to be inconceivable:

“The authority of a military government naturally extends only

to the borders of the occupied zones. Natives of the area who
are living beyond its boundaries at the time of occupation are
not subject to the control of the occupation

An examination of the legislation enacted by the Military Commander

clearly reveals that he avails himself of all the powers conferred upon

a military commander under the laws of war for the purpose of pro-
tecting his forces and maintaining public order and security. Thus Israeli
military government possesses all the characteristics of a war-time
military government and exercises its de facto sovereignty in accordance
with international law and practice.
Scholars differ over the question whether the power of military gov-
ernment in occupied territory is derived from international law or rests
solely on force and on the fact of conquest.*! It would appear, however,
that even those who maintain that military government rests entirely

on the fact of conquest do not deny the existence of a general principle

in international law that the powers of the military or occupying autho-
rity are limited by the laws and customs of war, a principle recognized

a long time before the Hague Regulations, as is borne out by the

famous American case of New Orleans v. Steamship Company.™
Authority for this proposition will also be found, inter alia, in

von Schwarzenberger,*4 Morgenstern,®> and others.

In the words of von Glahn:

50 McNair and Watts, op. cit., pp. ,265 .369 Cf. von Glahn, op. cit. p. ;266
Greenspan, op. cit., p. ;212 Schwarzenberger, International Law ,)1968( Vol. II,
p. ,330 and Kelsen, op. cit., p. .140
51 Cf. F. Morgenstern, op. cit., p. .291
52 Cited in von Glahn, op. cit., p. .265
53 Ibid., p. .265
54 Op. cit., pp. ,171 ,172 ,199 .200
55 Op. cit., p. .296
56 Above n. ,4 at p. .369
 SUPERVISION BY HIGH COURT OF JUSTICE 129

“The laws of war including the rules applicable to belligerent

occupation are in part permissive and in part prohibitory—a fact
that has been overlooked frequently in treatments of the subject.
The permissive rules of occupation enable the belligerent state
to undertake many things which that state could not lawfully
attempt to do under the law of peace, such as occupation of for-
eign territory and the levying of requisitions or to issue regulations
binding a foreign population while the occupation is in effect.
The prohibitory rules on the other hand in general impose
limitations on the exercise of the abnormal powers ofa belligerent”.

The opinion has been voiced that the whole idea of the restrictions
imposed upon the powers of military government is based upon the
assumption that the territory concerned was prior to the establishment
of military government under the sovereignty of an ousted legitimate
From this it could follow that in those parts of the
Israeli Administered Territories which were not under the legitimate
sovereignty of any other state prior to the establishment of military
government by the IDF the powers of the Military Government would
not be restricted by any prohibitory norms of the laws and customs
of war as have been codified in the Hague Regulations or otherwise
form part of customary international law.
This opinion could give rise to the assumption that as the rules
of international law pertaining to belligerent occupation were intended
for the purpose of safeguarding the reversionary rights of the ousted
sovereign, they will not apply where no reversionary sovereign exists.
I doubt whether such assumption does not unduly reduce the scope
of application of the laws of war under international law. I have en-
deavoured to show that within the context in which Israeli military
government was established and is in fact exercised, it cannot be con-
ceived of otherwise than within the context of a situation in which
the laws of war apply. Furthermore, military government is subject to
international law not only when its powers are exercised within the
territory of a legitimate sovereign but more extensively. Greenspan
that

57 M. Shamgar, “The Observance of International Law in the Administered Terri-

tories” ,)1971( 1 Is YHR ,261 .263
‫קס‬. cit., pp. ,211 .212
130 E. NATHAN

“Military government may be applied not only in enemy territory

but in allied or domestic territory also. When the latter territories

are recovered by armed action from enemy occupation or from

rebels treated as belligerents, it is recognized that military necess-
ity may require the establishment of military government if the
governments of the territories are absent or are unable to function
properly. Such areas are known as ‘liberated territories’.
Military government is of course to be distinguished from
martial law. The former is regulated by international law and is
the temporary rule imposed upon territory wrested from an

enemy in warfare... The basis of all Military Government lies in

the necessity for the occupying force to exercise functions of civil
government and to restore and maintain public order and safety
when the occupying force has substituted its authority for that
of the sovereign or previous government, or where the previous
government is absent or unable to function properly. This is an
obligation imposed by international law.”

Similarly von Glahn® referring in particular to the Rules of Land

Warfare:

“Military government is defined in the current American

military manual as the ‘supreme authority exercised by an armed
occupying force over the lands, properties and inhabitants of an

enemy, allied or domestic territory’. Specifically a military gov-

ernment may be created in enemy territory, in allied territory
recovered from enemy occupation when that territory has not
been made the subject of a civil affairs agreement with its lawful
government and in other territories liberated from an enemy
such as neutral territories and areas unlawfully incorporated by

an enemy into his territory, when those areas or neutral territory

have not been made the subject ofa civil affairs agreement. Military
government comes into being after armed forces have occupied
the lands in question and have substituted their effective authority
for that of the legitimate sovereign or of some other previously
existing government....
The authority of a military government of an occupied area is
complete and is limited only by the principles of International

59 Op. cit., pp. ,263 .265

 SUPERVISION BY HIGH COURT OF JUSTICE 131

Law particularly by the so-called rules of war. The American

Civil Affairs Manual is emphatic in its reference to the authori-
tative basis of international law and states that the latter applies
not only to occupied enemy territory but also to any other terri-
tories occupied by the forces of this country.”

That international law controls the exercise of military government

mot only within the territory of an ousted legitimate sovereign but
elsewhere is supported by the decision of the Philippines Supreme
Court in Tan Tuan v. Lucena Food Control Board® where the law
of belligerent occupation was held to be applicable to the occupation
by a state of a territory previously occupied by the Japanese enemy
during the Second World War and the United States was considered

a belligerent occupant of an area of the Philippines which had been

liberated before civil administration was restored. In the words of
the Court:

“This phase... is controlled by the laws of war. The fact that

this was not foreign territory did not deprive the U.S. Army of
the status of belligerent occupant. Military government may be
established not only in foreign territory occupied or invaded in
time of war but also domestic territory in the state of rebellion

or civil war. The right to establish government is not at all de-

pendent upon the right of conquest but is treated as an incident
to the mere right of belligerent occupation. A nation cannot
conquer its own territory but it may subdue and occupy such
portions of it as are under the threat of insurrection against its
authority in or for that matter of foreign invasion’’.®

The preamble of the Hague Regulations may also be recalled:

“Until a more complete code of the laws of war has been issued,
the High Contracting Parties deem it expedient to declare that in
Cases not included in the Regulations adopted by them, the inhabit-
ants and the belligerents remain under the protection of the
rules and the principles of the law of nations, as they may result
from the usages established among civilized peoples, from the
laws of humanity and the dictates of the public conscience.”

60 )1951( 18 ILR, Case No. .181

61 See also BMML, Part ,3 para. ,499 note .3
12 E. NATHAN

This language would appear to express the intention of the , arties

to the Hague Convention that insofar as the Regulations embody

norms of international law, these are binding as minimum standards
of international law, even in situations not directly covered by the
Regulations.
Although the question whether military government is subject to
the limitations of the laws of war in those areas which were not pre-
viously subject to the rule of a legitimate sovereign has not so far
been directly in issue in any of the judgments given by the Supreme
Court pertaining to the question of the status of military government,
the Court has held on various occasions, since shortly after the estab-
lishment of the State of Israel, that military authorities were subject
to the laws of war, and a decision to that effect was also given by
a Claims Tribunal established by the Military Commander in Judea
and Samaria.
Long before the Administered Territories came under the control
of the IDF after the Six Days’ War, the Supreme Court had occasion
to review acts of the Israel military authorities in the light of inter-
national law in connection with the Areas of Jurisdiction and Powers
Ordinance, ,1948 which provided that every law applicable in the
State of Israel shall be deemed to apply to every part of Palestine
which the Minister of Defence has defined by proclamation as being
held by the IDF.
On the first occasion in Sylvester v. Attorney General,®? the Court
accepted without question the applicability of the Hague Regulations
to what was then the “held area” of Jerusalem administered by the
Israeli military government, it rejected the defence that the application
of the Official Secrets Ordinance in this area was contrary to Article
43 of the Hague Regulations and held that the Ordinance was necessary
for the maintenance of order and public security.
In Sabou v. Military Commander,® the Court reviewed the power of
the Military Commander of what was then the “held area” of Jaffa
to issue an order of eviction. Counsel for the State argued that the
action of the Military Commander was in accordance with the powers
conferred upon him under international law and did not exceed the
limitations imposed by the Hague Regulations, because it was reason-

62 Above note ,49 at pp. ,21 .30

63 )1949( 2 PD ,701 ,704 .705
 SUPERVISION BY HIGH COURT OF JUSTICE 133

ably required for the security of the forces and the proper adminis-
tation of the area. The Court reviewed the powers of the Commander,

_ alia, in the light of the Hague Regulations and pointed out that
he did not allege in his reply that the action taken by him was required
_ for the security of his forces and the proper administration of the
held area.
In Shurpa v. the Court relying on its judgment in Alma-
520558 v. Minister of Defence, referred to the Israel Government’s
exercising in the Administered Territories de facto sovereignty by
might of conquest in accordance with the rules of international law.
This, hovewer, was a civil action in which the military government
was not involved and the question of its powers not in issue. In the
course of the hearing in the latter case, counsel for the State had
declared that he would not contest the competence of the Court to
review the powers of the military government in the light of the Hague
Regulations and the Fourth Geneva Convention because the Military
Government was in fact duly abiding to these Conventions.
In the Helou Landau J. said that from the point of view of
international law all the acts—both executive and legislative—of the
Military Government outside the area in which the law of Israel
applies are derived from the applicable rules of war. He also said
that so far as the Supreme Court was concerned, the legislation of
the Military Commander was in the nature of principal legislation like
that of the Knesset, but as regards the Court’s power of review it
should be compared rather to a norm voluntarily established by an
administrative authority; the judge also said obiter (since the point
was not put in issue by counsel for the State) that the Court was
empowered to examine the administrative actions of the Military Gov-
ernment in the light of customary international law as there was no
Israeli statute applicable to the matter and therefore the question of
a conflict between international law and Israeli municipal law did
not arise.
Kister said that the Military Commander need not prove the
source for the exercise of his authority since he himself was the

64 Above note ,11 at p. .517

me )1972( 26 PD.(1) :k58
66 Above note ,10 at p. .177 For a case note reviewing this judgment, see Dinstein,
“Judgment in the Matter of Pitchat Rafiah” ,)1974( 3 Iyunei Mishpat .934
87 Helou at pp. ,183 .184
 134 E, NATHAN

source, as was also recognised by international law, but the acts of

the Military Government must conform with the rules of international
law prescribing the limits of his authority.
Witkon J.,6° on the other hand, did not discuss the question whether
the Military Commander was subject to international law but said
that the Court had no power to review the legislation of the Commander
in the light of international law (I shall refer to the reasons of this
judgment on this aspect at a later stage).
The question of the binding force of the rules of international law

on the Military Commander was directly in issue before a military

claims tribunal set up under the Order concerning Claims (Judea
and Samaria) .oN( ,)271 ®.1968 In this case,”° counsel for the Military
Government pleaded that the tribunal was subject only to ”wal“
within the meaning of the Interpretation Order (Judea and Samaria)
.oN( ,)130 ”,1967 i.e. security legislation enacted by the Military Com-
mander and all such legislation as was in force in the area upon the
assumption of control by the IDF (which did not include international
law); it was also pleaded that since the Military Commander was the

supreme legislative norm in the area, the tribunal had no power to review
his legislation in the light of international law. The tribunal rejected
these arguments and held” that if the tribunal was satisfied that the
Commander had exceeded his authority (under international law), it

was not only entitled and authorised but also obliged to declare the
relevant legislative acts invalid.
In the more recent Eilon Moreh case™ the Supreme Court dealt
with the legality of an Order issued by the Commander of Judea and
Samaria for the seizure of private land which he declared to be required
for military purposes. The Court held that the source of the Order
derived directly from the powers conferred under international law

upon the military commander of an area occupied by his forces in

war, as well as by the elements of the law enacted by the Israeli
Commander of the Area—also in accordance with the laws of war
under international law.

68 at p. .180
69 Coll. P & O (Judea & Samaria), Vol. ,3 .541
70 Collection of Decisions of Claims Tribunals in the Administered Territories -bup(
lished by the Office of the Military Advocate General), pp. 1 et seq.
71 Coll. P & O (Judea & Samaria), Vol. I, .272
72 Above note ,70 at p. .26
73 Dvikat v. Government of Israel )1980( 34 PD )1( .1 See Appendix.
 SUPERVISION BY HIGH COURT OF JUSTICE 135

tt would appear that in the cases in which the question of the

ding force of the rules of international law on the Military Com-

ader was discussed (although mostly obiter) no authority could
found for the proposition that the Military Commander of the
Administered Territories does not exercise his powers subject to the

s of war and all the dicta and decisions proceeded on the assump-
Gon that he indeed exercises his powers subject to the restrictions
upon him by international law.
the powers of the Military Government in the Administered
_ Territories are subject to the restrictions imposed by international law,
_ the question arises where these restrictive norms of international law

| are contained. The answer (for the purpose of this enquiry) is, in the
_ Hague Regulations and the Fourth Geneva Convention. Do these

_ Conventions impose obligations and create rights directly enforceable

under Israeli municipal law before an Israeli Court? To answer this,

we must briefly analyse the relationship between international law

and Israeli municipal law in the light of the jurisprudence of the
Supreme Court. It was held in Stampfer v. (per
Cheshin DP) that the generally accepted principles of the law of
nations form part of the law of Israel, inter alia, because the State is

a member of the community of nations.

A rule of international law satisfactorily proved to have been generally
recognised and accepted by many states and to have been consented
to by the other civilised nations will be incorporated into municipal
law and acted upon by the courts, provided there is no conflict between
the rule and some binding provision of statutory municipal law (Adolf
Eichman v. Attorney-General™).
In Custodian of Absentees’ Property v. Samara™ the Supreme Court
held (in regard to rights claimed by the respondents under Article 6
of the Armistice Agreement between Israel and the Hashemite Kingdom
of Jordan) that a treaty concluded tetween Israel and a foreign state
whatever its position under international law is not in the nature of
law which the courts will enforce, that the rights conferred by the
treaty and the obligations imposed by it are the rights and duties of
the contracting parties only (unless the provisions of the treaty have
been given effect by municipal law).

74 Above note ,10 at pp. ,515 .516

7 )1962( 16 PD )3( ,2033 ;2040 36 JLR ,280 °287
7 )1956( 10 PD .1825
16 E. NATHAN

In regard to the Hague Regulations and the Fourth Geneva Conven-

tion, the Supreme Court in Almakadssa v. Minister of Defence
expressed the opinion that these two Conventions were international
obligations binding the contracting parties and forming part of inter-
national law, and posed the question whether they were law imposing
obligations and creating rights enforceable in an ”lanretni“ dispute
between the individual and the state. The Court did not, however, find
itself compelled to decide on the point because counsel for the State
declared that he would not put the question in issue as the Military
Commander was acting in accordance with the Conventions.”* However,
in Helou Landau J. expressed the opinion that some of the Hague
Regulations have their origin in customary international law.’®
In the recent Bet El case” the Court held that the Hague Convention
is regarded as customary law enforceable by action in a municipal court
and that the Geneva Convention belonged to the category of inter-
national treaty law the enforcement of which is a matter for the con-
tracting parties. Thus the Court found itself absolved from dealing with
the question of the applicability of the Geneva Convention in regard to
Israeli administration of Judea and Samaria.
Subsequently, in Eilon Moreh, the Court again held that customary
international law formed part of the law of Israel, insofar as it was not
contrary to local statute law, and as the Hague Regulations were part
of customary international law, they were binding upon the Military
Government in Judea and Samaria. On the other hand the Court
followed its previous decision in Bet El as to the non-justiciability of
the Genera Convention before an Israeli Court.
In a Claims Tribunal case in Judea and Samaria® the question of the
binding force of the Hague Regulations and the Fourth Geneva Con-

77 For the view that the Fourth Geneva Convention confers rights and imposes duties
upon the contracting parties only and does not create law enforceable by the
individual against the authorities, see Abu El Tin v. Minister of Defence )1973(
27 PD )1( ,481 .485
78 See also Arnon v. Attorney-General )1973( 27 PD ,)1( ,234 236 in regard
to Article 43 of the Hague Regulations. That the Hague Regulations, being part
of customary international law, form part of the law of Israel, see Dinstein, above
note .66
78 Ayoub v. Minister of Defence & Matweh v. Minister of Defence )1979( 33 PD
)2( ,113 ,120 ,121 .128 See Appendix.
80 Above note .70
 SUPERVISION BY HIGH COURT OF JUSTICE 137

_ention was discussed and it was in held that doubts existed—owing

the nature of the relations between Israel and Jordan—in regard

the applicability of the Convention. Counsel for the Attorney-
General declared that the IDF were in any event acting in practice
accordance with the Conventions. The tribunal, however, ex-

_ pressed the view that they should be regarded, at least in regard to

the matter before it (destruction of private property), not as constitut-

_ but as declaratory of international

International law distinguishes between declaratory and constitutive
treaties. The former transform existing norms of international law from
_ customary into conventional law, the latter create new norms or norms
which have not as yet crystallised into binding rules of international
customary law and these are of course law between the contracting
parties only. Furthermore, constitutive conventions may in the course
of time become invested with a declaratory character and the norms
created by them universally accepted and thus crystallised into norms
of customary law which are binding also upon states not parties to them.
It has been pointed out that, in regard to law-making declaratory
treaties, the rules of international law embodied in the treaties will
be automatically incorporated into municipal law not because they

are spelled out in a convention but in spite of that; they will be

automatically incorporated because the convention only reflects exist-
ing customary international law.®
Do the Hague Regulations and the Fourth Geneva Convention come
within the category of declaratory or constitutive conventions? There

can be little doubt that the Hague Regulations have by now crystallised
into binding rules of the laws of war forming part of customary inter-
national law. The most striking expression of this will be found in
the judgment of the International Military Tribunal )grebmeruN( of
1 October ,1946 where it was stated that “By 1939 these rules were

81 At pp. ,28 .29

82 Y. Dinstein, International Law and the State ,)1971( p. .148 See for a similar
view of the binding effect of a provision in an international convention decla-
ratory of existing rules of customary international law, the judgments of Cohn J.
in Latoshinski v. Kirshan )1967( 21 PD ,)2( 20 and The American European
Beit El Community v. Minister of Welfare )1967( 21 PD ,)2( ,325 .333 The
criticism levelled against these judgments by N. Feinberg, “Declaratory and
Constitutive Treaties in International Law )1968( 24 HaPraklit 433 is based
on different grounds and is therefore irrelevant for the present purposes. See
also D.P. O’Connell, International Law ,)1970( Vol. ,1 pp. ,25 .26
138 E. NATHAN

recognised by all civilised nations, and were regarded as being declar-

atory of the laws and customs of war”.®

As for the Fourth Geneva Convention, it should be pointed out that
although Israel is a party to this Convention, the Government of
Israel was of opinion that in view of the specific status of the Admin-
istered Territories (some of them were in its opinion not previously
under the control of any legitimate sovereign) the Convention did
not apply to these territories, but it decided to act de facto in accord-
ance with the humanitarian provisions Yet the question
remains whether all or some of the rules enshrined in the Convention

are declaratory of existing norms of customary international law

relating to war or constitutive norms created by the Convention itself.
To the extent that they are declaratory of international law, these rules
will be binding not as contractual but as customary norms of the laws
and customs of war and in every context in which such laws and
customs are applicable, but in the latter case they will only be binding
upon states parties to the Convention, assuming that the Convention
is binding in the particular context within which its provisions are
being relied upon. This view is based on the assumption that the laws
and customs of war are applicable and binding in the Administered
Territories, a subject with which I have dealt at some length in
previous parts of this study, where I also pointed out that the rules
of war apply also in those territories which prior to the IDF taking

83 The International Military Tribunal, Trial of the Major War Criminals, Vol. XXII,
p. 497 ,grebmeruN( ;)194749 in support of the declaratory character of the
Hague Regulations, see Schwarzenberger, op. cit. p. ;257 Oppenheim, Inter-
national Law (7th ed.) Vol. II, p. ;229 Sorensen, Manual of International Law
,)1968( p. ;295 Dinstein, “Legislative Power in the Administered Territories”
)1972( 2 Iyunei Mishpat, pp. ,505 ;507 Claims Tribunal case above note ,5 pp. ,26
,29 in which reference is made to a Collection of the Laws of War by the General
Staff of the Israel Defence Forces, in which it is stated that Israel, although not

a party to the Hague Regulations, is to be regarded as bound by its provisions.

See also Weber v. Credito Italiano )1946( Annual Digest, Case Number :163
L.Y. )1947( Annual Digest, Case Number ;110 Société Italiana per il Gaz v.
Uniabella, )1949( Annual Digest, Case Number ;204 Dutch Machines Case )1949(
Annual Digest, Case Number .131 The binding character of the Hague Regu-
lations was not questioned by the Supreme Court, in Sylvester v. Attorney-
General (above note )49 or in Sabou v. Military Commander (above note .)63
84 Shamgar, above, chapter I. The legal force of this view has never been tested in
Court because the Court held that the Geneva Convention being treaty law, was
not enforceable before a municipal court in Israel.
 SUPERVISION BY HIGH COURT OF JUSTICE 139

er control were not subject to a legitimate sovereign; even if the

Convention as such—including the administrative machinery estab-
by it—would not be applicable in the Territories, some of the

norms embodied in it would be applicable as binding norms of

rules of war.
The question whether the Fourth Geneva Convention is declaratory

_ of international law or constitutive has given rise to conflicting points

of view. The most far-reaching in favour of its declaratory nature is
_ expressed by Pictet:

“The Convention does not strictly speaking introduce any inno-

vation in this field of international law. It does not put forward

any new ideas but it reaffirms and amends bya series of detailed
provisions the general acceptance of the principle of respect for
the human person in the very midst of war—a principle on which
too many cases of unfair treatment during the Second World War
appeared to have cast doubt.”

On the other hand Yin Gang and Ginnane are somewhat more
restrained in their conclusions:

“The new Civilian Convention is an extension and codification

of earlier rules and practices governing the treatment of alien
enemies in a belligerent country and in the treatment of the in-
habitants of territory under military occupation.”

According to others, parts of the Convention would appear to be

declaratory of existing rules of law, whilst parts would be supple-
mentary to these rules. Thus Gutteridge observed:

“To some extent [the Convention] is declaratory of existing

principles of international law but in a large measure it lays
down new principles to become part of that law.”

Similarly

“The question whether Geneva Red Cross Convention IV is

declaratory or constitutive is not settled conclusively in the Con-
vention. It is merely stated that the Convention is supplementary

86 Pictet, above, note ,19 p. .9

86 46 AJIL ,393 .411
87 )1949( 26 BYIL, ,294 .318
88 Op. cit., pp. ,165 .166
 10 E. NATHAN

to the corresponding sections of the Regulations of 1899 and

.1907 Some of its provisions are no more than attempts to clarify
existing rules of international customary law. This is probably
true in particular of those articles in Section I of Part III of the
1949 Convention in which a number of requirements of the
standard of civilisation, such as the prohibition of taking of
hostages, are codified. The same applies to the prohibition of
the deportation of inhabitants of occupied territories. To the
extent, however, to which existing legal duties of occupying powers
are not merely elaborated, but enlarged, the Convention must
be treated as constitutive and applicable only between the parties.”

Oppenheim points out® that the detailed provisions contained in

the Convention in many ways go beyond the obligations of customary

international law with regard to the treatment of enemy aliens in
the territory of the belligerent.
It would not appear that the intent and purpose of the Convention

was merely to provide rules declaratory of international law. The

avowed purpose of the Convention, which was drafted shortly after
the termination of the Second World War and against the terrible
experiences of the brutal and flagrant violations of the laws of war,

was to amend, supplement and improve the existing rules and establish
enforcement machinery rather than merely codify them. As appears
from the consensus among writers, the Convention contains many
innovations as well as rules clarifying, codifying or elaborating upon
existing rules with the fundamental purpose of establishing basic mini-

mum standards of conduct in the treatment of alien enemy population

and generally in the circumstances to which the Convention applies.
It is clearly beyond the scope of this enquiry to examine in detail
the various provisions of the Convention in order to fit them into
the declaratory or constitutive category. Many of the rules in regard
to the treatment of “Protected Persons” in Section I of Part III would
appear to embody generally accepted rules of law. The same would
apply to the part dealing with the requisition of the services of the
population of occupied territory as well as to certain other provisions
relating to “Occupied Territories” in section III of Part III, some of

89 Op. cit., 313 and cf. Dinstein, above note ,66 and idem, “Judicial Review of the
Actions of Military Government in the Administered Territory” )1973( 3
Iyunei Mishpat, pp. ,330 .333
 SUPERVISION BY HIGH COURT OF JUSTICE 141

uch. concerning penal legislation and courts, constitute a restatement

f existing customary law .g.e( Article )64 and others introduce novel
jons in international law, drawn from Anglo-Saxon concepts of
.g.e( Articles )7178 which are certainly supplementary

® existing
_ We now international
turn to the question whether the Supreme Court is com-

to review the legislative and executive acts of the Military

“Commander having regard to the specific character of these acts.
TE the legislative and executive powers of the Military Commander
subject to the restrictions imposed by binding rules of customary
law, then any exercise of such powers clearly exceeding
restrictions should be regarded as ultra vires and void.*
Does, however, a judicial organ exist competent to review and

_ @djudicate upon the validity or invalidity of the acts of the Military

Commander in the light of international law? The question has been
with by writers from the aspect of the competence of indigenous

_ in occupied territories. In an extensive study Morgenstern®

shows that municipal courts in some of the occupied countries—during
World War I and World War to give effect to acts of
the occupant which they regarded as exceeding his powers under
the Hague Regulations, such as the courts of Greece and Belgium,
whilst other courts under German occupation refused to review the
acts of the occupant in the light of international law.
In Israeli-administered territory the competence of indigenous courts

_ to review acts of the military authorities was the subject of a decision

of the local Court of Appeal of In that case the Court
held that Order No. 145 of the Commander of Judea and Samaria,
promulgated in consequence of the strike of local lawyers, initiated by
the Jordanian authorities which authorised Israeli advocates to appear
in proceedings before the civil courts of the area®* was within his
legislative power since the military authorities were the sole judges of
the extent of the need to freeze or amend or replace local laws, and

80 Cf. Von Glahn, op. cit., pp. ,114 ,115 .122

Cf. Morgenstern, op. cit., p. ;301 Claims Tribunal case, above note ,70 p. .26
92 Op. cit., pp. ,302 .303
93 El-Jabari v. El-Awiwi, 42 ILR .484
4% Order concerning the Appearance of Israeli Advocates before the Courts -ivorP(
sional Instructions) (Judea and Samaria) .oN( )145 ,1967 Coll P&O (Judea
& Samaria), Vol. ,2 .306
142 E. NATHAN

therefore the local courts were not competent to consider whether such

an imperative need existed.

Various views have been expressed about the competence of indigen-

ous courts in this sphere. Thus, Schwenk observes*® that

“Many courts have assumed the right to examine whether the

occupant’s measures comply with Article 43 (of the Hague Regu-
lations, .)1907 The wisdom of these decisions is doubtful. While
such a review would constitute a convenient check on ultra vires
legislation, it seems questionable whether the Hague Convention
intended to sanction the reviewability of measures taken by the
military occupant.”

Criticism has been voiced of the judicial review of the legislative

acts of the military government exercised by indigenous courts in
occupied territory. doubts whether such courts are the

proper agencies of review. Similarly Schwenk®’ doubts whether the

Hague Regulations intended to sanction the reviewability of the measures
taken by the military occupant. This opinion appears to be based on
Article 3 of the Hague Convention No. IV (to which the Hague Regula-
tions are annexed) under which a state in breach of the provisions of
the Regulations is obliged to pay compensation to the state injured
by the breach. This view does not perhaps give sufficient weight to the
now generally accepted opinion that the norms established by the
Hague Regulations have become declaratory of international law binding
not only upon the contracting parties and therefore directly enforce-
able under municipal law. Von points out that there would be

no objection to the exercise of the power of review when evidence

of illegality under conventional law is clear-cut and incontrovertible;

on the other hand when questions of necessity are raised the courts
may hesitate to make enquiry and “in view of the conditions usually
existing during belligerent occupation... native courts are at best ill
equipped to decide... whether or not a given order or act of an
occupant, conforms to necessity”’.%

95 “Legislative Powers of the Military Occupant under Article ,43 Hague Regula-
tions” )194445( 54 Yale LJ, p. .339
96 Op. cit., p. .224 OT cit.
98 Op. cit., p. .110
99 For a different view as to the competence of the courts of occupied territory
to deny enforcement to legislative acts prohibited by the Hague Regulations, see
Morgenstern, op. cit., pp. ,320 .321
 SUPERVISION BY HIGH COURT OF JUSTICE 143

As far as judgments of military tribunals established in the Admini-

stered Territories to deal with offences against the Security Provisions
Order are concerned, section 35 of the Order in its original version
provided that military tribunals are obliged to abide by the provisions
of the Fourth Geneva Convention in regard to every matter connected
with proceedings and in case of conflict between the Order and the
Convention the provisions of the Convention should prevail Shortly
thereafter this provision was It would appear that military
tribunals were not inclined to regard themselves competent to review

any acts of the military authorities taken under the Order, in the light
of the Fourth Geneva Convention, since they treated the deletion of
the provision about the supremacy of the Geneva Convention as
expressive of the will of the military legislator that henceforth the
Order should be the superior legal norm in the
Whatever may be said about the merits of this view, quite apart
from the fact that decisions of the military courts do not constitute
binding precedents, the question whether some of the provisions of the
Fourth Geneva Convention may still be invoked before the military
courts in support of the reviewability of acts done under the Order, to
the extent to which such provisions constitute binding norms of custom-

ary international law, would still appear to be open. It may also be

argued that it was the object of the above-mentioned deletion to pre-
clude the automatic applicability of the provisions of the Convention as

norms established thereby rather than to pronounce upon the total

inapplicability of rules declaratory of international law to the extent
to which they have been incorporated in the Convention and to deny
their precedence over military legislation in case of conflict. Some of
the relevant decisions appear to be misconceived in failing to give

proper weight to the limitations and prohibitions imposed by inter-

national, law upon the legislative power of the military government.
On the other hand, attention should be drawn to the decision of
the Claims Tribunal, already referred to, in which international law

was held to be binding, with the result that if it was concluded that
the Military Commander had exceeded his authority, the Tribunal

was not only entitled and competent but also obliged to pronounce
upon the invalidity of the legislation involved.

100 P. & O. (Judea and Samaria), Vol. I, p. .5

101 See ibid., Vol. ,2 p. .303
102 Cf. Drory, The Legislation in the Area of Judea and Samaria ,)1975( pp. .6070
 144 E. NATHAN

Be the competence of military or indigenous courts to review legislative

acts of the military administration as it may, a discussion of the matter in

the present context would be largely academic and of little bearing on
the question of the competence of reviewability of such acts by the
Supreme Court. For that Court, the Israeli military administration is

a public authority set up under Israeli Law. Accordingly the Court

would not be subject to the restraints ordinarily attaching to an in-
digenous court (or to a military tribunal) in occupied territory when
exercising its power or purported power to review the acts of the
military government. Moreover, whenever such acts have been reviewed
by local courts it has had little practical effect, because the local court
could only make its pronouncement within the context of a collateral
attack upon the validity of the acts in issue for which reason the
decision would only bind the actual parties.
The Supreme Court exercises its personal jurisdiction over the
Military Commander in accordance with section 7 of the Courts Law,
which from the point of view of Israeli law is the source of its reviewing

power. In this respect the Court is certainly in a different position from

either a local court or a military tribunal exercising jurisdiction within

an area subject to the control of a Military Commander. The substan-

tive law in accordance with which the review is exercised is the law
to which the Military Commander is subject in that area. This law,
however, is not only the law in force upon the assumption of control
by the IDF and the security legislation enacted thereafter, but also
international law to which a Military. Commander is subject in the
exercise of his authority. The Military Commander is an organ of the
Israeli executive branch of government and as such, in contemplation
of Israeli municipal law, exercises his military authority. Since the
binding rules of customary international law form part of the law
of Israel, they accompany the Commander and become part of the
system of law by which the Supreme Court will be guided in reviewing
the exercise of his legislative and executive powers.1*
In the judges commented obiter on the nature of the

103 Cf. Interpretation Order (Judea and Samaria) 1967 Coll. P. & O. (Judea & Sama-
ria), Vol. I, pp. ,272 for the definition of the terms ”waL“ and “Security
Enactments”’.
Stampfer ‫ל‬. Attorney-General, above note ,10 (per Cheshin DP), for the
opinion that the term ”waL“ in section 3 )b( of the Criminal Code Ordinance,
,1936 includes the generally accepted principles of international law.
105 Above note ,10 at pp. ,176 ,177 ,179 ,180 ,183 .184
 SUPERVISION BY HIGH COURT OF JUSTICE 145

legislation of the Military Commander and the extent of the Court’s

power of review in the light of international law. According to Landau

J., whilst this legislation is in the nature of “principal legislation” in the
Administered Territories, it was not of binding legislative force for the
Court and in reviewing it the Court should proceed in the manner that
it does when the exercise of the powers of an administrative authority
is in issue, i.c., in accordance with the norms voluntarily laid down
by that authority. Hence, no conflict between municipal law and the
tules of customary international law could arise and the Court could
therefore examine the propriety of such legislation in the light of
customary international law. In the opinion of Witkon J., the Military
Commander is both under Israeli law and under international law the
sovereign legislator; his legislation is “principal legislation” and as
the Supreme Court should for the purposes of review be deemed to be

a court sitting in the Administered Territories this legislation is also

to be treated as ”lapicnirp“ which the Court is not competent to ques-
tion or examine in the light of international law. In the view of Kister
J., the legislation of the Military Commander is principal legislation,
the Military Commander himself being the source of his legislative
authority, but since he is bound by the restrictions imposed under
international law, the Court will not lend its assistance to any unlawful
legislation.
Since the observations of the learned judges (all of which were obiter)
appear to be somewhat at variance with each other, one may be permitted
to offer a few comments.
Before coming to any conclusions as to the nature of the legislation
of the Military Commander the meaning of the terms “principal legis-
lation” and “sovereign legislation’? need to be clarified within the
context of the status of the Military Commander. In accordance with
section 8 of the Interpretation Order (Judea and Samaria) .oN( )130
security legislation enacted by the Military Commander is the supreme
legislative norm in the Area. But the distinction between principal and
subsidiary legislation, which is an integral part of the democratic system
of government in Israel (under which the former is the legislation of
the Knesset and the latter the administrative rules promulgated by the
Minister to whom the power has been delegated by the Knesset) is of
little point in the system of military government in force in the Admin-
istered Territories under which absolute legislative and administrative
power is vested in the Commander who can at any time delegate any
16 E. NATHAN

such power and withdraw or terminate the delegation, there being no

separation between the executive and legislative branches of government.
The Supreme Court in reviewing legislation of military government
would, it seems, in the first place assign the legislation in question to
the category to which it belongs under the laws of the Area. In
other words, if according to local law any legislation is primary there,
in the sense that it is the supreme legislative norm, it would be treated

as such by the reviewing Court. The legislation of the Military Com-

mander is supreme in his Area in the sense that no rival or
competing legislative authority exists there. That alone, however,
does not mean that he is an independent sovereign legislator not
subject to any legal True, his legislative powers are not
directly derived from and accordingly have not been defined in Israeli
law, and in this respect at least they are not comparable with the

powers of the colonial legislatures of the British Empire that were

sovereign within limits defined by various imperial statutes. On the
other hand, the legislative power of the Military Commander is not
sovereign primarily because his is a de facto sovereignty circumscribed
by the powers conferred and the limitations imposed by international
law. It has been said that the right of legislative powers of a state is
exercised by virtue of its sovereignty which also determines the extent
of their exercise. Jurisdiction as an aspect of the sovereignty of the
state is co-extensive with and also limited by state When
therefore the sovereignty of a legislator is only de facto and temporary
and from its very inception limited by external norms, the legislator
(in contradistinction to a truly sovereign legislator) is not, in respect
of his internal power or constitutional capacity, free to legislate in
whatever manner and for whatever purpose he
Indeed, the exercise of complete and unrestricted powers of legisla-
tion by a military government would be incompatible with its status

as subject inherently to the restrictions and limitations imposed by

the external source of international law.
Some analogy may be drawn from the examination by courts of
third )lartuen( states of the legislative acts of a military occupant.
Under English law (which in this respect is also followed in Israel)

106 Cf. Wade and Phillips, Constitutional Law (8th ed.), p. .52
107 Dicey, The Law of the Constitution (10th ed.), p. .50
108 Jbid., p. .61
109 Cf. F.A. Mann, op. cit., pp. ,9 ,16 .30
 SUPERVISION BY HIGH COURT OF JUSTICE 147

the courts will refuse to investigate the validity of the acts of a foreign

state done within the latter’s own territory."° On the other hand it
seems that in view of the limited authority of military government,
courts of third )lartuen( states, while giving effect, in cases where the
law of the occupied territory applies, to legislative measures taken in
accordance with international law, will not do so where such measures
overstep the limits imposed by international law upon the legislative
power of the military Thus the latter is not co-extensive
with the legislative power of a sovereign legislator.
In the Supreme Court of Israel the legislative acts of the Military
Commander, although done outside the ferritorial jurisdiction of the
Court, will not be treated in the same manner as legislation of third
states, owing to the amenability of the Military Commander to the
personal jurisdiction of the Court.
If the courts of third states find themselves competent to examine
the validity of legislative acts of military authorities in territories not
occupied by their state’s own forces (these acts not being regarded as
legislative acts of an independent sovereign), an Israeli court would
certainly have power to review acts of the State’s military authorities,

as acts of authorities appointed under Israeli law, and examine whether

they are legally valid in accordance with international law.
The learned editor of the BMML states that “in any case the
government established by the military occupant is a government im-
posed by the necessity of war and so far as it concerns the inhabitants
and the rest of the world the laws of war alone determine the legality
of its acts.” In view of this, the Supreme Court would again be com-
petent to determine the legality of the acts of the Military Commander
in the Administered Territories under the laws of war to which he is
subject.

Wade and Phillips, op. cit., p. ,53 relying, inter alia, on Luther v. Sagor
[1921] 3 K.B. ,532 where at p. ,548 Warrington LJ refers to the judgment of the
Supreme Court of the United States in Oetjen v. Central Leather Company (per
Clarke J,) 268 U.S. ,297 ,303 in which the judge said: “Every sovereign state is
bound to respect the independence of every other sovereign state and the Courts of

One country do not sit in judgment over the acts of the government of another done
within its own country”.
Morgenstern, op. cit., p. ;320 McNair and Watts, op. cit., p. ;338 Quincy
Wright, “The British Courts and Ethiopian Recognition” )1937( 31 AJIL, pp. ,683
687 .n( .)12
112 At para. .518
| 18 E. NATHAN

The conclusion is, therefore, that when the Supreme Court reviews
legislation of the Military Commander in this manner, it does so for
the purpose of ensuring that his legislative powers have been exercised
in conformity with the laws of war as the minimum standard prescribed
by international law and by the dictates of humanity.
Landau J. observed in that in reviewing the acts of the
Military Commander, the Court will be guided by the same criteria
by which it examines the conduct of an administrative authority, i.e.,
in accordance with a norm voluntarily laid down by that authority.
The Court has discussed its power of reviewing the conduct of admini-
strative authorities acting under such norms, inter alia, in Nokhimovsky

v. Minister of Justice, Schneider and Welt v. Director of Development

Authority and Adetto v. (all referred in the cited judge-
ment of Landau J.). The rule which emerges from these decisions is
that an administrative authority upon which discretionary powers have
been conferred by law may lay down principles of policy for the

manner in which its discretion is to be exercised. These principles do

not have the force of law or impose upon officials a legal duty to act
in accordance with them; nevertheless they constitute administrative
guidelines, any departure from which, adversely affecting an interested
party, may give cause for court intervention.
One may well wonder whether the legislation of the Military Com-
mander can really be so viewed. He exercises his legislative power
within a defined legal framework to which he is subject, that of the
laws of war which confer upon him powers and impose restrictions.
His legislation does not lay down guidelines or principles of policy
but legal norms binding upon the inhabitants under his control. Where

norms are established by an administrative authority the Court will

interfere in the event of any unreasonable departure from them. The
criterion of reasonableness would not, it seems, be applicable in a
review of military government legislation. In any event review would
be limited to the question whether the legislation is ultra vires, i.e.,
whether in violation of some prohibitory rule of law or in excess of
the powers vested under international law.

113 Above note ,10 at p. .177

114 Nokhimovsky v. Minister of Justice )1954( 8 PD ,1491 ;1497 Schneider and Welt
v. Director of Development Authority )1959( 13 PD ,891 ;895 Adetto v. Amidar
)1964( 18 PD )3( ,51 .57
 SUPERVISION BY HIGH COURT OF JUSTICE 149

It is difficult, therefore, to see how the legislation of the Military

Commander can be relegated to the category of norms voluntarily
established by administrative agencies. There seems to be no reason
why it should be reduced to a lower category than that to which it
properly belongs in the Administered Territories, bearing in mind that
it is there that the Military Commander exercises his legislative powers.
There remains the question what are the legal principles by which
the Supreme Court will examine the executive acts of the Military
Commander. The Court will apparently apply the general principles
of Israeli law in accordance with which it reviews the exercise of
executive powers by a public authority in Israel, together with any
rules of customary international law that may be applicable. Indeed no
other standard of review can be conceived, notwithstanding that the
acts are effected in an area outside the territorial jurisdiction of the
Court. In exercising its powers under section 7 of the Courts Law, the
Court cannot be guided by any principles other than those usually
applied by it in the examination of similar acts done within the terri-
tory of Israel; and these principles are the basic principles of a liberal-
democratic order of government and the universally accepted principles
of respect for human

F. EXTENT OF POWERS OF REVIEW OF THE

SUPREME COURT

In accordance with Article 43 of the Hague Regulations, military

government legislation may be divided into two categories according
to its main objects—legislation enacted for the purpose of maintaining
security and public order and legislation enacted for the purpose of
restoring and ensuring the civilian life.

.1 Security and Public Order Legislation

The Supreme Court dealt with this category in extenso in Helou. The
facts were that under military government legislation in the Region of
the Gaza Strip and Northern Sinai, Bedouin tribes living in an area in

Fogel v. Broadcasting Authority, above note ,25 at p. .664 In this context,

attention should be drawn to a decision of the U.S. Military Government in
Germany (American Zone) Court of Appeal, in U.S. Military Government v.
Flamme ,)1950( Annual Digest ,415 416 (Case No. ,)137 where it was held that
the courts of an Occupying Power when applying occupation legislation are
entitled to apply principles of their own law.
 150 E. NATHAN

North Sinai south of what was the international boundary of the former
Mandated territory of Palestine were evacuated to another part of
Northern Sinai; the original area was taken over by the Army and
declared a closed area, entry into which being subject to permits issued
by the Military Commander; the tribesmen were permitted entrance
during daytime only for the purpose of cultivating their lands. The
Order providing for the seizure and closure of the area declared that
it was necessary for military purposes. The petition of the heads of the
Bedouin tribes called upon the respondents to show cause why they,
their families and tribesmen should not be permitted to resume resi-
dence in the area from which they were evacuated. The respondents
stated in their affidavit in reply that the measures were necessary in
order to prevent terrorist activity, infiltration and smuggling from Sinai
into the adjoining Gaza Strip, and in order to turn the evacuated area
into a security belt separating the State of Israel and the Gaza Strip
from Sinai. The petitioners argued that the tribesmen were not involved
in any terrorist activity and that the enactment of the order was not
motivated by any genuine security reasons but by political considera-
tions which the respondents had failed to disclose. It was also submitted
that the measures were in conflict with the provisions of Articles 49
and 53 of the Fourth Geneva Convention prohibiting individual and

mass forcible transfers and deportations from occupied territory to the

territory of the occupying power or to that of any other country and
the destruction by the occupying power of property unless absolutely

necessary for military operations, and with Regulation 46 of the Hague

Regulations prohibiting the confiscation of private
In his judgment, Landau J. dealt with the extent to which the
Court will interfere with acts of military authorities in respect of
security matters:

“The extent of the interference of the Court with the action of

military authorities relating to matters of security must needs be

very limited. Such is the position within the area of the State...
The rule that the Court will not substitute its own discretion for
that of an administrative authority will apply with greater force
to a decision regarding the suitability of a soldier to a military
appointment since the superior officers of the soldiers, they and

116 Cf. Articles 49 and ,53 Fourth Geneva Convention and Regulations 23 )g( and
46 of the Hague Regulations.
 SUPERVISION BY HIGH COURT OF JUSTICE 151

no others, are capable of deciding his fitness because of their

expertise and professional experience. This approach is even more
apposite to acts taken for the purpose of achieving an obviously
military objective such as the protection of the Gaza Strip and
the territory of the State from terrorist activity. That is also the
position under international law: ‘If the term military necessity
implies great latitude, and is invoked by way of exercise in justi-
fication of harsh measures, it is because the law of nations itself
permits recourse thereto in case of great need and allows a belli-
gerent commander to be the judge of the existence and sufficiency
of the need.’ ,edyH( International Law, Second ed., Vol. ,3

para. ,608 p. ”.)1802

Landau J. also rejected the arguments of the petitioners which

relied on various provisions of the Fourth Geneva Convention and
the Hague Regulations. Article 49 of the Fourth Geneva Convention

was not in his opinion applicable because the petitioners were trans-
ferred from one area to another within the area of the Military Gov-
ernment and not to the territory of the State of Israel. Articles
65 and 67 of the Convention (prohibiting retroactive penal legislation)

were not applicable because the Court was not in the context concern-
ed with the penal aspect of the Order and these were in fact not
retroactive in nature. Neither could the petitioners invoke Article 46
of the Hague Regulations or Article 53 of the Fourth Geneva Con-
vention because no confiscation of property was involved but land was
taken over and insofar as property may have been destroyed the
prohibition of destruction of property in occupied territory is subject
to the overriding provisions of Article )g(.23 of the Hague Regulations
prohibiting the destruction or seizure of enemy property unless such
destruction or seizure be imperatively demanded by the necessities of

war. This Article has its counterpart in Article 53 of the Fourth

Geneva Convention. The Judge pointed out that the Military Com-
mander was acting within the exercise of the obligations imposed

upon him under Article 43 of the Hague Regulations to maintain law

and public order. These provisions apply not only in a period of active
hostilities but also in the case of suppression of hostile activities within
the Administered Territories.
Witkon J. expressed the opinion that the Court was not competent
to review the legislative acts of the Military Commander in the light
 152 E. NATHAN

of international law, and that accordingly the question of excess of

authority did not arise. He went on to say that as regards the security
aspect, review by the Court was limited to the question whether the
acts involved were prompted by genuine security considerations. Any
military or security acts based upon lawful authority were not jus-
ticiable if the Court was satisfied that they were motivated by security
motives, since such matters, like matters of foreign policy, are not
justiciable. In this case, Witkon J. said, non-justiciability was patent

on the face of the petition, the matter being one committed to the
expertise of the authorities entrusted with the protection of the security
of the State, and as there was no excess of authority on the part of
the Commander and his considerations were genuine considerations
of security, the petition should be dismissed.

Kister J. pointed out that the Court would hesitate to interfere with

measures of the Military Commander taken for the purpose of defending

the security of the area under his control.

In Beth El, the Court (per Landau DP), re-affirmed the principle
that interference with the military considerations of military govern-
ment is very restricted in scope and the Court refused to interfere
with the exercise of the discretion of the Military Commander of
Judea and Samaria in ordering the seizure of private land, certified
by him to be required for urgent military purposes and used or to
be used for civilian settlements.

The Court also held that civilian settlement in the administered

territories may serve—as long as a state of belligerency subsists—real
security purposes both from a tactical and from a strategic point of view
(per Witkon J.), and where military considerations and planning have
prompted the settlement activities and did not serve as a cloak for
the attainment of other objectives, the Court would not substitute its

own political and military opinions for the military considerations of

the authorities entrusted with the maintenance of public order in the
Administered Territories (per Landau DP). Moreover, no clear-cut
distinction can be drawn between the exercise of military powers in
time of active combat and its exercise in time of calm, and if the
seizure of private land in the Administered Territories for the purpose
of establishing a civilian settlement is required for military purposes
in that sense, no contravention of any of the rules of customary inter-
national law was involved.
 SUPERVISION BY HIGH COURT OF JUSTICE 153

In the Matityahu the Court dealt with an Order for the

seizure of private land in the Ramallah Sub-District and held that
military purposes comprise not only tactical and strategic considerations
based on present tendencies but also potential changes that may arise
from dynamic developments in the area. Here the Court was faced
with the conflicting military opinions submitted on behalf of the
contesting parties. The Court (per Landau DP) held that when dealing
with differences of opinion on military-professional questions of
which it has no profound knowledge of its own, the Court will presume
that the considerations of the persons speaking on behalf of the autho-
rities in charge of security in Israel and in the Administered Territories

are genuine, and very strong evidence would be required to rebut this
presumption.
However, in the Eilon Moreh case, the Court held that the military
needs of the Army do not include the general needs of national security
in their wide sense, since such needs are not within the purposes for
which private land may temporarily be seized under Article 52 of
the Hague Regulations.
The Court will apparently not interfere with any legislative measures
of the Military Commander unless they are clearly outside the scope
of his powers or violate a prohibitory rule of the laws of war, and

some rules of the laws of war permit the Military Commander to

deviate from the prohibitory provisions when military necessity so
requires. Moreover the military administrator is both authorised and
obliged to maintain law and order in the area under his control and
the security and lines of communication of his forces, these being
paramount objectives of military government within the context of the
laws of war.
On the power of the military government to take the necessary

measures to maintain security, law and order, von writes:

“The security of the occupying forces requires that close super-

visions must be exercised over the inhabitants of the territory
and that all the attempts to hinder the carrying out of military
operations and the efficient administration of the area must be
prevented by any and all lawful means available to the occupant’s
authorities. As Spaight expressed, it ‘the secret of successful occu-

117 Amira v. Minister of Defence )1979( 34 PD )1( .90 See Appendix.

118 Op. cit., pp. ,224 .264
154 E. NATHAN

pation is really a disciplining of the conglomeration of more or

less disaffected persons who make up the population of an occupied
province’ ,thgiapS( War Rights on Land, p. .)323 Despite the
inherent qualities of hardness and severity military government
must also take account of other considerations. It is perfectly true
that the interests of the occupant are paramount and that every
act and measure undertaken by military government has to be
judged by the yardstick of military necessity and usefulness in
concluding the conflict successfully and preserving order in the
occupied area. A just and reasonable treatment of the native in-
habitants must be regarded as a second and only slightly less
important aim of the occupant, if only because the rules of inter-
national law demand that the military purposes are realised more
easily if the inhabitants of an enemy territory refrain from hostility
and co-operate with the occupant.”

The conclusion of the Court in affirming the very limited extent of

its power of interference with the acts of military government in the
sphere of military security is in conformity both with international
jurisprudence and with the rules laid down by the Court itself in
regard to its power of supervision over acts taken by the military autho-
rities by virtue of emergency powers conferred upon them. Thus
international law permits military authorities in occupied territories

a large measure of discretion in maintaining military security, provided

such discretion is exercised in good faith. Moreover a Military Com-
mander possesses a wide discretion to determine whether a situation
of military necessity exists in which he would be entitled to take

measures prohibited but for the situation of necessity, provided that

the measures taken in that situation of necessity are authorised by
international law and do not exceed any absolute prohibitory rule of
the laws of
It will be recalled that in his judgment in Helou Witkon J. com-
mented obiter that matters of army and security, like matters of foreign
policy, are not capable of judicial determination and that therefore the

119 Cf. Greenspan, op. cit., pp. ,80 ;279 In re Flick and Others, )1947( Annual
Digest, pp. ,266 ;274 Spanish Zone of Morocco Claims, Great Britain ‫לצ‬. Spain
RIAA, ,616 ,645 in which the arbitrator applied principles embodied in the Hague
Convention regarding the Law and Customs of War on Land by way of analogy;
Pictet, above note ,19 p. .302
 SUPERVISION BY HIGH COURT OF JUSTICE 155

petition in question was ex facie non-justiciable. With all due respect,

this may be somewhat too sweeping a statement.
The Court has so far dealt with the question of justiciability regard-
ing both political matters and matters forming part of the executive
discretion of the military authorities.
Jabotinsky v. Weizman'® concerned a petition directed against the
President of the State to impose upon the members of the Knesset a
rotation to form a government until one of them succeeds. The Court
dismissed the petition, holding (following United States precedents)
that the matter was not appropriate for judicial determination, belong-
ing, as it does, to the relationship between the President, the Gov-
ernment and the Knesset, i.e., to the executive and legislative branches,
and if the Court were to grant the relief prayed for, it would
over-step the limits of the powers of the judiciary and enter into the
area assigned to executive action.
In Reiner v. Prime the petitioner asked the Court to
prohibit the entry into Israel of the Ambassador of the Federal Repu-
blic of Germany. The Court dismissed the petition, holding that the
matter was from its very nature non-justiciable, the considerations
relating to it not being judicial but matters of foreign policy which the
Court was not competent to examine.
In Ashkenazi v. Minister of the Court (per Shamgar J.)
held that matters relating to the organisation of the army, its structure,
provision of equipment and its operations are not appropriate for
judicial determination, neither were questions relating to the most
efficient manner for drawing military operational conclusions, all these
being committed to the discretion of the military authorities.
It should be stressed that in Helou Witkon J. did not regard the
petition of the Bedouin as non-justiciable in the way in which English
Courts have held that under Common law “‘the acts of a belligerent
power in the right of war are not justiciable in its own Courts unless
such power as a matter of grace submits to their or
for being acts of state, i.e., acts taken by the State in relation to aliens

120 )1951( 5 PD ;801 1 SJ .75

121 )1965( 19 PD )2( ,485 .487
122 )1976( 30 PD )3( ,309 .318

123 Quotation from the judgment of Lord Parker of Waddington in The Zamora
[1916] 2 AC ,77 .92
 16 E. NATHAN

outside its territory and therefore not subject to review by the

Witkon J. based his opinion on a number of decisions of US courts
which defined in general terms the ambit of non-justiciable matters and

on other decisions in which restrictive measures taken by military autho-

orities against Americans of Japanese origin after the outbreak of

war between the United States and Japan were upheld. One of the
leading decisions in relation to justiciability is Baker v. in
which the US Supreme Court said:

“Prominent on the surface of any case held to involve a political

question is found a textually demonstrable constitutional commit-
ment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy deter-
mination of a kind clearly for non judicial discretion; or the
impossibility of a court undertaking independent resolution with-
out expressing lack of the respect due coordinate branches of
government; or of an unusual need for unquestioning adherence
to a political decision already made.”

On the basis of this decision, an application was denied to disallow

the power of the US Secretary of Defence to issue orders directing
inhabitants of Massachussetts to participate in the Vietnam War owing
to the unconstitutionality of that
The main case dealing with restrictive security measures taken against
Americans of Japanese origin is Hirabayashi v. United States which

was followed in Korematsu v. United Hirabayashi dealt with

the legality of a curfew ordered by the military authorities in a restricted
military area after the outbreak of war between the United States and
Japan and directed against Americans of Japanese ancestry. The Court
held that when the Constitution committed to the executive and to the
Congress the exercise of the War Power, it had necessarily given them

a discretion in determining the nature and extent of the threatened

danger and the selection of the means for resisting it.

124 Buron v. Denman )1848( 2 Ex. ;167 de Smith, op. cit., pp. ,254 .255 For non-
justiciability of political matters, cf. Witkon, Politics and Law )1965( (in Hebrew) :
S. Zemach, Political Questions in the Courts .)1976(
125 369 US ,168 ,210 .217
126 Cf. Massachussetts v. Laird, 402 US .886
127 320 US ;81 323 US .214
 SUPERVISION BY HIGH COURT OF JUSTICE 157

as they did here, the conditions call for the exercise of

judgment and discretion and for the choice of means by those
branches of the Government on which the constitution has placed
the responsibility of war-making, it is not for any Court to sit
in review of the wisdom of the action or substitute its judgment
for theirs.”

In addition, courts will not interfere and substitute their own views
where circumstances within the knowledge of the authorities charged
with the responsibility for maintaining national defense afforded a
rational basis for the decision made and the inferences drawn from
the facts support the judgment of the Military Commander, and there
is adequate support for his findings that there was an imminent danger
of espionage and sabotage to the military resources of the United States
and that curfew was an appropriate measure to meet that danger.
It would appear from these judgments that the US Supreme Court

was far from regarding the taking of military security measures as

being ex facie non-justiciable. Even where such measures were taken
in circumstances of great emergency the Court reserved the power to
review and satisfy itself that the measures were within the lawful autho-
rity of the Military Commander and that there was a factual basis
from which the inference could actually be drawn that the measures

were justified in view of the imminent danger or security risk. It was

only when these prior conditions had been complied with, that the
Court would leave the selection of the measures to be taken and the
determination of the extent of the threatened danger to the judgment
of that authority to which the Constitution has committed this judg-
ment and discretion.
It may be mentioned that criticism has been levelled against the
decisions of the US Supreme Court on the power of review of
military restrictive measures imposed on Americans of Japanese ex-
traction. points out that these decisions created doubts as

128“The Japanese-American Cases—A Disaster” )194445( 54 Yale LJ p. ,489

A.M. Dershowitz, “Preventive Detention of Citizens during a National Emer-
gency—a Comparison between Israel and the United States” )1971( Is YHR p. ,295
arrives at the conclusion that the practice of preventive detention under the
Defence )ycnegremE( Regulations, ,1945 in Israel compares favourably with Ame-
rican practice after the bombing of Pearl Harbour, when more than 100000
Japanese Americans were kept in detention camps for the entire war.
158 E. NATHAN

to the standards of responsibility to which the military power could

be held, the basic question being whether there was reasonable ground
to believe that the security threat was real and the remedy useful. Yet
Rostow observes that the Hirabayashi case still permits some judicial
control over actions purported to be taken by a military authority
and that the measure of control is the same as that exercised over
administrative agencies.
The subject matter of a judicial decision may involve political
elements, including questions relating to foreign relations, but
that does not make the issue non-justiciable if it is capable of judicial
determination and review, in particular where the rights of the indi-
vidual may be affected.
In Bet El, counsel for the State pleaded that the issue before the
Court—the legality of civilian settlement in Judea and Samaria pursuant
to a seizure order which in the opinion of the petitioners violated their
private property rights—was not justiciable because it was a political
question within the competence of the Government and subject to
future political negotiations. The Court rejected the argument and
held that matters of external relations are to be determined by the
executive branch of government and not by the judiciary, but if the
property of a person had been adversely affected or he was unlawfully
deprived of it (which in that case had not been proved), the Court

was unlikely not to interfere simply because the right in question might
become the subject of political negotiations.
Bet El was followed in Eilon Moreh. There the Court (per Lan-
dau, DP) added that military government intending to interfere with
private property rights safeguarded by Article 46 of the Hague Regu-
lations must prove that its acts are justified and cannot absolve itself
from judicial supervision on a plea of non-justiciability.
The Supreme Court has had many opportunities to review the
exercise by military authorities of emergency powers conferred
for the purpose of maintaining security in sensitive areas to which
the Defence )ycnegremE( Regulations, ,1945 enacted by the British
Mandatory Government,
The Court has dealt, inter alia, with Restriction Orders, Orders of
Deportation and Police Supervision Orders issued under Regulation

El-Ayoubi v. Minister of Defence )1950( 4 PD ,222 ;227 Azlan v. Military

Governor of Galilee )1955( 9 PD ;689 Abu Gosh v. Military Commander )1953(
7 PD 941 and many other cases.
 SUPERVISION BY HIGH COURT OF JUSTICE 159

108 of the above Regulations which provides that an Order shall not
be made unless the Military Commander (or the Minister of Defence)
“is of opinion that it is necessary or expedient to make the Order
for securing the public safety, the defence of Israel, the maintenance
of public order or the suppression of mutiny, rebellion or riot”.
Notwithstanding the wide terms in which the Regulations are couched,
and the Court’s restricted power to interfere in view of the subjective
nature of the discretion conferred, it never doubted that the power of
review existed, although limited to three aspects—whether the autho-
rity had exceeded the scope of the power under which it purported
to act, whether it had acted for the prescribed objects, and whether
it had acted in good faith.1%° Subject to these matters it would appear
that the Court may inquire whether a situation existed in which the
Military Commander was authorised to take the action complained
of and whether the action was not taken for an ulterior motive outside
the object for which the power was conferred.
Two decisions of the Court deserve mentioning, which lend support
to the view that it has never thought itself deprived of all power to
review actions taken by Military Commanders in view of the extremely
wide discretion conferred upon them under the Emergency Regulations.
In Azlan v. Military Governor'*! the petition was brought against the
refusal of the Military Commander acting within Israel according to
the Mandatory Defence )ycnegremE( Regulations, ,1945 to issue
entry and exit permits to and from a village which had been declared
a closed area. The Military Government alleged in its affidavit in
reply that security reasons prevented the issue of the permits and
produced a certificate of the Deputy Minister of Defence to the effect
that disclosure of the facts and reasons for the actions taken were
against the security interests of the State. The Court held that the
affidavit was sufficient for dismissing the petition unless the petitioners

130 Cf. El-Ayoubi.

131 Since the date of this judgment, the law in regard to the prohibition of judicial
examination of the plea of reasons’ has been modified by section 44
of the Evidence Ordinance (New Version), 1971 18( LSI ,)421 under which any
matter in respect of which the Prime Minister or the Minister of Defence have
certified in writing that its disclosure is liable to affect the security of the State
will not be admitted in evidence unless a judge of the Supreme Court has, upon
application by a party requesting the disclosure, found that the need for disclosure
with a view to doing justice prevails over the interest in the non-disclosure of the
evidence.
10 E. NATHAN

could show that security reasons were only put forward to provide

a pretext for the refusal to issue the permits, stemming from bad
motives. The Court said that although the alleged security reasons

were suspect, it could not for that alone find that the Commander
had acted in bad faith; on the facts proved, it had not been shown
that he was not prompted by considerations of security. In conclusion
the Court (per Landau J.) said:

“This case once more shows the defects in the laws of evidence,
which prohibit judicial examination of the plea of ‘security rea-
sons’, the examination of these reasons on their merits, and
also of the question whether the plea was raised in good faith.
This necessarily causes a sense of frustration in the individual and
suspicion as to the good intentions of the authorities.”

The second decision is Abu Gosh ‫ל‬. Military Commander where

a Deportation Order against the petitioners from their habitual place

of residence had been made for security reasons. The Military Com-
mander produced a certificate under the hand of the Minister of De-
fence that interests of State prevent disclosure of these reasons. In his
evidence on oath the Military Commander reiterated that only reasons
relating to the security situation in the village had prompted him to
issue the Order and that he was not influenced by any other con-
sideration. The Court held that the certificate did not preclude the
petitioners from cross-examining the Military Commander in order
to elicit that not security but other considerations irrelevant to the
matter had in substance prompted him to act as he did. Speaking for
the Court, Cheshin J. observed:

,ereH“ also, we have to state that no magic attaches to the words

‘security reasons’ and ‘security situations’ and similar expressions
to justify the acts of a competent authority, and prevent the Court
from enquiring into the matter. Should it appear to the Court
that these words serve only as a screen for arbitrariness and unlaw-
ful intentions, it would not hesitate to establish that, clearly and
explicitly in the interest of truth, so that justice be done to the
individual unlawfully injured.”
The Court then decided that for reasons of overriding public
security it could not permit cross-examination of the Military Com-
mander as to the nature of his motives and was inclined to believe
 SUPERVISION BY HIGH COURT OF JUSTICE 161

that the security situation in the village was indeed the basis for the
action taken.
These dicta of the Court of the early fifties lend support to the
proposition that also where the authorities base a decision affecting
the interests of the individual on public security, the Court still has

power to inquire whether the action taken was motivated by genuine

security reasons and not by considerations unlawful or irrelevant to
the object in question. Although these judgments did concern the
exercise of military emergency powers in Israel and not in the Ad-
ministered Territories, the criteria they lay down should, it is sug-
gested, be also applicable generally to the review of powers exercised
im the Administered Territories, subject to the fact that the legal
context within which the powers are there exercised include the per-
missive or prohibitory rules of international law. When, therefore, the
Supreme Court finds that military measures taken under emergency

powers are as such subject to judicial review, and proceeds on the

assumption that their lawfulness is capable of judicial determination
(subject to the limitations attaching to reviewing power) the Court
will not raise the question of non-justiciability.
The Court has repeatedly held that in matters involving military
considerations, its scope of supervision is limited. Nevertheless, it will
interfere when satisfied that acts authorised by the Military Commander
and purportedly required to be taken for military purposes have been
prompted by considerations dominated by extraneous and_ political
motives, as when private property rights are violated contrary to the
provisions of Article 52 of the Hague Regulations. This was the
rationale of the decision in the Eilon Moreh case.
There the Military Commander of Judea and Samaria issued an
Order for the seizure of private land in the village of Roujeib (near
the town of Nablus) in which he certified that the land was required
for military purposes. The object of the Order was to establish on the

a civilian settlement. In accordance with the criteria established

in Bet El the Court inquired whether the seizure could be justified as
being required for military purposes within the meaning of that term
under Article 52 of the Hague Regulations. The Chief of the General
Staff filed an affidavit stressing the importance of the settlement in the
particular location from a military point of view and emphasized that
the seizure of the land was in accordance with military requirements.
The Order was issued pursuant to a decision of the Government at a
 2 E. NATHAN

meeting which had before it the opinion of the Chief of the General
Staff supporting the establishment of the settlement.
The Court held that, notwithstanding that the Government may be
taken to have considered that opinion, and although the Court was
satisfied that the Chief of the General Staff genuinely believed that the
seizure was required for military purposes, the Order was unlawful
because it appeared from the evidence that the predominant purpose
of the Government was political and that the decision was taken in
deference to pressure exerted by the “Gush Emunim” group and that
only subsequent to the initiative of the political branch was the sanction
of the military authorities obtained. Since military considerations were
in this case subordinate to political considerations and the decision of
the Government would not have been taken but for the pressure of
“Gush Emunim” and for the political and ideological reasons which
in fact prompted it, the fact that the issue of the Order was motivated
also by military considerations was not sufficient to uphold its legality.
The Court also held that the Order was void because the settlement

was intended to be of a permanent nature, but the essence of military

government was only to establish facts for military purposes until the
termination of military government, and where the seizure of private
property is to be permanent it results in a permanent deprivation of
private property for other than military purposes.
The conclusions of the Court in regard to the dominant motive which
prompted the issue of the Seizure Order should be distinguished from
the conclusions it reached in Bet El.
There counsel for the petitioners (the landowners) contended that
the establishment of civilian settlements did not stem from military
considerations but from other extraneous considerations. The Court
held, however, that where an authority acts bona fide for a defined
object authorised and justified by law, it will not invalidate the act for
the reason only that an additional object accompanies the act, which

may raise doubts as to whether the act was in fact done for the object
defined by law. In Eilon Moreh, on the other hand, the Court (per
Landau DP), referred to plurality of purposes and held that if two or

more are intended and only one of them is lawful, the legality of the
act will be determined by the dominant purpose, which in that case
was the purpose desired by the political branch of Government that
had initiated the establishment of the settlement and not by the mili-
tary branch.
 SUPERVISION BY HIGH COURT OF JUSTICE 163

_ The exercise of a measure of judicial control and supervision over

implementation of military measures taken for security purposes,
-
er the serious limitations attaching to it, is of special importance
tegard to such measures taken in the Administered Territories. The
fact that during the last two centuries a considerable body of
and conventional rules has crystallized in the sphere of

- laws of war in general and the law of belligerent occupation in

perticular for the purpose of securing minimum standards of inter-
law and humanitarian conduct in a sphere marked by wanton
Greaches of these rules, certainly proves that even in matters of secu-
the powers of military authorities are subject to the restrictions
by legal norms establishing binding rules of conduct upon
belligerent.
In conclusion it may be said that notwithstanding the severe restric-
attaching to the power of reviewing military measures taken for
| Security purposes and in spite of the fact that the Court will examine
the policy of the Military Commander nor the efficiency of the
manner in which that policy is carried into effect (and thus will not
_ €xamine whether particular methods for combating terrorism might not
properly be replaced by another method, and substitute its own discre-
tion for that of the Military Commander), the measures as such are
and the Court may inquire whether they are authorised by
law, whether they are taken bona fide (and not for any ulterior
Motive) for the object authorised by law, and whether the conditions
for the lawful exercise of the powers conferred did in fact exist.

.2 Legislation in the Sphere of Civil Life

This aspect of military rule was reviewed in extenso in Almakadssa

‫ש‬. Minister of Defence. In this case the Court dealt with a legislative
measure of the Military Commander in Judea and Samaria to fill a
lacuna in the Jordanian Labour Law of 1960 in order to set up and
put into operation arbitral machinery for the settlement of labour
disputes in the area of Bethlehem. The petitioners pleaded. inter alia,
that the measures introduced in order to settle labour dispute between
local employers and employees was ultra vires the Military Commander
under Article 43 of the Hague Regulations. Counsel for the State
declared that whilst he would not question the competence of the Court
to test the exercise of the legislative powers of the Military Commander
164 E. NATHAN

in the light of the Hague Regulations, he contended that the Com-

mander was acting in full conformity with the provisions of these Regu-
lations. In its judgment the Court analysed the legislative powers of a
military government under Article 43 and the circumstances in which
it may alter existing laws. Article 43 in its binding French text which
formed the basis of the judgment of the Court provides as follows:

“Article 43 L’autorité de pouvoir légal ayant passé de fait entre

les mains de l’occupant, celui-ci prend toutes les mesures qui
dépendent de lui en vue de retablir et d’assurer, d’autant est
possible, l’ordre et la vie publique en respectant, sauf empéche-
ment absolu, les lois en vigueur dans le pays.”

The Court (by a majority judgment of Sussman DP and Kahan J.)

held that where military occupation continues for a long time until the
establishment of peace, it was the duty of the occupant towards the
civil population to alter existing laws since the needs of society change
in the course of time and the existing laws must be adapted to these
changes. In the opinion of the Court the test of whether the military
legislator acted within his authority would be, what were his motives.
Did he legislate to promote his own interests or the welfare of the
civilian population (la vie publique) mentioned in Article ?43 Thus
legislation which has no connection with the welfare of the population
would exceed the powers of the occupants. As for the meaning of
the expression “empéchement absolu’’ in Article ,43 the Court held
that they should be construed as referring to the absolute duty of
the occupant towards the inhabitants in administered territory, including
the obligation to regulate economic and social matters. The conclusion
of the Court was that whenever the laws in force in the Administered
Territories completely prevent the Military Commander from fulfilling
his duties towards the inhabitants this would be “‘an absolute prevention”
empowering him to alter these laws. In the specific case under review
the Military Commander did not exceed his authority because he
had only supplemented the Jordanian Law failing which that law would
have been inoperable.
In a dissenting opinion, Cohn J. said that the duty of the Military
Commander “to restore and ensure public order and civil life” in 6
terms of Article 43 of the Hague Regulations meant the restoration
of public order and civil life as they existed prior to the war and not
to the establishment of a new public order. For this purpose existing law
 SUPERVISION BY HIGH COURT OF JUSTICE 165

should be implemented and only if and to the extent that there was “an
absolute prevention” to restore public order without altering such law
might it be altered. In the opinion of Cohn J. “to restore and ensure”
should be read jointly, it is the duty of the occupant to restore
public order and to ensure its maintenance in the future and any
measures required to ensure the maintenance of public order may
not alter the nature of that public order which had previously been
restored.
The Military Commander was not authorised to impose an ideal
order or an order which appears to him to be better and more just.
He was authorised to restore that public order which existed in the

area previously and also to ensure its maintenance in the future.

Support for the basic proposition of the judgment that military govern-
ment is authorised to alter existing laws when the economic and social
situation and the needs of the population so require or when occupation
is prolonged can be found in international jurisprudence.1%2
It should also be emphasised that since 1907 when the Hague Regu-
lations were adopted, life has not remained at a stand-still and the
state has come, by means of legislation and otherwise, to intervene to
an ever-growing extent in the regulation, control and supervision of
social and economic conditions.
The judgment adopted the test whether the Military Commander
was acting for the benefit of the population or solely for the promotion
of his own ends. It is doubtful whether this is the proper test, since it
may unduly extend the application of the saving clause in the Article
(sauf empéchement absolu) for a situation can hardly be conceived
where far-reaching reforms of private law in the Administered Terri-
tories could not be authorised under that clause. The military autho-
rities to not generally interfere with private law relating to family
relations, inheritance, obligations and the like (as distinct from public
law relating to the regulation of the economic situation in the sphere
of customs, health, public or criminal law affecting general security,
the suspension or abolition of constitutional or administrative law in-
consistent with military government or military occupation). Yet in
accordance with the test proposed by the Court, any legislation enacted

132 Cf. Schwenk, op. cit., p. ,399 relying on Leurquin, The German Occupation in
Belgium and Article 43 of the Hague Convention; City of Malines v. Société
Cenrale pour l’exploitation du gaz ,)192526( Annual Digest Case No. ,326
and other cases referred to in the judgment of the Court.
16 E. NATHAN

ostensibly for the declared object of improving existing private law

could be considered to be within the authority conferred upon military
government under Article .43 One doubts whether such a test would
be in conformity with the intentions of the Article. The general principle
expressed in the Article is rather that existing law should remain in
force unless changed circumstances, in particular changes in economic
and social conditions, or the security requirements of the military
authorities necessarily demand changes and to the extent only that it
is sO necessary.
The question now arises, as to the meaning of sauf empéchement
absolu, upon which alone military government competence to change
existing law is conditional. If a too literal meaning is given to the
phrase, it will become altogether meaningless because an occupant is
never absolutely prevented from respecting the law of the occupied
country.!*3 It has therefore been given the meaning of “absolute neces-
sity” or “sufficiently justified” or some other less rigid meaning. In this
context the definition in paragraph 523 of Part 3 of the BMML of the
powers of a military occupant to alter and repeal laws in accordance
with Article 43 of the Hague Regulations may be quoted:

“If the exigencies of war, the maintenance of order, or the

welfare of the population so require, it is within the power of
the occupant to alter or suspend or repeal any of the existing
laws, or to promulgate new laws, but in occupied territory possess-
ing an adequate legal system in conformity with generally rec-
ognised principles of law important changes should be avoided

as far as possible. It is however, in accordance with the proper

functions of the occupant to issue regulations fixing prices and

secure the equitable distribution of foodstuffs and other com-

modities... He will naturally alter any law, the application of
which would be detrimental to his military interests.”

Attention may also be drawn to the provisions of Articles 64 of

the Fourth Geneva Convention of ,1949 supplementing the provisions
of Article 43 of the Hague Regulations and laying down the powers
of the military occupant in regard to the circumstances in which penal
laws may be suspended or repealed and measures taken for the
maintenance of orderly government and security.
It would appear (with reference to the dissenting opinion of Cohn

133 Cf, Schwenk, op. cit., pp. ,398 ;400 Dinstein, op. cit., p. .509
 SUPERVISION BY HIGH COURT OF JUSTICE 167

) that the terms restore” and “to ensure” should be read alter-
ively rather than jointly because otherwise a military occupant
be prevented from exercising any legislative power to ensure
order and civil life when they have remained undisturbed, whilst
the other hand he could restore public order and civil life only

en they have been disrupted.

In Almakadssa the competence of the Court to review legislative

easures taken for the purpose of restoring and securing civil life
‘wes not contested by counsel for the State and the question of the

of such power of review where legislation of ”livic“ nature is

still remains open. Whilst von points out “that
_@m occupant is essentially the only judge of the need to change, suspend
amend the laws of the occupied territory” (and therefore, in his
the occupant’s decision is final during the occupation and
be reviewed by the courts of the occupied territory) other
_ writers regard legislative measures taken in disregard of the limitations
imposed by the Hague Regulations as ultra vires and absolutely void.1*5
A more proper and convenient test might be whether the legislative acts
_ of the Military Government were prima facie within its legislative

competence or manifestly outside the scope of that competence.

Surely if the test of ”ytissecen“ or “absolute necessity” was to serve

as a yardstick for reviewing legality, military government, as the admin-

istering authority of the area, is under Article 43 invested with the
discretion for determining whether the necessity in question does in
fact exist. And the Supreme Court would not, it is suggested, interfere
with the exercise of such discretion and substitute its own discretion
for that of the Military Commander unless it was exercised for
objects for which it was not conferred or the legislative act was done
in bad faith, and of course if the measure manifestly exceeded the
restrictions imposed upon the exercise of the power under international
law.
The only other occasion on which the Supreme Court reviewed the
legislative power of the Military Commander involving civil life was
in the case of Electricity Company for the Jerusalem District v. Minister
of where the Court held that the powers and rights of
military government were defined by military needs on the one hand

134Op. cit., pp. ,145 .170

135 Cf. Morgenstern, op. cit., p. .320
136 )1973( 27 PD )1( .124
168 E. NATHAN

and on the other by the need to ensure as far as possible the ordinary
life of the local population. Subject to these needs, military government
must respect existing laws and the vested rights of the inhabitants in
the area under its control.
The Court held that an Order of the Military Commander of Judea
and Samaria to provide for the supply of electric power through the
Israel Electricity Company was made for the benefit of the local popu-
lation which had to rely until then on the restricted supply of electricity
by generators and was not in violation of internal or local Jor-
danian law.
Other decisions of the Court have not raised questions of principle

or of particular interest insofar as the scope of this enquiry is concerned.

It has dealt, inter alia, with petitions to transfer a murder trial from
the Military Court in which it was pending to a local court, following
instructions by the Military Commander that the trial should take place
in the Military Court, petitions to grant permits for permanent resi-
dence in the area, Orders of Deportation, permits and licences, and
petitions relating to unlawful imprisonment.

G. CONCLUSIONS

.1 Since the Military Commander in the Administered Territories

exercises his powers under Basic Law: The Army, the Supreme Court
sitting as a High Court of Justice has personal jurisdiction under
section 7 )b( )2( of the Courts Law, ,1957 to order him to do or
refrain from doing any act in exercising his functions.
.2 The Court, in so doing, does not exert jurisdiction over the
Administered Territories, nor violate any rule of international law,
having regard to the fact that Israel sovereignty has not been extended
to these territories.
.3 The Court’s jurisdiction to review the acts of the Military Com-
mander can also be based on the general power conferred upon the
Court under Section )a(7 of the Courts Law to deal with matters in
which it deems it necessary to grant relief in the interests of justice.
.4 Irrespective of the question of the applicability of the Fourth
Geneva Convention of 1949 as such in all or any of the Administered
Territories, the powers of the Military Commander are subject to the
relevant rules of customary international law embodied in the Hague
 SUPERVISION BY HIGH COURT OF JUSTICE 169

Regulations annexed to the Fourth Hague Convention of 1907 and in

‘some of the provisions of the Geneva Convention.

.5 The Military Commander is the supreme legislative authority in

the Administered Territories but not a sovereign legislator in the

sense of his legislative power being exclusive and independent from

any external norm.
The Supreme Court is competent to review the legislation of the
_ Military Commander in the light of the generally accepted rules of
customary international law to the extent to which they are enshrined
m the above Conventions.
.6 The Court’s power of review is limited to declaring ultra vires
legislation manifestly exceeding the powers of the Military Commander
but the Court will not interfere with the exercise of his discretion in
determining whether conditions necessitating the exercise of such

powers exist unless the discretion is exercised in bad faith or not

for the objects for which they were conferred.
In reviewing legislation enacted to maintain security, the Court will
impose upon itself a larger degree of restraint than it does in regard
to measures for other objects.
.7 In reviewing the executive acts of the Military Commander, the
Court will, apart from the rules of international law, be guided by the
general principles of Israeli Administrative law which it applies to
the administrative acts of public authorities in Israel.
.8 The Court would appear to be competent to deal with petitions
in the nature of habeas corpus.
.9 The Court would appear to have no supervisory jurisdiction
in regard to proceedings held before courts or tribunals in the Adminis-
tered Territories.
 CHAPTER V

THE MILITARY COURTS

Zvi Hadar*

A. INTRODUCTION

The purpose of this study is to describe the constitution, jurisdic-

tion and mode of operation of the military courts in the areas admin-
istered by Israel since the Six-Day War. Owing to the wide scope of
the subject, attention is focused on the main features without going
into unnecessary details and technicalities. Thus, for example, when
relying on the Orders of the Military Commanders in the different
Regions, reference has only been made to the Orders relating to Judea
and Samaria, since similar Orders were issued in the other Regions.
Again, when some legal situation is delineated, its history and develop-
ment throughout the whole period of Israel’s rule has not always been
elaborated but rather its characteristic features noted. The basic legal
document in this work has been the Security Provisions Order in its
Consolidated Version of 1980 (hereinafter called “the SPO”). Pro-
minent place has been given to the judgments and practice of the
military courts and the relevant provisions of the Orders of the
Regional Commanders upon which the legal basis of their operation
is founded. Frequent reference has been made to the Fourth Geneva
Convention and to other principles of international law since it is
instructive to compare Israeli practice with the provisions of interna-
tional law which forms its background. Important sections of the
Orders of the Regional Commanders relating to the military courts,
the argumentation of the parties at trials heard by the military courts
and the ratio of the judgments handed down will be seen to be based

on these provisions.

* Ph.D., Former Military Advocate General of the LD.F. The views expressed in
this article are the author’s and are not necessarily those of any Israeli official
authorities.
171
 172 Z. HADAR

It is hoped that Israeli experience may contribute to the better

understanding of the problems and the required solutions in this
field of international law.

.1 The Essence of the Rules relating to Military Jurisdiction

The existence of rules concerning the trial of persons in territories
occupied in consequence of military operations limits the power of the

army in the total use of the means available for achieving its objectives.
On this view, rules relating to military jurisdiction in occupied terri-
tories constitute a bill of rights in favour of such persons, defining
the behaviour required of them, the sanctions that may be taken for
disobedience and the manner in which the military government will
enforce its demands upon them.
This understanding of the rules relating to military jurisdiction in
occupied territories is valid when the policy of the military government
is to refrain as far as possible from detaining suspects in the territory
by administrative procedure but rather to try them by due process in
its military courts for specific offences, to release them on
and, in case of conviction not to inflict excessive punishment. All this
has been the practice in the territories administered by Israel. The
publication by a military commander of rules subjecting enemy per-

sons in the territory to military jurisdiction indicates a critical stage

in the development of military operations. A party to an armed con-
flict who publishes such rules declares that with regard to those per-

sons to whom its rules of military jurisdiction are applicable, armed

military operations have come to an end and that henceforth the

measures taken against them will be limited by the legal conditions

and restrictions contained in these rules.

.2 The Basic Provisions of International Law relating to Military

Jurisdiction
The provisions relating to the trial of enemy persons by the military
courts of their adversary during armed conflicts form part of the
international law of war and, more specially, the law of belligerent
occupation. As such, these provisions have undergone considerable

1 See Z. Hadar, “Administrative Detentions Employed by Israel,” )1971( I Is. YHR

283 and A. Dershowitz, “Preventive Detention of Citizens during a National
Emergency: a Comparison between Israel and the United States,” ibid., .295
 MILITARY COURTS 173

development since the inception of modern international law of war

at the end of the last century.

No specific provisions in regard to the trial of enemy persons can
be found in the Hague Regulations. Only from Article 12 of the Regu-
lations, dealing with recaptured prisoners of war, and from Article 30
dealing with spies, do we learn about the contemporary custom of
trying enemy persons. This assumption by the Regulations of the
custom of trying enemy persons by the courts of their adversary, with-
out going into the details, is based on the important principle declared
by the preamble of the Fourth Hague Convention concerning the Laws
and Customs of War on Land, ,1907 as follows:

“Until a more complete code of the laws of war can be drawn up,
the High Contracting Parties deem it expedient to declare that, in
cases not covered by the rules adopted by them, the inhabitants
and the belligerents remain under the protection and governance
of the principles of the law of nations, derived from the usages
established among civilized peoples, from the laws of humanity
and the dictates of the public conscience”.

In other words, it seems clear from the Hague Regulations that an

established custom exists, based on the principles of international law,
for trying enemy persons. The content of this custom is not elaborated
and no restriction is imposed other than that mentioned in Article 30
of the Regulations, which requires that “a spy taken in the act shall
not be punished without previous trial”.?
The Fourth Geneva Convention contains several Articles dealing
with the trial of the civilian population in occupied territories by the
courts of the Occupying Power. These Articles form the nucleus of a
code in this respect, which the Contracting Parties undertook to apply
in the relevant circumstances.
It seems appropriate to cite here two important Articles of the
Geneva Convention, which are relevant. Article 66 states that:

“In case of a breach of the penal provisions promulgated by it by

virtue of the second paragraph of Article ,64 the Occupying
Power may hand over the accused to its properly constituted, non-
political military courts on condition that the said courts sit in

2 See also the BMML paragraph .334

 4 Z. HADAR

the occupied country. Courts of Appeal shall preferably sit in the

occupied

Article 66 is closely related to Article ,64 second paragraph, which

delimits the authority of the Occupying Power to enact penal pro-
visions applying to the population of the occupied territory, the breach
of which will be tried by these military courts:

“The occupying Power may, however, subject the population of

the occupied territory to provisions which are essential to enable
the Occupying Power to fulfil its obligation under the present
Convention to maintain the orderly government of the territory,
and to ensure the security of the Occupying Power, of the members
and property of the occupying forces or the administration, and
likewise of the establishments and lines of communication used
by them”.

Articles ,65 ,67 ,68 ,70 ,71 ,72 73 and 75 of the Fourth Geneva
Convention contain further provisions regarding the authority of the
Occupying Power to promulgate penal provisions applying to the
local population and subjecting them to the jurisdiction of its military
courts.
As the establishment of military courts and the publication of penal
provisions are recognized by international law as the means by which
the Occupying Power may enforce law and order in the occupied terri-
tory, it is intended to describe and examine the specific manner in
which Israel has used these powers in the territories administered by
her after the Six-Day War in ,1967 and to explain the content of
the provisions issued by the Israeli Military Commanders concerning
these powers and how these provisions were dealt with and applied
by the military courts constituted by the Military Commanders.

.3 Israel and the Geneva Conventions

The official position of the Government of Israel, from the strict
legal point of view, is that the Fourth Geneva Convention does not
apply to the territories administered by her since ,1967 although Israel
does recognise her duty to act toward the civilian population of the
territories as far as possible according to the humanitarian principles
embodied in that Convention.*

3 See M. Shamgar, “The Observance of International Law in the Administered

Territories”, )1971( I Is. YHR .262
 MILITARY COURTS

This policy of applying de facto the humanitarian principles of the

va Convention and other recognised rules of international law is

scted, inter alia, in the enactments issued by the Israeli Military
manders of the Areas, dealing with the penal provisions applied
the local population and with the military courts established to
them.*
Ik should be added that the Fourth Geneva Convention, as well as

sr principles of international law, are usually referred to and relied

@pon in the military courts both by defence counsels and by prosecutors,
ged that the military courts examine the provisions of the Geneva
@onvention and principles of international law on their merits and
bese their conclusions upon them in the appropriate cases.°

4 Military Courts in the Law of Israel

has long experience of living with rules relating to military
courts and offences, which have set an example for similar enactments
issued by the Israeli Military Commanders of the above mentioned

areas.
In ,1945 the British Mandatory Government in Palestine, which
preceded the State of Israel, issued the Defence )ycnegremE( Regu-
lations 1945 (hereafter called “the Defence Regulations”) applicable
to the whole of Palestine. The Defence Regulations provided the
Mandatory Government with effective legal means to fight organised
armed dissidence among the Jewish population of the country. The
Defence Regulations replaced former Regulations, enacted in 1936
to help contain Arab insurgence in Palestine, which were based on
British experience elsewhere. With some important amendments, the
Defence Regulations are to this day part of the municipal law of
Israel, which it inherited from the Mandatory Government together
with other enactments. A prominent chapter of these Regulations deals
with military courts and their jurisdiction. These courts operate along-

4 This attitude of Israel to the Fourth Geneva Convention did not apply in regard
to the Third Geneva Convention relative to the Treatment of Prisoners of War,
to the application of which the Government of Israel had no reservations.
5 However, the Israeli High Court of Justice, in Suliman v. Minister of Defence
)1979( 33 P.D. )2( ,113 decided that the applicants were not entitled to rely on
the Fourth Geneva Convention in an Israeli court, as the pertinent provisions of
this Convention, in contradistinction to the Hague Convention and Regulations,
represented only conventional and not customary international law and therefore
were not part of Israeli law.
 176 Z. HADAR

side the ordinary civil courts and they try cases in which the accused
is charged with a security offence as defined by the Regulations. They
should be distinguished from Courts-Martial set up in Israel by the
Military Justice Law, ,1955 to try soldiers charged with military or
ordinary criminal offences.

‫כ‬. The Defence Regulations and Military Courts in the Administered

Territories
The Defence Regulations in force in the Gaza Strip and on the west
bank of the river Jordan in ,1948 when the British Mandatory Gov-
ernment left Palestine, were never annulled either by the Egyptian
authorities in the Gaza Strip or by the Jordanian Military )194850(

or Civil Government )19501967( in the West Bank. Thus, when

the Israeli army entered these areas in ,1967 they found the
Defence Regulations an integral part of the two local legal systems.
During Israel’s rule in the Gaza Strip no serious doubt has been raised

as to the validity of the Defence Regulations. On the other hand,

defence counsels in the military courts constituted in Judea and Samaria
have claimed in some cases that the Defence Regulations are not in
force as part of the local Jordanian Law, but these contentions have
been rejected® after examination of the pertinent provisions of the
Jordanian law. Since 1967 the Local Defence Regulations could have
been used by the IDF as the basis and source for further security
measures, including the establishment of military courts to try of-
fenders.” Whilst Israel’s policy in 1967 was not to rely on the local
legal systems of the territories occupied by her to provide her with
the necessary legal source for security measures which needed to be
taken, but to promulgate for such purposes new enactments conforming
with international law, she continued to rely on the local legal systems,
including the Defence Regulations, whenever possible, as additional
security provisions supplementary to her own.® In regard to military

6 See, for example, Military Prosecutor v. Ramili 1 SJMC 331 and Military Prosecutor
v. Bahis, ibid., .371 See also D. Shefi, “The Protection of Human Rights in Areas
Administered by Israel; United Nations Findings and Reality,” )1973( 3 Is. YHR
.7
Lately, the Israeli High Court of Justice in Abu Awad v. Regional Commander
of Judea and Samaria )1979( 33 P.D. )3( 309 arrived at the same conclusion.
7 This could not be done in the Ramat Hagolan Region nor in the Sinai Pennin-
sula, where such Regulations did not exist.
8 See, for example, above note ,6 referring to a deportation order.
 MILITARY COURTS 177

courts Israel preferred to set them up on the basis of her own

comprehensive and more liberal enactments.

.6 The Security Provisions Order

The rules relating to the trial of persons in occupied territories by
the military courts of an Occupying Power may be divided into three
general parts: first, the rules governing the establishment of military
courts, their organization, functions and powers; secondly, the rules
relating to the procedure and to evidence applicable in trials before
military courts; thirdly, the rules defining the prohibitions and the
obligations imposed by the military commander on the population of
the occupied territory, namely, the offences the breach of which may
render offenders liable to trial and punishment.
Upon the entry of the IDF into Judea and Samaria, the Gaza Strip,
the Sinai Peninsula and Ramat Hagolan in June ,1967 one of the
first enactments issued by the respective Military Commanders was
Proclamation No. 3 and the detailed SPO annexed thereto. Since then
the SPO has been the basic enactment regarding military jurisdiction
in these Regions. The Order contains several chapters:

)i( a chapter of General Provisions, including a section on definitions

and a section regarding the nomination of Military Commanders
and their powers;
)ii( a chapter on Courts and Jurisdiction dealing with the constitution
of military courts and the nomination of judges, procedure
and the applicable rules of evidence, the power to impose
punishments and other sanctions on offenders and review of
sentences by the Military Commander;
)iii( a chapter on Offences, which contains more than twenty sections
defining offences and the punishments attached to each of them:
)vi( a chapter on Arrests, Searches, Seizures and Confiscations with
provisions regarding proceedings preliminary to trial, such as
the power to arrest suspected persons and their release on bail,
the power to search places and persons and to seize articles
connected with the commission of an offence;
)v( a chapter on Restriction Orders, Supervision Orders and Admin-
istrative Detention, which regulates the powers of the Military
Commander to issue these kinds of orders in regard to persons
in the territories, when necessary for security reasons;
18 Z. HADAR

)iv( a chapter on Restrictions, which regulates the power of a Mili-

tary Commander to impose limitations on traffic, to impose

curfew and to declare areas as closed areas, and to order the
opening and closing of places;
)iiv( a chapter of miscellaneous provisions.

The SPO was amended many times down to ,1980 when it was
issued as a Consolidated Version containing all its preceding amend-
ments.

.7 The Military Courts and International Law

In concluding this introduction about the military jurisdiction in the
Administered Territories, which was established on the basis of the
SPO, note should be taken of a remarkable feature prevalent in the
judgments of the military courts. Many of them, especially the most
important, have relied not only on Israeli judicial norms, military
government orders and local provisions, but have taken into consi-
deration the sources and the extensive literature of international law.
This attitude of the judges reflects their deep concern for their conclu-
sions being in conformity with the principles of international law
applicable to the issues before them.
The main problems relating to international law dealt with by the
military courts have been: how far, if at all, does the Fourth Geneva
Convention apply to the territories and is binding on the military
courts,? is the Military Commander restricted by the Geneva Conven-
tion when issuing Orders; do the military courts have the competence
to review these Orders in the light of the Geneva Convention and
international law in and what is the correct meaning of
Article 4 of the Third Geneva Convention relative to the Treatment
of Prisoners of War, when the accused claims exemption from the
court’s jurisdiction.

Military Prosecutor v. Abu Ranem 1 SJMC ;130 Military Prosecutor v. Naguli

‫כ‬

1 SJMC ;197 Military Prosecutor v. Bahis 1 SJMC ;371 Military Prosecutor v.

Herufah 1 SJIMC ;565 Military Prosecutor v. El Takuri 2 SJMC 137 and Military
Prosecutor v. Sheinboim 3 SJMC .346
10 Military Prosecutor v. Bahis, above note ;9 Military Prosecutor v. Wildman 1
;377 Military Prosecutor v. Hamza 1 SJMC ;497 Military Prosecutor v. Zuhad
1 ;545 Military Prosecutor vy. Herufah, above note .9 [See further on these
Questions, ch. IV above: Ed.].
11 Military Prosecutor v. Mussa 1 SJMC ;252 Military Prosecutor v. Zabda 1 SJMC
 MILITARY COURTS 179

More specific problems of international law also have been considered

by the military courts when appropriate.’? Whilst the opinions expressed
in the judgments are not always uniform and the ways in which the
judges reach their conclusions differ, a clear trend is apparent mani-
festing an overriding respect for the rules of international law.

B. THE CONSTITUTION OF THE MILITARY COURTS*

.1 The Nomination of Judges

Sections 3 and 4 of the SPO deal with the constitution and compo-
sition of the military courts in the territories. Section )a(3 provides
for two kinds of military courts:

“Military Courts shall be set up in the Region: three-judge Mili-

tary Courts as provided in Section ,4 and simple-judge Military
Courts, as provided in Article .”50

Section )b(3 regulates the nomination of the judges of military courts

and their functions:

.1“ The Commander of the Region shall, on the recommenda-

tion of the Military Advocate General, appoint:
)1( legally qualified officers of the rank of captain or
above to act as legally qualified judges;
)2( a legally qualified judge of the rank of lieutenant-
colonel or above, to act as President of the Court;
)3( legally qualified judges to act as Deputy Presidents of
the Court to carry out the functions of the President

;354 Military Prosecutor v. Abu Kebar 2 SJMC ;45 Military Prosecutor v. Suarka
3 SJMC ;206 Military Prosecutor v. Kassem 1 SJMC .402
12 Military Prosecutor v. Abu Ranem, above note 9 (jurisdiction to try an Israeli
resident); Military Prosecutor El Naguli, 1 SJMC 197 (jurisdiction to try a
U.N. employee); Military Prosecutor v. Nasser, 1 SJMC 272 (The Geneva
Convention and the rules of procedure and evidence applied by the military
court); Military Prosecutor v. Iahi, 4 SIMC 25 (absence of an appeal court and
the problem of the Protecting Power); 4 SJIMC ,99 (deduction of period of arrest
from period of imprisonment); Military Prosecutor v. Suarka 5 SJMC 96 -artxe(
territorial jurisdiction); Military Prosecutor v. Haezni 5 189 (status of
Israel in Judea and Samaria). Petition to the High Court of Justice in Israel by
the accused against the jurisdiction of the Military Court was rejected )1980(
34 %5
13In Military Prosecutor v. Haezni, above note ,12 the accused objected to the juris-
diction of the Military Court, on the ground that the Regional Commander was not
180 Z. HADAR

of the Court in his absence or when no President of

the Court has been appointed as provided in para-
graph ”.)2(

A few points require explanation. This section establishes some

connection between the Regional Commander, the law of Israel and
the internal organization of the IDF, especially its legal service. The
Regional Commander is not free to appoint legally qualified judges
according to his own discretion but must act upon the recommen-
dation of the Military Advocate General of the IDF. Section 177 of
the Israeli Military Justice Law deals with the appointment of the Mili-
tary Advocate General and section 178 with his powers and functions in
regard to the IDF. The first two subsections of section 178 are pertinent.

“The Military Advocate General:

.1 is the adviser of the Chief of General Staff and the other
Army authorities in all legal and judicial matters;
.2 supervises the enforcement of justice in the Army, not in-
cluding the supervision and administration of the courts-
martial...”

As the Regional Commander is an “Army functioning by

the orders of his superior officers, and as the Military Advocate Gene-
ral is the legal adviser of the Army and its authorities, it seems clear
that the Regional Commander may not exercise his discretion in any
legal matter except on the advice of the Military Advocate General.
Section )b(3 of the SPO expressly reflects this principle in relation
to the appointment of legally qualified judges to the Military Courts.
Moreover, section )b(3 gives expression to the separation of powers
in the government of the Regions. The Regional Commander is not

empowered to assume authority over the Region and to issue Orders applicable to it
and accordingly was not authorised to promulgate the SPO which enabled him to
constitute Military Courts. The gist of this contention was that as the sovereignty
of the Kingdom of Jordan over the west bank of the Jordan river was not interna-
tionally recognised, Israel was not a “Belligerent Occupant” in this Region and the
Israeli Military Commander lacked any power to issue orders. The Court rejected
the contention on the ground that the question of the former sovereignty over the
Region was only of secondary importance as compared to the other legal powers
deriving from military rule and that as long as Israel refrained from ap-
plying its own legal the Region and had no intention to change the
existing legal situation, military government continued to be in force and the
Regional Commander was empowered to issue Orders.
 MILITARY COURTS 181

a sole and absolute authority in the Area. In regard to the judges, he

cannot act without the advice of a separate and independent authority,
designated to supervise the enforcement of justice in the Army, namely,
the Military Advocate General. The powers of the Regional Com-
mander relate only to the primary appointment, but not to the selection
of judges to hear any specific case, a function which has been relegated
to the President of the Court.

.2 The Removal of Judges

Nothing is said in the SPO about the removal of the judges of the
Military Courts from office. Section 15 of the Interpretation Order is,
however, applicable: 14

“The authority empowered under or by virtue of a security

enactment to make an appointment shall also have the power
to remove, suspend, re-appoint or re-instate any person appointed
by him to the

Judges of the Military Courts in the Regions have no right of tenure.

Their position in this respect does not resemble that of the legally
qualified judges of the Israeli courts-martial according to the Israeli
Military Justice Law, and certainly not that of the ordinary Israeli
judges of the civil courts of Israel. However, it seems that the position
of the legally qualified judges of the Military Courts in the Regions

are protected by section 15 of the Interpretation Order, according to

which the Regional Commander may only exercise his power of
removal in the same way as he exercises his power of appointment,
that is, upon the recommendation of the Military Advocate General.

.3 The Judges’ Freedom from Command Influence

The absence of undue influence by the Regional Commander on
the legally qualified judges of the Military Courts is secured not only
through the above provisions relating to their appointment and removal,
which give the Military Advocate General a major role in the process.
In addition to the formal requirements in this respect, IDF practice has
contributed a great deal more to the system, and the possibility of in-
fluencing the judges has been reduced to minimum. This practice is based

14Order No. 130 of September .1967 This Order is similar to the Israeli Interpre-
tation Ordinance (New Version), which is the new Hebrew version of the Man-
datory Interpretation Ordinance, .1945
182 Z. HADAR

on the Israeli tradition of organising its military forces, which entails the
calling up of reserve soldiers to fulfil military tasks in time of necessity.
Thus, the office of a legally qualified judge of the Military Courts in
the Administered Territories has been filled by hundreds of reserve
officers attached to the Military Advocate General’s unit, who are
lawyers in civilian life and are called up from time to time for very
short periods of service to act as legally qualified judges in the Mili-
tary Courts. Clearly when the function of a legally qualified judge of
a Military Court is carried out by suitably qualified Israeli civilian
lawyers, the responsibility of office is totally theirs and no undue
influence can be exerted on them by any authority.

.4 The Three-Judges and Single-Judge Military Courts

The Constitution of the bench of a Military Court lies in the hands
of the President of the Military Court alone. The military com-
manders do not have any standing in the distribution of cases among
judges and in the choice of the bench.
Section 4 of the SPO contains provisions relating to a bench of
three judges:

)a(“ A three-judge court shall comprise three judges who are

officers of the IDF, of whom one at least is a legally
qualified judge; the bench of a court shall be determined
by the President.
(b The President of the court shall act as presiding judge of

every bench on which he sits. When he does not sit, he

shall appoint another legally qualified judge to act as
presiding

This section should be read together with section )a(50 which pro-
vides as follows:

“A single-judge Military Court shall be composed of a legally

qualified judge who shall be appointed by the President of the
Court from among the legally qualified judges. (Such court shall
be called hereinafter ‘a single judge’)”’.

These provisions for a legally qualified judge to be the presiding

judge of every bench of a Military Court of three and the only judge
in every single judge court, are based on similar Israeli practice. The
Defence Regulations which empower the Chief of General Staff of the
 MILITARY COURTS 183

IDF to constitute in Israel Military Courts of three and a single

judge Military Court, do not mention the need that the judges should
be legally qualified. However, the practice in Israel is that every Mili-
tary Court of three based on the Defence Regulations is presided by
a legally qualified officer and similarly, every single-judge Military
Court consists of a legally qualified officer.
Likewise, every bench of a court-martial constituted under the Mili-
tary Justice Law of Israel must consist of at least one legally qualified
Judge.
No doubt the law and parctice of having a legally qualified judge
in military courts ensure the legality of their operations and create
confidence in their administration of.

.5 Military Courts as Self-Governing Institutions

Once the military judges have been appointed by the Regional
Commander, he ceases to have any influence on the proceedings of
the courts. These courts are self-governing institutions which are
conducted by the President of the court and the other judges alone.
Section 6 of the SPO gives further expression to this principle in re-
gard-to a three-judges court, as follows:

“The place and time at which a Military Court sits in any par-
ticular case shall be determined by the President of the court.”

Section )I()c(50 of the SPO, regarding a single-judge court con-

tains a similar rule:

“A Single Judge shall sit at such times and places as he shall

direct’’.16

.6 The Absence of an Appeal Court

No Military Court of Appeal was established in the Administered
Territories to hear appeals from the Military Courts of first instance.

15The Fourth Geneva Convention does not provide that the judges of military
courts established by an occupying Power in occupied territory should be legally
qualified.
16 These sections were enacted on the analogy of sections 14 and 56A of the Defence
Regulations. In contradistinction a court-martial under the Israeli Military Justice
Law cannot start its proceedings without a convening order issued by the com-
mander of the military district or on his behalf, a procedure which has not been
adopted in the SPO.
 184 Z. HADAR

In one the accused was charged with security offences. The

Defence counsel claimed that the court before which the accused was
brought to trial was incompetent to try him because according to
Article 73 of the Fourth Geneva Convention a court of appeal should
have been set up for hearing appeals against the judgments of courts
of first instance and that the absence of such a court of appeal deprived
the courts of first instance of jurisdiction. This claim was rejected on
the ground that Article 73 of the Convention did not contain any
obligation to establish an appeal court but only prescribed that a con-
victed person should have the right to petition against the finding and
sentence of the court to the competent authority of the Occupying
Power and this right was accorded by sections 4143 of the SPO.
Israeli policy not to establish an appeal court in the Administered
Territories was based mainly on the tradition of military governments
in other countries, which did not provide for such a court and were
satisfied with a system of one instance
Under sections 4748 of the Defence Regulations, however, con-
viction and sentence by a three-judge Military Court had to be con-
firmed by the CGS of the IDF in order to be valid. The CGS was
authorised to vary the findings of the court and acquit the accused or
mitigate his sentence. Judgments of single-judge Military Courts did
not require such confirmation. Nevertheless, the CGS could intervene
and also vary the findings, acquit the accused or mitigate his sentence.
The principles of this policy were adopted and elaborated by the SPO,
while replacing the CGS by the Regional Commander, so that for
practical purposes the latter was granted powers similar to those of

an appeal

17 Military Prosecutor v. Iahi, above note .12 The same conclusion was reached
earlier in Military Prosecutor v. El Hattib, Selected Judgments, 1 SJMC .363
In Prosecutor v. Zuhad, above note ,10 the same conclusion was
reached in regard to an offence according to the local law. Here defence counsel
claimed that the Military Government was not entitled to adopt the local penal
law without adopting at the same time the right of appeal exising thereunder.
The court rejected this plea on the ground that nothing in the Geneva Con-
vention prevents the Occupying Power from granting jurisdiction to its military
courts in relation to offences defined by local penal legislation without at the
same time adopting the local institution of an appeal court.
18In 1963 the Israeli Military Justice Law was amended; the Appeal Court-Martial

was empowered to hear appeals from Military Courts under the Defence Regu-
lations.
19 See sections 4243 of the SPO. In Prosecutor v. Hagub 5 SJMC ,10
 MILITARY COURTS 185

The absence of a Military Court of Appeal to hear appeals against

the judgments of Military Courts in the Administered Territories had
another effect on the administration of justice there. Though a person
convicted by a Military Court could not bring his case to a court of
higher instance, the prosecuting authorities as well could not do so
and had to release the accused if he was acquitted.
As there is only one level of Military Courts in the Administered
Territories and though the three-judge and the single-judge Military
Courts are of the same rank, the former are considered to be of a
higher level than the latter. This relation between the two kinds of
courts is reflected in section 50 )d( and )e( of SPO:

)dq(“ At any time before pronouncing his decision a Single Judge

shall have power to remit any charge for trial by [a three-
judges court] and to remand the defendant in custody or to
release him on such conditions as he may prescribe in order
to appear before such Military Court, and thereafter such
Military Court shall have power to try and determine the said
charge as if it had been brought before it in the first instance.
)e( A defendant brought to trial before a Single Judge may at
the commencement of the hearings request that his case be
remitted to a Military Court set up under section 4 and the
Single Judge must comply with the request. A Single J udge
shall at the commencement of the hearings inform the
defendant of his right under this

The absence of a Military Court of Appeal in the Administered

Territories raised the problem of the uniformity of decisions in the
Military Courts. No rule was enacted by the Regional Commanders
obliging Military Courts to abide by their former decisions. Thus it

the prisoner applied to set aside a sentence of twenty five years imprisonment
which had been imposed on him two months earlier, on the ground that it
exceeded the period prescribed by law. The Court held that though the sentence
was ultra vires, the court could not remedy the mistake because it was already
functus officio. However, it was observed by the Court that the prisoner could
apply to the Regional Commander under section 43 of SPO because his authority
filled the gap formed by the absence of an appeal court. It seems that the
accused could have applied also to the Supreme Court of Israel sitting as High
Court of Justice.
20 Military Prosecutor v. Bakir, 1 SJMC 450 and Military Prosecutor v. El Takuri,
above note .9
186 Z. HADAR

happened that on some subjects decisions have not been based on a

uniform or identical interpretation of the law and different trends of
opinion can be found. Since, however, most lawyers and especially
judges are tradition-minded and it is always safe to follow the views
expressed in an already-decided case, it can be said that generally
most of the decisions of the Military Courts tread paths created by
their predecessors and many judge-made rules were elaborated and
established by military

C. THE JURISDICTION OF THE MILITARY COURTS

.1 The Jurisdiction of the Military Courts Ratione Materiae

The jurisdiction of the Military Courts in the Administered Terri-
tories ratione materiae is specified in section )a(7 of the SPO:

)a(“ A Military Court shall be competent to try any offence

defined in security enactments and any offence defined by
law, subject to all provisions in security enactments”’.

Ratione materiae, the Military Courts are competent to try two

kinds of offences: first, any offence defined in security enactments, a
term defined in section | of the Interpretation Order as “any procla-
mation, order, notice, notification, request, permit, appointment or

any other document, issued whether before or after the enactment of

this Order by a Regional Commander, a Military Commander or
another authority acting for them, on their behalf or by their approval”’.
Plainly, according to this definition, the first category of of-
fences includes any offence created by the Israeli military authorities
of the Region. Secondly, the Military Courts are empowered by sec-
tion 7 )a( of the SPO to try any offence defined by law, a term which

was also defined in section 1 of the Interpretation Order as “any

enactment by the legislative authority in force in the Region on the
eve of the determining day [7 June ;]1967 including any provision based
on such enactment but excluding security enactments.”
In relation to the jurisdiction to try offences defined by security
enactments, it seems proper to explain briefly the contents of these

21 Military Prosecutor v. Abu Snima, 3 SJMC ;2 the Court remarked that in the
absence of an appeal court and the lack of an authoritative interpretation of
the law, the military judges should respect the conclusions of their colleagues and
deviate from former decisions only when weighty reasons convince them to do so.
 MILITARY COURTS 187

enactments. Broadly speaking, such offences fall into two major groups.
The first group comprises all the offences created for preserving
military interests or for maintaining the safety of the territory. An
important part of this group are the offences defined in Chapter III of
the SPO and in its other sections. Some of these offences are sabotage,
carrying and possessing firearms and explosives, spying, collecting and
holding forbidden information, contact with the enemy, interfering
with military operations, asaults and threats, bribery, supplying false
information, entering into restricted zones, assisting offenders, offences
in regard to licenses and disobeying various orders issued by a Mili-
tary Commander. Beside the offences under the SPO, the Regional
Commanders have issued for the same purposes special orders declaring
certain conduct to be an offence. Among these may be mentioned the
Order Prohibiting Looting,?? the Order concerning Closed Areas,”*
the Order Prohibiting Incitement and Hostile the Order
Preventing the Order concerning the Opening of Business
Places, and the Order Prohibiting Trainting and Contact with an
Hostile Organization Outside the Area?’ and the Order concerning
Information on Injured
The second group of offences created by the Regional Command-

ers are those necessary to restore and ensure la vie publique within
the meaning of Article 43 of the Hague Regulations. These offences
provide sanctions for deviations from the detailed regulation of spe-
cific fields relating to the civil life of the territories. The following are
examples: Order concerning the Preservation of the Holy
Order concerning the Transfer of Agricultural Order con-

22 Order No. .1
23 Order No. 5 which prohibited entry into or departure from the Region without

a permit.
24 Order No. .101
25 Orders No. ,106 125 and .329
26 Order No. .128
27 Order No. .284
28 Order No. .163 See also M. Drori, The Legislation in the Area of Judea and
Samaria ,)1975( pp. .127152
29 Orders No. 66 and .327 In regard to the jurisdiction to try offences relating
to these Orders, see Military Prosecutor ‫לצ‬. Dayan 5 SJMC 205 and
Prosecutor v. Erlin 5 SJMC .180
30 Order No. ,47 which prohibited the export and import of these products without

a proper licence.
 188 Z. HADAR

cerning Closed Areas (Prohibition of Transferred Goods) 71 Order con-

cerning the Control of Currency, Securities and Gold,*? Order con-
cerning Abandoned Property (Private Property) Order concerning
Government Order concerning Income Tax and Property
Order concerning the Antiquities Order concerning
Traffic Order concerning Nature Conservation,*® and Order
concerning Parks.*°
It should be noted that in those territories where local courts do not
exist (like Sinai), the Military Courts have to deal with all kinds of
”lacol“ offences, whereas in the territories in which the local courts
continue to operate, the Military Courts deal with such local offences
only when some special security interest exists not to bring the offender
before the local courts. A most important offence according to local
law which is ordinarily tried by the Military Courts is that of mem-
bership in an unlawful organization defined in section 85 of the
Defence which were enacted, as mentioned before, by
the British Mandatory Government and are still part of the local law.
An objection based on two grounds has been raised in regard to
the jurisdiction of the Military Court to try an offence against local
law. First, such jurisdiction is too closely connected with local proce-
dural law which does not obtain in the Military Courts and, secondly,

31 Order No. .49

32 Order No. .299
33 Order No. .58
34 Order No. .59
35 Order No. .28
36 Order No. .119
37 Order No. .399
38 Order No. .363
39 Order No. .373
40 Other offences against the Defence Regulations are also dealt with by the mili-
tary courts. In Military Prosecutor v. Elgnimi 1 SJMC ,126 the Military Court
in the Gaza Strip dealt with riot, defined by Article 81 of the local Criminal
Code Ordinance, ;1936 in Prosecutor v. Abu Medin 1 SJMC 22 the

same court dealt with murder, defined by Article 214 of the local Criminal Code
Ordinance, ,1936 Military Prosecutor v. El-Sharif, 1 SJMC ,143 related to an
offence committed in Sinai under the Egyptian Criminal Code of .1937 Military
Prosecutor v. El Takuri above note ,9 dealt with negligence in the discharge
of duty, under Article 183 )1( of the Jordanian Criminal Law. In Méilitary Pro-
secutor v. Hantuli 3 SJMC ,274 the offence was forgery of a private document,
defined by Article 271 of the Jordanian Criminal Law. The Méilitary Prosecutor

v. Ilul, 2 SJIMC 169 concerned theft and selling stolen property, defined by the
Syrian Criminal Law.
 MILITARY COURTS 189

it contradicts Article 64 of the Geneva Convention. This objection

has been rejected by the Military Courts. In one Defence Counsel
contended that under Article 64 of the Geneva Convention the Oc-
cupying Power is only entitled to bring to trial before its military
courts the local civilian population for offences declared by the Re-
gional Commander and not those defined by local criminal law in
respect of which the Military Court has no jurisdiction. The contention
was rejected and it was held that even if such restrictive interpretation
of Article 64 were to be accepted, the military prosecutor was in the
circumstances justified in charging the accused before a Military Court.
The accused was employed by the Regional Commander and the
Convention recognised the authority of the Occupying Power to subject
the population of the occupied territory to provisions which are essen-
tial to enable the Occupying Power to fulfil its obligations under the
Convention to maintain the orderly government of the territory, and
prevent bribery. Prevention of offences of the kind with which the
accused was charged, was a prime element in maintaining orderly
government in any country and especially the territory concerned.
Defence counsel also submitted that a condition precedent to bringing

a criminal charge against a local government official was compliance

with the procedure provided under local law, which had not been
followed in the instant case. The court denied this submission because
section 2 of the SPO provided that local law should remain in force
subject to the necessary modifications arising out of occupation and,
since such employees as the accused were subject to the organs of
Regional Commander, local law, linked to the local constitution and
government was not applicable.
The power of the Military Courts to try not only offences created
by the Regional Commander but also those defined by local law
manifests a reality which denies absolute separation between the
legislation of the former government of the Region and the enactments
of the Occupying Power. On the contrary, if the Occupying Power is
to exercise its authority and fulfil its obligations under Article 64 of
the Geneva Convention most efficiently, from the legal technical point
of view, the enactments of the Regional Commander must be allowed

41 Military Prosecutor v. Herufa, above note .9 See also Military Prosecutor v.

Nimmer, 4 SIMC ;121 Military Prosecutor v. Zuhad above note ;10 and Mili-
tary Prosecutor v. El Takuri, above note .9
 10 .7 HADAR

to integrate with the original legal system of the Region and the
Military Courts should be empowered to try offences whatever their
legal source, as provided by section )a(7 of the SPO.
The proviso in section )a(7 “subject to all provisions in secur-
ity enactments” is to be explained in regard to the jurisdiction of the
Military Courts to try offences under local law. As no court can try

a person for an offence without taking into consideration the principles

contained in the general part of the criminal law which, strictly speaking
do not form part of the definition of the offence, the question arises
whether a Military Court trying an offence defined by local criminal
law has to adopt the local general principles of the criminal law

as well? The answer has been in the negative for two reasons: *
first, section 7 )a( speaks of jurisdiction to try offence” defined
by local law and not of jurisdiction to try “according to the local
penal law”; secondly, the proviso to the section, referring to security
enactments, had in mind the Rules of Criminal Responsibility Order,*
which introduced general principles of criminal law similar to these
of the Anglo-Saxon system of law, laid down inter alia also in the
Criminal Code Ordinance, 1936 of completing thereby a
comprehensive criminal code.
There is no distinction between a three-judges military court and

a single-judge court in regard to competence to try offences and

a single-judge military court may try any offence existing in the Region.
The sole limitation imposed by the SPO on a single-judge court in
this respect concerns its sentencing power.*

.2 The Territorial Jurisdiction of the Military Courts

Section )c(7 of the SPO deals with the territorial jurisdiction and
reads as follows:

“A Military Court shall also be competent to try. as provided

in subsection ,)a( anyone who committed an act outside the
Region which would constitute an offence had it been committed
within the Region and the act prejudiced or was designed to
prejudice the security of the Region or public order therein.”

42 See Military Prosecutor Bakir, above note .22

43 Order No. .225
44Now the Penal Law, ,1977 a new and comprehensive version of the original
Criminal Code Ordinance, .1936
45 See section 50 )b( and )c( )3( of the SPO.
 MILITARY COURTS 191

This subsection represents the last stage in the development of the

legal definition of the authority of the Military Courts in the Admin-
istered Territories to try extraterritorial offences. It is not exhaustive
and must be read together with the specific Orders relating to the
matter.
Neither the Hague Regulations nor the Geneva Convention prescribe

any specific restriction on the Occupying Power in this regard when

the trial of offenders is necessary to enable it to
exercise its authority or fulfil its functions according to international
law. Thus, the only restrictions on the Occupying Power in regard to
the extraterritoriality of offences, intended to apply to the population
of occupied territory, must be sought in customary international law.
During the first period of the administration of the Territories no
specific provision was prescribed by the Regional Commanders re-
garding the territoriality of the offences created by them. However, when
the general principles of the criminal law were introduced into the
territories by the Rules of Criminal Responsibility Order, the principle
of the territoriality of offences was presumed. The restricting effect
of this principle was relaxed when section 2 of this Order adopted

a principle similar to the one contained in section 7 of the Israeli

Criminal Code Ordinance and declared that:

“When an act which, if wholly committed within the Region

would be an offence, is committed partly within and partly
outside the Region, every person who within the Region com-
mitted any part of such act may be tried and punished in the

same manner as if such act had been committed wholly within

the Region”.

As the Rules of Criminal Responsibility Order applies to all of-

fences triable by the Military Courts, section 2 thereof relates both
to offences created by security enactments as well as these under local
law. The adoption of a provision similar to section 7 of the Israeli
Criminal Code, ,1936 by military courts in the Territories, under
section 2 of the Rules of Criminal Responsibility Order, carried with
it the interpretation given to the principle of territoriality in Israel
and in the Common Law world from which it was taken.
One Military Court case“ may serve as an example of the way in

46 Military Prosecutor vy. Wildman, above note .10

 192 Z. HADAR

which the military courts viewed their competence to try extraterritorial

offences before the enactments of section )c(7 of the SPO. In this

case two counts were brought against the accused—breach of a curfew

order and entrance into a closed area. When it became clear that the
accused was held up by a road barrier located in Israeli territory before
he could enter the area in which the curfew was imposed and which

was declared a closed area, the question arose whether in these cir-
cumstances the court had authority to try the accused of an attempt
to commit these two offences, when no part of them was ever committed
in the Region. The prosecutor argued that the court was competent
to try the accused because the alleged act could have repercussions
within the Region. The court rejected this argument and concluded,
after considering Israeli and British precedents, legal literature, inter-
national conventions and the laws of war pertaining to the matter, that
it had jurisdiction to try the case only if some part of the act was
committed within the boundaries of the Region or if in fact it had
repercussions within them. As neither of these two conditions existed,
the case did not come within the jurisdiction of the Court.

In another case*’ the accused, a Jordanian citizen resident in Nablus,

allegedly made a false declaration and forged a receipt given to the
customs authorities of the Region at their office building located
outside the Region, in order to induce them to provide him with a
quantity of salt for which he had already paid customs duty to the
Jordanian authorities. The court dismissed the claim of the prosecutor
that it was competent to try the accused on the basis of these facts

as disclosing an offence under both an Order of the Regional Com-

mander and local law. Regarding the Order of the Commander which
turned the actus of a false declaration to the military authorities in
the Region into an offence, the court decided, according to the ex-
tensive legal material analysed by it, that the Order could not and

was not intended to have extraterritorial effect since it possessed

no clear security relevancy. Regarding local law which in certain
circumstances extended criminal responsibility to offences committed
outside the territory, the court arrived at the important conclusion
that section 2 of the Rules of Criminal Responsibility Order, to-
gether with all the other sections, replaced the provisions of local law
in regard to criminal responsibility for offences defined by it, as far

47 Military Prosecutor v. Bakir, above note .20

 MILITARY COURTS 193

as military courts were concerned. Accordingly, when a military court

has to decide whether it had territorial jurisdiction over an offence
defined by local law, it had to apply the more restricted provisions
of the Order rather than local law.
In a third case** the accused was charged with two offences—having
contact with the enemy and belonging to an unlawful organization.
According to the facts it was clear that the accused had left the Region
before the entrance of the Israeli forces and then was recruited by the
said organization. However, four months afterwards he returned to
join his family. His defence was that on his return he was no longer

a member of the unlawful organization and therefore the court could

not try him for an offence committed outside the territory. This defence
was accepted on the ground that there was nothing in the relevant
Orders of the Regional Commander which suggested any extension of
the application of the offences of which the accused was charged beyond
the boundaries of the Region.*
Section )c(7 of the SPO was intended to enlarge the provisions
of section 2 of the Rules of Criminal Responsibility Order relating
to the territorial jurisdiction of the military courts by way of amend-
ment of the original provisions of section .2 According to section
,)c(7 even if all the elements of the offence were committed outside
the Region, the military court had jurisdiction, provided the act affected

or was intended to affect the security of the Region or its public order.
Thus a considerable range of offences concerned with assisting in the
commission of offences, attempt, incitement or conspiracy to commit

an offence, membership in unlawful organizations and others became

48 Military Prosecutor v. Rnaiem 1 SJMC .560

49 1 may be noted that since the prosecutor agreed that the accused could not
be convicted if he had joined the unlawful organization outside the territory,
the court did not consider the question whether the offence of belonging to an
unlawful organization was an extraterritorial offence, when the organization
itself existed and acted inside the boundaries of the Region. In Méilitary Pro-
secutor v. Gabli 1 SJMC ,262 it was decided that the offence of leaving a Region
without a permit was committed within the boundaries of the Region. In Méili-
tary Prosecutor v. Abu Daher, 2 SJMC ,25 the Court convicted a person who
had lawfully passed from the Gaza Strip to the Region of Judea and Samaria
under a permit issued in the Gaza Strip, but when in Judea and Samaria received
a licence to enter Israel contrary to the terms of the permit issued in Gaza. The
court concluded that as the entrance of the accused into Israel was contrary to
the conditions of the permit to leave the Gaza Strip, he could not be excused
by the licence he received from the authorities of Judea and Samaria.
 4 Z. HADAR

triable by the military courts even when no part of the offence was
committed within the Region.”
It seems that the general provisions of section )c(7 of the SPO

are not exhaustive and that in the proper circumstances the Regional
Commanders may enact specific provisions defining particular offences

as extraterritorial.®! It should be added that in this regard each Region

administered by Israel is to be regarded as a separate legal entity. The
effect is that an act committed outside the boundaries of one Region
is considered to be an extraterritorial offence in respect to such Region
even if committed in another Region or in Israel itself.

.3 The Jurisdiction of the Military Courts Ratione Personae

The jurisdiction of the Military Courts in the Administered Terri-
tories ratione personae was not defined in the SPO or in any other
Order issued by the Regional Commanders. Apparently jurisdiction

was not intended to be limited in this respect and anyone could be

brought to trial, provided he did not enjoy specific immunity from
military jurisdiction. The question of immunity from military juris-
diction arises in regard to certain groups of persons whose liability to
be tried by military courts seems doubtful.

ISRAELI CITIZENS OR RESIDENTS

Israeli citizens or residents are as such not exempt from the juris-
diction and in proper cases they have been brought to trial before
Military Courts.
In one the defence raised the preliminary objection, that the
accused, as an Israeli citizen and resident, was not subject to the juris-

50 Section 7 )b( resembles section 5 )a( of the Israeli Penal Law, ,1967 which
itself reproduces earlier Israeli legislation on extraterritorial offences triable by
Israeli courts. See Military Prosecutor v. El Musselmani, 5 SJMC ,1 in which
the Military Court decided that it had jurisdiction to try the accused on an
offence prohibiting contact with the enemy, according to section 54 of the SPO,
although committed in Egypt by an Egyptian resident and citizen. A similar
conclusion was reached by the Military Court in Military Prosecutor v. Suarka,
above note ,12 in regard to the offence of carrying weapons in Lebanon and on
the high seas.
51 Such was Order No. 284 concerning the Prohibition of Training and Contacting
with Hostile Organization Outside the Area. On the application of this Order,
see Military Prosecutor v. El Massri 3 SIMC ;195 Military Prosecutor v. Slima
ibid., ;211 and Military Prosecutor v. Nagad, 4 SJMC .131
52 Military Prosecutor v. Abu Ranem, above note .9
 MILITARY COURTS 195

diction of the court and could not be tried for an offence constituted
by an Order of the Regional Commander. The objection was based
mainly on the wording of Article 64 of the Geneva Convention,
second paragraph, according to which “The Occupying Power may...
subject the population of the occupied territory to provisions which are
essential to enable the Occupying Power to fulfil its obligations under
the present convention to maintain the orderly government of the
territory”. Counsel claimed that the Article restricted the power of
the Regional Commander to issue penal Orders applicable only to
the local population and not to the population of the Occupying
Power visiting the territory. The objection was denied. The court stated:

“The Regional Commander issued the SPO in order to maintain

public order and to ensure the security of the Occupying Power
and its forces as provided in the Geneva Convention. It is obvious
that if he is entitled to issue Orders regarding the population of
the Occupied Territory, these orders will apply also to the in-
habitants of the territory of the Occupying Power, visiting the
Territory.
After all, the Geneva Convention intended to protect the popu-
lation of the Occupied Territory and it did not single out the
population of the Occupiyng

Israeli citizens cannot claim that they are entitled to be tried by their
national courts even when these courts have concurrent jurisdiction
with the Military Courts of the Administered Territories in respect
to the same offence. The Israeli Emergency Regulations (Offences in
the Administered Territories—Jurisdiction and Legal Aid), ,1967 adopt-
ed by the Israeli Knesset in the Emergency Regulations (Offences
committed in Administered Areas—Jurisdiction and Legal Assistance)
(Extension of Validity) Law, ,1967 contains provisions intended to
assist the Military Courts in the Administered Territories in assuming
jurisdiction over Israelis or other persons who have committed offences

53In Military Prosecutor v. Zion 1 SJMC ,18 the Court trying a resident of Israel
accused of theft when visiting the Region decided:
“The fact that the accused is an Israeli resident does not grant him any
privilege in the courts of an Administered Territory. On the contrary, im-
peding the IDF in the administration of the Territory by his breach of the
law, his sentence should be severer than that for local persons accused of a
similar offence”.
196 Z. HADAR

triable by a Military Court and are later found in Israel. No restriction

was imposed, limiting the effect of the law to cases where no Israeli
court can try such offences. Thus according to section 4 )a( of these
regulations:

“Where there are reasonable grounds for believing that a person

has committed in a Region an offence which a military court is
competent to try, and that person is in Israel, then, if his appear-
ance in court cannot be otherwise ensured, the Attorney General
may order that he be arrested by a police officer and be delivered
up in the Region in which the offence was committed, in such a
manner and to such authority as the Attorney General may direct,
in order to be tried there for that offence by a military court”.™

Moreover, according to section 6 )b( of these regulations:

“Where a warrant of arrest or detention order has been issued

against any person in a Region in the exercise of a power confer-
red by a proclamation or order of a commander, such warrant or
order may be carried out in Israel in the manner in which a
warrant of arrest or detention order is carried out in Israel”.

When defence counsel claimed® that it could be inferred from the

foregoing law that a military court is not empowered to try an Israeli
citizen for an offence he has committed in the Region, if he could be
brought to trial before a court in Israel, the court rejected the claim
and explained that whilst section 2 )a( of this Law provided that an
Israeli court was competent to try under Israeli Law a person found
in Israel for an act committed in the Region which would have been

an offence if committed within the territorial jurisdiction of an Israeli

court, the opposite conclusion could not be drawn. The grant of special
jurisdiction to an Israeli court did not mean that a military court in the
Region did not have the same jurisdiction. On the contrary, the Law
purported to grant special concurrent jurisdiction to Israeli courts,

54 When a person is brought from Israel to be tried before a military court in the
Administered Territories, there is no need to receive a formal order from the
Attorney-General of Israel warranting this step, as pleaded by the defence in
Military Prosecutor v. Sushan 1 SJMC ,577 referring to Article 4 )a( of the
Regulations. The court rejected this plea and concluded that the purpose of
the Article was only to enable extradition and enforce the appearance of the
accused, found in Israel, before a military court functioning in the Region.
55 Above note .52
 MILITARY COURTS 197

but that did not deprive the military court of its substantive jurisdic-
tion. Strong support for this conclusion was found in the decision
of the High Court of Justice of Israel in Levy v. Chief of General
Staff. In this case the petitioner claimed that according to section 4
of the Israeli Criminal Procedure Law, ,1965 an accused is to be tried
by the court having jurisdiction in the place where he was arrested.
Since he was arrested in the Upper Galilee, he contended, only the
Magistrate Court of Safad or the District Court of Haifa might try
him. The High Court of Justice held against the petitioner, that the
criminal procedure which was the subject of the Law of 1965 is -ivic“
lian” criminal procedure and not military criminal procedure. Section
4 was concerned with an offence committed abroad but that meant
only “abroad in peace time” (because Israel had no court there) and
not “in an area abroad that was under military government” when
the military authorities were entitled to establish courts.
The judgment of the Military Court previously cited did not confine
its reasoning to the case of an Israeli citizen but went further and
decided:

“In this case the accused is an Israeli citizen. The citizenship of

the accused makes no difference and even if he were a British,
American or French citizen and broke a provision of the SPO
he would have been brought to trial before a military court”.

ISRAELI SOLDIERS
The question arises whether a military court has jurisdiction to try

an Israeli soldier, or any other Israeli, subject to the jurisdiction of an

Israeli court-martial constituted under the Israeli Military Justice Law.
This question may be pertinent when such a soldier or civilian is in
the employment or under the control of the Regional Commander or
acts in any other status and commits in the Administered Territories
an offence against the Orders of the Commander, whether alone or in
collaboration with persons belonging to the local population.
In the above case*” the Military Court remarked that when a soldier
contravenes the SPO, he will be tried for a military offence according
to the Military Justice Law, since for every offence found in the SPO
there was a similar offence under the Military Justice Law and it was

56 )1967( 21 P.D. )2( .165 See also Military Prosecutor v. Sheinboim, above note .9
57 Above note .52
198 Z. HADAR

more suitable to bring the soldier before the court designated for such
disciplinary purpose, namely, a court-martial according to that Law.
It seems that this was rather a statement of policy than of prin-
From the doctrinal point of view there is no difference between

an Israeli civilian and an Israeli soldier regarding their amendability

to the jurisdiction of a military court sitting in a Region. An Israeli
citizen could not demand to be tried only by his ordinary national
court, and equally an Israeli soldier is not entitled to claim that only
a court-martial could try him for his offences against the Orders of a
Regional Commander.
Needless to say that just as an Israeli soldier or civilian employed
in the Regional Administration is not exempted from the jurisdiction
of the Military Court, so are local residents employed in such admin-
istration®® and local employees of international bodies not enjoying
special

PRISONERS OF WAR
Another group of persons that have raised the issue of the juris-
diction of the military courts are terrorists who claim the privilege of
prisoners of war. Where the accused testified™ that he was a regular
Syrian soldier who had deserted and then joined El-Fatah which sent
him to the West Bank together with the others to attack military
forces, defence counsel submitted that the Court had no jurisdiction
to try him and that he must be treated as a prisoner of war. The
submission was rejected and the Court held that when the accused
deserted and voluntarily joined El-Fatah, he severed his connection
with the Syrian army and thus excluded himself from the application
of the Third Geneva Convention. The Court added that even if it
was established that the accused was still a soldier, that Convention
would not apply to him and he would not be considered a prisoner of

war, because he did not fulfil the conditions required by Article 4

thereof. The Court stressed that a soldier is not automatically granted
the status of a prisoner of war; he must belong to the armed forces and

58In Military Prosecutor v. Zuhad, above note ,10 the court stated that it was
competent to try Israeli civilians and soldiers accused of committing offences
in the Region under the Traffic Order No. .56
Military Prosecutor v. Herufah, above note .9
60 Military Prosecutor v. El Naguli, above note .9

61 Military Prosecutor v. Mussa, above note .11

 MILITARY COURTS 199

operate within their framework according to the four conditions spe-

cified in Article .4
The judgment of a Military Court in another case® contains a
clear and comprehensive exposition of the law regarding the application
of the Third Geneva Convention to members of terrorist organizations
and thus of the jurisdiction of a military court to try them for the of-
fences of carrying weapons, armed infiltration and belonging to an
unlawful organization. In this case the accused claimed that they were
prisoners of war as they belonged to an organization called
Popular Front” and were wearing uniforms when captured.
Such a plea, the Court ruled, even if not specifically mentioned as

a recognized defence in the Orders of the Regional Commander, could

negate jurisdiction with regard to the offences alleged against the
accused. It appeared to the Court that its jurisdiction was limited by
the provisions of customary international law and those of the various
Conventions regarding the treatment of prisoners of war and that it

was an established rule that prisoners of war should not be brought to

trial for offences committed before their capture, unless these were

war crimes.
The Court then proceeded to examine the facts of the case in the
light of the conditions laid down in Article 4 of the Third Geneva
Convention. It held that by belonging to the “Popular Front” the
accused did not comply with the conditions of paragraph )1( of
Article .A.4 of the Convention, which applied only to members of the
forces of a State which was a party to a conflict and not to other
bodies which were neither States nor Governments.
The Court also ruled that paragraph )6( of Article .A.4 of the
Convention was not pertinent, since the accused were not “inhabitants
of a non-occupied territory who, on the approach of the enemy, spon-
taneously took up arms to resist the invading Then the Court
examined the conditions of paragraph )2( of Article .A.4 and con-
cluded that all of these had to be complied with in order to grant the
accused the protection of the paragraph. The court stressed the prelimi-
nary and most basic condition for the application of this paragraph,
that the irregular forces mentioned in it should belong to a Belligerent
Party. If the accused did not belong to a Government or State respon-
sible for them and having authority over them, they did not possess

62 Military Prosecutor v. Kassem, above note .11

200 .7 HADAR

the right under current international law to enjoy the status of prisoners
of war. They were to be regarded as combatants not protected by
international law dealing with prisoners of war and the Occupying
Power might consider them as ordinary criminals.
The Court decided that although no government at war with Israel
accepted responsibility for the organization to which the accused be-
longed, it was ready to proceed on the assumption that each member
of such organization was entitled upon capture to be treated as a
prisoner of war, if that organization fulfilled the four basic conditions
mentioned in the first Article of the Hague Regulations, which were
incorporated in paragraph )2( of Article .A.4 of the Third Geneva
Convention. The Military Court briefly discussed the first three con-
ditions of the paragraph.
As to the first condition it concluded that no proof had been fur-
nished that there existed a commander responsible for his subordinates
before a Court-Martial. As to the second, it held that under the con-
ditions of present-day warfare, this requirement was conceivably
fulfilled if, by the uniform and other equipment, the accused could be
clearly discerned as not being civilians but combatants. Since the
accused were captured wearing special green clothes and caps, this
condition was fulfilled. As to the third condition of carrying arms openly,
the court was of the opinion that this requirement did not refer to
the individual combatant but rather to the force to which he belonged.
Since it was proved that the organization to which the accused be-
longed did not fulfil this condition and that even the accused them-
selves carried their weapons clandestinely and since the Court held
that the phrase arms openly” did not refer to the carrying of
arms in places where the arms and the persons carrying were not
visible, or carrying arms during their use only, it did not seem to the
Court that the accused fulfilled this condition.
The Court elaborated the requirements of the fourth condition of
the Article, which appeared to it the most essential. Non-fulfilment of
this condition of conducting the military operations in accordance with
the laws and customs of war, completely precluded, it held, any possi-
bility to claim lawful belligerency. The Court went on to set out what

was the meaning to be attached to the idea of conducting military

operations “in accordance with the laws and customs of war”. After
reviewing the sources and principles of the laws of war and stressing
the difference between lawful and unlawful combatants, it came to
 MILITARY COURTS 201

the conclusion that the “Popular Front” acted in complete disregard

of international law. The Court proceeded to say that attacks merely

upon civilian objectives and persons, conducted by this organization,

were wanton acts of terrorism and utterly repugnant to the principles
of international law; the civilian clothes found among the effects of
the accused were indicative of their intent to switch from the role of
combatants to that of common criminals and international law was
not designed to protect and grant rights to saboteurs and criminals.
Accordingly the plea of the accused as to their right to be treated as
prisoners of war was rejected and the Court held that it was competent
to try the defendants.®
In still another case** a new aspect of the immunity from the juris-
diction of the Military Court was clarified. There two persons were
charged with several offences relating to the security of the Region.
They did not deny the alleged offences but claimed that being regular
soldiers of the Egyptian Army they had acted upon orders from their
commanders in that Army and they should therefore be treated as
prisoners of war immune from the jurisdiction of the Military Court.
The accused were captured while wearing civilian clothes and the
question to be decided was whether they had thereby lost the protec-
tion of the Convention because they did not comply with the conditions
of Article .A.4 The specific question was whether the protection of
Article .A.4 )1( extended to all members of the armed forces of a
party to a conflict, as was apparently implied by the wording of the
paragraph, or whether compliance was also necessary with the re-
quirement of paragraph ,)2( of having a fixed distinctive sign recog-
nizable at a distance, in order to enjoy such protection. Relying on
the judgment of the British Privy Council in the case of Mohamed Ali

v. Public Prosecutor [1968] 3 All E.R. 488 and the authorities cited
there, the Court held that the accused, even if members of the Egyp-
tian Army, were not to be considered as prisoners of war but as
unprotected terrorists.

.4 The Temporal Jurisdiction of the Military Courts

Regarding the temporal jurisdiction of the Military Courts, three
provisions of the Fourth Geneva Convention have to be considered.

63 See Military Prosecutor v. Abu Kebar, above note .11

64 Military Prosecutor v. Suarka, above note .11
202 .2 HADAR

Article ,65 referring to the legislative power of the Occupying Power,

stipulates as follows:

“The penal provisions enacted by the Occupying Power shall not

come into force before they have been published and brought to
the knowledge of the inhabitants in their own language. The
effect of these penal provisions shall not be

Article 67 refers specifically to the judicial arm of the Occupant,

the military courts constituted under Article ,66 and prescribed that,

“the courts shall apply only those provisions of law which were
applicable prior to the offence”’.

If Article 67 is read together with Article 66 it seems that both of

them refer to the “provision of or “the penal provisions’’, enacted
by the Occupying Power itself. Article 70 of the Convention uses
different terms:

“Protected persons shall not be arrested, prosecuted or convicted

by the Occupying Power for acts committed or for opinions ex-
pressed before the occupation. . . with the exception of the breaches
of the laws and customs of war”.

The Military Court® has given judgment against an accused charged

with two offences under a published Order of the Regional Commander,
of failing to offer foreign currency to the authorities and attempting
to take foreign currency out of the region. Counsel claimed that the
accused was ignorant of the existence of this Order as it was published
only after his arrest and that promulgation of Orders containing penal
provisions with retroactive effect is ultra vires according to the Geneva
Convention. The relevant Order, it was submitted, was published in
the printed Collection of Proclamations and Orders of September
,1967 while the effect of the Order was dated back to June .1967 The
Court rejected this submission and held that since it was printed on
the margins of the Order, as published in the Collection, that the
Order had been made known to the public already on 18 June ,1967
it had to accept this date as the date of publication. The Court decided
that it had judicial notice of the system of publishing Orders in the
Region, namely that during the first weeks of Israeli rule there had been

65 Military Prosecutor v. Hamza, above note .10

 MILITARY COURTS 203

no ready means of publication in ordinary print and written publication

on other means had been employed, usually by stencilled leaflets
distributed in all localities and that no Order was ever published
without its immediate translation into Arabic and that Orders were
collected for serial reprinting at a latter stage.
The Court added that in fact there was evidence that the accused
knew that he was committing the offences alleged since these were
committed more than two and a half months after written publication
of the original Order, when the foreign currency control was common
knowledge in the Region and it was impossible for the accused, an
educated person, not to know about it.
It should be mentioned that according to Article 7 of the original
version of the SPO the jurisdiction of the Military Court was limited
to offences defined in security enactments. This jurisdiction was en-
larged on 25 June 1967 by Article 2 of the Order concerning Juris-
diction in Criminal by virtue of which jurisdiction was
also accorded to try any offence under local law, whether committed
before or after the entrance of the IDF. No reported cases can be
found relating to the trial of offences committed prior to the entrance
of the IDF and thus when a new version of the SPO was issued in
,1970 Article 7 was so worded as to give jurisdiction to try offences
under security enactments as well as local law but omitting the refer-

ence in Article 2 of the Order concerning Jurisdiction in Criminal

Offences to offences under local law even if committed before the
entrance of the IDF. It appears therefore that since the issue of the
new version of the SPO in ,1970 military courts have no jurisdiction
to try offences under local law that were committed before the entrance
of the IDF.

D. RULES OF PROCEDURE AND EVIDENCE IN THE

MILITARY COURTS

.1 The Source of the Rules of Procedure

The SPO contains the essential rules of procedure for trial in a
military court. These rules apply equally to a three-judges court and
to a single-judge court, unless a specific provision exists relating to

66 See also Military Prosecutor v. Zuhad, above note .10

67 Order No. .30
 4 .2 HADAR

the latter only. A general provision in section 10 enables the courts

to fill any gaps found in the Order:

“A Military Court may, in any matter of procedure not prescribed

in this Order, give directions as to procedure as it deems most
suitable for dispensing law and justice”.

Section 10 has served as the basis for supplementing the rules of

procedure missing from the SPO. The indirect source from which
the military courts draw these supplementary rules is the familiar
Israeli Military Justice Law and Israeli law of procedure in general.®
The prototype of section 10 is section 210 of the Israeli Law of
Criminal Procedure, section 460 of the Israeli Military Justice Law
and section 21 of the Defence Regulations.
An interesting question of interpretation of this section has arisen,
namely in what circumstances is the Court free to act according to its

own discretion and when does the silence of the SPO impose a nega-
tive arrangement and thus restricts the power of the court itself to
make supplementary rules?
In one case® the accused pleaded guilty to an offence carrying the
death penalty. The Court was confronted with the dilemma of whether
to accept the plea and convict the accused under the provisions of
the SPO then in force, or to hold that the SPO contained no guidance
in the matter. Relying on section 10 the Court held that, despite the
plea of guilty, the accused should be deemed to have pleaded not
guilty, with the result that it was for the prosecutor to prove his case.
In arriving at this decision the Court was influenced by section 355 of
the Israeli Military Justice Law which provides that where a person is
charged with an offence carrying the death penalty, the ordinary pro-
visions requiring the accused to plead to the charge should not apply
and he should be deemed to have pleaded not guilty. The Court regarded
section 355 as a prototype for filling the lacuna in the SPO.”

68In Military Prosecutor v. Musbah 5 SJMC ,160 the military court observed
that under section 10 of the SPO a charge sheet should not be drawn according
to the ordinary Criminal Procedure Law of Israel, but rather according to the dif-
ferent rules that prevail in Israeli courts-martial by virtue of the Military Jus-
tice Law.
69 Military Prosecutor v. Jaber 1 SJMC .514
70A similar decision was reached in Prosecutor v. Rahman 1 SJMC 20
and Military Prosecutor v. Mustaffa, 1 SJMC .283 See also Military Prosecutor
v. Hassni 2 SJMC 99 and Military Prosecutor v. Wildman, above note ,10
 MILITARY COURTS 205

A conservative way of interpreting section 10 was manifested in

another instance.7! Here both defence counsel and prosecutor applied
to put in an out-of-court written confession made by the accused to a
person who was not intended to be called as a witness. They told the
Court that if it found the confession incriminating the accused would
plead guilty, but if not, he should be acquitted. The Court declined
the application, saying:

“A criminal court does not settle a legal conflict between the parties
and is not an arbitrator between them on legal problems. It does
not accept a confession made by the accused out of court unless
it is in accordance with section 12 of the Evidence Or-
The court decides the issues according to the evi-
dence submitted to it, following prevailing procedure whether
under Chapter II of the SPO or section 10 thereof, according to
which a court may give directions as to procedure which seems
to it most suitable in the interest of justice. There is no provision
in the said Chapter II enabling the court to be an arbitrator be-
tween the parties and it seems to us that it would not be suitable
for doing justice if we exercise our powers under section 10 and
accept the application of the

A question has arisen about the relationship between the provisions

of local law on criminal procedure and the rules of Military Court
procedure specified in the SPO, when offences under local penal law

or under the enactments of the Regional Commander are being tried.

The claim has been that the extrajudicial confession of an
accused should not be admitted in evidence against him on a charge
based on local law, because according to Jordanian criminal procedure

a suspected person may not be interrogated except in the presence of

the Court, adopting the provisions of the Israeli Military Justice Law, in the
absence of a suitable provision in the SPO on the subject, held that as it lacked
jurisdiction to try the accused, the proper decision should be to annul the charge
sheet filed against him.
714 SJMC .108
72 Section 12 of the New Version of the Evidence Ordinance provides:
“Evidence of confession by the accused that he has committed an offence
is admissible only when the prosecution has adduced evidence in relation to
the circumstances in which it was made and the court is satisfied that it was
free and voluntary”.
73 The court gave detailed reasons for its decision.
Military Prosecutor v. Nasser, above note .12
 206 Z. HADAR

an attorney and only after having been informed of his right to have
an attorney. Where the accused has not been so informed of his right
before making his confession or before interrogation, his confession
will not be admitted. According to section 2 of the Proclamation of the
Regional Commander of 7 June 1967 the provisions of Jordanian
criminal procedure remained in force and were to be followed by a
Military Court. In addition these provisions did more justice to the
accused and as criminal law should as far as possible treat an accused
favourably, a Military Court must exercise its discretion under section
10 and direct such procedure as would best serve the interest of justice
and thus reject the extrajudicial confession of the accused not made
in accordance with the provisions of the Jordanian law.
This reasoning was not accepted and the confession of the accused

was admitted in evidence. The Court held that section 2 of the Pro-
clamation, declaring that the existing law remained in force, did not
create a channel of reception requiring the adoption of the provisions
of local law, the former sovereign of the Region not being entitled to
dictate to the Military Commander that for his own purposes he must
follow the provisions of the former law. Sections 9 and 10 of the SPO
established general norms in the law of evidence and procedure, but
enabled deviations therefrom. Under section 10 the Court had to con-
sider not what would seem best for the accused but what is most
suitable in the interest of justice in the special circumstances before it.
The Court might take into account the provisions of local law as
guide-lines, if they were suitable for the administration of justice, but
that was not obligatory, especially if the claims of the defence were
directed against pre-trial procedure. In the instant case no violation
of the relevant basic rules concerning the making of extrajudicial con-
fessions could be found and any plea against admissibility was to be
denied.
A similar decision was reached in another where the accused

was charged with a traffic offence under an Order of the Regional

Commander. The defence raised the preliminary objection that the
Court was barred from trying the accused because by virtue of the
Jordanian Traffic Law he was entitled, within ten days from the date

on which he received notice of his offence, to pay one Dinar and be

exempt from trial. As the accused was not given the opportunity to

75 Military Prosecutor v. Nimmer, above note .41

 MILITARY COURTS 207

pay this sum, the case against him must be dismissed. The Court denied
the objection and held that the SPO and the Order concerning Traffic
Law meant to apply to the Region provisions which ought to be
interpreted separately from those formerly applicable there. The above
two Orders established a system different from that applied by the
local courts and for a Military Court these Orders must prevail. When

a Court is competent to try offences under the Traffic Law Order, its
jurisdiction and procedure is based on the SPO and other Orders
issued by the Regional Commander as a parallel system, independent
from the system under which the local courts try cases and override
it. No provision in Jordanian law applicable to the Region could
derogate from this jurisdiction and any provision in that law contradict-
ing jurisdiction under the SPO would not apply.”

.2 The Prosecutor and Defence Counsel

Section 8 of the SPO provides that:

“The prosecution before a Military Court shall be conducted by

a Military Prosecutor appointed by the Commander of the Region.

The defendant may be defended by a defence counsel”.

Military prosecutors are legally qualified officers belonging to the

Judge Advocate General unit of the IDF. They are regular or reserve
officers called up for a short term of military service to fulfil this
function.
The general words of the second part of section 8 were expanded
and supplemented by a special Order concerning the Defence of the
Accused in a Military Court, which was enacted on the basis of Ar-
ticle 72 of the Geneva Convention. The relevant parts of this Ar-
ticle provide that:

“Accused persons... shall have the right to be assisted by a quali-

fied advocate or counsel of their own choice... Failing a choice
by the accused, the Protecting Power may provide him with an
advocate or counsel. When an accused person has to meet a serious
charge and the Protecting Power is not functioning, the Occupying
Power, subject to the consent of the accused, shall provide an
advocate or counsel”.

6% See also Military Prosecutor v. Osta 4 SJMC .125

 208 Z. HADAR

The Defence in the Military Courts Order was first published on

8 October "19677 and subsequently underwent several changes. Section
2 of the Order prescribes that the accused is entitled to choose as
defence counsel an attorney or he may conduct his defence by him-
self. Section 3 stipulates that where an accused is charged with murder

or some other serious offence or is deaf, dumb or blind the Court

may appoint counsel for him, subject to his consent. Defence counsel
must be appointed if the accused is charged with an offence carrying
the death penalty, subject to his consent. In an amendment to this
Order it was stipulated that in certain cases the legal advisor of the
Regional Commander might also provide the accused with counsel.
This amendment enabled the accused to benefit from the services of
counsel at a stage earlier than that when counsel can be appointed
only by the Court. In a later the conditions for the
appointment of defence counsel were replaced by a more general
provision according to which the Court has to make an appoint-
ment, with the consent of the accused, whenever the accused
is charged with a serious offence. No attempt was made to define the
term “serious offence” which is correlated to the undefined term -ires‘“
ous charge” of Article 72 of the Geneva Convention.
When defence counsel has been appointed by a Military Court or
by the legal advisor of the Regional Commander, his fees and expenses,
including the expenses of witnesses, are re-imbursed from the funds
of the Regional Commander.

.3 The Charge Sheet

Trial by a Military Court is conducted according to Israeli principles

on the basis of a charge.

Section 21 )a( of the SPO states:

“Prior to a defendant being brought before a Military Court, the

nature of the charge and its particulars shall be entered on a charge
sheet which shall be filed in court by a Military Prosecutor... A

copy of the charge sheet shall be delivered to the defendant prior

to his

77 Order No. .143

78 Order No. 400
 MILITARY COURTS 209

Section 21 )b( and )c( continues:

)b(“ At the commencement of the trial the charge-sheet shall

be read before the defendant.
)c( The defendant shall be asked whether or not he admits
the charge of the facts”.

The trial proceeds according to the plea of the accused.”

.4 The Translation
Trial before a military court is conducted in Hebrew. As the accused
often does not understand the language and as witnesses may testify
in some other language, translation is needed. Section 12 of the SPO
provides for the appointment of an interpreter to translate to the
accused the proceedings and the decisions of the Court. The accused

may waive his right to translation or object to the interpreter and ask
for his replacement.

.5 The Record
The proceedings of all military court trials must be recorded in
writing. Section 15 of the SPO provides that the presiding judge shall
keep a record of the hearings which will contain the plea of the
accused, the testimony of the witnesses, particulars of the exhibits, the
judgment of the Court (its findings and the decision whether to
convict or acquit the accused) and the sentence imposed.

.6 Publicity
Military Court trials are held in public in buildings located in the
centre of the important towns of the Region so that the public has
convenient access to them. Only in specific limited cases may the
Court conduct its proceedings in camera. Section 11 of the SPO pro-
vides in this respect as follows:

)a(“ A Military Court shall conduct the hearings which take

place before it in open court; however, a Military Court may
order that the whole or any part of a hearing before it shall take
place in closed court if it is of the opinion that it is proper to
do so for reasons of the security of the IDF, the security of the

79 Regarding the form of the charge sheet, see above note .68
210 Z. HADAR

public, the defence of morals or the well-being of an infant.

)b( Where a Military Court has directed that a hearing shall
take place in closed court, it may permit a person or group of

persons to be present during all or part of the hearing”.

.7 The Presence of the Accused

Under the SPO the accused is given an almost unlimited right to
be present at his trial. This right is subject only to his good conduct
during the trial. Accordingly, a military court is not entitled to try him
in his absence. Section 35 prescribes:

Every person tried in a Military Court shall as long as he

conducts himself properly be entitled to be present throughout
all proceedings in the trial.
)b( If he conducts himself improperly, the court may, in its
discretion, order the defendant to be removed from the court

room and the proceedings in the trial to continue in his absence,

provided that it shall cause the defendant to be informed of what
is taking place during the proceedings of the trial and the de-
fendant shall be given the possibility of defending himself”.

The right of the accused to be present at his trial is also his duty
and he is not allowed to obstruct the proceedings by being absent.
When the accused does not appear voluntarily at his trial or when it

seems to the Court that he might not appear, the Court may issue
an order enforcing his appearance. Section 16 )b( of the SPO pro-
vides that:

“A Military Court may any time issue a warrant against a defend-

ant, if it sees need therefor in order to compel his appearance at
the trial at the appointed time”.

However, under section :)c(

“The court may, if it thinks it proper, permit the defendant to

remain outside the court during the whole or part of the trial

on such terms as it shall

 MILITARY COURTS 211

.8 The Source of the Rules of Evidence

Section 9 of the SPO provides that:

“Military Courts shall as regards the law of evidence proceed

according to the rules prevailing in Courts-martial trying soldiers,
provided that a Military Court may deviate from the rules of
evidence for special reasons which shall be recorded—if it deems
it just to do so”.

This section introduces into the Military Courts the whole body of
the law of evidence as applied in civilian courts in Israel since courts-
martial under the Israeli Military Justice Law are required to apply the
ordinary rules of evidence binding in criminal matters in the civilian
courts of the State.
The discretion accorded to the Military Courts to deviate from the
rules of evidence in justified cases exists in section 20 of the Defence
Regulations but not in the Israeli law applied by the ordinary courts

or by Courts-Martial. It may be said that, notwithstanding this

discretion, the Military Courts have remained faithful to the ordinary
rules of evidence and have declined to deviate from them. This is
exemplified by the case® in which after the prosecutor had concluded
his evidence, it emerged that there was nothing to implicate the ac-
cused except some hearsay evidence. In the result the Court held:

“I do not find here any reason to deviate from the rules of evi-

80In Military Prosecutor v. Sahur 5 SJMC 174 it was held that under section 9 of
the SPO, the court must apply the provisions of a new amendment to the Israeli
Law of Evidence, applicable in courts-martial, that the accused’s refraining from
giving evidence at his trial could strengthen and coroborate the evidence adduced
by the prosecution.
In Order No. 801 of 28 August ,1979 the Regional Commander adopted the
new trend expressed in the Israeli amendment to the Law of Evidence and enacted
a similar provision.
81 Military Prosecutor v. Abu Armana, 1 SJMC .68 See also Military Prosecutor
Abu-Kammar, 3 SJMC .100 In Military Prosecutor v. Hadi, 1 SJMC ,543 the
Court refused to deviate from the ordinary rules of evidence and allow the
accused to withdraw his plea since such change was permissible only if the
plea was made in error without knowing the meaning of the plea. See also
Military Prosecutor v. Badrie 2 SJMC ,181 where the Court observed that in
the given circumstances it would have been ready to deviate from the rules
of evidence, if necessary, in order to admit in evidence a voluntary extrajudicial
confession of the accused, given in Arabic but recorded by contemporaneous
translation into Hebrew.
 212 Z. HADAR

dence. The fact that the accused may be acquitted is certainly no

reason to deviate from the rules of evidence and I am of the

opinion that the Court may deviate from the rules of evidence
only when special circumstances exist which do not enable evi-
dence to be adduced in the ordinary way”.

.9 The Burden of Proof

According to Israeli legal principles, in order to convict a per-

son in the Military Courts, the prosecutor has to prove his guilt
beyond reasonable doubt. The prosecutor may do so by adducing
evidence supporting his case and by cross-examining the witnesses of
the accused. The evidence is adduced in two stages. In the first stage
the prosecutor calls all his witnesses, who give their testimony in
answer to questions put to them by him; afterward they may be cross-
examined by the accused and re-examined by the prosecutor. Then,
under section 30 of the SPO, if it seems to the court that the evidence
brought by the prosecutor is insufficient to prove the case even prima
facie, it must acquit the accused. On the other hand, if it seems to
the court that the prosecutor has prima facie proved his case, the
burden shifts to the accused.® This is the second stage in which the
accused may call his own witnesses, including himself. These witnesses

may also be cross-examined by the prosecutor and re-examined by

the The accused cannot be called upon to testify by the

82 There may be exceptions to the general rule. Thus, section 94 of the SPO,
which is based on the text of section 78B of the Defence Regulations, provides
that where a person is accused of an offence under security enactments, the onus
is upon him to prove that his case comes within any exemption, licence, justifi-
cation, consent or authorisation. In Military Prosecutor v. Elal, 1 SJMC 42
(leaving the Region without a permit) it was held that the onus of proving the
existence of a permit rested on the accused, but even if he did not adduce evidence,
the evidence of the prosecution which lent support to the case for the defence
could be taken into consideration. Since the prosecution had in fact proved that
the accused had a permit, the burden was on it to prove that because of a
contravention against some condition attached to the permit, it was cancelled.
In Military Prosecutor ‫ל‬. El Hawari 2 SJMC ,108 the court remarked that there
was nothing exceptional in section 94 and its inclusion was not to deviate from
the ordinary principles of criminal law and that even without it the burden to

prove justification or excuse rested on the accused. See also Military Prosecutor
v. El Gaffri 1 SIMC .429
83 Two remarks regarding the rules of evidence may be added. The first is in rela-
tion to the judicial notice which the military courts have of the unlawful as-
sociations operating in the Regions. In Military Prosecutor v. Hamin 1 SIMC ,54
 MILITARY COURTS 213

court or to answer questions; he decides voluntarily whether to give

evidence and only after the prosecutor has made out a prima facie

case.

.10 The Adjudication and Sentence

Under section 32 of the SPO:

“Upon the conclusion of the case for the defence the Military
Prosecutor may sum up his arguments and after him the defen-
dant or his counsel may sum up his arguments”.

This order of summing-up is in accord with that prevailing in Israeli

Courts-Martial and in reverse order to that prescribed in section 43
of the Defence Regulations. At the conclusion of the final addresses
of both sides, the Court has to give its judgment.
If the Court decides to acquit the accused, acquittal must be pro-
nounced immediately and the accused released from custody. No
confirmation of such a judgment by the Regional Commander or other
authority is needed. If the Court convicts the accused upon any charge,

the court took judicial notice of the existence, nature and purpose of the
PLO and held that it was an unlawful association within the meaning of section
84 of the Defence Regulations. See also Military Prosecutor v. Hesein 1 SJMC
.50 In Military Prosecutor v. El Gaffri, above note ,82 judicial notice was taken
of the “El Fatah” organization. See also Military Prosecutor v. Abu Kamar, 33
SJMC .100 On the other hand, in Military Prosecutor v. Farres 2 SJMC ,34 the
Court decided that it did not have judicial notice that an association called
“Pupils Association” was a branch of “The Popular Front for the Liberation of
Palestine”.
The second remark refers to the attitude of the Military Courts regarding their

power to convict on the basis of extrajudicial confession only. In Military Prose-

cutor v. Abu Brakat 1 SJMC 35 the accused was acquitted because there was
no evidence establishing his guilt other than his extrajudicial confession. According
to the Israeli rules of evidence a conviction can be founded on an extrajudicial
confession only if there is something evidential in addition to it (Bader v. The
State of Israel )1980( 34 P.D. )2( 818 following the English case R. v. Sykes 8
Gr. App. R. ,233 236 .)).A.C.C(
In Military Prosecutor v. Masri, 1 SJMC 223 the Court remarked that there
was no need for additional evidence to an extrajudicial confession, given freely
and voluntarily, in order to convict the accused. This has not been followed in
subsequent cases.
Some courts, were prepared to convict on an extrajudicial confession when they
found support for it in an extrajudicial confession of a co-accused; see, for
example, Military Prosecutor v. Farres above and Military Prosecutor v. Suliman
2 SJMC 70 and 4 SJMC .166 Other Courts have reached the opposite decision;
see Military Prosecutor v. Enan 3 SJMC 44 and Military Prosecutor v. Buzu,
ibid., .82
24 Z. HADAR

it shall proceed to pass sentence upon him, but before that is done
both sides may bring evidence and address the court as to sentence.
According to section 47 )a( of the SPO, a Military Court may
impose on a person it convicts the penalty prescribed for the offence
for which he was convicted or a lesser penalty. The prescribed penalties

are usually imprisonment or fine. Section 47 )d( provides that where

the court sentences a person to imprisonment, it may direct that hard
labour be imposed and that the Regional Commander shall decide
what kind of work is to be so imposed. In practice the Regional Com-
mander has never exercised this power and in fact hard labour does
not exist in the Territories.
Section 47 )e( empowers a military court which has imposed a
determinate period of imprisonment to direct that the whole or part
of the sentence should be suspended.
Again under section 48 )a( a military court which has convicted a

person may, in addition to or instead of the penalty imposed, order

that he should give an undertaking to refrain from committing an
offence for a period determined by the court but not exceeding three

years. Sureties may be required and a sum, not exceeding the fine
which the court may impose for the offence of which the person was
convicted, is exigible. Section 49 adds that a court which has convicted

a person may in addition to the penalty, order him to pay damages

to an injured party being one of the authorities or persons in relation
to whom civil proceedings in local courts have been restricted by
Order of the Regional Commander.™
A single-judge court is limited in its sentencing power as regards
the term of imprisonment and the amount of fine it may

84 Order No. .164

85 Originally a single-judge court was empowered to impose imprisonment for a
maximum term of two years. In an amendment of the SPO this was increased
to five years. In Military Prosecutor v. Abu Rob 1 SJMC ,305 doubt was
expressed whether this referred to each offence with which the accused was charged or
to the total term of imprisonment which a single-judge court could impose, re-
gardless of the number of the offences included in the charge sheet. This doubt

was resolved by a subsequent amendment to the SPO clarifying that a single-

judge court could not impose a sentence of imprisonment for a total term of

more than five years whatever the number of offences. In Military Prosecutor
v. Nassra, 2 SJMC ,105 the question was raised whether the sentencing power of
a single-judge court was that of a District Court or of a Magistrates Court,
when the accused was charged under the Defence Regulations which distinguish
 MILITARY COURTS 215

A three-judge military Court may impose the death penalty on per-

sons convicted of one of the few offences carrying such punishment.

Section 47 )a( )6( of the SPO provides that a military court may not
impose the death penalty unless two of its judges are legally qualified
and the sentence is imposed unanimously. Section 51 )b( adds that

a court shall not impose the death penalty on an accused under 18

years of age at the time when he committed the offence. Although the
death penalty has been imposed once or twice, it was always commuted
by the Regional Commander and therefore never carried out.®
There is no provision in the SPO requiring a military court to give

reasons for its decisions. The practice, however, based on Israeli prin-
ciples, is that the judgment and sentence contain full details of the
court’s findings and the manner in which its conclusions were reached.
Section 20 of the SPO provides:

“Decisions of a Military Court, including judgment and verdict,

shall be taken by a majority vote. Where no majority exists re-
garding the mode or measure of penalty, the judge who has
proposed the severest mode or measure of penalty shall be
deemed to have joined in the view of the judge who has made

a proposal closest to his own. For the purpose of this section

the presiding judge shall determine which is the severest pen-

This section is similar to section 392 of the Israeli Military Justice

Law.

between the sentencing powers of the two courts. It was held that the only relevant
question was the sentencing power granted to a single-judge court by the SPO.
Military Prosecutor v. Abu Medin, 1 SJMC ,22 the court decided that it was
not bound by the provision of the local law which imposed the mandatory death
penalty for murder and that by virtue of the SPO it could instead impose life
imprisonment.
87 See the majority decision under this section in Military Prosecutor v. Dragma,
4 SJMC .200
 ADDENDUM

Rules of Evidence

Military Courts proceed as regards the law of evidence according

to the rules prevailing in courts-martial trying soldiers. Hereafter are
the main provisions in relation to evidence in Courts-Martial trying
soldiers, as included in the Military Justice Law, :57151955

General rules .476 Save as otherwise provided in this Law, the rules
of evidence of evidence binding in criminal matters in the law courts
of the State are binding also in a court martial and before
an examining judge.

Confession of .477 A court martial shall not admit a confession of an

an accused accused person as evidence unless it is satisfied that he
person as had made it voluntarily.
evidence

Voluntary con- .478 The fact that a statement by an accused person con-
fession of an taining a confession has been taken otherwise than in
accused person
accordance with the rules set out in sections 266 to 272
shall not prevent the court from ruling that the accused
has made the confession voluntarily.

Statement by .479 A statement by an accused person is not admissible

an accused as evidence against other accused persons.
person
against other
accused
person

Printed .480 A printed copy of Army Orders, or any printed copy

copies of of another publication issued by the C.G.S. or on behalf
official of the Army and certified by the as an official pub-
military
publications lication within the meaning of this section, which contains
any order, direction or appointment shall be prima facie
evidence of the giving, issuing or making of the order,
direction or appointment and of the contents thereof.

216
 CHAPTER VI

APPLICABILITY OF MULTILATERAL CONVENTIONS

TO OCCUPIED TERRITORIES

Theodor

A. INTRODUCTION

The failure at the 63rd International Labor Conference ,aveneG(

)1977 to adopt the Report of the Committee on the Application of
Conventions and Recommendations was regarded by many delegates

as yet another example of denial of due process by that organization

and may have influenced the United States in its decision to withdraw
from ILO.‘ The decision of the Conference, although primarily pol-
itical, had certain legal implications in so far as it suggested that an
occupying power, such as Israel, may not apply international labor
conventions to which it is a party to territories that it occupies.
This was not the first time that such a question had been presented
in an international organization. In 1974 and in 1975 the International
Civil Aviation Organization had decided that Jordan and not Israel
controlled the application of the Chicago Convention? to the airport
of Jerusalem.
The object of this article is to consider whether an occupying power
has the right or the duty under international law to apply multilateral

* Professor of Law, New York University.

This article has been reprinted in this volume from 72 AJIL )1978( ,542 after
slight alterations by the author, with the kind permission of the American
Journal of International Law.
The views expressed in this article are the author’s and are not necessarily those
of Israeli official authorities.
1 See in general, Grupte, U.S. Quits and Touches Off a Furor in U.N. N.Y.
Times, Nov. ,2 1977 §A at ,13 col. ;1 Raskin, Struggle over Pullout, N.Y.
Times, Nov. 3 ,1977 § A at ,10 col. .1 See also press briefing by the Secretary of
Labor, ‫ת‬. Ray Marshall, Nov. ,1 .1977 72 AJIL 375 ,)1978( 16 ILM 1
.)1977( :
2 Convention on International Civil Aviation, done Dec. ,7 ,1944 61 Stat. ,1180 TIAS
No. ,1591 15 UNTS .295
2077
 218 T. MERON

treaties to which it is a party in the territories which it occupies, fo-

cusing on the case of the territory west of the Jordan River, which
Prior to the Six Days’ War was under the jurisdiction of J ordan and

were used even by the British ( Mandatory) Government? (herein-

after “the territory”), For the purposes of this article, it will be as-

tween these bodies of law. We shall not consider, xcept in passing,

conventions designed to apply, in whole or in part, to

the Laws and Customs of War on Land, Particularly Ar-

ticles 4256 of the Regulations annexed to the Convention,‘ the Fourth
Geneva Convention of August ,12 1949 Telative to the Protection of
Civilian Persons in Time of and the Hague Convention of 1954
for the Protection of Cultural] Property in the Event of Armed
It is obvious that an Occupying power is duty bound to apply such
conventions in the territories which ‫א‬ occupies, whether because
they are declaratory of customary international law (as is true of the
Hague Regulations of )1907 or because it has ¢xpressed its consent
to be bound by them (as in the case of the Fourth Geneva Con-
vention” or the Hague Convention of ,)1954
In practice a number of questions have arisen with regard to the
applicability to the territory of other multilateral] conventions, but they
will not be considered because of limitations of space and because they
have been on a Pragmatic basis, without giving rise to 4
broader discussion of the legal issues involved,® due perhaps to the

3 See Administrative Divisions Proclamations under Article 11 of the Palestine

Order in Council, ,1922 Palestine Gazette ,900 1 July ,1939 Pp. .487
# Signed Oct. ,18 ,1907 36 Stat. ,2277 Ts No. ,539 ] Bevans .631
5 Dated Aug. ,12 ,1949 6 UST ,3516 TIAS No. ,3365 75 UNTS .287
6 Done May ,14 ,1954 249 UNTS ,215 Art. ;5 Regulations for the Execution of
the Convention, Arts. 13 and ;19 Protocol, Para. ,)14
7 Regarding the Israeli views on the applicability of the Fourth Geneva Convention
to the territory, see below, note 32
8 Article 29 of the Convention on the Law of Treaties, done at Vienna, May ,23
 APPLICABILITY OF MULTILATERAL CONVENTIONS 219

reluctance of the Government of Israel to be wedded to a particular

judicial doctrine regarding the status of the territory and the appli-
cability therein of general multilateral conventions.

B. INTERNATIONAL LABOR CONVENTIONS

The “Resolution Concerning the Policy of Discrimination, Racism

and Violation of Trade Union Freedoms and Rights Practised by the
Israeli Authorities in Palestine and in the Other Occupied Arab Terri-
tory,”® adopted by the 59th International Labor Conference in ,1974
condemned ‘“‘the policy of racial discrimination and violation of trade
union freedoms” allegedly pursued by the Israeli authorities and invited
the Governing Body and the Director-General of ILO to use all means
at the disposal of the ILO to put an immediate end to these violations
and discriminatory practices. The preambular part of this resolution

,1969 UN Doc. A/Conf.39/27 )1969( at ,289 63 AJIL ,875 884 )1969( was not
intended to deal with the question of extraterritorial application of treaties and is
not helpful as regards territories under belligerent occupation. See the Commentary
on Article 25 of the International Law Commission’s Draft Articles on the Law
of Treaties, Report of the International Law Commission to the General Assembly,
21 GAOR, Supp. .oN( ,)9 UN Doc A/6309/Rev. 1 ,)1966( reprinted in [1966],
2 Y.B. Int. L. Comm. ,169 ,213 UN Doc. .reS/44 A/1966/Add.1.
Following the Six Days’ War, the Government of Israel and the United Nations
Relief and Works Agency for Palestine Refugees in the Near East )AWRNU(
agreed that UNRWA would continue its assistance to refugees in the West Bank
and the Gaza Strip and that Isracl would recognize that the Convention on the
Privileges and Immunities of the United Nations, done at New York, Feb. ,13
,1946 21 UST ,1418 TIAS No. ,6900 1 UNTS ,15 43 AJIL Supp. 1 ,)1949( (to
which both Israel and Jordan were parties) governed the relations between the
government and UNRWA. Exchange of Letters of June ,14 1967 constituting a
provisional agreement concerning assistance to Palestine Refugees, 620 UNTS
.183 It is arguable that Israel would have had the duty under Article II to apply
this Convention to UNRWA on the West Bank even in the absence of such a
special agreement. See in general Military Prosecutor v. El Nag’uli, 1 SJMC .2023
The Government of Israel agreed on the administrative level to grant West
Bank institutions of higher learning the right to import, free of duty, books and
publications in accordance with the [UNESCO] Agreement on the Importation of
Educational, Scientific and Cultural Materials, done Nov. ,22 ,1950 131 UNTS ,25
to which both Israel and Jordan were parties. A request from another party to
the European onvention on Mutual Assistance in Criminal Matters done at
Strasbourg, Apr. ,20 ,1959 Europ. T.S. No. ,30 472 UNTS ,185 to execute a letter
rogatory with regard to a resident of the West Bank has been executed by the
Israel Government through the cooperation of the West Bank judiciary system.
® International Labor Conf., 59th Sess., Record of Proceedings 35152 )1974(
{hereinafter Int. Labor Conf., Proc.].
 20 T. MERON

referred to the ratification by Israel of ILO Convention No. 87 con-

cerning Freedom of Association and Protection of the Right to Organ-
which Jordan had not ratified, and Convention No. ,111 con-
cerning Discrimination in Respect of Employment and Occupation,"
to which both Israel and Jordan had become parties prior to the Six
Days’ War. While the operative part of this resolution did not explicitly
refer to these conventions, the implication was that Israel was guilty
of failure to apply their provisions in the occupied territories.
The opponents of the resolution argued that it constituted a prejudg-
ment and condemnation without inquiry or fact finding and thus
violated the basic procedures of the ILO. The supporters of the reso-
lution argued that the regular ILO procedues for dealing with alleged
violations of freedom of association or of the principles of nondis-
crimination were designed for normal situations and were not suitable
for extraordinary situations such as occupation. No one appears to have
questioned the need to apply the provisions of the two conventions
to the occupied
The ILO Constitution contains provisions dealing with application
of conventions to nonmetropolitan but does not mention
the case of belligerent occupation. Convention No. 111 provides that
the parties will follow a national policy designed to promote equality
of opportunity and treatment in employment by methods appropriate
to national conditions.14 The preamble to the Convention indicates that

10 Adopted July ,9 ,1948 69 UNTS .17

11 Adopted June ,25 ,1958 362 UNTS .31
12 Int. Labor Conf., 59th Sess., Proc. 34954 ,41727 ,46770 47778 .)1974(
13 Instrument for the Amendment of the Constitution of the International Labor
Organization, dated Oct. ,9 ,1946 62 Stat. ,3485 TIAS No. ,1868 4 Bevans ,188
15 UNTS ,35 Art. ,35 providing, inter alia, for the duty of members that have
ratified ILO conventions to apply them to non-self-governing nonmetropolitan
territories, except where they are inapplicable because of local conditions. Re-
garding ILO conventions that have been specifically designed for nonmetropolitan
territories, see C. Jenks, The Common Law of Mankind 23437 .)1958( Because
of the varying stages of economic and social development of such territories
and for other reasons, Jenks did not support suggestions that ILO conventions
should be automatically applicable to nonmetropolitan territories, Id. at .247 As
regards ILO conventions in time of war, see Wolf, L’Interdépendance des Con-
ventions internationales du Travail, )II-1967( 121 Rec. des Cours, :113 5
14 .2 It appears that prior to the beginning of the occupation, Jordan had not
adopted legislation aimed specifically at implementing Convention No. .111 The
first report concerning that Convention, submitted by Jordan to the ILO in ,1967
drew attention to the constitutional guarantees of equal opportunity as regards
 APPLICABILITY OF MULTILATERAL CONVENTIONS 221

discrimination is regarded as a violation of human These

provisions can be interpreted narrowly, as applicable to the national
territory proper, or broadly, as referring to a national policy to be
followed in other territories controlled by the party, such as occupied
territories. In light of the significance of the Convention for the pro-
tection of human rights, there would be greater merit to the latter
interpretation.
Neither in 1974 nor subsequently have questions been raised by
Israel or other states regarding the clear duty of Israel to apply the
provisions of Convention No. 111 to workers from the territory who

are employed in Israel, as to all the other workers in Israel. Reports

submitted by the Director-General of the and by the Govern-

access by nationals to employment and stated that the Labor Code was in con-
formity with the principles of the Constitution. Labor legislation was being pre-
pared with a view to granting Arab and foreign workers equal opportunity on
the basis of reciprocity. Int. Labor Conf., 51st Sess., Third Item on the Agenda:
Information and Reports on the Application of Conventions and Recommendations,
Summary of Reports on Ratified Conventions, Report III, Part I at 206 .)1967(
15 Article 6 of the Convention deals with its applicability to nonmetropolitan terri-
tories in accordance with the Constitution of the ILO. Brownlie reprints the text
of both Conventions in his Basic Documents on Human Rights )1971( at ,279
.296 Regarding the relevance of the Conventions for human rights, see L. Sohn
& T. Buergenthal, International Protection of Human Rights )1973( ,517 .52333
In its Advisory Opinion on Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 ,)1970( the International Court of Justice observed that,
given the fact that South Africa’s presence in Namibia had been declared illegal
by the Security Council, member states were under an obligation to abstain from
entering into treaty relations with South Africa in all cases in which South Africa
purported to act on behalf of or concerning Namibia. As regards existing bilateral
treaties, member states must abstain from invoking or applying those treaties or
provisions of treaties concluded by South Africa on behalf of or concerning Namibia
which involve active intergovernmental cooperation. The Court added, however,
that the same rule could not be applied to certain general multilateral conventions,
“such as those of humanitarian character, the non-performance of which may
adversely affect the people of Namibia.” [1971] ICJ Rep. ,16 .55 The case for
the application of general multilateral conventions of a humanitarian character
to which the power in control is a party is even stonger in the case of belligerent
occupations, which have not been declared illegal by the UN Security Council

or the International Court of Justice. Regarding “general treaties, see

Separate Opinion of Judge Jessup in the South West Africa Cases, Preliminary
Objections, [1962] ICJ Rep. 319 at .428
16 See Progress Report on the Study of the Situation of Workers of the Territories
Occupied by Israel, submitted by the Director-General of the ILO to the 199th
Session of the Governing Body, in Activities of the ILO, ,1976 Report of the
 222 T. MERON

ment of Israel to the ILO, in the context of allegations of discrimination

in violation of Convention No. ,111 dealt with the situation not only
of Arab workers from the territory employed in Israel but also of
Arab workers employed in the territory itself. The Government of
Israel stated that Jordanian labor law was being applied on the West
Bank?’ and that it complied, in respect to the inhabitants of the West
Bank, with “every one of the [ILO]
In response to a request submitted in 1977 by the Committee of
Experts on the Application of Conventions and Recommendations
for information on the situation of workers in the occupied terri-
tories,!® Israel submitted a report which concluded that both the
policy and the practice of the government “have been in full accord
with the provisions of Convention No.
When that report was brought up for discussion in the tripartite
[Conference] Committee on the Application of Conventions and Re-
commendations, a number of representatives objected to the discussion

on the ground that the occupying power should not be allowed to

apply the Convention to the territory which it occupied and which

was under the sovereignty of another state. The Chairman of the

Committee expressed the view that the issue was the protection of
workers under a convention which had been ratified by Jordan, Syria,
Egypt, and Israel, the latter being the only state which could at that
time assure the protection of such workers. A motion that the report
by Israel on the application of Convention No. 111 not be discussed

was not carried in committee,?4 but the report of the Committee was

Director-General to the International Labor Conference ,47 ,51 4247 ,1977( Part .2
ILO has been receiving reports regarding Arab workers in the territory submitted
by Israel in response to the organization’s requests as weil as reports submitted

on their own initiative by Arab governments and Arab trade unions.

17 Progress Report, above note ,16 at .55
18 Israel Information Centre, Humgn Rights in the Administered Areas, Information
Briefing No. 10 .)1976(
19 Int. Labor Conf., 63d Sess., Report of the Committee of Experts on the Appli-
cation of Conventions and Recommendations, Report III, Part ,A4 p. 230 .)1977(
20 Int. Labor Conf., 63d Sess., Prov. Rec., Third Item on the Agenda: Information
and Reports on the Application of Conventions and Recommendations, Report
of the Committee on the Application of Conventions and Recommendations, 2552
at 2558 .)1977(
21 Jd. at .25612562 See also the letter dated June ,9 1977 from Secretary-Gene-
ral Francis Blanchard to the President of the Conference. Prov. Rec., 12th sitting,
at .1231
 APPLICABILITY OF MULTILATERAL CONVENTIONS 223

challenged in the plenary by delegates who argued that neither the

Committee of Experts nor the [Conference] Committee should accept
and examine a report submitted “by an illegal authority on the appli-
cation of Convention No. 111 on territories... occupied by military
force and... not under the sovereignty of those authorities.” That was
why the supervision of the application of the Convention was entrusted
to the Director-General of the ILO and to the Governing
Neither committee was a proper forum for review of the conduct of
the occupying power** and ILO procedures were not applicable to

a case of
The Government delegate of Israel complained of the lack of
consistency but did not raise the question of estoppel. In ,1974 Con-
vention No. 111 was invoked to obtain a condemnation of Israel in
violation of due Now, when the application of the Conven-
tion was to be reviewed by objective experts, Israel was told that it
could not apply the Convention, which had been ratified by all the
states concerned and which provided the only agreed international
standard for determining whether a state had practised discrimination.”®
Professor Roberto Ago, the Government delegate of Italy, stated
that, given the fact that all the states concerned had ratified it, Con-
vention No. 111 was in force in the occupied territories when the
occupation began. Israel party to the Convention was under an
obligation to apply it; but, even if it were not a party, it would be
under such an obligation with regard to conventions that were in
force in the occupied areas.?” Nothing in the ILO Constitution excluded

delegate of Iraq, on behalf of all the Arab delegations, id., 28th sitting,
at .3110
In its 1971 advisory Opinion on Namibia (see above note ,)15 the International
Court of Justice observed that “[p]hysical control of a territory, and not sov-
ereignty or legitimacy of title, is the basis of State liability for acts affecting
other States.” [1971] ICJ Rep. ,16 .54
23 The Government delegate of Egypt, 28th sitting, at 3125
,d247 at .3115 See also statement by the Government adviser of the USSR, id. at
.3112 As to the obligations of member states with regard to ILO conventions
which they have ratified, see Arts. 19 and 22 of the ILO Constitution.
25See also the statement by the Government delegate of the United States, 28th
sitting, at .31193120
.d267 at .3118
.d277 at .3116 Professor Ago based this conclusion mainly on the fact that, during
the Second World War, Nazi Germany respected the exterritoriality of certain
buildings in Rome in accordance with treaties concluded between Italy and the
24 T. MERON

the duty to report annually on the action taken to give effect to obli-
gations undertaken by a state. This was true not only for the state’s
territory but for all territories over which it exerted any kind of
authority.
Following a debate in which the question of the right of Israel to
apply in the territory the provisions of Convention No. 111 was not
always distinguished from the question whether Israel had the right
to report to the ILO on such application of that Convention (question
of proper supervisory procedures), the entire report, not only the
part concerning Israel, was not approved for lack of a quorum,” to
the satisfaction of delegates of many countries that had been men-
tioned in the report as being in violation of various ILO conventions.
It should be observed that Jordan has a comprehensive and advanced
labor law: Labor Law No. 21 of ,1960 as amended in 19657 The
Israeli military government in the territory has not interfered with the
operation of that law except to a very limited extent and in marginal
matters.2° However, one of the Orders promulgated by the military
government, Order No. ,439 pertained to the amendment of the Jor-
danian labor law. That Order was challenged before the Israeli Supreme
Court, sitting as the High Court of Justice, in the case of the Christian
Society for the Holy Places v. Minister of Defence,*! as exceeding the
legislative authority of the occupying power under Article 43 of the

Holy See. Can such a general conclusion be drawn from this case? For a view that
the occupant may suspend commercial treaties entered into by the legitimate sov-
ereign of the occupied territory and involving such territory, see G. von Glahn, The
Occupation of Enemy Territory )1957( ,212 G. Schwarzenberger takes the view that
the occupant does not succeed to the obligations of the dispossessed government
under a concession agreement concluded by the latter. 2 International Law )1968(
.34344
28In the ILO, proposals are often not adopted through the technique of preventing
the required quorum from being obtained. See Art. 20 of the Standing Orders of
the International Labor Conference and Art. )173 of the ILO Constitution. For
the results of the vote, see 28th sitting, at .3127
29 Law No. 21 of ,1960 Off. Gaz. No. ;1491 Law No. 2 of ,1965 Off. Gaz. No. .1818
30 Orders Nos, ,37 ,95 ,181 ,256 ,408 ,420 ,430 ,433 ,439 ,445 ,446 ,453 ,514 ,515

,662 .663
31 )1972( 26 PD )1( ,574 summarized in English in )1972( 2 Israel Y.B.H.R. ;354
see also Al Ja’bari v. Al’-Awiwi )1971( 42 LL.R. ;484 Dinstein, The Power of
Legislation in the Administered Territories, 2 Iyunei Mishpat ,)1972( ;505 Judicial
Review of Acts of the Military Government in the Administered Territories ,)1973(
3 ibid., ;330 The Judgment in the Rafiah Intersection Case ,)1974( 3 ibid., 934
(in Hebrew).
 APPLICABILITY OF MULTILATERAL CONVENTIONS 225

Hague Regulations and Article 65 of the Fourth Geneva Convention.

The military government obviously felt that the alternative of not
amending the Jordanian Law would bring about the continuation of
the labor dispute and the abdication of an important governmental
function. This case may throw some light on the issue under consi-
deration.
The Jordanian labor law provided that, in case of a labor dispute,

an arbitration council should be appointed, comprising, inter alia,

representatives chosen by employers’ and employees’ associations. Faced
with a labor dispute between the Christian Society and its employees
and also with the fact that, since such associations did not exist in
Jordan, the establishment of an arbitration council was impossible,
the military government amended the Jordanian law by Order No.
,439 providing for an alternative way of forming the arbitration council.
It was this Order that was challenged by the employer.
The Court emphasized that an occupying power was duty bound to
be concerned with the welfare of the local population. Especially in

cases of prolonged military occupation, when important changes occur

in the economic and social conditions of the occupied territory, new
legislative measures may be essential to adapt the law to the changing
needs of the population. When local laws do not make it possible for
the military government to carry out the duties incumbent upon it in
relation to the local population, a case exists in which the occupant is
“absolutely prevented” under Article 43 of the Hague Regulations
and the military government may change the law in the interest of
the population. Order No. 439 was therefore not ultra vires the legis-
lative authority of the occupant under Article .43 Neither was there

any violation of Article 65 of the Fourth Geneva Convention which

prohibits retroactive penal H. Cohn J. in a cogent dis-

32 In this case and in a number of other cases, the High Court of Justice put various
Orders of the military government to the test of the Fourth Geneva Convention
and of the Hague Regulations by specific consent of the Attorney General without
laying down any general ruling as to the applicability of these instruments of the
occupied territories. The Government of Israel has claimed that the status of
the territory is sui generis, that the legal standing of Jordan in the West Bank

was that of a belligerent occupant following an unlawful invasion, that territory

controlled in war does not always become “belligerently occupied territory” to
which the rules of the Fourth Geneva Convention apply, and left open the
question of the applicability of the Convention. The Attorney General expressed
his personal opinion that the Fourth Geneva Convention did not apply to the
226 T. MERON

senting opinion expressed the view that the Order was ultra vires
since the power of the occupant did not extend to the introduction of

a new public order, especially where a comprehensive and progressive

local law existed. H. Cohn J. noted that as regards arbitration the
Jordanian law was more advanced than the Israel law.
Doubts are sometimes expressed as to whether the concern of an
occupant for the welfare of the local population is always sincere.
To deal with that problem, a comment on the Christian Society case
has suggested that the new legislation promulgated by an occupant
ostensibly in the interest of the population should be put to the test of
whether such new legislation corresponds to the legislation in force
in the occupant’s own country.** This writer accepts the view that
the occupant may take measures affecting local laws not only when
required to do so for reasons of military necessity but also when such
changes are required in the interest of the welfare of the local popu-

occupied territories but stated that the government “decided to act de facto,
in accordance with the humanitarian provisions of the Convention.” Shamgar,
The Observance of International Law in the Administered Territories, 1 Isr. Y.B.H.R.
)1971( ,262 ,263 .26566
See in general Blum, The Missing Reversioner: Reflections on the Status of
Judea and Samaria ,)1968( 3 Isr. L. R. ;279 Shapira, The Six-Day War and the
Right of Self-Defence, )1971( 6 ibid., ;65 E. Lauterpacht, Jerusalem and the Holy
Places, ;)1968( Schwebel, What Weight to Conquest? )1970( 64 AJIL .344
For a criticism of the position of Israel with regard to the status of the West
Bank and the applicability of the Fourth Geneva Convention, see Boyd, The
Applicability of International Law to the Occupied Territories ,)1971( 1 Isr. Y.B.
H.R. ;258 Dinstein, above note ;31 Feinberg, The West Bank’s Legal Status, New
Outlook 60 .voN-.tcO( .)1977 Following the establishment of the Likud Govern-
ment, the statements of Israel with regard to the Fourth Geneva Convention
apear to have moved from ambivalent to negative. During the 32nd session of
the UN General Assembly, Foreign Minister Dayan stated that view of
this illegal annexation of the West Bank [by Jordan], the Fourth Geneva Con-
vention is not applicable.” UN Doc. A/32/PV.27 at 8385 .)1977( This statement

was not qualified by any indication that the humanitarian provisions of the Con-
vention would continue to be applied. This statement notwithstanding, it appears
that the directives of the military government as to the administrative and the legal
system of the West Bank have not been changed. Indeed, in reply to a query, this
writer was informed by the Israel Ministry for Foreign Affairs that “although
the IVth Geneva Convention is not applicable, Israel continues to apply the
humanitarian provisions of the Convention.” Letter from Deputy Legal Adviser
R. Sabel .rpA( ,7 .)1978
33 Dinstein, above note ,31 at .511 For a critique of this test, see M. Drori, The
Legislation in the Area of Judea and Samaria )1975( 82 (in Hebrew).
 APPLICABILITY OF MULTILATERAL CONVENTIONS 227

lation.** But the test mentioned above can be useful only in the nega-
tive sense: If legislative changes introduced by an occupant, ostensibly
in order to benefit the local population, do not correspond to the law
in force in the occupant’s own territory, there may be an immediate

case for suspecting the occupant’s animus. One should, however, be

wary of carrying such a test, inconclusive as it is, beyond this point.
In practice the standard implicit in the test may be abused by an
occupant interested in a gradual extension of its laws to the occupied
territory under a strategy of creeping annexation. Except in cases of
occupation of a country where a system of racial, religious, or political
discrimination prevailed, an occupant has the duty to respect the
institutions of the occupied territory, especially when they reflect an
entightened regime. It may not introduce changes simply on the ground
that it is ”gnidargpu“ the local institutions to the level obtaining in
the occupant’s own country and that it is in the interest of the local

International labor conventions, as distinguished from the labor laws

of a particular country, are evidence of generally agreed labor stan-
dards and may therefore be regarded as being in the interests of the
population of an occupied territory. As a general proposition, the
application by an occupant of norms incorporated in international
labor conventions is a benevolent measure which serves the interests
of the local population. On the other hand, these positive considerations
should be weighed against the consideration that the ratification or
nonratification of such conventions prior to the commencement of the

34 See L. Oppenheim, International Law (7th ed.) Vol. Il, ;434 G. von Glahn, above
note ,27 ;97 Schwenk, Legislative Power of the Military Occupant under Article ,43
Hague Regulations, ,)1945( 54 Yale L. J. ,393 .40001
The “Pictet Commentary” on Article 51 of the Fourth Geneva Convention supports
the view that working conditions need not remain unchanged throughout the
period of occupation and that labor laws would probably be modified from time
to time, O. Uhler & H. Coursier, Commentary on the Geneva Conventions of ;1949
The Geneva Convention Relative to the Protection of Civilian Persons in Time
of War )1958( .298 See also M. Greenspan, The Modern Law of Land Warfare
)1959( .273
Regarding labor in occupied territories, see also U.S. Dept. of the Army, The
Law of Land Warfare, (FM ,)2710 paras. 41821 ;)1956( BMML .1545
35 See also Schwenk, above note ,34 at .403 As regards the continuation of social
security regulations in force in the occupied territory, except for the elimination
of vicious features or practices offending the principles of international law, see
M. Greespan, above note ,34 at .274
228 T. MERON

occupation was a sovereign prerogative of the previous government.

During the occupation, the local population usually has an interest
in the maintenance and preservation of local institutions and laws,

an interest which is protected by Article 43 of the Hague Regulations

and the relevant provisions of the Fourth Geneva Convention. More-

over, as indicated by Article 35 of the Constitution of ILO, it is not

axiomatic that every international labor convention is suitable for
local social and economic conditions. The question of the applicability
of international labor conventions to occupied territories is, therefore,

more complex than would appear at first sight. It may be suggested

that the following norms could appropriately regulate this question:
.1 If, prior to the commencement of the occupation of a territory,
the territorial sovereign had ratified an international labor convention
and adopted the necessary implementing legislation, the occupant must
respect the relevant labor standards as part of the local legislation in
force.
.2 When, prior to the commencement of the occupation of a terri-
tory, the territorial sovereign had ratified an international labor con-
vention but has not completed the necessary implementing legislation,
that ratification should be regarded as determining that the convention
is suitable for the local social and economic conditions. The occupant

may therefore implement the convention in the occupied territory and

may report to the ILO. In cases in which the occupant is also a party
to the international labor convention involved, the case for the appli-
cability of that convention to the occupied territory is particularly
strong and may, depending on the object, purpose, and content of
the convention, constitute a legal duty of the occupant.
.3 When the occupant but not the territorial sovereign has ratified

an international labor convention prior to the commencement of the

there is a presumption against the applicability of that
convention to the occupied territory, but account must be taken of
the positions taken by the latter government with regard to that con-
vention in the relevant international bodies The answer must, however,
be given in each case in light of the specific convention, the social and
economic conditions of the occupied territory, the needs of the popu-

more controversial question of the effect of the acts of the dispossessed

government during the occupation will not be considered. See in general A. McNair
& A. Watts, The Legal Effects of War )1966( .44546
 APPLICABILITY OF MULTILATERAL CONVENTIONS 229

lation, and the character of the changes in the local laws and insti-
tutions that would be required.
In light of the foregoing, certain conclusions about the position
taken by the 63rd International Labor Conference can now be ventured.
Although the 1974 resolution implied that Israel should have applied
Convention No. 87 (which Jordan had not ratified) and Convention
No. 111 to the territory, it was only the applicability of the latter
convention that was questioned in .1977 Articles 2 and 3 of the Con-
vention require that a broad policy against discrimination be followed
through a variety of measures, including possibly legislative ones.
In view of the fact that both Israel and Jordan were parties to this
Convention, it seems clear that Israel had at least the right, and ar-
guably even the duty, to apply the provisions of the Convention to
the West Bank, given its character as a source of general human rights.
The opposition to the application of the Convention by Israel and
to its exercise of reporting functions with regard to the application
of the Convention in the territory arose from the questionable assump-
tion that such an action would have implications for claims of sov-
ereignty over the West Bank, from the reluctance of the majority to
apply the regular ILO procedures in this case, and from the interest of
the countries criticized in the report to climb on the “occupied terri-
tories band-wagon” in order to defeat the report in foto.

C. THE CHICAGO CONVENTION ON INTERNATIONAL

CIVIL AVIATION

The airport of Jerusalem at Atarot (previously Kalandia) is situ-

ated north of the City of Jerusalem in an area which had been under
Jordanian jurisdiction prior to the Six Days’ War and to which Israel
applied, in the aftermath of that war, the totality of its laws, thus
treating it as part of its sovereign territory. Other states and the United
Nations consider that these measures are invalid and regard this area

as part of the occupied West Bank.

On June ,12 1967 the Civil Aviation Administration of Israel issued

a Notice to Airmen )MATON( advising that the Lod Flight Infor-

mation Region )RIF( was being extended to west of the Jordan River
and that approach control services to all aircraft approaching or de-
parting from Jerusalem airport would be provided by Lod Approach.
Subsequently, the Government of Israel approved that airport for
20 T. MERON

domestic and international flights,*” including charter While

maps circulated by and maps used for navigation purposes

by aircraft pilots® list Jerusalem airport as within the Lod (Ben
Gurion) FIR, ICAO’s Air Navigation Plan, Middle East and South
East Asia Regions (hereinafter ‘ICAO’s continues to show
the entire territory, including the Jerusalem airport, as within the
Amman The airport is used for domestic and international
nonscheduled flights, and approach control is provided by the Lod
FIR.
In ,1974 Iraq and Jordan complained to the ICAO Assembly of
the endeavors of Israel to establish air traffic services to Jerusalem
airport in disregard of ICAO’s Plan, which listed that airport under
Jordan, and in violation of Articles ,1 ,5 and 6 of the Chicago Con-
It was argued that only the authorities recognized in that
Plan had the right to retain control and sovereignty over the airport
and that the occupant should not be allowed to make use of it for
civil aviation purposes. Moreover, resolutions of the UN General
Assembly and of the Security Council, which declared that changes
carried out by Israel in the occupied territories in contravention of
the Fourth Geneva Convention were null and void and which called

upon states not to recognize such changes, should also be taken into
account.
Since Israel does not regard the airport as occupied territory but

as a part of its own sovereign territory, it did not answer the claim

37 )1967( 3 Yalkut Hapirsumim ,1832 No. ;1376 )1968( 2 Kovetz Hatakanot ,1277
No. .2211
38 Licensing of Aviation Services (Charter Flights Regulations) .)1976(
89 Maps of the Air Traffic Services System, Aeronautical Information Publication,
.)PIA(
Middle East High/Low Altitude Enroute Charts, ME )L/H( ,2 Jeppesen
& Co. .)1970(
41ICAO Doc. ,870010 Chart ATS 3 2213 and AGA 1 1136 .)1976(
should be observed that Iraq joined in the complaint, although in 1949 it had
invoked Article 89 of the Chicago Convention against Israel (as did Egypt).
Article 89 provides:
In case of war, the provisions of this Convention shall not affect the freedom
of action of any of the contracting States affected, whether as belligerents or

as neutrals. The same principle shall apply in the case of any contracting
State which declares a state of national emergency and notifies the fact to
the Council.
See also under Article ,89 ICAO, Repertory Guide to the Convention on Inter-
national Civil Aviation, Doc. ,8900 Part IV, Ch. XIX, at 12 .)1971(
 APPLICABILITY OF MULTILATERAL CONVENTIONS 231

that it was acting in violation of the Fourth Geneva Convention. It

argued that ICAO could not decide, even indirectly, on the territorial
rights of contracting states, that, in so far as Israel was concerned,
the Chicago Convention was applicable to Israel, not to Jordan, and
that the Convention made it clear that airports were operated by the
authorities who were in fact exercising control over them, the
Israeli, not the Jordanian authorities. Israel invoked the disclaimer
contained in the Foreword to ICAO’s Plan explaining that nothing in
the presentation of material in the Plan “implies endorsement or
acceptance by ICAO in matters affecting the status and boundaries of
States and
By a majority of 52 to ,3 with 38 abstentions (including the United
States), the ICAO Assembly adopted Resolution A21-7, which noted
that Jerusalem lies in occupied Arab territories, is registered as under
the jurisdiction of Jordan in the ICAO’s Plan, recalled Articles ,1 ,5
and 6 of the Chicago Convention, and resolved that in implementation
of those articles all contracting states should refrain from operating,

or giving permission to any airline to operate, any air service to or

from Jerusalem airport, unless prior permission is granted by Jordan.**
In ,1975 a number of Arab states complained to the Council of ICAO
that, in disregard of Resolution A21-7, flights were taking place to
and from the Jerusalem airport without the permission of the Jor-
danian Civil Aviation Authority. By 17 votes in favor, 1 against (the
United States), and 10 abstentions, the Council adopted a resolution
deeply deploring the disregard by Israel of Resolution A21-7 and
urging Israel.to abide by it.
In neither the Assembly nor in the Council has Israel, committed
to treating the airport as part of its sovereign territory, claimed any
rights of a belligerent occupant, thus, in the view of some observers,
facilitating the adoption of the above resolutions. Given the political
character of the Council and the Assembly, a claim of belligerent
rights is unlikely to have affected the outcome, but it may have influ-
enced individual votes. And although on several occasions in the past
certain Arab states had suspended the privileges of Israel and of third
states under the Chicago Convention by invoking Article ,89 neither

43 See ICAO Doc. 870010 at D-6E.

the debates, see ICAO, 21st Sess., Minutes of the Plenary Meetings, Doc.
,9119 A21-Min. P/1-12, at .15465 The resolution is in Doc, ,9118 A21-RES.
at .3839
222 T. MERON

Israel nor the Arab states specifically invoked that article in the
proceedings before the Assembly and the Council.*
The question under consideration involves two bodies of the law
—the law of civil aviation and the law of belligerent occupation.
Article 1 of the Chicago Convention, which provides that every
state has complete and exclusive sovereignty over the airspace over
its territory, is declaratory of a rule of customary international law.*
The principal difficulty lies in the interpretation of the related Article
2 of the Convention, which defines territory in somewhat archaic
terms: Territory “shall be deemed to be” certain areas “under the
sovereignty, suzerainty, protection or mandate” of a state. The literal
reading of these words would suggest that the enumeration is exhaus-
tive. The definition does not mention (which is under-
standable in view of the fact that the Chicago Conference took place
before the San Francisco Conference), areas under belligerent occu-
pation, and possibly some other situations as Moreover, a
conflict could have arisen between State A as a protectorate of State
B, but sovereign power over its territory, and the protector State B

as to their respective status under the Chicago Convention.*® It has

been said that the definition ”sedulcni“ territories for the international

45See above note .42 The debates of the Council were closed to the public. Doc.
,91581028 C-Min. 86 )18( .)desolc( The resolution of the Council is in Doc.
,91631029 at .4142
India argued before the International Court of Justice that Article 89 was
declaratory of customary international law. Appeal relating to the Jurisdiction
of the ICAO Council [1972] ICJ Rep. ,46 at ,69 109 and Pleadings at ,15859
,57173 .635 See also Little, Commentary on the Development of the Individual
Articles of the Convention on International Civil Aviation, Article ,89 2 Pro-
ceedings of the International Civil Aviation Conference, Chicago, Illinois, Nov.
.ceD-1 ,7 ,1944 at ,1395 Dept. of State Publication No. 2820 )1949( [hereinafter
cited as Proc.].
For a view fhat the right of belligerency under customary law prevails over
the rights granted by a belligerent to a neutral state under Article 5 of the
Chicago Convention, see 1 Shawcross & Beaumont on Air Law 207 (3d ed. .)1966
46 See H. Wassenbergh, Post-War International Civil Aviation Policy and the Law
of the Air (2d rev. ed. )1962 ;100 Goedhuis, Questions of Public International
Air Law, ,)II-1952( 81 Rec. des Cours ,201 .20911
.H47 Wassenbergh, above note ,46 at .70
48 Regarding leased areas, see Shawcross & Beaumont, above note ,45 at 193 n. ;3
B. Cheng, The Law of International Air Transport ,)1962( .29495
42 On protectorates in international law, see 1 L. Oppenheim, International Law
(8th ed.) Vol. I, ,192 ,290 .561 Traffic rights with respect to protectorates have been
granted by the protecting powers. See B. Cheng, above note ,48 at .294
 APPLICABILITY OF MULTILATERAL CONVENTIONS 233

relations of which a contracting state is responsible, but this is helpful

only to the extent of suggesting that the definition is not
The alternative would be to interpret Article 2 as not exhaustive
and as intended to embrace situations in which a state has effective
control and possession over a territory, such as or bel-
ligerent occupation, situations which are not mentioned in Article .2
Such a broad interpretation would commend itself for several reasons.
First, it would be in accordance with the object and purpose of the
Convention—the establishment of safe international civil aviation—
since only the authority actually in possession and control of a terri-
tory rather than dispossessed government (in the case of belligerent
occupation) can ensure the safety of aviation over that territory.*?

Shawcross & Beaumont, above note ,45 at .193 The authors agree that trusteeship
territories and territories for whose international relations a contracting state is
responsible ”ylbmuserp“ come within the scope of Article 2 but express the
view that only territories over which the sovereignty of a state has been recognized

come within the meaning of Article 2 and that Ethiopia once conquered would
not be considered Italian territory (except by Germany, which “recognized the
conquest”). Jd., and n. .2 See also B. Cheng, above note ,48 at .109
at .106
While the travaux preparatoires of the Chicago Convention do not lead to a
clear conclusion regarding the interpretation of Article ,2 they are consistent with
the view that the definition of territory is not comprehensive and that it embraces
situations of ”.noitcidsiruj“ Article 3 of the U.S. proposal 1( Proc., above note ,45
at )556 provided that the Convention shall be applicable to all territory over
which each contracting state “exercises sovereignty or jurisdiction.” See also Art.
,)110 id. While Article 3 was deleted from the text of the Convention, it appears
that this was done because “[iJt was agreed that if the definition of ’yrotirret‘ were
reformulated, Article 3 could be omitted” .di( at )680 and because it was -er“
dundant” .di( at .)691 See also id. ,651 671 and the Commentary, above note
,45 at .1381
52 See the Preamble to the Convention and Article ,)a(44 ,)d( and .)h( ICAO’s
Plans are prepared in implementation of Annex 11 to the Convention, which
provides that the contracting states shall determine in accordance with the pro-
visions of the Annex and for the territories over which they have ”noitcidsiruj“
where air traffic services will be provided ,211§§( .)212
Despite occasional difficulties, especially with regard to the establishment of
FIR boundaries over areas of high seas where disputes have arisen over delineation
of areas of economic jurisdiction (see working paper by IATA presented to the
22nd ICAO Assembly in ,1977 ICAO Doc. A22-WP/40, TE/3 ,)1977( the practice
of ICAO supports the proposition that agreements pertaining to delineation of
FIR boundaries and their approval by the ICAO do not imply recognition of
sovereignty over an area and are concerned simply with flight safety. See Appendix
N, Art. 12 of the Chicago Convention (Resolution A21-21), in ICAO, Repertory
Guide to the Convention on International Civil Aviation, Doc ,89002. Part I,
 24 T. MERON

Otherwise, the effectiveness of the Convention would be endangered.

Secondly, such a broad reading would avoid a conflict with the cus-
tomary international law governing belligerent occupation® and would
accord with past practice on civil aviation in occupied territories, such

as Germany and as well as Okinawa,** where international

civil aviation was controlled and regulated by the occupants. The
persuasive effect of these precedents is, however, limited because each
reflected special circumstances.
While a literal reading of Article 2 would lead to unreasonable
results, a broader reading would serve the object and purpose of
the Convention and take into account the law of belligerent rights,
applicable in the relations between Israel and Jordan, as indicated by
Article ,31 paragraph )c(3 of the Vienna Convention on the Law of

Ch. I (2d ed. .)1977 See also Report of the Technical Commission, Doc. A22-
WP/141, P/43 ,)1977( approved by the ICAO Assembly on October ,3 ,1977
which states that the boundaries of airspaces subject to Air Traffic Services, which
include FIRs, shall be established on the basis of technical and operational con-
siderations.
53 BMML .147 Regarding the right of the belligerent occupant to regulate the oper-
ation of all means of transport in occupied territories, see U.S. Dept. of the
Army, The Law of Land Warfare (FN ,)2710 para. .378
54 See id. at .297303 Arts. 1 and 5 of Chapter 12 (Civil Aviation) of the Con-
vention on the Settlement of Matters arising out of the War and the Occupation,
concluded on May ,26 1952 between the United Kingdom, France, the United States,
and the Federal Republic of Germany. 332 UNTS 220 at .310
As regards civil aviation, it has been observed that international practice supports
the proposition that a belligerent occupant may not only prohibit air traffic over
occupied territory, but may also regulate civil air nagivation. E. Castrén, The
Present Law of War and Neutrality )1954( .59697 See also B. Cheng, above
note ,48 at .386 Cheng observes also that, during the period when the former
colonies of Italy in Africa were under British military occupation after the Second
World War, traffic rights with respect to them were granted by the British Gov-
ernment. Id. at .295
55 See Treaty of Peace with Japan signed Sept. ,8 ,1951 3 UST ,3169 TIAS No. ,2490
136 UNTS ,46 46 AJIL Supp. 71 ,)1952( Art. ;3 Civil Air Transport Agrement
between the United States and Japan signed Aug. ,11 ,1952 4 UST ,1948 TIAS
No. ,2854 212 UNTS ,27 Art. 2 and Schedule; Agreement for Air Services between
the United Kingdom and Japan signed Dec. ,29 ,1952 175 UNTS ,130 Schedule
and Exchanges of Notes; Exchanges of Notes between the United States and Japan
amending the Civil Air Transport Agreement of Aug. ,11 ,1952 23 UTS ,677
TIAS No. ,7333 835 UNTS ;212 Agreement between the United States and Japan
concerning the Ryukyu Islands and the Daito Islands, signed June ,17 ,1971 23
UST ,446 TIAS No. .7314 See also B. Cheng, above note ,48 at .29697
56 Above note .8
 APPLICABILITY OF MULTILATERAL CONVENTIONS 235

Two further reasons may be adduced in support of the above inter-

pretation of Article .2 In the first place, Article 89 of the Chicago
Convention provides an important contextual link with the law of
belligerent rights. That very broad war clause of the Convention
reserved the freedom of action of the contracting states affected by

war (or emergency conditions) whether as belligerents or as neutrals,

and, one might add, as occupying It is conceivable that
because of Article 89 a specific reference to belligerent occupation in
the text of the Convention was not considered necessary.
Secondly, a further link with the law of belligerent rights and specifi-
cally with the law of belligerent occupation is created by the Inter-
national Air Services Transit Agreement, a companion agreement to
the Chicago Convention, adopted by the same Chicago Conference
and signed on the same day. Under Article 1 of this Agreement, to
which both Israel and Jordan are parties, the exercise of the two
freedoms in areas of active hostilities or of military occupation and,
in time of war, along the supply routes leading to such areas, shall
be subject to the approval of the competent military Ob-
viously, in areas under military occupation it is the occupant who is
the competent authority, and it can suspend the exercise of the two
freedoms even when the territorial sovereign opposes such a suspension.
Although Article 1 is worded in terms of power to suspend only, it

57 Regarding the broad character of Article ,89 see Jennings, International Civil
Aviation and the Law, 22 BYIL ,)1945( ,191 at ,203 n. ;3 see also above note .45
58 Signed Dec. ,7 ,1944 59 Stat. ,1963 EAS No. ,487 3 Bevans ,916 84 UNTS .389

Jennings observed that this Agreement does not contain a peacetime clause and

may continue to operate, within certain limits, even during war. Above note ,57
at .203 The Agreement itself .trA( ,1 sec. )2 makes it clear that the exercise of
the two freedoms was to be in accordance with the provisions of the Chicago
Convention, thus strengthening the case for taking this agreement into account
for the interpretation of the Chicago Convention. See Art. ,31 para. 2 of the
Vienna Convention of the Law of Treaties, above note ;8 T. Buergenthal, Law-
Making in the International Civil Aviation Organization )1969( .154
Wording similar to that of Article 1 of the International Air Services Transit
Agreement was included by the Chicago Conference in the draft standard form
agreement for provisional air routes. See 2 Proc., above note ,45 at ,1289 .1294
Lord Swinton, Chairman of the United Kingdom delegation, declared in a policy
statement that “even after the fighting is over, there will be a considerable period
during which the allied military authorities will remain in charge... Over a large
part of the world ...-any arrangements which are made during the interim period
will have to be made in close consultation with the allied military authorities.”
1 Proc., above note ,45 at .66
 236 T. MERON

would make sense to interpret this provision in the context of bel-

ligerent rights, which include not only the power to prohibit, but also
the powers to grant and to regulate.®® Especially in the case of large
occupied areas—this is obviously not true of the West Bank—the
regulation of civil aviation by the occupant may be of considerable
importance for the good of the population.®
It may thus be concluded that the applicability of the Chicago
Convention to occupied territories should be controlled by the occu-
pant, rather than by the dispossessed government, and that the dichot-
omy between the real world of control of civil aviation by the de
facto authorities and the ICAO-supported illusory control by the
dispossessed government is dangerous for the safety of civil aviation.
Neither is it justified in terms of international law.

D. CONCLUSIONS

There is no a priori reason why multilateral conventions to which

occupying powers are parties should not be applicable to occupied
territories, but whether a particular convention applies or not must
be decided in concreto. The above decisions of the ILO and of the
ICAO make bad law and little sense. This, alas, happens only too
often when the supervision of important multilateral conventions is
entrusted to international organizations which act on the basis of
political considerations.

59 Above note ,53

60 Above note .34
 CHAPTER VII

LOCAL GOVERNMENT IN JUDEA AND SAMARIA

Moshe Drori *

A. INTRODUCTION

One of the principal functions of military government in occupied

territory is to restore civil life to its normal course. That is not only

a political objective with obvious advantages, it is also entrenched

in the principles of international law and the law of warfare,’ which
impose on military government the duty to restore public order and
essential services and by so-doing to carry out the civil functions of
government for the welfare of the population in the occupied area.’
In the intricate structure required to supply services to the popu-
lation, the local authorities—municipal corporations, local councils,
and chambers of commerce—play a substantial role. These bodies
regard themselves as being closer to the population and thus under

a moral duty—and sometimes, in the small villages, familial obligation

as well—to take care of them and provide regular services. Amongst
the inhabitants themselves, there exists a receptiveness to aid and
support from the local authorities. During periods of war and crisis,
people tend increasingly to shut themselves within their immediate
surroundings, to seek aid and encouragement from and become more
dependent on familiar, local bodies. Since in the majority of cases,
the former central authority has collapsed on defeat, people are left

* LL.B., LL.M., Member of the Israel Bar; Instructor, Institute for Research in
Jewish Law, Faculty of Law, Hebrew University of Jerusalem, Israel.
Hague Regulations, Reg. .43
2 See M. Greenspan, ,)1959( p. .212 notes 12 ff; M. “The Observance
of International Law in the Administered Territories”, )1971( I Js.Y.H.R. ,262
266 ff; G. von Glahn, ,)1957( p. .34 Regarding the application of this policy
in the Israeli Administered Areas, see S. Gazit, “Policy in the Administered
Territories” )1971( I Is.Y.H.R., pp. .278282
237
 288 M. DRORI

without immediate administrative support and the local bodies alone

remain as the governing element. Moreover, national bodies, parliament
and Government, are of a political-nationalistic character, often hostile
towards the occupying military authorities, and consequently it is in
the latter’s interest to restrict their activities. Municipal bodies, on
the other hand, are concerned with providing services to the popu-
lation, which generally involves no political undertones. The Military
Government is therefore inclined to favour local initiative and enlists
local assistance in restoring normal
Of all the various political bodies before occupation, the municipal
bodies alone are in general permitted to function and their influence has
extended beyond local limits. The mayors often become leaders in the
occupied zone. Thus, the municipal corporations, along with chambers
of commerce, come to wield political power much greater than they do
normally.
In a democratic society, these local bodies are elected for a fixed term.
Under military government continuing over a lengthy period of time,
the problem of holding elections for these bodies will naturally arise.
From a legal point of view, the following questions are of interest:

)1( Under international law, is it permitted, or is it obligatory, to

hold elections in occupied territory?

)2( Is military government permitted to amend, revoke or add to any

provisions in the election laws?

Before examining these questions, something must be said of the effect

of occupation on the law in occupied territory.*
The law which applied on the eve of the occupation remains in
force—subject to changes necessitated by the circumstances of oc-
cupation—unless and until amended by the military authority.5 The

3 B.M.M.L. Part III, the Law of War and Land, Sections 517 .p( )144 and
579 .p( .)161
.M4 Drori, Legislation in the Area of Judea and Samaria, ,)1975( pp. 32 ff. and
117 +
5 506 Reg. 45 of the Hague Regulation and Article 64 of the Geneva Con-
vention and the interpretation given to that article, Commentary, ,)1958(

pp. ;334337 Von Glahn, op. cit., pp. 94 ff. This principle too is set down in
the Proclamation concerning Administration and Law, ,1967 issued by the I.D.F,
Commander in the Occupied Areas, section ,2 Coll. P. & O. .J( & S.) I. p. .3 For
further detail, see Drori, cit., pp. ,112114 ,214 and cf. Von Glahn, op. cit.,

pp. .4044
 LOCAL GOVERNMENT 239

latter’s power of amendment is not unlimited. Under international law,

the power may only be exercised when necessary for the purposes of
war and efficient rule, and for ensuring public order and the well-being
of the population.® All legislative, executive and administrative powers
of the previous ruling body are transferred to the Military Commander.”
The above refers mainly to the central government. The military
authority may well consent to allow the local bodies to carry out their
regular functions.®

B. MUNICIPAL ELECTION LAW IN OCCUPIED AREAS

Election law, as part of the body of legislation in force on the eve

of occupation, remains in force so long as it is not amended, suspended

or revoked by the military authority. Thus, if municipal elections fall

due, they must be held.? Should the military government be unwilling to
hold elections and to this end amends the law, such amendment must
satisfy the criteria specified above. One may assume that municipal elec-
tions during the first stages of occupation are not very desirable; they

may interfere with public order and regular government. In that event,
their suspension is reasonably consistent with the principles of in-
ternational law. Where, however, occupation is prolonged and security
well-maintained, it would be unjustified to continue the suspension and
deprive the local population of their civil right to elect their repre-
sentatives democratically. Once again, an essentially political decision
to hold elections is quite in accordance with the principles of interna-
tional law.
There is room for a further distinction. Where local government elec-
tions may give rise to public unrest due to propaganda, demonstrations

6 B.M.M.L., section 523 .p( ;)145 Y.Z. Blum, The Missing Reversioner: Reflections
on the Status of Judea and Samaria )1968( 3 Js.L.R., pp. ,275 ;ff295 and see
also Almakadssa v. Minister of Defence )1976( 26 P.D. )1( .574
7 Von Glahn, op. cit., pp. 94 ff. See section 3 of the Proclamation Concerning
Administration and Law, ubi supra. Identical Orders were issued on other areas
occupied by the I.D.F. in the Six Days’ War: see Drori, op. cit., pp. ,33 ,114 ,214
and cf. Von Glahn, op. cit., pp. ,4044 who cites Declarations and Proclamations
of military commanders in occupied areas during World War II.
8 sections ,516 517 .p( ,)144 579 .p( .)161
9 Municipal elections were held in the Rhineland (then an occupied area) in
August, :1919 see S. Frankel, Military Occupation and the Rule of Law; Occu-
pation Government in the Rhineland, 19181923 ,)1944( pp. .3536
 200 M. DRORI

and the like, then Postponement, even very prolonged, would be rea-
sonable. On the other hand, if there are relatively few eligible electors

tolerated only exceptionally.

An additional element to be considered in the legal context is the
local population’s stance with regard to these elections. If they strongly

C. CHANGES AND AMENDMENTS OF MUNICIPAL

ELECTION LAW

When a military government implements the local law regarding

elections, it should do so without introducing changes therein, unless
efficient government and the welfare of the population require an amend-
ment of the law.

lawful, since it jis intended for the Welfare of the On

the other hand, Cohn J. will declare it as nul] and void, since
his view is that the Power vested in the Commander under Article
43 “is not meant for changing the world into the Kingdom of
God nor for instituting an ideal order and form of public life in

10 Almakadssa Vv. Minister of Defence and Others, ubj supra, ,574 .5812
11 Regarding changes in election laws Which widened the franchise of the whole
population by repealing limitations on the right to vote according to economic
Capacity, cf. Frankel, Op. cit.
 LOCAL GOVERNMENT 241

the territories, not even such as appears to him better and more
equitable. The power is intended only for restoring such order and
public life existing prior to occupation and for ensuring their continued
existence.”!? A third approach, advocated by would de-
termine the validity of the change by the following criterion: does the
occupying government enforce a similar law in its own State? If so,
the change is valid; if not, it may be assumed that it was not intended
to promote the welfare of the population and is therefore invalid.
Presumably, legislative changes that are so drastic as to change the
character of the body to be elected are inconsistent with the obligation
of the military government to preserve the status quo in the occupied

area as a ”,eetsurt“ without significant institutional changes, until the

previous ruler is If, however, the election law of the State,
part of whose territory has been occupied, is amended, the occupying
State would be entitled to make similar amendments in the occupied
territory.
All are agreed that, from the point of view of international
law, the military government is under no obligation to amend the elec-
tion law in order to improve it or make it more democratic: non-
interference in the existing legal system is consistent with the principles
of international law.'®

12 See Cohn J.’s decision in Almakadsa, ubi supra., .588 One must remember that
Cohn J. was in the minority and that in subsequent decisions, when that case
was cited, the reference was to the majority opinion. The idea that the military
government is not bound to improve the existing economic-social welfare situation
and may leave things as they were on the eve of the occupation is analogous
to the fact that a military government is not bound to improve the law in
general and election law in particular: sce J. Stone, “Behind the Cease-Fire:
Israel’s Administration in Gaza and in the West Bank”, in The Arab-Israeli
Conflict, ed. J.N. Moore, Vol. II, ,)1974( pp. 401 .8
13 Y. Dinstein, “The Legislating Power in Occupied Areas” )1972( 2 Iyunei Mishpat
.505 See the comments on this approach in Drori; op. cit., pp. .8182 There are

common factors in Dinstein’s approach and the reasoning underlying Cohn J.’s
decision.
14 See also Article 47 of the Geneva Convention and comment by Pictet, Com-
mentary, op. cit., pp. .27376 An example of forbidden institutional changes is
the partition of Belgium by Germany in World War I, into two separate areas,
Flemish and Wallonian. See Almakadsa and Drori, op. cit., pp. .8081
15 Until now, we have discussed legislative changes intended to democratize the
election laws, for example, by abolishing the property franchise or giving women
the vote. An order that restricts the number of eligible voters, would apparently
violate the rules of international law.
242 M. DRORI

The legal aspect of elections to local bodies may be summarised thus.

These bodies usually continue their activities after occupation. The
military government may by legislation direct that municipal election
law be suspended or implemented where the welfare of the population,
public order and good government require it. If elections are held,
the military government is not bound to make them any more demo-
cratic than they are under existing law. In fact, some doubt exists as
to whether amendment of municipal election law to this effect is valid
under international law, though majority opinion tends to approve
such legislation.
The foregoing may be applied without great difficulty to Judea and
Samaria. The local authorities, and principally the municipal corpora-
tions, resumed their activities immediately upon the termination of the
Six Days’ War. The Region now has 25 municipal corporations in
whose hands political-social power is largely concentrated and which
conduct most of the commercial activity (excluding agriculture) there.
In a survey of Israeli administration in Judea and Samaria the continued
activity of the municipal corporations according to Jordanian law and
their organization of the local residents has been noted as indicative of
The relevant Jordanian law has remained in force,
and the municipal corporations, municipal councils and other local
bodies have continued to function according to the patterns set during
the period of Jordanian rule. Hence Jordanian law, as the law in force,
must be examined in order to allow us to describe the sturcture of
local government in Judea and Samaria.

D. THE STRUCTURE OF LOCAL GOVERNMENT UNDER

JORDANIAN LAW

The most important body in municipal government is the municipal

corporation. The legal basis for its activities is the Jordanian Munici-
palities Law, No. 29 of 195517 This Law regulates election procedure,

16 A. Cohen, “The Arab Population in the Israel-Administered West Bank” in The

Arabs and Palestine, ,)1973( pp. ,40 and 44 ff: see in particular, p. ,45 for
the political implications.
17 Jordanian Official Gazette, No. 1225 of 1 May .1955 During the Mandate the
Mandatory Municipal Corporations Ordinance, ,1934 was in force: Mandatory
Official Gazette No. ,414 of 12 January .1934 Suppl. ,1 p. .1 In ,1954 Jordan
enacted a Municipalities Law for both Banks: Jordanian Official Gazette, No.
 LOCAL GOVERNMENT 243

determines corporation powers and duties and the division of functions

between members of municipal councils and mayors, provides for the
administration of municipal finances and so on.
The rural councils rank second in hierarchy. Similar in principle to
the Israeli local councils, they were established under a Proclamation
of the Minister of the Interior in accordance with the provisions of
the Villages Administration Law, No. 5 of 19548 A local council
enjoys less independence than a municipal corporation: it is to a signifi-
cant extent dependent on the Disrtict Commissioner In
addition to powers to establish schools, markets and abattoirs, to
build roads etc., the rural council is authorized to arbitrate conflicts
amongst There are now 85 rural councils in Judea and
Samaria. (In the Jordanian period, there were ;96 almost half of them
stopped functioning in ,1967 but most were subsequently reactivated;
four were set up by the Military Government.)
A central figure in local affairs is the mukhtar who operates both
in the villages?! and in the municipalities.2? The mukhtar is involved
primarily with internal security: his role is to act as the ”godhctaw“
of the central authority and to report to the police about “every crimi-
nal or immoral or suspicious person in the village, and about any
intention of which he is aware to commit crime.”?? He also passes on
directives from the central authority and authenticates under seal docu-
ments sent by residents of his village or area to the central authority.
By the very nature of his task, the mukhtar is a member of the rural
council.2* There are now 826 in the Region, receiving remun-
eration according to Jordanian law—however nominal the sum**—from
the central authority which today is the Military Government.

,1183 of 6 June .1954 This law was repealed and replaced by the Law of :1955
see section 64 .)1(
18 Jordanian Official Gazette, No. ,1169 of 1 February .1954
19 See the headnote to section 10 of the Villages Administration Law: “the rural
council must act in accordance with the directions of the District Commissioner”’.
20 Ibid. Chap. 3 (sections .)1821
21 Ibid. Chap. 4 (sections .)2230
22 See the Law of Mukhtars within the Boundaries of Municipalities and Municipal
Councils, No. 32 of :1958 Jordanian Official Gazette, No. 1410 of 1 January .1959
23 Section 26 ,)1( the Villages Administration Law. See the parallel section 8 )1(
of the Mukhtars Law.
24 Section 5 )1( ,)a( the Villages Administration Law.
25 See section ,30 the Villages Administration Law and section ,12 the Mukhtars
24 ‫א‬. 1

Another office which existed in the Jordanian administration was

that of the District Commissioner—Mutzraf—who served as a link
between the central and the local governments. His powers were wide,
and local branches of government departments came under his author-
ity rather than under that of the central government.* This office no
longer exists in Judea and Samaria; its powers were transferred to the
central authorities.

E. THE EFFECT OF ISRAELI MILITARY GOVERNMENT ON

THE STRUCTURE OF LOCAL GOVERNMENT IN THE AREA

When occupation is prolonged, concentration of all the powers of

government, legislation and administration in the hands of the Regional
Commander is not efficient. Accordingly the powers of the Jordanian
Government, of the Jordanian Minister for the Interior and of the
District Commissioners were transferred to officers each responsible for

a particular aspect of local affairs. The most important is the Internal

Affairs Officer in the Regional Command.?’ Jordanian law was duly
adapted to the establishment of Military Government but without
changing the essential administrative structure of local

except for the abolition of the office of mutzraf.

Law. The main source of the Mukhtars’ income are the fees they are entitled to
collect for certifying and sealing documents: Regulations on Mukhtars’ Salaries
and Fees in Towns and Villages, No. 62 of .1964
26 Administrative Structure Regulations, No. 1 of :1966 Jordanian Official Gazette
No. 1894 of 1 January ,1966 and also D. Farchi, “The Administrative Division
of the Area of Judea and Samaria”, in Judea and Samaria: Studies in Settlement
Geography ed. A. Shmueli, D. Grosman, R. Ze’evi ,)1977( pp. 7580 (in Hebrew).
(Reprinted in: R. Israeli ,).de( Ten Years of Israel Rule in Judea ,melasureJ(
,)1980 pp. 182191 (in Hebrew).
27 Order Concerning the Villages Administration Law, No. 5 of 1954 (Judea and
Samaria) .oN( )191 :1967 Coll. P. & O., .J( & S.), p. ;381 Order Concerning
the Municipalities Law No. 29 of 1955 .oN( )194 (Judea and Samaria), ;1967 ibid.,

p. ;384 Order Concerning Appointments Under the Mukhtars Law (Judea

and Samaria) .oN( )237 :1968 Coll. P. & O., .J( & S.), p. .483
23 The amendments to the Municipalities Law will be discussed later. Most of
them were technical, regarding taxation, budget etc. One of the most important

was that empowering the municipalities to enact bye laws regulating the
weekly day of rest. Drori, op. cit., pp. 198199 and infra text to notes .4648
Regarding the methods of appointing and dismissing Mukhtars, amendments

were made by the Regional Commander under the Order Concerning Appoint-
ments under the Mukhtars Law (Judea and Samaria) )tnemdnemA( .oN(
,)365 :1969 Coll. P. & O. .J( & S.), p. ;773 Order Concerning the Villages
 LOCAL GOVERNMENT 245

Since they constitute the dominant body, discussion here will centre

on the municipal corporations and primarily on the relationship be-

tween them and the central authorities. We will examine first the
limits of the powers of the municipal corporations and then the
means—especially the legal means—by which the central authorities
control the municipal corporations and, in certain cases, even assume
their powers.

F. THE POWERS OF MUNICIPAL CORPORATIONS

The law that established the municipal corporations was intended

to distinguish between the powers of the central government and
those of the municipal corporations. Similar to the situation in Israel,
section 41A of the Jordanian Municipalities Law, No. 29 of 1955 gives
the municipal corporations powers in matters that are clearly municipal:
planning and building, business licensing, fire brigades, health and
sanitation etc. Both as matters important in themselves and as criteria
for examining the division of power, the following subjects, it is sug-
gested, should be considered:
Water: Section 41A of the Municipalities Law empowers the cor-
poration to deal with the supply and distribution of water and the
collection of water rates. The boundaries of urban areas are not
always or necessarily geographically identical to those of the sources
of water, and this situation forces the municipalities to cooperate.
Under the Drinking Water for the Jerusalem District Law, No. 9
of °”,1966 only part of which had come into force before the Six Days’
War, the supply of water to the area of Ramallah was provided for by

means of a corporation called the “Water Service for the Area of

Jerusalem”’.*° Supply to Bethlehem, Beit J’allah and Beit Sachor posed

a serious problem and gave rise to many conflicts. The problem was
not solved during the period of Jordanian rule and the Israeli govern-
ment had to find a solution. The Regional Commander established
a Water Authority for these similar in principle to the Asso-

Administration Law, No. 5 of 1954 )tnemdnemA( (Judea and Samaria) .oN(

)366 :1969 ibid., p. .774
29 Jordanian Official Gazette, No. ,1904 of 1 March .1966
30 The composition of the executive is determined in the Regulations for the
Administrative Council of the Water Authority for the Jerusalem District,
No. 24 of .1966
31 Order Concerning the Water Authority ,mehelhteB( Beth Jallah and Beth
246 M. DRORI

ciation of Municipalities in Israeli legislation. Matters concerning water

were excluded from the particular powers of each town and transferred
to the Water Authority. An attempt was made to preserve the system
of checks and balances within these three towns. The proportion of
investment in and payment by each town to the Water Authority was
determined initially; the same proportion governs the distribution of the
profits of the Authority and of its property in the event of a winding-
up.*? Representation on the Water Authority is also roughly propor-
tionate to the investment made by each municipality,** but resolutions

are adopted by majority vote, so that at least two municipalities must

support a resolution in order for it to take effect and no one munici-
pality can structurally dominate the council.** The positions of chairman
and deputy chairmen of the council rotate.** The central government
—represented by the Internal Affairs Officer—exercises control over
the Water Authority. He must approve its decisions on expenditure,
the fixing rates and contributions to the building of water-works and

any changes in capital He may assume the powers of the Water

Authority when the latter is not fulfilling its functions satisfactorily.
Similarly, he may arbitrate between members of the council when
differences Furthermore, a decision to dissolve the Water Auth-
ority (which must be passed unanimously by the council**) must be
approved by him.*? All this may serve as an example of how the
Military Government, by determining the relationship between the
central and municipal government (the latter in this case being embodied
in the independent legal personality of the Water Authority), has

Sachor) (Judea and Samaria) .oN( )484 :1972 Coll. P. & O. .J( & S.), pp.
.11681184 This Order was amended in :1977 Coll. P. & O. .J( & S.), p. .1210
32 Bethlehem — ,%50 Beth Jallah — ,%30 and Beth Sachor — :%20 see sections
,25 26 and 27 of above mentioned Order.
33 Section 9 )a( of the Order, and the Appendix. The ratio is .532
34 section 11 .)a(
35 Ibid., sections 17 and .18
36 section ,41 and the 1977 amendment (see supra, note .)31
37 sections 40 and 41 .)a(
38 Ibid., sections 11 ,)b( 27 )a( and 44 )a( .)5(
39 Two other provisions of the Order are noteworthy: )1( section 42 of the
Order allows the representative of the central government—the Staff Officer
for Matters of Water in the Regional Command—to supervise water quality;
)2( the Order obliges the Water Authority to supply water to all consumers
in the area in which it operates—withholding of supplies due to a shortage
is permitted only upon consent from the authorized body. Cf. section 96 of
the Israeli Water Law, .1959
 LOCAL GOVERNMENT 247

resolved disputes amongst the towns of Judea regarding the supply

of water. The arrangement also gives some indication of the tendency
of the Military Government to enable the municipalities to resolve
local problems on their own, and in so doing to confer powers on the
municipalities which they did not have on the eve of the occupation,
thus enhancing their standing.
Electricity: In Israel, a central body holding a nation-wide concession
is responsible for electricity supply. Section )414 of the Jordanian
Municipalities Law on the other hand empowers the municipal corpor-
ations to regulate the supply of electricity (and gas) to local residents
and to set tariffs and other fees for this purpose. Under Jordanian
rule most electricity was in fact supplied to the towns and main villages
by those municipal bodies which operated electric power stations. In
the mid-sixties, the Jordanian Electricity Authority Law® established
three responsible bodies—one on the East Bank and two in Judea and
Samaria, the Electricity Company of the Jerusalem Area, responsible
for Judea, and the Electricity Company for the Nablus Area, respon-
sible for Samaria. The Law, however, only provided a basic framework,
and it was never implemented. Today, only the Jerusalem Electricity
Company supplies electricity to Jerusalem, Bethlehem, Ramallah and
Jericho by virtue of a concession acquired during the British Mandate.*
In the other towns, the municipal corporations remain responsible. Some
of them have generators for local production and some buy electricity
in bulk from the Israeli Electric Company under contract. In supplying
electricity, the municipal corporations achieve a status beyond the

narrow municipal sphere. With the economic and industrial develop-

ment of the Region since the Six Days’ War, they have become a
significant element in economic life, which in turn serves to increase
their power. It must be stressed that the Military Government hardly

40 No. 21 of ,1967 Jordanian Official Gazette, No. 1995 of 1 April .1967

41 A detailed legal discussion regarding the concession of the Electricity Company
for the Jerusalem District to supply electricity to the Hebron area is contained
in Electricity Company for the Jerusalem District v. Minister of Defence and
others ,)1973( 27 P.D. ,)1( .124 The Supreme Court held that the Jordanian
Electricity Law of 1967 did not grant a concession to the Company to supply
electricity to the Hebron area but only authorized the Council of Ministers
to extend the area of the concession to include the Hebron Area. This had not,
however, been done until the Six Days War. Regarding this decision as an
important precedent on the question of judicial review by the High Court of
Justice of legislation in the Area, see Drori, op. cit., pp. .8386
 248 M. DRORI

interferes as a matter of deliberate policy and indeed encourages the

tendency to raise the status and prestige of the municipal corporations.
Public Markets and Abattoirs: The municipal corporations’ power
to set up public markets and prohibit trading outside their boundaries
(section )416 of the Law), to control the slaughter of animals and
to build abattoirs (section )4119 is quite important. Although the
maximum rates which the municipality is entitled to collect must be
approved by the central government, the fact that the municipality is
responsible for running the public markets and the abattoirs makes it

a magnet attracting the agricultural periphery of the town. Since ,1967

industry and commerce have developed at an accelerating pace, but
agriculture still plays a central role. The villages are in need of an urban
centre where they can sell their produce and buy commodities. The
slaughter-houses respond mainly to the first need, and the public mar-
kets respond to both. For this reason the municipal mayors have
become not only leaders of their respective urban centres but of all the
villages in the vicinity.
Education: Article 20 of the Jordanian Constitution*? provides for
compulsory and free primary education in government schools.* The
municipal corporation (by virtue of section )4117 of the Munici-
palities Law) is authorized to build schools but in fact responsibility
for the buildings utilized for this purpose lies with the Urban Education
Tax Commission,** an independent legal entity in which the local mayor

serves as chairman and the members of which include local council

representatives as well as the Head of the District Education Office,
who is a local resident but also represents the central authorities and
is responsible to the Education Officer in the Region Command. The
Commission has a special budget, financed by local The budget

42 Official Gazette, No. ,1093 of 8 January .1952 See also section 11 of the
Education and Culture Law, No. 16 of :1964 ibid., No. 1763 of 26 May .1964
43 See Chapter 12 (sections )9092 of the said Education and Culture Law,
and the Education Tax Regulations, No. 1 of :1956 Jordanian Official Gazette,
No. 1286 of 16 July .1956
44 In the villages, the composition of the committee is slightly different: the
Head of the District Education Office serves as chairman, and the local school
principal and local mukhtar are members of the committee.
45 The tax is paid by all residents—not only parents of school children—and it
is based on the property tax rate: Reg. 2 of the Education Tax Regulations.
At the beginning of the ,s’70 the Education Tax Committees were authorized
to raise the tax: Order Concerning Amendments to the Education Tax Regu-
lations (Judea and Samaria) .oN( ,)501 :1972 Coll. P. & O. .J( & S.) p. .1220
 LOCAL GOVERNMENT 249

provides for the building of schools and the renting of buildings for use
by educational institutions; it is controlled by the Education Officer
(just as the Interior Officer controls municipal budgets). The author-
ities also contribute towards the building of schools, the size of the
contribution being dependent upon the financial situation of the town

or village, its need for buildings and the like. In the context of the
relationship between the central and the local authorities, the Com-
mission must be viewed primarily as a municipal body, although it is
somewhat less independent than the municipal corporation in that the
Head of the Education Office sits on the council. However, he is

a local resident, and his bond with his fellow residents is stronger than
his bond to the Education Officer who represents the central author-
ities. One should add that the municipal corporation enjoys a status
in the field of education which is not reflected in the statute book.
Mayors and important officials not infrequently travel to Arab countries
to raise funds for the improvement of schools in their towns. Donations
have been forthcoming—sometimes very willingly—both from Arab
States, especially Jordan, and from former residents who have migrated,
in particular to the Persian Gulf Emirates.
Days of Rest: During Jordanian rule, the municipal corporations
had no power to provide by secondary legislation or otherwise for a
weekly day of rest in shops and factories. Approximately two years after
the establishment of the Military Government, and after the municipal
corporations became aware that in Israel their counterparts may impose
and regulate a weekly day of a number of mayors requested
the Military Government to confer this power on them as well. Con-
sequently, the Municipalities Law was amended to empower municipal
corporations to enact the pertinent and indeed a number
of bye-laws were passed, suited to the character of each town. One
of the considerations was the predominant religion locally: thus, for
example, in Moslem Hebron, Friday was fixed as the day of rest,
whereas in Bethlehem, which is multi-religious, people could choose
their day of Here again, the activities of the municipal corpor-

46 Section 249 )20( of the Israeli Municipalities Ordinance (New Version), ,1967
47 See Order Concerning the Municipalities Law, No. 29 of 1955 (Amendment

no. )3 (Judea and Samaria) .oN( ,)331 :1969 Coll. P. & O. .J( & S.) Sup.
No. ,7 p. .667 The wording of the added sub-section was greatly influenced by
section 249 )20( of the Israeli Ordinance.
48 Municipalities Regulations (Opening and Closing of Factories in the Urban
250 M. DRORI

ation were broadened by an order of the Military Government. From

a formal legal point of view, legislation was necessary to authorize the

municipal corporations to determine the days of rest in their towns,
but this should not be viewed as interference in local government auton-

omy. The influence of the situation in Israel in this regard is specially

noteworthy.

G. SUPERVISION OVER THE MUNICIPAL CORPORATIONS

The status of the municipal corporations and the relationship between

central and local government are not determined solely according to
the division of responsibility. Central government is the superior of
the local authorities and a relationship of dependency exists between
them. A detailed examination of this dependency reveals very clearly
the nature of the relationship between the Military Government and
the local We turn therefore to those powers conferred upon
the municipal corporations which are subject to the control of the
central government, and to the competence of the central government
to assume the powers of the local authorities. It should be noted—though
a detailed discussion is not warranted here—that municipal corpor-
ations are also subject to financial control.”

H. PRIOR APPROVAL BY THE ISRAELI MILITARY

GOVERNMENT

We have already indicated that in certain cases prior approval must

be obtained from the central government, i. the Israeli Military
Government, for exercising certain powers. An increase in the number
of such cases suggests a decrease in the measure of local government
independence and vice versa.

Area of Hebron) (Judea and Samaria), :1970 Coll. P. & O. .J( & S.) Sup. No.
,7 p. .626 Municipalities Regulations (Opening and Closing of Factories in the
Urban Area of Bethlehem) (Judea and Samaria), :1970 ibid., p. .624
49 Regarding the complexity of the special status of the municipalities and of
the mayors, and their political relations with the Israeli Military Government
on the one hand and the Jordanian authorities and the Arab States on the
other, see, inter alia, S. Mishal, “Jordanian and Israeli Policy in the West
Bank”, in: The Hashemite Kingdom of Jordan and the West Bank, A. Sinai
and A. Pollack eds. New York ,)1977( pp. .217218
50 See sections 6061 of the Jordanian Municipalities Law.
 LOCAL GOVERNMENT 251

Municipal Bye-Laws: To give legal effect to the powers specified

in section 41A of the Municipalities Law, section 41B authorized muni-
cipal corporations to enact bye-laws. In Israel, municipal corporations
do not enjoy sovereign power to enact bye-laws: their bye-laws are
subject to the approval of the Minister of the Under Jordanian
law as well, the municipal corporation does not have exclusive power.
Every municipal bye-law must be approved by the Council of Ministers
and the King ,yadot( the Internal Affairs Officer in the Regional Com-
mand).** But a technical difference exists between municipal legislation
in the Region and in Israel. In Israel, it is the mayor who signs the
bye-law, while the Minister of the Interior only approves and counter-
signs it. Under Jordanian law, the Council of Ministers and the King
alone have the power to sign a bye-law, and only the preamble mentions
that they are approving the bye-law. The Military Government has
adopted the Jordanian procedure: the Internal Affairs Officer affirms
that the municipal council has passed the bye-law.
Description of the various by-laws passed in the last dozen years is
beyond the scope of this article.
Taxation: The relationship between the central and local authorities
in the enactment of bye-laws has a profound effect on the determination
of municipal tax rates which, under section 41C of the Municipalities
Law, must be fixed in bye-laws. The significance of this is obvious.
The municipal corporation may suggest tax rates but the final word
lies with the central government. By varying the tax rates as between
neighbouring towns, the central government can encourage settlement
and development in one town at the expense of another. Although such

a power exists formally, it has never to the best of our knowledge been
used for the purpose of discriminating between towns. The balance
between central and municipal government has been preserved.

51 Section 258 of the Israeli Municipalities Ordinance. See also section .250
Regarding bye-laws in Israel, see A. Winograd, Laws of Local Authority )1977(
(in Hebrew) pp. 203 ff.
52 The Order Concerning the Municipalities Law No. 29 of 1955 (Amendment
no. )8 (Judea and Samaria) .oN( ,)608 1975 [Coll. P. & O. .J( & S.), p.
1949] amends the Jordanian law by empowering the Regional Commander to
publish model bye-laws which the municipalities may, by resolution, adopt as
they stand or with changes. This too follows Israeli precedent (section 262
of the Municipalities Ordinance: the aim being to lighten the burden of the
municipalities on the one hand and to increase uniformity and egalitarianism
on the other.
252 M. DRORI

Budget: The central government has the power to review, supervise

and give prior approval to the budget. .
Approval by the Minister of the Interior to the proposal of the
municipal budget is required (section )561 of the Municipalities
Law); his powers were transferred to the Internal Affairs Officer
and even transfers from one item of the budget to another are
contingent on such approval (section )562 of the Other
rules deal more specifically with the financial administration of the
municipality.* Clearly, this aspect of supervision is not exhaus-
tive. For a thorough examination of the matter, we must analyse the
extent of central participation in the municipal budget by loans, grants
etc. Account must also be taken of financing by way of the voluntary
contributions made abroad and direct support from the Arab States,
especially Jordan.

I. ASSUMPTION OF LOCAL GOVERNMENT POWERS

BY THE MILITARY GOVERNMENT

The need for prior approval from the body higher in the administra-
tive hierarchy is not the only means of control and supervision. Not
infrequently, the superior body must take some more drastic step, the
most common being the assumption and exercise of some power. We
will look at two examples.
Making Regulations: Section 41C of the Municipalities
enables the Council of Ministers to make regulations on matters under
municipal responsibility which would ordinarily have been enacted as

a bye-law by the municipal corporation and approved by the central

government. Regular exercises of this power could totally divest local
government of authority and indeed examination of Jordanian legis-
lation reveals that it was not frequently implemented during Jordanian

53 Recently, municipal powers were widened with respect to the budget and the
signing of transactions and tenders. With limitations imposed according to
the sum involved, these matters fall within the exclusive municipal jurisdiction
and the approval of the Staff Officer for Internal Affairs is not required:
Order Concerning the Municipalities Law, No. 29 of 1955 (Amendment Neo.
)10 (Judea and Samaria) .oN( ,)632 1976 .lloC( P. & O. .J( & S.), p. .)68
54 Financial Regulations of the Municipalities, No. 4 of ;1955 Jordanian Official
Gazette, No. ,1235 of 3 August .1955
55 Added by Law No. 58 of :1966 Jordanian Official Gazette, No. ,1940 of
1 August .1966
 LOCAL GOVERNMENT 253

tule. Since 1967 the Military Government has not resorted to this
method of imposing an unwanted bye-law other than before the
municipal elections of ,1976 when the Military Government wanted to
widen the electorate, as we shall see later.
Planning and Building: In matters of planning and building there is

a possibility of the central assumption of powers. Under the local

Planning and Building Law the municipal council serves as a local
town planning By an order of the Regional Commander
the District Committee was merged with the Supreme Planning Coun-
cil®’ which represents the professional planning bodies in the central
government. Wide powers of control were vested in the Council, includ-
ing )1( amendment, revocation or attachment of conditions to licences
issued by local committee, )2( assumption of the powers of a local
committee, )3( issue of licences normally issued by local committees,
and )4( exemption from licences. Here also, the formal legal situation
does not provide a complete picture. Sometimes these extensive powers

are something of a dead letter and sometimes the norm. Only a thorough
field-study, which is beyond the scope of this paper, would reveal the
frequency with which they are invoked. According to my personal
knowledge, the Military Government almost never interferes in cases
of licences.*®

J. MUNICIPAL COURTS

The new network of municipal courts, set up by the Israeli govern-

ment at the beginning of °°1976 requires separate discussion. These
are magistrate’s courts for all intents and purposes. The judges are
Arab residents of Judea and The rules of procedure and

56 Section 9 )1( )a( of the Towns, Villages and Buildings Planning Law, No. 79
of :1966 Jordanian Official Gazette, No. 1952 of 25 September .1966
57 Section 1 )2( of the Order Concerning the Towns, Villages and Buildings
Planning Law, (Judea and Samaria) .oN( )418 :1971 Coll. P. & O. .J( & S.),
p. .1000
58 The Order Concerning the Municipalities Law, No. 29 of 1955 (Amendment

no. )6 (Judea and Samaria) .oN( ,)537 :1974 Coll. P. & O. .J( & S.), p. ,1314
extends the powers of the central government somewhat. This Order in fact
adopts the essence of sections 8 and 141 of the Israeli Municipalities Ordinance.
59 Order Concerning the Establishment of Municipal Courts (Judea and Sama-
Tia) .oN( ,)631 :1976 Coll. P. & O., p. 60 (hereinafter clled “Order
60 Section 4 of Order .631 The court comprises one judge (section ;)5 they were
24 1

evidence are the same as those followed in the magistrate’s courts.*

Their peculiarity lies in the fact that they have jurisdiction to try viol-
ations of municipal bye-laws and regulations and other laws of a
municipal committed within the municipal boundaries; the
prosecution is conducted by a representative of the municipality, ap-
pointed by the mayor from the ranks of municipal employees;* fines

are collected by the municipality, sometimes as an alternative to prison

sentences.** The initiative for setting up these tribunals comes from
the municipal and possibly the main reason, apart from
the effectiveness of speedy judgment by a court devoting itself to dealing
with municipal offences, is the need to increase municipal revenue by
the fines imposed. The fact that similar tribunals exist in Israel also
contributed to this In any event, it is important to note
that, under an Order issued by the Regional Commander on the initi-
ative of the elected leaders of the people, a new judicial body was
instituted, run entirely by local residents for their own welfare, with
its income directed to the development of municipal services. Thus a

also endowed with the auxiliary powers of a magistrate’s court in criminal

cases (section .)14
61 Section 8 of Order .631 For the purpose of appeal a decision is regarded as

a decision of a magistrate’s court in criminal matters (section .)10

62 Section 6 of Order .631 A list of the laws is cited in the Appendix to the
Order, and includes the following matters: planning and building, business
licensing, control over weights and measures, and protection of trees and
plants. Recently, several additional powers have been given to the courts:
public health and matters relating to the Water Authority in Judea (discussed
above). See Order Concerning Urban Courts )tnemdnemA( (Judea and Sa-
maria) .oN( ,)713 1977 .lloC( P. & O. .J( & S.), p. .)132
63 Section 9 of Order .631 However, the general prosecutor of the Area, who
is a local resident, enjoys a certain amount of control: every file is brougth
to him for perusal within 10 days of a decision and he may request periodical
reports from the court (section .)13 The prosecutor may also influence the
bringing of appeals before the regular courts.
64 Section 11 of Order .631 Section 2 )b( contains provisions concerning a court
which serves several municipalities. Section 16 specifies that the costs of the
court are to be covered equally by the municipalities served, but fines go to
the municipality within the boundaries of which the transgression was committed
(section 11 .))b(
65 The Order is very general; the Regional Commander acts only “after he has
been approached by the municipality” (section 2 .))a( Presumably also, it

was the municipalities which initiated the issuing of the Order itself.
66 See the Israeli Municipal Courts Ordinance: Drayton, vol. ,1 p. .1015 Order
631 is, however, more up-to-date and clearer.
 LOCAL GOVERNMENT 255

further contribution was made in fortifying the status of the municipality

and increasing its independence. Shortly after this Order was issued,

a court was set up upon request for the towns of Bethlehem, Beth
J’allah and Beth Sachor.*®

K. CHAMBERS OF COMMERCE

It is not only the municipal corporation and the local council which

possess political and other power. First, certain people are accorded
honour and respect, largely owing to ties of family or clan (a very
important factor in Arab society), to wealth and financial status or
to religious position. Secondly, groups having a common element, e.g.
doctors, lawyers and teachers acquire status and power by virtue of
their grouping. One focal group is the chamber of commerce.
During the period of the British Mandate, chambers of commerce

were established as Ottoman recognized under private

law, whose status, procedure and activities are specified in internal
articles of association. The influence of British law which regards
chambers of commerce as free associations was evident.
In ,1949 prior to the annexation of Judea and Samaria by Jordan,
the Chambers of Commerce and Industry Law, No. ®41 was enacted
in the Jordanian Kingdom east of the Jordan River. This law provided

a framework for the establishment of chambers of commerce in

Amman and other major cities with specific powers and duties. It did
not provide for the composition of the chambers of commerce, elec-
tion of officers or membership-dues but empowered the Council of
Ministers to make regulations in this respect. Such regulations came
into force in the same year, °19497
Jordan’s annexation of the West Bank in 1950 did not entail the

67 See Coll. P. & O. .J( & S.), p. .334

68 Under Ottoman Law Concerning Corporations of .1909 This law, like all
Ottoman law, remained in force during the period of the Mandate by virtue
of section 46 of the Palestine Order in Council, .1922
69 Jordanian Official Gazette, No. ,992 of 6 August .1949 Initially enacted as a
temporary law (section ,)1 it was declared to be permanent by the National
Council on 7 September :1950 Jordanian Official Gazette, No. ,1083 of 1
October .1950
70 Chambers of Commerce Regulations, No. 1 of ,1949 made by virtue sec-
tion 7 of the Chambers of Commerce and Industry Law. These regulations

were repealed and replaced by other regulations in .1961

256 M. DRORI

application of East Bank law to the West Bank. On each Bank, the
former law remained in force so long as no new laws applying to
both Banks were passed. For the sake of unity, the Chambers of
Commerce Law of 1949 and the regulations thereunder were extended
to the West Bank in !19537 Since ,1953 therefore, the chambers of
commerce in Judea and Samaria have operated under the Law of
,1949 governed since 1961 by the Chambers of Commerce Regulations
of .1961
The Law states that chambers of commerce will be set up in
Amman and in the regional and district centres (section )2 and that
each chamber will operate within the boundaries of its district or
sub-district (section .)3 The chambers of commerce constitute inde-
pendent legal entities, with legal capacity (section ,)5 responsible
to the Minister of National Economy (regulation ,)76 whose powers
include “supervision of the chambers of commerce, making them
uniform, and the regulation of their affairs in accordance with the
laws and regulations pertaining to them”.”
Their functions are to represent the before the Govern-
ment, to strengthen the bonds amongst the merchants themselves, to
attempt to resolve internal conflicts by means of arbitration and to
certify documents which specify the producer of products, the place
of production and the price (sections 4 and ,6 regulations .)6975
Two main organs comprise the chamber of commerce: the general
body and the administrative council. The general body consists of all
the members (regulation )A3 and these elect the chamber’s admin-
istrative council. Any merchant conducting business within the limits
of the chamber’s area of operation and paying his dues to the chamber

71 See: Law Concerning Application of the Chambers of Commerce and Industry

Law no. 41 of ,1949 and the Regulations Made on its Basis which are Valid
in the East Bank of the Hashemite Kingdom of Jordan, on the West Bank,
No. 11 of :1953 Jordanian Official Gazette, No. 1130 of 1 January .1953
The Jordanian authorities employed a similar legislative technique in other
situations, for instance to make the customs and stamp duty laws applicable

on the West Bank: the Law Unifying the Laws of Both Banks, No. 34 of
:1950 Jordanian Official Gazette, No. 1939 of 16 November .1950
72 See regulation 2 )a( )10( of the Organization and Administration of the
Ministry for the National Economy Regulations, No. 36 of :1966 Jordanian
Official Gazette, No. ,1920 of 16 May .1966
73 The term ”tnahcrem“ is widely defined to include inter alia money-changers,
contractors, importers, hoteliers etc.: regulation .)b(3
 LOCAL GOVERNMENT 257

may become a member (regulation .)4 Merchants are obliged to

become members of the chamber of commerce in the area in which
they conduct business (regulation .)C3 A non-member is not entitled
to the services provided by the chamber (regulation ;)81 nor is he
entitled to participate in government tenders (regulation .)82
The administrative council is the executive arm of the chamber of

commerce, and has 612 members, as determined by the Minister

of National Economy (section *27 Members of the administrative
council hold office for four years (regulation ;))a(10 at the end of
the term, a date is fixed for new elections.75
Upon the entry of the IDF on 7 June ,1967 the powers of the
central authorities over the chambers of commerce were transferred
to the Regional Commander; by virtue of the Order Concerning Cham-
bers of Commerce, these powers were delegated to the Head of the
Economic Branch in the Regional Command.”
Whilst the statutory functions of the chambers of commerce are

many, their actual status and influence go far beyond these. That
was so during Jordanian rule and since 1967 their power, status and
influence have grown even more. The reasons are as follows:
)a( As we have already explained, the activities of national bodies
had ceased and the only political elements which continued to operate

were local—the municipal corporations, chambers of commerce and

religious organizations. The position of these bodies was enhanced, both
because of the tendency of the local population to close in ‫מס‬ 1
and because the Military Government wished to exploit this phenom-

enon for the purpose of governing the area and maintaining control.
)b( The status of the hitherto dominant political elite, loyal to
the previous ruler, declined. The occupying power tended to play
down its importance. More neutral groups were able to emerge and take
their place on the political stage. Chambers of commerce are more

or less neutral, at least because, from a superficial point of view, what

74 The number of members of the individual administrative councils is as follows:

Ramallah and Bethlehem — ;12 Hebron — ;11 Nablus — ;9 Tul-Karem and
Jenin — ;8 in Jericho, the number fell to .3
7 The power to fix the date for elections in Amman rests with the Minister
for the National Economy, and in the various districts, the District Com-
missionner: regulation .12
76 Order Concerning Chambers of Commerce (Judea and Samaria) .oN( ,)360
:1969 Coll. P. & O., .J( & S.), p. .707 See section ,2 and Appointment no. 1
of 5 January ,1970 Coll. P. & O. .J( & S), p. .793
258 M. DRORI

unifies their members are economic and not political considerations.

)c( A third reason for the elevation of the chambers of commerce

is the economic success achieved in Judea and Samaria since ,1967
which has brought in its wake an improvement in the standard of living
of many sectors of the In the Jordanian period, political
functionaries were held in esteem, although their role was primarily
representative .g.e( members of parliament).7® Today, however, the
“financial aristocracy” is gradually graining in importance as an in-
creasingly dominant element in a society in which importance grows
with wealth and financial power. The position of the chambers of

commerce, in which the majority of economic power is concentrated,

has inevitably become more central.
)d( A further factor is the new role bestowed upon the chambers

as an outcome of the Six Days’ War. At the initial stage, the routes
to Jordan were closed. This was a great blow to the local inhabitants,
whose income had depended heavily upon exports to the East Bank.
The effects were particularly felt in relation to agricultural produce,
the fertile West Bank yielding enough to supply the East Bank as well.
This problem rendered it possible—or at least lessened resistance by
Jordan—to the opening by Israel of the bridges across the Jordan
River, which has in time led to ever increasing trade between the West
and the East Banks. Limitations were placed on such trade by the
Jordanian authorities who feared the entry of Israeli goods; only goods
accompanied by a certificate signed by a chamber of commerce in
Judea and Samaria—an Arab body—confirming that the merchandise
had been produced on the West Bank, was allowed entry. The issue
of such certificates added greatly to the powers of the chambers of

commerce and contributed significantly to the entrenchment of their

position and increased influence.
(6) Both intentionally and unintentionally, the Military Govern-
ment has contributed to the prominence of the chambers of commerce
by treating them as a means of maintaining relations with the economic
elements in the Area. It has, for example, been in touch with the

77 Cf. Mishal, op. cit., pp. ;216217 A. Bergman, “The Economic Development
of the Administered Areas” in Self Rule/Shared Rule—Federal Solution to
the Middle East Conflict, D. J. Elazar ed. ,)1979( pp. 45 ff.
78 Regarding leadership on the West Bank, sce D. Farchi, “Society and Politics
in Judea and Samaria”, )1971( 57 Ma’arachot, .1319 (Reprinted in: Israeli op.
cit., (supra n. )26 pp. ).159168
 LOCAL GOVERNMENT 259

chambers of commerce both before and after the adoption of signifi-

cant fiscal measures, such as devaluation, raising taxes, applying

value added tax etc. Statutory provision again requires a copy of
published customs regulations to be lodged with chambers of com-

merce. In times of crisis and tension, too, the chambers of commerce

retain their importance: in those cases in which strikes and civil
disturbances erupt, the chambers of commerce, as representatives of
the merchant-body, are called upon to use their influence to end the
strike.
For all these reasons, the chambers of commerce in Judea and
Samaria have become a political factor to be reckoned with. They
wield greater influence than the religious organizations ,tpecxe( poss-
ibly, in Hebron, where the Wakf and the religious leadership have a
special status) although they still cannot challenge the primary of
the municipal corporations especially in the large towns.

L. MUNICIPAL ELECTION LAW IN JUDEA AND SAMARIA

Until ,1948 Judea and Samaria formed part of Mandatory Palestine

and municipal elections were governed by the Municipal Corporations
Ordinance of 19347 Following annexation by Jordan on 24 April
,1950 this Ordinance continued in force, as did the rest of existing
Mandatory law. In ,1954 a new Municipalities Law was enacted by
the Jordanians, but it was repealed in 1955 and replaced by the Muni-
cipalities Law No. 29 of ®1955 which is still in effect today.
Under this Law a municipal council sits for a term of four
The precise number of council members is not specified but is left
to the discretion of the Minister of the Interior acting on the recom-
mendation of the District Commisioner: the minimum is 7 and the
maximum 12 (section .)7 The Minister fixed the number of members
in accordance with the number of

19 Official Gazette of Palestine, No. ,414 of 12 January ,1934 Supp. ,1 p. .1

Regarding this Ordinance, its sources, the circumstances of its enactment,
subsequent changes, see A.Y. Shaffat and Z.H. Cohen, Local Government in
Israel, England and Scandinavia ,)1978( pp. 5 ff (in Hebrew).
80 Jordanian Official Gazette, No. ,1225 of 1 May ;1955 see section 64 .)1(
81 Section 8 .)1( Under the original Law, the term of office was five whole years
(section 10 )2( .))b( In Israel, the term is four years: Shaffat and Cohen,

G2... CH,
82 806 the announcement published in Appendix no. 1 of the Jordanian Official
200 M. DRORI

Section 12 confines the right to vote to male®* Jordanian citizens

over the age of 21 resident within the municipal boundaries

for one year prior to the compilation of the electoral roll,8° who have
paid Land Tax or some other municipal tax of at least one dinar.®®
This last requirement is important from a socio-economic viewpoint
since it limits voters to the middle and upper strata of society.
In addition to the foregoing, a candidate for election to municipal
office must be at least 25 years of age, literate, and not a municipal
he must never have been convicted of a felony or a crime
involving moral turpitude or declared a bankrupt; and he must not
be a member of another municipal council or a candidate

Gazette, No. 1231 of 16 June ,1955 which directed that there would be twelve
members of the Amman municipal council. The numbers for Judea and Sa-
maria was fixed as follows: Nablus and Hebron — ;10 Tul-Karem, Bethlehem
and Ramallah — ;9 Jenin, Kalkiliya, Al Bira, Jericho and Beth Sachor — .8
In other countries too, the size of the local population is an important factor
in determining the number: Shaffat and Cohen, op cit., p. .29
83 Regarding the legal status of women under Jordanian law in general and
their lack of voting rights, see: .S§ Shitrit, “Civil Rights Under Jordanian
Law”, )1978( 1 Mishpatim pp. ,113 .115 Since the publication of this article,
the Jordanian law has been amended and women have been given the right
to vote for the House of Representatives, though not for the local authorities.
84 Under the original Law (section 7 )b( ))a( people aged 18 were entitled to
vote. It should, however, be noted that according to section 3 )11( of the
Temporary Law of Elections for the House of Representatives, No. 24 of
1960 (Jordanian Official Gazette, No. ,1494 of 11 June )1960 the minimum
voting age was fixed at .20
85 Section 2 )6( of the Law defines a resident factually as “A person normally
resident in the house in which he sleeps”, but it adds an alternative criterion:
the place of work. Thus a person could be entitled to vote in two munici-
palities: Section 2 )6( therefore concludes thus: “No one shall exercise his
right to vote in more than one municipality”.
86 See Resolution no. 14 of the Special Bureau for the Interpretation of Laws:
Jordanian Official Gazette, No. 1233 of 2 July ,1955 which states that land
tax includes both urban tax and government land tax.
87 A municipal official or clerk who wishes to present his candidacy must resign
from office 10 days before candidacies are finalized (section 18 .))3( Regarding
the right of clerks of the Military Government to stand for municipal elec-
tion, see in detail below, in the analysis of the petition to the High Court
of Justice which was filed during the 1976 elections.
88 These requirements must be met not only on the day on which candidacy is
presented but throughout the whole term of office: see section 18 )noisulcnoc(
and section 37 of the Law. The Israeli Supreme Court considered it as an
automatic loss of membership, with no need for further action: Daoud v.
Minister of Defence, ,)1978( 32 P.D. )3( .474
 LOCAL GOVERNMENT 261

An Election Commissioner, appointed by the Minister of the Interior,

is in charge of elections: he appoints a Voters’ Registration Committee
11
which compiles a list of persons entitled to vote (sections .)1011
Though its task is apparently technical in essence, in the Jordanian
period the Committee was of considerable importance, since the voters
listed did not always meet the statutory requirements, while many per-

sons who were qualified to vote were not

Elections are personal. Anyone wishing to present his candidacy
must submit an application and deposit 10 dinars. If the number
of candidates is equal to the designated number of council members,
the candidates become members without elections being held .)heikzat(
(section .)20
Voting is conducted by secret ballot. The voter writes down the

names of the candidates of his choice on a card provided for that pur-
pose but an illiterate voter may dictate the names to a member of the
Polling Committee in the presence of the Committee’s Chairman -ces(
tion .)23 Because this mode of voting presents opportunities for cor-
ruption and fraud, it raised doubts in the mind of the electorate about
the honesty of the elections during Jordanian times.
Under section ,55 the Council of Ministers appoints the mayor, on
the recommendation of the Minister of the Interior, from amongst
the council members; under the previous Law of 1954 the municipal
council had the power to elect the mayor. The Minister of the Interior

may, with the consent of the Council of Ministers, appoint two addi-
tional members to the council who have the same rights as the elected
members (section .)27 As a result, the mayor may well be a person
who was not elected to the municipal council. During the Jordanian
period, the central government was able to and in fact did appoint
its own nominee to be mayor, even though the person had not gained
the support of the local residents at the The central govern-
ment may also dismiss the mayor, if the “welfare of the municipality
so

89 The Law permits appeal against the rolls prepared by the Committee to the
Plenary Committee (section ,)13 and then to the president of the court of
first instance with local jurisdiction (section .)14
90 Section .17 A person who is elected has his surety refunded (section 19 ))1(
1$ In this way, Mahmud Ali el Jaberi was coopted, on 18 October ,1964 by the
Jordanian authorities, to the Hebron municipal council, and on the same
day appointed mayor.
92 Section 34 .)3( The section concludes with these words: “The decision of
 262 M. DRORI

The last elections in the central towns of Judea and Samaria were
held in September .1963 New elections were thus due in September
.1967 Was Israel bound by international law to hold such municipal
elections? Even on the assumption that Israel’s status is that of an
occupying power, the Military Government, it is suggested, might sus-
pend the elections. In September ,1967 only three months after the
institution of IDF rule, the Military Government was still in the

process of organization. The population had not yet adapted itself to

the new situation, and elections, the fractional disputes and the propa-
ganda it would involve would have interfered with public order, and
according to mid-eastern traditions even bloodshed. On the other hand
the local population was in need of a stable local government. In such

a situation, international law permits suspension of local law.

The preamble to Order No. %80 which effected the suspension,
stated that:

Being of the opinion that such action is required for the welfare
of the local residents and in the interest of good government, and
in my capacity as Commander of the IDF in the Region, I
hereby

And in order to avoid a vacuum, section 2 provides

The administration of each local authority shall remain in office

regardless of any provision of local law, until a further Order
is issued by the Commander of the IDF in the

M. MUNICIPAL ELECTIONS—1972

In ,1971 after four years of military rule and the stability it introduced,
the suspension of elections was not justified any more on grounds of

the Council of Ministers on this matter is final and may not be appealed”.
From this we learn that during the Jordanian period almost total control over
the municipalities lay with the central government.
93 Order Concerning Extension of the Terms of Office of the Executives of
Local Authorities (West Bank) .oN( ,)80 :1967 Coll. P. & O., .J( & S.),

pp. .200201
94 The Order extended the term of office of all local authorities, and not only
municipal councils. Regarding rural councils, see below. Under section 3 the
executive remained in office, even though its number fell below the minimum
required by law.
 LOCAL GOVERNMENT 263

i government and public order. It was therefore decided that muni-

elections be held as part of the process of normalization. On any
mew of the legal status of the Region, such elections were quite appro-
perhaps even essential.
decision was embodied in the Order Concerning Municipal Elec-
.sneG‘ The preamble should be quoted, for it explains the background

i legitimizes the Order from the point of view of international law:

Whereas the term of office of the municipal council has expired

according to law, and whereas I am of the opinion that, for the
sake of orderly public administration and safeguarding the civil
rights of the population, elections for municipal councils should
be conducted according to the law, I hereby order as follows.

This Order not only set the local law in motion (section ))a(2 but
was also intended to implement civil rights; hence the different views
regarding the Military Government’s role in Judea and Samaria are
im a manner integrated.
Section 3 of the Order provides that term of office of a municipal
council shall expire 14 days after the date set for elections and that
council members shall cease to hold office on that date. It followed
that if for some reason no municipal elections were held, the municipal
council would cease to function and a vacuum be created. In such
event, the Military Government’s spokesman announced, that the IDF
would appoint an Army officer to administer municipal
The Order, it must be stressed, only revived the local law but did not
in any way amend its provisions. It is submitted that, in the majority
view, regarding legislative powers of the Military Government, it
is quite valid to increase thenumber of people entitled to vote
and to be elected and to accord women the right to vote and to abolish
the property franchise. As we shall see, such amendments were in
fact introduced before the second elections held in .1976 Presumably
the reason for leaving the local law intact on the occasion of the
19712 elections was that amendment might have been rejected by
the population on this first occasion of the elections and thus prejudiced
the chances of successful elections.

Coll. P. & O. .J( & S.), p. 1099 (hereinafter called “Order .)”454
% Davar Newspaper 20 December 1972 (quoting the Military Government spokes-
man) and Al-Kuds Newspaper of the same date.
264 M. DRORI

Order No. 454 gave the Commissioner®” the authority to fix a date
for holding elections (section .))b(2 The Commissioner in fact first
set two such dates, one for the towns of Samaria and Jericho on 28
March ,1972 and one for the towns of Judea on 2 May %.1972
A special Order permitted candidates for the Nablus Municipal
Council to present their candidature up to the eve of election day, even
though the lawful period of time had expired. This was done after it
became clear that some local candidates had withdrawn in the face
of terrorist threats. When the persons behind the threats had been
traced, it was decided that anyone wishing to present his candidature,
without fear of pressure and intimidation, should be allowed to do

so. In this regard it was found necessary to extent the period generally,
by empowering the Commissioner to prescribe an additional period.”
The Municipalities Law of 1955 specifies that the public must be in-
formed of such period five days prior to the commencement of pre-
sentation of candidatures, in order to enable them to do so (section
.))161 The Law also requires that a list of the candidates be exhibited
at every polling station and published in daily newspapers at least three
days prior to the election date (section .))211 Had there been any obli-
gation to act according to these two provisions, it would have been
impossible to extend the period for presenting candidatures. Order No.
459 therefore provided that these requirements would not apply to
the additional period (sections )26 and .)3 The Commissioner exercised
his powers in Nablus. This was not really in keeping with the spirit
of the Election Law, since the identity of the candidates only became
known to voters there on the evening before the elections, giving very
limited, if any, time to consider preferences. The alternative, however,

was not to hold the elections at all. In our opinion, it is preferable to

hold elections, even if the conditions are not all ideal, rather than
cancel them altogether.

97 The Commissioner is the Staff Officer for Internal Affairs in the Regional
Command: see Appointment No. ,9 Coll. P. & O., p. .1147
98 Order Concerning the Holding of Municipal Elections ,nineJ( Tul-Karem, Kal-
kiliya and Jericho) (Judea and Samaria), ,1971 of 26 November ,1971 and
the Order Concerning the Holding of Municipal Elections .oN( )1 (Judea and
Samaria), ,1971 of 19 December ;1971 Order Concerning the Date for Municipal
Elections .oN( )2 (Judea and Samaria), ,1972 of 30 January .1972
99 Order Concerning Municipal Elections (Provisional Instruction) (Judea and
Samaria) .oN( ,)459 ;1972 Coll. P. & O. .J( & S.) No. ,29 p. 1120 —retfaniereh(
Order No. .)459
 LOCAL GOVERNMENT 265

As we have indicated the elections in Judea and Samaria were held

im two stages, in Samaria and in Jericho on 28 March ,1972 and in
Judea on 2 May .1972
The number of candidates—the elections, it should be remembered

are not by party but personal—was quite large and included many per-
sons who had never before served on a municipal council. The public
displayed political awareness at all stages. Most remarkable was the
high percentage of participation, both absolutely and as compared to
elections held during the Jordanian period: in Samaria it was %839
(as against %75 in the Jordanian period) and in Judea %878 (as
against .)%758 Elections were held in 21 of the 23 towns where they
had been planned. In Hebron and Silfit, agreed lists )sheikzat( were

Under Jordanian law, the central government had, it will be recalled,

the authority to appoint the mayor and two additional council members,
either of whom could also be appointed mayor. The Military Govern-
ment did not take advantage of either of these powers to affect results
or to circumvent the wishes of the residents. Official policy was that the
Military Government would only appoint as mayor a person chosen by
the municipal council. Thus, the Law was amended de facto by being
implemented in a more democratic fashion.
It is noteworthy that subsequently the Jordanian Government gave
the newly elected municipal councils de facto recognition and complete

Discussion and analysis of the political aspects of the elections,

including the positions and policies adopted by the military authorities,
the local residents, the Jordanian authorities and the terrorist organi-
zations are not within the scope of this paper, although much has been
written on the

Gazit, “Towards the Sixth Year of Israel’s Presence in the Occupied

Territories”, Ba’ayot Benleumiyot—International Problems, Vol. XI, p. 11 (in
Hebrew).
1002 4] Hamishmar Newspaper, May ,89 ,1972 reported that the mayors had re-
ceived letters of congratulation from Jordan’s Minister of Interior. The Minister
also requests the mayors who had been elected for the first time to send in their
signatures, so that the Jordanian Authorities may legally confirm official docu-
ments and certificates bearing their signatures.
101 See Sinai and Pollack, op. cit., p. .225 See also inter alia, D. Farchi, “Political
Stances in Judea and Samaria, ,’19721973 )1973( 23 Ma’arachot ,9 12 ff;
reprinted in: Israeli, op. cit. (supra n. )26 pp. .169181 Y. Yizhar, “The Muni-
 266 M. DRORI

It may be concluded that in holding municipal elections in Judea

and Samaria, Israel fulfilled its obligation under international law and
also exhibited concern for the population and their civil rights. The elec-
tions contributed to the creation of an atmosphere of political awareness
amongst the local population, which may be regarded as an important
manifestation of the political identity of the local population. This
identity, as we shall see, was further strengthened during the municipal
elections of .1976

N. ELECTIONS FOR CHAMBERS OF COMMERCE

As we have already explained, the chamber of commerce in Judea

and Samaria operates under laws and regulations enacted during the
period of Jordanian rule. Its business is conducted by an administrative
council of 612 members, as determined by the Minister of National
Economy. The administrative councils, like the municipal council,
holds office for four years and at the end of the term the appropriate
Jordanian authorities would set the date for elections.
All members are entitled to vote for the administrative council and

a member of at least two years standing, who is over ,30 has paid all
his chamber dues, resides permanently within the boundaries of the
chamber’s area of operaion and has no criminal record is eligible for
election (regulation 8 of the Chambers of Commerce Regulations).
A candidate must lodge a surety of 10 dinars which is refunded if he
is elected (regulation .)15 The electoral roll is prepared by an Inspec-
tion Committee which is also responsible for ascertaining the eligibility
of the candidates and for publishing their names (regulation .)17 The
Committee ' consists of five merchants who are not candidates. A
different body is responsible for conducting the elections, a Supervisory
Committee composed of a senior official as chairman and two merchants

cipal Elections in the Area of Judea and Samaria: Political Aspects”, )1974(
5 State, Government and International Relations, ;119 Sh. Mishal, “Judea and
Samaria: Anatomy of the Municipal Elections”, )1974( 24 HaMizrach HaChadash
—The New East, ;63 A. Sela. “The P.L.O., the West Bank and the Gaza Strip”,
)1978( 8 The Jerusalem Quarterly, ,66 .7374
102 This committee was appointed by the District Commissioner or the District
Officer, as the case may be. The Minister for the National Economy appointed
the Inspection Committee in Amman: This division between the candidates
and Inspection Committee, is accepted in many electoral systems in the world,
including Israel.
 LOCAL GOVERNMENT 267

who are not candidates (regulation .)14 The Supervisory Committee

may hear appeals against decisions of the Inspection Committee relating

to the compilation of electoral rolls and the lists of candidates -uger(
lation .)18 It also serves as the Polling Station Committee (regulation
21 ff.).
The composition of the bodies organizing the elections and the
authorities who appoint these bodies demonstrates a balance between
the independence of the merchants, their internal autonomy and the
control, though not stringent, of the authorities over the chambers of

commerce.
Elections for the chambers of commerce in the main towns in Judea
and Samaria ,sulbaN( Bethlehem, Ramallah and Tulkarem) were held
in .1965 The next elections should therefore have been held in .1969
As we have explained, the Military Government was bound to hold
these elections as part of its obligation to preserve the local law and
elections might only be suspended under international law when special
circumstances, such as public order, good government or the well-being
of the population, so required. Would public order or good government
have been affected, had elections been held in ?1969
In discussing above a similar question relating to municipal council
elections, we concluded that suspension was justified, mainly because
those elections were scheduled for September ,1967 only a few months
after the occupation. The situation with respect to chamber of com-

merce elections is somewhat different: they were due two years (instead
of four months) after the institution of IDF rule; the number of voters
involved was much smaller and propaganda was likely to focus on
economic-commercial problems alone. Suspension of the elections is
therefore more difficult to justify. Nevertheless, the general powers of
the Regional Commander to maintain public order provided grounds for
suspension if danger existed (though not as clearly as in municipal
council elections) that the orderly pattern of life would be affected
and give rise )ylbissop( to calls for elections to other institutions and
to disturbances. Presumably, the decision to suspend elections was also
supported by political considerations, possibly that it was preferable
that the first elections in Judea and Samaria held under Israeli military
rule should be for the municipal councils, as these are of more general
concern.
A legislative technique, similar to that employed in relation to the
 268 M. DRORI

municipal council elections, was used to suspend the elections. A special

Order was issued suspending the elections to the administrative councils
of the chambers of commerce and specifying that the councils should
remain in office, notwithstanding the provisions of the Chambers of
Commerce Law, until a further Order from the Military
As we have seen, the municipal elections law, suspended in August
,1967 was taken out of “cold storage” in .1971 The fact that elections

were held, and the success of the Military Government in organizing

and running them without any mishap, played no small part in the
decision to hold chamber of commerce elections. The following con-
siderations presumably played a part as well:
)a( The municipal elections were a sign of normanization of life
in Judea and Samaria in spite of occupation. To hold chamber of

commerce elections would constitute a further step towards normali-

zation, consistently with Israeli policy.
)b( Local residents, or more precisely the merchants entitled to
vote, requested that elections be held.1%
)c( The municipal councils elections had shown that fear of disturb-

ance of public order was not well-founded.

)d( By inference, international law required chamber of commerce
elections to be held as a part of the obligation to preserve existing law.
Formal legal expression of the decision to hold chamber of commerce
elections was given by an the preamble of which explained
the No date was fixed for the elections, but the Head

103 Section 2 of the Order Concerning Extension of the Terms of Office of the
Executives of Chambers of Commerce (Judea and Samaria) .oN( ,)328 :1969
Coll. P. & O. .J( & S.), p. .664 See section ,3 which states that even if there
is no legal quorum, the executive will continue to hold office. This section
is identical to the Order Concerning the Extension of the Terms of Office of
the Executives of Local Authorities (West Bank) .oN( :)80 Coll. P. & O., p.
201 (notes 93 and 94 supra).
104Jt was the Military Government’s policy to hold elections for chambers of
commerce which requested them. 566 D. Farchi, op. cit. p. .13
105 Order Concerning the Holding of Elections for the Executives of Chambers of
Commerce (Judea and Samaria) .oN( ,)483 :1972 Coll. P. & O. .J( & S.);
p. .1167
106 “Whereas the term of office of the administrative councils of the chambers
of commerce has expired under local law, and whereas I am of the opinion
that for the sake of cffective public administration and of safeguarding the
rights of the population the holding of elections for the administrative councils
of the chambers of commerce should be allowed I hereby order as follows...”.
 LOCAL GOVERNMENT 269

of the Economic Department in the Military Command was authorized

to set a date (section .)2 This Order, however, differed from the parallel
Order relating to the municipal councils: whereas the latter was gen-
erally formulated, this Order gave the Commissioner a discretion
whether or not to hold elections at
Now, let us survey the elections that were held in the Chambers of
Commerce in several towns in the Area during .19721973
Jenin: Here, a chamber of commerce was set up in 1955 under sec-
tion 2 of the Chambers of Commerce Law. No elections for its admin-
istrative council had been held since 1955 and the merchants of the
town were the first to request of the Military Government to hold
elections. The Head of the Economic Department acceded to this
request and decided that the elections would be held on 5 October
.1972 He appointed an Inspection Committee, comprising local mer-
chants, and a Supervisory Committee, chaired by a judge of the Jenin
Magistrate’s Court, to ensure the smooth running of the elections. An
electoral roll was compiled, and nineteen merchants presented their
candidatures for the eight seats. Three hundred and twenty-three mer-
chants out of a possible 358 entitled to vote .ei( )%90 participated in
the elections which were held on the due date and with no mishap.
Seven of these elected were new people and only one had served on
the outgoing council. After the elections, the council met and appointed

as head of the chamber the person who had received the most votes. It
also distributed the other offices of the council.
Nablus, the largest town in the Region was the second in which
elections were held. In this case too, the merchants’ was
granted by the Military Government, and the elections were fixed for
11 January °19731 Here also, the Supervising Committee was chaired

All this is similar to the preamble to the Order Concerning the Holding of
Municipal Elections, cited above in the text, near n. .93
107 But not an unlimited discretion. Under section 5 of the Order Concerning
Interpretation (Area of the West Bank) .oN( ,)130 :1967 Coll. P. & O.
.J( & S.), p. ,227 the power must be exercised “with all possible as is
the case with every power for which no time has been fixed, in security legis-
lation, for its implementation.
108 Sixty-four merchants signed the request, which was presented to the Govern-
ment on 20 November .1972 The mayor supported the request. The reason
for the request was that the administration of the chamber of commerce was
paralysed due to the lack of a quorum (only 5 of the 12 members were
active).
109 Order Concerning the Holding of Elections for the Administrative Council
 200 M. DRORI

by a local judge. Twenty-nine merchants put their names forward but,

after inspection by the Committee, only twenty-five candidates re-
mained."'° Propaganda was lively but the elections were tranquil and
honest, and %90 of the merchants The “Solidarity Bloc”, which
included young intellectuals from respected families and was backed
by the mayor, gained most of the seats, its leader receiving the largest
number of votes. The participation is quite remarkable when compared
with what took place in Nablus on the eve of the elections for the
municipal council, necessitating an extension of the time for presenting
The status of those elected, and the intensity of the
elections in the capital of Samaria are a further indication of the
rising position of the chambers of commerce. One can understand the
effort invested in these elections, in order that an economic-commercial
body, in permanent contact with the Israeli and the Jordanian autho-
rities, should win seats on the administrative council.
Kalkiliya: During the Jordanian period this town had no chamber
of commerce: Tulkarem had a chamber of commerce with jurisdiction
under section 3 of the Law, over the whole district, including Kalki-
In November ,1972 a group of 40 merchants approached the
Commander of Tulkarem and asked that a separate chamber be set

up in Kalkiliya, for the “benefit of the people of the town and trade
and industry there.” There is good reason to believe that this local
initiative was taken as a result of the elections in Jenin, talk of elec-
tions in Nablus and the increasing economic importance of
The Military Government acceded to the request because it wanted to

encourage the establishment of local bodies in each town, even though

this step somewhat cut Kalkiliya off from the ”pihsnaidraug“ of

of the Chamber of Commerce )sulbaN( (Judea and Samaria), ,1972 of 22

December .1972

were disqualified for being under-age, one because of the brevity of his
membership in the chamber and the fourth withdrew his candidacy.
111 Of 928 eligibles (which is more than double the number of merchants reg-
istered in the chamber for the clections of ,)1963 823 merchants voted.
112 Regarding the Nablus elections, see Farchi, op. cit.
113 See Farchi ibid.
114 Resolution Concerning the Establishment of Chambers of Commerce -laK(
(Judea and Samaria), ,1972 of 19 December ,1972 made by virtue
of section 2 of the Law.
The founding committee was set up under regulation 6 )a( of the Regu-
lations for the purpose of dealing with requests for acceptance as members
of the council.
 LOCAL GOVERNMENT 271

Tulkarem. Shortly afterwards a chamber of commerce was set up

and a Founding Committee appointed. The number of members of the
administrative council was fixed at After the Founding Com-
mittee had prepared the ground, elections for the new chamber of

commerce were set for 15 February .1973 Credit is due to the local
merchants who within a space of 34 months initiated a chamber of

commerce and held democratic elections for its

Jericho was the last of the chambers of commerce where elections

were held on 12 April Here also, initiative came from the

town merchants. Following these elections, the number of council mem-
bers was restored to eight, after having stood at only three for a long
time.
It must be emphasized that in other towns of economic or com-
mercial importance, such as Bethlehem, Hebron, Ramallah and Tul-
karem, elections were not held because council members were satisfied
with the existing situation and the Military Government did not wish
to exert any pressure upon them.
The policy of holding elections only in response to local request may
be desirable from a political but is difficult to justify from
the general legal aspect. It also demonstrates a certain inconsistency,
for if the Military Government is to implement local law as it stands,

as it must do under international law, of what relevance is a local

request? Moreover, municipal council elections were held in all towns,
regardless of the wishes of the people. Why did policy differ in respect
to the chambers of commerce?
At all events, the elections that were held provided further evidence
of the involvement of the population, and their active participation

115 According to the original Resolution, there were to be six members, but
under a Resolution of 5 February ,1973 the number was increased to eight.
116 Order Concerning the Date for Elections for the Administrative Council of
the Chamber of Commerce )ayiliklaK( (Judea and Samaria), ,1972 of 28
January .1973 In these elections too, a judge of the magistrates court chaired
the inspection committee (as in Jenin and Nablus). Regarding the elections
in Kalkiliya, see Farchi, op. cit.
117Order Concerning the Date for Elections for the Administrative Council for
the Chamber of Commerce )ohcireJ( (Judea and Samaria), ,1973 of 25 March
.1973 See Farchi, op. cit.
118 Farchi, op. cit. thus, describes the position of the Military Government but
does not explain why the Military Government fixed one compulsory date
for the municipalities, whereas the elections for chambers of commerce were
held only upon request.
 272 M. DRORI

testifies to their feeling that their vote carried weight. The chamber
of commerce elections gave rise to a new set of economic leadership,"
and the fact that they were held enhanced the position of the cham-
bers of commerce: an elected body which has the backing of the mer-
chants regards itself as being in a stronger position, which is an ad-
ditional explanation for the position of the chambers of commerce during
the negotiations over the introduction of value added tax in
The elections we have just described had no sequel, and in a recent
Order, the situation was frozen, and the term of office of the present
chambers of commerce was extended.12

Q. RURAL COUNCIL ELECTIONS

The rural council ranks second in local government in Judea and

Samaria. At the beginning of the ,s’70 there were rural councils in 64
villages, and occording to local law the number of council members
fluctuated between 3 and .12
Very scanty and non-specific statutory provisions were made for
elections for the rural councils. Councils hold office for three
The District Commissioner )farztuM( is authorized to regulate the
holding of elections, subject to the following limitations: a council
member must be a Jordanian citizen over 21 years of age and normally
resident in the village; the District Commissioner must consent to his
appointment. The detailed provisions which we found in the Muni-
cipalities Law concerning the right to vote, the compilation of electoral
rolls, appeals against these rolls, presentation of candidatures, methods
of voting on election day etc. are missing from the Villages Admin-
istration Law.
Order No. ,80 which extended the term of office of the municipal
council, applies to all local authorities, including the rural councils.12?

119 Farchi, loc. cit.

120 Imposed as “additional excise” in the Order Concerning the Law of Excise

on Local Produce (Amendment No. )2 (Judea and Samaria) .oN( ,)658

:1976 001 Pr. & )‫ז‬.4
120a Order Concerning the Term of Office of the Administrative Council of 6
Chamber of Commerce (Judea and Samaria) .oN( ,)697 :1977 Coll. P. & O.
@ ‫ע‬. 2
121 See generally the Villages Administration Law, No. ,5 of 1954 .n( 18 supra).
122 See the definition of a “local authority” in section 1 of the Order. The Order
is called an “Order Concerning the Extension of the Term of Office of the
Executives of the Local Authorities” (and not “Municipal Councils”).
 LOCAL GOVERNMENT 273

The reasons justifying suspension of the municipal council elections

may be invoked with even greater force in relation to the rural councils.
After the municipal elections in March-May 1972 and the cham-
ber of commerce elections in ,197273 came the turn of the rural coun-
cils. Government policy involved two stages: first, elections were held
in three villages which requested them and only afterwards were elec-
tions held in the other villages.
Although the rural council is of much lesser importance than the
municipal council and even the chamber of commerce, the Military
Gevernment saw the need to promote democracy and normalization
there a3 well, especially after the Yom Kippur War in .1973
On 16 Januaty ,1975 the Regional Commander of Judea and Samaria
signed three Oruers under which elections were to be held, according
to Jordanian Law, for the rural councils of Beita (Nablus District),
Ziddah (Tulkarem District) and Dahariyya (Hebron District). These
three villages were chosen because their residents had asked for elec-
tions. The Internal Affairs Officer accordingly fixed election day in the
three villages for 2 February .1975
As we have said, the local law contains no specific election provisions.
It leaves the task to the discretion of the District Commissioner. The
Internal Affairs Officer therefore enacted detailed regulations,!?* in-
cluding provisions for elections to be secret, personal and equal, the
appointment of a Commissioner and an election committee and an
appeals committee responsible for the organizational aspects and rules
for preparing electoral rolls, the appointment of polling station com-
mittees and voting methods. The influence of the Jordanian Munici-
palities Law, discussed above,'*4 is'evident in both the structure and
formulation of these regulations.
The rural elections aroused much interest. A relatively large num-
ber of candidates presented and active campaigning

123 Provisions Concerning Election Procedures for the Rural Council of Beita, of
19 January 1975 (identical provisions were issued in relation to the other
two villages). The preamble states that the source of authority is section 5
)1( )b( of the Village Administration Act. A more detailed formulation
replaced these provisions on 29 January .1975
124 Thus, for example, the right to vote was conferred upon men only, on the
supposition that this was the intention of the legislature which, even in the
towns, allowed only men to vote.
125 There were 26 candidates for the 9 seats in Dahariyya, in Beita, 25 candidates
for 9 seats, and in the small village of Ziddah, 13 people competed for 6 seats.
274 M. DRORI

included home discussion groups, the distribution of propaganda

leaflets and so on. On election day, voting was unhampered and was
supervised by the members of the polling station committees. Voter
participation was high, between %74 and The election re-
sults revealed a trend—most likely influenced by the egalitarian Israeli
democracy—to abandon the clan system prevalent in the past, and
those elected were relatively young, compared to the members of
the outgoing councils. The Military Government did not change the
provision of section 5 )1( )a( of the local Law, according to which
the mukhtars hold office ex officio as elected members of the rural
council.
Following the success of these elections the Military Commander
issued a general Order for elections to be held for rural councils where
the sitting councils had held office for at least three Election
day was left to the discretion of the Commissioner but it had to be
before 12 December .1975 The Commissioner issued regulations speci-
fying the details of election primarily based on the
Municipalities Law but containing a number of innovations, e.g. equal
voting rights, no economic qualification, minimum voting age of ,18
and most important, personal, equal, secret and direct elections. For
the 57 rural councils involved elections were fixed for October-No-
vember 25923 residents were entitled to vote: in the district
of Tulkarem alone, 9900 were eligible.
The elections were lively. The main issues involved local problems,
principally the question of development. Intensive propaganda cam-
paigns were conducted, involving circuiars, pictures of candidates, home
discussion groups, use of loudspeakers etc. The percentage of voters

was high. The most noteworthy general features of the results were
the lower age of those elected, their higher level of education (even
though only a negligible number were university graduates), the reten-
tion of the position of the farmers as representing the dominant occu-

126 Dahariyya — %74 1239( voters out of 1974 eligibles), Beita — %813 482(
out of )593 and Ziddah — %91 201( out of .)221
127 Order Concerning the Holding of Elections for Rural Councils (Judea and
Samaria) .oN( )614 :1975 Coll. P. & O. .J( & S.), p. .1506
128 Provision Concerning Election Procedure for the Rural Councils, ,1975 of
5 September .1975
129 Order Concerning the Holding of Elections for Rural Councils (Election Dates
and Number of Council Members) (Judea and Samaria), ,1975 of 5 September
.1975 This Order also specified the numbers of members in the different villages.
 LOCAL GOVERNMENT 275

pation of those elected and, above all, the appearance of new faces

amongst the successful candidates (only one quarter of the members of

the existing councils were re-elected). The elections took place in
several stages: On 27 October 1975 elections were held for 26 rural
councils, with an %81 voter participation rate; on 29 October 1975 nine
villages held elections with a %7971 participation rate; on 3 November
1975 another nine villages, with a %756 participation rate; and finally

on 5 November 1975 in 7 villages with %799 of eligible voters partici-

pating. In all, elections were actually held in 51 villages: in 6 of them,
an agreed list of candidates was presented. In the 51 villages, 18947
people cast their votes out of a possible 23682 .e.i( .)%80 Four
hundred and twenty members were elected from among 899 candidates.
The fact that elections were held in a total of 60 villages demonstrates
that Israeli democracy has penetrated into the middle and lower
classes of society in Judea and Samaria. The active participation in
the elections, the increasing strength of younger people and the decline
in the position of the traditional leadership apparently reflected the
changes which had taken place.1*°

P. MUNICIPAL ELECTIONS—1976

Four years after the 1972 elections, new municipal council elec-
tions were due. Military Government, in compliance with its legal
duty and in pursuance of its established policy, decided accordingly
that they should be held at the proper time. Apart from being the

130 There was no sequel to the rural council elections, as there was for municipal
elections in .1976 Further elections were suspended by an Order, issued recently
by the Regional Commander. This suspension, like that of the elections for
the chamber of commerce raises the question whether it conforms with the

norms of international law. See the Order Concerning the Terms of Office
of Rural Councils (Judea and Samaria) .oN( ,)742 ,1977 of 9 December .1977
It may, however, be that the time when the Order was made i.e., two months
after Sadat’s visit to Israel and at the beginning of the peace negotiations, may
afford some explanation. Even if we hold that there is a legal obligation to
implement local law and to hold elections on time, it is not an absolute obli-
gation, and if the situation is delicate due to the atmosphere of the peace
negotiations, this might provide some justification for the suspension to avoid
the population being caught up in the turmoil of elections precisely during that
delicate period. Moreover, one can suggest that the Military Government’s
intention was that the election to rural councils as well as to chambers of

commerce will be held after establishing the self-governing-body during the

autonomy regime.
 200 M. DRORI

second series of municipal elections under Israeli military rule, they

were also significant for other reasons which we will discuss.

)a( The Jordanian Municipalities Law of 1955 provides that the
right to vote and to be elected to municipal councils is confined to
men.’*' In anticipation of the 1976 elections, these rights were, towards
the end of ,1975 extended to women. Taking the view that “the matter

was necessary for maintaining orderly government and safeguarding

the rights of the population,” the Commander repealed the restrictive
Jordanian
It may be assumed that the repeal reflects to no small extent the
social changes that have occured in Judea and Samaria in general and
the improvement in the status of women in particular. Under Israeli
administration, women have begun to work outside the home and

many of them have engaged in public activities, largely in women’s

organizations, social welfare, medical services etc. Like the male
population, women have come to understand that they are capable
of playing a part in the political process. There is reason to believe
that the example of the equal rights enjoyed by women in Israel has
had a positive influence. The local population itself turned to the
Military Government with the request to give women the franchise.
Jordan, too, adopted a policy of involving women in the democratic

process: In ,1974 the right to vote for the House of Representatives

was granted to (even though, for unknown reasons, municipal
elections were not included). There is no evidence that the Jordanian
amendment had an effect on the population; nevertheless, it is note-
worthy, especially in view of its proximity in time to the Israeli
amendment.
Whilst it is generally agreed that a military government in occupied
territory is not bound to improve upon existing election law or render
it more democratic, may it, nevertheless, under law take steps towards
that end? The answer depends upon whether the law-making authority

131 Section 12 )1( of the Municipalities Law, and see supra, no. .83 In Jordanian
parliamentary elections as well men alone had the suffrage: section 2 of
the House of Representatives Election Law, No. 24 of ,1960 (Jordanian Official
Gazette, No. ,1494 of 11 June .)1960 This Law was amended in ,1974 as we
shall see.
132 Order Concerning the Municipalities Law no. 29 of 1955 (Amendment No. )9
Judea and Samaria), :1975 Coll. P. & O., p. .54
No. 8 of :1974 Jordanian Official Gazette, No. 2481 of 1 April ,1974

p. .449
 LOCAL GOVERNMENT 277

of the Military Commander is given a literal or restrictive interpretation.

A narrow, literal approach would require the application of local law

as it is, unless prevented in the circumstances, and amendment of the law

would therefore appear to lack validity and be ultra vires. The fact that
the 1972 elections were successfully held without women being enfran-
chised would thus dispose of the argument of orderly government. If,
however, we are guided by the view that “the needs of society change

as time passed and the law must respond to these changing

then beyond all doubt the exposure of the Region for almost a decade
to western culture, in which the status of the woman is equal to that
of the man, has brought about profound social changes. To give the
franchise to women rightly reflects this social change and is responsive
to the needs of local society. Undeniably, the fact that the local popu-
lation had addressed itself to the authorities with respect to the matter
adds weight to the view that amendment of the Law gives effect to

an existing social need.

If the amendment is examined in the light of the criterion proposed
by Dinstein, we must come to the conclusion that it is legally well-
founded, since the State of Israel, as is well known, accords the fran-
chise to both men and women alike, without distinction or discrimi-
nation. No reason can be found for challenging the amendment of the
Jordanian Law. Even if Israel must act only as a trustee of the local
population, the Military Government has by the present step promoted
the political awareness of the population and enabled the other half of
them to participate in democratic life.1**
The amendment of the Law was, in fact, welcomed for the most
part by the population. Women became involved in electoral activity
and some even stood for election. Two-thirds of the women with the
franchise exercised their right to vote.1%*
)b( A second restriction which in the past had reduced the number
of those entitled to vote and to be elected in municipal elections was
the property franchise.'** This provision remained in force during the

133aSussmann J. in Almakadsa case, supra n. ,10 p. .582

1341] may be observed that the advocate of the view that Israel is a -eetsurt‘“
occupant” in the Region suggests that one of Israel’s tasks in Judea and Sa-
maria is to democratize the election laws: A. Gerson,
The Legal Status of Israel’s Presence in the West Bank”, )1973( 14 Harv.
Int. LJ. ,1 pp. .4849
135 Zycher, “Exercise in Democracy”, Jerusalem Post, 30 April .1976
136 Section 12 )3( of the Municipalities Law, and see note 86 supra.
 278 M. DRORI

1976 elections but as a result of the considerable rise in the standard

of living—the gross national product doubled between 1968 and 1975
—its effect was somewhat reduced. Moreover, the Israeli authorities
took the initiative to lessen its impact, albeit indirectly.
On the very same day that women were given the franchise, the
Administration and Services Branch Officer of the Regional Command
issued regulations imposing the duty to pay municipal rates for sani-
tation services,'*’ by virtue of powers conferred by Jordanian law

upon the Council of Ministers to make municipal regulations in respect

of matters generally regulated by the municipalities themselves under
bye-laws. Whilst the declared purpose was a desire facilitate the
financing of services provided by municipalities,” 138 it would seem that
an additional purpose was to increase as far as possible the number
of people paying the minimum tax of one dinar, thereby increasing
the number of electors. Under the new regulations, not only land

owners but also tenants—lessees and sub-lessees (other than those

living in a hotel)—are treated as The rates imposed are
not high, and for ,197576 the relevant years for election purposes,
it was fixed at one-quarter of the land or municipal tax, with a minimum
‫ס‬ 9
Local residents wishing to take part in the elections paid the rates
and other taxes to have their names included in the electoral roll.
Where the amount paid was higher than the required minimum, other
members of the family could be included in the lists by virtue of pay-
ment by the head of the family.

137 Municipal Regulations (Sanitation Services) (Judea and Samaria) .oN( )1941
of 28 December .1976
138 Preamble to the said Regulations. Regarding taxation in the administered
territories, see R. Lapidoth, “The Rules of Public International Law concern-
ing Taxation in Occupied Territories” )1978( 3 Taxation Q. 111 (in Hebrew);
D. Shefi, “Taxation in the Administered Territories”, )1971( I Is. Y. B. p. ;290
M. Hertzberg, “Enactments Concerning Indirect Taxation in the Occupied
Territories”, )1971( 5 Taxation Q. p. .367
139 See the definition of ”renwo“ and ”reipucco“ in reg. 1 of the said Regu-
lations.
140 Reg. .5 The annual rates range between ILA45 (for an apartment of three rooms)
and IL500 (for a cinema or hotel): See reg. .2 The minimum of IL30 was
somewhat more than a dinar (see supra in )86 so that in effect all persons
paying the rate are entitled to vote. Regarding the Regulations as a secondary
means by which to extend the municipal electorate, see Sinai and Pollack,
op. cit., pp. .224225
 LOCAL GOVERNMENT 279

In summary, it is submitted that in point of law, these regulations

are entirely consistent with the principles of international law. Even

complete abolition of the property franchise would have been consistent
with it.
)c( The minimum age for voting is Had the intention been to
introduce by stages a franchise in Judea and Samaria identical to that
in Israel itself, it may well be asked why the minimum age was not set
at 18 as it is in Israel, especially since, in one of the metamorphoses
of Jordanian law, 18 had been prescribed. There are many countries
in which the minimum voting age is 21—or even older—but in Israel
it was fixed at 18 for several reasons, in particular because young
people are required to do military service at the age of .18 This

reason is not relevant in Judea and Samaria, and to leave the minimum
age as it stood under existing Jordanian law is consistent with the
principles of international law.1”
)d( According to section 18 )3( of the Jordanian Municipalities Law,
“an official or an employee of a municipality” may not be a can-
didate for municipal Does ”laiciffo“ here mean a government

or a municipal official?
That the intention was to exclude only municipal officials but not
central government officials is supported by the fact that the word
”laiciffo“ is unqualified by the term ”,tnemnrevog“ and in the context
indicates a municipal official. The idea of preventing conflicts of in-

141 Section 12 of the Law. For Jordanian parliamentary elections, section 3 )a( )1(
of the Elections for the House of Representatives Law, No. 24 of ,1960 provides
for a minimum voting age of .20
142 Possibly, there is another, political reason, for retaining the age of .21 It
is known that Today’s youth in general, and the youth of Judea and Samaria
in particular, are known to be radical, extreme and anti-establishment, es-
pecially between the ages of ,1821 when they have left school, are not yet
married and have not yet found their place in society. Thus, it seems that as
far as the Military Government was concerned, it was preferable to leave the
situation as it was.
143 An official desiring to become a candidate must resign from office 10 days
before the relevant date. A member of the Jordanian Senate or House of
Representatives is expressly prohibited from being a government or municipal
servant under section 76 of the Constitution of Jordan. See section 18 of the
Elections for the House of Representatives Law, No. 24 of ,1960 which
obliges a government or municipal servant who wishes to stand for election
to the House of Representatives to resign from his post 10 days beforehand.
See also sections 6970 of the said Law.
280 M. DRORI

terest—an idea embodied in Israeli legislation as

particular force with regard to municipal employees. Moreover, even
if the true interpretation of ”laiciffo“ is debatable, a restrictive cons-
truction is to be preferred, for otherwise a basic civil right of govern-
Ment servants to stand for municipal election would be infringed.
On the other hand, it may be argued that the word ”ro“ in the
above provision is disjunctive, and therefore does not mean
a municipal official Section 5 )2( of the Law deals with the
appointment of a council for a municipality which has not yet been
set up and uses the term ”laiciffo“ which must mean a government
official. This may lead to the conclusion that here also means

a government official. Examination of the status of government officials

under Jordanian law reveals an intention to make them non-political
figures, and to prohibit them from engaging in additional activities.1*
Thus, they are apparently forbidden to take part in election propa-
ganda, and even if elected, they will be unable to fill any role as muni-
cipal representatives because of the prohibition against engaging in
additional activities. Moreover, a government official could possibly
exploit his position to improve his chances in municipal elections. All
this is sufficient reason to debar a government official from standing
for municipal election.
Since the language of the statutory provision (even in Arabic) is
ambiguous, a circular was issued by the authorities in anticipation of
the 1972 elections, stating that there was nothing to prevent govern-
ment officials from presenting themselves as candidates. In ,1976 how-
ever, government officials were informed by a directive that “after
examining the Law, [the view has been reached that] an official wishing
to submit his candidature for election as a member of a municipal
council must, under section )183 of the Municipalities Law, tender
his resignation from government service.”

144 Section 120 )5( of the Israeli Municipalities Ordinance (New Version); Local
Authorities Law (Limitation of the Right to be Elected), .1964 For the situation
in other countries, see Shafatt and Cohen, op. cit., p. .30
145 Under section 3 of the Order Concerning Interpretation (Area of the West
Bank) .oN( ,)130 ,1967 Coll. P. & O., p. ,272 ”ro“ is disjunctive. This idea
has its origin in the Mandatory Interpretation Ordinance ,irorD( op. cit., p.
,)107 which applied to the Region of Judea and Samaria, constituting part of
Mandatory Palestine.
146 See reg. 82 ,)c( 82 )g( of the Civilian Services Regulations, No. 23 of :1966
Jordanian Official Gazette, No. ,1911 of 30 March ,1966 and see note 3 supra.
 LOCAL GOVERNMENT 281

As a result, seven school teachers (one of whom had already served

as a member of a municipal council) who desired to stand, but without

prejudicing their service as government teachers, petitioned the High
Court of Justice in Israel to set aside the directive, and to allow them
to present themselves as In addition to referring to the
1972 circular, they submitted an opinion of a lawyer, resident in the
Region, with 25 years professional standing and proficient in Arabic,
to the effect that the term ”laiciffo“ in section 18 )3( refers to muni-
cipal officials alone. The High Court was confronted with the difficult
task of deciding between two interpretations of an enactment in Arabic
having effect only in Judea and Samaria.
On reading the Court file, we find that the respondents put in an
affidavit stating the 1976 directive “was not intended to lay down
that government officials were indeed prohibited from presenting their
candidature before resigning and that the Elections Officer [whose
decision can be appealed in the local courts] was the one to decide in
accordance with local law whether a government official was eligible
to stand for election, notwithstanding that he had not resigned; every
government official and any official who presents his candidacy without
resigning will not be treated as being in breach [of the law].” As a
result of this affidavit, the petitioners withdrew their petition and the
State had to pay costs. Those officials who had previously resigned
because of the circular were allowed to return to their previous jobs.
We have mentioned this matter in order to show the reader that
the question reached the highest judicial tribunal in Israel. When no
final decision was reached there, the question was referred back to
the responsible officer in the Region, whose decision could be appealed
in the local courts, as the appropriate and competent tribunals.
Whilst the municipal elections of 1972 were held on two separate
dates, in 1976 the Military Government came to the conclusion that
there was no justification for this separation and that all elections
should take place on the same day throughout the Region. The date
fixed was 12 April .1976 However, because the term of office of muni-
cipal councils is four years, a legal problem arose: a vacuum would be
created in Samaria and Jericho where the term ended on 28 March, and
in Judea where the term ended on 2 May, the new councils could only

1468 H.C, ,14676 Mahmed Ahmed Mishal and others v. Minister of Defence and
others .)dehsilbupnu(
 282 M. DRORI

begin to serve some 20 days after election, during which time there
would be, as it were, two councils for each municipality. Consequently,
a special Order was issued by the Commander.147 For the actual
holding of the elections, there was of course no need for any Order,
for since ,1972 when the electoral laws were unfrozen, local election
law applied in full and that law provides for elections every four years.
But because of the above problem, it was prescribed that all existing
councils should cease to act 14 days after the date of the elections.148
The electoral rolls were compiled in accordance with local law by
various committees, comprising local residents only, set up for that
purpose. Objections came before the local courts and the Israeli autho-
rities did not interfere in any way.
Granting the franchise to women and easing the property franchise
yielded results. A clear tendency to participate in the elections was
manifested: 88341 persons (as against 31747 in )1972 were registered
as electors, including 32997 women.149
In accordance with local law, the Internal Affairs Officer fixed
2931 March 1976 as the dates on which candidates were to be nomi-
nated. For various reasons, however, the period had to be extended
till 1 April, a step which entailed a deviation from and amendment
of the Municipalities Law.150 A similar situation had arisen in the 1972
elections, and as noted above the then departure from the Law could
be justified by the consideration that had the extension not been
made, no elections might have been held. As regards the 1976 elec-
tions, it is harder to find justification and there are several grounds
on which the decision may be criticized. First, in view of the experience

147 Order Concerning the Municipal Elections (Judea and Samaria) .oN( ,)628
;1976 Coll. P. & O. .50 .56
148 Sections 2 )a( and )c( and 3 of Order No. .628 The Order contains two further
provisions: no elections were to be held in Dir Dabuan (Ramallah district),
because they had already taken place in March 1974 (section ;)4 the relevant
date for determining age for inclusion in the electoral rolls was fixed as the
last day on which the rolls were prepared (section 2 ,))b( i.€., a person was
eligible to vote if he had turned 21 by 13 February ,1976
149 Communiqué of the Official Spokesman for the Area. See Sinai and Pollack,
op. cit. p. .225 The Communiqué contains a table dividing eligible voters
according to towns; prominent in this regard are Nablus 19447( eligible
voters) and Hebron .)11244(
150 Order Concerning an Extension of the Time for Presenting Candidacies for
Municipal Elections (Judea and Samaria) .oN( .(644 :1976
.J( & S.), p. ,134
 LOCAL GOVERNMENT 283

gained in ,1972 some arrangement should have been made to avoid

amendment of the Law in the course of the elections themselves. Se-
condly, in ,1972 in view of the threats against candidates in Nablus,
the steps then taken could well have been regarded as necessary for
“public order and good government.” The same was not quite true
in 197615 Thirdly, ad hoe amendment in the heat of elections militates
against the stability of electoral law and creates the impression that
it may equally be amended for other purposes. Notwithstanding this
criticism, it should be emphasized that the question was not crucial
and did not overshadow the main fact that free municipal elections

were conducted for the second time under the Israeli Military Govern-
ment.
The number of candidates for each seat was relatively large: 491
people contested 205 seats. The campaign was of a varied nature: it
included public meetings, newspaper advertisements pledging support,
televised speeches on Israeli television and addresses and posting of
notices and election statements in public places. People visiting the
Region during March and April 1976 witnessed a democratic contest
for the votes of the electors, conducted in a respectful and orderly

manner by the candidates.

Schools were closed to serve as polling The voting per-
centage of %723 was relatively high (although less than in ,1972
when it reached over :)%80 of the 88562 people entitled to vote,
62966 actually voted. The percentage of men voters was somewhat
higher than that of women.'*3 In some towns, owing to the numbers
participating, it was found necessary to extend voting time by one
hour.154 Elections were held in 22 out of 25 towns in the Area. In
two towns, agreed lists were and in one town, elections
had been held in 1974 and were not due to be held until later.

151 There was some unrest before the due, inter alia, to the threats of
the P.L.O. A number of councils and mayors had resigned; there were
demonstrations, some of them accompanied by violence. As a result, the
opinion was expressed in Israel that the elections should be abandoned. However,
the decision to continue with the elections on the due date was upheld.
152 There were 153 polling stations: 96 for men and 57 separate ones for women.
153 Of the 55914 eligible male voters, 40457 )%732( actually voted; whereas
of the 35548 eligible women, 22009 )%676( exercised their right.
154Jn Ramallah, Al-Bira, Tul-Karem, Anabta and Jenin, the time for closing
the polling booths was extended from 8 p.m. to 9 p.m.
155 Silwaad and Bnei Zaid in the Ramallah district.
24 M. DRORI

Analysis of the political result of the elections falls outside the

scope of the present chapter, but it may be noted that the Military
Government, as in ,1972 did not use its powers to nominate either
additional councillors or any of the mayors. It respected the wishes of
the elected councils and appointed as mayors those recommended by
them. The elections were thus given full democratic significance, without

any embellishment of the

The second municipal elections held in the Region under the admin-
istration of the Israeli Military Government were more democratic
than any previous elections by enabling larger numbers to exercise
the suffrage. They provided further evidence of the normalization and
liberalization pursued by the Military Government.'*’

Q. CONCLUSIONS
We have attempted to review and analyse the structure, role, powers
and standing of the local authorities (municipal corporations and
rural councils) and the chambers of commerce in Judea and Samaria,
in the sequel of the special situation obtaining since the Six Days’
War and with specific reference to the various elections held in the
last seven years.
The holding of such elections was entirely consistent with the prin-
ciples of international law and with all the widely-held views con-
cerning the status of Judea and Samaria. Furthermore, the improve-
ments made to the election law, such as granting women the vote and
lessening the impact of the property qualification, are in accordance
with legal principles, even though, on some approaches, it is not in-
cumbent upon a military government to amend the law with a view
to making it more democratic.
The democratic experience gained in the various elections con-
sidered here has undoubtedly contributed to the political awareness of
the population and their desire to participate in future elections for
both the proposed autonomous institutions and the institutions of local
government examined here.

156 See also Sinai and Pollack, op. cit., p. ,225 who stress that the Military Govern-
ment did so even though it knew that the new mayors would be hostile ta
the Israeli authorities and would in future speak out against the existence
of the State of Israel. ,deednI( this fear was justified and some of the mayors
made statements in the spirit of P.L.O. propaganda).
7 Cf. Y.A. Zur in )1976( 30 HaPraklit, pp. ,536 .540
 CHAPTER VIII

THE REPORTS OF THE U.N. SPECIAL COMMITTEES

ON ISRAELI PRACTICES IN THE TERRITORIES

A SURVEY AND EVALUATION

Dov Shefi*

A. INTRODUCTION

In his article “Human Rights in the United Nations—Theory and

Practice”, published in September 19701 Haim Cohn, Justice of the
Supreme Court, wrote:

“Tt seems to me that the professional, ideological and political

exponents of human rights may be divided into four categories.
On the one extreme, there are those optimists who have perfect
faith in the U.N., in its power and its future, and view the various
ratifications of treaties dealing with human rights and the ap-
pointment of a U.N. High Commissioner for Human Rights etc.

as a means, within the framework of the U.N., of embarking

upon the correct, and the only possible, path towards the achieve-
ment of the desired goal. On the other extreme there are the
pessimists. They have reached a point beyond even total frustra-
tion, because for them, the U.N. has already proved, eternally
and irrevocably, its helplessness; and if the U.N. is helpless—to
whom may one turn? In the middle stand those who are not yet
ready to surrender... If salvation and succour are not forth-
coming from the U.N., they may be sought elsewhere; one can

arouse national and international opinion, the pressure of which

no government can withstand. For that purpose, it is necessary

* Brigadier-General, Military Advocate General of the LD.F.

The views expressed in this article are the author’s and do not necessarily re-
present those of Israeli Official Authorities.
1 Haim Cohn, “Human Rights in the United Nations” )1970( Gesher—A Quar-
terly on Questions of the National Life (World Jewish Congress), .65
286 D. SHEFI

to hammer home the issue of human rights, and to warn, as

loudly as possible and at every opportunity, against violation, for
through education a person is driven to action-—and no person

may ever desist from this task. There is also a fourth category:
those who sing the praises of human rights, but in whose hands
it is a double-edged sword; those who claim and appear to be
fighters for human rights, and in fact they deny human rights in
their own households; those to whom the gap between the theory
and the practice of human rights is daily bread...
As a general rule, every state which preaches human rights
prides itself for its own careful, unequalled preservation of all
human rights; moreover, every state is prepared to say that other
states whose goodwill it is seeking, whether as allies or members
of a bloc, and even its puppets, are all virtuous by their very
nature and preserve the laws pedantically; and if there are states
who violate human rights and prevent these rights from prevail-
ing the world over, of course those are hostile states or members
of a different bloc. To hear the debates in the U.N., one would
think that preservation or violation of human rights is considered
to be one of the unmistakable signs of affiliation with this or the
other bloc of states; states find themselves as either the staunch
defenders of human rights or the unrelenting violators of them
according to their affiliation at the particular time of debate—and
the verdict is unaffected by the actual measures taken in practice.
(Needless to say, Israel, which belongs to none of the blocs, al-

ways finds itself the loser on all fronts.)

It is the politicization of human rights which, in my opinion,
underlies the tragedy. One may not be able to prevent states—

even those that are most humane—from bowing to political

considerations ,hcihw( of all the negative considerations, is the
most legitimate, and therefore the most difficult to subdue or
ignore), and from using human rights as a weapon for attacking
opponents; and if the most democratic states act thus, how much
more so do those that are totalitarian. Consequently, even the
Human Rights Commission of the U.N., which was created to
protect human rights, has ceased to insist on unquestioning pre-
servation of these rights: if that body, and similar bodies, still
claim such insistence, these are mere words. Instead of constitut-
ing a goal and a destiny, human rights has begun to be used as
 REPORTS OF U.N. SPECIAL COMMITTEES 287

a Means, as a weapon in the struggle to achieve political ends.

No longer are human rights considered as an elevated purpose
in their own right: instead, they have become a practical tool,
the hour and place for use of which are determined by practical
expediency in the interminable inter-bloc warfare. The states do
not care—why should they be fettered by human rights? All that
concerns them is that there should be a wide area called ‘human
rights’, containing many possibilities for striking the opponent in
the name of worthy causes, in order to provoke and to shame
him. Pure, unquestioning awareness of human rights for their

own sake has disappeared from the horizon: all the resources
are devoted to the political

Cohn J. has admirably summarized the pitiful position to which

the international community has sunk in its attempt to turn the U.N.,

a political organization of the first rank, into an instrument presuming

to investigate, to determine fact and to pass judgment in a seemingly
objective manner.
The U.N. and its organs are of necessity influenced by the incessant
struggle to attain political ends with respect to states whose conduct
in the field of human rights is being investigated.
Since 1967 the State of Israel has served as a target of such investiga-
tion regarding its treatment of the inhabitants of the Administered
Territories.

B:--THE UN. RESOLUTION CONCERNING THE DISCOVERY

OF NEW WAYS IN WHICH TO INVESTIGATE HUMAN
RIGHTS

.1 The Working Group Appointed by the U.N. Commission

In ,1966 the General Assembly of the U.N. decided that new ways
must be found for preventing states from violating human
Subsequently, a panel of experts was appointed to investigate human
rights in South Africa.
This precedent led to the appointment in 1969 of another investigat-
ing committee in the form of a special working group by resolution
of the Commission for Human charged with the task of

.A.G2 Res. 2144 )IXX( of 26 October .1966

3 Res. no. 6 )VXX( of the Commission for Human Rights, on 4 March .1969 See
288 D. SHEFI

investigating accusations against the Israeli authorities that their treat-

ment of the inhabitants of the Administered Territories “violated the

provisions of the 4th Geneva Convention of 1949 dealing with the
Protection of Civilians in times of war”; obtaining documents and
hearing testimony and to this end taking any necessary steps or fol-
lowing any procedure it deems appropriate; and presenting a report
to the Human Rights Commission at its 26th session.*
This special working group of experts (hereinafter referred to as
“the SWG”) comprised the following members:

Mr. Ibrahim Boye, representative of Senegal to the U.N. — chair-

man;
Mr. Felix Ermacora, Professor of Public Law at the University
.of Vienna, Austria.
Mr. Branimir Jancovic, Professor of International Law at the
University of Belgrade, Yugoslavia;
Mr. Nagonora N. Yha, First Secretary of the Indian Delegation
to the U.N.;
Mr. Louis Marchand Stens, Professor of International Law anda
delegate of Peru to the
Mr. Waldo Emerson Waldron-Ramsey, lawyer and economist,
advisor to the Tanzanian delegation to the U.N.

The SWG approached the representatives of Jordan, Israel, Lebanon,

Syria, Kuwait, Iraq and Egypt drawing their attention to the estab-
lishment of the group and its mission, and requesting their co-opera-
tion and the supply of written information, including addresses of
witnesses. A glance at the list of members of the SWG and the states
from which they were drawn at once gave rise to the problem of its
objectivity. Whilst the Arab countries concerned responded positively,
Israel expressed opposition to the work of the SWG, the composition of
which it regarded as unbalanced and anti-Israeli. Israel also pointed
out that in spite of an Israeli request, the SWG was not charged with
investigating the situation of the Jews in Arab countries.®

also: Shefi, “The Protection of Human Rights in Areas Administered by Israel:

United Nations Finding and Reality” )1973( 3 Israel Yearbook on Human Rights,
.337
4 .N.U( Doc.) E/CN/4/1016 ,)1970( p. .4
5 ,1011 .6
 REPORTS OF U.N. SPECIAL COMMITTEES 289

.2 The Special Committee of Investigation Set Up by Virtue of a

Resolution of the General Assembly
The 23rd General Assembly decided .seR( No. ,)2443 on 19 Decem-
ber ,1968 in its 1748th session, to set up a special Committee of In-
vestigation (hereinafter referred to as “the comprising three
members, for the purpose of investigating the conduct of the Israeli
authorities with respect to the human rights of the population in the
Administered Territories. The resolution was adopted by a majority
of ,6123 with 36 abstentions. Amongst those who abstained were
Argentina, Austria, Belgium, Brazil, Canada, the Scandinavian coun-
tries, France, Italy and England. Those who opposed the resolution
included Australia, Bolivia, the U.S.A., some of the South American
states, six African states and Israel. The General Assembly asked its
President to appoint the Committee and called upon Israel to co-
operate with the committee, and help it in carrying out its task. The
Assembly charged the SCI with reporting its findings to the Secretary-
General at the earliest possible opportunity. The Secretary-General

was requested to assist the SCI by all necessary means.®

The President of the 23rd General Assembly (the Guatamalan re-
presentative), however, passed away on 17 April ,1969 before man-
aging to appoint the SCI. A legal problem thus arose from the lack
of an authority competent to appoint the SCI in accordance with the
Resolution. The standing orders of the General Assembly contained

no guidelines for solving the problem. In order to overcome the dif-

ficulty and implement the Resolution, the Secretary-General circulated

a memorandum to all member states, indicating that in the circum-

stances it was possible either to convene a special session of the
General Assembly to decide upon a different method of appointing
the SCI, or to find a procedure which would make it possible to
authorize one of the Deputy-Presidents of the General Assembly to
appoint or alternatively ask the Guatamalan Government who would
lead its delegation to the 24th session of the UN and take upon
himself the task of appointment. A large majority of states was in
favour of the SCI being appointed by one of the Deputy-Presidents
and at a meeting of the Deputy-Presidents of the 23rd session, held

on 23 January ,1969 the head of the Peruvian delegation, Dr. Luis

Alvarado, was authorized to appoint the members of the SCI.”

6 U.N. Doc. A/8089 ,)1970( p. ,8 para. .1

T U.N. Doc. A/8089 ,)1970( Appendix no. .2
 290 D. SHEFI

Eventually the SCI was so appointed on 12 September ,1969 com-

posed of representatives of Ceylon, Somalia and Yugoslavia—three
States having no diplomatic relations with Israel because of their pro-
Arab and anti-Israel orientation and one )ailamoS( going even further
and claiming that a state of war existed between itself and Israel. In
April ,1974 Somalia announced its resignation from the SCI and the
President of the 28th session of the General Assembly decided to
appoint a Senegalian representative instead. Senegal, too, had severed
diplomatic relations with Israel back in .1973
The Israeli Government objected to the procedure proposed by the
Secretary-General. In a memorandum dated 19 June ,1969
pointed out that the Secretary-General was not authorized to conveiic

a meeting of ”stnediserP-ytupeD“ and that there was no authority to

act upon a resolution or recommendation of such an unrecognized
Nevertheless the Secretary-General informed the Israeli Gov-
ernment on 12 November 1970 of the establishment of the SCI and
requested its cooperation. On 6 January ,1971 the Israeli Ambassador
to the U.N. informed the Secretary-General that his Government would
not cooperate. A number of reasons were given. First, the SCI had
been appointed by an illegal procedure; secondly, its members were
hostile to and biassed against Israel; thirdly, Israel had requested that
the Committee also investigate the situation of the Jews in Arab lands®
and this request had not been acceded to.
Like the SWG appointed by the U.N. Commission for Human
Rights, the SCI conducted its investigations outside the borders of
the Its members visited the neighbouring countries, and
heard evidence from witnesses who had been expelled from the Ter-
ritories or had fled after having carried out terrorist activities there.
Representatives of Arab governments presented their accusations. In
the later years, the SCI claimed that most of its findings were based

on Israeli newspapers, but it appears that it never considered any

orders or article describing the situation of the population of the
Territories in a positive manner.
Throughout the years, the SCI acted as if it had been appointed
solely to search for violations of human rights, but not generally to
investigate the needs and practices of the Israeli authorities in their

8 U.N. Doc. A/7495 ,)1970( Appendix no. .3

9 See U.N. Doc. A/8089 )1970( at p. .12
 REPORTS OF U.N. SPECIAL COMMITTEES 291

treatment of the population. In this way, the SCI gave a dubious and
obviously partial interpretation to the task for which it had been
appointed.
The SCI presented yearly reports,’° all of which contain untruths
and distortions, and all arriving at conclusions falling within the
bounds of what it defined as violations of human rights. The first
report was presented to the Secretary-General on 26 October ",1970
and was circulated amongst the members of the 25th General As-
sembly. Subsequent to this report, the Assembly adopted a resolution
censuring the Israeli authorities for their conduct in the Territories.
Moreover, the SCI’s proposal that it be charged with returning to the
Middle East should the need arise was also adopted.”
This phenomenon was repeated year after year in the General As-
sembly. In no report of the SCI was even one good word said about
the conduct of the Israeli authorities towards the inhabitants of the
Territories in any respect whatsoever.
Patent evidence of the hostile and biassed approach of the SCI may
be found in the Appendix to the 1976 This Appendix, con-
taining a list of literature and documents used by the SCI, shows that
most of the material which reached the Committee was put out by
inveterate enemies of Israel. In fact, there are many sources in which
positive views about what is being done in the Territories are ex-
pressed, but nearly none of these appear in the Appendix. In other
words, the SCI was not prepared to consider any material, even though
readily available, which indicated the positive achievements in the
Territories under Israeli rule.

C. THE MAIN TOPICS OF DISCUSSION OF THE SCI, 19701977

The main topics discussed by the SCI concern the following:

a. The validity of the Defence )ycnegremE( Regulations, 194514

b. Prevention of the return of residents who had fled the Territories

as a consequence of

10 U.N. Doc. A/8089 ;)1970( U.N. Doc. A/8389 ;)1971( U.N. Doc. A/8828 ;)1972(
U.N. Doc. A/9148 ;)1973( U.N. Doc. A/9817 ;)1974( U.N. Doc. A/10272
;)1975( U.N. Doc. A/31/218 ;)1976( U.N. Doc. A/32/284 .)1977(
.N.U11 Doc. A/8089 .)1970(
12 Jbid., p. ,65 para. .156
.N.U13 Doc. A/31/218 Annex I ,)1976( p. .8
.N.U14 Doc. A/8089, paras. 5760 .)1970(
.N.U15 Doc. A/8089, paras. 6170 ;)1970( U.N. Doc. A/8389 Add. ,1 paras. 1722
292 D. SHEFI

Deportation Orders.”
Destruction of buildings.’’
Collective and communal punishment.*®

mo
ae
rR Mass
Administrative arrest and curfew.’®

Prolonged pre-trial detention.?*

Prison conditions.”
Torture of prisoners and 7
Torture of civilians.**
Annexation and Jewish

. Expropriation of property.”
Plunder.”’
Exploitation of the resources of the

16 U.N.
;)1971( Doc.U.N.A/8089,
Doc. paras.
A.8828, 7577
paras.;)1970(
5761 U.N. Doc.
.)1972( A/8389, paras. 4451 ;)1971(
U.N. Doc. A/8828, paras. ,3945 ,51 56 ;)1972( U.N. Doc. A/9817, paras.
125129 .)1974(
.N.U17 Doc. A/8089, paras. 123131 ;)1970( U.N. Doc. A/8389, paras. 5258 .)1971(
.N.U18 Doc. A/8089, paras. 7174 .)1970(
.N.U19 Doc. A/8389, para. 68 ;)1971( U.N. Doc. A/9817, paras. 118124 ;)1974(
U.N. Doc. A/31/128, paras. 8892 .)1976(
.N.U20 Doc. A/9817, paras. 81107 .)1974(
.N.U21 Doc. A/9149, para 92 .)1975(
.N.U22 Doc. A/9148, paras. 9394 ;)1973( U.N. Doc. A/9817, paras. 108117
;)1974( U.N. Doc. A/31/218, paras. 107136 ;)1976( U.N. Doc. A/32/284,

paras. 227241 .)1977(

.N.U23 Doc. A/8089, paras. 78111 ;)1970( U.N. Doc. A/8389, paras. ,5967
;)1971( U.N. Doc. A/8389 Add. ,1 paras. 2330 ;)1971( U.N. Doc. A/8828,

paras. 6253 ;)1972( U.N. Doc. A/9148, paras. 8894 ;)1973( U.N. Doc. A/10272,
paras. 163166 ;)1975( U.N. Doc. A/31/218, paras. 76136 ;)1976( U.N. Doc.
A/32/284, paras. 227241 .)1977(
.N.U24 Doc. A/8089, paras. 111122 ;)1970( U.N. Doc. A/31/218, paras. 342352
;)1976( U.N. Doc. A/32/284, paras. 87226 .)1977(
Doc. A/8389, paras. 4448 ;)1971( U.N. Doc. A/8389 Add. ,1 paras. 1116
;)1971( U.N. Doc. A/8828, paras. 2638 ;)1972( U.N. Doc. A/9148, paras.
4087 ;)1973( U.N. Doc. A/9817, paras. 3764 ;)1974( U.N. Doc.
paras. 30102 ;)1975( U.N. Doc. A/31/218, paras. 2575 ;)1976( U.N. Doc.
A/32/284, paras. 8286 .)1977(
.N.U26 Doc. A/8089, paras. 123131 ;)1970( U.N. Doc. A/8828, paras. 3945
;)1972( U.N. Doc. A/9148, paras. ,1620 7987 .)1973(
.N.U27 Doc. A/8089, paras. 132134 .)1970(
.N.U28 Doc. A/9148, paras. 100106 ;)1973( U.N. Doc. A/9817, paras. 130133
.)1974(
 REPORTS OF U.N. SPECIAL COMMITTEES 293

p- Interference in religious life.

q. Criticism of the legal system.*°
r. Destruction of Qunaitra.*4
s. Prolonged occupation in itself as a violation of human rights.*?

We will not presume here to discuss all the findings and conclusions
of the U.N. authorities; rather, we will examine only the work pat-
terns of the SCI and the SWG and attempt to determine the reliability,
and examine the legal aspects of the reports submitted by these bodies.
Our method will be to look, with respect to certain matters, at the
difference between their so-called findings and conclusions and the
actual practices of the Israeli authorities concerning the population
of the Territories.

D. THE RED CROSS AND THE SCI

Before discussing the findings of the U.N. bodies, it is appropriate

to consider first the attitude of the International Committee of the
Red Cross to the SCI when the latter began its work. It is
important to do so, for the ICRC has since its foundation in the
second half of the nineteenth century, been a main contributor to the
crystallization and unification of the norms of behaviour applicable
to states and to members of armed forces in times of war. Moreover,
inscribed on its banner is the principle of rendering aid to victims of

war without discrimination and irrespective of the political aspects

of any dispute.
It cannot be denied that the relations of the world powers and the
formation of political blocs have left their mark on the decisions taken
at the international conferences of the Red Cross, but the International
Committee has made a great effort to shake off any attempts made
to force it into the position of a party to a conflict. For example,
amongst the many witnesses who testified before the SCI in its first

.N.U29 Doc. A/9148, paras. 107123 ;)1973( U.N. Doc. A/10272, paras. 160162
.)1975(
.N.U30 Doc. A/8089, paras. 142144 ;)1970( U.N. Doc. A/31/218, paras. 76136
.)1976(
.N.U31 Doc. A/9817, paras. 134158 ;)1974( U.N. Doc. A/10272, paras. 167171
;)1975( U.N. Doc. A/31/218, paras. 316320 ;)1976( U.N. Doc. A/32/284,
paras. 242244 .)1977(
.N.U32 Doc. A/10272, paras. 103136 ;)1975( U.N. Doc. A/31/218, paras. ,137315
353361 .)1976(
294 D. SHEFI

year of work, was one of the directors of the ICRC, Mr. Claude
Pilloud. When he appeared before the SCI on 2 May ,1970 he pro-
tested that his observations had not been reported accurately in a

press release by the SCI and did not properly reflect his actual test-
imony or its meaning. For example, Mr. Pilloud pointed out that when
he testified about visits to prisoners and about the problem of inter-
preters, his words were general and did not refer especially to Israel.
He also drew attention to inaccuracies in that it was reported that the
visits of the Red Cross representatives to the prisons were conducted
in the presence of witnesses. Mr. Pilloud expressed his displeasure to
the SCI, and added that he had not been consulted on the formulation
of the press release. He urged the SCI to correct a number of inac-
curacies, in order to dispel the wrong impression arising therefrom.**
In the second report submitted by the SCI, on 10 October
the reticence of the Red Cross based on its previous experience be-

came conspicuous in the abundant correspondence between the SCI

and the Red The Red Cross was prepared to agree only to

an “unofficial exchange of views”, but not to giving imformation—

which the Red Cross Committee rejected outright. Further attempts
by the SCI to obtain prejudicial material from the Red Cross for
submission in the third report of 9 October ,1972 suffered a similar
It seems that in this way the Red Cross was endeavouring to

preserve the principle of its independence in order to enable it to

work for the benefit of victims of war in the region, as it is obliged
to do under its constitution and according to its principles.

E. THE VALIDITY OF THE DEFENCE )YCNEGREME(

REGULATIONS, 19457

The SCI dealt with this topic in the body of its first report it sub-

as well as in Appendix 5 to the Report.*® The SCI pointed

33 See Press Release of the SCI No. 515 of 4 May .1970

.N.U34 Doc. A/8389 .)1971(
35 .7014, p. .4
Doc. A/8828 ,)1972( p. .13
37 Published in the Official Gazette of the Mandatory Government, No. 1442 of
.2791945 These Regulations came into force in 1945 in Palestine and they
constitute law in Israel, in the Gaza Strip and in Judea and Samaria.
Doc. A/8089 ,)1970( p. .30
39 Appendix 5 to the Report of the SCI including detailed answers from the govern-
ments of Syria, Jordan, Kuwait, Iraq and Egypt to questions posed to them.
 REPORTS OF U.N. SPECIAL COMMITTEES 295

out, in a tone of censure, that the Israeli Government carries out ex-
treme actions in the Administered Territories on the basis of these
Regulations, adding that insofar as the West Bank is concerned the
stance of the Jordanian Government is that these Regulations are not
in force for a number of reasons, which we shall elaborate below. It
must be stressed that the question of the validity of these Regulations
as a part of the local law is a very important one, since the Military
Government has had recourse to them in order to take a number of
security measures which have been criticized by the SCI. Before
discussing the reasons behind the Jordanian Government’s position
that these Regulations are invalid, we will briefly review the source
and background of the enactment of the Regulations in Palestine
which, in ,1945 included both what is currently known as the State
of Israel and Judea, Samaria and the Gaza Strip.
The Defence )ycnegremE( Regulations were enacted in ,1945 on
the termination of World War Two, by the British Mandatory Gov-
ernment, represented by the High Commissioner by virtue of his
authority under sec. 6 of the Palestine Order in Council ,)ecnefeD(
,1937 in order to safeguard public security, the defence of Palestine,
the preservation of public order and the suppression of uprisings,
rebellion and disturbance, and in order to ensure the supply of vital
goods and services to the public. The said Order in Council confers
detailed powers to set out in regulations provisions concerning ad-
ministrative arrest, expropriation of property, carrying out work on
the land, including demolition, permission to enter and search houses
and the establishment of military courts empowered to judge civilians
who violate the Regulations.
In order to emphasise the special nature of these Regulations as
opposed to other laws, mention should be made of a number of
specific provisions which confer wide legal and administrative powers

on the defence authorities. The military judicial system is competent

to sit in judgment on civilians. Reg. 58 provides for the imposition
of the death penalty for offences involving firearms and explosives,
for carrying a firearm or explosive material without permission and
for belonging to a group of which one or more members has com-
mitted one of the foregoing offences. Incidentally, in two or three

cases, the military court did indeed impose the death penalty under
Reg. ,58 but the sentence in each case was commuted to life imprison-
ment by the Appeal Court or by the ratifying body. Powers of arrest
296 D. SHEFI

and search are conferred upon soldiers as well as policemen .sgeR(

,72 ,75 .)76 Part 8 of the Regulations .sgeR( )86100 serves as the
legal basis for the institution of military-security censorship. The Mili-
tary Commander is given the power to order that a person’s move-
ments be restricted, that his residence be placed under police sur-
veillance, that administrative arrests be made .sgeR( ,)109111 that
land be expropriated when there are grounds to suspect that shots

were fired therefrom, and that such property be destroyed .geR( ,)119
that curfew be imposed, that any region be closed and entry into and
exit be by license only, that businesses closed due to organized strikes
be opened or kept closed .geR( .)129
The Jordanian Government gave two main reasons for considering
these Regulations to be devoid of force: The Regulations were re-
scinded by the Jordanian Government impliedly with the application
of the Jordanian Defence Regulations, ,1935 to the West Bank on
16 May .1948 The State of Israel, as an occupying power, has no
right to apply this type of regulations.
The following may be said with respect to the alleged invalidity of
the Defence )ycnegremE( Regulations, :1945
On 13 April ,1948 two days before the termination of the Mandate
for Palestine, a law was passed in Trans-Jordan (which at that time
did not include Judea and Samaria—these were annexed only in 1950
in consequence of their conquest) entitled “Supplement to the Trans-
Jordan Defence Law, .”1935 The Law stated that the provisions of
the Trans-Jordan Defence Law, and all regulations enacted or to be
enacted by virtue thereof, would apply to every country and place in
which the Jordanian Arab Army was present or in which it was res-
ponsible for security and peace. The Law further provided that the

powers it conferred on the Prime Minister could be exercised by any

person appointed by him for that purpose. Every privilege or im-
munity granted to the British forces or to Mandatory officials by the
Trans-Jordan Defence Law, or in regulations enacted by virtue thereof,

were declared null and void. The Law came into force on 15 May
1948 and three days later, General Ibrahim Fakhar Hashem was ap-
pointed General Military Governor of all the territories then held by
the Jordanian army. On 24 May ,1948 Gen. Hashem published -orP“
clamation No. ”1 in which he announced his appointment and on the

very same day, “Proclamation No. ”2 decreeing that “all the laws
and regulations that were in force in Palestine at the time of the
 REPORTS OF U.N. SPECIAL COMMITTEES 297

termination of the Mandate, on ,15548 will remain in force in all

the areas presently held by the Jordanian Arab Legion, or in which
these forces are responsible for Arab-Jordanian security, with the
exception of laws and regulations which are incompatible with the
provisions of the Trans-Jordan Defence Law, ,1935 or regulations and
orders by virtue thereof”. ,
On 1 December ,1949 the Law for the Amendment of Adminis-
trative Arrangements in Palestine came into effect, providing that “all
the laws and the regulations and orders promulgated by virtue thereof,
which remained in force upon the termination of the Mandate for
Palestine, will remain in force until repealed or amended”, and adding
that “all the laws, regulations, orders and other legislative acts of the
King, the Military Governor or the General Administrative Governor
will be considered as if they were, and still are, On 16 Sep-
tember ,1950 the Law Concerning Laws and Regulations Effective on
Both Banks of the Hashemite Kingdom of Jordan declared that the
laws and regulations on each of the two banks of the Jordan River
would remain in force until such time as uniform, comprehensive laws
would be approved by the National Council and ratified by His
Majesty, for both Banks.
On 7 June ,1967 Major-General Herzog, the Commander of the
Israel Defence Forces in the Area of Judea and Samaria, published

a Decree to the effect that “the law which was in force in the Area
at the time will remain in force, insofar as it is not incompatible with
this Decree or order which I shall make, and with the changes neces-
sitated by the establishment of tke government of the Area by the
Israel Defence Forces”.
Very gradually, local lawyers in the Area of Judea and Samaria
began to claim that the regulations dealing with the possession of
firearms and explosives were not valid in the Area, having been
implicitly repealed by the Firearms and Weapons Law and the Ex-
plosive Substances Law, each of which declares that it repeals
Jordanian or other Palestinian legislative act in force before this Law

came into force insofar as such legislation contains provisions incom-

patible with the provisions of this Law” (emphasis added). The claim

was not particularly serious, both because there were no substantial

contradictions between the said legislation and the abovementioned

Doc. A/8089 ,)1970( p. .31

 298 D. SHEFI

Regulations, and because of the principle of interpretation according

to which emergency legislation—unlike other legislation—is not re-

pealed impliedly by later ordinary legislative acts.*
The allegation that the Regulations were implicitly repealed by
Jordanian laws has not yet been advanced but application of the
Regulations for the purpose of administrative measures gave rise to
the further claim that Gen. Hashem’s second Proclamation, prescrib-
ing the continuity of laws west of Jordan has repealed the Mandatory

emergency regulations. However, there is no dispute that there was

no explicit Jordanian legislative act either in Jordanian municipal law
or in the Orders of the Military Governor who ruled in the West Bank
from 1948 to ,1950 which repealed the Defence Regulations. There
is no contradiction between the provisions of the Trans-Jordan Defence
Law and the regulations made thereunder on the one hand and the
Defence )ycnegremE( Regulations, ,1945 on the other. For this reason
alone, there is nothing in Gen. Hashem’s Proclamation that could
involve the repeal of the latter. The terms of the legislative acts give no
hint of implied repeal. Moreover, later legislation does not necessarily
repeal earlier legislation on the same matter when the two are con-
sistent and do not stand in opposition to each other.”
As for the second claim that an occupying power has no right to
apply the Regulations we may say that from the moment that the
argument that the Regulations were repealed is dismissed they con-
tinue to constitute part of the local law, which the Israeli Military
Government may have recourse to and implement by virtue of art. 64
of the Fourth Geneva Convention, according to which the penal law
of the occupied territory shall remain in force.

41 Cf. Coll. P. & O. Judea and Samaria, p. .272

Yuval Leon v. Gubernik )1948( 1 P.D. .58 In this acse, counsel for the
petitioner argued that the Defence Regulations were implicitly repealed in Israel
in view of the fact that they are incompatible with the changes emanating from
the establishment of the State and its organs. The High Court of Justice replied
thus:
“This argument is quite unreasonable. It would require that this Court first
determine that the establishment of the State has brought about same change
and the nature of the change, and then consider whether this change requires
that a particular law be invalidated.
...It is precisely this, however, which is the duty of the legislature; and it
is not to be assumed for a moment that the Israeli to
delegate part of its duties to the courts”.
And see H.C. ,13052 )1952( 6 P.D. .395
 REPORTS OF U.N. SPECIAL COMMITTEES 299

The question of the validity of the Defence )ycnegremE(

Regulations, ,1945 came up before the Israeli Supreme Court sitting

as a High Court of Justice in a petition for an order nisi in Riyadh

Abd Rashid Abu Awad vy. The Area Commander for Judea and Sa-
maria, P.D. )333 .309 The petition turned on a deportation order made
against the petitioner, a resident of Bir Zayit, under reg. )1121 of
the Defence )ycnegremE( Regulations, .1945 The High Court of
Justice, after analysing Jordanian legislation, ruled that with the
Jordanian conquest of the West Bank in ,1948 the Defence -remE(
gency) Regulations, ,1945 remained in force, as a part of Jordanian
law.

F. PREVENTING THE RETURN OF RESIDENTS WHO FLED

THE TERRITORIES BECAUSE OF HOSTILITIES

The SCI discussed this matter several times in its reports, particularly
those of ,1970 1971 and .1972 It should be noted that the SCI
totally disregarded the fact that the territories in question are oc-
cupied territories, with respect to which no discussion of a peace
treaty has yet commenced, and that Israel is surrounded on all sides
by 100 million hostile Arabs and by terrorist organizations whose aim
is the destruction of the State of Israel. The SCI also disregarded
the fact that even according to the Fourth Geneva Convention an
occupying power is under no obligation to return all residents who
have fled as long as a state of belligerency continues. An examination
of the Convention reveals that the occupying power is obliged to
allow people to leave the occupied zone. Never was the possibility
envisaged that residents of an occupied zone who had fied in fear
would battle for the right to return, in spite of the fact that the area

was still under occupation.

Incidentally, the SCI did not consider the implications of this -ca“
cusation”, i.e., that the desire of thousands of residents, who fled for
fear of the occupiers, to return voluntarily belies indeed the accusa-
tions of persecution, torture and violations of human rights at the
hands of the Israelis.
It should be added that Israel has in face allowed approximately
70000 refugees to return to the territories within the framework of

43 U.N. Doc. A/8089 )1970( paras. ;6170 U.N. Doc. A/8389 )1971( paras. ;1722
U.N. Doc. A/8828 )1972( paras. .5761
 REPORTS OF U.N. SPECIAL COMMITTEES 301

reason to suspect that any firearm has been illegally

discharged, or any bomb, grenade or explosive or
incendiary article illegally thrown or of any house,
structure or land situated in any area, town, village,
quarter or street the inhabitants or some of the inha-
bitants of which he is satisfied have committed, or
attempted to commit, or abetted the commission of,

or been accessories after the fact to the commission

of, any offence against these Regulations involving
violence or intimidation or any Military Court of-
fence; and when any house, structure or land is for-
feited as aforesaid, the Military Commander may des-
troy the house or the structure or anything growing
on the

Houses are demolished under express power conferred by local

law on the Military Commander of the Area and applied by the
British Mandatory Government as well as the Jordanian Govern-
ment. No such action is taken unless the express preliminary con-
ditions are fulfilled, i.c., there must be a direct connection between
the building and terrorist or other violent activities. The action taken
is a sanction against the offending individual for his attack on securi-
ty, rather than a collective punishment. It is a military-security step
permissible in certain circumstances under art. 53 of the Geneva Con-
vention, which provides that:

“Any destruction by the Occupying Power of real or personal

property belonging individually or collectively to private persons,
or to the State, or to other authorities, or to social or co-operative
organization is prohibited except where such destruction is ren-
dered absolutely necessary by military operations’. (emphasis
added)

In his authoritative commentary on the Geneva Convention ,)1958(

Jean Pictet observes with respect to the reservation to art. 53 (at

p. )302 that:
“The prohibition of destruction of property situated in occupied
territory is subject to an important reservation: it does not apply

power to demolish houses lies today in the hands of the Regional Comman-
ders of the Territories under Proclamation No. .2
 302 D.

in case ‘where such destruction is rendered absolutely necessary

by military operations’. The occupying forces may therefore
undertake the total or partial destruction of certain private or
public property in the occupied territory when imperative mili-
tary requirements so demand.
Furthermore, it will be for the Occupying Power to judge the
importance of such military requirements. It is therefore to be
feared that bad faith in the application of the reservation may
render the proposed safeguard valueless; for unscrupulous -16

course to the clause concerning military necessity would allow

the Occupying Power to circumvent the prohibition set forth in
the Convention. The Occupying Power must therefore try to
interpret the clause in a reasonable manner: whenever it is felt
essential to resort to destruction, the occupying authorities must
try to keep a sense of proportion in comparing the military
advantages to be gained with the damage done.
A word should be said here about operations in which military
considerations require recourse to a ‘scorched earth’ policy, ice.
the systematic destruction of whole areas by occupying forces
withdrawing before the enemy. Various rulings of the courts
after the Second World War held that such tactics were in prac-
tice admissible in certain cases, when carried out in exceptional
circumstances purely for legitimate military reasons.”

It should be noted that the actual implementation of a measure as

radical as blowing up houses is strictly limited, and the references in
the SCI Reports to hundreds of such cases is entirely unsubstantiated.
In this connection, we may quote from Prof. Julius Stone’s “No Peace
No War in the Middle East” (at p. :)15

“As already seen, the demolitions in question have taken place

under provisions of local penal law in force when Israel entered
into occupation. Article 64 thus seems even to require conti-

nuance of this law. Moreover, the same paragraph permits repeal

of such a law in force which is a threat to the Occupant’s securi-
ty. It would thus be very strange indeed to hold that the Oc-
cupant was forbidden to maintain the existing law when this was
necessary for his security. The paragraph also authorises him
to repeal a law which obstructs the application of the Convention:
but it does not oblige him to do so. (Related inferences also |
 REPORTS OF U.N. SPECIAL COMMITTEES 303

arise from Article .)47 It would thus appear that the entire prac-
tice of demolition (like that of deportations shortly to be men-
tioned) under the unaltered local law in force is legally justifiable
under article ,64 paragraph ”.1

One must keep in mind that Israel does not impose the death penalty,

even against the perpetrators of the most serious crimes, such as the
indiscriminate murder of tens of civilians, residents, tourists and in-
nocent and defenceless women and children. There can be no doubt
that from the point of view of humanitarian International Law ap-
plying to armed conflict, which recognizes the power of a sovereign
state to execute such criminals, damage to the property of the indi-
vidual rather than to his person, is preferable when an individual com-
mits crimes entailing the death penalty.*
As for the imposition of a curfew—this is a vital security measure,
designed to maintain order, to stop riots, and to impede the move-
ments of suspects in order to enable searches and to bring about the
apprehension and arrest of suspects. It would seem that no military
authority can forgo the use of this power, though it should be exer-
cised wisely and in such a way as to prevent unnecessary hardship.
It may be added that particularly in the first years of Israeli rule, many
hundreds of local residents were killed and thousands injured as a
result of Arab terrorist activities aimed at achieving
As such, a curfew is therefore not only a means of protecting the
army, but also of ensuring public order and protecting the local
population.
The 1970 Report of the SWG,” infers from sec. 72 of the Order
Concerning Security Provisions,” that the Israeli authorities practice
collective punishment, for that section provides that a person is liable
if he is the leader of an organization that was convicted, even if he

was not personally responsible. The SWG allegation is based on a

serious mistake in the English translation from Arabic and Hebrew
of the section, used by the Committee.”

art. 68 of the Fourth Geneva Convention.

49See Von Glahn, p. .141
Doc. E/CN/4/1016 .)1970(
51 Published as an Appendix to Proclamation no. 3 in all the Administered Ter-
ritories.
52See the text of the section as translated by the U.N. Secretariat in U.N. Doc.
E/CN/4/1016/Add. 3 )1970( on p. .32
 304 D. SHEFI

Sec. 72 is baséd on reg. 73 of the Defence )ycnegremE( Regula-

tions, ,1945 and does not deal with leaders and organizations at all.
Rather, it says:

“Offencesofa .72 If a corporation is convicted of an offence under

Corporation —_ this Order, any person who at the time of the offence

was a director or officer of the corporation shall be

deemed guilty of that offence, unless he proves that the
offence was committed without his knowledge or that he
took all reasonable steps to prevent its commission.”

The translation used by the U.N., however, reads as follows:

“Offences byan .72 If an organization is convicted of an offence against

organization this order, any person who at the time of the offence

was a leader or official of the organization, shall be

deemed to be guilty of that offence unless he shall prove
that the offence was committed without his knowledge

or that he took all reasonable steps to prevent its com-

mission.”

Clearly the section deals with the limited criminal liability of a

company director or officer, a provision which appears in most

modern criminal legislation dealing with corporate liability. There
is absolutely no basis for any of the conclusions reached by the SWG
in this regard.

H. DEPORTATIONS

This issue was discovered by the SCI in its first Report

and by the SWG in its Report of 197053 The SCI stated, inter alia,
that the Israeli military authorities follow the practice of expelling
leaders from the Territories in violation of art. 49 of the Fourth
Geneva Convention. Amongst those expelled, mention is made of
the former mayor of Jerusalem, Mr. Ruhi el Hatib, and Nadim
Za’aro, a former mayor of Ramallah. The legal basis for the
deportation of’ residents whom the Israeli authorities find to be
active in terrorist organizations and inciters of violence may be
found in the local law, i.e. reg. )1121 of the Defence )ycnegremE(
Regulations, ,1945 which states:

53 See U.N. Doc. E/CN/4/1016/Add. 1 ,)1970( p. .64

 REPORTS OF U.N. SPECIAL COMMITTEES 305

,noitatropeD“ )1( The High Commissioner shall have power to

make an order, under his hand (hereinafter in these regu-
lations referred to as ‘a Deportation Order’) for the
deportation of any person from Palestine. A person in
respect of whom a Deportation Order has been made
shall remain out of Palestine so long as the Order remains
in force.”

The deportees have endangered the security of the Territories, for

every one of them was involved in systematic terrorist activities, in

incitement and violence against the authorities, and in propagating
public disorder and disturbance. It should be noted that here, too, a
change has taken place over recent years, and with the relative calm
prevailing in the Territories, the need for deportation has also almost
entirely disappeared. Mention must be made of the fact that many of
the deportees achieved prominent positions in Jordan immediately

upon their arrival, some even becoming Government ministers in

recognition of their activities against the Israeli authorities.
Whilst art. 49 of the 1949 Geneva Convention prohibits the depor-
tation of a resident of an occupied area to the territory of the occupy-
ing state or any other country it does not prohibit deportation to some
other part of the state whose nationality the deportee bears, which is
governed by the leaders he serves and for whose benefit he carries
out acts of terrorism or incitement, either in the framework of under-
ground activities, or sometimes even openly. No norm can be found
in International Law prohibiting the return of the agents, nationals
of a particular state, for which and in whose name they act. It cannot
be argued that deportation of agitators to the east bank of the Jordan
constitutes deportation to “any other country” within the meaning of
art. ,49 for from the point of view of those who absorb the deportees
on the east bank, the place from which they were deported is not “a
different country”. In fact the Jordanians hesitate to argue that people
like the former mayors of Jerusalem and Ramallah were expelled
from the West Bank to another country. Officially the Jordanians have
preferred to claim that the Israeli authorities force public servants
out of their posts.5* Furthermore, examination of the background to

54 This, for example, was the formulation of the argument in a photocopied pro-
paganda booklet distributed by the Arab states at the 2lst Conference of the
Red Cross held in Istanbul in September .1969

..
306 D. SHEFI

art. 49 and the official commentary reveals that it was intended to

prevent cases of transfer of individual residents, or of masses, as oc-
curred during the Second World War, when millions of innocent
people were transferred to dangerous or hostile places governed by
the power that deported them, in order to bring about their physical
destruction or to exploit them as slave labour.

“There is doubtless no need to give an account here of the painful

recollections called forth by the ’snoitatroped‘ of the Second
World War, for they are still present in everyone’s memory. It
will suffice to mention that millions of human beings were torn
from their homes, separated from their families and deported
from their country, usually under inhumane conditions. These

mass transfers took place for the greatest possible variety of

reasons, mainly as a consequence of the formation of a forced
labour service. The thought of the physical and mental suffering
endured by these ‘displaced persons’, among whom there were

a great many women, children, old people and sick, can only
lead to thankfulness for the prohibition embodied in this para-
graph, which is intended to forbid such hateful practices for all
time,"

Obviously, one cannot compare the deportation of individual Jor-

danian agitators and saboteurs with the deportations which the Con-
vention aimed to prevent.

I. ADMINISTRATIVE DETENTION

In its 1971 Report the SCI,* mentioned that the practice of placing
people under administrative detention: “By this procedure”, the Re-
port observes “a large number of people are deprived of their freedom
without accusations having been made against them”.
The mistake of the SCI here was two-fold. First, according to art.
78 of the Fourth Geneva Convention, such form of detention is per-
mitted when necessary for security reasons.

“If the Occupying Power considers it necessary, for imperative

55 Jean S. Pictet, Commentary, Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, ,)1958( pp. .278279
56 U.N. Doc. A/8389 .)1971(
 REPORTS OF U.N. SPECIAL COMMITTEES 307

reasons of security, to take safety measures concerning protected

persons, it may, at the most, subject them to assigned residence
or to internment.
Decisions regarding such assigned residence or internment shall
be made according to a regular procedure prescribed by the
Occupying Power in accordance with the provisions of the
present Convention”. (empsasis added)

We must therefore assume that the SCI was not aware of this
provision of the Convention.
It is natural that detention without trial for a long period will give
rise to criticism, even when International Law sanctions it. Out of
sensitivity to the problem, the following provisions were made to

ensure that the power conferred upon the military commander is not
misused. No one is arrested because of his political views: the reason
for arrest is always the existence of proof of participation in, or abet-
ting, terrorist activities, incitement to such activities, or spying. Some-
times, such evidence cannot be presented in court, because the witness
—who is active in the terrorist framework—is not prepared to testify.
In such cases, it is necessary to impose military arrest, providing that
there is real, material danger involved in allowing the suspect to roam
freely and that there is no alternative method of keeping him under
effective surveillance.

Administrative detention is designed for emergency cases, and its

aim is to prevent people suspected of engaging in hostile acts, from
continuing their subversive activities. It is not surprising that the need
for the institution of administrative detention was recognized by all
states who signed the Geneva Convention. In the history of war, almost
no state involved in belligerency has refrained from resorting to this
means of protection. The best example of this is the administrative
detention in the United States of more than 100000 citizens of Japa-

nese origin during World War Two.

Again, although according to the law and to the Convention, the

power to detain is not limited in time, there is a local provision which

states that the Area Commander may not issue a detention order for
more than 18 days without obtaining the consent of the Minister of
Defence. Every order is for a defined period. Moreover, every person
under administrative detention is automatically brought before an
appeals tribunal, presided over by a judge, at least once every six
 308 D. SHEFI

months, as required by art. 78 of the Convention, and should he so

wish, he may ask that his case be heard even earlier and more fre-
quently. He has the right to be represented by counsel.
Since ,1976 the number of people under administrative arrest has
decreased, and they now number less than twenty.
The additional allegation that most of those under administrative
detention are communists, and that their arrest is due to their com-
munism, has no foundation either and no person has ever been
arrested for his political activity or affiliations. The Communist Party

was indeed outlawed under Jordanian law, and is still illegal in most
Arab countries. The military authorities in Judea and Samaria dis-
regarded in fact the prohibition imposed by the Jordanian Government
against the Jordanian Communist Party in the West Bank, even though
it had changed its name to the “Palestinian Communist Party” in
order to create a semantic, as well as ideological affinity with the
Palestine Liberation Organization. The SCI was not apprised of the
fact that several years have passed since a number of the activists of
the Jordanian Communist Party on the West Bank switched from
political activity to real terrorist activities; a number of them were
apprehended and tried for sabotage and for possession of significant
quantities of arms and weapons. Some of the Party activists have
established a terrorist organization called the Palestinian National
Front, whose aim is to engage in terrorism and subversion against the
military government.
In one of the Reports, the allegation was made that the hearings
before appeals tribunals were conducted in the absence of the detainee

or his counsel. This indeed was the practice when the British Man-
datory authorities and the Jordanians implemented the Regulations.
Today, however, both the prisoner and an attorney of his choice

appear before the tribunal.

J. PROLONGED DETENTION BEFORE TRIAL, THE RIGHT

TO COUNSEL, AND MEETINGS BETWEEN THE PRISONER
AND HIS ATTORNEY

According to the 1976 SCI Report, a person may be detained before

trial for a period of six months and this period can then be extended
indefinitely. This is not accurate: pre-trial detention procedure takes
the following course. Arrest is effected by the police or Army, written
 REPORTS OF U.N. SPECIAL COMMITTEES 309

and signed confinement orders are obligatory and the charge has to
be stated. Every arrest is for a defined period and the power of the
arresting officer has been defined by security legislation. Only a military
court can order an extension, beyond 18 days, should this be required
for the purposes of the investigation, for defined periods which may
total six months in all so long as no indictment has been filed. When an
indictment has been filed the court may extend detention until the
completion of the legal proceedings.
Any such period of detention must be deducted (under military
law) from any prison term imposed.
The claim was also raised that there is no obligation to provide
the accused with counsel, and that meetings of accused and counsel
before trial, is at the discretion of the police officer but not as of right.
This claim is unfounded. The High Court of Justice has ruled that

every prisoner in Israel has the right to confer with a lawyer. .A.rC(
,30760 16 P.D. ,1541 and Cr.A. ,9676 20 P.D. )II( .)539 More

over, a prisoner may always petition the High Court of Justice for an
order of mandamus requiring the authorities to expedite the meeting.
Identical rules have been followed in the Administered Territorics
under security legislation and the written directives of the Military
Advocate General of ,1967 and these are included in the Standing
Orders of the Military Government.

K. DISTURBANCE OF RELIGIOUS LIFE AND

The SCI claimed that the religious feelings and values of the
population in the Territories were not respected. There is absolutely

no basis for such an allegation. The Military commanders issued an

Order in all the Territories concerning the Preservation of the Holy
Places, similar to the Preservation of the Holy Places Law adopted
by the Israeli Knesset immediately after the Six Days War. The
provisions of this order have been strictly adhered to.
Immediately after the Six Days War, a general permit was granted
to the inhabitants of Judea and Samaria, and Gaza to enter Jerusalem

.N.U57 Doc. A/8089 ,)1970( p. .58

.N.U58 Doc. E/CN/4/1014/Add. 1 ,)1970( p. .75
59 See e.g. concerning the Area of Judea and Samaria, Coll. P. & O. .J( and ,(.5

p. .663 See also the English translation of the Order in U.N. Doc. E/CN/4/1016/
Add. 3 ,)1970( p. .54
310 D. SHEFI

every Friday for the purpose of prayer at the sites holy to Islam.
Residents of Gaza were given a general permit to leave Gaza and
enter Judea and Samaria without personal exit and entry passes. Today
there is free, unimpeded traffic between one area and another, and
between each of the areas and Israel and vice versa. Furthrmore,
there is free traffic—both of people and of goods—from the areas to
Arab countries. No restrictions are imposed on pilgrimage to Mecca.
To date, the number of people who have crossed the Jordan River in
either direction exceeds eight million. More than 150000 people have
arrived annually in the framework of the summer visits of the resi-
dents of Arab countries to the Territories and to Israel. Tourist traffic

over the bridges has also developed.

In the 1970 Report of the SWG® Sheikh Abdul Hamid A-Saikh,
who was the Chief Kadi in Judea and Samaria before his deportation
to Jordan in 1968 as a result of subversive activities, was quoted as
testifying that he was informed by the Israeli authorities that the
religious courts should stop applying Moslem law and instead apply
Israeli law. This is incorrect, for in Israel, too, the Moslem courts
apply Islamic religious law. In the territories under Israeli rule, exist-
ing law remained in force by virtue of Proclamation No. ,2 and the
local courts, including the religious courts, have never been asked
to apply Israeli law. The Military Government introduced no
changes into religious life and religious institutions; all religions were
guaranteed freedom of worship, exclusive jurisdiction to appoint their
various and, primarily, independent administration of
their Holy Places and religious educational institutions. Especially
remarkable is the fact that although Israel imposed Israeli law, juris-
diction and administration on East Jerusalem, which in 1948 had
been severed from West Jerusalem after its conquest by the Trans-
jordan Army, the status of the main religious institutions of the Mos-
lems were not affected, even though their centres were in Jerusalem;
neither was their independent jurisdiction over all matters of personal
status. Moreover, the Military Government has contributed substan-
tial sums of money towards the renovation of tens of mosques and
churches, and religious institutions were refunded the taxes paid on
imports of religious articles, such refunds amounting to millions Is-
raeli pounds. Every year more than five thcusand pilgrims journey

Doc. E/CN/4/1016/Add. 1 ,)1970( p. .75

 REPORTS OF U.N. SPECIAL COMMITTEES 311

to Mecca to fulfil the religious commandment of Al-Hadj, taking

with them more than 1000000$ in foreign currency.
The 1975 Report of the SCI,®! asserted that the religious values
of the residents of Hebron and of Judea and Samaria had been of-
fended by the )hsiweJ( settlers in Hebron. The reference here is to

a demonstration by Israeli settlers protesting the fact that their right

to pray in the Cave of Machpelah (the burial place of Abraham,
Isaac and Jacob) was restricted during the period of Ramadan in
order to enable the Moslems to hold more prayer services there
during that period. Jews have lived in Hebron for thousands of years,
until 1929 when the Arabs slaughtered hundreds of them and the

rest were evacuated by the British authorities. The Commission took

the opportunity to say that it had checked the relevant provisions of
the Fourth Geneva Convention, and the official Commentary to art.
27 of the Convention, which states, inter alia:

“Religious freedom is closely connected with the freedom to prac-

tice religion through religious observations, services and rites.
Protected persons... in occupied territories must be able to
practice their religions freely, without any restrictions other than
those necessary for the maintenance of public law and morals.”

The Commission rested content with the above quotation alone and
did not add anything, for at issue was action by Israel to apply the
principles laid down in art. .27 It is regrettable that in later debates
in the Security Council in 1976 on the accusations levelled against
Israel with respect to the confrontation between Jews and Arabs on
the right to pray in the Cave, no mention was made of the fact that
the Israeli administration takes all possible steps to ensure a fair and
just arrangement concerning religious services so that both Arabs and
Jews can conduct them in a fitting manner and that the holy days
of both religions are given special consideration.
Visitors to the Holy Places in Jerusalem and in Judea and Sa-
maria have never enjoyed the same freedom of worship and religion

as they have since .1967

.N.U61 Doc. A/10272 ,)1975( pp. ,26 .27

 2 D. SHEFI

L. INTERFERENCE IN EDUCATION

The allegation has been made by the SCI that the Israeli author-
ities interfere in matters of education by changing school syllabi and
exerting pressure on the teachers. The Commission stated it could
not determine the extent of the interference, but it recommended that
appropriate steps be taken to ensure that art. 50 of the Fourth Geneva
Convention be observed.
The allegation of interference is entirely unfounded. A study of
the security legislation reveals that the intervention of the Israeli
Military Government has been limited to prohibiting the use of books
containing anti-Jewish propaganda. Intervention of this type is per-
mitted under the norms of International Law. In this context, we may
quote von Glahn:

“Summariizng what has been said above, it can be affirmed -sed(

pite the silence of customary law and of the Hague Regulations)
that the occupant in essence may control and supervise only such
aspects of an educational system in occupied enemy territory as
affect directly the military occupation and the conduct of hos-
tilities. Beyond this point to interference appears to be permis-
sible. Actual practice, however, differs strikingly from this rather
tolerant attitude of writers on international law. In almost every
single major belligerent occupation in recent history, the occupy-
ing power has quickly taken steps far beyond a mere supervision
of native schools and institutions of higher learning; in many
instances far-reaching changes have been effected while in others

a temporary or lasting elimination of large portions of an educa-

tional system was perpetrated by a military occupant...
American regulations for the administration of occupied enemy
territory devote but little space to questions of education. On the
other hand, the thirteenth proclamation of General Eisenhower
(December ,16 )1944 told the German people that all educa-
tional institutions except boarding schools and orphanages would
be closed upon arrival of United States troops, until Nazism had
been eliminated. The subsequent intensive purge of National So-
cialist elements from teaching staffs, the elimination of Nazi
texts, and other measures involved in the administration of the

62 See Von Glahn, pp. 65 ff.

 REPORTS OF U.N. SPECIAL COMMITTEES 313

German educational structure in the Western zones were in-

stituted or at least carried out subsequent to the time during
which the Allied occupation authorities in Germany were still
bound by the restrictions of the Hague Regulations, that is to

say, after the beginning of the post-surrender administration of

defeated Germany.”

A military government which has assumed responsibility for edu-

cation is not obliged under International Law to tolerate official use
of such offensive texts. As for the actual syllabi and curricula, the
Military Government has no control. In fact, after publication of
Order No. 107 in the Area of Judea and Samaria on 29 August
in which the prohibition against teaching from the texts listed
in the Appendix to the Order was laid down, a “parity committee”

was set up, comprising representatives of the local educational bodies

(residents of the area) and the Military Government. After the
committee had checked all the books, an Order .oN( *%)183 was
issued, on 2 December ,1967 permitting the use of amended versions
of the texts. Subsequently it was agreed, with the consent of UNESCO,
that the Israeli Government would ask for UNESCO’s opinion when
checking books. This arrangement has worked smoothly ever since.
The Israeli Military Government has not interfered with syllabi,
and students in the Administered Territories continue to study in
accordance with the syllabi set by the local heads of the educational
system who are also residents of the Territories.

M. SETTLEMENTS, ANNEXATION AND THE APPLICATION

OF THE GENEVA CONVENTION

One of the recurrent accusations in each of the Reports of the

SCI turns on the question of Isreli settlements in the Territories.
The SCI has considered these activities illegal because, in its opinion,
they are contrary to art. 49 of the Fourth Geneva Convention. More-

over, the SCI has regarded the settlements as a quasi-annexation of

the Territories by Israel. For this reason, the settlements are defined
in all the reports, save the first, as “annexation and

63 Published in the Coll. P. & O. .J( and S.), p. .235

64 Jbid., p. .364
65 See the Second Report, A/8389, paras. ;1136 the Third Report, A/8828, paras.
:2638 the Fourth Report, A/9148, paras. ;4087 the Fifth Report, A/9817, paras.
314 D. SHEFI

The government of Israel has in fact established two kinds of

settlements: the first — the re-establishment of settlements on lands

owned by Jews before the War of Independence, as in the Etzion
Bloc or Kfar Darom in the Gaza Strip which were destroyed in the
War of ;1948 the second — those set up for security purposes arising
from military necessity, which combine agriculture with a presence
safeguarding the security of the area.
The two principal treaties regulating the behaviour of an occupy-
ing power are the Regulations annexed to the Fourth Hague Con-
vention of 1907 Respecting the Laws and Customs of War on Land,
and the Fourth Geneva Convention of .1949 The Hague Regulations
consolidated the rules of occupation at the beginning of this cen-
tury. They neither permit nor forbid the establishment of settle-
ments by the occupant: in fact, all reference to the question is
lacking. The Fourth Geneva Convention was drawn up in the light
of the experience of the Second World War, especially the German
occupation of many countries. The legal arguments advanced by the
Israeli authorities in relation to the non-applicability of the Fourth
Geneva Convention to those parts of former Mandatory Palestine,
conquered and occupied in 1948 by Transjordan and Egypt respect-
ively, have been presented elsewhere in this volume. Assuming that
the Convention does not apply to Judea and Samaria and Gaza,
whose legal position is regarded as being sui generis, it follows
ipso facto that the legality of the Israeli settlements cannot be eva-
luated according to Article 49 of the Convention, which has been
regarded as the sole legal basis of the allegation of illegality.
Alternatively, even if the Convention is taken to be applicable to
the Territories, art. ,49 is not relevant. The operative part of the
article states that

“The Occupying Power shall not deport or transfer parts of its

own civilian population into the territory it occupies”’.

A study of this part of art. 49 and the commentary thereon re-

veals that its purpose is to protect the local population from depor-
tation or displacement. Thus, the question to what extent the occupy-

;3764 the Sixth Report, A/10272, paras. 3139 ;)1975( the Seventh Report
A/31/218, paras. 2533 ;)1976( and the Eighth Report, A/32/284, paras. 3254
.)1977(
 REPORTS OF U.N. SPECIAL COMMITTEES 315

ing power may deport or transfer her own population to the oc-
cupied territory is linked to the question to what extent such an
action would bring about the displacement of the local population
from their lands.
This conclusion finds support in

“The Occupying Power must not deport or transfer parts of its

own civilian population into the territory occupied by it—a pro-

hibition intended to cover cases of the occupant bringing in its
nationals for the purpose of displacing the population of the
occupied territory.”

Moreover, Pictet, has noted*®’ that

“This clause was adopted after some hesitation, by the XVIIth

International Red Cross Conference. It is intended to prevent a
practice adopted during the Second World War by certain Pow-

ers, which transferred portions of their own population to oc-

cupied territory for political and racial reasons or in order, as
they claimed, to colonize those territories. Such transfers wors-
ened the economic situation of the native population and en-
dangered their separate existence as a race.”

It appears that the question whether the above prohibitions apply

to the settlements set up by Israeli governments in the Territories
must be answered in the negative. The Arab inhabitants have not
been uprooted from their lands as a result of the settlements, nor
have the latter changed the status of the Territories. The laws that
pertained there have remained in force, and the status of each part
of the Territories has remained subject to the laws of belligerent
occupation.
The SCI’s claim that the Israeli settlements not only represent an
act of annexation but also change the demographic structure of these
areas is without basis: the number of Israelis in the settlements
totals less than %1 of the local population and has no real effect on
the demographic structure of the Territories.
In an interview given by Professor Eugene Rostow of Yale -rof(
merly U.S. Assistant Secretary of State), one can find strong legal

66 Oppenheim, Vol. II (7th ed.), p. .452

67 Pictet, op. cit., p. .283
316 D. SHEFI

arguments in support of Israei’s right to settle in Judea and Samaria

and the Gaza Strip. The interview was published in the New York
Times and in Haaretz on 4 August .1978 The essence of Prof. Ros-
tow’s argument is that Judea and Samaria formed a part of Man-
datory Palestine which was allotted neither to Jordan nor to Israel,
and, therefore, Jews from Israel have a legitimate right to settle
there.

“It is not true that Israel refuses to enforce Resolution 242 to

the West Bank. This area enjoys a special status. Neither the
West Bank nor the Gaza Strip are the recognized territory of

a sovereign State. They were part of the Mandate over Pales-

tine, an area which until 1946 comprised what is now Jordan,
Israel and those territories under dispute, ic. the West Bank
and the Gaza Strip. The Mandate is a pledge of an intern-
ational character, e.g. the Mandate over German South-West
Africa, today, Namibia. The continuation of the Palestine Man-
date was confirmed by art. 80 of the U.N. Charter and by the
Advisory Opinion of the International Court of Justice in the
South-West Africa case.
The Mandate and its territorial boundaries are the only modern
definition of the expression ‘the Land of Israel’. The territory
of the Mandate is the Land of Israel—Eretz Yisrael—and the
people entitled to live there—Palestinians, whether they be Christ-
ian, Moslem or Jew. The Israeli settlements, therefore, are not
illegal.

As to whether the U.S. Government accepted this view, he said:

“Our State Department does not deny the rights of the Israelis,
by virtue of the Mandate over Palestine, to settle in the West
Bank and Gaza Strip. At the same time, it relies on an article
in the Geneva Convention which prohibits the military occupant
from deporting local inhabitants and settling amongst them
members of its own population. This article was formulated
with the Nazi occupation in mind. Since Israel does not deport
Arab inhabitants, nor uproot them from their homes in order
to make room for the Israeli settlements, and since her pre-
sence in the West Bank is not simply as that of a military
occupant, art. 49 of the Geneva Convention cannot be ap-
 REPORTS OF U.N. SPECIAL COMMITTEES 317

plicable to the problem of the West Bank and Gaza Strip. No

state ever acquired sovereignty over these areas, and as a result

there are no sovereign rights to be protected. In my opinion,

our Government has made an error in this regard, certainly

with respect to the West Bank, and perhaps even to the Sinai
Peninsula.”

To the question whether Jordan has a better right than Israel over
the West Bank, he replied:

“Jordan held the West Bank as a military occupant between

1948 and 1967 following a war of aggression. She admitted to

annex the area in ,1951 but no Arab state recognized Jordanian

sovereignty over this territory. Neither did the United States.
Israel’s claim that she has a right over this territory by virtue
of the Mandate is not weaker than the Jordanian claim...
There are in fact legal experts who believe that Israel’s claim
is the stronger of the two since she captured the area in 1967
in a war of self-defence. According to Security Council Res.
,242 adopted in ,1967 Israel and Jordan have to come to an
agreement regarding the future of the territories, and then make
peace. But, as I have pointed out, King Hussein still refuses to
do this.”

As for chances of a settlement of the Palestinian Problem, Prof

Rostow observed:

“Israel came forward with a plan for self-rule for the Palestinian
Arabs in specified areas of the West Bank and an end to the
military government, with Israeli authority in this area remain-
ing only in matters of security and foreign affairs. This blueprint
is appropriate for the ideal solution.
The American administration is in agreement with the general
ideology of this plan, but claims that the Israeli settlements in
the West Bank and Sinai are illegal. As I explained above, this
view is based on error. Israel has a legitimate right to establish
settlements in the West Bank and the Gaza Strip until a final
allocation of these territories between Israel and Jordan has been
made, or until this problem is solved in an international peace
treaty.”
 8 D. SHEFI

N. LAND EXPROPRIATION

An additional allegation frequently made by the SCI in its reports

concerns changes in property ownership that have been effected, as it

were, by the Israeli government, i.e., the matter of land expropria-
The SCI has treated this matter both independently and in the
context of what it termed the annexation and settlement policy.
It must be noted that the Government of Israel and the military
administration are fully aware of the legal principles binding on an
occupying power and have borne in mind art. 46 of the Hague Regu-
lations:

“Family honour and rights, the lives of persons, and private pro-
perty, as well as all religious convictions and practice, must be
respected. Private property cannot be confiscated.”

Since the entry of Israeli forces into the Territories, Israel has con-
sistently refrained from expropriating private property. We may then
ask: how were the many settlements established in the Territories,
and what legal line did the authorities take in order to grant rights in
the land on which the settlements were built, and what is the nature
of these rights?
No question of private property is involved in the case of settle-
ments established by the Israeli authorities on lands that were owned
by Jews before ,1948 e.g., the Etzion Bloc, Kfar Darom etc. Other
settlements were established on state, not private land. Only a handful
of settlements were established on land seized for military purposes,
and even here ownership was not affected: the authorities were merely
granted the right to use the land.
Authority for the case can be found in Oppenheim: ®

“Immovable private enemy property may under no circumstances

or conditions be expropriated by an invading belligerent. Should

he confiscate and sell private land or buildings, the buyer would
acquire no right whatever to the property. Article 46 of the
Hague Regulations expressly enacts that private property may
not be confiscated, but confiscation differs from the temporary

68 See the SCI’s First Report, A/8089 ,)1970( paras. ;123131 the Third, A/8828
,)1972( paras. ;3945 the Fourth, A/9148 ,)1973( paras. .7984
69 Oppenheim, Vol. II, p. .403 See also Von Glahn, p. .228
 REPORTS OF U.N. SPECIAL COMMITTEES 319

use of private land and buildings for all kinds of purposes

demanded by the necessities of war...
If necessary they (private buildings) may be converted into
hospitals, barracks, and stables without compensation for the
proprietors, and they may also be converted into
(emphasis added)

Similarly, the B.M.M.L. states in art. :592

“The temporary use of land or buildings for the needs of the

army is justified, even though such use may impair its value. On
the one hand, privately owned land and buildings may be used
for military movements, quartering, and the construction of de-
fence positions. On the other hand, the inhabitants may be com-
pelled to accommodate troops and sick and wounded in their
houses. Buildings may be used for purposes of observation, re-
connaissance, cover, defence, etc., and if necessary, houses, fences
and woods may be demolished, cut down, or removed to clear

a field for fire or to provide material for bridges, fuel etc., im-
peratively needed by the occupying army.”

In Suleiman Tufik Aiyob v. The Minister of Defence, 33 P.D. ,)LI(

,113 Witkon J. said:

“But the main thing is that from the aspect of pure security
considerations, there is no doubt that the presence of settle-
ments—even “civilian citizens of the occupying
power in an occupied zone contributes greatly to the security
situation in that zone and facilitates the work of the army”.

The then Deputy President of the Supreme Court (Landau J.)

and Asher, Bechor and Ben-Porat JJ, concurred.
In every instance moreover in which land seizure orders have been
made for military purposes, it has been specified as an integral part
of the order that the owners and/or legal occupants of the land are
entitled to a yearly rent in accordance with a valuation of the land
by a government assessor, this, despite the fact that an occupying

power has no duty to pay such rent.” In this context, it is interesting

to compare art. 593 of the B.M.M.L.:

7 Schwarzenberger, International Law, Vol. II, pp. ;193292 Von Glahn, p. .227
 ‫יי‬ ‫יי‬

320 D. SHEFI

“The owner of property may claim neither rent for its use nor
compensation for damage caused by necessities of war.”

O. THE IMPOSITION OF VALUE ADDED TAX

In the 1976 Report of the SCI, reference is made to demonstra-

tions that took place in the Territories in protest against the imposi-
tion of value added tax. The Report states that the tax was imposed
in the Territories in order to equate prices in Israel and the Ter-
ritories, in view of the free movement of goods and commerce be-
tween the two markets for years.
In ,1968 when the decision to remove the border check-points
between Israel and the Territories was made (freedom of movement

was one of the basic tenets of the Israeli policy; moreover closing of
the 165 miles of the demarcation line was practically not feasible),
it became necessary to raise the indirect taxes in the Territories in
order to bring prices up to the Israeli level and thus prevent smugg-
ling. Once the decision had been taken to introduce value added tax
in Israel, its introduction into the Territories in 1974 was again
unavoidable. The tax was imposed by means of an amendment to
the local excise law applying to local production, raising the levy by

a rate equal to the value added tax. Non-imposition of the tax would
have encouraged smuggling from the territories into Israel, and could
also have harmed the local merchants, as the Law allows for deduc-
tion of the tax already paid in the chain of production.”

P. INTERFERENCE WITH THE LOCAL LEGAL SYSTEM

Allegations of such interference appear in the first Report of the

SCI. The charge was that Israel had moved the seat of the Appeal
Court from Jerusalem to Ramallah, thus causing its work to be
paralysed. It must be pointed out that before the Six Days War,
Jordanian law provided for two Appeal Courts: one in Amman,
which heard appeals from the judgments of the lower courts on the
East Bank of the Jordan, and the second in Jerusalem, which heard

71 See also Dov Shefi, “Taxation in the Administered Territories”, ,)1971( 1

 REPORTS OF U.N. SPECIAL COMMITTEES 321

appeals from the judgments of the lower courts in Judea and Sa-
maria. Upon the re-unification of Jerusalem, an Order was pro-
mulgated by the military authorities on the West Bank”? which trans-
ferred the Court sitting in Jerusalem to some other place on the
West Bank, the exact location to be determined by the local Presi-
dent of the The offices of this Court were in fact moved to
Ramallah. The Court hears appeals from the judgments of all the
lower courts in the Region. The move to Ramallah did not bring
about its paralysis; on the contrary, the Court functions regularly, and
has handed down hundreds of judgments, among them a number of
leading At the beginning of ,1973 the first collection of
selected judgments of the Appeal Court in Ramallah was published,
including some of its leading cases. In ,1972 39953 cases were heard
in the local courts, of which 1067 were at the appeal level. The
number of cases heard since then has continually risen. It must be
noted that the local law in the territories has remained in force, as
required by art. 43 of the Hague Regulations and art. 64 of the
Geneva Convention, and the Courts are manned by local judges only.

Q. LEGAL AID

The first Report of the SCI also alleges that insufficient legal
assistance is rendered to people held under arrest. There is no basis
to this allegation. In accordance with the Order Relating to Defence
Counsel that was promulgated and is enforced in all the

every person brought before military courts was given the right to
counsel. The Order guarantees this right of the accused, and the
following provisions of the Order are noteworthy:

*“ “defence counsel’ means an Israeli or local lawyer; every defend-

ant shall have the right to choose a local or Israeli lawyer to

72 Order No. 39 relating to Local Jurisdiction: Coll. P. & O. .J( and S.), p. .86
73 See s. 3 ibid.
,eeS74 inter alia, the judgment of the local Appeal Court in C.A. ,3468 which
held that the military governor of the Area could permit Israeli lawyers to

appear before local courts and that the Order in this respect conformed to the
rules of International Law in light of the local lawyers’ strike. The judgment

appears in English translation in’ the Collection devoted to the law in the Ad-
ministered Territories, published by the Institute for Legal Research and Com-
parative Law of the Faculty of Law, the Hebrew University of Jerusalem .)1970(
75 Order No. ,400 published in Coll. P. & O. .J( and ,).S§ p. .933 Identical Orders

were promulgated in the other Areas.

 2 D. SHEFI

defend him before a military court; the legal advisor to the

Military Command may, even prior to the commencement of
trial, appoint counsel to defend the accused with the latter’s
consent. A military court is similarly empowered to appoint
counsel for a defendant accused of a serious crime, if the legal
advisor has not already done so; The fees and costs of the
defence are paid by the Regional Command.”

Under security legislation in addition, an interpreter is appointed

in every trial. The defendant has the right to object to the interpreter

SO appointed and demand another.”* These rights of the defendant

conform to the provisions of art. 72 of the Fourth Geneva Convention.
The allegations regarding the lack of legal aid to detainees are
especially astonishing in view of the strike of many local lawyers in
the West Bank. The lawyers on strike refuse to appear before either
the local or the military courts. They thus harm the local population
in need of legal assistance both in civil and in criminal proceedings
before these courts. Owing to this situation which, as we have said,
harms mainly the local population, the Military Commander of the
West Bank has issued an Order Relating to the Appearance of Israeli
Lawyers,” providing that until further notice by the Regional Com-
mander, Israeli lawyers may appear before local courts. We can see,
therefore, that the Military Government has not been indifferent to
the lack of legal assistance for the local population. It may be observed
that in Gaza, on the other hand, the local lawyers all appear before
both local and military courts, for they have not joined in the strike
of their colleagues in Judea and Samaria.

R. ALLEGATIONS AGAINST THE LEGAL SYSTEM

IN THE TERRITORIES

The Committee saw fit to invite only one single Israeli lawyer7® to
testify before it, and its choice fell upon an active member of the
Central Committee of the Israeli Communist Party which Supports
the cause of the Palestinian terrorists. A book written by this lawyer

was considered by the Supreme Court, sitting as a High Court of

76 506 .5 12 of the Order Relating to Security Provisions, .1970 Also, Coll. P. & O.
,)azaG( p. .1342
Order No. ,145 published in the Coll. P. & S. .J( and S.), p. .306
.N.U78 Doc. A/31/218 .)1976(
 REPORTS OF U.N. SPECIAL COMMITTEES 323

Justice and the then Deputy President (Landau J.) remarked:

“This book glorifies the views of the terrorist organizations seeking

to undermine the existence of the State of Israel by various kinds
of violence. It is a sort of record of the author’s activities as a
defence lawyer, especially in the military courts, and she instant-
ly turns every allegation said by her clients to have been received
from their interrogators into irrefutable truth, claiming that the
rejection of these accusations by the courts would be a miscarriage
of justice. The book does, indeed, contain passages which extol
the cause of the Palestinian Arabs, but these passages grate on
one’s ears considering the known aim of the terrorist organizations,
to which the book is, both in spirit and in its formulation, openly
sympathetic.”

Some of the remarks of the Committee in relation to the legal sys-

tem in the territories are apparently based on the expertise of the above
mentioned attorney who has been selected from the thousands of
Israeli advocates, in order to pass judgment on the Israeli court-
system.
The SCI’s 1976 Report states that the military courts have personal
jurisdiction. This claim is mistaken: The jurisdiction is general and
territorial. Every perpetrator of an offence in the Territories, whether
Israeli, tourist or local resident, is subject to the jurisdiction of the
military courts, and it is a fact that the Jewish inhabitants in Kiryat
Arba are also brought to trial for security offences before a military
court.
The above Report also points out that the military courts in Lydda
and in the Territories are composed of a single judge when dealing
with light offences. For some reason it is not mentioned that this 1s

an explicit provision of Israeli law and of the Orders in force in the

territories. Similarly, there is no mention of the fact that the President
of a military court comprising one judge must be a lawyer who is
qualified by law to be appointed a military judge in the military appeals
court, i.e., a lawyer of at least 6 years standing.
Again, the 1976 Report mentions the Israeli Penal Law Amend-
ment (Offences Committed Abroad) Law, ,1972 which extends the
jurisdiction of the courts in Israel to certain offences directed against
the security of the State, even when committed outside of Israel. The
Law applies in Israel rather than in the territories, and it is doubtful
324 D. SHEFI

whether the committee was competent to discuss this matter. The

courts in the Territories have no power to apply this Law.

Sec. )a(2 of the Law states explicitly that the courts in /srael may
try under Israeli Law whosoever has committed abroad an act which
would have been an offence if committed in Israel and which harmed

or was intended to harm the security, property, economy or means

of transportation of Israel, or its communications with other countries.
The law represents an application by Israel of the protective principle,
adopted by many countries. The allegation included in the Report
that this Law is retroactive is simply without foundation.
Further, the 1976 Report states that there is no appellate Court
instance in the Territories. While it is true that there is no court to
hear appeals against judgments of the military courts there, the Fourth
Geneva Convention does not impose a duty to set up courts at the
appeal level, as long as the legal possibility exists of petitioning a
competent authority against judgment (see the proviso to art. 73 of
the Convention). Judgments of a panel of three judges require con-
firmation by the Regional Commander who may quash the judgment

or reduce sentence. The convicted person has the right to petition

before confirmation and after and the commander is empowered by
order to reconsider the judgment and reduce the sentence at any
latter stage. Thus, there is strict adherence to the provisions of Article
73 of the Fourth Geneva Convention.

S. IMMUNITY OF PERPETRATORS OF OFFENCES

AGAINST THE LOCAL POPULATION

Mr. Nadim Zarro, former Mayor of Ramallah, testified before the

SCI, which described his evidence as reliable and meriting a high
degree of credibility. Mr. Zarro related, inter alia, an incident in which
two members of the Israeli Border Police caused the deaths of two
local inhabitants, but after interrogation were released. This is a pure
falsification. The truth is that an unfortunate incident in which two
border policemen caused the deaths of two local inhabitants indeed
occurred. However, the policemen were tried in the Jerusalem District
Court of a charge of murder, convicted and one was sentenced to
life imprisonment and the other to imprisonment for five years.”®
In ,1972 Amnesty International filed a complaint that in August

79 Since the abolition of capital punishment for murder in Israel, this is the only
 REPORTS OF U.N. SPECIAL COMMITTEES 325

of that year, a shepherd in the West Bank was shot to death but that
although the police were informed of the incident, no investigation

was conducted. Exarhination of the matter revealed that on 20 August

,1972 an Israeli soldier suffering from boredom while waiting for a
ride, had started shooting at a sign on the side of the road. The
shepherd who had been standing about 1150 metres away was struck
by one of the bullets and died. His body was found only after the
soldier had already arrived in Jerusalem but two identikit pictures

were made on the basis of eye-witness descriptions and these led to

the arrest of the soldier 10 days after the incident, following intensive
investigations. The soldier was brought to trial and convicted of
negligent manslaughter on the basis of circumstantial evidence. He

was sentenced to two years imprisonment.”

The 1976 Report®! records the death of Ahmad Sheikh Dakhboul
from the village of Salfit. Dakhboul was arrested on 23 March ,1976
following demonstrations against the Military Government, and on
the way to the police station, he was hit by soldiers. The conse-
quential action taken was not mentioned in the Report:
The responsible officer was brought to trial in a military court,
convicted, deprived of his rank, and sentenced to two years impri-
sonment.
These incidents show not only that the Israeli authorities do not
grant immunity to perpetrators of crimes against the local popula-
tion but that they spare no efforts to discourage such incidents and
to bring to trial anyone causing illegal injury to the inhabitants of
the Administered Territories.

T. IMPROPER TREATMENT OF PRISONERS

The SCI reported in great detail the complaints of different forms

of torture suffered by people under arrest in the Administered Ter-
ritories.

sentence for this offence. The defendants appealed to the Supreme Court. The
appeal of one of the defendants was dismissed and his life sentence confirmed;
the appeal of the other, which turned on his part in the crime, was accepted in
that his conviction for murder was quashed and he was convicted instead of the
offence of aiding in homicide and sentenced to five years imprisonment. (See
Cr. A. ,55268 24 P.D. )1( ).377
judgment of the District Military Court, Central Commandant, File No.
55072 .)2641973(
.N.UL8 Doc. A/31/218 ,)1976( p. .24
 300 D. SHEFI

the humanitarian programme of reunion of families—despite the fact

that it was under no formal obligation to do so—while hostile acti-
vities were being conducted against her. Israel’s humanitarian ap-
proach is in striking contrast to the fact that all but one of the Arab
State continue to consider themselves at war with Israel.
In this context, it is appropriate to quote art. 535 of the

~The occupant may forbid individuals to change their residence,

may restrict the freedom of internal movement and forbid visits

to certain districts, may prohibit immigration and may insist on
all persons providing themselves with an identification pass -me(
phasis added)”.

The article goes on to deal with the duty of the occupying power
to enable ”detcetorp“ civilians, as defined in the Fourth Geneva
Convention, who are not residents of the occupied zone to leave that

area: that, too, depends on the circumstances. Thus, the residents of

an occupied zone have no right to leave, and a fortiori, they have no
right to enter the zone; neither is the occupying power under any
obligation to permit them to enter, as long as the dispute continues.

G. COLLECTIVE PUNISHMENT (DEMOLITION OF HOUSES,

IMPOSITION OF CURFEW, EXPULSIONS)

In its first Report*® the SCI emphasised that the demolition of

houses and the imposition of curfews constitute collective punish-
ments, in violation of art. 33 of the Fourth Geneva Convention.“
The answer is that the blowing up of houses is necessitated in
certain circumstances by military requirements and that the legal basis
for such action can be found in the local law applying reg. )1191 of
the Defence )ycnegremE( Regulations, ,1945 which is in the following
terms:

“Forfeiture and —.119 )1( A Military Commander may by order

direct the forfeiture to the Government [of Palestine]
of any house, structure, or land from which he has

.L.M.M.B44 p. .147
.N.U45 Doc. A/8089 .)1970(
46 Art. 33 of the Fourth Geneva Convention states: “No protected person may be
punished for an offence he or she has not personally committed. Collective pen-
alties and likewise all measures of intimidation or of terrorism are prohibited.
Reprisals against protected persons and their property are prohibited.”
 326 D. SHEFi

It is worth dwelling on three randomly chosen cases, investigated by

the Israeli authorities, in order to determine the degree of credibility
that may be attributed to the testimony heard by the U.N. fact finding
authorities still investigating Israeli behaviour in the Territories:
In the first case, Mohammad Kadir Derbas® from Gaza claimed
that he had been castrated by the Israeli authorities after being ar-
rested. The Israeli authorities were able to refute this serious accu-
sation after discovering medical records in Gaza which proved that
the complainant had undergone such an operation, owing to

an infection in the testicles, before the Six Days War while Gaza
was still under Egyptian military rule. The relevant Egyptian medi-
cal records were found and copies distributed by the Israeli delega-
tion to the United Nations immediately after publication of the
Report. The first record, dated 14 June ,1966 had been issued by
the Nasser Hospital in Gaza; the second, dated 28 July ,1966 by the
University of Cairo Hospital, signed by Dr. Mohammed Sawfat.
(Copies of the records are appended at the end of this chapter.)
When the SCI published its 1971 Report, it was noted that the
committee had written to the Egyptian Government requesting,
inter alia, information about Professor Mohammed Sawfat, as the
doctor who had issued a medical report concerning the ”detartsac“
Mohammed Kadir Derbas. It appears from the however,
that the Egyptian authorities did not respond to the Committee’s
enquiry. A year later, in its 1972 the Committee noted that
the Derbas affair had not yet been closed, since it was still awaiting

an answer from the Egyptian Government to its earlier enquiry.

In the SCI’s 1973 Report, a note appears to the effect that inves-
tigation of the matter was continuing. Years passed and the Egyptian
authorities still did not provide the Committee with an explanation

or details of the report signed by a Professor of Medicine at the

University of Cairo Hospital. Subsequently, however, the affair was
dropped, apparently assuming that the readers of the first report
had forgotten about it.
In the second case, the Committee’s Report deals with the testimony

para. 104 of the SCI’s Report, U.N. Doc. A/8089 .)1970(

U.N. Doc. A/8309 ,)1971( para. .13
84 Ibid., para. .35
83 U.N. Doc. A/8828 ,)1972( para. .66
 REPORTS OF U.N. SPECIAL COMMITTEES 327

of Saadadin Kamal,® a clerk of the former Public Works Department of

Qunaitra, who lost his eye-sight. According to the witness, he had been
blinded in an Israeli prison. The Committee even noted that the -itset“
mony” of this ”ssentiw“ was ”detaroborroc“ by that of another man who
had known the clerk to be a person of normal eye-sight before the
War. Summing up this affair, the SCI remarks that the motive for
the torture as described by Saadadin was connected with his -er“
fusal to work at forced labour”. The Committee thought that this
explanation was strange but nevertheless did not hesitate to add
that “the motive is irrelevant if the fact is proved”. It went on to
say that it had been impressed by the sincerity of the witmess and
that it had no doubts that he had lost his eyesight while in detention.
The Committee completely ignored the fact that Saadadin had
told them that Israeli soldiers had beaten him up after he admonished
them for attacking two local women.®’ Saadadin’s testimony is not
borne out by any other real evidence as to the cause of his blindness
apart from the testimony of Mohammed Hir Fawzi Id who said
that he remembered Saadadin from before the War as having normal
vision. This proves nothing with respect to the cause of his blindness.
Dr. Ahmad Aziz, the doctor who attended Saadadin in Damascus,

was also unable to add anything on this point. Thus, although they
were left with the testimony of Saadadin alone and although the
motive for blinding him seemed peculiar, the Committee did not
feel that under the principles of law and justice, there was at least
room for doubt as to the reason for his blindness: rather. it concluded
that he had been blinded as a result of torture in an Israeli prison.
In this respect, it must be pointed out that a resident of Kuneitra,
Tufik Zaza, made a statement before the governor of the Golan
Heights to the effect that he knew Saadadin personally and that the
latter had visited his home after the Six Days War. Kamal had told
Tufik Zaza that his eyes had been injured during shelling in the War,
and that he had then been taken by the Israeli army to the hospital
in Safed and hospitalized and subsequently transferred to Syria.
Notice of this finding was submitted by the Israeli representative
during the debates in the U.N. on the 1971 Report of the

86 See para. 79 of U.N. Doc. A/8089 .)1970(

87 See Press Release of the SCI, No. ,496 of .1041970
88 566 U.N. Doc. A/8828 ,)1972( para. .68
328 D. SHEFI

The third case is that of the ”ssentiw“ Suleiman Sheikh Id who

”deifitset“ that he had been tortured while in detention, and that
he had required hospitalization in the ”afihS“ hospital in Gaza.
Three doctors treated him, he said—Dr. Ahmad, Dr. Zihad and Dr.
Rahman. A special investigation conducted by the military author-
ities in Gaza after publication of this report exposed this evidence

as a pack of lies: the man had not been admitted to that hospital
during the period specified nor at any other time; nor had doctors
of these names ever worked there. The Israeli delegate to the Com-
mittee stressed this point.*
The SCI saw fit to emphasise that it had not reached final con-
clusions in any of the cases regarding torture of prisoners, and that
in the final analysis these cases necessitated on-the-spot investigation.
Nevertheless, year after year the Committee has repeated its gen-
eral charges concerning torture during interrogation. It is hardly
surprising that this matter has dominated all the Reports—not be-

cause the findings have been proved by objective evidence, but be-
cause the Committee apparently realized that there is nothing harder
to refute than a charge of torture during interrogation.
The following general remark should be added: In every country,
the methods of investigation employed are a function of education,
legal and social ideology and values and the degree to which the
rule of law and the proper use of authority are respected. There is
clearly a difference in ideology and respect for the rule of law be-
tween Russia and her satellites on the one hand, and the United
States, England and the other countries of the West on the other.
What must be established by the lawyer or anyone concerned
about human rights and the genuine preservation of the rule of law
is not the exceptional cases that can occur in any state. The perti-
nent question is whether legal deterrents exist, and whether the
power hierarchy is genuinely prepared to investigate every charge
of torture or injury to a prisoner and to act against an offender,
whatever his rank and status. The examples given above of the steps
taken by the Israeli authorities against persons unlawfully injuring
residents of the Territories can certainly serve as evidence that Israel
is a state that considers the principles of the rule of law and the

89 Jbid., para. .67

90 Jbid., para. .72
 REPORTS OF U.N. SPECIAL COMMITTEES 329

preservation of all human life sacrosanct. The fact that exceptional

cases sometimes come to light cannot derogate from this. As we

have said, the crucial point is the formal policy of the government
towards unlawful injury to civilians under its authority and its genuine
readiness to deal with the exceptional cases.
Under Israeli criminal procedure, the onus of proof lies with the
prosecution which has to prove, inter alia, that a confession was
given freely and without coercion. By law, the defence may claim
that the confession was made against the defendant’s free will, and
at this point it may cross-examine the interrogators of the accused
in order to convince the court that the confession was extracted as

a result of the use of force, in which case it is not admissible.

U. CONDITIONS OF IMPRISONMENT

The Committee also dealt with complaints about conditions in

prisons.*!
The Red Cross regularly visits prisons in Israel and the Territories,
and, except for the charge of over-crowding, it generally makes
positive remarks on the conditions there. It must be borne in mind
that all the prisons in the Territories are run by the civilian prison
service, security prisoners being kept in separate cells. Orders re-
lating to the prisons have been issued in all the Territories providing
for conditions for the inmates in accordance with those required in
the Fourth Geneva Convention. The Prison Service complies with
these Orders.
These Orders provide that people incarcerated for security of-
fences may be separated from the criminal inmates. They are also
entitled to daily walks in the open air, hot showers, shaving and
bathing gear, family visits once a month, in addition to special visits

on the three religious holidays: Id el Phiter, Id el Adha, and the

birthday of the prophet Mohammed (family includes relatives from
Arab countries east of the Jordan River), parcels from their families

or purchases in the canteen, the right to pray and keep a Koran,

the right to receive newspapers, the right to write 2 letters and 4
postcards per month, medical treatment, with special permission,
the right to study, receive educational books and take matriculation

S1U.N. Doc. A/31/218 ,)1976( pp. ,31 .32

 330 D. SHEFI

examinations and many prisoners have utilised these rights, the right

to receive visits from a Red Cross representative, and the right to

confer with a lawyer.

X. SUMMARY: THE UNITED NATIONS AS AN INSTRUMENT

FOR INVESTIGATING THE TRUTH

The fact that a U.N. Special Committee of Investigation and Working

Groups have been appointed by means of an imperfect procedure
and that these were composed of delegates of countries hostile to
Israel and selected according to political criteria, all these show
clearly that the U.N. fact-finding bodies are incapable of serving as

a means for investigating the truth. They serve rather as a means

for furthering the propaganda and political aims of Israel’s enemies.
In support of this conclusion, we cannot do better than to quote the
incisive words of the Supreme Court Justice Haim Cohn:

“The flagrant selectivity, whether it be accusations of violations

of human rights to which the U.N. Human Rights Commission
resorts in order to appoint a committee of inquiry, or whether
it be accusations of violations of human rights to which the
Commission does not resort in order to appoint a committee of
inquiry (or anything else)—it, too, is nothing but a direct con-

sequence of the politicization of human rights. In ,1968 the

Commission on Human Rights rejected a proposal submitted by
the Sub-Commission for the Prevention of Discrimination and
the Protection of Minorities to investigate serious violations of
human rights perpetrated by the governments of Greece and
Haiti: both these governments succeeded in enlisting a sufficient
number of states sitting on the Commission to quash the pro-
posal. Or take the actions and omissions of the Nigerian govern-
ment during the Biafran war: the whole world knew and was
shocked that more than a million human beings had died of
starvation and thirst and helplessness, but the political power of
the Nigerians in collecting votes was such that neither the Human
Rights Commission nor any of the other U.N. agencies took (or
will take) any action against it. On the other hand, Israel finds
itself in permanent and total (perhaps even splendid) isolation,

92 Ibid., p. .80
 REPORTS OF U.N. SPECIAL COMMITTEES 331

and in all the U.N. agencies, is exposed to resolutions which

are passed by a majority, without any possibility of raising a

defence.
The result is that even the new system of appointing committees
is more negative than positive. We have said that investigations
of the facts by neutral experts is the first step towards judicial
proceedings, but only on the condition that both the selection
of the “neutral experts” and the basic decision of what and when
to investigate are in the hands of a person or body guided by
relevant considerations only. An investigation loses its legal and
moral value, and all its importance and effectiveness as an in-
vestigation, when it, too, is merely a link, another tool, in the
political war amongst states and blocs.
It is not only that the publication of the findings of and incom-
plete and unprofessional investigation may slander a state un-
justly accused—for that, one could argue, the state has only
itself to blame, in that it refused to cooperate with the commit-
tee of inquiry—but also that the credibility of these publica-
tions of findings by committees of inquiry will be irreparably
damaged if, instead of verified and correct facts, that which is
published on behalf of the committees and on their respon-
sibility, contains unverified, incorrect facts which are open to
refutation. What happened to the other forms of U.N. reports—
i.e. that no-one paid any attention to them—is what will hap-

pen to the publications of the findings of committees of in-

quiry if, from the outset, there is no guarantee that only the
truth, and the whole truth, appears in the reports. However, all
the signs point to the fact that no distinction will be made here
between true findings and those which can be refuted: every-
thing that a committee of inquiry reports will be published as
the universal truth that cannot be challenged—the reason for
this is, again, that the quest is not for truth, but rather, to
deliver a political blow to an opponent state, which, qua op-
ponent, is—either by coincidence or not by coincidence—both
the state accused and the guilty state.”
2 D. SHEFI

Annex—The Derbas Case

VY > 27 .

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 REPORTS OF U.N. SPECIAL COMMITTEES 333

Translation:

Office of the Governor General

Gaza Zone
Department of Health, Nasser Hospital
MN/12

Khan Yunis 14666

Subject: Patient Mohammed Mohammed Derbas

(Medical Report)

The above-mentioned patient was brought to the Nasser Hospital in

Khan Yunis on November ,14 ,1965 following a tubercular infection in
the left testicle and the sperm duct. An operation was performed to
excise the above, after agreement was obtained from the patient on
,21 1965 to have this operation performed of excision of
the left testicle and the left sperm duct. Once again agreement of the
patient was obtained.
The patient was placed in the hospital on another occasion on June ,7
1966 because of blood in his urine and was discharged from the
hospital on June ,14 .1966 It was recommended that he appear before
a medical commission for examination.

)dengis( Dr. Fawzi Abu Hasanein

Senior Medical Officer

Director of Hospital, Adei Hosni

Sa tame dome/ le
ps
alls
‫וט‬ L Jude,
334 D. SHEFI

Jlatzel ‫טש‬

3 py; Jl
. vil

>

Sie 5

otk ?~ S|
,

MALY leas
-

Translation:

Cairo, July ,28 1966

Medical Faculty, Cairo University

Department of Special Surgery

Dr.
Director of the University of Cairo Hospital
Greetings.
We have the honour to send you a report on the condition of the
patient Mohammed Mohammed Derbas, who was sent at the time by
the medical commission in Gaza with a request to report on his state.
First: Tests and special radiation of the kidneys were carried out
and. traces were found in them of previous infections.
Treatment is not susgical and not in the Department for
urinary tracts.

Second: It was found that an operation had been performed on the

patient of excising the testicles and sperm ducts and this
brought about his coming to the United Arab Republic for
an implantation of testicles, an idea which is theoretical
and not given to implementation.

Please accept the expressions of my esteem.

Di. Mohammed Sawfat
Associate Professor of Surgery of
Urinary Tracts

N.B. This is a faithful copy of the original as copied from the

patient’s file today, September ,17 .1969 Gaza Health Department,
Archives Clerk.
)dengis(
 CHAPTER IX

DEVELOPMENT OF OIL RESOURCES IN SINAI

Meir Rosenne*

A. INTRODUCTION

Israel’s grant of oil exploration rights in the eastern half of the

Gulf of Suez has given topicality to the otherwise academic question
of the rights of a belligerent occupant to State-owned natural resources
in occupied territory.
The issue has engendered an exchange of legal memoranda between
Israel and the an exchange of diplomatic letters addressed by both
Egypt and Israel to the UN Secretary General,? acrimonious debates
in UN bodies and a series of articles in learned Illustrative
of the interests involved is that one of these recent contains

a footnote “that they [the authors] and others advised Standard Oil
Company of Indiana on the matter treated in the article.”
Both Israel and Egypt have started from the premise that Egypt

Ambassador of Israel to France; formerly Legal Adviser at the Israeli Foreign

*

Office.
The views expressed in this article are the author’s and are not necessarily those
of Israeli official authorities.
- The US Department of State Memorandum of 1 October :1976 16 ILM 733 .)1977(
Israel Foreign Ministry Memorandum 1 August :1977 17 ILM 432 .)1978( These
Memoranda refer to other unpublished Memoranda.
‫כו‬ Letter dated 4 April 1978 from the Minister of Foreign Affairs of Egypt to the
Secretary General 3379/A( and Corr ;)1 Letter from the Permanent Repre-
sentative of Israel to the UN addressed to the Secretary General, dated 10
May 1978 .)3399/A(
5 Cummings, “Oil resources in Occupied Arab Territories Under the Law of Bel-
ligerent Occupation” )1974( J. Inter. Law and Econ ;533 Gerson, “Off-Shore Oil
Explorations by Belligerent Occupant: The Gulf of Suez Dispute” )1977( 71
AJIL ;725 Gerson, Israel, the West Bank and International Law, p. ;221 B. M.
Clagett and O. T. Johnson, “May Israel as a belligerent occupant lawfully exploit
previously unexploited oil resources of the Gulf of Suez”? )1978( 72 AJIL .558
* Clagett and Johnson, op. cit.
 336 M. ROSENNE

has sovereignty over Sinai and that Israel’s position is that of a bel-
ligerent occupant. In their legal memoranda both parties rely on the
laws of belligerent occupation, in particular the Hague Regulations.
Although Israel has stated that it is “debatable as to how far Article
III of the 1907 Hague Regulations (which deals inter alia with rights
in State property) is relevant and valid to the situation in Sinai,’
nevertheless Israel has proceeded to base its legal position on the
relevant articles of the Hague Regulations. Both parties have further
agreed that under both Egyptian law® and Israel law’ oil resources in
the ground are property of the State.
Here I intend to examine Israel’s rights during its occupation of
Sinai to exploit Egyptian State-owned oil in accordance with the
Hague Regulations.
The most extreme negation of Israel’s right to exploit the oil ap-

pears to be contained in UN General Assembly resolution that all

exploitation was 8.”lagelli“ However, none of the writers on the sub-
ject has adopted a similar position and their unanimous opinion is that
existing wells may be exploited. Even the Egyptian note to UN
Secretary General states that Israel has “usufructuary powers” with
Tespect to immovable property in occupied Egyptian
Where the Egyptian and Israel positions differ is in the right to exploit

new wells, the duty to respect existing oil leases, the limits to the
exploitation of existing wells and apparently the right of Israel to
grant commercial leases.

B. THE RIGHT TO UTILIZE OIL WELLS

Nowhere in the Hague Regulations is there any specific reference to

oil wells or even to mines. Nevertheless the commonly accepted article
considered to be relevant is Article 55 which states:

5 The Israel Memorandum of Law quotes Feilchenfeld, The International Economic

Law of Belligerent Occupation )1942( p. 6 on, this issue—
“Section III of the Hague Regulations applies expressly only to the typical
case of belligerent occupation where one belligerent has overrun a part of
the territory belonging to an enemy state, where both armies are still fighting
in the field and where no armistice or other agreement has been concluded.”
(Emphasis added.)
6 Law No. .66
7 Mining Ordinance, ,1925 in Drayton, Vol. II, p. .938
8 A/RES/32/161 of 19 December .1977
9 Above note .2
 OIL RESOURCES IN SINAI 337

“The Occupying Power shall be regarded only as administrator

or usufructuary of public buildings landed property, of rests, and

agricultural undertakings belonging to the hostile state, and si-
tuated in the occupied country. It must safeguard the capital
of such properties, and administer them in accordance with the
rules of usufruct”.

This rule is generally interpreted as including the right of the occupant

to utilize mines. The B.M.M.L., para ,610 comments that:

“The Occupant may, however, let or utilize public land and build-
ings, sell the crops on public land, cut and sell timber and work
the mines. But he must not make a contract or lease extending
beyond the conclusion of the war, and the cutting or mining must
not exceed what is necessary or usual. It must not constitute
abusive exploitation.” (Emphasis added.)

And US Army Field Manual on the “Law of Land Warfare”, para

,402 states:

“As administrator or usufructuary he (The Occupant) should

not exercise his rights in such a wasteful and negligent manner
as seriously to impair its value. He may, however, lease or utilise
public lands or buildings, sell the crops, cut and sell timber, and
work the mines. The term of a lease or contract should not ex-
tend beyond the conclusion of the war.” (Emphasis added.)

writes:

“As fruits of the public land, (The Occupant) may sell its crops,
cut and sell its timber and work its mines. Such exploitation must
not exceed what is usual or necessary, and msut not be abusive.”
(Emphasis added.)

And Stone in his Legal Control of International observes

that:

“Though (the usufructuary principle) perimts the Occupant to

let or utilize public land and buildings, sell crops on public land,
cut and sell timber, and work mines, such contract or lease must

10 Greenspan, p. .288
11 p. .714
 338 M. ROSENNE

not extend beyond the termination of the war.” (Emphasis

added.)

Article 55 refers to property “belonging to the hostile which

includes, as we have seen, mines and oil wells, and the Article re-
cognizes the right of usufruct in such mines or oil wells. There can
be no logic in claiming that Article 55 ceases to apply when the oil
is pumped, for such an interpretation would strip the right of usufruct
of all meaning or relevance. There can be no usufruct unless the mines

are worked and the oil is pumped; only then can the mine or oil well
“produce fruit”.

C. IS THIS RIGHT LIMITED TO EXISTING WELLS?

Article 55 makes no exception as to new oil fields and the onus of

proof that by implication it prohibits opening such new fields is on
the party that opposes such use. Neither is the right to usufruct, re-
ferred to in Article ,55 stated to be limited to existing mines nor is
there any mention there of any such limitation.
Both the British and US Military Manuals quote Article 55 as
referring to the working of mines without limiting it to existing mines.
Nevertheless it has been claimed’? that the term ”tcurfusu“ is to be
interpreted in accordance with the Civil law systems and that these
systems prohibit a usufructuary from developing new oil wells (or
mines).
A cursory examination of the Civil law system shows, however,
that there is no unanimity on the question of whether a usufructuary

can develop new mines. Clagett and Johnson write that “By the time
of Justinian, Roman usufructuaries had been authorized not only to
work mines that had already been opened by the original owners but
also to open new mines if such would not interfere with or would be

more profitable than cultivation of the The authors add,

however, that this rule emanated from the Roman misconception that
minerals in the ground renewed themselves. A number of later Civil
Codes did include a limitation of usufruct to existing mines. On the
other hand the Code of Saxony'* expressly permits the exploitation

12 For example, Cummings, op. cif., .560

13 Op. cit., .568
14 Article .609
 OIL RESOURCES IN SINAI 339

of new mines and it is followed by the German BGB which expressly

allows the setting up of “‘new installations for the extraction of stone,
gravel, sand, clay, peat and other components of the soil insofar as
the economic purpose of the land is not essentially
There is a clear inconsistency and to some extent arbitrariness in
claiming that the nature of usufruct necessarily implies no develop-

ment of new wells. An oil well or a mine, unlike a tree, does not grow
a periodic .”tiurf“ In time it will become exhausted. Accordingly the
proponents of the limitation theory should theoretically prohibit any
exploitation of mines or oil wells and permit maintenance work only.
Instead all of them are willing to allow exploitation of existing wells,
thus perimtting their eventual exhaustion.
Prohibiting the drilling of new wells may be a compromise to pro-
tect the eventual reversionary rights of the sovereign. Such rights,
however, are in fact protected by the interpretation given to Article
55 by the leading authorities on the subject, as requiring the duty to
refrain from “wantonly dissipating or destroying the public re-
sources”.1® “Jt must not constitute abusive “Such
exploitation must not exceed what is usual or The occu-
pant must “act like a bonus paterfamilias and limit its exploitation
to the enjoyment of its natural and legal fruits”.’®
This interpretation lacks the arbitrariness of the attempt to make a
distinction between existing and new wells. Such a distinction becomes
particularly arbitrary where, as is frequent, adjacent oil fields and
wells tap the same underground source. In fact one author* whose
general analysis is opposed to Israel’s position states on this particular
point:

“For a proper analysis, oil taken from areas where oil was ex-
ploited prior to the occupation (such as the Sinai} must be
distinguished from areas where oil was not exploited prior to
the occupation (such as the West Bank of Jordan)”.

15 Article .1037
16 M. Dougal and Feliciano, Law and Minimum World Public Order )1961( p. .812
17 BMML, para. .610
18 Greenspan, op. cit., p. .288
19 Schwartzenberger, International Law, Vol. Il, The Law of Armed Conflict )1968(

p. .248
20 Cummings, op. cit., p. .555
 340 M. ROSENNE

The term ”tcurfusu“ as used in Article 55 has been given a clear

meaning by the leading authorities. In such circumstances to attempt
to replace this meaning with an interpretation given it by some but
not all Civil law systems is unfounded. This would hold true even
if there were unanimity in the Civil law systems as to the meaning
of the term, a unanimity which does not exist.
Moreover, in international law a phrase used in an international
agreement (and the 1907 Hague Regulations are of course basically
such an agreement) are not commonly to be interpreted in accor-
dance with municipal law systems.
The Permanent Court of Justice in 1925 when asked to consider
the word ”silbaté“ in the Lausanne Agreement ruled?! that:

“The Court will now, in the light of these considerations, proceed

firstly to consider the meaning and scope of the word établis in
general, and, secondly, the question whether the situation con-
templated by this word should be determined with the aid of
the legislation in force in the two countries concerned...
From this point of view, therefore, it becomes necessary to con-
sider whether the Convention contains any express or implicit
reference to national legislation for the purpose of determining
what persons are to be regarded as .”dehsilbatse“ No express
reference is to be found; it remains to be ascertained whether in
regard to the matter before the Court, the Convention makes
implicit reference to national legislation .. .
Nor is there any indication that the authors of the Convention,
when they adopted the word which has given rise to the present
controversy, had in mind municipal legislation at all. Everything
therefore seems to indicate that, in regard to this point, the
Convention is self-sufficing and that the Mixed Commission in
order to decide what constitutes an established inhabitant must
rely on the natural meaning of the words as already explained”.

Again in 1950 when the South African Government claimed in the

International Court of Justice that the word ”etadnaM“ should be
interpreted in the light of national legislation the Court found in its
advisory opinion: 72

21 Exchange of Greek and Turkish Populations, PCIJ Series B-10, pp. 18 and .19
22 International Status of South West Africa )1950( ICT .127
 OIL RESOURCES IN SINAI 341

“The League was not, as alleged by that Government, a -nam‘

dator‘ in the sense in which this term is used in the national law
of certain States. It had only assumed an international function
of supervision and control. The ’etadnaM‘ had only the name
in common with the several notions of mandate in national law.
The object of the Mandate regulated by international far
exceeded that of contractual relations regulated by national law.
The Mandate was created, in the interest of the inhabitants of
the territory, and of humanity in general, as an international
institution with an international object—a sacred trust of civiliza-
tion. It is therefore not possible to draw any conclusion by
analogy from the notions of mandate in national law or from

any other legal conception of that law”.

Even Sir Arnold McNair who in his separate opinion disagreed

with the opinion of the Court states on this point:”

“The way in which international law borrows from this source

is not by means of importing private law institutions ,kcol‘ stock
and barrel’, ready-made and fully equipped with a set of rules.
It would be difficult to reconcile such a process with the ap-
plication of the ‘general principles of law’. In my opinion, the
true view of the duty of international tribunals in this matter
is to regard any features or terminology which are reminiscent
of the rules and institutions of private law as an indication of
policy and principles rather than as directly importing these
rules and institutions”.

The above position has been taken on the understanding that Article
55 of the Hague Regulations is the applicable article. It should be
pointed out, however, that there is precedent for the proposition that
oil in the ground is to be regarded as movable property having mili-
tary value, and therefore by analogy the first paragraph of Article 53
of the Hague Regulations would apply and the oil thus not be subject
to the limitations of usufruct set out in Article .55
Article ,53 paragraph ,1 provides that

“An army of occupation can only take possession of cash, funds

and realisable securities which are strictly the property of the

23 Ibid, .148
342 M. ROSENNE

State, depots of arms, means of transport, stores and supplies and

generally all movable property belonging to the State which may
be used for military operations”. (Emphasis added.)

In N.U. Da Bataafsche Petroleum Maatschappij v. War Damage

Commission* a majority in the Singapore Court of the Appeal held
that oil in the ground was immovable and not susceptible of direct
military use. However, Whitton J., in a dissenting judgment, argued
that the concept had to be interpreted according to the changing neces-
sities of warfare:

“If it is conceded that a belligerent is entitled to seize petrol which

is ready for immediate use, it seems to me it cannot be logically
maintained that he is not entitled to seize the crude material out
of which the finished products are created, since the protection
afforded private property by the Regulations is obviously limited
by the exclusion of what the signatories to the Convention pre-
sumably regarded as the legitimate necessaries of a belligerent
Occupant in the execution of his war effort, as the modern phrase
has it, and once it is allowed that a certain kind of property is a
necessity for the conduct of a war, there scarcely seems reason to
maintain that private interest can prevail in respect of the raw
material out of which the property is made simply because in such
circumstances extraction and processing have first to be carried

Authoritative legal opinion commenting on this case tends to sup-

port the dissenting judgment of Whitton J. McDougal and Feliciano
criticize the majority decision and refer to “the erronous nature of
this ruling’s contact with reality”. They go on to say that “the opinion
of Whitton J. )...( in this particular respect at least displays much
greater awareness of the exigencies of modern warfare”.?> Further-
more, the BMML states clearly “for example crude oil could be in-
cluded in the term ‘war There is both logic and precedent
in claiming that in modern conditions of warfare state-owned oil should

come under “stores and supplies” which may be used for military
operation and thus be seized by an occupying army.

24 )1956( 23 ILR .810

25 McDougal and Feliciano, op. cit., p. .818
26 Para. 597 note .7
 OIL RESOURCES IN SINAI 343

This approach is particularly relevant in the context of the Arab-

Israel dispute where the Arab States have openly declared that oil is

one of the weapons that they intend to use and have in fact used in
the context of their hostilities with Israel.2” Since the Israeli occupation
of the oil fields and the relevance of the 1907 Hague Regulations was
predicated on Egypt’s premise that it is at war with Israel, it becomes
clearly untenable to negate the importance of oil as a war material

or store. There is little clear precedent in the matter but in the case
of the US military occupation of Cuba, the US Attorney General con-
cluded that the US President as commander in chief of the army and

navy had the right to “dispose of mining and other property formerly
belonging to the Spanish Crown”.?8 In the case of the allied occupa-
tion of Germany the Directive of the US Joint Chiefs of Staff to the
C in C of the US Forces of Occupation was to seize State oil wells
and coal mines and to expand production of them in high
It must be added that although in both cases the Hague Regulations
(and their predecessors in the case of Cuba) were thought by the
occupier to be inapplicable, it is reasonable to assume that the US
measured its behaviour by such standards. In the case of Germany
the US is on record as accepting the standards of the Hague Regula-
tions.*°
It can be further added that prospecting for oil, if successful, en-
hances the value of the land on its being eventually restored to its
sovereign. The converse is also true; if over a long period, as in the

case of the present occupation of Sinai, oil exploitation has been

prevented, the development of the territory will have been delayed
for the same period. On the other hand, it could be argued, the dis-
placed sovereign might not wish for reasons of his own to receive the
land back with an enhanced value. Nevertheless on receiving the land
back with working oil fields the sovereign at the very least is not in

a position of being able to claim that its value has been depleted by
the development of these fields.

27 See Paust and Blaustein, “The Arab Oil Weapon—A Threat to International Peace”
in Economic Coercion and the New International Economic Orler, ed Lillich .)1976(
28 The Law of Civil Government in Territory Subject to Military Occupation by
the Military Forces of the United States ,notgnihsaW( .)1902
29 Van Oppen, Documents on Germany under Occupation 19451954 ,)1955( p. .25
30 )1950( 17 Selected Opinions of Office of the U.S. High Commissioner for Ger-

many, Office of General Counsel, .130

 4 M. ROSENNE

D. THE RIGHT OF ISRAEL TO GRANT COMMERCIAL

LEASES

Since it is not disputed that the occupier has the right to exploit
existing oil wells and on the assumption that the occupier has the
right to develop new wells, it follows logically that the occupier has
the right to grant concessions for such development. This was also the
position of a usufructuary under Roman Law. The reserve would
imply that the development must be carried out by a government

agency. There can be no grounds for that.

Stone writes: **

“And though it permits the Occupant to let or utilize public land

and buildings, sell crops on public land cut and sell timber and
work mines, such contract or lease must not extend beyond the
termination of the war”. (Emphasis added.)

The US Army Manual on Belligerent Occupation* states:

“An occupant may make contracts for the exploitation of im-

movable state property for the period of occupation. Such con-
tracts become inoperative on the termination of the occupation”.

In the Permanent Court of International Justice in the Lighthouse

Case between France and Greece, Judge Seferiadese in a separate
opinion stated: *

“Without going into the general legal aspects of the question, I

will examine more particularly the granting of leases or con-
cessions in respect of public property belonging to the State
whose territory is occupied.
Naturally, these learned writers do not mention Lighthouses; but
they have definitely decided the issue in the case of railways. I
will give some extracts, substituting the word ’sesuohthgil‘ for
;’syawliar‘ ,ellihcuaF( Vol. II, p. .)257
The occupying Power may have the operating of the lights for
the duration of the occupation. But he may not alienate the light-
houses, for he is not yet the owner, and he will only become the
owner if the conquest is definitive”.

31 Stone, op. cit., p. .714

32 The Law of Belligerent Occupation, J.A.G. School (Text No. )11 )1944( p. .220
33 PCIJ Series A/B ,62 pp. ,50 .59
 OIL RESOURCES IN SINAI 345

Consequently, and all the more certainly after the conquest

had become definitive, the occupying State—i.e. Greece, in this
case—could alone have had power to grant concessions.
Of course, the occupying State, when leasing an object, that is
to say, when granting concessions, is bound to respect acquired
rights, but only those that were acquired before the occupation.
For during the occupation—it is self-evident—the occupying
State alone enjoys the usufruct of the public property in the
territories which he occupies. All learned writers, or at least all
that I have read, are agreed upon this general principle”.

He added:

,revewoH“ if the preparatory discussions of the Hague Con-

ference and the terms of Article 55 of Convention TV concerning
the laws and customs of war on land are read in conjunction, can
it really be contended that, when that Article lays down that
the occupying State is the administrator and usufructuary of the
public property of the enemy State, that Article, at the same
time, deprives the occupying State of the above rights and
declares that they only pertain to the State that possesses the
sovereignty? In my opinion, if such an interpretation were cor-
rect, Article 55 would have to be considered as laying down rules
which flatly contradict one another.
Such a conclusion is inadmissible. When Article 55 of the Hague
Convention No. IV admitted the right of the occupying Power
to be the administrator and usufructuary of the public property
of the occupied State, its object was—it is true—to set a limit
to the powers of the occupying State—powers which are often
pushed very much further; but the Article certainly did not set
out to abolish those rights altogether, for then all administration
of occupied territories would become an impossibility. So when
it is contended that the Hague Convention does not allow any
rights to the occupying Power, and that all rights continue to be
vested in the occupied State, that—at any rate in my opinion—
is assuredly an erroneous view, both from the standpoint of fact
and of international law”’.

This judgment, although given in a separate opinion, was not on

this point contradicted by the majority decisions of the Court. It is
 346 M. ROSENNE

quoted with approval by a leading scholar and is the only clear in-
ternational authority on this issue. The rule allowing the occupier
to let or lease public property is reflected in both the British and US
Military Manuals.*4

‫ם‬. OFF-SHORE WELLS

The issue has also been raised as to whether the rules regarding the
exploitation of natural resources in occupied territories apply to off-
shore wells, as is the case in Sinai. It has been argued that the concept
of belligerent occupation is “exclusively one of land warfare” and not
applicable to maritime
There appears to be little support for such a contention. Gerson
writes that “it would be mistaken to assume that it (the Hague Regula-
tions) was intended to exclude the possibility of application of some
of their provisions to 508 81045 **.' 116 01105 in support, inter alia, para.
2 of Article 53 of the Hague Regulations which opens with “All
appliances, whether on land, at sea or in the air”. (Emphasis added.)
Clogett and Johnson, whose views generally tend to negate Israel’s
position, on this point:

It seems difficult seriously to deny that the territorial sea can be

occupied, as can land areas, by the establishment of control
thereover... Indeed it would appear reasonable to go further
than Gerson and to conclude that a portion of the continental
shelf may be occupied, even though the superjacent high seas
clearly may not.

As regards the continental shelf beyond Egypt’s claim of 12 miles

of territorial sea for Sinai, the 1958 Geneva Convention on the Con-
tinental Shelf sets out in Article 2 that:

.1“ The coastal State exercises over the continental shelf sov-
ereign rights for the purpose of exploring it and exploiting its
natural

34 See Schwarzenberger, op. cit., p. .323

35 See, for example, US Memorandum, pp. .748749
36 Op. cit., p. .728
87 ‫ק‬. 59.
 OIL RESOURCES IN SINAI 347

This text is repeated in Article 77 of the Informal Composite Nego-

tiating Text prepared by the Third UN Conference on the law of

the Sea.8 According to the International Court in the North Sea Con-
tinental Shelf Case®® the right to exploit the sea bed of the Continental
Shelf is an inherent right and would therefore apply to Egypt even
though it is not a party to the Convention. It was presumably in
exercise of these rights that Egypt promulgated in 1958 a decree
claiming exclusive rights over the sea bed of its continental shelf, and
proceeded to grant oil exploration rights in the
The part of the Gulf of Suez lying off the Sinai Coast up to the
median line has been in full and effective Israeli control since .1967
The situation was even further clarified after the 1973 war when
the median line along the Gulf of Suez was clearly delineated. This
full and effective control is illustrated by the fact that since 1967 no
oil drilling in the area has been carried out without Israel’s approval
and that drilling has in fact been carried out, without interference,
by oil companies having the approval of the Israel military authorities.
The assumption must be made that since the area is under military
occupation, such occupation will be governed by the general rules of
international law including the Hague Regulations.

F. LIMITS TO EXPLOITATION

Article 55 clearly, specifically and categorically allows the occupant

to enjoy the fruits of public property. No restriction is imposed as to
the purpose for which the income is to be used. This absence of
restriction is made all the more vivid when the Article is compared
to the other ”ytreporp“ articles.

Article :52 ...snoitisiuqeR“ shall not be demanded... except

for the needs of the army of occupation.
Contributions in kind shall as far as possible be paid for in cash;
if not a receipt shall be given and the payment of the amount
due shall be made as soon as possible”.
Article 53 .arap( :)2 ...“ generally all kinds of munitions of

38 A/CONF.62/WP.10 of 15 July .1977

39 1969 ICJ .22
40 Decree on the Continental Shelf, 3 September :1958 )1958( 13 Revue Egypt.

Dr. Inter. .406

 348 M. ROSENNE

war may be seized even if they belong to private individuals, but

must be restored and compensation fixed when peace is made”.
Article :54 “Submarine cables... shall not be seized or destroyed
except in the case of absolute necessity. They must likewise be
restored and compensation fixed when peace is made”.

The only restriction in Article 55 is that applying to usufruct. Once

the income is received by the occupant it can put it to whatever use
it sees fit.
Stone states explicitly that the occupant may sell lease or contract
the products subject only to the restriction against “abusive exploita-
The1863 Lieber Instructions to the US Army (Article )31
state in this regard “and sequesters for its own benefit all the revenues
of real property belonging to the hostile government”. And Feilchen-
feld writes* that:

“Despite the provision that requisitions must be in proportion

to the resources of the country it will appear under this vague
rule, even lawful requisitions contributions and fines may well
produce ruinous results. Moreover public property is excluded
from this whole type of protection with the exception of the
usufructuary rule for land and a few similar rules”. (Emphasis
added.)

and:

“There is no express provision under which such assets )cilbup(

once acquired may not be used for other purposes. Absolute

power of occupants over seized public chattels is an ancient
institution. In the absence of express provisions it would seem
hazardous to presume its limitations’’.

In the particular case of Sinai it could be argued alternatively that

the costs of maintaining the Israel Defence Forces in the area, as a
result of Arab aggression, and of administering the area far exceed

any income derived from the oil wells in question.

41 Op. cit., p. .714

42 Op. cit., pp. 14 and .53
 OIL RESOURCES IN SINAI 349

G. RESPECT OF EXISTING OIL LEASES

Under the Hague Rules the occupier is bound to respect valid leases
existing prior to the occupation. Israel in this respect has stated its
willingness to enter into negotiations with any company claiming that
it was granted an oil lease by Egypt prior to June %.1967
It has, however, been claimed that the absent sovereign has the
right to grant leases even during occupation and that such leases are
valid during the occupation.“ It seems that such a proposition is
incompatible with the right of an occupant to grant leases for the
period of the occupation, for then two states would each be entitled
to grant a valid concession for the same area to take effect at the
same time. It is also incompatible with the Roman law view whereby
the owner who has granted a usufruct retains only the nuda proprietas
during the period of the grant and cannot therefore transfer rights
to others.
The proposition would presumably be valid for all cases of public,
immovable property and would mean that although not occupying
them, the absent-sovereign could grant leases for use of land, both
residential and agricultural, railways, ports, canals etc., effective during
the period of occupation. That implies either a high degree of cooper-
ation between the absent sovereign and the occupant, a situation not
usually prevalent, or alternatively the complete economic standstill
of the economy as regards State property.
The writers and precedents cited above to the effect that during
and for the period of occupation the occupier may grant concessions

are clear authority that the absent sovereign cannot grant such con-
cessions during the period of occupation, for both rights cannot exist
simultaneously.
Even those who grant certain rights to the displaced sovereign
concede that:

“The wartime legislation of the disseised sovereign is invalid in

relation to the occupied territory in all matters which, while the
occupation lasts, are the legitimate legislative concern of the
Occupying

43 Inter alia in Israel Memorandum in 17 ILM .441

44US Memorandum, p. .20
45 Schwarzenberger, op. cit., p. .201
350 M. ROSENNE

As to what is the legislative concern of the occupant, a US authority

writes: *

“The application of these regulatory powers extends over prac-

tically all fields of life includes the whole field of economics and
finance... and the whole economic process, including produc-
tion, distribution, finance and consumption becomes subject to
permitted changes”.

H. CONCLUSION

On the assumption—for the purposes of this analysis only—that

the Hague Regulations were applicable to the Sinai (there were
doubts on this issue) the following would appear to be the position:
Article 55 of the Hague Rules permits a military occupant to enjoy
the fruits of State-owned natural resources. This right includes the
exploitation of oil wells.
Article 55 contains no prohibition as to the opening of new oil fields.
The right of usufruct granted to the occupant is interpreted by all
leading authorities as prohibiting waste or excessive extraction. No
authority refers to it as prohibiting reasonable exploitation of new
wells.
Alternatively, oil can be regarded as a material liable to seizure
under Article ,53 para. .1 Embargo on oil has been used by the Arab
States as a weapon in their hostilities against Israel.
The interpretation given in some Civil law countries, but not in
all, to the municipal law term of usufruct is not valid with regard to

an international law agreement.

The duty of an occupant is infer alia to maintain the economic
prosperity of occupied territory and this is met by a reasonable
development of new oil fields. Such development enhances the value
of the land.
The occupier, being entitled to work the mines and enjoy the
,”tiurf“ may also grant leases and concessions, for there is no logic

or precedent for allowing such reasonable exploitation to be carried

out by the occupier but not by a concessionaire on behalf of the
occupier.

46 Feilchenfeld, op. cit., p. .86

 OIL RESOURCES IN SINATI 351

Off-shore oil wells are subject to the same rights and limitations

as oil wells on land.

On the assumption that the occupier can work mines for the period
of the occupation, it is untenable to hold that the absent sovereign

can also grant concessions to work them during the period of oc-
cupation. The two rights are incompatible.
The occupier is bound to respect valid oil leases granted to foreign
companies prior to the occupation. This obligation cannot apply to
leases granted by the absent sovereign after the commencement of
the occupation.
 CHAPTER X

THE RELIGIOUS COURTS

IN THE ADMINISTERED TERRITORIES

Ya‘akov Meron*

The panorama of Religious Courts, which revealed itself to the

IDF in most of the territories which came under its administration

as a result of the Six Days’ War, was very similar to and partially
even identical with that in Israel itself. In the Gaza Strip the Moslem
and Christian Religious Courts are governed by the very same Pales-
tine Order in Council' which still applies to these courts in Israel.
In Judea and Samaria the 1952 Jordanian Constitution (Article 129
))2( purported to abolish the Palestine Order in Council but its new
provisions (Articles )104110 conserve very much of the former state
of affairs.?
The Palestine Order in Council never applied to the Golan Heights
which were prior to Syrian independence under the French Mandate.
However, even there clear traces are found of the 1333 Ottoman Law
of Procedure of the Moslem Religious Courts* which is still referred
to* in article 52 of the Palestine Order in Council and is still in force
in Israel, subject to modifications.5 This Ottoman Law of Procedure

* Senior Lecturer in Moslem Law. Advisor on the law of Arab countries, Ministry
of Justice, Jerusalem.
The views expressed in this article are the author’s and are not necessarily
those of any Israeli official authority.
Drayton, Vol. ,3 pp. .25692590 For the 1939 amendment, see below note .9
The major innovation in these articles is that the Christian Religious Courts which
under the British Mandate had a jurisdiction more restricted than the Moslem
Courts, were given jurisdiction as wide as that of the Moslem Religious Courts
(Article .)109

w Destur, The Official Ottoman Publication of Laws, Second Series, Vol. 9 -natsI(
bul ,)1928 pp. 483 ef. seq.
* Though clumsily, with a mistake in its date.
* See the Official Gazette, 1 August ,1919 cited in N. Bentwich, Legislation of
353
 ‫בב‬

354 Y. MERON

contains inter alia a definition of the Moslem Courts’ jurisdiction.

Similarly Articles 535 to 538 of Syria’s Code of Procedure, enacted
by the Legislative Decree No. 84 of 29 September ,1953 define the
jurisdiction of the Moslem Courts in that These theoretical
data had, however, no practical application in the Golan Heights,
because the IDF found no Religious Courts there at all.
Under Jordanian rule in Samaria and Judea the said Ottoman Law

was replaced by three successive Laws of Procedure of the Moslem

Courts,? but apart from minor modifications the Ottoman provisions
still prevail there.
In the Gaza Strip too there has been a change in form, through the
Law of Procedure of the Moslem Religious Courts, Law No. 12 of
,1965 enacted by the Egyptian Military Governor,® but the content, as
far as jurisdiction is concerned, remained essentially the same as
before.
The Christian Religious Courts in the Gaza Strip are theoretically
those listed in the Second Schedule annexed to the 1939 Palestine
Order in Council,® namely:

The Eastern )xodohtrO( Community

The Latin )cilohtaC( Community
The Gregorian Armenian Community
The Armenian )cilohtaC( Community
The Syrian )cilohtaC( Community
The Chaldean )etainU( Community
The Greek Catholic Melkite Community
The Maronite Community
The Syrian Orthodox Community

Palestine ,19181925 Vol. I (Alexandria ,)1926 pp. .464465

6 For more details, see R. Antaki, “La question du statut personnel en Syrie,”
)1970( Proche Orient, Etude Juridiques 232 et seq. (in Arabic).
7 Law No. 95 of ,1951 Official Gazette No. 1082 of 1 September ;1951 Law No.
10 of ,1952 Official Gazette No. 1101 of 1 March ;1952 Law No. 31 of ,1959
Official Gazette No. 1440 of 1 October .1959
8 Now published in Majmuat al-Qawanin al-Falastiniyya, ed. S. Dahduh, M. Sayu-
salem and I. Mihna, Vol. 10 (Jerusalem ,)1977 pp. .123162
9 Supplement No. 2 to the Palestine Gazette No. 898 of June .1939 Formerly the
same list appeared in the First Schedule annexed to the 1923 Succession Or-
dinance, see Drayton, Vol. ,2 Ch. .135 The list is cited in full in Jadai v. Chairman
of the Execution Office, Haifa )1955( 9 PD ,135 .137
 RELIGIOUS COURTS 355

In practice only two of these Christian Communities have Courts in

the Gaza Strip: the Greek Orthodox and the Latin )cilohtaC( Com-

In Judea and Samaria the 1952 Jordanian Constitution, in the same

article which repealed the Palestine Order in Council (article 129 ,))2(
also abrogated “all the amendments thereto”, including the 1939
Palestine Order in Council and the Second Schedule annexed to it.
It was, however, only in 1958 that the Jordanian legislator restored
official recognition to the Christian Communities in Judea and Sama-
ria by applying to them the 1938 Trans-Jordanian Law of the Non-Mos-
lem Religious Communities This was done by enacting
Law No. 9 of which extended the application of the 8
Trans-Jordanian Law to the so-called “Western Bank”. The original
Trans-Jordanian Law recognized only four Christian Communities:

The Greek Orthodox

The Greek Catholic

%In Egypt too, considerable doubt persists as to the exact number and identity of
the religious communities in that country. This continues to be so even now,
after the abolition of the Religious Courts by Law No. 462 of 1955 because the
law applicable in that country in matters of personal status continues to depend

on the religions affiliation of the parties. The bill preceding Law No. 462 of 1955
stated that the number of the religious communities having jurisdiction at that
time was .14 However, their identity has to be deduced from Ottoman law, by
virtue of the Egyptian Law No. 8 of 1915 which maintained in Egypt the legal
situation as it had been under the Ottoman Empire. See: S.A. Al-Deeb Abu-
Sahliyeh, Non-Musulmans en Pays de Le Cas de Fribourg
,1979 pp. .250251
10 Official Trans-Jordanian Gazette No. 594 of 2 April .1938
11 Jordanian Official Gazette No. 1366 of 1 February .1958
12 According to P.S. Colbi, Christianity in the Holy Land Past and Present (Tel
Aviv )1969 pp. ,189191 this community numbers in Judea and Samaria and in
Jerusalem some 19250 souls. This source is cited by D. Tsimhoni, Changes in the
Structure and Status of the Christian Communities in Judea and Samaria -ureJ(
salem ,)1971 an internal paper at the Truman Institute of the Hebrew University,

p. ,3 who also gives other sources which put the figure at about .40000 Tsimhoni
who relied, inter alia, on files of the Jordanian Secret Service, speaks .p( 40 note
)2 of a general census of members of this community which was held in the
sixties in preparation for community elections.
13In Judea and Samaria and in Jerusalem there are some 2000 members of this
community; Colbi, op. cit., p. ,190 Tsimhoni, op. cit. p. .52 A nomination of a
member to the Court of Appeal of this Community is mentioned in the Jordanian
Official Gazette No. 1984 of 11 February 1967 p. .212
46 Y. MERON

The Gregorian Armenian

The Latin )cilohtaC( Community

By Royal King Abdallah added to this list also the Arab

Evangelical Episcopal Community. Following the application of the
Trans-Jordanian Law to the West Bank the following communities
sought and obtained recognition:

The Maronite
The Evangelical Lutheran Church'*
The Syrian Orthodox Community’®
The Seventh Adventists Community”

A number of small communities recognized under the British Man-

date are not recognized by the Jordanian legislator.24 Not all of the

14Jn Judea and Samaria this community numbers some 300 and in addition there
are about 1200 in Jerusalem: Colbi, op. cit., p. .43
15 Colbi, op. cit., p. 190 estimates their number in Judea and Samaria at 8800 and
in Jerusalem at ;3800 Tsimhoni, op. cit., p. .52 In a decision No. 223 taken on
13 April ,1967 the Jordanian Council of Ministers approved a new composition for
this Community’s Court of Appeal. See the Jordanian Official Gazette No. 2006
of 10 May 1967 p. .725
16 Official Trans-Jordanian Gazette No. 927 of 16 November ,1947 published with
the original law in Majmuat al-Quawanin wal-Anzima, ed. M. Al-Bakhit, A. Al-
Hassan and M. Al-Qutb, Vol. ,1 pp. .458462 In this publication the Community
is called “The Protestant Anglican Community”. However, in the more recent
Majmuat al Qawanin wal-Anzima (Amman )1958 p. 112 the name appears as
given above. According to the Community Source, Colbi op. cit., p. 190 and
Tsimhoni, op. cit., p. ,65 the Community numbers 1400 members.
17 Royal Decree published in the Official Gazette No. 1338 of 1 July .1958 In
,1967 only about 100 persons belonged to this community in the West Bank and
another hundred in Jerusalem: Colbi, op. cit., p. .190
18 Royal Decree published in the Official Gazette No. 1427 of 10 June .1959 It is
claimed that 350 members of this community reside in Bethlehem, another 60
in Beth Sahur and Beth Jala, besides some 500 in Jerusalem and a small number
in Ramallah: Tsimhoni, op. cit., p. .76
19 Royal Decree published in the Official Gazette No. 1446 of 21 September .1959
About 900 people belong to this community in Judea and Samaria: Colbi,

op. cit., p. ;190 Tsimhoni, op. cit., p. .158 The composition of this Community’s
Court was renovated under art. 4 of the Law of the Non-Moslem Religious
Communities Councils, No. 2 of .1938 See the Jordanian Official Gazette No. 1964
of 20 November 1966 p. 2389 in fine.
20 Royal Decree published in the Official Gazette No. 1527 of 25 December .1960
21 Tsimhoni, op. cit., p. ,106 puts the number at five, though we know only of three:
the Armenian Catholic, the Syrian Catholic and the Chaldean )etainU( Com-
munity. Other minor communities such as the Copts were not recognized even
under the British Mandate.
 RELIGIOUS COURTS 357

Christian Communities maintain their own independent Religious

Courts. The Syrian Orthodox as well as the Maronites submit to the
Religious Courts of the Greek Catholic Community.”” The Copts, who
number only 200 people in Judea and Samaria and 500 more in Jeru-
salem, submit to the jurisdiction of the Religious Courts of the Greek
Orthodox Community.”
All these Religious Courts have enjoyed total autonomy which in
Judea and Samaria has reached the point of allowing the Moslem
Courts to ignore the existence of the Military Administration. That
has occurred on various occasions during the last decade or more.
For example in a claim before the Nazareth Civil District Court** for
damages against an insurance company the claimant relied on a wholly
hand-written document in Arabic to prove that she was the wife of
the deceased victim of the road accident in question. Perusal of the
document revealed that it purported to be an official contract of
marriage, drawn up in a village in the Administered Territories on
the pattern of the officially printed Jordanian forms, so that it included
the usual rubrics and even the heading “The Hashemite Kingdom of
Jordan”, though Jordanian rule had ceased eight years In
another case an American attorney addressed a question to the Israeli
authorities about the possibility of obtaining the annulment of a
marriage concluded before the Moslem Court in Ramallah between

an American girl and a Moslem who subsequently was found to be

already married to another woman with whom he had had four child-

ren. Here the contract of marriage, dated 22 November ,1974 was

again in the officially printed Jordanian form carrying once more the

22 Tsimhoni, op. cit., p. 106 note .2 The author points at publications in the Jor-
danian Official Gazette .oN( 1588 of 25 December 1961 and No. 1648 of 10
November )1962 nominating priests of these communities as judges at the Greek
Catholic Religious Court. These nominations were made under regulation 71 of
the Regulations of the Greek-Catholic Community cited in Jadai v. Chairman of
the Execution Office, Haifa )1955( 9 PD ,135 138 E-F.
23 Tsimhoni, op. cit., p. 106 note .2
24 Civil Case No. .12977
25 Under section 20 of the 1951 Jordanian Family Law a marriage document has
to be drawn up by a Qadi or his representative, and under section 17 the docu-
ment must be made in official form. The question whether the handwritten docu-
ment could be considered an official contract of marriage was material to the
case. In a different context Israel’s Supreme Court has held that “nobody claims
that the Jordanian Law of Procedure requires a power of attorney to be submitted

on printed form”: Liftawi v. Minister of Defence )1977( 31 PD )1( ,266 .269

 358 Y. MERON

heading “The Hashemite Kingdom of Jordan”. F ully aware of the

incongruity of this heading and of many other events of the same kind,
the Israeli Military Administration took no action in the matter.
The Civil .ei( secular) Court of Appeal of the West Bank, re-
constituted under the Israeli Military Administration, with its local
Arab judges, had, however, to occupy itself with the jurisdiction of
the Moslem Religious Courts. Thus in Hamuda v. Mar‘i® it set aside

a judgment of a Magistrate’s Court which had disqualified itself from

trying a claim made by a Moslem wife against her Moslem husband
concerning articles alleged to be part of her wedding outfit ( jihaz).
The Court recognized that questions relating to wedding outfits fall
under the jurisdiction of the Moslem Religious Courts?’ but pointed
out that the claimant had not represented the articles as being part of
her wedding outfit, and for that reason the Magistrate’s Court was
the competent forum to try the matter. The case reached the Court
of Appeal of the West Bank as an ordinary civil matter.
The Court of Appeal also exercises the jurisdiction of a High Court
of which under Jordanian Law belonged to the Court of
Cassation in Amman. However, much the same as at present the
Court of Cassation in Amman, when exercising such jurisdiction it does
not control the jurisdiction of the Religious For this purpose
the Jordanian legislator conserved the fair arrangement, formerly
found in Article 55 of the 1922 Palestine Order in Council, according
to which a Special Tribunal, constituted by members of the relevant
courts, has to be established to decide any conflict of jurisdiction®®

26 File No. ,2191972 Collection of Judgments, ,196772 ed. G. Al-Haj Mahmood

(issued by the Military Administration) pp. .463464
27 Article )28 in both the 1952 and the 1959 Jordanian Laws of Procedure of the
Moslem Religious Courts mention explicitly Jihdz (wedding outfit) among the
matters allotted to the jurisdiction of the Moslem Courts. It is true that this item
did not figure explicitly in the preceding 1951 Jordanian Law of Procedure, nor
in the 1333 Ottoman Law of Procedure of the Moslem Religious Courts, but it

can be shown that even under those Laws, that matter was entrusted to the
Moslem Court’s jurisdiction.
28 Article 4 of the Military Order No. 412 of 5 October :1970 Security Legislation
(consolidated re-print published by the Legal Adviser to the Headquarters of
the Israeli Forces in Judea and Samaria) Vol. ,1 p. .126
29 The Law Constituting the Civil Courts, Law No. 26 of 1952 (Majmuat al-Qawanin
wal-Anzima, Vol. ,1 p. )203 in defining the jurisdiction of the High Court of
Justice in section )103 makes no mention at all of the Religious Courts.
30 Section 11 of the above-mentioned Law Constituting the Civil Courts, .1952 This
section was, however, amended in 1966 by the addition of subsection )5( vesting
 RELIGIOUS COURTS 359

between Religious Courts inter se as well as between Religious and

Civil Courts. A very similar arrangement is provided for in section 16
of the 1938 Law of the Non-Moslem Religious Communities Councils,
the application of which was extended to Judea and Samaria in !*.1958
The main difference between the two arrangements is that while
according to the 1938 Law the Special Tribunal is to be nominated
by the Minister of Justice, according to the 1952 Law it is to be
nominated by the President of the Court of Cassation. On the basis
of the 1938 Law a petition was presented to the Military Governor
of Judea and Samaria requesting him to nominate a Special Tribunal
to try a case of conflict of jurisdiction created by the conversion to
Islam in 1977 before the Moslem Qadi of Nablus of a member of
the Latin Community, whose Christian wife was suing him for main-
tenance in the Religious Court of the Latin Community. The defen-
dant denied that Courts’ jurisdiction, claiming that the matter reverted
to the Civil Courts. The Military Governor acceded to the request by
nominating such a Special Tribunal.*?
The Religious Courts obviously have their own appellate tribunals.
The Law Constituting the Moslem Religious Courts, No. 41 of %
provides for the existence of a single Moslem Religious Court of
Appeal for the whole of what was then the Kingdom of Jordan. Its
seat is Amman, but “it may convene when necessary in
Since 6 June 1967 one bench of this Court of Appeal has in fact sat
permanently in Some hesitation as to its authority arose
out of an administrative order dated 2 August ,1969 addressed to the
Execution Offices in Judea and Samaria by the then Judicial Affairs
Officer and instructing them to refrain from executing judgments ren-

the Court of Cassation with jurisdiction to decide which decision is to be executed

in case of two conflicting court decisions: Temporary Law No. 100 of ,1966
Law Amending the Law Constituting the Civil Courts, Official Gazette No. 1961
of 2 November .1966
31 See above notes 10 and .11
32 Nomination No. 33 of 19 February .1978
33 Majmuat al-Qawanin wal-Anzima, Vol. ,2 p. .3
34 Regulation 2 of the Regulations of the Moslem Court of Appeal; Majmua, op. cit.,

p. .6
35 Any Qadi of first instance can be called upon to serve as a temporary member
of the Moslem Religious Court of Appeal, according to section 10 of the Law
Constituting the Moslem Religious Courts, ,1951 but the nomination must be
made by the Qadi al-Qudat in Amman.
360 Y. MERON

dered by the Moslem Religious Courts in Jerusalem. This measure

was probably the result of the refusal of the Qadis in Jerusalem to

accept nomination under the Israeli Qadis Law of ,1961 thus denying
validity to proceedings held and decisions given by them. Later, how-

ever, the administrative order was amended so as not to apply to

the Moslem Court of Appeal in Jerusalem.
Most, if not all, of the Religious Courts of Appeal, hearing appeals
in Judea and Samaria, sit in Jerusalem. The presence there also of
Religious Courts of first instance exercising jurisdiction inter alia in
Judea and Samaria has led to litigation before Israel’s High Court
of Justice. The first case related to a probation order made by the
Court of the Greek Orthodox Church, in which Halevi J. held that
“the Court does not function and cannot function on Israel’s soil as

a foreign court” (at p. This was not the opinion of Witkon J.

who in a minority judgment said: “To my mind there is nothing

wrong in a Religious Court functioning in Jerusalem with jurisdiction

vested in it under the law of another State, because it is possible to
limit the jurisdiction territorially to matters concerning that State”
(at p. .)280 It is the latter opinion which later prevailed in a case
of adoption ordered by the Court of the Gregorian Armenian Com-
This decision, in fact, confirmed the position steadily taken

36 Hanzalis v. The Court of the Greek Orthodox Patriarchal Church )1969( 23

PD )1( .260 The late Silberg J. took the same view. “I find it difficult to under-
stand how one court can serve two masters unless one shares his sovereignty
with the other” (at p. .)267 For criticism of the majority opinion in this case

see A. Shapira, “Israeli and Foreign Jurisdiction Subsisting Together—the Anomaly

of the Greek Orthodox Court in Jerusalem”, )1969( 25 Ha-Praklit ;456 Z. Cohen,
“Israeli and Foreign Jurisdiction Subsisting Together”, )1970( 26 Ha-Praklit ;32
A. Shapira, “More on Israeli and Foreign Jurisdiction Subsisting Together”, [bid., .34
37 Nassar v. The Court of the Armenian Gregorian Community )1976( 30 PD )2(
,44 ,48 per Landau J., Agranat P. and Kahn J. concurring. H.I. Goldwater, “Religious
Tribunals with a dual Capacity”, )1977( 12 Js.L.R. ,114 ,117 rightly observes
that “this position cannot be reconciled either with the doctrine of territorial
sovereignty or with the recognized exceptions to that doctrine’. In Jadai v.
Chairman of the Execution Office )1955( 9 PD ,135 ,138 the late Goitein J. held
that there was no state of war between Lebanon and Israel since, according to
Oppenheim—Lanterpacht’s International Law, Vol. Il, p. 596 “[a] war may be
terminated” inter alia by “belligerents abstaining from further acts of war, and
gliding into peaceful relations without expressly making peace through a special
treaty.”
Goitein J. construed restrictively the provision of section )22 )a( of the Trading
with the Enemy Ordinance, ,1939 which prohibits “any commercial, financial, or
 RELIGIOUS COURTS 361

by the then Israeli Attorney-General, which may explain a great deal

of the liberalism shown to the Moslem Court of Appeal acting in
Jerusalem under the distant auspices of Jordan, still in a state of war
with Israel.
Religious Courts enjoy the assistance of the Military authorities,
whenever requested. Thus on 20 November 1975 the Church Council
of the Evangelical Episcopal Community asked the Commander of
Judea and Samaria to confirm the appointment of the President and
members of its court of first instance.*®
Similarly in the Gaza Strip, following requests by the chairmen of
Rural Councils in the northern part of the Strip, a new Moslem
Religious Court was constituted at Jabaliyya to serve the local popula-
Earlier still a similar court started acting at Deir El-Balah.
Thus the total number of Moslem Courts of first instance in the Gaza
Strip is now five, as against only three, at Gaza, Khan Yunis and
Rafiah,*! under Egyptian military rule there. In addition, there is a
Moslem Court of Appeal which, in accordance with section 14 of
the above-mentioned Law of Procedure of the Moslem Religious

other intercourse or dealings with, or for the benefit of the enemy,” so that the
prohibition applies only to commercial intercourse and not to religious relations
(at p. .)143
Israel’s Supreme Court thus recognized the validity of nomination by the
Greek Catholic )etikleM( Patriarch sitting in Lebanon of members of this
Community’s Religious Court in Israel. Goitein J. added:
“If the State accepts courts of a given Community whose hierarchy is known
to be outside the state’s boundaries, then it must allow that hierarchy to act
according to the Community’s laws and customs. And if the State is in-
terested in preventing the Patriarch, who is found outside her boundaries, from
dealing with the Community’s affairs in this country, it must enact a law
preventing the same” (at p. .)144
38 This was granted in nomination no. 121976 of 15 February 1976 and again in

nomination no. .801976 See Coll P. & O. (Judea and Samaria).

39 The court began to function in April .1978 On 16 March ,1979 by Order No.
602 its judgments and other activities were validated retroactively.
began to function in April ,1976 though the ceremony of inauguration took
place only on 13 July ;1976 here also earlier judgments and other activities were
validated retroactively by the above mentioned Order No. .602
41 The legislative basis for the Rafiah Court under the Egyptian Administration is
not clear. Sections 2 and 5 of the Law No. 12 of 1965 (above note )8 recognize
only two Moslem Religious Courts of first instance, one in Gaza, with jurisdiction
extending from Beth Hanun in the north to Wadi Gaza in the south, and one
in Khan Yunis, with jurisdiction from Wadi Gaza in the north to Rafiah in the
south. No mention is made of any court at Rafiah. Nor does the Law provide
 362 Y. MERON

Courts was previously nominated by the Executive Council

but now by the Military Governor.
The salaries of the Qadis in the Gaza Strip are paid by the Military
Administration in conformity with local law and at a rate equivalent
to that of the judges of the civil courts. On the other hand the judges
of the Christian Religious Courts both in the Gaza Strip and in
Judea and Samaria, as in Israel itself, are paid by their own ecclesias-
tical authorities. The Qadis in Judea and Samaria have all continued
to receive remuneration, apparently through the Waqf (Moslem Relig-
ious Endowment), from the Jordanian authorities.
Both the assistance of the military authorities and the vitality of
the Religious Courts are perhaps best reflected in data concerning
the execution of their judgments. In the Gaza Strip it is still Ar-
ticle 56 of the 1922 Palestine Order in Council which governs this
matter,* while in Judea and Samaria, where this Article ceased to
apply on the repeal of the Palestine Order in Council in the 1952
Jordanian Constitution, the Jordanian Execution Law of **1952 regu-
lates the matter in a very similar way. It is indeed from the Execution
Offices in Judea and Samaria that the data annexed to this chapter
have been culled.45
The data call for a few explanatory remarks. ”,ecnanetniaM“
which accounts for nearly three fourths of the executed judgments
includes maintenance of wives, descendants and On the
other hand, the single case of “Maternity expenses” was classified as
such by the Execution Office at Nablus probably in deference to the

43 This Article reads: “The judgments of the Religious Courts shal] be executed by
the process and offices of the Civil Courts.” In Israel it has been repealed by
section )856 of the 1967 Execution Law.
44Law No. 31 of ,1952 Jordanian Gazette No. 1108 of 17 May .1952
Majmua, Vol. ,1 p. ,339
45 The author is indebted to Mr. Sami Gabay, Deputy Judicial Affairs Officer in
Judea and Samaria, as well as to the judges who preside over the Execution
Offices there, for the pains they have taken in collecting the data.
46 Roughly the same Proportion occurs in the “Cases decided by the Sharia Courts”
for the four years 1959 to :1962 see The Jordanian Statistical Yearbook No. ,13
,1962 p. .106
 RELIGIOUS COURTS 363

provisions of Moslem law. Medical expenses incurred by wives need

not be covered under Moslem law by husbands, because they do not

form part of the maintenance obligation.” Section 65 of the 1951
Jordanian Family Law deviated from the main current of opinion on
this point in Moslem by including these expenses within main-
tenance owed by the Moslem husband to his child. The classification
of these expenses separately from maintenance at Nablus shows that
everybody is not in agreement with the Jordanian reform. It is possible,
however, that in Execution Offices at other places in Judea and
Samaria maternity expenses as well as other medical expenses are
classified simply under ”ecnanetniam“ .)agafan(
The judgments of the Moslem Court at Jaffa in Israel, which were
executed at Hebron and Bethlehem, are most probably relief granted
to Moslem inhabitants of East Jerusalem. These Moslems, having
been deprived of the services of the Moslem Court of Jerusalem which
refused to accept nomination under Israeli law, address themselves
to the Moslem Court at Jaffa, which is the only court competent to
issue judgments in family matters, executable at the Execution Offices.
Above all it should be remarked that the executed judgments listed
above are only a fraction of the judgments given by the Moslem
Courts in Judea and Samaria. Probate and Succession Orders do not
appear because their execution is not carried out by the Execution
Offices but rather by the Land Registry Offices. Further, there are
matters which do not require execution at all either because the
parties comply voluntarily with the judgment given or because the

very nature of the judgment precludes the need for execution. The
latter is the case with judgments relating to repudiation of wives by
their husbands, where the Moslem Courts’ rule is merely declaratory
in the vast majority of cases. In the Gaza Strip where the population
is less than half of the population in Judea and Samaria, repudiations

47See Y. Meron, “Medical Treatment Viewed by Moslem Law” in International

Symposium on Society, Medicine and Law, ed. H. Karplus (Amsterdam )1973
pp. .4344
48In so doing the opinion of Ibn Abidin (died ,)1836 the last great Hanafi jurist,

was followed, but this opinion is open to criticism: ibid.

49 Under Jordanian rule, succession was by far the most frequent subject dealt
with by the Ecclesiastical Courts, sometimes four times greater in number than
maintenance cases before the Greek Orthodox Courts in 1959 and .1961 In
Catholic Courts the proportion is even greater: sce the Statistical Yearbook (above
note ,)46 p. .107
= ‫ה‬ 9

4 Y. MERON

dealt with by the Moslem Courts between April 1977 and March
1978 amounted to ,448 which is more than the total number of cases
listed In the same year 4299 Moslem marriages took place
in the Gaza Strip. It may reasonably be inferred that the number of
marriages in Judea and Samaria was more than double. Marriage,
however, does not involve normally any proceedings before the Mos-
lem Courts; they only need to be registered by registrars nominated
by the Courts.*
Judicial functions relating to the age of marriage, permissibility
of marriage and marriage impediments were in the Golan Heights
vested in “religious sages” to be nominated for these purposes by
the Military Government.” This provision still affects the ‘Alawis
who inhabit one village only in the Golan Heights. It applied mainly
to the Druzes, the bulk of the local population found by the IDF when
they entered the territory. As attested by the local Druzes, under Syrian
rule they had to go to the Moslem Religious Court at Quneitra, since

no Druze Religious Court had ever been established in the region

under Syrian Law No. 134 of 1945 which declared the independence
of the Druze Courts and defined their With the evacuation
of the Moslem population by the retreating Syrian force in June
,1967 the Moslem Religious Court too left the area, so that the

50 See the Annual Report of the Religious Affairs Officer who is responsible inter alia
for the Religious Courts in the Gaza Strip.
1919 Marriage and Divorce Ordinance ,notyarD( Vol. ,2 pp. ,903904
Majmua Vol. ,2 pp. ,127128 Majmua, ed. Dahduh, Sayusalem and Mihna, Vol.
,10 pp. )173174 does not mention the Moslem Courts role in nominating the
marriage registrars, but this is provided for in section 20 of the 1951 Jordanian
Family Law; the practice in Israel is the same.
52 Order No. 176 Concerning Performance and Registration of Marriages of 11
March ,1969 section ;6 9 CP & O )naloG( pp. .610611
53 Syrian Official Gazette No. 9 of 15 February .1945 This is further confirmed by
the Syrian 1961 Law of the Judiciary Al-Sulta Al-Qada’iya, Syrian
Official Gazette No. 12 of ,1961 pp. .)13241348 A Druze Court is mentioned (in
art. )35 amongst the “Courts of Personal Status” together with the Moslem
Courts .tra( )34 and the so-called “Spiritual Courts of the non-Moslem Com-
munities” .tra( .)36 This Law provides for no less than 25 Moslem Courts
throughout Syria, each composed of one Cadi only, except for those in Damascus
and Aleppo, where there are three Cadis in each. One Moslem Court was situated
at Quneitra, in the Golan Heights. However, both Quneitra and the whole of
the Golan Heights were outside the jurisdiction of the only Druze Court in Syria,
situated at Suweida, with jurisdiction over the Suweida province only. Thus the
only “Court of Personal Status” competent under Syrian law in the Golan Heights

was the Moslem Religious Court.

 RELIGIOUS COURTS 365

Druze population was left with no tribunal to administer justice in

matters of personal status. The first measure to remedy this deficiency

was Order No. 176 which provided for the nomination of marriage
registrars and vested the “religious sages” with certain judicial powers.
Re-establishment of the legally defective situation by which Druzes
had to submit to the Moslem Religious Courts was out of the question
for the Israeli Military Administration, if only because of the absence
of any Syrian Moslem Court in the area. The anomaly in relation to
Druzes was therefore remedied by the establishment of a Druze Relig-
jous Court under Order No. ,238 “Order Concerning the Establishment
of Druze Religious Courts” *°.)1975( This was followed by an amend-
ment to the Courts Order® which instituted an Execution Office in the
Golan Heights.
Statistics of the Court’s give an idea about its activities.
In 1977 the Druze Courts dealt with 34 cases of marriage confirmation.
These confirmations were sought by persons who had not previously
registered their marriages but now found it necessary in order to
obtain national insurance benefits. There were also 6 cases of repudi-
ation, 3 of guardianship, 5 of probate and sucession, 5 of main-
tenance, and another 4 of “various Under Syrian Law
No. 134 of ,1945 the Druze Courts had no jurisdiction in matters
of guardianship and custody, nor was dower explicitly mentioned

as a matter within their jurisdiction.

The source of authority of the Religious Courts in the Golan
Heights is the order promulgated by the Military Government. The

same suggests itself for the Gaza Strip, since the promulgation by the
Egyptian Military Governor of Law No. 12 of 1965 mentioned above.
The position in Judea and Samaria with regard to the Moslem Relig-
ious Courts is somewhat less clear. No doubt the intervention of the

54CP & O )naloG( pp. .11571160 Letters of nomination for Druze Qadis from
Israel to serve in the Golan Heights were issued by the Military Governor on
7 July :1971 5 Majallat al-Akhbar al-Darziya (Bulletin of the Druze Department
of the Ministry of Religious Affairs) pp. .123124 Local Druzes, from the Golan
Heights, were nominated to serve in the Druze Religious Courts on 31 January .1974
.PC55 & O. )naloG( pp. ,11611162 Order No. .239
56 N. Dana, The Druze, Community and Tradition, (Ministry of Religious Affairs,
Department of Druze Affairs, Jerusalem )1974 p. .96
57In 1973 there were also custody and dower cases. I am grateful to Dr. Dana
for the further information he has provided to update the data already found
in his book.
 46 Y. MERON

Jordanian authorities in the functioning of the Moslem Courts, by

paying the Qadis’ salaries and probably also by nominating new
Qadis, is possible only because the Military Governor has acted
liberally and tolerated it. The judgments rendered by these Qadis
could certainly not be executed by the official Execution Offices, were
it not for the Military Governor’s decision to honour these judgments.
The Military Governor treats the judgments of the Moslem Religious
Courts in Judea and Samaria as judgments of local courts competent
under local law. The best explanation of this attitude is the -tacidba“
ory” tendency which characterizes the law in all those countries which
continue the tradition, inherited from the Ottoman Empire, of relig-
ious jurisdiction in matters of personal This is a relic of
the Ottoman millet The extraordinary tolerance manifested
towards the Religious Courts in the territories under the administration
of the IDF and particularly towards the Moslem Courts in Judea and
Samaria fits ideally into the age-old scheme of autonomy for the
Religious Communities, which is a feature common to all countries of
the Fertile Crescent in the Middle East.

.G58 Tedeschi, “On the Problem of Marriage in the State of Israel” in Studies in Is-
rael Private Law )1966( pp. ,230231 discovers this characteristic in the 1922
Palestine Order in Council and even in the law of the State of Israel.
59 On the millet system, see K.S. Abu Jaber, “The Millet System in the 19th Century
Ottoman Empire,” )1967( 57 The Muslim World .212223 For some of its im-
plications for the present-day Middle East, see Y. Meron, “The ’snoitacilpmoc‘
Element of the Arab-Israeli Conflict,” )1977( 1 Indian Socio-Legal Jour. ,1 .1518
 RELIGIOUS COURTS 367

Bethlehem
Greek
1 Tul-Karem
Qalqilya
1
Grand
Total
297
11
1
Bethlehem
Appeal
Court
23
5
of Armenian
Greek
Orthodox
Orthodox Total
293
11
27
407
44
1
11
37Tul-Karem
Hebron
Ecclesiastical
Execution
Patriarchate
Ramallah
Community
Ramallah
1
2 1 Office
court 16
Jaffa
1 14
11
1
32
Ramallah
4 10
72
12 Nablus
82
20
1
51
8 Hebron
Jericho
12 47
Jenin
24
2410
69
3
1
8
Bethlehem
71
8 Expenses
Obedience
Court
Office
Qustody
Outfits
Execution
Maternity
ance
Mainten-
Moslem
Domestic
Custody
Wedding
and

Judgments
submitted
Execution
Religious
Samaria
Courts
Offices
during
Judea
1977
the
and
for
of
to
in
Bethlehem
27 Qalgilya
21
54
1
1
4
Tul-Karem
129
1
Salfit
41 1Ramallah
Ramallah 13

STATISTICAL
JUDGMENTS
ANNEX:
362363
above)
DATA
(see
pp.
—

Non-

28
44
415
21
3
7
3
 Jerusaiem >
0 |

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jJordan-Israel Armistice Lines 1949

 APPENDICES

Appendix A: Selected Judgments of the Supreme Court of Israel 371

Appendix B: Statistical Tables 442

Appendix C: Selected Proclamations and Orders 450

 APPENDIX A: SELECTED JUDGMENTS
OF THE SUPREME COURT OF ISRAEL

.1 The Case

HCJ 60678 and *61078

Landau D.P., Witkon J., Asher J., Ben-Porat J. and Bekhor J.

HCJ 60678 HCJ 61078

Sulayman Tawfiq Ayyub and Jamil Arsam Matawa and
Others Others
‫ל‬. ‫ל‬.
.1 The Minister of Defence .1 The Minister of Defence
.2 The Military Commander of
.2 The Military Commander of the Judea and Samaria Region
the Judea and Samaria Region .3 The Military Commander of
the Jenin Sub-district
.3 The Military Commander of .4 The Military Commander of
the Ramallah Sub-district the Nablus Sub-district

E. Khouri for the petitioners

G. Bach, State Attorney, and D. Beinish for the respondents

JUDGMENT
Witkon J.

The Petitions

The petitioners in these two cases are the owners of land in the
Judea and Samaria Region. The land of the petitioners in HCJ 60678
is situated in the area of al-Bireh, Ramallah Sub-district, close to the
Bet El military camp, and the land of the petitioners in HCJ 61078
is situated in the area of Tubas, Nablus Sub-district, not far from the

* )1979( 33 P.D. )2( .113

371
372 APPENDICES

Jordan Valley. Despite the difference between the two petitions, they
should be dealt with together for in both of them the petitioners com-
plain of the same matters: )a( seizure of their land by the respon-
dents; )b( denial of their right to enter upon and work their land; and
)c( civilian Jewish settlements that have been or are intended to be
established on their land. In the Bet El case the order nisi was con-
fined to the use of the land for purposes of Jewish settlement, whereas
in the Beka’ot case the respondents were also called upon to justify
the seizure itself and preventing the petitioners from cultivating their
land. Mr. Elias Khoury for the petitioners and Mr. Bach, the State
Attorney, have most commendably enlightened us in their thorough
pleadings.
The ownership and legal standing of all the petitioners are not in
dispute. In the Ber El case, there is no doubt that as early as 1970
the Military Commander of the Region issued a Requisition Order
in respect of the land (see Appendix R/1 to the Answer) and that in
accordance with that Order the petitioners were offered an annual
rent as compensation for the use of their property, which some of
them agreed to accept. It should be stressed that these petitioners did
not reside on the land nor cultivate it or draw their livelihood from
it, since it borders on an extensive area which already under Jordanian
rule served as a military camp and that is still its purpose. In the

summer of ,1978 however, it became apparent to the petitioners that

buildings intended for a civilian Jewish settlement were going up on
their land. They have produced evidence from which it can be con-
cluded that those responsible for this settlement activity, its initiators
and planners, are civilian administrative agencies of the Government
of Israel and not the Military Government itself which rules the area

as occupied territory. In the meantime, the settlement has been estab-

lished.
The position in the Beka’ot case is somewhat different. Here agri-
cultural land is involved which has always been cultivated by the
petitioners. In their petition they have claimed that they did not know
at all of the Requisition Order issued by the Regional Commander
until January 1975 (see Order Concerning Closed Areas (Area )22
(Judea and Samaria) .oN( ,)571 )1975 and that only in the summer
of ,1978 when they entered onto the land for cultivating and sowing
it, did they become aware that it had already been ploughed up by
the settlers and these proceeded to eject them. Actually, as we learn
 APPENDIX A: SELECTED JUDGMENTS 373

from the Answer, the petitioners knew of the requisition and prohi-
bition of entry two years before, in ,1976 and although they may have
continued to cultivate their land undisturbed, that was done, the res-
pondents submit, illegally. But we need not dwell on this point. The
fate of the petition is not decided by delay in presenting it or by any
infringement of the Order on the part of the petitioners.

The Submissions

The Order relating to Beit El (Land Requisition Order, ,E170 of

16 February )1971 states expressly that it is made because, in the
opinion of the Regional Commander, it is necessary “for essential and
urgent military needs.” No similar declaration is found in the Order
of 3 January 1975 relating to Beka’ot, but there can be no doubt that
since it is based on the Security Provisions Order (Judea and Samaria)
.oN( )378 ,1970 the motive here too must be military and security
need. In fact, in both cases, the respondents asked for their acts to be
justified on that account.
The petitioners, on the other hand, challenge these acts on two
grounds. They dispute the respondents’ contention that the requisi-
tioning and closure of their lands, and especially the use thereof for

purposes of Jewish settlement, serve genuine military needs; alterna-

tively they submit that even if that were so, the acts are still illegal
under the rules of international law, upon which they claim to be
entitled to rely in this court. It should be noted here that these are
two separate arguments which must not be confused. Thet act of a
military government in occupied territory may be justified from a
military-security aspect and yet possibly be defective from the inter-
national law aspect. Not everything that furthers security needs is
permitted under international law. The significance and application
of international law in a municipal court such as the present will
be dealt with by me at length in the sequel. Here it need only be
noted that the respondents argue that their acts are also irreproachable
in point of international law.
One more preliminary remark which should be remembered. A
court—as distinct from other institutions and bodies—relies on the
evidence contained in the affidavits of the parties. In the case of so
sensitive a subject as the present, it should be properly stressed that
proclamations, declarations and decisions in all their variety, do not,
 374 APPENDICES

whatever their source, come within our judicial purview except to

the extent that they are agreed or that evidence thereof has been
adduced. On the part of the petitioners, affidavits and documents
have eben submitted attesing to settlement activities on their land.
On the part of the respondents, affidavits by Major-General Orly,
Coordinator of Activities in the Administered Territories and Chief
of Operations in the General Staff, have been submitted which, together
with what the State Attorney had to say, constitute for us an auth-
oritative expression of the position of the Government. That is all.
Each of us obviously knows of recent political developments that have
occurred in our region, of the peace negotiations, of the aspirations
and hopes on the one hand and of the concern and Opposition on
|
|
|
the other, but a judicial body, it must be understood, does not occupy
itself with things that still lie in the future. That we leave to the
politicians. We deal with the rights of the parties according to the
existing situation prevailing between Israel and the Arab countries.
This situation is one of belligerency, and the status of the respondents
in respect of the occupied territory is that of an occupying power.

Military and Security Needs

Let us therefore begin with the petitioners’ submission that no military

or security need is in fact involved in the requisitioning and closure of
the land and putting it at the disposal of the Israeli settlement authorities
for establishing civilian settlements thereon. The argument of the
respondents that the same is required for urgent military needs is
thus, in the view of the petitioners, an empty one which conceals
the true reason. In this connection, Mr. Khoury tried to distinguish
between military needs in their precise sense, i.e. the needs of the

army stationed in occupied territory and their logistic requirements

and security purposes generally, and he contended that only needs of
the first kind come within the power granted by the Orders referred
to. In our opinion, there is nothing in this distinction. As I] just
said, the existing situation is one of beligerency, and the occupying
power is responsible for imposing order and security in the occupied
territory. It must also forestall dangers imminent in such territory to
the occupied territory itself and to the State. Warfare these days
takes the form of acts of sabotage, and even those who regard such
acts (which affect peaceful citizens) as a form of guerilla war, will
 APPENDIX A: SELECTED JUDGMENTS 375

admit that the occupying power is authorized and even obliged to take
all measures required to prevent them. The military aspect and the
security aspect are therefore only one.

Settlements in Occupied Territory

We said before that the petitioners complain of three things: the

requisitioning of their land, the closure thereof .e.i( denial of their
right to use it) and the establishment of Jewish settlements thereon.
The first two complaints may actually be dealt with briefly. It is
doubtful whether the petitioners would have turned to us, had the
Military Government confined itself to requisitioning the land and
(in the Beka’ot case) denying the petitioners’ right to cultivate it.
The petitioners in the Beit El case were also not ejected from their
residences. At this point I already find it appropriate to emphasize
that requisition or seizure for a consideration, as will later be explained,
does not mean confiscation. The petitioners’ ownership was not denied
at all. What prompted them to apply to us at this late stage was
the use now being made of their property for establishing civilian
Jewish settlements. This use, they argued, immediately invalidates
the argument of the respondents that the areas are required by them
for army and security needs. That is really their grievance. The
respondents have urged inter alia that if the requisition of the land
and its closure to the petitioners are not invalid, they have no reason
to complain of the use thereof. And if that is so, what standing do
they have? This reasoning, however, does not commend itself to us.
As the owners of the right of property the petitioners may ask what
is happening on their property.
This brings us to the core of the problem. The same problem al-
ready occupied this court in 1973 in Abu Helou vy. Government of
Israel )1973( 27 P.D. )2( .169 There, land in the Rafiah Approach
region was requisitioned by order of the O.C. Southern Command
and the Military Commander of the occupied territory. Right of entry
of the Beduin on the land was denied or restricted and Jewish settle-
ments were inter alia established. A petition by the Beduin (or their
representatives) was dismissed after all the judges who heard the

case accepted the respondents’ plea that the steps taken by the
Military Government had been necessary to protect the region from
terrorist onslaughts. Each judge in these proceedings gave his own
376 APPENDICES

reasons but all agreed over the Army’s power to assess the security
situation in a given area and its discretion to choose the means

necessary to meet trouble. This power, we said, is vested in the

military, and before interfering in its exercise thereof the court must
be convinced that the power was misued and as a pretext for other

purposes.
Mr. Khoury, for the petitioners, contended that in the Rafiah
Approach case the area had been notoriously unsafe, whereas here,
both in the Tubas and in the Ramallah region, everything is quiet
and peaceful and there is nothing to fear. On this, the Presiding Judge
has already observed during the hearings that there is no better remedy
for illness than its prevention in good time and that it is better to
detect and frustrate terrorism before it is carried out. In any event,
Major-General Orly’s affidavit leaves no doubt that the two areas
in which the petitioners’ land was requisitioned are in sensitive stra-
tegic locations. One of them lies on the axis of the crossing from
the Jordan to the heart of Samaria, the other at a crossroads near an

army camp. It is difficult to assume that an occupying power would

leave control of such areas in the hands of elements likely to be
hostile.
Jewish settlement also came up in the Rafiah Approach case, but
only I deemed it necessary to address it in my judgment. I said:

Clearly, the fact that the whole or part of this land is intended
for Jewish settlement does not deprive the act as a whole of
its security character. The security considerations which were
argued reviewed in detail in the judgment of my learned colleague

were not refuted or exposed as spurious and a camouflage for

other considerations, when Major-General Tal himself. stated
that the area (or part thereof) was intended for Jewish settlement,
such settlement too being, in this case, a security measure.

At the end of my remarks I summed up by saying that the consi-

derations were genuine security considerations and I stated: “They

were such even if we take into account the undisputed fact that
Jewish settlement is involved in action taken to ensure the security
of the territories and the State.” Several years have since passed
and it is not impossible that this needs to be re-examined periodically.
Nevertheless in spite of the well-based arguments of Mr. Khoury I
have seen no reason to change my mind.
 |
|

APPENDIX A: SELECTED JUDGMENTS 377

First, it should be remembered that where the law empowers some

authority to carry out an act for a defined purpose and the act is
in fact carried out, truly and honestly, for that purpose, the act does
not lose its legality by reason only that the purpose defined by law is
accompanied by an additional purpose. The additional purpose may
raise doubt whether the act was in fact carried out for the statutorily
defined purpose but it is not necessary to say that the additional

purpose was the only one that prompted the authority to exercise its
power and that the statutory purpose was put forward merely by
way of camouflage. Not infrequently do we come across a situation
where some authority, e.g. a local council, grants or refuses to grant

a citizen a licence and gives two reasons for so doing, of which one
is within and the other outside the scope of the enabling law. If the

reason justifying what it did is advanced honestly and found to be

based on the evidence, I would not consider the other, the irrelevant,

reason as ground to invalidate what was done.

The main thing, however, is that, as regards the pure security
aspect, it carinot be doubted that the presence in occupied territory
of settlements—even ”nailivic“ settlements—of citizens of the oc-
cupying power contributes appreciably to security in that territory
and makes it easier for the army to carry out its task. One does not
have to be a military and security expert to realize that terrorist
elements operate more easily in an area inhabited only by a population
that is indifferent or is sympathetic towards the enemy than in an

area where there are also persons likely to look out for them and
to report any suspicious movement to the authorities. Among the
latter, terrorists will find no hideout, assistance or supplies. The
matter is simple and needs no elaboration. Let us mention only that,
according to the affidavits of the respondents, the settlers are subject
to army control, either formally or by the force of circumstances.
They are there by virtue and with the permission of the Army. I
therefore still adhere to the view I held in the Rafiah Approach

case that, as long as a state of belligerency exists, Jewish settlement

in occupied territory serves actual security purposes.

The Position under International Law

So much for the question of the legality of the acts of the respon-
dents from the point of view of municipal law, ic., military law
 378 APPENDICES

existing in the occupied territory. But, as I have said, the petitioners

based their petitions also (and perhaps mainly) on international law
dealing on the one hand with the right and duties of the occupying

power in occupied territory, and on the other with the rights and
duties of the inhabitants of such territory. What I have in mind are
two international conventions: the 1907 Hague Convention Concerning
the Laws and Customs of War on Land (Fourth Convention), ar-
ticles )g(23 and ,46 and the 1949 Geneva Convention Concerning the
Protection of Civilian Persons in Time of War, articles 49 and .53
It is not disputed that the petitioners are protected persons within
the meaning of this term in international law.
The first question, however, which we have to address is whether
the petitioners as protected persons may themselves claim their rights
under these Conventions in a municipal court of the occupying power

or whether only states, parties to the Conventions, are competent to

claim the rights of the protected persons, and this clearly on the
international level alone. The answer to this question depends, as is
known, on the answer to another question, whether a provision of

an international convention which it is desired to enforce has become

part of the municipal law of the state whose court is asked to deal
with the issue or whether that provision remains the term of an
agreement merely between states and has not been incorporated into
municipal law. In the first case, we speak of customary international
law, recognized by the municipal court so long as the term is not
in conflict with some provision of the municipal law itself, and in the
second case we speak of conventional international law, binding, as
I have said, anly on states inter se.
These questions, too, arose in the Helou case, and the matters I
mentioned in the last paragraph were carefully explained in the judg-
ment of my esteemed colleague, the Deputy President, and in my
own judgment. My colleague’s approach differed from mine in only
one respect. According to him, in view of counsel for the State
agreeing to have the activity of the Army reviewed from the point
of view also of the said international law, he found no need to decide
whether we would have been competent to do so were it not for such
agreement, and he reviewed that activity and it passed this test as
well. On the other hand, I thought that if the Conventions had not
become part of municipal law, it would be neither right nor desirable
to deal with it even with agreement of the parties. In my opinion,
 APPENDIX A: SELECTED JUDGMENTS 379

it is not our function to assume the role of arbitrators or, as I would

add today, of professors of law expressing a view the value of which
is, in actuality, purely academic.
Nevertheless before I refrained from considering the acts of the
Army from the point of view of the said provisions of the Hague and
Geneva Conventions, I had to be satisfied that they are not to be
regarded as customary international law but only as conventional
international law, and in fact I so though them on the strength of
three judgments of this court: Steinberg v. Attorney-General )1951(
5 P.D. ,1061 ,1066 Al-Muqaddasa v. Minister of Defence )1972( 26
P.D. )1( ,574 580 and Abu al-Tin v. Minister of Defence )1973( 27
P.D. )1( ,481 .485 In the first of these precedents the provisions of
international law were dealt with in general but in the two others
the Hague Convention and the Geneva Convention were dealt with
expressly. In the opinion of the judges who gave judgment, both
Conventions are in the nature of conventional international law and

were therefore not to be invoked in an Israeli municipal court.

In the meantime, Professor Yoram Dinstein had published his
instructive article “The Judgment in the Rafiah Approach Case”, 3
Iyunei Mishpat ,934 in which he explained that a difference exists
between the two Conventions. The Geneva Convention falls under
conventional international law (and has therefore not become part
of the municipal law) whereas the provisions of the Hague Convention

are different: they are merely intended to give expression to law

that is in any event common to all enlightened nations and are therefore
regarded as customary international law. In the wake of this ,2111016 1
reconsidered the matter, and I am now persuaded that the Hague
Convention is accepted as customary law under which actions may
be brought in a municipal court; this emerges from Schwarzenberger
International Law, Part Two, ,)1964( pp. 164 ef seg.; see also von
Glahn, The Occupation of Enemy Territory ,)1957( p. .11 It is
otherwise with the Geneva Convention. Schwarzenberg writes .p( :)164

As in relation to other codifications of the laws and customs

of land warfare, so in relation to the law of belligerent occu-
pation, the question arises whether these treaty provisions are
merely declaratory of international customary law or constituic

a development of such rules and, thus, are bidning only on the

parties to these conventions.
 380 APPENDICES

And the learned author continues on p. :165

The question whether Geneva Red Cross Convention IV is

declaratory or constitutive is not settled conclusively in the
Convention. It is merely stated that the Convention is -elppus“
mentary” to the corresponding sections of the Regulations of
1899 and .1907 Some of its provisions are no more than attempts
to clarify existing rules of international customary law. This is
probably true in particular of those Articles in Section I of
Part III of the 1949 Convention in which a number of require-
ments of the standard of civilization, such as the prohibition of
the taking of hostages, are codified. The same applies to the
prohibition of the deportation of inhabitants of occupied terri-
tories. To the extent, however, to which existing legal duties of
Occupying Powers are not merely elaborated, but enlarged, the
Convention must be treated as constitutive and applicable only
between the parties.

Counsel for the petitioners drew our attention to a commentary on

the Geneva Convention by Dr. Pictet and other experts; he also relied

on an article by Pictet, “Humanitarian Law and the Protection of

War Victims,” published in .1975 In the commentary, I have found

no expression of opinion, one way or the other, as to whether this

Convention, like the Hague Convention, is also considered customary
international law. The remarks, ibid., at the bottom of p. ,279 about
the Geneva Convention—which is the corner-stone of the petitioners’
plea that Jewish settlement in occupied territory conflicts with inter-
national law—relate to the expulsion of population from occupied
territory and not necessarily to the transfer of it to other residents.
Having in mind the test laid down by Schwarzenberger at the end
of the passage above-quoted, we see Clearly that the provisions of
the Geneva Convention regarding the transfer of population from or
to occupied territory do not come under already existing law. They
are intended to enlarge, and not merely clarify or elaborate the duties
of the occupying power.
We have also considered Dr. Pictet’s article which was published
long afterwards. The author is undoubtedly inclined to regard the
provisions of the Geneva Convention as customary international law
because otherwise, as we have already seen, the enforcement of the
rights protected by the Geneva Convention involves very difficult trial
 APPENDIX A: SELECTED JUDGMENTS 381

problems. But whereas the author (at p. )22 poses the question
explicitly:

Here we must consider a major problem, even though lack of

time prevents us from dealing with it as it deserves; does
humanitarian law confer rights on individuals direct or only

on the States of which they are nationals?

no answer is to be found in the sequel to the effect that the Con-

vention indeed conferred rights directly on protected persons.

Interim Summary

The upshot of what has so far been said is that we must deal with
the submissions of the petitioners in so far as they rely on provisions
of the Hague Convention, regarded as customary international law,
but that there is no occasion for this Court to consider the submissions
based on article 49 of the Geneva Convention. The discussion is thus
confined to the question whether the respondents infringed international
law when they requisitioned the land of the petitioners and prevented
them from using it. Their complaint regarding the establishment of
Jewish settlements on their land does not, in point of international
law, rest on the Hague Convention but on the closing passage of
article 49 of the Geneva Convention, which reads as follows:

The Occupying Power shall not deport or transfer parts of its

own population into the territory it occupies.

It should be noted here that the respondents strenously deny the

petitioners’ plea that this provision applies to the case before us.
But, as I said above, we cannot decide this question, and I therefore
refrain from expressing any opinion.

Requisition of the Petitioners’ land under the Hague Convention

The following are the provisions of the Hague Convention which

the petitioners plead were infringed by the respondents:

Article .23 — In addition to the prohibition provided by

Conventions, it is particularly forbidden:
382 APPENDICES

)g( to destroy or seize enemy property, unless such destruction

or seizure is imperatively demanded by the necessities of war.

Article .46 — Family honour and rights, individual life, and
private property as well as religious convictions and worship,
must be respected. Private property may not be confiscated.

The answer of the respondents is that the petitioners’ property

was not confiscatéd but that the use thereof was requisitioned in con-
sideration of an offer to pay rent. In their submission this is a
requisition lawful under article 52 of the Hague Convention. Here

a passage from Schwarzenberger .p( ,)269 which elucidates the dif-

ference between seizure and requisition, may properly be quoted.

The scope and character of requisition becomes further apparent

from its juxtaposition with seizure under Article 53 of the
Hague Regulations. Ratione personae, seizure extends to prop-
erty of the State and that of private persons. Requisition, however,
is limited to the property of private persons and local authorities
in occupied territories. Ratione materiae, the emphasis in seizure
and requisition is on movables, but, in the case of requisition,
the wording of Article 52 is sufficiently wide to include immov-
ables.

There is manifestly a clear distinction between confiscation (which

is expropriation, without consideration, for an unlawful purpose) and
requisition which in the case of immovables requires the owner to
permit the use of his property for a consideration but does not deprive
him of his ownership. According to counsel for the State, the act of
the Military Government must be deemed to be the latter. If that
is so, I am satisfied that it does not conflict with articles )g(23 and
46 of the Hague Convention. On the contrary, article 52 of the said
Convention expressly permits the occupying power to require of the
population things in specie and services for military needs. Von Glahn

says in this connection .p( :)186

Under normal circumstances an occupant may not appropriate

OF seize on a permanent basis any immovable private property,

but on the other hand a temporary use of land and buildings
for various purposes appears permissible under a plea of military
necessity.
 APPENDIX A: SELECTED JUDGMENTS 383

As for the question of how to treat land which the army does

not need for its own requirements but should also not be left in the
possession of the owners in case is serves enemy purposes, it is

proper to quote a further passage from von Glahn .p( :)186

The Hague Regulations fail to cover a rather important aspect

of private property: the problem of what to do about private
property owned by legal or real persons and used against the
interests, and possibly even against the safety, of the occupant.
Common sense would appear to dictate the need for preventive

measures by the occupant against such use of private property

by its owners.

In view of the location of the requisitioned land in areas deemed

sensitive from the viewpoint of security, as explained above, it seems
that the acts of the respondents in this regard as well are justified.

Summary and the Problem of the Political Question

I have thus reached the conclusion that also from the point of view
of the customary international law expressed in the Hague Convention
the petitioners are not entitled to the relief they asked from us. Before,
however, concluding, I wish to say something about the further sub-
mission of the respondents that the question posed to us is not
justifiable because it is to be dealt with in future peace negotiations
and that a court does not deal with political questions within the
province of the government. I have not in the least been impressed
by this plea. It is not the place here to reopen the eternal debate on
the bounds of justiciability in political matters. Clearly, in matters
of foreign policy—as in a number of similar matters—decision rests
with the political and not the judicial authority. On the assumption—
not upheld in this case—that a person’s property has been unlawfully
impaired or denied him, it is difficult to believe that the Court will
withhod its assistance because his right may arise for discussion in
political negotiations. This plea had not added weight to the sub-
missions of the respondents, which, as stated, contains a conclusive

answer to the arguments of the petitioners.

In the light of the above, I propose to set aside the order nisi
and interim orders.
 384 APPENDICES

Landau D.P.

I concur with the substance of the opinion of my esteemed col-

league, Witkon J. Without derogating therefrom, I wish to expand it

on a number of matters which, to my mind, deserve notice and

emphasis although they have already been partly mentioned in my
colleague’s judgment.
Let me begin with Beit-El where the petitioners did not obtain an
order nisi to set aside the Requisition Order made as early as ,1970

even if only because after eight years the Order can no longer be
attacked in this Courts. The hearings were thus confined to the
application for relief against the establishment of a civilian settlement
in the requisitioned area and peopling the buildings of the settlement
with Israeli nationals or residents. As my esteemed colleague explained
this petition should be dealt with under two heads. One is Mr. Khoury’s
application to void the act of the respondents on the ground that
it was not required for military needs but on the contrary the very
establishment of a civilian settlement demonstrated that the area
where it had been set up was not required by the Army; it was also
noted that until the civilian settlement was established that part of
the requisitioned area was outside the fence of the military camp.
The second head concerns international law which, according to Mr.
Khoury, forbids the establishment of a civilian settlement in occupied
territory and the transfer of civilian population of the occupying power
to such territory; even if there is no other precedent in international
law for the use made by the respondents of part of the requisitioned

area. I shall comment on each of these two points in turn.

It is not disputed that if the establishment of the settlement does
not serve military needs it is not justifiable under Israeli municipal
law, for the Requisition Order itself was made because, as it states
at the outset, the Military Commander was of the opinion that the
requisitioning of the whole area on which Beit El camp stands and

on the fringe of which the civilian settlement has now been established,
is required for essential and urgent military needs. In this respect, it
will be as well to quote from Major-General Avraham Orly’s affidavit
in reply. In paragraph 16 he deposes:

...)a( The respondents submit that the establishment of the

settlement in the area of Beit El camp is not only not inconsistent
with but actually serves military need, as part of the Govern-
 APPENDIX A: SELECTED JUDGMENTS 385

ment’s concept of security, which bases the security system inter

alia on Jewish settlements. According to this concept, all Israeli
settlements in areas occupied by the IDF are part of the latter’s
regional defence system. Moreover, these settlements are most
highly classified in the framework of that system, a fact which
is expressed in allocations of manpower and funds. In times
of tranquillity, these settlements mainly serve the need for -erp“
sence” and control in vital areas, for maintaining observation
and the like. Their importance increases particularly in wartime,
when the regular military forces are generally moved from their
bases for operational needs and the said settlements form the
principal element of ”ecneserp‘“ and security control in the areas
in which they are located.
)b( Beit El camp is situated in a place of great importance from

a security point of view. This is evidenced by the fact that it

was previously a Jordanian camp.
The settlement itself is on an elevation commanding the vitally
important junction of the longitudinal Jerusalem-Nablus route
and the transverse route from the Coastal Plain to Jericho and
the Jordan Valley. In addition, the site controls infra-structural
systems ,retaw( power, communications) of great importance to
large areas. For these reasons, the place was selected for the
establishment of the settlement of Beit El. Moreover, for the
said reasons and because the settlement of Beit El is part of
the IDF regional defence system, the Defence Establishment
intends to construct a line of fortifications in the settlement.
Mr. Khoury did not attempt at all to challenge the facts mentioned
in this passage. Against the professional military view expressed therein,
that the establishment of a civilian settlement at the place has con-
siderable military significance of its own and that the settlement fits
into the IDF’s regional defence schemes, Mr. Khoury alleged that all
this was not sincerely affirmed but was merely intended to mask the
true intention of settling Jews in Judea and Samaria to achieve national
and political goals. Mr. Khoury further argued that the military
authorities are not acting in this matter on their own discretion but

are merely implementing a policy decided upon by the Israeli Govern-

ment or, more exactly, by the Ministerial Committee which decides
on settlement in Judea and Samaria.
My opinion, like that of my esteemed colleague, is that these sub-
386 APPENDICES

missions should be rejected. In the Rafiah Approach case I explained

what I regarded as the source of the power of this Court to control
the acts of the Military Government and the source of the power of
the Military Government itself under Israel’s municipal law. I also
expressed my views as to the extent of this Court’s interference in
such acts under international customary law. I refrained from dealing
with the legal aspects of settlement for security purposes outside the

area of jurisdiction of the State because there were as yet no Jewish

settlements in closed areas. But my learned colleague dealt also with
this has quoted in his judgment the remarks he then
made. Here the question arises directly and I therefore say that my
colleague’s observations in the Rafiah Approach case commend them-
selves to me, and in the light thereof I accept the detailed explanation
given by Major-General Orly in para. 16 of his affidavit, cited above.
Indeed, as the State Attorney, Mr. Bach, said in reply, it is common
knowledge that different sections of the public in the State have
different views on the importance of Jewish settlement in Judea and
Samaria: some reject it absolutely and some approve it as expression
of the political view that no part of the Land of Israel should be closed
to Jewish settlement. And there are some who stress the military
aspect of Israeli control of strategically important places in Judea
and Samaria for the effective defence of the territory of the State;
these are again divided into those who are ready to be content with
control of the Jordan Valley and the foot of the hills above it and
those who think that effective control of the ridge is also required.
The reasons set out in Major-General Orly’s affidavit bear witness
to the last-mentioned viewpoint, and I have no cause to doubt that
he presents this stand honestly and not in order to camouflage other
views. Nor have I ground to think that these reasons are merely an

ex post facto attempt to justify acts originally done for other reasons.
I presume that on establishing the civilian settlement of Beit El those,
whose spokesman Major-General Orly is, first gave thought and
military planning to the act of settlement. It has repeatedly been
stressed, also in Abu Helou, that interference by this Court in the
military considerations of the Military Government is very limited,
and a judge will certainly as an individual hold back from substituting
his own views about political and security matters for the military
considerations of those entrusted with the defence of the State and
the maintenance of public order in occupied territory.
 APPENDIX A: SELECTED JUDGMENTS 387

I am also of the opinion that Mr. Khoury’s argument that the

military commanders exercising the powers of the Military Govern-
ment do not act according to their own discretion but merely carry
out Government policy should be rejected. In Abu Helou I said that
“the source of domestic law under which the Military Government
acts lies in the general power of the Government and its Ministers
under sections 29 and 30 of the Basic Law: The Government”; to
this must now be added section 2 )a( of the Basic Law: The Army,
according to which the Army is subject to the authority of the
Government. I remarked that the holders of office in the Military
Government belong to the executive branch of the State, whence the

power of this Court, under section 7 )b( )2( of the Courts Law,
,1957 to review their activity. Thus, I see nothing wrong in the
Military Government not being its own master but carrying out a
policy mapped out for it by the Government. In any event, I have
found no suggestion in the evidence before us that the views of the
Military Government personnel are not wholly consistent with the
policy of the Government which is its superior.
It has also been urged before us that the inhabitants of a civilian
settlement are not subject to army discipline and that therefore the
establishment of a civilian settlement cannot be justified by military

reasons. But it also emerges from Major-General Orly’s affidavit that

a civilian settlement such as Beit El is intended to be integrated into
regional defence which is part of the IDF’s military scheme, and
since the IDF is for the most part a reservists’ army, it is common
knowledge that in time of need the inhabitants of a civilian settle-
ment come under military command even individually. Major-General
Orly’s affidavit further explained that precisely in an emergency, when
the regular forces move to the front, a civilian settlement of this kind
fulfils an obvious military role in controlling the surrounding area.
Thus far my observation on the matter from the aspect of Israeli
municipal law. I now turn to the legality of the respondents’ action
under international law or, more precisely according to the rules
annexed to the Fourth Hague Convention of 1907 and according to
the Geneva Convention of .1949 In this respect note should be taken
first of the reservation of the respondents in paras. )a(12 and 14 of
Major-General Orly’s affidavit, beginning with the words “Without
going into the legal question of the actual applicality of the rules of
international law in the area occupied by the IDF since ”.1967 These
388 APPENDICES

words hint at the Israeli pleading based on the fact that at the time
of the IDF’s entry into Judea and Samaria that territory was not
occupied by a sovereign power whose occupation thereof enjoyed
general international recognition. We have not been asked to deal
with this question in this petition, and that reservation thus belongs
to the group of reservations mentioned by me in Abu Helou, which
remain open in this Court.
Regarding article )496 of the Geneva Convention, which forbids
the despatch or transfer of civilian population of the occupying power
to the occupied territory, I concur with the opinion of my colleague
that this is a conventional provision and that therefore the petitioners
cannot rely on it in this Court. To the precedents cited by my -001
league in this matter I would add the commentary in article )496
of the Convention, published by the Red Cross under the general
editorship of Dr. Pictet ,aveneG( :)1958

This clause was adopted after some hesitation, by the XVIIth

International Red Cross Conference.

If there was some hesitation, then this is certainly not a pro-

vision which was self-understood according to customary international
law. In fact, it is clear that the provision was an innovation based on
the bitter experience gained in the Second World War. As to the
nature of this Convention as a whole, I would quote from the preface
to that commentary .p( )5 where it speaks of the travaux préparatoires.

The undertaking was an arduous one, however. The legal field

in question was completely new. Until then the Geneva Con-
vention had only applied to the armed forces, a well defined
category of persons, placed under the authority of responsible
officers and subject to strict discipline; it was now necessary to
include an unorganized mass of civilians scattered over the
whole of the countries concerned.

I would also refer to p. 614 for a comparison between the Fourth

Hague Convention which was clearly intended to give expression to
customary international law and the Geneva Convention which is
not.
Mr. Khoury quoted the commentary on article 8 of the Convention
which provides that:
 APPENDIX A: SELECTED JUDGMENTS 389

Protected persons may in no circumstances renounce in part

or in entirety the rights secured to them by the present Con-

vention.

On this, it is noted, at p. :79

Article 8 is of the greatest assistance to all protected persons.

It allows them to claim the protection of the Convention, not as

a favour, but as of right, and in case of violation, it enables

them to employ any procedure available, however rudimentary,
to demand respect for the Convention’s terms.

But from what is said earlier on p. ,78 it is clear that the intention
is not to give effect to the provisions of the Convention in a municipal
court but to indicate the forms of relief a protected person can obtain
at the international level; there is no expression here of the opinion
that the Convention has become customary law. As to Dr. Pictet’s
article of 1975 mentioned by my colleague, it seems to me that it,
too lends no support to the particular provision with which we are
concerned having become customary law.
In the affidavit in reply, it is contended that the respondents comply
with the humanitarian provisions of the Geneva Convention and that
section )496 does not apply to the voluntary transfer of nationals
of the occupying power to occupied territory. I do not intend to
delve into this matter since, as I have said, the whole Convention,
and certainly this particular provision, is conventional international
law by which, according to English law followed by us, our courts

are not bound, but its enforcement is a matter for the states parties
to the Convention (Custodian of Absentee Property v. Samra )1956(
10 P.D. ;1825 Eichmann ‫ל‬. Attorney-General )1962( 16 P.D. .)2033
I have more willingly arrived at the conclusion that this Court
should refrain from dealing with the problem of civilian settlement in
occupied territory from the point of view of international law, since
I know that it is in dispute between the Government of Israel and
other governments and is likely to form part of the fateful inter-
national negotiations in which the Government of Israel is engaged.
Any expression of opinion by this Court in so sensitive a matter,
which could only be made obiter would be neither here nor there,
and it is better that matters which by their nature pertain to the
international political plane should be dealt with only on that plane.
390 APPENDICES

In other words, although I agree that the complaint of the petitioners

is generally justiciable in this Court, since property rights of individuals

are involved, this particular aspect of the matter should be regarded

as injusticiable upon application of an individual to this Court.
What Professor Jaffe says in Judicial Control of Administrative Action,

p. ,492 are very apposite—

is not the subject matter as such which is political (though

foreign affairs might appear to suggest the contrary). It is rather
that the question is one for the decision of which there are no
well-developed principles, or the issues is felt to be closely related
to a complex of decisions not within the court’s jurisdiction that
its resolution by the court would either be poor in itself or would
jeopardize sound decisions in the larger complex. |

I now turn to the Hague Rules which according to prevailing opinion

are customary international law and which this Court will resort to
and apply in so far as they are not inconsistent with domestic statutory
law (Abu Helou at p. 177 and Eichmann at p. .)2055 Mr. Khoury has
noted correctly that article )g(22 does not apply here as it belongs
to the rules contained in Part Two, entitled “On which
apply in a time of actual hostilities. The rules contained in Part
Three, entitled “Military Authority over Territory of the Enemy
State,” may be applicable here (subject to the problem of the special
status of Judea and Samaria which do not belong to an “enemy
state’). As to these, my colleague has already observed that article
,46 closing passage, which forbids the confiscation of private property,
is not relevant to property such as the land in question which was not
confiscated from the owners but of which only the use was taken

over and the respondents are prepared to pay rent for such use (part of
the petitioners have in fact received rent). Article ,53 concerning
seizure, generally applies only to movables (perhaps also to immovables
directly serving movables, such as a railway installation and the land on
which it is situated; see Schwarzenberger, International Law, Part Two,

p. .)301
There remains article ,52 concerning requisition, which provides:

Requisitions in kind and services shall not be demanded from

local authorities or inhabitants except for the needs of the

army of occupation. They shall be in proportion to the re-

sources of the country, and of such a nature as not to involve
 APPENDIX A: SELECTED JUDGMENTS 391

the inhabitants in the obligation of taking part in military

operations against their own country.
Such requisitions and services shall only be demanded on
the authority of the commander in the locality occupied.
Contributions in kind shall as far as possible be paid for in
ready money; if not, a receipt shall be given and the payment
of the amount due shall be made as soon as possible.

This article has been interpreted as referring also to the requi-

sition of land as such although I must say that the expression "‫מו‬
kind” appearing therein, would according to its ordinary meaning,

seem to refer only to movables (the Oxford Dictionary e.g. has “in
kind: in goods or natural and so would the corresponding
expression “en nature” in the French version of Article .52 The usual
interpretation, however, appears to include also land under article .52
”noitisiuqeR“ includes also possession; see Schwarzenberger, ibid.,

p. :288
Requisition... may be described as an Act of State, authorized

on conditions laid down by international law, by which a

belligerent occupant may deprive a private person or local
authority of ownership in movables and possession in immovables
(emphasis added). |

One of the conditions prescribed by article 52 is that the con-

fiscation is necessary for “the needs of the army of occupation.”
Mr. Khoury seeks to define this concept in an extremely narrow

sense, as including only the immediate needs of the army itself. I

am not prepared to accept this interpretation. The passages from
the literature and judicial decisions upon which Mr. Khoury relies
in this regard restrict the interpretation of article 52 with a view
to preventing the exploitation of the resources of the occupied terri-
tory for the benefit of the economy of the occupying power (see
e.g., the British Manual of Military Law, Part Three, p. ,166 para.
;)598 Oppenheim, International Law, 7th ed., Vol. ,2 p. ;)410 they
do not restrict the interpretation of the term “needs of the army
of occupation” with regard to what occurs in the occupied territory
itself. My colleague has quoted von Glahn as saying that “a tem-

porary use of and buildings for various purposes appears permissible

under a plea of military necessity.” I would add to this a passage
from Oppenheim, op. cit., p. 403 (section :)140
 392 APPENDICES

... confiscation differs from the temporary use of land or build.

ings for all kinds of purposes demanded by the necessities of war.

And one from the British Manual of Military Law, Part Three,

para. :592

The temporary use of land or buildings for the needs of the

army is justified... privately owned land and buildings may be

used for military movements, quartering and the construction of
defence positions (emphasis added).

The main function assigned to the army in occupied territory is “to

safeguard public order and security,” as provided in article 43 of
the Hague Regulations. What is required for achieving this purpose
is ipso facto required for the needs of the army of occupation, within
the meaning of article .52 The maintenance of security in Judea and
Samaria imposes special tasks on the Army and from time to time
necessitates military operations even in a period of comparative
tranquillity in order to anticipate danger of terrorist acts originating
outside or within the occupied territory. In this special situation of
continuing minor warfare the powers vested in the Army in a time
of active warfare and in a time of tranquillity cannot be sharply
separated. Even if at present quiet prevails in the area near Beit El,
prevention is better than cure. In this connection I have already
referred in Abu Helou to a passage in Schwarzenberger, p. ,257 which
speaks of acts justified a fortiori, in maintaining public order when
suppressing hostile activities in occupied territory. Thus, in view
of the remarks I have cited from Major-General Orly’s affidavit, my
conclusion also is that the continued requisition of the area in which
the settlement of Beit El has been established is necessary for the needs
of the IDF.
Mr. Khoury asks how a permanent settlement can be established

on land requisitioned only for temporary use. This is a good question.

But Mr. Bach’s answer, that the civilian settlement can only exist in
that place as long as the IDF occupy the area by virtue of the
Requisition Order, commends itself to me. This occupation can itself

come to an end some day as a result of international negotiations

leading to a new arrangement which will take effect under international
law and determine the fate of this settlement as of other settlements
existing in the Administered Territories.
 APPENDIX A: SELECTED JUDGMENTS 393

The petition in respect of Beka’ot relates to Orders of requisition-

of-possession and closure by the Commander of Judea and Samaria
of about 300 dunams of the agricultural land of Tubas village. The
petitioners are the owners of this area and used to cultivate it. The

area was handed over to the settlers of the smallholders’ settlement

of Beka’ot Bet (Nahal Ro’i), which belongs to the Ihud Hahaklai
(Agricultural Union). On this petition, as well, the respondents submit
that the act was done because of the military necessity of maintaining

a presence and security control in the place. Here again I would let
Major- General Orly speak for himself .arap( 3 of his affidavit):

)b( The area is a valley connected with the river Jordan along
the bed of a wadi and situated about seven kilometres west of
the river Jordan in the centre of a tract over which cross the

access routes from Jordan and the Jordan Valley to the populated
areas of Judea and Samaria (hereinafter called “the Region”)
and of Israel.
)c( Owing to its situation in the valley described above, the

area is the most convenient axis of penetration from Jordan to

the Region and to Israel. . .

And para. :4

Since the Six Days War hundreds of penetrations by terrorist

gangs have been effected in the Jordan Valley area. A considerable

number of them have occurred close to the area which is the
subject of this petition within a radius of up to ten kilometres
to the south-east. As a result of terrorist activity, dozens of pursuits
and sweeps have been carried out in the Region. In the sweeps
following penetrations, the tracks of the penetrators have not in-
frequently led to villages in the area of Tubas.

Para. 5 gives full particulars of various forms of attacks by terrorists

who have penetrated into Judea and Samaria by way of the area
in question. This is followed by a description of the set of measures
taken by the IDF to prevent these penetrations, including the establish-
ment of settlements such as Beka’ot Bet, which are integrated into
the regional defence system along the Jordan, in the Valley and on
its slopes. In establishing settlements in that area, it was reckoned
that a barrier accross the transit route of the terrorists should be
 4 APPENDICES

created and that the area is situated on an axis likely to serve the

movement of military forces.

These facts, in my opinion, are substantial military reasons justifying
the requisitioning and closure of the area. As to the legal aspect of
the matter, the considerations which my colleague explained and te
which I added, as above, apply here as well.
In the Beit El case, this Court made an interim order on 17 Septem-
ber 1978 to prevent excavation and construction works on the land,
the subject of the petition. In spite of the order, excavation and cons-
truction have variously been carried out in the area by the settlers
(who are not parties to these proceedings). Mr. Khoury therefore
applied by motion to enforce the interim order against the respondents
and in the petition itself sumbitted that in view of the contempt of
court involved in disobedience to the interim order the respondents
cannot be heard to plead to the petition. After perusing the affidavit
in reply by Colonel Moshe Feldman, Deputy Commander of the
Judea and Samaria Region, I am satisfied that the respondents, for
their part, did all they could to put an end to disobedience to the
order when they learned of it and that the work has been discontinued.
Thus there was no occasion to deny them the right to plead in this
Court because of acts done by the settlers in contravention of the
interim order.
I therefore agree that the two petitions should be dismissed and
that the above Motion be set aside.

Asher J.

I concur with the opinions of my esteemed colleagues Witkon J. and

Landau D.P.

Bekhor J.

I.concur with the judgments of my esteemed colleagues, Witkon J.

and Landau D.P. and have nothing to add.

Ben-Porat J.

I concur with the opinions of my esteemed colleagues, Landau De

and Witkon J. and the following remarks are merely by way of
supplement.
 APPENDIX A: SELECTED JUDGMENTS 395

Major-General Orly’s plea that vital security considerations necess-

itated the acts which are the subject of these proceedings is prima facie
reasonable. Israel, a small state with its long and narrow territory
inside the Green Line, is unfortunately surrounded by countries which
do not conceal their hostility towards it. I doubt whether this situation,
which I will not examine in detail, has a parallel in the history of
mankind. Hostility expresses itself not only in economic boycott as

a means of warfare but in raids of members of the PLO from the

territories of several of these countries for the purpose of committing
violence in Israel. Above all, these inroads place Israel in constant
danger of a surprise war, such as occurred in 1973 when attack came
simultaneously from north and south. It is reasonable therefore that
in this special situation, which calls for the utmost preparedness to
withstand all possible trouble if, where and when it arises, unusual
solutions become necessary. Against this background, the argument
that in containing sudden trouble the time factor is of prime importance
is good common sense. One of those solutions, which is the subject
of the proceedings before us, is the creation of a civilian Jewish

presence at particularly sensitive spots. A striking example is the area

dealt with in Beka’ot. This is a valley along the bed of a wadi, situated
in the centre of a tract of land crossed by the access routes from
Jordan and the Jordan Valley to the populated regions of Judea
and Samaria and of Israel. As explained in Major-General Orly’s
affidavit, this position makes the area the most convenient axis of
penetration from Jordan to those regions. Since, as I have said,
experience has taught us that warfare may start suddenly, the need
for a Jewish presence at such a point is in all reason vital.
The question before us is whether this solution is consistent with
the principles of international law. My affirmative answer is, as I
have said, based on the reasons given by my esteemed colleagues,
and I am confirmed in this view by the following considerations:
)a( If I have properly understood the sources referred to by my learned
friend, the idea underlying the international principles is that the
occupier must be prevented from using his powers arbitrarily. In other
words, he must not be allowed to utilize the opportunity of rule for
eviction and annexation. The line dividing arbitrary use from self-
defence and the adoption of necessary security measures is thus one
of the criteria determining whether an act is permissible or prohibited;

see Schwarzenberger, International Law, Part Two, pp. 135 and .245
396 APPENDICES

As stated, I am satisfied that the deponent’s submission that the

adoption of necessary security measures is involved here is trustworthy.
)b( Iam aware to the fact that we are concerned with the settling of
civilians. In view of Israel’s special situation described above, however,
excellent her army, the security tasks confronting it are clearly extremely
difficult, especially as it is immensely inferior in numbers to the
neighbouring armies. Accordingly Major-General Orly’s submission
that a civilian presence at these sensitive points is imperative appears
to me reasonable.
)c( I am inclined to think that article )g(23 of the Hague Con-
vention, which, by way of exception, permits the requisition of enemy
property if “imperatively demanded by necessities of war” is also
relevant to this case. The needs of war may in logic be imperative not
only during actual warfare but also, as I explained above, in order to
meet existing tangible danger. As the war of October 1973 demon-
strated, the danger of a sudden outbreak of war hangs over Israel
and one does not know where and when the trouble will start. We

may compare this situation with self-defence. It is true that in the

distant past the Nuremberg Military Tribunal decided that preventive
action in foreign territory is permitted when an immediate and over-
whelming need for self-defence exists, but this rule was subsequently
enlarged by the Tokyo Military Tribunal that applied it also to the
threat of impending attack; see Schwarzenberger, pp. 2829 and note
.6 If this is the rule that operates in cases of violent action on foreign
soil—be it also self-defence, prevention being better than cure—then
it seems to me that it applies equally in our case. The matters com-
pared (self-defence and vital needs) differ but common to them,
to the best of my understanding, is inferentially the idea that a threat
which may materialize at any moment is tantamount to a present
danger.
)d( The question which troubled me was whether the expression
“permanent settlement” indicated an intention to withhod the land
for ever, but I have come to the conclusion that the word ”tnenamrep“
must be taken in a relative sense. Not “wayfarers that tarry for a
night” or visitors staying for a few weeks or months are involved but

persons who regard this place as their home. It must, however, be

remembered that the state of emergency in which the State finds itself
has lasted ever since its establishment, for over thirty years. The
prospect of a comprehensive peace with all its neighbours still lies
 APPENDIX A: SELECTED JUDGMENTS 397

hidden in the unknown future. A peace treaty with our neighbours

will in due course inevitably require the formulation of suitable
security arrangements. The considerations attending the conclusion
of peace are likely to be different from those demanded by present
reality. Clearly therefore the fate of this or the other settlement will
ultimately be decided by the terms of such an agreement.
)e( Accordingly, in my opinion, the orders nisi and the interim orders
should be set aside.

Orders nisi and interim order set aside.

Judgment given on 15 March .1979
 398 APPENDICES

.2 The Matityahu Case

HC *25879

FALAH HASSIN IBRAHIM AMIRAH and OTHERS

V.

MINISTER OF DEFENCE and OTHERS

in the Supreme Court Sitting as a High Court of Justice

Landau, D.P., Shamgar J. and Bekhor J.

JUDGMENT

A. Nassar for the petitioners.

G. Bach, State Attorney, for the respondents.

Landau D.P.

On 25 July 1979 we decided to set aside the order nisi and dismiss
this petition. We also vacated the interim order of 24 April 1979 and
charged the petitioners jointly and severally to pay the respondents’
costs herein, amounting to IL.2,000. The following are the reasons
for our decision.
The subject matter of the petition is an area of about 500 dunams
in the vicinity of the village of Nalin in the Ramallah Sub-district,

near to Modi’in, beyond but close to the Green line. In the middle is
a hill which commands the neighbourhood and provides good obser-
vation across the coastal plain. The larger part of the area is uncultivated
stony ground but there are cultivated parcels.
On 20 September 1977 the Commander of the Region of Judea and
Samaria issued an Order Concerning the Taking of Possession of land
in the area, being of the opinion that the same was necessary for
military needs. In March 1979 work was begun to prepare the land
for setting up a civilian settlement there. At the same time notice of

* )1980( 34 P.D. )1( .90

 APPENDIX A: SELECTED JUDGMENTS 399

the requisitioning was given through the mukhtar who is also chairman
of the village council to those who asserted rights in the area to enable
them to claim compensation or payment for use of. their land so
requisitioned. The work of preparation was halted by the interim
order which this Court granted on the application of the petitioners.
The land of the village of Nalin has not undergone a process of
land settlement nor are the rights claimed by the petitioners registered
in the land registers of the Jordanian authorities which preceded
Israeli military government. The petitioners claim rights on the basis
of occupation and agricultural working and as proof of their rights
have appended to the petition copies of the Jordanian agricultural
property tax registers. Their petition is on the face of it so deficient
as to lead to its dismissal in limine because the respective parts cf
the total area of 500 dunams requisitioned (which is delineated on
the map attached to the Requisition Order)that are claimed by each
of the petitioners is not located and identified. They satisfy themselves
with the mere plea that they have property rights over an area of

more than 600 dunams according to the copies of the tax registers
which in turn do not give the location or identity on the ground. No

person can come to this or any other court with a plea in such general
terms when what is involved is the private property rights of each cf
the petitioners separately. In their affidavit the respondents raise
various objections to the form of this evasive pleading. It may be
reasonably concluded that had the petitioners taken the trouble to
set out the facts about the property rights which each of them claimed
in the requisitioned area, it would have become apparent that the part
cultivated by them is far smaller than that claimed and that some
of the tax certificates submitted do not relate at all to the requisitioned

area whilst some relate to parts uncultivated according to Jordanian

classification and some do not even show any entry in the names of
the petitioners or their predecessors. Nevertheless, having issued an
order nisi, we shall not be meticulous about all this but shall assume
in favour of the petitioners that part of the land (about ,%20 according
to the respondents) is cultivated by one or more of the petitioners.
The petitioners urge that the establishment of a civilian settlement
in the area cannot be justified either under Israeli law or under inter-
national law. Counsel for the petitioners, Mr. Nassar, abandoned all
argument of international law in his submissions to us, in view of the
judgment in Ayub v. Minister of Defence )1979( 33 P.D. )2( ,133
 400 APPENDICES

that the taking of possession of private land in occupied territory for

establishing a civilian settlement is not contrary to the rules of customary
international law by which this Court is bound, if the establishment
of the settlement is required for the military needs of the occupying
authorities. Mr. Nassar did not attack this decision in the present
petition. His argument was that the requisitioning in question is not
justifiable under Israeli law because the land is in fact not required
for military needs and the military reasons given merely serve as a

cover for other reasons. This is a question of professional fact dealt

with by the deponent on behalf of the respondents, Gen. Dani Matt,
who coordinates activities in the Territories at the Ministry of De-
fence and is Chief of Staff. He explains that the proposed settlement
is planned to be integrated with two other settlements in the area,
Ruth and Shilath, which lie nearby within the Green line. The area
is situated at the “first level” of the heights above the very narrow
coastal plain, some 12 km. distant as the crow flies from Ben Gurion
Airport. The three settlements overlook the Airport and will contribute
to secure its rear. At the spot and on the nearby heights the IDF
deploy on occasion when some sensitive occurrence is anticipated at
the Airfield. The existence of an additional settlement at this high
point, which provides a convenient look-out across the plain, will

ease the security task and the watch necessary for meeting terrorist
acts. Secondly, the area in question is situated at a point intended to
be the junction of the existing road leading from Latrun to Nebi
Tsalah and “the longitudinal road” planned to connect north Jeru-
salem with the Ben Shemem region as an alternative approach to the
existing inter-urban highway. The establishment of the settlement near
this vital junction will assist in preventing interference with traffic by
hostile forces when quiet does not prevail in the Region of Judea and
Samaria. The settlement will also form part of the regional defence
System in the area and has been allocated man power and other
facilities accordingly.
An affidavit in reply was put in by Mr. Matityahu Peled, a General
in the Reserve, to contest these submissions. He impugns each of the
considerations which Gen. Matt explained in his affidavit and supports
the argument of the petitioners that the respondents are using supposedly
military reasons to justify civilian settlement not permitted in occupied
territory except for military purposes. In a dispute of this kind over
professional-military matters, as to which the Court has no well-based
 APPENDIX A: SELECTED JUDGMENTS 401

knowledge of its own, we shall presume that the professional reasons

set out in the affidavit made on behalf of the respondents and speaking
for those actually entrusted with maintaining security in the Admin-
istered Territories and the Green line, are honest. Very convincing
evidence is needed to rebut this presumption. The matters to which
Gen. ).seR( Peled deposes in his affidavit are on the face thereof
not convincing in view of the manifest knowledge of every citizen of
the State of Israel who remembers the history of the wars which it
has had to wage to ensure its existence.
Mr. Peled asks (in para. 7 of his affidavit) in response to Gen.
Matt’s submission that the area in question is required as an effective
observation point towards Ben Gurion Airport and over the strech
of the plain at its foot:

If the deponent meant that denial to the enemy on the east of

the chain of heights adds to the security of the State, the question
arises where is the enemy whose look-out it is sought to prevent.
Is he to be found near to the area in question? As we all know,
he is now very far from there, beyond the range of hills, beyond
the Jordan Valley and on the other side of the Jordan river itself.

Therefore, he says, we lack information about conditions in the

area and of the enemy that might serve to uphod the position taken
by Gen. Matt.
This approach regards things statically and takes account only of
the present cease-fire line between Jordan and the territory of the
Israeli governing forces. It disregards what might happen sometime
in the future either as a result of hostile activity, external or internal
to the administered territory or as a result of a new political arrange-
ment. Proper military planning must, however, have regard not only
to existing dangers but equally to dangers that may be created in con-
sequence of dynamic developments in the area. Gen. Peled also contests
the view that the establishment of a civilian settlement at this spot is
required for strengthening the rear security of the Airport since, in
his opinion, the Army can solve the problem by itself. But again in
Ayub it was explained to the satisfaction of the Court that it is precisely
in time of war that military forces move towards the front and that
the actual danger of internal terrorism increases and with it the
importance of a civilian settlement for guarding and controlling the
surrounding area. As for regional defence, Mr. Peled says that only
 402 APPENDICES

limited defensive capacity has been ascribed to it, which does not
give it positive fighting power in the event of concentrated enemy attack.
Where in the War of Independence assuring the approach to Jerusalem

was involved, the stand of the Gush Etzion settlements, we recall,

contributed decisively in halting the advance of the enemy. That was

a stand taken against regular forces. How much more so when we

are talking about preparations to stop terrorist activity or irregular
forces. In brief, as regards the differences between Gen. Matt and
Gen. ).seR( Peled the views of the latter can in no matter set at
naught—even for judges who are not experts in the matter—the
weight of Gen. Matt’s reasons or raise doubts about the honesty of
these reasons, especially since the power of the Court to intervene in
such matters is in any event very circumscribed (Abu Helou v. State
of Israel )1973( 27 P.D. )2( .)169
Mr. Nassar submitted further that it was not the competent author-
ities of the military government in the area which decided to requisition
the land but the Israeli Government which had approved the estab-
lishment of the settlement in 1977 and the Ministerial Defence Com-
mittee which had resolved in March 1979 to effectuate its establishment.
A similar plea was made in Ayub and was rejected. In this regard,
I said there, after mentioning sections 24 and 31 of Basic Law: The
Government and section )a(2 of Basic Law: The Army, that

do not see any fault in the )yratilim( administration not being

its Own master but carrying out the policy set by the )ilearsI(
.tnemnrevoG- Apart from this, I have not found in the evidence
adduced any suggestion that the views of the military personnel
is inconsistent with the policy of the Government, its superior.

The same applies here and I would add that in matters of pro-
fessional--military assessment, the Government will certainly be guided ir
the first instance by the advice tendered to it by the Chief of General
Staff. The final assessment, however, which also has its political aspects,
such as the establishment of a settlement in the Administered Territories,
is made by the Government which will deal with the matter in the light
of a complex of military and political considerations and come to a
decision. While it may, for instance, recognize the military importance of

a new settlement in accordance with the professional advice it receives,

it could still decide that its establishment is not desirable for political

reasons.
 APPENDIX A: SELECTED JUDGMENTS 403

In the present case, it is clear from Gen. Matt’s affidavit what the
opinion of the military experts was. It is also clear from the decisions
of the Government and Ministerial Committee that this advice was
accepted and that no political reasons were thought to exist to prevent
the establishment of the settlement. There is nothing invalid in all
this either under Israeli law or under customary international law
which forms part thereof.

Shamgar J.

I agree.

Bekhor J.

I agree.

Order nisi discharged.

Judgment given on 24 August .1979
 4 APPENDICES

.3 The Elon Moreh Case

HCJ *39079

Izat Muhamed Mustafa Dwaikat and Others

V.

Government of Israel

Minister of Defence
Military Commander of the Judea and Samaria Region
Military Commander of the Nablus Sub-district
Felix Menachem
Shvut Avraham

In the Supreme Court Sitting as a High Court of Justice

Landau D.P., Witkon J., Asher J., Ben-Porat J. and Bekhor J.

Khoury for petitioners Nos. 116

Zichroni and Feldman for petitioner No. 17
Bach, State Attorney, for respondents Nos. 14
Cohen and Simon for respondents Nos. .56

JUDGMENT
Landau D.P.

In this petition we have to deal with the legality of the establishment

of a civilian settlement at Elon Moreh at the approaches to the
city of Nablus on land in the private ownership of Arab residents.
This Court dealt with a similar problem in ”lE-tieB“ )1979( 33 P.D.
)2( ,113 judgment in which was delivered on 13 March .1979 There

we decided that the establishment of two civilian settlements on

private land at Beit-El near Ramallah and at Bekaot B near Tubas
offended neither against municipal Israeli Jaw nor against customary
international law which forms part of municipal law, because these
two settlements were established for military needs, as we defined
that term.

* )1980( 34 P.D. )1( 1

 APPENDIX A: SELECTED JUDGMENTS 405

In Beit-El, it was stated, in reference to the justiciability of this

issue, that the problem of the settlements “is in dispute between the
Government of Israel and other governments and is likely to be on
the agenda in fateful international negotiations in which the Govern-
ment of Israel is engaged”. In the meantime, the sharpness of the
dispute in the international arena has not ceased: moreover it has
also become intensified in the Israeli public at home and is now
reflected also in the very decision to establish a civilian settlement
at Elon Moreh, adopted by majority vote of the Israeli Government.
This therefore is an acute problem agitating the public at present.
In Shalit v. Minister of Interior )1969( 23 P.D. )2( 477 (the “Who
is a Jew” case) * I spoke of “the depressing the court

as it were abandons its proper place, above the disputes which divide
the public, and the judges themselves descend into the arena”. And
I then explained, as one of the minority judges, that the court must
refrain from adjudicating the dispute that arose there, since it had

no valid source for its decision. I added that even in such a situation
“there may be cases where a judge may perforce have to decide and
to give his personal answer to a question of general outlook on life,
although that question may be in dispute.” This time we have valid

sources for deciding and no need—and are indeed proscribed, whilst

sitting in judgment—to interpose our personal views as citizens of
the State. It is, however, still greatly to be feared that the court will

appear to be abandoning its proper place and descending into the

arena of public debate, and that its decision will be received by one
part of the public with acclamation and by another part with utter
emotional rejection. In this sense I regard myself here as bound by
the obligation to decide in accordance with the law in every matter
duly brought before the court, knowing well from the outset that
the public at large will not pay attention to the legal reasoning but
only to the final conclusion, and the proper status of the court as an
institution is likely to be prejudiced in taking a stand proper to it,
beyond the disputes which divide the public. But what else can be
done? That is our task and our duty as judges.
In the morning of 7 June 1979 Israeli citizens, with the assistance
of the Israel Defence Forces ,)FDI( began a settlement project on

a hill some two kms. east of the Jerusalem-Nablus Road, and about a

* See Selected Judgments of the Supreme Court of Israel, Special ,35 .83
 406 APPENDICES

similar distance south-east of the junction of this road with one

descending from Nablus to the Jordan Valley. The work was carried
out with the aid of helicopters and heavy equipment which com-
menced breaking a way from the Jerusalem-Nablus Road to the hill.
The entire hill is rocky and uncultivated land (apart from a small
plot on the north-west side of the site, which had only recently been
ploughed and sown and in the opinion of an expert for the respon-
dents out of season and at a point that holds out no prospect of any
profitable economic yield). The breaking of the way 17 kilometres
in length entailed, however, damage to existing sorghum grass cover-
ing an area 60 metres long and 8 metres wide, and to about six olive
trees four years old.
The land of the hill lies within the boundary of the nearby lands
of the village of Rujeib to the north-west. The seventeen petitioners
who are from the village have plots of land there, registered in their

names in the Nablus land Registry after land settlement procedure.

The over-all area of their plots is about 125 dunams. The petitioners
do not have rights of Ownership of the land on which the way was
opened.
On 5 June ,1979 two days before the settlers came on to the land,
Brig.-Gen. Benjamin Ben-Eliezer, Commander of the Judea and Sa-
maria Region, signed “Land Requisition Order No. .”1679 The
Order begins by stating that “By virtue of my authority as Com-
mander of the region and being of the opinion that the same is re-
quired for military needs, I hereby order as In the body
of the Order, the signatory proclaims that an area of about 700
dunams, delineated on the map attached thereto, is “requisitioned
for military needs”. This area embraces the petitioners’ land. Para-
graph 3 of the Order provides that every owner or lawful occupant
of land situated in the area may submit to the Claims Officer a claim
of periodical payment for use of the requisitioned land and compensa-
tion for any actual damage caused him by the requisition. According
to paragraph ,5 “Notice of the contents of the Order will be delivered
to the owner or occupier of land situated in the area”. A similar
Order relating to the path to the hill .oN( )1779 was only signed

on 10 June ,1979 three days after the land was occupied. Regarding
delivery of the required notice to the landowners, amongst them the
petitioners, it appears that it was only given to the mukhtars of the
village of Rujib (who were summoned to the office of the Nablus
 APPENDIX A: SELECTED JUDGMENTS 407

Military Governor) at 8 a.m. on the very day the land was occupied
and just before the work was commenced in the area. Written notices

were only handed to the mukhtars on 10 June 1979 for passing on

to the landowners.
In his affidavit in reply to this petition the Chief of General Staff,
Lt. Gen. Raphael Eitan (hereinafter called “the C-G-S”) states that
prior notice should properly have been given to the landowners of
the intention to effect the requisition, as is normally done in similar
instances, and that he had given instructions that for the future
notice was to be given to landowners concerned in due time before
land was requisitioned. It is not clear why on this occasion those
responsible deviated from past practice in like instances. The impres-
sion is created that the occupation of the land was organized as a
military operation by employing an element of surprise and in order
to forestall the ”regnad“ of intervention by this Court on an ap-
plication by the landowners before work began in the area.
The petitioners applied to this Court on 14 June 1979 and an
order nisi was granted on 20 June 1979 against the respondents, the
Government of Israel, the Minister of Defence, the Military Com-
mander of Judea and Samaria and the Military Commander of the
Nablus Subdistrict, directing them, inter alia, to show cause why
the Requisition Orders issued should not be declared void and why
the land should not be cleared of the equipment and the structures
erected on it and the establishment of a civilian settlement thereon
should not cease. In addition, an interim order was granted to stop
further work of excavation and construction in the area in question
and the settlement of any additional civilians beyond those who had
settled there down to the issue of the interim order. This interim
order is still in force with certain variations introduced at the request
of the settlers in the course of the hearing of this petition.
In his affidavit in reply, the C-G-S explains that he reached the
general view that the establishment of a civilian at the
place was required for security reasons, and that his position con-
cerning the importance of the area in point of security and of estab-
lishing there a settlement was brought to the attention of the Minis-
terial Defence Committee which decided at its sessions on 8 and 10
May 1979 to approve the requisitioning of the area by Order for
the establishment of the settlement; as a result of this decision, ap-
proved by the Government in plenum at a meeting on 3 June ,1979
 —

408 APPENDICES

the Commander of the Judea and Samaria Region issued the said
Requisition Order. Lt. Gen. Eitan goes on to expand on the im-
portant contribution of civilian settlements to the defence of the
Jewish Yishuv in the country even before the State was set up and
during the War of Independence and he stresses the security pur-

poses which such settlements meet in regional defence and in con-

nection with IDF organization in times of tranquility and in emer
gencies.
The C.G.S expresses with considerable emphasis his decided opinion
of the importance of regional defence, and implicit in his observa-
tions is severe criticism of the views of others who reduced regional
defence to “a low point”, as he puts it, towards ,1973 when military
thinking rested on the laurels of the Six-Day War. However, “after
the 1973 war, regional defence was restored to the rightful place
stolen from it out of haughtiness and a fundamental misconception
of its contribution”. Today, armed regional defence settlements are
properly fortified and trained for their task of defending the region
in which they exist and their location within an area is determined
by regard to their contribution in controlling a wide stretch of
country and assisting the IDF in its various tasks. The C-G-S ex
plains the special importance attaching to a civilian settlement in
particular as against a military base, since during fighting the force
at a base will go out on mobile and offensive missions, while a
civilian settlement remains where it is and properly armed and equip-
ped controls the surrounding area for such assignments as observa-
tion and protecting nearby lines of communication so as to prevent

enemy control over them. This is particularly so on a general mo

bilization of the reserves at the outbreak of war, and in this case the
outbreak of war on the eastern front. At such time the forces must

move to their fixed places of deployment, and control of the lines

of movement to ensure speedy and uninterrupted passage increases
in importance. Nablus and its surroundings form a junction without
alternative, hence, the special importance of controlling the adjacent
roads. Elon Moreh commands a number of these roads, the Ramal-
lah-Nablus Road, the Nablus-Jordan Valley Road via Jiftlik and
another road to the Jordan Valley via Akraba and Majdal which

crosses nearby on the south.

There can be no doubt, and counsel for the petitioners—Mr. Elias
Khoury for petitioners Nos. 116 and Z. Zichroni and A. Feldman
 APPENDIX A: SELECTED JUDGMENTS 409

for petitioner No. 17—did not dispute that Lt. Gen. Eitan holds
these views—on a matter within his professional knowledge as a
military man of great experience—with utter sincerity and profound
imner conviction. He does not, however, conceal the fact that others
dispute his conclusion about the decisive importance of establishing

a civilian settlement at the place chosen for Elon Moreh. In Para.

)d(23 of his affidavit he states:

I am aware of the view of Respondent No. ,2 who, whilst not

contesting the strategic importance of the said region, thinks
that security needs can be realized by means other than estab-
lishing a settlement at the said place.

The second respondent is the Minister of Defence. Thus an extra-

ordinary situation has been created in which the respondents differ

among themselves in their views on the subject matter of the petition.

The C-G-S is to be regarded as deposing his views on behalf of the
Army authorities as well as the Israeli Government, which decided the
matter by majority vote, against objection to the decision of the Minis-
terial )ecnefeD( Committee submitted by the Deputy Prime Minister
(who like the Minister of Defence, is also a prominent authority in
military matters, having been the second C-G-S of the IDF). The
petitioners were also given leave to submit additional opinions, one by
Lt. Gen. ).seR( Haim Bar-Lev, and one by Maj. Gen. ).seR( Matityahu
Peled. Lt. Gen. ).seR( Bar-Lev gave his professional assessment that
Elon Moreh makes no contribution to Israel’s security, either in fight-
ing hostile terrorist activity in times of tranquility or in the event of a

war on the eastern front, because a civilian settlement, sited on a hill

some two kms. from the Nablus-Jerusalem Road, cannot ensure this
traffic axis, especially as close to this road itself there is situated a large
Army camp, dominating the southward and eastward traffic axes. On
the contrary, says Lt. Gen. ).seR( Bar-Lev, because of hostile terrorist
activity in time of war, IDF troops will be restricted to guarding the
civilian settlement instead of waging war against the enemy army. The

answer to these objections which emerges from Lt. Gen. Eitan’s af-
fidavit is that the major importance of a civilian settlement at the place
under question does not lie in fighting hostile terrorist activity. Nor

was this the consideration of the C-G-S in requisitioning the place. Its
main importance is likely to be manifested precisely in time of war.
for then the base which Lt. Gen. Bar-Lev speaks of will be emptied of
 410 APPENDICES

its occupants, and in respect of its arms, equipment and standard of

training a civilian settlement integrated as it is today in the regional
defence system does not compare with a civilian settlement of past years.
The opinion of Maj. Gen. ).seR( M. Peled is detailed and its con-
clusion is that “the argument about the security value assigned to the
Elon Moreh settlement is not put in good faith and has only one

purpose: to justify a seizure of land which cannot be otherwise justi-

fied”. I have not, however, found therein any reference to Lt. Gen.
Fitan’s central reason, the function of a settlement on that site as a
strong point to protect freedom of traffic along the nearby axes when
reserve forces are deployed on the eastern front in wartime.
As for the view of Lt. Gen. Bar-Lev and the other military experts
who think as he does, I have no intention of involving myself in the
debate and it is enough for me to reiterate here what we said in Amirah

v. Minister of Defence )1980( 34 P.D. )1( 90 (the Matityahu case):

In a dispute such as this on professional-military questions, as to

which the Court has no well-based knowledge of its own, we
shall presume that the professional reasons set out in the affidavit
made on behalf of the respondents and speaking for those actual-
ly entrusted with preserving security in the Administered Ter-
ritories and within the Green Line, are correct. Very convincing
evidence is needed to rebut this presumption.

In the same case it was also said that:

In matters of professional military assessment, the Government

will certainly be guided first and foremost by the advice tendered
to to it by the Chief of the General Staff.

It is true that we spoke there of “the affidavit made on behalf of

the respondents” whilst here the respondents are divided in their
views. We heard, however, from Mr. Bach, the learned State Attorney,
who pleaded for the first four respondents, that despite his contrary
opinion, the Minister of Defence accepted the decision of the Govern-
ment majority and in fulfilling his constitutional obligation, as the
person made responsible for the Army by the Government under section
)b(2 of Basic Law: The Army, passed on the decision of the Govern-
ment to the C-G-S for implementation.
Central to the hearing of this petition must be an analysis of the
facts in as far as these have been revealed in the evidence properly
 APPENDIX A: SELECTED JUDGMENTS All

before us and particularly in the light of our decision in But

before I come to that, I must first complete the description of the
facts themselves because we received further factual material in the
written reply of the C-G-S to the interrogatories we drew up after
hearing the main oral submission of counsel for the parties, instead
of the oral cross examination which petitioners’ counsel requested.
The replies to the interrogatories and the additional documents which
the learned State Attorney was given leave to put in to supplement the
replies to the interrogatories, threw further light on the facts of the

case and broadened and deepened our understanding and appraisal of

the facts, beyond that which was contained in Lt. Gen. Eitan’s af-
fidavit and the first affidavit of Mr. Aryeh Naor, the Government
Secretary, which mentioned the decisions of the Ministerial Defence
Committee and of the Government on the appeal from that Com-
mittee. The following is the picture ultimately disclosed.

)1( On 7 January ,1979 following an illegal demonstration (“an

unapproved demonstration”, as the Government Secretary puts it in
his affidavit) of persons from “Gush Emunim” on a road in the
Nablus area, a discussion was held by the Ministerial Defence Com-
mittee in which the following resolution was adopted:

)A( The Government views of the ‘Elon Moreh’ nucleus as a

candidate for settlement in the near future.
)B( The Government will decide on the time and place of the
settlement in accordance with the appropriate considera-
tions.
)C( When determining the area of settlement for “Elon
the Government will as far as possible take into
deration the wishes of this nucleus.
)D( The ‘Elon Moreh’ persons must now return to the camp
which they left.

)2( Following this resolution of the Ministerial Defence Committee.

a preliminary tour was made by representatives of the Ministerial

Settlement Committee (emphasis in the original) designed to find an

area suitable for the settlement of the ‘Elon Moreh’ nucleus, and give
alternative places in the region which were suggested to the IDF for
examination. Those charged with the matter in the Judea and Samaria
Region Command and in the General Staff examined all the suggested
412 APPENDICES

sites and decided, out of IDF considerations, that two of them should be

gone into more thoroughly. One of these two places is that recom
mended by the Minister of Agriculture, who is chairman of the Minis-
terial Settlement Committee and a member of the Ministerial Defence
Committee, and the second is the site finally chosen by the IDF and
this is the subject of the petition (Replies of the C-G-S to the inter-
rogatories, para. .))d(2
The Judea and Samaria Command examined the possibility of find-
ing some area in the Region which was not privately owned but failed
to do so ,.dibi( para. .))e(2

)3( On 11 April 1979 (apparently after the above preliminary tour

and as a result thereof) the C-G-S gave his approval to the General
Staff personnel charged with the matter to requisition the area for
military needs ,.dibi( para. .))b(2

)4( In anticipation of the discussion which was to be held by the

Ministerial Defence Committee, the C-G-S was asked to give his
opinion, and on 3 May 1979 the said General Staff personnel were
again informed by his Chief of Staff that in his view a military need —
existed to requisition the area .).dibi(

)5( The opinion of the C-G-S was also brought to the knowledge
of the Ministerial Defence Committee when it dealt with the estab-
lishment of the settlement at its meeting of 8 May 1979 .dibi( and

para. 4 the Government Secretary’s first affidavit). At that meeting

the Ministerial Defence Committee decided to support the Requisition
Order for military needs (Government Secretary’s first affidavit, para.
.))a(3

)6( On 30 May 1979 the Ministerial Defence Committee confirmed

its decision of 8 May 1979 ,.dibi( para. .))b(3

)7( The Deputy Prime Minister objected to the decision of the

Ministerial Defence Committee before the Government in plenum,
and on 3 June 1979 the Government rejected his objection and by a
majority approved the decisions of the Ministerial Committee.

)8( On 5 June 1979 Brig. Gen. Ben-Eliezer (the Military Comman-

der of the Judea and Samaria Region) signed the Requisition Order,
and on 7 June 1979 the settlers occupied the land with Army help,

as recounted above.
 APPENDIX A: SELECTED JUDGMENTS 413

At this point, I shall dispose of two submissions made by Mr.

Zichroni, on behalf of petitioner No. ,17 before going into the details
of this present petition. He urged that there was a constitutional
defect in the process of adopting the decision on the establishment of
the settlement. Under Basic Law: The Army, it is the Minister of
Defence who is the C-G-S’s superior and therefore his view on mili-
tary matters takes precedence over that of the C-G-S and it also takes
precedence over that of the Ministerial Defence Committee and that
of the Government itself, both of which operate under Basic Law:
The Government. It follows that the Government (or the Ministerial
Defence Committee) was not competent to decide contrary to the
opinion of the Minister of Defence. This argument is substantial. Al
though the Minister of Defence is responsible for the Army on behalf
of the Government under section )b(2 of the Basic Law: The Army.
the Army as a body is subject to the Government under section )b(2
of the same Basic Law, and the C-G-S is likewise subject to the Gov-
ernment under section ,)b(3 although he is directly subordinate to
the Minister of Defence, as provided in that same section. Hence, so
long as the Government has not pronounced on some subject, the
C-G-S must carry out the instructions of the Minister of Defence. But

once a matter has been brought before the Government, it is the

Government’s decision which binds the C-G-S; and the Minister of
Defence is just one member of the Government and as long as he
remains a member of the Government, he, along with his Ministerial
colleagues, bears collective responsibility for its decisions, including
those taken by a majority against his contrary view. The same applies
to Ministerial Committees, standing or ad hoc, appointed by the
Government under section 27 of the Basic Law: The Government.
since failing objection to the plenum or on rejection of an objection,

a decision of a Ministerial Committee is treated like a decision of the

Government, as provided in clause )c(32 of the Rules of Government
Practice.
It is now possible to deal with the main question: whether the estab-
lishment of a civilian settlement at the site in question can be justified
in law, if for that purpose privately owned land was requisitioned?
In Beit-El we gave an affirmative answer to a similar question, both
according to internal municipal Israeli law and according to customa-

ry international law, since we were convinced that the needs of the

Army necessitated the establishment of the two civilian settlements
 4 APPENDICES

involved in that case at the places where they were established. It is

self-evident—and Mr. Bach also informed us that the matter had been
fully explained during Government discussions—that in that judgment
this Court did not give legal authority in advance for every seizure
of private land for civilian settlement in Judea and Samaria; each case
must be examined to ascertain whether military needs, in the sense
in which this term must be interpreted, in fact justify the seizure of the
private land.
At the commencement of the present hearing—unlike in Beit El—
two settlers at the Elon Moreh site, who are members of the secretariat
of the settlers’ nucleus, were given leave to be joined as respondents
to this petition. Judge Y. Cohen, who dealt with the application,
having found that they have a real interest therein. In their affidavit
and their submissions these additional respondents opened a wide
vista, far beyond that of the original respondents. An affidavit by one
of them, Mr. Menachem Reuven Felix, explained that the members
of the nucleus had settled at Elon Moreh because of the Divine
commandment to inherit the land given to our forefathers and that
“the two elements of our sovereignty and our settlement, are therefore
intertwined”; and that “the act of settling the People of Israel in the
Land of Israel is an act of real security, the most effective and the
most genuine. Settlement as such... does not, however, stem from
security reasons or physical requirements but from the force of destiny
and by virtue of the Return of Israel to its land.” And he goes on to
declare:

Elon Moreh is the very heart of the Land of Israel in the

profound sense of the word—indeed geographically and strat-
egically but before all else it is the place where this land was
first promised to our first forefather, the place where the first
acquisition was made by the father of the nation after whom
this land is named—the Land of Israel... Consequently, for
all that the security reason has its proper place and its genuine-

ess is not in doubt, for us it is a matter of indifference.

And after citing Numbers :33 you shall take possession

of the land and dwell therein, for unto you I have given the land to
inherit it’—he goes on to say:

Whether or not the Elon Moreh settlers will be integrated into

the regional defence system according to IDF plans, settlement
 APPENDIX A: SELECTED JUDGMENTS 415

in the Land of Israel, which is the mission of the Jewish people

and of the State of Israel, is itself the security, the peace and
the well-being of the nation and the State.

As regards the petitioner’ arguments based on international law,

including various international treaties, the deponent adopts the expla-
nation which he received from his counsel, that they are totally
irrelevant, since the dispute is internal between the Jewish people
returning to its land and the Arab residents of the land of Israel and
what is involved is neither “conquered territory” nor “occupied terri-
tory” but the very heart of the Land of Israel, our right to which is
beyond doubt; and secondly since in historical fact Judea and Samaria

were part of the British Mandate and conquered by force of arms

by our eastern neighbour—a conquest and annexation which were

never recognized by anyone (other than England and Pakistan). This

is the substance of the affidavit.
Those also who do not share the views of the deponent and his
companions will respect the profound religious belief and self-sacrifice
spurring them on. We, however, sit in judgment in a State based on
law in which the Halakha (religious law) is applied only in so far

as secular law allows it, and we must apply the law of the State. As
to the deponent’s view concerning title to land in the Land of Israel,
I assume that he does not mean to say that according to the Halakha

one may forthwith deprive non-Jews of their private property. The

Bible says explicitly: “The stranger that sojourneth with you shall
be unto you as the home-born among you, and thou shalt love him as
thyself for ye were strangers in the land of Egypt” (Leviticus .)1934
I find in the collection of literature submitted by counsel for the ad-
ditional respondents that Chief Rabbi Y.Z. Hertz, of blessed memory,
mentioned this verse when the British Government sought his opinion

on the draft text of the Balfour Declaration. In reply he said that men-
tion of the civil and religious rights of the non-Jewish communities in
the draft declaration were simply a translation of this basic principle from
the Torah. (Palestine Papers ,19171922 Seeds of Conflict (John
Murray), p. .)13 That was the authentic voice of Zionism which
insits on the Jewish people’s right of return to its land, a right
recognized also by the nations, as in the preamble to the Mandate

on Palestine, but which has never sought to deprive the residents of

the country, members of other peoples, of their civil rights.
 6 APPENDICES

This petition contains an irrefutable reply to the argument which

inclines to construe the historic right promised to the Jewish people
in the Book of Books as derogating from property rights under the

law of private property. The scope of the hearing of this petition is

delimited primarily by the Requisition Order issued by the Regional
Commander, and the immediate source of the Order is on all views
the powers that international law vests in the military commander in
territory captured by his forces in war. The scope of the hearing is
also delimited by the basic legal principles followed by the Israeli
Military Commander in Judea and Samaria—that also according to
the laws of war in international law. These basic principles are found
in Proclamation No. ,1 published by the Military Commander
7 June ,1979 according to which the IDF entered the Region on the
same day and assumed control and the maintenance of security and
order there; as well as in Proclamation No. ,2 of the same date, para.
2 of which provides that

the law which existed in the region on 7 June 1967 shall remaia
in force insofar as it is not inconsistent with this Proclamation

or any other Proclamation or Order made by me, and with the —

changes flowing from the establishment of IDF rule in the
Region.

Mention may also be made of para. 4 of the same Proclamation, im

which the Military Commander of the Judea and Samaria Region
declared:

Movable and immovable property... which belonged to or was

registered in the name of the Hashemite Jordanian State or
Government, or any of its units or branches or any part thereof,
situated in the Region, shall pass into my exclusive possession
and be under my administration.

These Proclamations constitute the legal basis for the Military

Government in Judea and Samaria, which exists there to this day,
without having been replaced by another form of government. Mr.
Rahamim Cohen, representing the additional respondents (members
of the “Gush Emunim” nucleus) drew our attention to section 1 of
the Area of Jurisdiction and Powers Ordinance, ,1948 which provides
that “Any Law applying to the whole of the State of Israel shall be
deemed to apply to the whole area including both the area of the
 APPENDIX A: SELECTED JUDGMENTS 417

State of Israel and any part of Palestine which the Minister of Defence
has defined by proclamation as being held by the Israel Defence
Forces.” Although the Minister of Defence has not issued any pro-
clamation defining Judea and Samaria as being held by IDF, for the

purposes of this section the main point, Mr. R. Cohen says, is that the
Provisional Council of State as the sovereign legislature of the State
of Israel empowered the Minister of Defence to issue orders in relaticn
to every part of the land of Israel .)enitselaP( This very authorization
attests that the Provisional Council of State, as the legislative authority,
regarded the State of Israel as possessing sovereignty over all of the
land of Israel .)enitselaP(
The argument is incisive but must be rejected. The Minister of
Defence in fact made no order under his powers in section 1 of the
Ordinance relating to Judea and Samaria (neither has the Govern-
ment of Israel applied the law of the State of Israel to the Region,
as it did in relation to East Jerusalem by an Order under section 11B
of the Law and Administration Ordinance, .)1948 In dealing with the
legal basis of Israeli rule in Judea and Samaria, our concern is with
legal norms which exists in fact and not only in theory, and the basic

norm upon which the structure of Israeli rule in Judea and Samaria
was erected is still today, as I have said, the norm of military goy-
and not the application of Israeli law that entails Israeli
sovereignty.
Here one should recall, as in earlier petitions to this Court, the
important argument which Israel has voiced in the international arena.
The rests on fact that upon the entry of the IDF into Judea
and Samaria, this area was not occupied by any sovereign whose
occupation had won general international recognition. Mr. Rahamim
Cohen reiterated this argument with great force. In Beit-El I said that:
“We have not been asked to deal with this problem in this petition
and this reservation therefore combines with the group of reservations
about which I spoke in Abu Helou v. State of Israel )1973( 27 P.D.
)2( 169 and which remain open in this Court.” I think that is likewise
in the petition before us since it can only be decided in accordance
with the presumptions underlying the Requisition Order. These pre-
sumptions mark out the scope of this hearing for the additional res-
pondents as well.
We must therefore inquire into the legal validity of the said Requi-
sition Order according to international law from which the Military
 8 APPENDICES

Commander who issued it derives his powers. In addition, we must

also inquire whether the Order was lawfully issued under municipal
Israeli law since—as in the Rafiah Salient case )1973(( 27 P.D. )2(
,169 176)—-we assume here as well that warrant for this inquiry exists
personally against office holders in the Military Government, as indi-
viduals who exercise any public functions by virtue of law and are
subject to the supervision of this Court, under section 7 )b( )2( of
the Courts Law, .1957 Substantively, we must inquire whether according
to Israeli domestic law the Requisition Order was lawfully issued
under the powers given to the Government and the military authorities
in Basic Law: The Government and Basic Law: The Army. We
conducted these two inquiries—that under Israeli municipal law and
that under international law separately in Beit-El. Here I have already
dealt above with the argument under the Basic Laws mentioned about
the decision-making process concerning the requisitioning of land at
governmental level. The main discussion can now proceed with the
two aspects combined, since customary international law in any event
forms part of Israeli law to the extent that it does not conflict with
local statutory law (see Beit-El).
Counsel for all parties concentrated their arguments on comparing
the matter before us with the facts in Beit-El and what was decided
there, one side seeking to show the similarity between the two cases
and the other stressing the differences between them. Mr. Bach went

on to repeat the plea he had advanced in Beit-El and was rejected

there in unequivocal terms. As my learned colleague, Witkon J., put
it,

I have not in the least been impressed by this submission...

On the presumption—which does not apply in this case—that

a person’s property has been unlawfully impaired or denied him,

it is difficult to believe that the Court will turn him away because
his right may arise for discussion in political negotiations. This
submission has not added weight to the other submissions of
the respondents.

For my part, I added that although the special aspect of the matter
calling for an interpretation of Article 49 )6( of the Geneva Con-
vention as non-justiciable, the petitioners’ claim in general is justiciable
in this Courts since property rights of the individual are involved.
Mr. Bach says that his argument was not correctly understood, for
 APPENDIX A: SELECTED JUDGMENTS 419

he intended to say that the question of justiciability is a function of

the issue concerned, and that issue is on the one hand in sharp dispute
politically and on the other hand what is involved is not cultivated
land but rocky land, some distance from the village of Rujeib itself;
and he cited again an article of Professor Jaffe in 74 Harvard Law
Review ,1265 .13021304
The argument was well understood on that occasion and to rehearse
it does not add force to it. I excluded Article 49 )6( of the
Convention altogether from consideration because it belongs to con-
yentional international law which does not legally bind an Israeli
court, but I joined in the view of my distinguished colleagues regarding
the justiciability of the question within the bounds of the Hague Rules
which bind the Military Government in Judea and Samaria as customary
international law. Here also I shall proceed in similar fashion and
refrain from dealing with the issue before us within the bounds of
Article 49 )6( of the Geneva Convention. Insofar, however, as private
property rights are concerned, the matter cannot be resolved by the
argument of the ”ytivitaler“ of the right. In our legal system the right
of private property is an important legal value protected by both civil
and criminal law, and as regards the right of an owner of land to
legal protection of his property, it is immaterial whether the land is
cultivated or barren.
The principle of protecting private property applies also in the law
of war which found expression in this matter in Article 46 of the
Hague Rules. A military government wishing to affect the individual’s
property rights must show legal warrant therefore and cannot exempt
itself from judicial review of its acts by pleading non-justiciability.
Mr. Zichroni, on his part, tried to distinguish our decision in Beit-El
since there the ourt upheld the establishment of a civilian settlement
for military needs bound up with the fight against hostile terrorist
activity in times of tranquility whereas here the C-G-S has in his
affidavit emphasized mainly the military need for the existence of a
civilian settlement at the place in question in the event of actual war

on the eastern front. There is, however, no foundation for this dis-
tinction. Beit-El as well concerned the needs of regional defence designed
to fit into the general defence system of the State in wartime—see
the quotation from Maj. Gen. Orly’s affidavit and also by observation
)ereht( that “the powers vested in the Army in a time of active
warfare and in a time of tranquility cannot be neatly separated. Even
420 APPENDICES

if quiet at present prevails in the area near Beit-El, prevention is better

than cure.” My learned colleague, Ben Porat said the same with
greater emphasis. And again in the Matityahu case we said that the
situation is not to be regarded statically, oblivious of what may occur
sometime in the future, as a result of either external or internal
hostile activity in the administered territories, and that proper military
planning requires taking into account not only existing dangers but
also dangers that are likely to be created as a result of dynamic
developments in the area.
The question therefore remains: Have the respondents shown
sufficient legal warrant for seizing the petitioners’ lands? The Requi-
sition Order was issued by the Military Commander and begins by
saying, as will be recalled, that the Order is being issued “by virtue
of my authority as Commander of the Region and being of the
opinion that the same is required for military needs”. It should be
mentioned here that in this Order the Regional Commander chose
from the outset a vaguer formula than that in the Beit-El matter,
where the Requisition Order stated that the seizure of the area on
which the Beit-El camp stands and its environs would apply only
after eight years by the establishment of a civilian settlement “required
for essential and urgent military needs”. There we justified the establish-
ment of a civilian settlement on the basis of Article 52 of the Hague
Regulations, which enables possession being taken of land “for the
needs of the occupying forces.” I there cited Oppenheim who maintains
that temporary use of private land is permissible if it is essential “for
all kinds of purposes demanded by the necessities of war’, I men-
tioned also the British Manual of Military Law, according to which
the temporary use of land and buildings in private ownership is justified
for “military movements, quartering and the construction of defence
positions”. We rejected Mr. Khoury’s contention that the notion of
“the needs of the occupying forces” must be understood as including
only the immediate needs of the forces themselves, and we pointed
out that “the main function assigned to the army in occupied territory
is ‘to safeguard public order and security’, as provided in Article 43
of the Hague Regulations. What is required for achieving this purpose
is ipso facto required for the needs of the army in occupation, within
the meaning of Article ”.52
Up to this point I am at one with Mr. Bach that the seizure of
private land for the establishment of a civilian settlement can also
 APPENDIX A: SELECTED JUDGMENTS 421

be justified under Article 52 of the Hague Regulations—and we have

found no contrary precedent in international law. This, however,
obtains only when it is proved on the facts of the case that it was

army needs which actually led to the decision to establish a civilian

settlement at the site in question. I emphasize once again that there
should be no doubt in relation to the fact that according to Lt. Gen.
Eitan’s professional opinion the establishment of the civilian settlement
at that site fits in with the needs of regional defence, the special impor-
tance thereof being to ensure the lines of movement during the deploy-
ment of the reserve forces in time of war. But I have come generally to
the view that the professional outlook of the C-G-S would not in itself
have led to the taking of the decision to establish the Elon Moreh
settlement, were it not for another reason which impelled the Ministerial
Defence Committee and the Government in plenum to do so—the
strong desire of the members of Gush Emunim to settle in the heart
of Eretz-Israel, as close as possible to the town of Nablus. We were
unable to go into the deliberations of the Ministerial Committee and
the Government by inspecting the minutes, but even without that we
have sufficient indications in the evidence before us that both the
Ministerial Committee and the Government majority were decisively
influenced by Zionist views on the settlement of Eretz-Israel as a
whole. That view emerges clearly from the statement made by Mr.
Bach on behalf of the Prime Minister during the hearing im court

on 14 September 1979 in reply to para. 6 of the affidavit of the ad-

ditional respondents, to which I had drawn attention at the hearing
of the previous day. I took down Mr. Bach’s statement verbatim
because of its importance and the standing of the person in whose

name Mr. Bach was speaking:

I spoke with the Prime Minister and he authorized me to state

after the subject came up in yesterday’s session, that on many
occasions, both at home and abroad, the Prime Minister has
stressed the Jewish people’s right to settle in Judea and Samaria
but this is not necessarily connected with discussions in the
Ministerial Defence Committee about concern over national de-
fence and State security, when a specific question of requisitioning

one or other side for security needs comes up for discussion

and decision. In the Prime Minister’s view there is no inconsistency
here, but two separate matters are involved. As to what was
422 APPENDICES

said about the Prime Minister’s intervention, this took the form
of bringing up the matter for discussion by the Ministerial De-
fence Committee, the Prime Minister being the
chairman and para. )a(27 of the Rules of Government Procedure
providing that as regards the Committee’s deliberations the Prime
Minister fixes the agenda on his own initiative or on application
by a member of the Committee. He took part in the Committee’s
discussion and expressed his clear and unequivocal opinion in
favour of issuing the Requisition Order for the establishment
of that settlement. This, as I have said, having regard inter alia
to the opinion of the

The view about the right of the Jewish people, mentioned at the
outset of the above statement, rests firmly on Zionist doctrine. But
the question still remains for this Court in this petition whether that
view justified the taking of private property situation in an area
subject to rule by military government—and, as I have tried to
explain, the answer depends on the correct interpretation of Article
52 of the Hague Regulations. I urge that the military needs referred
to in that Article cannot include, on any reasonable interpretation,
national-security needs in the broad sense I have just mentioned. Let

me quote Oppenheim, ibid, para. ,147 p. :410 |

According to Article 52 of the Hague Regulations, requisitions

may be made from municipalities as well as from the inhabitants,

but so far only as they are really necessary for the army of
occupation. They must not be made in order to supply the
belligerent’s general needs.

Military needs within the meaning of Article 52 can therefore include

the needs of which the C-G-S spoke in his affidavit in reply, that
is, the needs of regional defence and defence of the lines of movement
for the uninterrupted deployment of reserve forces in time of war
In its discussions the Ministerial Defence Committee decided as @
did “having regard inter alia to the opinion of the CGS.” =
the words of Mr. Bach. The Ministerial Committee’s
of 7 January 1979 cited above assured Gush -Emunim that the
Government would decide on the time and place of the
“in accordance with the appropriate considerations,” and that whem
determining the area of settlement the Government would as far
 APPENDIX A: SELECTED JUDGMENTS 423

possible take into account the wishes of the Elon Moreh settlement

nucleus. I shall not err if I assume that what Mr. Bach stated in the

mame of the Prime Minister reflects the spirit of the discussions in

the Ministerial Committee. I do not doubt that the opinion of the
C-G-S indeed figured among the other of the Committee’s consider-
ations, but in my view that is not sufficient to bring the decision within
the bounds of Article .52 The following are my reasons:
)a( When military needs are involved, I would have expected the
Army authorities to initiate the establishment of the settlement pre-
cisely at that site, and the C-G-S on his initiative to put the Army’s
request to the political echelon so that it could approve the settlement’s
establishment, it if found no political reasons to prevent it. The
davit of the C-G-S does indicate indeed that such was the decision-
taking process. Were it so, I would say that the very course of the
events attests to the fact that professional military consideration was
dominant in the discussions at the political level. But the fuller picture
obtained after the C-G-S replied to the interrogatories put to him and
the additional documents submitted by Mr. Bach show clearly that
the process was otherwise. The initiative came at the political level
which asked the C-G-S to give his professional opinion, and then
the C-G-S expressed a positive view in accordance with the con-
ception he has always held. This is absolutely clear from the replies
of the C-G-S to the interrogatories, in para. :2

)a( To the best of my knowledge the body that initiated the

establishment of the settlement in the Nablus area was
the Ministerial Defence Committee.
)b( I did not approach the political level with a proposal to
establish a settlement at Elon Moreh...
)c( No plan existed, approved by an authorized military ele-
ment for the stablishment of a civilian settlement at the
given site.

It also is clear from one of the additional documents that on 20

September 1973 the then O/C Central Command, Maj. Gen. Rehavam
Ze’evi, submitted to the then C-G-S a detailed proposal for settlement
in the administered territories. On the establishment of agricultural
settlements in Samaria it is there stated that “this is difficult due to

a shortage of vacant We gather from this that the view prevailing

at the time was still that no privately owned land should be taken for
 4 APPENDICES

the establishment of settlements. And this in fact was urged by Maj.

Gen. Orly in July ,1978 in HJC 32178 (the Nebi Sallah case):

.7 At the place intended for settlement near the village of

Nebi Sallah, those acting on behalf of the respondents were
guided by the principle laid down by Government policy
not to take for settlement purposes land in private ownership.

In the present petition we find some change from this position.

Para. 5 of the first affidavit of the Government Secretary states in this
regards:

In answer to the petitioner’s submissions concerning Government

policy on requisitioning land:
)a( I hereby make it clear that the Israeli Government’s aim
of not requisitioning private land, as far as that is possible and
compatible with security needs, continues to prevail.
)b( When the Government thinks that the need of security
demands it, the acquisitionof private land is approved but IDF
personnel are instructed to exclude as far as possible from the
requisitioned area land under cultivation.

As to Maj. Gen. Ze’evi’s plan, it is to be observed that his proposals

did not win the approval of any authorized military or civilian element.
The plan contained a proposal to establish a Jewish city in the vicinity
of Nablus, not at the site now chosen for establishing the Elon Moreh
settlement but not far from it.
In para. 4 of his replies to the interrogatories, the C-G-S answers
the question: “Did you approve the establishment of a civilian settle-
ment at the site in question because you thought from the start that it
was required there for regional defence purposes, or because you
found ex post facto that if a civilian settlement were established at
this site it would fit in with the regional defence as follows:

I approved the requisitioning of the land, the subject of the

petition, for the purpose of establishing the settlement because
it suited military needs in this area as I conceived them from
the outset and accorded with my views on security concerning
the State of Israel’s defence and security needs, as explained
in paras. 920 of the principal affidavit.
 APPENDIX A: SELECTED JUDGMENTS 425

However, when the original view of security needs did not lead to

any initiative to establish the settlement at that site but approval only
came subsequently in response to initiative at the political level, I
do not think that this passive approach testifies that from the outset
military necessity existed to take private land for establishing a civil-
ian settlement, within Article 52 of the Hague Regulations. It has,
therefore, not been shown on this occasion, that in establishing a civil-
ian settlement the army authorities advanced military thinking and
military planning regarding settlement, as we said in the Beit-El

case.
)b( Further as to military necessity, I cited above the text of the
Ministerial Defence Committee’s decision at its meeting of 7 January
,1979 as set out in the Government Secretary’s second affidavit. The
discussion at that meeting, it will be recalled, took place as a result
of a demonstration by Gush Emunim members on a road near Nab-
lus. The decision stated that “When determining the area of settle-
ment for Elon Moreh the Government will as far as possible take
into consideration the wishes of this nucleus”, and, as if in con-
sideration of this assurance, the Elon Moreh members were required

to return to the camp they had come from, that is, to desist from
unlawful demonstration. This I regard as clear proof that it was

pressure by the Gush Emunim that impelled the Ministerial Com-

mittee at that meeting to deal with the subject of civilian settlement
in the Nablus area. Subsequently, the matter went to the Ministerial
Settlement Committee for it to send its representatives on a preli-
minary survey for selecting the feasible sites for establishing a settle-
ment for the Elon Moreh nucleus in the vicinity of Nablus. The
representatives chose five sites, and of the five the IDF approved
the site in question. It follows that the IDF had no part in determin-
ing these five sites but faced the choice of selecting one of five sites
determined at the political level. This procedure is inconsistent with
the language of Article 52 which in my view calls for demarcation
of certain land precisely because that land is required for military
needs; and, as I have said, it is natural that the initiative for this
should come at the military level, expert in Army needs and planning
them in advance in accord with military thinking.
On this matter, Mr. Bach submitted that the Army must consider
whether there are candidates for civilian settlement prepared to go
to the place where their settlement is required for military needs. I
426 APPENDICES

agree but again provided that military planning approved by com-

petent authority precedes the search for candidates for settlement on
the given site. Here the reverse occurred: first came the wish of the
members of the Elon Moreh nucleus to settle as close as possible to
the town of Nablus, and only then and as a result of the pressure
they exerted did approval come at the political level and eventually
also at the military level. The political consideration was therefore
the dominant factor in the Ministerial Defence Committee’s decision
to establish the settlement on that site although I assume that the
Committee and a majority of the Government were convinced that
its establishment also serves military needs; and I accept the decla-
ration of the C-G-S that on his part he did not take into account
political considerations, including the pressure of the Gush Emunim
people, when he came to submit this professional opinion to the
political level. But a secondary reason, such as the military reason
behind the decisions of the political level which initiated the settle
ment’s establishment, does not comply with the precise requirements
laid down by the Hague Regulations in giving priority to military
necessity over private property rights. In other words: would the
decision at the political level to establish the settlement at that site
have been adopted had it not been for for Gush Emunim pressure
and the ideological-political reasons contemplated at the political
level? I have been convinced that were it not for the latter, the
decision would not have been adopted in the circumstances then
prevailing.
I wish to add a few words about the dominant as against the
subordinate reason for the decisions taken by government authority.
In Berger v. Haifa District Planning Commission )1973( 27 P.D. )2(
,764 ,773 Cahan J. mentioned the discussion of “plurality of pur
poses” in the third edition of de Smith’s Judicial Review of Admin
istrative Action, pp. 287 et seq., and of the five tests proposed there
chose one—did the invalid consideration or invalid purpose really
effect the authority’s decision? For my part I am prepared to 40006 |
the more lenient test proposed by de Smith at :289

What was the dominant purpose for which the power was exer
cized? If the authority is seeking to achieve two or more purposes
when one is permitted, expressly or impliedly, the legality of the
act is judged according to the dominant purpose.
 APPENDIX A: SELECTED JUDGMENTS 427

In footnote 74 the author cites examples of English case law in

which this principle was applied. From what I have explained above
at length it is clear what the result must be of the application of this
test in the circumstances of the present case, when the initiative for
establishing the settlement came not at the military level. 1 quote the
observations of the author, p. ,291 which also appear to me to be
relevant here:

...1t is sometimes said that the law is concerned with purposes.

but not with motives. This view is untenable insofar as motive
and purpose share a common area of meaning. Both are capable
of meaning a conscious desire to attain a specific end, or the
end that is desired. In these senses an improper motive or purpose

may, if it affects the quality of the act, have the effect of render-
ing invalid what is done.

)c( I have still not dwelt on an additional ground impelling the

invalidation of the decision to seize possession of the petitioners’
land—a ground which stands on its own, without regard to the other
grounds which I have so far specified. Already in Beit-El the serious
question arose of how it is possible to establish a permanent settle-
ment on land seized only for temporary use. There, we accepted Mr.
Bach’s answer

that the civilian settlement can only exist in that place so long

as the IDF occupy the area by virtue of the Requisition Order-

This occupation can itself come to an end some day as a result
of international negotiations, leading to a new arrangement which
will take effect under international law and will determine the
fate of this settlement and of other settlements existing in the
occupied territories.

There, the settlers themselves made no submissions because they

were not joined as parties. Here this answer to the problem cannot be
accepted. The affidavit on behalf of the settlers states openly. in

para. :6

To base the Requisition Order on security grounds in the narrow

technical sense and not on the basic and embracing sense, as
explained above, means one thing—the temporary nature of the
settlement and its transitoriness. This frightening conclusion we
 428 APPENDICES

reject altogether. Nor is it consistent with the Government’s deci-

sion concerning our settling in the place. In all our contacts with
the Government Ministers and the many assurances we received
from them and above all from the Prime Minister himself—and
the said Requisition Order was issued on the intervention of the
Prime Minister himself—all regard the Elon Moreh settlement

as a permanent Jewish settlement, no less than Deganya or

Netanya.

This passage, it should be noted, comprises two parts: The first

relates to the view of the settlers, the second to what they heard
from Ministers. We were not asked to permit an affidavit in reply
to be submitted on behalf of the Government or any of its Ministers
to confute the statements attributed to them in the second part of
this passage. They may, therefore, be taken to be wholly true. If that
is so, the decision to establish a permanent settlement destined from
the outset to remain in its place indefinitely—even beyond the dura-
tion of the military government established in Judea and Samaria—

comes up against an insurmountable legal obstacle, because no mili-

tary government can create in its area facts for its military needs,
which are designed ab initio to persist even after the end of the
military rule in that area, when the fate of the area after the termina-
tion of military rule is still not known. It is a patent contradiction,
apparent also on the evidence before us in this petition, that the
decisive consideration which moved the political level to decide on
the establishment of this settlement was not the military considera-
tion. In these circumstances the legal form of only taking possession
and not expropriating ownership cannot change the face of things,
namely, the taking of possession which is the main ingredient of
indefinite ownership.
In view of the foregoing, the order nisi should in my opinion be
made absolute in respect of the petitioners’ lands seized under Order
No. .1679

Asher J. I concur.
Ben-Porat J. I concur.
Witkon J. I also am of the opinion that the law is with the petitioners.
As in Beit-El, here as well we must examine the acts of the autho-
rities both from the aspect of ”lanretni“ law ”lapicinum“( law ac-
 APPENDIX A: SELECTED JUDGMENTS 429

_@erding to the accepted terminology in this context) and from the

_ @spect of international law. These are two separate matters, and as

I said in Beit-El:

The act of a military government in occupied territory may be

justified from the military-security aspect and yet possibly be
defective from the international law aspect.

The internal law to be dealt with is the law contained in two Orders,
which the Commander of the Judea and Samaria Region issued by
virtue of his powers as Commander of occupied territory (Orders
No. 1679 and .)1779 In these orders the Commander stated that
he “is of the opinion that the matter is required for military needs”,
and declared that the areas were requisitioned “for military needs”.
There is indeed no dispute in point of internal law and in fact also
of customary international law (the Hague Convention) that the
validity of the Orders depends upon their being made “for military

We have already enlarged on the nature of “military necessity”

and the extend to which we may interfere with the discretion of the
military elements: Abu Helou v. The Government )1973( 27 P.D. )2(
169 and Beit El. Repeatedly we have emphasized that the bounds of

our interference are limited. In Beit-El I said that power “is vested
in the military, and before interfering in its use thereof the Court
must be convinced that the power was misused and as a pretext for
other purposes”. Similarly my learned colleague, the Deputy Presi-
dent said there:

It has repeatedly been stressed, also in Abu Helou, that the limits
of interference by this Court in the military considerations of the
Military Government are very narrow, and a judge will, in par-
ticular, certainly refrain from substituting his own views about
political and security matters for the military considerations of
those entrusted with the defence of the State and the maintenance
of public order in occupied territory.

And we also explained in Beit-El that military-security need and

the establishment of a civilian settlement are not inconsistent:

The main thing, however, is that, as regards the pure security

aspect, it cannot be doubted that the presence in occupied ter-
430 APPENDICES

ritory of settlements—even settlements—of citizens of

the occupying power contributes appreciably to security in that
territory and makes it easier for the army to carry out its task.
One does not have to be a military and security expert to realize
that terrorist elements operate more easily in an area inhabited
only by a population that is indifferent or is sympathetic towards
the enemy than in an area where there are also persons likely
to look out for them and to report any suspicious movement to
the authorities. Among the latter, terrorists will find no hideout,
assistance or supplies.
The matter is simple and needs no elaboration. Let us mention
only that, according to the affidavits of the Respondents, the
settlers are subject to army control, either formally or by the
force of circumstances. They are there by virtue and with the
permission of the Army. I therefore still adhere to the view I
held in the Rafiah Approach case that, as long as a state of
belligerency exists, Jewish settlement in administered territory

serves actual security purposes.

It is superflous to stress that in all our observations in these two

judgments (and in others like them), we did not lay down that
henceforth every civilian settlement in occupied territory serves
tary purposes. We held that we must examine each case according
to its circumstances. There we were satisfied that the requisitioning
for establishing a civilian settlement did in fact serve a security pur

pose. Here I am not satisfied that this was the purpose.

How does the present case differ from previous cases? The most
important difference is that here even the experts entrusted with the
security of the State are divided in opinion on the necessity of settle
ment at the place in question. There, as here, the security authorities
put in affidavits with the purpose of persuading us of the military-
security need for requisitioning land and establishing thereon civilian
settlement. But whereas there the evidence was uniform and
vocal, here, with regard to Elon Moreh, it emerges from the evidence
before us that the very military need is in dispute among the experts.
An affidavit by Maj. Gen. ).seR( Matityahu Peled was submitted on
the part of the petitioners and similarly a letter from Lt. Gen. ).seR(
Haim Bar-Lev, which should be quoted in full:
 APPENDIX A: SELECTED JUDGMENTS 431

To the best of my professional judgement Elon Moreh does not

contribute to the security of Israel and that for the following

reasons:
.1 A civilian settlement located on a hill at a distance from the
main ‘traffic arteries has no significance whatsoever in a war
against hostile terrorist activity.
Its very situation as an isolated point in the midst of an area
densely populated by Arab inhabitants is likely to facilitate
offensive attempts. To ensure protection of the settlement will
divert security forces from vital tasks.
.2 In the event of war on the eastern front, a civilian settlement
located on a hill some two kilometres east of the Nablus-Jeru-
salem road cannot facilitate the security of this traffic artery;
especially as a large military camp is located close to the road
itself, commanding the traffic arteries to the south and to the
east. On the contrary because of terrorist activity in time of war,
IDF forces will be tied up protecting the civilian settlement, in-
stead of engaging in the fight against the enemy army.

Beyond this, the petitioners averred in their petition that “as far

as they know from the news media, Respondent No. 2 (the Defence
Minister) has declared that there is no military or security need for
the area of land”. Generally we do not take account of hearsay in-
formation given but here confirmation of the differing opinion of the
Defence Minister is provided by the deponent on his behalf, the
C-G-S, Mr. Raphael Eitan, who says in para. )d(23 of his affidavit:

I am aware of the opinion of the second Respondent who does

not contest the strategic importance of the region under discus-
sion but thinks that security needs can be effectuated by means
other than establishing a settlement at the said place.

This difference between the Minister of Defence and the C-G-S on

the very need for requisition has no parallel in the entire case law of
Israel; and it is also difficult to cite an example from other countries
where a judge is required to choose between the opinions of two ex-
perts, one the responsible Minister and the other the man who heads
the executive establishment. The State Attorney sought to overcome
this difficulty by relying on Basic Law: The Army, section 3 which
 2 APPENDICES

provides: “The Chief of General Staff is subject to the authority of

the Government and is subordinate to the Minister of Defence”. It
is true, the State Attorney argued, that the C-G-S is subordinate to
the Minister but here the matter came to Government decision and
the Minister of Defence was in the minority. Hence the conflicting
opinion of the Minister is set at naught by the opinion of the majority
adopting that of the C-G-S. I fear that the State Attorney’s answer
begs the question. Basic Law: The Army is concerned with the order
of the chain of command of the three elements, the Government, the
Minister of Defence, and the C-G-S. In point of hierarchy, there is
really no doubt that the C-G-S is subordinate to the Minister and
both of them to the Government. Were the C-G-S to receive from the
Minister an order conflicting with another order received from the
Government, it is possible—and I do not wish to express any view
thereon—that it would be his duty to act in accordance with the
Government’s order and not the Minister’s. Here, however, the ques-
tion is not whose order takes precedence, but whose opinion is more
acceptable to the Court. A person (for example, a judge) may yield
to the opinion of his colleagues, but one cannot infer from the fact
that the Minister accepted the decision of the majority that he aban-
doned his conflicting opinion. On the contrary, we must assume that
he persisted in his opinion and left us the task of saying which of the
two opinions, his or that of the C-G-S, ought to be accepted by us.
As known, it is widely conceived that the courts are asked to decide
questions which require special expertise—expertise which is generally
not attainable by judges. The opinions of reputable experts, are sub-
mitted to us, which contradict each other completely. This sometimes

occurs in trials which raise medical problems and also, for example,
in cases of breach of patent involving problems in the fields of chemis-
try, physics or other natural science. In matters of security, when the
petitioner relies upon the opinion of an expert in security matters
and the respondent on that of another person who is both an expert
and the one responsible for the security of the State, special weight
naturally attaches to the opinion of the latter. As Landau J. said in
the Na’alin case (HC :)detropernu—25879 “In such a dispute over
professional military questions on which the court has no wellfounded
knowledge of its own, we presume that the professional reasons of
the deponent on behalf of the respondent, speaking for those actually
entrusted with maintaining security in the occupied territories and
 APPENDIX A: SELECTED JUDGMENTS 433

within the Green Line are correct’. According to this principle I might
possibly regard myself compelled to prefer the opinion of Lieut. Gen.
Eitan to that of Lieut. Gen. ).seR( Bar-Lev, although in point of
expertise I do not know who takes precedence. Since, however, the
choice is between the C-G-S and the Minister of Defence, it seems
to me that this principle cannot be applied. It cannot be said how-
soever that one is charged with the maintenance of security and the
other is not. Both of them are responsible.
In such an impasse, there being no occasion for presuming that
the deponent on behalf of the respondents is to be preferred to the
opinions of other experts, we must ask ourselves who bears the burden
of proof? Must the petitioners convince us that the land was not re-
quisitioned for the needs of the Army and security or should we
perhaps require the respondents, the security authorities, to convince

us that the requisition was needed for this purpose? I think that the
burden rests upon the respondents. The confirmation by the Com-
mander that the requisition was required for military needs—the law
does not accord thus the presumption and certainly not the force of
decisive evidence that such is indeed the case. Furthermore, we must
bear in mind that the sincere subjective belief of the Commander

as to the necessity of the requisition is not sufficient to exclude the

question from judicial review. It is not the sincerity of his judgment
but its accuracy that must convince us. (See the well-known debate

on Liversidge v. Anderson )1942( A.C. 284 and the article by R.F.V.

Heuston in 86 L.Q.R. .33 See also Ridge v. Baldwin )1964( A.C. 40
and the Kardosh cases )1961( 15 P.D. 1511 and )1962( 16 P.D.
.*)1209 The law I cited at the opening of my remarks makes the
legality of the requisition conditional on the existence of military
necessity; obviously the court will not sanction serious prejudice to a
person’s property unless it is satisfied that security needs are involved.
Nor did the State Attorney argue that he is free of the obligation of
persuasion and he took trouble to present to us all the material. As
I have said, where we have only evidence on the part of the respon-
dents or the respondents’ experts differ from the petitioners’ experts,
I might possibly give the respondents “the benefit of the doubt” that
I may harbour. Here, however, as I said, we have been told that the
Defence Minister himself is not convinced of the necessity of this

* [For English translation, see Selected Judgments of the Supreme Court of Israel,
Vol. IV, p. .]7
 434 APPENDICES

requisitioning. True, the post of Minister is political and he himself

need not be of necessity an expert in the affairs of his Ministry. But
here we have the conflicting opinion of a Minister of Defence who

—as former Chief of Staff and Commander of the Air Force—is him-
self a distinguished expert on security matters, a fact which the State
Attorney did not put into question. If such a Minister is not convinced,
how can it be asked of us, the judges, that we should be convinced?
If he sees no military necessity for establishing a settlement precisely
at this place, who am I to differ from him?
This is the principal reason that leads me to distinguish this case
from all the preceding cases and to arrive at a conclusion differing
from that reached in those cases. Two further, though less important
things are to be added to that. One is that in the Rafiah Salient case
and in Beit-El, 1 proceeded on the assumption that the Israeli settle-
ments established on lands requisitioned from their Arab owners are
essential for the security forces in their daily struggle against terrorists.
“One does not have to be a military and security expert”, I said in
Beit-El, “to realize that terrorist elements operate more easily in an |

area inhabited only by a population that is indifferent or is sympathetic

towards the enemy than in an area where there are also persons likely
to look out for them and to report any suspicious movement to the
authorities. Among the latter, terrorists will find no hide-out, as
sistance or supplies”.
Here, the C-G-S, Lieut. Gen. Raphael Eitan, explained to us that the
main security value in establishing a settlement on this site lies in its
integration into the regional defence system in the even of ”latot“

war. I have perused again the affidavit submitted to us at the time by

Maj. Gen. Yisrael Tal in the matter of the Rafiah Salient and find
that it only refers to terrorist operations in times of quiet. That was
also my impression of Maj. Gen. Orli’s opinion in Beit-El, although

on looking at his affidavit again, I found that he also spoke about

the needs of regional defence. These considerations were reflected in
the judgment of my colleague, Landau J., there. In any event, two
requisitioned areas were there involved, one actually on the route
of potential terrorists and the other bordering an important military

camp .)lE-tieB( There could have been no serious doubt that because
of the enormous strategic value of these two sites, they and only they
could fulfil a defence role and no alternative could be found for them.
Here, however, I cannot say that the matter is free of doubt.
 APPENDIX A: SELECTED JUDGMENTS 435

The third matter in which the present case differs from the pre-
ceding cases stems from the affidavit of the settlers. It will be recalled
that in the Beit-El affair, the settlers were not joined as respondents
to the petition and were not allowed to make any submissions; we
assumed that their presence on the area was wholly dedicated to
security needs and the defence of the homeland. In the words of my
learned colleague, the Deputy President, “Since the IDF is for the
most part a reservists’ army, the inhabitants of a civilian settlement
are under military command even individually”, whilst I said, “The
settlers are subject to army control, either formally or by the force
of circumstances. They are there by virtue and with the permission
of the Army. I therefore still adhere to the view I held in the Rafiah
Approach case that, as long as a state of belligerency existe, Jewish
settlement in occupied territory serves actual security purposes”.
This time, we have heard the representatives of the settlers them-

serves and it seems to me that we may not ignore the substance of

their argument. And I emphasize: I do not wish to refer to incidents
which occurred recently, in which members of Gush Emunim (among
them the settlers before us) were shown to be people who do not
accept the authority of the Army and do not even hesitate to give
violent expression to their opposition. I do not wish to refer to these
incidents since we do not have any authoritative knowledge of how
far the settlers before us identified themselves with the actions of
other persons in other places. I have therefore no intention of ques-
tioning whether if the settlers are called up to reserve duty, they will
not be subject to IDF rule like all other soldiers. Nevertheless, what
the deponent for the settlers said raises another question. He says,
in clear terms, that:

My friends in the Elon Moreh nucleus and I settled in Elon

Moreh because we were commanded to inherit the land which
the Most High G-d gave to our forefathers, Abraham, Isaac and
Jacob, so that it is not left forsaken in the hands of other peoples

or desolate (Maimonides—Book of the Commandments). The

two elements therefore of our sovereignty and of our settlement
are interdependent.
And he adds in the same affidavit:

Although on a cursory glance it seems as if there is no difference

between the motives of the settlers and the Requisition Order
 436 APPENDICES

the truth is that the act of settlement of the people of Israel im

the Land of Israel is itself the most substantial, effective and
authentic security act. But as emerges from the previous para-
graph, settlement itself does not arise out of reasons of security
and physical needs, but by virtue of destiny and the return of
Israel to its Land.

The settlers, it is very true, do not deny the security consideration.

but in their opinion it is entirely secondary and incidental. As to that
they state in their affidavit:

Accordingly, with all due deference to the security point and

although its correctness is not doubted by us, it is immaterial.

These are trenchant remarks and it goes without saying that the
settlers deserve praise for their candour which did not allow them te
mask their true motives. But I am left with a nagging question: These
settlers one and all protest that they have come to settle in Elon Moreh
not out of security considerations and that their contribution to
ity—for all its benefit—is only incidental. Can it yet be said of them.

as I put it in Beit-El, that they are present at the place by permission

and by virtue of the Army? Although “a person may be benefitted in
his absence”, can a right or permission which the beneficiary
rejects as loathsome be forced upon him? Let one thing be clear:
without dissociating myself as such from the observations of my learned
colleague, Landau J., I myself have no need to dispute with the settlers
their religious or national outlook. It is not our concern to enter inte
political or ideological debate. But it is our duty to inquire whether

pure considerations of security justify the requisition of the land for

the purpose of settling these settlers at the place, and it appears to me
that in this connection it is important to know what the attitude of the
settlers is. If they did not come principally for security purposes, it is
difficult for me to accept that this in fact is the purpose of their
settlement.
It remains for me to refer briefly to another argument of the
settlers. According to them, Judea and Samaria is not to be regarded

as “occupied territory” under IDF rule but as part of the State of

Israel. They rely first on the historic destiny of the Land of Israel. In
addition, from a legal aspect, they argue that when the territory was
captured in the Six Days‘ War, no other sovereign lawfully possessed
it. This argument is known from the writings of Professor Blum
 APPENDIX A: SELECTED JUDGMENTS 437

)1968(( 3 JS.L,R. ,279 )293 and Professor J. Stone also refers to

it affirmatively (see his No Peace—No War in the Middle East, pub-
lished in Australia in .)1969 Counsel for the settlers also mentioned
the fact that the Israeli legislator has never defined the borders of
the State and in section 1 of the Area of Jurisdiction and Powers
Ordinance, ,1948 provided only that law applying to the whole
of the State of Israel shall be deemed to apply to the whole of the

area including both the area of the State of Israel and any part of
Palestine which the Minister of Defence has defined by proclamation

as being held by the Israel Defence Forces”. He also mentioned the

1967 amendment of the Law and Administration Ordinance. (See in
this regard Professor A. Rubinstein, The Constitution Law of Israel
)1969( p. 46 (in Hebrew). The argument is twofold. If in effect we

are speaking of something that occurs within the borders of the State,
international law certainly does not apply thereto, but actually also

army legislation and the promulgation of Orders under such legis-

lation have no right to prevail in territory that is part of the State.
The State Attorney rightly replied that if the settlers entered the area
other than by virtue of the Requisition Order issued by the Com-
mander of the Region, their presence there hangs in a vacuum.
Requisition under Israeli law did not take place here. This answer
is well-founded. Furthermore, had serious doubt arisen here as to the
status of the area in question, we would be obliged to refer to the
Ministry of Foreign Affairs and ask for an official certificate defining
the status of the area. This question is not justiciable and thus the
Court will act according to the decision of the Government.
I have so far dealt with internal-municipal law. Since on the material
before us I am not satisfied that the requisition was justified under
municipal law, I do not in fact need to examine the legality of the
requisition from the aspect of international law. In case, however,

my abstaining from dealing with this aspect is complicated from a

legal point of view and requires explanation. As we have already said
in Beit-El, we distinguish between customary international law and
conventional international law. The former is a part of municipal
law and the latter is not, unless adopted by national legislation. The
Hague Rules are part of customary international law and therefore
there is occasion for this Court to examine the legality of the requisi-
tion in point of Article 52 of the Hague Convention, as my learned
colleague, the Deputy President, has done. Here also the test is mili-
 438 APPENDICES

tary necessity, and any one not convinced of the existence of such
necessity under municipal law will obviously not be convinced thereof
under the Hague Convention. The Geneva Convention is considered
to be part of conventional international law and therefore—according
to the accepted view in Common Law countries and also in this coun-
try—an aggrieved person cannot apply to a court of the State against
whose authorities he has grievances and claim his rights. The right
of action is confined solely to states which are parties to a Con-
vention such as this, and the hearing also cannot be conducted by

a court of the State but only in an international forum. I therefore

said in the Rafiah Approach case and repeated in Beit-El that every
expression of opinion by us regarding the legality of the civilian
settlement from the aspect of the Geneva Convention is only a non-
binding opinion and a judge would do well to refrain from that.
Nevertheless, this time as well the State Attorney invited us to
confirm to the authorities that also from the aspect of the Geneva
Convention there is nothing wrong in transferring land to settlers for
their settlement needs. In his submission, that does not contradict the
humanitarian provisions of the Convention which is acceptable also
to the State of Israel. It will be recalled that what is involved here
is Article )b(49 of the Geneva Convention which prohibits an oc
cupying power from deporting or transferring sections of its
population to the occupied territory. It is a mistake to think (as I
read recently in a newspaper) that the Geneva Convention does not
apply to Judea and Samaria. It applies, even though, as I said above,
it is not ”elbaifitsuj“ in this Court. Nor would I say that the -inamuh“
tarian” provisions of the Convention are intended solely to protect the
life, health, freedom or honour of a person and not property. Who
like us knows the value of possession? But the question whether
voluntary settlement falls under the prohibition of “transferring sec-
tions of the population” within the meaning of Article )b(49 of the
Geneva Convention is not an easy one and, as far as we know, no

answer has yet been found in international jurisprudence. I therefore

prefer now as well not to answer this question, especially since in
view of the conclusion I have reached in this case both under internal
Jaw and under customary international law (Hague Convention Article
,)52 it does not call for decision. But my refraining to do so is not to
be interpreted as agreement with the attitude of one or other of the
parties.
 APPENDIX A: SELECTED JUDGMENTS 439

For these reasons, in addition to those elucidated by my learned

colleague, the Deputy President, I am of the opinion that the Order
should be made absolute.

Bekhor J.

I concur in the comprehensive judgment of my esteemed colleague,

Landau D.P., which contains a balanced and convincing answer to

some of the hesitations I have had in this matter.

Both the Military Commander and the Government acted in this
matter by virtue of the powers granted by international law to an
Army which as a result of wartime activity holds territory which ‘s
not a part of the territory of the state to which the law of the state
applies (municipal law). As my learned colleague has shown, we
must judge this matter according to the applicable law under which
both the Military Commander and the Government operate. It is
not within our power to deal with questions of policy or questions
having their source in religious belief or national and historical outlook
and this is also a limitation from which we are neither authorized nor
able to trespass, whatever our personal view and philosophy. The

very text of the Order issued by the Military Commander is founded

on the powers that international law vests in an army holding territory
which is not—from a legal point of view—a part of the territory of
the state. Accordingly, decision must be made on this basis.
In the judgment of my learned colleague, Witkon J., the question
of the dispute between the C-G-S and the Minister of Defence is dealt
with at length. In my opinion the answer to this question is also to
be found in the judgment of Landau D.P. We must in this matter
distinguish between discussing the decision of the Military Com-
mander in the framework of his authority under international law
and the authority of the Minister of Defence and the Government in
the framework of municipal law. When the discussion turns on inter-
national law, the criterion is whether the Military Commander acted
for military reasons and in order to ensure a military purpose; this
is a matter for the Military Commander and it is not important at
the ministerial level to know that the authority under international
law is vested in the Military Commander alone and not in the Minister
of Defence or the Government; and if the Military Commander acted
within the limits of his authority, no fault is to be found with his
 440 APPENDICES

exercise of this authority, even if the ministerial level, in this case

the Minister of Defence, holds another view. The position differs when
the wider question is raised in the sphere of municipal law; here the
view of the Military Commander is the major premise but not the
end of the matter. In this sphere, as my colleague has stated, the C-G-S
“is subject to the authority of the Government and subordinate to
the Minister of Defence.” It is true that the Minister of Defence has

a different opinion on this matter from that of the C-G-S, but at the
political level too the view of the Minister of Defence is not final,
and as emerged from the observation of the Deputy President, the
final word lies with the Government.
Had it been concluded that the Military Commander acted here
to ensure military needs, and that it was he who initiated the action
in order to ensure these needs which formed the dominant element in
his decision in view of all the circumstances and the timing, as described
in detail in the Deputy President’s judgment, I would find no difficulty
in approving his action, even though there are other opposing views
and in spite of the fact that the Minister of Defence also differs in
opinion. However, as the Deputy President demonstrated in his judg-
ment, the action of the Military Commander in this instance exceeded
his authority under international law.
The Deputy President also dealt with the question arising from the
contradiction between requisitioning Jand for military needs, which
is a temporary requisition, and establishing a civilian settlement as

a permanent settlement. It is well known that civilian settlement has

always constituted an inseparable part of the regional defence system.
In the more general framework of the whole defence system of the
Yishuv, words to this effect appear also in Beit-El and in Matityahu.
A distinction must, however, be drawn: the integration of civiliaa
settlements into regional defence began many years before Israel
achieved statehood, and continued after statehood was attained within
the State’s territory. During all these years the basis was always that
the civilian settlements are permanent, and there was nothing wrong
in this even from a legal point of view, since the post-statehood
settlements were established in areas within the boundaries of the
State, where the law of the State applied. In the pre-State period as
well, the intent was always to establish permanent settlements on land
owned by the settling bodies. Here we are dealing with temporary
requisition, and hence the contradiction between it and the creation
 APPENDIX A: SELECTED JUDGMENTS 1

of permanent settlements. This question has come into sharp focus

for the first time in this petition, perhaps mainly as a result of the
joinder of respondents 5 and 6 and the clear position they have
adopted.
As I have said, I concur with the judgment of Landau D.P.

Order nisi made absolute.

Judgment given 22 October .1979
 442 APPENDICES

APPENDIX B: STATISTICAL TABLES *

.1 INHABITANTS
(in thousands)

Judea and Samaria Gaza and North Total

1968 1978 1980 1968 8 1980 1968 1978 1980

Inhabitants 5855 6812 7036 3578 4315 965

Births 256 304 314 15 20 1 0 4 528

Natural
increase2 140 210 208 84 152 146 205 346 358

Based on data of Central Bureau of Statistics, Admin. Territ. Statistics Quarterly

+

Vol X, ,3 1980 and on Ministry of Defence. Coordinator of Government Operations

‫חו‬ 74 ,.5 ,0028 Sinai and Golan Heights, A Thirteen Year Survey )19671980(
Ist January, .1981
1 Excluding Bedouins.
2 Estimate based on registered live-births and on estimated figures of deaths.

.2 BIRTHS AND INFANT MORTALITY

A. BIRTHS

(Total numbers)

Judea & Samaria Gaza & N. Sinai

1968 1978 1979 8 1978 1979

Hospital births 3463 12435 13938 2026 5232 13472

Home births 22187 18949 17562 13477 16357 9128

Total 25640 31384 31500 15503 21589 22600

‫מ‬. INFANT MorTALITY

(per 1000 live births)
Fadea and Samaria Gaza

1968 | %196 1980

‫ה‬ 0
 APPENDIX B: STATISTICAL TABLES 3

.3 ENTRIES FROM ABROAD

A. numbers

1971 1978 1980

137220 109622
| Visitors 91474
Inhabitants 81581 316775 341862

B. Countries of origin

Visitors & Tourists passing Jordan Bridges: June 1975—March 9

Country Entries Country Entries

Abu-Dhabi 7313 Lebanon

Aden 11 Lybia

Afghanistan ] Mauritania

Albania 47 Morocco

Algeria 2750 Oman

| Baharein 239 Pakistan

Dubay 243 Qatar

Egypt 6045 Ras-el-Hama

India 8 Saudi Arabia

Indonesia 2 Sudan

Iran 65 Syria

Iraq 1186 Tunisia

Jordan 372414 Turkey

Kuwait 93480 Yemen 155

Total Moslem Countries 564568

Total other Countries 6460

571028
 444 APPENDICES

.4 ISRAELI AND LOCAL PERSONNEL IN HEALTH, WELFARE AND EDUCATION SERVICES

A. PERSONNEL-EXCLUDING Israeli Local

POLICEMEN AND WARDENS
31568 311280 31568 311280

)1 Judaea and Samaria - total 380 353 2930 11160

in health services 9 15 800 1403
in welfare services 10 9 104 165
in education services 14 3 8316

)2 Gaza District and Northern Sinai - total 127 144 1968 5035
in health services 5 5 620 1395
in welfare services 6 ‫ד‬ 6 0
in education services 5 5 1340 2470

)3 The three regions - total 507 497 4898 16195

in health services 14 40 1420 2798
in welfare services 16 16 150 245
in education services 19 17 2253 10786

Ga Tee eee

‫ה‬
B. POLICEMEN AND WARDENS 1973 1980 1973 1980

)1 Judaea and Samaria - total 490 610 320 377

Policemen 240 214 320 377
Wardens 250 396 - =

)2 Gaza District and North: Sinai - total 275 293 400 374
Policemen 155 163 400 374
Wardens 120 130 -

)3 The three regions - total 765 903 720 751

Policemen 395 377 720 751
Wardens 370 526 - >
 APPENDIX B: STATISTICAL TABLES 445

21295
-6768
39
10
--
-
Southern
2- Sinai
145519
76463
64632
3413
4424
1659
1630
7980
124
104
136
20
39 258902
199437
23378
36087
1043
7601
1034
7980
5761
806
156
790
97
142216
107332
11459
23425
4402
1188
3287
6768 territories
Samaria
422
162
693
142
884
Judaea
and
409182
112550
268830
11187
27802
1366
2664
7593
7980
930
195
233
938 the
All EDUCATION
SCHOOLS
CLASSES
AND
—
.5
7980
790
22
26
~=
a--
- 6768 3971
7980
147
22
—
--
‫ית‬
=
80050
27527
52523
1103
6768
Heights
Golan
The 125
643
19
74
6
=
Northern
district
Gaza
Sinai
and 223561
136154
11459
75948
6187
1397
3969
1796
6768
422
162
267
968

Classes
Classes
Pupils
Instit.
Instit.
Government
Institutions
UNRWA
Private
Total
 446
APPENDICES

Teachers 136154
268830
223561
100
409182
50
100
Pupils:
100
83
100
1295
206
215
Heights
3971
22
Golan
57
180
22
Northern
80050
145519
104
2147
District
82
37
4384
Sinai
Gaza
33
and
142216
258902
Samaria
5316
223561
Territories
82
68
Judaea
26
8927
29
7520
13491
and
83
80
30
30
the
All 114258
1555$
121
179130
92110
38
43
95
41
Girls
44
84599
154572
131451
230052
83
62
57
75
Boys
59
56 EDUCATION
TEACHERS
Pupits
AND
—.6
Southern
including
Sinai.
Not
1

Rate
Total
Rate
Total
of
Rate
Total
Rate
Total
of
6768
7980
6768
7980
Institutions
types
All
of
increase
increase
%%%
%
Teachers
Teachers
Teachers
Pupils
Pupils
Pupils
per
per
(it

Increase
Rate
6768
7980
of

%%
teacher
teacher
%
Pupils
Pupils

ee

Rate
 APPENDIX B: STATISTICAL TABLES
447

Al-Najah
-- 101
Al-Sharia
10
-<
>= 82
18
13
16
1
--
5
2- 60
Freres
14
51
--
5
1
8
3125 7 countries
Bir-Zeit
49
35
30
6-2
3
9 400800
Dist.
ordan
sities
ppe Al-Sharia
945
473
413
99
—
20
13
7-Freres
920
811
549
236
13
10
87
1
establishment
Government.
Universitios
founded
Military
before
Israeli
There
.1967
none
were
after
the
the
of
All
Bir-Zeit
1661
1386
976
16
308
22
5>
5 Universities
SAMARIA
STUDIES
HIGHER
JUDEA
AND
IN
.7
Al-Najah
2650
1982
1877
33
—
22
81
2 District
ae.
Total
Israel
1
Total
311
228
81
56
40
31
10
2
7
3
5 Tota]
under
Gaza
Total
From
ion
o
—
orr4 6176
4652
3815
Total
579
32
190
13
52
3
6-.... Applicat-
From.:
Lecturers
197980
17280
Up
to
in
B.
- Judaea
Other
Gaza
East
and
:4
Students
A.
1

Foreigners
working
licence)
(Having
obtain
Local
to

198081
197980
Origin
Place
of

Rate
of
 448 APPENDICES

.8 VOCATIONAL TRAINING GRADUATES )19681980(

Judea Gaza
Courses & Samaria District Sinai Total

Industry 3994 3535 -- 7529

Building 3202 5848 884 9934
Sewing & embroidery 4268 1922 - 6190
Others and transportation 1051 3352 652 5055
Special courses for youth 3290 -- -- 3290
Perfection courses 3502 2036 5538

Total 19307 16693 1536 37536

.9 HoUSE UTENSILS

(Percentage of households)

CG
Judaea and Samaria Gaza

Gas or Electric Range 1967 50 30

for cooking 1978 656 562
1979 728 680

Electric Refrigerators 1967 50 30

1978 358 407
1979 413 56014

Washing Machines 1968 50 30

1978 175 87
1979 198 191

Television Sets 1968 20 30

1978 411 463
1979 467 6101

1 Towns only.
 APPENDIX B: STATISTICAL TABLES 449

.10 Moror VEHICLES

(Total numbers).

Judaea and Samaria Gaza Strip

Total
Rate of
1968 1978 1979 1968 1978 1979 increase
196879

Private cars 1626 7448 9648 319 4936 6116 512

Commercial

Vehicles and
Trucks 1299 6261 7092 818 3576 3741 409

Tractors 459 1673 1898 -- 2 5 418

.11 Activiry oF LocaL Courts JUDEA AND SAMARIA

Court matters dealt with in Judea and Samaria, by type of court

Magistrates’ Courts District Courts Supreme Court

Criminal Civil Criminal Civil =

1973 28208 4597 537 2397 1031 629 37399

1974 19321 4735 504 1874 794 472 27700

1975 18552 4551 573 973 1101 491 26241

1976 19651 3844 574 915 828 370 26182

1977 18882 3693 514 1015 1056 516 25676

1978 20506 3169 626 1000 1035 477 26813

1979 23469 2773 722 1226 1024 591 29805

1980 24017 2437 534 1245 1307 566 30107

 450 APPENDICES

APPENDIX C: SELECTED PROCLAMATIONS

AND ORDERS

The Proclamations and Orders included in this Appendix ( except

the Ramat Hagolan Courts Orders) were published in identical terms
in all Regions of Military Government, even though the texts published
here refer to Judea and Samaria.

.1 PROCLAMATION ON LAW AND

ADMINISTRATION

PROCLAMATION No, *2
For the purpose of maintaining proper administration, security, and
public order, I [Commander of Israel Defense Forces in the Region]
hereby proclaim as follows:

INTERPRETATION

.1 ”noigeR“ means the Region of Judea and Samaria.

VALIDITY OF EXISTING LAW

.2 The law in existence in the Region on June ,7 ,1967 shall remain

in force, insofar as it does not in any Way conflict with the
Provisions of this Proclamation or any Proclamation or Order
which may be issued by me, and subject to modifications resulting
from the establishment of government by the Israel Defense
Forces in the Region.

ASSUMPTION OF POWERS

.3 )a( Any power of government, legislation, appointment, or ad

ministration with respect to the Region or its inhabitants

* Published June ,7 ;1967 Coll. P. & O. .J( & S.), p. .3

 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 451

shall henceforth be vested in me alone and shall be exercised

only by me or by a person appointed by me to that end

or acting on my behalf.
)b( Without detracting from the generality of the aforesaid, it
is hereby provided that any duty of consultation, obtaining
approval, or the like laid down in any law as a prerequisite
to any legislation or appointment or as condition to the
validity of any legislation or appointment, is hereby declared
invalid.

PROVISIONS REGARDING PROPERTY

.4 Any movable or immovable property, including monies, bank

accounts, arms, ammunition, vehicles and other transport equip-
ment, and any other military or civilian equipment which was
the property of, or registered in the name of the Hashemite
Kingdom or Government of Jordan or any of its units or branches

or any part thereof, which is in the Region, shall pass into my

exclusive possession and shall be subject to my administration.

TAXES

.5 Taxes, levies, fees, and payments of whatever kind which were

payable to central government institutions and were not paid
by June ,6 ,1967 shall be paid to me.

PROMULGATION OF LEGISLATION

.6 Proclamation, Order, or Notice issued on my behalf shall be

promulgated in any manner I may deem fit.

OFFENCES

.7 Any person who breaches or attempts to breach public order

and security or any of the provisions of this Proclamation or
of any Order, Directive, or Notice which may be issued by me

or on my behalf, shall be punished with the full severity of the

law.
 452 APPENDICES

.2 PROTECTION OF HOLY PLACES ORDER

ORDER No. *327

By virtue of my authority as Commander of the Region, I hereby

order as follows:

DEFINITION

.1 In this Order: |
“the competent authority”’—whoever shall be appointed by me
to be the competent authority for the purposes of this Order.

PROTECTION OF HOLY PLACES

.2 The Holy Places shall be protected against desecration and any

other harm and against anything likely to interfere with the
free access of members of any religious faith to the places holy
to them, or to offend their feelings towards those places.

DUTIES OF THE COMPETENT AUTHORITY

.3 The duty of the competent authority is to ensure the safety of

the Holy Places as stated in section ,2 and the authority is entitled
to take any action required for this purpose, including:
)1( the determination of rules of conduct in Holy Places;
)2( the appointment of guards at the Holy Places.

OFFENCES AND PENALTIES

.4 )a( A person desecrating or otherwise violating a Holy Place is

liable to imprisonment for seven years.
)b( A person committing any act likely to interfere with the
free access of members of any religious faith to places holy
to them, or to offend their feelings towards those places, is
liable to five years’ imprisonment.
)c( A person who infringes the rules of conduct determined by
the competent authority, or fails to obey the lawful order
of a guard, is liable to two years’ imprisonment.

* Published June ,2 ;1969 Coll. P. & O. .J( & S.), p. .175 This Order was first
published as order No. 66 on 4 August .1967
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 453

.3 A document signed by the competent authority certifying that 4

particular place is a Holy Place shall constitute conclusive evidence

of the fact that such place is a Holy Place.

.3 COURTS ORDER (RAMAT HAGOLAN)

ORDER No. *273

Whereas no judges, lawyers or persons with knowledge of local law

or text books of local law remain in the Region and it is impossible

therefore to carry on legal proceedings and provide judicial protection
for the rights of inhabitants of the Region and to settle disputes be-
tween them
And whereas it is essential to try offenders and carry on criminal
proceedings in order to preserve public order
And Whereas I am of the opinion that the same is required for main-
taining orderly government and public order in the Region, I hereby
order as follows:

Chapter I

GENERAL PROVISIONS

DEFINITIONS

.1 In this Order

“the Court” means a court of first instance;

“the Court of Appeal” means a court of second instance which
hears appeals against judgments and other decisions of the Court;

“civil action” means every legal proceeding which is not a

minal proceeding, other than for
)i( matters assigned by security enactment to the jurisdiction of

a board or other authority set up by the Commander of the

Region and
)ii( matters of personal status assigned to the special jurisdiction
of religious authority.

* Published July ,13 ;1970 Coll. P. & O. (Ramat Hagolan).

 4 APPENDIX

APPOINTMENT OF JUDGES

.2 The judges and Presidents of the Court and the Court of Appeal
shall be appointed by the Commander of the Region.

QUALIFICATIONS OF JUDGES

.3 )a( Every person qualified under the law applying in Israel to

be appointed as a magistrate is qualified to be appointed

a judge of the Court.

)b( Every person qualified under the law applying in Israel to
be appointed as a judge of a District Court is qualified to
be appointed a judge of the Court of Appeal.

INDEPENDENCE

.4 In judicial matters a judge is subject solely to the authority of

the law.
.5 )a( The Court sitting with a single judge shall try civil actions
and offences for which the penalty does not exceed ten years’
imprisonment.
)b( The Court sitting with a bench of three judges shall try
offences for which the penalty is ten years’ imprisonment or

more; the President of the Court shall be the presiding judge.

COMPOSITION OF THE COURT OF APPEAL

.6 The Court of Appeal sitting with a bench of three judges shall

hear appeals; the President of the Court of Appeal shall be the
presiding judge.

SEAT AND AREA OF JURISDICTION

.7 )a( The seat of the Court shall be Ouneitra.

)b( The seat of the Court of Appeal shall be determined by its
President.
)c( The area of jurisdiction of the Court and the Court of Ap-
peal shall be the entire area of the Region.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 455

COURT SESSIONS

.8 Notwithstanding the provisions of section 7 the Court may sit to

try a particular matter wholly or in part at a place other than
its seat if it sees fit to do so in the interest of justice or efficient
trial.

APPEAL

.9 )a( A judgment of the Court is appealable to the Court of

Appeal.
)b( Any other decision of the Court in a civil matter is appeal-
able to the Court of Appeal if leave is obtained therefor in
the decision itself or from the President of the Court of Ap-
peal or some other judge of the Court of Appeal whom the
President has designated for that purpose or from the Court
of Appeal.

RETRIAL

.10 )a( The President of the Court of Appeal or his deputy may
direct that the Court of Appeal or the Court shall retry a
criminal matter which has been finally decided if it appears
to him that
)i( the Court has held that any of the evidence adduced in
the matter was based on falsehood or forgery and that there
is reason to believe that the absence of such evidence might
have altered the outcome of the trial in favour of the person
sentenced, or
)ii( new facts or new evidence have or has come to light
which are or is likely by themselves or itself or together with
the material that was originally before the Court to alter the
outcome of the trial in favour of the person sentenced and
which could not have been in the possession of or known to
the person sentenced at the time of the trial, or
)iii( another person has meanwhile been convicted of the
commission of the same criminal act and it appears from
the circumstances that have come to light at the trial of such
other person that the person originally convicted of the act
did not commit it.
 456 APPENDICES

)b( The person sentenced and the Attorney-General have the

right to request a retrial; where the person sentenced has
died, his spouse and any of his issue, parents, brothers or
sisters shall have the like right.
)c( In a retrial the Court of Appeal or the Court shall have the

powers vested in the Court in a trial upon information and

vested in the Court of Appeal in a criminal appeal except
the power to increase sentence; the Court may make any
order it thinks fit to compensate a person sentenced who
has undergone his sentence or part thereof and whose con-
viction has been quashed as a result of the retrial or grant

any other relief. Where the person sentenced has died, the
Court may make an order as aforesaid in favour of another

person.
)d( Procedure for the request and the times for submitting the

same and the procedure on a retrial shall be prescribed by

regulations.

DISAGREEMENT AMONG JUDGES

.11 Where the Court sitting with a bench of three judges is in dis-
agreement, the view of the majority shall be determinative. If
there is not a majority for any one view, the view of the presiding
judge shall be determinative, and in a criminal case the view
most favourable to the defendant shall be determinative.

PUBLICITY OF TRIAL

.12 )a( The Court shall try cases in public.

)b( The Court may try the whole or part of a particular matter
in camera if it deems the same necessary to preserve secur-
ity, safeguard morality or protect the welfare of a minor.
)c( The Court may hear in camera applications for interim or-
ders, provisional orders and other interim decisions.
)d( Where the Court has decided to hold a hearing in camera tt

may permit classes of people to be present during all or part

of the hearing.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 457

OF MINORS FROM COURT

.13 The Court may forbid a minor from being in court during a
hearing and order his removal.

PROHIBITION OF PUBICATION

.14 )a( A person shall not publish anything concerning a hearing

held in camera save with permission of the Court.
)b( A person shall not take any photograph in court or publish
such photograph save with permission of the Court.
)c( A person shall not without permission of the Court publish
the name, picture, address or other particulars likely to lead
to the identification of a minor under the age of 16 years
who is a defendant or witness in a criminal case or a com-
plainant or injured party in a trial for an offence under
Chapter 17 of the Criminal Code Ordinance, .1936
)d( The Court may forbid any publication regarding its hearings
in so far as it deems the same necessary to protect the secur-
ity of a litigant, witness or other person whose name has
been mentioned at the hearing.
)e( A person contravening any of the provisions of this section
is liable to six months’ imprisonment or a fine of IL.1,000.

SPECIAL PUBLICATIONS

.15 )a( A person shall not publish anything about a matter pending
in court if such publication may influence the course or out-

come of the trial, but this prohibition shall not apply to the
bona fide publication of information of anything that was
said or occurred at a public session of the Court.
)b( A person contravening the provisions of this section is liable
to one year’s imprisonment or a fine of IL.2,000.

PROHIBITION OF DISTURBANCE IN COURT

.16 )a( Where a person disturbs the proceedings of the Court within
its sight or in its vicinity, the Court may order his removal

or compel him by imprisonment or fine to conduct himself

properly.
458 APPENDICES

)b( The provisions of this section shall add to the powers of the
Court under any other law, but a person shall not be punished
for conduct for which imprisonment or a fine has been
imposed on him under this section.
)c( Written notice of an order for imprisonment or a fine under
subsection )a( shall forthwith be given to the President of
the Court of Appeal who may annul or mitigate the order.

FINALITY OF DECISIONS

.17 Without derogating from the provisions of section )c(16 the

decisions of a court under sections ,12 13 and 16 shall be final.

APPLICATION TO THE COURT OF APPEAL

.18 For the purposes of sections 16 and ,17 “the Court” also means
the Court of Appeal.

REPRESENTATION

.19 Any person who is a member of the Chamber of Advocates of

Israel and has received a power of attorney in this behalf may

appear in proceedings before the Court and the Court of Appeal.

APPOINTMENT TO OFFICE OR POST

.20 A person who has been appointed under the law of Israel as the
holder of an office or post, with powers under such law, is
deemed to have been appointed in the Region to exercise the

same powers for the purpose of this Order or of any Israeli

enactment made applicable to the Region by virtue of this Order.

Chapter II

CIVIL PROCEEDINGS

MATERIAL JURISDICTION

.21 )a( The Court is competent to try a civil action whatever the
ammount of the claim or the value of the subject matter.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 459

)b( The Court of Appeal is competent to hear an appeal against

a judgment or other decision given by the Court in a civil

action.

APPLICABLE LAW

.22 )a( The Court shall try a civil action in accordance with the
substantive law, procedure and law of evidence formulated
in security enactments. Where security enactment lacks any
provision on the question involved or refers to the law, the
matter shall be dealt with in accordance with the law ap-
plying in Israel.
)b( The provisions of this section shall also apply to the Court
of Appeal.

VESTING OF POWERS

.23 )a( Every power with regard to a civil action or civil matter
vested by the law applying in Israel in a District Court sit-
ting as a court of first instance, a Magistrate’s Court and a
Registrar shall vest mutatis mutandis in the Court.
)b( Every power of a District Court in Israel and of the Supreme
Court of Israel sitting as a court of civil appeal shall vest
in the Court of Appeal.
)c( The Court and the Court of Appeal shall exercise the powers
vested in them under subsection )a( and )b( if there is no
other provision in security enactment.
)d( Every power vested in Presidents of courts in Israel and

a Chief Magistrate in civil proceedings shall vest. as the

case may be, in the President of the Court and of the Court
of Appeal.

TIME FOR ENTERING APPEAL

.24 )a( The time for entering an appeal as of right against a deci-
sion of the Court is 30 days from the day of the decision,
if given in the presence of the appellant, or from the day
460 APPENDICES

the decision was served on him, if given in his absence,

unless some other enactment prescribes a time for entering

an appeal.
)b( The time for entering an appeal by leave against a decision,
when leave to appeal is set out in the decision itself, is 15
days from the day of the decision, if given in the presence
of the appellant, or 15 days from the day the decision was
served on him, if given in his absence.
)c( The time for entering an appeal, when leave to appeal is
not set out in the decision itself, is 15 days from the day
when leave to appeal was granted, if granted in the presence
of the appellant, or 15 days from the day the decision
granting leave to appeal was served on him, if granted in
his absence.

PROCEDURE ON APPEAL

.25 )a( The Court of Appeal may take evidence, including evidence
that was before the Court, and require that the evidence
be given by affidavit or in some other manner as it may
prescribe.
)b( The judgment of the Court of Appeal is final.

EXECUTION OF JUDGMENTS

.26 )a( There shall be an Execution Office at the Court with a Chief
Execution Officer and an Execution Officer.
)b( The powers of Chief Execution Officer are vested in every
judge of the Court.
)c( The President of the Court of Appeal may appoint Execu-
tion Officers.
)d( In the absence of other provisions in security enactment the
law relating to execution applying in Israel shall apply
mutatis mutandis in respect of everything relating to the
execution of judgments and decisions given by courts under
this Order.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 461

Chapter III

CRIMINAL PROCEEDINGS

RIPTION OF OFFENCES

Any act or omission which is an offence in Israel under any

enactment specified in Schedule A is also an offence in the Region
and a person who commits an offence as aforesaid is liable to
the penalty prescribed therefor in such enactment.

“POWER OF THE COURT TO TRY CRIMINAL OFFENCES

The Court is competent to try a person for an offence under

section .27

POWER OF THE COURT TO TRY OFFENCES UNDER

SECURITY ENACTMENTS

.29 The Court is competent to try a person for an offence under

security enactments as prescribed in Schedule B.

POWERS OF COURT OF APPEAL

.30 The Court of Appeal is competent to hear an appeal against a

judgment given by the Court as aforesaid under sections 27 and
.28 The provisions of section )a(24 and )b( shall apply to the
Court of Appeal when hearing criminal appeals.

RULES RELATING TO CRIMINAL RESPONSIBILITY AND

PRINCIPLES OF CRIMINAL LAW

.31 When hearing cases under this Order the Court and the Court
of Appeal shall apply the rules relating to criminal responsibility
and the principles of criminal law which apply in Israel.

PROCEDURE

.32 Criminal procedure in force in Israel shall apply mutan-

dis to the Court and the Court of Appeal.

EVIDENCE

.33 The law of evidence binding in criminal matters on the courts of

Israel shall be binding on the Court and the Court of Appeal.
 02 APPENDICES

MODES OF PUNISHMENT

.34 )a( The modgs of punishment shall be in accordance with the

law applying in Israel.
)b( The Court and the Court of Appeal shall have all the

powers relating to placing a defendant on probation which

are vested in the courts of Israel.

TREATMENT OF MENTALLY SICK

.35 The treatment of the mentally sick with regard to interrogation,

detention and trial shall be in accordance with the law applying
in Israel.

JURISDICTION OVER JUVENILE OFFENDERS

.36 The courts under this Order shall also be Juvenile Courts and
in trying a minor within the meaning of the law applying in
Israel shall act in accordance with the provisions applying in
Israel in this regard.

VESTING OF POWERS

.37 )a( Every power relating to a criminal matter vested in a Dis-

trict Court sitting as a Court of first instance and in a Magis-
trate’s Court by the law applying in Israel shall vest mutatis
mutandis in the Court.
)b( Every power of a District Court and the Supreme Court
trate’s Court by the law applying in Israel shall vest mutatis
mutandis in the Court of Appeal.
)c( The Court and the Court of Appeal shall exercise the powers
vested in them under subsections )a( and )b( if there are

no other provisions in security enactment.

PLACE OF DETENTION AND IMPRISONMENT

.38 A person who is detained or imprisoned in proceedings under

this Order shall be held at a place which the Commander of the
Region shall prescribe as a place of detention or imprisonment
for the purpose of the Security Provisions Order, .1970
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 463

“POWER OF PARDON AND MITIGATION OF SENTENCE

The Commander of the Region may pardon offenders tried under

this Order and mitigate their sentence.

Chapter IV

MISCELLANEOUS PROVISIONS

PUBLICATIONS OF LAWS

.40 The Arabic version of the Laws referred to in Chapter III shall
be open to public inspection at the mukhtars of villages.

RESERVATION OF POWERS

.41 Nothing contained in this Order shall derogate from the powers
of the military courts established under the Security Provisions
Order, .1970

REPEAL

.42 The Order concerning the Establishment of Courts (Temporary

Provisions) (Ramat HaGolan) .oN( ,)185 ,1969 is hereby re-
pealed.

SCHEDULE A

The Laws and Orders specified below as in effect in Israel.

.1 The Criminal Code Ordinance, .1936
.2 The Dangerous Druge Ordinance, .1936
.3 The Penal Law Revision )yrebirB( Law, .1952
.4 The Penal Law Revision (Assault on Police Officers) Law, .1952
.5 The Penal Law Amendment (Concealment of Offences) Law,
.1959
.6 The Penal Law Amendment (Prostitution Offences) Law, .1962
.7 The Penal Law Amendment ,tieceD( Blackmail and Extortion)
Law, .1963
.8 The Penal Law Amendment (Prohibited Games, Lottery and
Betting) Law, .1964
.9 The Penal Law Amendment (Use of Vehicles without Permis-
sion) Law, .1964
 464 APPENDICES

.10 The Prohibition of Defamation Law, .1965

.11 The Criminal Procedure Law, .1965
12 The Evidence Ordinance (New Version), .1971
.13 The Penal Law Amendment (Modes of Punishment) Law, .1970
.14 The Treatment of the Mentally Sick Law, .1955
15 The Youth (Care and Supervision) Law, .1960
.16 The Probation Ordinance (New Version), .1969
Note — The term “public servant” shall be interpreted in accordance
with the Penal Law Amendment (Public Servants) Law, .1957

SCHEDULE B

- . The Nature Protection Order (Ramat HaGolan) .oN( ,)267 .1972

The Motor Vehicle Insurance (Third Party Risks) Order (Ramat
HaGolan) .oN( ,)76 .1967
The Local Pensions Law .oN( )85 Order (Ramat HaGolan),
.1968
The Registration and Inspection of Equipment Order (Ramat
HaGolan) .oN( ,)93 .1968
The Animal Diseases (Marking of Cattle and Sheep) Order
(Ramat HaGolan) .oN( ,)117 .1968
The Operating of Banks Order (Ramat HaGolan), No. ,)123
.1968
The Cancellation and Suspension of Driving Licences Order
(Ramat HaGolan) .oN( ,)128 .1968
The Prohibition of Damage to Protect Nature Resources Order
(Ramat HaGolan) .oN( ,)132 .1968
The Income Tax Order (Ramat HaGolan) .oN( ,)158 .1968
The Business Licensing Order (Ramat HaGolan) .oN( ,)175
.1969
.11
The National Insurance Order (Ramat HaGolan) .oN( ,)209
.1970
.12 The Excise on Stock Order (Ramat HaGolan) .oN( ,)211 .1970
.13 The Regulation of Settlement Guard Order (Ramat HaGolan)
.oN( ,)233 .1970
.14 The Traffic Order (Ramat HaGolan) .oN( ,)230 .1970
.15 The Saving Loan Order (Ramat HaGolan) .oN( ,)245 .1971
.16 The Firefighting Services Order (Ramat HaGolan) .oN( ,)234
.1970
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 465

.4 ABANDONED PROPERTY OF PRIVATE

INDIVIDUALS ORDER

ORDER No. *58

Considering it necessary in the interests of proper administration and

and public order I [Commander of Israel Defence Forces in the Re-
gion] hereby order as follows:

DEFINITIONS

.1 In this Order:
)a( “Abandoned Property” means property the legal owner or
occupier of which left the Region on or before the appointed
date or subsequently thereto, leaving such property within
the Region, provided that property the occupier of which is
not the owner shall not be considered as Abandoned Prop-
erty unless both the owner and the occupier are absent from
the Region;
| (b “immovable property” means land of every category and of

every form of tenure, and any building, tree, or other thing

attached to land and every part of any sea, coast, or river
and any benefit or encumbrance of any benefit in or above
land or water, including mines;
)c( “appointed date” means June ,7 ;1967
)d( ”noitaroproc“ means a company, incorporated body, or as-
sociation whether or not incorporated;
)e( “financial year” means the year commencing on April Ist of

a particular year and terminating on March of the

subsequent year;
)f( ”ytreporp“ includes immovable property and movables, money,
securities, a vested or contingent right in any property, good-
will, and any right in any association or in the management
thereof, being private property;
)g( ”selbavom“ means every kind of property except immovable
property;
)h( “private property” means any property not in the ownership

* Published July ,23 ;1967 Coll. P. & O. .J( & S.), p. .158
 ‫ו‬

66 APPENDICES

of the State which had sovereignty over the Region before

the appointed date;

APPOINTMENT OF OFFICER-IN-CHARGE

.2 The Regional Commander shall appoint an officer-in-charge 05 |

Abandoned Property.

POWERS

.3 )a( The officer-in-charge shall be a legal personality and may

enter into contracts, hold property, manage property or let
it, and acquire or sell movables.

VESTING OF ABANDONED PROPERTY IN OFFICER-IN-

CHARGE

.4 )a( All Abandoned Property is vested in the officer-in-charge

from the date it became Abandoned Property, and the officer-
in-charge is authorized to take possession thereof and adopt

any measure he considers necessary therefor.

)b( Any right that an owner or occupier had in any Abandoned
Property passes automatically to the Officer-in-charge at the
time of the vesting thereof, and the officer-in-charge 15 88-
rogated to the owner of the Abandoned Property.
)c( The fact that the identity of the owner or occupier of any

property is not known shall not prevent the property from

becoming Abandoned Property.

DELIVERY OF ABANDONED PROPERTY

.5 Any person having Abandoned Property under his control is
bound to deliver it to the officer-in-charge.

ABANDONED PROPERTY OF A CORPORATION

.6 Property owned or occupied by a corporation shall be regarded

as abandoned and section 4 shall apply thereto if all the partners,

directors, or managers, as the case may be, of the corporation,
have left the Region.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 467

INCOME FROM ABANDONED PROPERTY

.7 Income from Abandoned Property shall be treated as the Aban-

doned Property producing such income.

SAFEGUARDING OF ABANDONED PROPERTY

.8 )a( The officer-in-charge shall safeguard the Abandoned Prop-
erty, by himself or by means of others authorized by him in
writing, with a view to preserving it or the full amount of
the proceeds thereof, as far as possible, on behalf of its

owner or occupier as the case may be.

)b( The officer-in-charge may, by himself or by means of others
authorized by him in writing, discharge all and
make all investments required for preserving Abandoned
Property, including expenses of the occupation, storage. trans-
port, repairs, and development of the property, or of any
like purposes.

SALE OF ABANDONED PROPERTY

.9 )a( The officer-in-charge may sell Abandoned Property consisting

of movables, or the yield of Abandoned Property. if in the
circumstances he considers that this is the only way properly
to ensure that the owner or any person lawfully occupying
the property can receive a return for the value of his right
in the property.
)b( The proceeds of sale shall be deposited by the officer-in-
charge in a safe investment in such manner as to enable him
to comply with the provisions of section 13 -)d(

KEEPING OF RECORDS

.11 )a( The officer-in-charge shall keep full records of all Abandoned
Property transferred into his control.
)b( The records shall include:
)1( the name of the owner of the property, if known;
)2( the date of receiving control of the property, and the
state thereof at that time;
)3( the steps taken to preserve the property;
)4( in respect of movables, the place where received or found
and where stored;
468 APPENDICES

)5( where movables are sold, the amount of the proceeds

and where deposited;
)6( all income and expenditure connected with the Aban-
doned Property.

ANNUAL REPORT

.12 The officer-in-charge shall submit a report of his activities to the

Commander of the Region once each year and not later than
six months after the end of the financial year. Nothing herein
shall derogate from the power to require further reports.

RESTORATION TO OWNER OR OCCUPIER

.13 )a( Where a person who was the owner or lawful occupier of
Abandoned Property returns to the Region and proves his
ownership of the property or, as the case may be, his right
to occupy the same, the officer-in-charge shall transfer to
him the property or the value thereof, whereupon that prop-
erty shall cease to be Abandoned Property and any right
which any person had in that property immediately prior to
its vesting in the officer-in-charge shall be restored to such

person or to any person taking his place, but subject to

any rights acquired over the property by another party as
a result of any act of the officer-in-charge and subject to
the provisions of section .10
)b( On restoration of Abandoned Property to its owner or lawful
occupier in accordance with subsection ,)a( the officer-in-
charge may levy from him all direct expenses incurred by
him in respect of the property until its restoration.
)c( Where any income was derived from any Abandoned Prop-
perty during the period that it was vested in the officer-in-
charge, the officer-in-charge may, on restoration thereof, also
levy, in addition to the sums referred to in subsection ,)b(

a management charge at the rate of 20 per cent of the

gross income derived from such property.

PENALTIES

.14 )a( Any person converting any Abandoned Property to his own

use or failing to hand it over to the officer-in-charge, shall

 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 469

be liable to five years’ imprisonment or to a fine of IL

1000000 or to both such penalties.
)b( Any person interfering with the activities of the officer-in-
charge shall be liable to two months’ imprisonment or to a
fine of IL 500000 or both such penalties.
)c( Nothing in this section shall prevent any person being charged

or convicted of any other offense if his act constitutes an

offense under any Proclamation or any other Order of the
Commander of the Region, provided that criminal responsi-
bility shall not be incurred twice in respect of the same
act or omission.

.5 OBJECTIONS COMMITTEES ORDER

ORDER No. *172

By virtue of my authority as Commander of the Israel Defence

Forces in the Region, I hereby order:

ESTABLISHMENT OF OBJECTIONS COMMITTEE

.1 One or more objections committees shall be established in the

Region, with authority to consider objections to decisions rendered

pursuant to any of the Orders specified in the Schedule hereto,

or any other matter which the Commander of the Region may by
order authorize it to consider.

APPOINTMENT OF OBJECTIONS COMMITTEES MEMBERS

.2 The Commander of the Israel Defense Forces in the Region shall

appoint:
)1( a number of persons, among them persons with legal training,
to be members of objections committees;
)2( one of the aforesaid in subsection )1( to be Director of
Objections Committees (hereinafter “the Director”).

POWERS OF THE DIRECTOR

.3 )a( )1( The Director shall provide for three-man panels, each

* Published November ,22 ;1967 Coll. P. & O. .J( & S.), p. .350
470 APPENDICES

to be an objections committee for purposes of this

from among the members of the objections committees.
)2( One of the members appointed to a particular panel
shall be designated chairman.
)3( Every panel shall include at least one member with legal
training.

EXTENT OF JURISDICTION

4 The Jurisdiction of an objections committee shall extend to the

entire Region, and each objections committee shall be entitled te
consider every subject within its authority by virtue of this Order
but the Director may by written directive limit the authority of

a particular objections committee to a specific part of the Region,

to a specific type of matter, to a defined period, or otherwise.

POWERS OF THE COMMITTEE

.6 Upon conclusion of its deliberations, an objections committee

may recommend to the Commander of the Israel Defense Forces
in the Region to set aside the act objected to, to amend it, or to
render any other decision which the authority whose act was ob
jected to was authorized to render. Where the committee makes

no recommendation as aforesaid, or where the Commander of the

Region does not accept the recommendation or any part thereof,
the act objected to shall remain in full force and effect.

INDEPENDENT STATUS

7 In their work as members of an objections committee, committee

members are under no authority save that of the law or oF
security enactments, nor are they subject to the authority of the
Commander.

RULES OF PROCEDURE

.8 )a( An objections committee shall not be bound by the laws

of evidence or rules of procedure, other than those prescribed
by this Order, and shall prescribe its own rules of procedure.
subject to subsection )b( and provided that every objector
is secured the right to appear before the objections committee,
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 471

in order to present his evidence and submissions, or to be

15
represented before it by an advocate toward the same end.
Dane] )c( An objections committee shall have all requisite authority
concerning the summoning of witnesses and their swearing,
legal
the compelling of attendance, and presentation of documents,

as conferred upon a military court. Any person failing to

carry out directions of an objections committee pursuant tc
this subsection commits an offense under this Order.
the )h( An objections committee must give reasons for its recom-
mendations, other than interlocutory decisions.
)i( The recommendations of an objections committee may be
unanimous or by majority.
)j( Recommendations of an objections committee shall be passed

on to the Commander of the Israel Defense Forces in the

Region.

SUBMISSION OF OBJECTION DOES NOT PREVENT IMPLE-

MENTATION OF ACT

.9 )a( Submission of an objection shall not prevent implementation

of an act done by virtue of an order, unless the Director,
before prescribing the panel to hear the objection, or the
chairman of the committee, after the panel is set up, so
orders.
)b( The Director or chairman of the committee, as the case may
be, may prescribe conditions for staying implementation of
the act.

SCHEDULE

.1 Abandoned Property of Private Property Order.

.2 Government Property Order.
.3 Classification and valuation of goods for purposes of the Customs
Rates Order.
.4 Classification and evaluation of merchandise for purposes of any
order of excise on locally produced merchandise issued by virtue
of or pursuant to the Appointments under the Customs and
Excise Laws Order.
 472 APPENDICES

.5 Any decision of the appointed official for the purposes of the

Customs Authorities Order, section 2 )1( of that Order.
.6 Classification of goods for purposes of the Closed Territories
Order (Ban on Transfer of Goods).
.7 Powers of a court within the meaning of the Land Law Order
(Acquisition for Public Purposes), wherever the builder, within
the meaning of that Order, is the authorized agency.

.6 CLAIMS ORDER

ORDER No. *271

By virtue of my authority as Commander of the Region, and whereas

I consider it necessary in the interests of protecting the rights of the
inhabitants of the Region and the maintenance of proper
tration, I hereby order as follows:

DEFINITIONS

.1 In this Order:
“claim”—a claim submitted in accordance with the provisions ©
of this Order;
“claimant”—a resident of the Region who has submitted a Claim;
“Claims person appointed by the Commander
of the Region to deal with claims;
“Claims Appeal Committee”—the appeal committee functioning
according to this Order;
“inhabitant of the Region”—a person whose permanent place
of residence is in the Region and who is present in the Region ai
the time of sumbission of the claim.

RIGHT TO SUBMIT A CLAIM |

.2 )a( An inhabitant of the Region who claims to have |
damage in the Region resulting from the act of soldiers of
the Israel Defence Forces, of a party acting in cooperation
with the Israel Defence Forces, or of a civilian working @

* Published August ,12 ;1968 Coll. P. & O. .J( & S.), p. .541
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 473

the services of the Israel Defence Forces, and that he is

entitled to compensation in respect of such damage, may
submit a claim to the Claims Staff-Officer.
)b( No claim shall be submitted pursuant to this Order in
respect of a cause of action that arose before June ,28 .1967
)c( Noclaim shall be submitted or considered, nor shall compensa-
tion be paid, pursuant to this Order, in respect of damage
caused within an area declared by the Commander of the
Region to be a combat zone, provided that the latter shall
have certified by document that the damage was caused
in consequence of a military operation executed out of
military necessity.

MANNER OF SUBMITTING CLAIM

.3 )a( A claim shall be submitted in writing, in triplicate, to the

Regional Command through the District Commander.
)b( The claim shall set out details of the circumstances in which
| the damage was caused, including the date of its occurrence,
| the substance of the damage, and the amounts of compen-
sation claimed.

TIME OF SUBMITTING A CLAIM

.4 )a( A claim shall be submitted within one year of the date of

occurrence of the damage or of its discovery, or of the

commencement of this Order, whichever the later date.
)b( The Claims Staff-Officer may permit a claim to be submitted
after the date specified in subsection )a( if he is of the
opinion that there was reasonable cause for the delay and
that permission to submit the claim is, in the circumstances
of the matter, in the interests of justice.

RIGHTS OF INDEMNITY FROM INSURANCE COMPANY

.5 No claim shall be submitted for damage in respect of which the

claimant has a right, under an insurance policy, to receive
indemnity from an insurance company.

APPROVAL OF COMMANDER OF THE REGION

.6 The Claims Staff-Officer shall not consider any claim until he

 4 APPENDICES

has obtained the approval of the Commander of the Region for

this purpose, generally or in a specific case.

CONSIDERATION OF CLAIM
.7 )a( Upon obtaining the approval of the Commander of the
Region, as provided in section ,6 the Claims Staff-Officer
shall consider the claim before him and determine whether
the claimant shall be compensated on his claim, and the
amount of compensation.
)b( For the purposes of considering a claim the Claims Staff-
Officer shall have all requisite authority concerning the sum-
moning of witnesses and their swearing, the compelling of
attendance, and presentation of documents, as conferred upon

a Military Court. A person who fails to carry out the directives

of the Claims Staff-Officer pursuant to this subsection com-
mits an offense under this Order.
)c( The Claims Staff-Officer shall give his decision in writing
and provide reasons for it.
)d( The decision shall be transmitted to the Commander of the
Region, to the claimant, and to any other interested party
in the matter.

APPEAL COMMITTEE
.8 For the purpose of hearing appeals against decisions of the Claims
Staff-Officer, there shall be appointed a Claims Appeal Committee,
composed of three members. The chairman of the Appeal Com-
mittee shall be a person with legal training.

APPEALS
.9 )a( A claimant shall be entitled to lodge an appeal against the
decision of the Claims Staff-Officer with the Claims Appeal
Committee within thirty days of the date on which the decision

comes to his knowledge.

)b( The Claims Appeal Committee may consider an appeal lodged
after the date specified in subsection )a( if it be of the
opinion that it is in the interests of justice to do so.
)c( In considering an appeal, the Claims Appeal Committee shall
have all the powers entrusted to the Claims Staff-Officer
under this Order.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 475

)d( The Claims Appeal Committee may confirm, set aside, cr

vary the decision of the Claims Staff-Officer.

)e( The Claims Appeal Committee shall give its decision in
writing and provide reasons for it.
)f( The decision of the Claims Appeal Committee shall be final.

INDEPENDENT STATUS
.a9 In functioning as an Appeal Committee, the members thereof

are under no authority save that of the law or of security enact-

ments nor are they subject to the authority of the Commander.

RULES OF PROCEDURE
.b9 )a( The Appeal Committee shall not be bound by the laws of
evidence or rules of procedure other than those prescribed
by this Order, and shall prescribe its own rules of procedure,
subject to subsection )b( and provided that every appellant
is secured the right to appear before it in order to submit
his evidence and contentions, or to be represented before 1t
for this purpose by an advocate.

FURTHER CONSIDERATION BY DIRECTIVE OF THE COM-

MANDER OF THE REGION
.10 )a( The Commander of the Region may direct that any decision
of the Claims Staff-Officer shall be brought before the Claims
Appeal Committee for further consideration.
)b( The powers of the Claims Appeal Committee in a further
consideration as aforesaid shall be as those extended to #
under section .9

EXECUTION OF FINAL DECISIONS

.11 )a( For the purposes of this section, “final decision” meams @
decision of the Claims Staff-Officer against which mo appeal
has been lodged within thirty days, and in respect of
the time for lodging an appeal has not beem
provided in subsection 9 )b( or by a decision of Ge
Appeal Committee.
)b( A final decision in which the sum of So the
claimant is fixed, shall constitute a legal for
of the payment.
 ‫וו‬

476 APPENDICES

PREVENTION OF MULTIPLE LITIGATION

.12 Neither the Claims Staff-Officer nor the Claims Appeal Committee
shall consider a claim while litigation in respect of the same
cause of action is being conducted before another judicial instance.

.7 SECURITY PROVISIONS ORDER

(Consolidated Version )1980

ORDER No. *378

In exercise of my powers as Commander of the Region, I hereby

order as follows:

Chapter II: Courts and Jurisdiction

ESTABLISHMENT OF COURTS

.3 )a( Military Courts shall be set up in the Region: three-judge

Military Courts as provided in section ,4 and single-judge
Military Courts as provided in section .50
)b( The Commander of the Region shall, on the recommendaticn
of the Military Advocate General, appoint—
)1( legally quatified officers of the rank of captain and above
to act as legally qualified judges;
)2( a legally qualified judge of the rank of lieutenant colonel

or above to act as President of the court;

)3( legally qualified judges to act as Deputy Presidents of
the Court to carry out the functions of the President of
the Court in his absence or when no President of the Court
has been appointed as provided in paragraph .)2(

COMPOSITION

.4 )a( A three-judge court shall comprise three judges who are

officers of the IDF, of whom one at least is a legally qualified

* Published June ,7 ;1967 Coll. P. & O. .J( & S.), p. ,5 as amended down to :1980
this text includes only a selection of the important sections.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 477

judge; the bench of a court shall be determined by the Pre-

sident.
)b( The President of the court shall act as presiding judge of

every bench on which he sits. When he does not sit, he shail

appoint another legally qualified judge to act as presiding
judge.
)c( )1( At the request of the Chief Military Prosecutor a three-
judge court may at any stage of a hearing and until judg-
ment is given remit the trial of a defendant to a single
judge court set up in accordance with section .50
)2( Where the single judge was a member of the bench
from which the trial was remitted, he shall continue the same
from the stage reached by the court before remittal and he

may, after giving the parties an opportunity of making their

submissions on the matter, treat the evidence taken by his
predecessors as if he himself had taken it or take such
evidence again wholly or in part.

JURISDICTION

.7 "al A Military Court shall be competent to try any offence

defined in security enactments and any offence defined by
law, subject to all provisions in security enactments.
)b( In trying an offence under law, a Military Court shall, ia
addition to any powers it may have under security enact-
ment, possess the powers granted to a local court within
the meaning of the Local Courts Order were it to try the
offence.
)c( A Military Court shall also be competent to try, as provided
in subsection ,)a( any one who committed an act outside
the Region which would constitute an offence had it been
committed within the Region and the act prejudiced or was
designed to prejudice the security of the Region or public
order therein.

PROSECUTOR AND DEFENCE COUNSEL

.8 The prosecution before a Military Court shall be conducted by

a Military Prosecutor appointed by the Commander of the Region.

The defendant may be defended by a defence counsel.
 18 APPENDICES

EVIDENCE

.9 As regards the law of evidence, Military Courts shall proceed—

according to the rules prevailing in Military Tribunals trying
soldiers. However, a Military Court may deviate from the rules
of evidence for special reasons which shall be recorded, if ‫א‬
deems it just to do so.

PUBLIC HEARINGS

ll. )a( A Military Court shall hold the hearings which take place
before it in Open court; however, a Military Court may
order that the whole or any part of a hearing before it shail
take place in closed court if it is of the opinion that it is
proper to do so for reasons of the security of the IDF, the
security of the public, the defence of morals on the well
being of an infant.
)b( Where a Military Court has directed that a hearing shall
take place in closed court, it may permit a person or group
of persons to be present during all or part of the hearing.
)c( No person shall, without leave of the court, publish or
disclose to another anything concerning a hearing which =
Military Court conducts in closed session. |
)d( No person shall, without leave of the court, take photo-
graphs in a Military Court or publish any such photographs.

INTERPRETER FOR THE DEFENDANT

.12 If the defendant does not understand Hebrew, the Military Court
shall appoint an interpreter in order to translate to him what is
said during the course of the hearing and the decisions of the
Court, unless the defendant has voluntarily waived the translation
in whole or in part. The defendant has the Tight to object to the
interpreter and to request his replacement.

KEEPING THE RECORD

.S1 )a( The President of the Court shall himself or by means of a

registrar keep a record of the hearings.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 479

EXAMINATION OF WITNESSES

.18 Witnesses, other than a defendant making an unsworn statement,

who give evidence before a Military Court, shall be liable to
examination, cross-examination, and re-examination.

CONVICTION BY MILITARY COURT TO BE UNANIMOUS

.20 Decisions of a Military Court, including judgment and verdict,

shall be taken by a majority vote. Where no majority exists
regarding the mode or measure of penalty, the judge who has
proposed the severest mode or measure of penalty shall be deemed
to have joined in the view of the judge who has made a proposal
closest to his own. For the purpose of this section the presiding
judge shall determine which is the severest penalty.

CHARGE SHEET AND PLEA TO THE CHARGE

.21 )a( Prior to a defendant being brought before a Military Court,

the nature of the charge and its particulars shall be entered

on a charge sheet which shall be filed in court by a Military

Prosecutor. At the commencement of the charge sheet, the
Military Prosecutor shall indicate whether the charge is
being filed in a three judge or single-judge court. A copy of
the charge sheet shall be delivered to the defendant prior
to his trial.

CASE OF PERSON LIABLE TO DEATH PENALTY

.27 Where a person has been charged with an offence for which he
would be liable to the death penalty. .. he shall be deemed to have
denied the charge.

CASE FOR DEFENCE

.31 )a( Where at the conclusion of the case for the prosecution it

appears to the court that the evidence adduced is prima

facie sufficient to require the defendant to answer any charge
the court shall explain to the defendant that he is at liberty
to testify in defence and thereupon will be liable to be cross-
examined or to refrain from testifying and the consequences
480 APPENDICES

of so refraining as provided in subsection )b( and the court

shall ask him whether he wishes to testify or to call any wit-

ness in his defence. The court shall hear the evidence of the
defendant, if he desires to testify, and the evidence of any
witness called to testify.
)b( Where a defendant refrains from testifying, the fact may

serve to increase the weight of the prosecution’s evidence

and also to corroborate the prosecution’s evidence where
it needs corroboration.
)c( Where the defendant declares that he has witnesses but that
they are not present, the court may in its discretion adjourn
the hearing and also, if it deems it proper, order such steps to
be taken as will ensure appearance of these witnesses at the
time it shall prescribe.

SUMMING UP

.32 Upon the conclusion of the case for the defence, the prosecutor

may sum up his arguments, and after him the defendant or his
defence counsel may sum up his arguments.

IMMEDIATE PRONOUNCEMENT OF ACQUITAL

.33 Where the court has acquitted the defendant, it shall fortwith

pronounce his acquital and the defendant shall be released, unless

he is held in custody for other reasons.

PRESENCE OF DEFENDANT AT TRIAL

.35 )a( Every person tried in a Military Court shall, as long as he

conducts himself property, be entitled to be present throughout
all proceedings in the trial.
)b( If he conducts himself improperly, the court may, in its
discretion, order the defendant to be removed from the
courtroom and the proceedings in the trial to continue in
his absence, provided that it shall cause the defendant to
be informed of what is taking place during the proceedings
of the trial and the defendant shall be given an opportunity
of defending himself.
)c( The court may, if it thinks it proper, permit the defendant
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 481

to remain outside the court during the whole or part of the

trial on such terms as it shall determine.

PERIOD OF ARREST

.38 Where a Military Court has imposed a sentence of imprisonment

upon a convicted person it shall include in the term of imprison-

ment any period during which the convicted person was held
under arrest in connection with the same offence before sentence

was passed.

CONFIRMATION OF JUDGMENT

.39 As soon as possible after the conclusion of a case, a judgment

of conviction shall be transmitted for confirmation by the Com-
mander of the Region.

POWERS OF CONFIRMING COMMANDER

.42 The Commander of the Region may, upon confirmation:

)1( confirm the conviction and sentence; or
)2( set aside the finding of the court, acquit the accused, and
direct his release; or
)3( confirm the conviction but mitigate his penalty; or
)4( on the recommendation of the Chief Military Advocate, set
aside the hearings and order a new trial before the same court

or before any other Military Court.

APPLICATION TO COMMANDER OF REGION

.43 There shall be no appeal to a judicial instance against judgment

but the convicted person may make appeal and application to
the Commander of the Region or the Military Commander, as
the case may be, concerning conviction or sentence. The Military
Court which sentenced the defendant shall bring to his know-
ledge his right under this section.

REVIEW OF SENTENCE

.44 The Commander of the Region may at any time review the
judgment of a Military Court, and he shall have power to try
the convicted person or mitigate his penalty.
 ‫ה‬

482 APPENDICES

PENALTIES

.47 )a( )1( Where a person is convicted before a Military Court,

the court may sentence him to any penalty not exceeding
that prescribed for the offence by law or by security
enactment, as the case may be, or any lighter penalty,
including imprisonment and fine jointly, provided that

a fine exceeding IL 5000000 shall not be imposed

where only a penalty of imprisonment is prescribed for
the offence.

SINGLE-JUDGE MILITARY COURTS

.50 )a( A single-judge Military Court shall be composed of a legally

qualified judge who shall be appointed by the President of
the court from among legally qualified judges (such court
being hereinafter called “a Single Judge”).
)c( )1( A Single Judge shall sit at such times and places as he
shall direct;
)2( A Single Judge shall not have power to decree the death
sentence;
)3( )4( Single Judge shall not have power to decree

one sentence or on any defendant imprisonment ex

ceeding five years, or a fine exceeding IL ,5000000 or
both such imprisonment and fine together;
)5( In relation to the judgment and verdict of a Single Judge,

a Military Commander may, either of his own motion

or on the application of the sentenced person:
)i( set aside the decision, acquit the defendent, and
direct his release:
)ii( mitigate the penalty.
)e( A defendant brought to trial before a Single Judge may
the commencement of the hearings request that this case
Temitted to a Military Court set up under section ,4 |
the Single Judge must comply with the request. A Single
Judge shall at the commencement of the hearings inform
the defendant of his tight under this section.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 483

ARRESTS

.78 )a( A soldier may, without an arrest warrant, arrest any person
who commits, or is suspected of having committed, an offence
under this Order.

)b( Anyone arrested under subsection )a( shall be transferred

as soon as possible to a police station or to a place of

detention prescribed under this Order.

)c( An arrest warrant shall be obtained within a reasonable

period of time in respect of anyone arrested under subsection
;)a( where no such warrant is issued within 96 hours of
his arrest, he shall be released.

)d( A police officer is competent to issue an arrest warrant for

a period not exceeding seven days.

)e( Where it comes to the knowledge of a police officer of a
rank not below that of inspector that the investigation material
collected against a person in respect of whom an arrest
warrant has been issued under subsection )d( requires his
continuing to be held under arrest, he may extend the warrant
for a further period not exceeding seven days.

)f( )1( A Military Court is competent to issue an arrest warrant

for a period not exceeding six months;
)2( Where an arrest warrant is issued for a period less than

_ six months,
extend it, a Military
provided Court may, from
that all the periods time to time,
of arrest to-
gether shall not exceed six months.

)g( Where a charge sheet is filed in a Military Court, the court

is Competent.to direct the arrest of the defendant until the
conclusion of his trial.

)h( An arrest warrant under subsections )d( to )g( shall be

implemented by a soldier.

)i( )1( A Military Court of a police officer is competent to direct

the release of anyone arrested under this section; a person
arrested under an arrest warrant of a court may be
released only by court order but anyone arrested under
subsection’ )g( may be released only by order of the

same court which directed his arrest; :

 4 APPENDICES

)2( A police officer shall not release anyone whose arrest

has been extended in accordance with subsection
unless his rank is not below that of inspector.
)j( In this section “a police officer” means an officer to whom
the Police Forces Acting in Coordination with the IDF Order
.oN( )52 1967 applies.

RELEASE ON BAIL BOND

.79 )a( Release under section 78 )i( may be on the personal bond
of the arrested person or defendant, either alone, or along
with the bond of a surety, or by a cash deposit by the arrested

person or a surety, or partly by deposit, as the police officer

or court that stipulated the bond as a condition for release
shall direct.

Chapter V: Restriction and Supervision Orders

RESTRICTION ORDERS

.85 )a( A Military Commander may issue an order in respect of am

person for all or any of the following purposes:

)1( to secure that, except insofar as he may be permitte
by order or by an authority or person specified in @
order, the person shall not be found in any of the
in the Region specified in the order;
)2( to require him to notify his movements in the manne
and at the times and to the authority or person specifie
in the order;
)3( to prohibit or restrict the possession or use by that pe:
of any objects specified in the order;
)4( to impose upon him restrictions concerning his
ment or business, or his association with other perse
or his activities relating to the dissemination of imfe
mation or views, all as may be specified in the order
)b( Any person who contravenes an order under this sect
shall be guilty of an offence under this Order.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 485

SPECIAL SUPERVISION

.86 )a( A Military Commander may by order direct that any person
shall be placed under special supervision.
)b( Any person placed under special supervision in accordance
with this section shall be subject to all or any of the following
restrictions, as the Military Commander may direct:
)1( he shall be required to reside within the limits of a
particular place in the Region specified by the Military
Commander in the order;
)2( he shall not leave the town, village or district within
which he resides without the written authority of the
Military Commander;
)3( he shall at all times notify the Military Commander,

or a person directed by the Military Commander, of

the house or place in which he resides;
)4( whenever required by the Military Commander he shail
be liable to present himself at a place specified by the
Commander;
)5( he shall remain within doors during such hours as the
Military Commander may specify in the order.
)c( Any person in respect of whom an order has been made
under subsections )a( and )b( may be arrested by any
soldier and conveyed to the area in which he should be.
)d( Any person who contravenes an order under this section
shall be guilty of an offence under this Order.

Chapter V(1): Administrative Detention

ADMINISTRATIVE DETENTION

.87 )a( Where the Commander of the Region has reasonable grounds
to believe that for reasons of the security of the Region or
of public security a person must be held in detention, he

may by order under his hand direct that the person be

detained for the period specified in the order which shall not
exceed six months.
)b( Where immediately before the expiry of an order under
subsection )a( (Hereinafter called “the original order”)
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 487

PERIODICAL RECONSIDERATION

.C87 Where a detention order is confirmed under this Chapter with

or without variations, a legally qualified judge shall, so long

as the detainee has not been released, reconsider the detention
not later than three months after confirmation thereof in ac-
cordance with section 87B or after a decision under this section

or within such shorter period as the legally qualified judge and

prescribed in his decision. Where the hearing before the judge
has not commenced within such period as aforesaid, the detainee
shall be released unless some other ground exists for his de-
tention under any law or security enactment.

APPEAL

.E87 )a( The decision of a legally qualified judge to confirm a de-

tention ordér, with or without variations, or to set it aside

or vary it, as well as a decision under section .C87 is

appealable to the President of the court within the meaning
of section 3 )c( .)2( The President of the court shall have
all the powers vested in a lawyer judge under this Chapter.
)b( The appeal shall not impede implementation of the order
unless the legally qualified judge or the President of the
court otherwise decides.

CLOSED COURT

.F87 The hearing of proceedings under this Chapter shall take place
in closed court.

NON-DELEGATION OF POWERS

.H87 The powers of the Commander of the Region under this

Chapter are not assignable.
488 APPENDICES

Chapter VI: Restrictions

CURFEW

.89 A Military Commander may by order require any person within

the area indicated in the order to remain within doors during such
hours as may be specified in the order. Any person found out of
doors within the said area during such hours without a permit in
writing issued by or on behalf of the Military Commander, shall
be guilty of an offence under this Order.

CLOSED AREAS

.90 )a( A Military Commander may by order declare any area or

place to be a closed area for the purpose of this Order. Any

person who, during any period in which any such order is

in force in relation to any area or place, enters or leaves that

area or place without a permit in writing issued by or on

behalf of a Military Commander, or with a permit obtained
by a false declaration, shall be guilty of an offence under
this Order.

Chapter VII: Miscellaneous Provisions

GENERAL PENALTY

.92 Any person who infringes the provisions of this Order, or does
not carry out a direction or duty prescribed in any security
enactment, shall be liable to imprisonment for five years or to
a fine of IL ,5000000 or both, if no other penalty is explicitly
provided for the offence.

.8 RULES OF CRIMINAL RESPONSIBILITY FOR

OFFENCES ORDER

ORDER No. *225

By virtue of my authority as Commander of the Region, I hereby

order that the provisions concerning the rules of responsibility for aa

* Published March ,1 ;1968 Coll. P. & O. .S( & J.), p. .467

 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 489

offence, as specified herein, shall apply to the Military Courts unless

there be contained in a proclamation or order given by me any provision
to the contrary, expressly or by implication, on any of the matters
dealt with in this Order.

DEFINITION

.1 In this Order:
“offence”—an act, omission, or attempt punishable by law ‫זט‬
security legislation.

OFFENCES COMMITTED PARTLY WITHIN AND PARTLY

OUTSIDE THE REGION

.2 When an act which, if wholly committed within the Region would

be an offence, is committed partly within and partly outside the
Region, every person who within the Region committed any part
of such act may be tried and punished in the same manner as
if such act had been committed wholly within the Region.

IGNORANCE OF LAW OR SECURITY ENACTMENT

.3 Ignorance of the law or security enactment does not afford any

excuse for any act or omission which would otherwise constitute

an offence, unless knowledge of the law or security enactment
on the part of the offender is expressly declared to be an element
of the offence.

CRIMINAL RESPONSIBILITY OF A MINOR

.4 A person under the age of twelve years is not criminally res-

ponsible for an act or omission.

INTENTION, MOTIVE

.5 )a( Subject to the provisions of law and security enactment

relating to negligent acts or omissions, a person is not cri-
minally responsible for an act or omission which occurs
independently of the exercise of his will or for an event
which is of accidental occurrence.
)b( Unless the intention to cause a particular result is
 490 APPENDICES

declared to be an element of the offence committed, wholly

or in part, by an act or omission, the result intended to be

caused by an act or omission is immaterial.
)c( Unless it is otherwise expressly declared, the motive by which

a person is induced to do or omit to do an act or to form

an intention is immaterial so far as regards criminal respon-
sibility.

MISTAKE OF FACT
.6 A person who does or omits to do any act under an honest and
reasonable but mistaken belief as to the existence of a state
of affairs is not criminally responsible for the act or omission to

any greater extent than if the real state of affairs had been such
as he bilieved to exist.

PRESUMPTION OF SANITY

.7 Every person is presumed to be of sound mind and to have been

of sound mind at all times under consideration, until the con
trary is proved.

INSANITY

.8 A person is not criminally responsible for an act or omission if

at the time of doing the act or making the omission he was
incapable of understanding what he was doing or of
that such action or omission was forbidden, due to a disease
affecting his sanity. But a person may bear criminal responsibility
for an act or omission even though his sanity was affected by 8
disease if such disease does not in fact produce upon his mind

one of the aforementioned effects in reference to such act or

omission.

INTOXICATION
.9 )a( Save as provided in this section, intoxication shall not com
stitute a defence to any charge;
)b( Intoxication shall be a defence to any charge if by reasom
thereof the person charged did not, at the time of the act or
omission complained of, know that such act or omission was
wrong, or did not know what he was doing, and:
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 491

)1( the state of intoxication was caused without his consent

by the malicious or negligent act of another person; or
)2( the person charged was by reason of intoxication insane,
temporarily or otherwise, at the time of such act or
omission.
)c( Where the defence under the preceding subsection is establi-
shed, then in a case falling under paragraph )1( thereof
the accused shall be discharged, and in a case falling under
paragraph )2( the provisions of section 7 shall apply.
)d( Intoxication shall be taken into account for the purpose of
determining whether the person charged had formed any
intention, specific or otherwise, in the absence of which
he would not be guilty of the offence charged.
)e( For the purposes of this clause, ”noitacixotni“ shall include
the condition induced by the use of narcotic drugs.

CONSTRAINT

.10 Except murder and other offences punishable by death, no act

is an offence which is done by a person who is compelled to do
it by others who at the time of doing it reasonably cause
the apprehension that instant death or grievous harm to that

person will otherwise be the consequence; provided that the person

doing the act did not of his own accord place himself in the
situation by which he became subjected to such constraint.

NECESSITY

.11 An act or omission which would otherwise be an offence shall

be excused if the accused can show that it was done or omitted
to be done only in order to avoid consequences which could not
be avoided in any other manner and which, it they had followed,
would have caused grievous harm or injury to his person, dignity,

or property, or to the person or dignity of others whom he was

bound to protect, or to property entrusted in his charge: provided
that in so acting he did no more than was reasonably necessary
for that purpose, and that the harm caused by the act or omission

was not greater than the harm avoided.

 2 APPENDICES

JUSTIFICATION

.12 A person is not criminally responsible for an act or omission

he does or omits to do the act under any of the following
cumstances:
)1( in execution of security enactment or law;
)2( in compliance with the order of a competent authority which
he is bound by security enactment to obey, unless the order
is manifestly unlawful.
Whether or not an order is manifestly unlawful is a question of
law.

COERCION BY HUSBAND

.13 A married woman is not free from criminal responsibility fe

doing or omitting to do an act merely because the act or
takes place in the presence of her husband.

.9 DEFENCE IN MILITARY COURTS ORDER

ORDER No. *400

Considering it necessary for the purpose of proper administratie

I hereby order as follows:

DEFINITIONS

.1 In this Order:
“a Military Court” has the meaning it bears in section 3 of the
Security Provisions Order —( & S) (Order No. )378 ;1970
counsel” means a local or an Israeli lawyer;
“an Israeli lawyer” means a person who may practise law unde
the Law of Israel;
“a local lawyer” means a person who may practise law under the
law with such modifications as derive from security enactment

DEFENCE BEFORE A MILITARY COURT

.2 A defendant in a Military Court is entitled to defend

through defence counsel or to conduct his own defence.

* Published July ,3° ;1970 Coll. P. & O. .J( & S.), p. .933 Amended version of
Order No. ,143 published October ,8 ;1967 Coll. P. & O. .J( & S.), p. .302
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 493

APPOINTMENT OF LAWYER BY LEGAL ADVISER

.3 A Legal Adviser may in cases which he deems it proper appoint

for a defendant with his consent defence counsel to conduct his
defence.

APPOINTMENT OF LAWYERS BY COURT

.4 Where a person charged with a serious offence has not chosen

defence counsel or has not had defence counsel appointed for
him by a Legal Adviser, a Military Court shall with his consent
appoint defence counsel for him.

APPOINTMENT OF DEFENCE COUNSEL BY CONSENT ALONE

.5 A lawyer shall not be appointed as defence counsel under sec-

tions 3 or 4 unless the defendant has consented thereto.

DUTIES OF DEFENCE COUNSEL

.6 Defence counsel chosen or appointed shall represent the defen-

dant in every proceeding connected with the trial in respect of
which he has been chosen or appointed.

CESSATION OF REPRESENTATION BY DEFENCE COUNSEL

.7 )a( Defence counsel shall not cease to represent a defendant

except by leave of a Military Court.
)b( A Legal Adviser who has appointed defence counsel for a
defendant may, until commencement of hearings in a Mili-
tary Court, permit him to cease representing the defendant.

RESTRICTION ON APPOINTMENT OF DEFENCE COUNSEL

.8 A Military Court which has given defence counsel leave to cease

representing a defendant for lack of cooperation may, notwith-
standing the provisions of section ,4 refrain from appointing
another defence counsel for the defendant if it deems that the

same will be of no avail.

 494 APPENDICES

CHANGE OF DEFENCE COUNSEL

.9 Where a defendant wishes to change defence counsel, a Military

Court shall not refuse to give the previous defence counsel leave
to cease representing the defendant, unless it appears that the
change of defence counsel will necessitate unreasonable post-
ponement of the case.

REMUNERATION OF DEFENCE COUNSEL

.10 )a( Where defence counsel has been appointed by a Military

Court or by a Legal Adviser, a Military Court shall fix his
fees and it may approve the disbursement of the defence.
)a( A Military Court or a Legal Adviser, as the case may be,

may approve payment in advance of anticipated disburse-

ments of the defence.
)c( Where a Military Court has not fixed the fees of defence
counsel or approved the disbursements of the defence, the
Legal Adviser of the Regional Commander may fix the fees
and approve the disbursements of the defence.
)d( Where defence counsel appointed by a Legal Adviser has,
in accordance with the provisions of section )b(7 ceased
to represent a defendant before commencement of hearings
in a Military Court, his fees shall be fixed by the Legal
Adviser of the Regional Commander, who may also approve
the disbursements of the defence.
)e( The fees of defence counsel and the disbursements of the
defence shall be met out of the funds of the Regional Com-
mand.
)f( For the purpose of this section “the disbursements of the
defence” includes the disbursements of defence counsel.

PROHIBITION ON RECEIVING REMUNERATION

.11 Defence counsel entitled to his fees and the disbursements of the
defence as provided in section 10 shall not receive from the
defendant or any other person any remuneration, recompense,
gift or other benefit.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 495

LAWYER’S COSTUME

.12 No defence counsel shall be heard in a Military Court unless he

is garbed in the costume of a lawyer as specified in section 13
below except when the court has otherwise permitted him, but
defence counsel may be heard by a judge in chambers without
being garbed in the costume of a lawyer.
.13 The costume of a lawyer consists of a white shirt, a black tie.

a dark suit and a black gown.

REPEAL

.14 The Order concerning Defence in a Military Court (J & S)

.oN( )143 1967 is repealed.

.10 INTERPRETATION ORDER

ORDER No. *130

By virtue of my powers as Commander of the IDF in the Region in

Judea and Samaria, I hereby order as follows:

Chapter 1

DEFINITIONS AND PRINCIPLES

WORDS AND PHRASES

.1 In any security enactment each of the following words and

phrases shall be construed as hereinafter respectively provided
unless it is otherwise stated in such security enactment or unless
there is something in the subject or context repugnant thereto or
inconsistent therewith, and every grammatical variation and cog-
nate expression shall be similarly construed
)1( ”nosrep“ includes a body corporate or an unincorporated
body of persons;

* Published September ,27 ;1967 Coll. P. & O. .J( & S.), p. .272
496 APPENDICES

)2( ”ymene“ includes armed rioters or armed rebels or any

one participating in armed action against the IDF:

)3( “responsible person” in respect of aircraft, vehicles or
vessels includes the person who for the time being has
possession or control of the same or his superior for the
time being;
)4( ”pihs“ means a vessel used for sailing and not propelled
by oars alone;
)5( ”laeper“ of a security enactment or law includes repeal
of part thereof and a provision under or by virtue of
which any such enactment or law ceases to have effect;
)6( ”esuoh“ includes every building or place serving or in
tended to serve as a human dwelling, whether above or
below the surface of the ground;
)7( “in writing” includes printed, typewritten, mimeographed.
photographed or any other mode of representing or copy-
ing works or figures in visible form.
)a7( ”ega“ means the number of years and part of a year of

a person’s age according to the Gregorian calendar; bur

so long as the contrary is not proved—
)a( a person shall be deemed to have been born on the
first day of the year in which he was born and
)b( a person shall be deemed to have been born on the
first day of the month in which he was born:
)8( ”wal“ means any legislative act of the legislative author-
ity which was in force in the Region on the determining
day, including every directive given by virtue of such
legislative act but excluding a security enactment;
)9( “the Region” means the Region of the West Bank;
)10( “the determining day” means 7 June :1967
)a10( “a Legal Adviser” means the officer appointed by the
Military Advocate General to be the legal adviser of the
Commander of the Region or of a Military Commander:
)11( ”noissessop“ means holding a thing under a person’s com
trol or supervision and includes control of any thing under
the authority of another or situated in any place whether

or not belonging to or occupied by such person;

)a( where one or some of two or more persons possess
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 497

or control any thing, it shall be deemed to be under his or

their control;
)b( where a person occupies a place where a thing is or

was situated, he shall, so long as the contrary is not

proved, be deemed to possess or to have possessed that
thing;

)12( means a member of the IDF;

)13( ”erutangis“ with reference to a person unable to write his

name includes his finger prints;

)14( ”tropmi“ means to bring or cause to be brought into the
Region by land, sea or air;
)15( ”tropxe“ means to take or cause to be taken out of the
Region by land, sea or air;

)16( ”tfarcria“ means an airplane, helicopter, glider, balloon,

hovercraft or other craft that may fly;
)17( ”elcihev“ means a land or amphibian vehicle propelled by
mechanical power of any kind or form or towed by such
vehicle as aforesaid including bicycles and_ tricycles,
whether the vehicle serves or is intended to serve for agri-
cultural, road-laying or any other work and whether it

moves on wheels or tracks;

)18( ”lessev“ means a ship, boat or other vessel that may be
navigated;

)19( “movable property” or ”sdoog“ means property of every

description, including any right, interest or benefit therein,
other than immovable property;
)20( ”elas“ includes exchange, barter and offering or exposing
for sale;
)21( “Military Commander” has the meaning it bears in the
SPO and includes a person vested with the powers of a
Military Commander thereunder;
)22( “immovable property” includes each of the following
whether the public or a private person has a right thereto—
)a( land of any category;
)b( roads and railway lines;
)c( ports;
)d( airfields;
)e( every building, tree, growth or other thing situated
498 APPENDICES

in or on land as an inseparable part thereof or attached

thereto whether so situated or attached permanently oF
temporarily;
)f( every part of the sea or coast;
)g( every surface or subterranean source of water, natural
set-up or installed, including pools, reservoirs, pits, wells,
canals or drains;
)h( mines or quarries of every description situated in, om
or under land;
)i( every right, interest or easement in land;
)23( ”enevartnoc“ or ”etaloiv“ in relation to any provision,
requirement, licence or condition prescribed by a security
enactment includes non-compliance;
)24( ”ecneffo“ means an act, attempt or omission punishable
under or by virtue of a security enactment:
)25( ”ytlanep“ in relation to an offence means a fine or im
prisonment or the death penalty;
)26( ”hsilbup“ includes to distribute, supply, allocate, deliver
inform or furnish a person with anything;
)27( ”FDI“ means the forces of the Defence Army as
well as other armed forces acting in cooperation with #
or under its command:
)28( ”werc“ in relation to aircraft, vehicles and vessels means
everyone engaged in the operation, navigation, maim
tenance thereof or in any other employment, occupation,
work or service threin;
)29( ”reciffo“ means an officer in the IDF :
)30( ”teerts“ or ”daor“ includes any highway, avenue, lane
bridleway, footway, Square, court, parade, alley, level, sub
terranean passage, bridge or open place used or fre
quented by the public or to which the public has or &
permitted to have access;
)31( ”yawliar“ includes a cable railway, tube railway, steam
engine, carriage, wagon or platform propelled, towed or
impelled by steam power, petrol, electricity or any other
mechanical means, including a station, track, bridge, cable,
workshop, warehouse, garage and every place, building or |
installation serving or intended to serve the requirements
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 499

of a railway, its operation, maintenance or other func-

tioning, occupation, employment, work or service con-
nected with such requirements as aforesaid;
)32( “local authority” means a municipal corporation, local
council or other similar authority established under law

or security enactment;
)33( ”timrep“ means a permit, licence, authorisation, permission,
approval or exemption granted under security enactment;
)34( “essential services” means services required for any one
of the following—
)a( the security of Israel or the IDF;
)b( the preservation of public security or peace in the
Region;
)c( the maintenance of public order in the Region;
)d( the supply of essential public medical economic or
spiritual requirements of the Region;
)35( ”esael“ includes a sublease;
)36( ”raey“ and ”htnom“ means respectively a year and month
according to the Gregorian calendar;
)37( “financial year” means the twelve months ending on 31
March of any year;
)38( ”noitaroproc“ includes an association of corporations;
)39( “security enactment” means a proclamation, order, notice,
notification, request, permit, appointment or any other
document issued either before or after the commencement
of this Order by the Commander of the IDF in the Region,

a Military Commander or other authority acting for them

or on their behalf or with their approval.

NUMBER AND GENDER

.2 In every security enactment, unless otherwise expressly provided

therein or unless something in the subject or context is imcon-
sistent with such construction, the singular includes the plural
and vice versa and the masculine includes the feminine.

MEANING OF ,”RO“ ,”REHTO“ ”ESIWREHTO“

.3 Where the word ,”ro“ ”rehto“ or ”esiwrehto“ occurs in security

enactment, it shall, unless a contrary intention appears, be con-
 500 APPENDICES

strued disjunctively and not as implying similarity unless the

word ”ralimis“ or some other word importing similarity is added _

COMPUTATION OF TIME
.4 In computing time for the Purpose of any security enactment,
unless the contrary intention appears—
)a( a period of days from the doing of an act or the happening
of an event shall be exclusive of the day on which the act or event

occurs;
)b( a period prescribed shall not be interrupted or affected by
the fact that the last day of the period is a day of rest, public
holiday or legal holiday under the provisions of any law or
security enactment or is a day of rest of any community. |

PROVISIONS WHERE NO TIME PRESCRIBED

.5 Where no time is prescribed or allowed in a security enactment
for the doing of an act, the same shall be done with all con-
venient speed and as often as the prescribed occasion arises.

MEASUREMENT OF DISTANCE
.6 In the measurement of distance for the purpose of any security
enactment, the same shall, unless a contrary intention appears, —
be measured in a straight line on a horizontal plane.

APPLICATION OF DEFINITIONS
.7 Where any word or phrase defined in a security enactment is
used in some other security enactment made by virtue thereof,
the same shall bear the meaning it has in the original security
enactment, unless there is anything in the subject or context —
repugnant to or inconsistent with such meaning.

Chapter 2

PRIORITY AND APPLICATION

PRIORITY OF SECURITY ENACTMENTS

.8 )a( A security enactment takes priority to any law even where _
not so provided expressly.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 4

)b( A security enactment made by the Military Commander of

the IDF in the Region takes priority to a security enactment
made by a Military Commander or any other authority acting

on behalf of the Commander of the IDF in the Region even

where not so provided expressly.
)c( Subject to subsections )a( and )b( the provisions of this
Order shall add to and not derogate from the provisions of

any security enactment or law.

)d( Subject to subsections )a( and )b( the powers granted by
this Order are in addition to and not in derogation of the

powers possessed by the Commander of the IDF in the Region

or by any other authority acting on his behalf.
)e( Unless otherwise provided, a security enactment shall not be
construed so as to derogate from the existing rights, powers,
authority and immunities of the Commander of the IDF in
the Region that derive from IDF government in the Region.
)f( Subject to subsection )b( the imposition of a duty in a
security enactment shall not exempt the performance of a
duty under any law or other security enactment except to
the extent that it is otherwise provided in the security enact-
ment.
)g( Subject to subsection )b( the grant of a permit under a
security enactment in respect of some prohibition, restriction

or supervision shall not exempt from the duty to obtain a

permit under any law or other security enactment requiring
the same except to the extent that it is otherwise provided
in the security enactment.

APPLICATION OF SECURITY ENACTMENTS

.9 A security enactment made by the Commander of the IDF in the

Region shall apply to the whole Region unless otherwise pro-
vided therein.

VALIDATION

.A9 Notwithstanding anything provided in any law, no act or deed

done or made in a judicial, quasi-judicial or administrative
proceeding shall be invalidated by reason only that i was Gome

or made in Hebrew.
 502 APPENDICES

Chapter 3

REPEALS

POWER TO VARY OR REPEAL

.10 The power to make a security enactment shall be construed so

as to include the power to repeal, vary and suspend the same.

REPEAL OF REPEALING SECURITY ENACTMENT

.11 Where any security enactment repealing a law or security enact-

ment is itself repealed, the last repeal shall not revive the law
or security enactment previously repealed unless words are added
reviving the same.

REPEAL AND SUBSTITUTION

.12 Where any security enactment repeals a law or security enact-

ment and substitutes other provisions therefor, the repealed law
or security enactment shall, unless a contrary intention appears.
remain in force until the substituted provisions come into operation.

EFFECT OF REPEAL

.13 )a( Where any security enactment repeals a law or security

enactment and re-enacts a provision thereof with or with-
out modification, references in any law or security enact-
ment to the provisions so repealed shall, unless a contrary
intention appears, be construed as references to the provision

so re-enacted.
)b( Where any security enactment repeals a law or security
enactment, the repeal shall not, unless a contrary intention
appears—
)1( affect the previous operation of the law or security
enactment so repealed or anything duly done or suffered
thereunder;
)2( affect any right, privilege, duty, obligation or liability
acquired, accrued or incurred under the law or security
enactment so repealed:
)3( affect any penalty, forfeiture or punishment incurred in
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 503

respect of an offence committed against the law or security

enactment so repealed;
)4( affect any investigation, legal proceeding or remedy in
respect of such right, privilege, duty, obligation, liability,
penalty, forfeiture or punishment as aforesaid; and any in-
vestigation, proceeding or remedy may be instituted, con-
tinued or enforced and any penalty, forfeiture or punish-
ment may be imposed as if the repealing security enactment
had not been made.

EFFECT OF REPEAL ON REGULATIONS AND APPOINT-

MENTS

.A13 Where any security enactment repeals a law or security enact-

ment and substitutes other provisions therefor, all security
enactments, regulations, permits and appointments made or
granted by virtue of the law or security enactment so repealed
and in force at the time of the repeal shall remain in force so
far as they are not inconsistent with the provisions of the
repealing security enactment and unless the contrary intention

appears, until they have been revoked or replaced by regulations

and appointments made under the repealing security enactment.

Chapter 4

POWERS

APPOINTMENT, CONFERMENT OF POWERS, IMPOSITION

OF DUTIES BY NAME OR DESIGNATION OF OFFICE

.14 )a( An appointment, conferment of powers or imposition of

duties may, for the purpose or by virtue of a security enact-
ment, be made by naming a person or designating an office.
)b( Where a security enactment refers to the holder of an office
by designating the office, the same shall include the holder
for the time being of that office wholly or in part and the

person appointed as deputy for such holder of the office.

)c( Where a security enactment confers any power or imposes
 504 APPENDICES

any duty on the holder of an office as such, then, unless

the contrary intention appears, the power may be exercised
and the duty shall be performed by the holder for the time
being of the office or by a person appointed to act in his
place.

POWER TO APPOINT INCLUDES POWER TO SUSPEND

OR DISMISS

.15 The authority empowered under or by virtue of a security enavt-

ment to make an appointment shall also have the power to
Temove, suspend, re-appoint or re-instate any person appointed
by him to the office.

EXERCISE OF POWER AND PERFORMANCE OF DUTY

.16 Where any security enactment confers a power or imposes a

duty, then, unless a contrary intention appears, the power may
be exercised and the duty shall be performed from time to time

as occasion requires.

VESTING OF POWERS IN THE COMMANDER OF THE IDF

IN THE REGION

.17 )a( Where a security enactment refers to a Military Commander

or some other authority acting on behalf of the IDF in the

Region, the following provisions shall apply—
)1( the Commander of the IDF in the Region may exercise

every power and perform every task referred to therein;

)2( every act done by the Commander of the IDF in the
Region in the exercise of any power or in performance of

any task as aforesaid shall have priority to any prior act

of a Military Commander or other authority as aforesaid

even where the same has not been expressly rescinded.

)b( The exercise of any power or the performance of any task
under subsection )a( shall not be construed as negating
generally the power or task of the person having the same
unless expressly ordered by the Commander of the IDF in
the Region.
 APPENDIX C: SELECTED PROCLAMATIONS AND ORDERS 505

DELEGATION OF POWERS

.18 )a( Where any security enactment refers to the power or task
of the Commander of the IDF in the Region, he may in
writing delegate any part of such power or task to another

person, except the power to issue proclamations and orders

applicable to the whole Region.
)b( The Commander of the IDF in the Region may in writing
authorise any authority acting on his behalf and any person
to whom the powers of the Commander of the IDF in the
Region have been delegated, in accordance with subsection
,)a( to delegate such powers to another person.

CONSTRUCTION OF ENABLEMENT

.19 )a( Where under any security enactment a person has been given
the power to do or enforce the donig of any thing, all such

powers shall ipso facto also be given to him as are reasonably

necessary to enable him to do or enforce the doing of that
thing.
)b( The provisions of sections ,20 21 and 22 do not derogate
from the generality of subsection .)a(

IMPOSITION OF CONDITIONS

.20 The powers conferred by a security enactment shall be construed

as including the power to impose, add, rescind, vary or postpone

conditions.
.21 A soldier acting in the course of his duty may, in order to
maintain essential services, display or cause to be displayed any
notice at any place including aircraft, vehicles or vessels.

ENTRY AND USE OF FORCE

.22 Where any power is conferred by a security enactment, the person

sO empowered and any other person acting under his orders

may at any time enter any place, including aircraft, vehicles and
vessels, and for that purpose and for the purpose of exercising
his powers use all reasonable force the occasion requires against
any person, immovable or movable property.
 66 APPENDICES

Chapter 5

MISCELLANEOUS
POWER OF MAJORITY

CONSTRUCTION
OFREFERENCES
.24 Any reference in law or security enactment to any law or security
 TABLE OF CASES

DECISIONS OF THE SUPREME COURT OF ISRAEL

Abu Amarra v. Military Court )1952( 6 P.D., 395 298

Abu El Tin v. Minister of Defence )1973( 27 P.D. ,)1( 481 136
Abu Awad v. Regional Commander of Judea and Samaria )1979( 33 P.D.
,)3( 309 ,176 299
Abu Gosh v. Military Commander )1953( 7 P.D., 941 ,158 160
Adetto v. Amidar )1964( 18 P.D. ,)3( 51 148
Adwan v. Minister of Defence )1972( )detropernu( 121
Aljamyah Almasakhia Laarachi Almakadssa (Christian Society for the Holy
Places) v. Minister of Defence )1973( 26 P.D. ,)1( 574 ,43 ,48 ,53 ,133 136
,163 ,164 ,165 ,167 224
,225 ,226 ,239 ,240 277

v. Minister of Defence )1979( 33 P.D. ,)3( 505 48

Al-Turani v. A.G. )1952( 6 P.D., ;1145 )1951( I.L.R., 164 95
The American European Beit El Community v. Minister
of Welfare )1967( 21 P.D. ,)2( 325 137
Amira v. Minister of Defence )1979( 34 P.D. ,)1( 90 153
Arnon v. A.G. )1973( 27 P.D. ,)1( 234 136
Ashkenazi v. Minister of Defence )1976( 30 P.D. ,)3( 309 155
Ayoub v. Minister of Defence & Matweh v. Minister of Defence
(1979) 33 ,32 ,41 ,47 ,136 ,152 ,158 ,161 ,162 319
Azlan v. Military Governor )1955( 9 P.D., 689 ,158 ,159 160

Bader v. The State of Israel )1980( 34 P.D. ,)2( 818 213

Bejerano v. Minister of Police )1949( 2 P.D., 18 117
Binui Ufituach BaNegev v. Minister of Defence )1974( 28 P.D. ,)2( 449 119

Cherbet Bros. Building Co., Ltd. v. Society for the Aged )1973( 27 P.D. ,)1( 620
,115 119
Cohen v. Minister of Defence )1962( 16 P.D., 1023 .116 ;147 120
Custodian of Absentees’ Property v. Samara )1956( 10 P.D., 1825 135

Daoud v. Minister of Defence )1978( 32 P.D. ,)3( 474 260

Dvikat v. Government of Israel )1980( 34 P.D. ,)1( 1 ,41 ,47 ,134 ,153 ,158 ,161 162

Eichmann v. A.G. )1962( 16 P.D., 2033 ,47 135

El-Assad v. Minister of Interior )1980( 34 P.D. ,)1( 505 48
El-Avdah v. President of the Military Tribunal, )detropernu( 122
El-Azhari v. Minister of Interior )1965( 19 P.D. ,)1( 337 125

Fogel v. Broadcasting Authority )1977( 31 P.D. ,)3( 657 ,117 ,118 ,120 149

507
 508 TABLE OF CASES

Haetzni v. State of Israel (Minister of Defence) )1980( 34 P.D. ,)3( 595 ,36 179
HaHevra HaDromit ‫ל‬. Chief Rabbinical Council )1964( 18 P.D., 324 118
Hanzalis v. Tribunal of the Greek Orthodox Patriarchate )1969( 23 P.D. ,)1( 260

,123 358
Helou v. Government of Israel )1973( 27 P.D. ,)2( 177 ,41 ,47 ,111 ,115 133

,136 ,144 ,148152 ,154 155

Jabotinsky v. Weizmann )1951( 5 P.D., ;801 1 75 155

Jadai v. Chairman of the Execution Office, Haifa (1955) 135 ,354 ,357 360
Jerusalem District Electricity Corp., Ltd. v. Minister of Defence
)1973( 4 ,41 ,43 ,167 ,168 247

Latoshinski v. Kirshan )1967( 21 P.D. ,)2( 20 137

Leon v. Gubernik )1948( 1 P.D., 58 298
Levy v. Chief of General Staff )1967( 21 P.D. ,)2( 165 197
Levy v. Minister of Interior )1949( 2 P.D., 18 117
Liftawi v. Minister of Defence )1977( 31 P.D. ,)1( 266 ,122 357

Meron v. Minister of Labour )1970( 24 P.D. ,)1( 337 ,111 120

Mishal v. Minister of Defence )dehsilbupnu( 281

Nasser v. Tribunal of the Gregorian Armenian Community )1976( 30 P.D. ,)2( 4

,124 360
Nokhimovsky v. Minister of Justice )1954( 8 P.D., 1491 148

Quasme v. Minister of Defence )1981( 35 P.D. ,)3( 113 1

Ravidi v. Military Tribunal )1970( 24 P.D. ,)2( 419 112

Reiner v. Prime Minister )1965( 19 P.D. ,)2( 485 155

Sabou v. Military Commander )1949( 2 P.D., 701 ,132 138

Schneider and Welt v. Director of Development Authority )1959( 13 P.D., 891 148
Shalom v. Zorea )1977( 31 P.D. ,)1( 796 120
Shupra v. Weksler )1974( 28 P.D. ,)1( 510 ,112 133
Stampfer v. A.G. )1965( 10 P.D., 5 ,47 ,111 ,135 144
Steinberg v. A.G. )1951( 5 P.D., 1061 1
Stekol v. Minister of Defence )1967( )detropernu( 114
Suliman v. Minister of Defence )1979( 33 ;)2( 113 175
Sylvester v. A.G. )1948( 1 P.D., 5 ,127 ,132 138

Tao v. A.G. )1966( 20 P.D. ,)2( 539 309

Trudler v. Elections Officer )1963( 17 P.D., 2503 110

Weiss v. Inspector General of the Police )1958( 12 P.D., 179 112

DECISIONS OF THE ISRAELI MILITARY COURTS

IN THE ADMINISTERED TERRITORIES

.P.M( — Military Prosecutor; — Selected Judgments of Military Courts)

M.P. v. Abu Armana, 1 S.J.M.C., 68 ,211 212
 TABLE OF CASES 5

M.P.
‫שיאו‬
₪
>
He
‫אא‬
‫א‬
5
>>
>.
=
>>
₪
> 213
. Abu Barakat, 1 35
M.P. is
. Abu Daher, 2 S.J.M.C., 25
M.-P. 213
. Abu Kamar, 3 S.J.M.C., 100
M.-P. .175 6
. Abu Kebar, 2 S.J.M.C., 45
M.-P. .155 5
. Abu Medin, 1 S.J.M.C., 22
M.-P. Abu Ranem, 1 S.J.M.C., 130 ,178 ,179 .194 %6
M.-P. Abu Rob, 1 S.J.M.C., 305 z+
M.-P. ‫ו‬
. Abu Snima, 3 ‫גב‬ 62
M.-P.
. Badrie, 2 S.J.M.C., 181
M.P. 176 178
. Bahis, 1 S.J.M.C., 371
M.-P. Bakir, 1 S.J.M.C., 450 ,198 192
,185
M.-P. 213
. Buzu, 3 82
M.P. Dayan, 5 205 ‫דוו‬
M.P. 205
. Dragma, 4 S.J.M.C., 200
M.-P. Elal, 1 S.J.M.C., 42
M.P. ,212 35
. El Gaffri, 1 S.J.M.C., 429
M.P, 4
. Elgnimi, 1 ,.C.M.J.$ 126
M.P. iM
. El Hattib, 1 ,.C.M.J.$ 363
M.-P. El Hawari, 2 S.J.M.C., 108 7
M.-P. 1s
. El Massri, 3 S.J.M.C., 195
M.P. =
. El Musselmani, 5 1
El Naguli, 1 S.J.M.C., 197 ,178 ,179 .196
M.P. 4
. El-Sharif, 1 143
M.-P. ,178 ,185 ,%18
. El Takuri, 2 137
. Enan, 3 S.J.M.C., 44 253
M.-P. Erlin, 5 ,.C.M.J.§ 180 7
M.P. Farres, 2 ,.C.M.J.§ 34
M.-P.
. Gabli, 1 S.J.M.C., 262
M.P. ‫ד‬
. Hadi, 1 S.J.M.C., 543
M.P. ‫פד‬
. Haezni, 5 189
M.P.
. Hagub, 5 10
M.P. ,252 253
. Hamin, 1 54
M.P. Hamza, 1 S.J.M.C., 497 .175 ‫הרב‬

. Hantuli, 3 S.J.M.C., 274

a
. Hassni, 1 S.J.M.C., 99
M.P. + 365 ‫שו‬. ‫ו‬
M.-P. . , 1 5176, 0
M.P. 4
. Tahi, 4 S.J.M.C., ;25 4 S.J.M.C., 99
M.P. itt
. Tlul, 2 169
M.P.
. Jaber, 1 S.J.M.C., 514
M.P. ,179 ,199 me.
. Kassem, 1 402
M.P. 23
. Masri, 1 223
M.P. Musbah, 5 S.J.M.C., 160 a
M.-P. 1 252 198
M.-P. a
. Mustaffa, 1 S.J.M.C., 283
M.P. is
. Nagad, 4 131
M.P. .179 205
. Nasser, 1 272
M.P. Nassra, 2 105 244
M.P. ,189 .206 207
. Nimmer, 4 S.J.M.C., 121
M.-P. 207
. Osta; 4 125
 +

510 TABLE OF CASES

M.P. ‫ל‬. Rahman, 1 S.J.M.C., 20 204

M.P. v. Ramili, 1 331 176
M.P. v. Rnaiem, 1 S.J.M.C., 560 193
M.P. v. Sahur, 5 S.J.M.C., 174 211
M.P. v. Sheinboim, 3 S.J.M.C., 346 ,178 197
M.P., v. Slima, 3 ,.C.M.J.§ 211 194
M.P. v. Suarka, 3 S.J.M.C., 206 ,179 ,194 201
M.P. v. Suarka, 5 S.J.M.C., 96 179
M.P. v. Suliman, 2 S.J.M.C., ;70 4 S.J.M.C., 166 213
M.P. v. Sushan, 1 ,.C.M.J.§ 577 196
M.P. v. Wildman, 1 S.J.M.C., 377 ,178 ,191 204
M.P. v. Zabda, 1 S.J.M.C., 354 178
M.P. v. Zion, 1 [1 78 195
M.P. v. Zuhad, 1 S.J.M.C., 545 ,178 ,184 ,189 ,198 203

DECISIONS OF LOCAL COURTS IN THE ADMINISTERED TERRITORIES

El Jabori v. El Awiwi, 42 I.L.R., 484 ,141 224

Hamuda v. Mar’i, File No. ,2191972 Collection of Judgements, ,196772
ed. G. Al-Haj Mahmoud (issued by the Military Administration), 463 358

ENGLISH DECISIONS

Ali v. Public Prosecutor [1968] 3 All E.R., 488 201

Buron v. Denman )1848( 2 Ex., 167 156
Chung Chi Cheung v. The King [1939] A.C. 160 47
Compania Naviera Vascongendo S.S. Cristina [1938] A.C. 485 47
Ex parte Mwenya [1960] ,.B.10 241 121
Penn vy. Baltimore )1750( 1 Ves. Sen, 444 113
R. v. Pinchey [1906] 2 K.B., 94 121
R. v. Sykes, 8 Gr. App. R. 233 ).A.C.C( 213
Re Ning Yi Chin ,)1939( 56 ,.R.L.1 3 121
The Zamora [1916] 2 A.C., 77 155

U.S. DECISIONS

Baker v. Carr, 369 U.S., 168 156

Ex parte Quirin )1942( 317 U.S., 1 127
Hirabayashi v. United States, 320 U.S., 81 ,156 158
Johnson Eisentraeger, 339 U.S., 3 121
Korematsu v. United States, 323 U.S., 214 16
Massachussets v. Laird, 402 U.S., 886 16
Oetjen v. Central Leather Company, 268 U.S., 297 147
U.S. Military Government vy. Flamme )1950( Annual Digest 415 (case No. )137

149

|
|

‫ו‬
 TABLE OF CASES 1

OTHER DECISIONS

Chin Taik v. Ariff Norsejee Peoply )1948( S.C.R., 454 )amruB( 110
City of Malines v. Society Centrale Pour l’Exploitation Du Gaz )192526(
Annual Digest, Case No. 326 165

Dutch Machines Case )1949( Annual Digest, Case No. 131 138

N.V. Da Bataafsche Petroleam Maatshappij v. War Damage Commission )1956(

23 I.L.R., 810 )eropagniS( 340

Re Flick and others )1947( Annual Digest, 266 154

Société Italiana per il Gaz v. Uniabella )1949( Annual Digest, Case No. 204 138

Tan Tuan v. Lucena Food Control Board )1951( 18 I.L.R., Case No. 181
)senepillihP( 131

Weber v. Credito Italiano )1946( Annual Digest, Case No. 163 138
 INDEX

Accused, Rights of — non-imposition of ,295 303

— confirmation of conviction by Re- — plea of guilty to offence carrying
gional Commander, requirement of death penalty, non-acceptance of
,57 324 204
defence counsel, appointment by the Censorship ,46 ,296 ,312 313
court and public finance of ,57 ,207 Chicago Convention, 1944 ,217 ,218
,208 322 ,229 ,,230 6
defence counsel, right to ,56 ,57 Civil Law 4
,58 ,207 ,208 ,308 ,309 ,321 322 Civilian Settlements in Administered
interpreter, right to ,57 ,209 322 Territories ,152 ,153 ,158 ,290 -313

penal provisions, non-retroactivity of 319

,57 ,151 3 Claims Commission—see: Appeal Com-

mittees
presence of accused at trial, right to
210 Coordinator for the Territories 24

pre-sentencing hearring, right to 214 Courts—see: Courts Martial of IDF

pre-trial detention ,308 309 High Court of Justice of Israel

Local Courts
— prosecution, obligation to prove
prima facie case ,57 212 Military Courts
Municipal Courts
— publicity of trial ,57 ,209 210
Administrative Detention ,306 ,307 308 Religious Courts
Administrative Law Courts Martial of IDF L/6,. ,497 ,198
,200 211
— as basis For judicial review of actions
by military government ,47 169 Criminal Law ,54 ,57 190

Algeria ,19 102

Amnesty International ,57 324 Death Penalty—see: Capital Punishment
Appeal Board Tribunal) Defence Counsel
against Internment ,51 ,307 308 -— applications by 205
Appeal Committees (Claims Commis- — appointment by court ,207 ,208 322
sions) ,57 ,58 ,134 ,136 ,139 143 — contentions by ,175 ,176 ,189 ,195
Appeals Tribunals see: Appeal Board 196
against Internment — right to ,207 ,208 ,308 ,309 ,321
,324 290
British Mandate for Palestine — see: summation by 213
Palestine Mandate/Mandatory Gov- Defence )ycnegremE( Regulations, 1945
ernment ,157 ,158 ,159 ,175 ,176 .12 ,3
,184 ,188 ,204 ,211214 ,291 ,294
Capital Punishment ,295302 ,304 5
— under Defence )ycnegremE( Regul-
ations, 1945 295 East Jerusalem

— imposition of, rules for ,208 215 — entry by, 1967 1

— for murder, abolition of in Admin- — Israeli Law, application to 310
istered Territories ,45 ,52 ,54 215 — Military government in 24

513
 4 INDEX

— Transjordan, entry by, 1948 ,21 310 — local courts in 55

— Transjordanian military government — regional military government for,
in, 19481950 35 establishment of ,22 ,23 ,25 6
Education
— religious courts in ,361 365
— local government authority over ,243 Geneva convention, Fourth, 1949
,248 249
— applicability to specific factual situa-
— military government interference in tion, question of ,32 33
,46 ,312 313
— application of with regard to ques-
Egypt tion of sovereignty ,3742 ,138 ,314
— Gaza Strip, Egyptian occupation of ,316 317
,73 ,7480 83
— civilian population, trial by courts
— Gaza Strip, legal standing of claim of occupying power ,173 ,174 ,183
to ,36 ,37 73 ;189 ,19122 324
— invasion of Israel by, 1948 34
— civilian settlements, provisions re-
— Israel, Armistice Agreement with garding 313316
,34 ,35 ,73 ,74 ,80 ,81 82
— collective punishment, prohibition
— Israel, hostilities with, 1967 21 of 300
— mobilization by, 1967 17
— consistency of Military Govern-
— Nasser, President Gamel Abdul ,18 ment’s enactments with, requirement
19
of 30
— officials of, continued service during
— consistency of Govern-
Israeli Administration ,45 46
ment’s enactments with ,53 133
— Straits of Tiran blockaded by 17
El-Fatah ,17 ,198 213 — courts in occupied territories, legal
qualifications of, Lack of provisions
Evidence, Law of ,57 ,58 ,159 ,211
for ,50 ,51 183
.212 3
— declaratory or constitutive nature
of ,136141 ,143 175
Franco-British convention, 1920 ,86 ,87
— de facto observance of by Military
91 Government ,15 ,42 ,48 ,53 ,133
Franco-Syrian Treaty, 1936 104 :137 ,138 179

— defence counsel, right to ,207 208

Gaza Strip
— deportations, prohibition of ,150 ,151
— “All-Palestine-Government of” 75 ,304 ,305 306

— under British Mandate 6674 — destruction of property necessitated

— Civil. courts .ni. 76 by military operation, permissibility

— creation by Armistice Agreement, 0]

1949 ,34 35
— emigration of residents of occupied
— Defence Regulations in ,176 295 zone, lack of obligation to permit,
— Egyptian claim to ,36 ,37 ,73 ,75 300
79
— extraterritorial jurisdiction of mili-
— Egyptian military occupation of. tary courts, lack of provisions con-
,19481956 19571967 ,35 ,7480 83 cerning 191
— “Gaza constitution” ,74 77 — High Court of Justice jurisdiction
— history of 6165 over Military Government, non-pro-
— Israel, entry by 21 hibition of ,113 114
— Israeli Forces, withdrawal of, 1957 — internment, permissibility of ,306
,80 81 ,307 308
— Israeli Police in Gaza during 1956 — internment, procedure for ,44 45
occupation, jurisdiction over 112
— legislative changes, conditions for
— legal status of ,36 ,6183 7 ,48 ,224 ,225 ,226 298
 INDEX 5

binding as minimum standards even

— liberalization of punitive measures,
non-prohibition of 45 in cases not covered by ,131 132
civilian settlements, provisions re-
— local law, retention of ,224 ,225
,228 321 garding 314

— military courts, degree to which courts in occupied territories, legal

bound by ,178 179 qualifications of, lack of provisions
for 6 03 3
— military courts, rules governing ,31
,56 ,173 ,174 ,183 ,184 ,189 ,191 declaratory of customary
,195 ,201 202 national law ,32 ,136 ,137 ,138 175

— non-enforceability on military gov- High Court of Justice jurisdiction

ernment under municipal law ,135 over Military Government, non-pro-
,136 ,138 168 hibition of 113

— penal provisions, conditions for pro- legislative change, conditions for ,48
mulgation and repeal of ,166 ,174 ,149 ,163166 ,187 ,224 ,225 ,228
175 ,239 240

— prison conditions, rules relating to liberalization of punitive measures,

329 non-prohibition of 45
— property confiscation, prohibition of limited scope of 31
151 local law, retention of ,163166
— religious freedom, obligation to en- ,225 ,228 ,238 ,239 ,240 1
sure 31] military courts, jurisdiction of 191
— return of fleeing residents, lack of military government, direct enforce-
obligation to allow ,299 300 ability under municipal law ,135
— retroactive penal legislation, prohi- ,136 ,142 ,168 169
bition of ,151 ,202 ,203 225 Military Governments’ enactments
— violations of, U.N. investigation of with, requirement of consistency
288 with ,30 ,47 ,48 ,163 ,164 ,167 ,168
Geneva Convention, Third, 1949 ,178 169
198201 prisoner of war status, conditions
Geneva Convention on the Continental for 200
Shelf, 1958 346 property confiscation, prohibition of
Geneva Protocol, 1977 ,41 42 ,151 ,153 ,158 ,161 ,318 319
Golan Heights requirement of military government
— boundaries, demarcation .85101 to defray administrationexpenses 45
103107
state property, rights in ,336343
— entry of Israel into, 1967 22 345350
— civil court for, establishment of 55 High Court of Justice
— Jewish ownership of land in during habeas corpus granted by ,121 ,222
Ottoman period ,101 ,102 103
169
— Jewish population historically ,105 judicial review by ,43 ,47 ,51 ,56
106
,68 ,150154 ,158163 ,167 ,168 ,169
— legal status of 85107 ,281 299
— military value of .98 ,99 104 locus standi before ,43 117
— regional military government for military government, jurisdiction
26
over ,110169 281
— religious courts in ,105 ,354 ,364 military government, power to issue
365
mandamus against 309
proof of substantive right or cause
Habeas Corpus ,121 ,122 169 of action, requirement of 117
Hague Regulations, 1907 relief, granting of ,117 ,119 120
 516 INDEX

— tribunals or courts, power to issue

— war, laws and customs of ,200 201
orders against 122125 202
Holy Places International Red Cross ,32 ,293 ,294
— access to 311 ,329 330
— independent administration of 310 Iraq ,19 ,20 92
— protection of ,49 ,50 309
Human Rights

— in the U.N. ,285294 ,299 ,300 ,302 Japanese-Americans in Second World

,303 ,304 ,306313 ,315 ,316 ,318 War ,156 ,157 307
320331 Jordan

— borders of 88
International Civil Aviation Organiza- — death penalty for voluntary sale of
tion ,217 ,230 ,231 236 land to Jews 52
International Labour Organization .1( — Egypt, defence pact with, 1967 19
L.O.) ,217224 ,226 ,229 236 — Israel, Armistice Agreement with,
International Law 1949 35

— as basis for guidelines of military — Israel, open bridges with 258

government ,27 46 — Israel, opening of hostilities with,
— belligerent administrator, restrictions 1967 21
on ,28 ,126132 ,134 ,135 ,153 ,154 — Israeli Moslem Pilgrims, imposition
,163 ,172 239242 of restrictions on 50
—civil aviation in occupied territories — officials of, continued service during
under ,234 236 Israeli administration ,45 46

— education, rules relating to inter- — Palestine Mandate area, invasion

ference in ,312 313 by, 1948 34

— humanitarian international law 303 — West Bank and East Jerusalem,

— interpretation of terminology, rules annexation of ,35 ,255 ,256 259
for ,340 341
— West Bank, legal standing of claim
— High Court of Justice jurisdiction to ,36 37
over military government under — West Bank and East Jerusalem, mi-
,111 112 litary government over, 19481950

— judicial review in accord with ,30 35

,114 125149 Judea and Samaria
— local elections, duty to hold ,238 — Defence Regulations in ,176 ,295
,239 ,240 ,262 ,266 ,267 ,268 ,271 296
,275 ,276 ,277 ,279 284
— exceptional legal status of ,36 -314
— military administration, right of 43 317
— military courts, rules relatingto ,172 — Israel, entry by 21
,173 191
— Jordan, annexation .35
— military government, application by ,256 ,259 296
,15 ,43 ,48 133
— Jordanian claim to ,36 ,37 317
— military government’s enactments — lawyers strike in 322
with, requirement of consistency ,30
— local government in 237284
,134 148
— multilateral treaties, application to
— multilateral treaties, application to 217236
occupied territories under 217236
— regional military government for,
— municipal law, relation to in Israeli establishment of ,22 ,24 26
legal system ,47 ,111 ,135 ,136 144
— Security Council Resolution ,242
— prisoners of war, rules regarding application to 316
treatment of ,199 200
— Transjordan, entry by, 1948 21
 INDEX 517

— Transjordanian military government — local councils ,237 ,243 ,255 -263

in, 19481950 35 ,268 ,272275 ,280 284
Justiciability ,136 ,152 ,155158 ,161 — markets, power to establish .243
163 248

— mayors ,243 ,248 ,249 ,251 ,254

Kuwait 19 ,261 ,270 284
— mukhtars ,243 ,244 ,248 271
Lausanne, Treaty of, 1923 ,68 ,69 90 — municipal corporations ,237 ,238
League of Nations ,69 ,71 ,72 8793 ,242 ,243 ,245 ,248 ,249 ,250 ,254
Lebanon ,255 ,259 284

— French Mandate over ,87 ,88 89 — planning and building, power over
Legislation by Military Administration, ,245 253
Power of ,2831 ,48 ,52 ,53 ,128 — roads, power to build 243
,149 ,163167 ,187 ,224 ,225 ,228 — taxation 25]
,239 240 — Urban Education Tax Commission
,248 249
— Local Courts ,52 ,55 ,58 281
— Chief Justice 55 — voting franchise ,260 ,263 ,274 -276
,282 4
— competence to review enactments of
the military government, lack of — water, power over ,245 ,246 247
,141 ,142 143 — Water Authority ,245 246
MacMahon-Hussein correspondence,
— court of Appeal in Ramallah ,55
,141 ,142 ,320 ,321 358 19151916 66

— court of Appeal, powers of Jor-

danian High Court of Justice vested Military Advocate General’s Corps
in ,55 358 — instructions for safeguarding rule of
law, issuance of 43
— Israeli court system, complete sepa-
ration from 123 — Manual for Military Advocate
Military Government ,25 27
— local offences, jurisdiction over 188
— Magistrates courts ,55 ,253 ,254 — Military Advocate General .25 45
358 ,50 ,180 181
Local Government — Military Advocates’ Platoom ‫המשא‬
izational structure of 59
— abattoirs, power to establish ,243
248 — Military Government Gia
— budget 252 quarters, attachment of Gi Gi
,24 5
— business licensing, powre over 245
— bye-laws ,249 251 — reserve officers of. male a GT
— chambers of commerce ,237 ,238 court judges 182
,240 ,255259 ,266272 284 — special standing ‫א‬
Military Commander af
— days of rest, power to declare 249
Territories 23. 486 ‫אש‬
— District Commissioner ,243 ,244 ,259
,266 ,272 273 116, 118. 120. ‫ששח‬
132. 134, 135 ‫ואו‬
— District Education Office ,248 249
154. 157. 155 ‫אא‬ ‫א‬.
— education, authority over ,243 ,248
249 165, 167,
177. %17. ‫שש‬. ‫תחאב‬ 258,
— elections to local bodies ,238243
,259266 ,268 ,269 272283 274. ‫אשד‬ ‫אשר‬ 22,

— electricity, power over 247 361

— fire brigades 245 Military

— health and sanitation, power over — Gee trial

245 238
 518 INDEX

— Appeal Court, absence of ,183 ,184 — effective control as basis for au-
,185 324 thority ,14 ,28 128
— burden of proof in criminal cases — enactments of ,53 ,54 ,58 125128
22
— establishment of 13
— charge sheet ,208 209 — High Court of Justice jurisdiction
—— competence of panel to try offence over 110169
190
— justiciability of actions of ,152 155
—- competence to review enactments of — legal advisors to ,25 ,26 ,27 ,208
military government 143 322
— establishment of ,56 ,176 5 — legal power of, assumption of ,13
— extra-judicial confessions, admissabi- 127
lity and sufficiency of .205 ,206
— local courts, lack of jurisdiction
,211 3 over military government 109
— under Fourth Geneva Convention — local courts, non-interference with
,113 ,114 ,183 ,184 195 5

— High Court of justice jurisdiction — local legal system, interference with

over ,122 123 ,320 321

— International Law, reliance on in — municipal government, relations with

decisions of ,175 ,178 ,179 192 ,238 ,243253 ,257 ,258 ,259 262265
— judges, criteria for ,57 177179 — private land, seizure of ,134 ,152
,180 ,182 ,183 323 153 ,158 ,161 ,318 ,319 320
— judges, independence of ,181 ,182 — provisional nature of ,126 127
183
— public order and safety, maintenance
— judges, removal of 181 of ,43 ,128 163166

— judicial notice ,212 213 — regional military governments, estab-

— jurisdiction of ,172 ,173 ,174 -186 lishment of ,22 23
,402 ,208 32d — social legislation by 163167
— plea of accused ,204 ,205 ,209 211 — welfare of the inhabitants, duty to
— pre-trial detention, power to order promote 54
309 Military Prosecutor ,175 ,205 ,207 ,208
2174 3
— proceedings, publicity of ,204 210
Minister of Defence ,24 ,111 ,116 ,159
— proceedings, record of 209
,160 307
— proceedings, translation of ,209 2
Mixed Armistice Commission -learsI(
— procedure and evidence in, rules of
,57 ,58 ,177 ,179 ,188 ,189 203215 Syria) ,94 ,96 ,100 106
Morocco ,19 98
— sentencing ,214 215
Movement, Freedom of ,50 ,58 320
— uniformity of decisions, lack of ,185
186 Multilateral Conventions
Military Government — see also: Mi- — application to administered territo-
litary Commander of Administered ties 217236
Territories Regional Commander Municipal Courts

— Area Commander 307 — establishment of ,253

— chambers of commerce, relations — fines, imposition of 254
with 268271 — procedure and evidence in ,253 254
— commanding officer, unlimited pow-
Natural Justice, principles of ,49 51
er of ,109 ,110 ,125 126
— debts of former authorities, non- Oil
responsibility for 46
— commercial leases, right of bellige-
— District Commander 23 rent occupier to grant ,344 ,345
— education, interference in ,312 313 ,346 ,349 350
 INDEX 519

— appellate tribunals .359 360

— existing oil leases, respect of ,349
,350 351 — autonomy of ,357 .358 366
— existing oil wells, right of belligerent — in Gaza Strip ,354 ,355 365
occupier to utilize ,336339 ,344 350 ‫או‬
las
— on Golan Heights, absence of
,364 365
— limits to exploitation by belligerent
occupier ,337 ,338 ,347 ,348 350 — judgements, execution of 17
— as movable property of military — jurisdiction of ,358 339
value ,341 ,342 ,343 350 — maintenance actions 362 75
— new oil wells, right of belligerent — military government ei 361
occupier to exploit ,338 ,339 ,340 — Special Tribunal ,358 339
,344 350 — Christian Religious Comms
— Organization and Striking, Right of — Jerusalem, questions af
,220 296 raised by sitting m

— in Judea and 756 35

357
Palestine Liberation Organization .P(
L.O.) — see also: El-Fatah — judges, payment ef

— El-Fatah as part of 17 — Druze Religious am

Heights
— establishment of 16
— statements by, 1967 19 — authority. ai ‫אא‬

— terrorism by 17 — establishment of

— as unlawful association 213 — matters with

— West Bank elections, interference in — Moslem Religions 6

,283 284 — authority, sommor aff Wit
Palestine Mandate/Mandatory Govern- — court
of 2 Will Mh
—in Gz Sap ‫הל‬
ment ,34 ,6674 ,78 ,79 ,6690 ,175
,188 ,253259 ,295 316 — judgements, execution aff Wal, .362
Press, Freedom of 58 366

Prisoners of war — jurisdicion of 2 ‫א"ל‬

— Art. 4 of the Third Geneva Con- — aff Sie

vention, meaning of ,178 198201 — .363
364
— military courts, jurisdiction over
198201 — Moslem Lam, 310
Prison conditions ,329 330 — Qadis, aff
Public order and safety Religious aif 29 .50
,58 .293 53
— interpretation of mandate to ensure
,164 ,165 ,167 ,276 277 Rule of Law

— legislation by military government — af 0

to ensure ,53 ,128 ,149 ,163167 — gov-
,187193 ,240 ,241 ,262 267 ernment ‫פה‬

— military administration, duty to en- — goer! bv .3

38
sure ,28 ,130 237
— military government, restoration and
maintenance by ,43 303
--- see mie pag
Regional commander ,23 ,53 ,57 ,171
am
,179 ,180 ,183187 ,192195 ,197 ,198 --- ling. 457 ‫כ‬
,202 ,205208 ,211 ,213 ,214 ,215 ,244 —seme:
,254 ,257 ,267 ,273 ,275 ,2
4
Religious Courts Som
520 INDEX

Sinai Peninsula
— value added tax 318
— Central and Southern Sinai, estab- Torture, Allegations of ,325 ,326 327
lishment of Regional Military Gov-
ernment for 22
United Nations
— Gaza Strip and Northern Sinai, es-
tablishment of Regional Military — General Assembly resolution on Is-
raeli exploitation of Sinai oil 336
Government for ,22 ,23 ,25 26
— Human rights in ,285294 ,299 ,300
— Israel, entry by, 1967 21
,302 ,303 ,304 ,306313 ,315 ,316
— oil resources in, development of
,318 320331
335351
Six Day War, 1967 — Israel-Syrian border, position regard-
ing ,93 98
— Arab war aims in 20
— Israeli military government, criticism
— Cease-Fire ending 22
of 15
— commencement of 21
— Palestine, plans for 73
— Egypt, mobilization by 17
— Palestine, partition of, 1947 34
— Israel, mobilization by 20
Secretary General ,17 ,18 22
— occupation of territories during 13
,289 ,290 ,291 ,335 336
— roots of 1620
— Security Council, denunciation of
— Sinai and Gaza Strip, entry by Is-
Transjordanian invasion, 1948 36
rael 21
— Security Council Resolution 242 316
— Straits of Tiran, Egyptian blockade
of ,18 ,19 21 — U.N. Emergency Force ).F.E.N.U(
I, role in Gaza Strip ,81 82
Sovereignty ,14 ,28 ,37 ,71 ,72 ,73 ,82
,94 ,95 ,99 ,126129 ,132 ,133 ,138 — U.N. Emergency Force ).F.E.N.U(
I, withdrawal of, 1967 ,18 21
,139 |,146 ,147 ,229233 ,23517
,336 ,345 ,346 360 — UN. Educational, Scientific and Cul-
tural Organization ,).O.C.S.E.N.U(
Soviet Union 17
supervision of school-book-censor-
Straits of Tiran
ship ,46 313
— blockade of, 1967 ,18 ,19 21
U.N. Human Rights Commission —285
Strike, Right to — see: Organization
,288 ,290 330
and Striking, Right of
Sykes-Picot Agreement, 1916 ,66 ,67 ,85 — U.N. Special Committee on Israeli
Practices ,285 ,289 ,290 ,291 ,293
86
,294 ,299 ,300 ,302 ,304 ,306309
Syria
,311 ,312 ,313 ,315 ,316 ,318 320330
— Baath Party 17
— U.N. Special Working Group on Is-
— foreigners, property rights of 103
raeli practices ).G.W.S( ,287 ,288
— French Mandate over ,8690 ,92
104 ,290 ,293 ,303 ,304 ,310 330

— Israel, Armistice Agreement with

— U.N. Truce Supervisors and Obser-
,9396 98 vers ,17 ,94 ,96 100

— Israel, border with ,85101 103107

— Israel, hostilities with, 1967 ,21 22 Vienna Convention on the Law of
— Israel, Syrian invasion of, 1948 93 Treaties, 1969 ,218 ,219 234
— revolutions in 17
— troop concentrations by, 1967 20
Wakf ,259 262
Taxation War Crimes ,136 ,138 ,199 202
West Bank — see: Judea and Samaria
— by local government 251
486 APPENDICES

the Commander of the Region has reasonable grounds a

believe that for reasons of the security of the Region or a@&
public security the detainee must continue to be held @
detention, he may by order under his hand from time
time direct an extension of the original order for a peri
not exceeding six months. The extending order shall in
respects be treated as an original order.
)c( Where a Military Commander who is the Military Com
mander of a District has reasonable grounds to believe th:
conditions exist in which the Commander of the Regie
might order the detention of a person under subsection (a
he may by order under his hand direct that the
detained for a period not exceeding 96 hours, which sh:
not be extensible by order of a Military Commander.
)d( An order under this section may be made in the absence ¢
the person to whose detention it applies.

JUDICIAL REVIEW OF DETENTION ORDER |

.B87 )a( A person detained under an order of the Commander a

the Region in accordance with this Chapter shall within §
hours of his detention, and if he was held in detention befor
that under an order of Military Commander who is Ce
mander of a District, within 96 hours of his detention unde
such order, be brought before a legally qualified judge
the meaning of section 3 )c( )1( of the Order, who may ce
firm or set aside the detention order or reduce the
of detention. Where the detainee is not brought before
legally qualified judge and the hearings before him are ma
commenced 96 hours as aforesaid, the detainee shall
released unless some other ground exists for his
under any law or security enactment. |
(b The legally qualified judge shall set aside a detention
if the reasons for which it was made are shown not to &

reasons material to ]0 ‫חס‬

security or if it was made not in good faith or for irreleve
considerations.