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In July 1967, one month after Israel's occupation of the West Bank, Gaza
Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate
General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to
discuss the Israel Defense Forces (IDF)’s duties in the areas under its
control. Col. Shamgar had led the MAG Corps in the preparations in the event
that a future war would find the army occupying beyond Israel's borders.
Col. Shamgar began his presentation by stating:
In terms of the legal background, our point of departure is that we have
to respect both the fundamental pursuits of the State of Israel as its
military forces begin to control an area that has been liberated by the
IDF, and the rules of public international law that apply to the actions
of any military in control of an area that was, until its entry, subject
to the sovereignty of a foreign political entity.
The guiding rules in this realm are the rules of public international
law, which are reflected in The Hague Regulations of 1907 … and
in the … Fourth Geneva Convention on the Protection of Civilians
in Times of War.
Theodor Meron's editorial
comment revisits the question of the legality of settlements. I will
try to offer an additional perspective which looks at the underlying values of
the laws of occupation and how these impact the legal analysis of settlement
activity in the Israeli context.
One of the unique features of Israel's legal, military, and political
control over the Occupied Palestinian Territories (OPT) has been the review by the Supreme
Court of Israel of the actions and decisions of the authorities in
those territories. Sitting as a High Court of Justice that has the competence to
review the actions of all persons exercising public functions under law, the
Court has entertained thousands of petitions relating to the legality of such
varied actions as house demolitions, deportations, land requisition, entry
permits, and establishment of settlements. There can be little doubt that the
very existence of judicial review has had a restraining effect on the
authorities. While the Court has not ruled against the government that often,
and has provided legitimization for acts of dubious legality, such as punitive
house demolitions and deportations, it has handed down some important
rulings on questions of principle. Furthermore, in the shadow of the
Court, many petitions have been settled without a court ruling, allowing for a
full or partial remedy for the Palestinian petitioner.
The fiftieth anniversary of Israel's occupation of certain Arab-inhabited
territories following its victory in the June 1967 war is a good time to reflect
on the question of how international law addresses resistance to military
occupation. This issue—and its counterpart, the rights of an occupying
power vis-à-vis resistance—has arisen repeatedly in connection
with this occupation. It has been at the center of polemical debates involving
Israel, neighboring states, and the Palestine Liberation Organization, in a wide
range of international fora including the United Nations. It has also arisen in
numerous other conflicts in the past half-century, including in Namibia before
it achieved independence in 1990, and in Iraq following the 2003 U.S.-led
intervention. The legal focus of this contribution is on the jus in
bello. Certain jus ad bellum and human rights
issues raised by occupation and resistance that inevitably intrude at certain
points will be mentioned in passing.
A raft of legislative proposals introduced in the Knesset over the last several
years has raised the specter of Israeli annexation of additional West Bank
bill would provide for nearly automatic application of new Knesset
legislation to Israelis residing in the West Bank. A
second would authorize the expropriation under certain circumstances
of privately-owned Palestinian land for incorporation into Israeli settlements,
extending the Knesset's reach to the regulation of West Bank land use by
non-Israelis. A third, entitled the “Maale Adumim
Annexation Law,” provides for the full application of Israeli
law in Israel's largest West Bank settlement, as well as in an adjacent
twelve square kilometer area called the “E1 Zone,” one of the few
remaining land reserves available for the development of Palestinian East
Interest in the criminal aspects of the Israeli settlement project in the West
Bank is hardly new; it informed the drafting of Additional Protocol I (AP I) and
of the Statute of
the International Criminal Court (ICC), and motivated Israel's
rejection of both instruments. The 2009 Palestinian attempt to establish ICCjurisdictionpromptedextensivescholarlydebate
on the preconditions for jurisdiction and on its territorial and temporal
aspects, as well as on specific admissibility questions, primarily gravity.
(Complementarity is not an issue with regard to the establishment of West Bank
settlements, since Israeli law and jurisprudence do not prohibit it, although
they regulate some aspects related thereto).