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The Practice and Case Law of Israel in Matters Related to International Law1

Published online by Cambridge University Press:  04 July 2014

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Extract

I. Cultural Property: Protection in Armed Conflict

The Return of Antiquities from Israel to Egypt

Halil Iscander Shahin Candu v. The Minister of Defence.

Muhamad Hussein Suliman Shachrur v. The Military Commander of Judea and Samaria.

On 21 January, 1993 an Egyptian archeological delegation visiting Israel and the Israeli Antiquities Authority signed an agreement whereby all archeological findings taken from the Sinai after 1967 (while Israel controlled the area) would be returned to Egypt within two years and no later than 31 December, 1994. It was agreed that artifacts which had already been processed and documented would be returned to Egypt within two months. The first shipment of these antiquities was transferred to Egypt on 29 March, 1993.

Type
International Law
Information
Israel Law Review , Volume 27 , Issue 3 , Summer 1993 , pp. 515 - 528
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

2 (1989) 43(ii) P.D. 738.

3 (1990) 44(ii) P.D. 233.

4 Israel occupied the Sinai peninsula in June 1967 during the Six Day War and retained control over this area until the withdrawal in accordance with the Peace Treaty between Israel and Egypt of March 1979; 1138 U.N.T.S. 72.

5 See Arts. 27 and 56 of the Hague Regulations Respecting the Laws and Customs of War on Land, 1907, (1908) 2 Am. J. Int'l L. supp. 90CrossRefGoogle Scholar; Art. 5 of the Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War, 1907 (1908) 2 Am. J. Int'l L. supp. 146CrossRefGoogle Scholar; the Pan American Union Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, 1935, 249 L.N.T.S. 215; Art. 53 of Protocol I Additional to the 1949 Geneva Conventions, 1977, and Art. 16 of Protocol II, 1977, (1977) 16 I.L.M. 1391.

6 249 U.N.T.S. 215.

7 Israel ratified the Convention on 3 October 1957 and acceded to the Protocol on 1 April 1958; Egypt ratified both the Convention and the Protocol on 17 August 1955.

8 Art. 18(2) of the Convention provides as follows:

“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”. Supra n. 6.

9 Art. 4(3) of the Convention, supra n. 6.

10 Art. 4(3) of the Convention, ibid. Similarly, Art. 56 of the 1907 Hague Regulations provided that: “All seizure of, destruction or wilful damage done to…, historic monuments, … is forbidden, and should be made the subject of legal proceedings”. Supra n. 5.

11 The definition of “cultural property” in Art. 1 of the Convention includes “… books and other objects of artistic, historical or archeological interest…” (emphasis added); supra n. 6.

12 The Convention, supra n. 6.

13 Supra n. 2.

14 Ibid., at 740-741.

15 Ibid., at 742.

16 Under Israeli law there is a presumption of compatibility between its statutes and international law; see on this doctrine in Israeli law: Lapidoth, R., “International Law Within the Israel Legal System”, (1990) 24 Is. L.R. 451Google Scholar.

17 Supra n. 3.

18 Ibid., at 234.

19 75 U.N.T.S. 287. See in Pictet, J. S., ed., The Geneva Conventions of 12 August 1949 - Commentary (1958) vol. IV, p. 334, at 336Google Scholar. The first paragraph of Art. 64 of the Fourth Geneva Convention provides as follows: “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offenses covered by the said laws”. (The words emphasized were cited in the judgment).

19a Ha'aretz, November 12, 1993, p. A-4.

19b Segal, Z., “Artifacts May Not be Removed from Occupied Territories”, Ha'aretz, November 15, 1993, p. A–5Google Scholar.

19c Letter by Prof. Aaron Kempinski to the Antiquities Authority, dated November 7, 1993 (translated from Hebrew).

19d Ha'aretz, November 15, 1993, p. A-5.

19e Ibid., November 17, 1993, p. A-4.

20 (1987) 26 I.L.M. 1529.

21 (1987) 26 I.L.M. 1550.

22 (1991) 30 I.L.M. 537.

23 See on the problem and the various applicable instruments, Kiss, A. and Shelton, D., International Environmental Law (N.Y., 1991) 339Google Scholar; Birnie, P. W. and Boyle, Alan, International Law and the Environment (Oxford, 1992) 404Google Scholar; Szell, P., “Ozone Layer and Climate Change”, in Lang, W., Neuhold, H. and Zemanek, K., eds., Environmental Protection and International Law (London, 1991) 167Google Scholar; Brown-Weiss, Edith, “International Environmental Law: Contemporary Issues and the Emergence of a New World Order”, (1993) 81 Georgetown L.R. 675–710Google Scholar.

24 Vienna Convention, supra n. 20, Arts. 2(2)(a) and 5.

25 Ibid., Art. 2 (2)(a) and Art. 3.

26 Ibid., Art. 6.

27 Ibid., Art. 7.

28 Montreal Protocol, supra n. 21, Art. 2 and Annex I.

29 Ibid., Art. 2(1) and Annex I.

30 Ibid., Art. 5.

31 Ibid., Art. 4.

32 Ha'aretz, 11 May 1992, p. B-3.

33 London Agreement, supra n. 22, Arts. A. and B.

34 Ibid., Art. 2E.

35 Ibid., Art. 2D.

36 Ibid., Art. 10.

37 Ibid., Art. 10(6).

38 K.T. Custom Tariffs, Sale Tax and Levies, No. 888, (December 20, 1992) 256 et seq.

39 (1993) 32 I.L.M. 874.

40 In accordance with Art. 3 of the Agreement, it shall enter into force on 1 January 1994, provided that at least 20 instruments of ratification, acceptance or approval, have been deposited. In the event that this condition has not been fulfilled by that date, the Agreement shall enter into force on the ninetieth day following the date on which it has been fulfilled; ibid.

41 Ibid., amendments to Art. 2(9)(a)(i), Art. 2G and Annex E.

42 1992 (iv) Pesakim 40.

43 (1987) 41(i) P.D. 589.

44 137 L.N.T.S. 11.

45 34 L.S.I. 225.

46 29 L.S.I. 311.

47 Ibid.

48 Carriage by Air Law, supra n. 45.

49 El-Al v. Gat, supra n. 42, at 43.

50 Warsaw Convention, supra n. 44.

51 15 Aviation Cases 17.829, as cited on p. 44 of the judgment, supra n. 42.

52 14 Aviation Cases 17.612, as cited on p. 44 of the judgment, ibid.

53 Ibid., at 44.

54 Ibid.

55 Supra n. 43.

56 12 L.S.I. 129.

57 These exceptions relate to minority (sec. 10), mental illness (sec. 11), guardian-ward relationship (sec. 12), absence from Israel (sec. 14) etc.; ibid.

58 Taichner v. Air France, supra n. 43, at 625 and 641. According to the minority opinion (Barak J.), sec. 14 of the Carriage by Air Law is an integral part of the Israeli legal system and questions which were not resolved by it should be answered in accordance with the general law of prescription prevailing in Israel. He added that the Warsaw Convention was not meant to exclude the applicability of municipal prescription laws, and it does not negate the commencement of the limitation period in accordance with the Israeli Prescription Law; see at 598-620.

59 Ibid., at 630.

60 Ibid., at 628.

61 Ibid., at 634.

62 See also the case of Pnina Turna v. Daniel Charles Meshullam (as yet unpublished, 1992), as surveyed in Cohen, B., “The Practice of Israel in Matters Related to International Law”, (1992) 26 Is. L.R. 559, at 569–571Google Scholar.

63 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division and by Ms. Annie Dadon of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.

64 The agreement entered into force one month after its signing.