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Constitutional Mindset: The Interrelations between Constitutional Law and International Law in the Extraterritorial Application of Human Rights

Published online by Cambridge University Press:  01 June 2017

Smadar Ben-Natan*
PhD Candidate, Zvi Meitar Center for Advanced Legal studies, Tel-Aviv University; Visiting Scholar, Center for the Study of Law and Society, University of California – Berkeley;
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Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.

The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.

All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

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1 HCJ 7862/04 Abu Daher v Commander of IDF Forces in Judea and Samaria 2005 PD 59(5), para 8, Israeli constitutional law was applied alongside international humanitarian law.

2 HCJ 1661/05 Gaza Coast Regional Council v The Knesset 2005 PD 59(2), [79]–[80]. By ‘OPT’ I refer, throughout this article, to the West Bank and the Gaza Strip. Some of the decisions refer only to one of those regions. Israel withdrew its forces from the Gaza Strip in 2005 and subsequently maintains that it is no longer occupied territory. However Israel continues to maintain control over it from the outside, controlling entries and departures, as well as the population registry and other vital infrastructure such as electricity and the flow of commodities. The controversy over the status of the Gaza Strip does not directly concern us here, as most of the decisions discussed here preceded the 2005 withdrawal. It is obviously not disputed that Gaza is outside Israeli sovereign territory.

3 Hernandez v Mesa 785 F 3d 117 (5th cir 2015) cert granted 2016.

4 Adam Liptak, ‘An Agent Shot a Boy Across the US Border: Can His Parents Sue?’, The New York Times, 17 October 2016.

5 Boumediene v Bush 128 US 2229 (Sup Ct 2008); Al Maqaleh v Gates 605 F 3rd 84 (99 DC Circuit 2010).

6 ECtHR, Al-Skeini v United Kingdom, App No 55721/07, 7 July 2011.

7 See generally Milanovic, Marko, Extraterritorial Application of Human Rights Treaties (Oxford University Press 2011)Google Scholar; Neuman, Gerald, ‘Understanding Global Due Process’ (2009) 23 Georgetown Immigration Law Journal 365 Google Scholar; Rivlin, Galia, ‘Constitutions Beyond Borders: The Overlooked Practical Aspects of the Extraterritorial Question’ (2012) 30 Boston University International Law Journal 135 Google Scholar.

8 Milanovic (n 7); Costa, Karen da, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff 2012)Google Scholar; Ben-Naftali, Orna and Shany, Yuval, ‘Living in Denial: The Application of Human Rights in the Occupied Palestinian Territories’ (2003) 37 Israel Law Review 17 Google Scholar.

9 Keitner, Chimène I, ‘Rights Beyond Borders’ (2011) 36 Yale Journal of International Law 55 Google Scholar; Rivlin (n 7); Martinez, Jenny S, ‘New Territorialism and Old Territorialism’ (2014) 99 Cornell Law Review 1387 Google Scholar.

10 Gerald Neuman ((n 7) 382–98) discusses the extraterritorial jurisprudence of the US Supreme Court, providing some comparative analysis with European states and suggesting a method for combining international law with the US Constitution; Cleveland, Sarah H, ‘Our International Constitution’ (2006) 31 Yale Journal of International Law 1 Google Scholar, 33–35, 44–49, discusses more broadly the relationship between constitutional law and international law in constitutional interpretation, and dedicates some attention to territorial questions. Both of them concentrate on the US.

11 For a comparative analysis of domestic jurisprudence on the application of domestic law see Keitner (n 9).

12 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 64; Jean S Pictet, Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (International Committee of the Red Cross 1958) 334–35; Sassòli, Marco, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16(4) European Journal of International Law 661, 677Google Scholar; Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 49Google Scholar.

13 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 (Wall); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168.

14 With some exceptions to this presumption. For the presumption of territoriality, or against extraterritoriality, see Kiobel v Royal Dutch Petroleum Co 133 S Ct 1659 (2013); HCJ 2612/94 Sha'ar v State of Israel 1994 PD 48(3) 675, 680; Martinez (n 9).

15 Koskenniemi, Martti, ‘Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization’ (2007) 8(1) Theoretical Inquiries in Law 9, 19–22Google Scholar; Keitner (n 9) 110–11 also finds that domestic courts are reluctant to leave ‘law-free zones’.

16 Koskenniemi, ibid 18.

17 Neuman, Gerald L, ‘Whose Constitution?’ (1991) 100 Yale Law Journal 909 CrossRefGoogle Scholar; Milanovic (n 7).

18 Neuman (n 7) and Milanovic (n 7) each offer a balanced approach, which answers this question and does not strictly comply with any of the three approaches. Neuman offers the global due process approach, which complements the universal approach with a judicial discretion not to apply rights when their application would be ‘impracticable and anomalous’; this resembles the approach taken in Boumediene v Bush (n 5). Milanovic offers to take a territorial approach but to limit the scope of obligations to those of a negative nature (not to violate) and not to positive obligations (to actively grant rights to the whole population). This approach generally resonates with the ECtHR approach in Al-Skeini v United Kingdom (n 6) that rights could be ‘divided and tailored’.

19 See Neuman (n 7) 383–84 (Germany and France); Milanovic (n 7) 65 (Canada); Keitner (n 9) 81–91 (Canada).

20 Another question that occasionally arises is the potential conflict between the legal obligations of the extraterritorial power and the legal system of the territorial state. However, this question seems less fundamental than the others since none of the courts or scholars suggest a full extraterritorial application of law that conflicts with local law. Enforcement of such obligations is left with the courts of the extraterritorial state.

21 Broadly speaking, there are two conceptual approaches to relations between these different systems of law. The constitutional approach creates a clear hierarchy of norms on the global level, analogous to an autonomous state legal system. In the pluralistic approach, multiple legal sources, without a clear hierarchy, maintain relations of dialogue and mutual influence: Cohen, Jean L, ‘Constitutionalism Beyond the State: Myth or Necessity? (A Pluralist Approach)’ (2011) 2(1) Humanity 127 Google Scholar.

22 For examples of different formulations of the relations between international law and constitutional law see, on the US, Koh, Harold Hongju, ‘International Law as Part of Our Law’ (2004) 98 American Journal of International Law 43 Google Scholar; Neuman, Gerald L, ‘The Uses of International Law in Constitutional Interpretation’ (2004) 98 American Journal of International Law 82 Google Scholar; Cleveland (n 10). On the UK, Canada and the US, see Keitner (n 9). On Israel, see Barak-Erez, Daphne, ‘The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue’ (2004) 2 International Journal of Constitutional Law 611 Google Scholar; Cohen, Amichai, ‘Unequal Partnership? The Internalization of International Law into Israeli Law by the Israeli Supreme Court: The Case of the Territories’ (2007) 6 Mozney Mishpat [Netanya Academic College Law Review] 157 Google Scholar (in Hebrew).

23 Slaughter, Anne-Marie, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government and Opposition 159 Google Scholar; Benvenisti, Eyal, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241 CrossRefGoogle Scholar; Cohen, ibid.

24 Koh, Harold Hongju, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181 Google Scholar.

25 Cohen (n 22).

26 Slaughter (n 23); Benvenisti (n 23); Cohen (n 22).

27 Sturley, Michael F, ‘International Uniform Laws in National Courts: The Influence of Domestic Law in Conflicts of Interpretation’ (1987) 27 Virginia Journal of International Law 729 Google Scholar.

28 Koh (n 24).

29 Koskenniemi (n 15).

30 Cohen (n 22).

31 The legal system in Israel has also encountered cases of extrajudicial extraditions or abductions, such as in the cases of Adolph Eichmann, Mordechai Vanunu, Sheikh Obeid and others, but most of the legal debate has not been devoted to this point.

32 Nuclear Weapons (n 13); Wall (n 13); Congo v Uganda (n 13) [216]–[219]; Ben-Naftali and Shany (n 8).

33 For a discussion of the question of mutual applicability and relations of IHRL and IHL see, for example, Droege, Cordula, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’ (2007) 40 Israel Law Review 310 Google Scholar; Gross, Aeyal M, ‘Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?’ (2007) 18 European Journal of International Law 1 Google Scholar; Modirzadeh, Naz K, ‘The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’ (2010) 86 US Naval War College International Law Studies (Blue Book Series) 349 Google Scholar; Ben-Naftali, Orna, International Humanitarian Law and International Human Rights Law (Oxford University Press 2011)Google Scholar; Lubell, Noam, ‘Human Rights Obligations in Military Occupations’ (2012) 94(885) International Review of the Red Cross 317 Google Scholar; Gross, Aeyal, ‘The Righting of the Law of Occupation’ in Bhuta, Nehal (ed), The Frontiers of Human Rights: Extraterritoriality and Its Challenges (Oxford University Press 2016) 21Google Scholar.

34 A great body of literature examines this question in general and in different contexts. See Sturley (n 27); Keitner (n 9); as well as references in n 22.

35 Barak, Aharon, ‘The Constitutional Revolution: Protected Basic Rights’ (1992) 1 Mishpat Umimshal [Law and Government] 9 Google Scholar (in Hebrew); Gross, Aeyal M, ‘The Politics of Rights in Israeli Constitutional Law’ (1998) 3(2) Israel Studies 80 Google Scholar.

36 For discussion on this point see Ronen, Yaël, ‘Applicability of Basic Law: Human Dignity and Freedom in the West Bank’ (2013) 46 Israel Law Review 135 CrossRefGoogle Scholar.

37 For some of this criticism see Shamir, Ronen, ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice’ (1990) 24 Law & Society Review 781 Google Scholar; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (SUNY Series on Israeli Studies 2002) 1929 Google Scholar; Gross (n 33); Krebs, Shiri, ‘Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court’ (2012) 45 Vanderbilt Journal of Transnational Law 639 Google Scholar.

38 For a description of the Canadian and German doctrines see Neuman (n 7) 383–84 (Germany); Milanovic (n 7) 62–65 (Canada); Keitner (n 9) 81–91 (Canada). Keitner's article is a comparative analysis of extraterritorial application of constitutional law in three jurisdictions: the US, Canada and the UK, demonstrating among other things the differences between them and the role given to international law in both Canada and the UK (Keitner (n 9) 85–91, 96–97) as well as arguing for the relevance of their comparative analysis, although only the UK is subject to the regional system of the ECtHR.

39 Letsas, George, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705 Google Scholar.

40 European Convention on Human Rights and Fundamental Freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR), art 46; Dembour, Marie-Bénédicte, Who Believes in Human Rights? Reflections on the European Convention (Cambridge University Press 2006) 2225 CrossRefGoogle Scholar.

41 American Convention on Human Rights, Pact of San Jose, Costa Rica (entered into force 18 July 1978) 1144 UNTS 123 (ACHR).

42 According to art 62 ACHR, recognition of the authority of the Inter-American Court of Human Rights is conditional upon a declaration by the state, and the US has not recognised the Court's authority: Organization of American States, Inter-American Commission on Human Rights, ‘Signatures and Current Status of Ratifications’, Basic Documents Pertaining to Human Rights in the Inter-American System (2007) 51 Google Scholar,

43 Boumediene v Bush (n 5). In this case the Court stated that the constitutional right of due process of law applies, under certain conditions, outside the US and to non-citizens, referring to Guantánamo Bay detainees, but see Al Maqaleh v Gates (n 5), in which it was decided that detainees held by the US in Bagram prison in Afghanistan are not entitled to the same rights.

44 ECtHR, Loizidou v Turkey, App no 15318/89, Merits, 18 December 1996; ECtHR, Cyprus v Turkey, App no 25781/94, 10 May 2001; ECtHR, Issa v Turkey, App no 31821/96, 16 November 2004; ECtHR, Al Saadoon v United Kingdom, App no 61498/08, 2 March 2010; Al-Skeini v United Kingdom (n 6).

45 Burley, Anne-Marrie and Mattli, Walter, ‘Europe Before the Court: A Political Theory of Legal Integration’ (1993) 47 International Organization 41 Google Scholar.

46 Such an approach was implied by the ECtHR in Banković v Belgium, App no 52207/99, 12 December 2001, para 80, stating that the Convention was intended to apply within the espace juridique of Europe.

47 Like the courts that have addressed this, I use this term to refer primarily to the following conventions: the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), the International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 993 UNTS 3 (ICESCR), and the Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3 (CRC). As a rule, the same principles apply to other conventions, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85 (CAT), but they raise other specific issues pertaining to the definition of their application.

48 Nuclear Weapons (n 13).

49 Wall (n 13); Congo v Uganda (n 13).

50 ECHR (n 40) art 1.

51 Loizidou v Turkey (n 44); Cyprus v Turkey (n 44).

52 Banković v Belgium (n 46).

53 Issa v Turkey (n 44); Al Saadoon v United Kingdom (n 44).

54 Issa v Turkey (n 44) para 71.

55 Al-Skeini v United Kingdom (n 6).

56 Öcalan v Turkey, App no 46221/99, 12 May 2005; Issa v Turkey (n 44); Al Saadoon v United Kingdom (n 44).

57 Foster v Neilson 27 US 253 (1829); United States v Percheman 32 US 51 (1832); Vázquez, Carlos Manuel, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 American Journal of International Law 695 Google Scholar.

58 See, eg, US Reservations, Declarations and Understandings, International Covenant on Civil and Political Rights, 138 Cong Rec S4781-01, 2 April 1992; Medellin v Texas 552 US 491 (Sup Ct 2008).

59 Harold Hongju Koh, then legal adviser to the US State Department, described in his memos from 2010 both the traditional US position that it is not bound by human rights conventions extraterritorially, and his own position to the contrary, which was adopted later with regard to the UN CAT: Harold Hongju Koh, ‘Memorandum Opinion on the Geographic Scope of the International Covenant on Civil and Political Rights’, 19 October 2010,; Harold Hongju Koh, ‘Memorandum Opinion on the Geographic Scope of the International Convention Against Torture and Its Application in Situations of Armed Conflict’, 21 January 2013,

60 US State Department, UN Committee Against Torture, Periodic Report of the United States of America, 12 August 2013,

61 US courts consider claims of torture under domestic legislation (Alien Tort Statute (28 USC §1350), Torture Victim Protection Act (106 Stat 73)) which in some cases confers on them jurisdiction over acts of torture committed abroad: Al Shimari v CACI Premier Technology Inc 758 F 3d 516 (4th Cir 2014).

62 In Hamdan v Rumsfeld 548 US 557 (Sup Ct 2006), the US Supreme Court applied the Geneva Conventions, which are considered customary international humanitarian law, since they were integrated into the national law via the Uniform Code of Military Justice (UCMJ). The US Supreme Court applies a ‘presumption against extraterritoriality’ to the Alien Tort Statute and domestic legislation in general, according to which ‘when a statute gives no clear indication of an extraterritorial application, it has none’ unless the facts of the case ‘touch and concern’ US territory. However, this presumption applies to statutes and not to the Constitution, which is the focus of this article. See Morrison v National Australia Bank Ltd 561 US 247 (Sup Ct 2010); Kiobel v Royal Dutch Petroleum Co (n 14).

63 For a review and analysis see Milanovic (n 7) 67–83; Neuman (n 7) 398–401; Neuman, Gerald L, ‘The Habeas Corpus Suspension Clause after Boumediene v. Bush ’ (2010) 110 Columbia Law Review 537 Google Scholar.

64 Neuman (n 7); Cleveland (n 10) 33–35, 44–48; Boumediene v Bush (n 5); Martinez (n 9).

65 In Dorr v United States 195 US 138 (Sup Ct 1904) the Court ruled that the constitutional right of jury trial was not fundamental and therefore did not apply to the unincorporated Philippines.

66 As quoted by Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (2nd edn, Cambridge University Press 2007) 282 Google Scholar.

67 Johnson v Eisentrager 339 US 763 (Sup Ct 1950).

68 ibid 798.

69 Reid v Covert 354 US 1 (Sup Ct 1956).

70 United States v Verdugo-Urquidez 494 US 259 (Sup Ct 1990).

71 Other rulings (eg Hamdi v Rumsfeld 542 US 507 (Sup Ct 2004)) have discussed the status of American citizens suspected of involvement in terrorism, and the distinction between citizens and non-citizens continues to be made in American court decisions and in the public debate.

72 Rasul v Bush 542 US 466 (Sup Ct 2004); Hamdan v Rumsfeld (n 62); Boumediene v Bush (n 5).

73 Boumediene v Bush (n 5).

74 Cleveland, Sarah H, ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs’ (2002) 81 Texas Law Review 1, 5 and 8Google Scholar.

75 Al Maqaleh v Gates (n 5); Ghosh, Saurav, ‘ Boumediene Applied Badly: The Extraterritorial Constitution after Al-Maqaleh v Gates ’ (2011) 64 Stanford Law Review 1 Google Scholar.

76 See text accompanying nn 41 and 42 regarding the US non-recognition of the authority of the Inter-American Court of Human Rights. In addition, the US did not join the ICC Statute (Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90) and is not subject to the International Criminal Court. The ICJ does have authority over the US (and the applicable law includes both the human rights conventions and international humanitarian law) but only states or the UN Security Council can approach the Court, and the US wields veto power in the latter. See also Koh, Harold Hongju, ‘On American Exceptionalism’ (2003) 55 Stanford Law Review 1479 Google Scholar; Keitner (n 9) 71–81, 110–11.

77 According to art 32 ECHR (n 40), the jurisdiction of the ECtHR is limited to the interpretation and implementation of the Convention and its Protocols. For more on the issue of jurisdiction see Cohen (n 21); Ronen (n 36) 137.

78 Katyal, Neal K, ‘Equality in the War on Terror’ (2007) 59 Stanford Law Review 1365 Google Scholar.

79 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI, art 2(3)–(4); UNGA Res 2625(XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970; Dinstein (n 12) 49; Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 16Google Scholar.

80 See sources cited in n 37, as well as Gross (n 33).

81 The reference is to Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, which stipulated for the first time the primacy of the Basic Laws and the rights anchored in them compared with regular laws: Barak (n 35); Gross (n 35).

82 Kretzmer (n 37) 25–35. As mentioned above, according to Israel's theory of reception, customary international law is automatically binding and enforceable in domestic courts, unlike treaty law which is not domestically binding unless it is incorporated into law.

83 Wall (n 13); Ben-Naftali and Shany (n 8).

84 Following a long period of hesitation during which human rights treaties were considered non-binding law, the Court stated, without detailed reasoning, that those treaties are binding in the OPT: HCJ 769/02 Public Committee Against Torture in Israel v Government of Israel ILDC 597 (IL 2006) [2006] (PCATI), which dealt with the targeted assassinations policy. This position was taken contrary to the Israeli government's position.

85 Especially the Basic Law: Human Dignity and Liberty: Barak (n 35); Gross (n 35).

86 A number of scholars have argued that since 2000 Israeli law has increasingly relied on international law: Barak-Erez (n 22); Cohen (n 22). The research presented here challenges this argument, at least concerning the OPT, which involved international law from the outset. On an ideology-oriented periodisation of the history of law see Likhovski, Assaf, and, ‘Between “Mandate”State”: Rethinking the Periodization of Israeli Legal History’ (1998) 19(2) Journal of Israeli History 39 CrossRefGoogle Scholar.

87 Israeli law was applied to East Jerusalem and the Golan Heights, which were formally annexed.

88 For the Court's position, see Kretzmer (n 37) 19–29.

89 HCJ 256/72 Electric Corporation for the Jerusalem District v Minister of Defence 1972 PD 27(1) 124. In this, and in an earlier case, the state did not contest the Court's authority to hear petitions from residents of the territories against the military authorities, and the Court adopted this stance without difficulty.

90 HCJ 390/79 Duweikat v Government of Israel 1979 PD 34(1) 1. The Court ruled that customary international rules are expressed in the Hague Regulations of 1907 (Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461), to which a number of additional rules were added over the years, such as art 51 of Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 125 UNTS 3 (AP I)). The state and the Court still do not recognise the formal application of GC IV in the territories: Kretzmer (n 37) 19–29.

91 HCJ 619/78 Al Tal'ia v Minister of Defence 1979 PD 33(3) 505, para 7. See also HCJ 393/82 Jama'yat Iskan Registered Collective Association in Judea and Samaria v Commander of IDF Forces in Judea and Samaria 1983 PD 37(4) 785, para 33 (Jama'yat Iskan): ‘From this perspective, we can say that every Israeli soldier carries with him in his backpack the rules of customary public international law regarding the laws of war and the basic rules of Israeli administrative law’.

92 Justice Aharon Barak, ‘International Humanitarian Law and the Israeli Supreme Court’, lecture given at the Minerva Center for Human Rights, Hebrew University of Jerusalem, 3 July 2013; Barak, Aharon, ‘International Humanitarian Law and the Israeli Supreme Court’ (2014) 47(2) Israel Law Review 181 Google Scholar.

93 HCJ 87/85 Arjoub v Commander of IDF Forces in Judea and Samaria 1988 PD 42(1) 353.

94 For a description and details, see Hajjar, Lisa, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press 2005) 13 Google Scholar; Weill, Sharon, ‘The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories’ (2007) 89(866) International Review of the Red Cross 395 Google Scholar.

95 The argument referred, at least according to what appears in the ruling, to a military court operating under the Defence (Emergency) Regulations of 1945, where Arab citizens of Israel were brought to trial for security offences: Korn, Alina, ‘Crime and Legal Control: The Israeli Arab Population during the Military Government Period (1948–66)’ (2000) 40 British Journal of Criminology 574 Google Scholar. Thus, the argument refers to the most precise parallel in Israel to the military courts, and not to courts martial in which soldiers are prosecuted, or to civilian courts where there is a right of appeal against any ruling.

96 n 47.

97 UNGA Res 217A (III), UN Doc A/810 (1948) 71.

98 To be precise, the right of appeal was recognised here not as a human right or constitutional right of the accused. Rather, it was recognised as an institutional right of appeal that was stipulated in the Basic Law, which sets the structure of the judicial system.

99 Arjoub v Commander of IDF Forces in Judea and Samaria (n 93) 362.

100 ibid 379 (Justice Shamgar).

101 ibid 380 (Justice Levin).

102 Straschnov, Amnon, Justice under Fire: The Legal System during the Intifada (Yedihot Aharonot 1994) 5361 Google Scholar (in Hebrew).

103 HCJ 540/84 Mustafa Yusef v Warden of the Central Prison in Judea and Samaria 1986 40(1) 567.

104 United Nations, Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955.

105 Mustafa Yusef v Warden of the Central Prison in Judea and Samaria (n 103) 573 (Justice Barak).

106 HCJ 253/88 Sajadiya v Minister of Defence 1988 PD 42(3) 801.

107 For a similar trend in the military courts in the territories see Benichou, Netanel, ‘On Criminal Law in Judea, Samaria and the Gaza Strip: A Window and Trends’ (2005) 18 Mishpat Vetzava [IDF Law Review] 293 Google Scholar (in Hebrew); Ben-Natan, Smadar, ‘The Application of Israeli Law in the Military Courts of the Occupied Territories’ (2014) 43 Theory and Criticism 45 Google Scholar (in Hebrew).

108 Shamir (n 37); Kretzmer (n 37); Gross (2007) (n 33).

109 Boumediene v Bush (n 5); Neuman (n 7). See also Kingsbury, Benedict, Krisch, Nico and Stewart, Richard B, ‘The Emergence of Global Administrative Law’ (2005) 68 Law & Contemporary Problems 15 Google Scholar.

110 Al-Skeini v United Kingdom (n 6); Issa v Turkey (n 44); Boumediene v Bush (n 5).

111 Ben-Naftali and Shany (n 8), and in the decisions cited at nn 112–123.

112 HCJ 3239/02 Mar'ab v IDF Commander in the West Bank 2003 PD 57(2) 349.

113 HCJ 7957/04 Mara'abe v Prime Minister of Israel 2005 PD 60(2) 477.

114 The Wall (n 13); an earlier Supreme Court decision, handed down several days prior to the ICJ opinion, is HCJ 2056/04 Beit Sourik Village Council v Government of Israel 2004 PD 58(5) 807. For an analysis of the relationship and differences between this ruling and the ICJ's opinion see Shany, Yuval, ‘Capacities and Inadequacies: A Look at the Two Separation Barrier Cases’ (2005) 38 Israel Law Review 230 Google Scholar; Gross, Aeyal M, ‘The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation’ (2006) 19 Leiden Journal of International Law 393 Google Scholar.

115 Mara'abe v Prime Minister of Israel (n 113) 536–37.

116 ibid, opinion of President Barak, para 31.

117 PCATI (n 84) opinion of President Barak, para 18.

118 ibid, opinion of President Barak, para 41. For a similar approach, see also HCJ 5488/04 A-Ram Local Council v Government of Israel (2006) Nevo Legal Database (by subscription, in Hebrew).

119 PCATI (n 84) opinion of Justice Rivlin, para 1.

120 For a thorough examination of the possibilities of applying Basic Law: Human Dignity and Liberty to the residents of the territories and the significance of its application from the perspective of human rights law and the laws of occupation, see Ronen (n 36); Orgad, Liav, ‘Whose Constitution and for Whom? On the Scope of Application of Basic Laws’ (2009) 12 (5770) Mishpat Umimshal [Law and Government] 145 Google Scholar (in Hebrew).

121 HCJ 168/91 Murkus v Minister of Defence 1991 PD 45(1) 467.

122 ibid 470.

123 Gaza Coast Regional Council v The Knesset (n 2).

124 HCJ 10356/02 Hass v Commander of IDF Forces in the West Bank 2004 PD 58(3) 443, 460.

125 Abu Daher v Commander of IDF Forces in Judea and Samaria (n 1).

126 HCJ 8276/05 Adalah v Minister of Defence 2006 PD 62(1) 1.

127 Canor, Iris, ‘Israel and the Territories: The Interplay between Private International Law and Public International Law’ (2005) 8 Mishpat Umimshal [Law and Government] 551 Google Scholar (in Hebrew); Karayanni, Michael, Conflicts in a Conflict: A Conflict of Laws Case Study on Israel and the Palestinian Territories (Oxford University Press 2014)Google Scholar.

128 HCJ 5666/03 Kav La'oved v National Labour Court 2007 PD 62(3) 264.

129 With which Justice Procaccia concurred.

130 Kav La'oved v National Labour Court (n 128) 36–37.

131 The ICJ and the ICC can both rule on questions of IHL, but they cannot be addressed directly by individuals and their jurisdiction is, in most cases, based on the consent of states. Israel has not accepted the jurisdiction of either court.

132 Droege (n 33) 349; Lubell (n 33) 319; Gross (2016) (n 33) 21–22.

133 Jama'yat Iskan (n 91) para 33.

134 With the exception of the minority opinion of Justice Grunis in Adalah v Minister of Defence (n 126), who raises the questions, yet leaves them unresolved.

135 In some of its rulings, the Court blurs the distinction between constitutional law and administrative law: Arjoub v Commander of IDF Forces (n 93); Mustafa Yusef v Warden of the Central Prison (n 103); Kav La'oved v National Labour Court (n 128).

136 For the primacy granted by judges to domestic law in national courts see Sturley (n 27).

137 On the uses of international law in the US Supreme Court see Koh (n 22); Neuman (n 22); Cleveland (n 10). For the recognition of human rights conventions as binding and enforceable see PCATI (n 84).

138 As opposed to other fields of law where legal doctrine mandates the consideration of the applicable law, such as private international law. On questions of choice of laws in the Israeli/Palestinian context see Karayanni (n 127); Canor (n 127).

139 For a similar argument with regard to the adoption of this method of examination in the territories by the military courts, which are not at all obligated by Israeli law, see Benichou (n 107); Ben-Natan (n 107), as well as Ronen, Yaël, ‘Blind in Their Own Cause: The Military Courts in the West Bank’ (2013) 2 Cambridge Journal of International and Comparative Law 739 Google Scholar.

140 Kretzmer (n 37) 197.

141 HCJ 2690/09 Yesh Din v Commander of IDF Forces in the West Bank, 2010, Nevo Legal Database (by subscription, in Hebrew).

142 Ben-Naftali, Orna, Gross, Aeyal M and Michaeli, Keren, ‘Illegal Occupation: Framing the Occupied Palestinian Territory’ (2005) 23(3) Berkeley Journal of International Law 551 Google Scholar; Azoulay, Ariella and Ophir, Adi, The One-State Condition: Occupation and Democracy in Israel/Palestine (Stanford University Press 2013)Google Scholar.

143 HCJ 3450/06 Dweib v The Military Commander 2008, Nevo Legal Database, 8–9 (by subscription, in Hebrew).

144 HCJ 2722/92 Alamarin v IDF Commander in Gaza Strip 1992 PD 46(3) 693, opinion of Justice Cheshin, para 8.

145 They do not completely refrain from doing so, or from handing down rules that would leave the issue at hand outside of that rule's reach. See, eg, Banković v Belgium (n 46); Johnson v Eisentrager (n 67); Al Maqaleh v Gates (n 5); in Israel, HCJ 4481/91 Bargil v Government of Israel 1993 47(4) PD 210, where the Court ruled that the question of legality of the settlements was non-justiciable.

146 Koskenniemi (n 15) 11–12.

147 ibid 22.

148 Benvenisti (n 23); Cohen (n 21). It is also interesting to note in this context that the US Supreme Court in Boumediene v Bush (n 5) examined the additional legal defences available to detainees in Guantánamo in order to decide whether it was necessary to extend to them the right of habeas corpus proceedings. The decision regarding the need for this remedy was not formal, but stemmed, inter alia, from the legal vacuum in which the government had placed the detainees. Thus, for example, the Court determined that the German detainees in Johnson v Eisentrager (n 67) were given broader rights of a fair trial in the framework of military justice proceedings than those offered in Guantánamo, which ‘compensated’ for the lack of the right to habeas corpus proceedings.

149 Sha'ar v State of Israel (n 14); Kiobel v Royal Dutch Petroleum Co (n 14); Martinez (n 9).

150 Keitner (n 9) (US, UK and Canada); Neuman (n 7) 383–84 (Germany and France); Milanovic (n 7) 65 (Canada).

151 Cleveland (n 10).

152 Neuman (n 7); Cleveland (n 10) also advances a principled role for international law in constitutional interpretation, which is not specific to extraterritorial application.

153 Neuman (n 7) 394–96.

154 Koh (n 24) 183–84.

155 Jabareen, Hassan, ‘The Rise of Transnational Lawyering for Human Rights’ (2008) 1 Ma'asei Mishpat 137 Google Scholar (in Hebrew). Examples of this type of lawyering can be found not only in the cases Jabareen presents, but also in many other cases, such as Mar'ab v IDF Commander in the West Bank (n 112); PCATI (n 84).

156 Wall (n 13); Mara'abe v Prime Minister of Israel (n 113). For a comparative and transnational analysis of the Israeli ruling and the opinion, see Gross (n 114); Shany (n 114).

157 For example, the right to equality of women in marriage and divorce, or the right to freedom of religion. See also Ronen (n 36) 136; Gross (2016) (n 33).

158 Gross (n 114) 432; Mara'abe v Prime Minister of Israel (n 113); Beit Sourik Village Council v Government of Israel (n 114).

159 Proclamation Re: Entry into Effect of the Order Concerning Security Directives (West Bank Region) (No 3) – 1967, Collection of Proclamations, Orders and Appointments of the Military Commander of the West Bank Region, Israeli Defence Forces (CPOA) 1, 5. This is one of the main Israeli military orders in the OPT, forming part of the military legislation.

160 The order that repealed art 35 was the Order concerning Directives (West Bank) (Amendment No 9) (Order No 144) – 1967, CPOA, ibid 8, 303. For Israel's position with regard to the application of the Fourth Geneva Convention, see Kretzmer (n 37) 32–35; Yesh Din v Commander of IDF Forces in the West Bank (n 141); PCATI (n 84).

161 Cleveland (n 10) 47.

162 Koskenniemi (n 15) 21.

163 Characteristics that Koh (n 24) describes.

164 Anghie (n 66) 54; Onuma, Yasuaki, A Normative Approach to War: Peace, War, and Justice in Hugo Grotius (Oxford University Press 1993) 377–81Google Scholar.

165 For an excellent discussion of these points see Martinez (n 9).

166 For a critique of applying human rights in armed conflict or occupation see Gross (2016) (n 33); Modirzadeh (n 33) 360–67, who terms the enforcement of human rights by the occupying military forces ‘rights at the end of a gun’.