Published online by Cambridge University Press: 04 July 2014
Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.
1 International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, G.A. res. 2200A (XXI), 21 UN. GAOR Supp. (No. 16) at 49, UN. Doc. A/6316 (1966), 993 U.N.T.S. 3 (Hereinafter: ICESCR).
2 State of Israel Implementation of the International Covenant on Economic, Social and Cultural Rights – Second Periodic Report, 3 Aug. 2001, para. 5–8, UN Doc. E/1990/6/Add.32 (2001).
3 State of Israel International Covenant on Civil and Political Rights – Second Periodic Report, 20 Nov. 2001, para. 8, UN Doc. CCPR/C/ISR/2001/2 (2001). See also State of Israel Implementation of the International Covenant on Economic, Social and Cultural Rights – Additional Information, 20 April 2001, para. 2–5, UN Doc. E/1989/5/Add.14 (2001). This was also the position taken by the Israeli delegation before the International Committee on the Rights of the Child and the International Committee on the Elimination of Racial Discrimination. Committee on the Rights of the Child Summary Record of the 829th meeting: Israel, 10 Oct. 2002, para. 39–42, UN Doc. CRC/C/SR.829 (2002); Note Verbale dated 8 August 1994 from the Permanent Representative of Israel to the United Nations Office at Geneva, UN Doc. CERD/C/282 (1995).
4 International Covenant on Civil and Political Rights, 16 Dec. 1966, UN GA Res. 2200 A (XXI), GAOR, 21st Sess., Supp. No. 16 (A/6316) 52, UN Doc. A/CONF. 32/4. (Hereinafter: ICCPR).
5 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 23 May 2003, para. 15, UN Doc. E/C.12/1/Add.90 (2003).
6 Concluding Observations of the Human Rights Committee: Israel, 5 Aug. 2003, para. 11, UN Doc CCPR/CO/78/ISR (2003).
7 See Concluding Observations of the Committee on the Rights of the Child: Israel, 9 Oct. 2002, para. 2, UN Doc. CRC/C/15 Add.195 (2002); Concluding Observations of the Human Rights Committee: Israel, 18 Aug. 1998, para. 10, UN Doc CCPR/C/79/Add.93 (1998); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, 30 March 1998, para. 12, UN Doc. CERD/C/304/Add.45 (1998); Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, 19 Aug. 1994, para. 74, UN Doc. A/49/18 (1994); Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Israel, 12 August 1997, para. 170, UN Doc. A/52/38/Rev.1, Part II, para. 132–183 (1997). See also Committee on Economic, Social and Cultural Rights: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 31 Aug. 2001, para. 11–12, UN Doc. E/C.12/1/Add.69 (2001). It is interesting to note that in the first review of Israel's periodic report before the CERD Committee, the Committee members were split on the question whether Israel should address in the report issues related to the implementation of the Convention in the West Bank and Gaza Strip, as some members felt that it might legitimize the Israeli occupation. Report of the Committee on the Elimination of Racial Discrimination, G.A.O.R. Off. Rec, 36th Sess., Supp. No. 18 (A/36/88)(1981) 37–38. Ultimately, the view that the Convention requires such reporting prevailed in the Committee. See CERD Concluding Observation (1994), supra; CERD Concluding Observation (1998), supra. The only UN Treaty body before which the issue never explicitly arose is the Committee Against Torture. While Israel expressed the view that there were legal difficulties in applying the Convention in the Occupied Territories, it never formally challenged the authority of the Committee to receive information with relation to events taking place in the West Bank and Gaza Strip. Committee Against Torture Summary Record of the Public Part of the 184th meeting: Israel, 28 April 1994, para. 22 UN Doc. CAT/C/SR.184 (1994)( “In the light of the details [the] delegation had already provided to the Committee, the question [of applicability] must be regarded as a purely formal one… although there were legal arguments in favour of not implementing the Convention in the Territories.”)
8 Note, however, that Israel contests the formal applicability of the Fourth Geneva Convention in the Occupied Territories. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, art. 27, 75 U.N.T.S. 287 (Hereinafter: Geneva IV). For a discussion see infra text accompanying n. 17.
9 Convention on the Elimination of All Forms of Discrimination against Women, 18 Dec. 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, UN. Doc. A/34/46 (Hereinafter: CEDAW).
10 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, G.A. res. 39/46. 39 U.N. GAOR Supp. (No. 51), UN Doc. A/39/51, at 197 (1984), 23 I.L.M. (1984) 1027 (Hereinafter: CAT).
11 Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989) (Hereinafter: CRC).
12 International Convention on the Elimination of All Forms of Racial Discrimination, 21 Dec. 1965, G.A. res. 2106A (XX), U.N. GAOR, 12th Sess., Supp. No. 14 (A/6014) 47, UN Doc. A/CONF. 32/4 (Hereinafter: CERD). The only major UN human rights treaty to which Israel is not party is Convention on the Rights of Migrant Workers, which entered into force on 1 July 2003. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 Dec. 1990, G.A. res. 45/158, annex, 45 UN. GAOR Supp. (No. 49A) at 262, UN. Doc. A/45/49 (1990) (Hereinafter: MWC).
13 Committee on Economic, Social and Cultural Rights Press Release: Committee on Economic, Social and Cultural Rights Takes Up Second Periodic Report of Israel, 15 May 2003 [http://www.unhchr.ch/huricane/huricane.nsf/view01/4AA97AAA4F1AC1D6C1256D28004675A8?opendocument]; Committee on Economic, Social and Cultural Rights Summary record of the 39th meeting: Israel, 27 Aug. 2001, UN Doc. E/C.12/2001/SR.39 (2001); CRC Summary Record, supra n. 3, at para. 39–42; State of Israel Responses to List of Issues Raised by the Working Group, Part A1 (1998) (copy with authors).
14 See Committee on Economic, Social and Cultural Rights Summary Record of the 31st meeting: Israel, 19 Nov. 1998, para. 38–39, UN Doc. E/C.12/1998/SR.31 (1998); Committee on the Elimination of Racial Discrimination Summary record of the 1251st meeting: Israel, 11 March 1998, para. 61, UN Doc.CERD/C/SR.1251(1998).
15 It should be noted that the same position had been essentially taken by Israel during the 1990s, with regard to the application of the Conventions to Southern Lebanon. Israel had argued that the Conventions could not apply there by reason of their language and in the light of absence of effective control over that area by Israel. Since this legal question has become moot following the Israeli withdrawal from Southern Lebanon in 2000, we will not address it in the context of the present article, although our conclusions with regard to the applicability of the Conventions to the Occupied Territories are relevant for that discussion as well.
16 Hague Convention Respecting the Laws and Customs of War, 18 Oct. 1907, Annex, 36 Stat. 2277; T.S. 539 (Hereinafter: Hague IV or Hague Regulations).
17 On the Israeli position See e.g., Shamgar, Meir, “Legal Concepts and Problems of the Israeli Military Government – The Initial Stage” in Shamgar, Meir ed. Military Government in the Territories Administered by Israel 1967–1980 (Jerusalem, The Harry Sacher Institute, 1982) 13, at 31–43Google Scholar; Blum, Yehuda Zvi, “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is. L. R. 279CrossRefGoogle Scholar; Shamgar, Meir, “The Observance of International Law in the Administered Territories” (1971) 1 Is. Y.B. Hum. Rts. 262, at 263Google Scholar; Howlett, Stacy, “Palestinian Private Property Rights in Israel and the Occupied Territories” (2001) 34 Vand. J. of Transnat'l L. 117, at 153Google Scholar. This position received considerable criticism by international bodies and scholars alike. See e.g., G.A. Res. 32/91, UN. GAOR, 32nd Sess., Supp. no. 45 (1977) 69; G.A. Res. 33/113, UN. GAOR, Supp. no. 45 (1978) 70; G.A. Res. 44/40, UN. GAOR, 44th Sess., Supp. no. 49 (1989) 41; S.C. Res. 237, UN. SCOR, 1361st mtg. (1967) 5; S.C. Res. 446, UN. SCOR, 2134th mtg. (1979) 4; S.C. Res. 605, UN. SCOR. 2777th mtg. (1987) 4. See also Roberts, Adam, “Prolonged Military Occupation: The Israeli Occupied Territories Since 1967” (1990) 84 A.J.I.L. 44, at 69–70Google Scholar; Falk, Richard A. and Wetson, Burns H., “The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza” in Playfair, Emma, ed. International Law and the Administration of Occupied Territories (Oxford, Oxford University Press 1992) 125, at 130–136Google Scholar; Dinstein, Yoram, “The International Law of Belligerent Occupation and Human Rights” (1978) 8 Is. Y.B. Hum. Rts. 104, at 107Google Scholar; Cohen, Esther R., Human Rights in the Israeli-Occupied Territories 1967–1982 (Manchester, Manchester University Press, 1985) at 51–56Google Scholar; Benvenisti, Eyal, The International Law of Occupation (Princeton, Princeton University Press, 1993) at 109–110Google Scholar; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, State University of New York Press, 2002) at 34Google Scholar; Ben-Naftali, Orna and Michaeli, Keren R., “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings” (2003) 36 (2) Cornell J. Int. L. 233, at 260–292Google Scholar; Imseis, Ardi, “The Fourth Geneva Convention and the Occupied Palestinian Territory” (2003) 44 Harv. Int'l L. J. 65Google Scholar.
18 Human Rights Committee Summary Record of the 1677th Meeting: Israel, 27 July 1998, para. 32, UN Doc. CCPR/C/SR.1677 (1998).
19 Human Rights Committee Summary Record of the 1675th meeting: Israel, 21 July 1998, para. 23, UN Doc. CCPR/C/SR.1675 (1998).
21 Pictet, Jean, Humanitarian Law and the Protection of War Victims (Leiden, Henry Dunant Institute, 1975) 15Google Scholar; Colb, Robert, “The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions” (1998) 38 Int. Rev. Red Cross 409, at 410–411Google Scholar.
22 Quentin-Baxter, Richard, “Human Rights and Humanitarian Law – Confluence or Conflict” (1985) 9 Australian Y.B. Int. L. 94, at 97Google Scholar.
23 Universal Declaration of Human Rights, 10 Dec. 1948, Preamble para. 2, 4, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) (Hereinafter: UDHR).
24 See generally, Draper, Gerald Irving A. Dare, “Humanitarian Law and Human Rights” (1979) Acta Juridica 193Google Scholar; Dinstein, Yoram, “Human Rights in Armed Conflict: International Humanitarian Law” in Meron, Theodor, ed., Human Rights in International Law (Oxford, Clarendon Press, 1984) 345, at 350–51Google Scholar (This lex specialis argument applies, according to Dinstein, to most human rights).
25 Resolution XXIII (Human Rights in Armed Conflicts), Final Act of the International Conference on Human Rights, 13 May 1968, UN. Doc. A/Conf.32/41, reprinted in 63 A.J.I.L. (1969) 680 (Resolution adopted on 12 May 1968).
26 See Meron, Theodor, “The Humanization of Humanitarian Law” (2000) 94 A.J.I.L. 239, at 242–243Google Scholar. On the origins of IHL see generally, Noone, G.P., “The History and Evolution of the Law of War Prior to World War II” (2000) 47 Naval Law Review 176Google Scholar; Jochnick, Chris af and Normand, Roger, “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harv. Int'l L.J. 49Google Scholar.
27 On the origins of HR law see generally, Shestack, Jerome J., “The Jurisprudence of Human Rights” in Meron, Theodor, ed., 1Human Rights in International Law: Legal and Policy Issues (Oxford, Clarendon Press, 1984) 69, at 75–98Google Scholar.
29 See generally, Draper, Gerald Irving A. Dare, “The Relationship between Human Rights Regime and the Law of Armed Conflicts,” (1971) 1 Is. Y. B. Hum. Rts. 191Google Scholar; Peterson, Alex G., “Order Out of Chaos: Domestic Enforcement if the Law of Internal Armed Conflicts” (2002) 171 Mil. L. Rev. 1Google Scholar.
30 Baxter, supra n. 22, at p. 103.
31 This point is substantiated further by Colb's study of the preparatory works of both the Universal Declaration of Human Rights and the Geneva Conventions, as well as of the Commentaries on the Geneva Conventions published under the editorship of Jean Pictet between 1952–1960, disclosing the paucity of cross referring one regime to the other. See Colb, supra n. 21, at p. 413–414.
32 See Pictet, supra n. 21, at 15; Cohen, supra n. 17, at 9.
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34 In the same, somewhat ironic vein, it may be, indeed it has been, argued that the very idea of making humanitarian law more humane, by infusing it with human rights' consciousness, is counterproductive, as the harsher the law, the shorter the war. This argument is presented, and refuted, in Meron, supra n. 26, at 240–242.
36 On the distinction between first and second generation rights, see e.g., Eide, Asbjorn and Rosas, Allan, “Economic, Social and Cultural Rights: A Universal Challenge” in Eide, Asbjor, Krause, Catarina and Rosas, Allan, eds. Economic, Social and Cultural Rights: A Textbook (Dordrecht, M. Nijhoff Publishers, 2nd edition, 2001) 3Google Scholar. On third generation rights, see e.g., Alston, Philip, “A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?” (1982) 29 Neth. Int'l L. Rev. 307CrossRefGoogle Scholar.
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38 See e.g., Geneva IV, art. 4–5. See also Pictet, supra n. 21, at 15.
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42 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (Hereinafter: Vienna Convention).
43 See also CAT, art. 16.
44 See e.g., Committee on the Elimination of Racial Discrimination Summary Record of the 1250th meeting: Israel, 9 March 1998, para. 4, UN Doc. CERD/C/SR. 1250 (1998).
45 See infra text accompanying n. 167–169.
46 Cf. MWC, art. 7 (“States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention…”)(emphasis added). This demonstrates that the drafters of the ICCPR could have resorted to clear disjunctive language had they intended to reject a conjunctive reading of the Covenant.
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55 Article 29 reads: “Everyone has duties to the community in which alone the free and full development of his personality is possible.”
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59 See e.g., Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) 2001Google Scholar I.C. J. (Not yet published), at para. 37; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 (I) I.C.J. 66, 75; Kasikili/Sedudu Island (Botswana/Namibia) 1999 (II) I.C.J. 1045, 1059, 1075Google Scholar; Golder v. U.K., 18 Eur. Ct. H.R. (ser. A)(1975), at para. 29.
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61 HRC Summary Record, supra n. 19, at para. 21. The delegation relied specifically upon Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 2 Eur. Comm'n H.R. Dec. & Rep. (1975) 125, 136. For discussion of the case, see infra. For additional support of the Israeli position regarding the suitability of the actual control test and its application to the Occupied Territories, see Watson, Geoffrey R., The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford, Oxford University Press, 2000) 175–176CrossRefGoogle Scholar.
62 See ICESCR Second Periodic Report, supra a 2, at para. 7; ICCPR Second Periodic Report, supra n. 3, at para. 8; HRC Summary Record, supra n. 19, at para. 26; CERD Summary Record, supra n. 44, at para. 6.
63 Interim Agreement on the West Bank and the Gaza Strip, 28 Sept. 1995, art. XIX, 36 I.L.M. (1997) 551; Wye River Memorandum, 23 Oct. 1998, art. II(c)(4) 37 I.L.M. (1998) 1251.
64 HRC Summary Record, supra n. 19, at para. 22; CESCR Summary Record, supra n. 14, at para. 38. See also CERD Summary Record, supra n. 44, at para. 5 (“Israel, not only legally but for very practical reasons, was not in a position to report on cases of discrimination in the territories. It was not in a position to enforce any compliance with human rights norms in the territories and was therefore unable to brief the Committee on the situation”).
65 See e.g., HRC Summary Record, supra n. 19, at para. 27.
66 Bankovic, supra n. 48. For a detailed discussion of the case see infra text accompanying n. 219–231.
69 Baxter, Richard, “Some Existing Problems in Humanitarian Law” in The Concept of International Armed Conflict: Future Outlook (Brussels, 1974) 1, at 2. [see details in http://lms01.harvard.edu/F/5VUE1GBMSSHLE83SAHNE11VUP4VX4VUXKEG59VNT2T1RM3TSAK-01151?func=full-set-set– the original paper was from 1974, it was reprinted in 1975]Google Scholar
70 See supra Part II (B).
71 Charter of the United Nations, 26 June 1945, preamble, 59 Stat. 1031 (Hereinafter: UN Charter)(“We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”).
72 See for example, the considerable convergence of IHL norms governing international and non-international armed conflicts; Prosecutor v. Tadic, Decision of 2 Oct. 1995, para. 97–127 (ICTY Appeals Chamber) [http://www.un.org/icty/tadic/appeal/decision-e/51002.htm].
73 Pictet, supra n. 21, at 11–18. It is interesting to note in this context that pursuant to the HCJ's ruling of April 18, 2002, in H.C.J. 769/02, The Public Committee Against Torture v. Government of Israel (The legality of targeted killings case), which requested the parties, inter alia, to state their positions on what system of law applies to the issue, the Respondent's brief (Supplementary Statement by the State's Attorney's Office), argued not only that IHR law is inapplicable but that the Respondent will use the term “Law of Armed Conflicts” rather than “International Humanitarian Law”: “Without going into a profound discussion on the logic inherent in the new term (“International Humanitarian Law”), it is important to emphasize that one of its disadvantages, in the Respondent's way of thought, is the risk of confusing this term, which includes the “laws of war” and the term “international human rights law”, which is another area altogether and separate from international law, which deals with the protection of the fundamental rights of individuals within states…” (Unofficial translation). H.C.J. 769/02 The Public Committee Against Torture v. Government of Israel, Supplementary Statement by the State's Attorney's Office of 2 Feb. 2003, Para. 40 (copy with authors).
74 Draper, supra n. 24, at 197.
75 For a clear articulation of this paradigm, see Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, art. 15, 213 U.N.T.S. 222 (Hereinafter European HR Convention); American Convention on Human Rights, art. 27, 27 Nov. 1969, 1144 U.N.T.S. 123 (Hereinafter: I/A HR Convention).
76 Prosecutor v. Furundzija, judgment of 10 Dec. 1998, para. 183 (ICTY Trial Chamber) http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.htm#2.
77 UDHR, art. 2 (”Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind…)(emphasis added). The second sentence of article 2 is particularly relevant to the case in discussion – “… [N]o distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”.
78 See supra text accompanying n. 21–25.
79 Resolution I (Respect and Enforcement of Human Rights in the Occupied Territories), Final Act of the International Conference on Human Rights, 13 May 1968, UN. Doc. A/Conf.32/41, reprinted in (1969) 63 A.J.I.L. 677 (resolution adopted on 7 May 1968). While UN Resolutions are generally non-binding, an accumulation of numerous resolutions, especially if adopted by large margins could be reflective of customary international law and aid in the interpretation of international norms. See e.g., Spectar, J.M. “Pay Me Fairly, Kathie Lee! The WTO, The Right to a Living Wage, and a Proposed Protocol” (2000) 20 N.Y.L. Sch. J. Int'l & Comp. L. 61, 76–79Google Scholar.
80 Resolution XXIII, supra n. 25.
81 GA Res. 2444 (Respect for Human Rights in Armed Conflict), 19 Dec. 1968, UN GAOR. 23rd Sess., Supp. No. 19 (1968).
82 UN Secretary-General, Respect for Human Rights in Armed Conflicts, UN Doc. A/7720 (1969); UN Secretary-General, Respect for Human Rights in Armed Conflicts, UN Doc. A/8052 (1970). The UN General Assembly's Third Committee discussed both reports. Report of the Third Committee, UN G.A.O.R., 25 Sess., Annex I (A/8178X1970) 47.
83 GA Res. 2674 (1970) in Djonovich, D.J. (ed.), XIII United Nations Resolutions–Resolutions Adopted by the General Assembly (1970–1971) (Dobbs Ferry, 1976) 291–292Google Scholar.
84 The Martens clause was first incorporated in the preamble to the Second Hague Convention (1899) which provides that: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience”. Convention [No. II] with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803. Slightly revised versions of the same clause appear in the Hague IV (1907); Protocol I, art. 1(2); [see http://www1.umn.edu/humanrts/instree/1899b.htm; http://www1.umn.edu/humanrts/instree/1907c.htm; 8 June 1977, preamble, 1125 U.N.T.S. 609 (Hereinafter: Protocol II). For discussion, see Meron, Theodor, “The Martens Clause, Principles of Humanity, and Dictates of Public Conscience” (2000) 94 A. J. I. L. 78Google Scholar. Another famous formulation, adopted by the ICJ, highlights that the humanitarian constraints on the use offeree are “elementary considerations of humanity”. Corfu Channel (UK v. Alb.), 1949 I.C.J. 4, 22.
85 See Charter of the International Military Tribunal (IMT), Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 Aug. 1945, 82 U.N.T.S. 280:
86 Convention on the Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 U.N.T.S. 277.
87 The article reads: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.
88 Military and Paramilitary Activities In and Against Nicaragua v. U.S., 1986 I.C.J. 14, 114.
89 Hague IV, art. 2; Convention for the Amelioration of the Condition of the Wounded and the Sick in Armies in the Field, 6 July 1906, art. 24, 11 L.N.T.S. 440.
90 The 1929 Prisoners of War Convention prohibited Reprisals against POWs, 27 July, 1929, 118 L.N.T.S. 343); the 1949 Geneva Conventions prohibited Reprisals against protected persons, installations and property and outlawed collective punishment (Geneva I, art. 45; Geneva II, art. 47; Geneva III, art. 13; Geneva IV, art. 33). This prohibition was expanded in Protocol I, art. 20, 51–56. Finally, a general prohibition against reprisals affecting humanitarian interests can be derived from article 60(5) of the Vienna Convention. Insofar as the very notion of reprisals is anathema to the notion of individual protection underlying IHR law, this transition gives evidence to the distance IHL has made from its original inter-state focus.
91 For a discussion on the various manifestations of this shift, see generally, Meron, supra n. 26, at 247–251.
92 The Protocols reflect, inter alia, the influence of IHR by either making explicit references to certain rights (see e.g., Protocol I, art. 72; Protocol II, preamble), or by taking human rights into consideration (see e.g., Protocol I, art. 1(4) – referring to the right of self-determination; Protocol I, art. 75(4) – borrowing some of the language of ICCPR, art. 14). See generally, Schindler, Dietrich, “Human Rights and Humanitarian Law” (1982) 31 A. U. L. Rev. 935Google Scholar; Dinstein, supra n. 24; Provost, supra n. 35, at 6.
93 See Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, art. 5, G.A. res. 54/263, UN. GAOR, 54th Sess., Annex I, Supp. No. 49, UN. Doc. A/54/49 (2000).
94 Declaration of Minimum Humanitarian Standards, 2 Dec. 1990, U.N.Doc.E/CN.4/Sub.2/1991/55 (1990)(adopted by the Meeting of Experts at Human Rights Institute of Abo Akademi, Turku, Finland). At the request of the UN Commission on Human Rights the UN Secretary-General has prepared several reports describing studies designed to elaborate ‘fundamental standards of humanity’. See e.g., Report of the Secretary General on Fundamental Standards of Humanity, UN Doc. E/CN.4/2001/91 (2001).
95 Article 7 of the ICC statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/CONF.183/9 (1998)(Hereinafter ICC Statute) defines crimes against humanity. The concepts underlying these crimes derive from human rights law (e.g., the right to life, not to be tortured, the right to liberty and to security of person), as distinct from war crimes in the Statute, deriving from IHL. Note that as crimes against humanity may be committed in times of peace as well as in times of armed conflict, it further stands to reason that they can be committed against both civilians and members of the military. See e.g., Prosecutor v. Tadic, judgment of 7 May 1997, para. 643 (ICTY Trial Chamber) [http://www.un.org/icty/tadic/trialc2/judgement/tad-tj970507e.htm]. Article 6 of the ICC Statute, reproducing article II of the Genocide Convention, defines the crime of genocide, which could be viewed as a distinct subcategory of crimes against humanity.
96 Common Article 2 of the Geneva Conventions defines a conflict as international when it is waged between two or more states. According to common Article 3, all other conflicts are endered non-international. Article 1(4) of Additional Protocol I, in an effort to adapt the rules to changing realities, broadened the definition of an international armed conflict thereby equating the status of – and thus the protection accorded to – national liberation movements with that of states. This move had the then Palestinian Liberation Organization in mind, which is precisely why Israel and the United States refused to join the Protocol. Since unlike other parts of the Protocol, Article 1(4) generated much discord it cannot be regarded as customary law between the PA and Israel, the latter having remained a persistent objector thereto. Note, however, that insofar as the PA may be said to possess all the characteristics of a state enumerated in the Montevideo Convention on the Rights and Duties of States, 1933, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19, and has been recognized by various states, it may be argued that the conflict conforms to the traditional definition of an international one. Nevertheless, it is important in our context to note that the U.N. Inquiry Commission established by the UN Commission on Human Rights to investigate violations of human rights and humanitarian law in the Palestinian territories classified the conflict as non-international, “as Palestine, despite widespread recognition, still falls short of the accepted criteria of statehood”. See Question of the Violation of Human Rights in the Occupied Arab Territories, Including Palestine, Report of the Human Rights Inquiry Commission Established Pursuant to Commission Resolution S-5/1 of 19 October 2000, U.N. Doc. E/CN.4/2001/121, p. 12 (16 March 2001). For a general discussion on the proper classification of the conflict, see Shany, Yuval, “Israeli Counter-Terrorism Measures: Are They ‘Kosher’ under International Law?” in Schmitt, Michael N. ed. Terrorism and International Law: Challenges and Responses (San Remo, International Institute of Humanitarian Law, 2003) 96, at 100–101Google Scholar.
98 II Final Record of the Diplomatic Conference of Geneva International Committee of the Red Cross of 1949 – Section B (Berne, unspecified date) 536Google Scholar.
99 Pictet, Jean, ed., Commentary on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (Geneva, 1960) 373Google Scholar.
100 See e.g., GA Res. 38/101 Situation of Human Rights and Fundamental Freedoms in El Salvador, UN G.A.O.R., 38th Sess., Supp. No. 47 (A/38/47)(1984) 204; GA Res. 39/119 Situation of Human Rights and Fundamental Freedoms in El Salvador, UN G.A.O.R., 39th Sess., Supp. No. 51 (A/39/51)(1985) 211; GA Res. 46/136 Situation of Human Rights in Afghanistan, UN G.A.O.R., 46th Sess., Supp. No. 49 (A/46/49)(1992) 207; GA Res. 46/136 Situation of Human Rights in Kuwait under Iraqi Occupation, UN G.A.O.R., 46th Sess., Supp. No. 49 (A/46/49)(1992) 207; GA Res. 49/10 The Situation in Bosnia and Herzegovina, UN G.A.O.R., 49th Sess., Supp. No. 49 (A/49/49)(1992) 9; SC Res. 757 (1992), UN S.C.O.R., 47th Sess. (S/INF/48/1992) 13. See generally, Dennis, Michael J., “The Fifty Second Session of the UN Commission on Human Rights” (1997) 91 A.J.I.L. 167, at 167–169Google Scholar; O'Donnell, Daniel, “Trends in the Application of International Humanitarian Law by the United Nations Human Rights Mechanisms” (1998) 38 Int. Rev. Red Cross 481CrossRefGoogle Scholar.
101 See Meron, Theodor, “The Protection of the Human Person under Human Rights Law and Humanitarian Law” (1992) 91(1) Bulletin of Human Rights – Center for Human Rights, Geneva 33, 40Google Scholar.
102 Such, for instance, was the situation with respect to alleged violations by Turkey in Cyprus in 1974, when it refused to apply IHL but was forced to apply the European HR Convention. See Calogeropoulos-Stratis, Aristidis S., “Droit Humanitaire – Droit de l'Homme et Victimes des Conflits Armes” in Swinarski, Christopher, ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva, 1984) 655, 657Google Scholar; See generally on this institutional argument, Quigley, John, “The Relations Between Human Rights and the Law of Belligerent Occupation: Does An Occupied Population Have a Right to Freedom of Assembly and Expression?” (1989) 12 B.C. Int. & Comp. L. Rev. 1, at 27–28Google Scholar. It should be realized however that the ability of human rights monitoring bodies to apply IHL is constrained by lack of expertise and the narrowness of their mandate.
103 See supra text accompanying n. 33–34.
104 The logic behind the supposedly ‘purist’ position that the humanization of war is unwarranted as it may encourage its very occurrence and prolong its duration leads to the absurd conclusion that the road to peace should not be paved by normative attempts to reduce human sufferings. From the perspective of the human subject, and, indeed, of civilized practices, this line of argumentation is far less compelling and reasonable than that offered by the paradigmatic fusion of IHL and IHR law.
105 Stephens, Dale, “Human Rights and Armed Conflict” (2001) 4 Yale H.R. & Dev. L.J. 1, at 8Google Scholar.
106 For example, Article 4(2) of the ICCPR provides that states may not derogate from their obligations with respect to several of the rights, including the right to life; the right not to be subjected to cruel, inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude; the right not to be imprisoned for failure to perform a contractual obligation; the right not to be subject to retroactive penal measures; the right to recognition as a person before the law and the right to freedom of thought, conscience and religion. Cf. European HR Convention, art. 15(2); I/A HR Convention, art. 27(2). On restrictions placed upon the right to derogate, see Human Rights Committee, General Comment General Comment 29, States of Emergency (article 4), UN. Doc. CCPR/C/21/Rev.1/Add.11 (2001).
107 ICCPR, art. 4. Note that the severe nature of situations, which “threaten the life of the nation” has been articulated to include the following accumulative elements: it must be actual or imminent; its effect must involve the whole nation; it threatens the continuance of organized life of the community and, it must be exceptional. See The Greek Case (Denmark, v. Greece), App. Nos. 3321, 2233, 3344/67 12 Y.B. Eur. Con. Hum. Rts. (1969) 72. See also Special Rapporteur (L. Despouy), Tenth Annual Report on Human Rights and States of Emergency, UN Doc. E/CN.4/Sub.2/1997/19 (1997) para. 82; General Comment 29, supra n. 106, at para. 3.
108 See generally UN Secretary-General, Report on the Minimum Humanitarian Standards, UN Doc. E/CN.4/1998/87 (1998) para. 58.
109 European HR Convention, art. 15; I/A HR Convention, Art. 27. See Benvenisti, Eyal, “The Applicability of Human Rights Conventions to Israel and to the Occupied Territories” (1992) 26 (4) Isr. L. Rev. 2, at 29Google Scholar (“The adaptability of these instruments to crisis situations attest that their framers conceived them as applicable to wartime as well”).
110 Quigley, supra n. 102, at 4.
111 See infra, at Part IV.
112 For legal substantiation of the Israeli position, see supra text accompanying n. 35–41.
113 E.g., Geneva IV, art. 38(2), 94, which reflect ‘positive’ rights (obligations to provide medical services and to encourage educational and other cultural pursuits in internment camps), whereas Geneva IV, art. 27 reflects various ‘negative’ rights (e.g., respect for religious convictions).
114 A notion already arrived at by Mill, John Stuart – Mill, J.S.On Liberty, (Hammondsworth, 1974) (1861) 120–122Google Scholar – implying that the process by which the liberal state is realized is also the process by which it disappears: the laissez faire state obliterates itself in a process directed at realizing its principles and the socialist, or welfare, aspect of the democratic liberal state becomes the condition of possibility for its very existence. The practical manifestation of this thinking came into fruition in the attack on freedom of contract and of the sanctity of property rights represented by welfare legislation in the United Kingdom before World War I; by Roosevelt's New Deal in between the wars and by the wealth of the activities of the welfare state following World War II. See generally Ryan, Alan, “Liberalism” in Goodin, Roert E. and Pettit, Pilip, eds. A Companion to Contemporary Political Philosophy (Oxford, Blackwell, 1995) 291Google Scholar.
115 For example, it is difficult to explain in what sense is freedom of expression, a classic political right, more specific than, say, the right to annual leave, a classic socio-economic right. Thus, the notion that both kinds of rights may be formulated in either a specific, or in a general manner, is more accurate.
116 Pictet, supra n. 21, at 34–44. Note, however, that Pictet did not think both regimes apply concurrently. For discussion of the manner of incorporation of IHR norms in IHL, see Dinstein, supra n. 24, at 347.
117 UDHR, art. 8; ICCPR, art. 2,9,14; Geneva III, Part III, Section IV, Ch. III; Geneva IV, art. 43, 78.
118 E.g., the right to a fair trial is guaranteed in UDHR, art. 10 and ICCPR, art. 14, as well as in Geneva III, art. 104–106 and Geneva IV, art. 71–76, 78,128; the protection against double jeopardy is guaranteed in ICCPR, art. 14(7) and in Geneva III, art. 86, Geneva IV, art. 117 and Protocol I, art. 75(4)(h).
119 UDHR, art. 9; ICCPR, art. 9; Geneva III, art. 21; Geneva IV, art. 42, 78.
120 UDHR, art. 5; ICCPR, art. 7; Geneva III, art. 13; Geneva IV, art. 32; Protocol I, art. 75; Protocol II, art. 4.
121 UDHR, art. 2, 7; ICCPR, art. 2, 4; Geneva I, art. 12; Geneva II, art. 12; Geneva III, art. 16; Geneva IV, art. 13, 27; Geneva I-IV, common article 3; Protocol I, art. 75; Protocol II, art. 2.
122 ICCPR, art. 23, 24; ICSECR, art. 10; CRC, art. 2–41; there are many articles in the Geneva Conventions pertaining to this protection, e.g., Geneva IV, art. 24, 27. See generally, Plattner, Denise, “The Protection of Children in International Humanitarian Law” (1984) 24 Int. Rev. Red Cross 140CrossRefGoogle Scholar; Cohn, Ilene, “The Convention on the Rights of the Child: What it Means for Children in War” (1991) 3 Int. J. Refugee L. 100CrossRefGoogle Scholar.
123 UDHR, art. 4; ICCPR, art. 8; Geneva IV, art. 42, 43, 51; Protocol I, art. 4(2)(f).
124 UDHR, art. 18; ICCPR, art. 18; there are many provisions in humanitarian instruments pertaining to this right, e.g., Geneva III, art. 34; Geneva IV, art. 27, 33, 35–37; 38(3), 58, 93; Protocol I, art. 61, 75; Protocol II, art. 4(1), 4(3).
125 ICESCR, art. 12; CEDAW, art. 11, 14(2)(b)1; among the provisions relating to this right in humanitarian instruments are Geneva III, art. 15, 20; Geneva IV, art. 38(2), 56; Protocol I, art. 61; Protocol II, art. 4(2), 17(1).
126 UDHR, art. 23; ICESCR, art. 6; CEDAW, art. 11; Geneva IV, art. 24.
127 UDHR, art. 26; ICESCR, art. 13; CEDAW, art. 14(2)(d); there are various provisions in humanitarian instruments relating to this right, e.g., Geneva IV, art. 40, 94; Protocol I, art. 78(2); article Protocol II, art. 4(3)(a).
128 Neither human rights nor humanitarian instruments establish an absolute guarantee for the right to life, but both include various provisions designed to regulate the conditions under which capital punishment may be imposed. ICCPR, art. 6; Geneva IV, art. 68, 75. Note further that the Protocol I, art. 76–77 and Protocol II, art. 6(4) forbid the carrying out of the death penalty against pregnant women and mothers of small children, a protection also included in article 6(5) of the ICCPR. The right to life is further protected in various IHL instruments in a manner that goes beyond the traditional protection of life as a civil right and more akin to its protection as an economic right, designed to ensure the physical conditions required to be met to sustain life during conflict, e.g., Geneva IV, art. 55; Protocol I, art. 69; ICESCR, art. 11. In the same vein, the rights of the wounded to receive medical care, guaranteed in Geneva I and Geneva II has its far less detailed counterpart in article 12 of the ICESCR.
129 See generally, Doswald-Beck and Vite, supra n. 28, at 105–111; Meron, TheodorHuman Rights in International Strife: Their International Protection (Cambridge, Grotius Pub. 1987) 17–22Google Scholar.
130 See supra text accompanying n. 37–41.
131 Geneva IV, art. 4. According to a literal interpretation, then, only nationals of a state that is bound by the Convention are protected whereas nationals of the state in whose hand they find themselves (and in some cases also nationals of co-belligerent or neutral states) do not enjoy this status. See also Tadic, supra n. 72, at para. 76.
132 i.e., Whether the person is a combatant or a non-combatant, a distinction fundamental to the laws of war. See Nuclear Weapons, supra n. 59, at 257.
133 E.g., ICESCR, art. 2(3); CERD, art. 1(2).
134 Geneva I, art. 12; Geneva, art. 12.
135 Prosecutor v. Delalic, judgment of 16 Nov. 1998, para. 245–265 (ICTY Trial Chamber) [http://www.un.org/icty/celebici/trialc2/judgement/cel-tj981116e-1.htm]; Prosecutor v. Tadic, judgment of 15 July 1999, para. 163–169 (ICTY Appeals Chamber) [http://www.un.org/icty/ tadic/appeal/judgement/tad-aj990715e.htm].
136 Protocol I, art. 43(2).
137 The very same rationale that has eased the threshold of the personal application of IHL accounts for both the expansion of common article 3 in Protocol II, augmenting the humanitarian protection offered in non-international armed conflicts, and eventually, for the lowering of the threshold of IHL's application ratione materiae, leading to the blurring of the distinction between an international and a non-international armed conflict. Significantly, this move was justified by the ICTY in explicit reference to the heavier weight given to the human rights doctrine than to the State sovereignty doctrine. Tadic, supra n. 72, at para. 97. See also Delalic, supra n. 135, at para. 266; Tadic, supra n. 135, at para. 166. Note, however, that the lowering of the threshold for application of IHL might lead in some cases to undesirable results, as governments' propensity to use military force, instead of police force, might increase in situations characterized as ‘armed conflicts’.
138 This indeed was the rationale behind the Turku Declaration of Minimum Humanitarian Standards made by a group of non-governmental experts in Finland in 1990 (see supra n. 94), as it was designed to protect human dignity in situations where there is a discrepancy between the scale of abuse and the apparent lack of rules, particularly in situations of internal violence which fall below the threshold of applicability of IHL but within the margins of public emergency. See Meron, Theodor and Rosas, Allan, “A Declaration of Minimum Humanitarian Standards” (1991) 85 A.J.I.L. 373Google Scholar. This declaration generated the decision by the Sub-Commission on Prevention of Discrimination and Protection of Minorities to transmit the declaration to the Commission on Human Rights “with a view to its further elaboration and eventual adoption” (Res. 1994/26, cited in Report of the Secretary General, supra n. 108, at para. 11). In 1995, the Commission of Human Rights, in Resolution 1995/29 (discussed in Report of the Secretary General, supra n. 108, at para. 11), taking note of the Subcommission resolution, requested that the declaration be sent to governments, international organizations and non-governmental organizations for comments. In 1996, it welcomed an offer by the Nordic countries and the ICRC to organize a workshop to consider the issue. The workshop was held in Cape Town in 1996. For the report of the workshop see UN Doc. E/CN.4/1997/77/Add.1. In 1997 the Commission, in resolution 1997/21 requested the Secretary-General to submit an analytical report on the matter, identifying, inter alia, common rules of IHL and IHR law that are applicable. The report, supra n. 108, having discussed the confluence of both regimes to an extent that seem to cover all situations, further noted the fear that a declaration which states minimum standards would, by implication, diminish standards not included therein, thereby undermining existing rules and that its “text would become bogged down in political disputes”. Ibid., at para. 95. Note further that the ICC Statute has created that bridge at least insofar as crimes against humanity and genocide are concerned.
139 See e.g., Sands, supra n. 60, at 89–91; Shany, Yuval, The Competing Jurisdictions of International Courts and Tribunals (Oxford, Oxford University Press, 2003) 71–72Google Scholar; Rosenne, Shabtai, “The Perplexities of Modern International Law” (2002) 291 Receuil des Cours 9, at 43Google Scholar.
140 Sinclair, Ian McTaggart, The Vienna Convention on the Law of Treaties (2nd ed., Manchester, Grotius Publication, 1984) 96–98Google Scholar.
141 For review of cases, see Shany, supra n. 139, at 68–71, 99–102. But see Las Palermas, Judgment of 4 Feb. 2000, para. 33 (preliminary objections)(I/A CHR)(Human rights court is incompetent to examine compliance with the Geneva Conventions).
142 Nuclear Weapons, supra n. 59, at 240: “The Court observes that the protection of the ICCPR does not cease in times of war, except by the operation of Article 4 of the Covenant whereby certain provisions may be derogated from in times of national emergency”.
145 See Meron, supra n. 26, at 263–276.
146 See Doswald-Beck, Louise, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons” (1997) 316 Int'l Rev. Red Cross 35, at 51Google Scholar; Dinstein, supra n. 24, at 354.
147 As it provides a new benchmark for balancing military necessity, unnecessary suffering and proportionality as against humanitarian considerations. See Stephens, supra n. 105, at 14.
148 See e.g., Furundzija, supra n. 76, at para. 183; Delalic, supra n. 135, at para. 200; Case No. 11.137 Abella v. Argentina, n.1.OEA/Ser.L/V.97, Doc. 38 (I/A Comm'n H.R., 1997) para. 158
149 For a review of such practice by human rights mechanisms the mandate of which includes both IHR and IHL violations (e.g., ONUSAL) as well as by those, which lack such explicit mandate see O'Donnell, supra n. 100.
150 See supra at part I. The two treaties that do not contain jurisdictional clauses are ICESCR and CEDAW.
151 See supra text accompanying n. 42.
152 But see Buergenthal, Thomas, “To Respect and to Ensure: State Obligations and Permissible Derogations” in Henkin, Louis, ed. The International Bill of Human Rights (New York, Columbia University Press, 1981) 72, at 77Google Scholar (arguing that in situations of belligerent occupation the occupied territory should be deemed as part of the State party's ‘territory’ under article 2(1)).
153 This is supported by the principle that text should be construed in a manner which would not result in the redundancy of their terms. Mariposa (U.S. v. Pan.), Award of 27 June 1933, 7 Ann. Dig. (1933–1934) 255, 257 (U.S.-Pan. Claims Comm'n).
154 See Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14–25 June 1993, para. 5, UN. Doc. A/CONF.157/24 (Part I) at 20 (1993).
155 Vienna Convention, art. 31(3)(c).
156 Garner, Bryan A. ed., Black's Law Dictionary (St. Paul, West Group, seventh ed., 1999) 855. Another possible definition is – “the power, right, or authority to interpret, apply, and declare the law”. Merriam-Webster's Dictionary of Law, available through http://dictionary.lp.findlaw.comGoogle Scholar.
157 See e.g., UDHR, art. 14; ICCPR, art. 13; ICESCR, art. 2(3).
158 See e.g., UDHR, preamble; ICCPR, preamble; ICESCR, preamble.
159 See e.g., Saul, supra n. 56, at 580–601.
160 See e.g., UN Charter, art. 55(c); UDHR, preamble.
161 Cf. H.C.J. 320/80, Kawasma v. Minister of Defense, 35(3) P.D. 113, 127 (Opinion of Justice H. Cohn). For discussion of the position of the Israeli Supreme Court regarding the applicability of rule of law standards to government acts or omission in the West Bank and Gaza Strip, see infra Part III, section 6.
162 H.C.J. 102/82, Tsemel v. Minister of Defense, 37(1) P.D. 365.
163 Ibid., at 372–374. For support, see Kelly, Michael J., “Responsibility for Public Security in Peace Operations” in Durham, Helen and McCormack, Timothy L.H., eds. The Changing Face of Conflict and the Efficacy of International Humanitarian Law (The Hague: Nijhoff, 1999) 141, at 154Google Scholar; Roberts, Adam, “What is a Military Occupation?” (1984) 55 B.Y.B.I.L. 249, at 300–301Google Scholar; Benvenisti, supra n. 17, at 4–5; Benvenisti, Eyal, “Responsibility for the Protection of Human Rights under the Interim Israeli Palestinians Agreements” (1994) 28 Is. L. Rev. 297, at 307–309Google Scholar.
164 For example, domestic economic decisions that have international economic implications, and necessarily, global effect upon human conditions, would not bring affected individuals in foreign countries under the jurisdiction of the State in question.
165 International Law Commission, Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts (New York, 2001) 227–228, reprinted in International Law Commission, Report of the Work of its Fifty-third session, U.N. GAOR, 56th Sess., Supp. No, 10, UN Doc. A/56/10 (2001).
166 See infra at Part III, section (e).
167 Such as occupied territories governed by the pre-occupation local law.
168 One could argue however that this position does not necessarily negate the applicability of the conventions to the West Bank and Gaza Strip, as occupied territories are governed by laws promulgated by military commanders, who are State officials. Law promulgated by State officials is arguably State law.
169 Military Commanders in the West Bank and Gaza Strip have issued official proclamations applying certain portions of Israeli legislation to Israeli citizens residing in the Occupied Territories. See e.g., Decree on Local Councils Administration (Judea and Samaria)(No. 892), 1991; Benvenisti, supra n. 17, at 135–139. The enactment of specific laws to govern the rights and obligations of Israeli settlers in the West Bank and Gaza Strip (but not of Palestinians residing in those areas) has been criticized by human rights group, who view such special legal treatment as discriminatory. See e.g., Amnesty International, Israel and the Occupied Territories: The Issue of Settlements must be Addressed according to International Law (London, 2003) http://web.amnesty.org/library/Index/ENGMDE150852003? open&of=ENG-370.Google Scholar
170 See supra text accompanying n. 42.
171 Aust, Anthony, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000) 162–63Google Scholar.
173 Special Rapporteuer (Humphrey Waldock) Sixth Report on the Law of Treaties, UN Doc. A/CN.4/186 and Add. 1–7 (1966), 1966 Y.B. Int'l L. Comm. 51, at 64–66.
175 ILC Final Draft Commentary in Wetzel, Richard G. and Rauschning, Dietrich, The Vienna Convention on the Law of Treaties – Travaux Préparatoires (Frankfurt, 1978) 225Google Scholar.
176 United Nations 1 United Nations Conference on the Law of Treaties – Official Records (New York, 1969) 429Google Scholar (Statement by Sinclair (UK)). It is interesting to note that Sinclair himself later expressed the view that the presumption of territoriality would not encompass humanitarian treaties intended to be of world-wide applicability. Sinclair, supra n. 140, at 91.
177 It could also be noted that CERD provisions involve, to a large degree, positive obligations, which have inherently limited extra-territorial relevance.
178 The discussion that took place before the Human Rights Commission and the 3rd Committee of the General Assembly focused on whether to add or delete the reference to territory, in addition to the reference to jurisdiction. At the end of the day, the view that prevailed was that failure to mention territory might be interpreted as requiring States to ensure the human rights of their nationals abroad in ways other than through regular diplomatic channels. Bossuyt, Marc J., Guide to the ‘Travaux Préparatoires of the International Covenant on Civil and Political Rights (Dordecht, M. Nijhoff, 1987) 53–55Google Scholar. There is no indication that the delegates considered the application of the Covenant to extra-territorial official State acts or to situations of belligerent occupation.
179 See e.g., Schindler, supra n. 47, at 939; Schwelb, supra n. 47, at 863; Meyrowitz, supra n. 47, at 1087. It is also been noted above that the MWC opted for a clearer disjunctive formulation. See supra n. 46. This arguably supports a conjunctive reading of ICCPR, art. 2(1).
180 See e.g., Buergenthal, supra n. 152, at 74–75; Meron, Theodor, “The 1994 U.S. Action in Haiti: Extraterritoriality of Human Rights Treaties” (1995) 89 A.J.I.L. 78, at 79–81Google Scholar; Frowein, Jochen Aber, “The Relationship between Human Rights Regimes and Regimes of Belligerent Occupation” (1998) 28 Is. Y.B. Hum. Rts. 1, at 6Google Scholar; Provost, supra n. 35, at 22; McGoldrick, Dominic, “The Extra-Territorial Application of the International Covenant on Civil and Political Rights” in F. Coomnas and M. Kamminga, eds., The Extra-Territorial Application of Human Rights Treaties (Antwerp, forthcoming in 2004). For the related practice and views of the HRC, see infra.Google Scholar.
181 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, UN. Doc. A/6316 (1966), 999 U.N.T.S. 302 (hereinafter OP).
182 See also Ghandhi, P.R., The Human Rights Committee and the Right of Individual Communication (Aldershot, Hants, England, 1998) 129Google Scholar.
183 Vienna Convention, art. 31(1).
184 Committee on Economic, Social and Cultural Rights, General Comment 1 (Reporting by State Parties), UN Doc, E/1989/22 (1989).
185 Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, art. 14, UN Doc. E/CN.4/1997/105 (1996).
186 See e.g., Paust, Johan J., “Customary International Law and Human Rights Treaties are Law of the United States” (1999) 20 Mich. J. Int'l L. 301, at 323Google Scholar, n. 106; Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl, Germany, Engel, 1993) XIXGoogle Scholar; Meron, Theodor, Human Rights Law-Making in the United Nations (Oxford, Clarendon Press, 1986) 85–86CrossRefGoogle Scholar. But see, Scharf, Michael P., “Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?” (1996) 31 Texas Int'l L.J. 1, at 26Google Scholar (The idea of authoritative weight to be attributed to HRC pronouncements is an ‘overstretch’).
187 Burgos, supra n. 58.
188 Casariego, supra n. 58.
189 Burgos, supra n. 58, at para. 12.2.–12.3; Casariego, supra n. 58, at para. 10.2–10.3.
190 One Committee member in a separate opinion rejected this particular argument. Burgos, supra n. 58, Individual Opinion (Tomuschat); Casariego, supra n. 58 Individual Opinion (Tomuschat). McGoldrick accepts Tomuschat's position on Article 5. Dominic McGoldrick, , The Human Rights Committee: Its role in the Development of the International Covenant on Civil and Political Rights (1994) (paperback reprint 1996) 181Google Scholar. See also Happold, Mathew, “Bankovic v. Belgium and the Territorial Scope of the European Convention on Human Rights” (2003) 3 Hum. Rts. L. Rev. 77, at 89Google Scholar.
191 See McGoldrick, supra n. 190, at 180.
192 For example, the HRC held in 2002, in line with this approach, that Macau – an area which until 1999 was subject to Portuguese administration – was covered until the date of its transfer to China by the ICCPR and OP, notwithstanding the lack of sovereignty by Portugal over the area. See e.g., Comm. no. 925/2000 Koi v. Portugal, UN Doc. CCPR/C/73/D/925/2000 (2002).
193 Burgos, supra n. 58, Individual Opinion (Tomuschat); Casariego, supra n. 58, Individual Opinion (Tomuschat).
194 Burgos, supra n. 58, Individual Opinion (Tomuschat); Casariego, supra n. 58, Individual Opinion (Tomuschat).
195 For support, see McGoldrick, supra n. 190, at 181–82.
196 Vienna Convention, art. 31.
198 Comm. 77/1980 Lichtensztein v. Uruguay, UN Doc. CCPR/C/OP/2 (1990) 102 (Views adopted in 1993); Comm. R.13/57 Vidal Martins v. Uruguay, UN. Doc. Supp. No. 40; A/37/40 (1982) 157; Comm. 106/1981 Montero v. Uruguay, UN. Doc. CCPR/C/OP/2 (1990) 136 (Views adopted in 1983); Comm. 108/1981 Varela Nunez v. Uruguay, UN Doc. CCPR/C/19/D/108/1981 (1983) 225.
199 Lichtensztein, supra n. 198, at para. 6.1; see also Vidal Martins, supra n. 198, at para. 7; Montero, supra n. 198, at para. 5; Varela Nunez, supra n. 198, at para. 6.1.
200 See e.g., Comm. no. 470/1991 Kindler v. Canada, UN. Doc. CCPR/C/48/D/470/1991, para. 6.2 (1993). See also Comm. no. 469/1991 Ng v. Canada, UN. Doc. CCPR/C/49/D/469/1991, para. 6.2 (1994)(Views adopted in 1993).
201 The outer-limit of the jurisdictional reach of the ICCPR was discussed in passing in Quinteros v. Uruguay. In that case the Committee reviewed a communication submitted by the mother of an alleged torture victim, who claimed that both her daughter and herself ought to be viewed as human rights victims – the daughter by reason of the numerous human rights abuses she suffered, and the mother by reason of the mental anguish caused to her by reason of her daughter's disappearance. Acting proprio motu, the Committee noted that the complainant is no longer a Uruguayan resident. It therefore requested her to ascertain that she was subject to the jurisdiction of Uruguay, at the time of the alleged violations. Comm. Quinteros v. Uruguay, U.N. Doc. CCPR/C/ OP/2 at 138, para. 2, 14 (1990)(Views adopted in 1983). This approach is indicative of rejection on the part of the Commission of mere causation as a sufficient jurisdictional link. The victim must be present in the violating State's territory or be subject, in a different way, to that State's control. For support, see W. v. U.K., App. no. 9348/81, 32 Eur. Comm'n H.R. D. & R. (1983) 190 (UK is not responsible for anguish caused to persons within its territory by reason of a murder that occurred outside its territory, without any involvement on the government's part). Still, in Mbenge v. Zaire, the Committee held that faulty trial in absentia proceedings resulting in a death penalty are in violation of the complainant's right to fair trial and to life, notwithstanding the fact that he was no longer a resident of Zaire at the time of the proceedings. Comm. no. 16/1977 Mbange v. Zaire, U.N. Doc. CCPR/C/OP/2 at 76 (1990)(Views adopted in 1983). This decision could imply that jurisdiction may encompass legal, as well as physical presence in the relevant jurisdiction. Similar issues have arisen in two recent cases before the HRC. In one case, an Irish citizen residing in Australia challenged the compatibility of Irish electing laws, which bar non-residents from voting in national elections. Ireland argued that the author of the communication is not subject to its jurisdiction. The case was dismissed however on other grounds. Comm. no. 1038/2001 Colchúin v. Ireland, UN Doc. CCPR/C/77/D/1038/2001 (2003). In another case, an American citizen brought a complaint against Australia for refusing his family migrant visas by virtue of his daughter's medical condition. This case was also dismissed on other grounds and the Committee did not express its opinion on the Australian arguments that the applicant is not subject to its jurisdiction. Comm. 978/2000 Dixit v. Australia, 28 April 2003, UN Doc. CCPR/C/77/D/978/2001 (2003).
202 Concluding Observations of the Human Rights Committee: Yugoslavia. 28 Dec. 1992, para. 8, UN Doc. CCPR/C/79/Add.16 (1992).
203 Concluding Observations of the Human Rights Committee: Cyprus. 21 Sept. 1994, sec. 2, UN Doc. CCPR/C/79/Add.39; A/49/40 (1994). For a similar approach, see Concluding Observations of the Human Rights Committee: Cyprus. 6 Aug. 1998, para. 3, UN Doc. CCPR/C/79/Add.88 (1998).
204 See e.g., Concluding Observations of the Committee on the Elimination of Discrimination against Women: Cyprus. 9 May 1996, UN Doc. A/51/38, at para. 44 (1994); Concluding Observations of the Committee on Elimination of Racial Discrimination: Moldova, 21 May 2002, UN Doc. CERD/C/60/CO/9, at para. 3 (2002).
205 See e.g., Special Rapporteur (Walter Kalin) Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, UN Doc. E/CN.4/1992/26 (1992) at p. 17.
206 Human Rights Committee Summary record of the 1202nd meeting (second part): Croatia, Yugoslavia, 15 April 1993, UN Doc. CCPR/C/SR.1202/Add.1 (1993), at para. 23.
207 Human Rights Committee, General Comment No. 31 on Art. 2 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), 29 April 2003, UN Doc. CCPR/C/74/CRP.4/Rev.6. (General Comments)(2004).
208 It should be noted that European HR Convention, art. 56 authorizes parties to apply, by way of notification, the Convention for all “all or any of the territories for whose international relations it is responsible”. However, in Loizidou the Court held that this provision does not restrict the application of the Convention with respect to extra-territorial acts committed by State organs. Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser A)(1995) 23.
209 Cyprus v. Turkey, App. 6780/74, 6950/75,  Y.B. Eur. Conv. H.R. 82, 112, reprinted in 62 I.L.R. (1982) 83, 86.
210 The Commission reached a similar outcome with respect to another complaint presented by Cyprus against Turkey in 1977. In its 1983 report the Commission held that Turkey's conduct in Northern Cyprus was in breach of numerous of its human rights obligations. App. No. 8007/77, Cyprus v. Turkey, 72 Eur. Comm'n H.R. Dec. & Res. (1992) 5, 23–24 (Report issued in 1983). It is interesting to note that the Council of Ministers, which reviewed the Commission's 1976 and 1983 reports, adopted a more cautious approach which emphasized the need for the parties to try to resolve their differences through political means. Council of Europe Committee of Minister Resolution DH (79), 20 Jan. 1979, 22 Y.B. Eur. Conv. H.R. (1979) 440; Council of Europe Committee of Minister Resolution DH (92), 2 April 1992,35 Y.B. Eur. Conv. H.R. (1992) 229. See also Chrysostomos v. Turkey, App. 15299/89, 86 Eur. Comm'n H.R. Dec. & Res. (1993) 4, 25–27.
211 Loizidou, supra n. 208, at para. 62.
214 Loizidou u. Turkey, 1996–VI Eur. Ct. H.R. 2216, 2235–2236.
216 Cyprus v. Turkey, 2001–IV E.C.H.R. 1.
217 It should be noted that Turkey withdrew from the proceedings before the Court. However, the Court examined the objections it raised in the first stage of proceedings before the European Commission of Human Rights.
218 Cyprus v. Turkey, supra n. 216, at 25.
219 Bankovic, supra n. 48.
222 Ibid., at para. 75. The Court referred to the formulation found in Common article 1 to the Four 1949 Geneva Conventions as an example of an open-ended formulation, which the drafters of the European HR Convention would have used had they desired to attain the effect advocated by the applicants. See e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 1, 75 U.N.T.S. 31 (“To respect and to ensure respect for the present Convention in all circumstances”).
223 Loizidou, supra n. 208, at para. 62.
224 It is perhaps ironic that the Court uses the term ‘vacuum’ in its decision in order to support the conclusion that the Convention cannot be construed in detachment from other rules of international law, including rules limiting the exercise of extra-territorial jurisdiction in the territory of foreign States. Bankovic, supra n. 48, at para. 57.
225 See Happold, supra n. 190, at 88 (the distinction resorted to by the Court is ‘distasteful’) Cf. Burgos, supra n. 58, at para. 12.2.–12.3; Casariego, supra n. 58, at para. 10.2.–10.3 (referring to the ‘unconsciousable’ nature of such distinctions).
226 Bankovic, supra n. 48, at para. 75 (“the positive obligation in Article 1… [cannot] be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question”). For more criticism, see Alexandra Ruth and Mirja Trilsch, “Bankovic v. Belgium (Admissibility). App. No. 52207/99” (2003) 97 A. Soc. I. L. 168, at 172.
227 See supra discussion of the Uruguayan Passport cases. These cases are also supported by Strasbourg case law. See App. no. 1611/62, X v. F.R.G., 8 Y.B. Eur. Conv. H.R., (1965) 158 (acts of consular officials abroad could generate responsibility under the Convention).
228 Bankovic, supra n. 48, at para. 73.
230 See Happold, supra n. 190, at 82–83, 88; Ruth and Trilsch, supra n. 226, at 171. In much the same way and for much the same reasons it remains important to distinguish between jus ad bellum and jus in bello.
231 Bankovic, supra n. 48, at para. 60, 70–71. Other exceptions recognized by the Court had been official acts of diplomats abroad and acts taking place on board vessels or aircrafts belonging to the State in question. Ibid., at para. 73.
232 Ocalan v. Trukey, Judgment of 12 March 2003, para. 93 (ECHR). One could perhaps speculate that the fact that Ocalan was a Turkish citizen influenced the willingness of the Court to accept jurisdiction over his extra-territorial detention, although there is nothing in the language of the judgment to confirm this.
233 Issa v. Turkey, Dec. no. 31821/96, 30 May 2000. The Court in Bankovic noted however that jurisdiction was not challenged in Issa – a fact detracting from its precedental value. Bankovic, supra n. 48, at para. 81. See also Xhavara v. Italy, Dec. no. 39473/98, 11 January 2001 (enforcement action in the high seas, in pursuance to an agreement between two member States, is covered by the Convention); X v, Austria, App. No. 2547/65, 9 Y.B. Eur. Conv. H.R. (1966) 458 (arrest of person by State agents in the territory of foreign country could fall under the Convention).
The case Ilascu v. Moldova, Dec. no. 48787/99, 4 July 2001, is particularly interesting as it addresses the responsibility of a State (Moldova) for alleged violations occurring in territory over which it no longer exercises effective control (the Transdniestria region, which seceded de facto from Moldova in 1990). It also addresses the level of control required to impute to a State (Russia) effective control over another State's territory. While the Court accepted jurisdiction over the case it refrained from ruling upon the central jurisdictional issues, as it held that they are intimately related to the merits of the case, and will be adjudicated in the merits stage. In its decision of 8 July 2004, the Court held that Moldova failed to adequately pursue its positive obligations to ensure the prevention of violations in its sovereign areas no longer under its effective control and that Russia, by virtue of its decisive influence over the seceding area also incurs responsibility for human rights violations perpetrated there. On the other hand, in Drozd and Janousek, the ECHR held that participation of French and Spanish judges in judicial proceedings taking place in Andorra falls outside the ECHR's jurisdiction, as Andorra is not a party to the European HR Convention and since the judges do not sit in Andorra as members of the French or Spanish judiciary, but rather of the Andorran judiciary. Drozd v. France, Eur. Ct. H.R. (Ser. A) no. 240 (1992). However, we believe that the dissent, arguing that Spain and France must be collectively held responsible for the application of the Convention in Andorra, is far more persuasive. Ibid., Joint Dissenting Opinion (Pettiti, Valticos and Lopes Rocha, approved by Walsh and Spielmann). For support, see X v. Switzerland, App. nos. 7289/75 and 7349/76, 9 Eur. Comm'n H.R.D. & R. (1977) 57 (Switzerland incurs responsibility for measures made legally applicable in Liechtenstein – then, a non-member country). But Cf., Hess v. U.K., App. no. 6231/73, 2 Eur. Comm'n H.R.D. & R. (1975) 72 (the UK does not incur responsibility for alleged violations in prison governed by three of the four occupying forces in Berlin).
234 On matters pertaining mainly to extradition and deportation, see e.g., Soering v. UK, 161 Eur. Ct. H.R. (Ser. A) (1989); D v. UK, 1997–III E.H.R.R..777.
235 American Declaration of the Rights and Duties of Man, 30 April, 1948, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992). In contrast, article 1 of the Inter-American Human Rights Convention adopts a “persons subject to their jurisdiction” standard. American Convention on Human Rights, 22 Nov. 1969, 1144 U.N.T.S. 123. Since the US has not ratified the Convention, the I/A HR Comm'n's jurisdiction over it is limited to the 1948 Declaration.
236 Report No. 109/99, Coard. v. the United States, 29 Sept. 1999, para. 37 [http://www.cidh.oas.org/annualrep/99eng/Merits/UnitedStates10.951.htm">http://web.amnesty.org/library/Index/ENGMDE150852003? open– Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000) 162–63.
237 Report No. 51/96, Haitian Centre for Human Rights v. U.S., 13 March 1997, [http://www.cidh.oas.org/annualrep/96eng/USA10675.htm].
238 Report No. 31/93, Salas v. U.S., 14 Oct. 1993, [http://www.cidh.oas.org/annualrep/93eng/USA.10573.htm] (finding the petition admissible).
239 Inter-American Commission on Human Rights Second Report on the Human Rights Situation in Suriname, OEA/Ser.L/V/II.66, doc. 21, rev. 1 (1985), [http://www.cidh.oas.org/countryrep/Suriname85eng/chap.5.htm].
240 Basic Law: Judicature, 1984, art. 15(c), 38 S.H. (1983–1984) 101, 104, provides that the Supreme Court of Israel may also sit as a High Court of Justice and ‘when so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of any other court.
241 Customary law is part of Israeli law, subject to conflicting legislation. Cr.A. 174/54 Shtampfer v. Attorney-General, 10 P.D. 5; Cr. A. 336/61 Eichmann v. Attorney-General, 16 P.D. 2033. However, courts ought to construe legislation in accordance with both customary and treaty law. See e.g., A.C.D. 7048/97 Anonymous Persons v. The Minister of Defense 54(1) P.D. 721; H.C.J. 2599/00 Yated v. Ministry of Education, 56(5) P.D. 834.
242 H.C.J. 910/86, Ressler v. Minister of Defense, 42(2) P.D. 441, 477. An English translation is available in [http://22.214.171.124/files_eng/86/100/009/z01/86009100.z01.HTM], at para. 36.
243 Ibid., at 478–483 (para. 36–46). According to the HCJ's jurisprudence, a decision is reasonable if it has taken into consideration all the relevant interests and values, and only such interests and values, according an appropriate weight to each. See e.g., H.C.J. 389/90 Dapey Zahav v. Broadcasting Authority, 35(1) P.D. 421, 445–446. This view has attracted considerable criticism rooted in diverse opinions about the proper role of the judiciary in a democracy. See e.g., H.C.J. 1635/90, Zharzhevski v. Prime Minister, 45(1) P.D. 744 (Opinion of Elon, J.); Landau, Moshe, “On Justiciability and Reasonableness in Administrative Law” (1989) 14 I'yuney Mishpat 5Google Scholar [in Hebrew]; Gavison, Ruth, Kremnitzer, Mordechai and Dotan, Yoav, Judicial Activism: For and Against (Jerusalem, Magnes Press, The Hebrew University of Jerusalem, 2000) 85, at 92–157Google Scholar [in Hebrew]; Shamir, Ronen, “The Politics of Reasonableness” (1994) 5 Teoria VeBikoret 7Google Scholar [in Hebrew]; Menahem Mautner, “The Reasonableness of Politics” ibid., at 25 [in Hebrew]; Barak-Erez, Daphne, “The Justiciability of Politics” (1999) 8 Plilim, at 369–387Google Scholar [in Hebrew]. For a general review of the justiciability doctrine in the Israeli legal system in general and in matters pertaining to security issues in particular, see Ben-Naftali, Orna and Michaeli, Keren R., “Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel's Policy of Targeted Killings” (2003) 1(2) J. Int. Crim. L., at 368, 373–382Google Scholar.
244 Derrida, Jacques, “Force of Law: ‘The Mystical Foundation of Authority’” (1990) 11 Cardozo L. Rev. 921, at 925Google Scholar (“…the word enforceability reminds us that there is no such thing as a law that doesn't imply in itself, a priori… the possibility of being enforced. There are, to be sure, laws that are not enforced, but there is no law without enforceability”).
245 Already in 1967 the then Chief Military Attorney and Legal Adviser to the Defense Ministry (and subsequently, Attorney-General of Israel, and Chief Justice of the Supreme Court), Meir Shamgar, believing that there is a need for a civil authority competent to deal with complaints of the occupied population against the military government, acted to subject the latter to the supervision of the Supreme Court. Shamgar noted that the decision has been “unprecedented in international practice”. See Shamgar, supra n. 17, at 273. It should be noted that the Court explicitly stated that had the Israeli government challenged the Court's jurisdiction over such matters, it might have prevented further litigation. See H.C.J. 302/72 Hilu v. Government of Israel, 27(2) P.D. 169. As no such challenge was voiced, the legal review of the IDF's actions in the occupied territories has become a fait accompli. See Varshavski, L., “Institutional Practices and Human Rights: the Hidden and the Evident in the Judgments of the HCJ,” (2003) 10 The Periodical for Political Science and International Relations. 43, at 47Google Scholar [in Hebrew]. See generally, Hofnung, Menahem, “Human Rights in the Occupied Territories” in Noeberger, Benyamen and Ben-Ami, Ilan, eds., Democracy and National Security in Israel (Tel Aviv, The Open University, 1996) 535–549Google Scholar.
246 H.C.J. 320/80 Kawasma v. The Minister of Defense, 35(3) P.D. 113, 127 (Opinion of H. Cohn, J.). See also, H.C.J. 393/82 Almalmon v. the Commander of the IDF, 37(4) P.D. 785, 811–812.
247 A comprehensive view of the context should further take into account that there are ways other than rendering a judicial decision by which the HCJ may be involved, and that these mostly hidden ways may, in practice, contribute to the protection of human rights in the occupied territories to an extent far greater than the one disclosed in the decisions: the Court facilitates the reaching of agreements between governmental authorities and the petitioners and indeed serves as a communication link when most other such avenues do not exist. This role explains why many Palestinians continue to resort to the Court despite the fact that very few of their appeals are accepted as a matter of official record as, in this manner, the Court is able to satisfy the petitioners without exposing itself to public and political wrath. Dotan, Yoav, “Judicial Rhetoric, Government Lawyers and Human Rights: the Case of the Israeli High Court of Justice During the Intifada” (1999) 33 Law and Society Rev. 319CrossRefGoogle Scholar; Varshavski, supra n. 245, at 50–51. A relatively recent example may be found in the appeal against the IDF's practice of using Palestinians as human shields. The IDF's response to the appeal contained a commitment to cease the contested policy, thereby preempting a potential judicial order to do so. See H.C.J. 3799/02 Adallah v. Chief of Staff, Petition submitted on 5 May 2002, available at [http://www.acri.org.il/hebrew-acri/engine/story.asp?id=429] [in Hebrew and English]. In another recent example the petitioners asked the Court to issue a Habeas Corpus order and require that the military commander explain why he has not informed family members of a detainee as to the latter's fate. Only after the petition was submitted, did the Respondent notify the family of the whereabouts of the detainee. Pursuant to this response, the petitioners withdrew their petition, but requested that the Respondent pay expenses, a request that was granted. See H.C.J. 9332/02 Jerar v. The IDF Commander in the West Bank (not yet published).
248 See e.g., H.C.J. 4016/02 Barghouti v. State of Israel (Decision of 10 May 2002; not yet published). H.C.J. 3022/02 Canon (Law) The Palestinian Society for the Protection of Human Rights and the Environment v. The IDF Commander in the West Bank 56(3) P.D. 9.
249 E.g., H.C.J. 390/79 Dawikat v. The Government of Israel, 34(1) P.D. 1 (The appeal related to the legality of the establishment of a civilian settlement on the private property of the petitioners. The appeal was accepted on the grounds that the Hague Regulations includes the right to private property); H.C.J. 8990/02 Physicians for Human Rights v. Chief Commander – South Command (not yet published)(A petition to forbid the use by the IDF of “fletchette” artillery shells on the grounds that they defy the principle of distinction and cause disproportionate harm. The appeal was rejected).
250 E.g., H.C.J. 2/79 El Assed v. The Minister of the Interior 34 (1) P.D. 505 (the petition requested permission to publish an Arab periodical and the petition was granted making scant reference to the principle of freedom of expression); H.C.J. 792/88 Matur. v. The IDF Commander in the West Bank, 43(3) P.D. 542 (The petition concerned deportation orders. The Court, observing that deportation is a severe sanction as it offends a fundamental human right, rejected the appeal on the grounds of security considerations); H.C.J. 168/91 Morcus v. the Minister of Defense, 45(1) P.D. 467 (the Court accepted the petition which concerned the fact that gas masks were distributed to the Israeli inhabitants of the West Bank but not to the Palestinian inhabitants, grounding the decision in the principle of equality, but without detailing its normative source).
251 E.g., H.C.J. 3451/02 Almadani, v. The Minister of Defense, 56(3) P.D. 30 (The petition concerned the supply of water and food to Palestinian civilians who were in the Church of the Nativity during operation Defensive Shield. The petition was rejected in reference to IHL and to the values of Israel as a Jewish and democratic state); H.C.J. 2936/02 Physicians for Human Rights v. The IDF Commander in the West Bank, 56(3) P.D. 3 (The petition challenged the IDF's treatment of medical personnel during operation Defensive Shield and the Court stated that the IDF is bound by IHL, as is required by international law as well as by the values of the State as a Jewish and democratic state); Almalmon, supra n. 246 (The appeal concerned the confiscation of private property in order to build roads, and the Court, having observed that “every Israeli soldier carries in his backpack the norms of customary public international law which deal with the laws of war as well as the basic norms of the Israeli administrative law” (unofficial translation); Ibid., at 810; proceeded to apply the Hague Regulations and reject the petition).
252 E.g., H.C.J. 13/86 Shahin v. The IDF Commander of the West Bank, 41(1) P.D. 197 (The petition concerned, inter-alia, the right to marry and create a family. The petitioners relied on an opinion by Prof. Dinah Shelton who stated that these rights are recognized under international human rights law. Having noted that the supporting opinion “almost does not attempt to deal with the legal question – which carries the decisive weight in the circumstances – how is her thesis influenced by the fact that at issue is an area held under belligerent occupation” (unofficial translation)(ibid., at 205), J. Shamgar does not deal with that question either. Instead, he assumes for the purposes of the discussion that IHR documents are applicable, refers to the UDHR, the ICCPR as well as to other IHR instruments only to decide that they are irrelevant to the case at hand. In H.C.J. 591/88 Taha. v. The Minister of Defense, 45(2) P.D. 45, Levin J., rejected the petitioners reliance on the UDHR to challenge the order of the military commander imposing collective responsibility, stating that the UDHR reflects neither customary nor conventional international law.
253 E.g., H.C.J. 5100/94 Public Committee Against Torture in Israel v. The Government of Israel, 53(4) P.D. 817. This case concerned the interrogation methods used by the GSS, and the Court noting that human dignity includes the dignity of a person subject to interrogation, and that the use of brutal or inhuman means of interrogation is forbidden under Israeli law, proceeded to mention that “this conclusion is in accordance with conventional international law – to which Israel is a party – which forbids the use of torture, cruel or inhuman treatment or degrading treatment”. Interestingly, reference in this instance was made to literature (Rodley, Nigel S., The Treatment of Prisoners Under International Law (Paris, Claredon Press, 1987) 63Google Scholar; Evans, M. and Morgan, R., Preventing Torture (Oxford, 1998) 61)Google Scholar but no explicit reference to the CAT or to other relevant IHR instruments was provided. Ibid., at para. 23. See also Anonymous, supra n. 241, in which the Court accepted the petitioner's claim that the holding of people as bargaining chips is illegal. Here too the prohibition was derived at from the application of Israeli detention Law, interpreted in the light of the Basic Law: Human Dignity and Liberty, and the scant reference to international law in general and to the Convention Against the Taking of Hostages (International Convention Against the Taking of Hostages, 18 Dec. 1979, 1316 U.N.T.S. 205) and IHL in particular, read as follows: “…The holding of persons as ‘hostages’ – and this term includes the holding of persons as ‘bargaining chips’ – is forbidden by international law… Indeed, I am willing to assume, without deciding on the issue – that there is no such prohibition under customary international law. I am further willing to assume – without deciding on the matter – that the conventional prohibition against the taking of hostages does not bind the State of Israel in the domestic law of the state in the absence of an incorporating legislation. Be that as it may, there is a presumption that the purpose of a law is, inter alia, to realize the provisions of international law and not to contradict them…there is a ‘presumption of compatibility’ between public international law and the domestic law… the application of the presumption in the circumstances of the case, strengthen the tendency detected in reference to the objective purpose of the law” (unofficial translation). Ibid., at para. 20. It should be noted however that both cases pertained to individuals detained in Israel.
254 In H.C.J 7015, 7019/02 Ajouri v. The IDF Commander in the West Bank, 56(6) P.D. 352 (Barak, J. having established that IHR law recognizes distinctions between the displacement of a person due to combat activities and displacement occasioned by natural disaster, proceeds to state that in the former case the applicable law is IHL). An English version of the judgment is available at [http://126.96.36.199/files_eng/02/150/070/a15/02070150.a15.HTM]. Two additional recent cases deal with conditions in detention centers where Palestinian suspects were held: The first case – H.C.J. 3278/02 The Center for the Defense of the Individual v. The IDF. Commander in the West Bank, 57(1) P.D. 385, dealt with the conditions of detention of thousands of Palestinians in provisional facilities and in the ‘Ofer’ detention center in the West Bank. In rejecting the appeal the Court (Barak, J.,) having observed that the Court does not have to decide whether or not Basic Law: Human Dignity and Liberty applies, as it is sufficient that Israeli administrative law applies, stated that the starting point for the discussion is the balancing point between the liberty of the individual and the security of the collective, citing the relevant provisions of the ICCPR and noting their customary status. He then proceeded to state: “[i]n addition to these principles, we must consider the principles and regulations set forth in the Fourth Geneva Convention” (Ibid., at para. 25). an English version of the judgment is available at [http://188.8.131.52/Files_ENG/02/780/032/a06/02032780.a06.HTM]. In the second cases – H.C.J. 5591/02 Yassin. v. Ben-David, the Military Commander of Ketziot Detention Center, 57(1) P.D. 403 the Court reviewed the conditions of detention of Palestinian detainees in the Ketziot detention center. Again, Barak J., noting that “[t]he detainees were duly deprived of their liberty. They were not stripped of their humanity” (ibid., para. 8), detailed the applicable normative structure: the Basic Law: Human Dignity and Liberty (note that whether or not the Basic Law applies was not an issue in this case, as ‘Ketziot’, unlike ‘Ofer’ is located within the Green Line); the values of Israel as a Jewish and democratic state; the ICCPR. In this context, Barak observed: “Israel is not an isolated island. She is a member of an international system, which has provided for standards regarding detention conditions. The most significant of these may be found in article 10(1) of the International Covenant on Civil and Political Rights (1966)” (ibid., at para. 11) and, Geneva IV (ibid., para. 12). He then proceeded to apply the latter's provisions and rejected the appeal. An English version of the judgment is available at [http://184.108.40.206/Files_ENG/02/910/055/a03/02055910.a03.HTM]. It should be noted that in both the ‘Ofer’ and ‘Ketziot’ cases the Court criticized the initial detention conditions in the camps and characterized them as unlawful. It also required some improvements in the current conditions of detention.
255 H.C J. 3239/02 Mar'ab. v. The IDF Commander in Judea and Samaria (not yet published).
256 Human Rights Committee, General Comment 8, Article 9 (Sixteenth session, 1982), U.N. Doc. HRI/GEN/l/Rev.1 at 8 (1994).
257 Brogan v. United Kingdom, 11 E.H.R.R. (1989) 117; McGoff v. Sweden 8 E.H.R.R. (1986) 246 De Jong v. Netherlands 8 E.H.R.R. (1986) 20; Duinhoff v. Netherlands 13 E.H.R.R. (1991) 478; Koster v. Netherlands 14 E.H.R.R. (1992) 396; Aksoy v. Turkey 23 E.H.R.R. (1996) 533.
258 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 9 Dec. 1988, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).
259 Mar'ab, supra n. 255, at para. 27 (Citing Rodley, Jacobs, White and others).
260 See Barak, Aharon, “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002) 116 Harvard L. Rev. 16Google Scholar.
261 See e.g. ibid., at 153–55: “Democratic nations should conduct the struggle against terrorism with a proper balance between two conflicting values and principles. On the one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights are not a stage for national destruction… But on the other hand, we must consider the values and principles relating to human dignity and freedom. National security cannot justify undermining human rights in every case and under all circumstances… Any balance that is struck between security and freedom will impose certain limitations on both”. See also H.C.J. 7015/02 Ajuri v. IDF Commander in the West Bank, supra 254. “A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State. It provides a reason for its struggle”. Ibid., at para. 41 (Barak J.).
262 See supra Part II(4).
263 See supra text accompanying n. 162–163.
264 See Benvenisti, supra n. 163, at 313. Cf. Concluding Observations of the Human Rights Committee: Lebanon, 1 April 1997, UN Doc. CCPR/C/79/Add.78, at para. 4–5 (1997); Concluding Observation: Cyprus (1994), supra n. 203; Concluding Observation: Cyprus (1998), supra n. 203; Concluding Observation: Cyprus (1994), supra n. 204.
265 See Benvenisti, supra n. 163, at 312.
266 Geneva IV, art. 47. For discussion of Geneva IV, art. 6, see Roberts, supra n. 17, at 55–57.
267 Ajuri, supra n. 254.
268 Roberts, supra n. 17, at 71.
269 The Commentary to the Geneva IV states: “…if the Occupying Power is victorious, the occupation may last more than a year, but as hostilities have ceased, stringent measures against the civilian population will no longer be justified.” Pictet, supra n. 99, at 63.
270 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, 4 Dec. 1998, para. 6, UN Doc. E/C.12/1/Add.27 (1998). See also CESCR Summary Record, supra n. 14, at para. 40, 46. The CERD Committee also hinted that the creation of the PA might affect the scope of Israel's obligations under the Convention. CERD Concluding Observations (1998), supra n. 14, at para. 6 (“The Committee takes note of the establishment of the Palestinian Authority, which has certain responsibilities in parts of the Occupied Palestinian Territory”). Cf. Concluding Observations of the Human Rights Committee: Moldova, 26 July 2002, UN Doc. CCPR/CO/75/MDA, at para. 4 (2002); Concluding Observations: Lebanon, supra n. 264, at para. 4–5.
271 Response to List of Issues, supra n. 13, at Part A1.
272 Director-Generals of the Justice and Foreign Ministries, Letter to the Chairperson of the Committee on Economic, Social and Cultural Rights, 28 Dec. 1998, para. 5, reprinted in State of Israel, First Report on the Implementation of the International Covenant on Economic, Social and Cultural Rights (2001) 269 [in Hebrew].
274 See supra n. 63.
275 Benvenisti, supra n. 163, at 314–316.
276 Secretary-General, supra n. 108, at para. 59–65; Shelton, Dinah, “Protecting Human Rights in a Globalized World” (2002) 25. B.C. Int'l & Comp. L. Rev. 273, at 282–286Google Scholar; Benvenisti, supra n. 163, at 310–311.
277 Concluding Observations of the Human Rights Committee: Portugal, 4 Nov. 1999, UN Doc. CCPR/C/79/Add.115, at para. 3 (1999). See also Concluding Observations of the Human Rights Committee: Portugal, 5 May 1997, UN Doc. CCPR/C/79/Add.77, at para.4 (1997); Statement of the Chairperson on behalf of the Human Rights Committee in Concluding Observations of the Human Rights Committee: UK (Hong-Kong), 9 Nov. 1995, UN Doc. CCPR/C/79/Add.57 (1995).
278 See supra Part III (2).
279 See supra Part III(3)(a)-(d).
280 See supra text accompanying nn. 78–95.
281 See supra Part III(3) (e) and supra text accompanying fn. 142–149.
282 See supra Part III(3)(f).
283 See supra Part III(4).
284 See supra text accompanying fn. 268–269.
285 See supra Part II.
286 See supra text-accompanying n. 17.
287 See supra Part II(4).
288 See supra Part III(f). See also Kathleen, A.Cavanaugh, “Theoretical and International Framework: Selective Justice, the Case of Israel and the Occupied Territories” (2003) 26 Fordham Int. L. J. 934Google Scholar.
289 The term “laws of war” often referred to as “The Hague Law” pertains to a series of conventions from 1868 to 1907. See e.g., Declaration of St. Petersburg, 29 Nov. 1968, reprinted in 1 The Law of War: Documented History (Friedman, Leon ed., 1972) 192Google Scholar; Hague Convention No. II with Respect to the Laws and Customs of War on Land (and Annexed Regulations), 29 July 1899, 32 Stat. 1803, T.S. No. 403; Hague Convention No. III Relative to the Opening of Hostilities, 18 Oct. 1907,36 Stat. 2259, T.S. No. 538; Hague IV. See Pictet, Jean, Developments and Principles of International Law (Dordecht, M. Nijhoff, 1985) 49–58Google Scholar; Kalshoven, Frits and Zeveld, L., Constraints on the Waging of War (Geneva: ICRC, 3rd, 2001) 19–25Google Scholar. This law, as distinct from the Law of Geneva, concerns itself primarily with the regulation of belligerent conduct during warfare. Currently, the Hague and the Geneva Law are considered inseparable, thus forming “one single complex system, known today as international humanitarian law” (Nuclear Weapons, supra n. 59 at 256), rendering the distinction between them obsolete especially in view of their integration into Protocol I. Still, the distinction is warranted in some cases where it is necessary to identify the different historical origin of the norm.
290 Furund, supra n. 76, at para. 183; Delalic, supra n. 135, at para. 200; Abella, supra n. 148, at para. 158; Meron, supra n. 26, at 266.
291 See e.g., Playfair, Emma, “Playing on Principle? Israel's Justification for its Administrative Acts in the Occupied Territories” in Playfair, Emma, ed. International Law and the Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip (Oxford, Clarendon Press, 1992) 205, at 216Google Scholar; Benvenisti, supra n. 109, at 31.
292 See Hague Regulations, art. 48–49, 51–52.
293 Nuclear Weapons, supra n. 59, at 240.
294 For example, concerns regarding the legitimacy of imposing IHR law on the local population could be mitigated through consultations with representatives of the local population related to the method of introducing IHR law. See e.g., Playfair, supra n. 291, at 223. Similarly, the extent of the obligation of the occupier to invest resources in the occupied territories should be read in the light of the relative nature of economic and social rights. ICESCR. art. 2(1).
295 See also Meron supra n. 26; Kalin, Walter “The Struggle against Torture” (1998) 324 Int. Rev. Red Cross, 433, 434Google Scholar; Peterson, supra n. 29, at 33–43; Benvenisti, supra n. 109, at 32.
296 The Commentary to the Geneva Protocols states that: “Those who belong to armed forces or armed groups may be attacked at any time”. Pillaud, C. (ed.) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 (Geneva, 1987) 1453Google Scholar.
297 Geneva IV, art. 78(1); UDHR, art. 13(1); ICCPR, art. 12(1).
298 A useful analogy can be found in domestic law dealing with conflicting norms of two or more jurisdictions. US courts have adopted a very narrow definition of what constitutes such conflicts. Hartford Fire Insurance Co. v. California, 509 U.S. 764, 798–799 (1993)(conflict arises only when conduct mandated by one jurisdiction is prohibited by the other).
299 See especially Vienna Convention, art. 31(3)(c). See also discussion supra text accompanying nn. 139–140.
300 See e.g., Geneva IV, art. 83–141.
301 See e.g., Geneva IV, art. 5, 68, 78. For discussion of the Nuclear Weapons case which supports our approach, see supra text accompanying nn. 143–149. It should be noted that Frowein argues that the harmonization approach does not apply with regard to rights drafted in absolute terms, such as the prohibitions against torture and slavery. Frowein, supra n. 180, at 12. To the extent that these rights are non-derogable, they will indeed continue to fully apply in situations of armed conflict (or belligerent occupation). However, IHL would still assist in interpreting what constitutes ‘torture’ or ‘slavery’.
302 See e.g., Geneva IV, art. 35, 48, 49.
303 See generally, Ni-Aolain, Fionnuala, “The Relationship between Situations of Emergency and Low-Intensity Armed Conflict” (1998) 28 Is. Y.B. Hum. Rts. 97Google Scholar.
304 See General Comment 29, supra n. 106, at para. 3, 9, 11, 16.
305 See Geneva IV, art. 71–75. A more comprehensive list of guarantees is found under Protocol I, art. 75.
306 Furundzija, supra n. 76, at para. 143–163.
307 See e.g., Geneva IV, art. 5, 147. See also Geneva III, art. 130.
308 ICESCR, art. 12; Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, UN. Doc. E/C. 12/2000/4 (2000).
309 See e.g., Human Rights Committee, General Comment 18, Non-Discrimination (1989), UN. Doc. HRI/GEN/1/Rev.1 at 26 (1994).
310 See Franck, Thomas M., The Power of Legitimacy among Nations (New York, Oxford University Press, 1990) 43–49Google Scholar.
311 See supra n. 73. For a comprehensive discussion of the legality of the targeted killings see Ben-Naftali and Michaeli, supra n. 17.
312 This situation regarding both categories is regulated entirely by IHL. For the right to target combatants, see supra n. 297. The test applicable to the determination of whether or not a civilian's action amount to “the taking of a direct part in the hostilities” (Protocol I, art. 51(3)) is whether his activities, “by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces” and whether they present an immediate threat to the adversary. See Pillaud, supra n. 297, at 619.
313 This conclusion emanates from the principle of distinction that informs IHL. See e.g., Geneva I-IV, art. 3; Protocol I, art. 48; Protocol II, art. 4, 13.
314 See ICC Statute, art. 8(2)(e)(i), 8(2)(c)(i), 8(2)(c)(iv). Also see Momtaz, Djamchid, “War Crimes in Non-International Armed Conflicts Under the Statute of the International Criminal Court” (1999) Y.B. Int'l Humanitarian L. 177, at 185Google Scholar.
315 This conclusion too emanates from the principle of distinction: The exception which allows for the targeting of civilians who take part in hostilities during combat should be narrowly construed: its rationale is that during combat they pose a threat to the adverse party. So long as that threat is neither imminent nor severe, a civilian is not a legitimate target and alternative means to prevent the threat from materializing should be pursued. See Fleck, supra n. 39, at 211.
316 As they are considered civilians, the rules cited in supra n. 315 apply.
317 It should be noted that a failure to follow these guidelines does not necessarily amount to a criminal act, as the customary laws of war permit the targeting of combatants without imposing such conditions once the requirements of necessity and proportionality are met. It could, however, entail Israel's international responsibility. See Ben-Naftali & Michaeli, supra n. 17 at 290.
318 See e.g., ICCPR, art. (1); HRC, General Comment 29, supra n. 106, at para. 4.
319 See Ben-Naftali and Michaeli, supra n. 17 at 187–292. Note that indiscriminate attacks against protected persons fall both under article 8(2)(c)(1) and article 8(2)(e)(i) of the ICC statute.
320 See supra n. 73.
321 Legal Consequences of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. (forthcoming)(Hereinafter: OPT Wall)Google Scholar.
322 The article was written during the summer of 2003 and accepted for publication some 9 months prior to the date of the delivery of the Advisory Opinion.
323 The critical review of the Opinion is by no means exhaustive. Indeed, one of the next Israel Law Review issues will include comprehensive reviews of the Opinion written by many Israel international law scholars.
324 G.A. Res. ES–10/14 (2003), 8 Dec. 2003.
325 OPT Wall, at paras. 70–78.
326 Ibid., at para. 78 (“The territories situated between the Green Line…and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel has the status of occupying Power. Subsequent events in these territories … have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power”). For discussion, see supra at part III(4)
327 OPT Wall, at paras. 86–113.
328 Ibid., at paras. 114–137. Note that in paras. 138–142 the Court further addresses and rejects the Israeli argument that either the right of self-defense or a state of necessity “preclude(s) the wrongfulness of the construction of the wall resulting from the considerations mentioned in paragraphs 122 and 137 above”. Ibid., at para. 142.
329 Ibid., at para 114 (concluding the determination of the relevant rules and principles of international law to be applied in this matter).
330 Ibid., at para. 89 (citing both the Judgment of the Military Tribunal of Nuremberg and its own Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons to support the conclusion that the Hague Regulations have become part of customary international law, a conclusion recognized by all participants in the proceedings).
334 Ibid., at para. 103. The Court cites only three human rights instruments to which Israel is a party: the ICESCR, the ICCPR and the CRC. The inference is that the Court did not consider the other human rights treaties, such as CERD or CEDAW. This failure is both disturbing and surprising: it may be possible that these treaties were not mentioned because the Court had thought them irrelevant, but this thinking process is not articulated, thus giving the impression that the Court had first fired the arrow and only then drew the target. This is disturbing. It is surprising because, following the Court's own pronouncements at least CERD seems to be relevant: the Court notes that the construction of the wall has been accompanied by the creation of a new administrative regime and that under this regime part of the West Bank lying between the Green Line and the wall was designated as a “Closed Area”. “Residents of this area may no longer remain in it, nor may non residents enter it, unless holding a permit or identity card issued by the Israeli authorities… Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel in accordance with the Law of Return may remain in, or move freely to, from and within the Closed Area without a permit”. Ibid., at para. 85. The Court returns to this point in the application part of the Opinion, when it determines that “[T]hat construction, the establishment of a closed area…and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto)”. Ibid., at para. 133. A regime that operates on the basis of ethnic distinctions would suggest the prima facie relevance of CERD.
338 See supra n. 334.
339 OPT Wall, at para. 111.
341 OPT Wall, at para. 109. Cf. supra part III(3)(e).
342 OPT Wall, at para. 109. Cf. supra part III(3)(d).
343 OPT Wall, at para. 110.
344 Ibid., at para. 112 (referring to both Israel's 1998 initial report and to its 2001 report). See supra part II(3).
345 OPT Wall, at para. 112. In this context the Court further opined that Israel is under an obligation not to raise obstacles to the exercise of such rights in those areas where such competence was transferred to the PA.
347 OPT Wall, at para. 113. See supra part III(3)(d).
348 OPT Wall, at para. 124.
351 Ibid., at para. 128. Reference is also made in this paragraph to the various general documents pertaining to guarantees of access to Holy Places.
363 For discussion, see supra part III (3)(b).
364 See supra part IV.
367 See supra part III(3)(b).
368 OPT Wall, at para. 109.
369 The same reading of Article 6 was offered by Professor Dinstein, see Dinstein, Yoram, “The International Legal Status of the West Bank and the Gaza Strip” (1998) 28 Isr. Y.B. Hum. Rts. 37, at 42–44Google Scholar.
370 Pictet, supra n. 99, at 63.
371 This is one of the grounds on which Roberts bases his contention that Article 6 has lost all importance and application. See Roberts, supra n. 17, at 55–57. It is however unclear whether Article 3(b) obtained the desired effect: its language is open to suggestion that it applies the Fourth Geneva Convention subject to its own terms; its customary law status may also be doubted. In any event, it is surprising that the Court did not bother to discuss this issue.