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Aspects of the Beit-El and Eilon Moreh Cases
Published online by Cambridge University Press: 12 February 2016
Extract
Judges whose daily tasks are to interpret the law of their own State frequently find difficulties in expressing the exact nature and hierarchical value of the rules of international law, which from time to time they are required in some sense to apply.
Perhaps the classical example of this in countries applying the English common law is that of prize courts and the law which they should apply. Under international law belligerent States, by whom maritime captures (prizes) may be made, have a duty to create some forum before which issues can be tried as to the lawfulness of such captures and its consequences. As Lord Parker observed in The Zamora as to the title in the property seized, “from the moment of seizure the rights of all parties are governed by international law”. In the final ruling in that case, the Privy Council held that the neutral property at issue had been unlawfully requisitioned, even though such requisition was authorised by a British Executive Order-in-Council, because that Order-in-Council itself was inconsistent with the rules of international law governing requisition of neutral property.
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References
1 (1916) 2 A.C.77, at 106. For somewhat fuller treatment of the law applied by Prize Courts see Stone, Julius, Legal Controls of International Conflict (1954) 522–544.Google Scholar
2 See Lauterpacht, H., “Is International Law a Part of the Law of England?” (1940) 25 Grotius Society Trans. 51–88Google Scholar, and the proceedings in (1944) 30 id. pt.i, 9–137, which is referred to here as “Symposium”.
3 See A.D. McNair, in Symposium 11–21, at 18, Lord Finlay id. 127–135, Lord Parker in The Zamora cited infra n. 7.
4 A. D. McNair, loc. cit.
5 Lord Finlay, op. cit., at 131.
6 See, e.g., SirSamuel Evans, P., in The Odessa (1915) P. 52, at 61Google Scholar; and the classical position of Stowell, Lord in The Maria (1799) 1 Rob. 340Google Scholar, that the law administered by the Prize Court “has no locality”.
7 In The Zamora (1916) A.C. 77, at 90.
8 Symposium 18n. Cf. McNair, A. D., “The Method Whereby International Law is Made to Prevail…” (1944) 30 Grotius Society Trans., pt.i, 18.Google Scholar
9 The Italian Laws of War 1938 (Art. 222) provide expressly that the tribunal applies “the internal law of the State”, with recourse in the absence of a precise provision thereof, to “the generally recognised principles of international law”. The Italian Prize Court in The Athinai, 2 Bollettino … delle Prede 302, at 362, stated that it had no power under Art. 222 to decide whether the internal conforms to international law, and that this question, while affecting the international responsibility of the State, was outside the tribunal's jurisdiction.
10 (1916) A.C. 77, at 89.
11 (1916) A.C. 77, at 90.
12 Cf. the opinions in The Düsseldorf (1920) 9 Ll.P.C.1–11, (1919) P. 245 (on app. (1920) 9 L1.P.C.12, (1920) A.C. 1034) and The Kronprinsessan Margaretha (1920) 8 L1.P.C.241.
13 The fact that British prize decisions bind as precedents in British prize courts supports the present position. The binding force of precedent is not a doctrine of international law. Its effect may compel a British prize court to follow decisions inconsistent with international law. See The Alwaki (1940) 1 L1.P.C. (2nd) 43.
14 It is not intended to question the record of objectivity of British, as well as American, prize courts, and their comparative independence in face of both executive and legislative interference; a record rendered the more striking by the frequent submission of other national prize courts to such interference. Cf. Higgins, A.P. and Colombos, C.J., The International Law of the Sea (2 ed., 1951) 624–27.Google Scholar But it conceals the true greatness of this achievement to perpetuate the intellectual inconsistencies of judicial and juristic ritual language. Lord Stowell was clear that there cannot be “anywhere a supremacy of the law above the power of legislation” (The Snipe (1812) Edw. 381, 385). Coherent thinking cannot have it both ways, even in Stowell's company.
15 Thus in the First World War, Evans P. held that the common law rules as to transfer of property do not apply in the prize court to determine the validity of transactions taking place after or in anticipation of war. (The Miramichi (1915) P. 71). The Privy Council in The Odessa (1916) 1 A.C.145, at 158–59, disregarded the rights of a British pledgee of enemy cargo and refused to take into consideration the special rule of English law which allows a pledgee to sell without recourse to the Court.
16 Even if the United Kingdom, like some other maritime States, had a Code of Prize Law enacted by the Parliament, that Code might reasonably provide for prize cases rules as to the passing of property in goods or ships, at to the meaning of “residence”, or other matters arising in prize, different from the corresponding rules or meanings in other parts of the municipal law. That would still not prove that the Code rules operated as international law, rather than as an Act of Parliament, and a part of British municipal law.
17 Ayyub et al. v. Minister of Defence et al. (1979) (II) 33 P.D. 113 here cited as the “Beit-El case”, with a translation into English by the Ministry of Justice, here cited as “trans.”; Dwikat et al. v. Government of Israel et al. (1980) (I) 34 P.D. 1, here cited as the “Eilon Moreh case”, with a translation into English by the Ministry of Foreign Affairs, here cited as “trans.”. On the limited bearing of these cases to the question of Israel's territorial standing in Judea and Samaria under international law, see Stone, Julius, Israel and Palestine, Assault on the Law of Nations (forthcoming 1981, Johns Hopkins University Press)Google Scholar Appendices.
18 Hilu et al. v. Government of Israel et al. (1973) (II) 27 P.D. 169.
19 His position was even more obdurate on this matter in the Hilu case supra n. 18. He there argued at length (as I understand him) that under international law the supreme military commander is sovereign legislator in the occupied territory, just as the Knesset is sovereign legislator in Israel. So that “we have to see ourselves as a High Court of Justice sitting in the occupied area itself”. He rejected Landau, J.'s very clear position that, for the Israel court, finally the Knesset is the supreme legislator for both Israel and the territories, on the ground that, if so, the Knesset would have expressly authorised the military orders concerned. This seems to ignore the existence of the common law rule by which customary international law is deemed to be part of the common law. With respect, on such an argument, the lawmaking effect of judicial decisions in most common law jurisdictions would constitute lawmaking of a distinct judicial sovereign—for it is rarely expressly authorised by the legislature.
20 Some apparent duplication seems to appear in the judgment of Landau, D.P. in the Beit-El case (trans. 16–25, esp. 18–21), though he avoided it in the Hilu case, supra n. 18; Ben-Porat, J. in the same case appears to avoid it.
21 See, e.g., for early examples, Stone, Julius, Regional Protection of Minority Rights (1933).Google Scholar
22 It is unhelpful, even if printers' errors do not render “non-justiciable” into “non-justifiable”, an error regretably and misleadingly committed in the first learned commentary on the Eilon Moreh case in the Note (1980) 15 Is. L. R. 131, at 133, line 13.
23 Lauterpacht, H., “La Théorie des Différents Non-Justiciables…” (1930) 34 Hague Recueil 499–654.Google Scholar
24 See for further details and authorities, Stone, , Legal Controls of International Conflict (1954) Discourse 7, 146–152Google Scholar (Justiciability); Discourse 8, 153–164 (Non Liquet); id., Of Law and Nations (1974) c.iii.
25 Witkon, A., “Justiciability” (1966) 1 Is.L.R. 40.Google Scholar
26 Stone, Legal Controls of International Conflict, op. cit. supra n. 1, at 721, n. 176.
27 Cf. Stone, id. 698ff.
28 The Court joined the Beit-El case with the Beka'ot case (Matawa et al. v. Minister of Defence et al. (1979) (II) 33 P.D. 113) because of the following common features, namely (a) seizure of lands; (b) denial of owner's right to enter and use lands; (c) that Jewish civilian settlements are intended in the land. Yet on the same page Witkon, J. points out that in the Beit-El case only (c) and not (a) or (b) were challenged. Some petitioners in Beit-El even accepted the compensation offered by the Requisition, their land in any case not being used, it having formerly been a Jordanian military camp. They only began proceedings eight years later in 1978, claiming that civilian Jewish settlement then showed that the purpose of requisition was not military security. In the Beka'ot case the land was under cultivation by the petitioner. The Beit-El case requisition based itself on “essential and urgent military purposes”, and the Court assumed this in Beka'ot also, since “the Respondents asked for their acts to be justified on that account”.
29 Cf. Witkon, J., Beit-El trans. 13–15.Google ScholarCf. in the same case Landau, J. at 24. The following were invoked in support: Schwarzenberger, G., International Law (1968) vol. 2, pp. 257, 269, 288Google Scholar; von Glahn, , Occupation of Enemy Territory (1957) 186, 196Google Scholar; Oppenheim, , International Law (7th ed., 1952) vol. 2, pp. 403, 410, 540.Google Scholar
30 Cf. Witkon, J. in Beit-El, trans. 14–15Google Scholar, citing the earlier holding in Hilu.
31 See Landau, D.P. in Eilon Moreh, trans. 22–23Google Scholar, citing Oppenheim, , International Law (7 ed.) vol. 2, pp. 403Google Scholar, §140, and the British Manual, s.598.
32 Both novel, and certainly different in mood from Landau, J.'s insistence in the Hilu case that the Court would not substitute its own judgment for that of the military authorities as to what was required by “military security”. He there cited Hyde, , International Law (2 ed.) vol. 3, p. 1802Google Scholar, referring to the “great latitude” allowed by the law to the military authority, who is “the judge” of security needs. Witkon, J. in that case adopted a similar stance, except for cases where the commander's “reasons” were “disproved” or “revealed to be fictitious”.
33 On the question of constitutional law and convention as to whether Chief-of -Staff's view (endorsed by Cabinet) on military matters should prevail against the Minister of Defence's view, which the Court held to be irrelevant, see trans. 11–12, per Landau, D.P.
34 A similar evaluation in terms of mere pretextual misuse of the military authorities' assertion of military needs seems to underlie Landau, J.'s explanation of how the Beit-El case was to be distinguished from the Eilon Moreh case: “We were convinced that the requirements of the army obligated the establishment of the two civilian settlements discussed in that case at the places where they were established”. So that each case “must be examined to determine whether military purposes, as this term must be interpreted, in fact justify the seizure of the private land” (trans. 12).
35 See, e.g., Landau, J. in the Beit-El case, trans. 19Google Scholar, and in Eilon Moreh, trans. 6.
36 Bechor J. in Eilon Moreh (trans. at 46) finally seemed to agree that it was the mixed purposes, and the dominance of the “political” purpose alone, which invalidated the Commander's assessment of military needs as a basis for requisition. The mere fact of conflicts of military views, even with the Minister of Defence, would not otherwise have caused him any difficulty.
37 See Stone, op. cit. supra n. 17.
38 See Stone, ibid., at Chap. 7, n. 21. Most of this forthcoming work is devoted to the question of Israel's territorial entitlements under international law.
39 In Eilon Moreh, trans. 42.
40 Witkon, J. in the Beit-El case (trans. 22–23) seemed to run together the questions of Israel's other entitlements under international law, and this last question of the possible outcomes of future international negotiations, under what is an overwide notion of “nonjusticiability”. Cf. his view in the Hilu case (supra n. 18) that “military and security matters are, like matters of foreign policy, not matters suitable for determination by the judicial arm”.