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This chapter examines the practice of the Israeli Supreme Court in referencing the jurisprudence of international courts and tribunals when interpreting the international law by which Israel is bound. It notes the paucity of such referencing and examines its uses. While international jurisprudence has a limited role in guiding the Court’s own interpretative enterprise, it serves the Court in enhancing the legitimacy of its decisions in the eyes of both domestic and international audiences.
Interest in the criminal aspects of the Israeli settlement project in the West
Bank is hardly new; it informed the drafting of Additional Protocol I (AP I) and
of the Statute of
the International Criminal Court (ICC), and motivated Israel's
rejection of both instruments. The 2009 Palestinian attempt to establish ICCjurisdictionpromptedextensivescholarlydebate
on the preconditions for jurisdiction and on its territorial and temporal
aspects, as well as on specific admissibility questions, primarily gravity.
(Complementarity is not an issue with regard to the establishment of West Bank
settlements, since Israeli law and jurisprudence do not prohibit it, although
they regulate some aspects related thereto).