For some 42 years, Israel has been controlling the entire area between the Jordan River and the Mediterranean. On one hand, Israel treats this area as a single unit. On the other hand, it implements a regime under which one law applies to a certain segment of the population and another, military law, applies to another. The status of the West Bank and the Gaza Strip as occupied territories is used to justify this legal duplication.
[1] However, in practice, what is at issue is a personal law that is partly attached to the individual (and to nationality), and just partly to the territory. This is especially evident in situations where Israelis are in the Occupied Palestinian Territories (OPT) or where Palestinians are brought into Israel.
The Wajia judgment is a fascinating case in which the Israeli court was required to address one of the absurd results of this tension.
The petition was submitted in 1995 by detainees from the Gaza Strip whose detention was extended under the military legislation in effect in the Gaza Strip at the time, by a judge of the military court of the Gaza Strip administration. The military court judge arrived at the prison in Ashkelon, inside Israel, for the purpose of the extension, and the legal proceedings in the matter, as well as the issuance of the arrest warrant were all conducted inside Israel. Advocate Andre Rosenthal, who represented the detainees on behalf of HaMoked, claimed that the Gaza Strip military court was not permitted to hold its hearing inside Israel. Therefore, its decision was unlawful and without a legal basis for the arrest, the detainees must be released.
So what is the problem? What can be more natural than an Israeli judge, acting under Israeli law inside Israel? Yet, conceptually, it is not an Israeli judge nor is it Israeli law. Israeli sovereignty and law apply only to the territory of the State of Israel, within the 1949 armistice line (also known as the June 5, 1967 borders, or the “Green Line”). As far as Israel is concerned, its laws apply also to the Golan Heights and East Jerusalem, but no one disputes that the Gaza Strip and West Bank (excluding East Jerusalem) are outside Israel’s borders and Israeli law does not apply therein. The powers of the military administration in those areas do not stem from Israeli sovereignty but from international law which confers certain powers upon the occupying power and allows it,
inter alia, and under certain restrictions, to exercise the state powers of the original sovereign and to enact security legislation.
Thus, from a legal standpoint, there is a distinct political entity on each side of the Green Line. One is headed by the Israeli Knesset, the other by the military commander (albeit not as sovereign). Despite the fact that they are both Israeli, each is restricted to its own area and cannot trespass on the other.
In the context of the
de-facto annexation to Israel of the occupied territories (not those annexed
de jure, namely East Jerusalem and the Golan Heights), both the Knesset and the military commander enacted a series of legal provisions which introduce Israeli law into the OPT and
vice versa. Thus, for example, Israeli statute allows for trying Israelis in Israeli courts for violations of Israeli law committed in the OPT, as if they were committed inside Israel. Military legislation applies Israeli local authority laws to the areas of the settlements, and a special clause in the Knesset Election Law provides that Israelis living in the OPT may vote where they live to the Knesset, despite the general provision whereby participation in the elections only within the borders of the state.
[2] In our matter, special Israeli legislation allows holding prisoners in Israel with no Israeli authority for their incarceration but where such authority exists under the military law which applies in the OPT.
[3] There is, in fact, a legal provision which allows holding individuals incarcerated under OPT legislation inside Israel. However, there is no provision in Israeli law which allows military courts to hold court inside Israel. Basic Law: The Judiciary, which regulates the operation of the courts in Israel, stipulates that judicial power in Israel is vested only with courts, tribunals and other authorities upon which judicial power was conferred by law, namely, a law passed by the Knesset.
In the absence of an Israeli law granting military courts judicial power inside Israel, they cannot possess such power.
But rather than examine Israeli law, Justice Strasberg-Cohen elects to examine legislation in the OPT in order to see whether it allows a military court to sit outside them.
[4] Indeed, she found a section in an order by the military commander which allows the court to choose where it sits. She interpreted the section as allowing the court to sit outside the OPT as well. However, the permission granted to the court under military legislation to adjudicate outside the OPT is a necessary, yet insufficient condition for the legality of its deliberations in Israel. This requires, foremost, authorization under Israeli law and in accordance with Basic Law: The Judiciary and no such authorization exists.
It is unclear from the Wajia judgment whether the issue was presented to the court from the perspective of Basic Law: The Judiciary. In any case, it should have been clear to the court (which operates under this very same basic law) that Basic Law: The Judiciary should be the first source to be examined in order to rule on the issue of the power of any institution to exercise judicial powers inside the state. Whether the basic law was mentioned in the arguments presented to Justice Strasberg-Cohen or not, one of the arguments raised by counsel for the petitioners in the Wajia case was that Israeli sovereignty is breached when a court established under OPT legislation operates inside Israel. It is a variation on the argument regarding the basic law. The point is the same: only the Knesset may grant judicial powers inside Israel. The court refrained from ruling on this question. It circumvented it using the position that this argument is beyond the scope of the petitioners’ case: only the sovereign can demand satisfaction when undermined. Yet this is clearly a judicial error. If I find myself accused in a Chinese court which purports to operate inside Israel, or if my neighbors declare themselves a drumhead court-martial and sentence me to detention – obviously, Israeli law enforcement agencies and the Israeli court must come to my aid and declare invalid these organizations’ pretention to exercise judicial power within the state. Even if the Knesset and government keep silent, as if swallowing their pride, the court must decide that the rulings of the Chinese court and the neighbor “court” are null and void. The court must order my release from incarceration, the only legal source for which is rulings by these organizations. A military court established under military legislation beyond the Green Line is no different.
If the Supreme Court did not follow this path it is only because of a conceptual adaptation to the idea that there are two kinds of detainees in Israel – those detained under Israeli law and those under OPT law. If so, why bother with the formalities of inquiring where the decision was handed down – the OPT or Israel? It is more convenient for the security agencies to have detainees held inside Israel. Israel Security Agency interrogation facilities and most police and IPS holding facilities are located inside Israel. In most cases, suspects from the Territories can be indicted on charges under Israeli law and arrested in accordance with the provisions of Israeli law. However, security agencies also find it more convenient for the applicable detention laws to be those of the OPT. These allow longer detentions and more “generous” detention extensions. They make denial of attorney – detainee meetings easier and so on. Thus, after the detainees were brought into Israel, the OPT detention laws Territories also trickled into Israel in the shape of incarceration orders issued under these laws. Why should we complain if, following the detainees and the detention laws, the military judges themselves crossed the Green Line? It is, after all, so inconvenient to take the detainees out of the interrogation facilities to the courts in the OPT just to extend their detention… and if this contravenes a basic law or the principle of sovereignty, than we had better find a way to circumvent this obstacle and let reality take its course.
In March 2010, the HCJ delivered its judgment in another petition, which targeted,
inter alia, the operation of courts established under West Bank military legislation inside Israel.
[5] The petition was filed by Yesh Din, the Association for Civil Rights in Israel and HaMoked. The petition focused on the legal provisions of international law which vehemently insist that military courts established by the occupying power be located in the occupied territory. According to other explicit international law provisions, those accused in these courts must be detained only in the occupied territory and if sentenced to a prison term – serve it in the occupied territory.
Whether the matter is reviewed from the point of view of international law or from the point of view of Israeli law, the issue which the court will have to address is the reality of blurred lines. If the Green Line still exists and the territories East of it are occupied territories, than occupation laws must be upheld and prisoners, detainees, judges and detention laws cannot travel from its eastern side to its western side. If occupation laws and the Green Line are to be given no validity – the entire foundation for the legitimacy of using two separate legal systems and two types of detention laws one for the Palestinian population under occupation and one for Israeli citizens, is undermined.
Adv. Yossi Wolfson The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
