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The Operation of Military Courts inside Israel: HCJ 2690/09 Yesh Din et al. v. IDF Commander in the West Bank (Judgment of March 28, 2010)
Court Watch | 2690/09 | 1.12.2010 | Adv. Yossi Wolfson
Criticism
In 1995, in the Wajia judgment, the Supreme Court legitimized the operation of military courts established under the laws applicable to the Occupied Palestinian Territories (OPT) inside Israel.[1]

Although Israelis staff governmental institutions both in Israel and in the OPT, these are two separate governmental apparatuses. The Israeli apparatus is headed by the Knesset, the Israeli parliament, which expresses popular sovereignty. The supreme norm in Israel is the basic laws and a series of unwritten principles. The apparatus in the OPT is headed by the military commander. He is not a sovereign in the territory, but a temporary administrator. The military commander’s status is derived from the law of occupation in international law: it grants him powers and sets the limits on these powers (simultaneously, as an Israeli civil servant, he is also bound by Israel’s constitutional and administrative law).

As far as the Israeli judiciary is concerned, the military courts of the OPT are foreign courts. As far as the court of the OPT is concerned, Israel is a foreign land. Two necessary conditions must be met in order for an OPT military court to hold court inside Israel: the laws of the OPT must authorize the court to adjudicate outside its natural territory and Israeli laws must authorize it to hold court inside Israel (as a foreign instance). Authorization under OPT laws is subject to international law. Authorization under Israeli law is subject to Israeli basic laws.

In the Wajia case, the petitioners argued that the requirement for authorization under Israeli law for OPT military courts to adjudicate inside Israel had not been met. They argued that the operation of the military courts inside Israel constituted a violation of Israeli sovereignty. The operation of a foreign court which issues incarceration orders inside the country is a breach of sovereignty. Basic Law: The Judiciary expressly stipulates that only courts empowered by the Knesset may operate inside the country. The petitioners also pointed to an Israeli statutory provision which implies that the OPT military courts may not operate inside Israel. The provision in question is Regulation 6(b) of the regulations included in the schedule to the Law Extending the Validity of the Emergency Regulations (Judea, Samaria and the Gaza Region – Adjudication of Offences and Legal Aid) 5727-1967, which allows holding inside Israel Palestinians who were arrested pursuant to OPT military legislation:

The arrest and detention of a person against whom an order for arrest or warrant for arrest was issued in the Area [i.e., the OPT] under authority granted pursuant to a commander’s proclamation or order, may be carried out in Israel in a manner in which an order for arrest or warrant for arrest is carried out in Israel and such person may be transferred for detention in the area in which the offence was committed [Emphasis added, Y.W.].

The petitioners argued that the language of the regulation implies that only OPT arrest warrants which were issued in the OPT may be carried out in Israel. That is, the location of the military court is significant. Arrest warrants issued by an OPT military court that sits in Israel, cannot be carried out in Israel.

The court rejected the petitioners’ argument in the Wajia case. Justice Strasberg-Cohen ruled: “Regulation 6(b) does not go into the question of where the military court of the Area sits at all”.[2]

Justice Strasberg-Cohen's justification for finding military courts competency to sit in Israel are the provisions of an OPT military order that permits military courts to determine where they sit. She interpreted these provisions as allowing the courts to decide to sit outside the occupied territory. The Justice chose not to examine whether international law permits the military commander to enact a provision that lets his courts sit outside the occupied territory. She also chose not to get into the second necessary condition – empowerment under Israeli law.

Fifteen years later, the Supreme Court, headed by President Beinisch, reviewed a new petition which challenged, inter alia, the operation of military courts in Israel.[3] In this petition, the law of occupation stood at the center of the petitioners’ arguments. As stated, the law of occupation stipulates the powers of the military commander in an occupied territory. It also determines its limits. The Fourth Geneva Convention empowers the occupying country to set up military courts and try residents of the occupied territory who violate the security provisions enacted by it in these territories. The Fourth Geneva Convention also sets limits on this power. It stipulates, inter alia, that these courts shall sit inside the occupied territory.[4] The military commander cannot adopt only bits and pieces of international law: he cannot grab the power to establish military courts with both hands and at the same time breach the duty to have them operate inside the occupied territory and not in the territory of the occupying country. Thus, the interpretation given by the court to the military order in the Wajia case contradicts international law. Either the interpretation is wrong, or the order exceeds the powers of the military commander and is null and void.

The petitioners speak of oranges and President Beinisch, who wrote the judgment, answers with apples. Where the petitioners make arguments based on the law of occupation and the powers of the military commander, Beinisch retorts with Israeli law. There is a doctrine in Israeli law whereby express statutory provisions by the Knesset trump international law. The petition also addressed the holding of Palestinian inmates inside Israel, which is prohibited under international law. However, as we have seen, on this issue there is an express statutory provision which allows holding people incarcerated pursuant to the provisions of OPT military law inside Israel: Regulation 6(b) quoted above. In view of this provision, Beinisch chooses not to make a finding on what international law requires – whatever it is, the permission in Regulation 6(b) takes precedence.

President Beinisch seeks to apply the same doctrine to the issue of the military courts inside Israel. However, here she encounters a problem. There is no Israeli legislation on this issue. On the contrary, the Supreme Court itself ruled, in the Wajia case, that Israeli legislation is silent on this matter (even if there had been a provision which could be interpreted either way, Israel law has an interpretive rule according to which an interpretation that is in accord with international law is preferable). It would seem that the Supreme Court should have accepted the petition on this point and ruled that the military commander, whose powers rely entirely on the law of occupation, may not authorize OPT courts to adjudicate outside the Area in contravention of the law of occupation. Customary international law is also part of Israeli law (as long as there is no overriding express statutory provision). Therefore, the court should have ruled that Israeli incarceration authorities should not accept inmates who are incarcerated pursuant to orders issued by the military court of the OPT, if such operated outside them in contravention of an explicit rule of customary international law.

Not only does President Beinisch not accept the petition, but she also chooses to base her judgment on the Wajia judgment. But how? The Wajia case is based on a military order which is subject to the provisions of international law. Moreover, the Wajia judgment found that Israeli legislation says nothing on the issue of where OPT military courts sit. Thus, the doctrine that express Israeli statue trumps international law has no ground to stand on. Beinisch’s solution is to attribute to the Wajia judgment things that were not said in it, in fact, things that are the complete opposite of what was said in it. She writes:

This issue has arisen in this court’s case law in HCJ 6504/95 Wajia v. State of Israel […] where it was found that the basis for the possibility of military courts’ holding hearings on the detention of residents of the Area lies in Regulation 6(b) of the Emergency Regulations. This regulation indeed does not make reference to the location of the court ordering the detention, yet allows its operation on the substantive level. We have not seen cause to change the rule set forth in the Wajia case […] This, for the above detailed reasons regarding the relationship between internal legal provisions and international law.[5]

The Wajia case, we recall, points to a military order as the basis for the possibility of the military courts’ holding court in Israel, not provisions in Israeli law. President Beinisch may point to an Israeli legal basis for such, as opposed to the Wajia judgment, but hiding behind a judgment that does not say what is attributed to it at all is, at the least, problematic. More importantly: if Regulation 6(b) does not make reference to the location of the court, how is the relationship between international law and express statutory provisions in internal law relevant to our case? The solution lies with the President.


Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
See HCJ 6504/95 Wajia v. State of Israel (1995), judgment of November 1, 1995; see also commentary on this judgment.
[2] 
Ibid., para. 6 of the judgment.
[3] 
HCJ 2690/09 Yesh Din et al. v. IDF Commander in the West Bank (2010), petition of March 25, 2009.
[4] 
[5] 
See above note 3, judgment of March 28, 2010, para. 10.
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