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Order for a Moratorium on Settlement Construction and Some Comments on the Military Commander's Discretion: HCJ 9594/09 Legal Forum for Israel v. Ministerial Committee on National Security (Judgment of April 21, 2010)
Court Watch | 9594/09 | 1.10.2012 | Adv. Noam Zamir
Criticism

Though the days of the 2009 “moratorium” on building in the West Bank seem like a distant memory, a review of the High Court’s judgment on the moratorium order provides for an examination of one of the most important issues in the law of belligerent occupation: the powers of the military commander and his relationship to the government. This issue evokes some practical questions such as: Can the military commander issue orders subject to political directives from the government rather than his own discretion? The case also provides for an examination of whether the suspension of construction in the settlements is lawful. This is a particularly interesting exploration as it provides a better understanding of the normative framework of the laws of occupation.



Issuance of the Order and the HCJ Petitions

On 25 November 2006, the Ministerial Committee on National Security (the Security Cabinet) decided to suspend construction and issuance of new construction permits in the West Bank for a period of ten months (Resolution No. B/22).[1] The next day, the military commander issued the moratorium order, effectuating the Security Cabinet’s decision.[2]


In response, the Legal Forum for Israel and several local and regional councils challenged the moratorium order as it applied to them in the High Court of Justice (HCJ). On April 21, 2010, the HCJ dismissed the petitions (which were heard together), ruling the order was legal. This commentary addresses only the petitioners’ arguments on the military commander’s power to issue the moratorium order under the laws of occupation.



The Legal Arguments

Although some settlers sometimes claim that the West Bank is not occupied territory,[3] in these petitions, the petitioners used arguments rooted in the law of occupation to challenge the legality of the order. The petitioners’ arguments on this issue were summarized by the court as follows:


The Petitioners further argue that international public law does not permit the military commander to make considerations that are clearly political in decisions affecting residents of the area held under belligerent occupation, and therefore, issuance of the order based on the ministerial level decision is tantamount to relying on extraneous considerations, giving cause for its revocation.[4]


The transcripts of the hearing held on December 16, 2009 reveal that the petitioners in fact had two different legal arguments on the military commander’s powers. The first argument, summarized by the HCJ in the above quoted paragraph, did challenge the military commander’s power to implement political directives issued by the government. This is what the petitioners argued on this issue:


With respect to the military commander’s power, I believe he should have used his own discretion. He is not subordinate to the government. The government has no power to issue him orders and he has no power to accept them. He must use his own discretion to protect the population under his control.[5]


The second argument was not that the military commander’s lacked authority to implement the government’s political directives, but that the government’s considerations were contrary to international law:


The issue of the powers held by the military commander does not stem from the government, but from the rules of international law, which he is meant to follow. He must maintain public order and safety and he may exercise his powers there. Any other consideration is prohibited under international law. True, the government does have the power to instruct him within the framework, but what’s out of it, even the government cannot instruct, as the powers of the government also get their substance from international law and are bound by The Hague Regulations and the Geneva Convention… The government cannot have the same power as in the judgment given on disengagement with respect to evacuation – the same power it has to seize a territory it has to leave it – but not to create this hybrid.[6]


As stated, the HCJ addressed, and dismissed, only the first argument:


As often held in our rulings in the past, the military government and its authorities are “extensions of Israel’s executive branch” and they “speak on behalf of the State”, with respect to any matter relating to territories in the area held under belligerent occupation […] Therefore, the military commander may, indeed must, act in the area under his command in a manner that conforms with the policy formulated by the government, provided that, while exercising discretion, he acts in accordance with the powers vested in him by law and subject to the responsibility incumbent upon him under international law to ensure public order and safety in the area held under belligerent occupation […] As noted by the State in its response, the military commander has issued many orders in the past on instructions from the ministerial level, acting as the government’s arm in the implementation of its policy in the Area. As stated, there is no flaw in same. The Court has ruled as much in the past in many petitions brought before it against military commander orders issued on instructions from the ministerial level.[7]


This statement, which is generally true, does not look at the issue from the point of view of international law. In terms of international law, the question is whether the military commander has the authority to issue orders on the instructions of the government. Aside from that, the HCJ makes no reference to the petitioners’ second argument. In other words, the question is not only whether the military commander is authorized to issue orders on the instructions of the government, but whether the substance of the moratorium order (i.e. a temporary halt to construction in the settlements) conforms to international law and the law of occupation. I will address these questions in sequence.



An International Law Perspective on the Powers of the Occupier

According to the law of occupation,[8] the powers of the occupier revolve around two main axes: its own security interests, and the benefit of the civilian population in the occupied territory.[9] However, the organizational structure of the occupying power can take various shapes (military or civilian) and the manner in which its powers are used remains at its discretion.[10] So, for instance, in the Supreme Court’s first judgment, then President Zmora dismissed the argument that only the military commander may enact laws in an occupied territory:


On the argument that the military commander should have been legislator in the occupied territory rather than the State of Israel, I am of the opinion that if international law gives some legislative powers to a military regime, then a fortiori such powers rest with the legislator of the occupying power, from which the military receives its powers.[11]


Accordingly, a governmental decision to operate in the occupied territory via a military commander does not mean the military commander must have his own discretion, separate from the government. The relationship between the occupier’s various institutions (for instance, the legislator, the government and the military), are the occupier’s internal business, unregulated by the law of occupation. International law in general, and the law of occupation in particular, address the state’s obligations as such. The state usually operates through a military commander in a state of occupation (but it is not obliged to do so), and the military commander implements the occupying power’s policy subject to the substantive rules of international law. These rules make no reference to the specific agency operating on the ground, but to the considerations and policies permitted in an occupied territory. Therefore, whether the military commander acts independently or on the government’s instructions, and whether the government acts through a military commander or through direct legislation, the act itself must conform to the law of occupation.[12]


It is worth noting that while some hold that the occupying power has the authority to decide how to implement its rule on the ground, there is also the position that the administration of an occupied territory must be military in nature. According to this stance, the occupying power may, for instance, use a civil administration only as an agency of the military rather than a separate body. However, even under this approach, the military commander answers to the government and must implement its policies.[13]


Based on all this, the HCJ was clearly right in rejecting the petitioners’ first argument that the military commander could not issue orders based on government directives. Ultimately, the question is not whether the government or the military commander may exercise a certain power in the occupied territory, but rather, whether said power is used in keeping with international law. The question that remains to be addressed is whether the decision to suspend construction in the settlements (and, consequently, the decision to issue the moratorium order) was made in congruence with international law.



An International Law Perspective on Suspending Construction in the Settlements

The very discussion whether an order suspending construction in the settlements is within the purview of the military commander might bring a smile to the faces of those who maintain settlements are illegal under international law. I will, however, go beyond the legality of settlements in order to examine the laws of occupation from another angle.


We must begin with the general question of the legality of settlements under international law. The main arguments in this debate are well known and there is no point in repeating them in detail. According to most experts in the field, the settlements in the OPT are unlawful under international law as they contravene Art. 49 of the Fourth Geneva Convention, and may turn the occupation from temporary to permanent, which would constitute unlawful annexation.[14] Moreover, the settlement policy has been rebuked as unlawful by the international community (both in the UN Security Council and in the General Assembly), and the International Court of Justice in the Hague ruled that the settlements are, in fact, a violation of Art. 49 in its advisory opinion on the separation wall (hereinafter: the ICJ opinion).[15]


On the other hand, there is a contention that even if the law of occupation applies to the West Bank, the settlements are not a violation of Art. 49, as it was not meant to prohibit settlements. There is also a contention that the different types of settlements should be distinguished. A minority are legal (those established for security purposes, or without government encouragement as the result of a private land purchase transaction, sometimes the land was Jewish owned during the British Mandate), while many are not (those established with government encouragement but no military justification, or those established for military purposes but are now used for civilian purposes with no military justification).[16]


If one accepts the argument that all or most of the settlements are unlawful, then the military commander clearly has the power to take measures to end the breach of international law and order the suspension of settlement construction. However, as is known, the HCJ refuses to rule on the general status of the settlement enterprise under international law.[17]


The government explained the moratorium as a move that intended to push peace talk forward and help reach an agreement on ending the conflict.[18] Therefore, there are, in a nutshell, at least three legal principles that might justify the suspension:


(1) The occupying power’s duty to see to the benefit of the local population – as explained above, one of the main duties of the occupying power is to see to the interests of the local population of the occupied territory. If a moratorium on construction could help bring an end to the conflict, and to the occupation, then the suspension clearly benefits the Palestinians. Aside from that, it can be argued that settlement expansion reduces Palestinian land reserves, and so a construction suspension serves the interests of the Palestinians.


(2) The right to self-determination and Israel’s international obligations – The right of nations to self-determination is currently considered a major right under international law. Aside from the fact that the international community has acknowledged the Palestinians’ right to self-determination, Israel itself has recognized it as well (the ICJ considered Oslo II as an affirmation of Israel’s recognition of this right. The Quartet’s acceptance of the Road Map to Peace was another indication of this recognition). In its advisory opinion, the ICJ ruled Israel had an obligation to uphold its commitment to respecting the Palestinian people’s right to self-determination.[19] In this regard, not only could the construction moratorium be said to advance the peace process, thereby advancing the Palestinians’ right to self-determination, but it could also help prevent the creation of conditions that could preclude the realization of this right.


(3) The temporary nature of an occupation – The regime effected by the law of occupation is, in essence, temporary,[20] a point emphasized by the HCJ in the past,[21] and imbued with increased significance, given the right to self-determination. The temporary nature of the regime of occupation has led the HCJ to stress the temporary nature of the settlements, which rely on the presence of the military commander in the area.[22] The temporary nature of the settlements has served as the legal anchor for the military commander’s power to remove settlements from the Gaza Strip (while compensating the settlers).[23] And so, given that the military commander has the power to evacuate settlements, he clearly also has the power to order temporary measures in them, such as suspending construction. Without the authority to order this suspension, it is unclear how the military has control over what takes place in the OPT, or how, if and when the day comes, he would be able to order the evacuation of the settlements.


Why the court did not thoroughly address the petitioners’ second claim is unclear. It might have been inadvertent, or the HCJ might have felt ill at ease to delve into this argument, given its reluctance to address the legality of the settlements. However, we do see that the conclusion that suspending construction in the settlements does conform to international law in general and the law of occupation is particular can be reached even without addressing the legality of the settlements.



Conclusion

The settlement construction moratorium case has not been thoroughly reviewed in legal literature. Perhaps this has to do with the fact that the HCJ did not produce any new rules pertaining to the law of occupation, perhaps it is because few in the academic world disagree with the outcome. Still, this is an interesting ruling, mainly because of what the court did not say: both on the position of international law on the military commander’s discretion and his relationship to the government and on the legality of the moratorium order.



Adv. Noam Zamir

The author is a lawyer and an international law PhD candidate at Cambridge University.



[1] 
See Ministerial Committee on National Security, Resolution No. B/22 regarding Suspension of Building Permits in the Judea and Samaria Area, November 25, 2009 (in Hebrew) (see also PMO press release in English).
[2] 
See Order regarding Suspension of Construction Proceedings (Temporary Order) (No. 1653), November 26, 2009. A new order, with several amendments to the previous one, was issued in January 2010; see Order regarding Suspension of Construction Proceedings (Temporary Order) (Amendment) (No. 1655), January 7, 2010.
[3] 
Thus, for instance, was the argument in an HCJ case on the legality of disengagement from Gaza; see HCJ 1661/05 Gaza Coast Regional Council v. Israeli Knesset (2005), judgment of June 9, 2005 (in Hebrew).
[4] 
HCJ 9594/09 Legal Forum for Eretz Israel v. Ministerial Committee on National Security (2010), judgment of April 21, 2010 (in Hebrew), para. 15.
[5] 
Ibid., transcripts of hearing of December 16, 2009 (in Hebrew), Adv. Gilad Rogel, p. 7, lines 3-6.
[6] 
Ibid., Adv. Shai Gabsi, p. 4, lines 26-31, 33-34.
[7] 
Ibid., judgment, para. 15.
[8] 
[9] 
The HCJ has often repeated this; see, e.g., HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983 (see also commentary on this judgment); HCJ 2056/04 Beit Sourik Village Council v. Government of Israel (2004), judgment of June 30, 2004, para. 34 of the opinion of President (emeritus) Barak.
[10] 
See, e.g., Charles C. Hyde, International Law, Chiefly as Interpreted and Applied by the United States (2nd rev. ed., 1947), Vol. III, pp. 1882-1883; Yukata Arai-Takahashi, The Law of Occupation – Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (2009), pp. 137-138. However, generally, the occupying power uses the military.
[11] 
CrimA 1/48 Sylvester v. Attorney General (1948), judgment of February 8, 1949 (in Hebrew), para. 32 of the opinion of President Zmora.
[12] 
See Eyal Benvenisti, The International Law of Occupation (2004), pp. 19-20.
[13] 
See Yoram Dinstein, The International Law of Belligerent Occupation (2009), p. 56; Arnold Wilson, “The Laws of War in Occupied Territory”, Transactions of the Grotius Society, Vol. 18, (1932), p. 18.
[14] 
Article 49 stipulates, inter alia, that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”.
[15] 
[16] 
On this position, see, e.g., James Crawford, Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories, January 24, 2012, paras. 7-12.
[17] 
HCJ 4481/91 Bargil v. Government of Israel (1993), judgment of August 25, 1993.
[18] 
See above note 4, para. 13.
[19] 
See above note 15, para. 149: “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law”.
[20] 
See above note 15, Separate opinions of Judge Elaraby [3.1], and Judge Koroma [2].
[21] 
See, e.g., Jam'iat Iscan Al-Ma’almoun, above note 9, paras. 12, 23 of the judgment; Beit Sourik, above note 9, para. 27 of the opinion of President (emeritus) Barak.
[22] 
HCJ 390/79 Duweikat v. Government of Israel (1979), judgment of October 22, 1979; see also commentary on this case.
[23] 
See above note 3.
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