Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-27T06:34:20.989Z Has data issue: false hasContentIssue false
  • English
  • Français

Applicability of Basic Law: Human Dignity and Freedom in the West Bank

Published online by Cambridge University Press:  05 March 2013

Yaël Ronen
Yaël Ronen*
Affiliation:
Senior Lecturer, Sha'arei Mishpat College, Hod Hasharon, Israel. I am grateful to David Kretzmer for endless conversations, and to Aeyal Gross, Guy Harpaz, Ruth Lapidoth, Ronit Levine-Shnur, Barak Medina, Hilly Moodrick-Even Khen, Robbie Sabel, Yuval Shany, Michal Tamir and Shlomy Zachary for their insightful comments to earlier drafts. Thanks are also due to Yael Naggan for excellent research. yael.ronen@mail.huji.ac.il.
Get access

Abstract

This article examines the applicability of Israel's Basic Law: Human Dignity and Freedom in the West Bank in light of international law, in theory and practice. The first part of the article concerns the need for such applicability in light of alternative domestic and international legal regimes. The article then explores three bases for the extraterritorial application of the law, and examines relevant practice. Finally, the article addresses the consequences of the extraterritorial applicability of the Basic Law for Israel's compliance with its obligations under the law of occupation. It argues that the application of the Basic Law extraterritorially in the West Bank may result in violation of Israel's obligations under the law of occupation.

Keywords

occupationBasic LawHigh Court of Justice (HCJ)extraterritorial applicationsettlershuman rights
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 1 , March 2013 , pp. 135 - 165
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Loizidou v Turkey (Merits) 1996–VI ECHR (18 December 1996), para 56; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136 [107]–[113] (Wall Advisory Opinion)

2 ‘The Judea and Samaria area and the Gaza Strip area have been held by Israel, since the six-day war to date, by way of military occupation or “belligerent occupation”’: HCJ 1661/05 Gaza Coast Regional Council and Others v Israeli Knesset, Response of the State (21 March 2005), para 8.

3 As proposed by Judge Bonello in Al Skeini and Others v UK App No 55721/07 (ECtHR, 7 July 2011), Concurring Opinion, para 24: ‘Once a State is acknowledged by international law to be “an occupying power”, a rebuttable presumption ought to arise that the occupying power has “authority and control” over the occupied territory, over what goes on there and over those who happen to be in it – with all the consequences that flow from a legal presumption’.

4 This issue is pertinent particularly with respect to spheres and responsibilities over which Israel has transferred authority to the Palestinian Authority. The present article focuses on issues over which control remains with Israel

5 CrimA 1/48 Sylvester v The State Attorney 1949 PD 1 5, 29–30, paras 29–32.

6 Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009) 113, para 263CrossRefGoogle Scholar.

7 Human Rights Committee, Lopez Burgos v Uruguay, Communication No R.12/52, view of 6 June 1979, UN Doc Supp No 40 (A/36/40) 176 (1981), para 12.3.

8 Milanovic, Marko, Extraterritorial Application of Human Rights Treaties, Law, Principles and Policy (Oxford University Press 2011) 59CrossRefGoogle Scholar.

9 Al Skeini (n 3) Concurring Opinion of Judge Bonello, para 11.

10 eg, HCJ 1890/03 Bethlehem Municipality and Others v State of Israel and Others (3 February 2005), para 15: ‘[W]e are not called upon to decide the question whether and to what extent the principles of Israeli constitutional law and the international human rights conventions apply in Judaea and Samaria … It is sufficient for us to say that within the framework of the duty of the military commander to exercise his discretion reasonably, he must also take into account, among his considerations, the interests and rights of the local population, including the need to minimize the degree of harm to their freedom of movement’.

11 HCJ 3239/02 Marab and Others v Commander of IDF Forces in the West Bank and Others (5 February 2003), para 20, official translation at http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.pdf.

12 ibid. See also paras 21, 32–34, 36, 49.

13 HCJ 281/11 Beit Ichsa Council Head and Others v Minister of Defence and Others (6 September 2011), para 25.

14 HCJ 5488/04 Alram Local Council and Others v Government of Israel and Others (13 December 2006), para 46.

15 HCJ 1/49 Begerano and Others v Minister of Police and Others 1949 PD 2 80, para 5.

16 Kretzmer, David, ‘Fifty Years of Public Law at the Supreme Court – Human Rights’ (2000) 5 Mishpat Umimshal 297, 300–30Google Scholar (in Hebrew).

17 HCJ 2056/04 Beit Sourik Village Council v Government of Israel and Others 2004 PD 58(5) 807, para 24, official translation at http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf.

18 HCJ 1661/05 Gaza Coast Regional Council and Others v Israeli Knesset 2005 PD 59(4) 481, para 79: ‘[T]he law according to which every Israeli soldier in the disengaged area carries in his rucksack the basic values of Israeli admin cannot override a law of parliament’: Orgad, Liav, ‘Whose Constitution and for Whom'? On the Scope of Application of the Basic Laws’ (2009) 12 Mishpat Umimshal 145, 185Google Scholar (in Hebrew).

19 HCJ 253/99 Sajadia and Others v Minister of Defence 1988 PD 42(3) 801 and HCJ 2690/09 Yesh Din and Others v Commander of IDF Forces in the West Bank and Others (28 March 2010), unofficial English translation at http://www.hamoked.org/files/2010/111511_eng.pdf; Emergency Regulations (Judea and Samaria and the Gaza Strip – Jurisdiction in Offences and Legal Assistance), 1967, s 6, as extended by the Law for Extending the Validity of Emergency Regulations (Judea and Samaria and the Gaza Strip – Jurisdiction in Offences and Legal Assistance), 2012.

20 HCJ 366/03 Commitment to Peace and Social Justice and Others v Minister of Finance and Others (2005) PD 60(3) 46, Dissenting Opinion of Judge Levy.

21 For the existence of such obligations see Ilaşcu and Others v Moldova and Russia ECHR 2004-VII (8 July 2004) and the critique by Milanovic (n 8) 210.

22 It is guaranteed under the Universal Declaration of Human Rights (entered into force 18 December 1948) UNGA Res 217A(III) UN Doc A/810 (1948), art 17, but is not generally accepted as customary international law.

23 Many rights are not enumerated explicitly in the Basic Law but are protected in Israeli jurisprudence, either directly or within the umbrella term of ‘human dignity’.

24 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 18 May 1954) 213 UNTS 222 (ECHR Protocol 1), art 1.

25 Harpaz, Guy and Shany, Yuval, ‘The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’ (2010) 43 Israel Law Review 514CrossRefGoogle Scholar.

26 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, Martens Nouveau Recueil (ser 3) 461 (entered into force 26 January 1910), art 43, and more generally in Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV), art 27.

27 Wall Advisory Opinion (n 1) Dissenting Opinion of Judge Kooijmans on this issue, [34].

28 Dinstein (n 6) 226 para 537, 228 para 542.

29 ibid 225 para 533.

30 Cohen, Amichai, ‘Rules and Standards in the Application of International Humanitarian Law’ (2008) 41 Israel Law Review 1CrossRefGoogle Scholar.

31 ‘Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction’: Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant, Israel, Second Periodic Report, Addendum, UN Doc CCPR/C/ISR/3002/3, 4 December 2001, para 8, paraphrasing the International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2: ‘within its territory and under its jurisdiction’.

32 Israel's Replies to List of Issues to be Taken up in Connection with the Consideration of Israel's Third Periodic Report concerning Articles 1 to 15 of the International Covenant on Economic, Social, and Cultural Rights (E/C.12/ISR/3), UN Doc E/C.12/ISR/3/Add.1, September 2011, response to question 2: ‘In these circumstances Israel can clearly not be said to have effective control in the Gaza Strip, in the sense envisaged by the Hague Regulations. It is against this background that Israel is called on to consider the relationship between different legal spheres, primarily the Law of Armed Conflict and Warfare and Human Rights Law. This relationship remains a subject of serious academic and practical debate. For its part, Israel recognizes that there is a profound connection between Human Rights Law and the Law of Armed Conflict, and that there may well be a convergence between these two bodies of law in some respects. However, in the current state of international law and state practice worldwide, it is Israel's view that these two systems of law, which are codified in separate instruments, nevertheless remain distinct and apply in different circumstances’.

33 ECOSOC, Implementation of the International Covenant on Economic, Social and Cultural Rights, Additional Information submitted by States Parties to the Covenant following the Consideration of Their Reports by the Committee on Economic, Social and Cultural Rights, Addendum, Israel, UN Doc E/1989/5/Add.14, 14 May 2001, paras 2–3. Human Rights Committee (n 31) para 8. This issue arises in every dialogue between Israel and the treaty monitoring bodies with respect to reporting on the West Bank (and, in the view of the treaty bodies, also in the Gaza Strip). Despite Israel's principled stance, in the oral debate Israel does respond to questions relating to spheres where responsibility remains with it and not in the hands of the Palestinian Authority. Committee on Economic, Social and Cultural Rights, Consideration of Reports, Third Periodic Report of Israel, UN Doc E/C.12/2011/SR.36, 22 November 2011, para 56.

34 Marab (n 11) paras 19, 41.

35 HCJ 3969/06 Dir Samet Village Council Head and Others v Commander of IDF Forces in the West Bank and Another (23 July 2007), para 17. Notably, Basic Law: Human Dignity and Freedom does not guarantee freedom of movement within the state. Accordingly it is a weak source for the right of movement within occupied territory. International human rights law therefore offers the strongest basis for this freedom.

36 On the parallel applicability of human rights and the law of occupation see (2007) 42(1) Israel Law ReviewGoogle Scholar; Cerone, John, ‘Human Dignity in the Line of Fire: The Application of International Human Rights Law during Armed Conflict, Occupation, and Peace Operations (2006) 39 Vanderbilt Journal of Transnational Law 1447Google Scholar; Watkin, Kenneth, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict (2004) 98 American Journal of International Law 1, 9CrossRefGoogle Scholar; Modirzadeh, Naz K, ‘The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict’ (2010) 86 US Naval War College International Law Studies (Blue Book) Series 349Google Scholar. The Court would be inconsistent if it were to adopt the position that constitutional law applies extraterritorially, while accepting the state's position that international human rights law does not apply extraterritorially at all, or in occupied territory, or during armed conflict. If the character of international human rights law does not justify its applicability in these circumstances even when it constitutes customary law, there is no justification for applying law emanating from the domestic law of the occupant.

37 HCJ 279/51 Amsterdam v Minister of Finance 1952 PD 6 945, 966; CrimFH 7048/97 John Doe v Ministry of Defence 2000 PD 54(1) 721, para 20, official translation at http://elyon1.court.gov.il/files_eng/97/480/070/a09/97070480.a09.pdf; CrimApp 6659/06 A v State of Israel (11 June 2008), para 9, official translation at http://elyon1.court.gov.il/files_eng/06/590/066/n04/06066590.n04.pdf.

38 The HCJ noted this in Gaza Coast Regional Council (n 18) para 55: ‘It is also not sufficient to determine that they [Israeli settlers] enjoy the common human rights under public international law. Such entrenchment – on which we express no position – with all its significance, cannot create a constitutional problem in Israel. The reason is as follows: when the infringement of a right emanating from common law or from international public law conflicts with an express provision in a law of the Knesset – the law prevails, and no constitutional problem arises’.

39 Yesh Din (n 19) paras 4, 6.

40 For a discussion of the greater political legitimacy of domestic law see Benvenisti, Eyal, ‘Judges and Foreign Affairs: A Comment on the Institut de Droit International's Resolution on “The Activities of National Courts and the International Relations of their State”’ (1994) 5 European Journal of International Law 423, 427CrossRefGoogle Scholar; Shai Dothan, ‘Judicial Tactics in National Courts: A Case Study of the Israeli Supreme Court’ (2011, on file with author).

41 CivApp 6821/93 United Mizrahi Bank Ltd v Midal Cooperative Village and Others 1995 PD 49(4) 221, Concurring Opinion of Justice Shamgar, para 60, official translation at http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf.

42 Shany, Yuval, ‘How Supreme is the Supreme Law of the Land? Comparative Analysis of the Influence of International Human Rights Treaties upon the Interpretation of Constitutional Texts by Domestic Courts’ (2006) 31 Brooklyn Journal of International Law 341, 381–84Google Scholar.

43 ICCPR (n 31) art 20; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85, art 14; International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 195, art 6.

44 Rubin, Benjamin, ‘The Scope of the Application of the Law, State Territory, and What Lies between Them’ (1995) 25 Mishpatim 215, 218 (in Hebrew)Google Scholar.

45 Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Resolution 2625(XXV), 24 October 1970.

46 Canor, Iris, ‘Israel and the Territories: On Private International Law, Public International Law and What Lies between Them’ (2005) 8 Mishpat Umimshal 551, 581–82 (in Hebrew)Google Scholar.

47 Sassòli, Marco, ‘Legislation and Maintenance of Public Order and Civil Life by Occupying Powers’ (2005) 16 European Journal of International Law 661, 668CrossRefGoogle Scholar.

48 Amsterdam (n 37).

49 Barak, Aharon, Interpretation in Law – Statutory Interpretation (Vol 2, Nevo 1993) 578–80Google Scholar; HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel and Others v Minister of Defence and Others (2006) (2) IsrLR 352, para 22: ‘There is a presumption that Israeli legislation applies in Israel and not in the territories, unless it is stated in legislation (expressly or by implication) that it applies in the territories’.

50 Law Amending the Orders of Government and Law Ordinance, 1967, s 11B, and Orders of Government and Law Order (No 1), 1967, s 1.

51 Golan Heights Law, 1981, s 1.

52 Order on Administration of Municipal Councils (Judea and Samaria) (No 892), 1981, Order on Administration of Regional Councils (No 783), 1979. On the legality of extending Israeli law to apply to Israel in the areas of the settlements see Benvenisti, Eyal, The International Law of Occupation (Princeton University Press 2004) 137Google Scholar.

53 Gaza Coast Regional Council (n 2) para 79.

54 HCJ 2722/92 El Amarin v Commander of IDF Forces in the Gaza Strip 1992 PD 46(3) 693, Dissenting Opinion of Justice Cheshin, para 8.

55 HCJ 6026/94 Nazal and Others v Commander of IDF Forces in the West Bank (17 November 1994).

56 For similar arguments regarding the criminal and administrative authority to detain see HCJ 3412/92 Sufian v Commander of IDF Forces in the Gaza Strip and Others 1993 PD 47(2) 843, paras 8–11, 13–15; HCJ 2320/98 El Amla and Others v Commander of IDF Forces in the West Bank 1998 PD 52(3) 346, para 10.

57 Gaza Coast Regional Council (n 2) para 80.

58 HCJ 7957/04 Mara'abe and Others v Prime Minister of Israel and Others (15 September 2005), para 21, official translation at http://elyon1.court.gov.il/files_eng/04/570/079/A14/04079570.a14.pdf. Interestingly, in determining the normative framework, the Court stated (at para 14) that ‘the legal regime which applies in these areas is determined by public international law regarding belligerent occupation’ and by ‘basic principles of Israeli administrative law’. It did not mention Israeli constitutional law.

59 ibid para 21.

60 ibid para 26.

61 ibid para 27.

62 Adalah Legal Centre (n 49) para 22.

63 Dir Samet (n 35) para 10.

64 Penal Law, 1977, s 15.

65 Law for Extending the Validity of Emergency Regulations, 2012 (n 19) s 6B and annex.

66 Compare, on this issue, with Basic Law: Freedom of Occupation, which only protects nationals and residents.

67 HCJ 4593/05 United Mizrahi Bank Ltd v Prime Minister and Others (20 September 2006). For a critique on applying the Basic Law to corporations see Ofer Sitbon, ‘On Persons, Corporations and What Lies between Them – Should Basic Law: Human Dignity and Freedom Apply to Corporations?’ (2009) 8 Kiryat Hamishpat 107 (in Hebrew).

68 Universal Declaration of Human Rights (n 22) art 2.

69 In Al Skeini Judge Bonello recalls that ‘the cornerstone’ and the ‘agenda heralded’ in the Preamble to the European Convention on Human Rights and Fundamental freedoms (entered into force 3 September 1953) 213 UNTS 222 (ECHR), is ‘the universal and effective recognition and observance’ of fundamental human rights. He notes that ‘“Universal” hardly suggests an observance parcelled off by territory on the checkerboard of geography’: Al Skeini (n 3) Concurring Opinion of Judge Bonello, para 9. However, the Preamble refers to ‘securing the universal and effective recognition and observance of the Rights therein declared’: Milanovic (n 8) 56.

70 For a review of state practice see Orgad (n 18) 185.

71 Milanovic (n 8) 81, citing CERD General Recommendation 30; Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd edn, Engel 2005) 54–55, 618–23.

72 Accordingly the exclusivity of the right to enter Israel to nationals under s 6 of the Basic Law does not violate international law.

73 Committee on Economic, Social and Cultural Rights, General Comment 3 (The Nature of States Parties' Obligations) (1990), UN Doc HRI/GEN/1/Rev.9 (vol I) 27 May 2008, para 10. On the customary legal nature of this interpretation see the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22 January 1997, Introduction and para 9.

74 Similarly Mara'abe (n 58) para 21 and HCJ 2150/07 Beit Sira Village Council Head and Others v Minister of Defence and Others (29 December 2009), para 21.

75 Alram (n 14).

76 ibid para 42.

77 ibid.

78 ibid para 45.

79 ibid.

80 Conversely, it distinguished between Palestinian residents in the West Bank who enjoy the protection of the law of occupation from Israeli residents in Israel or in the West Bank, who do not. The Court made no reference to Palestinians residing in Israel – but see Salameh, text to n 82.

81 Alram (n 14) para 46.

82 HCJ 1073/04 Salameh and Others v Commander of Central Command and Others (6 August 2006), para 12.

83 Khen, Hilly Moodrick-Even, ‘Obligations at the Border: The Obligations of an Occupying State towards an Occupied State’ (2005) 8 Mishpat Umimshal 471 (in Hebrew)Google Scholar.

84 Barak-Erez, Daphne and Gilead, Israel, ‘Human Rights in Contract Law and Tort Law: The Quiet Revolution’ (2009) 8 Kiryat Hamishpat 11, 16 (in Hebrew)Google Scholar. According to a more expansive interpretation of the Basic Law, such as that of former Chief Justice Barak, according to which the Basic Law also creates obligations on individuals (Barak, Aharon, Interpretation in Law – Constitutional Interpretation (Vol 3, Nevo 1994) 367Google Scholar), the question of the Basic Law applicability outside state territory is even wider because it may involve the obligations of the territory's inhabitants.

85 Barak, ibid 449.

86 Adalah Legal Centre (n 49) para 22.

87 ibid.

88 Marab (n 11) para 20 (emphasis added). The official translation is grammatically incorrect and inaccurate. The present translation is provided given the significance of the precise wording.

89 HCJ 3278/02 The Center for the Defense of the Individual founded by Dr Lota Salzberger and Others v Commander of the IDF Forces in the West Bank (18 December 2002), paras 23–24, official translation at http://elyon1.court.gov.il/files_eng/02/780/032/A06/02032780.a06.pdf.

90 HCJ 769/02 The Public Committee against Torture in Israel and Another v Government of Israel and Others (13 December 2006), Concurring Opinion of Justice Rivlin, para 4, official translation at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.

91 Basic Law: The Government, s 40(b); The Public Committee against Torture, ibid para 19.

92 Barak-Erez, Daphne, Administrative Law, Vol 1 (The Israel Bar Publishing House 2010) 18Google Scholar.

93 Barak (n 84) 367.

94 Nazal (n 55) para 13.

95 El Amarin (n 54) Dissenting Opinion of Justice Cheshin, para 8. One might argue that the ‘law’ which permits limitations on rights includes customary international law, including the law of occupation. However, the fact that the law of occupation stipulates that local law continues to prevail in the territory does not render local law part of the law of occupation itself.

96 Text at nn 54–56, 87.

97 HCJ 10356/02 Hess and Others v Commander of IDF Forces in the West Bank and Others 2004 PD 58(3) 443, para 1.

98 ibid para 15.

99 ibid para 8.

100 ibid.

101 This reading of the ruling is supported in the subsequent statement that the military commander is entrusted with protection of constitutional human rights: ibid para 9. Since the military commander is not entrusted with the protection of domestic law, presumably ‘constitutional’ refers not to the normative source of rights but to their substance.

102 ibid para 15.

103 ibid para 17.

104 ibid para 19.

105 According to the view of former Chief Justice Barak, the spirit of the limitation clause, namely the proportionality test, applies within the law of occupation, as discussed above.

106 Bethlehem Municipality (n 10) para 11, official translation at http://elyon1.court.gov.il/files_eng/03/900/018/N24/03018900.n24.pdf.

107 ibid para 12.

108 ibid para 15. Human dignity is also mentioned in GC IV (n 26) art 27, and its mention may therefore be a reference to the law of occupation.

109 Bethlehem Municipality (n 10) para 20.

110 For example, HCJ 4331/10 Hebron Municipality and Others v State of Israel and Another (19 February 2012).

111 HCJ 7862/04 Abu Dahr v Commander of IDF Forces in the West Bank (16 February 2005), para 8.

112 ibid para 10.

113 ibid paras 8 and 10.

114 HCJ 9593/04 Murar and Others v Commander of IDF Forces in the West Bank and Another (19 January 2006), para 13.

115 ibid para 14.

116 HCJ 7615/07 Barghuti and Another v Commander of Military Forces in the West Bank (25 May 2009), para 12.

117 The latter right referred to in HCJ 2245/06 Member of Knesset Neta Dovrin and Another v Prison Service and Others (13 June 2006), regarding the right to liberty under Basic Law: Human Dignity and Freedom.

118 Adalah Legal Centre (n 49) para 23.

119 ibid para 24.

120 ibid para 25.

121 ibid, Concurring Opinion of Justice Gronis, paras 2–3.

122 ICCPR (n 31) art 2(3), ECHR (n 69) art 13; Nowak (n 71) 62 marginal 62.

123 eg Dir Samet (n 35) para 17.

124 Dinstein (n 6) 113 para 263.

125 See the Preamble to Coalition Provisional Authority Order No 7 (Penal Code), 10 June 2003, http://www.unhcr.org/refworld/docid/452524304.html; and Coalition Provisional Authority Memorandum No 3 (Revised), Criminal Procedures [Iraq] No 3 (Revised), 27 June 2004, s 1(1)(c), http://www.unhcr.org/refworld/docid/469cd1b32.html, which notes the need to modify aspects of Iraqi law which violate basic standards of human rights law. Both are orders of the military commander of the forces of occupation in Iraq.

126 Dinstein (n 6) 121–22 paras 282–83. Dinstein suggests that modification of the law of occupied territory by duplication of the occupying power's domestic law is evidence of the latter's sincerity in undertaking the modification of local law, Notably, this was said with respect to adopting the domestic standard through military legislation, not to applying domestic law extraterritorially.

127 For a critique of the legal imperialism of human rights law argument with respect to the ECHR in occupied territory outside Europe see Wilde, Ralph, ‘Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms’ (2009) 42 Israel Law Review 80CrossRefGoogle Scholar.

128 For a discussion of this issue see Gross, Aeyal M, ‘Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?’ (2007) 18 European Journal of International Law 1CrossRefGoogle Scholar.

129 Abu Dahr (n 111) in part.

130 Law for Amending and Extending the Validity of Emergency Regulations (Judea and Samaria and the Gaza Strip – Jurisdiction in Offences and Legal Assistance), 2007, art 6.

131 Yesh Din (n 19) paras 4, 6. The Court could have enquired whether a narrower interpretation of the law could be in line with GC IV (n 26), thereby reconciling the two bodies of law, rather than resorting to conflict-resolving rules that are only valid within the Israeli legal system.

132 ICCPR (n 31).

133 UNGA Res 43/173, UN Doc A/RES/43/173, 9 December 1988; Yesh Din (n 19) para 7.

134 Yesh Din (n 19) para 13.

135 ibid para 14.

136 ibid para 14.

137 ibid para 13.

138 The HCJ noted that ‘the scope of the human right of the Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right’: Mara'abe (n 58) para 22, citing Gaza Coast Regional Council (n 18) para 126. The Court referred to the fact that Israelis are not owners of real property but are lessors. Notably, however, this limitation on rights was acknowledged in the relationship between the government and individuals. No limitations on the constitutional rights of Israelis were imposed on the ground of satisfying the rights of Palestinian individuals under the law of occupation.

139 On the internal contradictions and vagueness of the West Bank's status under Israeli policy see Gordon, Neve, Israel's Occupation (University of California Press 2008) IntroductionCrossRefGoogle Scholar.

140 Canor (n 46); Paz-Fuchs, Amir and Ronen, Yaël, ‘Occupational Hazards: Labor Rights in the Occupied Territories’ (2012) 30 Berkeley Journal of International Law 580Google Scholar.

141 Mara'abe (n 58) para 21.

142 HCJ 9594/09 Legal Forum for Eretz Israel and Others v Ministerial Committee for National Security and Others (21 April 2010), para 19.

143 HCJ 69/81 Abu Itta and Others v Commander of IDF Forces in the West Bank and Others 1983 PD 37(2) 197, 320–21. The stance that promoting the welfare of the population in the occupied territory justifies the pursuit of interaction with the sovereign territory is not free of difficulties. The population may benefit (financially, in the case of value added tax) in the immediate term, but in the long term uniformity may weaken the occupied territory and even create dependence on the sovereign territory. A preference for welfare in the immediate term may be justified as military necessity. For a critique of the Abu Itta ruling see Benvenisti (n 52) 141–44.

144 Paz-Fuchs and Ronen (n 140).