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Published online by Cambridge University Press: 04 July 2014
On 15 February 1999, the Director-General of the Israeli Ministry of Foreign Affairs sent a letter addressed to the Heads of the Diplomatic Missions in Israel concerning “recent meetings held by diplomatic representatives in the Orient House in Jerusalem”. This letter noted that under the Israeli-Palestinian agreements, Jerusalem is one of the final status negotiations issues and that as the jurisdiction of the Palestinian Council does not cover Jerusalem, the Council cannot locate its offices in the City. The letter also took the position that holding meetings at the Orient House was “a clear and serious violation” of the agreements. The Heads of the Diplomatic Missions were therefore urged not to encourage or participate in “any such violation” — nor to allow their staff and visitors to do so.
1 The following section regarding the legal status of Jerusalem is based on research conducted by the author for the Jerusalem Institute for Israel Studies.
2 Author's files. On 17 May 1999, Israel's General elections and the direct Prime-Ministerial elections took place. Press reports suggested that the sending of the letter by Director-General Eytan Bentsur was related to the election campaign. See Eldar, A., “Netanyahu is Internationalizing Jerusalem”, Ha'aretz (English Edition), 11Google Scholar March 1999, and Ha'aretz's editorial of 14 March 1999, titled “Elections Diplomacy”.
3 See Declaration of Principles on Interim Self-Government Arrangements, signed in Washington DC, 13 September 1993; United Nations Document A/48/486-S/26560 (Annex) of 11 October 1993; (1993) 32 I.L.M. 1525; (1994) 28 Is. L.R. 442 (hereinafter: “the Declaration of Principles”), Agreed Minutes to Article IV; Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington DC, 28 September 1995, 33 K.A. 1 (hereinafter: “the Interim Agreement”). On this agreement, see Giladi, R.M., “The Practice and Case Law of Israel in Matters Related to International Law”, (1995) 29 Is. L.R. 506CrossRefGoogle Scholar, section titled “The Peace Process: The 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip”.
4 Article I.7, Interim Agreement. On the effect of the Israeli-Palestinian agreements on the status of Jerusalem, see Lapidoth, R., “Jerusalem and the Peace Process”, (1994) Is. L.R. 402Google Scholar; Lapidoth, R., “Jerusalem — Past, Present and Future” (1996) 48 Revue Internationale de droit comparé 9CrossRefGoogle Scholar; Lapidoth, R., “Jerusalem — Some Jurisprudential Aspects”, (1996) 45 Catholic Univ. L.R. 661Google Scholar.
5 The Orient House has been operating as a Palestinian political center at least since the days of the October 1991 Madrid Conference, when it housed the Palestinian faction of the Joint Jordanian-Palestinian delegation. Since the signing of the Declaration of Principles and the establishment of Palestinian autonomous institutions, Israel made several attempts to curb these activities. In this regard, one might mention the letter sent on 11 October 1993 by the then Foreign Minister Shimon Peres to his Norwegian counterpart, Jurgen Hoist. The letter reads: “I wish to confirm that the Palestinian institutions of East Jerusalem and the interests and well-being of the Palestinians of East Jerusalem are of great importance and will be preserved. Therefore, all the Palestinian institutions of East Jerusalem, including the economic, social, educational, cultural and the holy Christian and Moslem places are performing an essential task for the Palestinian population. Needless to say, we will not hamper their activity; on the contrary, the fulfillment of this important mission is to be encouraged”. The Jerusalem Post daily published the letter on 7 June 1994. On the disputed legal status of this letter and its correct interpretation, see Singer, J., “Aspects of Foreign Relations Under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and the Gaza Strip”, 28 (1994) Is. L.R. 268, at 292–293Google Scholar; Lapidoth, supra n. 4, at 428-430. See also Mussalam, S., The Struggle for Jerusalem: A Programme of Action for Peace (Jerusalem, PASSIA, 1996)Google Scholar chaps. 4 and 5.
6 This Note Verbal was not officially published; approximate text appears in Eldar, A., “EU Asserts Jerusalem is Not Israeli”, Ha'aretz (English Edition) 11 March 1999Google Scholar.
7 United Nations General Assembly Resolution 181(II) concerning the Future Government of Palestine of 29 November 1947, 2 UNGAOR, Resolutions, p. 131; U.N. Doc. A/519 (1947).
8 See Hashemite Kingdom Jordan-Israel General Armistice Treaty, of 3 April 1949, 1 K.A. No. 3, 35. On the role of the Jordan in regard to Jerusalem see Giladi, R.M. and Merhav, R., “The Role of the Hashemite Kingdom of Jordan in a Future Permanent Status Settlement in Jerusalem: Legal, Political and Practical Aspects”, in Breger, M. and Ahimeier, O., eds., Jerusalem: Essays Towards Peacemaking (Syracuse University Press, in cooperation with the Jerusalem Institute for Israel Studies, forthcoming)Google Scholar.
9 The analysis as well as the categorization presented here are based on R. Lapidoth, supra n. 4; Hirsch, M., Hausen-Couriel, D. and Lapidoth, R., Wither Jerusalem — Proposals and Positions Concerning the Future of Jerusalem (The Hague/London/Boston, Martinus Nijhoff Publishers, 1995) esp. 15–21Google Scholar. See also Eisner, M., “Jerusalem: An Analysis of Legal Claims and Political Realities”, 12(2) Wisconsin Int'l L. J. 221Google Scholar.
10 See Lauterpacht, E., Jerusalem and the Holy Places (London, Anglo-Israel Association, 1968) 36Google Scholar. A strong support for this argument can be found in Eisner, supra n. 9, at 256.
11 Variants of this view can be found in Blum, Y.Z., The Juridical Status of Jerusalem (Jerusalem, Leonard Davies Institute for International Relations, 1974)Google Scholar; Lauterpacht, supra n. 10; Schwebel, S.M., “What Weights to Conquest?” (1970) 64 Am. J. Int'l L. 344CrossRefGoogle Scholar. According to these views, no other state has a better relative title to the territory in question than Israel.
12 Cattan, H., Jerusalem (New York, St. Martin's Press, 1981) 104Google Scholar. See also the analysis in the authorities cited supra n. 9.
13 Talal, Hassan Bin, A Study of Jerusalem (London, Longman, 1979)Google Scholar. See also the analysis in the authorities cited supra n. 9. For a similar view, see Draper, G.I.A.D., “The Status of Jerusalem as Question of International Law”, in Kochler, H., ed., The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem (Wien, Braumuler, 1981) (hereinafter: “Köchler”) 154Google Scholar.
14 More on this view, see infra, Part C.
15 See references cited supra n. 11; Gruhin, M.I., “Jerusalem: Legal and Political Dimensions in a Search for Peace”, (1980) 12 Case Western J. Int'l L. 169Google Scholar; Stone, J., Israel and Palestine — Assault on the Law of Nations (Baltimore, 1981)Google Scholar. See also the analysis in the authorities cited supra n. 9.
16 Compare the views of Schwebel, supra n. 11, and Blum, supra n. 11
17 See reference cited supra n. 12; similar views can be found in Van Dusen, M., “Jerusalem, the Occupied Territories, and the Refugees”, in Khaddurie, M., ed., Major Middle Eastern Problems in International Law (Washington D.C., American Enterprise Institute for Public Policy Research, 1972) 37Google Scholar; Quigley, J., “Old Jerusalem: Whose to Govern?”, (1991) 20 Denver J. Int'l L. and Policy 145Google Scholar. See also the analysis in the authorities cited supra n. 9.
18 See discussion infra, Part C.
19 On which see Nevo, Joseph, King Abdalla and Palestine: A Territorial Ambition (Oxford, 1996)CrossRefGoogle Scholar.
20 See Dinstein, Y., “Autonomy”, in Dinstein, Y., ed., Models of Autonomy (New Brunswick, Transaction Books, 1981) 300Google Scholar. It is not clear how the 1988 Jordanian disengagement from the West Bank affects this view. On the disengagement, see Speech of 31 July 1988 by King Hussein, (1988) 27 I.L.M. 1637; Lapidoth, R. and Hirsch, M., eds., The Arab-Israel Conflict and Its Resolution: Selected Documents (Dordrecht, Martinus Nijhoff Publishers, 1992) (hereinafter: “The Arab-Israel Conflict”) 21Google Scholar; see also (1987/1988) IV Palestine Yrbk. Int'l L. 30.
21 Prior to 1980, about a dozen more embassies were located in Jerusalem. These moved to Tel-Aviv, however, following the enactment by Israel of Basic Law: Jerusalem Capital of Israel, 1980: 34 L.S.I. 209; Lapidoth, R. and Hirsch, M., eds., The Jerusalem Question and Its Resolution: Selected Documents (Dordrecht, 1994) (hereinafter: “The Jerusalem Question"”) 322Google Scholar. This action was taken pursuant to United Nations Security Council Resolution 478, which considered the Basic Law “a violation of international law”. This resolution also called upon member states with embassies in Jerusalem to withdraw them from the city: Resolution 478 of 20 August 1980, UNSCOR, 35th Yr, 1980, Resolutions, at 14; The Jerusalem Question, at 351.
22 See, for example, United Nations Security Council Resolution 478, ibid.
23 Lapidoth, R., Jerusalem — Some Legal Aspects (Jerusalem, Jerusalem Institute for Israel Studies, 1997, in Hebrew) 15Google Scholar, and the references cited at 35, nn. 61-62.
24 Ibid. See aslo Whiteman, M., “Corpus Separatum: Jerusalem”, 1 Digest of Int'l L. 594, at 595Google Scholar: The Government of the United States … continues to adhere to the policy that there should be a special international regime for Jerusalem … which will be acceptable to Israel and Jordan as well as the world community”. This is how the United States explained its non-recognition “of Jerusalem as the capital of Israel and, by implication, as Israel's de facto sovereign territory”, (ibid., at 594).
25 See the examples brought by Cassese, infra n. 33, at 34-35, nn. 67-70.
26 The term (territorial) “internationalization”, according to Wolfram, describes “… a situation where a territory … within the territory of one State [is]… brought under the protection or control of another State or of several States. One feature of this concept is that the territorial sovereignty of a specific State is limited in favour of another State, a larger group of States or the community of States as a whole … [The] … benefit of internationalization … must be founded on the common interests of a larger group of States. Internationalization always results in the establishment of some form of direct or indirect international administration … exercised by an international organization or by one or more States acting on behalf of the community of States”.; Wolfram, R., “Internationalization”, in Bernhardt, R., Encyclopedia of Public International Law, (Vol. II, 1995) 1395Google Scholar.
27 The Trusteeship Council prepared two draft statutes for Jerusalem. See U.N. Doc. T/118/Rev.2 (1948) and UNGAOR, 5th Sess. 1950, Supp. 9 (A/1286), Annex 2, p. 19. More on the history of the move to internationalized Jerusalem see Lauterpacht, supra n. 10; and Van Dusen, M., “Jerusalem, the Occupied Territories, and the Refugees”, in Khaddurie, M., ed., Major Middle Eastern Problems in International Law (Washington D.C., 1972) 37Google Scholar. See also the analysis in the authorities cited supra n. 9.
28 Mallison, W.T. and Mallison, S.V., The Palestine Problem in International Law and World Order (London, Longman, 1986) (hereinafter: “Mallison & Mallison”) 207–239Google Scholar (on the legal status of Jerusalem). W.T. Mallison and S.V. Mallison, “The Jerusalem Problem in Public International Law: Juridical Status and a Start Towards Solution”, in H. Köchler, at 98. See also the analysis in the authorities cited supra n. 9.
29 Their legal position on Resolution 181(II) can be found ibid., at 142-173, and in Mallison, W.T. and Mallison, S.V., An International Law Analysis of the Major United Nations Resolutions Concerning the Palestine Question (New York, United Nations, 1979) ST/SG/SER.F/4, at 9–27Google Scholar.
30 Ibid., at 228. De lege ferenda they opine that the internationalization plan, the corpus separatum or the expression “the legal status of the City” which were referred to in various United Nations resolutions “provides a measure for legal authority for the status of internationalization”, ibid., at 236. The authors themselves do not argue that the Resolution 181(II) scheme is binding in that it precludes any other final settlement of the status of Jerusalem. If the “principle of the corpus separatum remains valid” — as they argue — then how come they bother discussing, let alone recommend, any other solutions? The internationalization of Jerusalem sought to serve the interests of European religious and political powers rather than regulate a bilateral compromise between the prospective Jewish and Arab States the establishment of which was recommended by Resolution 181(II). If it is valid — if it has been valid to begin with — this logic would make Israeli-Palestinian agreement on the future status of Jerusalem irrelevant. A similar view supporting the validity of the “concept of corpus separatum” can be found in Mazzawi, M.E., Palestine and the Law: Guidelines for Resolution of The Arab-Israel Conflict (Reading, 1997) at 239–261Google Scholar. See also The Status of Jerusalem, prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People (United Nations, New York, 1997).
31 See Quigley, supra n. 17, at 157-158.
32 Supra n. 13, at 163. In his opinion, the right of self-determination of the Palestinian people must play an important role in any settlement.
33 Cassese, A., “Legal Considerations on the International Status of Jerusalem”, (1986) III Palestine Yrbk Int'l L. 13Google Scholar. See also A. Cassese, “Legal Considerations on the International Status of Jerusalem”, in Köchler, at 144.
34 Ibid., at 18.
35 Ibid., at 21. A similar conclusion applies to Jordan's position, albeit for different reasons.
36 Ibid., at 32. Note that Cassese rejects Lauterpacht's argument (supra n. 10, at 23-36) that since 1952 the United Nations has acquiesced in the demise of internationalization scheme (at 22, 25 and 32 et seq.). He also denies that post-1967 United Nations resolutions (by failing to make any mention to internationalization in the text of the resolutions or, indeed, at the preceding debate) indicate the willingness of the organization to forgo internationalization and have the city divided between two sovereign State (at 33 et seq.) For an analysis of the United Nations post-1967 resolutions see Mallison & Mallison, supra n. 28, at 228. See also Malanczuk, , “Jerusalem”, in Bernhardt, R., ed., Encyclopedia of Public International Law (The Netherlands, North-Holland, 1990) 184Google Scholar.
37 Cassese, supra n. 33, at 33-34 (emphasis added). The operative result of this opinion is that whatever the future settlement of the status of Jerusalem dictates, it shall have no valid force without the United Nation's approval.
38 Recall that under Article 10 of the United Nations Charter, the competence of the General Assembly is limited to making recommendations. Cf. Article 39 of the Charter, empowering the Security Council to, inter alia, make “decisions”.
39 Supra n. 36.
40 UNSCOR, 22nd Yr., Resolutions and Decisions, p. 8. This milestone resolution not only fails to mention Jerusalem but in fact shifted focus to an agreed peaceful settlement based on Israeli withdrawal from territory occupied in the 1967 conflict — which makes a strong implication of recognition of Israeli sovereignty in West Jerusalem much more than it implies a reiteration of the corpus separatum. See Eisner, supra n. 9, at 254-256, who also makes an interesting substantive argument against internationalization. “[F]rom the perspective of international law”, writes Eisner, “the idea of a corpus separatum over Jerusalem conflicts with the principle of self-determination. Imposing an international regime over an unwilling population would negate the right of Jerusalem's inhabitants to determine their own destiny and choose their own sovereign”, ibid., at 256.
41 Text accompanying n. 6, supra.
42 Paragraph 8 of the Venice Declaration thus states: “The Nine recognize the special importance of the role played by the question of Jerusalem for all the parties concerned. The Nine stress that they will not accept any unilateral initiative designed to change the status of Jerusalem and that any agreement on the city's status should guarantee freedom of access for everyone to the Holy Places.” Venice Declaration on the Middle East adopted by the European Council, 13 June 1980, Bulletin of the European Communities, 6-1980, p. 10. Although this declaration indicates that other parties may be interested in a settlement in Jerusalem, this settlement is to be agreed by the parties rather than prescribed by Resolution 181(II). Cassese notes that “the apparent implication is that the EEC members do not intend to recognize the alleged sovereignty of Israel over Eastern Jerusalem, and take the view that only through an international agreement can a final settlement be reached (supra n. 33, at 35-36).
43 Declarations issued by the European Union, United Nations Doc. A/51/447-S/1996/825 and United Nations Doc. A/52/86-S/1997/181. The Luxembourg Declaration of 13 December 1997 expresses the willingness of the European Union to contribute to permanent status negotiations, including Jerusalem.
44 The last component of the Note Verbal expresses the refusal of the European Union to change its custom regarding meetings in Jerusalem. This issue involves the question of the legality of these meetings under the Oslo agreements which are not the focus of this review (see, however, supra n. 3). It also raises the question of legality under general international law — which depends, ultimately, on the question of sovereignty and will therefore not be reopened.
45 Jerusalem District Court, before Justice M. Ravid. As yet unpublished — Takdin (Dist. Ct.) 98(iii) 4. Judgment delivered on 6 September 1998.
46 Supreme Court, before President Barak, Justice T. Orr, Justice E. Mazza, Justice Y. Kedmi, Justice M. Ilan. As yet unpublished — Takdin (Sup. Ct.) 99(i) 1225. Judgment delivered on 25 February 1999. Note that a motion for diyun nosaf of the Supreme Court was rejected by Vice-President S. Levine on 18 March 1999: D.N. 1210/99, The State of Israel v. Samuel Sheinbein — as yet unpublished.
47 See, for example, Statement by the Spokesman of the Israeli Ministry of Foreign Affairs, 25 February 1999 (http://www.israel-mfa.gov.il/mfa/go.asp?MFAH0dx20).
48 Extradition Law, 1954, L.S.I. 174. For the Bill and Explanatory Notes, see Extradition Bill, 1953, H.H. 208.
49 Feller, S.Z., Extraditional Law (Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, Hebrew University of Jerusalem, Jerusalem, 1980) 116–117, at 119Google Scholaret seq. (hereinafter: “Feller”). As Feller notes, this legal position was adopted lest the effect of the extradition laws, combined with the automatic right of return granted to Jews in Israel, would be the creation in Israel of a “safe heaven” for Jewish criminals (see Section 1, Law of Return, 1950, 4 L.S.I. 114 and Section 2(a) of the Nationality Law, 1952, 6 L.S.I. 50). This point was relied upon throughout the proceedings in the Sheinbein case. Feller himself criticizes this arguments, and supports non-extradition of nationals: ibid., at 120-121.
50 Convention on Extradition between the Government of the State of Israel and the Government of the United States of America, signed in Washington D.C. on 10 December 1962, in force 5 December 1963; 13 K.A. 505, at 795.
51 See Penal Law (Offences Committed Abroad) (Consolidated Version), 1973, 27 L.S.I. 32. See Feller, S.Z., “Neither Extradition Nor Punishment Or Punishment Where There Is No Extradition”, (1978) 9 Mishpatim 134Google Scholar.
52 (1978) L.S.I. 63. For the Bill and Explanatory Notes, see (1977) H.H. 258.
53 For a criticism of the 1978 amendment, see Shachor-Landau, C., “Extra-Territorial Penal Jurisdiction and Extradition”, (1980) 29 Int'l and Comp. L.Q. 274CrossRefGoogle Scholar. See also Meron, T., “Non-Extradition of Israeli Nationals and Extraterritorial Jurisdictions: Reflections on Bill No. 1306”, 13 Is. L.R. 215Google Scholar; Goldman, , “Extradition From Israel”, (1983) Michigan Yrbk Int'l Legal Studies 173Google Scholar.
54 On the legal position prior to the 1978, see Pesachovitz v. The Attorney-General (1974) P.M. 3, at 306 (District Court); Pesachovitz v. The State of Israel (1977) 31(ii) P.D. 449. Today, the criminal jurisdiction of the State of Israel is regulated by Penal Law (Amendment No. 39) (Introductory Part and General Part), 1994, S.H. 1994, No. 1481, p. 384, on which see Giladi, R.M., “Israel's Extra-Territorial Criminal Jurisdiction”, in “The Practice and Case Law of the State of Israel in Matters Related to International Law”, (1997) 31 Is. L.R. 803, at 836Google Scholar.
55 See Section 4 of the Extradition Law, 1954, supra n. 48.
56 Section 14(c) of the Nationality Law, 1952, supra, n. 49, provides that Israeli residents living abroad will be treated, for the purposes of that law, as Israeli nationals as long as they have not settled abroad.
57 Paragraph 105 of Justice Ravid's judgment.
58 Paragraph 112 of Justice Ravid's judgment. Article 27 (Internal Law and Observance of Treaties) provides: “A Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46”. Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, United Nations document A/CONF.39/27 (1969) 63 Am. J. Int'l L. 875; (1969) 8 I.L.M. 679.
59 (1998) H.H. 2707, p. 330. The bill has since been enacted: the Extradition Law (Amendment No. 6), 1998, S.H. 1998, No. 1708, p. 138. A similar conclusion was reached by President Barak in the appeal: see infra, n. 73. See also Meron, supra n. 53, at 220-221; Goldman, supra n. 53, at 198.
60 More on which see infra, n. 85; note, however, that Israel is not at all a party to the Vienna Convention. On the other hand, there can be no doubt that this provision reflects customary international law.
61 See Goldman, supra n. 53, at 50, cited by the Court.
62 Paragraph 120 of Justice Ravid's judgment.
63 Paragraphs 122-123 of Justice Ravid's judgment.
64 With whom Justice Y. Kedmi concurred.
65 Here, President Barak cited from Lord Cockburn, C.J., Report of the Royal Commission, 1878, and Forest, G.V. La, Extradition To and From Canada (2nd ed., 1977) 79Google Scholar.
66 Paragraph 14 of the President's judgment. The President expressed discontent with these purposes, yet considered himself bound to uphold them.
67 Paragraph 15 of the President's judgment.
68 Supra n. 49.
69 Paragraph 16 of the President's judgment.
70 Paragraph 17 of the President's judgment. See also supra n. 58, and accompanying text.
71 On the interpretation of statute law to uphold the international obligations of the State, see infra., n. 88.
72 The President cited the International Court of Justice in the Nottebohm case: Lichtenstein v.Guatemala (1955) International Court of Justice Reports 4, at 22.
73 To whom Justices A. Mazza and M. Ilan joined.
74 Paragraph 19 of Justice Orr's judgment.
75 Paragraphs 5-6 of Justice Orr's judgment, citing the Chairman of the Constitution, Law and Justice Committee at the presentation of the Bill: D.K. 81, at 1032.
76 Paragraph 5 of Justice Orr's judgment.
77 Specifically, Justice Orr cited Meron, supra n. 53, at 222.
78 Paragraph 7 of Justice Orr's judgment. This fact served as the basis of a proposed change in the amendment to the effect of enabling extradition of nationals to States which extradite their own nationals; this proposal, however, has been rejected by the Knesset.
79 See infra.
80 Paragraph 8 of Justice Orr's judgment. Justice Orr also found support in the governmental Bill limiting non-extradition to resident nationals alone: see paragraph 19 of Justice Orr's judgment. For the 1998 Bill, see supra, n. 59.
81 Paragraphs 10-13 of Justice Orr's judgment.
82 See Sections 4A and Section 7A of the enacted the Offences Committed Abroad (Amendment of Enactments), 1978. A similar distinction noted by Justice Orr can be found in the Transfer of Prisoners to Their Countries Law, 1996. Another point raised by Justice Orr was based on Section 5 of Basic Law: Human Dignity and Liberty, guaranteeing freedom from extradition (S.H. 1992, No. 1391, p. 150, 25 March 1992; amended by the Basic Law: Human Dignity and Liberty — Amendment, S.H. 1994, No. 1454, p. 90, 10 March 1994. An unofficial translation of Basic Law: Human Dignity and Liberty, as amended, appears in Barak, A., “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law”, in International Conference on Rights of the Accused, Crime Control and Protection of Victims, 31 (1997) Is. L.R. 3, at 21–23Google Scholar. The citations here are based on this translation).
83 See supra n. 49.
84 Supra n. 59.
85 See Lapidoth, R., “International Law within the Israel Legal System”, (1990) 24 Is. L.R. 451, at 458Google Scholar; Lapidoth, R., “International Law”, in Zamir, Y. and Colombo, S., eds., The Law of Israel: General Surveys (Faculty of Law, Haifa University, published by the Harry and Michael Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1995)Google Scholar. The reasons for this rule lie in the treaty making power of the executive. See Giladi, R.M., “The International Treaties (Approval by the Knesset) Bill, 1998, in “The Practice and Case Law of the State of Israel in Matters Related to International Law”, (1998) 32 Is. L.R. 475CrossRefGoogle Scholar.
86 In the Samara case, Justice Berinson held that the untransformed 1949 Israeli-Jordanian General Armistice Agreement could not be relied upon by the respondents: “Whatever may be the effect and validity of such a treaty from the point of view of international law, it does not constitute a law to which our courts will have recourse or which they will enforce. The rights it confers and the duties it imposes are those of the States which concluded the agreement, and only those States can realize these rights and duties … Such a treaty is in no way within the jurisdiction of the courts in the State, unless and to the extent that the treaty or the rights and obligations it entails have gone through the melting pot of the legislation of the State and have assumed the form of binding law”. Custodian of Absentee Property v. Samara et al., (1956) 10 P.D. 1825, at 1829.
87 Supra n. 85, at 468.
88 Benvenisti, E., “The Influence of International Human Rights Law on the Israeli Legal System: Present and Future”, (1994) 28 Is. L.R. 136, at 138Google Scholar.
89 Supra n. 86.
90 Paragraph 7 of Justice Orr's judgment.
91 Paragraph 19 of Justice Orr's judgment.
92 Paragraph 76 of Justice Ravid's judgment. This language, which focuses on the relevant considerations in the making of a judicial decision, resembles the ruling of the Supreme Court in the Tibi case, where it was held by President Barak that “… the existence of an international agreement is certainly a factor to be given consideration in the exercise of municipal governmental authority”: Ahmed Tibi v. The Government of Israel et al., (unpublished; judgment delivered on 18 October 1995), page 2 of the judgment. Note that this decision concerned an executive rather than judicial decision. On this ruling see Giladi, R.M., “The Effect of International Treaties Within the Israeli Legal System”, in “The Practice and Case Law of the State of Israel in Matters Related to International Law”, (1995) 29 Is. L.R. 506, at 535Google Scholar.
93 Paragraph 80 of Justice Ravid's judgment.
94 Paragraph 112 of Justice Ravid's judgment; see supra n. 58.
95 Paragraph 112 of Justice Ravid's judgment. Here the judge cited Dinstein advocating such a course of action: “Where there is no escape from the conclusion that the statute and the [extradition] agreement contradict each other [the Courts have to give preference to the statute and rule by it]. Before the Court reaches such a conclusion — which may entail acute consequences on the international plane … the Court must make a special effort to reconcile the statute and the agreement. Particularly where extradition is concerned, it is better to seek every way to allow co-existence of the Extradition Law-1954 and a particular extradition treaty”. Dinstein, Y., “The Principle of Specialty in Extradition”, (1975) 4 Iyunei Mishpat 682, at 691Google Scholar. Justice Ravid also cited President Barak's view that the presumption that Israeli law is compatible with public international law applies whether or not the statute is ambivalent and ambiguous, and that this presumption may even refute a special purpose of an enactment. See Barak, A., Interpretation in Law, Vol. II: Statutory Interpretation (Jerusalem, 1993, in Hebrew) 575–578Google Scholar.
96 Paragraphs 116 and 123 of Justice Ravid's judgment. Moreover, in the particular context of extradition, because of the close nexus between an extradition agreement and the municipal extradition law, a measure of flexibility has to be employed so that “that which is regulated by treaties to which Israel is a Party and by which Israel has undertaken to abide, should find a path into the law of the State”: paragraph 122, ibid. Similar yet much less explicit was the position of President Barak in the Supreme Court, who agreed that the “gap” between the Extradition Convention and the 1978 amendment should be diminished by interpreting the term “national” in Section 1A restrictively: Paragraph17 of the President's judgment.
97 In the Tel Aviv-Jaffa Magistrate Court; unpublished — judgment delivered on 27 September 1998.
98 The judgment does not specify the acts for which the suit was brought.
99 Signed by Israel on 18 April 1961 and ratified on 11 August 1990; for the text of the Convention, see 22 K.A. No. 749; 500 United Nations Treaty Series 95; (1961) 55 I.L.M. 1064 (hereinafter: “the Vienna Convention”).
100 Cf. Diplomatic and Consular Immunities and Privileges Bill, 1967, 28 H.H. No. 750, 32 which was never enacted. On the legal position in Israel with regard to the conclusion of treaties and their effect in Israeli law, see Lapidoth, supra n. 85, Giladi, supra n. 85.
101 Ibid.
102 Ibid.
103 Lapidoth, General Surveys, supra n. 85, at 92. This position is well based in the jurisprudence of Israeli courts: see the authorities cited ibid.
104 This case consists of three different decisions: the first concerned the jurisdiction of the Court to hear the case: Heirs of Shababo v. Heilen, the Consulate-General of Belgium in Jerusalem and the Consul-General of Belgium in Jerusalem, 8 P.M. 455 (Justice Vitkon; District Court of Jerusalem); (1953) 20 I.L.M. 391. The second decision, also by Justice Vitkon, concerned the merits of the case: this decision of 13 July 1953 was not published in Hebrew but is reproduced in (1953) 20 I.L.M. 397. The third decision is Heirs of Shababo v. Heilen, 9 P.M. 502 (Justice Vitkon, Chief Execution Officer; Jerusalem District Court Execution Office); (1953) 20 I.L.M. 400.
105 The following statement of the Court must, for this reason, be considered obiter dictum: “The rules of international law, accepted in all civilized countries, are also applicable in the State of Israel, if not by virtue of international law itself then at least through their being part of the English common law which is valid in this country, failing any other regulation, by virtue of Article 46 of the Palestine Order-in-Council and Section 11 of the Law and Administration Ordinance, 1948. The rule … that a diplomatic representative and his retinue are exempt from jurisdiction in the country to which they have been sent and accepted as such, derives from the general principles of international law which are part of the English common law …”, Shababo (Jurisdiction), supra n. 104, at 393.
106 See, for example, Sensur v. The Consulate General of Greece, (1972) P.D. 26(ii) 328. This case dealt with the question of immunity of the premises of the Greek Consulate-General from execution proceedings. Justice Sussman, Vice President of the Supreme Court, treated the Greek Consul-General as a duly accredited diplomatic representative, and stated that following common law, Israeli law, excludes a foreign sovereign and its representatives from the jurisdiction of national courts so as to comply with the international law duty of the State to accord immunity. See Moritz, Y., “Fissures in the Principle of Diplomatic Immunity”, 28 HaPraklit 317Google Scholar and Nener, Y., “The Legal Origin of Diplomatic and Sovereign Immunity”, 29 HaPraklit 49Google Scholar. In a recent case, President. Barak states that it is not clear whether the Sensur case dealt with diplomatic or consular immunity and held that the pronouncements of Vice President Sussman were obiter dictum: The Queen in Right of Canada v. Reinhold et al., Supreme Court, Takdin 97(ii) 292, judgment delivered on 3 June 1997, at 12-14 of the court judgment. This case was reviewed in Giladi, R.M., “Sovereign Immunity”, “The Practice and Case Law of the State of Israel in Matters Related to International Law”, (1997) 31 Is. L.R. 803CrossRefGoogle Scholar.
107 Internal procedures and guidelines of the Israeli Police, Ministry of Foreign Affairs and Ministry of Justice regulate the conduct of the State in incidents involving foreign representatives.
108 Section 3 of Civil Wrongs Ordinance [New Version] provides: “The matters in this Ordinance hereinafter enumerated shall be civil wrongs, and, subject to the provisions of this Ordinance, any persons who suffers any injury or damage by reason of any civil wrong committed in Israel shall be entitled as against the person committing or liable for such civil wrong to the remedies hereinafter specified …” This English text here is based on the original Civil Wrong Ordinance, No. 36 of 1994, Supp. No. 1 to the Palestine Gazette No. 1380 of 28 December 1944, 129, at 130.
109 See supra n. 85.
110 Page 10 of the court protocol. Here, Vice President Tal relied, inter alia, on the judgement of President Barak in the Reinhold decision, which held, similarly, that the international customary law relative to sovereign immunity form part of Israeli law. For the “declarative” nature of the provisions of the Vienna Convention, see Denza, E., Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (Oxford, Clarendon Press, 2nd ed., 1998) 1Google Scholar. Eileen Denza notes that 177 States are Parties to the Convention, thus rendering it universal so that “its provisions, even where at the time of their adoption they clearly marked progressive development of custom or resolved points where practice conflicted, are now regarded as settled law”.
111 See Tadeski, G., Barak, A., Cheshin, M. and Englard, I., The Law of Civil Wrongs: The General Part (Jerusalem, Magnes Press, The Hebrew University, 2nd ed., 1976, in Hebrew) 428Google Scholaret seq.
112 Ibid.
113 It seems that the Court treated the Vienna Convention as reflecting customary international law in its entirety, albeit by implication. At p. 13 of the court protocol, Vice President Tal ruled that diplomatic immunity “under the provisions of the Vienna Convention” applies also to civil wrong cases under the Civil Wrongs Ordinance.
114 At p. 17 of the court protocol.
115 It is clear from the travaux prèparatoires of the Vienna Convention that article 31(1)(c) was not intended to cover an isolated commercial transaction; see Yearbook of the It'l L. Commission (1957), I 97; Yearbook of the It'l L. Commission (1958), I 244. See also the commentary of the International Law Commision: The ILC Commentary on what eventually became Article 31(1)(c): Yearbook of the It'l L. Commission (1958) II, 98. To use the phrasing of Sir Gerald Fitzmaurice, the ILC's Rapporteur, “Paragraph 1(c) of the Article applied to cases where a diplomatic agent conducted a regular course of business “on the side”. Such isolated transactions as, for instance, buying or selling a picture, were precisely typical of the transactions not subject to the civil jurisdiction of the receiving State: Yearbook of the It'l L. Commission (1958), I 244. This interpretation of Article 31(1)(c) is well recognized in the literature: see, for example, Denza, supra n. 110, 247 et seq., esp. 250-253; McClanahan, G.V., Diplomatic Immunity: Principles, Practices, Problems (New York, St. Martin's Press, 1989) 130Google Scholaret seq.; Sen, B., A Diplomat's Handbook of International Law and Practice (Dordrecht/Boston/London, Martinus Nijhoff Publishers, 3rd rev. ed., 1988) 142Google Scholaret seq. For the legal position in Britain, see Lewis, C.J., State and Diplomatic Immunity (London/New York/Hamburg/Hong Kong, Lloyd's of London Press, 3rd ed., 1990) 140Google Scholaret seq.
116 At p. 17 of the court protocol.
117 See Denza, supra n. 110, at 343 et seq.
118 On the question of foreign minister certificate, see Rosenne, S., “Minister of Foreign Affairs Certificate” (1955) 11 HaPraklit 33Google Scholar, and the authorities mentioned there, especially Al- Tourani v. The Attorney-General, (1952) 6 P.D. 1145. See also Oppenheim's International Law, at 1046 et seq.
119 The term “permanently resident” is nowhere defined in the Convention. Neither does the travaux préparatoires provide any indication of its meaning and extent. The practice of States since the conclusion of the Vienna Convention seems inconsistent. See Denza, supra n. 110, at 339-349.
120 This List was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division, and Ms. Rina Assaf of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.