¹ Published in (1971) 1 Isr. Y.B. Hum. Rts. 262 Google Scholar.

² Although the term “administer” appears in articles 48 and 49 to the Hague Regulations annexed to the Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, (hereinafter: “1907 Hague Regulations”). Available at http://www.yale.edu/lawweb/avalon/lawofwar/hague1l.htm (last visited September 2005). Shamgar's intentions when using this term seem to be different from those of the regulations.

³ Strauss, Peter L., “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” (1984) 84 Colum. L. Rev. 573 CrossRefGoogle Scholar.

⁴ Koh, Harold H., “Why Do Nations Obey International Law?” (1997) 106 Yale L J. 2599 CrossRefGoogle Scholar; Koh, Harold, “Transnational Legal Process” (1996) 75 Neb. L. Rev. 181 Google Scholar; Koh, Harold, “Bringing International Law Home” (1998) 35 Hous. L. Rev. 623 Google Scholar.

⁵ This corpus consists of several treaties, with some overlap between them. The main treaties are the Hague Treaties, and especially the Fourth Hague treaty and the annexed regulations of 1907, see supra n. 2 and the four Geneva Conventions of 1949, and their additional protocols (I and II) of 1977. [Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287. Protocol I Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391; Protocol II Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, U.N. Doc. A/32/144, 1125 U.N.T.S. 513, 16 I.L.M. 1442 (1977).] All are available at http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm (last visited September 2005).

⁶ Meron, Theodore, “The Humanization of Humanitarian Law” (2000) 94 A.J.I.L 239 Google Scholar.

⁷ See Mathews, Robert J. and McCormack, Timothy L. H., “The Influence of Humanitarian Principles in the Negotiation of Arms Control Treaties” (1999) 834 Int'l Rev. Red Cross 331, available at http://www.icrc.org/web/eng/siteeng0.nsf/iwpList136/40284E959E6351CBC1256B66005D0EE8 CrossRefGoogle Scholar (last visited September 2005). (Claiming that with very few exceptions: “[a]ll laws of war suffer from one common weakness: the rules of conduct established for belligerents in time of peace may not resist the pressure of military expedience generated in the course of hostilities, and the attempts to ‘humanize’ war may sometimes prove futile”). In his classical book On War, Clausewitz rejected the idea that laws or morals could in any way restrain war.

⁸ E.g. Morrow, James D., “The Laws of War, Common Conjectures, and Legal Systems in International Politics” (2002) 31 J. Legal Stud. 41 CrossRefGoogle Scholar. For instance, leaders of democratic states might reap considerable domestic and international political benefits by observing humanitarian laws, see Posner, Eric A., “A Theory of the Laws of War” (2003) 70 U. Chi. L. Rev. 297 CrossRefGoogle Scholar. See also: Trachtman, Joel P. and Dunnof, Jeffrey L., “The Law and Economics of Humanitarian Law Violations in Internal Conflict” (1999) 93 A.J.I.L. 394 Google Scholar.

⁹ Cassese, Antonio, International Criminal Law (New York, Oxford University Press, 2003) 306 Google Scholar. Amnesty report on the domestication of the Rome Statute of the ICC. Amnesty International, International Criminal Court: The Failure of States to Enact Effective Implementing Legislation (Sept. 1, 2004) Available at http://web.amnesty.org/library/Index/ENGIOR400192004?open&of=ENG-385Google Scholar (last visited September 2005) (Claiming that of the more than 90 signatories of the Rome Statute of the ICC only a few have enacted legislation enabling them to adjudicate War Crimes in their domestic courts.)

¹⁰ Mashaw, Jerry L., “Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability” (1994) 57 Law & Contemp. Probs. 185 CrossRefGoogle Scholar.

¹¹ E.g. Boene, Bernard, “Trends in Political Control of Post Cold War Armed Forces” in Cohen, Stuart, ed. Democratic Societies and their Armed Forces (London, Frank Cass, 2000) 73–88 (as well as other articles in this volume)Google Scholar.

¹² And the question whether there are sufficient political controls over actions of administrative agencies is in itself a hotly debated issue. See e.g. Cooter, Robert, The Strategic Constitution (Princeton, Princeton University Press, 2000) 149–169 Google Scholar.

¹³ I do not claim, nor can it be claimed, that war lies completely outside any political or societal control. The only claim I am making is that armies enjoy more independence from political controls, thanks to the special nature of war.

¹⁴ Koh, Harold H., The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven, Yale University Press, 1990) 117–133 Google Scholar.

¹⁵ Domestic political pressure to end wars is usually generated by the public's awareness of its own losses (for example the Unites States in Vietnam or Israel in Lebanon). See Gartner, Scott S. and Segura, Gary M., “War, Casualties and Public Opinion” (1998) 42(3) Journal of Conflict Resolution 278–300 CrossRefGoogle Scholar.

¹⁶ In the U.S., for example, the question of Judicial Review of war has usually been in the context of Presidential v. Congressional powers in execution of foreign affairs. E.g U.S. v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936) (“In this [foreign affairs] external realm with its important, complicated, delicate and manifold problems, the president alone has the power to speak or listen as a representative of the nation”). On the other hand the Youngstown decision limited the power of the president when acting without congressional authorization [Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952) J. Jackson's decision]. Decisions about the war in Vietnam usually followed the Curtiss-Wright approach, refusing to overturn presidential decisions about the war. In many cases, the reason for the court's decisions were the non-justiciability and political question doctrine. E.g. Orlando v. Laird 443 U.S. F. 2d 1039 (2^nd Cir. 1971), cert. denied 404 U.S. 869 (1971). Holtzman v. Schlesinger 484 F. 2d 1307 (2^nd Cir. 1973). For a description and criticism of the American courts' doctrines see Koh, supra n. 14 (especially chapters 6 and 7). A district court judge has recently issued an opinion that overturns the President's decision to try several detainees in Guantanamo Bay in specially constructed military tribunals as inconsistent with the requirements of the 3rd Geneva Convention. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (2004). This, however, is surely the exception that teaches us the rule.

¹⁷ E.g. Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Bobbs-Merrill, 1962) 164–169 Google Scholar; Benvenisti, Eyal, “Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts” (1993) 4 European Journal of International Law 159 CrossRefGoogle Scholar; Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany, SUNY Press, 2002)Google Scholar.

¹⁸ One of the clearest examples was the use made of the media by General Norman Schwarzkopf, commander of the allied forces during the first Gulf War (1991). Schwarzkopf informed reporters only of what he wanted them to know, and created favorable coverage. During the second Gulf War (2003) American reporters were “embedded” in fighting units. But here too the result was a consistently favorable coverage of the campaign, from the point of view of the American forces.

¹⁹ The Lieber code was based on the German notion of Kriegsraison—the need for military necessities to override all other considerations so that wars would be brief. See Hartigan, Richard S., Liebers Code and the Law of War (Chicago, Precedent Press, 1983)Google Scholar; Jochnick, Chris af and Normand, Roger, “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harv. Int'l L. J. 49, at 63 Google Scholar. Indeed, Lieber himself writes that “The more vigorously wars are fought, the better it is for humanity. Sharp Wars are brief” [Lieber Code, § 1, arts. 14-19, 29 (1863), reprinted in Hartigan, ibid. at 48-50]. After viewing the Lieber Code, James Seddon, the Secretary of War of the Confederacy reportedly pronounced the code to be “a barbarous system of warfare under the pretext of a military necessity.” See Hartigan, ibid., at 123.

²⁰ See text accompanying infra n. 85.

²¹ Jochnick and Normand, supra n. 19, at 53.

²² Van Creveld, Martin, “The Clausewitzian Universe and the Laws of War” (1991) 26 (3–4) Journal of Contemporary History 403–429 CrossRefGoogle Scholar.

²³ Normand, Roger and Jochnick, Chris Af, “The Legitimation Of Violence: A Critical Analysis Of The Gulf War” (1994) 35 Harv. Int'l L. J. 387 Google Scholar.

²⁴ Legro, Jeffrey, “Which Norms Matter? Revisiting the ‘Failure’ of Internationalism” (1997) 51(1) International Organization 31–63 CrossRefGoogle Scholar (claiming that the reason for the compliance or non-compliance of World War II armies with international laws of war was their own organizational culture).

²⁵ Van Creveld, supra n. 22, at 424.

²⁶ One example is provided by the Russian army's fear of the new British dum-dum bullet in the 19^th century, which led it to push for the St. Petersburg declaration prohibiting their use. See Jochnick and Normand supra n. 19, at 66.

²⁷ Sassoli, Marco, Bouvier, Antoine, How Does Law Protect in War (Geneva, International Committee of the Red Cross, 1999) 97–98 Google Scholar.

²⁸ Van Creveld, supra n. 22.

²⁹ Morrow, supra n. 8. According to this logic, the enemy is always capable of applying more force than he is currently employing the case, and will do so if my forces contravene the laws of war. Hence, war can be described as a Prisoner's Dilemma (PD): both sides prefer to limit the horrors of war, but both fail to do so because they fear that the other side will pursue the conflict without restraint. Hence, IHL can be seen as an attempt to solve this PD, by creating a regime with clear and enforceable rules, coupled with an attempt to create a reputation cost to the side which defects

³⁰ Formally, of course, IHL is not based on reciprocity. States are obliged to IHL regardless of whether their opponents actually respect these rules or not. Yet, formal obligations, I submit, have little power unless supported by interests.

³¹ Van Creveld, Martin, The Transformation of War (New York, Free Press, 1991)Google Scholar.

³² Trachtman and Dunnof, supra n. 8.

³³ Dinstein, Yoram, “Unlawful Combatancy” (2002) 32 Isr. Y.B. Hum. Rts. 247, at 250–251 Google Scholar; Gross, Emanuel, “The Laws of War Waged Between Democratic States and Terrorist Organizations: Real or Elusive?” (2003) 15 Fla. J. Int'l L. 416 Google Scholar.

³⁴ The Geneva Conventions of 1949 apply to “ …all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them” Geneva Conventions of 1949, supra n. 5, at common article 2.

As to the application of the full scope of the fourth GC in the territories see infra n. 49. In former Yugoslavia the International Criminal Tribunal decided that the conflicts were indeed international since states were involved, and applied the full scope of the Geneva Conventions. See Case IT-94-I-A Prosecutor v. Tadic, decision of the Appeals Chamber July 15^th 1999, pp. 30-75, available at: http://www.un.org/icty/tadic/appeal/judgement/tad-aj990715e.pdf (last visited September 2005).

³⁵ Internal conflicts are governed by Common Article 3 to the Geneva Conventions, which declares a minimum of application of international humanitarian law “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. This minimum includes protection of citizens, and people not taking part in combat. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) applies a wider range of the laws of war to internal conflicts. Many of the norms in this protocol, however, are not considered Customary International Law. For a more concrete categorization of which norms are considered Customary International Humanitarian Law see Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules (Cambridge, International Committee of the Red Cross, 2005)CrossRefGoogle Scholar.

³⁶ These range from the decisions of the ICJ, to the decisions of the 1CTY and 1CTR, and decisions of the supreme court of the US, and that of Israel.

³⁷ As will be explained further bellow, although the conflict between Israel and the Palestinians is substantively a clash between a state and a non-state, it is usually considered to be controlled by the full scope of the international law of occupation. Yoram Dinstein, for example, suggests the entire conflict is controlled by the full scope of IHL, because it originated as an international conflict which it has never ceased to be such since.

³⁸ Terrorism and conflict have been part of the occupation from its early days. The fighting was more intense during several periods: 1971, in 1987-1991 (first intifada), September 1996, and in 2000-2004 (second intifada).

³⁹ Simpler not only because it would divert some of the international pressures over Israel, but also because the Israeli military had some experience of military occupation. Israel had occupied the Gaza Strip during the 1956 Suez War, and applied the laws of occupation there, without any of the deliberation that later accompanied this issue. Several of the veterans of this short military occupation were consulted during the course of the development of military policy towards Judea, Samaria and Gaza in 1967.

⁴⁰ Hague Regulations supra n. 2.

⁴¹ Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War, supra n. 5.

⁴² As quoted in Kretzmer, supra n. 17, at 32.

⁴³ Inbar, Zvi, “The Military Advocate General and the Occupied Territories” (2002) 16 Law and Army 149, at 156 [in Hebrew]Google Scholar; See also a similar description in Shamgar's interviews with Professor Mautner, Menachem in Book of Shamgar. Volume One-Life Story (Tel Aviv, The Israel Bar Publishing House, 2003) 164 [in Hebrew]Google Scholar.

⁴⁴ The Fourth Geneva Convention was adopted into military commands in 1982. General Command no. 33.0133: Discipline – Behavior According to International Treaties Adopted by the State of Israel – The Geneva Conventions see: Sommer, Hillel, “Epur si Applica—The Geneva Convention (IV) and Israeli Law” (1968) 11(2) Tel Aviv U. L. Rev. 263 [in Hebrew]Google Scholar.

⁴⁵ Kretzmer, supra n. 17, at 35-42.

⁴⁶ Israel did not formally annex East Jerusalem. However, it passed several laws with the combined effect of annexing Jerusalem. In 1967 The Knesset adopted the Law and Administration Ordinance (Amendment No. 11), 1967, 21 L.S.I. 75. This law authorized the government to apply Israel's laws in any territory under the control of Israel. Following this statute, the Cabinet issued the proper decree. 2064 Code of Regulations (1967) 2690. In 1980 the Knesset adopted Basic Law: Jerusalem, Capital of Israel, 34 L.S.I. 209, which declared “United Jerusalem” to be the capital of Israel. A similar (though not identical) route was taken later with regards to the Golan Heights: Golan Heights Law, 1981, 36 L.S.I. 7.

⁴⁷ Kimmerling, Baruch, “The Social Construction of Israel's ‘National Security” in Cohen, Stuart, ed. Democratic Societies and their Armed Forces (London, Frank Cass, 2000) 215, at 233 Google Scholar.

⁴⁸ Regarding both East Jerusalem and the Golan Heights Israel claimed that it did not formally annex the territories, rather it only applied its internal laws there.

⁴⁹ Israel's claim was that the territories were never recognized under international law as falling under the sovereignty of the Hashemite Kingdom of Transjordan, in itself a plausible claim, see Rostow, Eugene, “Palestinian Self-Determination, Possible Futures for the Unallocated Territories of the Palestinian Mandate” (1979) 5 Yale Studies in World Pub. Order 147 Google Scholar and that therefore the 4^th Geneva Convention did not apply to them. This last claim involved a leap in logic, since Article 2 to the 4^th GC states that the Convention applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the high contracting parties, even if the state of war is not recognized by one of them.” Since Israel and Jordan were both parties to the 4th GC, it seems clear that it applies without regards to the question of who the legal sovereign might be. Israel's claim, first raised by Professor Yehuda Blum, is that the second paragraph of Article 2 limits the application of the treaty to areas under the legal sovereignty of the parties. See Blum, Yehuda Zvi, “The Missing Reversioner, Reflections on the Status of Judea and Samaria” (1968) 3 Is.L.R. 279 CrossRefGoogle Scholar; Blum, Yehuda Zvi, Secure Boundaries and the Middle East Peace (Jerusalem, Harry Sacher Institute for Legislative Research and Comparative Law, 1971) 85–88 Google Scholar. The second paragraph reads: “The Convention shall also apply to all cases of partial and total occupation of the territory of a high contracting party, even if the said occupation meets with no armed resistance.” While it seems clear that the simple meaning of the second paragraph is merely to add to the application of the treaty cases where there is no armed resistance, Israel chose to interpret it as limiting the entire scope of the treaty to occupations where the occupied territory is under the legal sovereignty of one of the parties. Many have criticized this interpretation e.g. Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967” (1990) 84 A.J.I.L. 44, 63 Google Scholar. This interpretation was expressly rejected by, among others, the International Court of Justice in its recent Advisory Opinion: Legal Consequences of the Construction Of A Wall In the Occupied Palestinian Territory Paragraphs 95-101. The opinion is available in (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar.

⁵⁰ For a survey of Israel's position on this matter, and criticism of it, see Ben-Naftali, Orna and Shany, Yuval, “Living in Denial: The Application of Human Rights in the Occupied Territories” (2004) 37 Is.L.R. 17 CrossRefGoogle Scholar.

⁵¹ Since the Military government over Israeli Arabs was a matter of executive decision, its abolition was accomplished by means of an executive decision. Only notice of this decision was given to the Knesset (1966) 47 Protocols of the Knesset 228. See Harris, Ron, “Arab Politics in a Jewish Democracy: El Ard Movement and the Israeli Supreme Court” (2001) 10 Plilim 107, at 118 [in Hebrew]Google Scholar.

⁵² Kimmerling, Baruch, “Legislation and Jurisprudence in a Settler-Immigrant Society: The Israeli Case” (1998) 16 Bar Ilan Law Studies 17 [in Hebrew]Google Scholar.

⁵³ Contemporary writers acknowledge that military policy towards the territories originated in the experience of military rule over Arab-Israelis. See e.g. Gazit, Shlomo, The Stick and the Carrot: the Israeli Administration of Judea and Samaria (Tel Aviv, Zmora-Bitan, 1985) 20 [in Hebrew]Google Scholar; Teveth, Shabtai, The Cursed Blessing (Tel Aviv, Schocken, 1969) 66 [in Hebrew]Google Scholar.

⁵⁴ Pre-1966 military control over Arabs in Israel proper included some political rights for Arabs. A set of decisions of the Israeli Supreme Court in the 1960's regarding the Arab Israeli movement El-Ard, might have constituted precedents. El-Ard (In Arabic – the land) supported some measure of collective Arab identity which seemed, at the time, to contradict the accepted definition of the Jewish State. See Ron Harris, supra n. 51, El-Ard proved that sophisticated legal appeals to the Supreme Court could force the government to grant Arabs several important political rights, based on the Israeli jurisprudence of civil rights. In a period of 5 years El–Ard matters were argued before the Supreme Court five times. H.C.J. 241/60 Kardosh v. Register of Companies 15(2) P.D. 1151 (The right of establishment as a corporation); H.C.J. 253/64 Jaris v. Administrator of Haifa County 18(4) P.D. 673 (right of establishment as a non-profit corporation); C.A. 228/60 Kahugi v. Attorney General 14(3) P.D. 1929 (Criminal case about printing a newspaper without a license); H.C.J. 39/64 El Ard Ltd. v. Administrator of the Northern County 18(2) P.D. 340 (right of the government to refuse a license to print a newspaper); I.A. 1/65 Yardor v. Chairman of the Central Election Committee 19(3) P.D. 365. (Right of party to participate in election). Since the number of Palestinians in the territories precluded the grant to them of political rights a policy had to be devised to bypass this perceived danger. Caution was also mandated by the fact that the court had demonstrated some (limited) willingness to review military actions in Israel pre-1966, and to apply human rights in areas under military government too.

⁵⁵ Pedatzur, Reuven, The Triumph of Embarrassment: Israel and the Territories After the Six-Day War (Tel Aviv, Zmora Bitan, 1996) [in Hebrew]Google Scholar; Segev, Tom, 1967—And the Country Changed Its Face (Tel Aviv, Keter, 2005) 524–547 [in Hebrew]Google Scholar.

⁵⁶ In 1967 Herzog did not prove himself to be an especially successful choice. Moshe Dayan soon fired him, and appointed Shlomo Gazit, a military officer with experience in military government instead. Segev, ibid., at 480, 538.

⁵⁷ Gazit, supra n. 53, at 20–43.

⁵⁸ See text accompanying supra n. 43, and sources cited there.

⁵⁹ Teveth, supra n. 53, at 55-65; Segev, supra n. 55, at 480-482.

⁶⁰ Supra text accompanying n. 42.

⁶¹ Kretzmer, supra n. 17, at 32-33.

⁶² Hebron's first governor Tzvi Offer, as quoted in Teveth, supra n. 57.

⁶³ Teveth, supra n. 53. Segev, supra n. 55.

⁶⁴ The main features of this regime were:

- The permit system, which required every Arab to obtain a permit in order to move outside his village—including for purposes of work. The permit system was applied liberally, thus not conflicting with the need for integration. The main limits on the permit system were those imposed by security need, i.e. those suspected of not being loyal to Israel were not given permits. In addition, permits were used to limit Arab work according to the needs of the Israeli market (i.e. more permits in the summer when more agricultural workers were needed) and used to limit the entrance of Arabs to expropriated land, thus supporting Israel's settlement policy. (See especially Korn, Alina, “Criminalization of a Political Conflict: Crime Within the Israeli Arab Population in the Fifties” (1999) 8 Plilim 157 [in Hebrew])Google Scholar.

- Land Expropriation. It is estimated that by the end of the military government in 1966 Arab Israelis held only 30%-40% of the private land that they had before 1948.

- Military control of Arab access to all government services.

- The prohibition on the creation of Arab national political movements.

See generally: Kimmerling, Baruch, Immigrants, Settlers, Natives: The Israeli State and Society Between Cultural Pluralism and Cultural War (Tel Aviv, Am Oved, 2004) 377 [in Hebrew]Google Scholar. As will be seen, these were precisely the characteristics of Israeli military government in Judea, Samaria and the Gaza Strip after 1967.

⁶⁵ Zertal, Idith and Eldar, Akiva, Lords of the Land: The Settlers and the State of Israel 1967-2004 (Or Yehuda, Kinneret, 2004) 449 [in Hebrew]Google Scholar.

⁶⁶ At least three of the governors of towns in the territories were former officials of the domestic military government Ibid.

⁶⁷ Because of the expropriation of land, people who did not have permits were almost unable to work in traditional agriculture. This caused the Arab villages to become units completely dependent on the goodwill and the economy of Israel.

⁶⁸ Kedar, Sandy, “Majority Time Minority Time: Land, Nation and the Law of Adverse Possession in Israel” (1998) 21 Tel Aviv U. L. Rev. 665 [in Hebrew]Google Scholar.

⁶⁹ Kimmerling, supra n. 64.

⁷⁰ Korn, supra n. 64.

⁷¹ I consider Moshe Dayan to be part of the administration of the territories. According to all available evidence he himself acted not as a civilian supervising the army, but actually as the commander of the military government of the territories. Dayan gave very specific detailed orders, formulated policies, and made specific decisions. More over, Dayan, like all administrators do, resisted any attempt by on the part of the government to interfere with the way he ran the territories.

⁷² Gazit, supra n. 53, at 52-86. This arrangement is sometimes described in “colonial” terms, since it in fact transformed Palestinians into both a cheap workforce for the growing Israeli economy, and a market for certain products.

⁷³ E.g. Sofer, Arnon, “Territorialism, Nation, State” (1998) 21 Tel Aviv U. L. Rev. 147 [in Hebrew]Google Scholar.

⁷⁴ Gazit's document, infra n. 77.

⁷⁵ Wald, Emanuel, The Wald Report: The Decline of Israeli National Security Since 1967 (Boulder, Westview Press, 1992) 67 Google Scholar. Arab-Israeli population numbered approximately 400,000 before the war. There were more than a Million Arabs at the territories (West Bank – 600,000; East Jerusalem – 70,000; Gaza Strip – 350,000). Morris, Benny, Righteous Victims: A History of the Zionist-Arab Conflict (New York, Knopf, 1999) 336 Google Scholar.

⁷⁶ Benny Morris estimated that 200,000-250,000 of the Palestinians from the West Bank, about a quarter of their population, moved to Jordan in the weeks following the war. In most cases, Israel did not force the Palestinians to move, and approximately 17,000 were allowed back. See Morris ibid., at 328-329. However, this meant that more than 1 million Arabs were still living in the territories (including east Jerusalem) after 1967 (Ibid., at 336). In 1948 Israel faced the same kind problem, but solved it by causing some Arabs to leave their houses, and not allowing those that left temporarily to come back. The main reason for this policy was to make the significant Arab minority in Israel smaller and weaker. Of the more than 1 million Arabs who lived inside the “green line” prior to 1948, only about 160,000 still lived there in 1950. See Morris, Benny, The Birth of the Palestinian Refugee Problem, 1947–1949 (Cambridge, Cambridge University Press, 1987)Google Scholar.

⁷⁷ The document is reproduced verbatim in Gazit, supra n. 53, at 356.

⁷⁸ Thus conforming to Article 27 of the 4^th Geneva Convention—“Women shall be especially protected against any assaults on their honor, in particular rape, enforced prostitution, or any form of indecent assault.”

⁷⁹ Hague Regulations article 43; Benvenisti, Eyal, The International Law of Occupation (Princeton, Princeton University Press, 1993) 5–6 Google Scholar.

⁸⁰ This, at least, was Israel's position until the Camp David Accords in 1978.

⁸¹ As from 1948, continuous attempts were made to abolish the Defense Regulations, which granted enormous powers to the executive branch and the army in all cases where they deemed the situation to be of security concern. These regulations, enacted by an imperial sovereign under attack in the last days of its control, seemed to many Israelis to be in complete contradiction to the nature of Israel as a democratic state. See Kimmerling supra n. 52. And yet—the Supreme Court was cautious about undermining military control over Arab-Israelis in the 1950s and 1960s, and refused to review any action under the Defense Regulations. The ingenuity of El-Ard lay in that it managed to bypass the Defense Regulation by challenging political rights which were nominally not controlled by them. Harris, supra n. 51.

⁸² See the Jordanian decision quoted in H.C.J. 97/79 Awwad v. Military Commander of Judea and Samaria 33(3) P.D. 309; However, see the criticism of this position in H.C.J. 698/80 Kawasme v. Minister of Defense 35(1) P.D. 617. See also Shehadeh, Raja, Occupier's Law: Israel and the West Bank (Washington, Institute for Palestinian Studies, 1988)Google Scholar.

⁸³ Hofnung, Menachem, Israel—Security Needs vs. the Rule of Law (Jerusalem, Nevo, 1991) 87 [in Hebrew]Google Scholar.

⁸⁴ See Hague Regulations, supra n. 79, article 43 states that “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The question is what does the term “unless absolutely prevented” mean. Some scholars suggested that the word “absolutely” is not so strict as it sounds, and actually allows all changes based on legitimate needs of the occupying power, including security needs. See Dinstein, Yoram, Laws of War (Tel Aviv, Schocken, 1983) 218 Google Scholar. See also Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals, Vol II: The Law of Armed Conflict (London, Stevens & Sons Limited, 1968) 193 Google Scholar.

⁸⁵ For discussion of the Elon Moreh decision, as a possible exception, see infra n. 147.

⁸⁶ Benvenisti, supra n. 79.

⁸⁷ Probably, the Hague Regulations also prohibit house demolitions, see e.g. Simon, Dan “The Demolition of Homes in the Israeli Occupied Territories” (1994) 19 Yale J. Int'l L. 1 Google Scholar. However the wording of the relevant clauses in the Hague Regulations left some room for debate. For example: Article 50 of the HR and article 33 of the 4^th GC both seem to prohibit collective punishments.

⁸⁸ I will discuss these attempts in more detail later.

⁸⁹ Shamgar, Meir, “Legal Concepts and Problems of the Israeli Military Government—The Initial Stage” in Shamgar, Meir, ed. Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects (Jerusalem, Harry Sacher Institute for Legislative Research and Comparative Law, 1982) 13, at 31 Google Scholar; Shamgar, supra n. 1. For a detailed analysis of this claim see supra n. 49.

⁹⁰ Ibid.

⁹¹ Ibid.

⁹² See, for example, David Kretzmer's accurate criticism of many of these interpretations in Kretzmer, supra n. 17.

⁹³ E.g. Teveth claims that Shamgar specifically chose to use terms that would give the IDF the maximum amount of flexibility under international law. For example: Shamgar suggested the term “commander of Israeli forces in the West Bank” would be used instead of the term “governor,” so that the IDF could claim that several actions were being taken in response to military necessity. Teveth, supra n. 53 at 27.

⁹⁴ See supra n. 82.

⁹⁵ Hague Regulations, supra n. 43, at article 43.

⁹⁶ There were several attempts to change or limit the application of the Defense Regulation inside Israel—some of which almost succeeded. In 1979, the use of some of the Defense Regulations was abolished inside Israel. See Hofnung, supra n. 83, at 76-100.

⁹⁷ Bavly, Dan, Dreams and Missed Opportunities 1967–1973 (Jerusalem, Karmel, 2002) 45–48 [in Hebrew]Google Scholar.

⁹⁸ Dayan, Moshe, A New Map—Different Relations (Tel Aviv, Ma'ariv, 1969) 138 [in Hebrew]Google Scholar. This was one of the lessons that Dayan had brought back from his tour of Vietnam in 1966, where he thought that the American Army was making a major mistake by intervening too much in Vietnamese life. See Bavly, supra n. 97, at 48. In many senses, the “benevolent” approach towards civilians was only an attempt to build a barrier between them and terrorists or insurgents, In the Gaza Strip, for example, civil support (build infrastructures, schools, etc.) was given only to those who helped fight security threats. Maimon, David, The Vincible Terror, (Tel Aviv, Steimatzky, 1993) [in Hebrew]Google Scholar.

⁹⁹ It seems that in 1967 the accepted legal position was that the Hague Regulations reflected customary international law, and that the 4^th GC was merely conventional ( Dinstein, Yoram, “The Judgment in the Rafah Approach case” (1974) 3 Tel Aviv U. L. Rev. 934 [in Hebrew])Google Scholar. The current position is that both documents represent customary international law see: Meron, Theodore, “The Geneva Conventions as Customary International Law” (1987) 86 A.J.I.L. 348; Advisory Opinion the Legality of the threat or Use of Nuclear Weapons, ICJ 1996 available at http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm (last visited September 2005)Google Scholar.

¹⁰⁰ Benvenisti supra n. 79, at 6.

¹⁰¹ Schwarzenberger, supra n. 84, at 166-175.

¹⁰² Both assumptions appear in the early “constitution” of occupation, article 43 of the Hague Regulations.

¹⁰³ Hague Regulations, supra n. 79, article 55.

¹⁰⁴ Under immense American pressure, Israel's cabinet adopted a secret decision, declaring that the Sinai desert and the Golan Heights would be returned to Egypt and Syria respectively as part as a comprehensive peace. Even in this dovish document, however, the Israeli government did not consider the complete evacuation of Judea and Samaria as an option. See Pedatzur, supra n. 55.

¹⁰⁵ Gazit, Shlomo, Trapped Fools: Thirty Years of Israeli Policy in the Territories, (Portland, Cass, 2003) 68 Google Scholar.

¹⁰⁶ E.g. the court allowed the military commander to levy a new tax, although it was clearly intended not to serve the local population, but rather to equalize fiscal policy in the territories and in Israel. H.C.J 69/81 Abu Aita v. Commander ofJudea and Samaria Region 37(2) P.D. 197. For a summary, see (1983) 13 Isr. Y.B. Hum. Rts. 348 Google Scholar. Similarly in the Jamaat Aschan decision the court approved expropriation of private Palestinians lands in order to build a road that was mainly intended to serve the traffic between northern Jerusalem and Tel Aviv. (H.C.J 393/82 Jama'at Aschan v. Commander of IDF Forces in Judea and Samaria Region 37(4) P.D. 785, summarized in (1984) 14 Isr. Y.B. Hum. Rts. 301, at 307–308)Google Scholar. In both cases the court claimed that the reality of the prolonged occupation mandates some changes and flexible interpretations of the international law of occupation, which supposedly demands a freeze of the situation other than for military reasons. For evaluation and criticism of these opinions see Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967” (1990) 84 A.J.I.L. 44 Google Scholar.

¹⁰⁷ In fact, all were based on a mercantilist policy of integrating the territories into the Israeli economy, under Israeli control. Benvenisti, supra n. 79.

¹⁰⁸ Demolition of Houses as a punitive measure seems to be outlawed by article 33 to the 4^th GC (outlawing collective punishment, and possibly even by the Hague Regulation). Simon, Dan, “The Demolition of Homes in the Israeli occupied Territories” (1994) 19 Yale J. Int'l L. 1 Google Scholar. Simon claims that the Hague regulation too prohibit demolition of homes. However, as he himself admits, the claim based on the Hague Regulations, and hence customary international law, is much weaker.

¹⁰⁹ Article 49 of the 4^th GC expressly prohibits all deportation, regardless of their motive. Shamgar, as MAG, and later as a supreme court judge adopted a very problematic interpretation of this article limiting it to deportation similar to those of the Nazis. See: H.C.J. 785/87 Afu v. IDF Commander in the West Bank 42(2) P.D. 4; English translation 29 (1990) I.L.M. 139 Google Scholar.

¹¹⁰ Article 76 of the 4^th Geneva Convention: “Protected persons accused of offenses shall be detained in the occupied country, and if convicted they shall be serve their sentences therein.”

¹¹¹ Maimon, supra n. 98, at 110.

¹¹² E.g. Yitzchak Rabin during his second tenure as Prime Minister and Minister of Defense, 1992-1995.

¹¹³ I.e. not the Minister of Defense, see infra.

¹¹⁴ For a description of the attempts of several politicians to explore a “Palestinian” and “Jordanian” option for the future of the territories, even within days after they were conquered, see: Segev, supra n. 55.

¹¹⁵ For a thorough description of the history of settlements see: Zertal and Eldar, supra n. 65.

¹¹⁶ The protocols of the Knesset are available on-line only from the beginning of the 11^th Knnesset (September 1984). I surveyed the discussions of the Knesset from that date and until the outbreak of the first intifada in December 1987 I assumed that this relatively calm period would be indicative, however imprecisely, of trends in the Knesset even of earlier times. A search in this database reveals the following details: There were at least 35 discussions devoted primarily to the territories in this period (I did not include the hundreds of times the Territories were merely mentioned in the Knesset's discussion). This indeed is a large number, and turns the territories into one of the single most discussed items on the Knesset's agenda. See also Hofnung, supra n. 83, at 293. However, 22 of these were discussions regarding the general political future of the territories, and not their administration. Of the other 13, five were questions directed at the Minister of Defense, Yitzhak Rabin, and were answered very briefly, seven others were attempts by Members of Knesset to start a discussion of certain security measures, and were rejected by the majority after a short introduction. Only in one case was an issue referred to the Foreign Affairs and Security Committee, for further discussion.

¹¹⁷ Because of the relevance of MK Ramon's statement to understand the state of mind of members of the Knesset, even of the mainstream labor party, I will bring here parts of his speech verbatim.

“I would like to discuss what is called the (military) government decrees. Since 1967 the military governor has enacted approximately 1,130 such decrees. The authority to enact such decrees is according to Article 43 of the Hague Regulation. It must be said that according to this authority, the military commander is the executive branch, the legislative branch, and the judicial branch, all at the same time. What might be tolerable in a short occupation period, becomes irrational, from the perspective of the rule of law and justice in an occupation lasting more than 18 years. The decrees of the military commander themselves do not require any public approval in the state of Israel. There exists no institution whose function and authority it is to supervise these decrees, their substantive content, their intentions and their results. There is also no elected body, except the Minister of Defense, which the military commander has to report to. Even the High Court of Justice has a very limited jurisdiction over these decrees. This situation allows the military commander to act not only as the keeper of public order and security, but also as a legislator, as a political institution. I will bring two examples. Decree no. 1060 of the military governor of June 1983 in effect created a technique bypassing civil courts, in order to allow Israel to implement its settlement policy. I am not suggesting that the government of Israel may not implement a policy it supports; however, it is impossible that this complete change in policy would come about through a decree of a military government, of which there is supervision, and that the Knesset knows nothing about it” 71^st Meeting of the 11^th Knesset, March 18^th, 1985 (My translation and emphasis, A.C.) Available at: http://www.knesset.gov.i1/Tql//mark01/h0000565.htm#TQL (last visited September, 2005).

¹¹⁸ Rubinstein, Amnon, “The Changing Status of the Territories—From Trust to Legal Hybrid” (1986) 11 Tel Aviv U. L. Rev. 439 [in Hebrew]Google Scholar.

¹¹⁹ Formally, of course, the Knesset cannot be prohibited from legislating. The Knesset, however, made only very limited use of legislation regarding the territories, for fear it would be considered as annexation. The Knesset was asked to approve an extension of the emergency regulations extending the authority of Israeli courts to offenses committed by Israelis in the territories E.g. see MK Shevach Weiss statement in the Israeli Parliament. “If I were to offer that the rules would be approved here as primary legislation, it would have been as if I would have offered to annex the territories through the legal route… something which I do not recommend at all.” Protocol of the 148^th meeting of the 11^th Knesset, December 10^th, 1985. Available at http://www.knesset.gov.il/Tql//mark01/h0000455.html#TQL (last visited September 2005).

The exceptions to this rule were the laws of Jerusalem and Hagolan, supra n. 46, and the emergency regulations mentioned above. See Hofnung, supra n. 83, at 293. It is not clear whether, from the point of view of International law, the Knesset has the power to legislate in matters regarding the territories. On the one hand, this might seem annexation of the territories. On the other hand, there is no real reason to say that the military commander has the power to legislate, and the Parliament which has the power over him, cannot. See C.A. 1/48 Sylvester v. Attorney General 1 P.D. 5, 30.

¹²⁰ Rubinstein, supra n. 118. In addition, to the laws of Jerusalem and the Golan Heights mentioned above (supra n. 119) there were several rules that apply Israeli law to Israeli settlers in the territories, creating in fact a different regime for those settlers. See Hofnong supra n. 83, at 293-295.

¹²¹ Uri Avneri, one of the most left-wing members of Knesset, proposed in 1967 enacting a law that would require parliamentary approval for any adoption of a new military policy. See Gazit, supra n. 53, at 146. From an international law point of view this was quite impossible—the domestic parliament has to respect the previous sovereign. From a domestic point of view, however, Avneri's move was right on target—the whole point of the military regime was to evade parliamentary control. Of course, nothing came of Avneri's suggestion.

¹²² There are numerous reports of Dayan meeting with elders of towns and villages in the territories and bypassing the military commander in dealing directly with these Arab figures. Teveth, supra n. 53, at 80.

¹²³ Gazit, supra n. 53, at 118.

¹²⁴ Hofnung supra n. 83, at 297-8.

¹²⁵ This theory is usually connected with the Chicago School of Public Choice. See e.g. Moe, Terry M., “The Positive Theory of Public Bureaucracy”, in Mueller, Dennis C., ed. Perspectives on Public Choice (Cambridge, Cambridge University Press 1997) 455, at 462 Google Scholar.

¹²⁶ Shamgar claims that he was the architect of these two legal decisions. Without the agreement of the IDF, the Court would have found it difficult to find a source for its jurisdiction over actions that were taken outside Israel. See his interview in Mautner, supra n. 43, at 176. However, one cannot ignore the feeling that in exchange for allowing the army a free hand, Shamgar intentionally built into the legal regime these limitations that he knew would one day cause the army problems.

¹²⁷ See the 1956 ruling, C.A. 25/55 Ha'Apotropos Le'Nichsey Nifkadim v. Samra 10 P.D. 1825, at 1829. Benvenisti claims that this approach was adopted precisely in order to avoid confrontations with the government on international law issues. Benvenisti, supra n. 17.

¹²⁸ E.g. H.C.J. 698/80 Kawasme v. Minister of Defense 35(1) P.D. 617, 636.

¹²⁹ H.C.J. 337/71 Christian Society: for the Holy Places v. Minister of Defense 26(1) P.D. 574; H.C.J. 606, 610/78 Ayyub v. Minister of Defense 33(2) P.D. 113. For a critical evaluation of this policy see Kretzmer, David, “The Application and Interpretation of Geneva Convention IV: Domestic Enforcement and Interpretation” (1995) 26(1) Mishpatim, 49 [in Hebrew]Google Scholar.

¹³⁰ Pictet's commentary ( Pictet, Jean, ed. Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958 Google Scholar)) is considered to be authoritative by the ICRC, but the court does not consider itself as being bound to that interpretation. From the completion of the conventions in 1949, and until recently, in no case did the occupying power admit that it was indeed in occupation. Hence, the only judicial interpretation of the 4^th Geneva Convention was that of the Israeli Supreme Court. The situation has now changed with the creation of the ICTY, and the admission by the US that it was actually an occupying power in Iraq, at least until June 2004.

¹³¹ Although Israel did not recognize the de jure application of the 4^th Geneva Convention, Israel declared that it would respect the humanitarian parts of that convention. The State's lawyers have also sometimes agreed to discuss the proper interpretation of the 4^th Geneva Convention in court. In cases where government lawyers objected to the relevancy of the 4^th Geneva Convention the court sometimes ignored their objections and interpreted the convention. See Kretzmer, supra n. 17, at ch. 2.

¹³² Caused, no doubt, by the fact that representatives of states were willing to agree only to those limitations that would not undermine the interests of their own state. See Jochnick and Normand supra n. 19.

¹³³ Article 53 of the Hague Regulations prohibits any requisition in kind or services unless required by the needs of the occupying army. Article 43 requires the occupying army to respect the laws of the previous sovereign unless “absolutely prevented.” Article 27 to the 4^th Geneva Convention reads: “However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Article 49 of the 4^th Geneva Convention allows “total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.” Article 53 of the 4^th Geneva Convention prohibits any destruction of property “except where such destruction is rendered absolutely necessary by military operations.” Article 62 of the 4^th Geneva Convention gives the protected persons a right to receive international aid “subject to imperative reasons of security.” Article 78 of the 4^th Geneva Convention allows internment or assigning residence when required under military needs. The first protocol (in this case probably reflecting customary international law) enjoins occupying armies to “refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (Article 57 2.a.iii).

¹³⁴ Bilsky, Leora, “Territory, Community and Political Trials: A New Challenge for International Law” (2003) 27 Tel Aviv U. L. Rev. 655 [in Hebrew]Google Scholar (claiming that a court needs to be part of the society it adjudicates).

¹³⁵ See e.g. H.C.J. 302/72 Khelou v. Government of Israel 27(2) P.D. 169, 177 (For an English summary see (1975) 5 Isr. Y.B. Hum. Rts. 384)Google Scholar.

¹³⁶ Kretzmer, supra n. 17, at 35-40. Only in 1982 did Justice Barak unequivocally ruled that the regime of belligerent occupation was indeed the controlling regime over the territories: Ja'amait Ascan v. IDF Commander in Judea and Samaria, supra n. 106.

¹³⁷ Kretzmer, supra n. 17, at 188.

¹³⁸ Of course, without substantive norms the actual effect of these due process rights was a little unclear: what is a Palestinian supposed to claim in the hearing he has been granted? Nevertheless, these rights became the most common protection that the Israeli Supreme Court afforded the Palestinian population.

¹³⁹ H.C.J. 358/88 Association for Civil Rights in Israel v. Officer Commanding Central Command 43(2) P.D. 529.

¹⁴⁰ H.C.J. 253/88 Sajedia v. IDF Commander in Judea and Samaria 42 (3) P.D. 801.

¹⁴¹ H.C.J. 5973/92 The Association for Civil Rights in Israel v. Minister of Defense 47(1) P.D. 267 (For an English summary see (1993) 23 Isr. Y.B. Hum. Rts. 353)Google Scholar.

¹⁴² A survey of the policies and decisions of the court can be found in Kretzmer, supra n. 17.

¹⁴³ In several cases, it seems that all justices with the exception of Justice M. Cheshin agreed that demolition of houses as a punishment to the family of the terrorist was not a form of collective punishment and thus did not contradict international law. See H.C.J. 6062/94 Nazaal v. IDF Commander in Judea and Samaria 48(5) P.D. 338, 346. H.C.J. 2006/97 Ghanimat v. Officer Commanding Central Command, 51(2) P.D. 651 (Justice Cheshin dissenting). But see Dinstein, Yoram, “The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses” (2000) 29 Isr. Y.B. Hum. Rts. 285 Google Scholar (explaining why demolition of houses as a punishment is prohibited).

¹⁴⁴ Afu v. IDF Commander in the West Bank, supra n. 109; Association for Civil Rights v. Minister of Defense, supra n. 141.

¹⁴⁵ Sajedia v. IDF Commander in Judea and Samaria, supra n. 140.

¹⁴⁶ After the Elon Moreh case the court refused to offer an opinion on the legality of settlements, which were henceforth built only on public land. E.g. H.C.J. 4481/91 Bargil v. Government of Israel 47(4) P.D. 210.

¹⁴⁷ H.C.J. 390/79 Dawikat v. The State of Israel 34(1) P.D. 1. In this case, a Palestinian appealed against expropriation of land in order to build the settlement of Elon Moreh. The government claimed that the expropriation was for security reasons, and thus allowed under Article 53 of the Hague Regulations. In support of its position the government submitted an affidavit signed by the Chief of Staff. On the basis of the previous Ayyub decision (H.C.J. 606/78 Ayyub v. Minister, supra n. 129), this should have been enough for the court to decline any attempt to intervene. However, in the Elon Moreh case, the appeal was supported by an affidavit from the Minister of Defense, affirming that the establishment of the settlement was motivated by political ambitions rather than by security concerns. The court accepted this position, and ruled that there was therefore no basis under customary international law for the expropriation of the land.

¹⁴⁸ Zertal and Eldar, supra n. 65, at 469-480. Zertal and Eldar claim that many of the so-called public lands were actually private property which was turned into public land by technical maneuvers of an over enthusiastic Israeli legal service.

¹⁴⁹ Ibid., at 468.

¹⁵⁰ Perry, Yoram, “From an Enlisted Media to a Critical Media” in Erez, Ram, ed. The Relationship Between Civil and Military Authorities in Israel (Michigan, Yaffe Center, 2003) 61 [in Hebrew]Google Scholar.

¹⁵¹ Keren, Michael, The Pen and the Sword: Israel's Intellectuals and the Making of the Nation State (Boulder Co., Westview Press, 1989) 121–124 Google Scholar; Levy, Yagil, The Other Army of Israel: Materialist Militarism in Israel (Tel Aviv, Yedioth Ahronoth, 2003) 95–105 [in Hebrew]Google Scholar.

¹⁵² Hofnung, supra n. 83, at 324, and Benvenisti supra n. 17, describe the court's review of the IDF's actions in the territories as administrative. However, they do not focus on the fact that this administrative review is quite different from domestic review, because of the fact that there is no legislative branch to oversee the administration, a fact very prominent in the life of domestic administration. The fact that the court employed tools of review applicable to domestic administration meant that nobody reviewed the substance of these decisions.

¹⁵³ Wilson, James Q., Bureaucracy: What Government Agencies Do and Why They Do It (New York, Basic Books, 1989) 182 Google Scholar; Carpenter, Daniel, The Forging of Bureaucratic Autonomy: Reputations, Networks and Policy Innovation in Executive Agencies, 1862-1928 (Princeton, Princeton University Press, 2001)Google Scholar.

¹⁵⁴ Hofnung, supra n. 83, at 321.

¹⁵⁵ From a mere few thousand in 1977 (not including east Jerusalem) the number grew to 35,000 in 1984, and 81,000 in 1990. Zertal and Eldar, supra n. 65, at 140.

¹⁵⁶ Benvenisti, Eyal, “Deportations Without Prior Hearings” (1993) 1 Mishpat Umimshal 441 [in Hebrew]Google Scholar.

¹⁵⁷ Zertal and Eldar, supra n. 65.

¹⁵⁸ In 1992 the Knesset passed two new Basic Law. (Basic Law: Dignity and Freedom of the Person, and Basic Law: Freedom of Occupation). The Constitutional Revolution theory, closely associated with the work of Aharon Barak, the President of Israel's Supreme Court, asserts that these laws amount to a Constitution. See e.g. Barak, Aharon, Interpretation in Law (2001)Google Scholar; Constitutional Interpretation (1994); Basic Law: Honor and Freedom of Persons (1992) (Jerusalem, Nevo)Google Scholar. The doctrine was adopted by the Supreme Court in C.A. 6821/93 United Mizrachi Bank v. Migdal 49(4) P. D. 221.

¹⁵⁹ Peled, Yoav and Shafir, Gershon, “The Roots of Peacemaking” (1996) 28 Int'l J. of Middle East Stud. 395 Google Scholar.

¹⁶⁰ Levy, supra n. 151.

¹⁶¹ Hofnung, supra n. 83, at 276. Hofnung notes that another reason for the growing political and civilian interest in the actions of the armies in the territories was the rise of the Likud party to power. In addition, the emerging settlements movement caused many more Israeli civilians to come into day-to-day contact with the territories.

¹⁶² Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (The Landau Report) (October 1987) [in Hebrew] Excerpts translated into English appeared in (1989) 23 Is.L.R. 146 CrossRefGoogle Scholar.

¹⁶³ Perry, supra n. 150, at 184 and 190.

¹⁶⁴ This tendency of the court to review the discretion of the IDF also became evident in matters not connected with the territories. Thus, during the 1990s the Supreme Court forced the army to accept women into fighter pilot's course (H.C.J. 4541/94 Alice Miller v. Minister of Defense 49(4) P.D. 103); the court ruled that a Brigadier General convicted in the past for sexual harassment could not be promoted, notwithstanding the protests of the Chief of the General Staff. (H.C.J. 1284/99 Anonymous v. The Chief of the General Staff 53(2) PD 62). Similarly, the court also reviewed the longstanding IDF policy of standardizing all epitaphs to soldiers who had been killed during their army service. (See H.C.J. 3299/93 Vicselbaum v. Minister of Defense 49(2) P.D. 195). Due to these and other important developments in Israeli society in the 1990s, the IDF lost its status as being above criticism, and public criticism of the army became legitimate. See e.g. Doron, Gideon and Lebel, Udi, “An Organization Defending Itself: The Military System Versus the Bereaved Parents” (2000) 9 Plilim 369 [in Hebrew]Google Scholar. This judicial intervention has sometimes been criticized as over- interventionist and populist see Bendor, Ariel, “Military Atmosphere in Judicial Review—Between Justiciablility and Popularity: HCJ 3959/99 Movement for Quality of Government in Israel v. Committee on Reconsideration of Penalties” (2000) 9 Plilim 413 [in Hebrew]Google Scholar.

¹⁶⁵ Dotan, Yoav, “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice during the Intifiada” (1999) 33 Law & Soc'y Rev. 319 CrossRefGoogle Scholar.

¹⁶⁶ H.C.J. 425/89 Zuffan v. MAG 43(4) P.D. 718 (hereinafter “Yehuda Meir” case)

¹⁶⁷ E.g., Jama'at Aschan v. Commander of IDF Forces in Judea and Samaria Region, supra n. 106 [The court approved expropriation of private land to build a road on the basis that it would serve the local population. The road was actually intended to create an alternative route to connect Tel Aviv with Jerusalem]; Abu Aita v. Commander of Judea and Samaria Region, supra n. 106 [The court approved the introduction of VAT in the territories. The tax was clearly intended to harmonize the tax laws of the territories with those of Israel]; Association for Civil Rights in Israel v. Minister of Defense, supra n. 141 [The court approved deportation of more than 400 Hamas members, without acknowledging even once that this was not a decision of the military commander, but actually of the government] see generally: Benvenisti, supra n. 156, at 453.

¹⁶⁸ H.C.J. 769/02 Public Committee Against Torture in Israel v. the State of Israel 53(4) P.D. 817.

¹⁶⁹ See Reichman, Amnon, “When We Sit to Judge, We are Being Judged” (2001) 9 Card. J. Int'l & Comp. L. 41 Google Scholar.

¹⁷⁰ Barak-Erez, Daphne, “The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue” (2004) 2(4) I-Con 611 Google Scholar.

¹⁷¹ Levy, supra n. 151, at 175.

¹⁷² Strashnov, Amnon, Justice Under Fire (Tel Aviv, Yedioth Ahronot, 1994) [in Hebrew]Google Scholar, Mudrik, Oded, Legal Responsibility of a Commander: A Procedural Observation (2000) 9 Plilim 285 [in Hebrew]Google Scholar.

¹⁷³ Non-Governmental Organizations branch in the IDF's Spokesperson Unit.

¹⁷⁴ A major debate erupted around the decision of the MAG to prosecute an officer for negligent homicide for a decision he made to depart from his assigned route during an operation in Lebanon, allegedly causing the death of one his soldiers by friendly fire. See Doron and Lebel, supra n. 164, at 386.

¹⁷⁵ The court, in what can only be described as several questionable decisions, interpreted article 49 of the Geneva Convention as not prohibiting the deportations of an individual accused of terrorism. Afu v. IDF Commander in the West Bank, supra n. 109.

¹⁷⁶ Kretzmer supra n. 17, at 185.

¹⁷⁷ According to B'TSELEM, Israel used demolition of houses as punishments (i.e. not including those houses ruined by fire as an operational incident, or those demolished in order to widen roads etc.) only 18 times between 1993-1998, and completely abolished this policy between 1998-2001. (as opposed to 1,387 demolitions between 1967-1987, and 628 houses demolished since October 200, when the policy was reinitiated) see B'TSELEM report: Through No Fault of Their Own: Punitive House Demolitions During the al-Aqsa Intifada, (November 2004) available at http://www.btselem.org/download/200411_Punitive_House_Demolitions_Eng.pdf#search='B%27TSelem%20report%3A%20Through%20No%20Fault%20of%20Their%20Own%3A%20Punitive%20House%20Demolitions%20During%20the%20alAqsa%20Intifada' (last checked September 2005).

¹⁷⁸ Once again, according to Yagil Levy, this change was internal, and there was a re-change in the late 1990's which caused the IDF to reclaim its traditional organizational culture. See Levy, supra n. 151, at 342.

¹⁷⁹ This claim should be differentiated from the one raised by Yagil Levy. Levy assumes that the escalation of violence itself was a result of IDF's actions, since the IDF had an interest, for internal reasons, in creating such a conflict. Levy, supra n. 151, at 377. Some support to Levy's claim may be found in journalistic reports of the events in September — November 2000. See e.g. Isacharoff, Avi and Harel, Amos, The Seventh War (Tel Aviv, Yedioth Ahronoth, 2004) 35–36 Google Scholar.

¹⁸⁰ The Hamas had committed acts of terrorism throughout the entire period 1993-2000, and had been especially active in the mid-1990s. Fifty-nine Israelis had been killed in just one fortnight at the beginning of 1996. Moreover, later that year Palestinian police had opened fire on Israeli troops (“the Western Wall Tunnel incident”) killing 15.

¹⁸¹ Legal position submitted to the Chief of Staff, written by Col. Daniel Reizner, advisor for matters of international law to the Military Advocate General, quoted in Isacharoff and Harel, supra n. 179, at 195.

¹⁸² Specific data is quoted by Isacharoff and Harel, supra n. 179, at 36, based on press release of the IDF.

¹⁸³ As to the definition of war see Geneva Conventions (1949) common article 2: “any armed conflict which may arise between two or more of the High Contracting parties…”. But see Protocol I Additional to the Geneva Conventions (1977) article 1(4): “The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…” (This article is probably not customary international law, and hence does not apply in Israel which did not ratify the first protocol.)

¹⁸⁴ Protocol I Additional to the Geneva Conventions (1977) Article 43(2): “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.”

¹⁸⁵ Mentioned in Article 4(2) to the Geneva Convention Relative to the Treatment of Prisoners of War (August 12, 1949) [Third Geneva Convention].

¹⁸⁶ The concept of illegal combatancy was presented in the most articulate manner in the state's response to an appeal to the Israeli Supreme Court directed against the policy of targeted killings. See Public Committee against Torture in Israel v. Government of Israel, supra n. 168 response of the state to the appeal (on file with author).

The term “illegal combatant” is not mentioned explicitly in the Geneva Conventions or protocols. Of course the Conventions and protocols did pose some requirements to a person wishing to obtain a status of combatant, and thus seemingly created also a possibility of illegal combatancy—that is: soldiers not wearing uniforms, not respecting the laws of war, not carrying their arms openly, etc. This position was traditionally given to specific soldiers who fought without conforming to the norms required of formal troops. They were termed illegal combatants (or “illegal belligerents”) and not given the status of prisoners of war when captured. See Ex Parte Quirin et. al. 317 US 1 (1942) 30-31. Roberts, Adam, “The Laws of War in the War on Terror” (2003) 32 Isr. Y.B. Hum. Rts. 193, at 222–239 Google Scholar.

Traditionally, in internal strife or conflicts, the non-combatants were considered civilians. As such, they lost some of the protections afforded to them, when carrying arms openly, but were generally treated as criminals, and afforded the rights afforded to criminals if caught. Designating a military conflict as one where a side constitutes entirely illegal combatants is a recent development. In Afghanistan, the US declared that all Taliban warriors are “illegal combatants” they are not allowed to fight American soldiers, but can be killed by Americans at will, and do not deserve a trial if caught. Hence, the conflict became one in which one side has no rights, and the other almost no limits. Roberts, Ibid. See also Ben-Naftali, Orna and Michaeli, Keren, “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings” (2003) 36 Cornell Int'l L.J. 233 Google Scholar.

¹⁸⁷ E.g. H.C.J. 2056/04 The Village Council of Beit Sourik v. The Government of Israel 58 (5) P.D. 807, (The separation barrier case) paragraph 1 of the opinion of Justice Barak (“…a little while after the failure of the Camp David talks, the Israeli–Palestinian conflict reached new levels of violence. In September 2000 the Palestinian side resorted to a terrorist offensive against Israel and Israelis. Terror acts are taking place both in the territories and in Israel. They are directed against civilians and soldiers, men and women, elders and children, laymen and public figures…”). For an English translation of this case see 38 (1–2) Is.L.R. 83 Google Scholar; H.C.J. 3239/02 Mar'av v. IDF Commander in Judea and Samaria 57(2) P.D. 349, Paragraph 1 of the opinion of Justice Barak (“In the area of Judea and Samaria as well as in Israel, many terrible acts of terrorism have taken place since September 2000. Israel's security forces are fighting against these acts of terror. In order to beat the infrastructure of terrorism, the government of Israel decided on a large scale operation.” (my translation from Hebrew, A.C.))

¹⁸⁸ Perry, supra n. 150.

¹⁸⁹ A further policy adopted since 2000 is that of targeted killings. For the first time the IDF (or for that matter, any other army) publicly and openly admits that it targets specific terrorists, heads of terrorist organizations, and other persons involved in the fight against Israel. This policy, too, is questionable under international law. For some of the opinions regarding this policy see Ben-Naftali and Michaeli, supra n. 186 (claiming that a policy of targeted killings by Israel is not allowed under relevant international law, although it might be legal in some specific instances) also see Gross, Emanuel, “Thwarting Terrorist Acts By Attacking The Perpetrators Or Their Commanders As An Act Of Self-Defense: Human Rights Versus The State's Duty To Protect Its Citizens” (2001) 15 Temp. Int'l & Comp. L.J. 195 Google Scholar (claiming that the policy of targeted killings is legal, although precautions have to be taken when using it). The Israeli Supreme Court is currently facing an appeal challenging the legality of the policy of targeted killings.

¹⁹⁰ See B'TSELEM report, supra n. 177.

¹⁹¹ Kretzmer, supra n. 17.

¹⁹² Article 33 of the Fourth Geneva Convention forbids all manners of collective punishment. According to Article 53 of the Fourth Geneva Convention: “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Interpreting the term absolutely necessary by military operations to include deterrence of potential terrorists is clearly against the simple meaning of the words, which differentiate between military operation, and security needs, and also require that the destruction be “absolutely necessary.” See Kretzmer, supra n. 17, at 147-148, and authorities cited at footnote 18. Ibid., Compare article 62, which allows limitations on receiving individual relief consignments based on “imperative reasons of security.” But see Shamgar supra n. 1, at 275, who claims that the military operations include deterrence, though he does not explain what the term “absolutely necessary” might mean.

¹⁹³ B'TSELEM report, supra n. 177.

¹⁹⁴ Article 78 of the 4^th Geneva Convention states: “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”

¹⁹⁵ From the wording of the Article 78 it seems that assigned residence is something less than internment, but on the same scale. Because internment is intended to oversee the actions of suspected persons, it is quite clear that in the same article the assigned residence toll is directed to achieve the same result. Ben-Naftali, Orna and Michaeli, Keren, “The Call of Abraham: Between Man and ‘Makom’: Following HCJ 7015/02 Ajuri v. IDF Commander in the West Bank” (2003) 15 Hamishpat 56 [in Hebrew]Google Scholar.

¹⁹⁶ H.C.J. 7015/02 Ajuri et al. v. IDF Commander in the West Bank (96) P.D. 1021.

¹⁹⁷ Published mainly by HAMOKED—Center for the Defense of the Individual and B'TSELEM. Of course, such reports should be evaluated critically. They can usually be evaluated as believable according to specific standards see e.g. Neier, Aryeh, “Not All Human Rights Groups are Equal” New York Times, May 27, 1989 Google Scholar, reprinted in Steiner, Henry J. and Alston, Philip, International Human Rights in Context (New York, Clarendon Press, 2000) 945 Google Scholar.

¹⁹⁸ Minka-Brand, Hadas, The Relationship between Soldiers' Personality Traits and their Behavior towards Palestinian Civilians in Judea and Samaria (MA thesis, Tel Aviv University, 2003) (on file with Author)Google Scholar.

¹⁹⁹ Supra text of n. 28.

²⁰⁰ A group of young IDF reservists, on completion of their service, organized an exhibition entitled “Breaking Silence” in which they showed pictures of the way in which Palestinians are treated at barriers, and also put on display hundreds of private articles taken from Palestinians, like car-keys. The organizers of the exhibition were questioned by the Military Police.

²⁰¹ E.g. B'TSELEM report infra n. 203.

²⁰² Maj. General Yishai Beer, the President of the Military Court of Appeals, when relating to the moral character of the army, has said: “The Army as an organization does not understand the matter in depth. It really understands only the external perspective. It is a utilitarian approach according to which it is useful for the army to respect rights because in this way it will get better soldiers”, Oral presentation at a conference, reproduced in: The Army-Society project of the IDF and the Israel Democracy Institute (Jerusalem, 2001) at 117 Google Scholar. (My translation from Hebrew A.C.).

²⁰³ According to reports by B'TSELEM, of the more than 3000 Palestinians killed between September 2000 and December 2004, 1,661 were not involved in any armed activity against Israel, or the IDF. IDF admits a lesser number of non-combatant deaths, ranging around 500. The point is, however, that it is precisely Israel's policy of not opening investigations that makes it impossible to verify which numbers are correct.

²⁰⁴ Based on B'TSELEM data in the B'TSELEM website http://www.btselem.org. Report of the HAMOKED available at http://www.hamoked.org.il/items/11108.pdf (last visited September 2005).

²⁰⁵ E.g. on December 7^th 2004 B'TSELEM publicized a report according to which soldiers from one of Israel's elite commando unit shot a suspected terrorist after he was wounded, [see: Press Release: Results of B'Tselem Investigation: Serious Suspicion that IDF Executed an Unarmed and Injured Palestinian (6.12.04) available at http://www.btselem.org/English/Press_Releases/20041206.asp (last visited September 2005). The army was forced to investigate the events, and there was some public outcry. See: Harel, Amos and Shchif, Zeev, “External Team to Probe Killing of Jihad Man in Jenin” Haaretz English Edition, December 7, 2004 p. A1 Google Scholar. In another event, the TV caught pictures of soldiers forcing a young Palestinian violinist to play the violin in front of them (supposedly in order to assure that the violin did not contain explosives). B'TSELEM reports on killings of civilians forced the IDF to admit that 29 innocent civilians had been killed by the IDF in the West Bank in 2004 (Haaretz, English Internet Edition, December 9, 2004). (B'TSELEM itself claimed that the number was 111, see their Press Release: Two-thirds of Palestinians Killed in the West Bank This Year Did not Participate in the Fighting (8.12.04) available at http://www.btselem.org/English/Press_Releases/20041208.asp) (last visited September 2005).

²⁰⁶ In the first 6 month of 2005, security measures in the territories were discussed in the Plenary session at least 18 times.

²⁰⁷ Report of the Public Committee for the Examination of Parliamentary Supervision over the Security System, (Jerusalem, Rubinstein Commission, 2004) 7 Google Scholar (on file with author). Adopted by the Foreign Affairs and Security Committee in Principles of the Work of the Foreign Affairs Committee (Jerusalem, Foreign Affairs Committee, without date, circa 2004)Google Scholar (on file with author).

²⁰⁸ Ajuri et al. v. IDF Commander in the West Bank, supra n. 196.

²⁰⁹ The Village Council of Beit Sourik v. The Government of Israel, supra n. 187;

HCJ 7957/04 Marabeh v. The Prime Minister [fence surrounding Alfei Menashe] (unpublished decision of September 15^th, 2005) Available at: http://elyon1.court.gov.il/files/04/570/079/a14/04079570.a14.HTM, English summary available at: http://elyon1.court.gov.il/heb/dover/html/hodaot_hanhalat.htm#msg4863 (last visited September, 2005).

²¹⁰ H.C.J. 4764/04 Doctors for Human Rights v. IDF Commander in the Gaza Strip, 58(5) PD 385.

²¹¹ H.C.J. 3799/02 Adalla v. Commander of Central Command (unpublished decision of 18.8.02) Available at: http://elyon2.court.gov.il/files/02/990/037/J07/02037990.J07.htm (last visited September 2005).

²¹² H.C.J. 3799/02 Adalla v. Commander of Central Command (decision of 6/10/05 not yet published).

²¹³ H.C.J. 9594/03 B'TSELEM v. MAG (unpublished decision, 7. 14.05) available at: http://elyon1.court.gov.il/files/03/940/095/n15/03095940.n15.HTM (last visited September 2005).

²¹⁴ Both of these courts were created by Security Council resolutions, and in both war criminals from former Yugoslavia and from Rwanda have been indicted and convicted.

²¹⁵ On the ICC in general see Schabas, William, An Introduction to the International Criminal Court (Cambridge, Cambridge University Press, 2004)CrossRefGoogle Scholar. On the chance that Israelis would be tried before this court see Shany, Yuval, “The Ramifications of the Entry into Force of the Rome Statute of the International Criminal Court from the Israeli Perspective” (2003) 15 Hamishpat 28 [in Hebrew]Google Scholar.

²¹⁶ The ICC's jurisdiction is based on the principle of complimentarity: it has authority to try only if it is clear that the domestic system is unwilling or unable to prosecute for this crime. Rome Statute of the International Criminal Court article 17. Available at http://www.un.org/law/icc/statute/romefra.htm (last visited September 2005).

²¹⁷ In late 2004 IDF soldiers killed a young Palestinian girl in the Gaza strip, apparently because she was approaching too closely to an army post. After shooting the girl, the commander of the post allegedly “verified” she was indeed dead by shooting her several more times. This incident raised a public outcry in Israel, especially as it was filmed by soldiers themselves.

²¹⁸ Doctors for Human Rights v. IDF Commander in the Gaza Strip, supra n. 210, para. 3 to the opinion of Justice Barak.

²¹⁹ A similar declaration was submitted to the Supreme Court. HCJ 4969/04 Adalla v. Commander of Southern Command, IDF (unpublished decision of 7. 13.05). Available at: http://elyon1.court.gov.il/files/04/690/049/a26/04049690.a26.HTM (last visited September 2005).

²²⁰ Koh, supra n. 4.