1 See the French, English and Hebrew versions of the Hague Convention of 1907 respecting the Laws and Customs of War on Land, to which the Regulations respecting the Laws and Customs of War on Land are appended, in the following publications: Parry, C., The Consolidated Treaty Series, 1907, vol. 205(1980) 277Google Scholar; Schindler, and Toman, , eds., The Laws of Armed Conflicts. A Collection of Conventions, Resolutions and Other Documents(2nded., 1981) 63Google Scholar; Feinstein, B., ed., Sources in Public International Law(Academon, 1983, in Hebrew) vol. 1, p. 271Google Scholar. (This collection includes also the English version at 286.)

2 UNTS, vol. 75 (1950), No. 973, p. 287; K.A. No. 30, vol. 1, p. 559 — English, French and Hebrew versions.

3 (1971) 1 Israel Yearbook on Human Rights 262.

4 Ibid., at 263.

5 Ibid., at 266.

6 Ibid.Meir Shamgar later reiterated — when he was a Supreme Court judge — the position of the Government of Israel in his article: “Legal Concepts and Problems of the Israeli Military Government — The Initial Stage” in Shamgar, M., ed., Military Government in the Territories Administered by Israel, 1967-1980: The Legal Aspects (Jerusalem, 1982) Vol. 1, p. 13Google Scholar. He wrote that “ … the non-admission of the applicability of the Fourth Convention expressed one of the fundamental standpoints of the Israeli authorities … ” (p. 33). According to him, Israel feared that automatic applicability of the Fourth Convention would inadvertently engender a change in the political status quo by granting Egypt and Jordan sovereign status whose “reversionary rights” Israel would be compelled to honour (p. 37). This approach is based on the contents of Art. 2 of the Geneva Convention which states, inter alia: “The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party …” (emphasis added). Israel, Jordan and Egypt are parties to the Convention.

7 I am grateful to the office of the Legal Advisor to the Ministry of Foreign Affairs for supplying this information.

8 A/32/PV 27, 10 October 1977.

9 A/32/PV 47, 26 October 1977.

10 SCOR, 34th year, 2131st mtg, 19 March 1979.

11 Ibid.

12 This address was not published in the International Committee of the Red Cross Report of the 25th Conference. I wish to thank the office of the Legal Advisor to the Ministry of Foreign Affairs for supplying me with the text of the address.

13 Israel's position, as outlined in Colonel Singer's foregoing speech, found expression in the annual report for 1986 of the International Committee of the Red Cross, which stated: “The Israeli authorities … consider that the de jure applicability of the Fourth Convention presents difficulties, but state that they apply its provisions de facto in the Gaza Strip and on the West Bank”. International Committee of the Red Cross, Annual Report, 1986, p. 71Google Scholar.

14 I am grateful to the office of the Legal Advisor to the Ministry of Foreign Affairs which supplied me with the contents of the letter.

15 During his official visit to Israel in June 1989, the President of the International Committee of the Red Cross, Cornelio Sommaruga, stressed to his hosts the necessity for full implementation of the Fourth Geneva Convention. The response of the Israeli government was described by him in the following way: “… the Israeli government was again not prepared to do so in legal terms. I did, nevertheless, receive assurances from all the ministers I met that they would apply de facto all the provisions of the Convention in the occupied territories”. ICRC Bulletin, No. 163, August 1989.

16 See, for example, the United Nations General Assembly Resolution 43/58 of 6 September 1988, part B. See also: United Nations, The Question of the Observance of the Fourth Geneva Convention of 1949 in Gaza and the West Bank, Including Jerusalem, Occupied by Israel in June 1967(1979) 3–14Google Scholar. On the position of the International Committee of the Red Cross see the above mentioned publication, supra n. 15, at 11, and also, for example, ICRC, Annual Report, 1987, p. 83Google Scholar: “…In the conflict between Israel and the Arab countries, the ICRC considers that the conditions for application of the Fourth Convention are fulfilled in all the occupied territories, namely the West Bank, the Gaza Strip, Golan and East Jerusalem, whatever status the Israeli authorities ascribe to those territories …” On 21 April 1978, in an opinion regarding the legality of establishing Israeli settlements in the territories, the legal advisor at that time to the State Department of the U.S., Herbert J. Hansel, stated that the Fourth Geneva Convention applies to the territories in accordance with Articles 1, 2 and 4 contained therein. In his words: “The Fourth Geneva Convention, to which Israel, Egypt and Jordan are parties, binds signatories with respect to their territories and the territory of other contracting parties, and ‘in all circumstances’ (Article 1), in ‘all cases’ of armed conflict among them (Article 2) and with respect to all persons who “in any manner whatsoever” find themselves under the control of a party of which they are not nationals (Article 4)”. (1978) 72 Am. J. Int'l L. 911Google Scholar. Compare: Boyd, S.M., “The Applicability of International Law to the Occupied Territories” (1971) 1 Israel Yearbook on Human Rights 258–261Google Scholarand Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967” (1990) 84 Am. J. Int'l L. 61–70CrossRefGoogle Scholar.

17 Emphasis added.

18 The government's view equating the applicability of the Geneva Convention with the applicability of the Hague Regulations emerges clearly in the interpretation of the government's position given by the former Supreme Court Justice Haim Cohn. In the preface to the booklet The Rule of Law in the Areas Administered by Israel(1981) published by the Israel Section of the International Commission of JuristsGoogle Scholar, Justice Cohn writes (p. vii): “[The question as to the status under international law of the administered areas …] centres on the applicability in and to these areas of the international conventions relating to the belligerent occupation of enemy territory as a result of war; and the Israeli official position has always been that the areas in issue here have never been ‘enemy territory’ in the sense that they were never lawfully under the sovereignty of the Hashemite Kingdom of Jordan. But be that as it may, and whether or not those international conventions are binding on the State of Israel in respect of its administration of such territories, it has from the very first been the declared policy of tjie State of Israel that its military and civil organs abide by the humanitarian provisions of the Hague Regulations and the Fourth Geneva Convention of 1949 as if they were binding and applicable”, (emphasis added)

19 Dweikat v. Government of Israel (1980) 34(i) P.D. 1, at 29.

20 (1988) 42(iii) P.D. 801.

21 See Prof. R. Lapidoth, in this issue, p. 476.

22 See Justice H. Cohn, supra n. 18.

23 See, for example, the Beth-El case, Ayub et al. v. Minister of Defence et al.; Matawa et al. v. Minister of Defence et al. (1979) 33(ii) P.D. 113, at 119-122, 128-129; the Elon Moreh case, supra n. 19, at 29; Jerusalem Electric Company v. Minister of Energy and Infrastructure et al. (1981) 35(ii) P.D. 673, at 688; Affu et al. v. Commander of I.D.F. Forces in the West Bank et al. (1988) 42(ii) P.D. 4, at 47, 67; Sejdiah et al. v. Minister of Defence, supra n. 20, at 829.

24 As Mr. Rubin explains, the Supreme Court's approach runs counter to the British doctrine, according to which agreements made under the prerogative of the Crown to wage war become part of municipal law even without specific legislation by Parliament. Rubin, B., “The Adoption of International Treaties into Israel Law by the Courts” (1983) 13 Mishpatim210, at 214, 238, 240Google Scholar. In analysing the case of Porter v. Freudenberg [1915] 1 K.B. 857, Mann reaches the conclusion that in the absence of any relevant limitation by Parliament on the Crown's prerogative in time of war, the Crown is permitted to alter the common law by means of a treaty. Mann, F.A., “The Enforcement of Treaties by English Courts”, in Transactions of the Grotius Society(1958–1959) 38Google Scholar. See also: McNair, A., “When Do British Treaties Involve Legislation?” (1928) Br. Yrbk Int'l L. 59Google Scholar. The author points out that in numerous cases citizens of both enemy countries as well as of neutral countries were allowed to bring suits in British courts basing themselves on the Hague Conventions of 1899 and 1907, which were made by the Crown but were not ratified by a law of Parliament.

25 In this connection see Rubinstein, Amnon, “The Changing Status of the Territories — From Trust to Legal Hybrid” (1985–1986) 11 Iyunei Mishpat 439Google Scholar. It is difficult to understand, writes the author, “how the Knesset could, even if it wanted to, legislate the [Fourth] Convention since the Knesset exercises its authority, by definition, over persons and territories which are under its jurisdiction”. In principle, states the author, the accepted rule regarding the need to “incorporate” treaties refers to treaties intended to apply in the area of municipal law, and not to a treaty which “by its very nature is not meant to be applied at all to the area of jurisdiction of the State and is not intended to affect the essence of municipal law, but deals entirely and exclusively with territories and relationships which lie outside of the area of jurisdiction …” (p. 446). (Emphasis in the original. In fact, some of the provisions of the Fourth Geneva Convention deal with “protected persons” who are in the area of jurisdiction of the State — e.g. Articles 35-36. Moreover, according to Article 146 of the Convention, the parties are obliged to pass laws punishing persons who are responsible for grave breaches of the Convention.)

The foregoing position of Prof. Rubinstein did not prevent him from tabling in the Knesset, on 16 January 1989, a private member's bill under the title “Geneva Conventions Law 1989”. According to his proposal, the four Geneva Conventions of 1949, “will have the force of law”. The primary motive of Prof. Rubinstein was to make it possible for the Supreme Court to exercise judicial review, on the basis of the Fourth Convention (see the explanatory notes to the proposed law).

26 Referring to the distinction drawn by the courts in Israel between declarative treaties and constitutional treaties, Dr. Shabbtai Rosenne writes that he cannot understand why the Hague Convention of 1907 is classified in one category whereas the Geneva Convention of 1949 is classified in another. He points out that the International Law Commission of the United Nations makes it a practice to include in the draft treaties which it prepares a statement to the effect that its work in any given area comprises both codification as well as development of international law. In his view it is difficult to say categorically that a treaty obligates a country which is not a party to it because that treaty “as a whole” is part of customary international law. Rosenne, S., “A Communication to the Editor” (1980) 15 Is.L.R. 463–465CrossRefGoogle Scholar. See also E. Nathan, “The Power of Supervision of the High Court of Justice Over the Military Government”, in Shamgar, ed., supra n. 6, at 137-141.

27 Emphasis added.

28 See, for example, the customary rule regarding the prohibition of the use of weapons, projectiles and materials of a nature to cause superfluous injury or unnecessary suffering (Article 35(2)), in contrast to the new rule regarding the applicability of the Geneva Conventions and the Protocol to 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 (Article 1(3)(4)).

29 Oppenheim-Lauterpacht, , International Law, vol. II(7thed., 1952) 451Google Scholar. There is a printing error in the numbering of the articles: 47-48, instead of 47-78.

30 Supra n. 6.

31 Ibid., at 32.

32 See also Meron, Th., “The Geneva Conventions as Customary Law” (1987) 81 Am. J. In'lT L.348-370, especially at 364Google Scholar.

33 (1981) 35(i) P.D. 617, at 638.

34 Ibid., at 638-647.

35 Dinstein, Y., “Deportation from Administrated Territories” (1988) 13 Iyunei Mishpat 409Google Scholar.

36 (1988) 42(ii) P.D. 522.

37 In the opinion of the International Committee of the Red Cross the demolition or sealing of houses is a violation of Article 53 of the Fourth Convention. See International Review of the Red Cross, Jan.-Feb. 1987, p. 69Google Scholar.

38 In his aforementioned article, “The Observance of International Law in the Administered Territories”, Meir Shamgar devotes a special section to the question of demolition of houses. He analyses Article 53 of the Fourth Geneva Convention and arrives at the conclusion that even if Regulation 119 is not in force, one may, under suitable conditions, permit the demolition of houses by virtue of Article 53. See also the section on demolition and sealing of houses in The Rule of Law in the Areas Administered by Israel, supra n. 18, at 69-71.

39 (1980) 34(i) P.D. 464.

40 (1986) 40(ii) P.D. 42.

41 It is clear from the foregoing judgment (p. 44) that the arguments of the plaintiffs, including those relying on international law, had already been raised in previous High Court of Justice cases dealing with demolition or sealing of houses: Hamed et al. v. Commander of Judea and Samaria Region (1981) 35(iii) P.D. 223; Hamam'ra v. Minister of Defence et al. (1982) 36(ii) P.D. 755; and Hamari v. Commander of Judea and Samaria Region (1982) 36(iii) P.D. 439. However, in these judgments there is no reference at all to the arguments or counter-arguments based on international law. Similarly, there is no mention of international law in the following judgments, which deal with the demolition or sealing of houses: Muslah v. Minister of Defence (1982) 36(iv) P.D. 610; Abu Alan et al. v. Minister of Defence et al. (1983) 37(ii) P.D. 169.

42 Supra n. 23.

43 Ibid., at 28.

44 Ibid., at 70.

45 Ibid., at 76.

46 Article 7 of the law proposed by Prof. Rubinstein, supra n. 25, provides that “nothing said in this law shall be interpreted as recognizing the sovereignty of another state in Judea and Samaria”.

47 The above legal policy of the Israeli government was cited by the plaintiffs in the appeal to the High Court of Justice, L.S.M. Law in the Service of Man et al. v. Military Commander of Judea and Samaria (1988) 42(iii) P.D. 260. The appeal was filed against an ordinance of the defendant, issued by virtue of the power vested in him by Regulation 130 of the Defence (Emergency) Regulations 1945, limiting the use of international telephone calls in the Judea and Samaria region. It was argued, inter alia, that the ordinance constitutes collective punishment, which is prohibited by the rules of public international law, and that the defendant's action is a “violation of the government decision to uphold in practice the humanitarian provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949, a decision which is tantamount to a binding declaration of policy whose implementation the court is authorized to impose upon the executive branch” (pp. 262-263). The judgment in this case, handed down by Shamgar P., Elon and Bach JJ. concurring, points out that there is no basis for the claim that the limitation in the use of telephone services is in the category of actions which are not acceptable in public international law. The court referred in this case to the learned opinions of Von Glahn and Greenspan as well as to the military manuals of Great Britain and the United States.

48 (1983) 37(iv) P.D. 793.

49 Ibid., at 810.

50 The applicability of the Geneva Convention in the occupied territories would serve as a fitting basis for the High Command's order 33.0133 of 20 July 1982, which binds I.D.F. soldiers to observe the injunctions spelled out in the four Geneva Conventions of 1949.