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Municipal Elections in Occupied Judea and Samaria
Published online by Cambridge University Press: 12 February 2016
Extract
One of the principal functions of military government in an occupied area is to return civil life to its normal course. Such a goal is not only a political objective whose advantages are obvious; it is also based upon the principles of International Law and the Law of Warfare. The military administration bears responsibility for restoring public order and safety and maintaining essential services, so that it may fulfil the civil functions of government for the welfare of the population in the occupied area.
In the intricate framework required to supply services to the population of the occupied area by the military administration, the local municipal authorities play a substantial role. These authorities regard themselves as being closer to the residents of the occupied areas, and thus they see it as a moral duty to take care of their population and provide it with daily services.
During periods of crises and war the population tends to a greater extent to shut itself within its immediate surroundings and to request aid and encouragement from familiar local bodies; thus it becomes more and more dependent on the local authorities.
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References
1 See Article 43 of the Hague Convention Concerning the Laws and Customs of War on Land, 1907 (hereinafter—The Hague Convention); the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, (1949) K.A., vol. I, no. 30, p. 559 (hereinafter—The Geneva Convention).
2 See: Greenspan, M., The Modern Law of Land Warfare (Berkeley and Los Angeles, University of California Press, 1959) 212Google Scholar, n. 12. Shamgar, M., “The Observance of International Law in the Administered Territories” Israel Yearbook on Human Rights (hereinafter—Is. Y.H.R.) (1971) vol. I, p. 262Google Scholar, esp. p. 266 ff. And see also Von Glahn, G., The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, the University of Min nesota Press, 1957) 34.Google Scholar Regarding the application of this policy in the Israeli Administered Areas, see: Gazitt, S., “Policy in the Administered Territories” Is.Y.H.R. (1971) vol. 1, pp. 278–282.Google Scholar
3 Great Britain, the War Office, Manual of Military Law (London, Her Majesty's Stationery Office, 1958) Part III, the Law of War and Land (hereinafter— Br. M.M.L.), sections 517 (p. 144) and 579 (p. 161). Normalization of life is also characterized by the regular operation of municipal councils in the area of Judea and Samaria. See: Dr.Cohen, Amnon, “The Arab Population in the Israel-Administered West Bank” The Arabs and Palestine (Institute of Jewish Affairs, Institute Symposia No. 1, London, 1973) 40Google Scholar at p. 44 ff. Compare as well: David Farhi, “Society and Politics in Judea and Samaria” (June, 1971) Maarachot (Israel Defence Forces Publication) no. 215.
4 Consider for example the status of Sheikh Mohammed AH El-Jaabri, Hebron's Mayor.
5 Many works have been written on the effects of occupation upon the legal structure of an occupied area. See for example: Von Glahn, op. cit.; Greenspan, op. cit. at p. 209 ff.; Br. M.M.L. sections 510–523 (pp. 143–145).
6 See: Br. M.M.L., section 510 (p. 143) and no. 5.
7 Von Glahn, op. cit. at pp. 31–39; Br.M.M.L. section 516 (p. 144), and see the numerous views of experts and decisions therein.
8 Von Glahn loc. cit.
9 Article 3(a) of the Proclamation Concerning Law and Administration (the West Bank Area), No. 2, 1967, Collection of Proclamations, Orders and Appointments of the I.D.F. Command in the West Bank Area (hereinafter—CPOA), vol. 1, p. 3. Similar orders were also issued in the other areas occupied by the I.D.F. in the Six Day War. See: Article 3(1) of the Proclamation Concerning Law and Administration (Gaza Strip and Northern Sinai) (No. 2), 1967, Collection of Proclamations, Orders and Announcements of the I.D.F. Command in the Gaza Strip and Northern Sinai, vol. 1, p. 4; Article 3(a) of the Proclamation Concerning Law and Administration (Solomon Region) (No. 1), 1967, Collection of Proclamations, Orders and Announcements of the I.D.F. Command in the Solomon Region, vol. 1, p. 4; Article 3(1) of the Proclamation Concerning Law and Administration (Golan Heights) (No. 2), 1967, Collection of Proclamations, Orders and Announcements of the I.D.F. Command in the Golan Heights, vol. 1, p. 4, at p. 5.
10 And compare: Von Glahn, op. cit. at pp. 40–44, citing declarations and proclamations of military commanders in occupied areas in World War II.
11 Br. M.M.L., sections 516, 517 (p. 144), and see also, op. cit. section 579 (p. 161).
12 Examples of laws “suspended” upon occupation are cited in the Br. M.M.L., section 519 (p. 145).
13 See Article 43 of the Geneva Convention; Schwenk, E. H., “Legislative Power of the Military Occupant under Article 43, Hague Regulations” (1945) 54 YaleL.R. 393.Google Scholar And see also Article 46 of the Geneva Convention and its interpretation ir, Pictet, J. S., Commentary of the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958) 334–337Google Scholar; Von Glahn, op. cit. at p. 94 ff.
14 See Article 2 of the Proclamation Concerning Law and Administration (the West Bank Area) (No. 2) 1967, op. cit.; Article 2 of the Proclamation Concerning Law and Administration (Gaza Strip and Northern Sinai) (No. 2) 1967, op. cit.; Article 2 of the Proclamation Concerning Law and Administration (Solomon Region) (No. 1) 1967, op. cit.; Article 2 of the Proclamation Concerning Law and Administration (the Golan Heights) (No. 2), 1967, op. cit., at p. 4. Cf. Von Glahn, op. cit. at pp. 40–44.
15 See sources cited supra n. 13 and Br. M.M.L., section 523 (p. 145); Blum, Y. Z., “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is. L.R. 275, at 295 ff.Google Scholar The right to legislate in the Areas occupied by the I.D.F. has been examined by the High Court of Justice in a number of decisions. The Christian Association for Holy Places v. The Minister of Defence et al. (1971) (I) 26 P.D. 574; The Electricity Company for the District of Jerusalem Ltd. v. the Minister of Defence et al. (1972) (I) 27 P.D. 124; Abu Hilu v. the Government of Israel (1973) (II) 22 P.D. 169 (see infra p. 128). An analysis of these decisions would fall outside the scope of this article.
16 Municipal elections were held in the Rhineland (which was an occupied area) in August, 1919. See: Frankel, E., Military Occupation and the Rule of Law: Occupation Government in the Rhineland, 1918–1923 (Oxford University Press, 1944) 35.Google Scholar
17 According to Sussmann J.'s ratio decidendi it would appear that only in the special case considered therein did he recognize the validity of the Order intended to complement a local law which had thus far remained lex imperfecta ((1971) (I) 26 P.D. 583 C.). We feel that Sussmann J.'s principal decision is based upon the Military Government's duty to look after the social and economic needs of the population of the Area—“since the needs of society change as time elapses, and the law must satisfy these changing needs” op. cit. at p. 582A, at p. 581F, and at p. 582F. This is proven by the fact that this decision has been cited as reference in subsequent decisions (supra n. 15) for noting the wide legislating power of commanders of occupied areas.
18 See H. Cohn J.'s decision (a minority opinion) ((1971) (I) 26 P.D. 558 C). In subsequent decisions the right to legislate for changing needs is based on the majority opinion in that case.
19 Dinstein, Y., “The Legislating Power in Occupied Areas” (1972) 2 Iyunei Mishpat 505.Google Scholar
20 See Proclamation Concerning the Institution of Government by the I.D.F., Proclamation No. 1, CPOA, No. 1, p. 3; Proclamation Concerning Law and Administration (West Bank Area) (No. 2) 1967, op. cit., No. 1, pp. 3–4. Two of the second Proclamation's articles are cited supra nn. 9, 14.
21 Blum, op. cit.: Stone, J., No Peace—No War in the Middle East, Legal Problems of the First Year (Sydney, Maitland Publications Pty, Ltd. for the International Law Association, Australian Branch, 1969), 38–40Google Scholar; Boyd, S. M., “The Applicability of International Law to the Occupied Territories” Is. Y.H.R. (1971) vol. 1 pp. 258–261Google Scholar: Shamgar, op. cit.; “Symposium: The Applicability of the Fourth Geneva Convention to the Territories Administered by Israel” Is. Y.H.R. (1971) vol. 1, pp. 366–376 (hereinafter—Symposium); Levine, A., “The Status of Sovereignty in East Jerusalem and the West Bank” (1972) 5 N.Y. U.J. Int'l. Law and Pol. 485–502Google Scholar; Gerson, A., “Trustee—Occupant: the Legal Status of Israel's Presence in the West Bank” (1973) 14 Harv. Int'l. L.J. 1–49.Google Scholar
22 Blum, op. cit at pp. 293–294; Stone op. cit. at pp. 39–40, and see also Article 47 of the Geneva Convention, prohibiting interference with previous government institutions and Pictet's interpretation of this Article, op. cit. at pp. 273–274.
23 Blum, op. cit. at pp. 283–288; Stone, op. cit. at p. 39; Shamgar, op. cit. at pp. 264–266. Representatives of the United States and the Soviet Union at the U.N. had denounced Jordan's invasion of Judea and Samaria in 1948. See: Blum, op. cit. at p. 285; Stone, loc. cit.; Shamgar, op. cit. at pp. 264–265.
24 About Jordan's annexation of the “West Bank” see: Shwadran, B., “Jordan Annexes Arab Palestine” (1950) 1 Middle Eastern Affairs no. 4, pp. 99–111Google Scholar; Standel, A., “The Process of Annexation of the West Bank to the Kingdom of Jordan (1949–1950)” The Land of Benjamin (Tel Aviv, 1971, in Hebrew) 398–402Google Scholar; Sofer, N., “The Integration of the West Bank into the Kingdom of Jordan” The New East, (1955, in Hebrew) vol. 6, pp. 189–196.Google Scholar
25 Blum, op. cit. at pp. 289–291; Stone, loc. cit.; Shamgar, op. cit. at p. 265. Only Pakistan and Britain (the latter with a reservation regarding East-Jerusalem) had recognized the annexation of the West Bank to Jordan. The Arab countries did not recognize the annexation. See: Blum, loc. cit.; Stone, loc. cit.; Shamgar, op. cit. at p. 264; Lorch, , in Symposium, , Is. Y.H.R. (1971) vol. 1, p. 67.Google Scholar
26 Blum, op. cit. at pp. 293–294; Stone, op. cit. at pp. 39–40; Shamgar, op. cit at p. 266.
27 This is the interpretation of those who hold this view for Article 2 of the Geneva Convention.
28 And see the development of this argument by Lorch, loc. cit.; from the words of Greenspan, in Symposium, , Is. Y.H.R. (1971) vol. 1, pp. 370Google Scholar, 371, it may be concluded that he also supports this view.
29 Shamgar, loc. cit.; Lorch, loc. cit.
30 Boyd, op. cit.; Boyd in Symposium at pp. 367–368, 370–373. Boyd has a different interpretation of Article 2 of the Geneva Convention; see loc. cit.
31 Boyd, op. cit. at p. 259.
32 In his article cited supra n. 21.
33 A. Gerson, op. cit. at pp. 39–49.
34 Stone, op. cit. at p. 39.
35 Municipal Corporation Ordinance, 1934, No. 1, The Official Gazette, No. 414, Jan. 12, 1934, Supp. 1, p. 1.
36 Concerning the continued applicability of Mandate Law in Judea and Samaria following the annexation to Jordan, see: Shitrit, S., “Civil Rights in Jordanian Law” (1968) 1 Mishpatim 113, at p. 114Google Scholar; Shamgar, op. cit. at p. 264.
37 The Town Municipalities Law, No. 17 of 1954, The Jordanian Official Gazette, No. 1183, June 6, 1954 (hereinafter—the previous law).
38 Article 64 (1) of the Town Municipalities Law, No. 29, 1955.
39 The Jordanian Official Gazette, No. 1225, May 1, 1955 (hereinafter—the Law).
40 Article 8(1) of the Law. The previous law provided for a term of office of five full years (see Article 10(2) (b) of this law).
41 In accordance with the recommendation of the District Commissioner.
42 See announcement published in Supplement No. 1 of the Jordanian Official Gazette, No. 1231, June 16, 1955.
43 See introduction to the announcement, loc. cit. The announcement provided that the number of members of the Amman Municipal Council shall be 12. The number of members of the principal municipal councils of Judea and Samaria was fixed as follows: Nablus and Hebron—10; Tulkarm, Bethlehem and Ramalla—9; Jenin, Kalkilia, El-Bireh, Jericho and Beit-Sahur—8.
44 About the status of women in Jordanian Law, in general, and about the denial of their right to vote and to be elected to Parliament and to municipal councils, in particular, see Shitrit, op. cit. at p. 115, and n. 13, loc. cit. Legislation towards giving women the right to be elected to government institution and to vote began in Jordan's East Bank in 1973.
45 Under the previous law—Article 7(b) (a) of the law, which refers to Article 2(a) of the Second Supplement—males of 18 were given the right to vote.
46 Article 2(6) of the Law defines a resident according to a factual test: “Any person generally residing in the house in which he sleeps”. The article also added another criterion: place of employment. Thus a person might be entitled to vote for two municipal councils: where he resides and where he is employed. To avoid this, the last part of Article 2(6) thus provides: “No person shall make use of his right to vote in more than one municipality”. What then are the rights of a resident of Jerusalem, whose place of employment is in Judea and Samaria, and who has already voted in the municipal elections in (Israeli) Jerusalem? Is he entitled to vote in elections held in the Area of Judea and Samaria, or is he bound by Article 2(6) of the Law, prohibiting voting in more than one municipality? We feel that since municipal elections in Jerusalem are held under Israeli Law, they are not “elections” under Jordanian Law, and thus a person may exercise his right to vote in both elections. Cf. Roidi et al. v. The Hebron Military Court at al. (1969) (II) P.D. 419. This decision stated, that any person transferring antiquities, without permit, from Hebron to East-Jerusalem, violates the provisions of the Jordanian Law prohibiting illegal export “abroad”. The Court regarded East-Jerusalem as “abroad” with respect to the Area of Judea and Samaria.
47 Article 12 (3).
48 See Decision No. 14, by the Special Board for Law Interpretation, The Jordanian Official Gazette, No. 1233, July 2, 1955, stating that Land Tax includes both municipal and government taxes on land (about the Special Board for Law Interpretation, see: Shitrit, op. cit. at p. 132).
49 1 Dinar=IL. 11.76. See article 4 of the Order Concerning the Establishment of Israeli Currency as Legal Tender (the West Bank Area) (No. 76) 1967, CPOA, No. 5, p. 191, as amended in the Order Concerning the Establishment of Israeli Currency as Legal Tender (Amendment No. 2) (Judea and Samaria) (No. 443) 1971, CPOA, No. 26, p. 991. Since the municipal elections were held, the Dinar has been revalued and is now worth IL. 12.65. See Order Concerning the Establishment of Israeli Currency as Legal Tender (Amendment No. 3) (Judea and Samaria) (No. 508) 1973, CPOA No. 32, p. 1252.
50 An official of the municipality, or its employee, wishing to present his candidacy, must resign his post 10 days prior to the date of establishing candidacy. Article 18(3) of the Law.
51 These qualities are required not only on the date of presentation of candidacies, but throughout the full term of office as well. An elected officer, who fails to comply with these qualities during his term of office—shall forfeit his post. See last part of Article 18.
52 Article 10(1) of the Law.
53 Article 10(2) of the Law.
54 Article 11 of the Law.
55 The Law, however, makes it possible to appeal lists prepared by the committee before its Plenary Session (Article 13 of the Law), and the latter's dcision may be appealed before the President of the Court of First Instance having local jurisdiction over the municipality (Article 14 of the Law).
56 Article 17 of the Law. Those elected have their deposits returned—Article 19(1) of the Law. For the Dinar's value in IL. see supra n. 49.
57 Article 20 of the Law.
58 Article 23 of the Law.
59 Article 25(1) of the Law.
60 Article 34 of the Law.
61 Article 47 of the previous law.
62 Mohammed Ali El-Jaabri, Hebron's Mayor, was appointed in this manner.
63 Article 34(3) of the Law.
64 Loc. cit. The article ends thus: “The decision of the Council of Ministers in this regard is final and may not be appealed”.
65 Municipal elections in Hebron, Tulkarm, Kalkilia, Jenin, Beit-Jala and Jericho were held on Sept. 7, 1963.
66 See supra at n. 40.
67 See supra n. 34.
68 And compare: Yizhar, M.—Drori, M., “Democracy and Elections in Judea and Samaria—The Operation of Local Law in Occupied Areas: Chamber of Commerce Elections in Judea and Samaria” (1973) 1 Social Research Review no. 3, p. 31, at pp. 36–37.Google Scholar
69 Order Concerning the Extension of Term of Office of the Administrations of Local Authorities (The West Bank Area) (No. 80) 1967, CPOA No. 6, pp. 200–201. For full text of Order, see Appendix 1, infra p. 113.
70 Op. cit. at p. 200.
71 The Order extends the terms of office of all local authorities, and not only those of municipal councils.
72 Op. cit. at p. 201.
73 On the other hand, the Order permitting Israeli attorneys to appear before local courts (see discussion of this Order in Prof. Blum's article, op. cit.) had been at first formulated as a provisional Order for a limited period: 6 months; only later was it amended and extended for such period of time “until abolished by the Commander of the Area”. See Article 3 of the Order Concerning Israeli Attorneys in Court (Provisional Instruction) (The West Bank Area) (No. 145), 1967, CPOA No. 8, p. 306; Article 1 of the Order Concerning Israeli Attorneys in Court (Provisional Instructions) (Extension of Validity) (Judea and Samaria) (No. 248), 1968, CPOA, No. 13, p. 503.
74 Order Concerning Municipal Elections (Judea and Samaria) (No. 454), 1971, CPOA, No. 19, p. 1099. For full text of Order see Appendix 2, infra p. 114.
75 See Article 2 (a) of the above Order—“Elections for Municipal Councils shall be held in accordance with the Law”; and see also introduction to the Order, cited above: “Holding of elections for Municipal Councils in accordance with the Law (author's emphasis).
76 Article 3 of the above Order.
77 Davar, Dec. 20, 1971 (quoting the Military Government Spokesman); El-Quds, Dec. 20, 1971.
78 The Commissioner is the Staff Officer for Internal Affairs in the Military Government. See Appointment no. 9, CPOA No. 29, p. 1147.
79 Article 2(b) of the above Order No. 454.
80 See Order Concerning Municipal Elections (Jenin, Tulkarm, Kalkilia and Jericho) (Judea and Samaria), 1971, Nov. 26, 1971, and the Order Concerning Municipal Elections (No. 2) (Judea and Samaria), 1971, Dec. 19, 1971.
81 See Article 2(c) of the above Order No. 454, and the Introduction to the Orders mentioned in notes 82–83.
82 Order Concerning Municipal Election Date (No. 1) (Judea and Samaria), 1971, of Dec. 19, 1971.
83 Order Concerning Municipal Election Date (No. 2) (Judea and Samaria), 1972, of Jan. 30, 1972.
84 Order Concerning Municipal Elections (Provisional Instruction) (Judea and Samaria) (No. 459), 1972, CPOA No. 29, p. 1120. For full text of Order see Appendix 3, infra p. 115.
85 The Commissioner is the Staff Officer for Internal Affairs in the Military Government. See Article 1 of the above Order No. 459.
86 Article 2(a) of Order 459.
87 Article 16(1) of the Law.
88 Article 21(1) of the Law.
89 Articles 1(b) and 3 of Order 459.
90 Order Concerning Establishment of an Additional Period for Presenting Candidacies to the Nablus Municipal Elections (Judea and Samaria), 1972, of March 14, 1972.
91 See supra, at nn. 82 and 83.
92 See supra, at n. 56.
93 El-Quds, March 29, 1972; May 3, 1972.
94 Davor, May 3, 1972.
95 El-Anba, May 3, 1972; El-Quds, May 3, 1972.
96 See: Gazit, S., “Six Years of Israel's Presence in the Administered Areas” International Problems, vol. XIIGoogle Scholar, No. 1–2(23) (June, 1973, Hebrew) 6 at p. 11. About the Tazkieh see supra at n. 57.
97 At nn. 60–64.
98 See Al Hamishmar, May 8–9, 1972. The newspaper's Arab Affairs Correspondent reported that the mayors had received letters of congratulation from Jordan's Minister of the Interior. The Minister also requested the mayors who had been elected for the first time to send in their signatures, so that the Jordanian Authorities may legally confirm official documents and certificates bearing their signatures. A detailed analysis of the political aspects of municipal elections, with the background of the general political situation in the Area, is included in David Farhi's interesting article, “Political Positions in Judea and Samaria” (July, 1973) Maarachot, no. 231, p. 9, at p. 12 ff.
99 See supra at n. 95.