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Rule of Law: A veil of compliance in Israel and the oPt 2010- 2013

Given the indivisible connection between the Israeli legislative, judicial and military systems and the administration of the occupied Palestinian territory (oPt), the question of domestic application of international law in Israel is an extremely pertinent one. Generally speaking, the level of adherence to the rule of law within Israel should inform any analysis of Israel’s policies and practices in the oPt and indeed their interaction with the international community.

3/7/2014

Diakonia International Humanitarian Law Resource Centre Report Rule of Law: A veil of compliance in Israel and the oPt 2010- 2013

EXECUTIVE SUMMARY

Given the indivisible connection between the Israeli legislative, judicial and military systems and the administration of the occupied Palestinian territory (oPt), the question of domestic application of international law in Israel is an extremely pertinent one. Generally speaking, the level of adherence to the rule of law within Israel should inform any analysis of Israel’s policies and practices in the oPt and indeed their interaction with the international community.  

In this context, and other situations of armed conflict, rule of law should be defined as:

 A principle of governance in which all persons, institutions and entities, public and private, including parties to the conflict and third States are accountable to laws that are consistent with international human rights and humanitarian norms and standards.[1]

 Using the above definition, the Diakonia IHL Resource Centre Rule of Law report examines Israel’s compliance with international standards in the period between 2010 and 2013. Specifically, the report studies domestic legislation, the Israeli judiciary, and statements by the Israeli authorities in international forums. It does so while bearing in mind the obligations incumbent upon Israel as the Occupying Power to administer the oPt for the benefit of the protected Palestinian population. This includes maintaining law, order and civil life, respect and protection of private property, protecting Palestinian civilians from any form of violence, and, crucially, ensuring that their rights and needs are protected and fulfilled.

In stark contrast to this obligation, Israel has extended its authority far beyond what is permitted by international law and it is clear that the prolonged and entrenched nature of the Israeli occupation has resulted in the enduring denial of the most basic rights of the Palestinian people. By and large, the report finds that the Israel’s administration of the occupation is characterised by an aura of legality with which Israel blankets many of the serious violations of international standards that occur in the occupied territory.

Such violations have been extensively documented,[2] and most significantly include the destruction of property, the establishment and expansion of settlements, restrictions on movement, and exploitation of natural resources. All of the above contribute to a coercive environment that can lead, directly or indirectly, to the forcible transfer of the protected Palestinian population, a grave breach of the Geneva Conventions. Moreover, the excesses of Israeli policies and practices in the oPt are grounded in an internal normative and political discourse that legitimises permanent changes to the occupied territory. This discourse also facilitates the administration of occupation in a manner inconsistent with the needs of the local population, and encourages the absence of judicial oversight that should effectively scrutinise and preclude these actions.  

While the debate over annexation of parts or all of the oPt has been taking place for some time within Israel, it was frequently dismissed as being isolated to a fringe, extreme right-wing element within the political discourse. However, possibly as a by-product of negotiations, the concept is increasingly being advocated as a viable strategy of late, and not only by those who are located at the periphery of the political stratum.[3] Indeed, for many within the ruling coaltion, the question is no longer whether or not Israel should press ahead with de jure annexation, but rather, how much of the West Bank should be included in the plan and what to do with the Palestinian population located therein.[4]

In addition, a range of legislation has been passed or presented for tabling in recent years that seems to be designed to restrict freedom of expression and association within Israel and the oPt, and in a very real sense limit the freedoms and rights of the protected Palestinian population. 

At the same time, it is widely asserted that the Israeli judiciary provides meticulous domestic review of Israel’s policies and practices. However, on the numerous occasions that the scope of judicial review, its independence from alien considerations, as well as its consistency with obligations under international law have been challenged within the Israeli High Court of Justice, the Court has mostly dismissed questions relating to the application of international law. Instead, the Court has restricted arguments heard to those related to the specific facts of a given case rather than international legal obligations emanating from those.

The High Court is more comfortable addressing the procedural elements of a case rather than the substance. Regardless of the grave legal violations that they may result in, the Court usually refrains from interfering with government action or questions of policy that it deems political in nature.

Crucially, the question of the domestic application of international law in Israel is not one that has been completely ignored by the Israeli government. During the reporting period, the Levy Committee and the Turkel Commission were created to examine this specific issue. However, both Committees were greeted with skepticism and allegations that their content was more politically motivated than representing a legal assessment carried out in good faith.[5]

During the reporting period, the Israeli authorities have continued to present arguments in international forums that appear to divert attention from, justify, and entrench the protracted nature of Israeli practices and policies in the oPt and their lack of adherence to international law. This non-compliance is increasingly highlighted by unsuccessful efforts on the part of the international community to bring Israel into conformity with international law.[6] It is true that the international community has become more aware in recent years of the inaccuracy and lack of good faith in the legal positions set out by Israel. This is evident in reports and statements by the United Nations and European Union (EU) that have grown increasingly critical of Israeli policies from the perspective of international law. However, despite some exceptions, particularly on the part of the EU and certain EU Member States, very few of these statements have as of yet been translated into action.

Taken in isolation, the study of any one of the above sections of the Israeli political and judicial system would give rise to questions about the application of the rule of law. However, when taken collectively, the analysis suggests that there is a very serious and concerted failure on the part of the Israeli government and judiciary to adhere to and ensure compliance with international standards and the rule of law, including customary international law. The Israeli authorities have instead sought to cover recurring violations of international law with a veneer of legality. Indeed, many of these practices are often normalised through institutional processes which appear mundane to many observers, but once examined and understood, are simply a more discrete mechanism with which to bypass basic principles of international law.

Although this report does not conclude with a particular set of recommendations, it is hoped that the study will stimulate further critical examination of this issue and ensure greater focus on and inspection of Israel’s adherence to the rule of law. Ultimately, rule of law requires accountability to the law. This maxim applies equally to Israel as it does all members of the international community. As such, third States must abide by their obligation to ensure respect for IHL by Israel and to take all appropriate measures to end IHL violations in the oPt. Additionally, with regard to serious breaches of peremptory norms,[7] such as the denial of the Palestinian right to self-determination, all States are under an obligation not to recognise the unlawful situation as lawful, not to aid or assist in the maintenance of the unlawful situation, and to cooperate to bring the unlawful situation to an end.

 

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[1] Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008.

[2] See for example, UN Special Procedures' reports, reports by the UN Secretary-General, the UN High Commissioner for Human Rights and Secretariat, available at:

http://www.ohchr.org/EN/countries/MENARegion/Pages/ILIndex.aspx

[3] ‘A Greater Israel? Faction says no to two-state solution, yes to annexing Palestinian areas’, The Washington Post, (6 November 2013), last accessed 3 December 2013.  Available at:

http://www.washingtonpost.com/world/middle_east/israeli-right-says-no-to-two-states-yes-to-greater-israel/2013/11/05/aa9068ee-454d-11e3-95a9-3f15b5618ba8_story.html

[4] ‘Taking annexation seriously’, The Times of Israel, available at: http://blogs.timesofisrael.com/taking-annexation-seriously/

[5] 'The Second Turkel Commission Report' The Institute for National Security Studies (13 February 2013), available at: http://www.inss.org.il/index.aspx?id=4538&articleid=2608.

'The Turkel Report: A Preliminary Analysis' Public Committee Against Torture in Israel (28 February 2013), availble at: http://www.stoptorture.org.il/en/node/1862

[6] Virginia Tilley, Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories, Pluto Press, 2012.

[7] Jus cogens – fundamental principles of international law, accepted by the international community of States, from which no derogation is ever permitted.