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    Israel High Court rullings about occupation

    Israel High Court rullings about occupation

    “14. The  Judea and  Samaria  areas are  held  by the  State  of Israel  in  belligerent occupation.  The long arm of the state in the area is the military commander.  He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p.  832).  His power is granted him by public international law regarding belligerent occupation.  The legal meaning of this view is twofold: first, Israeli law does not apply in these areas.  They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v.  The Knesset et al.  (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case).  In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations).  These regulations are a reflection of customary international law. The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention). The State of Israel has declared that it practices the humanitarian parts of this convention.  In light of that declaration on the part of the government of Israel, we see no need to reexamine the government's position.”, Israel High Court Ruling Docket H.C.J. 7957/04, Mara’abe v. The Prime Minister of Israel,  21 juni, 2005
    http://elyon1.court.gov.il/files_eng/04/570/079/a14/04079570.a14.pdf
     
    “27. We accept that the military commander cannot order the construction of the Separation Fence if his reasons are political. The Separation Fence cannot be motivated by a desire to “annex” territories to the state of Israel. The purpose of the Separation Fence cannot be to draw a political border. In Duikat, at 17, this Court discussed whether it is possible to seize land in order to build a Jewish civilian town, when the purpose of the building of the town is not the security needs and defense of the area (as it was in Ayoob), but rather based upon a Zionist perspective of settling the entire land of Israel. This question was answered by this Court in the negative.  The Vice-President of this Court, Justice Landau, quoted the Prime Minister (the late Mr. Menachem Begin), regarding the right of the Jewish people to settle in Judea and Samaria. In his judgment, Justice Landau stated:

    The view regarding the right of the Jewish people, expressed in these words, is built upon Zionist ideology.  However, the question before this Court is whether this ideology justifies the taking of the property of the individual in an area under control of the military administration. The answer to that depends upon the interpretation of article 52 of the Hague Regulations.  It is my opinion that the needs of the army mentioned in that article cannot include, by way of any reasonable interpretation, national security needs in broad meaning of the term.


    In the same spirit I wrote, in Jam’iyat Ascan, at 794, that

    The military commander is not permitted to take the national, economic, or social interests of his own country into account . . . even the needs of the army are the army’s military needs and not the national security interest in the broad meaning of the term.


    In Jam’iyat Ascan, we discussed whether the military commander is authorized to expand a road passing through the area. In this context I wrote, at 795:

    The military administration is not permitted to plan and execute a system of roads in an area held in belligerent occupation, if the objective is only to construct a ”service road” for his own country. The planning and execution of a system of roads in an occupied territory can be done for military reasons . . . the planning and execution of a system of roads can be done for reasons of the welfare of the local population.  This planning and execution cannot be done in order to serve the occupying country.”, Israel High Court Ruling Docket HCJ 2056/04, Beit Sourik Village Council v. The Government of Israel

    http://elyon1.court.gov.il/files_eng/04/560/020/a28/04020560.a28.pdf

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