Current Legal Trends in the Areas Administered by Israel

• Author: by Brigadier General BenZian Farhy
• Pages: 04

Military Advocate General Israel Defense Forces

On May 6, 1986, The Judge Advocate Genemlk School hod the honor of hosting Brigadier Geneml Ben.Zion Farhy, the Military Aduocote Geneml of the Ismel Defense Farces. Following is the text of the address presented by Ceneml Farhy to the TJAGSA Staff and Faculty and to students of the 34th Judge Aduocate Officer Grnduate Course.

1. INTRODUCTION

   The entertainer George Burns once told a clergyman that the Becret to a good sermon is to have a good opening and a good ending and to keep the two as cloae together as possible. I have always found that to be sound advice, 80 I will keep my remarks relatively brief.

   It is a particular pleasure tc be here in Charlottesville, an area which produced so many of the greatest thinkers and the greatest leaders in American history. Being here so near to the home of Mr. Jefferson, your third President, the principal drafter of the Declaration of Independ. ence, the founder and architect of the University of Virginia, and the author of the Virginia Statute of Religious Freedom, one cannot help be. ing overwhelmed by thoughts of liberty and a sense of the spirit and values of the American Revolution. In weighing these thoughts, I have been reinforced in my belief in the great importance of our profession-the lonely and often thankless job of the military advocate. To SUP vive in this world, liberty must be defended both from within and with. out. From within by the detenned preservation of the rule of law and from without by military forces willing and able to atand up to the threat posed by the forces of tyranny. In our double role as soldiers and military lawyers, we participate m the preservation of the rule of law and we help create B more disciplined military which will be better able to defend Western valuea from totalitanan aggression. In this, we nerve not only our profession but also our democratic heritage and we en.deavor m the words of your founding fathers "to ~eeure the blessings of liberty to ourselves and our posterity."

   11. THE MILITARY ADVOCATE AS INTERNATIONAL LAWYER

   In my talk today, I will dwell upon one particular task of the military advocate: the role of the military advocate 8% international lawyer, or

   more specifically. the role of the military advocate as legal advisor to the military government established in territories occupied in war. In discussing this I will be able to draw from the wealth of experience in this field which has been accumulated by the Israel Defense Forces in recent years.

   As you probably recall, the Israeli military administration of the Gaza District and West Bank (or Judea and Smaria Region), captured from Egypt and Jordan, respectively, in the Six Day War of 1967, is now near. ing the end of ita nineteenth year. During this period, the Israel Defense Forces have insisted that the military administration in these territories be governed by the rule of law and conducted in accordance with interne tianal law. The task of ensuring this has been entrusted to the Military Advocate General's Unit, which I command. The fact and length of the military administration in the Gaza District and Judea and Samaria have forced military advocates to deal with many situations and fields of law that normally would not fall within their wnt.

   The length ai the Israeli presence in the West Bank and Gam District has also raised various questions which are, or course, of interest to the student of international law, but which are also of immediate importance to the daily running of military government For example, the well known rule af customary international law, a8 laid out in Article 43 of the Hague Regulations appended to the Fourth Hague Convention in 1901 Respecting the Laws and Customs of War an Land. is that a mili. tary occupant '"shall take all measures in his power to restore, and insure as far a8 possible, public order and safety, while respecting unless abso. lutely prevented, the laws m force in the country.''

   That provision was conceived with a shart.term military occupation in mind To what extent does an extended occupation-nearly twenty years so far in our case-require or jurtify a liberal interpretation of the obli. gation to respect existing laws, particularly when rapid technolagcal advancement and economic development make existing laws obsolete and insufficient for the adequate reguiation of social and economic activity ~n a changing society? To what extent is it incumbent upon the military occupant to take cognizance of the evolving social and economic realities in order to better provide for the Safety and well.bemg of the local population?

3. JURISDICTION OF ISRAELI COURTSOne feature of military government umque to the Israeli experience has been the willingness of the Isaeli courts to hear petitions and actions filed by residents of the administered territories, including petitions against the military government. filed directly in the Israeli Supreme Court under its original jurisdiction as High Court of Justice to issue

   1986 AREAS ADMINISTERED BY ISRAEL

   writs of injunction. certiorari. quowarranto, and habeas corpus against any public body in Israel.

   In the first years of Israeli military administration of the West Bank and Gaza. these petitions were relatively few in number and the military commander, as respondent, agreed to acquiesce in the queation of an Is. raeli court's jurisdiction over a military government in a territory ad. ministered by military government and in the Iusticiability of the "acts of the state" of the military government outside the borders of the country The High Court began hearing these petitions based on theacquiescence of the respondents to the jurisdiction of the Court and the justiciability of the cases. Eventually, these petitions became regular features of Israeli jurisprudence and an important element in the preser. vation of the rule of law in the administered territories. Last year alone, more than one hundred petitions were submitted to the High Court re. garding the West Bank and the Gaza District; one of the major tasks of military advocates serving in the international law branch in the offices of the legal advisors of the administered territories is to assist in prepar. ing respondent pleadings and affidavits in these High Court cmes. The decisions of the Supreme Court, for their part, have served as valuable guidelines in interpreting the provisions of international law applicable to military occupation, particularly in the hard casea in which developing economic and technological realities have required the replacement of existing local laws with more updated legislation.

   I would add that the dynamics of thie situation have taken on a life of their own. Certain lawyers have become specialists in this type of law. petitions to the High Court have become an almost automatic form of due process in certain types of eases, and the High Court itself has re. marked in obiter dicta in various recent cases that it no longer views its jurisdiction in these as open to question.

   In regard to the substantive law applied by the High Court, it is necsssary to explain a couple of things. First, for various reasons of constitu. tional law, principally concerning the treaty ratification power (in Israel, treaties are ratified by the executive rather than the legislative branch), international treaties to which Israel is a party are not considered part of our internal law unless specifically incorporated into that law by an act of Parliament. A distinction must be made between customary interna. tional law which is deemed to be part of our internal law, even...