1. Introduction
Does Basic Law: Human Dignity and Freedom apply in any way in the West Bank? What can be the normative basis for such application and what are its consequences? The notion that the Basic Law applies in the West Bank emanates from the jurisprudence of the Israeli High Court of Justice (HCJ). It has been stated ex cathedra, without systematic analysis of the necessity of such application or its implications. Nor is practice consistent. In some cases the Court applies the Basic Law extraterritorially; in other cases it notes that there is no need to consider the matter of principle given the applicability of other legal regimes which, in the Court's view, respond to the needs which the Basic Law aims to address; and in other cases the Court applies the Basic Law rather than decide on the applicability of these alternative regimes on the ground that the Basic Law embodies the requirements of these regimes. The overall result is that the law regarding the extraterritorial applicability of the Basic Law is developing in a haphazard and incoherent manner.
The purpose of this article is to examine systematically the extraterritorial applicability of the Basic Law, and specifically in the West Bank, from the perspective of international law. The article considers three principal questions. First, does compliance with Israel's obligations under international human rights law necessitate, and is it enhanced by, the exterritorial application of the Basic Law? The article argues that in view of the similarity and partial overlap between constitutional law and other legal regimes, both under Israeli law (administrative law) and international law (human rights law), the contribution to the protection of human rights by the extraterritorial applicability of the Basic Law is minor at best. Second, the article examines three normative bases for applying the law extraterritorially: (i) territorially; (ii) on the basis of personal applicability to particular beneficiaries; and (iii) through applicability on the state as the duty-holder. Each of these options finds some expression in the Basic Law or in Israeli jurisprudence. However, as the practice review indicates, no coherent doctrine exists as to the trigger for application of the Basic Law or to its relationship with other regimes. Finally, the article examines the impact of the extraterritorial application of the Basic Law on Israel's compliance with the law of occupation.
2. Extraterritorial Applicability of the Basic Law – Lex Ferenda
This article's point of departure is the prevalent view in international law, according to which the responsibility of states under international human rights law extends beyond their sovereign territory, including to areas where they exercise effective control – that is, to occupied territory.Footnote 1 The exact scope of this responsibility is far from settled, as is the question whether the West Bank, specifically, is occupied territory. For present purposes, suffice to say that Israel itself has acknowledged the status of the West Bank as occupied territoryFootnote 2 and, more often, the applicability of the law of occupation to its own conduct in the territory. As long as Israel cites the law of occupation as the source of its authority in the West Bank, its acknowledgement of having effective control in the areas where this law applies creates a presumption of effective control also for the purpose of the applicability of international human rights law,Footnote 3 although this presumption is rebuttable.Footnote 4
Generally speaking, international law is indifferent to the manner in which the state regulates its compliance with its international legal commitments. Extraterritorial application of domestic law is not prohibited in itself, although under certain circumstances it may constitute a violation of particular norms. The law of occupation specifically also does not prohibit the extraterritorial application of domestic law to occupied territory, so long as such application does not constitute an attempt at unilateral annexation,Footnote 5 and does not infringe upon the obligations due to the local population.Footnote 6 But the absence of a blanket prohibition on extraterritorial application of domestic law does not imply, of course, that such application is necessary or justified. The question is whether in order to optimise the protection of human rights in accordance with Israel's obligations under international law, it is necessary or even helpful to interpret constitutional law embodied in Basic Law: Human Dignity and Freedom as applicable extraterritorially.
According to Israeli law, legislation must be interpreted to the extent possible in a manner which advances the protection of human rights. If human rights obligations extend to conduct in occupied territory, interpreting the Basic Law as applicable extraterritorially would appear to be a no-brainer. Nonetheless, it may be helpful to identify the rationales for the extraterritorial application of international human rights law, and examine their validity with respect to applying domestic law extraterritorially. Under international human rights law, as developed primarily in the jurisprudence of the committees monitoring the implementation of the UN conventions and of the European Court of Human Rights, the justification for the extraterritorial application of human rights law is that it would be unconscionable to permit a state to perpetrate human rights violations outside its territory which it could not perpetrate on its own territory.Footnote 7 A more general rationale is that power comes with responsibility: when a state has the capacity to respect rights in the sense of avoiding their violation, it must not be exempt from the obligation to exercise that power.Footnote 8 As for a state's obligation to protect individuals from violation of their rights by third parties, opinions differ. Some argue that, here too, responsibility follows power,Footnote 9 while others contend that the obligation of a state to take positive action should not extend extraterritorially, at least not with respect to the territory of another state which is directly responsible for discharging such protection.
The doctrine regarding the extraterritorial application of international human rights law was developed in bodies whose mandate was limited to that particular body of law. Their analytical point of departure was therefore that without the extraterritorial application of human rights law, states exercising control over individuals outside their territory would be operating in a legal vacuum. In contrast, Israeli law and judicial review in Israel permit recourse not only to constitutional law but also to numerous other legal regimes – domestic administrative law, the law of occupation and international human rights law. Accordingly, even without the extraterritorial applicability of constitutional law, state action does not take place in a legal vacuum. It follows that protection of human rights does not require the extraterritorial application of constitutional law, so long as there are other legal regimes available. Indeed, the HCJ itself has relied on the similarity between constitutional law and administrative law,Footnote 10 international human rights law and the law of occupation, to exempt itself from deciding on the extraterritorial applicability of constitutional law, suggesting that the other regimes constitute sufficient basis for analysis. In Marab, for example, the HCJ noted that ‘there is no need, in the context of this petition, to decide to what extent these principles [namely the constitutional right to liberty] apply to internal Israeli law regarding detention in the area’,Footnote 11 because ‘we are convinced that internal Israeli law corresponds to international law in this matter’.Footnote 12 In Beit Ichsa, too, the Court exempted itself from discussing the applicability of the Basic Law, noting that ‘in the present proceedings we need not address the applicability of basic constitutional rights under Israeli constitutional law, since, as will be clarified, the right to property with which we are concerned is normatively entrenched also in international law’.Footnote 13 Conversely, in Alram the Court applied the Basic Law rather than international law, on the ground that the constitutional standard is more demanding on the state.Footnote 14
The Court's premise in all these cases regarding similarity (and consequently interchangeability) of the various legal regimes merits close inspection. What follows is a comparison of the protection of human rights under Israeli constitutional and administrative law and jurisprudence, as well as of their protection under Israeli constitutional law and international law. This comparison addresses both substantive norms and the manner in which each body of law is implemented.
2.1 Constitutional Law v Administrative Law
Even before the enactment of the Basic Law, Israeli administrative law protected human rights, under the principles that a governmental authority may not restrict individual conduct unless specifically authorised under law,Footnote 15 and that any such authorisation must be interpreted in a manner which is favourable to human rights.Footnote 16 Arguably, then, administrative law can, to a large extent, replace the Basic Law, given the obligation on state authorities to comply with it in all their actions, whether within the state's territory or outside it.Footnote 17
The protection of human rights through administrative law suffers from two weaknesses. One weakness is that administrative law only governs executive action and cannot serve to scrutinise primary legislation.Footnote 18 A second weakness of reliance on administrative law to enforce human rights is that this body of law restricts state action but does not create positive obligations, for example, to protect from violation by third parties.
Neither weakness, however, is particularly significant with respect to the protection of human rights specifically in the West Bank. The absence of judicial scrutiny of primary legislation is of little relevance since interferences with human rights in the West Bank are the result principally of military orders, which constitute secondary legislation and are therefore subject to judicial scrutiny under administrative law. Reliance on the Basic Law may be useful in exceptional cases where primary legislation by the Israeli parliament does have effect in the West Bank.Footnote 19 If Basic Law: Human Dignity and Freedom is interpreted in light of international human rights law, it could serve as a means of reviewing primary legislation in light of what are essentially international legal norms.Footnote 20 The inability of administrative law to impose positive obligations may also be inconsequential for the enforcement of international human rights law in the West Bank, since it is debatable whether the latter imposes any positive obligations extraterritorially in the first place.Footnote 21 Thus, while reliance on the Basic Law is advantageous for the protection of human rights in comparison with administrative law as a matter of principle, the practical significance of this advantage with respect to the West Bank should not be overstated.
2.2 Constitutional Law v International Law
Another interchangeability proposed by the Court is between constitutional law on the one hand, and international human rights law and the law of occupation on the other. Although the Court often lists the latter two bodies of law together, there are important differences between them, in both content and place within the legal order. As in the case of administrative law, it is necessary to compare not only the substantive norms under each body of law, but also the relative strengths and limitations of each body of law in implementing the rights.
2.2.1 Substantive Law
The Basic Law and international human rights law share many substantive characteristics. They protect similar rights, although differences do exist. The right to property, for example, is guaranteed under the Basic Law (and under the law of occupation), but not under the universal human rights treaties.Footnote 22 Conversely, freedom of movement within the country is guaranteed under international law but not under the Basic Law.Footnote 23
The Basic Law and international human rights law employ the same balancing mechanism between rights and interests, namely a test of proportionality. The Basic Law is more permissive, with an open-ended category of interests that may justify limitations on rights, while under international human rights law limitations must in some cases fulfil specific enumerated goals if they are to be acceptable. For example, the right to property may be limited for any worthy cause under the Basic Law or in the public interest under international human rights law (where the latter recognises the right to propertyFootnote 24), provided that the limitation complies with other requisites (such as proportionality) in the limitation clause. The Basic Law and international human rights law thus share a legal paradigm, albeit in different normative spheres. Both, therefore, differ from the law of occupation, which rests on a different paradigm.
Unlike the human rights regime, which is essentially shaped for a relationship of shared interests between a state and its own citizenry, the law of occupation is premised on a relationship of hostility between the occupying power and the population under its control, and on power disparities which require special protection for that population. Accordingly, the permissible scope of action for the occupying power is in many respects narrower under the law of occupation than under human rights law.Footnote 25 This rationale has a number of manifestations.
First, Article 43 of the Hague Regulations provides that the criterion for assessing the military commander's conduct is ‘necessity’,Footnote 26 a term which also implies a balancing of conflicting interests.Footnote 27 But this balancing is much more limited than the human rights mechanism. ‘Necessity’ is limited to the parameters of Article 43 – military needs, and under the more prevalent, expansive interpretation, also the welfare of the population of protected persons. It does not automatically extend to all other interests perceived by the occupying power as worthy of pursuit. Second, the law of occupation also contains absolute prohibitions and exclusive grounds for limiting rights. For example, seizure or destruction of private property is only permitted for military purposesFootnote 28 or under local law.Footnote 29 Third, the law of occupation protects first and foremost the local population of ‘protected persons’. Other individuals, such as nationals of the occupying power, are entitled to the more limited set of rights, which apply to any individual caught in the theatre of conflict. As a consequence of these differences, the executive's freedom of action is wider under human rights law, whether international or domestic, than it is under the law of occupation.Footnote 30
To conclude, it appears that since the Basic Law is based on a human rights law paradigm, reliance on norms of international human rights law may achieve its goals, and can make the extraterritorial application of the Basic Law superfluous to the extent that human rights law can be implemented in court in the same manner as the Basic Law. This issue is the subject of the next section. Equally, perhaps, recourse to the Basic Law (extraterritorially) may render international human rights law redundant. The same cannot be said with respect to the law of occupation, which cannot be replaced by constitutional law.
2.2.2 Implementation
A further issue which is separate from the substantive similarity or difference between the norms is the force of each of the normative sources within the Israeli legal order. Israeli courts are accessible to appellants from the West Bank, and they frequently consider norms of international law, including human rights law. But international law is not as easily invocable in Israeli courts as is domestic law, including the Basic Law, for a number of reasons.
First, the applicability to the West Bank of certain international legal norms binding upon Israel is not beyond dispute. While the Hague Regulations are routinely applied as customary international law, the applicability de jure of the Fourth Geneva Convention has been contested, and consequently the Convention has not been applied routinely, although parts of it are applied de facto. The applicability of international human rights law to Israeli action in the West Bank has also not been definitively established. On the international front, the Israeli government maintains that international human rights law does not govern its conduct in the West Bank. One ground for this position is that human rights treaties do not apply outside a state's ‘territory and jurisdiction’.Footnote 31 Another ground cited by Israel is that even if human rights treaties do apply extraterritorially, they are superseded by the laws of armed conflictFootnote 32 (although, as noted, Israel also holds that the law of occupation as embodied in the Fourth Geneva Convention does not apply de jure in the West Bank). In addition, the Israeli government claims that in view of the transfer of powers and responsibilities under the Interim Agreement, it is the Palestinian Authority which is accountable with regard to the rights of the Palestinian population.Footnote 33 The HCJ, on the other hand, has acknowledged in a number of judgments that international human rights law may be utilised to fill lacunae in the law of occupation. In Marab, for example, the Court ruled that military orders allowing a 12- and 18-day detention without judicial review were illegal, mentioning, inter alia, ICCPR Article 9.Footnote 34 The Court did not address the question of the ICCPR's de jure applicability to the West Bank. Similarly, in Dir Samet, which concerned Palestinian movement within the West Bank, the Court cited Article 27 of the Fourth Geneva Convention and Hague Regulation 46 (neither of which explicitly mentions freedom of movement), as well as constitutional law and international human rights law.Footnote 35 In other words, the Court does not seem to share the view that responsibility under international human rights law is confined to sovereign territory or that it is entirely excluded by the laws of armed conflict.Footnote 36 At the same time, the HCJ has yet to rule directly on the applicability of human rights law in the West Bank, and its jurisprudence to date does not rely directly on such applicability.
Second, the human rights and occupation law treaties to which Israel is party have not been directly incorporated into domestic law. Under Israel's dualist system, treaty norms that are not customary law are not directly enforceable in Israeli courts; at most, they may be applied indirectly through the presumption of conformity, according to which Israeli law should be interpreted, to the extent possible, in compliance with the state's international obligations.Footnote 37 Norms grounded in customary law, whether human rights law or the law of occupation, do form part of the law of the land, but they too would yield to explicit, conflicting legislation.Footnote 38 Such legislation would take precedence even if at issue is the applicability of norms in occupied territory (an exceptional situation, as discussed below) when in conflict with the law of occupation.Footnote 39 In contrast, a right entrenched in constitutional law is directly enforceable in court, and if it is entrenched in the Basic Law, it enjoys a higher normative status than other norms emanating from domestic law.Footnote 40 In the event of a conflict between ordinary domestic legislation and a right protected by the Basic Law, the latter prevails. Courts are required to interpret ordinary domestic law in the spirit of the constitutional norm, and where such interpretation is impossible, they may be obligated to declare the legislation invalidFootnote 41 (subject to the preservation of laws under Article 10 of the Basic Law).
This analysis indicates that the advantage in reliance on the Basic Law might not be very significant since, as noted earlier, the limitations on rights in the West Bank (emanating from either international human rights law or the law of occupation) are not characteristically entrenched in primary legislation. Nonetheless, interpreting the Basic Law as applicable extraterritorially may, in rare cases, entrench Israel's international obligations and thereby enable their implementation. If so, interpreting the Basic Law as applicable extraterritorially may be not only a matter of policy but a legal obligation deriving from the presumption of conformity. There is no doubt that interpreting the Basic Law as applicable extraterritorially would modify – elevate – the place of the presumption of conformity in the Israeli legal order. First, the presumption was developed with respect to the interpretation of ordinary legislation, while here it is proposed to apply it to constitutional norms. Second, the presumption has so far served for the interpretation of substantive law, while here it concerns the outer reach of the legal system as such. These expansions of the presumption may present difficulties for the separation of powers.Footnote 42 Indeed, the presumption of conformity itself endows the executive branch with significant power to impact, indirectly, on Israeli law given that, under the Israeli constitutional order, it is the executive which is empowered to undertake international obligations on behalf of the state. The proposed expansion of the presumption ostensibly exacerbates this problem, because it allows the executive to encroach also on constitutional law. However, specifically in the context of human rights, the erosion of separation of powers might be less harmful because, generally speaking, human rights treaties limit the powers of the executive rather than expand them. Where the encroachment of international law into domestic law through the presumption of conformity results in additional constraints on the executive, as compared with the Basic Law, an executive acting in compliance with its international obligations will, by definition, also comply with the requirements of domestic law. Interpretation of the Basic Law in light of international human rights law might prevent the executive from exhausting powers that constitutional law allows it; but self-restraint on the part of the executive presents no difficulty (other than in the unlikely situation that constitutional law obligates the executive to take action which international law prohibits). Granted, difficulties would exist where international law creates positive obligations which do not exist under domestic constitutional law, such as an express obligation on the legislature to legislate.Footnote 43
2.3 Conclusion
The analysis above indicates that while the Basic Law and constitutional law in general are not identical to administrative law and international human rights law, they share similar characteristics which render them interchangeable to an extent. The Basic Law and the law of occupation, on the other hand, rest on different normative grounds, and cannot be used one in place of the other. The Basic Law does have a certain advantage over the bodies of international law in view of its normative status, but the practical significance of this is minor in the legal circumstances pertaining to the West Bank. To implement international human rights law, it might be sufficient that domestic legislation or executive powers be interpreted in light of the pertinent international obligations, as the presumption of conformity already dictates.
Against these reservations regarding the usefulness of interpreting the Basic Law as applicable extraterritorially, the following section considers whether extraterritorial applicability of the Basic Law is compatible with international law regarding the extraterritorial application of domestic law. The normative analysis will then serve as the backdrop for examining how the Basic Law is applied in practice, in terms of the basis for its extraterritorial applicability as well as of the compatibility of such applicability with substantive norms of international law applicable in the West Bank.
3. Extraterritorial Applicability of Basic Law: Human Dignity and Freedom – Lex Lata
3.1 Territorial Application
Extraterritorial application of domestic law on a territorial basis is, as a rule, a violation of the sovereignty of any state to whose territory domestic law is thus extended. In the case of occupied territory, extraterritorial application of domestic law may constitute an attempt at unilateral annexation of territory,Footnote 44 which international law prohibits.Footnote 45 These prohibitions apply to all state authorities, including the judiciary.Footnote 46 If local law must be amended in occupied territory, this can be done through orders of the military commander, and there is no need to apply the occupying power's legal system or specific norms thereof on a territorial basis.Footnote 47 Accordingly, the jurisprudence of the occupying power's courts which results in the applicability of the occupying power's norms in the occupied territory on such a basis – for example, interpreting Basic Law: Human Dignity and Freedom as applicable in the West Bank on a territorial basis – could constitute a violation of international law.
Israeli law is largely in line with international law, in that legislation is presumed to apply only territorially, unless its language or subject suggest otherwise.Footnote 48 This presumption excludes the applicability of Israeli law also with respect to occupied territory.Footnote 49 Thus, when the state opted to extend the application of its law beyond existing territory, it either declared the extension of Israeli territory (in the Jerusalem area),Footnote 50 or expressly declared the extension of its law to the territory in question (in the Golan Heights).Footnote 51
Israel has never purported to apply any of its law in the West Bank (or in the Gaza Strip) on a territorial basis. All changes to local law – those which duplicated Israeli law throughout the West Bank (such as with respect to transportation) or specifically in the relations among Israelis within the settlementsFootnote 52 – have been made through orders of the military commander in accordance with his authority under the law of occupation, and not through parliamentary legislation. The possibility of territorial applicability of the Basic Law in occupied territory has arisen in the jurisprudence of the HCJ, but has never been considered, let alone decided, directly.Footnote 53
At the same time, certain judicial statements do imply the applicability of the Basic Law in the occupied territories on a territorial basis. For example, El Amarin, one of the first cases in which the HCJ referred to the Basic Law in the context of the occupied territories, concerned the authority of the military commander to order the demolition of property in the Gaza Strip. Relying on local law – Regulation 119 of the Emergency Regulations, 1945 – Justice Cheshin contended, in a dissenting opinion, that the Regulation must be interpreted in the spirit of the Basic Law. He did not ignore the fact that at issue was the application of the Regulations outside Israel rather than within it, but said that ‘the difference is neither great nor significant. The link between Israel and the Gaza Strip – and similarly in Judea and Samaria – is so tight in daily life that it would be artificial to speak of exercise of powers in Gaza as if it were overseas’.Footnote 54 Although Justice Cheshin was in a minority regarding the interpretation of Regulation 119, the difference of opinion between him and the majority, in this case and in subsequent ones,Footnote 55 did not revolve around whether the Basic Law governed the decisions of the military commander to demolish houses in occupied territory.Footnote 56 Justice Cheshin did not directly address the manner in which the Basic Law would apply, but the use of the Basic Law to review actions authorised under local law applicable on a territorial basis implies that the standard for review also functions on a territorial basis. Most importantly, the reference to the proximity to Israel reflected an assumption that the application of the Basic Law was a territorial matter.
Finally – but significantly – while territoriality has not served as a stand-alone basis for applying the Basic Law in the West Bank (at least not openly), it has formed a component of the single basis on which the HCJ has expressly applied the Basic Law in the West Bank, namely ad personam. This basis is explored in the next section.
3.2 Personal Application – on Particular Beneficiaries
In Gaza Coast Regional Council the HCJ ruledFootnote 57 that
the Basic Law provides rights to every Israeli settler in the evacuated area. This application is personal. It derives from Israel's control over the evacuated area. It reflects the perception that Israelis situated outside the state but in territory under its control by way of belligerent occupation are governed by the state's Basic Laws regarding human rights.
In this case the Court applied Basic Law: Human Dignity and Freedom outside Israel's territory by defining its beneficiaries. This case did not concern the rights of Palestinians under the Basic Law, and accordingly by itself it cannot serve as an authority for the applicability or non-applicability of the Basic Law to them. However, in Mara'abe the HCJ added elements – and perhaps an explanation – to the applicability of the Basic Law to Israelis, which does bear on its applicability to Palestinians. First, the Court notedFootnote 58 that
the constitutional rights which our Basic Laws and our common law grant to every person in Israel are also granted to Israelis who are located in territory under belligerent occupation which is under Israeli control … Israelis present in the area have the right to life, dignity and honor, property, privacy and the rest of the rights which anyone present in Israel enjoys.
In other words, the basis for applying constitutional law is not only the identity of the beneficiaries and their residence within territory over which Israel has effective control, but also the need to apply a uniform legal regime to residents of the settlements and to residents of Israel. Second, the Court relied on the state's commitment to the welfare of its citizens, especially ‘when many of the Israelis living in the area do so with the encouragement and blessing of the government of Israel’.Footnote 59 These two rationales negate the possibility that Palestinians count among the beneficiaries of the Basic Law.
The applicability of the Basic Law exclusively to Israelis follows not only from the Court's reasoning, but also from the absence of any mention of the Basic Law in statements on the normative framework that does apply to Palestinians. Unlike Gaza Coast Regional Council, in Mara'abe the Court could not avoid identifying the normative source for the rights of the Palestinian residents of the West Bank. According to the Court, ‘it is unanimously agreed that international humanitarian law is the central source of these rights’,Footnote 60 and it is possible that international human rights treaties are also applicable.Footnote 61 The Court made no mention of constitutional law in this context. In an obiter dictum, the Court suggested that ‘with regard to “protected inhabitants”, international human rights law replaces Israeli internal law’.Footnote 62 This statement follows a number of judgments in which the Court ruled that ‘it is possible, at times, to complement the humanitarian provisions by international human rights law’.Footnote 63
Both the extension of the Basic Law's applicability extraterritorially and the restriction of this extension to Israeli nationals are exceptional in Israeli law. There are, indeed, certain legislative instruments which apply to Israelis on a personal basis also when present outside Israel. For example, under the Penal Law, Israeli nationals and residents may be indicted for certain offences committed outside the country.Footnote 64 Enforcement of the prohibitions will only take place in Israel, of course. In addition, residents of the settlements who are Israeli nationals (or have a right to be so by virtue of their Jewish ethnicity) are regarded as Israeli residents for the purpose of the application of a series of laws.Footnote 65 Basic Law: Human Dignity and Freedom does not count among those laws. The effect of the presumption of residence is that Israeli nationals acquire rights and obligations in Israel; the laws in question have no effect on governmental conduct outside Israel, as would be the case if the Basic Law is interpreted as applicable extraterritorially.
Moreover, if the Basic Law is applicable extraterritorially, the basis for limiting its applicability to Israeli nationals remains elusive. The text of the Basic Law certainly does not justify such a limitation as a general proposition. Throughout the Basic Law the beneficiary of rights is a ‘person’, and the rights enumerated in the Basic Law are premised on ‘recognition of the value of a person’ (section 1). Section 2 adds that there shall be no violation of the life, body or dignity ‘of any person as such’.Footnote 66 This terminology cannot be read other than as applying also to non-nationals. Where the legislature did exceptionally opt to restrict a right to nationals, the Basic Law provides so expressly, namely in section 6(b) concerning the right to enter Israel. A contrario, other provisions apply to all persons. Moreover, the HCJ has ruled (in another judgment relating to the disengagement from the Gaza Strip) that a ‘person’ under the Basic Law also extends to corporations (registered in Israel).Footnote 67 Applying the Basic Law to abstract legal persons as ‘persons’ but not to all natural persons would be awkward, to say the least.
This is not to say that there may not be legitimate distinctions under constitutional law between nationals and non-nationals. Constitutional law is a means of regulating the political organisation of a social group; nationality indicates affiliation with the group, creating a more significant relationship between the individual and the group's mechanisms of governance than the relationship with a foreigner coming into contact with the group. But a nationality-based distinction can only be justified with respect to rights that concern affiliation with the group and its organisation, such as entry into the group's physical or social domain, or participation in the establishment of governance mechanisms. Indeed, a distinction between nationals and non-nationals is common with respect to immigration and the right to elect and be elected to government. Yet, with the exception of entry into the country, the Basic Law addresses not these but rather rights that are perceived as universal – namely applying to every individual everywhere, inhering in humanity, and therefore not conditional upon a person's identity or status.Footnote 68 Granted, in order to be effective, a human rights regime must circumscribe the obligations of states so as to enable them to discharge their obligations.Footnote 69 Accordingly, international law does not hold states responsible towards any person anywhere, but only towards persons under their effective control, sovereignty being a primary indicator of such control. However, there is no justification for the identity of the individual to dictate the existence of an obligation or its extent. For example, the ability of a state to respect a person's right to life does not depend on whether the person is its national or not. Accordingly there is no justification for limiting the right to life so that it accrues only to nationals (whether situated within sovereign territory or outside it). Indeed, international human rights law does not generally distinguish between nationals and non-nationals (although such a distinction exists in the constitutional law of certain states with respect to extraterritorial applicabilityFootnote 70).
A distinction on the basis of nationality creates a presumption of prohibited discrimination,Footnote 71 which may be rebutted in a limited context – principally, as stated above, that of election and immigration.Footnote 72 The presumption is clearly valid with respect to civil and political rights, which find expression primarily in a duty to abstain from action, and therefore fundamentally do not require allocation of resources. With respect to economic, social and cultural rights, which require the determination of budgetary priorities, there may be scope for distinguishing among individuals with respect to their entitlement to rights according to the degree of their affiliation to the political community, for example, by nationality and residence. Nonetheless, even these rights feature a core which is applicable to any person, regardless of formal status.Footnote 73
In practice, there is an undeniable difference between the rhetoric of the Court and its actual practice. The Court announces that different legal regimes apply to different populations, but refrains from following the consequences of these statements to their logical end. It therefore has not yet directly addressed the implications of the distinction on a personal basis. In Mar'abe, for example, the Court relied on the constitutional right of Israelis (exclusively) only for the purpose of deciding on the military commander's authority to erect the separation barrier.Footnote 74 When discussing the manner in which the commander exercised this authority, the Court did not invoke constitutional rights of either of the parties involved, but only examined the balance between state security and the rights of Palestinians under international humanitarian law, applying that law to all parties involved.
In Alram the appellants comprised Israeli nationals, non-national Palestinian permanent residents and residents of the West Bank. The appeal concerned various segments of the separation barrier in the Jerusalem area, some of which pass through territory regarded under Israeli law as Israeli, and some of which pass through West Bank territory. Accordingly, the appeal concerned populations subject to different legal regimes.Footnote 75 In determining the normative framework for examining the route of the barrier in the West Bank, the HCJ described the obligation of the military commander toward protected persons as governed by ‘the human rights accepted under international law which accrue to each member of the local population’,Footnote 76 and his obligation towards Israelis residing in the West Bank as governed by international law and Israeli law, ‘primarily the Basic Laws relating to human rights’.Footnote 77 In determining the normative framework for examining the route of the barrier within Israeli territory, the HCJ noted the need to take into account ‘human rights entrenched in Israeli law of Israelis residing in Israel and in the West Bank, who are affected by the barrier's route’,Footnote 78 and separately, ‘the welfare of “protected persons” residing in the area’.Footnote 79 In other words, with respect to both routes, the HCJ distinguished Israelis, who enjoy the protection of the Basic Law within Israel and in the West Bank, from Palestinians resident in the West Bank, who do not.Footnote 80 Ultimately, however, the HCJ stated that, although the normative systems applicable to Israeli and Palestinian residents were different, it would not make any normative distinctions among the populations, since the basic principles of international law and of Israeli law are similar as well as the manner of balancing conflicting interests, and the parties themselves had not argued for any distinctions. It therefore examined the military commander's decision on the route of the barrier in its different segments, ‘under strict standards, such as those applicable under the Basic Law’.Footnote 81
Naturally, if the HCJ had tried to apply different normative regimes according to the appellants' identity, it would have encountered a practical difficulty, since residents of Israel (who are protected by the Basic Law) and residents of the West Bank who are protected persons (who are not) were on the same side of the barrier – and of the legal dispute. The Court would have had to examine the route of a particular segment of the barrier under Israeli constitutional law with respect to some appellants, and under the law of occupation with respect to others. But in practice it would have been impossible to apply different regimes. At the end of the day, arrangements on the ground would have been in line with the stricter standard (which the Court determined to be the constitutional one), and both populations would have benefited from it.
It should be noted that insofar as Israeli territory is concerned, there is no dispute regarding the applicability of the Basic Law, irrespective of the identity of beneficiaries or the applicability of other bodies of law. Salameh, for example, was a joint petition by persons residing within Israel: Palestinian permanent residents of Jerusalem and Palestinians from the West Bank. The petition concerned the route of the barrier within the municipal boundaries of Jerusalem. The HCJ statedFootnote 82 that
powers which infringe upon basic constitutional rights will be exercised in accordance with the criteria provided in the limitation clause of the Basic Laws relating to human rights … where the route of the barrier pertains to residents of the West Bank, even if the route does not pass through the West Bank, the respondents must also take into account the needs and interests of the population in the area, whether under international human rights law or under international humanitarian law applicable to residents of the territory under belligerent occupation.
In other words, both Israelis and Palestinians of the West Bank residing within Israel enjoy the protection of the Basic Law. West Bank Palestinians benefit also from the protection of international human rights law (without any clarification why Israelis do not) and of the law of occupation, which indeed does not recognise Israeli nationals as protected persons.
In conclusion, the only case law which directly addresses the possibility of extraterritorial applicability of the Basic Law relies on the identity of the beneficiaries on the basis of a limited rationale that is valid for Israeli nationals or residents only. This distinction is suspect under international law. The practice of the HCJ, however, does not pursue this distinction, and when Israelis are involved in a case the Court applies the Basic Law, including with respect to Palestinians and regardless of whether the interests of Israelis and Palestinians are shared or in conflict.
3.3 Applicability of the Basic Law on the State as Duty-Holder
A third basis for applying the law outside sovereign territory is by imposing the obligations it creates on state organs, regardless of where they act and who the beneficiaries are. Prima facie, the distinction between the individual's right and the state's obligation is semantic, given that every obligation has a corresponding right and vice versa. But defining the legal regime as duty-holder-dependent rather than as beneficiary-dependent clarifies that the responsibility of the state is unrelated to the individual's identity.Footnote 83
This interpretation is in line with the language of the Basic Law. According to section 11, ‘[a]ll governmental authorities are bound to respect the rights under this Basic Law’. The Basic Law thus stipulates its applicability by reference to the governmental authorities as its addressees and as the direct duty-holders.Footnote 84 According to this view, a duty under the Basic Law emanates from the exercise of power by organs of the state. This approach is also in line with the prevailing doctrine under international law, according to which the realisation of human rights is expressed in the imposition of obligations on the state, and responsibility under human rights law follows the exercise by the state of power and authority. Support for this approach may be found by analogy in former Chief Justice Barak's interpretation of the term ‘authority’ in section 11. According to this interpretation, ‘an authority of the governmental authorities is any body or person who holds the (governmental) power to change a person's status without that person's consent’.Footnote 85
A teleological interpretation of section 11 might also lead to the conclusion that this provision stipulates an extraterritorial applicability of the Basic Law; otherwise it is redundant. Clearly, section 11 is not needed merely to confirm the applicability of the Basic Law to the branches of government since the executive and the judiciary are already bound by administrative law, while the legislature's subjection to the Basic Law is inherent in the limitation clause, which prescribes the parameters for limiting rights by law. Nonetheless, extraterritorial applicability may not be the only valid teleological interpretation of section 11. For example, this section might clarify that the law only governs the conduct of public authorities rather than of private entities. In such case, extraterritorial applicability of the Basic Law is not an unavoidable conclusion.
The extraterritorial applicability of the Basic Law on the basis of the state's obligation was suggested in obiter dictum in Adalah. Chief Justice Barak proposed that the Basic Law accompanies the governmental authorities rather than the beneficiaries, and accordingly ‘wherever the official goes, the Basic Law goes with him’.Footnote 86 Nonetheless, according to Barak, ‘this approach is particularly appropriate when the act of the official is done in a place that is subject to Israeli belligerent occupation’,Footnote 87 again linking applicability to territorial control. A hint that the Basic Law applies to the state may also be inferred from earlier jurisprudence. For example, in Marab the Court noted that ‘[t]here is no need, in the context of this petition, to decide to what extent these principles of internal Israeli law [namely the constitutional right to liberty] apply detention performed in the area [of the West Bank]’.Footnote 88 This drafting links the potential applicability of the law to the act of the executive authority, rather than to the identity of the detained or to the territory itself. The terminology focusing on the obligation of the authorities is also evident in other judgments. Furthermore, linking the applicability of the law to the acts of the executive is also implied from the presumption that the Basic Law can be replaced by administrative law, which also applies to the executive. Thus, Center for the Defense of the Individual concerned the conditions of incarceration in detention centres in the West Bank. The HCJ ruledFootnote 89 that
[t]he question of whether or not the Basic Law: Human Dignity and Freedom applies to detention conditions in the area need not be answered here. The general principles of administrative law, which apply to Israeli soldiers in the area, are sufficient for this matter … How could we consider ourselves civilised if we did not guarantee civilised standards to those in our custody? Such is the duty of the commander of the area under international law, and such is his duty under our administrative law. Such is the duty of the Israeli government, in accord with its fundamental character: Jewish, democratic and humane.
Since administrative law serves to review the conduct of the authorities (everywhere and with respect to every person), substituting it for constitutional law, similarly to the focus on ‘the duty of the Israeli government’, may indicate that the Court viewed the applicability of the Basic Law as pertaining to the authorities. At the same time, however, it underscores the sufficiency of the existing legal order to guarantee the protection of human rights in the West Bank.
The Public Committee against Torture case also suggests acknowledgement of the Basic Law's extraterritorial applicability based on the authorities' obligations. This is particularly evident in the opinion of Justice Rivlin, noting that in armed conflict two normative systems apply simultaneously which place human dignity at their centre – the laws of armed conflict and Israeli public law. According to Justice Rivlin, the value of human dignity implies ‘particular obligations’, an expression which implies the applicability of the Basic Law and the rights expressly enumerated therein, which together with other rights reflect the notion of human dignity. The reference to armed conflict as a basis for applying Israeli public law again implies a link between the application of the law and the conduct of the governmental authority, regardless of the territory in which it applies or its beneficiaries. If there was doubt as to the applicability of the Basic Law to all those subject to the authorities' power, Justice Rivlin removed it by noting that a relevant principle for the maintenance of human dignity is universality.Footnote 90 Perceiving the Basic Law as applicable extraterritorially on the basis of the authorities' obligations is also in line with the interpretation of other Basic Laws which empower the authorities to act outside state territory.Footnote 91
Prima facie, there is nothing novel about state organs being bound by Israeli law in their acts in the West Bank. Military law and administrative law, for example, also regulate such conduct. But the Basic Law holds special power: unlike legislation which regulates the internal mechanisms of government, the Basic Law regulates the relations between the state and individuals. Unlike administrative law, the Basic Law not only enforces existing law, but creates substantive rights or imposes substantive obligations.Footnote 92 In practice then, the application of the Basic Law to state action outside sovereign territory modifies the legal regime applicable to the population under the state's control. So long as this modification applies to the entire population and is necessarily of temporary duration – in other words, only for as long as the territory is under occupation – it might not be prohibited per se, since it is not tantamount to an extraterritorial application of the law on a territorial basis. For one thing, the Basic Law does not become the law of the land in the occupied territory. At the end of the occupation, for example, frequently adopted transitional provisions, such as continuity in the applicability of the law of the land, would not govern the Basic Law. Secondly, if the extraterritorial applicability of the Basic Law concerns only the obligations of state organs, other provisions of the law would be irrelevant, or would be interpreted differently than they are with respect to territory where the law applies territorially. For example, even if the Basic Law imposes obligations also on individuals, as advocated by former Chief Justice Barak,Footnote 93 these additional obligations would not necessarily extend beyond state territory. Other provisions that may be interpreted differently are the limitation clause in section 8, which refers to limitation by or according to ‘law’, and section 10, on the preservation of validity of ‘any law (din) in force prior to the commencement of the Basic Law’.
If the Basic Law applies in the West Bank only on the basis of the obligations of state organs, the term ‘law’ should probably be interpreted as relating only to Israeli law. If the Basic Law applies on a territorial basis, local law might also be pertinent. Interestingly, however, the HCJ has already been willing to regard Jordanian law, identical to Israeli law in content and in historical origin, as ‘law’ for the purpose of section 10. Nazal concerned the military commander's order to demolish a structure in the Gaza Strip, invoking local law – Regulation 119 of the Mandatory Emergency Regulations, 1945. Following its ruling in El Amarin, the Court examined the military commander's discretion under the Basic Law. In response to the appellants' claim that the exercise of authority under Regulation 119 was contrary to Basic Law: Human Dignity and Freedom, the majority opined that ‘the Regulations constitute law [din] in force prior to the commencement of the Basic Law, and the provision of section 10 of the Basic Law regarding preservation of law [dinim], maintains them intact’.Footnote 94 The notion that a right protected by an Israeli Basic Law may be limited by foreign law is odd. Foreign law does not enjoy the legitimacy of parliamentary legislation, which is deemed to reflect the collective view as to the appropriate balance between conflicting rights and interests. Yet it was easy to overlook the fact that the limitation on the right under the Basic Law was grounded in foreign law since, as stated by Judge Cheshin earlier, this foreign law was not only identical in content to Israeli law and historically emanating from the same source (mandatory legislation), but was also applied in the same security context, with the geographical distinction between Israel and the West Bank or Gaza Strip being of secondary significance.Footnote 95 The reference to local law under section 10 does fit well with the earlier analysis,Footnote 96 according to which the application of the Basic Law already contained an undertone of application on a territorial basis.
In conclusion, of the various means of extending Basic Law: Human Dignity and Freedom with respect to the West Bank, interpreting it as imposing obligations on state organs appears to be the only legal construct compatible with the language of the Basic Law and with international law. This possibility had found express and implicit expression in the HCJ's jurisprudence. But this basis is so akin to administrative law that the benefit of applying the Basic Law extraterritorially becomes altogether questionable.
4. Practice
The practice of the Court is far from lucid with respect to the normative basis for applying the Basic Law: Human Dignity and Freedom and to the relationship between the Basic Law and other regimes. The landmark case in this context is Hess, which concerned the military commander's authority to seize private Palestinian property in order to secure the route of Israeli worshippers from Kiryat Arba to the Cave of the Patriarchs. According to the HCJ, at issue was the relationship between the rights of worshippers to movement and worship, and the right to property over the land referred to in the order of seizure.Footnote 97 The HCJ noted that the constitutional rights to freedom of religion and worship, as well as of movement, applied to both the Palestinian and the Israeli residents of the West Bank.Footnote 98 Although the judgment refers to the right to worship and the right to property as ‘constitutional’, it is difficult to state categorically that the HCJ grounded these rights in the Basic Law: Human Dignity and Freedom, or even in Israeli constitutional law in general. When describing the normative framework generally governing the military commander's authority (rather than specific rights), the HCJ listed, in addition to the law of occupation and local law, the ‘principles of Israeli law’, which included, ‘inter alia, the principles of [Israeli] public law, including the principles of natural justice and administrative reasonableness’Footnote 99 – but not constitutional law.Footnote 100
There are other indications that the term ‘constitutional rights’ refers to the substantive character of the rights rather than to their normative source. For example, the HCJ noted that ‘alongside the rules of international law, domestic Israeli laws applicable to the military commander are binding’, which suggests that the previous mention of ‘constitutionality’ pertained only to norms of international law.Footnote 101 However, the Court's analysis of specific rights does rest on constitutional law. With respect to freedom of religion, the Court was explicit that it is a ‘constitutional basic right’, recognised by the King's Order-in-Council, in Israel's Declaration of Independence and in Israeli constitutional jurisprudence.Footnote 102 Notably, the protection of freedom of religion under constitutional law pertained only to Israelis. The HCJ referred to constitutional law also with respect to Palestinians' right to property and with respect to freedom of movement, although it is unclear from the judgment whether at issue was the freedom of Israelis, Palestinians or both. The Court listed the right to property as a right under the law of occupation, but noted that it was also constitutionally protected under the Basic Law.Footnote 103
Finally, when examining whether the military commander was allowed to place restrictions on the right to property of Palestinians in order to protect freedom of worship, the HCJ stated that the question was ‘whether the means of restricting private property for the purpose of achieving a worthy cause complied with the constitutional proportionality test’.Footnote 104 The Court thus utilised the constitutional proportionality test rather than the test under the law of occupation (which permits seizure of private property only for military purposes). The Court noted that it was implementing the ‘spirit of the principles of the limitation clause [under Basic Law: Human Dignity and Freedom]’ but not the limitation clause itself; it is not clear whether the limitation clause did not apply directly. One possibility is that the Court implemented the Basic Law but the conflicting rights were both protected by the Basic Law, in which case the limitation clause does not formally apply. The other possibility is that the Court applied the law of occupation, with the limitation clause applying only by analogy.Footnote 105
Despite the ambiguities in Hess relating to the normative sources of the enumerated rights, later jurisprudence regarded the judgment as an authority for the applicability of the Basic Law with respect to the West Bank. In Bethlehem Municipality, again the authority of the military commander to seize property in order to secure access for Israeli worshippers to a place of worship (Tomb of Rachel) was at issue. The HCJ again analysed the situation as a matter of balancing between the right to worship and the right to property and freedom of movement of the landowners.Footnote 106 The Court grounded freedom of worship as it had in Hess, and added other sources, including freedom of worship as an aspect of human dignity protected under Israeli legislation.Footnote 107 With respect to freedom of movement, and in Bethlehem Municipality it was clear that at issue was the movement of Palestinians, the HCJ statedFootnote 108 that
it is one of the basic human rights and it has been recognized in our law both as an independent basic right … and as a right that is derived from the right to liberty … In addition, there are some authorities who believe that this freedom is derived also from human dignity.
The authorities for freedom of movement are also taken from jurisprudence relating to the freedom within Israel. Evidently the Court grounded the freedom of movement of Palestinians within the West Bank in Israeli constitutional law. As for the right of Palestinians to property, this was grounded in the Basic Law and in the law of occupation.Footnote 109 This confusion regarding the rights protected by the ruling and their normative source has been carried over to later judgments.Footnote 110
Reference to the Basic Law as a standard for review was also made in Abu Dahr, which concerned the authority of the military to fell trees on private land in the West Bank in order to provide protection for the residence of a government minister (residing within Israel). The HCJ analysed the situation in terms of the balance between the minister's constitutional right to protection of security of life and bodily integrityFootnote 111 (and to this added the minister's right to effectuate the right to property ‘in conditions of protection of life and bodily integrity’Footnote 112) which is ‘a constitutional right according to Israeli public law, as provided in Article 4 of Basic Law: Human Dignity and Freedom’, and ‘the right to property of residents of the West Bank, which is also recognised as a protected constitutional basic right. It is recognised as such under Article 3 of Basic Law: Human Dignity and Freedom’.Footnote 113
There is no doubt that the Basic Law obligates the state to protect the rights of the minister, who resides within Israel. Less obvious is the Court's application of the Basic Law as a standard for review of the military commander's conduct with respect to Palestinians in the West Bank. It is in fact a novel approach, given that for many decades the judicial review over seizure of Palestinian property in order to protect military needs was conducted by reference to Article 43 of the Hague Regulations. Abu Dahr added the rights discourse to buttress the military interest. This may have been related to the fact that at issue was a well known individual, and it was therefore convenient to frame the conflict as pertaining to an individual right rather than to a public security interest. In any case, for present purposes it is significant that the right to property of the Palestinian tree owner, resident in the West Bank, was framed in terms of the Basic Law.
In Murar the HCJ considered the authority of the military commander to declare the closure of a certain area within the West Bank as a means of ensuring both the security of Israelis (from terrorism) and the security of Palestinians (from settler violence).Footnote 114 Among the considerations of the commander, the Court cited the right to security and protection of bodily integrity – of both Israelis and Palestinians – under international humanitarian law as well as under the Basic Law. It thus cited the Basic Law also as the basis for the rights of Palestinians to property and freedom of movement.Footnote 115
In disputes before the HCJ in which Israelis are not involved, the Court has relied on constitutional law only in rare cases. One such case is Barghuti, which concerned the rights of family members to enter Israel in order to visit a Palestinian prisoner held in a prison within Israel. The Court stated, citing Hess, that the military commander must act, inter alia, to provide ‘adequate protection to constitutional rights, within the limits that the conditions and factual circumstances on the ground permit’.Footnote 116 The application of constitutional law to the family members may have been related to the fact that the judgment also referred to the prisoner's right to personal liberty, a right which is clearly protected by the Basic Law, given that the prisoner was incarcerated within Israel.Footnote 117
The HCJ's reluctance to apply the Basic Law directly to Palestinians is also evident in Adalah. This case concerned the constitutionality of an amendment to the provision in the Civil Torts Law (Liability of the State), 1952, which created a blanket obstruction for Palestinians resident in the West Bank or Gaza Strip to file tort claims following actions by security forces in the occupied territories. Unlike Barghuti, for example, which concerned the rights of specific, identifiable appellants (family members of a particular Palestinian prisoner in Israel), Adalah concerned a large number of Palestinians whose link to Israel consisted of living in territory under the state's control and being affected by its conduct. A determination that the Basic Law applied to them with respect to the issue before the Court, even if on a personal rather than territorial basis, would have had far-reaching consequences, as it could have easily been interpreted as the application of the Basic Law to all Palestinians resident in the West Bank in many other respects.
The Court, presided by Chief Justice Barak, avoided a decision on the applicability of the Basic Law to Palestinians in the West Bank by reframing the question before it as a matter of the Basic Law's applicability within Israel. The Court ruled that the amendment to the Civil Torts Law (Liability of the State) constituted a limitation on rights within Israel rather than in the West Bank, since it constituted a hindrance to the right to bring forward claims, in accordance with the rules of private international law, in Israeli courts and under Israeli tort law.Footnote 118 The Court characterised the state's exemption from tortious liability as a limitation on the right to property, since compensation for tort constitutes a component of that rightFootnote 119 as well as a limitation on the rights to life, liberty, dignity and privacy, which tortious liability protects.Footnote 120 However, this reasoning is problematic, since, as noted by Judge Gronis in an individual opinion, it is not self-evident that Israeli courts are the forum conveniens for the potential claims, and therefore it does not follow that preventing such claims from being put forward is an interference of a right within Israel. It is also not self-evident that Israeli tort law would apply, or, moreover, that there is a right to the applicability of a specific legal system, in which case again the non-applicability of Israeli law would not constitute an interference with any right.
Moreover, even if Israeli law governs the potential claims, it is unacceptable that the Basic Law would necessarily apply to any legal proceedings conducted in Israel in accordance with Israeli law.Footnote 121 If it had been posited that the right of access to justice in Israel had been violated, it would have been pertinent to consider the implications of the Basic Law for this right. But it seems that Chief Justice Barak was referring not to the right of access to justice as a first right order, but to the right to a legal remedy as a means of realising the specific rights he enumerated. The right to a legal remedy, unlike the right of access to justice, is not necessarily an independent right. In international law, both universal and European, the former right is contingent upon the existence of a violation of a first right order. Without a violation of a substantive right, there is no right to a remedy.Footnote 122 Accordingly, whatever the applicable tort law, in order to determine that the absence of tortious liability constitutes a violation of a basic right protected under the Basic Law, there is no alternative to determining whether the life, liberty, dignity and privacy of Palestinians injured by the conduct of security forces in the West Bank are rights protected under the Basic Law. The skirting of this issue is not wholly convincing.
What emerges from these and other judgmentsFootnote 123 is that whenever the interests of Israelis are directly involved, the HCJ applies the Basic Law, in which case it also applies it to Palestinians. When the dispute directly involves only the interests of Palestinians in the West Bank, the Court relies on other bodies of law, primarily the law of occupation. This practice raises no problem of inequality before the law, but the normative basis for the application of the Basic Law becomes blurred even further.
As for determining which body prevails when both the Basic Law and international law apply, in most cases the Court emphasises that the rights at issue are entrenched not only in Israeli constitutional law but also in international human rights law or in the law of occupation (or in both), thus ostensibly circumventing the issue. Moreover, in view of the Court's use of the constitutional test for balancing rights and interests also within the law of occupation, it is often difficult to identify the exact normative framework it employs, and it is not always clear whether its decisions are underpinned by constitutional law or by the law of occupation.
5. Extraterritorial Applicability of the Basic Law and the Law of Occupation
The standard for identifying a need to modify local law under Article 43 of the Hague Regulations or Article 64 of Geneva Convention IV consists of the law of occupation and customary international human rights law. If local law is incompatible with the customary international legal standard, the occupying power may – indeed, mustFootnote 124 – modify local law, to put it in line with that standard.Footnote 125 The occupying power's domestic law is not, in itself, relevant to the issue.Footnote 126 The question arises whether there is any impediment to the occupant applying its domestic constitutional law in addition to the international regimes, provided that it does so by imposing on itself extraterritorial obligations.
Prima facie, it would be unreasonable to prohibit the occupying power from enabling the residents of the occupied territory to enjoy and enforce a higher standard of protection than is provided by the law which applies territorially. It has nonetheless been argued that applying a standard other than customary international law on a population which did not choose that standard constitutes ‘legal imperialism’.Footnote 127 A more profound difficulty is that where the application of a regime (constitutional law) sets a new standard, it necessarily interferes with rights and obligations under existing regimes. Thus, the purportedly additional protection offered to some individuals by application of the Basic Law may conflict with rights and interests of individuals that are protected by other applicable regimes, such as the law of occupation. In Gaza Coast Regional Council the Court did not face this problem since the case concerned the relations only between Israeli settlers and the Israeli government, and applying to them the standard of Basic Law: Human Dignity and Freedom did not implicate other legal regimes. In contrast, applying the Basic Law in cases such as Hess and Bethlehem Municipality does raise the question of the relationship between the Basic Law (and constitutional law and human rights more generally) and the law of occupation.
One aspect of this relationship has already been demonstrated with respect to Hess, namely the endowment of Israelis with rights to which they are not entitled under the law of occupation. The use of a human rights paradigm and specifically the Basic Law to Israelis (regardless of whether it is applied also to Palestinians) dilutes the protection under the law of occupation. Israeli nationals are not protected persons under the law of occupation, and they are not entitled to the protections reserved to such protected persons. Use of the Basic Law, however, obfuscates this difference between the two populations. Moreover, human rights discourse, embodied in the Basic Law, is premised on equality between the populations whose interests and rights must be balanced, contrary to the premise of power disparities underpinning the law of occupation.Footnote 128
To appreciate the significance of applying the Basic Law in these circumstances, it is useful to consider the unusual structure of the HCJ's normative analysis: in ordinary constitutional cases the Court examines whether a right has been interfered with, whether it is a constitutional right, and then whether the interference complies with the limitation clause, namely is based on a law which pursues a worthy cause and is proportionate to the goal sought. Hess, Bethlehem Municipality, Murar and other casesFootnote 129 feature a converse analysis. They begin by describing the worthy cause in pursuit of which the right of Palestinians has been interfered with, namely the protection of a constitutional right of Israelis (freedom of worship in Hess and Bethlehem Municipality, bodily integrity and life in Murar and Abu Dahr). Only then the Court turns to examine the balance between the competing rights (of the Palestinian petitioners on the one hand and of Israelis on the other). Since the Court's point of departure is the protection of interests which the law of occupation does not protect – namely freedom of worship and movement of persons other than protected persons – the Court resorts to Israeli constitutional law where these interests are legally protected, effectively summoning it as a justification for limiting rights (protected by the law of occupation) rather than as a means for their further protection. This dilution is the consequence of giving constitutional law priority over the law of occupation, where the law of occupation is more protective of the population of protected persons.
The dilution of protection under the law of occupation risks even greater severity if the Basic Law is applied only to Israelis but not to Palestinians (a scenario that is implied in the rationales for extraterritorial applicability of the Basic Law but has never yet materialised). Given the normative priority of domestic law over international law, the interests of the Israeli party – protected by the Basic Law – would acquire, at least prima facie, a normative advantage over those of the Palestinians – protected only by international law. This would violate the underlying principle of the law of occupation, namely the need to offer the local population special protection against the occupying power's pursuit of its own interests.
Once the human rights paradigm is applied, dilution of the law of occupation can occur even when at issue are the rights and interests only of protected persons. This is illustrated in Yesh Din, an appeal against the holding of Palestinian residents of the West Bank in jails within Israeli territory, in contravention of Geneva Convention Article 78. The HCJ ruled that this detention or imprisonment is authorised under primary legislation,Footnote 130 which under Israeli law takes priority over conflicting international law.Footnote 131 In obiter dictum, the Court added that the interpretation of the Fourth Geneva Convention ‘must be carried out in a manner corresponding to the special circumstances and characteristics dictated by the need to apply the laws of occupation in conditions that match the manner in which the territory is held … primarily, giving significant weight to the rights of the protected population, and, in so doing, the rights of detainees’, inter alia under the ICCPRFootnote 132 and the UN 1988 Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment.Footnote 133 The Court applied a human rights balancing test, finding that holding detainees in Israel ensured ‘conditions of detention befitting human dignity’,Footnote 134 and thus did not violate the substantive provisions of international law, namely Geneva Convention IV Article 27, but rather was necessary for complying with them.Footnote 135 The Court concluded that ‘the obligation to comply with the humanitarian provisions of the Geneva Convention regarding conditions of detention of detainees must be distinguished from the claim regarding the location of detention’,Footnote 136 ignoring the fact that the location of detention served a humanitarian purpose. It moreover transformed the specific and absolute prohibition on removing detainees from the occupied territory into a technical matter that could be dismissed through a human rights balancing analysis under Article 27, which stipulates only a general obligation (which is not absolute) to treat protected persons with respect.Footnote 137
The priority given to rights under the Basic Law over restrictions under the law of occupation is a violation of the law of occupation. This is not an unavoidable consequence of recourse to the Basic Law. Even under the Israeli legal order, domestic law, including the Basic Law, should take precedence over international law only where there is an irreconcilable conflict between the norms. The Basic Law can be interpreted in conformity with the law of occupation. The law of occupation should be regarded as ‘law’ pursuing a worthy cause, justifying a proportionate limitation on rights guaranteed by the Basic Law. As described, however, the practice of the HCJ is the converse: rather than use the law of occupation as a limitation on the Basic Law, the Court imposes limitations based on the Basic Law and constitutional law on rights protected under the law of occupation.
Another aspect of applying Basic Law: Human Dignity and Freedom in the West Bank is the equalisation of public law in the West Bank and public law in Israel. If the application of the Basic Law is unencumbered by the law of occupation, its implementation in the West Bank resembles its implementation in Israel.Footnote 138 This creates a semblance of uniformity of law between Israel and the West Bank, at least insofar as it concerns Israelis.
The assimilation of public law in the West Bank with that which governs in Israel has far-reaching, detrimental consequences for Israel's compliance with the law of occupation and international law generally. First, in view of the uncertain basis for the applicability of the Basic Law and the strong territorial element that it seems to contain, it may indicate an attempt at de jure annexation of the territory, contrary to general international law. Second, it encourages Israeli settlement in the West Bank, which is not only prohibited under the law of occupation, but also facilitates de facto annexation of the territory.Footnote 139 Such assimilation is not an isolated phenomenon. It should be assessed in light of other measures in Israeli law, which in combination result in the legal regime in the West Bank increasingly resembling that of Israel, despite the non-applicability of Israeli law in the West Bank on a territorial basis. These include the duplication of domestic law into military orders, generally and specifically in respect of relations between settlers within the territory of settlements; and the use of choice-of-law rules that expand the use of Israeli law insofar as it concerns life in the settlements.Footnote 140 The HCJ's statement in Mar'abe that ‘Israelis present in the area have the right to life, dignity and honour, property, privacy and the rest of the rights which anyone present in Israel enjoys’Footnote 141 demonstrates that this assimilation is not an incidental side effect but a deliberate choice. One might suggest that the uniform application of the Basic Law illustrates the universality of human rights under the jurisprudence of the HCJ. Yet the reference to the need to equate rights available to Israelis in the West Bank to the rights accruing to ‘anyone present in Israel’ rather than ‘everyone else in the territory’ or ‘any person’ suggests that the expansion of the Basic Law's applicability rests on something other than universality.
The relationship between the legal regimes in Israel and in the West Bank has been addressed in Israeli jurisprudence, but not in the same context as that which is considered here. In one case, a petition was submitted demanding the extension of certain benefits to residents of the settlements on the ground that these benefits had been granted to residents within Israel and that equality dictates that they be granted also to residents of the settlements in the West Bank. The HCJ rejected the claim that Israelis in the West Bank are entitled to be governed by the same law as Israelis in Israel or, for that matter, as Palestinians in the West Bank.Footnote 142 The Court did not need to consider the present question, whether uniformity was objectionable. A question which was more closely related to the issue at hand arose in Abu Itta, which concerned the imposition of value added tax in the West Bank and the Gaza Strip after a similar tax had been introduced in Israel. The HCJ accepted the state's position that uniformity in taxation was essential for maintaining commercial relations between Israel and the occupied territory, a goal perceived as beneficial to the Palestinian population.Footnote 143 The Abu Itta rationale does not reflect directly the issue of applying the Basic Law with respect to the West Bank. First, in Abu Itta the uniform law applied equally to all, whereas with respect to Basic Law: Human Dignity and Freedom this remains unclear, given the uncertainty of the normative basis for its applicability. Moreover, the effect of the legal change in Abu Itta was identical for all individuals concerned, since the taxation regime that had applied previously was identical for all. In contrast, the application of the Basic Law in the West Bank has different repercussions for Israelis and Palestinians, since they are governed by different regimes to begin with (the Palestinians being protected persons). As indicated above, the change is beneficial for the rights of Israelis, whereas it is largely detrimental to the rights of Palestinians. Second, in Abu Itta, uniformity – of the regime, regardless of its specific content – was not advocated as an independent goal but as a means of serving the interests of the local population, a consideration within the mandate of the military commander. In respect of the Basic Law the Court stated that uniformity in the legal regime is itself normatively justified, without engaging with whether it is advantageous or detrimental to the population, and whether it is a factor which the military commander may take into consideration.
To conclude: if the extraterritorial applicability of Basic Law: Human Dignity and Freedom is subject to the law of occupation, it might not be objectionable. But the practice whereby the Basic Law takes precedence normatively and substantively over the law of occupation leads to outcomes that are in violation of the law of occupation, both in concrete cases and in the regime prevailing in the West Bank.
6. Conclusion
The 1992 constitutional revolution in Israeli law has not passed over the West Bank. Like international human rights law, constitutional rights discourse in the HCJ's jurisprudence knows no territorial boundaries. Formally, Basic Law: Human Dignity and Freedom does not apply in the West Bank on a territorial basis, but beyond that the picture emerging from HCJ practice is vague. The interchangeable use of constitutional law, administrative law, international human rights law and the law of occupation is chaotic, ignoring the differences in the substantive and normative distinctions between these bodies of law, and paying insufficient attention to the uncertainty as to the applicability of some of them.
From the perspective of international human rights law and its optimal implementation, the necessity for applying the law extraterritorially is far from established. Substantively, there is no guarantee that the Basic Law would replicate international norms. Procedurally, the advantage of invoking domestic rather than international law in Israeli courts has only a limited effect insofar as concerns action in the West Bank. Recourse to the Basic Law, which can mitigate the primacy of ordinary domestic legislation over conflicting international law, is less pronounced with respect to conduct in the West Bank, which is regulated principally by military orders which constitute secondary legislation within the Israeli legal order. Otherwise, unincorporated international norms may already be implemented to a large extent through interpretation of domestic law under the presumption of conformity.
If extraterritorial applicability of the Basic Law is nonetheless pursued, it must be carried out in conformity with international legal principles regarding the extraterritorial application of domestic law. The Basic Law cannot be extended to the West Bank on a territorial basis. Its application on a personal basis may maintain the fiction that the Basic Law does not apply territorially and pre-empt claims that Israel is acting towards annexation of the West Bank, but it is incompatible with the international human rights prohibition on discrimination; it is also contrary to the letter and spirit of the Basic Law. Applying the Basic Law extraterritorially as a regime of obligations imposed on state organs towards to all residents of the West Bank equally, presents other challenges, some of which are inevitable given the complex situations which the Court faces. Ultimately, the merit of applying the Basic Law extraterritorially depends on how its implementation relates to the applicability of other bodies of law.
There is a conceptual difficulty in applying substantive human rights law, based on mutual commitment between government and population, in situations of mutual hostility. Human rights discourse is based on equality and universality, concepts which are based on ‘blindness’ regarding the addressees of the law. Employing it when there is an inherent conflict of interests between the state and the local population, and especially when a civilian population of the occupying power is also involved, may render meaningless the law of occupation, which is geared precisely to address the inequality and lack of governmental neutrality which characterise situations of occupation.Footnote 144 To the extent that extraterritorial applicability of the Basic Law exacerbates these problems, there are strong legal and policy considerations against it. Indeed, this article proposes that, rather than expand the applicability of Basic Law: Human Dignity and Freedom, the Basic Law should be interpreted narrowly, giving effect to the obligation to comply with international law as a worthy justification for limiting rights.
