2.1. International Law is not Legally Binding Domestically

Unlike the constitutions of several countries, which include explicit provisions concerning the domestic status of international law,Footnote ¹⁰ the Israeli Basic Laws are silent on this issue, as well as regarding the power to ratify treaties. The two issues were left to judicial interpretation. The Court ruled that both treaty-based norms and customary international law do not bind the legislature, and that the former norms are not domestically enforceable.

The ruling on the status of treaties was based primarily on an axiomatic or formalistic approach. It assumed, rather than argued for, a dualistic model, according to which international law applies only in international relations, but not at the domestic level.Footnote ¹¹ The main precedent regarding the domestic status of treaties was established in Samara in 1956. The facts were unusual, and thus could have served to construct a doctrine recognising the status of a treaty at least in special circumstances. The Court's decision to avoid taking such a path demonstrates its strict position on this matter.

The case dealt with the property rights of certain Israeli Palestinians, classified as ‘absentees’. Shortly after Israel's foundation, a law was enacted ordering the confiscation of lands the owners of which were present, even if only temporarily, in enemy territory after the beginning of the War of Independence on 29 November 1947.Footnote ¹² In 1949, Israel and Jordan agreed (in the Rhodes General Armistice Agreement) that a certain area (known as ‘the Triangle’), which until then was under Jordanian control and was thus classified as enemy territory, was to become part of the State of Israel and that the Palestinians living in this area were to become Israeli citizens. The parties were aware of the fact that according to Israeli law these persons were classified as ‘absentees’ and, in order to protect them, the treaty provided that their property rights would not be infringed as a result of the change in their status.

Israel nevertheless confiscated lands taken from these persons, based on their status as ‘absentees’. Several landowners filed a petition based on the Rhodes Agreement, arguing against the confiscation. In rejecting their claim, the Court ruled that domestic legislation was not affected by the treaty. According to the relevant law, a person's status as ‘absentee’ was permanent and did not cease once this person became an Israeli citizen. Thus, the government was empowered to possess the land, notwithstanding the change in the legal status of the owners. The Court then explicitly ruled that a treaty is completely unenforceable in domestic courts and is thus powerless to confer rights upon individuals.Footnote ¹³

The Samara decision, which dealt with a treaty provision that was designed explicitly to protect the interests of specific individuals, applies a fortiori to treaties that are of a more general nature, as is usually the case. Indeed, the Court has followed this position in subsequent cases. It has ruled that treaty provisions are normatively inferior to domestic legislation,Footnote ¹⁴ and in any case they are not enforceable domestically and do not limit the discretion of office holders in employing governmental powers.Footnote ¹⁵

As indicated, this doctrine was based primarily on a formalistic approach, which assumes the dualistic model.Footnote ¹⁶ More than a decade after the Samara decision, the Court addressed the institutional aspect of treaties. It ruled in Kamiar (1967) that while the Knesset is authorised to ratify (or, possibly, even de-ratify) a treaty, as long as the legislature is silent, as it had been thus far in these matters, the government is authorised to act on its own discretion in the area of signing and ratifying treaties.Footnote ¹⁷ The Court thus validated the practice, almost twenty years old at that time, of the government ratifying treaties without the legislature's approval.Footnote ¹⁸ It was only after establishing this doctrine that the Court started to justify its ruling regarding the domestic legal status of treaties on the ideal of democratic, mostly procedural, legitimacy. A notable example is the language used in the Affo (1988) decision:Footnote ¹⁹

Thus, the ruling on the allocation of power to ratify treaties was not the basis of the position that treaty-based international law is not binding domestically. The correlation was in fact reversed. At first, the Court assumed the dualistic model, following the common law tradition, and ruled that given this model treaties are not binding at the domestic level. Based on this assumption it then recognised the power of the government to ratify treaties without the need for legislative approval, but this doctrine of the separation of powers was then used to justify the dualistic model on which it is based and the ruling that domestic legislation prevails over a ratified treaty, regardless of whether the legislation preceded the ratification or followed it. Accordingly, several scholars, who support the view that ratified treaties should be binding domestically as well as internationally, recommended giving the Knesset a formal role in the ratification process.Footnote ²⁰ These suggestions were not adopted.

It is often argued that customary international law, as distinct from treaty-based law, is legally binding in Israel, but this statement is only partially accurate. Customary international law does not bind the legislature and, in the event of conflict, domestic legislation prevails over customary law, as in the case of treaty-based norms. This doctrine was first established in Amsterdam (1952) with regard to the power of the legislature to create a norm that applies extraterritorially, arguably in contradiction to customary law. The Court ruled that ‘as long as the legislature clearly expressed its intention that the law will apply extraterritorially, the domestic court should rule accordingly … irrespective of the limitations imposed by the principle [of customary international law] of territorial sovereignty’.Footnote ²¹ The Court further implemented this doctrine in the famous Eichmann (1962) case regarding ex post facto penal legislation: ‘[W]here [there is a conflict between the provisions of municipal law and a rule of international law], it is the duty of the court to give preference to and apply the laws of the local legislature’.Footnote ²²

Formally, the distinctive element of customary international law is that, unlike treaty-based law, it provides a cause of action against the government. Indeed, in the early 1950s the Court was willing to recognise such a cause of action, but in all cases it rejected the claims on their merits. The seminal case in this respect is Shimshon (1950), which addressed the question whether the newly formed State of Israel is obliged by the activities of its predecessor, the British Mandate – in that case to reimburse customs duties unlawfully charged. The Court ruled that a possible source for imposing an obligation on the government to reimburse the petitioner for the unlawful charge is the finding that ‘all civilized nations’ have accepted such a norm and acted upon it, thus supporting the presumption that Israel implicitly accepted it too.Footnote ²³ The Court found that no such generally accepted norm existed, and thus rejected the claim. In subsequent cases, the Court has formulated a relatively stringent method of deciding whether a norm enjoys the status of ‘customary’ international law. It has ruled that the relevant inquiry is not about the ‘learned opinion of scholars’ but rather what countries do, thus conducting primarily a comparative law analysis in search of international consensus.Footnote ²⁴ Implementing this requirement has resulted in a very narrow set of norms that the Court has recognised as customary international law.

Over time, the Court developed both common law-based administrative law and a judge-made Bill of Rights and, as a result, the reliance on international law became largely superfluous. The Court has recognised an extensive set of causes of action against administrative bodies, including the requirement to act reasonably and the duty to respect ‘unwritten’ human rights, which include equality, freedom of speech, freedom of religion and freedom of occupation. It derived these norms from the state's constitutional identity as a liberal democracy, referring to provisions of the Declaration of Independence, and to other informal sources.Footnote ²⁵ The Court considered it unnecessary, and even undesirable in terms of democratic legitimacy, to refer to customary international law as a binding source to establish these rulings. It did not explicitly retract from the stated doctrine that unlike treaty-based law, customary international law is binding even without legislation to incorporate it. However, in practice, the Court does not follow this doctrine, and avoids addressing these sources of international law as legally binding. International law serves neither as a cause of action against the government nor as a decisive formal basis for the Court's rulings, but merely as a persuasive source of interpretation.Footnote ²⁶

A notable exception to this approach is Justice Cohn's concurring opinion in American-European Beth-El Mission (1967). The Court reviewed a governmental decision prohibiting the admission of non-Christian children to the Mission's kindergarten. All Justices agreed, based on the established doctrine, that an administrative action is invalid if it unjustifiably infringes the right to religious freedom. However, possibly because the case was considered shortly after the conclusion of the International Covenant on Civil and Political Rights (ICCPR),Footnote ²⁷ Justice Cohn based his decision, which did not result in invalidating the relevant state action, on international human rights law, ruling that the ICCPR is in fact customary law. According to his view, ‘religious freedom, as well as all other human rights set in the Universal Declaration of Human Rights, 1948, and the [ICCPR], are today accepted by all civilized nations, regardless of whether or not they are UN members or whether they ratified the 1966 Covenant’.Footnote ²⁸ The Court did not follow this position. Justice Witkon, writing for the majority in that case, explicitly noted that one does not need to address the international ‘documents’ in order to rule that the government is required to respect religious freedom, as this norm forms part of Israel's judge-made Bill of Rights.Footnote ²⁹ As indicated, it is the latter approach that prevailed.Footnote ³⁰

A similar development is evident in the context of using customary international law for recognising governmental powers. In the early days, the Court recognised such powers based on customary international law, ruling that this source is a valid alternative to explicit legislative authorisation, which is otherwise required.Footnote ³¹ A notable example of this approach can be seen in cases in which the Court has acknowledged the state's power to impose, under certain conditions, criminal liability extraterritoriallyFootnote ³² or retroactively.Footnote ³³ More recently, the Court has abandoned this practice, preferring to rely on domestic law doctrines to resolve disputes over governmental powers rather than referring to customary international law.

An exception to this approach is the status of international law regarding state actions taken in the Occupied Territories. The Israeli Supreme Court has ruled that such actions are justiciable domestically, and in scrutinising them it routinely applies international humanitarian law (IHL).Footnote ³⁴ The main reason for this exception is of a political nature. The Israeli government has distinguished between parts of the Occupied Territories in which it preferred to declare, largely for internal purposes, that its possession is intended to be permanent (East Jerusalem and the Golan Heights) (Area 1), and the rest of the territory (the Sinai Peninsula, and the Gaza Strip, from which Israel has already withdrawn, and the West Bank) (Area 2) in which it chose to present a policy of temporary possession. Despite the fact that in Area 2 Israel also built settlements in which Israeli citizens have lived, the distinction between the two areas is maintained by formally applying Israeli law only in East Jerusalem and the Golan Heights. In these areas, international law, including IHL, is not domestically binding. In contrast, in the other parts of the Occupied Territories – currently the West Bank – given the government's decision not to apply Israeli law and the Court's position that state actions there are justiciable, it was inevitable, in order to avoid a legal vacuum, to rule that IHL is legally binding domestically. The Court has ruled that Israeli (common law) administrative law also applies to state actions taken in the area, but this body of norms simply complements IHL in further restricting the powers of the government, rather than replaces or trumps IHL.Footnote ³⁵ As discussed below, the applicability of human rights law, at both the domestic and international level, is still unresolved.

This approach regarding the Occupied Territories is subject to two qualifications. One aspect, which today is largely moot, is the distinction between customary IHL norms and treaty-based norms, namely the non-customary norms of the Fourth Geneva Convention and its relevant Protocols. Following the traditional distinction between these two bodies of international law, the Court used to state that only customary law is legally binding domestically.Footnote ³⁶ However, this rhetoric notwithstanding, the Court has in fact referred to these treaty-based norms as binding the government when it acts in the Occupied Territories.Footnote ³⁷ In numerous cases the Court has reviewed state actions in accordance with the Fourth Geneva Convention and its additional Protocols, and declared activities invalid whenever they were found to be incompatible with this body of norms, without explicitly acknowledging that these provisions have become customary law.Footnote ³⁸

The second qualification concerns the position where there is a conflict between Knesset legislation and IHL. As indicated, in general, Israeli legislation does not apply in the Occupied Territories. However, in a handful of cases, in which the government found it justifiable to act in the Occupied Territories in a way prohibited by IHL, it chose to circumvent IHL by initiating legislation to apply in the area. The Court has ruled this practice to be valid. The seminal precedent in this context is Sajadiya (1988). At issue was a policy of detaining Palestinian residents of the Occupied Territories within Israel, a practice that is arguably prohibited by Articles 49 and 78 of the Fourth Geneva Convention. The Court ruled that even if this interpretation of the Convention is correct, the above policy is valid as it is explicitly authorised by domestic legislation.Footnote ³⁹ The Court disregarded the important distinction between the application of domestic legislation within Israel, where the legislature enjoys democratic legitimacy, and its application in occupied territory, the Palestinian residents of which are not eligible to vote in the Knesset that sets the norm. The Court ruled that the Eichmann precedent referred to above – that is, where there is a conflict between the provisions of domestic law and a rule of international law ‘it is the duty of the court to give preference to and apply the laws of the local legislature’Footnote ⁴⁰ – applies also in the context of the Occupied Territories.Footnote ⁴¹

The Court further expanded this doctrine in Affo (1988). At issue here was the deportation of several persons from the Occupied Territories. The deportation was authorised by law (Regulation 112 of the Defence (Emergency) Regulations, 1945) and the petitioners argued that since this law is incompatible with the absolute prohibition on the deportation of ‘protected persons’ contained in Article 49 of the Fourth Geneva Convention, ratified by Israel, the law should be declared invalid. The Court rejected this argument on its merits, interpreting Article 49 as permitting deportation of individuals when employing this measure is absolutely necessary for security reasons, and also addressing the more general issue of the constitutional status of the Convention.

The Court could have distinguished its precedents on this matter, as the law under consideration was not enacted by the Knesset: it was enacted by the British Mandate in Palestine, then implemented by Jordan, the sovereign of the area from 1948 to 1967. The binding status of the Defence (Emergency) Regulations was in fact a result of international law – Article 43 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land,Footnote ⁴² which requires the occupying state to respect ‘unless absolutely prevented, the laws in force in the [occupied] country’. The conflict was thus between two international law norms – Article 49 of the Fourth Geneva Convention on the one hand, and Article 43 of the Hague Convention on the other – a conflict that could have been resolved regardless of the domestic status, in Israel, of the Fourth Geneva Convention. However, the Court preferred to follow its aforementioned strict approach. It treated Regulation 112 as if it were domestic legislation enacted by the Knesset, notwithstanding the fact that this same norm, as far as its application within Israel is concerned, was in fact annulled by the Knesset back in 1979 and remained in force in the Occupied Territories only as a result of Article 43 of the Hague Convention. The Court ruled that giving preference to the Geneva Convention over domestic legislation is undesirable ‘from the viewpoint of sound administration and the rule of law’.Footnote ⁴³

To summarise, subject to the important exception of the law applicable to state actions in the Occupied Territories, international law is not binding domestically according to Israeli law. With regard to treaty-based norms, this doctrine is both as stated and that which applies de facto, employing a dualistic model, according to which Israel's international obligations are not enforceable at the domestic level. As for customary international law, the Court has ruled that in the case of a conflict between that and domestic legislation, the latter prevails and, while in other cases, customary international is binding in theory, this is not so in practice.

2.2. The Judicial Practice of Referring to International Law

The Court's approach – that violating international law is not a cause of action and thus may not serve as a basis for invalidating a state action – is often followed by a detailed evaluation of the relevant state action according to international law. The Court has insisted on demonstrating that the result obtained by implementing Israeli law does not contradict international law, despite its ruling that this set of norms is not legally binding. Thus, for example, in Eichmann, immediately after stating that international law is irrelevant since the domestic law is explicit and that it prevails even if it is in conflict with international law, the Court continued with a detailed analysis of international law to demonstrate that, in fact, such a conflict did not exist.Footnote ⁴⁴ This choice reflects the Court's particular interest in obtaining legitimacy from the international community in important cases, of which the trial of Eichmann is a prominent example.

The formal justification for the Court's tendency to address both treaty-based and customary international law is the doctrine concerning the role of international law in statutory interpretation. The Court has ruled, following the well-known ‘Charming Betsy’ canon of interpretation,Footnote ⁴⁵ that legislation should be interpreted to be in accordance with international law, as long as its express language does not bar such an interpretation. The Court established this canon of interpretation back in 1952 in Amsterdam in respect of customary international law,Footnote ⁴⁶ and in 1956 in Samara in respect of treaty-based norms.Footnote ⁴⁷ This canon has been cited frequently.Footnote ⁴⁸

However, a study of the Court's jurisprudence prior to 1991 reveals an interesting pattern. The Court referred to international law almost exclusively in order to justify a decision that the state action under consideration was lawful. Referring to international law, even based on the above canon of interpretation, was very rare when the Court found a state action to be unlawful. Examples of the first types of case are prevalent and include Samara as well as the Eichmann decision. Even Justice Cohn's concurring opinion in American-European Beth-El Mission (mentioned above) referred to international human rights law to justify validating the state action under consideration, rather than strike it down.Footnote ⁴⁹ In contrast, the seminal decisions in which the Court has ruled state actions to be invalid completely disregarded international law.Footnote ⁵⁰ The Court does not use standard ‘avoidance techniques’, such as the requirements of standing or non-justiciability, or narrowly interpreting international law to avoid conflict.Footnote ⁵¹ It has achieved this result through selective reference to international law. As discussed above, this pattern does not apply to decisions dealing with state actions taken in the Occupied Territories, in which international law is considered legally binding. Save for those rare cases in which it classified certain policies as non-justiciable (such as the legality of allocating public land for the establishment of Israeli settlements), the Court has addressed both customary and treaty-based international law in evaluating state actions, both when the governmental policy was found to be legally valid and to justify a declaration of unlawfulness.Footnote ⁵²

The above pattern, in the context of activities taken within Israel, of referring to international law largely to justify a judicial decision validating state actions but not to support a decision declaring them unlawful, is hard to explain. One may speculate that it had to do with the concern that international law did not have a sufficient level of popular legitimacy. Employing judicial review of state actions raises the anti-majoritarian concern, requiring the Court to rely on norms that enjoy a sufficient level of democratic legitimacy. As discussed below, from the 1990s the Court has quoted international law to justify not only decisions that a state action is valid, but also those that found them to be unlawful. The Court's extensive jurisprudence regarding activities taken in the Occupied Territories, which was based primarily on international law norms, may have contributed to this shift in the Court's approach. It may also be the result of the human rights revolution, including the ratification of five major UN human rights treaties, as most of the references to international law during this period are to these treaties.

4.1. The Positive Obligation to Protect Social Rights

The field of social rights is distinctive in the jurisprudence of the Israeli Supreme Court. Before the enactment of the Basic Law: Human Dignity and Liberty, the Court had developed a fairly extensive level of protection of civil and political rights (although based on negative obligations), but had avoided recognition of a positive obligation to protect social rights, such as rights to social security, housing, healthcare and education. Consequently, in the decade following the Constitutional Revolution, when the doctrine of positive obligation to protect social rights was still underdeveloped in Israeli constitutional law, the Court referred relatively extensively to international human rights law, mainly to the ICESCR and the CRC. Yet, in this field also the Court followed its general pattern of referring to international law to legitimise its decisions, and completely avoided any recognition of a conflict between international and domestic law. In particular, the Court referred to the UN human rights treaties in resolving disputes concerned with the protection of social rights only when these norms were in accordance with its decision, both in ruling that the government did not violate its duties and in finding a breach of a positive obligation to protect a social right. In contrast, when the Court chose not to follow the norms contained in the ICESCR and the CRC, reference to international law is completely missing with the Court basing its decisions exclusively on domestic sources.

In one type of case, the Court quoted international law to justify its decision not to require the government to positively protect a right. In Gilat Friends (1996), for instance, the Court reviewed the government's decision not to finance early childcare out of public funds. It restated the position that the CRC is not domestically binding and went on to demonstrate that its ruling – that Israeli law does not recognise a positive obligation to finance early childcare out of public funds – is compatible with the CRC.Footnote ⁷⁵ The Court employed a similar approach in Louzon (2008) in denying a petition to require the government to finance certain life-saving drugs and types of medical treatment out of public funds. It noted that the ICESCR permits ‘tak[ing] budgetary constraints into consideration, and [is] cautious in determining the scope of this right and the degree of protection it is accorded’.Footnote ⁷⁶

In another type of decision, the Court referred to international law to support its rulings to enforce a positive obligation. A noted example here is Yated (2002), in which the Court referred to the CRC and ICESCR to support its decision to recognise a human right to education, noting that the reference was intended to substantiate statutory interpretation rather than employ judicial review of legislation.Footnote ⁷⁷ The Court has followed this approach in subsequent cases involving the right to educationFootnote ⁷⁸ as well as in rulings recognising the right of access to drinking water,Footnote ⁷⁹ the right of immigrant workers to change their domestic employer,Footnote ⁸⁰ and others.Footnote ⁸¹ The most important decision in this line of cases is Hassan (2012), the only decision in which the Court struck down legislation that was found to violate the duty to positively protect the right to live in dignity. Here, too, the Court cited the ICESCR to support its ruling that positive rights are part of human rights law, and that they can serve as the basis for judicial review of legislation.Footnote ⁸²

As noted, all of these decisions have two common features. First, the Court refers to international law only as a non-binding source that merely complements the binding sources at the domestic level: legislation and precedents. The reference is in addition to other comparative law sources, and is typically very concise. Second, the reference to international law is always presented as supporting the Court's decision either to invalidate a state action or sustain it, rather than contradict it. Clearly, the Court often requires the government to positively protect social rights without referring to international law, even though the ratified human rights treaties could have supported the result.Footnote ⁸³ The important point to note is that in all the instances in which the Court's decision that the government has not violated its duty appears to be in contradiction with international human rights law, the Court opted to refrain altogether from referring to the ICESCR, the CRC or any other treaty.Footnote ⁸⁴

A prominent example is the 2005 case of Commitment to Peace and Social Justice Society, which dealt with the duty of the legislature to provide those in need with sufficient social benefits to ensure them a proper standard of living. In his later academic writing on this issue, Aharon Barak explicitly criticised the norms contained in the ICESCR in this respect and acknowledged that his (academic as well as judicial) position deviated from the position there.Footnote ⁸⁵ However, in giving the judgment for the majority in the decision, Chief Justice Barak preferred to completely disregard the ICESCR and its authoritative interpretation.Footnote ⁸⁶ It is telling that a reference to the covenant can be found in that case in the dissenting opinion of Justice Levy, who ruled that the cut in social benefits discussed in the case was unconstitutional.Footnote ⁸⁷

Another example is Rubinstein (2014), which addressed the validity of legislation that exempted Jewish ultra-orthodox publicly funded schools from teaching the otherwise mandatory core curriculum, thereby teaching exclusively religious studies. The dissenting view – which ruled that the law violates the state's positive obligation to ensure that all children receive adequate education and is thus invalid – referred extensively to both the ICESCR and the CRC.Footnote ⁸⁸ The majority, in contrast, which found no such obligation, ignored international law altogether. In these and similar decisions,Footnote ⁸⁹ the Court preferred not to address the contradiction between domestic and international law.

4.2. Detention of Asylum Seekers

The second field in which the same pattern is demonstrated is the trio of judgments reviewing the so-called anti-infiltration law. Following concerns of mass influx of persons fleeing into Israel from sub-Saharan countries, the Knesset enacted a law authorising the government to administratively detain any person who entered Israel illegally, regardless of whether that person is an asylum seeker or an economic immigrant. The Court first struck down the law in 2013 in Adam; in response, the legislature amended the law by reducing the period of detention from three years to one year, an amendment that was also declared invalid (Eitan (2014)). This decision led to a second amendment of the law, which for the third time was found to be unlawful (Dasta (2015)). This trio of decisions – which resulted in intense critique of the Court by several politicians, who questioned the very legitimacy of employing judicial review of legislation – resembles the above-mentioned pattern regarding the role of international human rights law.

In all three judgments, the Court's reasoning was based almost exclusively on Israeli constitutional law, primarily the Basic Law: Human Dignity and Liberty and its authoritative interpretation. The Court did refer to two of the UN human rights treaties that Israel had ratified – mainly the Convention Relating to the Status of Refugees, and the ICCPR – but the references were very brief and were used exclusively to justify the opinions of the majority that the domestic legislation unlawfully infringes human rights. The dissent, which presented the view that the administrative detention was lawful, completely avoided mentioning the treaties, let alone critically engaging with their provisions.Footnote ⁹⁰ Other decisions dealing with the government's duties towards asylum seekers have followed a similar pattern.Footnote ⁹¹

4.3. Application of the UN Human Rights Covenants in the Occupied Territories

A third area that illustrates the same pattern is the jurisprudence regarding the applicability of the UN human rights covenants in the Occupied Territories. As discussed above, the main sources of international law applied by the Court in this context are those that regulate belligerent occupation, namely IHL. Occasionally, the Court has addressed human rights treaties, but again it did so only when its ruling, based primarily on either Israeli law or the international law of belligerent occupation, was compatible with the Court's interpretation of human rights treaties.

A notable example is Marab (2002). In its decision the Court referred to the ICCPR in support of both its ruling that a certain norm set by the military commander was invalid (authorising an officer to detain a person for up to 18 days without a judicial order), and that another norm was lawful (denying detainees the right to consult a lawyer).Footnote ⁹² The Court did not rely exclusively on the ICCPR, but it did note that Article 9(3) – which requires that a detainee ‘shall be brought promptly before a judge’, to which the Court referred – ‘is perceived as part of customary international law’.Footnote ⁹³ Despite this conclusion, the Court did not treat this norm as decisive, but referred to additional sources, mainly Israeli public law and IHL, as well as to comparative law. It has adopted a similar approach in reviewing legislation authorising the detention of so-called ‘unlawful combatants’.Footnote ⁹⁴

A second example in this context is a set of cases – the most important of which is Mara'abe (2005) – concerning the legality of the Separation Barrier constructed by Israel. Parts of the Barrier are located within the Occupied Territory rather than on the border, thus creating enclaves of Palestinian villages on the ‘Israeli’ side of the Barrier and infringing several rights of Palestinians.Footnote ⁹⁵ Initially, the Court ruled, in Beit Sourik (2004), that the construction of the Barrier is permissible, subject to a case-by-case evaluation whether its specific route meets the requirement of proportionality, given the burden it imposes on Palestinians who are adversely affected by it. The Court referred exclusively to IHL and Israeli public law, disregarding international human rights law.Footnote ⁹⁶

Shortly after the Beit Sourik decision was published, the International Court of Justice (ICJ) addressed the legality of the Barrier in an Advisory Opinion. It held that the issue should be resolved not only according to IHL, but also based on the ICCPR and the ICESCR. The ICJ ruled that state parties are bound to comply with these treaties even when acting extraterritorially, including in occupied territories.Footnote ⁹⁷ The ICJ found that the Barrier infringes several rights, that these infringements do not promote general welfare, and thus ruled that the construction of the Barrier is unlawful. The approach of the Israeli Supreme Court, of reviewing each segment of the Barrier separately, provided it with an opportunity to revisit the subject and respond directly to the ICJ decision in Mara'abe (2005). Again the Court did not rule on whether Israel's activities in the Occupied Territories were bound by the covenants, although on this occasion it did review the legality of the Barrier according to these treaties by assuming arguendo that they were applicable.Footnote ⁹⁸ The Mara'abe decision is unique in the sense that given the ICJ decision, the Court was practically compelled to address international human rights law in a case in which domestic Israeli law, which found the construction of the Barrier permissible, seemed to be incompatible with a ratified UN human rights treaty. Here, too, the Court did not acknowledge a conflict between the two sets of norms, but held that the ICJ ruling was based on a partial evidentiary basis, and that given a more comprehensive assessment of the relevant facts, the construction of the Barrier was in fact permissible. According to the Court's position, the Barrier serves a legitimate purpose in accordance with the treaties, and it is the proportionality requirement that should be employed, on a segment-by-segment basis, finding only parts of the Barrier to be unlawful.Footnote ⁹⁹ Thus, here too the Court avoided ruling whether the ratified covenants legally bind the government in its actions in the Occupied Territories.Footnote ¹⁰⁰

As in other fields, in this context the Court avoids addressing international human rights law altogether in those cases in which its ruling might be in conflict with this set of norms. A prominent example is the long line of decisions finding that Israel's policy of demolishing terrorists’ houses, for the purpose of general deterrence, is lawful. The Court has based its rulings in this matter exclusively on Israeli constitutional law and IHL, avoiding entirely an evaluation of the matter in accordance with international human rights law.Footnote ¹⁰¹ It is highly probable that the policy of house demolition is incompatible with the state's commitments under the ICCPR,Footnote ¹⁰² and the Court's refusal to address this issue is telling. Here, too, the exceptions are found in the dissenting opinions, which in some cases refer to international human rights law to support their position that this policy is prohibited.Footnote ¹⁰³

In summary, in the quarter-century since their ratification, the UN human rights treaties have played a marginal role, at least in terms of explicit reference to them, in the jurisprudence of the Israeli Supreme Court. The Court has stated repeatedly that the covenants are non-binding domestically (or has left the issue unresolved, in the context of activities taken in the Occupied Territories), and it seems that it has not taken seriously the canon of interpretation relating to the presumption of compatibility. The most prominent element is the Court's insistence on carefully avoiding the admission of a conflict between Israeli constitutional law and international human rights law by ignoring the latter completely when it might not support the Court's interpretation of the former. In addition to avoiding any critical engagement with international human rights law, even when the Court has referred to it in support of its ruling, the reference was typically very concise. It was often made in conjunction with quotes from comparative law sources, such as the jurisprudence of the European Court of Human Rights, thereby implicitly inferring that the ratified UN human rights treaties also are not binding.

6.1. UN Human Rights Treaties should not be Domestically Binding

The starting point is the ideal of democratic legitimacy. The normative justification for the binding power of the Constitution, and thus also the justification for judicial review, is based on three related elements – procedural, sociological, and moral – which together form democratic legitimacy.Footnote ¹¹⁶ Procedural legitimacy deals with the process by which the relevant text was determined. The authority of the constitutional text results from the recognition of the Constitution as ‘law’, and from the fact that it was created through successive acts of popular sovereignty. Sociological legitimacy is derived from acceptance of the Constitution by the current generation, a requirement being that the Constitution will both reflect and accommodate that generation's values. Finally, the Constitution is binding based on moral justifications for its provisions. In constructing the framework of constitutional interpretation, as well as in identifying which sources should be legally binding, all three requirements should be satisfied.

The main purpose in adopting a formal constitution is not necessarily to entrench a certain – either a pre-existing or a new – social identity. On the contrary, it is often aimed at establishing a mechanism that will enable society to constantly re-evaluate and, when needed, to redefine its constitutional identity. The Constitution – this ‘thing’ that limits the powers of the current majority – is not a set of answers. Occasionally, most commonly in deeply divided societies, the quest for achieving consensus may be unattainable. In some cases, the Constitution may even serve to remove certain issues from the debate.Footnote ¹¹⁷ Mostly, however, a Constitution is formed to ensure an ongoing dialogue about its meaning through the interaction between the judiciary, the political branches and public opinion at large. Its text serves as a ‘focal point’ for ongoing debate and dialogue in which the members of society can participate.Footnote ¹¹⁸ Accordingly, a theory about what set of norms should enjoy constitutional status should be constructed in a way that will ensure that the members of the political entity known as ‘the People’ can take a meaningful part in the constitutional interpretation project. As suggested by Jack Balkin, ‘[a] Constitution is our law when we feel … that we have a stake in it’.Footnote ¹¹⁹ Similarly, Joseph Raz has suggested that the purpose of constitutionalising the prohibition on violating human rights is to enable ‘a common culture to be formed round shared intermediate [moral] conclusions’.Footnote ¹²⁰

These considerations are very relevant to Israel. The Israeli society is a rifted society. It intensively debates central elements of its constitutional identity in issues regarding Jews and Arabs, about secular-liberals and religious people, and more. Consequently, Israel's Bill of Rights is characterised by a gradual, slow process of development over several decades. As indicated above, initially the Court imposed a legal duty to respect human rights only on the executive branch, focusing only on negative obligations. As long as the Knesset did not enact a norm explicitly recognising such a duty, in a form that was recognised as part of Israel's unique piecemeal constitutional process, the Court ruled that the legislature is not constitutionally bound by a judge-made Bill of Rights. The idea was, and still is, that the Constitution should be formed as a result of public discourse, and mainly that it would be constructed in a way that invites stakeholders to participate actively in its interpretation.Footnote ¹²¹ Only when the Knesset enacted the Basic Law: Human Dignity and Liberty, after a long process of deliberation and a profuse set of compromises, did the Court recognise that Israel has a constitutional Bill of Rights.Footnote ¹²²

It was no coincidence that the Basic Law was formed as it was. It is not completely entrenched, and can thus be amended by a regular majority in the Knesset. The Basic Law contains very broad language, protecting primarily the right to ‘human dignity’ and employing the broad standard of proportionality. Most importantly, the Basic Law recognises the power of the political branches to infringe human rights not as ‘necessary in a democratic society’, as is the common perception in human rights treaties; rather, the Basic Law permits human rights infringements that are ‘befitting the values of the State of Israel [as] a Jewish and democratic state’.Footnote ¹²³ The Israeli Supreme Court's distinctively non-originalist method of constitutional interpretation but rather one of ‘living constitutionalism’ – following the lead of its former Chief Justice Aharon BarakFootnote ¹²⁴ – reflects the ideals of political and popular engagement in the ongoing process of giving meaning to the Bill of Rights.

Accordingly, international human rights law does not enjoy a sufficient level of democratic legitimacy in Israel. One aspect is obvious: the human rights treaties were not ratified by the Knesset. As discussed above, it is the government who ratified the treaties, without the Knesset's approval. In fact, the government itself acted based on the presumption that ratification would not make the treaties domestically binding.Footnote ¹²⁵ However, the treaties’ democratic deficit is more fundamental than the procedural aspect of the ratification process. The main concern is that international human rights law is not ‘our’ law in the sense essential for a source to be considered as part of a constitution. Israeli society does not and often cannot participate actively in the process of interpreting the treaties by foreign tribunals and institutions. It is distinctively not ‘our law’. The treaties do not reflect the specific foundations of the Israeli democracy. International human rights law, by contrast, is distinctively universal. Making precedents set by international bodies, addressing other societies, binding law in Israel contradicts the essence of the constitutional project and the ideal of democratic legitimacy. Thus, recognising the UN human rights treaties as binding might undermine the Court's delicate, and still debated recognition of the Basic Law as constitutionally binding.

Moreover, the benefit – in terms of providing a broader, more just protection of human rights – of making international human rights law nationally binding is questionable. Israel's Bill of Rights – both the enactment (the Basic Law: Human Dignity and Liberty) and its judge-made version – along with the tradition of an independent judiciary employing judicial review of legislation through an expansive interpretation of the Basic Law, already ensure significant protection of human rights in Israel.Footnote ¹²⁶ The added benefit of relying on international human rights law is unlikely to justify the cost in terms of the potential erosion of the political and popular trust in the Court and in constitutionalism more generally, given the doubtful normative legitimacy of making the treaties domestically binding.

Several scholars – most notably Ruth Lapidoth,Footnote ¹²⁷ Eyal Benvenisti,Footnote ¹²⁸ and Yuval ShanyFootnote ¹²⁹ – have pointed out that the argument over lack of democratic legitimacy is relevant also to customary international law, which is nevertheless considered domestically binding. Thus, arguably, the debate surrounding democratic deficit should not be considered decisive in determining the national status of treaty-based law in general, and the ratified UN human rights covenants in particular. Benvenisti and Downs have even suggested that enhancing the domestic status of international law is in fact essential for mitigating the difficulties encountered by democracies nowadays, as ‘democratic processes within states fail to take into account the preferences of all the relevant stakeholders’.Footnote ¹³⁰ Moreover, it is also argued that bolstering the national status of international human rights law is required precisely in countries like Israel, in which there are threats to the Court's independence and there is thus a considerable risk that the Court might not stand firm in protecting core values of liberal democracy. In Benvenisti's words, greater domestic reliance on international human rights law may be essential for ‘reclaiming democracy’.Footnote ¹³¹

Using the above categorisation, the underlying idea of all these arguments is that moral legitimacy should trump the other two elements that form the requirement of democratic legitimacy. Arguably, the prospect that reliance on international human rights law will ensure that courts reach more just results, thereby providing better protection of human rights, is sufficient to justify classifying this body of law as binding at the domestic level. In fact, this argument is closely related to the idea suggested by Justice Cohn in two concurring opinions (mentioned earlier) that international human rights law is customary law and should thus be binding.Footnote ¹³²

I find these arguments only partially convincing. Consider, first, the argument that international human rights law is customary law. It is acceptable that the general duty to respect human rights, including the requirement to defend human rights infringements based on certain types of justification, should be considered customary international law. However, this kind of norm is practically meaningless. A general duty to respect and protect human rights is recognised nationally. In those contexts in which legislation is immune from judicial review (for instance, in Israel, legislation that was passed before the Basic Law was enacted in March 1992), classifying international human rights law as customary law would not change this result, as customary law also is normatively inferior to national legislation.Footnote ¹³³ The important element is not the general duty to protect human rights but the more detailed content of the specific rights: which interests are protected by each right, which state actions are considered an infringement, and under what conditions can an infringement be justified? In this respect, it is obviously the case that there is no universal consensus. Legal systems differ in the rights that are enumerated in their Bills of Rights; in the private interests that the rights protect (for example, is incitement to racism or pornography protected speech);Footnote ¹³⁴ in determining what types of state action are considered an infringement (for example, is there a positive obligation to protect rights,Footnote ¹³⁵ whether it is only intentionally targeting the free exercise of religion that is considered to be an intervention or whether any undue burden constitutes one),Footnote ¹³⁶ and so on. The fact that the same rights are enumerated in various legal systemsFootnote ¹³⁷ says very little about the types of state action that these rights limit. In fact, the entire field of comparative constitutional law is founded on the basic insight that human rights law differs across the various legal systems. Similarly, regional and international human rights tribunals employ a fairly wide ‘margin of appreciation’ and similar deference doctrines,Footnote ¹³⁸ based again on the recognition that the scope of protection of rights is determined according to each state's specific values, referred to as its ‘constitutional identity’.Footnote ¹³⁹ There are specific areas in which international consensus has been formed – such as the prohibition on the use of torture in interrogationFootnote ¹⁴⁰ – but these instances are identified through a detailed comparative law inquiry, and they are the exception rather than the general norm. The fact that a certain right is enumerated in an international human rights treaty may be instrumental in forming an international consensus, but it is not the case that this mere enumeration on its own makes the relevant norm – the scope of protection of a certain interest – universally accepted.

Accepting that international human rights, at least in most of its parts, is not customary international law is important not only for doctrinal purposes – that is, for rejecting the argument that it is binding at the domestic level – but also for questioning the more general premises about democratic legitimacy. The idea that, at least in the context of customary law, the requirements of procedural and sociological legitimacy can be ignored is debatable. One may infer these doubts from the accentuated reluctance of the Israeli Supreme Court to enforce customary law within Israel.Footnote ¹⁴¹ As discussed above, there is a clear distinction in the Court's jurisprudence in this respect between the law applicable in the Occupied Territories on the one hand – where the Court does require the government to obey the limitations imposed by customary law – and within Israel on the other. This practice can be explained by the concept of democratic legitimacy. In the Occupied Territories, it is indeed the case that procedural and sociological legitimacy is irrelevant, as those who are subject to state action – the Palestinian residents in the area – are ineligible to vote or participate more generally in the political discourse. Thus, moral legitimacy in enforcing customary law is sufficient to justify it. In contrast, within Israel, notwithstanding the criticism of Benvenisti and Downs about the failure of the democratic process to represent all relevant stakeholders, the lack of procedural and sociological legitimacy of customary international law should not be ignored. It is this deficiency that is probably the main reason for the Court's reluctance to implement de facto customary international law.

Moreover, the suggestion that since customary law is binding, the requirement of democratic legitimacy is superfluous, is unwarranted. One may ignore the requirements of procedural and sociological legitimacy in the context of customary law only since the underlying assumption is that there are no ‘reasonable’ disagreements regarding the relevant norm.Footnote ¹⁴² Even if not all members of society actually agree on the notion of human rights – or, for that matter, on the norm that one should not be tortured – regardless of the anticipated benefits of the use of this practice, it is the universal consensus that makes these disagreements normatively irrelevant. This essential element is missing in the context of the greater part of international human rights law. Benvenisti suggested that international human rights law should be domestically binding since ‘human rights have a special status in a democratic society. They are the very foundation of the democratic system. The majority of the people is … incapable of denying human rights’.Footnote ¹⁴³

However, as discussed above, international human rights law is not recognised as customary law precisely because of the recognition that disagreements on the scope and nature of the protection of human rights are reasonable. In fact, this body of law – again, not the general recognition of the duty to respect the rights enumerated in the treaties, but the details of this duty – is not recognised as customary law because of the importance of the requirements of procedural and sociological legitimacy. The fundamental aspect of constitutional human rights law is the participation of members of society in determining the actual content of such law. Otherwise, the argument that the ‘special status’ of human rights is sufficient to make international human rights law domestically enforceable, thus making the national Bill of Rights superfluous, is self-defeating: if it were true, international human rights law itself is equally superfluous. The reasons that generally deny the legal status of human rights if procedural and sociological legitimacy is missing apply when resolving the domestic status of international human rights law.Footnote ¹⁴⁴

I thus find the Court's dualistic approach justifiable. Given that the treaties were not adopted by the legislature and were not adapted to the country's specific constitutional identity, they should not be recognised as domestically binding, given the lack of a constitutional provision stating otherwise. At the same time, it does not follow that the ratified treaties should be regarded in the same way as comparative law, as a mere source of inspiration.

6.2. International Human Rights Law as a Benchmark

While lacking in terms of procedural and sociological legitimacy, the treaties enjoy substantial moral legitimacy. The concept of human rights has an important universal element. Norms set in the treaties form a benchmark – a standard reflecting common-sense morality. In resolving disputes about the permissibility of infringing human rights, addressing practices and judgments of other jurisdictions are expected to contribute to achieving greater compatibility between morality and state actions. Requiring the Court, as well as the legislature and the government, to refer to international human rights law in making decisions as a persuasive source and justify instances of incompatibility is an essential element of human rights protection.Footnote ¹⁴⁵ In formal terms, this requirement is induced by applying to the Basic Law: Human Dignity and Liberty the canon of interpretation involving the presumption of compatibility with international human rights law.

From the perspective of Israeli constitutional law, it is permissible to legislate or to judge in a way that is incompatible with international human rights law. The justification for such incompatibility may be based on reasons such as the state's particular constitutional identity, Israel's reservations to the treaties,Footnote ¹⁴⁶ the binding language of the constitutional text, or even mere disagreement with the relevant norms of international human rights law, by exercising judicial discretion. Similarly, as in the Mara'abe judgment, the Court may deviate from a decision made by an international body after determining that the relevant facts are different from those assumed by that tribunal,Footnote ¹⁴⁷ but the incompatibility should be acknowledged explicitly. A judicial decision should be subject to a requirement of justification whenever the outcome contradicts the prevailing interpretation of the treaty. Treaty-based norms should not be domestically binding, but at the same time should not be viewed as a mere source of inspiration.Footnote ¹⁴⁸ The basis for the Court to take upon itself such a commitment is its expected contribution to the proper exercise of its discretion in interpreting the Israeli Basic Laws and implementing them in concrete cases.

International human rights law is best suited to address the challenge in using comparative law in domestic adjudication. On one hand, referring to foreign legal systems is essential in constitutional interpretation.Footnote ¹⁴⁹ Addressing foreign precedents is important in a well-functioning democracy. Comparative law is an important source for implementing doctrines such as the minimal impairment requirement of the proportionality doctrine, which includes identifying whether alternative, less harmful measures exist to achieve a particular social interest. Primarily, the comparison with other legal systems is vital for identifying and critically evaluating the fundamental principles of a legal system and to ensure progressive development of human rights protection. The role of such a comparison is especially vital in legal systems that function less than optimally, which includes the Israeli system. Referring to a foreign legal system, even for the mere purpose of comparison, may well have an empowering element for domestic courts.Footnote ¹⁵⁰ It enables them to locate Israeli constitutional law along a spectrum, by reference to prevailing norms in other democracies. This very act of explicit comparison is often sufficient to bolster the protection of human rights, and prevent deviation from fundamental values arising from instances of moral panic or populist pressure. On the other hand, the overarching problem of this method of utilising comparative law in constitutional adjudication is the absence of a systematic and sufficiently comprehensive methodology. The concern is that judges may employ a ‘pick and choose’ method, referring to certain legal systems but not to others as required to support their specific positions. Comparative constitutional law often suffers from the lack of ‘focal points’ of legal systems to which reference is universally accepted. It is also subject to biases such as the availability of certain legal systems but not others, as a result of language constraints, or the scope of familiarity of a certain judge with a particular legal system.

International human rights law serves as a preferable reference point, both to obtain the benefits of referring to a foreign legal system and to avoid the difficulties of this practice. International human rights law provides a natural ‘focal point’. Referring to this body of law, which is formed around a shared text – the UN human rights treaties – also facilitates the conduct of national comparisons, given that other legal systems similarly address that body of law as a point of reference. Indeed, the lack of a nationally accountable judiciary, which implements international human rights law based on a fully articulated factual basis, creates some difficulties in relying on decisions of international tribunals and the UN Human Rights Committee. However, the central institutions that develop international human rights law are in fact national courts.Footnote ¹⁵¹ This ever-evolving body of international human rights law, with its multiple players of diverse types, is the preferable point of reference for domestic courts to consult, define themselves in comparison with, and consider revisiting their precedents and existing perceptions.