2.1. Europe

The European Convention on Human Rights obligates the states to secure the rights of anyone under their jurisdiction.Footnote ⁵⁰ The central decisions on extraterritoriality of the ECtHR address human rights obligations during military occupation and military activity. The rulings have evolved from a situation of occupation (which is relatively clear in terms of the effective control of the occupying state) to ‘greyer’ areas of exercising authority, military force and law enforcement. In two early decisions, the ECtHR determined that the ECHR imposes obligations on Turkey in Cyprus, where it occupies substantial territories, towards the populations of these territories.Footnote ⁵¹ In Banković v Belgium, the Court stipulated that the ECHR did not apply to the NATO bombings during the war in the former Yugoslavia because, unlike earlier cases, the events occurred where the state concerned did not have effective control.Footnote ⁵² In addition, it held that the territorial state (Yugoslavia) was not a party to the Convention, which is regional in essence and does not reflect a universal concept of human rights that should be implemented outside the European espace juridique. According to the Court, the various obligations in the Convention cannot be ‘divided and tailored’. Therefore, its application means a comprehensive commitment to ensure all of the rights in the Convention, which is impractical. This decision created confusion with regard to both the outcome and the reasoning, which is highly controversial. It meant that states acting outside Europe, or even within Europe in states that have not joined the Convention, could be free from their commitment to the human rights of civilians and from judicial review of their actions. However, in subsequent decisions, the ECtHR has determined that states are responsible in extraterritorial contexts, particularly in cases of the arrest and imprisonment of civilians.Footnote ⁵³ In the Issa case, the guiding principle on this subject was formulated: the Convention does not permit a state to commit, outside its territory, violations of human rights that would not be allowed in its own territory:Footnote ⁵⁴

The subsequent case of Al-Skeini v United Kingdom involved a number of incidents in which Iraqi civilians were killed by British forces and one case of an Iraqi civilian killed while in custody in a UK detention facility.Footnote ⁵⁵ The House of Lords determined that the UK was responsible only for the civilian held in custody and not for other civilians who were hurt as passers-by during military activity, because it distinguished between the levels of control the UK had in the different situations. However, the ECtHR ruled that the UK was responsible for all of the incidents. Contrary to Banković, the Court stated that it is possible to distinguish between various rights under the Convention and to apply only some of them. Since the UK was an occupying power in Iraq, assuming responsibility for the well-being of the population, it was responsible under the Convention for the rights of Iraqi civilians at that time. However, its responsibility was limited to the areas in which its agents exercised their authority. The Court ruled that the application of the Convention is primarily territorial, but that there are exceptions to this rule.

The first exception is state agent authority and control (SAA), which represents the universal principle. This exception applies also in the absence of full control in the territory, when the state's agents exercise authority with or without the consent of the territorial state, including via diplomatic and consular representatives, or in the case of consent to foreign presence, military or other. This exception has been applied in cases of arrest and imprisonment by one state in the territory of another state, as well as in cases of arrest and transfer to the arresting state.Footnote ⁵⁶ These cases entail the exercise of authority over a person and not over territory; accordingly, the state's responsibility concerns a person on whom the state exercises authority. The second exception is effective control over territory, although this applies in parallel with the IHL rule that the existing laws in an occupied territory must remain in effect and human rights obligations must be applied in a way that is consistent with local law.

In conclusion, with regard to the source of law, the ECHR dictates that the source of law used by the ECtHR is the European Convention, and establishes the jurisdiction of the Court. However, it does not preclude consideration of member states’ constitutional concepts, although these were not considered in the extraterritorial cases. The current position of the ECtHR with regard to the other questions is that the obligations contained in the ECHR apply extraterritorially, but not in their full scope and not in all cases. They apply primarily in cases of effective control over territory or concerning the actions of a state agent. The ECtHR has thus accepted the territorial and universal approaches, ignoring even the possibility of a personal approach. It also takes into consideration the law of occupation and the respect for local laws that it entails. It did not consider the possible conflict with constitutional law, as its application was not considered.

2.2. The United States

The debate in the US jurisprudence is completely different in nature and focuses on applying constitutional rights outside US borders. The United States has ratified the International Covenant on Civil and Political Rights (ICCPR), among other human rights conventions. Although the Supremacy Clause of the US Constitution establishes that treaties made under the authority of federal law constitute part of the supreme law of the land, the Supreme Court distinguishes between self-executing and non-self-executing treaties. According to this doctrine, only self-executing treaties have immediate effect and are enforceable in US courts as federal law. Non-self-executing treaties are not enforceable unless and until Congress incorporates them into law.Footnote ⁵⁷ Furthermore, the United States declares in its reservations to international treaties, including human rights conventions to which it is party, that the conventions are non-self-executing, and thereby not enforceable by US courts independently of the Court's interpretation.Footnote ⁵⁸ This makes human rights conventions unenforceable in US courts for territorial and extraterritorial application alike, although the US remains committed to them on the international level. With regard to the extraterritorial application of human rights treaties, the government's long-time position has been that they are not binding outside US borders.Footnote ⁵⁹ However, a first crack in this wall appeared when the US announced a change in its position with regard to the Convention Against Torture (CAT), in the 2013 meeting of the United Nations (UN) Committee Against Torture.Footnote ⁶⁰ However, this change does not affect the unenforceability of the CAT in US courts.Footnote ⁶¹ American courts, in addressing extraterritorial questions, comply with the government's position and apply the US Constitution, federal and state law, unless a treaty has been incorporated into law.Footnote ⁶²

In recent years, the discussion has focused on the United States’ human rights obligations towards detainees captured in the ‘War on Terror’,Footnote ⁶³ but the US courts had addressed the question of the application of the Constitution outside the US long before that. A series of opinions from 1901 to 1904, referred to as the Insular Cases, focused on the colonial expansion of the United States and discussed the application of the Constitution in newly acquired territories.Footnote ⁶⁴ The jurisprudence distinguished between territories that were to be annexed permanently to the US (‘incorporated’) and those that were intended to be held temporarily (‘unincorporated’). With regard to the former, the Court ruled that the Constitution applies fully without the need for an explicit legislative act. With regard to the latter, the Court ruled that the Constitution would apply only partially depending upon congressional legislation, except for fundamental personal rights that apply even in unincorporated territories. It did not articulate, however, which constitutional rights were fundamental.Footnote ⁶⁵ The question ‘Does the Constitution follow the flag?’ was answered illustratively by Elihu Root: ‘[T]he Constitution follows the flag – but doesn't quite catch up with it’.Footnote ⁶⁶

The US Supreme Court addressed this issue again after the Second World War when annexation was legally out of the question. When German prisoners of war in an American camp in Germany petitioned for the right to habeas corpus proceedings, the Court ruled, in Johnson v Eisentrager (1950), that these prisoners were not entitled to constitutional habeas corpus rights as they were foreign enemy nationals outside the United States.Footnote ⁶⁷ A dissenting opinion of three justices argued that the prisoners should be granted constitutional rights because these were basic human rights accorded to every person as a human being, regardless of citizenship or residence:Footnote ⁶⁸

On the other hand, in Reid v Covert (1957), the Court held that American citizens outside the US (the wives of soldiers residing with their husbands stationed overseas) have a constitutional right to due process and trial by jury, and thus could not be brought to trial in a court martial where they were stationed.Footnote ⁶⁹ Ostensibly, the difference between the two cases was the element of citizenship, which led to the extraterritorial application of constitutional rights only to US citizens. Similarly, in United States v Verdugo-Urquidez (1990), the Court decided that a non-US citizen, outside US territory, does not have a constitutional right to due process.Footnote ⁷⁰ This case involved a Mexican citizen, whose home in Mexico was searched for drugs by US agents. The Court ruled that he was entitled to the constitutional protection of his own country and not of the US. In a dissenting opinion, two justices argued that constitutional rights apply whenever US agents exercise their authority, even outside US borders. At this stage, therefore, the Court's jurisprudence established that only US citizens were entitled to constitutional rights in territories outside the US that are neither annexed nor under its control, applying the territorial and personal principles.

The next stage of the US discussion related to detainees held in the Guantánamo Bay naval base.Footnote ⁷¹ The government's position was that detainees in the ‘War on Terror’, held outside the United States, do not enjoy the rights provided under the US Constitution and laws because they are non-citizens, outside US territory. The government defined these prisoners as unlawful combatants (not entitled to the status of prisoners of war), arguing that this category also denied their rights as civilians under IHL. Nonetheless, several decisions by the US Supreme Court recognised statutory authority to exercise judicial review of the arrest of such detainees, and minimum rights guaranteed to them under IHL.Footnote ⁷² The decision in Boumediene v Bush followed the legislative suspension of all statutory proceedings that were previously acknowledged by the Court as available to non-citizen detainees in Guantánamo Bay. The government argued that in all matters pertaining to non-citizens, the application of the Constitution is only territorial. The Court, however, stated that even in the absence of statutory proceedings, the detainees have a right to habeas corpus proceedings under the US Constitution, since the application of constitutional rights is not limited to the United States and to territories under US sovereignty, but can also stem from the exercise of complete jurisdiction and control extraterritorially.Footnote ⁷³ According to the decision, three factors affect the extraterritorial application of constitutional rights: (i) the citizenship and status of the detainee and the adequacy of the process through which that status was determined; (ii) the nature of the sites where the arrest and detention were conducted; and (iii) practical obstacles inherent in exercising the detainee's rights. With regard to Guantánamo detainees, the Court ruled that the detainees are not citizens – but it is disputed whether they are enemy combatants and the process the government conducted to determine their status was not adequate; that Guantánamo is an area within the constant jurisdiction of the US; and that there are no practical obstacles to conducting habeas corpus proceedings. The Court admitted that its ruling was unprecedented, but argued that the historical and geographical circumstances, the long duration of the ‘War on Terror’ and the detention in Guantánamo were similarly without precedent.

In the United States, therefore, the question of the legal source of rights was determined by the government in declaring human rights treaties to be non-self-executing and therefore unenforceable. However, it could be argued that the doctrine of self-executing treaties was intended to determine the enforceability of treaties inside the US, but not extraterritorially, where the US is still bound by international conventions. Theoretically, then, the Court might not be bound by this doctrine in extraterritorial cases.Footnote ⁷⁴ However, to date the US Supreme Court has used the Constitution as the only relevant legal source. In Boumediene it asserted its jurisdiction, and extended the application of constitutional rights to include non-citizens outside US territory, but under the full control of the US – both physically (that is, detained by US authorities) and territorially (that is, present in territory under the complete and exclusive control of the US), although not in all cases. It implemented a personal and territorial approach, but considered also the practical possibility of exercising the rights, including access to a US court or tribunal. This relatively flexible test does not endorse the universal principle, which was acknowledged only in minority opinions. The rejection of the universal approach led the DC Circuit Court to rule that detainees held in the Bagram military base in Afghanistan were not entitled to the same rights.Footnote ⁷⁵ Moreover, constitutional rights were not applied as a package: the decisions, starting with the Insular Cases, applied constitutional rights selectively, distinguishing between fundamental personal rights and other rights. The debate regarding the Guantánamo detainees focused on the right to habeas corpus.

In concluding this consideration of the two principal models, the extraterritorial obligation to respect and ensure human rights derives from different sources of law. According to the American model, this obligation stems from the US Constitution, while according to the European model it derives from the ECHR. The question of the source of law was decided by the political authorities, either positively in the European case, or negatively (by declaring human rights treaties to be non-self-executing) in the US. Both Courts, however, have asserted their jurisdiction over extraterritorial cases. These cases tell us that courts are concerned about whether there is some judicial forum to which individuals have recourse. The US court seems to be aware of the fact that there is no other judicial recourse for individuals against acts and policies of the United States, and is reluctant to leave these individuals affected by the US completely unprotected.Footnote ⁷⁶ In the ECtHR, the application of the ECHR is essential in order to establish the Court's jurisdiction over extraterritorial acts of state members as it has no power to compel states to act according to their own constitutions.Footnote ⁷⁷ In this case, the jurisdiction comes with the substantive law.

In both models, the way in which human rights obligations are applied extraterritorially is far from being problem free and clear-cut. The rulings in the different fora do not provide uniform answers to the series of questions presented at the outset. Each model combines two of the three principles: territorial, personal or universal, their combination leading to uncertain results. The US jurisprudence is the only one that considers and implements the principle of membership, citizenship or other status.Footnote ⁷⁸ The ECtHR has implicitly answered this question negatively: personal application is not a possibility and citizenship is not a factor. In both models, the scope of obligations is partial, but the distinction between applicable and non-applicable rights is not completely resolved: not all rights necessarily apply, as they could be ‘divided and tailored’ or checked to determine whether they are fundamental and whether their application is practicable. Both models therefore leave unanswered the question of the application of different rights – for example, negative obligations (to respect human rights and not to violate them) and positive obligations (to guarantee rights). The universal (action) principle applied by the ECtHR reduces the scope of rights because it applies only when authority is being exercised and with regard to it, and thus does not include positive obligations to guarantee human rights where the state has not exercised its authority.

The question, though, is not only analytical but also historical. The US extraterritorial doctrine was initially developed in the age of colonial expansion through the Insular Cases. It dealt with territories that are to be ‘incorporated’ (that is, annexed) and become part of the United States. On the other hand, the European Convention and Court were created when colonialism and annexation became illegitimate and illegal. The European doctrine was thus developed when annexation, and therefore the imposition of state law extraterritorially, was no longer a legitimate option. The newer conception of sovereignty and use of force limited sovereign expansion and the territorial consequences of conquest, with the definition of occupation as temporary and the illegality of annexation.Footnote ⁷⁹ The different models are thus also reflective of the change of times, politics and mindsets.

3.1. The Early Israeli Doctrine of Extraterritorial Judicial Review (1967–92)

The early doctrine of the Israeli Supreme Court created limited legal integration between the territories and Israel. The government did not apply Israeli law as a whole to the West Bank and the Gaza Strip, which would amount to annexation and would have required granting full civil rights to the residents of these territories.Footnote ⁸⁷ The Court nonetheless asserted jurisdiction over the OPT, setting the following guidelines:Footnote ⁸⁸

1. (a) The Supreme Court has jurisdiction to conduct judicial review over the military government's acts in the territories, and residents of the OPT are entitled to petition the High Court of Justice against military and state authorities.Footnote ⁸⁹

2. (b) The substantive law that applies includes customary IHL, as well as the humanitarian provisions of the Fourth Geneva Convention, which the state declared it was willing to apply in the territories.Footnote ⁹⁰

3. (c) In addition, Israeli administrative law also applies: ‘The exercise of authorities by the respondents will be examined according to the criteria this court applies in reviewing the acts or omissions of any other arm of the executive branch but, of course, while taking into account the obligations of the respondents that derive from the essence of their role’.Footnote ⁹¹

The Court applied administrative law as an instrument of judicial review of government actions, focusing on procedural rules: exercising legal authority for its intended purpose; granting a fair hearing; reasonableness; proportionality; and so on. The state did not object to the application of Israeli administrative law; similarly, it did not object to the Court's assertion of jurisdiction. In this legal framework, substantial basic rights of the Palestinian population originated in IHL, while procedural rights were grounded in Israeli administrative law.

Although this initial doctrine of administrative law and customary IHL did not change, these sources of law gradually lost their exclusivity as they were joined by other normative sources from the field of human rights. In a lecture on IHL and the Israeli Supreme Court, the former President of the Court, Aharon Barak, described the development of his judicial approach to the territories.Footnote ⁹² According to Barak, although the state agreed to the Court's jurisdiction from the outset, the Court must be convinced that it is indeed empowered with such jurisdiction. Its authority derives from Basic Law: The Judiciary, which authorises the High Court of Justice to provide a remedy for the sake of justice when there is no other legal recourse. The orders of the Court are directed at the state and its agents, whether they are acting inside or outside the state. Barak also described his changing attitude towards IHL, initially seeing it as equivalent to administrative law, focused on the lawful exercise of authority, but gradually coming to see it as constitutional law, anchoring basic rights. Barak emphasised that over the years the legislature could have intervened and limited the Court or the application of IHL, but chose not to do so, concluding that the other branches of government have accepted this doctrine.

This development of the judicial conception from administrative law to constitutional law is reflected in Supreme Court decisions since the late 1980s. In Arjoub v Commander of IDF Forces in Judea and Samaria, the petitioners demanded the establishment of an appellate court over the Israeli military courts in the territories.Footnote ⁹³ The military courts are criminal courts established under Israeli military legislation for Palestinian residents who are criminally charged with offences related to security and public order.Footnote ⁹⁴ Until that time, military law did not permit judicial appeal proceedings, but only authorised the military commander to award clemency or reduce a sentence. The petitioners cited the fact that Israeli law provides a similar right of appeal against military courts operating in Israel.Footnote ⁹⁵ They also relied on IHL and the ICCPR.Footnote ⁹⁶ Despite the fact that Israel had not signed the ICCPR at that time, the Court closely examined the Covenant's directives on the right of appeal, as well as the Universal Declaration of Human Rights (UDHR).Footnote ⁹⁷ In addition, it noted on its own initiative that the right of appeal exists in Israeli constitutional law – not only in the context of military courts, but as a basic right enshrined in Basic Law: The Judiciary.Footnote ⁹⁸ The Court concluded that the right of appeal is not part of customary international law and is therefore not binding, and that none of the sources cited mandated the existence of a military court of appeal with the exception of the ICCPR, which Israel had not joined. Nonetheless, it strongly recommended that the state establish an appellate court, since the right of appeal constitutes ‘a substantive component of fair trial’,Footnote ⁹⁹ which exists at all levels of the court system in Israel and is a constitutional right:Footnote ¹⁰⁰

The Supreme Court thus found that the right of appeal in criminal cases is a fundamental component of a fair trial, despite the fact that Israel is not obligated to ensure it in the territories. It based its conclusion primarily on the importance and status of this right in Israeli constitutional law, which should not stop at the state borders, thus urging the government to exercise the same standard internally and externally:Footnote ¹⁰¹

Following this strong rhetoric and although the petition was denied, Israel established a military court of appeal in the OPT.Footnote ¹⁰²

Another decision from the same period reflects similar trends of using principles from Israeli constitutional law without deciding on their binding force, as well as citing non-binding sources of international law. Mustafa Yusef v Warden of the Central Prison in Judea and Samaria addressed conditions of incarceration in an Israeli prison in the OPT.Footnote ¹⁰³ The Court ruled that every prisoner is entitled to a minimum standard of humane conditions, citing the Standard Minimum Rules for the Treatment of Prisoners by the United Nations.Footnote ¹⁰⁴ It went on to state that the obligation to ensure humane conditions derives from IHL, from ‘the foundations of Israeli administrative law, which accompany all Israeli authorities’, and from ‘the humane and democratic essence of the Israeli regime’.Footnote ¹⁰⁵

In Sajadiya v Minister of Defence the Court heard a similar case pertaining to conditions of incarceration and the transfer of prisoners. The case involved the transfer by Israeli authorities of Palestinian administrative detainees to the Ketziot detention facility in Israeli territory during the intifada (the Palestinian uprising).Footnote ¹⁰⁶ The decision focuses on the relationship between IHL and Israeli law. With regard to the duration of the detention proceedings, the Court compared Israeli law relating to administrative detention with the parallel military legislation in the territories, and stipulated that an effort should be made to apply domestic standards to OPT detainees. It did not apply Israeli constitutional law, but rather conducted a comparative analysis, aspiring to adopt the standards it embodies.Footnote ¹⁰⁷ In a minority opinion, Justice Bach cited the UN Standard Minimum Rules for the Treatment of Prisoners, proposing to apply and enforce that standard by virtue of the state-undertaken obligation to apply the humanitarian provisions of the Fourth Geneva Convention.

In these decisions from the 1980s, the Court had already moved beyond Israeli administrative law towards constitutional law. Both the right of appeal and the right to minimal conditions of incarceration are substantive rights that cannot be derived from administrative law alone. In Arjoub the Court explicitly stated that the right of appeal is not directly applicable, yet recommends its application because, inter alia, it is an Israeli constitutional right; in Mustafa, the Court blurred the distinction between administrative law and constitutional law. In both decisions, the Court referred extensively to non-binding sources of IHRL and IHL. It is not incidental that these decisions deal with due process of law and conditions of detention. Palestinians’ procedural rights of due process have received more protection than other rights, at least partially because of the reliance on administrative law.Footnote ¹⁰⁸ Additionally, such rights seem to be more easily eligible for extraterritorial application.Footnote ¹⁰⁹ Finally, detention and arrest are classic situations in which courts afford more protection as individuals are deprived of liberty and are under the complete control of the state.Footnote ¹¹⁰ Still, these factors do not entirely explain the recourse to international law and constitutional rights, which marks the beginning of a transnational process of doctrinal transformation.

The expansion of the Court's sources of reference and the development of a constitutional approach to the territories continued after Israel enacted the new Basic Laws and signed human rights conventions in the early 1990s. However, this time the state contested the application of these sources. During the formative stage of the early judicial doctrine, the state agreed to the Court's jurisdiction and the use of administrative law and customary IHL, while in the 1990s it explicitly rejected the application of human rights conventions and the Basic Laws to the OPT and sought to stick to the same traditional legal sources.Footnote ¹¹¹ The fact that the question was now a matter of controversy affected the nature of the discussion. In reviewing this discussion below, I devote separate attention to the application of human rights conventions and constitutional law.

3.2. Human Rights Conventions (after 1992)

The decision that relied most significantly on human rights conventions and other sources of IHRL law is HCJ Mar'ab v IDF Commander in the West Bank.Footnote ¹¹² This decision examined the legality of military orders prescribing long periods of detention and preventing detainees from meeting counsel during hostilities. The Court referred extensively to numerous sources from IHRL, but did not rule on the formal application of the conventions in the territories. It concluded that the requirement of ‘prompt’ judicial review of detention is a rule of customary international law and is therefore binding. The Court also determined that domestic Israeli law on this issue is in line with principles of international law. Therefore, the Court explained, it is not necessary to decide on the application of domestic law regarding detention outside Israel. Thus, the Court did not rule on the application of IHRL in the OPT, but applied it in practice – by recognising a customary rule and its consistency with national law.

The decision in Mara'abe and Others v Prime Minister of Israel addressed the legality of the separation wall built by Israel in the territories, and was given after the advisory opinion of the ICJ.Footnote ¹¹³ The ICJ stated, for the first time, that human rights conventions apply and obligate Israel in the OPT, and thus the Israeli Supreme Court explicitly addressed this matter.Footnote ¹¹⁴ The Israeli Court reiterated its basic conception that the applicable law is customary IHL and Israeli administrative law. With regard to human rights conventions, the Court was ready to assume that they apply and, therefore, the rights recognised in them should constitute part of the considerations of the military commander. However, the Israeli Court refrained from explicitly ruling on their binding force, stating that there were no differences between the ICJ opinion and the Israeli Court regarding the applicable law, as opposed to the differences in facts and conclusions. One can again infer the application of the conventions from this statement, though this is not stated explicitly.Footnote ¹¹⁵ The Court, therefore, refrained from stating the de jure application of the conventions, but treated them as a relevant source of law, offering significant arguments and indications for their application. With regard to the exercise of extraterritorial jurisdiction, the Court stated that it stems from the nature of the violated rights:Footnote ¹¹⁶

The Court took one step further in the Public Committee Against Torture case, addressing the practice of targeted killings. Deciding that it cannot determine the overall legality of targeted killings but only evaluate them on a case-by-case basis, the Supreme Court gave its most explicit endorsement of the applicability of IHRL in the territories, complementing IHL when the latter is silent. President Barak describes this in his ruling as follows:Footnote ¹¹⁷

At the same time, the Court ruled that public Israeli law applies in parallel with international law. In particular, the Court saw the demand for proportionality as stemming from both the laws of war and the requirements of Israeli law.Footnote ¹¹⁸ The reference to Israeli law was not limited to administrative law. In the words of Justice Rivlin:Footnote ¹¹⁹

This statement recognises the application of Israeli law, or at least its basic values and principles, in parallel with international law, and leads us straight to a discussion focusing on constitutional rights.

3.3. Israeli Constitutional Law

While the jurisprudence is constantly relying on the rules of Israeli constitutional law, the Court's position is that a decision stating the de jure applicability of the Basic Laws has not been necessary so far.Footnote ¹²⁰ The Court is thus systematically avoiding the question of the formal application of Israeli constitutional law, and blurring its own position, by using open-ended terms such as ‘basic values’, ‘principles’ and ‘the spirit of the Basic Laws’. The indeterminacy of Israeli constitutional law, which is not embodied in a single document, enables further indeterminacy in its application.

A relatively early ruling that harbingered a constitutional approach to the relations between residents of the OPT and the State of Israel was handed down in Murkus v Minister of Defence, which dealt with the distribution of gas masks to OPT residents on the eve of the first Gulf War.Footnote ¹²¹ While protective kits against chemical attacks were distributed to residents of Israel and to Israeli settlers in the territories, they were not distributed to the Palestinian residents of the territories. The explanation provided by the state was that the Palestinians were at lower risk of an Iraqi attack. The Court accepted the petition and ordered the state to distribute protective kits as soon as possible to the entire population of the territories, without distinguishing between Israelis and Palestinians. The legal analysis began with IHL, which imposes an obligation to protect the local population, but did not stop there. The Court held that the military commander was obligated to act with equality vis-à-vis all residents of this region, Israelis and Palestinians, and not to discriminate between them. This obligation was not drawn from IHL (which does not assume the presence of citizens of the occupying power in the occupied territory), but rather from the principles of Israeli constitutional law guaranteeing equality under the law. The Court rejected the argument that the petition was non-justiciable, stating that a claim of discrimination is always justiciable, thus addressing the obligation to act with equality as a given without citing its precise source, as if the ruling pertained to Israeli territory:Footnote ¹²²

Gaza Coast Regional Council v Knesset of Israel challenged the constitutionality of the Israeli disengagement from the Gaza Strip and the evacuation of Israeli settlements. The Court conducted a more in-depth analysis of the applicability of the Basic Laws to the various residents of the territories. It determined that the Basic Laws apply personally to the Israeli citizens living in the territories, and their application to the Palestinian residents was left undecided.Footnote ¹²³ It is interesting to note that two earlier decisions recognised the constitutional rights of Palestinians in the territories. These were both handed down by Justice Procaccia, with her colleagues’ concurrence, but they contradict the more direct, reasoned and explicit decision in the Gaza Coast Regional Council case. In Hass v Commander of IDF Forces in the West Bank it was held that the commander of the region is obligated to protect the constitutional rights, such as freedom of movement and religion, of all of the residents of the region: ‘This obligation applies to him with regard to all of the residents, without distinction based on their identity – Jews, Arabs or foreigners’.Footnote ¹²⁴ In Abu Daher v Commander of IDF Forces in Judea and Samaria – the case of the Palestinian women's orchard with which this article opens – the Court stated, without further reasoning, that the right to property of Palestinian residents of the OPT is a basic constitutional right, protected under Article 3 of Basic Law: Human Dignity and Liberty.Footnote ¹²⁵

As noted, four other justices concurred in these rulings, without providing separate opinions. They were not thoroughly reasoned decisions and, as mentioned, they were subsequently contradicted. Although, according to the rules of precedent, the later ruling in the Gaza Coast Regional Council case is binding, it is important to see that five Supreme Court justices were ready to determine that Palestinian residents of the territories have constitutional rights under the Basic Laws. In addition, this question was not decided negatively in Gaza Coast Regional Council but was left open. There was no formal legal difficulty in deciding that the Basic Laws do not apply sweepingly to all residents of the territories, since Israeli law as a whole was never applied there, in line with the law of occupation. Israeli law was applied personally to Israelis only, and not to Palestinians. The Court refrained from deciding this point, preserving the option of deciding differently in the future.

The rights of Palestinians under Israeli constitutional law were also central to Adalah v Minister of Defence, in which the Court overturned an amendment to the Civil Damages (State Liability) Law, which exempted the state from civil liability for damage that occurred in areas declared as conflict zones, including the West Bank and Gaza Strip.Footnote ¹²⁶ The case invoked constitutional rights under Basic Law: Human Dignity and Liberty, as the petition sought revocation of primary legislation, which is possible only on constitutional grounds and not on IHL or IHRL grounds. Thus, it seemed necessary to determine whether such rights are at all applicable to the residents of the territories. However, the question whether or not this was a case of extraterritorial application of the Basic Law was disputed between President Barak and Justice Grunis.

Barak, writing for the majority, held that the case was not extraterritorial as the rights to civil damages were enforceable in Israeli courts and governed by Israeli law according to private international law and conflict of law rules. The application of the Basic Law was thus territorial. Justice Grunis, in the minority, thought that it was an extraterritorial application of the Basic Laws as the damaging acts occurred beyond Israeli borders; the fact that Israeli law was later applied to the case under the choice of law rules did not alter this fact. Faithful to his extraterritorial approach, Grunis mentioned the doctrine of Act of State, which could exempt the state from liability for extraterritorial acts. However, he did not decide on the extraterritorial application of the Basic Law, since the state had argued that such decision was not necessary, and left the question open for future consideration. The amendment was held to be unconstitutional as it exempted the state from compensation not only for collateral damage during combatant activity, which was already exempt, but for all damage that occurs in conflict zones. The Court held that the amendment indeed violated the constitutional rights to property of the injured parties (Palestinians) and to protection of their person, resulting in disproportionate harm to the injured parties, but according to the majority the decision did not involve extraterritorial application of the Basic Law. The reliance on private international law is an example of how the Israeli legal system makes use of private international law rather than public international law to expand the application of its constitutional law (and thus, its sovereignty), while avoiding outright breaches of the law of occupation and the consequence of de facto annexation that public international law would attribute to such actions.Footnote ¹²⁷

In another case, Kav La'oved [Worker's Hotline] v National Labour Court, the Supreme Court decided that Israeli labour laws apply to Palestinians employed in Israeli settlements.Footnote ¹²⁸ This is ostensibly a decision in the realm of private law and does not involve human rights or constitutional rights. However, the Court's reasoning relied on constitutional rights without directly discussing the application of constitutional law or the Basic Laws to Palestinians. As part of its reasoning for applying the more pro-worker Israeli law, the majority opinion cited the principle of equality for Israeli workers employed at the same workplace. As possible sources for applying the principle of equality, the ruling cites public policy, a basic principle of the laws of the forum (lex fori) as well as the two Basic Laws, without deciding on the question of the binding source of law. Justice Jubran, in his separate opinion,Footnote ¹²⁹ based his argument mainly on the principle of equality, which he explicitly defined as a constitutional right, also enshrined in the UDHR and the conventions of the International Labour Organization. According to Justice Jubran, this judgment is ‘in the spirit of the values of the State of Israel and in the spirit of Basic Law: Human Dignity and Liberty’, stating that any discrimination is prohibited and ‘violates the basic rights of Palestinian residents’.Footnote ¹³⁰ The principle of equality can be seen as a principle of labour law, which mandates equal pay for equal work, but the question presented to the Court was whether Israeli labour law applied at all. Thus, the principle of equality was applied here either as a constitutional principle or as a fundamental principle of Israeli law, again allowing for further application of Israeli law to the OPT while avoiding the issue of occupation/annexation.

In concluding this consideration of the Israeli model, the Supreme Court started by asserting jurisdiction over the OPT, using customary IHL and Israeli administrative law as binding legal sources. Later, it added IHRL and constitutional law as complementary and not clearly binding sources. It thus does not follow either of the models that rely solely on international law or constitutional law, but still implements a constitutional mindset to fill in the gaps in law and jurisdiction, either with law or with ‘values’, ‘moral principles’, ‘humane and democratic essence’, and the like. The lack of a clear and reasoned decision on the application of IHRL/constitutional law is, inter alia, the result of the existence of the earlier model. The early doctrine provided the Court with significant legal tools for conducting judicial review of the government's actions in the territories. By the 1990s, in the absence of a legal vacuum and with its established jurisdiction, the Israeli Supreme Court was able to avoid clear-cut decisions in this area, which is highly contested.

One of the factors guiding the ICJ and the European jurisprudence, which recognised the simultaneous application of IHRL and IHL, is that IHL is in most cases not enforceable on states. This is because there is no court that asserts jurisdiction to render judgment under this law or proceedings in which the injured parties, especially individuals, can be accorded standing and a remedy.Footnote ¹³¹ IHRL, on the other hand, is more enforceable and accessible to individuals through international mechanisms.Footnote ¹³² The non-application of IHRL in these fora would have meant leaving unprotected the rights of individuals who are affected by extraterritorial powers. In Israel, the Court has already established jurisdiction and applied IHL, so the question of the application of the conventions is relevant for determining the substantive rights, and not for establishing jurisdiction. Instead, starting in the late 1980s, human rights conventions were cited as a non-binding source for human rights of Palestinians. Following Israel's ratification of the conventions in 1991, the Court continued to rely on them without stating their de jure application. It was only in the 2006 case of Public Committee Against Torture that the Court established the application of human rights conventions in the territories, but did so without providing substantive reasoning as to the principles underlying this application. The status of Israeli constitutional law in the OPT as well as the relations between constitutional law and IHRL currently remain unresolved. Both Israeli constitutional law and IHRL are examined, alongside the traditional sources of administrative law and IHL as well as basic principles of the Israeli legal system, regardless of whether or not they are binding, without giving much weight to the question of their formal application.

The early doctrine represented a universal approach in stating that Israeli administrative law applied to any Israeli government agent exercising authority extraterritorially: every Israeli soldier ‘carries [Israeli administrative law] in his backpack’.Footnote ¹³³ However, when it came to constitutional law, the Court applied a personal approach, by which Israeli constitutional law applies to Israelis in the OPT but not necessarily to Palestinians in the same territory, a question that was left open. The Court deliberately did not apply a territorial approach at any stage, although it is clear that Israel exercised full effective control over the OPT, because of the annexation implications according to the law of occupation. The Court refrained from conducting a detailed discussion of the policy considerations and principles that would favour or oppose the extraterritorial application of norms. In comparison with the parallel discussions in the European and US courts, the deliberations in the Israeli Supreme Court, with regard to any of the sources of law, are characterised by concreteness, a lack of consistency, policy considerations and legal interpretation of relevant laws and precedents.Footnote ¹³⁴ The question of the legal source of rights beyond the early doctrine remains partially open: constitutional law is applied to citizens beyond state borders; the question of application to non-citizens remains unanswered; the application of human rights treaties was generally recognised, but was not reasoned and did not leave its mark on current jurisprudence. The question of the partial or full application of rights was not even raised.

The Israeli Supreme Court has creatively used private international law and labour law to extend the protection of Israeli law to Palestinians in the OPT, thus blurring the legal boundaries between Israel and the OPT, while avoiding a conflict with principles of public international law and specifically the law of occupation. In this gradual and careful transnational transformation process, the Court has been careful not to make a binding decision to apply the Basic Laws to Palestinians in the OPT, but its decisions have applied some Israeli constitutional rights to Palestinians without declaring a general rule.

The mutual application of constitutional law and international law places Israel along the spectrum between the two ideal type models, but this might not be the only relevant spectrum since IHL and administrative law do not come into play. On this spectrum between international and constitutional law, the latter is more dominant in Israel. All the decisions that apply IHRL also refer to Israeli law, either by comparative analysis or by citing constitutional principles. At the same time, the decisions that rely solely on Israeli law (administrative or constitutional) do not necessarily refer to IHRL.Footnote ¹³⁵ It appears clear that no judicial analysis of human rights obligations can be complete without consideration of domestic constitutional law, which is familiar to judges and parties and routinely exercised by them, enjoys the greatest legitimacy, and thus constitutes the dominant source of the two.Footnote ¹³⁶ International law, therefore, was not used in any case as a single legal source as it is in the ECtHR, but only as a complementary or comparative legal source in addition to Israeli law. This somewhat resembles the uses by the US Supreme Court, although in contrast to the US, the Court recognised human rights treaties as both binding and enforceable.Footnote ¹³⁷ At least de jure, it enables enforcement of human rights conventions, certainly with regard to customary norms and norms that are consistent with Israeli law. Therefore, as the Israeli model continues to crystallise, it will clearly not be identical to any of the monistic models.

It is important to remember that Israeli law has no direct application in the OPT – that is, this type of comparative or analogous examination of Israeli law is not mandated by binding legal doctrine.Footnote ¹³⁸ This type of examination characterises the application of international law within the state via theories of reception or the presumption of compatibility between international and national law, and not extraterritorial application. However, the Court also conducts this same examination with regard to the territories, taking into account Israeli law as a relevant legal source even though it is not formally binding, thus treating the OPT as ‘incorporated’ into Israel.Footnote ¹³⁹

What does this mean in relation to the Israeli model? While the Israeli occupation of the Palestinian Territories dates back to 1967, when annexation was already illegal and most formerly colonised territories achieved independence, the option of annexation was never completely taken off the table. Some segments of Israeli society see the control of the territories as a continuation of the Zionist enterprise to return the Jewish homeland to the Jewish people. Others regard it as a temporary military occupation that should be ended, and see its prolongation as a deviation from Zionism and democracy.Footnote ¹⁴⁰ The Supreme Court continues to maintain the legal framework of occupation, but in the reality of geographical proximity: when hundreds of thousands of Israeli citizens colonise the territories and, on the other hand, tens of thousands of Palestinians work in Israel and thousands of Palestinian prisoners are serving sentences in Israel,Footnote ¹⁴¹ the separation between internal and external fades, and the clear-cut territorial and constitutional questions become blurred.Footnote ¹⁴² The relations between Israel and the territories have been shaped over the years with such intimacy, the legal arrangements being so interwoven and tied to one another, that an analytical discussion of implementing legal doctrines premised on territorial and legal separation is almost impossible. The Court itself has clearly acknowledged this situation in stating: ‘Even if two different sources of authority and different sovereign “hats” are concerned, “One father to us all” (Malachias 2:10), meaning – substantively – the State of Israel supersedes it all’,Footnote ¹⁴³ and on a different occasion:Footnote ¹⁴⁴

The Israeli Supreme Court's pendulum, swinging between international law and constitutional law, reflects the Israeli indecision regarding the status of these territories.