David Kretzmer

• Hebrew University of Jerusalem

The ‘constitutional reform’ planned by the government that assumed power in Israel in December 2022 is not an end in itself. Its aim is to provide the basis for planned policies and actions of the government that are incompatible with Israel's present constitutional order, and that are unlikely to stand up to judicial review before the present judg...

This chapter considers the extent to which the Court has been willing to recognise the applicability of Israel’s constitutional law to actions of the authorities in the Occupied Territories. It further examines the hierarchy in the Court’s case law between Israeli constitutional law and the law of occupation, and the Court’s view on the possibility...

This chapter examines the manner in which the Supreme Court has dealt with the invocation of the Oslo Accords, concluded between Israel and the PLO in the 1990s. It shows that the Court has never upheld petitions by either Israelis or Palestinians, requesting the Court to order the government to refrain from implementing the Accords; to refrain fro...

The generally accepted position today is that international human rights treaties to which an occupying state is a party apply to that state’s actions in occupied territory. The Government of Israel rejects this position. This chapter examines the Court’s view on the issue. The Court often refers to provisions in human rights treaties in its decisi...

This chapter describes the basis for the Court’s jurisdiction over petitions by residents of territory that is not the sovereign territory of Israel, but is ruled under a regime of belligerent occupation. The chapter examines the readiness of the Court to entertain such petitions, given that their subject matter falls within areas that are arguably...

When the IDF took control over the West Bank and Gaza in 1967 it issued a proclamation that the local law would remain in force subject to changes made by military orders. This chapter discusses the Court’s approach to various issues concerning the local law and its relationship with orders promulgated by the military commander, including the scope...

This chapter discusses the Court’s decisions in petitions challenging deportation of Palestinians from the Occupied Territories. The discussion includes the Court’s decision on the mass deportation of 415 people in 1992, which is the last instance in which this measure was used. The chapter provides a critical analysis of the Court’s interpretation...

The Court has held that in using his powers the military commander in occupied territory must be guided by one, or both, of two considerations: military needs and the welfare of the local population. This chapter examines the way in which the Court has interpreted military needs and the welfare of the population, as well as the obligation of an occ...

Under the Oslo Accords land planning and construction in Areas A and B of the West Bank are the responsibility of the Palestinian Authority. This chapter discusses judicial review of planning and building policies and legal arrangements in Area C, which remain Israel’s responsibility. The chapter’s focus is local planning power, the building-permit...

Judicial review by Israel’s Supreme Court over actions of Israeli authorities in the territories occupied by Israel in 1967 is an important element in Israel’s legal and political control of these territories. The Occupation of Justice , Second Edition, presents a comprehensive discussion of the Court’s decisions in exercising this review. This rev...

Palestinian residents of the Occupied Territories are not nationals of the occupying power. As long as they remain residents of the Territories they are entitled to remain there. But what is the position if they leave the Territories for an appreciable period of time? Do they retain their residence status, and the consequent right to return to thei...

This chapter examines the way in which the Supreme Court has handled petitions regarding the construction in the West Bank of the separation barrier and its associated regime (the Seam Zone). The Court upheld the legality of the construction of the barrier as a whole, but in specific cases mitigated the harm caused to individuals. As opposed to the...

This chapter introduces the third part of the book, which deals with security measures. It describes the security concerns that underpin the Court’s decisions. It shows that while the Court never examines the legitimacy of establishing settlements, the Court later regards the need to protect the settlers as legitimate grounds for restricting the ri...

One of the main security measures employed by the military authorities in the Occupied Territories has been internment, outside the criminal process. The main form of internment, employed since the beginning of the occupation, has been administrative detention. This form of detention was not considered appropriate when there were mass detentions of...

This chapter traces the Court’s decisions in petitions challenging orders to demolish the family homes of Palestinians who have been involved in hostile activities. It exposes the Court’s failure to adequately examine the legality of this sanction under international law, the wide interpretation the Court has given to the provision that sets the le...

In 2005 Israel withdrew its forces and civilian population from Gaza, and declared that it no longer exercises effective control over the area. At the same time Israel still maintains control over many aspects of life in Gaza, including movement of persons and passage of goods and services. This chapter examines the Court’s approach in petitions re...

As nationals of the occupying power Israeli settlers are not ‘protected persons’ under GCIV. While the Court has recognised this, it has held that for the purposes of the Hague Regulations the settlers are part of the local population in the Occupied Territories for whose benefit the military commander must act. This chapter criticises this view, w...

This chapter discusses cases concerning the establishment of Israeli settlements in the Occupied Territories. As the Court has ruled that the settlement project itself is not justiciable, the main part of the chapter traces the cases on use of land for settlements. It discusses the Elon Moreh case in which the Court held that seizure of private lan...

This chapter examines the Court’s decisions on the applicability of the belligerent law of occupation to the Occupied Territories and the enforcement of that body of law by the Court. It explains the distinction the Court has drawn between customary international law and treaty law. The chapter shows that the Court regards the Hague Regulations as...

This chapter examines the Court’s approach in petitions challenging means and methods of warfare and IDF actions during ongoing hostilities. It shows that while the Court has rejected the government’s argument that such petitions are by their very nature non-justiciable, the scope of review in such cases is narrow. The chapter argues that in cases...

This chapter examines the Court’s review of the practices employed by the authorities in interrogating Palestinians suspected of involvement in hostile activities. In 1999 the Court delivered a judgment prohibiting use of force and other methods of pressure in interrogations. The chapter discusses the Court’s response to allegations of torture or o...

One of the unique features of Israel's legal, military, and political control over the Occupied Palestinian Territories (OPT) has been the review by the Supreme Court of Israel of the actions and decisions of the authorities in those territories. Sitting as a High Court of Justice that has the competence to review the actions of all persons exerci...

The assumption of this article is that when a state is involved in an international armed conflict it may employ lethal force against combatants of the enemy unless they are hors de combat. Hence, even when it would be feasible to do so, it has no duty to apprehend enemy combatants rather than use force against them. Does this same norm apply in no...

Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-op...

While force used by a state in self-defence must meet the demands of proportionality there is confusion over the meaning of the term in this, jus ad bellum, context. One source of confusion lies in the existence of two competing tests of proportionality, the 'tit for tat' and the 'means-end' tests. Since the legality of unilateral use of force by a...

This chapter describes the way in which laws have been used and, in effect, misused, as a system of control, discrimination and exploitation of the occupied territories and their Palestinian residents. Thus in establishing settlements and exploiting the resources in the occupied territories for the good of Israel and Israeli Jews, the formal legal...

Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court's jurisprudence in these cases....

THE CONSTITUTIONAL DEBATE IN ISRAEL

Introduction. The case study that forms the starting point for this analysis involves use of lethal force by one State (A) against a non-state actor who is currently in the territory of another State (B). State A claims that the said non-state actor is involved in terrorist activities directed against it or its citizens, and that State B has failed...

The Status of International law in the Domestic Legal System Introduction: The Constitutional and Legal System of Israel It is impossible to discuss the role of international law in the jurisprudence of Israel's courts without some understanding of the country's constitutional and legal system. This introduction will be devoted to a short descripti...

The first step in application by treaty of IHL norms to non-international armed conflicts, adoption of Common Article 3 of the Geneva Conventions, 1949, was taken before the dramatic development of international human rights law (IHRL). The assumption was that unless international humanitarian law (IHL) norms were applied to such conflicts, the way...

This is a chapter on Israel for a forthcoming book that provides a comparative perspective on the role of domestic courts in treaty application.

The protection of noncombatants from deadly violence is the centrepiece of any account of ethical and legal constraints on war. It was a major achievement of moral progress from early modern times to World War I. Yet it has been under constant attrition since - perhaps never more so than in our time, with its ‘new wars’, the spectre of weapons of m...

A constitutional experiment in which a parliamentary system of government under proportional representation was combined with the direct election of a prime minister — the system prior to 1992 — the political context of the 1992 reform — the unintended consequences of the reform in practice — the return to a pure parliamentary form of government, c...

Whether a state that has been subject to attacks by a transnational terrorist group may target active members of that group who are not in its jurisdiction has caused controversy. Some refer to targeted killings of suspected terrorists as extra-judicial executions; others claim they are legitimate acts of war. The author examines the legality of su...

This article examines those issues relating to human rights in Israel that the writer regards as unique features of the Israeli situation. The writer argues that one cannot divorce issues of human rights in Israel proper from human rights issues in the Occupied Territories (OT). He then proceeds to outline the legal regime for protection of human r...

Ever since the occupation of the West Bank and Gaza began in 1967, the Supreme Court of Israel has entertained petitions challenging actions of the Israeli authorities in those territories. The Court has delivered dozens of judgments in which it addressed questions of international humanitarian law in a situation of belligerent occupation. For a lo...

In recent years the international community has continued to adopt a flow of both binding and non-binding human rights instruments. But despite the significant domestic impact of these developments, most of the literature on human rights has focused on international procedures and institutions, to the neglect of domestic legal arrangements. In this...

The origins of this work lie in an attempt by Israeli lawyers to describe and analyse the remarkable efforts of the Supreme Court of Israel to intervene in all kinds of government actions on behalf of basic civil rights and the preservation of the rule of law. Working essentially with the basic English common law tools of constitutional and adminis...

Until the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty were enacted in 1992 Israel had no bill of rights. Pursuant to the 1950 Harari Resolution, according to which Israel’s formal constitution would be drawn up in a piecemeal fashion by a series of basic laws, basic laws were enacted covering virtually all aspects...

In 1992 the Israeli Knesset enacted the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Freedom. These basic laws, as chapters in Israel's emerging formal Constitution, have opened the way for judicial review of parliamentary legislation that violates human rights. Opposition from some political quarters prevented inclusion in...

The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law? - Volume 26 Issue 2 - David Kretzmer

Political agreements are an integral part of the political system in Israel. For various reasons — mainly the proportional representation electoral system and the existence of a “third bloc” of religious parties that do no fit into the centre-right and centre-left political alliances — no political party has ever enjoyed an absolute majority in the...

It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as “Israel common law”. I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revo...

Intent in Criminal Libel: Statutory Interpretation or Judicial Imagination? - Volume 21 Issue 3-4 - David Kretzmer

The right of citizens to demonstrate has been in the news of late. Recent events have led many citizens in Israel to take to the streets as a means of expressing their opposition to, and in some cases support of, government policies, actions or leaders. Following a pattern which is not unusual in Israel, some aspects of this issue have found their...

When an industrial concern pollutes the environment thereby interfering with neighbouring homeowners' use and enjoyment of their property, may the homeowners enjoin the pollution even where compliance with an injunction could force the polluting industry to stop production? Faced with this kind of question the initial reaction of people concerned w...

Rescission for Delay in Performance - Volume 13 Issue 2 - David Kretzmer

No-Fault Comes to Israel: The Compensation for Victims of Road Accidents Law, 1975 - Volume 11 Issue 2 - David Kretzmer

The Costs of Accidents: A Legal and Economic Analysis. By Guido Calabresi. [Yale University Press, New Haven and London. 1970, 340 pp.] - Volume 9 Issue 1 - David Kretzmer

Many aspects of the United States's armed conflict with al Qaeda and associated forces have been intensely debated by legal scholars and policymakers, yet one important question has thus far been almost completely ignored: Where, if at all, does the law of neutrality fit into the legal framework governing the conduct of this armed conflict? I argue...

Thesis (D. Jur.)--York University, 1975. Includes bibliographical references (leaves [421-450]). Microfiche of typescript.