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Hebrew University
Michael M Karayanni, Faculty of Law, Hebrew University / Choice of Law Under Occupation: How Israeli Law Came to Serve Palestinian Plaintiffs

Electronic copy available at: http://ssrn.com/abstract=1299541
1
Choice of Law under Occupation: How Israeli Law
Came to Serve Palestinian Plaintiffs
Michael M. Karayanni*
Abstract
Conflict of laws doctrines can evolve in a manner that accommodates special interjurisdictional relations, such as federal and confederate schemes of government.
Apparently, such doctrines also evolve in order to accommodate yet another mode of inter-jurisdictional relation, namely that of occupation. This article seeks to explore the molding of Israeli choice-of-law doctrine in respect of civil disputes implicating litigants from the West Bank and the Gaza Strip when these territories were still under total Israeli occupation. Beyond the special conflicts concerns articulated in this context, the articles reveals how choice-of-law fairness concerns could be of special value in the context of territorial occupation – a direction in which two recent Israeli Supreme Court decisions seems to be heading.
Introduction
Chapter I. The Legal Status of the OPT and Israeli Conflict of Laws
A. The 1967 Six-Day War and the Emergence of the OPT as a Separate
Jurisdiction
B. Internalizing the Conception of the OPT as a Separate Jurisdiction in Israeli Conflict of Laws Doctrines
Chapter II: The Israeli Settlement Program and the Creation of “Legal Dualism” in the OPT
A. The Genesis and Evolution of the Israeli Settlement Program
B. The Settlements and Their Legal Accommodations
C. The Ramifications of “Legal Dualism” on Israeli Conflict of Laws Doctrines
Chapter III: Winds of Change
A. Yanon v. Qara’an
B. Amutat Kav La-Oved v. National Labor Court in Jerusalem
C. Conclusions from Qara’an and Amutat Kav La-Oved
D. The Principle of Fairness in the Choice-of-Law Process
Conclusion
* Director, The Harry and Michael Sacher Institute for Legislative Research and Comparative Law; Edward
S. Silver Chair in Civil Procedure, Faculty of Law, Hebrew University of Jerusalem. Work on this topic began in the framework of the “Rule of Law under Pressure” seminar at the School of Social Science, Institute for Advanced Study, Princeton, New Jersey, where I was a Member during the 2007/2008
academic year. I would like to thank the participants of the seminar for their valuable comments, and especially Dr. Sari Wastell for providing me with a most valuable reference. I would also like to thank the Friends of the Institute for Advanced Study for their support.
Electronic copy available at: http://ssrn.com/abstract=1299541
2
…if we do not remind ourselves that a better future is possible we may never find
the strength we will need to get there.1
Introduction
Choice-of-law theory and methodology has known major upheavals throughout history.2
As a result, different choice-of-law rules have been offered to enable us to determine the
governing law in certain private disputes. But as choice-of-law rules were modified in
order to accommodate the evolving theory, another variable in the choice-of-law matrix
drew attention, namely that of the jurisdictional kinship between the laws that came in
conflict. For indeed the jurisdictions involved need not be those of two or more sovereign
states.3 Such is the case in a federal scheme of government, where the separate states are
united and maintained by a federal umbrella.4 And precisely because of this federal
kinship among states, intra-federal choice-of-law inquiries, as well as others pertaining to
adjudicative jurisdiction and enforcement of judgments, were made subject to certain
1 DAVID GROSSMAN, THE YELLOW WIND 222 (1988, afterword 2002, trans. Haim Watzman).
2 See Friedrich K. Juenger, A Page of History, 35 MERCER L. REV. 419 (1984); Hessel E. Yntema, The Historic Bases of Private International Law, 2 AM. J. COMP. L. 297 (1953).
3 It is interesting to note that at one point A.V. Dicey defined a “country” for conflict of laws purposes as “the whole of a territory subject under one sovereign to one body of law.” However, later on he substituted “law district” for country, probably because not all conflicts inquiries indeed involve “countries” in common parlance. See LAWRENCE COLLINS (GENERAL EDITOR), DICEY, MORRIS AND COLLINS ON THE
CONFLICT OF LAWS 30 (14th Ed. 2006). See also ARTHUR NUSSBAUM, PRINCIPLES OF PRIVATE INTERNATIONAL LAW 5-6 (1943).
4 See e.g., KIRSTY J. HOOD, CONFLICT OF LAWS WITHIN THE UK (2007); MICHAEL TILBURY ET. AL., CONFLICT OF LAWS IN AUSTRALIA 9-12 (2002); J.-G CASTEL, CANADIAN CONFLICT OF LAWS 2-3 (3rd ed.
1994); ALBERT A. EHRENZWEIG, A TREATISE ON THE CONFLICT OF LAWS 16 (1962). Indeed, in terms of the historical development of the discipline of conflict of laws generally, intra-territorial conflicts, such as among cities, have contributed substantially to the evolution of different conflict of laws doctrines. See e.g.,
Alex Milles, The Private History of International Law, 55 INT’L & COMP. L.Q. 1, 4-12 (2006).
3
norms designed to accommodate the needs and interests of the federal system.5 Similarly,
confederate schemes of government have also entailed the design of special bodies of
norms to accommodate conflict of laws issues among the confederate states. The most
notable example of this in recent history is the European Union. 6 So as separate
jurisdictions become more interdependent and connected to each other, conflict of laws
principles seem to evolve alongside in order to accommodate the special interjurisdictional settings, all done in tandem with the theoretical evolution of conflicts
theory itself.7
A form of dependency between jurisdictions that seem to influence conflict of
laws doctrine is that of occupation. Since under international law an occupied territory is
presumed to form a separate jurisdictional entity from that of the occupying power, but at
the same time is controlled and administered by it until an international settlement is
reached,8 inter-jurisdictional conflicts between occupier and occupied seem also to be
guided by special considerations. But unlike the extensive research devoted to the
5 See RUSSEL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 585 (4th Ed. 2001); W. Müller-Freienfels, Conflicts of Law and Constitutional Law, 45 U. CHI. L. REV. 598 (1978). Note, however, that in American conflicts jurisprudence it was not always clear whether a distinction is necessary between the interstate and the international context; id. at 599. Moreover, in historical terms, conflicts rule developed in
a federal context that took account of the rules developed in the international context. See Yntema, supra note 2, at 299. This amalgamated American approach has been criticized, for in some spheres courts need to make distinctions between the interstate and the international context. Therefore, for other states where the generally assumed context for conflict of laws inquiries is the international context, much of American conflict of laws doctrines are unusable because they are derived from federal concerns. See Mathias
Reiman, Domestic and International Conflicts in the United States and Western Europe, in INTERNATIONAL CONFLICT OF LAWS FOR THE THIRD MILLENNIUM, ESSAYS IN HONOR OF FRIEDRICH K. JUENGER 109, 113-114 (Patrick J. Borchers & Joachim Zekoll ed., 2001); Mathias Reiman, A New Restatement – For the International Age, 75 IND. L.J. 575, 576 (2000) . See also Eugene F. Scoles,
Interstate and International Distinctions in Conflict of Laws in the United States, 54 CAL. L. REV. 1599
(1966).
6 See PETER STONE, EU PRIVATE INTERNATIONAL LAW, HARMONIZATION OF LAW 3-10 (2006); Bernd von Hoffmann, The Europeanization of Private International Law, in EUROPEAN PRIVATE INTERNATIONAL LAW 13 (Bernd von Hoffmann ed., 1998).
7 See ROBERT LEFLAR ET AL., AMERICAN CONFLICTS LAW 9-10 (4th ed., 1986).
8 See EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 3-8 (1993) [hereinafter BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION].
4
implications of the federal and confederate structure of government on conflict of laws doctrine, those of occupation have only rarely been examined. For the most part, occupation has been the object of analysis for public international law inquiries, especially the norms pertaining to the authority possessed by the occupying power during the period of occupation, and the observance of international norms pertaining to human rights.
It is easy to understand why conflicts methodology has largely disregarded the
condition of occupation, which almost by definition is presumed to be a temporary state,9
and therefore generates no significant body of conflicts proceedings worthy of analysis or
theorizing. However occupation, and other abnormal inter-jurisdictional relations, can
become protracted.10 Over time, interactions among private entities from the different
jurisdictions begin to amass, especially if the two jurisdictions lie in geographical
proximity to each other. In due course such interactions will make it necessary to address
conflicts issues that arise among these jurisdictional entities and bring courts to assess the
significance of the relationships between them on the conflicts issue at hand, be it choice of- law or any other matter.
This article forms part of a larger research endeavor to analyze the development
of Israeli conflict of laws doctrines in respect of the Occupied Palestinian Territories
(OPT) of the West Bank and the Gaza Strip – territories that have been traditionally
considered as jurisdictional entities separate from the State of Israel for conflict of laws
9 DORRIS A. GRABER, THE DEVELOPMENT OF THE LAW OF BELLIGERENT OCCUPATION 1863-1914 – A HISTORICAL SURVEY 37 (1949).
10 Adam Roberts, Prolonged Military Occupation: The Israeli Occupied Territories Since 1967, 84 AM. J. INT’L L. 44, 47 (1990).
5
purposes, albeit controlled by it. 11 Over forty years have now passed since these
territories were first captured by Israel in the 1967 Six-Day War, making their occupation
the longest in modern history.12 Within this period private interactions among Palestinian and Israeli entities took place in different fields and in substantial numbers, especially in light of the fact that as time went by the OPT became more and more economically dependent on Israel. 13 In addition, Israel encouraged massive settlement of Israeli civilians in the OPT and accommodated this population, inter alia, by having Israeli law govern their legal interactions as if they were ordinary residents of Israel itself. As a result, Israeli courts dealt time and again with conflict of laws inquiries pertaining to OPT-related civil disputes, whether in the context of personal jurisdiction,14 the propriety of issuing provisional relief and other enforcement measures in respect of property located in the OPT,15 resolving choice-of-law conflicts between Israeli and OPT local law,16 or recognition and enforcement of OPT judgments in Israel.17
11 See Moshe Drori, The Israeli Settlements in Judea and Samaria: Legal Aspects, in JUDEA, SAMARIA AND GAZA: VIEWS ON THE PRESENT AND THE FUTURE 44, 71-72 (Daniel J. Elazar ed., 1982).
12 Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 HARV. INT’L L.J. 65, 67 (2003).
13 See Graham-Brown, The Economic Consequence of Occupation, in OCCUPATION: ISRAEL OVER PALESTINE 167 (Naseer H. Aruri ed., 1984); BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8 at 123-129.
14 See Michael M. Karayanni, The Quest for Creative Jurisdiction: The Evolution of Personal Jurisdiction Doctrine of Israeli Courts towards the Palestinian Territories, 29 MICH. J. INT’L L. (Forthcoming 2008).
15 See CA 179/77 Bank Leumi Le-Yisrael Ltd. v. Hirschberg [1978] IsrSC 32(1) 617 (authorizing the issuing of a provisional attachment order by an Israeli court against a branch of an Israeli bank operating in the town of Bethlehem on the West Bank); P.C.A 61/89 Bank Ha-Poalim v. Dakas [1989] IsrSC 54(1) 201
(limiting the authority of the Israeli Execution Office to issue a permanent attachment order in respect of land situated in Gaza in the course of a judicial proceeding aimed at enforcing an Israeli court issued judgment); PCA 383/86 Batarsa v. A’yash, [1987] IsrSC 41(2) 100 (dealing with the propriety of issuing a provisional attachment order in respect of land situated in the OPT).
16 See e.g., CA 6860/01 Hamadah v. HaMagar Hisraeli, [2003] IsrSC 57 (3) 8 (dealing with the classification of the limitation period on road accidents under local OPT legislation as procedural or substantive)
17 See CA 490/88 Dr. Anbaa Bassilious v. Adila [1990] IsrSC 44(4) 397 (dealing with the recognition of a judgment issued by the courts of Ramallah and its res judicata effect in a civil proceeding initiated before an Israeli court); CA 1227/97 Sile’it Ha-Adomim v. Ibrahim, [1999] IsrSC53(3) 247 (dealing with the
6
Analyzing the special conflicts methodology and policy considerations resorted to
in all of these spheres is beyond the scope of the present study. The focus of this study is
on two recently rendered decisions by the Israeli Supreme Court, Yanon v. Qara’an,18
and Amutat Kav La-Oved v. National Labor Court in Jerusalem,19 in which the Court
refashioned its choice-of-law rules in torts and employment contracts and then applied
these new rules in respect of private claims filed by Palestinian plaintiffs against Israeli
defendants who operated businesses in Israeli settlements in the OPT. The end result in
both of these cases was the application of Israeli law to these civil claims. This resolution
was by no means to the detriment of the Palestinian plaintiffs; on the contrary – the
Palestinian litigants argued for the application of the of Israeli law while the Israeli
defendants, most of whom were members of an Israeli settler corporation operating in the
OPT, argued against the application of Israeli law, seeking the application of West Bank
Jordanian law instead. Evidently, the parties involved opted for a choice-of-law
resolution designed to maximize each one’s own interests, irrespective of the political
implications of each side’s argument, for in both rulings the application of Israeli law left
the Palestinian plaintiffs better off financially than if they were governed by West Bank
law.
Such a setting is not foreign to the realm of conflict of laws. The quest of litigants
to maximize their own individual interests, and the idea of “forum shopping”, is one of
long standing in cases of conflict of laws. This quest is one of the main reasons behind
the development of the modern doctrine of forum non conveniens, namely, to restrain a
recognition of an inheritance order issued by a Shari’a court sitting in Jerusalem in respect of land situated in the OPT).
18 CA 1432/02, [2004] IsrSC 59(1) 345.
19 HCJ 5666/03 (Forthcoming).
7
litigant’s ability to unjustifiably bring to the adjudication of a case in a forum particularly
advantageous to the litigant.20 Similarly it has been argued that multi-lateral choice-of law rules such as identifying the law of the place where the tort took place (lex loci delicti) as the governing law as opposed to unilateral choice-of-law rules, such as that favoring the application of forum law (the lex fori approach) are also efficient in deterring forum shopping, for a multi-lateral choice-of-law rule is supposed to identify the same law as the governing law no matter where the adjudication takes place.21 What is nonetheless peculiar about these two decisions is their historical and methodological significance in the development of Israeli choice-of-law rules in OPT-related civil actions. The decisions represent a stark departure from the traditional methodology that dominated Israeli conflict of laws, including its choice-of-law policies in such actions. Until recently the trend in choice-of-law analysis was to accommodate as much as possible the official Israeli policy towards the OPT, under which the Palestinian population was to be governed by local OPT law at least in respect of causes of action that originated in the OPT. It was no surprise therefore, that the Israeli Attorney General’s Office explicitly argued in Amutat Kav La-Oved for the application of OPT law to the claims filed by the Palestinian plaintiffs. Especially entrancing was the Israeli Supreme Court’s resorting to notions of “public policy” and the “sense of justice of Israeli society” in order to back its choice of Israeli law. For until these decisions were rendered the institutional ranks
20 See MICHAEL KARAYANNI, FORUM NON CONVENIENS IN THE MODERN AGE 132-145 (2004).
21 Some doubts were cast, however, on whether this is so, given the fact that the specific forum undertaking the choice-of-law inquiry could possibly characterize the choice-of-law issue as belonging to another sphere and therefore governed by another set of choice-of-law rules. Thus, a forum could apply the choice of- law rules of contracts rather than of torts, which is a priori governed by the law of the place of contract.
These means are often used to avoid a particular choice-of-law resolution. Similarly, such a forum could also resort to doctrines such as renvoi and public policy in order to attain the desired result. See FRIEDRICH K. JUENGER, CHOICE-OF-LAW AND MULTISTATE JUSTICE 70-87 (special ed. 2002); FRIEDRICH K. JUENGER,
SELECTED ESSAYS ON THE CONFLICT OF LAWS 114 (2001).
8
representing Israeli society, especially the Israeli Government and the Israeli legislature
(the Knesset), had intentionally created the legal design whereby the local Palestinian
population of the OPT was to be governed by OPT law instead of Israeli law, at least
when it came to civil claims based on incidents that took place in the OPT.
In spite of the weakness of the policy consideration provided by the Court, I
believe that the Court was right to draw on notions of fairness in order to buttress its
position. However, unlike the Court’s avenue of reasoning, this notion of fairness is to be
found in the choice-of-law process itself, rather than in general notions of justice and
public policy of society at large. The main argument put forward here is that it is fair to
have the Israeli party be burdened by the application of Israeli law rather than the
Palestinian party be burdened by the application of OPT law, when indeed such is the
effect, because for as long as occupation persists in the OPT, it is the Israeli party that
enjoys access to the political process that produces the burdening law and in whose
power it is to lighten this burden, while the Palestinian party is powerless in this respect. I
furthermore argue that such fairness concerns that have generally received only scant
attention in choice-of-law theory are particularly helpful in choice-of-law inquiries in the
context of occupation, especially when the occupied population has little or no access to
the political process.
In order to understand the significance of the doctrinal leap undertaken by the
Israeli Supreme Court in Qara’an and Amutat Kav La-Oved, it is essential first to present
the methodology that dominated Israeli choice-of-law thinking in OPT-related civil
actions. I take up this inquiry in Chapters I and II. Chapter I elaborates how, after the
1967 Six-Day War, the OPT emerged as a separate jurisdictional entity for Israeli conflict
9
of laws purposes, but one that was devoid of any foreign sovereignty. As a result, Israeli
conflicts doctrine developed in a manner that internalized the fact that the OPT were
under Israeli control and that Israeli conflicts interests should eventually triumph. Chapter
II exposes another important dimension that had a substantial effect on Israeli conflicts
doctrine, that of the presence of Israeli settlements on the OPT. Israeli settlers in the OPT
were to a large part governed by Israeli law, while the indigenous Palestinian population,
the majority in the area, was to remain governed mostly by Jordanian law in the West
Bank and British Mandatory law in the Gaza Strip. This reality came to be called “legal
dualism”, to signify that one jurisdictional entity proceeds according to two different
legal systems that govern two different groups, the Palestinian residents of the OPT on
the one hand and the Israeli settlers in the OPT on the other.22 This state of affairs was
also internalized by Israeli choice-of-law rules, for when the plaintiffs were Palestinians
and the defendants were Israeli settlers, the claims were governed by OPT law, even
when the cause for litigation occurred in an Israeli settlement in the OPT, where Israeli
law obtains for Israeli citizens.
This line of reasoning took a battering in the two Israeli Supreme Court cases of
Qara’an and Amutat Kav La-Oved, for in both cases the OPT, at least in those parts
where Israeli settlements exist, were no longer treated as a separate jurisdictional entity
for choice-of-law purposes, and Palestinian plaintiffs were governed by Israeli law if and
when their cause of action originated in such Israeli settlements. In Chapter III, I offer an
in-depth look into the legal analysis and policy considerations offered in these two
decisions. This inquiry, however, reveals the considerations offered by the Court to be
22 EYAL BENVENISTI, LEGAL DUALISM: THE ABSORPTION OF THE OCCUPIED TERRITORIES INTO ISRAEL 3-4
(1989) [hereinafter BENVENISTI, LEGAL DUALISM].
10
unconvincing, although aimed at attaining what can be considered a just and fair result. I
therefore offer in the same chapter a choice-of-law analysis based on fairness
considerations that can assist us in better understanding the doctrinal innovation in both
these cases, and can lend doctrinal support for the Court’s decision.
Before I begin my analysis, one major clarification is in order. Since the initiation
of the Oslo Peace Process in 1993 much has changed in the jurisdictional nature of the
OPT.23 The Palestinian Authority, a semi-sovereign Palestinian entity, was established in
the OPT with jurisdiction over the vast majority of the Palestinian population. In addition, Israel has withdrawn its forces from the Gaza Strip and dismantled all Israeli settlements there. These developments already have implications on Israeli conflicts doctrines. This inquiry, however, is primarily concerned with Israeli conflict of laws, in particular with choice-of-law methodology as it developed when the entire West Bank and the Gaza Strip were under total Israeli control.
Chapter I. The Legal Status of the OPT and Israeli Conflict of Laws
A. The 1967 Six-Day War and the Emergence of the OPT as a Separate Jurisdiction
The 1967 Six-Day War has had an immense impact all over the Middle East and far
beyond.24 But no other relations have been more affected, defined or rather re-defined
than Israeli-Palestinian relations. In the wake of the Six-Day War Israel came to occupy
two regions that were, like Israel itself, once part of Mandatory Palestine, inhabited at the
23 See e.g., THE ARAB-ISRAELI ACCORDS: LEGAL PERSPECTIVES (Eugene Cotran, Chibli Mallat & David Stott eds., 1996); Peter Malanczuk, Some Basic Aspects of the Agreement between Israel and the PLO from the Perspective of International Law, 7 EUR. J. INT’L L. 485 (1996); Jill Allison Weiner, Comment, Israel, Palestine and the Oslo Accords, 23 FORDHAM INT’L L.J. 230 (1999); GEOFFREY R. WATSON, THE OSLO ACCORDS: INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN PEACE AGREEMENTS (2000).
24 TOM SEGEV, 1967, ISRAEL, THE WAR, AND THE YEAR THAT TRANSFORMED THE MIDDLE EAST (2005).
11
time solely by Palestinian residents: the West Bank and the Gaza Strip. Prior to the war,
the West Bank was considered by Jordan to be part of its sovereign territory under the
Armistice Agreement of 1948, and the Gaza Strip was under Egyptian military
government, but not part of Egypt. These regions are still controlled in some form or
other by Israel to the present day. Two other regions occupied by Israel in the Six-Day
War, the Golan Heights and the Sinai Peninsula, have since been legally transformed: by
virtue of explicit legislation the Knesset (the Israeli parliament) annexed the Golan
Heights to Israel in 1981,25 thereby making this territory, from the point of view of Israeli municipal law, part of the sovereign territory of the State of Israel.26 The Sinai Peninsula on the other hand was returned to Egypt as part of the peace agreement between the countries,27 thereby regaining its pre–1967 War status as an integral part of sovereign Egyptian territory.28 The primary purpose of this chapter is to illuminate the nature of the jurisdictional legal entity of the OPT as it emerged since 1967. This inquiry is primarily taken from the point of view of Israeli conflict of laws.
It is necessary in undertaking this inquiry to refer first to the status of East
Jerusalem. Within days after the end of the 1967 War the government of Israel decreed to
extend Israeli law and administration to that part of the city.29 In spite of the fact that this
25 Golan Heights Law, 5742-1981 translated in 36 L.S.I. 7 (1981); 21 I.L.M. 163 (1982).
26 Though some uncertainties remain as to the exact meaning of “annexation”, see Leon Sheleff, The Application of Israeli Law to the Golan Heights Is Not Annexation, 20 BROOK. J. INT’L. L. 333 (1994);
Asher Maoz, Application of Israeli Law to the Golan Heights Is Annexation, 20 BROOK. J. INT’L L. 355
(1994).
27 Camp David Agreements, Sept. 17, 1978, Egypt-Isr.-U.S., 17 I.L.M. 1466 (1978).
28 See e.g., Roberts, supra note 10,at 59-60; Farooq Hassan, The Legal Status of the United States’ Involvement in the Camp David Peace Process, 16 VAND. J. TRANSNAT’L L. 75 (1983).
29 The Knesset, at the government’s insistence, enacted an amendment to the Law and Administration Ordinance, 1 LSI 7 (1948), under which it was provided that the law, jurisdiction and administration of the
State would henceforth apply to any part of the Land of Israel designated by the Government. For the text of the Amendment, see 21 LSI 75 (1966-67). Subsequently the government issued a decree applying the Israeli law, jurisdiction and administration in East Jerusalem. See DAVID KRETZMER, THE OCCUPATION OF
JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES 6 (2002). To legally bind
12
was seen as controversial by the international community,30 Israeli courts accepted its
validity, henceforth considering East Jerusalem part of the sovereign territory of the State
of Israel and governed by Israeli municipal law – a status identical to that of any other
territory inside the so-called Green Line,31 Israel’s de facto boundary as drawn by the
armistice agreements ending the 1948 Arab-Israeli War.
As to the rest of the OPT, their status first seemed to be in a sort of a legal limbo.
Initially Israel considered these territories as occupied territories under international law
thereby accepting the norms pertaining to belligerent occupation relevant to their
administration. However, this position was soon to change.32 Apparently because of its
own political concerns, Israel eventually contested characterizing the OPT as “occupied
territories”. 33 The argument was based on the working assumption of the Geneva
Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (article
2),34 that a territory is to be regarded as “occupied” only if it belonged to a “high
contracting party” when it was captured.35 Since on the eve of the Six-Day War neither
Israel’s attachment to a united Jerusalem, the Knesset enacted in 1980 the Basic Law: Jerusalem, Capital of Israel, 34 LSI 209 (1979-80).
30 See Roberts supra note 10, at 60 (indicating that the international community continued to view East Jerusalem, and the Golan Heights for that matter, as occupied territories, their official Israeli annexation notwithstanding).
31 See CA 434/79 Graetz v. Dajani, [1981] IsrSC 35(2) 350, 353-4. Though in terms of governing law, rights vested in parties according to the pre-existing legal system were to be recognized under Israeli law.
Id.
32 RAJA SHEHADEH, OCCUPIER’S LAW, ISRAEL AND THE WEST BANK xi-xii (Revised ed., 1985).
33 See THE QUESTION OF THE OBSERVANCE OF THE FOURTH GENEVA CONVENTION OF 1949 IN GAZA AND THE WEST BANK INCLUDING JERUSALEM OCCUPIED BY ISRAEL IN JUNE 1967 (The United Nations, a report
prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the
Palestinian People, 1979); Richard Ober, Note, Current Israeli Practices and Policies in the West Bank and
the Gaza Strip: A Historical and Legal Analysis, 10 B.C. THIRD WORLD L. J. 91, 101-103 (1990).
34 Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].
35 Article 2 of the Fourth Geneva Convention provides: “In addition to the provisions which shall be implemented in peace-time, the present convention shall apply to all cases of declared war or any of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them…. The Convention shall also apply to all cases of partial or total
13
the West Bank nor the Gaza Strip, so the argument went, were formally part of the
sovereign territory of a “high contracting party”, they could not be regarded as “occupied
territory” under the Convention. 36 In spite of this assertion, the Israeli government
maintained that it was willing to abide by the humanitarian provisions of the Fourth
Geneva Convention, thereby making the applicability of these provisions a moot issue as
far as Israeli domestic law was concerned.37 But in light of the official Israeli position,
the West Bank and the Gaza Strip were no longer called by Israel “occupied territories”,
but henceforth referred to as the “Administered Territories” (Shtahim Mouhzakim),
merely “Territories” (Shtahim), the “Region” (Ezor), and by the biblical name of “Judaea
and Samaria” when making special reference to the West Bank.38
The Israeli government’s position was widely rejected by prominent international
organizations such as the International Commission of the Red Cross (ICRC) and leading
internal law experts both inside Israel and beyond its borders.39 At the heart of this
rejection was not the formal status of the West Bank and the Gaza Strip on the eve of the
Six-Day War but the fact that these territories were captured by the army of a foreign
occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.
36 Although the West Bank was annexed to Jordan in 1950, Israel contended that this annexation was not effective in light of the fact that only two states in the international community (The United Kingdom and Pakistan) were willing to recognize it. As to the Gaza Strip, this territory, although controlled by Egypt, was never formally annexed. More on the pre-1967 status of the OPT it the Israeli assertions, see Joseph H.H. Weiler, Israel, the Territories and International Law: When Doves are Hawks, in ISRAEL AMONG THE NATIONS 381, 384-388 (Alfred E. Kellermann et al., eds, 1998).
37 See Imseis, supra note 12, at 93.
38 Amnon Rubinstein, The Changing Status of the “Territories” (West Bank and Gaza): From Escrow to Legal Mongrel, 8 TEL-AVIV U. STUD. IN L. 59, 61-62 (1988) [hereinafter Rubinstein, The Changing Status].
39 See Richard A. Falk and Burns H. Weston, The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP 125, 132-133
(Emma Playfair ed., 1992); Orna Ben-Naftali, Ayal M. Gross & Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, 23 BERKELEY J. INT’L L. 515, 567 (2005); KRETZMER, supra note 29, at 34; BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8, at 109-110; Imseis, supra note 12, at 97-100.
14
state as a result of a war between parties that are “High Contracting Parties” – precisely
the situation that the Convention was designed to apply to.40 Indeed, article 1 of the
Fourth Geneva Convention provides: “The High Contracting Parties undertake to respect
and to ensure respect for the present Convention in all circumstances.” Moreover, article
4 of the same Convention provides that “persons protected by the Convention, are those
who at any given moment and in any manner whatsoever, find themselves, in a case of
conflict or occupation, in the hands of a party to the conflict or Occupying Power of
which they are not nationals.” Since Palestinians in the OPT are living under Israeli
occupation and Israel is a party to the Convention, it was therefore argued that the
Convention applies irrespective of the pre-1967 status of the West Bank and Gaza Strip.41
Although the official Israeli position in respect of the OPT did not consider these
territories as “occupied”, this did not mean that Israel considered the OPT (with the
exception of East Jerusalem) as part of its sovereign territory either. On the contrary, in a
series of military orders issued immediately in June 1967, it was made clear that these
territories are to remain a separate jurisdictional entity from the State of Israel. In a
military order designated as Proclamation No. 1, compiled in accordance with a preconceived legal manual prepared by the office of the IDF Attorney General,42 it was
categorically stated that the IDF (rather than the Israeli government) had now “assumed
responsibility for security and maintenance of public order.” 43 More elaborate was
military Proclamation No. 2, issued in the same month of June 1967, which added two
40 See Samira Shah, On the Road to Apartheid: The Bypass Road Network in the West Bank, 29 COLUM. HUM. RTS. L. REV. 221, 245 (1997); Roberts, supra note 10, at 64-65.
41 See Ober, supra note 33, at 104.
42 Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government - The Initial Stage, in 1
MILITARY GOVERNMENT IN THE TERRITORIES ADMINISTERED BY ISRAEL 1967-1980: LEGAL ASPECTS 13, 24-5, 25 n. 27, 28-31 (Meir Shamgar ed., 1982).
43 Id. at 13.
15
additional basic norms relating to the OPT. First, that the law existing in the OPT on June
7, 1967 “shall remain in force so far as there is nothing therein repugnant to this
proclamation.”44 Second, that all powers of government, legislation, appointment and
administration in relation to the “Region” or its inhabitants shall henceforth be vested in
the military commander. An equivalent set of proclamations was also issued by the
military commander for the Gaza Strip. According to these sets of proclamations the IDF
military commander became the sovereign power in the OPT with control over the
legislative, judicial and executive branches. So while an Israeli organ, the IDF, a
subordinate of the Israeli government, was in full control of the OPT, the OPT were still
considered to be a separate jurisdictional entity independent from Israel.
It appears that these proclamations and the jurisdictional design they produced
were influenced by another set of norms in the law of belligerent occupation: the Hague
Regulations.45 For this body of norms, as distinct from the Fourth Geneva Convention, is
considered to represent customary international law, rather than treaty law. In turn, this
made Israeli authorities much more attuned to the observance of these regulations. And
indeed, article 43 of the Hague Regulations provides:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
44 Id. at 52.
45 Regulations Concerning the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1Bevans 631 [hereinafter Hague Regulations]. For a more detailed discussion on the international law norm of maintaining the local legal order in the occupied territory, see Davis P. Goodman, Note, The Need for Fundamental Change in the Law of Belligerent Occupation, 37 STAN. L. REV. 1573, 1585-89 (1985).
16
In as much as this provision is taken to mean that an occupied region is to be maintained
as a separate jurisdictional entity from the occupied power, one can indeed observe that
this obligation was formally upheld by Israel. In the civil law sphere, which is my main
sphere of interest here, the Proclamations for both of these regions preserved not only the
local legal system but to a large part the pre-1967 existing court system.46 Consequently,
the West Bank, until 1967 under Jordanian rule, was heavily influenced by Jordanian law,
and the Gaza Strip, previously under Egyptian control but not governed by its laws,
carried on with the laws in force when Great Britain terminated its mandate over
Palestine in 1948.47
However, preserving the OPT as a separate jurisdictional entity from Israel did
not mean that these regions were organized as a political unit by which the local
population could mobilize for change in the local legal system by way of election or a
representative democracy of any sort. The sole sovereign in the OPT was the IDF
military commander,48 who was of course subordinate to the instructions of the Israeli
government.49 Indeed, in September 1968 a special Israeli government committee that
46 THE CIVILIAN JUDICIAL SYSTEM IN THE WEST BANK AND GAZA: PRESENT AND FUTURE 14-15 (The International Commission of Jurists, The Center for the Independence of Judges and Lawyers, 1994)
[hereinafter THE CIVILIAN JUDICIAL SYSTEM]. One major amendment to the local court system in the West Bank did take place, however, the abolishment of recourse by West Bank litigants to the Court of Cassation in Amman, Jordan, as a final court of appeals. See RAJA SHEHADEH & JONATHAN KUTTAB, THE WEST
BANK AND THE RULE OF LAW 18-19 (1980).
47 See Anis F. Kassim, Legal Systems and Developments in Palestine, 1 PALESTINE Y.B. INT’L L. 19, 27-29
(1984).
48See H.C.J. 94/75 Nassar v. The Gregorian Armenian Court, [1975] IsrSC 30(2) 44, 48.
49 Hamadah, IsrSC 57 (3) 8, at 15-17; Indeed, precisely because of this hierarchy the Israeli Supreme Court in its capacity as a High Court of Justice was willing to review the actions taken by IDF military commanders in the OPT according to general notions of Israeli administrative law. See Eli Nathan, The Power of Supervision of the High Court of Justice over Military Government, in 1 MILITARY GOVERNMENT IN THE TERRITORIES ADMINISTERED BY ISRAEL 1967-1980: LEGAL ASPECTS 109 (Meir Shamgar ed., 1982); Mazen Qupty, The Application of International Law in the Occupied Territories as Reflected in the Judgments of the High Court of Justice in Israel, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP 124 (Emma Playfair ed., 1992).
17
included senior members of the government, was established to take primary decision
making responsibilities for policies in the OPT.50
In 1981, however, a major modification caused certain changes in the mode of
government in the OPT. In November of that year a body called the Civil Administration
was established in both the West Bank and the Gaza Strip.51 It was proclaimed that this
Civil Administration “would gradually be taken over by civilians… [and that] local
Palestinians would assume the administrative tasks, including senior positions.” 52
However, this did not mean that the Civil Administration was to become independent of
the military government.53 On the contrary, the military orders were formulated so that
the civil administration was to remain under the ultimate control of the military
government.54 It is not surprising, therefore, that the creation of the Civil Administration
was met with resentment and a general boycott from the Palestinian leadership, with
accusations that the scheme was “an introductory step to Israeli annexation”, or at best “a
perpetuation of the existing occupation.”55
B. Internalizing the Concept of the OPT as a Separate Jurisdiction in Israeli Conflict
of Laws Doctrines English common law has had a substantial impact on Israeli conflict of laws. This goes back to the historical fact that many of the doctrines that comprise Israel’s private
50 See GEORGE E. BISHARAT, PALESTINIAN LAWYERS AND ISRAELI RULE 51 (1989).
51 See JONATHAN KUTTAB & RAJAH SHEHADEH, CIVILIAN DMINISTRATION IN THE OCCUPIED WEST BANK, ANALYSIS OF ISRAELI MILITARY GOVERNMENT ORDER NO. 947 7 (1982) [hereinafter KUTTAB &
SHEHADEH, CIVILIAN ADMINISTRATION]; Joel Singer, The Establishment of a Civil Administration in the Areas Administered by Israel, 12 ISR. Y.B. HUM. RTS. 259 (1982).
52 Singer, supra note 51, at 278.
53 See MENACHEM HOFNUNG, DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL 224 (1996).
54 Singer, supra note 51, at 280.
55 Id., at 259.
18
international law were heavily influenced by the common law tradition.56 The principal
reason for this was the British Mandate over Palestine, established by the League of
Nations after British forces took over the country from the Ottoman Turks in 1917.57 One of the first major legal enactments undertaken by the British Mandate was the Palestine Order in Council of 1922 (POC), 58 a semi-constitutional document that defined the jurisdiction accorded to each of the government branches as well as the major sources of law to be applied in courts. Most relevant to our discussion is Article 46 of the POC, under which local courts are to have recourse to “the common law and the doctrines of equity in force in England” whenever no applicable norm on the issue can be found in local law, and “insofar as the circumstances in Palestine permitted.” Since much was lacking in local law on conflict of laws questions (except maybe in the sphere of personal status),59 major chunks of English common law pertaining to adjudicative authority (in personam and in rem), choice-of-law and recognition and enforcement of judgments were imported into local doctrine.60
The establishment of the State of Israel in 1948 did not change much in the legal
dependence on English private international law, the termination of the British Mandate
notwithstanding.61 One of the first legal enactments of the state was that the body of law
existing in the country on the eve of its establishment was to continue to be in effect. This
56 See Amos Shapira, Private International Law, in INTRODUCTION TO THE LAW OF ISRAEL 361, 361 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995).
57 See David M. Sassoon, The Israel Legal System, 16 AM. J. COMP. L. 404 (1968).
58 3 THE LAWS OF PALESTINE 2569 (Robert Harry Drayton ed. 1934).
59 See e.g., Ariel Rosen-Zvi, Family Law and Inheritance Law, in INTRODUCTION TO THE LAW OF ISRAEL
75, 75 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995) (in certain spheres of family law in Israel, “members of different religious communities are subject to the respective religious laws of these communities which vary from one community to another”). See also Menashe Shava, Israeli Conflict of Laws Relating to Matrimonial Property – A Comparative Commentary, 31 INT’L & COMP. L. Q. 307 (1982).
60 Shapira, supra note 56, at 361.
61 See ARIEL BIN-NUN, THE LAW OF THE STATE OF ISRAEL, AN INTRODUCTION 4-8 (1990).
19
left Article 46 of the POC in force, and with it the continued importation of English
common law doctrines into the local law of conflicts.62 Only in 1980 did Israel rescind
Article 46, making such principles as freedom, justice, equity and Israel’s heritage as the
sources the courts are to bear in mind when faced with legal lacunae.63 However, as this
law specifically provides, this development shall have no effect on the status of the legal
norms incorporated in the past. 64 Moreover, given the common law roots of Israeli
conflicts doctrines, courts in Israel continued to take developments in common law
jurisdictions, including that of the United States,65 into account when coming to reform
existing rules, or in seeking guidance in new queries.66 With these introductory remarks
in mind, we can delve deeper into Israeli conflicts doctrines to discern how, and to what
extent, the OPT’s identity as a separate but Israeli-controlled jurisdiction came to be
internalized by existing doctrines.
One of the first cases to grapple with the jurisdictional identity of the OPT in a
conflicts related issue was that of Sandoka v. Sandoka,67 rendered just a few month after
the 1967 War. The case dealt with an alimony and maintenance action filed in the District
Court of Tel-Aviv-Jaffa on behalf of a wife from Gaza and her children, who had moved
in a matter of weeks after the end of the Six-Day War from the Gaza Strip to Jaffa. At the
time the action was filed the defendant husband was still living in Gaza, and it is there
62 Uri Yadin, Reception and Rejection of English Law in Israel, 11 INT'L & COMP. L. Q. 59 (1962)
63 The Foundation of Law Act, 5740-1980, 34 LSI 181 (1980).
64 Section 2(b).
65 A prominent source in this respect was the American Law Institute’s Restatement (Second) on the Conflict of Laws. See C.A. 750/79 Klauzner v. Berkovitz, [1980] IsrSC 37 (4) 449, 459; C.A. 300/84 Abu Attiya v. Arabtis, [1985] IsrSC 38(1) 365, 380-38.1.
66 This led to some uncertainty about the governing choice-of-law rules, especially in torts with suggestions for reform ranging from a proposal to adopt an approach based on Jewish law to one based on a functionalism. See Y. Meron, The Choice-of-Law in Tort in Israel, 18 ANGLO-AM. L. REV. 37 (1989);
Amos Shapira, Choice-of-Law in Torts, 7 ISR. L. REV. 557 (1972).
67 Summons (TA) 1163/67, [1967] 59 IsrDC 356.
20
that he was served by the IDF military police with the process, i.e. the court documents
(usually claim and summons), initiating legal proceedings against him. The question
before the court was whether such service of process was sufficient in order to establish
personal jurisdiction against the defendant. The answer to this question is highly relevant
to the inquiry of the jurisdictional status of the OPT in terms of Israeli conflicts law. The
English law doctrinal approach to personal jurisdiction inquiry, which Israel generally
adheres to, conditions service of process outside the sovereign territorial jurisdiction of
the country upon receiving special leave from the court seized with the action.68 However, according to the same body of English doctrines, also absorbed by Israeli private international law, if the defendant is considered to be present within the sovereign
territory of the state in which the action is filed at the time he or she is served with
process, then that service alone, without any condition such as a leave from the court, is
sufficient to establish personal jurisdiction.69 In this case, no leave was granted by the
Tel-Aviv-Jaffa District Court prior to service on the defendant, and therefore it became
an essential question for the court as to whether the defendant, at time of service in Gaza,
was inside or outside the sovereign jurisdictional territory of the State of Israel. In a
lengthy judgment delivered by Judge Shlomo Asher, later to become a Justice of the
Supreme Court of Israel, it was stated that “everyone knows, and no proof is needed on
this issue, that the City of Gaza is located in a territory that was occupied by the IDF in
the Six-Day War – and the question is whether this court (or any other district court in
Israel) has jurisdiction over the mentioned occupied territory.”70 Since Israeli sovereignty, as the court explained, had not been extended over the Gaza Strip, it was to be regarded
68 STEPHEN GOLDSTEIN & ELISHEVA HACOHEN, CIVIL PROCEDURE: ISRAEL 67 (1994)
69 BIN-NUN, supra note 61, at 192.
70 Sandoka, [1967] 59 IsrDC at 357.
21
as foreign to the State of Israel, making it essential to obtain leave for service on the
defendant who was outside the state’s jurisdiction.71 In essence, according to the Sandoka holding, the Gaza Strip is to be treated as if it were a foreign jurisdiction like that of a sovereign state, with due regard given to its independent jurisdictional identity. This case, then, led to a watershed decision, which established a strict legal border between Israel and the West Bank and the Gaza Strip, in spite of Israel’s evident military control.72
But this conception did not last long. Israeli military control of the OPT, or to be
precise, the fact that an official Israeli organ – the IDF military commander – operated as
the sole sovereign power in the OPT, was to figure into conflicts doctrine, although never
quite annulling the separate jurisdictional identity of the OPT. Soon after the rendering of
the Sandoka judgment, a new set of civil procedure rules were issued by the Israeli
Ministry of Justice: Rules of Procedure (Service of Documents in the Administered
Territories), 1969 (SDAT, 1969) that undermined the conception of the OPT as a separate
jurisdictional entity. These rules provided that service of judicial documents in any region
held by the IDF could henceforth be made according to the ordinary civil procedure rules
in respect of service of such documents inside of Israel. In light of these regulations it
was subsequently held by the Supreme Court that service of process in the OPT can thus
be made without the need to obtain special leave from the court, for no such leave is
needed according to the ordinary rules of procedure when the defendant is present inside
of Israeli territory.73 The practical meaning of this holding was that any defendant present
71 Id. at 357-9.
72 Amnon Rubinstein, Yisra’el ve-ha-Shtakhim: Samkhuyot Shiput [Israel and the Territories: Judicial
Powers], 14 IYUNEI MISHPAT 415, 444 (1989) (in Hebrew) [hereinafter Rubinstein, Israel and the Territories].
73 LCA 55/71 Al-Khir & Sons Co. v. Van Der Hurst Fruit Import, [1971] IsrSC 25(2) 13. For critical remarks on this decision see Baruch Bracha, Hamtsa’at Mismakhim la-Shtakhim ha-Mukhzakim, [Service
22
in the OPT was as much subject to Israeli courts’ personal jurisdiction authority as any
defendant present in Israel itself. 74 Theoretically, this position was justified by the
assertion that, given de facto Israeli control of the OPT, these territories are under no
foreign sovereign authority that courts in Israel need consider, and therefore can suspend
the ordinary rules for service of process in foreign sovereign states.75
The implementation of the SDAT, 1969 rules still did not make the OPT an
integral part of Israel for all jurisdictional purposes.76 The best example of this would be
a case in which the defendant is an OPT domiciliary who, at the time of the initiation of
the proceedings before an Israeli court, is in a foreign country. While the defendant’s
domicile in Israel would provide sufficient nexus for issuing a leave for service outside of
the jurisdiction under Rule 500 of RCP, 1984 (the main regulatory framework for out-of jurisdiction service of process ), the position of a defendant whose domicile is in the OPT
is different. Such a defendant cannot be regarded as having a domicile in Israel simply for
the reason that the OPT were not annexed to Israel. So, while there would be no personal
jurisdiction implication for Israeli courts when the defendant is physically present in
either territory, the moment that defendant sets foot in a third foreign jurisdiction, his or
her domiciliary ties to Israel or to the OPT would acquire substantial significance. This
very notion of maintaining the OPT as a separate jurisdictional unit, while at the same
time allowing Israeli conflicts rules extra margins to develop conflicts doctrines attuned
to the nature of Israeli-OPT relations, become characteristic of conflicts methodology in
of Documents to the Held Territories], 4 MISHPATIM 119 (1972) (in Hebrew); Eli Nathan, Israeli Civil Jurisdiction in the Administered Territories, 13 ISR. Y.B. HUM. RTS. 90 (1983)
74 See GOLDSTEIN & HACOHEN, supra note 68, at 67
75 CA 211/73, Shourafa v. Wechsler [1974] IsrSC 28(1) 512, 515-18. See also CA 151/80 (BS), Kaplan v. Gabai [1980] IsrDC 5742(2) 290; CA 300/84, Abu Attiya v. Arabtisi [1985] IsrSC 39(1) 365; CA 588/83
Al-Rayis v. The Arab Insurance Company [1984] IsrSC 38(3) 495.
76 Cf. BENVENISTI, LEGAL DUALISM, supra note 22, at 25.
23
Israel for many years to come. A case in point is the Israeli Supreme Court decision in
Abu Attiya v. Arabtisi.77
The plaintiff, a minor, was injured in a work-related accident in the Ramallah
factory where he was employed. The named defendants were the employer, also a
resident of Ramallah, and Prudential – the foreign insurance company that issued the
policy covering the employer's liability through its West Bank branch, and also had a
branch office in Jerusalem. The plaintiff filed his action before the District Court of
Jerusalem. This court dismissed the action after it identified the natural forum for the
present litigation to be in what the court called the litigants “back yard”, i.e. Ramallah.
On appeal the Supreme Court affirmed the decision. The main opinion was delivered by
Justice Strassbourg-Cohen, who took a functional approach that drew heavily on
American precedents, both for the forum non conveniens standard and the choice-of-law
in torts rule. In her opinion, in both cases the choice should be the forum or the law to
which the parties and the cause of action have the most significant connection, and have
that forum or law govern the adjudication.78 But the more relevant part of this opinion
concerns Justice Strassbourg-Cohen’s statements in the course of articulating the exact
standards that need to apply in identifying the natural forum for litigation and the
77 CA 300/84, [1985] IsrSC 39(1) 365. However, in a short published decision of the Supreme Court there is a clear sign that in respect of claims filed by a Palestinian resident of the OPT against another Palestinian resident of the OPT as a result of a cause of action originating in the OPT the applicable standard for stay of action is to be relegated to the local OPT courts without the need to apply the pre-modern standard of St. Pierre. CA 588/83 Al-Rayis v. The Arab Insurance Company [1984] IsrSC 38(3) 495.
78 Abu Attiya, [1985] IsrSC 39(1) at 382. As a matter of procedure, the Court could have resolved the forum non conveniens inquiry without the need to also resolve the choice-of-law question. As we shall see, another justice opted to do precisely that. However, Justice Strassbourg-Cohen, apparently driven by a concern to reform existing choice-of-law rules in torts, and following her statement that a choice-of-law inquiry is generally a relevant factor in a forum non conveniens assessment, undertook in her decision not only the challenge of identifying the appropriate forum for litigation but also the governing law. Id. at 379.
24
governing law in OPT-related civil litigation. Justice Strassbourg-Cohen points to the
indeterminate relations between Israel and the OPT, noting on the one hand, that the relations between the Region [Ezor, i.e., the OPT] and Israel are not identical to those among independent sovereigns, and on the other hand, that the Israeli legislature has explicitly made clear that residents of the Region who are not Israeli citizens, and whose connection according to the circumstances is to the law applicable in the Region and the courts there, should be judged by the courts there and according to the applicable law there.79
In her decision, however, Justice Strassbourg-Cohen cites no specific legislation by the
Israeli legislature, the Knesset which contains an explicit policy about the primacy of
OPT law and courts designed to accommodate OPT residents. What she does cite in this
respect, in another paragraph, is Proclamation No. 2 and other IDF orders in which this
policy was explicitly exhibited.80 Since there is no other legislation in Israel in which this policy is explicitly echoed, Justice Strassbourg-Cohen, it seems, bases her decision on orders issued by IDF commanders, and identifies these rules with laws issued by the
Israeli legislature that courts in Israel must be guided by when articulating their conflicts
rules. In accordance with Justice Strassbourg-Cohen’s functional approach, OPT forum
and OPT law were found to be those with the appropriate authority over this dispute, for
all the significant contacts of the cause of action and the parties involved are indeed in the
OPT.
79 Id. at 382.
80 Id. at 373-374.
25
The second opinion rendered in this decision was that of Justice Aharon Barak.
His analysis was much more constrained than that of Justice Strassbourg-Cohen. He
sought to stay the current action solely on forum non conveniens grounds without any
need to discuss the choice-of-law question.81 According to Justice Barak’s analysis a
court should generally take into consideration all the relevant factors in order to identify
the natural forum for litigation. But in terms of Israeli conflicts policy towards the OPT,
Justice Barak makes two important observations that re-affirm the policy consideration
articulated in this respect by Justice Strassbourg-Cohen. First, if in the present case he
were to identify what he terms as “a significant Israeli factor, for example if one of the
parties was an Israeli resident or citizen whose reasonable expectations as to the natural
forum is not the court in Judea and Samaria but in Israel”,82 he would not have opted for
a stay of the action on forum non conveniens grounds. Second, Justice Barak adds, in
such a case one should also consider the fact that the relations between Israel and Judea
and Samaria are not the same as the relations between two friendly sovereign states but
that “we are dealing with a region under Israeli occupation, over which Israel asserts
control, which is nearby, and in which Israeli citizens and domicilaries live.”83
The third Justice presiding over the case, Justice Moshe Baiski, preferred to
refrain from referring to the choice-of-law analysis, basing his decision instead on the
narrow ground of forum non conveniens, as articulated by Justice Barak.84
The Abu-Attiya decision stands out as an important articulation of Israeli conflicts
policies in respect of the OPT. Despite the Justices’ hesitant and conflicting terminology,
81 Id. 384-86.
82 Id. 386.
83 Id. at 386.
84 Id. at 387.
26
referring to the West Bank once as the “Region” (Ezor), once as “Judea and Samaria” and
once as a “region under Israeli occupation”, they were able to articulate an ingenious
notion of the jurisdictional status of the OPT under Israeli conflict of law rules. The Court
underscored the fact that while the OPT is to be considered as a separate jurisdictional
entity with due regard given to its local courts and laws, still it should not be treated as a
sovereign foreign entity. Israeli control of the OPT, as made explicit in the decision,
makes it necessary to adjust existing conflicts rules in order to construct this reality. The
specific rules of SDAT, 1969 were thus implemented to afford Israeli courts a
jurisdictional power that they lacked in the case of other foreign jurisdictional entities,
and which they were able to acquire directly because of physical Israeli control over the
OPT. In essence Abu-Attiya extended this logic into the sphere of the forum non
coveniens doctrine, by holding that when the case involves an Israeli party, an Israeli
court is to refrain from staying the proceedings in favor of the OPT court. So in a mixed
Israeli-Palestinian adjudication, it is the reasonable expectations of the Israeli party,
rather than those of the Palestinian party, that will henceforth determine the forum. The
judgment rendered by the Court in Abu-Attiya suggests that Israeli control over the OPT
implies that Israeli interests in conflicts inquiries will dominate.
The implicit analogy between control over the OPT and control in conflicts
inquiries, and specifically that of choice-of-law, was made explicit in the Jerusalem
District Court case, The National Insurance Institute of Israel v. Abu-Ita.85 The injured
party in this case was an Israeli who, during a business visit to a factory compound
owned and operated by a Palestinian corporation in the West Bank, incurred severe burns
when a fire broke out in the factory. The civil action here was a subrogation claim filed
85 CA 910/82 (Jerusalem) [1988] IsrDC 1988(2) 133 .
27
by the Israeli National Insurance Institute against the Palestinian corporation operating
the factory, after the Institute had paid the Israeli injured party the sums due under Israeli
national insurance law. The question that faced the Israeli court was whether the original
tort should be governed by Israeli law or under OPT municipal law, for under
subrogation rules the insurer, in this case the National Insurance Institute, is entitled to
receive from the tort feasor only what the latter is obliged to pay to the tort victim. On the
choice-of-law issue, Judge Dalia Dorner, later to serve as a Justice of the Israeli Supreme
Court, said:
Many Israelis live, work and travel in Judea and Samaria,
and have commercial relations with local residents. This
state of affairs creates an anticipation that not only the legal
proceedings concerning a tort in Judea and Samaria which
involves both Israeli residents and local residents shall be
held in a competent court in Israel, but also that the Israeli
law shall be applied.
The Israelis, even if present in Judea and Samaria –
do not see themselves as being under Jordanian law, and do
not anticipate that the norms practiced in Jordan will be
applied to their case. They are linked to Israel and to Israeli
law.
These facts influence also the anticipation of the
other side – in this case the tort-feasor who is a local
resident, for in this case the incident is not an internal one
between residents of the Region, but one that concerns
injuries to an Israeli in the Region.86
As noted by Eyal Benvenisti, this reasoning was representative and characteristic of
conflicts inquiries in mixed Israeli-Palestinian settings.87 The expectations and interests
of the Israeli party are decisive. Because of Israeli control, it is the Palestinian party that
must ultimately adjust.
86 Id. at 143 - 144
87 BENVENISTI, LEGAL DUALISM, supra note 22, at 30.
28
One area in which an Israeli-Palestinian setting showed preference for OPT
municipal law over Israeli law was labor contracts.88 Labor contracts between an Israeli
employer and a Palestinian employee were found to be governed by OPT law.89 However, this is actually another sign that Israeli control over the OPT was translated into the control of Israeli interests in conflicts inquiries. For OPT law afforded fewer worker benefits than those afforded by Israeli law,90 thus discriminating against OPT laborers and allowing Israeli employers to profit by using cheaper labor.91 This was evident also in the situation of Palestinian workers working in Israel. Even though legally they have equal rights to those of Israeli workers, their poor bargaining power, menial jobs and often their status as illegal workers acted to the advantage of Israeli employers, thereby severely undermining the basic objective of modern labor law.92
A limited formal reciprocity may be seen in Israeli conflicts policy in the
enforcement of OPT judgments in Israel. A set of regulations issued by the Ministry of
Justice made OPT judgments enforceable in Israel, as if they had been issued by an
Israeli court.93 By these regulations, a party seeking enforcement of an OPT judgment in
Israel need not petition the Israeli court for an enforcement of judgment, the normal
procedure for foreign judgments,94 but can directly approach the Execution Office with a
simple execution request similar to that of the execution of ordinary Israeli judgments in
88 Id. at 30.
89 Id. at 30.
90 Moreover, it has been indicated that a special military order was issued preventing Israeli residents from
working in the OPT, an order that had no bearing on Israeli settlers in the OPT. See SHEHADEH, OCCUPIER’S LAW, supra note 32, at x.
91 See HOFNUNG, supra note 53, at 236-37.
92 See Guy Mundlak, Power-Breaking or Power-Entrenching Law? The Regulation of Palestinian Workers in Israel, 20 COMP. LAB. L. & POL’Y J. 569 (2000).
93 Emergency Order (The Administrative Territories by Israel Defnse Forces – Judicial Assistance) (No.2),
1976.
94 See Batarsa, [1987] IsrSC 41(2) 100; Shapira, supra note 56, at 377.
29
Israel. In return, an Execution Office was established in the OPT also in order to execute
Israeli judgments directly.95 However even this seeming symmetry was no more than
formal. In practice, the initiation of proceedings in OPT courts when Israeli parties or
interests were implicated was limited by various military orders.96 To begin with, special
permission was required from IDF in order to initiate proceedings against, or even accept
testimony concerning, the State of Israel, its branches and employees, the Israeli armed
forces and its members and administrative agencies in the OPT operated by the military
government.97 Moreover, restrictions were made in proceedings in which Israeli settlers
were a party.98 The primary area in which local OPT courts had some jurisdiction over
Israeli residents and settlers was in land disputes. But such jurisdictional power was
conceived as a threat to the Israeli settlement project, so a military order was issued under
which disputes over unregistered land for which an application for registration was made,
the typical scenario when land was acquired in order to build new Israeli settlements in
the OPT,99 were to be transferred to a special military committee constituted under the
same order to adjudicate these land cases.100 Thus quasi-judicial administrative tribunals
were established and appointed by the OPT military commander and granted exclusive
jurisdiction over OPT local courts in some 26 different matters, ranging from land
95 See Drori, supra note 11, at 72.
96 SHEHADEH, OCCUPIER’S LAW, supra note 32, at 80-81, 94.
97 Id. at 80.
98 Id. at x, 76, 94, 222; CIVILIAN JUDICIAL SYSTEM IN THE WEST BANK, supra note 46, at 44; See also HOFNUNG, supra note 53, at 224 (indicating how the power vested in OPT local courts underwent extensive changes mainly because Israeli “authorities’ desire to avoid the situation of Israeli citizens standing trial before local Arab judges under local law”).
99 RAJA SHEHADEH, THE LAW OF THE LAND, SETTLEMENTS AND LAND ISSUES UNDER ISRAELI MILITARY OCCUPATION 6 (1993) (indicating that only a little over a third of all West Bank land was registered land)
100 SHEHADEH, OCCUPIER’S LAW, supra note 32, at 33.
30
expropriation to permits for planting trees and vegetables.101 In addition, OPT courts
were poorly maintained, 102 inefficient and frequently accused of corruption, which
intensified the dissociation of the local community103 and eventually led to the paralysis
of the local court system. 104 So although some conflicts reciprocity was formally
established in Israeli-OPT civil proceedings at least in the area of enforcement of
judgments, it was mainly merely symbolic.
The domination of Israeli interests within Israeli conflicts doctrines was taken a
step further in the legal accommodations granted to Israeli settlements in the OPT. Israeli
settlements and settlers in the OPT were mostly governed by Israeli law instead of OPT
municipal law – the latter was to remain the law for the indigenous Palestinian population.
This design, that essentially divided the OPT into two separate jurisdictional identities,
came to influence Israeli conflicts doctrine in a manner similar to the one just discussed,
namely that when Israeli settlements interests were implicated Israeli conflicts doctrine
determined Israel as the appropriate adjudicative and prescriptive jurisdiction, but where
the interests were those of the local Palestinian population Israeli conflicts doctrine
decreed that the case should be adjudicated in OPT courts according to OPT law.
The next chapter is a historical and methodological account of the Israeli settlement project in the OPT, its legal accommodation and the implications this has had
on Israeli conflicts doctrine.
101 Kassim, supra note 47, at 31. See also BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8, at 117-118.
102 SHEHADEH, OCCUPIER’S LAW, supra note 32, at 7-8; SHEHADEH & KUTTAB, supra note 46, at 37.
103 See George E. Bisharat, Peace and the Political Imperative of Legal Reform in Palestine, 31 CASE W.
RES. J. INT’L L. 253, 266 (1999).
104 CIVILIAN JUDICIAL SYSTEM IN THE WEST BANK, supra note 46, at 39.
31
Chapter II: The Israeli Settlement Program and the Creation of “Legal Dualism” in
the OPT
A. The Genesis and Evolution of the Israeli Settlement Program
In the immediate aftermath of the 1967 War, the Israeli government was guided by the
general political stance that the status of the OPT is to be resolved in a future
international settlement, and until then these territories are to be administered by the
IDF.105 But even if OPT territories were to be exchanged in return of peace, many Israelis thought that the pre-1967 borders made Israeli vulnerable and some adjustment would be needed, if and when an agreement were to be reached.106 However, actual administration policy in this initial period had not yet been crystallized by the Israeli government and was “determined by the events and steps taken by those entrusted with the day-to-day administration of the Occupied Territories.”107
As time went by, administration policy became clearer, to such a degree, indeed,
that significantly negated the prior general policy which would preserve the OPT as a
region temporarily awaiting a final peace settlement. The primarily cause for this change
was the Israeli settlement project.108
The first articulated policy concerning the settlements was in fact drawn immediately after the 1967 War in what became to be known as the Alon Plan, named
105 KRETZMER, supra note 29, at 6
106 HOFNUNG, supra note 53, at 218.
107 KRETZMER supra note 29, at 7.
108 See Michael Galchinsky, The Jewish Settlements in the West Bank: International Law and Israeli Jurisprudence, 9 ISR. STUD. 115 (2004); ISRAELI SETTLEMENTS IN THE OCCUPIED ARAB TERRITORIES, A COLLECTION OF STUDIES PRESENTED TO THE INTERNATIONAL SYMPOSIUM ON ISRAELI SETTLEMENTS IN THE OCCUPIED ARAB TERRITORIES (The League of the Arab States, 1985); WILLIAM W. HARRIS, TAKING ROOT, ISRAELI SETTLEMENT IN THE WEST BANK, THE GOLAN AND GAZA-SINAI, 1967-1980 (1980); DANIEL J.
ELAZAR (ED.), JUDEA, SAMERIA AND GAZA: VIEWS ON THE PRESENT AND FUTURE (1982); Ann Mosely Lesch, Israeli Settlements in the Occupied Territories, 1967-1977, 7 J. PALESTINE STUD. 26 (1977); Ann Mosely Lesch , Israeli Settlements in the Occupied Territories, 8 J. PALESTINE STUD. 26 (1977).
32
after its principal architect, Yigal Alon, a long-time Labor Party government and cabinet
member.109 According to the Plan (presented by Alon as a peace plan as well) the
objective was to have Israel annex “the minimal defensible borders that are indispensable
without impairing, to any meaningful effect, the basic interests of the other side, including those of the Palestinian Community.”110 Accordingly, the Plan provided only
for “selective settlements… in those strategic zones so vital to [Israel’s] security.”111 The Alon Plan envisioned settlements only in areas essential to Israel’s strategic military
interests whereby the rest of the OPT will not be held “as an end in itself.”112 The Alon
Plan has influenced the Labor Party’s political objectives ever since, and became the
effective policy of the Israeli government in the first decade of occupation (1967-1977)
during which the Labor Party led the government coalition.113 Following this plan, Israeli settlements were built in the Jordan Valley, which was to be Israel’s eastern border, to prevent forces from crossing the Jordan River and amassing in the West Bank.
Settlements were also built in the area surrounding Jerusalem. Relative to what the
settlement project would finally become, the project of this first decade was relatively of
modest proportions. In 1973 there were only 17 settlements in the West Bank with a total
population of 1,514 Israeli Jewish citizens.114 Four years latter, in 1977, when the Labor
Party was defeated in the general elections, 36 settlements were recorded in the OPT, 31
109 Much of the plan became public in an article authored by Alon himself. See Yigal Alon, Israel: The Case for Defensible Borders, 55 FOREIGN AFFAIRS 38 (1976).
110 Id. at 44.
111 Id. at 49-50.
112 Id. at 51.
113 Though the plan was never officially approved by the government. See HOFNUNG, supra note 53, at 217.
114 RAJA SHEHADEH, FROM OCCUPATION TO INTERIM ACCORDS: ISRAEL AND THE PALESTINIAN TERRITORIES 5 (1997).
33
in the West Bank and five in the Gaza Strip, with a total population of 4,500 Israeli
Jewish settlers.115
A dramatic shift in settlement policy came in 1977 when the Likud Party, led by
Menachem Begin, came to power. 116 This party, and the right-wing coalition
governments it formed over the years, was much more ambitious in terms of retaining
control and eventually extending Israeli sovereignty over the OPT.117 Ideologically it saw the West Bank and the Gaza Strip as part of “Greater Israel” into which pre–1967 Israel could expand, and politically harnessed the Zionist settlement project 118 to advance settlement building beyond the Green Line (the pre–1967 borders), and actively
encouraged Israeli civilians to move to these settlements by presenting settlement as a
fulfillment of Zionist ideology.119 The Alon Plan was now replaced by the Drobles Plan,
officially submitted in 1978 by Matityahu Drobles, at the time the head of the Rural
Settlement Division of the World Zionist Organization. 120 This plan called for the
establishment of settlement blocs in populated areas in the West Bank in an effort to
prevent the creation of a future Arab state in the area. 121 Drobles’s plan was
supplemented by a number of other initiatives that had the same design, that of
establishing a massive and irreversible Israeli civilian presence in the OPT. The Drobles
115 Robert H. Mnookin & Ehud Eiran, Discord “Behind the Table”: The Internal Conflict among Israeli Jews Concerning the Future of Settlements in the West Bank and Gaza, 1 J. DISP. RESOL. 11, 21 (2005).
116 MERON BENVENISTI, THE WEST BANK DATA PROJECT: A SURVEY OF ISRAEL’S POLICIES 52-3, 59 (1984);
MARK TESSLER, A HISTORY OF THE ISRAELI-PALESTINIAN CONFLICT 520 (1994); Yadin Kaufmann, Israel’s Flexible Voters, 61 FOREIGN POLICY 109,111-112 (1985-1986); HOFNUNG, supra note 53, at 235-236;
BISHARAT, supra note 50, at 63.
117 WILLIAM W. HARRIS, TAKING ROOT: ISRAELI SETTLEMENT IN THE WEST BANK, THE GOLAN AND GAZASINAI,
1967-1980 138 (1980); KRETZMER, supra note 29, at 8.
118 See W. THOMAS MALLISON AND SALLY V. MALLISON, THE PALESTINIAN PROBLEM IN INTERNATIONAL
LAW AND WORLD ORDER 244-52 (1986).
119 SHEHADEH, FROM OCCUPATION TO INTERIM ACCORDS, supra note 114, at 3-4. John Quigley, Living in Legal Limbo: Israel’s Settlers in Occupied Palestinian Territory, 10 PACE INT’L L. REV. 1, 6 (1998).
120 KRETZMER, supra note 29, at 76.
121 Id. at 76.
34
Plan was updated in 1980 and 1983,122 and then supplemented by the One-Hundred
Thousand Plan that designed the groundwork for settling an additional 80,000 Jews on
the West Bank by the end of 1985.123 In 1991 came the “Seven Star” Plan announced by
then-Minister of Housing, Ariel Sharon, opening the way to the creation of seven new
towns on the Green Line, “with the declared intention of its consequent eradication.”124
Substantial economic incentives were provided to the settlers in the form of special grants, government backed mortgages, tax breaks and more.125
As a result of these initiatives, the settlement population grew dramatically. In
1980 the Jewish population in the West Bank was 12,000.126 In 1992, it reached 101,100, in 1996 142,000, and in 2000 a total of 195,000.127 An estimate made at the end of 2005 indicates that there were 250,000 Israeli settlers living in the West Bank, even after the disengagement from the Gaza Strip and the evacuation of four settlements in the northern part of the West Bank (that in total included some 8,000 settlers) in August of that year.
128
These statistics do not include East Jerusalem. This is not to suggest that the Israeli settlement project bypassed this region; the contrary is true. Over the same period
Jerusalem’s municipal borders were significantly expanded, from 6.5 km² to 71 km²,
taking in regions from the West Bank, which as a result of concentrated governmental
122 Id.
123 GERSHON SHAFIR & YOAV PELED, BEING ISRAELI, THE DYNAMICS OF MULTIPLE CITIZENSHIP 172
(2002).
124 KRETZMER, supra note 29, at 76.
125 SHAFIR & PELED, supra note 123, at 173.
126 Id. at 171.
127 Id. at 180-181
128 See Robert H. Mnookin et. al, Barriers to Progress at the Negotiating Table: Internal Conflicts Among Israelis and Among Palestinians, 6 NEV. L.J. 299,310, 317 (2005/2006). However the statistics show an increase in the numbers of Jewish settlers in the OPT after the Israeli disengagement in August 2005. Id. at
317.
35
efforts also became heavily populated by Israeli citizens.129 The Jewish population of
East Jerusalem was about 9,200 in 1972,130 50,000 in 1977,131 103,900 in 1986,132 and at the end of 2005 it was estimated at 175,000. 133 The jurisdictional identity of this
expanded region of East Jerusalem was identical with that of East Jerusalem itself after
1967, i.e. it came to be part of Israel for all jurisdictional purposes, thus placing it, for
better or worse, beyond the discussion that stands at the center of this chapter as to the
implication of the Israeli settlement project on Israeli conflicts doctrine.
Israel has maintained that the settlement project in the OPT is legal.134 Other than
the argument conceiving the OPT as not “occupied” and therefore not subject to the
international law of belligerent occupation, Israel has contended that the norm contained
in Article 49 of the Fourth Geneva Convention, prohibiting the occupying power from
transferring its own civilian population to the occupied territory, applies only in cases of
forced transfer, but not, as is the case with Israeli settlements in the OPT, of voluntary
relocation of residence.135
However, this contention has received very poor support in the international
community. Indeed, the more dominant view, including that held by the United States
State Department, is that the Israeli settlements in the OPT are illegal under international
law.136
129 Ben-Naftali et al. supra note 39, at 573.
130 SHAFIR & PELED, supra note 123, at 181
131 Mnookin et al. supra note 128, at 311.
132 SHAFIR & PELED, supra note 123, at 181.
133 Mnookin et al., supra note 128, at 311.
134 See Marilyn J. Berliner, Note, Palestinian Arab Self-Determination and the Israeli Settlements on the West Bank: An Analysis of their Legality under International Law, 8 LOY. L.A. INT’L & COMP. L.J. 551,
678-579 (1986).
135 Id.
136 See Ghada Talhami, The Palestinian Perception of the Human Rights Issue, 13 SYRACUSE J. INT’L L. &
COM. 475, 486-487 (1987).
36
It is interesting to note in this respect that the Israeli Supreme Court, which over
the years has come to provide some form of judicial review over the actions of the Israeli
government and IDF authorities in the OPT, has generally refrained from intervening in
government decisions regarding settlements in the OPT.137 An important and  exceptional decision in this respect was that of Dweikat v. Government of Israel,138 or as it is more commonly known, the Elon Moreh Case.139 Here the Court took a more activist stance, holding that the establishment of Israeli civilian settlement in the OPT on private lands owned by Palestinian residents was unlawful when it is found to be unjustified in terms of security needs. Since in this case there was disagreement among different government and IDF officials on whether the proposed settlement was indeed needed on security grounds, the Court was willing to hold the government decision invalid.140 However in practice this decision had very limited impact.141 The settlement itself was eventually constructed on a nearby plot of land.142 But more importantly, in the decision the Court was not willing to hold the settlement project itself as illegal. To circumvent the legal issue, the Israeli government began labeling major strips of land in the OPT as public rather than private land,143 and establishing settlements there without legal hindrance.144
It is intriguing that during the period of settlement expansion Israel was involved
in two major peace processes with sovereign powers to which the Israeli settlements in
137 KRETZEMER supra note 29, at 78.
138 HCJ 390/79 [1979] IsrSC 34(1) 1.
139 See: Israel: Supreme Court Judgment with respect to the Elon Moreh Settlement in the Occupied West Bank (October 22, 1979), 19 I.L.M. 148 (1980).
140 KRETZMER, supra note 29, at 85-89.
141 One scholar at least predicted that the decision will seriously impede government support for settlements in the OPT. See Joseph H. Weiler, Israel and the Creation of a Palestinian State: The Art of the Impossible and the Possible, 17 TEX. INT’L L. J. 287, 363 (1982).
142 Roberts, supra note 10, at 91.
143 KRETZMER, supra note 29, at 90-91.
144 Kaufman, supra note 116, at 112.
37
the OPT were anathema. The first peace process was with Egypt in the late 1970s, the
second with the Palestinians, better known as the Oslo Peace Process. From 1977 to 1981, when Egyptian-Israeli peace negotiations took place, the number of settlers in the West Bank almost quadrupled, from 4,500 to over 16,000. 145 In the 1990s, the decade
dominated by the Oslo Peace Process, the number of West Bank settlers grew from
78,000 to nearly 200,000.146
B. The Settlements and their Legal Accommodations The Israeli settlement project in the OPT required a massive allocation of OPT land and of Israeli domestic resources. The legal accommodations for the settler population were an integral part of the project, with effects in both the Israeli legal system and that of the OPT.147 The intention of these accommodations was to make it legally insignificant for the Israeli settlers for having relocated their lives to the OPT, even though formally the OPT were outside the sovereign jurisdictional borders of Israel.148 In other words, as far as the population of Israeli settlers was concerned, they, together with the municipal settlement territories, were effectively annexed to Israel in terms of the reach and application of Israeli municipal law.149
The legal accommodation of the Israeli settler population in the OPT was achieved by using one of the following two methods: (a) defining the scope of Israeli legislation in a manner that made it applicable to the Israeli settler population in the OPT;
145 Mnookin & Eiran, supra note 115, at 22.
146 Id. at 23.
147 BENVENISTI, LEGAL DUALISM, supra note 22, at 58 (noting that the changing legal environment of the OPT “followed closely the changing policies of Israeli government, facilitating their implementation”).
148 Id. at 3. See also HOFNUNG, supra note 53, at 229-232.
149 SHEHADEH, OCCUPIER’S LAW, supra note 32, at 11, 13, 63, 212; SHAFIR & PELED, supra note 123, at 197.
38
(b) issuing military orders in the OPT by which special legal arrangements are made to
accommodate the Israeli settlers population.150 Through the combined effect of both these methods Israeli enactments pertaining to income tax, social security, health care,
elections laws to local government and to the Israeli Parliament (the Knesset), municipal
and rabbinical courts, to name just a few, were made selectively applicable only to the
Israeli settler population in the OPT.151 In addition, according to a special enactment by
the Israeli Knesset, the Minister of Justice, with the approval of the Knesset Constitution,
Law and Justice Committee, can introduce the entire body of Israeli statutes to the OPT
and apply it only to the Israeli settlers that reside there.152
The driving force behind these legal arrangements was the Israeli government.153
In 1979 Prime Minister Menachem Begin proclaimed that “the Jewish inhabitants of
Judea and Samaria and Gaza will be subject to the laws of Israel.”154 This is the case even when the legislation in the OPT takes the form of military orders issued by the military commander, who under international law is presumed to be the sovereign power in an occupied territory. But as Amnon Rubinstein has noted, when it comes to the legal
accommodation of Israeli settlers, this presumed distinct sovereign authority over the
OPT was merely a fiction.155
The indigenous Palestinian population, on the other hand, was meant to remain
subject to a different and distinct legal system, primarily in the sphere of private law, that
150 Rubinstein, The Changing Status, supra note 38, at 69-73; Bem-Naftali et. al, supra note 39, at 585.
151 See BENVENISTI, LEGAL DUALISM, supra note 22, at 15; SHEHADEH, OCCUPIER’S LAW, supra note 32, at 65-67.
152 HOFNUNG, supra note 53, at 232.
153 Id. at 224.
154 M. BENVENISTI, THE WEST BANK DATA PROJECT, supra note 116, at 39. For additional remarks made at the time by Prime Minister Begin, see W.T. Mallison, Jr., and S.V. Mallison, A Juridical Analysis of the Israeli Settlements in the Occupied Territories, 10 PALESTINE Y.B. INT’L L 1, 7-9 (1998/99).
155 Rubinstein, The Changing Status, supra note 38, at 73.
39
existed in the OPT under Jordanian rule, before the Six-Day War. In the West Bank, this
system of law was for the most part the Jordanian legal system and in the Gaza Strip it
was the British Mandate system as preserved by the Egyptian military government
between 1948 and 1967.156 In the course of time some changes were introduced to this
body of norms to the benefit of the local population.157 For example, one military order
increased employees’ entitlement under Jordanian labor law to include sick leave,158 and
increased the amount due for workman’s compensation.159 However, in the larger picture these changes were insignificant and did not alter the general design of distinct legal systems for the settler population and the local Palestinian population.160 In matters pertaining to security, the Palestinian population of the OPT was made subject to yet another legal system, namely that of military law and military courts.161
It has thus become widely accepted that a dual system of law has evolved in the
OPT, one for the Israeli settlements and their population that is identical with Israeli
municipal law, and the other for the Palestinian population, a mixture of pre-1967
existing law and military orders pertaining to security matters.162 It is also important to
note that this reality did not develop accidentally or out of a negligently articulated
policy.163 As already noted, official Israeli government agencies “were deeply involved in 156 CIVILIAN JUDICIAL SYSTEM IN THE WEST BANK , supra note 46, at 13-14.
157 BISHARAT, supra note 50, at 137.
158 SHEHADEH, OCCUPIER’S LAW, supra note 32, at 221. See also LISA HAJJAR, COURTING CONFLICT, THE ISRAELI MILITARY COURT SYSTEM IN THE WEST BANK AND GAZA (2005).
159 SHAFIR & PELED, supra note 123, at 197.
160 Id.
161 SHEHADEH, OCCUPIER’S LAW, supra note 32 at 221-222
162 See Imseis, supra note 12, at 106; Talhami supra note 136, at 486; SHAFIR & PELED, supra note 123, at 195-197; Ober, supra note 33, at 117; Ben-Naftali et. al, supra note 39, at 584-585; CIVILIAN JUDICIAL SYSTEM IN THE WEST BANK AND GAZA, supra note 46, at 32; KUTTAB & SHEHADEH, CIVILIAN ADMINISTRATION, supra note 50, at 11
163 Rubinstein, The Changing Status, supra note 38, at 69, 72; Rubinstein, Israel and the Territories, supra note 72, at 456.
40
planning and implementing the creation and expansion of settlements.”164 And within the confines of what was called “jurisdictional politics”, repeated attempts were made to
categorize Palestinian and Israeli settlers of the OPT differently.165 “Israeli citizens living and working in the West Bank were made to integrate into the protective orbit of Israeli law, while effectively treating the Palestinian residents of the West Bank as ‘foreign nonresidents’.”
166
This dual legal reality developed despite the previously quoted prescription in
Article 43 of the Hague Regulations.167 As noted before, the Hague Regulations were
taken to represent customary international law, and therefore Israel was generally more
committed to observing their enforcement in the OPT than conventional norms of the law
of belligerent occupation such as the Fourth Geneva Convention. Given the wording of
Article 43 of the Hague Regulation, particularly the restriction pertaining to the subject
matter of legislation conducted by the occupying power, permitting legislation that is
intended to “restore and ensure… public order and safety”, and the restriction pertaining
to the circumstances in which such legislation is to made, and given the fact that the
occupying power must respect the laws in force “unless absolutely prevented”, it would
seem that the occupying power has very little leeway in changing the existing legal order
in the occupied territory.
Notwithstanding the strong wording of Article 43 of the Hague Regulations, there
was a long-standing view that the article allows for a greater latitude of legislation by the
164 Mnookin & Eiran, supra note 115, at 22. See also Galchinsky, supra note 108, at 116 (“Since 1967, successive Israeli governments have, directly or indirectly, participated in the transfer of some 230,000 civilians into 145 West Bank and Gaza Settlements and approximately 110 outposts”).
165 Tobias Kelly, Jurisdictional Politics in the Occupied West Bank: Territory, Community, and Economic Dependency in the Formation of Legal Subjects, 31 LAW & SOC. INQUIRY 39, 46 (2006).
166 Id.
167 It has been noted that this article represents “the gist of the law of occupation.” BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8, at 7.
41
occupying power than could be realized from the simple reading of the article.168 It was
noted, to begin with, that the French version of the article, which is the more authoritative
version, in pertaining to the permitted scope of subject matter of legislation by the
occupying power, does not speak merely about ensuring “public order and safety” but of
“lordre et la vie publique”, i.e. “public order and civil life”.169 This broader definition of
the subject matter of permitted legislation under Article 43 of the Hague Regulations was
adopted by the Israeli Supreme Court in its decision in 1971 in Christian Society for the
Holy Places v. Minister of Defense.170 The Court determined that the Military Command in the OPT could apply its legislative powers as long as the motive behind the measures it introduced was to further the good of the local population, even when such measures are innovative relative to the existing legal system.
The more intriguing aspect of the interpretive course taken by the Court concerned the circumstantial limitation of Article 43 of the Hague Regulation, whereby the occupying power should respect the laws in force, unless it is “absolutely prevented” from doing so. The Court held that this limitation is to be taken as permitting the introduction of legislation by the IDF military commander whenever such a measure is deemed necessary in the fulfillment of duty towards the residents of the territory.171 The
concern for the welfare of local OPT residents voiced by the Court in this decision,
earned the Israeli occupation the characterization of being a form of “benevolent
occupation”.172
168 See Edmund H. Schwenk, Legislative Power of the Military Occupant under Article 43, Hague Regulations, 54 YALE L.J. 393 (1945).
169 Id. at 398. See also Shah, supra note [??] at 270.
170 HCJ 337/71 Christian Society for the Holy Places v. Minister of Defense, [1971] IsrSC 26(1) 574.
171 Id. at 584.
172 KRTEZMER, supra note 29, at 59.
42
The Israeli Supreme Court seems to have abandoned this initial attitude in later
judgments, by making it possible for the military commander to legislate in order to
accommodate the political agenda of the Government of Israel instead of the welfare of
the indigenous Palestinian population.173 As a result, the Court went on to hold as legal
under Article 43 of the Hague regulation legislative measures such as restrictions of the
freedom of press, refusal to allow local government elections, imposition of new taxes,
and more.174 But the more significant turning point for the purpose of this article was the
Israeli Supreme Court’s decision in Electricity Company for Jerusalem District v.
Minister of Defense.175
The petitioner, a Palestinian corporation based in East Jerusalem that supplies
electricity to the West Bank and East Jerusalem, sought to challenge the orders of the IDF
military commander under which the supply of electricity for the city of Hebron and the
adjacent Israeli settlement of Kiryat Arba (one of the first Israeli settlements in the West
Bank) would henceforth be made by the Israel Electricity Company. The petitioner
argued that it had been granted a concession for the supply of electricity in the West Bank, including in Hebron, under the existing law of the West Bank. Therefore, it argued, inter alia, the said military orders are incompatible with Article 43 of the Hague Regulations.
The petition was ultimately dismissed. The Court reasoned that the military orders in this
case were fully within the scope of the said article as articulated in the Christian Society
case, and determined that the local population whose interests the military commander is
173 Id. at 64.
174 Id. at 60.
175 [1972] IsrSC 27(1) 124. For an English summary of the case see 5 Isr. Y.B. Hum. Rts. 381 (1975);
Discussion of the case in Emma Playfair, “Playing on Principle? Israel’s Justification for Its Administrative Acts in the Occupied West Bank, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES (E. Playfair ed., 1992) 205, 216-220; and A. Pellet, The Destruction of Troy Will Not Take Place, id. at 169 .
43
to take into consideration when taking legislative measures in the OPT under Article 43
of the Hague Regulations are also those of the Israeli settlers.176
C. The Ramifications of “Legal Dualism” on Israeli Conflict of Laws Doctrines
Eventually, the legislation that ensued from the establishment of Israeli settlements in the
OPT and the dual legal system it created came to be configured in Israeli conflicts
doctrine. The first implications were in the sphere of jurisdiction. Indeed, as far as
personal jurisdiction was concerned much had already been achieved under the SDAT,
1969 rules, which permitted the service of Israeli process in the OPT without the need for
leave for service outside the jurisdiction. Moreover, when this jurisdictional authority
threatened to introduce Israeli legislation between Palestinian litigants in respect of a
cause of action that originated in the OPT, Israeli courts devised a forum non conveniens
doctrine that worked to stay the adjudication of such actions before Israeli courts.177 But
the SDAT, 1969 rules were insufficient to guarantee recourse to Israeli courts when the
litigants in the OPT based action were all settlers.178 According to the Israeli rules of civil procedure, for the court to be able to adjudicate the case on the merits, beside possessing personal jurisdiction over the defendant, and of course subject matter jurisdiction, it also needs to possess local jurisdiction authority (venue), which depends on the specific intra-Israeli jurisdictional district in which the court seized with the case is located.179 Today, Israel has six such districts, none of them in the OPT, and Israeli civil procedure rules require that the district in which litigation is initiated have some sort of nexus to either
176 See KRETZMER, supra note 29, at 65, 215 n. 37.
177 Stephen Goldstein, Israel, in DECLINING JURISDICTION IN PRIVATE INTERNATIONAL LAW 259, 270 (J.J.
Fawcett ed., 1995).
178 BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8, at 129.
179 GOLDSTEIN & HACOHEN, supra note 68, at 62.
44
the cause of action or to the parties involved – usually the place of residence or the place
of business of the defendant.180 But when all the parties are Israeli settlers residing in the
OPT and their cause of action also happens to be totally connected to the OPT, although
in terms of personal jurisdiction, service of the Israeli court’s process will be sufficient in
order to enable that court to adjudicate the case, the court will still not be able to do so
because it lacks proper local jurisdiction. This was exactly the setting in Mantsura v.
Cohen.181
The action in this case was brought by a resident of Kiryat Arba against another
Kiryat Arba settler, in which the plaintiff claimed compensation for an alleged tort
committed in Kiryat Arba. The District Court of Jerusalem dismissed the action after
finding that it lacked local jurisdiction. The Supreme Court affirmed the decision,
clarifying once again that while service of process establishes personal jurisdiction when
served on the defendant present in the PT, it does not necessarily establish local
jurisdiction. Justice Sussmann, President of the Supreme Court, ended his judgment by
sending a clear message to the legislative branch. In the current state of affairs, he
cautioned, there is a “void in the rules of jurisdiction in respect of Jewish settlements in
the Administered Territories, but it is for the legislature to provide a solution.”182
This call was soon answered. In 1979 the Israeli Minister of Justice amended the
venue provisions of Israeli courts, providing that when an action is within the jurisdiction
180 See BIN-NUN, supra note 61, at 191.
181 CA 301/77, [1978] IsrSC 32(3) 405.
182 Id. at 407.
45
of Israeli courts but venue does not lie in any of the existing judicial districts, the action
may be filed in a court sitting in Jerusalem with proper subject matter jurisdiction.183
This new rule as to local jurisdiction, together with the remarks made by the
Supreme Court in Manzura and Abu Attiya, signaled the Israel courts that disputes in
which Israeli settlers were party are to be adjudicated in Israel, even when the other party
is a Palestinian and even if the action occurred in the OPT.184 Similarly, choice-of-law
inquiries involving Israeli settlers and Palestinian residents of the OPT, usually torts or
employment-related cases of Palestinian employees filing against Israeli settler
employers in respect of a work related cause of action,185 have also come to internalize
the reality of legal dualism. In such cases plaintiffs are to be governed by OPT law, even
if the accident or the employment contract were entirely based in an Israeli settlement.
A representative case in this respect is that of Ben-Or Tsa‘atsu‘im v. Feras,186 a
decision rendered by the magistrate court of Petah Tiqva. The plaintiff, a Palestinian
resident of the West Bank, was injured in a work-related accident that took place in a
business operated by an Israeli incorporated company in a West Bank Settlement. An
Israeli insurance company was named as an additional defendant having issued the policy
that covered the employer’s liability for work-related accidents. It should be noted that
183 See Goldstein, supra note 177, at 260, 270. At present, the relevant provision is contained in Rule 6 of CPR 1984, which reads as follows: “An action that is not within the proper jurisdiction of a court under these rules or any other law, is to be brought before a court in Jerusalem that has proper subject matter jurisdiction, but the court in Jerusalem may order otherwise should it believe that under the circumstances trial in another forum would be more convenient for the parties.”
184 BENVENISTI, INTERNATIONAL LAW OF OCCUPATION, supra note 8, at 133. However, when all the concerned parties are Palestinian residents of the OPT and the cause of action originates in the OPT, a factual basis shows no significant Israeli contact or interest, Israeli courts have usually stayed the action on forum non conveniens grounds, thereby relegating the parties to the OPT local civil court in order to
adjudicate the claim.
185 Another sphere of such mixed action related to land acquisitions in the OPT, a sphere in which specific regulations were issued that prevented local OPT courts from dealing with such disputes, establishing a military appointed committee instead.
186 CA 1626/99 (Petah-Tikva), Miscellaneous Civil Petitions (Petah-Tikva) 1308/00.
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this insurance policy stipulated that coverage of injury to residents of the West Bank
would be provided in accordance to employer liability under West Bank law. By filing
the claim before an Israeli forum the Palestinian plaintiff hoped to have his claim
adjudicated in Israel, and as was made explicit in the plea filed on his behalf, he also
opted for the application of Israeli law. The Israeli defendants, on the other hand, asked
the court to dismiss the case on forum non conveniens ground, and alternatively, were the
court to adjudicate the claim on the merits, to do so in accordance with West Bank law.
In an interlocutory judgment the court responded to both arguments, holding on the one
hand that there is no room for applying the forum non conveniens doctrine, and on the
other that the applicable law is that of the West Bank. On the issue of the forum non
conveniens the court noted the holding of Justice Barak in Abu-Attiya in which a court in
an OPT-related civil action is to refrain from staying the proceedings when there is a
significant Israeli factor. The court stressed that the defendants being Israelis created the
necessary significant Israeli factor, notwithstanding the Israeli defendants’ attempt to
dismiss the Israeli forum as being inappropriate. The court observed that the determining
factor was the reasonable expectations of the Israeli defendants before the accident. Had
they been asked where they would prefer litigation to be conducted with a Palestinian
resident of the West Bank, they would have pointed to the Israeli forum.
Another important holding in this interlocutory judgment concerns the choice-oflaw
inquiry. Building once again on the putative expectations of the parties and on the
most significant contact test as articulated in Abu-Attiya, the court concluded that the
applicable law is that of the West Bank. In terms of policy, the court explicitly notes two
major considerations. First and foremost is the fact that in articulating the law governing
47
in the OPT, Israeli authorities made it clear that West Bank law is applicable, including in
the sphere of work-related injuries of local residents, which the court cannot just freely
disregard. Second, given that the insurance policy covers the employer’s liability only as
much as it is determined according to West Bank law, it would thus be unfair to the
employer if he were now to be held liable in accordance with Israeli law. Concerned that
the decision would be seen as implying discrimination against Palestinian workers
employed in OPT settlements, the court noted it does not discern a normative scheme of
this sort in the OPT, since labor law in the West Bank does not differentiate between
Israeli and local employers or between Israeli and local employees. But if there were such
a differentiation, still this should not be taken to impose on the employer a law that he did
not expect to be applied. Moreover, local West Bank law does not necessarily undermine
the interests of local Palestinian employees since under that law the employer carries a
non-fault liability toward the employee in work-related accidents, whereas under Israeli
law the employee must prove negligence by the employer for the latter to be liable in
torts.
These choice-of-law policy concerns were by no means isolated. They were
echoed in at least two other judgments with a similar fact pattern: a Palestinian plaintiff
injured in a work-related accident files a tort claim based on Israeli law before an Israeli
court against an Israeli incorporated defendant operating a business in a West Bank
settlement, who has acquired an insurance policy in Israel for its work-related liability.
One was by the Tel-Aviv District court, Arieh Hevrah le-Vituah v. Nuzhah,187 and the
second was by the Magistrate court of Kfar-Saba, Muhammad v. Yakir, Agudah Shitufit
187 PA (Tel-Aviv) 200680/98 (1998).
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Le-Hityashvut Kehilatit.188 In both of these cases the court emphasized the fact that
according to IDF orders the local law in the West Bank, inasmuch as it has not been
changed or altered by other military orders or applicable Israeli legislation, was meant to
govern activities taking place in the West Bank, a legislative intent that Israeli courts
must take into consideration when undertaking a choice-of-law inquiry.189 In addition, in both judgments the courts found that West Bank law is to apply also in terms of the most significant contact test, which was taken to be the choice-of-law rule in torts. Party
expectations were also referred to as pointing to West Bank law.
The Kfar-Saba Magistrate court in Muhammad elaborated more in respect of
other policy concerns, especially that Palestinian and Israeli workers might be governed
by different laws even if injured in the same accident. First, the court argues, it is not at
all certain that different laws will be applicable in such a case, for the Israeli worker
might also be governed by West Bank law. The court acknowledges that in a case
involving two Israeli settlers it could happen that Israeli rather than West Bank law will
govern their relation, either because both parties will opt for Israeli law or because of
party expectations. In either case, this will be the exception rather than the rule, for it
builds on the implicit intent of both parties. To further stress that this is indeed an
188 C 5777/99 (Kfar-Saba) (2001).
189 At first glance the case of C.A. (Tel-Aviv) 1269/85 Amsalem v. Levi, [1993] IsrDC 1993(1) 232 seems to be exceptional. Here, the plaintiff was a resident of Israel who was injured in a road accident during work while in an Israeli settlement in the West Bank. The defendant insurance company was also an Israeli corporation. The case presented no choice-of-law question in terms of the defendant’s liability, for OPT law was identical in this regard with that of Israeli law. The choice-of-law question arose on whether certain sums should be deducted from the compensation the plaintiff is entitled to – such a deduction was mandated by Israeli law but not so according to OPT law. In the end, the court ruled that the applicable law is that of the OPT. This conclusion seems to go against the trend evinced so far, under which when all parties were Israelis it was Israeli law that was applied by the courts. However, looking into the reasoning afforded by the court in this case shows that it sustains the prevailing tendency rather than negates it. For the court made clear that this position was taken because Israel controls the OPT and can legislate there as it sees fit (id. at 243); and since Israel had so far refrained from applying the same standards of deductions from personal injury compensation in OPT road accidents in which Israelis are injured, the court should not circumvent this implicit norm. Id.
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exception, the court refers to the intent of the Israeli legislature, the Knesset, to determine
the identity of the injured party, Israeli or local Palestinian resident as pivotal in
determining whether an Israeli motorist should be liable under the Israeli no-fault liability
scheme in Compensation for Injured in Road Accident Law, 1975.190
The observations made by the courts in these decisions, especially in Ben-Or and
in Muhammad, imply that OPT local law, namely that in effect in the West Bank, applies
equally to Israelis and Palestinians, even when the incident takes place in an Israeli
settlement, and that in some respects recourse to this law is advantageous. However, this
will soon be revealed as unsubstantiated. In spite of some modifications in OPT law,
whether in matters of torts or employment, this law was far less developed than Israeli
law, and Israeli settlers or residents employed in Israeli settlements were generally
presumed to be governed by Israeli law rather than OPT law. It is no accident that in all
of the three proceedings, the Palestinian plaintiffs argued for the application of Israeli law
and the Israeli settler defendants for the application of OPT law. Above all the courts
seemed to be perfectly attuned to official Israeli policy and followed its spirit of legal
dualism, namely that local Palestinian residents shall remain governed by local OPT
norms and not by Israeli municipal law, which was meant to benefit only the Israeli
settlers of the OPT.
Chapter III: Winds of Change
190 Section 1a. of this law provides: “[t]he driver of an Israeli vehicle is obliged to compensate an injured person who is an Israeli or foreign tourist [who under the law cannot be a Palestinian resident of the OPT]
and who suffered bodily injuries in an accident that occurred in the Ezor [Region] or the territories of the Palestinian Authority… and the accident is deemed to have happened in Israel.”
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In the Muhammad case, the presiding judge noted his surprise that the Israeli Supreme
Court had not yet provided choice-of-law principles in OPT related accidents, in spite of
the fact that the OPT, until this judgment in 2001, were under Israeli control for over 34
years, with numerous civil claims filed throughout the period before Israeli courts with
OPT based accidents as their cause of action. In the period since this comment was made,
two major decisions were handed down by the Israeli Supreme Court articulating choice of-law rules for torts and employment contracts, and also set out a policy to guide the
courts when dealing with such claims, particularly when they are filed by Palestinian
plaintiffs against Israeli settlers in respect of causes of action connected to Israeli
settlements in the OPT. These decisions reverse the trend of choice-of-law inquiries thus
far. In both these decisions, the Court accepted the claim made by the Palestinian
plaintiffs that Israeli law, rather than OPT law, should govern, essentially undermining
the legal dualism paradigm, at least in the choice-of-law context. Given the landmark
standing of both these judgments, what follows is a detailed account of the proceedings
and the decisions.
A. Yanon v. Qara’an
The plaintiff, Ms. Majdah Qara’an, a Palestinian resident of the West Bank city of
Qalqilya, was seriously injured in a work related accident. Her employer was an Israeli
incorporated company that operated a factory in Alfei Menasheh, an Israeli settlement in
the West Bank, which was also where the accident took place. The plaintiff argued for
the application of Israeli tort law under which she was entitled to the sum of 1.4 million
New Israeli Sheqels (NIS) (equivalent to about 390,000 USD) if successful in proving
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that the accident was caused as a result of the defendant’s negligence, as indeed the
plaintiff succeeded in doing in the District Court. The Israeli defendant, on the other hand, argued for the application of Jordanian labor law as it existed in OPT municipal law under which the plaintiff would be entitled to the sum of 187,200 NIS (equivalent to
about 52,000 USD) in compensation.
As indicated, the Supreme Court concluded that Israeli law should govern in this
case. Given the fact that this outcome was a significant departure from the attitude
evinced by courts in Israel thus far, the decision contains two major holdings, one in
regard of proper relations between choice-of-law rules and official Israeli policy towards
the OPT, and the other in respect of the choice-of-law rule in torts. On the first issue, the
Court, speaking through Justice Eliezer Rivlin, took the position that the official policy of
maintaining a separate jurisdictional entity in the OPT, as proclaimed by the IDF orders
and public international law norms does not mean that all events that take place in the
OPT are necessarily governed by OPT law, even if the claimant happens to be a Palestinian resident of the OPT. Identifying the governing law in a choice-of-law inquiry
is for Israeli conflict of laws to make.191 To further press the point about the independent
nature of Israeli choice-of-law rules, the Court observes that applying Israeli municipal
law to an OPT-related civil action does not and should not be taken to mean that by
making such an application the OPT have now become part of Israeli sovereign
territory. 192 Essentially, what the Court holds is that while public international law
principles and IDF orders have worked to identify what OPT municipal law is, still in the
case that such law will come in conflict with Israeli municipal law (or any other foreign
191 Id. at 350, 358.
192 Id. at 357.
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law for that matter) it is up to the relevant choice-of-law rules of the forum undertaking
the choice-of-law inquiry to determine which law is the governing law. In retrospect, this
holding puts an end to the long-standing symbiosis between Israeli official policy in
maintaining a separate jurisdictional entity in the OPT as far as the indigenous Palestinian
population is concerned and applicable Israeli conflict of laws policy in OPT-related civil
disputes.
Another important holding the Court makes is in articulating a new choice-of-law
rule for torts. After making an extensive review of the different approaches in this respect, both in foreign legal systems and in previous Israeli decisions,193 the Court opted for an approach very similar to that of the English Private International Law (Miscellaneous Provisions) Act 1995. The choice-of-law rule adopted by the Court was that in torts the law of the place where the tort was committed is the governing law. However, in rare circumstances, such as when the place of committing the tort is fortuitous, with no real or substantive connection to the act that was committed, the governing law will be that of the state having the most substantial connection with the tort. In adopting this new choice-of-law rule in torts, the Supreme Court provides a number of theoretical and practical considerations. It was provided that the rule serves the territorial principle, a guiding principle in private (and public) international law: 194 the interest of state to regulate actions that take place within its territory, 195 which is based on the most objective connecting factor in a tort action, being a rule that provides for certainty,196
193 Id. 358-369.
194 Id. at 373.
195 Id.
196 Id.
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predictability,197 and in a sense also serving party expectations, and as a multi-lateral rule helps deter parties from forum shopping.198
Before applying the new choice-of-law rule to the case at hand, the Court chose to
highlight the unique status of Israeli settlements in the West Bank. The law regarded as
the municipal law in the West Bank is Jordanian law together with the amendments and
additions made by the military commander. However, this situation is dramatically
different for Israeli Jewish residents who settled in the West Bank. Major sections of
Israeli municipal law was made personally applicable to such residents, whether by
defining Israeli municipal legislation to be directly applicable to such residents or by
virtue of military orders issued by the military commander that incorporated Israeli
municipal law into the municipal law of the West Bank but made it applicable only to the
Israeli settlers residing there. As a result of this legal status of Israeli settlements the court
calls them “Israeli enclaves”,199 for although they have not been officially annexed to
Israel, this law, to a large extent, happens to be Israeli law. At this point the Court could
easily have applied the choice-of-law rule it had just formulated to determine that the law
that should govern Ms. Qara’an’s claim is Israeli law, for the tort took place in a Jewish
settlement, i.e. an Israeli enclave, thereby making Israel the place were the tort effectively
took place. Interestingly, the Court did not take this course. Instead, it went out of its way
to apply Israeli law through the exception. For as a result of the same legal reality, in
such Israeli enclaves the connection between the act giving rise to Ms. Qara’an’s claim
and Jordanian law is essentially fortuitous.200 Moreover, the exceptional state of the law
197 Id.
198 Id. at 373-74.
199 Id. at 379
200 Id. at 379-380.
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governing in Israeli settlements makes it necessary in the Courts opinion to apply the
exception to the rule.201 This leads the Court to identify Israeli law as the governing law – a law that in the Court’s assessment has the most significant contact to the case at
hand.202 In taking this position the Court also emphasizes that it has done so not because
Israeli law happens to be the law that works to the advantage of the plaintiff. The Court
makes it clear that although the “better law” approach can be acceptable to some, in its
judgment it is unfitting to choose between laws depending on their content, except when
the foreign law is held to be against the forum’s public policy.203
B. Amutat Kav La-Oved v. National Labor Court in Jerusalem
The proceeding dealt with a cluster of claims filed on behalf of Palestinian residents of
the West Bank employed in Israeli settlements in the West Bank. Five of the employers
were Israeli registered corporations that operated in the West Bank, and the sixth was the
local municipality of Giva’at Zeav – a settlement on the West Bank near Jerusalem. At
issue was whether the Palestinian plaintiffs were entitled to work-related benefits
guaranteed under Israeli law, such as the right to a minimum wage, or only to such
benefits provided by West Bank local law which would entitle the Palestinian plaintiffs to
much less. The plaintiffs were represented by the petitioner in this case, Amutat Kav La-
Oved, a “non profit non-governmental organization committed to protecting the rights of
disadvantaged workers in Israel and in the Occupied Territories”.204 The petitioner, on
behalf of the Palestinian employees, argued for the application of Israeli law while the
201 Id. at 379.
202 Id. at 380.
203 Id. at 380-81.
204 http://www.kavlaoved.org.il/default_eng.asp.
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Israeli defendants argued for the application of West Bank local law as relevant for the
Palestinians. It is important to note that the office of the Israeli Attorney General, who
also took part in the proceedings before the Supreme Court, sided with the defendants. In
the view of the Attorney General’s representative, Palestinian workers employed in the
West Bank are to be governed by the West Bank local law, even when employed by
Israeli entities operating there. On a more principled level, the representative of the
Attorney General office argued that Israel had intentionally refrained from applying
Israeli law to all of the West Bank, and what Israel as a sovereign state had refrained
from doing cannot be achieved through the working of choice-of-law rules to be applied
by the courts.205
Before reaching the Israeli Supreme Court the claims filed by the plaintiffs to the
entitlement of work-related benefits according to Israeli law, was adjudicated first in the
Regional Labor Court, and thereafter, on appeal, in the National Labor Court. According
to standard procedure under Israeli law, it is the labor court hierarchy that is entrusted
with dealing with work-related claims.206 However, the Israeli Supreme Court sitting in
its capacity as the High Court of Justice has judicial powers to oversee the activities of
the various governmental bodies, including such special tribunals as the labor court, and
intervene in their judgments under appropriate and pre-defined circumstances.
Interestingly, the two labor court that dealt with these consolidated claims arrived at
different conclusions in terms of the governing law. The Regional Labor Court decided
that the governing law is Israeli law. On appeal before the National Labor Court this
205 For an extended analysis of the brief submitted on behalf of the Israeli Attoreny General, see Kelly, supra note 165, at 65-66.
206 See Ruth Ben-Israel, Labor Law, in INTRODUCTION TO THE LAW OF ISRAEL 213, 216-217 (Amos Shapira & Keren C. DeWitt-Arar eds., 1995).
56
decision was vacated, and it was decided that the applicable law is that of the West Bank.
Nonetheless, this court added that certain Israeli law provisions could be applied if public
policy considerations deem such application necessary. Therefore, the National Labor
Court decided to remand the case back to the Regional Labor Court in order to decide
whether it is necessary from a public policy point of view to apply certain Israeli law
provisions in any of the claims. It is this latter decision that was challenged in the Israeli
Supreme Court in its capacity as the High Court of Justice. And indeed this challenge
ultimately proved to be successful. The Israeli Supreme Court deemed the choice-of-law
analyses of the National Labor Court to be both erroneous and unjust.
Aware of the fundamental nature of the petition, the Supreme Court convened in a
panel of nine justices, instead of the usual three. Once again, Justice Rivlin, now Deputy
President of the Court, gave the leading decision. As in Qara’an, the Court makes an
essential distinction between the identity and different tiers of law that exist in the OPT
and Israeli choice-of-law rules. The Court once again holds that maintaining the OPT as a
separate jurisdictional entity cannot prevent Israeli courts from applying Israeli choice-of law rules to identify Israeli law as the governing law in a particular civil dispute related in
one way or another to the OPT.
In terms of the choice-of-law rule relevant for the pending claims, the Court makes two fundamental observations. The first identifies the Israeli choice-of-law rule for contracts, since an employment relationship is essentially a contractual relationship, albeit of a special kind. The position taken here by the Court is not different from that identified in the previous decision, and holds that in the absence of an indication by the parties as to which law should govern their contractual relationship, the court will choose
57
the law with the most significant contact to the contractual relationship as the proper law
of the contract.
In employment relations, the Court further notes, it is necessary to take cognizance of special policy considerations and mandatory norms, notwithstanding any specific contractual stipulation to the contrary. One such policy consideration the Court
emphasized was that pertaining to equality among workers. Employees conducting the
same job should be entitled to the same wage and the same work benefits, whether they
are men, women, parents, non-parents, Jews, Muslims, Israelis or Palestinians. The
influence of the principle of equality on the choice-of-law process can be attained, states
the Court, also through reference to such guiding principles as public policy and the basic
tenants of the legal order.
Applying these considerations to the case at hand leads the Court to identify Israeli law as the governing law. First, the Court points out, there is no indication in the employment contracts as to the law the parties perceived to be the governing law of the employment relationship. True, if the place of employment were to be the determinative nexus for identifying the governing law, then it would need to be the municipal law of the
West Bank. But such a territorial nexus cannot be the controlling nexus; the most
significant contact test requires that other important contacts be examined, as does the
reality of what the Court once again calls Israeli enclaves in the OPT. In such territories
there exist a number of legal orders depending on the personal identity of the party, as we
too have seen. Israeli citizens, settlers, are governed by a different set of laws than that
governing Palestinian residents. The legal nature of these Israeli enclaves themselves
therefore diminishes the significance of territorial connections, thereby increasing the
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weight of other connections in the overall assessment of the most significant contacts.
The Court sets out the following important contacts: the currency in which the wages
were paid, which was New Israeli Sheqels; the documents relating to the employment
were all written in Hebrew; the holidays and days of rest for the employees are those in
effect in Israel. The Court also notes that income tax and other taxes were paid in one
case to the Israeli authorities.
In addition the Court stresses the general policy of labor law, whereby one body
of law needs to be applied in respect of different workers doing the same job. A
distinction between Palestinian workers and Israeli workers in this respect is unjustified
and, from a choice-of-law vantage point, intolerable in employment contracts. For such
choice-of-law rules need also to represent the basic notions of justice accepted by Israeli
society and the family of nations, and to prevent employment discrimination on the basis
of national or ethnic affinity. Therefore, the Court concludes, the applicable law is Israeli
law. The Court stresses that in applying Israeli law in this specific case no consideration
was given to which law provides more benefits to the employees.
C. Conclusions from Qara’an and Amutat Kav La-Oved
The results in Qara’an and Amutat Kav La-Oved seem well founded in terms of the
specific choice-of-law rules articulated in each case. Moreover, the choice-of-law as
articulated in these cases will no doubt guide Israeli courts in the future in their choiceof-
law inquiries, especially in the sphere of choice-of-law in torts where it has not always
been clear what the governing choice-of-law rule was. And given the existing literature
examining the desirability and wisdom of the lex loci delicti rule in torts and the
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significant relationship test, whether as a rule by itself or as an exception, the Supreme
Court’s conclusions in evaluating the desirability of these rules as guiding choice-of-law
rules in the Israeli context can hardly be improved. Still, this leaves open the question of
the Court’s clear and sudden deviation in both Qara’an and Amutat Kav La-Oved from
the legal dualism paradigm that has informed Israeli conflicts rules almost from the
beginning of the occupation of the Palestinian Territories. This paradigm seems to dictate
exactly the opposite outcome to what the Court in both these cases decreed,207 that
Israelis and Palestinians living in the OPT will be governed by different sets of norms
just because each of them happens to belong to a different national group. But as the
Court made clear in Amutat Kav La-Oved, the prospects of having a Palestinian worker in the OPT governed by OPT municipal law and an Israeli worker in the same workplace
governed by Israeli law goes against basic notions of justice. I would venture to say that
this same sentiment seems also to have guided the Court in its choice-of-law analysis in
Qara’an. For if OPT law was considered to be the law that governed Ms. Qara’an’s claim,
the Court would have had no choice but to reach the conclusion that her claim is to be
governed by different norms than those of her Israeli co-workers, even if injured in the
same accident. But as has already been demonstrated, both decisions happen to be rather
weak in what they purported to rely on most forcefully, namely their policy concerns in
OPT-related choice-of-law inquiries.
In spite of the fact that the Court insisted that it was choosing between OPT and
Israeli law irrespective of the content of these laws, let alone the substantive and material
207 See Ben-Naftali et al., supra note 39, at 584 (the legal dualism in the OPT consists of “separate legal systems operating concurrently… effectively dividing the population along ethnic lines. Jewish settlers are extra-territorially subject to Israeli law, whereas the Palestinians are subject to the military orders and local law.”)
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consequences of their application, it seems that the underlying assumption in both cases,
especially in Amutat Kav La-Oved, proves the contrary. The Court's attention to such
notions as “public policy” and “notions of justice of Israeli society” would hardly have
been put forward if OPT law were as beneficial to employees as Israeli law. It should also
be noted in this respect that the claims in Amutat Kav La-Oved were of a general nature,
in which the Court was asked to decide whether Israeli or OPT employment law should
govern, rather than this or that specific norm in this or that particular labor statute.
Additionally, the mere fact that two individuals litigating an identical claim are
normatively to be treated differently only because they happen to have a different
nationality or a place of residence, does not necessarily mean that such norms are
repugnant to public policy and basic notions of justice.208 This is true particularly in the
field of conflict of law, where precisely because of national identity or place of domicile
parties can be governed by different norms. Indeed this happens in Israel in other spheres
as well, especially in the realm of domestic relations, such as marriage and divorce. In
such a sphere, precisely because of a person’s religious identity, he or she is automatically governed by a separate body of norms.209 However, given the Court’s use
of norms pertaining to public policy and to basic notions of justice of Israeli society, it
must have assumed what it was trying to deny, namely that OPT law was not merely
different from Israeli law, but far less developed, and if applied to Palestinian plaintiffs
such as those in Qara’an and Amutat Kav La-Oved will produce severe injustice.210 If
this assessment is accurate, and I see no other way to understand the Court’s analysis,
208 Indeed this argument was also raised by the Israeli Attorney General in the proceedings leading to the
decision in the Amutat Kav La-Oved case. See Kelly, supra note 165, at 65-66.
209 See e.g., Menashe Shava, Connecting Factors in Matters of Personal Status in Israel, 5 TEL-AVIV STUD.
L. 144 (1982); BIN-NUN, supra note 61, at 23.
210 See Kelly, supra note 165, at 59.
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then much of what has been presumed in previous decisions about Palestinian plaintiffs
not necessarily being disadvantaged when governed by OPT tort or employment law
should also be rejected from now on. Similarly, the previous guiding assumption that
Israelis working in Israeli settlements might also be found to be governed by OPT tort
and employment law, was also rejected by the Court, for if this was the case, the Court
could hardly speak about the value of equality: why do so if Palestinian and Israeli
employees working in the OPT are presumed to be governed by the same OPT norms.
Indeed as noted by Tobias Kelly, “[t]erritorial jurisdiction in the [West Bank] was
reduced to effective personal jurisdiction by the unequal distribution of political and
military resources.”211
But what is more profound about these decisions, especially Amutat Kav La-Oved,
was the recourse the Court made to values of “public policy” and the “basic notions of
justice of Israeli society” in its effort to back its policy of equal (and fair) treatment of
Palestinian employees in Israeli settlements. This argument, with all its good intentions,
is also illusive. As I tried to illustrate in the foregoing discussion, the reality of legal
dualism did not evolve as a result of two separate jurisdictions operating independently in
the OPT which produced different norms to govern each jurisdiction respective
constituency. Rather, one entity, the Israeli government through its different organs,
guided the construction and maintenance of legal dualism in the OPT. It is no wonder,
then, that the Attorney General’s Office in Amutat Kav La-Oved explicitly backed the
position taken by the Israeli settler defendants, a position that openly called for
Palestinian plaintiffs to remain governed by OPT law. However, since I believe that
justice was served in both Qara’an and Kav La-Oved, though unsupported as yet by the
211 Id. at 60.
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policies as articulated by the Court, I would like to suggest here an alternative argument
in support of the Courts choice-of-law analysis. Essentially, I argue, the primary support
for the Court’s analysis lies in the notion of fairness in the choice-of-law process. Though
this notion is largely marginal in modern choice-of-law analysis, long stranded between
the notion of vested territorial rights and a consequentalist interest analysis approach, I do
believe that it provides important tools in guiding choice-of-law analysis, especially in
the context of military occupation.
D. The Principle of Fairness in the Choice-of-Law Process
One major division in the choice-of-law methodology of the past century or so is that
between the territorial paradigm and the state interest-policy paradigm. The territorial
paradigm seeks to identify the governing law for a legal relationship by identifying the
major territorial event in that relationship and thereafter have the law of the place where
that event took place govern the relationship if and when a choice-of-law controversy
arises. In this context each relationship is presumed to have a “seat” in a jurisdiction that
is deemed to have the central territorial connection to the relationship at hand.212 And
since according to traditional territorial thinking the law of one state cannot travel across
state lines, it was resolved that what is effectuated when a foreign law is identified as the
governing law, is not the law of the place where the act took place but the rights vested
by this law in the litigants that are now before the court. The interest-policy paradigm, on
the other hand, seeks to resolve the choice-of-law inquiry by inquiring into the normative
interests and policies of the laws concerned, and after identifying such interests and
policies asks whether in light of the specific circumstances of the case such interests and
212 EUGENE SCOLES ET AL., CONFLICT OF LAWS 48 (4th ed. 2004).
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policies are to be implemented. The dominant factor making state interests and policies
converge was found to be the domicile of the concerned parties. The discussion of these
two paradigms has brought some scholars to discuss the issue of fairness in the choice-of law process.213 The contention is that a choice-of-law inquiry should also be concerned
with achieving a result that is considered to be fair. This fairness standard, as we shall see, is derived from a set of considerations that lie outside any specific choice-of-law
paradigm and is primarily concerned in preventing unfair choice-of-law results.
This fairness approach is deontological in substance and seeks to limit the result
that the choice-of-law inquiry could produce based on the rights that litigants are
perceived to possess.214 These rights are adjudicative rights designed to impose limits on
state authority and to protect individuals “from being forced to sacrifice for the good of
society as a whole.” 215 By this the fairness approach is differentiated from the
consequentalist approach, for according to the latter, rules are evaluated according to the
desirability of their consequences rather than their compatibility with the pre-existing
rights of the parties.216 However, this does not make the fairness approach a vested rights approach in the traditional territorial sense either. Rights within the fairness paradigm are not meant to identify the law that should be applied, but is primarily concerned with providing limits on applying state law to litigants.217 So while vested rights theory sought to design rights in a horizontal manner, defining the rights litigants had against one another, the fairness theory of rights is vertical in nature, designed to define the rights the
213 Two major articles stand out in this regard, Lea Brilmayer, Rights, Fairness, and Choice-of-Law, 98
YALE L.J. 1277 (1989); Terry S. Kogan, Toward a Jurisprudence of Choice-of-Law: The Propriety of Fairness over Comity, 62 N.Y.U. L. REV. 651 (1987)
214 Brilmayer, supra note 213, at 1278.
215 Id.
216 Id. at 1285.
217 Id. at 1291-92.
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individual litigant has against the state whose law is considered for application. 218
Additionally, the fairness paradigm is anchored in considerations of political legitimacy
rather than rigid territorial notions, inquiring, rather, into whether the application of the
laws of a certain state is fair.219
The question thus arises as to the criteria for determining the fairness of an application of a state law, which, it turns out, are deeply rooted in principles of political fairness.220 One major factor in this respect is consent.221 It is politically considered to be
just and fair to coerce an individual to follow the laws of a particular state when that
individual has consented (explicitly or implicitly) to the application of such laws.222 A
second factor is concerned with the availability of a political process for the individual
litigant burdened with the application of the particular state law to influence the shape
and design of such a law.223 In most cases the availability of such a political process is
dependent on the individual litigant’s domicile or citizenship in the state whose law is
identified as the governing law.224 A third factor in assessing the fairness of applying a
particular law is that of territoriality. Individuals present in the territory of a certain state
anticipate that their actions will be governed by local norms.225 However, this territorial
connection between the state and the individual foreign to the territorial unit needs to be
purposeful in order to “assure a minimal level of individual control over the legal norms
to which the individual will be subjected.”226 A fourth factor is that of mutuality,227 under
218 Id. at 1295.
219 Id. at 1295; Kogan, supra note 213, at 656, 694.
220 Brilmayer, supra note 213, at 1295.
221 Id. at 1298; Kogan, supra note 213, at 573.
222 Brilmayer, supra note 213, at 1298.
223 Kogan, supra note 213, at 699.
224 Brilmayer, supra note 213, at 1299-1300.
225 Id. at 1303.
226 Id. at 1307.
65
which a substantive rule should not be applied to an individual’s detriment unless that
individual would be eligible to receive the benefits of the rule if the tables were turned.228
Applying this notion of choice-of-law fairness to the inquiries undertaken in Qara’an and Amutat Kav La-Oved lends substantial policy support to the results reached in both of these decisions. Indeed, in a choice between Israeli and OPT law, when the defendant is an Israeli settler or and Israeli entity operating in the OPT and the plaintiff is a Palestinian that seeks the application of Israeli law, it is fair and just to have Israeli law govern the claim rather than OPT law. In terms of the first factor, it was not established in either case that the Palestinian plaintiff consented to the application of OPT law. In terms of the second factor, which in my opinion is especially relevant in a choice-of-law inquiry in the context of occupation, it is fairer to have the Israeli defendant burdened by the application of Israeli law rather than the Palestinian plaintiff burdened by the application of OPT law. Throughout the period of occupation, the Palestinian residents of the OPT had no meaningful political process by which the local residents could mobilize
to influence government and the shaping of the governing law.229 As George Bisharat has noted in his comprehensive sociological study on Palestinian lawyers working in the
context of Israeli occupation in the West Bank, “Israeli occupation introduced an alien
regime to the West bank”, 230 and local institutions, even when operated by local
Palestinian officials, such as the police and courts, were “recognized as mere shells of
their former selves, possessing no power independent of the military government…”231
227 Id. at 1308. Kogan articulates a similar principle under the heading of benefication. Kogan, supra note 213, at 674.
228 Brilmayer, supra note 213, at 1312.
229 See Mundlak, supra note 92, at 593.
230 BISHARAT, supra note 50, at 68.
231 Id.
66
On the other hand, Israeli settlers or other entities operating businesses in the OPT were
afforded full access to the political process that determines government in the OPT.232
Therefore, it should be generally held to be unfair to have Palestinian litigants burdened
by a law produced by a government the formation of which they have no political power
to influence, whereas the Israeli settlers and other entities operating in Israeli settlements
in the OPT, did. Arguably, it can be asserted that since local civil law in the OPT is
absorbed by the military government from the pre-existing legal system in the OPT, then
this law is the product of a political process of some sort. This assertion is unpersuasive,
given the prolonged state of occupation in the OPT. In over three decades of occupation
the local law has not been modified to any major extent, and the minor changes are those
introduced by Israel and are not the result of a political process by those governed by
local law. It is also important to note that the local Palestinian population in the OPT
seemed to cease to identify itself with the local legal system and connected institutions
after it came under the control of an occupying power. It is no surprise that immediately
after the Six-Day War the vast majority of judges resigned their posts, 233 and a
considerable number of Palestinian lawyers went on strike.234 Interacting with local legal
institutions, so it was perceived, would give legitimacy to Israeli actions.235
The two other factors pertaining to fairness also seem to buttress this conclusion.
Given the fact that settlements are generally governed by Israeli law, the territoriality
principle seems to back the application of Israeli law in respects of actions occurring
there. The mutuality factor also affords support to such a conclusion. Throughout the
232 Ben-Naftali et al., supra note 39, at 585.
233 ISRAEL NATIONAL SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS , THE RULE OF LAW IN THE AREAS ADMINISTERED BY ISRAEL 23 (1981).
234 BISHARAT, supra note 50, at 67..
235 SHEHADEH & KUTTAB, supra note 46, at 45-46.
67
settlement project in the OPT, the norms and designs articulated by the military
government and the Israeli government have worked to accommodate to the utmost the
interests of the settlers in the OPT while denying or circumventing those of the local
Palestinian population. Therefore, it is just and fair that settler entities also be held
accountable according to Israeli law standards when claims are filed against them by
local Palestinian plaintiffs.
This choice-of-law methodology based on fairness is evident only in one Israel
judgment that I managed to find: the Magistrate Court of Tel-Aviv's decision in
Muhammadah v. Yehoshu‘a.236 The fact pattern in this case was the same as in most of
the previously discussed cases. The plaintiff was a Palestinian from the West Bank who
was injured in a work related accident while being employed in a business operated by an
Israeli settler entity that had also acquired insurance from an Israeli insurance company to
cover its liability for work-related accidents. The plaintiff sought to have his claim
governed by Israeli law, but the defendants argued for the application of West Bank law.
The court ruled in favor of the plaintiff. In his judgment, Judge Boaz Okun, who
preceded the Israeli Supreme Court in referring to notions of public policy and justice,
concluded that in cases such as that of the present plaintiff West Bank law cannot be
applied if the plaintiff does not opt for its application. For in the context of the OPT the
local residents, Judge Okun observed, “do not live in a legal system that they developed.
They are subject to the instructions of the military commander.” In light of this basic
observation, Judge Okun concluded that the regular rules in choice-of-law, between two
sovereign nations, are not applicable in the context of an OPT civil action in which a
Palestinian is the plaintiff. Interestingly, Judge Okun cites in this respect the Abu-Attiya
236 CA 83875/95 (1998).
68
judgment in which it was indeed stated that the relations between Israel and the OPT are
not as those between two sovereign nations. But instead of such a relation bringing to the
dominance of Israeli interests in conflicts inquiries, a methodology the Abu-Attiya
decision was taken to represent, Okun sought to lessen such dominance precisely because
of the state of occupation.
It should be noted that resorting to the standards of choice-of-law fairness, either
in general or in the context of occupation in particular, still falls short of applying the
“better law” approach, which the Court in Qara’an seems to have some reservations
about. The fairness factors, as indicated before, are still within the confines of “the
spatially best solution” rather than “the materially best solution” methodology.237 They
seek to identify the jurisdiction the laws of which would be unfair to apply, rather than
the substantive norms the choice of which would undermine fair treatment of the parties
involved.
Nonetheless, and in spite of the Court’s reservations about the “better law”
approach, I think that such reservations are to a large extent irrelevant in the sphere of
occupation, especially when the choice-of-law inquiry is undertaken by the courts of the
occupying power and the occupation is of a prolonged nature.
Indeed, as David Cavers observed in his seminal 1933 essay, in a choice-of-law
inquiry “the court is not idly choosing a law: it is determining a controversy. How can it
choose wisely without considering how the choice will affect the controversy?”238 Later
in the twentieth century it was perceived to be a legitimate concern to evaluate the
“materially best solution” (as opposed to the spatially best solution) in the undertaken
237 See SCOLES ET. AL, supra note 212, at 48.
238 David Cavers, A Critique of the Choice-of-law Problem, 47 HARV. L. REV. 173, 189 (1933).
69
choice-of-law inquiry, something like a “look before you leap” approach. 239 Robert A.
Leflar has produced a list of “choice influencing considerations”. In addition to such
considerations as predictability of result, maintenance of interstate and international order, simplification of the judicial task, and the advancement of the forum’s governmental interests, there is also need to consider the better rule of law.240 In due course this better law consideration, even when taken as only one among a list of other considerations, has drawn criticism as well as support.241 The criticism seems to be based on the concern that a forum using a better law approach will have an institutional bias towards its own law.242
It has also been observed that courts will generally be unable to evaluate the nature and
virtue of foreign law, given their own legal background.243 Additionally, one could argue that from a separation of powers point of view, that a court will be going beyond its
judicial tasks when it evaluates the substantive nature of the competing norms. If the
norms in conflict are an output of a legislative process, then courts should generally
refrain from evaluating the substantive value of the norms. But it is questionable whether
these worries apply in respect of Israeli-OPT relations. After all, it was the Israeli
Supreme Court itself that emphasized throughout the years of occupation that the
relations between these jurisdictions are not identical to those among to sovereign states,
for the reason that the OPT are controlled by an Israeli organ and devoid of any foreign
sovereignty. In the preceding chapters we saw how this underlying perception worked to
afford Israeli courts more leeway in asserting their jurisdictional power in respect of OPT
239 See Gerhard Kegel, Paternal Home and Dream Home, Traditional Conflict of Laws and American
Reformers, 27 AM. J. COMP. L. 615, 616 (1979). See also SYMEON C. SYMEONIDES, THE AMERICANCHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE 25-26 (2006).
240 See Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. REV. 267, 282 (1966).
241 SCOLES ET. AL, supra note 212, at 53.
242 Id. at 53
243 Id. at 53, n.10
70
present defendants. In fact, this same perception has also worked to influence the
Supreme Court itself when faced with questions about the status of military orders issued
by the IDF military commander in the OPT, whether they are “foreign” or “domestic”
law, with the predominant approach considering such order as “domestic”.244 Arguably,
therefore, if Israeli jurisprudence has created such an intimate relationship with the OPT
legal system, issuing over 1,200 military orders regulating almost all spheres of life in the
OPT over the years,245 why then should Israeli courts refrain from evaluating the nature
and substance of OPT law, at least to the same extent as local Israeli norms are evaluated
when they come in conflict with each other? In this vein, therefore, it should be
legitimate for Israeli courts to consider the under-developed state of law in the OPT and
the interest of injured and grieved plaintiffs to recover full compensation when pressing
for their rights.246
At this stage it would probably have been appropriate to ask about the possible
ramifications of the establishment of the Palestinian Authority on the present and future
application of the Qara’an and Amutat Kav La-Oved. This question becomes even more
relevant in light of the fairness analysis afforded here to buttress the Court’s approach in
both these decision. The Palestinian Authority is a legislative entity with wide
jurisdiction capacity in matters of local civil law, and can possible work to reform the
current system and adapt to the wishes of the local Palestinian community both in the
244 See Hamadah, [2003] IsrSC 57 (3), at 22-23
245 See Raja Shehadeh, The Legislative Stages of the Israeli Military Occupation, in INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE
WEST BANK AND GAZA STRIP 151, 152 (Emma Playfair ed., 1992).
246 See Luther L. McDougal III, Toward Application of the Best Rule of Law in Choice-of-Law Cases, 35
MERCER L. REV. 483 (1984); SCOLES ET AL., supra note 212, at 57.
71
West Bank and in the Gaza Strip. 247 And the more independence the Palestinian
Authority will gain, the more meaningful the local political process will become from the
point of view of the local community. In fact, so extensive are the ramifications of this
new reality that it deserves a study of its own. This study, as stated in the introduction, is
concerned with the evolvement of Israeli choice-of-law methodology when Israel had full
control of the OPT. And although this reality seems to be evolving in a different direction
at present, and will probably continue to do so in the foreseeable future, occupation
undoubtedly presents choice-of-law theory with a challenge that has not been fully
answered. The development of Israeli choice-of-law rules with respect to OPT-related
civil litigation stands as especially important in the general literature on choice-of-law.
Conclusion
Choice-of-law in the context of occupation seems to evolve along specific lines. In this article I have tried to shed some light on how Israeli courts have come to conduct their choice-of-law analysis in OPT related civil disputes. As the analysis shows, the courts were at first very much attuned to official state policy towards the Occupied Palestinian Territories and worked explicitly to accommodate this policy in their choice-of-law inquiries. However, in two recent judgments the Israeli Supreme Court introduced a whole new approach that to a large extent negates all that was constructed in terms of
choice-of-law methodology in previous years. This approach, though lacking in providing 247 See e.g., Eyal Benvenisti, The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement, 4 EUR. J. INT’L L. 542, 549 (1993); David L. Schulman, The Israel-PLO Accords on the Declaration of Principles on Interim Self-Government Arrangements: The First Step Towards Palestinian Self-Determination, 7 EMORY INT’L L. REV. 793 (1993); Raja Shehadeh, Questions of Jurisdiction: A Legal Analysis of the Gaza-Jericho Agreement, 23 J. PALESTINE STUD. 18, 22-23 (1994); Jill Allison
Weiner, Israel, Palestine, and the Oslo Accords, 23 FORDHAM INT’L L.J. 230, 253-259 (1999); Justus R. Weiner, Co-Existence Without Conflict: The Implementation of Legal Structure for Israeli-Palestinian Cooperation Pursuant to the Interim Peace Agreements, 26 BROOKLYN J. INT’L L. 591 (2000).
72
solid policy concerns, is nevertheless just and fair. More intriguing is that choice-of-law theory is already equipped with sufficient doctrines, namely those pertaining to choiceof-law fairness, that lend substantial support to the court’s policy concern. May justice and fairness come to characterize all relations among Palestinians and Israelis, and may what has evolved in conflicts theory come to direct these relations rather than be dictated by them.

 

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