Which Law Applies in the West Bank, and to Whom?
Israel’s Supreme Court, the 1995 Interim Agreement and the 2005 outposts opinion on which law applies in the West Bank, and to whom.
About 700 dunams outside Nablus were taken under order of possession 16/79, and on 22 October 1979 the Supreme Court of Israel ruled that order invalid as to the petitioners’ registered plots, about 125 dunams. That judgment locates the governing authority in the area: the Hague Regulations bind the military administration, and the legislative and administrative power sits with the IDF area commander. The Interim Agreement signed by Israel and the PLO on 28 September 1995 then divided civil and security powers by area, and its Article XVII states that the Palestinian Council’s personal jurisdiction applies “to all persons, except for Israelis.”
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| 5 to 0 | Justices holding order of possession 16/79 invalid as to the petitioners’ registered plots | Supreme Court of Israel | Judgment of 22 October 1979 |
| About 700 dunams | Territory covered by that order, of which the petitioners’ registered plots were about 125 dunams | Supreme Court of Israel | Order signed 5 June 1979 |
| Article XVII | The clause setting territorial, functional and personal limits on the Palestinian Council’s jurisdiction | Israel and the PLO | Signed 28 September 1995 |
| 105 | Unauthorized outposts known to the author, stated as probably not the true number | Prime Minister’s Office of Israel | March 2005 |
| NIS 71,870,000 | Outlay on unauthorized outposts, the spending Ministry’s own figure over a partial list | Prime Minister’s Office of Israel | 2000 to 2004 |
Elon Moreh holds the military commander governs the area
The Supreme Court held that the Hague Regulations bind the military administration as customary international law, and that requisition of private land for a civilian settlement is not barred in principle. The petition succeeded on the facts of this requisition, under a dominant-purpose test: the political level initiated the settlement and the professional military opinion followed. The judgment is set out in full in the Elon Moreh case record.
| Question | What the judgment states |
|---|---|
| Which law binds the administration | The Hague Regulations, as customary international law, “do indeed bind the military administration in Judea and Samaria” |
| Requisition for a civilian settlement | “Potentially justified under Article 52 of the Hague Regulations,” where military needs in practice brought about the decision |
| Why this order fell | The military consideration “was subordinate to the primary, political decision to build the settlement” |
| Permanence | A military administration cannot create facts “in advance intended to exist past the end of the military rule in that area” |
| Article 49(6), Fourth Geneva Convention | Expressly not decided, as treaty law “not binding law in an Israeli Court” |
Source: Supreme Court of Israel, HCJ 390/79 Dweikat v. Government of Israel, judgment of 22 October 1979, in the English translation published by the Cardozo Israeli Supreme Court Project. The Levy Commission, appointed by the Prime Minister in February 2012, stated the contrary position, that the classical laws of occupation “cannot be considered applicable” to Israel’s presence in the area; its report records that implementation would require a government decision.
Oslo II Article XVII excludes Israelis from the Council’s jurisdiction
The Interim Agreement states the split as text rather than as practice, and it runs along two axes at once: by area, and by person. Article XXXI(13)(a) states that the annexes, appendices and maps “shall constitute an integral part hereof,” so the area maps are part of the instrument, as is the water arrangement recorded in the Oslo II water allocation.
| Provision | What the text states |
|---|---|
| Article XI(3) | Areas A and B are the populated areas shaded on attached map 1; Area C is “areas of the West Bank outside Areas A and B” |
| Article XI(2) | All civil powers including planning and zoning pass to the Council in Areas A and B; in Area C, Israel transfers “civil powers and responsibilities not relating to territory” |
| Article XIII | The Council takes internal security and public order in Area A; in Area B it takes public order for Palestinians, with Israel holding “the overriding responsibility for security” |
| Article XVII(2) | Territorial jurisdiction covers West Bank territory “except for Area C”; personal jurisdiction applies “to all persons, except for Israelis” |
| Article XVII(1) | Jerusalem, settlements, specified military locations, refugees, borders, foreign relations and Israelis are outside the Council’s jurisdiction |
| Article XII(5) | “‘the Settlements’ means, in the West Bank the settlements in Area C” |
Source: Israel and the PLO, the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed 28 September 1995, English text published by the Israeli Ministry of Foreign Affairs. Article XI(2)(d) and Annex I provide three further redeployments at six-month intervals, to be completed within 18 months of the Council’s inauguration.
The 2005 opinion names the Israeli ministries acting in the area
The Prime Minister’s Office published, in English, an opinion on unauthorized outposts prepared at the request of the Prime Minister’s bureau, and it names the Israeli bodies that financed and serviced them. The Ministry of Construction and Housing put its outlay on unauthorized outposts between 2000 and 2004 at NIS 71,870,000, the Ministry’s own figure over a partial list. The wider funding record is set out in what Israeli law says about the state’s role in settlements.
| Body | What the opinion records |
|---|---|
| Civil Administration, Infrastructure Department | Supplied the outpost data, which the author states did not arrive in full |
| Ministry of Construction and Housing | NIS 71,870,000 spent on unauthorized outposts, 2000 to 2004, the Ministry’s own figure |
| Ministry of Defense | 81 outposts evacuated, its own data, covering only outposts established after March 2001 |
| Settlement Division, World Zionist Organization | Named among the bodies financing and servicing unauthorized outposts |
HCJ 8091/14 records Regulation 119 in force through military legislation
The Supreme Court reproduced Regulation 119 of the Defence (Emergency) Regulations, 1945 in its current language, under which “a Military Commander may by order direct the forfeiture to the Government of Israel of any house, structure, or land” in the stated circumstances, and may then destroy it. Justice Hayut recorded that the regulation “currently forms part of Israel’s positive law,” its validity maintained by section 10 of Basic Law: Human Dignity and Liberty. The petition was denied subject to paragraph 27, which held that proportionality does not allow the Court to assume the measure achieves deterrence “unless all of the data that properly confirms that hypothesis is presented to us for our review.”
The State’s own account of use, as recorded in the judgment of 31 December 2014, is a count of orders and buildings and not of persons:
- Since 2005, the military commander has exercised the authority “only several times,” on the Respondents’ own statement
- Two residential buildings in East Jerusalem in 2008 to 2009, with a third use not realised
- Four buildings in the summer of 2014
- Five orders then pending against buildings in East Jerusalem, and one further order implemented
Source: Supreme Court of Israel, HCJ 8091/14 HaMoked v. Minister of Defense, judgment of 31 December 2014, in the Cardozo Israeli Supreme Court Project translation.
No Israeli body publishes a comparative count of the two tracks
The State Comptroller of Israel published a follow-up audit of the Samaria and Judea District of the Israel Police in May 2022, examining the district between February and August 2021 with supplementary examinations to November 2021. It publishes no comparative caseload figures across the military courts and the Israeli civil courts, and no complaint, investigation, indictment or conviction count for offences by Israeli civilians against Palestinians. Sections of the report were published under confidentiality, so each count below is a floor.
| Figure | What it counts | Period |
|---|---|---|
| 12,865 | Cases opened in the district for disturbing public order, security violations and damage to property | 2020 |
| 48,371 | Traffic tickets issued in the district, 36,074 of them to Palestinians, which the audit writes as about 75% | 2020 |
| NIS 270 million | The audit’s own estimate of traffic fines issued to Palestinian drivers and left uncollected | 2014 to 2021 |
| 2.67 seconds | Average response time on the district’s emergency hotlines, against a 4.14-second national average, which the audit states is 35% shorter | As at the audit |
Source: State Comptroller of Israel, interdisciplinary audit of the Samaria and Judea District of the Israel Police, follow-up audit, State Comptroller Report, May 2022, chapter four.
Which figures here may not be added together?
The 12,865 criminal case openings and the 48,371 traffic tickets are different universes and may not be summed or divided into one another. The 105 outposts is a floor, stated by the opinion as probably not the true number, and the four land-status categories total 87, leaving 18 whose nature the author could not resolve; the opinion prints no total, so any sum of those categories is the reader’s arithmetic and not the report’s count. The NIS 71,870,000 and the 81 evacuations are the spending and evacuating ministries’ own figures, the latter covering only outposts established after March 2001. The Regulation 119 text quoted above is the current Israeli version the Court applied, which differs from the 1945 Mandate wording, and the State’s account of use counts orders and buildings, never persons.
Questions readers ask
Which law did the Supreme Court say applies in the area?
The Court held that the Hague Regulations, as customary international law, bind the military administration, and that the Fourth Geneva Convention, as treaty law, is not applied by an Israeli court.
Did the Elon Moreh judgment hold settlements unlawful?
No. The judgment states that requisition of private land for a civilian settlement is “potentially justified under Article 52 of the Hague Regulations,” and it struck down one order on its facts.
Did the Court rule on Article 49(6) of the Fourth Geneva Convention?
It expressly refrained. Justice Witkon wrote that the question whether voluntary settlement is a transfer under 49(6) “is not easy, and as far as we know, it has yet to be resolved in international case law.”
What does Oslo II say about jurisdiction over Israelis?
Article XVII(2) states that the Council’s personal jurisdiction applies “to all persons, except for Israelis,” and Article XVII(1) places settlements, specified military locations and Israelis outside its jurisdiction.
How does Oslo II divide security responsibility?
The Council takes internal security and public order in Area A; in Area B it takes public order for Palestinians, while Israel holds “the overriding responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism.”
Does Oslo II state what share of the West Bank is Area C?
No. Areas A and B are defined by lines and shading on the attached map, Area C is defined as what is left, and the Agreement prints no territorial percentage.
Which Israeli bodies does the 2005 opinion name?
The Civil Administration, the Ministry of Construction and Housing, the Ministry of Defense and the Settlement Division of the World Zionist Organization.
Is 105 the number of unauthorized outposts?
It is the number known to the author in March 2005, stated in the same sentence as probably not reflecting the true number, and it excludes unauthorized construction adjoining a recognized settlement.
Who decides a punitive demolition under Regulation 119?
The regulation as quoted by the Court gives the power to a military commander, with the Defence Minister able to remit the forfeiture in whole or in part.
How often did the State say Regulation 119 had been used?
On the Respondents’ own account recorded in the 2014 judgment, “only several times” since 2005, itemised as two buildings in 2008 to 2009, four in the summer of 2014, five pending orders and one further order implemented.
Does any Israeli body publish a side-by-side caseload count?
None was located in the audits banked here. The May 2022 audit covers policing capability and publishes no comparative figures across the military courts and the Israeli civil courts.
Sources
- Israel and the PLO, 1995. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip. Articles XI, XII, XIII, XVII and XXXI, with Annex I. English text published by the Israeli Ministry of Foreign Affairs. Official or primary record.
- Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979, Cardozo Israeli Supreme Court Project translation. Official or primary record.
- Israeli Supreme Court, 2014. HCJ 8091/14 HaMoked: Center for the Defense of the Individual v. Minister of Defense. Judgment of 31 December 2014, Cardozo Israeli Supreme Court Project translation. Official or primary record.
- Levy, E. E., Shapira, T., and Baker, A., Commission to Examine the Status of Building in Judea and Samaria, 2012. Report on the Legal Status of Building in Judea and Samaria. Signed 21 June 2012. Government-commissioned report.
- Prime Minister’s Office of Israel, 2005. Summary of the Opinion Concerning Unauthorized Outposts. Published 10 March 2005. Official or primary record.
- State Comptroller of Israel, 2022. Samaria and Judea District of the Israel Police, Follow-up Audit. State Comptroller Report, May 2022, chapter four, page 321. Catalogue Number 2022-A-002. Official or primary record.
