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The Israeli High Court of Justice building in Jerusalem.

In a recent judgment handed down on 6 August 2008 by the Israeli High Court of Justice (HCJ), in the case of HCJ 5093/06 Association for Eretz Israel (Kedumim) Elon Moreh v State of Israel[1] the HCJ extended the judicial arm of the occupation beyond the Israeli military court system and into the national Israeli civilian court system by manipulatively twisting the Oslo Accords.  

The case arrived to the HCJ following an appeal of the Jerusalem District Court, ruling that the Palestinian Authority (PA) is a body possessing sufficient sovereign status, such that it cannot be sued in civil proceedings under national Israeli law. This ruling further confirms the fact that the local laws in the occupied Palestinian territories remain intact under the most fundamental principle of the law of occupation under international humanitarian law, found in Article 43 of the Hague Regulations 1907 (i.e. also known as the 'life continues as normally as possible' principle), acknowledging even indirectly the considerable legitimacy of an autonomous governing body over Palestine. 

The HCJ reversed this judgment by upholding that the District Court did not have jurisdiction to decide on the question of the sovereignty of the PA, whilst noting that this is a matter for the Israeli Foreign Minister to decide on a case-by-case basis. In its ruling, the HCJ recalled that the PA does not comply with the traditional public international law prerequisite for the definition of a State.

Confirming the Non-Sovereignty of the Palestinian Authority

This HCJ decision manages to boldly reject any claim to sovereignty, however partial, of the governing bodies of the Palestinian Authority, thereby also sustaining in practice the claims of many human rights and humanitarian organizations which attest to the unquestionable control of Israel over the administration of all areas of the occupied Palestinian territories, both the West Bank and the Gaza Strip, including those areas and institutions Israel claims to have transferred to the PA following the Oslo Accords).

Without any reference to specific sources of public international law—the sovereignty of a State under the Westphalian doctrine, the principle of non-intervention[2] or any other relevant international legal instrument governing the situation in Palestine under the Israeli Belligerent Occupation—the Israeli High Court confirmed that the question of whether the PA is or is not immune to the executive or judicial jurisdiction of Israeli authorities should be treated as a “factual-political” matter to be handled by the relevant executive bodies, namely the Israeli Foreign Ministry. Nonetheless, the Court does note that the conclusions arrived at by the Ministry should be done in consideration of the fact that the PA does not comply with the prerequisites for the attainment of statehood in international law (para. 12 of the judgment).

A Unilateral Implementation of Oslo

In conclusion to the arguments used in its judgment, the High Court decided to return the case to the District Court while commanding the latter to reconsider the issues at hand in light of the position paper on the question of the sovereignty of the PA that would be presented to it by the Israeli Foreign Minister (para. 13 of the judgment). On the whole, it can be deduced that the Supreme Court accepted that these issues can and should remain in the hands of the Israeli judiciary and resolved in coordination and consultation with the relevant executive branch officials.

Following the 1995 Interim Agreements between Israel and the PA, the enforcement of judgments in Areas A of the West Bank is mutual and should be enforced by each one of the parties as though the judgments were handed down by their own judicial bodies (para. 2 of the judgment). Although PA refusal to enforce a ruling of an Israeli judicial authority provided the basis for the original petition, it does not and should not, according to Judge Okon of the District Court, mean that the Israeli judicial authorities can allow admission of lawsuits against the PA for failing to comply with its legal obligations under the Oslo Accords. If this is so then the opposite would also be possible, and Israeli would be swamped with lawsuits coming from the Israeli courts.

Filing the suit in this particular case is the Association for Eretz Israel, a registered charity under the Charities law in Israel that promotes the acquisition of land in the West Bank by Jews. After acquiring a number of plots in Areas A of the West Bank—territories that are, following the Oslo Accords, purportedly under the exclusive administration of the PA—the Association for Eretz Israel filed a suit against the PA for failing to return the money it had paid for the land.

Notably, this acquisition of land was not only illegal as the land had belonged to private individuals as well as to the PA itself in parts, but was also illegal under the law of occupation in international humanitarian and international human rights law, which very arguably view such instances as expropriations of private property and land, as well as the clear exploitation of the desperate situation of the occupied population, that relies heavily on the Israeli Belligerent Occupant for all of its most basic daily needs.

More so, the Oslo Accords have created a factual situation where since the mid-90's the PA was seen to be the chief and only administrator of Area A land in the West Bank. Academics such as Dajani have argued extensively that the PA's consistent participation in the peace negotiations and other diplomatic processes has given it recognition as the official representative of the Palestinian people and a de facto statal authority for all international political and even legal purposes.[3]

A Powerless and Even More Penniless Palestinian Authority

There are roughly 150 legal cases currently pending in Israeli courts against the PA, mainly as part of compensation claims from families of victims of attacks. The aforementioned HCJ decision means that for this purpose, the PA would be forced to produce any payments provided for in judgements of these lawsuits, as the awards are enforced through the Israeli civilian court system. What it means in practice, however, is that the money provided in taxes by the PA to the Israeli Belligerent Occupant will be delivered directly into the hands of the claiming victims as immediate relief.

Such a perceived Israeli victory should remind one of the current utter disregard of the Israeli military and other authorities from meeting its statal and individual responsibilities in the very same situation in cases of deaths caused to Palestinians victims of Israeli army and settler violence, house demolitions, expropriation of private and public property by the Belligerent Occupant and the settler populations (violating Article 49 of the Fourth Geneva Convention), whose presence in the West Bank is being maintained and protected in a determined and unremitting manner by the Israeli military forces. In all such cases, the State of Israel has continuously managed to sweep its responsibility out of the way and utterly disregard its obligations under international law.

A Similar Perception of the English Courts

The question of jurisdictional extent has recently come up not only in the Palestine/Israel context but also in the English courts, which have been swamped by judicial disputes lodged between Russian oligarchs who fled from President Putin’s iron-fisted administration in Russia and now reside in the UK. The English High Court recently upheld that it can and should have jurisdiction in cases where there is clear, and as it happened to be in the particular case, overwhelming evidence to evince that justice (and a fair trial) would not be delivered in the natural forum.[4] Judicial imperialism is unquestionably one of the most self-justificatory ways to legitimize and normalize a present-day reality that may or may not necessarily comply with applicable legal frameworks—this pertains to both the Russian and the Palestinian scenario.

The most interesting aspect of the English Court’s judgment in the case of Cherney v Depripaska[5] was that although Justice Clarke remarked boldly that the admittance of jurisdiction by the English Court does not mean that a fair trial can never be obtained in the Russian judicial system (para. 248 of the High Court's judgment); nevertheless, the risk inherent for a lack of a fair trial is sufficient to make England the forum for the case (para. 264).

Notably, although the judgment of the English High Court seeks to restrict its own precedent-setting effect to a very limited number of cases, where the publicity of the figures involved and the subject matter tried would be scrutinized in deciding the supremacy of the English jurisdiction over the natural forum, this has the unquestionable effect of considerably widening the English judicial arm, a doctrine that can be expected to resurface in similar claims in the future.

Intrusive or Inclusive?

The decision of the Israeli HCJ could be interpreted and perceived in a number of ways, and I suggest that two of these implications be considered in light of the above.

First, the possibility that the extension of the judicial arm of the Occupant's powers over the Palestinian Authority and Areas A of the West Bank is paradoxical in the sense that it contradicts the Israeli claims that have, since the Oslo Accords, constantly confirmed that Area A land has been handed over completely to the PA. In other words, the inclusion of Area A territory in the scope of the Israeli administration extends the Israeli authorities’ obligations towards the PA and the Palestinian people presently under its governance and potential control.[6] What has been termed as the “puppet show” of the Israeli authorities by a number of human rights groups, is now being confirmed a reality through this judgment, in which the Israeli courts solidify a precedent that gives way for the executive branch to assert authority over PA affairs whenever and to whatever extent it deems necessary.

A second possible interpretation of these judicial proceedings is that the legitimization of such an extension in the context of the occupied Palestinian territories is counter-productive to the Israeli position, which has aimed to both evade responsibility and comply with Oslo, conveniently and selectively invoking its provisions in relation to Israel’s self-defined needs.[7] The inclusive interpretation equally legitimizes Israel’s assertion of its military judicial arm in the West Bank and beyond.[8] At the end of the day, what matters is the end result: All of the West Bank is under the full control of the Israeli authorities, whilst the role of the PA is to serve Israeli interests, with no authority or decision-making power of its own.

Unprecedented Enforcement of Foreign Judgments

Recently, on 2 September 2008, the District Court in Jerusalem (Case No. 4318/05) confirmed the possibility of enforcing American judgments that oblige the PA to compensate families of victims of the 1996 terror attacks with 116 million dollars.[9]  This was marked as an unprecedented decision of the Israeli courts, upheld despite the overwhelming legitimacy of the argumentation presented by the PA’s attorney, Adv. Yossi Arnon. The PA submitted that such precedent cannot stand as it violates its territorial sovereignty, and because it involves a compensation claim of a unique and exceptional type. They further held that the enforcement of a foreign judgment of this kind will indisputably have draconian consequences in the public, political, defense, and economic spheres for Israel and its citizens.

The PA's appeal in this case was rejected outright. The PA was furthermore obliged to pay the attorney's costs and fees in the sum of one million shekels, due to the expensive nature of the judicial process. The Ongar and Dasberg families are now legally entitled to the moneys of the PA that were confiscated from banks in Ramallah a while back.

Valentina Azarov is a Legal Researcher at Hamoked: Center for the Defence of the Individual. 

The opinions expressed in this piece are the author’s own and should not be attributed to Hamoked.