The Missing Reversioner by Yehuda Z. Blum
Reflections On The Status of Judea And Samaria
Two recent decisions handed down by the Hebron magistrate, Mr. Hussein El-Shajuchi, and by the Bethlehem magistrate, Mr. Tawfik El-Sakka, on February 5, 1968 and on February 27, 1968, respectively, have brought to the fore some interesting legal problems arising from the Six Day War of June, 1967 as a result of which Judea and Samaria (formerly known as the "West Bank" of the Kingdom of Jordan) have come under Israeli control.
The immediate cause that has given rise to the elaboration by the two learned magistrates of the problems to be dealt with in this paper was the promulgation by the Officer Commanding, Israel Defence Forces in Judea and Samaria, on October 23, 1967, of Order No. 145, concerning the status of Israeli advocates in the courts of Judea and Samaria. Article 2 of the said Order provides that "notwithstanding any existing provisions to the contrary, any party to civil proceedings and any defendant in criminal proceedings may authorise an Israeli advocate to represent him in such proceedings." Article 4 of the same Order stipulates that the Order shall be in force for a period of six months from the date of its entry into force (i.e. October 23, 1967) unless it is terminated at an earlier date by the Officer Commanding, Israel Defence Forces in Judea and Samaria.A In the preamble to the Order the reasons given for its promulgation are "to ensure the efficient maintenance of the law, to enable the uninterrupted functioning of the Courts in the District [of Judea and Samaria] and to make available the services of advocates to the local population." As will be more fully explained later, the reason for promulgating this Order was the strike of Arab lawyers in Judea and Samaria, which threatened to deprive courts and clients there of legal services. An Israeli lawyer appearing before the Hebron magistrate in accordance with the provisions of the Order here under consideration was disqualified by the latter on February 5, 1968 on a number of grounds which may be summarised as follows:
(a) The "West Bank" constitutes an integral part of the Kingdom of Jordan which remains the legitimate sovereign over it, in spite of the temporary occupation of the territory by Israel;
(b) The occupying authorities may not legislate for the occupied territory or alter in any manner the law in force there, save as far as is required for the protection of their military forces and for the promotion of their military objectives;
(c) Order No. 145 constitutes as impermissible act of legislation and an unauthorised interference with the activities of the courts of the legitimate sovereign.
The learned magistrate further held that under international law he was required to hand down his judgments and other judicial decisions "in the name of the legitimate ruler of the West Bank, His Glorious Majesty King Hussein."
The Bethlehem magistrate, on the other hand, in a decision of February 27, 1968, reached a diametrically opposed legal conclusion concerning the validity of Order No. 145. He too took the view that the West Bank being under the military occupation of Israel, the relevant rules of international law applied to the matter. Citing Article 43 of the Hague Regulations of 1907 and Article 64 of the Fourth Geneva Red Cross Convention of 1949, he expressed the view that since an occupant was responsible for public order and safety in the occupied territory, he was entitled-and indeed under the duty-to enact such laws as he might deem necessary for ensuring the wellbeing of the local population. He further held that it was for the occupant alone to determine whether a given enactment was in fact necessary for the said purposes. In his view, the occupant's determination on this point could not be challenged by the local courts for whom such determination must be regarded as conclusive. In view of the preambular provisions of Order No. 145 referred to above, the magistrate therefore decided that he was not entitled to question the legality of the said Order. In his decision, handed down "in the name of Law and Justice", he accordingly allowed the Israeli advocate to plead before him.
Four legal problems touched upon in the two decisions referred to appear to be worth discussing in greater detail:
(a) What is the juridical status, under international law, of Judea and Samaria, and what are the respective rights of Jordan and Israel over that territory?
(b) Assuming that the status of Israel in Judea and Samaria is merely that of a "belligerent occupant", can Order No. 145 be justified on legal grounds?
(c) Are courts in occupied territory authorised to review the legislative activities of the occupant and to pass on their legality?
(d) Is the occupant entitled to alter the formula employed by the local courts for the pronouncement of judgments?
It is now proposed to deal in turn with these questions.