Living in Denial: The Application of Human Rights in the Occupied Territories

Israel Law Review, Vol. 37, No. 1, pp. 17-118, 2003-2004

Posted: 29 Apr 2005

See all articles by Orna Ben-Naftali

Orna Ben-Naftali

T; The Emile Zola Chair for Human Rights

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Abstract

Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israel's three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israel's refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.

Keywords: occupation, humanitarian law, human rights, laws of war, israel, palestine, occupied territores

JEL Classification: K33

Suggested Citation

Ben-Naftali, Orna and Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories. Israel Law Review, Vol. 37, No. 1, pp. 17-118, 2003-2004, Available at SSRN: https://ssrn.com/abstract=712002

Orna Ben-Naftali

T ( email )

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The Emile Zola Chair for Human Rights ( email )

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Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

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Mount Scopus, IL 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

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Jerusalem
Israel

HOME PAGE: http://www.idi.org.il

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