The Declining Status of International Law in the Decisions of the Israeli Supreme Court Concerning the Occupied Territories
International Journal of Constitutional Law (Forthcoming)
27 Pages Posted: 30 Nov 2017 Last revised: 5 Apr 2019
Date Written: July 15, 2017
This article examines the attitude of the Supreme Court of Israel towards international law in the past decade, focusing on cases concerning the Occupied Territories. The article argues that the status of international law in these decisions has, overall, declined, in compare to the decade between the mid-1990’s and the mid 2000’s. The article argues that while the international law of occupation still operates, officially, as the governing law in the Occupied Territories, the emphasis on compliance with the norms of international law in the Court’s decisions has decreased. Instead of relying on international law, the Court has increased its reliance on Israeli administrative law, and, in recent years, on Israeli constitutional law.
The article suggests that the decline in the status of international law is rooted in a different perception of the role of the Court in relation to its international and domestic audiences, and that the change is related, at least partially, to the current attacks on the Court. Between the mid-1990’s and the mid-2000’s, the Court, under former President Barak’s leadership, perceived itself to be part of the “Global Community of Courts”, a transnational legal community of international and national courts engaging in an ongoing dialogue, reading and citing each other’s opinions and participating in what they perceive as a common judicial enterprise. The Court thus directed its decisions not only to the Israeli public but also to the international community and, in particular, to the international legal community, referred to by Schachter as the “invisible college of international lawyers”. The current Court, on the other hand, is struggling to maintain its status in within Israel. It thus focuses on its Israeli audience, addressing in its decisions, first and foremost, the Israeli public.
While relying on international law may increase the legitimacy of the Court’s decisions among an international audience, the article argues that it may have the opposite effect on an Israeli audience, in particular in the current political climate. The recent Court thus retreats from the extensive referral to international law in favor of an approach that examines issues that arise in the Occupied Territories as if they were, essentially, internal Israeli matters, in a manner that coincides with the prevailing political discourse regarding the future of the Occupied Territories.
Keywords: International law in domestic courts, law of occupation, Israel
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