Judicial Review of Military Courts in the West Bank (Judea and Samaria) in Administrative Affairs – between International Law and Administrative Law
51 ISRAEL YEARBOOK ON HUMAN RIGHTS
34 Pages Posted: 9 Mar 2021
Date Written: March 8, 2021
According to international law, the primary role of military courts is to assist in enforcing public order and security. Thus, their central activities deal with criminal law. However, the military courts in the West Bank (hereinafter, the “Region”) play another significant role by conducting judicial review over the administrative authorities in the Region, first and foremost, by guaranteeing human rights and property rights. This article describes this unique aspect of the military courts’ activity: their judicial review over administrative affairs. This article points out several institutional shortcomings regarding the implementation of judicial review in the Region, mainly in administrative affairs. These include inadequate judicial powers and possible institutional conflicts of interest. The article argues that considering the importance of those issues and the sensitivities regarding land disputes in the Region, such institutional shortcomings require legal reforms, devised according to international law and administrative law.
This article suggests a normative reform according to which the military courts’ power to review the administrative bodies in the Region would be expanded. Three theoretical justifications are the basis of the article. First, the suggested reform will strengthen the principle of “separation of powers” in the Region. According to international law, the military commander in the Region serves as both the executive and legislative branches in the Region. Hence, more checks and balances are required. A fine-tuning is needed which shall bring better supervision by the judiciary over the actions of the two other branches in the Region. Second, the suggested reform will minimize possible institutional conflicts-of-interest by administrative authorities in the Region and improve the appearance of due process in those procedures. Third, these suggestions are intertwined with other institutional reforms initiated in the Region during the last years, expanding the jurisdiction and the authorities of the military courts to review the administrative authorities in the Region.
Keywords: Judicial Review, Military Courts, International Law, Administrative Law
Suggested Citation: Suggested Citation