Justice for Occupied Territory--The Israeli High Court of Justice Paradigm
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Justice for Occupied Territory? The Israeli
High Court of Justice Paradigm
ESTHER ROSALIND COHEN*
After the June 1967 War, the inhabitants of the occupied territo-
ries-the West Bank and East Jerusalem, the Golan Heights, the
Sinai Peninsula, and the Gaza Strip-were allowed to present claims
against the State of Israel, the Military Government, and its authori-
ties before the Israeli High Court.' This was a novelty in interna-
tional practice. Never before had an occupier allowed its legislative
or executive acts to be challenged before its own courts by individuals
from territory it occupied. Indeed, there was no specific basis either
in Israeli law or in international law for the Israeli decision. It simply
became accepted that state attorneys would not raise a jurisdictional
question.2
Since 1967 Israel has occupied and withdrawn from various
neighboring territories.3 Most recently, during the Operation Peace of
* Professor of Law and Political Science, Bar Ilan University; B.A., Columbia Univer-
sity; B.H.L., Jewish Theological Seminary; M.A., Ph.D., Hebrew University, Jerusalem.
1. The Israeli Supreme Court has two functions: to serve as an appellate court in civil
and criminal appeals from judgments of District Courts, and to sit as a High Court of Justice.
The Israeli High Court of Justice, based on the English legal prototype, presides over litigation
between the individual and the government, exercising judicial review of the acts of public
officials to ensure that the officials do not exceed or abuse their powers. The High Court
thereby assists individuals in obtaining justice and helps to assure the dominance of the rule of
law.
2. In the very first case against the Military Commander before the High Court, Stekol v.
Minister of Defense, decided on June 20, 1967 (unreported), the State Attorney declared that
he would not challenge the competence of the court to review the acts of the military authori-
ties in the administered areas. Cited in Nathan, The Power of Supervision of the High Court of
Justice over Military Government, in 1 MILITARY GOVERNMENT IN THE TERRITORIES
ADMINISTERED BY ISRAEL 114 (M. Shamgar ed. 1982) [hereinafter cited as MILITARY
GOVERNMENT].
3. The Sinai Peninsula was returned to Egypt under the Treaty of Peace between the](ViewImageLocal?handle=hein.journals/cjtl24&div=34&collection=&method=preview&ext=.png&size=3)
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Justice for Occupied Territory--The Israeli High Court of Justice Paradigm
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