Enforcing illegality: Israel’s military justice in the West Bank

Daniele, L ORCID: https://orcid.org/0000-0002-2451-2380, 2017. Enforcing illegality: Israel’s military justice in the West Bank. Questions of International Law, 44, pp. 21-40. ISSN 2284-2969

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Abstract

The present article presents a critical overview of the main legal questions which arise from the Israeli military justice system in the West Bank. It commences from the inception of the system, focusing on the domestic Israeli approach to its juridical configuration and the manner in which this informed the interpretation of international law and its applicability in the occupied Palestinian territory. The article then proceeds to analyse the sources of the system through the distinctive concentration of powers underlying its structure, in which legislative, executive and judicial prerogatives are entrusted to the Israeli military. The critical overview concludes with an investigation of the substantive law of the military justice system, and its interactions with the wider Israeli institutional apparatus exercising control over the territorial space and the population movement in the West Bank.
The analysis of the concrete operation of the system, through comparison with Israeli domestic law and its impact on the human rights of the Palestinian population, reveals a significant degree of incompatibility not only with international law, but – more profoundly – with the fundamental principles determining the parameters of the liberal-democratic model of justice in legal orders governed by the rule of law.
The legal landscape resulting from this overview indicates, on the part of Israel, more than merely the unintended consequences of legitimate security concerns and policies; rather, it suggests a precise choice, instrumental to, and a reflection of, a wider project of permanent territorial control pursued by the Israeli authorities in the West Bank. Thus, this practice is in direct contrast with the international legal principles governing occupation: non-acquisition of sovereignty, duties to administer the occupied territory for the benefit of the local population, and temporariness.
In addition, the military justice system, through the creation of a semblance of judicial review – both for the offences of the population under occupation and for the actions of the occupying forces – assumes the paradoxical function of legitimizing and protecting through penal sanctions the implementation of an illegal project.

Item Type:	Journal article
Publication Title:	Questions of International Law
Creators:	Daniele, L.
Publisher:	Editoriale Scientifica
Date:	30 November 2017
Volume:	44
ISSN:	2284-2969
Divisions:	Schools > Nottingham Law School
Record created by:	Jonathan Gallacher
Date Added:	13 Mar 2018 12:35
Last Modified:	13 Mar 2018 12:35
URI:	https://irep.ntu.ac.uk/id/eprint/32935

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