In general, civilians living under military occupation should continue to be subject to their own laws and tried in their own courts. This is consistent with a fundamental principle that occupations must be temporary in nature and no sovereignty passes to the occupying power. However, under articles 64 and 66 of the Fourth Geneva Convention, local laws may be suspended or revoked by an occupying power “where they constitute a threat to its security” and replaced with military law enforced in “properly constituted, non-political military courts.” Although the power to issue military orders is extensive it must never be used as a means to oppress the local population. Further, an occupying power is not permitted to extend its own civilian legal system over the occupied territory as this would amount to an exercise of sovereignty.

 

The Israeli military authorities have acknowledged that the Fourth Geneva Convention is the jurisdictional basis for establishing military courts in the West Bank.

 

The international human rights treaties to which Israel is a party also apply to all inhabitants in the West Bank. These treaties include the Convention on the Rights of the Child (CRC), the Covenant on Civil and Political Rights (CCPR), the Covenant on Economic, Social and Cultural Rights (CESCR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention against Torture (CAT). These treaties expand the legal protections available to the civilian population including regulating the circumstances in which a person may be deprived of his or her liberty, and ensuring that court proceedings are conducted in a fair and impartial manner. A fundamental principle underpinning these treaties is that no state is entitled to discriminate between those over whom it exercises penal jurisdiction on the basis of race or nationality.

 

After the West Bank, East Jerusalem and the Gaza Strip were occupied in June 1967, military law was imposed on the West Bank and the Gaza Strip. The situation in Jerusalem was different as Israeli authorities took immediate steps to exercise sovereignty over East Jerusalem, including applying its civilian legal system to that section of the city. In 1980, further steps to formalise this process of annexation were taken when the Knesset passed The Basic Law: Jerusalem, Capital of Israel, declaring the City to be the “complete and united” capital of Israel. The annexation of East Jerusalem by Israel is not recognised by the international community and its continued status as occupied territory has been confirmed by the UN Security Council and the International Court of Justice. However, in practical terms, residents of East Jerusalem are generally subject to Israeli civilian law and not military orders as are Palestinian residents of the West Bank.

 

The situation in the Gaza Strip is slightly more complicated. As in the West Bank, Palestinian residents in Gaza were subject to Israeli military law and prosecuted in military courts up until the “disengagement plan” in 2005. Under the plan Israeli settlements built in violation of Article 49 of the Fourth Geneva Convention were dismantled and Israeli forces were withdrawn. As part of this process military law was lifted and the Palestinian civilian population were again subject to their own laws and courts. However, the international consensus is that Gaza remains occupied as Israel maintains “effective control” over the airspace, sea and most border crossings. The consensus that Gaza remains occupied was confirmed by the UN Security Council in 2009 (UNSC 1860). Since 2005, residents of Gaza captured by Israeli forces are prosecuted under civilian security legislation, with similar provisions to military law.

 

A Palestinian legal system also operates in parts of the West Bank and Gaza Strip and has limited jurisdiction to deal with matters affecting Palestinians. This legal system has no jurisdiction whatsoever over any matter relating directly or indirectly to Israeli forces or settlers in the West Bank, or influence over how vital resources are used in most of the West Bank.