The diminishing status of international law in the decisions of the Israeli Supreme Court concerning the Occupied Territories

Abstract

Abstract 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. It compares the decisions of the past decade to those of the preceding decade, which were characterized as developing a “jurisprudence inspired by international law.” The article argues that the status of international law in decisions that regard the Occupied Territories has, overall, declined. 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. As a result, the distinction between the Occupied Territories and Israel is blurred. The article argues that this shift is consistent with a deliberate eradication of the distinction between Israel and the Occupied Territories by the legislator and the government. While the article does not argue that the Court intentionally supports this eradication, it does argue that it facilitates it.