On Law During Beliigerent Occupation

Israel's High Court for Justice handed down its decision on April 5, 1983 in the matter of HCJ 69/81 Aita v. Regional Commander of Judea and Samaria.

Arab petitioners who carried on various businesses in their respective regions challenged the validity of enactments imposing excise duty on local manufacturers in Judea and Samaria and on goods and services in the Gaza Strip, along with maintaining accounting procedures. These had been levied following the introduction of Value Added Tax in Israel.

Their main submissions were (a) since the Regions where the Petitioners live and work were occupied territory. Article 43 of the Hague Regulations required the Regional Commander to respect existing law unless the circumstances rendered it absolutely impossible. Such circumstances did not obtain in the Regions; (b) under the said Article, all enactments not designed to promote public order and safety were forbidden, whatever the purposes thereof; (c) Article 48 permits the Military Government only to adapt the collection of taxes to existing law and therefore does not give it power to enact new legislation even if it is for the benefit of the Region and its local population.

In the end, the High Court for Justice ruled:

A. (1) The basic norm on which the structure of the Israeli government in Judea, Samaria and the Gaza Strip is built, is the norm of military government.

  (2) The authority of such government is temporary and it shall continue in power as long as it is effective.

  (3) On assuming authority and as long as it continues, the military government occupies the place of the central government and its local authorities that ruled in the region, and concentrates in its hands every power, right and duty of such central government under the existing law in the Region, subject to such changes as the establishment of the military itself involves and the restrictions imposed by the laws of war.

  (4)  The authority of the military government is not limited to implementing the local law. It may translate its powers and directives in terms of security enactments subject, however, to the rules of the laws of war.

...C. (1) The acts of the occupying power derive their force and validity from customary international law which is embodied in international conventions and partly remains in the form of common law as reflected in the judgments of international or national judicial tribunals, in the practice of nations and in legal literature.

  (2) The latter is not merely interpretative of the international conventions which codify customary rules, it may also serve as an independent source evidencing general practice accepted as law.

  (3) When the High Court examines the question of the law as to whether there has been an act of omission or commission conflicting with public international law, it must differentiate between customary and conventional international law, and make a distinction between the two.

  (4) Customary international law is automatically incorporated into Israeli law, and becomes part of it except when it is in direct conflict with enacted Israeli law, in which case, Israeli law takes precedence.

  (5) Conventional international law does not become part of Israeli law through automatic incorporation, but only if it is adopted or combined with Israeli law by enactment of primary or subsidiary legislation from which it derives its force.

  (6) The legal principles embraced by the Supreme Court on subjects arising in the occupied territories are those of customary international law which gives force also to the local courts in the occupied territories according to Article 43 of the Hague Regulations, adopted in the security legislation.

...E. (1) The Addendum to the Fourth Geneva Convention of 1907 (Hague Regulations) expresses customary international law in the framework of the laws of war.

  (2) The convention contains no express prohibition on the imposition of taxes by an occupying power. The ramifications arising from Article 48 of the Addendum to the Convention should not be examined according to the narrow limits resulting from the wording of the article - which does not enable reaching definite conclusions regarding the permissible limits of taxation. But the subject should be examined in light of the quality of the military regime and its obligations, and in light of the responsibilities towards the areas which it controls.

  (3) Article 49 opens the door to the imposition of additional payment on the populace: there are no restrictions on the frequency of the levy; no restrictions on the reasons for its imposition, the manner of its collection, its scope, the individual rates that shall be determined, or resulting associated features; but there is a restriction regarding the purpose of the levy, and other restrictions lacking real significance according to Article 51.

  (4) Articles 48 and 49 of the Hague Regulations have the sole purpose of limiting the scope of responses in the event that either of two situations arises: One, the collection of taxes by the military regime that are intended for the needs of the State, and two, the imposition of forced levies. Should either of these two actions take place, the military regime will be restricted in regards to methods of implementation and disposition of income, as detailed in the Hague Regulations.

  (5) Regarding the implementation of the payment to be made: The amount of the debt shall be determined according to the normal rules of assessment (how much to be collected) (from whom to collect). The debit is not rigidly fixed, but is flexible to no small degree and can be fixed according to existing conditions. In this matter there is no logic in applying the same criterion to a recently established military government and to a military government that has been in charge of an area with all its attendant civilian problems for more than ten years.

  (6) A forced levy by the military is clearly a means of compulsion expressed by a forced collection of cash meant to flow directly to army coffers, with no relationship or resemblance to taxes for civilian purposes.

F. (1) The military regime does not have the right to impose taxes on the inhabitants of the occupied territories and divert those taxes to the treasury of the state in whose name it acts.

  ...(4) There is no basis to the argument that a general rule of customary international law has developed, forbidding totally and absolutely and for any reason whatsoever, all military legislative enactments imposing new taxes. On the other hand, there is no reason to conclude that the matter of new taxes is left to the sole discretion of the military regime. [p. 203].


JUSTICES
Shamgar, Meir Primary Author majority opinion
Bejski, Moshe majority opinion
Shilo, Yitzhak

Put The Violators on Trial

These people, among others, (and in this short video), are guilty of violating the Law for the Protection of the Holy Places

2.   (b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years.

They should be detained, interrogated and if a solid basis of evidence exists, they should be tried.

They interfered this morning with the free access of non-Muslims touring the Temple Mount necessitating the exit of those visitors through the Chain Gate without a full encircling of the compound due to a police collapse of security in the face of violent threatening behavior.


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Financial and/or Criminal Liability

Since it has been proven that released terrorists have not only encouraged others to engage in the fine Palestinian art of murdering Jews but that a percentage of those released themselves have reengaged in terror, how does one go about achieving punitive financial redress and how does one pursue a judicial suit of a criminal nature against the 13 ministers who decided to release them as well as against any and all government employees who too act so that these prisoners are released on the basis that a claim of "I was just following orders" cannot apply, if, God forbid, Jews are injured or worse?

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Negbi Should Know Better

Moshe Negbi is the IBA's official legal commentator.

Supposedly, that makes him a neutral observer.

Wrong.

Here he is in this morning's Haaretz on the Rabin assassination:

Rabin's murderers are still free and happy

Yigal Amir is in jail but his senior partners to the murder of the prime minister are still free and happy. Amir himself testified about those partners already on the night of the assassination when he said in his investigation: "Without the rabbinical ruling or the 'din rodef' [the right to pursue and kill someone who has supposedly sinned] that applied to [Prime Minister Yitzhak] Rabin, issued by a number of rabbis that I know about, I would have had difficulty murdering. A murder of that kind must have backing. If I did not have backing ... I would not have acted."

The criminal code stipulates that someone who urges another to perform a criminal act "by persuasion, encouragement or demand" bears the same criminal responsibility as that of the criminal he pressured. That is to say, the rabbis who issued the "din rodef" about the prime minister, and in that way gave backing to Amir, are assassins just like him, and they were supposed to spend the rest of their lives in prison like him. However they have remained free and obviously are also happy. From their point of view, the murder of the prime minister was a perfect crime that paid - it achieved its aim and they did not have to pay any price for it.

Of course, Negbi does not know who those Rabbis are.  He has no name, no evidence, no proof.

A special investigation headed by then Attn'y-General Elyakim Rubenstein arrived at the conclusion that despite some Rabbis being questioned, there was no proof of any Rabbi of any sort who had incited, instigate or otherwise acted criminally.

Negbi knows this.

Steve Plaut wrote it and has not been proven wrong:

...speakers and TV stations repeat over and over and over the lies that Rabin's death was caused by right-wing "inciters", that rabbis supposedly gave the okay to Amir to kill Rabin (except no one has ever managed to name or locate any such Rabbi)...As you know, the Israeli leftist media fabricated an urban legend about how un-named Rabbis supposedly told Yigal Amir it would be nice if he murdered Rabin and who allegedly otherwise endorsed violence. Never mind that no one has ever produced any evidence of any Rabbi endorsing murder of Rabin or of anyone else

.

But he also claims to know that

The only convincing explanation for the failure to trial these Rabbis he "heard came from Rabbi Yoel Bin-Nun, the first to denounce the rabbis who permitted the shedding of Rabin's blood. When the rabbi was asked why he did not go to the police with the names of those rabbis rather than to the Chief Rabbinate, he said he had learned that the law-enforcement authorities were afraid of dealing with them and their extremist followers.

He never gave names.  Ever.  Sixteen years later and nada.  But Negbi "knows" and besmirches and pillories.

Maybe Negbi would wish that Bin-Nun be tried for interefering with an investigation?

Or maybe he should stop peddling pernicious fantasies?

After all, he is a lawyer and should know better.


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Is This Why the Flotilla Activists Are Depressed?

From a US State Department release:

...We underscore that delivering or attempting or conspiring to deliver material support or other resources to or for the benefit of a designated foreign terrorist organization, such as Hamas, could violate U.S. civil and criminal statutes and could lead to fines and incarceration.

That was from a Press Statement of Victoria Nuland, Department Spokesperson, Office of the Spokesperson, Washington, DC
June 24, 2011

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Egged Warns You: Sit Where You Want And Don't Harass

To understand this sticker I photographed this morning:

You need to read this news item:

The High Court of Justice on Thursday officially abolished the so-called “mehadrin” public buses operated by the Egged bus company, but it is far from clear that the ruling will put an end to the gender separation arrangement in which female passengers are frequently forced to sit at the back of the bus. According to Justice Elyakim Rubinstein, “There is a common understanding today that the operation of the buses as they were run until 2007 is forbidden. This is the current opinion of the Transportation Minister and, as the regulatory body, that is what he will instruct the public bus companies. For those who are not clear on this, we will say that a public transportation operator (like anyone else) may not tell, request or order women to sit in a specific place on the bus just because they are women, or to tell them how to dress, and they are entitled to sit anywhere they wish.”

The sticker translates:

Every passenger is entitled to sit anywhere he chooses (except for those places limited to persons with disabilities).  Harassing a passenger in this matter could be a criminal offense.

 
So sit down and be quiet.  Or just keep standing.
 
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Evelyn is So Good

Civil Fights: The Third World according to Aharon Barak

It is only January, but former Supreme Court president Aharon Barak already has the chutzpah prize for 2008 sewn up. From anyone else, his statements to Israel Radio on Sunday could have been dismissed as ignorance. But for Barak to declare that Justice Minister Daniel Friedmann's proposed reforms "could turn Israel into a third-world country" is the height of chutzpah - because the former chief justice is sufficiently familiar with other legal systems to know that in fact, Friedmann's proposals would finally bring Israel into line with first-world norms.

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America, Germany, France, Austria, Switzerland, Australia, Canada, Belgium, Sweden, Norway and Japan are hardly third-world countries. So how exactly would making Israel's judicial appointment system more like theirs reduce Israel from first-world to third-world status? Fortunately for Barak, his interviewer neglected to ask.