In the shadow of settlement – the Israeli Progressive Scholars’ critical analyses of the decision-making policies of the Israeli Supreme Court sitting as the High Court of Justice

Abstract

This article, drawing heavily on Kretzmer’s and Ronen’s newly edited and expanded book, analyses the approaches of the Israeli Supreme Court (SC) to petitions relating to the occupied Palestinian territories. Its purpose is to examine how the SC’s judicial policies can be considered to cohere with the demands of international humanitarian law (IHL) of occupation and those of international human rights law (IHRL). After dwelling on some interpretive issues relating to Article 43 of the Hague Regulations, this article classifies three salient patterns of the SC’s judicial policies: (1) the SC’s approach of applying very controversial interpretations in some areas; (2) its judicial policy based on the mixture of restrictive interpretations and some liberal tendencies in other areas; and (3) its willingness to develop in yet other areas some pioneeringly progressive jurisprudence, which can provide lessons even for the monitoring bodies of IHRL. This article shows that as with Kretzmer and Ronen, the SC’s controversially deferential stance tends to be discernible whenever issues touch on the right-wing Israeli government’s policies of settlement in the occupied Palestinian territories and on the rights of Israeli settlers in those territories. These issues provide the invisible barriers to any progressive potentials of the SC’s judicial policies.