The judicial system in occupied territories

Abstract

The double-tiered system of courts 308. The civilian population of an occupied territory is subject to a judicial system comprising two different layers: local courts (existing on the brink of the occupation) and military courts (established by the Occupying Power). Local courts 309. Local courts in an occupied territory – predating the occupation – continue to have jurisdiction over civil and criminal cases emanating from the domestic laws. An express reference to the ‘tribunals of the occupied territory’, carrying on with their functions in penal matters, appears in Article 64 (first paragraph) of Geneva Convention (IV) (quoted supra 257). No doubt, an uninterrupted judicial functioning is also to be expected in civil affairs. When the existing (penal or civil) laws are amended by the Occupying Power – in accordance with Article 64 and Hague Regulation 43 (quoted supra 202) – the local courts hardly have any choice but to apply the modified version. Experience demonstrates that local courts under occupation ‘have been reluctant to inquire whether legislative measures which prima facie could be intended to safeguard public order, and thus to satisfy the requirements of Article 43 of the Hague Regulations, were in fact necessary’. Interestingly, the Ramallah Court of Appeal for the West Bank held, in the 1968 Al-Ja'bari case, that (i) generally speaking, the local courts in an occupied territory ‘are not competent to consider whether or not an imperative need exists that requires additional or amending legislation’ by the Occupying Power as per Hague Regulation 43; but (ii) in the specific instance of a concerted decision by advocates in the West Bank to deny their professional services to local inhabitants (see infra 314), the Occupying Power was certainly right to issue an Order (a legislative enactment) granting Israeli advocates the right to appear before the local courts.