Summary
The Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, which in the Beit Sourik case the Court treats as reflecting customary international law and as the principal source of the military commander’s authority in an area held in belligerent occupation (Beit Sourik Village Council v. Government of Israel, lines 410-424).
Details
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Article 52 is the provision under which Duikat held that the army’s needs cannot include national security needs in the broad meaning of the term, so Zionist settlement ideology does not justify taking an individual’s property (paragraph 27).
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Articles 23(g) and 52, with Article 53 of the Fourth Geneva Convention, authorize the commander to take possession of land necessitated by military needs, with compensation for its use (paragraph 32).
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Regulation 43’s obligation, as stated in HCJ 2977/91 Thaj, at 474, is to preserve the local population’s order and public life while properly balancing its interests against military and security needs (paragraph 34).
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Regulation 46 is named in the judgment’s abstract (not part of the opinion), with Article 27 of the Fourth Geneva Convention, as imposing the duty to avoid harming local residents and to balance security needs against their needs (lines 89-101).
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Barak in Jam’iyat Ascan, at 794, quoted in the judgment: “The Hague Regulations revolve around two central axes: one – the ensuring of the legitimate security interests of the holder of a territory held in belligerent occupation; the other – the ensuring of the needs of the local population in the territory held in belligerent occupation.” (paragraph 34).
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In the Court’s 9 July 2004 Advisory Opinion (part 1), Israel not being a party to the Fourth Hague Convention of 1907, the Court follows the Nuremberg Tribunal in holding the Regulations “declaratory of the laws and customs of war” and part of customary law, as all participants recognized; the Fourth Geneva Convention is supplementary to Sections II and III of the Regulations under its Article 154, Section III being particularly pertinent, and Article 42 supplies the customary definition of occupation on which the Opinion’s finding of occupied status rests (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, PDF p.25-27, p.30-31).
Related pages
Beit Sourik Village Council v. Government of Israel, Fourth Geneva Convention, Beit Sourik case, Proportionality