Conceptualización de las relaciones de consumo

Different types of primary sources were exhausted for this research, most notably in the form of decisions generated by the HCJ and interviews conducted with lawyers who have petitioned the Court on behalf of the Palestinians. Other primary sources include Israeli legislation, international treaties, conventions and international or regional judicial decisions.

4.1.1. HCJ Judgments

In terms of relevant case law, the focus was on judgments that were rendered from 2000 to 2014, concerning petitions which raised issues related to Israeli settlements, settlers and their legal status. Given that the researcher does not have a command of written or spoken Hebrew, an Israeli research assistant was identified to assist with this project.305 His help proved crucial in identifying relevant judgments from the HCJ’s website in Hebrew,306 and from Hebrew- based legal databases to which he had access.307

The search by the team generated a database of an estimated 110 HCJ judgments.308 While most of them were post-2000 (year), a number of them were landmark decisions dating from

305 _{Avichay Sharon.}

306 _{The HCJ database, while providing for all HCJ cases from recent years in Hebrew, also provides case-law} that have been translated into English. However, for the moment, only few decisions have been translated. Therefore, the researcher has relied for the most part on the Hebrew website and database.

307 _{Nevo database, a private Israeli company, is the most common legal database used by jurists in Israel, and} therefore is provided for only in Hebrew, online: Nevo <http://www.nevo.co.il/> (only in Hebrew).

308 _{In searching for the relevant cases, where the number of the case was lacking, the abovementioned sources} and databases were searched using key words such as: settlement; military commander; occupation; belligerent occupation; Palestinian; settler; land confiscation; security; planning; civil administration; outpost; international law; separation wall etc. At times, key words were used in different combinations and at other times separately.

the 1970s and the 1980s.309 Since the focus is on the ability of the Court to provide a venue for effective remedy to the Palestinians, the judgments where the sole plaintiffs were Israeli citizens were excluded.310 _{When identifying case laws related to EJ, different keywords were} used. This is the case since Israel considers it part of its sovereign territory (after its de jure annexation in the 1980s).311

The identified cases were then classified under one of three categories, namely (1) West Bank settlements (2) EJ Settlements and (3) ‘unauthorized outposts’. In this regard, two comments are warranted. The first relates to HCJ judgments rendered in relation to settlements that had existed in the Gaza Strip. While the former is not part of the geographic focus of this research, judgments by the HCJ dealing with issues of Israeli settlements up and till (and including) Israel’s disengagement from Gaza in 2005 were referenced to occasionally in the analysis, if it clarifies the Court’s interpretation of important principles of international law and of Israeli constitutional law as invoked by the Court in relation to the petitions examined in this research. However, the HCJ Gaza Strip related decisions were not formally included as part of the total number of judgments rendered after 2000 that were analyzed in the Chapters I-III of this research.

The second comment relates to the ‘unauthorized outposts’. Although one of the initial objectives of this research was also to analyze the HCJ’s interpretation of petitions challenging the legality of the construction of these outposts, it was subsequently determined that these judgments should not be included. The primary reason for this decision is that the HCJ judgments make no reference to international law.312

309 _{This was deemed necessary because they provide insight into the position that the Court has traditionally} adopted on important principles and aspects of international law. These cases have been identified primarily from academic articles on Israeli settlements by Israeli and International scholars.

310 _{Israeli petitioners included often settler organizations and in some cases settlement regional councils. Where} the Court decided to render a judgment regarding a number of petitions that were filed by Palestinians and Israelis (that the Court grouped together) and where they proved pertinent in addressing the legality of security-based measures, these decisions were also analyzed.

311 _{Thus, in addition to key word such as ‘East Jerusalem’, other key words used were: wall; fence; separation} barrier; names of specific Jerusalem neighborhoods, as well as the word Otef Yerushalaim.

312 _{Only a few of the landmark decisions were analyzed to underscore a trend by the Court to uphold domestic} RoL requirements. These have been discussed in the Chapter: General Conclusion.

From the identified case law, a total of 40 decisions were analyzed. This took place after the HCJ decisions, available in Hebrew only, were translated into English by the research assistant. Since many of the judgments were translated first hand, it was decided to include a detailed description of the facts of the cases (as they appeared in the judgments) in the footnotes. The objective is to provide the reader with information that is not readily available to a non-Hebrew reader. It is hoped that this provides a better overview of the context of the petition; the impact of the alleged security measures on the affected Palestinian individuals and communities and the Court’s position in relation to the narrative of the petitioners and the respondents. The judgments were then analyzed, as they pertain to the three normative principles of the law for belligerent occupation that were stated earlier.

In the case of the first normative principle (that occupation is temporary), the analysis included all the HCJ judgments that were rendered in relation to petitions that have challenged the legality of the construction of the Wall in the ‘West Bank’ (i.e. West Bank excluding EJ)., the creation of the Seam Zone and imposition of a permit regime therein, as well as the establishment of SSZs around settlements. In the case of the second normative principle (that occupation is a form of ‘trust’), all judgments relating to petitions that challenged the legality of imposing movement restrictions on Palestinians in response to alleged security concerns for Israeli citizens and primarily settlers were grouped together. Finally, in regards to the third normative principle (that occupation does not bestow sovereignty) all HCJ judgments that were identified in relation to petitions challenging the legality of the Wall in and around the Jerusalem area were grouped together.

The next section provides an overview of another source which served as a very important resource for corroborating the analysis of the HCJ judgments: Interviews.

4.1.2. Interviews

To compliment the analysis with information from the field, the researcher carried out interviews with a number of Israeli lawyers (both Jewish Israelis and Palestinian citizens of Israel) who regularly petition the HCJ on behalf of Palestinians to challenge the legality of

measures by Israeli military authorities.313 The decision to conduct these interviews stems from a belief that international human rights norms are enforced “not just by nation states [...], but by people like us, by people with the courage and commitment to bring the international human rights law home.”314

Another element spearheading the decision to interview these lawyers is the desire to take advantage of the knowledge and experience that they have accumulated as ‘repeat players’. In particular, the purpose of the fieldwork is to conduct an in depth interview and thus gain qualitative data from the perspective of a sample of interviewees. The objective is to complement the research on two levels: descriptive315 and evaluative.316 The interviews largely focused on their analysis and feedback regarding the HCJ’s interpretation of principles and rules of IHL and of IHR law in settlement related petitions (several of which they have been involved in) and its impact on the normative framework of the law of belligerent occupation. Another question put to them is whether there is any added value for Palestinians to continue petitioning the Court. Although this did not represent a main element of focus for the research, it is a relevant element since there is a lot of discussion as to whether doing so

313 _{Lawyers appearing before the Court are required to be member of the Israeli Bar Association. The proceedings} are only conducted in Hebrew. This has prevented Palestinian lawyers from the oPt (except for Palestinian East Jerusalemites by virtue of their ‘Israeli’ permanent residency) from representing clients. See George Bisharat “Courting Justice?” supra note 83. See also Hassan Jabareen, “Transnational Lawyers and Legal Resistance in National Courts: Palestinian Cases before the Israeli Supreme Court” (2010) 13 Yale Hum Rts and Dev L J 239.

314 _{Harold Koh, “How is International Human Rights Law Enforced?,” supra note 156 at 1417.}

315 _{On the descriptive level, the interviews sought to corroborate the accuracy of information related to} legislation, policies, and measures taken in relation to the settlements and their associated policies.

316 _{On the evaluative level, the interviews solicited feedback regarding the impact of petitioning the HCJ for the} three normative pillars underlying the law of belligerent occupation. Their views provided valuable analysis regarding the Court’s interpretation of principles of international law as well as Israeli constitutional and administrative law. Interviewees were also asked regarding the possible impact that the HCJ’s judgments could have on the Court’s domestic and international standing and the legal qualification of the Israeli occupation of the West Bank. Other questions related to the impact that settlement /settler related security- based measures have for these normative principles and the advantages and disadvantages of continuing to petition the HCJ on behalf of the Palestinians.

legitimizes the occupation.317 The research was conducted after the necessary approval of the Research Ethics Committee at the Université de Montreal had been obtained.318

Out of 37 lawyers that were contacted by email or phone, six (6) lawyers agreed to be interviewed, or to give a written response.319 Given the practical difficulties of obtaining an Israeli authorized permit for the researcher to enter Israel proper and/or EJ, the interviews were conducted by the research assistant during his stay in Israel during the summer of 2014.320 In addition, two Palestinian legal experts residing in Ramallah (West Bank) were also interviewed. Similarly, two Israeli human rights activists provided answers to a list of questions that were sent by email.321 An effort was also made to solicit written feedback or an interview from representatives of the Israeli Attorney’s Office (the Ministry of Justice), which proved difficult. It was also not possible to receive feedback regarding a questionnaire that was forwarded to the Public Relations Office of the HCJ. The writer also tried to contact the former Presiding Justice of the HCJ, Professor Aharon Barak, but received no response.

4.1.3. Other Primary Resources

These included translated Israeli legislations (particularly the Basic Law: Human Dignity and

Liberty) as well as international conventions and treaties related to the applicability of the law

of occupation (primarily in the form of the Fourth Geneva Convention and the Hague

Regulations). Likewise, IHL and IHR treaties and conventions, to which Israel is a State Party

or which reflect customary international law, were also used. Other sources, such as UN GA and SC resolutions, reports and general comments by the UN treaty and non-treaty bodies,

317 _{There has been an extensive debate amongst the lawyering and scholarly community regarding the tension} between concrete individual interest and long-term communal objectives. George Bisharat “Courting Justice?” supra note 83. See also Hassan Jabareen, “Transnational Lawyers and Legal Resistance,” supra note 313.

318 _{See Annex IV: Ethics Certificate.}

319 _{For a list of the names of lawyers interviewed, see “Interviews and Written Responses” included at the end of} this research. Their contact details can be gathered from the website of the Israeli Bar Association, online: < http://www.israelbar.org.il/english.asp?catid=372>.

320 _{The writer has a West Bank Palestinian ID. The interviews were conducted by Avichay Sharon based on a set} of detailed questions that were provided by the researcher.

judicial decisions and advisory opinions of the ICJ, and judgments of regional human rights courts have also been referenced.