The Foundation for Constitutional Democracy


The Law vs. Aharon Barak

Filed under: Supreme Court/JudicialIsrael’s Sovereignty — eidelberg @ 9:13 am Edit This

The Law vs. Aharon Barak: A full-page advertisement with this title was published on October 22, 2004 in The Jerusalem Post, in Makor Rishon and in the International Edition of The Jerusalem Post.

According to international law Judea and Samaria are not “occupied territories”, as evidenced by several international agreements that have recognized the Jewish People’s right to possess and settle the land.

The primary international legal documents that assumed, either expressly or implicitly, that Judea and Samaria are Jewish territories, being an indivisible part of the Jewish National Home, are:

  1. The San Remo Resolution incorporating the Smuts Resolution and the Balfour Declaration;
  2. The Mandate for Palestine;
  3. The Franco-British Boundary Convention, separating Palestine (the Jewish National Home) from Syria and Lebanon;
  4. The Anglo-American Convention respecting the Mandate for Palestine.

None of our rights deriving from these international agreements has ever been legally annulled or superceded: they all remain in force today.

According to Israeli law Judea and Samaria belong to the Jewish People and are not “occupied territories”:

  1. The Area of Jurisdiction and Powers Ordinance which, in essence, requires the immediate application of Israeli law to any area of the Land of Israel under foreign occupation upon its being recovered by the IDF;
  2. Section 11B of the Law and Administration Ordinance whose fundamental premise is that all areas of the Land of Israel repossessed or liberated in the Six-Day War belong to the Jewish People and can be annexed to the State of Israel, at the discretion of the Government, by the issuance of a simple order;
  3. The Law of Return, which recognizes the right of Jews to return and settle anywhere in the Land of Israel, a right which existed before the establishment of the State, according to Prime Minister David Ben-Gurion. None of these Israeli laws has been annulled; all are still in force today.

But Aharon Barak ignores both Israeli law and international law in his judgment, saying that “since 1967, Israel has been holding the areas of Judea and Samaria under belligerent occupation” and are therefore, in effect, “occupied territories”.

Indeed, that was the conclusion of Israel’s most acclaimed jurist, Aharon Barak, President of the Supreme Court, in a judgment[1] dealing with the construction of Israel’s security fence in Judea and Samaria.

This judgment contradicts the above four international legal documents and three important constitutional laws of the State of Israel, which, taken together, constitute the legal foundation of the Jewish State.

The Barak judgment completely disregards and renders valueless the above legal documents and laws. It therefore has no sound basis in either international law or the constitutional law of Israel. Instead of citing and applying Jewish national rights emanating from these laws and cardinal documents to determine the legality of the security fence Israel is presently erecting to deter Arab terrorism, Justice Barak erroneously cites and applies the provisions of the Fourth Hague Convention and Regulations, as well as the Fourth Geneva Convention, which are inapplicable to the situation determined by the Israeli laws and the instruments of international law enumerated above.

It is a hallmark of everlasting shame that our own Supreme Court fails to recognize our legal rights and title of sovereignty over Judea and Samaria and believes these areas to be held under “belligerent occupation”. In his judgment, Justice Barak presents no definition of the term “occupation” and gives no reason why Judea and Samaria should be characterized under that term. He simply assumes that “occupation” is an undisputed “fact”. His judgment does not uphold the Rule of Law, as he so piously claims, but actually negates it. In addition, he places the interests of the local Arab farmers and landowners in Judea and Samaria above those of Israel’s national security and the lives of Israelis who have been wantonly murdered by Arab terrorists. Barak’s judgment thus aids and abets all of Israel’s enemies and all foreign leaders and bodies—particularly the United Nations and its judicial organ, the International Court of Justice—who maliciously and one-sidedly denounce Israel for occupying “Arab land” or, since 1988, “Palestinian territory”.

This shocking, illegal and exceedingly harmful judgment must not be allowed to stand! It must be overturned by appropriate Knesset legislation.

Howard Grief, Attorney
Baruch Koroth, Att.; Prof. Hillel Weiss, Att. Eliezer Dembitz, Att. Elon Jarden, Att.;
Michael Levi Matar, Att.; Herb Sunshine, Att.; Ephraim Ben-Haim, Amb. (ret.);
Esther Aboutboul, Land of Israel Activist
Yoel Lerner, Linguist

Office for Israeli Constitutional Law (Reg. Amuta), P.O. Box 28001, Jerusalem 91280,

[1] Concurred in by two associate justices, Eliahu Mazza and Mishael Cheshin, and handed down on June 30, 2004 in the case of Beit Sourik Village Council v. The Government of Israel [HCJ 2056/04].