Foreign affairs

From the time the State of Israel was established in 1948 up to the 21st century, Israeli
law had to deal with a plethora of challenges in terms of international law. First of all, there were
complex issues concerning the laws of war. The most common international law issues include
the legislative powers of the military governor, the extent of his power, and especially the power
to expropriate land in the Israeli-controlled zones and expel the local population from those
territories.
Furthermore, various international problems include the Israeli courts' jurisdiction
regarding offenses committed beyond Israel's boundaries or in the demilitarized territories; the
question of succeeding the obligations of the Mandatory government, the immunity of foreign
states and representatives of foreign states; the effects of international treaties and official acts
performed within the territory of a state being at war with Israel, the question whether the
Eastern part of Jerusalem is a part of Israel, the status of international organizations based in
Israel and also the status of their employees, numerous issues concerning extradition; etc.
Ordinary statutes of the Knesset and Israeli Basic Laws do not contain provisions
concerning the status of international law in the domestic system. Therefore, it is the job of the
courts (primarily the Supreme Court) to find a solution to this issue. As domestic legislative
provisions do not exist, the Supreme Court of Israel adopted the approach of the English legal
system. Three rules of international law in the English (and now Israeli) legal system are non-
incorporation of international treaties, enforcing international law, and the primacy of domestic
parliamentary legislation. That means that the Israeli statute will prevail in the case the Knesset
passes a law that contradicts an international norm (customary law or an obligation undertaken in
a treaty). However, international law is accepted and recognized just after independence, as all
modern nations should accept it as binding. Moreover, Israeli domestic courts Israel may not
enforce binding treaties in international law unless the treaty provisions have been incorporated
by Israeli parliamentary legislation.
The five methods of incorporation of international treaties in domestic laws include
adopting substantive provisions in special legislation, expressing application of convention,
reference to treaty obligations in a defined area, statutory reference to the treaty, and the
authorization to promulgate regulations.
The main principle of international law in Israeli interpretation is the presumption of
compatibility. In other words, Israeli courts have to interpret domestic legislation to avoid non-
compliance with Israel's international treaty obligations.
Ratified treaties are not automatically accepted into Israeli law. Treaty-making power
belongs to the Government, but as Israel is democratic, Government cannot have full legislative
power without the participation of the Parliament. In order to have a full and direct effect in
Israeli law, it is required that treaties have to be implemented in domestic law by primary
legislation or secondary legislation if such implementation had been authorized by primary
legislation.
Customary international law is always incorporated automatically into Israeli law, and
domestic courts apply the codified customary rules.
In recent years, Israeli courts attach higher importance to international norms that
concern corruption, organized crime, money laundering, and trafficking of women, along with
international laws that protect minority rights and basic human rights.
Bibliography
David Kretzmer - The Role of Domestic Courts in Treaty Enforcement: A Comparative Study
(2008)
Talia Einhorn - International law and the Israeli legal system (2010)
Eyal Benvenisti, 'The Applicability of Human Rights Conventions to Israel and to the Occupied
Territories' [1992] 26(1) Israel Law Review