state of exception2 and adopted a logic of ‘alternative legality’ that sees the application of human rights
law valid only for its Jewish population, while Palestinians under Israeli control are kept under a regime of
curtailment.3 Israeli municipal law distinguishes between the notions of ‘citizenship’ and ‘nationality’; such
that ‘Jewish nationals’ of Israel receive preferred treatment over non-Jewish citizens. The treatment of non-
Jewish citizens further differs according to residence rights, which change frequently following settlement
expansion and military regulations. Existing literature on Palestinian people’s rights mostly focuses on land
dispossession and issues of refugees’ ability to return. In an effort to broaden the conversation, the author
of this article consciously focuses on anti-terrorism and security measures, which contribute to the creation
of what the International Court of Justice (ICJ) has defined as an ‘associated regime’ of occupation.
Palestinian people’s rights to life and freedom of the person are constantly under attack by means of retal-
iatory actions and counter-terrorism incursions, which often lead to targeted assassinations and administra-
tive detentions.4 These practices contravene Israel’s laws on the sanctity of life and freedom from arbitrary
searches. Likewise, the Israeli occupation’s barricades and checkpoints prevent the Palestinian population
from the enjoyment of the very same rights Israel protects for its Jewish population: the right to an edu-
cation; the right to health; the right to water and sanitation; the right to freedom of profession; the right
to dignity; and, most importantly, the right to the security of the person. Besides violating fundamental
rights enshrined in Israel’s municipal law, these violations contravene Israel’s international legal obliga-
tions. While admitting the applicability of humanitarian law to the territories under military occupation,
Israel’s position of exceptionalism denies that the Fourth Geneva Convention is applicable. Most impor-
tantly, Israel denies its responsibility under international human rights instruments in the territories under
occupation, advocating a separation of applicable legislation.5 After discussing the issue of human rights
protected under Israeli municipal law, the article deals with the applicability of international legal instru-
ments. Positing that both human rights and humanitarian law are applicable to the people and territories
under Israeli control, this article aims to expose the invalidity of Israel’s position concerning its domestic
and international legal obligation.
1. On the Application of Domestic Legislation to the Territory of the State of
1.1. Human Rights in Israel and the Basic Law on Human Dignity and Liberty
Israeli national law recognises the value of man, the sanctity of his life and individual freedom.6 The Basic
Law on Human Dignity and Liberty (Basic Law) is Israel’s domestic provision that protects human rights at
the highest level of legislation. The Knesset (the legislative branch of the Israeli government) gave it ‘super-
legal status’, giving Israeli courts the authority to disqualify any law contradicting it at any lower level.7
Among the rights protected there are the following: the right to life; the right to property; the right to pri-
vacy and intimacy; the freedom to leave and enter the country; and the freedom from arbitrary searches of
the person and private premises.8 Despite the fact that several cardinal human rights are missing from the
document (the right to equality, the freedom of speech, the freedom of religion and the freedom of protest,
to name a few), the Basic Law’s protection is interpreted as extending beyond its text. Some jurists, such as
former President of The Supreme Court of Israel Aharon Barak, see these rights as directly derived from the
right to dignity protected in the Basic Law under Sections 2 and 4 (respectively, ‘preservation’ and ‘protection
2 For a comprehensive discussion of Israel’s constant state of exception, see: Shaid M. Alam, Israeli Exceptionalism: The Destabilizing
Logic of Zionism (Palgrave Macmillan 2010). The author prefers the use of the expression ‘alternative legality’ to the more general
term ‘exceptionalism’ because she believes the expression translates more figuratively the arbitrary nature of Israel’s position con-
cerning the application of the legislative norms discussed herein.
3 UN General Assembly, Persons displaced as a result of the June 1967 and subsequent hostilities, UN Doc. A/RES/68/77, UNGA,
Palestine refugees’ properties and their revenues, UN Doc. A/RES/68/79, UNGA, Work of the Special Committee to Investigate Israeli
Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, UN Doc. A/RES/68/80,
and others (n 1).
4 Administrative detention is the arrest and detention of individuals by the state without trial, usually for security reasons. The legal
basis for Israel’s use of administrative detention is the British Mandate 1945 Law on Authority in States of Emergency as amended
in 1979, see: Amnesty International ‘Administrative Detention in Israel/Occupied Territories’ 32 Middle East Journal 3, 337.
5 From which the term ‘alternative legality’.
6 Basic Law: Human Dignity and Liberty 1948, Israel
Dignity_and_Liberty.html?MFAH00hi0>. Retrieved April 20, 2013; the full text of the law can be found on the Israeli Knesset’s
7 Basic Law: Human Dignity (n 6) sec 8, 12.
8 Ibid sec. 2-7.