1 On this subject, see Partsch, K. J., “International Law and Municipal Law” in Bernhardt, R., ed., Encyclopedia of Public International Law (North-Holland, Amsterdam, 1987) vol. 10, pp. 238–257Google Scholar; Rosenne, S., “International Law and the Municipal Law of the State of Israel” (1950) 7 HaPraklit 258–267Google Scholar; Dinstein, Y., International Law and the State(Schocken, Tel Aviv, 1971, in Hebrew) 128–148Google Scholar; Rubin, B., “The Adoption of International Treaties into Israel Law by the Courts” (1983) 13 Mishpatim 210Google Scholar; Lapidoth, R.(Eschelbacher), Les Rapports entre le droit international public et le droit interne en Israel(Pedone, Paris, 1959)Google Scholar.

2 Laws and Practices Concerning the Conclusion of Treaties, United Nations Legislative Series, 1953 (ST/LEG/SER.B/3, December, 1952); Blix, H.and Emerson, J. H., The Treaty Maker's Handbook(Oceana, Dobbs Ferry, 1973) 1–29Google Scholar; Blum, Y.Z., “The Ratification of Treaties in Israel” (1967) 2 Is.L.R. 120Google Scholar; Lapidoth, R.(Eschelbacher), La Conclusion des traités internationaux en Israël(Pedone, Paris, 1962)Google Scholar; Golan, H., “Israel's Experience with Legislative-Executive Relations in the Field of Foreign Relations”, in Sondhi, M. L., ed., Foreign Policy and Legislatures - An Analysis of Seven Parliaments(Abhinav, New Delhi, 1988) 75-94, at 86–91Google Scholar; Dinstein, Y., International Treaties(Schocken, Tel Aviv, 1974, in Hebrew) 30–32Google Scholar; Lapidoth, R.(Eschelbacher) “The Treaty-Making Power in Israel”, in Feinberg, N., ed., Studies in Public International Law in Memory of Sir Hersch Lauterpacht(Magnes Press, Jerusalem, 1962, in Hebrew) 210–257Google Scholar; Lapidoth, R., “On the Validity of the Extradition Treaty between Israel and Switzerland” (1966/1967) 22 HaPraklit 328–346Google Scholar; Rubinstein, A., Constitutional Law in the State of Israel(Schocken, Tel Aviv, 3rded., 1980, in Hebrew) 369–372Google Scholar; Shetreet, S., “The Role of the Knesset in Treaty-Making” (1985) 36 HaPraklit 349–389Google Scholar; “Symposium on Parliamentary Involvement in the Conclusion of International Treaties and Agreements” (14 May, 1978), The Yisrael Yeshayahu Volume, The Israel Association for Parliamentary Problems (Jerusalem, 1982, in Hebrew) 11–40Google Scholar.

3 (1951) 9 P.E. 14.

4 Shtampfer v. Attorney General (1956) 10 P.D. 5, at 14-15.

5 Y. Dinstein, International Law and the State, supra n. 1, at 44.

6 Supra n. 3, at 20.

7 (1983) 37(ii) P.D. 197, at 238-239; 7 S.J. 1.

8 Ibid., at 241.

9 Ibid., at 242; and see Affu et al. v. Commander of I.D.F. Forces in the West Bank et al. (1988) 42(ii) P.D. 4, at 48; for an English translation, see (1990) 29 International Legal Materials 139.

10 (1973) 27(ii) P.D. 169, at 177. See also Amsterdam et al. v. Minister of Finance et al. (1952) 6 P.D. 945, at 966; Steinberg v. Attorney General (1951) 5 P.D. 1061, at 1065-1066; Eichmann v. Attorney General (1962) 16 P.D. 2033, at 2040.

11 (1964) 18 P.D. 598.

12 This rule was reversed in Boronowski v. Chief Rabbis (1971) 25(i) P.D. 7.

13 (1951) 5 P.D. 1061.

14 3 L.S.I. 112.

15 (1962) 16 P.D. 5.

16 4 L.S.I. 154.

17 (1967) 21(ii) P.D. 325.

18 See, e.g., Morgenstern, F., “Judicial Practice and the Supremacy of International Law” (1950) 27 Br. Y.B. Int'l L.42-92, at 70–71Google Scholar; Mosler, H., “L'application du droit international public par les tribunaux nationaux” (1957 -1) 91 Recueil des Cours de l'Académie de Droit International619-709, at 695–69Google Scholar; sec. 56. In the light of several comments made as obiter dicta in British judgments, there is justification for the view that in the case of a contradiction between international custom and a regulation or subsidiary legislation, municipal law will not necessarily prevail, the reason being that there is a presumption that Parliament did not authorize the subsidiary legislator to adopt enactments which contradict international law: see Morgenstern, op. cit., at 70, n. 5, and see Croft v. Dunphy [1933] A.C. 156-167, at 164; Molvan v. A. G.[1948] A.C. 351-371.

19 Feinberg, N., “Declaratory and Constitutive Treaties in International Law” (1967/1968) 24 HaPraklit 433Google Scholar; B. Rubin, supra n. 1, at 221-223; Rosenne, S., “A Communication to the Editor” (1980) 15 Is.L.R. 463–466CrossRefGoogle Scholar.

20 1 Pesakim 513. For additional examples of reliance on the provisions of this treaty, see: Aa'reib v. Appeals Tribunal (1986) 40(ii) P.D. 57; Al Nawar v. Minister of Defence et al. (1985) 39(iii) P.D. 449.

21 (1956) 10 P.D. 1825, at 1829.

22 See, e.g., Reitzok v. Attorney General (1959) 13 P.D. 859; Maccabi v. State of Israel (1977) 31(i) P.D. 770; Abu Aita et al. v. Commander of the Judea and Samaria Region et al., supra n. 7; Affu et al. v. Commander of the I.D.F. Forces in the West Bank, supra n. 9, at 36, and the many references cited there; Sejdiah et al. v. Minister of Defence (1988) 42(iii) P.D. 801 (the Ketsi'ot case).

23 Sejdiah v. Minister of Defence, supra n. 22, at 811, 814, 815-816.

24 On the situation in Britain, see: Shaw, M., International Law(Grotius Publications, Cambridge, 2nded., 1986) 108–111Google Scholar; McNair, A.D., The Law of Treaties(1961) 81–97Google Scholar; Mann, F.A., “The Enforcement of Treaties by English Courts” in Transactions of the Grotius Society(1958–1959) 29Google Scholar; B. Rubin, supra n. 1, at 212-214. On the situation in France, see Rousseau, Ch., Droit international Public(Sirey, Paris, 1970) vol. 1, pp. 172–179Google Scholar. On the situation in the U.S.A., see Restatement (Third) of the Foreign Relations Law of the United States(1987) vol. II, pp. 40–69Google Scholar.

25 See Y. Dinstein, International Law and the State, supra n. 1, at 141-3; R. Lapidoth, Les Rapports …, supra n. 1, at 83-94.

26 Supra n. 7, at 234.

27 The Crime of Genocide (Prevention and Punishment) Law, 1950 (4 L.S.I. 101). The Convention was published in K.A. vol. 5, p. 66. See in particular sec. 10 of the Law which states explicitly that this law follows in the wake of the Convention. See also H.H. no. 27, p. 37.

28 Carriage by Air Law, 1962 (16 L.S.I. 75). The Convention was published in K.A. 244, vol. 8, p. 479, and an amending protocol (of 1955) was published in K.A. 244, vol. 8, p. 523. See also H.H. no. 492, p. 78. Many of the labour laws in Israel have their source in an international labour convention, see Ben-Israel, R., Labour Law in Israel(Open University, 1989) 46Google Scholar.

29 Arrangement de Madrid Concernant la Répression des Fausses Indications de Provenance sur les Marchandises of 1891, as amended in 1911, 1925 and 1934, to which Israel acceded in 1949 and which entered into force for Israel in 1950: K.A. 37, vol. 2, p. 63.

30 See H.H. no. 318, p. 341.

31 12 L.S.I. 174.

32 Divrei HaKnesset 24, 2217Google Scholar.

33 Post Office Ordinance [New Version], 1976 (3 L.S.I. [N.V.] 48). The Ordinance was replaced in 1986 by the Postal Authority Law, 1986 (S.H. no. 1169, p. 79). The relevant provisions in the new Law, secs. 82 and 83, relate to the universal postal convention currently in force and in respect of which a notice has been published in Reshumot.

34 (1987) 41(ii) P.D. 309, at 319. The Post Office Ordinance [New Version], 1976 applied to the facts under discussion in this case, and not the Law of 1986, which expressly requires publication in Reshumot, as explained in n. 33 above.

35 1 L.S.I. [N.V.] 5.

36 8 L.S.I. 144. See secs. 12 and 21.

37 Goldstein v. State of Israel (1985) 39(iii) P.D. 281.

38 (1987) 41(ii) P.D. 42, at 46. See also (1989) 23 Is.L.R. 506Google Scholar.

39 37 L.S.I. 144.

40 36 L.S.I. 25.

41 See Immunities and Rights (The Multinational Force) Order, 1983, K.T. no. 4455, p. 683.

42 Sec. 6 of the Copyright Ordinance (Amendment) Law, 1953 (7 L.S.I. 30).

43 And with the consent of the Minister in charge of the implementation of another enactment, even in deviation from that enactment: National Insurance Law [Consolidated Version] 1968, sec. 190 (22 L.S.I. 114; 23 L.S.I. 221; 27 L.S.I. 128).

44 Income Tax Ordinance [New Version], sec. 196 (1 L.S.I. [N.V.] 145). See also sec. 10 of the Military Justice Law, 1955 (9 L.S.I. 184).

45 38 L.S.I. 271.

46 See, e.g., Eichmann v. Attorney General, supra n. 15, at 2033. It is possible that the Justices saw in these documents the proof for the existence of an international custom.

47 (1987) 41(i) P.D. 589.

48 See supra n. 28.

49 Prescription Law, 1958 (12 L.S.I. 129).

50 The quotations from the majority opinion are taken from pages 623, 625, 630-631, and those from the minority opinion, from p. 612. In this context, one should also refer to Hakshtater v. State of Israel (1972) 26(i) P.D. 241, in which the European Convention on Extradition was interpreted according to the interpretation prevailing in international law. The National Labour Court, too, interprets Israeli legislation which follows in the wake of an international labour convention ratified by Israel in accordance with that Convention, see, e.g. - “Elite” Israel Chocolate Manufacturing Co. Ltd. - Sarah Lederman (1977/8) 9 P.D.A. 255, at 264; Management of Nahariah Asbestos-Cement Manufacturing- General Federation of Labour in Israel et al. (1977/8) 10 P.D.A. 7, at 19.

51 (1953) 7 P.D. 107.

52 6 L.S.I. 40.

53 K.A. 17, vol. 1, p.186. See also H.H. no. 79, p. 204.

54 Rosenblatt v. The Registrar of Lands, Haifa et al. (1947) A.L.R. 499-509 at 505. In this case, the petitioner challenged the legality of the Regulations of 1939 which were designed to restrict the transfer of land in Palestine to Jews, by arguing that they were incompatible with the Terms of the Mandate.

55 See Leon v. Gubernik (1948) 1 P.D. 58, 1 S.J. 41; Al-Karbuteli v. Minister of Defence (1949/50) 2 P.D. 5. See also National Groups v. Minister of Police (1970)24(ii)P.D. 141, at 212.

56 (1967) 21(ii) P.D. 20.

57 At 26-27.

58 Supra n. 9, at 37-8. See also Prof. N. Feinberg's article, supra n. 19.

59 (1972/3) 4 P.D.A. 365.

60 K.A. 288, vol. 10, p. 27.

61 Supra n. 59, at 371-372.

62 This article has been replaced by sec. 30 of the Contracts (General Part) Law, 1973 (27 L.S.I. 117).

63 Supra n. 59, at 379.

64 Ibid., at 371-372.

65 Ibid., at 377.

66 K.A. 30, vol. 1, p. 559.

67 It should be pointed out that the General Staff Orders require I.D.F. soldiers to conduct themselves in accordance with these Conventions, which were published as appendices no. 61, 62 to the General Staff Orders (1955). See also General Staff Orders 33.0133 of 30 July, 1982.

68 Al-Tin v. Minister of Defence et al. (1973) 27(i) P.D. 481; Al Saudi et al. v. Head of the Civil Administration in the Gaza Strip (1987) 41(iii) P.D. 138, and Shahin et al. v. Commander of I.D.F. Forces in the Area of judea and Samaria et al. (1987) 41(i) P.D. 197.

69 Arjuv et al. v. Commander of I.D.F. Forces in the Area of Judea and Samaria et al. (1988) 42(i) P.D. 353.

70 Al Nawar v. Minister of Defence et al. (1985) 39(iii) P.D. 449.

71 See, in particular, Abu Awad v. Commander of the Area of Judea and Samaria (1979) 33(iii)P.D. 309; Kawasmeh et al. v. Minister of Defence et al. (1981) 35(i)P.D. 617; Affu et al., supra n. 9; Sejdiah et al., supra n. 22. In the last two decisions cited, Bach J. dissented from the majority opinion on this point, for in his opinion sec. 49 of the Fourth Geneva Convention does not permit any expulsion - see Affu, at 67-76 and Sejdiah, at 826-829. On the problem of expulsion, see Dinstein, Y., “Settlements and Deportations in Administered Territories” (1979/1980) 7 Iyunei Mishpat 188Google Scholar; Dinstein, Y., “Deportation from Administered Territories” (1988) 13 Iyunei Mishpat 403–416Google Scholar.

72 Hilu et al. v. Government of Israel et al., supra n. 10, at 181 (the Pit'hat Rafiah case); see also his statement in Ayub et al. v. Minister of Defence et al., (1979) 33(ii) P.D 113, at 120 (the Beth El case).

73 See supra nn. 11 and 12.

74 See supra n. 17.

75 In 1981, the General Assembly of the United Nations adopted a Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, but so far, no treaty on this topic has been signed. See Lerner, N., “The Final Text of the U.N. Declaration Against Intolerance and Discrimination Based on Religion and Belief” (1981) 12 Israel Yearbook on Human Rights 185Google Scholar.

76 See supra n. 69.

77 Supra n. 17, at 333. These words were quoted with approval by the National Labour Court in the Committee of Air Crew Stewards case, supra n. 59, at 377. On the question to what extent the various human rights instruments reflect customary law, see Meron, T., Human Rights and Humanitarian Norms as Customary Law (Oxford, 1989) 79–135Google Scholar.

78 At 59 ff. of the Report, para 3.21.

79 Supra n. 59, at 372, 377. The Court also relied on the U.N. Charter, to which Israel is a party since 1949.

80 Eastern Greenland case, Permanent Court of International Justice, Series A/B, no. 53, 1933, at p. 53; Nuclear Test cases, 1974 International Court of Justice Reports 267, at 472; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), ibid., 1986, p. 3, at 130-132; Case Concerning the Frontier Dispute (Burkina Faso/Mali) ibid., 1986, p. 554, at 573-574.

81 Cohn, H., Foreword to The Rule of Law in the Areas Administered by Israel, Israel National Section of the International Commission of Jurists(1981) viiiGoogle Scholar; Shamgar, M., “Legal Concepts and Problems of the Israeli Military Government - The Initial Stage”, in Shamgar, , ed., Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, 1982) 13–60, at 32, 42 and 48Google Scholar. This declaration has been dealt with extensively in the very apt words of my friend, Prof. N. Bar-Yaacov, in this issue, p. 485.

82 Shamgar, ibid., at 31-43. It should be mentioned that other states too usually claim that armed conflicts in which they are involved are not subject to the Geneva Convention: “There are, in fact, so many situations in which the applicability of the Geneva Conventions as a whole or of their Article 3 has been denied that the not uncommon practice has been rejection of the law, rather than its formal recognition and implementation” - Meron, T., Human Rights in Internal Strife: Their International Protection(Grotius, Cambridge, 1987) 43Google Scholar.

83 Kawasmeh et al. v. Minister of Defence et al., supra n. 71, at 627-8.

84 The Affu case, supra n. 9, at 77-8.

85 Supra n. 22, at 830.

86 E. Nathan, “The Power of Supervision of the High Court of Justice over Military Government”, in Shamgar, ed., supra n. 81, a 109-170.

87 See Bar-Yaacov, “The Applicability of the Laws of War to Judea and Samaria (The West Bank) and to the Gaza Strip”, in this issue, p. 485.

88 This opinion is based on a certain interpretation given by the government to the words “… occupation of the territory of a High Contracting Party…” in sec. 2 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, see supra n. 82. On the opinion of the Supreme Court concerning the status of Jordan in Judea and Samaria, see an obiter dictum in Ha'Etzni v. State of Israel (1980) 34(iii) P.D. 595, at 597.

89 See supra n. 67.

90 See B. Rubin, supra n.1, at 230, 237, 240-241: “The Area Commander has to comply with the laws of war also because it is the laws of war which have created this function and have determined the Commander's powers and obligations… This characteristic of the Area Commander requires that his acts be reviewed in the light of all the laws of war which bind us, and from this perspective there is no difference between customary law and treaty law”. (p. 237).

91 The Affu case, supra n. 9, at 39; I.L.M. at 158-259.

92 Shamgar P. also quotes from the late Prof. N. Feinberg, supra n. 19, Prof. Y. Dinstein, supra n. 1, and the late Sir Hersch Lauterpacht. A different view has been expressed by B. Rubin, supra n. 1, at 220-221.

93 See the Bibliography in supra n. 2.

94 S. Shetreet, supra n. 2, at 376.

95 See the Rules of Procedure of the Government, approved by Resolution no. 534 of the Government, March 25, 1984; Directives of the Attorney General, 64.000 A, August 1, 1984. These changes were made in the wake of the Bill tabled by MK Prof. A Rubinstein, see H. Golan, supra n. 2, at 91.

96 The Affu case, supra n. 9, at 41; I.L.M. at 160.

97 For example, in the U.S.A., in France, in Holland, in Belgium, in South Korea, in Argentina, in Switzerland, and in the African states whose constitutions are influenced by the French Constitution.

98 The Affu case, supra n. 9, at 41; I.L.M. 160.

99 Id.

100 Ibid., at 41-42; I.L.M. 160. On this distinction, see also Restatement (Third) of the Foreign Relations Law of the United States(1987) vol. I, pp. 42-43, 46-48, 53–57Google Scholar.

101 Supra n. 22, at 813.

102 B. Rubin, supra n. 1, at 223-227, suggests that automatic incorporation apply only to law-making treaties and not to contract-like treaties. The petitioners in Affu, supra n. 9, sought to base themselves on this distinction (p. 34), but apparently it was not adopted by the Court.