During Second World War, Lord Atkin famously contradicted Cicero’s 2000-year-old dictum (Silent enim leges inter arma),1 when he said: “In this country, amid the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace.”2 In contemporary states, it is rare to rule by brutal force, even in times of emergencies, threats to national security, or even in times of occupation of an alien population. Israel indeed ruled West Bank and Gaza Strip using law and legality. Changes to local Palestinian legal and judicial systems were often introduced through military orders. In this paper I discuss the nature and role of rules by legislated statutes, enacted by the Palestinian Authority since its establishment in 1994, and the rules by military orders, enacted by Israel since its occupation of the West Bank (including East Jerusalem) and Gaza Strip since 1967. I investigate on the difference between both enactments, their place within the legal system of the occupied Palestinian territory, and their contribution into framing and limiting state’s exercise of power over the population under its jurisdiction. Indirectly, but inevitably, this paper will give an insight on the difference that exists between the law produced by a national law giver and the law produced by an alien law giver. To make my case simpler, I imagine a Palestinian judge, 3 in the court of Ramallah in 1968, one year after the Israeli occupation of the West Bank, who needed to rule whether to accept the claim of the plaintiff, based on a military order, or the respondent opposite claim, based on a rule present in a Jordanian law. If he admits that rules contained in military order are rules of law, then the second question would be whether he is under the moral obligation to apply the military order.4 I then imagine the same judge in 1997, three years after the establishment of the Palestinian Authority, having to rule a similar case without any legislation, yet, from the Palestinian Authority. What to do?5 The list of cases in which the legality of legislated enactments may be under question may continue.
Khalil, Asem. Are (Palestinian Authority’s) Legislated Statutes Substantially Different from (Israeli) Military Orders? (April 30, 2010).
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