JUDICIAL REVIEW OF MILITARY COURTS IN THE WEST BANK (JUDEA AND SAMARIA) IN ADMINISTRATIVE AFFAIRS - BETWEEN INTERNATIONAL LAW AND ADMINISTRATIVE LAW

The legal system in the Region of the West Bank (Judea and Samaria) is complex and composed of different legal systems existing prior to 1967 (the Ottoman law, the Mandatory law, and the Jordanian law), and legal systems that have evolved after 1967, (the international law). The Israeli administrative law is also practiced in the area because the administrative authorities controlling certain territories in the Region are Israeli authorities, headed by the military commander and the civil administration. Accordingly, and according to the international law, the competent judiciary for reviewing the administrative authorities in the Region are the military courts. This article has shown that in addition to their work in the criminal aspect, the military courts also have an important and unique role with regards to the administrative affairs. This activity includes a judicial review on the administrative authorities in the Region in an array of domestic fields: environment, labor law, taxes, public transportation, and especially property law and land disputes. This article has also presented several underlying institutional flaws that undermine the quality of the required judicial review of the military courts on administrative disputes between the residents and the authority in the Region. Such important administrative disputes with far-reaching consequences on the Region need to be deliberated in front of sovereign, professional, and authorized courts and not in front of semi-judicial comities whose recommendations are not mandatory. Those are disputes with much weight that should be decided by a strong judiciary with many powers, effective and accessible to the litigants. Accordingly, this article has suggested a legal reform which is in line with international law, according to which the military courts' power to review the other authorities would expand, especially in the fields of property and land disputes. This article has presented three justifications to the suggested reform. Firstly, the reform will strengthen the principle of separation of powers in the Region. According to international law, the military commander serves as both the legislative and executive branches. Thus, fine-tuning is required, which will bring better supervision by the judiciary over the other authorities' actions. Secondly, the reform will reduce possible institutional conflicts of interests of the administrative authorities in the Region and will assist in improving the appearance of justice in those procedures. Thirdly, the suggestion aligns with different institutional reforms made in the Region in the last few years with regards to expanding the authorities of the military courts. Nevertheless, possible criticisms of the suggestion to expand the powers of the military courts, at least in the administrative affairs, would argue that the law in the Region should be based exclusively on international law. It would argue that based on the belligerent occupation laws, it is not desirable, and even prohibited, to expand the powers of the military courts of the country holding the territory. This article thus argued that this criticism might have merit. However, it can be argued that as the belligerent occupation lasts for a longer period of time, the weight of the interest behind preserving local law decreases and it seems that there is greater legitimacy for changes narrowing the gap between the original law and the needs of dynamic reality, without such actions constituting legal annexation. Moreover, even if this criticism, arguing that it is inappropriate to expand the military courts' powers in the Region is correct, then because of the important above-described justifications, the suggested legal change is still desirable. This article thus claims that such important administrative disputes with far-reaching consequences on the Region should be deliberated in front of sovereign, professional, and authorized courts with extensive powers to supervise the administrative governance in the Region.