Israeli Military Order

Israeli military orders are the principal instrument through which the Military Commander of Judea and Samaria has exercised legislative authority since June 1967.[1] They occupy a distinctive constitutional space: they can materially alter the law in force in the territories without making Israeli domestic law applicable there as a whole.[1] This distinction — between introducing Israeli legal norms through orders or applying them to Israeli residents personally, on one hand, and extending Israeli territorial jurisdiction across the West Bank, on the other — has been affirmed by Israel's Supreme Court and is central to understanding how the system operates.[1]

The legal environment to which military orders belong is layered rather than uniform.[1] It encompasses Ottoman and British Mandatory rules that were never modified by military orders, Jordanian law subject to amendment or replacement by those orders, public international law governing belligerent occupation and human rights, and the orders themselves.[1] Since the 1993–1995 Oslo process, Palestinian Authority legislation has been added to this framework in Areas A and B, while Israel retains full administrative and security control of Area C, which comprises approximately 60 percent of the West Bank.[2][3]

“Security legislation” in this context has been defined as all legislation enacted by the military commander of the territory.[4] That definition captures the breadth of the order-making power: the commander holds legislative, appointive, and executive authority, is formally the representative of the occupying power, and is simultaneously bound to implement Israeli government policy.[1]

IDF military government in Judea and Samaria was proclaimed on June 7, 1967, as Israeli forces gained control of the West Bank during the Six-Day War.[5] Israel took control of the territory when approximately 700,000 Palestinians lived there and had to organize the administration virtually from scratch, with responsibilities that included maintaining law and order, providing public services, and attending to the population's needs.[6][5]

On that same day, the area commander issued the foundational document of the system: the Proclamation Regarding Law and Government Order (West Bank Region) (No. 2). The proclamation declared that “the law existing in ‘the region’ on June 7, 1967 would remain in force,” subject to the proclamation itself, subsequent orders, and changes arising from military rule.[1] It simultaneously vested legislative, governmental, and administrative powers in the Military Commander.[1] A companion instrument, Proclamation No. 3, and an Order Concerning Security Regulations were also issued that day; the early orders were designed to emphasize respect for local law and the norms associated with the 1949 Geneva Conventions.[7]

The legal architecture behind these proclamations drew on Article 43 of the Hague Regulations, which requires an occupying authority to restore and ensure public order and safety “while respecting, unless absolutely prevented, the laws in force in the country.”[4] Israel's 1967 government decision refrained from extending Israeli law or jurisdiction to the West Bank as a whole. East Jerusalem was treated separately, with Israeli law, jurisdiction, and administration extended there.[1][8] The pre-existing local law — Ottoman codes, British Mandatory regulations, and Jordanian statutes — remained in place unless changed by military order or decree.[9]

Meir Shamgar, serving as Military Advocate General in the 1960s, is credited with designing and building the legal and command structure used to administer the territories after the Six-Day War.[7] The West Bank was administered directly by Israeli military commanders until 1981, when a military Civil Administration was established to handle Palestinian civil affairs, though the overarching military framework remained in place.[10]

The Military Commander formally represents the occupying power and holds legislative, appointive, and executive powers in the territories.[1] Although the commander is the formal holder of these powers, the position is simultaneously subject to the Israeli government and obligated to implement government policy — meaning that a legal challenge formally directed at the commander may in practice concern a decision made at the government level.[1]

IDF Central Command is responsible for security and law-and-order enforcement in the West Bank and coordinates the entities operating in the area, including the Civil Administration and police.[6] The head of Central Command retains approval authority over significant operations; for instance, an evacuation of an outpost built on private Palestinian land must be ordered by the Central Command commander.[6] The military government issued orders regulating virtually every aspect of life, and as the occupying power, Israel also held the authority to permit or cancel local-government elections and to appoint or dismiss Palestinian officials.[11]

For much of the Palestinian population, military government remained the governing framework from 1967 until the 1995 Oslo Interim Agreement transferred significant powers to the Palestinian Authority.[11] Municipal governments and village councils continued to administer local services during the period of direct military government.[11]

Security orders constitute one of the most consequential categories of military legislation. When Israel took control of the West Bank, the 1945 British Defence (Emergency) Regulations governed security matters. Military Order 378, concerning security provisions, replaced the relevant 1945 regulation in 1970; the security orders were amended in 1980 to incorporate features of the Israeli system.[9]

Over subsequent decades, Israeli military criminal legislation accumulated across numerous individual orders. In 2009 most of it was consolidated into the Order regarding Security Provisions (Consolidated Version) (Judea and Samaria) (No. 1651), 5770–2009 — a codification that brought together relevant criminal offenses and detention provisions, including rules for arrest, detention pending trial, and administrative detention.[12][4] Order No. 1651 replaced most earlier orders regulating the West Bank's normative framework.[4]

Under Order No. 1651, in specified combat circumstances, an initial arrest period of up to eight days is permitted before a suspect must be brought before a judge.[12] This provision was developed during Operation Defensive Shield in 2002 and was reviewed by Israel's Supreme Court in HCJ 3239/02, Marab et al. v. the IDF Commander for the West Bank.[12] For cases involving offenses punishable by death, Order No. 1651 requires that proceedings be heard by three judges all ranked lieutenant colonel or higher, with a unanimous decision, and that an automatic appeal go to a five-judge Military Court of Appeals panel.[13]

A 2005 amended version of the West Bank administrative-detention decree authorized the commander, or a designated military officer, to issue a written detention order for up to six months when there was a reasonable belief that detention was required for area or public security; an order could be issued in the detainee's absence.[9] The decree specified that the authority should not be used unless the officer considered it “crucial for definite security reasons.”[9] A detainee had to be brought before a military judge within eight days or released unless another legal basis for detention applied; the judge could approve, cancel, or shorten the order.[9]

An order could be cancelled if unsupported by security grounds, made in bad faith, or based on irrelevant considerations.[9] Decisions could be appealed to the Military Court of Appeals, proceedings were held behind closed doors, and the decree permitted departures from ordinary evidentiary rules in specified circumstances.[9] Administrative-detention orders may be renewed for periods of up to six months and are subject to judicial review at each stage.[12]

Israel's Supreme Court has described administrative detention as “a difficult default option,” stressing that authorities should seek to indict suspects through criminal proceedings and that detention orders and extensions require careful review.[9] During Operation Defensive Shield in 2002–2003, temporary Order 1500 and its amendments temporarily suspended Military Order 378 and allowed longer detention without a judicial warrant: an authorized officer could initially order detention for up to 18 days, later revised to 12 days, and preventing access to a lawyer was permitted for 18 days rather than the 15 days allowed under Military Order 378.[9]

Order No. 1651 also extended restrictions on “unlawful associations” to groups aiming to harm public security, IDF forces, or public order in Israel or areas held by Israel.[3] Authorities have used military law to designate associations as “hostile organizations,” and charitable organizations and media outlets have faced closures, raids, and arrests; procedures for challenging such designations are described as limited.[3]

A 2024 JCFA legal commentary states that Israel established military courts in the West Bank for law-enforcement purposes under Article 66 of the Fourth Geneva Convention.[12] The military court system comprises a court of first instance and a court of appeals, both operating under order.[4] These courts adjudicate suspected criminal offenses, including terrorism-related offenses, and are distinct from ordinary civilian courts inside Israel.[12]

Military courts have jurisdiction, in general, over offenses committed in the West Bank even when the accused is not a resident of the territory.[4] Where Israeli citizens or residents fall under both military and civil court jurisdiction, they are generally tried in civil courts inside the Green Line, except when most circumstances concerning the accused and the offense connect the case to the West Bank.[4] Palestinians from the West Bank are tried under military law in Israeli military courts, while Israelis living in West Bank settlements are tried under Israeli civilian law in district courts inside the Green Line.[3]

More than 200,000 cases were brought before Israeli military courts from 1967 through the period covered by the UN Fact-Finding Mission on the Gaza Conflict.[10] A freedom-of-information response cited in the U.S. State Department's 2023 human-rights report stated that 99.6 percent of charges filed against Palestinians in Israeli military courts ended in guilty-plea bargains.[3]

Military orders have been a primary vehicle for restructuring planning and construction law in the West Bank. A UN fact-finding report characterizes the Towns, Villages and Buildings Planning Law (Judea and Samaria) Order (No. 418), 5731–1971, as annulling existing planning and construction laws and transferring related civil powers from local Palestinian authorities to Israeli institutions, with ultimate discretion resting with military commanders.[10]

Israeli military orders have also amended the underlying Jordanian law on property matters, including planning and construction, across the West Bank.[2] A JCFA commentary cites a specific example in Area C: Order No. 1797, titled “Order regarding the removal of new structures,” issued by the Israeli Military Governor on April 17, 2018, concerning structures lacking required permits or built in violation of permit conditions.[14]

UN monitors reported that Israeli authorities used military orders to bypass the regular planning process and carry out demolitions and confiscations in Area C with little or no prior notice.[3] Affected communities sometimes did not receive demolition orders until operations were already underway, limiting the opportunity to object in advance; other military orders authorized seizure of mobile structures without prior notice.[3] As of December 30, 2023, Israeli authorities had demolished 1,171 Palestinian structures in the West Bank, including East Jerusalem, displacing 2,261 people.[3]

Military orders have also regulated public and political activity. A military order covering the West Bank and Gaza required a permit from the regional military commander for “political” gatherings of ten or more people and carried a penalty of up to ten years' imprisonment or a fine for violations.[3] No public reports of commanders granting such permits were recorded in the year covered by the State Department's 2023 human-rights report.[3] IDF Central Command also maintained closed military zones in the West Bank where Palestinians could not publicly assemble.[3]

In the first decade following 1967, an IDF military order prohibited displaying political symbols and distributing political publications and restricted public gatherings, significantly hindering organized civil resistance.[15]

The Military Commander also issued a distinct category of municipal orders for Israeli settlements in Judea and Samaria. These orders adopt arrangements from Israeli law by reference in fields such as education, welfare, and local government, producing what analysts describe as significant synchronization between the Israeli and West Bank legal systems without formally applying Israeli law in its entirety to the territory.[16] Israeli civilian law largely applies to settlers through military orders, and some Israeli legal norms have been incorporated into law applicable to all or parts of the West Bank.[2]

The critical distinction maintained throughout the legal framework is that introducing Israeli legal norms for Israeli residents through military orders does not amount to applying Israeli law territorially across the West Bank as a whole — a boundary confirmed by the Supreme Court in HC 4400/92, which held that changes made by Military Commander orders did not themselves constitute the territorial application of Israeli law.[1]

The 1993 Oslo process marked the beginning of a staged transfer of powers from the Israeli military government and its Civil Administration to the Palestinians.[8] Under the 1995 Interim Agreement, governmental powers — including legislation and land regulation — were transferred to the Palestinian Authority in Areas A and B.[14] The PA took over full administration and security responsibility in Area A and partial control in Area B, while Israel retained full administrative and security control in Area C pending a permanent-status agreement.[11]

Following the Oslo Accords, the legal framework governing Palestinians in the West Bank came to include Jordanian and Mandatory statutes in effect before 1967, military ordinances enacted by the Israeli military commander, and PA law in relevant areas.[17] Israelis living in the West Bank remained subject to military ordinances as well as Israeli law and legislation.[17] Palestinians in Area C continued to be subject to military ordinances enacted by the Israeli military commander.[17]

Israeli military commanders retained authority to intervene in Area A despite the PA's formal security responsibility there, while the PA retained responsibility for Palestinian civil affairs in Area C that did not relate to property.[2] Palestinians across the areas remain under overarching Israeli military jurisdiction.[2]

A 2024 JCFA legal commentary describes Israeli military orders as legally distinct from Israeli legislation, though often substantially similar in content.[12] The Supreme Court has treated Military Commander orders as having the status of primary legislation, while still subjecting them to judicial review under Israeli administrative law and public international law.[1] The precise legislative status of the orders is nonetheless characterized as unclear: because they are reviewable, an argument exists that they function substantively as subordinate legislation.[1]

The Court's review draws on the international law of belligerent occupation — principally the Hague Regulations and the Fourth Geneva Convention — and Israeli administrative-law principles, including substantive and procedural fairness, reasonableness, and proportionality.[18] When reviewing a military order, the Court requires a rational connection between the means and objective, use of the least injurious means available, and an injury proportionate to the benefit obtained.[18]

In the landmark separation-fence cases, the Court applied this proportionality framework directly to individual orders. It found the balance disproportionate in several challenged fence-route sections and nullified the relevant orders, while rejecting the challenge to one specific order, Tav/105/03.[18] In a separate case concerning Route 354 near Hebron, the Supreme Court found a military closure order disproportionate and directed the IDF to rescind it and find alternative means to protect the residents of the settlement of Negohot within three months.[19] Similarly, in the Alfei Menashe fence case, the Court found that the fence route harmed approximately 1,200 residents of five Palestinian villages and ordered it rerouted, while instructing that each section of the fence be assessed by balancing Israel's military and security needs against the rights of the local population.[20]

A critical principle running through the Court's jurisprudence is the temporal limit on the commander's authority: the military commander's power is characterized as temporary, not extending to permanent arrangements and not permitting the commander to take account of considerations beyond the proper administration of the area under belligerent occupation.[18] The Court has emphasized that the commander must balance the army's needs against the needs and rights of the local population, enabling normal daily life as far as possible.[18]

A number of significant legal and political disputes surround Israeli military orders and the broader framework of military governance.

The foundational question concerns the legal characterization of Israel's presence in the West Bank. The INSS legal paper applies occupation law as the framework governing the commander's authority in non-annexed territories.[1] A JCPA article presents Israel's historical position that the West Bank was not occupied in the customary-law sense because the territory lacked a prior legitimate sovereign, while also describing Israel's commitment to apply the humanitarian provisions of the Fourth Geneva Convention in practice.[21] The International Court of Justice has taken the contrary position that the West Bank, including East Jerusalem, remained occupied territory.[21] Israel's 2019 report to the UN Human Rights Committee stated that the International Covenant on Civil and Political Rights applies within a state's territory and does not extend beyond its national territory, though the report acknowledged debate and noted that Israeli courts refer to the Covenant and other human-rights treaties in West Bank cases.[13]

The formal legislative status of military orders is itself unresolved. The Supreme Court has treated them as analogous to primary legislation while subjecting them to review; commentators have noted that reviewability may indicate they function substantively as subordinate legislation.[1] The differentiated application of legal systems — Palestinians tried in military courts and Israeli settlers generally tried in civilian courts inside the Green Line — has drawn criticism from NGOs, which argue that international humanitarian law permits that arrangement only temporarily during military occupation.[3] Those critics characterize the long-term application of different legal systems to the two populations as incompatible with international law.[3]