Constitutional Mindset: The Interrelations between Constitutional Law and International Law in the Extraterritorial Application of Human Rights

Abstract

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

Self-Proclaimed Human Rights Heroes: The Professional Project of Israeli Military Judges

“…The use of "human rights" as a search term turned out to be too restrictive, as judges do not always use that specific term when referring to the notion of protecting individual inherent rights. This approach was validated by previous research on the centrality of Israeli law, as opposed to international human rights law, in judicial decisions of the military courts (see Ronen 2013;Ben-Natan 2014;Ramati 2019).…”

“…Existing literature on the uses of human rights and Israeli law by military judges relies on their judicial decisions (Viterbo 2012;Ronen 2013;Ben-Natan 2014;Viterbo 2018a). When judges speak through their decisions, they also represent the court as an institution.…”

“…Legally qualified judges are Israeli-trained lawyers admitted to the Israeli Bar Association, after obtaining law degrees and completing internships; the same applies with military prosecutors. 11 Defense in military courts is provided by Palestinian lawyers and Israeli lawyers (Bisharat 1995;Hajjar 2005;Ben-Natan 2014;Ziv 2018).…”

“…These legitimacy efforts have been addressed primarily to the international community and Israeli society, and to a much lesser extent, its Palestinians subjects (Shamir 1990;Bisharat 1994Bisharat , 1995Hajjar 1997). More recent literature has highlighted the significance of self-legitimation, maintaining a positive self-image among state actors themselves and segments of society (Ron 2000;Cohen 2001;Ben-Natan 2014;McEvoy and Schwartz 2015;Dudai 2017b). The professional project of military judges after 2000 and the older state legitimizing project serve external and internal legitimation efforts, also addressing judges' professional peers in the civilian legal system.…”

“…This slow civilianization process included an article stating the independence of military judges; 15 the establishment of a Military Court of Appeals (MCA); 16 the abolition of review of sentences by the military commander; 17 exclusive appointment of legally qualified judges and establishment of a mixed military-civilian appointment committee for military judges; 18 and the separation of the military courts from the military prosecution, forming an independent unit (Benichou 2005, 299-306;Cavanaugh 2007, 207). Civilianization tipped the balance of the military justice system toward the legal aspects and away from the military aspects, but still maintained significantly lower standards of procedural rights for defendants (Ben-Natan 2014).…”