Constitutional Law

HCJ 7846/19

 

 

Petitioners:                  1.         Adalah Legal Center for Arab Minority Rights in Israel

                                    2.         Association for Civil Rights in Israel

 

                                                            v.

 

Respondents:              1.         State Attorney’s Office – Cyber Department

                                    2.         Attorney General

 

Requests to Join:         1.         Lori Shem Tov

                                    2.         Movement for Freedom of Information

 

Petition for order nisi

 

Israeli Supreme Court cases cited:

[1]        EA 8/21 Shachar Ben Meir, Adv., v. Likud, (Feb. 27, 2019)

[2]        EA 27/21 Yisrael Beiteinu Faction v. Shamir Systems and Operators Ltd., (Feb. 26, 2019)

[3]        AAA 3782/12 Tel Aviv-Jaffa District Commander v. Israel Internet Association, (March 24, 2013) [https://versa.cardozo.yu.edu/opinions/tel-aviv-jaffa-district-commander-v-israel-internet-association]

[4]        LCA 4447/07 Mor v. Barak I.T.T. [1995] International Telecommunications Services Corporation, IsrSC 63(3) 664 (2009)

[5]        HCJ 8600/04 Shimoni v. Prime Minister, IsrSC 59(5) 673 (2005)

[6]        HCJ 6824/07 Manaa v. Israel Tax Authority, IsrSC 64(2) 479 (2010)

[7]        HCJ 399/85 Kahana v. Broadcasting Authority Management Board, IsrSC 41(3) 255 (1987)

[8]        HCJ 5185/13 A. v. Great Rabbinical Court, (Feb. 28, 2017)

[9]        MApp 2065/13 A. v. State of Israel, (March 22,2013)

[10]      HCJ 6972/07 Akiva Laxer, Adv. v. Minister of Finance, (March 22, 2009)

[11]      HCJ 84/82 Histadrut Po’alei Agudat Yisrael v. Minister of Religious Affairs, IsrSC 37(1) 813 (1984)

[12]      HCJ 828/90 Likud Faction of the Haifa Municipal Council v. Haifa Municipal Council, IsrSC 45(1) 506 (1991)

[13]      HCJ/149 Bejarano v. Police Minister, IsrSC 2 80 (1949) [https://versa.cardozo.yu.edu/opinions/bejerano-v-police-minister]

[14]      LCrimA 10141/09 Ben Haim v. State of Israel, (March 6, 2012)

[15]      HCJ 2918/93 Kiryat Gat Municipality v. State of Israel, IsrSC 47(5) 832 (1993)

[16]      HCJ 5128/94 Federman v. Minister of Police, IsrSC 48(5) 647 (1995)

[17]      HCJ 8600/04 Chair of the Hof Azza Regional Council v. Prime Minister, IsrSC 59(5) 673 (2005)

[18]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel, (Feb. 27, 2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[19]      HCJ 144/50 Dr. Israel Sheib v. Minister of Defence, IsrSC 5 399 (1951) [https://versa.cardozo.yu.edu/opinions/sheib-v-minister-defence]

[20]      HCJ 4374/15 Movement for Quality Government v. Prime Minister, (March 27, 2016) [https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[21]      CA 9183/09 Football Association Premier League Ltd. v. Anon., IsrSC 65(3) 521 (2012)

[22]      HCJ 7721/96 Israeli Insurance Adjusters Association v. Supervisor of Insurance, IsrSC 55(3) 625 (2001)

[23]      HCJ 6579/99 Filber v. State of Israel, (Nov. 1, 1999)

[24]      HCJ 551/99 Shekem Ltd. v. Director of Customs and VAT, IsrSc 54(1) 112 (1999)

[25]      5860/16 Facebook Inc. v. Ben Hamu, (May 31, 2018)

[26]      LCA 1239/19 Shaul v. Nayadli Communications Ltd., (Jan. 8, 2020)

[27]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel, IsrSC 61(1) 1 (2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[28]      HCJ 5100/94 Public Committee against Torture v. State of Israel, IsrSC 53(4) 817 (1999) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-israel]

[29]      LCA 3145/99 Bank Leumi v. Hazzan, IsrSC 57(5) 385 (2003)

[30]      CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995); IsrLR 1995 (2) [https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

[31]      HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[32]      HCJ 2442/11 Haim Shtanger, Adv. v. Speaker of the Knesset, IsrSC 66(2) 640 (2013) [https://versa.cardozo.yu.edu/opinions/shtanger-v-speaker-knesset]

[33]      HCJFH 9411/00 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion, IsrSC 63(3) 41 (2009)

[34]      MApp 1190/18 Ethics Committee of the Tel Aviv District of the Bar Association v. David Yedid, Adv., (March 28, 2019)

[35]      HCJ 442/71 Lansky v. Minister of the Interior, IsrSC 26(2) 337 (1972)

[36]      CA 5739/18 Operators of the Website www.oligarchescorts.com v. State of Israel, (Oct. 15, 2018)

[37]      CrimFH 7383/08 Ungerfeld v. State of Israel, (July, 11, 2011)

[38]      LCrimA 5991/13 Segal v. State of Israel, (Nov. 2, 2017)

[39]      LCrimA 7052/18 State of Israel v. Rotem, (May 5, 2020)

[40]      HCJ 4455/19 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Israel Police, (Jan. 25, 2021)

[41]      HCJ 1901/94 MK Landau v. Jerusalem Municipality, IsrSC 48(4) 403 (1994)

[42]      HCJ 151/11 Ruth and Emanuel Rackman Center for the Advancement of the Status of Women v. Minister of Justice, (Dec. 27, 2011)

[43]      HCJ 384/82 Pachmas Metal & Plastic, Registered Partnership from Ein Horesh v. Minister of Finance, IsrSC 37(4) 297 (1982)

 

 

The Supreme Court sitting as Hugh Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice A. Stein

 

 

Judgment

(April 12, 2021)

 

Deputy President H. Melcer:

1.         The petition before the Court concerns the constitutionality of the activity of the Cyber Department of the State Attorney’s office (hereinafter: the Cyber Department, or the Department) in regard to online network operators, content providers and other online platforms (hereinafter: online platform operators or operators) with whom the Department maintains contact in order to prevent publications that may violate Israeli criminal law.

2.         In the framework of the petition, The Petitioners requested that an order nisi be issued against the Respondents, ordering them to show why the Cyber Department should not immediately desist from requesting that operators “voluntarily” remove content from the network.

            I will now present the facts relevant to deciding the matter.

 

Background and summary of relevant facts

3.         In September 2015, a cyber-enforcement unit was created in the Ministry of Justice (in the framework of the State Attorney’s Office). It’s creation “derived from the need for a focused effort to confront crime and terror in cyberspace, after identifying a sharply rising trend in cybercrime” (from the 2015-2016 Summary of the State Attorney’s Office – Appendix P/1 of the petition; hereinafter: the 2015 Summary). As arises from the preliminary response of the Respondents listed in the heading, the tasks assigned to the unit, which became a department, focused upon activity intended to reduce the harms and dangers caused by crimes perpetrated online, in two separate enforcement tracks that will be described below.

 

The statutory enforcement track

4.         The first enforcement track, which is not central to the present petition, concerns proceedings conducted by the Cyber Department by virtue of the Authorities for the Prevention of Committing Crimes through use of an Internet Site Law, 5777-2017 (hereinafter: Authorities for the Prevention of Crimes Law, or the Law), whose purpose is to prevent the commission of certain offenses, or the exposure of internet users to certain offenses committed by means of internet sites, by means of judicial orders (above and hereinafter: the statutory enforcement track). The Cyber Department’s activity conducted pursuant to the Law is consistent with the classic view of criminal enforcement in which the a prosecutor, as defined by the Law (who is one of the attorneys in the Department who, in accordance with sec. 1 of the Authorities for the Prevention of Crimes Law, has been so authorized by the Attorney General) applies to a District Court judge (so authorized by the President of the District Court) for an order instructing providers of access, searches and storage of content on the internet to remove or restrict access to content appearing on various internet sites, pursuant to the authority established therefor in the Prevention of Crimes Law (sec. 2 – 4 of the Law). This authority is specific to a number of criminal offenses perpetrated on the internet, such as: organizing or conducting illegal gaming, lotteries or betting (sec. 222 of the Penal Law, 5737-1977 (hereinafter: the Penal Law)), publishing pedophilic content (sec. 214(b) of the Penal Law), publishing prostitution services (secs. 202, 205A, 205C(a), 205D of the Penal Law), trafficking in dangerous drugs (secs. 13-14 of the Dangerous Drugs Ordinance [New Version], 5773-1973), an offence under sec. 7 of the Fight Against the Phenomenon of the Use of Dangerous Substances Law, 5773-2013, and internet activity by a terrorist organization (under the Counter Terrorism Law, 5776-2016).

            In accordance with the Law, these restraining orders are contingent upon various constraints, including that a restriction of access will not be issued if the means for executing the order constitute eavesdropping under the Eavesdropping Law, 5739-1979, whose provisions apply to the matter.

5.         In addition to the aforesaid, there are additional statutory provisions that grant the courts authority to order the removal of an advertisement, or restrict the publication of certain information, which are not specifically found in the Prevention of Crimes Law (e.g., publication of the name of a complainant in regard to sex offenses (sec. 352 of the Penal Law), or a publication in contravention of the provisions of sec. 34 of the Adoption of Children Law, 5741-1981 (which prohibits publishing the identity of various actors related to the adoption procedure)). In regard to these provisions, the Cyber Department noted in its preliminary response that it only “informs” (the providers) of the fact that the offending content does not meet the restrictions under the relevant law or a judicial order issued thereunder.

6.         In their preliminary response, the Respondents emphasized that the statutory enforcement track is not comprehensive, inasmuch as there is currently no coercive enforcement track that would allow the Cyber Department to act on the internet (subject to a court order) for the removal of additional publications that constitute other criminal offences, among them: content that incites violence, terror, or racism, or content that amounts to sexual harassment and threats. In this regard, it should be noted that the Respondents and others tried to advance legislation that would have granted the courts broader authority to remove harmful content published on the net, but for various reasons, those legislative initiatives did not come to fruition (see: Prevention of Committing Crimes by Means of the Internet (Removal of Content) Bill, 5778-2018; and Removal of Content from the Internet whose Publication Constitutes an Offense Bill, 5777-2016).

            This need, and other reasons that will be presented below, led to the creation of an additional, voluntary enforcement track, which is the focus of the petition before the Court.

 

The voluntary enforcement track

7.         The absence of general, explicit legal provisions granting authority to a judicial instance to order the removal of a publication that amounts to a prima facie criminal offense (beyond the Law, which was itself enacted only on July 26, 2017) led the State Attorney’s office to formulate another, additional conception for criminal enforcement that focuses upon the offense rather than its perpetrator. In this framework, it concentrates its efforts upon network platform operators. This activity is the focus of the petition. The term network platform is a codeword for a variety of civil bodies, mostly very powerful multinational corporations that operate a variety of frameworks for net activity, including:

A.        Online social networks that allow users to communicate with and be visible to other users, and inter alia, also share information, positions, and opinions (e.g., Facebook).

B.        Online search engines that facilitate searching for and retrieving information available on the internet (e.g., Google).

C.        Providers of hosting services for building and storing various internet sites. (In accordance with a work procedure appended to the Respondents’ preliminary response, titled: “Treatment of unlawful contents published in cyberspace” (hereinafter: the Work Procedure)).

 

8.         There would not appear to be any need to discuss the centrality of the above online platforms, which in our current digital age are a center for transmitting and exchanging views, and operate the space in which that discourse occurs. In the absence of regulatory legislation in the area, they also have the power to define the boundaries of the discourse and establish, inter alia, the rules for what is permitted and prohibited in all that concerns expression and the sharing of content on the net. Accordingly, each such platform operator establishes conditions for use or service, and “community rules” that apply to and obligate those seeking to use the social network or the search engine it operates. (See Prof. Balkin’s article: Jack M. Balkin, Free Speech is a Triangle, 118 Colum. L. Rev. 2011 (2018) (hereinafter: Balkin, Triangle)).

            In the framework of the preliminary response, the Respondents presented such rules, which were brought to its attention, that prohibit publication of content, including statements of intentions to commit violent acts, or support for terrorist organizations, as well as incitement and hate speech, or information likely to infringe the privacy of others. It further arises from the material presented to us that various operators also established a general prohibition in their “community rules” upon activity that violates local law. Common to all these conditions for use (or, at least, to all the operators whose community rules were presented to us) is that every user of the online platform, or any person exposed to the publication (whether a person, a corporation or a governmental authority) is afforded the possibility of reporting that a publication violates the platform’s rules, and that the decision as to how to act after the online platform operator is informed of a publication that appears to be harmful is, apparently, given to the exclusive discretion of the platform operator.

            Thus, for example, as the Respondents present it in their preliminary response, the community standards of the Facebook social network establish that a user cannot use the end-user services for a purpose “that is unlawful, misleading, discriminatory or fraudulent”. The said company also has the power to deny or restrict access to content that constitutes a violation of the rules. In addition, the community standards of that company-operator establish various restrictions on content published on Facebook, and in regard to activity on that platform, inter alia, provisions in regard to publications that will not be permitted. Thus, for example, they establish a prohibition upon publishing threats that are likely to lead to “high-severity” violence, and declarations of intentions to commit violent acts.

            These rules generally create a “Notice and Take Down” mechanism (and see: EA 8/21 Shachar Ben Meir, Adv., v. Likud [1], para. 86 (Feb. 27, 2019); and compare: EA 27/21 Yisrael Beiteinu Faction v. Shamir Systems and Operators Ltd. [2], paras 28-29 (Feb. 26, 2019)). By virtue of this mechanism, if the network platform operators receive notice of an alleged violation, they decide whether to leave the publication or remove it. Of late, it is possible to challenge a “take down decision”, at least on Facebook, before a kind of “appeals committee” that has the authority to conclusively decide upon complaints concerning decisions to remove contents from the platform. In early 2020, the board of directors published the said appeals committees, and the rules and procedures that govern such “appeals” (see: Oversight Board Bylaws (2021); and see: Evelyn Douek, What Kind of Oversight Board Have You Given Us?, U. Chicago L. Rev. Online 1 (2020)).

9.         The Cyber Department thus operates on the above track of a “notice and take down mechanism”. In the context of the matter before us, this is carried out in a manner agreed upon between the Department and the relevant internet platform operators, according to which, when the Department takes notice of information concerning a publication that, prima facie, violates Israeli law (whether included in the Prevention of Crimes Law, or not included in that Law), the staff of the Department refers the matter to the attention of the internet platform operators, by means of a structured mechanism for reporting harmful publications, that a prima facie offense is being committed on the infrastructure that it operates. The internet platform operators, in turn, address the report and decide, at their independent discretion, how to act and what to do in regard to the said report – whether to restrict access to that publication, remove it, block the user who violated their “user rules” in regard to publication, or not to take any action. Occasionally, according to the 2015 Summary, the report leads the internet platform operators to suspend or remove the user who published the prohibited expression that was the subject of the report.

10.       The present petition concerns the initiating of the said referrals by the Cyber Department to the internet platform operators in regard to alleged offenses of the aforesaid types that are perpetrated on the net. As noted in the Respondents’ preliminary response and detailed in the Work Procedure that regulate its activities, the Cyber Department periodically receives various requests regarding publications disseminated on the internet from various governmental sources (most of the requests come from security agencies). In accordance with he Work Procedure, upon receiving the request, a preliminary examination is conducted in regard to the existence of a prima facie offence in the publication. The examiner sends its recommendation for further action, and the matter is re-examined by a designated attorney in the Department. Pursuant to the Work Procedure, in appropriate cases, the decision on the request is sent for the personal approval of the Department’s director when the request concerns a publication that relates to senior civil servants, including employees of the Ministry of Justice and judges, or when there are doubts as to the lawfulness of the publication, or where the publication raises some other material question. Additionally, when the matter falls within a departmental area of responsibility and raises a question of interpretation, the Cyber Department consults with that department. In addition to the above, prior approval by the State Attorney is required on the following matters: taking action in regard to a publication concerning an elected official, requests in regard to content that relates to or is directed at particularly senior public servants, or in precedent setting cases or case that would involve the expansion of the activities of the Cyber Department.

            The above enforcement mechanism is referred to above and hereinafter as the voluntary enforcement mechanism. It is additional to the statutory enforcement mechanism, and in general (in the appropriate cases established in the Law) precedes it and renders it superfluous when results are achieved.

 

11.       In accordance with the Work Procedure, the Cyber Department considers a request to the internet platform operators only when three cumulative conditions are met:

            A.        The content constitutes a prima facie offense under Israeli law;

            B.        The content violates the internet platform’s term of use and there are additional considerations for reporting or referring it to the internet platform, such as: the actual circulation of the publication, its severity, the date of publication, the “viral” potential of the publication, or how the publication is likely to be interpreted by those who receive it.

            C.        The balancing conducted by the Cyber Department between the values of freedom of expression and access to information on the net as opposed to the values of the constitutional right to privacy, dignity and the reputation of the subject of the publication, as well as the public interest, justifies issuing the report so that the online platform operators will consider whether to remove the publication rather than leave it on the net.

 

12.       It would be appropriate to note at this juncture that, as arises from the arguments of the parties before us, the Work Procedures (some of which also concern enforcement actions under the Prevention of Crimes Law) have not yet been published. I, therefore, find it appropriate to note, already at this stage, that I believe it would be proper that the Work Procedures be brought to light in the manner that, for example, the Attorney General’s Guidelines are published (with the exception of those parts of the Procedures that concern state security or contacts between the Department and security agencies). See: Dalit Ken-Dror Feldman & Niva Elkin-Koren, Transparency in the Digital Environment: Governmental Removal of Illegal Speech via Online Platforms, 25 Hamishpat 25, 42-43 (2020) (Hebrew) (hereinafter: Ken-Dror Fedman & Elkin-Koren).

13.       In their preliminary response, the Respondents stated that the Cyber Department’s activity in the framework of the voluntary enforcement mechanism primarily focuses on reports and requests in regard to publications concerning the activities of terrorist organizations and incitement to violence and terrorism (according to the statement, this represents some 99% of the reports referred to the internet platform operators in 2018). The reports to the internet platform operators in regard to such contents point out that such publications appearing on those platforms amount, prima facie, to offenses of incitement and terror, identification with a terrorist organization, and so forth, and would appear to violate the “community rules” of the platform. The Respondents further note in their preliminary response that it is the estimation of the security agencies that a significant part of the terrorist activity perpetrated in the course of the “knife intifada” beginning in October 2015 was influenced by increasing consumption of social-network contents that incited violence and terror. This led to a need to act to reduce exposure to those publications on internet platforms by reporting to the internet platform operators that they amounted to prima facie criminal offences and deviated from the platform’s Terms of Use.

14.       In addition, it was explained that the Department also operates in the area of harm to minors, in cooperation with the National Child Online Protection Bureau, when it reports instances of violence and crime against children and youths (that amount to prima facie offenses of threats, sexual harassment, and infringement of privacy) on the internet to the internet platform operators. According to what was submitted, the Cyber Department also sends reports in regard to sexual images and videos that constitute prima facie offenses under the Prevention of Sexual Harassment Law, 5758-1988.

15.       Another area in which the Cyber Department operates is the prevention and restriction of harmful advertising that amounts to prima facie offenses of threats, infringement of privacy, or harassment of “certain types” of civil servants, where the advertisements can potentially deter the civil servants from exercising their authority and perform their duties, as part of the defensive shield that the state affords its employees, and when required for the proper functioning of the civil service. The Respondents noted that the Cyber Department acts with “great restraint” in this area, in view of the importance of public accountability of civil servants and the civil service in general. Thus, reports in this area are sent only in “the most extreme cases”, and at times, only after obtaining the consent of the State Attorney and given the existence of a real threat of harm to the public interest and the proper functioning of the civil service (we should note here that in all that relates to harmful publications against judges, the Courts Administration established Procedure 12-2019 of the Administrator of the Courts in the matter of “Work Procedures and Supervision for Treating Harmful Publications on the Internet” (2019), which is intended to promote, in cooperation with the Cyber Department, the removal or restriction of content that amounts to danger, humiliation, debasement, or harm to holders of judicial appointments (contempt of court constitutes an offense under sec. 255 of the Penal Law).

16.       Lastly, the Respondents’ preliminary response noted that the Cyber Department also acts to protect the integrity of Knesset elections. Thus, for example, in the last elections (for the 21^st and 22^nd Knessets), which took place after the Department was established, it was agreed – with the joint consent of the Central Elections Committee and the Attorney General – that reports would be sent to internet platform operators in regard to accounts of computer-generated fictitious users (“bots”), particularly when the identity of the person operating them (if there is one) is unknown, and in regard to fraudulent user accounts or human impersonators. All of the above was carried out in special circumstances and under restrictive conditions established “with great caution”. It is important to note in this regard that in all that concerns voluntary enforcement actions connected to the election process, the Department’s referrals concern technological actions prohibited by the criminal law, and not publications that, by virtue of their content, amount to prima facie offenses, and for the enforcement of restraining orders by virtue of sec. 17B of the Election (Means of Propaganda) Law, 5719-1959.

17.       There would not appear to be any disagreement among the parties as to the dimensions and effectiveness of the activities of the Cyber Department. As noted in the Cyber Department’s reports, upon which the parties rely: in 2016, the Department sent 2,241 reports, regarding which 76.5% of the publications were removed (in whole or in part); in 2017, reports were sent concerning 12,351 publications, regarding which 88% of the publications were removed; in 2018, reports were sent concerning 14,283 publications, of which some 92% of the reported publications were removed; in 2019, 19,606 reports were sent, regarding which some 90% of the reported publications were removed. It should be noted, as the Petitioners argue in their response, that it cannot be inferred from this that the data reflects the number of reports or requests for removal of content, inasmuch as it is possible that each said report comprised more than one link to harmful content (in fact, the 2015 Summary Report notes that, at times, each such report includes tens and even hundreds of links).

            The above data also demonstrate the widening of the phenomenon of prohibited content on the networks.

            As for the identity of the internet platform operators to whom the Respondents send requests – the Cyber Department’s reports show that in 2018, 87% of the reports were sent to Facebook, 8% to Twitter, and the remainder were sent to other internet platform operators (e.g., YouTube, Instagram, and Google).

 

Arguments of the parties in the petition before the Court

18.       This petition was filed after the requests sent by the Petitioners over the course of the last few years to bring about the cessation of the Respondents’ voluntary enforcement mechanism did not succeed. In the framework of the petition, the Petitioners argue that the manner in which the mechanism is employed can potentially infringe the constitutional rights to due process and freedom of expression, while not meeting the conditions of the “Limitations Clause” established in sec. 8 of Basic Law: Human Dignity and Liberty. Their main argument in this regard concerns the lack of express statutory authorization to act in this manner, such that the voluntary enforcement mechanism operates, in their opinion, in breach of fundamental principles of constitutional and administrative law.  In this regard, it is further argued that we are concerned with a mechanism that grants the prosecution (the State Attorney’s Office) broad authority to delineate the bounds of freedom of expression, in that it is the Department that decides that certain content is unlawful, without turning to the courts and without granting a right to be heard.

            In the Petitioners’ view, it is uncontestable that a referral initiated by the Respondents to the internet platform operators for the purpose of removing content is, in fact, governmental activity that requires express statutory authorization, inasmuch as even if the Cyber Department’s action does not amount to a coercive order, every action by the Department constitutes a governmental action that requires authorization. In the absence of such authorization, the Court must order the cessation of the Cyber Department’s activity, even without a showing of the extent of the violation of the protected rights and the activity’s conformance to the other conditions of the Limitations Clause established in sec. 8 of Basic Law: Human Dignity and Liberty.

            In the support of their arguments, the Petitioners referred to two petitions that, in their view, treated of related subjects, as follows:

            The first is AAA 3782/12 Tel Aviv-Jaffa District Commander v. Israel Internet Association [3] (hereinafter: the Israel Internet Association case), which held (per Justice U. Vogelman, President A. Grunis concurring, Justice N. Sohlberg dissenting) that the authority of a police district commissioner to order the closure of a gambling site does not extend to internet providers in regard to an online gambling website that violated sec. 229(a)(1) of the Penal Law (as it then stood), inasmuch as the provision of the said law does not expressly grant statutory authority to the District Commissioner to order third parties (providers of access who are not the website operators) to block an online gambling website.

            The second is LCA 4447/07 Mor v. Barak I.T.T. [1995] International Telecommunications Services Corporation [4] (hereinafter: the Mor case), which held that in the absence of a legislative framework that creates a possibility for ordering a provider of internet access to expose the identity of an anonymous user, it should not be pursued by “judicial legislation” (see, ibid., at p. 688).

19.       As for the possibility that the Cyber Departments authority to act in a “voluntary” manner is granted by virtue of the government’s residual power under sec. 32 of Basic Law: The Government, the Petitioners’ take the view that such authority does not apply to cases in which the exercise of the authority results in a violation of basic rights. In this regard, they referred to HCJ 8600/04 Shimoni v. Prime Minister [5], 687, and HCJ 6824/07 Manaa v. Tax Authority [6] (hereinafter: the Manaa case) (regarding the enforcement authority). In addition, the Petitioners also rejected the possibility that the Cyber Department’s authority is granted by virtue of the auxiliary powers set out in sec. 17(b) of the Interpretation Law, 5741-1981 (hereinafter: the Interpretation Law), which provides: “Any empowerment to do or enforce the doing of something implies the conferment of  auxiliary powers reasonably required therefor”. In the opinion of the Petitioners, that provision cannot support the Respondents, inasmuch as in the framework of the reports that the Department sends, it, in practice, trespasses the boundaries of the courts, which alone, according to the Petitioners, hold the authority to decide, after hearing the parties, whether or not a particular publication constitutes a crime.

20.       In addition to the above, the Petitioners also argue extensively in regard to the manner in which, in their opinion, the voluntary enforcement mechanism violates constitutional basic rights, first and foremost, the right to freedom of expression, which they believe, under the case law of this Court, is broad enough to encompass even harmful expression that rises to the level of incitement to violence or racism. In this regard, they cited HCJ 399/85 Kahana v.  Broadcasting Authority Management Board [7]. In this regard, it is argued that removing and restricting the said publications not only prevents the publisher from expressing his opinion freely, but also harms the other users of the internet online platforms due to restricting their access to the information that has been restricted or removed. They also argue that the voluntary enforcement mechanism is also indicative of a violation of the separation of powers inasmuch as it represents a situation in which the “last word” in all that regards the lawfulness of any publication rests in the hands of an administrative agency or the internet platform operators, and not the court, which is normally supposed to decide such matters. It is further argued that removal of the publication by the internet platform operators (pursuant to a request by the Cyber Department) constitutes a violation of the right of users to due process. Moreover, the Petitioners argue that there are additional defects in the Respondents’ activities, such as: not maintaining an appropriate record in regard to publications for which reports were sent by the Department to internet platform operators.

21.       As opposed to what is argued in the petition, the Respondents are of the opinion that the enforcement procedure that is the subject of the petition is a completely voluntary procedure that should not be seen as a governmental act, per se, and that the discretion in regard to removal or other steps pursuant to the report is entirely in the hands of the internet platform operators alone (inter alia, the Respondents rely in this regard upon HCJ 5185/13 A. v. Great Rabbinical Court [8], which treats of the “Rabbeinu Tam sanctions”[1] (hereinafter: the Rabbeinu Tam Sanctions Affair)). This argument was expanded upon elsewhere by the founder and head of the Cyber Department, Dr. Haim Vismonski, who said as follows:

In practice, an act on the voluntary-consensual level is not an exercise of authority in the sense of an order or an obligatory demand. In practice, it is a request based upon the understanding that the service provider will examine it in accordance with its own terms of use and criteria. (Haim Vismonski, Alternative Enforcement of Expression Offenses in Cyberspace, Law, Society & Culture 691, 725 (2018) (Hebrew).

            The Respondents further point to the unique advantages of the Cyber Department over persons (harmed individuals) or other bodies that might serve as reporters of offenses of the type under discussion in cybernetic space, and the great benefit of the Department’s actions for the public interest. It is argued in this regard that in view of the fact that the Department is a “repeating player” that is proficient in the terms of use of the online platforms, and keeps abreast of changes to those terms from time to time, it enjoys an inherent advantage and reliability in operating the voluntary track. It is, therefore, appropriate that it speak on behalf of other governmental bodies, as well as for plain citizens, who cannot contend on their own with internet platform operators and with those who abuse the platforms or access to them. It is thus argued that the Department serves the public in general. In this regard, the Respondents emphasize that the referrals to internet platform operators are made only when the publications meet the criteria set out in para. 11 above, and when it is appears that the publications conspicuously violate the Terms of Use of the online platforms.

22.       Moreover, the Respondents point out that the Cyber Department has been granted the status of “reliable reporter” by several of those internet platform operators, which gives examination of the Department’s reports precedence over others, and the speed of the response results in reducing the harm (however, according to the Respondents, that does not influence the manner of examining the report submitted to the internet platform). In addition, the Respondents note that due to its nature, in view of the resources and significant knowledge at the disposal of the various governmental organs, it is important to maintain the voluntary enforcement mechanism as a means for which there is currently no alternative for reporting and acting against acts of impersonation, fraud or other criminal offenses perpetrated on the internet. Moreover, due to the location of such criminal acts – generally beyond the borders of the state – and given the limited international judicial authority, in the absence of the voluntary enforcement track, “bad actors” in cyberspace would continue to succeed and their acts would not be subject to enforcement.

23.       Parenthetically, but not of marginal importance, the Respondents argue that the petition should be dismissed for not meeting the threshold requirements for filing a petition due to a substantial factual deficiency and for not joining relevant respondents – the internet platform operators. The Respondents argue that joining those parties could shed light on the independent discretion that they exercise in regard to the Department’s referrals, as well as other subjects comprised by the petition, which will be explained below.

 

Additional developments

24.       Following the hearing of the parties to the petition on Aug. 3, 2020, we ordered the Respondents to supplement their arguments, inter alia, in regard to parallel arrangements in other countries.

25.       The Respondents did so, and in that context, presenting examples from comparative law, they reiterated their arguments that internet platform operators have broad discretion in deciding whether or not to remove publications, and that the Respondents’ authority to act in the framework of the voluntary mechanism is grounded in their power to enforce the rule of law and to protect the public interest. Therefore, in their view, they are permitted to act to bring about the removal of harmful internet publications that appear to violate criminal law, and that this is in accordance with the auxiliary power granted to them as an administrative agency (in our case, in reliance upon sec. 17(b) of the Interpretation Law). The Respondents also repeated their arguments that the reporting of publications overwhelmingly concerns instances of expression that can harm state security, and that the referrals are made subject to the fulfilment of a number of cumulative criteria, demonstrating that the governmental agencies and the State Attorney’s Office will only act in this area in exceptional, extreme circumstances.

26.       Turning to comparative law, it is argued that a number of democratic states and international bodies also address this subject through voluntary enforcement, without any specific, express authority in primary legislation, and that the world now agrees that this is the only effective means for the removal of violating publications from the internet, and that otherwise a situation of total anarchy would emerge, in which everyone would do as he sees fit, while violating local criminal law. In this regard, it is further argued that international arrangements and regulatory guidelines applicable under European law serve as the source of authority for voluntary enforcement by states and various bodies in the European Union in the matter of removing harmful publications from the internet. Examples of this were provided from France, Belgium, Spain, Germany, and Great Britain.

            Thus, for example, in 2016, the European Union signed an arrangement with Facebook, Microsoft, Twitter, and YouTube that outlines the treatment of hate publications by means of the internal reporting mechanisms of the internet platforms. These arrangements were later joined by such companies as Instagram, Snapchat, and TikTok. Pursuant to the arrangement, various bodies in the European Union were recognized as “reliable reporters” – mostly third-sector organizations, and some state agencies. According to the Respondents, this arrangement constitutes a framework for the activity of European states on the voluntary track, although some of them have specific, internal arrangements.

            The Respondents also noted the existence of coercive arrangements in some European states, which do not refer to the possibility of voluntary action even though it takes place, such as the activity of the Swiss Federal Office of Police, for example (in Belgium, there is a governmental agency whose authorities are defined in a cooperation agreement between the federal government and the districts and communities. This agreement grants the governmental agency general authority “to take legal action”).

            As opposed to this, it was noted that the law enforcement agency of the European Union, Europol, acts on the voluntary level by virtue of express authorization in reg. 4(1)(m) of Europol Regulation 2016/794. In France, the Central Office for the Fight against Crime linked to Information Technology and Communication (OCLCTIC) is authorized by sec. 1 of an order pursuant to the counter-terrorism law (loi n° 2004-575 du 21 juin 2004, amended in 2014) to request that search engines or hosting service providers remove content that amounts to certain criminal offenses, such as encouraging terror or pedophilia, without need for a judicial order.

27.       At this point we should note that, prior to the hearing, requests to join the proceedings were filed by Lori Shem Tov and the Movement for Freedom of Information (hereinafter: the Movement), as noted in the heading.

            The request of the Movement (which sought to join as an amicus curiae) is primarily based upon the argument that the question of authority at the focus of the petition should also be examined in light of the fact that, according to the Movement, the Cyber Department operates without transparency, and this is expressed by a lack of documentation of the content of the publications that the Cyber Department seeks to remove (according to the Movement, this can be inferred from the reply it received to its freedom of information request of Nov. 1, 2019). It is argued that this, inter alia, raises a fear that the Respondents’ referrals are “slanted and tainted by discrimination”, or arise, in part, from imprecise translation of the publications concerned. In addition, it is argued that there is a lack of clear guidelines for structuring the Cyber Department’s discretion prior to submitting a report to the internet platform operators. Moreover, the Movement argues that the transparency reports published by the Department are insufficient, and that they should include much more data, such as: the characteristics of the report sent to the operators and the demands therein (whether the agency requests the blocking of content, or, for example, also blocking the user); noting the relationship of the publications to the residents of the state, insofar as possible; clarification of whether the Department acts when the policy rules of the platform are violated, even if the publication does not constitute an offence, and so on.

            Lori Shem Tov (who did not attend the hearing before the Court, although she was invited), noted in her request to join that she wished to join as a petitioner because she claims to have been harmed by the conduct of the Cyber Department, and that she believes that the Department’s actions led to the removal of publications from the website she operates, on the claim that they constituted prima facie offenses against public servants.

28.       After examining the said requests to join, we decided to suffice with examining them without granting the requests to join, inasmuch as, inter alia, we have in any case decided to deny the petition for the reasons that will be set forth below. Moreover, in regard to the said requests to join, including the operators as respondents is absolutely necessary, and the fact that they chose not to do so is a fundamental defect under the circumstances.

 

Discussion and Decision

29.       After examining the parties’ briefs and appended documents, including the Cyber Department’s Work Procedure, and after hearing the arguments of the parties’ attorneys in the hearing and reading the supplementary briefs, I am of the opinion that the petition should be denied, subject to a number of comments for the future that the Respondents should consider, and so I recommend to the President and my colleague.

30.       Before delving into the various aspects that must be decided, I will note fundamental principles, which are no longer very new, in regard to the arena addressed by the petition, in which the Cyber Department operates – the internet. I will not elaborate upon the great blessing bestowed by technology in general, and upon the fundamental changes to the world and humanity following the arrival of online platforms – the narrowing of gaps, the availability of various services to individuals and society, the empowerment of marginalized populations, the enhancement of freedom of information, communication, expression, the press and association by connecting the close to the far, etc. (see the groundbreaking article by Prof. Niva Elkin-Koren, The New Intermediaries in the Virtual Public Forum, 6 Mishpat Umimshal pp. 381-420 (2003) (Hebrew)).

            As opposed to this, the petition before the Court treats of the manner in which the virtual space provided by the internet can serve as fertile ground for poisonous plants, weeds, and rotten fruit (compare: MApp 2065/13 A. v. State of Israel [9]). In this regard, the internet provides malicious actors with a platform for perpetrating crimes by “remote control”, in far wider dissemination than was available in the “old” world prior to the internet revolution, while the possible ill effects of their acts may embrace sectors and communities that were not previously exposed to the harmful activity.

            It would appear that this new sphere of activity therefore also requires means of enforcement that differ from the previously accepted methods, which hold the potential for quick, effective frustration of criminal activity on the internet. However, we should emphasize that this petition does not primarily concern adapting the means to the objective and examining the possibility that granting court orders in appropriate cases (pursuant to the statutory enforcement track) constitutes a less harmful means than the voluntary enforcement mechanism.

            The petition before us concerns the question of the authority to conduct the voluntary activity in the manner and form employed by the Cyber Department. I will, therefore, address these arguments in their order, below, but I will first examine the preliminary arguments raised against the petitioners, which claimed that the petition lacks a sufficient factual foundation, and that the fact that the Petitioners did not join the internet platform operators as respondents requires the dismissal of the petition.

Insufficient Factual Grounds

31.       In my opinion, it was possible to dismiss the petition on the basis of the absence of sufficient factual grounds for the argument that the Department acts without authority.

            In practice, the data submitted with the petition do not testify to the scope of the harm to the values of freedom of speech and access to information (to the extent that they do not amount to a crime). Of course, no one denies that the Cyber Department’s activity may ultimately cause the removal of various criminal publications from the internet. However, even if that is so, it is not at all clear to what extent the Cyber Department’s voluntary enforcement activity leads to a violation of protected rights, including the freedom of speech of the holders of the rights, in regard to publications that are not unlawful. There is no need to elaborate upon the fact that a fundamental condition of the protection granted under Basic Law: Human Dignity and Liberty is that the object of the claimed harm to the constitutional right be a “person” (see sec. 1 of the Basic Law, which speaks of the fundamental rights of the human being in Israel, and the end of sec. 2, which establishes: “There shall be no violation of the life, body or dignity of any person as such. (emphasis added – H.M.)). The reality provided by the internet shows that, at times, in order to prove that a fundamental right was violated (which is at the heart of the Petitioners’ arguments, along with the claim of lack of authority), the petitioner must show that the object of the harm is, indeed, a “person” (and in my view, impersonators of people, like avatars and bots, are excluded).

            In other words, avatars and robots do not enjoy human rights, not to mention that some of those robots are not even operated by humans but by artificial intelligence. In this regard, see: Ryan Abbot, The Reasonable Robot: Artificial Intelligence and the Law (2020); Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305 (2019); Ryan Calo, Artificial Intelligence Policy: A Primer and Roadmap, 51 U.C.D. L. Rev. 399 (2017).

32.       In the matter before us, concerning the area of the internet in which varied and various entities, organized in different configurations, operate (among them, foreign governmental actors, “bot” networks, forged accounts, and impersonators), a minimal evidentiary basis for a claimed violation of freedom of expression is required, particularly in regard to a publication that does not constitute a crime. Note that I do not think that the voluntary enforcement actions of the Cyber Department are incapable of potentially violating the activity of certain individuals, whether in Israel or abroad. However, in the absence of a specific example by the Petitioners that such voluntary enforcement activities, as such, affected any of them (assuming that no prima facie offense was committed), it is difficult to accept the Petitioners’ argument that the entirety of the Cyber Department’s voluntary enforcement activities harm the Petitioners as such, and it is difficult to identify which aspects of the Department’s many activities require express statutory authority (compare: HCJ 6972/07 Akiva Laxer,Adv. v. Minister of Finance [10]). In this sense, the petition is not ripe.

33.       As described above, it appears from the Cyber Department’s data that the overwhelming majority of referrals by the Department to online platform operators concerns publications related to terrorist acts and extreme violence. In my view, the fear expressed in the Petitioners’ arguments that under the cover of this enforcement activity – which almost entirely concerns the protection of national security – the government also contends with political messages protected within the bounds of freedom of expression was not proven. If such were the case, it is clear that express, concrete authorization would be required for the agency’s actions in such circumstances. The problem is that other than the Petitioners’ general arguments of principle, no trace of evidence was brought for the conjecture that publications that pose a challenge to freedom of speech were blocked under the excuse of preventing offenses of incitement to violence or terror. Moreover, in the absence of contradictory evidence, it may well be the case that a large part of the Cyber Department’s activity concerns publications that are not produced by any human subject, but rather a computerized object (robot), or a widespread system of hostile users who seek to promote various unlawful messages.

34.       Another uncertainty, which also cannot be examined in the framework of the present petition due to a lack of adequate data and the fact that the point was not argued by the parties, is the scope of the applicability of Basic Law: Human Dignity and Liberty to expression concerning Israel by users who are not citizens or residents of Israel, or who live in the country or have some other territorial connection to it. In my view, it is highly doubtful if, for example, a publication by a person outside of Israel that calls for violent action against the Israeli embassy in his country, or against another Israeli target there, is indeed a publication that must be examined in accordance with the constitutional balancing required under of Basic Law: Human Dignity and Liberty. This issue was not developed by the parties, although it may be that the reason for the failure to address this issue also derives from the lack of data held by the parties, or the difficulty of identifying the locale and name of a person publishing on the internet.

35.       The above notwithstanding, I did not find that the petition should be dismissed in limine for an insufficiency of factual foundation, but it did make it difficult to issue an order nisi over the entire matter, and contributed to the dismissal of the petition for other reasons that will be presented below.

Failure to join relevant respondents

36.       Another reason for why it may have been correct to dismiss the petition in limine concerns the failure to join relevant respondents. As noted above, the Petitioners (and those requesting to join) refrained from naming the online platform operators as respondents, and it would seem that this is to their detriment. As will be explained, the question of the exercise of discretion by those bodies is of no minor consequence for the questions at the focus of these proceedings. The issue of whether reporting harmful publications is a governmental act is significantly contingent upon how and to what extent the multi-national operators are independent, and whether their discretion relies upon their own local law or upon Israeli law, or only upon their own Terms of Use.

37.       In the course of the hearing, the Petitioners were asked to explain the failure to name the online platform operators as respondents, but they provided no adequate explanation. In my opinion, that was sufficient for dismissing the petition in limine, inasmuch as had the online platform operators been joined as respondents, their arguments could have shed light on some of the Petitioners’ central arguments.

            Adding Respondents at a later stage, after the Petitioners knowingly chose not to do so, is unacceptable (and compare: HCJ 84/82 Histadrut Po’alei Agudat Yisrael v. Minister of Religious Affairs [11]; HCJ 828/90 Likud Faction of the Haifa Municipal Council v. Haifa Municipal Council [12]; and see: Raanan Har-Zahav, Procedure in the High Court of Justice, 34-35 (1991)).

38.       The preliminary defects in the petition are, indeed, severe. However, due to the substantive arguments raised in regard to the activity of the Cyber Department, the importance of the matters raised in the petition, their consequences, and their raising a matter of first impression, I will address the Petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in midair.

            I will, therefore, address the issues from first to last.

The question of authority

39.       The main argument raised by this petition concerns the constitutionality of the voluntary enforcement policy in the absence of express statutory authority, in the opinion of the Petitioners. This argument derives from the principle of rule of law, which establishes (inter alia) that a governmental agency must act on the basis of statutory norms (see: HCJ 1/49 Bejarano v. Police Minister [13]; LCrimA 10141/09 Ben Haim v. State of Israel [14]). It is argued that the Cyber Department’s actions to remove what it deems unlawful forms of expression by means of reporting them to the online platform operators constitute governmental enforcement that is prohibited in the absence of express statutory authorization, in view of the rule-of-law principle and the principle of administrative legality.

            The Petitioners also argued that this situation at least appears to contravene the normal criminal-procedure distinction between the investigative authority and the prosecution. Thus, for example, sec. 59 of the Criminal Procedure Law [New Version], 5742-1982, authorizes the police to conduct investigations, while sec. 60 of the said law instructs the police to deliver the investigative material to the duly authorized prosecutor. In the present case, it is argued that the examination is conducted by the Cyber Department (in a manner somewhat akin to the police authority to initiate an investigation if it becomes aware of a crime, pursuant to the said sec. 59), and argued that it is also the “prosecutor”, i.e., the body that applies to the relevant private body (the online platform operators) to exercise its discretion whether or not to remove the publication.

40.       As described above, the Government Respondents countered in this regard that it is difficult to view the Cyber Department’s actions as constituting an exercise of governmental power, inasmuch as the online platform operators exercise exclusive discretion in the matter, whereas its actions are limited to a voluntary application to the online platform operators, which therefore lacks the force of an administrative act of consequence.

41.       On the face of it, the Respondents would appear to be correct that in the absence of a coercive governmental act, the question of authority does not generally arise. However, it seems to me that the Respondents erred in categorizing the Cyber Department’s activity and its initiation of referrals as acts that lack any governmental force, and their opinion that, as such, they do not fall within the purview of the principle of administrative legality, and do not require any statutory authorization. In my opinion, the Respondents were imprecise in sufficing with laconically citing the fact that we are concerned with a voluntary act for which the discretion on enforcement is entirely left to an external (private) body. Nevertheless, I am of the opinion that the Cyber Department’s activity does, at present, have adequate authorization.

            I will clarify this point.

42.       To identify what constitutes a “governmental act” that is subject to the principles of administrative law, it not enough that the act in question is seemingly performed “voluntarily”, or that it, itself, lacks any operative force. Indeed, as I will explain, an examination of the very many functions fulfilled by the public administration reveals that many of them are not addressed in specific legislation, yet there is no question that they are, nevertheless, at the heart of the role that a properly functioning state is required to fulfil, and therefore have a statutory basis.

In his book Administrative Authority, vol. I, 419 (2^nd expanded ed., 2010) (Hebrew) (hereinafter: Zamir), Prof. Zamir describes this as follows:

In practice, the scope of authority granted to the government is far broader than the scope of the specific authorities that the statutes expressly grant it. Many of the functions imposed upon the government, among them basic functions of any government, and the authority required to carry them out, are not mentioned at all in the law. This is dictated by reality. The legislature cannot, and is therefore not asked, to arrange all of the all-embracing areas of governmental activity, and expressly establish the necessary authority for each individual area. The result is that the government conducts a wide-ranging variety activity that lacks an express foothold in the law. Such are, for example, almost all of the activities of the Ministry of Foreign Affairs, the Ministry of Construction and Housing, the Ministry of Immigrant Absorption, and the Ministry of Culture. Other ministries largely act on the basis of laws, but even among those, you hardly find a ministry whose functions are not partly – whether to a small or large extent – performed without express support in the law. Here are but a few of the many examples: The Government Press Office, professional training institutions, tourist information offices, research institutes, importing essential food items, The Institute of Advanced Judicial Studies. Sometimes, such activity is ancillary, so to speak, to some other activity, as if it were an auxiliary function of an activity authorized by law, but not infrequently, it stands alone, apparently without any supporting law. How does this situation conform with the principle of administrative legality? The answer is provided by sec. 32 of Basic Law: The Government. This section establishes: “The Government is authorized to perform in the name of the State, subject to all laws, any act, which is not assigned by law to another authority” (ibid., pp. 418-419; emphasis added – H.M.).

            And see: HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [15], 841; HCJ 5128/94 Federman v. Minister of Police [16], 651, per President Shamgar, before an expanded panel (hereinafter: the Federman case); HCJ 8600/04 Chair of the Hof Azza Regional Council v. Prime Minister [17], 682-683; HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [18], para. 6 of the opinion of Deputy President M. Cheshin; and also see: Margit Cohn, General Powers of the Executive Branch, (2002) (Hebrew) (hereinafter: Cohn).

            We thus see that in order to evaluate the character and nature of the administrative activity before us, we must review some of the case law that constitutes the foundation of our constitutional and administrative system.

43.       In categorizing the various administrative authorities, Prof. Hans Klinghoffer included the existence of a “disguised administrative act”. Such activity can be defined as a governmental act performed under the cloak of a non-coercive governmental act, where in fact, the substance of the act – or at least the way it is understood by those to whom it is addressed – is a governmental act of coercive significance, or as Klinghoffer expresses it:

A unique type of unclear act is the disguised act. When an agency does not see a legal path for achieving its desired objective, it will, at times, try to present the action in a disguised manner in order to increase the chances for it to be interpreted as a lawful act. Our judicature is unwilling to accept such trickery (see: Hans Klinghoffer, Administrative Law, pp. 109-111 (1957) (Hebrew), and in general on the theory of administrative acts, pp. 82-117).

            An example of this can be found in HCJ 144/50 Sheib v. Minister of Defence [19] (hereinafter: the Sheib case). In that famous case, the Director of the Department of Education in the Ministry of Education demanded that the administration of a school not employ the petitioner due to the opposition of the (then) Prime Minister and Minister of Defense (David Ben Gurion) (due to his position in regard to the petitioner’s political activity). What is relevant to the matter before us is one of the arguments made by the respondents in that case, who admitted that the order not to employ the petitioner was not based upon express legislation, while pointing out that this act was not obligatory, but rather only a (“voluntary”) request that the school to which it was sent could have declined.

            The Court refused to accept the position of the respondents, stating:

As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only “requested” them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a “request” such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident, schools would tend to yield to a “request” of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice – that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. In this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools (ibid., p. 419 [para. 9 of the opinion of Justice Witkon] (emphasis added – H.M.)).

            It would appear from the above that had it concerned a non-obligatory request, “it would have been difficult to find any fault with his approach”. However, it is clear from the justice’s statement (in the section in italics) that even if it were a “voluntary” request, as long as the addressee will “tend” to “yield” and comply with the request, such a request can be viewed as a governmental act (compare: the Rabbeinu Tam Sanctions Affair in para. 1 of the opinion of President M. Naor, and para. 5 of the opinion of Justice I. Amit).

44.       However, it is important to make it clear that the case before us is different for several reasons:

            First, since not even initial evidentiary grounds were presented to rebut the presumption of administrative regularity, it can be assumed that the Cyber Department’s referrals to online platform operators are, indeed, conducted in accordance with the Department’s understanding that this only constitutes reporting that does not involve any element of coercion of the online platform operators (in this regard, see: Daphne Barak-Erez, Citizen, Subject, Consumer – Law and Government in a Changing State (2012) (Hebrew)).

            I would also note in this regard what is stated in sec. 6 of the Cyber Department’s Work Procedure, which instructs as follows:

In all that regards referrals on the voluntary level, no demand should be presented to the online platform for the removal of content, restriction of access to it, and so forth (emphasis added – H.M.).

            Second, the “relationship” before us is, indeed, distinguishable to no small degree from the example presented above (the Sheib case). In the present case, the online platform operators are very powerful multi-national entities that appear to act independently, that exercise their own independent discretion, and that decide how to act under the circumstances of the matter. Therefore, the voluntariness involved in the Department’s referral, and the manner of the exercise of independent discretion of those entities is qualitatively different from what occurred in the Sheib case.

45.       Nevertheless, I cannot accept the Respondents’ position on this point in its entirety. In my view, the referrals to the online platform operators should be seen as a type of governmental act. My position, which I will explain below, is that the interaction among the state, the online platform operators, and the end users can be categorized as a unique relationship in which the “geometric place” of the state is on one of the sides of a triangle connecting the above three entities, and in this framework, the state has no inconsiderable influence (see: Balkin, Triangle).

            For convenience, I have attached Chart 1 – the diagram that Prof. Balkin presented in his article, and Chart 2, which simplifies it for our needs. The diagrams map the relationship triangle among the end user, the platform operators, and the governmental authorities, and describe the relationship and power structure among these entities in regard to “classic” regulation in which the state acts directly opposite the individual in matters of freedom of expression, and the “new” regulation that shapes the relationship between the state and the online networks, where the state seeks to encourage the platforms to conduct their own supervision of unlawful expression by private governance. This has developed over the years, and shapes the relationship between the users of the platform and the supervision of expression and information by the former (what I noted as the Terms of Use and the “community rules”).

 

 

 

 

Diagram 1:

(See: Balkin, Triangle, p. 2014).

Diagram 2:

 

 

 

 

 

           

In my opinion, in this situation in which there is a possibility that the voluntary referrals of the Cyber Department are a trigger for the “enforcement” actions of the online platform operators (as noted, we do not have any data in this regard), and that the Department’s referrals may influence the discretion of the online platform operators, there is a need for some statutory authorization for the said cooperation.

            I will explain this in detail below.

“Inverse Regulation” and the Activity of the Cyber Department

46.       Normally, it is the state that regulates and directs the conduct of the individuals and entities that exist within it. The accepted means for this are legally operative norms (like primary and secondary legislation). Frequently, the state also chooses to regulate markets and various spheres of activity of “private players” by establishing rules that apply only to those markets, direct the activity of the parties that operate within them, and even conducts supervision and enforcement over such activity. However, at times, the state permits an organizing body to police itself, subject to the permission of the governmental authority (as is the case, for example, in regard to the Tel Aviv Stock Exchange). This practice, in its various aspects, is one of the meanings of the concept “regulation”, which has significantly developed over the last years (on regulation as a separate conceptual framework in Israeli law, see recently: Neta Ziv, Judicial Review meets Regulation: A Preliminary Conceptual Mapping, Elyakim Rubinstein Volume, 1125, 1130-1136 (2021) (Hebrew) (hereinafter: Neta Ziv, Regulation), and also see: Cass R. Sunstein, After the Rights Revolution – Reconceiving the Regulatory State (1990); Ayelet Hochman, Alon Jasper & Dan Largman, Talking about Regulation: The Term “Regulation” and its Role in Israeli Law, The Governance of Regulation: Law and Policy Law, Society and Culture, Yishai Blank, Roy Kreitner & David Levi-Faur (eds.), 47, 48 (2016) Hebrew); Sharon Yadin, Regulation: Administrative Law in the Age of Regulatory Contracts, 21-28 (2016) (Hebrew) (hereinafter: Yadin).

            By creating rules that are designed ad hoc for a sphere of activity, regulation that sought to direct the players in a market sphere by means of a system of rules intended to direct the parties subject to it in a “vertical manner” gained prominence. In this manner, rules were created for directing such markets as health, commerce, savings, insurance, banking, and energy. These rules, which include primary legislation, and at times, directives and orders issued by the regulatory authority in the framework of regulations, are often accompanied by various mechanisms for supervision and post facto enforcement of the applicable arrangements. As Prof. Neta Ziv points out, the move to regulation reflects a change in the role of the executive branch, primarily in distributing new functions and powers between the state and the non-state arena, where, in general, the regulatory rules define the means for the government’s exercise of power in regard to the supervised body (individual or corporate), and employ language, terminology and internal logic that can be identified as a distinct field of knowledge (see: Neta Ziv, Regulation, p. 1128).

            The regulatory model described above reflects regulation in its primary sense, known as “command and control”, which is the classic model in which the moderator is positioned “above” the players in a particular sector, directing their actions, and enforcing post facto the rules that it or the legislature established (for definitions of the accepted model of “command and control”, see: Neta Ziv, Regulation, p. 1142).

            However, over the years, a variety of more sophisticated models of regulation developed, which apply “softer” methods of enforcement. This is the “new regulation”. Thus, for example, beginning in the last century, we see the development of self-regulation in which the regulator “recommends” that the “market players” adopt a general policy as a (non-obligatory) condition for the proper administration of the particular market (on “the new regulation”, see: Yadin, pp. 21-32; Sharon Yadin, Miscommunication: Between Public Interest and Private Interest in the Regulation of Channel 10, 8 Haifa Law Review (Din Udvarim) 391, 409-410 (2015); Neta Ziv, Regulation, pp. 1142-1145).

47.       Another development is expressed in the ascension of the regulatory contract, which grounds the element of governmental direction upon an agreement between the regulator and the supervised entity. The framework of the regulatory contract represents a move from the “vertical” model to a “horizontal” model in which the state and the supervised entity negotiate the conditions that will apply between the parties, and the parties form a contractual, or quasi-contractual relationship, as expressed by my colleague President E. Hayut in para. 2 of her opinion in HCJ 4374/15 Movement for Quality Government v. Prime Minister [20], (hereinafter: the Gas Outline case):

This combination of regulatory provisions and obligations of commercial corporations in the area addressed by those provisions bears clear characteristics of a “regulatory contract”, which is a relatively new legal phenomenon, first found in the United States in the nineteen-nineties, as a tool that bases regulatory provisions in various fields on contractual relations. One of the salient characteristics of the regulatory contract, as opposed to other governmental contracts, is the identity of the parties to the contract. “A regulatory contract is made between an administrative agency, in its role as regulator, and a private corporation. [..] The legal framework of the regulatory contract is largely the result of the challenges faced by the authorities in the modern age due to the complexity of the regulation required in various fields, including, and perhaps primarily, in developed, free markets that intensify the need for supervisory regulation. Against this background, new models of administrative regulation have developed, among them regulation based upon cooperation with private entities that is grounded in contracts. One of the advantages inherent to such a regulatory model is the achieving of voluntary cooperation by the supervised entities which, on their part, may derive benefit from activity that is coordinated with the supervising body, as opposed to coercive provisions that are drafted and established unilaterally by it. However, the regulatory contract model raises many questions from both the legal and public aspects that may have consequences, inter alia, on the scope of judicial review applicable to such a regulatory model… (and see: Yadin, p. 38; emphasis added – H.M.).

 

48.       The case before us is characterized by relationships between the state and private entities (primarily multi-national corporate giants) that do not match any of the distinct cases listed above and do not fall within the scope of those regulatory schemes. It is therefore clear that the agency’s referrals to the online platform operators do not reflect a “command and control” relationship. The online platform operators are not subject to rigid regulation, and the Terms of Use and their “community rules” are, it would appear, independently established by those operators.

            The legal literature recognizes a regulatory phenomenon known as “voluntary regulation”, in which the market actor establishes its own manner of operation (see: Yair Amichai-Hamburger & Oren Perez, Environmental Self-Management: Effectiveness, Organizational Change, and Lessons for the Environmental Regulation System, 25 Bar Ilan Law Rev. 633 (2009) (Hebrew); and see Vismonski, who categorizes the relationship between the state and the operators as “contractual”, Vismonski, Alternative Enforcement, pp. 716-717). Nevertheless, in my opinion, what we have here is not a “voluntary regulation” model in the full sense. Although the online platform operators act independently in defining the rules that govern the relationship between them and the users, when the Respondents draw their attention to breaches of local law, their Terms of Use and “community rules”, it would seem that in the specific area of activity that concerns us (social networks and the area of network content), we cannot yet rule out the possible influence of such a referral on the online platform operators and their fear of the authority, which can act to limit their actions, whether by primary legislation or by administrative means (see and compare: Hannah Bloch-Wehba, Global Platform Governance: Private Power in the Shadow of the Global State, 72 SMU L. Rev. 27, 79 (2019) (hereinafter: Bloch-Wehba); Ken-Dror Fedman & Elkin-Koren, pp. 31-32; Balkin, Triangle, p. 2020).

49.       As we see, the case before us represents a new model in which law enforcement and regulation of the relationship among the various market players – the state, the social network participants (the authors of the various publications and the web surfers), and the online platform operators themselves – are carried out with the state acting as a reporter that refers the apparent breach for the examination and decision of the online platform operators. This framework, which might be called “inverse regulation” – inasmuch as the final decision rests in the hands of the online platform operators – neither increases nor lessens the problems that frequently arise in other regulatory models (such as violating personal freedom and the autonomy of the individuals subject to “command and control” regulation, and the problem of restricting the discretion of the authority in the framework of a regulatory contract). However, the “inverse regulation” model raises a fundamental question that derives from the aforementioned question of authority – given that we are concerned with non-obligatory, “voluntary” referrals by the government, can it be said that we are concerned with regulation? In other words, is the Cyber Department actually acting under a “soft” regulatory model when it initiates referrals to the online platform operators, and should such referrals be deemed governmental actions that justify the conferral of express legislative authority, or not?

            The theoretical position as to the nature of the “regulation” (to the extent that it exists under the circumstances) can be of consequence for the legal analysis of the legality of the administration’s actions.

50.       As described above, in situations that do not concern a “disguised governmental act” that is actually coercive, which must be voided for a lack of legal authority, it is entirely possible that a completely voluntary act whose result entirely depends upon the independent exercise of discretion by the body referred to does not require specific, express authorization by law, and thus, for example, the residual authority granted to the government under sec. 32 of Basic Law: The Government would therefore be sufficient. For example, under this approach the Cyber Department’s referrals to the online platform operators are not essentially different from requests sent by Israeli security and diplomatic actors to their foreign counterparts asking, for example, that they thwart plans by hostile foreign actors seeking to harm the State of Israel abroad or at home (on the subject of acting by virtue of the general authority granted under sec. 32 of Basic Law: The Government, or sec. 17 of the Interpretation Law, see Shimon Shetreet, The Government: The Executive Branch – Commentary on Section 18 of Basic Law: The Government, (2018) (Hebrew) (hereinafter: Shetreet).

            As opposed to this, where we are concerned with a regulatory act that can interfere with the freedom of action of players in the marketplace or restrict it, it may be assumed that, in this regard, the state must act in accordance with the principles of administrative law (see: Neta Ziv, Regulation, p. 1139).

51.       To my understanding, as long as it has not been proven otherwise (and as noted, this petition lacks respondents essential to examining the issues in dispute), the framework in which the Cyber Department operates does have a some potential for influencing and directing the actions of players in the marketplace and for creating an “inverse regulation” environment. This is so because, in my view, as opposed to the way that the Government Respondents seek to present themselves, a referral by a private individual to those online platform operators cannot be compared to a referral by a governmental agency that appears before the online platform operators as a “repeating player” who may also act against them in other ways. My position is, therefore, that the very possibility that the “sword of coercive regulation”, which the government, or someone on its behalf can draw against the online platforms if their operators frequently fail to accede to the referrals is sufficient to show that we are concerned with a governmental act that requires some legislative authorization. Indeed, there is the possibility that the state will seek to establish rigid normative rules to require the online platform operators to comply with the Respondent’s referrals or be exposed to various steps and sanctions, and that constitutes a lever for applying pressure that raises the fear that – at least potentially – we are not concerned with cooperation between the state and the private commercial entities that is completely voluntary (for examples of attempts at regulation to restrict publications on online platforms, see: Defamation (Prohibition) (Amendment – Disclosing the Name of a Tortfeasor) Bill, 5770-2010; Defamation (Prohibition) (Amendment – Prohibiting Defamation on the Internet) Bill, 5775-2015; Defamation (Prohibition) (Amendment – Correcting Defamation on the Internet) Bill, 5781-2020). As opposed to this, see the Copyright (Amendment No. 5) Law, 5779-2019 (which was enacted pursuant to comments by the Court in CA 9183/09 Football Association Premier League Ltd. v. Anon. [21] (hereinafter: the Premier League case)).

            In this regard, I will quote Dalit Ken-Dror Feldman & Niva Elkin-Koren:

The platforms that are commercial companies exposed to the exercise of governmental power are subject to a threat that if they do not cooperate with the alternative enforcement arrangement, they may be required to perform enforcement actions due to changes in the law, which would leave them less flexibility and discretion (Ken-Dror Feldman & Elkin-Koren, p. 38).

In this regard, also see the statement of the Commission for Establishing Means for protecting the Public and Officeholders in the Civil Service against Harmful Activity and Publications as well as Bullying on the Internet – Report (2020) (hereinafter: the Arbel Commission Report), which established as follows:

It should be borne in mind that the expression “voluntary” regulation, which is sometimes employed to describe referrals by the authority to request the removal of content, is not entirely appropriate to the situation it purports to describe. Indeed, the various platforms reserve the right to refuse the state’s request to remove content, however, there is no doubt that a state request bears significant weight, much greater than that of a referral by a citizen. This being so, use of this tool should be reserved for exceptional cases. The threshold requirement of the existence of a criminal offense appears to be an appropriate balance point [emphasis added – H.M.].

            Also see the statement by the head of the Cyber Department, Dr. Haim Vismonski, who is of the opinion that:

The distinction between voluntarily agreed defensive actions and actions pursuant to a coercive provision is not a dichotomy […] The service providers, on their part, fear legislative changes that would broaden the state’s authority to impose coercive provisions upon them that would intervene in the manner they regulate the content that they publish. The said fear encourages the providers to increase their agreed, voluntary cooperation with the states […] This somewhat undermines the voluntary basis, and it is possible to present the move as a coercive one by the state, even if somewhat covert (Vismonski, Alternative Enforcement, pp. 722-723).

52.       This is the place to explain that, in the framework of this petition, since the online platform operators were not named as respondents, this possibility is but a theoretical fear that we cannot properly examine. It is indeed possible that in examining referrals regarding breaches of the “community rules” and the Terms of Use, those powerful multinational corporations that operate the said platforms act without fear of the individual who may be harmed or of the administrative agency (for a view of online platform operators as acting independently in regard to governmental referrals, see: Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan L. Rev. 99, 154 (2018).

53.       The conclusion to be drawn from the above is that although not even preliminary evidence was presented to show any defect in the discretion exercised by the Cyber Department, the fact that it transfers – if only temporarily – the decision in the matter to the online platform operators, which are civil bodies that seek to maintain good relations with the authority, raises the fear that, in practice, the Department’s referrals influence the discretion of those operators. Therefore, in my opinion, the Cyber Departments actions are of a governmental nature that requires authority, even if of a general sort.

            If we add to all the above the apparently uncontested fact that restricting or removing publications by the online platform operators may ultimately lead to limiting the fundamental rights of the publisher (insofar as a human entity is concerned), primary among them the right to freedom of expression, it is clear that the Department’s activities, even in the framework of “inverse” regulation, can influence, even if indirectly, the restriction of those protected fundamental rights.

54.       In conclusion, in their preliminary response, the Respondents discussed at length the view that it should be recognized that: “The activity of the Cyber Department in the voluntary track of referring reports of prima facie offenses that breach the Terms of Use established by the companies themselves does not involve the exercise of governmental authority” [emphasis added – H.M.]. It would seem that the Respondents’ intention was to say that if, indeed, the exercise of governmental authority is not concerned, then there is no need for specific legislative authority and the publication of the rules under which the agency operates.

            As stated, I hold a different view, and I therefore expanded upon identifying the Department’s conduct in the voluntary enforcement track as an exercise of some power in the regulatory field.

            There is an additional reason for this. The current scholarship on regulatory theory sees “the change in the power paradigm”, which we pointed out, as one of the primary adjustments to which administrative law must adapt in the modern age. If we take the case before us as an example, the rise of online platforms that provide convenient, available and effective infrastructure for disseminating messages and content of every type, creates a change in the balance of power, in which a limited number of private, multinational actors hold tremendous power to administer the “marketplace” in all that regards the exchange of opinions and messages, while any person with a keyboard (or touchscreen) can disseminate harmful, inciting and violent messages, as well as terror, while using a fabricated or fictional identity, and thus create a “market failure” and significant problems of enforcement (see and compare: Terry Flew, Fiona Martin & Nicolas Suzor, Internet Regulation as Media Policy: Rethinking the Question of Digital Communication Platform Governance 10 J. Digital Media Pol. 33 (2019); Bloch-Wehba, pp. 71-78).

55.       In view of the rise of various factors operating in the markets in previously non-existent forms and methods, Dr. Yuval Roitman is of the opinion that it would be appropriate “to distinguish between circumstances in which there is a need for restraining governmental power that is abused, and circumstances in which judicial review should encourage the exercise of governmental power, inasmuch as it is the state’s omission that is the flaw,” Yuval Roitman, Administrative Law in the Regulatory State, Mishpat Umimshal 219, 234 (2017) (Hebrew) (hereinafter: Roitman) [emphasis added – H.M.].

            In this regard, attention must also be paid to the consequences of the actions of entities operating in the marketplace (in our case, the online platform operators) as they relate to the general public. Prof. Neta Ziv gives the example of the view of Justice I. Zamir in HCJ 7721/96 Israeli Insurance Adjusters Association v. Supervisor of Insurance [22], who was of the opinion that in view of the excess power of insurance companies at the time, a “supra-arrangement” should be established to better protect the insured public. Therefore, in addition to the fact that we are faced with a special case of “inverse” regulation in which the regulatory authority (apparently) subjugates itself to the decisions of the market players, there is no doubt that there is a need for an agreed arrangement in regard to the behavior of the main players and the users of the social networks, and therefore, the activity of the Department on the voluntary enforcement track fulfils its obligation to act for the prevention of criminal offenses in a speedy and effective manner.

56.       What has been said so far shows, however, that the principle of administrative legality also requires that there be formal authorization in the case before us to facilitate the activity of the Cyber Department. As we see, its activity in the voluntary enforcement track may constitute a form of administrative act of operative effect. Therefore, in accordance with the fundamental principles of administrative law, in order to establish that the activities of the Cyber Department are lawful, authority, even if only general, must be found in the law.

            I will address this immediately, below.

 

The activity of the Cyber Department by virtue of the government’s residual authority

57.       The courts are not infrequently called upon to respond to situations in which it is claimed that an administrative authority is not performing its duty in accordance with the law. The touchstone established in the case law concerns the complete “shirking” of this duty by the authority, or its unreasonable refraining to carry out its duty (see: HCJ 6579/99 Filber v. State of Israel [23]; Roitman, pp. 265-266). This is another exceptional aspect of the present petition. In the matter before us, we are asked to address arguments of alleged “over-enforcement” by the Respondents. If the general position of the Court is that it is not its role to “take the place of the authorized agency and establish a law-enforcement plan for it” (HCJ 551/99 Shekem. v. Director of Customs [24]), then in the present petition, we are asked to examine whether the activity framework of the Department conforms to the authorities it has been granted.

            Before entering main hall, we should present some additional background data while still in the corridor, as I shall now do below.

58.       The internet, for all its advantages and disadvantages, as noted above, created a space in which access to the net and the activity there is, as my colleague Justice Sohlberg stated in the Israel Internet Association case:

… all over the world, but its existence is “nowhere” (para. 22 of his opinion).

            Moreover, in this situation, again quoting my colleague:

Offenders against the law adapt to progress more rapidly than its enforcers […] The former have no restraints; the latter do.

            In this situation, criminal and civil law do not, at present, provide a sufficient response to the offenses and torts perpetrated by means of the internet, and there are, therefore, those who are of the opinion that in view of the virtual nature of the said space, the laws of space, time and state should not be applied to the internet (see: Yuval Karniel and Haim Vismonski, Freedom of Expression, Pornography, and Community in the Internet, 23 (1) Bar Ilan Studies in Law 259 (2006) (Hebrew); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, Michael Birnhack and Niva Elkin-Koren, eds., 207 (2011) (Hebrew); and see: Vismonski, Alternative Enforcement, pp. 692-704).

            Some solutions for these problems have recently been offered in the literature by means of using cloud technology (see: Yochai Benkler, Degrees of Freedom, Dimensions of Power, 145 Daedalus 18 (2016)), and in our case law.

            In a judgment handed down three years ago by my colleague President E. Hayut (Justice A. Baron concurring) and myself in LCA 5860/16 Facebook Inc. v. Ben Hamu [25] (hereinafter: the Facebook case), the Court held that Facebook’s community rules constituted an adhesion contract between Facebook and the network users, which opened many possibilities for enforcement (and see and compare: LCA 1239/19 Shaul v. Nayadli Communications [26]).

            However, the advancement of case law, which by its very nature is “bottom up” (from the trial court to the Supreme Court), cannot suffice to stop the “bad actors” operating on the net.

            In addition, the decentralized nature of the production and virtual distribution on the internet makes it very difficult to carry out enforcement by the traditional means of bringing the offender to trial, not to mention that anonymity on the internet makes it difficult to identify offenders and tortfeasors (see, e.g., the Mor case). Another challenge for enforcement is the global nature of the network. Thus, for example, various legal issues arise concerning the application of local law to alleged offenders where it is unclear whether they are citizens or residents, or operate within the territory of the state. Moreover, due to the global character of the internet, it is possible that expression that is deemed potentially criminal in one legal system does not constitute prohibited speech in another (see: Ken-Dror Fedman & Elkin-Koren, p. 35). In addition, in the United States, for example, certain online platform operators enjoy immunity (see: Madeline Byrd and Katherine J. Strandburg, CDA 230 for a Smart Internet, 88 Fordham L. Rev. 405 (2019)), which may apply extraterritorially.

            Thus, the voluntary enforcement mechanism was created to provide answers to most of these problems.

            What, then, is the source of authority for the Cyber Department’s activity in the framework of this enforcement mechanism?

59.       The primary source of authority is to be found in the residual authority granted to the government pursuant to sec. 32 of Basic Law: The Government.

            As intimated above, the scope of authority granted to the government is far wider than the individual authorities that the legislature granted expressly, such that by its nature, the government is daily involved in “all embracing” activities that lack any express, specific foothold in the law (see: Zamir, p. 419). This range of activities is conducted, as noted, by virtue of the doctrine of residual power entrenched in sec. 32 of Basic Law: The Government. The direct meaning of this provision is that, in the absence of another provision granting authority to some other agency, the government is authorized to act in the name of the state.

            The substance of the doctrine of governmental residual power derives from the tremendous scope of administrative activity, the surprising nature of developments in daily life, as well as the recognition of the fact that legislation cannot keep up with the pace of technological advances (see: Daphne Barak-Erez, Administrative Law, vol. 1, 139 (2010) (hereinafter: Barak-Erez); Shetreet, pp. 561-562). I addressed this in the Premier League case, where I stated as follows:

It is well known that technology generally precedes the law. In such cases, the legislature and the courts are called upon to pour the essence of the existing, good and grounded principles into new legal vessels (as though they were aged wine that improves with time and only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009).

            My colleague Justice N. Sohlberg added to this in the Israel Internet Association case in stating:

As we know, the law slowly staggers behind the world’s innovations, and legislation cannot keep up with the pace of scientific progress and its applications.

60.       The force and incidence of the residual power have been addressed in a number of judgments by this Court. Thus, for example, in the Gas Outline case, the Court held that:

The term “residual power” is not a magic word and is not a key to every gate. It is examined after examining the direct powers and should not be ambiguous (para. 142 of the opinion of Justice E. Rubinstein).

            In that case, there was a disagreement among the members of the panel, inter alia, on the question whether establishing an outline for treating an essential natural resource found in large quantities on the state’s coast exceeds the government’s residual power and requires that the outline be established in specific primary legislation, inter alia, because it constitutes a primary arrangement. The majority held that the arrangement did not require express primary legislation (see: the Gas Outline case, para. 11 of the opinion of my colleague Justice E. Hayut; paras. 10-14 of the opinion of Justice U. Vogelman; paras. 50-62 of the opinion of Justice N. Sohlberg. On the dissenting opinion, which was of the view that the outline required particular primary legislation, see: paras. 127-143 of the opinion of Justice E. Rubinstein; and paras. 3-13 of the opinion of Justice S. Joubran. And see: HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [27], para. 10 of the opinion of Deputy President M. Cheshin).

            It has further been held that the government cannot act by virtue of its residual power in order to violate entrenched or implied basic rights granted to individuals by Basic Laws. Thus, for example, in HCJ 5100/94 Public Committee against Torture v. State of Israel [28], which treated of the authority of the General Security Service[2] to conduct interrogations in general, and particularly the use of special interrogation methods that included employing physical means, President Barak held: “The ‘residual’ power of the government is not a source of authority that infringes the liberty of the individual. The residual powers of the government authorize it to act whenever there is an ‘administrative vacuum’ […] There is no such ‘administrative vacuum’ in this case, as it is ‘filled’ by the principle of individual freedom. Infringing this principle requires a specific provision”.

            However, it is important to note that until the enactment of the General Security Service Law, 5762-2002, it appeared that the general authority of the General Security Service to act in its sphere of activity derived from the residual power doctrine (see: Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity, p. 41 (1987)), and the authorities of the Institute for Intelligence and Special Operations [the “Mossad” – ed.] rely upon that source of authority to this day).

61.       Specifically, in the matter of infringing freedom of expression, it was previously held in the Federman case that this vested right cannot be infringed by virtue of the general authority under the residual principle:

There are actions that are not within the scope and power of the government because exercising them without legal authority is contrary to fundamental normative concepts that derive from the nature of our regime. So it is in regard to basic rights that are part of our positive law, whether it has or has not yet been included in a Basic Law. Thus, for example, the government does not have the authority to close a newspaper on the basis of an administrative order if there is no express legal provision that addresses such a matter, and even were there not a Basic Law that defines freedom of speech. Such an act would be contrary to our fundamental concepts regarding human liberty inherent to our regime, which can only be limited by statute […] therefore, the basic right to freedom of speech, which is part of our positive law, creates a restriction that ties the executive’s hands and does not permit it to deviate, without legal authority, from the prohibition upon infringing a freedom it grants. (ibid., p. 652; emphasis added – H.M.; and see Zamir, pp. 421-423).

            Indeed, these restrictions upon the residual power of the government were intended to ensure that the broad general authority granted under this provision of Basic Law: The Government will not completely erode the principle of administrative legality, and does not replace the constitutional values grounding the system (see: Barak-Erez, pp. 139-143).

62.       The answer that should be given to this question is negative in the circumstances. At present, and in accordance with the evidentiary foundation presented in the petition, there are no grounds for finding that the Cyber Department’s activity is unconstitutional. In my opinion, while we cannot deny the possibility that the Cyber Department’s activity has operative force, in that it initiates a process that may result in a real act of removing publications or preventing access, I do not believe that there is a violation of basic rights, in the usual sense,  in most of the areas in which the department acts (as for the exceptional cases, see my comments in para 73(b), below).

            I will now explain in detail.

63.       What is an infringement of a constitutional right? A review of the case law of this Court reveals that the question of the infringement of the constitutional right has not raised any real problems to date. For example, in LCA 3145/99 Bank Leumi v. Hazzan [29], 398, it was held that infringement concerns the absence of ability to realize the full scope of the constitutional right (and see: Aharon Barak, The Constitutional Right and its Violation: The Three-Step Theory, 19 Mishpat Umimshal 119 (2018) (Hebrew) (hereinafter: Barak, The Constitutional Right)). According to Prof. Barak, examining an infringement of a constitutional right is almost independent of the circumstances, stating:

An infringement occurs in every situation in which the authority forbids the holder of a right to realize it fully or prevents him from doing so. An infringement is any detraction from full realization of the right. There is no significance to the question whether the infringement was the result of fault (intention, recklessness, willful blindness, negligence) or without fault, whether it was serious or minor, at the heart of the right or its periphery, by an omission or by an act, or whether it was certain or that there was but a possibility – that is not de minimis – for its realization. Every infringement, regardless of its scope, moves the constitutional review from the first step to the second, unless the infringement is de minimis. (Barak, The Constitutional Right, p. 148).

64.       However, some resonances of a view that disagrees with the broad scope of the concept of infringement of right, as defined above, can be found in the case law. Thus, for example, in CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village [30], President Shamgar noted in regard to the right to property: “Violation of the right to property, for our purpose, was illustrated by reference to constitutional acts possessing substantive personal repercussions, for example, those by virtue of which the property of a person is confiscated without proper compensation, in an arbitrary or other substantive breach of his rights.” (ibid., p. 332 [para. 38]; and see the opinion of Justice A. Procaccia in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [31], 852-854; and see the opinion of President A. Grunis in HCJ 2442/11 Shtanger v. Speaker of the Knesset [32]).

            Another possible criticism if the broad view proposed by Prof. Aharon Barak was mentioned by Prof. Barak Medina. In accordance with the deontological-necessity approach presented in his book, an infringement of a constitutional right does not refer to the consequences of the act, alone (that is, the restriction of the full realization of the right), but also concerns evaluating the nature of the act and the reasons for diminishing the protected interest. In the context of the matter before us, Prof. Medina explains that in order for an act by a governmental agency to rise to the level of an infringement of a vested right, the infringement must be “a violation by virtue of an intentional act, whose consequences are certain, and under the circumstances of the matter, comprise some breach of a moral constraint concerning the proper relationship between the government and the individual” (Barak Medina, Human Rights Law in Israel, 88 (2016) (emphasis added – H.M.).

65.       Of course, the above debate might be relevant to the sufficiency of the government’s residual power as a source of authority for the activity of the Cyber Department, however, we have no need to decide among the various approaches for a number of reasons:

A)        In the present case, it would appear that there is no disagreement that, as earlier noted in para. 21, robots and avatars do not enjoy human rights, and therefore infringement of their right to freedom of expression is not relevant, and some of the harmful publications derive from such bots and avatars. Nevertheless, in my opinion, where there is doubt as to whether the act is likely to lead to a real violation of fundamental rights, extreme caution must be exercised, as stated in para 73(b), below.

            The situation of enforcement in regard to social networks is unique and differs in its very nature from the constitutional or classic administrative paradigms in which the individual stands in opposition to the government (see and compare: Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 8 Va. J.L. & Tech, 48-54 (2003)). As Prof. Balkin describes it, on questions of freedom of expression and other issues in the scientific age, there is a triangular relationship: The state is at one vertex, the private internet companies and various platforms are at another vertex, while the speaking individual (or organization) is at the third (see: Balkin, p. 2014). In my opinion, in such a unique power triangle, where the state does not demand or impose removing or restricting expression, and the online platform operator is the one who removes the publication at its discretion, it cannot be said that it is the state that infringes the right, and in any case, those harmed have other remedies, including against the online platform operators.

B)        In the present case, the state’s involvement in protecting or restricting political expression is slight, as it plays no role in providing the infrastructure for political expression (which is provided, as noted, by the online platform operators).

66.       As for the lack of authorization – the Petitioners brought the example of the Israel Internet Association case, which held, as noted, that a police officer lacks authority to order the closure of a “gambling site” operating on the internet, inter alia, in view of the possibility that it might lead to a violation of the right to occupation and freedom of expression of the website operator and its users. However, in my opinion, the said case is entirely different from the one before us for several reasons:

            First, because that matter concerned a closure actively imposed by an administrative organ where it, and it alone, had discretion as to how to act, and to order the provider of access to the gambling site not to permit access to that site. In the case before us, there is no disagreement that the authority to exercise discretion is given to the civil organ to whom the matter is referred – the online platform operators (on the possibility that this is a prohibited delegation of authority, compare: the Israel Internet Association case, para. 15 of the opinion of Justice U. Vogelman).

            Second, and pursuant to our discussion of the infringement of freedom of expression as a fundamental constitutional right, even in the Israel Internet Association, Justice Vogelman held: “With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, if at all” (ibid., para. 10).

            Parenthetically, I would note that even the Mor case (which held that authority to issue an order for revealing the identity of an anonymous internet user should not be established by “judicial legislation”) cannot be of aid to the Petitioners as a source for establishing that the absence of legislative authorization for the restricting activity nullifies the conduct. That affair addressed the limits of interpretation, and in particular, the limits of “judicial legislation”, exercised by the court, and not the authority of the executive branch.

67.       Similarly, we should distinguish the other cases referenced by the Petitioners, as follows:

A)        The Kahane case concerned prior restraint, whereas in the case before us, the alleged offenses have already been committed, and the purpose is to frustrate their continued perpetration and their harm (on this distinction, see: Avigdor Klagsbald, Criminal Offense and Prior Restraint, 2 Plilim 93 (1991) (Hebrew)).

B)        The Manaa case concerned activities that restricted freedom of movement (placing roadblocks) by the police. Here, the infringement, to the extent that there is one, is performed by the internet platform operators and not by a governmental organ, not to mention that the potential victims are deemed to have agreed to the “community rules” (assuming that they are a type of adhesion contract, as held in the Facebook case).

C)        The Hof Azza Regional Council case interpreted sec. 32 of Basic Law: The Government, and approved the payment of advances to those seeking to evacuate the Gaza Strip and Northern Samaria voluntarily, as it concerned an executive authority for which there is no legislative arrangement and the government’s residual authority therefore applied. This is also the case in the matter before us in regard to the Department’s voluntary referrals to the internet platform operators (and compare: HCJFH 9411/00 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [33], 64-65). Even the Prevention of Crimes Law is not a negative arrangement in this regard, as it does not in any way address the subject of voluntary referrals.

68.       Moreover, in those cases in which residual power cannot be of help, the auxiliary authority under sec. 17(b) of the Interpretation Law comes into play. In such cases, and in the circumstances appropriate to the case before us, primary authority for performing voluntary enforcement derives from the general enforcement authority of the Attorney General by virtue of the criminal procedure laws, the Penal Law, and sec. 13 of the Interpretation Law (as argued by the Respondents), or by virtue of the general authority of the Minister of Justice under the Prevention of Crimes Law, including sec 16 therein (and compare: MApp 1190/18  Ethics Committee v. David Yedid, Adv. [34]).

            There are also no grounds for the claim that the executive is trespassing, so to speak, the boundaries of the judiciary in finding that a prima facie offense has been committed by the publisher. The State Attorney’s Office holds such authority and exercises it as a matter of course, as for example, in filing an information when there is a reasonable expectation of a conviction. Moreover – ever since the judgment in HCJ 442/71 Lansky v. Minister of the Interior [35], the accepted view is that a “criminal past” can be established on the basis of the administrative evidence test, even in the absence of a conviction (for a comprehensive survey of the subject, see: Ron Shapira, From Criminal to Administrative Enforcement: Administrative Evidence of the Commission of a Criminal Offense – the Need for a Fair Administrative Process (2019) (Hebrew)), and indeed, at times it is not possible to find the offender or bring him to justice, and yet it would appear that a crime has been committed, consequences can be attributed to it, and it is certainly possible to attempt to prevent the harm or its continuation.

            This is the appropriate place to add that in most of the above cases, the granting of a right to be heard prior to taking administrative action is irrelevant, as the victim (whether because anonymous or unreachable) is not available (see and compare: CA 5739/18 Operators of the Website www.oligarchescorts.com v. State of Israel [36]; Barak-Erez, p. 499).

69.       And now to return to the matter before us.    

            In my opinion, as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited. In these cases, it is difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense.

            This is the place to reiterate that a very high percentage of the publications whose removal or restriction was requested by the Cyber Department concerned offenses of violence and terrorism, and it was not argued that those who committed the offenses are subject to Israeli law. The offenses that the Cyber Department seeks to frustrate by restricting publications that incite violence or terrorist acts are therefore at the heart of the residual powers granted to the government in the areas of security and foreign relations (see: Shetreet, pp. 567-597; Cohn, p. 164).

            In all that concerns offenses of incitement to violence or terrorist acts, this conclusion derives a fortiori from the conclusions of the Arbel Commission Report, in which the majority recommended expanding the voluntary enforcement mechanism even beyond its present state, so that voluntary referrals by the government would be permitted even when a criminal offense is not concerned. As opposed to this, the minority was of the view that the provisions of the Work Procedure are appropriate to the desirable situation. We are treating of the Work Procedure as it is, and we were not asked for any expansion. That is sufficient in the present matter.

70.       Moreover, although the “principle of legality” in administrative law takes on different forms from state to state (and certainly between a state and a supra-national body), the citations and examples appended to the Respondents’ supplementary brief show that at least in a number of western democracies, the authority to initiate the “voluntary” removal of harmful publications is not conferred upon the administrative agencies by virtue of express authorization to act in the said manner.

71.       In addition, I cannot accept the argument that residual power is displaced in the matter before us due to the express legislative provision treating of the authority to investigate and bring charges as detailed above, or by virtue of sec. 17(b) of the Interpretation Law. As noted above, enforcement of the type before us is entirely different from the criminal process – its purpose is not penal, but rather it attempts to prevent publication of material whose affect is immediate and requires speedy action for its removal in order to minimize ongoing harm (respectively): to public safety, public order, protection of the vulnerable, or the proper, fair conduct of elections.

 

A View to the Future

72.       To summarize what has been stated thus far – in my opinion, the Respondents stand, although at times just barely, within the bounds of the law. It cannot be denied that the Cyber Department’s activity, as presented in the preliminary response to the petition, is vital to the protection of national security and social order. The voluntary method by which the Cyber Department acts in this regard is not, however, problem free, primarily in regard to the absence of specific authority for its activity in primary legislation. However, until the enactment of detailed legislation on the matter (as has been done in some countries), the current situation can continue by virtue of residual power or auxiliary authority.

73.       Beyond that, a number of overall problems have been uncovered that the Respondents should consider and correct, as set out below:

A)        The Cyber Department should consider what was stated in the Movement’s request to join, which described a series of defects in the Department’s work, among them: a lack of documentation of the content of the publications that the Cyber Department seeks to remove, inadequate details in the transparency reports produced by the Department, and the non-publication of the Work Procedure (for example: the type of criminal offense grounding the voluntary act; a more detailed account of the alleged offenses related to the publication; the identity of the publisher and its relationship to the State of Israel, to the extent known to the Department). In addition, there is a problem in clarifying the role of the online platform operators (which might have been clarified had those operators been joined as respondents to the petition), and the agreements between them and the Department.

            In view of the fact that most of the Cyber Department’s activity concerns security offenses, exposing the full extent of the Department’s activity certainly presents a problem. However, I believe that the Cyber Department should present paraphrases and examples of the character of the referrals it sends and its discussions with the online platform operators in its transparency reports.

B)        In making its referrals to the online platform operators, the Department should guide itself in accordance with the case law of this Court, which constitutes law that supersedes residual authority in this regard, including the judgments given in CrimFH 7383/08 Ungerfeld v. State of Israel [37]; LCrimA 5991/13 Segal v. State of Israel [38]; LCrimA 7052/18 State of Israel v. Rotem [39] (further hearing pending)).

C)        A legislative initiative should be weighed to provide a detailed arrangement for the voluntary enforcement mechanism, as has been done in some other countries.

74.       Another argument, which was not addressed in the framework of this petition, is the need for establishing a post facto oversight and supervision mechanism for the Department’s activities, and it is recommended that this be considered (on the need for regulating the sphere of activity of actors on the internet in terms of procedure and proper constitutional balances, see my opinion in the Premier League case).

            The above problems are not insignificant, but they do not, in themselves, justify issuing an order nisi in this petition in its present state. Nevertheless, the Respondents must draw conclusions for ameliorating the system in regard to all the aspects set out above.

 

Conclusion

75.       In view of all the above, if my opinion be accepted, we will order the dismissal of the petition in all its parts, subject to my comments in paras. 73 and 74, without an order for costs.

 

Justice A. Stein:

I concur.

 

President E. Hayut:

1.         In his comprehensive, in-depth opinion, my colleague Deputy President H. Melcer well described the uniqueness and complexity of the questions raised by this petition, among them the question of defining a governmental act; the question of the incidence of Basic Law: Human Dignity and Liberty beyond the borders of the state; the question of the rights of computer-generated fictitious users (“bots”), where it is unclear whether and to what to extent a human agent stands behind them; as well as questions related to the area of the regulatory relationship between the state and private bodies operating online. They are unprecedented to a large extent, and even according to the Respondents, the activity that is the focus of the petition “is of a character unlike the usual activity of the State Attorney’s Office” (see the letter of the Ministry of Justice of Jan. 10, 2019, Appendix R/9 of the Respondents’ response to the petition).

            I will, therefore, begin by saying that in my opinion, it is very difficult to examine these substantive questions of first impression given the partial picture presented to us. Therefore, if my opinion were accepted, the petition would be dismissed in limine.

2.         The activity that is the subject of the petition is that of the Cyber Department of the State Attorney’s Office (hereinafter: the Cyber Department or the Department) in the “voluntary” enforcement track. As my colleague the Deputy President explained, in accordance with a Work Procedure that it established, the Department initiates referrals to online platform operators (social networks, search engines, and website hosting providers) to report publications that, in the opinion of the State Attorney’s Office, constitute an offense under Israeli law and also breach the Terms of Use of the platform itself. According to the Department’s preliminary response, such referrals are sent to the online platform operators only when there are additional considerations that justify the referral, among them the severity of the publication, the scope of its distribution and its “viral” potential. In practice, the Department focuses primarily upon publications related to the operations of terrorist organizations and in the matter of inciting violence and terror. Referrals are also sent in regard to publications that may harm minors, certain public servants, or the integrity of Knesset elections.

            My colleague the Deputy President noted that the petition suffers from two defects that are sufficient for its dismissal in limine. They are the failure to join the online platform operators as respondents to the petition, and an insufficient factual foundation for the argument that the Cyber Department acts without authority. This, inter alia, in view of the uncertainty as to the questions of whether the publishers that are the subjects of the referrals are people or “bots”; whether they are located in the country or abroad; and whether the online platform operators decide to remove publications independently or are perhaps influenced by the fact that the referring body is the State Attorney’s Office. However, my colleague was of the opinion that in view of the fundamental constitutional questions raised by the petition, they should be addressed on the merits. In his opinion, the activity of the Cyber Department constitutes a governmental act, and where there is a possibility that the Department’s referrals may influence the decisions of the online platform operators whether to remove the publications, there is a need for some form of authorization for the Department’s activity. Therefore, my colleague addressed the question whether it is possible to discover a source that authorizes the Cyber Department to act in this manner, and concluded that it can be premised upon the residual power granted to the government under sec. 32 of Basic Law: The Government, as long as the Cyber Department’s activity does not infringe fundamental rights, inasmuch as residual power cannot serve as the basis for such infringement.

3.         On the basis of the foundation laid out before us in regard to the manner of the Cyber Department’s activity and its consequences for the online platform operators, and in view of the significant deficiencies in that foundation, my colleague is of the opinion that it cannot be said that the state is the entity that infringes a constitutional right. In this regard, he emphasizes the significant difficulty inherent in recognizing the possibility of the infringement of freedom of expression of a non-human entity (e.g., “bots” and “avatars”). He further emphasizes that the entity that holds the power to decide whether or not to remove the publication is the platform operator and not the state. Therefore, my colleague holds that “as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited” (para. 69 of his opinion).

4.         I concur with the conclusion of my colleague the Deputy President that the activity of the Cyber Department that is the subject of the petition constitutes a governmental act. In this context, the words of Justice I. Zamir in regard to the definition of “administrative authority” are apt:

When an administrative agency exercises its authority, […] it fulfils a public function under law. That being so, it is subject to the special system of laws that is the system of administrative law […] It is possible that this is the simple and appropriate way to define administrative authority: Administrative authority is a public function in accordance with law (Izhak Zamir, Administrative Authority, vol. I, The Public Administration, 205 (2^nd expanded edition, 2010) (Hebrew) (emphasis added).

            In the matter before us, as my colleague the Deputy President noted in his opinion, the Cyber Department’s referral activity is systematic, focused, broad, and organized: Attorneys of the State Attorney’s Office send referrals to the online platforms in regard to publications that are prima facie criminal offences, regarding which there is a public interest in their removal, and that prima facie breach the Terms of Use of the platform. This is part of a declared plan of the State Attorney’s Office, and in in accordance with a dedicated procedure established for the purpose (see para. 15 of the Respondents’ supplementary brief). In these circumstances, it is clear that the Cyber Department’s activity constitutes a “public function”, and thus is a form of decision or exercise of authority on behalf of the state.

5.         The center of gravity of the petition, in its present form, is the question of infringement of a fundamental right. According to the Respondents, even if the Cyber Department’s activity constitutes a governmental act, and therefore requires a conferral of authority, it is possible to suffice in this regard with the government’s residual power (sec. 32 of Basic Law: The Government, which my colleague the Deputy President discussed at length), or the authority of the State Attorney’s Office as the representative of the Attorney General, who holds the auxiliary authorities required for the performance of his role (based upon secs. 3 and 17 of the Interpretation Law, 5741-1981). Auxiliary authority and residual power cannot form the basis of an infringement of a fundamental right (see HCJ 5128/94 Federman v. Minister of Police [16], 652; sec. 8 of Basic Law: Human Dignity and Liberty, according to which any violation of rights under that law requires express authorization by a law or by virtue thereof; and see Daphne Barak-Erez, Administrative Law, vol. 1, 146 (2010) (Hebrew); HCJ 4455/19 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Israel Police [40], paras. 14 and 34)). Deciding whether there is sufficient authorization for the activity of the Cyber Department is, therefore, largely contingent upon whether that activity infringes fundamental rights. According to the Respondents, the “informing” and recommending referrals by the Cyber Department to the online platform operators do not amount to a violation of rights. That is so because the platform operators exercise independent discretion in all that concerns the removal of the content that is the subject of the referrals, whereas the Cyber Department only makes recommendations.

            The petition before us suffers from two material defects that my colleague the Deputy President addressed, each of which – and a fortiori cumulatively – frustrate the possibility of deciding this fundamental question on the merits. Therefore, in my opinion, there is no recourse but to dismiss the petition in limine. These defects are, as noted, the failure to join relevant respondents, and a lack of a factual foundation. I will address these respectively.

6.         Failure to join relevant respondents – as has been held on more than one occasion, refraining from joining those who may be affected by the decision upon the petition constitutes a material defect that can justify dismissing the petition in limine. This, inter alia, because the respondents who were not joined can shed essential light on the issues to be addressed: “In order for the court to ground its decision upon a full, reliable picture of the situation, there is no one better to present the opposing view than one who is related to the matter and may be harmed by a court order” (HCJ 1901/94 MK Landau v. Jerusalem Municipality [41], 415 (hereinafter: the Landau case); and also see Izhak Zamir, Administrative Authority, vol. III, Judicial Review – Threshold Rules, 1747 (2014) (Hebrew)). This defect is particularly salient when the petitioner has been granted the opportunity to correct the omission and chose not to do so (HCJ 151/11 Ruth and Emanuel Rackman Center v. Minister of Justice [42], para. 17; and compare: HCJ 384/82 Pachmas Metal & Plastic v. Minister of Finance [43], 300-301)).

            In their preliminary response to the petition, the Respondents raised several arguments in regard to this threshold requirement, and the Petitioners’ attorney was even asked about this in the course of the hearing on Aug., 8, 2020, responding:

We considered whether to join, we considered before whom to petition. We are not arguing against Facebook or any other company. We are arguing that we have here a governmental act by the state that refers to the content providers in this entire sphere of removal of content without connection; the governmental act here is that of initiated referral by the Cyber Department – that is an act that requires authorization. […] We do not believe that there is harm [to the operators] (p. 4, lines 29-32 of the transcript).

7.         I am unable to accept this argument. The Cyber Department’s Work Procedure lists a “mixed multitude” of “online platforms”, and the differences outnumber what they share in common in no few aspects (see sec. 1 of the Procedure). The online social networks (Facebook, etc.) are unlike online search engines (like Google) or website “hosting” providers (like WordPress). And an online social network, in which mostly text and pictures are shared (like Facebook and Twitter) is unlike a social network for sharing only videos (like YouTube). These platform operators are differentiated by a number of criteria that have consequences for the questions at the heart of this petition, among them: the type of contents regarding which the Cyber Department sends notifications; the policy for treating those referrals; and the importance that each operator assigns to the identity of the party requesting the removal of content. The question whether and to what extent these operators are expected (all or some) to be harmed by the granting of the petition was also not sufficiently examined, and I am not convinced that the Petitioners succeeded in showing that those operators cannot be expected to be harmed at all by a decision on the merits in this petition. As my colleague the Deputy President noted, we have before us a “triangular relationship” or a “power triangle” with three vertices: the state, the publishers (in whose names the Petitioners argue), and the online platform operators. Without representation for one of the vertices of the triangle, it is impossible to decide material questions that affect the entire triangle.

            Indeed, at times the Court is willing to address a petition on the merits despite the defect of not joining relevant respondents, for example, “if the harm to the third party is negligible, if there are grounds for assuming that he is not interested in arguing before the Court, or if it is clear that one of the Respondents will fully and adequately present the arguments in regard to that party” (the Landau case, p. 415). Without expressing an opinion on the question of the scope of the harm that would be caused to the platform operators if the petition were granted, it is clear that there are no grounds for assuming that all of these operators are not interested in voicing their position on the matter at the heart of this petition, or for assuming that the parties to the petition can present the full picture in regard to those operators.

8.         Thus, we find that this petition suffers from a material defect of not joining respondents who may be harmed by the decision rendered, and the information they have may even materially affect the decision on the merits of the Petitioners’ arguments. This is particularly so in regard to the question whether the Cyber Department’s activity infringes constitutional rights, and the question of the scope of the alleged infringement. The Petitioners were confronted with the said defect at the preliminary stage and chose not to remedy it.

            Even if one were to argue that this defect can be remedied by alternative means, such as joining the respondents at the Court’s initiative, that would be to no avail as the petition, in its current state, suffers from an additional, no less material defect in regard to the insuffciency of the factual foundation necessary for deciding upon it.

9.         As my colleague the Deputy President emphasized in his opinion, we were not presented with data on the scope of the infringement of fundamental rights caused as a result of the operators’ acceding to the Cyber Departments referrals. In particular, it was not made clear what part of the referrals concern publications that originate beyond the borders of the state, anonymous publications, or publications that were not uploaded by human beings – in which case, as my colleague noted, material questions arise in regard to the applicability of Basic Law: Human Dignity and Liberty to those publications. In addition, although the Respondents presented data in regard to the total number of referrals issued by the Cyber Department over the last few years (see para. 17 of the opinion of my colleague the Deputy President) and asked to present ex parte “a number of concrete examples of the Cyber Department’s reports to the online platforms in various areas” (para. 26 of the preliminary response), it appears from the Movement for Freedom of Information’s request to join that the Cyber Department does not maintain a database of all the publications regarding which it sends referrals. The activity reports published by the Cyber Department present only laconic information about the publications regarding which referrals are sent, the identity of the publishers and the reasons for sending the referrals (see para, 73(a) of the opinion of my colleague the Deputy President).

10.       The absence of a factual foundation in regard to the activity of the Cyber Department does not fall upon the Petitioners but rather upon the Department itself, and the relevant data is in its possession or can be obtained by it. However, the Petitioners did not focus their arguments upon the transparency of the Cyber Department’s activity, did not request an operative remedy in this regard, did not exhaust the procedures with the Respondents in this regard, and it is not clear whether they submitted requests in this matter under the Freedom of Information Law, 5758-1998. In these circumstances, and given the factual gaps addressed in the opinion of my colleague the Deputy President, I do not believe that it is possible to continue to examine the petition on the merits in its current state.

11.       The primary question raised by the petition before us is, as stated, whether the referral activity of the Cyber Department – as expressed in the Work Procedure that it established – leads to a violation of fundamental rights. To the extent that the answer is in the negative, it is possible to suffice with the sources of authority cited by the Respondents, and hold that this activity does not constitute a deviation from authority, while to the extent that the answer is positive, the Respondents will be required to find some alternative source of authority, in the absence of which there will be no recourse but to hold that the Cyber Department acts ultra vires. A significant component of the Petitioners’ argument thus treats of the alleged infringement of freedom of expression. The Petitioners further argue that the Cyber Department’s activity also involves an infringement of the right to due process and the right to be heard, because it does not afford the publishers the right to be heard prior to sending the referral, which includes the Department’s position that the publication constitutes a prima facie criminal offense.

            My colleague the Deputy President is of the opinion that there is no violation of a constitutional right in this case, without seeing a need to decide the question of the criteria for the existence of an infringement of a constitutional right (paras. 63-65 of his opinion). To my mind, the accepted approach, long established in the case law of this Court, is that when there is an infringement of a constitutional right that is not de minimis, the constitutional review moves from the first step – that of the violation – to the second, i.e., examining the justification for the violation in the framework of the tests of the Limitation Clause. In any event, under the circumstances of the matter before us, the insufficient factual foundation in regard to the manner in which the Cyber Department operates, together with the insufficient factual foundation in regard to the conduct of the online platform operators, which largely derives from their not being joined to the petition (particularly the question of the importance they assign to the fact that the referrals are sent by the Cyber Department of the State Attorney’s Office of the State of Israel), all lead, in my opinion, to the conclusion that, at this point in time, it is not possible to decide the question whether the Cyber Department’s activity leads to an infringement of freedom of expression or of the right to be heard and the right to due process. In other words, in view of the partial picture of the necessary facts presented to us, and in view of the absence of the online platform operators as parties to the petition, it is not possible, in my opinion, to examine the material questions raised by the petition, and there is no alternative but to dismiss it in limine. I would also join the comments in para. 73 of the opinion of my colleague the Deputy President in regard to the difficulties presented by the activities of the Cyber Department, and his call for the publication of the details of the Work Procedure of the Cyber Department (para. 12 of his opinion). Therefore, were my opinion accepted, we would order the dismissal of the petition in limine, without an order for costs.

 

The petition is denied.

Given this day, the 30^th of Nissan 5781 (April 12, 2021).

 

 

 

CrimA 5338/17

 

 

Appellants:

Moshe Abutbul – Mayor of Beit Shemesh Beit Shemesh Municipality

v.

 

Respondents:	1.  Nili Phillip 2.  Eve Finkelstein 3.  Miriam Sussman 4.   Rachelli Shluss 5.  Miri Shalem 6.  The Israel Religious Action Center – Israel Movement for Reform and Progressive Judaism 7.  Attorney General

 

Appeal on the decision of the Jerusalem District Administrative Affairs Court (Judge Y. Merzel) of June 7, 2017 in AP 049319-05-15

 

 

Israeli Supreme Court cases cited:

[1]       LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum (Dec. 9, 2015) [https://versa.cardozo.yu.edu/opinions/radio-kol-baramah-v-kolech-%E2%80%...

[2]       HCJ 746/07 Ragen v. Ministry of Transport (Jan. 5, 2011) [https://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[3]       HCJ 153/87 Shakdiel v. Minister for Religious Affairs [1988] IsrSC 42(2) 221 [https://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affa...

[4]       HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94 [https://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[5]       HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630 [https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-l...

[6]       CrimA 517/06 Boaz Manor v. KPMG Inc. (July 24, 2007)

[7]       CrimA 126/62 Dissenchik v. Attorney General [1963] IsrSC 17(1) 169 [https://versa.cardozo.yu.edu/opinions/dissenchick-v-attorney-general]

[8]       CrimA 519/82 Greenberg v. State of Israel [1983] IsrSC 37(2) 187

[9]       CrimApp 4445/01 Gal v. Katzovshvili, [2001] IsrSC 56(1) 210

[10]     LCrimA 3888/04 Sharbat v. Sharbat [2004] IsrSC 59(4) 49

[11]     CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [2000] IsrSC 54(1) 230

[12]     LCrimA 48/98 Ezra v. Zelezniak [1999] IsrSC 53(3) 337

[13]     CA 371/78 Hadar Lod Taxis v. Biton [1980] IsrSC 34(4) 232

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Deputy President H. Melcer, Justice (emer.) U. Shoham, Justice D. Mintz)

 

 Judgment

(Nov. 1, 2018)

 

Deputy President H. Melcer

1.         This is an appeal on the decision of the Jerusalem District Court, sitting as a Court for Administrative Affairs (Judge Y. Merzel) in AP 49319-05015 of June 7, 2017, in the matter of a request filed by Respondents 1-6 (hereinafter: the Respondents), in the framework of which an order was issued against the Appellants under the Contempt of Court Ordinance (hereinafter: the Ordinance), as explained below.

I will now present the information necessary for deciding the entire matter.

 

Factual Background

2.         On April 26, 2015, the Respondents filed an administrative petition with the Administrative Affairs Court (hereinafter: the administrative petition), concerning the removal of signs placed at various locations throughout the city of Beit Shemesh containing offensive demands, requests and statements concerning women (hereinafter: the signs). The petition was directed against the Appellants – the Beit Shemesh Municipality (Appellant 2), and the Mayor, Mr. Moshe Abutbul (Appellant 1).

To complete the picture, we would note that in June 2012, the Respondents approached the Appellants by various means, demanding that the signs be removed, and on Feb. 20, 2013, Respondents 1-4 even sued the Appellants in the Beit Shemesh Magistrates Court (CC 41269-02-13), claiming that they must compensate them for the humiliation and the offense caused to them due to the Appellants’ failure to remove the signs as required.

3.         On Jan. 25, 2015, the Magistrates Court (Judge D. Gidoni) ruled that the signs that were the subject of the claim convey an offensive, discriminatory message, and that the Appellants bear a conceptual and concrete duty of care to act to remove them. This ruling also determined that the Appellants were negligent in not taking reasonable action to remove the signs, putting them in breach of their duty of care. The Magistrates Court awarded each of the four plaintiffs in that proceeding compensation in the amount of NIS 15,000, as well as legal costs.

4.         After a long period during which the Respondents waited for the signs to be removed by the Appellants, the Respondents filed the said administrative petition. On June 19, 2016, at the conclusion of the deliberations on the administrative petition, the agreements arrived at by the parties were given the force of a judgment (hereinafter: the consent judgment), with the following determinations:

       a.         The Respondents [in the present case – the Appellants – H.M.] once again inform the Court that signs of the type that are the subject of the petition are illegal.

       b.         The Respondents [in the present case – the Appellants – H.M.] have the authority to exercise enforcement measures in respect of the violation of the law by the placement of signs of this type.

       c.         The Respondents [in the present case – the Appellants – H.M.]     will exercise all powers of enforcement at their disposal under law (including imposition of fines) in order to bring about the removal of the signs that are the subject of the petition, as well as other signs that bear the same illegality. Effective enforcement measures will be implemented immediately and continuously, and this matter will be accorded importance in the framework of the enforcement and budgetary priorities of the Municipality.

        d.         In particular, and in relation to the sign marked “A”, a request will be filed with the Beit Shemesh Court for Local Affairs to enter into courtyards within 15 days from today, in order to obtain from the Court an order like the order that was issued in the past, following which the Respondents [in the present case – the Appellants – H.M.] themselves will remove the signs. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] under any law, including the imposition of fines.

        e.         The signs that were marked B and G will be removed by the authorized bodies on behalf of the Respondents [in the present case – the Appellants – H.M.] within 21 days of today. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] according to any law (including the imposition of fines). The Respondents [in the present case – the Appellants – H.M.] undertake to remove these signs, if they are put up again, as soon as possible, subject to effective enforcement constraints.

        f.                      Within 15 days from today, an official request (complaint, if necessary) will be made by the Respondents [in the present case – the Appellants – H.M.] to the Beit Shemesh precinct of the Israel Police in regard to the  specific investigation of the placement of the signs marked A, B and G. A copy of the request will be sent to the Attorney General’s representative.

        g.         I once again notify the Court [this refers to counsel for the Municipality, Adv. Gastwirth – H.M.] that the Municipality requested (some 50) cameras from the Ministry of Public Security as part of the “City Without Violence” program, with a recommendation to place them, inter alia, on Nahar Hayarden Street, at the corner of Yehuda Hanasi (sign A) [additions mine  – H.M.].

5.         On Feb. 20, 2017, some eight months after the consent judgment was handed down, the Respondents filed a request with the Administrative Affairs Court, pursuant to the Ordinance, asking the Court to compel the Appellants to comply with the provisions of the consent judgment granted in the framework of the administrative petition. In the framework of the request, it was argued that despite the long string of events that preceded the filing of the administrative petition, and despite the ongoing harm to women in the city of Beit Shemesh, the Appellants are not exercising significant, effective enforcement measures in accordance with their undertakings in the consent judgment.

6.         On June 7, 2017, the Administrative Affairs Court granted the request in part, and ruled that the consent judgment had indeed been violated with respect to the sign marked “A” in the administrative petition, which was placed on the corner of Nahar Hayarden and Yehuda Hanasi Streets, and the signs that had been placed on Hazon Ish Street in place of the signs marked “G”. It ruled that this breach constitutes sufficient grounds for imposing a conditional fine upon the Appellants. The Court ruled that if all the said signs are not removed by July 6, 2017, the Appellants will pay a fine of NIS 5,000 for each day of delay in their removal. At the same time, the Court ruled that the part of the request concerning new signs placed after the consent judgment, regarding which no concrete order had been issued in that judgment, could not be granted, in light of the procedural framework of contempt of court proceedings.

7.         The present appeal was filed against this decision of the Administrative Affairs Court, together with a request to stay execution of fine. At the conclusion of the hearing before me on the request to stay execution, on July 6, 2017, I ordered that the decision of the Administrative Affairs Court, which was the subject of the appeal, be stayed in part, until such time as a different decision be handed down and subject thereto, provided that the following conditions be met:

a.         The two signs placed on Hazon Ish St. in Beit Shemesh, which call for the banishment of women from the sidewalk on the said street (a photograph of one of these two signs was submitted to the Court file and marked “G”), will be removed by inspectors on behalf of the Respondents [in the present case – the Appellants – H.M.], with the help of the Israel Police, within 14 days of today.

b.         Within fourteen days of today, cameras will be installed by the Municipality, and funded by it, on Hazon Ish St. for the purpose of identifying those attempting to replace such prohibited signs on the street, or of those spraying graffiti with similar content.

c.         The Respondents [in the present case – the Appellants – H.M.] will submit, by July 24,2017, a report on the execution of the instructions in ss. (a) and (b) above, and on all the legal actions and steps that they have taken in order to implement the removal order that was issued by the lower court in respect to the sign placed on Nahar Hayarden St., corner Yehuda Hanasi, in Beit Shemesh, in which women were exhorted to appear in the neighborhood, and in the Hareidi (ultra-Orthodox) shopping center there, in modest dress (a photograph of the sign was submitted to the Court file and marked “A”) (additions mine – H.M.).

8.         Subsequent to the above decision, counsel for the Appellants provided an update in their report of July 20, 2017 as follows:

a)         The two signs that were placed on Hazon Ish St. in Beit Shemesh, which call for banishing women from the sidewalk of the said street, were removed by inspectors on behalf of the Appellants, with the help of the Israel Police, on July 19, 2017 in the afternoon, but the signs were replaced during the night.

b)         On July 11, 2017, Appellant 2 installed wireless cameras, but on July 12, 2017, unknown persons damaged the cameras, rendering them inoperable.

c)         The Appellants concluded that the most effective way to remove the sign (marked “A”) was not by means of the order to enter courtyards and remove the sign forcibly, but by imposing fines on the owners and residents of the building on which the sign was hung.

Accordingly, the Appellants once again requested a stay of execution of the decision of the Administrative Affairs Court until the decision on the appeal.

9.         In her response, counsel for the Respondents stated that the Appellants “continue to drag their feet unceasingly in all their handling of the signs.” She argued that reasonable conduct on the part of the Appellants would be to remove the signs on Hazon Ish St. at night, in order to reduce opposition and friction, but Appellant no. 2 chose to remove them in the afternoon; the Appellants did nothing to repair the cameras; imposition of fines had not as yet brought about the removal of the signs, and in any case, under the circumstances, the conditions for staying execution have not been met.

10.       Counsel for Respondent 7 explained in his response that from the report of the Appellants and from the response of the police it emerges that the Appellants did not act in complete coordination with the Israel Police, and it is possible that had there been such coordination, the result would have been different with respect to the signs that were removed and replaced on July 19, 2017. Counsel for Respondent 7 further argued that the measures taken by the Appellants were insufficient, and that the Appellants are not fulfilling their obligations under the consent judgment. In this context, it was argued that limiting action to the imposition of fines does not amount to fulfilment of the  consent judgment, and once the Appellants made it clear both in the oral hearing and in their response that they do not intend to take action to remove the sign (marked “A”) – there is no justification for staying execution of the decision of the lower court.

11.       On Sept. 4, 2017, I denied the request to stay execution, and ruled that the partial stay of execution that I ordered on July 6, 2017 will lapse on Sept. 10, 2017 (hereinafter: commencement date). I also ruled that the Appellants will pay the costs imposed upon by the  Administrative Affairs Court as of the commencement date, unless the consent judgment is fully and irrevocably carried out prior to the commencement date.

12.       I shall now turn to the arguments of the parties to the appeal.

Arguments of the Parties to the Appeal

13.       According to the Appellants, the District Court erred in its ruling that they were in breach of the consent judgment, and alternatively, even if there had been a breach, in the special circumstances of the case at hand there was no justification for invoking the extreme, exceptional tool of contempt of court proceedings against them. They also argued that the consent judgment could be interpreted in more than one way, and that under the circumstances, there had not been a clear, unequivocal breach – which would have been a fundamental condition for invoking the mechanism of contempt of court proceedings.

In this context it was argued that the District Court did indeed rule that the Appellants had been in breach of the consent judgment in relation to the sign marked “A”, but the consent judgment did not set a time for removing the sign. Therefore, the Appellants were authorized, so they say, to exercise their discretion in regard to the enforcement policy to be adopted in relation to the said sign. Accordingly, after weighing all the relevant considerations, including the fact that the said sign had already been removed in the past, but replaced a few days later, the Appellants concluded that the most effective way of handling this sign was by imposing fines on the owners and residents of the building on which the sign was placed, and enforcing the said fines.

It was further argued that the signs marked “G” were indeed removed by the Beit Shemesh Municipality on July12, 2016, but were replaced on August 8, 2016. The District Court ruled that the Appellants were in breach of the consent judgment in regard to the new signs that were put up, but as opposed to the signs marked “G”, no date had been set for the removal of the new signs, and all that had been decided was that they should be removed “as soon as possible, subject to constraints upon effective enforcement”. Therefore, the Appellants argue that the obligation to remove them in the framework of the consent judgment had no time limitation, but was subject to their discretion. In this context, and after the Appellants weighed all the relevant considerations, including the fact that the signs concerned had been removed several times in the past but replaced each time, the Appellants concluded that the most effective way of handling these signs was not by removing them, but by surveillance of those responsible for posting them.

14.       The Appellants further argue that the caution that must be exercised in relation to invoking the extreme and exceptional tool of contempt of court is even more necessary when, as in our case, the matter concerns enforcement of the policy of an administrative authority. This, according to the Appellants, is because the court will not interfere in the discretion of the competent authorities in determining enforcement policy, other than in the most exceptional cases in which there is a total disregard for enforcement of the law, or unreasonable avoidance thereof on the part of the authorities. The Appellants claim that this is not the situation in the present case. In their view, despite the difficult situation that exists in Beit Shemesh, which includes, inter alia, violence towards municipal workers and inspectors, the Municipality has acted and continues to act to enforce the law in the matter of the signs. Under these circumstances, and bearing in mind that, in any case, the local police take extensive action against all acts of violence, the responsibility for all that concerns the removal of the signs should fall, according to the Appellants, on the police as well, and not only on the Beit Shemesh Municipality. Furthermore, examination of the breach of the consent judgment and the conducting of contempt of court proceedings should be carried out against the backdrop of the harsh reality that pertains in the city with respect to enforcement of the law in general, and with respect to handling the matter of the modesty signs in the city in particular. The Appellants also argue that the rulings of the District Court did not give due weight to the fact that the Appellants invested, and are still investing, great efforts in dealing with the matter of the signs, and these efforts have indeed brought about the removal of some of the signs, even though new ones have replaced them.

15.       As opposed to this, the Respondents argue that although their arguments were accepted in all the legal proceedings, and despite the fact that the Appellants were ordered to remove the signs, the situation today is that signs are still hanging throughout the city. They argue that the Appellants have displayed a consistent and continuous attitude of contempt for the rights of the women in the city, as well as for the principle of the rule of law, throughout the entire legal proceedings. They say that the Beit Shemesh Municipality takes great pains to avoid enforcing the by-law that it itself enacted, and that the Mayor even declared in the past that he supports the hanging of signs. As such, the Respondents further argue that the Appellants are in clear breach of the consent judgment, deliberately and by virtue of an intentional decision, and that they ignore the fact that this is a final judgment that includes clear obligations, and now they wish to reopen their arguments with respect to the means that they should adopt for the purpose of dealing with the signs.

The Respondents also claim that the Appellants are acting with a total lack of good faith, and that they never removed even a single sign without a legal action having been initiated in court. The Respondents add that the Appellants are in contempt not only of the consent judgment, but also of the decision of this Court of July 6, 2017, because new cameras were not installed after the damaging of the cameras, and no additional attempt was made to remove the signs marked with the letters “A” and “G”. The Respondents further note that the obligation to pay the fine is imposed on the Appellants up until such time as the signs are removed permanently, whereas a one-time removal, following which the sign is hung again within a few hours, does not exempt the Appellants from their obligation under the consent judgment to pay the fine and to exercise effective means of enforcement to again remove the signs that were replaced, as well as the other signs hanging in the city.

16.       According to Respondent 7 – the Attorney General – Appellant 2 did not fully fulfill its obligation under the consent judgment to exercise its powers in relation to signs that are hung within its boundaries in an effective, satisfactory manner. Respondent  7 emphasized that the signs are an extreme violation of human rights, including the right to equality, to freedom of movement, to dignity and to autonomy. It was also contended that the conduct of Appellant 2 in implementing the consent judgment is inconsistent with the decision of this Court of Sept. 4, 2017, in the framework of which it was explained that the obligation to pay the fine imposed on the Appellants in the contempt proceedings applies to the Appellants up until such time as the signs are completely removed. Clearly, pinpoint removal, following which the signs are immediately replaced, does not relieve the Appellants of their obligation. In this context, it was argued that the Beit Shemesh Municipality did not adopt all the requisite measures to remove the signs, and that it almost entirely refrains from enlisting the aid of the Israel Police for this purpose.  The Appellants did indeed attempt to comply with the consent judgment, but according to the Attorney General, they did not make the requisite effort, given their obligation to comply with the judgment, and in view of the extreme offensiveness of the signs. It is further claimed that following the action taken by the Municipality to remove the signs on Sept. 10, 2017, and given that the Appellants knew that new signs had been hung, the Municipality has confined itself merely to imposing fines. Clearly, since the Appellants refrained from implementing effective enforcement measures that would lead to the permanent removal of the signs addressed in the consent judgment for more than two months after the time of their pinpoint action, their one-time action cannot be regarded as implementation of the judgment, but rather, as disregard of the duty it imposes on them. Respondent 7 explained that the Israel Police is prepared to extend to the Municipality whatever assistance is necessary, but the burden of initiating and executing enforcement measures lies with the Beit Shemesh Municipality and not with the Israel Police. In addition, regarding the Appellants’ claim that the measure that they adopted is the most effective, it was argued that the approach adopted by the Beit Shemesh Municipality is effective to a certain degree, but it cannot replace the primary action of removing the signs.

Unfolding of Events since the filing of the Appeal

17.       On Dec. 4, 2017, a hearing on the appeal was held before this Court, in the course of which the parties repeated their main arguments. In the course of the hearing, the Appellants stated that the signs – the subjects of the contempt motion – as well as other signs that had been hung in the meanwhile, with similar wording, would be removed by Dec. 18, 2017. The representative of the State Attorney, with the knowledge of the Israel Police, declared that the Israel Police would help the Appellants remove the signs, and would increase its presence in the relevant areas. We granted these declarations the force of a judgment, and ordered that counsel for the parties provide an updating report on implementation of the above by Dec. 21, 2017.

18.       On Dec. 14, 2017, the Appellants provided an update in which they notified the Court that on Dec. 11, 2017 a widespread operation had been conducted by the Appellants, accompanied by the Police, to remove all the signs placed throughout the city. In the framework of this operation, which was  met by riots and disturbances of the peace, six of the eight existing signs were removed by municipal inspectors. The Appellants claimed that the two remaining signs were not removed due to the decision of the Police to stop the operation for fear of matters getting out of control. Several hours after the end of the operation, a number of small signs were hung, and later, the large sign, marked “A” was once again replaced. Subsequently, on the night of Dec. 12, 2017, the Appellants began another extensive operation to remove the signs in the city, removing no less than 15 signs throughout the city, including the sign marked “A”. In addition to the above operations, the Appellants said in their updating report that they will continue to impose fines on the owners and residents of the properties on which the signs appear, and they will examine how and when it will be possible to install a camera at the corner of Yehuda Hanasi and Nahar Hayarden streets, where the large sign marked “A” appeared.

In light of the above, the Appellants asked the Court to rule that there is not, nor was there, reason to pursue contempt of court proceedings against them, and accordingly to grant the appeal and reverse the decision of the District Court on the matter.

19.       From the response of counsel for Respondent 7 that was submitted to this Court on Dec. 22, 2017, it emerges that on Dec. 14, 2017, extensive action was indeed taken, in which additional signs were removed. It was also reported that the Israel Police increased its presence in the streets of Beit Shemesh, with emphasis on those streets where trouble was likely, and that it is dealing with events that occurred in response to the removals, providing a response to developing events and helping the Beit Shemesh Municipality in carrying out its duty to remove the signs. It was also noted that the Israel Police attempted to initiate additional actions to remove the signs, and to this end it approached certain people in the Municipality, but the cooperation on the part of the Beit Shemesh Municipality, so it was claimed, was limited. In this context, the response of Respondent 7 described four cases in which police officers from the Beit Shemesh station contacted various people in the Municipality in order to initiate action, but either there was no response to their request, or the response was negative.

20.       On Dec. 28, 2017, the Respondents filed their response to the Appellants’ report. According to the Respondents, as opposed to the picture of the situation that the Appellants sought to paint, there were no widespread, violent riots and disturbances of public order, but gatherings of several dozen citizens at most, against whom no measures were taken to disperse the demonstrations. The Respondents also claimed that, as emerges from the response of Respondent 7, the Appellants are again dragging their feet and refraining from seeking police help for the purpose of further removal of the signs. It was also explained that there are currently more signs hanging throughout the city of Beit Shemesh than were hanging at the time that the proceedings were conducted in this Court on Dec. 4, 2017. The Respondents also said that in addition to the many signs, graffiti had been spayed, and a great number of stickers calling for modest dress affixed (and not removed by the municipal inspectors). The Respondents also said that to the best of their knowledge, to this day no suspects have been arrested for placing signs or for spraying the offending graffiti. It was further noted that on Dec. 15, 2017, a notice calling upon people to harass Respondents 1-5 was distributed, aimed at causing them to desist from their legal battle against the modesty signs. The notice contained the personal details of Respondents 1-5, and after its distribution, Respondents 1-5 began receiving threatening calls.

The Respondents further contended that neither the Appellants nor the police are doing what they ought to be doing to put an end to the shameful phenomenon that has made its appearance, according to them, throughout Beit Shemesh. They said that despite the Appellants’ declaration that they are pursuing the process of imposing fines on the residents of the buildings on which the signs are placed, from an investigation conducted by the Respondents it emerges that hundreds of hearings that had been scheduled for arraignments in cases in which those accused of placing the signs opted for a trial had been postponed at the request of the Municipality. Furthermore, despite the fines having been imposed many months ago, the Municipality has not taken any steps to collect them. In addition, it was stressed that the cameras that the Appellants were supposed to install at the main points of friction have not yet been installed either. The Respondents also noted in their response that following the hearing that was held in this Court on Dec. 4, 2017, Appellant 1, the mayor of Beit Shemesh, was interviewed on the Reshet Beit radio station, and he stated that Respondents 1-5 must respect the sensibilities of the residents and desist from acts of provocation.

21.       In their response dated Jan. 1, 2018, the Appellants argued that they had proved, time after time, that they are committed to an uncompromising war on the phenomenon of the signs, and that even if some of the signs are replaced before being removed again, there is no real justification for pursuing the contempt proceedings against them. The Appellants argued that in the course of a period of two weeks, they conducted three operations to remove the signs. Each such operation imposed a heavy financial burden on the Beit Shemesh Municipality, and it is therefore not able to carry out such operations on a daily basis. In this context it was further argued that it is the police that have failed time after time to eradicate the phenomenon of the signs, and in an attempt to hide its failures it seeks to lay the full responsibility on the shoulders of the Appellants. In all that concerns the installation of cameras, it was explained that the Municipality acquired “a camera with face-recognition technology and real-time transmission […] but as of the present time, the police have not yet decided on the place and time for installation of the camera.”

22.       After a careful reading of the updating reports from the parties, on Jan. 15, 2018 I ordered that a further hearing be conducted on the appeal. The parties would be allowed to submit additional updates on their behalf until three days before the date of the hearing, which was set for Feb. 18, 2018.

23.       On Feb. 15, 2018, the parties submitted updating reports in accordance with the order to do so. In the framework of the report submitted on behalf of the Appellants, it was claimed that they continue in their consistent, vigorous activity against the phenomenon of the signs in the city, which they say has led to a significant decline in the dimensions of the phenomenon. The report also mentioned that on Jan. 15, 2018, the Municipality embarked on an additional, extensive operation, accompanied by the police, to remove the signs. The Appellants claimed that the said operation was met by violence and disturbances, and that 18 signs were removed in the operation, including large signs that had been hung on buildings. These were removed by means of a crane. It was argued that following the above operation, no large signs remain on buildings. The few remaining signs are small, or stickers that call for maintaining modest dress, and their contents are not, according to them, offensive, as were the contents of the large signs that were posted in the past. It was also mentioned that the signs marked “G”, which call to refrain from using the sidewalk, were removed by the Appellants on the evening of Feb. 14, 2018, and that it is their intention to continue to take action against all the signs throughout the city, including the small signs and the stickers that call for maintaining modest dress. It was further mentioned that together with removing the signs, the Appellants are taking legal action against the owners of the apartments in the buildings on which the signs were hung. In this framework, and following the fines imposed on the owners and their request to be tried for the said fines, the Appellants said that of late, plea bargains have been made with some of the residents, which include payment of the fines and an undertaking to refrain from committing offenses under the Beit Shemesh (Notices and Signs) By-Law, 5715-1955. On the subject of the cameras, it was argued that the Appellants are acting to install the cameras throughout the city, but in order to decide on the place and time, serious, systematic groundwork is being done by the city in cooperation with the police.

24.       The updating report submitted by Respondent 7 stated that the Israel Police is continuing to take various steps to provide assistance and security support to the Beit Shemesh Municipality in its actions to remove the signs and to prevent their replacement with new signs. It was also stated that the Israel Police holds frequent discussions with various entities in the Beit Shemesh Municipality, with the aim of initiating additional action to remove the signs. In this framework, on Dec. 26, 2017 the Beit Shemesh Municipality took action to remove signs, with the help of police forces, and 15 signs were removed. As was also stated in the updating report submitted by the Appellants, additional, similar action was taken on Jan. 15, 2018,  in the framework of which 18 signs were removed. According to the report, this action was met by various provocations and disturbances, and only the police presence made it possible for the Municipality inspectors to continue carrying out their job as planned. It was also stated in the report that the police and the Municipality carried out an advance reconnaissance to remove the graffiti, and that the Municipality is waiting for a quote to carry out the removal.

25.       The Respondents’ updating report stated that since the hearing held on Dec. 4, 2017, there had indeed been several operations to remove the signs, but some of the signs had been replaced. In addition, many stickers calling for modest dress had been affixed, and nothing came of calls to the municipal inspectors to have them removed. In this context, the Respondents noted that most of the signs and the stickers are located in the public domain at a low level, and therefore, it is not physically difficult to remove them. According to the Respondents, the fact that the signs and the stickers are still evident throughout the city means that both the Municipality and the police are not doing enough to eradicate the phenomenon. The Respondents emphasized in their report that to date, cameras have not been installed at the friction points in the city, despite the fact that in the consent judgment, the Appellants declared that they had applied to the Ministry of Public Security to receive cameras as part of the “City Without Violence” project. It was stated that the Ministry of Public Security approved a budget for the Municipality for seven security cameras, but contrary to its undertaking, the Municipality chose not to install these cameras in the areas that were the main friction points. It was further stated that despite the willingness of the Ministry of Public Security to authorize municipal inspectors in Beit Shemesh as support inspectors, the Municipality refuses to ask the Ministry of Public Security to authorize the inspectors, thereby preventing, in effect, the reinforcement of the security set-up in the city, in a way that would help in enforcing the law and eradicating the phenomenon of the signs.

26.       On Feb. 18, 2018, at the end of the additional hearing before us, in which we learned of a degree of progress that had been made in carrying out the provisions of the consent judgment, we made it clear in our decision that this progress is still insufficient in the circumstances, and that the Appellants must act, within 30 days –

        a.  To install seven cameras in the neighborhood in which there are violations, the budget for which has been approved for the Municipality by the Ministry of Public Security and the Israel Police (in the framework of the “City Without Violence” project).

        b.  To remove the large offending sign that is still in place – at the corner of Nahar Hayarden St. and Yehuda Hanasi St. (45 Rabbi Elazer St.) [the sign marked “A” – H.M.].

        c.  To remove the offending signs that were hung in the city, and to erase or cover the graffiti relating to the exclusion of women.

        d.  To move forward with the proceedings that were initiated against owners or residents of the buildings who aided in hanging the offending signs/notices.       

        e.  To remove immediately any new sign or notice that is hung.

(Emphases added – H.M.)

It was also ruled that the Appellants must report by March 20, 2018 on the actions taken by the Municipality, and the other parties must respond to their report by March 26, 2018.

27.       On March 20, 2018, the Appellants submitted their updating report. The report stated that after the hearing, three dates were set for operations to remove the signs. Accordingly, on Feb. 27, 2018, the Municipality carried out an extensive operation, with police support, to remove the signs. It was argued that in the course of this operation, hundreds of stickers, dozens of graffiti inscriptions and a number of signs, including the large sign marked “A”, were removed. The operation was met by disturbances of the peace, and there was even one incident of stone-throwing at a municipal vehicle which had municipal employees inside. After the operation, several graffiti inscriptions reappeared, including at the location of the sign marked “A”, and the report stated that these will again be removed in the course of the operation planned for the near future.

As for legal proceedings against the residents of the buildings on which the signs were hung, the Appellants said in their report that subsequent to the fines that were imposed on the residents and their requests to go to trial, plea bargains were signed and approved in respect of all the residents. These plea bargains included payment of the fines and an undertaking to refrain from committing offenses of this type, and most of the residents have already paid the fines that were imposed on them in the framework of the agreements.

Concerning the installation of the cameras, the Appellants said that this was a complex matter, and that it was not possible to complete the task within 30 days of the decision of this Court. They said that for the purpose of installing the cameras, the Ministry of Public Security allocated a budget of NIS 318,000, and that the Municipality intended to use this budget, and even to add to it, in order to install as many cameras as possible, but that this was likely to take up to 150 days (note: in the meanwhile, 150 days have passed and the Appellants have not reported that the installation has been carried out).

28.       On March 29, 2018, the Respondents submitted their response to the above report. Concerning the installation of the cameras, they said that the Municipality has been declaring its intention to install cameras in the sensitive areas for a long time, but these intentions have remained on paper, and in fact, not even one camera has been installed in those areas. The Respondents claim that although there is a budget, and although the Municipality has been saying for years that it intends to install cameras in the areas that are the main centers of dispute, it continues to refrain from installing the cameras, and it thus continues to disregard the decisions of this Court. In this context, the Respondents explained that there are dozens of cameras in every neighborhood in Beit Shemesh – except for those neighborhoods that are the main trouble-spots. It was also claimed that the proceedings conducted by the Municipality involved residents who were not involved in hanging signs, and only by installing cameras will it be possible to locate and initiate proceedings against those responsible for hanging the signs and violating the by-law.

The Respondents further maintain that the Appellants’ claim that “there are no longer any large signs on buildings throughout the city” is not true. They say that the large sign, marked “A”, was indeed removed, but that the same building now bears graffiti with identical wording to that of the sign that was there, and despite several actions by the Municipality to remove the signs, the city is still festooned with signs, stickers and graffiti  calling for modest dress.

29.       The updating report from Respondent 7, submitted on March 29, 2018, states that the Israel Police continues taking various steps to provide help and security support to the Beit Shemesh Municipality in its activity to remove the offending signs and prevent additional signs being hung. It also mentions that together with the various operations that took place on Feb. 15, 2018, Feb. 27, 2018, March 6, 2018 and March 21, 2018, in coordination with the Beit Shemesh Municipality, in which signs, stickers and graffiti were removed, the Israel Police reinforced its presence in the relevant areas within the boundaries of the city of Beit Shemesh. 

As for the of installation of cameras, the claim was that the Israel Police did indeed recommend that the Municipality erect high poles in order to cover a wide area and prevent vandalization of the cameras. However, a letter sent by the Chief of Police in Beit Shemesh to municipal officials explained that this was only a recommendation. Therefore, the delay in installing the cameras was not caused by the Israel Police, and the responsibility for their installation lies with the Beit Shemesh Municipality alone.

30.       On April 24, 2018, the Respondents reported in writing to the Court that in the month since the responses were submitted, the situation in Beit Shemesh in relation to the signs had deteriorated significantly. They noted that as of the date of writing the notice, there had been no progress on the installation of cameras. Moreover, graffiti was spreading, and the serious harassment of girls and women in the city in regard to modesty was continuing.

31.       On May 6, 2018, the Appellants submitted their response, in the framework of which they denied outright the assertions of the Respondents that they are disregarding the decisions of this Court. It was further emphasized that the present concern is an appeal of the decision of the District Court according to the Ordinance, on the matter of the consent judgment. The Appellants claim to have already fulfilled all the provisions of the consent judgment, and everything that is being carried out in accordance with the decisions of this Court is well beyond the scope of the consent judgment. They also claimed that, as is evident from the many updating reports that were submitted to this Court both by the Appellants and by Respondent 7, over the last year the Municipality conducted many operations with police support to remove the signs and the graffiti throughout the city. It was also argued that the consistent, vigorous actions of the Municipality, both on the physical level of removing the signs and on the legal level of taking action against the residents of the buildings, has led to the almost total eradication of the phenomenon of signs in the city.  However, alongside the gradual eradication of the phenomenon of the signs, the phenomenon of stickers and graffiti has grown. The Appellants declared that in accordance with the decisions of this Court, they acted and will continue to act to remove the stickers and the graffiti, as well. At the same time, they argued that hanging the signs, affixing the stickers and painting graffiti in the public domain constitute criminal offenses, and the responsibility for preventing them lies primarily with the police, which alone has the tools to find and arrest the perpetrators.

As for installing cameras, the Appellants notified the Court that the Municipality had issued a tender to the suppliers of the Ministry of Public Security for the installation of seven cameras, but the budget allocated by the Ministry of Public Security is much lower than the one bid that was tendered, and therefore a meeting of the Municipality was called for the purpose of approving the bid and attempting to lower the price.

Deliberation and Decision

32.       After studying the arguments of the parties, reviewing all the material that was submitted to us, and hearing the arguments of counsel for the parties, my position is that the appeal must be denied, and I will suggest to my colleagues that we decide accordingly. I shall explain below the reasons for this conclusion. However, before I address the questions that must be decided in this appeal, I will say a few words about the general phenomenon of the exclusion of women from the public domain.

Exclusion of Women from the Public Domain

The term “exclusion of women” refers to sweeping discrimination on the basis of sex, the main characteristic of which is withholding from women, due to the fact that they are women, the possibility of receiving public services, of participating in public activity, or of maintaining a presence in the public sphere. The exclusion of women is liable to manifest itself in several ways. One expression of it, for example, is gender separation, whereby certain public services are in fact provided to women, but in a separate manner. The exclusion of women may express itself in another form when women are prevented or categorically restricted from receiving services or from active participation in activity that takes place in the public domain.

34.       The practices that are suspect as being exclusionary of women give rise, by their very nature, to different questions in a variety of legal spheres, the central one of which is the constitutional-public sphere. These practices emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy, and freedom of occupation, as against opposing rights and interests deriving from the principles of multi-culturalism, freedom of religion and the desire to prevent offense to religious sensibilities (see: LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum [1]  (hereinafter: Kol Barama); HCJ 746/07 Ragen v. Ministry of Transport [2] (hereinafter: Ragen); Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 ucla j. int'l & for. aff. 339, 362-66 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad For Women? 9-24 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum, eds., 1999)).

35.       The exclusion of women in Israel sometimes involves a unique element that includes religious considerations, due to which we must ask whether, in special circumstances, it is possible to justify separate, or limited, treatment of women in the public domain, in view of the whole array of relevant interests (see, inter alia: Kol Barama case [1]; Alon Harel and Aaron Shenrech, The Separation Between the Sexes on Public Transport, 3 Alei Mishpat 71 (2003) (Heb.); Noya Rimmelt, Separation Between Men and Woman as Sexual Discrimination, 3 Alei Mishpat 99 (2003) (Heb.); Zvi Traeger, Separation Between Men and Women as Sexual Harassment, 35 Iyyunei Mishpat 703, 709-13 (2013) (Heb.); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211 (2007)).

36.       The Report of the Ministry Team for Investigation of the Phenomenon of Exclusion of Women in the Public Domain (Jan. 5, 2012) (hereinafter: the Ministry Report), whose conclusions were adopted by the Attorney General in May 2013, examined in depth the phenomenon of the exclusion of women in this context. Gender separation and distinction in cemeteries, in state ceremonies, on public transport and in regard to the freedom of movement of women as pedestrians in ultra-Orthodox neighborhoods were all examined, including the various cultural and religious (halakhic) interests. As mentioned in the Ministry Report, the criterion that was adopted for considering the constitutionality of each occurrence that was suspect of being exclusionary of women was the criterion that was formulated in the case law of this Court regarding discrimination, namely, the question to be asked is whether there is a “relevant difference” that stems from the nature and the substance of the public services that are provided that would justify gender separation. At the same time, it was noted that in the framework of this examination, the unique cultural aspects of the ultra-Orthodox community must also be considered, including the question of how to relate to the fact that the women in the ultra-Orthodox community are a group that constitutes a “sub-minority” within the ultra-Orthodox minority (paras. 13, 25 and 242 of the Ministry Report; Kol Berama case [1]).

37.       At this point it should be noted that not every activity or policy that is said to constitute “exclusion of women” will necessarily be classified ultimately as prohibited discrimination, since the reality of life in these contexts is complex, and it does not permit the adoption of a simplistic, extreme approach with all its implications. Indeed, a practice that is suspect as being exclusionary of women will be examined on its substance, in accordance with its nature and characteristics, and according to the norms established in the case law (see, inter alia: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 703-05 (2014) (Heb.); HCJ 153/87 Shakdiel v. Minister for Religious Affairs [3], 242-43; HCJ 4541/94 Miller v. Minister of Defense [4], 109-10; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], 652-60 (hereinafter: Israel Women’s Network).

38.       “Modesty signs” are part of the disturbing phenomenon of excluding women from the public domain. Chapter 17 of the Ministry Report deals with the specific subject of the signs, and states that a local authority must refrain, insofar as possible, from allowing such exclusionary signs to be hung within its bounds, certainly in the public domain, in that they restrict the ability of women to move freely in that domain. The Ministry report makes it clear that placing signs in the public domain that call for women to dress in a modest manner, or to refrain from being in a certain place, expresses an illegitimate message whereby women are not free to use any part of the public space that they wish, or that their presence in that space is conditional upon being dressed in a certain way, even though the sign does not constitute an actual physical barrier limiting the public domain (see: p. 9 of the Ministry Report).

39.       The signs under discussion, which are displayed in the public domain, apparently announce the rules governing that location, and they instruct women to dress in accordance with certain norms, and not to be present in certain places. These rules receive written approval from the local people, institutions and city officials. The requirement is addressed to women only, and relates to the external appearance that is required of them, or to the place in which they may not be present. The signs present an explicit demand that imposes upon women the obligation to dress in accordance with a particular dress code as a condition for permission to pass through the places in which they are located. It may, in fact, be said that they constitute an expropriation of the public domain from women, converting it into private domain, while applying social pressure and infringing the autonomy and security of women. In such cases, therefore, the local authority has a duty to consider the said harm, act diligently to remove the signs, and also take action in accordance with the existing law against those who are responsible for their placement.

Moreover, to the extent that there is a concern about violence and disturbance of the peace due to action to remove the signs, the authority has a duty to ask the Israel Police for help with security, and to act in “real time” to restore order while exercising its relevant powers of enforcement. Indeed, the local authority may set an order of enforcement priorities, and as a rule, there is no room to interfere in its discretion when it has considered the benefit as opposed to the harm in certain enforcement activity, and decided ultimately to take other effective steps to achieve the appropriate purpose. At the same time, the action of the local authority must accord suitable weight to the severe breach of human rights caused by the placement of the signs described in the Ministry Report.

And now, a few preliminary words about the need for compliance with judicial orders.

The Rule of Law and Compliance with Judicial Orders

40.       The courts have ruled that the effectiveness of the rule of law is tested, inter alia, by the ability of the governing authorities to enforce judicial decisions and orders. Non-compliance with the orders of the court is a violation of the rule of law, and undermines the democratic foundations upon which society is built. For the purpose of dealing with the possibility of such violation, the courts were given power to employ certain means in order to ensure that the non-complier would eventually comply with the orders of the court that had been violated (see: CrimA 517/06 Boaz Manor v. KPMG Inc. [6] (hereinafter: Manor)). The process of preventing contempt of court is therefore essential to instill in society an awareness of the duty to respect the law and the orders of the judicial system in order to protect the status of the judiciary. From a broad perspective, the duty to enforce judicial orders is one of the distinguishing features of a free and democratic regime (Manor case; CrimA 126/62 Dissenchik v. Attorney General [7] , 179).

41.       In a different vein: the contempt of court process under sec. 6 of the Ordinance is a special one, which belongs in the “twilight zone between civil procedure and criminal procedure” (CrimA 519/82 Greenberg v. State of Israel [8](hereinafter: Greenberg); Manor case). The purpose of this process is to bring about compliance with the judicial order, and take it from the potential to the actual by means of a fine or imprisonment (CrimApp 4445/01 Gal v. Katzovshvili [9]). At this point it should be stressed that the contempt of court process is not essentially a punitive one; the measure that is applied by virtue of this process is in the nature of compulsion to perform an act, or to desist from an act, and it is not concerned with attaching a punitive taint to the person violating the order (LCrimA 3888/04 Sharbat v. Sharbat [10], 57-58; CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [11]; LCrimA 48/98 Ezra v. Zelezniak [12], 346; CA 371/78 Hadar Lod Taxis v. Biton [13], 239-40).

Thus, the contempt of court process is a harsh enforcement process, whose ramifications, by way of imposition of an ongoing fine or imprisonment, may cause harm. The ongoing fine is liable to cause serious harm to the pockets and the property of a person, and imprisonment constitutes real harm to a person’s liberty – basic rights that are anchored in Basic Law: Human Dignity and Liberty. As such, enforcement measures under the Ordinance must be exercised with moderation, as the exception, and they must be confined to situations in which all other measures have been exhausted and have not helped, and all that remains is recourse to the process of contempt of court in order to ensure the enforcement of a judicial order (see: Manor case [6]; Greenberg case [8], at 192).

We shall now proceed from a review of the relevant normative rules to their application in the present case.

From the General to the Specific

42.       In the agreed judgment, the Appellants undertook, inter alia, to exercise all the enforcement powers available to them by law for the purpose of removing the signs that are the subject of the appeal, as well as other signs that are similarly unlawful. In addition, the Appellants agreed to ensure that enforcement measures would be adopted in a continuous and immediate manner, and that they would be repeated if the signs that had been removed were replaced. Moreover, this would be given high priority by the Municipality (see: secs. 3 and 5 of the consent judgment).

From the picture that emerges in the present matter, it is evident that the Appellants did not fully comply with the consent judgment, and they did not exercise all the enforcement powers available to them in order to remove the signs. In this regard, it should be stressed that at the end of the hearing held before us on Feb. 18, 2018, we ruled, further to the consent judgment, that the Appellants must “install seven cameras in the neighborhood in which there are violations, the budget for which was approved for the Municipality by the Ministry for Public Security and the Israel Police (in the framework of the project “City Without Violence”).” Clearly, installation of the cameras at the friction points constitutes an effective means of enforcement that allows for the identification of those violating the law in order to bring them to justice. As stated, the Ministry approved a budget for the Municipality for installing seven security cameras, but this has not yet been executed. From the updating reports submitted by counsel for the parties after the said decision was handed down it transpires that despite the undertakings to which the Appellants committed themselves with respect to installation of the cameras, no camera has been installed in the trouble-prone areas. As such, no option remains but to resort to the process of contempt of court in order to ensure enforcement of the said undertakings.

 Summary

43.       In exercising the powers of enforcement that it has been given, a local authority, like every governmental body, must bear in mind the need to protect the basic rights of every person, and to do all that is possible to put an end to the infringement of these rights (see: secs. 4, 11 of Basic Law: Human Dignity and Liberty). In the present case, beyond the expectation from the Appellants to act to eradicate the phenomenon of the signs, the Appellants also committed to do so several times, both in the framework of the consent judgment and in the hearings in the Court, as well as in the decisions that followed.

Regrettably, despite the serious violation of the basic rights of women, and despite the undertakings to which the Appellants committed themselves and which were given binding force of a consent judgment or of judicial decisions, the city of Beit Shemesh is still rife with unlawful signs, stickers and inscriptions. We cannot accept this grave state of affairs. The words of our colleague Justice Danziger in the Kol Barama  case [1] are apt here:

This is an illegitimate, unworthy phenomenon that has been describes as one that “delivers a mortal blow to human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], at 658-659), and it is a gross violation of the basic, fundamental rights of women. Moreover, the exclusion of women also has the potential of instilling a conception that the public domain belongs to “men only”, and consequently, of perpetuating gender-driven gaps in status and behaviors that by their very nature humiliate, degrade and debase women. This is particularly evident when women are forced to turn to the authorities and the courts for a declaration that they are “permitted” to execute basic acts in the public sphere, and clearly the harm that this involves is not limited only to their individual matter, but involves injury to society as a whole… [at para. 25].

44.       It is indeed evident that the Appellants took partial action in various ways in their attempt to comply with the court orders, but the reality proves that the measures that they adopted were insufficient. Since the Appellants have refrained to date from installing the seven cameras in the neighborhood in which there have been disturbances, and from again removing the signs that were taken down but replaced, the action that they have taken cannot be regarded as full implementation of the consent judgment and of the undertakings that followed, which were anchored in the decisions of this Court.

45.       Thus, in the event that the seven cameras are not installed in the neighborhoods in which there are breaches by Dec. 31, 2018, and in the event that the prohibited signs are not taken down by that date, I propose to my colleagues that the appeal before us be deemed as denied from that date on. On the other hand, if the Appellants act as stated by the above date, then bearing in mind the efforts made by the Appellants to date, and taking into account their compliance with the commitments they undertook (even if belatedly), the fines that were imposed upon them and that accumulated as of Feb. 18, 2018 and thereafter will be cancelled retroactively.

In addition, should the Appellants not comply with what is demanded of them here by Dec. 31, 2018, the Respondents will be permitted to renew the contempt proceedings in the Jerusalem District Court, and demand enforcement of the orders that were imposed by additional means, together with the fines.

46.       In conclusion, I would express the hope that the exclusion of women in the city of Beit Shemesh, the concern of these proceedings, will cease, and that the signs and the events described in this judgment will become a thing of the past.

 

Justice (emer.) U. Shoham

I concur.

 

Justice D. Mintz

I concur.         

 

Decided in accordance with the opinion of Deputy President H. Melcer

23 Heshvan 5779 (Nov. 1, 2018)

 

 

 

 

 

 

 

HCJ 4466/16

HCJ 8503/16

      HCJ 285/17

HCJ 6524/17

 

 

Petitioners in HCJ 4466/16:	Muhammad Alian and 6 others
Petitioners in HCJ 8503/16:	Yousef Abd A-Rahim Abu Saleh and 3 others
Petitioners in HCJ 285/17:	Sabih Abu Sabih
Petitioners in HCJ 6254/17:	Mohammad Ahmad Qunbar
	v.
Respondents:	1. Commander of IDF Forces in the West Bank
	2. Israel Police
	3. Office of the State Attorney
	4. State of Israel

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice Y. Danziger, Justice N. Hendel, Justice G. Karra

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel, (Oct. 1, 2008)

[2]        HCJ 6063/08 Shahar v. Government of Israel, (July 8, 2008)

[3]        HCJ 5856/08 Farhangian v. Government of Israel, (July 6, 2008)

[4]        HCJ 914/04 Victims of Arab Terror International v. Prime Minister, (Jan. 29, 2004)

[5]        HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel, IsrSC 54(1) 8 (2000)

[6]        HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs, (April 21, 2010)

[7]        HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region, IsrSC 58(3) 373 (2004)

[8]        HCJ 2717/96 Wafa v. Minister of Defense, IsrSC 50(2) 848 (1996)

[9]        HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43 (2) 529 (1989) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-district-commander]

[10]      HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister, (Feb. 17, 2005)

[11]      LCA 2558/16 A. v. Pensions Officer – Ministry of Defense, (Nov. 5, 2017)

[12]      CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh, (June 27, 2011)

[13]      HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon, IsrSC 49(5) 582 (1996)

[14]      HCJ 6824/07 Manaa v. Israel Tax Authority, IsrSC 64(2) 479 (2010)

[15]      HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion, (Oct. 19, 2009)

[16]      HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security, IsrSC 58(2) 746 (2004)

[17]      HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel, IsrSC 53(4) 817 (1999) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-israel]

[18]      HCJ 5128/94 Federman v. Minister of Police, IsrSC 48(5) 647 (1995)

[19]      HCJ 355/79 Katlan v. Israel Prison Service, IsrSC 34(3) 294 (1980) [https://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[20]      CrimA 40/58 Attorney General v. Ziad, IsrSC 12 1358 (1958)

[21]      LCA 993/06 State of Israel v. Dirani, (July 18, 2011)

[22]      HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp., (Oct. 29, 2008)

[23]      HCJ 3114/02 MK Barake v. Minister of Defense, IsrSC 56(3) 11 (2002) [https://versa.cardozo.yu.edu/opinions/barake-v-minister-defense]

[24]      HCJ 7583/98 Bachrach v. Minister of the Interior, IsrSC 54(5) 832 (2000)

[25]      HCJ 6195/98 Goldstein v. GOC Central Command, IsrSC 53(5) 317 (1999)

[26]      HCJ 3933/92 Barakat v. GOC Central Command, IsrSC 46(5) 1 (1992)

[27]      HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, (Dec. 5, 2007)

[28]      HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police, (Oct. 8, 2017)

[29]      HCJ 962/07 Liran v. Attorney General, (April 1, 2007)

[30]      HCJ 693/91 Efrat v. Director of the Population Registry in the Ministry of Interior, IsrSC 47(1) 749 (1993)

[31]      HCJ 1075/98 State of Israel v. Oppenheim, IsrSC 54(1) 303 (2000)

[32]      CrimA 2013/92 State of Israel v. Jose, IsrSC 48(2) 818 (1994)

[33]      CA 421/61 State of Israel v. Haz, IsrSC 15 2193 (1961)

[34]      HCJ 7803/06 Abu Arfa v. Minister of Interior, para. 46 (Sept. 13, 2017)

[35]      LCA 3899/04 State of Israel v. Even Zohar, IsrSC 61(1) 301 (2006)

[36]      CA 524/88 "Pri Haemek" – Cooperative Agricultural Society Ltd. v. Sdeh Ya'akov – Workers Cooperative Village of Hapoel Hamizrachi for Agricultural Cooperative Settlement Ltd., IsrSC 45(4) 529 (1991)

[37]      HCJ 6807/94 Abbas v. State of Israel, (Feb. 2, 1995)

[38]      HCJ 4118/07 Hanbali v. State of Israel, (Aug. 30, 2015)

[39]      HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[40]      HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[41]      HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank, (July 15, 2012)

[42]      HCJ 5887/17 Jabareen v. Israel Police, (July 25, 2017)

[43]      HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank, (Jan. 29, 2017)

[44]      HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area, (Dec. 7, 2016)

[45]      HCJ 2204/16 Alian v. Israel Police, (May 5, 2016)

[46]      HCJ 2882/16 Awisat v. Israel Police, (May 5, 2016)

[47]      HCJ 7947/15 A. v. Israel Defense Forces, (Dec. 16, 2015)

[48]      CrimFH 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [https://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]

[49]      HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-government]

[50]      HCJ 7957/04 Mara'abe v. Prime Minister of Israel, IsrSC 60(2) 477 (2005) [https://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-israel]

[51]      HCJ 2056/04 Beit Sourik Village Council et al. v. Government of Israel, IsrSC 58(5) 807 (2004) [https://versa.cardozo.yu.edu/opinions/beit-sourik-village-council-v-government-israel]

[52]      HCJ 698/80 Qawasmeh v. Minister of Defense, IsrSC 35(1) 617 (1980)

[53]      HCJ 4764/04 Physicians for Human Rights v. Commander of the IDF Forces in Gaza, IsrSC 58(5) 385 (2004) [https://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-commander-gaza]

[54]      HCJ 168/91 Morcus v. Minister of Defense, IsrSC 45(1) 467 (1991)

[55]      Abu Hdeir v. Minister of Defense, (July 4, 2017)

[56]      HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank, (2015)

[57]      CFH 5698/11 State of Israel v. Dirani, (Jan. 1, 2015)

[58]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[59]      LCrimA 10141/09 Ben Haim v. State of Israel, (March 6, 2012)

[60]      HCJ 337/81 Mitrani v. Minister of Transport, IsrSC 37(3) 337 (1983)

[61]      HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (Oct. 19, 2009)

[62]      CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality, (Aug. 18, 2011)

[63]      HCJ 693/91 Efrat v. Director of Population Registry, IsrSC 47(1) 749 (1993)

[64]      CrimA 6434/15 State of Israel v. Shavir, (July 4, 2017)

[65]      HCJ 6893/05 Levy v. Government of Israel, IsrSC 59(2) 876 (2005)

[66]      CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., (May 14, 2012)

[67]      HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(4) 617 (1989) [https://versa.cardozo.yu.edu/opinions/schnitzer-v-chief-military-censor]

[68]      HCJ 3037/14 Abu Safa v. Ministry of Interior, (June 7, 2015)

[69]      HCJ 2959/17 Alshuamra v. State of Israel, (Nov. 20, 2017)

[70]      CA 2281/06 Even Zohar v. State of Israel, (April 28, 2010)

[71]      HCJ 5290/14 Qawashmeh v. Military Commander, (Aug. 11, 2014)

[72]      HCJ 4597/14 Awawdeh v. Military Commander, (July 1, 2014)

[73]      HCJ 5376/16 Abu Hdeir v. Minister of Defence, (July 4, 2017)

[74]      HCJ 3132/15 Yesh Atid Party v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

[75]      CA 294/91 Jerusalem Burial Society v. Kestenbaum, IsrSC 46(2) 464 (1992)

[76]      HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd., (Oct. 29, 2008)

[77]      CA 7918/15 Doe v. Friedman, (Nov. 24, 2015) [https://versa.cardozo.yu.edu/opinions/doe-v-friedman]

[78]      HCJ 6167/09 Avni v. State of Israel, (Nov. 18, 2009)

[79]      CA 1835/11 Avni v. State of Israel, (Nov. 17, 2011)

[80]      HCJFH 3299/93 Wechselbaum v. Minister of Defence, IsrSC 49(2) 195 (1995)

[81]      HCJ 794/98 Obeid v. Minister of Defence, IsrSC 58(5) 769 (2001)

[82]      HCJ 6063/08 Shachar v. Government of Israel, (July 8, 2008)

[83]      HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[84]      HCJ 4491/13 Academic Center for Law and Business v. State of Israel, (July 2, 2014)

[85]      HCJ 1125/16 Mari v. Commander of Military Forces in the West Bank, (March 31, 2016)

[86]      HCJ 7040/15 Hamed v. Military Commander in the West Bank, (Nov. 12, 2015)

[87]      HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank, (Oct. 31, 2017)

[88]      HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister, (Oct. 17, 2011)

[89]      HCJ 9446/09 Karman v. Prime Minister of Israel, (Dec. 1, 2009)

 

Decisions of the European Court of Human Rights cited:

[90]      Sabanchiyeva v. Russia Judgment ECHR 38450/05 (6/6/2013)

[91]      Maskhadova v Russia Judgment ECHR 18071/05 (6/6/2013)

[92]      Pretty v. The United Kingdom ECHR 2346/02 (2002)

[93]      Pannulullo v. France ECHR 37794/97 (2001)

[94]      Girard v. France ECHR 22590/04 (2011)

[95]      Dodsbo v. Sweden ECHR 61564/00 (2006); Hadri-Vionnet V. Switzerland ECHR 55525/00 (2008)

[96]      Hadri-Vionnet v. Switzerland ECHR 55525/00 (2008)

 

 

 

 

JUDGMENT

 

Justice Y. Danziger:

The question before us is whether reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations) authorizes the Military Commander to order the temporary burial of terrorists in order to hold their corpses for the purpose of negotiations.

Background of the Petitions

1.         At the end of 2016, the State of Israel decided to update its policy on returning the corpses of terrorists to their families. The decision was made by the Government's Ministerial Committee on National Security Affairs (the State Security Cabinet), and recorded in its resolution:  "A Uniform Policy on Handling the Corpses of Terrorists" (B/171) (unclassified version) (January 1, 2017) (hereinafter: the Cabinet Decision). The Cabinet Decision was the first instance where a clear policy was enunciated on the issue of holding terrorists' corpses by the State for negotiation purposes. This policy determines that, as a general rule, terrorists' corpses are to be returned to their families under restricting conditions that would ensure that public order is maintained. However, two conditions to this rule were established, under which the corpses of terrorists would not be returned to the families, but be kept by the State of Israel in a temporary burial. The first exception was terrorists belonging to Hamas. The second concerned the bodies of terrorists who had carried out a terrorist act classed as "particularly exceptional". The State Security Cabinet thought it justified to hold on to these corpses specifically, as they might prove to have "special symbolic context", and keeping them might help the State of Israel reach an agreement on the exchange of corpses and prisoners held by enemies. The Cabinet's Decision was established as a general policy, while the actual implementation of the policy was delegated to the Military Commander in accordance with the authority granted to him by law, under reg. 133(3) of the Defence Regulations, to order the place and time for burying the dead.

 

2.         The Cabinet Decision was not made in a vacuum, but must be understood in context and in terms of its timing. Starting in early 2015, Israel faced a wave of terrorist attacks dubbed the "Intifada of the Individuals". This reality led the political echelon and the security establishment in Israel to make various decisions and, inter alia, also reconsider the policy on holding terrorists' corpses for negotiation purposes. Accordingly, the Cabinet undertook an administrative procedure, wherein it was presented with various professional opinions and assessments by political and security entities involved in contacts with enemies, including the Coordinator of POWs and MIAs in the Prime Minister's Office, the Israel Security Agency, the National Security Council, and the Israel Defence Forces. The senior lawyers at the Ministry of Justice also pondered the issue in a number of meetings. The 2004 position of then Attorney General M. Mazuz was also presented to the decision makers. According to the State, the position of Attorney General Mazuz was that terrorists' bodies should not be held based on an indefinite need to keep "bargaining chips" for some future negotiation, but that the possibility should not be excluded given special reasons for holding the bodies, including a concrete deal with an enemy for an exchange of corpses (hereinafter: the Attorney General's 2004 Decision).

 

3.         Since the Cabinet Decision was taken, the State of Israel has held a few dozen terrorist corpses in its custody. These were held by virtue of orders or decisions issued by the Military Commanders or police commanders. The large majority of corpses—more than 40—were returned to the terrorists' families in keeping with the rule laid down in the Cabinet's Decision. On the other hand, the minority of corpses, which the State claims fall under the exceptions defined in the Cabinet's Decision, were held by the State. At this point in time, nine terrorist corpses are held by the State of Israel. Seven were buried temporarily under orders issued by the Military Commander. Two have yet to be buried, after legal proceedings in their matter resulted in the issuance of interim orders preventing their burial. The Petitioners are family members of six of the terrorists whose corpses are currently held by the State of Israel: Fadi Ahmad Hamdan Qunbar, who carried out a terrorist attack at the Armon HaNatziv Promenade on January 8, 2017, murdering IDF soldiers Shira Tzur, Yael Yekutiel, Shir Hajaj and Erez Orbach of blessed memory, and injuring 18 more (HCJ 6524/17(; Muhammad Tra'ayra, who carried out a terrorist attack on June 30, 2016 in Kiryat Arba, murdering the girl Hallel Yaffa Ariel of blessed memory (HCJ 8503/16); Muhammad al-Faqiah, who participated in a terrorist attack on July 1, 2016, in which Rabbi Michael Mark of blessed memory was murdered and members of his family injured (HCJ 8503/16); Masbah Abu Sabih, who carried out a shooting attack on October 9, 2016, murdering Mrs. Levana Malihi and Police Sergeant First Class Yossef Kirma of blessed memory and injuring others (HCJ 285/17); Abd al-Hamid Abu Srur, who carried out a terrorist attack in a Jerusalem bus on April 18, 2016, injuring tens of people (HCJ 4466/16); and Rami al-Ortani, involved in an attempted terror attack  on July 31, 2016 (HCJ 8503/16).

 

            The State of Israel argues that holding these terrorist corpses might help reach a concrete deal for the exchange of corpses and prisoners with Hamas, which holds the corpses of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and holds Israeli civilians Avera Mengistu and Hisham a-Sayed.

 

            4.         To complete the factual picture, we would note that the State of Israel has transacted past deals with terrorist organizations for the exchange of prisoners and missing persons. A substantial part of the deals involved returning bodies of terrorists affiliated with the organizations in question as part of the "consideration" that the State of Israel "paid". An unclassified affidavit submitted by Head of the POW and MIA Department of the IDF Intelligence Directorate stated that in 1991, 1996, 1998, 2004, 2007 and 2008, the State of Israel concluded deals for the exchange of prisoners and missing persons with enemy organizations, in the context of which it handed over 405 bodies of dead terrorists, along with living detainees and prisoners. Within the framework of these deals, the State of Israel repatriated, among others, IDF fallen soldiers Samir Asad, Yossef Fink, Rahamim Alsheikh, Itamar Ilya, Benny Abraham, Omar Suwad, Adi Avitan, Gabriel Dawit, Ehud Goldwasser and Eldad Regev. These data only relate to deals transacted by the State of Israel with non-state terrorist organizations, not to deals concluded with enemy states at the end of Israel's wars and military campaigns.

 

The Parties' Arguments and the Proceedings

 

5.         The main argument in the petitions is that the State of Israel has no authority to hold the terrorists’ corpses. The Petitioners point to the absence of any arrangement under Israeli or international law authorizing the Military Commander to hold terrorists’ corpses for purposes of negotiation by way of temporary burial or any other way. Beside this key point, the Petitioners further argue that to hold terrorists’ corpses for negotiation purposes is a practice that disproportionately violates the dignity of the dead and that of the families seeking to bring them to burial, and one that constitutes collective punishment against the terrorists' families for no fault of their own.

 

6.         According to the State, the Military Commander does have authority to order the temporary burial of terrorists to be held for negotiation purposes. As the State sees it, reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the place where a person’s body is to be buried. This is also the basis for his authority to order the temporary burial of terrorists who were involved in terrorist attacks, for negotiation purposes. According to its position, this source of authority constitutes explicit, primary legislation in Israel's domestic law that suffices to allow the Military Commander to act. According to the State, this source of authority is also consistent with international law. The State adds that terrorists' corpses are being held for a proper purpose and proportionately, considering that this practice is meant to help bring back Israeli captives and missing persons.

 

7.         The proceedings were conducted in a number of stages. In brief, we held several hearings. The petitions were initially heard separately, before different panels, and were later joined into a single proceeding. At a certain point, interim orders were issued with respect to the two yet-unburied terrorists, as well as orders nisi in all the petitions. The State was given an opportunity to present its position in two separate response affidavits. In addition, the State submitted a number of updates and answers to questions addressed to it by the Court. By the end of the judicial proceedings, the scope of dispute was clarified, and the questions requiring decision, which I will discuss below, were defined.

 

Discussion and Decision

 

8.         As noted above, the central question to be decided in the petitions is whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order temporary burial of terrorist corpses with a view to hold them for negotiation purposes.

 

Preliminary note: On the relationship between the Cabinet Decision and the authority of the Military Commander, and on the requirement for a specific source of authority for the Military Commander's action

 

9.         As noted, the decision by State Security Cabinet was established as a general policy in the present matter, whereas its execution and implementation were delegated to the Military Commander under the authority granted to him, as argued, in reg. 133(3) of the Defence Regulations. This legal situation deserves discussion and a preliminary clarification.

 

10.       The Ministerial Committee on National Security Affairs (the State Security Cabinet), as we know, is responsible for shaping the government's policy on matters pertaining to the country's security and foreign relations. Its members include, among others, the Prime Minister, Minister of Defence, Minister of Justice, Foreign Minister, Minister of Public Security and Minister of Finance. The principal legal norms that regulate the Committee's activity are found in sec. 31(e) of Basic Law: The Government, in sec. 6 of the Government Law, 5761-2001, and in the Government Work Regulations. The areas covered by the Committee are decided by dedicated government decision. Currently, Decision 41 of the 34^th Government, "Ministerial Committee on National Security Affairs (The State Security Cabinet)" (May 31, 2015) states that the Committee may deal with a number of areas, including the State of Israel's security policy and foreign relations. Cabinet decisions have the same binding validity as government decisions, namely: they are decisions by the executive branch, not provisions that have normative status like a law enacted by the legislature. With that said, it should be clarified that decisions made by the Cabinet lie at the heart of the executive branch's prerogative, and the degree of judicial intervention therein is accordingly highly restrained and limited for the most part (see: HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel [1],  para. 3 ; HCJ 6063/08 Shahar v. Government of Israel [2], para. 4; HCJ 5856/08 Farhangian v. Government of Israel [3], para. 5; HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4], para. 2; HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel [5], 12).

 

11.       Policy decisions reached by the government via the State-Security Cabinet direct and obligate the branches of government. One such branch is the Israeli Military Government and its commanders. The military echelon and its commanders often implement orders in line with the policy laid down by the political echelon, serving as the long arm of the government in these cases. There is nothing wrong with that, as long as the actions of the military echelon and its commanders are legal per se. And note that the Military Commander, in exercising governmental powers, is required to implement the political echelon's policy, but in doing so remains subject to and committed to the principles of Israeli administrative law. Within this framework, he must act in accordance with the rules of administrative authority. As previously held: "The Military Commander is authorized, and even obligated, to act in the area under his command in a way consistent with the policy set by the government, provided that, as part of his discretion, he acts in accordance with the authority granted him under any law" (HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs [6], para. 15; and also see: HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region [7],  379; HCJ 2717/96 Wafa v. Minister of Defence [8], 855; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander [9], 537-538).

 

12.       We should make it clear that while the government often outlines the policy for the activity of the public administration, its decision does not supplant the need for the executive echelons to have sources of authority. In reality, the government often determines a general policy, which is then supposed to be carried out by administrative organs based on specific authority granted to them by law. The government formulates policy in some area—such as housing, security, support, pensions, education, etc.—but clearly not just any administrative agency acting under the government can undertake its implementation, but only those bodies vested with the authority to do so. Accordingly, it has been held, for example, that the government may decide that, as a matter of policy, it wants to release Palestinian prisoners within the framework of negotiations with enemies. Yet, it has been held that this policy does not supplant the need that action taken by administrative organs be in accordance with authority granted to them by law. It has been held that while the political echelon's authority still stands, "the authority to decide the release of prisoners before serving their full sentence is not the government's to make", but lies instead with others holding executive powers, among them the President of Israel and the Military Commanders. It was thus made clear that in order to order the release of Palestinian prisoners, it is not enough for government to set a policy, but that a given authority granted to the executive echelon must be exercised (HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister [10], [para. 3).

 

13.       The requirement for a specific source of authority for the action of the Military Commander derives from rule of law and the principle of administrative legality. Any administrative organ must operate within the confines of the authority granted it by law. This principle is the cornerstone of administrative law. It makes it incumbent upon administrative agencies to act according to the law, thus limiting the power of government and ensuring individual liberties. The administrative obligation that applies to the Military Commander to act by authority applies regardless of the nature and wisdom of his decision. Even "good" administrative action or action arising out of an "administrative need" can be found to be illegal in the absence of a source of authority (LCA 2558/16 A. v. Pensions Officer – Ministry of Defence [11], para. 37; CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh [12], para. 33; HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon [13], 587; Dahpne Barak-Erez, Administrative Law, vol. I, 97-98 (2010) (Hebrew); Baruch Bracha, Administrative Law, vol. I, 35 (1987) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 74-76 (2^nd ed., 2010) (Hebrew) (hereinafter: Zamir, Administrative Authority).

 

14.       When the administrative act infringes human rights, not only is the administrative entity required to point to a source of authority for its action, but the enabling provision must meet constitutional requirements. Inter alia, it must be anchored in primary legislation, in a special provision of law intended to permit the violation of the fundamental right. In addition, it must be clear, specific and explicit. This is what this Court has long held, and this principle was eventually even anchored in sec. 8 of Basic Law: Human Dignity and Liberty, which provides that a violation of basic rights protected under the law shall only be permitted "by virtue of express authorization in such law" (see: HCJ 6824/07 Manaa v Israel Tax Authority [14]; HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [15]; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [16], 762; HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel [17], 831 (hereinafter: the Public Committee case); HCJ 5128/94 Federman v. Minister of Police ]18], 653;  HCJ 355/79 Katlan v. Israel Prison Service [19]; CrimA 40/58 Attorney General v. Ziad [20]).

 

15.       In our case, the actions of the Military Commander involve a violation of human rights. This Court has often held that the right to human dignity also gives rise to the rights of the dead and their family members to bring the deceased to a proper, dignified burial, which will allow them to commune and commemorate. These rights have been recognized in the case law regardless of the identity of the deceased, even when they were terrorists or enemy soldiers. The background for this is the general convention that human rights are granted to all people as such, even if they fall under the definition of "enemy". For our purposes, it is indeed an accepted convention that even the most abhorrent murderer has the right to burial, and his family has a right to bury him. This convention may raise difficult emotional responses, especially in those who have suffered from the deceased’s actions, but it is necessary in a regime that respects human rights, as often explained in the case law (see: LCA 993/06 State of Israel v Dirani [21], para. 54; HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp. [22], paras. 190-194; HCJ 3114/02 MK Barake v. Minister of Defence [23], (hereinafter: the Barake case); HCJ 7583/98 Bachrach v. Minister of the Interior [24], 841-842; HCJ 6195/98 Goldstein v. GOC Central Command [25], 330 (1999); HCJ 3933/92 Barakat v. GOC Central Command [26], 6 (hereinafter: the Barakat case); Aharon Barak, Human Dignity: The Constitutional Right and Its Daughter Rights, vol. I, 381-383 (2014) (Hebrew) [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)].

 

16.       To complete the picture, we should note that the State did not dispute the necessity that the action by the Military Commander in this case be based on some specific authority granted by explicit, primary legislation. The State agreed with this, and did not raise any alternative argument. In particular, the State did not argue that the Military Commander's action in our case could be based on residual or inherent powers of the government. Note, in this context, that it is possible to imagine situations in which the government might lay down some general policy, where it would hold some of the authority involved in its execution as inherent power. In these situations, there may be scenarios where the policy would be implemented by an administrative organ, as the long arm of government, even in the absence of a specific source of authority in the law for its action (see sec.  3 of Basic Law: The Government; HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, [27], para. 15; "The Authority to Enter a Contractual Undertaking on Behalf of the State", Attorney General’s Guidelines 6.2000 (May 15, 2003); Zamir, Administrative Authority, 423). However, these are concrete, well-defined situations, whereas in most situations—especially those involving the violation of human rights, as in our case—government policy cannot be executed based on residual powers granted to the government. As noted, the State never even raised such an argument in this case.

17.       To summarize the point: The decision by the State Security Cabinet was established as a general policy, but its execution and implementation were delegated to the Military Commander under the authority granted to him by law. In this legal state of affairs, we must examine whether the law does have a provision authorizing the Military Commander to implement and execute the Cabinet's policy. Furthermore, if an enabling provision of law exists, we would then also have to examine whether it is anchored in explicit, specific primary legislation, seeing as the actions that the Military Commander seeks to carry out violate human rights,.

 

Does Regulation 133(3) of the Defence Regulations constitute an explicit, specific primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes?

 

18.       Regulation 133(3) of the Defence Regulations states as follows:

 

Inquests, etc.

133.    (1)  (Cancelled) (2)  Notwithstanding anything contained in any law, where a member of the Government's forces has died in Israel in any manner or in any circumstances whatsoever, it shall be lawful for an Army Medical Officer to issue a certificate of death of such person, and such certificate, upon being countersigned on behalf of the General Officer Commanding, shall be full and sufficient authority for the burial of the body of such person. (3)  Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

19.       Answering the question whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to make a decision on the temporary burial of terrorist bodies for negotiation purposes requires some interpretation. While the starting point for the interpretation is the regulation's language, it is not, as we know, the end point, given that among the existing linguistic possibilities, the interpreter must choose the one that best fulfills the purpose of the law. The purpose of legislation is the goals, values, policy, social functions and interests that the legislation is meant to fulfil. The purpose of legislation is a normative concept, which consists of the subjective and objective purposes of the legislation. The subjective purpose is the specific goal that the legislature sought to achieve through the law ("the legislative intent"). The objective purpose is the one that the legislation was meant to realize in our legal system as the system of a democratic society. Both purposes can be deduced from the language of the law, its legislative history and other external sources (HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police [28], para. 30; HCJ 962/07 Liran v. Attorney General [29], paras. 33-34; HCJ 693/91 Efrat v. Director of the Population Registry in the Ministry of Interior {30], 764 (1993); Aharon Barak, Interpretation in Law: Interpreting Legislation (1992) Hebrew); Aharon Barak, Purposive Interpretation in Law (2003) Hebrew) (hereinafter: Barak, Purposive Interpretation) [English edition 2011]).

20.       Looking at the language of reg. 133(3) of the Defence Regulations, one is led to conclude that it cannot be considered an "explicit" source of authority for the Military Commander's action. The regulation's language refers to a situation where the security forces are in possession of a corpse. In this situation, the regulation authorizes the Military Commander to issue a burial order, and order who will bury the corpse, and at what place and hour it will be buried. While the regulation grants the Military Commander authority to issue such orders with respect to the body "of any person", it does not specify the circumstances under which  the authority is to be exercised. It does not make explicit whether the Military Commander's authority to make decisions concerning the burial of dead persons applies only in "times of emergency", or whether the authority is meant to exist in other contexts as well. It does not make clear whether the Military Commander's authority to make decisions on burial only exists when a dead person cannot be brought to burial in the acceptable, ordinary way, or in other circumstances as well. Furthermore, and this is the crux of our issue: The language of the regulation does not address the question of whether the authority granted to the Military Commander to order a burial also applies to temporary burial for negotiation purposes, which in no way constitutes burial in the usual sense, but a holding of the body, a holding by burial, where there can be no doubt that its circumstances and purpose differ from a classic, normal act of burial. In this context, the language of the regulation is vague and cannot be considered an explicit source of authority.

21.       Examining the purpose of reg. 133(3) of the Defence Regulations leads to the conclusion that the regulation was never meant to authorize the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. As we will explain, when one traces the legislative history of the regulation, examines its internal and external logic, applies the presumptions of purposive interpretation, and looks at Israeli law and international law as they relate to issues similar to the holding of corpses, the result is a sharp, clear picture: The Mandatory legislator, followed by the Israeli one, never envisaged a situation relating to the temporary holding of terrorist bodies for negotiation purposes. They never imagined that the Military Commander would exercise his authority in such circumstances. And in any case, reg. 133(3) does not include the balances required between the conflicting interests and rights in this area. The regulation also makes no reference to necessary information related to exercising the authority in the unique situation of the temporary burial of corpses for negotiation purposes, among them: circumstances that would justify the temporary burial of a body; how long a body may be held in temporary burial; the authority and timing for disinterment after a deal is struck; the requirements for documentation and registration of the body and the burial; obligations to transmit information regarding the body, etc. The regulation is deafeningly silent on all the above, and cannot be taken to imply any intent by the legislator to grant the Military Commander authority and power to address them or make decisions in that regard.

22.       On examining the legislative history of reg. 133(3) of the Defence Regulations, one finds that it is, in fact, a later incarnation of reg. 19C of the Emergency Regulations, 1936 (hereinafter: the 1936 Emergency Regulations). Chronologically following the regulation's evolving formulation suggests that the regulation had seen a number of transformations and changes. In its historic formulation, as it appeared in the 1936 Emergency Regulations, the regulation mentioned a burial authority under very specific circumstances, where a person was hanged in one of the two central prisons in the cities of Acre and Jerusalem. With regard to these circumstances, the regulation stated, as published in the Hebrew Official Gazette, stated: "Notwithstanding anything stated in any Ordinance or law, the District Commissioner may order that the body of any person who has been hanged at the Central Prison in Acre or the Central Prison in Jerusalem shall be buried in the cemetery of the community to which such person belongs…", and in its English-language formulation, as published in the official gazette in the English language, the Regulation similarly stated that: "Notwithstanding anything contained in any Ordinance or law it shall be lawful for the District Commissioner to order that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such person belongs…". The title of the Regulation at the time was "Death certificates, inquests and burials".

            Then, in 1945, reg. 19C was copied from the 1936 Emergency Regulations into reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the 1945 Emergency Regulations). The language of the regulation remained the same, except for minor changes, but its location was moved to the part devoted to "Miscellaneous Provisions". In addition, the title of the Regulation was shortened and re-defined as "Inquests, etc." A few years later, in January 1948, the Regulation underwent its last revision, fixing it in its current version (hereinafter: the 1948 Defence Emergency Regulations). As part of this revision, the High Commissioner announced his decision to change the regulation such that the District Commissioner would be replaced by the Military Commander as the administrative organ vested with the authority, and such that his scope of authority would be extended to allow him to order, inter alia, the burial of any person's dead body—i.e. not just a "person who has been executed at the… prison"; and anywhere, i.e. not just in the "cemetery of the community". The new, updated version of reg. 133(3) of the Defence Regulations in Hebrew is the one quoted above. The updated regulation was officially published by the High Commissioner in English, as follows: "Notwithstanding anything contained in any law it shall be lawful for the Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations".

            (For the official publications of the regulation's text, both in Hebrew and in English, from its appearance in the 1936 Emergency Regulations, through its appearance in the 1945 Defence Regulations, to its appearance in the 1948 Emergency Regulations, see: Supplement No. 2 to the Palestine Gazette, issues No. 584, 753 and 825 (of 19 April 1936, 27 January 1938 and 13 October 1938 respectively) (Palestine (Defence) Order In Council, 1931, 1937) (Regulations made by the High Commissioner under Articles IV, 6 and 10); Supplement No. 2 to the Palestine Gazette issue No. 1442 (of 27 September 1945) (The Defence (Emergency) Regulations, 1945); Supplement No. 2 to the Palestine Gazette, issue no. 1643 (of 22 January 1948) (Palestine (Defence) Order In Council, 1937) (Regulations made by the High Commissioner under Article 6) (Defence (Emergency) Regulations, 1948). We would note that the fact that the text of the regulation was also published from the outset in the Hebrew language in the official Mandatory publications makes interpretation easier, as it obviates the need to trace translation processes; compare: HCJ 1075/98 State of Israel v. Oppenheim [31], 326; CrimA 2013/92 State of Israel v. Jose [32], 825-826; CA 421/61 State of Israel v. Haz [33], 2206).

            Examining the legislative history of reg. 133(3) of the Defence Regulations reveals that never once in its process of enactment was the possibility contemplated that the Military Commander would be able to order the temporary burial of a corpse for negotiation purposes. Rather, the existing data are more consistent with the conclusion that the historical purpose of the regulation was to handle burials primarily in situations where objective difficulties arose that made it hard to return the body of the dead to the relatives. And note: at the outset, the regulation authorized the District Commissioner to order the burial of the bodies of prisoners of the Mandatory regime who were executed at the central prisons in Jerusalem and Acre. Naturally, these prison executions made it necessary to regulate the handling of corpses. Indeed, the Mandatory authorities followed clear rules in this regard: The rule was to hand over the body of those executed to their relatives to be buried normally as per the dead person's customs. At times, however, an objective obstacle arose to transferring the dead person's body to his relatives. Such was the case, for example, when the relatives did not claim the body, whether because they had no knowledge of the ill fate that had befallen him (for example, because he was an illegal immigrant), or due to their fear of turning to the Mandatory authorities. In these cases, the Mandatory legislator sought to guarantee that the dead person would be brought to burial under proper, dignified arrangements, as consistent as possible with his customs and practices (reg. 19C of the 1936 Emergency Regulations instructed that the deceased should be buried "in such cemetery of the community"). For this purpose, the Mandatory administrative organs were granted various powers. Thus, reg. 302 of the Prison Regulations, 1925, stated that the Prisons Commissioner would be allowed to order how a body should be handled. Similarly, reg. 19C of the 1936 Emergency Regulations, later copied into the 1945 and 1948 Emergency Regulations, authorized the District Commissioner to order the burial of the corpse. This is how these things are described by Dr. Joshua Caspi in his comprehensive article Prisons in Palestine during the Mandate Period, 32 Cathedra  Quarterly - A Journal for the History of Eretz-Israel, (Yad Ben Zvi), 171-172 (1984) (Hebrew):

The hanging was usually carried out in secret, at night or in the early morning, when the other prisoners were sleeping, by 08:00 AM at the latest (reg. 298). Following the hanging, the physician would check whether the convict had already expired. The body was left hanging for one hour and then handed over to relatives for burial. If the relatives did not want the body, it was buried by the authorities (Regulation 302) (Emphasis added – Y.D.).

As noted, the regulation's historic context is more in keeping with the conclusion that it was primarily meant to manage exceptional situations where the corpse could not be transferred to the person's relatives. This conclusion also appears logical in relation to the regulation's later versions. While the wording of the regulation did undergo changes over the years, it can be reasonably assumed that the Mandatory legislator did not seek to change the rule whereby the body of the deceased person should be handed over to its relatives, if possible. This also holds true for the wording of the 1948 Regulation. While the wording of the regulation was changed at the time, and the holder of the authority was changed, it stands to reason that, at this point too, the regulation mainly targeted situations where the security forces had a corpse that, for some reason or another, could not be delivered to the dead person's relatives, whether because it was not possible to identify the dead individual, because no one came forward to claim the body, or because it was held by the security forces during confrontations. In these situations, where it was not clear where and how the body should be buried, the Military Commander was granted authority to make decisions, based on the understanding that he was the one in charge "on the ground" who could ensure a proper, dignified burial. It is hard to accommodate an inverse conclusion whereby the purpose of the authority was to give the Military Commander "general" power to order the burial of dead individuals across a large variety of circumstances, even when their corpses could be handed over to their families. In any cast, and this is the crux of the matter, even if we assume that the historic purpose of the regulation was to grant the Military Commander "general" power over burials, it is hard to adopt a conclusion that the intention was to also allow him to issue orders in a situation involving the temporary burial of terrorist bodies for negotiation purposes.

23.       The location and context of reg. 133(3) of the Defence Regulations within the fabric of the legislation likewise support the conclusion that the power was not meant to authorize the Military Commander to order the temporary burial of terrorist bodies in order to hold them for negotiation purposes. Regulation 133(3) appears under part XIV of the Defence Regulations, devoted to "Miscellaneous Provisions", as one of several secondary regulations. The burial powers granted therein do not constitute a unique, specific and complete legal arrangement dedicated to the holding of enemy bodies for negotiation purposes. One might have expected that a legal system desirous of adopting a practice of holding terrorist bodies for some reason or another would do so by means of a unique, concrete legislative arrangement wholly devoted to regulating the matter. While reg. 133(3) of the Defence Regulations grants the Military Commander – at most – broad "general" powers from which one might derive action, even the State does not dispute that it does not represent a dedicated legal arrangement devoted to regulating the temporary burial of terrorist bodies. The fact that reg. 133(3) is at most a "general" arrangement under "Miscellaneous Provisions" undermines the State's claim that it should be seen as an "explicit" legislative arrangement. Parenthetically, it should be noted—and we shall return to this later—that there are, in fact, few countries in the world whose legal code includes a dedicated legislative arrangement to allow the holding of terrorist bodies, and even those countries that have decided to include such an arrangement in their legal code have done so by way of a dedicated, specific legislative arrangement, radically different from the one in the Defence Regulations.

24.       Implementing the accepted interpretive presumptions as to purpose in the Israeli legal system also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be construed to grant the Military Commander broad authority to order the temporary burial of terrorist bodies for negotiation purposes. Inasmuch as the provisions of the arrangement violate human rights, the interpretative rule that a legal provision should be interpreted narrowly and strictly applies. Moreover, there is the purposive presumption that the goal of a legal provision is to inflict the least harm to human rights. In our case, as noted, the language of the regulation does not establish explicit authority to order the temporary burial of terrorists for negotiation purposes. Under these circumstances, the regular rules of interpretation relating to the protection of human rights obtain (for the rules and interpretative presumptions relating to the protection of human rights, see: Barak, Purposive Interpretation, 224; HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 46;  LCA 3899/04 State of Israel v. Even Zohar [35], 317; CA 524/88 "Pri Haemek". v. Sdeh Ya'akov [36], 561). Another interpretative presumption that might apply in our case has to do with the compatibility of domestic law with international law (see Barak, ibid). As I shall explain in detail, the present case raises serious questions about the relationship between domestic Israeli law and the international humanitarian law treating of armed conflicts, and international human rights law.

25.       An examination of the case law of this Court in similar contexts also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be interpreted as the State would have it. We would first note the absence of any prior ruling directly concerned with the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of the regulation. While it was previously held that the regulation might constitute a source of authority for his decision to order a funeral to take place at a specific hour (the Barakat case [26]), and the Court even sanctioned a decision not to return to Hamas the body of a terrorist until information about the burial place of a fallen IDF soldier was provided (HCJ 6807/94 Abbas v. State of Israel [37]). However, the aforementioned rulings did not take up the question of the Military Commander's authority to order the temporary burial of bodies for negotiation purposes. It should be further noted that the State had previously presented its position on reg. 133(3) of the Defence Regulations, but the Court was not required to express its opinion since the petitions became moot (See: HCJ 4118/07 Hanbali v. State of Israel [38]; HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria [39]); HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria [40]; HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank [41]). In any case, despite the absence of rulings directly pertaining to the question of the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of reg. 133(3) of the Defence Regulations, important debates held in similar contexts can be found in the case law.

            An examination of Israeli case law shows that most petitions similar to this one addressed situations where terrorist bodies were held in order to maintain public order. The State's position in those situations was not based on the Cabinet Decision or on reg. 133(3) of the Defence Regulations. The State argued that returning terrorist bodies to their families might lead to riots and to mass funerals that would lead to overt glorification of and identification with the acts of the terrorists, and become a locus of incitement (for recent examples, see: HCJ 5887/17 Jabareen v. Israel Police, [42] (hereinafter: the Jabareen case); HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank [43]; HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area [44]; HCJ 2204/16 Alian v. Israel Police [45]; HCJ 2882/16 Awisat v. Israel Police [46]; HCJ 7947/15 A. v. Israel Defence Forces [47]). The situations in which terrorist bodies are held in order to maintain public order raise questions that are distinct from those in our case, and moreover, as noted, the examination mostly concerns other sources of authority. In any case, and this is the main point, the decisions in those situations also emphasized that terrorist bodies could not be held in the absence of a specific source of authority, anchored in explicit primary legislation.

            Of particular importance in this context is the judgment recently rendered in the Jabareen case [42], which stated that the Israel Police was not authorized to hold terrorist bodies as a condition for obtaining their families' consent to the conditions under which the funerals would take place. It was made clear that, for the purpose of holding the corpses, the Israel Police was obligated to point to a specific dedicated source of authority anchored in explicit primary legislation. The Police's position in the proceedings was that secs. 3 and 4A of the Police Ordinance [New Version], 5731-1971 constitute such an explicit source of legislation. The Police explained that sec. 3 of the Ordinance granted it broad authority to engage in the maintaining of public order and the safety of persons”, and that sec. 4 of the Ordinance authorized every police officer “to undertake any action that is necessary” to prevent serious harm to the safety of life and property. As the Police saw it, these general, broad powers were sufficient to allow it to hold on to terrorist bodies. As noted, this position was rejected by the Court for the same reason stated above in regard to reg. 133(3) of the Defence Regulations. It was held that "this position of the Police is inconsistent with the requirement for 'explicit' authorization in all that concerns an action that violates basic rights", since the existing sections in the Police Ordinance are general and were not intended to grant the police specific powers in regard to holding corpses (ibid, para. 9). Consequently, it was held that the Police would return the terrorists' bodies to their families. As noted, despite the difference in circumstances between the Jabareen case and the case before us, the reasoning regarding the authority requirement is identical.

            A similar ruling on the requirement for a source of authority, from which an analogy can be drawn to our case, was rendered in CrimFH 7048/97 Does v. Minister of Defence [48] (hereinafter: the Bargaining Chips case). In that case, the question debated was whether sec. 2(a) of the Emergency Powers (Detention) Law, 5739-1979, constituted a source of authority for holding live detainees as bargaining chips. This Court ruled by majority—per Justices A. Barak, S. Levin, T. Orr, E. Mazza, I. Zamir and D. Dorner, and contrary to the dissenting opinions of Justices M. Cheshin, Y. Kedmi and J. Turkel—that the answer to the question was negative. It was explained that, indeed, the language of the Detention Law gave the Minister of Defence general, broad authority to detain an individual "on grounds of national security or public safety" in a way that might also accommodate a reading that he may arrest detainees as bargaining chips. However, it was held that such a possibility "did not come up for discussion, and was not, in fact, examined, by those dealing with the tasks of legislation" (ibid, 739). In those circumstances, it was held that it was not possible to extend the boundaries of the authority and interpret the provisions of the Detention Law as if they were meant to grant detention powers in such situations as well. It should be noted that the ruling in the Bargaining Chips case was also rendered with the prospect of finalizing deals for swapping prisoners and missing persons floating in the background. Even so, and despite the understandable human difficulty, the ruling was that, in the absence of a dedicated source of authority in explicit primary legislation, live detainees could not be held as bargaining chips. This was aptly summarized by Deputy President S. Levin in his ruling: "It would be naïve and even dangerous to deprive the State of appropriate means for freeing its fighters.  However, the statute has not placed such a tool at its disposal. In my opinion, in order to place it as its disposal,  a different source or grounds for its authority is required in primary legislation for a matter that prima facie has significance of a primary nature. " (ibid, 753).

            It is true that  drawing an analogy from the ruling in the Bargaining Chips case to our case is not simple. There is no denying that holding live detainees—a decision that violates the right to freedom in the narrow, nuclear sense—carries different weight than a decision to hold corpses. We should also bear in mind is that the judgment in the Bargaining Chips case also included a minority opinion that cannot be ignored, according to which nothing prevents deriving specific authority to hold live detainees  from the general authority in the Detention Law, in circumstances where the other side to a conflict also holds prisoners and missing persons. In addition, we have before us various critiques of the judgment published in the professional literature, as well as academic discussions on the subject (see and compare: Emanuel Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, 287-259 (2004) (Hebrew) [published in English as: The Struggle of Democracy against Terrorism: Lessons from the United States, the United Kingdom, and Israel (2004)]; Eitan Barak, Under Cover of Darkness: The Israeli Supreme Court and the Use of Human Lives as “Bargaining Chips", 8 Plilim 77 (1999) (Hebrew) [published in English in 3(3) International Journal of Human Rights (1999)]). Still, and this for me is the crux of the matter, one cannot dispute that the rule laid down in the majority in the further hearing on the Bargaining Chips case also clearly supports the conclusion that actions of the kind in question—like those that the State wishes to carry out in the case before us via the Military Commander—must rest on authority based in explicit primary legislation intended to regulate the delicate, complex situation of holding live detainees, as well as terrorist bodies, for negotiation purposes.

26.       The position of Attorney General M. Mazuz in 2004 also supports the conclusion that it is hard to accommodate an interpretation whereby reg. 133(3) was intended to grant the Military Commander sweeping, practically unrestricted authority to order the temporary burial of terrorist bodies for negotiation purposes. We would recall that the State claimed that the Attorney General's position was that terrorist bodies could not be held based on a theoretical need to keep "bargaining chips" for future negotiations, but that the possibility should not be ruled out if there are special reasons to hold on to the bodies. An examination of the Attorney General's decision shows that  he never addressed the question of the Military Commander's authority under reg. 133(3) of the Defence Regulations, and stated no opinion in that regard. On the other hand, the Attorney General did point out that "it is impossible to defend a general policy" of not returning terrorist bodies to their families (para. 1 of the decision); that "preventing the return of bodies is a measure that cannot be justified by a theoretical need to keep bargaining chips for future negotiations on captives and missing persons" (para. 7); and that: "a policy allowing terrorist bodies to be held in certain cases and no few cases, is inconsistent with the duty to strike a balance between the dignity of the dead and their families and considerations of security and protecting public order and safety in the area" (para. 8). Indeed, the Attorney General's position did not categorically rule out the measure of holding bodies for negotiation purposes in special situations, such as a concrete deal for the exchange of bodies. As previously noted, however, this determination was rendered under the clear assumption that there is authority to hold bodies, and in any case this should be read in light of the other determinations in his decision—which would seem to be the main point—that seek to limit such authority and confine it to specific, concrete circumstances.

27.       Interim summary: The conclusion from the interpretative analysis thus far is that reg. 133(3) of the Defence Regulations does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. This conclusion arises, first and foremost, from the language of the regulation, which, as explained, is at best "general" and "broad" in a manner that fails to meet the requirement for explicit legislation. It also follows from the regulation's purpose, as suggested by its historical context, inner and external logic, and its juxtaposition with rulings made in similar contexts. As explained, the Mandatory legislator, followed by the Israeli one, never considered a situation concerning the temporary holding of terrorist bodies for negotiation purposes, and did not seek to create a unique legal arrangement that would grant authority to that effect. In the next part of the judgment, I will further explain that this interpretative conclusion is even reinforced, in my opinion, in light of the provisions of international law and comparative law treating of situations of handling bodies during armed conflict or confrontation.

International Law and Comparative Law

28.       In our case, the State's consistent line of argument was predicated on the assumption that the Military Commander had a source of authority in Israel's domestic law. The State made it clear that it was not predicating its position on international law, although emphasizing that, in its view, there is no prohibition upon holding dead bodies international law. In the previous part of the decision, I examined the provisions of domestic Israeli law and arrived at the conclusion that this examination itself shows that it comprises no source of authority for holding bodies for negotiation and bargaining. However, I think it justified to go further, and also address issues relating to international law, for three reasons: First, even though the State sought to base its actions solely on domestic Israeli Law, it is possible that international law may apply at least to some of the corpses. In this context, suffice it say that some of the terrorists whose bodies are held by the State of Israel are of inhabitants of the Territory[1] "affiliated" or "identified" with Hamas in a manner that may raise questions regarding the applicability of international law. Second, the discussion about international law may play a part in the interpretation of reg. 133(3) of the Defence Regulations, since the purposive interpretive presumption is that the legislature meant to grant the Military Commander powers conforming to the provisions of international law. Third, the discussion of international law is also required as it could contribute to establishing some legal order in similar body-holding situations in the future. We would emphasize that the goal of the discussion is not to make positive assertions concerning the applicability of international law in each of the possible body-holding situations, but only to present a general picture of the subject.

 

29.       The factual situation is that the State of Israel wishes to hold bodies of terrorists who have committed acts of terrorism against its civilians. The web of laws that might apply in this situation is complex. The normative framework might be based exclusively on domestic Israeli Law. Such is the case, for example, when the terrorist is a citizen and resident of Israel, and unaffiliated with any terrorist organization. In other situations, the normative framework might include the provisions of international humanitarian law on armed conflict, as well as complementary provisions from international human rights law. When it comes to armed conflict, the provisions of the law might relate to international armed conflict or non-international armed conflict. In certain circumstances, for example when the terrorist is a resident of the Judea and Samaria area, the laws of belligerent occupation might also apply in parallel. Alongside those, one has to keep in mind that the laws of armed conflict include fine distinctions that might also bear upon the legal situation. Particularly well-known is the distinction between combatants and non-combatants or civilians (for more on the systems of laws that might apply to a body-holding situation, see: Anna Petrig, The War Dead and their Gravesites, 91 Int'l. Rev. of the Red Cross 341-369, 343 (2006) (hereinafter: Petrig); Thomas L. Muinzer, The Law of the Dead: A Critical Review of Burial Law, with a View to its Development, 34 Oxford J. of Legal Stud. 791-818 (2014)).

 

30.       The international humanitarian law applicable to armed conflict comprises various norms on burials and the handling of corpses. The key provisions are anchored in the four Geneva Conventions of 1949, and the two Protocols Additional to the Conventions of 1977. The large majority of the provisions constitute customary international law, which forms part of the binding domestic law of the State of Israel. There is no disputing that the State of Israel is committed to the First, Second and Third Geneva Conventions. On the other hand, its traditional position is that the belligerent occupation laws found in the Fourth Geneva Convention do not apply to the area of Judea and Samaria, even though it respects the humanitarian provisions included therein. In addition, the State of Israel is not party to the Additional Protocols. It has reservations about some of their provisions, but sees itself subject to their customary provisions of law (see HCJ 769/02 Public Committee Against Torture v. Government, [49], paras. 16-23; HCJ 7957/04 Mara'abe v. Prime Minister of Israel [50], 492; HCJ 2056/04 Beit Sourik  v. Government [51],  827; HCJ 698/80 Qawasmeh v. Minister of Defence [52],  (hereinafter: the Qawashmeh case); Orna Ben Naftali & Yuval Shani, International Law Between War and Peace (2006) (Hebrew); Ruth Lapidot, Yuval Shani & Ido Rosenzweig, Israel and the Two Protocols Additional to the Geneva Conventions (Policy Paper 92, Israel Democracy Institute) (2011) (Hebrew); Yoram Dinstein, The Laws of War  (Hebrew)  (1983)).

 

(For the conventions, see: The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter: the First Geneva Convention); The Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (hereinafter: the Second Geneva Convention); The Third Geneva Convention relative to the Treatment of Prisoners of War (hereinafter: the Third Geneva Convention); The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereinafter: the Fourth Geneva Convention). For the Protocols, see: Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (Hereinafter: the First Protocol); Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977 (Hereinafter: the Second Protocol)).

 

31.       Most of the norms relating to the handling of dead bodies in international humanitarian law apply to situations of international armed conflict. The Geneva Conventions impose various obligations upon belligerent parties with respect to the evacuation, documentation, identification, registration and handling of—and the communication of information on—bodies during combat in the field. These obligations are meant to ensure proper, respectful handling of bodies during combat, which would also make it possible to know the fate of the fallen in the future. These obligations are anchored, inter alia, in arts. 16-17 of the First Geneva Convention, arts. 19-20 of the Second Geneva Convention, art. 120 of the Third Geneva Convention, and arts. 27 and 130 of the Fourth Geneva Convention (for more, see: HCJ 4764/04 Physicians for Human Rights v. IDF Commander [53], 401-404 ; the Barake case). The Geneva Conventions do not establish an obligation to return bodies within the framework of an international armed conflict. The reason for this is that the representatives of the delegations who took part in formulating them preferred leaving this option open, since some of the delegations preferred that the dead to be buried on the battlefield (see: J.S. Pictet, Commentary of Geneva Convention (1949) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 181 (1952)). However, even if the Conventions do not state an obligation to return bodies, the interpretation specified in the Red Cross's updated commentary on the First Geneva Convention (International Committee of the Red Cross Commentary of 2016 of I Geneva Convention (1949) For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1643-1647 (2016)) states unequivocally that the preferred option is to return the bodies to the family members of the fallen:

 

The obligation to ensure that the dead are buried or cremated can be satisfied in different ways.

…The preferred option is the return of the remains of the deceased to their families so that they may bury or cremate them in accordance with their religious beliefs and practices. Another reason why this option is preferable is that it enables the families to mourn their loved ones. Indeed, return of the dead to their families can be considered a basic humanitarian goal, recognized in both conventional and customary humanitarian law.

 

Furthermore, the First Protocol adds and anchors a specific requirement to return bodies in certain circumstances. The Protocol establishes that the remains of people who died as a result of occupation situations or acts of hostility should be buried respectfully, and that as soon as circumstances permit, the parties to a conflict are expected to reach an agreement on their return (art. 34 §2(c)). The Protocol further states that, if no such agreement is concluded, the party holding the bodies may offer to return them (art. 34 §3). While the articles of the Protocol state that the parties "shall conclude agreements" without imposing an obligation to return bodies, their tenor is clear. The commentary on the Protocol even clarifies that although this arrangement seemingly applies in certain circumstances only, it might serve as a good platform for returning bodies in other circumstances as well (Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, para. 1330 (1977)). Guidelines in a similar spirit also exist in the accepted interpretations of customary international law. Thus, the rules in the study by the International Committee of the Red Cross explain that a party to an international armed conflict must make every effort to facilitate the return of a dead person's remains to the other side upon its request (see: Jean-Marie Henckaerts and Louise Doswald Beck, Customary International Humanitarian Law, Vol. I: Rules, Rule 114 (2006)). As it transpires from this study, similar instructions appear in a number of military manuals, including in the United States, which announced its support of the rules of the First Protocol relative to the return of bodies in an international armed conflict.

 

32.       Beside these provisions, international humanitarian law includes norms pertaining to non-international armed conflicts. In this context, there is no denying that the law is more vague (see Petrig's criticism on this matter, 353). However, Common Article 3 of the Geneva Conventions, concerning the right to dignity, as well as certain provisions of the Second Protocol, might apply. While these provisions do not establish an explicit prohibition on holding bodies, they, too, can be used to derive obligations relating to handling deceased persons and bodies. We would further note that even in a non-international armed conflict, the provisions of customary international law may apply. In this context, the study conducted by the International Committee of the Red Cross (ibid.) specifies that even though the applicable rules on returning bodies in non-international armed conflicts are vague, the international legal and humanitarian organizations have a clear position on the subject. Thus, for example, the 22^nd Conference of the Red Cross established obligations aimed at ensuring that parties to a conflict would make every effort to facilitate the return of a dead person's remains to the other side of a conflict. Similar resolutions were rendered by the UN General Assembly in 1974, and by the 27^th Conference of the Red Cross in 1999, which stated that all parties to an armed conflict must ensure that "every effort is made... to identify dead persons, inform their families and return their bodies to them". The International Committee further added that this was required in view of the basic rights accorded to the families of the dead (ibid, p. 414).

 

33.       International human rights law—which complements the laws of armed conflict—also includes general provisions on the right to dignity and to family life that are relevant to our case. These provisions are anchored, inter alia, in the European Convention on Human Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter: the Convention against Torture); and the International Covenant on Civil and Political Rights. These provisions do not lay down an explicit ban on holding bodies, but the legal approach in this matter can be inferred from them. We would note that, in accordance with the provisions included in these conventions, the UN Commission on Human Rights issued a number of resolutions against Belarus, Tajikistan and Uzbekistan stating that their refusal to return bodies of deceased persons to their families was a violation of rights (see: Staselovich v. Belarus, Communication No. 887/1999 (2003); Bazarov v. Uzbekistan, Communication No. 959/2000 (2006); Sultanova v. Uzbekistan, Communication No. 915/2000 (2006); Khalilova v. Tajikistan, Communication No. 973/2001 (2005); Shukurova v. Tajikistan, Communication No. 1042/2002 (2006)). Another thing to note is that the UN committee in charge of verifying the implementation of the Convention against Torture looked into the Israeli government's policy on retaining terrorist bodies. In its conclusions of 2016, the Committee's recommendation to the State of Israel was to take all necessary steps to return the terrorists' bodies to their families as soon as possible (see: UN Committee Against Torture (CAT), Concluding Observations on the Fifth Periodic Report of Israel, 42-43 (2016)). Note that the Israeli government's position is that the Committee's recommendations have no binding legal force).

 

34.       The rulings of the European Court of Human Rights (ECHR) likewise attest that holding bodies is a legally problematic move from the perspective of human rights law. It was ruled, for example, that Russia's refusal to return terrorists' bodies to their families in Chechnya contravened a number of provisions in the European Convention on Human Rights (Sabanchiyeva v. Russia Judgment [90] (hereinafter: the Sabanchiyeva case); Maskhadova v Russia Judgment [91] (hereinafter: the Maskhadova case). The European Court emphasized that the decision by the Russian authorities violated protected fundamental rights, among them the right to respect for private and family life, protected by virtue of art. 8 of the European Convention on Human Rights. This conclusion was based on precedents that gave expansive interpretation to the right to family life and the possibility for relatives to unite with their kin (see, for example, Pretty v. The United Kingdom [92]; Pannulullo v. France  [93]; Girard v. France [94]; Dodsbo v. Sweden [95]; Hadri-Vionnet v. Switzerland [96]). The European Court did rule that in holding the terrorists' bodies, the Russian authorities acted "in accordance with a law" under domestic Russian Law, as required by art. 8 of the European Convention, and it even agreed to view the purpose for which the said law was enacted in domestic Russian Law as legitimate in itself. At the same time, it was ruled that the Russian arrangement did not meet the proportionality requirement, because of its sweeping nature and its failure to strike a proper balance between conflicting interests and rights.

 

35.       With regard to the ruling of the European Court on the Russian arrangement, we would note in passing that even if this arrangement had been found to be legal, it would not in any case have been possible to draw an analogy from it to the Israeli arrangement. Contrary to Israeli Law, the Russian arrangement included unique, concrete and explicit provisions of law that positively prohibited the return of terrorists' bodies. This arrangement was included in a law titled Federal Interment and Burial Act, Law no. 8-FZ, and a decree titled Decree no. 164 of the Government of the Russian Federation (20.3.2003). The Russian Law explicitly permitted action against bodies of persons defined as "terrorists" even in the absence of any objective reason preventing their return. It stated in no uncertain terms that their bodies would not be handed over for burial, and that their place of burial would not be divulged, as follows: "The interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed" (§4) (English translation taken from the ruling in the Sabanchiyeva case). Furthermore, the authorities' action in Russia was also anchored in an explicit decree that regulates, in precise and rigorous terms, the way that bodies should be kept and their burial arrangements. Moreover, in the petitions in the Sabanchiyeva case and the Mashkadova case, it was argued that Russia was in fact the only state beside Israel that had a clear policy, seemingly grounded in law, on holding terrorists' bodies. The Israeli government did not contest this claim in the judicial proceeding conducted before us, nor did it point to any other country in the world with a similar arrangement.

 

36.       Along with this, we would note that other than the laws of armed conflict and human rights law, history has seen peace treaties signed between countries that have referred to how dead bodies are to be handled and repatriated (e.g. the Treaty of Versailles, 1919, arts. 225-226).

 

37.       The picture that emerges from the review is that although neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict, this practice is met with reservations, and involves considerable legal difficulty. True, it is possible to imagine situations where security interest might justify a party to a conflict holding bodies for certain periods of time within the framework of an armed conflict, for example, when battle on the ground is protracted, or certain bodies are required for investigation purposes. This is particularly so when both parties to a conflict simultaneously keep bodies (although we should note that each party is severally held to comply with international law and act according thereto, and violation by one party cannot, in itself, justify violation by the opposing party). Indeed, in these exceptional cases, the temporary holding of bodies might reflect a proper balance between security interests and conflicting rights, while also being legal under international law. Still, notwithstanding the existence of possible exceptions, international law expressly instructs that the preferred option is to return the bodies. Clear, explicit rules instruct parties to armed conflicts to make every effort to return the deceased to one another. This conclusion is understood from the spirit of many legal provisions of the Geneva Conventions, the Protocols Additional to the Geneva Conventions, the various conventions on human rights, customary international law, the Red Cross commentary collections, judicial decisions by international tribunals, the professional literature on international humanitarian law and international human rights law, etc.

 

38.       As to the specific case of the State of Israel, its decision to hold terrorist bodies, as noted, is not based on international law but on domestic Israeli law. In any case, this decision also appears to raise weighty questions when examined in light of international law. The State wants to interpret reg. 133(3) of the Defence Regulations in a way that grants the Military Commander broad authority to order the burial of terrorists for negotiation purposes, whereas reg. 133(3) of the Defence Regulations does not refer at all  to relevant distinctions in international law and does not relate to it. The regulation makes no mention of the numerous obligations imposed on parties to conflicts by virtue of international law as regards the evacuation, documentation, identification, registration and handling of bodies, as well as the communication of information on bodies. In addition, the regulation does not factor in the full range of distinctions required by international law in a situation where terrorist bodies are held, including distinctions between different combat situations (routine, armed conflict, etc.); between different types of terrorists (combatants, "affiliated", civilians, etc.), and between different terrorists based on their territorial affiliation (residents of Judea and Samaria, residents of East Jerusalem, of Israel, etc.). Regulation 133(3) of the Defence Regulations does not "converse" with international law in these numerous contexts, in a manner that raises questions about the extent to which it conforms to international law. The Cabinet Decision is also silent on these numerous contexts. This fact naturally carries implications for the interpretation of reg. 133(3) of the Defence Regulations, and serves to reinforce the conclusion regarding its generality and its being a non-explicit provision of law.

 

The "Reciprocity" Claim and its Implications for the Decision

 

39.       An argument that floated in the background of the petitions—one that is detached from the interpretation, and that I believe warrants separate discussion—is the reciprocity claim. The claim is that the State of Israel is actually holding terrorist bodies because the Hamas organization is holding bodies of IDF soldiers, as well as Israeli civilians. Were it not for Hamas holding bodies of IDF soldiers, the State of Israel, too, would not have held bodies of Hamas-affiliated terrorists. There is no denying that this argument raises serious questions of principle, and certainly moral questions. One cannot ignore the strong gut feeling, also pointed out by Justice M. Cheshin in his minority opinion in the Bargaining Chips case, that a substantial, fundamental difference exists between a state of affairs where both sides to a conflict simultaneously hold bodies, and a second state of affairs where only one party to a conflict holds bodies and refuses to return them. Given the circumstances of the case, however, I do not consider it possible to lend much legal weight to the reciprocity claim, for a number of cumulative reasons.

 

40.       First and foremost, it is obvious that the reciprocity claim cannot replace the requirement for authority. The fact that Hamas holds Israeli captives and missing persons might constitute moral grounds for reciprocation, but does not replace the obligation to act on the authority of law. As pointed out, even justified administrative action can be found to be illegal in the absence of a source of authority. The authority requirement does not draw its vitality from the justification of the administrative action, but from the principle of the rule of law and from broad goals meant to limit the power of government and ensure individual liberties. The principle of the rule of law, and the authority requirement derived therefrom, are separate from the question of the morality of some concrete administrative action. These things must be distinguished. As Justice Zamir said, the principle requiring authorization in law "overrides other public interests, including interests of the first order"—and even an important security interest cannot legitimize administrative action not authorized by law—"This is the rule of law in government" (Zamir, Administrative Authority, 76). And note well that the obligation to act in compliance with a law that regulates the exercise of governmental power and its restrictions is particularly important in the fight against terrorism, where the wielding of governmental power often involves questions relating to human rights (see: Aharon Barak, The Supreme Court and the Problem of Terrorism, in Judgments of the Israel Supreme Court: Fighting Terrorism Within the Law 9 (2005); HCJ 168/91 Morcus v Minister of Defence [54], 470). As noted, the requirement of authorization in the law stands on its own. The reciprocity claim, justified and proper as it may be in moral terms, cannot legitimize the Military Commander's action in the absence of authorization in law for his action.

 

41.       Secondly, reg. 133(3) of the Defence Regulations does not stipulate any reciprocity condition. It does not establish that a necessary condition for holding bodies is for both parties to a conflict to hold bodies at the same time. The contrary is true: the authority in principle granted thereunder seems to be a broad authority that does not depend on the existence of any preconditions. The Cabinet Decision is also not explicit in this regard. While the Cabinet Decision was forward looking, at a time when Hamas held Israeli captives and missing persons, it did not clarify that it was only valid until their repatriation. Note that had there been a specific, explicit primary arrangement in Israeli Law that authorizes an administrative entity to hold terrorists' bodies for negotiation purposes, reciprocation ought to have been a primary and necessary condition. Indeed, if the purpose of the arrangement is to allow the State of Israel to negotiate with enemies for the return of its own sons, and if the State of Israel accepts (as it declared before us) that holding terrorists' bodies for negotiations should be reserved for situations involving concrete contacts for the exchange of prisoners and missing persons, it stands to reason that authority to hold bodies for negotiation purposes would be made conditional on both parties to the conflict simultaneously holding prisoners and missing persons. As noted, such a condition is absent from the Cabinet Decision and from reg. 133(3) of the Defence Regulations.

 

42.       Third, in the more general sense, one should bear in mind that the fact that the enemy acts in certain ways does not always justify similar action. As President Barak said: "This is the destiny of a democracy — it does not see all means as acceptable, and the ways of its enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. " (the Public Committee case [49], para. 64, 844-845). In this context, as noted, even if one can envisage situations where the State of Israel would be able to hold bodies, and even if we accept the reciprocity claim in certain senses, this does not mean that the State of Israel can take every action taken by its enemies. “Reciprocity” does not necessarily mean “full reciprocity”. Indeed, even if the State of Israel sought to hold terrorists' bodies only when its enemies simultaneously held Israeli captives and missing persons, it would still be subject to internal norms that are incumbent upon it, and that it had itself chosen to abide, among them that its actions are in accordance with the law, meet the rules of proportionality, are consistent with various obligations in both domestic and international law, comply and respect constitutional balances, etc. In this sense, the assumption that the enemy's actions follow "different norms", some of them contrary to basic legal and humane norms, cannot serve as legal justification for sanctioning every action—by way of mirroring—on Israel's part as well.

 

43.       Finally, the reciprocity claim in this case ignores that the connection between the specific terrorists whose bodies are held by the State of Israel and Hamas is unclear. In this respect, the State made it clear that it did not claim that the terrorists whose bodies it holds are Hamas fighters. On the other hand, it was claimed that they are at most "affiliated" or "identified" with Hamas ideologically. Assuming even that Hamas were interested in holding negotiations on those bodies in dispute, it is obviously possible to imagine similar situations where the equation between the State of Israel and the terrorist organization would not be simple and clear-cut, and this too should be considered when examining the reciprocity claim.

 

44.       As noted, the conclusion is that the reciprocity claim cannot be accorded much weight within the judicial debate upon the petitions, and that it makes no difference to the analysis of the authority in this case.

 

The Remedy

 

45.       As explained above, Israeli Law does not grant the Military Commander authority to hold terrorists' bodies for negotiation by way of temporary burial or in any other way. As a general, non-explicit provision of law, reg. 133(3) of the Defence Regulations does not constitute such source of authority. Prospectively, the conclusion is that the Military Commander may not use his authority under the regulation to hold terrorists' bodies for negotiation. Retrospectively, the conclusion is that the burial orders that are the subject of the petitions were issued by the Military Commander unlawfully. A possible remedy in these circumstances is to declare those burial orders void, which would mean the immediate return of the terrorists' bodies to their families. However, considering the entirety of rights and interests at play, it is my opinion that if the State so wishes, it should be afforded the opportunity to formulate a full, complete legislative arrangement, in explicit, specific primary legislation that meets the relevant legal standards, and which will be intended and dedicated to treat of the issue of holding bodies for the desired purposes, and which would accord weight to the observations made in this judgment. While an outcome where the State of Israel continues to hold bodies even after it has been judicially determined that this action is done without authority is no simple matter, I believe that it is a balanced and appropriate outcome considering the totality of circumstances (on granting a remedy of the suspended voidance, see: Daphne Barak-Erez, Procedural Administrative Law, 430 (2017) (Hebrew); Yigal Marzel, Suspending a Declaration of Voidance, 9 Mishpat U'Mimshal 39 (2005) (Hebrew)). In light of the above, if my opinion be heard, my recommendation to my colleagues would be to grant the petitions, make the orders nisi issued within their framework absolute, and order the granting of a suspended declaration of voidance that would allow the State time to formulate a full legal arrangement within six months from the time of the rendering of this judgment. Should the State fail to formulate an arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families. I would further recommend to my colleagues that we not issue an order for costs in this proceeding.

 

Comments on the Margins of the Decision

 

46.       Given my decision that reg. 133(3) of the Defence Regulations does not grant the Military Commander authority to hold terrorists' bodies for negotiation purposes, I need not address additional arguments raised by the Petitioners, including those made with respect to the Military Commander's exercise of his discretion and the purpose of his actions. I would note, in particular, that I have found no need to address the Petitioners' claim regarding the territorial application of the Defence Regulations. In this context, the Petitioners argued that even if reg. 133(3) of the Defence Regulations were determined to constitute a source of authority for the Military Commander's decision to hold bodies for negotiations, this authority would not have applied, in any case, to all the bodies in the petition. In their view, the authority under the Defence Regulations applies only to bodies of terrorists from Judea and Samaria, and not to bodies of terrorists from East Jerusalem. As I said, I am not required to rule on this claim, but I will note, beyond what is strictly necessary, that this claim is erroneous on its face. The Defence Regulations also apply within the State of Israel, as they constitute Mandatory legislation that predates the establishment of the State. Hence, the decision on the question of the Military Commander's authority by virtue thereof is also relevant to bodies of terrorists from East Jerusalem (see and compare: Michal Tzur (supervised by Prof. M. Kremnitzer), The Defence (Emergency) Regulations, 1945, The Israel Democracy Institute, Policy Paper No. 16, p. 11 (1999) (Hebrew); HCJ 5376/16 Abu Hdeir v. Minister of Defence [55], para. 32, per Justice E. Rubinstein); HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank [56], para. 1, per Justice U. Vogelman).

 

47.       In debating the question of the remedy, I decided upon the remedy of a suspended declaration of voidness, in order to allow the State sufficient time to formulate a full, complete primary legislative arrangement. I would like to emphasize that, notwithstanding my decision to order that final remedy, this should not be taken as an expression of any position in regard to a decision, if such is made, to launch a legislative procedure. The decision to initiate a legislative procedure, with its possible implications, is the legislature’s to make, and it is assumed that it will exercise discretion as well as wisdom. It goes without saying that I am also not expressing any opinion on the content of any legislation that may be enacted. My only operative determination in this ruling is that reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander to order terrorist bodies to be held for negotiation purposes. My judgment is based on this determination and it alone. As opposed to this, one should not read into it any other determination that might inhibit the Court from expressing positions on future legislation, including authority that may be granted by virtue of such legislation, its purposes, the discretion exercised within its framework, proportionality, etc. Of course, it can be assumed that these issues, too, might raise weighty legal questions in the future.

 

Summary

 

48.       This ruling addressed only a single question: whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the temporary burial of terrorists' bodies for the sake of holding them for negotiation purposes. As explained, reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander's action. This conclusion necessarily derives from the principle of the rule of law and the principle of administrative legality. It follows from interpretative analysis of the regulation's language, which indicates that this is a general, broad regulation that cannot be deemed explicit, specific legislation. It can also be understood from the purpose of the regulation, which comprises its historical context, its inner and external logic, and the application of the rules of interpretation applied in the Israeli legal system. As explained in the decision, the Mandatory legislator, followed by the Israeli one, never envisaged a situation related to the temporary holding of terrorists' bodies for negotiation purposes, and did not seek to put in place a unique arrangement to grant authority in that regard. Moreover, the conclusion in the matter of authority is reinforced when juxtaposed with this Court's rulings in other, similar contexts of terrorists' bodies and live detainees being held as “bargaining chips”, as well as when compared to international humanitarian law as it relates to the laws of armed conflict and to international human rights law.

 

49.       In effect, my judgment can be summarized as follows: The State of Israel—as a state under the rule of law—cannot hold terrorists' bodies for negotiation purposes in the absence of explicit enabling  legislation. If the State so wishes, it must formulate a full, complete legislative arrangement specifically tailored to this subject, in explicit primary legislation that meets the legal standards of Israeli law, and corresponds with those provisions of international law that are not disputed. Since Israeli law has no such legislative arrangement, I recommend to my colleagues that we grant the petitions, make the orders nisi issued within their framework absolute, and make a suspended declaration of voidness with respect to the burial orders, so that the State can formulate a full, complete, dedicated legal arrangement within six months of the rendering of this judgment. Should the State fail to formulate a legal arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families.

 

50.       Before concluding, and not unnecessarily, I would like to note that in writing my opinion, I constantly had in mind the family members of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and of Israeli civilians Avera Menigstu and Hisham al-Sayed, as well as the relatives of the victims of the hostile acts committed by the terrorists whose case was heard in the petitions. Truth be told, deciding these petitions has been extremely hard for me. The suffering of the Israeli prisoners and missing persons held in Hamas captivity and the pain of their family members are unbearably heavy. The human outcome is hard, especially when the State believes that holding the terrorists' bodies might help obtain a deal for their repatriation. At the same time, as judges, our job is to rule in accordance with the law and the binding legal rules. To quote President Barak in the Bargaining Chips case [48], "as important as the purpose is of the release of prisoners and missing persons, it is not sufficient – in the framework of the petition before us – to legitimize all means." (ibid, para. 24, at p. 744). As previously noted, the State of Israel cannot, as a state under the rule of law, hold bodies of terrorists for negotiation purposes without authority. It has the option to arrange the issue in law, and the hope is that—with or without regard for this—all the legal means will make it possible to bring home the Israeli captives and missing persons as soon as possible.

 

51.       All that remains for me to do is to end this judgment on the well-known words of Justice H. Cohn in the Qawasmeh case, which I also had the opportunity to quote in the past in CFH 5698/11 State of Israel v. Dirani [57]:

 

How is the fighting of the State different from the fighting of its enemies? The one fights while upholding the law, whereas the others fight while breaking the law. The moral strength and material justification of a government’s fight are entirely contingent upon upholding the laws of the State. By giving up this strength and this justification of its fight, the government serves the enemy’s objectives. The moral weapon is no less important than any other weapon ‒ and perhaps superior—and there is no moral weapon more effective than the rule of law.

 

 

 

 

Justice G. Karra:

 

I concur in the opinion of my colleague Justice Y. Danziger, and will add this: Regulation 133(3) authorizes the Military Commander to order the place of burial of any person's corpse, who will bury that corpse, and at what time it will be buried, but it cannot be understood as testifying to the existence of authority for the Military Commander to hold a corpse after its burial. Since "the limits of interpretation are the limits of language", the language of the regulation cannot be interpreted to include what is not there.

 

 

Justice N. Hendel:

 

The State of Israel has existed in a state of emergency—literally, as well from the legal standpoint—since the day of its inception. A state of emergency, as well as of war. The law of war, in all its elements and aspects, is no oxymoron, but rather a constant legal challenge imposed upon the State by circumstances. Reality, which forms the factual foundation, does not dictate an outcome one way or another. This area—the law of war—is perhaps the most difficult of  legal disciplines. It is not theory, but concrete questions that stand on the shoulders of other questions, some of which are virgin soil: life and death, defense and morality, and even defining the kind of society we are, and the kind of society we choose to be. Caution is required, as well as sensitivity and legal analysis in accordance with its rules. Deciding the issue of handling terrorists' bodies thus requires an in-depth, meticulous and rigorous legal journey through the fields of the relevant norms and considerations—upon which I shall elaborate in my opinion.

 

1.         On January 1, 2017, the Israeli government—through the Ministerial Committee on National Security Affairs—adopted a new policy on handling bodies of terrorists. According to this decision, such bodies would be returned, as a general rule, to relatives "under restricting conditions" set by the security establishment. However, two groups form an exception to this rule: Bodies of terrorists who had belonged to the Hamas terrorist organization (hereinafter: Hamas) or had committed a "particularly exceptional terrorist act", would be held by Israel by way of burial. The decision by the Ministerial Committee was based on security evaluations that suggested that holding bodies of terrorists belonging to the last two categories—and hence known to hold "value" for Hamas—"might aid" in repatriating the civilians and the bodies of fallen IDF soldiers held by the terrorist organization, and facilitate future negotiations on the matter. At the very least, holding terrorists' bodies might improve the nature and parameters of a future repatriation deal, together with the significant, related security implications. Thus, the policy adopted by the Ministerial Committee was meant to promote the safe return of Israeli civilians Avera Mengistu and Hisham a-Sayed, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory—while protecting the security and safety of the general public.

 

According to this policy, and by virtue of burial orders issued by the relevant Military Commanders, four bodies of terrorists were buried in the cemetery for fallen enemies in Amiad, and DNA samples were taken to allow for future identification. Two other bodies of terrorists are held by the Israel Police, with no burial orders having been issued for them as yet. On September 13, 2017, we acceded to the request of the Petitioners in HCJ 285/17 and HCJ 6524/17, and instructed the Respondents—pursuant to previous decisions—not to bury these bodies until a decision is made on the petitions.

 

2.         In their petitions, the Petitioners ask that we order the Respondents to return the bodies of their relatives, claiming that holding the bodies violates the constitutional right—of the terrorists and their family members— to dignity, constitutes collective punishment, and is contrary to international law. From the Petitioners' perspective, the Respondents' policy is unreasonable and disproportionate. Furthermore, in the absence of explicit grounding in primary legislation, it violates the principle of administrative legality and does not meet the conditions of the limitation clause. As opposed to this, the Respondents invoke reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations; the regulation, verbatim, will be presented below), which authorizes the Military Commander to order the place, time and manner of burying "any person"—and thus also applies in the case of terrorists. The Respondents believe that the limited violation of the rights of the dead terrorists and their families is reasonable and proportionate, and given the circumstances—i.e., the Israeli civilians and the bodies of fallen soldiers held in Hamas hands—even consistent with the binding provisions of international law.

 

3.         In his comprehensive opinion, my colleague Justice Y. Danziger determined that refraining from delivering the terrorists' bodies to their families violates their constitutional right to dignity—since even "the most abhorrent murderer" is entitled to a dignified, proper burial—and hence adopting this measure requires "clear, specific and explicit" authorization in primary legislation. The problem being that reg. 133(3) of the Defence Regulations, on which the Respondents relied, "does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes", while the residual powers of the government do not comprise steps that violate fundamental rights. My colleague therefore proposes to grant the petitions in the heading, and order a suspended declaration of voidness of the relevant burial orders—should the State fail to resolve the issue with suitable legislation by June 1, 2018.

 

            I accept my colleague's position that there is value to comprehensive legislative regulation of the authority to hold terrorists' bodies, while specifying the relevant considerations and criteria for exercising it, and laying down the manner and limitations for holding bodies. I am also willing to concede that the handling of terrorists' bodies might infringe the right to dignity. In this respect, even the existing international law and custom carry weight. In other words, not every instance whatsoever of handling bodies is immune to judicial review. As grave as the terrorists' activity may be, it is not their values or actions that will dictate to us the binding legal norms within our system. But even from this perspective, the conduct of Hamas and the terrorist organizations, and the prevailing security situation, are pertinent in examining the violation of the right to dignity and its magnitude. For this reason, but not only for this reason, bringing the terrorists' bodies to proper burial, even if in a different form than the one they had hoped for before setting out on their murderous rampages, considerably reduces the violation.

 

            When all is said and done, I cannot concur in the result reached by my colleague, and condition the validity of the burial orders on some future legislative arrangement. For the reasons that I shall clarify below, my position is that reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the time, place and mode of burying terrorists' bodies, and that considerations having to do with preserving public safety and security—including against a background of civilians or bodies of fallen soldiers being found in enemy hands—lie at the core of this authority. The aspiration to promote a lex ferenda, i.e., a complete, comprehensive legislative arrangement of the issue, cannot blur the nucleus of authority entrusted by the existing law to the Military Commander—reg. 133(3) of the Defence Regulations. In these circumstances, although holding the terrorists' bodies oversteps the residual authority of the Israeli government (see HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [58], para. 20, per Deputy President M. Cheshin), I have found no real substance in the Petitioners' claims as concerns the authority.

 

4.         Before I delve into the interpretation of reg. 133(3) of the Defence Regulations, we should recall that its current version was shaped in early 1948, when its scope was extended and the authority was vested in the Military Commander (sec. 2 of the Palestine (Defence) Order In Council, 1937, Official Gazette, Supplement 2, 66)). As such, the regulation and its provisions come under the aegis of the preservation of laws provision in para. 10 of Basic Law: Human Dignity and Liberty, and are not subject to the conditions of the limitation clause in sec. 8 of the Basic Law, including the requirement that the violation of rights be done "by law… or by virtue of express authorization therein".

 

            It has indeed been ruled that even in the absence of direct applicability of the limitation clause—whether because the violated rights lack constitutional status, or because their violation is not anchored in secondary legislation—"a piece  of legislation is not to be interpreted as authorizing a violation of fundamental rights unless the authorization to do so is clear, unequivocal and explicit" (HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 52, per justice U. Vogelman (hereinafter: the Abu Arfa case); LCrimA 10141/09 Ben Haim v. State of Israel [59], para. 22, per President D. Beinisch; HCJ 6824/07 Manaa v. Tax Authority [14], para. 14, per Justice U. Vogelman (hereinafter: the Manaa case). Considering the importance of the fundamental rights, surely the legislature did not intend to authorize the executive branch to violate them, unless this is explicitly stated in law. This interpretative presumption also rests on the difficulties raised by a general authorization, be it implied or vague, which hinders the identification of the nature and boundaries of the authority, and allows for its arbitrary use (ibid.; HCJ 337/81 Mitrani v. Minister of Transport [60],  355-358).

 

            That being said, the case-law requirement for explicit authority should not be given strict, rigid, literal interpretation. On the contrary, it is a flexible requirement whose real content varies depending on "the nature of the right being violated and its underlying reasons, the relative social importance of the right, its social repercussions, the identity of the violating authority and how severely the protected right is violated in the situational context". Even when the language of the law does not clearly delineate the scope and boundaries of the authority, "It suffices that its particular purpose… makes the existence of authorization to violate the fundamental right a necessary conclusion" in order to fulfil, in the appropriate cases, the explicit-authorization requirement (HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [61], para. 11, per President D. Beinisch).

 

            These following was stated in relation to the explicit-authorization requirement in the limitation clause, but it equally holds true for its case-law counterpart, inasmuch as:

 

Interpreting the case-law rule on clear, and explicit authorization “flexibly” rather than “literally", and adopting a “contextual” approach by which the degree of strictness in applying the explicit-authorization requirement is followed in accordance with the relative importance of the violated right, the degree of its violation, the purpose of the law and the entirety of circumstances, promotes interpretative harmony, and is also justified for substantive reasons, in that it is characterized by flexibility and lack of dogmatism, as is required in a discourse on rights, and strikes a balance between the reasons justifying the limitation of human rights only in primary legislation and contrary values of administrative effectiveness and effective maneuvering room" (the Manaa case, para. 15; the Abu Arfa case, ibid; see and compare CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality [62], paras. 7-8, and 12).

 

The question whether or not a given piece of legislation comprises clear, explicit authorization cannot, therefore, be resolved through exclusively literal interpretation. The interpreter must delve into the purposes of the relevant norm, and examine whether, given the overall circumstances of the matter, they attest to a legislative intent to grant the executive branch permission to infringe the fundamental rights in question.

 

5.         Against this background, I will now address the interpretation of reg. 133(3) of the Defence Regulations, which instructs as follows:

 

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

As we know, "the limits of interpretation are the limits of language ", and so the first order of business is to examine the language of the relevant norm, in context, and weed out interpretations that find no support therein (the Manaa case, para. 19; Aharon Barak, Interpretation in Law, vol. 2 – Statutory Interpretation, 104 (1993) (hereinafter: Interpretation in Law) (Hebrew)). A text does not deviate from its plain meaning, and read literally, reg. 133(3) of the Defence Regulations tips toward the Respondents' position. The Regulation grants the Military Commander broad discretion, allowing him to order where and when the body of "any person" is to be "buried"—and by whom. There is nothing in the text to point to a distinction between permanent and temporary burial—since the term "burial" is used in both contexts (see, for example, secs. 3A and 4B of the Military Cemeteries Law, 5710-1950; Dorit Gad, Second Jewish Burial–“Gathering Bones”, 26-27 Yahadut Hofshit (2003) (Hebrew))—and surely the phrase "any person" does not rule out terrorists' bodies. Furthermore, as the words "by whom… the said body shall be buried" suggest, the Military Commander's authority does not come down to limiting the identity or number of those attending the funeral (a limitation discussed in HCJ 3933/92 Barakat v. GOC Central Command [26], 5-6; (hereinafter: the Barakat case), but also pertains to the identity of the burying entity—in a way that allows a departure from the norm relating to the delivery of the body to the family. The regulation thus grants the Military Commander a broad array of powers, from specifically ordering the time of burial to a more significant decision on the identity of the burier. At any rate, as my colleague also suggests, the regulation makes no direct or detailed reference to the possibility of temporary burial with negotiations taking place in the background.  For this reason, I am willing to assume, within the framework of this decision, that its language does not tip the scales in favor of the Respondents, and that the Regulation also "tolerates" a more restrictive interpretation.

 

6.         Having said that, we must move on to the second stage of the interpretative process and examine which of the proposed alternatives optimally fulfils the purpose of the legislation in both its layers (HCJ 693/91 Efrat v. Director of Population Registry [63], para. 11, per President A. Barak; (hereinafter: the Efrat case). First, we need to trace the subjective purpose that the legislature sought to advance—and which can be established, inter alia, by analyzing the social and legal background of the legislation, the explanations given for it, as well as the language and structure of the law and the interrelation among its various provisions (ibid, 13-15; Interpretation in Law, pp. 201-202).

 

            The first pertinent reference in Mandatory legislation to the issue at hand appeared in reg. 302 of the Prison Regulations, 3 Laws of Palestine  2091 (1925), which provided that after hanging prisoners sentenced to death, "the body shall hang for one hour, after which it will be taken down and handed over to the relatives for burial. Should the relatives  not desire to take charge of the body, it will be buried at  Government expense". Incidentally, it is interesting to note that this provision deviates from the law practiced in Britain at the time, under which prisoners who were executed were buried in the prisons, and not handed over to their families (see, for example, Caroline Sharples, Burying the Past? The Post-Execution History of Nazi War Criminals, in A Global History of Execution and the Criminal Corpse 249, 250-251 (Richard Ward, ed., 2015)). In any event, reg. 19C of the Emergency Regulations 1936—as amended in October 1938, under the Palestine (Defence) Order in Council, 1937, Official Gazette, Supplement 2, 825, 1095—authorized the District Commissioner to deviate from the provisions of reg. 302 on handing over the body to relatives, and to order, "Notwithstanding anything contained in any Ordinance or law… that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such prisoner belongs".

 

            This amendment of reg. 19C was preceded by another, in early 1938, wherein the coroner was authorized "not to perform an autopsy on the corpse of a person" who was "killed as a result of actions by His Royal Majesty's navy, army or air forces… for the purpose of suppressing riots" (Palestine (Defence) Order in Council, 1937, Official Gazette Supplement 2, 753, 77). The consolidation of these two provisions into one regulation, under the umbrella of emergency regulations, creates the impression that what we have here is a general arrangement on processing the bodies of persons killed or executed, against the background of hostilities with the security forces. This impression grows stronger in view of the social reality that led to the enactment of the emergency regulations—that is, the Arab revolt that took place in Palestine between 1936 and 1939, which met with a strong response from the Mandatory authorities. Scholars note that the increasing magnitude of the hostilities shifted the balance between the civil and military authorities in the country, and that by the end of 1938, the pendulum had already swung in favor of the latter, "leading to the implementation of complete military control in Palestine by October 1938" (Jacob Norris, Repression and Rebellion: Britain’s Response to the Arab Revolt in Palestine of 1936-9, 36 The Journal of Imperial and Commonwealth History 25, 29 (2008)). The arrangements relating to the handling of corpses of the fallen and of terrorists should thus be seen as an integral part of the continuous struggle of the colonial authorities against terror, in which extensive use was made of legal tools meant to broaden their powers, "as a means of specifically combating the revolt" (ibid, pp. 29-30; for a general description of the colonial fight against the locals' uprising, see also Yehoshua Porat, From Riots to Rebellion: The Palestinian Arab National Movement, 1929-1939 (1979) (Hebrew); Yigal Eyal, The First Intifada: The Suppression of the Arab Revolt by the British Army in Palestine, 1936-1939 (Hagai Porshner, ed., 1998) (Hebrew)).

 

            Let us continue to present the socio-legal historical background. A few years later—this time in the face of the intensifying Jewish struggle for independence (CrimA 6434/15 State of Israel v. Shavir [64], para. 4, per Deputy President E. Rubinstein)—the Defence (Emergency) Regulations, 1945 replaced the 1936 Regulations, and reg. 19C was reincarnated—lock, stock and barrel—in reg. 133 of the new regulations. Historians note and that the Mandatory authorities exercised this authority, and sometimes dictated the place of burial of those executed, in disregard of the family's requests and those of the deceased themselves (thus, for example, the Mandatory authorities decided to bury the three Olei Hagardom [“Those who went to the Gallows”] Eliezer Kashani, Mordechai Alkahi and Yehiel Dresner of blessed memory in Safed, even though all three expressed their wish to be buried in Rosh Pina, and despite the request of the Alkahi and Kashani families to bury their sons in their place of residence in Petah Tikva (Bruce Hoffman, Anonymous Soldiers: The Struggle for Israel 1917-1947 530 (2015); 4 Hanged in secret at Acre: Funeral at Safad, Palestine Post, April 17, 1947; Families were not told before, Palestine Post, April 17, 1947).

 

            In any case, in January 1948, after the UN partition resolution was adopted and the first shots of the War of Independence were fired, substantial changes were made to sub-sec. (3) of the new regulation, the sub-section that is our main focus: The narrow scope, limited to the burial of prisoners who had been executed, was replaced by a broad reference to "the body of any person", and the provision requiring burial of deceased persons in the cemetery of the community they belong to was dropped. What this means is that the original authority to prevent the return of the body to relatives was significantly broadened, and transferred from the District Commissioners to the Military Commander. Here too, the broader authorities granted to the Military Commander were not detached from the security context, i.e. Britain's joining the fighting that broke out between the Jews and the Arabs in November 1947 (see: Benny Morris, 1948: A History of the First Arab-Israeli War 97 (2010). Benny Morris is a history professor at Ben-Gurion University).

 

7.         Hence, the Mandatory legislator considered the Defence Regulations—including reg. 133(3)—a legislative platform intended to give the (mainly military) authorities effective powers with which to fight the terror directed at them from both sides of the Palestine divide (Tom Segev, Days of the Anemones: Palestine during the British Mandate 387 (1999) (Hebrew) [English: One Palestine Complete: Jews and Arabs Under the British Mandate (trans. Haim Watzman) (2000)). Initially, the regulation was satisfied with laying down a narrow exception to the norm relating to the return of prisoners' bodies to their families, but the authority was later expanded to apply to other bodies as well—belonging, as evidenced by the other components of reg. 133(3) of the Defence Regulations, to terrorists killed by the "forces of His Majesty", or to the fallen of these "forces". Thus, even if the historical and legal background for reg. 133(3) of the Defence Regulations does not provide a direct answer to the question before us, it suggests that the Mandatory legislator sought to authorize the Military Commander to refrain from handing over bodies to the relatives given considerations of protecting public safety and security, and be satisfied with burying them at the time and place, and in the manner he saw fit. From here, it is but a short distance to determining that considerations having to do with releasing the bodies of fallen soldiers, or live civilians, held captive by terrorist organizations lie at the heart of this purpose.

 

8.         Indeed, identifying the subjective intent of the legislator is not enough—since the objective purpose of the law is much broader, and it has been held that "a piece of legislation often has an objective purpose that the members of the legislating body never contemplated" (the Efrat case, para. 12). This purpose is of secondary importance in our case, since, as this Court noted in regard to another provision of the Defence Regulations:

 

The interpretation of the Defence Regulations in the Mandatory period, where colonial values held sway, is not the same as their interpretation in the State of Israel, where Jewish and democratic values hold sway. The Defence Regulations will therefore be interpreted based on the fundamental principles of the Israeli legal system as they evolved over the years (HCJ 6893/05 Levy v. Government of Israel [65], para. 9, per President A. Barak (hereinafter: the Levy case).

 

It is therefore necessary to examine the objective purpose of reg. 133(3) of the Defence Regulations, which consists of the concrete purpose—stemming "from the type of legislation and the nature of its arrangements"—and of the general purpose, which derives from the fundamental values of the system and from legislative arrangements "that are topically close" (Interpretation in Law, pp. 202-203; CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., [66], para. 98).

 

9.         Analysis of the Defence Regulations shows that their main and undeniable purpose is to maintain state security, and public safety and order, while focusing on the fight against terror:

 

First and foremost are considerations of state security and public order. These are the specific purposes underlying the exercise of the authority under the Defence Regulations. These purposes are inferred from the provision of the Palestine (Defence) Order in Council, by virtue of which the Defence Regulations were enacted. The Order in Council established that the regulations were meant "… to ensure the public's safety, the protection of Palestine, the imposition of public order and the suppression of uprisings, rebellions and riots, and to maintain the supply and services necessary for the public” (sec. 6). These objectives can also  be seen on close examination of the Defence Regulations themselves (the Levy case, p. 886; see also HCJ 680/88 Schnitzer v. Chief Military Censor [67],  628).

 

In the same spirit, the Defence Regulations were described, in the Abu Safa case, as "security-military emergency legislation, which contains broad enforcement powers and diverse tools, administrative and punitive, for fighting all types of terror, including from the economic aspect" (HCJ 3037/14 Abu Safa v. Ministry of Interior [68], para. 10, (emphasis added)).

 

The Defence Regulations give broad interpretation to the purpose of maintaining state security and public safety. They do not stop at granting powers pertaining to the "narrow", direct military struggle against armed terrorist operatives, but equip the authorities with a much larger toolbox. As stated:

 

It has long been understood that the war on terrorism is not simply a matter of thwarting a terrorist just moments before he carries out his plan. It is an extensive struggle aimed at undermining the infrastructure of terrorist organizations, the resources available to them and their ongoing operations. This fight involves diverse means, among them legal ones… The offence of performing a service for a terrorist organization, like other provisions in the Defence Regulations and the Counter Terrorism Law, expresses the recognition that the fight against terrorism also involves undermining the supporting structure of terrorist organizations. The law recognizes the importance of neutralizing terrorist activity while still in the bud, as well as the need to target infrastructures and mechanisms that allow it to grow (CrimA 6434/15 State of Israel v. Shavir [64], paras. 59-60, per Justice D. Barak-Erez).   

 

In this spirit, regs. 84 and 120 of the Defence Regulations allow the Military Commander to act against the economic infrastructure driving the terror machine and confiscate property linked—itself or through its owners—to these activities (on these regulations, which are no longer in effect within the territory of the State of Israel, see HCJ 2959/17 Alshuamra v. State of Israel [69], paras. 12-23 (hereinafter: Alshuamra case). Similarly, it was determined that reg.125 of the Defence Regulations authorizes the Military Commander to declare an area closed by order for the purpose of "delimiting training grounds, setting up military installations, etc." (CA 2281/06 Even Zohar v. State of Israel [70], para. 5, per Justice A. Procaccia, and compare para. 9 per Deputy President S. Joubran in the same matter; (hereinafter: the Even Zohar case))—and not necessarily for the purpose of preventing immediate confrontation (see the Levy case, pp. 892-893).

 

Regulation 133(3), which forms an integral part of the Defence Regulations, should also be interpreted in light of this broad purpose, i.e., promoting a systematic fight against terror and its various circles of support and activity. It goes without saying that curtailing the ability of terrorist organizations to use bargaining chips in order to gain achievements constitutes an integral part of this struggle.  The ongoing war on terror takes on various forms, and must adapt itself to the enemy's innovations. Actions result in reactions, and so the chain changes. New and ugly facets of terrorist organizations are nothing new. The tactics frequently change, and cannot be ignored. One might say that there is a direct relationship between the breadth of the fight against terror and the breadth of interpretation: when the former broadens, the interpreter must draw the necessary conclusions, and give the relevant norm a contemporary interpretation that expresses its spirit and purpose. The purpose of the Defence Regulations is broad, and its practical "translation" must be adapted to the changing reality—within the bounds of authority delineated by the legislature. The purpose is thus adapted to reality and is integrated with the powers granted to the Military Commander. Ignoring the frequently changing needs misses the clear purpose of the Defence Regulations, including reg. 133(3) that is the focus of this case.

 

10.       An "offshoot" that branches out from the purpose of maintaining state security and public order is the creation of individual and environmental deterrence. This purpose is expressed in a series of authorities that the Mandatory legislator granted to the Military Commander, believing that exercising them could "deter potential terrorists from carrying out a terrorist act and take human lives"—even if they are clearly devoid of direct, tangible military value (HCJ 5290/14 Qawashmeh v. Military Commander [71], para. 21).

 

Regulation 119 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture and destruction of terrorists' houses, stands out prominently in this case, since its purpose—as determined by this Court repeatedly—"is not to punish but deter" (see, for example, HCJ 4597/14 Awawdeh v. Military Commander [72], para. 19). In other words, the justification for exercising the authority to order forfeiture and destruction "lies entirely in its hoped-for impact on the environment, and more particularly the terrorist's surroundings" (HCJ 5376/16 Abu Hdeir v. Minister of Defence [73], para. 3 of my opinion), even though destruction carries no "pure" military value. A similar purpose is reflected in reg. 120 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture of all the property of a person who committed  an offence against any of the regulations—even when the offences are unrelated to the property, such that the forfeiture has no "deterrent justification" (the Alshuamra case, paras. 13-15). Without making a definitive statement, it seems possible that reg. 133(3) of the Defence Regulations—which primarily affects the non-implicated surroundings of the dead terrorist—also carries a similar deterrent purpose.

 

11.       Another concrete purpose of reg. 133(3) of the Defence Regulations is to regulate the handling of enemy corpses while protecting the dignity of the dead. The regulation, which was, as noted, adopted against the background of the intensifying fighting against terrorist organizations and local militias, reflects the spirit of art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949,  which imposes a duty upon parties to a conflict to ensure honorable interment for the enemy's fallen. In other words, the legislator authorized the Military Commander to undertake the burial of these bodies, bearing in mind the possibility that at some point in time—or, as stated in art. 17: "as soon as circumstances permit, and at latest at the end of hostilities"—the bodies would be exhumed and handed over to the family members. Naturally, such burial is of a temporary character; it is meant to ensure that the deceased rests in peace until the time comes—when fighting ends, or when an exchange arrangements are concluded (as part of which, as the State has declared, hundreds of terrorists' bodies have been returned in the past decades).

 

            This purpose of the regulation is not only reflected in the longstanding practice of holding the bodies of enemy fallen and terrorists— although this type of custom carries significant interpretative weight in itself (see and compare: HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 2 of my opinion ). An examination of sec. 76 of the Counter Terrorism Law, 5776-2016, which revoked many of the provisions of the Defence Regulations, suggests that the legislature chose to leave reg. 133(3) of the Regulations unchanged. This stems, as evidenced by the explanatory notes to the amending bill Defence (Emergency) Regulations (Revocation of Regulations), 5773-2013,  from perceiving reg. 133(3) as a vital, irreplaceable source of authority "for the burial of enemy dead" (the details of the authority are regulated in various secondary sources, such as General Staff Order 38.0109 "Enemy Army's Dead – Procedure on Identification, Disposal of Effects, Reporting and Burial in Times of Emergency"). Beyond the security considerations in their "narrow sense", the regulation therefore seeks to ensure proper temporary burial of enemy dead, until their possible return to their countries and families. Note parenthetically that the legislature's choice to refrain from revoking the regulation is particularly significant in view of the customary practice of burying enemy dead in dedicated cemeteries, and in light of the ruling that sanctioned the holding of terrorists' bodies for considerations relating to negotiation with terrorist organizations (HCJ 6807/94 Abbas v. State of Israel [37]).

 

12.       This last purpose "bridges" the security purposes of reg. 133(3) of the Defence Regulations and the general purpose attributed to each piece of legislation, namely the protection of fundamental rights. It is true that the preservation-of-laws provision maintains the validity of the Defence Regulations, including reg. 133(3), but:

 

[that] their interpretation, especially when it comes to the objective sense, must be done in the spirit of the value-based normative declaration made in the Basic Law, while sometimes re-balancing the values underlying the piece of legislation, in the spirit of the renewed constitutional balance (the Even Zohar case, para. 5, per Deputy President S. Joubran).

 

In this sense—interpretation versus direct attack—the fundamental rights are back up for debate. Burying the dead as per their wishes and those of their family forms an integral part of the fundamental right to dignity—which in this context comprises two heads: the dignity of the dead and that of their family. As President A. Barak stated at the time, "human dignity is not only a person's dignity in life. It is also a person's dignity after death, and also the dignity of that person's beloved, who cherish their memory in their hearts. This dignity is reflected, inter alia, in the very erection of a gravestone, in visits to the cemetery on memorial days and public ceremonies, and in tending the grave" (CA 294/91 Jerusalem Burial Society v. Kestenbaum [75], 523).

 

The introduction of Basic Law: Human Dignity and Freedom gave the principle of "the dignity of the dead" constitutional status, since "'the dignity of dead people derives from that of living people'… The dignity of the living person is violated when he is no longer guaranteed in life proper protection of his dignity when he is no longer alive" (HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd. [76] para. 135, per Justice Procaccia (hereinafter: the Al Aqsa case). Beside this aspect, albeit lower on the normative scale (CA 7918/15 Doe v. Friedman [77], para. 4 (hereinafter: the Friedman case)—stands, as noted, the right of the family members to determine how the dead and his memory are to be treated. The assumption is that "a violation of his memory and dignity is bound and intertwined with a violation of their dignity" (the Al Aqsa case, para. 139). Public policy, and the value attached by society to the care of its dead, reveal other facets in the principle of the "dignity of the dead" (ibid, para. 151)—and in some cases might even override the "private" rights of the dead and their families, dictating that their choices about the way to handle the corpse should be ignored (HCJ 6167/09 Avni v. State of Israel [78]; but see CA 1835/11 Avni v. State of Israel [79],  and the Friedman case).

 

13.       In my view, the "dignity of the dead", as such, stands on its own legs, and is higher up in normative status than "the dignity of the dead person's family". The more challenging question what is the basis for the principle of the "dignity of the dead": is it a derivative of human dignity—i.e., whether, just as human dignity is an individual "asset", so is the dignity of the dead, regardless of the surroundings and those surviving the deceased; or is protecting the dignity of the dead meant to send a clear message to the living, as a promise that their dignity will be preserved after their death. As noted above, the answer seems to comprise both possibilities.

 

            In this regard, it is interesting to turn to Jewish law, which also comprises several levels of the right of the dead to dignity. One aspect is inherent in the halakhic injunction that it is "a religious duty to carry out the wishes of the deceased" (TB Gittin 14b). Commentators see the duty to honor the last wishes of the deceased and execute their will—including in matters unrelated to the distribution of the estate—as an expression of human dignity (Rabbi Osher Weiss, Minchas Osher - Bereshit, Parashat Vayekhi, Siman 66, 435-439 (2002) (Hebrew) in regard to Jacob's final charge in his blessings to his sons, and on his place of burial ["Bury me not, I pray thee, in Egypt"]). Another aspect is reflected in the biblical instruction not to leave an executed person’s body overnight, "for an impaled body is an affront to God" (Deut. 21:23). Rashi (Rabbi Shlomo Yitzchaki, one of the most illustrious Bible and Talmud commentators, who lived in France in the early part of the second millennium CE) interpreted this verse in a way that connects human dignity to God's dignity: "It is an affront to the King in Whose image Man is created", hence the dignity of God requires the dignified burial of man, even if one who had sinned and was executed. Accordingly, it was determined that "whosoever lets his dead lie overnight transgresses a negative commandment", unless he is "kept overnight for the sake of his honor, to fetch him a coffin or a shroud" (mSanhedrin 6, 7). And note that the Talmud (TB Gittin 61a) says that the "dead of the heathen are buried along with the dead of Israel", which means that the commandment of burial applies to Jews and non-Jews alike. (See the ruling by the late Rabbi Shlomo Goren, who served for many years as the IDF's Chief Rabbi, and as the Chief Rabbi for Israel, with regard to the burial of non-Jewish soldiers in military cemeteries (Trumat Hagoren, vol. II,  Siman 79 (2012) (Hebrew); Beoz Uvetaatzumot: An Autobiography, 152-153 (2013) (Hebrew)).

 

14.       Returning to Israeli Law, the right of the deceased and the deceased's family to dignity is broad in scope. It spans issues such as "tending the grave" or choosing the form and content of the inscription on the garvestone (see also HCJFH 3299/93 Wechselbaum v. Minister of Defence [80]). The duty to hand over the dead person's body to the relatives for burial derives therefrom.

 

            Indeed, in analyzing reg. 133(3), one cannot ignore that the dignity of the dead also applies to the burial of terrorists who had committed serious killing rampages. However, from a human-dignity perspective, and in the spirit of the Jewish law position—as shall be presented below—bringing the dead to proper burial expresses the values of the State of Israel as a Jewish and democratic state. These values are not diminished by the deceased's abject acts, nor do they distinguish between friend and foe, Jew and gentile. It is worth noting that international law, too—e.g., art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, mentioned above (para. 10)—attaches great importance to burying the  dead, even though they had fought in the enemy's ranks prior to their death. According to the ruling of the late Rabbi Shaul Yisraeli (the Israel Prize laureate for Judaic Studies, head of the Merkaz HaRav Yeshiva and member of the Chief Rabbinate Council, who died in 1995), Jewish Law attributes great weight to the provisions of international law as regards the law of war:

 

And therefore, one has to see the agreement of the nations that war is one of the legal means, as long as the warring nations observe the accepted custom among nations with regard to war… and from now we will say that the prevailing law between countries also stems from agreement between the people of those countries, and although it concerns matters of life and death, their agreement is valid. And therein lies the foundation of the legality of war (Amud Hayemini, Part 16, Chapter 5 (1992)).

 

The Halachic term Dina d'malkhuta dina [the law of the land is law] thus also applies in the realm of relations between the state and the international community, and imposes upon the State of Israel a duty to act in compliance with the norms anchored in the law of war, including paying last respects to enemy dead.

 

            Beyond the weight that Jewish law accords to the provisions of international law in this context, Jewish law has its own deep, independent, ancient roots in regard to the duty to bury enemy dead. Thus, for example, we are told that after the Israelites returning to their land defeated the Canaanite kings who fought them, Joshua ordered the burial of the enemy's dead that very day (Joshua 8:29; Joshua 10:27). The book of Ezekiel, too, says (39:11) with respect to the Gog and Magog war to be waged at the end of the days, "And it shall come to pass in that day, that I will give unto Gog a place there of graves… and there shall they bury Gog and all his multitude: and they shall call it The valley of Hamongog". Based on the precedent set by Joshua, Nachmanides ruled that the general duty to bury the dead also extends to fallen enemies. Rabbi Shlomo Goren, who, as we said, served as the first IDF Chief Rabbi, wrote this on the subject:

 

During my service in the IDF, we set up special burial units whose role was to see to the identification and burial of fallen enemies in wartime. This is consistent with what we said at the outset, that the words of  Scripture, "for in the image of God made he man" (Genesis 9:6), hold true for any human, with no distinction between nations and races (Meshiv Milchama, vol. I, 40 (2^nd ed., 1994) (Hebrew)).

 

We shall end with the responsum of Rabbi Nathan Ortner, who served as the Rabbi of Lod at the time, to a question put to him by an IDF soldier during the 1982 Lebanon War. That soldier said that his company had hit a Syrian tank and killed the soldiers in it, and wanted to know whether he was under religious obligation to bury the Syrians who had fought the IDF soldiers "and wanted to destroy us". After an extensive discussion, the Rabbi determined, with reference to Nachmanides's position presented above, that various nuances differentiated between the existing halakhic approaches—but that all of them recognized the duty to bury fallen enemies. Whether the duty originated in the Bible or with the rabbis, the rule is that the enemy's fallen must be buried, certainly when their bodies lie within the Land of Israel. (Nathan Ortner, Burying Enemy Dead, 4 Techumin 97 (1983) (Hebrew); see also Shlomo Brody's article on burying the body of the terrorist who staged the 2013 attack at the Boston marathon, Shlomo Brody, Even Criminals Rest in Peace, Tablet (May 9, 2013)). 

 

            Thus, Israeli Law, international law and Jewish Law have stated their cases. What emerges is that the general purpose of reg. 133(3) of the Defence Regulations strives to minimize the violation of the dignity of the terrorist and his relatives, thus seeking to restrict the authority of the Military Commander to order the burial of the body as he sees fit in terms of the place and conditions of burial.

 

15.       Another general purpose derived from the State's fundamental values is the value of "redemption of captives". Whether this is an integral component of "state security" or not, it is hard to question the significance accorded to this value within Jewish tradition and within the Israeli ethos. As aptly described by Deputy President M. Cheshin (even if his interpretative position remained the minority opinion in the Does case [48]):

 

The commandment of redemption of captives—a commandment of the utmost order—was instituted for good reason, since all of Israel (and for our purposes not only Israel) are responsible for one another. An army's strength lies in the brotherhood of its combatants, and this brotherhood is monolithic when battle comes and a combatant falls captive in enemy hands. As in the oath of the Three Musketeers, the one that Alexandre Dumas put in their mouth, "Tous pour un, un pour tous", a combatant will fight knowing that he is not alone, and that his friends will come to his rescue when trouble arrives. We are ordered and we are adamant not to abandon an injured person in the field and, as with an injured person, we will not rest until the release of our captives from their captivity. Combatants are akin to mountain climbers tied to each other by rope and fate, and a climber whose grip has failed and whose body is hurled into the abyss will be saved by his comrades (p. 747).

 

Indeed, as Justice I. Englard noted at the time (HCJ 794/98 Obeid v. Minister of Defence [81], 776-777):

 

It has been held as a matter of halakha in Shulchan Aruch, Yoreh De'ah, 252:1 that “There is no greater commandment than the redemption of captives,” and that:

”Whosoever ignores the redemption of captives transgresses against thou shalt not harden thine heart (Deut. 15:7), and nor [shalt thou] shut thine hand (Deut. 15:7), and neither shalt thou stand against the blood of thy neighbor (Lev. 19:16) and [the other] shall not rule with rigor over him in thy sight (Lev. 25:53) and neglects the commandment of thou shalt open thine hand wide unto him (Deut. 15:8), and the commandment of that thy brother may live with thee (Lev. 25:36) and thou shalt love thy neighbor as thyself (Lev. 19:18) and deliver them that are drawn unto death (Proverbs 24:11), and many such things (ibid., sec. 2).

It has also been ruled that “To delay the redemption of captives by even a moment, where it can be expedited, is akin to spilling blood” (ibid., sec. 3).

 

16.       Jewish law attaches particular importance to the "redemption of captives" in the sense of bringing warriors to burial, beyond the general value of preserving "people's dignity", which I have pointed out above. Thus, for example, Rabbi Shlomo Zalman Auerbach, one of the greatest decisors of Jewish Law in the 20^th century, determined that even if  saving a life overrides the whole of the Torah—and hence soldiers should seemingly not be put at risk in a mission to extract fallen soldiers—"the blow to the morale of soldiers who see that if they fall, they would lie by the wayside with no one to care for them, is an important factor in the fighting spirit and thus constitutes saving a life" (Yehuda Zoldan, Shevut Yehudah ṿe-Yiśraʼel: Erets Yiśraʼel -- Gush Ḳaṭif, Manhigut ṿe-Tsava, Tsibur ṿe-hHevrah, Chap. 21(B)(4) (Eyal Fishler, ed., 2007)(Hebrew)). On a different, yet not unrelated issue, Rabbi Shlomo Goren ruled that the Sabbath may be violated in order to evacuate soldiers' bodies from battlefield, since "leaving fallen combatants on battlefield undermines combatants' morale" and "considering the particular emotional sensitivity we have toward our fallen sons" (Rabbi Re'em Ha'Cohen, Responsa Badei HaAron: Answers in Current Matters, part 5 (2013) (Hebrew)). In interpreting reg. 133(3) of the Defence Regulations as regards the burial of the dead and conducting negotiations for the redemption of captives and fallen individuals, we must therefore also consider these essential Jewish and Israeli values.

 

17.       The above suggests that a certain conflict arises among the various purposes of reg. 133(3) of the Defence Regulations, and hence one must proceed to the third and final stage of the interpretative process—distilling the ultimate purpose of the regulation after balancing the conflicting purposes, while keeping within the bounds of the language. In this stage, "account shall be taken, inter alia, of the relative importance of the violated right, the extent of its violation and the overall circumstances of the case" (the Manaa case [14], para. 47).

 

            As noted, burial of fallen enemies—terrorists or regular soldiers—by the Military Commander, instead of handing them over to their relatives, violates the right of the dead and their relatives to dignity. However, we should bear in mind that the authority granted to the Military Commander incorporates protection of the core of this right. It instructs him to bring the bodies to proper burial, and does not authorize him to hold them under inappropriate conditions. Furthermore, the burial of the bodies in Israel as a tool for facilitating negotiations for the repatriation of civilians and fallen soldiers held in enemy hands is temporary in nature. This is not, therefore, a question of denying the murderers a family burial plot, but rather delaying its establishment until the relevant security considerations have dissipated (whether because negotiations have ripened, or for other reasons).

 

            As opposed to this limited violation stand considerations that lie at the core of the purposes underlying reg. 133(3) of the Defence Regulations—namely, protecting state security and public safety from the threat of terrorism. Returning the civilians held in Hamas captivity, Avera Menigstu and Hisham al-Sayed, and bringing back the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory  for burial in Israel, themselves fall within the compass of these purposes. No less important, holding the bodies is significant due to its potential effect on the results of future negotiations—results that might have far-reaching implications for the security of the Israeli public at large (see, for example, the words of Justice E. E. Levy in HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4]; HCJ 6063/08 Shachar v. Government of Israel [82]).

 

            The proper balance between these purposes thus makes it clear that reg. 133(3) of the Defence Regulations seeks to authorize the Military Commander to regulate the proper burial of fallen enemies—be they terrorists or regular soldiers—when considerations of state security and public safety preclude their delivery to relatives. We would emphasize that the authority granted by the regulation is not restricted to situations involving some practical obstacle to handing over the corpses. The regulation does indeed seek to prevent the desecration of enemy bodies, but its security dimension outweighs the humanitarian one. The legislator wished to grant the Military Commander authority to weigh a large array of security considerations and decide the burial issue based on these considerations, despite the limited violation of the dignity of the dead and their relatives. Thus, for example, President A. Barak ruled in the Barakat case (pp. 5-6) that the Military Commander is authorized to order the date and manner of burial of "a person whose death was security related"—even if not within the framework of a violent confrontation with the security forces—if he believed that this was necessary in order to prevent an incendiary outburst of emotions and disturbance of public order:

 

The Military Commander has the authority to order that the funeral of a person whose death was security related will take place at night, with the participation of family members only. This authority originates in the general powers of the Military Commander to maintain order and security in the Territory. It is also anchored in the provisions of reg. 133(3) of the Defence (Emergency) Regulations, 1945.

 

Even more important to our case is the court ruling in the Abbas case [37], where President M. Shamgar determined that there had been no flaw in the discretion exercised by the Military Commander when he made the return of the body of a Hamas terrorist conditional upon revealing the burial spot of soldier Ilan Saadon of blessed memory, who was murdered by the organization's terrorists. Reasonableness "requires that an authority weigh all the relevant considerations deriving from the purpose of the law, and only them, and grant each one its appropriate weight." (HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 7 of my opinion )).  Hence, in the Abbas case, the Military Commander's authority to weigh considerations of the kind that lie at the heart of these proceedings was recognized.

 

            Thus, even if these things are not explicitly written in reg. 133(3) of the Defence Regulations, and certainly not in detail, purposive interpretation of the regulation makes it clear that the Military Commander is authorized to order the temporary burial of enemy dead for considerations of security, while showing respect to the dead. Indeed, contrary to the matter debated in the Jabareen [42], the Military Commander does not seek to rely on a general authorization to maintain order that makes no concrete reference to the possibility of preventing—or restricting—burial. What we have here is a dedicated provision regarding burial, in which case there is nothing to prevent us from resorting to interpretation in order to appraise its full scope (see and compare HCJ 10203/03 Hamifkad Haleumi v. Attorney General [83], paras. 30-33 per President M. Naor; HCJ 5100/94 Public Committee against Torture [17], 835-839).

 

18.       Before concluding the discussion on the question of authority, I will briefly address several issues. One concerns the primary arrangements rule, which states that "in matters falling within the framework of ‘primary arrangements', an administrative authority may only act with the clear authorization from the legislature" (Yoav Dotan, Primary Arrangements and the New Legality Principle, 42 Mishpatim 379, 411 (2012) (Hebrew)). In our case, the legislator was the one to outline the basic policy, determining that the Military Commander would be able to order—based on security considerations—the place, time and manner of burial for enemy dead. In the absence of complexity or extraordinary social disagreements, the implementation of the policy in the cases before us—the burial of terrorists' bodies, for security considerations relating to negotiations for the return of abductees and fallen soldiers—cannot therefore be seen as a primary arrangement (see and compare the Abu Arfa case [34], paras. 57-63 per Justice U. Vogelman; for general comments on the difficulty of identifying primary arrangements, see, for example, HCJ 4491/13 Academic Center for Law and Business v. State of Israel [84] para. 19, per President A. Grunis). In any case, in view of the said explicit authorization arising from the purpose of reg. 133(3) of the Defence Regulations and its language, the primary arrangements rule—even if assumed relevant to our case—cannot influence the outcome (ibid, para. 21; the Manaa case [14], paras. 14-15). I would also add, beyond what is required, that the constitutional layer that some attribute to this rule (ibid, paras. 22-25) has no bearing on the status of reg. 133(3) of the Defence Regulations, which comes under the aegis of the preservation of laws provision.

 

19.       Another issue has to do with the possible comparison with the "bargaining chips" case, in which this Court gave sec. 2 of the Emergency Powers (Detention) Law, 5739-1979, a restrictive interpretation, determining that it did not authorize the Minister of Defence to order the detention of a person who poses no danger—even if this might facilitate negotiations for the release of captives (the Does case [48]). I will say, at the outset, as my friend, Justice Y. Danziger also noted (in para. 25 of his opinion), that comparing the force of the injury to the dignity and freedom of an individual held in custody with that involved in burying a terrorist in a way that does not suit his wishes, poses a difficulty. Since the interpretation of the norm in question is largely influenced by the nature of the right being violated and the degree to which it is violated, this difference carries an interpretative significance that cannot be ignored. Furthermore, the restrictive interpretation preferred in the Does case is anchored in the purposes of the Emergency Powers (Detention) Law, reflecting an essential distinction between the detention of a person who poses a threat to state security and the detention of another who does not, himself, pose any threat. On the other hand, reg. 133(3) of the Defence Regulations—which, by its very nature, focuses on environmental security considerations, since the dead no longer pose any danger—does not provide any basis for a random distinction between temporary burial and permanent burial, or between burying the soldiers of the enemy's regular army and burying terrorists. The desire to expand the protection of a dead person's dignity has merit, but cannot serve as a basis for an arbitrary outcome that makes random distinctions between different situations—and in fact requires the legislature to pedantically specify every scenario that the Military Commander might encounter, even if it even if it is not substantively unique. One must keep in mind, as the majority justices in the Even Zohar case emphasized:

 

The status of the right to property as a constitutional right casts interpretative "rays of light"  toward the old legislation preceding the Basic Law, including the Defence Regulations enacted by the Mandatory legislator in 1945. However, the effect of those interpretative "rays of light" is limited and confined to the margins of the old legal provision, and they do not have the power to turn it on its head and change its deep essence (para. 10, per Justice A. Procaccia [emphasis added]; see and compare paras. 5 and 10 per Deputy President S. Joubran).

 

In the absence of purposive anchoring of the distinction between permanent and temporary burial, or between security considerations relating to disturbances during burial ceremonies and ones relating to the repatriation of civilians held by the enemy, the substance of reg. 133(3) of the Defence Regulations cannot be changed, despite the change that has taken place in the status of the "dignity of the dead".

 

20.       I will conclude the discussion on the question of authority by joining the result arrived at by my colleague Justice Y. Danziger, that "neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict," (para. 37 of his opinion)—certainly when required for a specific, real security need. This being the case, and considering the applicability of the Defence Regulations within both the State of Israel and the Territory (see, for example, HCJ 358/88 Association of Civil Rights in Israel v. Central District Commander [9], 532-533), there is nothing to support the distinction between bodies of terrorists who were residents of the Territory or residents of Israel—and the authority of the Military Commander extends to all of them.

 

            I shall only note that the rulings of the European Court of Human Rights mentioned by my colleague (Maskhadova v. Russia [91]; Sabanchiyeva v. Russia [90]) reinforce this conclusion, at least as concerns bodies of terrorists who were residents of Israel. The said rulings determined that the Russian authorities' decision not to return bodies of terrorist to their families disproportionately violated the right to privacy and family life (anchored in sec. 8 of the European Convention on Human Rights ( ECHR)). However, the Court's reasoning actually highlights the substantial difference between the Russian policy, which was rejected, and reg. 133(3) of the Defence Regulations, which we are now debating. First, in discussing the arguments made by the family members, the European Court noted (ibid, §138) that the Russian arrangement was particularly harmful:

 

In that it completely precluded them from any participation in the relevant funeral ceremonies and involved a ban on the disclosure of the location of the grave, thus permanently cutting the links between the applicants and the location of the deceased’s remains.

 

That is, the violation of rights is compounded, since the decision of the Russian authorities completely and irreversibly severed the link between the family members and the graves of their loved ones, excluding the families from the funeral ceremonies and withholding the location of the grave from them. These characteristics are clearly irrelevant to Israeli Law, which does not rule out the family's participation in the burial, permits the disclosure of the burial location, and certainly does not completely sever the tie between the family and its beloved deceased. Moreover, we should  recall that the burials in our case are temporary in nature, such that the terrorists' bodies will be returned to the relatives in the future, whether as part of an exchange arrangement or after such an arrangement will no longer be on the agenda.

 

            The ECtHR rulings, whose result was based on the sweeping, disproportionate nature of the Russian arrangement, also demonstrate the importance of the distinction between authority and discretion, showing that the question of authority is one thing (as it was indeed found to be in the Russian context) and the question of discretion is another. Furthermore, they suggest that the arrangement under reg. 133(3) of the Defence Regulations meets the tests of reasonableness and proportionality. As the European Court emphasized (ibid, § 144 146; see also paras. 233-238 in the Mashkhadova case) –  

 

The relevant official did not take the decision using a case-by-case approach and included no analysis which would take into account the individual circumstances of each of the deceased and those of their family members […] that was so because the applicable law treated all these questions as irrelevant, the decision of 15 May 2006 being a purely automatic measure […] Having regard to the automatic nature of the measure, the authorities’ failure to give due consideration to the principle of proportionality, the Court finds that the measure in question did not strike a fair balance between the applicants’ right to the protection of private and family life, on the one hand, and the legitimate aims of public safety, prevention of disorder and the protection of the rights and freedoms of others on the other.

 

In other words, the disproportionality of the decisions by the Russian authorities stems from the sweeping nature of the domestic legislation, which entirely rules out the return of terrorists' bodies to their families, automatically and without regard for the concrete circumstances,  and even denies them "some kind of opportunity for paying their last respects to the deceased person" (ibid, § 143). Expressio unius est exclusio alterius: there is nothing inherently wrong about the authorities burying terrorists' bodies instead of handing them over the relatives, as long as the authority is exercised on a case-by-case and proportional basis, while examining the overall considerations in the matter. As noted, the policy adopted by the Ministerial Committee on National Security Affairs, and the concrete decisions of the Military Commander are based on a case-by-case examination of the terrorist's identity and the circumstances of the event, and do not inherently rule out the family's participation in the burial ceremony. The rule is accompanied by an exception – an exception accompanied by case-by-case examination. This being the case, and in complete contrast to the Russian arrangement, these are proportional decisions in which there is no cause to intervene.

 

21.       We thus find that the Military Commander is authorized to order the place, time and manner of burying the bodies of fallen enemies—a burial that is often temporary in nature—when security considerations so dictate. Obviously, in exercising his discretion, the Military Commander must strike a balance between these considerations and the right to dignity of the dead and their family. However, as clarified with regard to other components of the Defence Regulations, authority is one thing and discretion is another (HCJ 1125/16 Mari v. Commander Military Forces in the West Bank [85], para. 20 per Justice M. Mazuz); HCJ 7040/15 Hamed v. Military Commander in the West Bank [86], para. 23 [hereinafter: the Hamed case]; the Alshuamra case, para. 17), and the limitations on how discretion is to be exercised do not blur the limits of the authority.

 

22.       Having reached the conclusion that the Military Commander is authorized to order the burial of terrorists' bodies for security considerations related to negotiating the return of civilians and fallen soldiers, we must now examine whether the concrete decisions in the matter of the Petitioners before us, with the general policy underlying them, meet the test of reasonableness and proportionality.

 

            I believe that the exercise of authority by the Military Commander, in accordance with the Ministerial Committee's policy, does not overstep the limits of reasonableness—whose bounds can be gauged, at least in the context of the violation of fundamental rights, using the proportionality tests as well (for a discussion on the relationship between reasonableness and proportionality (see HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank [87], para. 118 per Deputy President S. Joubran, and the sources cited there). In any case, there is a difference between the reasonableness test and the proportionality test, and between the proportionality test in general and the proportionality test under sec. 8 of Basic Law: Human Dignity and Liberty). Thus, the material presented by the Respondents, both in their pleadings and in the course of the hearing held ex parte, suggests that the burial policy is based on assessments by security agencies regarding its possible contribution to facilitating negotiations for the return of the civilians and the bodies of fallen IDF soldiers held by Hamas. The Ministerial Committee reached its decision following several discussions, in which it was presented with the assessments of the Israel Security Agency and the Coordinator for Prisoners and Missing Persons in the Prime Minister's Office, and heard the positions of the National Security Council and the IDF. These assessments suggest that the burial in Israel of "Hamas affiliated" terrorists, or terrorists who have committed "a particularly exceptional terrorist incident" of clear symbolic significance, would help further negotiations for the return of civilians Avera Mengistu and Hisham a-Sayed, and the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory,  even if the contacts for an exchange agreement have yet to reach an advanced stage. The Respondents also noted that "the political echelon holds, and will hold, periodic evaluations of the situation on this issue"—as required due to the violation of the dignity of the dead and their relatives (compare with the Hamed case, para. 27).

 

            The concrete decisions that are the subject matter of the petitions before us are also based on an appropriate factual foundation regarding the organizational affiliation of the terrorists, the "symbolism" of the terrorist event in which they died—from the perspective of the terrorist organizations—or both. Thus, Musbah Abu Sabih, the terrorist who murdered a Border Police officer and an Israeli civilian in October 2016, is identified with the Hamas organization (HCJ 285/17), like the sons of Petitioners 2 and 3 in HCJ 8503/16 (the first, who was involved in an attempted terrorist attack in July 2016, and the other, who is among those who murdered Rabbi Michael Mark of blessed memory in the same month), and the son of Petitioner 7 in HCJ 4466/16 (who carried out a suicide bombing in Jerusalem in April 2016). As for the body of Petitioner 4's son in HCJ 8503/16, it has been clarified that it is being delayed due to the dire circumstances of the terrorist attack he committed—the murder of the girl Hallel Yaffa Ariel of blessed memory in her sleep, in June 2016—and the "standing" this terrorist had gained among the terrorist organizations. Finally, the decision in the matter of terrorist Fadi Qunbar (HCJ 6524/17), who murdered four soldiers in a vehicle-ramming terrorist attack committed in January 2017, rests on the dire circumstances of the attack and on Hamas claiming responsibility for it. As noted, according to the assessments of the security establishment, Hamas attaches greater importance to the bodies of its people, or to bodies of terrorists who committed particularly severe terrorist acts—and so holding these bodies effectively promotes negotiations for the return of the civilians and the bodies of the fallen soldiers held by the organization.

 

            In these circumstances, there is no real doubt that the terrorists' bodies are delayed for a proper purpose—facilitating the repatriation of the civilians and fallen IDF soldiers held by Hamas, and influencing the negotiation in the matter in such a way as to minimize harm to the state's security and its citizens' safety—and not as an arbitrary punitive measure.

 

23.       Moreover, the factual foundation presented to us suffices to show the reasonableness of the measures that the Military Commander adopted—or intends to adopt—in accordance with the policy of the Ministerial Committee, in order to further the said purpose. However, the link between the measures and the purpose might weaken, even considerably, as the circumstances change. As noted, the bodies with which the petitions before us are concerned have been held by the State of Israel for quite a while – as long as 20 months (HCJ 4466/16). Indeed, the security considerations underlying the Ministerial Committee's policy and the Military Commander's decisions dictate that no rigid "expiry date" be set whereupon the Respondents would have to return the terrorists' bodies to their families. Furthermore, past experience teaches us that Rome was not built in a day, nor the bridge to an arrangement, and that it may take more than a year for deals to mature for the exchange of prisoners or bodies of fallen individuals (see, for example, HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister [88], and HCJ 9446/09 Karman v. Prime Minister [89], regarding the repatriation of Israeli soldier Gilad Shalit). At the same time, clearly one cannot condone the unlimited holding of terrorists' bodies, and the competent authorities must frequently review the changing circumstances, both relative to the general policy (i.e., the "concreteness" of a possible exchange deal), and relative to the "value" of keeping specific terrorists (i.e., their current importance in Hamas' eyes). Thus, without establishing a definite timeframe, it is possible to determine that, at this stage, the measures taken by the Military Commander in order to further the proper purpose of the policy underlying his actions fall within the bounds of reasonableness—subject to renewed periodical examination of the issue, as the Respondents have undertaken to do.

 

            In view of the security establishment's evaluation of the possible contribution of the policy in question to the security (and moral) interests involved in the repatriation of the civilians and fallen IDF soldiers, no real alternative has been presented to this policy and its implementation in the cases before us, with minimal violation of the dignity of the dead.

 

            It should be emphasized that the decision of the Ministerial Committee on National Security Affairs instructs that terrorists' bodies be returned to their family members, except in relatively rare situations. Reality also testifies to this: The large majority of terrorists killed in recent years during terrorist attacks have been returned to their families, whereas the petitions before us relate to only six bodies. In other words, the Respondents have avoided adopting a comprehensive, deleterious policy of holding terrorists' bodies, and have sufficed with an individual arrangement that attributes weight to the organizational affiliation of each terrorist and the nature of terrorist attack committed. Moreover, the Ministerial Committee and the Military Commander have ordered the burial of the relevant bodies—as opposed to holding them in some other manner that would be less respectful of the dead.

 

            Incidentally, and to complete the Jewish Law perspective, we should note a ruling made during the War of Independence. The first Sephardi Chief Rabbi of the State of Israel, Rabbi Uziel, addressed a situation where, in the midst of war and due to the constraints of the hour, a soldier was buried in the Ayelet Hashachar kibbutz, whereas his family and center of life were in Tel Aviv. It was ruled that, under the circumstances, this burial could be considered temporary, and the body could be transferred to the Nachalat Yitzhak cemetery (Ben Zion Meir Hai Uziel, Pisqei Uziel: BiShe'elot HaZman, 36 (1973) (Hebrew)). Despite the salient and clear differences between this case and ours, this serves to reinforce the obvious. A temporary grave fulfils the requirement, be it even preliminary, of the duty to bury the dead. Such is the case even if it causes a violation to the dignity of the dead and his family that justifies the transfer of the body at a later stage.

 

24.       Finally, the Military Commander's decisions also meet the cost-benefit test. As I noted above, we are concerned with decisions that  present a relatively minor violation of the right of the dead and their families to dignity, and not to the core of the right. What we are concerned with is essentially temporary burial that does not sever the link between the terrorists' families and their dead, and does not necessarily prevent them from visiting the temporary graves or even taking part in the funeral (subject, of course, to relevant security considerations). The proper burial of the terrorists, in accordance with their religious customs, and in a way that allows future identification of their bodies, further minimizes the violation of their dignity. Therefore, in weighing this violation against the substantial security purposes underlying the policy, by virtue of which the Military Commander's decisions were made, the scales tip, in principle, in favor of the latter.

 

            One should bear in mind that the policy adopted by the Ministerial Committee on National Security Affairs, in light of which the Military Commander acted—and intends to act—is restricted and limited. It only relates to the bodies of terrorists identified with Hamas, or ones whose brutal actions earned them "value" in the eyes of this terrorist organization. Furthermore, the Military Commander's decisions concern terrorists who went on blind, brutal killing sprees—even if, fortunately, they were unable in some cases to put their evil plans into practice (see and compare, for example the Abu Hdeir case, para. 33 per Deputy President E. Rubinstein). As long as there is real cause to assume that the Military Commander's decisions are effective—in the sense that they can further the security interests involved in repatriating the civilians and the bodies of fallen soldiers held by Hamas, even if not in any immediately apparent way—they fall within the bounds of reasonableness and proportionality, and we should not intervene.

 

25.       In closing, purposive interpretation of reg. 133(3) of the Defence Regulations shows that the Military Commander holds broad authority to order the burial of bodies of enemy terrorists or fallen soldiers, based on considerations of protecting the State's security and the safety of its citizens, while respecting the dignity of the dead. There is no doubt that repatriating civilians and fallen IDF soldiers held by the enemy, and minimizing the related security cost, lie at the heart of these considerations. Therefore, the Military Commander is authorized to order the burial of terrorists' bodies in order to further that purpose. The distinction between the sphere of authority and that of discretion is essential. Even when there is justification for limiting the way the authority is exercised, one cannot simply ignore, at the stroke of a pen, the language of the authorizing norm and its purposes, and give it restrictive arbitrary "interpretation". In these cases, the "rays of light" radiated by the Basic Laws will illuminate the discretionary sphere, but they will not change the basic nature of the authorizing norm and undermine its purposes.

 

            The material presented to us suggests that the Military Commander’s decisions before the Court are based on a full, up-to-date, factual foundation, and meet the tests of reasonableness and proportionality. Thus, were my opinion accepted, we would determine  that the Military Commander is authorized to continue to act reasonably and proportionately, within the bounds of his authority, to order the burial of terrorists' bodies.

 

26.       Considering the importance of these issues, and to avoid misunderstanding in a very nuanced issue, I will summarize my position as it relates to the discretionary plane and to the exercise of the authority. I will first state the obvious, which might fall between the stools and the table of terrorism: The desirable situation would be to return the bodies of the dead, including terrorists, to their families—in accordance with the rule laid down by the Ministerial Committee, and without exceptions. However, the abhorrence and brutality exhibited by terrorist organizations, who hold civilians and bodies of fallen IDF soldiers and demand a price not only for those held alive in their custody but for the dead as well, leave no other recourse. In this reality, which is also forced upon us, one has to walk a tightrope between achieving the objective of repatriating Israeli civilians and bodies of fallen IDF soldiers on the one hand, and on the other hand maintaining the dignity of the dead—be they even terrorists. And, of course, if the law recognizes the feelings of terrorists' relatives, then surely the cry of the families of the living and the dead held by Hamas will not let us rest. In other words: acknowledging reality, listening to the voice of the living who have not returned home and to the voice of the blood of our brothers who have not been brought to rest, and upholding the basic principles of the State of Israel as a Jewish and democratic state.

 

            Of particular importance, in this regard, is the exact delineation of the Respondents' policy, according to which—as the attorney for the State has made clear—holding terrorists' bodies constitutes a rare exception. That is, even bodies of terrorists falling under both relevant categories will be buried temporarily only against a background of concrete negotiations for the repatriation of civilians and the bodies of fallen soldiers held by the terrorist organizations. The transfer of bodies should not be prevented in anticipation of what the future might bring. The security establishment is supposed, as it has done in this case, to exercise case-by-case discretion with regard to facilitating negotiations for the return of the Hamas-held civilians and fallen IDF soldiers. This is a very delicate matter. We should not turn a blind eye to the nature of negotiations in such sensitive matters between the State and a terrorist organization, even by means of a third party. A terrorist organization might declare that there is no negotiation in progress, where in reality this is not the case but only another stage in the negotiation. What matters is that if negotiations are indeed nonexistent, and no concrete contacts of any kind are underway for a deal, the bodies are to be returned. However, as long as there is a chance that is neither hypothetical nor slim of further  negotiations, there is no obligation to return them. Another important point is, as noted above, that the dignity of the dead requires their burial. A situation in which terrorists' bodies are held over time in some form other than burial—be it even, as in the cases before us, by request of the families—might excessively violate the dignity of the dead and the principles that are binding under international law. In this case, there is no need to quantify and draw time limits, but, as noted, the more time that elapses, the greater the need to bury the corpse, and the time dimension also constitutes a consideration with regard to its time of return. Again, there are no set formulas. This depends on the contacts, the negotiations, and the point that they have reached. In our case, based on the material submitted, it seems that this how the Respondents are acting in this case—although, as I see it, it is time to bring the bodies being held to temporary burial. Of course, the Ministerial Committee on National Security Affairs and the Military Commander must periodically review the existing policy—and how it is implemented in specific cases—and avoid the burial of bodies in Israel when this does not contribute to facilitating negotiations for the repatriation of the Hamas-held civilians and fallen soldiers.

 

27.       All that remains is to express the hope that a burst of humaneness—or at least the Hamas's interest—will overtake the madness of terrorism and allow the dead to rest in peace. If exercising the authority under reg. 133(3) of the Defence Regulations can accelerate the safe return of civilians Avera Mengistu and Hisham a-Sayed to their families, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, I shall be content. I would deny the petition without an order for costs. In my view, it would be right to rescind the interim order and bring the two remaining bodies to temporary burial as soon as possible, in such place as shall be determined by the Military Commander.

 

 

 

The petitions are granted by the majority opinion of Justices Y. Danziger and G. Karra, contrary to the dissenting opinion of Justice N. Hendel, according to which the petitions should be denied.

 

Given this day, 26 Kislev 5778 (December 14, 2017).

 

 

 

 

HCJ 781-15

 

 

Petitioners:	Etai Arad Pinkas Yoav Arad Pinkas Anon. Anon. Anon. Anon. The Association of Israeli Gay Fathers Tammuz International Surrogacy Agency Ltd.

v.

 

Respondents:	1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996
	2. The Knesset

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior, IsrSC 61(2) 202 [2006] https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

[22]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 [2006].

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

[42]     HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56(3) 640 [2002].

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

[49]     HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security, (June 13, 2017).

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

[53]     HCJ 142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 [1990].

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

[56]     HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57(1) 235 [2002].

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20^th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise – a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3^rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13^th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cf.  Sessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).

 

 

HCJ 9029/16

 

 

Petitioners:                1. Yitzhak Aviram, Adv.

                                    2. Shachar Ben Meir, Adv.

                                                v.

Respondents:             1. Minister of Justice

                                    2. The Knesset

                                    3. Judicial Selection Committee

                                    4. Attorney General

                                    5. MK Robert Ilatov

                                    6. MK Isaac Herzog

 

On behalf of the Petitioners: Pro Se, Meir Broch, Adv.

On behalf of Respondents 1, 3-4: Yonatan Berman, Adv.

On behalf of Respondents 2, 5: Gur Bligh, Adv.

On behalf of Respondent 6: Eran Marienberg, Adv., Shimon Baron, Adv.

 

Petition for order nisi and interim order

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice N. Hendel, Justice U. Vogelman, Justice I. Amit

           

           

Israeli Supreme Court cases cited:

[1]       HCJ 3250/13 Hebrew University of Jerusalem v. Minister of Finance, (August 9, 2015)

[2]       HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485 (1996)

[3]       CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar, (Dec. 19, 2010)

[4]       LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. (Aug. 28, 2016)

[5]       HCJ 5167/00 Weiss v. Prime Minister of the State of Israel, IsrSC 55(2) 455, 468 (2001) [https://versa.cardozo.yu.edu/opinions/weiss-v-prime-minister]

[6]       HCJ 3002/09 Israeli Medical Association v. Prime Minister of Israel, (June 9, 2009)

[7]       HCJFH 219/09 Minister of Justice v. Nir Zohar, IsrSC 64(2) 421 (2010) [https://versa.cardozo.yu.edu/opinions/minister-justice-v-zohar]

[8]       HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014)

[9]       HCJ 9/82 Virshubski v. Minister of Justice, IsrSC 36(1) 645 (1982)

[10]     HCJ 849/00 Shatz v. Minister of Justice, IsrSC 56(5) 571 (2002)

[11]     HCJ 1179/90 Ratz Faction v. Ovadia Eli, IsrSC 44(2) 31 (1990)

[12]     HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986)

[13]     HCJ 787/89 Likud Faction v. Haifa City Council, (Nov. 1, 1989)

[14]     HCJ 3250/94 Oren v. Petah Tikva City Council, IsrSC 49(5) 17 (1995)

[15]     CA 2663/99 Shamgar v. Ramat Hasharon Local Council, IsrSC 54(3) 456 (2000)

[16]     HCJ 5743/99 Duek v. Mayor of Kiryat Bialik, IsrSC 54(3) 410 (2000)

[17]     HCJ 1020/99 Duek v. Mayor of Kiryat Bialik, (Feb. 7, 2001)

[18]     AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council, (Feb. 21, 2016)

[19]     AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council, (Aug. 18, 2016) [https://versa.cardozo.yu.edu/opinions/ruchamkin-v-bnei-brak-municipal-council]

[20]     CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

 

Canadian Supreme Court cases cited:

[21]     Re: Resolution to Amend the Constitution [1981] 1 S.C.R. 753

 

 

 

JUDGMENT

 

Justice N. Hendel:

Is the Knesset under an obligation to ensure that a member of the opposition serves on the Judicial Selection Committee at all times? This issue raises various questions pertaining to the constitutional regime in Israel and the workings of government. It is a delicate subject. On the one hand, it involves fundamental principles of the Israeli constitutional regime. The Judicial Selection Committee is a rarity in that it brings together representatives of the three branches of government—the legislature, the executive and the judiciary. The product of this encounter influences—and might even shape—the judiciary's character. On the other hand, the election of the Knesset's representatives to the Committee is effected by a secret ballot of the Knesset Members. Looking down from above, the Court is called upon to decide upon the characteristics of a Knesset Member who is supposed to select those who are to occupy the bench. But the petition has been submitted. It raises a legal question that must be settled, and the angel of justice commands “Decide!” The petition thus raises an important, delicate and complicated issue.

A. Facts and Arguments

1.         The Judicial Selection Committee (hereinafter: the Committee) consists of nine members: three Supreme Court justices (including the President), two government ministers (among them the Minister of Justice), two representatives of the Israel Bar Association, and two members of the Knesset (sec. 4(b) of Basic Law: The Judiciary). The Members of Knesset on the Committee are elected by the Knesset by secret ballot (ibid; sec. 16(1) of the Courts Law [Consolidated Version], 5744-1984). For over 25 years, since 1990, the Knesset has elected at least one Committee member from the opposition parties in voting for the Judicial Selection Committee. The same happened during the last election to the Committee, held on July 22, 2015. It was during this vote that Respondent 5, Member of Knesset (MK) Robert Ilatov, was elected as a member of the Committee. MK Robert Ilatov's party, Yisrael Beitenu, sat in the opposition at the time. There was no other Member of Knesset selected to the Committee from an opposition party. Then, on May 25, 2016, the Yisrael Beitenu party joined the coalition. Since then, no Member of Knesset from the opposition sits on the Committee. This, in a nutshell, is the background of the petition.

2.         The Petitioners' main argument is as follows: The practice of electing a Knesset Member on behalf of the opposition to the Judicial Selection Committee, which no one disputes, is a binding constitutional custom. By virtue of this custom, a Committee member whose party crossed over from the opposition to the coalition after that member was elected is obligated to resign, at least where there is no Knesset Member left on the Committee whose party belongs to the opposition. The Knesset is under an obligation to appoint a member of the opposition to the Committee instead of the resigning Committee member. Such is the state of affairs as regards MK Ilatov. The Petitioners have other claims as well. They believe that the desired outcome should be arrived at in view of the existence of a binding, enforceable agreement between the opposition and the coalition, or by virtue of a constitutional obligation that exists even in the absence a custom or an agreement.

            Respondents 1-5 (hereinafter: the Respondents) believe that the petition should be dismissed in limine for laches. On the merits, they dispute the Petitioners' position. They hold that constitutional custom has not as yet been declared a binding normative source in Israel. They added that the specific practice of electing at least one Member of Knesset from the opposition to the Committee fails to meet the conditions for the existence of a constitutional custom. It was emphasized that this practice does not, in any case, include the resignation of an incumbent Committee member. In other words, in any event, the practice only pertains to the election of a member on behalf of the opposition parties at the outset, but not to the resignation of a Committee member whose party moved from the opposition to the coalition. As the Respondents see it, even if the existence of a constitutional custom were to be established, it would have been an invalid custom, given the existence of an explicit, detailed constitutional arrangement. The Respondents also disagree with the claims regarding the existence of an enforceable agreement or independent constitutional obligation under which MK Ilatov must resign. Respondent 6 is the Chairman of the Opposition. He supports the Petitioners' position for the reasons detailed in their petition.

 

B. Discussion

3.         Examining a claim of laches in submitting a petition requires examining both the “subjective” delay, from the petitioner's standpoint, and the “objective” delay, which concerns the consequences of the delay from the authority's standpoint. When weighing these perspectives against each other leads to accepting the claim of laches, one must examine the effect of rejecting the petition on the broad public interest (HCJ 3250/13 Hebrew University of Jerusalem v, Minister of Finance [1], para. 19); that is, whether there is serious violation of the rule of law.

            Subjectively speaking, the Petitioners significantly delayed before taking any kind of action. Yisrael Beitenu joined the coalition in May 2016. For around six months, the Judicial Selection Committee went about its normal business. Only in November 2016 did the Petitioners make a move. They first approached the Minister of Justice, and then filed the present petition. The fact that the Yisrael Beitenu party joined the coalition was universally known, as was MK Ilatov's membership on the Committee. The practice of electing at least one Knesset Member from the opposition to the Committee was also within the realm of public knowledge. Indeed, even before Yisrael Beitenu joined the coalition, MK Issawi Frej brought the matter to the attention of the Speaker of the Knesset. In response, the Knesset Legal Advisor, Adv. Eyal Yinon, responded that there was no legal basis to demand MK Ilatov's removal from his tenure, even if Yisrael Beitenu were to join the coalition. Thus, the matter was already clarified by the Knesset Legal Adviser in May 2016. In this state of affairs, there is no satisfying explanation for the long period of time that the Petitioners sat idly by.

            The subjective delay and the objective delay are always intertwined. A period of six months, in itself, does not automatically mean the rejection of a petition by this Court or its further discussion. The subjective delay is examined vis-à-vis its objective consequences in the period of time that elapsed until the petition was submitted. In our case, the six months since Yisrael Beitenu joined the coalition saw the Judicial Selection Committee work intensely. Tens of judges and registrars were selected for office in the various instances. This represents action on a large scale, which has implications and poses difficulty for accepting the Petitioners' claim that the current composition of the Committee is unconstitutional. Add to this another important detail—the timing of the petition's submission. It is no secret that four new judges are expected to be selected to the Supreme Court this year. This is an exceptional occurrence in its scope. The candidates' names have long been selected and published. The Committee started its proceedings to review the candidates before the petition was submitted. Candidates were interviewed. MK Ilatov participated in said proceedings, or at least some of them. The Petitioners knew all about this, and did nothing. They themselves say, in their petition, that this is one of the key reasons for its submission, and the key argument for granting the interim order requested (but not granted). On reading this, one infers that the petition was also meant to influence the actual identity of the new judges to be selected. The relevance of the matter lies, as mentioned, in the consequences of the delay. The selection process is underway. Steps were taken by the Committee and its members to move the matter forward.

            In the hearing before us, the Petitioners said they believed that the matter was handled by some internal Knesset mechanism. Only when they realized that MK Ilatov continued his tenure as a member on the Committee did they turn to the Minister of Justice and the Court. They also added that, in any case, the severity of the matter warranted its discussion on the merits. As noted, in light of the Committee's activity, including publications in the Official Gazette, the only possible determination to be made is that this is a case of subjective and objective laches. This leaves the issue of public interest and the harm to the rule of law. This issue is more complex than the various types of laches claims. I shall elaborate below, but for the moment, I will suffice in stating that the arguments raised in the petition are not simple from a factual or legal perspective. On the merits, some of the arguments are tenuous, the very least. This consideration carries weight when examining whether the public interest overrides objective and subjective laches (HCJ 7111/95 Center for Local Government v. Knesset [2], 499). I believe that under the present circumstances, as detailed above and as will be explained below, the petition should be dismissed for laches. With that said, and in view of the need to examine the question of public interest due to the importance of the issue itself and in order to prevent ambiguity in that regard, we will now address the substantive disagreement between the Parties.

 

C.        On Constitutional Custom

            4.         As stated, the Petitioners premised their petition on three primary arguments: constitutional custom, obligation by agreement or obligation by law deriving from the principles of the system, or a conflict of interests. I believe that the Petitioners have failed to  demonstrate the validity of two of the arguments. I will not dwell on the analysis. Suffice it to say that the Parties have not presented any agreement between actual parties that imposes specific obligations upon the parties—as opposed to a general, ingrained practice. Neither was any legal source presented that requires accepting the Petitioners' position, assuming even the absence of any custom or agreement. Beside that, but not marginally, it is worth addressing a number of points that come up in the petition with respect to constitutional custom. They are of great importance in terms of governance and administration. The Petitioners' chain of reasoning in this context was forged of several links. Each of them raises a complexity of its own from the factual or doctrinal perspective. My intention is to address important points that were raised, which should not be left hanging unaddressed in legal space. The purpose of the following discussion is to note the highlights, without exhausting all of the questions and establishing a conclusive position.

 

5.         The status of constitutional custom in Israel. In various contexts and circumstances, a “custom” or “practice” may acquire binding legal force that can decide rights and obligations under law (CA 1773/06 Shmuel Elef v. Kibbutz Ayelet HaShahar [3], paras. 46-50; LCA 5247/15 Theophilos Giannopoulos v. Himnuta Ltd. [4], para. 21. For the distinction between “custom” and “practice” and the question of the force of customs in various areas of law—including administrative, constitutional, civil and criminal law—see Gad Tedeschi, Custom in Our Contemporary and Future Law, 5 Mishpatim 9 (1973) (Hebrew)). Sometimes, the law itself establishes the legal force of a practice or custom (see, for example, sec. 15 of the Contracts (General Part) Law, 5733-1973). In fact, among the contexts in which the legislature chose to grant binding force to a custom is a certain aspect of the Knesset's work (sec. 19 of Basic Law: The Knesset, titled “Procedure and Rules”: “The Knesset shall itself prescribe its procedure; insofar as such procedure has not been prescribed by Law, the Knesset shall prescribe it by its Rules; as long as the procedure has not been prescribed as aforesaid, the Knesset shall follow its accepted practice and routine”).           

            The justifications for recognizing the binding legal validity of custom are different and diverse. First and foremost, one can point to the parties' consent to grant a given practice binding legal force. At times, such consent may take the form of a general law; at times, a private law—e.g. a contract; and at times, a custom. Notwithstanding the difference among the cases, the basis for legal obligation remains the same: the parties' consent, although, of course, the levels of obligation span a broad scale, from a very real obligation to a lack thereof. Considerable weight also attaches to considerations of reciprocity and reliance, which sometimes surround the custom.

            Case law and the literature have raised the question of whether binding force can be attributed to constitutional or administrative custom under Israeli Law (see Shimon Shetreet, Custom in Public Law, Klinghoffer Book on Public Law, 375 (Yitzhak Zamir, ed., 1993) (Hebrew) (hereinafter: Shetreet); HCJ 5167/00 Weiss v. Prime Minister [5], 468 , per President A. Barak (hereinafter: the Weiss case)). No hard-and-fast rules have actually been laid down in this matter as yet. This Court has even refrained from doing so, choosing to emphasize that it is willing to assume that a custom exists, and accordingly continue its analysis of the issue before it (ibid.). It would even appear that this Court has expressed some support on a number of occasions in the direction of recognizing constitutional custom, or “constitutional convention” (see, for example, HCJ 3002/09 Israeli Medical Association v. Prime Minister [6], para. 9, per President D. Beinisch, regarding the status of the institution called “Deputy Minister with Ministerial Status”; the opinion of Justice I. Zamir in the Weiss case, page 477, regarding how a “transitional government” functions. As concerns the relationship between “constitutional custom” and “constitutional convention”, see Shetreet, pp. 386-391, which links these two concepts and their legal status in Israel). Thus, for example, Justice A. Rubinstein wrote in HCJFH 219/09 Minister of Justice v. Nir Zohar [7], para. 5 of his opinion (hereinafter: the Zohar case):

 

I am very much in favor of the doctrine of the constitutional convention described by President Beinisch. In my view, over and above the criteria that she mentioned, recognition of the institution of a constitutional convention has educational and moral importance. It radiates stability and continuity in the normative system and makes it possible – even in a state in which the work of establishing a constitution has not been completed and whose constitutional institutions are not fully rooted in a constitution which is written like the rest of its law – to instill a sense of a constitutional tradition that passes from generation to generation. In my view, this is a matter of invaluable importance.

 

The Petitioners' argument in this regard thus carries weight. There are certainly grounds to believe that, under certain circumstances, a constitutional custom of binding legal force will be recognized (see, for example, Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. I, 95-96 (5th edition, 1996) (Hebrew)). I would add that a judge recognizes the advantage of the approach whereby a question left undecided should not be ruled upon if enquiry is not required to decide the case. However, I believe that a healthy constitutional system striving for evolution and clarity can expect that fundamental questions will not remain unanswered for decades (see what I said with regard to the definition of a “fundamental right” in my opinion in HCJ 3752/10 Amnon Rubinstein v. Knesset, [8]).  At any rate, as noted, and as shall be explained, since the petition should be dismissed for laches, and since we are concerned with not just the practice but also its interpretation, I do not believe this to be the case that warrants the first ruling on the issue of the binding validity of constitutional custom.

            And yet, it would be proper to proceed along the stages of analysis. The reason for this is that leaving the important issue undecided might convey a misleading message in regard to the lex ferenda as well, despite the Knesset's conduct in the matter for 25 years, and the evolution of the case law and the law on the opposition’s status in the workings of government. In fact, this approach of further analysis without deciding the fundamental issue is in keeping with the case-law tradition, which establishes preconditions for the existence of a constitutional custom without binding rulings on its validity.

 

6.         The existence of a constitutional custom in our case. Case law has suggested three cumulative tests to determine the existence of a constitutional custom in a concrete case, without, as noted, deciding the question of whether this constitutional institution exists in Israel (the Zohar case, para. 32, per President Beinisch). The Parties’ attorneys addressed the meeting of the first two tests. But in my opinion, a closer look at the case law reveals a third test that should be recognized and developed.

            The first test is whether the custom exists, i.e. whether it is possible to point to the existence of an entrenched practice. This is an empirical question. The second test is whether the existing custom is recognized and internalized as such. Is there a “sense of obligation”? That is, did the parties intend to imbue the practice with binding significance when carrying it out. Thus, for example, as opposed to a practice perceived by the parties as desirable but non-binding, or by analogy to contract law—is it merely a kind of gentlemen's agreement that each party may stray from at will with no legal repercussions? The difference between the first two tests is that the first one involves examining conduct historically. It is an objective test. The second test examines how the relevant community perceives the conduct in question. It is a subjective test. Or if you prefer – a factual element versus a mental element. The third test relates to the existence of a logical rationale establishing the practice. I myself would examine to what extent the custom takes normative precedence in light of constitutional principles. This is a normative test.

            At this stage, let us consider the first two tests. The Parties disagree on both. Further along our discussion, we shall turn the magnifying glass to the third test. Although this test occasioned no debate or disagreement between the Parties, it is of great significance for the debate.

7.         The existence of a custom. Is the election of an opposition member of the Knesset to the Committee an entrenched practice? The Parties are not in disagreement about the existence of an entrenched, consistent practice whereby, in electing the Committee, at least one Knesset Member belonging to an opposition party is chosen. This practice has been maintained continuously, without exception, since 1990. During those years, there have been many elections to the Committee. In all of them, at least one Committee member was chosen from the opposition parties. The dispute between the Parties relates to the duty of a Committee member to resign if his party has moved from the opposition to the coalition. According to the material submitted by the Parties, this kind of situation has never occurred before. The Respondents deduce from this that there is no practice in place, and certainly none that is consistent and entrenched. The Petitioners contest this position. In their view, the practice of electing a Committee member on behalf of the opposition parties also incorporates the resignation of the Committee member who was voted in on the opposition-member “ticket” but whose party crossed over at some point to the ranks of the coalition. A more sophisticated version of the argument is that this obligation arises when there is no Committee member left from the opposition parties, as in the circumstances of our case, and this by virtue of the principle of representation for the opposition on the Committee. Thus, it is the interpretation of the practice that is disputed on this plane.

            The question of how to interpret the practice of electing at least one member from the opposition to the Committee is a good one. On the one hand, the Petitioners have a point. If an individual is voted into a given body by virtue of belonging to one political sector or the other to begin with, his conversion to another political sector upsets the balance meant to be created in the composition of said body. On the other hand, the Respondents' argument also stands on firm ground. There is no denying the difference between elections to the Committee and the resignation of an incumbent member. In HCJ 9/82 Virshubski v. Minister of Justice [9] (hereinafter: the Virshubski case), the Court was asked to rule that the membership of a member of the Judicial Selection Committee expired. The background to this petition was the election of that Committee member, MK Dov Shilansky, by virtue of being a Member of Knesset, and his subsequent appointment as deputy a minister. This is what the Court wrote in its decision:

                        The question before us is not whether the Knesset can elect one of its members who is a deputy minister as a member of the Committee, but whether a Member of Knesset who was duly elected to the Committee is disqualified from continuing to serve as a member of that Committee for the interim period pending the election of two other members to the Committee by the new Knesset following his appointment as a deputy minister during the term of the new Knesset. The two questions are not the same, and even if we were to conclude that a deputy minister should not be elected as the Knesset representative on the Committee to begin with, this still does not require the conclusion that in a case like the one before us, the appointment as a deputy minister ends the tenure on the Committee (ibid., p. 649).

 

Let us recall that we are now dealing with interpretative indications as to the scope and content of the practice of electing a Member of Knesset on behalf of the opposition to the Committee. The existence of a custom, after all, is an empirical question. Hence, the interpretation of the custom also involves an empirical aspect. Under this prism, all there is to conclude from what has been said is that there is no necessity to accept the analogy that the Petitioners wish to draw between appointment from the outset and resignation after the fact. A custom in which one criterion applies to choosing the members while another applies to the resignation of an active member makes sense. However, the flip side of the coin is that this position is not necessarily ruled out. After all, the purpose behind the practice of appointing a member of the opposition is the latter's representation on the Committee. This purpose does not change after the election to the Committee (see the opinion of Justice S. Levin in the Virsbubski case). One way or the other, and on the whole, this is not the place to fully explore this question of a change in party affiliation. The letter of the law likewise highlights the difficulty, as we shall discuss below.

8.         Sense of obligation. The Respondents argue, in the framework of the second test for the existence of a constitutional custom, that the practice of electing a Committee member on behalf of the opposition was, in any event, not accompanied by a sense of obligation. The indications adduced for this include, inter alia, the fact that Committee members are selected by secret ballot; that at least on one occasion, two members from the coalition put in their candidacy for the Committee; that in the past, two members on behalf of the opposition served on the Committee; that there have been various bills proposed in the past to institutionalize the custom through legislation. These never matured into legislation. On the other hand, the Petitioners believe that these data in fact support their position that the custom was attended by a sense of obligation.

            A remarkable and surprising fact is that there is no controversy among the Parties about the existence of a practice to select at least one Knesset Member to the Committee from the opposition parties (a practice called “informal agreement” by the Respondents and “constitutional custom” by the Petitioners). The reason for this is that any Knesset Member can nominate himself for election to the Committee, and the elections are held secretly. To ensure the election of at least one Knesset Member from the opposition under this voting system, a carefully planned political mechanism needs to be created. As an illustration, sec. 6(3a) of the Courts Law prescribes that among the Knesset's representatives on the Committee there shall be at least one female Member of Knesset. Section 62(d)(7)(c) of the Knesset Rules of Procedure establishes a mechanism for achieving this goal: “If a female Knesset Member … was not elected to the Committee… a second vote shall take place immediately. In the second vote, only the two female Knesset Members, who were candidates in the first vote, shall stand for election, and the female Knesset Member who received the largest number of votes shall be considered to be the one elected instead of the male Knesset Member who received the second largest number of votes”. As opposed to this, no such mechanism governing the election of a member of the opposition was laid down. Therefore, upon the institutionalization of the practice for doing so, it would have been necessary to create a sophisticated mechanism—and more importantly to our matter: a deliberate and calculated one—that would ensure the appropriate vote in advance. In some cases, the system to ensure such an election was to nominate only one Knesset Member from the coalition for election. However, this was not always the case. Thus, for example, when electing the representatives of the 18th Knesset to the Committee in 2009, two Knesset Members from the coalition parties at the time were in the race – MK David Rotem and MK Eitan Cabel – and still a representative of the opposition was elected. We therefore learn that despite the difficulty involved, since 1990, the practice has been rigorously maintained. This suggests devotion to observing the practice and a high sense of obligation.

            On the other hand, the Respondents' arguments in this context are not convincing. For example, the fact that in some cases two Knesset Members from the opposition were elected cannot testify to a lack of commitment to elect at least one Committee member from the opposition parties. At best, this fact can tell us that there is no custom whereby at least one of the two Knesset representatives on the Committee should belong to the coalition. A consideration of the whole picture suggests that the practice to elect at least one Member of Knesset from the opposition was met with recognition and internalization. The practice gained true weight. It became a generally recognized given. No one challenged its validity. Let us also recall that even in the circumstances of our case, no one actually challenged the force of this practice. In the present Knesset, MK Ilatov was elected as a Committee member from the opposition benches. Even when his party moved to the coalition, the Knesset Legal Advisor addressed the issue and opined that there was no flaw involved. Without taking a position, this at any rate reinforces the force of the custom, if only at the stage of electing the Committee members, as well as the understanding that it must be honored.

            Furthermore, the practice was observed reciprocally, which is of great significance when examining the sense of obligation. A look at the historical list of Knesset representatives on the Committee from the opposition parties shows that the role was filled by many different parties, alternating among them, in a kind of game of musical chairs. Just as the government changed, so did the identity of the party benefiting from the practice. The reciprocity reinforces the validity of the practice and reveals greater devotion to it. One can sum up and say that the practice of appointing a member on behalf of the opposition parties to the Judicial Selection Committee has been accompanied by a sense of obligation for a long period of time.

9.         The existence of a custom alongside a constitutional arrangement. Before we address the third test for the existence of a constitutional custom, we should consider another reservation of the Respondents, regarding the relationship between custom and law. Let us assume that we have cleared all the obstacles so far. Constitutional custom has been determined to be a legally valid institution in Israel. The existence of a specific custom has also been recognized. However, on a general level, such recognition is no guarantee that the Court will necessarily enforce the continuation of the custom. What does this mean? The Knesset and MK Ilatov argue that, according to case law, wherever a constitutional arrangement is regulated in detail in law, a constitutional custom will not hold. This was established, according to them, in President Barak's ruling in HCJ 849/00 Shatz v. Minister of Justice [10]: “What we are saying here has no bearing on the ‘constitutional conventions’, since they are based upon  an absence of a constitutional arrangement or a lacuna” (ibid., p. 575; and see HCJ 1179/90 Ratz Faction v. Ovadia Eli [11], pp. 35-36). Indeed, we have a constitutional arrangement. Basic Law: The Judiciary, the Courts Law and the Knesset Rules of Procedure establish the make-up of the Committee, including the affiliation of its members to the various governmental authorities or to a professional body. The mechanism for electing the Knesset's representatives on the Committee is laid down. The law or the Rules of Procedure even explicitly address questions of continued tenure following changes, and of failure to meet the election criterion (such as adequate representation for women). In none of these is there a trace of the remedy sought by the Petitioners. At the same time, the possibility of resignation by a Committee member is not explicitly ruled out, be it in general or in the circumstances that are the subject of the Petition. The question is, then, whether a situation like the one before us is addressed in law in the form of a negative arrangement, or whether it is a lacuna that the legislation does not at address.

            It is hard to make a case for this being a negative arrangement. In other words, it is hard to accept the idea that the purpose of the law is to prevent a Committee member from resigning given the existence of a constitutional custom meant to ensure membership on the Committee on behalf of the opposition parties. Indeed, at times the letter of the law is explicit in such a way as to render the interpretative dilemma superfluous. Thus, for example, the law specifically states that when a Knesset has reached the end of its term, the Members of Knesset it elected  to the Committee will continue to serve on the Committee until the new Knesset elects other members to replace them (sec. 6(1) of the Courts Law. Compare to HCJ 5/86 Shas Faction v. Minister of Religion, IsrSC 40(2) 742 (1986), regarding the members of the committee for appointing rabbinical court judges). From the explicit letter of the law, one can also infer in which cases a Committee member ceases to serve on the Committee immediately. This happens, for example, when a minister sitting on the Committee has left office (ibid., page 750; the Virshubski case, p. 649). According to the Respondents, in the present case too, we can learn from various details of the legislative arrangement that a Committee member is under no obligation to resign in circumstances like those before us. This can be understood, for example, from the provision of the Knesset Rules of Procedure that provides: “Each of the Knesset Members, who is not a minister or a deputy minister, is entitled to offer his candidature to an appointments committee” (sec. 62(b)3 of the Rules of Procedure). I have considered this provision, as well as other provisions that the Respondents have pointed to. I believe they were unable to point to an arrangement from which one can conclude, explicitly or implicitly, that the remedy sought by the Petitioners runs counter to, or is ruled out by virtue of the language of the provisions of the Rules of Procedure or the law. The law was not at all intended to regulate the issue of the affiliation of the Knesset Members on the Committee to coalition or opposition parties, either in terms of the election or in terms of their continued tenure. The law does not at all address the possibility of a Committee member resigning of his own initiative, by virtue of a parliamentary agreement, or by a custom. If there is a custom pertaining to these aspects, the existing legislation cannot disqualify it.

            To complete the picture, we would note that it can be argued that the practice is binding in the first stage, when the Committee members are elected. However, once a member from the opposition parties has been elected, the practice does not obligate him to resign, even if his party joined the coalition. Admittedly, the letter of the law does not contradict this possibility, and could even be thought to be compatible with it. However, it must be admitted that it is the interpretation of the practice that poses the hard question. In other words, just as there is no dispute that the practice to initially appoint  at least one Member of Knesset from the ranks of the opposition in the first stage has held true for close to a quarter of a century, it is also true that Parties have also failed to adduce a single example where the transitioning of one Member of Knesset from the opposition to the coalition has led to his resignation from the Committee. It is not clear whether this situation ever presented itself. Indeed, this was another reason why I thought that this was not the right case for ruling whether a binding constitutional custom was possible in the Israeli system. The reason for this is that, even if we were to determine as much, we would face another hurdle in the form of the change in the party’s status during the tenure. One way or the other, this is not a case of a negative arrangement in the law or the Rules of Procedure. The law does not prohibit the resignation of a Knesset Member from the Committee. The true question is not, as noted, the interpretation of a law, but the interpretation of a practice.

            Let us now turn to the third test for the existence of a constitutional custom.

10.       The normative component. Case law has suggested predicating a constitutional custom on another test—the logical rationale underlying the custom (the Zohar case, para. 32, per President Beinisch). In my opinion, the importance of the third test is the insufficiency of exclusively empirical checks, which are the purview of the first two tests. As mentioned, these tests examine whether a practice has become ingrained and understood as having binding validity. The shortcoming in both these tests lies in the content of the practice. Does that carry no weight at all? This is what I believe gave rise to the logical-rationale test. The question to ask is: Is the practice good? However, I believe this test needs to be honed and given an added, normative dimension. That is, despite the language in which the test was worded, in truth it is not just an analytic-logical test. The goal of the test is to check the compatibility of the rationale underlying the constitutional custom with the principles of the constitutional regime. In fact, this is how it was applied in the Zohar case (ibid., paras. 23, 33). The Supreme Court, sitting in an expanded panel, addressed the definition of the President’s amnesty power, the nature of the Minister of Justice's countersignature within this framework, and the degree of judicial review in its regard. This is a weighty issue. In order to decide it, attention must be paid to normative aspects and values. This is what we will do. As President Beinisch said:

                        The third test for the forming of a “constitutional convention” examines the rationale underlying the constitutional convention, should the latter have formed. We addressed this rationale above, and stated that the countersignature expresses the parliamentary responsibility for the amnesty power, and the possibility of subjecting the decision to judicial review. This responsibility, as mentioned, derives from the fundamentals of the Israeli regime, which require a process of checks and balances for the exercise of governmental powers (ibid., para. 33).

 

This position, which requires a normative component in recognizing a constitutional custom rested, inter alia, on a ruling by the Supreme Court of Canada, which reads as follows:

                        The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative (Re: Resolution to Amend the Constitution [21], p. 888).

 

That is, it might have been possible to think of a different position, which does not consider the content of the custom but the facts alone—the first two tests. Despite this, a position was chosen that considers the compatibility of the custom with the system's constitutional principles.

Similar principles can be found in Jewish law. The normative status of custom is recognized (for more on the subject, see: Menachem Elon, Jewish Law: History, Sources, Principles, 726-777 (1992) (Hebrew)). The Sages accorded existing custom binding halakhic weight in cases involving interpretation of the law. Thus, for example, in some cases of contention, they ruled based on the common practice “go forth and see how the public are accustomed to act” (TB Berakhot 45a; Eruvin 14b). Similarly, in cases involving a lacuna in halakha (Jewish law), the Sages ruled based on the following custom: “Any law that is flimsy in court and whose essence you do not know, go forth and see what the public custom and practice are” (TJ Pe'ah, Chap. 7, Halakha 5). In some cases, the Sages believed that a custom’s status could even override law: “And custom cancels halakha” (TB Bava Metzia, Chapter 7, Halakha 1). With that said, the normative power of a custom is contingent on its not being an erroneous custom, and on its conformity with the values of Jewish law. In cases where the Sages thought that the custom deviated from the appropriate law, they abolished it, even when it was deeply entrenched. Thus, for example, Rashba [Rabbi Shlomo ibn Aderet, 1235 – 1310] writes: “If it was customary not to at all enforce damage by gazing [hezek re'iya] into houses and courtyards—this is an erroneous custom, not a custom" (Responsa Rashba, Part B, 268; see also the words of Rabbeinu Tam in the Tosafot commentary to TB Bava Batra 2a, s.v. “Parchment” [gvil]). Evidently, the ways of the world remain the same. The Jewish law system also attaches importance to the existence of custom, to the sense of obligation and to logical and normative content. The similarity in law testifies to the universality and importance of these matters. The law does not cover all possibilities. People behave a certain way, and by their behavior they create a custom.

Furthermore, modern case law has even expressed the position that there is a kind of parallelogram of forces between the normative component of a custom and its factual components. The Canadian ruling cited above rested on such a position:

                        We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it"(W. Ivor Jennings, The Law and the Constitution 136 (5th ed., 1959)).

 

Of course, if a custom is to be validated, it must be rational. This does not, however, contradict the observation that the deeper a practice is implanted in the system’s constitutional principles, the easier it becomes to recognize it as a binding constitutional custom. Needless to say, a court will not readily be party to enforcing a bad custom (cf. an “erroneous” custom in our review of Jewish law above). However, it is also the case that a neutral custom is not the same as a worthy custom. Take, for example, a practice pertaining to the technicalities of the vote for a committee. Section 62(d)(1) of the Knesset Rules of Procedure states that the election of the Knesset Members to the committee shall involve the selection of a “ballot committee” by the Speaker of the Knesset comprising two Knesset Members from the coalition parties and two from the opposition parties. Were it proven that there was an entrenched practice of appointing six Knesset Members to this committee instead of four—three each from the coalition and the opposition—there might not be cause to enforce it if a decision was then made to deviate from it. Ours is a different situation. There is no disputing the merit in our case of selecting a member of the opposition to the Committee. This value-related aspect bears upon the custom’s factual aspect. It reinforces its position. This view emanates from the combination in our case—the role of the Judicial Selection Committee vis-à-vis its composition within the bounds of the constitutional mechanism and of Israel’s governance and administration procedures. To understand the full significance of these two, it helps to elaborate on them and their importance in a democratic society.

 

D. Opposition, Majority Rule and Everything in Between—the Principle of Proportional Representation

11.       Beyond the questions of doctrine pertaining to the interpretation of the law, to the status of custom in general, and in the context of the Judicial Selection Committee in particular, the question before us transcends the concrete case and touches on a broad issue in the theory of state: the principle of proportional representation and the minority’s right to participate in decision-making processes. In view of the importance of the subject—and particularly in regard to the Judicial Selection Committee—I wish to elaborate on it level by level. The principle of “proportional representation” frequently reappears in the rulings of this Court relating to the representation of political parties on the various Knesset committees and local authorities (see HCJ 787/89 Likud Party v. Haifa City Council [13]; HCJ 3250/94 Oren v. Petah Tikva City Council [14]; CA 2663/99 Shamgar v. Ramat Hasharon Local Council [15]; HCJ 5743/99 Duek v. Mayor of Kiryat Bialik [16]; HCJ 1020/99 Duek v. Mayor of Kiryat Bialik [17]; AAA 7697/14 “Bar” Faction for Governance Control and Quality v. Kiryat Motzkin City Council [18]). This principle establishes the need to aspire to have parties—including minority parties—proportionally represented according to size on every committee appointed by the public authority (see, for example, Rule 102(a) of the Knesset Rules of Procedure (May 13, 2016); sec. 150A of the Municipalities Ordinance [New Version]; sec. 19(a1)(1)(c) of the Planning and Building Law, 5725-1965). Given the large number of parties in Israel’s parliamentary system, it is not always possible for all parties to have representation. In such cases, it was determined that opposition parties should be allowed to appoint a representative on their behalf (on the constitutional aspects of the issue, see: Yigal Marzel, The Constitutional Status of the Parliamentary Opposition, 38 Mishpatim 217 (2009) (Hebrew), which notes the recognition—formal as well—of the status of the chairman of the opposition). 

In AAA 1207/15 Ruchamkin v. Bnei Brak Municipal Council [19] (hereinafter: the Ruchamkin case), I dwelt on the minority’s right to representation on the various committees, and on the democratic importance of this right from the perspective of political philosophy and the system of Jewish law. This case centered on the appropriate way to select representation of the minority party on the Municipal Property Tax Discount Committee. It was determined that here, too, adequate representation for the minority party was required. While the legislative and normative framework in the Municipalities Ordinance differs from the one in our case, the rationales put forward in the Ruchamkin case also apply to the various Knesset committees, and all the more so—as shall be explained below—to the Judicial Selection Committee.

The Ruchamkin case emphasized that the full realization of the democratic idea is not just majority rule, and does not suffice with the majority’s recognition of the minority's rights—modern democracy sees value in the participation of the minority in leadership and in the decision-making processes:

                        The right of the minority to participate in the decision-making process – and not just its political right to elect the decision makers – was particularly emphasized by many political philosophers in the second half of the twentieth century. It might be said that this is the third stage in the development of the democratic idea. At the principle’s outset – in the Athenian Greek polis – it meant majority rule (the meaning of the word demos is “the people”, and the original meaning of democracy was “rule of the people”, as opposed to monarchic and oligarchic rule). In the second stage, democracy became the majority’s obligation to recognize the rights of the minority, which, in the third stage, developed into the recognition that even the minority must play an integral role in the decision-making process  (ibid., para. 9).

 

The minority's participation does not detract from the majority's status. The majority's governance is reflected in the fact that, by its very definition as the majority, it has a greater share than the minority. As a result, within the democratic decision-making procedure, which adds up the number of votes, the “fingers” of the majority will prevail. However, involving the minority in the decision-making process reflects an egalitarian, respectful treatment of everyone, and allows mutual discussion and persuasion. These ingredients enrich the discourse, and they are what lends legitimacy to majority decisions, even when they are deeply opposed to the minority position:

… minority participation in the process is a central element of the legitimacy of majority decision-making in the eyes of the minority, which must accept the majority decision even when it considers the decision itself to be wrong. The minority must not feel that it has a lesser status than the majority. According to this view, debate and voting are not merely decision-making rules, but also preserve equality, and are the basis of the legitimacy of the majority’s decision(ibid., para. 9).

 

12.       It should be noted that the broader perspective of comparative law also shows that many countries have arrangements that enshrine the minority’s right to participate in the various committees: England and Australia have, alongside specific arrangements relating to the composition of the committees, a general provision of law stating that their composition must mirror that of the parliament (in England, see: Standing Orders of the House of Commons, art. 86(2); in Australia, see: Standing Orders of the Senate Committees, art. 22A(2a). In Canada, the law prescribes an arrangement that makes it mandatory to appoint, alongside the committee chairperson, an official representative for the opposition and another representative of an opposition party (Standing Orders of the House of Commons, art. 106(2)). Now that we have looked at the legislative arrangements practiced in other legal systems, let us also briefly recall the Jewish law's approach to the matter.

13.       As I said in the Ruchamkin case, this is also the approach of Jewish law, wherein the majority decision is only binding when arrived at following debate and minority participation. Based on this principle, Rashba ruled that a rabbinical court’s majority ruling is only binding when it had been made after debating and deliberating matters in the presence of all the judges: “There is no majority consent unless the majority consent is arrived at in the presence of all as a matter of general law” (Responsa Rashba 3:304). This is how this was summarized there:

The Tosefta places the emphasis upon changing times and circumstances: “Rabbi Judah says, why are the opinions of a single person from among the many recorded? So that if the time requires them, they can be relied upon” (Tosefta, Eduyot 1:4). These explanations assume that a majority decision does not make the court’s decision the only one of significance. The rejected minority opinion is not viewed as an error or mistake, but rather as a theoretical halakhic possibility that – while not the position adopted in practice at the time – may become so at other times. This is another reason for granting the minority the opportunity to express its view (ibid., para. 10).

 

This holds true for all those cases where the decisions of the democratic majority are accepted, but they are of special value when it comes to the Judicial Selection Committee. The Judicial Selection Committee is unique in its status, as shall be explained. At the same time, it highlights the principle of proportional representation and even adds to it. This is what I shall now address.

 

E. The Judicial Selection Committee

14.       The judicial appointment procedure is unlike any other appointment procedure carried out by the executive or the legislative branches (on administrative decisions by the legislative branch, see: Yoram Danziger, Strengthening Knesset Decisions, 34 Hapraklit 212 (1982) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 122 (2010) (Hebrew)). This is not an act of vertical delegation that allows the authorities to act via their long arm, as is the case of other committees, but a quasi-“constitutive” decision that establishes a horizontal, independent power that is parallel to the powers that form it, as “tongs are made with tongs” (Mishnah, Avot 5:6). While it is clear how the legislature and the executive are elected – the legislature is established based on the democratic principle of proportional representation, and the executive is based directly and arithmetically on counting the votes of the majority parties – not so the judiciary, which is an independent branch not directly derived from the majority parliamentary vote. The principle of judicial autonomy and independence forms the core of the idea of the separation of powers as regards the judiciary, according to the western tradition of the separation of powers fathered by Montesquieu (a political philosopher, jurist and member of parliament in 17th century France). In order to ensure that justice is done while fully safeguarding civil rights, the judicial branch must be detached from the other branches. Indeed, the principle of judicial independence guarantees that judicial discretion is only exercised with the principles of justice and the rule of law in mind, with no influence from extraneous entities and considerations (for an elaboration, see the volume published by the American Academy of Science: 137(4) Daedalus, on Judicial Independence (2008); in addition, see: Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds. (2010); Aharon Barak, Judicial Discretion 265 (1987) (Hebrew)). One must bear in mind that under the constitutional model adopted by the large majority of western countries and in the Israeli legal system, the judiciary might even strike down decisions by the legislature.

 

Hence, the judicial branch is not—and must not be—the long arm of the legislative or executive branches. The judiciary must be autonomous and independent of the other branches. With that said, the judiciary is one of the three branches of government, and must manifest a commitment to the citizenry and democratic values. It does not operate in a void, but in various aspects, in clear collaboration with the other branches. As in the famous words of President A. Barak:

The judge’s autonomy and independence allow him to brave the daily waves. He must give expression to society’s long-term, fundamental trends, rather than to short-term, fleeting needs… It is in fact the judge, who has neither sword nor purse but only his autonomy and independence, training and experience, who is capable and worthy of reflecting the people’s fundamental perceptions. It is precisely his being divorced from the need to be elected from time to time that detaches the judge from the need to give expression to current sentiments, and it is that which gives him the ability and the power to give expression to deep values, which might at times be unpopular (Aharon Barak, The Role of the Supreme Court in a Democratic Society, 21 Iyyunei Mishpat 15-16 (1998) (Hebrew). See also: CA 6821/93 Mizrahi Bank v. Migdal [20], 427).

 

There is a partition between the judicial branch and the other branches. The same goes for the other branches. Note that this is a partition, not a wall. The life of democratic society and the democratic state as it has developed requires some interaction. Hence, too, the need for checks and balances. The correct measure of these systems is vital, but we will not dwell on this. In our case, we shall focus on the judiciary, the public and the democratic principle. We shall ask how the gap can be bridged between the judiciary's autonomy and independence, and its being one of the three branches of government, owing loyalty to the public. How does one resolve the tension between the two principles?   

15.       The gap between these two requirements is bridged, inter alia, by two basic requirements of the judiciary, beside the demand for autonomy and independence: accountability and reflection (see: Shimon Shetreet, Fundamental Values of the Justice System in Israel, Justice Orr Volume – A Collection of Articles in Honor of Justice Theodor Orr 525 (2013) (Hebrew); Shimon Shetreet, Institutional and Substantive Aspects of the Justice System in Historical Perspectives, 10 Mishpat Ve'Asakim 525, 572-583 (2009) (Hebrew)). In order to fulfil these requirements, there formed, inter alia, a mechanism that is unique to the judicial system, namely the court of appeals. Open hearing constitutes an important tool for the court, as well. However, we will not discuss internal review here, but external aspects. I will briefly specify these requirements, and then show that they, too, lend special weight to the importance of having the minority represented on the Judicial Selection Committee.

A.        Accountability: Even though the judiciary is not directly elected by the public, it is one of the state’s branches of government, it is accountable to the public, and thus to the legislature and the executive, as well. This was aptly expressed by Prof. Yoav Dotan:

A governmental system where the composition of the reviewing body directly reflects the political balance of power in parliament is a system susceptible to a series of failures from a constitutional perspective. For we have already said that at the very heart of the concept of constitutionality stands the view that one is justified in imposing certain limitations on the power of the representative legislator… On the other hand, the fact that the judicial review institution can be (and should be) less representative than the legislature does not mean that these institutions should be free of any duty of democratic accountability (Yoav Dotan, Judicial Review of Legislation – The Accountability Question, 10 Mishpat uMimshal, 495-496 (2007) (Hebrew)).

 

Whereas the principle of judicial independence allows the courts to be loyal to judicial integrity and the values of the law, of morals and of justice, accountability is what ties the judicial branch to the public and its values. This was aptly described by Stephen Burbank, a professor of law at the University of Pennsylvania:

Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements; neither is an end in itself but rather a means to an end (or variety of ends); the relevant ends relate not primarily to individual judicial performance but rather to the performance of courts and court systems; and there is no one ideal mix of independence and accountability, but rather the right mix depends upon the goals of those responsible for institutional architecture with respect to a particular court or court system” (Stephen B. Burbank, Judicial Independence, Judicial Accountability and Interbranch Eelations,137(4) Daedalus, on Judicial Independence 17 (2008)).

 

The judiciary is not an island. Judging—and more precisely, the judge, any judge—must rule to the best of his understanding and conscience, in line with the law and its requirements. The integration of the principle of autonomy and independence with the duty of accountability creates a proper balance between its being one of the branches of the democratic state, and its responsibility for the fundamental principles of the legal system and the binding norms. As a derivation from this duty, scholars and legal experts have emphasized the duty of reflection that applies to the judiciary.

B.        Reflection: As mentioned above, the judiciary must be autonomous and independent. In keeping with this, it is accepted that the principle of representation does not apply—certainly not fully and formally—to the judiciary. The latter must remain neutral and professional, steer clear of political labelling, and remain loyal to the values of law, justice and equity. And yet, even though the principle of representation does not apply to it, it must reflect the public within which it operates. This is the principle of reflection, which was adopted in many western countries and was even expressed in a number of international treaties (Sonia Lawrence, Reflections: On Judicial Diversity and Judicial Independence, in Judicial Independence in Context (Adam Dodek and Lorne Sossin, eds, 2010); Shimon Shetreet, The Administration of Justice: Practical Problems, Value Conflicts, and Changing Concepts, 13 U.B.C.L Rev. 52 (1973); Shimon Shetreet, On Assessing the Role of Court in Society, 10 Manitoba L.J. 399 (1980); The Montreal Universal Declaration on the Independence of Justice, 10 June 1983, Act 2.15; Mt. Scopus Approved Revised International Standards Independence § 7 (2008)). This also appears in the conclusions of the committee on the procedures for the election of judges headed by Justice Y. Zamir (March 12, 2011): “When the professional level and personal qualities exist in due measure, weight should also be attributed to the principle of social reflection” (chap. 16, para. 1).

            However, the relationship between the court and the principle of representation and reflection is more complex and not unidimensional. This relationship is not built upon formal, binding, rigid, arithmetic and mathematical rules, but on social sensitivity in the right dose, alongside professional considerations. This might also be reflected in the way that judges are selected.

            The importance of reflection also stems from considerations of visibility and public trust (Shimon Shetreet, The Doctrinal Reasoning for More Women Judges – The Principle of Reflective Judiciary, in Women in Law 183 (1998)), but more than that, from substantive considerations of justice. Prof. Alon Harel explains that the legitimacy of the court, despite not being subject to the principle of representation, derives from the principle of compatibility, whereby: “… rules and principles need to be sensitive to the public's moral beliefs” (Alon Harel, The Democratic Justification for Judicial Review, 5 Moznei Mishpat 90 (2006) (Hebrew)). Further on, it is explained that reflecting the public's values is a delicate balancing act between contradictory values. It is not the same as an accurate vote count:

                        The normative judgments of citizens involve different, complex values anchored in different practices, ways of life and world views. Sensitivity to such judgments in a democracy involves complex processes, and it is by no means self-evident that the compatibility requirement dictates the adoption of every majority-backed decision. Alternatively, it could be argued that the compatibility aspect of democracy can manifest itself in different ways, and there is no reason to claim a priori that “vote counting'” better serves the compatibility aspect than alternative mechanisms (ibid., p.. 91).

 

The legitimacy of the judiciary stems from and depends on this branch of government fulfilling a different role to that of the other branches. Strip society of the judiciary, and it is doubtful that it would long endure. It is no coincidence that, as Jewish law sees it, the children of Noah—the nations of the world—are subject to a mere seven commandments, of which only one is a positive commandment, namely the adjudication commandment—the duty to maintain a legal system (TB Sanhedrin, 56a). One might ask: Are various systems such as health and education not also vital for society? But Jewish law is resolute. It would seem that the origin and foundation of the public systems together with the individual's relations depend upon the legal system. Of course, the role of the legal system is not only to prevent social chaos, but also to improve society and contribute to making it more just. Against this background, the principle of judicial independence is vital for all of society. Thus, contrary to the decisions of the executive, which acquire their validity by virtue of the majority vote of the executive and even the legislature, judicial decisions also acquire their validity by virtue of reflecting the entirety of the public's values.

16.       The distinctive characteristics of the judiciary—autonomy and independence, the duty of accountability and the principle of reflection—give the representation of the minority on the Judicial Selection Committee a unique added value of great importance. And note, this procedure is not about norms that are binding upon the judiciary itself, but about the arrangements relating to the Judicial Selection Committee. However, as I shall now explain, these arrangements are influenced by the character of the judiciary and the guiding principles applicable to it. It is my opinion, as said, that in addition to the principle of adequate representation that applies to the Judicial Selection Committee as to all other committees, it applies most particularly to this committee. I shall explain.

A.        Autonomy and independence. The judiciary must be a neutral, autonomous entity that is independent of political players. For that to happen, the Judicial Selection Committee must also, to the extent possible, be a neutral committee, which does not patently represent a political faction or party. In this sense, the broader the representation—and if it also includes opposition members—the greater the independence. Where judges are appointed by a committee that is political in nature, this might “taint” the identity of the judges and violate the principle of autonomy and independence. It follows that in order to fulfil this important principle fully, there is value to the Judicial Selection Committee having representatives from both the coalition and the opposition.

B.        Accountability. As explained above, the fact that the judiciary must be independent does not make it unaccountable. It is its accountability that ties the judiciary to the other branches of government and the public. It should be noted that the tension between these two principles lies at the heart of the disagreement on the proper procedure for appointing judges in all western countries (Charles G. Geyh, Methods of Judicial Selection and their Impact on Judicial Independence, 137(4) Daedalus, On Judicial Independence 86 (2008)).

            The way in which the Israeli legislature chose to strike a balance between the principles is by means of the Judicial Selection Committee. In this respect, the Committee has to reflect the fact that the judiciary is not a long arm of the executive, but a twin sister on an equal footing with the executive and the legislature. This being the case, it is right to include the opposition's representative on the Committee, as well. This makes for full representation of the legislative branch. Note that the law itself provides representation for all three branches, and two members of Knesset as far as representing the legislature. It was not for nothing that the legislature decided upon representation by two Knesset Members, allowing the creation of a proper balance—as was indeed with the practice over time—between the coalition and the opposition. One must keep in mind that the appointment of judges is not an act of the executive, but a constituent act of all three branches of government together.

C.        Reflection. The two aspects presented above concern the framework characterizing the judiciary, and not the Committee's effects on the nature of judging. As presented above, the reflection principle expresses a deep, substantive concept of the judge's craft. “A judge sits among his people”. Thus, even though the judiciary is not held to the principle of representation, it is fitting that the choice of those selecting judges should reflect balances within society and the administration. Excluding the opposition from the Judicial Selection Committee could be detrimental to the value of reflection, and thus prevent the enhancement of public faith in the power of the strength of the judiciary.

            This is another expression of the principle of proportional representation. As mentioned in the beginning, substantive democracy is not just a way of deciding by majority, but of including the minority in the decision-making process. Such is the case in all areas and, so too, in the Judicial Selection Committee. In addition, as explained in detail, the special character of the Judicial Selection Committee lends particular importance to the minority's representation on the Committee.

            A substantive clarification is in order. The court is not a political institution, nor is the Judicial Selection Committee. The law says: “A committee member shall vote in accordance with his own discretion, and will not be obligated by the decisions of the entity on whose behalf he is a member on the committee” (sec. 6 of the Courts Law). The members of the Judicial Selection Committee must exercise their own discretion. Some might claim that a different approach can be extracted from the principles of accountability and reflection. This is not so. Accountability and reflection concern the public at large, with its values and principles. These are incorporated in the law. It is in this sense that minority representation is needed. It seems that the minority should be a part of the picture, not outside it. Its presence on the Judicial Selection Committee is desirable. Its values are part of the value system reflected in the law. This is a sensitive distinction: accountability and reflection—yes; representation for specific entities—no. The legislature was aware of this distinction, giving it expression in the Courts Law, which establishes a “representative” division as regards the Committee's composition—three branches of government and professional representatives—alongside a rule of independent discretion. This also explains why the election to the Judicial Selection Committee is secret. Independent discretion is also granted in the process of electing the Committee's members. This delicate way is the right way to look at these matters.                                                                                                                                                                          

17.       I shall now turn to a brief examination of the sources of Jewish law on the issue of appointing judges. The commandment of appointing judges appears in the Torah verses : “Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment” (Deuteronomy 16:18). The verse does not impose the duty of appointing judges specifically upon the leadership, but uses general language. Bible commentator Don Isaac Abravanel (Spain and Portugal, 15th century) infers from this verse that judges were not appointed by the leadership, but by the people:

                        And the master prophet clarified by this that the judges who are to be in Israel, should not be appointed by the king, or on his behalf, but should be appointed by the people. That is to say, that each and every tribe should appoint the suitable judges in each of their towns. That is why he says: “which the Lord thy God giveth thee, throughout thy tribes”. This implies that the Lord your God assigns the appointment of judges to your tribes, who will appoint them in their gates. Not the king (Abravanel's Torah Commentary, Deuteronomy 16:18. See also: Michael Vigoda, Appointment of Judges, 83 Parashat HaShavua (2002) (hereinafter: Vigoda) (Hebrew)).

 

Abravanel's commentary reflects an awareness that the judicial system has to be autonomous and independent of the executive, and so the appointment of judges should also fall to the public.

            It seems that Abravanel is concerned with the establishment of the judicial system in his and our times, in the absence of a Sanhedrin. For one might say that there is no disputing that at the time of the Sanhedrin, the appointment of judges, called smikhah, was done by the Sanhedrin with the consent of the Nasi, as described in the Jerusalem Talmud: “They decreed instead that the court shall not appoint without the Nasi’s approval, and the Nasi shall not appoint without the court's approval” (TJ Sanhedrin 6b. See also Maimonides’ description in Mishneh Torah, Sanhedrin 4:1). However, even when the appointment was in the hands of the Sanhedrin, the sources show that, beside the importance of the judge's knowledge of the Torah, the sages gave weight to his public stature as a key factor in his ordination. We learn this from the Tosefta in tractate Sanhedrin:

They used to send out and examine every one who was wise, levelheaded, sin-fearing and of mature age, with whom people are content. Such a one they made a judge in his city"(tSanhedrin 7:1).

 

In other words, beside the principle of autonomy and independence reflected in Abravanel's words, the judge must be held in public esteem. Grounds for this requirement can already be found in the Torah. Faced with Jethro's criticism of the burden placed upon him, “why sittest thou thyself alone, and all the people stand by thee from morning unto even?” (Exodus 18:14), Moses seeks out worthy judges capable of sharing in the task of adjudication. To do this, he addresses the public: “Take you wise men, and understanding, and known among your tribes, and I will make them rulers over you” (Deut. 1:13). Rashi, in his comment on the verse, explains the need to appeal to the public in order to find the judges: “Men whom you recognize, for if one were to come before me wrapped in his tallith, I would not know who he is and of what tribe he is, and whether he is suitable. But you know him, for you have raised him. Therefore, it says, ‘known among your tribes’” (Rashi's Commentary on Deut. 1:13). A similar idea is presented by Nahmanides in his commentary on that verse: “And they were known to be judges from the start. For everyone would say: This one is fit to be a judge” (Nahmanides’ Commentary on Deut. 1:13).

            The tension between the aspiration to have the judge be a neutral party with no bias toward those who select him, and the requirement for him to be acceptable to the public and reflect its values, was resolved in different ways in the Jewish communities throughout history (see: Vigoda, ibid, and his references; Michael Vigoda, The Rabbinical Courts and the Appointment of Judges in Jewish Law, 12 Machanaim (1996) (Hebrew)). However, despite the differences between communities in the procedures for electing judges, the two principles—the judge's independence and the principle of reflection and accountability—are also present in the Jewish law sources. On the one hand, a judge must be independent and detached from the ruling authorities, and on the other hand, his appointment depends on his being accepted and esteemed by the public, which is also an active partner in his selection process.

            In our case, of particular interest is the passage in a book written by a justice of this Court—S. Assaf—describing the appointment of rabbinical judges in the Krakow community, as documented in the community journals (pinkasim):

                        On the first day of hol hamo’ed, the four “heads” and five “tovim” [community leaders, parnassim] and the fourteen members of the community council convened and took upon themselves “in true faith, with the consent of the Almighty and the consent of this congregation”, that they have neither undertaken nor shall undertake any conspiracy with anyone regarding the election, and that each of them shall express his opinion for the sake of heaven and in the public interest. Those assembled cast ballots into ballot box, with the name of one person only written on each ballot. The shamash [beadle] draws nine notes from the ballot, and those written on them are considered to be first electors. The nine electors step inside the synagogue, and the shamash has them take an oath before the open Holy Ark to elect five important, honest people as second electors. The shamash immediately gathers the five second electors in the synagogue and makes them swear that, in selecting all the community's officers, they will take into account only the public good. After the oath, they are put into a special room in the community building, where they sit “enclosed and secluded, no one leaves and no one comes to them… with the guards standing even at night to guard their doors”, and they select judges, community leaders, tovim, accountants and the rest of the community's officers for the coming year (from Simcha Assaf, Courts and their Procedures after the Sealing of the Talmud 44 (1924) (Hebrew)).

 

            Rabbinical judges are not appointed directly by the publicly elected officials, but by a special committee of “first electors” appointed by them. This practice reflects a balance between two values: On the one hand, it is the publicly elected officials who appoint the committee, thus maintaining the principle of “reflection”; but on the other hand, the appointment committee is elected in semi-random fashion by a “draw” of nine names out of 23 proposed by the community heads, which is also a way to fulfil the principle of autonomy and independence between the judges and the heads of the community. Thus, one might find some similarity in principle between the selection method used hundreds of years ago and the Judicial Selection Committee in place in Israel.

18.       In concluding this matter, the question of selecting judges is not strictly procedural. It embodies a fundamental question about the democratic and constitutional characteristics of the judiciary. The system that took shape in Israel over the years, with a view to balance the principles, determines that the appointment of judges is to be handled by the Judicial Selection Committee in its aforementioned composition, consisting of professional representatives alongside representatives from all three branches of government. Against this backdrop, the Knesset did well in establishing a practice, for a quarter of a century, whereby the legislature is to be represented by two Members of Knesset, as a requirement for equal representation by a member of the coalition alongside a member of the opposition. I have expressed my position that more weight should be accorded to a practice to the extent that it reflects a worthy constitutional position. This is not a sole consideration. To this one must add, as mentioned, the internalization of the practice, but this consideration adds weight of its own to the validity of the existing practice. The practice has normative components. The convergence of the principle of proportional representation for the minority and the Judicial Selection Committee strengthens the conformity of the practice with the State of Israel's constitutional system of the early 21st century. This is the actual practice, and it should thus be followed—if not more than that—in the future as well.

 

F. Conclusion

19.       Everything we have said can be summarized as follows: The petition's submission was seriously delayed. The Petitioners failed to act in the months following Yisrael Beitenu's crossover to the coalition, with no plausible explanation provided. During these months, the Committee worked intensively. In particular, proceedings were initiated to consider candidates for the Supreme Court. The implications of accepting the petition at the present time might directly affect these sensitive proceedings. Moreover, the Petitioners are asking us for a first-ever decision on the status of constitutional custom in Israel. They want us to determine that such a custom exists in our case, while extending the custom by interpretation to cases in which it was never applied. Consequently, we cannot grant the petition in its current form. With that said, it is important for the Court to state its position on the practice of appointing at least one Knesset Member from the opposition parties to the Committee. In my view, without deciding the issue of constitutional custom, its continued existence is very important, and this by virtue of constitutional principles of the system, which recognize the principle of proportional representation. The current parliamentary thinking is that the opposition should not be left to sit idle in a corner pending the next elections. It has a role to play. Its contribution is important for the Knesset's work. This is what emerges from the law and the case law presented above.

            We have seen the strength of the principle of proportional representation in Israel's governance and administration procedures. We have shown the importance of the Judicial Selection Committee. The legislature itself saw fit to bring together an unusual forum comprising senior members of the judiciary and the executive, as well as representatives of the legislature elected by secret ballot, along with professionals. One would be hard-pressed to point to a forum so unique in its composition in other contexts. However, when it comes to the Judicial Selection Committee, this is required. The combination between the two—the principle of proportional representation and its significance, and the Judicial Selection Committee—sheds light on the practice to elect a representative from the opposition parties to the Committee. The combination explains it historically. It emphasizes its importance as a value against the background of the constitutional principles of the system. All of these serve as an important foundation in examining the existence of a constitutional custom as well.

            Let me stress once more that I am not deciding all of the Petitioners' claims. The questions are not easy. The answers to them raise some complexity. But the wise have eyes to see. Let us say that from a forward looking perspective and in terms of desirable governance—and possibly even beyond—it is right to maintain the practice whereby the opposition parties are represented on the Judicial Selection Committee. Let us spell this out: We are not intervening in the present case. However, should the Knesset decide, come the next election to the Judicial Selection Committee, not to appoint a representative from the opposition parties on its behalf in the election of the Committee—it will face a serious legal hurdle. Moreover, one might think that the Knesset would do well to consider formulating the vague rule into a clear rule. One way or another, should it be decided to depart from this practice, the parties' arguments are reserved for them.

            Let us end by going back to our opening words, where it was clarified that this petition and its content are delicate and sensitive: The relationship between the Court and the Knesset in carrying out its role of appointing representatives to the Judicial Selection Committee. But it seems that, rather than tension, what was created is a kind of normative harmony. The Knesset did well to adopt the practice for 25 years. This is proper. In this, it served as an example for developing society as a Jewish and democratic society.

20.       I would recommend that we dismiss the petition without an order for costs. The very act of submitting the petition made a contribution, even if the petition has been dismissed.

 

 

Justice I. Amit:

I concur in dismissing the petition.

1.         My colleague Justice N. Hendel has painted a broad, fascinating canvas of judicial autonomy, drawing widely on the hidden treasures of our sources and on comparative law. The independence of judges underlies the democratic system, and none dispute the importance of this principle. One of the conditions required in order to guarantee the autonomy and independence of judges in Israel is that the four representatives of the legislative and executive branches not be homogeneous. The great danger inherent in this kind of situation has not escaped the Knesset, and there is a reason why a kind of constitutional convention formed over the years that the votes in the Knesset to elect the representatives to the Committee would be held in such a way that at least one of the two representatives would belong to the opposition (I would note that in one past case, a situation came about where two representatives of the opposition were elected). This is the customary practice and also the proper normative state of affairs, as the Knesset's attorney confirmed to us. The Knesset is therefore to be commended for having followed and for following this practice for years.

2.         The case before us is “accidental”, an exceptional instance born of political vicissitudes, where a party whose members sat on the opposition benches (and I am not addressing the question of whether every party that is not in the coalition is “automatically” considered an opposition party for the purposes of representation on the Committee) crossed the lines to the coalition benches. Cases like these come under section 6(1) of the Courts Law [Consolidated Version], 5744-1984, which states as follows:

6. These provisions shall apply in the matter of the Judicial Selection Committee, where, in accordance with section 4 of Basic Law: The Judiciary (hereinafter: the Committee):

 

(1)The Knesset shall elect by secret ballot the two Members of Knesset who shall serve as members of the Committee; they shall serve as long as they are Members of Knesset, and if the Knesset's term has ended—until the new Knesset elects other members in their stead, and all subject to the provisions of the Knesset Law.

 

It appears that the legislature did not envisage the exceptional case before us, but the provisions of the law are clear, and the practice and custom yield to an explicit law of the Knesset. For me, this is reason enough to reject the petition, and to do so without laying down hard-and-fast rules regarding constitutional custom as a binding legal source.

3.         The petition has raised an important issue that deserves consideration. The legislature would do well to enshrine the customary practice we pointed to above in the Courts Law. This was done in Amendment no. 74 of 2014, which added sec. 6 (3a) to the Law in order to ensure female representation on the Committee:

3a. At least one of the representatives of the Supreme Court justices on the Committee, at least one of the government representatives on the Committee, at least one of the Knesset representatives on the Committee and at least one of the representatives of the Israel Bar Association on the Committee shall be women;

 

            Let me note that in other contexts, the legislature has taken into account the need to guarantee the opposition proper representation. Thus, sec. 13D(a) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951, establishes types of cases where a Knesset Member would be subject “to judgment by the Ethics Committee”, and sec. 13D(b)(1) of said law states as follows:

The Ethics Committee shall consist of the four Knesset Members who will be appointed by the Speaker of the Knesset, for the term of that Knesset, taking into account, inter alia, the parties making up the Knesset, two of them members of the coalition parties and two of them members of the opposition parties; the Speaker of the Knesset shall designate the chairperson of the Ethics Committee from among its members;

 

            The legislature thus saw to it that the Ethics Committee would not be solely made up of Knesset Members belonging to the coalition, in order to ensure the autonomy and independence of this committee. If such is the case for an internal, quasi-judicial Knesset committee, then all the more so when it comes to the Judicial Selection Committee, whose composition is meant to guarantee the principle of autonomy and independence on which the entire judicial system hinges. And indeed, the importance of this issue did not escape the eyes of Knesset Members in the past who tabled private-member bills in each of the last four Knesset terms in order to set this practice in law. But we need not go that far. The incumbent Minister of Justice, Ayelet Shaked, was aware of the importance of this principle while still a Knesset Member, and I shall refer to the private-member bill she submitted at the time, together with MK Yariv Levin (P/1994/19). The private-member bill, as it relates to the Knesset's representatives, proposes that “one shall be a representative of the coalition parties and one a representative of the opposition parties”, and the explanations for the proposed amendment read as follows:

It is proposed to bindingly establish in law the practice whereby the Knesset's representatives to the Judicial Selection Committee are elected one from the ranks of the coalition and one from the ranks of the opposition, in order to ensure that the choice of Knesset representatives, too, reflects the variety of views prevalent among the public as expressed in the elected composition of the Knesset (emphasis added—I.A.).

 

            At the very least, the Knesset would do well to anchor the existing practice in the Knesset's Rules of Procedure, where representation is given to  members of the opposition parties in various frameworks of parliamentary activity.

 

Justice U. Vogelman:

Like my colleague Justice Hendel, I too believe that the petition should be dismissed in limine owing to the delay in its submission. As a result, I did not see fit to take up the hefty question regarding the place of constitutional custom as a binding legal source in our legal system, nor determine the necessary preconditions for its formation. I say this even as I share my colleagues' view that the Knesset's customary practice of electing a representative from a coalition party and a representative from an opposition party for membership on the Judicial Selection Committee is worthy and serves important governance purposes. Therefore, it is also my view, and without deciding the question of whether a constitutional custom applies in general or in the circumstances of this case in particular, that the Knesset would do well to regulate the issue explicitly.

Needless to say, in the absence of such regulation, should the Knesset fail to elect a representative on behalf of the opposition parties during the next elections for the Judicial Selection Committee, the arguments of all parties are reserved for them.

 

The petition is dismissed without an order for costs, as stated in the opinion of Justice N. Hendel.

 

Given this day 5 Shvat, 5777 (Fe. 1, 2017).

 

 

 

HCJ 7040/15 HCJ 7076/15 HCJ 7077/15 HCJ 7079/15 HCJ 7081/15 HCJ 7082/15 HCJ 7084/15 HCJ 7085/15 HCJ 7087/15 HCJ 7092/15 HCJ 7180/15
Petitioner in HCJ 7040/15              Fadl Mustafa Fadl Hamed       Petitioners in HCJ 7076/15            1.   Haj Hamed Abdallah                                                         2.  Hosni Meshaki                                                         3.  Ahmed Zoan                                                         4.  Rushida Bashir                                                         5.  Maryam Ganem                                                         6.  Jamal Ziat                                                         7.  Cooperative Housing Co. of Government Workers                                                         8.  HaMoked Center for the Defence of the Individual               Petitioners in HCJ 7077/15:           1.   Zinab Munir Ashak Inaem                                                         2.  Ali Munir Ashak Inaem                                                         3.  HaMoked Center for the Defence of the Individual             .             Petitioners in HCJ 7079/15:            1.  Lutfi Rizek                                                          2.  Rina Rizek                                                          3.  Dana Lutfi Rizek                                                          4.  Zaid Lutfi Rizek                                                          5.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7081/15:           1.  Hadija Ahmed Hassan Amar                                                         2.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7082/15:            1.  Afef Ahmed Rizek                                                          2.  Ashraf Fathi Rizek                                                          3.  Talal Lutfi Rizek                                                          4.  Nasser Omar Rizek                                                          5.  Ahmed Omar Rizek                                                          6.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7084/15:             1.  Hamed Seriah Abd Elmajid Mustafa                                                           2.  Noeman Salah Jumah Hamed                                                           3.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7085/15:             1.  Muhamad Haj Hamed                                                           2.  Hiam Haj Hamed                                                           3.  Yusrah Haj Hamed                                                           4.  Abdelrahman Hamed                                                          5.  HaMoked Center for the Defence of the Individual                         Petitioners in HCJ 7087/15:            1.  Welaa Kussa                                                          2.  HaMoked Center for the Defence of the Individual             Petitioners in HCJ 7092/15:             1.  Welaa Alam Kussa                                                           2.  Mahmoud Zahir Kussa                                                           3.  HaMoked Center for the Defence of the Individual                         Petitioner in HCJ 7180/15:               Lina Abdelghani             v.   Respondents in HCJ 7040/15, HCJ 7076/15 and HCJ 7084/15:      1.  Military Commander in the West Bank                                                           2.  Legal Advisor for the Judea and Samaria Region                           Respondents in HCJ 7077/15:         1.  Military Commander in the West Bank                                                          2.  Legal Advisor for the Judea and Samaria Region                                                          3.  Fadl Elbasha                        Respondent in HCJ 7079/15, HCJ 7081/15, HCJ 7085/15, HCJ 7087/15, HCJ 7092/15 and HCJ 7180/15:                           IDF Commander in the West Bank      Requesting to join as Respondents in HCJ 7081/15:         1.  Almagor – Organization of Victims of Terror in Israel                                                         2.  Devorah Gonen                                                         3.  Eliezer Rosenfeld             For the Petitioner in HCJ 7040/15: Mufid Haj, Adv. For the Petitioners in HCJ 7076/15: Gabi Lasky, Adv. For the Petitioners in HCJ 7077/15: Michal Pomerantz, Adv. For the Petitioners in HCJ 7079/15, HCJ 7085/15, 7180/15:  Labib Habib, Adv. For the Petitioners in HCJ/7081/15, 7082/15:  Andre Rosenthal, Adv. For the Petitioners in HCJ 7092/15: Lea Tsemel, Adv. For the Respondents in HCJ 7040/15, HCJ 7077/15, HCJ 7081/15, HCJ 7084/15/ HCJ 7180/15: Avinoam Segal-Elad, Adv. For the Respondents in HCJ 7082/15, HCJ 7087/15, HCJ 7092/15: Yuval Roitman, Adv., Yonathan Zion Mozes For the Request to Join as Respondents: Pro Se   The Supreme Court sitting as High Court of Justice Before: President M. Naor, Justice H. Melcer, Justice N. Sohlberg   Objection to a Decree Nisi   [1]       HCJ 4597/14 Awawdeh v. Military Commander [2]       HCJ 5290/14 Qawasmeh v. Military Commander in the West Bank [3]       HCJ 8091/14 HaMoked Center for the Defence of the Individual v. Minister of Defense [4]       HCJFH 360/15 HaMoked Center for the Defence of the Individual v. Minister of Defense [5]       HCJ 5696/09 Mughrabi v. GOC Home Front Command (Feb. 15, 2012). [6]       HCJ 5667/91 Jabarin v. IDF Commander in Judea and Samaria, IsrSC 46(1) 858 (1992). [7]       HCJFH 2161/96 Sharif v. GOC Home Front Command, IsrSC 50(4) 485 (1996). [8]       HCJ 8084/02 Abbasi v. GOC Home Front Command, IsrSC 57(2) 55 (2003). [9]       HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command, (Jan. 5, 2009). [10]     HCJ 6288/03 Sa’adah v. GOC Home Front Command, IsrSC 58(2) 289 (2003). [11]     HCJ 8066/14 Abu Jamal v. GOC Home Front Command, (Dec. 31, 2014). [12]     HCJ 10467/03 Sharbati v. GOC Home Front Command, IsrSC 58(1) 810 (2003). [13]     HCJ 7473/02 Bahar v. IDF Commander in the West Bank, IsrSC 56(6) 488 (2002). [14]     HCJ 3363/03 Baker v. IDF Commander in the West Bank (Nov. 3, 2003). [15]     HCJ 8262/03 Abu Selim v. IDF Commander in the West Bank, IsrSC 57(6) 569 (2003). [16]     HCJ 2/97 Abu Halaweh v. GOC Home Front Command (Aug. 11, 1997). [17]     HCJ 8575/03 Azzadin v. IDF Commander in the West Bank, IsrSC 58(1) 210 (2003). [18]     HCJ 5839/15 Cedar v. IDF Commander in the West Bank (Oct. 15, 2015). [19]     HCJ 6396/96 Zakin v. Mayor of Beer Sheba, IsrSC 53(3) 289 (1999). [20]     HCJ 124/09 Dawiat v. Minister of Defence (March 18, 2009). [21]     HCJ 358/88 Association for Civil Rights in Israel v. GOC Central Command, IsrSC 43(2) 529 (1989). [22]     HCJ 7219/15 Abu Jamal v. GOC Home Front Command (Nov. 3, 2015). [23]     HCJ 361/82 Hamari v. GOC Judea and Samaria, IsrSC 36(3) 439 (1982). [24]     HCJ 802/89 Nisman v. IDF Commander in the Gaza Strip, IsrSC 43(4) 461 (1989). [25]     HCJ 897/86 Jabber v. GOC Central Command, IsrSC 41(2) 522 (1987). [26]     HCJ7823/14 Javis v. GOC Home Front Command (Dec. 31, 2014). [27]     HCJ 2418/97 Abu Farah v. IDF Commander in Judea and Samaria, IsrSC 51(1) 226 (1997). [28]     HCJ 6026/94 Nazal v. IDF Commander in Judea and Samaria, IsrSC 48(5) 338 (1994). [29]     HCJ 893/04 Faraj v. IDF Commander in the West Bank, IsrSC 58(4) 1 (2004). [30]     HCJ 454/86 Tamimi v. Military Commander in the West Bank (Oct. 6,1986). [31]     HCJ 1245/91 Fukhah v. Military Commander in the West Bank (Dec. 31,1991). [32]     HCJ 299/90 Nimmer v. IDF Commander in the West Bank, IsrSC 45(3) 625 (1991). [33]     HCJ 350/86 Elzak v. Military Commander in the West Bank (Dec. 31,1986). [34]     HCJ 542/89 Aljamal v. IDF Commander in Judea and Samaria (July 31,1989). [35]     HCJ 1056/89 Alsheikh v. Minister of Defence (March 27, 1990). [36]     HCJ 869/90 Lafrukh v. IDF Commander of the Judea and Samaria Area – Beit El (May 3, 1990). [37]     HCJ 3567/90 Sabar v. Minister of Defence (Dec. 31,1990). [38]     HCJ 3740/90 Mansour v. IDF Commander in Judea and Samaria (Jan. 8, 1991). [39]     HCJ 6299/97 Yassin v. Military Commander in the Judea and Samaria Region (Dec. 4, 1997). [40]     HCJFH 11043/03 Sharbati v. GOC Home Front Command (Jan. 18, 2004). [41]     HCJ 4747/15 Abu Jamal v. GOC Home Front Command (July 7, 2015). [42]     HCJ 1730/96 Salem v. IDF Commander, IsrSC 50(1) 353 (1996). [43]     HCJ 228/89 Aljamal v. Minister of Defence, IsrSC 43(2) 66 (1989). [44]     HCJ 6745/15 Abu Hashia v. Military Commander in the West Bank (Dec. 1, 2015). [45]     HCJ 2722/92 Alamrin v. IDF Commander in the Gaza Strip, IsrSC 46(3) 693, 699 (1992). [46]     HCJ 2006/97 Ghanimat v. GOC Central Command, IsrSC 51(2) 651 (1997). [47]     HCJ 6932/94 Abu Elrob v. Military Commander in the Judea and Samaria Region (Feb. 19, 1995). [48]     HCJ 8124/04 Al-Jaabri v. IDF Commander in the West Bank (Oct. 12, 2004). [49]     HCJ 4112/90 Association for Civil Rights in Israel v. GOC Southern Command, IsrSC 44(4) 626 (1990). [50]     HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, IsrSC 62(1) 507 (2006). [51]     HCJ 2056/04 Beit Sourik Village Council v. State of Israel, IsrSC 58(5) 807 (2004). [52]     CA 7703/10 Yeshua v. State of Israel – SELA (June 18, 2014). [53]     HCJ 24/91 Timro v. IDF Commander in the Gaza Strip, IsrSC 45(2) 325 (1991). [54]     HCJ 5139/91 Zakik v. IDF Commander in the West Bank, IsrSC 46(4) 260 (1992). [55]     HCJ 3301/91 Bardaiya v. IDF Commander in the West Bank (Dec. 31,1991). [56]     HCJ 2717/96 Wafa v. Minister of Defence, IsrSC 50(2) 848 (1996). ]57]      HCJ 7607/05 Abdullah (Hussein) v. IDF Commander in the West Bank (Feb. 14, 2005). [58]     HCJ 466/07 MK Zehava Gal-On, Meretz-Yahad v. Attorney General, IsrSC 65(2) 1 (2012). [57]     HCJ 434/79 Sahwill v. Commander of the Judea and Samaria Region, IsrSC 34(1) 464 (1979).

 

 

JUDGMENT

President M. Naor

We have before us a series of petitions filed against forfeiture and demolition orders issued for the homes of Palestinians from the Judea and Samaria area, who are accused or suspected of having committed murderous acts of terror in recent months.

Background

1.         Over the past two years, the security situation has deteriorated, both within the territory of Israel and in the Judea and Samaria area. This manifests itself in a constant rise in the incidence of terror attacks against Israeli citizens, including fatal attacks leading to the death and injury of dozens of people (see also: HCJ 4597/14 Awawdeh v. Military Commander in the West Bank, [1] para. 2 of my opinion (hereinafter: Awawdeh); HCJ 5290/14 Qawasmeh v. Military Commander in the West Bank [2], paras. 1-3 per Justice Y. Danziger (hereinafter: Qawasmeh). In recent weeks, there has been a further significant increase in the incidence of acts of terror. According to the data submitted by the Respondents in their responses, from the Eve of the Jewish New Year and until October 25, 2015, 778 attacks were recorded, in which eleven people were killed and another one hundred or so were wounded. Unfortunately, the wave of terror continues at present, and terror attacks, and attempts to carry out attacks, occur on a daily basis throughout Israel and in the Judea and Samaria area.

2.         As part of the general escalation, three serious shooting attacks occurred in recent months, in which Israeli citizens were murdered in cold blood. The details of these attacks, which are the focus of the petitions before us, are as follows: on June 19, 2015, Danny Gonen was murdered by shots from close range in a fatal attack close to the Ein Bubin Spring. Danny’s friend, Netanel Hadad, was wounded. According to the Respondents, the terrorist who carried out the attack is Muhammed Husseini Hassan Abu Shahin (hereinafter: Abu Shahin), who confessed to the attack in the course of his police interrogation. According to the Respondents, Abu Shahin’s confession is well supported by findings from the scene of the attack, and includes references to details that were not disclosed to the public. In addition, Abu Shahin confessed to the perpetration of a series of additional attacks, including thirteen attempted murders. On this basis, Abu Shahin was charged on August 17, 2015 on twenty-four counts, the first of which was causing the death of Danny Gonen and wounding Netanel Hadad.

3.         On June 29, 2015, another fatal shooting attack was carried out, in which Malakhi Rosenfeld was killed and three other people were wounded. According to the Respondents, the terrorists who carried out this attack were members of Hamas from the Judea and Samaria area, named Ma’ed Salah Jumah Hamed (hereinafter: Ma’ed) and Abdullah Munir Salah Ashak (hereinafter: Abdullah). From the interrogation of Abdullah – in the course of which he confessed to the acts and also incriminated Ma’ed – it emerged that he and Ma’ed belonged to a Hamas cell that planned to carry out a shooting attack against Israeli citizens. In this framework, on June 27, 2015, the two of them attempted to carry out a shooting attack against Israeli vehicles, which fortunately ended without harm to life or property. Two days later, Ma’ed and Abdullah met for the purpose of carrying out another shooting attack. The two of them drove towards the village of Maghar, and on the way they spotted an Israeli vehicle in which the victims were driving. When the Israeli vehicle stopped close to the attackers’ vehicle, Ma’ed opened the window of the vehicle and fired his Karl Gustav rifle in the direction of the passengers. Malakhi Rosenfeld was killed in the shooting, and three others were wounded. To support the responsibility of Ma’ed and Abdullah for these acts, the Respondents attached Abdullah’s police confession to their response, as well as the information filed against him.

4.         On October 1, 2015, terrorists carried out another vicious shooting attack in the area of the Beit Furik Junction. In this attack, Na’ama and Eitam Henkin were killed in front of their four young children, who were in the car with them and were left orphaned. According to the Respondents, three terrorists belonging to Hamas participated in the attack: Harem Lutfi Fathi Rizek (hereinafter: Rizek); Samir Zahir Ibrahim Kussa (hereinafter: Kussa); and Yehieh Muhamed Na’if Abdullah Haj Hamed (hereinafter: Hamed). In their response, the Respondents noted that the three of them had confessed to carrying out the attack, but they did not attach the actual confessions. After a discussion in an oral hearing before us, the confessions were submitted (parts of which were blacked out) to the Court, as well as to the Petitioners. In those confessions, which are consistent with each other, the three described, inter alia, their part in the murder and their motives for committing it.

The Forfeiture and Demolition Orders that are the Subjects of these Petitions

5.         Due to the severity of the three attacks described above, and the need to deter potential terrorists from perpetrating similar acts, the Military Commander in Judea and Samara (hereinafter: the Military Commander) decided to exercise his power under Regulation 119 of the Defence (Emergency) Regulations 1945 (hereinafter: Defence Regulations) by confiscating and demolishing the homes in which the terrorists lived. Six different buildings in the Judea and Samaria Area are involved.

The eleven petitions before us were filed against the decision of the Military Commander to demolish the said six buildings. Before we describe the petitions, we will sketch out a general picture of the buildings marked for demolition:

            (a)        The home of Ma’ed, suspected of the murder of Malakhi Rosenfeld (HCJ 7084/15): This is a single-story house built on a terrace, situated in Kfar Silwad, north of Ramallah.

            (b)       The home of Abdullah, accused of the murder of Malakhi Rosenfeld (HCJ 7040/15; HCJ 7077/15; HCJ 7180/15): This is apartment no. 23 situated on the top floor of a residential, eight-story building, in Kfar Silwad, north of Ramallah.

            (c)        The home of Hamed, a suspect in the murder of the Henkin couple (HCJ 7076/15; HCJ 7085/15): These are the two middle floors of a four-story building, in the Askan Rug’ib district of the city of Nablus.

            (d)       The home of Rizek, a suspect in the murder of the Henkin couple (HCJ 7079/15; HCJ 7082/15): This is an apartment on the second (middle) floor of a three-story building, in the Arak a-Ti’ah neighborhood of Nablus.

            (e)        The home of Kussa, a suspect in the murder of the Henkin couple (HCJ 7087/15; HCJ 7092/15): This is an apartment on the ground floor of a building with two stories that are built, and another one in advanced stages of construction, in the Dahi’ah neighborhood of Nablus.

            (f)        The home of Abu Shahin, a suspect in the murder of Danny Gonen (HCJ 7081/15): This is an apartment on the top floor of a three-story building, in the Qalandia refugee camp.

We will now describe the petitions concerning the six buildings. Note that our discussion of the petitions does not follow the order in which they were filed, but rather, the order in which we decided to address the various issues that arose.

Respondent’s decision with respect to the Petitioners in HCJ 7084/15 (regarding the demolition order for Ma’ed’s home)

6.         Ma’ed is a suspect in the murder of Malakhi Rosenfeld. According to the Respondents, he lived in a one-story building constructed on a terrace in Kfar Silwad, north of Ramallah. In this house – which is registered in the name of the father of the family, who is deceased – live the mother and brothers of the suspect, Ma’ed. On October 15, 2015, the Military Commander informed the suspect’s family that he intends to confiscate and demolish the entire building, and that if they wish to file an objection, they must do so in writing by Saturday, October 17, 2015. The family filed an objection, which was dismissed on October 19, 2015. On the very same day, the Military Commander signed the forfeiture and demolition order for Ma’ed’s home. Three days later, Ma’ed’s family petitioned this Court (HCJ 7084/15). The HaMoked Center for the Defence of the Individual, founded by Dr. Lotte Salzberger, filed a petition together with them (hereinafter: HaMoked Defence Center).

 

Respondent’s decision with respect to the Petitioners in HCJ 7040/15, HCJ 7077/15 and HCJ 7180/15 (regarding the demolition order for Abdullah’s home)

7.         Abdullah, accused of the murder of Malakhi Rosenfeld, lived in apartment no. 23, on the top floor of a residential building of eight stories, also located in Kfar Silwad. The apartment is leased by the mother of the accused, and his brothers and sister live there as well. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the said apartment, and that if they wished to file an objection, they must do so by Saturday, October 17, 2015. The Military Commander did not notify the owners of the building and its other residents of his intention to demolish Abdullah’s apartment. Nevertheless, together with the objection filed by the family of the accused, objections were also filed on the part of the other residents of the building and on the part of the owner, Mr. Fadl Mustafa Fadl Hamed (hereinafter: the owner of the building), who rented out the apartment marked for demolition to Abdullah’s mother. After the three objections were dismissed and the forfeiture and demolition order signed, each of the objectors filed a petition against the order (HCJ 7040/15 – petition of the owner of the building; HCJ 7077/15 – the petition of the family of the accused and HaMoked Defence Center; HCJ 7180/15 – the petition of the residents of the building and HaMoked Defence Center).

Respondent’s decision with respect to the Petitioners in HCJ 7076/15 and HCJ 7085/15 (regarding the demolition order for Hamed’s home)

8.         Hamed is a suspect, as stated, in the shooting attack in which the Henkin couple were killed. Hamed’s home is in the Askin Rug’ib district of Nablus, in a four-story building. According to the Respondents, Hamed lived on the two middle floors of the building. They say that Hamed lived with his parents on the first floor (above the ground floor), whereas the second floor, which is in the final stages of construction, is intended for Hamed’s future residence. In any case, it is claimed that of late, Hamed sometimes lived in that apartment as well. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the first floor and the second floor, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. It should be noted that it was mistakenly written in the Arabic version of the notice that the Military Commander intended to confiscate and demolish the ground floor of the building. The suspect’s family filed an objection, as did a resident of the ground floor of the building – the brother of the suspect – as well as the residents of the adjacent buildings. In the framework of the decisions on the objections, the Military Commander apologized for the mistake in the Arabic version of the notice, and explained that, as noted in the Hebrew version, the intention was to demolish the first and second floors of the building. Subsequently, the objections of the family members were dismissed. The objections of the neighbor and of the residents of the adjacent buildings were likewise dismissed. Following the dismissal of the objections and after the Military Commander signed the forfeiture and demolition order, the objectors, together with HaMoked Defence Center, filed petitions in this Court (HCJ 7076/15 – the petition of the resident of the ground floor and the residents of the buildings adjacent to the building marked for demolition; and HCJ 7085/15 – the petition of the family members, including the mother of the suspect, who also owns the building).

Respondent’s decision with respect to the Petitioners in HCJ 7079/15 and HCJ 7082/15 (regarding the demolition order for Rizek’s home)

9.         Rizek, too, is suspected of having participated in the attack in which the Henkin couple were murdered. The apartment in which Rizek lived is in the Arak a-Ti’ah neighborhood of Nablus. This is an apartment on the second (middle) floor of a three-story building, in which Rizek’s parents and brothers also live. On October 15, 2015, the Military Commander notified the family that he intended to confiscate and demolish the second floor of the building, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. The family, as well as other residents of the building, filed two objections – which were dismissed. Immediately subsequent to this, the Military Commander signed the forfeiture and demolition order. Thereafter, the objectors, together with HaMoked Defence Center, filed two petitions in this Court (HCJ 7079/15 – the petition of the family members, and HCJ 7082/15 – the petition of other residents in the building).

 

Respondent’s decision with respect to HCJ 7087/15 and HCJ 7092/15 (regarding the demolition order for Kussa’s home)

10.       Kussa was the third suspect in the attack in which the Henkin couple were murdered. The apartment in which Kussa lived is in the Dah’ia neighborhood of the city of Nablus. This is an apartment on the ground floor of a building of which two floors are built, and the third is in advanced stages of construction. On October 15, 2015 the Military Commander notified the suspect’s family that he intended to confiscate and demolish the ground floor of the building, and that if they wished to file an objection, they must do so in writing by Saturday, October 17, 2015. Members of the family filed an objection, as did other residents in the building. After the objections were dismissed and the Military Commander signed the forfeiture and demolition order, the objectors, together with HaMoked Defence Center, filed petitions in this Court (HCJ 7087/15 – the petition of the suspect’s wife, who lives with their three children in the apartment marked for demolition; and HCJ 7092/15 – the petition of other residents in the building).

Respondent’s decision with respect to the Petitioner in HCJ 7081/15 (regarding the demolition order for Abu Shahin’s home)

11.       Abu Shahin, who is accused of the murder of Danny Gonen, lived with his family in an apartment on the top floor of a three-story building, in the Qalandia refugee camp. On October 15, 2015, the Military Commander notified the members of the family who lived with the accused and their relatives, members of the Amar family, that he intends to confiscate and demolish the third floor of the building. The notice stated that if they wish to file and objection, they must do so in writing by Saturday, October 17, 2015. An objection filed by the accused’s grandmother, Mrs. Hadija Amar, who lives on the first floor of the building, was dismissed on October 19, 2015. On that same day, the Military Commander signed the forfeiture and demolition order for Abu Shahin’s home. Three days later, Mrs. Amar, together with HaMoked Defence Center, filed a petition against the order (HCJ 7081/15). In order to complete the picture, it should be noted that according to the Respondents, the apartment marked for demolition is owned by the uncle of the accused, Ibrahim Abdullah Amar. Nevertheless, Mrs. Amar claimed that she owns the whole building, including the accused’s apartment on the top floor.

 The Main Arguments of the Parties

Fundamental Arguments Common to all the Petitions

12.       In the petitions before us, several arguments arose that are common to them all. First, according to the Petitioners, demolition of the homes of Palestinian residents in the Judea and Samaria area – in which the laws of belligerent seizure apply – constitutes a violation of international humanitarian law and human rights law. They contend that the destruction of homes is contrary to the prohibition against destroying property except where absolutely necessary for military purposes (Art. 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (CA 1, 453 (opened for signature in 1949) (hereinafter: Fourth Geneva Convention); Article 46 of the Fourth Hague Convention concerning the Laws and Customs of War on Land, including the Regulations respecting the Laws and Customs of War on Land (1907) (hereinafter: Hague Regulations), constitutes prohibited collective punishment (Art. 33 of the Fourth Geneva Convention; Reg. 50 of the Hague Regulations), and is contrary to the duty to ensure the welfare of the child (Art. 38 of the Convention concerning the Rights of the Child, (opened for signature in 1989). Against this background, and based on the opinions of Israeli academic experts in public international law, it was argued that extensive demolition of homes is liable to amount to a war crime under international criminal law and the Rome Statute of the International Criminal Court (1998). The Petitioners are aware of the institutional difficulty in a reexamination of the constitutionality of the policy of demolition of homes that has been approved by the Court over a long period. However, according to them, in view of the serious implications of the policy of demolition of homes, its examination is justified in the framework of the petitions before us.

The Petitioners further argued that even though the justification for demolishing the homes of terrorists is, according to the case law of this Court, deterrent and not punitive, there is no proof that demolishing homes actually serves the purpose of deterring potential terrorists. In this context Petitioners recalled that in 2005, the Minister of Defence accepted the recommendations of the think tank headed by General Udi Shani (hereinafter: the Shani Committee), according to which the demolition of homes should be stopped, in view of doubt as to its effectiveness. The Petitioners argued that it is not acceptable that the Respondents refrain from presenting empirical data or other evidence in support of the claim that demolition of homes deters potential terrorists from carrying out attacks. This, notwithstanding the comments of Justices E. Rubinstein and E. Hayut in HCJ 8091/14 HaMoked Center for the Defence of the Individual v. Minister of Defense [3] (hereinafter: the HaMoked Defence Center case), according to whom the Respondents ought to conduct “follow-up and research on the matter,” and “insofar as possible, should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of harm to parties who are not suspected nor accused” (ibid., para. 27 per Justice E. Rubinstein). Another common argument is that of discrimination. According to the Petitioners, Reg. 119 of the Defence Regulations is implemented in a way that discriminates between Jews and Arabs. Whereas the homes of Arabs who perpetrated terror attacks have been demolished, the homes of Jews who carried out similar attacks are still standing. Finally, it was argued that the amount of time that was given to the Petitioners to file objections against the intention to demolish the buildings, and the amount of time given them to petition this Court against the orders that were issued was unreasonably short. Some of the Petitioners also pointed out that the forty-eight hours that they were given to file objections included days of rest. Moreover, some of the Petitioners argued that there were additional flaws in the hearing process, first and foremost the refusal of the Respondents to allow the Petitioners to examine material on which the decisions were based, such as the incriminating evidence against the suspects and the engineers’ reports in accordance with which the demolitions will be carried out.

13.       The Respondents argued in reply that all the fundamental arguments should be dismissed. In response to the Petitioners’ arguments that rely on international law, the Respondents argued that the Court has decided on a number of occasions, and recently in the HaMoked Defence Center case [3], that the demolition of terrorists’ homes is a legitimate action that is consistent with international and domestic law. The Respondents argued that the Petitioners showed no reason justifying a reexamination of these arguments. The Respondents also argued that in the present security reality, exercise of the authority under Reg. 119 of the Defence Regulations is essential in order to deter additional, potential attackers. According to them, the question of the effectiveness of the policy of demolition of homes has been addressed in a string of judgments (for example, in the HaMoked Defence Center case [3] in which a petition on a question of principle against use of the tool of demolishing the homes of terrorists was dismissed; a petition for a further hearing on that judgment was dismissed today (HCJFH 360/15 HaMoked Center for the Defence of the Individual v. Minister of Defense [4] (hereinafter: HCJFH HaMoked Defence Center). Indeed, as the Respondents agree, several years ago the Shani Committee recommended restricting the method of home demolitions to the point of non-use, but with the growing wave of terror, the need to use this authority in Jerusalem (as of 2008) and in the Judea and Samaria area (as of 2014) arose once more. The Respondents contend that renewal of use of the measure of demolitions is the result of circumstances of time and place, and as the face of terror changes, the Military Commander is required to act accordingly, changing the measures that he adopts. The Respondents further argued that the policy is implemented proportionately, and that in the framework of the balances that were considered, weight was attributed to the gravity of the deeds; the perpetrator’s residential connection to the home; the size of the home; the impact of implementing this measure on other people; engineering considerations, etc. It was also argued that in accordance with the case law of this Court, the claim of discrimination must be dismissed. Finally, it was argued that there is no substance to the Petitioners’ arguments regarding the hearing process.

 

Specific Arguments

14.       A number of specific arguments were also raised in the petitions, on which I will elaborate below, in relation to each order that was issued for the homes that are the subjects of the petitions before us. At the same time, we will already note at this stage that the main thrust of the specific arguments relates to the factual foundations on which the Respondents based their decision; to doubts in relation to the rational connection between the means of demolishing homes and the deterrent purpose in certain cases; to the delay in exercising the authority; to the possible harm to adjacent apartments and buildings; and to the question of whether the Respondents must provide compensation for this harm. The Respondents, on their part, argued that these claims, too, must be dismissed, as will be explained below.

 

The Proceedings in this Court

15.       In all these petitions, requests for interim orders were made and granted. In accordance with the interim orders, the Respondents were prohibited from confiscating and demolishing the six dwellings until the petitions were decided.

16.       On 27 October 2015, the Almagor Association, an organization for the victims of terror in Israel, together with the mother of Danny Gonen and the father of Malakhi Rosenfeld, asked to be joined as respondents to the petitions. We allowed them to submit their positions in writing, and to present oral arguments during the hearing on the petitions. They asked to express the voice of the grieving families, whose pain needs no elaboration, in support of the demolition of the homes of terrorists which, according to them, is liable to prevent additional victims of terror.

17.       A hearing was held before this Court on October 29, 2015. The petitions raise common questions, and some relate to the same buildings. We therefore decided to address them together. Nevertheless, each of the petitions has its own particular aspects, which must be considered separately.

18.       At the start of the oral hearing, we asked counsel for the Respondents whether the petitions could be treated as if a decree nisi had been issued. Initially, the Respondents answered in the negative, but after the hearing, they submitted notice that they agreed to this request. Furthermore, with the consent of counsel for the Petitioners, we examined confidential material ex parte, which addressed the deterrent power of the policy of the demolition of homes. At our instruction, a copy of the material was later sent to the Court, to be kept in the Court’s vault as part of the exhibits submitted in the present petitions. On November 9, 2015 a request was submitted on the part of the Petitioners to examine the possibility of revealing the confidential material, or at least some of it, to the Petitioners for their examination. The request was also raised in the oral hearing before us (see: transcript of the hearing of October 29, 2015, page 32). We did not find it possible to grant this request.

19.       Finally, after necessary clarifications on certain matters, on November 2, 2015 the Respondents submitted a supplementary notice (hereinafter: supplementary notice). In the framework of the supplementary notice, the Respondents argued that in each of the cases that are the subjects of the petitions, the various alternatives for executing the orders were examined (full demolition, demolition of internal walls and ceiling, or sealing the apartment). According to them, this examination revealed that all six structures should be destroyed “due to the full set of relevant circumstances, including engineering, operative and operational considerations, as well as considerations of deterrence.” The Respondents further explained that if the adjacent buildings were damaged as a result of negligent planning or execution of the demolition of the structures marked for demolition, the State would agree – beyond the letter of the law – to repair the building or to compensate its owners. This would be subject to the opinion of an appraiser and a string of additional conditions, namely: that the defect in the demolition of the building did not result from a disturbance of public order; that the owners of the structure did not receive compensation, restitution or participation of any kind for the damage from the Palestinian Authority or any other body; that the injured party is not a citizen of an enemy state or an activist or member of a terrorist organization or anyone acting on their behalf (in accordance with sec. 5B of the Civil Wrongs (Liability of the State) Law, 5712-1952 (hereinafter: Civil Wrongs Law)).

20.       At our request, the Respondents further presented details of the timetables of the execution of earlier demolition orders that had been approved by this Court since 2013. In this framework it emerged that some of the orders were executed immediately after the judgment approving the order was handed down, while some were executed only several months later. One order has not yet been executed, for operational reasons. Additionally, the Respondents attached the following documents to the supplementary notification: the suspects’ confession to the murder of the Henkin couple; the confession of another two people involved in the attack in which Malakhi Rosenfeld was murdered; and a summary of the mapping out of the home of the suspect Hamed.

21.       The Petitioners, on their part, submitted responses to the supplementary notice. In their responses, the Petitioners claimed, inter alia, that it emerges from the Respondents’ notice that alternatives to full demolition were considered only reluctantly. The Petitioners also claimed that the conditions specified by the Respondents for paying compensation to the residents of the adjacent buildings are not reasonable.

Discussion and Decision – Common Arguments

22.       The petitions before us turn on the implementation of Regulation 119 of the Defence Regulations, which authorizes the Military Commander to order the demolition of the houses of suspects or persons accused of hostile activity against the State of Israel.

Forfeiture and Demolition of Property etc.

119 (1)       A Military Commander may by order direct the forfeiture to the Government of Israel of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter of street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land. Where any house, structure or land has been forfeited by order of a Military Commander as above, the Minister of Defence may at any time by order remit the forfeiture in whole or in part and thereupon, to the extent of such remission, the ownership of the house, structure or land and all interests or easements in or over the house, structure or land, shall revest in the persons who would have been entitled to the same if the order of forfeiture had not been made and all charges on the house, structure or land shall revive for the benefit of the persons who would have been entitled thereto if the order or forfeiture had not been made. […]

 

23.       The ambit of Regulation 119 of the Defence Regulations, as formulated, is very broad. Nevertheless, the case law of this Court has made clear that the Military Commander must use this power in a cautious, limited manner, in accordance with the principles of reasonableness and proportionality (see, e.g., the Awawdeh case [1], paras. 16-17 of my opinion; HCJ 5696/09 Mughrabi v. GOC Home Front Command [5], para. 12 per Justice H. Melcer (hereinafter: Mughrabi); HCJ 5667/91 Jabarin v. IDF Commander in Judea and Samaria [6]). This case law  is reinforced with the enactment of Basic Law: Human Dignity and Liberty, in light of which the Regulation must be interpreted (see HCJFH 2161/96 Sharif v. Commander of the Home Front [7],  488 (hereinafter: Sharif); HCJ 8084/02 Abbasi v. GOC Home Front Command [8],  59). Therefore, according to the rules developed in the case law, the authority must ensure that the demolition is carried out for a proper purpose and that it meets the proportionality test. In other words, the means adopted must rationally lead to the realization of the goal; the means adopted must achieve the goal with the least possible violation of the protected human rights – the right to property and to human dignity; and finally, the means adopted must be appropriately related to the underlying goal (see: Sharif [7], at pp. 60-61; HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command [9], para. 5 of my opinion, and the references there (hereinafter: Abu Dheim)).

24.       As the case law has held, the purpose of the Regulation is deterrent, not punitive. This purpose has been recognized as proper (for criticism of this approach, see, e.g., David Kretzmer, High Court of Justice Review of the Demolition and Sealing of Houses in the Territories, (1993) Klinghoffer Memorial Volume on Public Law 305, 314, 319-27 (Heb.); Amichai Cohen and Tal Mimran, Cost without Benefit in the Housing Demolition Policy: Following HCJ 4597/14 Muhammad Hassan Halil Awawdeh v. Military Commander in the West Bank, HaMishpat Online 5, 11-21 (2014) (Heb.)). Demolition of houses is undoubtedly a drastic, harsh step – primarily due to the harm it causes to the family of the terrorist, who sometimes did not aid him nor know of his plans. Indeed, “[…] the injury to a family member – who has not sinned nor transgressed – when he loses his home and shelter, contrary to first principles, is burdensome. (HaMoked Defence Center case [3], para. 2, per Justice N. Sohlberg). However, given the deterrent force of the use of the Regulation, there is sometimes no choice but to use it (see, e.g., HCJ 6288/03 Sa’adah v. GOC Home Front Command [10],  294 ). Therefore, the case law of this Court has held that when the acts attributed to the suspect are particularly heinous, this may suffice to justify use of this exceptional sanction of demolishing his home, due to considerations of deterrence (see: HCJ 8066/14 Abu Jamal v. Commander of the Home Front [11] para. 9, per Justice E. Rubinstein (hereinafter: Abu Jamal); HCJ 10467/03 Sharbati v. GOC Home Front Command [12], 814 (hereinafter: Sharbati)). These cases are all similar to the present cases, which concern cruel attacks in which Israeli citizens were murdered in cold blood. And all of this against the background of a harsh security situation in which, unfortunately, attacks and attempted attacks directed against the citizens and residents of Israel are a daily occurrence.

 

The Authority of the Military Commander – Compliance of the Policy of Home Demolitions with International Law

25.       The Petitioners contend that the Respondents’ policy violates international humanitarian law and human rights law. These contentions – which go to the root of the authority of the Military Commander to order the forfeiture and demolition of the homes of protected persons – were recently raised before this Court in the HaMoked Defence Center case [3]. This Court did not find grounds for deviating from the case law on this matter (for elaboration, see: ibid., paras. 21 – 24 per Justice E. Rubinstein, and para. 3 per Justice E. Hayut). As stated, today I handed down a decision denying an application for a further hearing of that case (the above-mentioned HCJFH HaMoked Defence Center [4]). In my decision, I noted that a further hearing is intended to address explicit, detailed rulings of the Court, and not questions that the Court did not discuss in depth. I accordingly dismissed the applicants’ main argument that a further hearing should be held precisely because this Court refused to re-examine questions that had been decided in the case law concerning the authority of the Military Commander to order the forfeiture and demolition of the homes of terrorists.

26.       In view of the judgment of this Court in the HaMoked Defence Center case [3], I saw no grounds for revisiting these questions, inter alia, considering the fact that this Regulation has been invoked both within the borders of Israel as well as in the area of Judea and Samaria. On this matter, the words of Justice E. Rubinstein in the HaMoked Defence Center case bear repeating: “we shall see –– with all due respect – that the authority exists, and the main question is that of reasonableness and discretion” (ibid., para. 20). Judicial review of the exercise of authority under Regulation 119 of the Defence Regulations must focus on the subject of discretion, which I will now address.

 

The Effectiveness of the Policy of Demolition of Houses

27.       Over the years, Petitioners have often raised the argument that there is no evidence attesting that the demolition of the homes of terrorists has the potential to deter others from perpetrating acts of terror. A similar argument was made in the present petitions. This Court has ruled more than once that the effectiveness of the policy of demolition of houses is a matter for the evaluation of the security establishment, and that in any case it is difficult to conduct a scientific study that would prove how many attacks were prevented as a result of the demolition activity (see, inter alia: HCJ 7473/02 Bahar v. IDF Commander in the West Bank [13], 490; HCJ 3363/03 Baker v. IDF Commander in the West Bank [14]; HCJ 8262/03 Abu Selim  v. IDF Commander in the West Bank [15], 574-575 (hereinafter: Abu Selim); HCJ 2/97  Abu Halaweh v. GOC Home Front Command [16] (hereinafter: Abu Halaweh).

At the same time, since demolition of houses is, as we have said, a drastic measure – which sometimes violates the basic rights of those who have not been involved in terror – this Court has stressed that the security authorities should periodically examine whether their assessment on this matter is correct and effective (see: HCJ 8575/03 Azzadin v. IDF Commander in the West Bank [17], 213). Recently, it was held in the framework of a judgment in the HaMoked Defence Center case [3], on which the Respondents rely, that even though, at the time, there were no grounds for intervention in the policy of the Military Commander to order the forfeiture and demolition of the homes of terrorists who perpetrated serious attacks, he should bear in mind that he is under a duty to re-examine the effectiveness of this policy. Justice E. Rubinstein wrote as follows:

                      …I believe that the principle of proportionality does not allow us to continue to assume forever that choosing the drastic option of house demolition, or even of house sealing, achieves the desired purpose of deterrence, unless all of the data that properly confirms that hypothesis is presented to us for our review. We accept the premise that it is hard to assess this matter, and this Court has often addressed this problem … However, as aforesaid, I believe that employing means that have considerable consequences for a person’s property justifies an ongoing review of the question of whether or not they bear fruit, especially in view of the fact that claims have been made in this regard even among IDF officials, and see, for example, the presentation of the Major General Shani Committee which, on the one hand, presents a consensus among intelligence agencies regarding the benefits thereof, and on the other hand states, under the title “Major Insights” that “within the context of deterrence, the measure of demolition is ‘eroded’” … Thus I believe that State authorities must examine the measure and its utility from time to time, including conducting follow-up research on the matter, and insofar as possible should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of damage upon parties who are not suspects nor accused persons […] In my opinion, the requested effort would be appropriate in order to meet the basic requirements of Basic Law: Human Dignity and Liberty, the importance of which in the Israeli democratic system requires no elaboration. We are not setting hard-and-fast rules as to the nature of the required research and data. That will become evident, to the extent necessary, at the appropriate time. At present, of course, the engineering issue should be thoroughly examined in respect of each specific demolition or sealing, in order to ensure that the goal is achieved within its boundaries, and without deviation.

Justice E. Hayut concurred, adding:

Finally, I will say that I attach great importance to the comment made by my colleague Justice Rubinstein concerning the need in the future to conduct, from time to time and to the extent possible, follow-up and research concerning the measure of house demolition and its effectiveness … The recent wave of terror that began with the frequent killings and massacres of innocent civilians, passers-by and congregation members at a synagogue, also marked an extreme change, characterized by terrorists from East Jerusalem, required a renewed application of this measure. However, these extreme cases should not obviate the need that was addressed by my colleague to re-examine from time to time, and raise doubts and questions concerning the constitutional validity of home demolition under the tests of the limitation clause. In his poem, “The Place Where We Are Right” the poet Yehuda Amichai lauds the doubts that should always trouble even the hearts of the righteous:

But doubts and loves

Dig up the world

Like a mole, a plow.

 

And a whisper will be heard in the place

Where the ruined

House once stood

(ibid., para. 6) (and see also, recently, the minority opinion of Justice U. Vogelman in HCJ 5839/15 Cedar v. IDF Commander in the West Bank [18] (hereinafter: Cedar).

28.       Against the above background, and mindful that several months have elapsed since the judgment in the HaMoked Defence Center case [3], we asked the Respondents at the hearing if there had been any examination of the matter. In answer to our question, the Respondents insisted that they were in possession of classified material that supported their argument concerning the benefit derived from demolition of the homes of terrorists (for a similar claim raised by the State in the past, see, e.g., the Abu Selim case [15], at p. 574). With the consent of counsel for the Petitioners, we examined the classified material ex parte. I will emphasize that the material that was presented to us does not fall into the category of “research”, but rather, it is a collation of information. This information attests to a not insignificant number of cases in which potential terrorists refrained from carrying out attacks due to their fear of the consequences for their homes and those of their family.

29.       Having examined the classified material, I am of the opinion that considering the fact that until recently, the number of home demolitions was relatively limited, what was presented to us is sufficient to support the conclusion that there is no cause at this time to intervene in the decision of the Military Commander and the political echelon (that was presented with the material), whereby the demolition of homes indeed constitutes a deterrent factor for potential terrorists, who are afraid of causing harm to their family. As Justice Vogelman noted in the Cedar case, “[…] in fact, if the demolition of the home of one terrorist deters another terrorist from harming human life, then we must say that the selected measure has achieved a benefit which may be the noblest of all imaginable benefits” (ibid., para. 3). Accordingly, the material that was presented to us satisfied me that the fear of harm to the homes of the families of the terrorists constitutes a deterrent for potential terrorists. Therefore, despite the doubts that have been expressed of late in the case law and the literature with respect to the deterrent power of house demolition, I see no reason to depart from the case law, according to which there is, in general, no justification for intervening in the decision of the competent authorities to implement this measure. Nevertheless, I will mention that after studying the material on which the Respondents relied in making their decision, I cannot say that causing damage to a house that is owned by an “outside” third party, who is not a relative of the terrorist and who has no knowledge of his intentions, creates deterrence. The classified material does not lay a foundation for a determination that harm of this kind, too, has a deterrent effect. I will return to this at greater length below.

 

Claim of Discrimination

30.       The Petitioners also argued that the policy of the Military Commander discriminates between Jews and Arabs. This argument should be dismissed. It is well known that the burden of proving a claim of discrimination falls upon the shoulders of the one making the claim. As has been held, this is not a light burden (see: HaMoked Defence Center [3], para. 25 per Justice E. Rubinstein; see also HCJ 6396/96 Zakin v. Mayor of Beer Sheba [19]). The present petitions make a general claim of discrimination, without offering serious support. The Petitioners did not, therefore, present a sufficient factual basis to support their claim, and as such it does not warrant our intervention (see and cf. also: HCJ 124/09 Dawiat v. Minister of Defence [20], para. 6 per Justice E.E. Levy; Sharbati [12], at p. 815; Qawasmeh [2], para 30 per Justice Y. Danziger).

 

The Hearing Process

31.       The Petitioners further argued that the timetable set for the hearing process in their matter was unreasonable. Some also complained that the material on which the Respondents based their decision, such as the evidentiary material incriminating the suspects and the engineering plans for demolishing the buildings, was not made available for their examination.

32.       It is a fundamental principle that an administrative agency may not exercise its authority in a way that may harm a person before that person is given a proper chance to present his arguments. This principle is derived from the conception that an administrative authority must act fairly (see: I. Zamir, Administrative Authority, vol. 2, 1148 (2^nd ed., 2011) (Heb.) (hereinafter: Zamir). The rule that a hearing must be held, and the reasons underlying it, also apply to the exercise of authority under Regulation 119 of the Defence Regulations. As such, as this Court has held in the past, per President M. Shamgar, that the exercise of such authority must normally be delayed in order to allow those who will be harmed thereby to make their arguments:

                      … it would be appropriate that an order issued under Regulation 119 should include a notice to the effect that the person to whom the order is directed may select a lawyer and address the Military Commander before implementation of the order, within a fixed time period set forth therein, and that, if he so desires, he will be given additional time after that, also fixed, to apply to this Court before the order will be implemented. (HCJ 358/88 Association for Civil Rights in Israel v. GOC Central Command [21], 541 (hereinafter: ACRI case).

Only in exceptional circumstances that require carrying out the demolition immediately due to military and operational considerations, will there be no postponement until the hearing is held:

The Respondents do not dispute that there are circumstances – and until now these were apparently the majority of instances – in which, even in their opinion, there is no reason not to permit the making of objections (within a fixed time) before the person who issues the order and also to allow the possibility of postponing its implementation for an additional fixed time (48 hours were mentioned) during which it will be possible to present a petition to the Court requesting the exercise of judicial review over the administrative decision. It is unnecessary to add that it is possible that an interlocutory order will be given, as a result of the application to the Court, and additional time will pass until the actual decision will be given.

However, it is argued, there are situations whose circumstances require on-the-spot action, and in which it is not possible to delay the implementation of the action until the said periods have passed. […]

According to our legal conception, it is, therefore, important that the interested party be able to present his objections before the Commander prior to the demolition, to apprise him of facts and considerations of which he may have been unaware […].

…There are military-operational circumstances in which judicial review is inconsistent with the conditions of time and place or the nature of the circumstances [...].

In my opinion, ways should be found to maintain the right to present one’s claim before implementation of a decision which is not among the types of situations [in which immediate demolition is necessary – M.N.] (ibid., at pp. 540-541) (emphasis added – M.N.)

In the present case, as part of the hearing process, notices were sent to the family members living in the buildings earmarked for demolition. The notices specified the grounds for the planned forfeiture and demolition of their homes. The notice also explained that they could submit an objection to the Military Commander. All the notices concerning the planned demolitions were sent on Thursday, October 15, 2015. The wording of the notices was also essentially the same (with the relevant changes), and the time-tables for submitting objections were identical. For the purpose of illustration, I bring as an example the verbatim wording of one of the notices that were sent (the object of HCJ 7079/15 and HCJ 7082/15):

The Commander of the IDF forces in Judea and Samaria, by virtue of his authority as the Military Commander in the area of Judea and Samaria, in accordance with Regulation 119 of the Defence (Emergency) Regulations, 1945 and his other powers under any law and security legislation, hereby notifies that it is his intention to render forfeit and demolish the apartment on the middle floor of a three-story building in Shechem […] in which the terrorist Karam Lutfi Fathi Rizek resides […].

This measure is adopted because the above-mentioned acted to carry out a terror attack on October 1, 2015 in the course of which he brought about the death by gunfire of the late Henkin couple […]

If you wish to present your arguments or objections to this intention, you must specify them in writing […] by October 17, 2015 at 12:00 […]

Any factual or legal claim that you raise must be supported by documentation and other proofs, which must be attached to your letter to the Military Commander (emphasis added – M.N.).

In my opinion, in the matter at hand, the timetable that was set is problematic. In all the present cases, the amount of time given to the Petitioners to submit objections was very short: from Thursday, Oct. 15, 2015 until Saturday, Oct. 17, 2015, which included days of rest. Is this a coincidence? I accept that, usually, demolition orders that are issued for the homes of terrorists must be carried out quickly in order to achieve deterrence. Fixing tight schedules is therefore justified. Nevertheless, and despite the urgency, the timetables must be reasonable and fair under the whole set of circumstances (see and cf: the ACRI case, at pp. 540-541; see also: Zamir, at p. 1177). This conclusion is derived from the basic principle that a competent authority has not fulfilled its duty by summoning the relevant person to present his arguments, but rather, it must hold a fair hearing process, in a manner that affords the person who will be harmed by the decision a suitable opportunity to have his say.

33.       I believe that considering the nature of the authority that is exercised and the violation of the human rights of innocent persons that it may cause, a time period of one working day, and sometimes less than that, to submit an objection is not sufficient. Moreover, the haste with which the procedures were conducted caused additional flaws, such as a mistake in the Arabic wording of the notice that was issued for the house in which Hamed lived.  Even though the mistake in the wording of the order was technical in nature, and it was later corrected in the framework of the decision on the objections, haste in the conduct of procedures of this type is liable to entail serious mistakes that might, on occasion, be irreversible (for an example of a recent mistake in the identification of the house marked for demolition, see: HCJ 7219/15 Abu Jamal v. GOC Home Front Command [22]). Nevertheless, since the Petitioners have had the opportunity to make their arguments before us, and the possibility of supplementing their arguments after the hearing, I do not think that the timetable under discussion in our case ultimately caused a miscarriage of justice (see and cf: the Abu Selim case [15], at p. 573). Therefore, in my opinion, the timetables do not justify  the extreme relief of voiding the orders. Looking to the future, the Respondents must establish reasonable procedures in regard to the relevant dates, including the amount of time for submitting objections.

34.       Several of the Petitioners further argued, as stated, that the Respondents ought to have allowed them to examine the evidentiary material incriminating the relevant suspect, and the engineers’ opinions. As I pointed out, the right to be heard that is accorded to the individual must be fair and appropriate. Therefore, in principle, the authorities should see to providing those involved with the contents of the documents on which their decision relies (regarding the general duties of the authority in connection with holding a hearing prior to making a decision, see: Zamir, at p. 1173; Dafna Barak-Erez, Administrative Law, vol. 1 499 (2010) (Heb). However, there may be circumstances in which this is not possible, for example, for reasons of state security and others (see: ibid., at pp. 506-507). Against this backdrop, the Respondents did well in ultimately submitting to the Petitioners and to the Court those unclassified parts of the confessions of the three suspects in the murder of the Henkin couple, and the confessions of additional persons involved in the murder of Malakhi Rosenfeld. Since the Petitioners were given an opportunity to respond to the contents of this evidence, there are no grounds for intervention in this regard. I will, however, comment that as a rule, the notice of intention to render forfeit and demolish should contain details, albeit minimal, about the evidentiary material that exists against the suspect who lives in the house that is marked for demolition (see and cf. the ACRI case [21], at p. 541).

35.       In my opinion, there are also no grounds warranting intervention in the refusal of the Respondents to allow the Petitioners to examine the engineers’ reports. In the cases before us, in which claims were made about possible damage to the buildings adjacent to the building marked for demolition, the Respondents, in the framework of their decision on the objections and in their responses to the petitions, described the way in which each demolition would be carried out, and explained that an engineer would supervise the demolitions themselves. Hence, the Petitioners were presented with a comprehensive picture of the planned demolitions, and their arguments that the demolition plans remained vague cannot be accepted. In addition, those Petitioners who so wished submitted engineers’ opinions of their own. The Respondents must examine these opinions, if they have not already done so, with an open mind. It may be that in the future, in cases in which, prima facie, an engineering problem arises (such as a case in which the apartment marked for demolition is the middle floor of a building, or a case in which the apartment marked for demolition is in a multi-story building that may collapse), it will be appropriate to describe the way in which the demolition is planned already in the framework of the notice of intention to render forfeit and demolish. At the same time, taking account of the entire set of circumstances of the cases at hand, the fact that the Respondents did not hand over the engineers’ opinions to the Petitioners does not constitute, in my opinion, grounds for intervening in the Respondents’ decision.

And now, from the general issues to the particular questions that arose in the petitions.

 

Deliberation and Decision – Particular Arguments

Decision in the petition concerning the demolition order issued for the home of Ma’ed (HCJ 7084/15)

36.       This petition relates to the forfeiture and demolition order issued for the home of Ma’ed, who together with Abdullah, is suspected of murdering Malakhi Rosenfeld. The suspect’s family, who live in a single-story house that is marked for demolition, petitioned against the order. The petition argued, in particular, that the Respondents have no basis for exercising their authority under Regulation 119 of the Defence Regulations. According to the Petitioners, Ma’ed was not arrested by the authorities in Israel and was not questioned by them. Rather, he is held by the Palestinian Authority.  In any case, he has not been charged in Israel. In these circumstances, the Petitioners argue that Ma’ed’s part in the act attributed to him was not proven. Alternatively, it is claimed that Ma’ed was not a resident of the building marked for demolition. As described in the petition, between the years 2006 and 2010, Ma’ed was in the United States, and after returning from there he married and went to live elsewhere with his wife. In the last year and a half, after divorcing his wife and until his arrest, Ma’ed would come to the house that is the object of the order two or three times a week, but most nights he slept at his workplace. Therefore, the Petitioners request that we order the Respondents to refrain from carrying out the forfeiture and demolition of the building to which the order relates.

37.       The Respondents responded that Ma’ed’s role in the acts is firmly based on administrative evidence, including Abdullah’s confession and the information filed against him. The Respondents also mentioned that they have classified material that also supports Ma’ed’s guilt. According to the Respondents, this evidence constitutes a sufficient evidentiary basis for the purpose of exercising authority under Regulation 119 of the Defence Regulations. As will be recalled, at a later stage, the Respondents attached the confessions of additional persons involved in the shooting attack to the supplementary notice, which link Ma’ed to its perpetration. The Respondents further argued that the facts mentioned by the Petitioners, according to which the suspect slept in the building earmarked for demolition half the week, and that he does not own another apartment, consolidate the required residential link for the purpose of demolishing the building.

38.       The particular questions that relate to the decision on this petition are questions of fact. I will discuss them in order.  According to the provisions of Regulation 119 of the Defence Regulations, the authority it confers may be exercised in relation to a particular building, if the competent authority becomes aware that a resident of that building has committed an offence of the type specified in the Regulation. In this context it has been held that administrative evidence attesting to the fact that an assailant lived in the house marked for demolition suffices (see: Awawdeh [1], para. 25 of my opinion; Sharbati 12], at p. 815). Indeed, “the military commander does not require a conviction by a judicial instance, and he himself is not a court. From his point of view, the question is whether a reasonable person would regard the material before him as being of sufficient probative value” (HCJ 361/82 Hamari v. GOC Judea and Samaria 23], 442; see also: HCJ 802/89 Nisman v. IDF Commander in the Gaza Strip [24], 464; HCJ 897/86 Jabber v. GOC Central Command [25], 524-525 (hereinafter: Jabber); Mughrabi [5], para. 14, per Justice H. Melcer; HCJ7823/14 Javis v. GOC Home Front Command [26], paras. 10-12, per Justice E. Rubinstein).

39.       In the present case, the Respondents had detailed confessions of Ma’ed’s partner, Abdullah, which described Ma’ed’s central role in carrying out the attack. They also had the statements of additional persons who were involved in the planning and execution of the shooting attack: the confession of Amjed Hamad, who said that he purchased the weapon for Ma’ed that had been used in carrying out the attack, and added that Ma’ed told him about his involvement in the act, and the confession of Faid Hamed, who took part in organizing the terrorist cell for the attack, and he too provided details of Ma’ed’s part in it. On the other hand, no argument was raised by the Petitioners relating to the claims of his partner Abdullah or to the claims of the other people involved. In these circumstances, the material that was presented to us is sufficient to serve as an administrative evidentiary basis for the exercise of the authority (see and cf: the Jabber case [25], at pp. 524-525, and the references there). In view of the above, in my opinion no weight should be attributed to the fact that Ma’ed is held by the Palestinian authority and has not yet been interrogated in Israel (see and cf.: HCJ 2418/97 Abu Farah v. IDF Commander in Judea and Samaria [27]).

40.       I also found no substance to the claim that Ma’ed did not live in the building marked for demolition. For the purpose of exercising authority under Regulation 119 of the Defence Regulations, it must be shown that the terrorist was a “resident” or “inhabitant” of the building marked for demolition (see: HCJ 6026/94 Nazal v. IDF Commander in Judea and Samaria [28],  343-344 (hereinafter: Nazal); HCJ 893/04 Faraj v. IDF Commander in the West Bank [29], 6-7 (hereinafter: Faraj)). According to the case law, a person’s absence from his residence does not necessarily sever the required residential connection. This depends on the nature of the absence and the concrete circumstances of the case (see: Nazal, at pp. 343-344). Thus it was found, for example, that a terrorist’s residence in a boarding school during his studies did not sever his connection to his parents’ home (HCJ 454/86 Tamimi v. Military Commander in the West Bank [30]). This also applied in another case in which the terrorist would often come home to change his clothes and stock up on food (HCJ 1245/91 Fukhah v. Military Commander in the West Bank [31]; and see also cases in which it was ruled that the absence of a terrorist from his home due to the fact that he was fleeing from the security forces does not sever the residential link: see Nazal; Faraj). On the other hand, this Court intervened in the decision of the military commander to demolish the home of the terrorist’s uncle, because it was found that his father’s home was, in fact, the permanent residence of that terrorist (HCJ 299/90 Nimmer v. IDF Commander in the West Bank [32], 628). In the present case, there is no dispute that the suspect usually stays part of the week in the family home that is earmarked for demolition, and in any case no convincing evidence was presented attesting that he has any other permanent residence (see and cf: HCJ 350/86 Elzak v. Military Commander in the West Bank [33]; Jabber, at p. 525). There are, therefore, also no grounds for our intervention in this regard.

 

Decision in the petitions concerning the demolition order issued for the home of Abdullah (HCJ 7040/15, HCJ 7077/15, HCJ 7180/15)

41.       The order that was issued for the home of Abdullah, Ma’ed’s partner, relates, as noted, to the apartment on the top floor of an eight-story building in Silwad. Three separate petitions were submitted against this order. The first petition (HCJ 7077/15) was filed by the brother and sister of the accused, who reside in the apartment marked for demolition. That petition specifically argued that the apartment to be demolished is leased from a third party, who is not related to the family and who also knew nothing of the intentions of the accused. At the hearing before this Court, counsel for the Petitioners added that according to the lease agreement, this is a short-term lease which can be renewed (or terminated) on an annual basis. In view of this, the Petitioners argued that demolition of their home will not be a deterrent to the perpetration of terror attacks, and it must be revoked. In addition, it was argued that there is a defect in exercising the authority some four months after the perpetration of the attack to which the order relates, and that the Respondents must take into consideration the damage that is likely to be caused to adjacent buildings.

42.       The second petition (HCJ 7040/15) was submitted by the owner of the building who leased the apartment marked for demolition to Abdullah’s mother. This petition argued that demolition of the building owned by the Petitioner, who is a third party with no familial or other relationship to the terrorist or his family, causes serious damage to his property, amounting to collective punishment, and will entail harm to other innocent inhabitants.

43.       The third petition (HCJ 7180/15) was submitted by the inhabitants and lessees of a building in which the apartment marked for demolition is situated. In the framework of the petition, the Petitioners complained that they were not given the opportunity to see the engineers’ opinions on the basis of which the demolition would be carried out, or the evidence against the accused, and they argued that the Respondents should at least undertake to compensate them if their apartments are damaged as a result of the demolition.

44.       In their responses to these three petitions, the Respondents initially argued that the demolition order could be carried out despite the fact that Abdullah’s apartment is leased. The Respondents argued that according to the case law, the proprietary status of a terrorist as owner or lessee does not prevent exercise of the authority. The Respondents further argued, from the point of view of proportionality, that they considered the argument that the building is not owned by the accused or his family, but were of the opinion that despite this fact, it was necessary to deter potential terrorists from carrying out attacks. As for the way in which the demolition would be effected, the Respondents explained that it would be done from within the apartment, by means of drilling and blasting in some of the pillars and external walls. According to the Respondents, the anticipated result is that some of the internal walls in the apartment will be destroyed, and that only the south-eastern part of the apartment will collapse. The Respondents stressed that at the time of the demolition, an engineer will be present on location and will supervise the execution, and that no damage to the adjacent buildings is anticipated as a result of this action. As for the undertaking to compensate the neighbors in advance for incidental damage, the Respondents cited the Cedar case [18], which held that it may be possible for the neighbors to sue for compensation, considering the relevant circumstances. In the supplementary notice, the Respondents explained that subject to certain conditions specified above, they agree, beyond the letter of the law, to repair any damage caused to adjacent buildings or to provide compensation therefor. Regarding the passage of time since the perpetration of the attack and until the issuing of the order, the Respondents argued that exercise of the authority under Regulation 119 of the Defence Regulations is determined according to the particulars of time and place, and it is a matter for the discretion of the competent authorities.

45.       After considering the arguments of the parties, I have reached the conclusion in regard to the home in which Abdullah lived, that the decree nisi issued in the petition of the owner of the building (HCJ 7040/15) should be made absolute, due to the weak link between the terrorist and his family and the apartment that is marked for demolition, and also due to the lack of a basis for the conclusion that demolition of the home has a potential to deter potential attackers in such circumstances. As stated above, according to the language of Regulation 119 of the Defence Regulations, it is sufficient if the terrorist is a “resident” or “inhabitant” of the house marked for demolition. As a logical outcome of this, the case law has determined that the authority under Regulation 119 of the Defence Regulations may be exercised as long as a “residential link” exists between the terrorist and the house. Hence it was ruled, inter alia, that as formulated, the Regulation allows an order to be issued to demolish the house that a terrorist was renting (see HCJ 542/89 Aljemal v. IDF Commander in Judea and Samaria [34] (hereinafter: Aljemal); see also: HCJ 1056/89 Alsheikh v. Minister of Defence [35] (hereinafter: Alsheikh); HCJ 869/90 Lafrukh v.IDF Commander of the Judea and Samaria Area – Beit El [36] (hereinafter: Lafrukh); HCJ 3567/90 Sabar v. Minister of Defence [37] (hereinafter: Sabar); HCJ 3740/90 Mansour v. IDF Commander in Judea and Samaria [38]; Abu Halaweh [16]).

46.       The authority therefore exists in this case as well. Nevertheless, as is well known, judicial review of the decision of the Respondents does not end at the level of authority. The discretion in exercising the authority must also be examined, in light of the circumstances of the case and taking into account the criteria of proportionality. According to these criteria, there must exist, inter alia, a rational connection between the purpose and the measures that are adopted. As explained above, this Court ruled in a number of cases that the purpose of demolishing the homes of terrorists is not to punish their families, but to deter potential terrorists who are liable to refrain from carrying out terror attacks if they know that by perpetrating these acts they are endangering their homes and those of their families. At the same time, I seriously doubt whether, in the circumstances of the present case, demolition of Abdullah’s apartment will act as a deterrent to the perpetration of acts of terror. I will explain. As will be recalled, the Respondents presented us with classified information that, in principle, supports the claim of deterrence. However, the classified material contains no indication that the demolition of a house owned by an unrelated third party – who has no familial or other relationship to the terrorist or his family, and where almost no economic harm ensues to the terrorist or his family – helps in deterring potential terrorists (and cf. the circumstances of the Awawdeh case [1], which are different from the present case. There, the terrorist leased an apartment from his brother). This, as opposed to evicting the family of the terrorist from the apartment. A judge has only what he sees before him. The most recent decision of this Court in the case of HaMoked Defence Center required, as noted, an examination of the effectiveness of deterrence. The material that was submitted to us does not indicate effectiveness in a case such as the one under discussion. Accordingly, the case before us differs from other cases that were discussed in the decisions of this Court.

47.       What we have said above is inextricably related to the concrete circumstances of the case: the mother of the accused Abdullah rented the apartment under an agreement that is renewed annually, and which according to its terms, is due to expire this coming September. The agreement was submitted in Arabic, and we had it translated. According to the agreement, the family paid for the house one year in advance, and no more than that. In such circumstances, most of the damage caused by the demolition will fall on the lessor, and not on the accused and his family. Therefore, it would seem that the assumption that carrying out the demolition in this case will deter potential terrorists is problematic. Moreover, I seriously doubt whether it can be assumed – with no basis in any material – that a lessor who is an outsider has any influence over the decisions of a terrorist. One way or another, the Respondents also did not argue that demolishing the home of a third party is liable to incentivize lessors to take steps that will deter their tenants from carrying out acts of terror.

48.       Thus, in the present case, the Respondents did not show a rational connection between the deterrent purpose and demolishing the house that is the subject of the petition. Furthermore, in accordance with the criteria of proportionality, it must be established that a proper relationship exists between the benefit of the measure that is adopted and the harm (the criterion of proportionality “stricto sensu”). In this framework, a balance must be struck between “[…] the gravity of the terrorist act and the scope of the sanction, between the anticipated harm to the family of the assailant and the need to deter future, potential assailants; between the basic right of every person to his property and the right and duty of the government to maintain security and public order” (HCJ 6299/97 Yassin v. Military Commander in the Judea and Samaria Region [39], para. 13, per President A. Barak; See also: Yoram Dinstein, The Israel Supreme Court and the Law of Belligerent Occupation: Demolitions and Sealing Off of Houses 29 Isr. Y.B. Hum. Rts. 285, 297 (1999)). When doing so, the residential link of the terrorist and the building, as well as the effect on other people of exercising the authority, must be weighed. In view of these criteria, in all the past cases dealing with the demolition of premises rented from a third person, the competent authorities adopted the sanction of sealing off, rather than demolishing the house. It should be emphasized that sealing off is reversible, and it may be cancelled in the course of time, in view of the provision at the end of Regulation 119(1) that allows for remission (see in particular the cases of Aljemal; Alsheikh; Lafrukh; Sabar; Mansour; Abu Hilweh; cf. the measure of sealing off with concrete adopted in other cases (that did not involve rental): HCJFH 11043/03 Sharbati v. GOC Home Front Command [40]). In our case, beyond the fact that there is no rational connection between demolishing the apartment and the deterrent purpose, the required deterrence can be achieved by evicting the family from the apartment and sealing it off for a limited period. Indeed, in the present case, the owner of the building suggested, on his own initiative, to evict the family of the terrorist from the apartment, and even agreed to it being sealed off for a certain period (see: the response of the Petitioner in HCJ 7040/15 of Nov. 5, 2015). The Respondents, on their part, objected to the Petitioner’s proposal. They argued that alternatives to demolition had been examined, but were not practical. The Respondents’ handling of this issue is generalized, and contains no explanation of why – in a case in which the main harm will be caused to a third party who is not in any way connected to the terrorist who has little connection to the building – it would be justified to adopt the extreme sanction of demolition.

49.       Therefore, in my opinion, we should order that the demolition order issued in regard to Abdullah’s home be rescinded, while requiring the Petitioner in HCJ 7040/15 to carry out his proposal to evict the family of the accused from the apartment by Nov. 17, 2015 at 12:00. The Respondents argued that sealing off is not possible, and therefore it is sufficient to evict the family from the apartment. I would stress that my intention is not to determine that it will not be possible to adopt the measure of demolition in every case in which a terrorist lives in a rental apartment. My conclusion is limited to the concrete circumstances of the case, in which this measure, in the whole set of circumstances that were described, cannot be regarded as proportionate.

50.       As for the argument of delay raised by the family of the accused in their petition (HCJ 7077/15), recently, this Court ruled in the Cedar case that, in principle, the date for carrying out the demolition of terrorists’ homes is a matter for the discretion of the competent authorities (see and cf. also: HCJ 4747/15 Abu Jamal v. GOC Home Front Command [41]). Nevertheless, a decision on this matter, too, is subject to the familiar criteria of reasonableness and proportionality (Cedar [18], para. 7, per Deputy President E. Rubinstein). In practice for the present case, the forfeiture and demolition order that is the subject of the petition was issued – according to its wording – “because the inhabitant of the house, Abdullah Munir Salah Ashak […] murdered, on June 29, 2016, the late Malakhi Rosenfeld and wounded three others.” However, the precise timing of the execution of the order derives from the circumstances of time and place i.e., the recent rise in the number of attacks (see: decision of the Respondents to the objection of the Petitioners of Oct. 19, 2015). On this basis, it can be determined that the decision to demolish was made as a direct result of the perpetration of the attack by Abdullah, taking into account the grave security situation and the need for deterrence. In my opinion, there is nothing wrong with this (but cf.: the dissent of Justice U. Vogelman in the Cedar case; dissent of Justice D. Dorner in HCJ 1730/96 Salem v. IDF Commander [42] 364 (hereinafter: Salem)). Indeed, as a rule, notice of the intention to render forfeit and demolish a house should be given close to the time of the attack (see: Cedar, para. 7 per Deputy President E. Rubinstein). However, considering the whole set of circumstances, including the fact that the information against Abdullah was filed on Aug. 17, 2015, the argument of delay is not relevant here (and see also:  Cedar (in which the notice of the intention to demolish was given some seven months after the attack occurred); Salem (after the passage of four months); Alsheikh (five months); HCJ 228/89 Aljemal v. Minister of Defence [43], (in which over a year elapsed between the time of the attack and the issuing of the order); I will mention that in HCJ 6745/15 Abu Hashia v. Military Commander in the West Bank [44], a decree nisi was recently issued in a petition concerning a demolition order that was issued about eleven months after the attack (Deputy President E. Rubinstein and Justices Z. Zylbertal and M. Mazuz, decision of Oct. 29, 2015))[1].

In their petition, the family of the accused also raised an argument concerning the damage that was liable to be caused to the adjacent apartments. Having held, as explained above, that intervention the Respondents’ decision in this case is justified, this argument no longer has any bearing. The same applies to the petition of the neighbors (HCJ 7180/15), which also focused on the damage likely to be caused to buildings adjacent to the apartment marked for demolition. I would emphasize that these petitions, per se, should be denied. But granting the petition of the owner of the building (HCJ 7040/15) has practical implications for these petitions.

Decision in the petitions concerning the demolition order issued for the home of Hamed (HCJ 7076/15 and HCJ 7085/15)

51.       In the case of Hamed, the suspect in the murder of the Henkin couple, a forfeiture and demolition order was issued for the two middle floors of a four-story building in the area of Askan Rujib in the city of Nablus. As will be recalled, two petitions were filed against the order. The first petition (HCJ 7085/15) was filed by the family of the suspect who live together on the floors marked for demolition. In the framework of this petition, the Petitioners argued that the suspicions against the three people involved – Kussa, Rizek and Hamed – had not yet been proven. According to them, as long as their interrogation was not complete and no charges had been filed or decision rendered in relation to any of the three in court, there is no justification for ordering the demolition of their homes. In addition, the Petitioners argued that Hamed is renting the second floor from his mother, Petitioner 2, and that for this reason too, there should be no demolition. Alternatively, the Petitioners argued that the intention of the Respondents to destroy two apartments that are situated on two different floors, when the suspect did not live on the floor on which the Petitioners lived, renders the decision disproportionate. Alternatively, the Petitioners asked that we order the Respondents to refrain from carrying out the demolition by means of blowing up the house.

52.       The second petition (HCJ 7076/15) was filed by the suspect’s brother, who lives with his family on the ground floor of the building that is the object of the order, and by the owners of the properties adjacent to the building. This petition argued, on the basis of the engineers’ opinion attached to it, that the planned demolition will cause structural damages to the adjacent building. Finally, the Petitioners contended that the formulation of the order in Arabic was flawed in that it said that the Respondents’ intention was to demolish the ground floor, whereas the Hebrew version referred to the first and second stories of the building.

53.       In response, the Respondents claimed that they are in possession of information indicating the involvement of Hamed in carrying out the attack to which the order relates. Later, after being asked to do so, the Respondents attached the confessions of the suspects in the Henkin murders, including the confession of the suspect Hamed, to the supplementary notice. To ground the residential connection of the suspect to the two stories of the building, the Respondents attached a document entitled “Summary of the Mapping of the House of the Terrorist Yehieh Haj-Hamed in Askan Rujib in Nablus Oct. 6, 2015” (hereinafter: mapping summary) to the supplementary notice.  According to this document, the suspect’s family lived on the first floor, whereas the second floor belonged to the suspect himself and is in the final stages of construction. According to the Respondents, in these circumstances there is justification for demolishing the two stories of the building. As for the question of safety and the method of demolition, the Respondents noted that the demolition plan had been prepared by professionals who are qualified engineers, with an attempt to prevent, insofar as possible, damage to the adjacent buildings or to parts of the building that are not marked for demolition. As for the method of demolition, the Respondents explained that use would be made of controlled explosions, e.g., small explosive charges, in order to create a shock that would render the stories unusable. The Respondents further stressed that at the time of the demolition, an engineer would be present, supervising all the stages, and in any case, it is not expected to cause structural damage. In their response, the Respondents did not refer to the argument of the Petitioners in HCJ 7076/15 that the Respondents should undertake to compensate the Petitioners for incidental damage caused to their apartments as a result of the demolition. However, in the supplementary notice, the Respondents noted, as stated, that if adjacent buildings  are damaged as a result of negligent planning or execution of the demolition of the building, the State agrees, beyond the letter of the law, to repair the building or to compensate its owners, subject to the terms specified in the notice.

54.       In their responses to the supplementary notice, the Petitioners complained, inter alia, that the mapping summary was not made available for them prior to the date set for filing the objection. They also pointed out substantive differences between the description of facts in the response and the description of facts in the mapping summary. Thus, for example, whereas the Respondents wrote that the suspect Hamed often sleeps in his new apartment (on the second floor), in the mapping summary this fact was not mentioned. In view of this, the Petitioners argued that no weight should be attributed to this document, and in any case, it cannot be considered credible, convincing evidence. It was also argued that “[…] the fact that the suspect would stay in the apartment of his family and his parents below part of the time is only natural and understandable, and it does not negate his residence in his apartment above […].”Accordingly, the Petitioners asked that we order the Respondents, at very least, to refrain from demolishing the first floor, in which the family of the suspect lives.

55.       After considering the arguments of the Petitioners on the one hand, and those of the Respondents on the other, my opinion is that there are no grounds for our intervention in the decision of the Respondents to render forfeit and demolish the two floors in which Hamed lived. I will first address the factual basis. The Respondents were in possession of detailed confessions of the three suspects in the murder of the Henkin couple, each of which was consistent with the others. In accordance with the criteria laid down in the case law, which I discussed earlier, these confessions constitute a sufficient evidentiary basis. Even the Petitioners did not really dispute this, even though they were given an opportunity to raise arguments on this matter.  Therefore, there is an evidentiary basis for exercising the Respondents’ authority in the said case. As for the Petitioners’ argument according to which Hamed lived only on the second floor of the building, in my opinion, the mapping done by the Respondents, which relied on a survey of the premises and questioning of the family by the ISA coordinator, is sufficient in order to determine Hamed’s connection to both floors (see and cf.: Mughrabi [5], paras. 17-19 per Justice H. Melcer). Therefore, there are no grounds for our intervention in this regard, as well.

The Petitioners also objected to the process of issuing the forfeiture and demolition order, and emphasized the mistake in the wording of the order in Arabic. As was noted earlier, there was indeed a mistake in the order in Arabic. This mistake resulted from the haste in the process of issuing the orders. Let me emphasize once more that the Respondents must be meticulous in their conduct of a fair process, and in giving all those involved a proper opportunity to make their arguments. At the same time, once the said error in the wording of the order was corrected, there is no flaw that would justify ordering the cancellation of the forfeiture and demolition order.

In the present case, the argument about rental, too, cannot be accepted, in my opinion. Unlike the case of HCJ 7040/15 – in which, in my opinion, the forfeiture and demolition order should be revoked for the reason that the lessor there was an “unrelated” third party – in the present case, the apartment was leased from a family member, namely, the suspect’s mother. As for deterrence, there is no real difference between a case in which the terrorist lives with members of his family in a property owned by them, and a case in which the terrorist rents a property from a family member.  In both cases, the economic harm to the family of the terrorist is significant. Hence, a potential terrorist’s awareness of the possibility that his apartment or the apartment of his family will be demolished is liable to deter him from carrying out terror attacks.

56.       And now to the claim for compensation. As stated above, over the years this Court has narrowed the scope of Regulation 119 of the Defence Regulations, and held that the competent authorities must exercise reasonable discretion in its implementation. As will be recalled, we ruled that according to the material before us, and correct as of this time, the demolition of homes has the potential for creating deterrence. However, the demolition must still be proportionate. In this framework, there are different considerations that the competent authorities must take into account before deciding to exercise their authority. Inter alia, they must establish whether it is possible to demolish the residential unit of the terrorist without damaging other parts of the building or neighboring buildings, but “if it emerges that this is not possible, then settling for sealing off the relevant unit must be considered” (Salem [42], at p. 360). Thus,  the damage that is liable to be caused to adjacent properties is among the relevant considerations regarding the demolition of a particular property. The reason for this is that incidental damage to innocent persons impacts on the proportionality of the demolition. As was stated in the Alamrin case:

                      … it is inconceivable that the military commander should decide to destroy a complete multi-story house, which contains many apartments belonging to different families, merely for the reason that a person suspected of a terrorist act lives in a room in one of the apartments, and if nonetheless he should want to do this, this court could have its say and intervene in the matter. (HCJ 2722/92 Alamrin v. IDF Commander in the Gaza Strip [45], 699).

In view of these principles, the Respondents must fulfill their obligation to ensure that there is professional supervision of the execution of the demolition, and consider the opinion submitted by the Petitioners with an open mind. In the present case, too, the Respondents made it clear that a qualified engineer would supervise the demolition, and that they do not wish to cause structural damage to adjacent buildings. These undertakings of the Respondents are appropriate, and care must be taken to fulfill them. However, this does not exhaust the Respondents’ duty to act with proportionality. When innocent third parties, who are not related to the terrorist and did not know of his intentions, are liable to be harmed by the demolition, I would recommend to my colleagues that the demolition should be conditional upon repairing incidental damage or compensating for it, even if such damage is not the result of negligence on the part of the Respondents. I will explain.

57.       In the framework of the criteria of proportionality, we must be satisfied that the relationship between the proper purpose of the measure adopted and the violation of rights caused as a result of its use is proper (proportionality “stricto sensu”). This is a value-oriented criterion that is based on a balance between competing values and interests. Above, I discussed the serious harm that may be caused by the measure of demolition of homes to those who have done nothing wrong. This harm is all the more serious when it is caused to innocent third parties who are not connected to the terrorist, and whose only crime is their proximity to his place of residence. In my opinion, bearing in mind the need to balance the benefit gained against the harm it causes, the demolition ought to be conditional upon the repair of or compensation for harm caused to innocent third parties. Without this condition, we cannot say that the demolition is proportionate. In the past, the State did indeed undertake to repair incidental damage or pay compensation for it. Thus, for example, the State undertook to repair damage caused to floors adjacent to the floor marked for demolition (HCJ 2006/97 Ghanimat v. GOC Central Command [46], 653). In other cases, the State promised that if, despite efforts to prevent damage to adjacent buildings during the demolition, such damage is caused, compensation will be paid to those affected (see: Salem, at p. 363; HCJ 6932/94 Abu Elrob v. Military Commander of the Area of Judea and Samaria [47]; see also: HCJ 8124/04 Al-Jabari v. IDF Commander in the West Bank [48] (undertaking of the State to refrain from demolition if the adjoining floor would be damaged); see and cf. also: HCJ 4112/90 Association for Civil Rights in Israel v. GOC Southern Command [49],  631 (undertaking of the State to compensate owners of property damaged due to military needs)). In effect, in our case too, the Respondents do not strenuously oppose the repair of or compensation for incidental damage, but they attach several conditions to which the Petitioners objected in their responses to the supplementary notice. According to the Respondents, they are required to repair or compensate for damages caused by the demolition only in the event that the planning or execution were negligent, and subject to the opinion of an appraiser on their behalf and to a string of additional conditions: the flaw in the demolition of the building did not result from disturbances of the peace; the owners of the building did not receive compensation, restitution or any form of participation in the damage from the Palestinian Authority or from another body; the injured party is not a national of an enemy state nor active in or a member of a terrorist organization, or anyone on their behalf (sec. 5B of the Civil Damages Law).

58.       In my opinion, there is generally no room for limiting in advance the duty of the Respondents to pay compensation to third parties who are not relatives of the terrorist to cases of negligence in planning or execution or other conditions. On the contrary, the default position must be that compensation will be paid or damage repaired (on the need to compensate innocent parties even when the action was lawful, see and cf.: HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [50],  573 (hereinafter: Public Committee Against Torture); HCJ 2056/04 Beit Sourik Village Council v. State of Israel [51], 831 (hereinafter: Beit Sourik); on the obligation to pay compensation for breach of a constitutional right in general, see: CA 7703/10 Yeshua v. State of Israel – SELA Administration [52], paras. 20-34 of my opinion). I do not rule out the possibility that, in exceptional circumstances, the Respondents will not be required to pay compensation. However, as stated, I do not think that the exceptional cases in which the Respondents will be exempt from doing so should be determined in advance. I am not unaware of the recent judgment of this Court in the case of Qawasmeh [2], whereby the obligation to pay compensation is hypothetical as long as no damage has actually been caused:

                      In addition, I did not find it appropriate to discuss the Petitioners' request that the Respondent would undertake to compensate the injured parties should the demolition cause damage to adjacent properties. This is a hypothetical argument which should be heard, if at all, only in the event such damage is caused as aforesaid, and by the competent instances. (ibid., para. 11 per Justice Y. Danziger).

Indeed, it is only natural that if no incidental damage is caused as a result of the demolition, no duty of compensation to innocent parties will arise. At the same time, however, in my opinion it is important to clarify already at this stage – and I do not believe that this contradicts what was said in the Qawasmeh case – that the rule must be compensation or repair, and only in exceptional cases will it be justified to refrain from doing so. Ultimately, minimization of the damage that is caused as a result of the demolition to persons who are not connected to the terrorist, whether by way of compensation for the damage caused to their property or whether by some other means such as repairing the damage that was caused, is essential for compliance with the requirement of proportionality. This, as we have said, also applies in a case in which the Respondents acted lawfully and within their area of competence (see and cf.: Public Committee Against Torture [50], at p. 573). Similarly, even when the Military Commander seizes land for a military purpose, he is required to pay compensation (on this see, e.g.: Beit Sourik, at p. 831; HCJ 24/91 Timro v. IDF Commander in the Gaza Strip [53], 335; see also: Eyal Zamir, State Lands in Judea and Samaria – Legal Survey, 12 Mehkerei Yerushalayim le-Heker Yisrael 12 (1985) (Heb.). This is even more essential if the Respondents were negligent in the planning or execution of the demolition. In any case, it is clear that when the owner of an adjacent property can claim negligence on the part of the State, the door is open for an action in torts (see: Cedar, para. 9 per Deputy President E. Rubinstein; Qawasmeh, para. 11 per Justice Y. Danziger; see and cf., regarding damage cause to property inside the property that is the object of the demolition: HCJ 5139/91 Zakik v. IDF Commander in the West Bank [54], 263-264; HCJ 3301/91 Bardaiya v. IDF Commander in the West Bank [55]).

59.       Therefore, in my opinion, we should not intervene in the demolition decision, but we should hold that if damage is caused, the Respondents must repair it or compensate the injured parties who are not family members of the terrorist, subject to their right to apply to a competent court for a declaratory judgment that they are exempt from doing so in the circumstances of the case.

Decision in the petitions concerning the demolition order issued for the home of Rizek (HCJ 7079/15 and HCJ 7082/15)

60.       In the case of Rizek, the partner of Hamed and Kussa, an order was issued in regard to the apartment in which he lived together with members of his family. This was, as will be recalled, an apartment on the second floor of a three-story building.  As aforesaid, two petitions were filed against this order. The first petition (HCJ 7079/15) was filed by members of Rizek’s family, whereas the second petition (HCJ 7082/15) was brought by neighbors and inhabitants of buildings adjacent to the apartment marked for demolition. Similar to Hamed’s case, these petitions also argued that the suspicions against the three persons involved, including Rizek, had not yet been proven, and that the Respondents should have given the Petitioners the evidentiary material on which the order under discussion was based. This argument must be dismissed. As in the case of Hamed, in Rizek’s case, too, the Respondents were in possession of a detailed confession that constitutes a sufficient evidentiary basis for exercising the authority.

61.       In addition, it was argued – based on an opinion submitted by the Petitioners – that demolition of Rizek’s apartment was liable to cause structural damage to the apartments in the building and to adjacent buildings. The Respondents, on their part, insisted upon the method of demolition, explaining that this would be done by means of drilling and blasting inside the apartment and in the walls on the northern and western faces of the building, and by means of breaching charges that would be activated on the north face. All this, in order to prevent damage to the other apartments in the building and the adjacent buildings. The Respondents further declared that it was anticipated that the demolition method described would allow for the destruction only of the external walls (other than the preserved faces) and the interior dividing walls of the apartment, without causing structural damage to the adjacent buildings and to the other floors of the building. As I mentioned in regard to the other petitions, we noted these undertakings of the Respondents, which are appropriate. Therefore, these petitions should be denied.

Decision in the petitions concerning the demolition order issued for the home of Kussa (HCJ 7087/15 and HCJ 7092/15)

62.       In the case of Kussa – Hamed and Rizek’s partner – a forfeiture and demolition order was issued for the apartment in which he lived with members of his family. This is an apartment on the ground floor of a three-story building. Two petitions were filed against this order, too. The first petition (HCJ 7087/15) was filed by Kussa’s wife, who lives in the apartment marked for demolition. Similar to the petitions of the other suspects in the murders of the Henkin couple, this petition, too, argues that the suspicions against the three, including Kussa, are unfounded. Like my rulings in the matter of Hamed and Rizek, here, too, the argument regarding the evidentiary basis should be dismissed, inasmuch as the Respondents had Kussa’s detailed confession to the deed, which constitutes a sufficient evidentiary basis for exercising their authority.

The second petition (HCJ 7092/15) was filed by the suspect’s sister-in-law, who lives on the second floor, and his brother, who lives on the third floor. In this petition, the Petitioners argue that they have a vested right to know how the Respondents intend to carry out the demolition, and if their apartments are expected to be damaged as a result. It is further argued that the Military Commander does not have the authority to employ the sanction of demolition in Area A. The Petitioners therefore asked, inter alia, that we order the Respondents to undertake to refrain from causing any direct harm or damage to the Petitioners’ residence.

63.       These arguments by the Petitioners should be dismissed. First, we should stress that the Respondents cannot be obligated in advance to refrain from causing damage to the building, as this would effectively mean preventing the demolition. Neither have I found substance in the Petitioners’ arguments concerning the authority of the Military Commander in Area A. According to the Israeli-Palestinian Interim Agreement in the West Bank and the Gaza Strip (hereinafter: Interim Agreement), the authority over internal security and public order in Area A were, indeed, transferred to the Palestinian Authority. However, the Agreement also explicitly specified that Israel would continue to carry responsibility for defense against external threats and for the overall security of Israelis in the area of Judea, Samaria and Gaza, and for this purpose it would have “all the powers to take the steps necessary to meet this responsibility” (sec. XII(1) of the Interim Agreement). This means that Israel is authorized to continue operating in Area A when this is required for general security. Therefore, the competence of the Respondents to implement Regulation 119 of the Defence Regulations in this area is consistent with the provisions of the Interim Agreement (see: Qawasmeh, para. 28 per Justice Y. Danziger; see also: Joel Singer, The Israeli-Palestinian Interim Agreement Concerning Self-Government Arrangements in the West Bank and in the Gaza Strip – Several Legal Aspects, 27 Mishpatim 605, 622 (1996) (Heb.)).

64.       Moreover, after the Interim Agreement was signed, the Military Commander issued a special order for the implementation of the Agreement – “Proclamation on Implementation of the Interim Agreement (Judea and Samaria) (no. 7) 5756-1995” (hereinafter: Proclamation). This Court ruled that the Proclamation, and not the Interim Agreement, is the prevailing law in the Area, and the provisions of the Interim Agreement apply only if they were adopted in the Proclamation:

                      […] the Proclamation is the law. It determines who has the authority and what is the authority with respect to a particular matter in any particular area. The Proclamation – and not the Interim Agreement. The Interim Agreement is the historical source of the Proclamation, but it is not its source of validity. Therefore, even if there is a difference between the provisions of the Proclamation and those of the Interim Agreement, and even if they are contradictory, the provisions of the Proclamation prevail. The provisions of the Interim Agreement are part of the law that applies in Judea and Samaria only if they are adopted, and to the extent that they are adopted, by the Proclamation (HCJ 2717/96 Wafa v. Minister of Defence [56], 853).

The Proclamation states, inter alia, that the law that applied in the Area on the day that it entered into force will remain in force as long as it is not repealed, changed or suspended in accordance with its provisions (see: sec. 7 of the Proclamation; HCJ 7607/05 Abdullah (Hussein) v. IDF Commander in the West Bank [57], para. 7, per President A. Barak ). Regulation 119 was not repealed, and it therefore remained in force even after the Proclamation entered into force. The Proclamation further provided that the decision of the Military Commander that certain powers and areas of responsibility remain in his hands is “conclusive and final” (sec. 6 of the Proclamation). From the provisions of the Proclamation it emerges, therefore, that the Military Commander may operate in Area A, particularly when this is required for the sake of maintaining security, as in our case. In view of the aforesaid, this petition, too, must be denied.

Decision in the petition concerning the demolition order issued for the home of Abu Shahin (HCJ 7081/15)

65.       This petition, as will be recalled, concerns the demolition order issued for the house of Abu Shahin, who is accused of the murder of Danny Gonen. The apartment is on the top floor of a three-story building. The Petitioner, a relative of the accused who claims ownership of the apartment marked for demolition, raised several specific arguments: first, the Petitioner argued, on the basis of an engineer’s opinion brought on her behalf, that carrying out the demolition is liable to damage the adjacent apartments in the building. Therefore, the Petitioner asked that we order the Respondents to refrain from carrying out the planned demolition. In addition, the Petitioner argued that there had been administrative delay, in that the power was exercised some four months after the date on which the relevant attack was carried out. Finally, the Petitioner mentioned that the accused and his family only hold the status of lessees in the apartment marked for demolition.

66.       The Respondents argued in response that in view of the fact that the acts of terror had not ceased, the need for general deterrence remained as it had been at the time of perpetration of the attack that was the subject of the order. The Respondents argued that decisions regarding the implementation of Regulation 119 of the Defence Regulations are made in accordance with the particular circumstances of time and place, and there are, therefore, no grounds for intervention in the current order. Regarding the argument about the accused and his family being tenants in the apartment marked for demolition, the Respondents reiterated their position whereby that fact does not constitute a bar to demolition. As for the question of the safety and the manner of demolition of the building, the Respondents noted that due to the location of the apartment within the apartment block, it was decided that demolition would be by way of controlled explosive demolition, and that an engineer would be present during the demolition and would supervise its execution. In the supplementary notice, the Respondents added that various possible alternatives had been examined and found unsuitable.

67.       After examining the arguments of the parties, there are no grounds, in my opinion, for intervening in this case either. The Petitioners argued that there was a delay in issuing the forfeiture and demolition order. In this case, the forfeiture and demolition order that is the subject of this petition was issued – as it states – “because the inhabitant of the house Muhammed Abu Shahin […] murdered Danny Gonen in cold blood by means of pistol fire, and wounded another person […].” Together with this, the exact timing of executing the order derives from the circumstances of time and place, i.e., the recent rise in the number of attacks (see: the decision of the Respondents on the objection of the Petitioner of Oct. 19, 2015)). Therefore, similar to my above ruling in relation to the timing of the issuing of the order in the case of Abdullah, in the present case, too, the decision regarding demolition was made as a direct result of the perpetration of the attack, taking into account the difficult security situation and the need for general deterrence. As I have already mentioned, notice of intention to render forfeit and demolish a house should, as a rule, be given close to the time of the attack (see: Cedar, para. 7 per Deputy President E. Rubinstein). Nevertheless, considering the entire set of circumstances of the matter, including the fact that the information against Abu Shahin was also filed on Aug. 18, 2015, the argument of delay cannot be accepted in this case. Neither can the argument about tenancy be accepted, in my opinion. This case is similar to the circumstances of HCJ 7085/5 which is before us, dealing with an apartment leased from a family member. The present case, as will be recalled, treats of a building that the accused leased from a relative (whether it was the accused’s grandfather, as the Petitioners claim, or his uncle, as the Respondents claim). As I mentioned above, in this case there are no grounds for our intervention.

68.       Regarding the question of safety and the manner of demolition of the building, as will be recalled, the order refers only to the top floor of a three-story building. In the framework of the decision on the Petitioner’s objection, the Respondents explained that the plan for demolition of the apartment was drawn up by qualified engineers, “after carrying out an accurate mapping of the apartment and taking into consideration the engineering features and its location.” This was done “bearing in mind the need to avoid, insofar as possible, damaging neighboring buildings or parts of buildings that are not marked for demolition, i.e. the lower floors of the building.” In addition, the Respondents declared that the demolition would be carried out under the supervision of an engineer, who would ensure that all measures were taken to prevent incidental damage. As I pointed out, these undertakings are justified, and care must be taken to fulfill them. In these circumstances, I am of the opinion that there are no grounds for ruling that the planned demolition is not proportionate.

In Conclusion

69.       If my opinion is accepted, the petitions before us should be denied, except for the petition of the owner of the eight-story building in Kfar Silwad (HCJ 7040/15). That petition is granted, subject to the owner ensuring that the family of the accused leave the apartment by Nov. 17, 2015 at midday. In addition, the Respondents must act in accordance with the principles that we have laid down in the judgment concerning the mode of conduct of the hearing process and its fairness, and concerning the repair of damage that is liable to be caused to third parties as a result of the demolition, or providing compensation for such damage.

70.       Under the circumstances, there will be no order for costs.

 

Justice N. Sohlberg

I concur in both the principles and the particulars of the judgment of my colleague President M. Naor. I would add three marginal comments on the effectiveness of the policy of demolishing homes, on the claim of discrimination between Palestinians and Jews, and on the application of international law.

1.         (a)        On the effectiveness of the policy of demolishing homes: As is well known, this Court’s conception of the exercise of authority under Regulation 119 is that it is underpinned by a deterrent purpose – and not a punitive one. As a consequence of this conception, it must be assumed that implementation of the Regulation indeed deters potential assailants, thus saving human life. However, deterrence, by its nature, is not something that can easily be quantified, if at all. In the past, the prevalent view on this Court was that it is not possible to prove this matter definitively, and therefore the State was not required to establish a factual basis in order to exercise the authority. Justice E. Goldberg ruled as follows in HCJ 2006/97 Ghanimat v. GOC Central Command [46], 655:

                      No scientific research has been conducted, nor can be conducted, to prove how many attacks have been prevented and how many souls saved as a result of the deterrent activities of sealing houses and demolishing them. From my point of view, however, in order for me not to intervene in the discretion of the Military Commander it is sufficient that the view that there is a certain degree of deterrence cannot be discounted.

In this spirit, several judgments held that the State cannot be expected to prove the effectiveness of the demolition of homes as a deterrent in a scientific, empirical fashion – as the Petitioners ask – and the professional position of the relevant security agencies that it is capable of deterring is sufficient in order for this Court not to intervene in its discretion (see: Abu Dahim, para. 11; Awadeh, para. 24; Qawasmeh, para 25).

            (b)       Recently, doubts have again arisen, both in this Court and in the legal literature, concerning the correctness of this approach. According to one argument, since this is an extreme sanction that seriously infringes the fundamental rights of those who were not actually involved in terrorist acts, it may be applied only when it is based on a firm factual foundation, in accordance with the standard requirements of administrative law. And since the burden of proof in this matter falls on the governmental authority, and this authority is not able to raise this burden, it must completely refrain from exercising the authority (see Amihai Cohen and Tal Mimran, Cost Without Benefit in the Policy of Home Demolitions: In the Wake of HCJ 4597/14 Muhammed Hassan Halil Awawdeh v. Military Commander in the West Bank, Hamishpat Online 1,3,5,14 (2014) (Heb.)).

            (c)        This argument cannot be accepted. An authority must often make difficult decisions, even when there is uncertainty about all their ramifications. In many situations, these matters are not amenable to scientific proof, and they rely on the wisdom and professional discretion of the competent authorities. Should one take away this power, one is – in practice – neutralizing the ability of the state authorities to confront new challenges (cf. Yoav Dotan, Two Concepts of Reasonableness, Shamgar Volume – Articles, pt. 1, 417, 461 (2003) (Heb.)). This applies in general, and it also applies, unfortunately, when basic human rights and human life are placed on the opposite sides of the scales.

In this context, the words of my colleague Justice H. Melcer, addressing the precautionary principle, are apt:

… the precautionary principle was designed to deal with the difficulty of the gap between the existing knowledge at a given time and the enormous and uncertain potential harm that was liable to be caused by an activity, if appropriate precautionary measures were not adopted in relation to that activity. From the outset, the principle allows the authority (the legislature or the executive) to adopt measures designed to prevent the catastrophe when a significant threat of irreversible, wide-spread damage exists, even if the probability is low and even when there is no proven scientific certainty that the damage will indeed eventuate. (HCJ 466/07 MK Zehava Gal-On, Meretz-Yahad v. Attorney General [58]).

This is applicable to the present case as well.

            (d)       In the circumstances of the present case, I agree with the President’s assessment regarding the collection of confidential material that was shown to us – the work of experienced professionals, who are well acquainted with the trends of the society in which the terrorists move – which provides reassurance that fear of damage to the homes of relatives of the terrorists creates deterrence among potential terrorists.

            (e)        Questions about the effectiveness of the measure of demolition as a means of deterrence have also been raised in this Court (see: Cedar, para. 3, per Justice U. Vogelman, and the opposing comments of Justice Y. Amit; HaMoked Defence Center, para. 6, per Justice E. Hayut and paras. 5-14 of my opinion). These judgments noted, based on an examination of the research on this subject, how difficult it is to measure the effectiveness of deterrence. However, when we are dealing with a measure that entails extreme harm to the most basic of property rights – a person’s home – this Court has stressed the need for follow-up, for collecting and processing data that relates to the demolition of terrorists’ homes and its consequences (“another ‘measured step’”, in the words of my colleague the President in para. 6 of her decision handed down today in HCJFH HaMoked Defence Center, relying on the words of Deputy President E. Rubinstein and Justice E. Hayut in the HaMoked Defence Center case). At the same time, mention must be made of the true, genuine difficulty of the professional bodies in basing their expert position on empirical grounds. A study of the sparse academic literature on this subject (on which I elaborated in the HaMoked Defence Center case) shows that such an analysis might yield real operative conclusions only if it is done from a long-term perspective, using tools from the statistical-empirical field of research. Academic research that examines terror from the perspective of various disciplines reveals the difficulty involved in collecting data that proves or disproves deterrence, as well as the difficulty in isolating the effect of a specific aspect – such as the use of house demolitions – from an array of aspects of counter-terrorism. Needless to say, this does not detract from the state’s duty  to collect data and analyze it to the best of its ability, and also to review its policy on this subject in light of this data. However, it cannot be asked to carry out comprehensive academic research, as the Petitioners demand. In addition, the establishing of a factual basis can certainly not be expected solely on the basis of the relatively few demolitions that were carried out in the short time since the judgment in the HaMoked Defence Center case was handed down.

            (f)        However, since the argument of the factual foundation was raised here, we will mention that from a review of the academic research dealing directly with this subject, it is evident that the position that regards house demolitions as a deterrent is well grounded. In the HaMoked Defence Center case, I referred to the research of Efraim Benmelech, Esteban F. Flor and Claude Berrebi, Counter-Suicide-Terrorism: Evidence from House Demolitions, which was published in an academic journal (77 J. of Politics 27-43 (2015)) after that judgment was handed down. This research is limited to the effect of house demolitions on attempted suicide attacks during the period of the Second Intifada. The study reveals a clear effect, from a statistical perspective, of a decline in the number of attempted suicide attacks in the geographical areas in which demolitions were carried out, for a short period of approximately one month, until the deterrent effect dissipated. It would appear that no empirical statistical study not based on assumptions and conjecture alone but on the analysis of the data has been conducted that arrives at conclusions that are contrary to this recent research (and see, in greater detail, what I wrote in the HaMoked Defence Center case, paras. 5-14; and Justice Hayut, ibid., para. 5).  Even if the deterrent effect of house demolitions is limited from the perspective of time and place, it is sufficient that we are saving one life by virtue of the demolition in order for the demolition to be worthwhile, despite the suffering that it involves for the relatives of the terrorist.

            (g)       Moreover, the deterrence is not designed to act solely on the terrorist’s mindset, but also to dissuade the potential terrorist from carrying out his plan by means of the intervention of his relatives: “In traditional Palestinian society, the family holds a central place in the life of the suicide bomber and makes a decisive contribution to shaping his personality and the degree of his willingness to sacrificing his life in the name of his religion or on behalf his people” (Emanuel Gross, The Struggle of a Democracy against the Terror of Suicide Bombers – Is the Free World Equipped with Moral and Legal Tools for this Struggle? Dalia Dorner Volume 219, 246 (2009) (Heb.) [English: The Struggle of a Democracy against the Terror of Suicide Bombers: Ideological and Legal Aspects, 22 Wisconson Int. L.J. 595, 636]).  Gross demonstrates and points out there that the support of family, and its public manifestation, help the terrorist organization: “they expand the circle of supporters of the organization among the Palestinian population, and thus increase their ability to enlist additional suicide bombers in the future..” The deterrence helps to neutralize the family element in promoting terrorism, and to motivate the family unit to act to limit it. Concern about demolition of its home is intended to recruit the family of the potential terrorist to use its influence in the desired direction, to dissuade it from putting a close circle of support at the potential terrorist’s disposal, and thus to deflect him from getting involved in terror or carrying it out. For good reason, in the framework of this decision we granted the petition in HCJ 7040/15 to prevent the demolition of a house owned by an uninvolved third party, an owner who has no familial or other connection to the person accused of murder in one of the attacks, nor with his family who lived in the apartment, other than the lessor-lessee connection by virtue of a contract with the mother. This differed from the other petitions, which we decided to deny, in which the family connection was present. Deterrence contributes – so we were convinced – even if only a little. This little bit of deterrence, in our time and place, is liable to be a decisive factor between good and evil.

2.         On the claim of discrimination between Palestinians and Jews: This claim must be dismissed, as stated by the President in para. 30 of her opinion. The reason that Regulation 119 has not been used in relation to Jews lies in the fact that in the Jewish sector, there is no need for that societal deterrence that is the purpose of the demolitions. The Jewish public, in general, is deterred and steadfast, and is not incited. True, it is undeniable that there are attacks by Jews against Arabs. The enforcement authorities, and the courts, are certainly required to apply the full force of the criminal law in these cases as well. This applies to the shocking murder of Muhammed Abu Hadid, not to mention the horrific murder of the Dawabsheh family, the full details of which are unknown. But the difference is greater than the similarity in many aspects, and mainly, in our context, in relation to the surroundings: decisive, assertive censure across the board in the Jewish sector – which is not the case on the other side.

3.         (a)        On the application of international law: It is only fitting to mention that international law, in its classical sense, deals with inter-state relations in times of war. The way in which the State of Israel, as well as other states in the Western world, deal with the phenomenon of terror raises legal and moral questions for which it is hard to find solutions in the classical treaties of international law (and see: Hilly Moodrick-Even Khen, Terror and International Humanitarian Law, 16 (2010)). As Justice Hayut wrote in the HaMoked Defence Center case:

                      However, it seems that in the area of counterterrorism, both international law and domestic Israeli law have yet to catch up with reality, and have yet to establish a comprehensive, detailed code of legal measures that a state may employ in fulfillment of its aforesaid obligation to protect itself and its citizens. Needless to say, this area desperately requires regulation. since the known law by which the nations of the world act is largely adapted to the traditional, familiar model of war between armies, whereas the new, horrific reality created by terrorist organizations and individuals who carry out terror attacks in Israel and around the world, disregards territorial borders and draws no distinction between times of war and times of peace. Thus, any time is the right time to spread destruction, violence and fear, usually without discriminating between soldiers and civilians. In fact, terrorism does not respect any of the rules of the game established by the old world in the laws of war, and this reality also requires that  jurists, and not only the security forces, rethink the subject in order to update these laws and adapt them to the new reality. (ibid., para.2).

Indeed,  when acts of terror do not distinguish between a soldier and a citizen and between a time of war and a time of peace; when every person, at the front or behind the lines, is a target; when every instrument can become an effective weapon, and sadly, the assailants turn their plowshares into swords and their pruning-hooks into spears (cf.: Isaiah 2:4; 54:17) – the expectation that the state will continue to adhere to dichotomous distinctions created by international law is liable to tie its hands in its war on terror, and threaten the security of its citizens (and see: Moodrick-Even Khen, p. 109ff.).

            (b)       The situation at present directly impacts on the interpretation of international law. We cannot interpret the international treaties that the State of Israel has ratified in dissociation from the concrete aspect of the war on terror in which we unfortunately find ourselves, and without taking into consideration the moral dilemmas that are unique to it on the one hand, and the security needs to which it gives rise on the other. This matter, too, was discussed in the HaMoked Defence Center case, where Deputy President E. Rubinstein wrote as follows (para. 22):

                      … the 1949 Geneva Conventions, and the preceding 1907 Hague Regulations, were designed and signed at a period that is different to our own. The terrorism with which the world must contend, the State of Israel being no exception, presents complicated challenges since the terrorist organizations do not abide by these or other conventions …  the humanitarian provisions of the Hague Convention (IV), which were assumed by Israel despite the fact that it did not recognize the application of the Convention from a legal perspective …. are to be construed in a manner that will preserve their spirit and realize their underlying purposes, while concurrently permitting the State of Israel to protect the security of its residents in the most basic sense of the word.

I can only concur in these words, and hope that the sages and scholars of international law will continue to develop the jurisprudential aspects that are unique to the situation of combat between sovereign states and terrorist organizations, and regulate this area by striking a suitable balance between humanitarian protection of human rights on the one hand, and maintaining the capability of states to fight the terrorist organizations effectively, on the other hand.

 

Justice H. Melcer

1.         I concur in the comprehensive, well-considered and (factually and legally) precise judgment of my colleague President M. Naor. I also agree with the incisive comments of my colleague Justice N. Sohlberg.

I will, nevertheless, permit myself a few comments in order to clarify my position.

2.         The subject of forfeiture and demolition of property under Regulation 119 of the Defence Regulations is within the competence and the discretion of the Military Commander. In these matters, he consults with the Israel Security Agency, and he is subject – from the point of view of domestic constitutional law – to the authority of the political echelons under the provisions of Basic Law: The Army. Hence, responsibility for implementation of the Regulation, or for its non-implementation, lies wholly with the above actors, and this Court’s review of them is legal only.

3.         Regulation 119 in its present formulation was enacted (in its English version) and introduced into the law of our State and the law of the Judea and Samaria region during the British Mandate, pursuant to Article 6 of the Palestine (Defence) Order-in-Council 1937, and it has remained in force to this day. For a review of the sources of the Regulation and its history, see: Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Yale Journal of International Law 1, 9-8. 15-18 (1994) (hereinafter: Simon).

It emerges that during the Mandate period, recourse to the Regulation (and to what preceded it) was relatively frequent, when the need arose in times of terror attacks and activity (see: Simon, ibid.; Brigadier General Uri Shoham, The Principle of Legality and the Israeli Military Government in the Territories, 153 Military Law Review 253, 259-260 (Summer, 1996) (now our colleague, Justice U. Shoham).

After the Establishment of the State of Israel and until 1979, forfeiture and demolition orders, insofar as they were issued under the Regulation, were not reviewed by this Court. Things began to change, in the sense of judicial review of the orders, in 1979, with the rendering of the judgment in HCJ 434/79 Sahwill v. Commander of the Judea and Samaria Region [57], and this change contributed to an understanding on the part of the international community of the need to use this measure in exceptional cases. Nevertheless, doubts have arisen over the years with respect to the effectiveness of the deterrence achieved by this measure, and there has been growing criticism in Israel and abroad against the demolition of homes in reaction to acts of terror (some of the articles that have been published on this subject were cited in the opinion of my colleague the President, and of my colleague Justice Sohlberg, and see also: Simon).

4.         Over time, and particularly in light of the aforesaid at the end of para. 3, administrative law was applied to this area, and the IDF, too, initiated a study of the subject by means of the Shani Committee. Following the study, the practice of implementing Regulation 119 was stopped for a number of years, and the possibility of resorting to it remained in force only for extremely exceptional cases and situations, which unfortunately exist at present.

At the same time, this Court – bearing in mind the developments in Israeli public law and in international law (which has not yet specifically addressed the subject in cases such as those that are confronting us) – has seen fit to limit the possibility of implementing Regulation 119 on three principal planes:

            (a)        Application of the rules of administrative law to the process, as aforesaid.

            (b)       Limiting the grounds for forfeiture and demolition of homes to the homes of the terrorist who perpetrated the terror attack, and of his family (therefore, inter alia, we granted the petition of the owner of the building who, beyond leasing out the apartment to the assailant and his family, with no awareness of the intentions of the terrorist, was not involved in any other way in the attack).

Moreover, Justice E. Hayut emphasized in the HaMoked Defence Center case that in her view, if the terrorist’s family members whose home is about to be demolished succeed in convincing the authorities, with sufficient administrative evidence, that prior to the perpetration of the attack, they tried to dissuade the assailant from doing so, then this fact ought to be accorded extremely significant weight that may, in relevant cases, overturn the decision to destroy the home of those relatives. I accept this approach.

            (c)        Adding the remedy of compensation for uninvolved, innocent victims, insofar as harm is caused to them as a result of carrying out the demolition and under the conditions enumerated in the judgment of the President.

5.         In view of the aforesaid at the end of para. 4(b), during the hearing I repeatedly asked counsel for the Petitioners who were family members if they had attempted to dissuade the assailant before he carried out his plans. Their answer was that they did not know of his plans, and therefore they could not dissuade him. I therefore persisted and asked if, in retrospect, the relatives condemn acts such as these (which is likely to contribute to deterrence), but this question remained hanging in the air, and even in their subsequent written responses, they did not address this matter, which begs an explanation.

6.         Counsel for the Petitioners argued, inter alia, that their clients were not given a proper opportunity to express their arguments in the framework of the rules of administrative law that apply here, as stated in para. 4(a) above, for on the one hand, the Respondents delayed the issuing of the orders for many months after the terrorist acts that are the subject of the petition (so that deterrence is not relevant, even according to the Respondents), and on the other hand they were given only 48 hours (including Friday and Saturday) to submit their written response to the Military Commander. Moreover, they contended that the argument of deterrence is groundless, for in the past, judgments that denied petitions concerning demolition of homes were not carried out for several months.

We therefore asked the State Attorney’s Department to submit to us details of the petitions that were denied in these contexts, their causes, the dates of the judgments and of the execution of the demolitions (if at all).

From the table submitted by the Department, we indeed see that sometimes, for political and security reasons, including operational situation assessments, there were delays in carrying out the demolition orders in relation to which the petitions were denied, and one order has not yet been carried out. Moreover, there was a delay even in issuing the orders that are the subjects of the petitions. Therefore, limiting the time of the hearing to 48 hours (which included Friday and Saturday) was indeed not the right thing to do, and as a result of the haste, there were also errors in the formulation of the orders, as described in the opinion of the President. Moreover, in the recent Abu Jamal case, there was even a mistake in identifying the house that was marked for demolition, and were it not for the process of judicial review before this Court, there would have been an irreversible error in that case.

This flaw of excessive limitation relating to the time of the hearing was, in fact, corrected in the circumstances, for counsel for the Petitioners succeeded, at the end of the day, in submitting their arguments, and extensive hearings were also held in this Court. However, in future, the directives of the President in this context, as formulated in her opinion, must be followed strictly.

7.         As for the arguments of discrimination in relation to use of Regulation 119 in regard to Jews as opposed to Palestinians, I would comment that beyond raising the argument, data to support the argument of such discrimination was not submitted to us. However, I would like to note that if we should, Heaven forbid, reach a situation that would also require such deterrence vis-à-vis the families of Jewish terrorists or of minorities who are residents of Israel – in principle, they should be subject to the same law.

8.         Finally, I find it appropriate to recall the moving, emotional words spoken in the course of the hearing by the mother of Danny Gonen, Mrs. Deborah Gonen, and by the father of Malakhi Rosenfeld, Mr. Eliezer Rosenfeld. Beyond a description of their loved ones who were murdered, cut down in the prime of their lives, and beyond the illustration of the heavy loss suffered by their families and the Jewish people, they sought to support the orders that were issued by the Military Commander, not for reasons of revenge, but for the purpose of deterrence – so that others would not be harmed like their children and they were.

In this context I find it appropriate to express the hope, alongside sincere condolences extended to them and to other families of victims, that their said wish will be realized, that innocents will no longer be harmed, and that we return to the days and the situation in which deterrence will no longer be necessary.

 

Decided in accordance with the opinion of President M. Naor

 

Decided this 30^th day of Heshvan 5776 (Nov. 12, 2015).

(Corrected this 3^rd day of Kislev 5776 (Nov. 15, 2015)).

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 5870/14

 

Before:                                    The Honorable Deputy President E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice U. Vogelman

           

 

The Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                    versus

 

The Respondent:

 

                                    The Courts’ Administration

                                   

                                    A petition for Order Nisi

 

Date of session:           11 Av 5775; July 27, 2015

 

Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

                                    On behalf of the Petitioner

 

                                    Adv. Avi Milikovski

                                    On behalf of the Respondent

 

Adv. Avner Pinchuk

                                    On behalf of the Association for Civil Rights in Israel

 

Adv. Assaf Pink

                                    On behalf of the Association for Digital Rights in Israel

 

 

 

Judgment

Deputy President E. Rubinstein

 

1. This is a Petition challenging the decision by the Courts’ Administration (hereinafter: the Respondent), which requires signing a “Letter of Commitment” in order to gain access to its database of judgments and decisions. The “Letter of Commitment” includes, among others, a prohibition against indexing the information in a manner that would allow finding it on internet search engines such as Google and Bing. 

 

Background and Prior Proceedings

 

2. The Petitioner is a commercial company, whose primary business is operating internet websites which provide the public with information for a fee. The relevant websites for our purposes are “Takdin” and “Takdin Light” (how nice it would be had “Light” would have been given a Hebrew term) where judgments and other decisions (hereinafter, for the sake of convenience: judgments) of various courts may be found. The two websites contain a similarly database of judgments which are “pulled” from the Respondent’s judgments database, but are distinguishable by the business model upon which they rely.

Access to Takdin is conditioned upon a subscription fee of about NIS 2,000 a year, whereas Takdin Light allows the purchase of a digital copy of a single judgment for NIS 26. Even prior to the purchase and without commitment, any person may use Takdin Light in order to locate a particular judgment and read its first 2,500 characters. The different business models led the Petitioner to decide to permit the indexing of Takdin Light, as opposed to Takdin. Indexing is a process that enables finding the website, or parts of it, through web search engines. In other words, when we search through a web search engine a name of person mentioned in a judgment, we will receive as a result a hit that refers to the judgment in Takdin Light, but not a hit that refers to Takdin. It should be noted that according to the Petitioner, 94% of the visitors to Takdin Light arrive at the site through the web search engines. A person whose name appears in the judgment published on Takdin Light may approach the Petitioner and the latter would immediately remove the document from the free site. However, for several weeks later the judgment will still appear as a hit on web search engines. The Petitioner offers quick removal from the web search engines as well for a fee of NIS 50, which is intended – according to the Petitioner – to cover its costs of reaching out to the web search engines.

 

3. On April 28, 2008 the Petitioner signed, per the Respondent’s demand, a letter of commitment whereby it obligated to post only documents that may be published subject to any law, and to not bring any civil claims against the courts’ administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013 the Respondent reached out the Petitioner and required, in order to continue the Petitioner’s access to the judgments database run by the court’s administration, the signing of an updated letter of commitment. Section 10 of the updated Letter of Commitment states that “I am aware that granting access to the information in my possession through open web search engines, such as the ‘Google’ web engine and others, may in itself constitute violation of privacy or constitute an unlawful publication, and thus I commit to take all necessary steps in order to prevent indexation of decisions and judgments passed through it in these web search engines.”

 

4. Following the letter, two meetings between the Petitioner’s representative and the legal counsels of the courts’ administration and the Ministry of Justice’s Information and Technology Authority (hereinafter: ITA), which ended with the Petitioner being requested to submit technical information as to its activity. The information was provided by the Petitioner on May 16, 2013. On November 5, 2013 the Respondent notified the Petitioner that to the extent that it does not prevent indexation of the information it “pulls” from the Courts’ Administration’ judgments database, its access to the database would be blocked beginning on January 1, 2014. The Petitioner was granted a period of 14 days to submit its written objection. At the Petitioner’s request, it was given an additional 21 days to submit its written response, which it submitted on December 17, 2013. On January 28, 2014 a meeting was held in the Respondent’s offices, during which the Petitioner was given the opportunity to supplement its arguments orally. On June 15, 2014 the Respondent notified the Petitioner that in the absence of signing the updated Letter of Commitment, access to the Courts’ Administration judgments databases would be blocked. On August 18, 2014, after several delays from the Respondents and several requests by the Petitioner to receive reasons for the decision, an email was sent from the Courts’ Administration, which said that a company that fails to sign the updated Letter of Commitment by September 8, 2014 would be disconnected from the judgments database. An explanatory letter from the Respondent’s legal counsel was attached to the email. It should be noted that the opinion by the ITA, which served the Respondent in making its decision, was not provided to the Petitioner, despite its request for it. On September 1, 2014 this petition was submitted against the Respondent. The Respondent’s attorney has consented to delay the effect of the decision dated August 18, 2014 until our decision in this petition. In the absence of a written response by the State Attorneys Organization, for organizational steps, it was agreed during a hearing from March 4, 2015 that the hearing be postponed and that postponed hearing be conducted as if an order nisi had been granted. We shall further note, that a class action suit submitted against the Petitioner is pending in the Tel Aviv Yaffo District Court (before Deputy President I. Inbar) in Class Action 34134-01-12. The suit was filed by people who claim that their privacy was violated due to the publication of their names on the website. Under the decision of the District Court from June 16, 2015, the adjudication of that case will continue after a decision is handed down in the petition before us here.

 

The Petitioner’s Claims

5. The Petitioner’s arguments attack the decision by the Respondent on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is section 70 of the Courts Law [Consolidated Version], 5744-1984 (hereinafter: “The Courts Law”), which sets publishing of judgments as a rule and confidentiality as the exception. To the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of the authorization is particular serious, so it was argued, because we are concerned with primary legislation that infringes both the principle of a public hearing and the rights of the Petitioner – the right to free occupation, the right to property and the principle of equality. According the Petitioner, the decision was made by the Courts’ Manager, who is not authorized to do so. It was maintained that the Courts’ Manager fills a managerial role that is not necessarily held by a judge, and whose responsibility is limited to executing administrative arrangements set by the Minster of Justice under section 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 18, 2014 – is not within the Courts’ Manager’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in section 83(a)(2) of the Courts Law, which stipulates that “the Minister of Justice may enact in regulations – […] publishing courts’ judgments.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegates to the Courts’ Managers, such as hearing cases during recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters relating to publishing identifying details in courts’ judgments and decisions (hereinafter: Justice Englard Committee), and this still sits in consideration. The appointment of the committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate the authority to regulate this issue to the Courts’ Manager.

 

6. As to the procedure by which the decision was made, it was argued this was made with a number of flaws. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes upon its right to make arguments as part of a proper administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a matter of mere formality, in a manner that does not substantively uphold the right to make arguments. Finally, that Petitioner maintains that the reasons given by the Respondent does not address the arguments raised during the hearing, and does not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not meet – substantively – the duty imposed on any administrative authority to give reasons.

 

7. On the discretion level, the Petitioner has several arguments. First, it claimed that the decision was made for an unworthy purpose. This is so because the general public, as opposed to individual people, has no right to privacy. One’s right to privacy is considered by the court upon the submission of a motion to make a case confidential and there is no place – according to the Petitioner – to provide additional protection to the general public, at the expense of other values such as a public hearing. It was secondly argued, that the current state of the law grants paramount status to the principle of a public hearing, which prevails the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725- 1965. Thirdly, it was maintained that the decision by the Respondent violates the principle of equality because the meaning of the decision is limiting the access to judgments only to professional jurists, rather than the general public. In the Petitioner’s approach, this harms the group of unrepresented adjudicating parties who rely on themselves for legal representation. Fourth, it was argued that the decision is an infringement of the Petitioner’s freedom of occupation, as the operation of Takdin Light constitutes a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive mean, such as instructing the courts to reduce the publication of personal details which are not necessary for the decision.

 

The Respondent’s Arguments

8. According to the Respondent, the principle of a public hearing does not require making court judgments accessible through web search engines, and in any event limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions on using the Courts’ Administration judgments database were already included in the Letter of Commitment from 2008, as to which the Petitioner makes not claim of lack of authority. It was also argued that the Respondent is subject to the Privacy Protection Law, 5741-1981 by virtue of it being an “administrator of a database” as defined by section 7 of that Law.

 

9. As for the process of making the decision, the Respondent argues there was no flaw to it. The Petitioner was granted the right to make arguments both in writing and orally, given several extensions, and it was agreed to postpone the date the decision would come into effect. The Respondent claims that an administrative authority is under no duty to accept the arguments raised at a hearing and thus the lack in a change in its position does not reveal any flaw in the hearing process. Additionally, the Respondent’s letter from August 18, 2014 includes detailed reasons that were the basis for the decision, so that the duty to give reasons was also flawless.

 

10. On the discretion level, the Respondent notes the harm caused to the privacy of litigating parties as a result of posting their names on web search engines – a harm that is distinguishable from the publishing of their names in “closed” legal databases such as Takdin, which are used primarily by jurists for professional needs. It was also noted that exposing the names of parties on web search engines creates a “chilling effect” that discourages people from turning to courts in a way that harms the right to access courts. The Respondent argues that this harm is primarily acute in labor courts, when employees who approach the courts fear that the publishing of their names may harm their chances of finding future job. It was therefore argued that reversing the Respondent’s decision is that which would infringe the right to access courts, not the other way around. In this context, we recall the Petitioner’s response claiming that it is unclear which factual data the Respondent’s arguments rely, as the number of those approaching courts increases each year. It was emphasized that preventing publication of judgments in the w