Customary humanitarian law

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

Before President D. Beinisch and Justices E.E. Levy, A. Procaccia

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

[2]        HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

[5]         HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[6]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[7]        HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[8]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

[11]      HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

[24]      CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[25]      HCJ 1661/05 Gaza Coast Regional Council v. Knesset [2005] IsrSC 59(2) 481.

[26]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[27]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

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

[29]      HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

[31]      EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [1985] IsrSC 39(2) 225;  IsrSJ 8 83.

[32]      CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[35]      HCJ 2967/00 Arad v. Knesset [2000] IsrSC 54(2) 188.

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

[38]      HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

[44]      HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801.

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

[52]      HCJ 6302/92 Rumhiah v. Israel Police [1993] IsrSC 47(1) 209.

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

'... the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.'

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein. '

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought before it from the viewpoint of the prisoner, who has not seen the material and cannot argue against it. In the words of Justice A. Procaccia: "… the court has a special duty to act with great care when examining privileged material and to act as the 'mouth' of the prisoner where he has not seen the material against him and cannot defend himself" (HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria [47], at para. 6; see also CrimApp 3514/97 A v. State of Israel [48]).

Thus we see that in view of the reliance on administrative evidence and the admission of privileged evidence ex parte, the court conducting a judicial review under the Internment of Unlawful Combatants Law is required to act with caution and precision in examining the material brought before it. The scope of the judicial review cannot be defined ab initio and it is subject to the discretion of the judge, who will take into account the circumstances of each case on its merits, such as the quantity, level and quality of the privileged material brought before him for his inspection, as opposed to the activity attributed to the prisoner that gives rise to the allegation that he represents a threat to state security. In a similar context the following was held:

'Information relating to several incidents is not the same as information concerning an isolated incident; information from one source is not the same as information from several sources; and information that is entirely based on the statements of agents and informers only is not the same as information that is also supported or corroborated by documents submitted by the security or intelligence services that derive from employing special measures' (per Justice E. Mazza in HCJ 5994/03 Sadar v. IDF Commander in West Bank [49], at para.  6).

Considering all the aforesaid reasons, the requisite conclusion is that reliance on inadmissible evidence and privileged evidentiary material is an essential part of administrative detention. In view of the fact that the quality and quantity of the administrative evidence that supports the cause of detention is subject to judicial review, and in view of the caution with which the court is required to examine the privileged material brought before it ex parte, it cannot be said that the arrangement prescribed in s. 5(e) of the Law, per se, violates the rights of prisoners disproportionately.

(5)     Prisoner's meeting with his lawyer

44. S. 6 of the Law, which is entitled "Right of prisoner to meet with lawyer"' provides the following:

'6. (a) The internee may meet with a lawyer at the

earliest possible date on which such a meeting may be held without harming state security requirements, but no later than seven days prior to his being brought before a judge of the District Court, in accordance with the provisions of s. 5(a).

(b) The Minister of Justice may, by order, confine the right of representation in the proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to the provisions of s. 318(c) of the Military Justice Law, 5715-1955.'

The appellants raised two main arguments against the proportionality of the arrangements prescribed in the aforesaid s. 6: first, it was argued that under s. 6(a) of the Law, it is possible to prevent a meeting of a prisoner with his lawyer for a period of up to seven days, during which a hearing is supposed to be conducted for the prisoner under s. 3(c) of the Law. It is argued that conducting a hearing without allowing the prisoner to consult a lawyer first is likely to render the hearing meaningless in a manner that constitutes an excessive violation of the right to personal liberty. Secondly, it was argued that s. 6(b) of the Law, which makes representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel, also violates the rights of the prisoner disproportionately.

Regarding the appellants' first argument: no one disputes that the right of the prisoner to be represented by a lawyer constitutes a major basic right that has been recognized in our legal system since its earliest days (see in this regard CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [50], at para. 14, and the references cited there). According to both the basic principles of Israeli law and the principles of international law, the rule is that a prisoner should be allowed to meet with his lawyer as a part of the right of every human being to personal liberty (see the remarks of President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 380-381). Therefore, s. 6(a) of the Law provides that a prisoner should be allowed to meet with his lawyer "at the earliest possible date." It should, however, be recalled that like all human rights, the right to legal counsel, too, is not absolute, and it may be restricted if this is essential for protecting the security of the state (see HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [51], at p. 849; HCJ 6302/92 Rumhiah v. Israel Police [52], at pp. 212-213). As such, s. 6(a) of the Law provides that the meeting of the prisoner with his lawyer may be postponed for security reasons, but no more than seven days may elapse before he is brought before a District Court judge pursuant to s. 5(a) of the Law. Since pursuant to the aforementioned s. 5(a) a prisoner must be brought before a District Court judge no later than fourteen days from the date on which the internment order is granted, this means that a meeting between a prisoner and his lawyer may not be prevented for more than seven days from the time the detention order is granted against him.

Bearing in mind the security purpose of the Internment of Unlawful Combatants Law and in view of the fact that the aforesaid Law was intended to apply in prolonged states of hostilities and even in circumstances where the army is fighting in a territory that is not under Israeli control, it cannot be said that a maximum period of seven days during which a meeting of a prisoner with a lawyer may be prevented when security needs so require falls outside the zone of proportionality (see and cf. Marab v. IDF Commander in Judaea and Samaria [8], where it was held that "[a]s long as the hostilities continue, there is no basis for allowing a prisoner to meet with a lawyer," (at p. 381); see also HCJ 2901/02 Centre for Defence of the Individual v. IDF Commander in West Bank [53]).

In addition to the above, two further points should be made: first, even though the prisoner may be asked to make his submissions in the course of the hearing under s. 3(c) of the Law without having first consulted a lawyer, s. 6(a) of the Law provides that the state should allow the prisoner to meet with his defence counsel "no later than seven days prior to his being brought before a judge of the District Court…." It follows that as a rule, the prisoner is represented in the process of judicial review of the granting of the detention by virtue of the Law. It seems that this could reduce the impact of the violation of the right to consult a lawyer as a part of the right to personal liberty. Secondly, it should be emphasized that the maximum period of seven days does not exempt the state from its obligation to allow the prisoner to meet with his lawyer at the earliest possible opportunity, in circumstances where security needs permit this. Therefore the question of the proportionality of the period during which a meeting between the prisoner and his defence counsel is prevented is a function of the circumstances of each case on its merits. It should be noted that a similar arrangement exists in international law, which determines the period of time during which a meeting with a lawyer may be prevented with regard to all the circumstances of the case, without stipulating maximum times for preventing the meeting (see in this regard, Marab v. IDF Commander in Judaea and Samaria [8], at p. 381).

45.  The appellants' second argument concerning s. 6(b) of the Law should also be rejected. Making representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel under the provisions of s. 318(c) of the Military Justice Law, 5715-1955, is necessary for security reasons, in view of the security-sensitive nature of administrative detention proceedings. The appellants did not argue that the need for an unrestricted authorization as aforesaid affected the quality of the representation that they received, and in any case they did not point to any real violation of their rights in this regard. Consequently the appellants' arguments against the proportionality of the arrangement prescribed in s. 6 of the Law should be rejected.

 (6)      The length of internment under the Law

46.       From the provisions of ss. 3, 7 and 8 of the Internment of Unlawful Combatants Law it emerges that an internment order under the Law need not include a defined date for the end of the internment. The Law itself does not prescribe a maximum period of time for the internment imposed thereunder, apart from the determination that it should not continue after the hostile acts of the force to which the prisoner belongs against the State of Israel "have ceased" (see ss. 7 and 8 of the Law). According to the appellants, this is an improper internment without any time limit, which disproportionately violates the constitutional right to personal liberty. In reply, the state argues that the length of the internment is not "unlimited", but depends on the duration of the hostilities being carried out against the security of the State of Israel by the force to which the prisoner belongs.

It should be said at the outset that issuing an internment order that does not include a specific time limit for its termination does indeed raise a significant difficulty, especially in the circumstances that we are addressing, where the "hostile acts" of the various terrorist organizations, including the Hezbollah organization which is relevant to the appellants' cases, have continued for many years, and naturally it is impossible to know when they will cease. In this reality, prisoners under the Internment of Unlawful Combatants Law may remain in detention for prolonged periods of time. Nevertheless, as we shall explain immediately, the purpose of the Law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be issued without a defined date for their termination does not depart from the zone of proportionality, especially in view of the judicial review arrangements prescribed in the Law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent "unlawful combatants" as defined in s. 2 of the Law from returning to the cycle of hostilities, as long as the hostile acts are continuing and threatening the security of the citizens and residents of the State of Israel. On the basis of a similar rationale, the Third Geneva Convention allows prisoners of war to be interned until the hostilities have ceased, in order to prevent them from returning to the cycle of hostilities as long as the fighting continues. Even in the case of civilians who are detained during an armed conflict, the rule under international humanitarian law is that they should be released from detention immediately after the concrete cause for the detention no longer exists and no later than the date of cessation of the hostilities (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518-519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war).

The conclusion that emerges in view of the aforesaid is that the fundamental arrangement that allows a internment order to be granted under the Law without a defined termination date, except for the determination that the internment will not continue after the hostile acts against the State of Israel have ended, does not exceed the bounds of the room for constitutional maneuver. It should, however, be emphasized that the question of the proportionality of the duration of internment under the Law should be examined in each case on its merits and according to its specific circumstances. As we have said, the Internment of Unlawful Combatants Law prescribes a duty to conduct a periodic judicial review once every six months. The purpose of the judicial review is to examine whether the threat presented by the prisoner to state security justifies the continuation of the internment, or whether the internment order should be cancelled in circumstances where the release of the prisoner will not harm the security of the state or where there are special reasons justifying the release (see s. 5(c) of the Law). When examining the need to extend the internment, the court should take into account inter alia the period of time that has elapsed since the order was issued. The ruling in A v. Minister of Defence [1] concerning detention under the Emergency Powers (Detentions) Law, per President A. Barak, holds true in our case as well:

'Administrative detention cannot continue indefinitely. The longer the period of detention has lasted, the more significant the reasons that are required to justify a further extension of detention. With the passage of time the measure of administrative detention becomes onerous to such an extent that it ceases to be proportionate' (ibid., at p. 744).

Similarly it was held in A v. IDF Commander [16] with regard to administrative detention by virtue of security legislation in the region of Judea and Samaria that -

'The duration of the detention is a function of the threat. This threat is examined in accordance with the circumstances. It depends upon the level of risk that the evidence attributes to the administrative prisoner. It depends upon the credibility of the evidence itself and how current it is. The longer the duration of the administrative detention, the greater the onus on the military commander to demonstrate the threat presented by the administrative prisoner' (ibid., at para. 7).

Indeed, as opposed to the arrangements prescribed in the Emergency Powers (Detentions) Law and in the security legislation, a court acting pursuant to the Internment of Unlawful Combatants Law does not conduct a judicial review of the extension of the internment order, but examines the question of whether there is a justification for cancelling an existing order, for the reasons listed in s. 5(c) of the Law. Nevertheless, even an internment order under the Internment of Unlawful Combatants Law cannot be sustained indefinitely. The period of time that has elapsed since the order was granted constitutes a relevant and important consideration in the periodic judicial review for determining whether the continuation of the internment is necessary. In the words of Justice A. Procaccia in a similar context:

'The longer the period of the administrative detention, the greater the weight of the prisoner's right to his personal liberty when balanced against considerations of public interest, and therefore the greater the onus placed upon the competent authority to show that it is necessary to continue holding the person concerned in detention. For this purpose, new evidence relating to the prisoner's case may be required, and it is possible that the original evidence that led to his internment in the first place will be insufficient' (Kadri v. IDF Commander in Judaea and Samaria  [47], at para. 6).

In view of all the above, a court that conducts a judicial review of an internment under the Internment of Unlawful Combatants Law is authorized to confine and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant" and in view of the time that has passed since the internment order was issued. By means of judicial review it is possible to ensure that the absence of a concrete termination date for the internment order under the Law will not constitute an excessive violation of the right to personal liberty, and that prisoners under the Law will not be interned for a longer period greater than that required by material security considerations.

(7) The possibility of conducting criminal proceedings parallel to an internment proceeding by virtue of the Law

47. S. 9 of the Law, which is entitled "Criminal proceedings", provides the following:

'9. (a) Criminal proceedings may be initiated against an unlawful combatant under the provisions of any law.

(b) The Chief of Staff may make an order for the internment of an unlawful combatant under s. 3, even if criminal proceedings have been initiated against him under the provisions of any law.'

According to the appellants, the aforesaid s. 9 violates the right to personal liberty disproportionately since it makes it possible to detain a person under the Internment of Unlawful Combatants Law even though criminal proceedings have already been initiated against him, and vice versa. The argument is that by conducting both sets of proceedings it is possible to continue to intern a person even after he has finished serving the sentence imposed on him in the criminal proceeding, in a manner that allegedly amounts to cruel punishment. In reply the state argued that this is a fitting and proportionate arrangement in view of the fact that it is intended to apply in circumstances in which a person will shortly finish serving his criminal sentence and hostilities are still continuing between the organization of which he is a member and the State of Israel; consequently, his release may harm state security.

In relation to these arguments we should reiterate what we said earlier (at para. 33 above), i.e. that initiating a criminal trial against a person is different in its nature and purpose from the measure of administrative detention. In general it is desirable and even preferable to make use of criminal proceedings where this is possible. Recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are not possible, due to lack of sufficient admissible evidence or because it is impossible to disclose privileged sources. However, the reality of prolonged terrorist operations is complex. There may be cases in which a person is detained under the Internment of Unlawful Combatants Law and only at a later stage evidence is discovered that makes it possible to initiate criminal proceedings. There may be other cases in which a person has been tried and convicted and has served his sentence, but this does not provide a satisfactory solution to preventing the threat that he presents to state security in circumstances in which, after having served the sentence, he may once again become a security threat. Since a criminal trial and administrative detention are proceedings that differ from each other in their character and purpose, they do not rule each other out, even though in my opinion substantial and particularly weighty security considerations are required to justify recourse to both types of proceeding against the same person. In any case, the normative arrangement that allows criminal proceedings to be conducted alongside detention proceedings under the Law does not, in itself, create a disproportionate violation of the right to liberty of the kind that requires our intervention.

Interim summary

48.  Our discussion thus far of the requirement of proportionality has led to the following conclusions: first, the measure chosen by the legislator, i.e. administrative detention that prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel, realizes the legislative purpose and therefore satisfies the requirement of a rational connection between the legislative measure and the purpose that the Law is intended to realize. Secondly, the measures mentioned by the appellants in their arguments before us, i.e. recognizing them as prisoners of war, bringing them to a criminal trial or detaining them under the Emergency Powers (Detentions) Law, do not realize the purpose of the Internment of Unlawful Combatants Law and therefore they cannot constitute a suitable alternative measure to internment in accordance with the Law. Thirdly, the specific arrangements prescribed in the Law do not, per se and irrespective of the manner in which they are implemented, violate the right to personal liberty excessively, and they fall within the bounds of the room for constitutional maneuver granted to the legislature. In view of all this, the question that remains to be examined is whether the combination of the arrangements prescribed in the Law satisfies the test of proportionality in the narrow sense. In other words, is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose? Let us now examine this question.

Proportionality in the narrow sense - A reasonable relationship between  violation of the constitutional right and the public benefit it engenders

49.       The Internment of Unlawful Combatants Law was enacted against the background of a harsh security situation. The citizens and residents of the State of Israel have lived under the constant threat of murderous terrorism of which they have been victim for years and which has harmed the innocent indiscriminately. In view of this, we held that the security purpose of the Law - the removal of "unlawful combatants" from the terrorist organizations' cycle of hostilities against the State of Israel - constitutes a proper purpose that is based on a public need of a kind that is capable of justifying a significant violation of the right to personal liberty. For all these reasons, we were of the opinion that the legislature should be accorded relatively wide room for maneuver to allow it to choose the proper measure for realizing the legislative purpose (see para. 31 above).

As we have said, the measure that the legislature chose in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention in accordance with the arrangements that are prescribed in the Law. There is no doubt that this is a damaging measure that should be employed as little as possible. However, a look at the combined totality of the above arrangements, in the light of the interpretation that we discussed above, leads to the conclusion that according to constitutional criteria, the violation of the constitutional right is reasonably commensurate with the social benefit that arises from the realization of the legislative purpose. This conclusion is based on the following considerations taken together:

 First, for the reasons that we discussed at the beginning of our deliberations, the scope of application of the Law is relatively limited: the Law does not apply to citizens and residents of the State of Israel but only to foreign parties who endanger the security of the state (see para. 11 above).

Secondly, the interpretation of the definition of "unlawful combatant" in s. 2 of the Law is subject to constitutional principles and international humanitarian law that require proof of an individual threat as a basis for administrative detention. Consequently, for the purpose of internment under the Internment of Unlawful Combatants Law, the state must furnish administrative proof that the prisoner directly or indirectly played a material part - one which is neither negligible nor marginal - in hostile acts against the State of Israel; or that the prisoner belonged to an organization that is perpetrating hostile acts, taking into account his connection and the extent of his contribution to the organization's cycle of hostilities in the broad sense of this concept. In our remarks above we said that proving the conditions of the definition of "unlawful combatant" in the said sense includes proof of a personal threat that arises from the form in which the prisoner was involved in the terrorist organization. We also said that the state has declared before us that until now it has taken pains to prove the personal threat of all the prisoners under the Law specifically, and it has refrained from relying on the probative presumptions in ss. 7 and 8 of the Law. In view of this, we saw no reason to decide the question of the constitutionality of those presumptions (see paras. 24 and 25 above).

Thirdly, we held that in view of the fact that administrative detention is an unusual and extreme measure, and in view of its significant violation of the constitutional right to personal liberty, the state is required to prove, by means of clear and convincing evidence, that the conditions of the definition of "unlawful combatant" are fulfilled and that the continuation of the internment is essential. This must be done in both the initial and the periodic judicial reviews. In this context we held that importance should be attached both to the quantity and the quality of the evidence against the prisoner and to the extent that the relevant intelligence information against him is current (see paras. 22 and 23 above).

Fourthly, we attributed substantial weight to the fact that internment orders under the Internment of Unlawful Combatants Law are subject to preliminary and periodic judicial reviews before a District Court judge, whose decisions may be appealed to the Supreme Court, which will hear the case with a single judge. Within the framework of these proceedings, the judge is required to consider the question of the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In view of the reliance upon administrative evidence and the fact that privileged evidence is admitted ex parte, we held that the judge should act with caution and great precision when examining the material brought before him. We also held that a court that conducts a judicial review of internment under the Law may restrict and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant", and in view of the time that has elapsed since the internment order was issued. For this reason we said that it is possible, through the process of judicial review, to ensure that the absence of a specific date for the termination of the detention order under the Law does not violate the right to personal liberty excessively, and that prisoners by virtue of the Law will not be interned for a longer period than what is required by substantial security considerations (para. 46 above).

Finally, although the arrangements prescribed in the Law for the purpose of exercising the power of internment are not the only possible ones, we reached the conclusion that the statutory arrangements that we considered do not exceed the bounds of the room for maneuver to an extent that required our intervention. In our remarks above we emphasized that the periods of time prescribed by the Law for conducting a preliminary judicial review after the internment order has been granted, and with respect to preventing a meeting between the prisoner and his lawyer, constitute maximum periods that do not exempt the state from the duty to make an effort to shorten these periods in each case on its merits, insofar as this is possible in view of the security constraints and all the circumstances of the case. We also held that internment under the Internment of Unlawful Combatants Law cannot continue indefinitely, and that the question of the proportionality of the duration of the detention must also be examined in each case on its merits according to the particular circumstances.

In view of all of the aforesaid considerations, and in view of the existence of relatively wide room for constitutional maneuver in view of the essential purpose of the Law as explained above, our conclusion is that the Internment of Unlawful Combatants Law satisfies the third subtest of the requirement of proportionality, i.e., that the violation of the constitutional right to personal liberty is reasonably commensurate with the benefit accruing to the public from the said legislation. Our conclusion is based on the fact that according to the interpretation discussed above, the Law does not allow the internment of innocent persons who have no real connection to the cycle of hostilities of the terror organizations, and it establishes mechanisms whose purpose is to ameliorate the violation of the prisoners' rights, including a cause of detention that is based on a threat to state security and the conducting of a hearing and preliminary and periodic judicial reviews of internment under the Law.

Therefore, for all the reasons that we have mentioned above, it is possible to determine that the violation of the constitutional right to personal liberty as a result of the Law, although significant and severe, is not excessive. Our conclusion is therefore that the Internment of Unlawful Combatants Law satisfies the conditions of the limitation clause, and there is no constitutional ground for our intervention.

From the General to the Specific

50.  As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out pursuant to security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the nullification of the security legislation in force there, on 20 September 2005 the Chief of Staff issued internment orders for the appellants under the Internment of Unlawful Combatants Law.

On 22 September 2005 the Tel-Aviv-Jaffa District Court began the initial judicial review of the appellants' case. From then until now the District Court has conducted four periodic judicial reviews of the appellants' continuing internment. The appeal against the decision of the District Court not to order the release of the appellants within the framework of the initial judicial review was denied by this court on 14 March 2006 (Justice E. Rubinstein in CrimA 1221/06 Iyyad v. State of Israel [54]). Before us are the appeals on three additional periodic decisions of the District Court not to rescind the appellants' internment orders.

51.  In their pleadings, the appellants raised two main arguments regarding their particular cases: first, it was argued that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. Secondly, it was argued that even if the Internment of Unlawful Combatants Law is constitutional, no cause for internment thereunder has been proved with respect to the appellants. According to this argument, it was not proved that the appellants are members of the Hezbollah organization, nor has it been proved that their release would harm state security.

52.  We cannot accept the appellants' first argument. The end of military rule in the Gaza Strip did not obligate Israel to automatically release all the prisoners it held who are inhabitants of the Gaza Strip, as long as the personal threat posed by the prisoners persisted against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in arts. 132-133 of the Fourth Geneva Convention. Art. 132 of the Convention establishes the general principle that the date for the release of prisoners is as soon as the reasons that necessitated their internment no longer exist. The first part of art. 133 of the Convention, which relates to a particular case that is included within the parameters of the aforesaid general principle, goes on to provide that the internment will end as soon as possible after the close of hostilities. Art. 134 of the Convention, which concerns the question of the location at which the prisoners should be released, also relates to the date on which hostilities end as the date on which prisoners should be released from internment. Unfortunately, the hostile acts of the terrorist organizations against the State of Israel have not yet ceased, and they result in physical injuries and mortalities on an almost daily basis. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the prisoners that it held when military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual danger posed by the prisoners against the background of the continued hostilities against the security of the state.

53. With regard to the specific internment orders against the appellants by virtue of the Internment of Unlawful Combatants Law, the District Court heard the testimonies of experts on behalf of the security establishment and studied the evidence brought before it. We too studied the material that was brought before us during the hearing of the appeal. The material clearly demonstrates the close links of the appellants to the Hezbollah organization and their role in the organization's ranks, including involvement in hostile acts against Israeli civilian targets.  We are therefore convinced that the individual threat of the appellants to state security has been proved, even without resorting to the probative presumption in s. 7 of the Law (see and cf. per Justice E. Rubinstein in Iyyad v. State of Israel [54], at para. 8(11) of his opinion). In view of the aforesaid, we cannot accept the appellants' contention that the change in the form of their detention - from detention by virtue of an order of the IDF Commander in the Gaza Strip to internment orders under the Law - was done arbitrarily and without any real basis in the evidence. As we have said, the change in the form of detention was necessitated by the end of the military rule in the Gaza Strip, and that is why it was done at that time. The choice of internment under the Internment of Unlawful Combatants Law as opposed to detention under the Emergency Powers (Detentions) Law was made, as we explained above, because of the purpose of the Law under discussion and because it is suited to the circumstances of the appellants' cases.

The appellants further argued that their release does not pose any threat to state security since their family members who were involved in terrorist activities have been arrested or killed by the security forces, so that the terrorist infrastructure that existed before they were detained no longer exists. They also argued that the passage of time since they were arrested reduces the risk that they present. Regarding these arguments it should be said that after inspecting the material submitted to us, we are convinced that the arrest or death of some of the appellants' family members does not per se remove the security threat that the appellants would present were they to be released from detention. We are also convinced that, in the circumstances of the case, the time that has passed since the appellants were first detained has not reduced the threat that they present. In its decision in the third periodic review, the trial court addressed this issue as follows:

'The total period of the detention is not short. But this is countered by the anticipated threat to state security if the prisoners are released. As we have said, a proper balance should be struck between the two. The experts are once again adamant in their opinion that there is a strong likelihood that the two prisoners will resume their terrorist activity if they are released. In such circumstances, the operational abilities of the Hezbollah infrastructure in the Gaza Strip and outside it will be enhanced and the threats to the security of the state and its citizens will increase. The current situation in the Gaza Strip is of great importance to our case. The fact that the Hamas organization has taken control of the Gaza Strip and other recent events increase the risks and, what is more, the difficulty of dealing with them.... It would therefore be a grave and irresponsible act to release these two persons, especially at this time, when their return to terrorism can be anticipated and is liable to increase the activity in this field. I cannot say, therefore, that the passage of time has reduced the threat presented by the two prisoners, who are senior figures in the terrorist infrastructure, despite the differences between them. Neither has the passage of time reduced the threat that they represent to an extent that would allow their release.'

In its decision in the fourth periodic review the trial court also emphasized the great threat presented by the two appellants:

'The privileged evidence brought before me reveals that the return of the two to the field is likely to act as a springboard for serious attacks and acts of terror. In other words, according to the evidence brought before me, the respondents are very dangerous. In my opinion it is not at all possible to order their release. This conclusion does not ignore the long years that the two of them have been held behind prison walls. The long period of time has not reduced the threat that they represent' (at page 6 of the court's decision of 20 March 2008).

In view of all of these reasons, and after having studied the material that was brought before us and having been convinced that there is sufficient evidence to prove the individual security threat represented by the appellants, we have reached the conclusion that the trial court was justified when it refused to cancel the internment orders in their cases. It should be pointed out that the significance of the passage of time naturally increases when we are dealing with administrative detention. At the present time, however, we find no reason to intervene in the decision of the trial court.

In view of the result that we have reached, we are not required to examine the appellants' argument against the additional reason that the trial court included in its decision, relating to the fact that the evidence was strengthened by the silence of the first appellant in the judicial review proceeding that took place in his case, a proceeding that was based, inter alia, on privileged evidence that was not shown to the prisoner and his legal representative. The question of the probative significance of a prisoner's silence in judicial review proceedings under the Internment of Unlawful Combatants Law does not require a decision in the circumstances of the case before us and we see no reason to express a position on this matter.

Therefore, for all of the reasons set out above, we have reached the conclusion that the appeals should be denied.

 

Justice E.E. Levy:

I agree with the comprehensive opinion of my colleague, the President.

It is in the nature of things that differences may arise between the rules of international humanitarian law - especially written rules - and the language of Israeli security legislation, if only because those conventions that regulate the conduct of players on the international stage were formulated in a very different reality, and their drafters did not know of entities such as the Hezbollah organization and the like.

Therefore, insofar as it is possible to do so by means of legal interpretation, the court will try to narrow these differences in a way that realizes both the principles of international law and the purpose of internal legislation. In this regard I will say that I would have preferred to refrain from arriving at any conclusions, even in passing, regarding the provisions of ss. 7 and 8 of the Internment of Unlawful Combatants Law, 5762-2002. These provisions are a central part of this Law, as enacted by the Knesset. Insofar as there are differences between them and the provisions of international law, as argued by the appellants and implied by the state's declarations with regard to the manner in which it conducts itself de facto, the legislature ought to take the initiative and address the matter.

Justice A. Procaccia:

I agree with the profound opinion of my colleague, President Beinisch.

Appeals denied as per the judgment of President D. Beinisch.

8 Sivan 5768

11 June 2008

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

Before: The Honorable President D. Beinisch, The Honorable Justice
M. Naor, The Honorable Justice U. Vogelman

 

Petitioners in HCJ 4169/10: Yiftach Cohen; Omer Shatz, Itamar Mann

Respondents in HCJ 4169/10: The Minister of Defense; The Minister of the Interior; The Minister of Public Security

 

Petitioners in HCJ 4193/10: Adalah – The Legal Center for Arab Minority Rights in Israel; Public Committee Against Torture in Israel; Physicians for Human Rights

Respondents in HCJ 4193/10: The Minister of Defense; The Military Advocate General; The Israel Prison Service; The Israel Police; The Immigration Authority

 

Petitioners in HCJ 4220/10: Al Jazeera Satellite Network; Othman Al Bukhairi; Abas Naser; Muhammad Fal; Ali Sabri; Andrei Abu Khalil; Jamal Al Shial; Wasima Bin Salah

Respondents in HCJ 4220/10: The Israel Defense Forces; The Minister of Defense; The Minister of Public Security

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

Respondents in HCJ 4221/10: The Israel Police; The Israel Prison Service; The Government of Israel; The Minister of Defense; The Prime Minister

 

Petitioner in HCJ 4240/10: Shurat Hadin – Israel Law Center

Respondents in HCJ 4240/10: The Attorney General; The Prime Minister; The Minister of Public Security; The Minister of the Interior; The Israel Police

 

Petitioners in HCJ 4243/10: 1. Almagor – Terror Victims Association; Y.S. – Navy commando (res.); D.B. – Navy commando (res.) and bereaved brother; Pniel Krichman; Yekira and Zecharia Komemi; Aviva and Rahamim Komemi; Tzila Rahamim; Moshe Keinan; Briana and Shmuel Hilberg

Respondents in HCJ 4243/10: The Prime Minister; The Minister of the Interior; The Attorney General; The Inspector General of the Israel Police

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

For the petitioners in HCJ 4169/10: Itamar Mann; Yiftach Cohen; Omer Shatz

For the petitioners in HCJ 4193/10: Fatima El Ajou

For the petitioners in HCJ 4220/10: Zaki Kamal; Kamal Zaki Kamal

For the petitioner in HCJ 4421/10: Himself

For the petitioner in HCJ 4240/10: Nitsana Darshan Leitner

For the petitioners in HCJ 4243/10: Sharon Avni; Shira Greenberg

For the respondents: The State Attorney Moshe Lador; Osnat Mandel; Dina Zilber; Hila Groni

 

 

Judgment

 

 

President D. Beinisch:

 

 

1.          In view of the control of the Gaza Strip by the Hamas organization, Israel has taken various measures designed to prevent direct access to the Gaza Strip, among them a blockade of the Gaza Strip which, as declared by the State, is designed to prevent the infiltration of weapons and arms to the Hamas organization, which, for years, has carried out acts of shooting and terrorism at Israeli territory for the purpose of harming civilians.

 

2.          In recent weeks, announcements have been publicly made by various organizations, among them organizations that declared themselves to be acting for humanitarian purposes, regarding their intention to arrange a flotilla of ships which, they claimed, were designated to transfer foodstuffs and materials as humanitarian aid to the residents of the Gaza Strip. Israel, for its part, made efforts to prevent the flotilla from reaching the shores of Gaza and breaching the blockade in such manner. The State proposed to the organizers of the flotilla, among others, that the cargo – which was supposed to reach Gaza – be unloaded from the ships and transferred directly to Gaza via Israel. This proposal was rejected.

 

             In the early hours of May 31, a number of ships approached the shores of Israel to implement the flotilla's plan. As decided by the political echelon, the IDF prepared to take measures to prevent the entry of the ships into the Gaza Strip as stated. In the framework of an operation that was designed to stop the ships, soldiers landed on the deck of the ship Mavi Marmara, the largest ship in the flotilla. The soldiers met with a violent and severe response from the flotilla participants on the ship. The soldiers were attacked with knives, clubs and iron rods. Attempts were made to seize the soldiers’ personal weapons and they were violently attacked. One of the soldiers was even thrown off the deck of the ship. The soldiers were forced to respond to defend their lives and, unfortunately, the operation ended with unexpected loss of life - nine people were killed and both soldiers and flotilla participants were injured. The operation concluded with the ships being halted and their passengers removed and detained in Israel.

 

3.          That same morning, when the results of the operation became known, the petition in HCJ 4169/10 was filed with this court (hereinafter: the First Petition), in which four attorneys filed the petition as public petitioners. It should be noted that at the opening of the hearing before us, the petitioners gave notice of the request of attorney A. Feldman, who was among the petitioners, to strike his name from the petition. The petition ascribed grave and illegal acts to the State of Israel and the petitions sought a remedy of habeas corpus to free all the detainees. It is evident in the petition, which was hastily filed, that, notwithstanding the fact that the petitioners knew nothing about the actual events, they were quick to cast the gravest aspersions on the actions of the IDF forces, while using inappropriate language. Notwithstanding that stated, because the relief sought was the release of the detainees, the petition was not stricken in limine at that stage, and the State’s response was requested by the following day.

 

             During the course of that day and the following day, a number of additional petitions were filed with court. In HCJ
4193/10, which was filed on behalf of the Adalah organization and other human rights organizations, the petitioners requested information on the detainees and their whereabouts, as well as details on the injured and the dead. This petition was also filed as a public petition. Another petition (HCJ 4220/10) was filed by the Al Jazeera television network and in the name of journalists acting on its behalf who had been arrested on the ship. This petition requested the release of the network personnel who had participated in the flotilla. It should be noted that during the hearing that we held, it transpired that this petition was superfluous since the petitioners had already been released.

 

4.          On June 1, 2010, the government issued a statement that all the foreign flotilla participants would be released and returned to their countries. After this statement was issued, three additional petitions were filed with this court: HCJ 4221/10, which was filed on behalf of Mr. Yekutiel Ben Yaakov; HCJ 4240/10, which was filed by Shurat Hadin – Israel Law Center; and HJC 4243/10 filed by Almagor – Terror Victims Association. In these three petitions, the remedy sought was to bar the release of the foreign flotilla participants, with the main argument being that these were people who had committed an offense, who were required both for investigating the facts and the circumstances surrounding the incident and for a decision about arraignment for trial.

 

             In view of the remedy sought, which related to the question of the release of a large number of detainees, we conducted an urgent hearing and deliberated all the petitions together before the panel at that session, and within two days of the filing of the First Petition.

 

5.          Before the hearing, the State submitted a written response in which it protested the description of the events in the First Petition and pointed out the distortion of the facts therein. In essence, the State addressed the legality of the blockade and referred to an alternative remedy set forth in the relevant provisions of the Entry into Israel Law, 5712-1952, with regard to the foreign participants in the flotilla and the relevant provisions of the law pertaining to the criminal proceedings of investigation and detention with regard to the Israeli suspects who participated in the event. During the day, proximate to the time of hearing the petitions, the State completed its statement and submitted a decision formulated by the attorney general, which stated that on the day of the event, May 31, 2010, the attorney general ordered the opening of an investigation on suspicion of offenses committed on the deck of the ship Mavi Marmara, including the offense of the grave attack on IDF soldiers, disturbing the peace, endangering the lives of soldiers, seizing weapons and so forth. The attorney general further stated that the next day, the ministerial committee on national security matters convened and conducted a long and exhaustive discussion of the security, political, legal and other aspects of the affair. At the end of the discussion, the senior political echelon recommended “to enable the immediate deportation of all the foreigners who had arrived on the flotilla, who were suspected of committing criminal offenses. This is recommended for clear political reasons pertaining to foreign relations and the security of the State of Israel.” In his decision, the attorney general noted that he had discussed the matter with the state attorney and other senior officials at the Ministry of Justice and other government ministries, at the end of which he decided, as stated, to allow the immediate deportation of all the foreigners from Israel.

 

6.          During the hearing before us, State Attorney Moshe Lador, appeared together with senior attorneys. It should be noted that due to the nature of the proceedings which we conducted, we sought not to address the claims pertaining to the legality of the blockade, nor with the factual events during that grave incident, the full details of which had not been presented to us. Claims pertaining to the detention of Israelis suspected of committing offenses while participating in the flotilla were also not adjudicated before us, as they should be argued in individual hearings on the criminal arrest proceedings before the competent courts. The hearing focused on the urgent remedies sought which pertain to holding the foreign detainees. The state attorney stated that all the foreigners who wished to do so could be released from detention and, in effect, those who had not yet left the country were on their way to the airport. The wounded whose medical condition allowed for it, were also removed to their countries of origin. Apparently, two of the wounded remained in the hospital because their condition did not enable them to be flown back to their country. The state attorney further stated that the names of all the wounded had been submitted to the relevant consulates and, with regard to those who came from countries that do not have diplomatic relations with Israel, the details were provided to the Red Cross. It should be noted that the State did not see fit to acquiesce to the request to provide details in this matter to counsel for the Adalah organization, as the details had been provided to the relevant entities. However, the possibility arose that if a specific, substantive application were to be made to obtain details regarding one of the casualties or the wounded, the State would examine the possibility of providing counsel for the Adalah organization with the requested details. It further transpired that the remaining details requested by the Adalah organization regarding the place in which the detainees were being held were resolved. The Adalah organization’s counsel also made claims with regard to the detainees' ability to meet with attorneys. During the hearing it was made clear that there had been no intention to prevent such a meeting, and many detainees had actually already met with attorneys. Due to the need to release hundreds of people quickly, not all the detainees may have had the opportunity to meet with an attorney.

 

             The position of the attorney general to release all the foreign participants meant that the main remedy sought in the First Petition was already granted. In the course of the arguments, in view of the response of the state attorney and the comments of the court, the petitioners retracted the style of the scathing verbal attack that they had employed in the petition.

 

7.          As stated, three of the petitions were filed against the attorney general’s decision to release the foreign detainees. Each one of the petitioners argued before us at length about the importance of keeping the detainees in Israel for the purpose of conducting an exhaustive investigation regarding the grave events that occurred on the ship, and regarding the need to exercise the full rigor of the law or, at least, to investigate details which, they claim, would constitute defense arguments for the IDF soldiers.

 

             We did not find any ground for intervention in the decision of the attorney general. The decision to release the detainees is in the realm of the attorney general’s discretion. In a long series of judgments, this Court has ruled that the scope of intervention in the attorney general’s discretion in decisions pertaining to investigation or prosecution is limited to exceptional and unusual instances. Due to the unusual nature of the event and the circumstances entailed therein which, aside from the criminal aspects, also encompass political aspects pertaining to the State’s foreign relations, the attorney general was entitled to consider these aspects. The developments that have ensued in the international arena indicate that a particular political sensitivity exists in everything pertaining to the handling of the matter by the enforcement entities. The attorney general noted that he consulted with all the relevant government entities and after taking into account the fact that nine flotilla participants were killed and several dozen were wounded, he reached the conclusion that the public, political and security interests outweigh the interests of criminal enforcement. We did not find in this decision, which was reasoned as stated, and in the considerations underlying it, any cause for intervention.

 

             Wherefore, after we were convinced that the main remedies sought in some of the petitions were superfluous, and in the absence of cause to intervene in the decision of the attorney general, we have decided to deny the petitions.

 

             Given this day, 20 Sivan 5770 (June 2, 2010).

 

 

The President          Justice                 Justice

_________________________

This copy is subject to editorial and textual changes 10041690_N04.doc AB

Information Center Tel; 02-65936666, website www.court.gov.il

HCJ 358/88

           

The Association for Civil Rights in Israel and others

v.

The Central District Commander and Another

 

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[July 30, 1989]

Before  Shamgar P., Elon D.P., and Wallenstein, J.

 

 

Editor's Synopsis -

            Regulation 119 of the Defence (Emergency) Regulations 1945 authorizes a Military Commander to order the forfeiture and destruction or sealing of any house from which gun fire has issued or explosive or incendiary material was thrown unlawfully, and of any house in an area or village residents of which violated the Emergency Regulations involving violence or intimidation. These regulations, including the said Regulation 119, were promulgated by the British Mandate during the period of its rule in Palestine.

           

            Regulation 119 continues to be in force in Israel by virtue of section 11 of the Law and Administration Ordinance enacted by Israel upon its establishment in 1948, which provide in essence that the law that was in force on the eve of the establishment of the State shall continue to be in force until abolished or amended by a law enacted by the Israeli Knesset. The Regulation also continues to be in force in Jordan by virtue of similar legislation there. Therefore, it is part of the local law that was in force in Judea and Samaria when those areas were occupied by the Israel Defense Forces during the Six Day War in 1967, and under international law it continues to be the law in force in the occupied territories. No substantive change has been made in the law in Gaza since the Mandate and Regulation 119 continues in force there as well.

           

            This Petition concerns the procedures applicable when a Military Commander issues an order to demolish a house pursuant to Regulation 119, more particularly, whether the owner or occupants of a house affected by such an order should have the right to a brief delay in its implementation, during which time they can present their objections thereto before the Commander who issued the order, consult with legal counsel and, if they wish, raise their claims by petition before the High Court of Justice. The Court issued an order directing the Respondents to show cause why they should not allow the Petitioners the rights claimed.

           

            The Petitioners argued that the right to present one's claims is a fundamental right of natural justice that has legal force even if it is not set forth expressly in the Regulations at issue. This right is especially important in the case of the Regulation at hand, since the destruction of the property is irreversible. Destruction of the property is a severe sanction, whose very severity requires that an opportunity be allowed to present one's claims before the Regional Military Commander and, if need be, before the Court.

           

            The Respondents asserted that, in practice, it is generally possible for a party affected by such an order to present his claims before the Military Commander who issued the order and that implementation of the order will ordinarily be postponed to enable the affected party to petition the High Court of Justice, if he wishes to do so. But, they contended, there are occasional instances of "severe and exceptional cases" in which it is essential that the powers granted by Regulation 119 be enforced promptly after the event because of which the order was issued, in order to achieve the desired deterrent effect. Such cases consist of incidents involving lethal injury or grievous wounding and the throwing of incendiary bottles. The Respondents objected to a broad ruling that would require a delay in implementing the order in all cases, such as was sought by the Petitioners.

           

            The Court accepted the Petition and issued a rule absolute in the Petitioner's favor to the effect that -

           

1.  Except for matters involving ongoing military-operational needs, such as, for example, the need to clear away an obstacle or overcome resistance that prevents taking prompt military action in response to an attack on military forces or on civilians, an order issued under Regulation l19 should include a notice that the person affected by the order may select an advocate and present his claims before the Military Commander, within a fixed time period set forth therein, before the order is implemented, and that he will be given an additional fixed period to apply to the High Court of Justice;

 

2.     The State may apply to the Court, in an appropriate case, and request that the hearing of the matter be given preference;

 

3.     In urgent situations, the premises can be sealed on the spot before the appeal or hearing takes place. The sealing of the premises, as distinguished from their destruction, is not irreversible.

 

            In reaching its decision, the Court noted, inter alia, that international law does not recognize any right to present one's claims under a regime of military law, as the Petitioners seek in this case. However, Israeli military authorities who function in the occupied territories do so under a dual and cumulative standard. In addition to their duty to abide by the Laws of War, as Israeli officials in the Area, they must also act in accordance with the norms of Israeli administrative law. As such, an Israeli official does not fulfil his duty merely by satisfying the norms of international law, but he must also act in accordance with the rules of Israeli administrative law that define what constitutes a fair and ordely administration. The right to be heard is not a part of the Laws of War, but an Israeli authority will not fulfil its duty if it does not respect that right.

 

Israel Supreme Court Cases Cited:

 

[1] H.C. 897/86 jabar v. The Central District Commander, 41(2) P.D. 522.

[2] H.C. 513, 514/85 Nizal v. The Commander of the I.D.F. Forces in the Judea and Samaria Region, 39(3) P.D. 345.

[3] H.C. 434/79 Schoweel v. The Regional Commander of Judea and Samaria, 34(1) P.D. 464.

[4] H.C. 22/81 Chamad v. The Regional Commander of Judea and Samaria, 35(3) P.D. 223.

[5] H.C. 274/82 Chamamra v. The Minister of Defence, 31(2) P.D. 755.

[6] H.C. 69, 493/81 Abu Aita v. The Regional Commander of Judea and Samaria, 37(2) P.D. 197.

[7] H.C. 619/78 "Al Tliyah" Weekly v. The Minister of Defence, 33(3) P.D. 505.

[8] H.C. 331/71 Almakdesah v. The Minister of Defence, 26(1) P.D. 574.

[9] H.C. 361/82 Chamri v. The Regional Commander of Judea and Samaria, 36(3) P.D. 439.

 

American Cases Cited:

 

[10] Hirabayashi v. United States 320 U.S. 81 (1954).

[11] Korematsu v. United States 319 U.S. 432 (1944).

[12] Calero-Toledo v. Pearson Yacht Leasings Co. 94 S. Ct. 2080 (1974).

 

 

JUDGMENT

 

            SHAMGAR P.: 1. This petition concerns the introduction of fixed and general appellate procedures to apply in Judea, Samaria, and the Gaza Strip, following the issuance of an order pursuant to Regulation 119 of the Defence (Emergency) Regulations, 1945, with regard to the demolition or sealing of a building or part thereof.

 

            Based on the petition, this Court issued an order nisi, instructing the Respondents to appear and explain:

           

            "A. Why they should not permit a resident of a house, as to which an order of demolition or sealing will be issued pursuant to Regulation 119 of the Defence (Emergency) Regulations, 1945, to present his claims before the competent authority prior to the implementation of the order.

 

B. Why they should not allow such resident a delay of 48 hours from the denial of consent to his application, or of a longer period of time as may be determined by this Court, to submit a petition to this Court, if he should so desire, prior to the implementation of the order.

 

C. Why they should not permit such a resident to establish immediate contact with a lawyer, if he should so desire.

 

D. Why they should not notify such a resident that he has these rights."

 

            2. The aforementioned Regulation 119 of the Defence (Emergency) Regulations was promulgated by the High Commissioner in the year 1945, during the time of British rule over all the territories which today include the State of Israel and the areas occupied by her. This is the text of the regulation:

           

            "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, detonated, exploded or otherwise discharged, or of any house, structure or land situated in any area, town, village, quarter or 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 Defence Minister 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 of forfeiture had not been made.

 

(2) Members of the Government Forces or of the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (l), after eviction without compensation, of the previous occupiers, if any." (Emphasis added - M.S.)

 

            The Regulation continues to be in force in Israel by virtue of the provisions regarding the continuity of the law, as stated in paragraph 11 of the Law and Administration Ordinance, 5708-1948.

           

            It continues to apply in Judea and Samaria by virtue of similar provisions regarding the continuity of the local law, which were enacted by the Jordanian government.

           

            In H.C. 897/86 [1], we stated in this regard, at pp. 525-526:

           

"... Regulation l19 is part of the law which was in force in Judea and Samaria just before the establishment there of I.D.F. rule.... The local law remained in force, with exceptions not related to the matter before us, in accordance with the principles of public international law, as set forth also in the Law and Administration Proclamation (Judea and Samaria) (No. 2), 5727-1967 of the Regional Commander of I.D.F. Forces (see Regulation 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention). Hence, the authority granted by the said Regulation ll9 is local law that exists and applies in the area of Judea and Samaria, that was not abolished during the previous regime or the Military Rule, and no legal reasons have been brought before us, on the basis of which it should be deemed abolished now."

 

            With regard to the continuing force of the above-mentioned Defence (Emergency) Regulations in Judea and Samaria, see also H.C. 513, 514/85 [2], at p. 650; as to the validity of Regulation 119, see also, inter alia, H.C. 434/79 [3], at p. 466; H.C. 22/81 [4], at p. 224; H.C. 274/82 [5], at p. 756.

           

            No substantive change in the local law has occurred in the Gaza Strip since the period of the Mandate, so no claim has ever been raised against the continuing validity of the above-noted Defence (Emergency) Regulations in general, and of Regulation 119 in particular, there.

           

            3. The Petitioners claim that the owners of the building or those who reside in it, as to which an order pursuant to Regulation  119 is about to be implemented, should be permitted to present objections to the Regional Commander who issued the order. Thereby, the right to present one's claim will be given expression prior to implementation of the order, so that one who is affected by the matter can try to persuade the Regional Commander that the order should not be issued in the circumstances. As requested by the Petition before us, if the Regional Commander declines to rescind his decision, there should be an additional delay in implementing the order for 48 hours or more, as will be determined, so as to permit application to the High Court of Justice prior to implementation of the order. Thus the right to present one's claim will find its expression before the property of those affected in the matter is damaged. According to the Petitioners, the right to present one's claim is a right rooted in Israeli law, available to every person in judicial, quasi-judicial and even administrative proceedings. They assert:

 

"The principle accepted in Israel is that when legislation grants a government authority the power to take a decision that injures a citizen, the principles of natural justice apply without the need that they be enacted expressly. These principles do not apply only when there exists an explicit and clear legislative provision that negates their applicability. Legislative silence should not be interpreted as a negative regulation, when it comes to the applicability of principles of natural justice, and its express recognition in the one case does not imply its rejection in others."

 

            In the Petitioners' opinion, the emergency situation does not abolish the existence of the right as stated, and the power applied pursuant to emergency regulations - including both those who source is Mandatory legislation as well as those whose basis is paragraph 9 of the Law and Administration Ordinance - does not limit the described right. In their words:

           

"The essence of Regulation 119, which grants power to inflict extreme and severe punishment, does not suggest the negation of principles of natural justice. On the contrary. The more extreme the authority, and the more severe the injury to the citizen's rights, the more it is necessary to adhere strictly to the procedural protections given to the person who is likely to be hurt, including his right to have his claim heard."

 

            They further contend that the negation or postponement of the right to present their claim can be justified only to prevent serious danger or the complete frustration of government action. An example of circumstances of the first type is the hospitalization of a person against his will if he is liable to hurt himself or another, or the destruction of a dangerous article. Also, a security operation, such as the destruction of a building for immediate-operational reasons to prevent it from being used as a hiding place for terrorists, can justify a departure from the right to present one's claim. An example of the second array of circumstances is the issuance of an order barring departure from the country or the seizure of an item which may be removed beyond control; even then, two cumulative conditions must be satisfied, that the action taken is reversible (a bar against leaving the country can be cancelled), and that the right to be heard will be granted immediately after the action is taken.

 

            The sanction pursuant to Regulation 119 is severe, and the demolition is irreversible. The claim is that the Respondents' opposition to permitting a delay in enforcement of the order for the purpose of presenting their objection is intended primarily, according to the Petitioners, to prevent application to the High Court of Justice, because in this forum, the question whether the issuance of the order was weighed pursuant to standards formulated in this Court will be put to test, including whether there is an adequate factual basis for the exercise of the authority. Without hearing the claim by the owner of the building, there is no opportunity for suitable weighing and examination of the facts by the competent authority:

           

"When an order is issued immediately after a horrible terrorist episode or a serious incident (such as the Baita Incident), the Military Commander is liable to reach his decision as a result of his and the public's emotional reaction, and sometimes even before the facts of the incident are thoroughly clarified. The Commander must act from logical and relevant considerations. He must not operate - and the public must not fear that he operates - out of anger, haste or a public atmosphere that demands revenge. A reasonable pause and listening to the affected party are the best assurances for making a reasoned decision".

 

            According to the Petitioners, there is no proof that speed of action helps bring about deterrence, and, even if the matter were so, it would not justify making an exception to the principles of natural justice.

           

            4. The Respondents claim that, in reality, it is generally possible for the affected party, against whose property an order of demolition or sealing has been issued pursuant to Regulation 119, to present objections to the Regional Commander even though Regulation 119 in particular and the local law in general do not contain provisions allowing objections or appeal before a judicial authority. In other words, according to the Respondents' answer, it is the practice today, in many cases, to delay the implementation of an order if the affected party wishes to petition to the High Court of Justice concerning the issuance of the order after rejection of his application to the Regional Commander.

 

            As stated in the Respondents' answer, the Regional Commander's work practices contain directives to provide the affected party an opportunity to set forth his claims during the time period necessary for gathering the facts and reaching a decision, except in serious and exceptional cases, subject to such limitations as will ensure that this will not frustrate the primary goal, which is to exercise the authority without particular delays so as to fulfil the Military Commander's obligations and rights to protect public law and order in the area.

           

            These matters, according to the Respondents, are a consequence of the policy that seeks to apply the general principles of law, as far as possible, even in times of emergency and in conditions of emergency; but this is to be done in such a way as to preserve the required balance between the principles mentioned and safeguarding security needs and the public order in the area, as changing conditions require from time to time.

           

            The Respondents further explained in their Response the background for their opposition to the Petitioners' request that a delay be allowed in every case to raise an objection and apply to a court before the excercise of the said authority based on Regulation 119; and thus it is said, inter alia, in the words of the Response:

           

          "Regulation 119, by its very nature, grants the Military Commander the authority to apply the sanctions specified therein at varying levels of severity, beginning with forfeiture, partial or complete sealing, and ending with forfeiture and demolition of the structure.

           

          The more severe the implemented sanction, the greater is the corresponding deterrent effect.

 

Alongside the severity of the sanction and its level, it is of the greatest importance that it be implemented quickly and immediately after the criminal act, because of which it was taken in the first place.

 

An immediate response in executing the sanction is of the greatest importance, particularly in serious and exceptional events, in which demolition of the building urgently and immediately - as distinguished from sealing it - will have the greatest deterrent effect.

 

I wish to reassert once again that the defence establishment is cognizant of the extreme seriousness of the destruction of a house without providing a prior right to assert claims, but this sanction will be applied only in serious and exceptional cases, that result in a lethal injury or grievous wounding, and against those who throw incendiary bottles and are caught within a short and reasonable time thereafter."

 

            In a notice from the State Attorney, detail is given of the lines of action approved by the Minister of Defence, pursuant to which the Respondents will operate from now on. The statement reads:

           

"(A) Except in severe and exceptional cases, notice is to be given to the residents of the house concerning the possibility to present their contentions before the Military Commander, before the excercise of the authority under Regulation 119 of the Defence Regulations. Afterwards, if they should so desire, they are to be given additional time to submit their contentions to the honorable Court, before the implementation of the order.

 

(B) 'Severe and exceptional cases' will be deemed particularly serious events that result in lethal injury or grievous wounding.

 

(C) Also, the residents of the house will not be given the opportunity to raise their claims prior to implementation of the order, in situations requiring, in the Military Commander's opinion, a quick deterrent response, shortly and within a reasonable period of time after the event.

 

Such situations occur today in cases of the throwing of incendiary bottles.

 

(D) Residents of the building are not to be prevented from contacting a lawyer, if they so desire."

 

            In the course of the hearing, the Court raised a proposal, according to which, if there is an intention to seize the house, it would be possible to seize the house and seal it before hearing the residents' claim, but the act of demolishing the house would not be taken until after the right to present the claims has been allowed, pursuant to the usual time periods. The Petitioner's learned counsel, Advocate Shoffman, agreed to the said proposal.

           

            The Minister of Defence's response to the Court's said proposal was presented in a notice from the State Attorney's Office, which stated:

           

"After the Minister of Defence consulted with various security officials, including the Respondents, and after he considered the Court's proposal and examined it, and giving consideration to the current circumstances and situation, the Minister of Defence cannot accept the honorable Court's proposal, at this time".

 

            Nevertheless, the Respondents once again confirmed that they will adhere to the arrangement whose salient points were quoted above.

           

            We will now examine the litigants' claims.

           

            5. According to the Law and Administration Proclamation (Judea and Samaria) (No. 2), 5727-1967, the law which was in force in the Gaza Strip and the Judea and Samaria area on the 27th of Iyar 5727 - June 6, 1967, or the 28th of Iyar 5727 - June 7, 1967, respectively, will continue and remain in force, insofar as there is nothing therein that contradicts the above-mentioned Proclamation or any Proclamation or Order which will be issued by the Commander of I.D.F. forces in the area, and subject to such modifications as may result from the establishment of I.D.F. rule in the area. The Proclamation expresses public international law principles, as they are also set forth, inter alia, in Regulation 43 to the Supplement to the 1907 Hague Regulations regarding the Law and Customs of War On Land (hereinafter - the Hague Regulations) and in Article 64 to the Geneva Convention Relative To The Protection of Civilians in Time of War, 1949 (hereinafter - the Fourth Geneva Convention).

 

            When applying principles of public international law, the Regional Commander operates according to guidelines that are derived from the basic conceptions of administrative law practiced in Israel. We said in H.C. 69, 493/81 [6], at pp. 231-232:

           

"...[T]he Court reviews the legality and validity of the action in accordance with the principles of Israeli administrative law, to ascertain whether the official who carries out functions of the Military Government, acts lawfully and according to the norms binding on an Israeli public servant. More particularly, this does not mean that Israeli administrative law applies to the Region and its inhabitants or that the legality of an act in the Administered Territory will be examined according to Israeli law only. The above dictum means that the legality and validity of actions of the Military Government and its authorities, as arms of the Israeli Executive, will be tested by additional criteria. True, the rules of Israeli law have not been applied to the Area, but an Israeli official in the Area brings with him to his functions the duty to act in accordance with those additional standards that are demanded by reason of his being an Israeli authority, wherever he may be. In this regard he bears an additional and cumulative duty, because the duty to conduct himself according to the norms of Israeli administrative law does not release him from the duty to abide by the Laws of War. Therefore, he cannot rely on norms of the Israeli administrative law to refrain from fulfilling a duty or honoring a prohibition that applies to him as is customary under the Laws of War. But, from this Court's perspective, an official does not generally fulfil his duty by merely doing what the norms of international law require of him, since more is demanded of him as an Israeli authority, namely, that he act in the Military Government Area in accordance with the rules that define fair and orderly administration. For example, the Laws of War do not contain any firmly established rule - or even a developing rule - about the right to be heard, but an Israeli authority will not discharge its duty, when its acts are judicially reviewed by this Court, if it does not respect this right in those cases in which the norms of our own administrative law require that it be granted. All this is obviously subject to specific legislation prescribing special regulations in any particular matter. It was to this that the following remarks describing the two-level Israeli conception were directed:

 

'From the normative point of view the rule of law in the territories found its expression in the adoption of two main principles of action:

 

(1) the prevention of the development of a legal vacuum by the de facto observance of customary international law and the humanitarian rules included in the Hague Rules and the Fourth Convention and furthermore;

 

(2) the supplementation of the above-mentioned rules and provisions by the basic principles of natural justice as derived from the system of law existing in Israel, reflecting similar principles developed in western democracies.

 

(M. Shamgar, Legal Concepts and Problems of Israeli Military Government, supra at 48-49)'"

 

In H.C. 619/78 [7], at pp. 511-512, it was indicated that -

 

"From the facts and the claims which are before us, it appears that the Israeli Military Government did not exercise its above-stated authority, granted it under international law, to the fullest extent and severity, but rather sought to limit itself, as much as possible, to those means which are absolutely essential for the preservation of public safety and peace, while giving expression, in practice and in theory, to the tendency to go beyond the rule of law in the formal sense of this phrase and adopt our conception of the rule of law in its substantive meaning ..." (Emphasis added - M.S.).

 

            In other words, the Israeli regime took a more moderate approach, in various areas, than that permitted according to the principles of international law. Thus, for example, the more extreme approach with regard to its consequences for individual rights, as expressed for example in the circumstances described in the decisions of the United States Supreme Court in Hirabayashi v. United States (1943) [1O] and Korematsu v. United States (1944) [11], was not taken.

           

            The above noted H.C. 619/78 [7], added, at p. 512:

           

          "The Respondents' exercise of authority will be tested by the same standards that this Court applies when it reviews the actions or omissions of any other arm of the executive, taking into consideration of course the Respondents' obligations as they are defined from the nature of their functions, as described above."

 

This means, in defining the obligations of Military Commanders, and when the Court reviews government actions, the Court is guided by the rules of administrative law, which always include, of course, reference to the scope, the character and the substance of the powers and the duties of the public servant whose actions are being examined by the Court.

                                                                                                

A derivative question arises at this point, namely, how do the rules of administrative law integrate themselves within the operation of local law. Do the above statements mean that the provisions of the local law, too, are altered automatically, being subordinated to the rules of Israeli administrative law? Such a sweeping answer must be rejected because, for example, we cannot hold that every local provision of law that grants authority to act to any government authority, incorporates by itself, without supplementary defense legislation, the relevant norm of Israeli administrative law. This approach is not in accord with the principles of public international law, that the local law may only be amended explicitly, on the basis of security legislation within the bounds created by international law (see Regulation 43 to the Hague Regulations and Article 64 to the Fourth Geneva Convention cited above, and see also H.C. 331/71 [8], and H.C. 493, 69/81 [6], referred to above.

 

To summarize this point: the topic under consideration must be dealt with at all times according to the context, nature and implications of the local law. The primary guideline in a case such as this is that a change in the local law provisions can only derive from legislative directive, which in the area of Military Government finds its sole expression in the security legislation (see, for example, Order Concerning the Cancellation of the Boycott Laws Against Israel (Judea and Samaria) (No. 71), 5727-1967, and Order Concerning Local Courts (Death Penalty) (Judea and Samaria) (No. 268), 5728-1968).

                                                                                                

And yet, it is also necessary to examine each subject according to the substance of the directive or the guideline which it is sought to engraft as an additional layer on the existing local law. Therefore, if the Regional Commander establishes for himself internal rules of action, by virtue of which he abstains from excercising a certain power in its fullest severity, and establishes for himself a more liberal rule of action that does not harm individual rights, the matter may be expressed in internal working procedures alone, even without legislation.

                                                                                                

6. The Regional Commander bears responsibility for the public security and order in the area which he commands. In the framework of his obligations he must also protect the safety of the I.D.F. forces and public administration officials and maintain lines of transportation (see Article 64 to the Fourth Geneva Convention, noted above). He must ensure, as necessary, the appropriate and effective operation of the penal laws and prevent crime and anarchy. A resident of the territory who commits an act of violence against the armed forces commits a crime and it is expected that he will be brought to judgment according to the law and that every possible sanction within the local law or according to the security legislation will be taken against him (see also Sir H. Lauterpacht, The Law of War on Land, Part III of the Manual of Military Law (London, 1958) 35-36.

  The prevention of acts of violence is a condition for the establishment of public safety and order. There is no security without enforcement of the law, and law enforcement will not be successful and will not be effective if it does not also have a deterrent influence. The range of steps taken to enforce the law is in all cases related to the seriousness of the offense, to its frequency and to the nature of the offense committed. If, for example, there is a proliferation of murders of people because of their contacts with the Military Government, or if attacks are made which are intended to bum people or property so as to sow terror and fear, stricter and more frequent enforcement of the law is required. These things are true in every location, and the Military Government territory is not exceptional in this regard; to the contrary, the establishment of order and security and its preservation in practice are, according to public international law, among the central tasks of the Military Government.

                                                                                                

Regulation 119 cited above is among the lawful sanctions applicable according to the local law, and the excercise of its powers is given, of course, to the discretion of the military authority that commands the territory and whose tasks were defined above.

                                                                                                

This discretion is subject to judicial review, just as that of all other administrative authorities, and we have already referred to our statement on this matter in H.C. 619/78 [7] supra (see also H.C. 274/82 [5] supra). Judicial oversight examines whether the discretion was excercised lawfully. And in this connection, attention is also paid to the question whether the decision was properly considered and examined and, inter alia, whether the enforcement of the regulation and the level of its enforcement are commensurate with the seriousness of the act for which it is sought to be applied, pursuant to the examination according to these standards.

                                                                                                

Thus it was said, for example, in H.C. 361/82 [9], at p. 444, that:

           

"The Military Commander's judgment, that the circumstances of the matter before him demand forceful action, which can be a deterrent, and protect thereby security and order, is a consideration that, in the circumstances of the matter before us, falls within the framework of the lawful considerations that the Military Commander is permitted to weigh."

 

            7. 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 this 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.

           

            Demolition of a building is, everyone agrees, a harsh and severe means of punishment, and its deterrent power does not diminish its described nature. One of its central characteristics is that it is irreversible, that is, it cannot be corrected after the act; a hearing after implementation of the order is always very limited from the point of view of its practical meaning. According to our legal conceptions, it is, therefore, important that the interested party be able to present his objections before the Commander prior to the destruction, to apprise him of facts and considerations of which perhaps he was unaware.

           

            This Court considers that the existence of fair hearing rules in a matter involving a person, is expressed, inter alia, in that one who anticipates severe harm to his person or property shall be given advance notice and be granted an opportunity to raise his objections in the matter. This rule applies also when the law permits an act on the scene, such as immediate forfeiture of property (which is permitted in certain circumstances, for example according to the United States decisions, even when the property owner was not involved in committing the offense because of which the property is forfeited. See: Calero-Toledo v. Pearson Yacht Leasings Co. (1974) [12]).

           

            8. Certainly there are military-operational circumstances, in which the conditions of time and place or the nature of the circumstances are inconsistent with judicial review; for example, when a military unit is engaged in an operational action, in which it must clear away an obstacle or overcome resistance or respond on the spot to an attack on army forces or on civilians which occurred at the time, or similar circumstances, in which the authorized military authority sees an operational need for immediate action. By the very nature of the matter, in circumstances such as these there is no place for delay in the military action, whose performance is required on the spot.

 

            9. 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 dealt with in paragraph 8.

           

            This Court, when sitting as the High Court of Justice, has not closed its gates to complaints and appeals of She inhabitants of Judea, Samaria and Gaza since the establishment of military rule in June 1967, and has dealt with them according to the same standard we apply to anyone who presents his matters before us. There is no legal or other justification, particulary in a matter whose consequences are irreversible after the act, for us to raise the threshhold and refuse to listen to claims against the acts of the administration.

           

            The legitimate and proper balance between the need to act in a quick and effective manner and the grant of opportunity to present one's objection to the Commander or by petition to this Court must and can find its expression in the right of preference, which the court can grant in urgent situations, as it has done, more than once, in varied and different situations, if such a request comes to it from an interested party.

           

            In other words, the military practice can allow a fixed delay for application to a lawyer, to the Regional Commander or to this Court, in that order, and upon request the Court may, according to its discretion, grant priority for clarification of matters such as this.

           

            Furthermore, if on-the-spot action is required, it is sufficient to take action which is reversible, such as eviction and sealing, and to delay the matter of demolition until after the judicial decision.

           

            In other words, I see room to distinguish between sealing and demolition. The first may be done on the spot, if circumstances require this. Before taking action of the second type (demolition), time is to be given to assert one's claims by way of objection or of petition, as the case may be.

 

            In summation:

           

            (A) I think that, except for matters involving military-operational needs as set forth in paragraph 8, 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.

           

            (B) Of course, the State may apply to this Court, in an appropriate case, and request that the hearing in a petition of this type be granted a right of preference.

           

            (C) In urgent situations, the premises can be sealed on the spot, as distinguished from demolition, which is, as stated, irreversible, before the appeal or hearing of the Petition takes place. In the case of an on-the-spot sealing, as stated, notice is to be given to the affected party, clarifying that the right of objection or submitting a petition remains available.

           

            This is the absolute order I propose in this situation.

           

            ELON D.P.: I concur.

           

            WALLENSTEIN J.: I concur.

           

            Decided as stated in the President's decision.

           

            Judgment given today, the 27th of Tammuz 5749 (July 30, 1989).

HCJ 785/87

HCJ 845/87

HCJ 27/88

           

ABD AL NASSER AL AZIZ ABD AL AZIZ ABD AL

    AFFO ET AL                                                                                               

v.

COMMANDER OF I.D.F. FORCES IN THE WEST BANK

H.C. 785/87

 

ABD AL AZIZ ABD ALRACHMAN UDE RAFIA  ET AL                        

v.

COMMANDER OF I.D.F. FORCES IN THE GAZA STRIP

H.C. 845/87

 

J'MAL SHAATI HINDI                                             

v.

COMMANDER OF I.D.F. FORCES IN THE JUDEA AND

   SAMARIA REGION

H.C. 27/88

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[April 10, 1988]

Before Shamgar P., Ben-Porat D.P., S. Levin J., Bach J. and Goldberg, J.

 

 

 

Editor's synopsis -

            The military commanders of the various occupied territories, acting  pursuant to the Defence (Emergency) Regulations, 1945, ordered the deportation of the Petitioners from the territories, on the ground that they are involved in hostile activities against the State of Israel, such as to endanger the security of the state and the public peace. The Petitioners contend that the deportation orders violate Article 49 of the Fourth Hague Convention of 1949. Sitting in a panel of five Justices, the court denied the petitions, holding:

           

1.  Article 49 of the Fourth Geneva Convention must be interpreted against the background of the outrages perpetrated by the Nazis against civilian populations during World War II, the recurrence of which it was intended to prevent. Article 49 protects civilian populations from arbitrary conduct of the occupying power and from inhuman treatment. It does not apply to the deportation of individuals, under law, for legitimate reasons, such as protection of the public peace. A literal interpretation of the Convention so as to forbid deportation of protected individuals absolutely and in all circumstances, would yield unreasonable results. For example, an illegal infiltrator could not be expelled after he has completed service of his sentence for the infiltration. Nor could the authorities extradite a wanted person to another country in order to stand trial for crimes charged.

 

2.  Israeli law distinguishes between international customary law and international conventional law. International treaties that create new rights create such rights and obligations between states, but do not confer them upon individuals. Such treaties do not become part of the country's municipal law in the absence of legislation to such effect by the Knesset. On the other hand, the customary international law is part of the country's municipal law. Article 49 of the Fourth Geneva Convention is part of the international conventional law, not the customary law, and, therefore, is not part of Israeli municipal law.

 

3.     The evidence supports the Respondents' findings that the Petitioners are engaged in hostile activities against the security of the state and the public peace.

 

            Justice Bach joined in the court's decision, dissenting, however, from that portion of the opinion which interpreted Article 49 of the Fourth Geneva Convention so as to limit its application to the arbitrary deportation of protected persons for inhuman ends. Agreeing that the Convention was prepared against the background of the Nazi horrors perpetrated against civilian populations, he thought, nonetheless, that the broad language of Article 49 creates an absolute prohibition against expelling a protected person from occupied territory. He agreed, however, that Article 49 of the Geneva Convention is not reflective of international customary law but is rather part of international conventional law and, therefore, it is not part of Israeli municipal law.

           

           

Israel cases referred to:

[1] H.C. 606,610/78, Ayub  et al. v. Minister of Defence  33P.D.(2)113.

[2] H.C. 97/79, Abu  Awad  v. Military Commander of the Judea  and Samaria Region 33P.D.(3)309.

[3] H.C. 698/80, Kawasma  v. Minister of Defence  35P.D.(1)617.

[4] H.C. 629/89, Mustafa  v. Military Commander of the Judea  and Samaria Region 37P.D.(1)158.

[5] H.C. 513,514/85, M.A.256/85, Nazal v. Military Commander of the Judea and Samaria  Region 39P.D.(3)645.

[6] C. A. 31/63, Feldberg  v. Director for the Purposes of the Land Appreciation Tax Law, 17P.D.1231.

[7] H.C. 442/71, Lansky  v. Minister of interior  26P.D.(2)337.

[8] Cr. A. 94/65, Turjeman  v. Attorney General 19P.D.(3)57.

[9] C. A. 165/82, Kibbutz Hatzor  v. Rehovot  Assessment Officer 39P.D. (2)70.

[10] C.A. 282/73, Haifa  Assessment Officer  v. Arison  25P.D.(1)789.

[11] H.C. 47/83, Tour Aviv (Israel) Ltd. v. Chairman of the Restrictive Trade Practices Control Board 39P.D. (1)169.

[12] Cr. A. 174/54, Stampfer  v. Attorney-General 10P.D.5.

[13] Cr. A. 336/51, Eichmann  v. Attorney-General 16P.D.2033.

[14] C.A. 25,145,148/55, Custodian of Absentee Property v. Samara 10P.D.1825.

[15] Cr. A. 131/67, Kamiar v. State of Israel  22(P.D.)(2)85.

[16] H.C. 69,493/81, Abu Aita et al. v. Military Commander of the Judea and Samaria Region et al. 37P.D.(2)197; S.J. vol. VII, p. 1.

[17] H.C. 393/82, J'mait Askan ... Cooperative Society Registered with the Judea and Samaria Region Command Headquarters v. Military Commander of the Judea and Samaria  Region 37P.D. (4)785.

[18] H.C. 390/79, Diukat  v. State of lsrael  34P.D.1.

[19] Motion 41/49, "Shimson" Ltd. v. Attorney  General 4P.D.143.

[20] C.A. 65/67, Kurz  v. Kirschen  21P.D.(2)20.

[21] H.C. 103/67, "American-European Bet-El Mission" v. Minister of Welfare 21P.D.(2)325.

[22] H.C. 102,150,593,690/82, 271/83, Tzemel v. Minister of Defence 37P.D.(3)365.

[23] H.C. 574/82, El Nawar  v. Minister of Defence  39P.D.(3)449.

[24] C.A. 303/75, State of Israel  v. Raphael 29P.D.(2)601.

[25] H.C. 609/82, Fantomb Overseas (1981) Ltd. v. Investments Center 38P.D.(1)757.

[26] C.A. 586,626/82, Insurance Corporation of ireland Ltd. v. State of Israel - Ministry of Communications; El-AI lsrael Airlines Ltd. v. Insurance Corporation of Ireland 41P.D. (2)309.

 

American case referred to:

[27] Ex  parte Quirin 317 U.S.1(1942).

 

English cases referred to:

[28] Reg. v. Governor of Brixton Prison. Ex parte Soblen  [1963]2Q.B.243(C.A.).

[29] Porter v. Freudenberg  [1915]1K.B.857(C.A.).

[30] West Rand Central Gold Mining Company v. Rex. [1905]2K.B.391.

[31] The Cristina  [1938]1 All E.R.719(H.L.).

[32] Chung  Chi  Cheung  v. The King [1939]A.C.160(P.C.).

 

International cases referred to:

[33] Re  Rizo and Others [1952]Int'l. L.R.478.

[34] I.M.T. Judgment [1946] Cmd.6964.

 

L. Tzemel  for Petitioner no. 1, H.C. 785/87;

D. Kretzmer  for Petitioner no. 2, H.C. 785,845/87;

D. Nasser for Petitioner no. 1, H.C. 845/87;

G. Bulus  for Petitioner in H.C. 27/88;

D. Beinish, Deputy State Attorney, and N. Arad, Director of High Court Department, State Attorney's Office, for Respondents.

 

 

JUDGMENT

 

          SHAMGAR P.: 1. These three petitions, which we have heard together, concern deportation orders under Regulation 112 of the Defence (Emergency) Regulations, 1945, which were issued with respect to each of the Petitioners by the Commander of I.D.F. Forces in his region (with respect to the Petitioners in H.C. 785/87 and H.C. 27/88, the Commander of I.D.F. Forces in the Judea and Samaria Region; with respect to the Petitioner in H.C. 845/87, the Commander of I.D.F. Forces in the Gaza Strip).

 

            The Association for Civil Rights in Israel joined the petitions in H.C. 785/87 and 845/87.

           

            This court has issued an interim order staying the execution of the deportation orders.

           

            The parties have agreed to argue these petitions as if an order nisi had been given in respect of each of them.

            On 13 March 1988 we decided to dismiss the petitions and to set aside the orders issued in consequence thereof. The following are the reasons for the judgment.

           

            2. In these petitions general legal arguments were raised concerning the legality of a deportation order under public international law and under the law applying in the above-mentioned territories. Also, objections were raised regarding the substantive justification for issuing a deportation order in each of the cases upon which these petitions are based.

           

            As for the order in which these submissions will be discussed, we shall first examine the general contentions which essentially negate the existence of a legal basis for the issue of a deportation order against a resident of the above-mentioned territories. For if the conclusion is that under the relevant law the issue of a deportation order is forbidden, then obviously there will be no need to examine whether a substantive justification exists for the issue of the specific order, through the application of this question to the factual data pertaining to each of the Petitioners. Therefore, we will now turn to the general contentions which are common to the three petitions.

           

            3.(a) The Petitioners raised, as a central reason for their petitions, the argument that Article 49 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: the Fourth Geneva Convention) forbids the deportation of any of the Petitioners from Judea, Samaria or the Gaza Strip, as the case may be. According to the argument, an absolute prohibition exists, with regard to a resident of one of the territories occupied by the I.D.F., against the application of Article 112 of the Defence (Emergency) Regulations, 1945 or of any other legal provision (if such exists) whose subject is deportation. This is due to the provisions of the above-mentioned international convention which, according to the contention, should be seen as a rule of public international law, binding upon the State of Israel and the Military Government bodies acting on its behalf and granting those injured the right of access to this court.

           

            The legal premise underlying this argument has been raised time and again before this court and has been discussed either directly or partially and indirectly in a number of cases - see principally: H.C. 606,610/78 [1], 121; H.C. 97/79 [2], 309; H.C. 698/80 [3] H.C. 629/82 [4], at 161; H.C.513,514/85 and M.A. 256/85 [5]. In order to complete the legal picture, see also Professor Y. Dinstein's article "The Rafiah Salient Judgment" 3 (1973) Iyunei  Mishpat , 934.

           

            This court's statement in H.C. 513,514/85 and M.A. 256/85 [5] mentioned above is apposite to the present matter, allowing for slight changes deriving from the material itself. It is said at pp. 649-650:

           

As a sort of general introduction to an analysis of the Petitioners' arguments, it should be noted that the first argument mentioned above has been raised already - with slight variation - in a hearing before this court in H.C. 698/80 at p. 623 and was rejected. The repeated raising of this and other arguments regarding the legal validity of Regulation 112 and the force and nature of Article 49 of the Fourth Geneva Convention stems from the premise - founded in error - that this court has not already decided the issue whether it is possible to implement Regulation 112 in the Judea and Samaria Region, and that this court has not yet expressed itself on both the reasons based on the internal legislation of the Region and the those resting on rules of public international law. As was said, the proposition of the Petitioners 'learned counsel, that these issues have not been resolved, is founded in error. This court has dealt with the above legal questions at length both in H.C. 97/79, and in H.C. 698/80 mentioned above, which completed the examination of a series of contentions that had not been raised or discussed in H.C. 97/79. The decision in H.C. 698/80 was in fact rendered by the majority opinions of Landau P. and Kahan J. as against the dissenting opinion of Cohn D.P. But this of course does not detract from its validity, nor does it nullify the status of the judgment as a substantive decision on the arguments. We shall follow in its path as long as no weighty material reasons are presented to us justifying a change in the law. That is the difficulty. The decisive majority of the submissions heard by us were nothing more than a quasi-repetition of what has already been argued before this court on the previous occasions mentioned above and which has already been dealt with explicitly and in detail. If we have listened patiently to a repetition of these long arguments, it is mainly because more than five years have passed since the authority to deport was last exercised, and we thought it proper to examine carefully whether in the meantime there has not been any legal development bearing on our case or any renewed argument affecting the matter before us, which would have, no doubt, far-reaching personal consequences for the Petitioners. To summarize, in the judgments of this court in H. C. 97/79 and H.C. 698/80 a clear position was taken on the validity of Regulation 112 in Judea and Samaria after the end of the Mandate, based on the later Jordanian legislation. All aspects of the issue were discussed and decided there.

 

            (b) As was stated, the Petitioners' submission rests first and foremost on the provisions of Article 49 of the Fourth Geneva Convention. The court's attitude thereto was fully detailed in H.C. 97/79 [2] and in H.C. 698/80 [3], and has been already mentioned in H.C. 513,514/85 [5], the opinions expressed therein are acceptable to me on the issue before us and I see no reason to add to what has already been said by this court. As may be recalled, the statements of Landau P. in H.C. 698/80 [3] complement those of Sussman J. in H.C. 97/79 [2], so far as they concern certain legal aspects of the provisions of the 1952 Jordanian constitution, whereas the decision in H.C. 513,514/85 and M.A. 256/85 [5] touches on additional alternate objections, which were raised regarding the above-mentioned legal question.

           

            Since there have been no developments of any possible bearing on the assessment of the legal situation, as expressed in various ways in the above-mentioned judgments, I would see no need to go back and deal with the varied reasons for the interpretation of Article 49 above, which have already been presented in the previously cited decisions, to which I subscribe. Nonetheless, I have read the remarks of my esteemed colleague, Bach J., and as he does not tend to follow the legal paths that were paved in H.C. 97/79 and H.C. 698/80, and as I disagree with his approach to this issue, I will present the gist of my view on this subject.

           

            Afterwards I will also deal with the new argument raised by the Petitioners' learned counsel regarding the assimilation into our law of some of the rules of conventional international law.

           

                        (c) My comments will relate to the following areas:

           

(1) The accepted approach to interpretation under internal Israeli law;

 

(2) Principles of interpretation applicable to international conventions;

 

(3) Interpretation of the above-mentioned Article 49.

 

            (d) The accepted interpretation in our law. We accept that the interpretive rules applied in a given legal system are peculiar to that system and are not necessarily identical with those applied in another legal system. In the words of Justice Barak in Judicial Discretion (Papyrus, 1987), at pp. 339-340:

           

Every legal system has its doctrine of interpretation. The interpretive approach of English law (based in great measure on the language of the law, and where importance is attached to the purpose of the legislation, it can be discovered mainly from the language of the law), differs from that in American law (based on the purpose of the law, which may be learned also from sources outside the law itself)....Rules of interpretation are legal rules which are based on logic, but not solely on logic. Thus for instance, the answer to the question whether the purpose of the law is to be sought only through the language of the law, is not an answer which can be given based solely on logic.... Deciding from amongst the different possibilities is not a matter of logic, but of legal policy. At times this decision is made by the legislator himself, who determines the rules of interpretation that are to be followed. Generally legislators do not operate in this manner and entrust the formation of rules of interpretation to the judiciary.

 

            The author also refers in this regard to W. Friedman, "Legal Philosophy and Judicial Lawmaking", 61 Colum.  L. Rev. (1961) 821.

           

            The method of interpretation which our courts have applied for quite some time is that which attributes to the wording of the law the meaning which realizes its purpose; this is the interpretative method based on the legislative purpose which has recently received a thorough and penetrating examination in Justice Barak's book cited above.

           

            The formation of rules of interpretation is not effected in a vacuum; rather it is adapted, as stated, to the system of law in which and from which these rules stem. The application of the said rules, in any concrete case in which the court is asked to give content to an enactment warranting interpretation, is carried out, as is accepted here, by applying judicial discretion. Applying judicial discretion is necessary, mainly, where clarification of the wording of an enactment open to interpretation is required in the context of a decision regarding the weight to be given the words of the text, in determining the definition and scope of the legislative purpose. Justice Barak writes about this in his book (supra at pp. 341-342) :

           

            Any doctrine of interpretation must assume as its starting point the doctrine of linguistics ... however, and as we have seen, language is generally not unambiguous. It has multiple meanings, is unclear and consists of "open tissue". At times, words are given an accepted and regular meaning, an almost primary meaning. But for the most part words also have a special and exceptional meaning, a secondary meaning as it were. The doctrine of interpretation must set standards by which one meaning is chosen over another. From the standpoint of language, one meaning does not have preference over another. Any meaning which is possible in a semantic sense is also permissible semantically. It would be a mistake to base a doctrine of legal interpretation on dictates, as it were, of linguistics.

 

            These conclusions are drawn from this court's consistent approach, which has been expressed in a series of judgments, of which those cited below are but a few.

           

            Thus Cohn J. said in C.A. 31/63 [6], at 1235:

           

            ...the correct interpretation of a given provision in the law stems not only - though primarily - from the language of the provision, but also from the purpose of the law, from the flaw which it comes to correct, and from the circumstances surrounding it.

(Emphasis added - M.S.) See also the comments of Agranat P: on the same subject in H.C. 442/71[7], at p. 349:

 

Each Law has its purpose, in the light of which the given phrase should be interpreted.

 

            In other words, the same word can have different meanings in different laws. *

           

            Sussman J. (as his title then was) stated in Cr.A. 94/65 [8], at p. 80:

           

We have learned that the meanings of words are many, and they change from law to law and from issue to issue. We do not begin with the axiom that every word or text has but one fixed definition; rather when we deal with interpretation we address the question: What is the meaning of a given term in a law in the context in which it appears? Since we have thus phrased the question, it naturally follows that the judge interprets the words with the purpose of the legislation as his guiding light and only in this way can he faithfully serve the legislator. In a similar vein Judge Learned Hand said in Borella  v. Borden Co. (1944):

 

We can best reach the meaning here, as always, by recourse to the underlying purpose, and with that as a guide, by trying to project upon the specific occasion how we think persons, actuated by such a purpose, would have dealt with it, if it had been presented to them at the time.

(Emphasis added M.S.)

 

            In other words, language does not govern the purpose, rather it serves it. The law is an instrument for realizing legal policy, and therefore interpretation needs to aim toward emancipating the wording from its semantic bonds, were these to distance it from the legislative purpose which the words are intended to realize. Thus, for example, the legislative purpose may be reflected in the description of the legal situation which existed on the eve of the legislation being introduced (C.A. 165/82 [9], at 74).

           

            The following remarks of Asher J. in C.A. 282/73 [10] at p. 793 express the same approach; he says:

           

The same word, which in every-day language, is defined in the this nuance is even apt to change from law to law, and from matter to matter within the same law. Therefore it is not sufficient as counsel for the appellant claims, to rely upon a clarification of the "regular" meaning of an expression; rather, the definition must be determined from a variety of factors, including the context in which the legislator used the expression, and the purpose behind the enactment being defined.

(Emphasis added - M.S.)

 

            The approach which attaches central importance, both to the legal substance of the issue as tested by the lancet of the interpreter, and to the purpose which the legal provision aims to serve, is not satisfied with the apparently clear and simple meaning of the language of the law. Barak J. commented on this in words appropriate to our subject in H.C. 47/83 [11]. He states at p. 176:

           

Every law, including that whose language is "clear", requires interpretation. The law is "clear" only after the interpretation has clarified it. It is not clear without interpretation. Words by themselves are not "clear". In fact there is no less clear a statement than that words are "clear".

 

            In a nutshell, what has been said until now may be summarized thus: We have referred to the guidelines used in establishing the relation between the literal meaning of the written word and the correct legal interpretation, as far as this applies to our legal system. Interpretation in this sector seeks, as was said, to pave the way to a revelation of the legislative purpose. Setting the purpose in this form is directed to the sources which one may turn to in order to ascertain the purpose. It is customary in this matter to examine more than the text and, inter alia , also the legislative history; the legal and substantive context, and the meanings stemming from the structure of the legislation (see ibid., at 175).

 

            (e) Interpretation in Public International Law. Now the second question arises, i.e. what are the rules of interpretation relevant to our matter that are used in public international law?

           

            Israel has not yet ratified the Vienna Convention of 23 May 1969 on the Law of Treaties, which came into force in 1980 for those who joined it (hereinafter: the Vienna Convention). As an aside, what is said in Article 4 of the above Convention regarding non-retroactivity, in any case fundamentally limits the provisions relative to the question before us. Nonetheless, there is value, even if only for the sake of comparison, in an examination of the provisions of the Convention regarding interpretation.

           

            On the issue of interpretation, Articles 31 and 32 of the said Convention state :

           

31. General rule of interpretation

           

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

 

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes :

 

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

 

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

 

32. Supplementary means of interpretation

 

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

 

(a) leaves the meaning ambiguous or obscure; or

           

(b) leads to a result which is manifestly absurd or unreasonable.

 

            It seems that from the first part of Article 31(1) one could conclude that the Convention sought to support that school of interpretation which emphasizes the text, as opposed to the alternative school of interpretation, no less accepted, which focuses on the intentions of the draftsmen of the Convention (see I. Brownlie, Principles of Public International Law (Oxford, 3rd ed., 1979) 624). Yet, the second part of Article 31(1) and Article 32 form the bridge to the other theories of interpretation, also familiar to us from the earlier examination of our municipal law. That is, the provisions of the Convention leave ample space to enable examination of the purpose which led to its making. It is even possible to reflect upon the preparatory work describing the background to the making of the Convention, as material which can complement the plain understanding of the text, its purpose and scope of application.

           

            The accepted view is, as was stated, that one of the contributions of the Vienna Convention in this context was expressed in the creation of a closeness and link between the two alternative theories of interpretation. In any event, an examination of the legislative purpose - which is one of the applicable methods of interpretation, unrelated to treaties - is among the recognized principles of interpretation. In the words of J. G. Starke (An Introduction to International Law (London, 8th ed., 1977) at p. 510):

           

The related rules concerning the intention of the parties proceed from the capital principle that it is to the intention of the parties at the time the instrument was concluded, and in particular the meaning attached by them to words and phrases at the time, that primary regard must be paid. Hence, it is legitimate to consider what was the 'purpose' or 'plan' of the parties in negotiating the treaty.

 

(Emphasis added - M.S.)

 

See also: Re Rizzo and Others (1952) [33] at p. 481.

 

            Starke stresses the issue of the intention of the parties to the treaty at the time of its conclusion and refers in particular to the meaning of words and phrases, as intended at the time of the treaty's conclusion.

           

            The Vienna Convention did not purport to list comprehensively and describe all rules of interpretation, which, at times, suggest, in the words of Brownlie (supra, at 624), different and varying solutions which are, as he describes them, "general, question-begging and contradictory".

           

            Starke explains that in order to set out a method of interpretation (supra, at 511):

           

treaties should, it is held, be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portions of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing international law. Also applying both reasonableness and consistency, since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty save in the most express terms, ambiguous provisions should be given a meaning which is the least restrictive upon a party's sovereignty, or which casts the least onerous obligations...

(Emphasis added - M. S.)

 

            The aim, according to Starke, is to interpret restrictively any provision in a treaty which limits the authority of the states.

           

            Furthermore, it is perfectly clear that any treatment of the subjects of international law, which earn such multifaceted and even contradictory interpretations, cannot be accomplished with the same exacting standards for which we strive in municipal law.

           

            The caveat, by which one is to distinguish between the interpretive approach used in municipal law and that practised in public international law, was presented in an especially detailed and instructive way in the research of Professor Mustafa Kamil Yasseen on interpretation of treaties found in volume 151 of the writings of the Academie De Droit International (M. K. Yasseen, "L'Interpretation des Traites d'apres La Convention de Vienne Sur Le Droit des Traites", 151 Recueil Des Cours,  (1976) 1, 10). He writes:

           

7. La methode d'interpretation peu ne pas etre la meme, elle peut varier selon une serie de considerations; elle est commandee surtout par la conception qu'on a de l'interpretation, la nature de l'instrument a interpreter et les caracteristique de l'ordre juridique dont il s'agit.

 

          8. Aussi, en ce concerne les traites la methode d'interpretation doit viser a exercer une fonction declarative et non creatrice, elle doit prendre en consideration que le traite est une acte de volonte qu'il n'est pas un acte unilateral, que les parties au traites sont des Etats souverains qu'il ne s'agit ni d'une contrat entre individus, ni d'une, loi de droit interne. Enfin cette methode doit tenir compte des caracteristiques de l'ordre juridique international, ou, le formalisme n'est pas de rigueur, ou les Etats jouissent d'une grande liberte, ou ils sont aussi bien les auteurs, que les destinaires des traites, ou le choix des moyens pacifiques des reglements des differends depend en principe de la volonte des Etats. Il ne serait donc pas etonnant que la methode d'interpretation du traite differe de celle de la loi et de celle du contrat.

 

          And freely translated: The method of interpretation cannot be uniform and identical and it may change in accordance with a series of factors. It is fundamentally dictated by the approach of the interpreter to interpretive methodology, by the substance of the instrument being interpreted, and by the characteristics of the particular field of law (i. e. public international law- M. S.) with which one is dealing. This and more, as far as treaties are concerned, a method of interpretation must see itself as a declarative act and not as a formative one (i.e. not judicial legislation - M.S.). The method must take into account that the treaty is an act stemming from the free will of the treaty-makers, and that it is not a one-sided act; that the parties to the treaty are sovereign states, and that it is not a contract between individuals, nor the internal law of the state. Lastly this method must keep in mind the characteristics of the international legal order, a field in which formalism does not have the upper hand, a field in which states enjoy a great deal of freedom of action, a field in which states are not only parties to a treaty, but also the ones to whom the treaty is directed (i.e. the states must be its executors - M.S.), and a field in which the preference for peaceful means to settle disputes depends upon the free will of states. Therefore, it is not surprising that the method of interpreting a treaty is different from that applicable to a law or a contract.

         

          Professor Yasseen's approach is not unique; in the essays of scholars in the field of international law, one can find more than one instance of a tendency to stress the cognitive image of the rules of public international law, and mixing the desirable with the actual is not uncommon. Yet it is also possible to find a sober and realistic viewpoint, such as that of Professor Yasseen, running through the legal literature. In this context O'Connell states in International Law (London, vol.1, 1965) XII:

         

The legal practitioner who is unaware of the theoretical structure of the subject is likely to be misled into supposing that the rules of international law are more concrete and more absolute than they really are.

           

            As a footnote to these remarks, one can cite an obvious example of the diverse and non-uniform application of those rules of international law that should theoretically apply in an identical manner in identical situations: The victorious Allies in World War II, at the time justifiably viewed the Annex to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (hereinafter: the Hague Regulations) as binding customary international law (see IMT Judgement (Nuremberg,1946) Cmd. 6964 at 65). At the same time they saw themselves free of the obligation to act in accordance with those same Regulations following the occupation of Germany. They based themselves on the Debellatio (subjugation) claim (see G. Schwarzenberger, International Law (London, vol. 2,1968) 167, 467; L. Oppenheim, International Law (London, 7th ed. by H. Lauterpacht, vol. 2, 1952) 603). I see of course no reason to take a stand here regarding these approaches to the application of the Hague Regulations. I mentioned the interpretation which adapts itself to changing circumstances only as a supplement to the above-mentioned theories of Starke. To broaden the picture on the diverse application of these norms, I will add that the German jurists tended not to accept the above legal interpretation of the Allies on the effect of the subjugation in 1945 on the application of the Hague Regulations. Yet it has become evident that during the Allies' military rule of the Rhineland (1920-30), it was the German jurists of that generation who in their essays held that the Hague Regulations were not applicable to the Allied military rule of the said territory (see Fraenkel, Military Occupation and the Rule of Law (London, 1944) 188,189).

           

(f) The treatment of the questions of interpretation in our internal law and in public international law may be summarized by mentioning the conclusion, that not for naught has the subject before us been examined in H.C. 97/79 [2] in the light also of its legislative purpose. This approach was necessitated by the method of interpretation customary in our legal system and by the doctrines of interpretation customary in public international law. As was already mentioned, the two systems do not maintain the exclusiveness of the literal method of interpretation, nor even a preference for it. Moreover, when for the purpose of the issue before us we adopt the interpretive approach as expressed in the specific area of law here discussed, namely public international law, we should recall Professor Yasseen's interpretive guidelines and the remarks of Starke mentioned above, from which emerges, inter alia, a stand rejecting the constriction of state authority and rejecting formalism, or an approach which ignores the special qualities of the field of law that we are discussing.

 

            We shall now proceed to the application of the rules of interpretation to the issue before us.

           

            (g) Article 49 of the Fourth Geneva Convention. What is the dispute regarding the interpretation of the above-mentioned Article 49.

           

            The relevant portions of the Article state:

           

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

 

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand....

 

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

 

            In H.C. 97/79 [2] cited above, Sussman P. comments (at pp. 316-317) regarding the argument that the application of Regulation 112 of the Defence (Emergency) Regulations is contrary to Article 49 of the Fourth Geneva Convention:

           

Neither have I found any substance in the argument that the exercise of the above-mentioned Regulation 112 contradicts Article 49 of the Fourth Geneva Convention of August 1949 Relative to the Protection of Civilian Persons in Time of War. It is intended, as Dr. Pictet in his commentary on the Convention (p.10) writes, to protect civilians from arbitrary action by the occupying army, and its purpose is to prevent acts such as the atrocities perpetrated by the Germans in World War II, during which millions of civilians were deported from their homes for various reasons, generally to Germany to serve the enemy in forced labour, along with Jews and others who were deported to concentration camps for torture and extermination.

 

It is clear that the above-mentioned Convention does not detract from the obligation of the Occupying Power to preserve public order in the occupied territory, an obligation imposed by Article 43 of the 1907 Hague Convention, nor does it detract from its right to employ the necessary means to ensure its own security; see Pictet, Humanitarian Law and the Protection of War Victims,  at p. 115...

 

It has nothing whatsoever in common with the deportations for forced labour, torture and extermination that were carried out in World War II. Moreover, the intention of the Respondent is to place the Petitioner outside the country and not to transfer him to the country, to remove him because of the danger that he poses to public welfare and not to draw him nearer for the purpose of exploiting his manpower and deriving benefit from him for the State of Israel.

 

Landau P. again referred to this subject in H.C. 698/80 [3] mentioned above (at pp. 626-628). The following are the relevant passages:

In H.C. 97/79 at p. 316, Sussman P. explained the background to the enactment of Article 49: to prohibit the acts of arbitrary deportation, based on the experience of the atrocities in the mass deportation of Jews to labour camps and death camps during the Holocaust of European Jewry. It goes without saying that there is no similarity between these atrocities and the deportation of people who endanger security in an occupied territory. Article 49 does not detract from the obligation of an Occupying Power to preserve public order in the occupied territory, as required by Article 43 of the 1907 Hague Convention, nor does it detract from its right to take necessary measures to preserve its own security (ibid., at 316).

 

With the dismissal of the submission founded on Article 49 of the Fourth Geneva Convention in H.C. 97/79 , the Petitioners herein were not granted an order nisi on those grounds during the first stage in their matter in H.C. 320/80. This time Ms. Langer has more forcefully repeated that same argument. In her opinion, the court in H.C. 97/79 ignored the difference between the first and second paragraphs of said Article 49: Whereas the prohibition against evacuating civilian populations generally carried out by displacement within the occupied territory is permitted for purposes of the population's security or for imperative military reasons, as is stated in the second paragraph of the Article, the prohibition against deportation beyond the border is absolute, "regardless of their motive" as is stated in the latter part of the Article. The book The Geneva Convention of 12 August 1949, Commentary (Geneva, ed. by J.S. Pictet, vol. IV, 1958) 279 is cited. Regarding the prohibition against deportations, it states:

 

The prohibition is absolute and allows of no exceptions, apart from those stipulated in paragraph 2.

 

Further, in the commentaries on Article 78 which deal with assigned residence and internment of persons endangering public security, it states (ibid., at 368):

 

As we are dealing with occupied territory, the protected persons concerned will benefit by the provisions of Article 49 and cannot be deported; they can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself.

 

It has been argued before us that one must distinguish between the reason for the prohibitions in Article 49 of the Convention, which was, as was said, founded in the memory of those atrocities, and between that which stems from the unambiguous wording of the prohibition in the first paragraph of the Article, which applies, according to its language, not only to mass deportation, but also to deportation of individuals. As opposed to this, one can say that the deportation of individuals was also carried out occasionally under the Hitler regime for the realization of the same policy which led to mass deportation, and therefore none of the provisions of Article 49 are in any way applicable to the deportation of persons who endanger public welfare - as this court has ruled in H.C. 97/79. In the words of J. Stone in his lecture entitled "No Peace No Law in the Middle East" (Sydney, 1969), at p. 17:

 

...It seems reasonable to limit the sweeping literal words of Article 49 to situations at least remotely similar to those contemplated by the draftsman, namely the Nazi World War II practices of large-scale transfers of populations, whether by mass transfer or transfer of many individuals, to more hostile or dangerous environments, for torture, extermination or slave labour.

 

But whatever the correct interpretation of the first paragraph of Article 49 of the Convention may be, the Convention, as Article 49 in its entirety, does not in any case form a part of customary international law. Therefore, the deportation orders which were issued do not violate internal Israeli law, nor the law of the Judea and Samaria Region, under which this court adjudicates... Ms. Langer recalled to us a passage from G. Schwarzenberger's book, International Law as Applied by International Courts and Tribunals (London, vol. II, 1968) 165-166, which was cited in the above-mentioned H.C. 606,610/78, at p. 121. The learned writer expresses the belief that the prohibition against the deportation of residents of an occupied territory is but "an attempt to clarify existing rules of international customary law". I assume that here too, the reference is to arbitrary deportations of population, akin to the Hitler regime. If the author was also referring to deportation of individuals in order to preserve the security of the occupied territory, then that is the opinion of an individual author, stated in vague terms with no substantiation whatsoever.

           

            After a detailed analysis of the Petitioners' arguments, Landau P. decided, as quoted above, to accept the more far reaching argument of the State regarding the applicability to our legal system of Article 49, which falls within the realm of conventional law, and therefore saw no need for additional comments on the content of the Article.

           

            At the time no basis was given for the argument that Article 49 expresses a customary rule of international law; and given the material presented to us, the armed conflicts that have occurred since 1949 (India-Pakistan, Cyprus and others) have not brought about legal decisions that would shed a different light on the issue. In any case if there are any, they were not brought to our attention by the parties. We will return to the commentary of Dr. J. Pictet on the reason for the inclusion of Article 49 in the Convention; but regarding his interpretation of the scope of the applicability of the Article, I will already note that it has not been explained why we are to prefer the remarks of Dr. Pictet over, for example, those of Prof. J. Stone.

           

            The background which the draftsmen of the Convention had in mind is clearly reflected in the deliberations of the Geneva Conference. The relevance of the background is twofold: It describes the flaw which the Convention seeks to rectify (H. Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties" 26 Brit. Y.B. Int'l L. (1949) 48, 53 and compare with C.A. 31/63 [6] above); and the purpose that the draftsmen had in mind (O'Connell, supra, at 271; Cr. A. 94/65 [8] cited above and the remarks of Learned Hand J. as there quoted, at 80). It even sheds light on the legal situation for which they strove (C.A. 165/82 [9]). This is also the reason that compelled Landau P. in H.C. 513,514/85 and M.A. 256/85 [5] cited above, to turn to the question of whether the prohibition against deportation is within the realm of law rooted in custom or a conventional innovation.

           

            (h) What were the considerations guiding the draftsmen of the Convention? An examination of Actes de la Conference Diplomatique de Geneve de 1949 (Berne, tome 2) 648, 649, 743, 744, 810, 811, shows unequivocally that in using the term "deportations", the participants in the deliberations referred to deportations such as those carried out during World War II. Thus it is stated for example at p. 810:

           

Bien qu'on se soit prononce a l'unanimite pour condamner les deportations comme  celles  qui  eurent  lieu pendant la derniere guerre, la phrase qui se trouve au debut de l'article 45 [In the draft the current Article 49 bore the number 45 - M.S.] a suscite quelques difficultes, car il etait peu aise de concilier les idees exprimees dans des termes divers, en francais, en anglais et en russe. Finalement, le Comite a decide d'adopter un texte qui interdit les transferts individuels ou collectifs obligatoires ainsi que les deportations de personnes protegees, d'un territoire occupe dans un autre pays, mais qui autorise les transferts volontaires.

(Emphasis added - M.S.)

 

            The Convention draftsmen referred to deportations such as those that took place during the last war and in the framework of the deliberations sought a text that would reflect the ideas that were expressed in different ways and in different languages.

           

            So did Pictet in his article "Convention de Geneve - Protection de Civil" 76 Recuiel des Cours (1950) 1, 96. He pointed to the accomplishments of the Convention in contrast with the situation that prevailed before it, cited the futile attempts of the International Committee of the Red Cross in 1921 to prohibit the execution of hostages and deportations, and described the suffering of the civilian population during World War II:

           

Des centaines de milliers d'entre eux ser virent exposes aux deportations aux prises d'otages, a l'internment dans les camp de concentration, au pires services et a la mort.

 

            In translation: Hundreds of thousands of them were exposed to deportations, to the taking of hostages, to internment in concentration camps, to the most severe brutality and to death.

           

            Article 49, which prohibited deportations was connected therefore with such provisions. As Pictet describes at pp. 109-110:

           

Quand an songe aux millions de personnes transferees de force au cours de dernier conflit et a leurs souffrances physique et morales on ne peut que saluer avec reconnaissance un texte mettant fin a ces pratique inhumaines.

 

            In his words: When one thinks about the millions of people who were forcibly transferred from place to place during the last conflict [i.e. World War II - M.S.], and about their suffering, both physical and moral, one cannot but thankfully bless the text [of the Convention - M.S.] which put an end to these inhuman practices.

 

                      Here then deportations, concentration camps and the taking of hostages were linked together and the word "deportations" was used in the context described above.

         

          Incidentally, parallel to this, Article 34 of the Convention prohibits the taking of hostages, something which Pictet calls "an innovation in international law" ("constitue une innovation dans le droit internationale").

         

          One is not speaking in this regard, not even by inference, about the removal from the territory of a terrorist, infiltrator or enemy agent, but rather about the protection of the entire civilian population as such from deportation, since the civilian population has more and more frequently become a direct victim of war, despite its civilian character and despite its lack of involvement in active fighting.

         

          M. H. Coursier ("Droit Humanitaire: Protection des Personnes Civiles en Temps", 99 Recueil Des Cours (1960) 397, 399) cited the mass attacks against civilians in the context of the situation preceding the development of humanitarian law, when unless expressly prohibited, everything was permitted. He mentions in this context the words of Grotius, according to which:

         

Le massacre des femmes et des enfants est compris dans le droit de la guerre.

         

          (Translation as found in Pradier-Fodere, III ch. 419.) Namely: The massacre of women and children was permissible under the laws of war at the time.

         

          He saw the Convention as a necessity stemming from the numerical increase in civilian victims. In World War I half a million civilians were killed as opposed to nine million soldiers. In World War II a kind of numerical parity was created as 24 million civilians and 26 million soldiers were killed. Coursier mentions the deportations in the context of forced labour, but makes no reference to the broad interpretation which would also apply the deportation prohibition to terrorists or enemy agents, whose deportation is necessary to protect the civilian population, for which the military authority is responsible.

         

          That is also the case in B.M. Jankovici's book "Public International Law" (New York, 1984) 375, 376. In discussing the prohibition against deportation, he refers to the millions of people who were tortured and killed in the concentration camps.

         

          Also F. F. Spangenberg in "Die Zwangsarbeit der Bevolkerung Kriegsbesetzter Gebiete und das Volkerrecht" (Kiel, 1961) (Forced Labour of the Population in an Occupied Territory and The Law of Nations) describes the forced transfers and deportations in the war in connection with Article 49 and points out that -

         

Die "Deportation" als solche ist somit erstmalig absolut verboten.

 

            The reference is to the manner and form of deportation in World War II, about which he writes in his book.

           

            This is also the meaning of the text found in Schlochauer, Worterbuch des  Volkerrechts, De Gruyter (vol. 3, 1962) 560; see the entry entitled "Vertreibung" (Deportation).

           

            R.I. Miller, The Law of War (Lexington) 88, creates the like link between the various tribulations that mankind underwent in World War II, which he details, and the prohibition in Article 49:

           

In World War II at least 5 million persons were deported from occupied territories to Germany as part of the Nazi program of slave labor, persecution and death. Although HR-1907 does not prohibit deportation per se, its articles with respect to the safety and order of the inhabitants and requisitioning of supplies and services lead to the conclusion that forcible deportation is beyond the legitimate activities of an occupying power. The International Military Tribunal and Nuremberg and the Military Tribunals under Control Council Order no. 10, pursuant to their charters that defined "deportation to slave labour or for any other purpose" to be war crimes, held the Nazi deportations to be unlawful.... Nevertheless, forcible deportation alone was held in the Krupp Trial to be a violation of customary law, as well as deportation for an illegal purpose (for example, forced labour in the territory of the occupying power) and deportation that disregards recognized standards of decency and humanity.

 

Accordingly, GC-949 provides that "individual or mass forcible transfers" and deportations of protected persons from occupied territory to the territory of the occupying power, or any other country, are prohibited regardless of motive. The total or partial evacuation of a given area is permitted if the security of the population or imperative military reasons demand.

 

(The emphasis pointing to the causal link is added - M.S.)

 

            On the developing trend in the laws of war to protect the civilian population as such and to try to distinguish effectively between it and the fighters, see also Prof. F. Kalshoven, The Law of Warfare (Leiden, 1973), 28.

           

            W. O'Brien, The Conduct of Just and Limited War (New York, 1981) presents the subject in a similar context, that is, in connection with the harm caused to a civilian population by transferring it from its location and in connection with the exception regarding evacuation of civilians on security grounds or for imperative military reasons:

 

The last specific prohibition of the positive international law jus in bello to be considered, is that against forced displacement of civilians. With respect to international conflict, Article 49 of the 1949 Geneva Civilians Convention flatly prohibits massed forcible transfers or deportations of protected persons to the territory of the occupying power or to any other country, "regardless of their motive". Article 49 then provides that "the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand".Conditions for such a transfer are to be limited to what is unavoidable.

 

            It was also pointed out that the 1949 Geneva Convention was in this respect an improvement on and an extension of the agreement on the protection of civilians signed in Berne on 25 April 1918 between Germany and France, which also included provisions on deportation and forced labour (See Coursier, supra,  at 397).

           

            I would add that joining the subject of "evacuation", as it appears in the second paragraph of Article 49, to the subject of "deportations", where the matter of "evacuation" is given as an exception to the "deportation" prohibition and both are linked by the conjunction "nevertheless", also affects the interpretation of the first paragraph of Article 49. In other words, tying the evacuation of a civilian population or portions thereof, which is permissible under certain circumstances, with deportation of the population, which is prohibited, teaches us also about the substance of the subject in the first paragraph. That is, inter alia, an example of an interpretation "based on the context", to which the Vienna Convention refers.

           

            The placing of the subjects of the mass evacuation of a civilian population as such and the prohibition against deportation, side by side, is also discussed in the works of P. la Pradelle, La Conference Diplomatique Et Les Nouvelles  Conventions de Geneve Du 12 Aout 1949 (Paris, 1951) 66-67, 185 and E. Castren, The Present Law of War and Neutrality (Helsinki, 1984). See also J.A.C. Gutteridge, "The Geneva Conventions of 1949", 26 Brit. Y. B. Int'l L. (1949) 294, 323 n. 3.

           

            The conclusion from everything said above, is that the purpose which the draftsmen of the Convention had in mind was the protection of the civilian population, which had become a principal victim of modern-day wars, and the adoption of rules which would ensure that civilians would not serve as a target for arbitrary acts and inhuman exploitation. What concerned the draftsmen of the Convention were the mass deportations for purposes of extermination, mass population transfers for political or ethnic reasons or for forced labour. This concern is the "legislative purpose" and this is the material context.

 

            It is reasonable to conclude that the reference to mass and individual deportations in the text of the Article was inserted in reaction also to the Nazi methods of operation used in World War II, in which mass transfers were conducted, sometimes on the basis of common ethnic identity, or by rounding up people in Ghettos, in streets or houses, at times on the basis of individual summonses through lists of names. Summons by name was done for the purpose of sending a person to death, to internment in a concentration camp, or for recruitment for slave labour in the factories of the occupier or in agriculture. Moreover, it seems that the summons to slave labour was always on an individual basis.

 

            (i) The gist of the Petitioners' argument is that the first paragraph prohibits any transfer of a person from the territory against his will.

           

            The implications of this thesis are that Article 49 does not refer only to deportations, evacuations and transfers of civilian populations, as they were commonly defined in the period of the last war, but also to the removal of any person from the territory under any circumstances, whether after a legitimate judicial proceeding (e.g. an extradition request), or after proving that the residence was unlawful and without permission (see, for instance, Reg. v. Governor of Brixton Prison Ex parte Soblen (1963)[28], which uses the term deportation, and also Starke, supra, at 386), or for any other legal reason, based upon the internal law of the occupied territory.

 

            According to the said argument, from the commencement of military rule over the territory there is a total freeze on the removal of persons, and whosoever is found in a territory under military rule cannot be removed for any reason whatsoever, as long as the military rule continues. In this matter there would be no difference between one dwelling lawfully or unlawfully in the territory, since Article 49 extends its protection to anyone termed a "protected person", and this expression embraces, according to Article 4 of the Convention, all persons found in the territory, whether or not they are citizens or permanent residents thereof and even if they are there illegally as infiltrators (including armed infiltrators), as also follows from Pictet's remarks (The Geneva Convention of 12 August 1949, Commentary, (Geneva, ed. by J.S. Pictet, vol. 4, 1958) 47).

 

            The Petitioners' submission rests essentially on one portion of the first paragraph of the Article, i.e. on the words "...transfers ... deportations ... regardless of their motive". That is, according to this thesis, the reason or legal basis for the deportation is no longer relevant. Although the Petitioners would agree that the background to the wording of Article 49 is that described above, the Article must now be interpreted according to them in its literal and simple meaning, thus including any forced removal from the territory.

 

            (j) I do not accept the thesis described for a number of reasons:

           

            It is appropriate to present the implications of this argument in all its aspects. In this respect we should again detail what is liable to happen, according to the said argument, and what is the proper application of Article 49 in the personal sense and in the material sense.

           

            Ratione personae is appropriate in reference to the term "protected person", while ratione materiae relates to the following two foundations: "deportation" and "regardless of their motive".

           

            From the personal aspect, Article 49 refers-as was already mentioned, and as is universally accepted - to all those falling under the category of protected persons. This term is defined in Article 4 of the Convention, which in the relevant passage states:

           

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

 

(Emphasis added - M.S.)

 

            The definition employs a negative test, i.e. for our purposes, anyone who is not an Israeli national and is found in a territory occupied by our forces, is "ipso facto a protected person. This includes an infiltrator, spy and anyone who entered the territory in any illegal manner. This interpretation is presented by Pictet in Commentary, supra,  at 47, who in reference to this matter states:

           

The Article refers both to people who were in the territory before the outbreak of war (or the beginning of the occupation) and to those who go or are taken there as a result of circumstances: travellers, tourists, people who have been shipwrecked and even, it may be, spies or saboteurs.

 

(Emphasis added - M.S.)

 

            The acceptance of the argument that the prohibition in Article 49 applies, whatever the motive for its personal application, means that if someone arrives in the territory for a visit of a limited period, or as a result of being shipwrecked on the Gaza coast, or even as an infiltrator for the purpose of spying or sabotage (and even if he is not a resident or national of the territory, for that is not a requirement of Article 4), it is prohibited to deport him so long as the territory is under military rule. In other words, the literal, simple and all-inclusive definition of Article 49, when read together with Article 4, leads to the conclusion that the legality of a person's presence in the territory is not relevant, for his physical presence in the territory is sufficient to provide him with absolute immunity from deportation. According to this view, it is prohibited to deport an armed infiltrator who has served his sentence.

 

            In order to demonstrate the implications of the Petitioners' thesis, let us presume a set of theoretical circumstances: In Ex  parte  Quirin  [27], the U.S. Supreme Court heard the appeals of six Germans, former residents of the United States, who landed on the American coast during World War II in order to carry out acts of sabotage and spying. They were all sentenced to death in 1942.

 

            The event took place in the territory of the United States; but had a similar incident occurred in an occupied territory (e.g. one of the islands held by the United States following World War II as occupied territory) after 1949, and it was decided not to execute the terrorists but to deport them back, whether in the framework of an exchange or in some other way, this would constitute, as it were, a serious violation of the Fourth Convention (Article 147). It is superfluous to add that the return of a deportee to his country of origin is not always done in accordance with his wishes, and the post-World War II examples of this abound. There is no need to go as far as the United States in order to bring examples of infiltration for sabotage purposes, and that example was intended only to illustrate the point. In any event from the thesis offered by the Petitioners, it would follow that an infiltrator for sabotage purposes could not be deported before or after serving his sentence. The same would be true, according to this approach, of a person who came for a visit over the open bridges, yet stayed beyond the expiration of his permit. The literal and simple interpretation leads to an illogical conclusion.

 

            (k) From here we shall proceed to the essence of the concept "deportation", used in the Article. It is my opinion that, in accordance with the applicable rules of interpretation, one should not view the content of Article 49 as anything but a reference to such arbitrary deportations of groups of nationals as were carried out during World War II for purposes of subjugation, extermination and for similarly cruel reasons.

 

            If, on the other hand, one accepts the proposed interpretation of the Petitioners, according to which deportation means any physical removal from the territory, then the above would apply, for instance, to deportation for the purposes of extradition of the protected person, for this too requires removing a person from the territory. Laws, judicial decisions and legal literature use, in the context of extradition, the term deportation to refer to the stage of carrying out the extradition or the rendition. A murderer who escaped to the occupied territory would have a safe haven, which would preclude his transfer to the authorized jurisdiction. As we have already shown, in light of what is said in Article 4 of the Convention, no relevance is attached to the nationality or domicile of a protected person, and the mere presence in an occupied territory of one who is not a national of the occupying state is enough to qualify him as a protected person. (The subject of the applicability of conventions in a territory under military rule is discussed, inter alia, in T. Meron's illustrative article, "Applicability of Multilateral Conventions to Occupied Territories" in Military Government in the Territories Administered by Israel 1967-1980 (Jerusalem, vol. 1 ed. M. Shamgar, 1982) at 217, 218 no. 8. The idea that a broad definition of Article 49 could prevent extradition is discussed in New Rules for Victims of Armed Conflicts by M. Bothe, K. J. Partsch, W. A. Solf (Hague, 1982) 693, in an examination of the Geneva Protocols of 1977.)

 

            (l) Regarding the issue before us, the Petitioners have directed our attention to the remarks of Pictet in Commentary, supra, at 368, who adopts the literal interpretation, according to which all deportations are prohibited no matter what the reason. One should see this interpretive view, which would apply Article 49 to as broad a group of circumstances as possible, in its context and within its limits. The desire for a literal and simple meaning, which may find expression in scholarly opinions in professional literature, does not bind the courts. Not only are there other and contradictory viewpoints (see in this matter the remarks of Stone, which were quoted in Landau P.'s judgment in H.C. 698/80 [3]), but, more essentially, the court deals with the law as it exists and clarifies the meaning of a law or of a treaty, as the case may be, by adopting accepted rules of interpretation (see in this respect Lauterpacht, supra, at 80).

           

            Were we to adopt the rules of interpretation used in our law*, we could not accept the thesis proposed by the Petitioners. The Court would consider the flaw which the Convention was intended to correct (C.A. 31/63 [6] cited above); would examine the material context and the structure of Article 49, which in its other provisions refers clearly and openly to evacuations and transfers of population (Cr.A. 94/65 [8], C.A. 282/73 [10], and H.C. 47/83 [11]), would attempt to lift the veil from over the legislative purpose in order to adopt it as a standard of interpretation (C.A. 165/82 [9] cited above); and would be wary of and refrain from the adoption of a literal interpretation which is, so to speak, simple but in law and in fact so simplistic that it leads the language of the law or the Convention, as appropriate, to a range of applicability that confounds reason (Barak, in his above book, at p. 349), e.g. the absolute prohibition against the deportation of an infiltrator or spy, since deportations are prohibited, as it were, "regardless of their motive".

 

          Essentially, even reference to the rules of interpretation of international conventions does not help the Petitioners' argument: For even the Vienna Convention does not submit to the literal interpretation, but rather sees the words of the convention "in their context and in the light of its object and purpose" (Article 31(1) of the Vienna Convention). The Convention permits us to examine the preparatory work and shies away from an interpretation whose outcome is "manifestly absurd or unreasonable", and this description would apply at once to a prohibition against the deportation of an infiltrator (Lauterpacht, Brit. Y. B. Int'l L., supra, at 89).

         

          Here it is appropriate to add that one may not adopt a broad interpretation conditionally, that is, an interpretation which invokes the broad application selectively on the basis of the results, and chooses between an outcome which is acceptable to the claimant and one which is not. Whoever accepts the literal and simple interpretation, according to which the term deportation includes any removal from the territory, and who sees the words "regardless of their motive" as a catch-all, forgoes thereby the possibility of selection, as this would lead to a contradiction; one who adopts an interpretation that precludes discretion based on differentiating the motives, cannot then at his convenience accept only part of the prohibition and reject the rest.

         

          Thus, one cannot remove the sting by saying that the language of Article 49 prohibits deportation, under Regulation 112 of the Defence (Emergency) Regulations, and which also based on the implementation of a valid municipal law, but allows, on the other hand, the deportation of infiltrators, spies and various enemy agents, or the extradition of criminals.

         

          (m) Arising out of this answer to the Petitioners' contention, is the opposite question, namely, what then is the alternate interpretation of the words "regardless of their motive"?

         

          If we interpret the term "deportation" as referring to the mass and arbitrary deportations whore descriptions are familiar to us, then the words referring to the motive do not change the essence; the reference to some possible motive simply serves to preclude the raising of arguments and excuses linking the mass deportations to, as it were, legitimate motives. In other words, whatever the motive, the basic essence of the prohibited act (deportation), to which the words of Article 49 are directed, does not change. The opposite is true: there is ground for the claim that the reference to "some motive" is also among the lessons of World War II.

         

          The words "regardless of their motive" were intended to encompass all deportations of populations and mass evacuations for the purposes of labour, medical experiments or extermination, which were founded during the war on a variety of arguments and motives, including some which were but trickery and deceit (such as relocation, necessary work, evacuation for security purposes etc...). Furthermore, the draftsmen of the Convention took into account the existing right of the military government to utilize manpower during wartime (see Regulation 52 of the 1907 Hague Regulations which deals with compulsory services, and Article 51 of the Fourth Geneva Convention which even today permits the subjection of protected persons to forced labor), but sought to clarify that mass deportation, as it had been carried out, is prohibited even when the motive is seemingly legitimate, except in the event of evacuation in accordance with the qualifications set out in the second paragraph of Article 49.

 

            It would be correct to read these words in the light of the remarks of Starke supra, at 510, according to whom one must refer to the "intention of the parties" and to the "meaning attached by them to words at the time". In the light of these principles, one can attribute to the words a reasonable interpretation that accords with the other parts of the Article. It would not be superfluous to quote Starke again (at p. 511):

           

Treaties should, it is held, be given an interpretation in which the reasonable meaning of words and phrases is preferred, and in which a consistent meaning is given to different portions of the instrument. In accordance with the principle of consistency, treaties should be interpreted in the light of existing international law. Also applying both reasonableness and consistency, since it is to be assumed that states entering into a treaty are as a rule unwilling to limit their sovereignty save in the most express terms, ambiguous provisions should be given a meaning which is the least restrictive upon a party's sovereignty, or which casts the least onerous obligations...

 

            Moreover, even the above-mentioned guiding remarks of Professor Yasseen on the subject of interpretation, are incompatible with a literal, plain and expansive interpretation of the relevant paragraph.

           

            To summarize, this court was competent to choose the interpretation resting upon the principles explained above, over the literal interpretation urged by the Petitioners. This court has done so in H.C. 97/79 [2], and I see no grounds for altering that conclusion, as its approach is acceptable to me. I also see no reasonable cause to deviate from the conclusion that served this court in H.C. 698/80 [3], and which treated the matter as conventional law.

           

            Further on, I will address the supplementary argument raised by the Petitioners on this last issue.

 

                      4.(a) This court has indicated in its judgments that the above-mentioned Article 49 is within the realm of conventional international law. In consequence of this determination, the Petitioners have now raised a new thesis which holds that this court's approach, which also forms the basis for the decisions in H.C. 97/ 79 [2] and H.C. 698/80 [3] is founded in error. This approach holds that the rules of conventional international law (as opposed to customary international law) do not automatically become part of Israeli law, unless they first undergo a legal adoption process by way of primary legislation.

         

          This argument of the Petitioners does not directly relate to the interpretation of Article 49; but it does seek to attack that part of the reasoning in our previous decisions in which this court indicated that it saw no reason to delve into the question of the substantive interpretation of the above-mentioned Article 49, since the Article only reflects conventional international law, and as such, has not been assimilated into our country's law.

         

          (b) The Petitioners submit that not only does customary international law automatically become part of the municipal law (barring any contrary legislation), but that there are also parts of conventional international law which are automatically incorporated, without the need for adoption by way of legislation as a substantive part of Israeli municipal law. These are those parts of conventional international law which are within the realm of "law-making treaties". In this argument the Petitioners based themselves on the statements of Lord McNair in two of his works (A.D. McNair, The Law of Treaties (Oxford, 1961) 89; A.D. McNair and A.D. Watts, The Legal Effects of War (Cambridge, 4th ed., 1966) 371); on a judgment of the Court of Appeals in the matter of Porter v. Freudenberg [29]; on statements in B. Rubin's article, "The Incorporation of International Treaties into the Country's Law by the Courts", 13 Mishpatim  (1983-4) 210 and on Professor A. Rubinstein's article, "The Changing Status of the Territories...", 11 Iyunei Mishpat (1985-86) 439, 446 [see English version in 8 TeI-Aviv University Studies in Law (1988), 59]. They have also referred to portions of two articles which they believe lend support to the above-mentioned thesis: Professor H. Lauterpacht, "Is International Law A Part of the Law of England?" 25 Transactions of the Grotius Society (1939) 51; Professor F.A. Mann, "The Enforcement of Treaties By English Courts", 44 Transactions of the Grotius  Society (1958-59) 29.

         

5. (a) My conclusions, in answer to these arguments, have a threefold thrust:

 

(1) The suggested thesis does not accord with the accepted legal approach in Israel.

(2) One discerns no reasonable ground for changing or deviating from the existing legal situation, which in the light of the existing constitutional structure, is also the desired legal situation.

(3) The legal situation in England, to which the Petitioners sought to refer us (whether, in the Petitioners' words, as a binding prototype or for purposes of comparison and persuasion), is not unequivocal, and does not necessarily coincide - certainly not in everyone's opinion - with the view that the Petitioners suggested we adopt. There is much literature pointing to a lack of clarity on this subject. Even in the above two articles (those of Professor Lauterpacht and Professor Mann), the scholars' dispute on the subject is presented.

 

Let us examine the subject in the above order.

 

(b) The legal situation in Israel. Israeli law on the relationship between international law and internal law - that is in order to decide whether a given provision of public international law has become part of Israeli law - distinguishes between conventional law and customary law (Prof. Y. Dinstein, International Law and The State (Schocken and Tel-Aviv University, 1971) 143). Prof. Dinstein refers in this matter mainly to Cr.A. 174/54 [12]; Cr.A. 336/61 [13]; C.A. 25,145,148/55 [14], Cr.A. 131/67 [15].

           

            The view that reflects the accepted opinion in this court's decisions on the subject, was also presented in H.C. 69,493/81 [16], at p. 233 ff.; in the remarks of Barak J. in H.C. 393/82 [17], 793 and in the remarks of Witkon J. in H.C.390/ 79 [18], 29. See also: M. Shamgar, "Legal Concepts and Problems of the Israeli Military Government - The Initial Stage", Military Government in the Territories Administered By Israel 1967-1980, supra, at 13, 47, 64, 69 and the above-mentioned article of Professor Dinstein, at 937, the last paragraph.

           

            According to the consistent judgments of this court, customary international law is part of the law of the land, subject to any contradictory provision in Israeli legislation.

           

            In Cr.A. 174/54 [12], mentioned above, Cheshin J. with whom Witkon J. concurred, spoke about "the customs of international law [i.e. customary international law -M.S.], as part of the law of the land" (ibid., p 17). In Cr.A. 336/61 [13] - following Motion no. 41/49 [19] at 145-6, and the English cases in the matters of West Rand Gold Mining Co. v. Rex [30], at 406-7, and The Cristina  [31] - the application of rules of international law accepted by the international community was recognized, and the rules were proved to be thus accepted. As Professor Dinstein has written in his above-mentioned book (at p. 146) regarding the meaning of what was said in that judgment:

           

The ruling is that rules of (customary) international law are automatically assimilated into Israeli law and become a part thereof; however, in cases of a frontal collision between such rules and the statutory law, the statutory law takes precedence.

 

            Lord Alverstone expressed the same idea in the West Rand case mentioned above when he said that in order to be considered a part of English law, a rule of international law must:

           

...be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised or acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it.

 

            That is, in fact, a standard similar to the one adopted in the definition appearing in Article 38(1)(b) of the Statute of the International Court, which deals with international custom.

           

            In the Cristina case mentioned above, Lord MacMillan demanded - as a condition for the adoption of a rule of international law-that it should have-

           

            the hall-marks of general assent and reciprocity.

            These too are accepted indicators of customary international law.

           

            (c) The status of conventional international law vis-a-vis our law is examined in C.A. 25,145,148/55 [14], where, Berenson J. states at p. 1829:

           

The Rhodes agreement is a treaty between the State of Israel and another state. Whatever the validity of such an agreement may be in terms of international law, it does not constitute a law to which our courts will have recourse or to which they will ascribe validity. The rights that it confers and the duties that it imposes are rights and duties of the states that entered into the agreement and its implementation is solely in their hands through the special means of implementing international treaties. This type of treaty is not in any way subject to the jurisdiction of the domestic courts, unless and to the extent that it, or the rights and duties deriving from it, have been refined in the melting pot of the state's legislation and have been shaped into binding law. In this sort of case, the court does not, in actual fact, require the agreement as such, but rather the Law which affixes its imprint on the agreement and breathes into it legal life in terms of our municipal law. From this it also follows that where the Law and the agreement are incompatible, even though it is clear that the Law is intended to activate and implement the agreement, the courts will prefer the Law, which alone binds them, and by which alone a judgment can be given. Furthermore, even when it is stipulated in an interstate or international agreement that defined rights are to be conferred upon certain people, the obligation under the agreement remains in the realm of an international obligation of the state and no more. The persons concerned do not acquire for themselves any actual right based on the agreement and cannot enforce this kind of a right in court, either as direct beneficiaries of the agreement or in any other way.

 

And further at p. 1831:

 

On the face of it, it seems that in the United States the practice is otherwise (and in other countries with a similar constitutional framework), but in fact that is not so. In the United States Constitution there is an express provision which bestows the status of "supreme law of the land" upon any treaty lawfully concluded in the name of the United States. For this reason federal and state courts uphold treaties and even give them precedence over other laws of the country, where those laws do not accord with the treaties. That is a direct result of the above-mentioned constitutional situation. In essence then, U.S. courts also act according to those same universal principles noted above. They also execute treaties benefiting individuals, where rights are granted to them that are realizable in court, but only in accordance with a provision of their own law; however,: because of the existence of that general provision in the U. S. Constitution, there is no need for a special provision for each individual treaty. See Edye  v. Robertson, (1884), 112 U.S. 580; 5 S.Ct. 247, 254.

 

            The clear meaning of these remarks is that the adoption of international treaties - in order to incorporate them as part of internal law and in order to render them enforceable through the national tribunals - is conditional upon a prior act of the legislator. As we shall see, international treaties may constitute a statement of the valid customary law - but then their content will be binding by virtue of the said customary status of the rule stated therein and not by virtue of its inclusion in the treaty. We shall return to this subject later in the discussion.

           

            Based on what was said in C.A. 25,145,148/55 [14], Prof. Dinstein remarks in his book, op. cit., p. 147:

...The rules of conventional international law are not automatically incorporated into Israeli law, rather there is a need for special and explicit complementary legislation in order for them to become part of Israeli law.

 

In Cr. A. 131/67 [15] Cohn J. reiterates (at p. 97) that-

...No international treaty has legislative force so long as such status has not been granted in an explicit Law of the Knesset....

 

            (d) From the remarks of Cohn J. in C.A. 65/67 [20] (see also H.C. 103/67 [21]), one might surmise that there are rules of conventional international law which are expressed in law-making treaties and which automatically become part of municipal law without the requirement of any prior legislation. Such a conclusion is founded in error. We accept the relevant classification between declarative and constitutive treaties, and one must be exact and distinguish between them. To hold the fact that an international conference or the United Nations General Assembly approves the wording of a proposed treaty and invites states to join it, is proof of the treaty's declarative nature, is less than accurate. This is clarified by Prof. N. Feinberg in "Declarative Treaties and Constitutive Treaties in International Law", 24 Hapraklit (5728 - 1967/8) 433, 435:

           

This thesis [according to which a general norm of international law is created in the above-mentioned way - M.S.], is very far-reaching, as it sees the work of codification in the area of international law, conducted today in the framework of the United Nations, to be declarative codification. It is possible that Justice Cohn was influenced here by the British approach to codification...however, this is not valid in international law, in which there is a basic distinction between a declarative treaty that transfers existing norms from the realm of customary law to that of conventional law, and a constitutive treaty that creates entirely new norms that are indeed founded in the conduct of states, yet the latter remains for the time being in the nature of a usage or practice, not yet having crystallized into a customary norm.

 

And, at p. 437:

 

Every "accepted rule of international law" or, in other words, "every general norm of international law", is rooted in international custom.

 

            Accordingly, Professor Dinstein summarizes his examination of C.A. 65/67 [20] by stating (op. cit. at p. 148):

           

In anything concerning declarative law-making treaties, the rules of international law will be automatically incorporated into the internal law, not because it is stated in the treaty, but in spite of it being stated in the treaty. They will be automatically incorporated, since the treaty reflects only existing customary international law... Even if the Supreme Court erred in the specific application of the above general principle [the reference is to C.A. 65/67 [20] - M.S.], that does not detract from or flaw the principle itself.

 

            To summarize, according to the law applying in Israel, an international treaty does not become part of Israeli law unless -

           

            (1) its provisions are adopted by way of legislation and to the extent that they are so adopted; or,

           

            (2) the provisions of the treaty are but a repetition or declaration of existing customary international law, namely, the codification of existing custom.

           

            This is the way in which Israel has approached the provisions of international treaties which are indicative of "law-making treaties" - as in the enactment of the Crime of Genocide (Prevention and Punishment) Law, 5710-1950, which was passed pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide; the Air Navigation (Security in Civil Aviation) Law, 5737-1977, which was passed pursuant to the 1970 Hague Conventions against the seizure of aircrafts and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; the Sale (International Sale of Goods) Law, 5731-1971, enacted pursuant to the 1964 Hague Convention Relating to a Uniform Law on the International Sale of Goods; and the Immunity and Rights (International Organisations and Special Missions) Law, 57431983, regarding which I would refer to the explanatory notes in the International Organisations (Status) Bill, 5740-1980 (enacted as the International Organisations (Status) Law, 5740-1980 and subsequently replaced by the above-mentioned Law of 1983). I mention these laws merely as oft-cited examples of lawmaking treaties (see for instance Starke, supra,  at VII, 2).

           

            (e) When applying our above remarks to the issue before us, we must remember that Article 49 has been categorized in our judgments as conventional law which does not express customary-international law. Thus it was held by Landau P. in H.C.698/80 [3] that (p. 627)-

           

...Article 49(1) of the Geneva Convention (which) is for now regarded only as a provision of conventional international law, upon which the individual cannot found his petition in a court adjudicating according to the positive law of the forum country.

 

As regards Article 49 not reflecting customary law, Landau P. adds at p. 629:

 

In fact the occupation forces in the Rhineland in Germany, after World War I, used the sanction of deportation from the occupied territory against officials who broke the laws of the occupation authorities or who endangered the maintainance, security or needs of the occupying army: Fraenkel, Military Occupation and the Rule of Law, Oxford University Press, 1944. Under this policy the French deported during the armistice following that war 76 officials and the Belgians - 12, and during the dispute over the Ruhr (1923) no less than 41,808 German officials were deported (ibid., at 130-131). In the face of these facts, it is clear that the prohibition against the deportation of civilians did not constitute a part of the rules of customary international law accepted by civilized states, as if the Geneva Convention simply gave expression to a pre-existing law.

 

            According to Fraenkel, to whom Landau P. refers above, the deportee had no right of appeal whatsoever, neither before a committee nor before a court.

           

            6. (a) I have read the interesting articles, cited above, of Rubin and of Prof. Rubinstein at p. 446, to which we were referred by the Petitioner, but I have not been convinced that we should deviate from the existing and accepted law, as expressed in the rulings of this court, on the methods of incorporating various rules of public international law into our legal system. Moreover, the existing law adequately reflects not only the prevailing, but also the desired situation, in terms of the power of the state to shape its law through its own independent legal tools. Adoption of the viewpoint suggested in the Petitioners' arguments, according to which there is no need for Knesset legislation to assimilate into our law a rule of conventional public international law which finds expression in an international treaty joined by Israel, and which is not in the nature of codification of an existing customary rule, would, in fact, grant the government legislative power, since according to our constitutional structure, the government concludes and ratifies international treaties without any approval from the Knesset. In light of such outcome of the suggested thesis, a twofold doubt arises as to whether the described interpretive innovation is indeed desirable from the viewpoint of sound administration and the rule of law.

           

            For that reason Prof. Feinberg, in his above-mentioned article (at p. 442 n. 77), links the change in the status of law-making treaties to a corresponding change in the ratification methods. This is what he says:

           

In fact, there is no chance of an arrangement under which the courts in Israel would be empowered to apply self-executing international treaties without the need for an act of adoption or inclusion, as long as there is no solution to another question, which is inseparably linked, and that is the question of the status of the Knesset regarding the entire subject of international treaty ratification. For in any such arrangement, if at the same time the power of ratification were to remain under the sole authority of the executive, the result would be a delegation of a quasi-legislative power to the executive and a blow to the principle of separation of powers. And perhaps, there is room to assume that in this field too, the tradition that has developed until now will end and the Knesset will be given the special place that the legislature is entitled to claim for itself in a proper democratic government.

 

Prof. Dinstein writes on this aspect in his book cited above (at p. 147):

 

The power to make treaties in Israel - as in England - is given to the executive authority ... and were there to be automatic incorporation of conventional international law into the existing law in Israel, it could confuse the complicated matter of separation of powers. The existing situation allows the Knesset (the legislative authority) to check the government (the executive authority) and to prevent a mixing of authorities.

 

            (b) To summarize this point: the system suggested by the Petitioners would grant the executive the power to infuse binding legal provisions into our legal system, without recourse to the legislator. This can even be learned from what was written in the above-mentioned article of Prof. Lauterpacht (in 25 Transactions of the Grotius Society, supra, at 51). The Petitioners, basing themselves on his remarks, tried to convince us of the existence, as it were, of an accepted English thesis, uniform and clear, by which law-making treaties automatically become part of the law of Britain. Prof. Lauterpacht states in the above article at p. 74:

           

If a treaty ratified and internationally valid is without force within the State unless supplemented by legislative action, then, it is asserted, International Law embodied in that treaty is not part of the law of the land. This is entirely true. The rule is obviously in the nature of an exception to the principle of incorporation. But the reasons for it lie not in any subtle intention of English Courts to take away with one hand what they grant with the other, but only and exclusively in the exigencies of British constitutional law and the division of powers within the State. It is a rule of British constitutional law that the conclusion and ratification of treaties are a prerogative of the executive. In other countries, such as the United States, the concurrence of the Legislature, or of a part thereof, is necessary for the valid ratification of a treaty. This is not the case in Great Britain. A treaty becomes binding for this country as soon as it has been finally ratified by the Crown. This being so, it might be possible for the Crown to impose burdens upon the subject, and to legislate for him, indirectly, without the concurrence of Parliament, by means of concluding a treaty (X). The existing rule which requires in such cases an enabling Act of Parliament removes that possibility.

 

And in footnote (x):

 

(X) The case of State of Missouri v. Holland, United States Game Warden, decided in 1920 by the Supreme Court of the United States, is an interesting example of a government arming itself, by means of a treaty, with powers which it did not apparently otherwise possess. In 1915 the Congress of the United States passed an Act concerning the protection of migratory birds. That act was declared unconstitutional on the ground that it interfered with the rights reserved to the member states. Thereupon the United States concluded a treaty with Great Britain for the protection of migratory birds. The Supreme Court held that a statute providing for the enforcement of that treaty was constitutional: 252 U. S. 416; Annual Digest, 1919-1922, Case No. 1. The decision of the Judicial Committee of the Privy Council in Att.  Gen.  for Canada v. Att.  Gen.  for Ontario and Others, 53 T.L.R. 325, is also of interest in this connection. The question was, essentially, how far can Canada enact labour legislation, in pursuance of international labour conventions, in matters reserved by the constitution to the provinces?

 

            (c) Another reason for the objection to the automatic adoption of a treaty which does not reflect customary international law, lies in the substantive and basic difference between international law and municipal law, a matter which more than once has eluded the scrutiny of jurists interpreting rules of international law. Moreover, dependence on the automatic application of law-making treaties would subordinate Israeli law to provisions which had not been adapted to the conditions of the country, its interests, and its residents. In this context one must consider the fact that among the treaties presented in the professional literature by those jurists adhering to this thesis, and brought as leading examples of law-making treaties having immediate application, are treaties adopted by the United Nations and the International Labour Organization. While wanting to refrain from generalizations, the idea that the majority in these international bodies could automatically impose upon us provisions of binding law, which would be in force unless expressly annulled by the Knesset, is not attractive.

 

                      Also the attainment of clarity in determining the substance and limits of the law will necessarily be obstructed if we adopt the suggested approach. It is generally agreed that an a-priori classification of the treaties is necessary in order to distinguish between those which apply automatically and those which require enabling legislation. Rules of differentiation and distinction are not defined clearly and simply. If we return , for example, to the remarks of Prof. Lauterpacht, he determines that the said division is "not clearly defined" (ibid., at 75), and that is one of the reasons that the subject is marked by vagueness, dissention and a lack of new and clear distinctions. In any event, the inclusion of an uncertain and unclearly defined element in our legal system does not seem desirable.

         

          (d) The problematic nature of the issue, partially presented above, did not elude the English courts, and a striking, even blunt expression thereof is found in the remarks of Lord Atkin in Chung Chi Cheung v. The King [32], when he said (at 167-168):

         

It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules on our own code of substantive law or procedure.

 

          Professor Lauterpacht called this approach of the courts in his country "judicial hesitancy" and sought to criticize it; however, we are not engaged here in an academic examination of the relative merits and faults of the different legal approaches, but only with the search for specific answers required for our issue, namely :

         

(1) Is there a basis for the argument raised before us that England today is governed by a different legal approach than that to which Israeli courts have turned and referred in developing our legal outlook; and -

 

(2) Is there indeed room today for a change, by way of legal interpretation, in the legal principles that we apply.

 

          What we have said above will suffice to answer these questions in the negative.

         

          7.(a) The third question which we posed above, at the outset of our discussion of the Petitioners' stated argument, concerns the legal situation in England. This subject has been largely covered above, and therefore we will deal with it here only in a nutshell.

         

          The two articles - that of Professor Lauterpacht and that of Professor Mann - do not point to the existence of a uniform and accepted thesis regarding the automatic adoption of law-making treaties. The main substance and purpose of these articles is the learned writers' confrontation with the various views, which give expression to the approach that contradicts the one suggested to us.

 

            The lack of a uniform approach, as evidenced in Professor Lauterpacht's article, has already been referred to above. Professor Manns's point of departure, as presented in his article above, is expressed in the following remarks (at pp. 3031):

           

It is a commonplace that a treaty as such cannot be a source of English law or, in other words, impose duties or confer rights on anyone except the Crown in its international relations. Were this not so the Crown would have the power of legislation. Consequently, in order to become binding upon subjects a treaty must be incorporated into the law of England by parliamentary legislation [Emphasis added - M.S.] What is sometimes loosely referred to as "ratification" will not be sufficient. Parliament may approve the conclusion of a treaty and it may even pass legislation connected with a treaty, but a treaty cannot become part of English law otherwise than by the strictly legislative process. Thus the various treaties which are known as "Documents relating to the Termination of the Occupation Regime in the Federal Republic of Germany: were ratified and approved by Parliament after they were signed at Bonn in May 1952 and Paris in October 1954, yet they do not form part of English law except in so far as the German Conventions Act, 1955 adopts certain of their provisions. The legal position is sumarised by a dictum of Lord Atkin which must today be regarded as locus classicus:

 

Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligation, if they entail alteration of the existing domestic law, requires legislative action.

 

And at p. 45:

 

Internationally a treaty to which the Crown is a party binds the Crown even if there has been no ratification of any kind. This is elementary and probably not denied, though sometimes concealed by loose formulations. Thus, when it is said of a treaty to which the United Kingdom is a party that in order to be binding it requires legislation, what is referred to is only the binding character of the treaty in municipal law.

 

                 And at p. 45:

 

… A treaty to which the legislature has failed to attribute the force of law cannot be given that very same force by the judiciary. This point is so fundamental that it necessarily imposes severe limitations upon the ambit within which treaty obligations may constitute a head of public policy. The mere fact that a particular decision would be inconsistent with the terms of a treaty concluded by the Crown and, therefore, would involve a breach of this country's treaty obligations cannot lead to a decision in the opposite sense.

(Emphasis added - M.S.)

 

            We see no basis for drawing the conclusion that a defined and accepted thesis has been developed which establishes the automatic adoption of law-making treaties under English common law.

           

            The reference to the question of the application of the laws of war in the domestic English law also does not breach the existing reservations outlined above, but there are those who see the authority of the Crown to conduct war, to exercise powers to this end and to conclude treaties (for instance, armistice agreements) as part of the common law. Says Prof. Mann (ibid., at p. 37):

           

It would seem to follow that, if and in so far as the prerogative rights of the Crown in war-time prevail, the Crown can, by treaty no less than by proclamation, alter the common law, for to that extent it is in pursuance of the existing domestic law that the Crown alters it.

(Emphasis added - M.S.)

 

            In discussing the above-mentioned Porter case [29], he seeks to discern by way of conjecture what thesis underlay the approach of the judges who weighed there the matter of the application of Regulation 23(h) of the Hague Regulations, 1907, in the English courts. He remarks at p. 38:

           

The explanation can only be found in the view that, in the absence of any relevant restriction by Parliament of the Crown's prerogative in war-time, the Crown could by treaty alter the common law.

 

And in note 28 he adds:

 

Lord McNair, British Year Book of International Law 1928, 63 sqq. and Law of Treaties, p. 337, seems to think that the Hague regulations constitute a treaty affecting belligerent rights and therefore bind the subject. Similarly, Wade & Phillips, Constitutional Law (4th ed. 1950) assert the binding character of treaties affecting belligerent rights, because waging war comes under the prerogative. There is probably not much difference between these formulations and the statement of the rule suggested in the text. However, the conception of belligerent rights originates from public international law and is not germane to English constitutional law. The latter regards treaties as binding only if and in so far as the prerogative of the Crown prevails. If it does not prevail even treaties affecting belligerent rights cannot bind the subject.

(Emphasis added - M. S.)

 

Similarly see McNair and Watts, supra,  at 371.

 

            I do not believe that conjecture regarding the specific English constitutional situation should serve as a basis for converting the clear and well-defined Israeli legal situation to the system suggested by the Petitioners.

           

            (b) In England a law was passed in order to implement the provisions of the Fourth Geneva Convention (The Geneva Conventions Act, 1957). On the face of it, this would appear to support the thesis that in England as well legislation is necessary in order to implement the Geneva Conventions in internal law. In Rubin's above-mentioned article, it was pointed out in relation thereto, that the purpose of the legislation was limited to the application of the rules of the war crimes convention and no more. Even this interpretation, according to which legislation is necessary only for creating provisions to enable legal proceedings in the national courts, does not necessarily support the thesis proposed to us. Moreover, the fact that the Act incorporated only provisions which are applicable in the kingdom does not mean that the rest of the provisions, dealing with the conduct of armed forces in an occupied territory, have instantly become rights enforceable in an English court. There is a question, for example, of the point of time when the stated system of rights and duties consolidates according to the proposed legal thesis, whether immediately upon ratification of the treaty at the international level, or perhaps at a later stage? And if the second possibility is preferred, the question remains - what is this later stage? As already hinted, a derivative question is why parliamentary legislation is necessary with regard to part of the treaty, in order to bind the courts, and whether in terms of such legally binding status, there is a a difference between the part that was legislated and the part that was not included in the legislation. These are interesting questions worthy of examination, but as far as we are aware, there is no uniform view on the subject in Britain either.

           

            I do not see, therefore, a need to enter into a discussion of the question, although interesting per se, whether there is a basis for adopting the conclusion reached by Lord McNair regarding the meaning, for purposes of the issue before us, of the above-mentioned judgment of the English appeals court in the Porter case [29], according to which the English courts were basically prepared to apply the provisions of the Hague Regulations even without changes in internal English law (McNair, supra,  at 89, McNair and Watts, supra,  at 371).

           

            In the portion of the Porter judgment ([29] at 878), that is in my opinion central to our issue, the argument raised before this court is presented (the question of the application of Regulation 23 (h) of the Hague Regulations as part of the common law), and the conclusion is that there is no need to resolve the question, since Regulation 23 (h) of the Hague Regulations in no way sought to change the law applying within England itself.

           

            It remains an open question, it seems, whether the court was prepared to change the interpretation of the existing municipal law on the issue of locus standi  before an English court, without any internal legislation and based solely on the Hague Regulations. From the following remarks in Porter (129] at 878), McNair, supra, concluded that the court was prepared to view the Hague Regulations as part of the common law:

           

It is impossible to suppose that this means (as it must do if the effect of the paragraph (h) [the reference is to rule 23(h) of the Hague Regulations - M.S.] is to abrogate the law existing hitherto in England and to give an alien enemy the position of a persona standi in judicio in English Courts of Law) that the War Office of Great Britain shall in the present war for this purpose issue instructions to Sir John French, commanding our land forces in the field, forbidding him to "declare" that the rights of alien enemies - Germans, Austrians, or Turks - to institute legal proceedings in the High Court of Justice in London are suspended or inadmissible. And yet this absurdity seems necessarily to follow from the scheme of the Convention as applied to paragraph (h) if the interpretation of this paragraph is that which is contended for by those who find in it an abrogation of our law, which hitherto has not given to an alien enemy the position of a persona standi in judicio.

 

Our view is that article 23(h), read with the governing article 1 of the Convention, has a very different and very important effect, and that the paragraph, if so understood, is quite properly placed as it is placed in a group of prohibitions relating to the conduct of an army and its commander in the field.

 

            With all due respect to the learned writer, I would have refrained from expressing so certain an opinion based solely upon the remarks cited above.

           

            (c) As already indicated, the views on interpretation are not uniform. Thus, for instance, O'Connell states (op. cit., at p. 24):

           

It is sometimes suggested that there is a type of treaty which is properly legislative, in the sense that it lays down the law where none existed before, tout d'un  coup [emphasis in original - M. S.] It is important that this proposition be carefully examined. True, one may cite innumerable conventions, mostly multilateral, which are now taken as international and not contractual law. One may cite the Slave Trade Conventions, the Declaration of Paris, 1856, between the combatants in the Crimean War which put an end to privateering, and most notably, of course, the Hague Conventions of 1899 and 1907, and the Geneva Conventions. But the point is whether nonsignatory and non-accessionary States were automatically bound by the provisions of these conventions as soon as they became operative, or whether they became bound by the rules they contain at a subsequent date when it was accepted that these rules had become part of international custom. The latter is the correct interpretation, and it is clear, then, that it is custom embodying the treaty, and not the treaty itself, which creates law as distinct from contractual rules.

(Emphasis added - M.S.)

 

            The learned writer refers in his above remarks to the extent a legal obligation is binding upon states which did not sign the convention; by way of contrast, countries, which are signatories to the treaty, are obligated to adhere to their said obligations in relations inter se; however, in the system of relations between the individual and government, one can lean in court only upon rules of customary public international law. This approach formed the basis for Witkon J.'s remarks in H.C. 390/79 [18], when he said (at p. 29):

           

One must view the Geneva Convention as part of conventional international law; and therefore - according to the view accepted in common law countries and by us - an injured party cannot petition the court of a state against which he has grievances to claim his rights. This right of petition is given solely to the states that are parties to such a convention, and even this litigation cannot take place in a state's court, but only in an international forum.

 

            (d) Mr. Rubin questions in his above-mentioned article, whether grounds exist to assume that the Hague Regulations were considered at the time of signing of the Convention as merely an international obligation undertaken by the signatory state to the Regulations, and that only subsequently did they turn into binding customary international law and as such a part of the internal law. The answer to this question emerges, in my view, from the following statement in the judgment of the International Tribunal in Nuremberg (I. M. T. Judgment, supra,  at 65):

           

The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention (Hague convention Concerning the Laws and Customs of War on Land) expressly stated that it was an attempt "to revise the general laws and customs of war" which it thus recognised to be then existing, but by 1939 these rules laid down in the convention were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war...

(Emphasis added - M.S.)

 

            In other words, there has been development as regards the status of the Hague rules as customary law in the period that has elapsed since the signing of the Convention in 1907.

           

            (e) To sum up the discussion regarding the third question posed above - a change in the English approach - even if shown to have occurred - need not influence the adoption of an identical approach by us. For as has already been mentioned, the context and constitutional structure in Israel is different, and there is no justification in Israel's present constitutional dispensation for abandoning an approach that has crystallized in Israel since the establishment of the state. Moreover, there is no ground for concluding that the argument regarding the existence of a uniform and monolithic legal approach in England has been thoroughly substantiated.

           

            8. Often raised, peripherally to the discussion of the legal problems regarding the applicability of conventions, is the matter of the status of a customary rule of public international law in our internal law. The question of the nature and identification of a customary rule was discussed in detail in H.C. 69,493/81 [16] at pp. 238-242, and I therefore will not reiterate it here. However, it is worth taking note and repeating certain words of caution, which were included in the above-mentioned judgment:

           

            15. In his above cited work, the The Law of Armed Conflict (vol. 2, at 3) Prof. G. Schwarzenberger gives two necessary warning signs that must be taken into account by anyone inquiring into the existence of a binding rule under the Laws of War: One points to the tendency of creating the impression of greater certainty of the existence of binding legal rules that can be attained in the area of the Laws of War in which belligerents seek to retain for themselves, as is natural - although it may not seem so to others - the maximum freedom of action. The second warning concerns the obstacle set up by the unwarranted praise heaped on a given usage with which it is sought to dress up a particular interest with a universal rule that is inappropriate. The viewpoints of parties or sectors of states, parties interested in the upholding of a rule, do not reflect the existing law, but rather only to a description of the legal situation they desire.

 

The practical conclusion that is to be reached at this stage, is that a careful, detailed and all-inclusive examination is required, giving proper weight to various opinions on a specific subject, to determine whether we are referring to a view acceptable to the overwhelming majority, or to only one of various possible viewpoints.

 

            9. In H.C. 27/88 the Petitioner again raised the argument that Regulation 112 of the Defence (Emergency) Regulations is not in force in Judea and Samaria.

           

            This legal argument too has already been discussed and rejected in H. C. 513, 514/85 and M.A. 256/85 [5] and earlier in the above-mentioned H.C. 97/79 [2]. As stated, I see no reason to add to what has already been said in the matter.

           

            10. Learned counsel for the Petitioner in H.C. 845/87 raised, toward the close of the hearing, a new contention, which was not mentioned in the petition and in the arguments voiced before us in the course of the hearing. In his opinion, the Military Commander no longer has any authority to direct the deportation of the Petitioner under Regulation 112 of the above-mentioned Regulations, since with the signing of the Peace Treaty with Egypt, the Military Government terminated and the Respondent no longer possesses the legal authority to issue such an order. Petitioner's counsel did not take the trouble, I regret, to base his contention on a reasoned legal argument. Thus, he did not explain which provisions of the Peace Treaty would lead us to the above conclusion, or what rules of law sustain them.

           

            I find the above-mentioned contention unacceptable and the reason is both short and simple. The Treaty of Peace between Israel and the Arab Republic of Egypt was accompanied by an additional agreement between the states that concluded it namely A Framework for Peace in the Middle East Agreed at Camp David. According to this agreement, it was determined, inter alia, that further developments would ensue in the deployment of the Military Government at a certain stage, which need not be spelled out here, in the implementation of the said agreement. What emerges from this agreement is that as long as the said stage has not arrived, the Military Government continues to function. There is no indication that the powers which signed the Peace Treaty had decided upon the abolition of the Military Government either at that time or at a subsequent stage prior to this time.

 

            This court has already ruled that as long as the military force exercises control over the territory, the laws of war will apply to it (H.C. 102,150,593,690/82; 271/83, Tzemel  and Others v. Minister of Defence,  [22] at 373):

           

The application of the provisions of the laws of war regarding the powers and obligations of a military force that has taken effective control of an area lying beyond the jurisdiction of its country's applicable law, can also be the result of belligerent action which provides the military force with control over a state against which it is not waging a war.

 

The court further stated at p. 374:

 

...even where the territory is seized from a country with whom a state of belligerency exists (an armistice agreement does not terminate a state of belligerency) at the time the military forces enter and seize effective control. If an agreement was subsequently signed, such as an agreement terminating the state of belligerency, the transfer of the territory, the powers, or both, to the previous authority is disposed of in accordance with the terms of the said agreement. However, as long as the military force exercises control in the territory, the powers granted it and the limitations imposed upon it by virtue of the laws of war, remain in effect. This, of course, is entirely subject to the arrangement agreed upon by the duly authorized political bodies.

 

See also H.C. 574/82 [23].

 

            For our purposes it similarly emerges that, irrespective of the fact that a peace treaty has been signed, so long as the Military Government has not left the Gaza Strip and the relevant parties have not agreed otherwise, the Respondent continues to hold the territory by force of belligerent occupation and is subject to the laws of customary international law that apply in war-time.

           

            11. Let us now turn to the specific submissions of each of the Petitioners:

           

            12. H.C. 785/87: (a) The Petitioner Abd al Nasser Abd al Aziz Abd al Affo,  born in 1956, is a resident of the town of Jenin.

           

            The deportation order was issued by Maj.-Gen. A. Mitzna, Commander of I.D.F. Forces in Judea and Samaria on 3 September 1987, while the Petitioner was serving a prison sentence that was to terminate on 20 September 1987. The full text of the order reads as follows:

           

By virtue of my authority under Regulation 112 (1) of the Defence (Emergency) Regulations, 1945, and my authority under any law or security legislation, and whereas I believe the matter is necessary to ensure the security of the Region, public welfare and public order, I hereby order that:

 

Abd  al Nasser  Abd  al Affo  Muhamad  Abd  al  Aziz , I. D. no. 94808545, born in 1956, from the town of Jenin, be deported from the Region.

 

Abd al Nasser Abd al Afro Muhamad Abd al Aziz is a senior operative in the "National Front" organization, who has been sentenced three times in the past to prison terms for his terrorist activity. He is about to finish a third prison term of five years and three months. During his stay in prison, he assiduously continues his hostile activity in order to further the purposes of the organization.

 

            (b) After the deportation order was served, the Petitioner applied to the Advisory Committee which operates under Regulation 112 (8) of the above-mentioned Regulations (in a number of documents and previous petitions, this body is called an "Advisory Board"). The Committee was composed of the President of the Military Courts in Judea and Samaria, as chairman, and two additional officers holding the rank of Lieutenant-Colonel. The Committee heard the Petitioner and his learned counsel and also the Respondent's counsel in the course of four sessions, during which it was also furnished with the information on which Maj.-Gen. Mitzna relied in reaching his decision. Part of this information was unclassified, and part was classified for security reasons and therefore not brought to the attention of the Petitioner. The Respondent was also presented with a long list of written questions by learned counsel for the Petitioner, which the Respondent answered, as the Committee noted in its decision, subject to the security limitations. These questions and answers were also brought before the Committee. The detailed and reasoned decision of the Committee given on 28 October 1987, stated, inter alia:

 

According to the statement of the Respondent's counsel, the activity of the Applicant began in 1972 when he was studying in high school. He was involved in the theft of a mimeograph machine which was used for duplicating posters. In the years 1975-76, he took part in inciting students to demonstrate in Jenin. In December 1976 he was detained for questioning and in the course of it he admitted to organizing demonstrations and incitements. He was sentenced to three years in prison, of which seven months were actual confinement. In February 1979 he was again arrested and he admitted recruiting people for the Popular Front organization. He was tried in Case Sh. 7033/79 and was sentenced to three years in prison, of which nine months were actual confinement. In April 1980 he took part in elections at Najah University as a representative of the Popular Front. In June 1980 he incited youths to engage in a demonstration, in the course of which stones and bottles were thrown at I.D.F. soldiers and a Palestinian flag was flown. In November 1980 he took part in a student strike against the activities of the Military Government in Ramallah. In November 1980 he participated actively in disturbances, in the course of which road blocks were erected and stones were hurled at I.D.F. soldiers. He acted similarly a month later. Since then and on various additional occasions up until July 1982, as detailed in the unclassified material, the Applicant was reported to have been active in recruiting students for Najah University from among the supporters of the National Front organization (1980). He incited a strike to halt studies and delivered speeches on behalf of the Popular Front. He was an organizer of demonstrations and strikes. At a number of these disturbances, road blocks were erected and rocks were hurled at I.D.F. forces and once at an Israeli bus. In one of the gatherings held in honour of Fatah Day (January 1982), the applicant spoke of revolution and of the unification of all the organizations.

 

In July 1982 the Applicant was arrested and in the course of his interrogation admitted that he was recruited to the Popular Front. In the charge sheet against the Applicant in August 1982, it was stated that beginning in February or March 1981, the Applicant renewed his active membership in the terrorist organization called the "National Front". It was also stated that the Applicant was appointed to head the political wing of that organization at Najah University in Nablus. Further, it was stated in that same indictment that at the end of 1981, the Applicant recruited two additional members to the organization. The Applicant admitted what was attributed to him in the indictment. He was convicted and sentenced to three years of actual confinement. Additionally, his suspended sentence of two years and three months was activated to be served consecutively. Thus, the Applicant was to serve a sentence of five years and three months actual imprisonment. This is the penalty which the Applicant is about to complete serving in the coming days.

 

In its sentence, which was submitted to the Advisory Board and marked Exhibit 1, the court noted as follows:

 

Barely a year and a half has elapsed since the accused was released from prison, and the accused has again engaged in crime and committed the violations which are the subject of this case. This court has decided on more than one occasion to exercise severity in the cases of recidivist offenders who did not learn the proper lessons from the sentences imposed on them in the past, did not fulfil the conditions of the suspended sentences and returned to their errant ways. More rare is the case of an accused who has already been sentenced twice in the past for security offences, yet is ready to carry on and to continue his association with a hostile organization, compounding his transgression by recruiting others.

 

As may be recalled, it has been contended by counsel for the Respondent that even in prison he continued his activities to further the goals of the organization. Because the classified material is highly sensitive, it cannot be made public, save for the fact that in February 1985 - from deciphering a note which a prisoner attempted to smuggle out during a family visit - a report concerning the activity of the security prisoners in the prison was uncovered. The Applicant apparently signed the report ... The Applicant began serving as a leader of the Popular Front in Jenin. He attained this status when he arrived in prison and retains it to this day. Furthermore, since the 80's, the Applicant has been among of the leaders of the Popular Front organization in the Judea and Samaria Region.

 

            (c) The Petitioner contended that although he did participate in demonstrations, he never took part in violent activities or instigated others to carry them out. He also denied any illicit activity while in prison.

           

            (d) The classified material that was presented to the Committee attested, in its opinion, to the senior status of the Petitioner in the above-mentioned organization and to his modes of operation both inside prison and those conducted from prison and directed outside. Counsel for the Respondent noted before the Committee that before the issue of the order, a less severe measure, such as administrative detention, was considered. However, this alternative was rejected. For in view of the intensive activity of the Petitioner while in prison, this alternative was shown to be totally ineffective in his case.

 

            Regarding the nature and quality of the evidence presented, the Committee noted the following:

           

The reliability of the material was examined by us, as was the method of gathering the material and the weight assigned it. Similarly, we examined the work methods of the Intelligence Service until the information was consolidated. On the basis of our examination and on the basis of clarifications which we received from representatives of the General Security Service, we have no hesitation in determining that this information is reliable, substantiated and well-supported by evidence that conforms to the requirements for the production of evidence in administrative proceedings such as these, as it is clear, unequivocal and convincing.

 

            After the Committee addressed itself in detail to the contentions of counsel for the Petitioner regarding the exercise of authority under Regulations 108 and 112 of the Regulations and the way in which the Committee operated, the Committee summed up its opinion in these terms:

           

We have before us an Applicant [i.e. the Petitioner - M.S.] whose is involved in activity of such nature that, along with his role, seniority and status in the Popular Front organization, transform him into a person whose presence and continued activity pose a tangible danger to the security of the Region. The Applicant has not learned any lessons from the past. Placing him on trial three times has been to no avail. For even while in prison he continued his work to further the purposes of the organization. The material presented to us indicates the Applicant's intention to continue his activities in order to secure his standing and advancement in terms of his level of seniority.

 

We have been persuaded that the Applicant is intimately involved in Popular Front circles. He is a part of the organization and has influence within it. Similarly, we are convinced that we are not dealing with a onetime activity that was perpetrated by the Applicant, but with protracted activity that has taken place over a number of years. As mentioned, the Applicant was termed a leader of the Popular Front in the prison, and, since the beginning of 1980, he is a member of the leadership of the Popular Front in the Judea and Samaria Region.

 

After seriously considering the arguments of the parties, we have been persuaded that the considerations of the Regional Commander and the grounds for the issuance of the order were pertinent and within the purview of his authority as defined in Regulation 108 of the Defence (Emergency) Regulations, 1945 and were intended to ensure public welfare, the security of the Region and the maintenance of public order within it.

 

Therefore, we have reached the conclusion that a material security justification exists for adopting this measure of deportation against the Applicant.

 

            The Committee also recommended that the Regional Commander again review the statements of the Petitioner and his counsel before the Committee. In those statements the Petitioner consented to submit to a protracted sentence or to forced transfer to another place of residence and promised not engage in any illicit activity, provided the deportation would not be carried out.

           

            (e) When the Respondent decided on 1 November 1987, in consultation with advisers on legal and security matters, to continue the deportation procedures, the Petitioner, on 6 November 1987, turned to this court.

           

            (f) The Petitioner raised in his petition a number of general legal points, which I have addressed above. He additionally contested the weight of the evidence produced against him and especially its true significance. In his opinion, he had engaged purely in legitimate and open activity, and one should not ascribe to him actions whose seriousness would justify so grave a measure as was decided upon on this occasion.

           

            (g) The State's response, as presented to us and as put forward in a statement by the State Attorney's Office, can essentially be summed up by the following arguments:

           

The terrorist organizations, including the Popular Front of which the Applicant is a member, are striving to build up an infrastructure in the Judea and Samaria Region that is intended to undermine security and the control that I.D.F. forces exercise in the Region, and their ultimate goal is to take control of the entire Region and even beyond.

 

The Respondent, as Commander of I.D.F. Forces in the Region, is dutybound to act to the best of his ability to frustrate this process and ensure security and public order, and this indeed is one of the central purposes of Regulations 108 and 112(1).

 

The Commander of I.D.F. Forces in the Judea and Samaria Region is convinced that the deportation of the Petitioner from the Region will enable the Commander of I.D.F. Forces in the Region to fulfil the obligation upon him by virtue of his position and will result in the cessation of the Petitioner's hostile activity in the Region.

 

The opinion of the Respondent is that less severe measures, such as issuing an administrative detention order or placing the Petitioner on trial, are not appropriate for the Petitioner under the circumstances.

 

For even during the course of his last prison sentence that extended, as stated, for over five years, the Petitioner transformed his very stay in the prison into a broad vista for hostile activity.

 

Administrative detention, by its very nature, is intended either to frustrate a concrete evil that could be created by a certain person's activity or to prevent a relatively short term phenomenon. By contrast, the harm in which the Petitioner is involved is continuous, since he occupies a senior position in the terrorist organization.

 

In view of his continuous hostile activity, the Petitioner constitutes a protracted danger, which can be feasibly frustrated solely by means of deportation.

 

            (h) With the consent of learned counsel for the Petitioner, this court was apprised in the absence of the Petitioner and his counsel, of those items of evidence that were classified, pursuant to a certificate issued by the Minister of Defence, in accordance with Section 44 of the Evidence Law (New Version), 5731-1971. As mandated under section 44 and on the basis of the above-mentioned consent of the Petitioner, we heard explanations from learned counsel for the State and from representatives of the Security Service. We examined the possibility of disclosing additional elements of the classified material to the Petitioner and we announced our negative conclusion in our decision of 15 February 1988.

           

            (i) As a direct outcome of studying both the unclassified and the classified material, the Court has formulated its opinion that it cannot find any justification for intervening in the factual and pertinent conclusions that the Respondent drew and that the Advisory Committee drew subsequently with regard to the character, scope and purposes of the activities of the Petitioner and the degree of danger that they posed for security. We were persuaded that the Respondent had clear, unequivocal and persuasive evidence, and even the classified evidence, as stated, was brought to our attention. The consistent activity of the Petitioner for and on behalf of the terrorist organization emerges from this evidence.

           

            The court's clear conclusion is that the Respondent could have arrived at the conclusion which he reached.

           

            13. H.C. 845/87:

            (a) Abd al Aziz Abd Alrachman Ude Rafia, born in 1950, is a resident of Gaza.

           

            On 15 November 1987 a deportation order was issued against him, reasoned as follows:

           

This order is issued since the above serves as a spiritual leader of the Islamic Jihad movement in the Gaza Strip, which supports a violent Islamic revolution on the Iranian model, armed struggle and the liberation of Palestine through Jihad.  In the framework of his sermons in the mosques, he calls for action against the Israeli rule by military struggle.

 

            Immediately upon the issue of this order, the Petitioner was arrested and jailed in Gaza. The Petitioner applied to the Advisory Committee, which functions under Regulation 112(8) of the above-mentioned Regulations, and the hearing before the Committee took place on 19 November 1987.

           

            (b) The Petitioner was represented before the Advisory Committee by five attorneys.

           

            Counsel for the Respondent described the hostile activity of the Petitioner in the past, including his conviction for membership in an illegal organization and incitement, and regarding his activity following his release from prison, counsel stated, inter alia,  as follows:

           

The Appellant was released from prison on 30 July 1985. Despite the sentence that he had served and the suspended sentence pending against him, he persisted in similar activity; that is, since June 1985, numerous complaints have been filed against him, which are detailed in the order. The unclassified facts are as follows: In May 1986, at the Friday prayer marking the opening of Ramadan in al Kasam Mosque, the Appellant delivered a sermon of a nationalist character, in the course of which he accused the authorities of fanning local disputes, of stirring up emotions and of planting spies whom one had to identify and act against. Moreover, he warned that the authorities intended to perpetrate in the Region what they had done in Lebanon. The Appellant delivered his statement in his capacity as Immam of the mosque. In June 1986 the Appellant actively participated, together with other religious people from the Region, in the disturbances that took place on the Temple Mount in Jerusalem. The disturbances occurred on 3 June 1986, during a Moslem religious festival, and this was a real incident in the course of which a number of investigation files were opened. The Appellant was not investigated at this stage. Information received in July 1986 revealed that the Appellant was found consorting with those responsible for the Islamic Jihad in Gaza. An additional item of information in this vein is from October 1986, according to which three people were appointed to direct the activity of the Islamic Jihad in Judea and Samaria. They were in turn subordinate to the Appellant and his brother Salman. As this is related to the Islamic Jihad  organization, I will present material further on.

 There are three items of information from November 1986 dealing with the investigation of three members of the Islamic Jihad, who were accused of the sabotage incident against the Givati soldiers in Jerusalem. The three gave evidence separately. One of them visited the Appellant in Gaza before the incident, without indicating a connection between the Appellant and the incident. The other two said the same. An item from February 1987 reports that in a religious instruction that the Appellant transmitted over the mosque loudspeaker, he noted, among other things, that there are parents who view their children who throw stones as hooligans, but in the Appellant's opinion, a stone is like a bullet and the children are not hooligans.

 An item from March 1987 deals with a sermon delivered by the Appellant in a mosque on 6 February 1987 in which he spoke of the Jordanian five-year plan. He rejected the plan with the comment that the Palestinians had no need for financing, nor for strengthening the Israeli conquest and rule; rather they had a need for liberty and for expelling the occupation.

 In a religious instruction given on 10 February 1987, he expressed support for Iran and came out strongly against Iraq and Israel.

 In a sermon on 27 February 1987, the Appellant called upon the believers to continue the struggle, because this was an opportunity to arouse believing residents to struggle.

 The Appellant spurned the requests that were directed to him to cease these disturbances. In the investigation of a suspect from Rafiah in January 1987, the person interrogated divulged that he was recruited for the Islamic Revolutionary Movement by Fathi Brij Jacki, who was a prisoner sentenced for membership in the Islamic Jihad. That same suspect divulged that Fathi stipulated to him that should he be arrested, the Appellant would replace him, and the suspect would have to coordinate with the Appellant the attendance of youths at the Friday sermons.

 On 5 June 1987 in the Bet Lahiya mosque, the Appellant delivered an address to mark 20 years since the Six Day War. He incited to Jihad, called for the liberation of Jerusalem and urged his followers to continue the struggle and not surrender even if they be injured.

 On 9 October 1987, in the course of the Friday afternoon prayer in his Gaza mosque, he devoted the sermon to the four terrorists who were killed in clashes with the security forces and, inter alia,  stated the following:

 

The worshippers should take the four slain terrorists as an example and engage in struggle as they did. The individual must overcome his private interests and act against the authorities for the sake of the general Islamic interests. The worshippers ought to adopt the path of armed struggle even if it might cost them their lives.

 

In the course of the sermon, proclamations were disseminated among the worshippers that included the portraits of the slain terrorists and a message similar to the one just mentioned. I would like to present two proclamations that were disseminated on that occasion, together with a translation. There is a problem at this stage in presenting the translation. I wish to waive the presentation of the translation at this stage.

The proclamations will be designated as Exhibit 2 and Exhibit 3. The investigation report of October 1987 states that on 1 October 1987 in the afternoon sermon in his Gaza mosque, the Appellant remarked that Islam is the religion that calls for Jihad. Those present must go forth and struggle as God wills. Those present must unite in order to expel the foreign conqueror. At the end of October 1987, the Appellant took part in a memorial ceremony for two attorneys who were murdered in Gaza a few months ago. The two were identified as supporters of the Islamic Jihad. In the ceremony the Appellant delivered a speech, in which he stated, inter alia, that blood must be requited by blood. The report of November 1987 on the interrogation of M.F. of Jelazun, in the Ramallah area reveals that he indicated that he and the members of his cell were members of the Islamic Jihad and that they had visited the Appellant in Gaza, who knew of his activities in the Islamic Jihad.

In a sermon at his mosque on 6 November 1987, the Appellant called upon God to pour down fire on the enemies, for He always sides against the tyrants.

 From some of the items of information that I have detailed and will detail later, it cannot be said that the preachings of the Appellant were addressed solely to the Israeli authorities. But preachings which call for violent activity and civil disorder in the context of religious extremism, including actions against persons suspected of heresy to Islam, as well as against stores which carry abominable movies or against weddings where western music is played - these activities also severely harm the security of the Region, because there was resort to fire arms and casualties were caused .

 At this stage I would like to present two documents. The first is the expert opinion of a General Security Service officer regarding the Islamic Jihad.  It is identical to what has been presented in the past in the trials of members of the Islamic Jihad and is in the possession of the defence attorneys - marked as Exhibit 4.

 In addition, I would like to present a personal profile and impression of the Appellant that was prepared by the Advisor on Arab Affairs of the Region's civil administration, on the basis of the material in his possession, as well as a meeting he held with the Appellant. As stated, this document is a precis of the Appellant's personality and activities.

 

            In addition, counsel for the Respondent also brought before the Committee classified material containing detailed information on the Petitioner's activity that endangered security. This information was presented subsequently to this court, with the consent of counsel for the Petitioner (in the absence of the Petitioner or his counsel), and with respect to which we rendered our decision of 15 February 1988.

           

            The Committee noted in its reasoned and detailed decision, inter alia, as follows:

           

The Applicant is mentioned as responsible for the Islamic Jihad in the Gaza Strip and perhaps beyond that area. He is depicted as a guide of that organization and as an influential figure among the residents of the area in general, and among those who belong to that organization in particular. They look to him constantly and often wait by his doorway to hear his word. He acquired this status through his activities as a lecturer at the university and as a preacher in the mosque, where he delivered extremist religious and nationalist addresses laden with incitement and hatred against Israeli rule. These more than once called for violent struggle, including encouragement of civil disorder and even extreme acts of violence, such as murder. There is no doubt, therefore, that the Applicant constitutes an actual danger to the security of the Region and its inhabitants and to the maintenance of public order; further, that the deportation order was given, within the framework of considerations enumerated in Regulation 108 of the Regulations... The question remains whether in the Applicant's case, the most severe measure, namely deportation, is called for.

 

In view of the Applicant's "history" and personality, we are convinced that the answer to this question is affirmative. The Applicant was subject in the past to various restrictions because of his activity, was even tried and has served a prison sentence. However, despite all this, he did not mend his ways and continued precisely along the path upon which he had embarked previously. In the course of time, he even extended his influence and acquired a greater following of believers.

 

The Applicant has impressed us as a man of strong character, who totally believes in the righteousness of his ways and, therefore, there is no chance that in the foreseeable future he will desist from his dangerous activity. We do not believe that any restrictions imposed upon him will suffice to prevent the continuation of his negative influence on the residents of the Region.

 

Even his incarceration (e.g. by way of administrative detention), will not counter his influence. There is ground to fear that precisely in such a place will he be even more accessible to the extremists among his followers, and that his stay in prison will have a most dangerous and negative influence on what takes place both within the prison and outside it.

 

The most efficient and suitable measure in this case is, therefore, to deport the Applicant outside the Region and the country.

 

Even if he be free to go about in a foreign land, with no one to constrain him, his harmful influence on the Region would be immeasurably smaller and less perceptible and immediate than would be the case, were he to walk about in our midst.

 

            (c) When the Committee rejected the application of the Petitioner and recommended on 25 November 1987 that the deportation order be upheld, the Petitioner turned to this court.

           

            His biography was described in his petition in these terms:

           

3.a. The Petitioner bears I.D. card no. 92118635, was born in 1950, and is a permanent resident of Gaza. He is married and the father of 5 minor children.

 

b. In 1970 the Petitioner traveled to Cairo with the consent of the Israeli military authorities to pursue academic studies. In 1975 he completed his studies for a master's degree on the subject of the Islamic Sharia.

 

c. Between the years 1976-1981, the Petitioner served as a teacher in the Emirate of Shajah in the Persian Gulf.

 

d. During the course of his study and work outside the Region, the Petitioner would intermittently visit his family in the Gaza Strip.

 

e. In 1981 the Petitioner returned permanently to Gaza, his place of domicile. He was hired as a lecturer on Islamic Sharia at the Islamic University of Gaza and served in the post of Immam  at one of the mosques of Gaza. In the framework of this position, he delivered sermons during the Friday prayers at the mosque.

 

f. In September 1983, a six month supervision order was issued against the Petitioner. It was extended for another six months (up to September 1984). Under these orders the Petitioner was prohibited. inter alia,  from entering the Islamic University where he worked.

 

g. The Petitioner appealed against the orders. His first appeal, however, was struck out due to his non-appearance. The second appeal was heard in June 1984 and dismissed.

 

h. In October 1984 the Petitioner was put on trial before the Military Court in Gaza, on charges of membership in an illegal organization (Regulation 85 (1) (a) of the Defence (Emergency) Regulations) and of incitement (Section 7 of the Order Prohibiting Acts of Incitement and Hostile Propaganda).

 

i. The Petitioner was convicted on the second offence - incitement and membership activity, and was sentenced to 11 months of actual imprisonment, from the date of arrest, and to an additional suspended sentence. He was released from prison in July 1985.

 

j. Following his release he returned to work at the Islamic University and to his post as Immam.

 

            (d) As stated, all the evidentiary material, including the classified material, was presented to us.

           

            Respondent no. 1, O/C Southern Command, noted in the affidavit that he submitted to us:

           

The decision to deport the Petitioner from the Region was taken after all parties responsible for the security of the Region, its welfare and proper administration, including military and security personnel at the highest military, security and political echelons, consulted and seriously examined the need for deportation. All were convinced that the status, position and activity of the Petitioner in the Islamic Jihad movement dictate today the adoption of this grave and extreme measure of deportation.

 

The copious evidentiary material accumulated by the security authorities was presented to the above-named parties and to me, and it sufficed to persuade me unequivocally that the Petitioner serves as the spiritual leader of the Islamic Jihad movement in the Gaza Strip, a movement which supports a violent revolution on the Iranian model and an armed struggle and the liberation of Palestine through Jihad. In the framework of his sermons in the mosques, the Petitioner calls for action against the Israeli rule by means of military struggle.

 

            The facts as presented to us clearly and persuasively attest to the consistent and hostile activity of the Petitioner, and they directly refute the contentions and denials of the Petitioner. The sole possible conclusion is that this material was, as the court requires, clear, unambiguous and convincing.

           

            We find no basis for the contentions as to lack of good faith or arbitrariness, and can discern from the proceedings up to now that, with respect to the question here deliberated, the authorities acted cautiously, upon thorough examination and with discretion.

           

            I therefore see no grounds for intervention by this court in the decision of Respondent no. 1.

           

            14. (a) H.C. 27/88:

           

            (a) The Petitioner, J'mal Shaati Hindi , is a resident of Jenin and is studying at Al Najah University. On 1 December 87 a deportation order was issued against him reasoned as follows:

           

J'mal Shaati Yunis Hindi is a senior operative in the Al Fatah  organization and the focus of his hostile activity is in the city of Nablus in general and at Al Najah University in particular. He was sentenced to four years of actual imprisonment for his terrorist activity and was subject to a restriction order for a year and a half and to a nine month period of administrative detention. During that entire time he continued intensively to act in furtherance of the organization, both inside and outside prison.

 

            He applied to the Advisory Committee and this body heard the submissions of counsel for the Petitioner and of course for the Respondent, who produced the evidence that assisted the Regional Commander in making his decision. A portion of the evidence was submitted by the security authorities in the absence of the Petitioner or his counsel.

           

            The disclosed facts against the Petitioner, as subsequently summarized in the decision of the Advisory Committee, were as follows:

           

The hostile activities of the applicant began in 1976. In that year, the applicant was among a group of youths who incited students in Jenin to demonstrate, and the windows of the school were shattered. The applicant was among those who organized demonstrations in the Jenin refugee camp.

 

In July 1976 doctrinal material regarding the Al Fatah  organization was found in the applicant's home.

 

In August 1976 the applicant was arrested and interrogated. He admitted that about a year earlier he had been recruited to the Al Fatah organization. He received a code name and recruited additional activists. Together with members ... (not clear) he trained in laying sabotage charges and even prepared an explosive charge himself. The applicant also knew of the location of a box of bullets, kept by one of his companions. During that same period he participated actively in organizing demonstrations, erecting road blocks, throwing rocks and setting fire to tires.

 

On the basis of the investigation material and the admission of the accused, he was tried, convicted and sentenced to four years of actual imprisonment.

 

 In July 1980 the applicant completed his sentence and was released from prison. A few of months after his release, in April 1981, the applicant took an active part in organizing "Palestine Week" at Najah University, sponsored by Al Fatah.

 

In a demonstration that took place in November 1981, at Najah University, the applicant was one of the leading activists. In the course of the demonstration, stone road blocks were erected and rocks were hurled at a military force that arrived on the scene. A similar demonstration in which the applicant was active took place that same month.

 

During the months of March and June 1982, the applicant was again involved in disturbances in which he played an active role. In this period the applicant was arrested twice. From the interrogation of an Al Fatah activist in October 1982, it emerged that the applicant headed the volunteer youth committee of the Fatah in the Jenin refugee camp. In January 1983 a celebration marking the anniversary of the establishment of the Fatah was held at Najah University. Four thousand people participated in that celebration. The applicant was among those active in organizing the celebration. In January 1983 the applicant again took part in throwing stones at I.D.F. forces.

 

On 19 April 1983 a special supervision order was issued against the applicant for a period of six months. In May 1983 he was again involved in disturbances. The original supervision order was extended for another six months, commencing 19 October 1983; and on 19 April 1984 it was extended for yet another six months.

 

In August 1984 the applicant was a member of Lijnat A'Shabiba in the Jenin refugee camp. In August 1985 an administrative detention order was issued against the applicant for six months, but following his appeal, the period of administrative detention was shortened to three months. With his release from administrative detention, a celebration was held in his honour in May 1986, in the course of which songs were sung in support of Al Fatah. In July 1986 the applicant was among the senior operatives of the A'Shabiba  movement at Najah University.

 

On 8 January 1987, the applicant spoke to an Al Fatah Day event at Bir Zeit University, and extended greetings to mark the day. On 12 June 1987 the applicant was placed under administrative detention for a period of six months.

 

            In July 1987, a day before the student council elections, the applicant presented the Shabiba candidates to the students of Najah University and called for continued nationalism and struggle, including armed struggle. Toward the end of November 1987, the applicant was again arrested for his involvement in disturbances at the Jenin refugee camp.

 

According to the material, the applicant's name came up in the interrogation of a member of a youth committee in Jenin, as one of those responsible for Shabiba activities in the Jenin refugee camp.

 

            The above was a precis of the unclassified material presented by counsel for the Respondent. In addition to this material, a large collection of classified material was brought before the Advisory Committee.

           

            The Petitioner denied all involvement in a terrorist organization and attributed the issueance of the order to a desire to hamper him in expressing his political views. The Advisory Committee had this to say in its decision of 27 December 1987:

           

The statement of the applicant is totally belied by what we have found in the copious material, both classified and unclassified, that was presented to us. As opposed to the sweeping and blanket denial of the applicant, we found in the body of the material details concerning his activity and standing in the AI Fatah  organization. In closed hearings, clarifications were received regarding the method in which the material was gathered and the reliability of the sources. We were persuaded that the sources of the information are numerous and that most of the the important items of information were received from diverse sources and corroborated. We were persuaded that the evidence presented to us meets the requirements set in the case law, being clear, unequivocal and persuasive (H.C. 513,514/85, Nazzal  and Others v. Commander of I.D.F.  Forces in the Judea  and Samaria  Region, 39 (3) P.D. 645). In examining the material, we took into consideration the fact that it is difficult for the applicant to defend himself against material that is not brought to his attention and, therefore, we exercised special caution.

 

The import of our above determination is that the applicant's course of conduct is totally at odds with the description he presented to us and upon which his counsel relied. We are dealing with a person holding a senior position in the AI Fatah organization and with connections in the organization. His modus operandi is sophisticated. He refrains from appointments to official positions to avoid exposure, but is fully involved in what is going on. His main activity is to take an active part in organizing demonstrations and violent disturbances, in some of which rocks were thrown at military forces and road blocks were set up. The applicant is a person of standing, power, influence and ability to instigate and bring about relatively large scale disturbances in those centres where he is active and known.

 

As emerges from the material, the applicant's activity continued over a period of years. He was imprisoned for four years for terrorist activity; he was subject to special supervision orders and was placed under administrative detention, but he did not cease his hostile activities. He continued them intensively and on one occasion when he participated in a disturbance he suffered injury from a bullet fired at his leg.

 

The applicant's activity has continued up until recently and from a perusal of the material one can gauge not only his sense of determination to act and to engage others in violent ways in order to further the goals of the organization in whose framework he functions, but one can also discern in him a person who has decided to make such activity his life's goal. We have been persuaded that he is likely to pose a tangible and lasting danger, due not solely to his growing stature, but also to the range and type of his activity, which reflects a method for realizing the armed struggle that the applicant propounds.

 

In light of the aforesaid, there is no basis for the contentions of the applicant and his counsel that the order was issued purely for a political view expressed. The applicant's activity and its inherent danger to the security of the Region, was the basis for the issue of this order. There is no need to dwell on the danger that could result from this type of activity in which the applicant is engaged. Violent demonstrations and disturbances gravely effect the Region's security and the maintenance of public order. and prevent securement of the public welfare.

 

We have no doubt that material and decisive security considerations prompted the issuance of the order against the applicant.

 

            After the Committee recommended upholding the deportation order, the Petitioner turned, on 12 January 1988, to this court.

           

            (b) The material upon which we must base our decision is that which was presented openly before the Petitioner and the Advisory Committee, because in this case we were not requested to examine the evidence for which a certificate of privilege was issued in accordance with Section 44 of the Evidence Ordinance (New Version), 5731-1971.

           

            The Petitioner did not submit an appeal in the regular manner prescribed in the latter part of Section 44 of the above-mentioned Ordinance, as distinguished from the method of review by the bench that is hearing the matter, a method that depends upon the agreement of the parties. The legal significance of the matter is that the Petitioner cannot today contest the justification for classifying the evidence (as opposed to challenging the justification for the deportation order). What implication does this have? The legislature authorized the Minister of Defence to attest by a signed certificate that the presentation of certain evidence could harm state security. The legislature also left the affected party an opening to try and persuade a judicial authority that the need for disclosing the evidence in order to do justice takes precedence over the need for withholding it, i.e. that the classification of the evidence is unjustified. Once a party has refrained from requesting disclosure of the evidence in the prescribed manner so that it could be decided statutorily by the competent judicial authority - that is, having abandoned the avenue of appeal established in the Evidence Ordinance (New Version) - his claim, that preference be given to considerations supporting disclosure of the evidence over considerations supporting the maintenance of secrecy, cannot in any case be argued before us.

           

(c) In his petition, the Petitioner repeatedly claims that there is nothing in the arguments or the evidence to justify the adoption of such a severe and far reaching measure as deportation.

 

            He has contested the legality of issuing a deportation order, a matter that we have discussed above, and has disputed the existence of a justification for issuing it in his specific case. The Respondent's reply submitted to us quotes the above-mentioned statement of the Committee, namely:

           

The applicant's course of conduct is totally at odds with the description he presented to us and upon which his counsel relied. We are dealing with a person occupying a senior position in the Al Fetch organization and with connections in the organization. His modus operandi is sophisticated. He refrains from appointments to official positions to avoid exposure, but is fully involved in what is going on. His main activity is to take an active part in organizing demonstrations and violent disturbances, in some of which rocks were thrown at military forces and road blocks were set up. The applicant is a person of standing, power, influence and ability to instigate and bring about relatively large scale disturbances in those centres where he is active and known.

 

            (d) The Petitioner complained about the legal procedure, in the framework of which classified evidence was presented to the Advisory Committee in his absence and in the absence of his counsel. On this issue the court has stated in the above-mentioned H.C. 513,514/85 and M.A. 256/85 [5] at p. 658:

           

The Petitioners complained that they were not privy to the secret material that was presented to the Advisory Board, but as this court has already explained in a similar case in A.D.A. 1/80, this is the sole reasonable arrangement that strikes a balance between the two interests, which are: on the one hand maintaining review of the considerations and decisions of the Military Commander; and on the other hand preventing damage to state security through disclosure of secret sources of information. It indeed does not provide an opportunity to respond to every factual contention and the Advisory Board (or a court under given circumstances) must take this fact into consideration when it examines the weight or the measure of additional corroboration of the information. However, the legislature found no more reasonable and efficient way to guard against the disclosure of secret information in circumstances where this is vital in order to prevent grave damage to security; and it may be said in passing that this method is mentioned not only in Section 44 of the Evidence Ordinance (New Version), 5731-1971, but also in the less known provision in section 128 of the Penal Law, 5737-1977, by which one can similarly limit the full disclosure of information.

 

            This time too the Committee examined, what the maximal information was that it could place at the disposal of the Petitioner without damaging vital security interests, and one has no cause for complaint against the Committee. We have nothing to add in the matter, because we have not examined the secret material and do not know its details.

           

            As regards the examination of the material, I am aware that in the absence of a request to this effect by the Petitioner, we have not had an opportunity to peruse the classified material. From the standpoint of the Petitioner, this cannot avail him in the case at hand. The unclassified material attests to consistent and prolonged hostile activity on the part of the Petitioner. In the absence of any supporting data, we can find no basis for the Petitioner's contention that the Respondent's action is based on arbitrariness or lack of good faith, or that the classified material does not support the Respondent's approach. No reason or grounds exist to preclude our concluding from the known constellation of circumstances that the Respondent found in the classified evidence substantial support for the approach he adopted, a view also held by the Committee which did examine the material. The absence of an initiative on the part of the Petitioner to submit the secret information for review in the manner established by the legislature for this purpose, or to request that the court do so, can only lend support to the thesis presented by the Respondent.

 

            (e) Having studied the material in the Respondent's reply and in his arguments before us, and having considered the submissions of the parties, we have concluded that there are no grounds for the intervention of this court in the discretion of the Respondent. The manner in which the Respondent acted for the purposes of exercising his authority under Regulation 112 in the specific case before us was proper, and the matter was examined in a thorough and exhaustive manner by the Advisory Committee.

           

            The considerations of the Advisory Committee, whose reasoned decision was before us, and the considerations of the Respondent as they emerge from the reply submitted to us, and as buttressed by and consistent with the unclassified material presented to us, do not point to the existence of any grounds upon which this Court could exercise its authority under section 15(d)(1) and (2) of Basic Law: The Judicature.

           

            Finally, a general comment. Having regard to the substance and scope of the material which substantiated the Respondents' decisions regarding each of the Petitioners, we see no reason to deal with the Petitioners' theoretical argument as to what likelihood of danger is generally required in order to found a decision under the above-mentioned Regulation 112.

           

            15. During the hearing before the Advisory Committee in the case of the Petitioner in H.C. 785/87, as well as before us, the question arose as to whether a person against whom a deportation order is issued and who appeals to the Advisory Committee is allowed to call witnesses to testify on his behalf before the Committee.

           

            In one of the sittings of the Advisory Committee, a categorical view was expressed that no such right exists. I find this opinion unacceptable.

           

            In its functioning, the Advisory Committee hears arguments just like any advisory committee that examines a question within the purview of its authority, and upon which it must express an opinion and provide its recommendation. Customarily, the Committee also hears the prospective deportee, if he so desires. The hearing before the Advisory Committee is not in the nature of a judicial proceeding in which evidence is presented in the manner acceptable in a court of law; and whoever represents the statutory authority, to which the Committee presents its recommendations, does not have to prove his contentions in the same manner that evidence is adduced before a judicial body. However, in a case where the Petitioner raises a detailed and reasoned argument in apparent good faith, contending that a particular witness can provide the Committee with relevant information that has a direct bearing on the case and which can shed light on the question posed before the Committee, it would be proper for the Committee to decide to hear the witness.

 

            In retrospect, it does not appear that the witness, whom it was sought to summon in this case could have refuted the evidentiary material, whose substance and quality were described above, and therefore no miscarriage of justice requiring remedy was caused at that point.

           

            16. The Petitioners raised the argument that a deportation order must specify the duration of the stay outside the Region imposed by the order.

           

            There is nothing in the text of Regulation 112 to support the above argument. The Regulation authorizes the Military Commander to direct, by way of a signed order, the deportation of person. Incidentally, the text of Regulation 122 (7), as promulgated during the period of the Mandate, even relieved the person issuing the order from the obligation of noting the name of the deportee. Obviously, today the authority is not exercised in such fashion.

           

            There is no provision in the Regulation as to the period of time for which the order is in effect. All that is stated in the original version is:

           

A person in respect of whom a Deportation Order has been made shall remain out of Palestine so long as the order remains in force.

 

            This signifies that the prohibition on return to the Region remains in force so long as the deportation order has not been rescinded by whoever issued it. It is my opinion that the Regulation would admit the possibility of raising anew the question of the duration of the order, either by applying to the person who issued the order or by a renewed application to the Advisory Committee. Regulation 112(8) empowers the Advisory Committee appointed for the purposes of Regulation 111(4), to consider the applications of a person against whom a deportation order was issued.

           

            The task of the Advisory Committee was defined in Regulation 111(4) as follows:

           

The functions of any such committee shall be to consider, and make recommendations to the Military Commander with respect to, any objections against any order under this regulation which are duly made to the committee by the person to whom the order relates.

 

            Regulation 112(8) provides that the Committee shall consider the application of a person against whom a deportation order was issued, and make its recommendation in this regard. There is nothing in the aforesaid text to indicate a onetime examination. One should interpret this Regulation in accordance with the language used, in a manner that will permit a person against whom a deportation order was issued, and which is still in force, to renew an application for reconsideration of his case.

           

            This approach finds support in the tendency reflected in the second paragraph of Article 78 of the Fourth Geneva Convention, which deals with a different though essentially related subject to that before us. It also coincides with the directive in section 16 of the Interpretation Order (Judea and Samaria Region) (No. 130), 57271967, which states:

           

Exercise of Power or Fulfilment  of obligations.

16. Where a power is vested in or by virtue of a security enactment, or a duty imposed therein or thereunder, the power may be exercised and the duty shall be fulfilled, repeatedly, from time to time as the circumstance may require, provided no other intention is implied.

 

            Therefore, repeated applications may be made to the Advisory Committee, even after the implementation of a deportation order and so long as the order is in force.

           

            17. In summary, we have not found any abuse of authority, deviation from authority, lack of good faith, arbitrariness, unlawful discrimination or similar shortcomings or irregularities that would invalidate the Respondent's acts. In light of all of the facts presented to us, there is no room to doubt the veracity of the Respondents' submissions and their reliability, and one cannot negate the legal and substantive basis for their decisions.

           

            Accordingly, I would dismiss the petitions and set aside the orders issued pursuant to them.

           

            LEVIN J.: I concur.

           

            GOLDBERG J.: I concur.

           

            BEN-PORAT D.P.: I concur in the instructive opinion of my esteemed colleague, Shamgar P. I would only add that in his judgment he mentioned and reviewed that interpretive approach which holds that one should interpret a treaty in a liberal and broad fashion, paying due attention to the intention of the treaty's draftsmen and to the purpose underlying its conclusion. For this purpose, a passage was quoted from Starke, op cit. at p. 511:

           

...Treaties should be interpreted in the light of existing international law.

(Emphasis added - M.B.P.).

 

            A similar rule of interpretation is accepted by us in relation to legislative enactments, namely: two laws that deal "in pari materia" with the same subject and have the same purpose should be interpreted in a uniform manner, so as to create a suitable interpretive harmony between their provisions. See: C.A. 303/ 75 [24] at 605; H.C. 609/82 [25] at 766. I believe that one can apply this also to the present issue: Regulation 43 of the Hague Regulations, which is found in the section on "Military Authority Over the Territory of a Hostile State", reads as follows:

           

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

           

            The provisions of Article 49 of the Fourth Geneva Convention should be read (inter alia) in the light of the directive in Regulation 43 of the above-mentioned Hague Regulations, so that the strict prohibition against the deportation of civilians, according to a simple reading of the text, should be qualified by the duty imposed under Regulation 43.

           

            Let me clarify my position. One can deport individual residents of those territories to locations outside them, so long as their continued residence may harm public security and order in the occupied territories, and on condition that in the given circumstances no other option than deportation exists in order to protect the population of the territories. I would further add that one should read Article 49 of the Fourth Geneva Convention in the light of what is stated in Regulation 43 of the Hague Regulations, since the Hague Regulations bind Israel as part of customary international law, whereas the Geneva Convention has only conventional force. It is, therefore, understandable that greater weight should be accorded to the duty of ensuring security and public order in the occupied territories as set forth in Regulation 43.

           

            In the petitions before us an affidavit was submitted by the Respondents, explaining that all other remedies including administrative detention had been exhausted, that it had become evident that none of these could respond to the security problem relating to the Petitioners, and that the sole solution was to deport them outside the occupied territories.

           

            As stated, this is but an addendum to the exhaustive and persuasive considerations advanced by my esteemed colleague, Shamgar P.

 

                      BACH J.: 1. I concur in the final conclusion reached by my esteemed colleague, the President, in these petitions; however, on one point of principle I must dissent from his opinion.

         

          This point is the proper interpretation of Article 49 of the Fourth Geneva Convention (hereinafter "The Convention"). Counsel for the Petitioners requested that we re-examine this question and consider again an argument advanced on a number of occasions in the past - that the deportation of persons permanently residing in the territories occupied by the I.D.F., outside the boundaries of those territories and into the territory of another state, is indeed in contravention of the provisions of Article 49 of the Convention.

         

          2. In a reasoned decision given by Sussman P. in H.C. 97/79[2], it was established, explicitly, that the deportation of a person from the territories of Judea, Samaria and the Gaza Strip to one of the neighboring Arab states out of concern for state security, is within the purview of the Military Commander's authority under Regulation 112 of the Defence (Emergency) Regulations and outside the framework of actions to which Article 49 of the Convention applies.

         

          In subsequent petitions, when this point was again raised on behalf of the Petitioners, the court was content to refer to the judgment in the above-mentioned H.C. 97/79[2], expressing its concurrence in the ruling given in that case (e.g. see the judgment in H.C. 513,514/85 and M.A. 256/85 [5], at 650-659) which is extensively quoted in the opinion of my esteemed colleague, the President. However, there have been instances when the court decided to reserve judgment on this point. Thus in H.C. 698/80 [3], Landau P. reviewed the various arguments on this question and decided not to adopt a position regarding them when he stated (at p. 627):

         

...and I will refrain from deciding upon the legality of the deportation orders under Article 49(1) of the Geneva Convention, which for the time being must be regarded as a provision of conventional international law alone, upon which an individual cannot found his petition in a court adjudicating according to the positive law of the forum country.

         

          (I will return to this last argument below.) My opinion, therefore, does not contradict the conclusions of Landau P. in H.C. 698/80 [3] and I am constrained to dissent only from the opinion expressed on this point in H.C. 97/79 [2]. It should be recalled that in that same judgment in H.C. 698/80 [3], a minority opinion was delivered by Cohn J. who held that it was proper to make the order nisi absolute, and regard the deportation order as void.

         

          3. Before I clarify my stand on this matter, and in order to make it easier to follow my arguments later, it would be useful to cite now the text of the relevant part of the aforesaid Article 49 as well as the reasoning of Sussman P. in H.C. 97/ 79 [2], which the Petitioners requested us to reject.

 

            The first two passages of Article 49 provide:

           

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

 

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given territory if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

 

            "Protected persons", in the sense of the Convention (according to the definition in Article 4 of the Convention) are

           

those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or an Occupying Power of which they are not nationals.

 

            The following reasoning underlies the view of Sussman P., in H.C. 97/79 [2] at pp. 316-317, that the deportation of people who endanger the security of the Region, under Regulation 112 of the Defence (Emergency) Regulations, lies beyond the scope of the above-mentioned Article 49:

           

Neither have I found any substance in the argument that the exercise of the above-mentioned Regulation 112 contradicts Article 49 of the Fourth Geneva Convention of August 1949 Relative to the Protection of Civilian Persons in Time of War. It is intended, as Dr. Pictet in his commentary on the Convention (p.10) writes, to protect civilians from arbitrary action by the occupying army, and its purpose is to prevent acts such as the atrocities perpetrated by the Germans in World War II, during which millions of civilians were deported from their homes for various reasons, generally to Germany to serve the enemy in forced labour, along with Jews and others who were deported to concentration camps for torture and extermination.

 

It is clear that the above-mentioned Convention does not detract from the obligation of the Occupying Power to preserve public order in the occupied territory, an obligation imposed by Article 43 of the 1907 Hague Convention, nor does it detract from its right to employ the necessary means to ensure its own security; see Pictet, Humanitarian Law and the Protection of War Victims, at p. 115.

The High Commissioner, or whoever succeeded him, was not empowered to use the above-mentioned Regulation 112 as he saw fit, since Regulation 108 directs that -

 

An order shall not be made by the High Commissioner or by a Military Commander under this Part in respect of any person unless the High Commissioner or the Military Commander, as the case may be, is of the opinion that it is necessary or expedient to make the order for securing the public safety, the defence of Palestine (Land of Israel), the maintenance of public order or the suppression of mutiny, rebellion or riot.

 

This direction tells us that the powers entrusted to the authorities by virtue of the state of emergency, were granted for one sole purpose, the maintenance of public order and security. Even according to Dr. Pictet, ibid, at p. 159, this is a legitimate goal. It has nothing whatsoever in common with the deportations for forced labour, torture and extermination carried out in World War II. Moreover, the intention of the Respondent is to expel the Petitioner from the country and not to transfer him here, to remove him because of the danger he poses to the public welfare and not to draw him near so as to exploit his labour and derive benefit from him for the State of Israel.

 

            4. Professor Kretzmer, representing the Association for Civil Rights in Israel, submitted a comprehensive and exhaustive argument on this point on behalf of the Petitioners, without ignoring the inherent difficulty of moving the court to deviate from precedents established by it in the past and affirmed in subsequent hearings. He stresses, however, that we are dealing with a conspicuous error in interpretation which is incumbent upon us to correct, and that in contradistinction to previous compositions of the court, when dealing with this matter in the past, we are sitting now in an enlarged bench of five judges, and this fact as well can facilitate our adopting a decision to deviate from the aforesaid rule.

           

            5. After examining the question in all its aspects, I am inclined to accept the position of the Petitioners on this matter, and my reasons are these:

           

            a) The language of Article 49 is unequivocal and clear. The juxtaposition of the words individual or mass forcible transfers as well as deportations with the phrase regardless of their motive, [emphasis added - G.B.] admits, in my opinion, no room to doubt that the Article applies not only to mass deportations but to the deportation of individuals as well, and that the prohibition was intended to be total, sweeping and unconditional - "regardless of their motive".

           

            b) I accept the approach which also found expression in the judgment of Sussman P. in H.C. 97/79 [2], namely that the Convention was framed in the wake of the Hitler rule in Germany, and in face of the crimes perpetrated against the civilian population by the Nazis during World War II. Likewise, I would subscribe to the opinion that one may consider the historical facts accompanying the making of a convention and its purpose, in seeking the proper interpretation of its provisions. Also the Vienna Convention, upon which Professor Kretzmer relied in this context, is compatible with this possibility, since it provides in Article 31:

           

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

           

            On this issue I do not dissent at all from the opinion of the esteemed President and most of the authorities cited by him are acceptable to me as well. However, I find no contradiction between this "historical approach" and a broad interpretation of the Article in question.

           

            The crimes committed by the German army in occupied territories emphasized the need for a convention that would protect the civilian population and served as "trigger" for its framing. But this fact does not in any way refute the thesis that when framing that convention, the draftsmen decided to formulate it in broad forms, in a manner that would, inter alia, totally prevent the deportation of residents from those territories either to the occupying state or to another country.

           

            The language of the Article, seen in its own context and in light of the treaty in its entirety, does not admit, in my opinion, the construction that it is intended to prevent only acts such as those committed by the Nazis for racial, ethnic or nationalistic reasons.

           

            We must not deviate, by way of interpretation, from the clear and simple meaning of the words of an enactment when the language of the provision is unequivocal and when the literal meaning does not contradict the legislative purpose or lead to an illogical and absurd result.

           

            (c) The second portion of Article 49 supports the above interpretation. Here the Convention allows the evacuation of a population within the territory, i.e. from one place to another in the occupied area, if necessary for the security of the population or imperative for military purposes. It teaches us that the draftsmen of the Convention were aware of the need to safeguard security interests, and for this purpose even allowed the evacuation of populations within the occupied territories. The fact that this qualification was not included in the first portion, i.e. the deportation of residents beyond the borders for security reasons was not permitted, is significant.

           

            (d) Other provisions of the Convention also illustrate an awareness by the draftsmen of the security needs of the occupying state, and indirectly support the stated broad interpretation of Article 49.

           

Thus Article 78 opens:

 

If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

 

            I accept Professor Kretzmer's contention that Articles 78 and 49 should be read together, to infer from them as follows: where a person poses a security risk, one may at most restrict his freedom of movement within the territory and detain him, but one cannot deport him to another country. This idea is also expressed by Pictet in Commentary, supra, at p. 368. In discussing Article 78 of the Convention, he states:

           

It will suffice to mention here that as we are dealing with occupied territory, the protected persons concerned will benefit by the provisions of Article 49 and cannot be deported; they can therefore only be interned, or placed in assigned residence, within the frontiers of the occupied country itself.

 

            A similar conclusion emerges from an examination of Articles 35 and 48 of the Convention. The first part of Article 35, which deals with the fate of aliens in the territory of a party to the conflict, reads:

           

All protected persons who may desire to leave the territory at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to the national interests of the State.

 

            Article 48 of the Convention has a like provision concerning protected persons in the occupied territory, as follows:

           

Protected persons who are not nationals of the Power whose territory is occupied, may avail themselves of the right to leave the territory subject to the provisions of Article 35...

 

            Again one sees an alertness to the need for permitting measures to protect the interests of the occupying state. To further such an interest, one can prevent the departure of persons from the occupied territories. The absence of a similar provision permitting deportation of a person from the territory, for similar purposes, is conspicuous, especially considering that Articles 48 and 49 are contiguous to each other.

           

            Article 5 of the Convention, which deals specifically with spies and saboteurs, leads to the same conclusion. Its second paragraph reads:

           

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

 

            The rights of communication accorded to protected persons under the Convention include the right to communicate with their families (see Article 25 of the Convention), the right to communicate with the Red Cross and other organizations (see Article 30 of the Convention), and the right to maintain free contact with an attorney (Article 72 of the Convention).

           

            We see that under the Convention, the rights of spies and saboteurs can be denied in various ways, if the matter is deemed necessary for security reasons. Yet despite the alertness of the Convention's draftsmen to the security needs of the occupying power, there is no provision qualifying the sweeping prohibition in Article 49, and there is no allusion to the right to deport such persons to another state .

           

            The above-mentioned Articles of the Geneva Convention supplement the provisions of Regulation 43 of the Hague Regulations, which obligates the occupying power to ensure public order and public welfare in the occupied territories, in the sense that they indicate the measures which may be adopted in order to fulfil this obligation. In any event, nothing in Regulation 43 of the Hague Regulations is incompatible with the simple and broad interpretation suggested for Article 49.

           

            (e) A clear direction is discernible in the Convention. The freedom of movement of a "protected person" can be limited, and he can even be arrested without trial, if it is necessary in order to protect public security or another vital interest of the occupying state; this is in addition to the possibility of placing him on trial, punishing him and even condemning him to death. But the "protected person" cannot be deported; for the moment deportation to another country is carried out, the occupying state has no further control over him, and he therefore ceases to be a "protected person".

 

            (f) Most scholars subscribe to the opinion that the above broad interpretation of Article 49 of the Convention is indeed the required interpretation. Thus at p. 279 of the above-mentioned Commentary on the Convention, Pictet says the following regarding the first part of Article 49:

           

The prohibition is absolute and allows of no exceptions, apart from these stipulated in paragraph 2.

 

            This opinion has been expressed in Israel on a number of occasions and in a consistent fashion by the learned scholar, Professor Dinstein. In his article, "Settlements and Deportations in the Occupied Territories" (Iyunei Mishpat , 7 (1979-1980), 188), Professor Dinstein levels piercing criticism at the judgment in the above cited H.C. 97/79 [2], and relying on the text of Article 49 of the Convention, he writes, inter alia,  as follows (at p. 193):

           

No one would dispute that this paragraph was formulated on the basis of the bitter experiences of World War II. However, it is equally quite clear that the text of the paragraph is formulated as a total prohibition that admits no exception. A qualification that is based on military order and the security of the civilian population does appear in Article 49. However, these matters are not included in the first paragraph (which deals with deportation and exile outside the occupied territory), but rather in the second paragraph (which deals with a temporary evacuation that can and even must be performed within the occupied territory).

 

            Likewise, the question of the authority to deport and evacuate in occupied territories is discussed in Professor Dinstein's book "The Laws of War" (Schocken and Tel-Aviv University, 1983). At p. 225 of the book, Professor Dinstein mentions the Articles of the Convention (such as Article 35), which permit restricting the freedom of movement of residents of the occupied territories for the purposes of protecting certain interests of the occupying power, and he adds:

           

The position is different when the departure - or more precisely, the removal - from the occupied territory is done by force. Article 49 of the Convention distinguishes between deportation and evacuation. Deportation is the forcible transfer of civilians - on an individual or collective basis - from the occupied territory to the territory of the occupying state or to another state (whether it is occupied or not). Deportation is prohibited unconditionally and without consideration of motives.

           

            See also Professor Dinstein's "The International Law of Belligerent Occupation and Human Rights", 8 Israel Yearbook on Human Rights (1978), 104, 123.

           

            This interpretation of Article 49 of the Convention has won nearly universal acceptance and I accept it as well.

           

            6. My esteemed colleague, the President, attempts to demonstrate through a number of examples, that the simple, literal interpretation of Article 49 will lead to intolerable results. With all due respect, I do not believe that any of these aforesaid examples can lead to such a conclusion.

           

            The learned President mentions the judgment of the U.S. Supreme Court in Ex parte Quirin [27], which deals with German agents who infiltrated into the United States on an espionage mission, for which they were sentenced to death. It is clear that the case as such is not in point here, because it did not involve an occupied territory, only the territory of the United States itself, and the question of deportation did not arise there. The President is aware of this, nevertheless he expresses the following thought:

           

The event took place inside the territory of the United States; but had a similar incident occurred in an occupied territory after 1949, and it was decided not to execute the terrorists but to deport them back, whether in the framework of an exchange or in some other way, this would constitute, as it were, a serious violation of the Fourth Convention.

 

            It is difficult to see how such a hypothetical possibility can avail the arguments of my esteemed colleague. Let us in fact assume that those people spying against the United States were apprehended after 1949 in territory occupied by Americans. If we further assume that these people could expect a death sentence, then we may suppose that they would have willingly consented to be transferred to another country in order to save their lives. Nothing in the Convention prevents the willing transfer of protected persons to another country. Only forcible deportations are prohibited. But if we were to imagine that for one reason or another, these German residents would not have agreed to leave the territory, then in truth the authorities of the United States could not deport them against their will to another country (if it were determined that they were "protected persons"), without violating the Convention. If for example, a spy with communist ideological sympathies were caught in the American occupation zone in Germany, it would be permissible to arrest and punish him in every possible legal manner, but it would not be possible, according to the Geneva Convention, to deport him forcibly, not even to East Germany, the Soviet Union, or some other communist country. To the best of my knowledge, no such attempt was ever made. In any case, I do not find anything unreasonable or absurd in such an outcome.

 

            My esteemed colleague, the President, also relies on the argument that, in light of the sweeping formulation of Article 4 of the Convention which includes a definition of the term "protected persons" under the Convention, a literal interpretation of Article 49 would lead to the conclusion that one could not even deport terrorists who illegally infiltrate into the territory during the occupation; similarly that it would not be possible to extradite criminals from the territories to other states in accordance with extradition treaties.

           

            The question regarding infiltrators could arise because of a certain difficulty in the interpretation of Article 4 of the Convention, which is not free of ambiguity. Thus when that same Article 4 states that "Persons protected by the Convention are those who find themselves in case of a conflict or occupation in the hands of a Party to the conflict or an Occupying Power..." (emphasis added - G.B.) then there is perhaps room to argue that the reference is to people who due to an armed conflict or belligerence between states, have fallen into a situation where against their will they find themselves in the hands of one of the parties to the conflict or in the hands of the occupying power; whereas people who subsequently penetrate into that territory with malicious intent are not included in that definition. If and when this problem arises in an actual case, there will be a need to resolve it through an appropriate interpretation of Article 4 of the Convention, but this does not suffice, in my opinion, to raise doubts concerning the interpretation of Article 49. In the matter before us, the aforesaid difficulty is in any case nonexistent, since the Petitioners are, by all opinions, permanent residents of the territories controlled by the I.D.F.; and if the Convention under discussion applies to those territories, then the Petitioners are undoubtedly included in the definition of "protected persons".

 

            The same applies to the problem of extraditing criminals. The question as to the feasibility of an extradition treaty between states, when it concerns people who are located in territories occupied by countries which are parties to the treaty, is thorny and complicated in itself; and whatever may be the answer to this question, one can not draw inferences from this regarding the interpretation of Article 49. In any case, should it be established that it is indeed possible to extradite persons who are residents of occupied territories on the basis of the Extradition Law, 5714-1954 and the treaties that were signed in accordance with it, then regarding the possibility of actually extraditing the persons concerned, I would arrive at the same ultimate conclusion as I do regarding the Petitioners against whom the deportation orders were issued under Regulation 112 of the Defence (Emergency) Regulations, as will be detailed below.

 

            7. Despite everything I have said above, I concur in the opinion of my esteemed colleague, the President, that these petitions should be dismissed. I do indeed see a need to dissent from the rule established in H.C. 97/79 [2] regarding the interpretation of Article 49 of the Convention. On the other hand, I do not see any ground for deviating from the rule established and upheld in an appreciable number of judgments, that Article 49 of the Convention is solely a provision of conventional international law as distinguished from a provision of customary international law. Such a provision does not constitute binding law and cannot serve as a basis for petitions to the courts by individuals.

           

            This opinion, which was clarified in H.C. 606,610/78 [1] (at pp. 120 and 127) by Witkon J. and by Landau D.P. (his title then) and upheld as we have seen above by, among others, Landau P. in H.C. 698/80 [3], is deeply rooted in the judgments of this court.

           

            I would also mention the judgment of Barak J. in H.C. 393/82 [17], in which (at p. 793) the declarative and hence binding nature of the Hague Regulations is explained. The judgment goes on to state:

           

The same is not true of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, which even if applied to Israel's belligerent occupation in Judea and Samaria - this question is subject to bitter controversy and we will not express any position on it... - is essentially a constitutive convention which does not adopt existing international customs but creates new norms, whose application in Israel requires a legislative act...

 

            Only recently we re-examined the rule that a conventional international agreement has no binding force on the national level so long as it has not been adopted by the local legislator, and we upheld the existing rule on the subject [see C.A. 580,626/82 [26] at 314.

           

            I would agree in this regard with the judgment of Landau P. in H.C. 698/80 [3], in which he expresses the opinion (at p. 646) that if the Convention is to be interpreted in such a manner as to prohibit the deportation of individuals in order to preserve security in occupied territory, then this provision does not constitute a part of customary international law but at most an addition to conventional international rules.

           

            Landau P. made reference in this context to the work of G. Von Glahn, The Occupation of Enemy Territory (Minneapolis, 1957), which states, at p. 20:

           

The 1949 Convention has resulted in most valuable additions to the conventional law of military occupation, such as treatment of civilians, deportation...

(Emphasis added - G.B.)

 

            On this point I agree with the reasoning of my esteemed colleague, the President, in his judgment on the present petitions.

           

            8. I would further add that I see no grounds for our intervention in the decisions of the Respondents in this matter for the sake of justice. Indeed my opinion is, as stated, that formally the deportation of the Petitioners is included within the framework of acts to which Article 49 of the Convention applies. However, I also believe that the prevention of such acts of deportation was not the primary and dominant purpose of those who drafted the Convention.

           

            I have not ignored the fact that representatives of the state have declared on a number of occasions before this court, that it is the intention of the Government to honour as policy the humanitarian provisions of the Convention.

           

            Landau P. expressed the opinion in H.C. 698/80 [3] (at p. 627-8), that

           

the decision of the State of Israel to honour in practice the humanitarian provisions of the Fourth Geneva Convention (see the article of M. Shamgar, "The Observance of International Law in the Administered Territories", 1 Israel Yearbook On Human Rights (1971) 262) is a political decision which does not pertain to the legal sphere with which this court is concerned.

 

            I believe however, with all due respect, that this determination is too sweeping. We have here a policy declaration that as a general rule obligates the Government, and cases may arise where in the framework of rules of administrative law we will instruct the Government to honour its obligation.

           

            However, each case will be examined here in accordance with its circumstances, and in contrast with the interpretation of laws and conventions which at times require strict adherence to the meaning of words and terms, the court enjoys a flexible and broad discretion when it examines a Government policy declaration in terms of its content and spirit.

           

            It should not be overlooked that the Fourth Geneva Convention, with which we are dealing, includes a variety of provisions, the major portion of which are surely humanitarian in substance. But some are of public and administrative content and the Convention also contains provisions which can only partially be considered of a humanitarian nature. Article 49 of the Convention is indeed primarily of a humanitarian nature, but it seems that this aspect cannot predominate when it seeks, by virtue of its sweeping formulation, to prevent the deportation of individuals whose removal was decided upon because of their systematic incitement of other residents to acts of violence and because they constitute a grave danger to public welfare.

 

            In Shamgar's article - "The Observance of International Law in the Administered Territories", 1 lsrael Yearbook On Human Rights (1971), it is stated (at 262-3):

           

Humanitarian law concerns itself essentially with human beings in distress and victims of war...

           

            This definition does not fit the deportation of members of terrorist organizations to one of the neighboring countries.

           

            In any case, when we are dealing with people in respect of whom the elements of Regulations 108 and 112 in the Defence (Emergency) Regulations are satisfied, that is to say, where it has been demonstrated that their deportation is necessary for protecting public welfare and security in the Region, I would not suggest that we exercise our authority in the sphere of administrative law to order the Respondents to refrain from carrying out the deportation of the Petitioners, solely because the state has declared that in general it intends to honour the humanitarian provisions of the Convention.

           

            It should be noted and further emphasized in this context, that even counsel for the Petitioners have not argued before us that the orders nisi should be made absolute because of the aforesaid declaration by the state, should their submission, that the content of Article 49 of the Geneva Convention expresses customary international law, be rejected.

           

            There is, therefore, no room for our intervention, not even from the standpoint of the general considerations outlined above.

           

            9. In light of what I have said, and as I also agree with those portions of the President's opinion which deal with the factual aspects of the petitions, I concur in the conclusion reached by my esteemed colleague in his judgment on the fate of these petitions.

           

            Judgment given on April 10, 1988.

 

* See also the remarks of Justice Holmes in Towne  v. Eisner , 245 U.S. 418 (1918).

* That is, they are not to be applied unless they express general principles of law recognized by civilized states: O'Connell, supra, at 276.