International Humanitarian Law

 

HCJ 4466/16

HCJ 8503/16

      HCJ 285/17

HCJ 6524/17

 

 

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

 

 

The Supreme Court sitting as High Court of Justice

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

 

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Decisions of the European Court of Human Rights cited:

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

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

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

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

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

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

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

 

 

 

 

JUDGMENT

 

Justice Y. Danziger:

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

Background of the Petitions

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

 

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

 

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

 

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

 

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

 

The Parties' Arguments and the Proceedings

 

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

 

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

 

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

 

Discussion and Decision

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

Inquests, etc.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

International Law and Comparative Law

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The "Reciprocity" Claim and its Implications for the Decision

 

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

 

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

 

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

 

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

 

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

 

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

 

The Remedy

 

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

 

Comments on the Margins of the Decision

 

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

 

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

 

Summary

 

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

 

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

 

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

 

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

 

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

 

 

 

 

Justice G. Karra:

 

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

 

 

Justice N. Hendel:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

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

 

 

 

 

 

 

 

 

Petition denied.

23 Tevet 5769.

19 January 2009.

 

 

 

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

 

In the Supreme Court

Sitting as a High Court of Justice

 

HCJ 4146/11

 

Before:	Her Honor, Judge E. Arbel
	His Honor, Judge H. Melcer
	His Honor, Judge Y. Danziger
The Petitioners:	Yoav Hess + 116 other Petitioners
v.
The Respondent:	The Chief of General Staff
Petition for the grant of an order nisi
Date of session:	Sivan 4, 5773 (May 13, 2013)
On Behalf of the Petitioners:	Adv. M. Sfard,  Adv. E. Schaeffer
On Behalf of the Respondent:	Adv. Y. Roitman

 

Judgment

 

Judge E. Arbel:

1.In the petition before us, the petitioners petition the Court to order the introduction of a military command prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and is capable of achieving an equal or similar military advantage.

2.The need for the petition arose, according to the petitioners, following the extensive and unethical use, according to them, of weapons containing white phosphorus by the IDF during Operation Cast Lead (December 2008 – January 2009). According to them, during the operation many bombs containing phosphorus were dropped, and by the nature of things, because the [Gaza] Strip is densely populated with civilians, the result was extensive injury to civilians, some of whom were injured when the bombs were dropped and some much later, when the incendiary effect of the phosphorus was still active. According to them, the use of phosphorus endangered the lives of civilians, humanitarian employees and medical personnel. The petitioners argue that this is a substance which has potential for serious injuries to those who come into contact with it, and that its harmful effect lasts long after it is launched. The use thereof, it is argued, by its nature does not enable distinction between military and civilian targets, and thus even when it is aimed at legitimate targets, it might ultimately injure civilians. The petitioners’ main legal argument is that the use of white phosphorus constitutes a violation of the international law.

3.The respondent argues that the petition is of a type that the Court does not usually consider, as it deals with the weapons to be used by the IDF. The respondent also claims that there is no impediment under the law of armed conflict to using artillery shells containing white phosphorus for camouflage purposes only, including in urban warfare. The respondent emphasized that on the professional orders of the chief artillery officer, the use made of the “white smoke” shell is for camouflage purposes only. The State’s attorney, in the hearing before us, also gave notice that at this time the IDF has decided, even though it is not legally required, not to use shells containing white phosphorus in a built-up area, subject to two limited exceptions. The exceptions were presented to us in camera.

4.I will note that the petitioners motioned for the filing of expert opinions regarding the repercussions of the use of white phosphorus in a built-up area. The respondent objected to the motion and argued, inter alia, that the expertise of the opinion’s authors in the architecture field is not relevant to deciding  the question of the legality, in principle, of arms containing white phosphorus, from the legal and factual aspects. In light of our decision, as detailed below, we see no reason to allow the motion to file the opinion. Nonetheless, if the issue arises again in the future, there might be room to delve into it, and it will then be possible to consider the disagreement between the parties with regard to the relevancy of the expertise of the opinion’ authors to the questions under discussion.

Discussion

5.The first issue that must be addressed concerns the justiciability of the issue before us. While the respondent argues that this issue is not justiciable and is one that the Court does not usually consider, the petitioners claim that nowadays there is no doubt that the war is subject to laws and that the laws are subject to judicial interpretation. On this I must agree with the petitioners, within the boundaries of the restraint that this Court has imposed on itself of course, especially with regard to quintessential military matters. I will explain.

As is known, the choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of these or other weapons arise the Court will refuse to consider the matter. Clearly, where arguments arise regarding the use of weapons in a manner that contradicts the law of armed conflict, the Court will have to “enter the battlefield” and consider the arguments raised before it. The boundaries of this Court’s intervention in matters of this kind are extremely limited, but it is reserved and occurs in exceptional and special cases where there is concern of injury to established legal norms. This Court intervenes at times in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect (see HCJ 3261/06, Physicians for Human Rights vs. The Ministry of Defense (January 31, 2011) (hereinafter: “in re Physicians for Human Rights”); HCJ 769/02, The Public Committee against Torture in Israel vs. The Government of Israel, IsrSC 62 (1) 507, paragraph 52 of the judgment of President Barak (2006)), and in the words of President Barak:

            “ ‘Israel is not a desert island. It is part of the international formation’ … the Army’s warfare operations do not take place in a legal vacuum. There are legal norms – some from the customary international law, some from the international law that is anchored in conventions to which Israel is a party, and some from the basic rules of the Israeli law – that determine rules regarding warfare management” (HCJ 4764/04, Doctors for Human Rights vs. The Commander of the IDF Forces in Gaza, HCJ 58 (5) 385, 391 (2004)).”

President Beinish has also referred to the matter:

            “We have not said and are still not saying that determining the legality of the IDF’s acts vis-à-vis the residents of the area is not at all subject to judicial review, and on various occasions we have rejected the sweeping argument that these acts are not justiciable. Accordingly, this Court has, on many occasions in the past, been required to consider matters that in certain ways touch upon professional-operational aspects, at times related to acts of warfare, where they gave rise to legal questions concerning the Army’s powers during warfare – in accordance with the law of armed conflict – and the limitations imposed on it by the international humanitarian law” (in re Physicians for Human Rights, paragraph 10).”

6.In order to maintain the balance between the restraint required in this Court’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, we believe that a multi-stage review is required in petitions of this kind. First of all, it is necessary to consider whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where the use of the weapons that are the subject of the petition has been ceased on Army orders. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, there is room for the Court to proceed to the third stage, which involves an in-depth review of the arguments raised, and obtaining extensive answers to these arguments on behalf of the State. At this stage, the Court will examine the legal and factual arguments of the petitioners on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

7.The petition before us raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus. From the petition it emerges that this is a substance that might cause serious injuries to human beings, and that there are humanitarian, ethical and legal difficulties in its use in a built-up area, since it is not possible to distinguish between military and civil targets in the course of its use. These arguments, ex facie, oblige another in-depth examination. The arguments raised by the petitioners are of a dominant legal nature. Accordingly, these arguments justify proceeding to the second stage of review required by the Court. However, at this stage we believe that we must stop the judicial review, in light of the State’s declarations regarding the binding orders imposed on the Army with regard to the use of white phosphorus in a built-up area at this time. As aforesaid, the State’s attorney declared that it has been decided not to allow the use of shells containing white phosphorus in a built-up area. Although we were presented with two exceptions to this order, we were persuaded that these exceptions are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. In these circumstances, we believe that there is no room to continue reviewing the matter beyond that. Of course, if the Army’s orders change in the future it will be possible to petition this Court again.

8.It should be emphasized that we have not overlooked the position of the petitioners’ attorney that the orders to limit the use do not resolve the matter. Nonetheless, even the petitioners’ attorney stated that the central difficulties in the current state of affairs are that the respondent has not undertaken that the orders are final, and that the nature of the exceptions are unknown to him. With regard to the nature of the exceptions, as has been noted, they were presented to us with the consent of the petitioners’ attorney “in camera,” and we were persuaded that these exceptions make the use of white phosphorus an extreme exception in the most unique circumstances. With regard to the concern regarding a change in the Army’s orders in such regard, I have two comments. Firstly, since the State has not declared before us that the orders are permanent orders that prohibit the use of the substance, in the current circumstances the IDF should engage in a comprehensive and in-depth review of the use of white phosphorus in the Army, and of its risks and harms, and primarily, it should review the possible alternatives for the use of this substance. Such a review will serve either to make the current orders permanent or to substantiate a position justifying a change in the orders. In any event, it would not be suitable to wait to review the matter in an emergency. Secondly, the State should notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before this Court. 

 

Subject to the aforesaid, the petition is dismissed without an order for costs.

Given today, July 9, 2013.

 

___________________	___________________	___________________
Judge	Judge	Judge

 

 

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14^th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

2. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

3. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

	Previous Law	New Law (the Amending Order)
Initial detention until being brought before a judge for offenses that are not security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-18 year olds: 48 hours Adults: 48 hours + an option to extend up to 96 hours
Initial  detention until being brought before a judge for security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-16 year olds: 48 hours 16-18 year olds: 96 hours Adults: 96 hours + an option to extend up to 8 days
Judicial  detention for interrogation purposes prior to filing an indictment	30 days Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days. Can be extended beyond the 90 days for three additional months.	Minors: 15 days Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days. Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.   Adults: 20 days Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days. Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.
"Bridge Detention" for the purpose of filing an indictment	Unlimited	Eight days
Detention after filing indictment and before the commencement of the trial	Unlimited	60 days
Detention until the end of proceedings in offenses that are not security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: A year Extensions of up to six months each.
Detention until the end of proceedings in security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: 18 months Extensions of up to six months each.

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

	Initial detention until being brought before a judge	Detention before indictment	Detention until end of proceedings	"Bridge  Detention " for purpose of filing an indictment
In the Region – Offenses that are not security offenses	48-96 hours	20-75 days	A year + extensions of up to six months each.	Eight days
In Israel - Offenses that are not security offenses	24-48 hours	15-30 days	Nine months + extensions of up to three months each.	Five days
In the Region – Security offenses	96 hours – 8 days	20-75 days	18 months + extensions of up to six months each.	Eight days
In Israel – Security offenses	24-96 hours	20-35 days	Nine months + extensions of up to three months each.	Five days
Minors in the Region – 12-14 years old	24-48 hours	15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 14-16 years old	48-96 hours	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 16-18	Like adults: 48-96-8 days	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in Israel – 12-14	12-24 hours	20-40 days	Will not be arrested until the end of proceedings	Five days
Minors in Israel – 14-18	24-48 hours	20-40 days	Six months + extensions of up to 45 days each.	Five days

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6^th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

 

 

 

 

            Justice D. Beinisch

I agree with the opinion of the President. I also accept his conclusions in principle, which focus on the duty of the IDF to fulfil its humanitarian obligations deriving from customary international law, from international law enshrined in treaties to which Israel is a party and from the basic rules of Israeli law, in so far as it concerns the obligations imposed on the army vis-à-vis the local civilian population during the fighting; I also accept, in particular, that all the special matters with regard to which operative relief was sought have been resolved as a result of the detailed clarification of the facts concerning the position in the area and from determining the specific obligations that should be imposed on the IDF in order to allow the minimum of normal life required by the civilian population with special reference to medicines, food, medical assistance, water, electricity, treating the wounded and burying the dead with dignity.

I can only join with the important operative conclusion set out in the opinion of the President, that any military operation requires advance preparation in order to deal with the basic requirements of the inhabitants who are in the line of fire during the fighting, or who are likely to be hurt by its consequences and ramifications. This advance preparation should take into account the humanitarian obligations to the civilian population, the possibility of harm to it, and the serious consequences that should be prevented or at least minimized.

Even if it is not possible to foresee every development that may take place during military operations, there is no doubt that the basic needs of the civilian population which at a time of war are in real danger of damage to life, property and basic subsistence, are known and foreseeable. Therefore, within the framework of the operative planning of a military operation, the army must also take into account that part that guarantees the fulfilment of the humanitarian obligations to the civilian population, which is caught between the cynical exploitation of terrorists without any inhibitions, and exposure to the activity of a military force operating against the terror infrastructure. The military forces operating among a civilian population therefore have the double responsibility discussed by my colleague, the President — the obligation to refrain, in so far as possible, from harming the inhabitants, and the positive obligation to ensure that these inhabitants are not harmed, or at least the obligation to minimize the suffering and distress of those persons who find themselves in the war zone and who are exposed to its serious dangers and ravages — all of which while taking into account the necessity arising from the military operations themselves, as required in accordance with the conditions of the time and place, and without derogating from the obligation of the military commander to protect the lives of the soldiers under his command.

Failure to comply with the humanitarian obligations means that those who are injured, and usually, for practical reasons, those organizations that represent them, may apply to the court, which exercises judicial review in times of war as in times of peace. However, the circumstances involved in the judicial review process during actual war time restrict the effectiveness of the judicial review and makes it difficult to implement the solutions sought through the court.

The court does not examine the wisdom of the policy underlying military operations, nor does it intervene in the considerations involved in determining the need for military action, and this was discussed by the President in his opinion. Judicial review, which refers to the rules of international and Israeli law in times of war, requires a detailed investigation of the issues concerning the upholding of the law. The problem is that judicial review concerning the fulfilment of humanitarian obligations during wartime is limited for many reasons. First, from a practical viewpoint, the urgency with which the court is required to hold the judicial review process, while dynamic developments are taking place in the field of battle, makes it difficult to carry out the process and to make an investigation of the facts required to authenticate the contentions of the parties. Unlike the process of judicial review in regular petitions, where the mechanism of ascertaining the facts takes place after they have occurred and the particulars has been clarified, and the factual picture has been set out before the court, judicial review that seeks to examine the need for relief when the combat activities are still in progress requires a judicial proceeding of a special kind, and the petition before us is a clear example of this. The petition was heard while the changes and developments in the field were taking place during the hearing itself. The parties that presented their arguments before us based their contentions on continuous reports from the field of battle, and these reports changed the circumstances and the facts during the hearing of the petition. The factual description of ascertaining the particulars as aforesaid finds expression in the opinion of the President. In such circumstances, the judicial review process is limited and suffers from the lack of adequate arrangements with which to ascertain the relevant particulars in order to examine them in real time and to grant effective relief for them.

Second, judicial review that takes place during combat brings the court closer to the war zone in a way that requires us to find a balance between the conflicting values, a balance that derives from the court’s need not to intervene in the combat operations themselves, and at the same time to ensure that the war is conducted within the framework of the law and while complying with humanitarian obligations. These constraints do not deter the court from exercising judicial review in real time and from making operative orders, in so far as these are required in order to comply with the obligations of the military commander to uphold the rules of law during the combat. Judicial review is exercised despite the constraints that we have discussed, and this is not the first time that we have examined the issue of complying with the humanitarian rules during combat, while the cannons roar and the sounds of gunfire are still heard in the war zone.

The burden placed on the combat forces in such circumstances is a heavy one, but the weight of the burden cannot provide an exemption from the duty to discharge it, and a condition for complying with it properly is the advance preparation required of the military commanders. I therefore agree with the President’s ruling that institutional arrangements must be created to implement the humanitarian rules required during times of combat. This requires the setting up of a proper infrastructure and logistic planning before military operations are commenced, inter alia as required by the scope of the planned military action. These must guarantee the supply of medical services, equipment and medicines, the possibility of sending these to the war zone, the supply of essential services to the civilian population, food and water, the preparation of alternatives to the existing infrastructure that may be damaged and proper preparation for evacuating the wounded and burying the dead. This also applies to the other issues that can be foreseen and anticipated. No less important is the necessity of having an effective mechanism whose purpose is to monitor the needs of the population, on the one hand, and coordinate with the auxiliary forces on which the army relies in such a situation — humanitarian organizations, local authorities and organizations that represent the population vis-à-vis the army, on the other hand. The facts surrounding such preparations are not at all simple in a reality such as ours, where we are dealing with a hostile population, a population that recoils from any measure that may be interpreted as collaboration, and a population that is cynically exploited by terror organizations for their own purposes. But the reality, no matter how difficult, is the reality within which framework the military commander must comply with the humanitarian rules even in time of war.

Preparing detailed guidelines, preparing a logistic system in advance and determining rules of conduct for the combat forces vis-à-vis the population that is being harmed, and also creating a direct mechanism for maintaining contact with the various organizations operating on behalf of and in the interests of the population — these are capable of ensuring an improvement in the position even if they do not guarantee, in the very difficult reality that Israel finds itself, optimal solutions. These arrangements are capable of guaranteeing an aspiration to minimize the harm to the civilian population, compliance with the rules of international and Israeli law, and the adopting of measures to find effective solutions while reducing the need for judicial intervention to achieve the objectives of the law.

 

Petitions denied.

10 Sivan 5764.

30 May 2004.

 

HCJ 2936/02

HCJ 2941/02

 

 

HCJ 2936/02

 

Physicians for Human Rights

v. 

The Commander of the IDF Forces in the West Bank

 

 

HCJ 2941/02

 

Badia Ra’ik Suabuta 

v.

The Commander of the IDF Forces in the West Bank

  

 

The Supreme Court sitting as the High Court of Justice

[April 8, 2002]

Before Justices D. Dorner, A. Proccacia, and E. Levy.

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners claim that the IDF violated international law by firing upon medical teams, preventing the evacuation of the wounded and the sick to hospitals, preventing the removal of bodies for the purposes of burial, and preventing the supply of medical equipment to hospitals. Respondents reply that, during the course of warfare, it became clear that incidents had occurred during which explosives had been transported in ambulances, and wanted terrorists had found shelter in hospitals. However, respondents asserted, the IDF sees itself as bound to its obligations under humanitarian law, not only because this is their duty under international law, but also due to moral and even utilitarian considerations. Combat forces had been instructed to operate according to humanitarian law, and the IDF has dedicated personnel and resources to provide humanitarian aid was reaching combat areas.

 

Held: The Supreme Court held that combat forces must fulfill the rules of humanitarian law pertaining to the care of the wounded, the sick and the removal and burial of bodies. The fact that medical personnel have abused their position in hospitals and in ambulances has made it necessary for the IDF to act in order to prevent such activities but does not, in and of itself, justify sweeping breaches of humanitarian rules. Indeed, this is also the position of the State.  This stance is required, not only under the rules of international law on which the petitioners have based their arguments here, but also in light of the values of the State of Israel as a Jewish and democratic state.

 

For the petitioners in HCJ 2936/02—Andara Rosenthal

For the petitioners in HCJ 2941/02— Jamil Dakwar, Hanan Khtib, Hasan Jabareen

For the respondent—Anar Helman

 

Judgment

 Justice D. Dorner

The petitions before us were filed yesterday and today, during the height of IDF combat activities in the areas of the Palestinian Authority, in the context of “Operation Defensive Wall.” The petitions concern a number of specific events regarding shootings by IDF forces at Red Cross and Red Crescent medical teams working out of ambulances and in hospitals. The petitions are also directed against the prevention of the evacuation of the wounded and ill to hospitals to receive medical care. They are also directed against the prevention of the evacuation of bodies, so that they may be buried by the families. Petitioners also argue against the lack of provision of medical supplies to besieged hospitals.  According to petitioners, these incidents are in violation of international law.

 

In response, the State explained that, in light of the brief period at its disposal to prepare a response, and especially in light of the fact that combat continues even as the petitions are being heard, it was not possible to investigate petitioner’s claims regarding these specific events. Substantively, the State agrees that the situation regarding the care of the ill, the wounded, and the bodies of the dead, is not free of complications.  The State claims, however, that this situation is the result of the fighting itself, in the context of which it became clear that in a number of cases explosives were transported via ambulances and wanted terrorists found shelter in hospitals. Nonetheless, the State emphasized that the IDF sees itself as bound by the rules of humanitarian law, not only because these rules are binding under international law, but also because they are required by morality itself, and even due to utilitarian reasons. The State declared that the combat forces have been instructed to act according to these rules, and that the IDF has allocated forces and resources for the purpose of liaison and humanitarian aid in zones of combat. 

 

Though we are unable to express a position regarding the specific events mentioned in the petition, which are, on the face of things, severe, we see fit to emphasize that our combat forces are required to abide by the rules of humanitarian law regarding the care of the wounded, the ill, and bodies of the deceased. The fact that medical personnel have abused their position in hospitals and in ambulances has made it necessary for the IDF to act in order to prevent such activities but does not, in and of itself, justify sweeping breaches of humanitarian rules. Indeed, this is also the position of the State.  This stance is required, not only under the rules of international law on which the petitioners have based their arguments here, but also in light of the values of the State of Israel as a Jewish and democratic state.

 

The IDF shall once again instruct the combat forces, down to the level of the lone soldier in the field, of this commitment by our forces based on law and morality—and, according to the State, even on utilitarian considerations—through concrete instructions which will prevent, to the extent possible, and even in severe situations, incidents which are inconsistent with the rules of humanitarian law.

 

The petitions requested an order requiring explanations from the State. The explanation having been given, wherein it was clarified that IDF soldiers have been instructed to act according to humanitarian law, and that they are indeed so acting, the petition is rejected.

 

April 8, 2002

 

 

HCJ 8990/02

1. Physicians for Human Rights
2. The Palestinian Center for Human Rights

v.

1. Doron Almog—O.C. Southern Command
2. The State of Israel—The Minister of Defence

 

The Supreme Court Sitting as the High Court of Justice

[April 27, 2003]

Before Justices  E. Mazza, M. Cheshin, E. Hayut

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: Petitioner requested an order that would prohibit the IDF from employing flechette shells in the context of military activities in the Gaza Strip. According to petitioners, the use of flechette shells means increased danger that there will be inadvertent casualties to non-combatants. As such, petitioners assert, flechette shells should be prohibited by the law of war.

 

Held: The Court held that, since the use of flechette shells was not prohibited by international conventions, it could not grant the petition. The Court noted that it had previously held that it would not intervene in the IDF’s choice of military weapons, which it employs order to prevent terrorist attacks. The Court further held that it believed that the IDF had properly set out the conditions under which the use of flechettes was authorized. Of course, the question of whether the use of flechettes is justified under individual circumstances is given to the discretion of the authorized commander. This commander will act according the military directives, which are intended to prevent casualties among residents who do not endanger the IDF forces or Israeli civilians.

 

Treaties Cited

United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980)

 

Israeli Supreme Court cases cited:

[1]HCJ 5872/01 Barakeh v. The Prime Minister, IsrSC 56(3) 1

 

Petition denied.

 

For the petitioners—Y. Argon, Y. Zur

For the respondent—Y. Gensin

 

 

JUDGMENT

Justice E. Mazza

Petitioners request an order nisi that will order the Israeli Defense Forces, in the context of its operations in the Gaza Strip, to cease using flechette shells. A flechette shell contains a cluster of steel darts. When a flechette shell detonates, at a certain height above the ground, these darts are dispersed over an area of several hundred square meters. Like other armaments that contain submunitions—such as cluster bombs—flechettes are intended to be used against field targets, as opposed to distinct, individual targets.

 

According to petitioners, the use of flechette shells violates the laws of war, which prohibit the use of weapons that do not discriminate between combatants and non-combatants. Petitioners point to two instances in which flechette shells have caused civilian deaths. In the first incident, a flechette shell was used to respond to fire upon a military position in Netzarim, in the Gaza Strip. The shell landed near a Bedouin encampment and caused the deaths of three women. In the second incident, flechette shells were fired upon individuals suspected of being terrorists, on their way to carry out a terrorist attack. In this incident, three youths were killed. As such, petitioners assert that the use of flechette shells is illegal, and that the IDF should be completely prohibited from using such shells.

 

Respondents assert that the question of whether to prohibit the use of flechette shells, in the context of the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980) [hereinafter The 1980 Convention on Certain Conventional Weapons], has been raised several times before various international forums. However, a prohibition against the use of flechette shells has never received significant international support. The 1980 Convention on Certain Conventional Weapons completely prohibited the use of other weapons. Israel joined this treaty in 1995, subsequently ratified it, and sees itself as bound by its provisions. But this treaty does not ban the use of weapons that contain submunitions, such as flechette shells. As such, petitioner's claim that the use of flechette shells is prohibited by the law of war is incorrect, and should be rejected.

 

Respondents do not dispute that the use of flechettes—which are intended to be used against military targets in a combat zone—entails increased danger towards civilians that inadvertently enter the zone of fire. Respondents assert, however, that the use of flechettes, according to the military authorities and professionals that command the IDF forces in the Gaza Strip, is absolutely necessary under current security conditions. At the same time, however, respondents emphasized that military directives ensure that the use of flechettes will not become frequent or regular. These directives detail the only circumstances under which field commanders are authorized to use flechette shells. In general, and without fully detailing the matter, these directives restrict the use of flechettes to circumstances under which there exists no significant chance of injuring innocent civilians, and they may only be used against those suspected of activities that will injure the IDF forces or Israeli civilians.

 

With regard to the incidences raised by petitioners, in which the use of flechettes caused civilian casualties, respondents detailed the circumstances surrounding each incident. Respondents assert that, though they mourn the loss of innocent life, the use of flechettes during both of the cited incidents did not contravene the conditions set down by the directives. Furthermore, respondents assert that, according to their estimates, the civilians injured by the flechettes would probably have been injured by standard shells also.

 

Petitioners request that we prohibit the military from using flechette shells. As the use of such artillery is not prohibited by international conventions, we cannot grant their petition.  Our decisions have stated that “this Court will not intervene in the choice of military weapons, which the respondents use in order to prevent vicious terrorist attacks.” See HCJ 5872/01 Barake v. The Prime Minister [1]. We further note that we think the IDF has properly set out the conditions under which the use of flechettes is authorized. Of course, the question of whether the use of flechettes is justified under individual circumstances is given to the discretion of the authorized commander. This commander will act according the military directives, which are intended to prevent casualties among residents who do not endanger the IDF forces or Israeli civilians.

 

Petition denied.

 

 

 

 

 

 

 

 

 

 

 

 

CrimFH 7048/97

                                                                    

John Does

v.

Ministry of Defence

 

The Supreme Court Sitting as the Court of Criminal Appeal

[April 12th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, D. Dorner, J. Türkel

 

A  further hearing on the judgment of the Supreme Court (President A. Barak, Justices Y. Kedmi and D. Dorner) in ADA 10/94, November 13, 1997.

 

Facts: The petitioners were citizens of Lebanon, who were brought to Israel between the years 1986-1987 by the security forces, and put on trial for their membership in hostile organizations and for their involvement in attacks against IDF and LDF.  The petitioners had been convicted and sentenced to various sentences of imprisonment, which they served.  Subsequently, the petitioners were held in administrative detention under section 2 of the Emergency Powers (Detentions) Law 5739-1979.  This administrative detention was extended from time to time, for additional six month periods, in accordance with the same section.  The question before the court was whether a person can be held in administrative detention – when that person himself does not pose a danger to national security –for that person to serve as a “bargaining chip” in the negotiation to release prisoners or missing persons from among the Israeli security forces?

 

Held: As per the judgment of President Barak, whose view was shared by Vice-President Levin, and Justices Or, Mazza,  Zamir and Dorner, and against the opposing opinions of Justices M. Cheshin, Y. Kedmi, and J. Türkel, the Court held that according to the Emergency Powers (Detentions) Law 5739-1979 there is no authority to detain a person from whom no danger is posed to national security, and therefore it concluded that the respondent does not have the authority to detain the petitioners by authority of the Emergency Powers (Detentions) Law 5739-1979. Therefore, the court ordered the release of the prisoners.

 

Basic law cited:

Basic Law: Human Dignity and Liberty, ss. 2, 4, 8, 10.

 

Legislation cited:

Emergency Powers (Detentions) Law 5739-1979, ss. 1, 2, 2(A), 2(B), 4, 5.

Penal Law-5737-1977, s. 43U.

 

Regulations cited:

Defence (Emergency) Regulations, 1945, r. 119.

 

International treaties and conventions:

Fourth Geneva Convention (Relative to the Protection of Civilians during Times

of War) 1949, articles 34, 147

Third Geneva Convention article 118.

International Convention against the Taking of Hostages, 1979.

 

Israeli Supreme Court cases cited:

ADA 10/94 [1] John Does v. State of Israel IsrSC 53(1)97.
HCJ 4400/98 Ismail Braham v. Legal-Expert-Judge Colonel Moshe Shefi (not yet reported).
ADA 2/86 John Doe v. Minister of Defence IsrSC 41(2) 508.
HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee for the 13th Knesset IsrSC 46(2) 692.
HCJ 693/91 Efrat v. Director of Population Ministry, Ministry of Interior [1993] IsrSC 47(1) 749 at 763.
CA 105/92 Re’em Mehandesim Kablanim Ltd v. the City of Nazareth Elite, IsrSC 47 (5) 189.
HCJ 58/68 Shalit v. Minister of the Interior (1969) IsrSC 23(2) 477.
CA 165/82 Kibbutz Hazor v. Rehovot IsrSC 39(2) 70.
ADA 2/82 Lerner v. Minister of Defence IsrSC 42(3) 529, at 532
EA 1/65 Yardor v. Chairman of Knesset Elections Committee (1965), IsrSC 19(3) 365 at p. 390). 
MApp 15/86 State of Israel v. Avi Tzur IsrSC 40(1) 706 at 713.
CrimMApp 335/89 State of Israel v. Lavan IsrSC 43(2) 410.
HCJ 2320/98 Elmamala v. IDF Commander IsrSC 52(3) 346.
ADA 7/94 Ben Yosef v. State of Israel (not reported). 
ADA 2/96 State of Israel v. Freedman (not reported).
EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.
HCJ 2006/97 Mison Mahmet Avu Fara Ganimat v. Central Command General Uzi Dayan IsrSC 51(2) 651.
ADA 4/94 Ben Horin v. State of Israel IsrSC 58(5) 329 at 333-335). 
CrimA 6182/98 Sheinbein v. Attorney General (not yet reported). 
HCJ 279/51 Amsterdam v. Minister of the Treasury IsrSC 6 945 at 966.
CrimA 336/61 Eichmann v. Attorney General IsrSC 17 2033, at 2041.
CA 522/70 Alkotov v. Shahin IsrSC 25 (2) 77.
HCJ 4562/92 Zandberg v. Broadcasting Authority IsrSC 50(2) 793.
CA 243/83 Jerusalem Municipality v. Gordon, IsrSC 39(1)113.
CA 376/46 Rosenbaum v. Rosenbaum, IsrSC 2 235.
HCJ 5100/94 The Public Committee against Torture v. Government of Israel (not yet reported).
HCJ 3267/97 Rubinstein v. Minister of Defence IsrSC 52(5) 481.
ADA 1/91 Plonim v. Minister of Defence (unreported).
ADA 1/94 Plonim v. Minister of Defence (unreported).
ADA 1/93 Plonim v. Minister of Defence (unreported).
CrimA 6696/96 Kahane Binyamin v. State of Israel (not yet reported).
CFH 2401/95 Ruth Nahmani v. Daniel Nahmani IsrSC 50(4) 661.
HCJ 606/78 Eyov and others v. Minister of Defence IsrSC 33(2) 113. 
CrimA 437/74 Kwan v. State of Israel IsrSC 29(1) 589.
HCJ 320/80 Kawasame v. Minister of Defence IsrSC 35(3) 113.

 

Israeli books cited:

A. Barak, Interpretation in Law, Vol. 2 (1994).
S.Z. Feller Foundations in Criminal Law, Vol. A, 1984.
A. Barak, Interpretation in Law, Vol. 1, Rules of General Interpretation (1994).
I. Englard, Introduction to Jurisprudence (1991).
A. Barak, Interpretation in Law, Vol. 3, Constitutional Construction (1984).

 

Israeli articles cited:

L. Klinghofer ‘Preventive Detention for Security Reasons’ Mishpatim 11 (1981).
Y. Sussman, ‘Some of the Rationales of Construction’ the Jubilee Book for Pinhas Rosen, 147 (1962).
S. Shetreet ‘A Contemporary Model of Emergency Detention Law: An Assessment of the Israeli Law’ 14 Israel Yearbook on Human Rights (1984) 182.
I. Zamir ‘The Rule of Law and the Control of Terrorism’ 8 Tel Aviv University Studies in Law (1988) 81.
M. Gur Aryeh, ‘Proposed Penal Law (Introductory Part and General Part) 5752-1992’, Mishpatim 24 (1994-2995) 9.

 

Foreign books cited:

G. Robertson Freedom, the Individual and the Law (London, 6th ed., 1989).

[47]A.F. Bayefsky International Human Rights Law (Toronto and Vancouver, 1992).

 

Foreign articles cited:

[48]M.P. O’Boyle “Emergency Situations and the Protection of Human Rights; A Model Derogation Provision for a Northern Ireland Bill of Rights” 28 Northern Ireland L.Q. (1977) 160.

O. Ben-Naftali, S. Gleichgevitch “Missing in Legal Action: Lebanese Hostages in Israel” 41 Harv. Int’l. L. J. (2000) 185.

[50]Y. Dinstein “The Application of Customary International Law Concerning Armed Conflicts in the National Legal Order – Introductory Reports” National Implementation of Humanitarian Law – Proceedings  of an International Colloquium held at Bad Homburg, June 17-19, 1988 (Dordrecht, M. Bothe and otherseds., 1990) 29.

 

Jewish law sources cited:

Ecclesiastes 1, 6.
Yoma 21 p. A.

 

Other:

International Convention against the Taking of Hostages, 1979.

 

For the petitioner—Tzvi Risch.

For the respondents —Shai Nitzan.

 

JUDGMENT

 

President A. Barak

May a person be held in administrative detention – when that person himself does not pose a danger to national security – when the purpose of the detention is for that person to serve as a “bargaining chip” in the negotiation to release prisoners or missing persons from among the security forces? – This is the question before us in this further hearing.

The Facts

1.  The petitioners are citizens of Lebanon.  They were brought to Israel between the years 1986-1987 by the security forces.  They were put on trial for their membership in hostile organizations and for their involvement in attacks against IDF and LDF forces.  They were convicted and sentenced to various sentences of imprisonment.  All the petitioners completed their prison terms.  Despite this, they were not released from prison.  At first they were held in detention by authority of the deportation orders that were issued against them.  Later – beginning May 16, 1991 – as to petitioners 8-10, and beginning September 1, 1992 as to petitioners 1-7 – they were held in administrative detention by authority of the orders of the Minister of Defence that were issued in accordance with section 2 of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter: “the Detentions Law”).   This administrative detention was extended from time to time, in accordance with the same section, by an additional six months.  On August 22, 1994 an additional extension was requested.  The extension was authorized by the Vice-President of the District Court in Tel-Aviv Jaffa.  An appeal was filed on this decision to this court (ADA 10/94 [1]).  The judgment in the appeal serves as the subject of this further hearing.  It is to be noted that in the interim the Minister of Defence decided to release two of the petitioners (petitioners 1 and 8).

2.  There is no debate among the parties that the petitioners themselves do not pose a threat to national security.  They served their sentence and under normal circumstances they would be deported from Israel.  There is also no debate that the reason for the detention of the petitioners is the hastening of the release of prisoners and missing persons from among the security forces, and in particular the release of the navigator Ron Arad, who has been missing since his airplane was downed (on October 16, 1986) in the skies of Lebanon.  Indeed, the petitioners are held in administrative detention as “bargaining chips” in a difficult negotiation that Israel is undertaking for the release of Ron Arad and other prisoners and missing persons from among the security forces.  The debate between the parties – which is at the center of the judgment the subject of this further hearing was twofold: first, is the Minister of Defence authorized to issue an administrative detention order when the only reason for issuing it is the release of prisoners and missing persons from among the security forces, without there being a specific risk from the detainees themselves?  Second, was the discretion of the Minister of Defence properly exercised?

3.  In the Supreme Court, the views were split.  The majority justices (President Barak and Justice Kedmi) answered both questions in the affirmative.  It was determined that return of prisoners and missing persons from among the security forces, is, on its own, a purpose and interest that is included within the framework of national security, and the authority of the Minister of Defence also encompasses the case in which there is no danger to national security from the detainees themselves, and the whole purpose of their detention is to hold them as “bargaining chips”.  So too it was determined that under the circumstances, exercising the discretion of the Minister of Defence was lawful.  The majority justices were convinced that there exists a concern, at the level of near certainty that the release of the petitioners will bring about a real harm to national security and that the continued detention of the petitioners was essential for continuation of the negotiation for the release of the prisoners and missing persons.  It is to be noted that under the circumstances there is no alternative to detention that can be utilized; whose infringement on the basic rights of the petitioners would be less.

4.  The minority opinion (Justice Dorner) determined that the Minister of Defence does not have the authority to order the detention of a person who does not pose a danger to national security.  The purpose of the detention is the prevention of danger to national security or public safety from the detainee himself, as long as this goal cannot be achieved by a criminal proceeding.  Justice Dorner also determined that as for exercising the discretion of the Minister of Defence, the Minister of Defence was not able to show that there exists a near certainty, and not even a reasonable possibility, that the release of the petitioners would undermine the possibility of releasing prisoners and missing persons from among the security forces.

5.  The petitioners applied for a further hearing to be held in the judgment of the Supreme Court.  Vice-President S. Levin granted the application (on January 25, 1998), and determined:

“It has been decided to hold a further hearing on the question of the validity of an administrative detention by authority of the Emergency Powers (Detentions) Law 5739-1979, where this detention takes place for the reason that it may advance the release of prisoners and missing persons from among the security forces.”

The further hearing took place in the form of written summations and oral arguments.  The respondent directed our attention to the fact that a number of the petitioners in the further hearing were not parties to ADA 10/94[1].  The application of the counsel for the petitioners to join them to the further hearing proceedings was denied (on August 11, 1998) by me.  So too the panel decided (on January 1, 1999), with the consent of the parties, to consider the two appeals that were filed in the Supreme Court (ADA 5700/98 and ADA 5702/98) – which deal with Lebanese detainees who are not among the petitioners – separately.

6.  The opening of the arguments before us concentrated – as said in the decision of my colleague, Vice-President, Justice S. Levin – with the question of the authority of the Minister of Defence.  During the course of the arguments we decided (on February 1, 1999) to examine “in the special circumstances of the case, and with the consent of the parties” ex parte the confidential information in the hands of the respondent, and this “without taking a stand at this stage as to the relevance of the material to determination of the petition.”   We heard, behind closed doors, the head of the research unit in the intelligence section in the army general command (on May 26, 1999).  Pursuant to this we received a supplementary notice (on August 26, 1999) and an application on behalf of the State Attorney General.  This is the language of the supplementary notice:

“(1) The various aspects that arose in the course of the hearings in this hon. court were brought to the attention of the entities at the head of the IDF and the political ranks, and at their head the Prime Minister and the Minister of Defence.

(2)In a hearing that was held on this matter in the office of the Minister of Defence, attended by the Attorney General, senior officials from the State Attorney’s Office who are dealing with this case, and the entities from the Ministry of Defence dealing with this, headed by the Chief of Staff, the various issues that arise in this case were discussed, including the moral and security issues it entailed.

(3)  At the conclusion of the discussion after the majority of those present made their opinion heard, the Prime Minister and Minister of Defence decided as follows:

A.  In all that relates to issues which deal with the matter of prisoners and missing persons, including Ron Arad, the following primary considerations exist:

1)  An effort to clarify what has come of their fate in order to be able to bring them back to Israel.

 2)  The State of Israel is obligated to make every effort in this area, since the State is the one that sent them to battle.

B.  The State of Israel is before negotiations that have been bounded to a defined time frame of 15 months, in which it will be clarified whether there is a possibility of reaching a political solution in the area in which we live. The issue of the prisoners and the missing persons is an inseparable part of this negotiation and only now is the framework for negotiation in the hands of each party, being held up to the ultimate test.

C.  Return of the prisoners now, before the beginning of the negotiation, will leave the State of Israel without a means of bargaining in this issue in the framework of negotiation.

D.  During the course of the negotiation and along with its advancement we can assess the chances of reaching a solution in the time allotted for this, and so too, it will be assessed whether it is possible to release some of the detainees in this timeframe.

In any event at the conclusion of the 15 months that were allotted or a shorter time frame, in the course of which the negotiation will be concluded and if it turns out, we hope not, that these detainees do not fill any role in the release of the prisoners or missing persons, it would be proper, in the view of the Minister of Defence as well, to reconsider the approach as it was formulated in the Defence Authority, in the spirit of the comments of the court.

E.  The Minister of Defence is of the view therefore that the continued detention of the petitioners during said time period is vital to the continuation of the negotiation and the advancement of the release of prisoners and missing persons.

(4)  In conclusion, the Attorney General wishes to add:

A.  With all due respect it appears that the conclusion of the President in ADA 10/94 [1] that ‘it is possible in principle and in exceptional circumstances to detain a person for acts and danger which are rooted in another’ indeed emphasizes the exceptional nature of the circumstances, meaning the enormous effort to free the prisoners and missing persons.

This exceptional nature must by nature be examined thoroughly and at all times, as one who is detained in administrative detention in these circumstances is an exception even to the administrative detention which itself is an exception in the realm of human dignity and basic rights.

B.  Therefore, the proportionality of the act must be examined at all times and the date that the judgment was handed down, November 13, 1997, is not like the date after almost two years have passed (and over a year after the filing of the appeal by the State on the decision of Justice Ilan) in which no progress has been made in the matter of the release of the prisoners and missing persons.

Under these circumstances it is the opinion of the attorney general that the scales tip slightly in favor of gradual release of the prisoners in a manner that will signal consideration, such as beginning with the mentally ill, or the younger ones, or those who have not started a family, as part of a legal-humane-moral approach.

The attorney general is aware that for now the opinion of the holder of authority, the Minister of Defence is different; but it is possible that starting the release will also have a positive impact on the negotiation, thereby enabling integration of the two approaches.

(5)  In addition to what has been said above we wish to update:

A.  The Arad family has met recently with the Attorney General.  At the meeting the State Prosecutor, the Head Military Prosecutor and additional entities from the IDF and the Justice Ministry were present.

In the meeting it was clarified that the Arad family asks in every way possible to be heard before this hon. court.

(6)  In light of the sensitivity of the topic and its history and its human and public interest, the Attorney General is of the view that this is appropriate and that it is proper to hear the family’s viewpoint.

This hon. court is therefore requested to decide on the matter of the petition of the Arad family.

(7) In light of all that was said above, we request that in accordance with the decision of the Court in the matters mentioned above, an additional date be set for a hearing, in which the Arad family will have the opportunity to be heard before this hon. court, and to the extent necessary an authorized entity from the military-security ranks, will appear and clarify before the court additional clarifications in all that relates to the matters raised above.”

Counsel for the petitioners responded to the supplementary notice (on September 9, 1999).  He expressed his objection to delaying determination of the appeal for an additional fifteen months.  In his opinion, foreign considerations are at the root of the application. Counsel for the petitioners also objected to the application to hear the Arad family.  Despite this we decided (on November 8, 1999) to hear (in writing) the Arad family.  In its letter the Arad family notes that Ron Arad was taken prisoner approximately 13 years ago.  His daughter, who was a year and three months when he was taken prisoner, is fourteen today.  Ron Arad fell in the hands of individuals lacking any moral or other restraint.  He was “sold” from place to place. His captors dragged him from place to place, held him in conditions, which are not even conditions, and refused to let the Red Cross visit him.  His captors treated him according to the “the laws of the jungle”.  It is not appropriate that the State of Israel deny itself any means when trying to bring him back.  The Lebanese detainees willingly took part in the battle against Israel.  Just as Ron Arad was aware of the dangers entailed in flying in the skies of an enemy country, so too were the Lebanese detainees aware of the dangers entailed in their activity against Israel, including their involvement in the imprisonment of Ron Arad.  In this sense the war in Lebanon is not over and as long as Ron Arad has not been brought back to Israel it is not appropriate to return the detainees to Lebanon.  According to the assessment of security entities it is possible that Ron Arad is still alive.  This working premise is not to be dismissed or ignored.  Release of the Lebanese detainees will send a message to Israeli society and persons in the security forces that the court will tie the hands of the State of Israel when it comes to take steps to protect their liberty, life, and security.

7.  Consequently, three applications have been brought before us: an application by the Arad family (that was included in the position paper submitted on their behalf, in accordance with our decision of November 8, 1999) to bring their words before us orally; the application of the petitioners to bring their words before us in the framework of a letter (as to this both an application by their counsel and the letter written by the petitioners were submitted); and the application of the State Attorney General to set another date for consideration of the petition.  After considering these applications we decided (on December 12, 1999) to make do with the written position paper submitted by the Arad family.   We also decided to accept the letter of the petitioners themselves.  In this letter the petitioners note that the human rights of the detainees were denied – in contradiction of international treaties and basic tenets.  They have been in Israeli prison for 13 or 14 years.  Some of them that were put on trial served their sentence some time ago.  Most were under the age of 20 when they were detained.  The goal of detaining them is not clear: at times it is claimed, that it is intended to advance the return of those missing in action from the Sultan Ya’akub battle, and at times it has been tied to the subject of Ron Arad and at times it appears that they are held as a general bargaining chip for the negotiations with Syria and Lebanon.  They have no connection to the Sultan Ya’akub battle as most of them were still children in 1982.  Some of them have been in Israeli imprisonment since before Ron Arad was captured.  The time that passed in prison proves that there is no use in keeping them in prison, as the matter of Ron Arad has not advanced at all.  The detainees are simple people, lacking any status or influence in Lebanon.  They have no information about Ron Arad or connection to his being held in prison.  The Hezbollah organization has repeatedly declared that it has no information or connection to Ron Arad, and the Israeli working premise is that Ron Arad is not in Lebanon at all.  The head of Internal Security Service himself declares (based on newspaper reports) that there is no point in the continued detention of the detainees.

8.  As we have seen, counsel for the respondent requested that we set another date for the hearing.  We requested to hear (within seven days) the position of the counsel for the petitioners.  In his response (of December 27, 1999) counsel for the petitioners objected to the setting of another date for the hearing.  Despite this, we decided to hold a hearing (on July 1, 2000).  In this hearing we heard the arguments of the counsel for the parties.  We also received information (behind closed doors) as to the efforts being made lately to obtain details as to the fate of Ron Arad.  Now the time has come hand down our judgment.

The Petitioners’ Arguments

9.  According to the petitioner’s claim, the Detentions Law is not to be interpreted as including authority for the administrative detention of a person solely as a “bargaining chip”.  According to their claim, the basic principles of the liberty of the individual and their dignity, as they have been expressed in the framework of the Basic Law: Human Dignity and Liberty, unravels the basis for the detention of the petitioners in administrative detention.  Detaining them as such stands not only in contrast to the purpose of the law and the intention of the legislator, but also in contradiction of international law.  Returning prisoners and missing persons is in fact an important interest, but it is not part of “national security” in its meaning in the Detentions Law.  According to the petitioners, the Detentions Law surrounds and relates only to a situation in which a personal risk is posed by the detainee.  The administrative detention is an individual act based on a person’s personal responsibility for his actions.  Alternatively, the petitioners argued that there is no factual and evidentiary basis for holding them in administrative detention, and that there exist less damaging alternatives for achieving the goal for which they are detained.  For these reasons, the petitioners are of the view, that the opinion of Justice Dorner in ADA 10/94 [1] is to be adopted, and it is to be determined that the Minister of Defence deviated from his authority when he ordered their detention in administrative detention.

The Respondent’s Arguments

10.  According to the respondent’s claims, the Minister of Defence is indeed authorized to detain a person in administrative detention even where the reason for his detention is just to serve as a “bargaining chip”.  Protecting the safety of IDF soldiers and their return from imprisonment is included within the term “national security” in the Detentions Law, meaning, in the language of the law.  The purpose of the law also includes the authority for administrative detention in the circumstances of the case before us.  The law is intended to address serious dangers and unexpected events, in order to protect national security.  Such is the situation before us.  For this reason the law was not worded narrowly but broadly, in order to address those extreme and exceptional situations in which a person’s detention is necessary in order to protect national security and public order.  According to the respondent’s approach, the legislator’s (subjective) intent does not include a clear indication that the authority in the law does not include administrative detention as a “bargaining chip”.  So too, it is argued, the principle of personal responsibility is an important principle, however, the very authority in the law is an exception to this principle and from here stems the authority to deviate from it.  According to the respondent’s claim, examining the case before us in the perspective of the Basic Law: Human Dignity and Liberty, also supports the position of the majority in ADA 10/94 [1].  This is so, as the administrative detention under the circumstances is “for an appropriate purpose and to a degree that does not surpass that which is necessary.”  Therefore, the basic law does not change the construction of the Detentions Law in the context before us, and does not justify deviation from previous judgments of this court, which recognized the authority of the Minister of Defence to detain a person, just as a “bargaining chip”.  As to international law, the respondent claims that there is not a customary law prohibition on the taking of “hostages” and the prohibition in conventional law in this matter, does not apply in this case.  Whether for its non-application to the petitioners – who are “terrorists” according to its claim; whether due to the lack of applicability of conventional law to the State of Israel or whether due to the existence of a contradictory statutory provision in the domestic law, such as the Detentions Law.  For these reasons, the respondent argued, the judgment in ADA 10/94 [1] is to be left as is, and the application in the further hearing is to be dismissed

The Normative Framework

11.  The detention of the petitioners in administrative detention is done by authority of the Emergency Powers (Detentions) Law 5739-1979.  This law applies only when there is a valid declaration of a state of emergency (section 1 of the law).  The detention authority is granted to the Minister of Defence (section 2 of the law).  An important and necessary element for granting validity to a person’s administrative detention is the judicial review (section 4 of the law).  A person against whom an administrative detention order has been issued must be brought before the President of the District Court within 48 hours.  The court is obligated to review the considerations of the Minister of Defence and will at times re-examine the evidentiary foundation on the basis of which the administrative detention order was issued (see HCJ 4400/98 Ismail Braham v. Jurist-Judge Colonel Moshe Shefi [2]; ADA 2/86 John Doe v. Minister of Defence [3]; L. Klinghofer ‘Preventive Detention for Security Reasons’ [41] 286).  Even if the order is authorized, there is a duty to bring the matter and the validity of the detention order for re-examination before the court, at least once every three months (section 5 of the law).  The further hearing before us revolves around the scope of the authority of the Minister of Defence to detain a person under administrative detention, meaning, it revolves around the interpretation of section 2 of the Detentions Law, of which this is the language:

“2 (a) Where the Minister of Defence has a reasonable basis to assume that reasons of national security or public safety necessitate that a certain person be held in detention, he may, with an order bearing his signature, order the detention of a person for a period that will be noted in the order and which shall not exceed six months.

(b) Where the Minister of Defence has a reasonable basis to assume, on the eve of the expiration of an order based on subsection (a) (hereinafter – the original detention order), that reasons of national security or public safety continue to necessitate holding the detainee in detention, he may, with an order bearing his signature, order, from time to time, the extension of the validity of the original detention order for a period which shall not exceed six months, and the law as to the extension order is as the law of the original detention order in all aspects.”

In the judgment the subject of this further hearing this provision was reviewed in both the realm of authority and the realm of discretion.  Logically, the question of authority is to be considered first.

12.  The authority of the Minister of Defence to order administrative detention is conditioned on the fact that the Minister has reasonable grounds to assume that reasons of national security or public safety necessitate that a certain person be held in detention (section 2(a) of the Detentions Law).  I am now of the view – as I was in the judgment the subject of this further hearing – that in the textual realm, the statement “national security” is sufficiently broad to also encompass within it situations in which the danger to national security does not stem from the detainee himself but from the actions of others, which may be impacted by the detention of that person.  There is nothing in the statement “national security” in and of itself that can point in the textual realm to the detainee himself posing a danger to national security.  But as is known, the textual realm is not the only realm to be taken into consideration.  The interpreter is none other than a linguist.  As interpreters, we need to give the statement in the law the same meaning – among the totality of textual meanings (over which the judge is in charge as linguist/philologist) – which realizes the purpose of the law.  What is the purpose of the Detentions Law?

13.  As is known, the purpose of the law is a normative concept.  It includes its subjective purpose and its objective purpose.  (See HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee for the 13th Knesset [4] at p. 706).  We will open with the subjective purposes.  These are the purposes which were examined by the legislators, and in fact, left by it at the foundation of the law.  That is the “legislator’s intent”.  We can learn about these purposes from the language of the statute and the legislative history.  This examination in the case before us does not reveal a clear-cut picture.  It is true, one can find expressions in the Knesset which relate to the danger posed by the detainee himself to national security (see, for example, the words of the Minister of Justice brought by my colleague, Justice Dorner, in paragraph 2 of her opinion which is the subject of this further hearing).  Certainly that would be the natural and simple case.  But, no basis is to be found in the Knesset minutes for the approach that the Knesset sought, in fact (as a historical fact), to limit the application of the law only to the detention of people who themselves posed a threat to national security.  It appears that the problem before us – applying the law to one from whom no danger is posed – did not come up for discussion, and was not, in fact, examined, by those dealing with the tasks of legislation.  There is therefore no escape but to turn to the objective purpose at the foundation of the Detentions Law.

14.  The objective purpose of the law (in Sussman’s words “the legislative objective” ‘Some of the Rationales of Construction’ the Jubilee Book for Pinhas Rosen, 147 (1962) [42] at 160.) is the purpose that the statute was intended to fulfill in our society.  It is derived from the type of law and its character.  It is meant to realize the foundational values of the system.  It expresses the values of the State of Israel as  Jewish and democratic state (see HCJ 869/92 [4] supra; HCJ 693/91 Efrat v. Director of Population Ministry, Ministry of Interior [5] at 763; CA 105/92 Re’em Mehandesim Kablanim Ltd v. the City of Nazareth Elite [6] at 198),  Indeed the law is a “creature living within its environment” (Justice Sussman in HCJ 58/68 Shalit v. Minister of the Interior (1969) [7] at 513).  This environment includes the proximate legislative context; this environment also sprawls out onto “broader circles of accepted principles, foundational goals and basic criteria” (CA 165/82 Kibbutz Hazor v. Rehovot [8] at 74).

15.  What is the objective purpose of the Detentions Law as far as it relates to the problem before us?  The answer is that this purpose is twofold: On the one hand, safeguarding national security; on the other hand, safeguarding the dignity and liberty of every person.  These purposes are apparent from different circles which surround the law.  The closer circle, which focuses on the statute itself and its types of arrangements, contains within it an integrated purpose that deals with protection of national security while taking care with human liberty and dignity.  For this reason the law limited (in section 1) the administrative detention authority for a period in which the State is in a state of emergency, and for the same reasoning a process of periodic judicial review was established (in section 4) over exercise of authority.  A similar amalgamation also arises from the more distant circle, which gives expression to the foundational values of the system.  These values also include the Jewish and democratic values of the State of Israel as a liberty and dignity seeking state alongside the social interest in safeguarding national security.  We will briefly discuss each of these (objective) purposes and the balance between them.

16.  Safeguarding national security is the societal interest that each state wishes to realize.  In this framework, democratic freedom seeking states recognize the “institution” of administrative detention (see O’Boyle, ‘Emergency Situation and the Protection of Human Rights: A Model Derogations Provisions for Northern Ireland Bill of Rights’ [48] at 160; Shetreet, ‘A Contemporary Model of Emergency (Detention) Law: An Assessment of the Israeli Law’[43] at 203).  The need for this means stems, inter alia, from the difficulty in finding a response within criminal law to certain threats to national security (see ADA 2/82 Lerner v. Minister of Defence [9] at 532).  Indeed we are a “defensive democracy” (see EA 1/65 Yardor v. Chairman of Knesset Elections Committee [10] at p. 390).  The daily struggle against terrorism requires more often than once the use of unconventional means (see Zamir, ‘The Rule of Law and the Control of Terrorism’[44]).  One of those means is administrative detention.

17.  Safeguarding the liberty and dignity of every person and protecting this liberty and dignity are basic constitutional rights in Israel (see section 2 and 4 of the Basic Law: Human Dignity and Liberty).  The liberty and the dignity are at the base of our social order.  They are the foundation for all the other basic rights (see MApp 15/86 State of Israel v. Avi Tzur [11] at 713; CrimMApp 335/89 State of Israel v. Lavan [12] at  419-420).  Therefore, the protection and safeguard of the liberty and dignity of the individual is a basic value which stretched out over all statutes (see HCJ 2320/98 Elmamala v. IDF Commander [13]).  Such safeguarding and protection of liberty and dignity are also stretched out over the liberty and dignity of one who the state seeks to detain in an administrative detention.

18.  There is a sharp clash between the two (objective) purposes which are at the foundation of the Detentions Law – national security and individual liberty and dignity.  Detention – every detention – harms liberty.  The liberty ends where the detention begins (see R. Robertson, Freedom, the Individual and the Law 26 (1989)).  The harm of administrative detention to the liberty of the individual and their dignity is particularly harsh.  The individual is detained without a trial, by authority of the order issued by the executive branch (Minister of Defence).  The detention may go on – as the case before us shows – for a long period that is not limited in advance.  Not once, the detainee does not know – for reasons of national security – what the factual basis is for the decision as to his detention.  His ability to defend himself against the administrative detention is limited (see ADA 7/94 Ben Yosef v. State of Israel [14]; ADA 2/96 State of Israel v. Freedman [15]).  With that, there is no escape – in a freedom and security seeking democratic society – from the balancing of liberty and dignity and security.  Human rights must not be turned into an axe for denying public and national security.  A balance is required – a delicate and difficult balance – between the liberty and the dignity of the individual and national security and public safety (see EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [16]).

19.  This balancing presumes – and in the petition before us the matter has not come up at all – that it is possible to enable – in a democratic freedom and security seeking state -- the administrative detention of a person from whom a danger to national security is posed, but this possibility is not to be extended to the detention of a person from whom no danger is posed to national security and who merely constitutes a “bargaining chip”.  The reasoning for this position is twofold: first, the damage of administrative detention to the liberty and dignity of a person who poses a threat to national security is severe.  The damage is severe as it harms the liberty of a person – liberty which is protected in Israel at a constitutional-supra-statutory level – without a trial and without a judgment (see HCJ 2320/98 El-Amla v. IDF Commander in Judea and Samaria Region [13].  However, it is tolerated.  It is a matter of the lesser of two evils.  On the other hand, the damage to liberty and dignity, in the administrative detention of a person who himself does not pose a threat to national security, is extremely severe, to the point where the interpreter is not entitled to presume that the statute intended to achieve such severe harm.  I discussed the severe harm of such administrative detention in the judgment the subject of this petition when noting:

“Administrative detention harms the liberty of the individual.  When the detention is done under circumstances in which the detainee is a ‘bargaining chip’, there is in this a severe harm to human dignity, as the detainee is perceived as a means to achieving a goal and not as a goal in and of itself.  Under such circumstances the detention harms the autonomy of will, and a person as a master of his actions and responsible for the consequences of his actions.  The detention of the appellants is none other than a situation where the key to the imprisonment of persons is found in the hands of others and not in their own hands.  This is a difficult situation” (para. 12 of my judgment).

Indeed, the transition from the administrative detention of a person from whom a danger is posed to national security to the administrative detention of a person from whom no danger is posed to national security is not a “quantitative” transition but a “qualitative” transition.  The state detains, via the executive branch, a person who committed no crime, and from whom no danger is posed, and whose entire “wrongdoing” is in being a “bargaining chip”.  The harm to liberty and dignity is so substantive and deep, that it is not to be tolerated in a liberty and dignity seeking state, even if the rationales of national security lead to undertaking such a step.  My colleague, Justice Cheshin, has already discussed that as to regulation 19, of the Defence (Emergency) Regulations, 1945 the basic concept is that “every person bears the weight of his own offense and each person shall only be put to death for his own crime . . .   there is no punishment without warning and no one but the offender is reprimanded” (HCJ 2006/97 Ganimat v.  Central Command General Uzi Dayan [17] at 654).  A similar approach is to be taken as to administrative detention.  Each person will be detained based on their wrongdoing and each will be held in administrative detention based on their offense.  One is not to detain in administrative detention any other than one that himself poses a risk, with his own actions, to national security.  This was the situation prior to the legislation of the Basic Law: Human Dignity and Liberty.  This is certainly the case after this basic law was passed, and raised human dignity and liberty to a constitutional-supra-statutory level.  It is true, the Detentions Law is not being subjected to constitutional examination relative to the basic law (due to the preservation of laws provision: section 10 of the Basic Law), but the provisions of the Detentions Law must be interpreted against the background of the Basic Law (see ADA 4/94 Ben Horin v. State of Israel [18] at 333-335).  This interpretation leads to the conclusion that it is not to be determined that the (objective) purpose of the Detentions Law is to enable administrative detention of a person who himself does not pose a risk.  Indeed, the harm to basic human rights from administrative detention in which a detainee – who himself poses no risk – serves as a bargaining chip is so severe, that only a provision in the Detentions Law which would explicitly establish the statute’s applicability to one from whom no danger is posed to national security – a provision whose constitutionality would need to be examined of course against the criteria of the Basic Law – could lead the interpreter to the conclusion that the law was intended to enable administrative detention of this type.  Indeed, in a comparative perspective, it appears that there is no state in the Western world, which makes use of administrative detention of one who does not himself pose a risk to national security.

20.  Second, holding people as “hostages” – and this term also includes holding people as “bargaining chips” – is prohibited by international law (see article 1 of the International Treaty against the Taking of Hostages (1979); article 34 of the Fourth Geneva Convention, 1949).  Indeed, I am willing to presume – without ruling on the matter – that there is no such prohibition in customary international law.  I am also willing to presume – without ruling on the matter – that the conventional prohibition on taking hostages does not bind the State of Israel in the domestic law of the State absent its application in state law.  One way or the other, it is presumed that the purpose of the law is, inter alia, to fulfill the provisions of international law and not to contradict it (see CrimA 6182/98 Sheinbein v. Attorney General [19]).  There is a “presumption of accord” between public international law and local law (see HCJ 279/51 Amsterdam v. Minister of the Treasury [20] at 966; CrimA 336/61 Eichmann v. Attorney General [21] at 2041; CA 522/70 Alkotov v. Shahin [22] as well as A. Barak, Interpretation in Law, Vol. 2 (1994) [36] at 576).  Application of this presumption under the circumstances in this case strengthens the trend which arises from turning to the objective purpose of the law.

21.  We have reached the end of our road: “the legislator’s intent” (the subjective purpose) does not take a stand on the question that is bothering us.  Not so the “statutory purpose” (objective purpose).  This leads to the conclusion that the purpose of the law is to apply to situations in which the administrative detention is required due to danger posed by the detainee himself.  In this situation, in which we must search for the overall purpose of the Detentions Law on the basis of both purposes – while giving preference to the subjective purpose if it clashes frontally with the objective purpose – we must reach the conclusion, that the purpose of the Detentions Law was to apply to the detention of a person from whom himself a danger is posed to security, and not beyond this.  This purpose establishes the (legal) meaning that will be given to the Detentions Law.  This (legal) meaning does not extend over the entire (textual) meaning of the statute (see HCJ 4562/92 Zandberg v. Broadcasting Authority [22] at p. 811).  A person from whom himself no danger is posed and who is only a “bargaining chip” is not to be detained.  Having reached this conclusion, I would like to make three comments.

22.  First this conclusion contradicts the conclusion I reached in the judgment the subject of this petition.  Meaning – I changed my mind.  Indeed, since the handing down of the judgment -- and against the background of the further hearing itself – I have not stopped questioning myself as to whether my approach was properly based in the law.  I am not of those who hold that the finality of a decision attests to its correctness.  Any one of us may err.  Our professional integrity requires that we admit our errors if we are convinced that we in fact erred.  (See CA 243/83 Jerusalem Municipality v. Gordon [24] at 136).  “True and stable – True is preferable” (President Smoira in CA 376/46 Rosenbaum v. Rosenbaum [25] at 253).  These words were said as to the power of the Supreme Court to deviate from its precedents.  This question does not arise before us as we find ourselves in the process of the further hearing which establishes a formal framework for revocation of a decision that was decided and is not in accordance with the law.  However, these words are relevant to each and every judge, who struggles with himself and examines his decisions.  In our difficult moments when we question ourselves the North Star which should guide us is the uncovering of the truth which leads to the realization of justice in the framework of the law.  We must not entrench ourselves in our previous views.  We must be prepared to admit our error.  Self-reflection in the case before us is not easy.  Balancing is not a mechanical act.  I understand the hearts of my colleagues who continue to hold that the Detentions Law also applies to a detainee who serves as a “bargaining chip” without any danger being posed by him to national security.  This time I shall not be able to share their view.

23.  Second, I am aware that this decision does not make it easier for the State in its struggles against those that rise up against it.  Detaining a detainee – from whom himself no danger is posed to national security – in administrative detention as a “bargaining chip” may on occasion be an efficient means of advancing the State’s security.  But not every efficient means is lawful.  I can only repeat what I have said in another context:

“We are aware of the fact that this judgment of ours does not make coping with this reality easier.  That is the fate of democracy that not all means are legitimate in its eyes and not all methods which its enemies undertake are open before it.  More than once democracy fights with one hand tied behind its back.  Despite this, democracy has the upper hand, as protection of the rule of law and recognition of individual liberties, constitute an important component in its conception of security.  At the end of the day, they strengthen its spirit and its power and enable it to overcome its difficulties.” (HCJ 5100/94 the Public Committee against Torture v. Government of Israel [26]).

These words are relevant to our matter as well.

24.  Third, I am aware of the suffering of the families of prisoners and missing persons from the IDF.  It is heavy as a stone.  The passage of years and the uncertainty wound the human spirit.  Even more painful than this is the situation of the prisoner who is held in secret and in hiding, ripped from his home and homeland.  Indeed, I am not oblivious to this pain, together with the prime interest of the State of Israel in returning its sons to its borders.  It did not lift from my heart when I handed down my decision in ADA 10/94 [1].  It has not lessened from then to today.  The human and societal tragedy of prisoners and missing persons is carried daily on our shoulders.  However, as important as the purpose is of the release of prisoners and missing persons, it is not sufficient – in the framework of the petition before us – to legitimize all means.  It is not possible – in the legal situation before us – to right a wrong with a wrong.  I am confident and certain that the State of Israel will not be still and will not rest until it finds a way to solve this painful problem.  As a state and a society, our comfort is in the fact that the way to the solution will suit our foundational values.

25.  Before concluding, I would like to comment that were I of the opinion that the Minister of Defence had the authority to issue a detention order against a detainee from whom no danger is posed to national security, I would rule in the case before us, that the use of the discretion of the Minister of Defence in this case, was not lawful.  Administrative Detention cannot go on endlessly.  The more the period of detention that has passed lengthens, so too are weightier considerations needed to justify an additional extension of the detention.  With the passage of time the means of administrative detention is no longer proportional.  The placement of the “breaking point” changes with the circumstances.  It is all dependent on the importance of the purpose that the administrative detention seeks to achieve; it is all conditioned on the degree of probability of achieving the purpose by the use of detention and the degree of suitability of the administrative detention to achieving the purpose; it is all tied to the existence of alternative means to achieving the purpose whose harm to individual liberty is lesser; it is all derived from the severity of the harm to individual liberty against the background of the appropriate purpose which is sought to be achieved.  Indeed, it is a matter of a totality of considerations which change from matter to matter and time to time.

26.  The totality of factors points to the fact that the continued detention of the petitioners is not proportional.  Today there is not a near certainty or even a reasonable possibility that the continued detention of the petitioners will bring about the release of the prisoners or missing persons.  Due to the long time that has passed since the detention and the absence of any real data in this matter, the probability that the continued detention will indeed bring about the release of prisoners and missing persons is very low.  A possible opening in the negotiation which the respondents described in the supplementary notice – does not change this assessment.  In my view, there has not been presented before us – not even in the discussions behind closed doors – a factual foundation according to which it could be said today that there is a near certainty (or reasonable possibility) that the continuation of the administrative detention will bring about advancement of the release of the Prisoners or missing persons.  All that has been brought before us is theories and wishes, whose degree of probability is increasingly diminishing with the years and today hangs on by a thread.

In conclusion, since the respondent does not claim that there is a lawful means of detaining the petitioners except by way of administrative detention according to the Detentions Law, and since we reached the conclusion that according to the Detentions Law there is no authority to detain a person from whom no danger is posed to national security, it is concluded that the respondent does not have the authority to hold the petitioners in detention.

The result is that we grant the petition, and declare that the respondent is not entitled to detain the petitioners by authority of the Detentions Law.  Absent any other grounds for their detention, the petitioners will be released from detention and arrangements will be made immediately for their release from detention and return to Lebanon.

 

 

Justice T. Or

 

I agree.

 

Justice E. Mazza

 

I agree.

 

Justice I. Zamir

 

I agree.

 

Justice M. Cheshin

In the north of Israel battles are taking place – land battles and battles from the air.  These are not couch-battles.  These are not battles of words.  These are real battles, battles in which fighters are killed and wounded, young men-fighters and adult-fighters.  One who is killed in these battles is as one who was killed in war; in a war in its simple meaning and in a war as defined by international law.  One who dies - dies, whether fighting in a war as defined by international law and whether fighting in these battles that are not a war as defined by international law.  This is so for one who is killed and this is so for one who is wounded.  In war – or in battles that are not war – it also happens that members of one camp fall in the hands of the other camp.  And when the war or the battles are over (without a definitive victory) – or possibly by agreement in the course of the war or the battles – the battling sides exchange those that fell in their hands from the other camp.  And sons return to their homeland.

The fighter Ron Arad fell in enemy territory, was caught by the enemy and was held – is held? –by our enemies as of today, the Hezbollah.  The petitioners, member-fighters of the Hezbollah, are held in our hands.  Against this background the State tells us: when Ron Arad is returned to us -- or when the Hezbollah informs us of his fate, if he is not in their hands – the petitioners will be returned to their homes, to the hands of the Hezbollah.

In principle, I share this position.  This is the beginning - This is also the end.  And if I must discuss that which is between the beginning and the end – and explain and explicate that which is obvious to me, meaning: from where have we acquired the right to hold on to enemy fighters until the redemption of our fighters – I will do my best to explain and explicate.

2.  We are dealing with the provision of article 2 of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter we shall refer to this law as – “the statute”), which establishes and instructs us as follows:

 

Detention Order

2 (a)

Where the Minister of Defence has a reasonable basis to assume that reasons of national security or public safety require that a certain person be held in detention, he may, with an order bearing his signature, order the detention of such a person for a period that will be specified in the order and which shall not exceed six months.

 

  (b)

Where the Minister of Defence has a reasonable basis to assume, on the eve of the expiration of an order based on subsection (a) (hereinafter – the original detention order), that reasons of national security or public safety continue to necessitate holding the detainee in detention, he may, with an order bearing his signature, order, from time to time, the extension of the validity of the original detention order for a period which shall not exceed six months, and the law as to the extension order is as the law of the original detention order in all aspects.

The main points are found in the opening of article 2(a) [like in the opening of article 2(b)], according to which the Minister of Defence is authorized to order the detention of a person when he has a reasonable basis to assume that reasons of national security or public safety necessitate detaining that person.  The authority of the Minister of Defence will arise, therefore, when the following two conditions are cumulatively met: the one is that there is a situation which falls within the scope of the concept “national security or public safety” and the second is that the Minister of Defence has a reasonable basis to presume that detaining that person is necessitated by that situation.  Let us review these conditions, in order, and one at a time.

3.  As to the subject of “national security or public safety”: there is not the slightest doubt in my mind – not even a doubt as slight as the shadow of a bee in flight – that the purpose of the return home of prisoners and missing persons from among our fighters is at the deepest core of the concept of “national security”.  It is for good reason that the imperative of redemption of prisoners was established – and it is a command of the highest degree –for indeed all of Israel (and in our matter: not only Israel) are responsible for one another.  The strength of an army is in the comradery of fighters, and the comradery of fighters is made up of a single unit, in times of battle and when a fighter falls in enemy captivity.  And in the words of the three musketeers, as Alexandre Dumas wrote: “Tous pour un, un pour tous”.  The fighter will fight knowing that he is not alone, and that in times of need his friends will go to his rescue.  We are commanded and insistent not to leave the wounded in the field, and just as with the wounded we will not settle down until our prisoners have been released from their imprisonment.  Fighters are like rock-climbers tied one-to-the-other by ropes and by fate and a climber who lost his grip and his body is thrown into the abyss, will be saved by his friends.  Such is the climber, such is the fighter.  And this is national security.

4.  And as for the second condition for detention: does the Minister of Defence – in principle -- have a reasonable basis to assume that the holding of the petitioners in detention is necessitated by the need to release Ron Arad from his imprisonment? As for myself there is not a slight doubt in my mind that indeed it is so.  This conclusion is, in my opinion, self-evident, when we know that the petitioners have fallen in our hands and they are member-fighters of the Hezbollah, meaning, ones who counted themselves in fact with the enemy army.  Knowing this, we say thus: Ron Arad was held – is held? – in the hands of the Hezbollah; the petitioners are held in our hands; if the enemy will release Ron Arad – or at the minimum, inform us of his fate –those held in our hands will go free.  Any other conclusion is simply not acceptable to me.  Shall we accept that the enemy will hold our fighters but we shall not be permitted to hold their people until they release our fighters?  Shall we agree to this interpretation of the law?  For myself I say: I have difficulty with this, great difficulty; I do not agree and will not agree.  Indeed, my view is that where the enemy holds our fighter in their hands, reasons of national security require us to hold the enemy fighter in our hands until the exchange.  Ron Arad fell in enemy hands in an act of war, and the petitioners – member fighters of the enemy – also fell in our hands in an act of war.  An act of war will be held up against an act of war.  I do not know otherwise.  Even if we said that the law is open to two interpretations – and what law is not open to two interpretations? – our interpretation, in my opinion, is a just, correct and proper interpretation.

5.  There is no substance to the claim that the petitioners do not pose a danger if they are released.  The petitioners as fighters of the Hezbollah tied their fate with Israel’s war with the Hezbollah.  In this way, the matter of the petitioners differs from the subject of the demolition of the homes of terrorists, a subject that in its time came up frequently on the agenda of this court.  Indeed, it is a supreme value for us that every person bears the weight of his own offense and each person shall only be put to death for his own crime. For this reason I have also held – in a minority-minority opinion – that a military commander does not have the authority to demolish a house in which the family members of a terrorist-murderer live, even if said terrorist lives in the same house.  (See HCJ 2006/97 Mison Mahmet Avu Fara Ganimat v. Central Command General Uzi Dayan [17] at 654 and the references there).  But specifically for this reason of “each person bears the weight of his own offense” the matter of the petitioners differs from the matter of the families of the terrorists; the petitioners as fighters for the enemy, and not as families of the terrorists – knowingly and intentionally tied their destiny to the destiny of the fighting.

6.  The state does not claim that there is another legal source – beyond the statute – for holding the petitioners in detention, neither in domestic law nor in international law (as for the view that holds that the statute does not give power nor grant authority to detain the petitioners, but that there is authority – albeit qualified authority –  to detain them in international law, see: Orna Ben-Naftali and Sean S. Gleichgevitch, ‘Missing in Legal Action: Lebanese Hostages in Israel’ [49] esp. 244-248, 250-251 (2000)).

The question before us, which will be before us and will not let up: If the State is obligated to release the petitioners from detention how shall we fight our enemies?  They will hold our people and we shall not be permitted to hold their people?  Where the statute, according to its language – and in my view: also its spirit –also applies to people like the petitioners?  The (historical) determination that the statute was not intended at its core to catch in its net scenarios such as the one in front of us, does not add or detract.  Indeed, a law – any law – is a living creature within its environment; and just as a living creature adapts itself to its environment – otherwise it will not live – so too the law will do its best – and we will help it – to be integrated and interlaced in its environment and to be interpreted against the background of the living.  Therefore, the question that is asked is three-fold: one, whether the language of the statute relates to our matter? Second, whether the purpose of the statute is our purpose? Third, whether the interpretation of the statute as permitting the holding of the petitioners – as a matter of principle -- does not cause deep wounds to human rights, does not undermine the most basic of the principles on which the social and legal community is based in our community?  My answer to the first two questions is an adamant yes: the language of the statute relates to our matter and the purpose of the statute is our purpose.  My answer to third question is an adamant no: our detention of prisoners, as a matter of principle, does not wound human rights.

7.  The petitioners joined the ranks of the enemy in actuality, and describing them – during the time in which we are detaining them – as “hostages” or “bargaining chips” – terms which reek of a foul smell –can corrupt the language and the truth.   I resist this description with all my strength.  First of all, what a “bargaining chip” is I do not know, nor have I heard of a game of “bargaining chips”.  A person is a person; a chip is a chip; and a person is not a chip.  Never, ever will a person be as a chip.  The petitioners too are persons and not chips.  And I have had difficulty understanding how the petitioners are chips.  As for “bargaining”, I also have difficulty with this term, as, we are not dealing with bargaining.  If only Ron Arad will be returned to his home – or we will be informed of his fate –the petitioners will be returned to their homes.  The petitioners are also not “hostages”, not by the definitions accepted in international law, or by any other definition.  We all know what “hostages” are.  “Hostages” taken by Germans in the Second World War, and “hostages” in bank robberies.  We have never heard that those who number among warring parties and fall in the hands of the enemy are “hostages”, even if they are held until the conclusion of the hostilities or until a release agreement.  Indeed, just as the holding of prisoners of war is regarded as holding for a legitimate and proper purpose – and thus prisoners of war are not described as “hostages” or “bargaining chips”—so too by way of parallel are the fighters of the Hezbollah, whom we hold for the legitimate and proper purpose of national security.  The petitioners have none of the indicators of a “hostage” or a “bargaining chip” and thus we know that they are neither a “hostage” nor a “bargaining chip”.

We should remember and remind that the petitioners are not innocent villagers forcibly taken to a land not theirs.  Indeed, the petitioners were none other than simple fighters in the ranks of the Hezbollah.  However, they counted themselves with the enemy fighters and therefore they are neither “hostages” nor “bargaining chips”.

8.  Even if the Minister of Defence has the authority to detain the petitioners – and that is my view – this authority must meet the requirement of proportionality.  Does the detention of the petitioners meet the requirement of proportionality?  Since the petitioners were detained – years ago – no contact has been made with the Hezbollah in the matter of Ron Arad.  For this reason, I was of the opinion – when the sessions before us began in the further hearing – that the time frame of the detention of the petitioners, under the circumstances, exceeded the limit of proportionality, and thus passed the limits of permitted according to the law.  If we had determined the matter at that time, then at that time I would have voted for the release of the petitioners from detention, if only due to the deviation of the detention from the proper proportionality.

However, in the last two sessions held, it turns out that lately – after all those years, and after the decision before us in the further hearing – there is a shift in the position of the Hezbollah.  Contact has been made – albeit indirect contact – between Israel and the Hezbollah and in this matter the leader of the Hezbollah even said things in public.  Following that contact, the head of the Mossad for Intelligence and Special Tasks declared before us – in answer to a question and after describing certain developments that occurred --   that in his opinion and in the opinion of his counterpart in a friendly country that is helping Israel as a mediator, the solution to the release of Ron Arad is found in the hands of the Hezbollah.  Indeed, it is a matter of an assessment, an assessment and not knowledge, but as an assessment by a senior professional dealing with the matter, it is proper that we accept it if only for a brief period of months.  Indeed, my opinion is that the State is entitled that we grant its request; and that we enable the continued detention of the petitioners for now, if not for an extended period.

Having said what I have said, it is clear that I am disagreeing with the words of President Barak in paragraph 26 of his opinion, as to the conclusion necessitated by the quality of the likelihood that the continued detention of the petitioners will bring about a change in the stance of the Hezbollah.  Indeed, such is the case: there is no proximity to certainty that there will be progress with our contacts with the Hezbollah; however the assessment of the head of the Mossad -- if only an assessment – appears to me to be worthy of proper consideration on our part.

9.  Until today we have held, over and over, consistently and without reservations, that the petitioners, them and those like them, are held in administrative detention lawfully.  See paragraph 9 of the opinion of President Barak in the decision that is before us for review, and the references there.  So too it has been held in several decisions by President Shamgar and Justices G. Bach and Z. Tal.  Joining those three – in the judgment under review – were President A. Barak and Justice Y. Kedmi.  We have had, then, at least five of our colleagues that have – explicitly -- been of the opinion to date that the law holds the power to authorize the Minister of Defence to hold the petitioners in administrative detention.  And here now, come the nine of us, and by a majority of 6 to 3 we decide as we have decided.  Will this be our way, that when we wish to we broaden and when we wish to we abbreviate, and all within a short period of years?  We would have agreed to the statement “Truth and stable – Truth is preferable” if we only knew what the truth was.  And as we know that none of us has the stone of wisdom that will show him the truth – the one and only truth – we will further know that each and every one of us will live with their own truth.  I have spoken my truth and have not heard an answer to my words, not from my colleagues and not from those writing the articles that criticized the original decision of my colleague the President.  And let us know: the meaning of this judgment of my colleagues is that the State will no longer be able to lay its hands on fighters of the Hezbollah as it did in the matter of the petitioners.  I do not accept this conclusion at all.

10.  Last word: the differences of opinion that have emerged between us are not differences of opinion between those who have taken upon themselves the task to protect human rights and the dignity of the individual and those who surrender  the right of man and the dignity of the individual for the good of the public, seemingly.  We have seen the petitioners and we have gone beyond this and read words that they have written to us by their own hand.  Anyone who read those words, something would move in their hearts.  We have seen the petitioners – Ron Arad we have not seen.  We have not read words he has written us, as he has not written to us.  But this we knew and know: Human rights and individual dignity Ron Arad has also earned.  Not just the petitioners.  And we owe a heavy debt – all of us – to Ron Arad.  A very heavy debt.

11.  My view is, therefore, that it is proper for us to enable the detention of the petitioners, while not for a long period.  If my view were heard we would reassemble in approximately two months to hear from the State whether there is anything new.

And so it was after this.

12.  I read the opinions of my colleagues, Vice-President S. Levin and Justice Dorner, and I was sorry.  I was sorry not because they disagree with my view – or that I disagree with their view – as I knew this before I wrote what I wrote.  I was sorry because I have not succeeded, it appears, in explaining those things I wished to explain.  I will repeat those things I said and add to them.

13.  My colleague the Vice-President establishes that the respondent does not hold the authority by law to detain the petitioners and the reason is:

“A different answer would authorize the respondent to detain the family members, relatives and friends of a person, where there is a reasonable basis to assume that he may endanger national security, only in order to pressure him to talk or to give himself or others in, even if there is no fault that can be attributed to his family, his relatives, or his friends...  Indeed, the simple construction of the expression “national security” or “public safety” is that it does not refer other than to the detention of one from whom the danger to national security or public safety stems .”

In these words the Vice-President repeats words that Justice Dorner stated in her opinion in the judgment under consideration, while disagreeing with the original position of President Barak.  And these were her words (para. 2 of her judgment):

“The position of my colleague President Barak leads to interpreting the law as enabling detention, for an unlimited time period, of any person, as long as the detention has a benefit, if only indirectly, for national security.  Such sweeping and unlimited authority is not even recognized by the laws of war in the realm of international law.  I cannot recognize it in the realm of Israeli law.”

These words are true in and of themselves; it is true that the Minister of Defence does not have authority according to the law to detain “the family members, relatives and friends of John Doe” (as in the words of the Vice-President) or to detain “any person” (in the words of Justice Dorner).  But the petitioners are neither these nor those, as I have tried to explain in my opinion.  Their status is the status of quasi-prisoners, and to this I have not heard a response from my colleagues.

14.  In her opinion my colleague describes the petitioners – again and again, more and more – as bargaining chips and hostages; she does not even put these terms in quotation marks.  I deny these things with all my might.  I have discussed this in my opinion, and cannot say more than I already have.   I have read the words of my colleague; and I have not heard an answer to my words.

15.  My colleague goes on about international conventions which prohibit holding hostages.  I agree to all of her words, but the petitioners are not hostages and thus those conventions have nothing to do with our matter.

16.  Last words: in her judgment the subject of the further hearing my colleague closes the pathway for detaining the petitioners by authority of the statute.  In her present opinion my colleague also closes the pathways of international law as a source of authority for detention.  Meaning: they will hold our people and we will not be allowed to hold their people, if only to exchange people for people.  I am sorry that my opinion is a minority opinion.

Vice President S. Levin

1.  The only question to be decided before us is, whether the Minister of Defence is authorized by power of section 2 of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter: “the statute”), to order the administrative detention of a person for the single reason that the detention has the potential to advance the release of prisoners or missing persons from among the security forces.

I agree with the President, that the authority is not granted to the respondent.  A different answer would authorize the respondent to detain the family members, relatives and friends of a person, where there is a reasonable basis to assume that he may endanger national security, only in order to pressure him to talk or to give himself or others in, even if there is nothing that can be attributed to his family, his relatives, or his friends.  Moreover, section 2(a) of the statute also covers a situation which relates to “public safety”.  Is it possible to interpret the statute, such that it affords the authority the power to detain the family members of a criminal offender, who endangers “public safety” without attributing anything to them?  Indeed, the simple construction of the expression “national security” or “public safety” is that it does not refer other than to the detention of one from whom the danger to national security or public safety stems himself.

2.  Mr. Nitzan, on behalf of the State, has not brought before us any other legal source in domestic or international law which justifies the continued holding of the appellants in detention, apart from the statute, and we are not permitted to search for such a source on our own initiative.  I am aware of the reality pointed to by my hon. colleague justice Cheshin, that we are all, of course, aware of, according to which the fighter Ron Arad has fallen in the hands of an enemy, who is of the view that the laws of war do not apply to him and who does not see himself as subject to the rules of international law.  It would be naïve and even dangerous to keep from the State an appropriate means of freeing its fighters.  However: the statute has not placed such a tool at its disposal; in order to place it as its disposal, it requires, in my view, a different source or grounds for its authority in primary legislation on a matter that prima facie has significance of a primary nature.  Compare  HCJ 3267/97 [27] and HCJ 5400/94 [26].  The State has not legislated a suitable statute, and as said has not pointed us to another source on which the power to detain the appellants is based.

For this reason alone, I have agreed to the grant of the appeal.

Justice Y. Kedmi

Introduction

1.  I have gone back and examined my position and have not seen fit to change my approach according to which the holding of the petitioners in detention is within the authority established in section 2 of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter: “the statute”).  On this matter, I am going along the path that was forged in its day by President Shamgar in ADA 1/91 Plonim v. Minister of Defence [28] according to which the redemption of captives and return of missing persons are reasons of national security as per their meaning in section 2 of the said law; and I adopt the words that were said in this context later by Justice Tal in ADA 1/94 Plonim v. Minister of Defence [29], as detailed in the judgment of President Barak in ADA 10/94[1].  President Shamgar and Justice Tal were joined by the Justices who sat with them on those cases; and Justice Bach decided in the same vein – in ADA 1/93 Plonim v. Minister of Defence [30].

And this is how this was expressed in the judgments of President Shamgar and Justice Tal:

President Shamgar:

“the routine grounds for detention by authority of said law is indeed a matter of the security risk that arises from the future anticipated activity of a person whose detention is being weighed at that time.  However, reasons of national security do not embrace only the prevention of hostile intelligence or terrorist activities.”

And later on:

“. . .  and taking effective steps to release hostages, who fell in enemy hands, are, in my view, reasons of national security.”

While as per Justice Tal:

“I am also of the view that the rationale for release of our captives is a quintessential rationale of national security.  It is well known that army morale is of utmost importance for its effectiveness.  The confidence of a soldier that the State will not spare any effort to free him if he falls captive, is an important component of his morale, his dedication and his willingness to take risks”

And later on:

“Therefore, I have no doubt that considerations of redemption of prisoners are considerations of national security.”

National Security and the Value of Redemption of Prisoners

2.  “Redemption of prisoners” is one of the basic values of the Jewish people; and it appears that none more than it demonstrates the basic responsibility of everyone in this nation for the liberty of their brothers, in the sense that all of Israel is responsible for one another.  That is a national duty of the first degree that each of us – and all of us together – is bound by.  It was such in the period in which we were exiled from our land; and there is no measure to its significance in an era of gathering of exiles and return to our homeland.  By its nature, this duty constitutes a basic component of the “glue” which unites and protects us as a nation; and there is no other value as necessary and vital to our national security.  The knowledge that the nation and the people are behind each of our fighters, that none of them will be abandoned in the field and that no effort will be spared in order to return home sons who have fallen in the prison of the enemy – whatever it may take – to their homeland, is at the basis of the might of our security forces; and grants those who assure our existence, the valor and courage necessary to fulfill their duties.

Under these circumstances, there is no need to go on in order to clarify: first – the value of redemption of prisoners – which as said, is one of the basic values of the Jewish people – is counted among the components of the nation’s security; and second – blocking the road to meeting the requirements of this value, is equal to harm to national security.  Our enemies are aware of the strength and contribution of said value to security.  Until the case brought before us, our commitment to the value of redemption of prisoners has served as a means for our enemy to extort a “price”; while in this case a real effort was made by them to undermine the faith in this obligation and in this way to cause damage, direct damage, to a vital component of our security.

The Normative Framework: Detention Authority

3.  The petitioners are held in detention by power of the provisions of section 2(a) of the statute, of which this is the language inasmuch as it relates to our matter:

“2 (a) Where the Minister of Defence has a reasonable basis to assume that reasons of national security . . .   necessitate that a certain person be held in detention, he may. . . order the detention of that person. . .”[emphasis mine, Y.K.]

The basis for those who negate the authority to detain the petitioner by authority of said section 2(a), is the approach which says: that the detention authority established in this section relates only to the detention of a person who constitutes – himself – a danger to national security; when his detention serves as a means to prevent the coming of the – as said, personal – danger which would, by nature, be entailed in his release.  I do not accept this constricting approach; and to my approach, it does not arise from the language of the statute or the purpose of its legislation.  Indeed, in most of the cases in which use has been made to date of said detention authority, it was a matter of one who himself constituted a – personal – danger to national security.  Indeed, this fact, on its own, is not sufficient basis for said approach.  Determining the scope of the authority is properly done based on the text of the law and its purpose; when of course one is not to ignore the duty not to infringe on man’s basic right to liberty, by means of the detention, except to the extent that there is no other recourse.

The text of the statute refers to the detention of a “certain person” for “reasons” of national security [which “necessitate” holding a person in detention], without any characterizing addition to “reasons” or the character of the “detainee”; and it is not possible, therefore, to base on the language of the statute the stance that it is a matter only of “reasons” which are based in “personal dangerousness” of the detainee.  To my approach, this is sufficient to undo the foundation of the construction which limits the detention authority only to those who constitute a danger themselves; had it been the will of the legislator, it can be presumed that he would have given it explicit expression in the language of said section 2(a), or in another clarifying provision.

The absence of “restricting” words around the phrase “reasons” and particularly around the phrase “a specific person” -- such as: “reasons of risks to national security” and “a certain person who endangers national security” teaches that the said constricting meaning was not being considered by the legislator.  The general language that was used in said section 2(a) tells us that the legislator was of the opinion that it is to be left to the court to determine the extent of the detention authority, according to the range of “reasons” that the changing security reality presents; and this, in order for it to be able to apply it in every place that reasons of national security necessitate detention of the same person whose imprisonment can fulfill those “reasons”.  The expression “for reasons of national security”, when it stands alone without a characterizing addition, reflects an intention to protect national security from any “harm”, in the broader meaning of the term; and restricting the detention authority based on this expression only to those who “personally” endanger national security, deviates from “construction” of what is written and spills over to add limiting words that are not found in it.

This situation is also necessitated, in my view, by the purpose of the law.   As a rule, the purpose is learned, inter alia, from the words that were said in this context in the framework of the legislative process, whether in the explanatory notes which accompanied the draft law and whether in the Divrei Knesset which reflect the discussion which preceded its passing.  I am not oblivious to the fact, that in the Divrei Knesset we find reference to the dimension of the personal dangerousness; and that they do not have an explicit reference as to its application in other circumstances as well.  However, in the framework of the reference, it was not said that the dimension of personal dangerousness will be the only – and necessary -- criterion to apply the provisions of the law; and under the circumstances, it appears that the reference to the said dimension is anchored in the fact that “personal dangerousness” is a clear concretizing example for the use of the detention authority according to the statute.  That is all, and no more.

Review of the Divrei Knesset in their entirety – and in their light, of the text of the statute – shows that the purpose of the legislation was: creating an emergency tool for protection of national security (or “public safety”, which is not the issue here), in circumstances in which less extreme measures are not useful; and this through the detention of a person in administrative detention, as a last resort for safeguarding security from harm that the detention has the ability to cope with.  Administrative detention is by its nature a “preventative” detention which is characterized by the fact that it is intended to prevent harm and not punish for it.  But, the fact that the detention is “preventative” by its nature, does not necessitate the conclusion that the single criteria for applying it is rooted in the “personal” dangerousness of the detainee to national security; and its “preventative” character does not rule out making use of it as a means of applying pressure on those who wish to harm security, by blocking the road to redemption of prisoners, in order to change their decision.

Punitive imprisonment – as opposed to preventative – by its nature refers to the denial of the liberty of one who bears responsibility for committing an act that carries a punishment.  Therefore, only one who bears personal responsibility for committing that act will be imprisoned; since the rule is that each person will be punished for their crime.  But, when it is a matter of preventative detention it is not the “crime of” the detainee that is at the basis of his detention, but rather the ability of the detention to prevent harm to national security.  As such, there is nothing to prevent the “crime of” another being at the basis of the detention; as long as – as will be explained later –the detainee links himself by his behavior or actions to the crime of the “other”.

According to my approach, therefore, one is not to rule out circumstances, in which reasons of national security necessitate detaining one whose imprisonment is necessary as an emergency means to advance implementation of the value of “redemption of prisoners”.  This, subject to the fact that – as is required by the Basic Law: Human Dignity and Freedom –the right of every person to liberty rules out detaining him without the existence of a “link” between his behavior and actions and the purpose of the detention.

Under these circumstances, although it is a matter of preventative detention – as opposed to punitive – I agree that not every person can be detained by authority of the law, but only one who “links” himself with his behavior to the grounds for his detention.  As opposed to those who rule out the detention authority as to one who does not constitute a “personal danger” to security, it is sufficient, according to my approach, for there to exist a “link” – willingly and by free choice – between the detainee and the grounds and purpose of the detention; and there is no need for the detainee – himself -- to pose a “security risk”.  Such a link is self-evident where it is a matter of one who poses a “security risk” due to his own activity; while when it is not a matter of detention against the background of personal activity, such a “link” may be dictated by the existence of an organizational link between the detainee and the activities of others.  This -- as derived from what has been written above – when that activity harms security, and the imprisonment of the detainee, given his link to others, is the last means left to safeguard against it.

In the case before us – as will be detailed below – the petitioners “linked” themselves to the grounds for their detention, in that they joined with the terrorist organizations in whose hands the navigator Ron Arad has fallen; and as such, have a link sufficient to hold them in administrative detention for the purposes of creating pressure on the leadership of their organizations to reveal what has become of him.

In conclusion, national security has many faces, and the law establishes administrative detention as a uniform emergency means to protect it, be the nature of the harm that it is dealing with what it may be.  In such a situation when the law uses general wording which leaves room for broad construction of its application, we will miss the target of the purpose of the legislation – protection of national security – if we specifically choose a limiting construction.

It would not be superfluous to mention in this context that this is not a lone case where the law allows – in a time of emergency – taking emergency measures against persons to whom no personal action against national security is attributed, where the -- personal -- “crime “is rooted only in the existence of a “link” between them and those taking such action.  Thus, for example, the law “reconciles” itself with the taking of deterrent measures – demolition of homes – against family members of terrorists, lest they give them shelter – in their homes – and this despite the fact that they themselves are not partners to the acts of the terrorists and their “link” to the harm to security is rooted only in their willingness to provide the latter with shelter as said.  It appears, that without the existence of said “link”, it would not be possible to apply the demolition authority to family members of terrorists according to the provisions of regulation 119 of the Defence (Emergency) Regulations 1945.  As to this matter see the judgment of the President in HCJ 2006/97[17].  There it was said, inter alia:

“We are aware of the fact that demolishing the structure damages the shelter of the first petitioner. . .  this is not the purpose of the demolition order.  It is not punitive.  Its purpose is to deter.  However, the result is difficult for family members.  The respondent thinks that this is essential in order to prevent further injury to innocent people.  He held that pressure by families may deter the terrorists.  There is no total assurance that indeed this means is efficient, but in the framework of the few means that remain for the State in order to defend itself against “living bombs” this means is not to be derided.” (Emphases mine – Y. K.).

Finally, I am not oblivious to the fact, of course, that there are rules for war – and one exists between us and the organizations which hold our navigator –and the law of nations determines the permitted and the prohibited and arranges relations between warring parties; and I am aware of the fact that as members of the community of cultured nations we are obligated by said rules, even where the opponent is not a nation but a terrorist organization that ignores those rules.  However, in my view, in the context discussed here, our commitment to the rules of war does not deny the authority that the law grants as to detaining the petitioners where other means have exhausted themselves; and this, taking into consideration its purpose – preventing harm to national security – against the background of our basic commitment to the core value of redemption of prisoners.

From the General to the Specific

4.  The petitioners number amongst the members of hostile terrorist organizations, which declared an all out war against Israel and do not recoil at any means to advance their issue.  The navigator Ron Arad, the uncovering of whose fate is the purpose for which the petitioners are detained, fell in the hands of said organizations in the course of an operational activity.  About a year after Ron Arad fell in the hands of those organizations all traces of him disappeared and a dark curtain was brought down on his fate, no information was given about him to his family or his nation and all efforts made in this connection did not bear fruit.

Distancing the petitioners from their families and holding them in detention was intended to create pressure on the leadership of said organizations – of which the petitioners are members – to change their decision and clarify where Ron Arad is held, what his fate has been since he fell in their hands.  At the foundation of the detention of the petitioners are the following two things: first – the presumption that the desire to preserve their image as ones who are concerned for the welfare of their friends will motivate the leadership of the organizations to take action for the release of their friends; and second – and this appears to be primary – the presumption that the family members of the petitioners – as all family members – will apply heavy and weighty pressure to the leadership of their organizations, to remove the cover of secrecy that has been draped over the fate of Ron Arad and thereby bring about the release of their sons.  If they cannot do this on their own, they will recruit the voice of the public in their country and outside of it to help them.  From the private perspective the families of the detainees have gained – in fact –a “joint” interest in exposing what has happened to Ron Arad; under the circumstances, it was thought, that the families of the detainees would “cooperate” – for their own reasons – and contribute at least to opening a crack in the wall of silence behind which said organizations have entrenched themselves.

Under these circumstances, using the term “hostage” – which has been much used in the context being discussed here – is not suited to the holding of the petitioners in detention.  At the core of the classic meaning of the term “hostage” lies -- the real and tangible – “threat” of harm to the bodily welfare and even the lives of those held as such, in order to prevent their “friends” from undertaking this action or the other in the framework of their ongoing activity.  In such circumstances, the holding in detention constitutes a “fighting means” in the struggle between two opposing sides; when its illegitimacy is rooted, primarily in the inhumane threat it entails.  While here: the petitioners are not subject to any threat; and their detention is not equated with the use of a “weapon” which requires the opponent to refrain from any activity or to change his ongoing activity.

The use of the term “bargaining chip” without a further clarification that the “bargaining” is none other than creating pressure to provide information, is significantly off the mark of the precise description of the manner of the detention of the petitioners.  In its pure meaning “bargaining chip” constitutes an “asset” that one party holds in the course of “bargaining and sale” with the goal of forcing the opponent to moderate his demands.  Absent negotiation with those organizations, it is not to be said that we are “trading” in the petitioners.  Meaning, according to my view, the petitioners are being held for one single purpose, and that is: moving the leaderships of the organizations with a connection to the matter – including states involved in the case – to open a portal in the wall of silence; and to hand over to the family, to the people of Israel and the entire world information as to the fate of our navigator.  This is not a matter of “haggling” as to the conditions of the return of Ron Arad, but of “pressure” to expose details that have been hidden until now with a glaring degree of inhumanity.

Indeed, even when detention is directed only at creating pressure to expose details – when no risk to life or bodily wellness hovers over the petitioners – it contain, in itself, a severe injury to the liberty of the petitioners; and such injury, indeed, is not consistent with the humanistic principles of cultured nations and with the basic rules on which our state is founded.  However, in my view, where a terrorist organization takes steps of heartlessness, cruelty and inhumanity, which are expressed in placing a complete black-out on the fate of a fighter of ours that fell in their hands in the course of an operational activity, a “balance” is necessitated on our part between, the basic humanistic principles in the struggle with enemies who are after our lives, and the interest of redemption of prisoners which is of utmost importance to us.  Such a balance justifies and legitimizes holding in detention by law the fighters of a terrorist organization connected to the matter; when the purpose is applying pressure on the organization – via the families of detainees – to expose what has become of the fate of our fighter.  This is the least – and in fact the entirety – that we can do, without causing an injury which exceeds the proper proportionality in our commitment to the humanistic principles of freedom and liberty.  If we do not do this, we find that we are acting amiss toward our fighters and the security of our state; and at the same time, we encourage terrorist organizations to violate and shatter every basic human rule, even when this does not have the potential to contribute anything or half of anything to advancing its purposes.

One who joins a terrorist organization cannot claim to have clean hands and not to bear personal responsibility for the behavior of his leaders, in all that concerns the black-out that has been placed regarding what has happened to our navigator; and the claim cannot be heard from him, that he is to be related to as any innocent peace-seeking citizen who has been uprooted from his family and is held behind lock and key through no fault of his own.

In the clash between the injury to the basic right of every person to liberty and the injury that terrorist organizations cause to the basic human value of providing information as to a detainee in their custody the latter has the upper hand.  We have not demanded of the terrorist organizations to refrain from activity by “threat” of injury to “hostages” from among their friends; although they are ostensibly being held as “bargaining chips” we have not presented the petitioners as “assets” to be traded with another “asset”.  All that we ask is this: basic information as to what has happened to a fighter from among our fighters who has fallen in their hands.

Under these circumstances, the severe criticism directed against us by the petitioners and their families, needs to be directed at the leaderships of the terrorist organization which the petitioners joined and whose words and goals they adopted; when before their eyes must be the fact, that all that is being sought of their leaders, is limited, at the first phase at least, to providing information as to the fate of a fighter that has fallen in their hands.

As these words are being written, I am not oblivious to the fact that the definitions of the terms “hostages” and “bargaining chips” in the conventional international law arena have been broadened such that it is possible to include within them the holding of the petitioners in administrative detention for the narrow purpose stated above.  This does not change my position which is rooted in construction of our domestic law; as for my view, in the special circumstances of the case, we are not obligated to apply the provisions of conventional international law, in the face of the shameful and inhumane behavior of the terrorist organizations who hold the key to solving the mystery of the “disappearance” of Ron Arad.  These organizations and their friends trample with an outstretched foot – by their behavior in this context –the rules of basic human behavior; and this is sufficient to prevent their friends – the petitioners – from raising their voices and crying out against the legality of their detention.

Conclusion

5.  I accept that even for the above limited purpose there is a limit and a proportion to detention; and at a certain point in time, when it appears that holding the petitioners in detention is not effective, the foundation for its justification is undermined.  When more than ten years of detention have passed, without any sign pointing to a change in the position of the organization to which the petitioners belong, in all that relates to removing the black-out from what has happened to our navigator, a heavy question mark is placed on the effectiveness – and therefore on the justification – of the detention.  In these circumstances, an additional extension of the detention is conditioned upon bringing proof which points to the existence of a genuine, real, and tangible chance that continued detention is necessary for changing the stubborn position of the terrorist organizations in this episode.  Absent such evidence, there will be no escape from the conclusion that the detainees are to be released, as their detention will have been proven to be useless.

And here, from the material brought before us in the two discussions that took place recently I have been impressed that there appear to be first signs of change as stated in the position of organizations related to the matter; and there is a real chance that the change will bring, finally, provision of information for which the petitioners are being held in detention.  This fact has been supported – soon after the first of the two hearings -- in the words of the secretary of the Hezbollah organization, Sheik Nasrallalla, who said in the media: that “I am sure and certain that the movement will discover what has become of Ron Arad’s fate.  We have been following this matter with great seriousness and we are full of confidence and optimism”; and that “we are not giving up on achieving a result in the case of the navigator Ron Arad.  We are following the matter and hope that all the prisoners of the Hezbollah in Israel will be released.” (See for example the Globus: from January 21, 2000; emphases mine, J.K.).

Unfortunately, we have not heard in the last discussion held on this episode, of the hoped for breakthrough; and ostensibly this heralds retreat to the old position.  However, I have been convinced that we must not rush to learn from the lack of advancement that real hope of achieving that breakthrough is lost; and this, taking into consideration that negotiation of this type is characterized by “ups and downs” which are directed at wearing down the opponent.  As for myself, it appears to me, that the door to the negotiation is not closed; and it is proper to examine the effectiveness of the continued detention against this background.  The significance of releasing the petitioners now is that we have reached the conclusion that there is no more use in holding them.  The latest developments do not necessitate this conclusion: and if it turns out that we failed, where will we find ourselves.

If my opinion is heard, I would propose to my colleagues to delay the hearing one further time; and go back and hear from the security forces details as to the developments that will take place in said negotiation, in two months from today.

Justice J. Türkel

1.  The path to the decision in the question before us was difficult and agonizing, simply put.  From the start, when I read the judgment of the Supreme Court in ADA 10/94[1] which was placed before us in this further hearing, I was of the opinion – as was the minority opinion there, which is the majority opinion here – that the Minister of Defence is not authorized by power of section 2(a) of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter: “the statute”), to order the administrative detention of a person in order to advance the release of prisoners and missing persons from among the security forces.  However, “the wind turns and turns; round it the wind returns”(Ecclesiastes 1,6 [51]), and at the end of the road I found myself standing in the place where those holding the majority opinion there – which is the minority opinion here – stood, and similarly held by President M. Shamgar and Justices G. Bach and T. Tal, in different decisions,  that the Minister of Defence is indeed authorized to do so.

2.  The primary reason for the change in my approach is that according to the objective purpose of the law, we have before us two reasonable constructions of the term “reasons of national security” from which a determination must be made.

One interpretation which emerges from the previous judgment of President A. Barak in ADA 10/94 [1]in which he said, inter alia, that: “it is true that the term national security can withstand many interpretations and many meanings” and that “I accept, in this matter, the position of the respondent, according to which just as the welfare of IDF soldiers frequently constitutes a consideration of national security, so too the welfare of missing persons and prisoners, including return to their homeland, constitutes a reason of national security.”  His conclusion there was that the severe damage to human dignity by the detention of the petitioners “is necessitated by the policy and security reality, and reflects the proper balance under the circumstances between the liberty of the individual and the need to preserve national security.” 

The second interpretation emerges from his opinion in the case before us, which was supported by five judges in this panel, and in it – valiantly and in open heartedness worthy of praise – he changed his mind and reached an opposite conclusion; meaning, that the purpose of the statute (the objective purpose) “leads to the conclusion that the purpose of the statute is only to apply to situations in which the administrative detention is necessary due to the danger posed by the detainee himself.”

3.  In determinations such as these, sometimes the legislator himself leads the way, as he did for example, in section 34u of the Penal Law according to which “where a law is subject to several reasonable interpretations according to its purpose, the matter will be determined by the interpretation that is most lenient with the one who is to bear liability according to that law.”  (On this matter see, inter alia, the words of President A. Barak on interpretation in criminal law in 6696/96 Kahane Binyamin v. State of Israel [31]; S.Z. Feller Foundations in Criminal Law, Vol. A, 1984 [37] p. 176 and further; M. Gur Aryeh, ‘Proposed Penal Law (Introductory Part and General Part) 5752-1992’ [45] at p. 9 and on).  However, at times, the choice between interpretations is done according to the relative weight of the values which are placed on the scales, as in the case before us.  As to this I stated elsewhere:

“After all this, I wonder what is the point in trying to weigh the competing values in the scales of the law, or in trying to follow ‘one of the paths of the law’, when the weight of the values changes according to the person applying the law, when it is possible to choose between several paths and when one path may even lead to different results. Even in the opinions of those of my colleagues who are of my opinion, more than one ‘legal path’ is presented whereby one may reach the result that they reached, which is no less ‘legalistic’ than the paths followed by those who disagree with them. If this is the case, what did those who followed this path achieve thereby?

Moreover, if there is indeed more than one ‘legal path’, how does one choose between the different paths and the different destinations to which each path leads? Is this choice also dictated by ‘the law’? In complex issues, like the one before us, there is no legal geometry that necessitates unequivocal results. Unlike my colleagues who think this, I cannot point to one solution, or to a ‘more correct’ solution, that can be applied in the case before us. The opinions before us illustrate well how different values can be put in the place of each variable in the chosen formula. Instead of the findings on which judges espousing one viewpoint rely, one can reach the opposite findings.”[CFH 2401/95 Ruth Nahmani v. Daniel Nahmani [32] at 739, see also pp. 734-741].  (See A. Barak, Interpretation in Law, Vol. 1, Rules of General Interpretation (1994) [38] at pp. 36-38; and , Ibid, Vol. 2, Statutory Construction (1993) [36] at pp. 555-558; I. Englard, Introduction to Jurisprudence, [39]at pp. 95-97).

My colleague Justice Cheshin sees in the command of redemption of prisoners “a command of the highest degree” which is tied to the fact that “all of Israel (and in our matter: not only Israel) are responsible for one another.”  Justice Kedmi holds similarly to him that “‘Redemption of prisoners’ is one of the basic values of the Jewish people; and it appears that none more than it demonstrates the basic responsibility of everyone in this nation for the liberty of their brothers, in the sense that all of Israel is responsible for one another.”  In their approach, the interpretation of the term is also derived from this.  I also hold as they do.

4.  I wish to add to the uplifting words of Justices Cheshin and Y. Kedmi.  The protection of the dignity and liberty of every person and protection of these basic constitutional rights (see section 2 and 4 of the Basic Law: Human Dignity and Liberty) is dearer than dear, however, in the episode before us it does not stand up against the protection of national security in the limited meaning of the term, as it is interpreted by the majority opinion holders.  In my eyes, the dignity and liberty of the detainees from among the fighters of the enemy are placed on the scales, one facing the other, against the dignity and liberty of our prisoners and missing persons; those who are in trouble and in imprisonment today and those who will, we hope not, be in trouble and imprisonment in the future.  Weighing these – which is at the core of the interpretive process – is not done within a legal laboratory but in a melting pot of values, including national ones, and feelings of human compassion.  When I come to weigh among these, I cannot but determine – albeit with sorrow and pain – that the dignity and liberty of our fighters is dearer to me than those of the enemy fighters.  This consideration tilts the scales toward a broadening interpretation of the term “reasons of national security”.

5.  Therefore, the question is asked whether the use made by the Minister of Defence of the authority to detain the petitioners – some of them from May 16, 1991 and most of them from September 1, 1992 – is “proportional” or perhaps “not proportional” (compare Yoma 21 p. A [52])?  In other words, after eight or nine years have passed has the measure been filled to the rim and the detention no longer to be continued?

My answer to this is that when it has been declared before us by the senior commanders in charge of handling the subject of prisoners and missing persons that there is an end and there is hope – and not in the distant future – we are not entitled to reject their professional opinion which is weighted more than our assessment.  When it is a matter of life and death – and the matter before us is one of genuine life and death – the small candle smoldering before us in the dark is not to be extinguished before it has gone out, which we hope it will not, on its own.  Therefore I would delay the decision until they have come and told us that all hope is gone.

6.  I have reached the end of the road that began with my view that the Minister of Defence is not authorized by authority of section 2(a) of the statute to order the administrative detention of a person in order to advance the release of prisoners and missing persons from among the security forces, and its end is in my conclusions of today that the law authorizes him to do this and that the use he is making of this authority does not go beyond that which is proportional.  I wish I could reach the conclusion that two interpretations of the term “reasons of national security” could live side by side – as though they are “opposites united at their root” (H.N. Bialik, “He Peered and was Injured”) – and I wish I could avoid any decision on the matter, however, as judges we are not entitled to spare ourselves from the law and we are not free to be released from reaching a decision.

7.  If my opinion were heard, we would leave the judgment of ADA 10/94 [1] as is for now and postpone the continuation of the hearing to two months from today, in order to hear from those in charge of dealing with the matter of the prisoners and missing persons whether holding the petitioners in detention still has benefit for advancing their release.

Justice D. Dorner

1.  I agree with the judgment of my colleague, President Barak, in the further hearing.  My opinion has remained as is since it was expressed by me – it was then a minority opinion – in ADA 10/94 [1].  I disagree with my colleagues, Justices Cheshin, Kedmi, and Türkel.

My judgment in ADA 10/94 [1], that the state is not entitled to hold the petitioners in detention by authority of the Emergency Powers (Detentions) Law 5739-1979 (hereinafter: “the Detentions Law”), was based on the factual foundation that the State presented.  According to this foundation, the purpose of the detention of the petitioners is to make use of them as bargaining chips in the course of the negotiation for the return of the imprisoned navigator Ron Arad and other prisoners and missing persons.  However, in light of the fact that the petitioners were members in organizations which fight against us in Lebanon, I added, that “this does not present a position on the question. . .  as to the authority to detain the appellant by authority of other laws, such as international law” (in section 3 of my judgment).

However, the State, which prosecuted the petitioners for membership in a hostile organization, did not argue in this further hearing that they are to be viewed as prisoners of war.  It continued to tie its authority to detain the petitioners to the Detentions Law and repeated the same factual foundation, according to which the petitioners do  not endanger national security and are held in detention only as bargaining chips to advance the release of our prisoners.

Against the background of this factual foundation, I wrote in the judgment on appeal:

“We must ignore . . . the membership of the appellants before us in hostile organizations and their past activity against Israel.  They have been punished for this membership and this activity, and these are not the grounds for their detention.  Is it that because the law does not explicitly prohibit the detention of family members of the enemy’s individuals, or other individuals whom for one reason or another the enemy might have an interest in their release, that we can interpret it as enabling their detention?  The position of my colleague President Barak leads to interpreting the law as enabling detention, for an unlimited time period, of any person, as long as the detention  benefits, if only indirectly, national security.  Such sweeping and unlimited authority is not even recognized by the rules of war in the realm of international law.  I cannot recognize it in the realm of Israeli law” [section 2 of my judgment].

2.  Citizens who are held in detention as bargaining chips are hostages as  defined in section 1 of the International Convention against the Taking of Hostages 1979.  The detention of hostages is absolutely prohibited  by this treaty. It has been established as follows in section 1 of the treaty:

“Any person who seizes or detains and threatens... to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridicial person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention.”

Israel signed this treaty on November 19, 1980 and even added its comment in this language:

“It is the understanding of Israel that the Convention implements the principle that hostage taking is prohibited in all circumstances and that any person committing such an act shall be either prosecuted or extradited pursuant to article B of this Convention or the relevant provisions of the Geneva Conventions of 1949 or their additional Protocols, without any exception whatsoever.”

Detention of citizens of an enemy state as hostages for any purpose was already absolutely prohibited thirty years earlier, in article 34 of the Fourth Geneva Convention (Relative to the Protection of Civilians During Times of War) 1949 (hereinafter: “the Geneva Convention”).  This includes their detention for the purpose of improving the conditions of prisoners of war, or in order to exchange them for prisoners of war, acts that were acceptable in prior times.  See, for example, English Manual of Military Law (1929) at 464.

There are those who believe that the severe prohibitions in the Geneva Convention, which were declared in section 147 of the Convention, including the prohibition on holding hostages, have, over the years, attained the status of customary international law.  See Yoram Dinstein, ‘Report on the Application of Customary International Law Concerning Armed Conflicts in the National Legal Order’, National Implementation of International Humanitarian Law - Proceedings of an International Colloquium at Bad Homburg June 17-19, (M. Bothe - ed., Dordrecht, 1990) [50].

A basis for their approach is found in the words written by the Appellate Committee in the matter of the extradition of Pinochet to Spain, which were quoted in agreement in the judgment of the House of Lords in that matter.  And it was written as follows:

“[T]he taking of hostages, as much as torture, has been outlawed by the international community as an offence... [I]nternational law has made plain that certain types of conduct, including torture and hostage taking, are not acceptable conduct on the part of anyone ... [T]he contrary conclusion would make a mockery of international law.”  (See also A. Barak, Interpretation in Law, Vol. 3, Constitutional Construction (1984) [40]at p. 323; Anne F. Bayefsky, International Human Rights Law (1992) [47] at p. 14).

In this way civilians are distinguished from prisoners of war whom it is permitted to hold until the end of the war and the return of the prisoners of war of the holding state.  See article 118 of the Third Geneva Convention.  But, as said, the position of the State in our matter is, that the petitioners are not prisoners, and they are held by authority of the Detentions Law.

3.  As we know, according to our legal system, the absorption of rules of customary international law is direct, and they are part of local Israeli law.  See, for example, HCJ 606/78 Eyov and others v. Minister of Defence [33].  Ratification of the International Convention which only anchors customary law does not turn what is stated in it to part of domestic law.  For this, adoption of the convention by law is necessary.  However,  case law has established an interpretive presumption according to which the laws of the state and the norms of international law to which the State of Israel is committed are in agreement, and that the laws of the state will be interpreted – as much as possible – as consistent with international law.  See, for example, CA 562/70 Alkotov v. Shahin [22] at p. 80; CrimA 437/74 Kwan v. State of Israel [34] at p. 596.  This is the case, in general, and all the more so in matters that relate to basic rights.

4.  In any event, whether the international prohibition on holding hostages is customary or conventional, it appears to me that there is no need for any interpretive effort in order to reach the conclusion that Israeli law does not permit the holding of hostages.

Even in the international laws of war it is absolutely prohibited for warring forces to balance the security needs of the state, including the need to guarantee the welfare of the prisoners of the warring force and their return from imprisonment, against the injury to the liberty of the citizens of the enemy state by holding them as bargaining chips.  All the more so, that a broad interpretation of municipal law, such that it will include the authority to hold people in detention for  the purpose of their serving as bargaining chips in the negotiations to release prisoners, is not appropriate.

5.  And in fact, in my opinion, there is no reasonable way to interpret the Detentions Law such that it will include such authority.

This was not the intent of the legislator, as emerges from the text of the Detentions Law literally and the legislative history, which teach us that the purpose of the law was just to enable the detention of people who endanger national security or public safety, and this when it is not possible to achieve this purpose within a criminal procedure.  Interpreting the law as though it authorizes detaining people in order to use them as bargaining chips also contradicts the principles of the legal system in the State of Israel,  a democracy which protects basic human rights.

In our matter, the purpose of the detention of the petitioners – advancing the release of Ron Arad and the other prisoners and missing persons – is as worthy as can be.  However, it cannot on its own grant detention authority.  The words of the stand-in President Chaim Cohn are appropriate here:

“Let no one think that these are no more than formal semantics, which come to undermine a security operation of great value: the regulations were intended to serve the state and its agents as a means of fighting against enemies from within, who come to do their evil damage to public safety; and how different the fighting of the state from the fighting of its enemies, as the one fights while keeping the law, and the other fights while breaching the law.  The moral strength and the substantive justness of the fighting of authorities are entirely dependent on protecting the laws of the state: in giving up this strength and the justness of its fighting, the authorities serve the purposes of the enemy.  The moral weapon is no less important than any other weapon, and may even be more important – and there is no more efficient moral weapon than the rule of law.  It is better that all who need to know, will know, that the rule of law in Israel will never succumb to its enemies.”

[HCJ 320/80 Kawasame v. Minister of Defence [35] at p. 132.]

6.  In my judgment in the appeal the subject of this further hearing I noted that even if the Detentions Law enabled detention for the purpose of using detainees as bargaining chips, it is not appropriate to extend the detention in this case.  As, I have not found that a reasonable possibility existed – and all the more so near certainty – that the discontinuation of the detention will undermine the possibility of releasing Ron Arad or other prisoners or missing persons.  Since the judgment on appeal approximately two and a half years have passed.  During this period neither Ron Arad nor any other prisoner or missing person has been released.  Unfortunately, the time that has passed has not increased the degree of reasonableness of the possibility that the detention of the petitioners would bring about the release of our prisoners and missing persons.

Therefore, I share the views of President Barak, Vice-President Levin, and Justices Or, Mazza, and Zamir, that the petitioners are to be released from their detention.

 

It has been decided as per the judgment of President Barak, against the opposing opinions of Justices M. Cheshin, Y. Kedmi and J. Türkel.

 

4 Nisan 5760

April 12, 2000

 

 

 

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

_________________________

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