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).

 

 

 

 

 

CrimA 9203/18

 

 

 

 

Appellant:                              Elad Gabber

                                                     

                                                      v.

 

Respondent:                           Attorney General

                                                           

 

 

On behalf of Appellant:         Adv. Avigdor Feldman; Adv. Yahel Ben-Oved; Adv. Yemima Abramovich

 

On behalf of Respondent:      Adv. Avi Kronenberg; Adv. Shiran Cohen

 

 

In the Supreme Court sitting as a Court of Criminal Appeals

 

Appeal on the judgment of the Jerusalem District Court (Judge C. M. Lomp) in Extradition Case 62059-12-17 (Oct. 21, 2018).

 

 

Israeli Supreme Court cases cited:

 

[1]       HCJ 8501/11 Gabber v. Judge Alexander Ron, (Dec. 15, 2011).

[2]       CrimA 2490/18 Journo v. State of Israel, (January 8, 2019).

[3]       CrimA 4596/05 Rosenstein v. State of Israel, IsrSC 60(3) 353 [2005] https://versa.cardozo.yu.edu/opinions/rosenstein-v-state-israel

[4]       CrimA 6182/98 Sheinbein v. Attorney General, IsrSC 53(1) 625 [1999].

[5]       CrimA 2258/11 Dern v. State of Israel, (June 20, 2012).

[6]       CrimA 2144/08 Mondrowitz v. State of Israel, (Jan. 14, 2010) https://versa.cardozo.yu.edu/opinions/mondrowitz-v-state-israel

[7]       CrimA 3439/04 Bazak v. Attorney General, IsrSC 59(4) 294 [2004].

[8]       CrimA 3915/15 Yam v. State of Israel, (Sept. 6, 2015).

[9]       CrimA 5227/10 Yuval v. State of Israel, (April 2, 2012).

[10]     CrimA 8801/09 Mayo v. Attorney General, (Sept. 21, 2010).

[11]     CrimA 7376/10 Novak v. Attorney General, (May 16, 2011).

[12]     CrimA 2521/03 Sirkis v. State of Israel, IsrSC 57(6) 337 [2003].

[13]     A. v. Attorney General, (March 12, 2009).

[14]     CrimA 6384/11 Ben Haim v. Attorney General, (Feb. 5, 2014).

[15]     CrimA 739/07 Efrat v. Attorney General, (June 7, 2007).

[16]     CrimA 6328/12 State of Israel v. Poldy Peretz, (Sept. 10, 2013).

[17]     HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 53(3) 289 [1999].

[18]     CrimA 7621/14 Gotsdiner v. State of Israel, (March 1, 2017).

[29]     LCrimA 1611/16 State of Israel v. Vardi, (Oct. 31, 2018) [English summary: https://versa.cardozo.yu.edu/viewpoints/summary-cases-2018-19-term#LCrimA1611].

[20]     CrimA 4855/02 State of Israel v. Borovitz, IsrSC 59(6) 776 [2005].

[21]     CrimA 7014/06 State of Israel v. Limor, (Sept. 4, 2007).

[22]     CrimA 8080/12 State of Israel v. Olmert, (Aug. 6, 2014).

[23]     CrimA 4506/15 Bar v. State of Israel, (Dec. 11, 2016).

[24]     CrimA 1690/09 A. v. State of Israel, (Oct. 10, 2010).

[25]     CrimA 3680/09 Silverman v. State of Israel, (Nov. 9, 2009).

[26]     CrimA 6717/09 Uzipa v. Attorney General, (Dec. 6, 2010).

 

 

 

J U D G M E N T

 

(July 14, 2019)

 

 

Before: Justice U. Vogelman, Justice D. Barak-Erez, Justice Y. Willner

 

 

 

Justice U. Vogelman:

 

            This is an appeal on the judgment of the Jerusalem District Court (Judge C. M. Lomp), in which the Appellant was declared extraditable to the United States pursuant to sec. 9(a) of the Extradition Law, 5714-1954 (hereinafter: the “Extradition Law”).

 

Summary of the Relevant Facts

 

1.         On March 13, 2017, the United States Government filed a request to extradite the Appellant, born in 1982 (hereinafter: the “Extradition Request” or the “Request”). According to the Extradition Request, during the years 2010-2011, the Appellant initiated contact with female minors through on-line platforms for the purpose of documenting them while performing sexual acts. The Appellant recorded the minors, sometimes without their knowledge, and sometimes while presenting himself has a teenager. Thereafter, the Appellant approached the young women via social networks and solicited them to perform acts of a blatant sexual nature, while broadcasting live video. According to the Request, this was done by threatening that the documentation  in his possession would be forwarded to their acquaintances and parents if they were to refuse. Many of the young women succumbed to the Appellant’s extortion. Others refused, and the Appellant carried out his threats. According to the Request, the Appellant approached approximately 150 female minors, aged 12-17, in this manner, and held a large number of pictures and videoclips in his possession.

 

2.         According to the Extradition Request, on August 15, 2014, a grand jury returned an indictment, filed against the Appellant in the Federal District Court of the State of California, for producing child pornography; coercing and soliciting a minor to perform sexual acts; extortion; and distributing child pornography. The indictment includes acts that relate to 19 female victims. Concurrently, an arrest warrant was issued against the Appellant.

 

3.         The Extradition Request was supported by an affidavit of prosecutor Lana Morton-Owens (hereinafter: the “Morton-Owens Affidavit”). The affidavit details the evidence against the Appellant: the victims’ testimonies, information from the platforms that the Appellant used, the content of the digital devices that were seized, and more. On November 1, 2017, the Minister of Justice instructed that the Appellant be brought before the Jerusalem District Court in order to determine whether he is extraditable.

 

            It should be noted that concurrently with the filing of the petition to declare the Appellant extraditable, a request was filed for his arrest until the completion of the extradition proceedings. Upon the consent of the parties, the Appellant was placed under electronic monitoring while the proceeding was being conducted.

 

4.         To complete the picture, it should be noted that a number of years before the Extradition Request was filed, on February 2, 2012, the Jerusalem Magistrates Court (Judge A. Ron) convicted the Appellant, based on his guilty plea, of offenses of willful infringement of the privacy of another and unlawful penetration into computer materials. The Appellant was sentenced to six-months of imprisonment to be served by community service, as well payment of compensation and a fine (CrimC (Jerusalem Magistrates) 36144-08-11 State of Israel v. Gabber (Feb. 22, 2012)). In that proceeding, the victims of the offense were Israelis, and some of the offenses were committed directly upon the victims and not via a computer. The Appellant’s argument that the information should be amended and that he should also be convicted of additional offenses to which he confessed, was rejected, as was his appeal (CrimA (Jerusalem District) 44985-02-12 Gabber v. State of Israel (May 9, 2012)). Additionally, a petition that the Appellant filed in this matter with the High Court of Justice (HCJ 8501/11 Gabber v. Judge Alexander Ron [1] (December 15, 2011) (hereinafter: “HCJ Gabber”)) was denied.

 

The District Court’s Judgment

 

5.         On November 29, 2018, the Jerusalem District Court (Judge C. M. Lomp) ruled that the Appellant was extraditable to the United States. The court first found that there is an extradition treaty in force between Israel and the United States, as required under sec. 2A(a)(1) of the Extradition Law, and that the “double criminality” requirement was met in the Appellant’s case, meaning that the offense for which he was charged in the United States is an offense in Israel that carries a sentence of imprisonment of one year or more. It was further held that there was sufficient evidence for the Appellant to be brought to trial in Israel – or a “basis for the charge” – and that the Appellant did not dispute this, except with regard to item no. 53 of the indictment – a claim that the court held should be clarified in the primary proceeding.

 

            The court found that the offense’s “center of gravity” is not in Israel, but rather in the United States. While it was indeed stated that the offense was committed and the investigation took place in Israel and that the Appellant is an Israeli citizen, however, the court held that where offenses that are committed via the internet are concerned, there is less significance to the physical location of the computer from which the offenses were committed. The court held that in this case the legally protected interest is of the citizens of the United States, whose authorities initiated the investigation. Additionally, the court stated that the fact that the Appellant’s case had already been addressed in Israel does not indicate that the majority of contacts is in Israel, inasmuch as he had stood trial in Israel for acts that were directed against Israeli victims, as specified above, some of which were even committed directly upon the victims of the offenses and not via a computer. It was held that it would be inappropriate to interfere in the discretion of the prosecutorial authorities that chose to charge him only for offenses that were committed vis-à-vis Israeli victims, and not for the remaining alleged offenses. It was further held that the fact that the Appellant admits to what is attributed to him does not make a difference in this context, and that the conclusion does not change in light of the enactment of Basic Law: Israel – The Nation State of the Jewish People (hereinafter: “Basic Law: The Nation State”).

 

            As to the delay in filing the Extradition Request, it was held that the extradition does not violate public policy. The court stated that the exception should be applied narrowly, and that a heavy burden of proof is required in light of the important interests inherent in extradition laws. The court ruled that the delay, which indeed occurred in filing the request – approximately 6 years from the time the evidence against him was discovered until it was filed – does not justify not extraditing the Appellant, since at issue are not “exceptionally exceptional” circumstances of delay within their meaning in case law. The court stated that the investigation was prolonged due to the identifying of the many victims and interviews that were held with many of them; the examination of a large volume of digital material; and additional evidentiary obstacles, which were not influenced merely by manpower considerations, as the Appellant argues. The court stated that the relevant instance in the United States will be able to address the matter of delay as part of examining the claim of alleged miscarriage of justice.

 

            The court also rejected the Appellant’s claim of selective enforcement in comparison to CrimC (Tel Aviv District) 37053-04-17 State of Israel v. Anonymous [2] (Nov. 22, 2018) (hereinafter: the “Anonymous case”). It was found that the Anonymous case concerned offenses of possession of obscene materials of minors, while the present case also concerns indecent acts, i.e. acts actively committed, attributed to the Appellant. The court stated that in the present case there are victims who might be required to come to Israel in order to testify if the Extradition Request were denied, while in the Anonymous case the evidence comprised only documents and media files.

 

            Finally, the court rejected the argument that the anticipated term of the Appellant’s imprisonment in the United States is very lengthy compared to the situation in Israel, since it is presumed that whoever commits an offense shall bear the punishment that is customary in the country whose citizens he harmed, and since examining applicable punishment would render extradition law a nullity. The court stated that the Appellant would be able to request to serve his sentence in Israel, pursuant to sec. 1A of the Extradition Law.

 

            And now to the appeal before us.

 

The Appellant’s Arguments

 

6.         The Appellant argues that he should stand trial in Israel and should not be extradited to stand trial in the United States. According to the Appellant, the center of gravity of the offenses that are attributed to him is in Israel, since the offenses were committed in Israel and the investigation material was gathered here. According to him, during his trial in 2011 he admitted to all the offenses for which he was investigated, including those that are included in the American indictment, and requested to stand trial for them in Israel. According to him, his request was denied since the investigation regarding the other offenses had not yet been completed at that time. The Appellant claims that in light of his admission, and in light of the fact that the charges are based on materials from his computer, there is no need at all to bring the victims of the offenses to testify. The Appellant further argues that given the enactment of Basic Law: The Nation State, which establishes the connection between Jewish Israeli citizens and their state as a fundamental principle, it should be held that he – as a Jewish Israeli citizen – should stand trial in Israel, since in the present case, the Basic Law indicates that the center of gravity is in Israel. According to him, a proceeding of deporting – even temporarily – an Israeli citizen may not be compatible with the values of the State of Israel. The Appellant argues that in the present case there is no explicit contradiction between the Extradition Law and Basic Law: The Nation State, as opposed to the situation in CrimA 2490/18 Journo v. State of Israel [2] (January 8, 2019) (hereinafter: the “Journo case”).

 

7.         According to the Appellant, the American indictment was filed with significant delay, even though it is based on materials that were already gathered in 2011, and without a satisfactory explanation being provided. The Appellant argues that there is no basis for the argument that such extended time was necessary in order to complete the investigation. The Appellant further argues that he has been living in the shadow of the risk of extradition for 7 years, and this has taken heavy psychological and economic tolls on him and his mother, his only family, and that this amounts to a miscarriage of justice and violates his right to due process. It was argued that it was inappropriate to leave the discussion on this matter to the American instance. The Appellant states that he never fled the law and that he took responsibility for his actions, and argues that this should be given consideration in the decision regarding his extradition.

 

8.         The Appellant raises a number of additional arguments. As to the offense of extortion that is attributed to the Appellant, he states that its statute of limitations under American law lapsed in 2016, such that the double criminality requirement is not met, and he should not be extradited for such offense. Additionally, the Appellant alleges selective enforcement compared to the case of Anonymous, who, as noted, was not extradited to the United State, despite many points of contact. According to him, these cases are not different. The Appellant further argues that there are no grounds for charge no. 35 in the American indictment, since it relates to a time when the Appellant was under arrest, and therefore could not have committed the acts attributed to him.

 

The Respondent’s Arguments

 

9.         The Respondent argues that there is no cause to intervene in the District Court’s decision and that the declaration of the Appellant as extraditable should remain in effect. According to the Respondent, the majority of contacts of the offenses that were allegedly committed by the Appellant are in the United States, since the harm to the victims occurred there and the legal proceedings against the Appellant were initiated there. It was argued that the center of gravity is not in Israel, since the Appellant could have committed his actions in any other state, and that the investigation in Israel was carried out pursuant to a request for legal assistance that was filed by the United States. According to the Respondent, it is proper to allow the victims of the offenses to participate in the legal proceeding in their country and in their language, and to allow them to choose whether to testify. According to the Respondent, the prosecution has broad discretion, and it chose not to try the accused for his actions that were directed towards minors in the United States, but only for his actions that were directly committed in Israel. The Respondent states that the Appellant’s argument that it was appropriate to consolidate the charges against him had already been rejected. As to the implications of Basic Law: The Nation State, it was argued that, as had already been held, it cannot prevent the extradition of an Israeli citizen, particularly in light of the exception prescribed in sec. 1A of the Extradition Law, which allows an Israeli citizen to serve the sentence – if such shall be imposed – in Israel.

 

10.       Regarding the argument of delay, the Respondent argues that no delay that amounts to a violation of public policy occurred, in light of the complexity of the investigation and the ongoing relationship between the authorities in Israel and in the United States. It was argued that the indictment was only filed in 2014 because there was a large number of victims – approximately 150 minors – who were spread across the United States, that extradition proceedings take a considerable amount of time, and that in that framework the authorities were also required to perform supplementary actions in order to verify the affidavits that had been taken.

 

11.       As for the other arguments, as far as the claim of selective enforcement is concerned, it was argued that the said Anonymous case is not similar to the case at hand, and that the analysis of the center of gravity in this case is completely different. With regard to the Appellant’s argument that the statute of limitations of the extortion offense had lapsed, the Respondent argues that the statute of limitations should be examined in light of Israeli law, pursuant to sec. 2B(a)(6) of the Extradition Law, and that since the offense of blackmail by threats is a felony – its statute of limitations has not yet lapsed, and that in any event, the investigation and the filing of the indictment stopped the clock on the statute of limitations. Finally, with regard to charge no. 53, it was argued that the indictment states that the act was committed “on or about” a certain date, and that the issue is a defense that should be examined in the framework of the criminal proceeding by the trial court in the United States.

 

Request to Introduce New Evidence

 

12.       The Appellant filed a request to introduce new evidence on appeal – psychological diagnoses that he underwent after the judgment had been delivered – which, he argued, could change the ruling. It was argued that it emerges from the expert opinion that the Appellant has second (of three) degree autism and personality disorders, a condition requiring behavioral and communication support. The Appellant states that while he did not claim in the District Court that his condition prevents extradition, the court was aware of the situation and took it into consideration in the decision not to order that he be held in custody. According to the Appellant, his condition should be taken into consideration, since he cannot conduct himself independently. Additionally, according to him, the justification not to extradite the accused in the Anonymous case was due to him suffering from autism, a fact that has relevance to the question of selective enforcement in the case at hand.

 

13.       The Respondent argues that the request should be denied. It is argued that the Appellant’s condition was already known since the beginning of the extradition proceedings, and that it was even agreed that he be released from arrest in order to receive medical opinions – but the Appellant refrained from filing them during the proceeding. It was argued that case law indicates that arguments regarding anxiety caused by the uncertainty involved in the extradition proceeding are to be rejected, and that it must be remembered that despite the Appellant’s alleged communication difficulties, he successfully convinced approximately 150 minors to perform sexual acts.

 

14.       Following the hearing we held on the appeal on May 2, 2019, the Appellant filed an additional request to introduce new evidence. The Respondent maintained his objection to the introduction of the evidence. In our decision dated June 17, 2019, we allowed the Appellant to introduce the said evidence, without taking any position on the merits of the matter. On June 24, 2019, the Appellant submitted the evidence, which includes a diagnosis by a medical committee of the National Insurance Institute, headed by Prof. Baruch Shapira, dated April 30, 2019, which states that a medical impairment of autism was found – as well as a confirmation of a permanent, weighted medical disability of 50%, as well as a confirmation of entitlement to a general disability allowance in the amount of NIS 3,312, due to 100% incapacity. In its response dated July 1, 2019, the Respondent argued that the documents that were filed do not determine anything regarding the Appellant’s ability to understand the extradition proceeding, and that if and to the extent that his medical condition has an impact on his criminal liability, he will be able to raise his arguments in the framework of the criminal proceeding in the United States.

 

Discussion and Decision

 

15.       I will already state at this point that after reviewing the appeal and the parties’ written and oral arguments, I have reached the conclusion that the appeal should  be denied in its entirety, and that the declaration of the Appellant as extraditable should be upheld.

 

The Normative Framework – Extradition Law

 

16.       In another case I discussed the general normative framework of extradition law  at some length, stating:

 

The extradition proceeding is a cooperative proceeding between states in criminal matters (see: CrimA 4596/05 Rosenstein v. State of Israel [3], 406 (2005) (hereinafter: the “Rosenstein case”); CrimA 6182/98 Sheinbein v. Attorney General [4], 639-640 (1999)); Shneur Zalman Feller, Extradition Law, 24 (1980)). A number of objectives underly the extradition proceeding, the main purpose of which is to balance the public interest – both national and international – in eradicating cross-border crime and preventing offenders from fleeing the law, against the right to freedom of the person whose extradition is requested (see CrimA 2258/11 Dern v. State of Israel [5], para. 11 (June 20, 2012) (hereinafter: the “Dern case”). For a review of the objectives of the extradition proceeding, see: CrimA 2144/08 Mondrowitz v. State of Israel [6], para. 32 (hereinafter: the “Mondrowitz case”)). In Israel, the proceeding is governed by the Extradition Law, which establishes that a person may be extradited from the State of Israel to another state if he committed an “extradition offense” (sec. 2A of the law), which is defined in sec. 2(a) of the law as an offense which, if committed in Israel, would be punishable by imprisonment for at least one year, provided that there is a treaty for the extradition of offenders between the State of Israel and the requesting state. The law further instructs – in regard to a person who has not yet been convicted, and whose extradition is requested in order to for him to stand trial – that he be declared extraditable if it be proven that there is sufficient evidence to try him for a parallel offense in Israel (sec. 9(a) of the law). The customary threshold for examining the sufficiency of the evidence in the extradition proceeding is a “basis for the charge”, see: the Dern case, para. 48; CrimA 3439/04 Bazak v. Attorney General [7], 299-300 (hereinafter: the “Bazak case”)). Alongside the aforesaid conditions, the law establishes exceptions, one or more of which will prevent the extradition of a person located in Israel to the requesting state (CrimA 3915/15 Yam v. State of Israel [8], para. 8 (hereinafter: the “Yam case”)).

 

17.       In the present case, there is no dispute that the preliminary conditions for extraditing the Appellant to the United States have been met: there is an extradition treaty between the Government of Israel and the Government of the United States; the offenses that are attributed to the Appellant are extradition offenses within their meaning in the law; and the evidence presented in the Appellant’s matter meets the evidentiary threshold required for the purpose of extradition. The Appellant disputed this last condition with regard to one item in the indictment, and we shall address this below.

 

18.       The dispute in this case revolves around a number of other questions that I will address in the following order: whether the “center of gravity” of the offenses  attributed to the Appellant is in the United States or in Israel, and the implications of Basic Law: The Nation State on the matter; whether there was a delay in the Appellant’s extradition proceedings to an extent that amounts to a violation of public policy or a miscarriage of justice that would justify not extraditing him; whether his extradition constitutes selective enforcement; whether there is a health justification preventing his extradition; and additional arguments that the Appellant raised.

 

            I will examine these questions below.

 

The Center of Gravity of the Offenses

 

19.       There does not appear to be any dispute that both states have jurisdiction to try the Appellant for his actions in the present case (for a detailed discussion, see: the Rosenstein case, para. 36). The State of Israel has jurisdiction that stems from the Appellant’s Israeli citizenship and by virtue of the territorial nexus, as the offenses were committed within the state’s territory (sec. 7(a)(1) of the Penal Law, 5737-1977 (hereinafter: the “Penal Law”)). The United States has jurisdiction that stems from a broad territorial nexus that applies to criminal acts that were intended to occur within the state’s territory or the commission of which impacted the state (CrimA 5227/10 Yuval v. State of Israel [9], para. 85  (hereinafter: the “Yuval case”); CrimA 8801/09 Mayo v. Attorney General [10] para. 15 (hereinafter: the “Mayo Case”); the Rosenstein case, paras. 24-25). The acts were committed in Israel via the internet, by an Israeli citizen, and the investigation materials were seized in Israel, but the acts were directed against victims in the United States, and the law enforcement authorities in the United States began the investigation in the case and “motivated” the investigation in Israel after their approach for legal assistance.

 

20.       In such a situation, in which both states have the capability to try the case, the question that arises is which state takes precedence for the legal proceedings. This Court has held that the decision should be made in accordance with the majority of the offenses’ contacts – or “links”, in other words, the location of the “center of gravity” of the attributed offenses (the Yuval case, para. 87; the Mayo case, para. 16;, the Rosenstein case, p. 416). In general, preference will be given to the physical location where the offense was committed, but this does not tip the scales, and each case will be examined on its merits, in accordance with its contacts (the Rosenstein case, p. 419).

 

21.       I am also of the opinion, as was the District Court, that the center of gravity in this case is in fact located in the United States and not in Israel. Indeed, the commission of the offenses and the investigation were in Israel, and the Appellant is an Israeli citizen, and accordingly there is a linkage to Israel. However, offenses of the kind that the Appellant committed are not limited to a narrow territorial area. An inherent characteristic of internet and computer offenses is their extra-territorial nature. This nature allows crossing borders in the blink of an eye and jeopardizing residents of states abroad. In the Rosenstein case, the Court emphasized that the expansion of the territorial linkage is meant to address this nature of offenses, “which, inherently, are not restricted to the borders of a single state” (the Rosenstein case, para, 30). In the case of offenses of such a nature, and particularly given the acceleration of technological development of on-line communications, the significance of the geographical location of the perpetrator of the offense diminishes (cf: the Rosenstein case, p. 433). The perpetrator can commit his actions from any state around the world and can send his arrows in any direction. All he needs is a network connection (the Mayo case, para. 17; see: Asaf Harduf, Cybercrime: An Introduction (2010) (Heb.)). Therefore, in these circumstances it is proper to locate the center of gravity based on the location of the victims (the Mayo case, para. 18; the Yuval case, para. 88; CrimA 7376/10 Novak v. Attorney General, [11], para. 14; the Rosenstein case, p. 432). The acts that the Appellant committed were directed at victims in the United States. That is where the victims were harmed, and the protected interests that were infringed are primarily located there.

 

            Even if the Appellant committed similar acts upon Israeli victims, that is not sufficient to divert the center of gravity in the case attributed to him, as they can be perceived as distinguished offenses. Firstly, because the offenses at issue were mainly direct acts against victims in Israel that were not limited to an on-line medium. Secondly, the Appellant has already been tried for those offenses.

 

22.       In this context, the Appellant claimed that the  center of gravity is located in Israel since he was already put on trial in Israel and admitted to all the offenses – even those that were included in the American indictment and were not part of the criminal proceeding in his matter in Israel. I cannot accept this argument. The prosecution decided not to charge the Appellant for his actions that were directed at victims in the United States. The Appellant objected to this decision, and his objections were rejected (the Gabber HCJ case). The Appellant also objected to the court’s decision not to convict him of additional offenses pursuant to sec. 39 of the Penal Law, and his objections were rejected both directly in the ruling and on appeal, and indirectly in the petition to the High Court of Justice. I am of the opinion that there is no cause to revisit these decisions.

 

            Indeed, it is true that when it was decided not to put the Appellant on trial in Israel for the said actions, the Extradition Request had not yet been filed on behalf of the United States. At present, the circumstances seem to have changed, since there is a pending request. However, I am not of the opinion that this is sufficient to change the ruling that was given in this matter. The authorities decided not to put the Appellant on trial for the actions that were attributed to him while they were aware of the investigation that the authorities in the United States initiated – since they were the ones that “motivated” the proceeding in Israel as well – and of the possibility that a request to extradite the Appellant may be filed. The basic principle that applies in extradition laws is prosecute or extradite (Aut dedre aut judicare; the Mayo case, para. 23). In this case, the State of Israel decided not to prosecute, but rather to extradite. It had its reasons, and there is no cause to deviate from previous judicial rulings concerning this decision.

 

23.       The Appellant further argued that in light of his admission to the acts that are attributed to him, and due to the fact that the charges against him are based on digital material that was seized on his computer, there is no need for the victims of the offenses to testify, and he even undertook that he would refrain from summoning them to testify. It is true that the proceedings in the Appellant’s matter are not expected to be as complicated as in other cases, since he chose not to conduct a defense and to confess to what was attributed to him. I am willing to assume that the complexity of the proceedings may be a possible consideration in examining the offenses’ center of gravity, which could indicate that the majority of contacts are to one legal system or another (cf: the Mayo case, para. 18; the Yuval case, para. 88). However, in the case at hand, even if the Appellant’s admission will obviate the need to hear evidence regarding the commission of the offense and save judicial time, it does not nullify the linkage between his acts and the United States and the interest in having him stand trial particularly there. It is the prosecution in the United States that holds the discretion for conducting the proceedings, and they shall decide how to do so, but the system’s interest in putting the Appellant on trial for infringing the protected  interests cannot be exhausted by a criminal proceeding conducted in Israel. The victims, whose naivety was abused by the Appellant, are entitled to have their voices heard, and to do so in their language and in their country Thus, the Appellant’s interest to conduct the proceedings in his country does not prevail.

 

24.       The Appellant further argued that the enactment of Basic Law: The Nation State tilts the scales in favor of not extraditing him to the United States, due to the right the emerges therefrom to stand trial in Israel as a Jewish-Israeli citizen. The Appellant emphasized that he is not arguing that Basic Law: The Nation State always rules in favor of not extraditing, but that in the circumstances of the present case, it adds weight to the scales. I cannot accept this argument. I am also of the opinion, as has already been held, that the enactment of Basic Law: The Nation State does not change the conclusion that the Appellant is extraditable. The Basic Law is not meant to protect offenders in Israel. Its provisions do not address extradition or related matters, directly or indirectly (the Journo case, para. 33). We should note that the legislature clearly expressed objection to extraditing Israeli citizens. However, the legislature chose to change the existing law and amend the Extradition Law such that it will allow extradition from Israel (the Extradition Law (Amendment no. 6), 5759-1999; for a broader discussion, see: the Rosenstein Case, paras. 58-59). Basic Law: The Nation State has not changed this normative situation. Our case law has already addressed the constitutionality of the Extradition Law in the past, as it infringes the right to freedom pursuant to sec. 5 of Basic Law: Human Dignity and Freedom, and it was held that it is not an unconstitutional law (see: ibid, para. 37). In this context as well, the normative situation has not changed in light of the addition of Basic Law: The Nation State to Israel’s constitutional tapestry.

 

Moreover, the Appellant will be permitted to request to serve his sentence in Israel, pursuant to sec. 1A of the Extradition Law, such that the concern that he will be “exiled” has no substance.

 

Public Policy and Delay

 

25.       According to sec. 2B(a)(8) of the Extradition Law, a possible exception for extradition is violation of public policy or of a vital interest of the State of Israel. The term “public policy” in this context has already been developed in our case law (see: the Yam case, para. 10 and the references there). Suffice it to say that extradition shall be deemed contrary to public policy if it will materially violate the sense of justice, morality and fairness of the public in Israel (CrimA 2521/03 Sirkis v. State of Israel [12], IsrSC 57(6) 337 (hereinafter: the “Sirkis case”)). If it is found that extradition is contrary to public policy within its meaning in the Extradition Law, the court will refrain from ordering it, even if the other conditions are met (ibid, para. 18). However, it must be remembered that given the important public interests that the law of extradition fulfills, such arguments will be accepted sparingly and only in unusual, exceptional cases (see: the Mondrowitz case, para. 114; CrimA 250/08 A. v. Attorney General [13] para. 31; the Sirkis case, p. 346).

 

26.       Violation of public policy may thus take many forms, one of which is delay. This Court has already ruled that in certain circumstances, a delay in extradition proceedings could amount to a violation of public policy (CrimA 6384/11 Ben Haim v. Attorney General [14], para. 25 of the opinion of Justice S. Joubran (hereinafter: the “Ben Haim case”); CrimA 739/07 Efrat v. Attorney General [15], para. 12 (hereinafter: the “Efrat case”), the Sirkis case, pp. 346-347)). The criteria that have been formulated in our case law point to a number of aspects that must be examined in order to determine whether there has been a delay that justifies not extraditing:

 

The length of the delay, considering the complexity of the extradition proceeding; its circumstances, including the severity of the offense, the extent of the fault of the authorities and of the requested person in prolonging the proceedings and the requested person’s conduct in the years that elapsed since the offense occurred; the extent the delay prejudices the requested person’s ability to conduct his defense; and whether the period of time that the delay added to the proceedings in the requested person’s matter will lead to his extradition creating an unjust and disproportionate outcome (the Yam case, para. 12).

 

27.       Moving from the general to the specific in this matter, I am of the opinion that it cannot be said that the delay, which did indeed occur in the extradition proceedings in the Appellant’s case, is unusual to a degree that justifies not extraditing him. As to the duration of the delay and its circumstances – indeed approximately 6 years elapsed from the investigation in the Appellant’s matter and until the time the Extradition Request was filed. During this period the Appellant experienced uncertainty regarding the future and the Sword of Damocles hovered over his head. It should be noted in the Appellant’s favor that he did not flee from the fear of the law, but rather admitted to his actions. However, the severity of the offenses must also be considered. It is difficult to overstate the severity of the attributed actions, and they were committed against a large number of victims over a not inconsiderable period of time. Accordingly, the scope of the investigation was broad: approximately 150 victims across the United States were identified, and it was necessary to interview them and turn their testimonies into an indictment comprising 68 charges in the matter of 19 victims. The evidence also included the examination of a large volume of digital material, much of which was translated from Hebrew to English (para. 1 of prosecutor Joey Blanch’s letter dated August 28, 2017 (hereinafter: the “Blanch Letter”). Indeed, it is regrettable that from the time of the filing of the indictment in 2014, additional significant time elapsed until the filing of the Extradition Request. However, there was some explanation for this in the need to verify the affidavits – due to the time that had passed – and to formulate the Extradition Request (the Blanch Letter, para. 2). This is contrary to the Appellant’s arguments that the delay stemmed solely from manpower issues. Additionally, it should be noted that the delay of the proceedings did not prejudice the Appellant’s ability to conduct his defense, inasmuch as he does not deny his actions.

 

28.       I am thus convinced that even if part of the delay was not inevitable,  this is not enough, under the circumstances, to justify not extraditing him, since what is at issue is not an unjust, disproportionate outcome (see: the Yam case, para. 15; the Ben Haim case, para. 36, and cf: the Mondrowitz case, para. 128). It must be remembered that an extradition proceeding, which involves authorities from various states, requires complex coordination and cooperation, which may take not inconsiderable time. It must be hoped that the authorities will act as quickly as possible in order to prevent an unnecessary delay of justice. However, not every prolonging of an extradition proceeding justifies stopping it.

 

29.       It should be further stated, in this regard, that the Appellant argued that the period of time during which he waited for the Extradition Request amounts to a violation of his right to due process, due to the psychological toll it took on him and his mother – his only family. Our case law has already held that the right to due process also applies in extradition matters, and that in cases in which it is materially violated, this could amount to a violation of public policy which would justify not extraditing (the Mondrowitz case, para. 112, the Mayo case, para. 25). However, I did not find that the Appellant argued that the criminal proceeding itself, as it shall be conducted in the United States, may be unfair, and arguments that relate to the difficulty of conducting a legal proceeding in a foreign legal system, and particularly in the United States, have already been rejected in our case law (see the Mayo Case, para. 25; the Rosenstein case, paras. 55-56). Rather, the Appellant argued that the mere delay in filing the Extradition Request violated his right to due process. I cannot accept this argument. We examined whether this delay amounts to a violation of public policy which justifies not extraditing, and we reached the conclusion that this is not the case. The Appellant’s right to due process, insofar as it relates to conducting the extradition proceeding, was not violated due to the period of time that elapsed since the acts were committed, or, at least, was not violated to a degree that justifies not extraditing him. Indeed, the delay certainly exacted no small toll from him and his mother, but this is not enough to justify not extraditing. In any event, I am confident that the Appellant will be able to raise his arguments regarding miscarriage of justice in the framework of the criminal proceeding in the appropriate instance in the United States, and it is presumed that the court will examine the matters thoroughly and will rule on their implications.

 

Selective Enforcement

 

30.       As noted, the Appellant claims selective enforcement in comparison with the Anonymous case. Arguments of such nature have been recognized in our case law as part of the general “equitable defense” doctrine, which also applies in extradition proceedings – whether as part of general criminal law or as part of the public policy exception in the Extradition Law (see the Mondrowitz case, para. 117; the Rosenstein case, para. 10; for a discussion on the matter whether selective enforcement can also be argued as part of administrative judicial review in criminal procedure, see CrimA 6328/12 State of Israel v. Poldy Peretz [16] paras. 29-31 (hereinafter: the “Peretz case”)). Selective enforcement is such that “infringes equality in the sense that it distinguishes, for the purpose of enforcement, between similar people or between similar situations in order to achieve a wrongful purpose, or based on an irrelevant consideration or out of pure arbitrariness” (HCJ 6396/96 Zakin v. Mayor of Beer Sheva [17], 305). Indeed, over the years various positions have been expressed regarding the scope of this argument (see: the Peretz case, para. 23; CrimA 7621/14 Gotsdiner v. State of Israel [18], para. 56 of the opinion of Justice Barak-Erez, and the supporting references there); LCrimA 1611/16 State of Israel v. Vardi [19], and cf: CrimA 4855/02 State of Israel v. Borovitz [20],  814; CrimA 7014/06 State of Israel v. Limor [21]). However, there can be no dispute that a fundamental condition for the claim is proof of discrimination, and in the present case I am of the opinion that the Appellant has not met this requirement.

 

31.       Indeed, there is a certain similarity between the Anonymous case and the present case – the accused there used his computer in Israel to commit offenses that were directed at the United States, and was charged, inter alia, with possession and publication of obscene materials of minors, and his punishment was even reduced due to his being diagnosed as autistic (the Anonymous case, p. 18). However, I am of the opinion that the differences outweigh the similarities. The main difference, as the District Court stated, relates to the fact that the indecent acts and extortion involved the Appellant’s active conduct. As opposed to the accused in the Anonymous case who possessed obscene material, in the present case the Appellant acted in order to obtain them, and while doing so seriously harmed a large number of young women. It should be noted in this context that if the proceeding were to be conducted in Israel, it is possible that the victims would need to come to Israel in order to deliver testimony, even if only regarding the matter of the harm that was caused to them, even though the Appellant admits to his actions. This is contrary to the Anonymous case where the evidence was based solely on documents and media files. These considerations tilt the center of gravity towards the United States, in comparison to cases of possession of materials alone. The young age of the accused in the Anonymous case, who was prosecuted as a minor in Juvenile Court, was also a consideration in favor of not extraditing.

 

32.       To this one must add that infringement of equality where there is a clear, consistent policy is not the same as one distinct case. The Appellant could not have demonstrated – and in any event he did not attempt to claim – that he relied on the authority’s consistent enforcement policy, and that not putting him on trial was tainted by male fide on the authority’s behalf (the Peretz case, para. 32). Therefore, even if we were to assume, for the sake of argument, that the enforcement was somewhat different, this is not a severe flaw in the authority’s conduct that would justify intervention (ibid, paras. 33-34).

 

Not Extraditing due to the Appellant’s Medical Condition

 

33.       The Appellant argues that he has high level autism and has personality disorders, and that he is unable to conduct himself independently, and therefore, he should not be extradited. As noted in the framework of his request to introduce evidence on appeal, the Appellant presented a document confirming his disability (as specified above in para. 14).

 

34.       Regarding the request to introduce new evidence on appeal, in general, the appeal instance will not accept new evidence, except if “this is required in order to do justice”, in which case the appellate court is permitted “to take evidence or direct the previous instance to take such evidence as it may direct” (sec. 211 of the Criminal Procedure [Consolidated Version] Law, 5742-1982). The case law of this Court has prescribed three considerations which should be taken into account in this context: First, whether the petitioner had the possibility of obtaining the additional evidence during the hearing in the previous instance. Second, the interest in preserving the principle of finality. Third, the nature of the additional evidence and the prospects that its submission will lead to a change in the outcome reached by the previous instance (CrimA 8080/12 State of Israel v. Olmert [22], para. 11). This last consideration is of primary importance (CrimA 4506/15 Bar v. State of Israel [23], para. 76; CrimA 1690/09 A. v. State of Israel [24]). In the present case, I am not of the opinion that the Appellant’s request meets the said criteria. As I indicated above, it is doubtful whether the Appellant was unable to present the evidence – or at least a part thereof – and, as shall be specified below, the additional evidence does not change the final outcome.

 

35.       Even if I were to assume that the new evidence was before us and that the Appellant has autism at the level that was determined, I am not of the opinion that the argument that his condition prevents extradition should be accepted.

 

            First, the Appellant did not argue in the District Court that his medical condition prevented his extradition, although his condition was known, even if the medical disability had not been formally determined. The Appellant also received the Respondent’s consent to leave the electronically monitored arrest for the purpose of examining his medical condition and receiving opinions, but he refrained from filing them prior to the appeal, despite the fact that he claims that his condition has been making it difficult for him to conduct himself in an independent manner for years.

 

Second and of primary importance, our case law has held that the suffering by the person requested in an extradition proceeding is inherent to the proceeding itself and does not contradict the basic principles of society (the Yuval case, para. 97; the Mondrowitz case, para. 115), and public policy necessitates refraining from extraditing a person only if it will lead to severe abuse and indescribable suffering (the Sirkis case, p, 347). This also holds true when the extradition relates to a person who suffers from health problems, since “a fragile health condition cannot grant a person immunity from bearing the consequences deriving from his actions” (CrimA 3680/09 Silverman v. State of Israel [25], para. 9). In the present case, the Appellant’s condition does not prevent him from standing trial – and even he does not claim otherwise. Furthermore, the Respondent justifiably stated that the Appellant’s condition and his communication disabilities did not prevent him from maintaining on-line contacts with approximately 150 young women and soliciting them to perform various sexual acts. There is no dispute that the Appellant’s condition may limit his ability to conduct himself independently, and that conducting a criminal proceeding in a foreign state is not easy, but this is not a violation of an intensity that justifies not extraditing him.

 

36.       The Appellant’s arguments regarding his condition will be raised at the appropriate place and time for the purpose of sentencing. It is presumed that the authorities in the United States will provide a solution that is suitable to the Appellant’s condition during the conducting of the proceeding. To this one must add that the sentence can be served in Israel, and at that stage, as well, it is presumed that the authorities will consider the Appellant’s condition and give it appropriate weight in deciding upon his matter.

 

Additional Arguments

 

1. The Statute of Limitations for the Extortion Offense

 

37.       The Appellant argues that the offense of extortion that is attributed to him was committed in 2011, and its statute of limitations under American law already lapsed in 2016. Therefore, he claims that the double criminality requirement was not met for this offense and he should not be extradited for it. This argument must rejected. In the past, the Extradition Law prescribed a “double” criterion for examining the statute of limitations, in the framework of which the laws of both the extraditing state and the state requesting the extradition were examined. At present, the normative situation has changed. Section 2B(a)(6), which was added to the law in 2001 (Extradition Law (Amendment no. 7) Law, 5761-2001), prescribes that a possible exception to extradition is if the statute of limitations for the offense (or the punishment therefor) lapsed pursuant to the laws of the State of Israel (see: Extradition Law (Amendment no. 8) Bill, 5761-2000). Meaning, we are not examining the laws of the statute of limitations in the state to which the extradition is requested, but rather according to our laws (see: the Efrat case, para. 4; the Mondrowitz case, para. 59). It should be noted that there is an opinion that even at present, following the amendment of the law, the statute of limitations laws of the requesting state should also be examined, and this has not been decided in our case law (See: CrimA 6717/09 Uzipa v. Attorney General, [26], para. 62 (hereinafter: the “Uzipa case”); the Bazak case, para. 21). I am of the opinion that there is also no need to rule on this question in the present case, for reasons upon which I shall elaborate below.

 

38.       In terms of Israeli law, the Respondent is correct that the statute of limitations for blackmail by threats under sec. 428 of the Penal Law – which corresponds to the offense for which the Appellant is charged – has not yet lapsed. This is due to the fact that we are concerned with a felony (sec. 24(1) of the Penal Law), for which the statute of limitations is 10 years (sec. 9(a)(2) of the Criminal Procedure [Consolidated Version] Law, 5742-1982 (hereinafter: the “Criminal Procedure Law”)). Therefore, it is not necessary to examine whether – as the Respondent argues – the investigation, the filing of the indictment and the filing of the Extradition Request stopped the clock on the statute of limitations, in accordance with sec. 9(d) of the Criminal Procedure Law (cf: the Mondrowitz case, para. 71).

 

39.       As for the law of the State of California, which applies to the Appellant’s matter, the Extradition Request clearly states that the statute of limitations for the offenses attributed to the Appellant has not lapsed. The Morton-Owens Affidavit refers extensively to the question of limitation, and clarifies that for the offense of extortion, for which the punishment is two years of imprisonment, there is a 5-year statute of limitation – while the indictment against the Appellant was filed in 2014, less than 5 years after the acts were committed (para. 26 of the Morton-Owens Affidavit), and this is sufficient to stop the clock on the statute of limitations. This is an affidavit that was given by an American prosecutor who is well versed in the applicable statute of limitations law, and in the indictment and investigation proceedings in the matter of the Appellant. I am satisfied that this is sufficient for the purpose of the extradition proceeding (see: the Uzipa case, para. 62). Additional arguments that are raised in this matter should be examined in the framework of the criminal proceeding before the appropriate instance in the United States.

 

2. Charge no. 53

 

40.       The Appellant argues that charge no. 53 of the indictment does not have an evidentiary basis because it refers to a time when the Appellant was under arrest. As the Respondent stated, para.111 of the indictment states that the act was committed on or about July 16, 2011. The Appellant was under arrest as of July 11, 2011. This difference is not sufficient to undermine the alleged evidentiary grounds of the charge, considering that the court does not examine the credibility and the weight of the evidence in the framework of the extradition proceeding as long as at issue is not evidence that is prima facie worthless (the Uzipa Case, para. 9). As the District Court correctly stated, this argument should be examined in the primary proceeding, since an extradition proceeding is not a full criminal proceeding that determines the accused’s guilt or innocence (the Bazak case, para. 12).

 

Conclusion

 

41.       Thus, I have found that the Appellant’s arguments should be rejected, and that there is no cause to intervene in the District Court’s judgment. The majority of the contacts in regard to the offenses attributed to the Appellant are tightly linked to the United States, and it follows that there is no place to intervene in the determination regarding extraditing the Appellant to that country for the purpose of standing trial. Additionally, I have not found that the delay in initiating the proceedings against the Appellant amounts to a violation of public policy to an extent that justifies not extraditing him. This is also the case in regard to the suffering that the extradition may cause him due to his medical condition. I have also not found that the Appellant has an equitable defense claim, as it has not been proven that the decision in his case is tainted by selective enforcement. The Appellant’s additional arguments are also rejected.

 

            I do find it appropriate, prior to signing, to state that the difficulty in the Appellant’s condition was not unnoticed. It is presumed that the authorities in the various states will provide a suitable solution, and the Respondent should communicate the need to consider his disabilities to the relevant authorities (in Israel and in the United States). Additionally, if the Appellant will be convicted and sentenced to imprisonment, then – as stated – the possibility is open for him to serve it in Israel, and this could, to a certain extent, alleviate the difficulties which he is expected to face, and it is presumed that consideration will be given to his medical condition and to what it entails.

 

            In conclusion. I  recommend to my colleagues that the appeal be denied, such that the declaration of the Appellant as extraditable to the United States shall remain in effect.

 

                                                                                                           

 

Justice Y. Willner:

 

I concur.

 

                                                                                                           

 

Justice D. Barak-Erez:

 

1.         I concur in the opinion of my colleague Justice U. Vogelman, but would like  to clarify my opinion regarding two points raised in that opinion.

 

2.         First, I wholeheartedly concur with the decisive statement that  Basic Law: Israel – The Nation State of the Jewish People bears no relevance to the discussion of questions of extradition. Not only were these matters already clarified in previous case law, but it is proper to reiterate – from the aspect of basic considerations of justice – that one cannot conceive that our legal system would grant different treatment to people standing criminal trial based on their religious or national origin. It appears that it would have been better had such an argument never been raised at all.

 

3.         Secondly, considering the additional difficulty involved in conducting a criminal proceeding from the perspective of a person with disabilities (see and cf: Sagit Mor and Osnat Ein-Dor, Invalid Testimony: Disability and Voice in the Criminal Procedure, 16 Mishpat U’Mimshal 187 (2015)), I would like to reinforce the words of my colleague as to the presumption that applies to the authorities in the United States in all that relates to providing a solution to the Appellant’s difficulties. We are not ignoring the additional difficulty which the Appellant faces due to the detachment from his supportive environment. However, as my colleague emphasized, we must also consider the matter of the complainants. There is some comfort in the fact that if the Appellant will be convicted and be sentenced to imprisonment, he will be able to request to serve his sentence in Israel, pursuant to the Serving a Prison Sentence in the Prisoner's Country of Nationality Law, 5757-1996.

 

                                                                                                           

 

Decided as stated in the judgment of Justice U. Vogelman.

 

Delivered this day, the 11^th day of Tamuz 5779 (July 14, 2019).

 

 

 

[Emblem]

 

In the Supreme Court as High Court of Justice

 

   HCJ 390/79

 

Before:                                    The Honorable Justice Landau – Deputy President

                                    The Honorable Justice Witkon

                                    The Honorable Justice Asher

                                    The Honorable Justice Ben Porat

                                    The Honorable Justice Bechor

           

 

The Petitioners:

 

                                    ‘Izzat Muhamamad Mustafa Dweikat et al.

 

                                    versus

 

The Respondent:

 

1. The State of Israel
2. The Minister of Defense
3. The Military Commander for Judea and Samaria
4. The Military Commander for Nablus Sub-District
5. Felix Menahem
6. Shvut Avraham

                                   

                                    Objection to Order Nisi of date 25 Sivan 5740 (June 20, 1979)

 

Adv. E. Khouri

                                    On behalf of Petitioners 1-16

 

                                    Adv. A. Zichroni, Adv. A. Feldman

                                    On behalf of Petitioner 17

 

                                    Adv. G. Bach, State Attorney

                                    On behalf of Respondents 1-4

                                   

                                    Adv. R. Cohen, Adv. M. Simon

                                    On behalf of the Respondents 5-6

 

 

 

 

Abstract

 

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land privately owned by Arab residents. On the morning of June 7, 1979, Israeli citizens, assisted by the IDF, began to settle on a hill east of the Jerusalem-Nablus road. The hill is entirely on rocky and undeveloped land. The land was privately owned by, and registered to, the petitioners in the Nablus registry. Two days before the settlers arrived on the land, the Commander of the Judea and Samaria area, signed an Order for the possession of land that declares the lands were possessed for military needs.

The petitioners approached this court on June 14, 1979, and on June 20, 1979, an order nisi was granted against the respondents, ordering them to show cause why the court should not declare the Orders of Possession invalid. An interim order was also issued to prohibit any additional digging, construction, or settlement of additional citizens on the relevant land.

In the responding affidavit, the Chief of the General Staff explained that a civilian settlement at that location was required for security purposes, because in a time of war, military forces may leave the base in order to execute mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. Opposing the Chief of General Staff, the Minister of Defense believed that these security needs could have been met in ways other than a settlement at the relevant site. Additionally, according to Lieutenant General (Res.) Bar-Lev, during wartime, IDF forces would be grounded to secure the civilian settlement, instead of engaging in combat with enemy forces.

 

The main issue the court considered (in a majority opinion by Deputy President Landau), was whether it may be legally justifiable to build a civilian settlement on the relevant site, despite having taken possession of private property for such purposes. For each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

 

The legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander, an order that is directly rooted in the powers that international law grants a military commander in territories occupied by his forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to the laws of war under international law. Substantively, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the authorities granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. Customary international law is in any event part of Israeli law to the extent it does not conflict with domestic legislation.

 

The court discussed the Beit El case (HCJ 606/78), in which a civilian settlement was found to comply with Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation”, and held that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” Here, the Court interpreted military needs to include “ensur[ing] public order and safety” under Article 43 of the Hague Regulations, as well as – under Article 52 – what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity, which may come both from outside and from within. It must be demonstrated, according to the facts of the case, that military needs were those which effectively motivated the decision to build a civilian settlement at the relevant site. The court found that here, the professional opinion by the Chief of the General Staff, in itself, did not lead to the decision to build the settlement of Elon Moreh, but that the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the Government was actually the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. Both the Ministerial Committee and the Government majority were determinatively influenced by reasons that are of a Zionist worldview as to the settling of the entire Land of Israel.

 

Military needs, under international law, cannot be construed, by any reasonable interpretation, as including national security needs in their broad sense. Where the needs of the military are concerned, one would expect military officials to initiate the settlement on that particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the Government for approval of the settlement. Here, it is clear that the process was inverted: the initiative came from the political level and the political level reached out to the Chief of the General Staff for his professional opinion. The fact that those charged with assessing the military needs were not those who initiated the process to settle that particular site, but that, instead, their approval of that site was given only after the fact, in response to the initiative of the political level, demonstrates that there, in fact, was no military necessity to take private property in order to build a civilian settlement, as required by the terms of Article 52 of the Hague Regulations. It was not proven that in establishing this civilian settlement, the military preceded the act of settlement with thought and military planning. Instead, the pressure exerted by the people of Gush Emunim was what motivated the Ministerial  Committee. Military considerations were subordinate to the political decision to build the settlement. As such, this does not meet the strict demands of the Hague Regulations as to preferring military needs over the individual’s right to property.

The Court also addressed the issue of how a permanent settlement can be established on land that was possessed only for temporary use. The decision to establish a permanent settlement that is intentionally designed to stand in its location in perpetuity – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were, in advance, intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown.

The concurring opinion by Justice Witkon reiterated that the legal framework is the state authorities’ actions both in light of the domestic (or “municipal” as it is commonly termed in this context) law and in light of international law. There is no dispute that the force of the orders, in terms of the domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” Here, however, even the experts charged with state security are divided as to the need for settlement in the relevant location

Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense and the Chief of the General Staff. In terms of the hierarchy between them there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the court.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, the court asks: who bears the burden of proof? Justice Witkon held that the burden is placed upon the respondents. The law does not give the commander’s assertion that the taking of possession in required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. The court need not be convinced of the sincerity of the consideration, but rather of its correctness.

 

The Court must not allow a serious infringement of property rights unless it is satisfied that it is necessary for security purposes. Here, as noted, the Minister of Defense himself was not persuaded this possession was necessary. It is not the court’s business to engage in political or ideological debates; but it is the court’s duty to examine, whether pure security considerations justify taking possession of land for the purposes of settling at that location. To determine this, Justice Witkon thought it important to know what the settlers’ position was. If they were not motivated, primarily, by security purposes, the court struggled to accept that this indeed was the purpose of their settlement.

Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations. Here, too, the test is the military need, and when one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either.

The question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of Article 49(6) of the Geneva Convention is not easy, and, as far as we know, it has yet to be resolved in international case law.

In his concurring opinion, Justice Bechor found that, had the court reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs, which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, he would have endorsed his action. But, as the Deputy President demonstrated in his opinion, the action of the military commander exceeded in this case the limits of its power under international law.

 

Judgment

Deputy President Landau

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land that is privately owned by Arab residents. A similar issue was decided by this Court in HCJ 606/78, Suleiman Taufic Ayuv et al. v. the Minister of Defense and 2 Others; Jamil Arsam Mataua and 12 Others v. the Minister of Defense and 3 Others, IsrSC 33(2) 113, 127, 124-129, 128-129, 131, 132-133, 120, 126, 116, 118, 119 (hereinafter for brevity: the Beit El matter), on March 13 1979. We ruled there that the establishment of two civilian towns on private lands in Beit El near Ramallah and in the B Valleys by Tubas violated neither domestic Israeli law nor customary international law, which constitutes part of domestic law, as both towns were established for military purposes, as we interpreted the term.

It was said in the Beit El case (bottom of page 128), in terms of the justiciability of this issue, that the problem of the settlements “is in dispute between the government of Israel and other governments, and that it is liable to be at issue at fateful international negotiations in which the Government of Israel is involved.” Meanwhile, the intensity of the dispute has not since subsided in the international arena; moreover, it has intensified within the Israeli public discourse, as well, as reflected in the very decision to build a civilian settlement in Elon Moreh, which was adopted by a majority vote in the Israeli cabinet. This, therefore is a pressing issue that is hotly debated within the public. In HCJ 58/68, Binyamin Shalit v. Minister of Interior , IsrSC 23(2) 477, 521, 530 (the issue of “who is a Jew”), I wrote (at the bottom of page 521) of “… the grim result in which a court seemingly abandons its rightful place, above the disputes that divide the people, with its justices themselves entering the fray…”, and on page 530, I explained – as one of the minority justices – that the Court must refrain from ruling on the dispute there, when it has no valid source for its ruling. I added that even in such case, “there may be instances where a justice sees himself as compelled to respond with his personal position on matters pertaining to his own worldview, though it is controversial.” This time we have valid sources for our ruling and we need not, and further – must not, when adjudicating, involve our personal views as citizens. Still, there is great concern that the Court might be seen as having abandoned its rightful place in entering the fray of public controversy, and that its decision might be received by part of the public with applause and by the other part with complete and passionate rejection. In this sense, I see myself here as obligated to rule in accordance with the law, in any matter lawfully brought before this Court. That is what compels me, knowing full-well in advance that the public at large would pay no attention to the legal reasoning, but only to the ultimate conclusion, and that the Court, as an institution, could have its rightful stature compromised, beyond the disputes that divide the public. But what can we do? This is our role and this is our duty as justices.

On the morning of June 7, 1979, Israeli citizens, assisted by the Israel Defense Forces (IDF), began to settle on a hill, located about 2 kilometers east of the Jerusalem-Nablus road, and about the same distance south east of the intersection of that road with the road descending from Nablus toward the Jordan Valley. The operation was carried out with the assistance of helicopters and heavy machinery. A road was forged from the Jerusalem-Nablus road to the hill. The entire hill is rocky and undeveloped land (aside from a small plot on the site’s north-west side, which was plowed and planted only recently, and in the opinion of the respondent’s expert, this was done out of season, at a location where there is no prospect of any financial gains from the produce). However, forging the 1.7 kilometer road, required harming the existing sorghum crops, in a territory of about 60 meters long and 8 meters wide, as well as about six four-year-old olive plants.

The hill is located within the lands of the Rujeib village, which is located nearby to the northwest. The seventeen petitioners, who are residents of the village, hold plots registered to their names in the Nablus registry after having gone through a process of land regulation. The total area of their plots is about 125 Dunams. The petitioners hold no rights of ownership in the land of the forged road.

On June 5, 1979, two days before the settlers arrived on the land, Brigadier General Binyamin Ben Eliezer, the Commander of the Judea and Samaria area, signed an Order for the possession of land number 16/79 (hereinafter: “Order of Possession” or “Order of Possession n. 16/79” – ed. note). The heading of the Order of Possession reads: “Under my authority as area commander, and because I believe it to be required for military needs, I hereby order as follows:…”. And in the body of the Order the signer declares a territory of about 700 dunams, defined by a map that was appended to the order, as “possessed for military needs.” Petitioners’ plots are included within this territory. Section 3 of the order stipulates that any lawful owner or holder of the land included in the territory would be permitted to submit, to a Claims Department Officer, a claim for periodical use fees, due to the possession of the land, and for compensation for any real damage caused in the course of the taking of possession. Under section 5, “notice of the contents of the order will be given to owners or holders of land located in the territory.” A similar order pertaining to the terrain of the road to the hill (number 17/79) was signed only on June 10, 1979 – three days after the settlement on the land. As for giving required notice to the land owners, including the petitioners, it turns out that only on the actual day of the settlement on the land, at 8 am, around the time the works on the site began, a notification of the order was given to the leaders (mukhtars) of the Rujeib village, who were summoned to the office of the Nablus military ruler. Written notices were given to the leaders only on June 10, 1979, for delivery to the land owners. In the responding affidavit for this petition, Lieutenant General Raphael Eitan, the Chief of the General Staff, says that it would have been appropriate to give advance notice to the land owners of the intent to possess the land, as is customary as a general rule in similar cases, and that he has instructed that, in the future, such notices be given to the relevant land owners at an appropriate time before the possession of the land. It is unclear why those in charge deviated from the prevailing custom this time. It seems that the arrival on the land was organized,  as if it were a military operation, exploiting the element of surprise, with the intent of preempting the “risk” of this Court’s intervention, as some the land owners had already approached the Court prior to the commencement of the work on the site.

The petitioners approached this Court on June 14, 1979, and on June 20, 1979 an order nisi was granted against the respondents – the Government of Israel, the Minister of Defense, the regional Military Commander of Judea and Samaria, and the Military Commander of Nablus – ordering them, inter alia, to show cause why the Orders of Possession should not be invalidated and why the instruments and structures on the land should not be removed in order to prevent the building of a civilian settlement on the land. Additionally, an interim order was issued to prohibit any additional excavation or construction on the relevant land, as well as the settlement of any additional citizens on it, in addition to those who settled on it before the interim order was granted. This interim order is in effect until today, with certain changes made at the request of the settlers over the course of the hearing of the petition.

In the responding affidavit, the Chief of the General Staff explained that in his opinion establishing a civilian settlement at that location is required for security purposes, and that his position as to the security significance of the territory and the settlement on it was brought to the knowledge of the Ministerial Committee for National Security Affairs,. The Ministerial Committee resolved in its meetings on May 8, 1979 and May 10, 1979 to approve the possession of the land through an Order of Possession for the purposes of building the settlement, and, following these decisions, which were approved by the Cabinet in its meeting on June 3, 1979, the area Commander of Judea and Samaria issued the Order of Possession in question. Lieutenant General Eitan, in his affidavit, elaborated on the important contribution of civilian settlements to the protection of the Jewish population, dating back to before the establishment of the state, as well as during the War of Independence. He discussed the security purposes that these settlements fulfill in terms of regional defense and in terms of the IDF’s organization, both in periods of calm and in times of emergency. With great emphasis, the Chief of the General Staff expressed his unequivocal opinion regarding the importance of regional defense, suggesting serious criticism of those who neglected regional defense, bringing it to an “all time low,” in his words, by the 1973 Yom Kippur war, when the military’s mindset still rested on the laurels of the victory in the Six Day War. However, “after the 1973 War, regional defense was restored to its greatness, which it was denied by hubris and fundamentally wrongful consideration as to its contribution.” Today, the regional defense communities are armed, fortified, and properly trained for their mission to protect the area where they live, and their location on the ground is determined with consideration for their contribution to controlling the area and assisting the IDF in its various missions. The Chief of the General Staff explained the unique importance attributed to a civilian settlement, as opposed to a military base, because in war time, the military units may leave the base for the purposes of executing mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings, in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. This is particularly pertinent when reserves are recruited in a time of war – and in this case, in a time of war on the eastern front. At such a time, the military units must move toward their designated locations, which are spread out. The import of controlling traffic arteries in order to ensure quick and uninterrupted movement, therefore grows. Nablus and its surroundings sit at an irreplaceable crossroad, rendering control of nearby roads especially important. Elon Moreh sits over a number of such roads; these are the Ramallah-Nablus road, the Nablus-Valley road through Jiftlik, and an additional road to the Valley through Aqraba and Majdal, which also runs close by to the south.

There is no doubt, and even the petitioners’ attorneys – Mr. Elias Khouri on behalf of petitioners 1-16 and the respected sirs A. Zichroni and A. Feldman for petitioner 17 – do not dispute, that Lieutenant General Eitan is absolutely sincere and deeply convinced of his positions, which are a matter of his professional expertise as the highly experienced military man that he is. But he does not conceal that there is dispute over his conclusion as to the crucial importance of building a civilian settlement on the site chosen for Elon Moreh. In paragraph 23(d) of his affidavit he says as follows:

“I am aware of the opinion of respondent no 2, who does not dispute the strategic significance of the relevant area, but believes that security needs may be met in ways other than a settlement at the relevant site.”

Respondent no. 2 is the Minister of Defense. An usual circumstance has arisen in which the respondents themselves hold diverging opinions on the subject matter of the petition, such that the Chief of the General Staff’s affidavit must be viewed as representing the opinions, both of the military authorities as well as of the Israeli Government, which decided this matter by a majority vote on an appeal submitted by the Deputy Prime Minister challenging a decision by a ministerial committee (the Deputy Prime Minister too, like the Minister of Defense, is a clear authority on military matters, having previously served as the second Chief of General Staff of the IDF). The petitioners were also permitted to submit additional expert opinions, one by Lieutenant General (Res.) Haim Bar-Lev, and the other by Major General (Res.) Mattityahu Peled. Lieutenant General (Res.) Bar-Lev expressed his professional assessment that Elon Moreh does not contribute to Israel’s security as it is unhelpful, both in combatting acts of terror and sabotage in times of calm, as well as in times of war on the eastern front, because a civilian settlement located on a hill about 2 kilometers from the Nablus-Jerusalem road cannot facilitate securing this traffic artery, and in any event there is a large military base located close to the road itself, which controls central traffic arteries to the south and to the east. In fact, according to Lieutenant General (Res.) Bar-Lev, hostile activity against the settlement during wartime, would necessitate the deployment of forces to secure the settlement, at the expense of engaging those forces in combat with enemy forces. The apparent response to these misgivings in Lieutenant General Eitan’s affidavit is that the primary significance of a civilian settlement on the relevant site is not for the purposes of combating hostile terrorist activity, and that this was not the Chief of the General Staff’s reason for taking possession of the site, but that the main importance may be revealed specifically during wartime, because, in war, the very  base that Lieutenant Bar-Lev speaks of would be vacated, and that there is no comparison between a civilian settlement that is currently integrated into the regional defense strategy and  the civilian settlements of the past, in terms of the quality of its ammunition, equipment and level of training. The opinion of Major General (Res.) M. Peled is detailed and his conclusion is that “the argument as to the security value attributed to the ‘Elon Moreh’ settlement is made in the absence of good faith and for one purpose alone – to justify taking possession of land that cannot be justified otherwise.” I did not find in Peled’s opinion any discussion of Lieutenant General Eitan’s primary reason, that is the role of a settlement located in the relevant area to safeguard the freedom of movement on nearby roads as reserves forces are spread along the eastern front during wartime. As for the opinion of Lieutenant General Bar-Lev and other military experts who share his position, I have no intention to insert myself between experts. It will suffice for me to say here, too, as we said in HCJ 258/79 (unpublished) as follows:

“In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.  Very convincing evidence is necessary in order to negate this assumption.”

 

And it was also said there that:

“In matters of professional military assessment, the Government would surely guide itself primarily by the counsel it receives from the Chief of the General Staff.”

Indeed, we mentioned there the “giver of the respondents’ affidavit,” whereas here the respondents are divided in their opinions. But as we have heard from Mr. Bach, the learned State Attorney, who argued on behalf of respondents 1-4, that despite his difference in opinion, the Minister of Defense accepted the decisions of the cabinet majority and – complying with his constitutional duties as the government-appointed supervisor of the military under section 2 of Basic Law: The Military – passed the Government’s decision on to the Chief of the General Staff for its implementation.

At the core of the discussion in this petition must stand a factual analysis, insofar as these facts have been uncovered by the evidence before us, in light of the law, and particularly in light of our ruling in the Beit El case. But before I turn to that, I must first complete the presentation of the facts themselves, as we have received additional factual material in the Chief of the General Staff’s written response to a questionnaire we drafted, after hearing the main oral arguments by the parties’ attorneys, in order that he respond to it, instead of to an oral cross examination that petitioners’ attorneys sought. The responses to the questionnaire and other documents that the learned State Attorney was permitted to submit shed additional light on the facts of the case, expanding and deepening our understanding and evaluation of these facts, beyond what was included in Lieutenant General Eitan’s affidavit and the first affidavit by Mr. Aryeh Naor, the Government Secretary, which mentioned decisions by the Ministerial Committee for National Security Affairs and by the Government in the Ministers’ Committee’s appeal. The following is the picture that is ultimately revealed:

1. On January 7, 1979, following an unlawful protest (“an unauthorized protest” as the Government secretary puts it in his affidavit) of people from “Gush Emunim” on a road in the Nablus area, the Ministerial Committee for National Security Affairs convened, resolving the following:
   
   1. The Government sees the “Elon Moreh” group as a candidate for settlement in the near future.
   2. The date and location of the settlement will be determined by the Government in accordance with appropriate considerations.
   3. When determining the site for the Elon Moreh settlement the Government will take into considerations, to the extent possible, the group’s wishes.
   4. The people of “Elon Moreh” must now return to the camp from which they came.
2. Following this resolution of the Ministerial Committee for National Security Affairs, representatives of the Ministerial Committee on Settlement Affairs conducted a preliminary tour of the area, in order to find a proper site for the “Elon Moreh” group to settle. Five alternative locations in the area were suggested, each submitted for examination by the IDF. The entities charged with the matter in the Judea and Samaria Area command and at the General Staff examined each of the proposed locations and decided, based on IDF considerations, that two of the suggested locations should be thoroughly explored. One of these locations was a site recommended by the Minister of Agriculture, who is the Chair of the Ministerial Committee on Settlement Affairs and a member of the Ministerial Committee for National Security Affairs. The second site is the site that was ultimately chosen by the IDF and is the subject of this petition (para. 2(d) of the Chief of the General Staff’s answers to the questionnaire.)

The Judea and Samaria Area command examined the possibility of finding some territory in the area that is not privately owned, but no such location was found (Ibid., para. 2(e)).

3. On April 11, 1979 (likely after the abovementioned preliminary tour and as a result thereof) the Chief of General Staff gave his approval that General Staff authorities charged with the matter take possession of the area for military purposes (Ibid, para. 2(b)).
4. In anticipation of a hearing that was to be held by the Ministerial Committee for National Security Affairs, the Chief of the General Staff was asked as to his opinion, and on May 3, 1979 he once more notified the above authorities at the General Staff, through his bureau chief, that in his view there is a military need for taking possession of the territory. (Ibid., loc. cit..)
5. The opinion of the Chief of the General staff was brought to the attention of the Ministerial Committee for National Security Affairs while it discussed the settlement in its session on May 8, 1979 (Ibid., loc. cit., and the first affidavit by the Government Secretary, para. 4.) In that session, the Ministerial Committee for National Security Affairs decided to support the Order of Possession for military necessities (first affidavit by the Government Secretary, para. 3(a)).
6. On May 30, 1979, the Ministerial Committee for National Security Affairs reaffirmed its decision from May 8, 1979 (Ibid, para. 3(b)).
7. The Deputy Prime Minister appealed the decision by the Ministerial Committee for National Security Affairs before the Government Cabinet and on June 3, 1979 the Cabinet rejected his appeal by a majority vote and upheld the decision of the Ministerial Committee.
8. On June 5, 1979 Brigadier General Ben Eliezer signed the Order of Possession, and on June 7, 1979 the settlers arrived on the site, assisted by the military, as recounted above.

Here, I will discuss two arguments by Mr. Zichroni on behalf of petitioner no. 17, in order to dispose of them before delving into the core matters of this petition. He argues that there was a constitutional flaw in the decision-making process in regards to the settlement, because under Basic Law: The Military, the Minister of Defense is the Chief of the General Staff’s superior, so his opinion on military matters is prioritized over the opinion of the Chief of the General Staff, as well as over the opinion of the Ministerial Committee for National Security Affairs and that of the Government itself, both of which operate under Basic Law: The Government. Consequently, the Government (or the Ministerial Committee for National Security Affairs) was unauthorized to decide contrary to the position of the Minister of Defense. This argument must be rejected. Indeed, the Minister of Defense is the supervisor of the military on behalf of the Government under section 2(b) of Basic Law: The Government, but the military is subordinate to the Government as a body, according to section 2(a) of that same Basic Law, and so the Chief of the General Staff is subject to the authority of the Government under section 3(b), though he directly answers to the Minister of Defense, as that same section provides. Therefore, as long as the Government has not decided on a particular matter, the Chief of the General Staff must follow the instructions of the Minister of Defense. However, once a matter was brought before the Government, a decision by the Government binds the Chief of the General Staff, as the Minister of Defense is but one of the members of the Government. As long as he remains a member of the Government he bears, together with his fellow ministers, joint responsibility for its decisions, including decisions made by a majority against his own opinion. Such  is also the case for decisions by ministerial committees appointed by the Government, either as a permanent committee or for a certain issue according to section 27 of Basic Law: The Government, because in the absence of an appeal to the Government, even were an appeal submitted and rejected, the fate of a decision by a ministerial committee is as the fate of a decision by the Government in its meeting, as provided by section 32(c) of the Government Operations Regulations.

The road is now open to discussing the main issue: whether it may be legally justifiable to build a civilian settlement on the relevant site, despite the taking of possession of private property for such purposes. In the Beit El case, we resolved a similar question in the affirmative, both under domestic, municipal Israeli law, as well as under customary international law, because we were persuaded that military needs required building the two civilian settlements in question, on the very sites where they were built. It is self-evident, and Mr. Bach also notified us that this was well explained during the meetings of the government, that this ruling does not constitute the Court’s endorsement of all takings of possession of private land for the purposes of civil settlement in Judea and Samaria, but that for each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

At the outset of this discussion stands now – unlike in the Beit El case – the argument by two settlers of the “Elon Moreh” site who are the members of the settlers’ council and who were permitted (Motion 568/79) to join this petition as respondents, since Justice Y. Cohen who decided the motion found them to have a material interest in the petition. In their affidavits and pleadings, these additional petitioners painted a broad picture, far beyond what was argued by the original respondents. In the affidavit given by Mr. Menachem Reuven Felix, it was explained that the members of the group settled in Elon Moreh because of the divine commandment to inherit the land given to our forefathers and that “the two elements therefore of our sovereignty and settlement are interlinked” and that “the act of settling the people of Israel in the land of Israel is the act of security that is most real, most efficient, and most true. But the settlement itself… does not stem from security purposes or physical needs but from the force of a calling and from the force of Israel’s return to its homeland.” And he later declares:

“Elon Moreh is located in the heart of hearts of the Land of Israel in the deepest sense of the word, indeed both geographically and strategically, but first and foremost it is the place where this land was first promised to our first forefather and it is the place where the first property of the father of our nation, which this Land – the Land of Israel – is his namesake, was acquired.

…

Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

And after citing Numbers, 33, 53: “And you shall take possession of the land and settle in it, for I have given you the land to possess”, he adds as follows:

“Whether some of the settlers of Elon Moreh will be incorporated into regional defense according to IDF plans, or not, settling the Land of Israel , which is the calling of the People of Israel and the State of Israel, is in any event in the safety, wellbeing, and in the best interest of the People and of the state.”

Regarding petitioners’ arguments, which are based on international law, including various international treaties, he has adopted an explanation received from his attorney, that international law bears no relevance because the conflict is an internal dispute between the People of Israel returning to their homeland and the Arab residents of the Land of Israel and that this is not an “occupied territory” or “held territory” but the heart of the Land of Israel, our right over which is undisputed, and second – because even factually and historically we are concerned with Judea and Samaria which were part of the British Mandate and were conquered by physical force by our neighbor to the east – an act of conquest and annexure never recognized by anyone (except for England and Pakistan.) This is the crux of the affidavit.

Even those who do not share the views of the giver of the affidavit and his cohort must respect their profound religious faith and the spirit of devotion that motivates them. But we who preside in a state committed to the rule of law, where religious law is applied only to the extent permitted by secular law, must apply the laws of the state. As to the  giver of the affidavit’s views regarding property rights in the land of Israel, I assume he does not mean to say that under Jewish law it is permissible to void the private property, for any reason, of anyone who is not of our religion. After all, our scriptures state explicitly that “the foreigner living among you will be as a citizen and you shall treat him as your own as you were foreigners in the land of Egypt” (Leviticus 19:34.) In the literature submitted to us by the other respondents, I found that the Chief Rabbi, I.Z. Hertz, of blessed memory, mentioned this verse when the British Government solicited his opinion on the draft of the language of the Balfour Declaration. In his response, he said that referencing the civil and religious rights of the non-Jewish communities in the Declaration’s draft was but a translation of that same fundamental principle from the Torah (Palestine Papers 1917-1922, Seeds of Conflicts (John Murray) p. 13). This was the authentic voice of Zionism, which insists upon the Jewish people’s right of return to its homeland that was also recognized by other nations, for instance in the preamble to the Mandate for Palestine, but never sought to strip the residents of the land, members of different peoples, of their civil rights.

This petition includes a compelling response to the argument which seeks to interpret the historical right guaranteed to the People of Israel in the Torah as violating property rights under private property law. After all, the legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander and this order is, by all accounts, directly grounded in the powers that international law grants a military commander in territories occupied by its forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to international humanitarian law. These tenets are found in Proclamation No. 1 published by the military commander on June 7, 1967 whereby on that day the IDF entered the area and assumed control and the establishment of security and order, as well as in Proclamation No. 2 from that day that establishes in its section 2 that:

“The law that applied in the area on June 6, 1967 will remain in effect, to the extent it does not conflict with this Proclamation or any other proclamation or order issued by me and with appropriate changes resulting from establishing the rule of the IDF in the area.”

Also, section 4 of that same proclamation should be mentioned, where the commander of the Judea and Samaria area declared:

“Movable and immovable property… that was owned or registered to the Jordanian Hashemite state or government or a department or agent thereof or any part thereof, located in the area, will be passed into my exclusive possession and will be managed by me.”

These proclamations are the legal basis for the military rule in Judea and Samaria, which still exists there to this day, without having been replaced by another form of rule. Mr. Rahamim Cohen, on behalf of the additional respondents (the people of the Gush Emunim group) directed our attention to the Jurisdiction and Powers Ordinance, 1948, which establishes in section 1 that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” Although the Minister of Defense did not issue a proclamation defining Judea and Samaria as occupied by the IDF for the purposes of this section, but – as Mr. R. Cohen says – the main point is that the Provisional State Council, as the sovereign legislature of the State of Israel, authorized the Minister of Defense to issue orders as to any part of the Land of Israel: this mere authorization is testament to the fact that the Provisional State Council as the legislature, saw the State of Israel as sovereign over the entire Land of Israel.

This is a forceful point, but it must be rejected. The fact of the matter is that the Minister of Defense did not issue an order based on his authority under section 1 of the above Ordinance in terms of the area of Judea and Samaria (and the Government of Israel did not even extend the law of the State of Israel onto that area, as it did in terms of East Jerusalem, in a decree based on section 11 of the Law and Administration Ordinance, 1948.) When addressing the legal foundations of Israeli rule over Judea and Samaria, we are concerned with the legal norms actually, and not merely potentially, in effect. The fundamental norms upon which Israeli rule in Judea and Samaria were in fact enacted were and are, as said, to this day, norms of military rule rather than the application of Israeli law, which involves Israeli sovereignty.

Here we must command again to memory, like in previous petitions that came before this court, an important argument that Israel expresses in the international arena. This argument is based on the fact that at the time that the IDF entered Judea and Samaria this area was not held by any sovereign whose possession of it received general international recognition. Mr. Rahamim Cohen reiterated this argument with much force. In the Beit El case I said (on page 127) the following:

“This petition does not require our consideration of this problem, and we therefore join this dispute here to that bundle of disputes which I discussed in HCJ 302/72, 306/72, Sheik Suleman Hsain Udah Abu Hilo v. the Government of Israel; Sheik Sabah Abud Ala Oud Al Salima v. the Government of Israel, IsrSC 27(2) 169, 179, 176, 177, 184, there on page 179 which remain open in this Court.”

I believe that in the petition before us, as well, that it can be resolved only according to the presumption at the basis of the Order of Possession. These presumptions indicate the bounds of the discussion for the additional respondents as well.

We therefore must examine the legal force of the relevant Order of Possession under international law from which the military commander who issued it derives his authority. In addition, we must examine whether the order was issued lawfully under Israeli law, because – as was in the Rafah Approach case (HCJ 302/72, p. 169 on p. 176) – we must assume here, too, that the authority for such review exists personally in regards to officials in a military administration who belong to the state’s executive branch as “people who fulfill public functions under law” and who are subject to the review of this Court under section 7(b)(2) of the CourtsLaw-1957. On the merits, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the powers granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. In the Beit El case, we conducted each examination – that according to domestic Israeli law and that according to international law –separately. I have already discussed above, according to the mentioned Basic Laws, the argument about the decision making process regarding the possession of the land, taken on the Governmental level. I can now conduct the primary discussion combining the two examinations together, as customary international law is, in any event, part of Israeli law to the extent it does not contradict domestic law (see, the Beit El case, at 129.).

Counsel for all the parties focused their arguments on comparing the matter before us to the facts of the Beit El case and to the ruling there, with one side seeking to reveal the similarities between the two, and the other side emphasizing the distinctions. Mr. Bach added to this and reiterated the non-justiciability claim that he made already in the Beit El case and that was already rejected there in no uncertain terms, in the words of my honorable colleague Justice Witkon (at the top of page 124):

“I was not impressed by this argument whatsoever… assuming – an assumption that indeed was not confirmed in this case – that one’s property was harmed or was completely denied to them, it is hard to believe that a court will wash its hands from that person because their rights may be subject to dispute in a political negotiation. This argument did not add weight to the respondents’ other arguments…”

For my part, I added that (on p. 128-29) although the special aspect of the case requiring interpreting section 49(6) of the Geneva Convention must be seen as non-justiciable, petitioners’ claim is generally justiciable before this court, as it involves property rights. Mr. Bach maintained his argument was misunderstood, because, in this opinion, the matter of justiciability is merely a function of the matter at hand, and the matter is on one hand bitterly controversial politically and on the other hand concerns undeveloped and rocky land at some distance from the Rujeib village itself. And he again quotes an article by Professor Jaffe published in in 74 Harvard Law Review, 1265, pp. 1302-1304.

The argument was well understood even at the time; repeating it does not add to its force. At the time, I excluded section 49(6) of the Geneva Convention from the discussion entirely, because as part of treaty-based international law, it is not binding law in an Israeli Court, but I joined the opinion of my honorable colleague as to the matter’s justiciability in terms of the Hague Regulations, because, as customary international law, they do indeed bind the military administration in Judea and Samaria. I will act similarly here and refrain from discussing the matter before us in terms of section 49(6) of the Geneva Convention. But concerning an individuals’ property rights, we cannot dismiss the matter with a claim of the right’s “relativity.” Under our legal system, the individual’s property right is of significant legal value which is protected by both civil and criminal law, and it does not matter, as far as a land owner’s entitlement to protect their property under law is concerned, whether the land is cultivated or rocky.

The principle of the protection of private property applies also in the laws of armed conflict, as expressed in Article 46 of the Hague Regulations. A military administration that wishes to infringe upon private property rights must demonstrate legal authority and cannot exempt itself from judicial oversite on the grounds of non-justiciability.  

For his part, Mr. Zichroni attempted to distinguish our ruling in the Beit El case, because there the court justified the civilian settlement with military needs tied to combating hostile terrorist activity in times of calm, whereas, here, the Chief of the General Staff emphasizes in this affidavit primarily the military need in a civilian settlement on the relevant site in case of actual war on the eastern front. But there is no basis for this distinction. The Beit El case, too, concerned the needs of regional defense designed to be integrated into the general system of defending the country specifically in times of war – and see the quote from Major General Orly there, at 125, as well as my comment at the top of page 131, that “the military’s powers at times of active war and at times of calm cannot  be strictly distinguished. Even if today there is quiet in the area near Beit El, it is best to take preventative measures.” My honorable colleague, Justice Ben Porat, said this with additional emphasis (Id, at 132-33.) And again in the Matityahu case, HCJ 258/79 (unpublished) on p. 4 of the opinion, we said that such matters cannot be viewed from a static perspective, ignoring what might happen in the future, whether as a result of hostile activity from outside or from within the occupied territory, and proper military planning must account, not just for existing dangers, but also for dangers that might be created as a result of dynamic developments in the area.

The question then circles back: Have respondents demonstrated sufficient legal authority to take possession of the petitioners’ lands? The Order of Possession was issued by a military commander and states at the outset that the Order was issued “under my authority as commander of the area and because I believe it to be required for military needs.” It should be recalled here that in this Order the area commander chose at the outset language that was less determinate than that used in the order given in the Beit El case. The Order of Possession stated that possession of the land where the Beit El base stands, and on whose outskirts the construction of a civilian settlement commenced only eight years later – was “imperatively and overwhelmingly demanded by military needs.” There, we justified the civilian settlement on the basis of Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation.” On page 130 I also referenced the words of Oppenheim who believes that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” I mentioned the British Manual of Military Law, which supports the temporary use of the privately owned land and buildings for the purposes of “military movements, quartering and the construction of defence positions.”

We also rejected (on page 130) the argument by Mr. Khouri that the phrase “for the needs of the army of occupation” includes only the immediate needs of the military itself, and noted (at the bottom of page 130) that the “primary role of the military in an occupied territory is to ‘ensure…public order and safety,’ as provided by Article 43 of the Hague Regulations. What is necessary for this end, is in any event necessary for the needs of the occupying military in terms of Article 52.” In a similar fashion. we might say here, too, that what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity. which may come from outside and from within, this, too, is necessary for military needs in terms of Article 52.

Thus far I concur with Mr. Bach that possession of privately owned land for the purposes of a civilian settlement is potentially justified under Article 52 of the Hague Regulations  – and we found no other source for this in international law. Under what circumstances? When it is proved, according to the facts of the case, that military needs were those which in practice brought upon the decision to build a civilian settlement at the relevant site. I reiterate that there can be no doubt that according to the professional view of Lieutenant General Eitan, building a civilian settlement at this location accords with the needs of regional defense, which has particular significance in ensuring the safety of the traffic arteries when military forces must disperse at times of war, but I have concluded that the Chief of the General Staff’s professional opinion would not, in itself, have led to the decision to build the settlement of Elon Moreh, but for further reason that was the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the government cabinet, that is – the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. As for the discussions in the Ministerial Committee and the cabinet, we could not investigate them through reviewing their minutes, but even without them we have sufficient indication in the evidence before us, that both the Ministerial Committee and the cabinet majority were determinatively influenced by reasons stemming from a Zionist worldview as to the settling of the entire Land of Israel. This worldview is clearly revealed from a notice by Mr. Bach on behalf of the Prime Minister during the Court’s hearing on September 14, 1979, in response to additional respondents’ affidavit in paragraph 6 of his affidavit, to which I called attention during the Court’s hearing on the previous day. I recorded Mr. Bach’s words verbatim, for their significance and the status of the person on whose behalf Mr. Bach spoke, as following:

“I spoke to the Prime Minister yesterday and he authorized me to state, after the matter was raised during yesterday’s session – that on many occasions, in Israel and abroad, the Prime Minister emphasizes the right of the People of Israel to settle in Judea and Samaria and this is not necessarily related to discussions taking place in the Ministerial Committee for National Security Affairs concerning national and state security , when what is up for discussion is a specific matter of taking possession of some site or another for security purposes. In the Prime Minister’s view, these matters are not in conflict, but they are still distinct. As for what was said about the Prime Minister’s intervention, this was in the form of raising the issue for discussion before the Ministerial Committee for National Security Affairs, of which the Prime Minister is the chair and where section 37(a) of the Government Operations Regulations, concerning deliberations of the Ministerial  Committee for National Security Affairs, mandates that the Prime Minister determines the topics on the agenda, by his initiative or at the request of Committee members. He took part of the discussion in the Committee and expressed his clear and unequivocal opinion there in favor of issuing an Order of Possession for the purposes of building that settlement. This, as noted, considering, inter alia, the opinion of the Chief of the General Staff.”

The view as to the People of Israel’s right, which is expressed in these words is based on the tenets of Zionist theory. But the question again before this court in this petition is whether this worldview does indeed justify the taking of private property in a territory that is subject to military administration. As I attempted to clarify, the answer depends on the correct interpretation of Article 52 of the Hague Regulations. I believe that the military needs discussed in this article cannot be construed to include, by any reasonable interpretation, national security needs in their broad sense, as I have just described them. I shall again bring the words of Oppenheim, id., in section 147, at 410:

“According to Article 52 of the Hague Regulations, requisitions may be made from municipalities as well as from inhabitants, but so far only as they are really necessary for the army of occupation. They must not be made in order to supply the belligerent’s general needs.”

Military needs for the purposes of Article 52 may therefore include the needs that the Chief of the General Staff discussed in his responding affidavit, that is the needs of regional defense and of securing traffic arteries to allow reserves forces to disperse uninterruptedly at time of war. At the meetings of the Ministerial Committee the resolution was undertaken “considering inter alia the opinion of the Chief of the General Staff,” in the language of Mr. Bach’s notice (emphasis added – M. L.). The decision of the Ministerial Committee from January 7, 1979 guarantees Gush Emunim that the time and location of the settlement would be decided by the cabinet “in accordance with appropriate considerations,” and that while determining the location for the settlement the government would consider, as much as possible, the wishes of the Elon Moreh group. I would not be mistaken were I to assume that what Mr. Bach said on behalf of the Prime Minister reflects the spirit of the discussion in the Ministerial Committee. I do not doubt that indeed the Chief of the General Staff’s position was among the other factors that the Committee considered. But I believe this to be insufficient in order uphold the decision under Article 52, and these are my reasons:

I.                When it comes to military needs, I would expect that military officials initiate the establishment of a settlement on a particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the political echelon for approval , should it find no political reasons barring it. The Chief of the General Staff’s affidavit of response does seem to indicate that this was the decision-making process. But from the more complete picture that emerged after the Chief of the General Staff responded to the questionnaire presented to him, as well as from the additional documents submitted by Mr. Bach, it was made clear that the process was inverted: the initiative came from the political echelons, which then reached out to the Chief of the General Staff for his professional opinion. The Chief of the General Staff then expressed a positive opinion, in accordance with the conception he has always held. This is entirely clear from the responses of the Chief of the General Staff to the questionnaire, in paragraph 2:

“1. To the best of my knowledge, the body that initiated the settlement in the Nablus area was the Ministerial Committee for National Security Affairs.

2. I did not approach the political echelons with a proposal to build the settlement in Elon Moreh.

…

3. There was no preexisting plan to build a civilian settlement on the relevant site approved by a competent military authority.”

It also became evident from one of the additional documents that on September 20, 1973 then GOC of the Central Command, Major General Rehavam Ze’evi submitted to the then Chief of the General Staff a detailed proposal for settlement in the occupied territories. The proposal said, in regard to agricultural settlements in Samaria, that it would be “difficult, because of a shortage of available land.” This teaches us that the prevailing view at the time was still that private property ought not be taken for the purposes of settlements. And indeed, Major General Orly argued in July 1978 in HCJ 321/78 (unpublished) (the Nabi Salah case) as follows:

“7. When identifying the location that would be settled near the village of Nabi Salah, those acting on respondents’ behalf were guided by the principle laid out by government policy not to take possession of private property for the purposes of settlement.”

In the petition before us we find something of a change in this position, as the first affidavit by the Government Secretary, in paragraph 5, addresses this matter as follows:

“In response to the petitioners’ claims… as to the Government policy in regard to taking possession of the lands:

1. I hereby clarify that the policy of the Government of Israel not to seize private lands, to the extent possible and consistent with security needs, still stands.
2. When the government believes that the security needs requires as such, it approves requisition of private land but instructs the military to exclude from the taken property, to the extent possible, cultivated land.”

As for Major Commander Ze’evi’s plan, it should be noted that his proposals did not gain the approval of any authorized military or civilian body. The plan did include a suggestion to establish a Jewish town in the Nablus area, but not on the site now chosen for the Elon Moreh settlement, though not far from it.

In paragraph 4 of his questionnaire answers, the Chief of the General Staff replies to the question:

“Did you approve a civilian settlement on the relevant site because you believed to begin with that it was necessary there for the purposes of regional defense or because you post facto found that, were a civilian settlement to be established on this site, it would integrate into the system of regional defense?”

With:

“I approved taking possession of the land in question in this petition for purposes of the settlement because this fit the military needs in this area, as I saw them to begin with, and it is consistent with my security approach as to the needs of security and protection of the State of Israel as explained in sections 9-20 of the main affidavit.”

But when the perception of the security needs did not initially bring upon the initiative to settle that same site, but, rather, approval only came retroactively, in response to the initiative of the political echelon – I do not believe that this passive approach indicates that from the beginning there was a military necessity to take private property in order to build a civilian settlement, under the terms of Article 52 of the Hague Regulations. This time, therefore, it was not proven that in building the civilian settlement the military preceded the act of settlement with thought and military planning, as we have said in the Beit El case (on page 126.)

II.              And more on the question of the military necessity: I cited above the language of the decision by the Ministerial Committee for National Security Affairs from its meeting on January 7, 1979, as it was quoted in the Government Secretary’s second affidavit. Recall that those deliberations followed a protest by Gush Emunim on a road in the Nablus area. The resolution stated that “when determining a site for the Elon Moreh settlement, the Government will consider, as much as possible, the wishes of the group,” and, as if as in exchange for this promise, the people of Elon More were required to return to the camp from which they came, that is to end their unlawful demonstration. I see this as clear proof that the pressure by Gush Emunim was what motivated the Ministerial  Committee to address the matter of a civilian settlement in the Nablus area in that meeting. Afterwards, the matter was passed to the Ministerial Committee for Settlement Affairs, in order that it send its representatives on a preliminary tour for the purposes of selecting potential locations for settlement by the “Elon Moreh” group in the Nablus area. These representatives selected five locations and, from among the five, the IDF approved the relevant site. It follows, that the IDF did not take part in selecting those five sites, but was given the opportunity to choose among five sites selected by the political level. This process does not comply with the language of Article 52, which in my opinion requires the advance identification of a particular tract of land, because that specific location is necessary for military needs. And as said, it is natural that the initiative for this would come from the military level that is familiar with military needs and plans them in advance with military forethought.

In this regard, Mr. Bach argued that the military must first consider whether there are candidates for a possible civilian settlement willing to go to the location where their settlement is required for military needs. I agree, but again, this is contingent upon military planning that was approved by a competent military authority that would first search for candidates to settle a particular site. Here the opposite occurred: first came the desire of the Elon Moreh people to settle as closely as possible to the city of Nablus, and only then, due to the pressure they exerted, came the approval by the political level to build the settlement on that site. The political consideration was, therefore, the dominant factor in the Ministerial Committee’s decision to establish a settlement on that location, though I believe that the Committee and the Government majority were persuaded that the settlement fulfills military needs as well, and I therefore accept the Chief of the General Staff’s statement that for his part he did not consider governmental or political factors, including the pressure by the people of Gush Emunim, when he prepared to submit his professional opinion to the political level. But the military consideration was subordinate to the primary, political decision to build the settlement. As such, it does not meet the strict demands of the Hague Regulations for preferring military needs over individual property rights. In other words, would the Government’s decision to build the settlement on that site have been made in the absence of pressure from the Gush Emunim people and ideological and political considerations? I have been persuaded that but for these, the decision would not have been made in the circumstances that existed when it was made.

I wish to add several words regarding dominant and subordinate reasons in state authority decision making. In HCJ 392/72, Emma Berger v. Haifa District Planning and Building Committee, IsrSC 29(2) 764, Justice I. Cohen mentioned the debate around the matter of plurality of purposes as it appears in the third edition of De Smith’s book, Judicial Review of Administrative Action, on page 287 onward. Of the five tests proposed there, Justice Cohen opted for the test of whether the wrongful consideration or purpose had a real impact on the authority’s decision. For my part, I am willing to adopt a test more lenient with the authority, as proposed there by De Smith (top of page 289), which is:

“What was the dominant purpose for which the power was exercised? If the actor pursues two or more purposes where only one is expressly or impliedly permitted, the legality of the act is determined by reference to the dominant purpose.”

(In footnote 74, below the line, the author presents examples from English case law where this principle has been applied).

What I explained at length above reveals which outcome this test’s application must bring in the circumstances of the case before us, when the initiative for the settlement did not come from the military level. Thus. I will quote the words of the author there, on page 291, which seem apt to our matter as well:

“… it is sometimes said that the law is concerned with purposes, but not with motives, this view is untenable in so far as motive and purpose share a common area of meaning. Both are capable of meaning a conscious desire to attain a specific end, or the end that is desired. In these senses an improper motive or purpose may, if it affects the quality of the act, have the effect of rendering invalid what is done.”

III.             And I have yet to address and additional reason that must bring the reversal of the decision to take possession of the petitioners’ land – a reason that stands independently, even without regard to the other reasons I have so far detailed. In the Beit El case a serious question was raised: how could a permanent settlement be founded on land that was possessed only for temporary use? There we accepted Mr. Bach’s reply:

“The civilian settlement may exist in that same location only so long as the IDF still holds the territory under the Order of Possession. This possession itself may end someday as a result of international negotiations that may be culminate in a new agreement that would be valid according to international law which will determine the fate of this settlement, as it would the fate of other settlements located in the occupied territories” (Id, p. 131.)

The settlers themselves did not express their own position in that case, as they were not joined as parties. This time we cannot accept this excuse. Here, the submitter of the affidavit on behalf of the settlers explicitly says in paragraph 6 of this affidavit:

“Supporting an Order for Possession with security considerations in their narrow technical sense, rather than their basic and comprehensive sense, as explained above, has but one meaning: the temporary nature of the settlement and the possibility of its being replaceable. We absolutely reject this terrifying conclusion. It also is inconsistent with the Government’s decision in regard to our settlement in this location. In all the discussions, and many assurances we have received from the ministers of the Government, and above all the Prime Minister himself – and the Order of Possession at hand was issued as a result of the Prime Minister’s personal intervention – they all see the settlement of Elon Moreh a Jewish settlement as permanent as Degania or Netanya.”

It should be noted that this paragraph includes two parts. Its first part considers the position of the settlers; the other part what they have heard from ministers. We were not asked to permit the submission of a countering affidavit by the Government or by any minister to rebut the words attributed to them in the second part of this paragraph and thus we must accept them as truthful. This indeed being the case, the decision to establish a permanent settlement that is intentionally designed to stand in its location for all time – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were in advance intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown. This is seemingly a contradiction that joins the other evidence before us in this petition to reveal that the decisive consideration that motivated the government to decide upon the relevant settlement was not the military consideration. In these circumstances, even a legal declaration as to the taking of possession alone, rather than expropriation of the property, cannot change the face of things – that is taking possession that is the core content of property, in perpetuity.

On the basis of all this, I believe the order nisi must be made absolute, in regard to the petitioners’ lands that were taken under Order n. 16/79.

Justice Asher

I agree.                       

Justice Ben Porat:

I agree.

Justice Witkon:

I too believe that the law is with the petitioners.

Like in the Beit El case (HCJ 606, 610/78,) here, too, we must examine the state authorities’ actions both in light of the “domestic” (or “municipal” as it is commonly termed in this context) law and in light of international law. These are two different issues, and as said in the Beit El case (id, p. 116): “The activity of a military rule in an occupied territory may be justified for military, security purposes and yet it is not out of the question that it is flawed under international law.” The domestic law which is subject to discussion here is the law that is relevant to two orders issued by the commander of the Judea and Samaria area under his powers as a commander in an occupied territory (Order n. 16/79 and Order n. 17/79.) In these Orders the commander stated that he “believes it necessary for military needs…” and he declared that taking possession of the lands is “for military needs.” And indeed, there is no dispute that the force of the orders, in terms of domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” We elaborated on the content of “the military need” and the extent of our intervention in the discretion of military authorities in Rafah Approach (HCJ 302/72, Abu Hilo v. The Government of Israel) and in the Beit El case. We emphasized and reiterated that the scope of our intervention is limited. In the Beit El case I said (ibid., page 118) that the authority “is vested in the hands of the military officials, and for the Court to intervene in the exercise of their authority, it must be satisfied that this exercise was an abuse of power and a pretext for other purposes.” Similarly, my honorable colleague the Deputy President wrote as follows, ibid., (p. 126):

“We have repeatedly emphasized before, including in HCJ 302/72 (pp. 177, 179, 184) that the scope of this Court’s intervention in the military considerations of the military administration are very narrow, and a Justice would certainly refrain from substituting his personal beliefs in terms of political and security matters for the military considerations of those charged with securing the State and public order in the occupied territory.”

We additionally clarified in the Beit El case that a military, security need and the establishment of a civilian settlement do not necessarily contradict one another. As we said there (p. 119):

“The main point is that in terms of the pure security consideration it is undisputed that the presence of settlements – even ‘civilian’ settlements – of citizens of the occupying power in the occupied territory significantly contributes to the security in that area and facilitates the military’s ability to perform its duty. One need not be an expert in military and security affairs to understand that hostile elements operate more easily in an area that is only populated by a population that is indifferent or sympathetic to the enemy rather than an area where there are also people who may monitor them and notify the authorities of any suspect activity. Terrorists may not find refuge, assistance or supplies with them. This is simple and needs no elaboration. We will only mention that according to the respondents’ affidavits, the settlers are subject to the military authority, whether officially or due to the circumstances. They are there thanks to the military and its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

It need not be emphasized that with everything we said in these two decisions (and in others like them) we did rule that from that point onwards, any civilian settlement in an occupied territory serves a military purpose. We held that each case must be examined according to its particular circumstances. There, we were persuaded that indeed the taking of possession in order to build a civilian settlement served a security purpose. Here I am not persuaded that such was the purpose.

How is this case different from those that came before? The most important difference, is that here, even the experts charged with state security are divided as to the need for settlement in the relevant location. As they did there, here too security authorities presented us with affidavits meant to persuade us as to the security and military needs for taking possession of the land and building a civilian settlement on it. But whereas there the evidence was consistent and unequivocal, here, in terms of Elon Moreh, the evidence reveals that the experts disagree amongst themselves on the military need. On behalf of the Petitioners, we received the affidavit by Major General (Res.) Mattityahu Peled, as well as the letter by Lieutenant General (Res.) Haim Bar Lev, which ought to be quoted in full:

“To the best of my professional estimation, Elon Moreh does not contribute to the security of the State of Israel, and this for the following reasons:

1. A civilian settlement located on a hill far removed from main traffic arteries has no significance in combating hostile terrorist activity. The mere location as an isolated island in the heart of an area densely populated by Arab residents may facilitate attempts to attack. Securing travel to and from Elon Moreh and securing the settlement itself would divert security forces from essential missions.
2. In a case of war on the eastern front, a civilian settlement located on a hill about two kilometers east of the Nablus--Jerusalem road would be unable to ease safeguarding this traffic artery. Moreover, there is a large military base located near the road itself, and it controls the traffic arteries to the south and to the east. Indeed, should there be terrorist activity at time of war, the IDF forces would need to stay in place in order to protect the civilian settlement, rather than focus on combating enemy armies.”

More than this, the petitioners stated in their petition that “according to what they learned from the media, respondent 2 (the Minister of Defense) stated there was no security or military need for the land.” Generally, we do not consider information given to us by rumor, but here is confirmation for the disputing position of the Minister of Defense from the giver of the affidavit himself – the Chief of the General Staff, Mr. Raphael Eitan – who said in section 23(d) of this affidavit:

“I am aware of the opinion of the respondent 2, who does not dispute the strategic importance of the relevant area, but believes that it is possible to realize these security needs by means other than building a settlement on the relevant site.”

This situation, of a dispute between the Minister of Defense and the Chief of the General Staff on the mere need of taking possession, is unprecedented in Israeli jurisprudence, and it is also difficult to find examples in foreign countries for where a judge was required to choose between the opinions of two experts – one being the minister charged with the relevant matter and the other being the person heading the executive mechanism. The State Attorney attempted to overcome this difficulty by relying on section 3(b) of Basic Law: The Military, which reads: “The Chief of the General Staff is subject to the authority of the Government and subordinate to the Minister of Defense.” It is true, argued the State Attorney, that the Chief of the General Staff answers to the Minister, but here the matter was subject to the Government’s decision, where the Minister of Defense was among the minority, and thus his disputing position is overruled by the majority, which accepted the opinion of the Chief of the General Staff. I fear this response by the State Attorney is beside the point. Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense, and the Chief of the General Staff. In terms of the hierarchy between them, there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. When the Chief of the General Staff receives an order from the Minister that conflicts with other orders he receives from the Government, it is possible – and I do not wish to express my opinion in this regard – that he would be obligated to follow the order of the Government over the orders of the Minister. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the Court. It is possible one (for instance, a judge) may withdraw his opinion in light of that of his peers, but the fact that the Minister accepted the decision of the majority does not lead to a conclusion that he withdrew his opinion. On the contrary, we must assume that he stands by his opinion and has left to us the duty to say which of the opinions – his or that of the Chief of the General Staff – should be accepted.

It is well known that courts are asked to determine matters that require special expertise – expertise that is generally beyond the judges’ grasp. We are presented with opinions by respected experts and these completely contradict one another. This happens frequently in trials concerning medical issues, as well as, for example, in cases involving patent infringements, which raise problems in chemistry, physics or other natural sciences. In security affairs, when the petitioner relies on the opinion of a security expert, while the respondent relies on the opinion of someone who is both an expert and responsible for the state of security in the country, it is only natural that we attribute special weight to the opinion of the latter. As the Deputy President Landau said in the Naalin case, HCJ 258/79 (unpublished): “In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.” According to this rule, I could possibly have seen myself obligated to prefer the opinion of Lieutenant General Eitan over the opinion of Lieutenant General (Ret.) Bar-Lev, though in terms of their expertise, I do not know who is preferable. But when the choice is between the Chief of the General Staff and the Minister of Defense, I believe this rule should not be applied. There is no way to say that one is charged with ensuring safety whereas the other is not. They are both responsible.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, we must ask ourselves: who bears the burden of proof? Must the petitioners satisfy us that the land was taken for non-military or security purposes, or shall we demand that the respondents – the military authorities – persuade us that this taking of possession was necessary for this purpose? I believe that the burden is upon the respondents. The law does not give the commander’s assertion that the taking of possession is required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. We need not be convinced of the sincerity of the consideration, but rather of its correctness (see the well-known dispute Liversidge v. Anderson (1942) A.C. 206; (1941) 3 All E.R. 338; (1942) 110 L.J.K.B. 724; 116 L.T. 1; 58 T.L.R. 35; 85 S.J. 439 (H.L.), and the article by R.F.V. Heuston, L.Q.R. 86, p. 22. And see also: Ridge v. Baldwin (1964) A.C. 40; (1963) 2 W.L.R. 935; 127 J.D. 295; 107 S.J. 313; (1963) 2 All E.R. 66; 61 L.G.R. 396; 79 L.Q.R.  487; 80 L.Q.R. 105; 127 J.P.J. 251; 234 L.T. 423; 37 A.L.J. 140; 113 L.J. 716; (1964) C.L.J. 83 (H.L.)). And in our law, the Kardush case, HCJ 241/60, Mansur Taufik Kardush v. The Registrar of Companies, IsrSC 15, 1151; and FH 16/61, Registrar of Companies v. Mansur Taufik Kardush, IsrSC 16, 1209. The law I presented at the outset conditions the legality of the possession on the existence of a military need. Obviously,  the Court must not allow a serious infringement of property rights unless it is satisfied that this is necessary for security purposes. The State Attorney himself did not claim he is exempt from the burden of persuasion and labored to present us with all of the materials. As said, had we only had before us the evidence on behalf of the respondents, or had the respondents’ experts disputed the petitioners’ experts, I may very well have given the respondents the benefit of the doubt. But here, as noted, we were told that the Minster of Defense, himself, is not persuaded that this possession was necessary. It is true that the office of a minister is a political office and there is no requirement that the minister himself be an expert in military matters. But here we have the dissenting opinion of a Minister of Defense, who, as a former head of the IDF Operations Directorate and former commander of the air force, himself is a prominent security expert. The State Attorney did not dispute this, either. Where such a minister is not persuaded, how can we – the judges – be expected to be persuaded? When he does not see a military need for building a settlement in this particular location, who am I to question him?

This is also the primary reason that brings me to distinguish this case from all the previous cases and to reach a conclusion different from that reached in those cases. This should be coupled with two more things, though of lesser importance. First, in the cases of Rafah Approach and Beit El, my point of departure was that the Israeli settlements, located on lands taken from their Arab owners, were necessary for the security forces in their daily combat against terrorists. “One need not be an expert in military and security matters,” I said in the Beit El case at 119, “in order to understand that terrorist elements operate more easily in a territory populated only by a population that is indifferent or sympathetic to the enemy, than in a territory where there are also people who may monitor them and notify the authorities of any suspect activity. There, terrorists shall not find refuge, assistance and supplies.” This time the Chief of the General Staff, Lieutenant General Eitan, explained to us that the main security benefit in building the settlement on this site is its integration into the system of regional defense in case of a “total” war. I went back to review the affidavit that Major General Tal submitted to us at the time for the Rafah Approach case, and indeed, there, only prevention of terrorist activity at times of calm was discussed. I similarly reviewed the affidavit of Major General Orly in the Beti El case, although I did find – after additional review of the affidavit – that he also spoke of regional defense needs. These considerations were expressed in the opinion of my colleague Justice Landau (there, p. 124). In any event, in that case, two possessed territories were discussed: one actually on potential terrorists’ path, and the other bordering an important military base (Beit El.) There can be no serious doubt that, in terms of their immense strategic value, these sites – and only they – could have fulfilled the designated security role and that they were irreplaceable. Here, on the other hand, I cannot say the matter is free of any doubt.

The third aspect in which the case before us is different than the previous cases is a result of the settlers’ affidavit. Recall that in the Beit El case the settlers were not joined as petitioners and that they were not given the opportunity to voice their arguments. We presumed that their presence in the area was wholly for the purposes of security and defending the homeland. In the words of my honorable colleague the Deputy President (id., p. 127): “… given that the majority of the military is reserves forces, it is well known that at the time of need the residents of peripheral civilian residential areas become, even in personal matters, subject to military command.” And I said (id., at 119): “… the settlers are subject to the military’s authority, whether officially or by virtue of the circumstances. They are there thanks to the military and by its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

This time we heard from the representatives of the settlers themselves, and it seems we must not ignore the heart of their argument. Let me emphasize: I do not wish to address recent events, which revealed the people of “Gush Emunim” (among which the settlers before us are counted) as people who do not accept the authority of the military and do not hesitate to express their resistance through violence. I do not wish to address these events because we do not have certified knowledge as to the level of the support for the actions of others in other locations by the settlers before us. Therefore, I did not come to question that were the settlers to be called upon for reserve duty, they would be subjected to the military’s authority, as would any soldier. Indeed, the words of the giver of the settlers’ affidavit raise a different question. He says, explicitly, that:

“Members of the Elon Moreh group and myself settled in Elon Moreh because we were ‘commanded to inherit the land given by God to our forefathers, Abraham, Isaac and Jacob and we shall not leave it to other nations or in desolation’ (the Rambam, Book of Commandments.) The two elements, therefore, of our forefathers and our settlement are interwoven with each other.”

He adds and says in that same affidavit:

“Though superficially it seems that there is no link between the motivations of the settlers and the Order of Possession, the truth is that the act of settling the Land of Israel by the People of Israel is actually the real and most efficient security activity. But settlement itself, as inferred from the previous section, is not the product of security reasons and physical needs, but of destiny and of the return of Israel to its homeland.”

It is true that the settlers do not rule out the security considerations but that these are, as they maintain, secondary and completely insignificant. They state in their affidavit:

“Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

Very strong words indeed. Needless to say, the settlers deserve praise for their candor that did not allow them to pretend or to conceal their true motives. But the question plagues me: these settlers, who openly declare that they came to settle Elon Moreh not out of security considerations, and whose contribution to security – to the extent it is positive – is but a byproduct, could it still be said of them, as I said in the Beit El case, that they are there thanks to the military and by its permission? Of course, one can act to benefit another without the latter’s knowledge or involvement, but a privilege or benefit that the beneficiary rejects wholeheartedly, can we enforce it upon him? And let it be clear: without any dispute over the words of my honorable colleague Justice Landau, for my part, I need not argue with the settlers over their religious or nationalist ideology. It is not our business to engage in political or ideological debates. But it is our duty to examine whether pure security considerations justify taking possession of land for the purposes of settling these settlers at that location, and it seems to me that in this context, it is important to know what the settlers’ position is. If they did not come, primarily, for security purposes, I am hard pressed to accept that this indeed is the purpose of their settlement.

It remains for me to briefly address another argument by the settlers. In their view, Judea and Samaria should not be considered to be an “occupied territory” subject to IDF rule, but as part of the State of Israel. They rely, first and foremost, on the historical destiny of the Land of Israel, and in addition, in terms of the law, they claim that when the land was conquered during the Six Day War there was no other sovereign that lawfully held this area. The claim is familiar from the writings of Professor Blum (3 Isr. L. Rev. 279, 293) and was also positively considered by Professor J. Stone (see No Peace No War in the Middle East, published in Australia in 1969). The settlers’ attorney also mentioned the fact that the Israeli legislature never defined the state’s borders and only stipulated in section 1 of the Jurisdiction and Powers Ordinance, 1948, that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” He also referenced the amendment to the Law and Administration Ordinance, 1967 (and see in this regard Professor A. Rubinstein, The Constitutional Law of the State of Israel, 1969, p. 46). The implication of this claim is twofold. If it concerns an act that occurs within the territories of the state, surely international law does not apply to it, but then military regulations and orders issued under such regulations are invalid in the area that is part of the state. The State Attorney replied correctly that if the settlers arrived at the site other than by force of the Order of Possession issued by the area commander, their entire presence there is without basis. After all, there was no dispossession under Israeli law here. This response is rooted in good law. Additionally, were there serious doubt as to the status of the relevant area, we would have been compelled to approach the Minister of Foreign Affairs and request an official document that defines the area’s status. This question is not “justiciable” and in such matters the Court must follow Government decisions.

This settles the issues of domestic, municipal law. Because in light of the material before us I am not persuaded that the taking of possession was justified under municipal law, I need not actually examine the legality of the taking of possession under international law as well. But lest my refraining from discussing this aspect be misunderstood, I shall add several comments. The issue is legally complex and warrants clarification. As said in the Beit El case, there is a distinction between customary international law and treaty-based international law. The former is part of the municipal law, whereas the latter is not, unless it has been ratified through national legislation. Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations, as did my honorable colleague, the Deputy President. Here, too, the test is the military need. If one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either. On the other hand, the Geneva Convention must be seen as part of treaty-based international law and therefore – under the approach common in common law countries as well as in our system – the injured party has no standing to approach the court of the country against whose government he wishes to raise claims and assert his rights. Such standing is given only to states that are parties to the Convention. Such litigation cannot be conducted in a state court but only in an international forum. Therefore, I said in the Rafah Approach case and reiterated in the Beit El case, any expression of opinion on our part as to the lawfulness of the civilian settlement under the Geneva Convention is merely a non-binding opinion, from which a judge would do well to refrain.

Any yet, here too, the State Attorney invites us to affirm to the authorities that under the Geneva Convention, as well, there is nothing wrong in granting the settlers possession of the land for the purposes of their settlement. As his argument goes, this is not inconsistent with the humanitarian provisions of this Convention that are acceptable to the State of Israel. Recall, we are concerned with Article 49(6) of the Geneva Convention, which prohibits the occupying nation from deporting or transferring parts of its civilian population into the occupied territory. It is a mistake to think (as I have recently read in one of the newspapers) that the Geneva Convention does not apply to Judea and Samaria. It does apply, though, as noted above, it is not “justiciable” in this Court. Nor would I say that the “humanitarian” provisions of the Convention address only protecting human life, health, liberty, or dignity, and not property. No one knows the value of land as we do. But the question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of section 49(6) of the Geneva Convention is not easy, and as far as we know, it has yet to be resolved in international case law. Therefore, I prefer, here too, not to settle this matter; moreover, in light of the conclusion I reached on the matter, both under domestic law and under customary international law (Article 52 of the Hague Convention), it requires no determination. But my refraining from determination must not be interpreted as support for either of the parties.

For these reasons – in addition to those detailed by my honorable colleague the Deputy President – I believe the order must be made absolute.

 

Justice Bechor:

I concur with the comprehensive opinion of my honorable colleague the Deputy President (Landau), which contains a thoughtful and persuasive response to some hesitations I had in the matter.

Both the military commander and the Government acted in this case by virtue of the powers international law grants to a military which, as a result of hostilities, occupies a territory that is not part of the state to which the law of the land applies (the municipal law). As my honorable colleague demonstrated, we must adjudicate this case according to the law that applies to the issue and that governed the actions of both the government and the military commander. It is not within our authority to consider policy questions or questions rooted in religious belief or a national and historical worldview. And this is a limit that we must not, and may not, exceed, whatever our personal beliefs and worldviews. The actual language of the Order issued by the military commander is rooted in the powers that international law grants a military that occupies a territory that is not – legally – part of the state’s territory. On this basis then the decision must be made.

My honorable colleague, Justice Witkon, in his opinion, extensively discussed the matter of the disagreement between the Chief of the General Staff and the Minister of Defense. In my opinion, this question, too, has been answered in the opinion of the Deputy President (Landau). In this matter, we must distinguish between the military commander’s decision, within his power under international law, and the power of the Minister of Defense and of the Government, under municipal law. When the discussion revolves around international law, the test is whether the military commander operated out of military reasons in order to ensure the military goal. This is a matter for the military commander, and, in this regard, the opinion of the ministerial level is insignificant, as the power under international law is granted to the military commander alone and not to the minister of defense or to the government. Where the military commander acted within his power, there is no flaw in the exercise of this power, even if the ministerial level, in this case the Minister of Defense, is of a different opinion. It is another situation entirely, when the broader question of the municipal law level arises. On this level, the opinion of the military command is the first port of call but is not the end all be all. On this level, as my colleagues said, the Chief of the General Staff is “subject to the authority of the Government and subordinate to the Minister of Defense”. It is true that the Minister of Defense holds a different opinion than the Chief of the General Staff in this matter, but on the policy level, even the opinion of the Minister of Defense is not the end all be all either, and – as reflected by the words of the Deputy President – the final word is that of the Government.

Had we reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, I would not be hard pressed to approve his action, though other opinions – even contradictory ones – exist and though even the opinion of the Minister of Defense differs. But, as the Deputy President demonstrated in his opinion, the action of the military commander in this case exceeded the limits of his powers under international law.

The Deputy President also addressed the question arising from the contradiction between taking possession of the land for military needs, which is temporary, and building a civilian settlement as a permanent settlement. It is well known that civilian settlement has always constituted an integral part of the system of regional defense, within a broader system of regional civil defense, and things to this effect were said also in HCJ 606+610/78, Beit El, and HCJ 258/79, Matityahu. We must distinguish here between two things. Integrating the civilian settlements in the system of regional defense began many years ago, even before the founding of the state, and continued after the state was founded within the state’s territory. In all this time, there has always been the premise that the civilian settlements were permanent settlements and this was of no legal flaw because the settlement followed the founding of the state in territory that was within the territory to which state law applied. Even in the time before the founding of the state the intention was always that such settlement would be permanent settlement on land owned by the settling institutions. Here, we are concerned with temporary possession, and thus the contradiction between it and creating permanent settlements. This question was made more poignant in this petition for the first time, perhaps primarily because respondents 5 and 6 were joined, and because of their clear position.

As noted, I join the opinion of the Deputy President (Landau).

 

It was decided to render the order nisi absolute and declare the Order of Possession n. 16/79 invalid in terms of the lands owned by the petitioners, whose registration details were brought in paragraph 2 of the petition, and to order the respondents 1-4 to vacate from the petitioners’ lands the civilian settlers who settled on them as well as any structure built upon them and any object brought to them. There is no place to issue any order in terms of the road lands taken under Order n. 17/79, as none of the petitioners hold any ownership rights for the road lands.

We grant respondents 1-4 30 days from today in order to comply with the permanent order.

Respondents 1-4 will pay petitioners 1-16 their expenses in this petition, at a total sum of 5,000 Israeli Pounds, and that same amount to petitioner 17. There is no order as to costs for respondents 5 and 6.

Given today, 1 Cheshvan 5740 (October 10, 1979).

                 

 

 

The Supreme Court sitting as a High Court of Justice

HCJ 8091/14

 

 

The Petitioners:           1.         HaMoked: Center for the Defense of the Individual

                                    2.         Bimkom – Planners for Planning Rights

                                    3.         B'Tselem – The Israeli Information Center for Human Rights

                                    4.         The Public Committee against Torture in Israel

                                    5.         Yesh Din – Volunteers for Human Rights Organization

                                    6.         Adalah – The Legal Center for Arab Minority Rights

                                    7.         Physicians for Human Rights

                                    8.         Shomrei Mishpat – Rabbis for Human Rights

 

v.

 

The Respondents:       1.         Minister of Defense

                                    2.         Commander of Military Forces in the West Bank

 

 

Petition for an order nisi

 

 

Hearing Date:              11 Kislev 5775 (December 3, 2014)

 

For the Petitioners:      Adv. Michael Sfard; Adv. Noa Amrami; Adv. Roni Pelli

 

For the Respondents:  Adv. Aner Hellman

 

 

Before: Justice E. Rubinstein, Justice E. Hayut, and Justice N. Sohlberg

 

Judgment

Justice E. Rubinstein:

1.         This Petition concerns the Respondents’ power to employ Regulation 119 of the Defense (Emergency) Regulations, 1945 (Regulation 119, or the Regulation) in a manner that permits the confiscation, demolition and sealing of the houses of persons suspected of involvement in hostile activity against the State of Israel (the Regulation was originally promulgated during the British Mandate). The Petitioners ask that this Court issue a declaratory order whereby the exercise of Regulation 119 in this manner and for such purposes is unlawful since, in their opinion, it is repugnant to international law and to Israeli constitutional and administrative law.

The Parties’ Arguments

2.         As aforesaid, this Petition focuses upon Regulation 119 (in its current language) which reads as follows:

A Military Commander may by order direct the forfeiture to the Government of Israel of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, detonated, exploded or otherwise discharged, or of any house, structure or land situated in any area, town, village, quarter or street, the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land. Where any house, structure or land has been forfeited by order of a Military Commander as above, the Defence Minister may at any time by order remit the forfeiture in whole or in part and thereupon, to the extent of such remission, the ownership of the house, structure or land and all interests or easements in or over the house, structure or land shall revest in the persons who would have been entitled to the same if the order of forfeiture had not been made and all charges on the house, structure or land shall revive for the benefit of the persons who would have been entitled thereto if the order of forfeiture had not been made.

3.         The Petitioners are eight organizations that act for the protection of human rights in Israel and in the Administered Territories. They do not dispute that the central arguments raised in this Petition regarding the lawfulness of the exercise of the said Regulation 119 have been raised and rejected in this Court in the past. However, they argue that this Court’s rulings in this regard were issued many years ago, in the context of only two judgments and with laconic reasoning – HCJ 434/79 Sahwil v. Commander of the Judea and Samaria Region, IsrSC 34 464 (hereinafter: the Sahwil case) and HCJ 897/86 Ramzi Hanna Jaber v. GOC Central Command et al. IsrSC 41(2) 522 (hereinafter: the Jaber case) – and it is time to revisit the normative justification which, at the time, grounded those judgments. It was further argued that since the time these issues were addressed, there have been significant developments in international law, including the establishment of the various war-crime tribunals throughout the world, and it is therefore necessary to revisit the various issues. Note that the vast majority of the Petitioners’ arguments concern the State’s authority to employ Regulation 119 in the Administered Territories, and not within the borders of the State of Israel.

4.         On the merits, it was primarily argued that Regulation 119 is subject to the provisions of international law, which prohibit the demolition of houses as constituting collective punishment and therefore, as aforesaid, the demolition of houses should not be permitted by virtue of the Regulation. The Petitioners’ arguments are supported by opinions of legal experts: Prof. Yuval Shani, Prof. Mordechai Kremnitzer, Prof. Orna Ben Naftali and Prof. Guy Harpaz.

5.         With respect to the normative hierarchy, it was argued that, contrary to this Court’s ruling in the Sahwil case and in the Jaber case, Regulation 119 is subject to the norms and prohibitions of international law. This is particularly so when it pertains to the application of the Regulation in the Administered Territories, inasmuch as the argument that domestic law, including Regulation 119, prevails over international law, is not applicable. It is argued that Regulation 119 constitutes foreign law that Israel “inherited” from the previous regime, and therefore the rationales for respecting domestic law, even when it conflicts with international law, do not apply. It was further argued in this context that in accordance with the presumption of compatibility,  which was adopted by our legal system as well, Regulation 119 ought to be interpreted, insofar as possible, in accordance with the provisions of international law, i.e., such that the demolition of houses by virtue thereof is impermissible as currently carried out.

6.         Regarding the provisions of international law, it was argued that there is a consensus in legal academia that the demolition of houses contravenes the customary international prohibition on collective punishment, both with respect to the prohibition on demolition of the property of a protected person without an operational need, and with regard to disproportionate use of force, and is therefore unlawful. This is especially so when the subject matter is the law of occupation which applies, so it is claimed, to the Administered Territories, even if the declared purpose of the Respondents in our case is solely deterrence. Thus – as argued – the question is not the underlying intention, but the result, i.e. the demolition of houses of innocent persons due to the activity of others who are related to them. The prohibition on collective punishment was initially established in Article 50 of the Annex to the Hague Convention: Regulations Respecting the Laws and Customs of War on Land, and is currently established in Article 33 of the Fourth Geneva Convention, which states as follows:

                        No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited [Geneva Convention Relative to the Protection of Civilians During War, 1949 Kitvei Amana 1, p. 559].

In addition, the Petitioners refer to the Red Cross Commentary of 1987 on Protocol I of 1977 to the Fourth Geneva Convention, which determines the following:

                        The concept of collective punishment must be understood in the broadcast sense: it covers not only legal sentences but sanctions and harassment of any sort, administrative, by police action or otherwise [Commentary on Additional Protocol I of 1977 to the Geneva Conventions of 1949, p. 874, para. 3055 (1987),       available at:

https://www.icrc.org/ihl/COM/470-750096?OpenDocument].

7.         In addition, it was argued that the Regulation also violates basic principles of Jewish law. In this context, the Petitioners refer to the affair of the destruction of the city of Sodom in the book of Genesis, in which Abraham says to God: “Far be it from You to do a thing such as this, to put to death the righteous with the wicked so that the righteous should be like the wicked. Far be it from You! Will the Judge of the entire earth not perform justice?” (Genesis 18:25); and to the affair of Korach, in which Moses and Aaron claim before God: “If one man sins, shall You be angry with the whole congregation?” (Numbers 16:22). Rashi comments there: “The Holy One, Blessed Be He said: You have spoken well. I know and will make known who sinned and who did not sin”.

8.         It was further argued that the demolition of houses is also forbidden by virtue of the prohibition on arbitrary destruction of property, which is established, inter alia, in Article 53 of the Fourth Geneva Convention, and which – it is argued –  is deemed part of customary international law:

                        Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Because the demolition of the houses cannot be said to amount to “military operations [where] such destruction is rendered absolutely necessary”, it was argued that Regulation 119 should not be interpreted as permitting such demolitions.

9.         The Petitioners also refer to the position of international criminal law on the issue. It is argued that although Israel has not ratified the Rome Statute of the International Criminal Court of 1998 (the “Rome Statute”), the war crimes defined therein amount to severe violations of humanitarian international law, and therefore, the provisions therein are binding on Israel. So for example, Article 8(2)(a)(4) of the Rome Statute prohibits extensive destruction of property not justified by military necessity, and accordingly, the International Criminal Tribunal for the former Yugoslavia – ICTY – ruled that such destruction is only permitted when “such destruction is made absolutely necessary by military operations” (The Prosecutor v. Blaskic, IT-95-14-T, par. 157 (2000)), which is not the case here, where the purpose of the destruction is, at most, deterrence.

10.       It was further argued that the exercise of Regulation 119 for the purpose of the demolition of houses violates the principle of proportionality in international law and Israeli law. This is the case since the harm caused to innocent civilians by the demolition of their houses is tremendous, while the benefit from the demolition of the houses – ostensibly deterrence – is not achieved. In this context, the Petitioners refer to a presentation assembled by a committee headed by Major General Ehud Shani, which examined the issue of house demolitions in the years 2004-2005. The presentation stated that the demolition of houses “intensifies the historic homelessness trauma” (Slide No. 14), and leads to “illegitimacy; absurdly” (Slide No. 27), and hence the conclusion – “the act is no longer legitimate and is borderline legal!!!” (Slide No. 28).

11.       Peripherally, it was argued that Regulation 119 is exercised in a discriminatory manner. This is the case since the Regulation has been exercised only against the Arab population, although Jewish terrorists have been caught in the past who were suspected, indicted or convicted of crimes no less severe that those of the Arabs. It was further claimed in this regard that the argument previously made by the security forces that deterrence is not necessary among the Jewish population but only among the Arab population, lacks factual foundation and should be rejected.

12.       Conversely, the State claims that the Petition ought to be summarily dismissed. First, it is argued that it is a theoretical, academic petition that is not based on a concrete case, which is sufficient for dismissal. Second, it is argued that all of the claims that are made by the Petitioners were raised and rejected in the past in this Court, the Petitioners in this case were even a party to some of these petitions, and there is no reason to reexamine the issue. The State further noted that the power to demolish houses by virtue of Regulation 119 was exercised only in isolated and particularly severe cases in the last decade, and recently, in view of the wave of terrorism in Jerusalem, the Commander of the Home Front Command issued six demolition orders for buildings in which terrorists who are residents of East Jerusalem lived. One order was carried out, while the case of five others is still pending before this Court in the context of separate petitions that were filed: HCJ 8066/14 and HCJ 8070/14 – the murderous terrorist attack at the synagogue in Har Nof, in which four persons were murdered and others injured; HCJ 8025/14 – a hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which two persons were murdered and others injured; HCJ 7823/14 – another hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which one person was murdered and others injured; HCJ 8024/14 – the stabbing of a person close to the Menachem Begin Heritage Center in Jerusalem, critically wounding him.

13.       On the merits, it was argued that this does not constitute collective punishment and harm to innocent persons. This is so because in many cases of denial of petitions concerning the exercise of Regulation 119 for the purpose of demolishing houses, the Court ruled that the petitioners had not acted in good faith, and were to a certain extent aware of the terrorist’s activity. It was further noted that, in any event, primary legislation prevails over general principles of international law, and therefore, it is not necessary to examine Regulation 119 under the provisions of customary international law. It was also noted that many petitions which pertain to Regulation 119 – including all of the individual petitions that are currently pending before this Court – contemplate the exercise of the Regulation vis-à-vis residents of the State of Israel, and therefore the claims pertaining to the applicability of the law of occupation in the Territories are irrelevant.

 

 

The Hearing before the Court

14.       In the hearing before us, counsel for the Petitioners emphasized their argument that even if the purpose underlying the demolition of the houses is deterrence, this does not mitigate the disproportionate harm to innocent persons as a result of the demolition. It was further argued, as aforesaid, that even if deterrence is achieved – which was not proven as argued by the State – international law prohibits collective punishment as a means of deterrence, and therefore the exercise of Regulation 119 for the aforesaid purpose is wrongful ab initio. It was further claimed that in contradiction to the claims in the State’s response, the issues at bar have not yet been thoroughly deliberated by this Court, and therefore it is proper that the issue be deliberated now, and before an expanded panel.

15.       Counsel for the State responded that it was only several months ago that this Court denied a similar petition which sought to revisit issues of international law, on the grounds that there was no reason to revisit arguments that were previously raised and rejected. As for the collective punishment argument, it was claimed that because the subject matter is that of demolishing the house in which the specific terrorist lived, we are not concerned with collective punishment, but only deterrence. On the merits, it was argued that in a conflict between international law and explicit Israeli law, Israeli law prevails, and therefore the power conferred on the military commander by virtue of Regulation 119 prevails over the customary international law on that issue. As for the discrimination argument, counsel for the State answered that, as aforesaid, we are dealing with deterrence, which is not necessary among the Jewish population, and therefore this is not discrimination but rather a relevant distinction.

Decision

16.       Undeniably, this Petition, by its nature, raises difficult questions. As I noted in the courtroom, it may be easier and more convenient to take the side of the Petitioners over that of the Respondents, and there are certain instances which unquestionably raise a moral dilemma. As I sit to write this judgement, I am like that Talmudic judge mentioned in Jewish law sources, the amora Rav, who said, as he set out to court (Babylonian Talmud, Sanhedrin 7b) “He goes out to perish at his own will” (meaning that should he err, he will be liable for the transgression); and it was further stated that “a judge must always see himself as if a sword rests between his thighs and hell is gaping beneath him”… (Babylonian Talmud, Yevamot 109b), and we judges are also subject to the warning to witnesses (Mishna, Sanhedrin 4:2) “and perhaps you will say, what have we to do with this trouble…”, which Rashi (Sanhedrin 37b) explains to mean “to become involved in this trouble, even for sake of the truth”. However, like the witness, we are under the obligation that: “he who fails to say it, shall bear his iniquity” (Leviticus 5:1), as interpreted by Rashi to mean: “you bear the duty and the liability for the transgression should you fail to speak of what you have witnessed”. This is also the task of the judge, who has no choice but to render judgment. In a similar case, (HCJ 6288/03 Sa’ada v. GOC Home Front Command, IsrSC 58(2) 289, 294 (2003) (hereinafter: the Sa’ada case), Justice Turkel stated that “the idea that the terrorist’s family members are to bear his transgression is morally burdensome... But the prospect that demolishing or sealing the house will prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be the victims of terrorist horror, more than it is appropriate to spare the house’s tenants. There is no avoiding this”.

            The problem is exacerbated by the fact that the Petition is supported by expert opinions, although the law does not require an expert opinion, while the position of the State mainly relies on threshold arguments. However, we shall note from the outset that we do not deem it necessary to reopen questions that were decided by this Court, even if the reasons provided did not satisfy the Petitioners, since similar claims were raised and dismissed but a few months ago in HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (hereinafter: the Awawdeh case); and in HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (hereinafter: the Qawasmeh case). We will address the matters concisely, and will first state that limited use should be made of Regulation 119, and indeed, it was not used for several years, also due to the recommendation of the aforesaid Shani Committee. However, it has been argued before us that the circumstances recently emerging – of merciless, repeated killings of innocent victims – require the utilization of the Regulation, and we shall address this matter. Furthermore, the issue should be viewed within the broad context of the war on terror of the State of Israel and the entire world. This war, “for many are the dead that it has felled, and numerous are all its victims (Proverbs 7:26), compels Israel and other nations to exercise measures that were never sought in the first place.

17.       We will begin with a review of the judicial history of Regulation 119 in this Court. It has been held that the purpose of Regulation 119 is deterrence and not punishment; its goal is to provide the military commander with tools for effective deterrence, a purpose the importance of which is undisputable in itself (see HCJ 698/85 Daghlas v. Military Commander of the Judea and Samaria Area, IsrSC 40(2) 42, 44 (1986) (hereinafter: the Daghlas case), HCJ 4772/91 Khizran et al. v. IDF Commander, IsrSC 46(2) 150 (1992), and see the dissenting opinion of Justice Cheshin; HCJ 8084/02 Abbasi et al. v. GOC Home Front Command, IsrSC 57(2) 55,60 (2003) (hereinafter: the Abbasi case); the Sa’ada case, paragraph 19; the Qawasmeh case, paragraph 23). As to the question of whether the demolition of a specific building will create effective deterrence, it was held that this Court does not step into the shoes of the security forces, which are vested with the discretion to determine which measure is effective and should be used for the purpose of achieving deterrence (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 653-654 (1997); HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command, paragraph 5 (2009) (hereinafter: the Hisham case); the Awawdeh case, paragraph 20; the Qawasmeh case, paragraph 25). The State’s response in the individual petitions was supported by an affidavit of the Home Front Commander, Major-General A. Eisenberg. It is important to bear in mind, as problematic as this matter may be, that demolitions were only recently approved in the Awawdeh case, and the Qawasmeh case.

18.       Moreover, the damage caused to the property of the inhabitants of the house, to the extent that they were not involved in the offence for which the demolition was prescribed, cannot be disputed. It was further held that although the Regulation’s validity is not subject to the provisions of Basic Law: Human Dignity and Liberty since they are deemed “law that was in force prior to the taking of effect of the Basic Law” (section 10 of the Basic Law), they are to be construed according to the Basic Law, and the power thereunder is to be exercised proportionately (HCJ 5510/92 Turkeman v. GOC Central Command, IsrSC 48(1) 217; the Abbasi case, at p. 59; the Sa’ada case, at pp. 291-292; the Hisham case, paragraph 5; the Awawdeh case, paragraph 17; the Qawasmeh case, paragraph 22). I wish to stress this issue forcefully, and will return to the matter below.

            As a consequence of this approach, the following criteria, inter alia, were prescribed, defining the boundaries of the authority of the military commander when seeking to exercise the power vested in him under Regulation 119, and ordering the demolition of the house of a suspect of terrorist acts:

The severity of the acts that are attributed to the suspect; the number and characteristics of the parties who may be harmed as a result of the exercise of the authority; the strength of the evidence and the scope of involvement, if any, of the other inhabitants of the house. The military commander is also required to examine whether the authority may be exercised only against that part of the house in which the suspect lived; whether the demolition may be executed without jeopardizing adjacent buildings, and whether it is sufficient to seal the house or parts thereof as a less injurious means as compared to demolition [the Qawasmeh case, paragraph 22 of the opinion of Justice Danziger; see also: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip (1992) (hereinafter: the Alamarin case); Salem v. Major General Ilan Biran, Commander of IDF Forces, IsrSC 50(1) 353, 359 (hereinafter: the Salem case); the Hisham case, paragraph 5].

            Indeed, according to the case law this is an open list, and the parameters are to be considered as a whole. In other words, the choice to demolish the entire house, in lieu of sealing a room or demolishing a certain part of the house, does not necessarily indicate that the measure that was chosen is disproportionate and justifies the intervention of this Court in the discretion granted, as aforesaid, to the security forces (the Abassi case, pp. 60-61; the Qawasmeh case, paragraph 7). Similarly, it is not necessary to show that the inhabitants of the house were aware of the suspect’s terrorist activity (the Alamarin case, paragraph 9; the Salem case, p. 359; the Hisham case, paragraph 7). As aforesaid, proportionality is examined, first and foremost, in relation to the severity of the act that is attributed to the suspect, from which the required degree of deterrence is derived, and I hereby stress and reiterate the aforesaid criteria, and the meticulous discretion required.

19.       It should be further noted that although this Petition primarily challenges the exercise of Regulation 119 in the Administered Territories, this Court has ruled that the Regulation applies to the residents of the Territories as well as to the residents of the State of Israel (the Hisham case, paragraph 5; the Abassi case, p. 60).

And now to the Petitioners’ arguments.

20.       I will begin by noting that the question of the authority to use Regulation 119 and the discretion as to the manner of its application, i.e. reasonableness, are to be distinguished. As shall be presented below, we shall see – with all due respect – that the authority exists, and that the main question is that of reasonableness and discretion. Referring to the comprehensive discussion held by the Major General Shani Committee at the time, in the previous decade – a Committee that included a senior jurist, the head of the IDF International Law Department – the major points of which are included in the presentation that was submitted, it reveals that use of such a measure is legal under both international and domestic law. As to reasonableness, it was found that “there is a consensus among intelligence agencies about the relation between the demolition of terrorists’ homes and deterrence. In view of the sensitivity, the Central Command conducts a balanced, orderly procedure with respect to the demolition of homes of terrorists… however, deterrence is to be weighed only as a part of the considerations” (from the Committee’s presentation, the emphasis appears in the original). It is noted, however, that according to international and domestic public tests, the act is no longer legitimate and is borderline legal. And yet, after a period of several years during which the Regulation was not used in Jerusalem (2008-2009), and for an even longer period in the Judea and Samaria Area (2005-2014) – see paragraph 23 of the opinion of the Deputy Chief Justice in the Awawdeh case – use of the Regulation has now been renewed due to the frequent and heinous events of intentional harm to innocent people in Jerusalem, murder and attempted murder, as specified above.

21.       As to the authority, the arguments themselves are not new, but have rather been concentrated together, and as noted by the State, some of them were already raised in the past by some or all of Petitioners. In a nutshell, we would note that from a “purely” legal perspective, the territory of the State of Israel and Jerusalem should be distinguished from the Judea and Samaria Area, a distinction which was not made in the Petition. Within the State of Israel itself, Regulation 119 constitutes, as aforesaid, the law – primary legislation – the validity of which is preserved under Section 10 of Basic Law: Human Dignity and Liberty, which treats of the preservation of laws. I would parenthetically note that the Defense (Emergency) Regulations, 1945 – originally promulgated under the British Mandate, as aforesaid, which was the object of the struggle of the Jewish community at the time – are not favored by Israeli jurists, and the replacement thereof was contemplated in the past, albeit not implemented, perhaps due to the chronic security situation and its hardships. However, this is not the place to deliberate the matter. On the merits, it is clear that the validity of the Regulation and the authority to use it within the State of Israel cannot be challenged. Nevertheless, our substantive judicial approach, as distinct from the formal analysis, does not distinguish between the use of the Regulation in Israeli territory and in the Judea and Samaria Area and the reasonableness thereof, and it has already been stated that where officials of an Israeli authority exercise powers in the Judea and Samaria Area, it is to be regarded as based on the same fundamental principles of Israeli law -- in the words of (then) Justice Barak: “Every Israeli soldier carries with him, in his backpack, the rules of customary international public law concerning the laws of war and the fundamental principles of Israeli administrative law” (HCJ 393/82 Jam'iat Iscan Al-Ma’almoun Al-Taounieh Al-Mahdudeh Al-Masauliyeh v. IDF Commander in the Judea and Samaria Area, IsrSc 37(4), 785, 810 (1983); and see also HCJ 591/88 Taha v. Minister of Defense, IsrSC 45(2) 45, 52 (1991)).

As for the application of international law, as far as the Judea and Samaria Area is concerned, and as the Petitioners have noted themselves, this Court has ruled in several cases that the provisions of Regulation 119 are compatible with the law that applies in the Administered Territories (the Sahvil case, paragraph 4; the Jaber case, pp. 525-526; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43(2) 529, 532-533 (1989) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-...). The authority vested in the military commander by virtue of Regulation 119, which he “inherited” from the administration that governed the region prior to Israeli rule, constitutes, after all, one of the tools available to him for the purpose of accomplishing his main duty, as directed by Article 43 of the Hague Regulations: “to take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. Further, as stated by Prof. Dinstein, “The choice of means deemed necessary to contend with the problems of control and security is left to the Occupying Power” (Yoram Dinstein The International Law of Belligerent Occupation, 93 (2009). It should be noted, that the author criticizes the demolition and sealing of houses in a considerable number of cases (e.g., at pp. 156 and 159). See also: Article 27 of Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949; J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian. Persons in Time of War, 207 (Geneva, 1958). And as stated by Stone in respect of such matters: “[i]t would thus be very strange indeed to hold that the occupant was forbidden to maintain the existing law when this was necessary for his security” (Julius Stone No Peace, No War in the Middle East, 15 (1969)).

22.       In addition, the 1949 Geneva Conventions, and the preceding 1907 Hague Regulations, were designed and signed at a period that is different to our own. The terrorism with which the world must contend, the State of Israel being no exception, presents complicated challenges since the terrorist organizations do not abide by these or other conventions (see, for example, Hans-Peter Gasser, Acts of Terror, ”Terrorism” and International Humanitarian Law, 847 International Review of the Red Cross, 547 (2002); Glenn M. Sulmasy, The Law of Armed Conflict in the Global War on Terror: International Lawyers fighting; the Last War, 19 Notre Dame J.L. Ethics & Pub. Pol'y 309, 311 (2005); The Battle of the 21^st Century – Democracy fighting Terror (Forum Iyun, Dan Meridor, Chairman, Haim Fass (ed.), , The Israel Democracy Institute, 5767-2006). The matter at bar should be considered within the context of the war on terrorism, which was recently referred to by the Pope as a “Piecemeal World War III” (September 2014). It seems that the cases depicted in the aforesaid individual petitions speak for themselves. Thus, the humanitarian provisions of the Hague Convention (IV), which were assumed by Israel despite the fact that it did not recognize the application of the Convention from a legal perspective (H. Adler, Laws of Occupation, R. Sabel, (ed.), International Law 590-591 (2010) (Hebrew); Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, M. Shamgar (ed.), Military Government in the Territories Administered by Israel 1967-1980 – The Legal Aspects, Volume I, 32 (1982) (Hebrew)), are to be construed in a manner that will preserve their spirit and realize their underlying purposes, while concurrently permitting the State of Israel to protect the security of its residents in the most basic sense of the word. As I have had occasion to state in the past:

                        The relationship between human rights issues and the security needs and challenges will remain on the agendas of Israeli society and the Israeli courts for years to come… The inherent tension between security and human rights issues will, therefore, persist. The Court will seek a balance between security and rights such that security is neither falsely used nor abandoned (E. Rubinstein, On Basic Law: Human Dignity and Liberty and the Security Establishment, 21 Iyunei Mishpat 21, 22 (5758) (Hebrew); see also, E. Rubinstein On Security and Human Rights at Times of Fighting Terrorism, 16 IDF Military Law Review, 765, 766-771 (5762-5763) (Hebrew), and E. Rubinstein, Paths of Governance and Law, 15-40 (5763-2003) (Hebrew); HCJ 1265/11 Public Committee Against Torture in Israel v. Attorney General, paragraphs 17-19 (2012)).

23.       Further, the Petitioners’ claim that any demolition whatsoever, no matter the size and independent of the specific circumstances, necessarily constitutes collective punishment that is prohibited, as aforesaid, under Section 33 of the Fourth Geneva Convention, cannot be accepted (see on this matter – E. Gross, The Struggle of Democracy against Terrorism - The Legal and Moral Aspects, 224 (5764-2004) (Hebrew) (hereinafter: Gross)). I will refrain from bringing examples of the brutal use of house demolition made by “civilized” nations, collectively and not individually, in the distant and near past; see examples in Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Y.J.I.L 1, 8 (1994). This also holds true for the prohibition on house demolition appearing, as aforesaid, in Article 53 of the Fourth Geneva Convention. That prohibition carves out certain cases, namely, it is not precluded under the Article where the action is necessary on military grounds. As stated by Gross in this regard, “military needs are to be understood at times of combat or armed activity. In that sense, systematic acts of terror that form part of a strategy or armed struggle meet such definition… demolition of a house to the end that it will not be used again for terror purposes… should be deemed a ‘military need’” (Gross, 227-228). The question is, as aforesaid, one of proportionality, and we already clarified that the disproportionate use of said authority by the military commander, which amounts to collective punishment that is prohibited under international law, is precluded (the Daghlas case, p. 44, paragraph 23, and see also see, the Awawdeh case, paragraph 16 and the references there).

24.       Moreover, as this Court has held, “The law of belligerent occupation… imposes conditions on the use of this authority [to maintain order and public life – E.R.]. This authority must be properly balanced against the rights, needs, and interests of the local population” HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, IsrSC 58(5) 807, para. 34 at p. 833, per President Barak (2004) [http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf] (the Beit Sourik case); and see also HCJ 10356/02 Haas v. IDF Commander in the West Bank, IsrSC 58(3) 443, 455-456 (2004) [http://versa.cardozo.yu.edu/opinions/hass-v-idf-commander-west-bank] (the Haas case); HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 506-507 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i... (the Mara’abe case); and Y. Dinstein, Legislative Authority in the Occupied Territories,” 2 Iyunei Mishpat 505, 507 (5732-5733) (Hebrew)). In addition, as stated above, the authority of the GOC Home Front Command and the military commander in the Judea and Samaria Area – and in the context of reasonableness, as distinct of the formal authority, every effort should be exerted so that there be no difference between Israel and the Judea and Samaria Area, even if the commander in the Judea and Samaria Area is bound by a different set of laws – should be interpreted according to the principle of proportionality, which applies by virtue of both international and Israeli law, and according to the criteria addressed above (the Beit Sourik case, pp. 840-841; the Haas case, pp. 460-461). As we know, one of the subtests in examining proportionality is that the means employed by the governmental authority rationally leads to the realization of the purpose of the legislation or action (the “rational connection test”). An additional subtest provides that if the means selected by the government disproportionately infringes the individual right relative to the benefit derived therefrom, it is deemed invalid (the “proportionality test stricto sensu”) (HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51(4) 1, 53-54 (1997) [http://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation]; the Mara’abe case, p. 507; A. Barak, Principled Constitutional Balancing and Proportionality: The Theoretical Aspect, Studies of the Jurisprudence of Aharon Barak, 39, 41-42 (5769) (Hebrew)). In the case at bar, house demolition under Regulation 119 may meet the proportionality test if an examination reveals that, in general, it is indeed effective and fulfils the purpose of deterrence, and moreover, that the damage suffered due to the house demolition does not disproportionately violate the right of the injured parties to their property relative to the effectiveness of deterrence. As noted, proportionality refers, in our opinion, also to the question of whether the means was exercised collectively – such as, God forbid, the demolition of an entire neighborhood, which is inconceivable in the context of Regulation 119 – relative to the demolition of the home of a proven terrorist, where the injury, which must not be taken lightly, is caused to the property of the inhabitants of house, but not to the property of others nor to human life. This holds true, as aforesaid, whether the authority is exercised within the State of Israel or the Administered Territories.

25.       As for the claim of discriminatory enforcement, Justice Danziger ruled in the Qawasmeh case that “the burden to present an adequate factual basis which can refute the presumption of administrative validity, lies with the party who argues that discriminatory or ‘selective’ enforcement is implemented. Even if the arguing party surmounted this hurdle, the authority can still show that the ostensibly selective enforcement is, in fact, based on pertinent considerations”. Against this backdrop, and as noted by Justice I. Zamir in HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 53(3) 289 (1999), “the burden to prove selective enforcement is particularly heavy” (ibid, paragraph 30; and see also M. Tamir, Selective Enforcement 397-399 (5767)). This holds true in the case at bar verbatim, and where the Petitioners have failed to meet that burden, their claim of discriminatory enforcement cannot be accepted.

26.       The Petitioners referred to Jewish law, as presented above. Indeed, in the Ghanimat case, Justice Cheshin quoted (p. 654-655) the words of the prophet Ezekiel (18:20), “the soul that sins, it shall perish. The son shall not bear the inequity of the father, neither shall the father bear the iniquity of the son; the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him”; and further quoted the principle (II Kings 14:6) “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin”. The Petitioners also refer to the story of the “Idolatrous City” (Deuteronomy 13:16-17), which contemplates the city’s destruction due to the worship of other gods, and the narrow interpretation given by the Sages (Babylonian Talmud, Sanhedrin 111a and 113a). However, we should bear in mind and stress: in substantial opposition to everything referenced by the Petitioners and by us herein, we are not concerned with killing, and we should make it absolutely clear that were killing being discussed, the act would be patently illegal. Our case involves the demolition or sealing of a house, which does indeed entail a financial loss for its residents, but cannot be compared to all of the aforesaid biblical examples, or to the actions taken by certain nations in our world. Thus, indeed, the question at bar is a difficult one, but it is far from the intensity discussed by the Torah and Prophets. (For related dilemmas, see also Rabbi Shaul Yisraeli, Acts of Retribution in Halacha, 3 Crossroads of Torah and State, 253 (5751-1991), in the chapter entitled Incidental Injury to Innocent People Incidental to Eradicating Gangs of Assassins” (p. 271) (Hebrew); and further see Izhak Englard, Law and Ethics in Jewish Tradition, 28 Dinei Yisrael 1 (5771); on the difficult dilemmas, see in particular pp. 54-60. The author quotes (at pp. 58-59) Rabbi Shlomo Zalman Pines (Russia-Switzerland, 20th century, regarding whom see: Rabbi Yechiel Yaacov Weinberg, Lifrakim (5763-2003), at p. 551, and especially pp. 559ff), Biblical and Talmudic Morality 191 (5737) (Hebrew), as follows: “But sometimes the decision among virtues rests with a man, and depends on the judgment of his mind and conscience.  A moral man who seeks his path stands at a crossroads of the paths of virtues. He hesitates, searches, explores and wonders which is the righteous path to be chosen? There are arguments supporting both sides, and the decision is difficult and fraught. Of such a man, a midrash (Baylonian Talmud, Mo’ed Katan 5a) expounds on the verse in Psalms [50:23]  ‘And to he who sets [ve-sam] a path I shall show the salvation of God’ as follows: ‘Read it not ve-sam [“sets”] but ve-sham [“appraises”], in other words: a person who appraises his paths and evaluates and assesses them in his mind and in the depths of his conscience, he shall be promised the salvation of God that his paths will be righteous and he will not stray from the path of virtue.” Rabbi Wienberg stresses the sanctity of life present in the teachings of Rabbi Pines – “human life is sacred – this is a great principle of Judaism. The value of life is greater than all other elements” (p. 561). Such words are applicable in the case at bar, together with the statement of Rabbi Aharon Lichtenstein (The War Ethics of Abraham, Har Ezion Yeshiva website, Lech-Lecha), that “we must continue to walk on the same path outlined by Abraham – to be sensitive to morality and justice, also at times of war and combat that are just and true on their own merits”.

27.       And after all of the foregoing, and looking to the future, as extensive as the discretion of the military commander may be, as we have explained above, I believe that the principle of proportionality does not allow us to continue to assume forever that choosing the drastic option of house demolition, or even of house sealing, achieves the desired purpose of deterrence, unless all of the data that properly confirms that hypothesis is presented to us for our review. We accept the premise that it is hard to assess this matter, and this Court has frequently addressed this problem (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 655 (1997); the Awawdeh case, paragraph 24; the Qawasmeh case, paragraph 25). However, as aforesaid, I believe that using means that have considerable consequences on a person’s property justifies an ongoing review of the question of whether or not it bears fruit, especially in view of the fact that claims have been raised in this regard even among IDF officials, and see, for example, the presentation of the Major General Shani Committee, which, on the one hand, presents a consensus among intelligence agencies regarding the benefits thereof, and on the other hand states, under the title “Major Insights” that “within the context of deterrence, the measure of demolition is ‘eroded’” (slide no. 20). Thus, I believe that State authorities must examine the measure and its utility from time to time,  including conducting follow-up research on the matter, and insofar as possible, should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of damage to parties who are not suspected nor accused (in this regard see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in A. Gil, Y. Tuval and I. Levy (supervised by M. Kremnitzer and Y. Shani), Exceptional Measures in the Struggle against Terrorism: Administrative Detention, House Demolitions, Deportation and “Assigned Residence” 189 (IDI, 5771) (Hebrew); A. Cohen and T. Mimran, Cost without Benefit in House Demolition Policy – Following HCJ 4597/14 Muhamed Hassan Halil Awawdeh v. West Bank Military Commander, 31 Mivzakei He’arot Pesika 5, 21-24 (website of the College of Management Academic Studies, September 2014) (Hebrew)), and conversely, see the sources collected by my colleague Justice Noam Sohlberg in his opinion, some of which refer to situations encountered by other nations faced with the terrorist chaos that has befallen the world. In my opinion, the requested effort would be appropriate in order to meet the basic requirements of  Basic Law: Human Dignity and Liberty, the importance of which in the Israeli democratic system requires no elaboration. We are not setting hard-and-fast rules as to the nature of the research and the data required. That will be clarified, to the extent necessary, at the appropriate time. At present, of course, the engineering issue should be thoroughly examined in respect of each specific demolition or sealing, in order to ensure that the goal is achieved within its boundaries, and without deviation.

28.       Subject to Paragraph 27, we cannot grant the Petition.

 

Justice Noam Sohlberg:

1. I concur in the judgement of my colleague Justice E. Rubinstein – little holding much. I shall add several incidental comments.
2.  The Petitioners have challenged Regulation 119. Indeed, the power of the military commander thereunder is tremendous – to confiscate and demolish. We are concerned with draconian authority. The Petitioners attacked it as such, and against that backdrop, the harsh criticism is understandable and reasonable. The criticism further intensifies through the presentation of the extreme sanction as punitive, and as amounting to collective punishment. Indeed, the injury to a family member – who has not sinned nor transgressed – when he loses his home and shelter, contrary to first principles, is burdensome.
3. The state of affairs is sufficiently bleak and onerous as described by my colleague Justice E. Rubinstein, but the manner in which it was presented in the Petition is too extreme. I shall explain. The Regulation, as written, does not reflect the actual situation on the ground. First, in a number of judgements, this Court has outlined criteria for the implementation of the Regulation, and has restricted and reduced the scope of its application. Second, in practice, the military command currently exercises moderation, restraint and control in implementing the authority. The Petitioners claim that “house demolitions under Regulation 119 have accompanied the Israeli occupation since its very beginning” (Section 22 of the Petition), and according to them, “the authority has caused hundreds of families and thousands of people to lose their homes, due to the deeds of the individual” (section 221 of the Petition). However, according to the Respondents, in the last decade, since 2005, the military commander has exercised the contemplated authority only several times: in 2008-2009, following a wave of terror in Jerusalem, the authority was exercised twice against residential buildings in East Jerusalem. A third use of Regulation 119 at that time was ultimately not realized. In the summer of 2014, the authority under Regulation 119 was exercised against four buildings (the home of the assassin of Police Commander Baruch Mizrahi OBM, and the homes of the three cell-members who abducted and murdered the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM). A considerable deterioration in the security situation required this. Now we are discussing 5 orders against buildings inhabited by terrorists residing in East Jerusalem, who were the instigators of horrendous terror attacks in the context of the recent wave of terror. An additional order has been implemented. Thus, a small number of cases is concerned, and we are not dealing with “collective punishment” as shall be further elaborated below, although, of course, every home holds the story and strife of its dwellers.
4. Hence, the focus herein is not the formal envelope of Regulation 119, nor its broad language, or factual data from the distant past, but the narrow interpretation of the Regulation and its actual implementation in a small number of cases, in the course of a serious wave of terror. Furthermore, the following should be recalled and noted to disabuse those who may wonder or be confused: we are concerned with deterrence, and not punishment. The classification of the demolition of a family home as “punishment” or “deterrence” indeed makes no difference when it comes to the outcome suffered by the members of that family. The outcome is the anguish involved in losing one’s home and shelter. However, we have been convinced that when the criteria set forth in law and case law are met, it is an inevitable necessity. The mere injury to the members of the terrorist’s family does not render a house demolition illegal, even according to the rules of international law, as demonstrated by my colleague. Indeed, in criminal punishment, as distinct from deterrence under Regulation 119, the focus is on the person convicted of the crime, and not his family members. However, as I stated in the Qawasmeh case referenced above – “even in criminal proceedings the purpose of which is punitive… innocent family members are injured. The imprisonment of a person for a criminal offense committed by him, necessarily injures his spouse, children and other relatives, both in terms of their physical needs and emotionally. There is no need to elaborate on the deprivations arising from a person's incarceration, which are suffered by his family members”. The language of the Regulation explicitly testifies to the deterrent purpose underlying the confiscation and demolition or sealing of a residential home. This inherently involves an injury to innocent parties. Otherwise, how can deterrence from suicide attacks and the like be achieved? These are the bitter fruit of murderous terrorism, and we are obligated to promote deterrence against horrendous acts of the kind described in the individual petitions, even at the cost of injuring the terrorists’ families. And note, the matter involves property damage and not bodily injury. While house demolition is placed on one side of the scales, the other weighs the saving of lives.
5. The Petitioners deny the deterrent benefit of Regulation 119. However, such claim was repeatedly dismissed in case law: “…A study that can conclusively show just how many terrorist attacks have been prevented and how many lives have been saved as a result of house sealing and demolitions has never been nor could be conducted. However, as far as I am concerned, it is sufficient that we cannot rule out the view that this measure has some deterrent effect to prevent me from intervening in the discretion of the Military Commander” (per Justice E, Goldberg in HCJ 2006/97 Ghanimat v. OC Central Command, (March 30, 1997); see also HCJ 6288/03 Sa’ada v. GOC Home Front Command (November 27, 2003)).
6. Researchers who have recently addressed the issue have described the methodological difficulties encountered in measuring the influence of deterrent steps against terror. Wilner notes (in reliance on Richard Ned Lebow and Janice Gross Stein, Deterrence: The Elusive Dependent Variable, 42(3) World Politics 336 (1990)) that successes of deterrent acts leave few, if any, “behavioral tracks”. It is hard to prove that the deterring party had influence on an event that did not occur (Alex S. Wilner, Deterring the Undeterrable: Coercion, Denial, and Delegitimization in Counterterrorism, 34(1) Journal of Strategic Studies 3 (2011)). Nevertheless, the existing empirical research, specific indications from past experience, together with new research in the field of the psychology of terrorism and the theory of deterrence, cumulatively and satisfactorily support the deterrent potential of the demolition of terrorists’ homes.
7. Benmelech, Berrebi and Klor empirically examined whether house demolition is an effective tactic in counterterrorism. Data about house demolitions were crosschecked with data about suicide attacks during the Second Intifada. It was found that the demolition of houses of suicide bombers and of other parties involved in terrorist attacks led to an immediate and substantial decrease in the number of suicide attacks by terrorists residing in the area of the demolition. However, it was found that the deterrent effect was short lived, the influence fading within a month, and that it was limited to the geographic area of the demolition. The researchers’ hypothesis is that, in addition to house demolition, the security forces implement additional counterterrorism measures, and it is possible that the latter may be responsible for the waning of the deterrence. Their conclusion is unambiguous:

The results indicate that, when targeted correctly, counterterrorism measures such as house demolitions provide the desired deterrent effect… (Efraim Benmelech, Claude Berrebi and Esteban Klor, Counter-Suicide-Terrorism: Evidence from House Demolitions, NBER Working Paper Series, available at: http://www.nber.org/papers/w16493 (2010)).

8. The empirical findings are supported by data obtained from people in the field regarding the states of mind, or efforts of relatives to implore family members to refrain from involvement in terrorism that will endanger their homes (see for example: Doron Almog, Cumulative Deterrence and the War on Terrorism, 34(4) Parameters 5 (2004/5). Such pin-pointed data reveal that the deterrence permeates into the awareness of the target population. Similar statements were made by the Respondents’ counsel during the Petition’s hearing, in response to my question.
9. Current insights in the field of the terror-deterrence theory should also be considered. Rascoff proposes a multi-layered approach to counterterrorism (layering), from two perspectives – an interaction among various measures and the accumulation thereof. In his words:

… there is the possibility of synchronic layering, in which various instruments of power operating in concert may "exceed an adversary's threshold for deterrence.”…Synchronic layering argues for measuring deterrence's effectiveness in the context of a complex system… Second, diachronic layering (sometimes referred to as "cumulative deterrence") argues that the overall benefit conferred by a sustained deterrence posture may exceed the sum of interventions taken over time (Samuel J. Rascoff,., Counterterrorism and New Deterrence, 89 N.Y.U. L. Rev. 830, 840 (2014)).

            It emerges from the foregoing, that, in the case at bar, an attempt to isolate and assess the deterrence achieved through a certain measure – house demolition – on its merits, could lead to an erroneous conclusion. It is possible that taken cumulatively, together with additional coordinated steps, house demolition will make that certain contribution that may sometimes be crucial to the manner by which terrorist organizations conduct themselves, even if on its own it is insufficient.

10. Research in the field of the psychology of terrorism thoroughly analyzes statements made by terrorists, alongside the mode of conduct undertaken by terrorist organizations. It was found, that terrorist organizations, including those characterized by religious extremism, respond to rational, utilitarian reasoning. Thus, they can be deterred through measures that influence the cost-benefit considerations of the terrorist action. The centrality of family in the eyes of those involved in terrorism clearly emerges from such studies, supporting the deterrent value inhering in the demolition of terrorists’ homes. This is Wilner’s take on the matter:

… post- 9/11 deterrence skepticism is misplaced. While it is true that deterring terrorism will be more difficult to do than deterring the Soviet Union, targeting what terrorists value, desire, and believe will influence the type and ferocity of the violence they organize (ibid, at p. 31, emphasis added, and also see pp. 7, 13-14; For additional material on the “rational” conduct of terrorists see: Jocelyn J. Belanger, Keren Sharvit, Julie Caouette and Michelle Dugas, The Psychology of Martyrdom: Making the Ultimate Sacrifice in the Name of a Cause, 58(7) Journal of Conflict Resolution 494, 496 (2014)).

11. Perry and Hasisi show in greater detail that despite propaganda-directed declarations, which seek to present suicide attacks as deriving from altruistic motivations, they are mainly the result of a “rational” choice. That choice is founded, on the one hand, on the expected costs, and on the other hand on the expectation of reward (personal, religious and social). The terrorist organizations put an emphasis on promises pertaining to the expected improvement in the situation of the terrorist’s family members after his suicide:

…The martyr's family's status upgrade…both socially and monetarily. …Financial reward can be given to the family by rebuilding their homes. …or in direct sums of money… at least 60… martyrs… whose families, in exchange for the martyr's death, were given new homes adorned with the martyr's picture and name…. The recruiting terror groups embellish this incentive, reassuring the suicide bombers that “their families will be better taken care of in their absence”. …It is often this familial assistance alone that drives the suicide bomber to commit an attack… (Simon Perry and Badi Hasisi, Rational Choice Rewards and the Jihadist Suicide Bomber, 27 Terrorism and Political Violence 53, 55, 61, 65-66 (2015)).

12. Suicide bombers have stressed, in their recorded farewells from this world, the benefits that their families will be awarded, as a certain compensation for their departure, and even described the extent to which the thought of the good that will come to their families was on their minds virtually up to the act itself (ibid). In putting special emphasis on the house of the terrorist’s family, the terrorist organizations themselves mark the “soft underbelly” in which deterrence may be effective.
13. From the aforesaid it emerges that the demolition of terrorists’ homes will add the knowledge that his relatives will pay the price for his actions to the cost-benefit calculation made by a potential terrorist. This aspect of deterrence was referred to by Justice S. Netanyahu in HCJ 4772/91 Hizran et al. v. Commander of IDF Forces in the Judea and Samaria Area, IsrSC 46(2) 150, 155, as follows: “… I do not ignore the fact that the demolition of entire buildings will injure not only the Petitioners themselves but also their family members. But this is the result of the necessity to deter the many, such that they will see and know that their despicable acts not only harm individuals, risk public safety and inflict severe punishment upon themselves, but that they also cause grief to their families…”.
14. However, deterrence is not only intended to directly influence the state of mind of the terrorist, but also to dissuade him from his actions through the intervention of his family. Familial influence is a well-known factor in the literature (Emanuel Gross, The Struggle of Democracy against Suicide Terrorism – Is the Free World Equipped with Moral and Legal Answers for this Struggle? Dalia Dorner Book, 219, 246 (2009) (Hebrew)): “In the traditional Palestinian society, family takes a central place in the life of the suicide bomber, making a decisive contribution to the shaping of his personality and the extent of his willingness to sacrifice his own life in the name of his religion or for his people…”. Gross provides examples and points out that family support, and its public displays, serve the terrorist organizations “in widening the circle of the organization’s supporters within Palestinian society, thus increasing its ability to recruit additional suicide bombers in the future” (and see: Emily Camins, War against Terrorism: Fighting the Military Battle, Losing the Psychological War, 15 Current Issues Crim. Just. 95, 101 (2003-2004)). The familial factor as a terrorism enhancer needs to be defused, and the family must be given incentives to act to minimize terrorism. Fear of the demolition of its home should encourage the family of the potential terrorist to influence him in the desired direction, and dissuade it from providing him a tight circle of support, thus discouraging him from joining or carrying out terrorist attacks. Thus, deterrence contributes, even if to a small extent. Such a small extent, in the circumstances of time and place, may sometimes be the decisive factor, for better or worse.
15. The Petitioners’ claim of discrimination between Palestinians and Jews in the implementation of Regulation 119 is unfounded. The reason that Regulation 119 has not been used against Jews stems from the fact that there is no need for such environmental deterrence within the Jewish sector. We do not deny that there are assaults initiated by Jews against Arabs. Indeed, criminal law should be enforced to its fullest extent, and appropriate punishment should be inflicted. Tragically, we have even reached the point of the heinous murder of Mohamed Abu Khdeir. But the differences exceed the similarities. The gap is huge in the nature and quantity of attacks, and primarily, for the purpose of the case at bar, in the manner by which it is treated by society: a firm, unambiguous, wall-to-wall denunciation by the Jewish sector, which is unmet by a similar stride on the other side, and there is no need to further elaborate on the matter.
16. The Plaintiffs have dedicated a chapter in their Petition to the subject of  “The Prohibition on Collective Punishment in Jewish Law”, and appropriately so. This is a difficult, fundamental matter of values and morality, and it should be discussed in light of the values of the State of Israel as a Jewish and democratic state. Initially, the Petitioners quoted the words of Abraham, who stood firmly before God and categorically argued against the collective obliteration of Sodom and Gomorrah, including “all those living in the cities, and also the vegetation in the land” (Genesis 19:25):

Then Abraham approached and said will you sweep away the righteous with the wicked? ... Far be it from you to do such a thing to kill the righteous with the wicked, treating the righteous and the wicked alike, far be it from you! Will not the judge of all the earth do right? (ibid. 18:23-25).

Abraham began his negotiation with “the judge of all the earth” with fifty righteous people, and ended with ten. If such number of men be found, God promised Abraham not to destroy the city: “For the sake of ten, I will not destroy it” (ibid. 18:32). Abraham did not ask for less than ten. He may have reasoned that this is the watershed – a minyan of righteous people – and not less; a matter of proportionality (see the interpretations of Rashi and Or Hachayim ad loc. (verses 32-33)).

17. However, this collective punishment embodied in the destruction of Sodom is to be viewed as distinct of its pecuniary outcomes. As recalled, Lot was spared such punishment, but “left with his hands over his head and did not rescue any of his assets” (Jerusalem Talmud, Sanhedrin 10, 8).
18. The Petitioners also referred to the story of Korach: “O God, the God who gives breath to all living things, will you be angry with the entire assembly when only one man sins?” (Numbers 16:22) etc. In this context it is appropriate that we repeat the words of Justice M. Cheshin, which were also referenced by the Petitioners, regarding the basic principle in Jewish Law, whereby “every man must pay for his own crimes”:

On many occasions, I have pointed out the difficulties inherent in exercising the powers granted by Regulation 119 of the Defence Regulations… I rooted myself in a basic legal principle, and from it I will not be swayed. This is the basic principle that our people have always recognized and reiterated: every man must pay for his own crimes. In the words of the Prophet: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him (Ezekiel 18:20). One should punish only after caution is provided, and one should strike the sinner alone. This is the Jewish way as prescribed in the Law of Moses: “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin (II Kings 14:6) [HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 654-655 (1997); and also see: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip, IsrSC 46(3) 693 (1992)].

19. These are fundamental maxims, the law of nature – a value that is both democratic and Jewish. Rabbi Samson Raphael Hirsch accurately interpreted this principle of natural justice as follows:

Our scripture is not aimed at preventing the legal abomination whereby a court will punish sons for the crimes of their fathers… inasmuch as it is inconceivable that any legal authority would do so. Rather, Scripture teaches us that from a political and social perspective, a person is not to be punished for the sins of his relative (Hirsch Commentary on the Torah, Deuteronomy 24:16).

20. Throughout the generations, the Sages have perceived this principle in a persistent, consistent manner, whereby in practice, a man who did not participate in the wrongdoing is not to be punished (see the survey by Rabbi Meir Batiste, Collective Punishment, 12 Tehumin 229, 230-231 (5751) (Hebrew) (hereinafter: Batiste); Aviad Hacohen, Shall One Man Sin, and Will You be Wroth with all the Congregation? Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Vayishlach, 5761) (Hebrew) (hereinafter: Hacohen)).
21. Nevertheless, the voice of ethics and justice notwithstanding, it seems that the rule prescribing that “every man must pay for his own crimes” is not the be-all and end-all, it does not stand alone, contrary to the approach of the Petitioners who assert its exclusive application. As aforesaid, collective corporal punishment is to be viewed as distinct from property damage. The approach of Jewish law is not one-dimensional, but rather considers additional rights and principles, which are important as well, by way of balancing and completion.
22. Imposing punishment on the family members of a person who did wrong is rare, but can be found in Jewish law in various contexts. Thus, for example, Rabbi Paltoi Gaon ruled that a child may be taken out of school as a sanction against his father, in order to compel the father to fulfill a Court order, and for the purpose of protecting the principle of the rule of law and its enforcement (Teshuvot HaGeonim, Shaarei Tzedek 4, 5, Title 14; Yuval Sinai, Implementation of Jewish Law in Israeli Courts, 444 (2009); Rabbi Abraham Issac Kook justified collective sanctions against a community that decided to appoint one of its members to public office despite the fact that he had desecrated Yom Kippur, in order to prevent public desecration (Daat Kohen, 193, Batiste, 234-235)). The Sages have allowed the imposition of sanctions on members of the family of a recalcitrant husband in order to release a woman who is denied a divorce. These sanctions were imposed on the grounds that they serve as punishment for “aiding and abetting a transgression”, as well as being measures of deterrence. The underlying premise is that the recalcitrant husband does not act in a void, but rather  receives the psychological, moral, financial and practical support of his close family. Such support, after an order has already been issued by the Rabbinical Court instructing the recalcitrant husband to divorce his wife, actually aides and abets the commission of an offence, thus justifying the imposition of sanctions against the family members, as well. It is obvious, however, that such sanctions require clear proof that assistance and support were provided by the family, and in any event must be enforced proportionately (Aviad Hacohen, If You Will It, She shall not be an Agunah: Imposing Sanctions on a “Recalcitrant Husband” and his Family, Gilyonot Parashat Hashavua (Ministry of Justice) (Nitzavim-Vayelech, 5769) (Hebrew)).
23. Such an approach is also dictated by a true view of reality, since a person cannot be viewed as detached from his environment and family. The responsibility of the environment and family for a person’s actions – to a certain extent – is repeatedly mentioned in various contexts in Jewish law. Thus, for example, a midrashic interpretation of the justification for punishing the family of a person “who sacrifices any of his children to Molech” (Leviticus, 20:1): “I myself will set my face against him and his family and will cut them off from their people together with all who follow him in prostituting themselves to Molech” (ibid., 5) states:

Rabbi Shimon said: What has the family sinned? This serves to teach that when a family member is an illegal customs collector, all of its members are deemed illegal customs collectors; when a family member is a thief, all of its member are deemed thieves – since they cover for him (Torat Kohanim, ibid.).

24. It is should be noted, that regarding such matters, the power to punish is vested in the Heavenly Court and not an earthly court (Hacohen, Batiste, 234-235). Nevertheless, Rabbi Naftali Zvi Yehuda Berlin explains that the closeness of a person to his family may create an identification, which is initially conceptual, and later becomes practical as well, and thus, from a forward-looking perspective, deterrence is sometimes required for the sake of prevention:

They could no longer find it in their hearts to commit this abomination. Thus, they try to save this man, who endangered himself at first, and slowly they and others will also reach this abomination. And if they were willfully blind therefor, his family will also perish” (Haamek Davar, Leviticus 20 (Hebrew)).

25. An additional expression of the responsibility of the family and community is brought in the Talmud:

Anyone who is able to rebuke his household, but does not – he will be liable for his household; his  townsmen – he will liable for his townsmen; the entire world – he will be liable for the entire world” (Babylonian Talmud, Shabbat 54b).

As we can see, the sinner does not stand alone. His friends and family cannot wash their hands clean of him. Maimonides ruled that: “a person who sees that his friend has sinned or is following an improper path is required to correct his behavior and inform him that he is sinning by his evil deeds… and whoever is able to rebuke and fails to do so is considered responsible for such sins, for he had the opportunity to rebuke in regard to them” (, Hilchot De’ot 6:7).

26. An additional matter related to the responsibility of the community for the deeds of an offender can be found in the discussion of the matter of “house leprosy”. According to the Torah, when leprosy spreads in the walls of a house and is not cured, the entire house is to be demolished, even if all of the inhabitants will suffer, as well as the neighbors whose house wall is incidentally demolished. Such neighbor will also be forced to rebuild his damaged home:

From here they said, woe to the evil person, woe to his neighbor. Both remove, both scrape and both bring the stones (Mishnah, Nega’im, 12:6).

This matter may be understood “technically”, since one cannot tear down a wall from one side only. However, the Sages viewed the matter as justification for collective punishment of the culprit and his surroundings, which maintain a mutual and reciprocal relationship among them (see Babylonian Talmud, Sukkah 56b; Batiste 236; Michal Tikochinsky, Woe to the Evil Person, Woe to his Neighbor ,http://www.bmj.org.il/show_article/984 (Hebrew); Yehuda Shaviv, House Leprosy as distinct of other Leprosies, 15 Megadim  (2003) (Hebrew)).

27. We should note that these examples should not be understood as consistently advocating punishment of the community for the misdeeds of one deviant member. On the contrary, the rule still holds: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him” (Ezekiel 18:20). However, there are exceptions in which uprooting evil requires a punitive-deterrent response that also inflicts harm upon the surrounding environment: “The cabbage is damaged with the thorn” (Babylonian Talmud, Bava Kama 92a). Rashi explains ad loc: “When a thorn grows near the cabbage, uprooting the thorn sometimes results in the cabbage being uprooted with it and sustaining harm due to it – in other words, the neighbors of an evil person suffer with him”.
28. We should reiterate that a pecuniary matter is not equivalent to collective corporal punishment. Maimonides ruled (Mishneh Torah, Hilkhot Melachim Umilchamot 5:3) that a king “may break through to make a road and no one can take issue with him”. This is all the more applicable when rescue from danger is concerned, and a fortiori in the case of serial, murderous terrorism.
29. Unfortunately, we do not live in quietness and confidence. Peace is our heart’s desire, but it has yet to come. The IDF, police and other security forces are compelled to confront heinous, murderous terrorism that does not sanctify life, but rather worships death. The atrocities of terrorists have radicalized to the extent that they are willing to die the “death of martyrs”, as long as they drag Jews with them into the abyss. The law that applies in times of war is not the same as law that applies in times of peace (Batiste 237-238; Yaron Unger, “Fear Not Abram” – On the  Ethics of Warfare in Israel, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Lech Lecha, 5766) (Hebrew) (hereinafter: Unger)). This is not the proper venue to discuss the matter of injury to civilians in the course of such complex combat (see the discussion and references in the articles of Rabbi Shaul Yisraeli, Acts of Retribution in Light of the Halacha, 3 Crossroads of Torah and State 267-273 (1991) (Hebrew); Rabbi Haim David HaLevi, The Principle of “Kill or be Killed” in Public Life, 1 Tehumin 1 343 (5740 (Hebrew); Abraham Israel Sharir, Military Ethics according to the Halacha, 21 Tehumin  426, 431-434 (5765) (Hebrew); Unger, 2-3)). In such a context, we must caution ourselves not to draw hasty conclusions from the Halacha, inter alia due to “thousands of years of exile from land, country and state” (Guttel 18-19), resulting in “a dilution of Halacha sources” (ibid.), and due to the difference between the reality emerging from the Talmudic sources and the present reality , as well as the inherent danger of drawing anachronistic analogies (Aviad Hacohen, Law and Ethics at Times of War, Parshyiot Umishpatim – Jewish Law in the Weekly Torah Portion, 457-462 (5771) (Hebrew) (hereinafter: Parshyiot Umishpatim). Moreover, there have also been important developments in regard to what is permitted and prohibited in wars among nations. Such rules of international law have been recognized in Jewish law, under the principle of “the law of the land is the law” (Guttel 38-40, and the reference there; Unger 4).
30. As aforesaid, with all due care and caution, it is clear that there are special laws intended for times of danger and war, and their application does not entirely preclude collateral damage. Nevertheless, times of war are a moral challenge. The weapons used by combat soldiers on the battle field, and which are necessary for the success of their missions, are tools of death and destruction that would normally be seen as contradicting moral values and human rights. It is not without reason that the Torah warned warriors participating in a battle as follows: “you shall keep away from everything evil” (Deuteronomy 23:10). Special commandments are intended for times of war, in order to contend with moral and spiritual crises: “Scripture speaks only against the evil inclination” (Rashi’s commentary on Deuteronomy 21:11; Avraham Sherman, Halachic Principles in War Ethics, 9 Tehumin 231, 231-232 (5748) (Hebrew) (hereinafter: Sherman); Aviad Hacohen, “As God is Compassionate and Gracious, You too are Compassionate and Gracious!”: On Cruelty and Compassion in Jewish Tradition, in Yoel Elizur (ed.),“The Blot of a Light Cloud”? Israeli Soldiers, Army, and Society in the Intifada, 325-347 (5772) (Hebrew)). One such commandment relevant to the case at bar is the prohibition on cutting down trees around a city:

When you besiege a city for many days to wage war against it to capture it, you shall not destroy its trees by wielding an ax against them, for you may eat from them, but you shall not cut them down. Is the tree of the field a man, to go into the siege before you? However, you may destroy and cut down a tree that you know is not a food tree, and you shall build bulwarks against the city that makes war with you, until its submission (Deuteronomy 20:19-20).

31. This prohibition on collective, wanton destruction designed to hurt the enemy for no military advantage was applied to anything of value and not only to trees. This is the moral lesson of “do not destroy” (bal tashchit) at times of war, which sets a boundary and prescribes rules for self-restraint, even when permission has been granted to the destroyer to inflict harm (Moshe Drori, “When you besiege a city… you shall not destroy its trees” – the Prohibition of Do Not Destroy, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Shoftim, 5767) (Hebrew); Sherman 233-234). Jewish law permits the destruction of valuable property at times of war, provided that there is clear awareness of the purpose, and even then – one must act proportionately and carry out such acts to the least destructive extent (Sherman 235 and the references there). Such destruction, in the course of war, solely for an advantage, and performed in a proportionate manner, teaches us a thing or two about the matter of demolition and sealing contemplated in this case: even in war we must not lose sight of human values or our moral compass (Parshiyot Umishpatim, ibid., 457).
32. This difficult and distressing topic could be discussed endlessly, in Jewish law and in general, but this is not the place to discuss it further. The crux of the matter is the basic guiding principle that of which we have been warned: “A governor is cautioned not to punish the sons for the sin of the father” (Novellae Ran, Sanhedrin 27b). At the same time, we must recognize the existence of exceptions – rare, irregular, but sometimes inevitable. These can be applied when the danger is great, when the community carries a certain responsibility, even if it is only passive, or when it covers up for a crime, or when the rule of law is trampled upon, to deter, to distance the innocent from a criminal environment, to promote the social and educational value underlying punishment, and more. In the individual petitions that were dismissed, we were indeed convinced that the governor did not seek to punish the family members for the sin of the terrorist, but to deter, at times of emergency, as a lesson for all to see, and for the purpose of saving lives. This is the governor’s role – an inevitable necessity, even at the price paid by the terrorist’s family – in order to protect the living.
33. On the one hand, we are to remember and preserve morality, human rights and a measure of compassion even in war and quasi-war: “as God is compassionate, you too must be compassionate" (Midrash Sifri, Eikev 49). On the other hand, we must also bear in mind that: “He who is compassionate to the cruel will ultimately be cruel to the compassionate” (Yalkut Shimoni, I Samuel 121). We must deliberate and decide between these extremes. While the demolition of the house of a terrorist and the injury to his family is placed on one end of the scales -- the other weighs the saving of lives. This was done by my colleague Justice E. Rubinstein, and his reasoning is clear and convincing. I concur in his opinion.

 

Justice E. Hayut:

1. I concur with the conclusion reached by my colleague Justice E. Rubinstein whereby this Petition should be denied. The main reason leading me to this conclusion stems from the fact that the principle questions raised by the Petitioners were only recently heard and decided by this Court in the context of individual petitions. The first, on July 1, 2014, regarding the demolition of the home of the man accused of the assassination of Police Commander Baruch Mizrahi OBM (HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (the Awawdeh case); and the others on August 11, 2014, regarding the demolition of the homes of the abductors and murderers of the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM, and of an additional person who was involved (HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (the Qawasmeh case). Indeed, this Court is not constrained by its own precedents, as prescribed by section 20(b) of Basic Law: The Judiciary, which establishes that: “Case law laid down by the Supreme Court shall bind any court other than the Supreme Court”. However, the words of Justice Silberg in FH 23/60 Balan v. Executors of the Litvinsky Will, IsrSC 15(1) 71, 75, in reference to the previous version of that provision, in section 33(b) of the Courts Law, 5717-1957, are applicable in the case at bar, stressing as follows:

This provision does not render the pages on which the previous judgments of the Supreme Court were written into a “tabula rasa”… The Israeli legislator did not wish to completely release the Supreme Court from the burden of the precedent such that each one of its Justices would act as he pleases… This is not the path that we must take! Should we take this path, over time this judicial institution will turn from a “House of Law” into a ”House of Judges” in which the number of opinions will equal the number of its members.

This important statement should always be borne in mind. In the case at bar, the Petitioners again raise matters of principle concerning house demolition that have already been heard and resolved in the Awawdeh and Qawasmeh cases, such that they are actually seeking to overturn those judgments. I cannot agree to this without the risk of turning this court into a "House of Judges". This is particularly true given the fact that said judgments were issued by five of the Justices of this court only a few months ago. Nevertheless, it should be stated honestly that the issues raised in the Petition are difficult and vexing, and I do not deny that taking the path outlined by case law in this matter is not easy.

2. For years, Israel has contended with the spread of terror and its horrifying eruptions aimed even against innocent civilians. In recent years, the world has been exposed to global terrorism, and this reality compels the law, both locally and internationally, to confront complicated questions as to the legitimate measures that a state may employ in its struggle against terrorism, as it fulfils its obligation to protect itself and its citizens. Such complicated questions have often confronted the Israeli Supreme Court over the years, and it would be sufficient to mention several notable judgments issued in that context: the use of interrogation measures that included the exertion of physical pressure (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel, IsrSC 53(4) 817 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...); administrative detention of individuals for the purpose of using them as "bargaining chips" in negotiations (HCJ 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [http://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]); “assigned residence” orders (HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (September 3, 2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank); and the "targeted killing" policy (HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (December 14, 2006) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In addition, this court also conducted judicial review of statutes that were enacted for counterterrorism purposes (CrimA. 6659/06 A. v. State of Israel, IsrSC 62(4) 329 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]; HCJ 7052/03 Adalah - The Legal Center for Arab Minority Rights in Israel v. Ministry of the Interior, IsrSC 61(2) 202 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zehava Gal-On Meretz-Yachad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). However, it seems that in the area of counterterrorism, both international law and domestic Israeli law have yet to catch up with reality, and have yet to establish a comprehensive, detailed code of legal measures that a state may employ in fulfillment of its aforesaid obligation to protect itself and its citizens. Needless to say, this area desperately requires regulation. since the known law by which the nations of the world act is largely adapted to the traditional, familiar model of war between armies, whereas the new, horrific reality created by terrorist organizations and individuals who carry out terror attacks in Israel and around the world, disregards territorial borders and draws no distinction between times of war and times of peace. Thus, any time is the right time to spread destruction, violence and fear, usually without discriminating between soldiers and civilians. In fact, terrorism does not respect any of the rules of the game established by the old world in the laws of war, and this reality also requires that  jurists, and not only the security forces, rethink the subject in order to update these laws and adapt them to the new reality. Currently, in the absence of such an updated legal code, Israeli law must cope, on a case by case basis, with questions related to counterterrorism, while constantly aspiring and striving to maintain the fragile balance between the needs of security and human rights and the values of the State of Israel as a Jewish and democratic state.
3. Under the case law, Regulation 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Regulation 119) currently forms part of Israel’s positive law, and its validity is maintained by virtue of the Preservation of Laws clause under section 10 of Basic Law: Human Dignity and Liberty, even if it is inconsistent with the provisions of the Basic Law. However, as this Court has often stated in its decisions, and as mentioned by my colleague Justice Rubinstein, in interpreting the power granted an authority under the Regulations, we must draw interpretive inspiration from the Basic Law. This interpretive inspiration informs us that when examining and reviewing the exercise of power granted the authority under Regulation 119, the conditions of the Limitation Clause should guide us, and we must ensure that the act is undertaken for a proper purpose and that it satisfies the proportionality tests (HCJFH 2161/96 Sharif v. GOC Home Front Command, IsrSC 50(4) 485, 488 (1996); the Awawdeh case, paragraphs 16-18; the Qawasmeh case, paragraph 22).
4. In their arguments, the Respondents emphasized that the underlying purpose of the demolition policy of terrorists’ homes is not collective punishment but rather deterrence, and that the said measure was exercised in a limited manner, while examining the engineering consequences involved, and while considering less injurious measures, such as sealing, in appropriate cases. This Court adopted its position as to the purpose of this measure in a number of judgments. In the Sharif case, denying a request for a further hearing concerning the partial demolition of a building that was the residence of a person who had provided  a suicide bomber with an explosive device that was detonated on a bus in Jerusalem, President A. Barak stated as follows: “The purpose that guided the Respondent is a proper one… this is no innovation against the background of the extensive case law of this Court. The purpose is not punitive but rather deterrent” (ibid, p. 488; and also see: the Awawdeh case, paragraph 19). In their article Cost without Benefit in the House Demolition Policy: Following HCJ 4597/14 Muhammad Hassan Khalil Awawdeh v. Military Commander of the West Bank, 31 Hamishpat BaReshet Mivzakei He’arot Psika  5, 21-24 (website of the College of Management Academic Studies, September 2014) Amichai Cohen and Tal Mimran state that the consideration of deterrence as a proper purpose is controversial, and they supported this argument in reliance on the opinion of Justice Arbel in HCJ 7146/12 Serge Adam v. The Knesset (September 16, 2013) [http://versa.cardozo.yu.edu/opinions/adam-v-knesset-summary] in which she noted that the deterrence of immigrants and asylum seekers was a desired social interest, but that the legislation that was reviewed in that case did not display the required sensitivity for human rights required to  meet the proper purpose test, since it fails to treat the individual as an objective rather than a means, which constitutes another violation of his dignity as a human being. I believe that their view raises a certain analytic difficulty, given the fact that the starting point was that deterrence – in that case, of immigrants and asylum seekers, and in our case, of terrorists and their supporters – serves an important, proper social interest. That being the premise, criticism should actually be directed against the measures exercised and the proportionality tests they must satisfy, rather than against the purpose, which is itself proper, unless we are willing to determine categorically that deterrence – any deterrence – is not a proper purpose, a proposition that I would find hard to accept, and certainly not when the protection of national security and the deterrence of potential terrorists from committing terror attacks are concerned.

The Petitioners' counsel argues that even if we accept the position that the underlying purpose of house demolition is deterrence, the outcome is collectively punitive, and therefore, wrongful (on this issue see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in 189 (The Israel Democracy Institute, 2010) (Hebrew)). It seems to me that it is difficult to classify the demolition of a terrorist's home as collective punishment in the customary sense, even taking into account that his family members who live with him in that house are also injured by the demolition of the house, since one of the considerations that must be weighed by the military commander in respect of house demolitions is the extent to which the other inhabitants of the house were involved in the terrorist activity of the perpetrator (see: the Awawdeh case, paragraph 18 of the opinion of Deputy President M. Naor; the Qawasmeh case, paragraph 22 of the judgment of Justice Y. Danziger). However, the Deputy President further noted in this context that “the absence of evidence concerning awareness or involvement on the part of the relatives does not prevent, in and of itself, the exercise of the power. Nevertheless, such a factor may influence the scope of the order issued by the Respondent, as aforesaid”. In my opinion, that consideration, although it does not stand alone, should be afforded considerable weight when deciding on the demolition of a building and its scope. In the past, this court has emphasized this more than once as a concern that should be afforded such weight (see for example: the Sharif case; HCJ 6026/94 Nazal v. IDF Commander in the Judea and Samaria Area, IsrSC 48(5) 339, 349-350 (1994); the Awawdeh case, paragraph 28 of the opinion of Deputy President M. Naor). I would add, without exhausting the possibilities pertaining to this consideration, that I believe that if, indeed, the family members whose home is about to be demolished can convince, by means of sufficient administrative evidence, that prior to the terrorist attack they tried to dissuade the terrorist from carrying it out, that factor should be given very significant weight, which may, in suitable cases, rule out a decision to demolish the house of those family members.

5. An additional argument that was extensively discussed by the Petitioners pertains to the matter of the effectiveness of house demolition as a deterrent of terrorism. The Petitioners supported their arguments regarding the ineffectiveness of that measure with an expert opinion that referred to various articles, including the article of Prof. Ariel Merari (Ariel Merari, Israel Facing Terrorism, 11 Israel Affairs (2005) (hereinafter: Merari), and the article of Benmelech, Klor and Berrebi (Efraim Benmelech, Esteban F. Klor and Claude Berrebi, Counter-Suicide-Terrorism: Evidence from House Demolitions, 16493 NBER Working Paper Series (2010)), which was referenced by my colleague Justice N. Sohlberg in his opinion. According to the Petitioners, these articles refute the rationale of deterrence, but a thorough review reveals that those researchers did not reach such an unequivocal conclusion. Thus, for instance, the empirical study of Benmelech, Esteban, Klor and Berrebi points to a positive correlation between house demolitions and a decline in the number of suicide attacks that they investigated, although they qualified their conclusion by noting that the correlation was found in the period that immediately followed the demolition, and emphasized that house demolition may result in an increase of other types of terrorism, which they did not investigate (ibid., page 16). Prof. Merari also referred to the effectiveness of house demolitions as a deterring factor, and summarized his comments on this issue by saying:

In general, collective anti-terrorism measures are likely to have two opposing effects on the population from which the insurgents emerge: on the one hand, they breed fear and, on the other hand, hatred to the government. The actual behavior of the affected public, as a result of the infliction of collective punishment, depends on whether fear is stronger than anger, or vice versa. Persons who are willing to kill themselves in order to kill others are, obviously, very hard to deter by the threat of punishment to themselves, but they may still care about the well- being of their families (Merari, page 230).

This conclusion is far from a decisive rejection of the rationale of deterrence. It presents two opposing effects of demolition, and states that the deterring power of demolition largely depends on the question of whether fear overcomes hate in any given case. The last sentence of the quoted paragraph also emphasizes that it is hard to deter a suicide bomber, but it is possible that such a terrorist will still consider and take account of the wellbeing of his family, and this at least implies that it may be the only way by which he may be deterred. The scholar Cheryl V. Reicin also posits that house demolitions may deter people who consider committing terror attacks, as well as people who consider supporting the terrorists, and who offer them the hospitality of their homes. In addition, according to Reicin, house demolition may cause family members to make efforts to dissuade their children or brothers from committing terror attacks, home owners may interfere and vacate individuals suspected of terrorism from their homes, and eventually, the community that is exposed to this sanction may intervene, and inform the security forces about individuals suspected of involvement in terrorism (Cheryl Reicin, Preventive Detention, Curfews, Demolition of Houses and Deportations: An Analysis of Measures Employed by Israel in the Administered Territories, 8 515, 547 (1987)). These conclusions are also far from disproving the rationale of deterrence. In this context, it is important to emphasize that in order to satisfy the first subtest of the proportionality tests, the rational connection test, it is not necessary to show that the “means that were chosen will fulfill the objective in its entirety, and partial fulfillment which is neither marginal nor negligible will suffice to satisfy the rational connection test” (HCJ 1213/10 Nir v. Chairman of the Knesset, paragraph 23 of the opinion of President D. Beinisch (February 23, 2012).  In other words, it is sufficient to be able to point to a potential of realizing the said purpose that cannot be ruled out (HCJ 9353/08 Abu Dheim v. GOC Home Front Command, paragraph 8 of the opinion of (then) Justice M. Naor (December 17, 2008) and the references there (hereinafter: the Abu Dheim case).

6. Finally, I wish to note that I see great importance in the comment made by my colleague Justice Rubinstein concerning the future need to conduct, from time to time and to the extent possible, follow-up and research concerning the house demolition measure and its effectiveness (paragraph 27 of his opinion). In this context, it is noteworthy that this issue was also examined in the past by the Shani Committee, mentioned by my colleague, which engaged in a process of “rethinking the issue of house demolition”, and reached a conclusion that was adopted by the security community at the time (2005) whereby systematic demolition of terrorists' homes for deterrence purposes in the Judea and Samaria Area should be stopped and should be reserved for extreme cases (slide 30 of the Shani Committee presentation, Exhibit 1 of the Petition). According to the security agencies, the terrorist attack at the Merkaz Harav Yeshiva in the center of Jerusalem constituted an extreme case, and recourse was made to demolition in that matter after a pause of several years. A petition that was filed with this Court regarding that matter was denied (the Abu Dheim case). The recent wave of terror that began with the abduction and murder of the three teenagers, and continued with the frequent killings and massacres of innocent civilians, passers-by and congregation members at a synagogue, also marked an extreme change, characterized by terrorists from East Jerusalem, required a renewed application of this measure. However, these extreme cases should not dissipate the need that was addressed by my colleague to re-examine from time to time, and raise doubts and questions concerning the constitutional validity of house demolition under the tests of the Limitation Clause. In his poem “The Place where We are Right", the poet Yehuda Amichai praises the doubts that should always trouble even the hearts of the righteous:

But doubts and loves

Dig up the world

Like a mole, a plow.

 

And a whisper will be heard in the place

Where the ruined

House once stood.

For these reasons, I concur in the conclusion of my colleague Justice E. Rubinstein, according to which the Petition should be denied.

Decided in accordance with the opinion of Justice E. Rubinstein.

Given this day, 9 Tevet, 5765 (December 31, 2014).

 

 

 

In the Supreme Court

                                                                          

LFA 741/11

 

 

Before:                                    The Honorable Justice E. Arbel

                                    The Honorable Justice H. Melzer

The Honorable Justice U. Vogelman

 

The Applicant:            Jane Doe

 

 

vs.

The Respondent:         John Doe

Adv. T. Itkin

                                    On behalf of the Applicant

 

                                    Adv. G. Turs

                                    On behalf of the Respondent

 

 

 

 

Hearing of application for leave to appeal on decision of the District Court in Nazareth, on 20 January 2011, in FA 044293-12-10 handed down by Hon. Judges A. Abraham, Y. Abraham, and D. Tzarfati.

 

Date of hearing:        1 Adar B 5771; March 7, 2011

Israeli Legislation Cited

Hague Convention (Return of Abducted Children) Law, 5751-1991

 

Israeli Supreme Court cases cited:

[1]        CA 4391/96 Pol Ro v. Daphna Ro, IsrSC 50(5) 338 (1997).

 

[2]        LFA 1855/08 Jane Doe v. John Doe (not reported, 8.4.08).

 

[3]        CA 7206/93 Gabbai v. Gabbai IsrSC 51 (2) 241 (1997).

 

[4]        LFA 9802/09 Jane Doe v. John Doe (not reported, 17.12.09).

 

[5]        LCA 7994/98 Dagan v. Dagan IsrSC 53(3) 254 (1999).

 

[6]        CFH 10136/09 Jane Doe v. John Doe (not reported, 21.12.09)

 

[7]        LFA 672/06 Abu Arar v. Regozzo (not reported, 15.10.06).

 

[8]        CA 473/93 Leibovitz v. Leibovitz IsrSC 47 (3) 63 (1993).

 

[9]        CApp 1648/92 Torne v. Meshulam IsrSC 46(3) 38 (1992).

 

[10]      CA 5532/93 Gonzburg v. Greenwald IsrSC 49(3) 282 (1995).

.

[11]      LFA 911/07 Jane Doe v. John Doe (not reported, 30.10.07).

 

[12]      FH 40/80 Koenig v. Cohen IsrSC 36 (3) 701 (1982).

 

[13]      CA 692/86 Botkovsky v. Gat IsrSC 44(1) 57 (1989).

 

[14]      CA 1569/93 Maya v. Panfird IsrSC 48(5) 705 (1994).

 

[15]      CA 1912/93 Shaham v. Mones IsrSC 52(1) 119 (1998).

 

[16]      LCA 4575/00 Jane Doe v. John Doe IsrSC 55 (2) 321 (2001).

 

[17]      LCA 8791/00 Shalem v. Twenko (not reported, 13.12.06).

 

[18]      CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd. IsrSC 47 (1) 311 (1993).

 

English Judgments Cited

 

[19]    In re H and Others (Minors) [1997] UKHL 12.

 

[20]     In re AZ (Minor) [1993] 1 FLR 682.

 

 

 

 

JUDGMENT

 

Justice E. Arbel

This is an application for leave to appeal the decision of the District Court of Nazareth (Hon. Judges A. Abraham, Y. Yonatan, D. Tzarfati) that partially accepted the applicant's appeal against the decision of the Nazareth Family Court (Hon. Judge S.  Giosi) and ordered that the common daughter of the applicant and the Respondent be returned to New Jersey, United States, pursuant to the Hague Convention (Return of Abducted Children) Law, 5751-1991 (hereinafter: The Convention Law).

Factual Background

1. The applicant and the respondent, both of them natives of this country, grew up and met each other in their residential town in Israel. As of 2006 the two lived as a couple in the state of New Jersey in the United States, where they were staying based on a tourist visa. In 2007, the applicant began studying while the respondent continued to work various jobs. By virtue of the applicant’s studies, they both received a student visa. In 2008 the applicant and the respondent were married in Israel, in accordance with the Law of Moses and Israel, and immediately following the celebrations they returned to the United States. In September 2009, their daughter was born in the United States (hereinafter: the daughter). About two months after that, the applicant came to Israel for a visit together with her baby daughter, and later on the respondent joined them. During their visit in Israel, which lasted for about two months, the couple opened a children's clothing store in their native town. Upon completion of the arrangements for the opening of the shop, the three returned to the United States. In March 2010 they came to Israel again for the Passover holiday (hereinafter: the last visit), and the respondent returned to the United States on April 19, 2010; the applicant and their daughter were supposed to have joined him on June 20, 2010, however, the applicant and their daughter remained in Israel, where they have stayed until now.

2.  To complete the picture, as indicated by the decision of the Magistrates Court, at a certain stage of their relationship the respondent began to observe a religious life style, whereas the applicant did not alter her lifestyle.  This triggered disputes between the spouses, and in the course of the applicant's pregnancy, the respondent even considered divorcing her. In their last visit to Israel, the dispute between the couple peaked, with each of them staying in separate residences in their respective family homes.  On April 7, 2010, when the two were in Israel, the applicant filed for divorce in the Rabbinical Court, attaching thereto the subject of their common daughter’s custody. On April 11, 2010, the applicant and respondent met, and, with the help of an accountant who mediated between them, reached an agreement concerning the termination of their relations, titled "Property Agreement" (hereinafter: "the agreement", or "the property agreement"). The agreement established sections intended to regulate the division of property between the couple, as well as sections that regulated the matter of custody of their common daughter, child support, and visitation arrangements.  Ultimately however, the agreement was not signed, in the light of the applicant's refusal to sign it, following the respondent's rejection of one of her demands regarding the property rights of the two. The respondent returned to the United States as planned, after the applicant agreed to remove the stay of exit order that was issued against him at her request. At about the time of the date scheduled for the return of the applicant and their daughter to the United States, the respondent sent out a warning to the applicant, via his attorney, stating that he was expecting their return as planned.  In July 2010, when the applicant and the daughter did not return to the United States, the respondent filed a claim for the return of the daughter in a New Jersey Court. He subsequently filed a similar claim in the Family Court in Nazareth in which he requested an order for the daughter to be returned to the United States in accordance with the Supplement of the Convention Law (namely the Convention on the Civil Aspects of International Child Abduction, 21. 31, 43 (opened for signing in 1980); hereinafter: the Convention).

The Decision of the Family Court

3.    The Nazareth Family Court ruled that failure to return the daughter to the United States constituted an act of abduction as defined in the Convention, and given the non-application of the exceptions thereunder, the daughter must be returned to the United States. The initial determination was that an event of abduction, within the meaning of section 3 of the Convention had occured, while most of the discussion  had focused on the question of whether, at the time of the abduction, the daughter was "habitually resident" in the United States. The Court examined the subject from the perspective of two schools of thought, namely the "factual approach" and the "intention-based approach". The Court's ruling relied primarily on the "factual approach", in accordance with which it ruled that the geographical-physical place of residence of the daughter immediately prior to the act of abduction was in the United States. The Court also discussed the "intention-based approach" in its examination of the parties' intentions with respect to the current and future place of residence. It was held that the renting of an apartment in the United States and hosting of acquaintances in it, as well as the establishment of a business company in the United States attest to the intention of settling in that country. On the other hand, it ruled that the applicant's unilateral decision to discontinue her studies in the United States, the opening of a shop in Israel, the retention of social security rights, real estate and bank accounts in Israel do not attest to an immediate intention to return to Israel, but at the most to an intention to do so in the future.   

After determining that an abduction, within the meaning of section 3 of the Convention, had occurred, the Court discussed the applicant's defence claims. It determined that the exception pertaining to the "abductee" parent's consent to the abduction, prescribed in section 13 (a) of the Convention (hereinafter – "the exception of consent") is not applicable to the case at hand. First, it found that the applicant's fear, as expressed in her application to the Rabbinical Court, that the respondent would abduct the daughter, attests to his refusal to remain in Israel. Second, it ruled that the agreement that crystallized does not attest to consent because it did not become a binding contract, and because the agreement was concluded at a time when the respondent was under tremendous pressure due to stay of exit order that was issued against him. It likewise rejected the claim of applicability of the exception of subsequent acquiescence to the act of abduction, within the meaning of section 13 (a) of the Convention (hereinafter – the "exception of subsequent acquiescence"), given that the respondent sent a warning to the applicant near the time of the scheduled return to the effect that he was awaiting the return of the two to the United States, and also because he actually applied to the state authorities in the United States concerning the abduction of the daughter, about one month after the applicant and the daughter were supposed to have returned to the United States. Finally, it was determined that even the exception regarding a grave concern for harm to the minor, under section 13 (b) of the Convention (hereinafter:  the exception of grave concern for harm) has no application in this case. The court rejected the applicant's claim that illegally staying in the United States on the parents' part was liable to harm the daughter. It clarified that the legal status of the parties was not directly connected to the application of this exception, because it sufficed that the daughter's entry into the United States was possible, given that she was an American citizen.  Accordingly, the court ordered that the daughter be returned to the United States, subject to a deposit for the sum of $6000 to guarantee the child support for the daughter, and subject to the  assurance of living arrangements for the two in the apartment in which they had lived in the United States, or an alternative apartment for a period of 6 months.

The Decision of the District Court

4.    In a majority decision the Nazareth District Court dismissed the applicant's appeal, subject to changes that it introduced into the conditions for the return of the daughter. The majority (Hon. Judges Y. Avraham, and Z. Tzarfati) ruled that there were no grounds for interfering with the factual holdings of the Family Court, both regarding the act of abduction and regarding the non-application of the exceptions to the obligation to return. It stated that the Convention’s purpose of preventing the abducting parent from taking the law into their own hands mandated the presentation of concrete evidence of the applicability of the exceptions by the party claiming their applicability. The applicant failed to discharge that burden, it was therefore determined that the daughter should be returned to the United States, subject to the deposit of $10,000 by the respondent to assure the child support of the daughter and subject to the respondent’s submitting of a confirmation of the filing of a custody suit in the New Jersey court.  The minority view (Dep. President A. Abraham) was that the appeal should be accepted given the applicability of the exception of subsequent acquiescence.  According to this position, the starting point for the discussion was that the daughter was habitually resident in New Jersey and the applicant’s act could therefore be referred to as a “wrongful retention”. However, under the circumstances, the evidence indicates that the exception of subsequent acquiescence is applicable. First, where the agreement did not crystallize into a binding contract, evidentiary weight was ascribed to the proof of the respondent's agreement to the act of retention. Second, the cancellation of the stay of exit order, with the applicant’s consent, immediately after the drafting of the agreement, was interpreted as giving expression to the understandings reached in the agreement and as an attempt to comply with one of its sections. Third, the respondent’s return to the United States was presented as demonstrating the respondent’s waiver of the immediate realization of his right of custody, as well the immediate return of the daughter to the United States.

The permission to appeal this decision is now being requested.

The Applicant’s Claims

5.  In her application to appeal the applicant claims that under the circumstances of the case the conditions prescribed in section 3 of the Convention aren't fulfilled and hence it cannot be held that the failure to return the daughter to the United States was unlawful. The claim was that the parties' stay in the United States was temporary and hence the trial court erred in holding that the habitual residence of the daughter was in the United States. It was further claimed that the respondent had not proved that his custody rights were breached, and that during proceedings in the trial court, no legal proceeding was pending in the competent forum in the United States concerning custody.

Alternatively, the applicant claims that the exceptions to the obligation to return rule are applicable. First, it is claimed that the exceptions of consent and subsequent acquiescence under section 13 (a) are applicable. The claim is that the respondent filed this suit after having accepted the exclusive jurisdiction of the Rabbinical Court over the matter of divorce and the attached matters. In light of his consent, the stay of exit order issued against him was cancelled, and he returned alone to the United States. In addition, in the agreement the respondent consented to his daughter remaining in Israel and to the payments of child support in Shekels and to the consensual visitation arrangements during his visits to Israel. According to the applicant, the respondent was prepared to accept the agreement as it was, while she was the one who refused to sign it, due to a financial dispute between the parties. Second, it was claimed that the exception of grave concern for harm under section 13 (b) was applicable and that the minor’s best interests dictated that she remain in Israel. The argument was that in circumstances where there is no medical insurance for the daughter in the United States and in which her parents have no legal visitors' permit there, the return of the minor to the United States would expose her to real harm. Therefore, the applicant seeks to infer that even assuming the act of a wrongful retention, under the circumstances no order should be given to immediately return the daughter to the United States. In view of all of the above reasons, the applicant has petitioned for leave to appeal the decision of the lower court and to set aside its decision that ordered the return of the daughter to the United States.

The Respondent’s Claims

6.    The respondent, on the other hand, claims that the application for leave to appeal should be dismissed, because the case is not one that raises any principled legal question beyond the particular concern of the parties. On the merits of the matter he claims that the conditions set forth in section 3 of the Convention were fulfilled. The claim is that the respondent’s custody rights were exercised pursuant to the laws of the state of New Jersey, under which both parents have joint custody over the daughter, and that according to the decision of the lower court a custody suit had been filed in the court in New Jersey, meaning that the respondent was already exercising his custody rights, as required by the Convention. The respondent further maintains that there is no justification for interference with the factual holding of the Family Court that the habitual residence of the daughter is in the United States. The respondent attached various items of evidence to his response, which were discussed in the trial court, and which he claims show that his claim that the parties' stay in the United States was neither temporary nor limited to the duration of the applicant’s studies. The evidence presented included, amongst others, the confirmation of the conduct of bank accounts and a document attesting to the extension of a rental contract for the spouses’ residential apartment in the United States.

The respondent further opines that the exceptions to the obligation to return, as argued for by the applicant – have no application in the current case. The claim was that the agreement drafted attests neither to consent nor to acquiescence, both because it was not signed, and because it was the applicant who hand wrote in the attached draft to the agreement, “returning to Israel”. In his view this note proves the absence of a final decision concerning the place of residence. The respondent added that the exception concerning harm is similarly inapplicable to the particular circumstances. He claims that there is no fear of the parties being expelled upon their return to the U.S., given that he had received a worker’s visa in a required profession for a period of two years while the applicant had a visitor's permit for a similar period. He stressed that he had complied with the conditions set by the trial court to assure the safety of the daughter upon her return to the United States. The rent contract had been accordingly extended and the sum required to assure the payment of child support was deposited. He therefore claimed that the application for leave to appeal ought to be rejected and he requested an order for the immediate return of the daughter to the United States.

7.  After our examination of the parties' pleadings and having conducted an oral hearing, we have decided to grant leave to appeal and to hear the application as though it were an appeal in accordance with the permission granted. 

Deliberation and Ruling

8.    The case before us presents two central questions. The first is whether the applicant committed an act of wrongful retention as defined in section 3 of the Convention by not returning the daughter to the United States on the scheduled date. Should the answer be affirmative, the second question arises – whether the circumstances of the case give rise to the conclusion that one of the exceptions to the Convention's obligation of immediate return is applicable, so that no such order for the prompt return of the daughter to the United States, as the treaty dictates, should be given. I will discuss these questions by order.

The Normative Framework

 9.   Over the past few decades, as the world turned into a global village in which transition between countries is easy, and people frequently move between countries, a real need has risen for international cooperation in dealing the phenomena of abduction of children by one of the parents, in violation of the other parent's custodial rights. In most of the cases falling within the scope of the Convention our concern is with parents from different countries of origin, whose separation triggers a dispute concerning the place of residence, with each parent seeking to raise the joint child in that parent's country of birth. Occasionally, one of the parents decides to take the unilateral step of removing the child to another state, without the other parent's consent, and in violation of his custody rights. This kind of act of self-help demands a swift and efficient remedy that can only be given by way of cooperation between the states of the world. This was the background for the signing of the convention. Justice M. Cheshin dwelt on this point, writing:

 

The Hague Convention and the Convention Law were intended to establish an inter-state arrangement for a phenomenon that though observed in the past, has in our time become increasingly frequent. The world we live in today differs from that of yesterday… visits of persons native to one country in other countries have become particularly frequent, and these visits give rise to meetings between young men and women. The meetings often spark love between him and her… the couple, living together and in love, must decide between them: Where will they live – in his or her country?  A decision is made and one spouse follows the other. Time passes, and the spouses discover that they are unable to live together. The spouse who went into exile from his country naturally seeks to return to the country where he was born and raised, and seeks – also naturally – not to be separated from his child. The absent of agreement and understanding between the couple the results with abduction. However, the other spouse, is also unwilling to give up his child, and the issue thus comes before the court. The question is: In whose custody will the child be in, and in which state will he live. Naturally, the Hague Convention was not intended to apply exclusively to cases of this kind, but as we know, cases of this kind are particularly common (CA 4391/96 Pol Ro v Daphna Ro [1] p. 343 (hereinafter:  "the Ro case").

 

The Convention is based on a number of related goals. First – achieving cooperation between states in dealing with child abduction in breach of the custody rights determined in the state of origin. Second, respect for the rule of law not only within the state, but also in the relations between the states of the world. Third, the deterrence against self-help on the part of one of the parents, and finally, preventing harm to the welfare of the minor who was uprooted from his natural environment by the act of abduction (see LFA 1855/08 Jane Doe v. John Doe [2]; (hereinafter: Jane Doe case). To realize these goals the Convention established a remedy defined as “first aid” for the act of abduction, which requires signatory states to order the return of the child to the state from which he was abducted urgently and with all possible speed (see CA 7206/93 Gabbai v. Gabbai [3] (hereinafter: Gabbai case), while leaving a limited margin of discretion for the court hearing the application for return.

The Preliminary Conditions for the Application of the Convention

10.  An instruction for the return of the child to the state from which he was removed, or to which he was not returned can only be given when the preliminary conditions for the application of the Convention are satisfied, as prescribed in section 3 thereof, and which constitute an act of “abduction”. A distinction must be made between two categories of cases dealt with by this section. The first is an act of “active abduction” namely – removal from the habitual residence of the minor, to a contracting state. The second case is that of “abduction by omission”, namely the failure to return a minor from a contracting state to the state in which the minor was habitually resident (see LFA 9802/09 Jane Doe v. John Doe [4] (hereinafter: Jane Doe (1) case.))

11. Section 4 of the Convention establishes the age threshold for the minor in respect of whom there is a request to apply the Convention, setting it as 16. Section 3 of the Convention establishes three preliminary conditions for a removal or retention of a minor to be considered as “wrongful”, enabling the application of the Convention: There is a requirement that the act violated the custody rights of the “abductee” parent; that these rights were actually exercised; and that the state from which the minor was removed, or to which he was not returned was the habitual residence of the minor. The term “habitual residence” is not defined in the Convention, apparently due the aim of its drafters to enable flexibility and the ability to conduct each case according to its circumstances, having consideration for the variety of possible situations. The interpretative tendency is to  give the term “habitual residence” a strict and narrow construction since overly broad interpretation is liable to undermine the realization of the Convention’s objectives, and even to devoid it of all meaning (see ibid., at para, 9 ; Gabbai case[3] pp. 254-255.)

12.  Regarding the question of what constitutes the “habitual residence” of the minor, two schools of thought have developed in the case law, referred to respectively as the “factual approach” and the “intention based approach”. The factual approach is based on an examination of the minor’s geographical-physical place of residence immediately prior to the minor’s removal. This is a factual examination and not a legal one. This is an approach that focuses on the past. In this framework there is no place for examining the parent’s future intentions or plans, whether jointly or individually regarding the place of residence.  The only question to be asked is where did the child reside on a permanent basis just before the act of removal, from his own perspective, or from his parents' perspective if he is not at an age of sufficient maturity to testify regarding his place of residence:

The place of residence is not a technical expression...it expresses an ongoing life reality. It reflects the place in which the child was habitually resident before the abduction. The point of view is that of the child and the place in which he resided. The examination centers on past daily life and not on future plans. When parents are living together, the habitual residence of the minor is generally the place of his parents’ residence (President (Ret.) A. Barak, ibid, [3], p. 254.)

  Alongside the factual approach another approach also developed, known as the intention-based approach. This approach does not limit itself to an examination of the minor’s physical place of residence before his abduction, but also considers the parents’ intention regarding the duration and circumstances of his stay in the state. According to this approach, for example, the fact of parents having immigrated to a particular state on a permanent basis or perhaps only for a limited period would have different significance in the determination of the “habitual residence”. The parental intention is inferred from the  circumstances of the case and the interpretation given to the facts pertaining to their stay in the state (see Jane Doe (1)[4], and references cited).

13.  From the aforementioned it emerges that the intention-based approach focuses on "matters in the heart" and circumstances of debatable interpretation. The factual approach on the other hand, offers a simple and essentially objective approach, which occasionally precludes having consideration for a more complex reality. The question of the relationship between the two approaches and the weight to be ascribed to each has been left for further consideration (see CA 7994/98 Dagan v. Dagan [5] (hereinafter: Dagan case); CFH 10136/09 Jane Doe v. John Doe) [6], although it is generally accepted that the examination should be principally in accordance with the factual approach, for fear that an examination of the parents' intention will undermine the goals of the Convention. In my view, the two approaches should be combined so that the primary focus remain on the factual question of the physical place of residence, but certain weight also be ascribed to the intentions of the parties and their life circumstances. Either way, we are not required to decide this issue in the case before us.  Indeed, both of the approaches were examined by the previous instances in their consideration of the question of the daughter's “habitual place of residence”. The conclusion they reached was that the daughter's “habitual place of residence” prior to the failure to return her was the United States.

Exceptions to the Obligation to Return Rule

14.  The underlying conception of the Convention is that the abduction act harms the child and his welfare, by reason of his being uprooted from his natural environment and from his custodian parent and being brought to a foreign environment, which was forced upon him by the other parent.  While the term "child's best interest" is not mentioned in the Convention, it constitutes its basic principle, for matters concerning children cannot be dealt with without taking their best interest into account (see Gabbai [3]  p. 251; for a discussion of the connection between the Convention and children's rights, see:  Rona Shus "The Rights of Abducted Children: Is the Hague Convention (Return of Abducted Children) Law 5751-1991 Consistent with the Doctrine of Children's Rights" Mechkarei Mishpat 20 (2004) 421).  The question of the child's best interest will determine the decision on the substantive question of child custody. The discussion in proceedings under the Convention Law concerns the forum that should consider this question. Having consideration for the goals of the Convention, and primarily the goal of stressing the importance of upholding the rule of law on the international level, the default rule is that the child's best interest will be adjudicated in the child's habitual residence and not in the state to which he was abducted.

15.  That said, the child's return to his habitual residence is occasionally liable to harm him, making it inimical to his best interest. The exceptions to the obligation of return as anchored in sections 12, 13 and 20 of the convention are intended for cases such as these. According to section 12 of the Convention, the obligation of returning will not apply where the child stayed in the state to which he was abducted for a period exceeding one year, and where it was proven that child has become settled in his new environment. Section 13 establishes 3 exceptions to the obligation of return: the exception of consent and subsequent acquiescence, the exception of grave concern regarding harm, and the exception relating to consideration for the wishes of the minor, when he has reached an appropriate age and level of maturity. Section 20 establishes an additional exception, whereby the return of the child may be refused if it would be inconsistent with the fundamental principles of the state hearing the application, relating to the protection of human rights and fundamental freedoms. The exceptions to the obligation of immediate return are based on the duty of protecting the child's best interest and the need to prevent grave damages that may be caused as a result of his return.

These exceptions to a large degree contravene the other basic goals of the Convention, namely the goals of preventing the abducting parent from taking the law into his own hands, and respect for the rule of law in accordance with universal standards. In striking a balance between these two goals it was held that applying exceptions to the obligation of return must be done with careful and cautious consideration, to prevent the exception from becoming the rule in a manner that undermines the goals of the Convention and empties the undertakings of the contracting states of any content.  It follows therefore that the onus of proving the existence of exceptions is a heavy burden, not easily discharged (see LFA 672/06 Abu Arar v. Regozzo [7] ; Elisa Perez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session 426, 460 (1980) 3; hereinafter: Perez-Vera report). More precisely, discharging the burden of proof does not absolutely prevent any possibility of the minor being returned to the state from which he was removed, or to which he was not returned. Proving the existence of the exceptions only confers the court discretion regarding whether under the circumstances it would be appropriate to leave the minor in the country to which he was abducted or to return him to his residential state, having regard for the provisions of the Convention. Needless to say, in cases such as these the court’s primary concern is the best interest of the minor child, located betwixt his two parents.

16.  The exceptions to be examined for our purposes are set forth in section 13, which reads as follows:

 

Notwithstanding what mentioned in the preceding section, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

  a)  the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

 b) there is a grave concern that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained  the degree of maturity at which it is appropriate to take his views into consideration."

I will discuss the meaning and extent of the relevant exceptions by order.

The Consent and Acquiescence Exceptions

17.  As mentioned, section 13(a) of the Convention establishes two exceptions to the obligation of immediate return: the exception of consent and the exception of subsequent acquiescence. The two exceptions serve two central goals. The first goal is providing an appropriate solution to a situation in which the "abductee" parent actually agreed to or thereafter acquiesced in the act of abduction, in a matter that obviates the need to immediately restore the original situation (see CA 473/93 Leibovitz v. Leibovitz [8] (hereinafter Leibovitz). The second goal is to prevent the cynical abuse of the remedy of immediate return granted in the framework of the Convention, in a manner that would transform the Convention into a bargaining chip in the hands of the abductee parent:         

On the other hand, the guardian's conduct can also alter the characterization of the abductor's action, in cases where he has agreed to, or thereafter acquiesced in, the removal which he now seeks to challenge. This fact allowed the deletion of any reference to the exercise of custody rights 'in good faith', and at the same time prevented the Convention from being used as a vehicle for possible 'bargaining' between the parties" (Perez-Vera report, p. 461)

  18.  The subject of consent or acquiescence is the custody rights. That is to say - the consent or acquiescence of the parent to a factual situation that has emerged concerning the issue of custody rights relating to the minor (see Gabbai [3], at p.257). Unlike the determination of the habitual residence as regards section 3 of the Convention, regarding which it is customary to attribute only minimal significance to the parents' intentions and future plans, in the context of these exceptions consideration should be given to the parents' intentions relating to the minor's place of residence, their expectations and plans for the future (see: Shmuel Moran, Alon Amiran, and Hadara Bar, Immigration and Child Abduction, Legal and Psychological Aspects 88-89 (2003)). If these attest to a consent or acquiescence to the act of removal or retention, then the order to the immediate return of the minor to the habitual residence must not be given. The obligation of immediate return is no longer in the category of a duty and is given to the discretion of the court hearing the case.

19.  The exception of consent or acquiescence are similar in terms of their essence and characteristics, even though case law primarily addresses the exception of acquiescence (see e.g. in Dagan [5]; Leibovitz [8]).  The central difference between the two exceptions is centered in the time dimension – whereas consent is given prior to the act of removal or retention, subsequent acquiescence materializes after the aforementioned act (Gabbai [3], p;. 257; Leibovitz [8], p. 72). Therefore, when deciding which of the two exceptions has application in the case before us, the first thing to consider is whether the case concerns consent given before the act of abduction, or acquiescence, that materialized after the act of abduction. The second stage involves the examination of the central question regarding the application of these exceptions, namely whether the parent whose rights were breached acted as a parent whose goal was the immediate restoration of the original situation would act, or perhaps he acted in a manner that attests to his actual consent or reconciliation with it:

The existence of acquiescence is examined in light of the question: whether the conduct of the "abductee" parent is consistent with his intention to insist on his rights regarding the restoration of the status quo, namely the immediate return of the child to his habitual residence from which he was removed, or perhaps the circumstances and his conduct indicate his reconciliation to the change in the status quo, with the transfer of the child to a new location?" (Deputy President (former title) Justice Elon (ibid. [8] p. 72)

20.  Logic dictates that cases posing questions concerning the applicability of the exceptions should be heard on their merits, each case in accordance with its circumstances. Therefore, strict standards for examining the issue of consent or acquiescence must not be set. However, it is appropriate to demarcate the borders of these exceptions, for as stated, the goals of the Convention compel giving them a narrow interpretation and that they be exercised with caution and restraint. Three central features assist us in determining the applicability of exceptions and in understanding their scope: the nature and essence of the consent or acquiescence; the applicability of contract law; and the weight to be ascribed to the reason for the consent or the acquiescence and the elapsed time (Gabbai [3], pp. 255-259; Leibovitz [8], pp. 71-75).  All of these will assist us in answering the question of whether the applicant parent has waived the remedy of the immediate return of the minor, insofar as he agreed to the act beforehand or reconciled himself to it after the fact, all as explained forthwith.

21.  First, the nature and essence of the consent or acquiescence must be delineated. It was held that there is no need for these to be explicit or to be done by an active act.  Consent to an act of abduction or reconciliation thereto may be inferred from behavior in the form of omission or from implied conduct.  That said, the consent or waiver cannot be inferred from any individual acts of any one of the parties; the examination is a substantive one of the conduct of the abductee parent in the broad sense. Based on a broad perspective of the circumstances in their entirety and the overall picture we should infer that the parent waived the urgent realization of the custody or visitation rights conferred to him by authority of the domestic law of the place of the habitual residence before the act of removal or retention (see Dagan [5] p. 273). This examination is essentially objective. The abductee parent's subjective state of mind will only be considered to the extent that it received expression in his objective, external conduct (Leibovitz p. 74). The existence of consent or acquiescence, may even be inferred from the abductee parent's awareness of the breach of his rights, among other things. The awareness need not be specifically of the rights conferred to the parent by force of the Convention. To infer the existence of awareness it suffices that there is a general awareness that the parent's rights were breached or will be breached as a result of the action of the second parent. So, for example, if the parent knows that a wrongful act was committed, and he failed to receive legal advice regarding the matter, it may attest to his reconciliation with the act of abduction (see Dagan [5], p. 274)

22.  Consent or acquiescence, are contractual, in essence, given that it is a unilateral act by one of the parents, which finds its completion with the other parent,  creating a reliance interest on his part with respect to the change in the status quo. Accordingly, it was ruled that the exceptions of consent or acquiescence are governed by the laws of contracts with all that is implied thereby (see Leibovitz [8], p.73 and references cited; Gabai [3], p. 258). As such, for example, the law applying to consent or acquiescence that originated in a mistake, misleading, coercion or extortion is the same law that would apply to a contract concluded under similar circumstances and would admit of rescission. Similarly, if the abducting parent was aware that the abductee parent had not waived the change in the status quo then a claim presented by him to the effect of the applicability of the exceptions would contravene the principle of good faith. In addition, consideration should be given to the element of reliance on the part of the parent who committed the abduction. If he took measures that led to a change in his position as a result of the consent or acquiescence of the other parent, this should be taken into account as part of the entirety of considerations to be considered as part of the exception, though such consideration for the reliance interest should be exercised carefully, for fear of the abducting parent reaping the fruits of the wrong that he committed (Leibovitz [8] p. 71)

23.  In addition, consideration must be had for the weight to be accorded to the various circumstances in which the consent or the acquiescence was awarded and especially for the weight to be accorded to the time period that has elapsed from the act of removal and until the filing of the claim under the Convention. As such, it was held that reasons leading to the parent’s consent or acquiescence to the act of abduction will not be taken into account when considering the nature of the consent or acquiescence because conceivably he may not have been interested in moving the minor from one state to another or was interested in the custody issue being adjudicated in the state to which he was abducted, which was the parents’ native state. Irrespective of his reasons, if the parent’s conduct attests to consent or acquiescence to the act of abduction, it will be inferred that he has waived the rapid and immediate relief granted under the Convention, and is willing to resolve the conflict in alternative ways (Leibovitz [8], p. 70)

The time factor too is a factor when examining whether a parent’s conduct during the elapsing period is consistent with his later demand to return the minor. Regarding the exception of acquiescence, it has been ruled that consideration must be had for the time period passed from the abduction date and until the filing of the claim under the Convention, and whether it supports the inference, along with additional circumstances, of the parent acquiesced to the situation that transpired. In this context it was held that there is no defined period for crystallization of acquiescence, and that it must be determined on a case by case basis, according to the circumstances (ibid [8], pp. 72-74). In examining the exception of consent, the time element is less significant, and either a long or brief period may elapse from the time of the abduction and until the day of filing the claim, but in most cases it will have no significance, because consent by nature is given in advance, prior to the act of abduction. As such, regarding the consent exception the central question will be one of weight, namely, what were the circumstances that indicates consent and to what extent do they unequivocally attest to the “abductee” parent’s consent to waive the “first aid” provided under the Convention, all this subject to the scope of the exceptions outlined above.

24.  In some cases, perhaps the parent who consented or acquiesced to the act of abduction will ask to retract his consent. The rule is that it is not possible to retract the consent or acquiescence, and to rescind it retroactively. Once the consent or acquiescence have crystallized the parent whose custody rights were violated is deemed to have waived the immediate relief provided in the framework of the convention (ibid [8], p. 73; Dagan [5], p. 275). A change in circumstances does not justify the retraction from advance consent or subsequent acquiescence either.  As noted, the central question that the court should consider is whether the parent’s conduct clearly indicates that the parent waived the remedy of “first aid”. If the answer is in the affirmative, then the minor’s return to the state of habitual residence is not defined as an immediate obligation imposed on the court to order the minor’s return to habitual residence. The time for the immediate remedy has passed and done and the court that heard the matter has discretion to order that the matter be heard in the state of request, or in the state of habitual residence, its guiding consideration being the best interest of the child concerned.

The Grave Concern of Harm Exception

25.  Section 13(b) of the Convention provides that where there is a grave concern that the return of the minor will cause him physical or psychological harm or otherwise place the child in an intolerable situation, the court is not bound to order the return of the child.  The rule is that the child's interest when considered as part of this exception is narrower than when considered in the framework of regular custody proceedings, due to the concern that overly broadening of the exception will undermine the objectives of the Convention (see Jane Doe [2] at paras. 29 – 33). For this reason, the court utilized two tools designed to narrow the application of the exception.  First, it was ruled that the party claiming the applicability of the harm exception bears the onus of proving it beyond any reasonable doubt, which is a particularly heavy burden of proof. Secondly, the application of the exception was significantly narrowed, on an interpretative level, as it was ruled that the controlling principle governing the exception would be as prescribed in the closing section of section 13(b) whereby the child wouldn’t be returned only where there is a grave risk that the return  would place him in an intolerable situation:

The principle governing the provision of section 13(b) of the Convention is the one determined in its conclusion, and which is concerned with placing the child in an intolerable position were he to be returned to his habitual residence . . .  The controlling wording is concerned with the child being placed in an intolerable situation . . . which is to say: that is permitted to refrain from ordering the return of the child if his return would place him in “an intolerable situation”: whether that intolerable situation arises due to the grave concern that the return will expose the child to physical or psychological harm and whether his return will place him in an intolerable position “in any other way” (Ro  [1] p. 347)

In addition, it was held that this exception relates to the damage that will be caused to the minor as a result of his return to the state from which he was removed, and not as a result of his return to the parent from whom he was abducted or his severance from the abducting parent (see Capp 1648/92 Torne v. Meshulam [9]). Accordingly there were many cases which rejected the claim concerning the lack of parental ability of the parent requesting the remedy by force of the Convention, as well as the claim that the abducting parent is liable to be expelled, or to dire economic difficulties as a result of returning with the child to the state he left (see for example: CA 5532/93 Gonzburg v. Greenwald [10]). In this context the court relied solely on the determinations of experts, from whom it emerged clearly that the concern of physical or psychological damage was particularly tangible. As indicated, the exception relating to harm is particularly narrow, being limited to cases in which the return would place the child in an intolerable situation due to his exposure to the exceedingly grave physical or psychological damage, or due to his exposure to an intolerable situation for some other reason.

From the General to the Particular

26.  In the case before me both the applicant and the respondent are natives of this country who went trying their luck in the United States, where they had lived since the beginning of their relationship as a couple. The applicant began her studies, while the respondent was occupied in a variety of jobs, and at a certain stage established a business company in partnership with the applicant. Their first born daughter was born in the United States. For the duration of this period they maintained their connection with Israel, in visiting Israel frequently, retained their social security rights and even opened a store in their native city. By agreement, the applicant and the respondent with their mutual daughter came to Israel for the Pessah vacation. During that vacation they decided to separate. The respondent returned to the United States, as planned, whereas the applicant did not, having decided to stay with the daughter in Israel.  In the wake of the non-return of the daughter to the United States at the scheduled time, the respondent filed a suit for her return under the Hague Convention. 

27.  This is therefore a case of retention and the question that arises is whether it meets the conditions for the application of the Convention. The minor whose return is requested by the respondent is tender in years. On the dates that she was supposedly meant to be returned to the United States she was only nine months old, hence her age satisfies the age threshold prescribed in section 4 of the Convention, which establishes an age threshold of 16 years for a suit for the return of a minor under the Convention. In addition, it was proven in the trial court that the law of the state of New Jersey, where the applicant and respondent lived, is that the custody rights over children are joint rights. Therefore, the first condition prescribed in section 3 of the Convention is satisfied, because the retention was in breach of the respondent's custody rights over his daughter. The trial court subsequently ordered the filing of a proceeding to determine the custody in New Jersey, prior to the child being returned to the United States, and the respondent submitted documentation to his response, attesting to the fact that such a proceeding had indeed been filed. In so doing the respondent actually exercised his custodial rights, thus meeting the second condition of section 3 of the Convention, in which the parent suing for the return of the child under the Convention is obligated to exercise the custody rights that are vested in him. Finally, the Family Court held that the habitual residence of the daughter was in the United States, thus satisfying the third condition of section 3 of the Convention pertaining to proof of the act of abduction. In examination of the subject of the habitual residence from the perspectives of the factual approach and the intention based approach, the Family Court reached at an identical conclusion regarding the habitual residence prior to the act of retention.  The judges of the District Court too adopted this factual determination; I see no reason to intervene in this factual determination of the trial forum. The settled rule is that the appellant forum will not as a rule intervene in the findings of the trial forum (see LFA 911/07 Jane Doe v. John Doe [11].) after two forums have examined the circumstances of the case, reaching identical conclusions, and having examined the parties' pleadings, I see no justification for an additional factual examination of the condition concerning the habitual residence and for deviation from the rule of non-intervention in this context.

Summing up this point – in terms of the preliminary conditions for the application of the Convention, as determined by the District Court, the applicant committed an act of wrongful retention. At this stage it is incumbent upon us to examine whether any of the exceptions to the duty of immediate return are applicable.

28.  In order to determine whether under the circumstances, the exception of consent or of subsequent acquiescence are applicable, we must first examine the time dimension, which is to say: Do the circumstances indicate that the respondent consented in advance to the retention or acquiesced to it after the fact. The point of departure for the Family Court, that was also adopted by the trial court, was that the date of retention of the daughter was on 20 June, 2010, which was the date on which the applicant and the daughter were supposed to have returned to the United State in accordance with the flight tickets that were purchased prior to the parties' arrival in Israel (hereinafter: the "retention date"). The respondent filed the claim under the Hague Convention for the daughter's return to the United States immediately after the retention date. Regarding this point I should clarify that I am aware that the minority opinion in the trial court focused on the application of the acquiescence exception. However, in view of the distinction I elaborated on between the two exceptions it seems that under the circumstances, the immediate action taken by the respondent precludes the possibility of viewing his conduct as amounting to acquiescence to the retention of the daughter. Accordingly, the exception appropriate for our purposes is the exception of consent, which requires us to examine whether having regard for the entirety of circumstances we may infer that the respondent agreed to the act of retention and to the change in the status quo, and in doing so effectively waived the "first aid" remedy conferred in the framework of the Convention.  As I will presently explain, I believe this question must be answered in the affirmative, because the circumstances indicate that prior to the act of retention of the daughter, the respondent agreed that the applicant would have custody over her.

29.  The trial court held that the applicant and the respondent came to Israel by mutual agreement for the Passover vacation. During this vacation, when each of them was staying in their family's home, they agreed to separate from each other. The applicant applied to the Rabbinical Court, and commenced a divorce proceeding, to which she attached the matter of the custody of the daughter. At her request, the Rabbinical Court issued a stay of exit order against the respondent and against the daughter. The respondent applied to the Rabbinical Court with an urgent application to cancel the order. In his application he presented the entire unfolding of events between the spouses, and even declared that he was prepared to divorce the applicant immediately and to conclude a child support agreement with her as required. It should be stressed that this does not suffice to infer his consent to the applicant having the custody of the daughter. 

Subsequently, the parties decided to negotiate and to reach a separation agreement, acceptable to both of them. With the mediation of an accountant who was a mutual friend, an agreement was drafted, titled "Property Agreement". From the sections of the agreement it can be inferred that the parties agreed that the applicant and the daughter would remain living in Israel, whereas the respondent would return to the United States and to his business affairs. In section 1 of the agreement it was likewise determined that the applicant would remove the stay of exit order which was valid against the respondent, at her request.  Section 2 provided that the sum of the monthly child support for the daughter would be paid in shekels; in section 3 the respondent undertook to transfer various contracts into his name, upon which the applicant had previously been signed, in the framework of her partnership in the company in the United States. In section 4 the respondent agreed to convey all of the equipment of the applicant and the daughter to Israel, and in section 7 the parties determined consensual visitation arrangements in the event of the respondent returning to live in Israel. The entirety of the agreements in this agreement clearly evidences the parties' agreement that each of the spouses would go his/her own way – the respondent would return to the United States and the applicant and the daughter would remain in Israel.

At the end of the day however, due to an economic dispute that arose, apparently due to the applicant, the property agreement was not signed. Even so, the applicant adopted measures, which indicate that she had begun to comply with her undertakings under the agreement. This can be learnt from her consent to the removal of the stay of exit order, imposed on the respondent at her request, a consent followed by the respondent did returning to the United States alone.

30.  In other contexts it has been held that "there is no sanctity in a signature" (FH 40/80 Koenig v. Cohen [12] p.724), so that if the agreement fulfills the requirements of resolve and specificity, it will be valid even in the absence of the parties' signatures (see e.g. CA 692/86 Botkovsky v. Gat [13] p.57). Obviously, this rule is not applicable to the case before us, because the parties do not dispute that the property agreement did not become a binding contract. However, in my view the minority judge in the trial court was correct in ruling that this agreement has "quasi evidential" standing in terms of the respondent's consent for applicant to retain custody of the daughter. In the final analysis the agreement was not signed due the applicant's refusal to sign on it whereas the respondent was prepared to accept it as it was, including the sections that attest to his consent for the daughter to stay in Israel, in the applicant's custody. These being the circumstances, I think that the agreement should be considered as principal evidence, which assists in completing the overall picture, from which it may be inferred that the respondent waived the urgent realization of the custody rights that were conferred to him under the law of New Jersey.

It has not escaped me that in his statement of response the respondent attached an additional agreement draft, claiming that it was in the applicant's handwriting, and on which it was written, "returning to Israel" (hereinafter: "the draft"). His claim was that this proves that there was no agreement between the parties concerning the daughter's place of residence, and that accordingly, there was no advance agreement on the matter of the custody. The family court that adjudicated the matter of the draft viewed it as a property agreement draft, whereas the district court did not discuss its significance. From an examination of the draft it is apparent that its contents in no way conformed to the contents of the property agreement, because it dealt with a situation of reconciliation between the parties and not a situation of separation and divorce. There was no clarification – and anyway no proof – regarding when and by whom this draft was written. In the absence of these details, the aforementioned draft cannot teach us that which the respondent seeks to infer and it anyway seems that it is undisputed that the final draft of the property agreement was the one drawn up by the accountant, and that refers to a situation of separation and of the continued staying in Israel of the applicant and her daughter.

31.  Summing up this point, the agreement can be inferred from the entirety of the circumstances and need not be explicit. Indeed, in the case before me the respondent's conduct indicates his agreement that the applicant and their common daughter would not be returning to the United States. He was partner to the drafting of the property agreement in which he agreed inter alia to the matter of custody and the visitation arrangements. Later on he even took the active step of applying to the Rabbinical Court together with the applicant, requesting the removal of the stay of exit order, after which he returned to his business in the United States, as the applicant and the daughter remained in Israel. To be clear, it is quite possible that the respondent hoped that the applicant and the daughter would return to the United States at the time of their non-return, and may even have thought that this is what they would do, especially in view of the fact that the marital connection had not been finally terminated. Nonetheless, the respondent's objective conduct attests to his agreement that the daughter would remain with the applicant, and that the two of them would continue to live in Israel. The  respondent's subjective state of mind, his feelings and expectations do not suffice to enable the conclusion that he had not given his consent to the applicant and the daughter remaining in Israel, when compared with his explicit and overt conduct.   

32.  As mentioned, the act of agreement is essentially a contractual act. After the parties had discussed the subject of custody, and after the applicant agreed to the removal of the stay of exit from order that was in place against the respondent, he left the country and returned to his business in the United States. It is definitely reasonable to assume that the unfolding of events, and particularly his departure from the country with the applicant's consent, after the property agreement had been written and even fulfilled in part, engendered the applicant's reliance on a change in the status quo, the thrust of which its main part was the separation between the spouses and her remaining with the daughter in Israel. When discussing the relevance of the agreement drafted between the parties, the Family Court held that:

“The plaintiff was under pressure with a stay of exit order issued against him, that disrupted his plans which were based on his imminent return to the United States… reading the draft it is hard to escape the impression that it was drawn up under the palling shadow of the stay of exit order and even the plaintiff's consent to the contents of the draft are accepted,  it was given and obtained by reason of the pressure exercised on him in the form of the stay of exit order” (judgment of the Family Court, para. 28, p.14; emphasis mine, E.A)

I am unable to accept the conjecture that the respondent's agreement that the daughter would stay in Israel was exclusively the result of pressure due to the stay of exit order stood against him. In conducting negotiations for concluding a contract, each party is doubtless subject to and influenced by various pressures and influenced by various considerations, and calculates his steps accordingly. It has been ruled that freedom of will is constructed in a broad sense and various kinds of pressure, such as economic, social or political will not impair contractual freedom, provided that the pressures are not heavy to the degree of impairing his minimal free will (see and compare: CA 1569/93 Maya v. Panfird [14] p.705; CA 1912/93 Shaham v. Mones [15] p. 119)). In view of this, I do not accept the holding that the respondent was under tremendous pressure by reason of the stay of exit order, and that his consent was given in the wake of that pressure, without him having had the opportunity of exercising discretion. We must not forget that the pressure on the respondent by reason of his plans was counterbalanced by the matter of the custody of his daughter, which in and of itself is a matter of supreme importance.

33.  Possibly, the later measures taken by the respondent, at around the time of the retention, indicate that he changed his mind regarding the daughter remaining in Israel, or that he was still hoping for a reconciliation with the applicant. The respondent sent a warning letter to the applicant by way of his attorney, at about the time of the retention. He also filed a claim under the Convention, two months later for the return of the daughter to the United States, in the competent forum in Israel; and took steps toward acquiring a United States visitor's visa for himself. He presented documents attesting to the extension of the rental contract and the payment of the daughter’s health insurance in the United States. Later on, he complied with the preliminary conditions for the return of the daughter, as determined by the lower court. These steps attest to his desire for the daughter to return to the United States and for the question of her custody to be decided in his state of residence. However, these later steps cannot negate the consent that the respondent had previously given for the daughter to stay in Israel, prior to the act of retention. As stated, the rule is that one cannot renege on a consent that was given because the respondent’s consent to the non-return of the applicant and the daughter to the United States, indicates his waiver of the immediate remedy provided under the Convention. This being the case, in view of the overall picture emerging from the facts described, the exception of consent applies in this case. As such the question of the daughter’s return to the United States is at the discretion of the court, and the court has no immediate obligation to return the daughter pursuant to the provisions of the Convention.

34.  In light of our holding that the exception of consent is applicable, there's no need to delve into the applicant's claim concerning the application of the exception of the grave concern  for harm, since it is suffice to prove one of the exceptions in order to confer the court discretion whether to order the return of daughter or not. Briefly, I will point out that the burden of proof carried by the party making the claim is particularly heavy and its interpretation has been particularly limited. It would seem that in the absence of an expert opinion on this matter, and in the absence of any extreme circumstances, that attest to the grave concern for harm it cannot be determined that this exception has application in the case before us.

35.  Summing up, the Convention is applicable to the case before us, inasmuch as the preliminary conditions for its application are satisfied, and the applicant committed an act of unlawfully not returning the daughter to the United States. However, in the case before us, the exception of consent applies, because based on the entirety of the circumstances, first and foremost, the separation agreement and the parties' conduct after the writing of the agreement, it may be concluded that the respondent agreed to the mother and the daughter remaining in Israel. Accordingly, there is no obligation for the immediate return under the Convention, and the matter is given to the discretion of the court. I will now address the considerations relevant for this decision.

36.  After giving consideration to the entire complex of circumstances, my view is that no order should be given for the return of the daughter to the United States, and that it would be appropriate for the question of custody to be clarified in the competent forum in Israel.  The applicant and the respondent lived in the United States for four years, from the beginning of their relationship. They are not American citizens; the respondent has a temporary work permit for two years only, and the applicant has a visitors permit in the category of a tourist, which does not enable her to work for a living. The extended family of both parties lives in Israel and they have no permanent home in the United States. While they were living in the United States, they established a business in Israel and continued to conduct bank accounts and maintain their social security rights in Israel. Their entire stay in the United States, even if it lasted a few years, bore the character of a temporary stay. When they decided to separate from each other the respondent wanted to return to his business in the United States, whereas the applicant wanted to remain in Israel, in a supportive family framework, with the common daughter standing between them, a child tender in years, both of whose parents surely seek her best interest. In my view, the minor's best interest demands that the custody proceeding in her matter be conducted here in Israel and not in the United States. The daughter, who is not yet two years old has lived for most of her life with the applicant, who is the dominant parental figure in her life, especially having consideration for the respondent's long stay in the United States, which continues even now, severed from his daughter. In the circumstances of the separation between the spouses, the return of the applicant and the daughter to the United States in order to settle the custody matter may place the applicant in an intolerable situation which will ultimately work against the minor's best interest. First, it cannot be expected that after their separation the spouses will continue to live in the residential home in which they lived as a couple, the rental of which was extended in compliance with the decision of the trial court in order to ensure a residence for the minor. More precisely, given the circumstances in which the applicant only has a tourist permit, and is not permitted to work for a living in the United States, she will not be able to earn a living and support herself and her daughter apart from the respondent and should she do so, she will face the danger of expulsion from the United States. Even if the concern of such an event is not great, I do not think that one can run the risk of the applicant being separated from her baby daughter, in a manner that would contravene the best interest of the daughter at such a tender age (see LCA 4575/00 Jane Doe v. John Doe [16] at p. 331). Alternatively, the applicant might be compelled to return to living with the respondent under the same roof, but having consideration for the continued separation and the alienation that the parties displayed throughout the legal proceedings, it may reasonably be presumed that the joint residence of parents living in a state of disharmony would be detrimental to the minor's best interest. Accordingly, I believe that the considerations I enumerated above, and above all the fact of the daughter still being particularly young, and the applicant's legal position in the United States, indicate that the best interest of the minor requires that the custody matter be resolved in Israel and that therefore there should be no order for her return to the United States for the purpose of resolving this issue.

37. As an aside I have two comments to make regarding the unfolding of the proceedings before me. First, the respondent filed an application to present us with the exhibits file that was before the trial court, and the applicant replied that she would leave the matter for the court's discretion.  I examined the file as requested (by way of “Net Ha-Mishpat” system), but I found nothing there that sheds more light on the matters discussed in this decision. The matters presented there are certainly in the background of my decision, but they do not persuade me to accept the respondent's position.

Another comment pertains to the notification given to the Court by the respondent, informing us that he had been forced to leave Israel and to return to his business in the U.S.A., even before the termination of the legal proceedings before us. The applicant submitted her response to the notification, claiming that the respondent had returned to the U.S.A. in violation of the stay of exit order that was pending against him. In his reply, the respondent rejected this claim. Without addressing the claim on its merits, given that it is unnecessary and given that we do not have sufficient details for making any determination in respect thereof, it is apparent that the divorce dispute has brought the parties into a bitter and acrimonious battle. I fervently hope that with the termination of the current proceeding, the applicant and the respondent sensibly reach an agreement and will solve the disputes between them, with their primary concern being the best interest of their common daughter, who is entitled to the presence of both of her parents in her life.

Therefore, I propose to my colleagues to accept the appeal, and to determine that the decision of the District Court concerning the return of the daughter in accordance with the Convention is hereby overturned. In addition, I would suggest to my colleagues to cancel the applicant's obligation for court expenses, as stipulated by the Family Court. Under the circumstances I do not think it would be appropriate to obligate the respondent to pay the costs of this hearing,

At a later stage I read the opinion of my colleague, Justice Fogelman, and I would like to make two comments. First, I think that there will be cases in which the overlap between the civil law of contracts and the law of contracts in the family framework will not be complete (see for example LCA 8791/00 Shalem v. Twenko [17], para. 7); Shachar Lifshitz "Regulation of the Spousal Contact in Israeli Law – Preliminary Outline" Kiryat ha-Mishpat 4, 271 (5764)). Second, regarding my colleague's concern of the negative implications, in terms of the parties' willingness to conduct substantive negotiations, I think this concern is insignificant, since this case is unique in its circumstances. In this case there was a complete agreement which was not signed in the end only because of the applicant's refusal, whereas the respondent was prepared to realize it. Beyond that, as I stressed, the spouses had begun to act in accordance with the agreement when they consensually cancelled the stay of exit order that was issued against the respondent, and the respondent even left Israel and returned to the United States, while the daughter and the applicant were left in Israel. In my view, these unique circumstances justify viewing the respondent's agreements in the framework of the negotiations between the parties, as being indicative of the application of the exception of consent.

 

                                                                                                                   Justice

 

Justice H. Melzer

1.    I concur with the result reached by my colleague Justice E. Arbel in her opinion and with the main elements of her reasoning. That said, in my view, the justification for the result that she reached in her judgment, should be based more on the "exception of subsequent acquiescence" prescribed in section 13(a) of the Convention, as per its definition in the Hague Convention (Return of Abducted Children) Law, 5751-1991 than on the "exception of consent" included in the same section. My reasons for this position will be presented forthwith.

2.    Based on the circumstances described in my colleague's opinion, as well as in minority opinion, of the Deputy President, Judge A. Abraham of the Nazareth District Court, it seems to me that the respondent, with his final departure to the United States had in fact "acquiesced" at least at that time, to the non-return of the child to the United States and to her remaining together with her mother in Israel at this stage. This can be inferred from the application filed with the Rabbinical Court to cancel the stay of exit order that was issued at the applicant's initiative – a proceeding in which its completion the order was ultimately cancelled by agreement. In this context it should be remembered that the Rabbinical Court has exclusive jurisdiction in a suit for divorce between the parties where they are Israeli citizens who were married in Israel in accordance with the law of the Torah. Furthermore, in the framework of the "property agreement" that was under discussion between the parties (and which finally was not signed specifically by reason of the applicant's reservations), the respondent was prepared to undertake to transfer all of the minor's personal belongings to Israel and to pay for her monthly child support in Shekels. Parallel to this he also wanted to ensure his visiting arrangements with the daughter, whenever he came to Israel.

These data which can be learnt from the evidence in the file, suffice for purposes of being viewed, in the special circumstances of this case before us as a quasi - “acquiescence” and a waiver of the "first aid" remedies by force of the Convention. See CA 7206/93 Gabbai v. Gabbai [3] pp. 256-259; LCA 7994/98 Dagan v. Dagan [5], pp. 273-276.   I make these comments without expressing a view regarding the continuation of the proceedings between the parties.

Furthermore, even were it to be argued that the respondent did not explicitly express his "acquiescence" to the non-return of the girl to the United States at this stage, the applicant could have inferred from the consents obtained in the course of the negotiations with the respondent leading to the signing of the said "property agreement" that he had actually reconciled himself, at this time, to the daughter's transition to Israel, or that he had consented to it. Accordingly, by force of the laws of estoppel the respondent is not entitled to the temporary remedy that he requested. Expression of a similar approach can be found in the reasoning (albeit not in the result) mentioned in the decision of the House of Lords in England in In re H and Others (Minors) [19] 12 (which likewise concerned an Israeli couple) per Lord Browne – Wilkinson, where he stressed that this was the exception to the rule. See also in 1 FLR 682 In re AZ (Minor) [1993] [20].

In France too, case-law recognized this type of exception, which lead to a similar result as the result we delineated in this case. See in the decision in Aubrey v. Aubrey as cited in the book Beaumont & McEleavy The Hague Convention on International Child Abduction (1999), at p. 122) it bears mention that the aforementioned book critiques that decision, and also cites opposing French decisions - Horlander c Horlander. Cass. 1^re civ., 1992 Bull. Civ. L. No 91-18177; D.S 1993, 570)

3.  In view of all the above, the appeal should be accepted, as proposed by my colleague, Justice E. Arbel.

                                                                                                       Justice

Justice U. Vogelman

 

1.    I concur with the majority of the determinations set forth in the opinion of my colleague Justice Arbel, and with their accompanying reasons. I also agree with her determination that our case does not enable application of the "exception of acquiescence" in section 13 (a) of the Convention, within the meaning of the Hague Convention Law (Return of Abducted Children) 5751-1991. All the same, unfortunately, I cannot concur with her determination that in the case at hand there is application of the exception of consent prescribed in the same section, which would enable the non-return of the common daughter to the U.S.A, in view of the respondent's consent to the same in the framework of the preliminary draft agreement that was prepared in the course of negotiating the “property agreement”, and which did not finally materialize.

2.    As my colleague notes, the exception of consent is governed by the law of contracts, with all of the conditions implicit therein.  A fundamental principle of contracts law, which also has relevance to our case, is the principle of reciprocity. According to this principle, the advantage of the contract – i.e. the benefit received from the second party, and the disadvantage, i.e. that which must be given to the second party, must be reciprocal (see Daniel Friedman, and Nili Cohen, Contracts 149 (Vol. 1, 1991) (hereinafter: Friedman and Cohen). A situation in which there is a bifurcation in the legal status of the two contracting parties, in which one of them is held by his word and his waiver in the negotiation, and the other party is exempt and free from his consents - places the contracting parties on an unequal footing, and is not consistent with the aforementioned principle.

3.   The draft agreement in our case is the result of negotiations between the parties, in which neither of the parties realized all of their wishes. Analysis of the various components of the contract indicates that each party waived and compromised until finally a draft agreement was reached, in which the various obligations are dependent upon each other, The assumption that the respondent's consent that the applicant and the daughter would remain in Israel was a unilateral and unconditional, in my view, is not consistent with the factual infrastructure that has been presented to us, including the various components of the contract, nor with its purpose, which was to resolve the entirety of subjects that were in dispute in a manner that would enable the termination of the marriage between the parties. In this situation, where at the end of the day no agreement was reached, and the draft did not become a binding agreement, the undertakings included therein did not take effect, their execution being dependent upon reciprocal execution by each one of the parties.

4. Concededly, as noted by my colleague "there is no sanctity in the act of signing" and if the agreement embodies the foundations of resolve and specificity, it will be binding even in the absence of a signature. However, as she herself mentions, these foundations, and primarily the foundation of resolve did not exist in our case, and hence the contract did not materialize. In this situation I do not think that it is possible to severe the respondent's consent which related to one of the components of the draft agreement, from the overall agreement structure, and left alone notwithstanding that the framework of which it was supposed to be a part did not materialize. I will further add that these comments do not preclude the possibility of a legally binding undertaking being created, even if essentially unilateral, even in the framework of a negotiations towards a contract that did not ultimately result in an agreement. This would be the case in situations where there was reasonable reliance of one party to the contract in the wake of undertakings given, or presentations made by his friend in the course of negotiations (Friedman and Cohen, p. 519-648)).  However, in the case before us I do not think that the factual infrastructure that was presented to the trial forum indicates that the respondent made a statement or a presentation that was liable to lead to the applicant to reasonable reliance that would justify the protection of the law.

5.    Apart from all the above, the use of agreements in the framework of negotiations draft towards an agreement, which ultimately did not reach fruition, carries negative consequences in terms of the readiness of the parties to conduct practical negotiations towards an agreement.   More precisely, the parties are liable to avoid making representations, declarations or offers which involve a waiver to the second party, in their fear that such a waiver will serve as evidence to their detriment in a future proceeding that might take place between the parties (see CA 172/89 Sela Insurance Company Ltd. v. Solel Boneh Ltd.  [18] 333.  This could create difficulties in reaching agreements, frustrate settlements, and needlessly lengthen adjudication.

Since the exception of consent has no applicability, there is no escaping, in my view, from the dismissal of the appeal.

 

                                                                                                                   Justice

 

It was decided by a majority of opinions in accordance with the decision of Justice E. Arbel.

 

Handed down today, 13 Iyar 5771 (17.5.11)

 

  JUSTICE                          JUSTICE                     JUSTICE

 

 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 1779/99

 

Before:                                    The Honorable Justice D. Dorner

                                    The Honorable Justice D. Beinisch

                                    The Honorable Justice A. R. Zuabi

           

 

The Petitioners:

 

1.Nicole Berner-Kadish

2.Ruti Berner-Kadish

3.Mattan Berner-Kadish

 

                                    versus

 

The Respondent:

 

                                    The Minister of Interior

                                   

                                    A Petition for Order Nisi

 

Date of hearing:          15 Adar A 5760; February 21, 2000

 

Adv. Hadas Tagari

                                    On behalf of the Petitioners

 

                                    Adv. Osnat Mandel

                                    On behalf of the Respondent

 

Abstract

 

The First and Second Petitioners (hereinafter: the Petitioners,) two women who have been life partners for seven years, are Israeli citizens. Their permanent residence is in the State of California, in the United States. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant via sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, according to an adoption decree granted by a California court – where the son was born and where the three Petitioners reside. The adoptive mother was registered as an additional parent in the son’s birth certificate. The Petitioners, who wish to return to Israel and who have been staying in Israel for two years for the purposes of study, notified the registrar of the child’s adoption by the adoptive mother, relying on the birth certificate and the American court decision, and asked that the adoption be registered in the Population Registry. The Registrar refused, giving the reason that, biologically, the existence of two parents of the same sex is impossible, and that it has no duty to make registrations that are incorrect on their face. Hence the Petition.

 

The Supreme Court ruled:

 

A.        1.         The rules of private international law demand, that the personal status of a person be recognized uniformly in all countries. Splitting a status may compromise both the public and the parties’ policy. Only in extraordinary cases, when the foreign status compromises the public policy in the state where the registration is requested, it shall not be recognized.

            2.         The public policy in the country where the registration is requested – which may be compromised should the requested registration be permitted – has been given a limited interpretation.

            3.         Not recognizing a foreign adoption decree releases the adoptive parents from their duties toward the adoptees and thus infringes the rights and interests of the children.

            4.         Therefore, it seems the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial proceeding.

 

B.        1.         According to the case law, the Registrar is not authorized to determine the validity of the registration, but it must register what the citizen instructs it to, unless the “incorrectness of the registration is apparent and unquestionable.”

            2.         The registration in the case at hand does not reflect the biological aspect but the legal aspect. But it is obvious that any adoptee has two mothers – a biological mother and an adoptive mother – and the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents.

            3.         Therefore the Respondent’s claim that it may refuse to register because of an apparent incorrectness of the requested registration has no substance.

 

C. (According to Justice D. Beinisch):

            1.         The answer as to whether the Third Petitioner’s adoption by the First Petitioner would be recognized as valid in our law has yet to be pronounced upon by this Court, and it raises complex issues, including issues of private international law. However, the resolution of these issues is not in the hands of the Registrar.

            2.         The Respondent’s claim in the case at hand that the incorrectness of the requested registration is “apparent” due to the impossibility to recognize two mothers for the same child is but a different framing of the argument that an adoption based on a same-sex relationship between the biological parent and the adoptive parent must not be recognized. This position, which is one possible position on the merits of the issue, may not guide the Registrar when coming to exercise its authorities under the Population Registry Law, 5725-1965.

 

D.        (Minority opinion of Justice A. R. Zuabi):

            1.         Insofar as the registration of parents’ names is concerned, the registration in the Population Registry is prima facie evidence of its correctness, according to section 3 of the Population Registry Law.

            2.         Therefore, protecting the Registry’s reliability requires granting the Registrar the authority to examine in depth the correctness of the facts requiring registration. Therefore, when a reasonable doubt arises as to the correctness of the registration or its validity, the Registrar may refuse to make the registration.

            3.         The meaning of the Registrar’s refusal is not that the Registrar is authorized to or capable of examining the validity of foreign judicial decisions or state certificates, and determine their validity. The registrar can only refer the matter to the appropriate court.

            4.         In the case at hand, a great doubt arises as to the validity of the foreign adoption decree and as to the chances of recognizing it because the Children’s Adoption Law. 5741-1981 seemingly prohibits the adoption of a child by a same-sex couple.

            5.         As apposed to the act of conducting a marriage ceremony, which is essentially a ceremonial act, a foreign court’s declaration of a minor’s adoption is a meaningful act that changes the status of those involved and impacts their fate and their lives. Therefore, a judicial decision granted in a foreign country that establishes the personal status of one as adopted, has no validity in Israel on its own and in order to be valid must be recognized.

            6.         Therefore, the Registrar acted reasonably when it refused to register, based on the foreign adoption decree, the First Petitioner as the Third Petitioner’s mother, and there is no room to intervene in its discretion.

 

Judgment

Justice D. Dorner

1.The First and Second Petitioners (hereinafter: the Petitioners,) have been life partners for seven years. They are Israeli citizens. Their permanent place of residence is in the State of California in the United States of America. On January 12, 1996 the Second Petitioner (hereinafter: the mother) gave birth to the Third Petitioner (hereinafter: the son,) after having become pregnant by a sperm donation. The son was adopted by the First Petitioner (hereinafter: the adoptive mother,) with the mother’s consent, by an adoption decree granted on July 19, 1996 by a court in California – the birth place of the son and the place of residence of all three Petitioners. The adoptive mother was registered as an additional parent in the birth certificate issued for the child.

The Petitioners, who wish to return to Israel and who have been present in Israel for about two years for the purposes of their studies, notified the Registrar of the adoption of the son by the adoptive mother, relying on the birth certificate and the American court decision, and requested that the adoption be registered in the Population Registry. The Registrar refused. It argued that biologically the existence of two parents of the same sex is impossible, and thus the incorrectness of the registration is obvious and apparent. Because the Registrar is not required to make registrations that are incorrect on their face, the Registrar rejected the Petitioners’ request.

The Petition before us challenges this refusal.

The Petitioners requested that the Registrar be compelled to register the child’s adoption by the adoptive mother in the Population Registry. At the Petitioners request, this Court issued an order nisi.

2.The Petitioners argued that the Registrar was not authorized to refuse to register their notice; that it was required to register the adoption based on the documents presented to it; and that its refusal was a result of improper considerations, rooted in moral objection to adoptions in same-sex families.

In its response to the Petition, the Respondent repeated its arguments as to the biological impossibility. It reasoned that at the basis of the refusal there were no considerations of public policy, which it is not authorized to consider, but the apparent and obvious incorrectness of the requested registration. The Respondent additionally claimed that such a registration is impermissible under the Population Registry Regulations, which require the Registrar to register the names of the “father” and the “mother” whereas the adoptive mother was registered in the American birth certificate as a “parent” – an option that does not exist in the Israel Registry.

In my opinion, the Petition must be accepted.

3.The rules of private international law require that one’s personal status be recognized uniformly in all countries. Splitting a status may compromise the public by infringing on the parties’ rights. Only in extraordinary cases, when the foreign status harms the public policy in the country where the registration is sought, it must not be recognized. See Amos Shapira, Comments on the Nature and Purpose of Conflict of Laws in Private International Law, 10 (1984) 275, p. 290-91.

The public policy of the country where the registration is sought, which may be harmed were the requested registration be approved, was given a limited interpretation. As Justice Cardozo explained in a decision by the New York State Appeals Court:

“The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.” [Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111, 120 N.E. 198, at 202 (1918)].

For example, in England a marriage performed in Nigeria between an adult and a 13-year-old girl was recognized, even though such marriage is prohibited in England and though the girl’s best interest required, despite the recognition of the marriage, separating her from her husband. See Mohamed v. Knott, [1968] Q.B. 1, at 14. A special status is given to foreign adoption decrees, because of their impact on the best interest of the minors. So, for instance, in a decision by the English Court of Appeals, Lord Dening wrote, that subject to the harm the foreign adoption causes to the public policy “[a validly created foreign adoption] should be universally recognized throughout the civilised worlds” [In re Valentine’s Settlement, [1965] 1 Ch. 831, at 842].

In the United States, too, foreign adoptions were recognized even when according to the specific state’s law such adoptions were impermissible. See for example Delaney v. First Nat’l Bank in Albuquerque, 386 P. 2d 711, at 714 (N.M. 1963). Under the same principle, a court in North Carolina rejected the argument that an adoption in a lesbian family may not be recognized due to its harm to the public policy in that State, which does not recognize same-sex marriage. The decision states as following:

“Enforcing the adoption decree does not require North Carolina to recognize same-sex marriages. Enforcing the decree simply allows the court to determine custody of the child, as between two involved adults, based on the best interests of the child – which is the expressed public policy of the state in resolving custody matters… North Carolina has no public policy denying parental status to an individual based upon that person’s sexual preferences. It cannot be known at this stage how the trial court will resolve the custody dispute. Enforcing the adoption decree only ensures that a best interest hearing will be held which is not a result that offends the good morals, natural justice or interest of North Carolina citizens.” [Aviva S. Starr v. Sheryl R. Erez, No. 97 CVD 624 (D. N.C. Aug. 29, 1997)].

Indeed, non-recognition of a foreign adoption decree releases the adoptive parents from their duties toward the adoptees, and thus compromises the rights and interests of the children, in regards to whom wrote Justice Zilberg that “it is unacceptable to ignore the interests [of the children] under no set of circumstances” (CA 209/54, Steiner v. The Attorney General, IsrSC 9 241, at 251.) See and compare also CFH 7015/94, The Attorney General v. Jane Doe, IsrSC 50(1) 48, at 65-66; Pinhas Shiffman, Family Law in Israel (vol. 2, 1989), 252-253.

4.It therefore seems that the foreign adoption decree is valid in Israel as long as it has not been voided through a judicial procedure. However, the question as to the validity of the decree does not require determination in our matter. As Justice Zussman wrote in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: HCJ Funk-Schlesinger):  “We are not here concerned with the validity or voidance of the marriage. The issue before us is… whether it is justified for the Population Registrar to register the applicant as married.”

In that case, which is part of a long and consistent string of case law that started with HCJ Funk-Schlesinger, it was held that the Registrar is not authorized to determine the validity of the registration it is required to make, but that it must register as the citizen instructs it, unless it is a case where the “incorrectness of the registration is apparent and is not in any doubt” (there, at 243.) Justice Zussman explained this as follows:

“In registering a resident’s family status, it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty it is incapable of fulfilling. It is sufficient that the Registrar, in order to perform its duties and register the family status, that it was presented with evidence that the resident had conducted a marriage ceremony. The question of the ceremony’s validity has sometimes various aspects and their exploration is beyond the scope of the Population Registry.” [There, at 252.]

See also the words of Justice Haim Cohen in HCJ 72/62, Rufeisen v. the Minister of Interior, IsrSC 16 2428, at 2444.

Based on that same case law, the Registrar was compelled to register in the Population Registry as married a non-Jewish woman who married a Jewish citizen of Israel in a civil marriage in Cyprus, and the children of a Jewish man and a non-Jewish woman as Jews (HCJ 58/68, Shalit v. The Minister of Interior, IsrSC 23(2) 477); to register people who underwent reform or conservative conversion in recognized communities outside of Israel as Jewish in the religion and nationality markers, while they were citizens and residents of those countries (HCJ 264/87 and Others, Union of Sepharadic Torah Observers – Shas Movement and Others v. the director of the Population Administration and Others, IsrSC 43(2) 723); and to register as Jewish a Jewish male citizen of Israel and a non-Jewish woman who were married in Israel at the consular department of the Brazil embassy (HCJ 2888/92, Goldstein v. the Minister of Interior, IsrSC 50(5) 89.)

5.The Respondent does not dispute the claim that it is not authorized to determine the validity of the foreign adoption. As noted, its claim is that its refusal is based on the apparent incorrectness of the registration it was called upon to register, whereby the child has two mothers, which is impossible biologically.

This claim does not hold water.

The registration before us does not reflect the biological aspect, but the legal aspect. It is plainly clear that any adoptee has two mothers – the biological mother and the adoptive mother – and that the adoption decree does not necessarily sever the legal link between the adoptees and their biological parents. Thus section 16 of the Child Adoption Law, 5741-1981 recognizes an open adoption where the relationship between the adopted children and their biological family is preserved. This relationship finds expression in the Population Registry, and as it was explained to me, both the biological parents and the adoptive parents are registered there.

Beyond the necessary scope, I will add that the Population Registry does not consider a “mother” and “father” distinctly, but as details among the details that must be registered under the “parents’ names” (section 2(a)(2)). Even were the law to address the “mother” and the “father” separately, there would have been no bar to registering the adoptive mother as an additional mother, similarly to the way, as mentioned, decrees as to open adoptions are registered.

Based on the above, I propose to accept the Petition and to make the order nisi absolute.

Additionally, I propose to require the Respondent to pay the Petitioners their costs in the amount of NIS 10,000.

 

                                                                              Justice

 

Justice Beinisch

1.I join my colleague Justice Dorner in my position that the Petition should be accepted, and that the Respondent must register the Petitioners’ details in the Population Registry according to the foreign adoption decree.

In its response to the Petition, the State’s attorney declared that the Respondent’s position is that the Petitioners' matter falls under the rule established by this Court in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 229. Therefore, the Respondent’s position as reflected in the response is that “the Registrar is not authorized to exercise discretion as to the legal validity, which is in doubt, of a valid document that is presented to it… Indeed, it seems that were the reason for refusing to register the Petitioner as she requests is rooted in casting doubt on the validity of the adoption, the Registrar would have exceeded its authority” (section 9-10 of the response.) Further the State’s attorney stated in the response that the Respondent routinely guides its staff to register, as a general rule, out-of-country adoptees and their adoptive parents as children and parents, “without digging into the nature of the adoption and its validity” (section 10 of the response.) Therefore, the response reveals that routinely, and seemingly in the course of implementing the rule established by HCJ 143/62 above, the Respondent tends to be satisfied, for the purpose of registering adoptions, with foreign adoption decrees presented to it, without investigating or examining the substantive validity of the adoption. This policy by the Respondent has apparently been accepted for a significant period of time and it is reasonable on its face.

The State’s argument in the Petition before us is that the requested registration under the ordinary policy as to registering adoptions according to foreign adoption decrees must not be made. This is because the case at hand is not one of doubt as to the legal validity of the foreign adoption decree, but one of “incorrectness of the registration that is apparent and is not in reasonable doubt.” This reason for the Respondent’s refusal to make the requested registration is based on the exception for the registration obligation that HCJ 143/62 above established. I cannot accept this argument. In the case before us, the Respondent cannot point to an obvious and apparent “incorrectness” as mentioned. The requested registration detail is not a biological fact, but a matter that involves a complex legal issue. The answer to the question as to whether the adoption of the Third Petitioner by the First Petitioner might be recognized in our law is not simple. The similar issue of the validity or recognition of a foreign adoption procedure of the type before us, has yet to be considered by this Court, and it raises difficult questions, including those in the area of private international law. Additionally, we must assume that under factual circumstances similar to the case before us, the discussion around the validity of the adoption would focus on the matter of compromising the public policy as an exception to recognizing the adoption. As reflected from my colleague’s opinion, such discussion should consider the distinction between the “internal” Israeli public policy and the “external” public policy (on this point see: P. Shiffman, International Adoption, Israeli Reports to the XIII International Congress of Comparative Law (ed. C. Wasserstein Fassberg, Jerusalem 1990), 42-43; HCJ 143/62, above, at 256; CA 1137/93, Ashkar v. Hames, IsrSC 48(3) 641, 651-52; CFH 1558/94, Naffissi v. Naffissi, IsrSC 50(3) 626, 628.) Whatever the answer to these questions, and we need not determine this for purposes of the discussion before us, resolving them is not in the hands of the Registrar (compare: HCJ 2888/92, Goldstein and Others v. the Minister of Interior and Others, IsrSC 50(5) 89, 94.) The Respondent’s argument in this case, whereby the incorrectness of the requested registration is “apparent” because of the impossibility of recognizing two mothers for the same child, is but a different dress to the argument that an adoption based on the same-sex relationship between the biological parent and the adoptive parent should not be recognized. As said, this position – which is one of the possible positions on the merits of the issue – may not guide the Registrar when it comes to exercise its authorities under the Population Registry Law. In the absence of any claim – which is undisputed – challenging the validity of the foreign adoption decree or the correctness of the requesting parties’ details – and in our case there is no such claim – the Registrar must register the Petitioners’ details based on the adoption decree and consistently with its policy regarding the usual registration of foreign adoption decrees.

For these reasons I join the opinion of my colleague Justice Dorner.

 

                                                                                                Justice

Justice A. R. Zuabi:

                  I read my colleague Justice Dorner’s opinion and my colleague Justice Beinisch’s opinion with interest, and I regret I cannot join my voice with theirs.

                  As detailed in my colleague Justice Dorner’s opinion, this Petition is concerned with the Petitioners’ request that the Population Registrar register the First Petitioner as the mother of the minor – the Third Petitioner – by force of an adoption decree issued in the State of California which granted the Petitioner the status of a parent in terms of her relationship with the minor, a parenthood that exists alongside the biological parenthood of the Second Petitioner.

                  Relying on Justice Zussman’s words in HCJ 143/62, Funk-Schlesinger v. The Minister of Interior, IsrSC 17 225 (hereinafter: the Funk-Schlesinger case) where it was held that “the duty of the Registrar, under the above ordinance is merely the role of collecting statistical material in order to manage the book of residents, and no judicial authority was granted to it” (there, at 244,) my colleague found that the Registrar lacked the authority to examine the validity of the adoption decree granted abroad and that all it must do is register as the citizen instructs it, except for when the incorrectness of the registration is apparent and is under no doubt. In this case my colleague rejected the argument that the incorrectness of the registration is apparent through finding there is no bar to registering the adoptive mother as an additional mother similarly to the way open adoption decrees are registered.

                  With all due respect, I believe that the Funk-Schlesinger case cannot guide the determination in the case pending before us, and in my view this case can be distinguished from the Funk-Schlesinger case, a distinction that must lead to a different conclusion than that which my colleagues reached.

                  The Funk-Schlesinger case involved a Christian woman, a Belgian citizen, who married an Israeli Jewish man in a civil marriage in Cyprus, since the couple could not be married under Jewish law. Following the Cyprus marriage, the woman wished to be register in the Population Registry as married and to change her name to her husband’s name. The Registrar refused these requests since it believed a marriage between an Israeli Jew and a Christian woman to be invalid. It referred the applicant to the District Court in order to be granted declaratory judgment as to the validity of the marriage.

                  The Honorable Justice Zussman, who at the time was joined by the Honorable Justices Berenson, Vitkon and Mani, rejected the Registrar’s position and ordered it to comply with the request. However, in the dissenting opinion Justice Zilberg endorsed the Ministry of Interior’s position.

                  Justice Zussman reached the conclusion he did only after informing as to the technical and statistical purpose of the Population Registry Ordinance, 5719-1949, finding on page 249 of the opinion as following:

“The above Ordinance did not attribute to a registration in the Registry any evidentiary force or made it proof of anything. The purpose of the Ordinance is as noted in HCJ 145/51 (Judgments 11, 29) to gather statistical data, data that may be true and may be untrue, and no one guarantees its correctness. For the purpose of establishing one’s age for conscription the registration in the Book of Residents is used only as prima facie evidence, not under the Ordinance above but under the Annexure to Security Service, 5719-1959. Identification Card is issued to a resident under section 7 of the Ordinance as a method of identification, but no one is obligated to act according to it and no one is obligated to identify the holder of the identification card based on it. Holding an identification card grants its holder no rights: HCJ 155/53 (Judgments 15, 24.)”

                  As a result, Justice Zussman concluded that the registration of family status should not be used to prove the marriage, particularly when the validity of the marriage in such a situation is a highly complex issue which ought to be determined by the rules of conflicts of laws, when the Registrar has no qualification to determine it. Therefore, it is not the Registrar’s position to raise the issue of the marriage’s validity, and it must be satisfied for purposes of registration in the Population Registry with prima facie evidence that a marriage ceremony was held. And in the language of Justice Zussman on page 251 of the opinion:

“… I discussed at length the various possibilities of prohibiting or permitting mixed marriages in order to demonstrate that the issue of their validity or their invalidity is weightiest and when a couple seeks to be registered under the Population Registry Ordinance, 5719-1949 it is impossible to determine how the chips may fall. The Registrar cannot guess which court will hear the matter, how the President of the Supreme Court may use its authority under Article 55 of the King’s Council, and it cannot predict in advance whether the marriage would be recognized as valid or not.”

                  And he summarizes on page 252:

“… My opinion leans toward that when registering the family status of a resident it is not the role of the Registrar to consider the validity of the marriage. It is incumbent upon the legislature that it did not charge a public authority with a duty that it cannot fulfill. It is sufficient that the Registrar, for purposes of fulfilling its duties and registering the family status, is presented with evidence that the resident held a marriage ceremony. The question of whether the ceremony that was held is valid has aspects in both directions and examining the validity is beyond the scope of the Population Registry.”

                  The Supreme Court repeatedly affirmed this in applying the Funk-Schlesinger rule to registering religious and national markers in the Registry [see HCJ 58/68 (the Shalit case), HCJ 264/87 (Shas Movement case), HCJ 2888/92 (Goldstein case)], all of which are cited in my colleague Justice Dorner’s opinion.

                  In the Goldstein case similar, though not identical, circumstances to those in the Funk-Schlesinger case arose. There, then Deputy President Barak relied on the opinion of Justice Zussman in Funk-Schlesinger and held in section 8 of the opinion:

“…Therefore, were a non-Jewish woman, a citizen of a certain country, and the Jewish man (also a citizen of that same country) to approach the Registrar and present it with registration certificate regarding their marriage which was made by the consul of that certain country, the Registrar must register the two as married. It is true that there is doubt as to the consul’s power to perform a marriage under such circumstances, but the Registrar is not authorized to determine this doubt… Indeed, as long as such doubt exists, the Registrar must register the couple as married, because the issue as to the validity of such a ceremony has sometimes various aspects and examining its validity is beyond the scope of the Registry’s authorities.”

                  As noted, I believe the Funk-Schlesinger case must be distinguished from the case at hand. As a result, I believe a different conclusion than that reached by my colleague Justice Dorner must be reached – that is, the adoption must not be registered in the Population Registry as reasoned below.

                  First: the Funk-Schlesinger case involved the registration of a marriage, to which, as we know, the Population Registry Ordinance, 5719-1949 (hereinafter: the Registry Ordinance) applied. This Ordinance, as Justice Zussman held as cited above, had no probative value – the Ordinance did not even attribute the Registry the force of prima facie evidence, and its purpose was merely the collection of statistical information. Therefore, Justice Zussman held that the Registrar, which operates under the Ordinance, must comply with a citizen’s request and make registrations per one’s request. However, this is not the case here. The Population Registry Law, 5725-1965, which replaced the Registry Ordinance, attributes reliability and evidentiary weight to the details registered in the Registry. The law explicitly stipulates in section 3:

                  “The registration in the Registry, any copy or summary of it as well as any certificate issued under this law would serve as evidence as to the correctness of the registered details listed in paragraphs (1) to (4) and (9) to (13) of section (2).”

                  This was also established in section 1(c)(4) of the Population Registry Regulations (Registrations in Identification Card), 5750-1990:

                  “Under section 3 of the Population Registry Law, 5725-1965, the registered details in such certificate – aside from the registration for “nationality,” “personal status” and the “name of the partner” – will serve as prima facie evidence of their correctness.”

                  In the Goldstein case, the Court applied the Funk-Schlesinger rule, though the Population Registry Law was in effect, yet that case, too, concerned marriage – a registration detail that the law, similarly to the state of the law in place when the Registry Ordinance was in effect – negates any evidentiary force, and thus there was no need to distinguish the Funk-Schlesinger rule. Still, it is appropriate to reference the words of Professor M. Shawa as to the importance of the Population Registry beyond collecting statistical information, which he wrote in a critical article published following the Goldstein judgment: On The Validity and Registration of Mixed Marriages Performed by a Foreign Consul in Israel, HaPraklit 42, at 188, quoted by Justice Tal, with consent, in HCJ 1031/93, Goldstein and Others v. The Minister of Interior and Others, IsrSC 49(4) 661, at 710:

“The importance of the registration in the Population Registry and the identification card that is issued according to it must not under any circumstances be underestimated… The registration in the Population Registry has great value in different matters, much beyond ‘collecting statistical data.’ It is probably to assume that the petitioner in the Goldstein case would also be considered as an ‘Olah’ (ed. note – Jewish immigrant to Israel) as a result of this registration and will enjoy all those rights enjoyed by Jewish immigrants to Israel. Furthermore, we must assume that in reality the different government agencies and authorities, such as the Ministry of Housing, National Insurance, the IDF, tax authorities and others consider the parties as married – in the absence of any other efficient legal tool – based on the registration in the Population Registry and the identification card. They accordingly grant the rights associated with this personal status as long as a court did not invalidate such marriage…”

                  In our case we are concerned with registering “names of parents.” Registering this detail in the Registry serves, under section 3 of the law, as prima facie evidence of its correctness. In such instance it is difficult to apply the Funk-Schlesinger rule, which at its core is the Registration’s lack of evidentiary value or force. Preserving the correctness of the Registration calls for granting the Registrar with authority to examine in depth the correctness of the facts that warrant registration. Things in this spirit were said in the explanatory notes to the Population Registry Bill, published in Bills 1984, at 266, as follows:

                  “… In light of the instructions as to the authorities of the Registrar it was decided that the registration in the Registry, any copy or summary of it as well as any certificate issued according to this law would serve as prima facie evidence as to the details of the registration, with the exception of the personal status, nationality, religion and partner’s name.”

                  From all of the above it appears that when a reasonable doubt arises as to whether the registration is proper, or as to its correctness or validity, and when registering a detail that serves as prima facie evidence as to its correctness, the Registrar may refuse to make the registration. This is particularly true when there is great doubt as to the validity and prospects of recognizing a foreign adoption decree in our circumstances, as seemingly Israeli law bars any possibility of partners of the same sex to adopt a child (see section 3 of the Children’s Adoption Law which mandates at the top “There shall be no adoption but by a man and his wife together…” and see also on this matter: Ben Dror, Adopting Surrogacy, Cook Publishing 1994, at 223.) It is even possible that this conflicts with the Israeli public policy, which may prevent any option of recognizing the foreign adoption decree (see section 3(3) of Enforcing Foreign Judgments Law, 5718-1958 (Prof. M. Shawa, Personal Status Law in Israel, Expanded 3rd edition (Massada Publishing) 1991, at 470-76.)

                  Indeed, the above does not mean that the Registrar is authorized and/or capable of examining and determining the validity of a foreign court decision or foreign certificate. Its decisions in effect do not determine anything and it merely refers the citizen to the proper judicial authority.

                  On the operation of the Registrar, Dr. Zeev Palk wrote in his article Registering Marriage in the Book of Population, HaPraklit 19, 199, 204:

“In effect Registrars have taken a third tack aside from those described in the opinion (meaning the Funk-Schlesinger case – A. R. Zuabi.) They registered details such as age and family status according to an interested party’s notice and documents. Should there be any doubt in their hearts, both on the factual level and on the legal level, they forwarded the case to the division’s management to consult the legal advisor of the Ministry of Interior. Were the doubt found to be unfounded they would be instructed to register the detail, and where the doubt stood they would be instructed to notify the relevant person that the detail would not be registered until declarative judgment from the competent court may be presented. Though the Registrar is not qualified to reach judicial decisions, it enjoys legal counsel. Additionally – its decisions determine nothing, instead it only refers the citizen to the appropriate court.”

                  In our case, as opposed to the Funk-Schlesinger case, the Registrar need not “guess” which is the competent court to recognize and consider the validity of the foreign adoption decree, as section 3(b) of the Family Courts Law, 5755-1995, authorizes the family court to adjudicate petitions to enforce a foreign court decision in terms of family matters or to recognize it.

                  Second, in addition to the above, it seems there must be a distinction, for purposes of registration in the Population Registry, between registering a marriage performed abroad and an adoption or divorce granted based on a decision of a foreign court. Performing a marriage is a ceremonial act that requires no judicial determination, and thus the Registrar must be satisfied with a marriage certificate, lawfully drafted. An act that concerns the personal status and requires judicial determination is different. The adoption decree granted by a court determines and changes the status of the adoptee and the adopters – the adoptee becomes their child and not the child of her natural parents, and the adopters become her parents. In an adoption proceeding the court has a significant role, it does not fill a purely formal function, but instead fills a function of the most highly important judicial determination because adoption proceedings are of “the laws of life” which alter status and impact the fate and the life of those they concern.

                  A decision granted by a foreign court and establishes one’s personal status as divorced or adopted is not valid in Israel by its own force and it must be recognized in order to have any validity.

                  In the Rosenbaum v. Goli case (CA 423/63, IsrSC 10) this Court considered the purpose and meaning of section 11(b) of the Enforcement of Foreign Judgments Law, 5718-1958, which concerns incidental recognition. Justice Olshan said there as following:

“Were it not for section 11, when considering a suit filed in Israel, with in Israeli court, it would have been impossible to permit a party to submit a foreign decision as evidence and such attempt would have been rejected because as long as the decision is not recognized through declaration as enforceable or by granting a decision based on the foreign decision in a filed suit – the court may not recognize it.”

                  Justice Agranat confirmed this in the Anavi case (CA 472/64, Anavi v. The Attorney General, IsrSC 19(1) 645):

                  “The meaning of the above is to demonstrate that the legislative intent was but to remove the procedural difficulty as a foreign court decision may not serve as evidence ‘incidentally to the adjudication of another matter’ as long as it was not granted validity…”

                  From this we learn that the foreign decision that has yet to be recognized may not serve as evidence and that the Registrar may request that the parties present a declarative judgment recognizing the foreign decision.

                  Let us assume for a moment that two partners who are Jewish and who have married according to Jewish law travel abroad and divorce there in a civil divorce based on a foreign decision. Would the Registrar be able to register them as divorced based on the foreign decision that has yet to be recognized? The answer is certainly in the negative, despite the fact that this detail does not serve as prima facie evidence. Section 19(e)(b) authorizes the Registrar to approach the family court and seek a declarative judgment that verifies the correctness of the claims.

                  My colleague’s conclusion does not even serve a desirable policy. Registering an adoption decree in the Population Registry, despite the heavy doubt as to its correctness and validity in Israel, would compromise the Registry’s reliability and harm the adopted child’s best interest. This may cause a split in the child’s status because in the eyes of the law the child would not be considered adopted though she would be registered in the Registry as such. This would also open a wide door to registering dubious adoption decrees that clearly could never be recognized whatsoever in Israel and for which one is satisfied with their registration in the Population Registry.

                  In our case it seems the Registrar acted reasonably and within the discretion it was granted when it refused to register, based on the foreign adoption decree, the First Petitioner as the adoptive mother of the Third Petitioner. The legal doubt as to the validity in Israel of a yet to be recognized adoption decree, the uncommon family unit that the decree creates and the seeming tension in registering two mothers to a minor are sufficient to justify the Respondent’s position not to make the registration before the adoption decree is recognized and in such cases the Respondent must refer the petitioners to a family court in order to recognize the adoption decree.

                  At bottom I will note that though the Petitioners do not wish for the adoption to be recognized by the different Israeli authorities in a manner that would mean the parental duties and rights of the Petitioner vis-à-vis the child be recognized as such. However, reviewing the Petition reveals the most of the Petitioners’ arguments concern the consequences of the registration and the importance that the adoption be recognized. In effect, the Petitioners do not seek registration alone, but they seek de facto recognition of the adoption. For such purposes they should have turned to the competent court from the outset in order to be granted recognition for the adoption decree. The Respondent’s argument in this context is correct that since the Registrar has only a registering function, since its registration has no force beyond the fact of the registration itself, then the substantive outcomes of non-registration cannot be relied upon in order to justify registration. If indeed under the circumstances the registration bears any outcomes, then certainly the Registrar’s discretion cannot be eliminated.

                  Therefore, were my opinion heard, I would have rejected the Petition.

 

                                                                                                Justice

 

It was decided, by majority, according to the opinion of Justice Dorner.

Handed down today, 24 Iyar 5760 (May 29, 2000).

 

 

Justice                                                 Justice                                                 Justice

 

In the Supreme Court

LCA 3973/10

 

Before:                                                President (ret.) A. Grunis

                                                Justice U. Vogelman

                                                Justice N. Sohlberg

 

The Petitioner:                         David Stern

 

                                                v.

 

The Respondent:                     Verifone Holdings, Inc.

 

A motion for leave to appeal the decisions of the  District Court (Cent. Lod) of April 26, 2010 and August 25, 2011 in Class Action 3912-01-08 by President H. Gerstl

 

On behalf of the Petitioner:    Adv. Gil Ron; Adv. Aharon Rabinovitz;

                                                Adv. Jacob Aviad; Adv. Nadav Miara

 

On behalf of the Respondent:            Adv. Josef Ashkenazi; Adv. Moshe Yacov;

                                                Adv. Hanan Haviv

 

Judgment

 

President (ret.) A. Grunis:

1. A court in the United States approves a settlement in a class action being heard before it. According to the terms and conditions of the settlement, it applies to the members of the represented class who are located both in and outside of the United States. What effect does approval of the settlement have on a class proceeding on the same issue in Israel? This is the question before us.

The chain of events

2. The motion at bar for leave to appeal has undergone many twists and turns since being filed. I will, therefore, briefly describe the chain of events, focusing on the issue that is now to be decided. The Respondent, Verifone Holdings, Inc. (the Respondent) is a foreign company that was incorporated in the State of Delaware in the United States. The Respondent engages in the development of secure electronic payment systems and solutions. The Respondent’s shares are traded on the New York Stock Exchange (NYSE), and in the period between July 2006 and July 2010 they were also traded on the Tel Aviv Stock Exchange (TASE). In December 2007, the Respondent published immediate reports on the stock exchanges in the U.S. and in Israel, in which it was stated that errors had been discovered in its periodic financial statements in relation to the first three quarters of the financial year ended October 31, 2007. After this publication, there was a sharp drop in the value of the Respondent’s stock. These circumstances led to the filing of 16 actions in the United States against the Respondent by its shareholders, ten of which were motions for class certification, and six of which were motions for approval of derivative suits. The hearing of nine of the class proceedings was consolidated before the Federal Court in California (In re Verifone Holdings, Inc. Securities Litigation, Civil Action C 07-6140 MHP, decision of January 18, 2008; this consolidated proceeding shall hereinafter be referred to as the “Class Proceeding in the U.S.”). Various entities contended in the California court for appointment to the position of the lead plaintiff in the consolidated proceeding (“Lead Plaintiff”), including several Israeli institutional bodies (“Phoenix”, “Harel”, “Clal Finance”, “Prism”, “Batucha Investment Management” and “Yashir Investment House”). Ultimately, the California court chose to appoint a body named “National Elevator Fund” as lead plaintiff.
3. On January 27, 2008, the Petitioner, David Stern (hereinafter: the Petitioner) filed a motion for class certification against the Respondent (hereinafter: the Motion for Class Certification in Israel) in the District Court (Cent. Lod). In this proceeding, the District Court was asked to certify a class action against the Respondent on behalf of any person who purchased shares of the Respondent on TASE between March 7, 2007 (the date of publication of the first erroneous financial statement) and December 2, 2007, and who held the stock on December 3, 2007 (the date of publication of the immediate report in Israel in which the error was exposed). The Petitioner asserted that following the discovery of the errors that occurred in the Respondent’s financial statements, the value of its shares fell by approximately 46%. It was asserted that the Respondent bears responsibility to its shareholders for inclusion of the misleading details in the financial statements (pursuant to Section 38C of the Securities Law, 5728-1968 (hereinafter: the Securities Law)). The Petitioner stated that he estimates that the damage to the class members (in Israel) is in the sum of NIS 2.48 billion.
4. As aforesaid, I will review the rest of the chain of events only in brief. The Respondent filed a motion for dismissal in limine of the Motion for Class Certification in Israel, and alternatively to stay the proceedings (it is noted that the Respondent did not file an answer in response to the Motion for Class Certification in Israel, and in fact, such an answer has not been filed to date). The main grounds of the motion were the proceedings which were pending in the U.S. and which concern the same issue, and forum non conveniens considerations. The Respondent asserted, inter alia, that the law applicable to the Motion for Class Certification in Israel is U.S. law. At the hearing held before the District Court on May 25, 2008, the parties reached a stipulation whereby the court would first address the issue of the law applicable to the Motion for Class Certification in Israel. On September 11, 2008, the District Court ruled that the law applicable to the Motion for Class Certification in Israel is U.S. law ( H. Gerstl, P.). A motion for leave to appeal (LCA 8517/08) was filed from this decision. In a decision of January 27, 2010, this Court ordered the dismissal of the motion for leave to appeal, ruling that the District Court must also address the issue of staying the hearing of the Motion for Class Certification in Israel until the class proceeding in the United States is decided (A. Grunis, E. Arbel and N. Hendel, JJ.). It was further ruled that once the matter was decided, this Court could hear both the stay of proceedings issue and the issue of the applicability of foreign law. On April 25, 2010, the parties filed joint notice with the trial court whereby they agreed that the hearing of the Motion for Class Certification in Israel be postponed “based on the Honorable Court’s ruling regarding the applicability of the foreign law”, and without derogating from the Petitioner’s ability to seek to appeal the ruling regarding the applicability of the foreign law. The District Court (H. Gerstl, P.) ordered the postponement of the continued hearing of the proceeding, as agreed (decision of April 26, 2010).
5. On May 24, 2010, the motion for leave to appeal at bar was filed, from the trial court’s decision of April 26, 2010, in which the District Court ordered a stay of the proceedings (although the grounds of the motion for leave to appeal relate to the issue of the applicability of the foreign law, which was decided in the District Court’s decision of September 11, 2008). On September 1, 2010, the Petitioner filed with this Court (after being granted leave) new evidence -- a judgment that had been issued by the Supreme Court of the United States, after the granting of certiorari, in which the extraterritorial applicability of U.S. securities law was addressed (Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010), judgment of June 24, 2010 (hereinafter: the Morrison case)). The Petitioner asserted that in Morrison, it was ruled that U.S. securities law is not applicable outside of the U.S., and therefore, so he claims, the law applicable to the Motion for Class Certification in Israel is the law in Israel, and there is no room to order the continued postponement of the hearing of the proceeding. In my decision of October 13, 2010, I ordered that the handling of the motion for leave to appeal be suspended and that the District Court decide the consequences of the ruling in the Morrison case on the Petitioner’s case. On August 25, 2011, the District Court decided that the judgment in Morrison does not change its position with respect to the applicability of the foreign law, and therefore the stay of the hearing of the proceeding would remain in place. In accordance with my decision, on November 13, 2011, the Petitioner filed an amended motion for leave, in which the District Court’s decision of August 25, 2011 was also challenged. On February 4, 2013, the Petitioner gave notice (after hearing this Court’s comments at the hearing that was held on January 9, 2013) that he agrees that in view of the existence of the Class Proceeding in the U.S., the hearing of the proceeding that he instituted in Israel be postponed, while he retains the possibility of “resuming the proceedings upon circumstances so justifying”. Accordingly, we ordered, in our decision of February 10, 2013, that the hearing of the proceedings being conducted in Israel between the parties be postponed, and that if the Petitioner would petition for resumption of the hearing of the motion for leave to appeal at bar, the hearing would be resumed from the point at which it was left off.
6. In the meantime, there were developments in the proceedings in the United States. On August 9, 2013, the parties in the Class Proceeding in the United States filed a motion for approval of a settlement that was reached between them (hereinafter: the Settlement, or the Agreement). It is this Settlement which now stands at the center of the hearing before us (the Settlement was filed for our inspection in a notice on behalf of the parties of May 1, 2014). According to the Settlement, the Respondent’s shareholders in the relevant period will be entitled to financial compensation. According to the provisions of the Agreement, the class to which the Settlement applies includes any person who purchased shares of the Respondent between August 31, 2006 and April 1, 2008 (with the exception of officers of the Respondent and members of their families), “on any domestic or foreign exchange or otherwise”; sec. 1.3 of the Agreement). It is already possible to see that this definition of the class includes the class, as defined in the Motion for Class Certification in Israel, in terms of both geography and time (since the definition of the class in the Motion for Class Certification in Israel relates to whoever purchased shares of the Respondent on TASE between March 7, 2007 and December 2, 2007). The sum total of the settlement is U.S. $95 million (sec. 1.22 of the Agreement; this amount includes the representing counsel’s fees, secs. 1.16 and 5.2(c) of the Agreement). The representing counsel requested the award of fees in his favor at a rate of 20% of the settlement (i.e., 20% of U.S. $95 million; Annex A1 to the Agreement). The Agreement stated that the average compensation amount that would be due to the class members, before deduction of the fees of the Lead Plaintiff’s counsel, was U.S. $0.71 per share (ibid.).

In accordance with the provisions of the Settlement, the notice regarding the Agreement would be sent by mail to the class members who may be located with reasonable effort (sec. 6(a) of Appendix A to the Agreement). It was further agreed that an announcement would be published regarding the Agreement in three newspapers, “Investor’s Business Daily”, “Globes” and “The Business Wire” (sec. 6(b) of Appendix A to the Agreement). According to the Agreement, every member of the class is required to prove his entitlement to receive compensation by sending an appropriate form within 90 days after delivery of the notice regarding the Agreement (sec. 5.4 of the Agreement) (hereinafter: the “Entitlement Forms”). The representing counsel has discretion to permit submission of the Entitlement Forms also after this period if an undistributed balance remains in the settlement account (sec. 5.5 of the Agreement). It was further agreed that any balance that would remain in the settlement account after a period of six months would be distributed, insofar as possible, to the class members who applied for receipt of compensation and who proved their entitlement. If a balance remains after this additional distribution, it was agreed that it would be donated to a public cause (an organization which gives legal aid to the needy; sec. 5.6 of the Agreement). The Settlement further determined that each member of the class may be heard at the court hearing the proceeding, and object to approval of the Agreement (secs. 10 and 12 of Appendix A to the Agreement). Each member of the class may also give notice that he wishes to leave the class, in which case he will not be entitled to compensation by virtue of the Agreement and will not be subject to the decision in the proceeding (sec. 11 of Appendix A to the Agreement). The settlement further determined that approval of the Settlement will constitute res judicata vis-à-vis all of the class members (sec. 8 of Appendix A to the Agreement).

7. On October 15, 2013, the Federal Court in California issued “preliminary approval” for the Settlement (Edward M. Chen, J.). On December 30, 2013, the Petitioner filed with the Californian court (according to the date scheduled therefor) objection to approval of the Settlement. The objection was filed on his behalf and on behalf of the class that he seeks to represent in the Motion for Class Certification in Israel. On February 14, 2014, a hearing was held at the Federal Court in California on the objection filed by the Petitioner. The Petitioner, two of his Israeli counsel (Adv. Gil Ron and Adv. Nadav Miara) and a U.S. attorney whom they retained, were present at the hearing. On February 18, 2014, the Federal Court in California rejected the Petitioner’s objection to the Settlement. In its decision, the court addressed in detail the claims raised by the Petitioner against approval of the Agreement. We will address the court’s rulings in this context in greater detail below. The Federal Court in California further found that the settlement was fair and fitting, and that the fees at the rate requested by the representing counsel should be approved. However, the California court ordered that further publications be made in Israel regarding the fact of the Agreement. With respect to the applicability of the approval of the Settlement to the members of the class in Israel, the court added as follows: “However, as the Court noted on the record and reiterates here, this order granting final approval is not intended to dictate to the Israeli courts (nor does this Court opine on) the enforceability of the releases contained in the settlement agreement or the applicability of Morrison should the Israeli investors’ claims be permitted to proceed in Israel”. On February 20, 2014, the lead plaintiff in the Class Proceeding in the U.S. announced that notice in Hebrew would be sent by mail to many class members in Israel, that an announcement would be published in Hebrew in the “Globes” newspaper, and that the last date for the class members in Israel to submit the Entitlement Forms would be extended. The final approval of the Settlement was granted on February 25, 2014.

The parties’ claims in the supplementary pleading

8. In accordance with my decision of June 26, 2014, the parties filed a supplementary pleading in which they addressed the applicability of the Settlement that had been approved in the U.S. to the Motion for Class Certification in Israel. The Petitioner claims that the Settlement gravely discriminates against the class members in Israel, and therefore should not be recognized as preventing the continued hearing of the Motion for Class Certification in Israel. The Petitioner claims that defects occurred in the manner in which the class members in Israel were informed of the Agreement, and that, in fact, they were denied the right to withdraw from the class and object to approval of the Settlement. According to the Petitioner, the notice in Hebrew regarding the Agreement was delivered to the class members in Israel after the date for filing objections to the Agreement, and the date for withdrawing therefrom had lapsed, and the information that was provided therein was only partial and was inarticulately presented. The Petitioner adds that there are differences between the securities law in Israel and such law in the United States He claims that in the United States, the security holder is required to prove the mens rea of fraud or gross negligence in order to establish a cause of action due to an error that occurred in a financial statement, while in Israel, there is no need to prove such grounds. Therefore, so the Petitioner asserts, there was room to set apart the class members in Israel from the rest of the represented class in the United States, and to award the Israelis higher compensation. Despite these differences between the various class members, the Petitioner asserts that the Settlement makes no explicit reference to the existence of the class members in Israel, and that, in fact, the attention of the United States court was drawn thereto only at a later stage, following the objection that he filed. Thus, for example, the Settlement states that the settlement will be published in the “Globes” newspaper, without stating that it is an Israeli newspaper. On the Entitlement Forms, the class members were even required to declare that they were not aware of a legal proceeding that had been filed on their behalf on the same issue, which is not true in respect of the class members in Israel. The Petitioner adds that the United States court expressed grievance that its attention had not been drawn to the existence and uniqueness of the class in Israel. The Petitioner further states that, on the merits, the compensation that was granted to the class members in the Settlement is too low.

The Petitioner further refers, in the supplementary pleading, to the conditions for recognition of a foreign judgment pursuant to the Foreign Judgment Enforcement Law, 5718-1958 (hereinafter: the Foreign Judgment Enforcement Law). The Petitioner asserts that a class settlement issued in a foreign country should only be recognized if the right of the class members in Israel to a fair proceeding is not prejudiced. According to him, the right to a fair proceeding of the class members includes the right to receive notice of the settlement, to withdraw from the settlement, to object thereto, and the settlement being fair. According to the Petitioner, the Settlement in the case at bar does not meet these conditions. The Petitioner emphasizes in his arguments the fact that the California court explicitly ruled that it was not deciding the issue of the applicability of the settlement to the class members in Israel. Finally, the Petitioner believes that the issue of the applicability of the Settlement should be decided by the District Court. The Petitioner further seeks that we decide the issue of the applicability of the foreign law, since this decision bears consequences for the fairness of the settlement vis-à-vis the class members in Israel.

9. The Respondent, conversely, claims in the supplementary pleading on its behalf that the settlement that was approved in the United States is fitting and fair, and that it establishes res judicata in respect of the Motion for Class Certification in Israel. The Respondent rejects the Petitioner’s claims whereby the rights of the class members in Israel were denied. The Respondent specifies in its arguments the considerable efforts made to locate the class members in Israel and inform them of the Settlement and the terms and conditions thereof. The Respondent states that many class members from Israel submitted the Entitlement Forms, and a considerable portion of the “entries” to the designated website that was set up for purposes of implementation of the Settlement was from Israel. Thus, although the scope of the trade on TASE in shares of the Respondent in the relevant period was approx. 7-8% of the entire scope of the trade in its shares, it was found that 28% of all of the entries to the website mentioned were from Israel and approx. 25% of the Entitlement Forms that were submitted by way of delivery of documents arrived from Israel (as distinguished from forms that were submitted online, in respect of which the Respondent did not have full data to classify the identity of the persons submitting the forms by place of residence). In the Respondent’s opinion, the intense participation of the class members in Israel in the settlement that was reached reveals that they were well aware of the fact of the Agreement, and that many of them believed that it was a fair and fitting agreement. The Respondent adds that the Petitioner does not present even a single case of a member of the class in Israel who sought to object to the Settlement or to withdraw therefrom and was prevented from doing so. The Respondent emphasizes in its claims that the Petitioner played an active part in the hearing on approval of the Settlement in the United States, and that his claims were addressed there and rejected. The Respondent adds that the Petitioner even admitted to the California court that in his opinion, the settlement is fair. Therefore, the Respondent asserts that the judgment approving the Settlement in the United States should be recognized pursuant to the Foreign Judgment Enforcement Law, and the Motion for Class Certification in Israel denied due to the existence of res judicata. The Respondent attached to the supplementary pleading on its behalf an expert opinion regarding the foreign law, whereby approval of the Settlement in the United States establishes res judicata vis-à-vis the class members. It is noted that the Petitioner filed, after leave was granted, a response to the Respondent’s supplementary pleading, in which it added a response to its claims.

Discussion and decision

10. We decided to hear the motion as if leave had been granted and an appeal filed according to the leave granted. As aforesaid, the motion for leave to appeal before us has undergone various twists and turns since it was filed. The issue now before us is the applicability of the Settlement that was approved in the United States to the class proceeding that the Petitioner filed in Israel. The question is whether approval of the Settlement in the United States establishes res judicata vis-à-vis the Petitioner and vis-à-vis the class that he purports to represent in Israel, so as to bring an end to the proceeding that he initiated.

Res judicata arising from a judgment issued in a foreign country

11. In order for the Respondent to establish a claim of res judicata due to a judgment that was issued in a foreign country, the judgment must undergo a process of “acceptance” in Israel, pursuant to Israeli law. “So long as the foreign judgment has not undergone a process of acceptance, it has no status in Israel at all, either for the purpose of enforcement thereof in Israel or for the purpose of recognition thereof as a res judicata; it is treated as never having existed” (Celia Wasserstein Fassberg “On the Finality of Foreign Judgments”, 18 Mishpatim 35, 53 (1988); also see CApp 499/79 Ben Dayan v. ADS International Ltd., IsrSC 38(2) 99, 103 (per M. Ben-Porath, D.P.) (1984) (hereinafter: the Ben Dayan case)). The acceptance of a foreign judgment in Israel is mainly regulated in the Foreign Judgment Enforcement Law. The Foreign Judgment Enforcement Law comprises several “tracks” for acceptance of a foreign judgment: declaration of the foreign judgment as an enforceable judgment (secs. 3-10 of the Law), direct recognition of the foreign judgment (sec. 11(a) of the Law) and indirect or “incidental” recognition of the foreign judgment (sec. 11(b) of the Law) (see the survey in CApp 4525/08 Oil Refineries Ltd. v. New Hampshire Insurance Co., paras. 16-19 of the opinion of E. Arbel, J. (December 15, 2010); CApp 1297/11 Levin v. Zohar, paras. 5-6 of the opinion of N. Hendel, J. (December 29, 2013) (petition for further hearing dismissed in CFH 304/14) (hereinafter: the Levin case); Nina Zaltzman Res Judicata in Civil Proceedings, 565-566 (1991) (Hebrew)). It was ruled that when a party in a proceeding in Israel claims the existence of res judicata due to a foreign judgment, the appropriate track is that of indirect recognition of the judgment, pursuant to Section 11(b) of the Law (see Ben Dayan at p. 112 (per A. Barak, J.); CApp 490/88 Basilius v. Adila, IsrSC 44(4) 397, 404 (1990) (the Basilius case); C.A. 970/93  Attorney General v. Agam, IsrSC 49(1) 561, 568 (1995) (per E. Goldberg, J.); CApp 3294/08 Goldhar Corporate Finance Ltd. v. S.A. Klepierre, para. 6 (September 6, 2010) (hereinafter: the Goldhar case)). Section 11(b) of the Law prescribes that “incidentally to a hearing on a matter that is within the jurisdiction thereof and for the purpose of such matter, a court or tribunal in Israel may recognize a foreign judgment, even if subsection (a) does not apply thereto, if it deems it is lawful and just to do so”.
12. Among the considerations that the court must examine as to whether “it is lawful and just” to recognize the foreign judgment, it has been held that it may look to sec. 6 of the law, which lists events, upon the occurrence of which a foreign judgment will not be enforced in Israel. Another source to which it is customary to refer in this context is English law (see Goldhar, para. 6, and the authorities cited there). One of the considerations usually examined is whether the court issuing the foreign judgment held jurisdiction. However, in this regard it was ruled that if a person cooperated with the conduct of the proceedings at the foreign court and did not challenge the court’s jurisdiction there, he may not argue that they were conducted ultra vires ( the Goldhar case, para. 7; Ben Dayan, at p. 106 alongside the letter D (per M. Ben-Porath, D.P.); Amos Shapira “Recognition and Enforcement of Foreign Judgments” (Part Two), 5 Iyunei Mishpat 38, 51-52 (1976)). 

13. Another central criterion to be considered is whether the right of the counter-litigant to due process was prejudiced at the foreign court, or whether the proceedings conducted therein were inconsistent with the rules of natural justice. The main argument that is usually raised in this context is that the litigant with respect for whom the recognition of the foreign judgment is requested was denied a fair opportunity to raise his arguments before the foreign court (see the Levine case para. 6 of the opinion of N. Hendel, J; Basilius, p. 406; CApp 221/78 Ovadia v. Cohen, IsrSC 33(1) 293, (1979)hereinafter: the Ovadia case)). The burden of proof with respect to the violation of the right to due process is imposed on that litigant who argues the violation (see, ibid., p. 296 (per M. Ben Porath, J.); CApp 1268/07 Greenberg v. Bamira, para. 13 (March 9, 2009) hereinafter: the Greenberg case)).
14. Various additional  considerations that case law notes in this respect are whether the recognition of the foreign judgment is repugnant to public policy (see the Ben Dayan case, p. 107 (per M. Ben Porath, D.P.); for regarding broader discussion, see also Amos Shapira "The Recognition and Enforcement of Foreign Judgments", 4 Iyunei Mishpat 509, 530-534 (1974)), and whether the seeker of recognition acts in good faith (see:. Goldhar, para. 8). It should be noted that an indirect recognition of a foreign judgment pursuant to sec. 11(b) of the Law, does not require mutual treaty between Israel and the country wherein the judgment was issued (as distinguished from direct recognition pursuant to sec. 11(a) of the Law; see: Levine, para. 6 of the opinion of N. Hendel, J.). It should be further be emphasized that within the recognition of the foreign judgment, the correctness of the judgment on its merits is not to be examined (see: Basilius, p. 406; Greenberg, para. 10).
15. A finding by the Israeli court that the foreign judgment should be (incidentally) recognized does not conclude the matter, and the court must still determine whether the recognized judgment establishes res judicata in Israel. Different opinions have been expressed in the case law in this regard as to whether such a review should be carried out according to Israeli law or also according to the laws of the foreign country (see: Basilius, p. 411; Goldhar, para. 6). In any case, the foreign law applicable to the matter is a fact that requires proof (ibid., para. 9). However, one can also make recourse to the parity of laws presumption, whereby there is a presumption that the foreign law is identical to the Israeli law (see: Basilius, p. 411).

Indirect recognition of a judgment in a class action issued in a foreign country

16. In this age of globalization, more and more class actions cross international borders and comprise class members from different countries and even continents (see: Guidelines for Recognizing and Enforcing Foreign Judgments for Collective Redress, International Bar Association 6 (2008) (hereinafter: the IBA Guidelines)). This is also relevant to class actions under securities law, since in this area the trading of securities is also becoming increasingly cross-border (see: ibid., p. 17). That being the case, how should we examine whether it would be "lawful and just" (as per the language of sec. 11(b) of the Enforcement of Foreign Judgments Law) to recognize a judgment in a class action that was issued in a foreign country? How is the recognition of a foreign judgment in a class action different from the recognition of a foreign judgment pertaining to a non-class action?
17. In a proceeding (in personam) that is not a class action, only the rights and obligations of the litigants who are present in court are heard and decided. Conversely, a class action is a proceeding which contemplates, inter alia, the rights and obligations of additional players, who are absent from the court room, namely the class members. In a class action, the lead plaintiff seeks to conduct a proceeding on behalf of the class members, and the outcome of the class action might bind them, for better or for worse (see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011): "The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only' (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979); Hansberry v. Lee, 311 U.S. 32, 40-41 (1940)). Hence, prior to a recognition of a foreign judgment in a class action, the rights of the class members should be considered, as well as the concern regarding the violation thereof (see: John P. Brown, “Seeking Recognition of Canadian Class Action Judgments in Foreign Jurisdictions: Perils and Pitfalls,” 4(2) Canadian Class Action Rev. 220, 222 (2008)) (hereinafter: Brown).
18. The aforesaid is particularly relevant in relation to a class settlement certified by a court in a foreign jurisdiction. A class settlement has a great potential of discrimination against the rights of the class members, since the lead plaintiff and the defendant may collaborate in negotiation and reach agreements that harm the class members and at their expense. There is a concern that the two may agree to high legal fees and compensation to the lead plaintiff and his counsel, in return for an agreement that is not optimal for the represented class. The agreement can be harmful to the class members in two main ways: compensation which is lower than what would be reasonable for each one of the class members, or an expansion of the scope of causes of action in respect of which res judicata shall be established following the certification of the agreement (see: Amir Weizenbluth "Adequate Representation in Class Settlements") 43(1)  Mishpatim 351, 366-367 (2012) (hereinafter: Weizenbluth); Greenberg v. Procter & Gamble Co. (In re Dry Max Pampers Litig.), 724, F. 3d (6^th Cir. 2013) 713, 715).
19. In the case of a number of class proceedings pertaining to the same issue and conducted in different tribunals, and when a settlement is achieved in one of these proceedings, the said concern for harming the class members is further intensified. First of all, from the perspective of the lead plaintiffs and their counsel in the various proceedings, the situation generates competition over the compensation and counsel fees which will be awarded upon the conclusion of the proceeding, since even if the proceedings are not consolidated, it is unlikely that compensation and legal fees will be awarded against the same defendant in more than one proceeding (however, see para. 21 below). Therefore, the lead plaintiffs and their counsel have an incentive to rush the negotiations and reach a settlement with the defendant as quickly as possible. The faster they reach the settlement, and the more expansive the settlement is, the better they can "ploy" their competitors, the lead plaintiffs and their counsel in the other proceedings. On the other hand, a lead plaintiff who chooses to pursue the proceeding to its conclusion, or to start negotiating at a later stage thereof, may leave empty handed. There is no doubt that at times such conduct might be at the expense of the class members and involve their inadequate representation (see John C. Coffee, Jr., “Class Wars: the Dilemma of the Mass Tort Class Action,” 95 Colum. L. Rev. 1343, 1370 (1995) (hereinafter: Coffee, “Class Wars"): "The first team to settle with the defendants in effect precludes the others (who may have originated the action and litigated it with sufficient skill and zeal that the defendants were eager to settle with someone else"; Samuel Issacharoff & Richard A. Nagareda, “Class Settlements Under Attack,” 156 U. Pa. L. Rev. 1649, 1666 (2008) (hereinafter: Issacharoff & Nagareda). We explained elsewhere the lead plaintiff’s incentive to be the first to file the motion for class certification (see LCA 4778/12 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel Ltd. v. Naor, para. 7 (July 19, 2012); LCA 4253/14 Halfon v. Shemen Oil and Gas Resources Ltd., para. 10 (December 29, 2014)). When several class proceedings treat the same causes of action and are conducted concurrently in several courts (whether in the same country or in different ones), the lead plaintiffs and their counsel have another incentive, which is to be the first to conclude the proceeding. These two incentives (to be the first to initiate the proceeding and the first to conclude it), might prejudice the quality of representation of the class members.
20. The concern for harm to the class members also exists from the perspective of the defendant. In view of the "competition" between the various lead plaintiffs, the fear arises that the defendant may choose to focus on the proceeding in which he deems the lead plaintiff and the forum to be most convenient, in an attempt to promote negotiation for settlement in that proceeding. By such conduct, which American law refers to as  "reverse auction", the defendant attempts to identify a class proceeding, among those filed against him, in which he can reach a favorable settlement, and which encompasses the causes of action that are contemplated in the remaining proceedings (see: Reynolds v. Benefit Nat'l Bank, 288 F.3d 277, 282 (7^th Cir. 2002); Coffee, “Class Wars,” p. 1372; Myriam Gilles & Gary B. Friedman, “Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers,” 155 U. Pa. L. Rev. 103, 161-162 (2006)). We would note that also in cases in which no settlement is achieved, the defendant can act to expedite the hearing of a class action that he deems convenient, and procrastinate in others, thus influencing the forum before which the arguments against him shall be heard (see Arthur R. Miller & David Crump, “Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts,” 96 Yale L.J. 1, 24 (1986); also see Henry P. Monaghan, “Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members,” 98 Colum. L. Rev. 1148, 1160-1161 (1998) (hereinafter: Monaghan)).
21. Indeed, a defendant who follows this path assumes the risk that an unfair settlement that he entered into shall eventually not be recognized by other tribunals, and he may be charged with additional payment to the class members or any part thereof (see Brown, p. 220; IBA Guidelines, p. 9-10; Tanya J. Monestier, “Is Canada the New Shangri-La of Global Securities Class Actions?” 32 NW J. Int'l L. & Bus. 305, 334 (2012)). That risk might be an incentive to the defendant to avoid executing an unfair settlement that prejudices the rights of class members. However, sometimes this is a calculated risk taken by the defendant.
22. As we can see, there is a difference between the recognition of a foreign judgment in a class action and the recognition of a foreign judgment in a non-class action, in terms of the identity of the litigant whose rights are feared to be harmed. In a non-class proceeding, the recognition would normally not raise any particular difficulty for the plaintiff in the foreign tribunal, since he is the one who initiated the proceeding there. Usually, the question under consideration would be whether the rights of the defendant in the foreign tribunal were prejudiced. On the other hand, in class proceedings, the recognition of the foreign judgment is usually requested by the defendant, attempting to establish res judicata in regard to the represented class (after the defendant has completed, successfully according to him, a class proceeding in a foreign tribunal). In that case, the question is whether the rights of the class members were prejudiced by the local tribunal. The Canadian court explained this issue, as follows (Currie v. McDonald's Restaurants of Canada Ltd. 74 O.R. (3d) 321, 330 (Ont. C.A. 2005) (hereinafter: the Currie case)):

"In a traditional non-class action suit, there is no question as to the jurisdiction of the foreign court to bind the plaintiff. As the party initiating proceedings, the plaintiff will have invoked the jurisdiction of the foreign court and thereby will have attorned to the foreign court's jurisdiction. The issue relating to recognition and enforcement that typically arises in whether the foreign judgment can be enforced against the defendant.

Here, the tables are turned. It is the defendant who is seeking to enforce the judgment against the unnamed, non-resident plaintiffs. The settling defendants, plainly bound by the judgment, seek to enforce it as widely and as broadly as possible in order to preclude further litigation against them".

The considerations to be taken into account for incidental recognition of a foreign judgment in a class action

23. We shall now return to the Enforcement of Foreign Judgments Law. It would seem that nothing prevents the application of sec. 11(b) of the Law even to the incidental recognition of a foreign judgment issued in a class action. However, there is a question regarding the manner of implementation of the various criteria that the court must consider in this context, in view of the aforementioned special characteristics of the recognition of a foreign judgment in a class proceeding (on the need to adapt the regular rules for the enforcement and recognition of a foreign judgment in a class action, see Brown, p. 222; for a review of the guidelines established in this respect by the International Bar Association, see the abovementioned IBA Guidelines). We would note that the discussion below suits both a foreign judgment that approves a class settlement and a foreign judgment deciding a class action on its merits.
24. As stated above, one of the relevant considerations for the purpose of incidental recognition of a foreign judgment is that the judgment was issued with authority. Presumably, this consideration should also be taken into account also with respect to a foreign judgment that was issued in a class action. However, in my opinion, in the case of a class action conducted abroad, and in view of the various interests that we addressed above, it would be appropriate to require that the foreign court also have a substantial connection to the dispute in the class action. This will reduce the concern for "ploy" by a foreign lead plaintiff and by the defendant in a court which they find convenient and which is unrelated to the dispute, while prejudicing the rights of the represented class. This appears to be the approach in Canada (see the Currie case, p. 328-329, where this test is referred to as a "real and substantial connection" to the forum wherein the judgment was issued; and also see, in English law: Mark Stiggelbout, “The Recognition in England and Wales of United States Judgments in Class Actions,” 52 Harv. Int'l L. J. 433, 464 (2011) (hereinafter: Stiggelbout)). Indeed, in various contexts it was ruled that in order to recognize a foreign judgment incidentally, a sufficient connection is required between the foreign  court and the subject of the proceeding, according to the rules of private international law jurisdiction, in force in Israel (see, for example, regarding the recognition of a bankruptcy order that was issued in a foreign country, MApp 10359/01 Sussman v. the Official Receiver, IsrSC 56(3), 160 (2002); Shlomo Levin & Asher Grunis, Bankruptcy 415 (3rd ed., 2010) (Hebrew)). In this regard, questions arise such as whether a significant part of the represented class is present in the foreign country. Another relevant question is whether the class members could have reasonably anticipated, at the time of engagement with the defendant, that future disputes between them would be decided by the foreign court (see: Currie, p. 332; and cf. LCA 10250/08 Katziv v. Zao Raiffeisenbank, para. 7 (March 18, 2010)). Obviously, also with respect to class proceedings, a litigant who cooperated in a proceeding conducted in the foreign court, and did not challenge the court's jurisdiction, may be deemed as having accepted the jurisdiction of the foreign court (see para 12 above).
25. As noted, an additional consideration that we addressed in regard to the recognition of a foreign judgment is whether the right to due process of the litigant against whom the recognition is requested has been violated. As we saw, in addressing the recognition of a judgment in a class action, the question that would normally arise pertains to the protection of the class members' rights. How must we examine whether the class members right to due process has been violated? United States case law customarily includes three elements in the right of the class members to due process, as follows (Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-812 (1985) (hereinafter: the Phillips Petroleum case)): first, receipt of proper notice regarding the proceeding, and being afforded an opportunity to participate therein; second, being afforded the opportunity to withdraw from the proceeding; and third, appropriate representation by the lead plaintiff (and his counsel) throughout the proceeding (some refer to these elements as "voice"; "exit" and "loyalty", by analogy to the discussion of shareholders rights in corporate law; see Issacharoff & Nagareda, p. 1701; John C. Coffee, Jr., “Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation,” 100 Colum. L. Rev. 370, 376-377 (2000)). These three elements, according to diverse United States case law, are the ones required to secure "due process" for the class members. These elements were recognized as the considerations to be weighed for the recognition of a class action decided by one court as binding the class members in a class action that is heard by another court (see, e.g.: In re Diet Drugs Prods. Liab. Litig., 431 F.3d 141, 145 (3d Cir. 2005) (hereinafter: the Diet Drugs case)); Gotthelf v. Toyota Motor Sales, U.S.A., In., 525 Fed. Appx. 94 (3d Cir. 2013) (hereinafter: the  Gotthelf case)); Debra Lyn Bassett, “U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction,” 72 Fordham L. Rev. 41 (2003)); this is also the common approach in Canada, see the survey in Brown, p. 231-234; also see IBA Guidelines p. 14 and 26-27; Stiggelbout p. 470 and 499-500).  
26. I shall briefly review each of the three aforesaid elements. Regarding a proper notice of the proceeding, it seems there is no need, in the matter at bar, to set hard and fast rules regarding the question what would be considered sufficient notice. In Canada, it was held that personal delivery of notice to each one of the class members is not required (see Canada Post Corp. v Lépine 1S.C.R. 549, para. 43 (hereinafter:  the Lépine case)). On the other hand, there is   a view that personal delivery of notice to each class member is preferred, whenever possible (see: IBA Guidelines p. 27). Obviously, the costs of such publication or delivery of notice should be considered, according to the circumstances of the matter. Regarding the content of the notice, it must include a description of the legal proceedings and the settlement (if any), and an update of the class members of their rights and the expected implications of the proceeding for them. Furthermore, they should be updated regarding their right to appear before the foreign court and to object to a settlement reached there (see: the Lépine case para. 45;the Phillips Petroleum case p. 812).

The right of a class member to withdraw from the class has also been recognized as a central aspect of the right to due process. (see: Currie, p. 333-334). The notice delivered to the class members should also inform them of that option (see: IBA Guidelines, p. 27).

As for the condition that the class members must be adequately represented, in the legal literature we find the opinion that claims of inadequate representation should focus upon conflicts of interests between the lead plaintiff (and his counsel) and the class members, in whole or in part, or conflicts of interests among the class members, as distinct from arguments that representation was inadequate because the compensation awarded by the foreign court is insufficient on its merits, whether by a judgment or by a settlement (see the article of Issacharoff & Nagareda; and also see IBA Guidelines, p. 26; Stiggelbout, p. 474-475; the Gotthelf case, p. 102-103; and also cf: Restatement of the Law, Second, Judgements, para. 42(d)-(e)). A possible conflict of interests may derive from a difference in the applicable law in each one of the countries. If Israeli law favors the class member as compared to the applicable law in the foreign country, a settlement abroad awarding uniform compensation to all class members may raise a concern of improper representation of the class members in Israel. This is the case, inasmuch as uniform compensation will result in the transfer of wealth from the class members in Israel to the class members abroad. In such case, it may not be proper to negotiate on behalf of all of the class members (both in Israel and abroad) in their entirety (see: Issacharoff & Nagareda, p. 1681-1683; Lépine, para. 56; Wolfert v. Transamerica HomeFirst Inc., 439 F.3d 165, 173 (2d Cir. 2006) (hereinafter: the Wolfert case)). Obviously, additional differences among class members in each of the various countries may also lead to conflicts of interests. Similarly, a settlement whereby some of the class members are treated differently, while the whole class was represented as one by a single lead plaintiff, raises concern of misrepresentation of that part of the class (see: Weizenbluth, p. 386-387).

27. Nevertheless, it would seem that an examination of the compensation level and other terms and conditions of a class settlement that was certified overseas, on their merits, should not be ruled out when such compensation, terms, and conditions clearly and manifestly deviate from what is reasonable (see IBA Guidelines, p. 14, where it was recommended that such an examination be conducted when compensation is "patently inadequate"; and also cf: Celia Wasserstein Fassberg Foreign Judgments in Israeli Law – Deconstruction and Reconstruction, p. 76-77 (1996) (Hebrew)). In extreme instances, it would seem that recognition of a foreign judgment in a class proceeding may be denied for repugnance to public policy (see: Stiggelbout, p. 471-472).

28.Another issue that arose in United States case law concerns the circumstances in which a party will be permitted to raise a claim that the right of the class members to due process was not properly protected ina class proceeding heard in another court. Various opinions have been expressed on this issue. According to one approach, such an “indirect challenge” of the proceeding at the other court may be permitted only if no fair opportunity was given to raise the said claimsin the challenged proceeding. In other words, according to this approach, it is enough that an opportunity was available – even if not exploited -- in the challenged proceeding, in order to bar an “indirect challenge” of the outcome of the proceeding (see the majority opinion in Epstein v. MCA, Inc., 179 F.3d 641, 648-649 (9th Cir. 1999)). Conversely, a different position was also expressed in United States case law whereby an indirect challenge of class proceedings should be permitted in a broader spectrum of cases. According to this position, the possibility of claiming that a defect occurred in a class action decision will be barred only vis-à-vis a party who appeared at the challenged proceeding, and only in regard to claims that he raised and that were explicitly decided (see the dissenting opinion of Thomas, J. in Epstein, ibid., at p. 655). According to a third opinion (which may be referred to as the middle approach), if various claims in connection with the right of the class members to a due process were heard and decided by the court hearing the challenge, each party, including a party who did not appear himself at the other court, will be barred from raising the same for a second time in the framework of an indirect challenge. Thus, if a member of the class objects to a class settlement at a foreign court and the foreign court explicitly addresses his claims and rejects them, any other member of the class will also be barred from raising the same claims in an Israeli court (see the dissent of Wiggins J., In re Epstein, ibid., at p. 651;. Diet Drugs, at p. 146; and also see: Wolfert, at p. 172, in which the position was expressed that the class member will be barred from raising in an indirect challenge a claim that was heard and decided in the challenged proceeding, even if the claim was raised therein by the defendant; for a survey of the various positions, see: Issacharoff & Nagareda, at pp. 1652-1653 and pp. 1714-1718, and see: Patrick Wooley, “Collateral Attack and the Role of Adequate Representation in Class Suits for Money Damages,” 58 U. Kan.. L., 917 (2010); also see: IBA Guidelines, at p. 25).

In the matter before us, there is no need to decide among the different approaches. Suffice it to say that weight should certainly be afforded to the foreign court’s decision concerning claims of a denial of due process by the class, if these claims are raised for a second time in an Israeli court. In any event, it appears that according to all of the approaches described above, when the party who raises claims of a denial of due process to the class members is the same party who raised those claims in the foreign court (as occurred in the case at bar), decisive weight should be afforded to the fact that his claims were rejected by the foreign court. In such a case, the rulings of the foreign court may be deemed as establishing a quasi “collateral estoppel” vis-à-vis the party whose claims were rejected, which prevents him from trying his luck for a second time by raising the same claims. In such a case, the party seeking class certification in Israel, who is barred from claiming against defects in the foreign judgment, may also be deemed as lacking a personal cause of action to represent the class members in Israel. See Issacharoff & Nagareda (at p. 1715-1716):

“At the very least, adaptation of preclusion principles for collateral attacks should guard against the situation of a literal ‘do-over’. It would be intolerable to allow a collateral-attack plaintiff to escape the binding effect of a class settlement by raising the same structural defects in the class representation that she previously had raised on direct review in the original court and where she had lost on that precise point… Clearly, there must be finality where the very same class member made the same structural claims in the form of an original objection in the rendering court. No plausible conception of adequate representation can countenance a literal re-presentation of the same structural claim collaterally”.

29.A further matter that should be emphasized pertains to the court’s involvement when deciding whether to recognize a foreign judgment in a class action. In regards to recognition of a foreign judgment that is not in a class action, it was held that “the process of recognition of the foreign judgment, checking all of the recognition conditions, need not be performed in each and every case, and such an examination of the fulfillment of a condition or the existence of a defense against recognition will be performed in accordance with the claims of the party opposing recognition” (the Basilius case, at p. 404, emphasis original – A.G.), as an expression of the adversarial approach prevailing in Israel. However, it is highly doubtful that such an approach is appropriate when we are concerned with class proceedings. It should be borne in mind that, usually, the class members will not have an interest in appearing before the court and raising claims in connection with the consequences of the foreign judgment, due to the low value of the personal cause of action to each of them. Moreover, there is also no assurance that the claims of possible harm to the class members will be presented properly by the party seeking class certification, since the issue of recognition of the foreign judgment will often arise before class certification and before a ruling that the petitioner represents the class members in an appropriate manner and is eligible to act as lead plaintiff. Therefore, and in view of the fact that we are concerned with the rights of persons absent from the courtroom, considerable supervision and involvement are required by the court (see: the Raynolds case, at p. 279-280).

30.A further comment is that when dealing with a proceeding concerning securities, it is necessary to consider sec. 35Z of the Securities Law, whereby, “If action was brought before a Court in Israel under any enactment, on grounds that derive from an interest in the securities of a foreign corporation, the Court may – on application by a party – stay the proceedings in the action, if it learns that action was brought before a Court abroad on the same grounds or on similar grounds, and that until a judgment that is no longer subject to appeal is handed down in that action”. This provision reflects the legislature’s inclination to respect and not frustrate proceedings that are being conducted at a foreign court in connection with companies whose securities are “dual-listed” (see: Amir Licht “Dual Listing of Securities,” 32(3) Mishpatim 561, 617 (2002) (Hebrew)). However, if the proceeding in the foreign country ends in a judgment, the recognition and enforcement thereof must be performed pursuant to the provisions of the Foreign Judgment Enforcement Law. In the proceeding at bar, there is no need to decide whether, in view of Section 35Z above, there is room to relax the conditions for recognition or enforcement of a foreign judgment in regard to a company whose securities are “dual-listed”. 

31.To complete the picture, I will note that the issue of recognition of a judgment in a class action may also arise in the court in which the cross-border class action is heard. In the United States, it has been held that when  a class certification, in which some of the class members are located overseas, is concerned, it is necessary to consider, at the class certification stage, whether foreign courts will recognize the outcome of the proceeding. If the chances that the judgment in the class action will be recognized in the foreign country are not high, this constitutes grounds for not certifying the class action with respect to class members located in such country, in the context of the requirement that for purposes of class certification, it is necessary to examine whether it is the most efficient method of deciding the dispute (see: In re Vivendi Universal, S.A. Sec. LitigIn re Alstom SA Sec. LitigThus, in one case that arose in the United States, the court denied certification of a class action against members of the class located in various countries, including Israel (Anwar v. Fairfield Greenwich, 289 F.R.D. 105, 121 (2013)).

32.If a foreign judgmentin a class action is recognized (indirectly), it is necessary to further enquire as to its significance for the proceeding being heard in Israel. Aside from the question of the foreign judgment’s consequences under the applicable law of the court that issued it (which must be proved as a fact, or if necessary, by recourse to the parity of laws presumption), the significance of the foreign judgment will also be decided according to Israeli law (see para.15, above). It should be borne in mind that if the proceeding is at the stage of the hearing of the motion for class certification, denial of the motion does not establish res judicata vis-à-vis the class members (and see: Smith v. Bayer Corp., 131 S. Ct. 2368, 2379-2382 (2011) (the Smith case)). The consequences of recognition of the foreign judgment affect only the party filing the class certification motion. It may of course be wondered what is the practical reason for the filing of an additional, identical class proceeding by another class member, but this is the outcome whenever a class certification motion is denied (although it has been ruled that the denial of a class certification motion may also have certain repercussions for a later class certification motion concerning the same issue and filed by another lead plaintiff; see CC (Tel Aviv District Court) 1043/00 Rosenfeld v. The Social Security Covenant Implementation Organization (October 24, 2002) (Justice E. Hayut), appeal denied in CApp 10688/02 (March 27, 2003); CApp 2505/06 Becker v. Cellcom Israel Ltd., paras. 16-17 (December 9, 2008)).

In addition, if the party seeking class certification (or the lead plaintiff, if the class action has been certified) has asserted his claims at the foreign court and his claims there were rejected, as we have seen above, he himself will be barred from raising these claims for a second time in the Israeli court (see the discussion in para. 28). In such a case, too, the consequences of the recognition of the foreign judgment apply only to him, and it is possible that if another member of the class files a new proceeding on the same issue, the court will be required to address the claims regarding the due process claims of the class members on the merits.

33.To summarize our discussion thus far: a foreign judgment in a class action may be recognized incidentally. This recognition is conducted pursuant to sec. 11(b) of the Foreign Judgment Enforcement Law, according to which the foreign judgment may be recognized if “it is lawful and just to do so”. A first consideration that must be taken into account is whether the foreign judgment was issued by a court with jurisdiction to hear the proceeding. In this context, it is also necessary to examine whether the foreign court has a substantial link to the issue being heard in the class action. The participation of the lead plaintiff or the party seeking class certification in the proceeding in the foreign court may be deemed as consent to the foreign court’s jurisdiction. A further consideration is whether the right to due process of the members of the represented class was violated. In this regard, three main elements must be addressed: serving proper notice to the class members of the class proceeding in the foreign court and affording the class members an opportunity to participate therein; giving the class members an opportunity to withdraw from the proceeding; and adequate representation of the class members by the lead plaintiff (and his counsel) at the foreign court throughout the conduct of the proceeding. Examination of the outcome of the class action in the foreign court on the merits (or examination of a settlement that was approved in a foreign country on the merits) will only be performed in cases in which the outcome is clearly and manifestly unreasonable. Similarly, the foreign judgment will be denied recognition for repugnance to public policy only in exceptional cases. Weight should further be afforded to the fact that the claims being raised against recognition of the foreign judgment were already heard and decided by the foreign court. In addition, decisive weight should be afforded to the fact that the party raising the claims against recognition of the foreign judgment in Israel raised these claims himself in the foreign court, and his claims there were rejected.

If the court finds that the foreign judgment should be recognized, what is its significance for the proceeding being held in Israel? The consequence of the foreign judgment pursuant to the foreign law is a fact that needs to be proven, and insofar as necessary, the parity of laws presumption may be drawn on. According to Israeli law, if the proceeding in Israel is a class proceeding which is at the stage of class certification, denial of the class certification motion does not establish res judicata vis-à-vis the class. In such a case, recognition of the foreign judgment applies only to the party filing the class certification motion. In a case in which the foreign judgment is recognized without hearing the claims in connection with the right of the class to due process on the merits, because the party seeking class certification (or the lead plaintiff) are barred from raising the same, recognition of the foreign judgment is applicable only to the party seeking class certification (or the lead plaintiff).

From the general to the particular

34.There is no doubt that the manner in which the motion for leave to appeal at bar was heard is irregular. The proceeding underwent many twists and turns while it was pending before this court. In this framework, the parties submitted evidence regarding the developments that occurred over time in a manner which is inconsistent with the regular conduct of a proceeding in a court of appeals (although it is emphasized that the parties did not object to the filing of this evidence). There is a dispute between the parties on the adequacy of the notice that was given in Israel regarding the class proceeding in the United States, on the opportunity that was given to the class members in Israel to withdraw from the Settlement, and on the adequate representation of the class members in Israel before the foreign court. Hence, the question arises as to whether it was correct to remand the case to the trial court in order that it hear such new evidence and decide these disputes between the parties.

35.However, ultimately I reached the conclusion that there is no point in remanding the case to the trial court. Based on the material before us, it appears that it may clearly be ruled that the foreign judgment that was issued in the class proceeding in the United States should be recognized, and that such recognition leads to denial of the Motion for Class Certification in Israel. First, and with regards to the issue of jurisdiction, the Petitioner appeared at the court in the United States and raised his claims on the merits in his objection to approval of the Settlement. The Petitioner did not refer us to where he denied the jurisdiction of the court in his pleadings that were filed in the United States  (I would add that inspection of the Petitioner’s claims in the supplementary pleading reveals that he, indeed, did not deny the jurisdiction of the court in the United States to hear the proceeding; paras. 50-52 of the supplementary pleading on behalf of the Petitioner, and para. 12 of the Petitioner’s response to the supplementary pleading on behalf of the Respondent). The Respondent referred us to a pleading that was filed by the Petitioner with the California Federal Court in which he explicitly asserted that his claims against the Settlement ought to be heard in the United States and not in Israel (para. 32 of the supplementary pleading on behalf of the Respondent, which refers to Chapter III of Exhibit 27 to the supplementary pleading on behalf of the Petitioner). By his said conduct, and in the absence of an argument from the Petitioner on the issue of the convenient forum for a factual hearing at the trial court, he should be deemed as having agreed to the jurisdiction of the court in the United States It also appears that there can be no real dispute that the class proceeding has a substantive link to the United States in view of the fact that it concerns trade in securities of a United States company which was mainly performed in the United States.

36.With regard to the Petitioner’s claims of a violation of the right of the class members in Israel to due process, as specified above, decisive weight should be afforded to the fact that the Petitioner himself already raised these claims before the California court, and that they were heard there and rejected. I will briefly review the California court’s rulings on the matter (decision of February 18, 2014, Exhibit 29 to the supplementary pleading on behalf of the Petitioner). After having heard the Petitioner’s claims at the hearing held before it, the California court found that the Settlement was reasonable and fair vis-à-vis investors from Israel. The court added that the Petitioner’s claims regarding inadequate representation of the class members were not proven. In this context, it was held that the Petitioner did not prove that the class members from Israel ought to receive higher compensation due to a difference between securities law in Israel and such law in the United States The California court referred to the ruling of the District Court in Israel, whereby the law that applies to the Motion for Class Certification in Israel is United States law. The California court further added that the class proceeding in Israel is still in its infancy. Under these circumstances, the California Federal Court ruled that the Petitioner had “a long road ahead” in order to succeed in the proceeding that he had initiated in Israel. The California court’s said conclusion appears quite logical under the circumstances. The California court also referred in its decision to the relatively high rate of participation of investors from Israel in the Settlement. It transpires from the data presented in such decision that the rate of participation of Israeli investors in the settlement was considerably higher than their percentage in the entire class represented in the class proceeding in the United States It was held that these data reveal that the class members in Israel were aware of the Settlement, and also that they undermine the Petitioner’s claims in connection with the manner of representation of these class members. The court also rejected the Petitioner’s claim in connection with the implications of the judgment in the Morrison case. Finally, the United States court ordered the publication of an additional notice regarding the fact of the Settlement among the class members in Israel, and extension of the date for the filing of the Entitlement Forms by them.

37.As we can see, the Petitioner’s claims were heard in detail by the California court and rejected. Under these circumstances, there is no room to permit the Petitioner to raise his claims yet again in the Israeli court, even according to the broadest approach to an “indirect challenge” of a class proceeding (see the discussion in para. 28 above). Indeed, there is no claim before us on the part of any member of the class in Israel, apart from the Petitioner, asserting that he did not receive adequate notice of the class proceeding in the United States, or that his rights were violated in any way. All we have before us is the Petitioner whose claims were already raised and rejected by the foreign court. Hence, there is no reason to accept the Petitioner’s claims regarding a violation of the class’s right to due process, and there is also no reason to remand the case to the trial court to hear his claims. I will add that the Petitioner has no serious, arguable claim with regards to the body of the terms and conditions of the Agreement, which claim, as aforesaid, will only be heard in exceptional cases. The conclusion is that there is no impediment to recognizing the foreign judgment pursuant to sec. 11(b) of the Foreign Judgment Enforcement Law.

38.Notwithstanding my said conclusion, I will not deny that I am dissatisfied with the manner in which the Respondent conducted itself. In the Settlement itself, no explicit reference is made to the fact that a considerable portion of the class members are persons who are located in Israel and purchased shares of the Respondent on TASE. This matter was subsumed in the manner in which the represented class was defined (sec. 1.3 of the Settlement, whereby the class members are any person who purchased shares of the Respondent in the relevant period “on any domestic or foreign exchange or otherwise”). The manner in which it was stated that the notices of the fact of the Agreement would be announced in the newspapers is particularly puzzling: “once in Investor’s Business Daily, once in Globes, and once over the Business Wire” (sec. 6(b) of Appendix A to the Agreement), without stating that the second of the three newspapers is an Israeli newspaper. In addition, on the Entitlement Form the class members were required to declare that they had not initiated a proceeding in connection with the subject matter of the Settlement, and that they are not aware of such a proceeding having been filed on their behalf (sec. IV of Appendix A2 to the Settlement). Clearly, this declaration is not true with respect to the class members in Israel in view of the filing of the Motion for Class Certification in Israel. Moreover, in one of the pleadings that was filed in the framework of the hearing on approval of the Settlement (on behalf of the lead plaintiff in the United States), an attempt was made to convince the court that the class is homogeneous, and then too, without saying a word about the difficulty presented by the fact that a considerable portion of the class members is located in another country, and in whose regard there is an additional class proceeding (Exhibit 7 to the supplementary pleading on behalf of the Petitioner).

Moreover, it transpires from the documents that the Respondent attached to the supplementary pleading on its behalf, that it filed several affidavits with the California court regarding the manner in which the Settlement was announced and regarding the pace of implementation thereof (Exhibit 2 to the supplementary pleading on its behalf). In the first of the affidavits that were attached, of December 16, 2013, no explicit mention was made of the existence of the class members in Israel. Then, too, the notice in the “Globes” newspaper was described alongside the other notices that were published in the United States, without stating that this notice was made in Israel. On December 30, 2013, the Petitioner filed his objection to the Settlement (Exhibit 20 to the supplementary pleading on behalf of the Petitioner). Subsequently, on January 16, 2014, an additional affidavit was filed by the Respondent, and this time providing substantial details regarding the existence of the class members in Israel, the notices that were sent to them, and the rate of response on their part according to the Settlement. This affidavit finally stated that the “Globes” newspaper is a newspaper distributed in Israel, and that this notice of the settlement was made in Israel. This conduct raises a suspicion that, prior to the filing of the objection by the Petitioner, the Respondent, together with the lead plaintiff in the United States, tried to underplay the fact of the existence of the class members in Israel.

Indeed, at the time of the hearing in the California court on the Petitioner’s objection to approval of the Settlement, the court expressed irritation that it was not aware of this problematic aspect of the Agreement (pp. 56, 62 and 68-69 of the transcript of the hearing of February 14, 2014, Exhibit 28 to the supplementary pleading on behalf of the Petitioner). The court was also troubled by the adequacy of the notice that was given to the class members in Israel, and even informed the Respondent of the concern of a future indirect challenge of the approval of the Settlement (ibid., at p. 24, line 22ff., and at p. 63). In view of the court’s comments at the hearing, the Respondent published an additional notice of the Settlement in Israel, this time in Hebrew, and the date for the filing of the Entitlement Forms by the class members in Israel was also extended.

39.In my opinion, there is no doubt that the Respondent ought to have clearly informed the California court of the problem presented by the existence of the class members in Israel, at its initiative and at the stage of the filing of the Settlement for the court’s approval. A separate and in-depth hearing on the Settlement and the motion to approve it ought to have been dedicated to the issues concerning the existence of no few class members from outside of the United States However, although this was not done, ultimately the California court was informed of the foregoing difficulty, it explicitly addressed it, and decided the issue. This was done following the objection that the Petitioner filed to the Settlement, and to his credit, it is noted that the objection led to the publication of an additional notice of the settlement in Israel and to the extension of the date for the filing of the Entitlement Forms. In any event, once the California court addressed the matter, and decided as it did, there is no room to permit the Petitioner to try his luck by raising the same claims once again in Israel.

40.Having reached the conclusion that the judgment approving the Settlement in the class proceeding in the United States should be recognized, the question arises as to the implications thereof for the Motion for Class Certification in Israel. The Respondent filed an expert opinion in respect of the significance of the judgment in the United States, but it appears that in this regard too, there is no point in remanding the case to the trial court for a factual hearing of the issue. The fact that the foreign judgment establishes res judicata pursuant to United States law is quite clear in view of the provisions of the Settlement, and in view of the definition of the represented class according to the Settlement. The Petitioner has no good claim in connection therewith. It is noted that the judgment that was issued in the United States is final (it is noted that another class member filed an appeal from the judgment with the Federal Court of Appeals and the appeal was denied by consent: Exhibit 1 to the supplementary pleading on behalf of the Respondent). Although the California court ruled that it was not deciding upon the consequences of approval of the Settlement in respect of the proceeding being held in Israel, this is inconsequential. Leaving the significance of a judgment to a proceeding in another country as an open issue to be decided by the court in the other country is a technique used by courts from time to time (see the survey in Brown’s article, at pp. 224-226; and see the Smith case, at p. 2375). The question of the significance of the foreign judgment in Israel is determined by the court in Israel, as we shall now do.

With respect to the implications of the foreign judgment in Israel pursuant to Israeli law, the proceeding is at the class certification stage. Therefore, the implications of recognition of the foreign judgment are vis-à-vis the Petitioner only, and not vis-à-vis the class in Israel. This is particularly true when the claims regarding violation of the right of the class members to a process were not heard by us on the merits, since the Petitioner himself is barred from raising the same.

41.We find, under the circumstances created, there is no point in remanding the case to the trial court for a factual hearing on the parties’ claims. The parties were given a full opportunity to present their claims on the matter before us. It should be recalled that a court of appeals has broad jurisdiction to decide disputes between the parties, and in this context the court of appeals is granted jurisdiction to issue any decision that may be issued by the trial court, and to issue a decision in favor of the respondent even without the filing of an appeal or a counter-appeal on its part (see sec. 462 of the Civil Procedure Regulations, 5744-1984).

42.However, I would reemphasize that as aforesaid, in my judgment no examination was performed on the merits of the claims in connection with the right of the class members in Israel to due process, since the Petitioner himself is barred from raising such claims after he raised them in the United States and they were rejected there. Therefore, if, in the future, these claims are raised by another member of the class in Israel, the competent court may be required to address the same on the merits. In such an examination, weight will probably also be afforded to the rulings made at the California court (and see para. 32 above). I, of course, express no position with regard to the fate of such a proceeding.

Final comment

43.In CApp 3441/01 Anonymous v. Anonymous, IsrSC 58(3) 1, 23 (2004), Chief Justice A. Barak stated (not in connection with class actions):

“In today’s reality, many Israeli citizens litigate outside of Israel. We are indeed living in a world that is becoming ‘one large village’ (LCA 2705/97 Hageves A. Sinai (1989) Ltd. v. The Lockformer Co., at p. 114). In this reality, motions to recognize foreign judgments of all types and varieties are becoming commonplace. The various dilemmas arising from the issue must be regulated in legislation. The dilemmas revolving around this proceeding will prove the extent to which the issues are complex, and ought to be given a detailed and structured legislative solution”.

With this I concur. The manner in which foreign judgments in class actions are recognized ought to be regulated in legislation. Thus, the certainty with regards to the conditions required for recognition of a foreign judgment in a class action will increase, and the parties will be able to plan their steps accordingly.

44.In conclusion, I propose to my colleagues that we hold that the Settlement that was approved in the class proceeding in the United States be recognized in Israel for purposes of the class proceeding in Israel. Hence, the motion for class certification that was filed in Israel should be denied, and we so order. In view of the Respondent’s conduct, which I specified above, I propose that we make no order for costs.

President (ret.)

Justice U. Vogelman:

 

I concur.

                                                           

 

Justice N. Sohlberg:

 

I concur.

                                                           

 

 

Decided as stated in the judgment of President (ret.) A. Grunis.

 

Given this day, Nissan 13, 5775 (April 2, 2015)

 

 

 

President (ret.)                        Justice                         Justice

 

In the Supreme Court	CA 7996/11
Sitting as a Court of Civil Appeals

 

 

Before:	Justice E. Rubinstein Justice Y. Danziger Justice Z. Zylbertal
The Appellants:	1. Safecom Ltd 2. David Zilberberg
v.
The Respondent:	Ofer Raviv
	Appeal against the Haifa District Court's judgment of August 28, 2011 in CF 542-04-09, given by His Honor Judge Dr. A. Zarnakin
Date of session:	Cheshvan 6, 5774 (October 10, 2013)
On behalf of the Appellants:	Adv. Nahum Gabrieli
On behalf of the Respondent:	Adv. Tamir Afori

JUDGMENT

 

Justice Y. Danziger

 

This is an appeal of the judgment of the Haifa District Court (His Honor Judge Dr. A. Zarnakin) of August 28, 2011 in CF 542-09-09, dismissing the Appellants' claim against the Respondent for the infringement of copyright in their technical drawings.

 

Factual Background

 

1.         Appellant 1, Safecom Ltd (hereinafter: "Safecom"), develops and markets products for the electrical backup of cable TV broadcasting systems, and the Appellant 2, David Zilberberg (hereinafter: "Zilberberg") is its manager and one of its shareholders. Zilberberg became acquainted with the Respondent when the latter sought to market Safecom's products to a company for which he worked, and he also connected Zilberberg to an American company, Innovative Solutions 21, Inc. (hereinafter: "the American company"), which led to the marketing of Safecom products in the USA. On June 18, 2002, an agreement was made between Safecom and the American company according to which the American company would be the exclusive distributor of Safecom products (hereinafter: "the Agreement"). The Agreement provided that ownership of all copyright, patents and other intellectual property rights connected with the products, including graphics, sketches and models, that were developed by Safecom would be retained by it. The Respondent had no formal status in the American company, but he was involved in the technical matters associated with marketing Safecom's products in the USA, and, in that context, he also took part in the preparation of technical drawings of Safecom products. In May 2005, the Agreement was terminated by Safecom, and in 2008, it learned of the filing of a patent application in the USA by the Respondent together with the American company's president, which concerned a voltage backup system for cable systems. In view of Safecom's complaint that the drawings underlying the patent application infringed its copyright in the drawings of its products, it filed suit in the District Court. By consent of the Respondent, the court awarded a provisional injunction. An objection filed against the registration of the American patent registration was dismissed.

 

2.         Safecom asserted that the Respondent had copied 14 original drawings that Zilberberg had prepared as part of a presentation for the Safecom products, which was furnished to the Respondent in 2003, when the agreement was still in force. According to it, the drawings that Zilberberg prepared were protected by copyright and owned by it, while the Respondent's drawings were absolutely identical and had been copied "one to one" and, as such, constituted an infringement of its right of reproduction. In order to emphasize the copying, Safecom pleaded that its drawings contained a mistake in the presentation of the switch box, and that mistake had been copied by the Respondent.

 

3.         The Respondent, for his part, asserted that the claim was governed by American law because the alleged infringement had been committed in the USA, and since that law had not been proven, the claim should be dismissed. According to him, under American law the claim would be dismissed because of the applicable American rules of fair use. In regards the very infringement, the Respondent pleaded that since the act was governed by the Copyright Act, 1911 (hereinafter: "the Old Law") it was first necessary to prove that the alleged infringement also constituted an infringement under the Copyright Law, 5768-2007 (hereinafter:  "the New Law"). According to him, under section 21 of the New Law, the copying of a work that is deposited for public inspection constitutes permitted use and no infringement is therefore involved. As regards the alleged copying, the Respondent pleaded that there was no relevant similarity between the Safecom drawings and his drawings, either visual or substantial. According to him, there are approximately 32 elements in the patent application drawings, while in the presentation there are only 19. This is because of the difference between the technology used in order to manufacture Safecom's products and that presented in the patent application. The Respondent further pleaded that the similarity between the drawings lay in their common functionality in a manner that does not afford protection. The Respondent also pleaded that he was party to making the drawings and therefore had a right of ownership in the Safecom drawings, and that the Agreement did not apply to him because he was not an employee of the American company. The Respondent also filed a counterclaim, but since no appeal has been brought in respect of it, we need not refer to it here.

 

The District Court's Judgment

 

4.         The District Court first dismissed the Respondent's claim that the matter is governed by American law. The court held that the Respondent had received the presentation in Israel.  It was therefore reasonable to assume that the act of copying had also been performed in Israel, and it had not been proven otherwise. In any event, the court held that the Respondent did not dispute the court's jurisdiction to try the matter in accordance with domestic law when the provisional injunction application had been considered, and he was therefore estopped from pleading the same. As regards Israeli law, the court held that the Safecom drawings do indeed amount to a protected work, according to both the Old Law and the New Law. The court dismissed the Respondent's claim that the use he had made was permitted use under section 21 of the New Law since the section treats of  the use of works that have already been deposited for public inspection and not use which itself constitutes deposit for public inspection.

 

5.         As regards the alleged copying, the District Court first held that the Respondent was not a joint owner of the rights in Safecom's drawings, because, even if he was not one of the American company's formal officers, he did substantially function as such and the agreement should therefore be applied to him. The court nevertheless dismissed Safecom's claim that the Respondent had admitted copying the drawings. The court emphasized that the Respondent's claim with respect to the difference in the number of elements between Safecom's drawings and the drawings in the patent application had not been rebutted, and a visual similarity had therefore not been established. The court dismissed Safecom's claim with respect to copying the mistake in its drawings because, according to it, no mistake was in fact involved. Finally, the court held that because of the great functionality of the Safecom drawings, some similarity was obliged between drawings that sought to present a similar product, and Safecom's drawings, or a substantial part of them, had therefore not been copied.

 

            Hence, the appeal.

 

The Grounds of Appeal in Brief

 

6.         The Appellants – through their attorney, Adv. Nahum Gabrieli – argue that the District Court erred            when it held that there had been no copying in the instant case. According to them, they did not have to adduce direct evidence of copying the drawings because the law makes it possible to suffice with circumstantial evidence to prove copying. The Appellants assert that the access that the Respondent had to the drawings, which is not in dispute, together with the substantial similarity between their drawings and his, leads to the sole conclusion that there was copying. The Appellants emphasize the identical elements between their drawings and those of the Respondent that do not derive from the functional presentation of the products, like the same twists and turns in the lines that are shown on them. According to them, the Respondent himself admitted that there are many ways to draw the products concerned, and he even showed example drawings of similar systems that were different from the drawings in the instant case. Moreover, in principle it cannot be held that when functional technical drawings are involved, copying cannot necessarily be inferred. The Appellants add that the finding that the similarity between the drawings was not the result of copying is inconsistent with the relationship between the parties, as described above. Finally, the Appellants aver that the court was mistaken when it reviewed the substantial similarity on the basis of the number of elements appearing in each of the drawings, rather than a general impression of the substance of the part copied, which according to them, obliged the conclusion that there had been prohibited copying.

 

The Respondent's Reply in Brief

 

7.         The Respondent – through his attorney, Adv. Tamir Afori – argues that the District Court rightly distinguished between proving a visual similarity and establishing a substantial similarity. According to him, in the instant case there has not been copying, as a matter of fact, because even if it were established that he had access to Safecom's drawings, the court found, as a matter of fact, that there was no visual similarity between the works. According to him, in order to establish such a similarity, the Appellants should have produced an expert opinion insofar as the matter concerns a technical drawing. In any event, the Respondent asserts that there had been no copying of a substantial part that was original to the Appellants, and that the copying of parts of the work that are not original in any event does not amount to copying and to an infringement of any right of the work's owner. According to him, in the instant case works are involved, only parts of which are original, and it is necessary to carefully analyze whether the original parts that were copied constitute a substantial part of the Plaintiff's work. Since, in the instant case, functional works are involved, the respondent argues that only the identical copying of original parts should be regarded as an infringement of copyright. The Respondent emphasizes that after filtering out all the non-original parts of Safecom's drawings, what remains is at most a "copy" of curved lines that do not constitute a substantial part of the work.

 

8.         The Respondent adds that it was inappropriate to deny his rights in Safecom's drawings since he was a joint author of them because of the Agreement between Safecom and the American company to which he was not party, and it should therefore be held that he is a joint owner and joint author of the Safecom drawings. Furthermore, the Respondent asserts that it was inappropriate to hold that the law governing the infringement is Israeli law since the Appellants had not established that the infringement asserted by them was committed in Israel, and that burden rested with them. According to him, his agreeing to the award of a provisional injunction does not attest to his agreeing to conduct the principal case in accordance with Israeli law. Finally, the Respondent argues that even if he is not the owner of the Safecom drawings, he is still their joint author, and the use that he made of them is therefore a permitted use under section 27 of the New Law, which permits the author of an artistic work to make works that constitute a partial copying or derivative of it, even if he is not the owner of the right. Moreover, according to him, the use that he made of the drawings is also protected by virtue of section 20 of the New Law because it was done in legal administrative proceedings or, in the alternative, it was fair use under section 19 of the New Law.

 

9.         In the hearing before us an attempt was made to bring the parties to an overall understanding that would make the need for our ruling unnecessary, but that attempt was unsuccessful.

 

Discussion and Ruling

 

10.       This appeal raises questions at the very heart of copyright law, and that, essentially, address the foundations upon which the protection of works is based, and in particular, the matter of the author's originality; the distinction between idea and expression; and infringement of the right to copy the work. These questions are highlighted with regard to the protection of functional works, and they require elucidation and clarification. Having read the parties' summations and listened to their oral arguments in the hearing before us, I have reached the overall conclusion that the appeal should be allowed and the case should be remanded to the District Court in regard to the matter of relief. I shall also recommend that my colleagues do the same.

 

The Basis of the Protection of Works – Originality

 

11.       The requirement of originality has been recognized by this Court as a threshold for the existence of copyright in a work [for more on the originality requirement, see: Michael Birnhack, “The Requirement of Originality in Copyright Law and Cultural Control,” 2 Alei Mishpat 347, 352-355 (2002) (Hebrew) (hereinafter: "Birnhack")]. The development of the requirement in Israeli case law has been based on the provisions of the Old Law, despite the fact that the Hebrew version did not mention "originality", whereas the binding English version provides, in section 1, that copyright will be granted in respect of:

 

            "every original literary, dramatic, musical and artistic work…" [emphasis added  – YD].

 

            The requirement of originality was anchored in the New Law in section 4(a), which provides:

 

            "Copyright shall subsist in the following works:

            (1) original works that are literary works, artistic works, dramatic works or musical works, fixed in any form"  [emphasis added – YD].

 

12.       This Court reviewed the case law relating to the elements underlying the requirement of originality at length in CA 8485/08 FA Premier League Ltd v.  Israel Sports Betting Regulation Council (March 14, 2010) (hereinafter:  the Premier League case) [http://versa.cardozo.yu.edu/opinions/fa-premier-league-v-israel-sports-b.... It was held that the requirement of originality is analyzed on the basis of two main criteria – investment and creativity.

 

            In the scope of the investment criterion, the author must have invested certain labor in the work in order to gain the right to its rewards, similar to the theoretical basis for recognizing the right to "corporeal" property [see: the Premier League case, para. 26; CA 513/89 Interlego A/S v. Exin-Lines Bros SA, IsrSC 48(4) 133, 164 (1994) (hereinafter referred to as the Interlego case)]. This criterion is based on the labor approach and the theory of natural rights based on the teachings of the philosopher John Locke as theoretical justification for the grant of property rights generally and copyright in particular [for a broader discussion, see: Birnhack, pp. 373-375; Guy Pesach, “The Theoretical Basis for the Recognition of Copyright,” 31 Mishpatim 359, 386-391 (2001) (Hebrew) (hereinafter: "Pesach"); Justin Hughes, “The Philosophy of Intellectual Property,” 77 GEORGETOWN L.J. 287, 297-98, 302-10 (1988); Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” 102 YALE L.J. 1533 (1992)].

 

            In the context of the creativity criterion, which is based on the rationale according to which the purpose of copyright law is to enrich the creative world and the range of expressions available to the public, the nature of the investment, independently of its quantity, must be considered in order to show that it contributes to that purpose [see: Premier League, para. 27; Interlego, pp. 164-165]. This approach is based on a more social concept of copyright but, nevertheless, also on a utilitarian-economic approach, according to which a balance should be made between the cost – the incentive to be given to the author in the form of the monopoly granted to him in respect of the use and control of his work -- and the benefit of safeguarding the public domain for future work [see: Pesach, pp. 361-374; William M. Landes & Richard A. Posner, “An Economic Analysis of Copyright Law,” 18 J. LEGAL STUD. 325 (1989)].

 

            I would add that, in my opinion, in the scope of the originality requirement three subordinate elements should be identified, and in addition to the investment criterion and the creativity criterion, the origin criterion should be analyzed. By this I mean a requirement that the work should originate in the author and that it should not be based on another work – or in the words of my colleague Justice E. Rubinstein "original, meaning independent" [see: CA 3422/03 Krone AG v. Inbar Reinforced Plastic, IsrSC59(4) 365, 378 (2005); CA 360/83 Strosky Ltd. v. Whitman Ice Cream Ltd., IsrSC 40(3) 340, 346 (1985) (hereinafter: the Strosky case). For further on originality as origin, see Birnhack, p. 355-372].

 

13.       This Court has also considered the question of the nature and quantity of the originality requirement's elements that suffice to realize it. In respect of the investment criterion, it has been held that all that needs to be proven is a minimal investment of some human resource [see: Interlego, p. 173; Premier League, para. 34]. On the other hand, a quantitative definition of the requisite creativity is somewhat more complex and it appears that this Court has not yet fashioned a single formula for its realization.  Nevertheless, the definition of the requisite creativity for the protection of a work has been delineated in case law by a process of elimination. Thus, it has been held that the creativity criterion does not impose a particularly high threshold for the author, and that slight and even worthless creativity might sometimes suffice [see: Interlego, p. 173; CA 23/81 Hirschco v. Orbach, IsrSC 42(3) 749, 759 (1988) (hereinafter: the Hirschco case); CA 2687/92 Geva v. Walt Disney Co., IsrSC 48(1) 251, 257 (1993) (hereinafter: the Geva case)]. It has also been held that the work need not be novel in comparison with existing works in the same sphere [see Strosky, p. 257; Geva, p. 257].

 

14.       Because of the lack of any cohesive definition of the creativity requirement, and because of the absence of any controversy with regard to the definition of the investment necessary for the protection of a work, the possibility has been raised that a substantial investment in a work can compensate for a lack of creativity in such a way as will meet the requirement of originality and establish protection for the work. However, that approach was rejected by this Court long ago in Interlego, in which the approach of American law was adopted, as expressed in the American Supreme Court's judgement in Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991) (hereinafter: the Feist case), according to which mere investment is not sufficient for the copyright protection of a work [see: Interlego, p. 165, 169; Premier League, paras. 36-38].

 

15.       To sum up the foregoing, the case law laid down by this Court is that for the grant of copyright protection in respect of a work, it must be established that an original work is involved, three subsidiary elements being analyzed – the origin criterion, the investment criterion and the creativity criterion – the existence of only one element being insufficient for the purpose of establishing originality.

 

The Protected Part of the Work – The Idea/Expression Dichotomy

 

16.       Before I move on to discuss the originality required for the protection of functional works, I wish to consider another basic rule concerning the copyright protection of works – the distinction between idea and expression. A basic principle of copyright law is that the idea that underlies a work will not be protected by the right, and that the protection is afforded only to the way in which it is expressed. This rule is embodied in section 7B of the Copyright Ordinance, which governs the instant case, and was subsequently anchored in section 5 of the New Law, which provides:

 

            "Copyright in a work as provided in section 4 shall not extend to any of the following, but copyright shall apply to the way in which they are expressed:

 

            (1)       an idea …"

 

17.       This Court has consistently emphasized the said distinction in its case law [see, for example: CA 10242/08 Mutzafi v. Kabali, (October 10, 2012), para. 24 (hereinafter:  the Mutzafi case); CA 2173/94 Tele Event Ltd. v. Golden Channels & Co., IsrSC 55(5) 529, 544 (2001) (hereinafter: as the Tele Event case); Strosky, p. 346; CA 139/89 Harpaz v. Achituv IsrSC 44(4) 16, 19 (1990)]. This distinction is based on the concept that the grant of protection to mere ideas would frustrate one of the major purposes of copyright law – the encouragement of creation and leaving sufficient "raw material" in the public domain [see: Tony Greenman, Copyright, vol. I, 75 (second ed., 2008) (hereinafter:  "Greenman")]. The distinction between idea and expression, in the context of textbooks for example, has sometimes led to the conclusion that the author's right has been infringed because of the fact that the expression of the method of study created by him (which constitutes a mere idea) has been copied [see, for example: Hirschco], but also sometimes to the opposite conclusion that all that has been "copied" is the actual idea that underlies the work [see, for example: Mutzafi].

 

18.       The rule that an idea is not protected and only the way in which it is expressed is protected overlaps the rule that facts per se are not protected. This rule finds expression when compilation works are involved, and it has been held that such works will only be protected insofar as the choice and arrangement of the raw materials – which constitute unprotected facts – meet the requirement of originality (see: Interlego; CA 2790/93 Eisenman v. Kimron, IsrSC 54(3) 817 (2000); Tele Event]. This requirement is  expressed in section 4(b) of the New Law, which provides:

 

            "… originality of a compilation means the originality of the selection and arrangement of the works or of the data embodied therein".       

 

            However, in view of the rising status of the creativity requirement and the determination that investment does not suffice to prove originality, it has been held that, in certain cases, a "compilation work" will not be sufficiently original and will therefore not gain protection [see: Premier League, paras. 51-54]

 

19.       We can see that the distinction between idea and expression is of major importance in copyright law, and that, in certain senses, it also overlaps the requirement of originality that underlies the copyright protection of works. The overlap between these two basic principles of copyright law is particularly relevant when functional works are involved, as will be explained below.

 

The Merger Doctrine and Functional Works

 

20.       Having regard to the distinction between idea and expression, the concept has developed whereby, insofar as a particular idea can be expressed in only a single way, then protection will not be given to a work that constitutes that expression. This concept has been called the "merger doctrine". The merger doctrine has received little reference in the case law of this Court [see: Geva, p. 262; CA 2682/11 Petach Tikva Municipality v. Zissu (May 20, 2013), para. 49]. The doctrine originates in American law, and its application in modern case law is based on the judgement in Baker v. Selden, 101 US 99 (1880) (hereinafter: the Baker case). In the Baker case, consideration was given to whether a book that presents a new method of bookkeeping and also includes blank forms that make it possible to implement the method, grants its author an exclusive right to use the actual method. The American Supreme Court laid down a rule in that case for use in analyzing works, the only or main use of which is utilitarian. The Court in that case held that:

 

            "… where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art and given therewith to the public" [ibid., p. 103].

 

            The federal courts in the USA have relied on this statement in order to develop the merger doctrine. The best-known judgment, which most broadens that doctrine, is Morrisey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. Mass. 1967) (hereinafter: the Morrisey case). In that case, it was held that when a single idea has a very narrow range of possible expressions, a work that constitutes one of the expressions is not to be granted copyright protection (ibid., pp. 678-679)]. Numerous federal courts have supported the rule in Morrisey, but dissenting opinions have also been aired [see: Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.18[C] (2002) (hereinafter: Nimmer)].

 

21.       Baker and its development in case law have been strongly criticized [see: Nimmer, § 2.18[C]. Firstly, it has been argued that in Baker itself, the American Supreme Court restricted the rule cited above solely to the right to use the method or idea given expression in the work, and that the use of the expression in order to present the method will constitute an infringement of the copyright, or in the words of the American Supreme Court:

 

            " The use by another of the same methods of statement, whether in works or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of copyright" [ibid., p. 103].

 

            Secondly, it has been argued that the distinction between copying the expression for the purpose of using the method (or idea), compared with copying the expression for the purpose of showing the method (or idea) is artificial. It has therefore been proposed to determine that copying for the purpose of using the idea will also constitute copyright infringement, and that all that should be permitted is the use of the method or idea for functional needs [see: Nimmer, § 2.18[C]-[D]]. This proposal is based on the understanding that copyright does not preclude reliance upon a work that constitutes a certain expression of an idea and presents a particular method in order to turn the method into a product. Such protection is only granted by patent law. For the purpose of demonstration, let us assume that a company manufactures a particular electrical product that is not per se protected by copyright. For the purpose of manufacture, the company produces drawings that constitute a protected work (as detailed at length below). In view of the proposition presented above, a competing company will not be able to copy the drawings, but assuming that the product itself is not protected by a patent or design, the competing company will be able to manufacture the product on the basis of the drawings without infringing copyright. I would immediately say that I accept this latter distinction, and in my opinion, it should be adopted.

 

22.       Despite the criticism that has been presented, it does appear that when there is a complete merger between the idea and its expression, and when there is only one way to express the idea, a consensus does exist that the work that gives expression to that idea will not gain copyright protection [see: Greenman, p. 83; Nimmer § 2.18[C][2]; Paul Goldstein, Copyright § 2.3.2 1 (1989)]. However, opinions are divided on the question when there are just a few possibilities of expressing the idea. According to one approach, as held in Morrisey, in such a case, copyright protection should also not be granted, but according to another approach, the work will be granted copyright, but it will only be infringed when there is absolute or almost absolute similarity between the works [see: Greenman, p. 83; Geva, p. 262]. This controversy is relevant, because, in the instant case, it is asserted by the Respondent that Safecom should have proven exact copying because its drawings constitute an idea that can only be expressed in limited ways (para. 12 of the Respondent's summations). In order to decide this controversy, in my opinion, reference may be made to the fundamental rule of copyright law presented above – the requirement of originality.

 

23.       Issues concerning the merger doctrine arise in many cases in respect of certain types of work. Thus, in the modern era, the question arises in respect of computer programs [see: Greenman, p. 81]. In addition, it has been asserted that the courts in the USA are expanding the application of the doctrine to visual works [for more on this, see: Michael D. Murray, “Copyright, Originality and the End of the Scenes a  Faire and Merger Doctrines for Visual Works,” 58 BAYLOR L. REV. 779 (2006)]. Another area in which the work, by its nature, raises issues concerning the merger doctrine is that of functional works. The instant case involves a functional work that is also a visual work. In fact, the merger doctrine can be well understood not only on the basis of the distinction between idea and expression, or to be more accurate, the merger between them, but also on the basis of the originality requirement, in particular insofar as it concerns functional works.

 

24.       In Interlego, President M. Shamgar considered at length the difficulties that the requirement of originality raises as regards functional works. One of President Shamgar's most important findings in this respect was that, in principle, a work is not to be denied copyright protection merely because it is functional [ibid., p. 160]. Nevertheless, President Shamgar held that in respect of these works the Old Law applies a filter in addition to the requirement of originality, which he called "the artistry criterion" [ibid., p. 173]. I would immediately explain that President Shamgar based the reference to that criterion on section 35(1) of the Old Law, which defines artistic work as works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art, and engravings and photographs [emphasis added – YD]. In the instant case, Safecom's drawings meet the exact definition of a "drawing" as an artistic work in accordance with section 35(1) of the Old Law, and on the face of it, the artistry criterion therefore does not apply to them directly. However, in my opinion, inspiration may be drawn from that criterion in order to interpret the application of the merger doctrine to Safecom's drawings, and to analyze their originality as a functional work.

 

25.       In Interlego, the difficulty that functional works pose for the requirement of originality was described in a way that very much brings to mind the principles of the merger doctrine. In President Shamgar's words:

 

            "When the form is dictated by the function, namely when the function limits the possible forms in which the product can be designed, then there is no justification for granting copyright to the form that is a product of functional-artistic judgement, since the protection that is given protects the function, not the author's original choice of the specific form. This is a circumstance in which the product's form is determined because of its functional task" (ibid., p. 177) (emphasis original – YD).

 

In fact, the words "function" and "form" can be substituted for the words "idea" and "expression". In order to resolve this problem, President Shamgar proposed six possible criteria for identifying the "artistry" of a work: the choice criterion; the author's intention criterion; the public acceptance criterion; the public's willingness to pay criterion; the minimal aesthetic standard criterion; and the art for art's sake criterion (ibid., p. 179). After a detailed discussion, President Shamgar proposed the "choice criterion" as the test appropriate to the examination of whether or not a work's expression derives solely from its functionality. He defined the criterion as follows:

 

            "The choice criterion: one of the characteristics of art is that it reflects the ability to express an idea in a variety of ways. As far as we are concerned here, this is a very broad criterion since it will be fulfilled whenever the creator of the functional product has the ability to choose between several options (ibid., p. 179).

 

            And following:

 

                        "It appears that in view of the purposes of copyright as indicated, and in light of the principles for the solution as formulated, the choice criterion should be regarded as a proper one in the context of examining the final product. That is to say, as long as the form obtained is one of several alternatives. The alternatives should be effective. An effective alternative is one that not only performs the functional task of the product but also meets the limited options of form existing in respect of future works deriving from the connection between function and form. There should be alternatives which, in addition to the functional task, meet the restriction of form that derives from the product's functional task or in other words, there should be several alternatives that all meet the restrictions of form that derive from the functional task" (ibid., p. 181).

 

26.       Applying the choice criterion can be of help in determining the proper protection of work regarding which it is asserted that its great functionality limits the ways for expressing the idea it represents. According to the choice criterion, the function or purpose for which the work is intended should be sought and an examination made as to whether the form of presenting that purpose – the expression – is accompanied by the author's choice from among several options that could achieve the same purpose. The application of this criterion might certainly lead to different conclusions with regard to different elements of the work. One can think of a functional work, some of the elements of which constitute essential expression of the purpose for which it has been created and therefore do not require the author to choose from alternatives when creating them, while at the same time, other elements are not dictated by its purpose, and it is clear that the author had a large range of possible choices with respect to the mode of expression. In view of this, one can again enquire into the controversy existing with regard to the relevance of the merger doctrine. As aforesaid, in my opinion when there is a solitary option for the expression of a particular idea, it is inappropriate to grant protection to that solitary mode of expression. However, when there are several possible expressions of a particular idea, even if they are very few, then in my opinion, having regard to the choice criterion, the author does have a choice among those possible expressions, and it is therefore inappropriate to deny copyright protection to the expression chosen. Nevertheless, I am willing to accept the approach that in such cases, when the number of options is very limited, then in order to prove copyright infringement, it will be necessary to apply the copying criteria strictly, and require that the work that is alleged to be an "infringing work" be almost absolutely the same as the protected work [see: Geva, p. 262; Strosky, p. 357; Greenman,  p. 83].

 

Copying a Functional Work

 

27.       The question of the criteria for copying in copyright law is an elusive one. Nevertheless, in the early 1970s, this Court laid down standards for the test in CA 559/69 Almagor v. Godik, IsrSC 24(1) 825 (1970) (hereinafter:  the Almagor case). The standards that were laid down in Almagor are still in use and were recently summed up by Justice Y. Amit in Mutzafi as follows:

 

            "(–)     It has to be proven that the defendant copied real and substantial parts of the plaintiff's work, the quality rather than the quantity being decisive.

            (–)       Copying can be inferred when the defendant had access to the plaintiff's work and the similarity between the works is of such an extent that it is unreasonable to suppose that it is the hand of chance.

            (–)       The accumulation of points of similarity is of importance. The more there are, the greater the concern that copying is involved.

            (–)       The question whether the similarity between the two works is sufficient to determine that copying of a real and substantial part is involved is one of fact and degree. The answer to the question should be given not on the basis of a mechanical comparison of a number of words or lines that are similar in the particular works, but in accordance with the judge's impression of the works as a whole" (ibid., para. 26).

 

28. Do these standards change when the protected work is a functional one? In my opinion, that question should be answered in the negative. As I have described above, functional works raise various difficulties at the stage of analyzing the requisite originality for the purpose of recognizing them as copyrighted works. However, once a functional work has passed the originality requirement stage and the choice criterion, it is a protected work in all respects, and substantial parts of it may not be copied. In this respect, even if only some of the elements that make up the functional work have passed the "choice filter", that does not affect their being work protected against copying.

          The only consequence of a work being functional concerns the standard for the analysis of copying when the protected elements constitute an idea that can only be expressed in a limited number of ways.. In such a case, a higher threshold will be necessary to establish copying, and almost absolute similarity between the protected elements and the allegedly copied elements will be required in order to establish that substantial similarity.

 

 

Were Safecom's Drawings Copied?

 

29.       Having considered the elements necessary to establish the protection of a work and prove its protection when the emphasis is on functional works, I shall now analyze whether, in the instant circumstances, Safecom's drawings amount to protected works, and whether the use that the Respondent made of them amounted to copying in infringement of the copyright.

 

30.       Firstly, it should be noted that drawings do generally meet the definition of an artistic work under section 35(1) of the Old Law, and, in any event, the Respondent does not assert that Safecom's drawings do not fall within the scope of the works to which protection is granted. Consequently, an analysis has to be made of whether the drawings meet the requirement of originality and, in such event, because they are functional works, whether they also meet the choice criterion. It is not without reason that it is said that a picture is worth a thousand words, and I shall therefore first present one of the parties' drawings as they appear in the comparative table that the Appellants filed (Exhibit 1 of their exhibits).

 

*  On the left – the Safecom drawing; on the right – the respondent's drawing

 

            The Safecom drawings portray an electrical product whose purpose is to provide electrical backup when there is a malfunction. The drawings show an illustration/photograph of the product with boxes at its sides in which there is text that expresses some electrical function, each of the drawings showing – on the product and between it and the boxes – lines and arrows that describe the electrical function that the drawing seeks to describe by visual expression. I would first state that I accept the Respondent's argument that the boxes, per se, like the text within them, do not amount to protected works. I also accept his argument that his drawings show a photograph of a product that is different from Safecom's, and that it is therefore not a copy. Nevertheless, that does not suffice as regards the question of the drawings' originality and the question of copying.

 

31.       It should first be noted that even if each of the elements of the Safecom drawings does not, per se, amount to an original work, that does not negate the possibility that the combination of the elements into a single visual work does amount to a compilation that affords protection to the way in which the elements are arranged, as opposed to the protection of each element individually [see: Greenman, pp. 119-124]. Nevertheless, even without finding that the Safecom drawings amount to an original compilation, in my opinion it can be found that they do constitute a sufficiently original artistic work.

 

32.       From looking at Safecom's drawings there appears to be no doubt that their purpose is to demonstrate the electrical process and the functions performed by the product that it manufactures. For the purpose of that demonstration, there is no doubt that it is necessary to use predefined expressions, such as the text that describes common electrical functions and such as showing the actual product to which the text relates. Together with that, Safecom's drawings also include lines and arrows that demonstrate the flow process described in the drawing. From looking at the drawings, it appears that this demonstration, which has a functional task, can be expressed in a large number of ways that can achieve the purpose, while Safecom chose a particular means of expression according to which the lines and arrows would be of a certain length and certain thickness, taking a winding course appropriate to the way in which it chose to position the product and the text boxes on the drawing. It is my opinion that Safecom's said choice affords it copyright protection in respect to the particular visual element that seeks to "correspond" with those elements that do not amount to a protected work.

 

33.       Having found that some of the elements of Safecom's drawings do amount to copyrightable artistic work, it remains to determine whether the Respondent's drawings constitute a reproduction of its drawings. I stated above that when a functional work is involved, insofar as there is a limited number of ways in which to express the underlying idea, it will be necessary to show that the work that is allegedly an infringement is almost completely the same as the protected elements in the functional work. I am prepared to assume, for the purpose of the discussion, that whether Safecom's drawings in whole constitute a protected compilation, or whether some of the elements are protected separately as an artistic work, the number of ways to give expression to a demonstration of the product's electrical process is limited. Nevertheless, even working on that assumption, from a comparison between Safecom's drawings and the respondent's drawings it appears that as regards the drawings marked Fig. 2 to Fig. 13, and Fig. 15 and Fig. 16 (Exhibit 1 of the Appellants' exhibits), the Respondent did make an identical (or at least almost identical) copy of the protected elements of the Safecom drawings in the form of the lines that describe the flow process.

 

34.       The Respondent asserts in this regard that filtering out the photograph of the product that was not copied and the elements that are not protected in the form of the boxes and the text on them, "at most what are left are… certain curved lines that describe the connections between the parts of the system. Curved lines in a drawing are not a 'substantial part' of the work. Real de minimus is involved" (para. 14 of the Respondent's summations). I cannot accept that argument. The fact that certain elements of the work are not copyrighted, whether because they are unprotected works, mere ideas or a complete merger between idea and expression, leaves those elements in the public domain and thereby permits their free use by anyone so desirous. However, when other elements of the work are copyrighted, it cannot be said that the fact that other elements of the work are not protected makes copying them insubstantial. Such a finding would negate the very protection of those elements, and that cannot be accepted. In my opinion, specifically when substantial elements of the work do not gain copyright protection and remain in the public domain, then copying all those protected elements will attest to the copying of a substantial part of the work, a fortiori when there is absolute, or almost absolute, similarity [on the substantiveness of the reproduction having regard to the amount of the copying, see Mutzafi, para. 91). This is especially so since there is no dispute that the Respondent did have full access to Safecom's drawings. It should be borne in mind that the Respondent could have made use of those unprotected elements of Safecom's drawings and added different visual descriptions to them that demonstrate the functionality of the drawings, and he could also have arranged the elements of the drawing differently, which would have achieved the functional purpose as well. Since the Respondent made exact use of Safecom's protected visual resources, he infringed its copyright in those elements.  Justice's Netanyahu's statement in Strosky is apt in this regard:

 

            "A general inverse relationship equation may be appropriate inasmuch as the less originality and intellectual effort in the work, the more exact the copying that is needed for its copyright infringement. According to this equation, it can be said that the originality and effort in the sign are modest, while the copy is almost exact. That suffices for infringement" (ibid., p. 357).

 

Permitted Uses

 

35.       Having found that the Respondent did infringe Safecom's copyright in its drawings, it remains to discuss the Respondent's arguments that his actions and the drawings that he made constitute permitted use according to the New Law and therefore do not amount to infringement. The Respondent bases his arguments on section 78(c) of the New Law, according to which an act that does not constitute an infringement of copyright in accordance with that Law will not constitute an infringement of copyright under the Old Law, despite its application in the circumstances. In view of that argument, it should first be determined whether the use of the work, in accordance with the uses that are defined in chapter four of the New Law as "permitted uses", constitutes copyright infringement. In my opinion, the answer to that is in the negative. In CA 5097/11 Telran Communications (1986) Ltd v. Charlton Ltd. (September 2, 2013) (hereinafter referred to as "Telran"), my colleague Justice Z. Zylbertal expressed the opinion that use in accordance with the uses defined in chapter four of the New Law cannot amount to a contravention of that law (ibid., paras. 28-30). That opinion is based both on the wording of the Law and on the perception that there are certain uses that, according to the purposes underlying copyright, amount to a right of the user and not merely a defense against contravention of the Law [for further, see Niva Elkin-Koren, “Users' Rights,” in Michael Birnhack & Guy Pesach, eds., Copyright (2009) 327 (Hebrew)]. I accept this position both as regards the finding that permitted use, as defined in chapter four of the New Law, does not constitute a contravention of the law, and as regards the finding that permitted use in fact constitutes a right that is granted to the user to make certain types of use of a work. I am conscious of the fact that this position is contrary to the holding of Deputy President E. Rivlin in CA 9183/09 Football Association Premier League Ltd. v. Anonymous (May 13, 2012) (hereinafter: the Anonymous case), para. 18 of his opinion, and in view of the existing disagreement, the time may have come for an extended bench to address this issue.

 

36.       Having found that permitted use does not amount to a contravention of the New Law, consideration should be given to the types of permitted use that are asserted by the Respondent in the instant case.

 

            Firstly, the argument Respondent raises avers that his use of Safecom's drawings is permitted use under section 20 of the New Law, which permits the use of a work in legal administrative proceedings to the extent justified having regard to the purpose of the use. I cannot accept that argument. I am prepared to assume for the purpose of the discussion that using the work for the purpose of presenting it to the registrar of patents in a particular country does constitute use in legal administrative proceedings, despite the fact that such a finding is not free of difficulties. However, the main element of this permitted use is the extent of the use, having regard to its purpose. In the instant case, the purpose of using Safecom's drawings and presenting them to the American Registrar of Patents in the patent registration application was the registration of a patent in respect of a product that competes with the one that Safecom markets. My opinion is that such use by a direct competitor, using the copyrighted work for the purpose of direct competition with the owner of the work, cannot amount to permitted use under section 20 of the New Law.

 

37.       Secondly, the respondent raises an argument that the use that he made of Safecom's drawings amounts to fair use, as defined in section 19 of the New Law. Section 19(a) of the New Law comprises an open list of types of use of protected works that will be permitted and fair. Section 19 (b) of the New Law enumerates four non-exclusive factors that are to be considered in order to determine whether a particular use amounts to fair use, including:

 

            "(1) the purpose and nature of the use;

            (2) the nature of the work of which use is made;

            (3) the extent of the use, qualitatively and quantitatively, in relation to the work as a whole;

            (4) the effect of the use on the value of the work and its potential market".

 

            This Court has held that "these are not essential or cumulative factors but a non-exhaustive list of parameters that might indicate the fairness of a particular use that is made of a protected work" [Anonymous, para. 19 of the opinion of Deputy President Rivlin].

 

            The four subordinate criteria listed in section 19(b) of the New Law are based on the subordinate criteria that have been laid down in the American Copyright Act [see: 17 USC § 107]. Empirical research that has been conducted attests that although the fourth subordinate criterion – the effect on the potential market – is most often mentioned as the decisive factor regarding the fairness of use, the first subordinate criterion – the purpose and nature of the use – does in fact have the most marked effect on the decision, the most influential factors being the commerciality and transformativeness of the use [see: Barton Beebe, “An Empirical Study of US Copyright Fair Use Opinions,” 1978-2005, 156 U. PENN L. REV., 549 (2008); Neil Weinstock Netanel, “Making Sense of Fair Use,” 15 LEWIS & CLARK L. REV. 715 (2011)]. It appears that these factors were also the most influential in this Court's ruling in Anonymous [ibid., para. 20].

 

            In the instant case, it appears that the use that the Respondent made of Safecom's drawings did not meet the standard of fair use. Thus, in the scope of the first subordinate criterion, it is clear that the Respondent's use was commercial because its whole purpose was to bring about the registration of a patent in respect of his product that competes with Safecom's product. Moreover, on analyzing the question of transformative use, it does not appear that the Respondent's use of the Safecom drawings led to the creation of a new expression, different from the original expression embodied in them. As regards the third subordinate criterion – the extent of the use – I have already found above that the Respondent made an exact, or almost exact, copy of Safecom's drawings, and the extent of the use is therefore full. Finally, having regard to the fourth subordinate criterion, it is clear that since the product marketed by the respondent directly competes with Safecom's product, there is no doubt that the use affects the potential market for Safecom's drawings.

 

            Incidentally, I would mention that I cannot accept the Respondent's argument that the American Patent Office has expressed its opinion that the use of a protected work for the purpose of a patent application amounts to fair use. From studying the opinion (which was annexed as Appendix J to the Respondent's volume of supporting documents), it appears that the American Patent Office means that the use of protected works that the Office itself makes in its relationship with those filing patent applications amounts to fair use [see: United States Patent and Trademark Office, USPTO Position on Fair Use of Copies of NPL Made in Patient Examination (January 19, 2012)].

 

38.       Thirdly, the Respondent contends that the use that he made of Safecom's drawings is permitted in accordance with section 27 of the New Law. Section 27 of the New Law provides:

 

            "Making a new artistic work which comprises a partial copying of an earlier work, or a derivative work from an earlier work, as well as any use of the said new work, are permitted to the author of the said earlier artistic work even where said author is not the owner of the copyright in the earlier artistic work, provided the new work does not repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

            In order to fall within the scope of the section, the Respondent must show that he was at least a joint author of the Safecom drawings. The District Court found that the Respondent had waived his rights in the drawings in favor of Safecom in the scope of the Agreement. The Respondent argues in this connection that even if he had waived his rights in the drawings, as regards the New Law he is still the first joint author of them. In my opinion, there is no need to rule on this issue because even if the respondent is a joint author of Safecom's drawings, section 27 of the New Law does not work in his favor in this case because the use that he made of Safecom's drawings amounts to an absolute, or almost absolute, copy of them. It cannot, therefore, be said that "partial copying" of Safecom's drawings, or a work deriving from them, is involved, and it can easily be found that the Respondent's drawings "repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

39.       Before concluding, I shall briefly consider the Respondent's argument concerning the law governing this case. According to the Respondent, copyright law is naturally territorial, as is the application of the Old Law. Since Safecom's drawings were copied in the USA, the Respondent asserts that the law governing the case is American law, which was not proven by the Appellants, and the appeal should therefore be dismissed. The District Court considered the Respondent's said argument and held that the drawings were not only copied in the context of filing the patent, but that the Respondent had received the presentation containing Safecom's drawings in Israel and copied them on the computer at his home in Israel. Consequently, the District Court held that Israeli law could be applied to the case. Those findings of the District Court are findings of fact, in which I have not found it appropriate to intervene at the stage of appeal. I would merely state that even were it appropriate to find that this case is governed by American law, that would not necessarily lead to the dismissal of the appeal in the absence of proof of the foreign law. This is particularly so when a sphere is involved that is regulated by numerous international conventions, which lead to relatively great conformity among the different state laws [see, for example: CA 169/94 Werner v. Amorim, IsrSC 50(3) 119, 124 (1996); CA 1227/97 Red Rock Quarry and Stone Works Ltd. v. Ibrahim IsrSC 53(3) 247, 259 (1999); CA 7687/04 Sasson v. Sasson (February 16, 2005), para. 10].

 

40.       In conclusion, I would recommend to my colleagues that we find that certain elements of Safecom's drawings amount to protected work, that 13 of the Respondent's drawings amount to an absolute, or almost absolute, copy of Safecom's drawings, and that the use that the Respondent made of the drawings does not amount to permitted use. I would also recommend to my colleagues that we remand the case to the District Court for ruling on the appropriate relief in respect of those infringements, and that the Respondent pay the Appellants' costs in the amount of NIS 40,000.

 

 

 

Justice Z. Zylbertal

 

            I concur.

 

 

 

Justice E. Rubinstein

 

A.        I concur in the illuminating opinion of my colleague, Justice Danziger.

 

B.        My colleague gave thorough consideration to a broad picture of copyright law, with regard to originality as a condition for the protection of a work, the protection of the way in which an idea is expressed, as opposed to the idea itself, and the criteria concerning works of a functional character, which is a complex matter in itself.

 

C.        I would like to add another criterion to all these – the common sense criterion, which might sound too broad because it can be said that common sense should guide us in every case, and on the other hand it is not necessarily the same for everyone in individual matters. However, by saying "common sense" in the instant case, I mean the accumulation of all the overall facts before the court.  When a work is involved, appearance or the sight of the eyes ("better is the sight of the eyes than the wandering of the desire", Ecclesiastes 6:9) is also acknowledged to be a significant parameter in intellectual property law (and see: CA 3422/03 Krone v. Inbar, IsrSC 59(4) 365, in respect of drawings as well. See also, inter alia, CA 7125/98 Mipromal v. Kalil, IsrSC 57(3) 702, 710 et seq.). Incidentally, the expression "the criterion of common sense" (in a slightly different sense) can be found in case law. See the statement by then Justice Grunis in ALA 5454/02 Taam Teva v. Ambrosia, IsrSC 57(2) 438, 453 (2005) citing this criterion per the learned commentator Seligson (Trademarks and Similar Law, (5733), 80-81 (Hebrew)) as regards the comparison of a conceptual message. And in the instant case, in preparing the file, when we – the bench – inspected the drawings involved, in our eyes there was a great similarity that was immediately conspicuous. Consequently, as I see it, the result that we have reached was required not only by common sense but also by the sight of our own eyes.

 

D.        Intellectual property law does, indeed, in many cases involve subtle nuances in respect of which it is frequently difficult to separate the wheat from the chaff, and much has been written about the difficulties of litigation in this sphere (see: D. Freiman, Patents (second printing, 2008) 7); but in my opinion, the case before us is not one of the difficult ones and anyone looking at the drawings that my colleague presented in his opinion (para. 30) needs no arcane language and can take them at face value, almost like the well-known definition by US Supreme Court Justice Potter Stewart concerning pornography, who said that it is perhaps difficult to define but "I know it when I see it".

 

E.         As aforesaid, I concur with my colleague's review, together with his cataloguing and arrangement of the matter.

 

F.         Before concluding, I would mention that Jewish law, especially in its modern embodiment, but even long ago, has considered the matter of intellectual property rights; see my opinion in CA 9191/03 V&S Spirt Aktiebolag v. Absolute Shoes, IsrSC 58(6) 869, 888-892, which also discusses (at p. 890, para. 18(3)) the Jewish law foundations of enforcement in intellectual property matters, and I would here emphasize the approaches of Jewish law that concern a another’s craftsmanship, trespass and theft, and more; in Krone, supra (at p. 379), I also considered the matter of a graphic pattern (or drawings) as a cause of action in Jewish law, and also see my opinion in ALA 7774/09 Weinberg v. Weisshof (2012) paras. 9 to 12 and the authorities cited there.

 

 

 

            Decided as stated in the opinion of Justice Y. Danziger.

 

Given this 15th day of Kislev 5774 (November 18, 2013)

 

 

 

Justice

Justice

Justice

 

 

 

 

 

            

 

At the Supreme Court sitting as the Court for Civil Appeals

 

C.A. 8954/11

                       

Before:                                                            The Hon. Deputy Chief Justice M. Naor

The Hon. Justice S. Joubran

The Hon. Justice N. Sohlberg

 

The Appellant:                                    John Doe

                                               

V e r s u s

 

The Respondent:                                 1. Jane Doe

The formal Respondent:                     2. Jane Doe

 

An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, dated October 11, 2011, by Justice Gila Knafi-Steinitz

 

 

On behalf of the Appellant:                Adv. Ephraim Abramson, Adv. Yifat Aran

 

On behalf of the Respondents:           Adv. Amir Fischer

 

 

Judgment

 

Justice Noam Sohlberg:

"All human beings have three lives: public, private, and secret".

(-Gabriel Garcia Marques-)

Table of Contents

The Parties and the Main Facts...................................................................................... 3

The Parties' Main Arguments in the District Court........................................................ 4

Abstract of the District Court Judgment....................................................................... 6

The Main Arguments of the Appellant in the Appeal.................................................... 9

The Main Arguments of the Respondent in the Appeal.............................................. 12

The Normative Framework.......................................................................................... 15

Freedom of Expression and Artistic Freedom............................................................. 16

The Autobiographical Composition............................................................................. 18

The Right to Privacy.................................................................................................... 21

The Right to Privacy – Scope...................................................................................... 23

The Justifications for the Right to Privacy.................................................................. 24

The Intrinsic Justification............................................................................................. 24

Instrumental Justifications........................................................................................... 25

The Right to Privacy and Intimate Relationships........................................................ 29

English Law................................................................................................................. 31

The European Court of Human Rights........................................................................ 35

Continental Law.......................................................................................................... 36

U.S. Law...................................................................................................................... 38

Interim Summary – Foreign Law................................................................................. 40

The Normative Balance between the Rights................................................................ 40

Proportionality in the Narrow Sense – a Balance of Profit and Loss.......................... 41

Freedom of Speech and the Right to Privacy.............................................................. 43

From the General to the Particular – the Right to Privacy and Freedom of Speech... 48

Degree of Fictionalization............................................................................................ 49

The Degree of Invasion of Privacy.............................................................................. 52

Protection of the Trust Relations between Couples..................................................... 52

Freedom of Speech...................................................................................................... 53

Concern of Literary Work being Shelved.................................................................... 54

Copyright and Defamation.......................................................................................... 56

Consent of the Respondent......................................................................................... 56

Conclusion................................................................................................................... 57

Prologue

1. An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, (Justice Gila Knafi-Steinitz) which granted the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him. In addition, the Appellant was charged to pay damages to the Respondent in the amount of ILS 200,000 for her non-pecuniary damages.
2. The core issue at the center of the discussion is the question of the proper balance between the right to freedom of expression and artistic freedom on the one hand, and the right to privacy and a good reputation on the other.

The Parties and the Main Facts

3. The Appellant – a married man and father of children, who lived with his family in Jerusalem, is the author of the novel contemplated in this suit (hereinafter: the "Novel").
4. The Respondent was employed in a cinema in Jerusalem during 2001, was at that time a student in an art institute, and was living with her partner in the vicinity of the Appellant's neighborhood in Jerusalem. The details of her life were the Appellant's inspiration in writing the Novel; the Formal Respondent – the publisher – published the Novel.
5. In 2001, the Appellant met the Respondent at her workplace in the cinema. With time, the connection between the two deepened, and turned from an "acquaintance" to a close and intimate relationship, which lasted some five years – first in secrecy, then disclosed to the people close to them, and eventually published in the Novel. Following the exposure of the romantic relationship between the two, the Appellant divorced his wife and the Respondent separated from her partner.
6. In the midst of the romantic relationship, the Respondent was diligently preparing her graduation project, as part of her last year of studies, which mainly focused on a relationship developing between a man and a woman.
7. At the end of 2004, the Appellant began a work of his own, a first novel focusing on the "drama of breaking up a family" (as stated on the back of the book). The Novel describes an emerging intimate relationship between a man of the Appellant's age, who is discouraged by a non-fulfilling marriage, and a young student, starting with their first meeting at a cinema. The male-protagonist's occupation is identical to that of the Appellant; the cinema is the one in which the Respondent was employed. In the Novel, at the beginning of their acquaintance, the male-protagonist is a married man, father of children and living with his family in Jerusalem, whereas the female-protagonist, a single young-adult woman, rents an apartment in Jerusalem, close to the home of the male-protagonist, where she lives with her partner. Upon the completion of the exhausting work of writing, the Novel was published. The publication of the Novel was accompanied by a marketing campaign in the media, including an interview in the weekend supplement of a widely distributed newspaper, a TV interview and articles in newspapers and various websites.
8. Immediately upon the publication of the Novel, the Respondent contacted the Appellant and the Publisher and demanded to immediately stop the marketing and distribution of the Novel, to recall all copies already distributed, and to compensate her for her damages. According to her, the book is an accurate autobiographical description of the author's life, and it includes descriptions pertaining to the intimate aspect of the relationship between them, while severely violating her privacy and committing libel and slander: "in writing and publishing the book you breached the law, fatally violated her privacy pursuant to the provisions of Sections 2(8), 2(9), 2(10) of the Protection of Privacy Law… and published libel against her under Sections 1 and 2 of the Defamation (Prohibition) Law…" (letter of the Respondent's attorney, Adv. Amir Fishcer). The Respondent further claimed that the unlawful use of her personal letters for the purpose of writing the Novel establishes an independent cause of action under the Copyright Law.
9. Upon receipt of the said demand, the publisher notified the Respondent, in an unusual step, and without admitting to her claims, that it decided to temporarily cease the distribution of the Novel until the dispute is resolved. To that end, the publisher contacted the retail chains and bookstores and asked to retrieve the copies of the Novel that were yet unsold.
10. After some communication between the parties, and as the Respondent's said demands were not entirely fulfilled, the suit contemplated herein was filed to the Jerusalem District Court. On June 9, 2009, the Jerusalem District Court (Justice H. Ben Ami) granted the Petitioner's motion for a preliminary injunction prohibiting the distribution of the Novel written by the Appellant (M.C.M. 7649/09). A motion for permission to appeal, which was filed with this Court (L.C.A. 5395/09), was denied by Justice (his former title) A. Grunis, in his decision dated August 27, 2009.

The Parties' Main Arguments in the District Court

11. The Respondent's position is that the publication of the Novel and the its distribution severely infringe on her right to privacy, in violation of the Protection of Privacy Law, and further blemish her reputation in violation of the Defamation (Prohibition) Law. According to her, other than changing the names of the protagonists of the Novel, there is complete congruence between herself in her real life and the literary character of the female-protagonist of the Novel. For example, according to the Respondent, the book describes in an autobiographical manner and in "frightening accuracy" the Appellant's life during the time he had an intimate relationship with the Respondent; the female-protagonist's character includes many identifying details that are unique to the Respondent and enable members of her family and acquaintances to easily identify her; in addition, the author did not withhold  the internal and external realms of the Respondent's life, including her body, feelings, weaknesses, her most private secrets, her sexual activity and preferences, as well as her most intimate relationships. Moreover, according to the Respondent, the Appellant in his book, made breaching use of both her letters and her art from the graduation project, without obtaining the required consent and in violation of the provisions of the Copyright Law. With respect to the Publisher's responsibility, the Respondent argued that it knew, or at least should have known, that this is obviously an autobiographical book, and is therefore also liable for the offense and tort. With respect to the damage, the Respondent mentioned the distress caused to her, and the concomitant injury to her future personal and professional life.
12. On the other hand, the Appellant argued that the Novel he wrote is merely a fictional composition, that the real-life persons were nothing but an inspiration, and that the Novel most certainly is not a complete autobiographical and true description of the author's life. Two opinions were submitted on behalf of the Appellant by two experts of the highest caliber in the field of literature: Prof. Ariel Hirschfeld and Prof. Hannan Hever. Prof. Hirschfeld summarized his opinion in several conclusions, inter alia, that "Reading the Novel… it is absolutely clear that it has no pretense to reflect or record actual reality" (para. 32); "Accepting the claim would be a far-reaching precedent, whereby the mere possibility to identify any realistic model for a fictional character, even in the private context known to just a few, will be a violation of the law. In such case, the judicial authority undertakes the re-definition of literature and its boundaries, thus damaging the deep and essential principle of fiction, that which enables the freedom to create and interpret the human reality in its entire complexity" (para. 34). Prof. Hever summarized his opinion with the conclusion that "reviewing the aggregate weight of the existing hints… unequivocally indicates that the book deals with a creation of fiction, rather than real-life reality, and that no 'autobiographical contract' is entered into by the author and his readers. Such conclusion rebuts any claim which is based on such argument" (para. 3.3).
13. The Appellant argues that the source of the identification of the Respondent is the "confirmation bias" – a phenomenon whereby people adhere to similarities and ignore the existence of differences. The Appellant further argued that the Respondent gave her consent and even her blessing to the writing of the Novel. The Respondent read parts of the draft of the book and knew it would be about the affair she had with the Appellant, and therefore will naturally also include intimate details. The Appellant argued that attention should be paid to the fact that the Respondent refrained from reading the book prior to its publication, and thus waived the option to control its content. Moreover, the Respondent's acts amount to "false representation" to the Appellant that she will not deny the publication. According to him, once the Respondent's consented to the publication of the Novel, her argument regarding violation of her right to privacy is precluded. With respect to the Respondent's argument regarding her right to good reputation, the Appellant relies on the testimony of the author Mira Magen, whereby the personality of the female-protagonist, as it is portrayed in the Novel, is endearing in the eyes of the readers. According to him, this is not a humiliating expression, thus, it does not constitute defamation. The Appellant further noted that the Respondent submitted no evidence of the possibility to identify her, and therefore no "actual" injury to privacy had been proved. The Appellant further claimed that insofar as any damage had been caused to the Respondent's privacy, it should be balanced against his freedom of expression and artistic freedom. In such a balance, the freedom of expression prevails. In response to the Respondent's argument with respect to copyrights of her letters, the Appellant argued that their use in his book falls within "fair use". Alternatively, he argued that the Respondent gave her consent for such use. To conclude, the Appellant noted that taking the book off the shelves is inconceivable, for that is a serious and severe injury to freedom of expression and artistic freedom.
14. The Publisher repeated in its arguments some of the arguments raised by the Appellant, and emphasized that he presented the Novel to it as a fiction, hence it did not know, nor could it know, that the Novel is actually based on real events. The Publisher further noted that the Appellant stated, within the agreement therewith, that "his book is a fiction novel… the characters mentioned in it are fragments of the author’s imagination. Any resemblance to reality or to real people is completely coincidental and resulting from the author's imagination or the acquaintances he had in the course of his life" (Section 1.1a of the agreement). The Publisher further noted its fair conduct, from the moment it learned of the Respondent's claims, upon which it put halt to the sales of the book and had it removed from the shelves.

Abstract of the District Court Judgment

15. The District Court first reviewed the main argument of the experts on behalf of the Appellant, Messrs. Hirschfeld and Hever that "the mere publication of a composition as a work of fiction, which has the common literary characteristics of a work of fiction, creates an inseparable border between the content of the work and reality, and bars the review of the content of that composition as a documentary work which records reality" (para. 30 of the Judgment). In addition, the Court addressed the experts' main concern whereby "adopting the alternative position, whereby a work of literature, even when declared to be fictional, might be perceived as a violation of privacy, may lead to a slippery slope…" (ibid). In the second stage, the District Court noted that in this case there is "a dilemma, pertaining to the tension between two important values, which are perceived as two basic rights in a free and democratic society: artistic freedom on the one hand, and the right to privacy on the other" (para. 31 of the Judgment). At the third stage, the District Court ruled that "neither one of these rights can be granted absolute protection, and it is therefore also not possible to adopt  the sweeping position that mere publication as part of a work of literature is sufficient to bar consideration of the violation of privacy argument on its merits. The same position was adopted by the legislator" (para. 36 of the Judgment). The District Court thus denied, de facto, the argument that a fictional novel in itself – by virtue of its literary definition – grants its author absolute protection against any claim of violation of privacy. At the same time, the District Court reserved and stated that "the argument of violation of privacy based on fictional literature will not be easily accepted. The author's argument of fiction… is a weighty argument which has a substantial contribution to the prevention of the violation of privacy", however, it is not enough to exclude it altogether (para. 37 of the Judgment). "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (ibid).
16. Thereafter, the District Court reviewed the contemplated literary work itself, i.e. – is this a fictional novel, or "documentary literature disguised as a fictional novel" (para. 37 of the Judgment). Following a meticulous review, the District Court ruled that the "character of the female-protagonist in the book includes many unique identification details that identify the Plaintiff therewith in a definite and unequivocal way" (para. 40 of the Judgment). Such unique details include her "…physical appearance, informative details regarding her age, unique occupation, place of studies, work place and residence, details pertaining to her unique art work, identifying details of the defendant, her partner, and events that took place in reality in the presence of third parties…" (ibid). The inclusion of the said identifying details led the District Court to the conclusion that "the Respondent's family members, associates and acquaintances, will unquestionably identify the Respondent as the female-protagonist of this book" (para. 41 of the Judgment). The District Court further stated, in response to the Appellant's argument, that in order to prove the identification, there is no need to present witnesses who will expressly identify the literary character with the Respondent. Such identification transpires, according to the District Court, from the book itself.
17. Having reviewed and considered the parties' arguments with respect to the violation of privacy, the District Court concluded that the violation of the Respondent's privacy derives from the aggregate weight of two main components:
    
    1. The numerous identifying details that indicate that the Respondent, who is not a public figure, is unmistakably the female-protagonist of the Novel written by the Appellant;
    2. The number of issues exposed in the book that pertain to the core of the individual's privacy, and their scope and nature.

The aggregate weight of these two factors, according to the District Court, "rebuts the author's fiction argument " (para. 51 of the Judgment), and turns the Novel to a documentary book disguised as a fictional composition. In other words, the author "abused the characteristics of fictional literature, in order to document his relationship with the Plaintiff, while severely damaging her privacy" (ibid). The District Court emphasized that the violation of the Respondent's privacy could have easily been avoided "insofar as her character… would have been camouflaged and made indistinct by disguising details". However, the District Court noted that the Appellant's insistence on including in his book many details that identify the Respondent as the female-protagonist of his book, and his choice to stay as close to reality as possible work against him: "instead of 'distancing' the work from the Plaintiff, and detaching it from the milestones of the reality of his relationship… the Defendant chose to firmly anchor it in a specific reality, known and recognized not only to himself and the Plaintiff, but also to numerous third parties" (para. 52 of the Judgment).

18. The District Court denied the Appellant's argument that the Respondent ostensibly gave her consent to the publication of the Novel. Relying on an "array of evidence" it was held that the Appellant failed to prove that the Respondent indeed gave her "informed consent, whether expressly or implicitly, for publications that contain violation of her privacy" (para. 59 of the Judgment). First, the book, in its full version, was never submitted for the Respondent's perusal – neither in its original nor in its final version – and her consent for its publication was not requested (ibid); second, the Appellant admitted that he initially considered publishing the book under a pseudonym, and contemplated this option up until the book’s publication (para. 60 of the Judgment); third, the Respondent's objection, prior to the book’s publication, to mentioning the name of the institute where she studied (para. 61 of the Judgment); fourth, the Appellant's response to the Respondent's arguments following the book’s publication (para. 62 of the Judgment); fifth, the "charged" and impressive testimony of the Respondent in the District Court (para. 63 of the Judgment). In conclusion, the District Court ruled that "not only did the Plaintiff not give informed consent to the violation of her privacy, but she clarified to the Defendant, prior to the publication, that she forbids him to include any detail that might lead to her identification in the book." (para. 65 of the Judgment).
19. Regarding the right to a reputation, the District Court ruled that the question whether the Novel refers to the Respondent in a "humiliating, offensive or demeaning" manner shall be decided according to an objective standard of the reasonable person. The mere fact that the Respondent is described in the Novel as "someone who carried an intimate relationship with a married man, and did that in parallel to the relationship with her partner at the time… someone who will trample anything in her way to reach her goals, and someone who is using people 'as if they were objects'" (para. 68 of the Judgment) in itself constitutes defamation.
20. The District Court denied the Appellant's arguments that various defenses are available to him under the Protection of Privacy Law and the Defamation (Prohibition) Law. Regarding the defense of public interest under Section 18(3) of the Protection of Privacy Law, the District Court held that "the Law… does not extend absolute protection to any literary composition… the Law only extends protection to the infringement of privacy when there is 'a public interest which justifies the infringement under the circumstances'" (para. 72 of the Judgment). The Appellant failed to establish any reason to justify the satisfaction of his freedom of expression in such an offensive manner, and it could have easily been satisfied by publishing the Appellant's artistic work without infringing the Respondent's privacy. Regarding the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law and Section 15(6) of the Defamation (Prohibition) Law, the District Court held that the violation was not in good faith. The Appellant acted to publish the Novel in its full version, and paid no attention to the Respondent's demands to refrain from publishing it.
21. With respect to the Respondent's arguments regarding violation of copyright of her letters, the District Court held that the proof of the infringement of privacy and the remedies resulting therefrom render the need to decide on the issue of copyright to the letters redundant. The District Court noted that even if the Appellant's acts do constitute a violation of the Respondent's copyright "this does not justify compensation beyond the compensation that was determined" (para. 80 of the Judgment).
22. Regarding the liability of the Publisher, it was ruled that its acts do not establish legal liability under Section 31 of the Protection of Privacy Law and Section 12 of the Defamation (Prohibition) Law. "In the matter herein, Defendant 2 did not have to know, on the basis of the facts available to it at the time of the book’s publication… that the book includes a violation of privacy with respect to the Plaintiff" (end of para. 85 of the Judgment).
23. Therefore, the District Court prohibited the publication of the book and its distribution. The monetary compensation to the Respondent, for her non-pecuniary damages, was set at ILS 200,000, after the District Court had considered the scope of the violation of the Respondent's privacy, nature of the publication, number of books distributed, pain and suffering caused to the Respondent, the Appellant's behavior, insisting on the publication of the Novel even after her requests and demands to refrain therefrom, and additional considerations.

The Main Arguments of the Appellant in the Appeal

24. According to the Appellant's position, the District Court erred in its interpretation of the Protection of Privacy Law. According to him, "the status of fictional works does not depend on the ability to identify their sources of inspiration but rather on the probability that their content would be attributed to the Plaintiff as a true description". In other words, "fictional compositions have a special status because of the interpretation of the text and not because the lack of identification of the sources of inspiration". The Appellant argues that "under the existing legal status, the attribution of the published content" to the Respondent requires the fulfillment of two cumulative conditions: first, the identification of the real character with the fictional one; and second, the interpretation of the literary text as a "true description" pertaining to the real person. However, according to the Appellant – in terms of what the law ought to be – the proof of another element should be required: "the proof of malicious intent on the author's part". Alternatively, the Appellant argues that lack of fulfillment of the said second condition is seemingly sufficient to grant the appeal herein, while reversing the judgment of the District Court.
25. The Appellant further notes that the common position in case law is that the Defamation (Prohibition) Law can be considered as a helpful tool in the interpretation of the Protection of Privacy Law. Pursuant to Section 3 of the Defamation (Prohibition) Law (concerning "means of expressing defamation"), omitting the name of the party injured by the publication "does not preclude defamation, provided that the content pertains to him"; i.e. – according to the Appellant, the Respondent must prove that the combination of the published content with external circumstances, indeed leads to the attribution of the published content to her. The Appellant further refers to the ruling of the District Court, whereby "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (see Para. 16 above). According to the Appellant, "reasonable reading of the Novel, which takes into account its metaphoric nature… does not lead to the conclusion that the content of the book is true and reflects the reality of the Respondent's life" (para. 39 of the Appellant's summations).
26. According to the Appellant, the test of the "ability to identify the injured person", which was adopted by the District Court, cannot be used as a single condition for the classification of a literary composition as a documentary text, for the purpose of implementing the Protection of Privacy Law and the Defamation (Prohibition) Law. Even more so, according to him, the sources of a fictional composition can almost always be identified. "The unwritten common contract between artists and art consumers in the western culture is that all those books that are published and distributed under the title of "Fiction" do not document reality but are a fiction for all intents and purposes". Moreover, the Appellant warns against the adoption of a legal policy that encourages lawsuits against authors, requiring them to "confirm or deny the degree of similarity between the book’s plot and the reality of their lives". According to him, this state of affairs places authors in an inherently inferior position, i.e. – the similarity is more easily noticed than the differences, in view of the proven existence of the psychological phenomenon called the "confirmation bias".
27. The Appellant argues that the discussion in the District Court’s judgment "was flawed by over-interference in considerations of artistic editing", and ignored the fact that, in any case, there was no proximate cause between the inclusion of the details in the Novel and the identification of the female-protagonist with the Respondent. According to him, the District Court erred in accepting the argument that his choice to write the Novel under his own name, rather than under a pseudonym, precipitates his identification with the male-protagonist, and consequently – the identification of the Respondent with the literary character of the female-protagonist.
28. The Appellant further disagrees with the District Court's ruling that the violation of the Respondent's privacy could have easily been avoided by blurring and camouflaging identifying details. According to him, such ruling is based on "retrospective wisdom", and therefore cannot attest to his "offensive" intent. In this context, the Appellant further notes that the Respondent's consent to a detailed description of her unique work of art in the Novel, realizing that the readers may associate her with the literary character, cannot be ignored.
29. According to the Appellant, the District Court erred in giving no weight to autobiographical artistic freedom. According to him, the book contemplated herein is nothing but a fictional Novel, and in any event the Court must balance the Appellant's autobiographical artistic freedom against the Respondent's right to protection of privacy. Denying the Appeal at bar, according to him, may put an end to autobiographical writing as a whole.
30. Moreover, the Appellant argues that the District Court erred in applying, de facto, a vertical balancing of rights rather than horizontal balancing; i.e. – prioritized the Respondent's right to privacy over the Appellant's freedom of expression. According to him, the District Court used a "statistical formula" whereby there is high probability that the Respondent will be identified in a manner that may lead to a violation her privacy. Alternatively, the Appellant argues that horizontal balancing implies that he should be allowed to make corrections to his work. In support, the Appellant notes that in the hearing held on June 13, 2011 before the District Court, he offered to delete parts of his book and change the characteristics of the female-protagonist, as will be required.
31. According to the Appellant's position, the District Court erred in ruling that the Novel is excluded from the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law in the circumstances of Section 15(6) of the Defamation (Prohibition) Law. The Appellant supports his arguments, inter alia, on the testimony of his friend, who noted that the Appellant acted "under the belief that the Plaintiff will be glad and proud of the character whose creation was inspired by her, and of the entire Novel, which is an expression of appreciation of her graduation project". Therefore, according to the Appellant, the District Court erred in ruling that the "violation was not in good faith. The Appellant was informed that the Plaintiff objects to the publication, and he therefore cannot claim that he believed in good faith that he was entitled to do so".
32. The Appellant argues that "the appropriate balance between artistic freedom and the protection of privacy, in lawsuits pertaining to an argument of violation of privacy in fictional compositions, will be obtained by a test that will focus on the question whether the author acted with malicious intent". According to him, the factual matrix indicates that he had no "malicious intent" in publishing the book contemplated herein or at least in the humiliation of the Respondent. On the contrary, the close acquaintance with the Respondent and her behavior during their relationships "caused the Appellant to truly believe that the Respondent does not recoil from exposure", and even more so from the publication of a Novel for which she was the inspiration. Thus, this is not a violation of the Respondent's privacy that will prevail over the Appellant's freedom of expression. Moreover, the Appellant argues that mere negligence is insufficient in itself to hold the author of the composition liable, due to fear of "abuse" of fictional literature. However, under the circumstances herein, the District Court held that the Appellant's negligence in obscuring the identity of the source of inspiration for a character in the book is sufficient to justify the prevention of its publication and the prohibition of its distribution.
33. Based on the defense of "public interest" under Section 18(3) of the Protection of Privacy Law, the Appellant argues that there is "public interest" in the publication of the Novel contemplated here. "The Novel concerns a universal issue: romantic relationships, the world the man and the world of the woman, marriage, parenthood, love and its collapse… at the center of public discourse…". As evidence, the Appellant refers to readers' letters sent to him following the publication of the Novel which describe "a deep sense of identification with the protagonists". According to the Appellant, the position adopted by the District Court, whereby "literature will not be harmed if writers are prohibited from including [in the composition] details that enable the identification of the sources of inspiration" in fact seeks "to eat the cake and leave it whole". Adopting a judicial policy in the spirit of the aforesaid position, might condition on the artistic freedom of writers by stating: "you [authors – N.S.] may develop the fictional characters as you please, with the exclusion of details that later, potential injured persons may appear and argue to be exposing their identity". The Appellant again notes that he proposed to the District Court to allow him to edit the Novel such that details which may be viewed as "lacking public interest" will be omitted, and therefore, the extinction of the Novel as a whole is a disproportionate judicial ruling.
34. According to the Appellant, the District Court erred in imposing the entire legal liability on him. He believes that "pursuant to the consideration of fairness, he who benefits from an activity should bear the consequences thereof". The Appellant thus insinuates, indirectly, that liability should have been imposed on the Formal Respondent, as the publisher who gained most of the royalties resulting from the publication of the Novel. The Appellant further notes that "contributory fault, implied consent or at least voluntary assumption of risk on the Respondent's part should be added in the matter at hand" as she knew for three years that he was writing a Novel inspired by the relationship he had with her.
35. The Appellant further complains on the lack of balance, according to him, in the remedies ordered by the District Court. He believes that the District Court erred in not issuing a more proportionate injunction, i.e. – 'limited in time', or alternatively one that conditions the publication of the Novel on the omission or re-editing of parts thereof. The Appellant further challenges the amount of monetary damages awarded, which is not based on proven damage to the Respondent, and does not properly weigh additional considerations.

The Main Arguments of the Respondent in the Appeal

36. According to the Respondent, the Appellant, who neglected to attach his affidavit to the Exhibit Volume on his behalf, does not dispute the factual findings determined in the judgment of the District Court. Under these circumstances, his arguments related to the legal conclusions at the basis of the Judgment creates a difficulty with the line of argument on which his appeal is based.
37. The Respondent further notes that the District Court rightfully denied the Appellant's argument, whereby the publication of an intimate relationship guised as a literary Novel is allegedly sufficient to make the protection against an expected violation of privacy redundant. According to her, the Appellant seeks to add an "artificial defense" to the provisions of the Protection of Privacy Law and the Defamation (Prohibition) Law, in contrary to the position of the legislator.
38. The Respondent relies on the ruling of the District Court whereby the fiction argument used by the Appellant is an "empty shell" and that the Novel's storyline is an exact reflection of reality, including many events which took place and were experienced by the Appellant and the Respondent in the presence of third parties. The Respondent supports her arguments on the reasoning of the District Court’s Judgment for the denial of the Appellant's position that the Novel is a fictional composition, and in the holding that the Appellant's arguments regarding the tests that should be applied in the deliberation of a fictional composition are baseless.
39. The Respondent further argues that the Appellant's position that "lawsuits for damage to reputation and violation of privacy that pertain to fictional compositions, will only be accepted in exceptional and rare cases" does not contradict the judgment but rather supports it. The issue at bar is indeed an "exceptional and rare case".
40. The Respondent also refers to additional factual arguments raised by the Appellant, including the passing of time between the beginning of the intimate relationship between the Appellant and the Respondent, and the publication of the Novel. However, there is no need to provide further details within the Appeal herein. Moreover, the Respondent argues that the Appellant's attempted "comparison" – i.e. the comparison of his personal liability to that of the publisher, is irrelevant.
41. According to the Respondent, the Appellant's fear that "similarity is far more evident than differences" was considered by the District Court, which specifically qualified and clarified that “a claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself " and where there is, in addition, "clear and inevitable identification".
42. The Respondent argues that the absurd expected outcome of "burial of masterpieces of the Hebrew Literature" described by the Appellant with respect to the Judgment of the District Court – has no grounds and is argued in vain. According to her, freedom of expression and artistic freedom will only be limited under "exceptional and extreme circumstances of certain and inevitable identification, and when the scope of the violation of privacy and damage to reputation and its magnitude, are that severe".
43. With respect to the Appellant's argument that a "third element" should be required – the establishment of malicious intent on the part of the author – the Respondent argues that such requirement imposes too heavy of a burden on the injured party – "to prove the veiled inner motivations of the perpetrator". Under the circumstances of the Appeal at bar, the Respondent believes that in light of her repeated pleadings not to publish the novel, the "malicious intent of the Appellant, and at the very least, his total apathy in view of the damage caused to the Respondent upon the publishing of the book – was also proven".
44. According to the Respondent, the Appellant's decision to publish the Novel under his own name contributed to her identification with the female protagonist of the Novel. According to her, the rulings of the District Court should not be viewed as "over-interference in considerations of artistic editing" but rather as an "obvious logical conclusion". The Respondent further denies the Appellant's argument that the District Court allegedly founded its conclusions on "hindsight", since "had she known of the many, more specific, details included in the book which lead to her identification, she would have overtly objected to the publication of the book". Not only did the Appellant deny the Respondent's pleas, he also ignored the pleas of his former wife and mother of his children, who appealed to him to avoid the publication of the Novel.
45. With respect to her alleged consent to include a detailed description of her unique work of art in the Novel, the Respondent refers to the factual ruling of the District Court in this respect: "all that was presented to her was a paragraph pertaining to her work". According to her, it was proved to the District Court that she had no knowledge of the Appellant's intention to include in the Novel descriptions that would violate her privacy and damage her reputation.
46. According to the Respondent, the superiority of the freedom of autobiographical expression in the American Law, on which the Appellant relies, exists "only in cases where it is intended to promote a justified public interest". Regarding the issue of public interest in publishing the Novel contemplated herein, the Respondent refers to the Judgment of Justice (his former title) A. Grunis in L.C.A. 5395/09: "In the matter at bar, the publication of the book does not reflect a public interest of high importance. The Respondent is not a public figure. The events which are argued to be described in the book occurred in private circumstances. The public has no special interest in these details" (ibid, Para. 6). Moreover, review of the judgments referred to by the Appellant clearly indicates that the infringements described therein are limited – in both scope and magnitude – in comparison to the damage caused to the Respondent; in any case – these are foreign judgments that do not bind the courts in Israel, which "already deliberated – in three different tribunals – the facts of the specific case at bar, and fully denied the thesis at the basis of the Appeal".
47. The Respondent argues that horizontal balancing between rights does not mean orders will be issued regardless of applicable law, but rather balancing between rights of equal standing and deciding which one will prevail under the circumstances of the case at hand. According to her, the District Court rightfully ruled that the Novel inflicts severe damage to her privacy and reputation, and that the Appellant and his book are not protected by the defenses prescribed by law. Moreover, the Respondent claims that the Appellant's proposal to allow the publication of the Novel subject to changes is merely a "manipulative empty proposal"; and putting a time limit of the publication, as he proposed, is expected to backlash in the future and hit her "again, and perhaps more severely than the first time".
48. With respect to the defense of good faith, the Respondent notes that this is a typical factual question that was discussed and decided by the District Court, and in which the appellate jurisdiction should not interfere. Moreover, according to the Respondent, the testimony of the Appellant's friend regarding his intentions in publishing the Novel is not free of doubt. The Appellant knew of the Respondent's demands and requests to refrain from publishing the Novel, thus it is unclear how he can  "hold the stick at both ends". According to her, the Appellant's criticism regarding the requirement of the artificial foundation to prove "malicious intent" in publications, should "be directed at the legislature that determined the limitations of the defense of good faith", and not at the Court.
49. With respect to the defense of "public interest", the Respondent claims that the Appellant relies in his arguments on the online response of an anonymous reader who said the book moved him. According to her, the Appellant's interpretation of the said term strips it of any content or meaning, and in any event – there is no room for comparison between the public interest and damage to the reputation of Captain R. (see C.C. (District Jerusalem) 8206/06 Captain R. v. Dr. Ilana Dayan (December 7, 2009); C.A. 751/10 John Doe v. Dr. Ilana Dayan (February 8, 2012) (hereinafter: "re. Captain R.") and the public interest in the publication of the Novel and the degree of the violation of the Respondent's privacy and damage to her reputation. In this context, the Respondent again refers to the above cited dictum of Justice (his former title) A. Grunis, that "the publishing of the book does not reflect a public interest of high importance". 
50. According to the Respondent, the Appellant's argument that "he who gains from the activity" should be held liable is unclear, and in any event – is not supported by the letter of the law. The Respondent further notes that attributing contributory fault to her own acts is inconsistent with the factual findings determined in the Judgment of the District Court.
51. The Respondent claims that the Appellant failed to present pertinent case law to support his argument that the monetary compensation awarded does not represent proper balance and proportion. On the contrary – the only judgment discussed in the Appellant's summation is the aforementioned re. Captain R., in which the District Court awarded non-pecuniary damages in the amount of ILS 300,000, which was later reduced by the Supreme Court to the amount of ILS 100,000. According to her, the scope of interference of the appellate jurisdiction in damages of that kind is restricted to exceptional cases only. Furthermore, according to the Respondent, the damages set by the District Court are significantly lower than the rate of statutory damages to which she is entitled in view of the magnitude of the violation of her privacy and damage to her reputation.
52. The Respondent further notes that the District Court refrained from deciding the copyright infringement cause of action on its merits. According to her, the Appellant's arguments with respect to both the issue of "fair use" and her alleged consent to the publication of the Novel, are inconsistent with the factual findings as determined in the judgment of the District Court. Additionally, as aforesaid, the District Court did not rule on the independent cause of action of copyright infringement, as it was content with the proof of the violation of the Respondent's privacy. However, the Appellant, on his part, did not bother to address this cause of action in his summations, and therefore, even on such grounds alone, his appeal cannot be accepted.

The Normative Framework

53. The decision regarding the nature of the relationship between "freedom of expression" and "the right to privacy" and the balance between them, is at the core of the social treaty. Section 1 of the Basic Law: Human Dignity and Liberty prescribes that “The fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel”. The "values of the State of Israel as a Jewish and democratic State" are embedded in the Basic Law (Section 1A) and they will guide us. We must turn to explore the fundamental principles at the basis of our legal system. Many pens have been broken, and many keyboards will be worn out in the attempt to define the proper balance between the contemplated basic values. The burden imposed on judges in decisions of a constitutional nature is a heavy one. The fear to possibly damage the freedom to create art, compositions which express the inner desires of the artist and are an inspiration the public, a model to be followed and identified with and at times even spark for social change, weighs against the fear to permit an invasion into the private realms of the individual. "The blessing is only found in that which is kept out of sight" (Bavli, Taanit H, B) with respect to issues pertaining to the inner-personal sphere of the individual. Emergence into the world, untimely and without the full consent of an individual, can actually destroy lives.
54. The proper judicial balance will be decided after examination of the conflicting rights in each case on its merits. The Appeal at bar concerns artistic freedom, including the autobiographical composition. Setting the boundaries of the exact applicability of this right, in consideration of its siblings in the family of rights – the right to a reputation and the right to privacy – is the essence of the Appeal at bar.

Freedom of Expression and Artistic Freedom

55. As is well known, freedom of expression is one of the pillars of our democratic governance, and is one of the basic anchors of the society in which we live. The importance of freedom of expression is amplified in the Israeli society, which is characterized by substantial, even polar, conflicts of opinion, on issues pertaining to the roots of human existence. Israeli law embodies perennial Jewish tradition which encourages dialogue, as concisely verbalized by the expression "these and these are the words of the living God" (both interpretations are legitimate) (Bavli, Eiruvin, 13, 2). Viewing the freedom of expression as a "superior" right (H.C.J. 73/53 "Kol Ha'Am Ltd. v. the Minister of Interior Affairs, PDI 7 871, 878 (1953) (hereinafter: "re. Kol Ha'Am") and as the "heart and soul of democracy" (Cr.A. 255/68 "the State of Israel v. Avraham Ben Moshe, PDI 22(2) 427, 435 (1968)) is grounded in the reality of life in Israel, as well as in the sphere of faiths and opinions which is at the basis of the definition of the State of Israel as a Jewish State.
56. In this sense, freedom of expression serves as a cultural anchor that is partially rooted in the democratic foundation of the State of Israel – "democracy is first and foremost a governance of consent – the opposite of a government based on force. The democratic process is therefore a process wherein the common goals of the people and the way to achieve them are selected through deliberation and verbal negotiation, i.e. by way of open settlement of the problems on the agenda of the State and free exchange of opinions in respect thereof" (re. Kol Ha'Am above, p. 876); the freedom of expression is also partially rooted in the Jewish foundation of the State – "and the entire dispute between the Tanaim, the Amoraim, the Gaonim and the Poskim, is in fact the words of the living God, and the Halacha includes them all; Moreover, this is the glory of the Holy Torah, whereas the Torah is read as singing, and the beauty of the song is the disparity of voices. This is the essence of music" (Aruch HaShulchan, Hoshen Mishpat, introduction). "Just as their facial features differ from one another, so their opinions are not identical, but rather they each have an opinion of their own… since Moses asked God, at death's door he said to him: oh Lord, the minds of each and all are revealed before you, and they are not one. When I pass, I plead you to appoint a leader that will be able to handle each and every one of them in accordance with his own mind" (Numbers Rabbah (Vilnius), Pinchas, Section 21;  for further detail see the dictum of Justice (his former title) M. Alon in E.A. 2/84, Neiman v. the Chairman of the Central Election Committee for the 11^th Knesset PDI 39(2) 225, 294-297 (1985); Aviad HaCohen "Freedom of Expression, Tolerance and Pluralism in Jewish Law" 45 Mincha le'Menachem (Hana Amit, Aviad Hachohen and Haim Be'er editors, 2007).
57. Hence, the freedom of expression in Israel stands on two foundations – Judaism and democracy (see the dictum of Justice (his former title) A. Barak in H.C.J. 6126/94 Senesh v. the Israel Broadcasting Authority PD 53(3) 817 (1999) (hereinafter: "re. Senesh").
58. Freedom of expression extends to artistic expression. This form of expression has unique characteristics, that require unique protection. The importance of art is in the development of human culture, and in being a means to express and execute one's inner wishes; its importance gives art its unique status. In his artistic work, the private boundaries of an artist are broken and place the artistic freedom as a social value. "Freedom of expression is the artist's freedom to open his heart, spread his wings and set his mind free" (H.C.J. 14/86 La'or v. the Council for the Review of Films and Plays PD 41(1), 421, 433 (1987). With respect to the scope of artistic freedom, it was held as follows: "Such freedom is more than the freedom to express commonly accepted opinions. It is the freedom to express deviating opinions, with which the majority disagrees. It is the freedom to not only praise the government, but also to criticize it. It is the freedom to create any work of art, whether of a divine artistic value and whether of no artistic value whatsoever, and even if it is – as the Council found – 'an offensive paste of erotica, politics and perversions of all sorts and kinds'" (ibid; on creation in Jewish law see: Alexander Ron "On Artistic Creation and Artistic Freedom" Parashat Ha'Shavua 63 (Truma, 5762)).
59. The status of artistic freedom is established, according to one doctrine, in the freedom of expression, i.e., freedom of expression in itself yields "the freedom of artistic work including literature and the various displays of visual art" (see: H.C.J. 806/88 Universal City Studios Inc. v. the Council for the Review of Films and Plays, PD 43(2) 22, 27 (1989)); according to another doctrine, the unique characteristics of the artistic expression require that artistic freedom be an independent right. "It can be seen as a standalone constitutional right. It is based in the perception of humans as autonomous creatures who are entitled to self-realization, both as creators and as consumers of art. Indeed, artistic freedom is the freedom of an artist to create. It is the freedom of choice with respect to the topic and its presentation, and the freedom of others to hear and comprehend" (H.C.J. 4804/94 Station Film Co. Ltd. v. the Council for the Review of Films and Plays, PD 50(5) 661, 677 (1997)).
60. I find no real difference between those who think that the status of the right to artistic freedom is that of a "primary right" and those who think it is merely a "secondary right" (for the distinction between a "primary right" and a "secondary right" see: Aharon Barak Proportionality – Constitutional Rights and Their Limitations 76-78 (2010) (hereinafter: "Barak, Proportionality"). Whether you support this position or the other, it is necessary to define and limit the characteristics of the right. This will be done according to the unique rationales on which it is founded. Such rationales form the "genetic code" of the right, and determine the scope of its applicability. They are conceived in the theoretical legal laboratory and move to the world of practice. The justifications can be viewed as the scalpel and hammer in the hand of the sculptor, assisting to clearly chisel the image of the right and distinguish between similar issues; "like silver touched by the silversmith – alloying and merging as he pleases" (the liturgical poem  "like substance touched by the artist", Yom Kippur prayer). In the realm of rights, the rule of "complete separation of realms" (Bavli, Brachoth 48, 2) does not apply. On the contrary, the rights are combined and integrated, sometimes to an inseparable degree. Chiseling is not an easy task, and it can occasionally upset one of the rights and its beneficiaries. The Court will not easily decide the exact scope of applicability of the right. Decisions of this kind have deep and wide impact, and may affect social life, commerce, culture, art, politics and more.

The Autobiographical Composition

61. Freedom of expression stands on three pillars: the exposure of the truth, personal wellbeing and its value in the democratic regime (see Aharon Barak "The Tradition of Freedom of expression in Israel and its Problems" Mishpatim 27, 223, 227-228 (5757)). These pillars do not equally support each and every instance of freedom of expression. Some instances are supported by all rationales; others are only sheltered by some. The strength of the rationales at the basis of each instance also varies. Examining the rationales and their strength will determine the level of protection extended to the expression. "Not all rationales [supporting the freedom of expression – N.S.] are equally present in all types of expressions. If an expression does 'not fall under' the rationales for freedom of expression, this may influence the degree of the legal protection extended thereto" (H.C.J. 606/93 Kidum Entrepreneurship and Publishing (1981) Ltd. v. Israel Broadcasting Authority, PD 48(2) 1, 12 (1994) (hereinafter: "re. Kidum"). The status of the autobiographical artistic freedom will be determined in light of the "quality" and "quantity" of rationales at its base. Prior to examining these rationales, we wish to post the following words as a guiding road sign: "The literature, painting and sculpture manifest the spiritual values which are inherent to the human soul; so long as there is a single drawing still concealed in the depth of our souls and yet unplaced on paper, art is obligated to produce it" (Rabbi Kook, Olat Reaya 2, p. 3).
62. The justification of personal wellbeing emphasizes that "without allowing people to hear and be heard, to read and to write, to speak or be silent, one’s humanity is flawed, since his spiritual and intellectual development are based on his ability to freely form his perspective" (see: H.C.J. 399/85 Kahana v. Israel Broadcasting Authority, PD 41(3) 255, 274 (1987) (hereinafter: "re: Kahana"). And elsewhere: "The importance of the principle [freedom of expression – N.S.] also lies in the protection that it extends to a distinctly private interest, i.e. the interest of each individual, by virtue of his humanity, to fully express his qualities and personal virtues; to nurture and develop its self to the maximum; to voice an opinion on any matter which he considers vital for him; in short – to speak his heart, so that life seem worthy to him (re: Kol Ha'Am p. 878). Case law further emphasized the close connection between this pillar of the freedom of expression – man's personal realization – and human dignity (see: Aharon Barak Human Dignity 717-721 (2014) (hereinafter: "Barak, Human Dignity")); it was held that "this argument [of personal wellbeing – N.S.] ties the freedom of expression to human dignity" (re. Kahana above, p. 273) and "what is human dignity without the fundamental right of a person to hear his fellow humans and make himself heard; develop his personality, form his perspective and achieve self-realization?" (P.P.A 4463/94 Golan v. Israel Prison Service PD 50(4) 136, 157 (1996)).
63. The autobiographical artistic freedom is in fact a manner of expression which materializes this justification almost in its entirety. Autobiographical writing is personal, intimate writing, which expresses the writer's life story. Such writing is a basic human need that is veiled in the hearts of many people. The execution, the relief experienced by the author when the drawing of ideas from the depths of his soul is completed, is the strongest evidence of the importance of the publication of an autobiographical composition. The expansion of the phenomenon of autobiographical writing, across all walks of life, is yet another evidence of the importance thereof to human development. We are no longer in the era when autobiographical writing is the realm of the few, those outstanding people who were lucky to describe, through the telling of their personal story, the story of their generation. Nowadays, every person with an internet connection and a keyboard can write his life story and publish it on the global network. Stories that were once secluded now move forward to the front of the stage, and stories that were previously published and famous now retreat into the background. Autobiographical writing is therefore of great importance, to the individual and society, for self-realization and the promotion of literary creation.
64. As aforesaid, the justification of the right to autobiographical creation does not end with the personal justifications for freedom of expression; societal justifications provide another plentiful source from which this right flows. Pursuant to the justification of exposure of truth "The freedom of expression must be guaranteed in order to enable the competition between various and diverse perspectives and ideas. From this competition – rather than from the dictation of a single governmental "truth" –the truth will arise, as the truth is destined to prevail in the battle of ideas" (re: Kahana, p. 273). The right to autobiographical artistic freedom assists the realization of this rationale. Seemingly, as the number of people who write their life stories will grow, human knowledge will grow respectively, as will the ability to reach the bottom of truth. Human knowledge is not equally dispersed in the town square. Groups with better exposure and accessibility to media have greater ability to communicate information. The existence of autobiographical writing will help us to break the "monopoly of knowledge" and also obtain information from non-conventional channels (for additional information see: Sonja R. West., The Story of Me: The Underprotection of Autobiographical Speech, 84(4) WASH. U.L. Rev.905, 944-948 (2006)) (hereinafter: "West").
65. The importance of autobiographical artistic freedom is also rooted in the democratic justification. "Freedom of expression is a pre-condition for the existence of democracy and its proper operation. Free voicing of opinions and their unlimited exchange between fellow men is a contitio sine qua non for the existence of social and political governance in which a citizen may fearlessly consider, through the study of information, what is required, as per his best understanding, for the benefit and wellbeing of the public and of individuals, and how the existence of the democratic governance and the political structure in which he lives can be secured… the democratic process is conditioned, as aforesaid, on the possibility to hold an open discussion of the problems on the agenda of a State, and the free exchange of opinions in respect thereof… it cannot be perceived that elections in a democratic regime be held if they are not preceded by an opportunity to exchange opinions and attempt mutual persuasion and without holding the deliberations and discussions that form public opinion, which has a vital role in every free regime. The above, as aforesaid, is as valid during elections as it is in other times" (H.C.J. 372/84 Kloppfer Nave v. the Minister of Education and Culture, PD 38(3) 233, 238-239 (1984)). The autobiographical artistic freedom cherishes the importance of the direct flow of information between the author and the public. Public channels of information are supervised by several "veto players" which prevent the free flow of information. Media, governmental censorship, the legal system and the laws, access to wealth – are just some of the barriers confronted by owners of information who seek its publication. The autobiographical artistic freedom gives importance to the direct encounter between author and readers. Furthermore, the autobiographical artistic freedom assists in making free expression more available to social and cultural minorities, which are under-represented in the central media, thus enriching the variety of voices heard in public. We have just recently witnessed the empowering and catalyst effect of autobiographical expression of experiences online on social and political revolutions in the neighboring Arab countries. This right is reinforced in this era of internet, where electronic means and media such as "Twitter", "Facebook" and blogs implement this idea in practice. Many scholars noted the connection between a wide spectrum of opinions heard in public and the existence of a lively and healthy democracy. The rules of democratic decision-making are the body; the freedom of expression is their soul. A democracy without freedom of expression is like a body without a soul. The autobiographical artistic freedom not only enables each citizen to vote and be elected, but also to influence society's cultural fabric (for an extensive review of the basis of the right to autobiographical writing, see: West, p. 948-957). Hence, the autobiographical composition is closely connected to the abovementioned three rationales of freedom of expression.
66. Its importance notwithstanding, freedom of expression, including the autobiographical artistic freedom, is not an absolute right, and it is not immune to restriction. "The freedom of expression and the artistic freedom are not the only values to be considered. A democratic society is based on a variety of values and principles, of which freedom of expression and artistic freedom are just a part of. The implementation of these diverse values and principles naturally mandates the restriction of the protection extended to the freedom of expression and the artistic freedom, to the scope that is required to protect such values and principles. My freedom of movement stops where your nose begins; my freedom of expression does not justify slander or libel against another person; it does not justify disclosing top state secrets or disturbing the peace; freedom of expression is not the freedom to give false testimony in court" (re: Senesh, p. 830). With this warning in our saddlebag, we will now review the right that collides with the autobiographical artistic freedom in the Appeal at bar – the right to privacy. 

The Right to Privacy

67.The right to privacy is a constitutional right. Section 7 of Basic Law: Human Dignity and Liberty instructs that:

“(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.

(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

The status of the right to privacy is also expressed in the case law of the Supreme Court as “one of the freedoms that shape the character of the regime in Israel as a democratic regime, and one of the supreme rights that establish the dignity and liberty to which a person is entitled as a person, as a value in itself” (Cr.A. 5026/97 Gilam v. The State of Israel (June 13, 1999) (hereinafter: “re. Gilam”); for further details, see HCJ 8070/98 The Association for Civil Rights in Israel v. The Ministry of the Interior, PDI 58(4) 842 (2004)).

68.The proper balance between the right to privacy and other rights was determined by the legislature in the Protection of Privacy Law. With respect to the interpretation of the act, case law has already been established whereby laws that were passed before the enactment of the basic laws will be interpreted in the spirit of the provisions of the basic law. “This law (Basic Law: Human Dignity and Liberty – N.S.) granted a super-statutory constitutional status to the right to privacy. This status should affect the interpretation of all of the laws, both those passed before the legislation of the basic law and those legislated thereafter. This constitutional status of the right to privacy should also affect the interpretation of the Protection of Privacy Law” (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, PDI 61(1) 581, 602 (2006) (hereinafter: “re. Jane Doe”); for further details see F.Cr.H 2316/95 Ganimat v. The State of Israel, PDI 49(4) 589 (1995)).

69.The law’s protection of the right to privacy is relatively new. It began approx. one hundred years ago.The starting point of the discussion regarding the right to privacy, its status and its justifications was expressed in an important article from the beginning of the last century, in which Justices Warren and Brandeis pointed to the existence of the right to privacy (Samuel Warren & Louis Brandeis, The Right to Privacy, 4 H. L. R. 193 (1890) (hereinafter: “The Right to Privacy”). The innovation of the authors was not reflected in the creation of a right “ex nihilo”, but rather in conceptualizing its various appearances in legislation. This approach does not recognize the benefit inherent in defining privacy as an independent right. Privacy is limited to how it was defined in legislation and in case law, which must be interpreted narrowly in order to prevent double protection in view of the basic assumption that the legislature does not waste ink. A similar approach was initially established in the case law of the Supreme Court: “The Protection of Privacy Law is intended to create and define new boundaries, and there was therefore, no need to redefine existing offences as prohibited acts… why would the legislature deem fit to once again prohibit in later legislation acts of violence that have already been determined as criminal offences in the existing penal law, only to include them in the definition of a new prohibited act, alongside which a maximum penalty is set, which does not exceed the penalty for any one of the existing violent offences. This is double legislation, which is entirely unnecessary” (see the opinion of Justice (former title) M. Shamgar FH 9/83 The Military Appeals Court v. Vaknin, PDI 42(3) 837, 853 (1988); for further details see L.Cr.A 9818/01 Biton v. Sultan, PDI 59(6) 554 (2005)). The concept that deems the right to privacy as a right limited solely to its appearances in legislation and to a narrow interpretation thereof, did not last forever. The right to privacy soon acquired a permanent status in the family of constitutional rights. Buds of this concept are found in the opinion of Justice (former title) A. Barak in HCJ 2481/93 Dayan v. Major General Wilk, Jerusalem District Commander, PDI 48(2) 456 (1994) (hereinafter: “re. Dayan”): “Every person in Israel is ‘entitled to privacy’ (Section 7(a) of Basic Law: Human Dignity and Liberty)… now that is has been afforded a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ ‘and with the understanding that we are concerned with a provision that determines ways of life’… a constitutional provision must be interpreted ‘with a broad outlook, and not technically’… hence the approach – which is accepted in enlightened democratic countries – that constitutional provisions must be interpreted ‘generously’… with a substantive approach and not a ‘legalistic’ approach… with a pertinent approach and not a ‘technical’ or ‘pedantic’ approach… against the background of this approach it may be ruled that the constitutional right to privacy extends, inter alia – and without any attempt to delimit the right with all of its aspects – to a person’s right to conduct the way of life he wishes behind closed doors, without outside interference. A person’s home is his castle, and within its confines he is entitled to be left to his own devices, for development of the autonomy of his will” (ibid, on page 470).

70.Indeed, “The kids which you left have become goats with horns” (Bavli, Brachot 63 p. A), the buds sprouted, and received precise and clear expression in the opinion of Justice (former title) A. Barak in re. Jane Doe (above, on pages 595-597): “The right to privacy is one of the most important human rights in Israel… its roots are deeply embedded in our Jewish heritage… it is therefore called for by the values of Israel as both a Jewish and democratic state. It is recognized by Israeli common law as a human right… in 1981 the Protection of Privacy Law was enacted. Privacy was defined in the law (Section 2) in a manner which does not ‘cover’ all accepted forms of privacy. With respect to a violation of privacy over and above the definition in the law, Israeli common law continues to apply… in 1992, a material change occurred in the status of the right to privacy… Basic Law: Human Dignity and Liberty explicitly recognized a constitutional right to privacy… a constitutional right to privacy was thus recognized at a broader scope than the scope of privacy in the Protection of Privacy Law. Indeed, by virtue of the basic law, privacy became a super-statutory constitutional right… any and all government authorities – including any court and tribunal in the state – must honor it”.

71.The right to privacy is a constitutional right. It must be interpreted in a “generous and broad” manner, according to its justifications, in order to realize the purposes underlying it. However, the scope of the protection of privacy will not be determined broadly or narrowly but rather precisely. For the purpose of balancing between clashing rights, when the court is faced with a decision which calls for the drawing of the exact outlines of the rights, the court will employ strict interpretation, examining which of the rationales realized in the manifestations of the rights before it must be preferred (see: Aharon Barak, Interpretation in Law, Vol. 3: Constitutional Interpretation 83-84 (1993) (“Interpretation in Law (Constitutional Interpretation); and – Aharon Barak, Proportionality in Law 94-97 (2010)). The accepted opinion in our law is that the scope of the constitutional right should not be reduced in order to take into consideration the collective or the right of others. These will be taken into account at the following stages of the constitutional analysis (ibid). Israeli law therefore distinguishes between the application of the right and its protection. The mere application of the right does not necessarily guarantee a comprehensive protection of it. Application is one thing and protection another. Broad interpretation does not equal full protection.

The Right to Privacy – Scope

72.The ambiguity of the right to privacy is well-known (see for example: Re’em Segev “Privacy, its Significance and Importance” Privacy in an Era of Change 25, 26 (Tehilla Shwartz Altshuler editor, 2012) and the authorities therein) (hereinafter: Segev “Privacy, its Significance and Importance””). This ambiguity, which in the opinion of some of the scholars is derived from the social character of the right and from its technological context, makes it difficult to define the exact boundaries of privacy (see for example: Michael Birnhack “Control and Consent: The Theoretical Basis of the Right to Privacy” Mishpat Umimshal 11 9, 13-19 (2008) (hereinafter: “Control and Consent”)). “The right to privacy is a complex right, whose boundaries are not easily determined” (see HCJ 1435/03 Jane Doe v. The Haifa Civil Service Disciplinary Court, PDI 58(1) 529, 539 (2003)).

73.In this appeal, we are exempt from deciding the definition of the exact boundaries of the right to privacy. We are concerned – in the book at bar – with the core of the right to privacy. “With respect to situations of ‘classic privacy’, there appears to be broad consent. For example, we agree that it is appropriate to protect the acts of a person in his own home, the content of telephone conversations or of sealed envelopes, and certain types of information, such as our medical condition, our sex life, … when an outside agent intervenes without our permission in any of the above, we feel that our privacy has been violated” (see ‘Control and Consent’ above, on page 13).

The Justifications for the Right to Privacy

74.Many justifications have been given in literature and case law for the right to privacy. There are those that rest on a personal basis and those that are based on social values. These justifications can be split into two separate categories: the first, intrinsic-inherent justifications; the second, instrumental-purposeful justifications. The distinction between the types of justifications is clear: the intrinsic justification deems the right as a purpose in itself; the instrumental justification deems the right as a means of achieving a nobler purpose.

The Intrinsic Justification

75.The intrinsic justification for privacy asserts that a violation of privacy is equal to a violation of a person’s dignity, welfare and his ability of self-realization. This outlook is based on the moral theory of the philosopher Immanuel Kant. According to Kant, man exists as an end in himself. Use of man as an object for the purpose of achieving another purpose constitutes a violation of his dignity:

“Man, and in general every rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end… Persons are, therefore, not merely subjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, i.e., exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

76.A person is not an “object”; he should not be used as a means to achieve other purposes. A person has emotions, feelings and desires. Blatantly ignoring these and crudely trampling them is intolerable. The mere violation of a person’s privacy is the prohibited act. Intrusion into and exposure of the private space renders the person a means for fulfilling the purposes of the exposer and intruder. Privacy is the heart and core of human autonomy. This is the space in which everything dear to a person, his emotions, his inner desires, his innermost secrets, are found; all of these are part of the heart and core of the right to privacy. Violation of these is a grave violation of the person’s dignity. In the words of the scholar Bloustein:

“The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.” (Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964) (hereinafter: “Bloustein”).

And in the words of the scholar Benn:

“To conceive someone as a person is to see him as actually a chooser, as one attempting to steer his course through the world, adjusting his behavior, as his appreciation of the world changes, and correcting course as he perceives his errors. It is to understand that his life is for him a kind of enterprise, like one’s own… To respect someone as a person is to concede that one ought to take the account of the way in which his enterprise might be affected by one’s own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration” (Stanley I. Benn, Freedom, and Respect for Persons, in Privacy & Personality 1, 9 (J. Roland Pennock and John W. Chapman eds., 2009)).

77.Indeed, the right to privacy is derived from the right to dignity and is closely related to it. “The right to privacy therefore concerns the person’s personal interest in developing his autonomy, his peace of mind, his right to be with himself and his right to dignity and liberty” (see C.A. 8483/02 Aloniel Ltd. v. McDonald, PDI 58(4) 314, paragraph 33 of the judgment of Justice E. Rivlin (March 30, 2004)); for further details see re. Jane Doe above in paragraph 10 of the judgment of Chief Justice A. Barak; Ruth Gavison “The Right to Privacy and Dignity”, Human Rights in Israel – An Essay Collection in Memory of H. Shelah 61 (1988)).

Instrumental Justifications

78.Further justifications deem the right to privacy as a means to achieve substantive purposes. The right to privacy is perceived as the basis of the individual’s wellbeing; as vital to ensuring relationships of trust between people, and particularly intimate relationships; as a means of ensuring proper community life; as a basis for the existence of a democratic regime.

79.Several theories point to the fact that privacy is important for the purpose of improving people’s personal wellbeing, and for the possibility of maximum self-fulfillment. Private space gives a person the possibility to meditate and challenge the common world view of the society to which he belongs. Private space allows a person to design his private home as he wishes. This space sometimes expresses the innermost secrets that a person, for his own reasons, does not wish to publicly reveal. A person is entitled to the possibility of building his world as he wishes, which cannot be done when he is being watched from all around. The social view is sometimes paralyzing, preventing the individual from undertaking original and bold action. Private space is where the individual can break the fixed social boundaries. Violating the private space denies the individual the possibility of creating a unique and individual personal world. Unique literary expression of this concept is found in George Orwell’s book “1984”, which has become one of the world literature’s invaluable assets. See the opinion of Justice Brandeis:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.” (Olmstead v. United States, 277 U.S. 438, 479 (1928).

And in the words of the scholar Bloustein:

“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality… Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” (Bloustein, 1003).

For further details on the issue of personal wellbeing, see: R. v. Dyment, [1988] 2 S.C.R. 417. For further authorities, see: Michael Birnhack, Private Space: Privacy, Law & Technology 117-120 (5771) (hereinafter: “Birnhack, Private Space”).

80.A violation of privacy is a violation of personal autonomy. Tearing down the screen separating the private and the public realms violates a person’s right to conduct his life as he wishes. Some wish to conduct their liveson the radio waves, in the ‘big brother house’, or on the pages of the newspaper; others wish to live their lives peacefully and modestly, far from the spotlight, from the public eye, and from the lens of the camera. Exposure of privacy by another violates a person’s right to conduct his life as he wishes. “…The right to privacy draws the line between the individual and the public, between ‘me’ and society. It delineates a defined area in which the individual is left alone, to develop his ‘self’, without the intervention of others…” (re. Dayan above, on page 471).

“Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from this liberty” (Pavesich v. New England Life Insurance Co., 50 S.E. 68, 71 (Ga 1905)).

81.Note, the freedom of expression and the right to privacy do not merely clash; they also complement one another. A violation of privacy is sometimes also equal to a violation of the freedom of expression. The existence of a protected private space, to which the individual may withdraw, be alone, is sometimes a condition to the existence of creative activity. Creativity, which deviates from the existing social order, struggles to emerge under the penetrating gaze of the community. The screen of privacy protects the existence of the internal world. This world will be exposed to the audience when the screen goes up. Premature exposure and without consent of the unfinished product, will lead to failure; or as in the theatre world, will lead to harsh reviews which might leave the creative work in its unripe stage, and prevent its coming to fruition. Personal space is vital for the development and emergence of different ideas in the public realm. Individuals with free opinions are an essential ingredient for the existence of democracy. Without freedom of thought, made possible where there is a personal space, a healthy society cannot be developed. Indeed, the right to privacy is not necessarily contrary to the freedom of expression and creation, it also serves them.

82.The Torah describes the public setting in which the first Tablets of Stone [Luchot HaBrit] were given, and the breakage; and the second tablets that were given to Moshe Rabbeinu (Moses) alone, and were a masterpiece. The first tablets were given “amid great pomp and circumstance” (Rashi, Shemot 34, C) on Mount Sinai in front of the entire Jewish nation. The second tablets were given to Moshe Rabbeinu in silence: “No man may ascend with you nor may anyone be seen on the entire mountain. Even the flock and the cattle may not graze facing that mountain” (Shemot 34, C). It was stated thereon in Midrash Tanchuma ((Warsaw) Ki Tisa, 31): “The first tablets were given in public, and therefore the evil eye had control over them and they were broken, and here G-d told him there is nothing better than modesty”. We can see that modesty and personal space may produce great creation. The creation is not necessarily the result of the freedom of expression. It is actually the scaling down, the privacy, the modesty, that may be fertile ground for growth and renewal. The secret of the dialogue and actions taken between is the proof. Needless to say, humans, the crown of creation, are the result of the most intimate relationships. This teaches us that infinite exposure is not always a guarantee for creation; on the contrary, there are concealed areas that we must strictly preserve as such, not only as protection against harm, but in order to ensure productivity, creation and fulfillment. “And it is written ‘with the modest is wisdom’ (Mishlei 11, B), since wisdom connects two things, and it is the primordial power, as is known, and through this things change from one state to another, and this is the meaning of the verse ‘with the modest is wisdom’. Therefore, when you want to plant a seed and want it to change its form, you conceal it and insert it into the ground, so that it may arrive at its primordial state, which is wisdom, as is recalled” (Torat Hamaggid, Torah, Parashat Balak).

83.Harav Kook (Orot Hakodesh C, Part Two, Vol. Three, Title E) addresses the required balance between a person’s need to be alone and his need for company: “Out of these two opposing judgments, the noble person must stand in the midst of two tendencies: to separate himself and to draw close. With this, he attains conceptual purity, on the one hand, and the natural strength that exists in simplicity and natural freshness, on the other”. Harav Kook further eloquently writes in his essay “A time to be silent and a time to speak” (Orot Hakodesh, Part Two, Vol.  Three, Title H): “The structures of a person’s spirit suffer great destruction when the inner light of “a time to be silent” appears, when the holy and supernal muteness in the splendor of its glory and the gravity of its burden fills his entire soul. If he rebels against it and breaches it, this rebellion against the sovereignty of silence destroys all of its structures, all of the treasury of innocence and uprightness, of profundity and supernal connection, these are all shattered. And he will later need, if he wishes to build his ruins, to reestablish everything anew, and the wise person will be silent at that time. However, if a person gives silence its due when it first appears, it will perform its duty, establish its muteness, penetrate in its profundity and reach the perplexities of its depths, from which it will bring forth mighty foliage and branches with the power of great and fresh blossoming. The leaves will be filled with power and the expression of his lips will emerge. Then the “time to speak” will begin in its glorious majesty and the spirit of silence will be the angel that acts upon the outpouring of speech, which will flow like streams, with great abundance and all beauty. ‘[I] create the speech of the lips. Peace, peace, to the distant and to the near,’ says Hashem, ‘and I will heal him’.  Its fruit will be for food and its leaf for healing, freeing the mouth of the mute”.

84.The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the beady eye of the state is vital to the existence of a pluralistic society which gives a stage to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression. This position was recognized in the past by this court, which held that the right to privacy is “one of the freedoms that shape the character of the regime in Israel as a democratic regime” (see Paragraph 9 of the judgment of Justice H. Ariel in re. Gilam; see also: Campbell v MGN Ltd. [2004] UKHL 22 (hereinafter: “re. Campbell”). For an extensive review see: Annabelle Lever, Privacy Rights and Democracy: A Contradiction in Terms? 5 Contemporary Political Theory142 (2006)). And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

The Right to Privacy and Intimate Relationships

85.Further justification for the right to privacy is found on another level of the human existence – interpersonal relationships. “It is not good that man be alone” (Bereishit B, 18); “human beings are by nature political animals” (Aristotle, Politics, Book A, 27-28 (Rachel Zelnick-Abramovitz Editor, Nurit Karshon translator, 2009)); “either companionship or death” (Bavli, Taanit 23, p.1). These are a few of the texts written throughout the generations to describe the importance of relationships in the lives of humans. Each one of us is involved in many relationships: family; work; friends; acquaintances; neighbors; service providers. All of the above and many others encircle and surround our daily routine. Just as their facial features differ, their relationships differ. And in the case at bar: a father-son relationship does not resemble a relationship between husband and wife; between friends, between distant and close acquaintances; etc.

86.There are “certain relationships that require background conditions of privacy to enable their optimal existence” (Birnhack, Private Space above, on page 120). Deep friendships and connections between couples are built and based on keeping the most intimate of secrets. A world in which privacy is trampled and secrets become common is a world in which people will refuse to bare their soul to their friends for fear of it being exposed to the entire world. The same is true to professional relationships and friendships, a fortiori with respect to romantic relationships. In such relationships, couples mutually reveal to one another their most secret desires, wishes and aspirations. A partner also reveals to his partner his positions and opinions regarding work colleagues, family members, friends and previous partners. This sensitive information is given to the other partner on a silver platter, under the assumption that he will act as a loyal ally and confidant. This is the “unwritten” contract between partners in a long-term romantic relationship. These are the “terms of employment”. Any sensible person knows this. “The growth of a couple’s relationship… needs, inter alia, the couple’s privacy from the outside world. The privacy enables intimacy, which is a necessary condition for a couple’s relationship… the privacy allows trust between the couple and creates the space… where they can be authentic and gain each other’s support” (Birnhack, Private Space above, on page 121; for further references, see: Segev, Privacy, its Significance and Importance above, on pages 83-86).

87.A special place is kept for intimate long-term relationships between couples, and particularly for married life. The commitment created between two spouses is not limited to economic arrangements. These constitute the body of the marriage, while the trust and love create its soul. Marriage is based on “love, friendship, peace and companionship”. One acts as the other’s “confidant”. The self-sacrifice, the strong friendship, the endless empathy, these are the essence of married life. “Therefore a man shall leave his father and his mother and cling to his wife and they shall become one flesh” (Bereishit B, 24). The separateness becomes oneness. The day-to-day challenges that couples face, maintaining the relationship, household, professional career and childrearing, all constitute a quasi- “melting pot” for this personality merger. Many studies have indicated that the mental identity of spouses changes with time. The partners go from separate beings to a single family unit (see, for example: Milton C. Regan, Family Law and the Pursuit of Intimacy 147 (1993)). Spouses are exposed to one another, in happiness and in sadness, in times of hardship and crisis, as well as in times of success and comfort. They share with one another their thoughts and feelings about what goes on around them. In many relationships, spouses read one another, like an open book - “no secrets escape them”. True in this regard are the words appearing in the traditional deed of conditions: “and from this point forth, the said couple will act jointly with love and affection, and will not conceal or hide or lock away from one another…” (Q&A Nachlat Shiva, Shtarot, Part I). It would not be superfluous to note in this context the degree of closeness between a husband and wife, inter alia, in relation to the laws of testimony (disqualification of a husband’s testimony also disqualifies the wife’s testimony) and the laws of agency (a husband is appointed as an agent for his wife for things that others cannot do as her agent). I will also mention the provisions of Section 3 of the Evidence Ordinance [New Version], 5731-1971 that “In a criminal trial, one spouse is not competent to testify against the other”.

88.The right to privacy in its romantic form is in fact the right of the spouse not to be exploited by his spouse. A situation in which one spouse reveals to the other spouse everything that is on his mind, and the other spouse uses the information for his own purposes – is intolerable. A legal regime that does not prevent this does not protect the unwritten contract of marriage. The privileges between various individuals in society are regulated in legislation. Is it conceivable that the law, which regulates attorney-client relations; doctor-patient relations; psychologist-patient relations; bank-customer relations; will not extend its protection and defend the most sensitive relationship in a person’s life – between man and wife, between spouses?! (For further details, see: Hanoch Dagan & Carolyn J. Frantz, Properties of Marriage 104 Colum. L. Rev. 75, 82-83 (2004) and the authorities appearing therein). It is for good reason that the “public hearing” principle which was set forth in Section 68(a) of the Courts Law [Consolidated Version], 5744-1984, whereby “court hearings will be open to the public”, retreats in “family matters, within the meaning thereof in the Family Court Law, 5755-1995”, pursuant to the provisions therein in Section 68(e)(1).

89.The culmination of the joint spousal relationship is embodied in long-term relationships, with a joint economic regime, regardless of whether we are concerned with the institution of marriage or with common-law partners. These relationships include an increased duty of care vis-à-vis the joint intimate space of the couple. Even romantic relationships that are not characterized by a full economic partnership establish an individual ‘fiduciary duty’ to protect the spouse’s intimate space. The opening of the intimate space to the other partner occurs in the early stages of the relationship. The protection of this space will emerge at the initial stages of the intimate relationship.

90.These are the main justifications for the right to privacy. However, before we begin discussing the proper balance, we will take a look at comparative law for support in deciding the legal issue that was placed at the center of the appeal at bar.

English Law

91.In the past decade, the right to privacy has acquired a place of honor in English case law. In the past, the only grounds for a suit for a violation of the right to privacy was a breach of confidence, which requires three separate elements to be proven: (1) the nature of the information that was revealed mandates protection of its confidentiality; (2) the information was transferred under circumstances which establish a duty of confidence; (3) misuse or unauthorized use of the information (for further details, see: The Law of Privacy and the Media 163-222 (Mark Warby, Nicole Morehman and Iain Christie eds., 2011 (hereinafter: “The Law of Privacy and the Media”)). However, in 2008, the House of Lords adopted, in re. Douglas v. Hello! Ltd. [2008] 1 A.C. 1 (H.L. 2007) (appeal taken from Eng.), an additional independent cause of: ‘misuse of private information’. While the cause of breach of confidence emphasizes the breach of the confidential relationship between the parties, the cause of misuse of private information “highlights” the violation of privacy even without the existence of a confidential relationship. See Paragraph 51 of the opinion of Lord Hoffmann in re. Campbell (above):

“The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.”

92.The said legal development expresses the rise of the importance of the right to privacy in English law. This right, which was defined, in practice, as a right pertaining to an ‘in personam’ relationship became an ‘in rem’ right. The cause of ‘misuse of private information’ requires the following two conditions to be proven: (1) the information that was misused is indeed information that is protected by the right to privacy, as it appears in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the “European Convention for Human Rights”); (2) examination of the balance between the freedom of expression and the right to privacy, as they appear in the European Convention for Human Rights, tips the scale in the direction of the right to privacy (see, for example: re. Campbell above and: The Law of Privacy and the Media above, 226).

93.In the said re. Campbell, the House of Lords required The Mirror magazine to pay model Naomi Campbell damages following publications regarding drug rehabilitation treatments which she underwent – a publication that amounts to a violation of her privacy. The judgment discusses at length the nature of the cause of ‘misuse of private information’. With regards to the first condition, which concerns the definition of the information that is protected by the right to privacy, the House of Lords referred to the “reasonable person” test, which was determined around a decade prior thereto in re. ABC, in which the motion of a plant owner to identify the methods of killing opossums at his plant as information protected by the right to privacy was denied:

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behavior, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63).

[Emphasis added – N.S.].

94.On a side note, we will mention that the same test was adopted in the case law in New Zealand (see, for example: P v D [2000] 2 NZLR 591) and it is also supported in academic literature (see, for example: William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960)). Moreover, see Paragraphs 20-21 of the opinion of Lord Nicholls of Birkenhead in re. Campbell, in which it was held that in terms of the question of whether the information is protected under the right to privacy, the rights of others or other interests that may be harmed due to prevention of the publication should not be taken into account. These will be considered at the stage of the balancing of the rights. The guiding question at the initial stage is whether the injured party had a “reasonable expectation of privacy” with respect to the facts that were exposed:

“20. … article 10(2), like article 8(2) [of the European Convention for Human Rights – N.S.] recognizes there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.

21. Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.

[Emphasis added – N.S.]

95.It was further held in re. Campbell that the manner in which the clashing rights will be balanced will be decided in each case on its merits. Freedom of expression does not prevail in principle over the right to privacy. It is necessary to meticulously examine the clashing rights in each and every case, and to refrain from determining a generic hierarchy between the two rights (see, for example: In re S [2004] Fam 43 (C.A. 2003)). In balancing between the two rights, i.e. the protection of privacy on the one hand, and the freedom of expression on the other, it is necessary to examine whether the infringement of privacy is supported by the existence of a ‘sufficient public interest’. Against the background of the aforesaid, it appears that reporting on a private person who is undergoing rehabilitation treatments, although they are a public figure, does not fulfill the said condition:

“I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilized values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favor of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicized in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognized and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatsoever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information”.

(Re. Campbell above, in Paragraphs 55-56 of Lord Hoffmann’s judgment).

[Emphasis added – N.S.].

In other words:

“The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it.”

(Ibid, in Paragraph 157 of the judgment of the Baroness Hale of Richmond).

96.Re. McKennitt, the circumstances of which are relevant to the appeal at bar, discussed the suit of Ms. McKennitt, a Canadian folk singer, whose main claims were based on an infringement of her privacy (see Mckennitt v. Ash [2008] QB 73 (C.A. 2006) (hereinafter: “re. Mckennitt”)). In 2005 (before the House of Lords adopted, as stated in Paragraph 91 above, an additional independent cause of ‘misuse of private information’), the singer’s friend published a book which exposed extensive parts of her private life, including: details regarding her relations with her late fiancé, her health, and details about her sex life. It was ruled that because of the trust relationship that prevailed between the singer and her friend, the publication of the book fell under the duty of confidence (the ‘breach of confidence’), and that it fulfilled the following three elements: (1) a friendship trust relationship existed between the parties; (2) the nature of the information that was published mandates maintaining its confidentiality; (3) misuse and unauthorized use was made of the information.

97.However, in another case, English case law recognized ‘the right to tell one’s own story’ where the information is “joint” and was acquired in an experience common to the two partners. A v B [2003] Q.B. 195 (C.A. 2002) (hereinafter: re. A v B). At the center of the case was a famous soccer player who had casual extramarital sexual relations with two women, and petitioned against a newspaper article based on their testimonies. It was ruled that the women have the right to publish their story, and it prevails over the soccer player’s right to prevent the publication. The freedom of expression was preferred over the right to privacy. The main grounds for dismissing the soccer player’s petition were based on the short acquaintanceship between the couple, which did not establish for any one of the parties an expectation of a ‘fiduciary duty’ (ibid, in Paragraph xi):

“The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognizing the special status of a lawful marriage under our law, the courts, for present purposes, have to recognize and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it”.

[Emphasis added – N.S.].

98.Thus, in re. McKennitt above, the court distinguished the case before it from the A v B case, ruling that the latter concerned a casual sexual relationship, and as such does not prevent either one of the partners from describing his story at the expense of the other party. However, it was clarified that in a stable and lasting relationship, by virtue of which a ‘duty of confidence’ arises, the right to privacy will prevail over the freedom of expression:

“…the relationship between Ms. Mckennitt and Ms. Ash…was miles away from the relationship between A and C and D. In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the woman up they realized that they were entering into a relationship of confidence with him …” (Paragraph 30).

99.On a side note we will point out that the fundamental position of the English legal system with respect to the status and scope of the right to privacy was adopted, with minor changes, by other common law courts (see, for example: Canada – Aubry v Les Éditions Vice Versa Inc [1998] 1 SCR 591; New Zealand – Hosking v Runting [2005] 1 NZLR 1).

The European Court of Human Rights 

100.‘Privacy’ law developed in English law under the patronage of the European Convention for Human Rights and its interpretation by the European Court of Human Rights. It is only natural that we examine the position of the ‘bride’ in the issue laid before us.

101.Re. Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR 2012 (hereinafter: “re. Von Hannover”) concerned the claim of several members of the Monaco royal family against a German newspaper which published their pictures while they were on a private vacation. It was ruled that in the clash between the freedom of expression and the right to privacy, it is necessary to consider the following criteria: (1) the extent of the contribution to public debate; (2) whether the person is a public or private figure; (3) the conduct of the person with respect to violation of his privacy prior to the publication; (4) the content, form and consequences of the publication; (5) the circumstances in which the information was obtained.

102.We will now explore the nature of these criteria: (1) it was ruled that the contribution to public debate is not limited to political matters or to matters pertaining to crime and corruption. Information that is relevant to the field of entertainment and sport also contributes to public debate. However, rumors regarding marital difficulties of a public figure or financial difficulties of a person from the field of entertainment are not protected by this defense; (2) it was ruled that reporting on a person holding a public position is not similar to reporting on a private person. While reporting on a public figure is indeed essential to the existence of a democratic society, reporting on a private person is not required to such an extent; (3) it was ruled that past cooperation of the subject of the publication with the media will work against him. However, not all cooperation with the media can serve as an argument that legitimizes the publication; (4) and (5) it was ruled that the other elements serve as indicators that attest to the extent of the violation. Thus, for example, a publication in a national newspaper is in no way similar to a publication in a journal intended only for workers of a certain sector. 

103.In re. Axel Springer AG v. Germany [GC], no. 39954/08 ECHR 2012, a similar suit was heard regarding the publication of a report on the arrest of a German celebrity. The European court reiterated the tests determined in re. Von Hannover above, stating (in Paragraph 93) that in balancing between the rights, both the manner in which the information reached the publishing party and the extent of its credibility must be addressed.

Continental Law

104.The German legal system developed a three-stage test in order to handle situations in which it is alleged that the right of a person to privacy has been violated. First, the extent of the violation of privacy is examined; second, the justifications for the violation are examined, for example: public interest and the consent of the subject of the publication; third, an examination is carried out of the proper balance between the violation of privacy and the right exercised, while addressing the manner and scope of the publication and subjective matters (such as: intention to harm). However, insofar as the violation of privacy touches on the “core of human life”, the said balancing will not be conducted at all, and the publication will be prohibited (for an extensive description regarding the development of the German law and further authorities, see: Paul M. Schwartz & Karl-Nikolaus Peifer, Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?, 98 Cal. L. Rev. 1925 (2010) (hereinafter: “Prosser’s Privacy”). Translations of the judgments are taken from this article). As a consequence, a violation of the core of the right to privacy will not be allowed, even where it is balanced against a broad public interest:

“Even serious public interests cannot justify encroachments of this area; an evaluation according to the principle of proportionality does not take place” (BVerfGE 80, 367 (1998) NJW 1990 563)”.

105.In 2008, the German Federal Constitutional Court issued a judgment in a similar case to the case at bar: (BVerfGE 119, 1 (Ger.) 61 NJW 39 (2008) (Ger.)) (a detailed description of the judgment appears in Prosser’s Privacy above on pages 1932-1937). According to the facts of the judgment, Maxim Biller (hereinafter: “Biller”) published, in 2003, a novel revolving around a romance between an author by the name of ‘Adam’ and an actress by the name of ‘Esra’. The novel describes the gamut of difficulties faced by the couple, and references, inter alia, the character of ‘Esra’s’ family and her fatalistic personality, including: her mother’s arrogant character; details regarding her daughter who was born from her first marriage, and a description of the sexual relationship between them. According to Biller’s former partner, there is a considerable similarity between her character in real life and the character of the protagonist as described in the story’s plot (‘Esra’). According to her, the novel contains many intimate details in connection with the relationship she had in the past with the author of the work – Biller, without obtaining appropriate consent. Her mother further stated that the novel contains intimate details that publicly expose her personality which is presented in the novel in a negative light.

106.At the initial stage, the court dealt with the examination of the artistic medium through which the violation of privacy was committed. Ostensibly, the book written by Biller is a fictional novel, any connection between which and reality is completely coincidental. However, according to his former partner, the novel contains precise details and in fact constitutes a ‘memoir’ (i.e. an autobiography) in the guise of a novel. At the second stage, the court examined whether readers belonging to the broad social circle of the average person (such as: the injured party), as distinguished from the circle of celebrities and public figures, could indeed identify her by reading the novel. Examining the extent of the novel’s classification as fiction or biographical will be examined in view of the social circle, i.e. – identification of the character described in the novel by the social circle, is nothing but a presumption that the novel is based on real life – ‘roman à clef’. Case law has developed a dual test intended to help identify the character described in the novel: One, the degree of similarity between the literary character and the real character; two, the degree of the violation of privacy. An intermediate violation of privacy may be remedied by a weak likeness between the literary character and the real character; and vice versa, a weak violation of privacy may be remedied by a stronger similarity between the real character and the literary character. Consequently, German case law developed a two-stage test: (a) is the literary character indeed identified by the close social circle; (b) is the degree of the violation of privacy neutralized through the ‘fictionalization’ of the character described in the plot. We therefore have a quasi- ‘parallelogram of force’ between the extent of the identification and the severity of the violation.

107.After examining the evidentiary matrix, the claim of Biller’s partner that she may be identified by reading the novel, was accepted. Conversely, her mother’s claim was rejected. Once it was ruled that it was indeed possible to identify Biller’s partner, the court examined the violation of the right itself. Due to the fact that the violation is at the core of the right to privacy, and as such cannot be remedied, the publication of the novel was prohibited.

108.From inspection of French case law, a similar approach can be identified (for a specification, see: The Law of Privacy and the Media above, on pages 155-159 and the authorities cited therein) (the article below: Privacy in Europe and the Common Law). The source of the protection of the right to privacy is embedded in Section 9 of the Code Civil [C. CIV.] (in its translation into English):

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

109.Throughout the years, the French courts have developed two main principles when dealing with a violation of privacy: (a) there is no hierarchy among the competing rights; each competing right has the same normative status; (b) all measures taken in the course of the balancing must be proportional.

110.Against the background of the said principles, it was held that freedom of expression will prevail where there is a public interest with respect to a certain event (‘fait d'actualité’) or when there is a significant contribution to public debate. Examination of the existence of the public interest in the framework of French law is similar to examination of the public interest in the case law of the European Court of Human Rights, as specified above. The right to privacy will prevail over freedom of expression only where the violation is in the ‘intimate dimension of private life’ (for further details and references, see: Helen Trouille, Private Life and Public Image: Privacy Legislation in France, 49 (1) I& C. L. Q. 199 (2000), and: Privacy in Europe and the Common Law above, on pages 155-159).

U.S. Law

111.Freedom of expression is established in the First Amendment to the Constitution, an amendment which has received immortal status in U.S. case law, to the point that it is hard to overstate its importance (see, for example, U.S. law on prior restraint: Near v. Minnesota, 283 U.S. 697 (1931)). In contrast, the right to privacy is not established in the Constitution. Indeed, since the above key article of Justices Warren and Brandeis (The Right to Privacy above) the status of the right to privacy has changed. However, it still remains constitutionally inferior to the freedom of expression.

112.U.S. law recognizes four tort causes of action for a violation of privacy (see Restatement (Second) of Torts, § 652 (1977)). From the causes of action, the one relevant to the case at bar is: ‘public disclosure of private facts’. The cause of action is defined thus (ibid, 652D):

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public”.

In order for a cause of action by virtue of ‘public disclosure of private facts’ to rise, the plaintiff is required to prove that: (1) the publication concerns matters pertaining to his private life; (2) the information that was published is highly offensive to a reasonable person; (3) the information that was published is not of legitimate public concern.

113.U.S. case law has focused on the definition of legitimate public concern. Its existence is dependent on proving a logical nexus between the private information that was exposed and the existence of a legitimate public concern (see, for example: Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)) (hereinafter: “re. Seabury”). This causal link was generously and broadly interpreted in case law (ibid).

114.In a series of judgments concerning the publication of autobiographical works, it was explicitly held that the existence of a ‘legitimate public concern’ prevails over a person’s right to privacy. Thus, for example, in the said re. Seabury, a suit was heard in connection with the exposure of information relating to the conduct of the plaintiff’s marital and domestic life. In the book, which was published by her former husband’s brother and focused on the relationship between the two brothers, details were included pertaining to her marital life. She, on her part, petitioned the court to prevent the publication and distribution of the book. However, her suit was dismissed with prejudice in view of the existence of a ‘logical nexus’ which falls under the constitutional protection:

“A review of the record in this action clearly shows the requisite logical nexus. An account of the author's close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection” (ibid, on page 397).

[The emphases have been added – N.S.].

115.In 2004, another lawsuit was heard concerning a violation of privacy, following the publication of an autobiographical work (Bonome v. Kaysen, 17 Mass. L. Rep. 695 (Mass. Super. Ct. 2004)). ‘Kaysen’, a well-known author, wrote a book entitled ‘The Camera My Mother Gave Me’, which describes her coping with severe pain in her genitals. The book documents the impact of her said medical condition on the intimate relations with her partner, ‘Bonome’. ‘Bonome’ is presented in the book in a negative light, and it is suggested that he attempted at one point to rape Kaysen, after she refused to have sexual relations with him. ‘Bonome’s’ claim against the publication and distribution of the book was dismissed with prejudice because there was a ‘legitimate public interest’ in the publication of ‘Kaysen’s’ autobiographical book. The courtaddressed the difficulty inherent in an autobiographical story containing the experiences of two separate partners. Although the autobiographical story of one is a violation of the other’s privacy, recognition of ‘Kaysen’s’ right to expose the private information establishes the logical nexus required between the information exposed and the public interest, in order to justify the publication thereof.

“As noted above, there is an additional interest in this case: Kaysen’s right to disclose her own intimate affairs. In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story – which inextricably involves Bonome in an intimate way. In this regard, several courts have held that where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Id.; Anonsen, 857 S.W.2d at 705-06; Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident”.

Interim Summary – Foreign Law

116.The case law in England, Germany, France and of the European Court of Human Rights leans towards granting extensive protection to the right to privacy versus the freedom of expression. Conversely, the U.S. system has adhered to granting a weak status to the right to privacy.

We will now examine our “homegrown” law on the issue of the relationship between the right to privacy and the freedom of expression.

The Normative Balance between the Rights

117.The right to privacy is a relative right. Freedom of expression is also not an absolute right. As such, it is necessary to balance them, one against the other, and against parallel rights and other interests. In the appeal at bar, we are witnessing a “frontal clash” between the right to privacy and the freedom of expression. What is the law when two constitutional rights clash with one another? The freedom of expression and the right to privacy are rights that are shaped as principles, and hence the clash between them is not an abstract clash, without any foundation in legislation. On the contrary, the parties’ claims are based on and supported by the legislation itself. Section 2 of the Protection of Privacy Law prescribes that the “publication of a matter pertaining to the private life of a person, including his sexual history, or his health, or what he does in private” is included in this violation. The law does not deem this determination to be an absolute matter, and instructs in Section 18(3) of the Protection of Privacy Law that the violation is permitted if there is a “public interest therein that justifies it under the circumstances, and provided that if the violation was by way of publication – the publication was not false”. We therefore have before us a question regarding the interpretation of the provision of the said Section 18(3). This balance is, naturally, an interpretational-constitutional balance. “It takes into consideration the in-principle importance of each one of the rights and its weight at the point-of-decision. It reflects the balance conducted within the bounds of proportionality in its narrow sense in the limitation clause” (see Barak, Proportionality in Law above, on pages 124-125).

Proportionality in the Narrow Sense – a Balance of Profit and Loss

118.The test of proportionality in the narrow sense examines the existence of “a proper correlation between the benefit that the policy produces and the damage that it causes” (see HCJ 3648/97 Stamka v. The Minister of the Interior PDI 53(2) 728, 782 (1999)). “It is necessary to examine whether a proper ratio exists between the public benefit derived from the act of legislation whose legality is considered and the damage to the constitutional right caused by such act of legislation” (see HCJ 2605/05 College of Law & Business v. The Minister of Finance, Paragraph 50 of the judgment of Chief Justice D. Beinisch (November 19, 2009)).

119.At the center of the proportionality test – in its narrow sense – is the following question: does the weight of the benefit derived from the realization of one right exceed the weight of the damage that will be caused to the other constitutional right. This weight is neither measurable nor quantifiable, but rather metaphorical weight derived, inter alia, “from political and economic ideologies, from the unique history of each and every country, from the structure of the political and governmental system” (see Proportionality in Law above, on page 431) from the specific legal tradition and various social values.

120.We are not concerned with comparing the weight of the two constitutional rights themselves, i.e. the weight of the right to privacy on the one hand and the weight of the freedom of expression on the other. The question put to our decision is different and limited in scope: is the weight of the marginal benefit derived as a result of realization of one right greater than the marginal damage that will be caused to the other right. As stated at this court in another case: “The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change? (HCJ 7052/03 Adalah The Legal Center for Arab Minority Rights in Israel v. The Minister of the Interior, PDI 61(2) 202, Paragraph 91 of the judgment of Chief Justice A. Barak (2006)).

121.The question at the center of the appeal at bar is not which is preferable, freedom of expression or the right to privacy; but whether the weight of the benefit that will grow from the prevention of publication of the book at bar – which violates the right to privacy – is greater than the weight of the damage that will be caused to the freedom of expression as a result of the prevention.

122.In determining the weight of the rights placed on the scales, three criteria must be addressed: the importance of the right; the probability of the violation or realization of the right; the magnitude of the violation or the realization. With respect to the importance of the right, it has already been ruled that despite the identical constitutional status of the members of the family of rights, the social objectives established and protected by such rights are not identical. “Not all constitutional rights are equal in importance, and consequently nor is their specific weight. The importance of a constitutional right and the importance of preventing its violation are determined according to the basic perceptions of society. They are impacted by the cultural history and the character of each and every society” (see Barak Proportionality in Law above, on page 443). There is another distinction between the core of the right and its margins. Protection of the core of the right is not the same as protection of its margins. Relevant in this regard is the opinion of Justice (former title) A. Barak in HCJ 5016/96 Horev v. The Minister of Transportation, PDI 51(4) 1, 49 (1997): “Within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered to political expression is superior to that allotted commercial expression. In the context of a certain aspect of a right (such as political speech), a violation at the core of the right is not the same as a violation in its margins”.

123.The “geographic location” of the specific case is determined in view of examination of the rationales underlying the manifestation of the right with which we are concerned. “Although all expressions are included in our system in the one ‘category’ of freedom of expression, not all types of expressions enjoy equal protection. The basic criterion for determining the extent of the protection for a certain expression is the social importance of the expression, and particularly its importance in realizing the objectives underlying the freedom of expression” (F.Cr.H 7383/08 Ungerfeld v. The State of Israel, Paragraph 28 of the judgment of Justice (former title) E. Rivlin (July 11, 2011); for example: protection of the freedom of commercial expression is not the same as protection of the freedom of artistic expression; their importance is different (the above re. Kidum; see and compare: HCJ 5432/03 Shin - The Israeli Movement for Equal Representation of Women v. The Council for Cable TV and Satellite Broadcasting, PDI 58(3) 65, 82 (2004); HCJ 4644/00 Jafora-Tabori Ltd. v. The Second Authority for Television & Radio, PDI 54(4) 178, 182 (2000)). Similarly, the protection of freedom of expression in relations between individuals is not the same as protection of freedom of expression in relations between an individual and the government: “The scope of the individual’s right to freedom of expression against the state is more extensive than the individual’s right to freedom of expression against another individual” (Barak Human Dignity, above on page 723).

124.Note, it is necessary to be careful of being ‘swept away’ in the ideological level. The value must not serve as a veil against an interest. Sometimes, the ideological robe, the shell, the external covering, is void of any moral content and is actually an interest-oriented (financial, personal or other) dispute. In situations such as these, there is nothing in the manifestation of the right with which we are concerned other than what it comprises. In this case, values which do not underlie the limited manifestation should not be read into it in an artificial and forced manner. These are the situations in which the right of one individual to personal wellbeing clashes with the right of another individual to personal wellbeing. In such a case, we should not wear ideological dress nor be blinded by an ideological argument. The value is, as a matter of fact, an interest, and the Talmudic question then arises “why do you think your blood is redder than anyone else’s” (Bavli, Pesachim 25, B). In these situations, there is no need to examine the “clash of civilizations” between the basic rights. The specific issue of division of the “personal wellbeing” between the litigants may be decided without requiring the in-principle decision.

125.The probability of the violation in the realization of the right, and the magnitude of the injury, also affects the relative weight of the rights on the constitutional scales. A highly probable violation is not the same as an improbable violation; the violation of a single right is not the same as a violation of many rights; a severe injury is not the same as a minor injury; the violation of a right in relations between individuals is not the same as a violation of a right in relations between an individual and the government.

Freedom of Speech and the Right to Privacy
 

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126. In the proper balance between the right to privacy and freedom of speech, it is first necessary to examine the degree of compatibility of the right at hand with the rationales it is based upon. Accordingly, first to be examined is the extent of the expression's contribution to public debate against the severity of the infringement on the right to privacy. An expression that greatly contributes to public debate will be given priority on the constitutional scale when weighed against a medium-level invasion of privacy; infringement on the core of privacy will be afforded protection from a medium-level infringement on freedom of speech. Indeed, an issue that is important in and of itself is the existence of a parallel infringement, similar in degree, such as a collision between an expression that greatly contributes to public debate and severely impinges on the core of privacy. I need not resolve this issue in this appeal. Such a decision will require a meticulous examination of the details of the case in question. The appropriate balance, to my mind, is this: preferring an infringement on the fringes of the right to privacy to the alternative of an infringement on the core of freedom of speech, and preferring an infringement on the fringes of freedom of speech to the alternative of an infringement on the core of the right to privacy.

 

127. An aid as to the degree of infringement on the right to privacy is to be found in the examination of numerous characteristics, including: (1) the "geographic" location of the infringement on the right, at its core or on its margins; (2) the nature of the relationship and the duties of trust between the parties; (3) the publicness or privacy of the figure; (4) the manner of publication; (5) the way in which the information came to the knowledge of the promulgator; (6) the conduct of the person with respect to invasions of his privacy prior to the publication; (7) the infringement, whether one-time or continuous. These criteria and others like them assist the presiding judge in deciding the severity of the injury.

 

128. In deciding the matter at hand, we have adopted an arrangement similar to the one practiced in the European legal systems. These legal systems are better suited to our legislative and constitutional structure. Let us keep in mind and give heed: turning to comparative law harbors both peril and blessing. The blessing lies in learning from the experience of others, as articulated by Justice Holmes "The life of the law has not been logic, it has been experience" (Anonymous [Holmes], Book Notices, 14, Am. L. Rev. 233, 234 (1880)). Comparative law allows us to enrich our world, learn and acquire knowledge.  However, alongside the blessing, there is also danger - "The root of faith is the root of rebellion" – learning in the "copy-paste" method is not appropriate. Each and every system has its unique characteristics: the values underpinning the system, a legislative and constitutional structure, national history, political ideologies and more. These unique elements affect the rulings of the court: "It is a burden that we bear to be careful not to be captivated by foreign legal systems, and primarily – to know to distinguish and choose between principles and doctrines and manners of thought and solution techniques – in which inspiration and wisdom can be found – to specific solutions and details that we will leave unnoticed. Indeed, comparative law expands the mind, it enriches with knowledge and wisdom, rescues us from provincialism, yet, at the same time, let us not forget that it is ours and our situs that we are dealing with, and let us beware of an imitation of assimilation and self-deprecation" (L.Cr.A. 8472/01 Maharshak vs. the State of Israel, PD 59(1)442, 474 (2004)); and in other words: "This comparative law – whether on the international level or the state level – holds great importance … however, every country has its own problems. Even if the in-principle considerations are similar, the balance between them reflects the uniqueness of every society and the characteristics of its legal arrangements … indeed, that is the power and these are the limits of comparative law. Its power lies in the expansion of the interpretational field of vision and horizon. Its power lies in the guidance of the interpreter as to the normative potential held by the legal system … its limits are in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it treats individuals and society. Indeed, comparative law is like an experienced friend. It is advisable to listen to his good advice, but it should not replace self-decision" (see H.C.J. 4128/02 Adam Teva V'Din – Israel Union for Environmental Defense vs. the Prime Minister of Israel, PD 58(3)503, 515-516 (2004)).

 

129. As aforesaid, the American legal system places supreme importance on freedom of speech. Only rarely will freedom of speech retreat therein before the right to privacy. This legal perception is not in line with the common standard in common law and continental law jurisdictions. It is based on the First Amendment to the Constitution, whose status and importance in American case law and culture is a well-known fact that requires no proof. American legal policy reflects, de facto, a nearly generic preference of freedom of speech over the right to privacy.

 

130. Should we learn from the European legal systems or follow in the footsteps of their American counterpart? As for myself, the answer is clear, and results from the remoteness of the American system from the Israeli constitutional tradition, from the legal framework and from our Hebrew legacy (see and compare: Eli Salzberger and Fania Oz-Salzberger, "The Tradition of Freedom of Speech in Israel", Quiet, Someone is Talking! The Legal Culture of Free Speech in Israel, 27 (Editor: Michael Birnhack, 2006)).

 

131. On the constitutional level – the status of the right to privacy as a basic right is established in Section 7 of Basic Law: Human Dignity and Liberty. Freedom of speech is absent from this law. Without delving into the thick of the question – of whether freedom of speech is included in the constitutional rights contained in the Basic Law – it is undisputed that "Freedom of speech is not within the rights explicitly enumerated in the Basic Law". Even those who include freedom of speech in the Basic Law believe that it is derived from the principle of human dignity and self-fulfillment (see: Interpretation in Law (Constitutional Interpretation) above, on pages 427-428). For details and references on this matter see also: Hillel Sommer "The Non-Enumerated Rights – of the Scope of the Constitutional Revolution" Mishpatim 28 257, 318-322 (5757)). The adoption of an outlook that grants freedom of speech "supreme status" over the right to privacy has no footing either in the constitutional text itself or in its reasoning. As may be recalled, when the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation were legislated, the Basic Law: Freedom of Speech and Organization Bill was also submitted, but failed to pass into a law in the Knesset (see Bills 5754 101).

 

132. On the theoretical level, it is possible to base a chronological approach of "[T]urn from evil and do good": preventing an invasion of privacy first and realizing artistic freedom later. This, in order to prevent creative work whose glory would come from trampling over others: "Man is like the tree of the field and speech is his fruit…and just as a bad fruit does not emerge from a good root and a good fruit does not emerge from a bad root, so is man's speech when he quarrels with his fellow man and insults him, this indicates that the root from which the insult comes is bad, and therefore the insult is within him, because the bad thing coming out of him is present in him, and where the trunk of the tree is flawed so is what will come out of it" (the MaHaRal, Netivot Olam [Paths of the World] B, Netiv HaShtika [Path of Silence], Chapter A). This issue deserves thought and contemplation, as to both theory and practice. As for me, I agree with the words of Justice I. Amit in Re. Captain R. (above, in paragraph 5 of the judgment): "Since the legislature has chosen, in the Basic Law:  Human Dignity and Liberty, to elevate the right to dignity and understate freedom of expression, I believe weight should be ascribed to that, in the sense that it may not be predetermined that in a collision between the two, the weight of the right of expression will prevail. I will note that in many judgments we find reliance on the judgment in Re. Avneri as part of the reasoning for a preconceived preference of freedom of speech, but one should bear in mind that this judgment was rendered prior to the enactment of Basic Law: Human Dignity and Liberty. In my mind, when the matter at hand pertains to a collision between freedom of speech and the right to a good name in a private lawsuit under the Defamation Prohibition Law – to be distinguished from a collision between freedom of speech and other values, such as the protection of public feelings – the balance should be carried out ad hoc, and one should beware of a formula that includes a "coefficient" or "power multiplier" that favors freedom of speech". These words also coincide with the aforementioned statements by Prof. Barak, whereby "The scope of the individual's right to freedom of speech against the State is more comprehensive than the individual's right to freedom of speech against another individual" (Barak, Human Dignity, above on page 723). Hence, in the balance between the freedom of speech of one individual and the privacy of another individual, freedom of speech is not to be given automatic precedence nor granted "super-status".

 

133. On the legislative level – the Protection of Privacy Law prescribes in Section 18(3) that "In any criminal or civil proceeding for infringement of privacy one of the following may constitute a good defense … there is public interest in the infringement which justified it under the circumstances of the case". The language of the law does not provide a sweeping protection to any infringement that has a public interest. This language expressly deviates from its American counterpart, which offers protection to any expression of public interest and spares any further examination of the magnitude of the infringement. This is not our way. We hold America in esteem, but we do not acquire all of the goods it offers. It is not for naught that the Israeli legislature rejected the proposal to omit the words "which justified it under the circumstances of the case" (see: Eli Halm Protection of Privacy Law 235 (2003)) (hereinafter: "Protection of Privacy Law"). Case law states: (C.A. Registrar of Databases vs. Ventura, PD 48(3)808 827 (1994)): "The question that needs to be examined in order to establish the protection of Section 18(3) of the law is not whether the public has an interest in the information, but rather whether there is a cause that justifies the invasion of a person's privacy in order to satisfy such public interest". This position has also been expressed in literature: "It is not sufficient that the invasion pertained to a public interest, but rather it has to be clear that there was a public interest in the invasion itself. That is to say, the fact that the subject-matter of the publication in general is of public interest will not lead to the application of the protection. The person advocating it will need to persuade that the public interest required him to invade another's privacy. The question of existence of a public interest cannot be examined by the court merely according to a general formula, and it will need to give heed to the circumstances of the matter adjudicated before it, in order to decide whether the invasion of privacy is justified under such circumstances" (Ze’ev Segal "The Right to Privacy versus the Right to Know", Iyunei Mishpat 9 175 193 (1983)). For additional information see also: Ruth Gavison "Prohibition on a Privacy Invading Publications – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204-214 (Editor: Ruth Gavison, 1982)).

 

134. Our Jewish Heritage – the right to privacy seeps through the slits of the comprehensive writings of Jewish law. Prohibitions on defamation, gossip, Herem De-Rabbeinu Gershom [Ban of our teacher Gershom], Heizek Re'iyah [damage by seeing], are only a few of the many appearances of the right to privacy in Hebrew law (see, for example: Nahum Rakover Protection of Privacy (2006); Itamar Warhaftig A Person's Privacy– the Right to Privacy in the Halacha (2009)). We cannot specify and enumerate its various appearances here, and we will therefore make do with a brief review of an issue that is close to the matter at hand – the "Bal Ye'amer" [not to be told] prohibition. This prohibition is defined in the Talmud (Bavli, Yoma D, B) as follows: "Whence do we know that if a man had said something to his neighbor the latter must not spread the news until he tells him ‘go and say it’? From the scriptural text: The Lord spoke to him out of the tent of meeting, le’emor [saying] ". This prohibition was interpreted in the answers of Rabbi Haim Palachi (Q&A Hakakei Lev, Part A, Yoreh De'ah, Title 49 (hereinafter: "Hakakei Lev Q&A"): "And it further appears to my humble mind to say that even if a person sends a letter to his friend, the friend who received the letter is forbidden to disclose the contents of the letter to others. Even if it concerns nothing unusual, contains no secret nor something indecent nor damage to the writer of the letter, there is a prohibition to disclose, as stated in the Gemara, [when] anything told to a friend is not to be told, until he says so. All the more so where disgrace or a secret are concerned, and damage arises when it is disclosed". Indeed, under Jewish law, a person is prohibited from revealing the secrets of his fellow man, not only on grounds of gossip, but also in order to prevent harm. As articulated by Rabbi Yonah Girondi: "And a person must conceal the secret his friend will confidentially reveal to him, even though revealing that secret is not a matter of gossip, because revealing the secret will cause harm to its owner and a reason to breach his intentions… because the person revealing the secret has only just left the path of modesty, and here he is violating the will of the owner of the secret" (She'arei Tshuvah Part C, Title 225). Therefore, revealing a secret is not only a betrayal of trust, but also a blatant invasion of the private space of the owner of the secret and a "breach of his intentions", i.e., - impingement on his liberty. Another opinion was expressed by Rabbi Haim Palachi, whereby the person who discloses the secret of another person, steals the other person's proprietary right to the secret he told him: "Veritably stealing his mind, which is at the hidden depths of his heart" (Q&A Hakakei Lev above, ibid).

 

135. The formal course for our reference to Jewish law, Section 1 of the Foundations of Law Act, 5740-1980, prescribes as follows: "Where the court, faced with a legal issue requiring determination, finds no answer thereto in the statues or case law or by analogy, it will determine in the light of the principles of freedom, justice, equity and peace of Israel's heritage”. Basic Law: Human Dignity and Liberty outlined, in Section 2, its purpose to establish "The values of the State of Israel as a Jewish and democratic state". It appears unnecessary to discuss the level to which Jewish law is obligatory in the Israeli legal system. It is our privilege that the tradition of Israeli law does not begin in 5708, upon the establishment of the State of Israel, but is rather rooted in a tradition of thousands of years. A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law and holds the protection of a person's privacy in high regard. As articulated by Chief Justice A. Barak: "Reference to the fundamental values of Jewish law is not reference to comparative law. It is a reference to the justice of Israel. It is a mandatory reference" (Aharon Barak A Judge in a Democratic Society 290 (2004)).

 

136. The proper position in a collision between the rights in question – I believe it is the one warranted by reality – is the examination of every case on its merits, without an in-principle ruling as to the precedence of one right over the other. A severe infringement of freedom of speech would outweigh a light and a medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and a medium infringement of freedom of speech. This rule must be put into practice whenever the rights collide with one another. It is not for us to complete the task, but neither are we free to avoid it.

From the General to the Particular – the Right to Privacy and Freedom of Speech

137. We must take several steps in order to analyze the novel at the center of the appeal before us, determine the severity of the infringement on rights, the damage of the collision between them and the balance required under the circumstances of the matter: firstly, we will discuss the degree of fictionalization of the protagonist and the similarity to reality; secondly, we will examine whether the invasion of the Respondent's privacy is at the core of the right to privacy or at its margins, and discuss the degree of the injury; thirdly, we will examine the severity of the possible violation of freedom of speech.

Degree of Fictionalization

138. Two opinions by senior scholars in the field of global and Hebrew literature – Prof. Ariel Hirschfeld and Prof. Hannan Hever – have been placed before the District Court. In the opinions, the scholars impressively explained why the novel in question belongs to the category of fiction literature and is not classified under the autobiographic-historic category. Whilst "The historian claims that what he writes really happened", the novelist claims "that what he wrote did not happen but rather could have happened". In short, "The historian has a truth claim. The novelist has no truth claim" (see Hirschfeld, in Sections 7 and 8). Hirschfeld continues to examine in detail the creative work of the Appellant and proves, based on its internal and external attributes, the elements of pattern and style thereof, that this text belongs to the literary-fictional type. His fellow scholar, Prof. Hannan Hever, reaches a similar conclusion. According to his position "The distinction between an autobiographic novel and a fictional novel does not depend upon the closeness or remoteness of its plot from the reality of the novelist's life. It is an objective test that is derived from the interpretation of the reasonable reader to the gamut of indications in the novel". After "considering the cumulative weight of the indications found in the novel" Hever reached the conclusion that these indicate "unequivocally that the book deals with the construction of fiction rather than actual reality and that no 'autobiographical contract' was reached between the writer and his readers". Prof. Hever even went as far as to say that "this conclusion refutes any claim based on this argument" (see Hever, in Section 3). A similar conclusion was expressed in the affidavit of the writer Mira Magen, who accompanied the Appellant in the "labor pains" of the book.

 

139. The coming together of different worlds of content harbors both a blessing and a peril. The blessing – in mutual enrichment, in learning from the different and the similar; and the peril – the blurring of the lines that separate the disciplines. Different purposes lie at the basis of law and literature. The roles of law – the resolution of disputes, the imposition of order and the administration of justice – are not in keeping with the objectives of literature, which are the creation of art in and of itself and the creation of meaning for man, as Prof. Hirschfeld says. At times, law and literature go hand in hand, and then law girds up its loins and fights in the defense of literature, but at times – it fulminates against it. The definition of a creative work as fictional, in one area – literature – does not compel a similar definition in another area – law. "Every State in its own script and every people in its own language". The basic assumptions that underlie the different disciplines sometimes lead to opposite definitions and conclusions. That is also the case in the matter at hand.

 

140. Literary fiction expresses an "unwritten contract" between the reasonable reader and the writer. One of the terms of the contract is the lack of connection between the creative work and reality. This is not the case where legal fiction is concerned. The law, contrary to the literary-professional position expressed by the expert professors in the opinions, does not render its judgment in a binary world in which the work is categorized into one compartment and not the other. The law examines the degree to which the work is fictional. At times, the work slightly resembles events that occurred in real life; at times the work is based on such events, but without a full compatibility; and at times, such events are reflected in the actual work word for word. The examination of the degree of fiction is not a theoretical matter. It will be carried out according to the extent of the reader's acquaintance with the events that appear in the work. At times, only the soul mate of the real-life character would be able to recognize the events described through the lines. However, at times, close acquaintances of the character would also be able to recognize it. And sometimes its distant acquaintances, and sometimes the nameless amorphous reasonable reader would be able to identify it. Adopting a legal policy that is based on the literary worldview of the scholars Hirschfeld and Hever is inappropriate. Such a policy would allow those who so seek to publicize things that amount to invasion of privacy and defamation under a literary-fictional guise. The reasonable reader would view the literary manifestation and would be able to ignore the real-world one. However, the acquaintances and cherishers of the real figure would easily recognize it, process the information in their consciousness, and arrive at real-life conclusions; not fictional ones. This would open the door to the nullification of the laws of privacy protection and defamation prohibition.

 

141. Examining the degree of fiction of the creative work before us indicates that the character of the female protagonist includes numerous and unique identifying details, which enable the recognition of the Respondent. Among these, we can enumerate the description of her physical appearance, details of her age, unique occupation, her place of studies, her workplace and her place of residence, details of her special creative work, identifying details of the Appellant, her partner, and events that occurred in reality in the presence of third parties. In its judgment, the District Court correctly articulated these details (ibid, paragraph 40):

 

"a.        The female-protagonist is described in the book when meeting the male-protagonist [as being[ at the age of the Plaintiff at that time, and as someone who studies in the same institution and in the same department as the Plaintiff had, and works at the same place and in the same position as the Plaintiff had. The Plaintiff resided with her partner at the time relevant to the claim in the area described in the book, her partner’s also lived in the immediate area of the location described in the book. The female-protagonist has the same number of siblings as the Plaintiff and her parents are of the same ethnic origins as the Plaintiff's parents.

 

b.         The physical appearance of the female-protagonist as described in the book bears a great resemblance to the physical appearance of the Plaintiff, including her hair, the color of her eyes and the presence of tattoos in locations similar to the ones specified in the book. The book describes many additional details with respect to the female-protagonist's appearance, her hobbies and her past; however, these are less pronounced for the identification of the Plaintiff with the female-protagonist.

 

c.         The book describes, as aforesaid, the Plaintiff's graduation project. The book includes a conceptual description of the project and describes all of the stages of preparation of the project as well as its visual appearance. It is a unique project that had been publicly presented as the Plaintiff's graduation project in the presence of her teachers and schoolmates and consequently also identifies the Plaintiff. The vast volume apportioned in the book to the work and the stages of preparation thereof also points the finger, in and of itself, at the Plaintiff.

 

d.         The descriptions of the male-protagonist in the book in a manner which identifies him as the Defendant also contribute to the identification of the Plaintiff, as the Defendant's partner at that time, as the female-protagonist. A fact to be added thereto is that the book was written by the Plaintiff [sic; should be "Defendant"] under his own name, in the first person, and this too contributes to the identification of the Plaintiff by her immediate environment, which knew her to be the Defendant's partner.

 

e.         The book includes events that undisputedly occurred in reality, in the presence of third parties, and which enable the identification of the Plaintiff as the literary character in the eyes of the persons who were present in the events or had heard about them from the parties".

 

142. These details – factual findings determined by the District Court, and there is no cause to intervene therein or change them – tip the scale and mandate the conclusion that the Respondent can be recognized as the female-protagonist of the Appellant's book. On the whole, according to the nature of the details and their accumulation, there is basis for recognition by the reasonable distant acquaintance, a colleague, a classmate and a potential student. To this we must add that it is the course for juicy details such as these to reach broader circles. A description of physical appearance in a novel is not generally etched in the mind of the reader, and it is temporary and passing. On the other hand, a description of the character's sexual habits and details of her doings in the bedroom fulfill voyeuristic urges and serve as juicy raw material, tradable currency.

 

143. A side note on the opinions of the experts, Prof. Hirschfeld and Prof. Hever: A light and superficial perusal of the theoretical literature that addresses fiction gives rise to distinctions which were not mentioned in the opinions at all, and mainly, the existence of midpoint intermediate definitions between fiction and documentary, such as the Roman à clef genre. For some reason, the experts chose not to present the court with the theoretical definitions and sub-definitions for the term "fiction", which are extensively discussed in research literature. That is a problem with that. As a result, Prof. Hever decisively determined in his opinion that his own conclusion "refutes any claim based on this argument". There is no room for a conclusion such as this in an expert opinion. The expert is required to opine in the field of his expertise, not to overstep the jurisdiction of the court.

The Degree of Invasion of Privacy

144. As aforesaid, with respect to the invasion of privacy, we make a distinction between an impingement on the core of privacy and an impingement on the margins thereof. The core of the right – intimate details of a person's life – "the inner circle of life". The margins of the right – details that belong to the external space of a person's life – "the external circle of life". In this appeal, we are not required to discuss the "twilight zone" that lies between the margins of the right and its core. We are concerned here with a clear infringement on the core of the right. The book includes "a detailed description of matters pertaining to the private life of the Plaintiff… a detailed description of the Plaintiff's relationship with the Defendant, including events, conversations and descriptions that are unmistakably intimate. The book includes a description of the Plaintiff's relationship with her former partner until their breakup, with the parents of her partner and with her own parents, including statements made by the Plaintiff with respect to her parents in personal conversations she had with the Defendant. The Plaintiff rightly claims that the book comprehensively, and without any camouflage, describes her most intimate relationships, exposes her thoughts, feelings, desires, secrets and sexual life. All in such a manner that the Plaintiff's life, down to the most intimate details, is spread out as an open book before the readers" (paragraph 49 of the judgment of the District Court). Descriptions of this type constitute a severe impingement on the very core of the right to privacy.

Protection of the Trust Relations between Couples

145. "Acquire a friend for yourself". This sound advice, which is based on nature and human need, is given to us by Rabbi Joshua Ben Perachia (Mishna, Avot, 1, 6). "And how will one acquire a friend? This teaches that a person should acquire a friend with whom to eat… and read … and reveal all of his secrets, the secrets of the Torah and the secrets of worldly things". (Avot de Rabbi Natan 8, 3). A person needs a friend; man and woman need one another. "Either friendship or death" (Bavli, Bava Batra 16, 2). The relationship between a man and his friend and between a man and his wife serves as a haven for a person, a protected and safe place. The outside world, it is strange and alienated. A man's home is his castle. In the public domain, a person is constantly under a scrutinizing and inspecting eye. In private, in the privacy of his own home, together with a friend or a spouse, a person has a piece of land, physical relaxation and peace of mind. This relationship is characterized by a high level of trust between the parties. At its peak, the friends and the spouses accept each other, as they are, unreservedly. Relationships such as these encourage a person to open his heart and share his secrets with another. Unlike the scale armor that a person wears when going out into the outside alienated world, relationships like these are characterized by removal of the outer layer and exposure of the inner world. In the course thereof, the spouse is stripped bare, physically and spiritually, before the other spouse. A worthy legal regime grants protection to such a relationship. Secrets and details revealed in the framework of interpersonal relationships, in which there is a high expectation for trust relations, are worthy of legal protection. Words such as these were stated by the English Court:

 

"There could be hardly be [sic] anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed". (Argyll v. Argyll [1967] Ch. 302, 322).

 

For additional information see also: Nigel Lowe & Gillian Douglas, Bromley's Family Law 113-118 (2007).

 

146. The Appellant and the Respondent had a longtime romantic relationship that lasted approximately five years. In the course of their acquaintance, the Respondent separated from her partner, and the Appellant divorced his wife. Clearly such a stable and lengthy relationship gives rise to an enhanced duty of loyalty. In exposing intimate details, which one of the parties learned about during the couple’s relationship, there is severe harm to the rationale at the base of the protection of privacy and to the inclination to safeguard and protect the existence of interpersonal relationships. Naturally, the context in which the details were disclosed, and the ones for which the question of exposure is on the table, also adds to the depth and to the weight of the invasion of privacy in the case at bar.

 

147. Interim Conclusion: After examining the degree of fiction in the creative work and the degree of infringement on the right to privacy, we have learned that there is little fiction and great harm. This is a creative work, a novel, in which the reasonable distant acquaintance may recognize the Respondent. It is a grave infringement on the core of the right to privacy, the trust relationship between a couple. The inevitable result is that publishing the novel will cause a severe and intense invasion of the Respondent's privacy; the identification and the injury join together to create heavy weight on the side of privacy on the constitutional scale.

Freedom of Speech

148. The extent of the violation of freedom of speech will be examined according to its underlying rationales. We will distinguish between rationales that reflect extensive social values such as: human dignity, the exposure of truth, and the importance of freedom of speech in a democratic regime. Realizing these values through the examined expression elevates the protection of the expression to a high level and the freedom to express it. On the other hand, insofar as the expression primarily stands on the basis of personal wellbeing, the value will be reduced to interest level, simultaneously reducing the degree of protection of the freedom to express it. This is not a binary choice. Many expressions contain several elements that stem from different rationales. The court is entrusted with the task of deciding the dose of the rationales fulfilled by the expression.

 

149. The novel authored by the Appellant embodies artistic freedom. This specific manifestation does not merit as severe a protection as its fellow political expression (see and compare: Barak, Human Dignity, above on page 731), but nor does it descend to the bottom tier, like its commercial counterpart. As such, it fulfills different values that underpin freedom of speech – the exposure of truth, and the importance of freedom of speech in a democratic regime – but it does not involve a full realization of these rationales, which are wholly realized in political expressions. Artistic freedom is also known for its self-serving personal aspect. The creator wishes to glorify his name and make himself renowned. The weighting of these rationales indicates that the expression before us realizes freedom of speech to a medium degree. Ideal and interest are intermingled therein. The violation of freedom of speech in the case at bar is also not of the severe type, as it does not originate in censorship on the part of the governing authorities, but rather in the Respondent's legal action as a person concerned with protecting her right to privacy. The balance between a serious and severe infringement of the right to privacy against a medium violation of freedom of speech tends toward the protection of privacy.

Concern of Literary Work being Shelved

150. According to the Appellant, denial of the appeal "might lead to absurd results" and to the shelving of important literary work based on "actual" events. Counsel for the Appellant quotes the CEO of the publisher, who protested against such legal policy in his testimony at the District Court: "In fact, what will be asked of me, is not to prove that things happened, but rather to prove that things never happened … I will have to prove that the fictional protagonist did not have such a neighbor … how can you prove what did not happen … any work whatsoever is impossible if we come to that place, which I find preposterous … it is the absolute paralyzing of original creative work" (page 110 of the court transcript). The Appellant also notes a considerable list of important literary works that would have been shelved and never published, according to the legal policy set by the District Court.

 

151. The Appellant claims that "The judgment may have… destructive implications on an entire branch of literary writing. Its practical implication is that writers writing an autobiography or an autobiographic novel are prohibited from relating a relationship with another person and sharing with the public, through the work, experiences that they themselves had had in that relationship". In conclusion, the Appellant calls upon the court to stop and ask itself "Would I be willing to apply the exact same criteria to one of the masterpieces of Hebrew literature? Were I to ignore the identity of the Appellant and visualize Amos Oz, or David Grossman, or Meir Shalev before me – would I then too arrive at the same outcome?"

 

152. I have done as the Appellant directed. I turned to ask myself, would I indeed be willing to adopt similar criteria in other situations? But I will first say a few words. The utilitarian argument regarding the increase of the aggregate wellbeing of society as a result of the publication of literary works has great charm. It is supposedly simple: in situations where the right of one private individual collides with the right of another person, which has a high aggregate benefit, the second right should be preferred.

 

153. However, this argument bears a twofold flaw: firstly, the protection of human dignity also rises from utilitarianism itself, since a society that throws human dignity down the gutter significantly reduces the aggregate wellbeing. This principle was not overlooked by the father of the utilitarian doctrine, John Stuart Mill, who, in his book "On Liberty", determined that aggregate benefit and utility also rise from a regime that protects human rights. This utility should be taken into account when examining the aggregate wellbeing regime in situations of human rights' violation. A similar position is brought in Midrashei Chazal [the writings of our sages may their memory be blessed] that addressed the construction of the biblical Tower of Babel: "Rabbi Pinchas says that there were no stones there to build the city and the tower, so what did they do? They fashioned bricks and burned them as artisans of earthenware until they built it seven miles high … and if a man fell down and died they paid him no heed and if a brick fell down they sat and wept and said when would there be another to replace it" (Pirkei de Rabbi Eliezer(Higger), Chapter 24). The preference of brick over man – this is what stands at the heart of Chazal's criticism of the Babylonian tower.

 

154. Secondly, there are situations wherein we decide that the protection of human dignity is more important than the accomplishment of other social values. This is the case, for example, in legal policy on experiments in humans. The benefit held in this type of experiment and the aggregate wellbeing expected therefrom could have a crucial effect on the future of the whole of mankind. Despite this, the law has chosen to apply a restraining legal policy that takes a firm hand against these, in order not to violate human dignity. A similar principle is reflected in the words of Chazal who determined that "So great is human dignity that it overrides the negative commandments of the Torah" (Bavli, Berachot 19, 2).

 

155. Clearly, one must not underestimate the importance of the artistic freedom in general, and the autobiographical one in particular. It should be granted an honorary place in the Israeli realm of rights. As a rule, the court will not prevent the publication of an autobiographic novel. Prior restraint is a highly rare act. However, it is possible that as a result of the legal policy outlined in the judgment of the District Court and now adopted in our ruling in this court, mankind as a whole will suffer the loss of several literary works. This argument, as aforesaid, does not deny our ruling. There are values that merit even the loss of several "good books". Man before book. Books are meant to serve mankind, not the other way around, in the sense of "a maidservant who inherits her mistress" (Mishlei, Book of Proverbs 30, 3). It appears that the Appellant's words of "cultural ruin" and of his own work which "went up in flames" were overstated, to the point that he has forgotten which is the cause and which is the effect.

Copyright and Defamation

156. The District Court found, as mentioned, that there was no need to rule on the Respondent's arguments with respect to Appellant's infringement on her copyright to her letters – which he had used in his book – because there was anyway no justification to award additional monetary compensation beyond the compensation for invasion of privacy. The Appellant did not address this cause of action in his summations. There is therefore no need to address this issue in the framework of the appeal at bar. Likewise with respect to the Appellant's claim that the publication of his book does not constitute publication of defamation against the Respondent. According to him, the District Court erred in finding that "The Plaintiff (the literary character) is described in the book as a woman who had an intimate relationship with a married man and did so in parallel to her relationship with her then partner. She is further described as someone who is willing to trample over anything that stands in her way to her goals, and as someone who uses people 'as if they were objects'" (paragraph 68 of the judgment). The Respondent, on her part, claims that this ruling of the District Court should also remain unchanged. In my opinion, this matter too does not require a ruling in the framework of the appeal at bar, as it has no bearing on the remedies.

Consent of the Respondent

157. Section 1 of the Protection of Privacy Law prescribes that "A person will not invade the privacy of another without his consent". The Appellant claims that once the Respondent expressed her consent to the writing of the book, its publication is no longer a prohibited invasion of privacy. The District Court discussed this argument at length and its conclusion was resolute: "It should be determined that not only did the Plaintiff not give her informed consent to the invasion of her privacy, but the Plaintiff also made clear to the Defendant before the publication that she forbids him from including in the book any details that may lead to her identification" (paragraph 65 of the judgment). I accept the ruling of the District Court, based on the materials brought before it. It is a ruling on a matter of fact. As known, the court of appeals is not in the habit of intervening in matters of this type, and there is no good reason to deviate from the rule. I will, however, briefly address the legal aspect of consent to invasion of privacy.

 

158. It is inarguable that the Respondent expressed before the Appellant her objection to the publication of the book several times. According to the Appellant's claim, this objection was preceded by consent. What is the nature of this consent and can one withdraw therefrom?

 

159. Various scholars have expressed their position that "Consent may be compared to a contract, and the principles of contract law will apply to consent" (Protection of Privacy Law above, on page 45); and that "There is no impediment to the application of the principles of contract law to consent" (Private Space, page 100). Despite the noticeable similarity, scholars have pointed to the difficulty in the "blind application" of contract law: "Although it appears that the principles of contract law apply to the element of 'consent', the protection of privacy laws give rise to dilemmas that are not always resolvable through contract law. Thus, for example, it may be that a person who gave consent will withdraw the consent he gave: the basic principle in contract law mandates enforcement of the obligation. However, in our opinion, this remedy is not necessarily suitable in the event of withdrawal of consent to relinquish the right to privacy. The personal nature of the consent to relinquish privacy and the elevation of the right to privacy to the rank of a basic right, require the interpreter to use additional tools to examine 'the consent', in addition to contract law. When a person withdraws his consent to relinquish his privacy, one should not, in our opinion, impose the ordinary law of enforcement on him and publish information that invades his privacy in reliance on previous consent. A person should be allowed, primarily in circumstances that concern intimate information, the ability to withdraw his waiver of his right to privacy against monetary compensation if the party who relied on the waiver of privacy has been damaged as a result" (see Protection of Privacy Law above, 46; for similar positions see: Private Space above, page 100-104); The Law of Privacy and the Media above, on pages 537-538).

 

160. It appears to me that a person's consent to invasion of his privacy is not the final word. The constitutional status of the right, the hard personal nature of invasion of privacy, may place the remedies for the withdrawal of consent in a position that differs from the one under contract law. Enforcement may possibly be unjustified in circumstances of severe invasion of privacy, compared with monetary compensation that may be justifiably awarded due to the withdrawal of consent, if it caused damage. According to a "parallelogram of force" between the severity of the invasion of privacy and the validity of the consent, the milder the invasion the greater the chances of receiving an enforcement remedy; the more grave the invasion, the more the balance will tilt towards avoiding enforcement, while granting the possibility of a compensatory remedy. In the case at bar, as aforesaid, the District Court rightly ruled that there had been no consent. There had been the explicit objection of the Respondent to the inclusion of a detail that could bring to her identification.

Conclusion

161. The Appellant's freedom of speech "collides" with the Respondent's right to privacy. His artistic freedom, as reflected in the book he has written, harms the Respondent's good name. The autobiographical work has many notable virtues. However, the book in question is actually a documentary book disguised as a work of fiction – as the District Court has ruled – and its invasion of the Respondent's privacy is grave and severe. We are concerned here with two constitutional rights – freedom of speech and the right to privacy - and, in principle, neither takes precedence over the other. In our ruling, we have examined whether the weight of the benefit that will arise from the fulfillment of one right exceeds the weight of the damage incurred by the other right. Our in-principle conclusion is that on the constitutional scale, freedom of speech will prevail in a situation of mild and medium infringement on the right to privacy against a severe violation of freedom of speech; the right to privacy will prevail when the violation of freedom of speech is mild or medium and faced with an intense impingement on the core of privacy. We implemented the principle, according to the circumstances of the matter and the book in question, and we have found that there is little fiction and great harm. A grave and severe invasion of the Respondent's privacy, whereas, on the other hand, there is a medium violation of the Appellant's freedom of speech. The identification of the Respondent in the Appellant's book as the female-protagonist, together with a detailed description of her inner life circle, including matters that are manifestly intimate, outweigh, in their aggregated weight, the infringement on the Appellant's freedom of speech, in which ideal and self-interest are intermingled.

 

162. Were the Appellant seeking to hold a photography exhibition in which he displayed the Respondent with him in the nude, it appears that an injunction would have been issued, in order for him not to do so. All the more so the book, where he portrayed the Respondent's body in her own bedroom and also exposed the depths of her soul and her innermost secrets. It is thus just that the District Court issued a permanent injunction prohibiting the publication of the book.

 

163. Therefore, I propose to my fellow-justices to deny the appeal and leave the judgment of the District Court standing. I further propose that the Appellant be charged with the payment of trial costs and legal fees to the Respondent in the amount of ILS 75,000.

 

 

 

Justice

 

Deputy Chief Justice M. Naor:

1. My fellow-justice, Justice Sohlberg, has laid out an extensive review. It appears to emerge from his review that were the case before us heard in the courts of the United States – the result would have been different. The result of disqualifying a book that has been written is a difficult result and ought to be kept for exceptional cases. I am afraid that the case at hand is such a case.

 

2. It appears that in his book, more than the Appellant sought to write about the female-protagonist, he actually sought to write of the male-protagonist, the experience of a man who leaves his home mentally and physically in a gradual process, first for short-lived affairs, and eventually for a relationship with the female-protagonist. The relationship with the female protagonist began when the male-protagonist was married and the relationship continued after the male-protagonist left his home. The work describes the difficulties in the relationship of the male-protagonist with his longtime wife, and with his children, difficulties that eventually also harm his relationship with the female-protagonist, for whom he cannot make room for in his world. It is not the female-protagonist who is at the center of the plot, although the female-protagonist and other women (to a lesser degree) hold an important place in the plot. The plot is centered on the man who leaves his home.

 

However, in his writing, at the center of which is the male-protagonist, the author has breached permitted boundaries and severely invaded the Respondent's privacy. Things could have been written differently to begin with. My fellow-justice rightly noted, following the findings of the District Court, that things were written in such a manner so that even a distant person who knows the Respondent would recognize that it was about her. The standard sentence appearing on the internal side of the book cover, that the plot of the book and the characters mentioned therein are all the product of the author's imagination and that any connection to living persons or characters is purely coincidental – does not reflect the situation as it truly is. This being the case – there was no room for various descriptions, which it would not be right to specify, that run as a common thread throughout the entire book. There was also no room to share with the reader the heroine's secret thoughts and her sex life. The Appellant wrote his book as he did while ignoring that grave invasion. We cannot illustrate the severity of the invasion with the details contained in the book, because such details would also constitute an invasion of privacy. It is sufficient for me to note that my words with respect to the serious invasion have been written after reading the book in full.

 

Although, as aforesaid, it could have been done differently to begin with. In the hearing we suggested allowing non-trivial changes in the book, but this was not achieved. We cannot assume the role of "chief editor" and the role of the one directing changes in a literary novel in a judgment. According to my impression, things could have been written differently to begin with, without significantly compromising artistic freedom, yet the Appellant wrote what he did in a manner that completely ignores the harm to the Respondent.

 

3. Despite the considerable difficulty I feel as to the need to censor a literary work – at the end of the day, I join my opinion with the opinion of my fellow-justice, Judge Sohlberg, and all while emphasizing that disqualifying a literary work should be done in rare cases. However, the case before us is, as aforesaid, such a case.

 

Deputy Chief Justice

 

Justice S. Joubran:

1. I concur with the thorough and comprehensive judgment of my fellow-justice, Justice Sohlberg. I will briefly note the reasons specified by my fellow-justice that have led me to this conclusion.

 

2. Firstly, the case before us gives rise to a complex question pertaining to the correct balance between the Appellant's freedom of speech and the Respondent's right to privacy in the framework of Section 18(3) of the Protection of Privacy Law, 5741-1981 (the "Protection of Privacy Law"). The section prescribes a balance between the right to privacy and the freedom of speech and public's right to know. In this context, I agree with the approach of my fellow-justice, whereby it is the court's role to pour substance into this basic formula, and in the case at bar – interpret it in view of constitutional principles (paragraphs 53, 68 of his opinion; L.C.A. 6902/06 Zadik vs. Ha'aretz Newspaper Publishing, paragraph 10 (August 13, 2008)).

 

3. In my opinion, in the balance between two constitutional rights of equal status, the highroad is to take a conciliating approach with the aim of allowing both rights to coexist by means of a proportionate impingement on one at the expense of the other (see and compare: H.C.J. 2481/93 Dayan vs. Chief of the Jerusalem District, 48(2)456, 474-475 (1994); A.P.A. 398/07 The Movement for Freedom of Information vs. the Tax Authority, paragraph 53 (September 23, 2008) ; A.P.A. 9341/05 The Movement for Freedom of Information vs. the Government Companies Authority, paragraph 31 (May 19, 2009); Ruth Gavison "Prohibition on a Privacy-Invading Publication – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204, 219 (1982)). In this spirit, we have tried to conciliate between the parties in the hearing we held on the appeal, and to reduce the invasion of the Respondent's privacy and allow the publication of the book. However, most regrettably, this attempt was unsuccessful. Only then, in the absence of the option to reconcile the rights, the path of a binary decision should be taken and one right preferred over the other (see: H.C.J. 1435/03 Jane Doe vs. the Disciplinary Court for State Workers Haifa, PD 58(1)529, 537-539 (2003)).

 

4. Secondly, the scope of the protection of speech is determined according to the rationales it fulfills. This court has held that the three rationales underpinning freedom of speech are the exposure of truth, individual self-fulfillment and the reinforcement of democracy (H.C.J. 399/85 Kahana vs. the Israel Broadcasting Authority, PD 41(3)255, paragraphs 14-16 of the judgment of Justice (his former title) A. Barak (1987) (hereinafter: "Re Kahana"); Ilana Dayan-Orbach "The Democratic Model of Freedom of Speech" Iyunei Mishpat 20 377 Chapter A (1996)).

 

5. In my opinion, although it is undisputed that the Appellant's book is protected under free speech, most of its underlying rationales (with an emphasis on the exposure of truth, as will be specified here) do not apply to the work, certainly not fully. In this context, I will note that a considerable part of the Appellant's claims, both before us and before the District Court, was based on the argument that this is a work of fiction, and therefore cannot in fact invade the privacy of the Respondent. In view of this, I accept the position of my fellow-justice that the rationale of "exposure of truth" does not fully apply to the book (paragraph 149 to his opinion). It is noted that it is written in the beginning of the book, black upon white:

 

"The plot of the book, the characters mentioned therein and their names are all the product of the author's imagination. Any connection between the plot of the book and events that occurred in real life, as well as between the characters mentioned herein and their names and characters or names of persons, living or dead, is purely coincidental".

 

6. In this state of affairs, I find it difficult to determine that the book helps "To ensure freedom of speech in order to enable various and diverse ideas and views to compete with one another. From this competition – and not from a governmental dictation of a one and only 'truth' – will truth float and rise up, as, in the end, the truth will prevail in the battle of ideas" (Re Kahana, in paragraph 14). In view of this, I believe that the scope of protection to be granted to the book is not broad whilst on the other side stands the Respondent's right to privacy in its clearest sense, and the latter should prevail.

 

7. On these grounds, I concur with the judgment of Justice N. Sohlberg.

 

 

Justice

 

Ruled as aforesaid in the judgment of Justice N. Sohlberg.

Rendered today, Nissan 24, 5774 (April 24, 2014).

Permitted for release today, Iyar 22, 5774 (May 22, 2014).

 

 

The judgment was sent in its entirety to the parties' counsels, and, at our request, they suggested light changes and omissions in order to prevent a situation where the contents of the judgment reveal details whose publication would undermine the injunction prohibiting the publication of the book. The main omissions and changes were incorporated into the language of the aforesaid judgment. We therefore allow the release of the judgment in its reduced format herein, while the prohibition on exposure of the names of the litigants and identifying details about them, as well as the judgment in its full format, still standing.

 

Deputy Chief Justice                               Justice                                            Justice

 

__________________

The copy is subject to editing and wording changes. Heb 11089540_009.doc

Information Center, Tel. 077-2703333; website, www.court.gov.il

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

Before Agranat P., Sussman J., Landau J., Berinson J. and Manny J.

 

 

Editor's synopsis -

            Section 4 of Basic Law: The Knesset, requires that elections to the Knesset shall be "general, nationwide, direct, equal, secret and proportional". Sections 4 and 46 of this Law require that any amendment to section 4 be approved by an absolute majority of the Knesset. In 1969, the Knesset passed a Law providing public financing of the election campaign for the seventh Knesset, scheduled to be held in 1970. According to the provisions of this Law, which was not passed by an absolute majority, such funding is granted solely to party factions which are represented in the outgoing Knesset.

           

            The Petitioners contend that the funding provisions of the new Law are void for two reasons. The Law was initiated by several members of the Knesset as a private bill, whereas legislation that imposes a financial burden on the Treasury must be initiated by the government. By providing public financing only for existing party groups, the Law infringes upon the requirement in section 4 of the Basic Law that elections be "equal" and is therefore invalid since it was not passed by the absolute majority required under section 46 of the Basic Law, i.e., a majority of the members of the Knesset, at each stage of the legisation.

           

            The court issued an order nisi, calling upon the Minister of Finance and the Government Comptroller, to show reason why an order should not be issued directing the Minister to refrain from making any expenditure under the election financing Law and directing the Comptroller to refrain from performing any act which the said Law authorises or requires him to perform. The Respondents appeared in opposition to the order nisi.

               

                The court ruled that the order nisi be made absolute, holding:

           

1.      Whatever may be the law in England, there is no rule in Israeli law that forbids members of the Knesset from initiating a private bill that imposes a financial burden on the Treasury.

           

2.      All of the other terms in section 4 of the Basic Law, "general, nationwide, direct, proportional", relate both to the right to vote and to the right to be elected. There is no reason not to give the word "equal" a similarly broad meaning.

 

3.      The absolute denial of any funding to new party groups is a substantial violation of the principal of equality established in section 4 of the Basic Law, and therefore requires the support of an absolute majority of the Knesset at each stage of the legislation.

 

Note - The Knesset thereafter amended the Law to include financing for new party groups. The amendment was passed by an absolute majority of the Knesset members, although it is possible that such a majority was not required since, arguably, the new Law, as amended, satisfied the requirement of equality. At the same time, the Knesset enacted a second Law, also by absolute majority, which retroactively confirmed the validity of all legislation concerning election procedures that had been enacted previously. The effect of the Confirmation Law was to prevent judicial review of all such legislation previously enacted, even if it violated one of the entrenched provisions.

 

            For a later case dealing with the requirement of equality as it relates to public financing of elections, see the Rubinstein case, infra, p. 60. For a case dealing with the implications of the requirement that elections be "equal" with respect to public broadcasting time allowed each party, see the Agudat Derekh Eretz case, infra, p. 21. Both cases concerned legislation passed after the Confirmation Law, though the effect of the Confirmation Law was considered by the court in the Agudat Derekh Eretz case.

           

Israel case referred to:

[1]   E.A. 1/65, Yeredor v. Chairman of the Sixth Knesset EIections Committee 19 P.D.(3)365.

 

The Petitioner appeared in person.

 

M. Shamgar, Attorney-General, and Z. Terlo, Director-General of the Ministry of Justice, for the Respondents.

 

 

 

 

 

JUDGMENT

 

            LANDAU J.: On April 30, 1969 this court issued an order nisi against the Minister of Finance, to show cause why he should not refrain from any expenditure under section 6 of the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law 1969 (hereinafter: the Financing Law); and against the State Comptroller - why he should not refrain from any act which he is directed or authorised to implement pursuant to sections 11 and 12 of the Financing Law. The order nisi was issued on the petition of Advocate Dr. A. Bergman, on two principal grounds: one related to the manner in which the Financing Law was initiated and the other to the manner in which this Law was passed in the Knesset.

           

            The first argument is that since the Financing Law imposes a monetary burden on the Treasury, it could only have been initiated by the Government. In fact the Law was initiated by six Knesset members as a private bill (see H.H. 807). The Petitioner bases this argument on the English constitutional practice that finds expression in section 87 of the Standing Orders of the House of Commons, of 1958 (Halsbury-Simonds, vol. 28, p. 442). The Petitioner argues that these directives embody an important and necessary constitutional principle that the legislative branch may not decide on a monetary expenditure on its own initiative, as it does not bear the responsibility for finding sources of revenue to balance the new expenditure.

 

          The Petitioner's second argument is that the passage of the Financing Law was invalid and in violation of the principle of the equality of elections as provided in section 4 of Basic Law: The Knesset (hereinafter: the Basic Law). According to section 46, which was added to the Basic Law in 1959:

         

The majority required under this Law to amend sections 4, 44 or 45 will be required for resolutions of a plenary meeting of the Knesset at every stage of the legislation, other than the debate upon a motion for the agenda of the Knesset. For the purpose of this section "amendment" - either express or implied.

         

          And section 4 of the Basic Law reads:

         

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

         

          The first reading of the Financing Law was passed by the Knesset by a majority of 24 to 2 (D.H., Sixth Knesset, Fourth Session, p. 1377), that is, by less than a majority of the number of Knesset members (61). As for the third reading, the Knesset records (ibid., p. 1674) state merely that the Law was "adopted", without a recorded count of the votes. The Petitioner argues that this session too was not attended by a majority of the Knesset members, and the Attorney-General, who appeared for both the Respondents, did not dispute that. In any event this is immaterial, since section 46 requires a "special" majority at every stage of the legislation.

         

          This petition raises potentially weighty preliminary questions of a constitutional nature, relating to the status of the Basic Laws, and to the justiciability before this court of the issue of the Knesset's actual compliance with a self-imposed limitation in the form of an "entrenched" statutory provision, such as section 4 of the above-mentioned Basic Law. However, the Attorney-General relieved us of the need to deliberate the matter by stating on behalf of the Respondents that they "do not take a position on the question whether the legal validity of a legislative enactment is a justiciable matter before this court, since they are of the opinion that the petition must fail on the merits". He so stated in his heads of argument and repeated it in his oral argument on the return day, and when asked what position he would take if the court found the petition substantiated, he replied that in such event he would put himself at the court's disposal to make his submissions on the question of justiciability. It is therefore up to the court to decide whether it wishes to examine the question of justiciability of its own accord. We have decided not to do so because, for obvious reasons, the substantive problems raised here require urgent resolution, whereas clarification of the preliminary constitutional questions would entail separate, lengthy deliberation. We therefore leave the question of justiciability open for further consideration and, clearly, nothing in this judgment should be taken as an expression of opinion on that matter. The Respondents have also not disputed the Petitioner's standing to file the petition, so that question also does not arise before us.

 

            We now return to the Petitioner's two arguments. The first can be answered briefly. Whatever the law in England - and we find it unnecessary to delve into that question - our law has no statutory provision to prohibit members of the Knesset from initiating a private bill that imposes a monetary burden. Indeed, the Knesset Rules adopted by this body under section 19 of Basic Law: The Knesset indicates the contrary. In the seventh chapter of the Rules, entitled "Debate on Bills of Knesset Members", rule 105(a) provides: "Every member of the Knesset may propose a bill". There is no limitation as to the content of the bill. Section 5 of the Law and Administration Ordinance, 1948, provides that

           

the budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State

           

and again nothing is said as to the manner of initiation of such budgetary legislation on the part of the legislature. The Financing Law here considered is sui generis: it is not a budgetary law in the technical sense, since it does not authorize the government to expend money but rather obliges the Minister of Finance to put certain sums at the disposal of the Chairman of the Knesset. There are no special provisions in our positive law as regards the procedure for enacting a statute of this kind. The Minister of Finance will have to find sources of finance for the monetary expenditure involved in the implementation of this Law, and if he encounters difficulty in doing so that is a matter which, constitutionally speaking, pertains to the relations between the legislative branch and the executive branch, which does not concern this court.

 

            That leaves the principal question: does the Financing Law contradict section 4 of the Basic Law? First, however, we wish to make it clear that this court ought not involve itself in the debate conducted in the Knesset and by the general public concerning the system of state financing of the general activities of the political parties and their specific activity in the elections campaign. Much has been said and written about the deficiencies of this system from the public perspective, while respected members of the Knesset representing a large majority of the House, including the initiators of the Law, have defended this system as necessary in our political reality. They stress, on the one hand, the improvements brought about by this Law compared to the previously prevailing state of affairs, especially as regards limitations on election expenditures and their auditing - two subjects that have no necessary connection with the matter of state funding; and they endeavour, on the other hand, to appease the critics by pointing to the experimental character of the entire Law which is intended to apply only to the seventh Knesset elections.

 

            This entire public debate falls outside the range of our judicial interest - the problem before us is confined within its legal framework. What is the Petitioner's legal argument? He argued, half-heartedly, that "it is doubtful whether the allocation of funds to political parties is an allocation for purposes of state", citing an opinion of the Massachusetts Supreme Court that such is not an expenditure for a "public purpose" in the sense of that state's constitutional law (197 N.E.2d 691). We have no similar provision in our law, which suffices to dispose of this argument. For us, therefore, the question is framed within the context of section 4 of the Basic Law alone. In this respect the learned Attorney-General argued that there is no contradiction between equality in the elections as secured under section 4 of the Basic Law and the provisions of the Financing Law. He contended that the entire section 4 deals only with the elections system in its technical sense, as evidenced by the marginal heading of the section, and that the principle of equality it embodies means only that each voter has one vote of equal weight - that and no more. In support of this argument he referred us to the legislative history of this provision, which has its origins in the Mandate period, in rule 4 of the Knesset Israel Elections Regulations of March 1, 1930, and also to the constitutions of other countries in which the principle of "one man one vote" finds explicit recognition. He argued that this technical principle should not be confused with the fundamental principle of equality for all before the law, which is likewise expressed in various constitutions. But we do not have a written constitution. It is true that we too recognize the equality of citizens before the law as a fundamental principle of our constitutional regime, yet that principle has not been embodied in a written constitution or even in a provision of a basic law that requires a special majority for amendment. Hence there is nothing to prevent the legislature from deviating from this principle even in a law passed by an ordinary majority. The Financing Law should be seen as part of the Elections Law, and section 4 of the Basic Law itself says that the Knesset shall be elected "by general elections in accordance with the Knesset Elections Law". In any event, if the Financing Law deviates at all from the principle of equality, it is but a minor deviation which is to be accepted so that other important goals are achieved, such as preventing the undue fragmentation that could result from too rigid an application of the equality principle in financing.

           

            With all due respect we must dismiss this argument because it does not answer adequately the Petitioner's main complaint: that limitation of the funding to parties represented in the present, sixth Knesset exclusively, is prejudicial to equality of opportunity for those new candidates lists that seek to take part in the campaign for the seventh Knesset elections but were not represented in the sixth Knesset.

 

            We do not accept the argument that section 4 of the Basic Law merely prescribes technical directions regarding the conduct of the elections. We are prepared to assume that the draftsmen of this section envisaged primarily the principle of "one man one vote" when they prescribed that the elections should be "equal". But we do not believe that this exhausts the full meaning of the programmatic provision in the Basic Law. Each of the adjectives "general, national, direct, relative" has two facets: they address both the right to elect and the right to be elected, and there is no reason why the word "equal" should not be given the same broad meaning. This is indicated by the order of the sections: first section 4 with its general significance, and then the more specific provisions in section 5 regarding the right to vote, and in section 6 - regarding the right to be elected. Were it otherwise, and the word "equal" referred only to the right to vote, it would have been more natural to include the idea of "one man one vote" in section 5.

           

            If the principle of equality in section 4 extends to the right to be elected, it must also find expression in an equality of opportunity for the various candidates lists that contend in the Knesset elections. For in our elections system the election candidates join in candidates lists that are submitted either by a party group of the outgoing Knesset or - in the case of a new list - by 750 voters (section 4 of the Knesset Elections Law [Consolidated Version], 1969). In this way the individual candidate aspires to achieve his set goal, and by the same token the will of the individual voter is realized in voting for the list.

           

            This interpretation of the equality provision in section 4 is consistent with the fundamental principle of the equality of all persons before the law. To be more precise, it applies as an emanation thereof in the specific area of the law of elections. But it can also exist independently without resting upon a provision in a written constitution that expressly declares the principle of the equality of all persons before the law. We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime. It is therefore only right - precisely in the borderline cases, where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught. This fortifies our construction of the equality provision in section 4.

           

            After all, what is the simple meaning of the words "equal elections"? What would we say, for example, about a statutory provision that allowed only one list of candidates? Could such elections be called "equal" because each voter still has one vote? Or, assuming the Financing Law determined that only the largest party was entitled to state funding - we would certainly regard that as a glaring violation of the equality principle in section 4. In other words, this section has the potency to prevent violations of equality also beyond the narrow confines of "one man one vote".

 

            Before we examine the Financing Law in light of our above-mentioned comments, we wish to note three preliminary points. First, a Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision (and it is stressed again that everything here said presupposes that the matter is justiciable before this court). Second, we are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. Thus, for example, in the Yeredor case[l] this court affirmed a decision to disqualify a list of candidates whose purpose was to undermine the existence of the State of Israel. Likewise, with regard to the matter of state funding for the elections: all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality. It was not argued here that for this reason they are invalid. Third, and related to the preceding point, the issue before us - state financing of elections - is complicated and complex by its very nature and its legislative solution entails diverse practical considerations that require special expertise, which this court lacks.

           

            Without overlooking all this, we have concluded that the absolute denial of funds to new lists of party candidates substantially prejudices these lists' equality of opportunity, thus violating the equality principle in section 4 to an unjustifiable degree that goes beyond a minor deviation from that principle. We have already mentioned the provision in the Knesset Elections Law that allows any 750 voters to submit a candidates list. This opens the doors of the Knesset to new party groups. Such opportunity is one of the hallmarks of our democratic regime in general and our elections system in particular. It might be argued that the situation of a new list in the elections to the seventh Knesset is no worse than it was in the elections to the sixth Knesset, since such a list can still finance its election expenditures from private sources. We would answer that this is not the correct comparison to make; rather the current situation of such a list should be compared with the current situation of the existing party groups, and, if so, it is clear that the new list is at a real disadvantage compared to the others, because these are entitled to receive substantial sums from the state coffers to finance their expenditures whereas the new list is denied that right.

 

            In the Knesset debates on the Financing Law, the merits of a method of finance based on the balance of party power in the outgoing (sixth) Knesset was contrasted with a method based on the new party balance in the incoming (seventh) Knesset. The Knesset preferred the first method and one of its main reasons for so doing was the danger that short-lived lists would be formed because of the temptation to receive an advance on the funding allocation. This danger can be countered without causing the inequality that we have found to be unlawful, by promising a new list funding without an advance payment and only retrospectively after it has stood the test of the elections and gained at least one seat. All this on condition that the list has consented in advance to the audit by the State Comptroller in accordance with the Financing Law, and has met all the other conditions specified in the Law. It appears to us that provisions of this nature could still be added to the Financing Law without undue difficulty, without changing the existing provisions as regards the parties represented in the sixth Knesset and without overturning the entire situation, so as to avoid the apprehended inequality. It need hardly be said that in making this suggestion we in no way presume to encroach upon the sovereignty of the Knesset as the legislative authority.

           

            The Knesset accordingly has two courses from which to choose: it can reenact the financing provisions in the Financing Law, despite their inherent inequality, if the majority required under sections 4 and 46 of the Basic Law is mustered; or it can amend the Law so as to remove the inequality, and we have indicated above a possible way of doing so.

           

            We therefore make absolute the order nisi in the sense that the first Respondent, the Minister of Finance, is to act pursuant to section 6 of the Financing Law only if the financing provisions in the Law are reenacted with the required majority, or if the Law is amended so as to remove the inequality contained therein. We see no need to issue any order against the State Comptroller. Respondent no. 1 shall pay the Petitioner his costs in the petition.

           

            Judgment given on July 3, 1969