International Law

HCJ 727/00

 

1.  Committee of Heads of Local Arab Councils in Israel

2.  Balal Ibrahim

3.  Agudat Ha’arba’aim

4.  Il Beit, the Arab Association for the Protection of Human Rights

5.  Adalah Legal Center for Arab Minority Rights in Israel

v.

1.  Ministry of Construction and Housing

2.  Prime Minister of Israel, Ehud Barak

 

The Supreme Court Sitting as the High Court of Justice

[December 12th, 2001]

Before President A. Barak, Justices J. Türkel and D. Beinisch

 

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: Petition seeking the establishment of egalitarian socio-economic criteria for the implementation of the Neighborhood Restoration Project, and a similar inclusion of Arab settlements, which are ranked under the first and second cluster by the Central Office of Statistics, to the inclusion within the project of Jewish settlements which fall under that same ranking.

 

Held: In the majority opinion, written by Justice Beinisch, the petition was granted in part as to the requested criteria.  The court determined that the petition was made partially extraneous given the drafting of new criteria in 1999, and that the criteria were to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria was to be given explicit expression within the criteria.  The petition was denied in relation to the immediate inclusion of all the settlements detailed therein.

 

Israeli cases cited:

[1]      HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[2]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs IsrSC 54(2) 164.

[3]      HCJ 59/88 Tzaban v. Minister of Treasury IsrSC 42(4) 705.

[4]      HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister IsrSC 52(4) 193-205.

[5]      HCJ 1438/98 Conservative Movement v. The Minister of Religious Affairs (unreported).

[6]      HCJ 3792/95 National Youth Theater v. Minister of Science and Arts IsrSC 51(4) 259.

[7]      HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance IsrSC 46(1) 191.

[8]      HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing IsrSC 54(2) 503.

 

For petitioners – Maruan Dalel

For respondent – Malchiel Blass

 

JUDGMENT

 

Justice D. Beinisch

1.    An order nisi was issued by the Court ordering the respondents to explain why egalitarian socio-economic criteria are not to be established for the implementation of the Neighborhood Restoration Project (hereinafter: ‘the project’).  So too, the order directs the respondents to explain why they are not including all the Arab settlements which were ranked in the first and second cluster according to the rankings of the Central Office of Statistics (hereinafter: ‘the COS’) within the project in the same way that all the Jewish settlements which belong to these clusters are included in the project.

Background to the Petition

The background to the petition is the desire of the petitioners – public entities from within the Arab population – to implement educational and welfare programs in the Arab sector, a demand that has already been raised in a prior petition: HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport (hereinafter: ‘HCJ EWS’) [1].  In that petition the question of the implementation of the Division for Educational and Welfare Services (EWS division) programs in Arab educational institutions in Israel was under consideration, and it was determined that funds were to be granted gradually for implementation of the division’s programs in a manner relative to the proportion of the Arab population in the overall population in Israel.  It was clarified in that petition that some of the division’s funds are distributed via a Neighborhood Restoration Project to those settlements and neighborhoods that have been included in the project.  The claim relating to the budget for neighborhood restoration was dismissed for being too general, and because the EWS budget which relates to the Neighborhood Restoration Project constitutes only one component in the many components which result from the inclusion of a settlement within the Neighborhood Restoration Project.  As we noted in that case [1]:

‘Including a settlement or a neighborhood within this project is a necessary condition for the existence of the neighborhood restoration program that the EWS division implements.  However, this inclusion is in the hands of the Ministry of Construction and Housing, which operates according to principles determined by the government.  This matter, therefore, warrants a separate inquiry, which will focus on the consideration of the criteria according to which the government enacts the Neighborhood Restoration Project.  Given that the petition before us focuses on the question of discrimination in regard to welfare in educational funds, while the subject of broadening the Neighborhood Restoration Project relates to the extension of a wide net that is not laid out before us in this petition – we have not seen fit to deliberate on it in the framework of the petition before us.’ (p. 239 of the judgment).

Consequently, the petition before us, which deals in its entirety with the Neighborhood Restoration Project in all is various components, both physical and social-educational, was submitted.

The neighborhood restoration project

2.    We have learned of the quality, essence, and scope of the Neighborhood Restoration Project from the affidavit given in support of the State’s response which was signed by the head of the division for social neighborhood restoration and the coordinator of government offices for the project since September, 1982, Ms. Hagit Hovev.  In her affidavit Ms. Hovev surveyed the development of the Neighborhood Restoration Project since its establishment was announced in 1977, when it was established as a national-social project of the State in collaboration with Diaspora Jews via the Jewish Agency.  As is apparent from her affidavit, the project was intended to deal in a comprehensive and multi-faceted manner with social disparity in the State and to deal in particular with points of social hardship and areas of physical wear in city centers and development towns.  The project is the responsibility of the Ministry of Construction and Housing, and includes two primary realms: the physical realm and the social realm.  The physical realm of the project includes many components, among them:  expanding residential apartments, renovation of residential buildings and courtyards, completion of the development of public infrastructure, renovation of apartments for the elderly, and encouragement of the purchase of apartments under public lease.  The social realm includes inter alia: programs for the very young, reinforcement of formal studies, programs for youth and at-risk youth and higher education programs.

At first, the project was jointly administered by the government and the Jewish Agency, whereby the Agency served as the mediating entity between the project’s administration and the Jewish communities abroad, and also participated in its financing.  However, since 1990, following the immigration from the CIS, the Agency’s role in the project diminished, and it was passed on to government hands, both in terms of administration and budget.  Implementation of the project is fairly flexible: the project may include both entire settlements, and specific neighborhoods suffering hardship within established cities.  So too, a settlement or neighborhood might be included in only one realm of the project, for example: the physical realm without being included in the other realm of the project.  It is important to note that the project is limited in time, and after its implementation is completed in a particular settlement, the settlement is removed from the project.

The arguments of the parties

3.    The parties are claiming three different remedies, which all surround one central claim, which is a claim of discrimination.  The petitioners present much numerical data which proves, according to them, the difficult situation of the Arab settlements and the discriminatory attitude toward them, in the limited scope of the application of the Neighborhood Restoration Project to them.  Inter alia, they claim that despite the fact that all of the Jewish neighborhoods that are in the first three clusters of the COS ranking are included in the project, only 5 out of 48 of the Arab settlements found in these clusters are included in the project.  Consequently, the petitioners request in their petition that egalitarian criteria be established for implementing the Neighborhood Restoration Project, and they also request that an egalitarian policy be administered between the Arab settlements and the Jewish settlements by including within the framework of the project all the Arab settlements found in clusters 1 and 2 in the  COS ranking.

After the order nisi was granted, the State’s response was received on April 13, 2000.  In its response the State did not disagree with the need for egalitarian treatment of the Arab population, but claimed that the question at the center of the discussion in our matter was the question of ‘the application of the concept of equality’.  According to the State’s claim, the application is particularly complex in the case before us, where it is a matter of a project that has been implemented for over twenty years and when the ramification of the requested remedy is a budget increase of tens of millions of shekels per year, or a detraction from funds given to other settlements which are not party to the petition.  Beyond this generalized claim, the State raised many additional arguments in the framework of the two affidavits that were attached to the petition – the aforementioned affidavit from the Ministry of Construction and Housing and an affidavit on behalf of the Prime Minister’s office.  First, the State admits that at first the project included a relatively small number of Arab settlements as it was a joint project of the State, the Jewish Agency and Jewish communities in the world.  According to its claim, with the lessening of the role of the Jewish agency in the project there has been a marked increase in the number of Arab settlements and neighborhoods included in the project.  According to the claim, as a result of the respondents' policy as to the appropriate criteria for application of the project, and in consideration of the need to complete implementation of the project in the settlements and neighborhoods in which its implementation had already begun, recent years witnessed a gradual change whereby Arab settlements were added to the project and Jewish settlements in which implementation of the project was completed, were taken out.

As to the matter of the criteria for inclusion of additional settlements in the framework of the project, the State argues that in 1999, new criteria were implemented which guide the inter-office team in its recommendations for inclusion of new neighborhoods or settlements within the project.  These criteria were already added to the State’s response in the framework of the discussion in said HCJ EWS, and they were attached again in attachment HH/1 to the affidavit of Ms. Hagit Hovev which is attached to the State’s response, and in attachment P/4 to the petition.  The four criteria that appear on the list are:  multi-dimensional hardship of a large percentage of the neighborhood’s inhabitants (45%).  A lack or low level of physical and social infrastructures (25%), socio-economic strength of the settlement’s population (20%), the presence of new immigrants or particularly weak populations in the neighborhood (10%).  According to the State’s claim, the petitioners arguments according to which it is appropriate to rely exclusively on the COS data to determine the list of settlements included in the project is to be dismissed, as this data does not give a full picture as to the ranking of the settlements included in the project.  Based on the criteria that were established, the COS data makes up only 60 percent of the points to be weighed which are examined for purposes of implementing the project, while the remaining 40 percent are based on data from the various government offices.  Beyond these criteria the State noted, that beginning in 1986 the Ministry of Construction and Housing decided to give preference in the framework of the project to urban areas of hardship, which are characterized by saturated construction, as in these areas the investment can contribute to improvement in the lives of more residents.  The State further claimed that the new criteria are future-looking only, meaning: they will apply only to settlements that will be included in the project from now on.  According to its claim, a change in criteria which will lead to removing settlements in which the work is in progress will cause damage to these settlements and may cause the funds that were already invested to go to waste.  Beyond this, the State noted that due to the ongoing nature of the project and the limited funds at its disposal, it was decided in 2000 not to include new settlements in the project and to concentrate efforts on the 10 neighborhoods which have been included in the project for many years with the goal of completing the work in them.

Another central claim raised by the State, deals with the existence of alternate programs for investing funds in the Arab sector, programs which are better suited, according to the State’s claim, to the needs of the sector, and their purpose, inter alia, is to add funds to the Arab sector in order to close gaps that were created over the years.  According to the State’s claim, the Neighborhood Restoration Project was intended primarily to assist in renewing an area that has deteriorated or to complete physical or social infrastructures that are lacking, while many of the Arab settlements require establishing infrastructure from scratch.  The central program that according to the State will be able to properly address the needs, including the needs for which the Neighbourhood Restoration Project was intended, is a four year plan to develop the Arab sector which was approved by a government decision dated October 22, 2000, and which will include the total sum of 4 billion NIS (including an addition of 2 billion NIS beyond existing development budgets).  According to the State’s claim, the program is meant to include activity of all government offices, inter alia, construction of infrastructures and public buildings, and funds in the areas of education – building classrooms, pedagogical programs and a five year plan for the Bedouin settlements in the north that was begun in 1998 and which will include a total sum of 615 million NIS.  Beyond these broad programs, the State noted in its response two additional programs, smaller in scope, which are operated by the Ministry of Construction and Housing, and their budgets are also directed at the Arab sector – the ‘reinforcement’ program and the program to complete development in old neighborhoods.

The petitioners, for their part, claimed in response that criteria that relate only to new settlements are not sufficient, and that non-inclusion of Arab settlements immediately in the project causes them cumulative damage, the result of which will be a deepening of the social gaps.  So too, the petitioners noted that the criterion relating to ‘saturated construction’ was not mentioned in the framework of the official criteria and that it is a criterion which distinguishes between groups based on an irrelevant basis and leads to a discriminatory result. In regard to the alternate programs the petitioners argue that it is a matter of a claim that is not relevant, since the existence of one assistance program does not offset the right of the Arab sector to benefit from another program.

Consequent to hearing the parties’ arguments and reading their written arguments the case was taken under consideration.  Later, on May 17, 2001, we decided to ask the respondents additional questions relating to the distinction between the physical and the social realms of the project, to the criterion of ‘saturated building’, to an update as to the results of the efforts to concentrate the effort in the year 2000 and to the extent of implementation of the multi-year program to the Arab sector.

In its response of June 21, 2001 the respondent noted that the criteria are indeed general and do not distinguish between the social and the physical realms of the project.  They also noted that the anchor for the criterion as to ‘saturated construction’ which is not mentioned in the general criteria listed above, is found in the guidelines for external renovation of structure that is included in the project, and which is based on the decision of the entities in charge of the project.  As to concentration of the effort in implementation of the project in the year 2000, the respondents noted that the concentration of effort was a success and the project has ended in 10 neighborhoods in the realm of physical restoration, and in 4 neighborhoods in the realm of social restoration.  The State added in its notice that at this stage no additional settlements or neighborhoods will be included in the project, as it is the intention of the Ministry of Construction and Housing to conduct a comprehensive assessment of the project in the upcoming months.  As to this the Stated noted that:

‘At this stage, the inclusion of additional neighborhoods or settlements to the Neighborhood Restoration Project is not on the agenda as it is the intention of the Minister of Construction and Housing and the Director of its office to conduct a comprehensive assessment in the upcoming months of the cumulative contribution of the Neighborhood Restoration Project from its inception, both in the physical and social realm.  In the framework of this assessment it is the intention of the office to assess the suitability of the underlying premises which are at the basis of the project, the geographic units which will be included in it and a formula for its application to the many changes that have taken place in Israel in the social and urban reality, since the project’s inception.  This stance of the Ministry of Construction and Housing relates to all settlements in Israel that are not included in the project, including Arab settlements which need programs in the social realm.’

As to the application of the multi-year plan to the Arab sector, the State noted that staff work has begun in the budget department of the treasury the purpose of which is to produce necessary regulations for the implementation of the project which were to be presented for approval by the Finance Committee by the end of June 2001.  So too, the State’s counsel noted in his response in a general manner what the areas of overlap are between the multi-year plan and the Neighborhood Restoration Project, and which areas in the project supplement the projects in various aspects.  As of the date of this judgment the State has not given notification as to whether these funds were approved and to what extent.

Current allocation of budgets

4.    As said, the respondents admit in their response, that there was historical discrimination in the allocation of funds in the framework of the Neighborhood Restoration Project, however, according to their claim this discrimination has greatly decreased with the gradual inclusion of Arab settlements and neighborhoods within the project.  In order to prove this claim, the respondents presented before us the data which relates to the year 2000.  As appears from this data, of the settlements and neighborhoods included in the project, close to 20% are Arab settlements, as is the proportion of the Arab population in Israel.  However, this data does not reflect the full picture, and this is also the State’s position in its affidavits.  Comparison of the budgets as they have been presented by the respondents shows that the proportion of funds that were allocated to the minority sector in the framework of the project stands at 10% only.  The State noted that this budget data does not reflect the true sum that was allocated to the minority sector as additional funds were added in additional restoration programs.  According to the claim, in order to get a full picture of the funds directed to the sector the calculation must include two additional programs: the ‘reinforcement’ program and the program of supplementation of development in the older neighborhoods.  The ‘reinforcement’ program is similar in its characteristics to the physical realms of the Neighborhood Restoration Project, and was also intended to deal with physical multi-dimensional hardship, including: external renovation of structures and development of courtyards, renovation of apartments for the elderly and assistance in expansion of apartments.  This program was implemented in a very small number of neighborhoods in the year 2000, and overall in its framework, 7.5 million NIS were allocated, of which 3.8 were allocated to the minority sector.  The program for supplementation of the development of older neighborhoods dealt with the development of the physical infrastructure in minority settlements.  This program is operated within various five-year plans which are designated for the minority sector – a five-year plan for Bedouins in the Negev (which is in preparation phases – although limited funds have already been allocated in its framework), and the multi-year plan for the Arab sector.  In the framework of these programs, the amount of 38.9 million NIS was included in the year 2000 budget of the programs division of the Ministry of Housing, for development of physical infrastructures in minority settlements, as opposed to the sum of 19.75 million NIS which are dedicated to this purpose in Jewish settlements.  According to the State’s claim, if the amounts allocated in the framework of those two programs are included in the overall calculation, it appears that the proportion of funds dedicated to advancing older neighborhoods in the minority sector in Israel reaches up to 24% (about 60 million NIS out of 260 million) – a proportion greater than the portion of the sector in the population.

In order to more accurately assess the claim of the respondents, we must distinguish between the physical side and the social side of the project.  On the physical side, if we also include in the framework of the calculation the two programs parallel to the Neighborhood Restoration Project (both of which relate only to the physical side) then it would appear that the determination is correct that the funds directed at the Arab sector in the year 2000 forms a proportion of 29% of the overall allocation directed at physical restoration in Israel (about 50 million NIS out of 174 million NIS).  This proportion is greater than the portion of the sector in the population, and therefore, on its face, there does not appear to be discrimination, but rather a goal of remedying the disadvantage.

Conversely as to the social realm the funds directed to the Arab sector in the framework of the Neighborhood Restoration Project, makes up only 13% of the total budget (12 million NIS out of 90 million) a proportion lesser than the proportion of the sector in the population.  The situation that is created indeed creates a feeling of discrimination which is particularly oppressive given that many of the Arab settlements are at the bottom of the socio-economic ranking.  We also discussed the painful situation of discrimination in funds intended for education in the Arab sector and the need to address this seriously in said HCJ EWS, which dealt, as said, with the implementation of EWS programs in the Arab sector, it was stated there:

‘In the framework of the petition there was no disputing that education in the Arab sector has been disadvantaged over many years and there was no dispute that this needs to be corrected.  From the responses submitted to us on behalf of the State we have been convinced that significant steps have been taken for the allocation of budgetary resources to the Arab sector in order to achieve the goal of equality of resources in said area in accordance with the relative proportion of the Arab population in Israel.’ (p. 240 of the judgment)

The question before us is what is the conclusion to be drawn in the framework of the petition before us as to this matter, both in relation to the petition to establish egalitarian criteria and in relation to the petition for inclusion of Arab settlements within the project.

The principle of equality in allocation of state funds

5.    It appears that it is not necessary to go back and expand on the fact that the value of equality is a basic value in our legal system, and that it stands at the basis of our democratic regime.  In light of its status the value of equality obligates the authority in the implementation of the totality of its powers.  We have noted more than once that the value of equality obligates the authority in allocation of state funds.  Such allocation must be done on an egalitarian basis and according to clear criteria.  As Justice Zamir has said in HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affair [2] at 170:

‘The principle of equality binds every public entity in the State.  First, it binds the State itself.  The principle of equality applies to all the areas in which the State operates.  It applies first and foremost to the allocation of the State’s funds.  The resources of the State, whether in land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them in accordance with the principle of equality, without discrimination on the basis of religion, race, gender or other illegitimate consideration.’

And, at p. 172 as well:

‘Discrimination on the basis of religion or nationality in allocation of state funds, which is even prohibited if it is done indirectly, certainly is a fortiori prohibited when it is done directly.’(See, for example, HCJ 59/88 Tzaban v. Minister of Treasury [3] at 706; HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister [4] at 205.)

These words are true seven-fold when it is a matter of allocation of state funds for the actualization of basic rights such as the right to education, housing, or health.

It is clear that when an authority is directed to act with equality, we are dealing with substantive equality, and not merely formal equality.  At times, in order to achieve substantive equality we must act differently toward different individuals.  Violation of the principle of equality which creates the grounds for our intervention is different treatment of individuals amongst whom there is no difference relevant to the matter at hand (see for example HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs [5] paragraph 20).  In the words of Justice Zamir, discriminatory treatment is different treatment of those who belong to the same ‘equality group’ (see HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [6] 281-283).  From this starting point we are to examine the question of application of the Neighborhood Restoration Project to the Arab sector.

The question of criteria

6.    The first part of the petition deals with the subject of criteria.  As said, according to the petitioners claim, social-economic egalitarian criteria are to be established for application of the project.  As is seen from the State’s response, in 1999, an inter-office commission examined the criteria for the project that were established in the 1980’s, and following this examination new and egalitarian criteria were established which the State has given notice are already in place and will serve from now on as a basis for inclusion of settlements in the framework of the project.  We have already mentioned that the criteria include both multi-dimensional social hardship and multi-dimensional physical hardship.  According to the State’s claim, the new criteria which were established are 60% based on the rankings of the COS, and 40% on additional data from various government offices.  From the State’s response it is further seen that there exists in fact an additional criterion which does not appear explicitly in the list of criteria that were presented to the court, although it influences the inclusion of neighborhoods within the framework of the physical realm of the project – and that is the criterion of granting preference to an urban neighborhood characterized by saturated construction.  In response to additional questions by the Court, it was stated by the State that this criterion is anchored in a procedure for external renovation of structures and the development of courtyards from the year 1998 (which replaced previous procedures from 1986 and 1993), which establishes that renovation of residential buildings is conditioned upon it being a structure that includes at least four residential units.  So too, it was emphasized that there are dozens of criteria and internal guidelines in each of the relevant offices which relate to specific programs operated in the framework of the project.  As is seen from the State’s response, the criteria detailed in P/4, which are, as stated, new, relate only to the inclusion of new settlements in the project, and do not apply to neighborhoods already included in the project, according to arrangements and policy that was determined years ago.

As said, criteria for distribution of budgets from the public pie must be egalitarian in nature, but beyond this, the criteria must also fulfill the other rules which apply to administrative decisions, which means that: they must be based on relevant considerations, a factual basis which reflects the relationship between the purpose for which the financial allocation was intended and the relevant facts, and they must meet tests of reasonableness. (See for example HCJ 1438/98 [5] above).  So too the criteria must be sufficiently concrete to enable their application according to objective measures to the extent possible.  (See HCJ 3792/95 [6] above, at pp. 273-274).

7.    The Neighborhood Restoration Project is in fact characterized by two levels of criteria: the first level, deals with the criteria which serve to determine which neighborhoods or settlements will be included in the project.  The second level, deals with specific and more detailed criteria which relate to the operation of certain programs which are included in the Neighborhood Restoration Project.  These criteria are of course only relevant to neighborhoods or settlements which have overcome the hurdles of the first level's criteria and are included in the project.  In this petition we are dealing with the first level of criteria, meaning: criteria which relate to the inclusion of a neighborhood or settlement within the project.  On its face it appears that the list of criteria brought to us, meets the necessary conditions for allocation of state funds.  It is a matter of criteria which are based on objective sources of information that the government has – COS data and data from various government offices, the criteria are suited to the purpose of the project and they explicitly note the relative weight of each criterion.  Therefore, ostensibly, these criteria are self-evidently egalitarian and reasonable.  However, it is worth noting, that for some reason the inter-office commission chose to draft the criteria in technical and opaque language which appears to be intelligible only to those with specialized knowledge.  It seems that it is appropriate that criteria which apply to the public be drafted in a more detailed, explicit, and clear manner.  Thus, for example, it would be appropriate to detail the content of the phrase ‘multi-dimensional hardship’ and that all the relevant quantitative variables be detailed, whether directly, or by way of reference, such that those dealing with the matter – Jewish and Arab settlements as one – will know what the standards are for allocating the project’s funds and its applicability to them.

The generalized drafting of the criteria on its own, even if it requires clarification, does not point to a flaw which justifies our intervention to nullify them; moreover, in their response to the State’s response the petitioners are not making arguments against the criteria as they were presented.  Therefore, were these criteria the only criteria for inclusion of settlements and neighborhoods in the project, it might be possible to say that the State properly addressed the first part of the petition, making what was requested superfluous.  However, it turns out that it is not so.  From the State’s response it appears that there is an additional criterion which is not included in the list of criteria of the first level – the one that determines the settlements included in the project – and it constitutes a hidden criterion which is able to influence the determination relative to the inclusion of neighborhoods in the project.  It is the criterion of saturated construction, which is anchored – according to the State’s claim – in an internal guideline which relates to the renovation of houses and courtyards – a specific guideline which relates to a specific program which belongs to the physical realm of the project.  Ostensibly, it is therefore a matter of a criterion which by its nature belongs to the second level of criteria – a criterion which relates to a specific program – which filtered through to the first level of criteria, as it was used to determine the neighborhoods which would be included in the project to at the beginning.  Using this criterion which is not counted among the criteria on the list is not proper, both due to its lack of inclusion and because of the lack of clarity as to the weight it is given as to the substance of the determination as to inclusion in the project.

8.    The petitions argue that applying a criterion which conditions implementation of the project on the existence of saturated construction, excludes their settlements from the project overall, as Arab settlements are not urban settlements that were built with saturated construction.  Lacking data as to the quality and scope of influence of this criterion among the other criteria, we cannot determine that this criterion may be an obstacle to inclusion of the Arab settlements in the framework of the project, even though it certainly may impact the scope of the inclusion of Arab settlements, many of which are not saturated construction settlements.  On the other hand, it is not to be said in a sweeping manner that saturated construction removes the Arab sector from the project in light of the existence of distressed neighborhoods in many urban cities in which there is a dense Arab population.  Despite this, the claim is correct that under the circumstances there was a flaw in the application of the criteria of saturated construction as a pre-condition to the implementation of the project.

It should be said first, that when the implementation of the project is dependent, among other things, on the physical condition of neighborhoods and structures, there is nothing wrong in principle with the fact that among other considerations which relate to the physical aspect, consideration which relate to the density of the population and the density of the construction will also be considered.  Giving preference to restorative treatment in areas of distress of high residential density which is characteristic of urban settlements constitutes a relevant and legitimate consideration.  There is also nothing wrong with the rationale that the State raised for giving preference to urban neighborhoods due to the advantage which stems from the effectiveness of the investment in crowded neighborhoods.  However, as has been said more than once in our case law, when we are dealing with equal distribution of resources it is not sufficient that the considerations for allocation are relevant considerations, but there is also significance to the weight of each of the relevant considerations.  In determining standards for budgetary allocation the totality of considerations which relate to the goal for which the financial support was intended, is to be taken into consideration.  Thus for example, the fact that the said criterion is not related at all to the social realm of the project necessitates the conclusion that in the face of the double purpose of the project – physical and social – the criterion which relates to the physical aspect of the project is not to be given determinative weight as to implementation within the social aspect.

Accordingly it can be determined that the saturated construction criterion is not to be used as a threshold criteria until this criterion is included in the list of criteria which determine the conditions for implementing the project and its relative weight, among the other criteria, its scope and concrete reference to the degree of the density of the construction, is clearly defined.  In determining the relative weight of this criterion it is to be taken into account that considerations which relate to the physical aspect of the project are not exhaustive or exclusive and the project also has the purpose of support and encouragement in the social-educational realm in distressed regions.

Therefore, as long as there is not explicit reference in the criteria for the implementation of the project to the criterion of saturated construction, and as long as its relative weight is not determined, this criterion is not to be included as a pre-condition to the implementation of the program.  Subject to the defining of the criterion which relates to saturated construction, as explained above, the establishment of the new criteria is able to address what has been sought under the first part of the petition.

Inclusion of the settlements in the first and second cluster in the project

9.    The State’s notice as to the implementation of criteria for the inclusion of new settlements in the framework of the project does not satisfy the petitioners even if they are not claiming that the criteria that were implemented are flawed.  It is the petitioners’ claim that even if from now on the inclusion of settlements in the project is done on an egalitarian basis, since it is a matter of an ongoing project, the passage of time deepens the schism between the needy settlements in the Arab sector and the settlements that are included in the project already.  They also claim in response to the supplement to the State’s answer, that despite the State’s notice that there is an intention not to include new settlements in the project, the Arab settlements which ranked in the socio-economic scale of the COS as belonging to the first and second clusters should be included in the framework of the Neighborhood Restoration Project.

This petition–to include all the settlements in the first and second cluster of the COS in the Neighborhood Restoration Project – is to be denied in the face of the formulation of the new criteria.  With the establishment of the criteria, the test for including settlements within the framework of the project is in the suitability of the settlement to said criteria, and a determination based exclusively on COS data is not longer sufficient.  However, by the nature of things, in light of the heavy weight of the COS data in the framework of the criteria, and in light of the great hardship which exists in the Arab sector, which no one disputes, it is reasonable to assume that the result of establishing the new criteria will be the inclusion of the settlements under discussion in the petition, or at least most of them, in the project.  Indeed this is the significance of applying egalitarian criteria; including settlements in which the hardship is greater before settlements whose economic-social situation is better.

However, in the face of the existence of the new criteria, the parties dispute remains; it deals with the question:  whether in the present situation as long as the Neighborhood Restoration Project exists as to settlements which were recognized in the framework of the project in the past, it is proper to add the requested Arab settlements immediately, without waiting for their gradual inclusion according to the criteria which were established.  The State argues as to this, that the request to add additional settlements to the project now, is to be denied.  In its reasoning it points to the fact that the budget for neighborhood restoration is limited in scope and since it is an ongoing project, the addition of new settlements may harm those that have already been included in the framework of the program.

10.  We accept that a change in a discriminatory policy and implementation of a new and egalitarian policy, on its own, does not justify harming those who were included in the original program.  (see as to the this: HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance [7] at p. 207; HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing [8] at p. 523).   The neighborhoods and settlements that were included in the past in the Neighborhood Restoration Project are distressed neighborhoods and there is no dispute that it is not appropriate to stop programs in these neighborhoods and settlements.  The petitioners note that they are not asking for this.  It is to be taken into consideration that it is a matter of ongoing programs whose implementation has already begun and it is proper to enable their completion.  Moreover, the settlements benefitting from these programs have a reliance interest that is also to be recognized for the purpose of granting additional allocation for completion of the project.  Therefore, inclusion of the Arab settlements without consideration of the limited scope of the project in its present formulation, and without consideration of the reliance interest of those benefitting from it, is not a proper solution.

As for the need to remedy the disadvantage caused to the Arab sector in this matter, the State argues that the proper way to address the situation that was created is in implementation of the government decision of October 22, 2000, to implement the multi-year program in the framework of which funds will be allocated in broad scope to development of settlements in the Arab sector and programs whose purpose overlaps with the programs included in the Neighborhood Restoration Project will also be implemented.  These designated programs are meant to be in a scope that is significantly broader than the Neighborhood Restoration Project and encompass both realms of physical infrastructure and social realms.  This response of the State does not properly address what is requested in the petition.  The multi-year plan is indeed meant to address the disadvantage that has been created over the years and to bridge the gaps of the past, but at this time, at the phase in which the multi-year plan is in today, it cannot serve as a substitute for programs operated via the Neighborhood Restoration Project.  This is for two reasons: the first, due to the absence of concrete-budgetary expression for said plans, and the second which is derived from it, that absent budgetary expression, it cannot be established whether the designated program was necessarily designated for development of a program parallel to the one included in the Neighborhood Restoration Project.  If defined programs will be established which will also have budgetary expression and which will have the ability to address the needs which today are addressed in the framework of the Neighborhood Restoration Project, it will be possible to determine that any program equal in weight will replace a similar program given within the framework of the project.  However, as long as there is no such concrete expression, the program does not create an exemption of the requirement to apply the said project to the Arab sector.

As we have described, in the situation that was created the core of the problem is in implementing the programs in the social realm and in particular in education programs.  In the petition in HCJ EWS [1] we discussed the need to establish conditions for implementation of the special programs of the Division for Education and Welfare Services in the Ministry of Education – the EWS Division – in an egalitarian manner on the Arab sector.  It was made clear that a certain part of the activity of the division which deals with advancing weak populations in Israel is conditioned on the inclusion of the settlement or neighborhood in the framework of the Neighborhood Restoration Project, and that the part of the Arab settlements in this project was very limited.  With the addition of Arab settlements to the project, over the course of the years, there has been improvement in this matter, however, the proportion of the funds granted in the framework of the Neighborhood Restoration Project in the social realm is still lower than the appropriate relative proportion in accordance with the size of the population and in accordance with its needs, which differs from the allocation of funds in the physical realm which is included in neighborhood restoration.  This is not an appropriate situation.  The State has the duty to grant education to the overall population according to egalitarian criteria, while giving equal opportunity.  When it chose to establish programs for the advancement of education in distressed strata, via the Neighborhood Restoration Project, it must maintain these programs in an egalitarian manner, and even detached from the realm of physical restoration.  As we noted, the Neighborhood Restoration Project enables separation between the physical realm and the social realm.

As said, from the State’s notice we have learned that the future of the project is being re-examined and that this re-examination will take several months.  It is to be assumed that the re-examination is nearing an end; before we point to the appropriate remedy, we will note that the petition is based on the presumption that the Neighborhood Restoration Project continues to exist and this is also the starting point of our discussion.  Accordingly, we accept the State’s claim that consequent to the ongoing character of the project which still necessitates its operation in neighborhoods included within it, and in consideration of the limited budget designated to the project today, it will not be possible include immediately all the distressed Arab neighborhoods.  However, the budgetary portion of the project which relates to social restoration is to be implemented for the appropriate settlements according to the established criteria, within a short time period.  This implementation will be done to a degree that suits the needs and hardship of the Arab sector, and in any event, in a degree that will not be less than its relative proportion in the population.

11.  In conclusion, the necessary conclusion of the above is this:

(A)  As to the first remedy, which deals with establishing egalitarian criteria, the petition was made partially extraneous in the face of the drafting of the requested criteria in 1999.  However, as said above, the criteria are to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria is to be given explicit expression within them.

 (B) The petition to include within the project all the Arab settlements which are included in the first and second clusters according to the socio-economic ranking of the COS is denied.  However, we determine that if it is not decided to end the Neighborhood Restoration Project, the objective of including new settlements in the project, on the assumption that settlements whose hardship is the greatest will be included in accordance with the criteria as they will be amended, is to be continued.  In all that relates to programs which relate to the social-educational realm of the project, they are to be given preference and to be applied to Arab settlements in a proportion which matches their needs and their hardship.  In any event, beginning with the next budget year, care is to be taken that the proportion of the budget that is designated for the Arab sector in the framework of the social-educational realm of the project is not to be less than the relative proportion of the sector in the population.

(C)  The multi-year plan for development in the Arab sector whose importance the government of Israel has recognized, and proclaimed its intention to actualize in a gradual manner, will not detract from the Neighborhood Restoration Project, unless it establishes programs of equal value which can replace the programs operated today in this realm.

The petition is therefore granted in part as to the requested criteria as said in paragraph 11(a), and is denied as to the immediate inclusion of all the settlements detailed in the petition subject to what has been detailed in paragraphs 11(b) and (c).  Under the circumstances there is no order as to expenses.

 

 

President A. Barak

I agree.

 

Justice J. Kedmi

I agree.

 

It was decided as per the opinion of Justice Beinisch.

 

12 December 2001

27 Kislev 5762

 

 

 

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

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

 

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

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

 

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

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

 

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

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

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

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

 

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

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

 

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

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

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

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

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

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

For the petitioner in HCJ 4421/10: Himself

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

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

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

 

 

Judgment

 

 

President D. Beinisch:

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

The President          Justice                 Justice

_________________________

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

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

HCJ 3117/02

Center for the Defence of the Individual, founded by Dr. Lotah Saltzberger

v.

The Minister of Defence

 

The Supreme Court sitting as the High Court of Justice

[April 14, 2002]

Before President Barak., Justices T. Or  and D. Beinisch.

 

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

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners argued that respondent was not using the special rescue unit of the IDF Homefront Command to search for all persons that may be buried alive under ruins in the Jenin refugee camp.

 

Held: The Supreme Court held that both law and morality mandated that the rescue unit enter the Jenin refugee camp. As this unit had entered the camp, as per respondents reply, the goal of the petition had been fulfilled.

 

For the petitioners—Yossi Wolfson

For the respondent—Malchiel Blass, Yuval Rotman

 

JUDGMENT

This petition before us asks why respondent does not, using the special rescue unit of the IDF Homefront Command, search for and rescue all persons buried alive under the ruins of the Jenin refugee camp. The petition was served on Saturday night. The Justice on duty decided that the petition would be heard today, April 14, 2002, in the morning. At the beginning of the hearing, with respondent not having had time to prepare a written response, he informed us that the rescue unit of the Homefront Command had already entered the Jenin refugee camp, together with other forces, to the extent that security restrictions have allowed. The unit will attempt to locate people.

As such, it appears to us that this petition has achieved its objectives.  The entry of the rescue unit is necessitated by both law and morality. The responsibility lies, of course, on the shoulders of the Military Commander on site. He will collect information regarding the possible location of people—information relayed by soldiers and locals, as well as making use of the experience of the unit itself. All this is subject to the judgment of the Military Commander and to the security needs in the field.

In light of the declaration of the State, the petition is rejected.

April 14, 2002

 

 

HCJ 3278/02                                                                                             

 

1.  HaMoked: The Center for the Defence of the Individual founded by Dr. Lotte Salzberger

2.  Adalah – The Legal Center for Arab Minority Rights in Israel

3.  The Association for Civil Rights in Israel

4.  B’tselem – The Israeli Information Center of Human Rights in the Occupied Territories

5.  Kanon – The Palestinian Organization for the Protection of Human and Environmental Rights

6.  Addameer – Prison Support and Human Rights Association

7.  Alhak – The Law in Service of Human Rights

v.

Commander of the IDF Forces in the West Bank

 

 

 

The Supreme Court Sitting as the High Court of Justice

[April 25, 2002; July 28, 2002, October 15, 2002]

Before President A. Barak, Justice D. Beinisch and Justice I. Englard

 

For the petitioners—Dan Yakir; Leah Tzemel; Tarek Ibrahim; Yossi Wolfson; Hisham Shabaita

For the respondents—Shai Nitzan

 

 

JUDGMENT

President A. Barak

 

Facts

 

1.   Beginning in September of 2000, there was an increase in Palestinian terrorist activity against the Jewish community in Judea and Samaria, the Gaza Strip, and within Israel itself.  Hundreds were killed and wounded.  In reaction, the army initiated military activities.  Hundreds of Palestinians were killed and wounded.  Terrorist activity intensified in the beginning of 2002.  In March of that year there was an increase of Palestinian terrorist activity.  Approximately one hundred and twenty Israeli civilians were killed and hundreds were wounded.  In response to the terrorist activity, the government decided, on 29.03.2002, to carry out a large-scale military operation.  The goal of the operation, Operation Defensive Wall, was to destroy the Palestinian terrorist infrastructure.  During the operation, the Israel Defense Forces [hereinafter the IDF] entered many areas in Judea and Samaria which were under the control of the Palestinian Authority.

                                     

2.   Within the framework of Operation Defensive wall, the army carried out a wide-ranging operation of detention. The IDF entered Palestinian cities and villages and detained many suspects.  At the height of the activity about 6000 people were detained.  Initially, the detentions were carried out in accordance with the standard criminal detention laws of the area, specifically Security Regulations Order 387 (Judea and Samaria)-1970.  Since 5.04.2002, the detentions have been carried out under the authority of a special order—Detention in Time of Warfare (Temporary Order) (Judea and Samaria) (Number 1500)-2002 [hereinafter Order 1500].  During the first stage of these detentions, the detainees were brought to temporary facilities, which were set up at brigade headquarters. Here the detainees were initially screened, a process whose duration extended between a few hours and two days.  At this point, a substantial number of the detainees were released. During the second stage, those who remained were transferred to a  central detention facility in the area, located at Ofer Camp, for further investigation. Several days after the initiation of Operation Defensive Wall, after the detention facilities at Ofer Camp were prepared, the temporary screening facilities were shut down and the initial screening stage also took place at Ofer Camp.  The petition before us is directed against the detention conditions at both the initial temporary facilities and at Ofer Camp.  In the third stage, some of the detainees were transferred to Kziot Camp.  An additional petition directed against the detention conditions at Kziot, HCJ 5591/02, is pending before this Court, and will be dealt with separately.  A petition regarding the lawfulness of Order 1500 is also pending before this Court. See HCJ 3239/02.  The current petition deals only with the temporary detention conditions at the brigade headquarters during the first stage, and the detentions conditions during the second phase at Ofer Camp.

 

Petitioners’ Arguments

 

3.   The petitioners complain about the detention conditions at both the temporary facilities and at Ofer camp.  Regarding the temporary facilities, the petitioners claim that the detainees were forced to sit on the ground with their heads bent and their hands down, and that their hands were handcuffed in a rough manner, which caused fierce pains and bruise marks.  Furthermore, petitioners claim that the detainees' eyes were covered, that, if they moved or raised their heads, they were exposed to the physical and verbal abuse of the supervising soldiers, that they remained in this difficult position for hours, and that, during this time, they were exposed to the rigors of the weather and were unable to sleep.  Petitioners further assert that detainees were deprived of sustenance, that, though they were permitted to go to the bathroom, permission was not often granted, and that there was no documentation of the possessions that were taken from the detainees, including ID cards, cellular phones and cash. 

 

4.   The petitioners also complain about the inhumane conditions at Ofer Camp.  They claim that the facilities are exceedingly overcrowded.  The detainees were transferred into tents or “shelters," which do not shield the detainees against the rigors of the weather.  The detainees were not supplied with sufficient mattresses, nor were the mattresses that were supplied of reasonable quality.  Furthermore, petitioners assert that the detainees did not receive enough blankets, and that the food that they were provided with was insufficient and of poor quality.  Meals were served in small bowls, without plates or other eating utensils.  They were not provided with clothing.  There were not enough bathroom stalls, nor were they supplied with sufficient toilet paper.  The showers did not have hot water, nor was there sufficient soap.  Furthermore, they assert that, other than painkillers, they received no medical treatment.

 

5.   The petitioners ask that we order the respondent to provide minimal humane detention conditions – which will be reasonable and appropriate – both during the first stage of detention at the temporary facilities and also during the second stage of detention in Ofer Camp.  These conditions must be both suitable and respectable.  The petitioners also ask that we order the respondent to allow representatives of human rights organizations to visit Ofer Camp and observe the conditions of detention provided there.

 

Statement of the State Attorney

 

6.   In the response brief submitted on 24.4.2002, the respondent notes that, at the beginning of Operation Defensive wall, due to the large number of persons being detained, it was impossible to immediately provide all of the detainees with completely suitable detention conditions.  Therefore, for a relatively short period of time, not all of the detainees were provided with completely acceptable detention conditions.  Nevertheless, the army equipped itself very quickly.  Most of the temporary facilities were shut down.  The conditions in Ofer Camp were improved such that all of the detainees are now provided with reasonable detention conditions which meet the standards recognized by both Israeli and international law. 

 

7.   Regarding the conditions in the temporary facilities, respondent notes that the detainees remained there only a short period of time – usually for only a few hours, and no longer than forty-eight.  There, the detainees went through preliminarily interrogation and tentative screening.  Respondent notes that the temporary facilities were not equipped for long-term detentions and the conditions there provided were absolutely minimal.  Nevertheless, respondent noted that to the best of his knowledge, the detainees had been supplied with drinking water, sustenance and medical treatment by doctors on location.  The detainees had access to the bathrooms. Regarding the handcuffs, it was emphasized that the manner of handcuffing the petitioners complain of is prohibited, and that soldiers have no permission to employ such methods.  Respondent asserts that each complaint will be dealt with individually.  Regarding the failure to document the possessions seized from the detainees, it was noted that at the beginning of the period there had apparently been deficiencies in the matter, due to the lack of awareness of those running the facilities.  The situation was quickly remedied, with an order being issued to precisely document of all possessions seized from detainees.  To the best of the respondent’s knowledge, this order has been implemented.  With respect to the complaint that the detainees should be held in a shelter shielded from the weather, the respondent points out that the temporary facilities were intended to hold detainees for very short periods of time.  Some of the detainees were provided with shelter, whether in tents or in permanent buildings.  With regard to the claim that the detainees were subject to the verbal and physical abuse of the soldiers, respondent asserts that such activity is prohibited.  He adds that the detainees can complain about such matters to the commanders in the respective facilities.

 

8.   As to Ofer Camp: respondent asserts that some of the detainees were moved there after an initial screening at the temporary facilities.  When the temporary facilities were shut down, all of the detainees were moved to the Ofer Camp.  Between 29.03.2002 and 22.04.2002, over the course of about three weeks, about 3,000 detainees were brought to the facility.  After being screened and interrogated, about 1,420 of those detained were released, a figure that is correct as of 22.04.2002.  About 240 detainees had been moved to other detention facilities as of that date, such that by 24.04.2002 approximately 1,340 detainees were being held in Ofer Camp.  Ordinarily, Ofer Camp has the capacity to hold about 450 detainees.  The facility is divided into five “detention divisions."  Five tents, designed to hold 100 detainees each, are located in four of these divisions.   Three tents are located in the fifth division, each designed to hold fifty persons. 

 

9.   The number of detainees transferred to Ofer Camp upon its opening greatly exceeded its standard or expanded capacity. In its standard capacity, Ofer is designed to hold 400 persons. In its expanded capacity, it is designed to 700 detainees, such that thirty, instead of twenty, detainees reside in each tent.  A severe situation of overcrowding developed.  In order to resolve this problem, four permanent shelters were quickly erected, using beams which had been found in the facility.  These were to provide temporary shelter for detainees.  These shelters were equipped with wooden beds and chemical bathrooms.  Later, showers were also installed in the shelters.  The shelters were prepared within a number of days.  Thus, the most severe overcrowding problem, which had caused some detainees to remain without shelter for a short period of time, was temporarily resolved.

 

10. Along with the above-mentioned activity, three days after the initiation of Operation Defensive wall, a decision was made to set up seven additional detention divisions in Ofer Camp.  These areas were opened on 24.04.2002.  They are designed to hold about 500 detainees.  The detainees who had been residing in the shelters were moved to these divisions. Two more divisions are scheduled to be opened within the next few days.  Detainees who are currently being held in the other detention divisions will be moved to the new divisions, thus relieving the overcrowding in the other facilities.  The respondent is of the opinion that the facility, after being so expanded, provides reasonable detention conditions.

 

11. The respondent extensively covered the issue of the detention conditions at Ofer Camp.  According to the respondent, as stated, since the completion of the construction activities on 24.04.2002, the issue of overcrowding no longer presents a problem.  There are three bathrooms and three showers located in each of the detention divisions, and the water in the showers may be heated. The detainees are supplied with toilet paper, soap, toothbrushes and shaving brushes.  The detainees sleep on wooden beds with mattresses, which are the same as those used by the IDF.  Initially, the number of blankets available was insufficient.   This problem was solved within a number of days, and each detainee is now supplied with at least three or four blankets.  Regarding the issue of clothing, each detainee was originally supplied with one change of clothes.  However, due to the large number of detainees, many of them soon found themselves lacking extra sets of clothing.  This problem was resolved on 23.04.2002, when a sufficient quantity of clothing arrived at the facility.  As of the time the response was submitted on 24.02.2002, each of the detainees had received at least one, if not two, changes of clothes.  Each of the detainees is provided with a coat.  Regarding the issue of sustenance, during the first few days of the facility’s operation, the food lacked in quantity and variety.  Within a matter of days, a sufficient amount of food was brought into Ofer Camp, and there is no longer a deficiency in the food supply.  The food supplied is now sufficient and varied.  A doctor is always available on location.  As part of his reception into the facility, each detainee undergoes a medical examination. Medical inspections are regularly carried out.  When it becomes necessary, detainees are moved to a hospital.  After arriving at the facility, each detainee receives a postcard and is allowed to communicate the details of his detention, including his location, to his family.  These postcards are transferred to the Palestinian Authority.  Ofer Camp has two tents in which detainees may meet with their attorneys.  Since 14.04.2002, the Red Cross has been allowed to enter the facility, and their representatives have been visiting the site without restriction.  They converse with each of the detainees in the facility.  They meet with the commanding officials and relate their comments about the detention conditions.

 

12. The respondent concluded by objecting to allowing the petitioners’ attorneys to visit Ofer camp.  He claimed that there are no legal grounds for such a request.  As noted, representatives of the Red Cross visit the facility freely, and this ensures that an outside, international body supervises the facility.

 

The First Hearing – April 25, 2002

 

13.             Upon receiving the respondent’s response brief, we held the first hearing in this matter.  The petitioners emphasized that the army should have prepared itself for the large number of persons who were to be detained, and that this oversight was a consequence of the army’s disrespect towards the fundamental rights of the detainees.  The petitioners complained about the sleeping difficulties caused by the wooden beds and thin mattresses.  Three blankets are insufficient.  The food is occasionally served cold. The detainees do not receive hot drinks.  Petitioners reiterated their request that the petitioners' attorneys be allowed to visit Ofer Camp.  The respondent stated that, regardless and independent of this petition, the army has learned the necessary lessons from its initial experiences. The facility is no longer overcrowded and its occupancy is decreasing daily.  The sleeping conditions match the IDF standards.  Each of the detainees receives four or five blankets, and upon request is provided with additional blankets.  The food provided is sufficient and is in accordance with IDF nourishment charts.

 

14. During the oral arguments we asked whether the respondent would allow the petitioners’ attorneys to visit Ofer Camp.  The respondent pointed out that the attorneys do not have visitation rights.  Nevertheless, petitioner agreed to allow a joint visit, with both himself and the petitioners, to the facility.  At the end of the hearing, we decided to postpone this proceeding to a later date.  We noted before us that five representatives of the petitioners would be permitted to visit Ofer Camp, along with the respondent’s attorney.  We ordered that within five days after the visit, the petitioners’ counsel should submit a statement.  The respondent would then be granted five additional days to submit his response.  We decided that the petition would be decided based on the contents of those statements.

 

15. Implementing the decision to allow the visit raised a number of difficulties.  During their visit, petitioners’ counsel requested that they be allowed to converse directly with the detainees.  The respondent asserted that the visit was being allowed ex gratia, and that he had initially indicated that the visitors would not be allowed to converse with the detainees.  He added that one of the petitioners’ representatives, who had requested to meet with the detainees, was charged with disruption of legal proceedings for relaying messages illegally.  The petitioners’ attorneys could learn of the detainees’ complaints from their individual lawyers, who are in constant contact with them.  In light of this response, the petitioners’ attorney refused to proceed with the visit.  They requested that we order the respondent to allow the petitioners’ attorneys to meet with representatives of the detainees during their visit.  We decided to advise the parties, on 8.05.2002, that military personnel in the facility escort the visitors during their visit and decide, in exercise of their discretion, whether to allow the visitors to meet with representatives of the detainees.

 

16. Petitioners’ attorneys visited Ofer Camp on 22.05.2002.  Representatives of the State Attorney, the Judge Advocate-General and the commanders of the camp also attended.  The visit included entrance into a standard detention division where the detainees reside and the detention division where the kitchen is located.  Petitioners’ attorneys were permitted to speak with a number of the detainees’ representatives.  The respondent informed us that, despite the agreement between the parties, the petitioners’ representatives spread out among the tents and began talking to various detainees, disregarding the pleas made by the respondent’s representatives. 

 

17. After the visit we received supplementary statements from both parties.  The petitioners noted that the physical conditions of the camp had been improved since the petition had been submitted.  Nevertheless, the visit – which did not allow detailed or thorough observation of detention conditions – revealed a long list of issues which have yet to be resolved.  According to the petitioners, the following principle problems surfaced: detainees do not receive sufficient medical treatment for their illnesses; the tents are overcrowded; twenty two detainees are held in each tent; other than the sleeping areas, there is no room for the detainees to move around; it is difficult to sleep on the thin five centimeter mattresses of the wooden beds; the heat in the tents is unbearable; the three showers and three bathrooms in each division are insufficient; the maintenance of the stalls is deficient;  the quantity of clothing provided is insufficient;  the detainees are not provided with games or reading materials, save the Koran.  The petitioners' attorney listed other problems in a separate letter to the respondent.

 

18. In his supplementary statement, the respondent complained about the behavior of petitioners’ counsel during their visit in the Camp.  His response also addressed the claims made by the petitioners.  Regarding medical treatment, he noted that there is an infirmary in Ofer Camp, which employs a large staff of five doctors, medics and pharmacists.  The stock of medications is sufficient.  A doctor or medic inspects every detainee as is necessary.  When the medical treatment offered by the facility does not suffice, the detainee is moved to a hospital.  With regard to the crowding in the tents, at the time of the visit 900 detainees were residing at the facility.  At most, each tent held twenty-two detainees.  The area of each tent is sixty square meters.  The wooden beds are lined up along both sides of the tents.  In the center of the tents, there is an empty space 1.4 meters wide for passage.  The number of bathrooms and showers – three per 100 detainees – is absolutely reasonable, considering the fact that access to these six stalls is unlimited throughout the day.  With respect to the claim regarding the absence of books and games, the respondent informed us that the Red Cross provides the detainees with both.

 

The Second Hearing – July 28, 2002

 

19. Upon receiving statements from both parties we held a second hearing.  The petitioners' attorneys limited their claims to the physical conditions in which the detainees were being held.  They repeated the claims that they had presented in their supplementary statement, while complaining of the overcrowding and heat in the tents, the absence of dining tables which causes the detainees to eat on the floor, the sleeping difficulties, the insufficient quantity of clothing provided and the small number of bathrooms and showers.

 

20. The respondent admitted that, in fact, when the detentions first began, the detainees were not provided with minimal dentition conditions.  Nevertheless, within a matter of days these were improved, such that Ofer Camp now operates reasonably and satisfactorily.  Five hundred and eighty detainees currently reside in the eight detention divisions.  Regarding the congestion in the tents, he pointed out that each currently holds only fourteen detainees.  There is a space of 45 centimeters between each of the beds.  Sustenance is provided according to the IDF nourishment chart.  Detainees who desire are permitted to have their own food brought in by visiting families.  Every detainee is supplied with three sets of clothing.  Some of the detainees prefer not to wear the military garments provided.  They are permitted to wear their own clothing, which is brought to them by their families.  The respondent added that the Red Cross regularly visits the facility, and that each detainee is free to speak with them.  Every detainee is entitled to meet with his attorney who may lodge, in his name, concrete and specific complaints regarding his condition. 

 

The Third Hearing – October 15, 2002

 

21. During the third and final hearing in this matter, the parties repeated their basic positions.  The petitioners' attorney noted the difficult situation that the detainees faced in the first stages of detention.  He claims that even now the detainees’ rights are being violated.  The overcrowding persists; the beds are unsuitable for sleeping; the bathrooms are inappropriate; a number of the faucets are malfunctioning and the facility is not equipped for the winter.  In his response brief the respondent noted that, in the first stages of detention, “there was a big mess."  In time, the conditions have been improved and they now meet legal requirements.  With regard to crowding, it was indicated that the facility is designed to hold 1,100 persons, and it was now holds only 900 detainees.  As such, overcrowding is no longer an issue.  The beds meet IDF standards. The missing faucets were taken by the detainees themselves, and in any case had already been repaired.  The facility is equipped for the winter, and the drainage problem has been solved.

 

The Normative Framework

 

22. The detention conditions in the area are primarily laid down by the Imprisonment Facility Operation (West Bank) Order 29-1967 [hereinafter, the Imprisonment Order].  This order provides directives regarding the conditions of imprisonment in the area.  Most of its provisions, save the following three, have no bearing on the matter at hand.  First, the order specifies that “prisoners shall be provided with appropriate nourishment that will guarantee the preservation of their health," Imprisonment Order, § 4, that “prisoners shall be provided with necessary medical treatment," Imprisonment Order § 5(a), and that “prisoners shall receive a receipt when their family identification and personal ID cards are taken," Imprisonment Order § 7.

 

23. These specific provisions are subject to the general principles of customary international law.  They are also subject to the directives regarding detention conditions set out in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter, the Fourth Geneva Convention].  As is well-known, Israel considers itself bound by the humanitarian directives of this Convention.  The respondent reiterated this commitment while in his response to the petition before us.  The directives of the Geneva Convention regarding detention conditions are clearly of a humanitarian nature; therefore they should be adhered to.  The question of whether or not the Basic Law: Human Dignity and Liberty applies to detention conditions in the area need not be answered here.  The general principles of administrative law, which apply to Israeli soldiers in the area, are sufficient for this matter. See  HCJ 393/82 Jamait Askan v. IDF Commander in Judea and Samaria, IsrSC 37(4) 785.  According to these principles, the army must act, inter alia, reasonably and proportionately, while striking a proper balance between the liberty of the individual and the needs of the public. One may learn about the proper standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners.  These standards were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and were ratified by the United Nations in 1957 and in 1977. See HCJ 221/80 Darvish v. The Prison Service, IsrSC 35(1) 536, 539-40, [hereinafter Darvish]; HCJ 540-546/86 Yosef v. Administrator of the Central Prison in Judea and Samaria, IsrSC 40(1) 567, 573, [hereinafter Yosef]; HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801, 832, [hereinafter Sajadia]. These standards apply to all imprisoned persons, including detainees.  Needless to say, these general standards must always be adjusted to the specific circumstances, with regard to time and place, while ensuring adherence to at least the bare minimum.  Justice Bach has noted:

 

One should not infer from this that all of the directives of the convention regarding the detention conditions of administrative detainees must be followed blindly.  Each and every directive should be examined with regard to its significance, its indispensability, and its adjustment to the special circumstances of the detention facility which is the subject of our proceeding.

 

Sajadia, at 832. Furthermore, we do not deal here with the imprisonment conditions of prisoners held in prisons.  We are dealing with the detention conditions of those being held in detention facilities in the area.  These detainees were detained during warfare in the area.  According to the security forces, the circumstances of the detentions are such that there is fear that the detainees endanger or are liable to endanger the security of the area, the security of IDF forces, or national security. See Order 1500 (the definition of “detainee.") 

 

24. The basic point of departure for our discussion is the balancing point between the liberty of the individual and the security of the public.  On the one hand are the rights of the individual who enjoys the presumption of innocence and desires to live as he wishes.  On the other hand lies society’s need to defend itself against those who rise up against it. Detention laws in general, and, more specifically, detention conditions, reflect this balance.  Here we find the position that detainees should be treated humanely and in recognition of their human dignity.  This is expressed in article 10 of the 1966 International Covenant on Civil and Political Rights.  Israel is a member of this covenant.  Article 10 of this covenant is generally recognized as reflecting customary international law. See N. S. Rodley, The Treatment of Prisoners Under International Law 27 (2nd ed. 1999).  The article states:

 

All persons deprived of their liberty shall be treated with human dignity and with respect for the inherent dignity of the human person.

 

See also the first principle of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43d Sess., Supp. No. 49, U.N. Doc. A/43/49 (1988).  Israel acts according to this principle with regard to all prisoners and detainees. See CApp 7440/97 State of Israel v. Golan, IsrSC 52(1) 1; HCJL.A. 6561/97 The State of Israel v. Mendelson, IsrSC 52(5) 849; HCJL.A. 823/96 Wanunu v. The Prison Service, IsrSC 51(2) 873).  Vice President H. Cohen expressed this principle in Darvish:

 

Any person in Israel, who has been sentenced to imprisonment, or lawfully detained, is entitled to be held under humane and civilized conditions.  It is not significant that this right has yet to be explicitly stated in legislation: this is one of the fundamental human rights, and in a law-abiding democratic state it is so self-evident that it needs not be written or legislated.

 

Darvish, at 538. Indeed, the nature of detention necessitates the denial of liberty. Even so, this does not justify the violation of human dignity.  It is possible to detain persons in a manner which preserves their human dignity, even as national security and public safety are protected. Compare Yosef, at 573. Prisoners should not be crammed like animals into inadequate spaces. Even those suspected of terrorist activity of the worst kind are entitled to conditions of detention which satisfy minimal standards of humane treatment and ensure basic human necessities.  How could we consider ourselves civilized if we did not   guarantee civilized standards to those in our custody?  Such is the duty of the commander of the area under international law, and such is his duty under our administrative law.  Such is the duty of the Israeli government, in accord with its fundamental character: Jewish, democratic and humane. Compare Yosef, at 573.

 

25. In addition to these principles, we must consider the principles and regulations set forth in the Fourth Geneva Convention. Article 27 of the Fourth Geneva Convention sets out the point of departure for the convention:

 

Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof against and against insults and public curiosity....

 

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

 

Alongside this general directive, the Fourth Geneva Convention includes a number of directives which refer to specific conditions of detention.  We shall examine those directives which are relevant to the petition before us, and which reflect the proper balance between the right of detainees and the security needs of the area.  These directives apply to persons in “internment," meaning administrative detention. Apparently, these directives do not apply directly to detentions for the purpose of interrogation, though, indirectly, they do bear heavily on such situations.  Thus, there is no reason not to refer to these directives in regard to the detention conditions before us.  Some of the detainees being held at Ofer Camp, who are in the last stages of their detention, remain there on the authority of an administrative detention order.  The aforementioned directives directly apply to those detainees.  The Geneva Convention specifies that detention conditions must preserve the health and personal hygiene of the detainees, while protecting them from weather conditions.  The detention facility should be properly lit and heated, especially in the late afternoon and until curfew; the sleeping areas should be sufficiently spacious and ventilated; and, in providing bedding, the weather conditions, as well as the age, gender and health conditions of the detainees, should be taken into account.  Detainees should be provided with clean and hygienically maintained bathrooms.  The detainees should receive a sufficient supply of soap and water for laundry and daily bathing; they should be provided with the necessary equipment to this end.  Detainees shall have access to showers, as well as sufficient time for bathing. See Fourth Geneva Convention, art. 85.  Detainees shall receive daily nourishment which is satisfactory in its quantity, quality and variety, such that it preserves their health and prevents the development of illnesses which originate in malnutrition; detainees shall be allowed to prepare their own food; they shall be provided with a sufficient supply of drinking water. Fourth Geneva Convention, art. 89.  Detainees shall be provided with sufficient changes of clothing, appropriate for the weather conditions. Fourth Geneva Convention, art. 90. An infirmary supervised by doctors shall be located in each detention area; detainees shall have unlimited access to medical authorities. Fourth Geneva Convention, art. 91.  Detainees shall undergo medical inspections at least once a month. Fourth Geneva Convention, art. 92.  The authorities will encourage learning and educational activities.  They will also encourage the detainees to engage in sports and games.  Sufficient space will be allotted for sporting activities. Fourth Geneva Convention, art. 94.  Any items taken from the detainee at the time of his detention shall be returned to him upon his release. Family identification and personal ID cards shall not be seized without providing the detainee with a receipt.  Detainees shall never remain without identification. Fourth Geneva Convention, art. 97.  The disciplinary order in the detention facility must conform to the principles of humanity.  The body and spirit of the detainees shall not be harmed. Fourth Geneva Convention, art. 100. The minimal standards of treating prisoners, which apply to all forms of detention, do not add significant provisions on the matters relevant to this petition.  It is sufficient to note the following requirements: detainees require minimal space for sleeping, lighting and heating. Fourth Geneva Convention, reg. 10. Each detainee shall have his own bed. Fourth Geneva Convention, art. reg. 19. At least one hour of physical activity shall be allowed. Fourth Geneva Convention, art. 21. A doctor from the detention facility shall inspect the conditions of sanitation.

 

From the General to the Specific

 

26. In order to implement these specific principles and rules in this case, we must distinguish between the two stages of detention the detainees went through.  First, we shall deal with the detention in the temporary facilities.  This occurred during the first days of detention.  The detainees were held at brigade headquarters, which was not adequately prepared for so many detainees.  These special circumstances should be taken into account when examining whether the respondent maintained the necessary detention conditions.  In referring to the issue of overcrowding in Sajadia, President Shamgar correctly stated: 

 

The existence of extreme crowding at the beginning of the wave of detentions may be explained by the security need for the simultaneous imprisonment of many people.

 

Sajadia, at 823. Nevertheless, even in such a situation, everything must be done to preserve the minimal standards of detention conditions.  These standards were not observed during the initial stages of detentions at the temporary facilities, and this conduct violated the detention order, the international laws which apply to the area and the fundamental principles of Israeli administrative law.  It will suffice to note several blatant breaches of these standards: detainees’ hands were handcuffed in a rough manner, which resulted in fierce pains and bruise marks; some of the detainees were kept outside for hours, as many as forty-eight, not sheltered from weather conditions and without sufficient access to bathrooms; their possessions were taken from them without being documented.  These conditions of detention can not be justified, nor can other deviations from minimal standards be excused by the need to accommodate so many detainees in such a short period of time. The necessity was known in advance.  It was expected.  Operation Defensive wall was planned in advance.  One of its goals was to arrest as many suspected terrorists as possible.  As such, the need for minimal detention conditions was a natural result of the goals of the operation.  There was no surprise in the matter.  There was the possibility of preparing appropriate divisions with suitable detention conditions.  What was done a number of days after the beginning of the operation should have been done several days before it began.  Indeed, security needs – which must always be taken into account – did not justify the inadequacies in the conditions of detention in the temporary facilities.

 

27. During the second phase, the detainees relocated to Ofer Camp.  During the first days in which the detainees were received in Ofer Camp, some of the minimal requirements regarding detention conditions were not fulfilled.  As we have seen, at the beginning of Operation Defensive Wall, Ofer Camp’s capacity was 450 detainees, with the option of expanding to 700.  In fact, a much larger number of detainees were brought to the facility.  The overcrowding was unbearable.  A substantial number of detainees remained unsheltered, exposed to the rigors of weather conditions.  Not all of the detainees received a sufficient supply of blankets.  These circumstances did not satisfy minimal standards of detention conditions, and had no security justification.

 

28. Shortly after, Ofer Camp's entered a period of routine operation, during which minimal requirements were satisfied.  This was the situation when the respondent first submitted his statement on 24.04.2002, and at the time of the first hearing.  Since then, additional improvements have been made.  The current conditions essentially satisfy the minimal required conditions, and in some cases, the conditions in Ofer Camp even exceed such minimal requirements.  Such a state of affairs is appropriate:  "minimal conditions" guarantee, as their name suggests, only the necessary minimum.  Israel, as a Jewish and democratic state, should aim to more than the minimum, and the respondent acted admirably in ensuring that, regarding certain matters, the conditions exceed minimum requirements.  Even so, two matters still demand improvement.  First, the army should reconsider the issue of supplying tables at which the detainees may eat.  The explanation offered for the absence of such tables – that the detainees will dismantle the tables, and use them in such a way as will disturb security – is unconvincing.  The detainees have not used the wooden beds in this manner, and there is no reason to believe they will do so with tables.  Additionally, concrete tables may be deeply embedded in the ground, thus preventing the detainees from dismantling them.  For those accustomed to eat at tables, the need for such tables is part of their human dignity.  Detainees are not animals and they should not be forced to eat on the ground. See Yoseph, at 575.  It is of course possible that there is not enough space for tables, whether in or around the tents.  This may require the expansion of the detention camp.  The weight and position of this argument has not been explored before us, and we ask that the matter be reconsidered.  Second, the respondent must ensure that books, newspapers and games be provided to the detainees.  Minimal standards demand this, and the matter should not be left to the Red Cross.  It is the respondent’s duty, and fulfilling it does not interfere with security.   Naturally, if the Red Cross has already supplied the detainees with these items, the respondent is no longer obligated to do so.

 

Detention Conditions and Judicial Review

 

29. This Court has always exercised wide-ranging judicial review concerning conditions of imprisonment and detention.  The Court has done so regarding Israeli prisoners and detainees.  It has done so regarding prisoners and detainees from the area.  In all of these cases, the Court thoroughly investigated the arguments, even considering the smallest details of the conditions of detention.  Thus, for example, Darvish dealt entirely with a security prisoner’s right to have a bed in his cell.  When necessary, visits were arranged to the prison, see Yosef, or the detention facility, see Sajadia.  Even so, our judicial review is not a substitute for constant review by the proper authorities in the army itself.  In Sajadia, President Shamgar emphasized this with regard to Kziot Camp, which, like Ofer Camp, holds many detainees from the area:

 

Considering the structure and function of the Court, it cannot perform continual inspection and supervision; however, constant inspection and proper supervision does allows for addressing and examining issues that may arise in a facility which holds such a large number of detainees.  By determining procedures of supervision, it becomes easier to strike the proper balance between providing just and humane conditions, and the need to maintain internal order and discipline and preserve safety and security

 

Sajadia, at 825. A similar problem now lies before us.  During oral arguments, various suggestions were made.  It seems that we are compelled to repeat the recommendation made in Sajadia by President Shamgar, to which all the justices there – both Vice- President M. Elon as well as Justice G. Bach – agreed:

 

As such, we find it appropriate to direct the respondents' attention towards the need to determine efficient manners of inspection and supervision. Our suggestion is that the respondent consider nominating a permanent advisory committee, which will carry out constant inspection and will report and advise the respondent on the matter of the detention conditions in the Kziot detention facility.  The head of the committee can be a senior military judge from the military tribunal units, and the committee may consist of experts from the fields of medicine, psychology, and jailing management.

 

Sajadia, at 825-26. Unfortunately, according to the information we have received, it seems this suggestion has not been put into action.  We ask that this recommendation be brought to the attention of the military's Chief of Staff.  We are confident that he will act to ensure its implementation.

 

30. Even more so: constant supervision and inspection are not substitutes for detainee petitions and judicial review.  These other options are available to detainees in Israel. See Prisons Ordinance [New Version]-1971, § 62A(a). Amending security legislation in order to allow such similar review should be considered.  Of course, such an arrangement would not replace judicial supervision by the High Court of Justice.  It would, however, provide alternative relief, which would justify limiting the judicial review of this Court to those cases where the situation has not been resolved through these other methods.

 

Petition Denied.

 

Justice D. Beinisch

I agree.

 

Justice I. Englard

I agree.

 

Petition Denied.

December 18, 2002

 

 

 

 

 

 

Petition granted.

23 Kislev 5767.

14 December 2006.

 

HCJ 3239/02

 

                   

1. Iad Ashak Mahmud Marab
2. Ahsan Abed Al Ftah Id Dahdul
3. Weesam Abed Al Ftah Id Dahdul
4. Center for the Defense of the Individual founded by Dr. Lota Salzberger
5. B’tselem—The Israeli Information Center of Human Rights in the Occupied Territories
6. The Association for Human Rights in Israel
7. Physicians for Human Rights
8. Adalah—The Legal Center for Arab Minority Rights in Israel
9. Kanon—The Palestinian Organization for the Protection of Human and Environmental Rights
10. Public Committee Against Torture

v.                                     

1. IDF Commander in the West Bank
2. Judea and Samaria Brigade Headquarters

 

 

The Supreme Court Sitting as the High Court of Justice

[April 18 2002, July 28 2002]

Before President A. Barak, Justice D. Dorner and Justice I. Englard

 

 

For the petitioner —Lila Margalit

For the respondent —Anar Hellman

  

 

Judgment

President A. Barak

The Facts

1.  Since September 2002, Palestinians have carried out many terrorist attacks against Israelis, both in Judea and Samaria as well as in Israel.  The defense forces have been fighting this terrorism.  To destroy the terrorist infrastructure, the Israeli government decided to carry out an extensive operation, Operation Defensive Wall.  As part of this operation, which was initiated at the end of March 2002, the IDF forces entered various areas of Judea and Samaria.  Their intention was to detain wanted persons as well as members of several terrorist organizations.  As of May 5, 2002, about 7000 persons had been detained in the context of this operation.  Among those detained were persons who were not associated with terrorism; some of these persons were released after a short period of time.  Initial screening was done in temporary facilities which were set up at brigade headquarters.  Those who were not released after this screening were moved to the detention facility in Ofer Camp.  The investigation continued and many more were released.  A number of the detainees were then moved to the detention facility in Kziot.  As of May 15, 2002, of the 7000 persons who had been detained since the start of Operation Defensive Wall, about 1600 remained in detention.

2.  The detentions were initially carried out under the regular criminal detention laws of the area, under the Defense Regulations Order (Judea and Samaria) (Number 378)-1970 [hereinafter Order 378].  It soon became clear that Order 378 did not provide a suitable framework for screening thousands of persons detained within a number of days.  Thus, on May 5, 2002, respondent no. 1 promulgated a special order: Detention in Time of Warfare (Temporary Order) (Judean and Samaria) (Number 1500)-2002 [hereinafter Order 1500].

3.  Order 1500 established a special framework regarding detention during warfare.  The order applied to a “detainee,” which was defined as follows:

Detainee —one who has been detained, since March 29, 2002, in the context of military operations in the area and the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, the IDF, or the public.

The principal innovation of Order 1500 may be found in section 2(a):

Notwithstanding sections 78(a)-78(d) of the Defense Regulations Order (Judea and Samaria) (Number 378)-1970 [hereinafter the Defense Regulations Order], an officer will have the authority to order, in writing, that a detainee be held in detention, for up to 18 days [hereinafter the detention period].

Under this section, officers are authorized to order the detention of a detainee for a period of 18 days, and a judicial detention order is not required.  In order to continue holding a detainee beyond 18 days, however, a judge must be approached.  Section 2(d) of Order 1500 relates explicitly to this matter:

Continuing to hold a detainee in detention for investigative purposes, beyond the detention period, will be done under the authority of a detention order issued by a judge, in accordance with section 78(f) of the Defense Regulations Order.

During the first 18 day period of detention, detainees have no option to be heard by a judge.  This is due to the fact that under section 78(i) of Order 378, a judge’s authority to order the release of detainees is limited to those detained who have been detainees in accordance with those specific sections.  However, the detainees in question were not detained under these regulations, but rather under the terms of Order 1500, which explicitly grants authority to detain “[n]otwithstanding sections 78(a)-78(d)” of Order 378.  In this specific regard, Order 1500 differs from Order 378 in two ways. First, an officer has the authority to order the detention of a detainee for a period of 18 days himself, and need not obtain a judicial order. Second, during that detention period, there is no judicial review of the detention order. Of course, an officer has the authority to release the detainee before the detention period has passed. See Order 1500, § 2(c).

Order 1500 also differs from Order 378 is a second manner. Under Order 1500, “a detainee shall not meet a lawyer during the detention period.” See Order 1500, § 3(a). However, “meeting between a detainee and his lawyer after the detention period may only be prevented by the authorities in accordance with section 78C(c)(2) of the Defense Regulations Order.” See Order 1500, § 3(b).  Thus, after the 18 day detention period has passed, meetings with lawyers shall be allowed, unless disallowed by the standard procedures of Order 378.  Under this law, the relevant authority may, in a written decision, prevent a meeting between a detainee and his lawyer for an additional period of 15 days, if it has been convinced that such is necessary for the security of the area or for the benefit of the investigation.

Finally, Order 1500 adds that “a detainee shall be given the opportunity to raise claims opposing his detention within eight days.” See Order 1500, § 2(b).  As such, during the first eight days of his detention, a detainee may be held without being given the opportunity to be heard.  Order 1500, which was issued on April 5, 2002, was to be valid for two months.

4.  As we have seen, Order 1500 states that in order to hold a detainee for a period which exceeds the 18 day detention period, a judge must be approached. This judge proceeds under the provisions of the standard detention law. See Order 1500, § 2(3) of Order 1500. It became clear, however, that there are many detainees who have been screened, yet have not been brought before a judge, despite the fact that their 18-day detention period has passed.  To rectify this situation, an additional order was issued on May 1, 2002: Detention in Time of Warfare (Temporary Order) (Amendment) (Judea and Samaria) (Number 1502)-2002 (hereinafter Order 1502).  This order provided that section 2(d) of Order 1500 shall be marked subsection (1), after which shall be inserted subsection (2), which would provide that:

(2) Any person who has been detained under sub-section (1) for a period which exceeds the detention period, whose detention is necessary for further investigation, and who has not been brought before a judge in accordance with sub-section (d)(2), shall be brought before one as soon as possible, and, in any event, no later than May 10, 2002.

A detainee who has not been brought before a judge within this period of time shall be released, unless there stands a cause for his detention under any other law.

Order 1502 also provided that its provisions would remain in effect until May 10, 2002.

5.  Aside from Order 378, which is concerned with criminal detention, and Order 1500 (as amendment by Order 1502), which is concerned with detention during times of warfare, and which was specially issued within the context of Operation Defensive Wall, there also exists defense regulations which apply to the area and deal with administrative detention.  The main order in this regard is the Administrative Detentions Order (Temporary Order) (Judea and Samaria) (Number 1226)-1988 [hereinafter Order 1226].  This order has undergone numerous amendments.  After the issue and amendment of Order 1500, Order 1226 was amended accordingly.  Issues concerning these orders do not stand before us.

6.  To conclude this review of the relevant defense regulations, it should be noted that Order 1500 was to remain in effect for a period of two months. See Order 1500, § 5. As this expiration date approached, the order was extended by Order: Detention in Time of Warfare (Temporary Order) (Amendment Number 2) (Judean and Samaria) (Number 1505)-2002 [hereinafter Order 1505].  This subsequent order made a number of significant changes in Order 1500. First, the definition of “detainee” was modified.  The new definition was set in section 2:

Detainee—one who has been detained in the context of the war against terrorism in the area, while the circumstances of his detention raise the suspicion that he endangers or may endanger the security of the area, IDF security, or the public security.

Second, the period of detention without judicial review was shortened.  The 18-day period set by Order 1500 was replaced with a 12-day detention period. Third, a detainee could only be prevented from meeting with his lawyer for a period of “four days from his detention.” See Order 1500 4(a).  Furthermore, it provided that if the investigators wished to prevent such a meeting after the four-day detention period, they must act in accordance with section 78C(c) of Order 378.  Thus, the “head of the investigation” may first be appealed to. The head of the investigation, if he is of the opinion that such is necessary for the security of the area or for the benefit of the investigation, he may, in a written decision, order that the detainee be prevented from meeting with his lawyer for a period of up to 15 days from the day of his detention. After these periods have elapsed, such a meeting may be prevented for an additional 15 days.

7.  Order 1505 was to expire on April 9, 2002.  Its validity was extended until January 4, 2003 in Order: Detention in Time of Warfare (Temporary Order) (Amendment Number 3) (Judea and Samaria) (Number 1512)-2002 [hereinafter Order 1512]. 

Petitioners’ Arguments

8.  Petitioners argued in their original petition that Order 1500 is illegal.  It allows for mass detentions without the individual examination of each case, without clear grounds for detention, and without judicial review.  It unlawfully prevents meetings between a detainee and a lawyer for a period of 18 days, without allowing for judicial review of this decision.  It unlawfully permits detention for a period of 8 days without allowing the detainee's claims to be heard.  Petitioners claim that arrangement is in conflict with the Basic Law: Human Dignity and Liberty.  The petitioners apply these general claims to the specific cases of petitioners 1-3.

9.  We received additional briefs from the petitioners after the issue of Order 1502.  In these briefs, petitioners argued that Order 1500 and Order 1502 are unlawful, as they are in conflict with international humanitarian law and human rights law.  In this regard, the petitioners rely upon the Covenant on Civil and Political Rights-1966 and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949.  The petitioners claim that international law recognizes only two types of detentions: regular “criminal” detention and preventive detention (internment).  According to the petitioners, Order 1500 creates a third type of detention: prolonged mass detention for the purpose of screening the detainees.  This third type is not recognized by international law and is unlawful.  Lawful detention, whether “regular,” “preventive,” or “administrative,” must be based on individual reasons related to a specific person. Order 1500 and Order 1502, petitioners argue, allow for collective detention.  In summarizing their arguments, the petitioners note that “Order 1500 severely violates fundamental basic human rights.  It allows for arbitrary detention, precludes judicial review over decisions regarding detention and isolates those detained under the order from the outside world for a prolonged period of time.” 

10.  In additional oral arguments which were heard after the issue of Order 1505 on May 5, 2002, petitioners asserted that their claims apply to Order 1505 as well. They claim that the three orders unlawfully violate freedom, due process and the principle of proportionality.

The State’s Response

11.  In the state’s original response to the petition, on May 5, 2002, it noted that the Palestinian terrorists had based themselves in population centers.  In carrying out their activities, they did not hesitate to use women and children, sometimes dressed in civilian garb, and often carried concealed explosives on their bodies.  Under these circumstances, it was often impossible to distinguish, in real-time and during combat situations, between members of terrorist organizations and innocent civilians. As such, persons who were found at sites of terrorist activity or combat, under circumstances which raised the suspicion of their involvement in these activities, were detained.  About 7000 persons were so detained between the initiation of the operation and this suit.  As a result, it was decided that the standard detention laws—which are concerned with policing activities, and not with combat situations—did not provide a suitable framework for the need to detain a large number of persons whose identities were often unknown. Respondents added that many of the detainees were released, and, as of May 5, 2002—the date the response was submitted—about 1,600 persons remained in detention. 

12.  Regarding Order 1500, the state asserted in its response that due to the large number of detainees and limited resources, the initial process of investigation and screening under Order 1500 could last up to 18 days.  Occasionally, the process could last for over 18 days.  Order 1502 was issued to provide a legal framework for this situation. Respondents further claimed that Order 1500, as well as Order 1502, accord with the international laws of warfare and detention, specifically article 43 of the Hague Convention Regarding the Laws and Customs of War on Land-1907 and the Geneva Convention relative to the Protection of Civilian Persons in Time of War-1949. 

In addition, the state claimed that the temporary prevention of meetings with a lawyer is lawful.  The state argues that while military activities continue—especially while IDF forces find themselves in hostile territory, in an attempt to uproot the terrorist infrastructure—it is unthinkable that their lives should be endangered due to the possibility that messages may be passed from the detention facilities to the outside world. This is especially true when the screening processes are unfinished and it is unclear which of the detainees will remain in detention, whether criminal or administrative, when the screening is concluded.  Finally, the respondents assert that regardless of whether the Basic Law: Human Dignity and Liberty applies to the orders in question,  Order 150, as well as Order 1502, are in accordance with the limitations clause of the Basic Law. See Basic Law: Human Dignity and Liberty, § 8.

13.  On June 11, 2002, in additional briefs, the respondents drew attention to Order 1505, which was issued on April 6, 2002.  This order limited the detention period from 18 to 12 days.  The period during which meetings with a lawyer could be prevented was shortened from 18 days to 4 days.  The respondents assert that these changes became possible due to the easing of military activities in the area.  Nevertheless, the respondents are of the opinion that due to the current state of affairs in the area, such as the war against terrorism—which places an unprecedented and prolonged burden on the security and investigatory authorities—and the large number of detainees being held, which is substantially higher than the amount of persons detained before Operation Defensive Wall, it is practically impossible to be satisfied with the standard detention framework of Order 378.

With regard to the prevention of meetings with a lawyer, the respondents assert that under the current circumstances and considering the amount of persons currently being detained, it is possible to restrict the prevention period to four days. Further, respondents claim that the amendment of Order 1500 does not change the fact that the original text of Order 1500 was also reasonable and proportionate under the circumstances.  The amendment promulgated under Order 1505 only entered the realm of possibility as a result of the decreased number of detainees and changes in the nature of the military activities.  Respondents add that Order 1500 does not to allow for mass detentions in the absence of any individual basis for detention.  They assert that Order 1500 also requires individualized grounds, based on individual circumstances and suspicion.  As such, Order 1500 should not be characterized as a third type of detention, aside from and in addition to criminal and administrative detention.  Moreover, according to the respondents, Order 1500 is not administrative detention.  It is a type of detention intended to allow for initial clarification and criminal investigation.  The respondents analyze the laws of warfare and conclude that Orders 1500, 1502 and 1505 are legal under those laws. 

14.  In the additional oral pleadings which were conducted on July 28, 2002—during which Order 1505 was already effective—the respondents reiterated their claim that Order 1500, as well as Order 1505, do not create a third type of detention.  According to respondents, they provide for a regular form of criminal detention, in accordance with the special circumstances of warfare.

15.  In approaching the task of writing our judgment, it became clear that no order nisi had been issued under this petition.  We asked the parties whether they would be willing to continue as if such an order had been issued. Petitioners, of course, agreed; respondents objected.  Under these circumstances, we issued an order nisi on December 15, 2002, ordering the respondents to submit their final response within 10 days.  The petitioners were given ten additional days to respond to the respondents’ response. We added that the judicial panel would decide whether additional oral pleadings would be necessary. 

16.  After a number of continuances, we received an affidavit in response from respondent no. 1 on January 13, 2002.  In this affidavit, the respondent explained the reason behind the issuance of Order 1512, see supra par. 7. He informed us that terrorist activities persist and the IDF is responding with military operations. For example, between September and the end of December 2002, approximately 1,600 terrorist attacks were carried out.  During this period, 84 citizens and residents were killed.  Over 400 citizens and residents were wounded.  About 2,050 persons suspected of terrorist activity were detained in Judea and Samaria.  Consequently, respondent 1 decided to extend Order 1500—as it had been extended in Order 1505—for an additional period of time in Order: Detention in Time of Warfare (Temporary Order) (Amendment Number 4) (Judea and Samaria) (Number 1518)-2003 [hereinafter Order 1518], after concluding that security reasons demanded such an extension.  The extension is valid until April 5, 2003.

17.  Aside from extending the validity of the amended Order 1500, Order 1518 also makes two significant modifications. First, it specifies that meetings between a detainee and his lawyer will be prevented for a period of “two days from the day of his detention.” See Order 1518, § 3.  As was mentioned, previously, such meetings could be prevented for a maximum of four days. Second, the detainee was given the opportunity to voice his claims “no later than within four days of his detention.” See Order 1518, § 2.  As noted, under Order 1500—and similarly under Orders 1505 and 1512—a detainee could be held for a period of eight days without being given the opportunity to voice his claims before the detaining authority.  Respondent 1 asserted that these amendments had been made after consultation “and not without hesitation.” It was reemphasized that the General Security Service, which is responsible for investigating detainees suspected of terrorist activities, could not have prepared for the dramatic increase in the number of detainees since operation Defensive Wall in March 2002.  Respondent asserted that, even today, the logistical constraints of investigations demand that a detainee not be permitted to meet with his lawyer for a period of forty-eight hours and that there be guidelines regarding the length of the “screening process." He emphasized that these guidelines are reasonable and proportionate.  Respondent noted that the war against terrorism demands professional and specialized skills, and is not akin to regular police investigation.  The process of training General Security Service investigators is exceptionally lengthy.  Consequently, it was practically impossible to prepare for the increase in terror which began in March 2002, and which continues today.  Respondent repeated that merely investing financial resources would not solve this problem.  In conclusion, respondent requested that, if the information offered does not suffice to reject this petition, we hear, ex parte, from the General Security Service itself, a detailed description of the objective constraints which required the issuance of Order 1500.  These restraints also required that the amended order be extended for an additional period.  The respondents assert that Order 1500 cannot be deemed illegal before we hear this classified data.

 

The Issues Raised

 

18.  An examination of this petition indicates that petitioners have raised four issues.  First, petitioners contest the authority to detain.  The petitioners claim that Orders 1500, 1502, 1505, 1512, and 1518 unlawfully create a new type of detention—the orders allow mass detention and free the authorities examining each case individually. Second, petitioners contest the lack of any possibility of judicial intervention.  The petitioners claim that the detention period without possibility of judicial intervention—18 days under Order 1500, and 12 days under Orders 1505, 1512, and 1518—lacks proportion and, as such, is illegal.  Third, petitioners contest the prevention of meetings with lawyers—such meetings can be for a period of 18 days under Order 1500, 4 days under Order 1505, and two days under Order 1518.  Petitioners claim that such prevention lacks proportion and, as such, is illegal. Fourth, petitioners contest the fact that detainees cannot voice their claims before the detaining authority. Petitioners cannot voice their claims for a period of eight days under Order 1500, 1505, and 1512, and for a period of four days under Order 1518.  Petitioners claim that this order is illegal.  We shall deal with each of these claims, beginning with the first.

 

The Authority to Detain for the Purpose of Investigation

 

19.   Detention for the purpose of investigation infringes the liberty of the detainee.  Occasionally, in order to prevent the disruption of investigatory proceedings or to ensure public peace and safety, such detention is unavoidable.  A delicate balance must be struck between the liberty of the individual, who enjoys the presumption of innocence, and between public peace and safety.  Such is the case with regard to the internal balance within the state—between the citizen and his state—and such is the case with regard to the external balance outside the state—between a state that is engaged in war, and between persons detained during that war.  Such is the case with regard to this balance in time of peace, and such is the case with regard to this balance in time of war.  Thus, the general provision of Article 9.1 of the International Covenant on Civil and Political Rights (1966), which provides:

 

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention

 

The prohibition is not against detention, but rather against arbitrary detention.  The various laws which apply to this matter, whether they concern times of peace or times of war, are intended to establish the proper balance by which the detention will no longer be arbitrary.

 

20.  This approach accords with Israeli Law.  Man’s inherent liberty is at the foundation of the Jewish and democratic values of the State of Israel.  “Personal liberty is a primary constitutional right, and from a practical point of view, is a condition for the realization of other fundamental rights." HCJ 6055/95 Tzemach v. Minister of Defense, at 261 (Zamir, J.)  Nevertheless, this is not an absolute right.  It may be restricted.  A person may be detained for investigative purposes—in order to prevent the disruption of an investigation or to prevent a danger to the public presented by the detainee—where the proper balance between the liberty of the individual and public interest justifies the denial of that right.  The balance demands that the detaining authority possess an evidentiary basis sufficient to establish suspicion against the individual detainee.  Such is the case with regard to “regular” criminal detention, whether for investigative purposes or until the end of the proceedings. See sections 13, 21 and 23 of the Criminal Procedure (Enforcement Authorities- Detentions) Law-1996.  Such is the case with regard to administrative detention. See section 2 of the Emergency Powers (Detentions) Law-1979, and HCJ Citrin v. IDF Commander in Judea and Samaria (unreported case); HCJ 1361/91 Masalem v. IDF Commander in Gaza Strip, at 444, 456; HCJ 554/81 Branasa v. GOC Central Command, at 247, 250; HCJ 814/88 Nassrallah v. IDF Commander in the West Bank, at 265, 271; HCJ 7015/0 Ajuri v. IDF Commander in the West Bank, at 352, 371. 

 

Moreover, it must always be kept in mind that detention without the establishment of criminal responsibility should only occur in unique and exceptional cases.  The general rule is one of liberty   Detention is the exception. The general rule is one of freedom.  Confinement is an exception.  See Crim.App. 2316/95 Ganimat v. State of Israel, at 649.  There is no authority to detain arbitrarily.  There is no need, in the context of this petition, to decide to what extent these principles apply to internal Israeli law regarding detention in the area.  It suffices to state that we are convinced that internal Israeli law corresponds to international law in this matter.  Furthermore, the fundamental principles of Israeli administrative law apply to the commander in the area.  See HCJ Jamit Askhan Al-Maalmon v. IDF Commander in Judea and Samaria.  The fundamental principles which are most important to the matter at hand are those regarding the duty of each public authority to act reasonably and proportionately, while properly balancing between individual liberty and public necessity.

 

21.  International law adopts a similar approach concerning occupation in times of war.  On the one hand, the liberty of each resident of occupied territory is, of course, recognized.  On the other hand, international law also recognizes the duty and power of the occupying state, acting through the military commander, to preserve public peace and safety; see Article 43 of the Annex to the Hague Convention Regulations Respecting The Laws and Customs of War on Land-1907 [hereinafter Hague Regulations]. In this framework, the military commander has the authority to promulgate security legislation intended to allow the occupying state to fulfill its function of preserving the peace, protecting the security of the occupying state, and the security of its soldiers.  See Article 64 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter the Fourth Geneva Convention].  Consequently, the military commander has the authority to detain any person suspect of committing criminal offences, and any person he considers harmful to the security of the area.  He may also set regulations concerning detention for investigative purposes—as in the matter at hand—or administrative detention—which is not our interest in this petition.  Vice-President M. Shamgar, in HCJ 102/82 Tzemel v. Minister of Defense, at 369, stated in this regard:

 

Among the authority of a warring party is the power to detain hostile agents who endanger its security due to the nature of their activities… Whoever endangers the security of the forces of the warring party may be imprisoned.

 

True, the Fourth Geneva Convention contains no specific article regarding the authority of the commander to order detentions for investigative purposes.  However, this authority can be derived from the law  in the area and is included in the general authority of the commander of the area to preserve peace and security.  This law may be changed by security legislation under certain circumstances.  Such legislation must reflect the necessary balance between security needs and the liberty of the individual in the territory.  An expression of this delicate balance may be found in Article 27 of the Fourth Geneva Convention:

 

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity…  However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

 

Moreover, Article 78 of the Fourth Geneva Convention provides that residents of the area may, at most, be subjected to interment or assigned residence.  This appears to allow for the possibility of detention for the purpose of investigating an offence against security legislation. We would reach this same conclusion if we were to examine this from the perspective of international human rights law.  International law, of course, recognizes the authority to detain for investigative purposes, and demands that this authority be balanced properly against the liberty of the individual.  Thus, regular criminal detention is acceptable, while arbitrary detention is unacceptable. Orders such as Orders 378 and 1226 were issued with this in mind.

 

22.  The petitioners argued that Order 1500, as well as Orders 1502, 1505, 1512, and 1518, establish a new type of detention, aside from standard criminal detention and administrative detention.  Petitioners assert that his new type of detention allows for detention without cause, and should thus be nullified.   Indeed, we accept that the law which applies to the area recognizes only two types of detention: detention for the purpose of criminal investigation, as in Order 378, and administrative detention, as in Order 1226.  There exists no authority to carry out detentions without “cause for detention."  In Tzemel, Vice-President Shamgar expressed as much after quoting the provisions of Article 78 of the Fourth Geneva Convention:

 

The discussed Article allows for the imprisonment of persons, who, due to their behavior or personal data, must be detained for definitive defense reasons.  As is our custom, we hold that every case of detention must be the result of a decision which weighs the interests and data regarding the person who is being considered for detention.

 

Tzemel at 375. Detentions which are not based upon the suspicion that the detainee endangers, or may be a danger to public peace and security, are arbitrary.  The military commander does not have the authority to order such detentions.  See Prosecutor v. Delalic, Tribunal for the Former Yugoslavia, IT-96-21.  Compare also section 7(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism: “A person suspected of terrorist activities may only be arrested if there are suspicions." With this in mind, we turn to Order 1500.

 

23.  Under Order 1500, an order may be given to hold a detainee in detention .  Order 1500 defines a “detainee” as follows:

 

Detainee—one who has been detained, since March 29, 2002, during warfare in the area and the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, the IDF or the public.

 

A similar provision exists in Order 1505:

 

Detainee—one who has been detained in the area during anti-terrorism activities, while the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, IDF security or the public.

 

From these provisions, we find that under Order 1500 as well as Order 1505—and similarly under Orders 1512 and 1518—detention may only be carried out where there is a “cause for detention."  The cause required is that the circumstances of the detention raise the suspicion that the detainee endangers or may be a danger to security.  Thus, a person should not be detained merely because he has been detained during warfare; a person should not be detained merely because he is located in a house or village wherein other detainees are located.  The circumstances of his detention must be such that they raise the suspicion that he—he individually and no one else—presents a danger to security.  Such a suspicion may be raised because he was detained in an area of warfare while he was actively fighting or carrying out terrorist activities, or because he is suspect of being involved in warfare or terrorism. 

 

Of course, the evidentiary basis for the establishment of this suspicion varies from one matter to another.  When shots are fired at the defense forces from a house, any person located in the house with the ability to shoot may be suspect of endangering security.  This basis may be established against a single person or a group of persons.  However, this does not mean that Orders 1500, 1505, 1512 or 1518 allow for “mass detentions," just as detaining a group of demonstrators for the purpose of investigation, when one of the demonstrators has shot at police officers, does not constitute mass detention.  The only detention authority set in these orders is the authority to detain where there exists an individual cause for detention against a specific detainee.  It is insignificant whether that cause applies to an isolated individual or if it exists with regard to that individual as part of a large group.  The size of the group has no bearing.  Rather, what matters is the existence of circumstances which raise the suspicion that the individual detainee presents a danger to security.  Thus, for example, petitioner 1 was detained, as there is information that he is active in the Popular Front for the Liberation of Palestine, a terrorist organization. He recruited people for the terrorist organization.  Petitioner 2 was detained because he is active in the Tanzim.  Petitioner 3 was detained because he is a member of the Tanzim military.  Thus, an individual cause for detention existed with regard to each of the individual petitioners. 

 

24.  Thus, the amended Order 1500 is included in the category of detention for investigative purposes.  It is intended to prevent the disruption of investigative proceedings due to the flight of a detainee whose circumstances of detention raise the suspicion that he is a danger to security.  The difference between this detention and regular criminal detention lies only in the circumstances under which they are carried out.  Detention on the authority of the amended Order 1500 is carried out under circumstances of warfare, whereas regular criminal detention is carried out in cases controlled by the police.  In both cases, we are dealing with individual detention based on an evidentiary basis that raises individual suspicion against the detainee.  For these reasons, we reject the petitioners’ first claim.

 

Detention Without Judicial Intervention

 

25.  Petitioners’ second claim relates to the detention period.  The claim does not concentrate on the length of the period per se, since the length of the period is determined by the needs of the investigation. The claim focuses on the period between the detention and the first instance of judicial intervention. Under Order 1500, this period lasts 18 days; the petitioners claim that this period is excessive.  Moreover, they claim that there are a number of detainees who have yet to be brought before a judge despite the fact that the 18-day period has passed.  In order to rectify this situation Order 1502 was issued, under which such detainee are to be brought before a judge as soon as possible and no later than 10.5.2002, see supra, para. 12.  The petitioners claim that, under the authority of this latter order, some detainees were held for a period of 42 days without judicial intervention.  The petitioners also assert that Order 1505, under which the detention order may prevent judicial intervention for a period of 12 days, is also illegal, as the period specified there is also excessive.  This period remains valid unders Order 1512 and Order 1518. 

 

26.  Judicial intervention with regard to detention orders is essential.  As Justice I. Zamir correctly noted:

 

Judicial review is the line of defense for liberty, and it must be preserved beyond all else. 

 

HCJ 2320/98 El-Amla v. IDF Commander in Judea and Samaria, at 350.

 

Judicial intervention stands before arbitrariness; it is essential to the principle of rule of law.  See Brogan v. United Kingdom (1988) EHRR 117, 134.  It guarantees the preservation of the delicate balance between individual liberty and public safety, a balance which lies at the base of the laws of detention.  See AMA 10/94 Anon. v. Minister of Defense, at 105.  Internal Israeli law has established clear laws in this regard.  In “regular” criminal detention, the detainee is to be brought before a judge within 24 hours.  See section 29(a) of the Criminal Procedure (Enforcement Powers-Detentions) Law-1996.   In this case, the order is issued by the judge himself.  In “administrative” detention, the detention order is to be brought before the president of the district court within 48 hours.  See section 4 (a) of the Emergency Powers (Detentions) Law-1979.  The decision of district court president is an integral part of the development of the administrative detention order. See AMA 2/86 Anon. v. Minister of Defense, at 515. 

 

Similarly, in detaining an “unlawful combatant," the detainee is to be brought before a justice of the district court within 14 days of the issuance of the imprisonment order by the Chief of Staff.  See section 5 of the Imprisonment of Unlawful Combatants Law-2002.  With regard to the detention of military soldiers, section 237A of the Military Justice Law-1955 provided that the detainee is to be brought before a military justice within 96 hours. We reviewed this provision, and concluded that it was unconstitutional, as it unlawfully infringed upon personal liberty, and was not proportionate. See Tzemach.  Subsequent to our judgment, the law was amended, and it now provides that in detaining a military soldier under the Military Justice Law, the detainee is to be brought before a judge within 48 hours.  What is the law with regard to detentions carried out in the area? 

 

27.  International law does not specify the number of days during which a detainee may be held without judicial intervention.  Instead, it provides a general principle, which is to be applied to the circumstances of each and every case.  This general principle, which pervades international law, is that the question of detention is to be brought promptly before a judge or other official with judiciary authority.  See F. Jacobs and R. White, The European Convention on Human Rights 89 (2^nd ed., 1996).  Thus, for example, Article 9.3 of the Covenant on Civil and Political Rights-1966 provides:

 

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by the law to exercise judicial power.

 

This provision is perceived as part of customary international law.  See N. Rodley, The Treatment of Prisoners Under International Law 340 (2^nd ed., 1999).  A similar provision may be found in the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, which was ratified by the UN General Assembly in 1988 (hereinafter the Principles of Protection from Detention or Imprisonment).  Principle 1.11 provides:

 

A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.

 

According to the interpretation of the UN Human Rights Committee “[D]elays must not exceed a few days."  See Report of the Human Rights Committee, GAOR, 37^th Session, Supplement No. 40 (1982), quoted by Rodley, Id., at 335.  On a similar note, Article 5(3) of the European Convention for the Protection of human Rights and Fundamental Freedoms-1950 provides:

 

Everyone arrested or detained in accordance with the provisions of paragraph 1(C) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.

 

In one of the cases in which the European Court of Human Rights interpreted this provision, Brogan v. United Kingdom, EHRR 117, 134 (1988), it stated:

 

The degree of flexibility attaching to the notion "promptness" is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3.  Whereas promptness is to be assessed in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5(3), that is the point of effectively negating the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.

 

In that case, the British authorities had been holding a number of detainees, who had been detained with regard to terrorist activities in Northern Ireland.  They were released after four days and six hours, without having been brought before a judge.  The European court determined that in so doing, England had violated its duty to bring the detainees before a judge promptly.  A number of additional cases were similarly decided.  See McGoff v. Sweden, 8 EHRR 246 (1984); De Jong v. Netherlands, 8 EHRR 20 (1984); Duinhoff v. Netherlands, 13 EHRR 478 (1984); Koster v. Netherlands, 14 EHRR 196 (1991); Aksoy v. Turkey, 23 EHRR 553 (1986)  See also Human Rights Law and Practice 121-22 (Lester and Pannik eds.,1999).

 

28.  Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter the Fourth Geneva Convention] includes a general provision under which:

 

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

 

The Fourth Geneva Convention does not include provisions which specify set detention periods or occasions for judicial intervention with regard to detention.  It only includes provisions concerning administrative detention (internment).  The first provision, Article 43, which applies to detentions carried out by the occupying state, provides:

 

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.

 

The second provision, Article 78, which applies to detentions carried out in the occupied territory, provides:

 

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay.

 

There are no additional provisions which relate to this matter, or to the issue of judicial intervention into detention which is not administrative.

 

29.  Finally, there is security legislation relating to “regular” criminal detention and administrative detention, in the area.  With regard to “regular” criminal detention, Order 378 provides that a police officer, who has reasonable reason to believe that a crime has been committed, has the authority to issues a detention order for a period of up to 18 days, see section 78(3).  Following the recommendations of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Landau Commission), Order 378 was amended, and the detention period without judicial intervention was reduced to 8 days.  In a petition submitted in this matter, the Court held that “at this time, there is no room for this Court to intervene to reduce the maximum period of detention permitted before bringing persons detained in the territories before a military judge."  HCJ 2307/00 Natsha v. IDF Commander in the West Bank (unreported case case). 

 

With regard to administrative detention in the area, such detentions were initially carried out under the Emergency Defense Regulations, which apply to the area.  Later on, provisions regarding administrative detention were included in the Defense Regulations Order (Judea and Samaria) (Number 378)-1970.  Under these provisions, if a person was detained on the authority of an administrative order, he was to be brought before a judge within 96 hours, see section 87B(a).  These provisions were suspended by Order 1226.  This Order provided that any person who had been administratively detained would be brought before a judge within 8 days.  With the issuance of Order 1500, this was changed, and this provision was substituted by one which provided that an administrative detainee should be brought before a judge within 18 days.  With the issuance of Order 1505, Order 1226 was once again amended, and it provided that if an administrative detention order was issued against a person who had been formerly being detained under Order 1500, his case was to be brought for judicial review within 10 days of his detention. 

 

30.  Against this normative background, which demands prompt judicial review of detention orders, the question again arises whether the arrangement established in Order 1500—under which a person may be detained for a period of 18 days without having been brought before a judge—is legal.  Similarly, is the arrangement established in Order 1505 legal? This arrangement—which was unaffected by Order 1512 or Order 1518—provided that a person may be detained for a period of 12 days without having being brought before a judge.  In answering these questions, the special circumstances of the detention must be taken into account.  “Regular” police detention is not the same as detention carried out “during warfare in the area,” Order 1500, or “during anti-terrorism operations” Order 1505.  It should not be demanded that the initial investigation be performed under conditions of warfare, nor should it be demanded that a judge accompany the fighting forces.  We accept that there is room to postpone the beginning of the investigation, and naturally also the judicial intervention.  These may be postponed until after detainees are taken out of the battlefield to a place where the initial investigation and judicial intervention can be carried out properly.  Thus, the issue at hand rests upon the question: where a detainee is in a detention facility which allows for carrying out the initial investigation, what is the timeframe available to investigators for carrying out the initial investigation without judicial intervention? 

 

31.  In this regard, the respondents claim before us that it was necessary to allow the investigating officials 18 days—and after Order 1505, 12 days—to carry out “initial screening activities, before the detainee’s case is brought before the examination of a judge."  This was due to the large number of persons being investigated, and constraints on the number of professional investigators. In their response, the respondents emphasized that “during the warfare operations, thousands of people were apprehended by the IDF forces, under circumstances which raised the suspicion that they were involved in terrorist activities and warfare.  The object of Order 1500 was to allow the "screening" and identification of unlawful combatants who were involved in terrorist activities.  This activity was necessary due to the fact that the terrorists had been carrying out their activities in Palestinian populations centers, without bearing any symbols that would identify them as members of combating forces and distinguish them from the civilian population, in utter violation of the laws of warfare.” See para. 51 of the response brief from May 15, 2002.  The respondents added that it is pointless to bring detainees before a judge, when they have not yet been identified, and the investigative material against them has not yet undergone the necessary processing.  This initial investigation, performed prior to bringing the detainee before the judge, is difficult and often demands considerable time.  This is due, among other reasons, to “the lack of cooperation on the part of those being investigated and their attempts to hide their identities, their hostility towards the investigating authorities due to nationalistic and ideological views, the inability to predetermine the time and place of the detentions, the fact that most of the investigations are based on confidential intelligence information which cannot be revealed to the person being investigated, and the difficulty of reaching potential witnesses.” See para. 62 of the response brief from June 11, 2002.

 

32.  The respondents thus claim that the investigating authorities must be allowed the time necessary for the completion of the initial investigation.  This will, of course, not exceed a period of 18 days, under Order 1500, or 12 days, under Order 1505, as it was amended in Orders 1512 and 1518.  In this timeframe, all those detainees against whom there is insufficient evidence will be released.  Only those detainees, whose initial investigation has been completed, such that the investigation is ready for judicial examination, will remain in detention.

 

 In our opinion, this approach is in conflict with the fundamentals of both international and Israeli law. This approach is not based on the presumption that investigating authorities should be provided with the minimal time necessary for the completion of the investigation, and that only when such time has passed is there room for judicial review.  The accepted approach is that judicial review is an integral part of the detention process.  Judicial review is not “external” to the detention.  It is an inseparable part of the development of the detention itself.  At the basis of this approach lies a constitutional perspective which considers judicial review of detention proceedings essential for the protection of individual liberty.  Thus, the detainee need not “appeal” his detention before a judge.  Appearing before a judge is an “internal” part of the dentition process.    The judge does not ask himself whether a reasonable police officer would have been permitted to carry out the detention.  The judge asks himself whether, in his opinion, there are sufficient investigative materials to support the continuation of the detention.

 

Indeed, the laws regarding detention for investigative purposes focus mainly on judicial decisions.  In a “natural” state of affairs, the initial detention is performed on the authority of a judicial order.  See H. Zandberg, Interpretation of the Detentions Law 148 (2001). Of course, this state of affairs does not apply to the circumstances at hand.  It is natural that the initial detention not be carried out on the authority of a judicial order.  It is natural that the beginning of the initial investigation in the facility be performed within the context of the amended Order 1500.  Judicial review will naturally come later.  Even so, everything possible should be done to ensure prompt judicial review.  Indeed, the laws of detention for investigative purposes are primarily laws which guide the judge as to under what circumstances he should allow the detention of a person and under what circumstances he should order the detainee’s release.  Judicial detention is the norm, while detention by one who is not a judge is the exception.  This exception applies to the matter at hand, since naturally, the initial detention is done without a judicial order.  Nevertheless, everything possible should be done to rapidly pass the investigation over to the regular track, placing the detention in the hands of a judge and not an investigator.  Indeed, the authority to detain as set by Order 1500, as well as the detention authority under Orders 1505, 1512, and 1518, is not unique.  This detention authority is part of the regular policing authority, see para. 24. Otherwise it could not be conferred upon an authorized officer.  This nature of the detention authority affects its implementation.  Like every detention authority, it must be passed over to the regular track of judicial intervention as quickly as possible.

 

33.  Of course, such judicial intervention takes the circumstances of the case into account.  In evaluating the detention for investigative purposes, the judge does not ask himself whether there exists prima facie evidence of the detainee’s guilt.  That is not the standard which needs to be tested.  At this primary stage, there must be reasonable suspicion that the detainee committed a security crime and reasonable reason to presume that his release will disturb security or the investigation.  Regarding this reasonable suspicion, Justice M. Cheshin stated:  

 

"Reasonable suspicion" will exist even if it is not supported by "prima facie evidence for proving guilt," where there is evidence which connects the suspect to the crime at hand to a reasonable extent that justifies, in the balancing of the interests on each side, allowing the police the opportunity to continue and complete the investigation. 

 

VCA 6350/97 Rosenstien v. State of Israel (unreported case); VCA 157/02 Tzinman  v. State of Israel (unreported case).

 

Indeed, the judge may often learn of the existence of reasonable suspicion from the circumstances of the detention themselves, which raise the suspicion that the individual detainee presents a danger to the security of the area, see the definition of detainee in Orders 1500 and 1505.  The judge will review the circumstances and examine whether they raise reasonable suspicion that the crime has been committed.  He will, of course, consider additional materials submitted to him.  He will inquire into the intended course of investigation and the difficulties of the investigation—whether they be the lack of manpower or difficulties in the investigation itself—in order to be convinced that the investigators are truly in need of additional time for their investigation.  All these will ensure that the decision regarding the continuation of the detention, even if it is only based upon initial investigative materials, will not be made by the investigating authority, but rather by a judicial official.  This is the object which lays at the base of both the international and Israeli regulation of detention for investigative purposes.

 

 It is possible, that in the end, the judge will decide to allow the continuation of the detention, as would an authorized officer.  This is irrelevant, since the judge’s intervention is intended to guarantee that only the proper considerations be taken into account, and that the entire matter be examined from a judicial perspective.  This is the minimum required by both the international and Israeli legal frameworks.  President Shamgar, in HCJ 253/88 Sajadia v. Minister of Defense, at 819-820, expressed the same in reference to judicial review over administrative detention, which also applies to the matter at hand:

 

It would be proper for the authorities to act effectively to reduce the period of time between the detention and the submission of the appeal, and the judicial review. 

 

Of course, this does not mean that the judicial review should be superficial.  On the contrary, “it is highly significant that a judge thoroughly examine the material, and ensure that every piece of evidence connected to the matter at hand be submitted to him. Judges should never allow quantity to affect either quality or the extent of the judicial examination."  President Shamgar in Sajadia, at 820.  In exercising his discretion, in each and every case, the judge will balance security needs, on the one hand, and individual liberty, on the other.  He will keep in mind President Shamgar’s words in Sajadia, at 821, which were said with reference to administrative detention, but apply to our case as well:

 

Depriving one of his liberty, without the decision of a judicial authority, is a severe step, which the law only allows for in circumstances which demand that such be done for overwhelming reasons of security.  Proper discretion, which must be exercised in issuing the order, must relate to the question of whether each concrete decision regarding detention reflects the proper balance between security needs—which have no other reasonable solution—and the fundamental  tendency to respect man’s liberty. 

 

34.  With this in mind, we are of the opinion that detention periods of 18 days, under Order 1500, and 12 days, under Orders 1505, 1512 and 1518, exceed appropriate limits.  This detention period was intended to allow for initial investigation.   However, that is not its proper function.  According to the normative framework, soon after the authorized officer carries out the initial detention, the case should be transferred to the track of judicial intervention.  The case should not wait for the completion of the initial or other investigation before it is brought before a judge.  The need to complete the initial investigation will be presented before the judge himself, and he will decide whether there exists reasonable suspicion of the detainee’s involvement to justify the continuation of his detention.  Thus, Order 1500, as well as Orders 1505, 1512, and 1518, unlawfully infringes upon the judge’s authority, thus infringing upon the detainee’s liberty, which the international and Israeli legal frameworks are intended to protect.

 

35.  How can this problem be resolved?  We doubt that it would be suitable to substitute the periods of detention without judicial intervention set in Order 1500 and the amended Order 1505 with a shorter predetermined detention period.  As we have seen, everything rests upon the changing circumstances, which are not always foreseeable.  It seems, that due to the unique circumstances before us, the approach adopted by international law, which avoids prescribing set periods and instead requires that a judge be approached promptly, is justified.  In any case, this is a matter for the respondents and not for us.  Of course, presumably, this means that it will be necessary to substantially enlarge the staff of judges who will deal with detention.  It was not argued before us that there is a lack of such judges.  In any case, even if the claim had been raised before us, we would have rejected it and quoted President Shamgar’s words in Sajadia, at 821:

 

What are the practical implications of what has been said?  If there are a large number of detainees, it will be necessary to increase the number of judges. Difficulty in organizing such an arrangement, which will increase the number of judges who are called to service in order that a detainee’s appeal be heard promptly and effectively, cannot justify the length of the period during which the detainee is held before his case has been judicially reviewed.  The current emergency conditions undoubtedly demanded large-scale deployment of forces to deal with the riots occurring in Judea, Samaria and the Gaza Strip, and the matter at hand—the establishment of a special facility in Kziot—is an example of this deployment of forces.  However, by the same standards, effort and resources must be invested into the protection of the detainees’ rights, and the scope of judicial review should be broadened.  If the large number of appeals so demands, ten or more judges may be called upon to simultaneously review the cases, and not only the smaller number of judges who are currently treating these matters.  Such is the case—aside from the differences which stem from the nature of the matter—with regard to prosecutors as well.  The number of prosecutors may also be increased, due to the need to hasten the appeal proceedings and the preparations thus involved.

 

Notably, under international law, judicial intervention may be carried out by a judge or by any other public officer authorized by law to exercise judicial power.  This public officer must be independent of the investigators and prosecutors.  He must be free of any bias.  He must be authorized to order the release of the detainee.  See Ireland v. United Kingdom, 2 EHRR 25 (1978); Schiesser v. Switzerland, 2 EHRR 417 (1979).

 

36.  Thus, we hold the 18-day detention period without judicial oversight under Order 1500, and the 12-day detention period without judicial oversight under Orders 1505, 1512, and 1518, to be null and void.  They will be substituted by a different period, to be set by the respondents.  To this end, the respondents should be allowed to consider the matter.  Therefore, we hold that this declaration of nullification will be effective six months from the date at which this judgment is given.  Compare Tzemach, at 284.  We have considered respondents’ request to present us with classified information.  We are of the opinion that such is neither appropriate nor desirable.  We hope that the half-year suspension will allow for the reorganization required by both international and internal law. 

 

Preventing Meetings with a Lawyer

 

37.  Order 378 distinguishes between a “regular” criminal detainee and a detainee suspect of committing a crime set out in security legislation, with regard to the issue of meeting with a lawyer.  In the case of the former, the detainee is allowed to meet and consult with his lawyer, see section 78B(a).  The meeting may only be prevented if the detainee is currently under investigation or subject to other activities connected to the investigation, and even then the delay is only for “a number of hours.” See section 78B(d).  The prevention may be extended for reasons security for up to 96 hours from the time of detention.  This is not so in the latter case, of one suspected of a security crime.  In this case, the head of the investigation may order that the detainee be prohibited from meeting with a lawyer for a period of 15 days from the day of his detention, if the head of the investigation is of the opinion that such is necessary for the security of the area or for the benefit of the investigation. See section 78C(c).  An approving authority may order that the detainee not be allowed to meet with a lawyer for an additional 15 days, if it is convinced that such is necessary for the security of the area or the benefit of the investigation. 

 

38.  Order 1500 altered the arrangement set out in Order 378.  Section 3 of Order 1500 provides:

 

1. Despite that which is stated in sections 78(b) and 78(c) of the Defense Regulations Order, a detainee shall not meet with a lawyer during the detention period.
2. At the end of the detention period, a meeting between a detainee and a lawyer shall only be prevented on the order of an approving authority, in accordance with section 78C(c)(2) of the Defense Regulations Order.

 

Thus, Order 1500 substituted the 15-day detention period set by Order 378, during which a detainee was prevented from meeting with a lawyer, with an 18-day prevention period.  After these 18 days, we return to Order 378, and an approving authority may order that the detainee not be allowed to meet with a lawyer for a period of up to 15 days.

 

39.  Order 1505 modified this arrangement.  It included two new provisions. First, the original period of preventing the meeting with a lawyer was shortened to four days, see section 4 (a). Second, at the end of those four days, the head of the investigation may order that the detainee not be allowed to meet with his lawyer for an additional period of up to 15 days, if the head of the investigation is of the opinion that such is necessary for the security of the area or the benefit of the investigation.  Afterwards, returning to the regular track, an approving authority may order that the detainee not be allowed to meet with a lawyer for an additional period of up to 15 days.  Thus, the arrangement set in Order 1500, which allowed for the prevention of a meeting between a detainee and a lawyer for a period of 33 days inclusive—18 days on the authority of the Order itself and an additional 15 days on the authority of the decision of an approving authority—was substituted by a new arrangement which allowed for the prevention of a meeting between a detainee and a lawyer for a period of 34 days inclusive—4 days on the authority of the Order itself, 15 days on the authority of the decision of the head of the investigation and an additional 15 days on the authority of the decision of an approving authority. 

 

40.  Another change occurred in this regard with the issue of Order 1518, which further reduced the initial period, during which a meeting with a lawyer could be prevented, to two days, see section 3.  Thus, the period for preventing a meeting, which had formerly been 34 days under Order 1505—4 days on the authority of the Order itself, 15 days on the authority of the decision of the head of the investigation and an additional 15 days on the authority of the decision of an approving authority, was now 32 days.

 

41.   Are the arrangements set out in Orders 1500, 1505 or 1518 in accord with international law?  Upon inspecting international law, one finds that the International Covenant on Civil and Political Rights-1966 does not include an explicit provision referring to this matter.  The provision which most closely relates to this matter may be found in Article 14.3 of the Covenant, which applies to any person who has been criminally charged.  It provides, in this regard, that the accused must be guaranteed a facility in which he can prepare his defense with an attorney, see sub-section (b), and that in court, he will be defended by an attorney, sub-section (d).  A more explicit provision may be found in the Principles of Protection from Detention or Imprisonment.  Principle 18.1 provides that:

 

A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.

 

This principle has an exception which is significant to the matter at hand.  Under Principle 18.3:

 

The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

 

42.  The Fourth Geneva Convention does not include any explicit provision regarding meetings with a lawyer.  There is, of course, the general provision in Article 27 of the Convention, quoted above in para. 28, which protects the dignity and liberty of the residents of the territory, but which, at the same time, provides that the hostile state may take necessary security measures.  Aside from this general provision, the provision most closely related to this matter may be found in Article 113 of the Convention:

 

The Detaining Powers shall provide all reasonable facilities for the transmission, through the Protecting Power or the Central Agency provided in Article 140, or as otherwise required, of wills, powers of attorney, letters of authority, or any other documents intended for internees or dispatched by them.

 

In all cases the Detaining Powers shall facilitate the execution and authentication in due legal form of such documents on behalf of internees, in particular by allowing them to consult a lawyer.

 

This right is subject to security arrangements.   Pictet expressed this in noting:

 

It was important, however, that these facilities for the transmission of documents should not serve as a pretext for the giving of information for subversive purposes; hence the wording "all reasonable facilities," which enables suspicious correspondence to be eliminated. 

 

See J. S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 471-472. In summarizing this issue, Vice-President Shamgar, in Tzemel, at 377, noted:

 

That which is stated in Article 113 and in the interpretation of the Red Cross International Committee, which was subsequently published, indicates that the defense considerations of the detaining power are legitimate considerations. 

 

Another provision of the Fourth Geneva Convention, Article 72, which relates to a detainee who has been criminally charged, provides:

 

Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses.  They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.

43.  Thus, under both Israeli and international law, the principle that meetings between detainees and attorneys should generally be permitted constitutes the normative framework in which the legality of the arrangement should be examined.  This stems from every person’s right to personal liberty.  See HCJ 3412/91 Sophian v. Commander of the IDF Forces in the Gaza Strip, at 847; HCJ 6302/92 Rumhiah v. Israeli Police Department, at 212. Nevertheless, such rights are not absolute.  In Sophian, at 848, Vice-President M. Elon correctly noted:

The right to meet with a lawyer, like other fundamental rights, is not an absolute right, but rather a relative right, and it should be balanced against other rights and interests.

Thus, a meeting between a detainee and a lawyer may be prevented if significant security considerations justify the prevention of the meeting.  I expressed this in Rumhiah, at 213:

Preventing a meeting between a detainee and his lawyer is a serious injury to the detainee’s right.  Such an injury is tolerable only when it is demanded by security and essential for the benefit of the investigation.  Regarding the benefit of the investigation—which is the respondents’ claim in the matter before us—it is essential to find that allowing the meeting between the detainee and the lawyer will frustrate the investigation.  It was correctly noted stated that “it is insufficient that it would be more comfortable, beneficial or desirable”; HCJ 128/84, at 27.  It must be shown that such is necessary and essential to the investigation.

 

International law does not prescribe set maximum periods during which meetings may be prevented.  These should be inferred from the specific circumstances, according to tests of reasonability and proportionality.  A similar approach has been adopted in the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism.  These Guidelines provide:

 

The imperative of fight against terrorism may nevertheless justify certain restrictions to the right of defence, in particular with regard to the arrangements for access to and contact with counsel. 

 

44. It may be inferred from this that the detainee should not be allowed to meet with his lawyer so long as the warfare continues.  This Court recently stated as much:         

 

It is inconceivable that the respondent should allow meetings with persons during warfare or close to it, when there exists a suspicion that they endanger or may be a danger to the security of the area, the security of the IDF forces, or the security of the lawyers.  This remains the case until conditions develop as to allow for the consideration of the individual circumstances of each and every detainee.

 

HCJ 2901/02 The Center for the Defense of the Individual founded by Dr. Lota Salzbereger v. IDF Commander in the West Bank (unreported case).

 

What is the law where the detainee is already in an organized detention facility, and conditions which allow for the consideration of the individual circumstances of each and every detainee have developed?

 

45.  Our answer is that the standard rule in this situation should be that the fundamental right of meeting with a lawyer should be realized.  However, significant security considerations may prevent this.  Thus, for example, the respondent noted in his response that a meeting with a lawyer may be prevented where there is suspicion that “the lives of the combat forces will be endangered due to opportunities to pass messages out of the facility.” See para. 54 of the response brief from 5.5.2002.  We are in agreement with this.  There is also room to prevent a meeting when it may damage or disrupt the investigation.  It should be emphasized, however, that advancing the investigation is not a sufficient reason to prevent the meeting.  “The focus is on the damage that may be caused to national security if the meeting with the lawyer is not prevented."  HCJ 4965/94 Kahalani v. Minister of Police (unreported case) (Goldberg, J.).  Thus, “it is insufficient that it is comfortable, beneficial or desirable to prevent a meeting with a layer. The expression ‘is required’ indicates that there must be an element of necessity which connects the decision to the reasons it is based upon." HCJ 128/84 Hazan v. Meir, at 27 (Shamgar, P.)  With this in mind, we are of the opinion that there are no flaws in the arrangements set in Orders 1500, 1505, and Order 1518 regarding the prevention of meetings with lawyers.

 

46.  Before concluding this matter, we wish to relate to one of the petitioners’ claims.  The claim is that, by preventing meetings with lawyers on the authority of Order 1500, 1505, or 1518, the detainees remain incommunicado for a period of 18 days, under Order 1500, 4 days, under Order 1505, or two days, under Order 1518.  We reject this claim.  Even if meetings with lawyers are prevented, this does not justify the claim that the detainee is isolated from the outside world.  It is sufficient to note that when the detainees are moved to the detention facility, which occurs within 48 hours of their detention during warfare, they have the right to be visited by the Red Cross, and their families are informed of their whereabouts. At any time, they may appeal to the High Court of Justice in a petition against their detention. See section 15(d)(1) of the Basic Law: The Judiciary.  Not only may the detainee himself appeal to the Court, but his family may also do so. Furthermore, under our approach to the issue of standing, any person or organization interested in the fate of the detainee may also do so.  Indeed, the petition before was submitted by, among others, seven associations or organizations that deal with human rights.  Their claims were heard and the issue of standing was not even raised in these proceedings.  Under these circumstances, it cannot be said that those detained on the authority of Order 1500, a fortiori those detained on the authority of Order 1505, and certainly not those who were detained on the authority of Order 1518, are in a state of isolation from the outside world. 

 

Detention Without Investigation

 

47. Section 2(b) of Order 1500 provides:

 

The detainee shall be given the opportunity to voice his claims within eight days of his detention.

 

This provision remains valid under Order 1505.  Section 2 of Order 1518 shortens this period of detention without investigation to four days.  The petitioners claim that the provision itself is illegal.  They assert that it constitutes an excessive violation of the detainee's liberty.  It undermines the right to liberty and denies due process.  It may lead to mistaken or arbitrary detrainments. Conversely, the respondents claim that the significance of the provision is that it compels the investigators to question the detainee within eight days, in order to make an initial investigation of his identity and hear his account of his detention.  This period cannot be shortened due to the large number of detainees, on the one hand, and the constraints limiting the number of professional investigators, on the other.  It was noted before us that the investigating officials have limited capabilities, and they are not equipped to deal with such a large number of detainees in a more compact schedule. 

 

48.  We accept that investigations should not be performed during warfare or during military operations, nor can the detainee’s account be heard during this time.  The investigation can only begin when the detainee, against whom there stands an individual cause for detention, is brought to a detention facility which allows for investigation.  Moreover, we also accept that at a location which holds large number of detainees, some time may pass before it is possible to organize for initial investigations.  This, of course, must be done promptly.  It is especially important to begin the investigation rapidly at this initial stage, since simple facts such as age, circumstances of detention and identity, which may determine whether the detention should be continued, may become clear at this stage.  Of course, often this initial investigation is insufficient, and the investigation must continue.  All of this must be done promptly. 

 

Respondents are of course aware of this.  Their argument is simple: there is a lack of professional investigators.  Unfortunately, this explanation is unsatisfactory.  Security needs, on the one hand, and the liberty of the individual on the other, all lead to the need to increase the number of investigators.  This is especially true during these difficult times in which we are plagued by terrorism, and even more so when it was expected that the number of detainees would rise due to Operation Defensive Wall.  Regarding the considerations of individual liberty that justify such an increase, Justice Dorner has stated:

 

Fundamental rights essentially have a social price. The preservation of man’s fundamental rights is not only the concern of the individual, but of all of society, and it shapes society’s image. 

 

Ganimat, at 645. In a similar spirit, Justice Zamir, in Tzemach, at 281, has noted:

 

A society is measured, among other things, by the relative weight it attributes to personal liberty.  This weight must express itself not only in pleasant remarks and legal literature, but also in the budget.  The protection of human rights often has its price.  Society must be ready to pay a price to protect human rights. 

 

Such is the case in the matter at hand.  A society which desires both security and individual liberty must pay the price.  The mere lack of investigators cannot justify neglecting to investigate.  Everything possible should be done to increase the number of investigators.  This will guarantee both security and individual liberty.  Furthermore, the beginning of the investigation is also affected by our holding that the arrangements according to which a detainee may be held for 18 days without being brought before a judge, under Order 1500, and for 12 days, under Order 1505, 1512, and 1518, to be illegal.  Now, the detainee’s own appeal to a judge will require that the investigation be carried out sooner.

 

49.  We conclude, from this, that the provisions of section 2(b) of Order 1500 and section 2 of Order 1518 are invalid.  The respondents must decide on a substitute arrangement.  For this reason, we suspend our declaration that section 2(b) of Order 1500 and section 2 of Order 1518 are void. It will become valid only after six months pass from the date of this judgment.  Compare Tzemach, at 284.  Here too, we considered the respondents’ request to present us with confidential information, see supra para. 36, and here too we are of the opinion that such is neither appropriate nor desirable.  This suspension period should be utilized for reorganization, which should be in accord with international and Israeli law. 

 

The petition is denied in part, with regard to the authority to detain provided in Orders 1500, 1505, 1512 and 1518, and with regard to the prevention of meetings between detainees and lawyers. The petition is granted in part in the sense that we declare the provision of section 2(a) of Order 1500, as later amended by Order 1505 and extended by Orders 1512 and 1518, the provision of section 2(b) of Order 1500 and the provision of section 2 of Order 1518 to be null and void.  This declaration of nullification will become effective six months after the day on which this judgment is given.

 

Justice D. Dorner

I agree.

 

Justice I. Englard

I agree .

 

 

Decided as stated in the opinion of President A.  Barak.

5.2.2003

 

 

 

 

 

 

 

 

 

 

H.C.J. 7957/04

 

 

Petitioners:                               1.       Zaharan Yunis Muhammad Mara'abe

2. Morad Ahmed Muhammad Ahmed
3. Muhammad Jamil Mas'ud Shuahani
4. Adnan Abd el Rahman Daud Udah
5. Abd el Rahim Ismail Daud Udah
6. Bassem Salah Abd el Rahman Udah
7. The Association for Civil Rights in Israel

 

v.

 

Respondents:                                      1.         The Prime Minister of Israel

2.The Minister of Defense

3.The Commander of IDF Forces in the Judea and Samaria Area

4.The Separation Fence Authority

5.The Alfei Menashe Local Council

 

 

The Supreme Court Sitting as the High Court of Justice

 

[September 12 2004; March 31 2005; June 21 2005]

 

Before President A. Barak, Vice President M. Cheshin, Justice D. Beinisch, Justice A. Procaccia, Justice E. Levy, Justice A. Grunis, Justice M. Naor, Justice S. Joubran  & Justice E. Hayut

 

Petition for an Order Nisi

For Petitioners:                        Michael Sfard

                                               Dan Yakir

                                               Limor Yehuda

For Respondents no. 1-4:        Anar Helman

                                                Avi Licht

For Respondent 5:                  Baruch Heikin

 

 

 

JUDGMENT

 

President A. Barak:

 

Alfei Menashe is an Israeli town in the Samaria area. It was established approximately four kilometers beyond the Green Line.  Pursuant the military commander's orders, a separation fence was built, surrounding the town from all sides, and leaving a passage containing a road connecting the town to Israel.  A number of Palestinian villages are included within the fence's perimeter.  The separation fence cuts them off from the remaining parts of the Judea and Samaria area.  An enclave of Palestinian villages on the "Israeli" side of the fence has been created.  Petitioners are residents of the villages.  They contend that the separation fence is not legal.  This contention of theirs is based upon the judgment in The Beit Sourik Case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) P.D. 807).  The petition also relies upon the Advisory Opinion of the International Court of Justice at the Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 IL M 1009 (2004)).  Is the separation fence legal? That is the question before us.

 

A.        The Background and the Petition

 

            1.         Terrorism and the Response to It

 

1.         In September 2000 the second intifada broke out.  A mighty attack of acts of terrorism landed upon Israel, and upon Israelis in the Judea, Samaria, and Gaza Strip areas (hereinafter – the area).  Most of the terrorist attacks were directed toward civilians.  They struck at men and at women; at elderly and at infant.  Entire families lost their loved ones.  The attacks were designed to take human life.  They were designed to sow fear and panic.  They were meant to obstruct the daily life of the citizens of Israel.  Terrorism has turned into a strategic threat.  Terrorist attacks are committed inside of Israel and in the area.  They occur everywhere, including public transportation, shopping centers and markets, coffee houses, and inside of houses and communities.  The main targets of the attacks are the downtown areas of Israel's cities.  Attacks are also directed at the Israeli communities in the area, and at transportation routes.  Terrorist organizations use a variety of means.  These include suicide attacks ("guided human bombs"), car bombs, explosive charges, throwing of Molotov cocktails and hand grenades, shooting attacks, mortar fire, and rocket fire.  A number of attempts at attacking strategic targets ("mega-terrorism") have failed.  Thus, for example, the intent to topple one of the Azrieli towers in Tel Aviv using a car bomb in the parking lot was frustrated (April 2002).  Another attempt which failed was the attempt to detonate a truck in the gas tank farm at Pi Glilot (May 2003).  Since the onset of these terrorist acts, up until mid July 2005, almost one thousand attacks have been carried out within Israel.  In Judea and Samaria, 9000 attacks have been carried out.  Thousands of attacks have been carried out in the Gaza Strip.  More than one thousand Israelis have lost their lives, approximately 200 of them in the Judea and Samaria area.  Many of the injured have become severely handicapped.  On the Palestinian side as well, the armed conflict has caused many deaths and injuries.  We are flooded with bereavement and pain.

 

2.         Israel took a series of steps to defend the lives of her residents.  Military operations were carried out against terrorist organizations.  These operations were intended to defeat the Palestinian terrorist infrastructure and prevent reoccurrence of terrorist acts (see HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57(2) P.D. 349, hereinafter – Marab; HCJ 3278/02 The Center for Defense of the Individual v. The Commander of IDF Forces in the West Bank Area, 57(1) P.D. 385.  These steps did not provide a sufficient answer to the immediate need to halt the severe terrorist attacks.  Innocent people continued to pay with life and limb.  I discussed this in The Beit Sourik Case:

 

"These terrorist acts committed by the Palestinian side have led Israel to take security steps of various levels of severity. Thus, the government, for example, decided upon various military operations, such as operation “Defensive Wall” (March 2002) and operation “Determined Path” (June 2002). The objective of these military actions was to defeat the Palestinian terrorist infrastructure and to prevent reoccurrence of terror attacks . . .  These combat operations – which are not regular police operations, rather bear all the characteristics of armed conflict – did not provide a sufficient answer to the immediate need to stop the severe acts of terrorism. The Committee of Ministers on National Security considered a series of steps intended to prevent additional acts of terrorism and to deter potential terrorists from committing such acts . . . Despite all these measures, the terror did not come to an end.  The attacks did not cease. Innocent people paid with both life and limb. This is the background behind the decision to construct the separation fence (Id., at p. 815).

 

Against this background, the idea of erecting a separation fence in the Judea and Samaria area, which would make it difficult for terrorists to strike at Israelis and ease the security forces' struggle against the terrorists, was formulated.

 

3.         The construction of the separation fence was approved by the government on June 23 2002.  At the same time, phase A of the fence was approved.  Its length is 116 km.  It begins in the area of the Salem village, adjacent to the Megiddo junction, and continues to the Trans-Samaria Highway adjacent to the Elkana community.  An additional obstacle in the Jerusalem area (approximately 22 km long) was also approved.  These were intended to prevent terrorist infiltration into the north and center of the country, and into the Jerusalem area.  The government decision stated, inter alia,

 

"(3) In the framework of phase A – to approve construction of security fences and obstacles in the 'seamline area' and in the surroundings of Jerusalem, in order to decrease infiltrations by terrorists from the Judea and Samaria areas for the purpose of attacks in Israel.    

 

(4) The fence, like the other obstacles, is a security means.  Its construction does not reflect a political border, or any other border.

 

(5) . . .

 

(6) The exact and final route of the fence shall be determined by the Prime Minister and the Minister of Defense . . . the final route shall be presented to the Committee of Ministers on National Security or to the government."

 

After that (December 2002) the construction of phase B of the fence was approved.  That phase began at Salem village, heading east until the Jordan river (approximately 60 km).  This phase also includes an offshoot starting at Mt. Avner (adjacent to the village of Al Mutilla) in the southern Gilboa, heading south toward Thaisar village.  After about one year (on October 1 2003) the government decided to construct phases C and D of the fence.  Phase C includes the fence between Elkana and the Camp Ofer military base, a fence east of the Ben Gurion airport and north of planned highway 45, and a fence protecting Israeli communities in Samaria (including Ariel, Emanuel, Kedumim, Karnei Shomron).  Phase D includes the area from the Etzion Bloc southward to the southern Hebron area.  The government decision stated, inter alia:

 

"(2) The obstacle built pursuant to this decision, like its other segments in the 'seamline area', is a security means for preventing terrorist attacks, and does not reflect a political border, or any other border.

 

(3) Local alterations of the obstacle route or of construction necessary for the overall planning of the route, shall be brought for approval to the Minister of Defense and the Prime Minister.

 

(4) . . .

 

(5) . . .

 

(6) During the detailed planning, all efforts shall be made to minimize, to the extent possible, disturbance liable to be caused to the daily lives of Palestinians as a result of the construction of the obstacle." 

 

The separation fence discussed in the petition before us is part of phase A of fence construction.  The separation fence discussed in The Beit Sourik Case is part of phase C of fence construction.  The length of the entire fence, including all four phases, is approximately 763 km.  According to information relayed to us, approximately 242 km of fence have already been erected, and are in operational use.  28 km of it are built as a wall (11%).  Approximately 157 km are currently being built, 140 km of which are fence and approximately 17 km are wall (12%).  The building of 364 km of the separation fence has not yet been commenced, of which 361 km are fence, and 3 km are wall.

 

4.         The separation fence is an obstacle built of a number of components.  "In its center stands a 'smart' fence. The purpose of the fence is to alert the forces deployed along it of any attempt to cross it. On the fence’s external side lies an anti-vehicle obstacle, composed of a trench or another means, intended to prevent vehicles from breaking through the fence by slamming up against it. There is an additional delaying fence. Adjacent to the fence, a service road is paved. On the internal side of the electronic fence, there are a number of roads: a trace road (a strip of sand smoothed to detect footprints of those who pass the fence), a patrol road, and a road for armored vehicles, as well as an additional fence. The average width of the obstacle, in its optimal form, is 50–70 meters.  Due to various constraints at certain points along the route, a narrower obstacle, which includes only part of the components supporting the electronic fence, will be constructed.  In certain cases the obstacle can reach a width of 100 meters, due to topographical conditions. . . Various means to help prevent infiltration will be erected along the route of the obstacle. The IDF and the border police will patrol the separation fence, and will be called to locations of infiltration, in order to frustrate the infiltration and to pursue those who succeed in crossing the security fence" (The Beit Sourik Case, at p. 818).

 

5.         Parts of the separation fence are erected on private land.  Under such circumstances, there is an administrative process of issuing an order of seizure and payment of compensation for the use of the land.  The seizure order can be appealed to the military commander.  If the appeal is rejected, the landowner is given a seven day period to petition the High Court of Justice.  Since issuance of the orders, more than eighty petitions have been submitted to this Court.  Approximately half were withdrawn in light of compromise between the parties.  The other half are being heard before us.  One of those petitions is the petition before us.

 

6.         Since the decision to construct the fence, a constant and continual process of analysis and improvement has been taking place.  This process was intensified, of course, after the judgment in the Beit Sourik Case (given on June 30 2004).  As a result, some segments of the existing route were altered.  The planning of phases not yet constructed was changed.  When necessary, a government decision was made, ordering an alteration of the route of the fence.  Indeed, on February 20 2005, the government decided to alter the fence route.  The decision stated that it came about "after examining the implications of the High Court of Justice's ruling regarding continued work to construct the fence."  The decision further stated:

 

"(a) The government sees importance in the continued construction of the security fence, as a means whose efficacy - in defending the State of Israel and its residents, and in preventing the negative influence a terrorist attack is liable to have on diplomatic moves - has been proven, while ensuring minimization, to the extent possible, of the affect on the daily lives of the Palestinians, according to the standards outlined in the ruling of the High Court of Justice."

 

This decision included additional segments of fence, whose legal examination had not yet been completed (in the area of Western Samaria, Ma'aleh Edumim, and the Judean Desert).  As a result of the government decision, special teams were established to examine the crossings policy and the permit regime.  According to the data relayed to us, part of the separation fence is inside of Israel or on the Green Line (approximately 150.4 km, which are 19.7% of the route).  The part of the fence which is in the Judea and Samaria area leaves about 432 km2, which are about 7.8% of the area of Judea and Samaria, on the "Israeli" (western) side of the fence.  In this area live 8900 Palestinian residents, who will live under a permit regime; and 19,000 Palestinian residents in the Etzion Bloc area, where such a regime will not apply, and it will be possible to enter and exit freely, subject to security check, with no need to acquire permits or licenses of any kind.  It is worth noting that this figure includes the Gush Etzion region (about 1.2% of the area of Judea and Samaria), the "fingers of Ariel" (about 2.0% of the area of Judea and Samaria) and Ma'aleh Edumim (approximately 1.2% of the area of Judea and Samaria).  The staff work and the legal examination regarding these areas have not yet been completed.  Nor have Jerusalem's municipal territory or no-man's-land been included in these figures, since they are not in Judea and Samaria. 

 

7.         All territory left on the "Israeli" (western) side of the fence in the framework of phase A – that is to say, the area between the fence and the State of Israel (hereinafter – the seamline area) – were declared a closed military area, pursuant to Territory Closure Declaration no. S/2/03 (seamline area) (Judea and Samaria), 5764-2003 (of October 2 2003), issued by the Commander of IDF Forces in the Judea and Samaria Area (hereinafter – the declaration).  The seamline area in the phase A area is approximately 87 km2, and about 5600 Palestinians and 21,000 Israeli residents live in it.  The declaration forbade entrance and presence in the seamline area, while determining that the rule does not apply to Israelis or people holding permits from the military commander to enter the seamline area and be present in it. The declaration determined, regarding permanent residents, that people whose permanent residence is in the seamline area will be permitted to enter the seamline area and be present in it, subject to the requirement that they hold a written permit from the military commander testifying to the fact that their permanent place of residence is in the seamline area, and subject to the conditions determined in the permit.  The military commander issued a general permit to enter the seamline area, for holders of foreign passports, holders of permits for work in an Israeli community within the seamline area, and for those who have a valid exit permit from the area into Israel.  After about a half a year (May 27 2004), the declaration was amended (Territory Closure Declaration no. S/2/03 (Seamline Area) (Judea and Samaria) (Amendment no. 1), 5764 – 2004).  According to the amended declaration, the rule forbidding entrance and presence in the seamline area does not apply to permanent residents in the seamline area or those with a work permit from the military commander.  A general permit, for entrance into the seamline area and presence in it for any purpose, was granted to residents of the State of Israel.  Palestinians living in the seamline area were issued a "permanent resident card" testifying that they are permanent residents of the seamline area.  The permits make it possible to live in the seamline area and to move from it into the territories of the area, and back.  Palestinians who are not permanent residents of the seamline area must acquire an entry permit.  Such permits are granted for various reasons, including work, trade, agriculture, and education.

 

            2. The Alfei Menashe Enclave

 

The Alfei Menashe enclave – the topic of the petition before us – is part of phase A of the fence.  The decision regarding it was reached on June 23 2002.  The construction of the fence was finished in August 2003.  The fence circumscribes Alfei Menashe (population approximately 5650) and five Palestinian villages (population approximately 1200): Arab a-Ramadin (population approximately 250); Arab Abu-Farda (population approximately 120); Wadi a-Rasha (population approximately 120); Ma'arat a-Daba (population approximately 250), and Hirbet Ras a-Tira (population approximately 400) (see appendix).  The fence which surrounds the enclave from the north is based, on its western side, upon the fence encircling the city of Qalqiliya (population approximately 38,000) from the south.  This part of the fence passes north of highway 55, which is the enclave's connection to Israel.  The northern part of the fence surrounds Alfei Menashe, Abu-Farda, and Arab a-Ramadin.  The Alfei Menashe enclave is unique for two reasons: First, it is based, in many places, upon the separation fence around the city of Qalqiliya and the villages of Habla and Hirbet Ras Atiyeh; second, the separation fence "brings" over to the "Israeli" (western) side not only Alfei Menashe, but also the five Palestinian villages.

 

9.         There is one crossing and three agricultural gates in the fence surrounding the Alfei Menashe enclave, which connect the enclave to the area.  The central connection between the enclave and the area is via "crossing 109", located on the northern side of the fence, on highway 55.  Crossing 109 is close to the access point to the city of Qalqiliya, in the eastern fence surrounding Qalqiliya called DCO Qalqiliya.  This point is not staffed, except for special cases, and it allows free passage between Qalqiliya and the area.  Crossing 109 allows residents of the enclave to pass by foot and car, subject to security check, to the area and the city of Qalqiliya at all hours of the day.  There are three additional gates in the Alfei Menashe enclave fence, two agricultural, through which one can pass by foot or car.  The three gates are the Ras a-Tira gate (on the western side of the enclave, adjacent to the town of Hirbet Ras Atiyeh); the South Qalqiliya gate, and the Habla gate.  At the time the petition was submitted, the three gates were generally opened three times a day for one hour.  Now, the Ras a-Tira gate opens one hour after sunrise and is closed one hour before sunset.  There is no change in the opening hours of the other gates.  The enclave is connected, with territorial integrity, to Israel (with no checkpoint), and the crossing is made via highway 55, which connects Alfei Menashe to Israel.  The road is mainly used by Israelis traveling to and leaving Alfei Menashe and by Palestinians with permits to enter Israel, or traveling within the boundaries of the enclave.

 

            3.         The Petition

 

10.       The petition was submitted on August 31 2004.  (Original) petitioners are residents of the Ras a-Tira village (petitioners no. 1-3) and the Wadi a-Rasha village (petitioners no. 4-6).  These two villages are located southwest of Alfei Menashe.  Along with them petitioned the Association for Civil Rights in Israel (petitioner no. 7).  At a later phase petitioners' counsel submitted a letter (of March 30 2005) written by the five council heads of the villages in the enclave.  The letter is addressed to the Court.  It expresses support for the petition.  It verifies its content.  At the same time, petitioners' counsel informed us that the village council heads had granted him power of attorney to act in the name of the councils, as petitioners in the petition.

 

11.       Petitioners contend that the separation fence is not legal, and should be dismantled.  They argue that the military commander is not authorized to give orders to construct the separation fence.  That claim is based on the Advisory Opinion of the International Court of Justice at the Hague (hereinafter also "ICJ").  Petitioners also contend that the separation fence does not satisfy the standards determined in The Beit Sourik Case.  On this issue, petitioners argue that the fence is disproportionate and discriminatory.  Respondents ask that the petition be rejected due to a number of preliminary arguments (laches (delay), the "public" nature of the petition, and the lack of a prior plea to respondents).  On the merits, respondents argue that the military commander is authorized to erect a separation fence, as ruled in The Beit Sourik Case.  The Advisory Opinion of the International Court of Justice at the Hague makes no difference in this regard, since it was based upon a factual basis different from that established in The Beit Sourik Case.  Respondents also contend that the injury to the Palestinian residents satisfies the standards determined in The Beit Sourik Case.

 

            4.         The Hearing of the Petition

 

12.       The petition was heard soon after being submitted, by President A. Barak, Vice President (emeritus) E. Mazza and Vice President M. Cheshin (on September 12 2004).  The Alfei Menashe local council was joined, at its request, as a respondent in the petition.  Further hearing of the petition was postponed, in order to allow the state to formulate its stance.  We noted that postponement of the petition does not prevent respondents from doing all they can to ease the reality of daily life for petitioners under the existing fence route.  The hearing of the petition continued (on March 31 2005) before President A. Barak, Vice President M. Cheshin and Justice D. Beinisch (who replaced Vice President E. Mazza, who retired).  After that, it was decided (on April 21 2005) that the hearing of the petition would take place together with the hearing of HCJ 1348/05 and HCJ 3290/05 (regarding the separation fence around the city of Ariel), and that the hearing of all three petitions would take place before an expanded panel of nine Justices.  The petition was thus heard before an expanded panel (on June 21 2005).  At the commencement of the hearing, it was stipulated that the court would view the hearing as if an order nisi had been granted.  Petitioners presented arguments regarding the fence's injury to the various areas of life in the villages, and extensively discussed their legal arguments regarding the illegality of the fence.  Respondents expanded upon the authority to build the fence and the steps that had been taken in order to ease the residents' lives.  In addition, Colonel (res.) Dan Tirza (head of the administration dealing with the planning of the obstacle route in the seamline area) appeared before us, and surveyed the fence route and the considerations which the route planners confronted.

 

            5. The Discussion Framework

 

13.       The parties' arguments will be examined in five parts.  In the first part we shall discuss the Supreme Court's caselaw regarding the military commander's authority, according to the law of belligerent occupation, to order the erection of the separation fence.  This caselaw was developed by this Court in scores of judgments it has handed down since the Six Day War.  In the second part we shall discuss the way this law was applied, in concrete implementation, in The Beit Sourik Case.  In the third part, we shall discuss the Advisory Opinion of the International Court of Justice at the Hague.  In the fourth part we shall discuss the Advisory Opinion's effect upon the standards in The Beit Sourik Case, and its ramifications for the normative outline as determined by this Court, and for the way this outline was implemented in The Beit Sourik Case.  Finally, we shall examine whether the separation fence at the Alfei Menashe enclave satisfies the tests of the law.

 

B.        The Normative Outline in the Supreme Court's Caselaw

 

            1.         Belligerent Occupation

 

14.       The Judea and Samaria areas are held by the State of Israel in belligerent occupation.  The long arm of the state in the area is the military commander.  He is not the sovereign in the territory held in belligerent occupation (see The Beit Sourik Case, at p. 832).  His power is granted him by public international law regarding belligerent occupation.  The legal meaning of this view is twofold: first, Israeli law does not apply in these areas.  They have not been "annexed" to Israel. Second, the legal regime which applies in these areas is determined by public international law regarding belligerent occupation (see HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (yet unpublished, paragraph 3 of the opinion of the Court; hereinafter – The Gaza Coast Regional Council Case).  In the center of this public international law stand the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations).  These regulations are a reflection of customary international law.  The law of belligerent occupation is also laid out in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  The State of Israel has declared that it practices the humanitarian parts of this convention.  In light of that declaration on the part of the government of Israel, we see no need to reexamine the government's position.  We are aware that the Advisory Opinion of the International Court of Justice determined that The Fourth Geneva Convention applies in the Judea and Samaria area, and that its application is not conditional upon the willingness of the State of Israel to uphold its provisions.  As mentioned, seeing as the government of Israel accepts that the humanitarian aspects of The Fourth Geneva Convention apply in the area, we are not of the opinion that we must take a stand on that issue in the petition before us.  In addition to those two sources of international law, there is a third source of law which applies to the State of Israel's belligerent occupation.  That third source is the basic principles of Israeli administrative law, which is law regarding the use of a public official's governing power.  These principles include, inter alia, rules of substantive and procedural fairness, the duty to act reasonably, and rules of proportionality. "Indeed, every Israeli soldier carries in his pack the rules of customary public international law regarding the law of war, and the fundamental rules of Israeli administrative law" (HCJ 393/82 Jami'at Ascan el-Malmun el-Mahdudeh el-Masauliyeh, Communal Society Registered at the Judea and Samaria Area Headquarters v. The Commander of IDF Forces in the Judea and Samaria Area, 37(4) P.D. 785, 810; hereinafter The Jami'at Ascan Case).

 

            2. The Military Commander's Authority to Erect a Security Fence

 

15.       Is the military commander authorized, according to the law of belligerent occupation, to order the construction of a separation fence in the Judea and Samaria area?  In The Beit Sourik Case our answer was that the military commander is not authorized to order the construction of a separation fence, if the reason behind the fence is a political goal of "annexing" territories of the area to the State of Israel and to determine Israel's political border.  The military commander is authorized to order the construction of the separation fence if the reason behind its construction is a security and military one.  Thus we wrote in The Beit Sourik Case:

 

"the military commander is not authorized to order the construction of the separation fence if his reasons are political. The separation fence cannot be motivated by a desire to “annex” territories in the area to the state of Israel. The purpose of the separation fence cannot be to draw a political border. . . . the authority of the military commander is inherently temporary, as belligerent occupation is inherently temporary.  Permanent arrangements are not the affair of the military commander.  True, the belligerent occupation of the area has gone on for many years. This fact affects the scope of the military commander’s authority.         . . . The passage of time, however, cannot expand the authority of the military commander and allow him to take into account considerations beyond the proper administration of the area under belligerent occupation" (Id., at pp. 829-830). 

 

16.       It is sometimes necessary, in order to erect a separation fence, to take possession of land belonging to Palestinian residents.  Is the military commander authorized to do so?  The answer is that if it is necessary for military needs, the military commander is authorized to do so. So we ruled in The Beit Sourik Case:

 

". . . the military commander is authorized – by the international law applicable to an area under belligerent occupation – to take possession of land, if that is necessary for the needs of the army. . . . He must, of course, provide compensation for his use of the land. Of course, . . . the military commander must also consider the needs of the local population. Assuming that this condition is met, there is no doubt that the military commander is authorized to take possession of land in areas under his control. The construction of the separation fence falls within this framework, on the condition that it is necessary from a military standpoint.  To the extent that the fence is a military necessity, infringement of private property rights cannot, in and of itself, negate the authority to build it. . . . Indeed, the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers (Id., at p. 832).

 

It is worth noting that construction of the separation fence is unrelated to expropriation or confiscation of land.  The latter are prohibited by regulation 46 of The Hague Regulations (see HCJ 606/78 Iyub v. The Minister of Defense, 33(2) P.D. 113, 122; hereinafter – The Iyub case).  Construction of the fence does not involve transfer of ownership of the land upon which it is built.  The construction of the fence is done by way of taking possession.  Taking of possession is temporary.  The seizure order orders its date of termination.  Taking of possession is accompanied by payment of compensation for the damage caused.  Such taking of possession – which is not related in any way to expropriation – is permissible according to the law of belligerent occupation (see regulations 43 and 52 of The Hague Regulations, and §53 of The Fourth Geneva Convention: see The Iyub case, at p. 129; HCJ 834/78 Salame v. The Minister of Defense, 33(1) P.D. 471, 472; The Iyub case, at p. 122; HCJ 401/88 Abu Rian v. The Commander of IDF Forces in the Judea and Samaria Area, 42(2) P.D. 767, 770; HCJ 290/89 Jora v. The Military Commander of the Judea and Samaria Area, 43(2) P.D. 116, 118; HCJ 24/91 Timraz v. The Commander of IDF Forces in the Gaza Strip Area, 45(2) P.D. 325, 333 – hereinafter The Timraz Case; HCJ 1890/03 The Bethlehem Municipality v. The State of Israel – The Ministry of Defense (yet unpublished) – hereinafter The Bethlehem Municipality Case; HJC 10356/02 ­­­­­Hess v. Commander of the IDF Forces in the West Bank, 58 (3) P.D. 443, 456 – hereinafter The Hess Case; see also D. Kretzmer "The Advisory Opinion: The Light Treatment of International Humanitarian Law" 99 A.J.I.L. 88, 97 (2005) – hereinafter Kretzmer; N. Keidar "An Examination of the Authority of Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier" 38 Isr. L. Rev. 247 (2005) – hereinafter Keidar).  Pursuant to regulation 52 of The Hague Regulations, the taking of possession must be for "needs of the army of occupation".  Pursuant to §53 of The Fourth Geneva Convention, the taking of possession must be rendered "absolutely necessary by military operation".  G. Von Glahn discussed the legality of taking possession of land, stating:

 

“Under normal circumstances an occupier may not appropriate or seize on a permanent basis any immovable private property but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity” (G. von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation 186 (1957)).

 

The key question is, of course, whether taking possession of land is rendered "absolutely necessary by military operation" (on this question see Imseis "Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion", 99 A.J.I.L. 102 (2005), and Keidar, at p. 247).  This issue is for the military commander to decide.  J.S. Pictet discussed this point, stating:

 

“[I]t will be for the Occupying Power to judge the importance of such military requirements” (J.S. Pictet, Commentary IV Geneva Convention - Relative to the Protection of Civilian Persons in Time of War  302 (1958); hereinafter - Pictet).

 

Of course, the military commander's discretion is subject to judicial review by this Court (see The Timraz Case, at p. 335).

 

17.       In The Beit Sourik Case and preceding case law, the Supreme Court held that the authority to take possession of land for military needs is anchored not only in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention, but also in regulation 23(g) of The Hague Regulations.  The Advisory Opinion of the International Court of Justice at the Hague determined that the second part of The Hague Regulations, in which regulation 23(g) is found, applies only during the time that hostilities are occurring, and that therefore it does not apply to the construction of the fence (paragraph 124).  The International Court of Justice added that the third part of The Hague Regulations – which includes regulations 43 and 52 – continues to apply, as it deals with military government (§125).  This approach of the International Court of Justice cannot detract from this Court's approach regarding the military commander's authority to take possession of land for constructing the fence.  This authority is anchored, as mentioned, in regulations 43 and 52 of The Hague Regulations and in §53 of The Fourth Geneva Convention.  Regarding the principled stance of the International Court of Justice, we note the following two points: first, there is a view – to which Pictet himself adheres – by which the scope of application of regulation 23(g) can be widened, by way of analogy, to cover belligerent occupation as well (see Pictet, at p. 301; G. Schwarzenberger 2 International Law as Applied by International Courts and Tribunals: the Law of Armed Conflict 253, 314 (1968).  Second, the situation in the territory under belligerent occupation is often fluid.  Periods of tranquility and calm transform into dynamic periods of combat.  When combat takes place, it is carried out according to the rules of international law.  "This combat is not being carried out in a normative void.  It is being carried out according to the rules of international law, which determine principles and rules for the waging of combat" (see HCJ 3451/02 Almandi v. The Minister of Defense, 56(3) P.D. 30, 34; see also HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  In such a situation, in which combat activities are taking place in the area under belligerent occupation, the rules applicable to belligerent occupation, as well as the rules applicable to combat activities, will apply to these activities (see The Marab Case; HCJ 7015/02 Ajuri v. The Commander of IDF forces in the West Bank, 56(6) P.D. 352, and Watkin "Controlling the Use of Force: A Role of Human Rights Norms in Contemporary Armed Conflict" 98 A.J.I.L. 1, 28 (2004)).  Regulation 23(g) of The Hague Regulations will apply in such a situation in territory under belligerent occupation, due to the combat activities taking place in it.  The position of the state, as argued before us, is that the construction of the fence is part of Israel's combat actions.  It is, according to the state's argument, a defensive act of erecting fortifications; it is intended to stop the advance of an offensive of terrorism; it is a defensive act which serves as an alternative to offensive military activity; it is an act absolutely necessary for the for the combat effort.  As mentioned, we have no need to discuss this issue in depth, since the general authority granted the military commander pursuant to regulations 43 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention are sufficient, as far as construction of the separation fence goes.  We are thus able to leave that issue for decision at a later opportunity. 

 

18. The rationale behind the military commander's authority to construct a separation fence for security and military reasons includes, first and foremost, the need to protect the army in the territory under belligerent occupation.  It also includes defense of the State of Israel itself (compare §62(2) of The Fourth Geneva Convention, and HCJ 302/72 Hilo v. The Government of Israel, 27(2) P.D. 162, 178; The Iyub Case, at p. 117; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90; The Beit Sourik Case, at p. 833; Kretzmer, at p. 101).  Does the military commander's authority to construct a separation fence also include his authority to construct a fence in order to protect the lives and safety of Israelis living in Israeli communities in the Judea and Samaria area?  This question arises in light of the fact that Israelis living in the area are not "protected persons," as per the meaning of that term in §4 of The Fourth Geneva Convention (see The Gaza Coast Regional Council Case (yet unpublished, paragraph 4 of the opinion of the Court)).  Is the military commander authorized to protect the lives and defend the safety of people who are not "protected" under The Fourth Geneva Convention?  In our opinion, the answer is positive.  The reason for this is twofold: first, the military commander's general authority is set out in regulation 43 of The Hague Regulations, which determines:

 

"The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."

 

The authority of the military commander is, therefore, "to ensure . . . public order and safety".  This authority is not restricted only to situations of actual combat.  It applies as long as the belligerent occupation continues (see The Timraz Case, at p. 336).  This authority is not restricted only to the persons protected under international humanitarian law.  It is a general authority, covering any person present in the territory held under belligerent occupation.  Justice E. Mazza discussed this, stating:

 

"as far as the need to preserve the security of the area and the security of the public in the area is concerned, the military commander's authority applies to all persons present in the boundaries of the area at any given time.  This determination is a necessary deduction from the military commander's known and clear duty to preserve the security of the area and from his responsibility for preservation of the public peace in his area" (HCJ 2612/94 Sha'ar v. The Commander of IDF Forces in the Judea and Samaria Area, 48(3) P.D. 675, 679).

 

In another case I added:

 

"The Israeli settlement in the Gaza Strip is controlled by the law of belligerent occupation.  Israeli law does not apply in this area . . . the lives of the settlers are arranged, mainly, by the security legislation of the military commander.  The military commander's authority 'to ensure public order and safety' is directed towards every person present in the area under belligerent occupation.  It is not restricted to 'protected persons' only . . . this authority of his covers all Israelis present in the area" (HCJ 6339/05 Matar v. The Commander of IDF Forces in the Gaza Strip (yet unpublished); see also the Hess case, at p. 455).

 

Indeed, the military commander must ensure security.  He must preserve the safety of every person present in the area of belligerent occupation, even if that person does not fall into the category of 'protected persons' (see HCJ 72/86 Zlum v. The Military Commander of the Judea and Samaria Area, 41(1) P.D. 528, 532, hereinafter – The Zlum Case; HCJ 2717/96 Wafa v. The Minister of Defense, 50(2) P.D. 848, 856; HCJ 4363/02 Zindat v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished); HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611).

 

19.       Our conclusion is, therefore, that the military commander is authorized to construct a separation fence in the area for the purpose of defending the lives and safety of the Israeli settlers in the area.  It is not relevant whatsoever to this conclusion to examine whether this settlement activity conforms to international law or defies it, as determined in the Advisory Opinion of the International Court of Justice at the Hague.  For this reason, we shall express no position regarding that question.  The authority to construct a security fence for the purpose of defending the lives and safety of Israeli settlers is derived from the need to preserve "public order and safety" (regulation 43 of The Hague Regulations).  It is called for, in light of the human dignity of every human individual.  It is intended to preserve the life of every person created in God's image.  The life of a person who is in the area illegally is not up for the taking.   Even if a person is located in the area illegally, he is not outlawed. This Court took this approach in a number of judgments.  In one case I noted:

 

"The military commander's duty is to protect the security of his soldiers, while being considerate of the safety of the local population.  This population also includes the settlements located in the area.  Their legality is not under discussion before us, and will be determined in the peace treaties which the relevant parties will reach" (HCJ 4364/02 Zindat v. The Commander of the IDF Forces in the Gaza Strip (unpublished), and see also HCJ 6982/02 Wahidi v. The Commander of IDF Forces in the Gaza Strip (unpublished)).

 

In another case I stated:

 

"It is contended before us that the objective of the order is to allow movement between two settlements, and that this objective is not a legal one, as the settlements are not legal.  Not security considerations lie at the base of the order, rather political considerations.  This argument holds no water.  The status of the settlements will be determined in the peace treaty.  Until that time, respondent has the duty to defend the population (Arab and Jewish) in the territory under his military control (HCJ 4219/02 Gusin v. The Commander of IDF Forces in the Gaza Strip, 56(4) P.D. 608, 611; see also The Zlum Case, at p. 532).

 

In a similar vein wrote my colleague, Justice A. Procaccia:

 

"Alongside the area commander's responsibility for safeguarding the safety of the military force under his command, he must ensure the well being, safety and welfare of the residents of the area.  This duty of his applies to all residents, without distinction by identity – Jew, Arab, or foreigner.  The question of the legality of various populations' settlement activity in the area is not the issue put forth for our decision in this case.  From the very fact that they have settled in the area is derived the area commander's duty to preserve their lives and their human rights.  This sits well with the humanitarian aspect of the military force's responsibility in belligerent occupation" (The Hess Case, at p. 460).

 

 

20.       Indeed, the legality of the Israeli settlement activity in the area does not affect the military commander's duty – as the long arm of the State of Israel – to ensure the life, dignity and honor, and liberty of every person present in the area under belligerent occupation (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230, 243 (2005)).  Even if the military commander acted in a manner that conflicted the law of belligerent occupation at the time he agreed to the establishment of this or that settlement – and that issue is not before us, and we shall express no opinion on it – that does not release him from his duty according to the law of belligerent occupation itself, to preserve the lives, safety, and dignity of every one of the Israeli settlers.  The ensuring of the safety of Israelis present in the area is cast upon the shoulders of the military commander (compare §3 of The Fourth Geneva Convention).  Professor Kretzmer discussed this:

 

“[A] theory that posits that the fact that civilians are living in an illegal settlement should prevent a party to the conflict from taking any measures to protect them would seem to contradict fundamental notions of international humanitarian law. After all, the measures may be needed to protect civilians (rather than the settlements in which they live) against a serious violation of IHL”   (Kretzmer, at p. 93).

 

It is also to be noted that the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed in Washington D.C. between the State of Israel and the PLO on 28 September 1995, provided that the question of the Israeli settlements in the area will be discussed in the negotiations over the final status (see §17(a) and §31(5)).  It was also provided in that agreement that "Israel shall . . . carry the responsibility . . . for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order" (§12(1)).  This arrangement applies to all the Israeli settlements in the area.  This agreement was granted legal status in the area (see Decree Regarding Implementation of the Interim Agreement (Judea and Samaria)(No. 7), 5756-1995)(see The Gaza Coast Regional Council Case, paragraph 10 of the opinion of the Court, as well as Y. Zinger "The Israeli-Palestinian Interim Agreement Regarding Autonomy Arrangements in the West Bank and Gaza Strip – Some Legal Aspects", 27 Mishpatim 605 (1997) [Hebrew]).

 

21.       The second reason which justifies our conclusion that the military commander is authorized to order the construction of a separation fence intended to protect the lives and ensure the security of the Israeli settlers in the area is this: the Israelis living in the area are Israeli citizens.  The State of Israel has a duty to defend their lives, safety, and well being.  Indeed, the constitutional rights which our Basic Laws and our common law grant to every person in Israel are also granted to Israelis who are located in territory under belligerent occupation which is under Israeli  control.  We discussed that point in The Gaza Coast Regional Council Case:

 

"In our opinion, the Basic Laws grant rights to every Israeli settler in the area to be evacuated.  This jurisdiction is personal.  It is derived from the State of Israel's control over the area to be evacuated.  It is the fruit of a view by which the state's Basic Laws regarding human rights apply to Israelis found outside the state, who are in an area under its control by way of belligerent occupation" (Id., paragraph 80 of the opinion of the Court).

In sum, Israelis present in the area have the rights to life, dignity and honor, property, privacy, and the rest of the rights which anyone present in Israel enjoys (see The Hess Case, at p. 461).  Converse to this right of theirs stands the state's duty to refrain from impinging upon these rights, and to protect them.  In one case, an Israeli wished to enter the area.  The military commander refused the request, reasoning his refusal by the danger to the Israeli from being present in the place he wished to enter.  The Israeli responded that he will "take the risk" upon himself.  We rejected this approach, stating:

"Israel has the duty to protect her citizens.  She does not satisfy her duty merely since citizens are willing to 'take the risk upon themselves'.  This 'taking of risk' does not add or detract from the issue, as the state remains obligated to the well being of its citizens, and must do everything possible to return them safely to the country" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 406.  See also HCJ 9293/01 Barakeh, M.K. v. The Minister of Defense, 56(2) P.D. 509, 515; The Gaza Coast Regional Council Case (yet unpublished, paragraph 111 of the opinion of the Court)).

Thus it is, generally speaking.  Thus it certainly is, when many of the Israelis living in the area do so with the encouragement and blessing of the government of Israel.

22.       Of course, the scope of the human right of the Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right.  At the foundation of this differentiation lies the fact that the area is not part of the State of Israel.  Israeli law does not apply in the area.  He who lives in the area lives under the regime of belligerent occupation.  Such a regime is inherently temporary (see HCJ 351/80 The Jerusalem District Electric Company v. The Minister of Energy and Infrastructure, 35(2) P.D. 673, 690; The Jami'at Ascan Case, at p. 802; The Beit Sourik Case, paragraph 27; The Gaza Coast Regional Council Case, paragraph 8 of the opinion of the Court)).  The rights granted to Israelis living in the area came to them from the military commander. They have no more than what he has - Nemo dat quod non habet.  Therefore, in determining the substance of the rights of Israelis living in the area, one must take the character of the area and the powers of the military commander into account.  This Court discussed that point in The Gaza Coast Regional Council Case, as it examined the impingement of the human rights of the Israelis evacuated from the Gaza Strip:

"In determining the substance of the impingement and the rate of compensation, one must take into consideration the fact that the rights impinged upon are the rights of Israelis in territory under belligerent occupation.  The temporariness of the belligerent occupation affects the substance of the right impinged upon, and thus also, automatically, the compensation for the impingement (Id., paragraph 126 of the opinion of the Court).

While discussing the property right of Israelis evacuated from the Gaza Strip, the Court stated:

"This property right is limited in scope . . . most Israelis do not have ownership of the land on which they built their houses and businesses in the territory to be evacuated.  They acquired their rights from the military commander, or from persons acting on his behalf.  Neither the military commander nor those acting on his behalf are owners of the property, and they cannot transfer rights better than those they have.  To the extent that the Israelis built their homes and assets on land which is not private ('state land'), that land is not owned by the military commander.  His authority is defined in regulation 55 of The Hague Regulations. . . . The State of Israel acts . . . as the administrator of the state property and as usufructuary of it . . . " (Id., paragraph 127 of the opinion of the Court).

The scope of this right and the level of protection of it are not put forth for decision before us.  The Israelis whose lives and security the separation fence is intended to protect are not petitioners before us.  Their security, lives, rights of property, movement, and freedom of occupation, as well as the other rights recognized in Israeli law, are taken into consideration in the petition before us in the framework of the military commander's discretion regarding the need for a separation fence, and regarding its route (see The Zlum Case, at p. 532).

23.       Israel's duty to defend its citizens and residents, even if they are in the area, is anchored in internal Israeli law.  The legality of the implementation of this duty is anchored in public international law, as discussed, in the provisions of regulation 43 of The Hague Regulations.  In The Beit Sourik Case, this Court did not anchor the military commander's authority to erect the separation fence upon the law of self defense.  The Advisory Opinion of the International Court of Justice at the Hague determined that the authority to erect the fence is not to be based upon the law of self defense.  The reason for this is that §51 of the Charter of the United Nations recognizes the natural right of self defense, when one state militarily attacks another state.  Since Israel is not claiming that the source of the attack upon her is a foreign state, there is no application of this provision regarding the erection of the wall (paragraph 138 of the Advisory Opinion of the International Court of Justice at the Hague).  Nor does the right of a state to self defense against international terrorism authorize Israel to employ the law of self defense against terrorism coming from the area, as such terrorism is not international, rather originates in territory controlled by Israel by belligerent occupation.  This approach of the International Court of Justice at the Hague is not indubitable (see R. Higgins Problems and Process, International Law and How We Use It 253 (1994); F. Frank "Terrorism and the Right of Self-Defense" 95 A.J.I.L.  839 (2001); J. J. Paust "Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond" 35 Cornell Int'l L.J. 533 (2002); A. C. Arend and R. J. Beck International Law and the Use of Force - Beyond the UN Charter Paradigm (2000)).  It stirred criticism both from the dissenting judge, Judge Buergenthal (paragraph 6) and in the separate opinion of Judge Higgins (paragraphs 33 and 34).  Conflicting opinions have been voiced in legal literature.  There are those who support the ICJ's conclusion regarding self defense (see I. Scobbie "Words My Mother Never Taught Me – 'In Defense of the International Court'" 99 A.J.I.L. 76 (2005). There are those who criticize the ICJ’s views on self-defense (see M. Pomerance "The ICJ's Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial" 99 A.J.I.L. 26 (2005); Murphy "Self-Defense and the Israeli Wall Advisory Opinion: An Ipse, Dixit from the ICJ" 99 I.J.I.L. 62 (2005); Wedgwood "The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self Defence" 99 A.J.I.L. 52 (2005); Gross "Combating Terrorism: Self-Defense, Does it Include Security Barrier – Depends Who You Ask" 38 Corn. Int. L.J. 569 (2005). We find this approach of the International Court of Justice hard to come to terms with.  It is not called for by the language of §51 of the Charter of the United Nations (see the difference between the English and French versions, S. Rosenne 291 General Course on Public International Law 149 (2001)).  It is doubtful whether it fits the needs of democracy in its struggle against terrorism.  From the point of view of a state's right to self defense, what difference does it make if a terrorist attack against it comes from another country or from territory external to it which is under belligerent occupation?  And what shall be the status of international terrorism which penetrates into territory under belligerent occupation, while being launched from that territory by international terrorism's local agents?  As mentioned, we have no need to thoroughly examine this issue, as we have found that regulation 43 of The Hague Regulations authorizes the military commander to take all necessary action to preserve security.  The acts which self defense permits are surely included within such action.  We shall, therefore, leave the examination of self defense for a future opportunity.

            3.         The Military Commander's Considerations in Erecting the Separation Fence and the Balancing Between Them

24.       What are the considerations which the military commander must weigh in determining the route of the fence?  The first consideration recognized by international law is the security-military consideration, by force of which the military commander is permitted to weigh considerations of the security of the state, the security of the army, and the personal security of all present in the area.  Indeed, converse to the human rights of the Israelis stands the military commander's duty and authority to defend them.  The second consideration is, in the context of the petition before us, the good of the local Arab population.  The human dignity of every member of the population, including the local population, must be defended by the military commander.  Indeed, the basic rule is that every member of the local population is entitled to recognition:

"His human dignity, the sanctity of his life, and his status as a free person . . .  one must not take his life or his dignity as a person, and one must defend his dignity as a person . . . the military commander's duty according to the basic rule is twofold: first, he must refrain from acts which hurt the local residents.  That is his 'negative' duty; second, he must take the action necessary to ensure that the local residents will not be hurt.  That is his 'positive' duty" (HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 394).

The human rights of the local residents include the whole gamut of human rights.  My colleague, Justice A. Procaccia, discussed this point, noting:

"In the framework of his responsibility for the well being of the residents of the area, the commander must also work diligently to provide proper defense to the constitutional human rights of the local residents, subject to the limitations posed by the conditions and factual circumstances on the ground . . . included in these protected constitutional rights are freedom of movement, religion, and worship, and property rights.  The commander of the area must use his authority to preserve the public safety and order in the area, while protecting human rights" (The Hess Case, at p. 461). 

 

25.       Human rights, to which the protected residents in the area are entitled, are not absolute.  As any human rights, they are relative.  They can be restricted (The Limitation of Human Rights in Comparative Constitutional Law (de Mestral ed. 1986); Kiss "Permissible Limitations on Rights" The International Bill of Rights (L. Henkin ed. 1981) 290).  Some of the limitations stem from the need to take rights of other people into account.  Some of the limitations stem from the public interest (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraphs 14 and 15).  Thus, for example, the freedom of movement is not an absolute freedom.  It can be restricted due to national security needs, public order, or the rights and freedoms of others (see § 12(3) of the International Covenant on Civil and Political Rights, 1966).  The person responsible for the public interest in the area is the military commander.

26.       What is the legal source from which the protected persons in the area derive their rights?  It is unanimously agreed that international humanitarian law is the central source of these rights.  This law is established, inter alia, by The Hague Regulations.  Regulation 46 of The Hague Regulations provides as follows:

"Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated."

   

This humanitarian law is also established in The Fourth Geneva Convention, which protects the rights of "protected persons".  The central provision is established in §27:

"Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. . . . the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war."

These provisions have been quoted at times in the judgments of the Supreme Court (see HCJ 256/72 The Jerusalem District Electric Company v. The Minister of Defense, 27(1) P.D. 124; HCJ 302/72 Abu Hilu v. The Government of Israel, 27(2) P.D. 169; HCJ 574/82 Al Nawari v. The Minister of Defense, 39(3) P.D. 449; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 27(2) 349; HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(3) P.D. 385; The Beit Sourik Case).

27.       Can the rights of the protected residents be anchored in the international conventions on human rights, the central of which is the International Covenant on Civil and Political Rights, 1966, to which Israel is party (see E. Benvenisti The International Law of Occupation (1993); Dennis "Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation" 99 A.J.I.L. 119 (2005))?  The International Court of Justice at the Hague determined, in its Advisory Opinion, that these conventions apply in an area under belligerent occupation.  When this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions.  In one case, President M. Shamgar relied upon these international sources, stating:

"I enter not, at this point, into the question whether the obligations arising from the various agreements and declarations to be referred to, are legally binding . . . for the concrete purposes before us now, I shall assume that one can view the content of these legal documents as relevant" (HCJ 13/86 Shahin v. The Commander of IDF Forces in the Judea and Samaria Area, 41(1) P.D. 197, 210).

 

In another case, my colleague Justice D. Beinisch stated:

 

"We need not decide whether, and to what extent, the international conventions on human rights apply in the Judea and Samaria area . . .  Suffice it to say that in the framework of the military commander's duty to exercise his discretion reasonably, he must also take into account the interests and rights of the local population, including the need to minimize the impingement of its freedom of movement; and that, respondents do not contest" (The Bethlehem Municipality Case (yet unpublished, paragraph 15)).

 

We shall adopt a similar approach.  Indeed, we need not, in the framework of the petition before us, take a position regarding the force of the international conventions on human rights in the area.  Nor shall we examine the interrelationship between international humanitarian law and international law on human rights (on this question see T. Meron Human Rights and Humanitarian Norms as Customary Law (1989); Human Rights and Humanitarian Law: The Quest for Universality (D. Warner ed. 1997); J. Frowein "The Relationship Between Human Rights Regimes and Regimes of Belligerent Occupation" 28 Isr. Y. H. R. 1 (1998); D. Schindler "Human Rights and Humanitarian Law: Interrelationship of the Laws" 31 Am. U. L. Rev. 935 (1982)).  However, we shall assume – without deciding the matter – that the international conventions on human rights apply in the area.

 

28.       Indeed, in exercising his authority pursuant to the law of belligerent occupation, the military commander must "ensure the public order and safety."  In this framework, he must consider, on the one hand, considerations of state security, security of the army, and the personal security of all who are present in the area.  On the other hand, he must consider the human rights of the local Arab population.  Indeed, "the law of war usually creates a delicate balance between two magnetic poles.  Military necessity on the one hand, and humanitarian considerations on the other (Y. Dinstein "The Authority to Legislate in the Administered Territories" 2 Iyunei Mishpat 505, 509 (5732-5733) [Hebrew]).  I discussed this point in one case, noting:

 

"The Hague Regulations revolve around two main axes: one – ensuring the legitimate security interests of the occupier in territory held under belligerent occupation; the other – ensuring the needs of the civilian population in the territory held under belligerent occupation" (The Jami'at Ascan Case, at p. 794).

 

My colleague Justice A. Procaccia similarly noted that The Hague Regulations authorize the military commander to provide for two needs:

 

"The first need is military, and the other is a civilian-humanitarian need.  The first concerns itself with providing for the safety of the military force holding the area, and the second – with responsibility for maintaining the well being of the residents.  On the latter subject, the military commander is charged not only with preservation of the order and safety of the residents, but also with defense of their rights, and especially the constitutional human rights granted them.  The concern for human rights stands at the center of the humanitarian considerations which the military commander must weigh" (The Hess Case, at p. 455).

 

29.       These considerations – security needs on the one hand and the needs of the local population on the other – conflict each other.  Thus is usually the case.  Thus certainly is the case regarding the construction of the fence.  What is the military commander to do in this situation?  The answer is that he must create a balance between the conflicting considerations.  Indeed, like in many other areas of law, the solution is not found in "all" or "nothing"; the solution is in locating the proper balance between the clashing considerations.  The solution is not to assign absolute weight to one of the considerations; the solution is to assign relative weights to the various considerations, while balancing between them at the point of decision (see HCJ 953/83 Levy v. The Commander of the Southern District of the Israeli Police, 38(2) P.D. 393).  "In performing his task of preserving order and safety, the commander of the area must ensure, therefore, the critical security interests on the one hand, and protect the interests of the civilian population in the area on the other . . . between these foci of responsibility, a proper balance is needed" (The Hess Case, at p. 456).  Indeed, "The law of belligerent occupation recognizes the military commander's power to preserve the security of the area and to thus defend the safety of his state and its citizens.  However, it makes exercise of this authority conditional upon the proper balance between them and the rights, needs, and interests of the local population" (The Beit Sourik Case, at p. 833).

 

4.         Proportionality

 

30.       How shall this balancing be performed?  The answer is that this balancing raises no problem unique to belligerent occupation.  It is a part of a general problem in law (see A. Barak A Judge in A Democratic Society 262 (2004)[Hebrew]).  The solution to it is universal.  It is found, inter alia, in general principles of law, including reasonableness and good faith.  One of these basic principles which balances between a proper and fitting goal and the means for realizing it is the principle of proportionality (see The Hess Case, at p. 461; The Bethlehem Municipality Case, paragraph 15; The Beit Sourik Case, at p. 836; The Gaza Coast Regional Council Case, paragraph 102 of the opinion of the Court).  This principle draws its strength from international law and from the fundamental principles of Israeli public law.  The principle of proportionality is based on three subtests which fill it with concrete content.  The first subtest calls for a fit between goal and means.  There must be a rational link between the means employed and the goal one is wishing to accomplish.  The second subtest determines that of the gamut of means which can be employed to accomplish the goal, one must employ the least harmful means.  The third subtest demands that the damage caused to the individual by the means employed must be of appropriate proportion to the benefit stemming from it.  Note that "at times there is more than one way to satisfy the proportionality demand.  In such situations, a zone of proportionality (similar to the zone of reasonableness) should be recognized.  Any means which the administrative body chooses from within the zone is proportional" (The Beit Sourik Case, at p. 840).

 

            5.         The Scope of Judicial Review

 

31.       In a long line of judgments, the Supreme Court has determined the standards for the scope of judicial review of decisions and acts of the military commander in territory held under belligerent occupation.  This judicial review is anchored in the status of the military commander as a public official, and in the jurisdiction of the High Court of Justice to issue orders to bodies fulfilling public functions by law (§15(3) of Basic Law: The Judiciary).  In determining the scope of judicial review, it was decided on the one hand that the Court does not substitute the discretion of the military commander with its own discretion.  "It is but obvious that the Court does not slip into the shoes of the deciding military official . . . in order to replace the commander's discretion with the discretion of the Court" (Shamgar P. in HCJ 1005/89 Aga v. The Commander of IDF Forces in the Gaza Strip Area, 44(1) P.D. 536, 539).  The Court does not examine the wisdom of the decision, rather its legality (see HCJ 4764/04 Physicians for Human Rights v. The Commander of IDF Forces in Gaza, 58(5) P.D. 385, 393).  This is appropriate from the point of view of separation of powers.  On the other hand it was determined that the Court does not refrain from judicial review merely because the military commander acts outside of Israel, or because his actions have political and military ramifications.  When the decisions or acts of the military commander impinge upon human rights, they are justiceable.  The door of the Court is open.  The argument that the impingement upon human rights is due to security considerations does not rule out judicial review.  "Security considerations" or "military necessity" are not magic words (see HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56(6) P.D. 352, 375; HCJ 619/78 "Al Taliyeh" Weekly v. The Minister of Defense, 33(3) P.D. 505, 512; The Jami'at Ascan Case, at p. 809; HCJ 3114/02 Barakeh, M.K. v. The Minister of Defense, 56(3) P.D. 11, 16).  This is appropriate from the point of view of protection of human rights.

 

32.       It is between these two edges that the normative outline for the scope of judicial review is determined.  This outline examines whether the actions and decisions of the military commander uphold the law in the area.  When the action can be performed in a number of ways, the Court examines whether the act of the military commander is an act that a reasonable military commander could have adopted.  When the decision of the military commander relies upon military knowledge, the Court grants special weight to the military expertise of the commander of the area, upon whom the responsibility for the security of the area is cast (see HCJ 390/79 Duikat v. The Government of Israel, 34(1) P.D. 1, 25; HCJ 258/79 Amira v. The Minister of Defense, 34(1) P.D. 90, 92; The Beit Sourik Case, at p. 844).  When the decision of the military commander – based upon his military expertise – impinges upon human rights, the proportionality of the impingement will be determined according to the customary tests of proportionality.  In one case I discussed this point, noting:

 

"We assume that the military action performed in Rafiah is necessary from a military standpoint.  The question before us is whether the military action withstands the national and international standards which determine the legality of that action.  The mere fact that the action is called for on the military level does not mean that it is lawful on the legal level.  Indeed, we do not substitute the discretion of the military commander, regarding military considerations.  That is his expertise.  We examine their results on the humanitarian law level.  That is our expertise" (The Physicians for Human Rights Case, at p. 393).    

 

 

These standards – by which this Court has acted for a very long time – apply also regarding the scope of judicial review of the separation fence route at Alfei Menashe.  So we said in The Beit Sourik Case:

 

"The military commander is the expert regarding the military quality of the separation fence route.  We are experts regarding its humanitarian aspects.  The military commander determines where, on hill and plain, the separation fence will be erected.  That is his expertise.  We examine whether this route's harm to the local residents is proportional.  That is our expertise (Id., at p. 846).

 

C. The Beit Sourik Case

 

33.       In The Beit Sourik Case, the legality of the construction of the separation fence west of Jerusalem was discussed.  The length of that separation fence was approximately 40 kilometers.  It was part of phase C of the separation fence (upon which the government decided on October 1 2003).  Most of it was built east of the Green Line.  It includes, in its "Israeli" part, a number of Israeli settlements which were built in the Judea and Samaria area, near the Green Line.  The Supreme Court (President A. Barak, Vice President E. Mazza and Justice M. Cheshin) first discussed whether the military commander is authorized to order the construction of the fence, in light of petitioners' argument that a political consideration, and not a military one, lies at the foundation of its construction.  The Court held that the military commander's authority is limited to military-security considerations.  He is not authorized to take political reasons into account.  The Supreme Court examined the data before it and determined that "according to the factual basis before us, the reason for erecting the fence is a security reason" (Id., at p. 830).  On this issue, the Court relied upon government decisions which stressed its character as a security fence; upon affidavits of the commander of the area, in which the military considerations at the heart of the choice of route were detailed; upon the way the government officials went about things, changing (more than once) the route during the hearings, showing openness to suggestions which were raised, and agreeing (more than once) to move the fence route closer to the Green Line.  Summarizing this issue, the Supreme Court stated:

 

"We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in choosing the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (Id., at p. 831).

 

34.       The second question discussed by the Supreme Court regarded the legality of the orders issued in order to take possession of the land upon which the fence was built.  The various seizure orders were examined on their merits.  The Court found that there had been no defect in the process of issuing the orders or in the process of allowing the submission of appeals.  The Court determined that the military commander is authorized – according to the international law which applies in the area – to take possession of land, needed for military purposes, subject to his duty to pay compensation.  The Court relied upon regulations 23(g) and 52 of The Hague Regulations, and upon §53 of The Fourth Geneva Convention.  The Court held that "the obstacle is intended to take the place of combat military operations, by physically blocking terrorist infiltration into Israeli population centers" (Id., at p. 832).

 

35.       The third question discussed by the Court was the legality of the route chosen for the construction of the separation fence.  The Court discussed the need to achieve a balance between the security-military needs and the rights of the protected residents.  Regarding the security-military needs, the Court stated that it assigns special weight to the military opinion of the military commander, with whom the responsibility for security lies.  Regarding the rights of the protected persons, the Court relied upon the humanitarian law set out in The Hague Regulations and The Fourth Geneva Convention.  In the discussion of the appropriate balance, a considerable part of the judgment was devoted to the question of proportionality.  A comparison was made between the intensity of harm to security (without the security fence) and the harm to the local residents (caused by the security fence).  The Court held that the test for proportionality is an objective one. "This is a legal question, the expertise for which belongs to the Court" (Id., at p. 841).  Against this background, the Court examined the five segments of the fence (according to the five seizure orders).  Each fence segment was examined separately, as the separation fence's "proportionality varies according to local conditions" (Id., at p. 846).  Also examined, however, was the compound harm caused to the lives of the local population by all the fence segments together.  Some of the fence segments were found to be proportionate.  Others were found to be disproportionate.  The basis of the determination of lack of proportionality was the third subtest of proportionality.  The question posed by this subtest is whether "the severity of the injury to local inhabitants, by the construction of the separation fence along the route determined by the military commander, stand[s] in reasonable (proper) proportion to the security benefit from the construction of the fence along that route" (Id., at p. 850).  According to that subtest, it was determined, regarding one of the fence segments, that the separation fence "undermines the delicate balance between the duty of the military commander to preserve security and his duty to provide for the needs of the local inhabitants.  This approach is based on the fact that the route which the military commander established for the security fence – which separates the local inhabitants from their agricultural lands – injures the local inhabitants in a severe and acute way, while violating their rights under international humanitarian law" (Id., at p. 850).  One fence segment was held to be disproportionate, since "the farmers' way of life is impinged upon most severely. The regime of licensing and gates, as set out by the military commander, does not solve this problem" (Id., at p. 854).  A third fence segment was found to be disproportionate, as it created "a veritable chokehold, which will severely stifle daily life" (Id., at p. 855).  Regarding all fence segments found to be disproportionate, the Court stated that "[t]he injury caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The injury is of far wider a scope. It strikes across the fabric of life of the entire population" (Id., at p. 861).  The result was that those parts of the fence found to be disproportionate were annulled. 

 

36.       After the judgment in The Beit Sourik Case was handed down, the issue went back to the military commander.  He reexamined the route which had been under discussion in that case.  He made alterations to it, which, in his opinion, implement the content of the judgment.  Eight petitions against the legality of the new route are pending.  In seven of them, the Arab residents are petitioning against the new route (HCJ 5683/04 The Beit Sira Village Council et al. v. The Government of Israel; HCJ 426/05 The Bidu Village Council v. The Government of Israel; HCJ 2223/05 Abd el Wahab Kandil et al. v. The Military Commander of the Judea and Samaria Area; HCJ 3758/04 Agraib v. The Government of Israel; HCJ 8264/05 Hadur et al. v. The Military Commander of the Judea and Samaria Area; HCJ 8265/05 Saker Ibrahim Abdalla v. The Military Commander of the Judea and Samaria Area; HCJ 8266/05 Jamal v. The Military Commander).  In one of the petitions, an Israeli settlement petitions against the new route (HCJ 1767/05 The Har Adar Local Council v. The Ministry of Defense).  These petitions are yet pending, as we have been asked to examine – in an expanded panel - the Advisory Opinion of the International Court of Justice at the Hague, and its effect upon the normative outline as set out in The Beit Sourik Case.  It is to these questions which we now turn.

 

D. The Advisory Opinion of the International Court of Justice at the Hague

 

            1.         The Request for an Advisory Opinion and the Proceedings Before the International Court of Justice

 

37.       The General Assembly of the United Nations decided (on December 8 2003) to request an Advisory Opinion of the International Court of Justice at the Hague, regarding the legal consequences arising from the construction of the wall (as the separation fence is called in the decision of the General Assembly).  The language of the decision is as follows:

 

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” (Resolution ES-10/14).

 

 When it received the request for an Advisory opinion, the International Court of Justice notified all states entitled to appear before the Court that they may relay information to it regarding all aspects of the question presented before it.  In this framework, the Secretary-General of the UN submitted a dossier containing documents likely to throw light upon the question before the ICJ (on January 19 2004).  Written statements were filed to the ICJ by a number of states, including Israel.  The ICJ heard oral arguments.  Israel did not request to make oral arguments.  Two questions stood before the ICJ.  The first question was whether it has jurisdiction to give the requested opinion, and if the answer to that question is positive, are there reasons not to exercise that jurisdiction.  The second question was the question posed to it by the General Assembly, on the merits.  The Advisory Opinion was handed down on July 9 2004.

 

38.       The main factual basis upon which the ICJ based its opinion, comes from the dossier filed with the ICJ by the Secretary-General of the UN.  The dossier contains the resolution of the General Assembly requesting the ICJ's Advisory Opinion, as well as the background of the events that led to its adoption by the General Assembly.  The dossier also contains data likely to throw light upon the question posed to the ICJ.  A central source of the information on the separation fence is the report of the Secretary-General of the UN (of November 24 2003; hereinafter - "The Secretary-General's Report"), prepared prior to the UN General Assembly decision, and a written statement updating his report (of January 19 2004; hereinafter - "the Secretary-General’s written statement").  The Secretary-General's Report opens with a survey of government decisions regarding the "barrier" (as the Secretary-General calls it).  It describes the route of the barrier. 

According to this description, approximately 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will end up between the Green Line and the barrier (220,000 of whom in East Jerusalem). When the entire route of the barrier is completed, an additional 160,000 Palestinians will be in isolated enclaves, with the barrier almost completely encircling communities and tracts of land.  The planned route contains 320,000 Israelis (178,000 in East Jerusalem).  As the report continues, the Secretary-General describes the format of the barrier.  He notes that out of 180 km of the barrier already constructed or being constructed, 8.5 km are concrete walls, which the Israeli army sees as "gunfire protection walls".  They are generally found where Palestinian population centers abut Israel, such as the towns of Qalqiliya and Tulkarm, and parts of Jerusalem. The report further describes the phases of construction of the barrier.  Phase A runs 123 km (from the north end to Elkana).  Much of Phase A construction deviates from the Green Line, and incorporates Israeli settlements. According to UN officials' estimations, approximately 56,000 Palestinians have been put into enclaves - encircled areas that open into the West Bank.  Approximately 5300 Palestinians are in "closed areas" between the barrier and the Green Line.  These people require permits or identity cards.  The enclaves include Qalqiliya (population 41,606) and, to its south, a cluster of three villages with about 7300 residents.  Phase B of the barrier is 45 km long, at the northern part of the Green Line to the Jordan Valley.  It does not incorporate any settlements and does not create Palestinian enclaves.  The Secretary-General 's report also describes the plan for the barrier in Jerusalem.  Further on in the report, the route of the barrier from Elkana to the Ofer Camp military base is described.  It includes two "depth barriers" that together create enclaves encompassing 29,000 acres and 72,000 Palestinians in 24 communities.  The route deviates up to 22 km from the Green Line.  It includes a number of large settlements, including about 52,000 settlers in the "Ariel salient".  The government decision does not explain the nature of the barrier around this area.  Last described is the southern part of the barrier, 115 km long, which cuts several kilometers into the West Bank, to encompass the Gush Etzion settlement bloc and the settlement of Efrat.  An enclave is created with around 17,000 Palestinians.  The construction of the fence in this area has not yet begun.

 

39.       The Secretary-General's report describes the way in which land is requisitioned to build the barrier, including the possibility of petitioning the High Court of Justice.  It is noted that the orders expire on December 31 2005, but that they are renewable.  The report also describes the orders closing the area between the Green Line and the barrier ("Closed Areas"), pursuant to which there is no entrance into the closed area, and no one is allowed to be present in it.  This order will affect 73 km2 and 5300 Palestinians, living in 15 communities.  The order introduces a new system of residency status in the closed area.  Only upon issuance of a permit or ID card by IDF will residents of the closed area be able to remain in it.  Israeli citizens and residents can remain in the closed area and move freely to the closed area, from it, and within it, with no need for a permit.  At the date the report was written, most residents of the closed area had received permits for one month, three months, or six months.  All those that have a permit enter and exit through gates which open for 15 minutes, three times a day.  It is mentioned that if the Palestinian residents are denied regular access to their land, jobs and services, there is a concern that they will leave the area.

 

40.       The final part of the Secretary-General's report examines the humanitarian and socio-economic impact of the barrier.  According to the report, the barrier appears likely to deepen the fragmentation of the West Bank, which began with the closure system imposed after the outbreak of hostilities in September/October 2000.  The barrier dramatically increased the damage to the communities resulting from the closure system.  According to a report of the Palestinian Central Bureau of Statistics, the barrier has separated 30 localities from their health services, 22 localities from their schools, 8 localities from their primary water sources, and 3 localities from the electricity network.  The report states that the Palestinians living in the enclaves are facing some of the harshest consequences of the barrier’s construction and route. Thus, for example, the city of Qalqiliya is encircled by the barrier, with entrance and exit possible from only one gate.  Thus the town is isolated from almost all its agricultural land. The villages surrounding it are separated from their markets and services.  Thus, for example, at the UN hospital in Qalqiliya, a 40% drop in caseloads has been noted.  The report further notes that completed barrier sections have had a serious impact on agriculture.  Tens of thousands of trees have been uprooted.  Farmers, separated from their land, and often also from their water sources, must cross the barrier via the controlled gates. Recent harvests have perished due to the irregular opening and closing times of the gates.  According to the Secretary-General's report, the barrier has severely restricted movement and access for thousands of urban Palestinians in Jerusalem.  The wall at Abu Dis has already affected the access to jobs and essential social services, notably schools and hospitals.  The north part of the barrier in Jerusalem has damaged long standing commercial and social connections of tens of thousands of people.  This phenomenon will be repeated along much of the route through Jerusalem.  The report states that some Jerusalem identity card holders are outside the barrier, and some of West Bank identity card holders are within the barrier.  This raises concerns about the future status of residency for Palestinians in occupied East Jerusalem under current Israeli laws. The report states that if Israel persists in construction of the barrier, some of its economic and humanitarian impact can be limited if Israel allows regular movement through a series of 41 gates to Palestinians living east of the barrier who need to access their farms, jobs, or services in the closed area.  Such access cannot compensate for incomes lost from the barrier's destruction of property, land, and businesses.  This raises concerns over violations of the rights of the Palestinians to work, health, education, and an adequate standard of living.  At the end of the report appears a short summary of the positions of the government of Israel and of the PLO. 

 

41.       The Secretary-General's report was prepared before the General Assembly resolution.  After that resolution, the Secretary-General added a written statement updating his report (on January 29 2004).  In the Secretary-General's written statement, the Secretary-General repeated some of the data from his first report, and gave an update regarding the developments in the three months which had passed since it was filed.  The statement reported that at the time of its writing, 190 km of the barrier had been completed, and two main crossing terminals had been built.  The Secretary-General's written statement surveys the various segments of the barrier, according to the phase of construction to which they belong.  Phase A, according to the updated data, 150 km long, includes a double barrier around the Baka Sharqiya enclave.  The written statement notes, regarding this enclave, that according to the original route completed in July 2003, the barrier was erected east of the Green Line, such that the enclave included about 6700 Palestinians.  At the end of November 2003, Israel began to build a new barrier along the Green Line, west of the enclave.  Part of the new barrier passes through the town of Nazlat Issa, where a wall 800 m long has been built.  The United Nations has been informed that the east side of the barrier will eventually be pulled down.  The Secretary-General's written statement further states than south of Tulkarm, on the Green Line, a major crossing terminal is being built, modeled after the Karni crossing in the Gaza Strip.  The written statement notes that Israel has removed the permanent checkpoint at the east entrance to Qalqiliya.  In addition, in mid January 2004, construction started on underpasses connecting Qalqiliya to Habla, under the access road to Alfei Menashe.  Regarding phase B, the written statement mentions the completion of barrier segments running along the Green Line or adjacent to it, from the Gilboa Mountains to the Al Mutilla valley.  In January 2004, construction began on an additional segment, in the direction of the Jordanian border.  A third segment is planned to run south and away from the Green Line, toward the Taysir village.  The written statement notes that Israeli officials informed the UN that this segment may not be completed. The written statement further updates regarding construction of the crossing terminal at Jalameh, north of Jenin, which is to serve as the primary point of entry between Israel and the northern West Bank. The written statement further describes phase C of the barrier, including its three sub-phases (phase C1 – from Elkana to the Ofer Camp military base; phase C2 – the Ariel salient; and phase C3 – "the depth barriers").  Construction has begun of 4 km of phase C1, mostly near the Green Line, out of 40 planned kilometers.  The remainder of the planned route deviates from the Green Line, reaching up to 7 km inside the West Bank.  Phase C3 includes two planned "depth barriers", up to 9 km inside the West Bank – one east of the Ben Gurion airport and the other along the planned highway 45.  It was noted that the exact components of the "depth barriers" had not yet been determined, but that if they are constructed, they will create two enclaves containing 72,000 Palestinians living in 24 communities.  The UN was informed that this segment will to be the last to be built.

 

42.       A considerable part of the Secretary-General's written statement is devoted to the barrier in East Jerusalem.  The statement mentions that construction of the barrier in the southeast of the city had begun at the end of November 2003, along the municipal boundary determined by Israel.  The barrier runs 6 km beyond the Green Line, from El Ezaria to Har Homa.  In residential areas, like El Ezaria, the wall is built to a height of 9 m.  This segment cuts El Ezaria off from Jerusalem, and splits the village of Abu Dis into two.  At least 35,000 people will live east of the barrier along this segment, which has no gates.  The entrance into Jerusalem by those with Jerusalem identity cards will be allowed via a checkpoint beneath the eastern slope of the Mount of Olives.  Another concrete wall has been constructed south of Abu Dis.  The Secretary-General's written statement also spoke of a number of roads which are planned or being constructed adjacent to the barrier around Jerusalem, which will result, inter alia, in the separation of Palestinian traffic from Israeli traffic.  The written statement concludes with a description of the obstacle planned in the north of Jerusalem, which will separate the Al-Ram village from Jerusalem.  The UN was informed that changes in the route of highway 45 in this area are being considered.  Finally, the written statement noted that the government of Israel was continuing to erect the barrier along the route approved by the cabinet (on October 1 2003).  Moreover, noted the written statement, additional components, such as crossing terminals, roads, underpasses, and gates were being constructed. 

 

43.       In addition to the two reports of the Secretary-General, the dossier included two reports by special rapporteurs, appointed by the Commission on Human Rights, which were filed prior to the General Assembly decision.  One report (of September 8 2003) discussed the question of human rights violations in the occupied Arab territories, including Palestine.  Its author is Mr. John Dugard (hereinafter – "the Dugard report").  The second report (of October 31 2003) discusses "the right to food".  Its author is Jean Ziegler (hereinafter – "the Ziegler report").  We shall briefly discuss each of the two reports. 

 

44.       The Dugard report opens and closes with the finding that the fact must be faced, that what we are presently witnessing in the West Bank is a visible and clear act of territorial annexation under the guise of security.  The report describes the process of building the wall.  It points out that Palestinians between the wall and the Green Line will effectively be cut off from their land and workplaces, schools, health clinics, and other social services.  As a result, many Palestinians are leaving their homes and moving into the Palestinian territory beyond the wall.  There is a real concern of the creation of a new generation of refugees or internally displaced persons.  In the opinion of the rapporteur, the construction of the wall is nothing other than de facto annexation of territory.  The construction of the wall should be seen in the context of the building of settlements and the annexation of East Jerusalem.  Settlements in East Jerusalem and the West Bank are the principal beneficiaries of the wall, and approximately half of the 400,000 settler population will be incorporated on the Israeli side of the wall.  This data, along with the high cost of the wall, confirm the permanent nature of the wall.  Therefore, beyond the fact that the wall violates Palestinians' freedom of movement, restricts their access to education and health facilities, and results in the unlawful taking of Palestinian property, the wall also violates two of the most fundamental principles of international law: the prohibition on the forcible acquisition of territory, and the right to self determination.  The construction of the wall creates facts on the ground.  Despite the refrain from use of the term, the wall is annexation for all intents and purposes.  Thus the prohibition against forcible acquisition of territory – a prohibition mentioned in many international conventions, including the UN Charter - is violated.  This prohibition applies irrespective of whether the territory is acquired as a result of an act of aggression or in self-defense.  The building of the wall violates the Palestinians' right to self determination.  The realization of the right to self determination requires territorial sovereignty.  The construction of the wall substantially reduces the already small territory within which the Palestinians can exercise their right to self determination.  Israel responded to the Dugard report (on April 2 2004).

 

45.       Ziegler calls the security fence an "apartheid fence".  The building of the wall constitutes a violation of the obligation to respect the Palestinians' right to food, since it cuts the Palestinians off from their agricultural land, water wells, and other means of subsistence.  The report mentions that the fence route deviates considerably from the Green Line, and is a de facto annexation of territory on Israel's part.  The report presents data from the "B'tselem" organization, according to which 72,200 Palestinians in 36 communities will be cut off from their lands.  128,500 people in 19 communities will be put in enclaves and almost completely imprisoned by the winding route of the wall, including 40,000 residents of Qalqiliya.  11,700 people in 13 communities will be trapped in military closed areas between the wall and the Green Line, cut off from the Palestinian areas, but forbidden from entering Israel.  As a result of the construction of the wall, Israel will effectively annex most of the west aquifer system which provides 51% of the West Bank water resources.  As a result of their detachment from means of existence, many residents will be forced to leave their homes.  According to the estimate, between 6000 and 8000 residents have already left the area of Qalqiliya.  The report refers to the government's position that residents will be allowed to appeal the expropriation of lands.  However, the writer notes that all appeals made to the military Appeals Committee at the time of writing have been rejected, although the area expropriated was reduced in some of the cases.  In any case, the report adds, the speed at which the wall is being built (work continues 24 hours a day) makes it difficult to allow for proper judicial process.  The rapporteur concludes with a finding that if the wall continues to be built as planned, it will bite off almost half of the area remaining for the future Palestinian State.  Thus, the possibility of establishing a viable Palestinian state will be eliminated, and the Palestinians right to food will be denied.  Israel responded to the Zeigler report (on November 26 2003).

 

            2.         The ICJ's Jurisdiction and Discretion

 

46.       The International Court of Justice held, in the first part of its opinion, that it has jurisdiction to give the requested opinion, and that that jurisdiction is a discretionary power.  The ICJ further held that it sees no compelling reason for it not to give the opinion.  In this context, the opinion held that the ICJ has sufficient information and evidence to enable it to give the requested opinion.  This information is from the dossier submitted to the ICJ by the UN Secretary-General, written statements submitted to the ICJ by a number of states, Israel's written statement which, although limited to the question of jurisdiction and judicial propriety, included observations on other matters, including Israel's security concerns.  Additional documents issued by Israel on that issue, which are in the public domain, also stood before the ICJ.  This part of the Advisory Opinion was given by a majority of ICJ judges, with Judge Buergenthal dissenting.  According to the opinion of Judge Buergenthal, the ICJ should have exercised its discretion and declined to render the requested Advisory Opinion, since it did not have before it the requisite factual bases for its sweeping findings.  Judge Higgins and Judge Kooijmans noted in separate opinions, that they agree with the ICJ's opinion regarding exercise of jurisdiction with considerable hesitation.  Judge Higgins noted that she gave her vote in favor of the ICJ's finding that the building of the wall violates international law, since the wall undoubtedly has a significant negative impact upon portions of the population of the West Bank, without it being able to be excused on the grounds of military necessity.  On this issue, Israel did not explain to the ICJ why its legitimate security needs can  be met only by the route selected.  Judge Owada noted that the ICJ is lacking material explaining Israel's side of the picture, especially regarding the question why and how the wall, as it is actually planned and implemented, is necessary and appropriate. 

 

 

 

            3.         The Legality of the Fence in International Law

 

47.       The second part of the opinion is devoted to answering the question posed to the ICJ by the General Assembly.  The ICJ briefly described the historic background, beginning with the establishment of the British mandate at the end of the First World War and ending with the political agreements between Israel and the PLO in the 1990's.  The ICJ concluded this analysis with its conclusion that the territories between the Green Line and the eastern boundary of mandatory Palestine were occupied by Israel in 1967, and are held by her pursuant to customary international law, as an occupying power.  Following this introduction, the ICJ proceeded to analysis of the factual basis before it.  It referred, on this issue, to the Secretary-General's report and to his written statement.  At the conclusion of the analysis, the ICJ noted that 975 km2 (which are 16.6%) of the West Bank, containing 237,000 Palestinians, will lie between the Green Line and the wall.  If the full wall should be completed, an additional 160,000 Palestinians would live in almost completely encircled communities, described as enclavcs.  Nearly 320,000 Israeli settlers (178,000 of whom in East Jerusalem) would be living in the area between the Green Line and the wall.  It was further stated that the area between the Green Line and the wall had been declared as a closed area.  Residents of this area may no longer remain in it, nor may non-residents enter it, unless holding a permit or identity card issued by the Israeli authorities. Most residents have received permits for a limited period.  Israelis may remain in, or move freely to, from and within the Closed Area without a permit.  Access into and exit from the closed area are possible through access gates, which are open for short and infrequent periods. 

 

48.       Following the description of the factual basis, the ICJ proceeded to determining the principles of international law relevant to the examination of the legality of the actions taken by Israel.  The ICJ referred to §2(4) of the Charter of the United Nations, which prohibits use or threat of force.  The ICJ also referred to the principle of self determination.  The ICJ further determined that The Hague Regulations have become part of customary international law.  The Fourth Geneva Convention apply as well.  The ICJ further found that the international conventions on human rights also apply to the occupied Palestinian territory.  In this context, the ICJ held that the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Convention on the Rights of the Child apply in the area. 

 

49.       Against the background of this normative outline, the ICJ proceeded to examine the question whether the building of the wall is in breach of rules and principles of international law.  The ICJ noted, in this context, the rule prohibiting acquisition of territory by force, the international recognition of the Palestinian people's right to self determination, and its position that the Israeli settlements in areas occupied in 1967 are illegal, as they are contrary to the terms of §49(6) of The Fourth Geneva Convention.  Against this background, the ICJ noted the factual findings presented before it, according to which most Israelis and most of the Israeli settlements are expected, when the wall is completed, to be on its "Israeli" side.  This fact, held the ICJ, raises concern of de facto annexation of the territory on the "Israeli" side of the wall, as well as concern of promoting forced transfer of Palestinians from the seamline area to the "Palestinian" side of the wall.  All these severely impinge upon the Palestinian's right to self determination, a right which Israel must respect.  Judge Higgins, in her separate opinion, criticized the ICJ's finding that the fence impedes upon the Palestinian's right to self determination.  Judge Kooijmans noted, in his separate opinion, that the ICJ would have done well to have left the question of self determination to the political process.

 

50.       At this point, the ICJ proceeded to examine a number of specific provisions of humanitarian law and of human rights law, which appear in international conventions.  In this analysis, the ICJ relied upon the Commission on Human Rights' two rapporteurs' reports.  On this issue, the ICJ held: first, that there is no justification for building the wall in regulation 23(g) of The Hague Regulations, as this regulation is included in the second part of the regulations, which does not apply; second, the building of the fence is contrary to the provisions of regulations 46 and 52 of The Hague Regulations, and of §53 of The Fourth Geneva Convention.  Third, the fence restricts the Palestinians' freedom of movement.  That restriction is aggravated by the fact that the gates where passage is permitted are few in number, and their opening hours are restricted and unpredictably applied.  Thus, for example, the city of Qalqiliya, with a population of 40,000, is encircled by the wall, and the residents can enter it or exit from it through one military checkpoint, which is open from 7am until 7pm.  Fourth, the building of the wall damages agricultural produce and many water wells, which are the principle means of subsistence for many Palestinians.  Fifth, the wall makes difficult many Palestinians' access to health, education, water, and electricity services, while effectively annexing most of the western aquifer system in the area.  The wall has caused many businesses to shut down.  Last, as a result of the building of the wall, many Palestinians will likely be forced to move from their present place of residence to another place of residence.  These repercussions, together with the establishment of Israeli settlements in the area, tend toward a change of the area's demographic composition.

 

51.       In light of the ICJ's holdings regarding the breach of international law resulting from the building of the wall, the ICJ examined whether there are legal sources which derogate from the application of that law or qualify its application.  The ICJ held that there are no such sources.  It was held that The Hague Regulations and The Fourth Geneva Convention do not qualify the prohibition of transfer of civilian population into the occupied territory.  Regarding the qualification in The Geneva Convention regarding military necessity, it was determined that this qualification may apply in periods in which there is no active combat, but the ICJ was not persuaded that such necessity exists in this case.  Nor did the ICJ find that any of the recognized qualifications in international human rights conventions apply.  Israel did not qualify her duties pursuant to these conventions in the relevant context, and the exemptions in them do not arise in these circumstances.  Nor was the ICJ persuaded that Israel's actions in building the wall were taken for the purposes of promoting the general welfare (as required by §4 of The International Covenant on Economic, Social and Cultural Rights).  Judge Kooijmans commented, in his separate opinion, that even if the wall was being built for the military purpose of defending the legitimate rights of the Israeli citizens, it would fail the test of proportionality. 

 

52.       The ICJ summed up this aspect of its opinion by saying:

 

“To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments” (paragraph 137 of the opinion).

 

This conclusion was criticized by the dissenting judge, Judge Buergenthal.  He noted that the ICJ's opinion failed to address any facts or evidence specifically rebutting Israel’s claim of military exigencies or requirements of national security. On this subject, the ICJ ignored Israel's position.  The ICJ determined that it was "not convinced" that the route of the wall was chosen for security reasons, without showing why it was not so convinced.  Therefore, according to Judge Buergenthal, the conclusions of the ICJ are not convincing.  Judge Owada also noted in his separate opinion that the ICJ did not have before it the material explaining the Israeli side of the picture regarding the security necessity of the fence.  Judge Owada wrote, that even if such material cannot prevent the conclusion that international humanitarian law has been breached, presentation of such material is important for fairness in the proceedings.

 

53.       The ICJ proceeded to examine the argument that justification for the building of the wall is to be found in Israel's right to self defence, as provided in §51 of the Charter of the United Nations.  It was determined that §51 recognizes the existence of an inherent right of self-defence in the case of armed attacks by other states. However, Israel does not claim that the attacks against it are imputable to a foreign state.  Even the Security Council's resolutions (no. 1368 and 1373 of 2001), which recognized certain aspects of war against terrorism as included in §51 of the charter, do not justify the construction of the wall, since Israel is arguing that the attack against it originates in territory in which it exercises control, and not in territory beyond its control, as was the case in those resolutions.  The ICJ found that §51 of the charter has no relevance in the case.  This approach of the ICJ spurred the criticism of a number of judges.  Dissenting Judge Buergenthal did not accept the ICJ's position that only when a state is attacked by another state, is it entitled to exercise its right to self defence.  In his opinion, the terrorist attacks upon Israel from the territory under belligerent occupation grant Israel the right to self defence.  Judge Higgins as well, in her separate opinion, distanced herself from the ICJ's position regarding self defence.  In her opinion, there is nothing in the text of §51 of the Charter of the United Nations which stipulates that self-defence is available only when an armed attack is made by a State. Judge Higgins also failed to understand the ICJ’s view that an occupying power loses the right to defend its own civilian citizens at home if the attacks emanate from the occupied territory – a territory which it has found not to have been annexed and is certainly ‘other than’ Israel. However, she did not vote against the ICJ's opinion on this issue, both since she was unconvinced that non-forcible measures (such as the building of a wall) fall within self-defence under Article 51 of the Charter, and since the building of the fence, even if it can be seen as an act of self-defence, would need to be justified as necessary and proportional. Those justifications, according to Judge Higgins, have not been explained. Judge Kooijmans noted in his separate opinion, in this context, that a state has the right to defend itself against international terrorism.  He opined that Israel does not have this right, since the terrorism against her originates in territory held by her.

 

54.       Finally, the possibility of basing the building of the wall upon customary international law regarding "state of necessity" was rejected.  The ICJ stated that this doctrine allows such acts only if they are the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction. The construction of the wall on its present route does not meet this condition.  The ICJ writes:

 

"The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population.  It has the right, and indeed the duty, to respond in order to protect the life of its citizens.  The measures taken are bound nonetheless to remain in conformity with applicable international law" (paragraph 141).

 

In this context, Judge Higgins noted, in her separate opinion, that the ICJ should have said that defense of civilians is not only the duty of the occupying state, but is also the duty of those seeking to liberate themselves from occupation (paragraph 19).

 

55.       At the conclusion of its opinion, the ICJ detailed the normative results stemming from it.  The ICJ held that the construction of the wall is contrary to international law. The ICJ further held that Israel is under an obligation to terminate its breaches of international law, and to cease forthwith the works of construction of the wall. Israel must dismantle all that she built, and repeal or render ineffective forthwith all acts relating thereto. According to the Advisory Opinion, Israel is under an obligation to make reparation for all damage caused by the construction of the wall. It was further determined, on the international plane, that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall.  Judge Kooijmans voted against this final conclusion regarding the duty of the states.

 

E.        The Advisory Opinion of the International Court of Justice at the Hague and The Beit Sourik Case

 

            1.         The Legal Status of the Advisory Opinion

 

56.       The opinion of the ICJ – as its title testifies, and in contrast to a judgment by the same court – is an Advisory Opinion.  It does not bind the party who requested it.  As the ICJ itself noted in its opinion (paragraph 31), it does not bind the states.  It is not res judicata (see S. Rosenne The Perplexities of Modern International Law 122 (2002)).  However, the opinion of the International Court of Justice is an interpretation of international law, performed by the highest judicial body in international law (S. Rosenne 3 The Law and Practice of the International Court, 1920-1996 1754 (3^rd ed. 1997)).  The ICJ's interpretation of international law should be given its full appropriate weight.

 

            2.         The Difference Between the Conclusions of the Advisory Opinion of the ICJ and of The Beit Sourik Case

 

57.       The basic normative foundation upon which the ICJ and the Supreme Court in The Beit Sourik Case based their decisions was a common one (see Watson "The 'Wall' Decisions in Legal and Political Context" 99 A.J.I.L. 6 (2005); hereinafter – Watson).  The ICJ held that Israel holds the West Bank (Judea and Samaria) pursuant to the law of belligerent occupation.  That is also the legal view at the base of The Beit Sourik Case.  The ICJ held that an occupier state is not permitted to annex the occupied territory.  That was also the position of the Court in The Beit Sourik Case.  The ICJ held that in an occupied territory, the occupier state must act according to The Hague Regulations and The Fourth Geneva Convention.  That too was the assumption of the Court in The Beit Sourik Case, although the question of the force of The Fourth Geneva Convention was not decided, in light of the State's declaration that it shall act in accordance with the humanitarian part of that convention.  The ICJ determined that in addition to the humanitarian law, the conventions on human rights apply in the occupied territory.  This question did not arise in The Beit Sourik Case.  For the purposes of our judgment in this case, we assume that these conventions indeed apply.  The ICJ held that the legality of the "wall" (the "fence" in our nomenclature) shall be determined, inter alia, by regulations 46 and 52 of The Hague Regulations and §53 of The Fourth Geneva Convention.  This was also the position of the Supreme Court in The Beit Sourik Case.  The ICJ held that as a result of the building of the "wall", a number of rights of the Palestinian residents were impeded.  The Supreme Court in The Beit Sourik Case also held that a number of human rights of the Palestinian residents had been impeded by the building of the fence.  Finally, the ICJ held that the harm to the Palestinian residents would not violate international law if the harm was caused as a result of military necessity, national security requirements, or public order.  That was also the approach of the Court in The Beit Sourik Case.

 

58.       Despite this common normative foundation, the two courts reached different conclusions.  The ICJ held that the building of the wall, and the regime accompanying it, are contrary to international law (paragraph 142).  In contrast, the Supreme Court in The Beit Sourik Case held that it is not to be sweepingly said that any route of the fence is a breach of international law.  According to the approach of the Supreme Court, each segment of the route should be examined to clarify whether it impinges upon the rights of the Palestinian residents, and whether the impingement is proportional.  It was according to this approach, that the fence segments discussed in The Beit Sourik Case were examined.  Regarding some segments of the fence, it was held that their construction does not violate international law.  Regarding other segments of the fence, it was held that their construction does violate international law.  Against the background of this difference, two questions arise: The first, what is the basis of this difference, and how can it be explained?  The second, how does the explanation of the difference between the conclusions of the two courts affect the approach of the Supreme Court of Israel regarding the question of the legality of the separation fence according to international law generally, and the question of the legality of the separation fence in the Alfei Menashe enclave, specifically?  We shall discuss each of these two questions separately.

 

            3.         The Basis of the Difference Between the Conclusions of Each of the Two Courts

 

59.       The basis of the main difference between the legal conclusions of the International Court of Justice at the Hague and the judgment in The Beit Sourik Case can be found in the ICJ's concluding passage.  We discussed this passage (see paragraph 52, supra).  In light of its importance, we shall quote it again:

 

"To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives.  The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.  The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments" (paragraph 137).

 

From this passage – as well as the rest of the opinion – it appears that, based on the data before the ICJ, it was not persuaded that the route of the wall – which severely impedes the rights of the Palestinian residents – is necessary for achieving the security objectives which Israel contended.  In contrast, the Supreme Court in The Beit Sourik Case ruled that there is a military necessity to erect the fence.  However, it ruled that some discussed segments of the fence route violate the Palestinian residents' rights disproportionately.  What is the basis of this difference between the two judgments?

 

60.       The answer to that question is that the main difference between the legal conclusions stems from the difference in the factual basis laid before the court.  This difference was affected, in turn, by the way the proceedings are conducted and by the legal problem before the court.  We shall discuss this difference.

 

            4.         The Difference in the Factual Basis

 

61.       The main difference between the two judgments stems primarily from the difference in the factual basis upon which each court made its decision.  Once again, the simple truth is proven: the facts lie at the foundation of the law, and the law arises from the facts (ex facto jus oritur).  The ICJ drew the factual basis for its opinion from the Secretary-General's report, his written statement, the Dugard report, and the Zeigler report.  The Supreme Court drew the facts from the data brought before it by the Palestinian petitioners on the one hand, and the State on the other.  In addition, The Supreme Court received an expert opinion by military experts who requested the opportunity to present their position as amici curie.  Despite the fact that the data which each court received regarded the same wall/fence, the difference between each set of data is deep and great.  This difference is what ultimately led to the contrary legal conclusions.  In what is this difference manifested?   

 

62.       The first difference, and the most important one, regards the security-military necessity to erect the fence.  This necessity was presented expansively before the court in The Beit Sourik Case.  The State laid out before the Court the full data regarding the terrorism which has plagued Israel since September 2000; regarding the character of this terrorism, which spares no means, including "human bombs" which explode in buses, in shopping centers, and in markets; regarding the thousands killed and injured; regarding the various military action taken in order to defeat the terrorism ("Defensive Wall" in March 2002; "Determined Path" in June 2002), which did not provide a sufficient solution to it; regarding the additional plans which were suggested, yet rejected due to legal reasons (see, e.g., The Ajuri Case) or were of no avail.  Against this background came the decision to construct of the fence.  From the evidence presented before the Court, the conclusion arose that the decision to erect the fence was not the fruit of a political decision to annex occupied territory to Israel.  The decision to erect the fence arose out of security-military considerations, and out of security-military necessity, as a necessary means to defend the state, its citizens, and its army against terrorist activity.  Against this background, we wrote, in The Beit Sourik Case:

 

"We examined petitioners’ arguments.  We have come to the conclusion, based upon the facts before us, that the reason the fence is being erected is a security reason. As we have seen in the government decisions concerning the construction of the fence, the government has emphasized, numerous times, that 'the fence, like the additional obstacles, is a security measure.  Its construction does not reflect a political border, or any other border' (decision of June 23, 2002).  'The obstacle that will be erected pursuant to this decision, like other segments of the obstacle in the 'Seamline Area,' is a security measure for the prevention of terrorist attacks and does not mark a political border or any other border” (decision of October 1, 2003)" (p. 830).

 

Later in our judgment, we dealt with the affidavit submitted to us by the military commander:

 

"In his affidavit he stated that 'the objective of the security fence is to allow effective confrontation of the array of threats stemming from Palestinian terrorism.  Specifically, the fence is intended to prevent the unchecked passage of residents of the area into Israel and their infiltration into certain Israeli communities located in the area. The choice of the topographic route was derived from the security consideration' (affidavit of April 15 2004, sections 22-23). The commander of the area detailed his considerations behind the choice of the route. He noted the necessity that the fence pass through territory that topographically controls its surroundings; that it pass through a route as flat as possible, which will allow surveillance of it; and that a 'security zone' be established which will delay infiltration into Israel. These are security considerations par excellence. In an additional affidavit which was submitted to us, Major General Kaplinsky testified that 'it is not a permanent fence, but rather a fence erected temporarily, for security needs' (affidavit of April 19 2004, section 4).  We have no reason to give this testimony less than its full weight, and we have no basis for not believing in the sincerity of the military commander's testimony" (p. 830).

 

We concluded our discussion on this question, stating:

 

"We devoted seven sessions to the hearing of the petition.  We intently listened to the explanations of officers and workers who handled the details of the fence.  During our hearing of the petition, the route of the fence was altered in a number of locations. Respondents showed openness to various suggestions which were made. Thus, for example, adjacent to the town of Har Adar, they agreed to move the fence passing north of the town to the security zone closer to the town, and distance it from the lands of the adjacent village of El Kabiba.  We have no reason to assume that the objective is political rather than security-based. Indeed, petitioners did not carry the burden and did not persuade us that the considerations behind the construction of the separation fence are  political rather than security-based. Similarly, petitioners did not carry their burden, and did not persuade us that the considerations of the Commander of the IDF Forces in the area, in determining the route of the separation fence, are not military considerations, and that he has not acted to fulfill them in good faith, according to his best military understanding" (p. 831).

 

63.       The security-military necessity is mentioned only most minimally in the sources upon which the ICJ based its opinion.  Only one line is devoted to it in the Secretary-General's report, stating that the decision to erect the fence was made due to a new rise in Palestinian terrorism in the Spring of 2002.  In his written statement, the security-military consideration is not mentioned at all.  In the Dugard report and the Zeigler report there are no data on this issue at all.  In Israel's written statement to the ICJ regarding jurisdiction and discretion, data regarding the terrorism and its repercussions were presented, but these did not find their way to the opinion itself.  This minimal factual basis is manifest, of course, in the opinion itself.  It contains no real mention of the security-military aspect.  In one of the paragraphs, the opinion notes that Israel argues that the objective of the wall is to allow an effective struggle against the terrorist attacks emanating from the West Bank (paragraph 116).  That's it.  In another paragraph, the ICJ discusses the force of §53 of The Fourth Geneva Convention, according to which it is prohibited for an occupier state to harm local property, "except where such destruction is rendered absolutely necessary by military operations".  Regarding that, the ICJ stated:

 

“[O]n the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations” (paragraph 135).

 

Further on, the ICJ discussed human rights according to the international conventions.  It notes that the conventions allow restriction of human rights.  In this context, the ICJ mentioned the freedom of movement (§12 of The International Covenant on Civil and Political Rights).  It noted that pursuant to §12(3) of that convention, it is permissible to restrict the freedom of movement, if the restriction is necessary for the defense of national security or public order (ordre public). The ICJ ruled out these restrictions' application to the wall, since:

 

 “On the basis of the information available to it, the Court finds that these conditions are not met in the present instance” (paragraph 136).

 

The ICJ concluded its position, holding:

 

“[T]he Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives” (paragraph 137).

 

Finally, the ICJ discussed the necessity defense.  The ICJ analyzed the elements of this defense, noting:

 

“In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interest of Israel against the peril which it has invoked as justification for the construction” (paragraph 140).

 

64.       This minimal factual basis regarding Israel's security-military necessity to erect the fence did not go unnoticed by the judges of the ICJ.  The dissenting judge, Judge Buergenthal, noted in his opinion:

 

“I am compelled to vote against the Court’s finding on the merits because the Court did not have before it the requisite factual bases for its sweeping findings” (paragraph 1).

 

Judge Buergenthal mentioned the possibility that, on the basis of all the facts, the conclusion would be that the building of the wall violates international law; however, in his opinion,

 

“[To] reach that conclusion with regard to the wall as a whole without having before it or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subject, cannot be justified as a matter of law. The nature of these cross-Green Line attacks and their impact on Israel and its population are never really seriously examined by the Court, and the dossier provided the Court by the United Nations on which the Court to a large extent bases its findings basely touches on that subject” (paragraph 3).

 

In his separate opinion, Judge Kooijmans stated his opinion that:

 

“[T]he present Opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique reference to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose” (paragraph 13).

 

A similar attitude can be found in the separate opinion of Judge Owada.  He notes that the ICJ had ample material before it regarding the humanitarian and socioeconomic effect of the building of the wall.  In contrast,

 

“What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate” (paragraph 22).

 

Judge Owada quotes the statement in the Advisory Opinion that, on the basis of the material before the ICJ, it is not convinced that the fence route is necessary for achieving the security objectives (pargraph 137 of the Advisory Opinion), and adds:

 

“It seems clear to me that here the Court is in effect admitting the fact that elaborate material on this point from the Israeli side is not available, rather than engaging in a rebuttal of the arguments of Israel on the basis of the material that might have been made available by Israel on this point” (paragraph 23).

 

65.       We need not determine, nor have we a sufficient factual basis to determine, who is to blame for this severe oversight.  Is it the dossier of documents submitted to the ICJ?  Is it the oversight of the State of Israel itself, or was it the ICJ's unwillingness to use the data submitted to it by Israel and other data in the public domain?  Or maybe it is the method of examination, which focused on the fence as a totality, without examining its various segments (see paragraph 70, infra)?  Whatever the reason may be, the reality is that the ICJ based its opinion on a factual basis regarding impingement of Palestinian residents' rights, without the factual basis regarding the security-military justification for this impingement.  In contrast, in The Beit Sourik Case, an expansive factual basis was laid before the court, both regarding the impingement upon the local residents' human rights and regarding the security-military needs.  This comprehensive factual basis made it possible for the Court to decide that certain parts of the separation fence violate the rules of international law, and that other parts of the fence do not violate those rules.  Thus, we have the first explanation for the difference between the conclusions of the ICJ and the conclusions of this Court in The Beit Sourik Case.

 

66.       The other difference between the two judgments regarding the factual basis regards the scope of the impingement of the local residents' rights.  This impingement stood at the foundation of both judgments.  However, the factual basis was different.  In The Beit Sourik Case, the petitioners brought various data regarding the scope of the impingement of their rights due to the construction of the fence on their lands.  The State brought its own data.  The Court examined the different positions.  It examined each part of the route before it, separately.  On the basis of the totality of the evidence before it, the scope of the impingement of the local residents' rights was established.  This impingement was by no means a light one.  Thus wrote the Court:

 

"Having completed the examination of the proportionality of each order separately, it is appropriate that we lift our gaze and look out over the proportionality of the entire route of the part of the separation fence which is the subject of all of the orders. The length of the part of the separation fence to which the orders before us apply is approximately forty kilometers. It impinges upon the lives of 35,000 local residents. Four thousand dunams of their lands are taken up by the fence route itself, and thousands of olive trees growing along the route itself are uprooted.  The fence cuts off the eight villages in which the local inhabitants live from more than 30,000 dunams of their lands. The great majority of these lands are cultivated, and they include tens of thousands of olive trees, fruit trees, and other agricultural crops. The licensing regime which the military commander wishes to establish cannot prevent or substantially decrease the extent of the severe injury to the local farmers.  Access to the lands depends upon the possibility of crossing the gates, which are very distant from each other and not always open. Security checks, which are likely to prevent the passage of vehicles and which will naturally cause long lines and many hours of waiting, will be performed at the gates. These do not go hand in hand with a farmer’s ability to work his land. There will surely be places where the security fence must cut the local residents off from their lands. In these places, passage which will reduce the injury to the farmers to the extent possible should be ensured" (p. 860).

 

Later in the judgment the Court held:

 

"The damage caused by the separation fence is not restricted to the lands of the residents and to their access to these lands.  The damage is of a wider scope. It strikes across the fabric of life of the entire population. In many locations, the separation fence passes right by their homes. In certain places (like Beit Sourik), the separation fence surrounds the village from the west, the south and the east.  The fence directly affects the ties between the local residents and the urban centers (Bir Nabbala and Ramallah). These ties are difficult even without the separation fence. This difficulty is multiplied sevenfold by the construction of the fence" (p. 861).

 

Against this background - and balancing with the security-military needs – it was decided which fence segments illegally violate the rights of the local population according to international law, and which fence segments are legal.

 

67.       The ICJ based its factual findings regarding impingement upon the local residents' rights, upon the Secretary-General's report and his supplemental documents, and upon the Dugard report and the Zeigler report (see paragraph 133 of the opinion).  In their arguments before us, State's counsel noted that the information relayed to the ICJ in these reports is far from precise.  We shall discuss some of these arguments of the State:

 

(a)        The ICJ quotes data relayed by a special committee, according to which 100,000 dunams of agricultural land were seized for construction of the first phase of the obstacle.  The State contends that this figure is most exaggerated.  According to its figures, the area seized for the construction of phase A of the fence is 8300 dunams, 7000 of which is private land.

 

(b)        the reports upon which the ICJ relied describe a cutoff between the residents of the seamline area and the other parts of the West Bank.  According to figures presented to us, that is not precise, as a regime of permits allows entry and exit from the seamline area.

 

(c)        The opinion quotes the Zeigler report, according to which Israel is annexing most of the western aquifer system, which supplies 51% of the water consumption of the territories, by erecting the obstacle.  The State claims that this is completely baseless.  It was mentioned before us that in the framework of the interim agreement between Israel and the PLO, detailed arrangements regarding the water issue were stipulated.  The construction of the fence does not affect the implementation of the water agreements determined in the agreement.

 

(d)       A number of paragraphs in the opinion discussed the city of Qalqiliya.  The ICJ quotes the Dugard report, according to which the city is sealed off from all sides.  Residents are allowed to exit and enter through one military gate which is open from 7am to 7pm.  This conclusion contradicts the Secretary-General's written statement, according to which there is no checkpoint at the entrance to the city.  The State adds that two open access roads now lead to the city of Qalqiliya.  Part of the obstacle east of the city was dismantled.  Parts of the Dugard report and the Zeigler report, according to which 6000 to 8000 residents left the city of Qalqiliya and 600 stores were closed in that city, were mentioned in the opinion.  The State contends that since April 2004, approximately 90% of the stores which closed have been reopened.  Regarding residents' leaving, in the State's opinion, it is very difficult to reach a clear cut conclusion on this issue.  The ICJ's opinion held, on the basis of the Secretary-General's report, that as a result of the building of the wall, a 40% drop in caseload at the UN hospital in Qalqiliya had been recorded.  From a graph submitted to us by the State it appears that the number of hospitalization days in 2004 is higher than that of 2002.  The conclusion is that it cannot be said that the separation fence brought to a decrease in the number of hospitalized patients.  The graph also shows that in 2003 there was a considerable rise in the number of beds in hospitals.  In addition, a new private hospital was opened in Qalqiliya in 2003, and the Palestinian Authority also opened a hospital in 2002.  In the opinion of the State, it is reasonable to assume that the opening of the new hospitals affected the caseload of the UN hospital in Qalqiliya.

 

68.       The difference between the factual bases upon which the courts relied is of decisive significance.  According to international law, the legality of the wall/fence route depends upon an appropriate balancing between security needs on the one hand and the impingement upon the rights of the local residents on the other.  We have a scale before us: on one side rests the impingement upon the rights of the local residents, and on the other side rest the security and military considerations.  Delicate and sensitive balancing between the two sides of the scale, taking into account the need to ensure the proportionality of the security measures' impingement upon the local residents' rights, and taking into account the margin of appreciation given the state, brings about the appropriate solution.  In The Beit Sourik Case, data were laid before the Court on both sides of the scale.  In certain parts of the route discussed before the court, the considerations regarding the impingement upon human rights prevailed.  At other parts of the route, the security-military needs prevailed.  Not so was the opinion of the ICJ.  As a result of the factual basis presented to the ICJ, full weight was placed on the rights-infringement side; no weight was given to the security-military needs, and therefore the questions of the proportionality of the impingement or of the margin of appreciation were not discussed at all.  The result was the ICJ's conclusion that Israel is violating international law.  The different factual bases led to different legal conclusions.  This stands out especially in the case of those parts of the ICJ's opinion dealing with Qalqiliya.  On one side of the scale, the ICJ placed the severe impingement of the rights of Palestinians in Qalqiliya.  Even if we remove the imprecision of these figures, the remainder is sufficient to indicate a severe impingement of their rights.  On the other side of the scale, the ICJ did not place – due to the factual basis laid before it – any data regarding the security and military considerations.  It was not mentioned that Qalqiliya lies two kilometers from the Israeli city of Kfar Saba; that Qalqiliya served as a passage point to Israel for suicide bomber terrorists, primarily in the years 2002-2003, for the purpose of committing terrorist attacks inside of Israel; that the Trans-Israel highway (highway 6), whose users must be protected, passes right by the city; that the majority of the fence route on the western side of the city runs on the Green Line, and part of it even within Israel; that since the fence around Qalqiliya was built – including the wall on the western side which borders upon highway 6 – terrorist infiltrations in that area have ceased.

 

69.       The difference in the factual bases was affected by the difference between the proceedings which took place in the ICJ and the proceedings in The Beit Sourik Case (see Weston, at p. 24).  In the proceedings before the ICJ, the injured parties did not participate. Israel was not party to the proceedings.  There was no adversarial process, whose purpose is to establish the factual basis through a choice between contradictory factual figures.  The ICJ accepted the figures in the Secretary-General's report, and in the reports of the special rapporteurs, as objective factual figures.  The burden was not cast upon the parties to the proceedings, nor was it examined.  In contrast, the parties to the proceedings in The Beit Sourik Case stood before the Court.  An adversarial process took place.  The burden of establishing the factual basis before the court was cast upon the parties.  The parties' factual figures were examined and made to confront each other, as the factual basis which would determine the decision was established.  The proceedings themselves lacked strict formalities, and allowed the parties to make suggestions for alternative routes, which were examined by the other party, and the fence route was altered during the hearings themselves.  All these aspects had an effect on the legal conclusions reached by the ICJ and the Supreme Court of Israel in The Beit Sourik Case (see Y. Shany "Capacities and Inadequacies: a Look at the Two Separation Barrier Cases" 38 Isr. L. Rev. 230 (2005)).

 

70.       We would especially like to point out an important difference in the scope of examination.  Before the ICJ, the entire route of the fence was up for examination.  The factual basis which was laid before the ICJ (the Secretary-General's report and written statement, the reports of the special rapporteurs) did not analyze the different segments of the fence in a detailed fashion, except for a few examples, such as the fence around Qalqiliya.  The material submitted to the ICJ contains no specific mention of the injury to local population at each segment of the route.  We have already seen that this material contains no discussion of the security and military considerations behind the selection of the route, or of the process of rejecting various alternatives to it.  These circumstances cast an unbearable task upon the ICJ.  Thus, for example, expansive parts of the fence (approximately 153 km of the 763 km of the entire fence, which are approximately 20%) are adjacent to the Green Line (that is, less than 500 m away).  An additional 135 km – which are 17.7% of the route – are within a distance of between 500 m and 2000 m from the Green Line.  Between these parts of the route and the Green Line (the "seamline area") there are no Palestinian communities, nor is there agricultural land.  Nor are there Israeli communities in this area.  The only reason for establishing the route beyond the Green Line is a professional reason related to topography, the ability to control the immediate surroundings, and other similar military reasons.  Upon which rules of international law can it be said that such a route violates international law?  Other parts of the fence are close to the Green Line.  They separate Palestinian farmers and their lands, but the cultivated lands are most minimal.  Gates were built into the fence, which allow passage, when necessary, to the cultivated lands.  Can it be determined that this arrangement contradicts international law prima facie, without examining, in a detailed fashion, the injury to the farmers on the one hand, and the military necessity on the other?  Should the monetary compensation offered in each case, and the option of allocation of alternate land (as ruled in The Beit Sourik Case (Id., at p 860)) not be considered?  There are, of course, other segments of the fence, whose location lands a severe blow upon the local residents.  Each of these requires an exacting examination of the essence of the injury, of the various suggestions for reducing it, and of the security and military considerations.  None of this was done by the ICJ, and it could not have been done with the factual basis before the ICJ.   

 

71.       Of course, prima facie, the ICJ could have determined, that on the basis of the examination of the totality of the fence, it had reached the conclusion that the motivation behind its construction is political and not security-based, and that the intention of the government of Israel in erecting the fence was its desire to annex parts of the West Bank which lay on the "Israeli" side of the fences.  The ICJ did not, however, do so; nor was a factual basis placed before it, which would have enabled it to do so.  The ICJ came extremely close to such an approach, stating:

 

“Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature . . . it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated regime create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation” (paragraph. 121).

 

However, this statement – which expressed grave concerns – is not a positive finding that the fence is political, and that its objective is annexation.

 

72.       The method of the Supreme Court of Israel was different.  The Beit Sourik Case dealt with five segments of the separation fence, approximately forty kilometers long.  Other segments of the fence have been discussed by the Supreme Court in other petitions, which were examined by various panels of Supreme Court justices.  Since the construction of the separation fence, about 90 petitions have been submitted to the Supreme Court.  The hearing of 44 petitions has been completed.  In most of them the parties succeeded, after negotiations, and usually after amendments were made to the route as requested by the Palestinian petitioners, to reach a compromise, so that no legal decision on the merits was needed.  Approximately 43 petitions are still pending before the Court.  In most the arguments have been completed, and they are waiting for our decision regarding the effect of the Advisory Opinion of the ICJ upon the ruling of the Supreme Court of Israel.  They examine the legality of the route of the fence.  These petitions can be divided into three main types: the first type of petition is a petition by farmers for the impingement upon their rights caused by the fact that the separation fence separates them from their lands.  The Beit Sourik Case itself belongs to this type.  The second type is a petition regarding the large blocs of settlements, which in some instances create enclaves of communities which are cut off from their urban infrastructure, or impede Arab farmers' access to their lands.  The petition before us belongs to this type.  The third type includes petitions regarding the fence route around Jerusalem.

 

            5.         The Effect of the Advisory Opinion of the International Court of Justice at the Hague upon the Rulings in The Beit Sourik Case

 

73.       Our point of departure was that the basic normative foundation upon which the ICJ and the Supreme Court based their judgments is a common one.  Despite that, the two courts reached different conclusions.  The ICJ held, in its opinion, that the route of the wall contradicts international law, as a majority of it passes through the West Bank.  The Supreme Court in The Beit Sourik Case ruled in its judgment that a sweeping answer to the question of the legality of the fence according to international law should not be given, and that each segment of the fence route should be examined separately.  Against this background, it was decided in The Beit Sourik Case, that part of the route discussed in that petition sits well with international law and that part of it violates international law.  We asked ourselves: what is the explanation for this difference?  We answered that question by saying that the difference stems from the factual basis that was laid before the ICJ, which was different from that which was laid before the Court in The Beit Sourik Case.  We also noted that the difference in the model of proceedings also contributed to the different results.  Against this background, we must answer the following question: what is the effect the Advisory Opinion of the ICJ on the future approach of the Supreme Court on the question of the legality of the separation fence according to international law, as determined in The Beit Sourik Case?

 

74.       Our answer is as follows:  the Supreme Court of Israel shall give the full appropriate weight to the norms of international law, as developed and interpreted by the ICJ in its Advisory Opinion.  However, the ICJ's conclusion, based upon a factual basis different than the one before us, is not res judicata, and does not obligate the Supreme Court of Israel to rule that each and every segment of the fence violates international law.  The Israeli Court shall continue to examine each of the segments of the fence, as they are brought for its decision and according to its customary model of proceedings; it shall ask itself, regarding each and every segment, whether it represents a proportional balance between the security-military need and the rights of the local population.  If its answer regarding a particular segment of the fence is positive, it shall hold that that segment is legal.  If its answer is negative, it shall hold that that segment is not legal.  In doing so, the Court shall not ignore the entire picture; its decision will always regard each segment as a part of a whole.  Against the background of this normative approach – which is the approach set out in The Beit Sourik Case – we shall now turn to examining the legality of the separation fence in the Alfei Menashe enclave.

 

F.         The Separation Fence at the Alfei Menashe Enclave

 

            1.         The Enclave

 

75.       The Alfei Menashe enclave is an 11,000 dunam area (see the appendix to this judgment).  It includes Alfei Menashe (population 5650) and five Palestinian villages (Arab a-Ramadin (population approximately 180); Arab Abu Farde (population approximately 80); Wadi a-Rasha (population approximately 180); Ma'arat a-Dara (population approximately 250) and Hirbet Ras a-Tira (population approximately 400); total population of the five villages is approximately 1200).  The enclave is located on the "Israeli" side of the separation fence.  It is part of the seamline area.  The enclave and Israel are territorially contiguous, meeting at highway 55.  Exit from the enclave into the area, by car and foot, is through one crossing ("crossing 109") to Qalqiliya.  This crossing is open at all hours of the day.  The separation fence also includes three gates (the Ras a-Tira gate; the South Qalqiliya gate; and the Habla gate).  At first, we shall discuss petitioners' arguments and the state's response in detail.  Then, we shall examine the arguments and the answers to them according to the standards determined in The Beit Sourik Case.

 

            2.         Petitioners' Arguments

 

76.       Petitioners expand upon the severe damage to the fabric of life of the residents of the five Palestinian villages within the enclave.  These are small villages which are unable to provide necessary services such as employment, medical care, education, and community services by themselves.  Thus, for example, the schools attended by enclave residents are located in Palestinian communities outside the enclave, with the exception of the elementary school of Ras a-Tira and a-Daba.  The fence cuts the residents of the villages off from the Palestinian communities which provide them necessary services.  The fence traps the residents of the villages inside of an enclave cut off from the Palestinian population in the West Bank.  The residents of the villages are unable to enter a Palestinian community outside the enclave without passing through the gates in the fence or a checkpoint (crossing 109).  Residents who wish to travel from the villages of the enclave to the adjacent towns of Habla and Ras Atiyeh are forced to pass long and wearying roads, which require travel by car, just to get to a place which in the past was reachable by foot.  Petitioners note that the availability of cars for enclave residents, especially for women, is most minimal.

 

77.       According to petitioners, the enclave has caused mortal injury to all areas of life – freedom of movement; employment and commerce; health; education; family, community, and social ties; religious services; and more.  Almost all of the Palestinian residents of the enclave have lost their sources of income since the construction of the fence.  The fence cuts the residents of the villages off from pastures, hothouses, and agricultural lands.  The regime of permits has turned the enclave into a place that non residents do not enter.  The residents of the enclave are thus denied the possibility of holding social events in their villages.  As for the future, the fence has destined the five villages to economic, social, and cultural destruction. 

 

78.       Soon after the petition was filed, petitioners submitted an expert opinion on the subject of planning, prepared by the nonprofit society known as "Bimkom – Planners for Planning Rights," which works to strengthen the ties between civil and human rights and the Israeli planning system.  The expert opinion was prepared by four architects and urban planners.  They reached the conclusion that the current route of the fence critically injures the Palestinian population living in the Alfei Menashe enclave.  Prior to the construction of the fence, the Palestinian villages in the enclave relied upon the array of villages and cities in the Qalqiliya district and in the West Bank.  The fence route chopped the area into three enclaves (the Qalqiliya enclave, the Habla and Hirbet Ras Atiyeh enclave and the Alfei Menashe enclave which includes the five Palestinian villages), and caused immediate damage to the system of spatial interrelations which existed prior to construction of the fence.  The fence was constructed without any spatial planning logic.  The fence cuts off main roads and access roads, crosses through built areas, chops up contiguous cultivated agricultural lands, and separates villages from their agricultural lands.  As a result of the construction of the fence, two villages have even been cut off from the wells which provide them and their agricultural lands with water.  The fence and associated permit system make access to regional civil services very difficult, and damage economic potential and existing social structure.

 

79.       According to the expert opinion, the fence has a substantial effect on the Palestinian villages' continued functioning in all areas of life.  As far as economy and employment are concerned, hundreds of dunams of the villages and thousands of dunams of the cultivated agricultural lands, mostly olive groves, were expropriated for the construction of the fence.  The fence cut off farmers' access to markets in Habla and Qalqiliya.  It also decreased access to all sources of employment in the West Bank.  In the area of employment there is, therefore, a substantial rise in unemployment, and a trend of finding undesirable jobs requiring no skills in Alfei Menashe.  In the area of education, the fence makes students' access to schools in Habla and Ras Atiyeh very difficult, and within a year a substantial rise in dropout level was noted in the education system.  In the area of health, only partial and irregular health services are now provided in the villages.  The fence cut the villages off from health and medical services, and access of emergency vehicles from the Habla area has been cut off.  In terms of family and social ties as well, the fence's damage has been severe.  The permit regime cuts enclave residents off from their relatives and friends, from ceremonies and family events, and threatens to disenfranchise them of their status and connections in Palestinian society.  As time goes on, this is likely to lead to abandonment of the villages and the cessation of the present communities' existence.       

 

80.       Petitioners' legal argument is that the construction of the fence surrounding the Alfei Menashe enclave, built completely in the area, violates the principles of public international law and is illegal.  Petitioners' position is based upon two main pillars: ultra vires and lack of proportionality.  First it is contended that respondents have no authority to erect the fence around the enclave, both due to the lack of security necessity and due to the creation of de facto annexation of the enclave territory to the State of Israel.  The arguments on this issue rely, inter alia, upon the Advisory Opinion of the ICJ.  Petitioners further argue that the enclave was not created for military or national security reasons, and not even for the security needs of Alfei Menashe residents.  The construction of the fence around the enclave was intended to put Alfei Menashe west of the fence, and make it territorially contiguous to the State of Israel.  It is an act whose entire purpose is to move the effective border of the state, and it is not legal according to the laws of belligerent occupation.  According to petitioners, the decision to erect the fence on the present route was made under pressure from the residents of Alfei Menashe and of the residents of the Matan community, who requested that a road alternative to highway 55 not be built near it.  According to the original plan, highway 55 was to be left east of the fence, and thus security officials decided to pave a new road to connect Alfei Menashe with Israel via the Matan community.  However, in light of Matan residents' opposition to the new road, the fence route was altered so that highway 55 would be included in the enclave.  Petitioners contend that the fence does not serve a military need.  Military necessity does not include defense of settlement residents.  Petitioners argue that leaving the Palestinian villages west of the fence does not fit the military need, as presented by army officials.  The fence creates a long term change, whose meaning is practical annexation of the lands in the enclave to an area in absolute control of the State of Israel.  Cutting the ties between the residents living in the enclave and those living beyond it creates a new geopolitical entity.

 

81.       Petitioners' second argument is that the enclave – according to the route upon which it was created – is disproportionate.  The enclave creates a wide scale impingement upon the basic rights of protected civilians.  It seriously impinges upon property rights, freedom of movement, and rights to make a living, to education, to health, to food, to dignity and honor, and to equality.  International law, like Israeli law, includes the condition that impingement of rights be proportionate.  Petitioners add that international human rights law also applies to the petition, and that the prohibitions upon violation of petitioners' basic rights flow from it as well.  Petitioners contend that the fence route around the enclave causes damage which is disproportionate, both due to the fact that it is unnecessary for achieving its declared objective, and due to the lack of any serious interest which would justify it.  It is contended that the fence route around the enclave does not satisfy any of the three subtests of proportionality.  The first subtest (fit between the injury and the objective) is not satisfied, since there is no rational connection between construction of the fence and an Israeli security goal.  The second subtest (the least harmful means) is not satisfied, as it is possible to realize the legitimate objective of defending the residents of Israel by pushing the fence back to the Green Line.  Petitioners claim that a fence along the Green Line would serve the security objectives better, since it would be much shorter, straight and not winding, and would leave a considerable Palestinian population east of the fence.  The third subtest (proportionality in the strict sense) is not satisfied, since the impingement upon petitioners' rights is not proportional to the danger which it is intended to confront.  The injury to the residents of the villages is all-encompassing; moving the fence to the Green Line, on the other hand, will not bring about any decrease in security. 

 

82.       Petitioners' third argument is directed against the legal regime put into force in the enclave, which requires non Israeli residents to hold permits.  Petitioners contend that the legal regime in the seamline area is a discriminatory regime based upon nationality, and is therefore to be annulled.  The enclave regime creates legal classes according to ethnicity, and only obfuscates itself with security claims.  The very existence of the permit regime is a shameful and illegal legal situation, of formalized discrimination on the basis of ethnic-national background.

 

83.       The remedy requested by petitioners is that the separation fence be dismantled and moved to the Green Line.  To the extent that Alfei Menashe needs a separation fence, such a fence can be built around that community, on the basis of the existing fence around it.  In any case – so argue petitioners – there is no justification for including the enclave villages inside of it.

 

            3. The State's Response

 

84.       In its first response to the petition (of September 9 2004), respondents announced that as a result of the judgment in The Beit Sourik Case, staff work is being done in order to examine the patterns of life in the seamline area.   They announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area.  Improvements in the arrangements will decrease the injury to the residents and affect the balancing point between the rights of the residents and the security needs.  Respondents requested that the proceedings in the petition be stayed, in order to allow them to formulate their position.  In these circumstances, it was contended that the petition, as a petition demanding the dismantling of the fence, is prima facie an early petition, and that it is appropriate to wait for the formulation of final decisions.  However, respondents emphasized that the decisive need for the existence of a fence in this area leads to the conclusion that, in any case, no order to dismantle the fence in the Alfei Menashe area should be issued.

 

85.       In a supplementary statement by respondents (of December 5 2004), they raised a number of preliminary arguments for rejecting the petition.  The first argument claimed that the petition suffered from severe laches (delay).  According to respondents, petitioners' request to dismantle the fence a year and a half after its construction was completed, when its dismantling will cause severe damage to respondents, suffers from most serious laches.  Petitioners had many opportunities to voice their claims against the route.  They were served the land seizure orders at the end of 2002 and the beginning of 2003, and they had the opportunity to submit appeals.  Regarding the objective element of the law of laches, dismantling the fence will cause most severe security damage, as well as severe economic damage.  On the other hand, the injury to petitioners is not as severe, as it can be moderated and minimized to a large extent by various improvements which are being made, and will yet be made, by respondents.  The second preliminary argument raised by respondents regards the petition's character as a "public petition," at a time when there are specific potential petitioners who refrained from petitioning.  Petitioners are residents of two of the five villages in the enclave.  From the petition itself it appears that residents of the other three villages refused to join the petitioners.  The specific petitioners, as well as the Association for Civil Rights in Israel (petitioner no. 7) are not authorized to speak in the name of all of the enclave residents.  Third, it is argued that the petition should be preliminarily rejected due to a lack of prior plea directly to respondents.  Although the Association for Civil Rights in Israel wrote to the Prime Minister and the Minister of Defense prior to the petition, requesting that they order alteration of the fence route at the segment under discussion, these pleas were most compact, and most of the arguments in the petition weren't mentioned in them at all.

 

86.       On the merits, respondents argue that there is no justification for altering the Alfei Menashe route.  The fence indeed changed the reality of life for the residents of the villages left on the Israeli side of the fence.  This stems from the decisive security need to defend the citizens of Israel against terrorist attacks.  The injury to the residents of the villages is proportionate, considering the decisive security need to leave the fence where it is.  Respondents noted that just prior to construction of the fence, the military commander's civil administration collected data regarding the enclave residents and their way of life, and that on the basis of the collected data, they issued permits to the residents of the enclave which enable them to live in the enclave and move to the area from it, and back.  Today, there are approximately 1200 permits in force, held by the residents of the enclave.  Respondents informed us that the permits are soon to be replaced with permanent identity cards for seamline area residents, which will be valid as long as the declaration is in force.  Approximately 1065 entrance permits have also been issued, for workers of international organizations, infrastructure workers, traders, educators, medical services, and similar purposes.  The Commander of IDF Forces in the area recently decided that the various permits will be replaced by a uniform permit, valid for a two year period (the current permits are valid for a period up to three months).  The permits allow entry into the enclave through four gates.

 

87.  In their response, respondents discussed a list of infrastructure and logistic improvements intended to relieve the situation of the residents of the villages to the extent possible.  First, crossing 109, located at the north end of the enclave near the eastern entrance to Qalqiliya, is open constantly, all day long.  Permanently on site is a representative of the coordination and liaison administration, whose role is to handle problems which may arise.  Second, the eastern entrance to Qalqiliya (DCO Qalqiliya) is open to free movement, and at present, no checkpoint operates there (except in the case of a security alert).  Thus, those wishing to enter or exit Qalqiliya are spared the prolonged wait at the city entrance.  Exit from the enclave through passage 109 and through the entrance into Qalqiliya are thus free.  Third, close to the time the petition was submitted, an underpass connecting Habla to Qalqiliya was opened under highway 55.  Fourth, The Commander of IDF Forces decided to keep the agricultural fence at Ras a-Tira, which connects the enclave to Habla and Ras Atiyeh, open longer, so that the gate will be open to travel by foot and car during most hours of the day.  For that purpose, a specialized military force will be allocated, which will also ensure more precise opening hours of the two additional agricultural gates.  Fifth, respondents are running transportation, funded by the civil authority, of all pupils living in the enclave who go to school beyond it.  Sixth, a permanent staff of doctors, equipped with entrance permits, visits the enclave villages through crossing 109, according to a regular schedule.  In the case that urgent medical care is needed, it is possible to travel to Qalqiliya and other areas through crossing 109, which is open at all hours of the day.  Seventh, the coordination and liaison administration, in coordination with an international organization by the name of ANERA, commenced a project to connect the villages of Ras a-Tira and Hirbet a-Daba to the water system.  The rest of the villages also enjoy regular supply of water.  Eighth, approval has been given, in principle, for a plan to improve the access road from the villages to crossing 109 and for a plan to improve the road which goes along highway 55, in order to make it passable and safe for wagons.       

 

88.       Respondents further noted in their response that most of the enclave residents' agricultural lands are inside the enclave itself, and that the fence does not have any effect on residents' access to them.  Farmers whose lands are located in the Habla and Ras Atiyeh area are able to reach their lands through the agricultural fences.  Moreover, a large part of enclave residents make their living in the community of Alfei Menashe.  The possibility of working in Alfei Menashe has not only not been decreased by the construction of the fence; it has been improved.

 

89.       In respondents' supplementary response (of June 19 2005), respondents presented their general position regarding the construction of the security fence on lands in the area, including such construction for the purpose of protecting the Israeli communities in the area.  Respondents also presented their position regarding the effect of the Advisory Opinion of the International Court of Justice at the Hague (of July 9 2004) upon the petition before us.  Regarding the state's position on the implications of the Advisory Opinion on the issue of the fence, respondents referred to their position in HCJ 4815/04 and HCJ 4938/04 (discussing the separation fence at the village of Shukba and the village of Budrus).  We discussed this position in the part of our present judgment which was devoted to the Advisory Opinion of the International Court of Justice at the Hague.

 

90.       The state's position is that the construction of the fence is a security act par excellence.  It is intended to provide a temporary solution to the terrorism offensive, both in Israel and in the area.  It is intended to provide a solution to existing and future threats of terrorism, until it will be possible to reach a stable and reliable political arrangement.  Respondents clarify that the contacts underway between Israel and the new Palestinian Authority leadership do not remove the need for construction and completion of the obstacle.  According to respondents, the present route of the obstacle is temporary.  The seizure orders, issued for the purpose of obstacle construction within the area, are restricted to a definite period of a few years.  The obstacle is not a permanent one.  It is intended to protect the residents of Israeli communities in the area as well.  The obstacle itself provides defense not only to the community itself, but also to the access roads to it and to its surroundings.  However, the selected route is not the ideal route from a security standpoint.  That is the case, due to the duty to protect the conflicting interests of the Palestinian residents, who are harmed by the construction of the obstacle due to seizure of lands, harm to agriculture, restrictions of movement, and impediment of daily life.  Respondents recognize this harm, and are working to minimize it to the extent possible, both at the time of construction of the obstacle and by protecting the residents' fabric of life after its construction.

 

91.       Respondents claim that the military commander is authorized to defend the Israeli communities in the area both pursuant to international law and pursuant to internal Israeli administrative and constitutional law.  Israel's right – which is also her duty – to defend her citizens, is the fundamental legal source which grants it the right and the duty to defend its citizens living in the area.  Respondents are of the opinion that the construction of the obstacle satisfies the restrictions in the law of belligerent occupation.  The military commander is required, pursuant to rules of international law, to protect all present in the area held under belligerent occupation, and that includes Israeli citizens living in the area or traveling on the roads in the area.  The duty of the military commander to protect those present in the occupied territory is not limited to those defined as "protected" in The Fourth Geneva Convention.  This duty is not conditional upon the legal status of the Israeli communities in the area in terms of international law, which will be decided in the permanent status agreement between Israel and the Palestinian Authority.  Respondents note that the political agreements between Israelis and Palestinians also leave the authority to protect the Israeli citizens in the area in the hands of the State of Israel, until the issue is arranged in the permanent status agreement.  The internal security legislation in the area also reflects Israel's responsibility for the security of the Israelis in the area.  On this point, respondents refer to §6 of the Interim Agreement Implementation Proclamation (Judea and Samaria)(No. 7).  An additional source of the duty to protect the Israelis in the area is the Israeli administrative law and the Basic Laws of the State of Israel.  The state claims that the military commander is obligated to protect the basic rights of Israeli citizens (both those pursuant to the Basic Laws and those stemming from "common law").  Exercise of the authority must be proportionate.  The military commander is therefore authorized to protect Israeli citizens in the area, and even to impinge upon other rights for that purpose, as long as the impingement is a proportional one which stems exclusively from the security purpose.        

 

 

            4.         Petitioners' Response to Respondents' Response

 

92.       Petitioners informed us, in their response, that the planned alterations to the enclave do not provide a real solution to the hardships which enclave residents confront.  Most of the changes are cosmetic, and a few of them are of low significance.  The most significant change is the decision to lengthen the opening ours of the Ras a-Tira gate, but at the time the response was submitted, it had not yet been implemented.  Petitioners ask us to reject all of the preliminary arguments raised by respondents.  They argue that there is no justification for rejecting the petition as a "public petition".  Among petitioners are private people, and the damage described in the petition is caused to them personally, in addition to the similar damage caused to their neighbors.  Regarding lack of prior direct plea, petitioners state that petitioner no. 7's letters (of March 10 2004 and July 19 2004) contained the main arguments against the route, and these pleas are to be seen as worthy ones.  Petitioners also ask that we reject the argument regarding laches.  There was no subjective delay, as the petitioners' awareness of the damage came about only after daily life in the enclave had entered a regular pattern.  Regarding objective delay, the only damage in this case is economic damage, and it is lesser in severity and weight than the violations of basic rights and of the rule of law.

 

            5.         The Alfei Menashe Local Council's Response

 

93.       The Alfei Menashe Local Council was joined as a respondent to the petition, at its own request.  It argues that the fence does not harm the Palestinian residents, and certainly not in the way described by petitioners.  Regarding the security aspect, the fence should be left in its present place, where it is able to provide security for the residents of Alfei Menashe and harms the Palestinian residents only minimally.  The Local Council wished to present a different picture regarding the reality of life for the Palestinian residents in the enclave, especially that of the residents of the a-Ramadin tribe.  It was claimed that Alfei Menashe is an honorable source of employment for many of the residents of the villages.  Employment problems, to the extent that they exist, are not the result of the fence or its location.  It was further claimed that the issue of movement from the village of Habla and the city of Qalqiliya, and that of medical services, are not a problem for the members of the a-Ramadin tribe.

           

            6. The Outline of the Discussion of the Legality of the Alfei Menashe Enclave

 

94.       We shall commence our discussion of the legality of the Alfei Menashe enclave with an examination of the state's preliminary arguments.  Then, we shall proceed to examine the question whether the construction of the separation fence around the enclave was intra vires.  This discussion will examine the reasons behind the construction of the fence generally, and the route determined for it at Alfei Menashe, specifically.  After examining the question of authority, we shall proceed to examine the scope of the damage to the local residents.  Against this background we shall examine whether this damage is proportional.  We shall conclude our discussion with an examination of the appropriate remedies as a result of the legal analysis.

 

            7.         The Preliminary Arguments

 

95.       In its response, the state raised three preliminary arguments.  The first is a claim of laches (delay) in petitioning the Supreme Court.  The state argues that construction of the separation fence in the Alfei Menashe enclave was concluded approximately a year and a half prior to the filing of the petition.  Petitioners could have attacked the land seizure orders which were served to them at the end of 2002 and the beginning of 2003.  At the same time, surveys along the planned route were held for the residents, and they were given the opportunity to appeal the route.  Even after that – previous to or during fence construction work – it was possible to petition this Court.  In petitioners' response to the state's response, petitioners state that their awareness of the damage came about only after daily life in the enclave entered its regular pattern.  In any case, due to the severe affront to the rule of law, the laches claim should not be accepted.  In our opinion, petitioners are right.  We accept their claim that they could not assess the scope of the impingement upon their rights before life in the Alfei Menashe enclave entered a regular pattern.  Only when the permit regime had been formulated; only when the opening and closing hours of the gates had been set; only when the cutoff from health, education, and commerce institutions in Qalqiliya and in Habla began to take their toll – only then was it possible to know what the scope of the damage was.  In fact, even at the time the petition was filed, the pattern of life in the enclave had not yet reached its final format.  Respondents themselves announced that there is a most reasonable possibility that there will be alterations to the arrangements in the seamline area, and in that context they even claimed that "the petition is early".  In this state of affairs, the fact that petitioners waited for the formulation of the regular pattern of life in the seamline area does not provide a basis for a claim of laches.

 

96.       Respondents' second preliminary argument regards petitioners' standing, as it arises from the petition itself.  Petitioners no. 1-3 are residents of Ras a-Tira, and petitioners no. 4-6 are residents of Wadi a-Rasha.  Petitioner no. 7 is the Association for Civil Rights in Israel.  The state argues that the petition shows that the three other villages (Hirbet a-Daba, Arab a-Ramadin, and Arab Abu Farda) refused, for undisclosed reasons, to join as petitioners in the petition.  Under these circumstances, it is doubtful that petitioners represent all of the residents of the two villages.  They certainly do not represent the other three villages.  The petition regarding the latter villages is a public petition.  The state contends that such a petition should not be allowed, as individual potential petitioners exist, yet refrain, for undisclosed reasons, from petitioning the Court.  We have no need to examine this argument, seeing as petitioners' counsel noted before us in oral argument that he possesses a letter (of March 30 2005) written by the five council heads of the enclave villages.  In this letter, they authorize counsel to act on their behalves in the petition before us.  Thus this issue was solved.  We can therefore leave the open the question whether it was impossible to suffice ourselves with the petitioners before us, for further hearing of the petition.

 

97.       The third preliminary argument is that petitioners did not make a direct plea to respondents before their petition to the Court.  This argument is rejected.  As it appears from the material before us, petitioner no. 7 (The Association for Civil Rights in Israel) wrote (on March 10 2004 and July 19 2004) to the Prime Minister and the Minister of Defense.  In these pleas, that petitioner raised the main points of its opposition to the fence route at the Alfei Menashe enclave, emphasizing the severe injury to the residents of the villages (in the first letter) and the disproportionate level of injury (in the second letter, written after The Beit Sourik Case).  This is sufficient to satisfy the direct plea requirement.

 

            8. The Authority to Erect the Separation Fence in General, and at the Alfei Menashe Enclave, Specifically

 

98.       The military commander is authorized to order the construction of the separation fence in the Judea and Samaria area, if the reason behind it is a security-military one.  He is not authorized to order the construction of the fence, if the reason behind it is a political one (see The Beit Sourik Case, at p. 828).  In The Beit Sourik Case we examined - using the legal tools at our disposal - the motivation behind the government decision.  We reached the conclusion, on the basis of the data before us, that the motivation behind construction of the fence is not political.  That is our conclusion in the petition before us as well.  Here as well, we have been persuaded that the decision to erect the fence was made in light of the reality of severe terrorism which has plagued Israel since September 2000.  Justice D. Beinisch discussed this in a case dealing with the northeast segment of the fence, in the area surrounding the territory discussed in this petition:

 

"The decision to erect the separation fence was made on April 14 2002 by the Council of Ministers on National Security, in order 'to improve and reinforce the operational assessments and capabilities in the framework of confronting terrorism, and in order to frustrate, obstruct, and prevent infiltration of terrorism from Judea and Samaria into Israel'.  This decision was approved after a government debate on June 23 2002, in which the decision was made to erect a 116 kilometer long obstacle, particularly in sensitive areas through which terrorists – sowing destruction and blood – often passed in order to commit terrorist attacks. The final route of the obstacle was selected by security and military officials, in cooperation with relevant professionals, and was approved by the Committee of Ministers on National Security on August 14 2002.

 

The seamline area is intended to block passage of suicide bombers and other terrorists into the State of Israel.  According to the view of the security and military officials responsible for this subject, the creation of a seamline area is a central component of the fight against terrorism originating in the Judea and Samaria area.  To the extent that the obstacle will not create a hermetic seal against terrorist infiltration, the purpose of the obstacle is to delay the infiltration into Israel for a period of time which might allow security forces to reach the point of infiltration, and thus create a geographic security area which will allow the combat forces to pursue the terrorists before they enter the state.

 

There is no doubt that the creation of a seamline area injures the Palestinian residents in that area.  Agricultural land is being and will be seized for construction of the obstacle, which is liable to harm residents' ability to utilize their lands; their access to the land is also liable to be impeded.  Such harm is a necessity of the hour, and it is a result of the combat situation in the area which has continued for more than two years – a situation which has cost many human lives" (HCJ 8172/02 Abtasam Muhammad Ibrahim v. The Commander of IDF Forces in the West Bank (unpublished)).

 

99.       We asked state's counsel why the separation fence cannot be built on the Green Line.  We understood from the state's response, that security and military considerations prevented that possibility.  Their response was based upon three considerations:  first, the Green Line "passes under a mountain ridge located east of the line.  The line is crossed by many east-west riverbeds.  In many of its segments, there is thick vegetation.  This topography does not allow attainment of the obstacle's goals by a route which passes only within Israel.  Erecting the obstacle exactly on the border line of the Judea and Samaria area does not allow for defense of the soldiers patrolling it, who in many cases would be in disadvantaged topographic positions.  Nor does such a route allow surveillance of the Judea and Samaria area, and would leave IDF forces in a situation of operational disadvantage, in comparison with terrorists waiting on the other side of the obstacle" (paragraph 64 of the state's response of February 23 2005); second, "at many segments, Israeli communities and other important locations inside of Israeli territory are in close proximity to the boundary of the Judea and Samaria area.  For example, the communities of Kochav Yair, Tzur Yigal, Matan, Maccabim, Mevasseret Tzion, the neighborhood of Ramot in Jerusalem, et cetera.  Laying the route inside of Israel would require constructing the obstacle on the fences of these communities and locations with no alert zone to allow security forces to arrive prior to infiltration.  Such an alert zone is necessary to allow hitting terrorists liable to cross the obstacle, before they commit their attack.  Such a route would allow sabotage of locations by way of gunfire from beyond the obstacle (Id., id.); third, the separation fence is intended to protect Israelis living in Judea and Samaria as well.  The fence is also intended to protect other important locations, such as roads and high voltage lines.

 

100.     On the basis of all the material at our disposal, we have reached the conclusion that the reason behind the decision to erect the fence is a security consideration, of preventing terrorist infiltration into the State of Israel and into the Israeli communities in the area.  The separation fence is a central security component in Israel's fight against Palestinian terrorism.  The fence is inherently temporary.  The seizure orders issued in order to erect the fence are limited to a definite period of a few years.  So it also appears from the government decisions, whose reliability we have no basis for doubting, including the decision of February 20 2005, which brought about a change in the separation fence route as a result of the judgment in The Beit Sourik Case.  This change was especially apparent in phases C and D of the separation fence, which had not yet been constructed, or was in stages of construction.  So it also appeared from the affidavits submitted to us and from the rest of the material at our disposal.  Thus, for example, according to the figures of the General Security Service, in the (approximately) 34 months between the outbreak of the armed conflict and until the completion of the first part of the separation fence, the terrorist infrastructure committed 73 mass murder attacks in the Samaria area, in which 293 Israelis were killed, and 1950 injured.  Since the completion of the separation fence – that is, the year between August 2003 and August 2004 – the terrorist infrastructure succeeded in committing five mass murder attacks, in which 28 Israelis were killed and 81 injured.  Comparison between the year prior to commencement of work on the separation fence (September 2001 – July 2002) and the year after construction of the fence (August 2003 – 2004) indicates an 84% drop in the number of killed and a 92% drop in the number of wounded.  The respondents brought to our attention an example of the security efficacy of the separation fence.  The Islamic Jihad organization wished to detonate a suicide bomber from the Jenin area at a school in Yokneam or Afula.  The suicide bomber and his guide left Jenin in the early morning, and intended to reach Wadi Ara, and from there, Afula or Yokneam.  In the pre-separation fence era the terrorists' job was easy.  The seamline area was wide open, and one could easily reach Wadi Ara.  This route is now sealed.  Therefore, the terrorist had to travel to Wadi Ara through a much longer route, through an area where the separation fence had not yet been constructed, a detour which lengthened the route from 27 km to 105 km.  The long detour allowed the security forces to gather intelligence, arrange the forces and locate the two terrorists en route.  After they were caught, the explosive belt was located, and the attack was avoided.  This is only one of various examples brought to our attention.  They all indicate the security importance of the fence and the security benefit which results from its construction. 

 

101.     Such is the case regarding the separation fence generally.  Such is also the case regarding the separation fence route around the Alfei Menashe enclave.  The decision regarding that segment of the fence was made by the government on June 23 2002.  It is a part of phase A of the separation fence.  It appears, from the interrogation of various terrorists from Samaria – so we were informed by respondents' affidavit (paragraph 14) – that the separation fence in this area indeed provides a significant obstacle which affects the ability of the terrorist infrastructure in Samaria to penetrate terrorists into Israel.  It also appears from the interrogations that, due to the existence of the obstacle, terrorist organizations are forced to seek alternative ways of slipping terrorists into Israel, through areas in which the obstacle has not yet been built, such as the Judea area.  We examined the separation fence at the Alfei Menashe area.  We received detailed explanations regarding the route of the fence.  We have reached the conclusion that the considerations behind the determined route are security considerations.  It is not a political consideration which lies behind the fence route at the Alfei Menashe enclave, rather the need to protect the well being and security of the Israelis (those in Israel and those living in Alfei Menashe, as well as those wishing to travel from Alfei Menashe to Israel and those wishing to travel from Israel to Alfei Menashe).  Our conclusion, therefore, is that the decision to erect the separation fence at the Alfei Menashe enclave was made within the authority granted to the military commander.  We shall now proceed to examination of the question whether the authority granted to the military commander to erect the security fence has been exercised proportionately.  We shall deal first with the fabric of life in the Alfei Menashe enclave.  Then we shall examine whether the injury to the local residents' lives is proportionate.

 

 

            9.         The Scope of the Injury to the Local Residents

 

102.     Respondents accept that "the security fence erected in the Alfei Menashe area altered the reality of life for the residents of the villages west of the fence" (paragraph 44 of the supplementary statement of December 5 2004).  There is disagreement between petitioners and respondents regarding the scope of this injury.  We shall discuss a number of central components of the fabric of life, including education, health, employment, movement, and social ties.

 

103.     Petitioners claim that most of the children in the enclave villages attend the elementary, middle, and high schools located in Habla and Ras a-Atiyeh, that is to say, on the other side of the separation fence.  Prior to construction of the fence, the children were driven to school by their parents.  Some of the children (from the villages adjacent to Habla) even walked to school by foot.  Now, in order to reach school, they must pass through the gates in the fence.  Respondents informed us, regarding this issue, that the civil administration funds regular transportation of all the pupils from the enclave villages to school and back.  Of course, parents cannot reach their children during school hours, and the children cannot return to their villages on their own.

 

104.     There are no hospitals or clinics in the enclave villages.  Medical services were previously provided in Qalqiliya and Habla.  There is a government hospital in Shchem (Nablus).  Petitioners argued before us that prior to construction of the fence, doctors from Qalqiliya or Habla would visit the villages, and village residents would travel to them to Qalqiliya or Habla, within a few minutes.  After the construction of the separation fence, one must prearrange a visit with a doctor, who must pass through one of the fences, during fence opening hours.  There is no solution in the case of an urgent medical situation.  Entrance by ambulances from Qalqiliya or Habla requires coordination which takes many hours.  In their response, respondents state that permits have been issued to a permanent staff of doctors, who visit the enclave villages according to a regular schedule.  Ambulances enter on a basis of need, through coordination with a coordination officer available 24 hours a day. 

 

105.     Petitioners claim that the construction of the separation fence had a severe effect upon the employment status of the residents of the enclave villages.  About ten percent of the lands of the village of Ras a-Tira are on the other side of the fence.  Eight dunams of hothouses belonging to residents of the village of Wadi a-Rasha are located on the other side of the separation fence.  The residents of the village of Arab a-Ramadin make their living primarily from growing sheep.  The fence separates the village and its pasture grounds.  The residents of the village of a-Daba make their living from agriculture (production of olive oil, and vegetable and other seasonal crop growing).  The fence separates the village from its agricultural lands.  The residents of the village of Abu-Farda made their living from cattle and goat commerce.  After construction of the fence, the village was cut off from the pasture grounds and the customers, who are unable to reach it.  The residents of the village had no choice but to sell the cattle.  Some residents of the villages worked as Palestinian Authority officials in Qalqiliya.  Due to the separation fence, they have difficulty reaching their place of work.  Many of the workers who worked in agriculture lost their jobs, due to their inability to reach their jobs at the times necessary for agriculture.  They have found jobs as workers in Alfei Menashe.  In their response, respondents mention that the residents of the villages are able to get to the cities and villages of the West Bank through the crossing and gates in the separation fence.  Farmers can pass through the agricultural gates at Habla and Ras a-Tira.  Respondents add that most of the agricultural lands of enclave residents are located within the enclave itself.  A significant part of the families living in the villages of the enclave make their living from work in the Alfei Menashe community.

 

106.     Petitioners claim that the separation fence severely damages the ties between the enclave villages and Qalqiliya and Habla.  Prior to the construction of the fence, it was possible to reach Qalqiliya within a few minutes.  After construction of the fence, and resulting from the need to pass through the gates, the journey takes many hours.  Moreover, a permit to pass through the gates by car is granted only to a car owner who is a resident of the enclave.  Relatives and friends are not allowed to receive a permit.  Most residents of the villages have no car of their own, and as a result – and due to fact that one can not be assisted by the car of a relative or friend – most residents of the villages are bound to their villages.  This also causes damage – regarding the village of Arab a-Ramadin – to religious services.  There is no mosque in that village.  The residents of the village used to pray in the mosque in Habla, which was walking distance from the village.  The fence now separates the village from the mosque.  Considering the fact that there are only five cars in the village, residents of the village have no practical possibility of attending prayer on Fridays and holidays.  In addition, the fence separates the residents of the villages from their relatives and friends.  It is difficult to invite guests to various ceremonies (like weddings and funerals), as entry requires a permit, which is not given at all, or given only a long time after the request date. 

 

107.     Petitioners argue that the separation fence has brought financial and social destruction to the Arab residents of the Alfei Menashe enclave.  It has created a cutoff between the residents and their agricultural lands and all the services necessary for normal life.  Petitioners contend that "due to the construction of the fence, the lives of hundreds of people have turned into miserable lives, sentenced to a economic, social, and cultural withering" (paragraph 4 of the petition).  Petitioners claim that the residents' freedom of movement, and rights to family life, health, education, equality, subsistence, and human dignity and respect have been impinged upon.  These impingements are not proportionate, and legally, they are destined to be annulled.

 

108.     Respondents recognize that the separation fence impinges upon the rights of the Arab residents of the Alfei Menashe enclave.  However, respondents' position is that the general regime in practice in the seamline area, and the new arrangements regarding crossings and gates, have generally turned the injury to the Palestinians, and specifically to the residents of the villages in the enclave, into proportionate ones.  On this subject, we were informed that in July 2004 the declaration was amended, so that permanent residents of the seamline areas were issued a "permanent resident card".  The holder of such a card needs not hold a permit in order to enter into the seamline area or to stay in it.  In order to preserve the fabric of life in the seamline area, checkpoints, allowing passage from one part of the separation fence to the other, have been established.  The checkpoints are manned every day of the year, all day long.  In addition, the agricultural fences have been opened, allowing farmers to pass from their place of residence to their fields.  The gates are open three times a day, for regular, published periods of time.  When these times are insufficient, they can be extended.  The gates are open for a longer time during periods of intensive agricultural cultivation, like during the olive picking season.

 

109.     In the separation fence at the Alfei Menashe enclave there are one crossing and three gates.  The crossing ("crossing 109") is open at all hours of the night and day, every day of the year.  Enclave residents can pass through it, after a security check, by foot or by car, to Qalqiliya and all other parts of Judea and Samaria, whether for employment purposes or for any other reason.  From Qalqiliya, it is possible to continue on to Judea and Samaria with no additional checkpoint.  It should also be mentioned that a new underpass connecting Qalqiliya to Habla has been opened.  It passes under highway 55, which leads to Alfei Menashe.  Movement through this underpass is unrestricted.  In addition to the underpass, there are three gates in the enclave: the Ras a-Tira gate, the Habla gate, and the South Qalqiliya gate.  The Ras a-Tira gate connects the enclave to Habla and to Ras a-Atiyeh.  It was decided that it would be open from one hour after sunrise until one hour before sunset.  Both other gates are open three times a day for one hour.  The farmers can reach their lands through these gates.

 

            10.       The Proportionality of the Injury to the Local Residents

 

110.     Is the injury to the residents of the enclave villages proportionate?  According to the caselaw of this Court – and in the footsteps of comparative law – proportionality is tested according to three subtests.  The first subtest holds that the injury is proportionate only if there is a rational connection between the desired objective and the means being used to achieve that objective.  The second subtest determines that the injury is proportionate only if there is no other less injurious means which can achieve the desired objective.  The third subtest holds that the injury is proportionate only if the impingement upon human rights is of appropriate proportion to the benefit reaped from it.  We applied this standard in The Beit Sourik Case.  Is it satisfied in the case before us?

 

111.     Petitioners contend that the first subtest (rational connection) is not satisfied in the Alfei Menashe enclave.  That is since the current route "annexes, de facto, the residents of the five villages that found themselves in the enclave, into Israel; and instead of creating the that 'separation' (which is, to our understanding, the essence of the fence's security doctrine), it creates a reality in which hundreds of Palestinians find themselves west of the fence, without any checkpoint or gate between them and the cities of Israel.  Therefore, it is difficult to see how the impingement upon the rights of the residents of the villages promotes the security of the State of Israel, of the IDF, or even of Alfei Menashe, none of which are separated from the residents of the villages; au contraire" (paragraphs 140-141 of the petition).  We cannot accept this argument.  The separation fence creates a separation between terrorists and Israelis (in Israel and in the area), and from that standpoint, the required rational connection exists between the objective and the means for its attainment.

 

112.     Is the second subtest (the least injurious means) satisfied?  Is it possible to ensure the security of Israelis through a different fence route, whose impingement upon the rights of the local residents would be a lesser one?  Petitioners answer this question in the affirmative.  According to their argument, it is possible to protect the Israelis through a fence constructed on the Green Line. We cannot accept this argument. In their arguments before us, respondents correctly noted that construction of the separation fence on the Green Line would leave Alfei Menashe on the eastern side of the fence.  It would be left vulnerable to terrorist attacks from Qalqiliya, Habla, and the remaining cities and villages of Samaria.  Movement from it to Israel and back would be vulnerable to acts of terrorism.  Indeed, any route of the fence must take into account the need to provide security for the 5650 Israeli residents of Alfei Menashe.

 

113.     Against this background arises the question whether the security objective behind the security fence could not be attained by changing the fence route such that the new route would encircle Alfei Menashe, but would leave the five villages of the enclave outside of the fence.  Such a route would create a natural link between the villages of the enclave and Qalqiliya and Habla.  It would create a link to the array of civil services which were provided to the residents prior to the construction of the fence.  Most of the injuries to the residents of the villages would be avoided.  Indeed, the lives of the residents under to the present route are difficult.  The enclave creates a chokehold around the villages.  It seriously damages the entire fabric of life.  The alteration to the route, which will remove the villages from the enclave, will reduce the injury to the local residents to a large extent.  If it is not possible to remove all five villages from the enclave, is it possible for most of them to be removed from it?  Indeed, based upon the factual basis as presented to us, the existing route of the fence seems strange.  We shall begin with the southwest part of the enclave.  We are by no means persuaded that there is a decisive security-military reason for setting the fence route where it presently is.  Why is it not possible to change the route in a way that the three villages in this part (Wadi a-Rasha, Ma'arat a-Daba, and Hirbet Ras a-Tira), or most of them, remain outside of the fenced enclave?  There is a planning scheme, which has been filed, for the development of Alfei Menashe in the direction of the southwestern part of the enclave.  But as Mr. Tirza, who presented the enclave map to us, stated before us, that is not a consideration which should be taken into account.  We shall now turn to the northern and northwestern part of the enclave.  Why should the villages of Arab a-Ramadin and Arab Abu-Farde not remain outside of the fence?  A main consideration in this issue might be the need to defend highway 55, which connects Alfei Menashe to Israel.  On this issue, Mr. Tirza noted that the location of highway 55 raises security problems.  Israelis have been shot on it from the direction of Qalqiliya.  We learned from the material before us, that according to the original plan, the segment of highway 55 which connects Alfei Menashe to Israel was to be cancelled.  Instead, a new road was supposed to be paved, which would connect Alfei Menashe to Israel, southwest of the enclave, adjacent to the Matan community inside the Green Line.  Petitioners argue – an argument which is supported by the material they submitted to us – that this plan was not approved due to the opposition of the Matan community, who thought that it would harm its quality of life.  Mr. Tirza noted before us that the road connecting Alfei Menashe to Israel (highway 55) should be viewed as a temporary road.  In this state of affairs, we were by no means convinced that it is necessary, for security-military reasons, to preserve the northwest route of the enclave.  If this route will indeed be altered, it will have an additional implication, in that it will be possible to cancel the two gates separating Qalqiliya and Habla, and reconnect them into a large urban bloc, as it was in the past, and not make due only with the new underpass which connects them.

 

114.     Thus, we have by no means been convinced that the second subtest of proportionality has been satisfied by the fence route creating the Alfei Menashe enclave.  It seems to us that the required effort has not been made, and the details of an alternative route have not been examined, in order to ensure security with a lesser injury to the residents of the villages.  Respondents must reconsider the existing route.  They must examine the possibility of removing the villages of the enclave – some or all of them – from the "Israeli" side of the fence.  Of course, this alteration cannot be done in one day, as it requires the dismantling of the existing fence (in the northern part, the northwestern part and the southwestern part) and the building of a new fence, while canceling highway 55 which connects Alfei Menashe to Israel and buiding a new road southwest of Alfei Menashe.  Respondents must examine, therefore, the preparation of timetables and various sub-phases, which can ensure the changes to the route within a reasonable period.

 

115.     Has the third condition of the proportionality test (narrow proportionality) been satisfied?  In order to answer this question, we must determine whether the existing route of the separation fence at the Alfei Menashe enclave has an alternative route which provides Israelis (in Israel and Alfei Menashe) the required level of security.  If such an alternative route exists, we must examine the intensity of injury to the fabric of life of the village residents.  Thus, for example, if it is possible, according to the security considerations, to reduce the route of the fence so that the enclave will contain only Alfei Menashe, then there is no doubt that the additional security provided by the existing route (compared to the alternate route) does not measure up to the additional injury which the existing route (compared to the alternate route) causes to the local residents (for "relative" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840).

 

116.     And what will be the case if examination of the alternative route leads to the conclusion that the only route which provides the minimum required security is the existing route?  Without it, there is no security for the Israelis.  With it, there a severe injury to the fabric of life of the residents of the villages.  What will the case be in such a situation ("absolute" implementation of narrow proportionality: see The Beit Sourik Case, at p. 840)?  That is the most difficult of the questions.  We were not confronted with it in The Beit Sourik Case, since we found that there was an alternative which provides security to Israelis.  How shall we solve this difficulty in the case before us?  It seems to us that the time has not yet come to confront this difficulty, and the time may never come.  We hope that the examination of the second of the proportionality subtests will allow the alteration of the fence route, in the spirit of our comments, so that a new route can be found, whose injury to the lives of the local residents will be much lesser than that caused by the current route.  We can therefore leave the examination of the satisfaction of the third subtest open, while focusing the examination at this time upon the second condition, that is, examination  of the possibility of reducing the area of the enclave.

 

            Therefore, we turn the order nisi into an order absolute in the following way:  respondents no. 1-4 must, within a reasonable period, reconsider the various alternatives for the separation fence route at Alfei Menashe, while examining security alternatives which injure the fabric of life of the residents of the villages of the enclave to a lesser extent.  In this context, the alternative by which the enclave will contain only Alfei Menashe and a connecting road to Israel, while moving the existing road connecting Alfei Menashe to Israel to another location in the south of the enclave, should be examined.

 

 

Justice D. Beinisch:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice A. Procaccia:

 

I concur in the judgment of my colleague, President A. Barak.

 

 

Justice E. Levy

 

I concur in the result of the judgment of my colleague, the President.

 

 

Justice A. Grunis:

 

I agree that the petition is to be allowed, as proposed by my colleague, President A. Barak.

 

 

Justice M. Naor:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice S. Jubran:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Justice E. Chayut:

 

I concur in the judgment of my colleague President A. Barak.

 

 

Vice President M. Cheshin:

 

I read the comprehensive opinion of my colleague President Barak, impressive in scope and depth, and I agree with his legal decision, and with the way he traveled the paths of the facts and the law until he reached the conclusions he did.  Usually I would not add anything to my colleague's words – as we all know that often, he who adds, actually detracts – however, I found the decision of the International Court of Justice at the Hague to be so objectionable, that I said to myself that I should take pen to paper and add a few words of my own.

 

2.         International law has undergone many welcome revolutionary changes in recent decades.  I remember that 50 years ago – when I was a young student at the Faculty of Law of the Hebrew University of Jerusalem – the subject of Public International Law (as opposed to Private International Law) was a negligible and peripheral subject (even though it was taught as a required course).  Public International Law was not seen by us – we the students – as worthy of the title "law", and the institutions of the international community, including the International Court of Justice, received the same treatment.  The years passed, and public international law got stronger and began to stand on its own two feet as a legal system worthy of the title "law".  That is the case, at least, as far as certain areas or certain states on the face of the globe are concerned. It is fortunate that public international law has developed in that way, although the road is long before it will turn into a legal system of full standing; as a legal system whose norms can be enforced against those who violate them. In the same context, we should know and remember that the International Court of Justice at the Hague, even when asked to write an Advisory Opinion, is still a court.  Indeed, when the ICJ sits in judgment as the giver of an advisory opinion, the proceedings before it are not regular adversary proceedings, and its decision does not have immediate operative force – as opposed to the decision of a regular court. However, the way in which the ICJ writes its opinion is the way of a court; the proceedings of the ICJ are, in principle, like the proceedings of a court; and the judges sitting in judgment don the robes of a judge in the way familiar to us from regular courts.  Take these procedural distinguishing marks away from the ICJ, and you have taken away its spirit as a court.  For we have no lack of political forums.

 

3.         I read the majority opinion of the International Court of Justice at the Hague, and, unfortunately, I could not discover those distinguishing marks which turn a document into a legal opinion or a judgment of a court.  Generally, and without going into piecemeal detail, there are two main parts to the judgment of a court, and likewise, to an opinion of the ICJ: one part lays a basis of facts which were properly proven before the tribunal, and upon this basis is built the other part - the legal part.  Thus is also the case with the opinion of the ICJ before us, one part of which is the factual part, and the other part – which builds itself on the first part – is the legal part.  Regarding the legal part of the opinion of the ICJ, I shall not add to what my colleague the President wrote.  We have seen that there are no essential disagreements between us and the ICJ on the subject of law, and that is fortunate.  However, if that is the case regarding the legal part, regarding the factual part – the part which is the basis upon which the judgment is built – I should like to disagree with the ICJ.

 

4.         As we saw in my colleague's survey, the factual basis upon which the ICJ built its opinion is a ramshackle one.  Some will say that the judgment has no worthy factual basis whatsoever.  The ICJ reached findings of fact on the basis of general statements of opinion; its findings are general and unexplained; and it seems that it is not right to base a judgment, whether regarding an issue of little or great importance and value, upon findings such as those upon which the ICJ based its judgment.  The generality and lack of explanation which characterize the factual aspect of the opinion are not among the distinguishing marks worthy of appearing in a legal opinion or a judgment.  Moreover, generality and lack of explanation infuse the opinion with an emotional element, which is heaped on to an extent unworthy of a legal opinion.  I might add that in this way, the opinion was colored by a political hue, which legal decision does best to distance itself from, to the extent possible.  And if all that is not enough, there is the ICJ's almost complete ignoring of the horrible terrorism and security problems which have plagued Israel - a silence that the reader cannot help noticing – a foreign and strange silence.  I can only agree with Judge Buergenthal, and partly with Judge Higgins, Judge Kooijmans, and Judge Owada, that the factual basis upon which the judgment was built is inadequate to the point that it is inappropriate to pass judgment upon it, even by way of opinion.  As Judge Buergenthal wrote (paragraph 1 of his opinion):

 

". . . I am compelled to vote against the Court's findings on the merits because the court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case . . ."

 

Thus also further on in his opinion (see paragraph 64 of the President's judgment).  I am sorry, but the decision of the ICJ cannot light my path.  Its light is too dim for me to guide myself by it to law, truth, and justice in the way a judge does, as I learned from those who preceded me and from my father's  household.

 

 

Decided according to the judgment of President A. Barak.

 

Given today, September 15 2005.

 

 

             

 

HCJ 358/88

           

The Association for Civil Rights in Israel and others

v.

The Central District Commander and Another

 

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[July 30, 1989]

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

 

 

Editor's Synopsis -

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

Israel Supreme Court Cases Cited:

 

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

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

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

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

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

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

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

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

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

 

American Cases Cited:

 

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

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

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

 

 

JUDGMENT

 

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

 

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

           

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

 

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

 

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

 

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

 

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

           

            "FORFEITURE AND DEMOLITION OF PROPERTY, ETC.

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

 

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

           

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

 

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

           

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

           

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

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

           

            We will now examine the litigants' claims.

           

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

 

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

           

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

                                                                                                

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

 

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

                                                                                                

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

                                                                                                

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

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

                                                                                                

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

                                                                                                

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

                                                                                                

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

           

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

 

            7. The Respondents do not dispute that there are circumstances - and until now these were apparently the majority of instances - in which, even in their opinion, there is no reason not to permit the making of objections (within a fixed time) before the person who issues the order, and also to allow the possibility of postponing its implementation for an additional fixed time (48 hours were mentioned), during which it will be possible to present a petition to this Court requesting the exercise of judicial review over the administrative decision. It is unnecessary to add that it is possible that an interlocutory order will be given, as a result of the application to the Court, and additional time will pass until the actual decision will be given.

           

            However, it is argued, there are situations whose circumstances require on the spot action, and in which it is not possible to delay the implementation of the action until the said periods have passed.

           

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

           

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

           

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

 

            9. In my opinion, ways should be found to maintain the right to present one's claim before implementation of a decision which is not among the types of situations dealt with in paragraph 8.

           

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

           

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

           

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

           

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

           

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

 

            In summation:

           

            (A) I think that, except for matters involving military-operational needs as set forth in paragraph 8, it would be appropriate that an order issued under Regulation 119 should include a notice to the effect that the person to whom the order is directed may select a lawyer and address the Military Commander before implementation of the order, within a fixed time period set forth therein, and that, if he so desires, he will be given additional time after that, also fixed, to apply to this Court before the order will be implemented.

           

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

           

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

           

            This is the absolute order I propose in this situation.

           

            ELON D.P.: I concur.

           

            WALLENSTEIN J.: I concur.

           

            Decided as stated in the President's decision.

           

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

            H.C.J 5973/92                        H.C.A. 5990/92

            H.C.J 5974/92                        H.C.A. 6043/92

            H.C.J 5975/92                        H.C.A. 6047/92

            H.C.J 5976/92                        H.C.A. 6064/92

            H.C.J 6023/92                        H.C.A. 6077/92

            H.C.J 6114/92                        H.C.A. 6089/92

            H.C.J 6170/92                        H.C.A. 6097/92

            H.C.J 6263/92                        H.C.A. 6129/92

            H.C.J 6289/92                        H.C.A. 6167/92

H.C.J 29/93                                H.C.A. 6213/92

H.C.J 32/93                                H.C.A. 6245/92

                                                                                                            H.C.J 97/93                            H.C.A. 6247/92

H.C.J 107/93                              H.C.A.  217/93

            H.C.A.  248/93

            H.C.A.  249/93

            H.C.A.  266/93

            H.C.A.  278/93

            H.C.A.  285/93

            H.C.A.  454/93

 

 

    (H.C. 5973/92)

Association for Civil Rights in Israel

v.

Minister of Defence and others

 

(H.C. 5974/92)

Taher Sheritah & Others

v.

Commander of the IDF

 

(H.C. 5975/92)

Centre for the Protection of the Individual & Others

v.

Commander of the IDF in the West Bank & Others

 

(H.C. 5976/92)

Leah Tsemel & Others

v

Commander of the IDF in the West Bank and Gaza

 

 (H.C. 6023/92)

Abed El Wahab Darawashe, M.K.

v

Prime Minister and Minister of Defence & the Other

 

(H.C. 6114/92)

Ahmad Muhammed Nimer Husein and Another

v.

Commander of the IDF in the Gaza Strip

 

(H.C. 6170/92)

S. Porath

v.

Government of Israel

 

(H.C. 6263/92)

Naftali Gur Arie

v.

Government of Israel and others

 

(H.C. 6298/92)

Darawish Nasser and another

v.

The Commander of the Central Command and another.

 

(H.C. 29/93)

Ibrahim Said Abu Salem and others

v.

Minister of Defence

 

(H.C. 32/93)

Na'ama Husein Elabori

v.

Minister of Defence and another

 

(H.C. 97/93)

Majhad Hamed Kadir & Others

v.

Minister of Defence and another

 

(H.C. 107/93)

Fares Mahmud Abu Muamar

v.

Prime Minister and Minister of Defence and another

 

 

 

In The Supreme Court Sitting as a High Court of Justice

[28 January 1993]

Shamgar P., Elon D.P., Barak, Netanyahu, Goldberg, Or and Mazza JJ.

 

Editor's Summary

 

            Following a number of brutal acts of kidnapping and murder committed by the Hamas and Islamic Jihad terrorist organisations is December, 1992, it was decided by the Government of Israel to empower the military commanders of Judea and Samaria and of the Gaza Strip to issue orders for the temporary deportation of the leaders of these two terrorist organisations who had taken part in organising and supporting acts of terror, for a period not exceeding two years. The two commanders thereupon issued (general) temporary provisions under the Defence (Emergency) Regulations, 1945 (from the time of the British Mandate but still in force in the territories) allowing for individual temporary deportation orders to be carried out immediately after being issued. An appeal committee was also set up, which would, however, hear appeals only after the deportation had already taken place. Altogether, 400 persons were deported to Lebanon under the deportation orders.

           

            The defence authorities (the respondents) submitted that the deportation orders were lawfully carried out even though the deportees were not given an opportunity to bring an appeal and have it heard prior to deportation, since pressing emergency conditions required the deportation to be carried out without any delay. Moreover, they argued, prior hearing could be dispensed with, since the general deportation orders made express legislative provision in that respect. Alternatively, case law of the High Court recognises emergency situations where even an inherent right like the right to hearing will not be enforced.

 

            The petitioners argued that the deportation orders were void, both because the general order itself was void ab initio, in particular owing to lack of sufficient legal basis for denying deportees a prior right of hearing, and also owing to defects in the individual orders. Moreover, they submitted that the deportation was contrary to international law since the 4th Geneva Convention of 1949 relating to Protection of Civilians in Wartime prohibits deportation in general and mass deportation in particular. It was also contrary to Israeli administrative law which grants the right to a hearing prior to deportation.

           

            An additional argument of the petitioners was that an appeal committee was not set up prior to the deportation, and that was an additional reason for invalidating the orders. The argument was rejected outright by the Court, since a committee was indeed in existence prior to the deportation (under regulations l l l and 112 of the Defence (Emergency) Regulations.

           

            The Supreme Court held as follows:

           

I.      The Defence (Emergency) Regulations, 1945 including Regulation l l 2 dealing with deportation is in force in Judea and Samaria, and in Gaza. Its continued force was derived first from Jordanian law and subsequently from legislation enacted by the Israeli military administration.

 

2.     According to the Defence (Emergency) Regulations, there must be sufficient evidence to support the deportation in each individual case. This requirement has been fulfilled.

 

3.     Regulation 112(8) of the above Regulations provides that the advisory committee set up to hear appeals against administrative detention also has jurisdiction to examine deportation orders if so requested by a deportee. That Regulation does not, however, specify whether the appeal is to be heard before or after the deportation is carried out. A reasonable interpretation would be that the right of appeal under Regulation 112(8) should be exercised prior to deportation. However, denial of a right to a prior hearing does not necessarily lead to invalidation of the deportation orders. The correct remedy would be to allow a hearing to take place after the deportation under the same conditions as would have prevailed if it had taken place prior to the deportation.

 

4.     The High Court of Justice will examine the legality of any act of the military government in accordance with the principles of Israeli administrative law. Those principles require grant of the right of hearing, and as far as possible the hearing, so as to be fair and effective, should be held in the presence of the person concerned (in this case, the deportee). Allowing such person to appear in person, and not just by his representative, may have prevented cases of mistaken identity or other errors of which there were a number in the present matter.

 

5.     In exceptional circumstances, the rule allowing for the right to a prior hearing can be departed from, where security needs justify such departure. However, in the present case, it is not necessary to consider whether such exceptional circumstances exist, since the rule laid down in earlier case law applies here, whereby even where there has been no prior hearing, a hearing should be held subsequent to deportation, and this should afford the deportee the opportunity to put forward his case in detail; in any event, lack of a prior hearing does not invalidate the individual deportation orders.

 

6.     The general temporary provision orders where invalid insofar as they sought in general to replace existing principles of natural justice which require a prior hearing to take place before carrying out deportation orders, without relating to specific exceptional cases.

 

7.         The Court concluded as follows:

a)     Lack of prior hearing did not invalidate the individual deportation orders. The Court ordered the right of hearing to be granted following the deportation.

b)     The "provisional" (general) deportations order was invalid, for reasons stated, but this did not invalidate the individual orders.

c)     Submissions regarding invalidity of individual deportation orders were to be considered by the advisory committee within the scope of the (subsequent) appeals.

 

 

Israel Supreme Court Cases Cited:

 

[1]       H.C. 513, 514/85 Nazal v. Commander of IDF in Judea and Samaria, 39(3) P.D. 145.

[2]   Elections Appeal 1/65 Yarador v. Chairman of Central Elections Committee, 19(3) P.D. 365.

[3]       H.C. 680/88 Schnitzer v. Chief Military Censor, 42(4) P.D. 617.

[4]   H.C. 1361, 1378/91 Maslam v. Commander of IDF Gaza Strip; Abu Judian v. Minister of Defence, 45(3) P.D. 444.

[5J       H.C. 320/80 Kawasma v. Minister of Defence, 35(3) P.D. 113.

[6]       H.C. 672/88 Lavdi v. Commander of IDF West Bank, 43(2) P.D. 227.

[7]       H.C. 7/48 Karabutli v. Minister of Defence 2 P.D. 5.

[8]       H.C. 25/52 Al Galil v. Minister of interior 6 P.D. 110.

[9]       H.C. 240/51 Al Rahman v. Minister of interior 6 P.D. 364.

[10]     H.C. 174/52 Abu Dahud v. Governor of Acre Jail, 6 P.D. 897.

[11]     8/52 Badar v. Minister of interior, 7 P.D. 366.

[12]     H.C. 3/58 Berman v. Minister of lnterior, 12 P.D. 1493.

[13]     H.C. 290/65 Altagar v. Mayor of Ramat Gan, 20(1) P.D. 29.

[14]     H.C. 654/78 Gingold v. National Labour Court, 35(2) P.D. 649.

[15] Cr. A. 768/ 80 Shapira and Co. Netanya Contractors Ltd v. State of Israel, 36(1) P.D. 337.

[16] H.C. 4112/90 Israel Association for Civil Rights v. Commander of Southern Command, 44(4) P.D. 529.

[17] Misc. App. H.C. 497/88 (H.C. 765/88) Shachshir v. IDF Commander West Bank, 43(1) P.D. 529.

[18] H.C. 69/81 Abu Ita v. Commander of Judea and Samaria Region; Kanzil v. Customs Commissioner Gaza Region Command, 37(2) P.D. 192.

[19] H.C. 358/88 Israel Association for Civil Rights v. Commander of Central Command, 43(2) P.D. 529.

[20] H.C. 531/79 "Likud" Faction in Petach Tikva Municipality v. Petach Tikvah Municipal Council, 34(2) P.D. 566.

[21]     H.C. 549/75 Noah Films Ltd v. Films Censorship Board, 30(1) P.D. 757.

 

 

English Case Cited:

[22]     R. v. Secretary of State for Home Dept. ex parte Hosen Ball [1977] 1 W.L.R. 766.

 

Jewish Law Sources Cited:

[A]      Genesis Ch. 3, vv. 1-2, Ch. 4, vv. 9-10, Ch. 18, v. 21.

[B]       Deuteronomy Ch. l, v. 16.

[C]       Response of Harama (Rabbi Moshe Isserles) 108.

 

On Behalf of the Petitioner in H.C. 5973/92:

Adv. J. Shoffman; Adv. D. Brixman

On Behalf of the Petitioners in H.C. 5974/92; 5975/92;

and Respondents No. 5

Adv. A. Feldman; Adv. E. Rosenthal; Adv. L. Tsemel

in 14C 6263/92

On Behalf of the Petitioners in H.C. 6023/92; 107/93:

Adv. E. Dekoar

On Behalf of the Petitoner in H.C. 6114/92:

Adv. E. Riadh

On Behalf of the Petitioner in H.C. 6298/92, 32, 97/93:

Adv. D. Nassar

On Behalf of the Petitioners in 29/93:

Adv. G. Bolos

On Behalf of Respondents 34 in H.C. 6263/92:

U. Slonim

On Behalf of the Respondents:

Adv. J. Harish, The Attorney-General

Adv. N. Arad, Director of the High Court of Justice Department

The State Athority's Office

In the Supreme Court Sitting as High Court of Justice

 

 

JUDGMENT

 

Introduction

 

            1. (a) These petitions and the applications accompanying them relate to the deportation to Lebanon on 17th December 1992 of 415 residents of Judea, Samaria and the Gaza Strip, in respect of whom, according to governmental authorities, information has been assembled to the effect that they are active in the Hamas or Islamic Jihad organisations.

           

            According to Respondents' reply, only those whose activities reached, or exceeded, the level of responsibility for local administration (including training, operations and incitement) have been deported, and not those who were engaged merely in disturbing the peace, distributing leaflets or writing slogans.

 

            (b) Relatives of the late Nissim Toledano and Iris Azoulai, who were victims of the above organisations, and the Victims of Terror Association joined the proceedings as respondents, requesting that the steps taken by the State remain in Force. The family of the missing soldier Yehuda Katz also joined the proceedings as petitioner and applied for the Government to declare its willingness to include an exchange of Israeli missing in Lebanon for the persons expelled. Adv. Shai Porath also joined the petitions, claiming that the Government was not competent to refuse on 25th December 1992, the request of the International Red Cross to transfer aid and supplies to the deportees at the place they are staying in Lebanon.

           

            We would explain our position in respect of these additional petitions at the outset:

           

            (1) Insofar as relates to the petitions of the Toledano and Azoulay families and the Association of Victims of Terror Association, their positions are the same as that of the State, and therefore everything stated by us in this context below will also apply to those petitions.

           

            (2) As the Attorney-General has declared before us, the application of the Katz family is being considered by the Government and we did not consider that at this stage we can go beyond that.

           

            (3) We were dubious as regards the legal basis of Adv. Porath's petition; however, it has meanwhile become apparent that the question of medical aid for the deportees is in any event amongst those matters which the Government is at present taking up with the International Red Cross, and at this stage, therefore, considera­tion of the said additional petition has become superfluous.

           

            2. Our statements will be divided into the following sections:

           

            (a) Factual background, including a description of the Hamas organisation and the Islamic Jihad organisation.

           

            (b) The expulsion orders which were made and the legal basis for the expulsion orders according to the Respondents.

           

            (c) The Petitioners' arguments.

           

            (d) Conclusion on the legality of the expulsion.

 

The Hamas and the Islamic Jihad

 

            3. (a) On 13th December 1992 the Hamas carried out a brutal kidnapping and murder of the late Nissim Toledano. The same week, the said organisation caused another five deaths, the climax of acts of murder which had preceded them. Acts of kidnapping and murder expressed the central and dominant objective of the said organisation, and of the Islamic Jihad organisation and its factions, to bring about the liquidation of the State of Israel through Jihad (a holy war). Those organisations have in recent years been responsible for the murder or wounding, by stabbing, axes, strangulation or shooting, of civilians and soldiers who have fallen in the path of the perpetrators; amongst the victims are a 15 year old girl and old people of 70 years and more. These organisations have also murdered many tens of Arab residents of the occupied territories who, according to them, were suspected of having contact with Israeli entities or of disloyalty to the personal norms of conduct which bound them according to the said organisations' philosophy.

           

            (b) According to an expert's opinion which has been submitted to us, based to a great extent on the manifest publications of these organisations, i.e. statements quoted from them, the Hamas is a secret organisation which combines the most extreme Islamic fundamentalism with absolute opposition to any arrangement with Israel or recognition of it and preaches the destruction of the State of Israel ("Israel will arise and exist until Islam wipes it out, just as it wiped out its predecessors" - quoted from the Hamas Covenant).

           

            The object of the organisation is the reinstatement of an Islamic state in the whole area of Palestine "from the Mediterranean Sea to the Jordan River" ("the Hamas believes that the Land of Palestine in a Muslim trust until the end of time. Neither it nor any part of it can be surrendered... This is the principle of the Islamic Sharia (Islamic law) and holds good as regards any country conquered by force by the Muslims" - quoted from the third chapter of the Hamas Covenant dated 18th August 1988). Holy War (Jihad), in the form of armed struggle, including murder, is the sole and immediate means to achieve the said goal; any accomodation with an Israeli entity amounts to surrender of the principles of the Islamic religion.

 

            In its propaganda the organisation relies on local religious personalities who add religious decisions and interpretations as a conceptual foundation and as religious legitimation for acts of terror. Its adherents include members of the free professions who guide the organisation's activites and arrange for the supply of resources necessary for its activities. The organisation is aided by front organisations which serve as sources for mobilising manpower and for camouflaging covert action (transfer of funds, etc.).

           

            The acts of murder and terror are in a constant process of escalation, and for taitous kidnapping for the purpose of murder, as already mentioned, is outstanding feature of the organisation's activities.

           

            The main objectives of the organisation emerge from its proclamations. In Proclamation 91 of 5th October 1992 it was said, inter alia:

           

"Hamas calls upon the masses of our Arab and Islamic people to clarify their position: rejection of the device of autonomy and rejection of the normalisation of relations with the Zionist enemy. Hamas demands that the leadership of the PLO and of all Arab countries concerned in the negotiations with the Zionist enemy withdraw from the negotiations and stand alongside the Palestinian people in its Jihad against subjugation.

 

            Hamas congratulates the brave Halal As Eladin Elkassem Brigade for their success in attacks in Gaza and Jerusalem against soldiers of the Zionist occupier and calls for more heroic attacks".

 

            In Proclamation 93 of 5th December 1992, the following passage appears:

 

"Only iron will rout iron and only the strong will overcome the weak, a firm decision is a firm decision and Jihad is Jihad until Allah proclaims victory.

 

Your movement, the Hamas, renews its promise to continue the Jihad, despite the surrender of the docile or the violence of the occupiers and calls as follows:

 

(a) On the foreign level:

Hamas stresses its demand that the Arab countries participating in the negotiating process, withdraw from it and not respond to the demands of the Zionist enemy to halt the economic boycott and normalise relations with it".

 

            The Proclamation of 14th December 1992, following the kidnapping and murder of the Late Nissim Toledano, included the following:

           

"We emphasise that the Jihad and the death of the martyrs which Hamas has adopted as a method and strategy is the only means for the liberation of Palestine, and it is this alone which will bring about the collapse of our enemy and shatter his arrogance. We have promised Allah to continue our jihad, to escalate it, develop it and constantly surprise the enemy by our sacred military activites. We call upon our brethren in all the Palestinian (Islamic and national) factions to escalate the activities of the Jihad and concentrate all our people's potential in the front which is fighting the enemy and to turn our pillaged land into a volcano which will destroy the conquering invaders by fire.

 

The capture of the officer is in the context of the state of war between Palestine, our people and our brigades and the Zionist enemy, and it was not the first act, as our people is well aware - and will not be the last - with the help of the Almighty". (Emphasis in the original)

 

            Expression of the spiritual image of the Hamas activists can also be seen from the congratulatory statements about the murder at the end of December of the Lage Haim Nahmani, which were made by the chief spokesman of the deportees, Dr. Elaziz Rantisi, on 4th January 1993.

           

            (c) The Islamic jihad movement, with all its factions, is no different in its character and objects. It emerges from the statements of its leaders and its publications that this movement views the "Zionist Jewish entity" embodied in the State of Israel as a prime enemy and advocates immediate action to liquidate it, this movement too has given expression to its ambitions in dozens of acts of murder and terror.

           

The Deportation Orders

 

            4. (a) Against the background of increasing Hamas activity in the first weeks of December 1992, the Government, on 16th December 1992, decided as follows:

           

"456. Security matters

 

In the Ministerial Committee for National Security Matters, authority is given to make emergency regula­tions for the issue of immediate deportation orders for the expulsion of persons inciting acts of terror and it is decided (by a majority, one abstention) as follows:

 

            (a) In view of the existence of a state of emergency and in order to safeguard public security - to instruct the Prime Minister and the Minister of Defence to order and empower the military commanders of Judea, Samaria and the Gaza Strip to issue orders in accordance with vital, immediate security needs relating to the temporary deportation, without prior notice, for the purpose of deporting inciters, of those of the residents of the territory who are, by their action, endangering human life or inciting such action, for such period as determined by the military commanders, but not exceeding two years.

 

            (b) Any person departed as aforesaid may, within 60 days, appeal against his deportation to a special committee through a member of this family or his advocate in accordance with rules to be laid down in the orders".

           

            Following the said decision, the Commander of Central Command, who is also Commander of the IDF Forces in Judea and Samaria, and the Commander of Southern Command, who is also Commander of the IDF Forces in the Gaza Strip, published provisional orders relating to the Temporary Deportation (Temporary Provision) (Judea and Samaria Region) (No. 138l) Order, 1992 and the Temporary Deportation (Temporary Pro­duction) (Gaza' Strip Region) (No. 1986), 1992. The wording of the order in respect of Judea and Samaria is set out below:

           

"The Israel Defence Forces

           

Order for Temporary Deportation (Temporary Provision)

 

By virtue of my power as Commander of the IDF Forces, having been satisfied due to the special circumstances presently existing in the territory, that decisive security reasons so require, I hereby order, as a temporary provision, as follows:

 

Definitions

 

1. In this Order -

 

'regulations' means the Defence (Emergency) Regula­tions, 1945;

 

 'temporary deportation order' means an order pursuant to Regulation 112(1) of the Regulations, the force of which is limited to a period not exceeding two years.

 

Implementation of temporary deportation order

 

2. A temporary deportation order may be carried out immediately after it is issued.

 

Appeals committee

 

3. (a) Notwithstanding the provisions of Regulation 112(8) of the Regulations, appeal committees shall be established for the purpose of this Order whose members shall be appointed by me or by person empowered by me.

 

(b) A legally qualified judge of a military court shall serve as chairman of an appeal committee.

 

(c) An appeal committee shall have power to hear an appeal brought before it and may approve the temporary deportation order, revoke it or reduce the period specified therein.

 

Appeals

 

4. (a) An appeal against a temporary deportation order may only be made to the appeal committee within 60 days of the temporary deportation order being issued.

 

(b) The deliberations of the appeal committee shall be conducted in camera.

 

(c) Where the temporary deportation order has been carried out, the appeal committee shall consider the appeal in the absence of the deportee.

 

(d) The deportee shall be entitled to be represented before the appeal committee by an advocate or a relative.

 

5. (a) This Order shall commence on the date of its signature.

 

(b) This Order shall remain in force until other provision

is made by me.

 

6. This Order shall be referred to as the Temporary Deportation (Temporary Provision) (Judea and Samaria Region) Order (No. 138 l), 1992.

16th December 1992.

 

Danny Yatom, Brigadier

Commander of the IDF Forces in Judea and Samaria"

 

 

            The wording of the order in respect of the Gaza Strip is similar, with some insignificant modifications, to the order published for Judea and Samaria.

           

            (b) The said order relating to temporary expulsion is based on the provision of Regulation 112 of the Defence (Emergency) Regulations, 1945, which were made by the British Mandatory Government and are still part of domestic law in the said territories.

           

            The relevant provisions of Regulation 112 as aforesaid provide as follows:

           

"Deportation

           

112. (l) The Commander of the Israel Defense Forces in the territory shall be empowered to make an order under his hand hereinafter referred to in these Regulations as a deportation order) for the deportation of any person from the occupied territory. Any person in respect of whom a deportation order is made shall remain outside the occupied territory so long as the order is in force.

 

(8) Any advisory committee appointed under the provision of sub-regulation (4) of Regulation 111, if so requested by any person in respect of whom a deportation order is made under these Regulations, is empowered to deliberate and make recommendations to the commander of the territory in connection with the deportation order".

 

            There has been no dispute before us that the Defence (Emergency) Regulations, 1945, including the said Regulation 112, are part of the domestic law in force in each of the said occupied territories (as regards Judea and Samaria, see also the summary of the legislative history in H.C. 513/85 [l] Nazal v. The Commander of the IDF Forces in Judea and Samaria, (hereafter - the Nazal case) [l]. In the Gaza Strip, the British Mandatory law still applies in full, so that Regulation 112 is included therein.

           

            (c) From the above quotation, it emerges that the temporary deportation order referred to the special circumstances which had arisen and to the decisive security reasons, and it provided the following main arrangements:

           

            (1) The force of the temporary deportation is for two years at the most.

           

            (2) The temporary deportation order under Regulation 112 of the said Regulations can be carried out on the spot, namely immediately after its issue.

           

            (3) The right to a hearing would only be available after the deportation is carried out, i.e., it would be possible to submit an appeal for up to 60 days from the date of issue of the order. The 60 day limitation was revoked in an amendment of 13th January 1993.

           

            (4) The appeal committee for the purposes of such an appeal would have power to make a binding decision, not merely a recommendation.

           

            (5) The appeal would be heard in the absence of the deportee, who could be represented by an advocate or relative.

           

            (d) Following on the orders, the commanders actually exercised the power vested in them, as follows:

           

            In Judea and Samaria, 284 deportation orders were issued, of which 39 were for a period of 18 months and the rest for a period of 24 months. In the Gaza Strip, 202 orders were issued, of which 100 were for a period of 18 months and the rest for a period of 24 months. Of the said total number, 78 were subsequently with­drawn, but orders were added, to the effect that altogether 415 persons were expelled.

           

            On 16th December 1992 the deportation began. It was temporarily stayed following on the first petitions, by interim orders of this court, which were set aside on 17th December 1992 together with the issue of the orders nisi.

           

            (e) The criterion applied by the military authority which decided to carry out the deportation was an individual one; namely, the selection was personal, based on the information regarding each of the candidates for deportation. As stated in the State's written reply submitted to us:

           

"49. Those involved are individuals, some of whom took part in the organisation and support of acts of violence or in the guidance, incitement or preaching of such acts. The others assisted the activites of the said organisations in the sphere of ecomomic or organisational infrastructure, the mobilisation of personnel, the raising and distribution of funds and also in the wording of proclamations and organising their circulation. "

 

            (f) after the deportation, it transpired that the deportees included, in error, six people against whom an order had not been made, another person in respect of whom of identity an error had been made and nine persons under legal process or persons against whom court proceedings were being conducted, whom it was not intended to expel without first exhausting the legal proceedings already being taken.

 

            The Government announced its willingness to return the said persons, and 14 of them who agreed thereto have already been returned.

           

The Respondents' Position

 

5. The position of the Respondents is that a deportation order may be duly carried out pursuant to the emergency provisions without allowing an opportunity to submit an appeal prior thereto, pursuant to Regulation 112(8) quoted above, because -

 

            (a) in practical terms there is a necessity, namely there are pressing emergency conditions which required deportation; and

           

            (b) in legal terms, in such circumstances, the prior hearing of an appeal could be dispensed with, because the orders of the commanders laid down an express legislative provision on this issue permitting expulsion without prior hearing; in the alternative, the law of the State of Israel, as expressed in the precedents of this Court, also recognises exceptions which, in extreme security circumstances, permit departure from the observance of an inherent right, including that of a hearing. In this context the Respondents referred inter alia to the judgment of President Agranat and of Judge Sussman in E.A. 1/65 (Yarador v. Chairman of the Sixth Knesset Central Elections Committee, [2] and to the judgment in H.C. 680/88 (Schnitzer v. The Chief Military Censor, [3], at 630, opposite the letter B).

           

The Petitioners' Arguments

 

            6. (a) The central argument of the Petitioners is that the deportation orders are void for a dual reason, both because the empowering order (namely the Temporary Provisions Order) is void ab initio and because of various defects which occurred in the course of issuing the individual orders.

           

            With regard to the first reason, the Petitioners referred in particular to alleyed absence, of a sufficient legal basis for denying the deportee the right of prior hearing, so as to allow him to raise his objections to the deportation, before it takes place, before a committee operating under Regulation 112(8) of the Defence (Emergency) Regulations, 1945, and if he so desires thereafter also before the High Court of Justice (according to the limits delineated in that respect by this Court in H.C. 1361/1378/91 Mesalem v. The Commander of the IDF Forces in the Gaza Strip, Abu Judian v. Minister of Defence [4] at 453, opposite the letter F).

 

            (b) The act of deportation is contrary to both public international law and to Israeli administrative law, jointly and severally:

           

            (1) Article 49 of the Fourth Geneva Convention relate to the Protection of Civilian Persons in time of War prohibits expulsion generally and mass expulsion in particular.

           

            (2) Israeli law grants the right to a hearing before deportation (H.C. 320/90, Kawasme v. Minister of Defence, H.C. 672/88, (hereafter, the Kawasme case) [5], Lavadi v. Commander of the IDF Forces in the West Bank, [6] at 235,. and H.C.A. 454/88, quoted therein). This right, which is laid down in Israeli law, should not be denied by security legislation in occupied territory.

           

            (c) Following H.C. 7/48 (EI Karbutli v. Minister of Defence, (hereafter, the Karbutli case) [1] it was pleaded by the Petitioners that the deportation orders are void on a further ground, namely that the committees under the Temporary Provisions Order were only set up after the deportation, i.e. they did not exist before the deportation was carried out.

           

            We should point out already at this stage that we cannot accept this last argument. As we shall specify below, the right to apply for a hearing (or appeal) is based on the provisions of Regulation 112 as aforesaid. Sub-regulation (8) thereof, which the Petitioners continue to view as the determining provision as to the appeal, refers to the committees set up under Regulation 111(4), which have been in existence time, including the date that the order was carried out.

 

The Legal Conclusions

 

            7. The following are the matters requiring examination.

           

            (a) The validity of Regulation 112 of the said Regulations as part of domestic law.

           

            (b) When may Regulation 112 be implemented.

           

            (c) The right of hearing pursuant to that regulation.

           

            (d) The exceptions to the right of hearing and the validity of the temporary provisions.

           

            (e) The validity of the deportation orders.

           

            (f) The implementation of the right of hearing.

           

            8. Regulation 112 of the Defence (Emergency) Regulations, 1945, which deals with deportation, is a legal provision of law valid in Judea and Samaria and the Gaza Strip, since it is part of the law applicable in the region ("the laws in force in the country", in the words of Regulation 43 in the Aurex to the Hague Convention of 1907 concerning the Laws and Customs of Land Warfare). The continued force of the Regulation, which was made during the British Mandate, originally derived from the provisions of Jordanian law, and since the entry of the IDF Forces it has a similar derived from the Law and Administration Proclamation (No. 2), 1967 and Proclamation of the same year related to the Gaza Strip (see also H.C. 1361-1378/91, [4], at p. 455). The implementation of Regulation 112 as domestic law is, since the entry of the IDF Forces, with the power and authority of the regional commander.

 

            The orders which were made in the present case were based on specific information in respect of each deportee, namely on individual considerations which, according to the Respondents, indicated the existence of a basis in respect of each single one of the deportees. This means that there was no collective order but a set of personal orders, each of which exists independently, and meets the requirements of Regulation 108 of the said Regulations, which is discussed below.

 

            9. The arguments addressed to us did not justify a departure from the legal conclusion that the discretion standing behind the implementation of Regulation 112 was based on considerations contained in Regulation 108 of the said Defence Regulations (as stated therein, "if it is necessary or effectual to grant the order for the security of the public, the defence of the State of Israel, the maintenance of public order or the suppression of uprising, rebellion or riots"), provided that the individual data relating to a deportee, as presented to the Commander of the IDF Forces before making the order, give foundation for such an act. The evidence relating to each deportee should be clear, unequivocal and persuasive, see the Nazal case [1], at 655).

           

            10. (a) Regulation 112(8) lays down as aforesaid that a consultative committee, appointed under Regulation 111(4) for the purposes of hearing appeals against an administrative detention order, is empowered to examine and make recommendations in connection with a deportation order if so requested by a person in respect of whom such an order has been made.

           

            The said Regulation does not specify whether the hearing of the appeal should be held before or after the deportation is carried out. The British Mandatory authorities which made the Regula­tions believed, as emerges from the way in which the Regulation was implemented, that there is no duty to hear an appeal before the deportation order is carried out, and the then consultative committee heard appeals (when too, in the absence of the deportee) only after the deportation order had been carried out. The committee under Regulation 112(8) was the same committee which acted under Regulation 111(4) and, just as it heard appeals after detention rather than before it, so it also heard appeals against deportation after, rather than before, its implementation.

           

            As can be learnt and inferred from the case law of the early years of the State, then too it was not the practice to grant the right of hearing, in the event of an appeal, prior to eassying out a deportation order (this is for example implied from H.C. 25/52, Jalil v. The Minister of the Interior, [8]; H.C. 240/51, Ta Alrahman v. Minister of the Interior, [9]; H.C. 174/52, Abu-Dahud v. Superintendent of Acre Prison, [10]; H.C. 8/52, Badar v. Minister of the Interior, [11].

 

            However, the developments which have occurred in consti­tutional and administrative law in recent decades have conferred on the right of hearing as a rule - including the right to appeal to the consultative committee under Regulation 112(8) which takes place in advance - the status of an established rule, and an essential means for the prior examination of the justification for the Commander to make a deportation order. The courts have viewed the prior hearing in the field of administrative law as one of the rules of natural justice (H.C. 3/58, Berman v. Minister of the Interior, [12] at 1503; H.C. 290/65, Eliaar v. Mayor of Ramat Gan, [13] at 33; H.C. 654/78, Gingold v. National Labour Tribunal, [14] at 654; Cr. A. 768/80, Schapira v. State of Israel, [15] at 363); and as regards the right of prior hearing, it was stated in H.C. 4112/90, Association for Civil Rights in Israel v. Commander of the Southern Command, [16] at 638, that -

           

"The source and foundation [of the right of hearing] is in Jewish tradition, and the sages of Israel ancient saw it the ancient right of humanity" (Genesis, Chapter 3, Verses 11-12; Chapter 4, Verses 9-10 [a] 18, 21; Deuteronomy, Chapter 1, Verse [B] 16); and further on [16] on page 638 it is stated:

 

            As regards the present case, it was stated in H.C.A. 497/88 (H.C. 265/88) (Shakshir v. Commander of IDF Forces in the West Bank, [17] at 537

           

"In Aware of the grave and far-reaching determent occasioned to the person concerned by reason of an order expelling him from is place of residence, the legislature has laid down a special procedure, which is not known in criminal law, through Regulations 111(4) and 112(8) of the Defence Regulations, according to which a consultative committee, headed by a lawyer, was established, amongst its powers being to examine all the information existing against the deportee 18 including all evidence, whether unrestigated privileged, in the posession of the Defense authorities. This committee gives the deportee an opportunity to submit to it his evidence and arguments and it must also allow him to call other witnesses on his behalf, if those witnesses might affect the result of the hearing. After examining the evidence and hearing the arguments of the parties or their attorneys, the consultative committee makes its recommendation to the Military Commander as regards the outcome of the relevant order... if the Commander decides, after receiving t he opinion of the consultative committee, not to cancel the deportation order and to insist upon its imple­mentation, it is open to the deportee submit a petition to the High Court of Justice".

 

            (c) The legal interpretation according to which Regulation 112(8) grants a right of appeal before implementation of the deportation was considered at length in the Kawasme case [5].

           

            The Kawasme case [5] involved the deportation of the mayors of Hebron and Halhoul and of the Imam of the El Ibrahimi Mosque, Rajahb El-Tamimi, following the murder in Hebron of six Jews who, on 2nd May 1980, were returning from prayers at the Cave of Machpela. Immediately upon the deportation order being made by Brigadier-General Benjamin Ben Eliezer, the three were taken from their homes, supposedly for the purpose of talks with the regional commander. They were then told that they were going to meet the Minister of Defence and instead they were flown by helicopter to the Lebanese border and there expelled over the border. Their spouses petitioned this Court against the validity of the deportation order.

           

            An order nisi was issued pursuant to which the authorities were required to show cause "why the deportation orders should not be set aside... since they (the deportees) had not been given a fair opportunity to state their objections to the deportation orders for consideration by the committee mentioned in Regulation 112(8)... and were not allowed to appear before that committee before the expulsions were implemented.

           

            In the Kawasme case the State Attorney explained in his arguments that those responsible for the deportation knew that the law prescribed with regard to Regulation 112(8), although they had decided, without consultation with legal authorities, to implement the deportation forthwith without service of an order or notice of its contents, because "a situation had arisen which obliged the immediate deportation of the said three leaders in order to prevent a dangerous escalation in the security situation in the region". The State representation also stated in court, after deportation had been carried out, that it would be willing to hold a hearing before an appeal committee.

           

            President Landau held that, according to the rules of natural justice and in view of the wording of Regulation 112(8), the reasonable meaning of the Regulation was that there is a duty to grant an opportunity of applying to the committee immediately after the deportation order is made and before it is carried out. After the deportation has been carried out a new situation arises, when the deportee is already over the border and he is thereby deprived of his ability to object to the order and put his case to the committee.

           

            This was also how the Regulation was understood - as emerged from the Minister of Defence's reply - in another case, being that of the deportation order in respect of Bassam Shaka, the mayor of Nablus. In the words of President Landau, "even if it had been most desirable in the eyes of the respondents, for pressing reasons of security, that the deportation be implemented without any delay, that did not justify their disregard... of the necessity to observe the law" (ibid., p. 119).

           

            Nevertheless, President Landau did not see fit to set aside the deportation order. The consultative committee was already in existence at the time of the deportation and it was therefore not appropriate to conclude that the order was void on the ground that this Court applied in the case of Karbulti (ibid., H.C. 7/48), in which a detention order was revoked because a committee under Regulation 111(4) did not exist at the time the detention was carried out.

           

            In President Landau's opinion, the main point is that denial of the right to apply to the committee prior to deportation require does not retroactive revocation of the order, but the correct remedy for the wrong is reinstatement, namely placing the petitioners in the situation in which they would have been had they not been deprived of the right to apply to the committee. In view of the evidence of open incitement against the State by the Imam El Tamimi, the court did not find it appropriate to extend relief to that deportee, whereas in respect of the other two (Kawasme and Milchem), a majority of the judges (the President and Judge Yitzhak Kahan) decided, as President Landau said, after much soul-searching, that a recommendation should be made to allow those two to appear before the committee after the event. Judge Yitzhak Kahan, as mentioned, agreed with the result which President Landau reached, but added that although Regulation 112(8) does not contain express provision that an appeal to the committee should be allowed before deportation, in his opinion the rule is that generally a person should be allowed to appeal to the consultative committee before the order is implemented. This rule is not founded on statute, but on principles laid down by the courts which oblige every authority to act fairly. Denial of the right to apply to the committee is similar to denying a person's right to a fair hearing. However, according to him, there could be emergency situations in which the right of hearing must bow to a contrary vital interest, which should be given priority. We shall discuss this below.

           

            Judge Haim Cohen, dissenting, believed that the order should be made absolute, since the expulsion orders should be viewed as void in view of the manner in which the deportation had been dealt with.

           

            The court, therefore, by a majority, decided to discharge the order nisi, namely to dismiss the petition, making the following recommendation:

 

 "...that if the committee (namely the consultative committee appointed under Regulation 111(4) of the 945 Regulations) finds that the content of the first and second petitioners' application to it, if made, is prima facie relevant and that it contains a clear position on the part of the petitioners whereby they intend to observe the laws of the military administration in their activities as public personalities and it also contains unequivocal reference to the statements of incitement published in their name in the media - then in the next stage the petitioners should be allowed to appear personally before the committee to allow it to gain an impression of their oral explanations, in the manner which should have been adopted initially" (ibid., pp.124- 125).

 

            The two deported mayors indeed applied to the committee through the Red Cross in affidavits which met the requirements. Following this, they were returned for the hearing via Allenby Bridge and were arrested on the spot. The consultative committee held its hearing by the Bridge. Petitioners' counsel appeared before it and their arguments were heard, and information was submitted on behalf of the Army about their activities. The committee heard the appeal and dismissed it, and the deportation order was upheld. The petitioners applied to this Court with a new petition which too was dismissed. The deportation order was then carried out once again.

           

            11. (a) In the present case, the Respondents have sought to modify the legal infrastructure by enacting the orders regarding the temporary provisions which expressly permit immediate expulsion, and allowing the possibility of applying to the consultative committee after the deportation.

           

            (b) We have explained in the past on more than one occasion that this Court will review the legality of an act of the military administration and the validity thereof in accordance with the principles of Israeli administrative law, in order to decide whether the norms binding an Israeli public officer have been observed (HC 69,493/81,) Abu Ita, v. Judea and Samaria Regional Commander, Kanzil v. Customs Commissioner, Gaza Region Command [18], at 231.

           

            It was stated there:

 

"So far as this Court is concerned, the officer is not generally regarded as having fulfilled his duty if he has performed that which is necessitated by the norms of international law, since more is required of him, as an Israeli authority, and he should also act in the sphere of military administration in accordance with the rules which delineate fair and proper administrative procedures. For example, the laws of war do not disclose any principle, whether established or at least formu­lated, according to which there is a duty to observe the right of hearing, but an Israeli authority will not fulfil its duty... if it does not respect that duty in circum­stances where the right should be granted in accordance with our norms of administrative law".

 

            Israeli administrative law requires as aforesaid, the grant of a right of hearing, and we have already stated that the more serious and irrevocable the results of the Government decision, the more essential is it that the person affected be allowed to state his objections and give his answer to the allegations against him so as to try to refute them (see H.C. 358/ 88, Association for Civil Rights v. Commander of the Central Command, [19] at 540).

           

            (c) Moreover, hearing arguments from an intermediary rather than from the person concerned is inherently deficient in value and practicality. Statements made by counsel lose some of their force when the person making the statements on behalf of another cannot first meet with the person concerned in order to obtain from him information, guidance and instructions, and continue consulting with him routinely in respect of the factual allegations raised against him which are the basis of the hearing, and in respect of which his reply is sought, as he alone knows his exact case Personal appearance, before the committee of the person in respect of whom the deportation order is made, is the foundation and essence the right to a hearing.

           

            The cases of mistaken identity, and of selection of deportees which have been discovered in the matter before us after the event, have of course made more acute the conclusion as regards the importance of giving an opportunity to put forward a regiments directly before the committee. There is a possibility - if only theoretical - that there are other cases in which it could become apparent that there was a mistake in - or non-justification for - the deportation, if the person concerned appeared before the committee and stated his case.

 

            12. (a) The Respondents have put forward the argument that, according to the principles of administrative law, there are circumstances in which vital interests of state security prevail over the duty to hold a prior hearing, before carrying out the deportation order. In other words, in balancing these competing values, namely the right of hearing versus security needs and when the security circumstances are of special weight, the right to hearing should not be exercised in advance of carrying out the deportation but only subsequently, and the need to exercise the power immediately then constitutes an incontestable constraint. The State's argument was as follows:

           

"31. Moreover, the opinion of the security authorities was, and still is, that any attempt to carry out the deportation of hundreds of people according to the previous pattern (rather than by way of immediate expulsion), whilst the deportees were still in the territories, was likely to give rise to a very services wave of incitement and violence, aimed inter alia at creating pressure (both domestic and international) on the State of Israel to rescuid the intention to expel them.

 

32. In this context, it could also be appraised, on the basis of past experience, that such a wave of incitement was also likely to spread beying the Palestinian street into the detention centres and prisons in Israel, in Judea and Samaria and the Gaza Strip".

 

            In order to lay the foundation for his argument of the existence, at times of a right to depart from the major principle of granting the right of prior hearing, the Attorney-General referred inter alia to H.C. 531/79 (The Likud Faction in Petach Tikva Municipality v. The Petach Tikva Municipal Council, [20] at 576), where it is stated:

 

"Principles of necessity or temporary constraints set aside the application of the rules of natural justice".

 

            Cr.A. 768/80 [15] was also mentioned, where it was held, an p. 365-366 of the report:

           

"There are cases where an administrative authority makes a decision without hearing the interested party and at the decision can be a valid one. This will happen when the interest which the decision protects in a specific case is of greater weight in the context of interests as a whole than the interest of the right to a hearing. Granted the importance of the principle of the right to a hearing, it should not be forgotten that it is only one of the generality of interests which have to be balanced and respected".

 

            In delineating the bounds of the said exception to the existence of the rule as to a hearing in purely operational matters, in the realm of security, it was said in H.C. 358/88 [19], at 546-561:

           

"There are indeed operational military circumstances in which judicial review is inconsistent with the place or time or with the nature of the circumstances; for example, when a military unit carries out an operation in the scope of which it must remove an obstacle or overcome opposition or respond on the spot to an attack on military forces or on civilians, and the operation is taking place at the time, or like circum­stances in which the competent military authority sees an operational need for immediate action. By the very nature of the matter, in such circumstances there is no room to delay the military operation which must be carried out on the spot".

 

In H.C. 4112/90 [16], (at p. 640): we went on to say on this issue

           

"Such circumstances existed in the case before us, where the Military Commander for a lengthy period tried many different measures until it became apparent to him that none of them could prevent an act of murder because of the narrow and winding streets of the location which did not allow the life of the victim to be safeguarded. This grave and uncontrollable situation in which human life is at risk obliges action on the spot to safeguard human life and immediately prevent the recurrence of such cases, as the Military Commander directed in the order. Among a right of argument in such circumstances, before implementing the order, involving a delay in taking action for the period necessary to hold the hearing in this Court, as described and requested in the petition, constitutes a substantial risk to human life and a real concern as to the frustration of the possibility of taking necessary action, as detailed in paragraph 7 of our judgment. In this example the supreme value of preserving human life takes priority over the value of a right to a hearing. This balance between these two values is the supreme value in our legal system".

 

            (b) The existence of the exception was also considered by Judge Yitzhak Kahan in his separate opinion in the Kawasme case [5]. He referred to the statement of Judge Witkon in H.C. 549/75 Noah Film Company v. Cinema Film Review Board, [21], at 760), according to which:

           

"There are of course situations in which the need to cancel a license or permit granted in error or without due consideration is so great and urgent that even if the rule of audi alteram partem was not complied with the court should hesitate to invalidate the decision for cancellation.

 

            Justice Yitzhak Kahan further stated:

 

"In the work of the learned author, H.W.R. Wade, Administrative Law, (Oxford, 4th ed., 1977, p. 451), the following was stated in this regard:

 

'Sometimes urgent action may have to be taken on ground of public health or safety, for example to seize and destroy bad meat exposed for sale or to order the removal to hospital of a person with an infectious disease. In such cases the normal presumption that a hearing must be given is rebutted by the circumstances of the case. So it is also, for obvious reasons, where the police have to act with urgency, e.g. in making arrests'.

           

            An example of a case in which - for reasons of safeguarding public security - the court in England justified infringing the rules of natural justice, can be found in the judgment in R. v. Secretary of State for Home Department, ex parte Honsenbal, (1977) [22]. In that case a deportation order was issued against an American journalist who had resided in England for a substantial period of time, and the Home Secretary refused to disclose all the details of the material in consequence of which the deportation order was made. In the judgment of the Court of Appeal, the petition was dismissed and the Court did not order the Minister to disclose details of the reasons for deportation. I am not sure that we would have adjudicated as the English Court of Appeal did in that case, but this instance does show that even in peaceful England, which does not face the danger of war, the court is willing to prefer a public interest of national security to the principles of natural justice. One may certainly do so when a state of emergency is involved which obliges immediate action. As the learned author J.F. Garner states in Administrative Law (London, 5th ed., 144 ( 1979):

 

'The full panoply of natural justice does not have to be observed in a case where this would be contrary to national security'.

           

            In the United States too it has been held on more than one occasion that the right to a hearing must give way in certain cases in states of emergency, when immediate action by the authority is necessary in order to safeguard important public interests. See B. Schwartz, Administrative Law (Boston - Toronto, 1976), The learned author states there inter alia the following at pages 210-211.

           

'In the emergency case, the emergency itself is complete justification for summary action. The right to be heard must give way to the need for immediate protection of the public.

 

The typical emergency case involves danger to public health or safety. But the emergency exception is not limited to health or safety cases."

 

            (c) In the Kawasme case [5] President Landau observed that if Regulation 112(8) could not be implemented in accordance with the said existing interpretation, thereof, the respondents in that case could have proposed revocation or modification of the Regulation by legislation (ibid., p. 120, opposite the letter E); so too according to Judge H. Cohen (ibid., p. 127, opposite the letter D). Obviously, those observations with regard to the possibility of legislation relate to circumstances in which it is sought to set aside the right of hearing for the purposes of defined exceptional cases, rather than legislation which revokes the right altogether.

           

            Justice Y. Kahan, on the other hand, believed that "the same source that imposes a prohibition may also revoke it", i.e., whoever initiated the right to a hearing as one to be observed ab initio, is also the one who can - by way of precedent rather than legislation - determine in what circumstances exceptions to the rule can be recognised.

           

            (d) The Respondents sought this time to refer in advance to the legislative option, and made the orders which are, as they are eatified, enactea "temporary provisions" permitting temporary deportation immediately after the issue of the order, the right of appeal being ancuitable only after the order is carried out. In our view the temporary provisions in the present case neither add nor subtract anything, whichever way one looks at it. If there is an exception to the right of a prior hearing, action can be taken in accordance with that exception and there is no need for a temporary provision; and if there is no exception to the right of hearing, the temporary provision is in any event invalid. As regards the question whether exceptions exist to the rules relating to the right to a hearing in deportation proceedings, as we have already stated, case law is to the effect that such exceptions do exist, and they are the result of the balance between the needs of security and the right to a hearing.

 

            We have not seen fit here to take a view on the question of whether an exception to the right of hearing existed in the circumstances herein, since we accept - according to the rule in the Kawasme case [5] (per Justice Landau and Y. Kahan) - that if there was no prior hearing, a subsequent hearing should be held, serving the object of giving an opportunity to the person concerned to present his case in detail, and the absence of a prior hearing does not per se invalidate the individual deportation orders.

           

            13. Is amending legislation in the present form valid, or, in other words, can the security legislation of a military commander determine that there was no legal duty to observe the right to a hearing before the deportation order was implemented?

           

            In view of the contents of paragraph 12 above, the question of the validity of the Temporary Provisions Order becomes devoid of practical legal meaning: the power to find that there is an exception in a specific concrete case, in which exigencies demand immediate action before granting the right to a hearing, is in any event inherent in the authority to exercise the power in respect whereof the right to a hearing is sought.

           

            However, so as to complete the picture, we shall also answer the question of the validity of general legislation, such as the Temporary Provision:

           

            If the Order purported to determine a new normative arrangement, without connection to or dependence on special concrete circumstances, the existence whereof must be examined in advance in any event, then it would be ultra vires the powers vested in the Military Commander. Security legislation cannot bring about the modification of general established norms of administrative law, which our legal system views as the fundamentals of natural justice. If the Temporary Provision sought to determine, as a rule, that henceforth any expulsion order can be implemented for a limited period without granting the right to a prior hearing, then does not grant legality to the said new arrangement. Only concrete exceptional circumstances can create a different balance between the conflicting rights and values, and such circumstances were not detailed in the wording of the Temporary Provisions. The Order laid down a general arrangement which will remain in force for so long as the Temporary Provision is in force. In other words, the Order laid down a limitation as regards the duration of the deportation, although it prescribed nothing in connection with defining the exceptional concrete circumstances in which the right of hearing can be restricted. It thereby sweepingly and in an overall way abrogated the right of hearing, and such power is not vested in the Military Commander.

 

            To conclude this point, since the Temporary Provisions sought to convert a valid general norm into another, without restriction or delineation for defined exceptional cases, the Temporary Provisions Order cannot be regarded as valid.

 

            As already explained, that is of no significance as regards the power to make deportation orders. The expulsion orders were expressly made on the basis of the provisions of Regulation 112(1) and in reliance on the powers vested pursuant thereto. The said Order relating to the Temporary Provisions did not create the power to make a deportation order but referred to Regulation 112. For the purpose of the case herein, it merely sought to determine arrangements with regard to the right of hearing; that and nothing more. We have found that the temporary provision is of no avail. The power to refrain from granting the right to a prior hearing is ancillary to the provisions of Regulation 112 in accordance with the explanation in paragraph 12 above, without the need for specific empowering legislation.

           

            We are therefore inherently brought back to the provisions of Regulation 112 in all its parts, including sub-regulation 112(8) thereof. This means that the power to make a deportation order exists and the hearing, by way of an appeal against the deportation order - which will take place after the order is carried out - should be conducted in accordance with Regulation 112(8), as interpreted by case law of this Court.

           

            14. The Petitioners have argued before us that the individual deportation orders are void by reason of defects in obtaining them, apart from the lack of a right of hearing. The Respondents have disputed this.

           

            We believe that in the present case the place for such arguments is before the consultative committee, to which the deportee may address his appeal. So long as the consultative committee has not otherwise decided, each individual order remains in force.

           

            15. The Respondents must now make practical arrangements for implementery the right of appearance before a consultative committee operating under Regulation 112(8) of the said Regula­tions in respect of anyone who so requests; that is to say, that if a written application is made by a deportee through the International Red Cross or otherwise, according to which the committee is asked to hear his appeal, then the applicant should be allowed to appear personally before the committee to enable it to obtain an impression of his oral explanations and to examine his case and the justification for performing the expulsion order in respect of him. Pending the appearance before the committee, he should also be allowed a personal meeting with counsel who asks to represent the deportee before the committee.

           

            The committee may hold its hearings at any place where the IDF can guarantee that they can properly take place.

           

            For the purpose of all the aforegoing, the Respondents must make practical arrangements, details of which should be decided by the authorities charged therewith. The commencement of such arrangements was described in the States' notice submitted to us on 25th January 1993, although they should be supplemented along the lines stated here.

           

            We have also taken note of the Attorney-General's notice of 25th January 1993, according to which further consideration of the security information concerning every deportee who files an appeal will be given within a reasonable time at the initiative of the Respondents.

           

            16. We shall conclude by referring to what was said by Judge Olshan (as he then was) in the Karbutli case [7], at p. 15:

           

"Whilst it is correct that the security of the State which necessitates a person's detention is no less important than the need to safeguard the citizen's right, where both objectives can be achieved together, neither one nor the other should be ignored".

 

            17. In conclusion, we have unanimously reached the following conclusions:

           

            (1) We find that as regards the personal expulsion orders, the absence of the right of prior hearing does not invalidate them. We order that the right of hearing should now be given as detailed above.

           

            (2) The order as to temporary deportation is void for the reason detailed in paragraphs 12(d) and 13 above. This conclusion does not invalidate the individual deportation orders.

           

            (3) The arguments against validity of the personal deportation orders, issued by virtue of Regulation 112 of the Defence (Emergency) Regulations, 1945 should, as aforesaid, be submitted to the consultative committee.

           

            Subject as aforesaid, we dismiss the petitions and discharge the orders nisi.

           

Given this 6th day of Shevat 5753 (28th January 1993).

HCJ 3451/02

1.  Mohammed Almandi

2.  MK Ahmed Tibi

3.  MK Mohammed Barakeh

v.

1.  The Minister of Defense, Mr. Benjamin Ben-Eliezer

2.  The Chief Of Staff

3.  The Commander of the Central Command of the Israeli Defense Forces

 

The Supreme Court Sitting as the High Court of Justice

[April 25, 2002]

Before President A. Barak, Justices D. Beinisch, I. Englard

 

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

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) It concerns the situation in the Church of the Nativity in Bethlehem, in which armed Palestinians had fortified themselves. In the church compound there were also unarmed Palestinians civilians, as well as clergymen. The clergymen, who were not in the same part of the compound as the Palestinians, received food, though the Palestinians did not. Petitioners requested that food be allowed into the compound. They asserted that preventing food from entering the compound was a violation of international law. Respondents reply that they are not preventing the civilians from exiting the compound—indeed, they are encouraging them to do so—and assuring them that no harm shall befall them. In response, petitioners asserted that the armed Palestinians were preventing the civilians from exiting the compound, and that they only way to ensure that food reached the civilians was to allow food into the compound for all inside.

 

Held: The Supreme Court held that Israel, finding itself in the middle of difficult battle against a furious wave of terrorism, is exercising its right of self defense under the Charter of the United Nations. This combat is being carried out according to the rules of international law, which provide principles and rules for combat activity. The Court found that, regarding the treatment of the armed Palestinians, the State had not violated international law. The problem was with the unarmed civilians inside the Church compound, those that were not connected to terror. The Court held that, in view of the reality in the compound, in which there was a well providing a certain amount of water, and food, even if it was only basic, and in view of the willingness of the respondents to provide extra food to the civilians even if they do not leave the compound, the respondents had fulfilled their obligation under international law.

 

Treaties Cited:

The Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949

 

Israeli Supreme Court Cases Cited:

[1]HCJ 3436/02 La Custodia Internazionale di Terra Santa v. Government of Israel (unreported decision)

[2]HCJ 168/91 Marcus v. The Minister of Defense IsrSC 45 (1) 467

[3]HCJ 3114/02 Barake  v. The Minister of Defense IsrSC 56(3) 11

[4]HCJ 320/80 Kawasma v. The Minister of Defense IsrSC 35 (3) 113

 

Israeli Books Cited:

[5]Y. Dinstein, The Laws of War (1983)

 

For the petitioners—Saadi Usama

For the respondent—Yochi Jensin

 

 

Judgment

President A. Barak

 

1. On March 29, 2002, the government decided to carry out a military operation—“Operation Defensive Wall”—against the Palestinian terror infrastructure in Judea and Samaria. The goal of the operation was to prevent the recurrence of the terror attacks which have plagued Israel. In the context of this operation, IDF forces entered Bethlehem on April 14, 2002. As IDF forces entered Bethlehem, approximately thirty to forty wanted Palestinians terrorists list broke into the Church of the Nativity, shooting as they entered. According to information in the hands of the security services, these men are responsible for the murder of Israeli civilians. Scores of armed Palestinian security services personnel also burst into the church compound. In addition, a number of civilians, unarmed and unconnected to the others, also entered the church.  In total, approximately two hundred Palestinians entered the compound. The armed Palestinians positioned themselves in the Basilica of the church.

 

2. The IDF surrounded the church compound. Several times, the IDF requested of all Palestinians, especially of the ill requiring medical care, to exit the compound. The message was conveyed to those in the compound that those who were not involved in terror activity, and who were not wanted by Israel, could leave the compound and go free. Those who were wanted—and these constituted a minority of the armed persons in the compound—were given the options of either standing trial in Israel or leaving Israel and the areas of the Palestinian Authority.

 

3. Many of those who entered the compound of the Church of the Nativity have since left. Those who left the compound included the wounded and the ill. These were examined by a medical team which had been set up adjacent to the church compound, and were evacuated to hospitals when necessary. Two bodies of armed persons were taken out for burial.  In addition, a number of civilians, including nine youths, took advantage of the opportunity they were given and left the compound. 

 

4. Initially, there were approximately forty eight clergymen in the Church of the Nativity. They congregated outside the basilica, in several compounds. The IDF, of course, allowed all clergymen the opportunity to leave the compound. Seventeen of them left the church. Water and food is being inserted into the compound for the clergymen, as per their needs. See HCJ 3436/02 La Custodia Internazionale di Terra Santa v. Government of Israel (unreported decision) [1]. 

 

5.  Currently, negotiations toward a resolution of the situation are being conducted between the Palestinians in the compound and the State of Israel.  The negotiations are being conducted by special teams that were established for that purpose.  During these negotiations, the La Custodia [1] petition was filed. That petition contained demands to provide food, water, medicine, and other necessary items to the clergy in the church, to connect the compound to electricity and water and bring a doctor into the compound, and to allow two bodies in the compound to be removed. The petition was filed by the owner and possessor of the compound. 

 

As arguments in the petition were being heard, negotiations were also being conducted on these same issues. As such, the La Custodiai [1] petition was rejected. There, Justice Strasberg-Cohen stated that “at the moment, the sides are in contact for the purpose of arriving at an arrangement. In the middle of a military operation, the Court should not interfere in such developments. In addition, as clarified by respondents, the IDF is doing all that is necessary to care for the clergy in a sensitive and humane manner.” Regarding the substantive issue, this Court noted that the clergymen were already receiving all assistance that they had requested.  We have already noted that seventeen priests, out of the forty eight in the compound, left of their own volition. Water and food are being brought in as necessary. Medication was brought in to the compound, according to prescriptions relayed by the clergymen to the IDF.

 

6.  The petition before us was filed by the Governor of Bethlehem (petitioner 1), who is inside the compound, and by two Israeli Members of Knesset (petitioners 2 and 3). They request that medical teams and representatives of the Red Cross be allowed to enter the compound, in order to provide food and medicine. In addition, they request that medical teams and representatives of the Red Cross be allowed to collect the bodies in the compound, and to provide medical care to the ill. They also request that ill persons requiring medical care be allowed to leave the compound. As noted, the solution to the problem of collection and burial of bodies has already been found. The problem of the ill that required medical treatment has also been solved. The only remaining problem is the issue of water and food for those in the compound. Even this problem has been solved, as far as the clergymen are concerned. As such, the problem reduces to the question of the Palestinians in the basilica.

 

7.  Respondents has notified us that the IDF has disconnected most of the compound from water and electricity. However, to the best of the army’s knowledge, there is a well in the compound, from which water is being pumped.  In addition, in certain areas of the compound, electricity is being provided by a generator. Furthermore, Palestinians who left the compound reported that there are bags of rice and beans inside. It is clear, however, that there is a shortage of food, and the petition here concerns that shortage. 

 

8.  Petitioners, during oral arguments of April 24, 2002, argued that the fact that Palestinians in the compound are being deprived of food is a severe breach of international law. Respondents reply that the petition is not justiciable. They assert that there is no justification for judicial intervention when the parties are in the middle of negotiations. Substantively, respondents argue that they are acting according to international law.

 

9.  Israel finds itself in the middle of difficult battle against a furious wave of terrorism. Israel is exercising its right of self defense. See The Charter of the United Nations, art. 51. This combat is not taking place in a normative void. It is being carried out according to the rules of international law, which provide principles and rules for combat activity.  The saying, “when the cannons roar, the muses are silent,” is incorrect.  Cicero’s aphorism that laws are silent during war does not reflect modern reality. I dealt with this idea in HCJ 168/91 Marcus v. The Minister of Defense [2], at 470-71, noting:

 

When the cannons roar, the muses are silent. But even under the roar of the cannons, the Military Commander must uphold the law. The strength of society in withstanding its enemies is based on its recognition that it is fighting for values that are worth defending. The rule of law is one of those values

 

In HCJ 3114/02 Barake, v. The Minister of Defense [3], decided only a few days ago, during the height of combat activities in “Operation Defensive Wall,” we stated

 

Even in a time of combat, the laws of war must be followed.  Even in a time of combat, all must be done in order to protect the civilian population. 

 

The foundation of this approach is not only the pragmatic consequence of a political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the aggression of terrorists rising up against it.  The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law and exploit its violation. The war against terror is also the law’s war against those who rise up against it. See HCJ 320/80 Kawasma v. The Minister of Defense [4], at 132.  Moreover, the State of Israel is founded on Jewish and democratic values. We established a state that upholds the law—it fulfills its national goals, long the vision of its generations, while upholding human rights and ensuring human dignity. Between these—the vision and the law— there lies only harmony, not conflict.

 

10.  Indeed, the State argues that it is acting according to the rules of international law. These are humanitarian laws, which Israel honors. Respondent asserts that “the means used by the IDF towards the Palestinians in the Church of the Nativity are not forbidden by international law. These means are proportionate—we have refrained from the use of military force in order to enter the compound, and allow armed Palestinians to leave the compound at any time that they wish to do so and, if they do so without their weapons, they will not be hurt, but rather arrested.” See para. 32 of respondents’ brief. On this issue we were referred to Articles 17 and 23 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 [hereinafter - the Fourth Geneva Convention].

 

11. We examined the arguments of the parties regarding international law. We are convinced that as far as the armed Palestinians are concerned, there is no breach of these rules. The majority of our attention was directed towards the Palestinian civilians in the compound.  These civilians are not armed, they are not government authorities, and there is no charge that they are connected with terrorism.  How can their rights be ensured? Respondents’ answer is that they are not preventing Palestinian civilians from exiting the compound, and are encouraging them to exit, while promising them that no harm shall befall them. Petitioners respond that, according to their information—information from Israeli sources, they claim—the armed Palestinians are preventing these civilians from exiting the compound, and the only way to ensure the provision of food to the civilians is by providing enough food for all who are in the compound.  To this the State replies that there is enough food inside the compound now and that, in any case, there is no possibility to ensure that additional food brought into the compound will be consumed by the civilians only, and that, clearly, additional food will also be consumed by the armed persons.

 

This situation troubled us. On April 30, 2002, we held a special session in order to be updated on this issue. We asked how it can be ensured that extra food—beyond the essentials—be provided to the civilians who remain in the compound.  We asked whether respondents would be willing to allow civilians to leave the compound, receive extra food, and return to the compound.  We received a positive answer.  Like the clergy, who exit the church to tend to religious matters and then return, so unarmed civilians will be allowed to leave the compound, receive extra food according to their needs outside of the compound, and then return to the church. It appears to us that, in view of the reality in the compound, in which there is a well providing a certain amount of water, and food, even if it is only basic, and in view of the willingness of the respondents to provide extra food to the civilians even if they do not leave the compound, the respondents have fulfilled their obligation under international law. See Article 23(a) of the Fourth Geneva Convention; see also A. Rogers, Law on the Battlefield 62 (1996); Y. Dinstein, The Law of War 140 (1983).

 

12.  Like many others, we hope that the events in the compound of the Church of the Nativity will come to an end quickly.  It is difficult to describe the gravity of the taking of a holy place by armed Palestinians, the desecration of its sanctity and the holding of civilians hostage. Negotiations between the two sides are taking place in order to find a solution to the difficult situation which has been created.  A solution to the problem must be found in the framework of these negotiations. Clearly, just as “this Court will take no position regarding the manner in which combat is being conducted,” see HCJ 3114/02 [3], we will not conduct the negotiations, and will not guide them. Responsibility for this issue rests on the shoulders of the executive branch and those acting on its behalf.

 

The petition is rejected.

 

Justice D. Beinisch

 

I agree.

 

Justice I. Englard

 

I agree with the opinion of my colleague, President A. Barak, and with his reasons. I would only like to add a few comments regarding the causes of this intolerable situation of the desecration of a Christian holy place—and not just any holy place, but one of the most ancient and significant holy places to the Christian communities.  Who is responsible for the fact that thugs burst in, by force, to the ancient basilica and did “things that ought not to be done?” Cf. Genesis 34:7. Who had the obligation to protect this holy place and prevent its invasion by armed men?  Who is responsible for the breach of the international law, which requires the protection of religious and cultural treasures from combat activities, and forbids their use for the purposes of war? See the provisions regarding holy places and cultural treasures in Geneva Protocol I, Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977; and Geneva Protocol II, Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1977.  Does this responsibility not rest on the shoulders of the Palestinian Authority which obligated itself to protect the holy places in areas under its control?  Did the Palestinian Authority take substantial steps to prevent this desecration, and did it make an effort to end it immediately?  We all deserve answers to these questions!

 

Decided according to the opinion of President  Barak. 

May 2, 2002